Full opinion text
O’SCANNLAIN, Circuit Judge: The Governor of Washington and officials of the Washington Corrections Center for Women (“WCCW”) appeal from the district court’s order enjoining them from implementing a policy that requires male guards to conduct random, non-emergency, suspicionless clothed body searches on female prisoners. The district court found that such policy violates the female prisoners’ First, Fourth, and Eighth Amendment rights. We vacate our earlier three-judge panel decision, Jordan v. Gardner, 953 F.2d 1137, reh’g en banc granted, 968 F.2d 984 (9th Cir.1992), which reversed the district court. Sitting en banc, we now affirm the district court on Eighth Amendment grounds and do not reach the inmates’ other constitutional claims. I The WCCW is an all-female prison which, in December of 1989, housed approximately 270 convicted felons. The inmates are classified at the minimum, medium, and maximum security levels. Since its opening in 1971, both male and female guards have staffed the institution. Before mid-1989, routine, suspicionless searches of inmates were performed only at fixed checkpoints by female guards. Male guards were permitted to search inmates only in emergency situations. In late 1988, members of the correctional staff filed a grievance against the same-gender search policy at the institution. The female guards were unhappy that their meal breaks, taken while they were still officially on duty, were occasionally interrupted to conduct searches at the fixed checkpoints. The Washington Department of Corrections (“DOC”) denied the first level grievance. In January 1989, Eldon Vail took over as the new WCCW Superintendent. Vail believed that the prison’s policy of conducting suspicionless searches only at fixed checkpoints was ineffective in controlling the movement of contraband through the facility, and decided to institute a policy of random searches. He was concerned, however, that to order an increase in the number of searches performed, while retaining the policy that only female guards could perform them, would lead to additional grievances and an eventual lawsuit by the female guards. On February 26, 1989, after consultation with the Director of the DOC, Superintendent Vail decided to change the policy at the institution and to order routine cross-gender clothed body searches of WCCW inmates. Despite warnings from psychologists on his staff that the cross-gender clothed body searches could cause severe emotional distress in some inmates, Vail instituted the policy which became effective on July 5, 1989. During the cross-gender clothed body search, the male guard stands next to the female inmate and thoroughly runs his hands over her clothed body starting with her neck and working down to her feet. According to the prison training material, a guard is to “[u]se a flat hand and pushing motion across the [inmate’s] crotch area.” WCCW, Pat-Down Searches of Female Inmates (n.d.). The guard must “[p]ush inward and upward when searching the crotch and upper thighs of the inmate.” Id. All seams in the leg and the crotch area are to be “squeez[ed] and knead[ed].” Id. Using the back of the hand, the guard also is to search the breast area in a sweeping motion, so that the breasts will be “flattened.” Id. Superintendent Vail estimated that a typical search lasts forty-five seconds to one minute. A training film, viewed by the court, gave the impression that a thorough search would last several minutes. At a minimum, each response and movement officer was expected to perform ten random searches per shift during the two daytime shifts. Several inmates were searched by male guards on the first (and only) day of implementation. One, who had a long history of sexual abuse by men, unwillingly submitted to a cross-gender clothed body search and suffered severe distress: she had to have her fingers pried loose from bars she had grabbed during the search, and she vomited after returning to her cell block. Later that day, the inmates filed this civil rights action under 42 U.S.C. § 1983 and obtained a preliminary injunction, which was later transformed into a permanent injunction. Random cross-gender clothed body searches have not been performed at the WCCW since that day, July 5, 1989. The district court issued its order permanently enjoining the searches following a seven-day trial. The record includes over 1000 pages of trial testimony transcripts, about 300 court documents, and various exhibits including videotapes. Before reaching his decision, Judge Bryan heard six days of live testimony, reviewed eight written or videotaped depositions, and received fifty-six exhibits. II The inmates first contend that the search policy violates the Fourth Amendment. The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches, and its protections are not extinguished upon incarceration. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.1988). Judge Reinhardt’s concurring opinion ably articulates the Fourth Amendment analysis developed by Bell v. Wolfish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1979), and Turner v. Safley, 482 U.S. 78, 87-91, 107 S.Ct. 2254, 2260-62, 96 L.Ed.2d 64 (1987). We do not decide, however, whether the search policy violates the Fourth Amendment, because we conclude that the Eighth Amendment prohibition against the unnecessary and wanton infliction of pain forbids these searches under the circumstances of this case. We address the Fourth Amendment issue only to clarify our reasons for not deciding the case on that basis. We agree that the conduct at issue plainly is a “search” that implicates the protections of the Fourth Amendment. Consequently, Judge Reinhardt’s contention that we should decide this case on the basis of the Fourth Amendment, because a search reasonable under the Fourth Amendment “cannot, by definition,” violate the Eighth Amendment, has surface appeal. Its fallacy lies in the failure to pinpoint precisely which legitimate Fourth Amendment interest is violated by these searches. Judge Reinhardt avoids the issue by simply presuming the inmates possess rights that are invaded by these searches. He proceeds directly to the Turner analysis of whether the search policy is valid, as reasonably related to legitimate penological interests, without examining how the inmates'’ Fourth Amendment rights are infringed. Whether such rights exist—whether the inmates possess privacy interests that could be infringed by the cross-gender aspect of otherwise constitutional searches— is a difficult and novel question, and one that cannot be dismissed lightly. But we cannot assume from the fact that the searches cause immense anguish that they therefore violate protected Fourth Amendment interests. Far from it, our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. See Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) (pat-down searches of male inmates that included groin area by female guards do not violate Fourth Amendment); Michenfelder, 860 F.2d at 334 (occasional visual strip searches of male inmates by female guards do not violate Fourth Amendment). The frequency and scope of the searches in Grummett and