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WA Prisoners Lose Damages in Rectal Probe Suits
In the mid 80's the Washington DOC built two control units called Intensive Management Units (IMU's). One of the policies they implemented was a mandate that all prisoners entering or leaving the IMUs would be subjected to a rectal probe (also known as digital rape) supposedly to search for contraband. Over 2,000 such "probes" were conducted before the practice was finally halted. No contraband was ever found. There has been extensive litigation on this issue with over a hundred prisoners filing suit over being probed; several went to trial and won.
Prison officials had earlier sought and been denied qualified immunity for their actions. See Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988). In considering a consolidated appeal of eight probe cases that went to trial, including Wetmore v. Gardner, 735 F. Supp. 974 (ED WA 1990), the ninth circuit ruled that prison officials were entitled to qualified immunity from money damages because they could have "reasonably believed" that a policy of blanket probes of all IMU prisoners, without individualized suspicion, was legal. This ruling will dispose of all claims for money damages arising out of the probes.
The reason the court gives for its ruling in this case is that Tribble had produced sufficient evidence to show that the searches were conducted for punitive reasons and that a reasonable person would have known that searches conducted for illegitimate reasons were unconstitutional. Thus, the court denied qualified immunity in Tribble. It now grants qualified immunity to prison officials by holding that Wetmore failed to provide sufficient evidence that the policy was not legitimately motivated. Specifically, Wetmore failed to show that prison officials did not strip search the prisoners they probed, nor did Wetmore offer expert testimony or affidavits to support this theory.
It then goes on to hold that at the time the probes were being conducted the law was not clearly established that such "searches" by prison officials were unlawful. It cites the fact that such searches were specifically allowed by federal prison regulations and other federal and a Washington state court had upheld such searches. The appeals court holds that the district court erred in denying prison officials qualified immunity and allowing the cases to go to trial. The appeals court reversed all eight cases in the consolidated appeal. See: Hemphill v. Kincheloe, _____ F.2d _____ (9th Cir. 1993).
Prison officials had earlier sought and been denied qualified immunity for their actions. See Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988). In considering a consolidated appeal of eight probe cases that went to trial, including Wetmore v. Gardner, 735 F. Supp. 974 (ED WA 1990), the ninth circuit ruled that prison officials were entitled to qualified immunity from money damages because they could have "reasonably believed" that a policy of blanket probes of all IMU prisoners, without individualized suspicion, was legal. This ruling will dispose of all claims for money damages arising out of the probes.
The reason the court gives for its ruling in this case is that Tribble had produced sufficient evidence to show that the searches were conducted for punitive reasons and that a reasonable person would have known that searches conducted for illegitimate reasons were unconstitutional. Thus, the court denied qualified immunity in Tribble. It now grants qualified immunity to prison officials by holding that Wetmore failed to provide sufficient evidence that the policy was not legitimately motivated. Specifically, Wetmore failed to show that prison officials did not strip search the prisoners they probed, nor did Wetmore offer expert testimony or affidavits to support this theory.
It then goes on to hold that at the time the probes were being conducted the law was not clearly established that such "searches" by prison officials were unlawful. It cites the fact that such searches were specifically allowed by federal prison regulations and other federal and a Washington state court had upheld such searches. The appeals court holds that the district court erred in denying prison officials qualified immunity and allowing the cases to go to trial. The appeals court reversed all eight cases in the consolidated appeal. See: Hemphill v. Kincheloe, _____ F.2d _____ (9th Cir. 1993).
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Related legal case
Hemphill v. Kincheloe
| Year | 1993 |
|---|---|
| Cite | 987 F.2d 589 (9th Cir. 1993) |
| Level | Court of Appeals |
Hemphill v. Kincheloe, 987 F.2d 589 (9th Cir. 03/03/1993)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] Nos. 89-35825, 90-35043, 90-35123, 90-35124, 90- 35276, 90-35127, 90-35128, 90-35288, Nos. 89-35878, 90-35122, 90-35126, 90-35281, Nos. 90-35113, 90-35125, 90-35287, 90-35165, No. 90-35348
[4] filed: March 3, 1993.
