Here is a comprehensive ruling on the rights of a female inmate in state prison who says she was physically abused by correction officers. The Court of Appeals says she may have enough evidence for trial.
The case is Harris v. Fisher, decided on March 15. Harris took the cotton from her mattress and pasted it to the windows in her cell so that no one could see inside. This was against the rules, so the officers entered her cell to remove the cotton. When plaintiff said there was no cotton left, she said they threw her to the ground, lifted her clothing "and forcibly opened her legs to allow the male officer to visually inspect her genitals for any additional cotton." On the summary judgment motion, the officers did not deny doing this.
Harris has a Fourth Amendment limited right to bodily privacy. She wins the case if she has a legitimate expectation of bodily privacy and the prison does not have sufficient justification to intrude on those rights. The analysis here is quite complex. Harris prevails on the summary judgment motion because the search was too intrusive in that (1) it was a visual bodily cavity search (2) conducted by male and not female officers and (3) it is unclear why the search was conducted in such a violent and forceful manner. Also, the Court says, it is hard to see the justification for the search. The officers don't really provide a reason supported by the record. Hypothetical reasons don't count. What is more, nothing suggests that possessing cotton (even in your genitalia) violates prison rules.
Harris also sues under the Eighth Amendment, which prohibits cruel and unusual punishment. On her testimony, she may satisfy the subjective element of this case (that the officers intended to violate her rights) because the officers deny that the search even took place. On the objective element (that the violation was harmful or serious enough to reach constitutional dimensions, plaintiff can win even if there was no actual contact with her genitalia. The visual inspection may be enough to win the case. This was also not a de minimus violation; she was thrown to the ground and they forcibly opened her legs, and she may have suffered a physical injury.
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Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.