Michenfelder were significantly less invasive than the searches at issue here, and hence those cases are not controlling. Most importantly, however, the prisoners in those cases rested their claims upon invasions of privacy. The gravamen of the inmates’ charge here is that the cross-gender clothed body searches inflict great pain and suffering. The unnecessary and wanton infliction of pain upon prisoners constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (quotations omitted). Although the inmates here may have protected privacy interests in freedom from cross-gender clothed body searches, such interests have not yet been judicially recognized. On the other hand, the Eighth Amendment right of incarcerated persons to be free from the unwarranted infliction of pain is clearly established. As both amendments are applicable, and we affirm the district court upon the basis of the Eighth Amendment, we do not reach the Fourth Amendment claims. III “ 'After incarceration, only the “unnecessary and wanton infliction of pain” ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.' ” Whitley v. Albers, 475 U.S. at 319, 106 S.Ct. at 1084 (quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711 (1977), in turn quoting standard originally described in Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (internal citation omitted)). Under traditional Eighth Amendment analysis, we first consider whether there is an “infliction of pain,” and, if so, whether that infliction is “unnecessary and wanton.” A The district court made a number of findings of fact on the issue of pain. Noting that many of the inmates at WCCW have histories of sexual or physical abuse by men, the district court found that physical, emotional, and psychological differences between men and women “may well cause women, and especially physically and sexually abused women, to react differently to searches of this type than would male inmates subjected to similar searches by women.” Findings of Fact & Conclusions of Law at 3, Jordan v. Gardner, No. C89339TB (W.D.Wash. Feb. 28, 1990) (hereinafter “Findings & Conclusions”) (If 6). The district court found that “[t]here is a high probability of great harm, including severe psychological injury and emotional pain and suffering, to some inmates from these searches, even if properly conducted.” Id. (¶ 8). This finding was buttressed by testimony regarding the inmate witnesses’ personal histories, which the court found to be credible. Id. (¶ 7). The record in this case, including the depositions of several inmates and the live testimony of one, describes the shocking histories of verbal, physical, and, in particular, sexual abuse endured by many of the inmates prior to their incarceration at WCCW. For example, S.H., who gave live trial testimony, described rapes by strangers (twice) and by husbands or boyfriends. She described how she had been beaten by various men in her life. Two deprived her of adequate food; one pushed her out of a moving car. S.H.’s story is not unique. Eighty-five percent of the inmates report a history of serious abuse to WCCW counselors, including rapes, molestations, beatings, and slavery. Another inmate, K.D., testified by deposition that her second husband beat her, strangled her, and ran over her with a truck. As T.D., another inmate, grew up, she was frequently strapped or handcuffed to a bed by her half-brother, who beat or raped her; T.D.’s mother told her that there was nothing wrong with her half-brother’s conduct. T.D.’s mother once directed her to masturbate her stepfather, and in her later teens T.D. was pushed into sexual liaisons by her mother, who would then blackmail the men. Another inmate’s hand was broken by one of her two wife-beating husbands. Another, S.E., was sixteen when her uncle impregnated her; after the failure of the uncle’s attempts to induce an abortion using a broom handle, screwdriver, bleach, and Lysol, the uncle paid a man to marry her. During that marriage, S.E. was frequently raped by her husband and his friends, one time ending up in the hospital after they beat her and “ripped [her] behind.” The inmates presented testimony from ten expert witnesses on the psychological impact of forced submission to these searches by male guards, and related issues. The experts included WCCW staff members, social workers, psychologists, an anthropologist, and the former Director of Corrections for four different States at various times. The testimony described the psychological fragility of and disorders found in abused women. A psychologist specializing in psychotherapy for women testified that the unwilling submission to bodily contact with the breasts and genitals by men would likely leave the inmate “revictimiz[ed],” resulting in a number of symptoms of post-traumatic stress disorder. Although there was some expert testimony that expressed uncertainty as to the magnitude of the harm suffered by the inmates, the inmates’ experts, many of whom were employed by WCCW, were unanimously of the view that some would suffer substantially. This conclusion was corroborated by the inmates’ own testimony and the disastrous results of the cross-gender clothed body search of S.H. On appeal we look for clear error. Only if we are “ ‘left with the definite and firm conviction that a mistake has been committed,’ ” United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 284-85 n. 14, 102 S.Ct. 1781, 1787-88, 72 L.Ed.2d 66 (1982)), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), may we overturn facts found by the district court. The prison officials’ challenge that such findings are clearly erroneous must fail. We are satisfied that the constitutional standard for a finding of “pain” has been met in this case. In most of our other search cases, the court has not been presented with evidence pointing to more than momentary discomfort caused by the search procedures. For example, in Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985), this court considered the constitutionality of pat searches performed by female guards on male prisoners. We concluded that the inmates had not shown sufficient evidence of pain to make out a cognizable Eighth Amendment claim. Id. at 493 n. 1. Nothing in Grummett indicates that the men had particular vulnerabilities that would cause the cross-gender clothed body searches to exacerbate symptoms of pre-existing mental conditions. Indeed, in contrast to this case, nothing in Grummett indicates that the male prisoners had experienced or would be likely to experience any psychological trauma as a result of the searches. The record in this case supports the postulate that women experience unwanted intimate touching by men differently from men subject to comparable touching by women. Several witnesses, including experts in psychology and anthropology, discussed how the differences in gender socialization would lead to differences in the experiences of men and women with regard to sexuality. Grummett, simply is not controlling in this case. In short, we are satisfied that the cross-gender clothed body search policy constituted “infliction of pain.” B Whether the infliction of pain is “unnecessary and wanton” involves an inquiry into the justification for the. new cross-gender clothed body search policy and its intent. 