Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 273 (9th Cir. 1991)

Donald DYER, Plaintiff/Appellant,v.BINGHAM, MONTGOMERY, FLETCHER, and JONES, Defendants,andLawrence Kincheloe, Warden, Stanley M. Hanson, AssociateSuperintendent, Defendants/Appellees.

No. 90-35520.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1991.* Decided June 13, 1991.

Before EUGENE A. WRIGHT, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Donald Dyer appeals the district court's judgment in favor of prison authorities in his 42 U.S.C. § 1983 civil rights action. We affirm.

The district court held that Dyer's fourth amendment rights were not violated because reasonable suspicion existed for his placement on feces watch and the manner in which the procedure was conducted satisfied the standards of Bell v. Wolfish, 441 U.S. 520, 559 (1979), and Turner v. Safley, 482 U.S. 78, 89 (1987). We agree.

Reasonable suspicion exists when the person responsible for the search is aware of specific articulable facts, and inferences from those facts, which reasonably warrant a suspicion that evidence will be uncovered. Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 490 (9th Cir. 1986). The memorandum informing officials that Dyer was to receive drugs during his conjugal visit, coupled with prior intelligence identifying Dyer as a suspected "mule," established reasonable suspicion. That the informant knew Dyer was to have a conjugal visit justified reliance on the memorandum. See Alabama v. White, 110 S. Ct. 2412, 2416-17 (1990) (Terry stop).

The scope of the search satisfied the constitutional standards set forth in Bell v. Wolfish, 441 U.S. 520, 559 (1979), and Turner v. Safley, 482 U.S. 78, 89 (1987). The procedures used were reasonably related to the legitimate penological interest in ensuring that Dyer did not smuggle drugs into the institution.

The district court held that Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), precluded a section 1983 damages claim for the violation of the eighth amendment against Kincheloe and Hanson because there was no evidence that they "were acting in any capacity other than their official capacity in instituting and implementing the dry cell program with respect to Dyer." Although we find the holding erroneous, see Price v. Akaka, 928 F.2d 824, 828-29 (9th Cir. 1991) (as amended) (Will does not affect individual capacity suits), we are required to uphold the district court on any ground finding support in the record. See Fidelity Fin. Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1437 (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). Because the aspects of the feces watch which Dyer challenges satisfy the reasonable relation test set forth in Turner, dismissal was proper.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3