Petition for Writ of Certiorari — Johnson v. Sheahan
Supreme Court brief1996
Ask Donna
What actually matters in this document.
Text
U a Our, U.o-
FILED
931951 MAY 28 19%
No. OFF IOE OF- THE CLERK
In the
Supreme Court of the Anited States
OCTOBER TERM, 1995
ALBERT JOHNSON, PETITIONER
Vv.
MICHAEL SHEAHAN, JAMES FAIRMAN, AND
RAUL ESTRADA, RESPONDENTS
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
TimoTHY S. BISHOP
Counsel of Record
JAMES C. SCHROEDER
DAVID J. FRANKLYN
TRACY M. FLYNN
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
Counsel for Petitioner
Bee.
ee, arte
ss om ene -
i
QUESTION PRES *“NTED
The First, Second, Fourth, S::th, Ninth, Tenth, and
Eleventh Circuits have held that avt#oners have a constitu-
tionally cognizable interest in not being routinely and deliber-
ately monitored while undressed, showering, or using the
toilet by guards of the opposite sex. In those circuits, courts
weig: the privacy interests of priso1ers against the operation-
al needs of prison authorities, including efficient staffing and
maintenance of security, in order to determine whether
particular prison practices or physical arrangements that
result in such monitoring are reasonable. The Seventh Circuit
held in this case, over Chief Judge Posner’s dissent, that
prisoners have no constitutionally protected interest in not
being monitored while naked or engaged in intimate functions
by guards of the opposite sex. In the Seventh Circuit,
therefore, no balancing of prisoner privacy and prison needs
is required. The question presented is:
Whether prisoners have a constitutionally cognizable
interest in not being routinely and deliberately observed
undressed or using the shower or toilet by guards of the
opposite sex.
ii
PARTIES TO THE PROCEEDING
Michael F. Sheahan, James W. Fairman, and Raul
Estrada were Gefendants-appellees below and are respondents
in this proceeding. A fourth defendant-appellee, Thomas J.
Charnogorsky, was voluntarily dismissed prior to oral
argument in the court of appeals and is not a respondent in
this proceeding. Petitioner is no longer pursuing a claim
against a fifth defendant-appellee, Richard J. Phelan, the
named party in the proceedings below.
eli ih a Pik IP AAI SEE ELEN A Se ET EE LMA
ail” Ae lint EER MS ms W i enahah cite Mr ewitie
iil
TABLE OF CONTENTS
Page
QUESTION PRESENTED ...........-..--+:: i
PARTIES TO THE PROCEEDING ...........-.- ii
SE Es 7s did ys 0 b Ale 9 6 4 0 wo8s l
EE ae ge x ace ay 8 toe ee 8 88 1
CONSTITUTIONAL PROVISIONS INVOLVED .. l
eS es a wees ec 8 88 2
1. Johnson’s Complaint ........-..-+-:- 3
2. The District Court’s Decision .......... 4
3. The Court of Appeals’ Decision ........ 5
REASONS FOR GRANTING THE PETITION ..... )
I. THESEVENTH CIRCUIT’S DECISION CON-
FLICTS WITH NUMEROUS RULINGS OF
OTHER COURTS OF APPEALS .......
Il. THE SEVENTH CIRCUIT’S DECISION IS
ONIN as oo ob 5 8 Aa ece ee 8 ee ee 8 8
A. The Seventh Circuit Erred In Relying On
Wolfish And Hudson To Dismiss Petitio-
ner’s Fourth Amendment Claim
10
16
iv
TABLE OF CONTENTS—Continued
B. The Seventh Circuit Erred In Holding That
Cross-Sex Monitoring Cannot Violate The
Eigith Amendment .......008500% 20
CORA ANNE 5-6. diab! cee ee oe ee ee 21
Vv
TABLE OF AUTHORITIES
Cases: Page
Albright v. Oliver, 510 U.S. 266 (1994).......... 6
Bell v. Wolfish, 441 U.S. 520 (1979) ....... passim
Canedy v. Boardman, 16 F.3d 183 (7th Cir.
CG 5 eS Wo 5 BER he 7 3a
Cookish v. Powell, 945 F.2d 441 (ist Cir.
SRS ee ca ee es 7, 11, 14, 19
Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir.
Pg a ca eae Ve ee ne ee ees 4e.485:19
Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992) .... 19
Cumbey v. Meachum, 684 F.2d 712 (10th Cir.
OS eis 4k vs ORE Ces EAS EE 7, 12, 14
Fortner v. Thomas, 983 F.2d 1024 (Lith Cir.
SO a. ic a POA EE ES BR oes Os 14
Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980) ... 11, 15
Graham v. Connor, 490 U.S. 386 (1989) ......... 6
Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir.
ONE ig Ub yay ws ace hte ee Eee 12
EE ———e
vi
TABLE OF AUTHORITIES—Continued
Page
Jordan v. Gardner, 986 F.2d 1521 (9th Cir.
SORE) éiaie bas Bika Oe ae Cee ee 11, 15, 21
Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987). . 13, 19
Lee v. Bratten, 1994 U.S. App. LEXIS 20669 (4th
Cle. Fae. B, TORO io a Site ee Kes es 14
Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) ..... 14
Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.
SOM SS. ORs Cee eee 12, 13, 19
Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982),
cert. denied, 461 U.S. 907 (1983) ....... 12, 14
Strickler v. Waters, 989 F.2d 1375 (4th Cir.), cert.
denied, 114 S. Ct. 393 (1993) .......... 11, 14
Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990),
cert. denied, 501 U.S. 1209 (1991) ......... 15
Torres v. Wisconsin Dep’t of Health & Soc. Servs.,
859 F.2d 1523 (7th Cir. 1988), cert. denied,
469 U.S. 1017 @& TORE (IGS cae ee 12
Turner v. Safley, 482 U.S. 78
(GET 5 rae eee eee 6, 13, 15, 17, 20
Whitley v. Albers, 475 U.S. 312 (1986) ....... 20, 21
Wilson v. Seiter, 501 U.S. 294 (1991) .......... 20
vii
TABLE OF AUTHORITIES—Continued
York v. Story, 324 F.2d 450 (9th Cir. 1963), cert.
denied, 376 U.S. 939 (1964)...........-..
Miscellaneous:
Comment, Sex Discrimination in Prison Employ-
ment: The Bona Fide Occupational Qualifica-
tion and Prisoners’ Privacy Rights, 65 lowa L.
ie ee A a ag ko ae be Mee 6 488
20 Ill. Admin. Code § 701.20(b)(1)(D) (1985 &
AOS, f OIE eee Tee ot ee
Note, Balancing Inmates’ Right to Privacy with
Equal Employment for Prison Guards, 4
Women’s Rights L. Rep. 243 (1978) ........
R. Posner, Sex and Reason (1992) .........-.-.-:
PETITION FOR A WRIT OF CERTIORARI
Albert Johnson respectfully petitions for a writ of
certiorari to review the judgment of the United States Court
of Appeals for the Seventh Circuit.
OPINIONS BELOW
Judge Easterbrook’s opinion for the court of appeals and
Judge Posner’s dissenting opinion (App., infra, la-22a) are
reported at 69 F.3d 144. The order denying the petition for
rehearing and suggestion for rehearing en banc over four
dissents (App., infra, 23a-24a) is not reported. The opinion
of the district court (App., infra, 25a-30a) is unofficially
reported at 1993 WL 388827 (N.D. Ill. Sept. 28, 1993).
JURISDICTION
The court of appeals entered judgment on October 24,
1995 and denied petitioner’s request for rehearing and
rehearing en banc on January 29, 1996. On April 4, 1996,
Justice Stevens granted petitioner 30 additional days in which
to file his petition, to and including May 28, 1996. This
petition is filed within the time allowed by Justice Stevens’
order. The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fourth Amendment to the U.S. Constitution pro-
vides in relevant part: “The right of the people to be secure
in their persons * * * against unreasonable searches and
seizures, shall not be violated.”
The Eighth Amendment to the U.S. Constitution
provides in relevant part: “Excessive bail shall not be
required, * * * nor cruel and unusual punishments inflicted.”
The Fourteenth Amendment to the U.S. Constitution
provides in relevant part: “nor shall any State deprive any
person of life, liberty, or property, without due process of
law.”
2
STATEMENT
Petitioner Albert Johnson’s pro se Section 1983 com-
plaint alleged that as a pretrial detainee at the Cook County
Jail in Chicago he was routinely and deliberately observed by
female prison guards while he was undressed, using the
shower, and using the toilet; that this invasion of privacy
violated his constitutional rights; and that prison officials
could satisfy their constitutional obligations by making minor
physical adjustments, such as improved screens and partitions
around shower and toilet facilities.
The Seventh Circuit majority, in an opinion by Judge
Easterbrook, affirmed dismissal of Johnson’s complaint for
failure to state a claim. In direct conflict, Judge Easterbrook
acknowledged, with decisions in other circuits which “say
that the Constitution forbids deliberate cross-sex monitoring”
(App., infra, 7a), the court of appeais held that prisoners
have no constitutionally cognizable interest in not being
observed engaged in intimate personal functions by guards of
the opposite gender. Nor could the court find in the Eighth
Amendment any “right not to be seen by the other sex.”
Ibid. Thus, because no constitutionally protected interests are
implicated, the court held, prison officials are not required
to consider even minor, nondisruptive, and inexpensive
changes to prevent routine cross-gender observation of naked
prisoners.
Criticizing the majority for “making a judgment that
condones barbarism” (App., infra, 22a), Chief Judge Posner
observed in dissent that “[n]o [other] case holds that the
surveillance of naked inmates by guards of the opposite sex
is lawful per se.” Jd. at 18a. Judge Posner himself rejected
the Fourth Amendment search and “right to privacy”
analyses adopted in most other circuits. Instead, Judge
Posner would have reversed the district court’s dismissal on
the ground that Johnson’s complaint stated a claim that he
3
had been subjected to cruel and unusual psychological
punishment prohibited by the Eighth Amendment.
The Seventh Circuit’s decision marks the nadir of
prisoner privacy rights. No other circuit has held that routine
and deliberate cross-gender monitoring of showering,
defecating, or urinating prisoners does not even implicate the
Constitution. This Court’s review is necessary to address the
circuit split created by the Seventh Circuit’s ruling in this
case, to settle major doctrii.al differences in the lower courts’
analyses of recurring prisoner cross-gender observation
claims, and to correct the erroneous decision below.
1. Johnson’s Complaint
Johnson, a pretrial detainee at the Cook County Jail,
filed an Inmate Grievance with the Cook County Department
of Corrections complaining that his “personal privacy [was]
violated” because “[f]emale guards are assigned to jobs * * *
which permit them to periodically view me and other inmates
in various states of undress while showering, sleeping and
using the toilet facilities.” Exh. 2 to Cmplt. Johnson ex-
plained that “[w]hen a female correctional officer is assigned
to work a dorm it is her duty and responsibility * * * to
constantly supervise all inmates in the dorms” and to survey
“the general toilet and shower facilities, which [are] in an
open unobstructed area except by a thin sheet that can be
seen through.” /bid. Johnson suggested that “[t}his problem
could be easily corrected by installing * * * fixed partitions,
or screens such as the type that are in the other divisions” in
the jail. /bid. ,
Johnson subsequently filed a pro se Section 1983 suit
repeating the allegations made in his grievance (which he
attached to. his complaint). Specifically, Johnson alleged that
inmates “are under observation 24 hours a day” (Cmplt. at
4-B); that female correctional officers’ assigned duties
included “supervising movements, making counts, and
4
making periodic unannounced spot-checks,” in carrying out
which duties they viewed Johnson engaged in intimate bodily
functions (id. at 4-C); and that Johnson was ais> seen using
the shower and toilet by female correctional officers “from
the flag/hall area where [correctional officers} usually sit
when they are not doing anything.” /bid. Johnson elaborated,
in his pro se brief opposing dismissal, that he was subjected
on a “daily basis” tc v'2wings by female correctional officers
while he was “showeiiog, defecating, and urinating.” App.
to C.A. Br. at A28.