[5] DONALD D. HEMPHILL; DANNY KAY HOWARD; DONALD BOOTH, PLAINTIFFS-APPELLEES,
v.
LAWRENCE KINCHELOE, WARDEN; AMOS REED, DEFENDANTS-APPELLANTS. RONALD GUILMET, JEFFREY HEATH, PLAINTIFFS-APPELLEES, V. W.L. KAUTZKY; LAWRENCE KINCHELOE; AMOS REED, ET AL., DEFENDANTS-APPELLANTS. BELVIN L. CARTER; GEORGE JOHNSON, PLAINTIFFS-APPELLEES, V. W.L. KAUTZKY; LAWRENCE KINCHELOE, WARDEN; BOOTH GARDNER; CHASE RIVELAND, DEFENDANTS-APPELLANTS. TERRENCE L. WETMORE, PLAINTIFF-APPELLEE, V. BOOTH GARDNER; WALTER L. KAUTZKY; LAWRENCE KINCHELOE, WARDEN; AMOS REED; JAMES SPAULDING, SUPERINTENDENT; RICHARD ZABOR, DEFENDANTS-APPELLANTS.
[6] Appeal from the United States District Court for the Eastern District of Washington. D.C. Nos. CV-86-953-JLQ, CV-89-156-JLQ, CV-86-368-JLQ, D.C. Nos. CV-86-618-JLQ, CV-87-784-JLQ, D.C. Nos. CV-87-552-JLQ, CV-88-226-JLQ, D.C. No. CV-86-168-JLQ. Justin L. Quackenbush, District Judge, Presiding.
[7] John Scott Blonien, Assistant Attorney General, Olympia, Washington, for the defendants-appellants.
[8] Gregory J. Wall, Port Orchard, Washington; Leo J. Driscoll, Spokane, Washington, for the plaintiffs-appellees.
[9] Before: Eugene A. Wright and Arthur L. Alarcon, Circuit Judges, and Harold M. Fong,*fn* District Judge. Opinion by Judge Wright.
[10] Author: Wright
[11] WRIGHT, Circuit Judge:
[12] We must decide whether the district court should have granted qualified immunity before trial to prison officials who implemented a policy permitting digital rectal probe searches on inmates before their entry into a secure area of the prison known as the Intensive Management Unit. The court relied heavily on our decision in Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988), cert. denied, 490 U.S. 1075, 104 L. Ed. 2d 650, 109 S. Ct. 2087 (1989), where we denied summary judgment on the basis of qualified immunity to the same prison officials.
[13] The district court allowed this case to proceed to trial without ruling on the officials' motion for summary judgment on the basis of qualified immunity. Later, the court erroneously bifurcated the qualified immunity issue from the trial and denied the officials qualified immunity as a matter of law when the jury concluded that the policy was not reasonably related to a legitimate penological purpose. We find that this was a misapplication of Tribble and hold that the prison officials are entitled to qualified immunity as a matter of law.
[14] I
[15] This case consolidates eight of the more than 100 cases filed by Washington State Penitentiary (WSP) prisoners who were subjected to digital rectal cavity searches. The general background of these cases was given in Tribble, 860 F.2d 321, and Wetmore v. Gardner, 735 F. Supp. 974 (E.D. Wash. 1990).
[16] In 1984, prison officials instituted a policy requiring that every inmate transferred to the Intensive Management Unit (IMU) would be subject to an involuntary digital rectal cavity search to detect contraband.*fn1 An inmate was asked to submit first to a strip search. After that search, he was secured with leg irons, a chain around his waist and handcuffs. Four or five guards escorted him to a hospital examination room. The digital probe of the inmate's rectal cavity occurred while he was still chained and in the presence of the search and escort squad. A member of the squad videotaped the search to ensure that procedures were properly followed and to monitor the inmate's behavior. No contraband was ever found.
[17] Terrence Wetmore, an inmate incarcerated at the WSP, brought this civil rights action alleging that he was deprived of his Fourth and Eighth Amendment rights when he was subjected to a digital rectal probe search on January 17, 1986, before his placement in the IMU. Wetmore testified that before the search, a guard told him, "Today, you meet Dr. Big Finger." When the guards came to transfer him, he refused to submit to the standard strip search. The guards subdued him and, in the process, injured his ankle. Because of his injury, he was taken to a hospital x-ray room, rather than an exam room, where he underwent a digital rectal probe.
