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Friday, February 1, 2013


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Ninth Circuit Tosses Suit Over Intrusive Search of Prisoner

Six-Day ‘Contraband Watch’ in 2002 Did Not Violate Clearly Established Rights, Divided Panel Says




Prison officials who subjected a prisoner to a six-day “contraband watch,” in which he was under round-the-clock observation in a lighted cell while wearing restraints and required to sleep on a bed without a mattress are immune from suit, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel concluded that when Rex Chappell was subjected to those conditions more than 10 years ago, there was no clearly established right to less onerous treatment of a prisoner suspected of having concealed drugs internally.

Authorities said they suspected Chappell of having received drugs from his fiancée, Philissa Richard, following an April 2002 visit at California State Prison, Sacramento. Officers discovered a hairpiece, which Richard was wearing when she entered the prison, in a trash can near the visiting room; the hairpiece tested positive for cocaine residue.

Methamphetamine in Cell

A background check showed that Richard had a long history of drug and other offenses. A search of Chappell’s cell revealed three unlabeled bottles of what appeared to be eyedrops, and the liquid tested positive for methamphetamine.

Pursuant to prison regulations, an official—exactly who was disputed at trial—ordered Chappell placed on contraband watch, a type of body cavity search.

An inmate on contraband watch is dressed in two pairs of underwear and two jumpsuits, one of which is put on backwards, so that he cannot excrete contraband and remove it from his clothing. He is also restrained so that he cannot dispose of contraband manually, and placed in a surveillance cell.

The prisoner is given a blanket—the cell is devoid of any furniture other than the mattress-less bed—and must call for a plastic, moveable toilet chair when necessary.

After six days of this treatment, which did not reveal any contraband, Chappell was removed from contraband watch.

He sued for violation of his Eighth Amendment rights, alleging that he was subjected to cruel and unusual punishment. He said he was forced to “ a dog” because of the restraints, that the cell was hot and unventilated, and that the lights were “very bright.”

He claimed the treatment constituted mental torture.

Partial Summary Judgment

U.S. District Judge Garland Burrell Jr. of the Eastern District of California granted summary judgment in part. But he ruled that Chappell had established triable issues of fact with respect to his claims that two of the defendants—the captain in charge of the investigation and the acting warden—had violated his Eighth Amendment rights and had denied him due process by not giving him notice and an opportunity to be heard before placing him on contraband watch.

Judge Jay Bybee, in his opinion for the Ninth Circuit, said the defendants were entitled to qualified immunity as to the Eighth Amendment claim because they did not have “fair notice” that the procedures used were unconstitutional.

As of the time of the search, Bybee said, there had been only one Ninth Circuit case treating sleep deprivation was cruel and unusual punishment, and that involved conduct over a six-month period. Cases in other jurisdictions, he noted, also involved periods of time much longer than six or seven days, and have specifically upheld the use of continual lighting when it was not done with the intent of keeping the prisoner awake or for other “vindictive” purposes.

Nor, Bybee said, was there a clearly established constitutional right to sleep on a mattress, nor would a reasonable officer have had notice that the combination of conditions to which Chappell was subjected constituted a constitutional violation.

Due Process Claim

As for the due process claim, Bybee said that a prisoner, once sentenced, has no federally protected liberty interest in protection from normal conditions of confinement “ordinarily contemplated by the sentence imposed,” including contraband watch. He also concluded that if there was a state-created liberty interest violated, the law was not clearly established because Chappell was not subjected to an “atypical and significant hardship.”

Senior District Judge James L. Graham of the Southern District of Ohio, sitting by designation, concurred separately, saying that the contraband watch did not violate the Due Process Clause even if the inmate did suffer an “atypical and significant hardship.”

Graham wrote:

“I fail to understand how it could be said that a state has ‘created’ a liberty interest by imposing harsher conditions of confinement.”

Judge Marsha Berzon concurred with Bybee’s views of the due process issues, but argued in dissent that the captain and acting warden were not entitled to summary judgment on the Eighth Amendment claim. She argued that the defendants should have known, under the state of the law at the time, that the totality of the conditions “risked depriving Chappell of sleep, in violation of the Eighth Amendment.”

The plaintiff, she wrote, should have been allowed to prove that the defendants “demonstrated deliberate indifference to the risk of physical or psychological harm created by the conditions of confinement on contraband watch.”

The plaintiff was represented on appeal by Caleb E. Mason of Southwestern Law School, the state by Deputy Attorney General Megan O’Carroll.

The case is Chappell v. Mandeville, 09-16251.


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