                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2006

Brown v. Blaine
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4618




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Brown v. Blaine" (2006). 2006 Decisions. Paper 889.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/889


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                       NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              NO. 04-4618
                           ________________

                          ALTON D. BROWN,
                                   Appellant

                                       v.

                  CONNER BLAINE, JR., Superintendent;
                     RICHARD ROACH, Captain;
               LIEUTENANT KOSTINGO, Lieutenant (Max);
                     P. WALKER, Sergeant (Max);
             JEFFREY BEARD; SGT. GRANDAN; LT. MAYLE

                ____________________________________

              On Appeal From the United States District Court
                 For the Western District of Pennsylvania
                        (D.C. Civ. No. 01-cv-02047)
                District Judge: Honorable Gary L. Lancaster
              _______________________________________


                Submitted Under Third Circuit LAR 34.1(a)
                             May 10, 2006

  Before: SCIRICA, CHIEF JUDGE, BARRY AND COWEN, CIRCUIT JUDGES

                          (Filed: June 16, 2006)


                       _______________________

                              OPINION
                       _______________________

PER CURIAM
       Appellant Alton Brown, a Pennsylvania prisoner proceeding pro se, appeals

several orders of the United States District Court for the Western District of Pennsylvania

related to the grant of summary judgment to defendants on his civil rights complaint. As

explained herein, we will affirm the judgment of the District Court.

       Brown filed a civil rights complaint alleging that prison officials and officers at the

State Correctional Institution at Greene, Pennsylvania (“SCI-Greene”) violated his

constitutional rights when they strip searched him on October 21, 1999, March 21, 2001,

and April 6, 2001. Specifically, Brown alleges that the strip searches were unsanitary

because he was required to sweep his mouth with his finger after he had been directed to

touch his genitals, that the searches were conducted in such a manner merely to embarrass

and humiliate him, and that he was verbally harassed during each search. Brown further

claims that he was strip searched in retaliation for having filed numerous grievances and

civil rights complaints against prison personnel. Brown explicitly states that he does not

challenge the need to conduct strip searches of prisoners entering the Restricted Housing

Unit (“RHU”) at SCI-Greene.

       The District Court sua sponte dismissed the complaint for failure to state a claim

because Brown had not alleged that he had suffered any physical injury as a result of the

searches. This Court affirmed the dismissal insofar as Brown sought compensatory

damages and vacated the dismissal to the extent that Brown sought declaratory and

injunctive relief. See C.A. No. 01-4476. Brown then filed an amended complaint

containing the allegations outlined above. On September 20, 2004, the District Court

                                              2
dismissed the complaint as to defendant Conner Blaine for failure to prosecute because

Brown had failed to provide the U.S. Marshals with an address at which Blaine could be

served with process. The remaining defendants then filed a motion for summary

judgment, which the District Court granted on December 2, 2004.

       Brown timely appealed, contesting the District Court’s dismissal of his first

amended complaint and his complaint against Blaine, its denial of his motion for

“continuance of summary judgment”, and its grant of summary judgment in favor of the

remaining defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291.

       Brown first contests the District Court’s order dismissing his first amended

complaint. Following this Court’s remand of the underlying action to the District Court,

Brown requested an extension of time in which to file an amended complaint. The

District Court granted his request on August 1, 2003, instructing Brown to limit his

amended complaint to “the issues previously raised in this litigation.” Brown then filed

an amended complaint containing allegations against staff at the State Correctional

Institution at Pittsburgh, Pa. (“SCI-Pittsburgh”), to which Brown had been transferred.

These allegations related to strip searches conducted at SCI-Pittsburgh in 2003, well after

the lawsuit was initiated in October 2001. The Court dismissed this complaint as outside

the scope of its order allowing him to amend and cautioned Brown not to attempt to use

the amendment process to circumvent the three strikes rule.1 Brown maintains that the


   1
       Brown has three strikes. See Brown v. Brierton, Civ. No. 91-cv-00471 (M.D. Fla.
1991); Brown v. Brierton, C.A. No. 92-2030 (11th Cir. 1992); Brown v. Federal

                                             3
District Court’s action was contrary to the Federal Rules of Civil Procedure, which permit

amendment once as a matter of course prior to the filing of an answer.2

       We will affirm the District Court’s order dismissing Brown’s first amended

complaint. Allowing Brown to allege unrelated claims against new defendants based on

actions taken after the filing of the original complaint would defeat the purpose of the

three strikes provision of the PLRA. See 28 U.S.C. § 1915(g); see also Scott v. Kelly,

107 F. Supp. 2d 706, 711 (E.D. Va. 2000). Brown remains free to initiate a new lawsuit

against these defendants for the actions complained of in his first amended complaint.

       With respect to his motion for summary judgment, Brown argues that he was

subjected to strip searches on three separate occasions while entering the RHU at SCI-

Greene. According to Brown, on each occasion, he was required to lift his penis and

testicles, spread his buttocks, and then place his hands on his head and “sweep” his mouth

with his fingers. During two of the three searches, Brown maintains that he was also

required to stand on one foot while wiggling the toes on the other foot. Brown argues that

this manner of search was unsanitary, demeaning, humiliating, and in violation of his




Laboratories, Inc., Civ. No. 89-cv-00507 (M.D. Fla. 1989). We determined that he had
not shown imminent danger at the time he filed this appeal, and thus, we declined to grant
his motion to proceed in forma pauperis. See May 26, 2005 Order. Brown then paid the
fees for this appeal.
   2
       Brown also argues that the Magistrate Judge exceeded his authority in dismissing
the amended complaint. However, we agree with the District Court that this was a non-
dispositive order and therefore was properly ruled on by the Magistrate Judge pursuant to
Federal Rule of Civil Procedure 72(a).

