Lawrence H. Kent v. Perry Johnson and Dale Foltz

KRUPANSKY, Circuit Judge,

concurring in part and dissenting in part.

Because Kent’s sworn affidavit stating that he did not receive his copy of the Magistrate’s Report and Recommendation until July 10, 1984 has effectively rebutted the three day presumption imposed by Fed. R. Civ.P. 6(e), I agree that this court should accept jurisdiction over his appeal. I would also reverse the district court’s dismissal of Kent’s First Amendment freedom of religion claim for the reasons articulated in part IIA of the majority opinion.

The majority concedes that its Fourth and Eighth Amendment resolutions have not been recognized or approved in any decision emanating from either the Supreme Court or this circuit. See, Slip op. at 1226, 1227. Because the majority advocates an unwarranted extension of liability under § 1983 which is inconsistent with the logic and reasoning of relevant Supreme Court precedent interpreting the Fourth and Eighth Amendments, I respectfully dissent from parts IIB and IIC of the majority opinion.

Kent has alleged that his Fourth Amendment rights have been infringed by an unreasonable search as a result of an invasion of his privacy by female prison guards who, while performing their routine duties, were capable of viewing him in his prison cell and the prison shower while in various stages of nudity. Kent argued that he had a reasonable expectation of privacy in not being exposed in the nude to members of the opposite sex while he was locked in his prison cell and while he was bathing in the supervised prison shower area.

In Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), a prisoner asserted that he had a reasonable expectation of privacy which prevented prison officials from conducting a “shakedown” search of personal effects contained in his personal locker situated in his prison cell to determine if he possessed any items of contraband. In unequivocal language, the *1229 Supreme Court stated that prisoners do not retain a reasonable expectation of privacy in their prison cells:

Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.

104 S.Ct. at 3200 (emphasis added). A prisoner who does not possess a reasonable expectation of privacy under the facts of Hudson cannot be heard to argue that his expectation of privacy is infringed by corrections officers while conducting routine visual security surveillance of prisoners within their prison cells and the prison’s supervised shower area. Because the Hudson Court clearly and without equivocation stated that prisoners do not have any reasonable expectation of privacy in their prison cells and that the Fourth Amendment proscription against unreasonable seizure does not apply within the prison cell, Kent has failed to demonstrate that his complaint of visual security surveillance of prisoners in the prison housing unit or showers constituted a “search” within the meaning of the Fourth Amendment. 1

Kent also charged that he was deprived of his Eighth Amendment right to be free from cruel and unusual punishment because the exposure of his naked body to female security guards caused him to suffer embarrassment and humiliation.

The Eighth Amendment affords prisoners protection against wanton infliction of physical pain or exposure to egregious physical conditions which deprive them of basic human needs or are otherwise incompatible with contemporary standards of humane treatment under like or similar circumstances. Rhodes v. Chapman, 452 U.S. 337 , 101 S.Ct. 2392 , 69 L.Ed.2d 59 (1981). A charge of cruel and unusual punishment cannot be anchored in a bare assertion of a purely subjective condition unsupported by physical manifestations of injury. Accordingly, Kent’s purely subjective complaint of embarrassment and humiliation, standing alone, does not rise to the level of egregious treatment that would support a constitutional infringement under the Eighth Amendment.

For the reasons set forth above, I would exercise jurisdiction, reverse the trial court’s dismissal of the First Amendment freedom of religion claim, and affirm the trial court’s dismissal of the Fourth and Eighth Amendment claims.

ON RECONSIDERATION

JONES, Circuit Judge.

Defendants-appellees have petitioned for an en banc rehearing of this case. Pursuant to this court’s policy, the original panel has been given the initial opportunity to consider the petition and, if necessary, to amend or replace the decision of May 18, 1987. Because two recent decisions of the United States Supreme Court issued subsequent to the panel’s decision impact the parties’ relative burdens on remand, we hereby amend our prior opinion to incorporate specifically the standards set forth in O’Lone v. Estate of Shabazz, - U.S. -, 107 S.Ct. 2400 , 96 L.Ed.2d 282 (1987) and Turner v. Safley, - U.S. -, 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987).

As the Court reaffirmed in Turner : “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if ‘prison administrators ..., and not the courts, [are] to make the difficult judgments con *1230 cerning institutional operations’ ” — U.S. at-, 107 S.Ct. at 2261 (quoting Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 128 , 97 S.Ct. 2532, 2539 , 53 L.Ed.2d 629 (1977)). The Turner decision also identified four factors relevant to the determination of whether the prison regulation is in fact reasonable: (1) whether there is a “valid rational connection” between the regulation and the legitimate governmental interest which it allegedly furthers; (2) whether there are alternative means by which the inmate may exercise the right impinged; (3) what impact the accommodation of the inmate’s constitutional right will have on guards, other inmates, or the allocation of prison resources generally; and (4) the existence or absence of ready alternatives to the regulation in question. Id. at---, 107 S.Ct. at 2262.

In further explaining the fourth factor, the Court in Turner stated:

This is not a “least restrictive alternative” test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de mini-mus cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.

Id. at-, 107 S.Ct. at 2262 (citation omitted). The Court in O’Lone reasserted this statement of deferential review: “Though the availability of accommodations is relevant to the reasonableness inquiry, ... placing the burden on prison officials to disprove the availability of alternatives ... fails to reflect the respect and deference that the United States Constitution allows for the judgment of prison administrators.” — U.S. at -, 107 S.Ct. at 2405.

To summarize, we again note that plaintiff Kent’s complaint was dismissed by the trial court for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). We hold here only that the pleadings reviewed are sufficient to withstand such a motion, given the liberalities with which such complaints are measured under the rule. Even applying the rational relationship standard of Turner and O’Lone , under which a court need only inquire whether prison regulations allegedly impinging an inmate’s constitutional rights are “reasonably related” to legitimate penological interests, we must construe plaintiff’s complaint liberally and accept as true all factual allegations therein. In remanding, we do not foreclose the possibility of a disposition short of trial if the further development of the factual issues shows that such issues are suitable for summary judgment under Rule 56. We emphasize that the trial judge on remand should apply carefully the analysis outlined in Turner and O’Lone to determine the validity of Kent’s constitutional claims, and accordingly have amended our previous opinion to the extent that it may have suggested that Kent’s factual allegations required relief as a matter of law. It is apparent also that our reference to language in Grummett v. Rushen, 779 F.2d 491 (9th Cir.1985), suggesting that prison authorities are bound to adopt the least intrusive means of accommodation, is inconsistent with the cited language from Turner . To the extent therefore that part II of our opinion of May 18, 1987 is contrary to the Turner and O’Lone standards discussed above, we now amend it to incorporate those standards.

. The majority’s reliance on Grummett v. Rushen, 779 F.2d 491 (9th Cir.1985), is misplaced. In that case, the court found it unnecessary to consider whether Hudson precluded a finding that the prisoners had an expectation of privacy because the prisoners’ privacy interests, if they existed, were outweighed by the prison's interests in institutional security. See, Grummett, 779 F.2d at 496 n. 3.