Johnson professed feelings of “embarrassment and
humiliation” as a result of this cross-gender observation
(Cmplt. at 5), and stated that his “Fourteenth and First
Amendment Rights” had been violated, that he was being
“punished without due process and equal protection,” and
that his “right to personal privacy [and] also my religious
belief pertaining to Christian modesty is being infringed.” /d.
at 4-A. Johnson requested that defendants be ordered to take
remedial measures “to provide greater protection of pretrial
detainees/inmates personal privacy while showering and
defecating by installing screens or partitions in the toilet and
shower facilities.” Jd. at 5-A.
2. The District Court’s Decision
The district court, which had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343(a)(3), dismissed Johnson’s
complaint with prejudice for failure to state a claim.’
' Johnson sued Cook County officials Phelan and
Charnogorsky and prison officials Sheahan, Fairman, and
Estrada in their individual and official capacities. Johnson
does not dispute the dismissal of his claims against the Cook
County officials and against prison officials in their official
capacities; only the claims against prison officials in their
personal capacities are at issue.
me. Cte die 8 Ante pte > ES _———er
“ agian pias
5
The district court recognized that prisoners have a
“legitimate privacy interest in shielding their unclothed
bodies from view by members of the opposite sex.” App.,
infra, 29a. But, failing to accord the usual leeway to prisoner
complaints drafted without the assistance of counsel and in
any event mischaracterizing Johnson’s allegations, the court
held that the complaint alleged only “incidental and inadver-
tent” observation. /bid. The court concluded that in those
circumstances Johnson’s privacy interests were minimal
and—without having heard any evidence—that they were out-
weighed by the prison’s need for securtty as well as by the
right of women guards to equal employment opportunities.
Id. at 29a-30a.
3. The Court of Appeals’ Decision
Unlike the district court, the Seventh Circuit, which had
jurisdiction pursuant to 28 U.S.C. § 1291, squarely faced the
allegation in Johnson's complaint that cross-sex monitoring
in Cook County Jail was deliberate and occurred on a routine
basis. Over Judge Posner’s dissent, the court held that
prisoners and pretrial detainees have no constitutionally
cognizable interest in not being routinely observed undressed,
defecating, and urinating by guards of the opposite sex.
a. The Seventh Circuit held that under Hudson v.
Palmer, 468 U.S. 517 (1984), and Bell v. Wolfish, 441 U.S.
520 (1979), Johnson failed to state a Fourth Amendment
claim. Taken together, the court believed, those decisions
mean that no form of observation of prisoners or pretrial
detainees can constitute an unreasonable search. Guards may
“watch and regulate every detail” of prisoners’ lives under
Hudson, the majority reasoned; and Wolfish upholds the
reasonableness of (same sex) body cavity searches of pretrial
detainees. App., infra, 2a-3a.
Judge Posner agreed with the majority that under
Hudson the Fourth Amendment is inapplicable to searches
6
within prisons. App., infra, 15a. He disagreed, however,
with the majority’s view that Wolfish speaks to the issue of
whether routine cross-sex monitoring raises any constitu-
tionally cognizable claim. Even though a pretrial detainee
may occasionally be subjected to a body cavity search
performed by a guard of the same sex as the detainee, it does
not follow, Judge Posner reasoned, “that no constitutional
issue is raised if the search is performed by a male guard on
a female prisoner, or a female guard on a male prisoner:
** * or if what is being watched is the prisoner’s genitalia
rather than the interior of his [or her] rectum.” Jd. at 19a.
b. The court of appeals held that because Johnson could
not assert a Fourth Amendment claim, he was also precluded
from claiming a violation of his right to privacy. Citing
Graham v. Connor, 490 U.S. 386 (1989), and Albright v.
Oliver, 510 U.S. 266 (1994), the court held that prisoners
cannot “substitute” a privacy claim for a Fourth Amendment
claim, because substantive due process “does not trump the
fourth amendment.” App., infra, 3a-4a. Moreover, the court
maintained, “privacy” is not a useful legal framework to be
applied to prisoners’ interests in hiding their bodies from the
view of guards of the opposite sex because it “has too many
other connotations.” Jd. at 3a.
In addition, the court stated, cross-sex monitoring
survives a substantive due process challenge under Turner v.
Safley, 482 U.S. 78 (1987), because it is “reasonably related
to legitimate penological interests”: facilitating the surveil-
lance of prisoners and allowing female guards “to participate
in the normal activities of guarding.” However, on the
record in this case, which is limited to the pleadings, the
court could not examine whether changes could readily be
made to increase prisoner privacy without compromising
security Or women guards’ career opportunities. Rather, it
emphasized the deference owed to decisions made by prison
administrators. App., infra, 4a.
7
Judge Posner agreed that the legal concept of “privacy”
is too “remote” from the ordinary meaning of the word to be
useful in analyzing Johnson’s claims. He thought the parties’
references to the “right of privacy” understandable, however,
because “[c]ountless cases, including our own * * * have
done the same thing.” App., infra, 15a, citing Canedy v.
Boardman, 16 F.3d 183 (7th Cir. 1994); Cornwell v.
Dahlberg, 963 F.2d 912, 916-917 (6th Cir. 1992); Cookish
v. Powell, 945 F.2d 441, 446 (1st Cir. 1991); and Cumbey
v. Meachum, 684 F.2d 712 (10th Cir. 1982).
c. Finally, the court held that Johnson failed to state a
claim for violation of the Eighth Amendment prohibition
against cruel and unusual punishments. According to the
majority, Johnson had not alleged the “demanding mental-
state component” of the Eighth Amendment—that defendants
“want{ed] to injure the prisoner or [knew] of and disre-
garded] a substantial risk that harm w/(ould] befall the
prisoner.” App., infra, 8a. While Johnson had adequately
alleged that cross-sex observation was deliberate, the court
ruled, he had not contended that prison officials adopted the
practice in order to injure or humiliate him. /d. at 8a-9a.
Moreover, cross-sex surveillance does not involve “unneces-
sary and wanton infliction of pain,” but allows prisons to use
staff efficiently and to avoid making sex a criterion of
employment. Jd. at 5a-6a.
Dissenting, Judge Posner would have remanded the case
for fact finding because the Eighth Amendment requires “that
reasonable efforts be made to prevent frequent, deliberate,
gratuitous exposure of nude prisoners of one sex to guards of
the other sex.” App., infra, 19a. Noting the strength of “the
nudity taboo” in the United States, Judge Posner would have
recognized that the exposure of naked prisoners to guards of
the opposite sex may be a cruel and unusual psychological
punishment. Jd. at 14a-16a.
8
Judge Posner complained that parading naked prisoners
before guards of the opposite sex marks them as “a type of
vermin, devoid of human dignity and entitled to no respect.”
App., infra, 13a. He warned against exaggerating the
“distance between [prisoners and] ‘us,’ the lawful ones, the
respectable ones,” observing that the inmate population
numbers 1.5 million; that a larger fraction of the population
has spent time in jail at some point in their lives; and that
among those in jail are pre-trial detainees who have not been
convicted of a crime, the innocent, those convicted of minor
offenses, and those whose crimes involved no evil intent.
Judge Posner refused to deny this “non-negligible fraction of
the American population * * * the rudiments of humane
consideration.” Jd. at 13a-14a.
Judge Posner rejected as baseless “hyperbole” the
majority’s assertion (unsupported by any factual record) “that
a decision for Johnson would mean that ‘female guards are
shuffled off to back office jobs.’” App., infra, 19a. He
pointed out that, in any event, the statutory protections of
Title VII cannot “override the Constitution,” nor can the
equal protection clause “license the infliction of cruel and
unusual punishments.” /d. at 17a.
Judge Posner also objected that the majority had con-
fused “motive and intent.” The cruel and unusual punish-
ments clause prohibits more than sadistically motivated inflic-
tions. The “deliberate indifference” component of an Eighth
Amendment claim is simply the “deliberate adoption of a
measure that constitutes cruel and unusual punish-
ment”—which Johnson had fairly alleged. App., infra, at
20a-22a. Cross-sex monitoring satisfies the requirement of
deliberateness if prison officials know that they are subjecting
prisoners to “gratuitous humiliation,” even if they are “not
actuated by any punitive purpose.” /d. at 21a.
9
Although agreeing with the majority that “the hard
choices made by prison administrators” are entitled to
respect, Judge Posner pointed out that “[tJhere is no record”
and hence “no basis * * * for supposing that such a choice
was made here, or for believing that an effort to limit cross-
sex surveillance would involve an inefficient use of staff.”
App., infra, 22a. Judge Posner concluded that “ijt would be
nice to know a little more about the facts before making a
judgment that condones barbarism,” and would have remand-
ed the case to the district court to develop the record. /bid.
d. Johnson moved for rehearing en ba.c. With Judges
Flaum and Rovner recused, that motion was denied by a vote
of six to four. App., infra, 23a-24a.
REASONS FOR GRANTING THE PETITION
In conflict with the majority of circuits, the Seventh
Circuit held in this case that deliberate, routine surveillance
of pre-trial detainees and prisoners when they are undressed,
showering, defecating, or urinating, conducted by corrections
officers of the opposite sex, implicates no interests protected
by the Fourth Amendment or the constitutional right to
privacy and hence does not have to be shown to be reason-
able. Nor, the majority held, does cross-gender surveillance
of prisoners engaged in intimate bodily functions raise Eighth
Amendment concerns, except in the improbable event that
“defendants adopted their [surveillance] policy to cause
injury.” App., infra, 9a. According to the court, then, cross-
gender observation raises no constitutional issue; in the
Seventh Circuit it “is lawful per se.” Jd. at 18a.
The question presented is “whether a prisoner has an
interest that the Constitution protects in hiding his naked
body from guards of the opposite sex” (App.., infra, 15a)—an
interest that would have prevented dismissal of this suit on
the pleadings before any evidence about the reasonableness
of Cook County Jail’s practices had been gathered. Both
rie
10
opinions below acknowledge that the courts of appeals are
divided on that question. /d. at 7a-8a, 15a, 18a-19a. Both
opinions note that circuits holding that cross-gender obser-
vation implicates the Constitution disagree about the source
of this protection. Jd. at 5a, 7a-8a, 15a-19a. And the
opinions evidence a deep division concerning the meaning of
this Court’s precedents, which the majority believed doom
petitioner’s claim (id. at 3a) but which the dissent—like
courts in other circuits—thought inconclusive.
The question presented is ripe for this Court’s review.
It is a recurring issue in the lower courts, as demonstrated by
the plethora of reported appellate decisions (which are only
the tip of the iceberg). It is an issue on which, incontestably,
there is a direct circuit split, with the Seventh Circuit
standing alone in answering the question no. And it is an
issue on which the courts of appeals are in considerable
analytic disarray, unable to agree whether a prisoner’s right
to be free from unnecessary cross-sex surveillance is located
in the Fourth Amendment, in a “right to privacy,” or (as
Judge Posner would hold) only in the Eighth Amendment.
This Court should grant certiorari to settle the circuit split
and provide much needed guidance to the lower courts on
common but perplexing questions that consume considerable
judicial and governmental resources.
I. THE SEVENTH CIRCUIT’S DECISION CON-
FLICTS WITH NUMEROUS RULINGS OF OTHER
COURTS OF APPEALS
Many circuits have addressed cross-gender surveillance
or search claims brought by prisoners under Section 1983.
With the exception of the Seventh Circuit in this case, not
one has held that prisoners lack a constitutionally cognizable
interest in being free from intrusions into their bodily privacy
by corrections employees of the opposite sex. Each Circuit
to consider the issue has either explicitly held that prisoners
11
have constitutional rights that are implicated by deliberate
and routine cross-sex monitoring, or has at least assumed that
prisoners retain such rights and accordingly has inquired into
the needs of prison administrators to determine if some
modification of prison practices is constitutionally required.’
