                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-1845
                         ___________________________

  Wallace James Beaulieu; Lionel Tohannie Yazzie; Larry DeLaney, Sr.; Emery
         Eugene Bush; John Louis Beaulieu, III; Michael J. Gimmestad

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

 Cal R. Ludeman; Joan Fabian; Terry Carlson; Jack Erskine; Dean Mooney; Paula
Johnson; Denise Considine; Eric Hattenberg; Dennis Benson; Greg Carlson; Brian
         Ninneman; Ann Linkert, in their official and personal capacities

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: May 15, 2012
                               Filed: August 29, 2012
                                   ____________

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

SMITH, Circuit Judge.

      Wallace James Beaulieu ("Beaulieu"), Lionel Tohannie Yazzie, Larry DeLaney
Sr., Emergy Eugene Bush, John Louis Beaulieu III ("Beaulieu III"), and Michael J.
Gimmestad (collectively, "Patients") are patients civilly committed to the Minnesota
Sex Offender Program (MSOP). The Patients brought suit under 42 U.S.C. § 1983
against Minnesota Department of Human Services officials ("DHS officials")1 and
Minnesota Department of Corrections officials ("DOC officials"),2 alleging that
various MSOP policies and practices relating to the Patients' conditions of
confinement are unconstitutional. The district court3 granted summary judgment to
DHS officials and DOC officials on all of the Patients' claims. On appeal, the Patients
assert that the district court erred in finding that (1) the Patients will not be housed
again at the Annex—two units on the grounds of the Minnesota Correctional
Facility–Moose Lake (MCF-ML); (2) there was no triable issue of fact on their claims
that (a) Beaulieu and Yazzie were transferred to the Annex in retaliation for filing a
lawsuit and (b) Beaulieu was transferred to the Behavioral Therapy Unit (BTU)
located at the MSOP's Moose Lake Facility in Moose Lake, Minnesota, in retaliation


      1
       DHS operates the MSOP program. The DHS officials involved in this action
include: (1) Dennis Benson, the MSOP Executive Director since March 2008; (2)
Denise Considine, the Annex Director from March 2006 until May 2007; (3) Jack
Erskine, the MSOP Director from summer 2006 to June 2008; (4) Greg Carlson, the
MSOP Moose Lake Program Director from May 2008 to the present; (5) Eric
Hattenberg, the Annex Unit E Director from March 2007 until April or May 2009; (6)
Paula Johnson, the Annex Security Director and Program Manager from summer
2006 to November 2007; (7) Ann Linkert, the Annex Program Manager since
November 2007 and the Complex 1 Program Manager since July 2009; (8) Cal
Ludeman, the DHS Commissioner; (9) Dean Mooney, the MSOP Director from
February 2004 to summer 2006 and the Moose Lake Site Director (including the
Annex) from summer 2006 to summer 2008; and (10) Brian Ninneman, the
Behavioral Therapy Unit Group Supervisor.
      2
        The DOC officials involved in this action include: (1) Joan Fabian, the DOC
Commissioner, and (2) Terry Carlson, the Warden of the Minnesota Correctional
Facility at the Minnesota Correctional Facility–Moose Lake from June 2001 to
December 2007.
      3
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

                                          -2-
for filing the instant suit; (3) the MSOP's unclothed visual body searches are
constitutionally reasonable; (4) the MSOP's use of restraints during transport to and
from the facilities is reasonable; (5) the MSOP's seizure of the Patients' televisions
did not constitute an unreasonable seizure; (6) no actual harm or injury resulted from
the MSOP's mail policies; (7) the MSOP's telephone policy, as it applies to privileged
communications, is rationally related to the legitimate penological interests of
security and conserving limited staff resources; (8) the temporary double-bunking of
inmates and use of communal showers did not violate the Patients' privacy rights; (9)
the Patients' claims of unsanitary conditions either were not supported by admissible
evidence or were of such a short duration that they did not result in a due process
violation; and (10) Beaulieu failed to identify any property or liberty interest
implicated by the officials' refusal to give him access to a computer for legal research.
We affirm.

                                   I. Background
                                    A. Facilities
      The MSOP houses its patients at several facilities, including facilities located
in Moose Lake, Minnesota. The MCF-ML, which the DOC operates, is located near
the Moose Lake Facility. In 2006, because the MSOP patient population increased,
the DOC agreed to permit the DHS to temporarily take over two units on the MCF-
ML site known as the Annex. A razor wire fence marked the exterior perimeter of the
MCF-ML. The MSOP took over Units 8 and 10 of the MCF-ML, which were
separated from the remainder of the facility by a separate razor wire fence. The Annex
units were shaped like a "Y," shared an outdoor courtyard separate from the MCF-
ML, and were connected by a corridor under the MSOP's control. Both DOC and
DHS staff monitored the Annex entrance; however, the DOC staff did not interact
with Annex patients or visitors.

      In February 2006, MSOP and DOC staff met to address operational issues
regarding the MSOP's temporary use of the facilities. During these meetings, Warden

                                          -3-
Carlson shared the DOC's security policies with the MSOP staff to ensure the security
of the DOC's facility. Aside from sharing DOC policies, the DOC did not use any
other means to ensure that the MSOP used DOC procedures.

       The MSOP sought the DOC's advice regarding the upgrading of the MSOP's
security practices in light of recent security breaches at another MSOP facility in St.
Peter, Minnesota. According to Mooney, a director for the MSOP and the Annex, a
DOC official strongly recommended that the MSOP implement unclothed visual body
searches upon patients leaving and entering the Annex. Mooney testified that he and
Erskine, another MSOP director, had already determined that they were going to
implement unclothed searches in light of the security risks that patients posed,
population growth, and the need to strengthen security. Mooney testified that the
MSOP made the decision to implement unclothed visual body searches of patients.

       Erskine, who was Mooney's supervisor at the time, did not attend the meetings
between the MSOP and the DOC as to the MSOP's use of the Annex. But his
understanding, based on what Mooney told him, was that the only policy that the
MSOP had to adopt regarding its use of the Annex was the unclothed-search policy.
According to Erskine, the MSOP carefully made its decision to implement the DOC's
requested unclothed-search policy. Erskine testified that DHS and therapy staff
reviewed the policy because of a concern that the unclothed searches would disrupt
the therapeutic environment. According to Erskine, the MSOP adopted the unclothed-
search policy because it needed the space temporarily and because his staff reported
to him that if the MSOP did not adopt the search policy, the DOC would not permit
the MSOP to use the Annex. Aside from the unclothed-search policy, the MSOP
developed its own security policies, and it did not implement any other DOC policies
at the Annex. The MSOP would, however, refer to DOC policies in some cases.




                                         -4-
       From August 2006 to June 2009, the MSOP operated the Annex. In July 2009,
the MSOP moved out of the Annex, and the DOC converted the Annex into living
units for its inmates.

       After the MSOP vacated the Annex, the MSOP continued to operate the Moose
Lake Facility and opened Complex 1. The Moose Lake Facility has four conventional
units, the BTU, and a special needs medical unit. In July 2009, Complex 1 opened
with five units.

                               B. Patients' § 1983 Suit
       The Patients brought suit under 42 U.S.C. § 1983 against DHS and DOC
officials, alleging that various MSOP policies and practices relating to the Patients'
conditions of confinement at the Annex, the BTU, and Complex 1 are
unconstitutional.4

       The DOC officials moved for summary judgment as to all claims, arguing that
they had no decisionmaking authority over the MSOP. The DHS officials also moved
for summary judgment on all claims, asserting that there were no genuine issues of
material fact and that they were entitled to judgment as a matter of law on the
Patients' constitutional claims. The district court granted summary judgment in favor
of the DHS and DOC officials.

                                  II. Discussion
      On appeal, the Patients argue that the district court erred in granting summary
judgment to the DHS and DOC officials because triable issues of fact exist as to their
claims that the DHS's and DOC's policies and practices violate their constitutional

      4
       At the time that the Patients commenced this suit, they were housed in the
Annex. After the MSOP stopped using the Annex to house patients, Beaulieu was
transferred to the BTU; Yazzie, DeLaney, Bush, and Gimmestad were transferred to
Complex 1; and Beaulieu III was transferred to the facility in St. Peter, Minnesota.

                                         -5-
rights. Specifically, the Patients claim that the DHS and DOC officials, through the
challenged policies and procedures, violated their constitutional rights by (1)
retaliating against them for filing other civil actions; (2) forcing them to endure
invasive, full-body strip searches whenever they leave a facility's secure perimeter;
(3) placing them in full restraints for transport, regardless of an individual's risk; (4)
seizing their televisions without compensation; (5) opening their legal mail outside
of their presence; (6) restricting their telephone access, including attorney calls; (7)
not providing them with adequate privacy in showers and toilets; (8) subjecting them
to unsanitary conditions; and (9) denying them access to legal computers. The
Patients also assert that the district court erred in denying them injunctive relief
pertaining to the Annex based on its finding that there was no indication that any
MSOP patients will be housed at the Annex again.

       "We review summary judgment de novo, viewing the record in the light most
favorable to the non-moving party." Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir.
2004). A district court properly grants summary judgment when "there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter
of law." Id.

                                  A. Injunctive Relief
        The Patients argue that the district court erroneously determined that the
Patients will not be housed at the Annex again. According to the Patients, because the
MSOP population is growing at a faster rate than the MSOP's capacity, the MSOP
will likely use the Annex again for additional space. They also maintain that the
MSOP's voluntary cessation of the alleged illegal practice does not deprive the court
of its ability to determine the legality of the practices.

      "In general, a pending claim for injunctive relief becomes moot when the
challenged conduct ceases and there is no reasonable expectation that the wrong will
be repeated." Roubideaux v. N.D. Dep't of Corr. & Rehab., 570 F.3d 966, 976 (8th

                                           -6-
Cir. 2009) (quotation and citation omitted). A court properly dismisses a claim as
moot "if it has lost its character as a present, live controversy of the kind that must
exist if [the court is] to avoid advisory opinions on abstract questions of law." Id.
(quotation and citation omitted). "We lack jurisdiction over cases in which, due to the
passage of time or a change in circumstances, the issues presented will no longer be
live or the parties will no longer have a legally cognizable interest in the outcome of
the litigation." Id. (quotation, alteration, and citation omitted).