[18] The jury returned a verdict against four of the five officials, awarding nominal damages of $1.00. The four officials found to be liable were administrative personnel who were instrumental in implementing the digital probe search policy. The fifth official, Nurse Zabor, who performed the search, was found not liable.
[19] The court denied the officials' motion for judgment notwithstanding the verdict or in the alternative for a new trial. The officials argue that the issue of whether they were entitled to qualified immunity should not have been bifurcated and that they are entitled to such immunity. They also attack jury instructions and challenge evidentiary rulings.
[20] In seven cases tried after Wetmore, the court applied the doctrine of offensive collateral estoppel to deny the officials the opportunity to relitigate the constitutional claims or the qualified immunity defense. Six inmates were awarded damages; Hemphill received attorney's fees. The officials in the case before us also appeal the court's application of this doctrine.
[21] II
[22] We review de novo the district court's denial of the defense of qualified immunity. Baker v. Racansky, 887 F.2d 183, 185 (9th Cir. 1989).
[23] Prison officials who have implemented a digital rectal probe policy are entitled to qualified immunity if, in light of the clearly established law at the time, a reasonable official could have believed that his conduct was lawful. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034 97 L. Ed. 2d 523 (1987). To determine whether this standard is satisfied, we recently established a two-part analysis: "1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?" Act Up!/Portland v. Bagley, No. 90-35888, slip op., (9th Cir. Feb. 10, 1993).
[24] In Tribble, we held that the law was clearly established that a digital rectal probe search policy must be reasonably related to a legitimate penological purpose. Tribble, 860 F.2d at 325. We agreed with the district court's finding that Tribble, a WSP inmate, had produced sufficient evidence to show that the searches were conducted for punitive purposes and that a reasonable person would have known that searches based on illegitimate motives violated Tribble's rights. Id. at 327. Thus, we affirmed the court's denial of defendants' summary judgment motion and allowed the case to go to trial.
[25] The facts in Tribble, however, were not identical to those before us. Wetmore's evidence regarding the punitive nature of the searches was neither as extensive nor as convincing. Unlike Tribble, Wetmore did not offer evidence to show that the officials frequently failed to strip search an inmate before searching the rectal cavity. Nor did he offer expert testimony or affidavits to support this theory. He could show only that he was not strip searched prior to the rectal search. Moreover, Wetmore had not been x-rayed right before his rectal cavity search.*fn2 Finally, Wetmore offered no evidence that the digital rectal search policy was used as a threat to influence inmates in the general population to conform to prison regulations. He offered a prison guard's crude comment that "Today, you meet Dr. Big Finger." An isolated statement does not support the contention that the search policy was used as a threat.
[26] Wetmore's evidence is insufficient to show that the searches were conducted for punitive purposes. However, this does not end our inquiry. Assuming that the searches were based on a legitimate penological purpose, we must determine whether their constitutionality was clearly established and whether a reasonable official could have believed they were lawful.
[27] At the time of the Wetmore search, it was not clearly established that digital rectal probe searches without individualized suspicion of high security risk inmates violated constitutional rights. In fact, the case law available to the prison officials in 1986 tended to establish the opposite proposition. See Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991) (a court must examine "closely analogous cases" decided prior to defendants' challenged actions to determine whether the right was clearly established), cert. denied, 112 S. Ct. 1262, 117 L. Ed. 2d 491 (1992).
