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California DOC Stipulates to Removal of Visitor X-Ray Ma-chines, but Damages Appeal Dismissed

by John E. Dannenberg

On November 20, 2007, the California Court of Appeal dismissed an appeal filed by a group of Lancaster State Prison visitors who sought damages for being subjected to Secure 1000 X-ray machines whenever they visited prisoners at the facility. The Secure 1000 is a low-level “backscatter” device that uses X-rays to penetrate a few centimeters into the skin, producing a computer image of the body that includes breasts, genitalia and folds of skin.

Whenever the machine displayed suspicious shadows, such as feminine hygiene products, breast implants, brassieres or diapers, visitors were subjected to a full strip search. A visitor who refused such searches was denied access to the facility and put on a list to be searched upon future visits.

Gail Wisely and a group of other prisoners’ wives (plaintiffs) filed suit against the state, the Department of Corrections and Rehabilitation (CDCR) and prison officials both for injunctive relief (i.e., removal of the X-ray machines), as well as damages under state law (California Civil Code 52, et seq.) and federal law (42 U.S.C. § 1983).

The defendants eventually entered into a stipulated agreement to remove the machines and to obtain approval before ordering any equipment using the same type of technology within the next 7 years. After the stipulation, which followed the trial court’s dismissal of the damage claims based on a qualified immunity defense, the plaintiffs appealed.

The appellate court first considered its jurisdiction, as it must. The question was whether the judgment was eligible to be appealed. When a stipulated judgment fails to dispose of all claims between the parties, the case does not qualify for appeal. The Court of Appeal examined the language of the judgment and found it had stipulated an order denying dam-ages but failed to include language that provided for entry of judgment as to injunctive relief. The Court thus held that “in light of this conspicuous omission, although labeled ‘final,’ the judgment is in effect a nonappealable interlocutory deci-sion.”

Unresolved issues noted by the appellate court included “if, or under what standards or protocols, the [CDCR] may again use backscatter or similar technology on visitors.” This important issue was a “significant and complex one” which would in-volve evaluation of other prison surveillance devices, “necessitating the exercise of substantial discretion.” Accordingly, the Court of Appeal held the trial court’s order “does not finally dispose of the injunctive relief claims and is not now an appeal-able final judgment.” The appeal was therefore dismissed; a petition for review was denied on February 20, 2008.

The plaintiffs were represented by the Los Angeles firm of Litt, Estuar, Harrison & Kitson, LLP. See: Harrington-Wisely v. State of California, 156 Cal.App.4th 1488, 68 Cal.Rptr.3d 209 (Cal.App. 2 Dist. 2007), petitions for rehearing and review denied.

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Related legal case

Harrington-Wisely v. State of California