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United States Court of Appeals,
Fifth Circuit.
No. 92-3759.
Keith David ELLIOTT, Plaintiff-Appellant,
Bruce N. LYNN, Secretary, Louisiana Department of Corrections,
Nov. 17, 1994.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before GARWOOD, JOLLY and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal arises from an institution-wide "shakedown" of the
Louisiana State Penitentiary, ordered by the defendant Bruce N.
Lynn, secretary of the Louisiana Department of Corrections, because
of an increasing number of murders, suicides, stabbings, and
cuttings among the inmate population. Under Lynn's order, the
plaintiff, David Keith Elliott, along with all other prisoners,
submitted to a visual body cavity search at the prison. The search
was conducted in the general presence of other inmates, several
guards, and three other bystanders. Following this search, Elliott
filed suit pursuant to 42 U.S.C. 1983 against Lynn. The United
States District Court for the Middle District of Louisiana granted
Lynn's motion for summary judgment and dismissed Elliott's
complaint. The court held that the search did not violate
Elliott's Fourth Amendment right to be free from unreasonable
search and seizure, nor did it deprive Elliott of a state created

liberty interest without due process of law.
Elliott appeals the dismissal of his complaint, contending
that the search violated his Fourth and Fourteenth Amendment rights
under the United States Constitution. He also contends that Lynn
is not entitled to the protection provided by qualified immunity.1
During the period immediately preceding June 9, 1989, an
extraordinary number of murders, suicides, stabbings, and cuttings
occurred within the Louisiana State Penitentiary. These
circumstances created an emergency situation, and the defendant
Lynn ordered an institution-wide shakedown on June 9, 1989. All
3,164 prisoners, including Elliott, were subjected to a visual body
cavity search over a period of two and one-half days. To
facilitate this massive search effort, Lynn brought in additional
correctional officers.
Elliott, along with all the members of his prison camp, were
gathered for inspection in one area of the camp's dormitory. The
prisoners were searched in groups of five or six with one officer
visually searching each inmate, while the other fifty-five members
of the camp were present and awaited their inspections. Several
non-searching officers also were present in the room for safety
purposes, along with the defendant Lynn. Two news media personnel
and the airplane pilot for Lynn stood in a wide walkway-hall that
1Lynn included in his motion for summary judgment a claim of
qualified immunity. Although the district court did not consider
qualified immunity in its judgment, the parties include this
issue for review on appeal.

opened into the large room and, if interested, could have observed
the strip search.
Ten days following this institution-wide shakedown, a district
court judge declared the Louisiana State Penitentiary a state of
emergency relying on facts submitted to the judge prior to the
strip search.
Elliott filed this suit against Lynn in the United States
District Court for the Middle District of Louisiana pursuant to 42
U.S.C. 1983. After considering the parties' motion and
cross-motion for summary judgment, the district court denied
Elliott's motion, granted Lynn's motion and dismissed the complaint
with prejudice.2 The court held that the search did not violate
Elliott's Fourth Amendment rights because the institution-wide
search was a legitimate means to regain control, discipline, and
security within the prison. The court further determined that
although the search could have been conducted with more privacy,
the correctional officers were not required to use the least
restrictive means in performing the search. Finally, the court
found that although the regulation defining a visual body cavity
search created a protected liberty interest under the Fourteenth
Amendment, Elliott was not deprived of liberty without due process
of law because adequate post-deprivation remedies were available to
2The district court referred the motions to a magistrate
judge who issued a report recommending that summary judgment be
granted in favor of Lynn. The district court granted Lynn's
motion for the reasons set forth in the magistrate judge's
report. Accordingly, we will refer to the district court's
opinion in this case, as the recommendation of the magistrate

protect Elliott's rights of due process.
On appeal, Elliott argues that (1) the search was conducted in
such a place and manner that his privacy rights under the Fourth
Amendment were violated; (2) state prison regulations created a
liberty interest that restricted body cavity searches and this
search deprived him of his protected liberty interest without due
process in violation of the Fourteenth Amendment; and (3) Lynn is
not entitled to the protection provided by qualified immunity.
We review a grant of summary judgment de novo, applying the
same standard used by the district court. Calpetco 1981 v.
Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993).
Under Rule 56(c) of the Federal Rules of Civil Procedure, we
examine evidence presented to determine that there is "no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56(c). Once a
properly supported motion for summary judgment is presented, the
burden shifts to the non-moving party to set forth specific facts
showing that there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th
Cir.1994). We must review "the facts drawing all inferences most
favorable to the party opposing the motion." Matagorda County v.
Russell Law, 19 F.3d 215, 217 (5th Cir.1994).
Elliott contends that the strip search violated his rights