1 The record reflects, and the district court found; that WCCW’s security is not dependent upon cross-génder clothed body searches. The prison officials do not argue that WCCW’s security has been impaired in the slightest during the pendency of the district court’s injunctions, preliminary and permanent, which have now been in effect for three years. Although Superintendent Vail’s predecessor voiced concerns about internal security and the need for random searches, these concerns have been met by the establishment of random and routine searches by female guards. Superintendent Vail himself confirmed as much at trial. Nor do cross-gender clothed body searches ensure equal employment opportunities for male guards. The conflict between the right of one sex not to be discriminated against in job opportunities and the other to maintain some level of privacy "has normally been resolved by attempting to accommodate both interests through adjustments in scheduling and job responsibilities for the guards." Smith v. Fairman, 678 F.2d 52, 55 (7th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983); see also Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079, 1087 (8th Cir.), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980), overruled on other grounds, Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). At trial, the prison officials’ own witnesses testified that not a single bid had been refused, promotion denied, nor guard replaced as a result of the ban on routine cross-gender clothed body searches. Although the district court found that the random search policy was “addressed” to security, it also noted that the evidence demonstrated “that the security interests of the [WCCW] have been adequately fulfilled by the actions of its administrative officials, prior to the proposed policy change and during the period in which a preliminary injunction has been in effect in this case.” Findings & Conclusions at 6 (¶ 19). It appears that none of the Eighth Amendment cases decided by the Supreme Court, this circuit, or any other court of appeals has upheld a pain-inflicting measure simply because prison officials implemented the policy to “address” a legitimate governmental interest. The district court’s conclusion that “[t]he proposed random or routine cross-gender clothed body searches constitute the infliction of pain without penological justification, and cruel and unusual punishment in violation of the Eighth Amendment,” Findings and Conclusions at 12 (¶ 28) (emphasis added), was entirely consistent with the evidence. 2 From the discussion above, it is evident that the cross-gender clothed body searches are "unnecessary." The closer question is whether the infliction of pain was "wanton." "Eighth Amendment claims based on official conduct that does not purport to be the penalty formally imposed for a crime require inquiry into [the prison officials’] state of mind. . . ." Wilson v. Seiter, — U.S. —, —, 111 S.Ct. 2321, 2326, 115 L.Ed.2d 271 (1991). "It is obduracy and wantonness . . . that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319, 106 S.Ct. at 1084. “[W]antonness does not have a fixed meaning but must be determined with `due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.’" Wilson, — U.S. at —, 111 S.Ct. at 2326 (quoting Whitley, 475 U.S. at 320, 106 S.Ct. at 1084). In determining what constitutes "wantonness," the baseline mental state is deliberate indifference. Wilson, — U.S. at —-—, 111 S.Ct. at 2326-27. Thus, where an inmate alleges that the conditions of confinement inflict unnecessary suffering upon him or her, to establish wantonness the inmate must show only that the prison officials were deliberately indifferent to the inmate’s suffering. Id. In contrast, when prison officials use force to maintain order, a greater showing is required; in that situation, wantonness turns on "`whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’" Hudson v. McMillian, — U.S. —, —, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992) (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1084). The reasons for this distinction are plain. Whether in the context of a prison-wide disturbance or an individual confrontation between an officer and prisoner, corrections officers often must act immediately and emphatically to defuse a potentially explosive situation. See, e.g., Williams v. Burton, 943 F.2d 1572, 1575-76 (11th Cir. 1991), cert. denied, — U.S. —, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992). In such a situation, officers must make difficult judgments whether, and how much, force is appropriate. Id. The officer rarely has time for reflection; instead, the decision to use force must be made "`in haste, under pressure, and frequently without the luxury of a second chance.’" Hudson, — U.S. at —, 112 S.Ct. at 998 (quoting Whitley, 475 U.S. at 320, 106 S.Ct. at 1084). Because the critique of such decisions in hindsight could chill effective action by prison officials, the Supreme Court has held that the higher standard is appropriate. We conclude that in this situation “wantonness” is determined by the deliberate indifference standard. Unlike judgment in the excessive force context, our task is not to critique in hindsight the exercise of judgment of a particular officer on a specific occasion. The cross-gender clothed body search policy was developed over time, with ample opportunity for reflection. Moreover, unlike incidents of excessive force, the cross-gender clothed body search policy does not inflict pain on a one-time basis; instead, as with substandard conditions of confinement, the policy will continue to inflict pain upon the inmates indefinitely. Cf. Wilson, — U.S. at-n. 1, 111 S.Ct. at 2324 n. 1 (“Undoubtedly deprivations inflicted upon all prisoners are, as a policy matter, of greater concern than deprivations inflicted upon particular prisoners____”). When, as here, officials formulate a policy in circumstances where there are no particular constraints on the officials’ decisionmaking process, see Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992), and the implementation of the policy will inflict pain upon the inmates on a routine basis, we need not look for a showing of action taken “maliciously and sadistically” before Eighth Amendment protections are implicated. The record mandates the conclusion that the inmates met their burden of establishing the requisite "deliberate indifference." Superintendent Vail indicated that the policy was not required for security purposes and that he adopted the cross-gender clothed body search policy without a great deal of knowledge about the impact of the searches upon the inmates, see supra note 4. Yet long before the policy was actually implemented, Superintendent Vail was urged by members of his own staff not to institute cross-gender clothed body searches due to the psychological trauma which many inmates likely would suffer. Further, once the policy took effect, a court order was necessary to prevent the searches although one of the first inmates to be