Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Guards Liable for Harassing Searches of Cell

Guards Liable For Harassing Searches Of Cell

Although searches of a prisoners' cell do not violate the fourth amendment, they can be "punishment" under the eighth amendment. Searches of a prisoner's cell conducted in order to harass the prisoner in retaliation for exposing the misconduct of a guard constitute "punishment" under the eighth amendment and are therefore actionable under 42 U.S.C. 1983, the U.S. Court of Appeals for the Eighth Circuit held. Contrary to an argument advanced by the guard, physical pain is not an essential component of punishment, the court said. It pointed out that the U.S. Supreme Court recognized the viability of suits such as this one in the very case, Hudson v. Palmer, 468 U.S. 517 (1982), that established the inapplicability of the fourth amendment to searches of prison cells.

In this case the prisoner, Scher, informed on a guard who had asked where he might go on the streets to be able to obtain some illegal guns. Scher gave the cop the information he needed, in written form, then turned him in to the administration. The guard was busted leaving the prison with the directions.

The offending guard ultimately quit, but a fellow cop repeatedly searched Scher's cell; 10 times in 19 days. On three occasions the cell was left is disarray. Scher brought a pro se complaint alleging, inter alia, that the guard violated his eighth amendment right to be free from cruel and unusual punishment. The case went to the jury on that claim, and the jury found in Scher's favor and awarded him $1,000 in punitive damages.

The guard appealed, arguing that pain is a necessary element of an eight amendment claim and a cell search that involved no injury or abuse (pain) cannot constitute cruel and unusual punishment. The appeals court disagreed, holding that "pain" may be either mental and/or physical, and that in this case there was sufficient evidence of anguish and misery to invoke constitutional protection. See, Scher v. Engelke,_____F.2d_____(8 Cir. 9/11/91), 49 Cr.L 1541.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Scher v. Engelke

[31] On appeal, Engelke's primary argument is that pain is a necessary element of an eighth amendment claim and a cell search that involved no abuse, injury, or pain cannot constitute cruel and unusual punishment. We cannot agree with Engelke's narrow interpretation of eighth amendment protection. In Rodgers v. Thomas,879 F.2d 380, 384 (8th Cir. 1989), this court stated that "in order to establish an eighth amendment violation after incarceration, a prisoner must establish the unnecessary and wanton infliction of pain, mental or physical." In Cowans v. Wyrick,862 F.2d 697, 700 (8th Cir. 1988), this court stated that "the jury must have found that plaintiff suffered anguish, misery or pain in order to establish that cruel and unusual punishment was inflicted." In Martin v. White,742 F.2d 469, 474 (8th Cir. 1984), this court recognized that violent attacks or the constant fear of such violence could constitute a violation of the eighth amendment. Additionally, Whitley, supra, teaches that the general requirement that the plaintiff allege and prove "the unnecessary and wanton infliction of pain should also be applied with due regard for the differences in the kind of conduct against which an Eighth Amendment objection is lodged."475 U.S. at 320. Thus, the scope of eighth amendment protection is broader than the mere infliction of physical pain as Engelke urges, and evidence of fear, mental anguish, and misery inflicted through frequent retaliatory cell searches, some of which resulted in the violent dishevelment of Scher's cell, could suffice as the requisite injury for an eighth amendment claim.

[32] The evidence in this case showed that Scher was the victim of Smith's coercive efforts to obtain illicit weapons. Scher acted responsibly in reporting this to prison officials. Smith eventually resigned rather than be removed from his position. Shortly thereafter, Scher, an honor inmate, was subjected to numerous cell searches and an undeserved conduct violation from Engelke. Engelke testified that he had no reason to believe that Scher had contraband in his cell when he conducted the cell searches. Considering these facts in the light most favorable to Scher and giving him the benefit of reasonable inferences, the evidence clearly does not all point to Engelke's position. Instead, it evidences a pattern of calculated harassment unrelated to prison needs from which the U.S. Supreme Court has stated that prisoners are protected. Hudson, supra. Thus, the district court correctly denied Engelke's JNOV motion.

