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WA Digital Probe Suits Barred

In 1984 the Washington state DOC opened two control units and initiated a policy whereby all prisoners transferred to the Intensive Management Units (IMU) were subjected to a digital rectal probe, or digital rape, upon entry. The "searches" were conducted on a blanket basis with no individual suspicion being required. Thousands of such "searches" were conducted and no contraband was recovered. After extensive litigation the practice was found unconstitutional, see: Wetmore v. Gardner, 735 F. Supp 974 (ED WA 1990), but on appeal the defendants were awarded qualified immunity from personal liability and thus no damages were awarded, see: Hemphill v. Kincheloe, 987 F.2d 589 (9th Cir. 1993). The ruling in Hemphill affected the damage claims of more than 100 Washington prisoners who had been subjected to the "searches" and who filed suit seeking money damages. Their claims were all consolidated into Hemphill for the purposes of addressing the qualified immunity question.

David Castillo, a Washington state prisoner, filed suit seeking only money damages for a digital rectal search conducted pursuant to the unconstitutional blanket search policy. The district court granted summary judgment to defendants Larry Kincheloe, the former prison warden, and Booth Gardner, the former governor, on collateral estoppel grounds. The court held that the ruling in Hemphill applies to all suits seeking damages for "searches" conducted under the since defunct and unconstitutional search policy. (This ruling does not apply to any cavity searches conducted since then.) Thus, even though Castillo was not a plaintiff in Hemphill because the issue of qualified immunity had already been decided in favor of the defendants he could not overcome that ruling. It is interesting to note that the Washington attorney general's office is still arguing that the blanket search policy is constitutional, despite a jury finding to the contrary and that finding being upheld by the ninth circuit. See: Castillo v. Gardner, 854 F. Supp 725 (ED WA 1994).

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Related legal case

Castillo v. Gardner

DAVID CASTILLO, Plaintiff, v. BOOTH GARDNER, et al., Defendants.

NO. CV-89-485-JLQ


854 F. Supp. 725; 1994 U.S. Dist. LEXIS 7795

May 31, 1994, Decided

COUNSEL: [**1] For Plaintiff: NANCY EMMET HORGAN, Vashon, WA. DAVID CASTILLO (pro se), Wash. State Reformatory, Monroe, WA.






BEFORE THE COURT is Defendants' Motion for Summary Judgment (Ct. Rec. 22), heard without oral argument on May 23, 1994. Plaintiff did not appear; Defendants were represented by Martin E. Wyckoff. Having reviewed the record, and being fully advised in this matter, the court hereby grants Defendants' motion.

Defendants, Former Governor Booth Gardner and WSP Superintendent Lawrence Kincheloe, have moved for summary judgment against inmate David Castillo believing that they are entitled to qualified immunity from damages resulting from the policy permitting digital rectal probe searches on inmates. This is a damage-only issue and does not seek injunctive relief. This court has previously enjoined digital rectal probes without cause predicate. Inmate Castillo has filed no response despite an Order Advising Plaintiff Regarding Summary Judgment (Ct. Rec. 27).

Defendants make two arguments: First, they contend [**2] that the policy of performing digital rectal searches on incarcerated felons transferred to the most secure segment of a correctional facility is constitutional. This court and the Ninth Circuit disagree with this contention, absent cause predicate. However, "in the present case, the regulation at issue is a blanket requirement that all prisoners transferred to IMU be rectally probed, without any cause predicate." Wetmore v. Gardner, 735 F. Supp. 974, 978 (E.D. Wash. 1990), rev'd, Hemphill v. Kincheloe, 987 F.2d 589 (9th Cir. 1993). The Ninth Circuit stated that were it faced with the constitutionality of this precise type of search, it would find the search unconstitutional absent a legitimate penological need. Tribble v. Gardner, 860 F.2d 321, 324-25 (9th Cir. 1988). In Wetmore, a jury found that this policy lacked a legitimate penological purpose. Wetmore, 735 F. Supp. at 981. "In seven cases tried after Wetmore, [this] court applied the doctrine of offensive collateral estoppel to deny the officials the opportunity to relitigate the constitutional [**3] claims . . . ." Hemphill, 987 F.2d at 591. The policy of conducting digital rectal probes without cause predicate is not reasonably related to a legitimate penological goal and is therefore unconstitutional. See Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). Summary judgment for Defendants on this ground would be improper.

Defendants' second argument for summary judgment is that they are entitled to qualified immunity from suit. "Prison officials who have implemented a digital rectal probe policy are entitled to qualified immunity if, in light of the clearly established law at the time, a reasonable official could have believed that his conduct was lawful." Hemphill, 987 F.2d at 591. In Hemphill, these exact Defendants were on trial for the exact policy at issue in the present case. Hemphill consolidated eight of the more than 100 cases filed by Washington State Penitentiary prisoners who were subjected to the digital rectal probe. Id. In this consolidated appeal, the Ninth Circuit held that Booth Gardner and Lawrence Kincheloe, [**4] among other officials, were entitled to qualified immunity on the damage claim as a matter of law, even though the Tribble court had ruled to the contrary. See Id. at 594.

Although collateral estoppel or issue preclusion does not technically apply to the matter of qualified immunity at hand, the court finds that the holding of Hemphill directs this court's finding in the present case. The doctrine of issue preclusion prevents relitigation of issues actually litigated and necessarily decided in a prior proceeding. Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988). However, "in both the offensive and defensive use situations the party against whom estoppel is asserted has litigated and lost in an earlier action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). In [*727] other words, collateral estoppel precludes relitigation of the same issue between the same parties in different cases. In re Giangrasso, 145 Bankr. 319, 322 (Bankr. 9th Cir. 1992).

Here, the same issue is involved [**5] with the same defendants; but the plaintiffs are different. Booth Gardner and Lawrence Kincheloe cannot invoke defensive collateral estoppel -- estopping a plaintiff from asserting a claim that the plaintiff had previously litigated and lost against another defendant -- because David Castillo never litigated his claim in a prior action. The Hemphill consolidated appeal did not include David Castillo and so collateral estoppel is technically inapplicable.

Nonetheless, collateral estoppel is instructive in that the claim of David Castillo for damages is the same as the damage claims of the other approximately 100 inmates subjected to the digital rectal probe. They all complain that the probe violated their constitutional rights. Despite these claims, the Ninth Circuit expressly held that Booth Gardner and Lawrence Kincheloe are entitled to qualified immunity, as a matter of law, from damages based on this digital rectal probe policy. Accordingly, in the present matter based on the identical policy, there being no genuine issue of material fact remaining, the court agrees that the Defendants are entitled to qualified immunity as a matter of law against the Plaintiff's claim for damages. [**6]


1. Defendants' Motion for Summary Judgment (Ct. Rec. 22) is GRANTED. Accordingly, this matter is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED. The Clerk is hereby directed to enter this Order; furnish copies to counsel and Plaintiff; and close the file.

DATED this 31st day of May 1994.


Chief United States District Judge