Thus, the First, Second, Fourth, Sixth, Ninth, Tenth,
and Eleventh Circuits have all recognized that routine cross-
gender viewing of naked, showering, defecating, or urinating
prisoners triggers constitutional scrutiny. See, e.g., Cookish
v. Powell, 945 F.2d 441, 446-447 (ist Cir. 1991) (constitu-
tional privacy rights are implicated “when guards of the
opposite sex regularly observe [inmates] engaged in personal
activities, such as undressing, showering, and using the
toilet,” but not by “inadvertent, occasional, casual, and/or
restricted observations”); Forts v. Ward, 621 F.2d 1210,
1214 (2d Cir. 1980) (assuming that “the nighttime viewing
of completely or partially unclothed women inmates by male
prison guards” infringes constitutional privacy rights);
Strickler v. Waters, 989 F.2d 1375, 1387 (4th Cir. 1993)
(“when not reasonably necessary, exposure of a prisoner's
genitals to members of the opposite sex violates his constitu-
tional rights”); Cornwell v. Dahlberg, 963 F.2d 912, 916
(6th Cir. 1992) (“this Circuit has joined others in recognizing
2 Some cases cited in this section, such as Jordan v.
Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc), involve
surveillance of female prisoners by male guards. There is no
reason why the constitutional analysis of cross-sex surveil-
lance claims should be different depending on the gender of
the prisoner. Certainly, as Judge Posner observed, the
discussion in the Seventh Circuit’s opinion in this case
implies “that female inmates have no constitutionally protect-
ed interest in not being seen in the nude by male guards.”
App., infra, 18a.
12
that a convicted prisoner maintains some reasonable expecta-
tions of privacy while in prison, particularly where * * *
related to forced exposure to strangers of the opposite sex”);
Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988)
(prisoners “retain a limited right to bodily privacy” that
encompasses “(sJhielding one’s unclothed figure from the
view of * * * strangers of the opposite sex”); Cumbey v.
Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (privacy
rights are implicated when “guards regularly watch inmates
of the opposite sex who are engaged in personal activities,
such as undressing, using toilet facilities, or showering”);
Hardin v. Stynchcomb, 691 F.2d 1364, 1373 (11th Cir.
1982) (“inmates’ retained privacy rights may be unnecessari-
ly invaded by having deputies of the opposite sex * * *
oversee use of toilet and shower facilities”).’
3 Until this case, the Seventh Circuit took the same
position. See Canedy v. Boardman, 16 F.3d 183, 186-187
(7th Cir. 1994); Torres v. Wisconsin Dep't of Health & Soc.
Servs., 859 F.2d 1523, 1526, 1528 (7th Cir. 1988); Smith v.
Fairman, 678 F.2d 52, 53-55 (7th Cir. 1982). The majority
distinguished Canedy on the ground that it concerned cross-
gender tactile searches. App., infra, at 7a. But the court's
reasoning here leaves no room for constitutional claims based
on tactile searches either. And the majority in any event
misread Canedy. The prisoner in Canedy (whom counsel of
record represented on appeal) alleged in a separate count that
routine cross-gender surveillance violated his privacy rights.
The Seventh Circuit reversed the district court’s dismissal of
that surveillance count, squarely holding that it stated a
claim. See 16 F.3d at 187 (while occasional and inadvertent
sightings of naked male inmates by female prison guards do
not violate the inmates’ right to privacy, “that right is
violated where this observation is * * * a regular occur-
rence”) (emphasis added).
13
The courts of appeals differ as to the source of
prisoners’ constitutional interests in avoiding cross-gender
surveillance. Because “[o]bservation is a form of search”
(App., infra, 2a), some courts of appeals, in direct conflict
with the ruling of the Seventh Circuit here, hold that prison-
ers have a constitutionally cognizable Fourth Amendment
privacy interest in not being routinely monitored in intimate
circumstances by guards of the opposite sex, infringement of
which triggers a factual inquiry into the reasonableness of the
practice. Typical of these decisions is Kent v. Johnson, 821
F.2d 1220, 1221 (6th Cir. 1987), adhered to after reconsider-
ation in light of Turner v. Safley (482 U.S. 78 (1987)), 821
F.2d 1229. In Kent, the Sixth Circuit reversed dismissal of
a male prisoner’s Fourth Amendment complaint challenging
a prison practice that allowed “female guards to view him
performing necessary bodily functions in his cell and to view
his naked body in the shower area.” In stark contrast to the
majority in this case, the Sixth Circuit observed (id. at
1226):
Perhaps it is merely an abundance of common
experience that leads inexorably to the conclusion
that there must be a fundamental constitutional right
to be free from forced exposure of one’s person to
strangers of the opposite sex when not reasonably
necessary for some legitimate, overriding reason,
for the obverse would be repugnant to notions of
human decency and personal integrity.
The Ninth Circuit likewise recognizes that prisoner suits
alleging that cross-gender surveillance violates the Fourth
Amendment state a claim and require some factual inquiry
into the justifications for the practice. E.g., Michenfelder,
860 F.2d at 334 (noting that “[oJur circuit’s law respects an
incarcerated prisoner’s right to bodily privacy”; we “analyze
[plaintiff's Fourth Amendment claim] by using Turner v.
Safley’s rational relationship test”). And the First Circuit
”
14
held in Cookish, 945 F.2d at 447, that by October 1987 the
law was clear that “observations of an inmate’s naked body
by a guard of the opposite sex * * * other than inadvertent,
occasional, casual, and/or restricted * * * observation would
(in all likelihood) violate the Fourth Amendment”).
Other courts of appeals’ decisions, equally at odds with
the Seventh Circuit’s ruling here, locate a prisoner’s right to
be free from unreasonable cross-sex monitoring in the
constitutional “right to privacy.” These cases include, for
example, in the Fourth Circuit, Lee v. Bratten, 1994 U.S.
App. LEXIS 20669, at *9 (4th Cir. Aug. 8, 1994) (viewing
of prisoners “while they are undressed by guards of the
opposite sex when not reasonably necessary” violates “‘their
right of privacy’”), Strickler, 989 F.2d at 1387, and Lee v.
Downs, 641 F.2d 1117, 1120 (4th Cir. 1981); in the Tenth
Circuit, Cumbey, 684 F.2d at 713-714 (holding that a prison-
er’s suit alleging “that female prison guards * * * are
assigned to posts where they observe him dressing and
undressing and using the toilet and the shower” stated a
claim that his “constitutional rights to privacy are being
violated”); and, in the Eleventh Circuit, Fortner v. Thomas,
983 F.2d 1024, 1026-1027, 1030 (11th Cir. 1993) (electing
“to join other circuits in recognizing a prisoner’s constitu-
tional right to bodily privacy because most people have ‘a
special sense of privacy in their genitals, and involuntary
exposure of them in the presence of people of the other sex
may be especially demeaning and humiliating’”). See also
Smith, 678 F.2d at 53, 55 (case law holds that “inmates do
have some right to avoid unwanted intrusions by persons of
the opposite sex” and locates that right in “the Fourth
Amendment guarantee of freedom from unreasonable
searches or the more general right of personal privacy”).
In addition, at least one court of appeals explicitly
disagrees with the Seventh Circuit majority’s position that
cross-sex searches do not violate a prisoner’s Eighth Amend-
15
ment right to be free of cruel and unusual punishment. In
Jordan v. Gardner, 986 F.2d at 1522, the en banc Ninth
Circuit held that “a policy that requires male guards to
conduct random, non-emergency, suspicionless clothed body
searches on female prisoners” violates the Eighth Amend-
ment. As Judge Posner pointed out in his dissent, “[w]hat
Johnson alleges is worse” than the invasion of privacy held
to run afoul of the Eighth Amendment in Jordan. App.,
infra, 19a.
Under each of these approaches, courts have inquired
into the reasonableness of prison arrangements that result in
routine cross-gender monitoring, including the availability of
alternative arrangements that would eliminate or reduce
invasions of prisoner privacy while also serving prison needs.
See Wolfish, 441 U.S. at 559 (Fourth Amendment “test of
reasonableness * * * requires a balancing of the need for the
particular search against the invasion of personal rights that
the search entails”); Turner, 482 U.S. at 90-91 (the existence
of “an alternative that fully accommodates the prisoner's
rights at de minimis cost to valid penological interests” is
“evidence that the regulation does not satisfy the reasonable
relationship standard”). Courts applying this balancing test to
determine the constitutionality of cross-gender surveillance
recognize that “[rjesolution of such cases requires a careful
inquiry as to whether the competing interests can be satisfac-
torily accommodated before deciding whether one interest
must be vindicated to the detriment of the other.” Forts v.
Ward, 621 F.2d 1210, 1212 (2d Cir. 1980).
This inquiry is not at all unmanageable. After balancing,
courts sometimes require changes in particular prison
practices (¢.g., Jordan, 986 F.2d at 1531); and sometimes
they find that, in all the circumstances, no changes are neces-
sary. E.g., Timm v. Gunter, 917 F.2d 1093, 1101-1102 (8th
Cir. 1990). Often, all the competing interests at stake can be
accommodated. Thus, “[t]he majorit of courts addressing
A = _ —
16
the issue of inmate privacy have granted relief to inmates
without denying employment to guards of the opposite sex.”
Note, Balancing Inmates’ Right to Privacy with Equal
Employment for Prison Guards, 4 Women’s Rights L. Rep.
243, 248 (1978). The factual inquiry that was short circuited
by dismissal in this case has enabled most courts to find “a
viable solution to the difficult problem of balancing the
interests of all the parties involved.” Comment, Sex Discrim-
ination in Prison Employment: The Bona Fide Occupational
Qualification and Prisoners’ Privacy Rights, 65 lowa L. Rev.
428, 445 (1980).
The Seventh Circuit’s ruling in this case is sharply in
conflict with decisions in a majority of circuits and leaves
pre-trial detainees and prisoners confined in Illinois, Indiana,
or Wisconsin considerably worse off than their counterparts
elsewhere in the Nation. There is no justification for this
disparity in treatment. Nor is there any reason why a direct
circuit split as to this recurring constitutional issue should be
tolerated. The question presented has percolated through the
lower courts for well over a decade, producing a confusion
of different analytic approaches and consuming an enormous
quantity of judicial, governmental, and private resources. It
is time for this Court to intervene.
Il. THE SEVENTH CIRCUIT’S DECISION IS WRONG
The Seventh Circuit erred in depriving prisoners of any
right to be free from unreasonable cross-sex surveillance
while dressing and undressing, showering, defecating, and
urinating. As a majority of circuits recognize, routine cross-
sex monitoring is too great an affront to dignity—too
“degrading,” “brutalizing,” and dehumanizing—to escape
constitutional scrutiny. App., infra, 13a; see York v. Story,
324 F.2d 450, 455 (9th Cir. 1963) (“[W]e cannot conceive
of a more basic subject of privacy than the naked body. The
desire to shield one’s unclothed figure from view of strang-
17
ers, and particularly strangers of the opposite sex, is im-
pelled by elementary self-respect and personal dignity”).
“(T]he wearing of clothes is * * * a mark of man’s distinc-
tive dignity” (R. Posner, Sex and Reason 226 (1992));
violating that widely-shared, religiously-endorsed, and still
very strong taboo on nudity unjustifiably reduces prisoners
to a status “no better than animals.” Jd. at 14a.*
The Constitution protects prisoners from affronts to their
dignity and humanity of the sort alleged by petitioner. Prison
practices that result in routine cross-sex surveillance of naked
prisoners engaged in intimate personal functions survive
Fourth and Eighth Amendment scrutiny only if they are
reasonable and no less intrusive, non-disruptive alternative
that meets prison needs is readily, inexpensively available.
Turner, 482 U.S. at 90-91. There is no factual record in this
case; hence there was no way for the courts below to
determine, on a motion to dismiss, if that reasonableness
standard was satisfied.
4 Evidence that society recognizes the especially intru-
sive and demeaning nature of cross-sex surveillance is to be
found in prison regulations, which frequently prohibit or
limit the practice. Indeed, Illinois Department of Corrections’
regulations governing Cook County Jai! provide that “super-
vision shall be provided by a person of the same sex * * *
[dJuring periods of personal hygiene activities and care such
as showers, toileting, and related activities.” 20 Ill. Admin.
Code § 701.20(b)(1)(D) (1985 & Supp.).
18
A. The Seventh Circuit Erred In Relying On Wolfish
And Hudson To Dismiss Petitioner’s Fourth Amend-
ment Claim
Prisoner surveillance, the court below recognized, is “a
form of search.” App., infra, 2a. It therefore falls within the
literal scope of the Fourth Amendment. Prisoners continue to
enjoy Fourth Amendment protections that are “not fundamen-
tally inconsistent with imprisonment itself or incompatible
with the objectives of incarceration.” Hudson v. Palmer, 468
U.S. at 523. This Court has never held that a right not to be
subjected to unreasonable cross-gender surveillance is per se
inconsistent with the goals of incarceration. And, with the
exception of the Seventh Circuit in this case, the courts of
appeals have rejected the notion that no “‘justifiable’ expecta-
tion of privacy is at stake” when such surveillance occurs.
