70 F.

3d 1144

Willie T. HAYES, Plaintiff-Appellant,

v.
Major MARRIOTT; Major Soares; Perry Roeker; Mr. Gaskil;
Richard Mar, Assistant Superintendent; and the
members of the special Operations
Response Team of January 24,
1991, Defendants-Appellees.
No. 93-1181.

United States Court of Appeals,

Tenth Circuit.
Nov. 20, 1995.

Willie T. Hayes, Fremont Correctional Facility, pro se.

Larry D. Tannenbaum, Office of the Attorney General, Denver, Colorado,
for Defendants-Appellees.
Before SEYMOUR, Chief Judge, McKAY, and HENRY, Circuit Judges.
HENRY, Circuit Judge.

Plaintiff-appellant Willie T. Hayes appeals the district court's dismissal of his

complaint alleging that state prison officials violated his Fourth, Eighth, and
Fourteenth Amendment rights during a January 1991 search of inmates at the
Arkansas Valley Correctional Facility. Because the record does not support the
grant of summary judgment against Mr. Hayes on his Fourth Amendment
claim, we reverse and remand for further proceedings.

I. BACKGROUND
2

In his complaint, Mr. Hayes alleges that in January 1991 he was subjected to an
unreasonable body cavity search that was videotaped by prison officials. He
maintains that all inmates in the facility were searched in common areas in the
presence of female corrections officers as well as "several nonessential

personnel" such as case managers and secretaries. Rec. doc. 3, at 4. Mr. Hayes's
complaint describes the search in some detail: "I was required to open my
mouth while a flashlight was shone waggle my tongue pull my cheeks out frisk
my hair, pull my ears and lift my testicles. I was required to turn around lift my
feet bend over and spread my buttocks while 100 people watched." Id. The
complaint also alleges that prison officials improperly removed curtains from
bathrooms, allowing inmates to be easily observed by female officers.
3

Mr. Hayes's complaint asserts that the body cavity search and the removal of
bathroom curtains violated his rights under the Fourth, Eighth, and Fourteenth
Amendments. The complaint names various prison officials as defendants and
seeks declaratory, injunctive, and monetary relief under 42 U.S.C. Sec. 1983.

Pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) (en banc) (per
curiam), the district court directed the defendant prison officials to file a report
responding to Mr. Hayes's allegations. After receiving the Martinez report, the
court referred the case to a magistrate judge, who recommended dismissal of
all of Mr. Hayes's claims. The district court agreed with the magistrate's
recommendations. The court dismissed the Eighth and Fourteenth Amendment
claims without prejudice, noting that there was a continuing class action suit
addressing conditions of confinement at the Arkansas Valley Correctional
Facility, see Rec. doc. 29, at 1 (citing Arguello v. Romer, No. 88-C-1335
(D.Colo. May 6, 1991)) (granting class certification), and that Mr. Hayes
should file a motion to intervene in the Arguello case if he wanted to pursue
those claims.1 As to Mr. Hayes's Fourth Amendment claim, the district court
adopted the magistrate's recommendations and dismissed the claim with
prejudice.2

II. DISCUSSION
A. Standard of Review
5

On appeal, Mr. Hayes challenges the district court's dismissal of his Fourth
Amendment claim regarding the January 1991 search.3 Initially, we note that in
reviewing Mr. Hayes's allegations, the magistrate judge relied on factual
assertions in the Martinez report submitted by the defendant prison officials.
See Rec. doc. 20, at 4 (discussing the reasons given by prison officials for
videotaping the search and the fact that only the warden had viewed the
videotapes). Several of those assertions were controverted by allegations in Mr.
Hayes's verified complaint. As the magistrate judge considered matters outside
the scope of the pleadings, we must treat the dismissal of Mr. Hayes's Fourth
Amendment claim as a grant of summary judgment to the defendant prison

officials. See Mosier v. Maynard, 937 F.2d 1521, 1525 (10th Cir.1991); Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).
6

We review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed.R.Civ.P. 56(c). Applied
Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th
Cir.1990). "Summary judgment is appropriate when there is no genuine dispute
over a material fact and the moving party is entitled to judgment as a matter of
law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). We must
view the record in the light most favorable to the party opposing summary
judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105,
1110 (10th Cir.1991).