      In the present case, "[a]ll of the [Patients] have been transferred out of [the
Annex], and there is no suggestion that they might be returned." Id. The Patients
merely speculate that MSOP's population is growing and, therefore, the Patients will
return to the Annex. The Patients' "speculation and conjecture are insufficient to
defeat summary judgment." Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d
1025, 1028 (8th Cir. 2006). Therefore, we agree with the district court that the
Patients' claim for injunctive relief pertaining to the Annex is moot. See Robideaux,
570 F.3d at 976 ("All of the Female Inmates have been transferred out of the NDSP,
the James River CC, and the Missouri River CC, and there is no suggestion that they
might be returned. Their class certification is for injunctive relief, and any equal
protection claim arising out of their previous housing in those other facilities is now
moot."); Gladson v. Iowa Dep't of Corr., 551 F.3d 825, 835 (8th Cir. 2009)
("[B]ecause Howrey is no longer incarcerated at the ISP and subject to the allegedly
offending policy, his claims are moot.").

                                     B. Retaliation
       In their complaint, the Patients alleged that DHS officials Ludeman, Mooney,
and Erskine, as well as other MSOP staff retaliated against Beaulieu and Yazzie for
filing a § 1983 suit on December 7, 2006, by transferring them to the Annex.
Additionally, they alleged that these officials retaliated against Beaulieu for filing the
instant suit by transferring him to the BTU.



                                           -7-
             To establish a § 1983 claim for retaliation in violation of the First
      Amendment, a plaintiff must allege (1) that [he] engaged in a protected
      activity, (2) that the defendants responded with adverse action that
      would "chill a person of ordinary firmness" from continuing in the
      activity, and (3) that "the adverse action was motivated at least in part
      by the exercise of the protected activity."

L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 807–08 (8th Cir.
2012) (quoting Revels, 382 F.3d at 876). "In brief, the plaintiff must show the official
took the adverse action because the plaintiff engaged in the protected speech." Revels,
382 F.3d at 876. Although "[t]he causal connection is generally a jury question, . . . it
can provide a basis for summary judgment when the question is so free from doubt
as to justify taking it from the jury." Id. (quotation and citation omitted).

       In the prison context, we have observed that prison officials are prohibited
from "punish[ing] an inmate because he exercises his constitutional right of access
to the courts." Sisneros v. Nix, 95 F.3d 749, 751 (8th Cir. 1996). But, "[i]n raising a
retaliatory transfer claim, the prisoner . . . face[s] a substantial burden in attempting
to prove that the actual motivating factor for his transfer was the impermissible
retaliation." Goff v. Burton, 7 F.3d 734, 737 (8th Cir. 1993) (quotations and citations
omitted). In such a case, the prisoner bears the burden of "prov[ing] that but for an
unconstitutional, retaliatory motive the transfer would have not occurred." Id. at 738.
"This is a 'but for' test dealing with motive, not causation." Sisneros, 95 F.3d at 752.

                    1. Beaulieu and Yazzie's Transfer to the Annex
       In August 2006, the MSOP began using the Annex to house patients. The
Annex was a "non-participant unit," which meant that if patients were not
participating in a conventional sex-offender treatment, the MSOP would transfer them
to the Annex. Beaulieu and Yazzie contend that their transfers to the Annex resulted
from retaliation for filing a suit based on denial of their religious liberties. The
undisputed facts show otherwise. Beaulieu and Yazzie filed a § 1983 action claiming

                                          -8-
denial of their religious freedom ("Religion Suit") on December 7, 2006. Summons
was served on the DHS officials on January 17, 2007. Beaulieu was transferred to the
Annex on January 2, 2007, and Yazzie was transferred to the Annex on January 11,
2007.

       Based on our review of the record, we conclude that no genuine issue of
material fact exists as to Beaulieu's and Yazzie's retaliation claims; therefore, the
district court properly granted summary judgment to the DHS officials. Beaulieu and
Yazzie satisfied the first element of their prima facie case because they engaged in
a protected activity—filing the Religion Suit. See Haynes v. Stephenson, 588 F.3d
1152, 1155–56 (8th Cir. 2009) ("The filing of a prison grievance, like the filing of an
inmate lawsuit, is protected First Amendment activity."(quotation and citation
omitted)). But they failed to show that filing the Religion Suit was the "but for" cause
of their transfers.

       Beaulieu and Yazzie received their seven-day notice of transfer to the Annex
on December 26, 2006, and again on December 29, 2006. Although they filed the
Religion Suit on December 7, 2006, the record reflects that the U.S. Marshals Service
served the DHS officials with the Religion Suit on January 17, 2007—after
Beaulieu's and Yazzie's transfers to the Annex on January 2, 2007, and January 11,
2007, respectively. Beaulieu and Yazzie speculate that the DHS officials could have
learned of the Religion Suit prior to being served; however, they cite no record
evidence to support their assertion that the DHS officials actually knew about the
Religion Suit prior to the date of service.5 See Bloom, 440 F.3d at 1028 (stating that
"speculation and conjecture are insufficient to defeat summary judgment"). As a
result, the DHS officials could not have retaliated against Beaulieu and Yazzie for

      5
       Even if the DHS learned of the Religion Suit from the search of Beaulieu's
room on January 3, 2007, prior to the date of service, the search and purported
copying of Beaulieu's "legal papers" occurred after Beaulieu's transfer to the Annex
on January 2, 2007, and therefore cannot provide a basis for retaliatory transfer.

                                          -9-
filing the Religion Suit when they did not receive notice of the suit until January 17,
2007—after Beaulieu's and Yazzie's transfers to the Annex.

       Furthermore,"[e]ven if retaliation was one factor in the decision to transfer
[Beaulieu and Yazzie to the Annex], [they] ha[ve] not shown that [their] transfer[s]
would not have occurred 'but for' the retaliation." Webb v. Hedrick, 409 F. App'x 33,
35 (8th Cir. 2010) (unpublished per curiam) (citing Kind v. Frank, 329 F.3d 979, 981
(8th Cir. 2003) (finding retaliation not a "but for" cause of transfer where record
demonstrated that inmate was disciplined and transferred due to pattern of
misbehavior); Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. 1991) (rejecting
retaliatory-transfer claim even where retaliation was clearly factor in transfer)). The
record establishes that if patients were not participating in conventional sex-offender
treatment, then the MSOP would transfer the patients to the Annex. Both Beaulieu
and Yazzie admit that they were not participating in treatment at the time they were
transferred. Although Beaulieu testified that, prior to his transfer to the Annex, he had
signed paperwork so he could return to treatment, the only available class for re-entry
into treatment was at the Annex, not the facility at St. Peter.

                           2. Beaulieu's Transfer to the BTU
       Beaulieu also alleges that the DHS officials retaliated against him for filing the
instant suit by transferring him to the BTU. Patients are typically placed in the BTU
because of continued behavioral problems. This behavior includes assaults and
criminal activity; antisocial behavior; aggressive behavior toward staff and patients;
and disruptive behavior, including interfering with others' treatment and not
complying with the rules. A patient's treatment team—not DHS officials—determines
whether the patient's behavior warrants placement in the BTU.

        Beaulieu was transferred to the BTU on March 3, 2007. The Patients filed the
original complaint in the present case on March 14, 2007. According to Beaulieu, he
initially mailed the complaint on February 28, 2007, but it was returned to him

                                          -10-
because he needed to file separate affidavits from each named plaintiff to proceed in
forma pauperis. Beaulieu maintains that the return envelope from the district court
had been opened and staples had been removed from the documents. The summons
was not issued until June 7, 2007.

       Beaulieu argues that the DHS officials had notice of the instant case because
they opened and inspected the complaint prior to his transfer to the BTU on March
3, 2007. According to Beaulieu, shortly after the opening of this legal mail, he was
transferred to the BTU. Again, "[e]ven if retaliation was one factor in the decision to
transfer [Beaulieu to the BTU], [Beaulieu] has not shown that his transfer would not
have occurred 'but for' the retaliation." Webb, 409 F. App'x at 35. Beaulieu does not
dispute that an inmate may be placed in the BTU by his treatment team due to
aggressive and disruptive behavior. He also does not dispute that supplemental
incident reports show that he exhibited behavioral problems on January 20, 2007;
January 21, 2007; and at least nine times in February 2007. Beaulieu does not argue
that such incidents fail to indicate aggressive or disruptive behavior. Therefore,
Beaulieu has not shown that "but for" the filing of the present suit, he would not have
been transferred to the BTU.

                            C. Unclothed Full Body Searches
                                   1. Search Policy
      At the Annex, the MSOP conducted unclothed visual body searches of patients
before and after they left the Annex's secured perimeter, after contact visits, and based
on reasonable suspicion.

        The MSOP determined, based on its experience with persons in secured
facilities, that unclothed searches of patients were an effective method of detecting
escape paraphernalia, hidden weapons, handcuff keys, and other contraband. The
MSOP concluded that pat-downs over clothing were not as effective as unclothed
searches because staff could miss small items.

                                          -11-
       The MSOP applied its search policy uniformly across the patient population
and did not require a less intrusive search prior to a strip search. The MSOP search
procedure mandated that the search occur in a private room. Two same-sex staff
members and the patient were present. The patient removed his clothing and gave it
to one staff member to be searched, while the other staff member conducted a visual
search of the patient's naked body from five feet away. The visual search included the
patient lifting his genitals, showing his arm pits and the bottoms of his feet, spreading
his fingers and buttocks, opening his mouth, and running his hands through his hair.
After the visual search, the patient dressed. Staff members only touched a patient if
he lost his balance to prevent him from falling.

       If a patient refused to undergo the unclothed visual body search before a
contact visit, then he was only allowed a non-contact visit. If a patient refused to
undergo the search before transport, then the patient was not transported, except in
cases of medical emergencies. If a patient refused to undergo the search on return to
the facility, then he was placed in protective isolation for one-to-one observation until
he complied with the search or until the staff determined that the patient was not a
security risk.