[28] When Wetmore was searched, the use of digital rectal searches without cause on difficult inmates was permissible and sanctioned by federal regulations. See 28 C.F.R. § 541.48(a) (1986) (digital rectal searches permissible on inmates upon entry to control unit). At the time, only one federal appellate court had considered the issue and it held that digital rectal searches were constitutional. Daugherty v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 38 L. Ed. 2d 91, 94 S. Ct. 112, 94 S. Ct. 113 (1973) (upholding policy requiring a digital rectal examination prior to transferring an inmate out of prison to the custody of U.S. Marshals). A state court considering the question reached the same Conclusion. State v. Hartzog, 96 Wash. 2d 383, 635 P.2d 694 (Wash. 1981) (routine probe searches permitted on inmates prior to appearing in state court).*fn3 Other courts had considered the propriety of different body cavity searches, holding that the constitutionality of such searches depended on the circumstances. See United States v. Lilly, 576 F.2d 1240, 1244, 1246 (5th Cir. 1978) (although need for body cavity searches served a legitimate penological purpose, because no notice of the searches was given, the seizure was unconstitutional). As the Lilly court noted, had there been a valid prison regulation dealing with random body cavity searches, the notice requirement might have been satisfied and the search constitutional.
[29] In light of the information available to the officials at the time of the Wetmore search, the district court erred in allowing this case to proceed to trial without first considering whether reasonable officials could have believed that the policy regarding searches was constitutional.
[30] As the Supreme Court recently emphasized in Hunter v. Bryant, 116 L. Ed. 2d 589, 112 S. Ct. 534, 536 (1991), it is important to resolve immunity questions at the earliest possible stage of litigation. In Bryant, the Court rejected the approach of routinely submitting the question of immunity to the jury, asserting that, ordinarily, immunity questions should be decided long before trial. Id. at 537. The district court must determine whether officials acted reasonably under settled law in the circumstances, not whether another reasonable approach can be invented after the fact. Id.
[31] The Court concluded by emphasizing the breadth of the qualified immunity doctrine. The Court said that it "'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" Id. (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)).
[32] If a reasonable official could have believed that his actions were lawful, summary judgment on the basis of qualified immunity is appropriate. See Act Up!/Portland v. Bagley, No. 90-35888, slip op. at,. This determination should have been made before the district court considered whether the policy was constitutional.*fn4 See id. Only if there be a genuine issue of fact that would preclude a grant of summary judgment, should the court let the case to proceed to trial. Id. at 1079.
[33] Here, the district court allowed this case to proceed to trial without ruling on the officials' summary judgment motion. The court probably relied on our Tribble decision to deny summary judgment. Although we affirmed the district court's denial of defendants' summary judgment motion, we rejected Tribble's theory that the prison officials were automatically liable. We said the officials would still be entitled to qualified immunity "if the trier of fact finds that the searches are reasonably related to a legitimate penological goal or that the defendants reasonably could have believed that the searches were conducted to further such a purpose." Tribble, 860 F.2d at 328.
[34] Because of the differences between Tribble and this case and the importance of deciding the qualified immunity issue at the earliest point possible, the district court should not have taken this case to judgment without first ruling on the qualified immunity question. The parties' briefs and affidavits contained sufficient facts and legal authorities to allow the court to decide the issue. However, we need not remand for a resolution of the immunity question. Because the case proceeded to trial, we may rely on the record before us in holding that the officials are entitled to qualified immunity as a matter of law.
[35] We have already discussed the case law available to the officials at the time of the Wetmore search. In addition to that background, the officials testified at trial that they researched the legality of digital rectal searches before implementing the policy. WSP Superintendent Lawrence Kincheloe testified that he discussed the subject with WSP correctional officers who had worked with segregation units and with the staff at the Federal Bureau of Prisons in Marion, Illinois. He testified that it was his understanding that digital rectal searches were performed at Marion at the time WSP implemented its search policy.
[36] Both Kincheloe and Walter Kautzky, Deputy Secretary for the Washington Department of Corrections, testified that they relied on legal advice from the Washington Attorney General to support their Conclusion that the use of x-rays, as an alternative to the digital searches, was not a viable option under Washington law. Kautzky testified that the Attorney General's office closely monitored the Department of Corrections' policy-making process and that the policy would not have gained approval if it violated state law. Kautzky also testified that in 1986 he was aware that one other prison conducted digital rectal searches without cause.
[37] Wetmore's testimony that he was not strip searched and that a guard made a crude comment to him is insufficient to undermine the officials' assertion that they believed such searches were necessary to keep the IMU contraband-free or that the case law and advice on which they relied was faulty.