These rules are applicable in determining whether a Martinez report establishes

that prison officials are entitled to summary judgment: "A Martinez report is
treated like an affidavit, and the court is not authorized to accept the factual
findings of the prison investigation when the plaintiff has presented conflicting
evidence." Hall, 935 F.2d at 1111. "The plaintiff's complaint may also be
treated as an affidavit if it alleges facts based on the plaintiff's personal
knowledge and has been sworn under penalty of perjury." Id.

B. Prisoner Searches
8

As the district court noted, the Fourth Amendment does not establish a right to
privacy in prisoners' cells. Hudson v. Palmer, 468 U.S. 517, 522-30, 104 S.Ct.
3194, 3197-202, 82 L.Ed.2d 393 (1984). However, prisoners do retain a limited
constitutional right to bodily privacy, particularly as to searches viewed or
conducted by members of the opposite sex. See Fortner v. Thomas, 983 F.2d
1024, 1030 (11th Cir.1993); Levoy v. Mills, 788 F.2d 1437, 1439 (10th
Cir.1986); Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.1982) (per
curiam); see also Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir.1994) ("
'[O]ne of the clearest forms of degradation in Western Society is to strip a
person of his clothes. The right to be free from strip searches and degrading
body inspections is thus basic to the concept of privacy.' ") (quoting 3 Privacy
Law and Practice p 25.02 (George B. Trubow ed., (1991)).

Nevertheless, prisoners' constitutional rights must be exercised with due regard

for the requirements of prison administration. Turner v. Safley, 482 U.S. 78,
84-85, 107 S.Ct. 2254, 2259-60, 96 L.Ed.2d 64 (1987). Courts must give great
deference to the decisions of prison officials concerning the management of
correctional facilities. Id. at 85-86, 107 S.Ct. at 2259-60. In Turner, the
Supreme Court established a rational relationship test for assessing the

constitutionality of prison regulations and practices. The Court held that "when
a prison regulation impinges on inmates' constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests." Id. at 89,
107 S.Ct. at 2261. In applying this test, courts should consider the following
factors: (1) whether there is a valid, rational connection between the prison
regulation or practice and a legitimate governmental interest; (2) whether the
regulation or practice allows inmates an alternative means of exercising the
subject constitutional right; (3) the impact of accommodation of the asserted
right on guards, other inmates, and the allocation of resources generally; and
(4) the absence of ready alternatives to the regulation or practice. Id. at 89-91,
107 S.Ct. at 2261-63.
10

The Court has also discussed the factors that must be considered in assessing
the reasonableness of prisoner searches:

11 test of reasonableness under the Fourth Amendment is not capable of precise

The
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
conducted.
12

Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447
(1979).

13

We have applied these principles to prisoner searches in a number of cases. See,

e.g., Dunn v. White, 880 F.2d 1188, 1190-97 (10th Cir.1989) (holding that
nonconsensual blood test does not violate the Fourth Amendment), cert. denied,
493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Levoy, 788 F.2d at
1439 (10th Cir.1986) ("Since the complaint alleges that Mr. Levoy was
subjected to a body cavity search without any justification whatsoever, it is
possible that Mr. Levoy can make a rational argument on the law and facts to
support his Fourth Amendment claim."); Cumbey, 684 F.2d at 714 (10th
Cir.1982) ("[T]he plaintiff's statement that the male inmates were subject to a
'certain amount of viewing' by female guards does not necessarily fall short of a
cognizable constitutional claim.").