       Since July 2009 when the MSOP vacated the Annex, the MSOP policy requires
unclothed visual body searches before and after transport, after contact visits upon
suspicion and with the facility director's approval, or if reasonable suspicion exists
to believe that a patient has committed a crime or possesses contraband. "Patients
refusing to participate in an unclothed visual body search will be restrained and
escorted . . . to a Protective Isolation (PI) Unit or designated room." Once the patient
arrives "in the designated area, staff will again ask if the patient is willing to
participate in an unclothed visual body search." "If the patient continues to refuse to
participate in the search," then staff will conduct a pat-down. A patient refusing to
participate in the search "will be placed in an unoccupied room" with a camera, "if
available, and staff will maintain continual patient observation via the camera." "If

                                          -12-
a room with a camera is not available, the patient will be kept under continual staff
observation." "If the patient continues to refuse to participate in an unclothed visual
body search, a staff[-]assisted unclothed visual body search may occur." When
patients refuse to undergo an unclothed visual body search, "[s]taff[-]assisted
unclothed visual body searches [do] not occur without prior permission from the
Executor Director or designee." Furthermore, such "search will not occur unless there
is reasonable suspicion of imminent substantial risk to the safety or health of the
patient, or the security of the facility."

       The Patients testified that they underwent unclothed visual body searches at the
Annex. On appeal, they argue that the "MSOP has provided no reasonable
explanation for why strip searches are undertaken before a patient leaves the secure
perimeter—a policy more restrictive than the MN–DOC imposes." According to the
Patients, the MSOP has less intrusive methods available to identify contraband,
including "pat-downs, metal detectors, x-ray scanners, partial strip searches, and drug
sniffing dogs." They assert that, drawing all reasonable inferences in their favor, a
genuine issue of material fact exists as to the reasonableness of the policy.

          The purpose of the unclothed-search policy at the Annex before a patient left
the secure perimeter was "to protect the transport team that was moving the patient,
and to protect the public if [the patient] w[as] going out into the public to insure that
contraband was not being smuggled that would assist in an escape or that could
threaten the public." Johnson, the Annex Security Director and Program Manager,
testified that the MSOP "had problems in the past where patients have secreted upon
themselves contraband that could have assisted in an escape during a transport."
These "kinds of items" included "[w]ire, a fashioned key, something that could have
been used as a cuff key that would have potentially opened the restraints[, and]
. . . .[g]lass, piece[s] of glass." The MSOP had "patients who moved out of one secure
perimeter from one of [its] facilities and into another and drugs were found." In fact,



                                          -13-
Beaulieu testified that he had been criminally charged with attempting to introduce
contraband—marijuana and cocaine—into the BTU facility.

       "The Minnesota program for civil commitment of dangerous persons like [the
Patients] to state custody and the accompanying curtailment of their liberty interests
is constitutionally permissible." Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir.
2006). "The nature of [the patients'] liberty interest in being free from isolation must
therefore be understood in the context of that commitment and its accompanying
restrictions." Id. Under this court's precedent, involuntarily civilly committed persons
retain the Fourth Amendment right to be free from unreasonable searches that is
analogous to the right retained by pretrial detainees. Serna v. Goodno, 567 F.3d 944,
948–49 (8th Cir. 2009). "Although an involuntarily committed patient of a state
hospital is not a prisoner per se, his confinement is subject to the same safety and
security concerns as that of a prisoner." Revels, 382 F.3d at 874 (citing Andrews v.
Neer, 253 F.3d 1052, 1061 (8th Cir. 2001) (holding that an excessive-force claim
from an involuntarily committed state hospital patient should be evaluated under the
standard as an excessive-force claim brought by a pretrial detainee)).

       Thus, the Patients' claim "turns in part on the extent to which this [c]ourt has
sufficient expertise and information in the record to mandate, under the Constitution,
the specific restrictions and limitations sought by those who challenge the visual
search procedures at issue." Florence v. Bd. of Chosen Freeholders of the Cnty. of
Burlington, 132 S. Ct. 1510, 1513 (2012). "In addressing this type of constitutional
claim courts must defer to the judgment of correctional officials unless the record
contains substantial evidence showing their policies are an unnecessary or unjustified
response to problems of [institutional] security." Id. at 1513–14. The Supreme "Court
has confirmed the importance of deference to correctional officials and explained that
a regulation impinging on an inmate's constitutional rights must be upheld 'if it is
reasonably related to legitimate penological interests.'" Id. at 1515 (quoting Turner
v. Safley, 482 U.S. 78, 89 (1987)).

                                         -14-
        Furthermore, the Court has "recognized that deterring the possession of
contraband depends in part on the ability to conduct searches without predictable
exceptions." Id. at 1516 (citing Hudson v. Palmer, 468 U.S. 517 (1984)).
"[C]orrectional officials must be permitted to devise reasonable search policies to
detect and deter the possession of contraband in their facilities." Id. at 1517 (citing
Bell v. Wolfish, 441 U.S. 520, 546 (1979)). "The task of determining whether a policy
is reasonably related to legitimate security interests is 'peculiarly within the province
and professional expertise of corrections officials.'" Id. (quoting Bell, 441 U.S. at
548). As a result, "in the absence of substantial evidence in the record to indicate that
the officials have exaggerated their response to these considerations courts should
ordinarily defer to their expert judgment in such matters." Id. (quotations and
citations omitted).

        In the present case, the DHS officials "rightly proffer institutional security as
a justification for the visual body-cavity search[es] of [the patients]." Serna, 567 F.3d
at 953. The purpose of the unclothed visual body search policy before a patient left
the secure perimeter was "to protect the transport team that was moving the patient,
and to protect the public if [the patient] w[as] going out into the public to insure that
contraband was not being smuggled that would assist in an escape or that could
threaten the public." The DHS officials "had specific evidence and heightened
concerns regarding" patients smuggling contraband out of the MSOP facilities to aid
in an escape attempt. Serna, 567 F.3d at 953 (citing, inter alia, Franklin v. Lockhart,
883 F.2d 654, 656 (8th Cir. 1989) (considering, in the context of a prison, the "history
of contraband in the building" in finding justification for visual body-cavity searches
sufficient)).

       The Patients argue that less intrusive methods exist to identify contraband, such
as pat-downs, metal detectors, x-ray scanners, partial strip searches, and drug-sniffing
dogs. But "officials are [not] required in all cases to apply the least-intrusive methods
or proceed through a series of progressively more invasive techniques en route to

                                          -15-
conducting highly invasive searches." Id. at 955. "The Court in Bell refused to adopt
a less-invasive-means test." Id. (citing Bell, 441 U.S. at 559 n.40 ("[T]he logic of such
elaborate less-restrictive-alternative arguments could raise insuperable barriers to the
exercise of virtually all search-and-seizure powers." (quotation omitted))). If this
court were to strictly apply a "less intrusive means" test, then we would "effectively
deprive institutional administrators of the deference noted in Bell" and Florence. Id.
Nonetheless,

      our cases dictate that, while it is not necessary for officials to employ the
      least-invasive search techniques available, it is proper for courts to
      consider the availability of simple, safe, and less invasive techniques
      that officers elected not to pursue when assessing the reasonableness of
      performing body cavity searches en mass on a treatment center
      population.

Id.

       Here, the DHS officials offered a reasonable explanation for why less invasive
search techniques are ineffective. Hattenberg, Annex Unit E Director, testified that
the MSOP did not utilize pat-down searches or less intrusive search methods because
"the very popular way to sneak contraband into the facility is when the client would
leave, and there are various places that cannot be searched just using a pat search."
Similarly, Mooney, an MSOP director, testified that pat-down searches "or other
unclothed or other clothed search[es]" were "less effective" because "you're checking
clothing that's crushed in your hand or something [sic] you can miss a small object,
and margin for error is not acceptable." Also, David Prescott, Clinical Director for the
MSOP Moose Lake Facility, averred that, in developing the MSOP's search policy,
the MSOP "considered lesser restrictive options. For example, [the] MSOP
considered use of metal detection, but [it] recognized that not all contraband that
could be hidden on a client's body will be metal." He also noted that "the B.O.S.S.
chair, a body orifice scanning chair," "only scans for metal objects; thus, non-metal

                                          -16-
contraband would not be detected." Therefore, the MSOP's unclothed-search
procedure was "designed to uncover contraband that can go undetected by a patdown,
metal detector, and other less invasive searches." Florence, 132 S. Ct. at 1520.

       We conclude that, under the specific facts of this case, the MSOP's policy of
performing unclothed body searches of patients before they leave the secure perimeter
is not unreasonable.6

                                 2. Search of Yazzie
       The Patients also argue that they presented evidence that Yazzie was subjected
to a forced strip search prior to transport wherein staff removed his clothing and
forced him to lie naked on the ground. They maintain that this evidence creates a
genuine issue of material fact as to the reasonableness of the policy.

       Benson, the MSOP Executive Director at the time of the incident, testified that
he vaguely recalled "an incident occurring around an unclothed visual body search."
Benson testified that, as a result of the search, an investigation occurred and a staff
member was disciplined. Benson could not recall the name of the staff member who
was disciplined. Greg Carlson, the MSOP Moose Lake Program Director at the time
of the search, testified that he had "brief recall" of Yazzie's forcible strip search. He
did not authorize the strip search and could not recall who did. According to Carlson,
nobody was disciplined, and he did not "recall the specifics" of any investigation. He
was "[n]ot sure" whether staff violated MSOP policy in conducting the strip search
without his authorization.




      6
       Because we hold that the MSOP search policy is reasonable, we need not
consider the DOC officials' argument regarding their lack of involvement in the
implementation of that policy at the Annex.

                                          -17-
       "Supervisors . . . cannot be held vicariously liable under § 1983 for the actions
of a subordinate." L.L. Nelson Enters., 673 F.3d at 810. "To state a claim, the plaintiff
must plead that the supervising official, through his own individual actions, has
violated the Constitution." Id. "The general responsibility . . . for supervising the
operation of a [facility] is not sufficient to establish personal liability." Estate of
Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). "[A] bare
allegation that someone in supervisory authority has been deliberately indifferent,
without any specification of that person's contact in fact with the plaintiff, [or] even
an explicit charge of inadequate training or supervision of subordinates, is [not]
sufficient to state a [§ 1983] claim." Id.