searched suffered a severe reaction. Even now, despite ample testimony of the harmful effects of this policy, the prison officials are intent upon reversing the district court injunction. In short, we find that the record supports but one conclusion: the prison officials acted with deliberate indifference as to the harm that the cross-gender clothed body searches were likely to cause. See Berry v. City of Muskogee, 900 F.2d 1489, 1498 (10th Cir.1990) (knowledge of risk of harm and failure to act to prevent the harm constitute deliberate indifference); see also Williams v. Griffin, 952 F.2d 820, 826 (4th Cir.1991) (same); DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991) (deliberate indifference established by showing knowledge of risk of impending harm that is easily preventable, and failure to prevent it); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988) (actual or constructive knowledge of risks plus failure to act constitutes deliberate indifference); cf. Redman, 942 F.2d at 1443 (prison officials may not act with reckless indifference to a particular vulnerability of which the officials know or should know). The district court’s finding that Superintendent Vail was a credible witness does not undermine the above analysis. As the district court noted, Vail believed that he was in a “lose-lose situation.” He believed that if he did not accede to the union’s demands and institute the cross-gender clothed body search policy, he would be sued by the employees’ union. The wish to avoid a lawsuit from an employees’ union, however, does not provide a justification for inflicting pain of a constitutional magnitude upon inmates, even if the belief that a labor grievance suit would be filed was sincere. Moreover, Vail’s attempts to ensure that the searches were conducted in a professional manner do not negate the conclusion that he was deliberately indifferent to the inmates’ pain when it became obvious that the pain would be inflicted no matter how professionally the searches were conducted. Psychologists on the WCCW staff warned Vail that the guards’ professional demeanor would not ameliorate the risk of psychological harm, and the severe reaction of one inmate occurred during a search that was performed in accordance with the policy. Implicit in Judge Trott’s dissent is the belief that the deliberate indifference standard should not be applied to the adoption of prison policies, because officials who institute policies generally do so after carefully examining the consequences. In the dissent's view, such officials cannot be said to have manifested “deliberate indifference” to the constitutional rights involved, and, thus, prison policies should rarely if ever be found to violate the Eighth Amendment. While at first blush such analysis may have some appeal, a closer examination reveals that it has a fatal infirmity. The dissent’s analysis fails to take into account the full scope of the term “deliberate indifference.” It is not enough to say that before enacting a policy prison authorities considered an issue carefully. That is only one part of their obligation. Prison authorities are also required to afford sufficient weight to the constitutional rights of individuals. The failure to treat constitutional provisions with appropriate respect constitutes deliberate indifference to the rights the policy seeks to limit. If a prison administrator decides to ignore grave suffering because of irrelevant or unimportant concerns, that administrator demonstrates a deliberate indifference to the harm being done and to the constitutional principle at stake. For example, if the superintendent of a prison becomes aware that a disruptive prisoner has been threatened with death by other prisoners and he does nothing because he decides that the morale of the prison guards will improve if the disruptive prisoner dies, or that the guards’ morale will suffer if he interferes with their wholly inadequate approach to handling the situation, the superintendent will have acted with deliberate indifference to the prisoner’s welfare and to his constitutional rights. No matter how much thought and consideration the superintendent gives to the problem, his failure to place a higher value on a prisoner’s life than on the staff’s morale will constitute “deliberate indifference.” Here, Superintendent Vail urges, in effect, that it is proper to inflict serious psychological pain on the inmates because otherwise it may be necessary to interrupt the lunch periods of female guards, periods during which they are on duty. He also points to other minor concerns relating to the morale and working conditions of the prison staff, and, belatedly, to routine and automatic security concerns. Superintendent Vail considered the harm his policy would cause and instituted the policy nevertheless. He did so because of an exaggerated regard for pragmatic interests of lesser significance and a lack of proper concern for the serious infringement of a counter-vailing constitutional interest. He was advised by his staff of the harm that his policy would cause, yet he elevated a far less important concern above the constitutional injury. It is simply not enough to say, as the dissent does, that he gave the issue a great deal of thought. The "sufficiently culpable state of mind" necessary to find deliberate indifference has more meaning than that. See Wilson v. Seiter, — U.S. —, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Under these circumstances, we must conclude that the prison officials’ conduct in this matter has been “wanton.” The district court properly found that the policy is “unnecessary and wanton.” C The prison officials propose use of another test altogether for establishing a violation of the Eighth Amendment. They argue that the Eighth Amendment challenge, like all of the inmates' other claims, should be measured under the “reasonableness” standard of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), rather than by the traditional Eighth Amendment approach. We reject this argument. Although the Supreme Court has stated broadly that "the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights," Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 1038, 108 L.Ed.2d 178 (1990), Turner has been applied only where the constitutional right is one which is enjoyed by all persons, but the exercise of which may necessarily be limited due to the unique circumstances of imprisonment. See, e.g., id. (due process under Fourteenth Amendment); Turner, 482 U.S. at 91-99, 107 S.Ct. at 2262-66 (free association under First Amendment); Michenfelder, 860 F.2d at 332-36 (applying Turner to privacy and Fourth Amendment claims, but not to Eighth Amendment claim); Griffin v. Coughlin, 743 F.Supp. 1006, 1010-19 (N.D.N.Y.1990) (applying Turner to equal protection claim but not to Eighth Amendment claim); see also Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir.1989) (examining Eighth Amendment claim without reference to Turner). Eighth Amendment rights do not conflict with incarceration; rather, they limit the hardships which may be inflicted upon the incarcerated as "punishment." See Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979) (Kennedy, J.) ("Whatever rights one may lose at the prison gates, . . . the full protections of the eighth amendment most certainly remain in force.") (citations omitted). Perhaps for this reason, the Supreme Court has never applied Turner to an Eighth Amendment case. We decline to do so today. D The inmates, have established a violation of their Eighth Amendment right to be free from “cruel and unusual punishments.” The record more than adequately supports the district court’s finding of psychological harm, and the harm is sufficient to meet the constitutional minima. Furthermore, the infliction of this pain is “unnecessary and wanton” under the applicable legal standards. We uphold the district court’s conclusion that the cross-gender clothed body search policy at the women’s prison constituted cruel and unusual punishment in violation of the Eighth Amendment. IV Having identified an Eighth Amendment violation, we must next consider the propriety of the district court’s remedy. "The district judge ha[s] the power only to correct the constitutional defects that he [or she] [finds]." Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982); see also Toussaint v. McCarthy, 801 F.2d 1080, 1107-08 (9th Cir.1986) ("An injunction must be narrowly tailored to cure the constitutional violation and must not intrude on the functions of state officials unnecessarily."), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The district court designed its injunction narrowly. The prison officials are enjoined only from conducting “routine or random clothed body searches of female inmates which include touching of and around breasts and genital areas[ ] by male corrections officers” at WCCW. Findings & Conclusions at 14 (¶ 1) (issuing order of injunction). The court specifically noted that its decision “does not extend to cross gender searches under emergency conditions, cross gender searches of men by women, or cross gender searches at female institutions other than [WCCW].” Id. at 13 (II 33). The prison officials have not challenged the scope of the injunction. In any event, we conclude that the injunction was appropriately tailored to prohibit the identified constitutional violation. The district court has not barred the implementation of random or routine suspicionless searches; in fact, these have continued during the three years since the cross-gender clothed body search policy was enjoined. Only non-emergency, suspicionless clothed body searches by male guards are forbidden. V It cannot be gainsaid that incarceration "`brings about the necessary withdrawal or limitation of many privileges and rights,’" Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)), or that some conditions that are "restrictive and even harsh" can be "part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). In this case we are presented with the prospect of serious psychological suffering, the infliction of which is demonstrably "unnecessary" and, in the constitutional sense of the word, "wanton." The "standards of decency in modern society," Baumann v. Arizona Dep’t of Corrections, 754 F.2d 841, 846 (9th Cir.1985), do not permit the imposition of such needless harm. The inmates have established a violation of their Eighth Amendment rights, justifying the district court’s issuance of an injunction. Because the Eighth Amendment grounds are sufficient to support the injunction, we do not reach the inmates’ other constitutional claims. AFFIRMED and REMANDED for recalculation of attorneys’ fees. . The WCCW officials euphemistically refer to these searches as "pat-down” searches. However, as discussed infra at 1523, the evidence showed that these searches involved not "patting" but rather motions that are more accurately described as "rubbing,” "squeezing," and "kneading.” We will follow the lead of the district court and decline to refer to the searches as "pat-down” searches in favor of the neutral description “cross-gender clothed body” searches. . This inmate later settled a suit for damages against the guard and prison officials for $1000 plus $10,000 in attorneys’ fees. . The inmates also contend that the cross-gender clothed body searches violate the First Amendment, in that some of them have religious objections to intimate contact by men not their husbands. Although the First Amendment is the "more `explicit textual source of constitutional protection’" of free exercise of religion, see Soldal v. Cook County, — U.S. —, —, 113 S.Ct. 538, 548, 121 L.Ed.2d 450 (1992) (quoting Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989)), the Fourth and Eighth Amendments more directly regulate the conduct at issue — searching, and inflicting pain and suffering — and affect a much larger part of the inmate population. Since we affirm the district court on the basis of the Eighth Amendment, we do not reach the First Amendment claims. . In keeping with the tradition of not revealing names of the victims of sexual assault, we use initials here to protect the privacy of the inmates. . We do not chart new territory in upholding the district court’s finding that men and women may experience unwanted intimate touching by members of the opposite gender differently. In the Title VII context, we concluded: [BJecause women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior____ Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (footnote omitted). . The Supreme Court has instructed us that “neither judge nor jury freely [may] substitute their [sic] judgment for that of officials who have made a considered choice.” Whitley, 475 U.S. at 322, 106 S.Ct. at 1085. By concluding that cross-gender clothed body searches are unjustifiable on this record, Judge Bryan has not violated this stricture. It is difficult to describe the new policy as a "considered choice”; Superintendent Vail noted at trial that he had formulated his policy “[n]ot with anywhere near the amount of knowledge I have at this point" concerning the likely impact on the inmates. Cf. Tribble v. Gardner, 860 F.2d 321, 327 n. 9 (9th Cir.1988) ("In view of the substantial evidence that ... defendants have exaggerated their response to purported security considerations, we do not defer to their expert judgment in these matters.”) (citations omitted), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). . In holding that the "maliciously and sadistically" standard applies to all allegations of excessive force, the Supreme Court does not require as a threshold matter a finding that an emergency situation, such as a riot or lesser disruption, existed. However, the absence of an emergency may be probative of whether the force was indeed inflicted maliciously or sadistically. See Hudson, — U.S. at —, 112 S.Ct. at 999 ("In determining whether the use of force was wanton and unnecessary, . . . it may also be proper to evaluate the need for application of force . . . [and] the threat `reasonably perceived by the responsible officials.’") (quoting Whitley, 475 U.S. at 321, 106 S.Ct. at 1085). . Although Redman involves the Fourteenth Amendment’s protections, the Eighth Amendment imposes a duty on prison officials at least