     Case: 11-40055     Document: 00511639963         Page: 1     Date Filed: 10/21/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 21, 2011
                                     No. 11-40055
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARVIN WADDLETON, III,

                                                  Plaintiff-Appellant

v.

NORRIS JACKSON; A. AMBRIZ; D. KEMPT; V L. BRISHER; BARBARA
TREVINO,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CV-267


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Marvin Waddleton, III, Texas prisoner # 1355746 and # 14729, seeks to
appeal the dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that
he was subjected to strip and visual body cavity searches in the presence of
female prison employees in violation of the Fourth, Fifth, Eighth, and
Fourteenth Amendments.            The district court dismissed the complaint as
frivolous and for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-40055

and 1915A(b)(1). Accordingly, our review is de novo. See Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005).
      Waddleton’s allegations regarding the search of his person did not state
a claim for relief under the Eighth Amendment. See Moore v. Carwell, 168 F.3d
234, 237 (5th Cir. 1999). In this circuit, such claims are properly considered
under the Fourth Amendment. Id. Waddleton has not alleged sufficient facts
to show that the search orders or the searches themselves imposed hardships
atypical of ordinary prison life. Nor has he pointed to any specific prison
regulation allowing unannounced searches that would constitute punishment.
Thus, no due process protections were triggered here. See Sandin v. Conner, 515
U.S. 472, 483-86 (1995); Bell v. Wolfish, 441 U.S. 520, 560-61 (1979). We do not
consider Waddleton’s claim, raised for the first time on appeal, that the searches
violated the First Amendment right to freedom of religion. See Shanks v.
AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999); Burch v. Coca-Cola Co.,
119 F.3d 305,319 (5th Cir. 1997). We affirm the district court’s dismissal of
these claims.
      We turn now to Waddleton’s Fourth Amendment claims that the searches
here were unreasonable because they were conducted in the absence of any
penological justification. Under the Fourth Amendment, “searches or seizures
conducted on prisoners must be reasonable under all the facts and circumstances
in which they are performed.” Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir.
1994) (internal quotation and citation omitted). Although the burden on prison
officials to show that an allegedly unconstitutional search was reasonable is a
light one, it is a burden they must nevertheless bear in light of Waddleton’s
assertions that there was no legitimate penological need for the searches here.
See Elliott, 38 F.3d at 191. In analyzing the reasonableness of the searches, the
district court was required to balance the need for the searches against the
invasion of personal rights that the searches entailed by considering the scope
of the intrusions, the manner in which they were conducted, the justification for

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                                 No. 11-40055

them, and the places in which they were conducted.          See Watt v. City of
Richardson Police Dep’t, 849 F.2d 195, 196-97 (5th Cir. 1988).        Accepting
Waddleton’s allegations as true, which we must, see Ashcroft v. Iqbal, 129 S Ct.
1937, 1949 (2009), there was no justification, penological or otherwise, for the
searches conducted in this case. Dismissal for failure to state a claim was
premature and thus inappropriate because the facts Waddleton alleges could
entitle him to relief for a Fourth Amendment violation. See Moore, 168 F.3d at
236-37. Accordingly, we affirm in part and vacate and remand in part to the
trial court for further proceedings consistent with this opinion.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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