       "As we have held, a supervising officer can be liable for an inferior officer's
constitutional violation only if he directly participated in the constitutional violation,
or if his failure to train or supervise the offending actor caused the deprivation."
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (quotations and citations omitted).
The Patients' amended complaint does not allege that any of the named defendants
"failed to train" or "failed to supervise" the offending staff members. Even if the
Patients had alleged such claims, "a failure to supervise claim may be maintained only
if a defendant demonstrated deliberate indifference or tacit authorization of the
offensive acts." Liebe v. Norton, 157 F.3d 574, 579 (8th Cir. 1998) (quotations and
citation omitted). Such "claim is governed by the deliberate indifference standard."
Id. The Patients have produced no evidence of deliberate indifference on the part of
any of the named defendants or shown that they authorized the search. And Yazzie
admitted that none of the defendants directly participated in the staff-assisted
unclothed search.

     Accordingly, we hold that the district court properly granted summary
judgment as it relates to Yazzie's staff-assisted unclothed search.




                                          -18-
                                    D. Restraints
                                 1. Restraint Policy
       On July 12, 2006, the MSOP instituted a full-restraints policy for transporting
patients, which provides that "[p]atients will be transported in full restraints.
Exceptions will be determined on a case-by-case basis." "Case-by-case basis" means
that modifications are made for medical emergencies or medical conditions. Full
restraints are placed on patients anytime that they travel outside of the secure
perimeter and include a black box, a wrist chain, and leg irons. The MSOP makes no
individualized determination of risk in determining whether to apply the restraints to
a particular patient because attempting to do so in the past resulted in an escape
attempt.

       The Patients contend that sufficient evidence exists to show that the MSOP's
use of full restraints during transport is an unreasonable and exaggerated response to
a perceived security concern. They assert that the DHS officials have not explained
why all of the measures—a black box, a wrist chain, and leg irons—are collectively
reasonable.

        "[L]iberty from bodily restraint always has been recognized as the core of the
liberty protected by the Due Process Clause from arbitrary governmental action."
Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (quotation and citation omitted).
"This interest survives criminal conviction and incarceration. Similarly, it must also
survive involuntary commitment." Id. "Yet th[is] interest[] [is] not absolute." Id. at
319–20. "In operating an institution such as [the MSOP], there are occasions in which
it is necessary for the State to restrain the movement of residents—for example, to
protect them as well as others from violence." Id. at 320. "The question then is not
simply whether a liberty interest has been infringed but whether the extent or nature
of the restraint . . . is such as to violate due process." Id. at 320.




                                        -19-
          "[W]hether [the Patients'] constitutional rights have been violated must be
determined by balancing [their] liberty interests against the relevant state interests.
If there is to be any uniformity in protecting these interests, this balancing cannot be
left to the unguided discretion of a judge or jury." Id. at 321. "[T]he Constitution only
requires that the courts make certain that professional judgment in fact was exercised.
It is not appropriate for the courts to specify which of several professionally
acceptable choices should have been made." Id. The State "may not restrain residents
except when and to the extent professional judgment deems this necessary to assure
safety." Id. at 324. Therefore, residents "enjoy[] constitutionally protected interests
in . . . reasonably nonrestrictive confinement conditions." Id. To determine if

      the State has met its obligations . . . , decisions made by the appropriate
      professional are entitled to a presumption of correctness. Such a
      presumption is necessary to enable institutions of this type—often,
      unfortunately, overcrowded and understaffed—to continue to function.
      A single professional may have to make decisions with respect to a
      number of residents with widely varying needs and problems in the
      course of a normal day. The administrators, and particularly professional
      personnel, should not be required to make each decision in the shadow
      of an action for damages.

Id. at 324–25.

       Ultimately, "whether one applies Youngberg's professional judgment standard
or Bell's punitive versus non-punitive distinction, the outcome is the same." Thielman
v. Leean, 140 F. Supp. 2d 982, 991 (W.D. Wis. 2001), aff'd, 282 F.3d 478 (7th Cir.
2002). Either approach results in the court "defer[ring] to the professional expertise
of the institution's administrators when evaluating the relationship between the
challenged condition and the government's interest." Id. (citing Youngberg, 457 U.S.
at 322–23 ("there certainly is no reason to think judges or juries are better qualified
than appropriate professionals in making decisions"); Bell, 441 U.S. at 548, 561–62


                                          -20-
(plaintiff must identify "substantial evidence in the record to indicate that the officials
have exaggerated their response" to genuine security concerns in order to overcome
"heavy burden" to show that restriction is excessive)).

       Here, the Patients "may be correct that the institution could address its security
interests with a more tailored policy, but that is not the test." Id. at 992. "[N]othing
in Youngberg suggests that the choice made by the institution must have been the
least restrictive alternative available." Id. Instead, "Youngberg admonishes judges to
respect the choices made by professionals at state institutions. So long as that choice
was made by a professional, it is presumptively valid even if it is not the best
alternative." Id. The Patients "ha[ve] not adduced a single piece of evidence to show
that the [MSOP's] transportation policy represents a substantial departure from
accepted professional judgment, practice or standards." Id. (holding that a Wisconsin
institution's blanket policy of placing patients committed involuntarily as sexually
violent persons in full restraints during transportation to and from facility was
justified by security concerns and did not violate patients' substantive due process
right to freedom from bodily restraint where policy was supported by specific
instances of aggression by these patients and these patients had been adjudicated
dangerous and committed to indefinite term); see also Semler v. Ludeman, Civil No.
09–0732 ADM/SRN, 2010 WL 145275, at *27 (D. Minn. Jan. 8, 2010) ("Given the
rationale for the use of restraints, deemed necessary for safety reasons in light of the
growth of the MSOP program, and possibly in response to an escape attempt . . . , it
cannot be said that Defendants' actions are arbitrary or shocking to the conscience.").
The MSOP's articulated reasons for using full restraints are for the safety of the public
and staff and to prevent escapes and attempted escapes, which have occurred at
MSOP facilities. We conclude that such policy is a proper exercise of the DHS
officials' professional judgment.7


      7
       Because we hold that the MSOP restraint policy is not unreasonable, we need
not consider the DOC officials' argument regarding their lack of involvement in the

                                           -21-
         2. Application of Restraint Policy to DeLaney, Yazzie, and Bush
      According to the Patients, they have also presented evidence showing
unreasonable applications of the restraint policy, including the use of full restraints
on patients during medical emergencies.

        According to Bush, he was "put in full restraints for a medical trip to the
[d]octor when [he] injured [his] shoulder." Similarly, DeLaney stated that he has been
placed in full restraints—handcuffs, shackle, a black box, and belly chain—every
time that he has been transported, despite his carpal tunnel syndrome. The "box
between the cuffs hurts [DeLaney's] wrists," and occasionally his "hands go numb,
even after the restraints are removed." According to DeLaney, he "ha[s] complained
to medical personnel about this but ha[s] never been given treatment." And, Yazzie
testified that, in January 2007, he injured his wrists due to the tight handcuffs during
transport from the St. Peter facility to the Annex.

        In the amended complaint, the Patients only allege that "[t]he use of excessive
force in applying these restraints during [Yazzie's] transport to the Annex caused
physical injury to Mr. Yazzie"; they do not allege an excessive-force claim as to Bush
and DeLaney.8 But even if they did, such claims would fail. "The appropriate inquiry
[for an excessive-force claim] is 'whether the force used to effect a particular seizure
is 'reasonable.''" Chambers v. Pennycock, 641 F.3d 898, 906 (8th Cir. 2011) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). "A de minimus use of force is
insufficient to support a claim, and it may well be that most plaintiffs showing only
de minimis injury can show only a corresponding de minimis use of force. The degree
of injury is certainly relevant insofar as it tends to show the amount and type of force


implementation of the policy.
      8
       Nor did the Patients allege that officials were deliberately indifferent to "a
serious medical need or a substantial risk to a[] [patient's] health or safety." Nelson
v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009).

                                         -22-
used." Id. (internal citations omitted). However, the possibility exists for a plaintiff
"to prove an excessive use of force that caused only a minor injury." Id. Despite this
possibility, we conclude that, in the present case, any excessive-force claim
necessarily fails because Bush, DeLaney, and Yazzie "did not allege, or present any
medical records indicating [that they] suffered any long-term or permanent physical
injury as a result of the handcuffs." Crumley v. City of St. Paul, Minn., 324 F.3d 1003,
1008 (8th Cir. 2003); see also Foster v. Metro. Airports Comm'n, 914 F.2d 1076,
1082 (8th Cir. 1990) (holding that "nerve damage" from being handcuffed too tightly
did not constitute actual injury without "medical records indicating . . . any long-term
injury as a result of the handcuffs").

                      E. Seizure of 20-inch Televisions
    On July 12, 2006, Erskine sent a memo to all patients notifying them that the
MSOP was reducing the size of permitted televisions to 13 inches. According to
Mooney, the MSOP reduced the size of allowed televisions to 13 inches for

      [t]wo reasons. One [was that] . . . the stands that were built onto the
      racks and the beds were built for 13[-]inch TVs, and 13 inches was also
      the size [that the MSOP] could order that would have the clear plastic
      housing on the TVs so that they were much more difficult to hide
      contraband in inside the TVs.

When the MSOP moved into the Annex, the shelves came with the existing bunks.
The MSOP and DOC had no discussions about the size of the televisions in the
Annex.

       On March 13, 2007, David Pingry, Site Director of the Moose Lake Main
Building, sent a memo to staff and patients, which provided that, effective
immediately, patients could "possess or order either of these types of televisions, a
13[-]inch translucent television or a 17[-]inch LCD television." On March 20, 2007,
Pingry issued another memo to staff and patients giving patients "an additional 90

                                         -23-
days from today March 20, 2007, or until [m]idnight of Tuesday[,] July 19, 2007[,]
to have any television over 17 inches removed from the Moose Lake, Main Building
facility."

