23. Acting Commissioner Stewart Werner, Superintendent Walters, and Deputy Superintendent Jennings were at the Central Office in Camp Hill on June 27, 1973, and were not informed of the strip-search until after it had occurred.
24. The defendant guards, as well as the plaintiff, had been supplied with copies of the Handbook upon entering employment with the Bureau of Corrections and each agreed to abide by the rules and regulations contained therein.
25. There is no competent evidence that prior to June 15, 1973, the searches to which the plaintiff was subjected were more frequent, broader in scope, or other than the usual searches of Penitentiary employees. While there was long-standing suspicion and distrust of the plaintiff by the defendant guards at the Penitentiary, which was reciprocated by the plaintiff, this did not manifest itself in any abuse or misuse of authority directed against the plaintiff by any of the defendants.
26. The search procedure on June 27, 1973, to which plaintiff was subjected, had its origin and motivation in the instructions received at the June 18, 1973 meeting to increase security and to keep plaintiff under surveillance. This search was not willful, wanton and malicious on the part of the guards. Plaintiff's recent admission of giving contraband, i.e. garlic, to an inmate and his attitude in refusing to be searched were factors causing the guards to become suspicious, and determine that a strip-search was indicated and necessary. These were objective facts that would reasonably cause experienced prison guards to suspect that plaintiff was probably concealing something in his clothes, wallet or on his body for the purpose of transporting it out of the prison, contrary to established regulations. The guards confiscated documents in plaintiff's wallet because of a reasonable good faith belief that they were obliged to do so by Rule 9.
27. The strip-search was an isolated incident and was not ordered nor subsequently ratified or acquiesced in by the Acting Commissioner, the Superintendent, or the Deputy Superintendent. In such circumstances these defendants would not be liable even if the guards were. Johnson v. Glick, 481 F.2d 1028, 1033-1034 (2nd Cir. 1973); Cf. Johnson v. Alldredge, 488 F.2d 820 (3rd Cir. 1973).
A Penitentiary is a unique institution fraught with sensitive security hazards, not the least of these being smuggling of contraband such as drugs, money, knives, etc.
The state has a high security interest in eliminating smuggling into and out of penitentiaries. In this respect, prison guards must have discretion to act quickly and decisively, and other reasonable procedures in everyday disciplinary problems should not be employed to handcuff prison guards in following the orders and directives designed to eliminate smuggling.
Constitutional Rights of an employee in a penitentiary may be diluted by the specialized requirements of discipline, safety and security, and a federal court "[should] be reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to state officials." Cf. Gray v. Creamer, 465 F.2d 179, 183-184 (3rd Cir. 1972); Gittlemacker v. Prasse, 428 F.2d 1, 4 (3rd Cir. 1970); Negrich v. Hohn, 379 F.2d 213, 215 (3rd Cir. 1967). A prison employee, upon entering the prison gate, leaves his Fourth Amendment rights on the outside to the extent that a search warrant, or probable cause, is required to validate a search for contraband. Lanza v. New York, 370 U.S. 139, 143, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (1962); Stroud v. United States, 251 U.S. 15, 21, 40 S. Ct. 50, 64 L. Ed. 103 (1919); Daughtery v. Harris, 476 F.2d 292 (10th Cir. 1973). Of course, a prison employee retains a right to be free from oppressive or unreasonable searches which shock the conscience of the court, but in the totality of the circumstances involved in the case sub judice, the search of the plaintiff does not appear to be shocking or unreasonable. Cf. Blackford v. United States, 247 F.2d 745 (9th Cir. 1957); Daughtery v. Harris, supra.
Plaintiff's recent transfer of contraband to an inmate whose name he denied knowing and his unprecedented demands and refusal to submit to a search constituted a justifiable basis for the defendant guards to suspect and believe that plaintiff was hiding contraband on his person and that a strip-search was appropriate. Such a decision was within their discretion.
The inherent characteristics of a prison society, including guards, teachers, visitors and officials, are such that guards must make prompt decisions as search problems confront them. The governmental interest in preventing and detecting smuggling outweighs the individual interest in perfect justice. Alleged intentional, willful and harassing action
pursued by the prison guards is an inevitable incident of effective management and control of contraband smuggling. Since the defendant guards followed their orders (DX J) and acted in good faith with reasonable suspicion and belief in ordering a strip-search of plaintiff on June 27, 1973, they are not liable in damages. Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Hill v. Rowland, 474 F.2d 1374, 1377-1379 (4th Cir. 1973); Rodriguez v. Jones, 473 F.2d 599 (5th Cir. 1973); Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1347 (2nd Cir. 1972).
It would be unjust in the absence of bad faith to subject the prison guards to monetary liability, when required by the obligation of their positions to exercise discretion. Prison guards who fail to make decisions when they are needed or do not act to implement decisions when they are made do not fully and faithfully perform the duties of their office. In suspicious circumstances, as here, prison guards should not have to fear being mulcted in damages if they order a strip-search, more than being charged with dereliction of duty if they do not. Cf. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90, 42 L.W. 4543 (1974).
Even if Rule 9 (quoted supra), as interpreted by the defendant guards, would be held to be unconstitutional in a prison setting, which we doubt, in seizing the censorious handwritten draft of a letter to the Attorney General (PX 4) and the sarcastic motion (PX 5) and delivering them to Deputy Superintendent Zimmerman, the guards acted in a good faith reasonable belief that these communications were proscribed by Rule 9 and it was their duty to seize them and transfer them to the Superintendent. Pierson v. Ray, supra ; Hill v. Rowland, supra ; Rodriguez v. Jones, supra.
The abbreviated possession of the documents seized, coupled with their prompt return by the Superintendent, is persuasive that plaintiff did not sustain any grievous loss. It is to be observed that plaintiff sent a typed copy of the seized draft letter not only to the Attorney General under date of June 28, 1973, but also sent a copy to some of the defendants who he claims violated his First Amendment right of privacy by participating in its seizure. In these circumstances, even if we should hold that the guards acted unlawfully in seizing the "questionable material" in plaintiff's wallet, the plaintiff would be entitled only to nominal damages. Magnett v. Pelletier, 488 F.2d 33 (1st Cir. 1973).
CONCLUSIONS OF LAW
1. The court has jurisdiction pursuant to Title 42 U.S.C. §§ 1983, 1985, and its jurisdictional counterpart, 28 U.S.C. § 1343(3) and (4).
2. The plaintiff failed to prove by a fair preponderance of the evidence that the defendants, Acting Commissioner Werner, Superintendent Walters, and Deputy Superintendent Jennings, violated his civil rights under the First and Fourth Amendents.
3. The defendant prison guards, Lieutenant Kozakiewcz, Captain Krall, and Major Jasak, having acted upon reasonable suspicion and probable cause in ordering the plaintiff inside the Penitentiary to remove his clothes and searching them, his wallet, and his books and papers, did not violate plaintiff's civil rights under the Fourth Amendment.
4. The defendant prison guards, aforesaid, having acted in good faith in the enforcement of Rule 9 of the Handbook, which plaintiff agreed to abide by, did not violate plaintiff's civil rights under the First Amendment.
5. Judgment should be entered in favor of the defendants, Acting Commissioner Stewart Werner, Superintendent Gilbert Walters, Deputy Superintendent William Jennings, Major John Jasak, Captain Edward Krall, and Lieutenant Charles Kozakiewcz.