[38] Based on the information available to the officials at the time of Wetmore's search, the district court should have found that reasonable officials could have believed their conduct was lawful.
[39] III
[40] Because we decide that the officials are entitled to qualified immunity as a matter of law, we need not reach the other issues presented by this appeal. The seven cases consolidated with Wetmore's are reversed for the reasons stated in this opinion.
[41] REVERSED.
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Judges Footnotes
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[42] *fn* Honorable Harold M. Fong, United States District Court of the District of Hawaii, sitting by designation.
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Opinion Footnotes
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[43] *fn1 The IMU houses those inmates who present the greatest threat to the orderly and safe operation of the penitentiary. Its location outside the main institution and its special policies and procedures are designed to prevent the serious security breaches present in previous segregation units.
[44] *fn2 Tribble was subjected to a digital rectal search when he returned from the hospital. At the hospital, Tribble had had x-rays that showed he was not carrying contraband in his rectum.
[45] *fn3 Two district courts found that rectal probe searches were illegitimate where the institution offered no reason for their use. See Frazier v. Ward, 426 F. Supp. 1354, 1363-66 (N.D.N.Y. 1977) (blanket rectal probe searches of high-risk prison inmates invalidated when prison security interests not seriously jeopardized and searches conducted in humiliating manner); Hodges v. Klein, 412 F. Supp. 896, 899 (D.N.J. 1976) (absent showing of breach of security, anal inspection disallowed on prisoners transferring, under escort, from one segregated area of prison to another).
[46] *fn4 Under Act Up!/Portland, we must first decide whether reasonable officials could have believed that the searches were constitutional. See id. at 1077. If we find that the officials were reasonable in their belief, we need not decide whether the policy itself is constitutional. See id. at 1077-78. Because we conclude that the officials' belief was reasonable, we need not decide whether the search policy violated Wetmore's Fourth and Eighth Amendment rights.
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[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] Nos. 89-35825, 90-35043, 90-35123, 90-35124, 90- 35276, 90-35127, 90-35128, 90-35288, Nos. 89-35878, 90-35122, 90-35126, 90-35281, Nos. 90-35113, 90-35125, 90-35287, 90-35165, No. 90-35348
[4] filed: March 3, 1993.
[5] DONALD D. HEMPHILL; DANNY KAY HOWARD; DONALD BOOTH, PLAINTIFFS-APPELLEES,
v.
LAWRENCE KINCHELOE, WARDEN; AMOS REED, DEFENDANTS-APPELLANTS. RONALD GUILMET, JEFFREY HEATH, PLAINTIFFS-APPELLEES, V. W.L. KAUTZKY; LAWRENCE KINCHELOE; AMOS REED, ET AL., DEFENDANTS-APPELLANTS. BELVIN L. CARTER; GEORGE JOHNSON, PLAINTIFFS-APPELLEES, V. W.L. KAUTZKY; LAWRENCE KINCHELOE, WARDEN; BOOTH GARDNER; CHASE RIVELAND, DEFENDANTS-APPELLANTS. TERRENCE L. WETMORE, PLAINTIFF-APPELLEE, V. BOOTH GARDNER; WALTER L. KAUTZKY; LAWRENCE KINCHELOE, WARDEN; AMOS REED; JAMES SPAULDING, SUPERINTENDENT; RICHARD ZABOR, DEFENDANTS-APPELLANTS.
[6] Appeal from the United States District Court for the Eastern District of Washington. D.C. Nos. CV-86-953-JLQ, CV-89-156-JLQ, CV-86-368-JLQ, D.C. Nos. CV-86-618-JLQ, CV-87-784-JLQ, D.C. Nos. CV-87-552-JLQ, CV-88-226-JLQ, D.C. No. CV-86-168-JLQ. Justin L. Quackenbush, District Judge, Presiding.
[7] John Scott Blonien, Assistant Attorney General, Olympia, Washington, for the defendants-appellants.
[8] Gregory J. Wall, Port Orchard, Washington; Leo J. Driscoll, Spokane, Washington, for the plaintiffs-appellees.
