UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 98-60667 ____________________

JOHN M. JACKSON,

Plaintiff-Appellant,

versus

CALLIE DANTZLER, individually and in her official capacity; JOHN DONNELLY, individually and in his official capacity,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (3:97-CV-866-WS) _________________________________________________________________

September 13, 1999

Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

For the dismissal of John Jackson’s in forma pauperis (IFP)

and pro se § 1983 action against prison officials, primarily at

issue is whether he stated a claim for relief under the Fourth

Amendment by alleging that he was strip searched by a female guard.

We AFFIRM in part, REVERSE in part, and REMAND.

I.

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

- 1 - Jackson, a Mississippi prisoner, claims in his pro se

complaint that, in July 1997, Sergeant Dantzler (a female)

subjected him to a strip search (having the inmate remove his

clothing and performing a nonintrusive body-cavity search). After

exhausting his administrative remedies, Jackson and two other

inmates filed an action against Sergeant Dantzler and

Superintendent Donnelly. The district court required separate

complaints. Jackson refiled his IFP complaint, claiming that,

contrary to the Fourth, Fifth, and Fourteenth Amendments, his

rights to privacy and to be free of sexual harassment were violated

by the strip search and by Sergeant Dantzler and other female

guards watching him and other inmates use the restroom and shower.

Following a hearing pursuant to Spears v. McCotter,

(5th Cir. 1985), and relying on Letcher v. Turner,

(5th Cir. 1992), the magistrate judge recommended that the

complaint be dismissed for failure to state a claim under

, on the bases that female officers may conduct such searches

and monitoring, because they serve a legitimate security purpose.

Jackson objected to the report. The district court overruled the

objections, adopted the report and recommendation, and dismissed

the complaint.

- 2 - II.

As amended by the Prison Litigation Reform Act (PLRA),

requires dismissal of a prisoner’s IFP civil rights

complaint if the action fails to state a claim upon which relief

may be granted. Black v. Warren,

(5th Cir.

1998); see also

(e)(2)(B)(ii). A §

1915(e)(2)(B)(ii) dismissal is reviewed de novo, applying the

standard used for FED. R. CIV. P. 12(b)(6). Black,

;

see also Harper v. Showers,

, 718 n.3 (5th Cir. 1999).

“To test whether the district court’s dismissal under § 1915

was proper, this Court must assume that all of the plaintiff’s

factual allegations are true.” Bradley v. Puckett,

(5th Cir. 1998). “The district court’s dismissal may be

upheld only if it appears that no relief could be granted under any

set of facts that could be proven consistent with the allegations.”

(internal quotation omitted).

As noted, the district court relied upon Letcher, in which our

court affirmed a summary judgment against the claim that female

guards’ presence during a strip search invaded an inmate’s

constitutional right to privacy.

. The search

occurred while the inmate was on cell restriction, after being

involved “in an organized food throwing incident, in which [18 or

19] inmates threw their food trays, banged on their cell bars, and

- 3 - cursed the guards”.

, 510 n.1. The search had been

“conducted in a situation where a maximum show of force was

required because of the earlier unruly behavior of the inmates”.

.

A.

In affirming, Letcher relied on Barnett v. Collins,

(5th Cir. July 31, 1991)(Table, No. 91-1038)(unpublished),

which “held that no constitutional violation occurs when naked male

inmates are viewed by female guards if the presence of the female

guards is required to protect a legitimate government interest such

as maintaining security at a correctional facility”. Letcher,

. Barnett involved the “use of female guards in guard

towers giving a full view of male inmates taking showers”.

Accordingly, Jackson’s claim concerning female guards viewing

him in the restroom and shower is without merit and was properly

dismissed.

B.

Citing Letcher, the magistrate judge also recommended (adopted

by the district court) that “female prison officers ... may perform

searches on male inmates”. But, Letcher addressed only whether a

female officer may be present during, not whether she may conduct,

a strip search.

- 4 - Subsequent to the dismissal of Jackson’s complaint, our court

addressed this search issue in Moore v. Carwell,

(5th Cir. 1999); a male inmate claimed that his Fourth Amendment

rights were violated. The district court dismissed the action as

frivolous, holding, inter alia, that “the searches served the

compelling state interest of ensuring security within the state

prison and were the least restrictive means of furthering that

interest”.

In reversing, our court distinguished Letcher, which, as

noted, addressed only female officers’ presence during a strip

search.

. Our court recognized that prisoners forfeit

certain rights due to legitimate penological needs, but held that

all prisoner searches must be reasonable under the circumstances

and that “[w]e must balance the need for the particular search

against the invasion of the prisoner’s personal rights caused by

the search”.

.1 Our court concluded that, accepting

1 See also Elliott v. Lynn,

(5th Cir. 1994) (great deference is given to prison security policies and “[u]nder appropriate circumstances, visual body cavity searches of prisoners can be constitutionally reasonable”); Canedy v. Boardman,

(7th Cir. 1994) (“while the Supreme Court has permitted prison officials to conduct body cavity searches of prisoners after every visit with a person from outside the prison, it has emphasized that the ‘searches must be conducted in a reasonable manner’”) (quoting Bell v. Wolfish,

(1979)). But see Somers v. Thurman,

(9th Cir.), cert. denied,

(1997) (granting qualified immunity to prison guards because right of inmates to be free from strip searches by guards of opposite sex not clearly established).

- 5 - the inmate’s allegations and reasonable inferences therefrom

(search was performed in absence of “emergency or extraordinary

purposes” and male guards available to conduct the search), this

“could entitle him to relief for a Fourth Amendment violation”.

Id. at 237 (emphasis added).

Jackson’s Spears hearing is not included in the record on

appeal. Therefore, we cannot determine whether the allegations in

his complaint, clarified by the hearing, reach whether, for

example, there was an emergency situation or whether male guards

were available to conduct the search.

However, in the light of Moore, we conclude that Jackson’s

allegations state a claim which could entitle him to relief under

§ 1983; therefore, the district court erred in dismissing his

Fourth Amendment strip search claim. See also Hayes v. Marriott,

(10th Cir. 1995) (male inmate stated cognizable

claim where complaint alleged strip search in front of 100 people,

including women, because “a prisoner’s right to privacy may be

violated by a single search”).

III.

In the light of the foregoing, the dismissal of all of

Jackson’s claims, except his Fourth Amendment strip search claim,

is AFFIRMED; the dismissal of that Fourth Amendment claim is

REVERSED; and the case is REMANDED to the district court for

- 6 - further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED

- 7 -