Opposition Brief — Johnson v. Sheahan

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Supreme Court, U.S.

FILED

No. se OCT 16 1996

CLERK

In THE :

Supreme Court of the United States

OcToBER TERM, 1995

ALBERT JOHNSON,

Petitioner,

Vv.

MICHAEL SHEAHAN, JAMES FAIRMAN,

and RAUL ESTRADA,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JACK O’MALLEY

State’s Attorney of Cook County

500 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-5450

_ Attorney for Respondents

Michael Sheahan, James Fairman,

and Raul Estrada 4

DONALD J. MIZERK

Counsel of Record

PATRICIA M. SHYMANSKI

TERRY L. McDONALD

MICHAEL D. JACOBS

SARA DILLERY HYNES

Assistant State’s Attorneys

Of Counsel

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................. ii

REASONS WHY CERTIORARI

SI AE SO SPUEMEMEED v.ccéohocccesccecsecs 1

NO TRUE CONFLICT EXISTS AMONG THE

COURT OF APPEALS AS TO WHETHER THE

PERIODIC VIEWING OF INMATES IN VARI-

OUS STATES OF UNDRESS BY PRISON

GUARDS OF THE OPPOSITE SEX IN THE

COURSE OF ROUTINE SUPERVISION VIO-

LATES THE FOURTH OR EIGHTH AMEND-

FUE. Cosson densccevéscencecetdadesdesenes 1

Il.

THE SEVENTH CIRCUIT’S DECISION COR-

RECTLY APPLIED THE LAW UNDER THE

FOURTH AND EIGHTH AMENDMENT .... 10

A. The Seventh Circuit Properly Relied

Upon Wolfish And Hudson To Dismiss

Petitioner’s Privacy Claim Under The

Fourth Amendment .................. 11

B. The Seventh Circuit’s Ruling That Cook

County Jail’s Cross-Sex Monitoring Policy

Does Not Violate The Eighth Amend-

ment’s Ban On Cruel And Unusual Pun-

ishment Is Fully In Accordance With This

Court’s Rulings And Those Of Other

CRE SIE SUD Cicsecduevsvacccress 13

LAURIE -0 du xoudekades aghchnaneeewecdes 16

TABLE OF AUTHORITIES

Cases: PAGE

Bell v. Wolfish, 441 U.S. 520 (1979).......... passim

Canedy v. Boardman, 15 F.3d 183 (7th Cir. 1994). 4,9

Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991) .. 5

Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir. 1992) . 12

Covino v. Patrissi, 967 F.2d 441 (1st Cir. 1992) .. 13

Farmer v. Brennan, 114 S.Ct. 1970 (1994) ..... 2,14

Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1991) .

Hudson v. Palmer, 468 U.S. 517 (1984) ....... passim

Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993). 9, 15

Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987).. 5,12

Michenfelder v. Sumner, 860 F.2d 328 (4th Cir.

WOU cdc lecsteetaneyabaeerere craves 5, 6, 7, 13

Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990) .. 10

Turner v. Safley, 482 U.S. 78 (1987)......... passim

Whitley v. Albers, 475 U.S. 312 (1986)........ 14

Wilson v. Seiter, 501 U.S. 294 (1991) .......... 14

Constitutional Provisions:

US. Comet. Bane: TV vi ei ccdscctectuvesiss passim

US, Gat, AINE FV sv cts cckeawnnaaet aware passim

US. Comet, Amend, VERE wccceccacsecvvaneuss passim

Statutes:

GE Te BAU fb overchdvavaers case cesneengis 1

er ae

REASONS WHY CERTIORARI

SHOULD BE DENIED

NO TRUE CONFLICT EXISTS AMONG THE COURT OF

APPEALS AS TO WHETHER THE PERIODIC VIEWING

| OF INMATES IN VARIOUS STATES OF UNDRESS BY

| PRISON GUARDS OF THE OPPOSITE SEX IN THE

| COURSE OF ROUTINE SUPERVISION VIOLATES THE

FOURTH OR EIGHTH AMENDMENT.

Petitioner asserts that the Seventh Circuit’s ruling in

this case is “sharply in conflict” with decisions in the

First, Second, Fourth, Sixth, Ninth, Tenth, and Eleventh

Circuits, and that the Seventh Circuit “stands alone” in

holding that prison inmates do not possess a constitu-

tional right not to be seen in the nude by the other sex.

Petitioner overstates the scope of the holdings in the

other circuits as well as the holding of the Seventh Cir-

cuit in this case in detailing this supposed conflict. A

review of the cases cited by plaintiff in conjunction with

the Seventh Circuit’s opinion reveals that no such deep,

one-sided conflict exists. Indeed, the Seventh Circuit’s

opinion in this case is fully supported by the holdings of

this Court in Hudson v. Palmer, 468 U.S. 517 (1984),

Bell v. Wolfish, 441 U.S. 520 (1979), and Turner v.

Safley, 482 U.S. 78 (1987), and is consistent with the

holdings of most of the cases cited by petitioner.