[9] Before: Eugene A. Wright and Arthur L. Alarcon, Circuit Judges, and Harold M. Fong,*fn* District Judge. Opinion by Judge Wright.
[10] Author: Wright
[11] WRIGHT, Circuit Judge:
[12] We must decide whether the district court should have granted qualified immunity before trial to prison officials who implemented a policy permitting digital rectal probe searches on inmates before their entry into a secure area of the prison known as the Intensive Management Unit. The court relied heavily on our decision in Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988), cert. denied, 490 U.S. 1075, 104 L. Ed. 2d 650, 109 S. Ct. 2087 (1989), where we denied summary judgment on the basis of qualified immunity to the same prison officials.
[13] The district court allowed this case to proceed to trial without ruling on the officials' motion for summary judgment on the basis of qualified immunity. Later, the court erroneously bifurcated the qualified immunity issue from the trial and denied the officials qualified immunity as a matter of law when the jury concluded that the policy was not reasonably related to a legitimate penological purpose. We find that this was a misapplication of Tribble and hold that the prison officials are entitled to qualified immunity as a matter of law.
[14] I
[15] This case consolidates eight of the more than 100 cases filed by Washington State Penitentiary (WSP) prisoners who were subjected to digital rectal cavity searches. The general background of these cases was given in Tribble, 860 F.2d 321, and Wetmore v. Gardner, 735 F. Supp. 974 (E.D. Wash. 1990).
[16] In 1984, prison officials instituted a policy requiring that every inmate transferred to the Intensive Management Unit (IMU) would be subject to an involuntary digital rectal cavity search to detect contraband.*fn1 An inmate was asked to submit first to a strip search. After that search, he was secured with leg irons, a chain around his waist and handcuffs. Four or five guards escorted him to a hospital examination room. The digital probe of the inmate's rectal cavity occurred while he was still chained and in the presence of the search and escort squad. A member of the squad videotaped the search to ensure that procedures were properly followed and to monitor the inmate's behavior. No contraband was ever found.
[17] Terrence Wetmore, an inmate incarcerated at the WSP, brought this civil rights action alleging that he was deprived of his Fourth and Eighth Amendment rights when he was subjected to a digital rectal probe search on January 17, 1986, before his placement in the IMU. Wetmore testified that before the search, a guard told him, "Today, you meet Dr. Big Finger." When the guards came to transfer him, he refused to submit to the standard strip search. The guards subdued him and, in the process, injured his ankle. Because of his injury, he was taken to a hospital x-ray room, rather than an exam room, where he underwent a digital rectal probe.
[18] The jury returned a verdict against four of the five officials, awarding nominal damages of $1.00. The four officials found to be liable were administrative personnel who were instrumental in implementing the digital probe search policy. The fifth official, Nurse Zabor, who performed the search, was found not liable.
[19] The court denied the officials' motion for judgment notwithstanding the verdict or in the alternative for a new trial. The officials argue that the issue of whether they were entitled to qualified immunity should not have been bifurcated and that they are entitled to such immunity. They also attack jury instructions and challenge evidentiary rulings.
[20] In seven cases tried after Wetmore, the court applied the doctrine of offensive collateral estoppel to deny the officials the opportunity to relitigate the constitutional claims or the qualified immunity defense. Six inmates were awarded damages; Hemphill received attorney's fees. The officials in the case before us also appeal the court's application of this doctrine.
[21] II
[22] We review de novo the district court's denial of the defense of qualified immunity. Baker v. Racansky, 887 F.2d 183, 185 (9th Cir. 1989).
[23] Prison officials who have implemented a digital rectal probe policy are entitled to qualified immunity if, in light of the clearly established law at the time, a reasonable official could have believed that his conduct was lawful. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034 97 L. Ed. 2d 523 (1987). To determine whether this standard is satisfied, we recently established a two-part analysis: "1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?" Act Up!/Portland v. Bagley, No. 90-35888, slip op., (9th Cir. Feb. 10, 1993).