Id. at 525; see Section I, supra.
The Seventh Circuit erred in concluding that Hudson and
Bell v. Wolfish, taken together, preclude all Fourth Amend-
ment claims of unreasonable searches made by prisoners.
App., infra, 3a. Those decisions may condone “constant
vigilance” over inmates, as the majority asserted (ibid.), but
they cannot fairly be said to speak to the claim made by
petitioner.
Wolfish found occasional same-sex body cavity searches
reasonable; it did not address cross-gender searches at all.
The majority assumed that Wolfish covered the monitoring
challenged here because it judged body cavity searches to be
“a substantially greater intrusion” than cross-gender monitor-
ing. App., infra, 6a. But daily observation of prisoners while
dressing and undressing, showering, and using the toilet by
guards of the opposite sex raises different constitutional
concerns than occasional same-sex body cavity searches. As
Judge Posner put it (id. at 19a):
19
It does not follow [from Wolfish] that no constitutional
issue is raised if the search is performed by a male guard
on a female prisoner; or a female guard on a male
prisoner * * * or if what is being watched is the prison-
er’s genitalia rather than the interior of his rectum.
On its face, Hudson does not speak to cross-sex monitor-
ing either. In Hudson, a prisoner challenged the reasonable-
ness of a search of possessions kept in his cell. Reasoning
that it would be “literally impossible” for prisons to maintain
security “if inmates retained a right of privacy in their cells”
(468 U.S. at 527), this Court held that “the Fourth Amend-
ment proscription against unreasonable searches does not
apply within the confines of the prison cell.” Id. at 526
(emphasis added); see also id. at 538 (O’Connor, J., concur-
ring) (arrest abates “privacy and possessory interests in
personal effects” and therefore, searches “of the contents of
an inmate’s cell” are reasonable).
Thus, the courts of appeals consistently limit Hudson to
cell searches and hold that surveillance and other searches of
prisoners’ bodies are properly subjected to Fourth Amend-
ment scrutiny. See, e.g., Cornwell, 963 F.2d at 916, and
Kent, 821 F.2d at 1221 (Sixth Circuit); Cookish, 945 F.2d at
446 (First Circuit); Michenfelder, 860 F.2d at 332 (Ninth
Circuit). For example, the Second Circuit in Covino v.
Patrissi, 967 #.2d 73, 78 (2d Cir. 1992), held that Hudson
prohibited a Fourth Amendment claim “with respect to
prison spaces,” but that prisoners “retain a limited right to
bodily privacy” that protects them from unreasonable
searches.
Neither Wolfish nor Hudson individually hold that
prisoners lack a constitutional right protecting them from
unreasonable searches of their bodies. Nor is it apparent,
except to the Seventh Circuit, how they together preclude a
Fourth Amendment claim relating to cross-gender surveil-
20
lance. The usual Fourth Amendment reasonableness princi-
ples should apply.°
B. The Seventh Circuit Erred In Holding That Cross-Sex
Monitoring Cannot Violate The Eighth Amendment
The court of appeals also erred in holding that Johnson’s
complaint did not adequately allege an Eighth Amendment
violation. The majority’s error stemmed from misapplying
the rule in Wilson v. Seiter, 501 U.S. 294 (1991), that only
a prison official who acts with “deliberate indifference” runs
afoul of the Eighth Amendment. The majority thought that
under Wilson and Whitley v. Albers, 475 U.S. 312 (1986),
the Eighth Amendment is violated only when a prison has
“inflicted pain pointlessly ,” and that the surveillance petition-
er alleged was not “pointless” because the court could
imagine nonpunitive justifications for it. App., infra, 5a-6a.
But as Judge Posner showed in his dissent, the “relevant
deliberateness” is not the motives of prison officials but
whether there was a “deliberate adoption” of a practice that
“constitutes cruel and unusual punishment.” Jd. at 20a.
Judge Posner correctly pointed out that a prison’s
disciplinary use of the thumbscrew and rack would constitute
5 Because of its context and purposes, cross-gender
surveillance in prison is most readily analyzed as a Fourth
Amendment search; there will usually be no reason to
analyze the practice under the general rubric of the “right to
privacy.” In any event, the Fourth Amendment’s reasonable-
ness standard may be little if any different from the inquiry
that would be conducted to adjudicate a substantive due
process privacy claim under Turner v. Safley. See 482 U.S.
at 89 (asking whether a regulation is “reasonably related to
legitimate penological interests,” in light of easily available
alternatives); Wolfish, 441 U.S. at 559 n.40.
21
cruel and unusual punishment even if the measure were
adopted “merely to maintain good order” or to “save
money.” App., infra, 20a. Likewise, when a prison adopts
a practice of “deliberately expos[ing]” naked prisoners to the
gaze of guards of the opposite sex—a “cruel and unusual
psychological punishment” (id. at 17a)—it is “irrelevant” if
the prison officials’ motive was merely to ease prison
administration. If prison officials know that cross-gender
surveillance subjects inmates to “gratuitous humiliation,” the
“infliction is deliberate,” reasoned Judge Posner, even if not
motivated by “punitive purpose.” /d. at 21a.
The majority’s reason for rejecting petitioner’s Eighth
Amendment claim on the pleadings was therefore in error.
As the Ninth Circuit held in Jordan, 986 F.2d at 1522,
cross-gender searches may violate the Eighth Amendment.
The court should have reversed the dismissal of petitioner's
claim and remanded for a factual inquiry into whether the
infliction of psychological pain through deliberate, routine
cross-sex monitoring was “unnecessary and wanton.”
Whitley, 475 U.S. at 320.
Of the numerous courts of appeals to have looked at this
issue, only the Seventh Circuit has concluded that prisoners
lack any constitutional right protecting them from deliberate,
routine, and unreasonable cross-sex monitoring while they
are undressed or engaged in intimate bodily functions.
Moreover, the majority’s inaccurate legal analysis has the
potential to muddy Fourth and Eighth Amendment law. This
Court should grant certiorari to resolve the clear circuit split
and to guide the lower courts as they face similar claims in
the future.
CONCLUSION
The petition for a writ of certiorari should be granted.
22
Respectfully submitted.
TIMOTHY S. BISHOP
Counsel of Record
JAMES C. SCHROEDER
DAVID J. FRANKLYN
TRACY M. FLYNN
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
Counsel for Petitioner
MAY 1996
APPENDICES
ee ER ee Ta ee ee cee EES TS
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No, 93-3753
ALBERT JOHNSON,
Plaintiff-Appellant,
v.
RICHARD J. PHELAN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 92 C 1943—James H. Alesia, Judge.
ARGUED AUGUST 1, 1995—DECIDED OCTOBER 24, 1995
Before: POSNER, Chief Judge, and PELL and
EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
Albert Johnson brought this suit under 42 U.S.C. § 1983.
According to his complaint, which the district court dismissed for
failure to state a claim on which relief may be granted, female
guards at the Cook County Jail are assigned to monitor male
prisoners’ movements and can see men naked in their cells, the
2a
shower, and the toilet. Johnson sought damages from persons
including the President of the Cook County Board and the
Chairman of the County’s Buildings and Zoning Commission.
Most of the defendants have no relation to the events of which
Johnson complains and were properly dismissed because § 1983
does not establish vicarious liability. See Houston v. Sheahan, 62
F.3d 902 (7th Cir. 1995). The district court also properly rejected
Johnson’s argument that different monitoring patterns ia different
cellblocks within the Jail violate the equal protection clause of the
fourteenth amendment. 1993 U.S. Dist. LEXIS 13681 (N.D. Ill.).
Johnson has abandoned on appeal any contention that monitoring
in the local courthouse lockup’s bathroom violates the Constitution.
But his argument that cross-sex monitoring in the Jail violates the
due process clause requires additional discussion in light of Canedy
v. Boardman, 16 F.3d 183 (7th Cir. 1994), which holds that a
right of privacy limits the ability of wardens to subject men to
body searches by women, or the reverse. Our case involves visual
rather than tactile inspections, and we must decide whether male
prisoners are entitled to prevent female guards from watching them
while undressed.
Observation is a form of search, and the initial question
therefore is whether monitoring is “unreasonable” under the fourth
amendment. So the Supreme Court conceived the issue in Bell v.
Wolfish, 441 U.S. 520 (1979), where a pretrial detainee argued
that routine inspections of his body cavities violated the Constitu-
tion. (Johnson also was a pretrial detainee at the time of the
events covered in his complaint, but in light of Wolfish he does not
argue that detainees have rights exceeding those of prisoners
following conviction.) The Court held that these searches are
“reasonable” because they are prudent precautions against smug-
gling drugs and other contraband into prison. 441 U.S. at 558-60.
Prisoners argued that metal detectors plus supervision of inmates’
contacts with outsiders would be superior to body-cavity inspec-
tions. The Court replied that prisons need not adopt the best
alternatives. 441 U.S. at 559-60 n.40. Less-restrictive-alternative
arguments are too powerful: a prison always can do something,
at some cost, to make prisons more habitable, but if courts assess
and compare these costs and benefits then judges rather than
wardens are the real prison administrators. Wolfish emphasized
th
I i al
3a
what is the animating theme of the Court’s prison jurisprudence for
the last 20 years: the requirement that judges respect hard choices
made by prison administrators. E.g., Sandin v. Conner, 115 S.
Ct. 2293, 2299-2300 (1995); O’Lone v. Estate of Shabazz, 482
U.S. 342, 349-50 (1987); Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 125 (1977); Wolff v. McDon-
nell, 418 U.S. 539, 561-63 (1974).
Wolfish assumed without deciding that prisoners retain some
right of privacy under the fourth amendment. Five years later the
Court held that they do not. Hudson v. Palmer, 468 U.S. 517,
526-30 (1984), observes that privacy is the thing most surely
extinguished by a judgment committing someone to prison.
Guards take control of where and how prisoners live; they do not
retain any right of seclusion or secrecy against their captors, who
are entitled to watch and regulate every detail of daily life. After
Wolfish and Hudson monitoring of naked prisoners is not only
permissible—wardens are entitled to take precautions against drugs
and weapons (which can be passed through the alimentary canal or
hidden in the rectal cavity and collected from a toilet bowl)—but
also sometimes mandatory. Inter-prisoner violence is endemic, so
constant vigilance without regard to the state of the prisoners’
dress is essential. Vigilance over showers, vigilance over
cells—vigilance everywhere, which means that guards gaze upon
naked inmates.
Johnson mentions the fourth amendment but ignores Wolfish
and Hudson.. His principal argument uses the due process clause;
and because he does not seek a hearing, he is invoking principles
of substantive due process. Yet courts should not reverse the
outcome of a fourth amendment analysis in the name of substantive
due process. Graham v. Connor, 490 U.S. 386 (1989), and
Albright v. Oliver, 114 §. Ct. 807 (1994), hold that substantive
due process is not an appropriate substitute for analysis under
provisions of the Constitution that address a subject directly, and —
in particular does not trump the fourth amendment. “Privacy” has
too many other connotations—from the right of reproductive
autonomy that has nothing to do with searches and seizures to the
common law right to control the publication of certain facts about
oneself, including the depiction of one’s naked body, see Haynes
v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229-30 (7th Cir.
4a
1993)—to be a useful substitute for the fourth amendment (or, as
we discuss below, the eighth).
What is more, moving ground from the fourth amendment to
the fifth would not help Johnson. Under the due process clause
the question is whether the regulation is “reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78,
89 (1987). Surveillance of prisoners is essential, as Wolfish
establishes. Observation of cells, showers, and toilets is less
intrusive than the body-cavity inspections Wolfish held permissible.
Guards do the surveillance. Male guards and female guards
too—for Title VII of the Civil Rights Act of 1964 opens prisons to
women and requires states to hire them unless sex is a bona fide
occupational qualification, a high standard of necessity. Dothard
y. Rawlinson, 433 U.S. 321 (1977); United States v. Gregory, 818
F.2d 1114 (4th Cir. 1987) (rejecting an argument that a desire to
curtail cross-sex monitoring of naked prisoners makes sex a bona
fide occupation qualification for prison guards); see also United
Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).