The Seventh Circuit in the instant case upheld the dis-

trict court’s dismissal of petitioner’s pro se § 1983 com-

plaint after considering his claim that cross-sex monitor-

ing at the Cook County jail violated his rights under the

constitution in the context of the fourth amendment’s

prohibition against unreasonable searches, the fifth

amendment’s due process clause and the eighth amend-

ellis

ment’s protection against cruel and unusual punishment.

The Seventh Circuit found that in light of this court’s

opinions in Wolfish and Hudson, a prisoner’s right to pri-

vacy under the fourth amendment is extinguished upon

being committed to prison. (See, Arg. II A, supra for fur-

ther discussion.) In terms of the fifth amendment due

process clause, the Seventh Circuit noted the question

was whether the regulation is “reasonably related to

legitimate penological interests,” citing Turner v. Safley,

482 U.S. at 89. The court, noting that surveillance of

prisoners was essential and that observation of cells,

showers, and toilets was less intrusive than the body-

cavity inspections permissible under Wolfish, deferred to

the judgement of prison administrators in permitting

cross-sex monitoring. Finally, the Seventh Circuit con-

sidered petitioner’s claim in light of the eighth amend-

ment. The court observed that this amendment offered

some protection supplementary to the fourth and could

be invoked to overcome “calculated harassment unrelated

to prison needs,” citing Hudson, 468 U.S. at 530. The

court further noted that petitioner’s complaint did not

allege either particular susceptibility or any design to

inflict psychological injury, or deliberate harassment on

account of sex. The Seventh Circuit reasoned that since

petitioner failed to allege the intent necessary to satisfy

the mental state component of the eighth amendment

under Farmer v. Brennan, 114 S.Ct. 1970 (1994), and

since cross-sex monitoring could not be called “inhu-

mane” and therefore did not fall below the floor set by

the objective component of the eighth amendment, the

district court properly dismissed petitioner’s complaint

for failure to state a claim upon which relief could be

granted. (For further discussion of the Seventh’s Circuit's

eighth amendment analysis, see Arg. II B.)

re me

Without stating the grounds upon which the rulings

were based, or any discussion of the facts of the cases he

cites, petitioner asserts that “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.” (Pet. Br. 11) Standing alone, this

statement means very little—the Seventh Circuit in the

instant case “scrutinized” petitioner’s claim in light of

three separate amendments to the constitution. Petition-

er goes on to cite language from opinions from each of

these circuits which may misleadingly suggest that all

these circuits have squarely addressed the issue facing

the Seventh Circuit in this case and have held precisely

the opposite. A review of these cases establishes this is

not at all the case. Many of the cases cited by petitioner

concern strip searches, not routine surveillance of the

prison facility as in the instant case, and in other in-

stances, some of the language quoted is merely dicta and

other language supports the Seventh Circuit’s opinion in

this case.' Further, the Seventh Circuit’s prior holding in

' In Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991) the court

did not reach the issue of the constitutionality of a visual strip

search conducted upon a male inmate, which was observed by

a female corrections officer in a supervisory capacity from a

distance of five feet, in ruling that defendants were entitled to

qualified immunity. The court, supporting the Seventh Cir-

cuit’s opinion in this case, noted that “even assuming such a

protected right, inadvertent and occasional observations re-

stricted by distance, of inmates’ dressing, showering, being

strip searched or using toilet facilities do not rise to the level

of constitutional infringement.” 945 F.2d at 41. In Forts v.

Ward, 621 F.2d 1210 (2d Cir. 1980), the state defendant did

not challenge the district court’s order prohibiting the assign-

(continued...)

er ee

Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), is con-

sistent with its holding in the instant case, contrary to

petitioner's claims. (Pet. Br. 12, n. 3)

' (...continued)

ment of male guards to night time viewing of female inmates

through cell door windows, and the Circuit considered

only the issue of whether the remedy infringed upon the

guards’ right to equal my 0 opportunities. In Strickler

v. Waters, 989 F.2d 1375 (4th Cir. 1993), the court ruled that

a male inmate’s constitutional rights were not violated by

being exposed to female officers patrolling the cell block and

in the “back office area” where prisoners showered, are strip

searched and use the toilet. The court noted that curtains con-

cealed the male prisoners while they showered (just as in the

instant case) and that a counter in the back room obscured the

female officer’s view. In Cornwell v. Dahlberg, 963 F.2d 912

(6th Cir. 1992), the court considered net med of a strip

search conducted before several female officers, reversed the

judgment in favor of the inmate on his fourth amendment

claim and remanded for a new trial. In Michenfelder v. Sum-

ner, 860 F.2d 328 (9th Cir. 1988), the court ruled that the fact

that female correctional officers might be able to view strip

searches of male prisoners did not render the search unconsti-

tutional. In Cumbey v. Meachum, 684 F.2d 712 (11th Cir.