as rigorous. Redman, 942 F.2d at 1442-43. . But see Walker v. Sumner, 917 F.2d 382, 385-88 (9th Cir.1990) (applying one Turner factor to assertion that forced blood test violated Fourth, Eighth, and Fourteenth Amendments, without analyzing constitutional arguments separately); Michenfelder, 860 F.2d at 331 n. 1 (suggesting Turner’s applicability to Eighth Amendment analysis, although later using traditional Eighth Amendment approach). . The prison officials argue that the district court improperly used a multiplier of 2.0 of the lodestar amount in awarding attorneys’ fees. The district court enhanced the lodestar amount because (1) the plaintiffs would have faced substantial difficulty in obtaining counsel without an enhancement for the risk of loss; (2) the enhancement was necessary to reflect the difference in the market treatment of contingent fee cases and cases similar to this one; and (3) the plaintiffs’ counsel secured important results which benefit society as a whole. The Supreme Court in City of Burlington v. Dague, — U.S. —, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), recently limited the use of contingency enhancements to the lodestar amount. We thus conclude in light of Dague that the enhancement here was not proper and the case must be remanded for recalculation of fees in the light of Dague.
REINHARDT, Circuit Judge, with whom CANBY, Circuit Judge, joins, concurring: Eldon Vail is the superintendent of the Washington Corrections Center for Women. The prison employs both male and female guards. Superintendent Vail has authorized the male guards (as well as the females) to search the clothed bodies of the female inmates randomly and routinely, using a “grab-type motion” to “rub,” “strokfe], squeez[e],” and “knead[j” the women’s exteriors, including their covered breasts, buttocks, inner thighs, and crotches. The guards are told to “push inward and upward” when searching the women’s upper thighs and crotches and to check the crease in their buttocks with a downward motion of the edge of the hand. There is no dispute that the searches are necessary; the question is whether, under the Constitution, male guards may perform them. Prison regulations prohibit male guards from conducting strip searches and body cavity searches. However, Superintendent Vail contends that the prison’s security will be compromised if male guards are prohibited from conducting the clothed body searches as well. He also contends that the rights of both the male and female guards to equal employment opportunities and to the full benefits of their collective bargaining agreement will be adversely affected if the male guards are not permitted to perform their share of those searches. The female inmates urge that cross-gender clothed-body searches are invidious and violate their rights under the first, fourth, and eighth amendments. They contend that clothed body searches may be performed only by female guards. The district judge agreed with each of the inmates’ constitutional arguments. I. The majority decides this case on the basis of the eighth amendment. I believe that the conduct challenged here violates the fourth amendment as well as the eighth, and that this case is more properly decided on the basis of the former constitutional protection. The question of which constitutional provision to rely upon when an act violates more than one is, however, a prudential matter. Here, a majority supports the proposition that the eighth amendment has been violated, but a number of its members do not wish to reach the fourth amendment question. While I would prefer to rely on the fourth amendment and believe strongly that the court should do so, I agree fully with Judge O’Scannlain’s reasoning and conclusion that these searches violate the eighth amendment. Accordingly, I join his opinion, with the exception of Part II. In the discussion that follows, I analyze this case under the fourth amendment. I set out my reasons for relying on that amendment in Part V, infra. II. Washington Corrections Center for Women, a state prison for women, in Gig Harbor, Washington, opened in 1971. Prior to July, 1989, male guards at the prison did not actually conduct searches of the female inmates. While under the regulations male guards were permitted to conduct “suspicion searches”—to search an inmate’s clothed body if they had reason to suspect that the woman was carrying contraband or if there were an emergency— suspicion searches were, in practice, always conducted by female guards. The prison regulations also permitted “suspicionless searches,” but the regulations expressly stated that those searches were to be conducted by female guards only. Until July, 1989, only one type of suspicionless search was authorized, “routine searches.” Routine searches were performed (by female guards) at fixed checkpoints, such as the kitchen or the visiting room. In July, 1989, Eldon Vail, the new superintendent of the prison, authorized guards to begin conducting a second type of suspicionless search called “random searches.” Under the policy establishing random searches, no cause is required for the search and no fixed locations are provided for. The policy calls for guards to search a minimum of ten inmates per shift at random during the day and swing shifts; searches may be conducted anywhere in the general prison area or in any part of the women’s cells themselves; unlike routine searches, there is no advance notice that a random search will be conducted. When Superintendent Vail issued the policy providing for random searches, he authorized male as well as female guards to conduct them, and he also, for the first time, authorized male guards to conduct routine searches. After the superintendent’s actions, as of July 5, prison policy authorized all guards to conduct both “suspicionless” and “suspicion” searches. However, as the majority points out, this policy lasted only one day, following which, first by agreement and then by injunction, the authority' of male guards to conduct suspicionless searches was suspended. Although no injunction was sought with respect to suspicion searches, the prior practice of having those searches conducted by female guards only continued in effect. Superintendent Vail was prompted to issue his new policy by a grievance from the guards’ union that challenged the prison’s assignment of routine (suspicionless) searches to female guards alone. In the past, prison administrators had denied similar grievances because they believed that the single-sex searches were “consistent with ... prudent correctional management.” Superintendent Vail testified that when he made his decision to allow cross-gender searches, he was in a “lose/lose” situation. If he turned down the grievance, the guards would sue; if he authorized male guards to conduct the searches, the inmates would sue. Prison administrators call the cross-gender clothed body searches “pat searches.” The district court refused to adopt the prison’s term, wisely in my view. According to the prison’s training materials, the proper way to conduct such a search is to Squeeze and knead the shoulders____Knead ... the inside of the