Unless female guards are shuffled off to back office jobs, itself
problematic under Title VII, they are bound to see the male
prisoners in states of undress. Frequently. Deliberately. Other-
wise they are not doing their jobs. Smith v. Fairman, 678 F.2d 52
(7th Cir. 1982), puts two and two together, holding that in light of
Title VII female guards are entitled to participate in the normal
activities of guarding, including pat-down searches of male
inmates. We held in Torres v. Wisconsin Department of Health &
Social Services, 859 F.2d 1523 (7th Cir. 1988) (en banc), a case
filed by guards under Title VII, that a state could exclude men
from one of its four prisons, in order to promote the female
prisoners’ rehabilitation. Torres did not say that the Constitution
requires this exclusion; instead we deferred to the judgment of
prison administrators that they needed to limit cross-sex monitoring
to achieve penological objectives. Today deference leads to the
opposite result: Cook County does not believe that cross-sex
monitoring imperils its mission, and evenhanded willingness to
accept prison administrators’ decisions about debatable issues
means that Johnson cannot prevail under the due process clause.
After holding in Hudson that prisoners lack any reasonable
expectation of privacy under the fourth amendment, the Court
t
:
Sa
remarked that a prisoner could use the eighth amendment to
overcome “calculated harassment unrelated to prison needs.” 468
U.S. at 530. Similarly, the Court observed in Graham that the
eighth amendment offers some protection supplementary to the
fourth. 490 U.S. at 392, 394. We therefore think it best to
understand the references to “privacy” in Canedy and similar cases
as invocations of the eighth amendment’s ban on cruel and unusual
punishments. See Jordan v. Gardner, 986 F.2d 1521 (9th Cir.
1993) (en banc), which makes explicit the role of that provision.
Johnson's complaint (and the brief filed on his behalf in this
court by a top-notch law firm) do not allege either particular
susceptibility or any design to inflict psychological injury. A
prisoner could say that he is especially shy—perhaps required by
his religion to remain dressed in the presence of the opposite
sex—and that the guards, knowing this, tormented him by
assigning women to watch the toilets and showers. So, too, a
prisoner has a remedy for deliberate harassment, on account of
sex, by guards of either sex. Johnson does not allege this or
anything like it. His case therefore does not present the sort of
claim that Hudson holds in reserve. It does not satisfy the more
general requirements of the eighth amendment either.
One who makes a claim under the cruel and unusual punish-
ments clause must show that the state has created risk or inflicted
pain pointlessly. “After incarceration, only the unnecessary and
wanton infliction of pain . . . constitutes cruel and unusual punish-
ment forbidden by the Eighth Amendment.” Whitley v. Albers,
475 U.S. 312, 319 (1986) (internal quotations omitted). See also
Rhodes v. Chapman, 452 U.S. 337 (1981); Wilson v. Seiter, 501
U.S. 294, 298-300 (1991); Helling v. McKinney, 113 S. Ct. 2475
(1993). Does cross-sex monitoring serve a function beyond the
infliction of pain? Monitoring is vital, but how about the cross-sex
part? For this there are two justifications.
First, it makes good use of the staff. It is more expensive for
a prison to have a group of guards dedicated to shower and toilet
monitoring (equivalently, a group that can do every function except
this) than to have guards all of whom can serve each role in the
prison. If only men can monitor showers, then female guards are
less useful to the prison; if female guards can’t perform this task,
6a
the prison must have more guards on hand to cover for them. It
is a form of featherbedding. O’Lone held that an interest in the
efficient deployment of the staff permits the prison to block
inmates from attending religious services, although religion has
powerful protection in the first amendment. Similarly, an interest
in efficient deployment of the staff supports cross-sex monitoring.
See Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990), which
concludes that “opposite-sex surveillance of male inmates,
performed on the same basis as same-sex surveillance,” is
constitutionally permissible. By the same token, the prison may
assign homosexual male guards to monitor male prisoners,
heterosexual male guards to monitor effeminate male homosexual
prisoners, and so on. There are too many permutations to place
guards and prisoners into multiple classes by sex, sexual orienta-
tion, and perhaps other criteria, allowing each group to be
observed only by the corresponding groups that occasion the least
unhappiness.
Second, cross-sex monitoring reduces the need for prisons to
make sex a criterion of employment, and therefore reduces the
potential for conflict with Title VII and the equal protection clause.
Cells and showers are designed so that guards can see in, to
prevent violence and other offenses. Prisoners dress, undress, and
bathe under watchful eyes. Guards roaming the corridors are
bound to see naked prisoners. A prison could comply with the
rule Johnson proposes, and still maintain surveillance, only by
relegating women to the administrative wing, limiting their duties
(thereby raising the cost of the guard complement), or eliminating
them from the staff.
To the riposte that Title VII and the equal protection clause
can’t authorize a violation of the eighth amendment, we rejoin:
True enough, but not pertinent. A warden must accommodate
conflicting interests—the embarrassment of reticent prisoners, the
entitlement of women to equal treatment in the workplace. A state
may reject the prisoner’s claim if it has a reason, as Wolfish
establishes for a substantially greater intrusion. The interest of
women in equal treatment is a solid reason, with more secure
footing in American law than prisoners’ modesty, leading to the
conclusion that there is no violation of the eighth amendment. We
held as much already in Smith v. Fairman. When interests clash,
7a
a judge must prefer those based on legislative decisions over those
that reflect their own views of sound policy. The premise of
judicial review is that the Constitution is an authoritative decision
binding on all branches of government; when it has only such
substance as judges pour into it themselves, the decisions of the
elected branches prevail. Canedy accordingly avowed reluctance
to do more than forbid cross-sex body searches, 16 F.3d at 187,
which it conceived as pointless debasement. Anonymous visual
inspections from afar are considerably less intrusive and carry less
potential for “the unnecessary and wanton infliction of pain”. To
the extent incautious language in Canedy implies that deliberate
visual inspections are indistinguishable from physical palpitations,
its discussion is dictum. Further reflection leads us to conclude
that it should not be converted to a holding.
How odd it would be to find in the eighth amendment a right
not to be seen by the other sex. Physicians and nurses of one sex
routinely examine the other. In exotic places such as California
people regularly sit in saunas and hot tubs with unclothed strang-
ers. Cf. Miller v. South Bend, 904 F.2d 1081 (7th Cir. 1990) (en
banc) (holding that there is a constitutional right to dance nude in
public), reversed under the name Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991). Most persons’ aversion to public nudity
pales compared with the taboo against detailed inspections of body
cavities, yet the Court found no constitutional obstacle ‘to these in
Wolfish; the Constitution does not require prison managers to
respect the social conventions of free society. Drug testing is
common, although this often requires observation of urination.
Vernonia School District 47] v. Acton, 115 S. Ct. 2386 (1995)
(drug testing of seventh grade boy as condition of participation in
sports is “reasonable” under the fourth amendment); see also
Dimeo v. Griffin, 943 F.2d 679, 682-83 (7th Cir. 1991) (en banc),
in which this court treated the imposition on privacy as slight.
More to the point, the clash between modesty and equal employ-
ment opportunities has been played out in sports. Women
reporters routinely enter locker rooms after games. How could an
imposition that male athletes tolerate be deemed cruel and unusual
punishment?
Some cases say that the Constitution forbids deliberate cross-
sex monitoring (as opposed to infrequent or accidental sightings).
8a
See Cornwell v. Dahlberg, 963 F.2d 912, 916-17 (6th Cir. 1992)
(basing this conclusion on the fourth amendment, but without
mentioning Hudson); Lee v. Downs, 641 F.2d 1117, 1120 (4th
Cir. 1981) (decided three years before Hudson). Decisions such
as Timm and Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985),
which hold that cross-sex monitoring is constitutional, could be
treated as fact-bound, although some of their language is unquali-
fied (we have quoted such a passage from Timm). Each empha-
sized that the female guards’ views were not universally unob-
structed. But if this is important (and we do not think it is),
Johnson’s own complaint brings the case within the scope of
Timm. Johnson alleges that
when a female correctional officer is assigned to work a dorm
it is her duty and responsibility to make counts, also to
constantly supervise all inmates in the dorms, making
periodic, unannounced spot checks of inmates in their living
area, and s[u]rveying in the remainder of the area such as the
general toilet, and shower facilities, which is in an open
unobstructed area, except by a thin sheet that can be seen
through.
Thus Johnson tells us that the Jail offers some, but imperfect,
shielding from guards’ observation, exactly the situation that the
eighth circuit held permissible in Timm. We agree with that
conclusion. See also Jordan v. Gardner, 986 F.2d at 1545-67
(Wallace, Wiggins, Trott & Kleinfeld, JJ., dissenting).
Any practice allowed under the due process analysis of Turner
is acceptable under the eighth amendment too—not only because
the objective component of cruel and unusual punishment is more
tolerant toward wardens, but also because the eighth amendment
has a demanding mental-state component. Farmer v. Brennan, 114
S. Ct. 1970 (1994), holds that the standard is criminal reckless-
ness. The guard or warden must want to injure the prisoner or
must know of and disregard a substantial risk that harm will befall
the prisoner. Johnson does not allege that any of the defendants
sought to humiliate him. Although he filed the complaint pro se,
his lawyer did not add this allegation to the brief and showed no
inclination to advance it when pressed at oral argument. Of
course, we must grant Johnson the benefit of all allegations in the
9a
complaint and everything he might prove consistent with that
document. Conley v. Gibson, 355 U.S. 41, 45-46 (1957);
Bartholet v. Reishauer A.G. (Zirich), 953 F.2d 1073, 1078 (7th
Cir. 1992). The district court assumed that the cross-sex viewing
was inadvertent, an inappropriate step when evaluating a complaint
under Rule 12(6)(6). But what Johnson wants to show is not that
the defendants adopted their policy to cause injury, but that they
ignored his sensibilities. He must believe it sufficient to show that
they acted deliberately.
Put the eighth amendment aside for a moment and consider
the question whether a “deliberate” decision—that is, a considered
choice with knowledge of the consequences—establishes “intent”
for purposes of constitutional provisions containing a mental-state
ingredient. That question has been before the Supreme Court
many times, and the answer is “no.” A good example is Person-
nel Administrator of Massachusetts v. Feeney, 442 U.S. 256
(1979), apropos because it deals with sex discrimination. Massa-
chusetts decided to give military veterans an absolute, life time
preference in employment. Approximately 98% of veterans are
male, and as a result the bureaucracy is overwhelmingly male. A
three-judge district court held the preference unconstitutional.
Recognizing that the equal protection clause forbids only disparate
treatment, and not disparate impact, see Washington v. Davis, 426
U.S. 229 (1976), the district court observed that people are
deemed to intend the natural and probable consequences of their
acts. Massachusetts adopted the preference deliberately, and it
maintained the preference after recognizing that it excluded many
qualified women from the civil service. The Supreme Court
acknowledged all of this but held that deliberate acts, with
knowledge of the consequences, do not establish “intent” in the
constitutional sense—for, if they did, then the distinction between
disparate treatment and disparate impact would collapse as soon as
anyone informed the decisionmaker of the impact. After a canvass
of its cases, the Court concluded:
“Discriminatory purpose” . . . implies more than intent as
volition or intent as awareness of consequences. It implies
that the decisionmaker . . . selected or reaffirmed a particular
course of action at least in part “because of,” not merely “in
spite of,” its adverse effects upon an identifiable group.
10a
442 U.S. at 279 (citation and footnotes omitted). Since Feeney the
distinction between choices made “because” the decisionmaker
wants to achieve particular consequences, and those “in spite of”
unwelcome effects, has been a siaple of constitutional law. See,
e.g., Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995).
Wardens make many choices that have unpleasant consequenc-
es for prisoners, and frequently wardens wish that they could do
things differently. Budgetary shortfalls may dictate that prisoners
live in cramped conditions, even though wardens know that
penological purposes would be better served by additional space.
The question whether a deliberate choice to put two prisoners in
a cell with only 100 square feet of space satisfied the intent
component of the eighth amendment came up in Wilson v. Seiter.