under the Fourth Amendment to be free from unreasonable searches.
However, Elliott substantially narrows our review by conceding that
the scope and justification for the search were not unreasonable.
Consequently, the focus of our inquiry is whether the manner and
the place of the strip search were unreasonable under Fourth
Amendment standards. In essence, Elliott argues that there were
three areas--a gameroom, a bathroom, and a television room--a few
feet from the location of the actual search where individual
searches could have been conducted with substantially more privacy
and minimal inconvenience. Thus, he contends that the search was
constitutionally unreasonable because it was unnecessarily
conducted en mass in a non-private area and in the presence of
non-essential personnel.
A prisoner's rights are diminished by the needs and
exigencies of the institution in which he is incarcerated. He thus
loses those rights that are necessarily sacrificed to legitimate
penological needs. United States v. Lilly, 576 F.2d 1240, 1244
(5th Cir.1978). The Fourth Amendment, however, requires that
"searches or seizures conducted on prisoners must be reasonable
under all the facts and circumstances in which they are
performed."3 Lilly, 576 F.2d at 1244. Because a prison
3We have noted in Valencia v. Wiggins, 981 F.2d 1440, 1443-
44 (5th Cir.1993) and Brothers, 28 F.3d at 457, that the Fourth
Amendment's application in the prison context has been
significantly limited by the Supreme Court in Hudson v. Palmer,
468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984).
Hudson held only that prisoners have no justified expectation of
privacy in their prison cells. Hudson, 468 U.S. at 526, 104

administrator's decisions and actions in the prison context are
entitled to great deference from the courts, the burden of proving
reasonableness is a light burden. Id. at 1245.
Under appropriate circumstances, visual body cavity searches
of prisoners can be constitutionally reasonable. See Bell v.
Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447
The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In
each case it requires a balancing of the need for the
particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
Bell, 441 U.S. at 559, 99 S.Ct. at 1884. We have interpreted this
statement of reasonableness as striking a balance "in favor of
deference to prison authorities' views of institutional safety
requirements against the admittedly legitimate claims of inmates
not to be searched in a humiliating and degrading manner." Watt v.
City of Richardson Police Dep't., 849 F.2d 195, 196 (5th Cir.1988).
We are required, as a matter of both common sense and law, to
accord prison administrators great deference and flexibility in
carrying out their responsibilities to the public and to the
S.Ct. at 3200. Furthermore, Brothers simply held that the Fourth
Amendment does not apply to the seizure of prisoners through an
official's use of excessive force. Brothers, 28 F.3d at 457. No
Supreme Court case has overruled the holding of Lilly that the
Fourth Amendment applies to body cavity searches of prisoners.
Thus, Lilly is still the law of this circuit concerning the
Fourth Amendment's application to visual body cavity searches in
the prison setting. See also Albright v. Oliver, --- U.S. ----,
114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (suggesting Fourth
Amendment has some applicability in prison context).

inmates under their control, including deference to the
authorities' determination of the "reasonableness of the scope, the
manner, the place and the justification for a particular policy."
Hay v. Waldron, 834 F.2d 481, 486 (5th Cir.1987). Furthermore, we
have found that when evaluating the security policies adopted by
the prison administrators, the court is not required to apply a
"least restrictive means" test. Hay, 834 F.2d at 485.
We now turn to consider the conditions at the Louisiana State
Penitentiary on June 9, 1989.
The emergency situation created by an increasing number of
prison murders, suicides, stabbings, and cuttings clearly
justified, as conceded by Elliott, an immediate search of the
inmates to seize the weapons of this violence, as well as other
contraband, in order to restore and maintain security. Because
this crisis required immediate action and because of the large
number of inmates involved in the institution-wide shakedown, Lynn
was fully justified in conducting the strip search in the most
time-efficient place and manner available. Lynn decided that under
these emergency circumstances the search must be conducted on a
collective, as opposed to an individual basis. Elliott argues that
Lynn overlooked alternative methods and places to conduct the
search that would have been less intrusive on his privacy rights.
He argues that individual searches in nearby, smaller, more private
areas would have protected the privacy and personal dignity of the
prisoners. These considerations, he argues, were completely

ignored by the authorities conducting the search. As Lynn
explained, however, individual searches of the prisoners in private
areas in the dormitory, with one guard performing the search plus
one additional guard present for security purposes, would have been
extremely time consuming, especially considering the additional
time needed for the inmate to undress and redress. This lengthy
process, when applied to more than 3,000 individuals, would have
defeated the purpose of the swift institution-wide shakedown, by
allowing the inmates a greater opportunity to hide or dispose of
weapons and contraband and by prolonging the violence.
Furthermore, the presence of additional guards was clearly
appropriate because of the method of the search, the expediency
demanded by the circumstances, and the urgency of safety concerns.
Although the record reflects that Lynn's pilot and the two news
media personnel could have observed the search from the walkway
that opened into the large room, the record does not reflect that
they demonstrated any interest in viewing the searches.
Furthermore, the room in which the search was conducted was the
only one large enough to conduct the collective search. As the
commanding officer, the justification of Lynn's presence cannot be
questioned. Thus, on the record before us, we defer to Lynn's
sound judgment regarding all aspects of the search and will not
apply the benefit of hindsight to question the secondary details of
this search. Indeed, even with the benefit of hindsight, his
decisions seem appropriate under the exigent circumstances that
faced him. Although it is certainly true that the privacy of the