       On July 24, 2007, Erskine sent out another memo to patients and staff to
remedy any "confusion on what patients at MSOP are allow[ed] for personal
television sets." According to Erskine, patients were allowed "13[-]inch clear chassis
televisions"or "[u]p to 19[-]inch flat screen LCD's." These televisions were the only
ones permitted. Property staff gave patients "a five (5) day notice to provide a plan
for sending [the nonconforming televisions] out." Patients then had "thirty (30)
calendar days to have [the nonconforming televisions] sent out." If the 30 days
expired without a patient sending the nonconforming television out, then the staff
would destroy it. For a period of time, the MSOP paid to have patients'
nonconforming televisions sent out. Gimmestad, Yazzie and Beaulieu III all
possessed nonconforming televisions, which were either disposed of or sent out of
the facility.

       The Patients assert that the district court erred in concluding that the MSOP's
seizure of the nonconforming televisions did not constitute an unreasonable intrusion
on their rights to their televisions. According to the Patients, the "MSOP claimed that
the policy change related to space restrictions or the size of the cell shelf, not
concerns of institutional security." The Patients contend that the MSOP's stated
reasons for the policy change "creates an issue of fact as to whether or not [the
Patients'] rights were violated by the seizure of their property." The Patients maintain
that the MSOP's asserted rationale for the policy change is not a legitimate
justification for forcing the Patients "to pay to destroy or send out their own property,
particularly where there is no record of safety problems caused by larger televisions."

     A "television set [is a] personal 'effect[]' protected by the Fourth Amendment."
Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005). Because the

                                          -24-
Patients' "property is of the type protected by the Fourth Amendment, we turn to
whether [the Patients'] effects were seized." Id. "A seizure of property occurs when
there is some meaningful interference with an individual's possessory interests in that
property." Id. (quotations, alteration, and citations omitted). "The interference which
[the Patients] incurred . . . amounts to a 'seizure' under the Fourth Amendment." Id.

       "To determine the constitutionality of a seizure we must balance the nature and
quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." Baribeau
v. City of Minneapolis., 596 F.3d 465, 483 (8th Cir. 2010) (per curiam) (quotation and
citation omitted). "Balancing the nature of the intrusion against the need for
institutional security," id, we conclude that the Patients' Fourth Amendment claim
fails. The MSOP identified two reasons for its policy requiring 13-inch "clear"
televisions or 17- to 19-inch LCD flat screen televisions: (1) the shelves in the
patients' rooms could safely hold these televisions, and (2) a clear-chassis television
or LCD television would reduce contraband concealment and was only available in
these sizes. These justifications implicate both patient safety and the MSOP's interest
in "maintain[ing] security and order at the institution and mak[ing] certain no
[contraband]. . . reach[es] [the patients]." Id. (quotation and citation omitted) (fourth
alteration in original).9

                                     F. Legal Mail
       Since at least 2004, the MSOP has required that staff check any incoming mail
that scans positive for metal before distributing it to the patients. The mail policy also




      9
       Because we hold that the MSOP television policy does not violate the Fourth
Amendment, we need not consider the DOC officials' argument regarding their lack
of involvement in the implementation of the policy.

                                          -25-
mandates that patients open any packages10 in the staff's presence. The MSOP learned
from monitoring patients' phone calls that patients were using the mail to receive
contraband and inappropriate correspondence. On April 25, 2006, Mooney sent a
memorandum to all patients stating that "[e]ffective immediately, all incoming and
outgoing non-legal mail on a case-by-case basis, including packages, is subject to
being opened and inspected by Special Investigations staff." The memo explained that
the "process [was] necessary to control the introduction of contraband and prohibited
correspondence from entering the treatment facilities."

       On July 16, 2006, Erskine sent a memo to patients about "[u]pcoming
[c]hanges," including that "[a]ll patient mail will be processed through a mail room
and will be checked for contraband prior to distribution." According to Erskine, this
procedure really was not a change from prior procedure. According to Erskine, the
MSOP "strengthened it more, but it was a procedure [the MSOP] always used. All
mail went through a mail room and was distributed to patients and checked for
contraband." Erskine stated that all mail went to the mail room where it was sorted;
thereafter, all pieces—except legal mail—would be opened and checked for
contraband. Erskine explained that, "[i]f it was identified as legal mail, it could be
opened but not read. Legal mail was privileged so [the MSOP] did not tamper with
legal mail if [it] knew for sure that it was legal mail, and most patients had identified
who their attorneys [were]."

    Similarly, Linkert, the Annex Program Manager since November 2007 and the
Complex 1 Program Manager since July 2009, testified that if legal mail set off the


      10
         In the 2004 revision concerning communication and patient mail, a "package"
is defined as "any item of mail larger than a #10 business envelope or thick and heavy
enough to require additional postage." MSOP Policy 302.020, effective June 2, 2009,
defines a "package" as "a wrapped or boxed object, a parcel or bundle containing one
or more objects, a container in which something is packed for storage or mailing to
be delivered by an authorized carrier."

                                          -26-
metal detector, then staff would open it "in front of the patient." And, Johnson
testified that if any mail, including legal mail, tested positive for metal, then staff
opened it at the Annex's secured perimeter. Furthermore, Considine, the Annex
director, testified that the MSOP's policy was to open legal mail at the Annex
perimeter if it "wanded" positive for metal.

      Packages for patients at the Annex initially came through the DOC's perimeter
gate. Pursuant to both DOC and MSOP policy, either MSOP or DOC personnel
handled and searched the packages. Warden Carlson testified that she did not know
about legal packages and that a "package [was] a package." She also stated that legal
mail for DOC prisoners was opened in their presence.

       In June 2009, the MSOP issued a new mail policy stating that staff would open
and visually inspect all incoming mail—except privileged mail—for unallowable mail
or items. "Mail" included letters and packages. "Privileged mail" included "legal
mail." "Legal mail" included "correspondence to or from the court, court staff,
verified attorneys and established groups of attorneys involved in representing
patients in judicial proceedings." Staff was to open and inspect all incoming
packages; staff then sent the packages to the property department for distribution.

       Beaulieu identified three occasions when staff opened his legal mail outside of
his presence: (1) an envelope from the United States Marshal's Office was opened
while he was at the Annex; (2) correspondence from the United States District Court
that contained papers, which had a staple removed, was opened; and (3) a letter from
Frank Bibeau, Beaulieu's civil-commitment attorney, was opened while Beaulieu was
in the BTU. According to Beaulieu, staff told him that the mail received at the Annex
was opened pursuant to the DOC's policy requiring a letter containing metal to be
opened at the Annex gate prior to coming into the secured perimeter.




                                         -27-
        Yazzie testified that legal mail that the "court administrator" sent to him
regarding the Religion Suit was opened in the Annex outside of his presence;
however, he did not know what pieces of mail had been opened. According to Yazzie,
staff told him that his mail was opened because the DOC wanded it positive for metal.

       Beaulieu III testified that when he opened his legal mail, he did so in front of
staff. But he also stated that his legal mail, including at least one unidentified piece
of mail from his civil-commitment attorney, was opened outside of his presence. He
could not recall the number of occasions on which this occurred. The only
explanation given to Beaulieu III was that the mail was opened due to DOC policies
and because the packages contained metal.

      Gimmestad testified that he could recall three pieces of legal mail that were
opened outside of his presence: (1) one from his civil-commitment attorney, (2) one
from the Attorney General's office, and (3) one from the Bureau of Criminal
Apprehension. Gimmestad confirmed that the opening of that mail outside of his
presence did not cause him to miss a legal deadline, result in the dismissal of a claim,
or result in an adverse judgment on a motion. He additionally stated that he had
opened legal mail in front of staff.

        According to DeLaney, in 2006, a court sent back a complaint in a property
case because two pages were missing. DeLaney testified that when he sent the
complaint to the court, all of the pages were present and that the two pages were
destroyed at Moose Lake. He could only recall that his complaint dealt with a
property case; he could not recall the court to which he sent the complaint. DeLaney
testified that he had legal mail opened outside of his presence in 80 separate
instances, including (1) a letter from the Attorney General's office; (2) a letter from
his civil-commitment attorney; (3) a letter from the ACLU; and (4) a letter from his
cousin, a federal judge, who was giving DeLaney advice on a complaint that he
intended to file. DeLaney stated that his cousin, the federal judge, informed him that

                                         -28-
the complaint was missing pages. DeLaney asserted that the only explanation that he
received about staff opening his legal mail was that it was an accident.

        The Patients argue that the DHS officials in the present case "rifled through and
copied [their] privileged mail," giving the officials "an unfair advantage in this
litigation." Specifically, they argue that the DHS officials retaliated against Beaulieu
by transferring him from the Annex to the BTU after they opened his legal mail. They
assert that the opening of his legal mail put Beaulieu's "claims at risk of being mooted
and ma[de] it more difficult to coordinate litigation with his co-plaintiffs." They argue
that the DHS officials have "provided no institutional interest for opening legal mail."
As a result, they conclude that a genuine issue of material fact exists as to whether the
DHS officials violated their rights by opening their legal mail in their absence.

       In the prison context, we have observed that "[p]rivileged prisoner mail, that
is mail to or from an inmate's attorney and identified as such, may not be opened for
inspections for contraband except in the presence of the prisoner." Gardner v.
Howard, 109 F.3d 427, 430 (8th Cir. 1997) (quotation and citation omitted). But
"[w]e have never held or suggested that an isolated, inadvertent instance of opening
incoming confidential legal mail will support a § 1983 damage action." Id. at 431.
Instead, we have found that "an isolated incident, without any evidence of improper
motive or resulting interference with the inmate's right to counsel or to access to the
courts, does not give rise to a constitutional violation." Id. (quotation, alteration, and
citations omitted).

            The act of opening incoming mail does not injure an inmate's right
      to access the courts. The policy that incoming confidential legal mail
      should be opened in inmates' presence instead serves the prophylactic
      purpose of assuring them that confidential attorney-client mail has not
      been improperly read in the guise of searching for contraband.