                                             4
Fourth and Eighth Amendment rights, and that it was done solely for the purpose of

retaliating against him for filing grievances and lawsuits against prison personnel in

violation of his First Amendment rights.

       The District Court reviewed the amended complaint, the verification of Wallace

Leggett, a Lieutenant assigned to the RHU at SCI-Greene, videotapes of the October 21,

1999 and March 21, 2001 searches,3 and part of the transcript of Brown’s deposition.

Based on these submissions, the Court concluded that the searches were conducted within

the ambit of sound prison administrative policy, that Brown was not subjected to any

offensive touching by any of the prison guards, and, therefore, that none of Brown’s

constitutional rights were violated by the searches.

       We agree with the District Court. The Supreme Court has held that visual body

cavity searches may be conducted by prison officials without probable cause, but that

they must be conducted in a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 559-60

(1979). The Court urged the lower courts to consider various factors in assessing the

reasonableness of a challenged search, among them “the scope of the particular intrusion,

the manner in which it is conducted, the justification for initiating it, and the place in

which it is conducted.” Id. at 559. As noted by the Ninth Circuit, in reaching this

decision the Supreme Court “obviously recognized that not all strip search procedures


   3
        In his verification, Leggett stated that he was unable to locate the videotape from
the third search, which took place on April 6, 2001. However, in his deposition, Brown
testified that the same procedure was followed during that search as during the preceding
search.

                                               5
will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any

legitimate penological interest.” Michenfelder v. Summer, 860 F.2d 328, 332 (9th Cir.

1988). It the instant case, is undisputed that the searches complained of were conducted

upon re-entry into RHU, as is required by institutional policy, that they took place in a

private room, and that the officers did not place their hands on Brown at any time other

than during an initial pat-down.

       While Brown maintains that the searches were unsanitary, humiliating, and

demeaning, searches such as the ones at bar have been held to be constitutional time and

again. See, e.g., Del Raine v. Williford, 32 F.3d 1024, 1038-41 (7th Cir. 1994) (rejecting

claim that rectal probe performed in lobby area of prison hospital was “unnecessarily

brutal, painful, and humiliating”); Michenfelder, 860 F.2d at 332-34 (upholding policy of

conducting visual bodily cavity searches every time prisoner leaves or returns to

maximum security unit or moves within unit); Goff v. Nix, 803 F.2d 358, 366-67 (8th Cir.

1986) (upholding prison policy of conducting visual bodily cavity searches as condition

of any movement outside prison).

       Here, Brown avers that he is not challenging the need for the search, but rather, the

manner in which it was conducted. In Thompson v. Souza, the Ninth Circuit held that a

visual strip search in which a prisoner was required to place his fingers in his mouth after

manipulating his genitalia was not unconstitutional despite the fact that prison regulations

suggested that genitalia should be visually searched as the last step in the search process.

111 F.3d 694, 700 (9th Cir. 1997). As the Court explained, “[a]lthough the Officials did

                                              6
not conduct his search exactly in accordance with the CML guidelines, they did not

employ ‘exaggerated or excessive means.’” Id. We agree with this analysis. While we

recognize that Brown may have suffered embarrassment and humiliation while the search

was being conducted, we cannot conclude that Brown’s constitutional rights were

violated by the search procedures employed by Appellees.

       Brown further claims that the searches were conducted in retaliation for his filing

of grievances and complaints against prison personnel. While the District Court did not

explicitly address this claim, we conclude that Brown has failed to demonstrate that his

protected activity was a substantial or motivating factor in the decisions to strip search

him. See Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001). In fact, as Brown admits,

each search took place upon his re-entry to RHU, as is dictated by institutional policy.

       Next, Brown maintains that he was never afforded an opportunity to view the

videotapes of the two searches during the course of discovery. He argues that it was

therefore error for the District Court to deny his motion for a continuance and grant

defendants’ motion for summary judgment before he had been given an opportunity to

review the tapes. Because, taking all of Brown’s allegations as true, and drawing all

favorable inferences from them, we conclude that Brown has not demonstrated that the

searches in question violated his constitutional rights, it was not error for the District

Court to move forward on defendants’ motion for summary judgment as it did.

       Finally, Brown avers that the District Court incorrectly dismissed his complaint

against Conner Blaine because Brown could not provide his address to the U.S. Marshals

                                               7
for service of process. Brown’s claims against Blaine were coextensive with those

against defendants Roach and Beard. Because we have determined that the District Court

properly granted summary judgment as to the remaining defendants, and because

Brown’s complaint against Blaine, had it gone forward, would have been subject to

summary judgment for the reasons articulated in the other defendants’ motion, Brown

could not prevail, as a matter of law, on his claims against Blaine.

       Accordingly, we will affirm the judgment of the District Court.




                                             8