14

In this case, the district court and the magistrate judge concluded that a "single
or minimal viewing" of a prisoner by prison officials of the opposite sex is
insufficient as a matter of law to constitute a Fourth Amendment violation. Rec.
doc. 20, at 4. That conclusion is not supported by our prior decisions. Although
we have stated that the frequency with which prison guards watch inmates of

the opposite sex undressing, using toilet facilities, and showering is an

important factor in assessing the constitutionality of prison practices, see
Cumbey, 684 F.2d at 714, we have also concluded that a prisoner's right to
privacy may be violated by a single search, see Levoy, 788 F.2d at 1439. Here,
Mr. Hayes has alleged in a sworn complaint that he was subjected to a body
cavity search in the presence of over 100 people, including female secretaries
and case managers from other buildings. Rec. doc. 3, at 3. We cannot conclude
as a matter of law that Mr. Hayes's Fourth Amendment rights were not violated,
simply from the fact that this search occurred only one time.
15

To be sure, the defendant prison officials provided an explanation of the

January 1991 search in the Martinez report. The report begins with an unsworn
statement by an administrative officer for the Arkansas Valley Correctional
Facility. She explains that the January 1991 search was conducted pursuant to a
Colorado Department of Corrections policy "to conduct complete, thorough
searches of all facilities on a regular, unscheduled basis." Rec. doc. 12, at 1.
The administrative officer further states that "[d]ue to the enormity of such a
search, regular facility staff could not handle this operation alone," id., and that
various Department of Corrections officials from outside the Arkansas Valley
Correctional Facility assisted in the search. As to the use of female staff, the
administrative officer explains:

16

There is no particular DOC policy relating to use of female staff during strip
searches. As a matter of courtesy to the inmate population, male staff members
are used whenever possible. There is no indication any female staff members
conducted a strip search during the dates in question. Although every effort was
made to reduce the number of female staff during the search, females are an
essential part of our staffing. All posts still had to be covered and females did
view parts of the search while conducting their normal duties or observation
duties so male staff could conduct the searches. There was no justifiable reason
to totally exclude female staff from this required function. Additionally, the
total absence of female staff would have alerted inmates to an impending
search.

17

Id. at 2.

18

For several reasons, we conclude that information provided by prison officials

in the Martinez report does not warrant the grant of summary judgment to the
defendants. First, the statements of the administrative officer are not sworn, and
the Martinez report does not include affidavits based on personal knowledge of
the January 1991 searches. See Nissho-Iwai Am. Corp. v. Kline, 845 F.2d
1300, 1306 (5th Cir.1988) (Unsworn affidavits do not raise factual issues

precluding summary judgment.); Pfeil v. Rogers, 757 F.2d 850, 859 (7th
Cir.1985) (Unsworn affidavits do not satisfy the evidentiary requirements of
Fed.R.Civ.P. 56(e).), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d
912 (1986). In contrast, Mr. Hayes's sworn complaint, which may be treated as
an affidavit, see Hall, 935 F.2d at 1111, alleges that the January 1991 search
was conducted by female staff members and various "nonessential personnel"
and was therefore unnecessarily intrusive. Rec. doc. 3, at 4. In light of the
allegations of Mr. Hayes's verified complaint, the unsworn statements in the
Martinez are insufficient to establish that the January 1991 search was
reasonable. See Fed.R.Civ.P. 56(e); Mosier, 937 F.2d at 1524-25.
19

Second, even if the administrative officer's statements had been sworn and
therefore constituted proper summary judgment evidence, her explanations of
the January 1991 search would still be insufficient to warrant summary
judgment for the defendant prison officials. Although the Fourth Amendment
does not require the complete exclusion of members of the opposite sex from
areas in which searches are conducted, see Canedy, 16 F.3d at 187;
Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988), and although
the security concerns articulated by prison officials are entitled to great
deference, see Turner, 482 U.S. at 85, 107 S.Ct. at 2259, the administrative
officer's statements in the Martinez report do not discuss several important
issues regarding the January 1991 search.