prisoners was compromised, we hold that the search was
constitutionally reasonable in the context of prisoner's rights
under the Fourth Amendment.4
In sum, we AFFIRM the district court's judgment finding that
the institution-wide visual body cavity search in the place and
manner conducted did not violate the Fourth or Fourteenth
Amendments to the United States Constitution. For the foregoing
reasons, the judgment of the district court dismissing Elliott's
complaint is
GARWOOD, Circuit Judge, concurring specially:
I would hold that the Eighth Amendment, not the Fourth
4Elliott argues that Louisiana Department of Public Safety
and Corrections Regulation 30-25 creates a protected liberty
interest relating to limitations on body cavity searches because
it contains an exclusive listing of the situations when such
searches may be conducted. Because a search pursuant to
emergency circumstances, such as the one in this case, is not
contained in this exclusive list, Elliott contends that the
search deprived him of liberty without due process of law.
Despite Elliott's argument to be free from such a search, we need
not decide whether the language of the regulation is sufficiently
mandatory to create a protected liberty interest. See Kentucky
Dep't. of Corrections v. Thompson, 490 U.S. 454, 464 n. 4, 109
S.Ct. 1904, 1910 n. 4, 104 L.Ed.2d 506 (1989) (finding protected
liberty interest exists if statute contains mandatory language
requiring application of certain substantive predicates before
reaching desired result). Elliott concedes that Lynn had a right
to suspend the regulation in an emergency, which includes the
alleged mandatory language contained in the regulation that
Elliott relies upon for creation of his liberty interest. We
hold that because Lynn effectively suspended the regulation prior
to the search, any liberty interest that might have otherwise
existed is not implicated.
Finally, disposing of this case on the merits renders
moot any further issues concerning qualified immunity.

Amendment, is the standard by which a prison inmate's protection
against searches by prison authorities is to be measured. In
Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393
(1984), the Court stated:
"A right of privacy in traditional Fourth Amendment terms is
fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure
institutional security and internal order." Id. at 527, 104
S.Ct. at 3201 (footnote omitted).
"Our holding that respondent does not have a reasonable
expectation of privacy enabling him to invoke the protections
of the Fourth Amendment does not mean that he is without a
remedy for calculated harassment unrelated to prison needs....
The Eighth Amendment always stands as a protection against
"cruel and unusual punishments.' " Id. at 529, 104 S.Ct. at
The majority would restrict Hudson to searches of prison
cells. That was the setting in which Hudson arose, but its
language is not so limited. Nor is it logical to fracture the
Fourth Amendment in this bizarre manner, so that convicted inmates'
protection against certain prison searches is measured by the
Fourth Amendment while their protection against other such searches
is measured by the Eighth Amendment. See also Whitley v. Albers,
475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (Eighth
Amendment applied to inmate shot in quelling of prison riot);
Brothers v. Klevenhagen, 28 F.3d 452, 457 (5th Cir.1984) (Fourth
Amendment inapplicable to seizure claim of pre-trial detainee);
Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993)
I recognize that our decision in United States v. Lilly, 576

F.2d 1240 (5th Cir.1978), held that the Fourth Amendment constrains
prison officials in their body cavity searches of inmates. Lilly,
however, has been superseded by Hudson, which locates the
constraint on prison inmate searches within the Eighth Amendment.1
For reasons not significantly different from those given by
the majority in upholding this search under the Fourth Amendment,
I conclude that it did not violate Elliott's rights under the
Eighth Amendment.
Accordingly, I join in the judgment of affirmance, but would
rest that determination on the Eighth Amendment, not the Fourth.2

1The majority also cites Bell v. Wolfish, 441 U.S. 520, 99
S.Ct. 1861, 60 L.Ed.2d 447 (1979), and Albright v. Oliver, ---
U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). As pointed out
in Brothers at 456 n. 3, 457, neither decision supports
application of the Fourth Amendment here. Fourth Amendment
applicability was expressly assumed arguendo only in Bell. Id.
at 557, 99 S.Ct. at 1884. The dicta in the Albright plurality
opinion merely says "The Framers considered the matter of
pretrial deprivations of liberty and drafted the Fourth Amendment
to address it." Id. at ----, 114 S.Ct. at 813 (emphasis added).
Albright does not address conduct in jail after booking, much
less in prison after conviction.
2I join in the majority's discussion and resolution of the
procedural due process claim.

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