[24] In Tribble, we held that the law was clearly established that a digital rectal probe search policy must be reasonably related to a legitimate penological purpose. Tribble, 860 F.2d at 325. We agreed with the district court's finding that Tribble, a WSP inmate, had produced sufficient evidence to show that the searches were conducted for punitive purposes and that a reasonable person would have known that searches based on illegitimate motives violated Tribble's rights. Id. at 327. Thus, we affirmed the court's denial of defendants' summary judgment motion and allowed the case to go to trial.
[25] The facts in Tribble, however, were not identical to those before us. Wetmore's evidence regarding the punitive nature of the searches was neither as extensive nor as convincing. Unlike Tribble, Wetmore did not offer evidence to show that the officials frequently failed to strip search an inmate before searching the rectal cavity. Nor did he offer expert testimony or affidavits to support this theory. He could show only that he was not strip searched prior to the rectal search. Moreover, Wetmore had not been x-rayed right before his rectal cavity search.*fn2 Finally, Wetmore offered no evidence that the digital rectal search policy was used as a threat to influence inmates in the general population to conform to prison regulations. He offered a prison guard's crude comment that "Today, you meet Dr. Big Finger." An isolated statement does not support the contention that the search policy was used as a threat.
[26] Wetmore's evidence is insufficient to show that the searches were conducted for punitive purposes. However, this does not end our inquiry. Assuming that the searches were based on a legitimate penological purpose, we must determine whether their constitutionality was clearly established and whether a reasonable official could have believed they were lawful.
[27] At the time of the Wetmore search, it was not clearly established that digital rectal probe searches without individualized suspicion of high security risk inmates violated constitutional rights. In fact, the case law available to the prison officials in 1986 tended to establish the opposite proposition. See Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991) (a court must examine "closely analogous cases" decided prior to defendants' challenged actions to determine whether the right was clearly established), cert. denied, 112 S. Ct. 1262, 117 L. Ed. 2d 491 (1992).
[28] When Wetmore was searched, the use of digital rectal searches without cause on difficult inmates was permissible and sanctioned by federal regulations. See 28 C.F.R. § 541.48(a) (1986) (digital rectal searches permissible on inmates upon entry to control unit). At the time, only one federal appellate court had considered the issue and it held that digital rectal searches were constitutional. Daugherty v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 38 L. Ed. 2d 91, 94 S. Ct. 112, 94 S. Ct. 113 (1973) (upholding policy requiring a digital rectal examination prior to transferring an inmate out of prison to the custody of U.S. Marshals). A state court considering the question reached the same Conclusion. State v. Hartzog, 96 Wash. 2d 383, 635 P.2d 694 (Wash. 1981) (routine probe searches permitted on inmates prior to appearing in state court).*fn3 Other courts had considered the propriety of different body cavity searches, holding that the constitutionality of such searches depended on the circumstances. See United States v. Lilly, 576 F.2d 1240, 1244, 1246 (5th Cir. 1978) (although need for body cavity searches served a legitimate penological purpose, because no notice of the searches was given, the seizure was unconstitutional). As the Lilly court noted, had there been a valid prison regulation dealing with random body cavity searches, the notice requirement might have been satisfied and the search constitutional.
[29] In light of the information available to the officials at the time of the Wetmore search, the district court erred in allowing this case to proceed to trial without first considering whether reasonable officials could have believed that the policy regarding searches was constitutional.
[30] As the Supreme Court recently emphasized in Hunter v. Bryant, 116 L. Ed. 2d 589, 112 S. Ct. 534, 536 (1991), it is important to resolve immunity questions at the earliest possible stage of litigation. In Bryant, the Court rejected the approach of routinely submitting the question of immunity to the jury, asserting that, ordinarily, immunity questions should be decided long before trial. Id. at 537. The district court must determine whether officials acted reasonably under settled law in the circumstances, not whether another reasonable approach can be invented after the fact. Id.
[31] The Court concluded by emphasizing the breadth of the qualified immunity doctrine. The Court said that it "'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" Id. (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)).
[32] If a reasonable official could have believed that his actions were lawful, summary judgment on the basis of qualified immunity is appropriate. See Act Up!/Portland v. Bagley, No. 90-35888, slip op. at,. This determination should have been made before the district court considered whether the policy was constitutional.*fn4 See id. Only if there be a genuine issue of fact that would preclude a grant of summary judgment, should the court let the case to proceed to trial. Id. at 1079.
