Decision to throw out suit affirmed

A panel of appellate judges disagreed Thursday about whether an Arkansas prison inmate was entitled to a hearing on his complaint that a visual body-cavity inspection by prison guards violated his Fourth Amendment rights.

Two members of the three-judge panel agreed with U.S. District Judge D. Price Marshall Jr.'s decision to dismiss the handwritten, pro-se lawsuit on the grounds that the allegations "failed to rise to a constitutional violation."

But Judge Kermit Bye of Fargo, N.D., disagreed with his fellow panelists at the 8th U.S. Circuit Court of Appeals in St. Louis, writing in a partial dissent that he thinks Marshall should have conducted a "balancing test" to weigh the need for the search against an invasion of inmate Kendrick C. Story's personal rights.

"Despite broad rights of correctional officers to search prisoners, there are limits on when strip searches are appropriate," Bye wrote, citing previous 8th Circuit rulings. In those rulings, the appellate court said district judges may consider less-invasive techniques in deciding whether a strip search was reasonable, found it relevant that a strip search was conducted in a private bathroom, and held that strip searches should be conducted as far from public view as possible without compromising security concerns, in a manner that isn't degrading or humiliating.

In his lawsuit, Story said he was returning to the Williams Correctional Facility from a school at the Pine Bluff unit on April 16, 2013, when officers at the gate told him to remove his clothes, lift his genitals, and bend over and spread his buttocks for a visual body-cavity search. He complained that the search took place in front of other inmates and in view of two security cameras, and that female guards watched through a video feed from cameras in the master control room.

Marshall dismissed the case on July 30, 2013.

U.S. Circuit Judges Steven M. Colloton of Des Moines, Iowa, and Raymond W. Gruender of St. Louis said in their majority ruling affirming the dismissal that the prison guards were entitled to qualified immunity, making it "unnecessary and inefficient" to even consider whether there was a constitutional violation.

"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law," the majority opinion said, citing a 2013 ruling.

The majority also said that the U.S. Supreme Court "never has resolved whether convicted inmates retain a Fourth Amendment right against unreasonable searches while in custody," although it has said it didn't apply to a search of a prison cell because of "the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order."

The 7th U.S. Circuit Court of Appeals, based in Chicago, has said inmates retain no rights under the Fourth Amendment regarding visual inspections by guards, but the 8th Circuit has said inmates are entitled to Fourth Amendment protections against unreasonable searches of their bodies, the majority opinion noted.

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Decision to throw out suit affirmed