[33] Engelke also argues that previously no other court has found cell searches to violate the eighth amendment. However, the cases on which he relies are easily distinguishable from the present case. None involved the retaliatory aspect so prominent in this case. In Hudson, supra, the inmate only alleged one shakedown search. The evidence in the present case discloses ten searches in nineteen days under circumstances which a jury would be justified in finding were motivated by retaliation for Scher's efforts to blow the whistle on a corrupt guard.

[34] In Vigliotto v. Terry, 873 F.2d 1201 (9th Cir. 1989), an inmate brought a § 1983 action alleging that prison officials had violated his eighth amendment rights by conducting several harassing searches, one of which involved the confiscation of legal materials. The district court granted summary judgment to the prison officials. The Ninth Circuit cited Hudson, supra, for the proposition that "the Eighth Amendment protects prisoners from searches conducted only for 'calculated harassment.'" Id. at 1203. However, the Ninth Circuit affirmed the district court noting that only one search could be substantiated and that a "single incident is insufficient to satisfy Whitley." Id. Again, the substantiated conduct in this case is much more egregious than that in Vigliotto.

[35] In Balabin v. Scully, 606 F. Supp. 176 (S.D. N.Y. 1985), an inmate asserted that cell searches violated the eighth amendment. While the court acknowledged Hudson, supra, it dismissed the inmate's claims because he had made no allegations of harassment nor alleged facts establishing an invasion of privacy that rose to the level of cruel and unusual punishment. Id. at 184. In contrast, Scher made strong allegations that he was harassed through the searches and an undeserved conduct violation concerning his roommate's television. Thus, Balabin has no application to this case. In sum, these cases do not involve the obdurate and wanton harassment and retaliation evident in the present case.

[36] B. Qualified immunity

[37] Engelke next argues that he is entitled to qualified immunity. He cites Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), for the proposition that an official is immune from liability for civil damages when his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. He asserts that the passage from Hudson, supra, is merely dicta and therefore does not clearly establish a constitutional right. We cannot agree.

[38] Contrary to Engelke's assertions, we are not dealing with an esoteric matter of unsettled law of which a guard could not reasonably be expected to know. This is a clear case of a prisoner who was subjected to retaliatory cell searches and conduct violations for bringing the illicit conduct of a prison guard to the attention of prison officials. The law making retaliation for the exercise of a constitutional right actionable under § 1983 has been established for some time and an objectively reasonable official could not fail to know of it. Freeman v. Blair,862 F.2d 1330, 1332 (8th Cir. 1988) (citing Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir. 1978), cert. denied, 440 U.S. 916, 59 L. Ed. 2d 466, 99 S. Ct. 1234 (1979)). Furthermore, the fact that previously no court has held that cell searches constitute an eighth amendment violation is irrelevant. The U.S. Supreme Court has stated that the action in question need not have been previously held unlawful, "but in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton,483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Coffman v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989), cert. denied, 494 U.S. 1056, 110 S. Ct. 1523, 108 L. Ed. 2d 763 (1990). Certainly the unlawfulness of Engelke's retaliatory conduct must have been apparent to him. The basic course of decent human conduct precludes the infliction of such trauma on one in custody.


[40] Thus we would in any event be strongly inclined to find the evidence of Engelke's conduct sufficiently egregious to support the jury's verdict, and to hold as a matter of law that he had not established an immunity defense. These conclusions are strongly bolstered by the clarity of the evidence establishing Engelke's retaliatory motivation. Accordingly, we affirm the district court's denial of Engelke's JNOV motion.

Judges Footnotes

[41] *fn* The Honorable John W. Peck, Senior United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation.

Opinion Footnotes

[42] *fn1 The Honorable Stephen N. Limbaugh, District Judge, United States District Court for the Eastern District of Missouri.