                                          -29-
Id. Therefore, "'[t]o assert a successful claim for denial of meaningful access to the
courts . . . an inmate must demonstrate that he suffered prejudice'" from the
"inadvertent opening of legal mail." Id. (quoting Berdella v. Delo, 972 F.2d 204, 210
(8th Cir. 1992)).

       Here, the MSOP's mail policy provides that all "legal mail," which includes
"correspondence to or from the court, court staff, verified attorneys and established
groups of attorneys involved in representing patients in judicial proceedings," be
opened in the patients' presence. The Patients have provided no evidence that any
inadvertent openings of their legal mail resulted in actual prejudice. "Absent an
articulation of how the alleged wrongful conduct actually blocked [the Patients']
access to filing a complaint, or caused a filed complaint to be deficient, [the Patients']
alleged injuries are merely speculative." Hartsfield v. Nichols, 511 F.3d 826, 833 (8th
Cir. 2008).11

                                  G. Telephone Access
       The MSOP put in place a phone system policy that only permits outgoing calls.
As a result, patients cannot receive any incoming calls, including incoming calls from
their attorneys. Under the MSOP's telephone policy, patients may make telephone
calls to persons outside of the MSOP, subject to the MSOP recording their
conversations. Also, patients may make unrecorded and unmonitored telephone calls
for the purpose of privileged communications.

       Although the MSOP prohibits incoming calls, it provides the patients with
access to a patient voicemail system, which permits individuals outside of the facility
to leave messages, subject to the MSOP recording and monitoring the messages.


      11
        Because we conclude that the Patients failed to make out a constitutional
violation regarding the DHS's mail policy, we need not reach the DOC officials'
argument regarding their lack of involvement in the Annex's mail policies.

                                          -30-
Because there is no way to distinguish between calls from attorneys and other calls
in the voicemail system, the MSOP monitors all voicemails. Callers leaving a
message on the voicemail system receive notice that messages may be monitored.
Routine telephone calls are limited to 15 minutes. Under the amended policy effective
October 6, 2009, prior to the connection of a patient-initiated telephone call, an
introductory message notifies the recipient that the call is coming from a MSOP
patient and that the call will be monitored and recorded.

       MSOP policy defines "privileged calls" as including "a patient telephone call
to a verified attorney licensed to practice law." Patients must request permission to
place a privileged telephone call using the MSOP Patient Request Form. Staff
members then facilitate and verify privileged telephone calls. MSOP policy limits
such calls to 30 minutes, unless prior authorization is granted for a longer telephone
call. BTU patients can make requests to their primary therapists to place a legal call.
The legal therapist may grant the requests after verifying that the call is a legal call.
Staff members attempt to arrange a legal call as soon as possible, which is usually the
same day as the request or early the next day, depending on the availability of staff
and when the request was received.

       The MSOP has no specific written policy as to how soon a patient must be
permitted to return a legal call; instead, patients return calls in a reasonable amount
of time. This allows staff to verify that the number is to a patient's attorney. The
period is usually one to two days, but on occasion the call has been returned on the
same day or up to five days after the incoming call. When assessing when a patient
can make a legal call, staff members consider the urgency of the call, such as if there
is a pending court deadline. According to the MSOP, delays result from the staff
receiving requests while they are dealing with other duties; the availability of the
attorneys; the number of other patient requests pending; or other circumstances, such
as a lockdown or telephone issues.



                                          -31-
      The MSOP put in place the 30-minute call rule because patients share the
phone, have a limited time available for phone use because of the other activities, and
generally do not need more time.

       The Patients argue that the district court erred in finding that the telephone
policy is constitutional. They contend that the current policy is actually an
exaggerated response to rehabilitation and security concerns with obvious
alternatives. They argue that the general ban on incoming calls, the monitoring of
outgoing calls, and the limits on the length of legal calls is unreasonable. They also
assert that the staff does not consistently facilitate privileged calls in a timely fashion
and that the policy does not require the staff to facilitate calls within a certain time;
for example, Beaulieu's requests have been repeatedly delayed by five days or more,
and one of DeLaney's requests for an attorney call was delayed for three weeks. The
Patients maintain that the DHS officials have not identified a security interest that
outweighs the need for timely, attorney-client communications.

       "Any form of involuntary confinement, whether incarceration or involuntary
commitment, may necessitate restrictions on the right to free speech." Martyr v.
Bachik, 755 F. Supp. 325, 328 (D. Or. 1991) (emphasis added) (citing Jones v. N.C.
Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977)). In the prison context, we
have concluded that "the extent of inmates' First Amendment right to communicate
with the outside world is a fact-intensive universe." Holloway v. Magness, 666 F.3d
1076, 1079 (8th Cir. 2012). "A prisoner has no right to unlimited phone use." Benzel
v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989). This means that "[a]lthough
prisoners have a constitutional right of meaningful access to the courts, prisoners do
not have a right to any particular means of access, including unlimited telephone use."
Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992).

      "[I]f the government chooses to create a public forum for speech, whether a
general or a limited public forum, it may not unreasonably restrict the public's use of

                                           -32-
that forum." Holloway, 666 F.3d at 1079. However, this "principle does not include
a mandate to create any particular type of public forum, such as providing inmates
with telephone service." Id. (second emphasis added).

       "Because the Constitution 'permits greater restriction of [First Amendment]
rights in a prison than it would allow elsewhere,' restrictive prison regulations are
normally reviewed under the four-factor Turner test to determine whether they are
'reasonably related to legitimate penological interests.'" Id. at 1080 (citing Turner v.
Safley, 482 U.S. 78 (1987)). Here, both parties agree that the Turner test applies. We
consider four criteria in applying this test:

      (1) whether there is a valid, rational connection between the regulation
      and legitimate governmental interests put forward to justify it; (2)
      whether alternative means of exercising their rights remain open to the
      prisoners; (3) whether accommodation of the asserted rights will trigger
      a "ripple effect" on fellow inmates and prison officials; and (4) whether
      a ready alternative to the regulation would fully accommodate the
      prisoners' rights at de minimis cost to the valid penological interest.

Benzel, 869 F.2d at 1108.

       With regard to the second Turner factor, "the issue is . . . whether inmates have
alternative means of exercising the constitutional right they seek to assert." Holloway,
666 F.3d at 1080 (quotation and citation omitted). "Alternatives to the type or amount
of speech at issue need 'not be ideal . . . they need only be available.'" Id. (alteration
in original) (quoting Overton v. Bazzetta, 539 U.S. 126, 135 (2003)). For example,
in rejecting an inmate's claim that elevated phone charges that the inmate must pay
resulting from the prison's contract with a private telephone service provider violated
the inmate's First Amendment free speech rights, we noted that "the record makes
clear that ADC inmates retain many alternative means of communicating with family
members and friends in the outside world—personal visits and mail as well as use of

                                          -33-
the . . . telephone service." Id. at 1080–81; see also Benzel, 869 F.2d at 1109 ("The
policy at issue only limits inmates' right to communicate by telephone, not their mail
or visiting privileges.").

       Applying the Turner factors, we hold that the MSOP telephone policy does not
violate the Patients' constitutional rights."First, monitoring [non-legal] telephone calls
and prohibiting incoming calls12 is reasonably related to [the] MSOP's security
interests in detecting and preventing crimes and maintaining a safe environment."
Semler, 2010 WL 145275, at *16. Mooney testified that the MSOP began monitoring
patient phone calls after patients escaped from the St. Peter facility, and the MSOP
"learned that much of the support for the escape was conducted over the phone."
According to Mooney, the MSOP "had a lot of suspicious activity13 on the part of the


      12
       As explained supra, although the MSOP prohibits incoming calls, patients
have access to a voicemail system that permits individuals outside of the facility to
leave messages, subject to the MSOP recording and monitoring those messages.
      13
         Dennis Smith, an MSOP special investigator, averred that "[s]ince the
telephone system has been operational, Program staff members have been able to
detect counter-therapeutic and potentially illegal activities by patients." Smith stated
that, "in December 2005, Program staff members discovered that a patient was
making over 100 sexual calls to a female vulnerable adult." And "[i]n November
2005, a patient made telephone calls to a female who was planning to smuggle
hacksaw blades into the facility. Program staff members were able to discover this
plan by monitoring the patient's calls and were able to prevent the crime." On one
occasion, staff members learned "that another patient made approximately 800
telephone calls in a three[-]month period for the purpose of attempting to smuggle
drugs and contraband into the facility for use and sale to other patients. This patient
also discussed escape plans." Similarly, "[m]onitoring of another phone call
developed information on another patient attempting to get someone on the outside
to smuggle narcotics to him." Staff members also discovered through the monitoring
of a patient's phone calls that the "patient was grooming a seventeen-year-old girl and
trying to convince her to send photographs of herself wearing sexy, revealing
clothing." As a result of these discoveries, Smith concluded that "the new telephone

                                          -34-
patients occurring on the phones, and they were taking advantage of the fact that the
phones weren't monitored."

       For example, DHS Office of Special Investigators (OSI) Director Ralph
Schmidt averred that his office "discovered [Beaulieu's] alleged criminal activity
through monitored telephone conversations between Beaulieu and a former staff
member." "Beaulieu [had] formed an inappropriate relationship with a former
Program security counselor . . . ." This resulted in the counselor resigning from her
position. After the counselor's resignation, Beaulieu and the counselor "conversed by
telephone 508 times" over approximately a three-month period. "Through monitoring
these conversations, OSI staff members discovered that Beaulieu and [the former
counselor] were planning a conspiracy to smuggle controlled substances into the
Program." They planned to conceal the drugs in a pair of sandals in a package
addressed to Beaulieu. When the package arrived, OSI staff members "searched the
package and found seven small clear glassine zip lock baggies containing cocaine and
marijuana inside the hollowed-out soles of a pair of sandals just as Beaulieu and [the
counselor] had conspired in their telephone conversations." Beaulieu was arrested and
charged with "bringing contraband into a state hospital facility."

