                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 5 1999
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    WILLIE T. HAYES,

               Plaintiff-Appellant,

    v.                                                 No. 99-1051
                                                   (D.C. No. 91-Z-1344)
    MAJOR MARRIOTT; MAJOR                                (D. Colo.)
    SOARES; RICHARD MARR,
    Assistant Superintendent and the
    members of the Special Operations
    Response Team of January 24, 1991;
    WILLIAM E. PRICE, Superintendent;
    MICHAEL LURANT; SEARGENT
    GLADYS SHOCKLEY; OFFICER
    TED ADAMIC, PERRY ROEKER;
    and GERALD GASKO, and the
    members of the Special Operations
    Response Team of January 24, 1991,

               Defendants-Appellees.




                           ORDER AND JUDGMENT           *




Before BALDOCK , BARRETT , and McKAY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Willie T. Hayes, a state prisoner appearing pro se, appeals the

district court’s dismissal of his civil rights case with prejudice as to some of the

defendants and without prejudice as to others.   1



      Plaintiff was incarcerated at the Arkansas Valley Correctional Facility

(AVCF) in Colorado at the time the events giving rise to this action arose. From

January 21 through January 24, 1991, AVCF was in the midst of a “shake down”

and its inmates were subjected to cell and strip searches. The searches were

conducted by a special team from the Colorado Department of Corrections, the

Special Operations Response Team (SORT), which videotaped them. According

to Mr. Hayes’s recollection, he was searched on January 24, 1991. Although

some of the inmates were searched in their cells, Mr. Hayes and other inmates

were searched in the prisoner day room, an open area visible to other inmates and


1
       By order dated February 11, 1999, the district court denied Mr. Hayes’s
motion for leave to proceed on appeal in forma pauperis pursuant to 28 U.S.C.
§ 1915 and Fed. R. App. P. 24, determining that his appeal was “not taken in good
faith because [he] has not shown the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.” R.,
Vol. II, Doc. 129. We hereby grant Mr. Hayes’s motion to proceed pursuant
to the installment payment provisions of 28 U.S.C. § 1915(b).

                                           -2-
people passing by. Mr. Hayes was most aggrieved by the fact that women in the

area were able to observe the search. As also relevant here, it appears that, for a

limited period of time, the entry way to the bathroom in Mr. Hayes’s living unit

was not covered with a shower curtain.

       Mr. Hayes initiated this action pro se, invoking the Fourth, Eighth, and

Fourteenth Amendments and seeking declaratory and injunctive relief as well as

money damages pursuant to 42 U.S.C. § 1983. Mr. Hayes’s complaint lists as

defendants various named prison officials and the unnamed members of the

January 24, 1991 SORT team. The district court granted defendants’ motion for

summary judgment based on defendants’      Martinez report. See Martinez v. Aaron ,

570 F.2d 317 (10th Cir. 1978). We saw Mr. Hayes’s case initially when he

appealed that grant.   See Hayes v. Marriott , 70 F.3d 1144 (10th Cir. 1995). As

relevant here, this court reversed the district court, in part, holding the record did

not support the grant of summary judgment on Mr. Hayes’s Fourth Amendment

claims and remanded the case for further proceedings. Specifically, this court

found Mr. Hayes’s Fourth Amendment claims were not refuted for purposes of

summary judgment by defendants’      Martinez report. The Martinez report

contained unsworn statements which failed to name the specific female staff

members who were allowed to view the search or explain why those female staff

members were present and whether their presence was related to prison functions.


                                          -3-
See id. at 1147-48. In addition, this court held that the district court’s legal

conclusion, that “a ‘single or minimal viewing’ of a prisoner by prison officials

of the opposite sex is insufficient as a matter of law to constitute a Fourth

Amendment violation,” was not supported by Tenth Circuit precedent.        Id.

at 1147.

      On remand, the district court referred the matter to a magistrate judge for

an evidentiary hearing pursuant to 28 U.S.C. § 636(b)(1)(B). Only two issues

remained for resolution: (1) whether Mr. Hayes’s constitutional right to privacy

was violated by the manner in which the January 24, 1991 strip search was

conducted; and (2) whether the lack of shower curtains in the entry to the inmate

bathroom/shower facility violated the Fourth Amendment. After the hearing, the

magistrate judge issued a recommendation finding that the strip search “violated

Plaintiff’s constitutional right of bodily privacy under the Fourth Amendment”

and that:

      To the extent that Plaintiff has requested declaratory relief, and his
      complaint may be broadly construed to that effect, judgment should
      be entered on his behalf as to the conduct of the unknown SORT
      supervisor or team members who required a strip search in the day
      room in front of women who were not essential employees for the
      strip search and in front of other inmates.

R., Vol. II, Doc. 116 at 14.

      The magistrate judge went on to find the defendants actually named by

Mr. Hayes in his complaint did not personally participate in the search, so

                                          -4-
damages could not be levied against them under § 1983.   2
                                                             Thus, because

Mr. Hayes failed to identify by name the appropriate individuals, the magistrate

judge concluded that Mr. Hayes could not recover any monetary damages but that

he should be accorded declaratory judgment as to the manner in which the strip

search was conducted. The magistrate judge specifically found that an unknown

member of the SORT team was in charge of Mr. Hayes’s strip search and that the

evidence established that Mr. Hayes and other inmates were humiliated and

degraded by the unknown SORT team members. As to the shower curtain privacy

issue, the magistrate judge found there was: (1) no constitutional deprivation;

and (2) the named defendants did not personally participate in the removal of the

shower curtain.

