Unpublished Dispositionmichael C. Cassidy, Plaintiff-appellant, v. Michael Huey; Officer Barnhardt; Officer Walker; D.young, Officer; Sgt. Truitt; Lt. Townley; Capt.payne, Defendants-appellees, 875 F.2d 862 (6th Cir. 1989)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Michael C. Cassidy, a pro se Michigan state prisoner, appeals the dismissal of his civil rights complaint. Mr. Cassidy sued several Michigan Department of Corrections employees seeking declaratory and injunctive relief as well as compensatory and punitive damages, alleging that his constitutional rights had been violated during an incident in which he was strip searched and placed in restraints preparatory to being transferred to another prison. The district court granted defendants' motion to dismiss or for summary judgment over plaintiff's objections.

Upon consideration, we conclude that the district court's judgment must be affirmed in part, and vacated and remanded in part. The record does not establish an unreasonable search. See Bell v. Wolfish, 441 U.S. 520, 558-60 (1979). Moreover, because the fourth amendment provides an explicit textual source of constitutional protection against improper searches, that amendment, and not generalized notions emanating from the due process clause, must be the guide for analyzing plaintiff's claims in connection with the searches to which he was subjected. See Graham v. Connor, --- U.S. ----, 57 U.S.L.W. 4513, 4516 (May 16, 1989).

However, plaintiff's claim under the eighth amendment alleging excessive and painful restraints presents issues of material fact which preclude the entry of summary judgment. Accordingly, the district court's dismissal of plaintiff's fourth amendment and due process claims is hereby affirmed, and the dismissal of plaintiff's eighth amendment claim is hereby vacated, and the case remanded for further consideration. Rules 9(b) (5) and (6), Rules of the Sixth Circuit.