       As for the MSOP's "rationale for limiting the length of legal calls," Mooney
justified the call duration limit based on the fact that

      [t]he phone had to be shared [with other patients], and there's limited
      time with other evolutions that patients had within the facility; meals,
      recreation, work assignments, clinical groups, and the normal activities
      of the day[;] and it was generally understood and accepted that 30


system has helped Program staff members detect and deter criminal activities by
patients." Moreover, he said that the MSOP "is able to use its resources more
effectively in preventing and protecting other patients and the public from criminal
and counter-therapeutic behaviors."

                                        -35-
       minutes was usually more than sufficient time to consult with their legal
       advisors, and if more time was needed, the attorneys could always
       contact staff and ask for more time.

We conclude, like the district court, that "[i]n light of limited staff resources, this
interest is reasonabl[y] related to a legitimate governmental interest of providing
phone access to all patients."14

       Second, the Patients "have viable alternatives by which they may exercise their
First Amendment rights. They are not prevented from having visitors or sending or
receiving permitted mail and they may use the telephone pursuant to [the] MSOP's
policy." Semler, 2010 WL 145275, at *16. Smith averred that "[p]atients are able to
send and receive mail as an alternate form of communication, if they choose not to
use the telephone to communicate with their attorneys or any other persons." He also
stated that "[p]atients are allowed to have visitors, with some restrictions that include
specific visiting hours, length of visit[,] and limited physical contact." These
restrictions "are necessary to maintain security in the facility and allow for more
effective administration of the Program."

       Third, permitting unrestricted telephone access would greatly impact the
MSOP's resources. As the DHS officials point out, "[w]ithout monitoring, patients
would be able to perpetrate crimes, obtain contraband, or engage in counter-
therapeutic behaviors for longer periods of time without detection, if at all." And, as
the district court noted, "allowing unmonitored calls or unlimited time on the phone
affects both the security of other patients and staff, as well as the opportunities for all
patients to make calls due to the monopolization of the telephone by a few patients."




      14
           The Patients have not challenged the length limitations for non-legal calls.

                                           -36-
       Fourth, no reasonable alternatives exist in light of the evidence presented. The
DHS officials' testimony establishes that the patients abused telephone privileges
prior to the implementation of the present policy by engaging in criminal activity or
other counter-therapeutic behavior via the phones.

       As to the Patients' claim that the phone policy unlawfully interferes with their
right to communicate with counsel, we conclude that such claim is without merit.
Pursuant to MSOP policy, patients may request additional time for legal calls that
exceeds the 30-minute time limit. Moreover, as explained supra, patients have
alternatives through which they may contact their counsel—mail and visits.
"[L]imited access to telephone calls . . . is not a constitutional violation so long as
[the patients] can communicate with their counsel in writing or in person by visits."
Ingalls v. Florio, 968 F. Supp. 193, 204 (D.N.J. 1997) (citing, inter alia, Aswegan,
981 F.2d at 313).

                     H. Double-bunking, Showers, and Toilets
      Several of the Patients in the present case had roommates while housed at the
Annex. The Annex rooms had no toilets. The MSOP imposed a curfew for Annex
patients from approximately 9:40 p.m. to 6:15 a.m. However, there were no locks on
the rooms.

        According to Considine, the reason for double-occupancy at the Annex was
that the MSOP "had more patients than rooms." The patient "population [at the
Annex] grew, and [the MSOP] had to find a way to get the population to fit in the
space [it] had." Considine stated that the MSOP "tried [its] best to put people together
that were compatible. [It] tried to look at [the patients'] request[s] for who they
wanted to be roommates with and allow them to be roommates with who they
wanted." Although satisfying these requests was not always possible, the MSOP "did
[its] best to make it happen so that people would get along and [the MSOP] wouldn't
have the issues."

                                         -37-
      The Annex had communal bathrooms and toilets in enclosed stalls into which
no one could see. Staff would make periodic checks of the bathrooms. If a staff
member noticed that a patient had been in the bathroom for a long period of time,
then the staff member would check the bathroom, announcing his or her presence
before entering.

      Beaulieu filed a grievance regarding an incident in which a staff member
approached him while he was in the bathroom stall and teased him for taking so long
with his bowel movement. But Beaulieu testified that no staff member has ever
looked in on him while he was in the bathroom stall.

      The Annex contained a communal shower room with a number of stalls that
were four-by-four feet with curtains in front that were not transparent. The shower
room had a door with a window, which was covered by a curtain on the outside of the
door.

       In Complex 1, all cells were designed to be used as double-occupancy rooms.
The rooms are 80 to 85 square feet. The patients are locked in their rooms at night
from 9:45 p.m. to 6:15 a.m. All rooms have toilets, which initially were not enclosed.
During the second week of September 2009, patients received privacy screens that
they could place around the toilets. In addition to the toilets in the patients' rooms,
each living unit in Complex 1 has a bathroom with a toilet, sink, and a door that shuts.

        The shower stalls in Complex 1 initially had doors that covered the torso area.
DeLaney testified that "if anybody was on the second floor looking down, they could
look right into the showers, and vice versa; if you're in the upper showers and
somebody looks up, they could look right in on you." Similarly, Bush testified that
"[i]f somebody was walking down at the bottom, they could see that you were in the
shower." According to Bush, other patients "could almost see halfway up. If they are
standing down below, they could see up, or if you're down on the bottom, they

                                         -38-
. . . probably couldn't see that much." Bush stated that an individual "would have to
go to the bottom of the door and look up" in order "[t]o see any of [a patient's] genital
areas." The MSOP replaced these shorter shower doors with longer doors.

                                  a. Double Bunking
      The Patients assert that the MSOP's double-bunking requirement at the Annex
in rooms not intended for two persons, and the continued double bunking of patients
in Complex 1, violates their due process right to privacy. According to the Patients,
they "are locked in these small rooms for eight to nine hours a day causing regular
invasions of personal privacy."

      The Patients "challeng[e] [the] MSOP's practice of double[]bunking, a practice
held constitutional by the Supreme Court in Bell [, 441 U.S. at 538–41,] and Rhodes
[v. Chapman, 452 U.S. 337 (1981),] and by [this court] in Cody [v. Hillard, 830 F.2d
912, 916 (8th Cir. 1987)]." Aune v. Ludeman, Civil No. 09–0015 (JNE/SRN), 2010
WL 145276, at *6 (D. Minn. Jan. 8, 2010).

      Those decisions hold that requiring two inmates or detainees to share a
      room does not constitute cruel and unusual punishment. While Rhodes
      and Cody reached that conclusion under the Eighth Amendment, the
      Court in Bell also held that there was no due process violation in
      confining inmates in a room originally meant for single occupancy.

Id.

       The Patients have presented "no evidence that the double-bunking practice
utilized by the MSOP is punitive." Id. Instead, the MSOP had a legitimate reason for
double bunking at the Annex—the patient population had grown so large that there
was insufficient room to allow for single occupancy. And, the rooms in Complex 1
were designed for double occupancy. Furthermore, the MSOP attempted to honor the
patients' roommate requests and put compatible people together. See id. ("Moreover,

                                          -39-
as in Cody, the administration at [the] MSOP has taken steps to reduce the negative
impact of double[]bunking by taking care in the assignment of roommates."). Greg
Carlson testified that the MSOP's placement committee conducted "a very thorough
review of each placement." Carlson also explained that the MSOP conducted
"wellness checks" "every hour" "to avoid inappropriate behavior" in the rooms. He
also confirmed that the MSOP may conduct "an assessment. . . to determine whether
or not double bunking might be counter[-]therapeutic for particular patients" and that
there are "times when a decision has been made to not double bunk a particular
patient."

                               b. Showers and Toilets
       The Patients also assert that the showers in Complex 1 did not adequately
protect their privacy because other patients on different floors could look into the
showers. They maintain that the remedial measures that the MSOP took failed to
remedy the past deprivations of their privacy. Also, they argue that "Beaulieu was
subjected to a particularly offensive invasion of his privacy" when a staff member
"approached him while he was using the bathroom and mocked him for taking so long
for his bowel movement."

       Here, the Patients' privacy claim fails. "Because the need to watch
[involuntarily-committed patients] closely is a legitimate institutional concern, a
[patient] is entitled to little if any privacy, even when using the bathroom or taking
a shower." Sanders v. Kingston, 53 F. App'x 781, 784 (7th Cir. 2002) (unpublished
per curiam); see also Spencer v. Bender, Civil Action No. 08-11528-RGS, 2010 WL
1740957, at *3 (D. Mass. Apr. 28, 2010) (unpublished) (dismissing a privacy claim
because "[a]n inmate's lack of privacy while using the toilet or shower also does not
violate the Eighth or Fourth amendments"). Furthermore, even when the shower stalls
in Complex 1 had doors that only covered the torso area, no evidence exists that other
patients or staff could see showering patients' genitals or buttocks. In fact, Bush
stated that an individual "would have to go to the bottom of the door and look up" in

                                        -40-
order "[t]o see any of [a patient's] genital areas." And, the MSOP has since replaced
the shorter doors with longer doors that prevent people from seeing a person in the
shower.

      Like the district court, we "also find[] no cognizable privacy claim on behalf
of Beaulieu because a staff member teased him about taking too long in the
bathroom." Beaulieu testified that no staff member has ever looked in on him while
he was in the bathroom stall. And, MSOP policy required staff members to check the
bathroom when they noticed that a patient had been in the bathroom for a substantial
period of time; staff also had to make periodic checks of the bathroom, but they
announced their presence before entering.

                                  I. Sanitation Claims
        The Annex living units had more than one shared communal bathroom.
Initially, the Annex had one daily, regularly-scheduled bathroom and shower
cleaning. Within a few weeks of the Annex's opening, the Annex had two daily
regularly-scheduled bathroom and shower cleanings, and the MSOP offered patients
overtime to clean in between the regular cleanings. Hattenberg testified that the
patients would clean the bathrooms, including mopping the floor and sanitizing all
surfaces. As part of a work-for-pay job, patients were responsible for cleaning the
communal bathrooms. But some patients responsible for cleaning the bathrooms
failed to do so. In any event, the MSOP made cleaning supplies available to patients
to the extent that they wanted to clean any part of the bathrooms. If the mess was
"horrendous," the MSOP would offer the clean-up job to patients for overtime pay.

