CA3: Strip searching an inmate in isolation 3 times a day serves no penological purpose and is enjoined

Strip searching an inmate in isolation three times a day serves no penological purpose and is enjoined. Parkell v. Danberg, 2016 U.S. App. LEXIS 15092 (3d Cir. Aug. 17, 2016):

Turning to the balancing of interests, we do not understand the State Defendants to be disputing that the searches are a significant intrusion into bodily privacy. The Court in Bell expressed no doubt that visual body-cavity searches constituted a significant intrusion. 441 U.S. at 558, 560 (“Admittedly, this practice instinctively gives us the most pause. … We do not underestimate the degree to which these searches may invade the personal privacy of inmates.”). And we have recognized that even strip searches “less intrusive than … visual body-cavity searches” are an “extreme intrusion on privacy.” Florence I, 621 F.3d at 307.

Regarding the countervailing security interests, we again emphasize that our review is deferential and that the State Defendants’ burden is light, for the reasons already given. Nonetheless, on the record before us, we conclude that the particular search policy enforced in C-Building is not reasonably related to VCC’s legitimate interests in detecting and deterring contraband, particularly given the significant intrusiveness of the thrice-daily visual body-cavity searches.

The State Defendants are unable to articulate a single plausible theory as to how inmates in isolation in C-Building would have thrice-daily opportunities to smuggle in contraband from outside their cells or use unsupervised time in their locked cells to transform a harmless object into something dangerous. And we cannot imagine a plausible scenario ourselves. It is undisputed that inmates in isolation in C-Building live in stripped-down cells in which they wear only t-shirts, boxer briefs, and socks, are not permitted to keep rags, towels, or rolls of toilet paper, and are provided with soap and other hygienic items only during their thrice-weekly showers. And according to Parkell’s version of events, the credibility of which we do not doubt in the context of summary judgment, he left his isolation cell only three times per week for brief showers and had no human contact while in isolation, except for daily visits from nurses for the limited purpose of dispensing medication (along with, of course, the thrice-daily visual body-cavity searches themselves). He therefore had few, if any, opportunities to obtain contraband — and certainly not three opportunities per day — which distinguishes this case from the searches in Bell that took place after visitations involving in-person contact.

Parkell’s daily visits from nurses and thrice-weekly visits to the showers cannot justify the quantity of searches. It may well be reasonable for VCC to conduct visual body-cavity searches of C-Building inmates after each such visit. But at most, that would justify ten searches per week, not twenty-one. And although the State Defendants have suggested that Parkell’s contact with medical personnel while in isolation was more extensive, they conceded at oral argument that the record does not evidence thrice-daily interactions. In any event, in the context of summary judgment, we construe the record in Parkell’s favor, crediting the portions that describe only once-daily visits from nurses dispensing medication.

The fact that Parkell, like others in C-Building, was being punished for disciplinary violations does not alter our conclusion. Arguably, it does magnify the State Defendants’ security interest, insofar as inmates who have already broken prison rules may be more likely to seek and utilize dangerous contraband. But the reasonable relationship to the search policy is still missing. When dangerous inmates are completely isolated in C-Building, it is the isolation that prevents the smuggling of contraband. Thrice-daily bodily searches have little, if any, value in that context unless the period of complete isolation has somehow been interrupted.