waistband of trousers [and] pull[ ] the fly away from the body. From behind, ... [use] both hands across the crotch[,] [p]ushing the hands across the crotch[,] [squeezing and kneading all seams____ The breast area shall be searched in a sweeping motion, using only the back of the hand____ The breasts of a female will be flattened by this method. Use a flat hand and a pushing motion across the crotch area. Maintain a flat, inward pushing motion. The edge of the hand in a downward motion can be used to check the crease in the buttocks. Push inward and upward when searching the crotch and upper thighs of the inmate. Washington Corrections Center for Women, Pat-Down Searches of Female Inmates. While some modifications to the procedure may have occurred, the descriptions by the prison personnel and inmates, the training material, and a videotape viewed by this court reveal that the searches involve nothing so delicate or so tentative as “patting.” Rather, the searches are intimate and deeply invasive. Male guards conducted the intrusive suspicionless searches on July 5, 1989. After an inmate was searched by a male guard, her fingers had to be pried from the bars she had grabbed; she returned to her cell-block, vomited, and broke down. As soon as the searches began, the inmates filed a pro se complaint in district court. The prison informally agreed to suspend them that same day. Two days later, when the superintendent decided to reinstitute the searches, the inmates obtained a temporary restraining order. They subsequently obtained a preliminary injunction and were certified as a class. After a six-day trial, the district court entered a permanent injunction barring cross-gender suspicionless clothed body searches. The state appealed. III. I believe that invasive cross-gender searches violate the fourth amendment rights of female prisoners. Persons who have been convicted of crimes do not forfeit all of their rights under the Constitution when they pass through the gates of a prison. No "iron curtain" separates prison inmates from constitutional protections, Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); rather, inmates retain "those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (plurality opinion). Prisoners may not be subjected to invidious racial discrimination, Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam); they may petition the government for a redress of grievances, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); they may not be denied access to the courts, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); they are entitled to due process of law, Wolff v. McDonnell, supra; and they may not be subjected to cruel and unusual punishment, Hudson v. McMillian, — U.S. —, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Of more particular concern here, prison inmates have a right of privacy and dignity in their persons. Although the Supreme Court has held that prisoners have no right to privacy in their cells, Hudson v. Palmer, supra (plurality opinion), the limitation on privacy rights has not been extended to searches of prisoners’ bodies. See id., 468 U.S. at 555 n. 31, 104 S.Ct. at 3215 n. 31 (Stevens, J., concurring in part and dissenting in part). Following Hudson v. Palmer, courts, including ours, have consistently held that the fourth amendment applies to searches of prisoners themselves. See, e.g., Cornwell v. Dahlberg, 963 F.2d 912, 916-17 (6th Cir.1992) (male inmate strip-searched before female guards raises a valid fourth amendment privacy claim); Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.1988) (visual body cavity searches of inmates do not violate fourth amendment); Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986) (fourth amendment right to be free of body cavity search overcomes claim of qualified immunity). The parties do not dispute that the fourth amendment is implicated in this case. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court established the general standard for evaluating prisoners’ constitutional claims, including fourth amendment claims. Turner distills the principles originally established in Bell v. Wolfish, 441 U.S. 520, 551, 99 S.Ct. 1861, 1880, 60 L.Ed.2d 447 (1979), and a series of related cases. Turner summarizes the standard that emerged from these cases as follows: "when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is `reasonably related’ to legitimate penological interests [and is not] an `exaggerated response’ to those concerns." Turner, 482 U.S. at 87, 107 S.Ct. at 2260-61, 96 L.Ed.2d 64 (1987). Turner also identifies four factors that should be considered when determining whether this standard is met: first, whether there is "a `valid, rational connection’ between the prison regulation and a neutral, legitimate government interest put forward to justify it"; second, whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; third, whether and to what extent accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation of prison resources generally; and, fourth, whether a ready alternative to the challenged practice exists that will fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. Id., 482 U.S. at 89-91, 107 S.Ct. at 2262. The four factors must be evaluated in light of the Court’s overarching task: to determine whether a prison’s policy is reasonably related to prison administrators’ valid concerns or is an exaggerated response to those concerns. Under Turner, a prison’s response to its penological concerns must be appropriate: it must be reasonable; it cannot stand if it constitutes an overreaction. The Turner factors must be applied in light of the type of constitutional violation involved and the circumstances of the particular case. Some weigh more heavily in some circumstances; others more heavily in others. We derive guidance as to how the Turner factors are to be applied in “unreasonable search” cases from Bell v. Wolfish, supra. Bell tells us that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884. Instead, Bell mandates a balancing test. It states, “In each case [the test of reasonableness] requires a balancing of the need of the particular search against the invasion of personal rights that the search entails.” Id. (emphasis added). Thus, after applying the four Turner factors and evaluating all the circumstances, we must ask whether the prison’s need to use male guards to conduct the body searches—to the extent that such heed exists—outweighs the constitutional injury resulting from the invasiveness of the intrusion. In evaluating a claim under Turner, a court must accord "appropriate deference to prison officials," O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987), because "the judiciary is ill-equipped to deal with the difficult and delicate problems of prison management," Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989). This admonition applies especially strongly to concerns over prison security, which, the Court has stated, is the most important of all legitimate correctional goals. Hudson v. Palmer, 468 U.S. at 525, 104 S.Ct. at 3199. While courts must refrain from substituting their judgment for that of prison