Prisoners alleged that the dilapidated facility had “overcrowding,
excessive noise, insufficient locker storage space, inadequate
heating and cooling, improper ventilation, unclean and inadequate
restrooms, unsanitary dining facilities and food preparation, and
housing [of regular inmates] with mentally and physically ill
inmates.” 501 U.S. at 296. The warden knew all about this, and
official decisions led to the problems—for example, the state spent
money on guards’ salaries rather than better food facilities. The
Court assumed that conditions at the prison fell below objectively
permissible standards but held that the prisoners had not demon-
strated the essential mental state.
To put this differently, the question in Wilson was whether the
mental-state requirement applies to systemic conditions, which
affect all prisoners. The Court answered yes, acknowledging that
this could perpetuate some unwelcome conditions:
The United States suggests that a state-of-mind inquiry might
allow officials to interpose the defense that, despite good-faith
efforts to obtain funding, fiscal constraints beyond their
control prevent the elimination of inhumane conditions. Even
if that were so, it is hard to understand how it could control
the meaning of “cruel and unusual punishment” in the Eighth
Amendment. An intent requirement is either implicit in the
word “punishment” or is not; it cannot be alternately required
and ignored as policy conditions might dictate.
sag, ne ee
=r LET
lla
501 U.S. at 301-02. “If the pain inflicted is not formally meted
Out as punishment by the statute or sentencing judge, some mental
element must be attributed to the inflicting officer before it can
qualify.” Jd, at 300 (emphasis in original). No intent to injure
means no “punishment”; and no “punishment,” no violation.
Let us test this with an illustration. Suppose the warden
decides to issue guns to the guards, a step that in the absence of an
ongoing riot violates contemporary norms because weapons create
risks. Prisoners may seize them and shoot the guards or each
other; guards may discharge them accidentally, injuring the
prisoners. The decision to issue the guns is deliberate, and
everyone knows that some injuries will follow. The warden hopes
that a reduction in violence within the prison will compensate for
the new risk. Can a prisoner obtain an injunction excluding guns
from the prison on the ground that the risk exceeds the anticipated
benefits? Or suppose the inevitable happens: a guard shoots a
prisoner. Has the warden violated the eighth amendment? The
answer from Whitley is “no,” because the warden did not want
harm to come to the prisoners and adopted the policy in an attempt
to reduce violence. The policy was not designed to punish anyone
and therefore, under Whitley, Wilson, and Farmer, does not violate
the eighth amendment. A warden displays “deliberate indiffer-
ence” only if he ignores the costs to prisoners, excluding them
from the calculus of costs and benefits, or if he allows guns into
the prison because he wants prisoners to suffer. An incorrect
assessment of recognized costs and benefits is just negligence,
which does not violate the fifth amendment (even if “gross,” see
Archie v. Racine, 847 F.2d 1211, 1218-20 (7th Cir. 1988) (en
banc)), and does not violate the eighth amendment either. Cf.
Collins v. Harker Heights, 503 U.S. 115 (1992) (public policies
that create risks for employees do not violate the Constitution,
even if the risks are taken knowingly); Walker v. Rowe, 791 F.2d
507 (7th Cir. 1986) (same principle, applied to risks that lead to
death of prison guards). Yet this gun policy is deliberate in the
same sense as the policy permitting cross-sex monitoring, and
injury is as predictable as the existence of embarrassed inmates.
Where does this leave us? The fourth amendment does not
protect privacy interests within prisons. Moving to other amend-
ments does not change the outcome. Cross-sex monitoring is not
12a
a senseless imposition. As a reconciliation of conflicting entitle-
ments and desires, it satisfies the Turner standard. It cannot be
called “inhumane” and therefore does not fall below the floor set
by the objective component of the eighth amendment. And
Johnson does not contend that his captors adopted their monitoring
patterns because of, rather than in spite of, the embarrassment it
causes some prisoners. He does not submit that the warden
ignored his sensibilities; he argues only that they received too little
weight in the felicific calculus. Like the district court, therefore,
we conclude that the complaint fails to state a claim on which
relief may be granted.
AFFIRMED.
POSNER, Chief Judge, concurring and dissenting. [| agree
with the district judge and my colleagues that Johnson's equal
protection claim has no possible merit, that there is no possible
basis for imputing liability to the president of the Cook County
Board of Commissioners, and that the claims against the defen-
dants in their official capacities must be dismissed as unauthorized
suits against the State of Illinois. That is where my agreement
ends.
The cruel and unusual punishments clause of the Eighth
Amendment to the United States Constitution, like so much in the
Bill of Rights, is a Rorschach test. What the judge sees in it is the
reflection of his or her own values, values shaped by personal
experience and temperament as well as by historical reflection,
public opinion, and other sources of moral judgment. No other
theory of constitutional interpretation can explain the elaborate
edifice of death-penalty jurisprudence that the Supreme Court has
erected in the name of the Eighth Amendment. Or the interpreta-
tion of the amendment as a charter, however limited, of the rights
of prisoners. The limitations imposed by the amendment might be
thought, indeed were thought for more than 150 years after the
amendment was adopted, to end with the sentence, leaving the
aaa “.
13a
management of prisons, the informal “punishment” meted out by
brutal guards, constitutionally unregulated.
The critical values, in giving content to the Eighth Amend-
ment, are those of the Justices of the Supreme Court. My
colleagues believe that the Justices have spoken to the issue
presented by this case. I think that they have not, and I shall try
to show this. But I want first to lay out the essential background
of facts and values on which I believe the judgment in this case
must ultimately turn.
There are different ways to look upon the inmates of prisons
and jails in the United States in 1995. One way is to look upon
them as members of a different species, indeed as a type of
vermin, devoid of human dignity and entitled to no respect; and
then no issue concerning the degrading or brutalizing treatment of
prisoners would arise. In particular there would be no inhibitions
about using prisoners as the subject of experiments, including
social experiments such as the experiment of seeing whether the
sexes can be made interchangeable. The parading of naked male
inmates in front of female guards, or of naked female inmates in
front of male guards, would be no more problematic than “cross-
sex surveillance” in a kennel.
I do not myself consider the 1.5 million inmates of American
prisons and jails in that light. This is a non-negligible fraction of
the American population. And it is only the current inmate
population. The fraction of the total population that has spent time
in a prison or jail is larger, although I do not know how large. A
substantial number of these prison and jail inmates, including the
plaintiff in this case, have not been convicted of a crime. They are
merely charged with crime, and awaiting trial. Some of them may
actually be innocent. Of the guilty, many are guilty of sumptuary
offenses, or of other victimless crimes uncannily similar to lawful
activity (gambling offenses are an example), or of esoteric
financial and regulatory offenses (such as violation of the migrato-
ry game laws) some of which do not even require a guilty intent.
It is wrong to break even foolish laws, or wise laws that should
carry only civil penalties. It is wrongful to break the law even
when the lawbreaker is flawed, weak, retarded, unstable, ignorant,
brutalized, or profoundly disadvantaged, rather than violent,
vicious, or evil to the core. But we should have a realistic
l4a
conception of the composition of the prison and jail population
before deciding that they are a scum entitled to nothing better than
what a vengeful populace and a resource-starved penal system
choose to give them. We must not exaggerate the distance
between “us,” the lawful ones, the respectable ones, and the prison
and jail population; for such exaggeration will make it too easy for
us to deny that population the rudiments of humane consideration.
The nudity taboo retains great strength in the United States.
It should not be confused with prudery, It is a taboo against being
seen in the nude by strangers, not by one’s intimates. Ours is a
morally diverse populace and the nudity taboo is not of uniform
strength across it. It is strongest among professing Christians,
because of the historical antipathy of the Church to nudity; and as
it happens the plaintiff alleges that his right “to practice Ch[r]istian
modesty is being violated.” The taboo is particularly strong when
the stranger belongs to the opposite sex. There are radical
feminists who regard “sex” as a social construction and the very
concept of “the opposite sex,” implying as it does the dichotomiza-
tion of the “sexes” (the “genders,” as we are being taught to say),
as a sign of patriarchy. For these feminists the surveillance of
naked male prisoners by female guards and naked female prisoners
by male guards are way stations on the road to sexual equality. If
prisoners have no rights, the reconceptualization of the prison as
a site of progressive social engineering should give us no qualms.
Animals have no right to wear clothing. Why prisoners, if they
are no better than animals? There is no answer, if the premise is
accepted. But it should be rejected, and if it is rejected, and the
duty of a society that would like to think of itself as civilized to
treat its prisoners humanely therefore acknowledged, then I think
that the interest of a prisoner in being free from unnecessary cross-
sex surveillance has priority over the unisex-bathroom movement
and requires us to reverse the judgment of the district court
throwing out this lawsuit.
I have been painting in broad strokes, and it is time to
consider the particulars of this case and the state of the precedents.
Albert Johnson, a pretrial detainee in the Cook County Jail,
complains that female guards were allowed to watch his naked
body while he showered and used the toilet. All we have is the
complaint, which my colleagues want to dismiss without giving
15a
Johnson a chance to develop the facts. The main issue raised by
the appeal is whether a prisoner has an interest that the Constitu-
tion protects in hiding his naked body from guards of the opposite
sex. A subordinate issue is whether, if so, the complaint—which
Johnson drafted without assistance of counsel—sufficiently alleges
deliberate as distinct from merely accidental exposure to survive
dismissal.
The parties have confused the first issue by describing it as
the extent of a prisoner’s “right of privacy.” They cannot be
criticized too harshly for this. Countless cases, including our own
Canedy v. Boardman, \6 F.3d 183 (7th Cir. 1994), have done the
same thing. E.g., Cornwell v. Dahlberg, 963 F.2d 912, 916-17
(6th Cir. 1992); Cookish v. Powell, 945 F.2d 441, 446 (Ist Cir.
1991) (per curiam); Cumbey v. Meachum, 684 F.2d 712 (10th Cir.
1982) (per curiam). The problem is that the term “right of
privacy” bears meanings in law that are remote from its primary
ordinary-language meaning, which happens to be the meaning that
a suit of this sort invokes. One thing it means in law is the right
to reproductive autonomy; another is a congeries of tort rights only
one of which relates to the naked body; still another is the right to
maintain the confidentiality of certain documents and conversa-
tions. Another and overlapping meaning is the set of interests
protected by the Fourth Amendment, which prohibits unreasonable
searches and seizures. That amendment has been held to be
inapplicable to searches and seizures within prisons, Hudson v.
Palmer, 468 U.S. 517, 526 (1984), and if applicable to jails
housing pretrial detainees as distinct from convicted defendants—an
unsettled question—is only tenuously so, Bell v. Wolfish, 441 U.S.
520, 556-57 (1979); Brothers v. Klevenhagen, 28 F.3d 452, 457
and n. 6 (Sth Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440 (Sth
Cir. 1993); United States v. Willoughby, 860 F.2d 15, 21 (2d Cir.
1988), though this may depend on the precise invasion complained
of. A unanimous Supreme Court heid in Winston v. Lee, 470 U.S.
753 (1985), that forcing a pretrial detainee to undergo surgery
violates the Fourth Amendment. Cf. Graham v. Connor, 490
U.S. 386, 395 n. 10 (1989); Hammer v. Gross, 932 F.2d 842, 845
n. | (9th Cir. 1991) (en banc).
One part of the tort right of privacy is the right to prevent the
publicizing of intimate facts, including the sight of the naked body.
16a
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229-30 (7th Cir.
1993). Even this right is not the basis of Johnson’s suit. This is
not a common law tort suit, and anyway the sight of his naked
body was not “publicized” in the sense that this term bears in the
law of torts. United States v. Dorfman, 690 F.2d 1230, 1234 (7th
Cir. 1982); Beverly v. Reinert, 606 N.E.2d 621, 626 (Ill. App.
1992); Restatement (Second) of Torts, § 652D, comment a (1977).
Whalen v. Roe, 429 U.S. 589 (1977), while holding that a
statute which required keeping a record of the names of people for
whom physicians prescribed certain dangerous though lawful drugs
did not invade any constitutional right of privacy, can be read to
imply that the disclosure by or under the compulsion of the
government of a person’s medical records might invade a constitu-
tional right of privacy, presumably a “substantive due process”
right. “Disclosure” of the person’s naked body might be argued
to violate a cognate right to the concealment of the body. In this
way a right to “privacy” in the rather literal sense in which it is
invoked here might laboriously be extracted from constitutional
precedent.