20

In particular, the administrative officer's statement that "every effort was made
to reduce the number of female staff during the search," see Rec. doc. 12, at 2,
does not explain which female staff members were allowed to view the search,
what their functions were, and why these functions were important to either the
search itself or to other prison functions. Additionally, the Martinez report
provides no explanation of the location in which the search occurred and the
reasons for conducting the search there.

21

Finally, the prison officials have chosen not to file a brief in this appeal. As a
result--other than the general statements in the Martinez report--the record
contains no discussion of the prison officials' position on these issues. Given
the limited information in the record, summary judgment for the defendantappellee prison officials is not warranted. Cf. Lucero v. Gunter, 17 F.3d 1347,
1350 (10th Cir.1994) (remanding prisoner's claim that urinalysis testing
violated the Fourth Amendment because the record was insufficient to
determine whether the testing was reasonable); Swift v. Lewis, 901 F.2d 730,
731-32 (9th Cir.1990) (concluding that summary judgment was not warranted
as to reasonableness of prison grooming code because prison officials had failed
to produce evidence supporting the asserted justifications for the code).4

III. CONCLUSION
22

Accordingly, we AFFIRM the district court's dismissal without prejudice of

Mr. Hayes's Eighth and Fourteenth Amendment claims. We REVERSE the
district court's dismissal with prejudice of Mr. Hayes's Fourth Amendment
claim and REMAND this claim to the district court for further proceedings
consistent with this opinion.5

23

AFFIRMED in part, REVERSED in part, and REMANDED.

The Arguello case was eventually settled. See Diaz v. Romer, 801 F.Supp. 405
(D.Colo.1992), aff'd, 9 F.3d 116 (10th Cir.1993)

The magistrate judge had concluded that "[a] single or minimal viewing [of a
search] by the opposite sex does not violate Plaintiff's right of privacy," Rec.
doc. 20, at 4, and that the videotaping of the search was reasonable. The
magistrate judge had also determined that Mr. Hayes's allegations regarding the
removal of the bathroom curtains were insufficient to state a Fourth
Amendment claim

In his appellate brief, Mr. Hayes does not challenge the district court's
conclusion that the removal of the bathroom curtains did not violate his right to
privacy under the Fourth Amendment. Accordingly, we do not examine that
issue here

Mr. Hayes also argues that the district court erred in failing to consider his
claims that the search violated the Eighth and Fourteenth Amendments. We
find no error in the district court's conclusion that these claims should have
been litigated in the class action suit regarding conditions of confinement
In addition, we note that our decision does not preclude the defendant prison
officials from filing a properly supported motion for summary judgment in the
district court proceedings regarding Mr. Hayes's Fourth Amendment claim.

Mr. Hayes has also challenged the district court's conclusion that the
videotaping of the January 1991 search and the alleged policy of allowing
unlimited, unmonitored viewing of the tapes did not violate his Fourth
Amendment rights
In the Martinez report, the administrative officer of the Arkansas Valley
Correctional Facility stated that the videotape of the search had been viewed

only by the warden and by the administrative staff during the investigation of
complaints. Rec. doc. 12, at 2. She also noted that "[r]eview of this tape does
not positively identify any inmate on tape as Willie Hayes, but gives an overall
picture of what occurred." Id.
We certainly agree with the prison officials that legitimate security interests, as
well as other interests, may support the videotaping of prisoner searches. See
Scott v. Gier, No. 93-35629, 1994 WL 283621 (9th Cir. June 24, 1994)
(affirming grant of summary judgment to prison officials who videotaped
search). However, because the administrative officer's statement does not
satisfy the requirements of Fed.R.Civ.P. 56(e) and because the Martinez report
does not contain sworn affidavits from prison officials with personal knowledge
of either the videotaping of the search or the policy of access to the resulting
videotape, further development of the record is necessary.