[33] Here, the district court allowed this case to proceed to trial without ruling on the officials' summary judgment motion. The court probably relied on our Tribble decision to deny summary judgment. Although we affirmed the district court's denial of defendants' summary judgment motion, we rejected Tribble's theory that the prison officials were automatically liable. We said the officials would still be entitled to qualified immunity "if the trier of fact finds that the searches are reasonably related to a legitimate penological goal or that the defendants reasonably could have believed that the searches were conducted to further such a purpose." Tribble, 860 F.2d at 328.
[34] Because of the differences between Tribble and this case and the importance of deciding the qualified immunity issue at the earliest point possible, the district court should not have taken this case to judgment without first ruling on the qualified immunity question. The parties' briefs and affidavits contained sufficient facts and legal authorities to allow the court to decide the issue. However, we need not remand for a resolution of the immunity question. Because the case proceeded to trial, we may rely on the record before us in holding that the officials are entitled to qualified immunity as a matter of law.
[35] We have already discussed the case law available to the officials at the time of the Wetmore search. In addition to that background, the officials testified at trial that they researched the legality of digital rectal searches before implementing the policy. WSP Superintendent Lawrence Kincheloe testified that he discussed the subject with WSP correctional officers who had worked with segregation units and with the staff at the Federal Bureau of Prisons in Marion, Illinois. He testified that it was his understanding that digital rectal searches were performed at Marion at the time WSP implemented its search policy.
[36] Both Kincheloe and Walter Kautzky, Deputy Secretary for the Washington Department of Corrections, testified that they relied on legal advice from the Washington Attorney General to support their Conclusion that the use of x-rays, as an alternative to the digital searches, was not a viable option under Washington law. Kautzky testified that the Attorney General's office closely monitored the Department of Corrections' policy-making process and that the policy would not have gained approval if it violated state law. Kautzky also testified that in 1986 he was aware that one other prison conducted digital rectal searches without cause.
[37] Wetmore's testimony that he was not strip searched and that a guard made a crude comment to him is insufficient to undermine the officials' assertion that they believed such searches were necessary to keep the IMU contraband-free or that the case law and advice on which they relied was faulty.
[38] Based on the information available to the officials at the time of Wetmore's search, the district court should have found that reasonable officials could have believed their conduct was lawful.
[39] III
[40] Because we decide that the officials are entitled to qualified immunity as a matter of law, we need not reach the other issues presented by this appeal. The seven cases consolidated with Wetmore's are reversed for the reasons stated in this opinion.
[41] REVERSED.
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Judges Footnotes
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[42] *fn* Honorable Harold M. Fong, United States District Court of the District of Hawaii, sitting by designation.
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Opinion Footnotes
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[43] *fn1 The IMU houses those inmates who present the greatest threat to the orderly and safe operation of the penitentiary. Its location outside the main institution and its special policies and procedures are designed to prevent the serious security breaches present in previous segregation units.
[44] *fn2 Tribble was subjected to a digital rectal search when he returned from the hospital. At the hospital, Tribble had had x-rays that showed he was not carrying contraband in his rectum.
[45] *fn3 Two district courts found that rectal probe searches were illegitimate where the institution offered no reason for their use. See Frazier v. Ward, 426 F. Supp. 1354, 1363-66 (N.D.N.Y. 1977) (blanket rectal probe searches of high-risk prison inmates invalidated when prison security interests not seriously jeopardized and searches conducted in humiliating manner); Hodges v. Klein, 412 F. Supp. 896, 899 (D.N.J. 1976) (absent showing of breach of security, anal inspection disallowed on prisoners transferring, under escort, from one segregated area of prison to another).
[46] *fn4 Under Act Up!/Portland, we must first decide whether reasonable officials could have believed that the searches were constitutional. See id. at 1077. If we find that the officials were reasonable in their belief, we need not decide whether the policy itself is constitutional. See id. at 1077-78. Because we conclude that the officials' belief was reasonable, we need not decide whether the search policy violated Wetmore's Fourth and Eighth Amendment rights.
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