       Patients at the Annex sometimes intentionally urinated or defecated on the
floor. The MSOP's response was to have (1) the patient who made the mess clean it
up, (2) work-for-pay patients clean it up with staff supervision, or (3) the general staff
clean it up, if paid patients were unavailable. The affected area was off limits to



                                          -41-
patients until the mess was cleaned. But patients could use another bathroom until the
soiled one was cleaned.

       Beaulieu testified that there were times that he reported a mess in the bathroom
to the staff, and the staff cleaned the mess. But he also stated that at other times the
staff waited until the paid patients' scheduled time to clean the bathroom, so that those
patients could clean the mess. Beaulieu stated that he once saw a patient clean up
urine in the bathroom with a mop and then use that same mop to clean the rest of the
bathroom.

       The MSOP does not train patients on how to clean, but it provides the patients
with a sheet outlining their duties, including on how to deal with biohazards.
Beaulieu knew that if a mop was used to clean a biohazard, then that mop should be
placed in a biohazard bag for cleaning; then, the affected area should be sanitized
with another chemical. Bush also stated that a mop used to clean a biohazard should
be washed before reuse. DeLaney testified that all sorts of chemicals were used in the
rags to clean the facilities. Yazzie stated that some patients simply rinsed used mops
when new mops were not available; however, he never witnessed a patient doing so.

       According to Bush, if someone soiled the showers, patients could not enter the
bathroom until the mess was cleaned up. He testified that, in those instances, he
would use the shower facilities in the west part of the facility. Additionally, he stated
that sometimes the clean-up was slow; eventually, either another patient would clean
the mess or staff would clean it.

      There is no MSOP record of any patients becoming sick because of bodily
wastes in the toilets or showers. Beaulieu stated that he contracted Norovirus while
housed in the BTU, but there is no explanation of how the virus was spread.




                                          -42-
       According to Beaulieu, the MSOP made cleaning equipment available to
patients to clean the dining tables, if they so desired. Bush testified that the tables
were sanitized after every meal. And, Gimmestad testified that, as part of the kitchen
crew, his job was to sanitize the tables before and after every meal. But, on January
19, 2009, Beaulieu sent a Patient Request Form asking staff to address the issue of
feces being dropped in the dining area during mealtime and not being cleaned before
the meal. MSOP's response was that "staff members picked up and washed areas
when staff [are] available to do so."

      The Patients assert that they presented adequate evidence showing the
unsanitary conditions posed a substantial risk of harm and that the DHS officials
knew of and disregarded their health and safety. They argue that the DHS officials'
actions constitute deliberate indifference and that they have the right under the
Fourteenth Amendment not to be exposed to unsanitary conditions. In support of their
argument, they cite testimony that "the showers and bathroom floors in the Annex
were frequently soiled with feces and bodily fluids." They contend that a genuine
issue of material fact exists as to how fast these health hazards were addressed.
According to the Patients, in contrast to Mooney's testimony that the messes "would
be cleaned up and immediately attended to," staff would leave the unsanitary
condition until the next scheduled clean-up. They argue that the DHS officials "were
aware of the problem[,] and it is obvious that exposing residents to feces, semen, and
blood creates a medical hazard."

       "[I]nmates are entitled to reasonably adequate sanitation, personal hygiene, and
laundry privileges, particularly over a lengthy course of time." Howard v. Adkison,
887 F.2d 134, 137 (8th Cir. 1989). Under the Fourteenth Amendment,
civilly-committed persons, like "pretrial detainees[,] are entitled to at least as great
protection as that afforded convicted prisoners under the Eighth Amendment." Crow
v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005) (quotations and citations omitted).
As a result, "we apply the identical deliberate-indifference standard as that applied

                                         -43-
to conditions-of-confinement claims made by convicts." Id. "In order to establish a
constitutional violation, [the plaintiffs] must show: (1) that [the conditions of their
confinement] posed a substantial risk of serious harm (objective component), and (2)
the [DHS defendants] actually knew of but disregarded, or were deliberately
indifferent to, [the plaintiffs'] health or safety (subjective component)." Id. at 602.

       "Conditions, such as a filthy cell, may be tolerable for a few days and
intolerably cruel for weeks or months." Whitnack v. Douglas Cnty., 16 F.3d 954, 958
(8th Cir. 1994) (quotations and citations omitted); see also Smith v. Copeland, 87
F.3d 265, 268–69 (8th Cir. 1996) (holding that, where plaintiff was subjected to an
"overflowed toilet in his cell for four days," such "allegations regarding 'raw sewage'
d[id] not rise to a level of constitutional significance" because plaintiff "did not allege
that he was exposed to disease or suffered any other consequences of the exposure"
and was "offered an opportunity to flush the toilet and to clean up the mess but he
declined"); White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (holding no Eighth
Amendment violation where prisoner was confined to unsanitary cell for 11 days and
noting that cleaning supplies were available to the prisoner).

       Although "reasonably adequate sanitation" is a civilly-committed patient's
"basic identifiable human need[]," Whitnack, 16 F.3d at 958, we find no evidence in
the record that the DHS officials were deliberately indifferent to the Patients' health
or safety. The Patients have produced no evidence as to the length of time that they
were exposed to the unsanitary conditions in the bathroom and dining room. There
is no dispute that the MSOP had the bathrooms cleaned at least daily. This daily
cleaning indicates that the patients' exposure to the unsanitary conditions would not
have exceeded 24 hours, too short a time to constitute a due process violation. See
Smith, 87 F.3d at 269 ("[T]he length of time a prisoner is subjected to harsh
conditions is a critical factor in our analysis."). Additionally, the record demonstrates
that the MSOP made cleaning supplies available to the patients to clean up any soiled
areas. See White, 7 F.3d at 121 ("If White had complained about the conditions of the

                                           -44-
cell, he would have been provided with cleaning material in order to correct the
alleged unsanitary conditions.").15

                            J. Access to Legal Computers
       The MSOP provided patients with access to computers for legal research or to
create legal documents. Mooney testified that patients had access to these "legal
computers," provided that the patients signed up to use them and that "fair sharing"
occurred among the patients. According to Greg Carlson, to access a legal computer,
a patient must "sign up on a sheet reserving a specific period of time, and then they
have access to it." If a patient "signed up that day [to use the computer, then that
patient] could use it that day or the next day."

       In Complex 1 and the main building of the Moose Lake Facility, patients have
access to a legal computer lab, which they may sign up to use. The legal computer lab
is located in the main building. The Annex had its own legal computer labs, one in
Building 8 and one in Building 10, which patients could sign up to use. A patient's
administrative-restriction status did not limit access to the legal computers unless
"they were out of behavioral control." If a patient was out of behavioral control, that
patient "would have to demonstrate controlled behavior" before the MSOP would
permit that patient to use the legal computer lab.

         In the BTU, staff sets up a legal computer in the team room each night from
6:00 p.m. to 8:00 p.m for patients to use in half-hour increments. More time is
available upon request. According to Ninneman, BTU Group Supervisor, when a
patient puts in a request to use the legal computer, he attempts to "answer requests
. . . in a timely manner"—usually five working days after the initial request.

      15
         On appeal, the Patients have not challenged the district court's determination
that they waived their sanitation claim against the DOC officials by failing to respond
to the DOC officials' argument that the DOC was not involved with the cleaning
procedures or protocols implemented at the Annex.

                                         -45-
       The Patients assert that "Beaulieu was repeatedly deprived of access to the
legal computer without due process," as "[h]is requests were simply denied." He
contends that the denials of his requests to access the computer "created hardship
because he was representing himself in several legal matters and needed access to the
computer." He argues that the district court erroneously found "that Beaulieu has
failed to cite a protectable liberty interest where the evidence shows that Beaulieu's
constitutional right to access to the courts was affected by the hardship."

             In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72
      (1977), [the Supreme Court] held that "the fundamental constitutional
      right of access to the courts requires prison authorities to assist inmates
      in the preparation and filing of meaningful legal papers by providing
      prisoners with adequate law libraries or adequate assistance from
      persons trained in the law."

Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds, 430 U.S. at 828). In
Lewis, the Court held that "in order to establish a violation of Bounds, an inmate must
show. . . 'actual injury.'" Id. at 348. The Court explained that

      [b]ecause Bounds did not create an abstract, freestanding right to a law
      library or legal assistance, an inmate cannot establish relevant actual
      injury simply by establishing that his prison's law library or legal
      assistance program is subpar in some theoretical sense. That would be
      the precise analog of the healthy inmate claiming constitutional
      violation because of the inadequacy of the prison infirmary. Insofar as
      the right vindicated by Bounds is concerned, "meaningful access to the
      courts is the touchstone," id., at 823, 97 S.Ct., at 1495 (internal
      quotation marks omitted), and the inmate therefore must go one step
      further and demonstrate that the alleged shortcomings in the library or
      legal assistance program hindered his efforts to pursue a legal claim. He
      might show, for example, that a complaint he prepared was dismissed
      for failure to satisfy some technical requirement which, because of
      deficiencies in the prison's legal assistance facilities, he could not have
      known. Or that he had suffered arguably actionable harm that he wished

                                         -46-
      to bring before the courts, but was so stymied by inadequacies of the law
      library that he was unable even to file a complaint.

Id. at 351. "In other words, the inmate must show that the alleged deprivations
actually hindered his efforts to pursue a legal claim." Semler, 2010 WL 145275, at
*13.

      Here, although Beaulieu missed a court deadline, the court gave him an
extension of time; therefore, he has not proven an "actual injury" resulting from his
purported denial of access to the legal computers.

       Moreover, we agree with the district court that "Beaulieu has not identified any
property or liberty interest implicated by defendants' refusal to give him access to a
legal computer." "A due process claim is cognizable only if there is a recognized
liberty or property interest at stake." Ragan v. Lynch, 113 F.3d 875, 876 (8th Cir.
1997). "We need reach the question of what process is due only if the inmates
establish a constitutionally protected liberty interest . . . ." Wilkinson v. Austin, 545
U.S. 209, 221 (2005). Because Beaulieu has not identified what liberty or property
interest the DHS officials deprived him of, any procedural due process claim
necessarily fails.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                          -47-