administrators, Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986), deference "does not mean abdication," Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990). "[Turner’s] reasonableness standard is not toothless," Thornburgh v. Abbott, 490 U.S. at 414, 109 S.Ct. at 1882. "[W]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." Turner, 482 U.S. at 84, 107 S.Ct. at 2259 (internal quotation omitted; citation omitted). IV. A. If the cross-gender clothed body searches authorized by Superintendent Vail are to pass constitutional muster under Turner, there must, first, be a “valid, rational connection between [the cross-gender searches] and the legitimate governmental interest put forward to justify [them].” Turner, 482 U.S. at 89, 107 S.Ct. at 2262 (internal quotation omitted; citation omitted). Prison administrators claim that the security needs of the prison and the employment rights of the guards justify cross-gender searches. As I discuss below, the connection between any legitimate penological interest and cross-gender searches is tenuous. Turner next requires a court to determine whether alternative means of exercising the constitutional right remain open to the inmates. Id., 482 U.S. at 90, 107 S.Ct. at 2262. The prison’s authorization of suspicionless cross-gender searches leaves the inmates no means of protecting their bodies against unreasonable searches. An inmate can do nothing to escape a search. Even an inmate who stays in her cell and behaves impeccably can be forced to submit to a male guard’s search of her body in an offensive, invasive, and intimate way. The third factor to be addressed under the Turner analysis is “the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison.” Thornburgh v. Abbott, 490 U.S. at 418, 109 S.Ct. at 1884. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Turner, 482 U.S. at 90, 107 S.Ct. at 2262 (citation omitted; emphasis added). Here, there will, of course, be no adverse effect of any kind on other inmates if female guards instead of male guards conduct the body searches, and, as I explain below, there is no evidence that there will be more than a slight impact on the rights of prison staff. The general grousing by the staff reflected in the record is no substitute for facts. Finally, under Turner, courts must consider whether there is an alternative to the challenged practice that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests. The existence of an “obvious, easy” alternative suggests that the regulation is not reasonable but is an exaggerated response to prison concerns. Id., 482 U.S. at 90-91, 107 S.Ct. at 2262. Here, there is, without question, an obvious, easy alternative to the use of male guards to perform searches which because of their cross-gender nature are highly offensive and intimidating to the female inmates whose bodies are searched: female guards can be used instead. Doing so may require a slight adjustment to guards’ work schedules, but that is a small price to pay for the preservation of the inmates’ fundamental constitutional rights. Almost any accommodation of constitutional rights will result in some “administrative burden”; most accommodations are not “cost-free.” Salaam v. Lockhart, 905 F.2d 1168, 1173 (8th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 677, 112 L.Ed.2d 669 (1991). The minor adjustments in the practices of the Washington Corrections Center for Women that the use of female guards would require are relatively insignificant, both in themselves and when weighed against the constitutional interests at stake. B. Properly applied, the four Turner factors address the question whether a particular prison policy is reasonable or constitutes an overreaction. To answer that question fully, it is necessary to evaluate carefully both the interests advanced to justify the prison policy and the practical effect of the policy on the inmates’ rights. It is also necessary to examine the force of the connection between the specific provisions of the policy and the underlying problems they are designed to alleviate. Only by assessing these factors is it possible to determine whether the prison’s actions are reasonably related to the interests it advances—to decide whether the connection between the policy and the prison’s interests is reasonable or whether, in light of the effect of the policy upon the prisoners’ constitutional rights, it reflects an overreaction. It is not enough that there are security concerns that may be alleviated to some minor degree by the regulation, or that the warden is acting in good faith and on the basis of his or her experience with the type of problem at hand. While legitimate concerns may justify a restriction, it is the particular restriction that must be justified by the particular problem at hand. For example, in Turner, the Court found that there were legitimate security concerns that justified placing reasonable restrictions upon the right to marry. However, it ultimately concluded that the particular regulation represented an exaggerated response to those security objectives. Turner, 482 U.S. at 97-98, 107 S.Ct. at 2266. Here, there are legitimate concerns that justify suspicionless searches; the question is whether the specific solution of having male guards perform the searches is reasonable. In answering this question, we give all due deference to the knowledge and experience of prison administrators. Id., 482 U.S. at 85, 107 S.Ct. at 2259. Having done so, I conclude that the cross-gender searches and the prison policy authorizing them are clearly “unreasonable.” (1) The first interest that prison administrators advance in support of the policy authorizing clothed body searches by male guards is that of institutional security. The officials contend that suspicionless searches serve to suppress the movement of contraband through the prison and that if male guards do not conduct some of the searches, inmates will be able to predict, based on the gender of the guards around them, whether searches will be conducted. As the majority opinion notes, the district court found that the prison’s security concerns do not justify random and routine cross-gender searches. In fact, the record reveals only a slight penological justification for having' the searches conducted by male guards. With all due respect to the Superintendent, the “predictability” concern on which he primarily relies appears to be highly conjectural. Superintendent Vail’s written explanation of his reasons for instituting the cross-gender searches are significant. They do not mention “predictability” or the prison’s security needs; they discuss instead “the efficient operation of the institution and ... the adverse impact [of the prohibition of random searches by male guards] on staff and inmate morale. Of equal importance is the fair distribution of employee work duties.” At trial, the superintendent testified, “The beginning of this issue, as I understand it, was that there was a lot of female officers who were simply tired of doing all the searches and the males didn’t do them. They didn’t see that that was fair or equitable.” When Superintendent Vail was asked at his deposition, “Spe