      The district court adopted the magistrate judge’s recommendation but it

was troubled by the issue of possible unresolved monetary damages as against the

unknown SORT team members. The district court noted that Mr. Hayes served

defendants with interrogatories requesting that the SORT team members be



2
       The magistrate judge found that the videotaping in itself did not invade
Mr. Hayes’s privacy rights. In Hayes , this court noted that, since the Martinez
report contained only an unsworn statement that the videotape of the search was
not available for unlimited and unrestricted viewing, the issue needed further
development in the record.    See Hayes , 70 F.3d at 1148-49 n.5 (providing that
legitimate security and other interests support videotaping of prison searches).
Based on the testimony discussed by the magistrate judge, there is no evidence
to support a constitutional violation.

                                         -5-
identified and filed motions to compel and for sanctions when defendants failed

to produce the information. The district court then noted the magistrate judge’s

order of November 26, 1996, compelling defendants to respond to Mr. Hayes’s

discovery requests. Accordingly, in its order entering judgment and dismissing

the action, the district court also ordered defendants’ counsel to “furnish plaintiff

with the identity of the SORT team members within 90 days of [the] Order” and

then granted Mr. Hayes “leave to file a new action for monetary relief against

those defendants.” R., Vol. II, Doc. 124 at 4.

      Mr. Hayes raises a number of issues on appeal. He contends that: (1) he

was denied his rights to a jury trial, discovery, discovery sanctions, pretrial

conference, and default judgment; (2) the magistrate and district judge were

biased; (3) the named defendants are liable for constitutional violations under

a “failure to train” theory; and (4) his constitutional rights were violated by

defendants’ removal of the shower curtain and the videotaping of the search.

We have reviewed the record, the magistrate judge’s recommendation, the district

court’s order, the parties’ briefs, and the relevant legal principles and case law.

We find Mr. Hayes’s arguments on appeal without merit, with one exception that

requires a very limited remand; Mr. Hayes’s opening brief to this court implies

that he never learned the identities of the January 1991 SORT team members. Mr.

Hayes states that he “was denied discovery and also denied having sanctions


                                          -6-
against the Defendants” and “[a]s a result of the Defendants disobeying several

court Orders Plaintiff is being asked to file another action for damages.”

Appellant’s Opening Br. at 4-5. In contrast, the defendants contend, in their

document entitled “Defendants’ Response to Court Order of December 23, 1999

[sic],” filed on March 23, 1999, that they provided this information to Mr. Hayes

on February 14, 1997.   See R., Vol. II, Doc. 132. If Mr. Hayes never received the

names of the January 1991 SORT team members, he was effectively denied the

opportunity to amend his complaint to name those individuals, and the evidentiary

hearing may have been premature as it was held without key parties and key

witnesses.

      The record reflects many attempts by Mr. Hayes to secure discovery in his

case. In his first set of interrogatories, dated June 7, 1996, Mr. Hayes requested

the names of all the members of the SORT team that conducted the inmate

searches at AVCF during January 1991.      See R., Vol. I, Doc. 76, Attach. 2 at 6.

Thereafter, Mr. Hayes filed three motions to compel, seeking sanctions for

defendants’ failure to respond to his interrogatories and document requests.

These motions all precede February 14, 1997 (the last one was filed on February

12, 1997). See R., Vol. I, Doc. 101.    As noted by the district court, the magistrate

judge issued an order on November 26, 1996, compelling defendants to provide




                                           -7-
Mr. Hayes with the requested discovery by December 20, 1996.      See R., Vol. I,

Doc. 94.

      Nothing in the record established that defendants ever responded to the

magistrate judge’s order. However, as stated above, defendants filed a response

to the district court’s order of dismissal and judgment to which they attached a

copy of their discovery response, including a list of the January 1991 SORT

team members as well as most of their addresses.   See R., Vol. II, Doc. 132.

Defendants’ discovery response, dated February 14, 1997, contains a certificate

of service indicating that it was mailed to Mr. Hayes at the Fremont Correctional

Facility on that same date.

      This record is troubling. It may be the case that Mr. Hayes never received

this information. In the event he did not have the information he needed to amend

his complaint, the district court’s solution may not adequately address the

situation. Making Mr. Hayes file a new action may unduly burden him. The

preferable course of action is to allow Mr. Hayes to amend his complaint to name

the individual SORT team members who participated and/or supervised the

search. This saves Mr. Hayes from having to file a new complaint and pay

corresponding filing fees. However, if he did receive defendants’ discovery

response, Mr. Hayes had plenty of time to act on the information. We therefore

remand the case to the district court for the limited purpose of ascertaining


                                          -8-
whether Mr. Hayes received defendants’ discovery response. If he did not, the

district court should allow Mr. Hayes to amend his complaint to name the

individual SORT team members and proceed accordingly.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED in part, REVERSED in part, and REMANDED to the

district court for proceedings consistent with this order and judgment. We hereby

grant Mr. Hayes’s motion to proceed on this appeal pursuant to the payment

provisions of 28 U.S.C. § 1915(b). In addition, we accept Mr. Hayes’s opening

brief, filed on March 25, 1999, which we construe and grant as a motion for leave

to file an amended brief, in replacement of his earlier brief, filed on March 22,

1999. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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