I consider this too tortuous and uncertain a route to follow in
the quest for constitutional limitations on the infliction of humilia-
tion on prison inmates. The Eighth Amendment forbids the federal
government (and by an interpretation of the due process clause of
the Fourteenth Amendment the states as well) to inflict cruel and
unusual punishments. The due process clause has been interpreted
to lay a similar prohibition on the infliction of cruel and unusual
punishments on pretrial detainees who, like Johnson, not having
been convicted, are not formally being “punished.” Bell v.
Wolfish, supra, 441 U.S. at 534-35; City of Revere v. Massachu-
setts General Hospital, 463 U.S. 239, 244 (1983). I take it that
purely psychological punishments can sometimes be deemed cruel
and unusual. Thomas v. Farley, 31 F.3d 557, 559 (7th Cir.
1994); Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988);
Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992);
Jordan v. Gardner, 986 F.2d 1521, 1530-31 (9th Cir. 1993) (en
banc); cf. McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992);
but see Wisniewski v. Kennard, 901 F.2d 1276 (Sth Cir. 1990)
(per curiam). The question is then whether exposing naked
prisoners to guards of the opposite sex can ever be deemed one of
17a
these cruel and unusual psychological punishments. The Sixth
Circuit held in Kent v. Johnson, 821 F.2d 1220, 1227 (6th Cir.
1987), that it can be, and did not retract the holding in its order on
rehearing, although it did retract any suggestion that cross-sex
surveillance was unconstitutional per se. See /d. at 1229. My
colleagues do not suggest that recasting Johnson’s right of privacy
claim as a claim under the Eighth Amendment can prejudice the
state. The substance of the analysis is unchanged, and the parties
in their briefs cite Eighth Amendment cases interchangeably with
right of privacy cases.
I have no patience with the suggestion that Title VII of the
Civil Right Act of 1964 forbids a prison or jail to impede,
however slightly, the career opportunities of female guards by
shielding naked male prisoners from their eyes. It is true that
since the male prison population is vastly greater than the female,
female guards would gain no corresponding advantage from being
allowed to monopolize the surveillance of naked female prisoners.
But Title VII cannot override the Constitution. There cannot be a
right to inflict cruel and unusual punishments in order to secure a
merely statutory entitlement to equal opportunities for women in
the field of corrections. Although the equal protection clause of
the Fourteenth Amendment has been held to protect women against
sex discrimination by a state, Trigg v. Fort Wayne Community
Schools, 766 F.2d 299, 302 (7th Cir. 1985); Gray v. Lacke, 885
F.2d 399, 414 (7th Cir. 1989); Day v. Wayne County Board of
Auditors, 749 F.2d 1199, 1205 (6th Cir. 1984), and the Cook
County jail is an arm of the State of Illinois, the clause is not
plausibly interpreted to license the infliction of cruel and unusual
punishments. Just as it would not be a defense to a charge that the
rack and thumbscrew are forms of cruel and unusual punishment
to demonstrate that they are cheaper than imprisonment, so it is
not a defense tc the infliction of cruel and unusual psychological
punishments that they advance women’s career opportunities. And
this is assuming that the interests of women would be advanced by
a rule, implicit in my colleagues’ decision, that gave no legal
protection to female prisoners from the prying eyes of male
guards; for Title VII and the equal protection clause are considered
to protect men as well as women from sex discrimination.
18a
This is not to say that exposing the naked male body to
women’s eyes constitutes cruel and unusual punishment in all
circumstances. A male prisoner has no constitutional right to be
treated by a male doctor. Cf. Dothard v. Rawlinson, 433 U.S.
321, 346 n. 5 (1977) (separate opinion); Gargiul v. Tompkins, 704
F.2d 661 (2d Cir. 1983), vacated on other grounds, 465 U.S. 1016
(1984). Men have long been attended in hospitals by female
nurses, and latterly by female doctors as well. Even the ‘right of
privacy” cases reject the suggestion that any time a female guard
glimpses a naked male prisoner his rights have been invaded. See,
e.g., Michenfelder v. Sumner, 860 F.2d 328, 335 (9th Cir. 1988);
Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985). Not
only is the injury from an occasional glimpse slight; but in
addition, as we can see when the “right of privacy” cases are
reclassified under the proper constitutional rubrics, neither the
Eighth Amendment nor the counterpart protections of pretrial
detainees under the due process clauses extend *~ unintentional
wrongs. Farmer v. Brennan, 114 S. Ct. 1970 (1994); Wilson v.
Seiter, 501 U.S. 294, 300 (1991); Murphy v. Walker, 51 F.3d
714, 719 (7th Cir. 1995) (per curiam); /vey v. Harney, 47 F.3d
181, 182 (7th Cir. 1995); Duckworth v. Franzen, 780 F.2d 645,
652 (7th Cir. 1985). Deliberately to place male prisoners under
continuous visual surveillance by female guards, however, so that
whenever the prisoner dresses or undresses, takes a shower, or
uses the toilet, a woman is watching him, gives even my col-
leagues pause.
Ours is the intermediate case, where the prison or jail makes
no effort, or a patently inadequate effort, to shield the male
prisoners from the gaze of female guards when the prisoners are
nude. No case holds that the surveillance of naked inmates by
guards of the opposite case is lawful per se—not Timm v. Gunter,
917 F.2d 1093, 1101-02 (8th Cir. 1990), and not Hudson v.
Palmer, supra, which held only that the right of privacy protected
by the Fourth Amendment does not extend to prisoners, and not,
as I shall show, Bell v. Wolfish. | infer from their discussion of
Torres v. Wisconsin Dept. of Health & Social Services, 859 F.2d
1523 (7th Cir. 1988) (en banc), that my colleagues believe that
female inmates have no constitutionally protected interest in not
being seen in the nude by male guards. This surprises me.
19a
Jordan v. Gardner, supra, is against this view, and no case
supports it.
I have stated the interest at issue in this case as not being seen
nude by a guard of the opposite sex, not only because most people
are more embarrassed in that situation but also because the right
of prisons and jails to maintain visual surveillance of potentially
dangerous prisoners even when naked cannot be doubted in light
of the serious security problems in many American prisons and
jails today. What is in question is the right of prison officials to
entrust the surveillance of naked prisoners to guards of the
opposite sex from the prisoners. Bell vy. Wolfish, supra, holds that
pretrial detainees may be subjected to digital and visual inspection
of the rectum for concealed weapons or other contraband. It does
not follow that no constitutional issue is raised if the search is
performed by a male guard on a female prisoner, or a female
guard on a male prisoner; or if the search is visual rather than
digital (it was both in Bell v. Wolfish); or if what is being watched
is the prisoner’s genitalia rather than the interior of his rectum.
Jordan v. Gardner, supra, 986 F.2d at 1522, holds that “a policy
that requires male guards to conduct random, non-emergency,
suspicionless clothed body searches on female prisoners,” violates
the Eighth Amendment. What Johnson alleges is worse, albeit
with the sexes reversed.
The Eighth Amendment requires in my view that reasonable
efforts be made to prevent frequent, deliberate, gratuitous exposure
of nude prisoners of one sex to guards of the other sex. I doubt
that any more precise statement of the proper constitutional test is
feasible. It is precise enough to show that my colleagues indulge
in hyperbole when they say that a decision for Johnson would
mean that “female guards are shuffled off to back office jobs.”
They would not be, but that is not the most important point. The
most important point is that sexual equality may not be pursued
with no regard to competing interests, and with an eye blind to
reality. The reality is that crime is gendered, and the gender is
male. Stephen J. Schulhofer, “The Feminist Challenge in
Criminal Law,” 143 University of Pennsylvania Law Review 2151
(1995). The vast majority of criminals are male. The vast
majority of their victims are male. The vast majority of police and
correctional officers are male. These are inescapable realities in
20a
the design of penal institutions and the validation of penal practic-
es.
My colleagues toy with the idea that unless the intentions of
the prison officials are in some sense punitive, there can be no
liability under the cruel and unusual punishments clause, whatever
the psychological impact of the prison’s actions. There is support
for this suggestion in language of some lower-court cases quoted
in Wilson v. Seiter, supra, 501 U.S. at 300. But I do not think
that that language was intended to override the distinction between
motive and intent. The cruel and unusual punishments clause is
not limited to sadistic inflictions, or, as my colleagues put it, to
cases in which “the state has created risk or inflicted pain point-
lessly” (my emphasis). The motives of prison officials and guards
are in fact irrelevant. The relevant deliberateness is the deliberate
adoption of a measure that constitutes cruel and unusual punish-
ment. If prison officials use the thumbscrew and rack to discipline
unruly prisoners, it is immaterial that their motive is not to punish
but merely to maintain good order in the prison, or to save money.
Id. at 301-02. The public beheadings of murderers by Saudi
Arabia are, I imagine, motivated not by sadism but rather (to the
extent that they have any secular motivation) by a belief that the
public infliction of cruel punishments minimizes the crime rate.
If prison officials deliberately expose male prisoners to the gaze of
female guards, or female prisoners to the gaze of male guards, it
should be irrelevant that the motive of the officials may have been
merely to avoid sorting custodial tasks by gender.
The distinction between motive and intent runs all through the
law. If someone plants a bomb in an airplane, his intent in the
eyes of the law is to kill, though his motive might be to intimidate
political opponents, obtain publicity, demonstrate skill with
explosives, collect life insurance on a passenger, or distract the
police from his other criminal activities. United States v. McAn-
ally, 666 F.2d 1116, 1119 (7th Cir. 1981). More to the point, the
distinction that | am emphasizing between motive and intent is
implicit in the standard of “deliberate indifference” which the
courts use to determine whether the state of mind required by the
Eighth Amendment is present. See, e.g., Wilson v. Seiter, supra,
501 U.S. at 303; Ivey v. Harney, supra, 47 F.3d at 182. That
standard is satisfied by proof of “actual knowledge of impending
2la
harm easily preventable,” Duckworth v. Franzen, supra, 780 F.2d
at 653—a formulation that dispenses entirely with any investigation
of motive. If prison officials know that they are subjecting male
prisoners to gratuitous humiliation, the infliction is deliberate, even
if the officials are not actuated by any punitive purpose and are not
even certain that humiliation will result. “[A}n eighth amendment
complainant need not show that a prison official acted or failed to
act believing that harm actually would befall an inmate; it is
enough that the official acted or failed to act despite his knowledge
of a substantial risk of serious harm.” Farmer v. Brennan, supra,
114 S. Ct. at 1981. The principal application of the standard of
deliberate indifference is to cases of medical care. If prison
officials, knowing that an inmate is seriously ill, refuse to provide
him with any treatment, the fact that their motive is not to punish
him but merely to save time and money is not a defense to his
Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97 (1976);
see also Wilson v. Seiter, supra, 501 U.S. at 302.
[ turn now to the question whether the complaint states a
claim for the infringement of the right that I have sketched. The
defendants appeal to the principle repeated in a number of recent
cases that although the Federal Rules of Civil Procedure require
only a short and plain statement of the plaintiff's claim, a plaintiff
who decides to write a prolix complaint risks pleading himself out
of court by alleging facts (which bind him as judicial admissions)
that negate an element of his claim. E.g., Warzon v. Drew, 60
F.3d 1234, 1239-40 (7th Cir. 1995); Esmail v. Macrane, 53 F.3d
176, 179 (7th Cir. 1995). The defendants fasten on the allegation
in the complaint that there was a “sheet” between the bathroom
(containing both showers and toilets) used by Johnson and other
male inmates and the area in which the guards are stationed. In
fact what Johnson alleged was that
when a female correctional officer is assigned to work a dorm
it is her duty and responsibility to make counts, also to
constantly supervise ail inmates in the dorms, making
periodic, unannounced spot checks of inmates in their living
area, and s[u}rveying in the remainder of the area such as the
general -toilet, and shower facilities, which is in an open
unobstructed area, except by a thin sheet that can be seen
through.
22a
This can fairly be read to allege that female guards assigned to
Johnson’s dorm are responsible for maintaining visual surveillance
of the bathroom, which they are able to do because it is separated
from the part of the dorm in which the guards are stationed by a
transparent “sheet,” perhaps a kind of shower curtain. So read,
the complaint is consistent with a form of cross-sex surveillance
sufficiently frequent, gratuitous, and deliberate to withstand
dismissal on the pleadings. A further factual inquiry is necessary
to determine whether Johnson’s constitutional rights have been
violated.
My colleagues say that we must respect “the hard choices
made by prison administrators.” I agree. There is no basis in the
record, however, for supposing that such a choice was made here,
or for believing that an effort to limit cross-sex surveillance would
involve an inefficient use of staff—“featherbedding,” as my
colleagues put it. There is no record. The case was dismissed on
the complaint. We do not know whether the Cook County Jail
cannot afford a thicker sheet or, more to the point, cannot feasibly
confine the surveillance of naked male prisoners to male guards
and naked female prisoners to female guards. We do not even
know what crime Johnson is charged with. My colleagues urge
deference to prison administrators, but at the same time speak
confidently about the costs of redeploying staff to protect John-
son’s rights. It would be nice to know a little more about the facts
before making a judgment that condones barbarism.
A True Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
23a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHICAGO, ILLINOIS 60604
January 29, 1996.
Before
Hon. RICHARD A. POSNER, Chief Judge
Hon. WILBUR F. PELL, JR., Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
ALBERT JOHNSON, Appeal from the United
Plaintiff-Appellant, States District Court
for the Northern
No. 93-3753 v. District of Illinois,
Eastern Division.
RICHARD J. PHELAN, ET AL..,
Defendants-Appellees.
i i
No. 92 C 1943
James H. Alesia, Judge
ORDER
Plaintiff-appellant filed a petition for rehearing and
suggestion of rehearing en banc on November 21, 1995. A judge
in regular active service has requested a vote on the suggestion of
rehearing en banc,* which failed to reach a majority,** and a
* Judge Flaum and Judge Rovner did not participate in the
decision of this case.
** Chief Judge Posner and Judges Cummings, Ripple and
Evans voted for rehearing en banc.
24a
majority*** of the judges on the panel have voted to deny
rehearing. The petition for rehearing is therefore DENIED.
*** Chief Judge Posner voted to grant rehearing.
25a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALBERT JOHNSON,
’ Plaintiff,
No. 92 C 1943
v. Hon. James H. Alesia
RICHARD J. PHELAN, et al.,
i i i ee
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, Albert Johnson, brought this complaint seeking
injunctive relief and damages from five Cook County officials.
Johnson, who was confined to the Cook County Jail at the time his
cause of action accrued, claims defendants violated his right to
personal privacy. This alleged invasion of Johnson’s privacy
occurred in two ways. First, Johnson claims the bathroom for
male pretrial detainees in the Cook County Criminal Courthouse
was equipped with a faulty partition that enabled female prison
guards and pretrial detainees to observe Johnson going to the
bathroom on those occasions when he had to be in the Courthouse
for court proceedings. Second, Johnson claims that, in the tier
where he was housed in the Cook County Jail, female correctional
officers were able to observe inmates in the shower.
Each of the five defendants in this case has filed a separate
motion to dismiss the plaintiff's pro se complaint. Since all of the
motions are essentially identical, the court will deal with them in
one opinion. The defendants claim, first, that they cannot be held
liable in their individual capacities because none of them were
involved in or had knowledge of the incidents described in the
26a
complaint; second, that they cannot be held liable in their official
capacities because Johnson has not alleged that the challenged
conditions were a result of an official policy or custom of the
County; and, third, that Johnson has not shown that his limited
right to privacy has been violated.
Johnson has responded to the motions filed by defendants
Sheahan, Fairman, Phelan, and Charnogorsky. Although the
docket reflects no response to defendant Estrada’s motion, the
court finds that Estrada stands in the same shoes as the other
defendants, and will accordingly resolve his motion along with the
others. Johnson claims that he sent a letter to Richard Phelan, the
Chairman of the Cook County Board, complaining about the bath-
room in the Courthouse. He further claims that Charnogorsky,
identified as the Cook County Commissioner for Buildings and
Zoning, approved the design of the faulty bathroom partition, and
thus had knowledge of the conditions challenged in the complaint.
In his response to Michael Sheahan and J.W. Fairman’s motions
to dismiss, Johnson contends that he filed an institutional grievance
over the showers in Cook County Jail, but received no response.
Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a claim may only be
dismissed if as a matter of law “it is clear that no relief could be
granted under any set of facts that could be proved consistent with
the allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989)
(quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).
For purposes of a 12(b)(6) motion, the court must accept all well-
pleaded facts as true, and any reasonable inferences drawn from
them must be viewed in the light most favorable to the plaintiff.
Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985),
cert. denied, 475 U.S. 1047 (1986).
Di "ab
This case involves two separate incidents which must be
analyzed separately. Johnson does not contend that Sheahan or
Fairman or Estrada had any responsibility for the bathroom in the
Courthouse. Likewise, Johnson does not seek to hold Phelan or
Charnogorsky responsible for the showers in the Jail. Therefore,
the court will discuss each incident independently of the other.
27a
The Courthouse Bathroom
With respect to the right to privacy, prisoners’ rights are
extremely limited. In fact, to a certain extent, imprisonment
extinguishes the right to privacy. See Bell v. Wolfish, 441 U.S.
520, 537 (1979) (“fI}loss of freedom of choice and privacy are
inherent incidents of confinement”). Nonetheless, prisoners do
retain some shred of bodily integrity. See Hudson v. Palmer, 468
U.S. 517, 528 (1983) (maliciously motivated searches ... of even
the most hardened criminals cannot be tolerated by a civilized
society”). Of course, Johnson at the time his cause of action
accrued was a pretrial detainee and not a convicted criminal. With
respect to personal privacy, however, Johnson’s status is irrele-
vant. Both pretrial detainees and convicted prisoners have a
legitimate expectation of privacy in the execution of certain basic
bodily functions. See e.g. Michenfelder v. Sumner, 860 F.2d 328,
333 (9th Cir. 1988) (“[s}hielding one’s unclothed figure from the
view of strangers, particularly strangers of the opposite sex
is impelled by elementary self-respect and personal dignity.”);
Tucker v. Dickey, 613 F. Supp. 1124, 1130 (D.C. Wis. 1985)
(prisoner had privacy interest against being forced to urinate in the
presence of guards in order to comply with drug test); Doe v.
Calumet City, Illinois, 754 F. Supp. 1211, 1218 (N.D. Ill. 1990)
(“[dJeeply imbedded in our culture ... is the belief that people have
a reasonable expectation not to be ... observed unclothed ... by
others.”).
Ordinarily, a prisoner’s right to personal privacy must be
balanced against the institution’s legitimate interest in maintaining
security. Hudson v. Palmer, 468 U.S. at 527-28; Bell v. Wolfish,
441 U.S. at 559. In the instant case, however, defendants have
advanced no security justification for the challenged condition in
the Courthouse. It seems that the problem was simply caused by
a faulty partition. The question that remains is whether defendants
Phelan and Charnogorsky can be held liable for the incidental
infringement of Johnson’s right to privacy.
Phelan and Charnogorsky are sued in both their individual
and official capacities. It is well settled that an individual can be
held liable under § 1983 only if “he caused or participated in an
alleged constitutional deprivation.” See Rascon v. Hardiman, 803
28a
F.2d 269, 273 (7th Cir. 1986) (quoting Wolf-Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir. 1983)). An official's direct participa-
tion in the alleged deprivation, however, need not be alleged. As
the court stated in Smith v. Rowe, 761 F.2d 360, 369 (7th Cir.
1985):
An official satisfies the personal responsibility requirement
of section 1983 if she acts or fails to act with deliberate or
reckless disregard of plaintiff's constitutional rights, or if
the conduct causing the constitutional deprivation occurs at
her direction or with her knowledge and consent.
The only evidence that Johnson offers to show that Phelan and
Charnogorsky knew about the condition of the Courthouse
bathroom is a letter that Johnson wrote to Phelan complaining
about the faulty partition. Nothing indicates that Charnogorsky
was ever informed about or had any knowledge of the challenged
condition. Accordingly, Charnogorsky cannot be held liable in his
individual capacity. Similarly, although Johnson informed Phelan
by letter, the President of the Cook County Board can hardly be
expected to respond immediately to every complaint about a faulty
bathroom door. See Crowder v. Lash, 687 F.2d 996, 1005-06
(7th Cir. 1982). The court thus finds the letter from Johnson to
Phelan insufficient to establish personal responsibility on the part
of Phelan. Accordingly, Phelan and Charnogorsky’s motion to
dismiss is granted as to all claims against them in their individual
capacities.
Johnson also sues Phelan and Charnogorsky in their
official capacities. A suit against a governmental officer in his
official capacity is actually a suit against the governmental entity
for which the officer works. Kentucky v. Graham, 473 U.S. 159,
164 (1985). Governmental entities, such as Cook County, cannot
be held liable unless an official policy or custom caused the
constitutional violation asserted in the complaint. Monell v
Department of Social Services, 436 U.S. 658, 694 (1978);
Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989) cert.
denied, 110 S.Ct. 2167 (1990). Nothing in the record of this case
indicates that the County maintained a policy of failing to repair
faulty bathroom partitions in County buildings. In order to permit
an inference that a governmental entity’s failure to do something
29a
amounts to an official policy or custom which, if the cause of a
constitutional violation, is actionable under § 1983, a plaintiff must
allege a course of events or circumstances which demonstrates
deliberate indifference to or tacit authorization of the offensive
conduct. See e.g. Hossman v. Blunk, 784 F.2d 793 (7th Cir.
1986). As discussed above, there is no evidence that any high-
ranking County officials even knew about the faulty partition.
Accordingly, the court grants Phelan and Charnogorsky’s motion
to dismiss as to any official capacity claims.
The Showers in the Cook County Jail
Johnson claims that in one tier of the Cook County Jail it
is possible for female correctional officers to observe inmates
while in the shower. As discussed above, prisoners and pretrial
detainees have a legitimate privacy interest in shielding their
unclothed bodies from view by members of the opposite sex. Two
competing interests, however, must be balanced against the
inmates’ legitimate privacy interest. The first and most obvious
interest is security. Shower areas present a particularly ripe
opportunity for assaults to take place. See e.g. McGill v. Duck-
worth, 944 F.2d 344 (7th Cir. 1991). Thus, jail officials have a
legitimate interest in being able to observe inmates in the shower.
Johnson does not claim that female correctional officers are
assigned to observe inmates while showering. Any observation by
female guards appears to be incidental and inadvertent. In cases
addressing the incidental observation of unclothed male inmates by
female correctional officers, courts have found that the rights of
women to equal job opportunities in the correctional field generally
outweigh the inmates’ reduced privacy rights. See Michenfelder
v. Sumner, 860 F.2d at 334 (“assigned positions of female guards
that require only infrequent and casual observation ... and that are
reasonably related to prison needs are not so degrading as to
warrant court interference.”); Smith v. Chrans, 629 F. Supp. 606,
611 (C.D. Ill. 1986) (where sightings by female staff of male
inmates in various stages of undress were occasional and at most
inadvertent, inmates’ residual right of privacy was not infringed);
Bagley v. Watson, 579 F. Supp. 1099 (D.C. Oregon 1983) (“the
preference of some male inmates for male guards, and the
indignity perceived by some male inmates as a result of having
30a
women guards perform the kinds of searches and observations at
issue in this case ... do not justify discrimination against women in
employment ... .”).
Since Jail officials have a legitimate interest in maintaining
some level of observation of inmates while in the showers, and
since the occasional viewing of male inmates by female correc-
tional officers appears to be at most infrequent and incidental to
their legitimate presence in the institution, the court finds that
Johnson has failed to state a claim that his privacy rights were
violated in this instance. Accordingly, the court grants defendants
Sheahan, Fairman, and Estrada’s motions to dismiss.
Conclusion
Since Johnson has failed to state a claim against any of the
defendants in this case, the court grants defendants Phelan,
Charnogorsky, Sheahan, Fairman, and Estrada’s motions to
dismiss. This case is hereby dismissed with prejudice. Any
pending motions in this case are denied as moot.
ENTER:
JAMES H. ALESIA
Judge, United States District Court
Dated: SEP 28 1993
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.