1982), the court held the district court erred in dismissing

inmate plaintiff's entire action as frivolous, where he alleged

in pod iy se complaint that male inmates while completely or

partially unclothed are being subjected to “a certain amount

of viewing” by female correctional officers. Harding v. Stynch-

comb, 691 F.2d 1364, 1374 (11th Cir. 1982), is an employment

discrimination case, in which the court held that the bona fide

occupational qualification (bfoq) exception to Title VII did not

justify defendants’ arbitrary practice of funneling deputy sher-

iffs through positions reserved almost exclusively for males.

2 In Canedy, the Seventh Circuit held that a right of privacy

limits the ability of wardens to subject men to body searches

by women, or the reverse. (See Pet. . 2a) In its opinion in

the instant case, the court specifically designated the language

cited by petitioner in his footnote as dictum, stating the fol-

(continued...)

eas

Petitioner concedes that the courts of appeal differ as

to the source of prisoners’ constitutional interests in

avoiding cross gender surveillance. Respondent submits

that the Seventh Circuit properly placed the source of a

prisoner's “privacy” interest in the eighth amendment,

and the Seventh Circuit's view is supported by decisions

of other circuits as well as the opinions of this court. Cer-

tainly contrary to petitioner’s claim, the Seventh Circuit

does not stand alone against the majority of other cir-

cuits in this regard.

Petitioner claims “some” courts of appeals have recog-

nized a “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,”

citing Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987);

Michenfelder v. Sumner, 860 F.2d 328 (4th Cir. 1988),

and Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991). An

examination of these cases however, reveals that none of

them support the broad rule put forth by petitioner here.

In Kent, plaintiff's complaint alleged first, fourth and

eighth amendment violations stemming from prison

authorities’ practice of allowing female prison guards

unrestricted access to the male housing unit. Plaintiff

asserted that one of the fundamental tenets of his Chris-

tianity was modesty, which was violated when female

guards were permitted and required to observe him per-

* (...continued)

lowing: “To the extent incautious language in Canedy implies

that deliberate vieual inspections are indistinguishable from

physical palpitations its discussion is dictum. Further reflec-

tion leads us to conclude that it should not be converted to a

holding.” (Pet. App. 7a)

nailed

forming necessary bodily functions in his cell and while

showering, and that when piaintiff asserted his right to

privacy, female prison guards “allowed themselves unre-

stricted views of his naked body in the shower, at close

range and for extended periods of time, to retaliate

against, punish and harass him for asserting his right to

privacy.” 821 F. 2d at 1224, 1227-1228. The court ruled

that the district court erred in dismissing plaintiff's

claims based on the first, fourth and eighth amendments,

stating specifically in regard to his fourth amendment

claim:

Thus, assuming that there is some vestige of the

right to privacy retained by state prisoners and that

this right protects them from being forced unneces-

sarily to expose their bodies to guards of the opposite

sex, the instant complaint did state a constitutional

claim upon which relief can be granted. 821 F.2d at

1227.

This language, especially when viewed in light of the

facts alleged in the complaint in Kent, hardly supports

the broad rule advocated by petitioner here.

Michenfelder, also relied upon by petitioner to establish

support for his proposed rule, similarly falls short. In

that case, as noted in footnote 1, supra, the court ruled

that the fact that female officers can observe strip

searches, and are sometimes employed for shower duty,

did not violate male inmates’ right to privacy. 860 F.2d

at 333-334. Further, the court in Michenfelder never

designated this right of privacy as flowing from the

fourth amendment. See, 860 F.2d at 333-334. Indeed, the

Ninth Circuit cited its prior opinion in Grummett uv.

Rushen, 779 F.2d 491, 493-495 (9th Cir. 1991), which

analyzed an inmate’s right to privacy based on the four-

teenth amendment due process clause. The Michenfelder

court did employ Turner v. Safley’s rational relationship

test in determining that the prison’s allocation of respon-

sibilities represented a reasonable attempt to accommo-

date prisoner’s privacy concerns consistent with internal

security needs and equal employment concerns. 860 F.2d

at 334. Likewise, the Seventh Circuit in the instant case

employed the Turner v. Safley test in the context of its

analysis under the fifth amendment due process clause,

as well as in its eighth amendment analysis. (Pet. App.

4a, 8a) Thus, rather than supporting petitioner's claim,

Michenfelder supports the opinion of the Seventh Circuit

in this case.

Finally, Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991),

does not support petitioner’s claim that he possesses a

fourth amendment right of privacy which protects him

from cross-sex monitoring. In summarizing “the state of

relevant law” at the time of its decision, the Cookish

court stated “inadvertent, occasional, casual, and/or re-

stricted observations of an inmate’s naked body by a

guard of the opposite sex did not violate the fourth

amendment,” again as noted in footnote 1, supra. (945

F.2d at 44). The court, which never reached the issue of

the constitutionality of female officers observing a strip

search of a male inmate from a distance of five feet, also

cited language from Grummett v. Rushen, 779 F.2d 491

(9th Cir. 1995), indicating “casual observations restricted

by distance, of inmates dressing showering, being strip

searched or using toilet facilities do not rise to the level

of constitutional infringement.” 945 F.2d at 447. Again,

rather than supporting petitioner’s claim that the Sev-

enth Circuit stands alone, Cookish provides further sup-

port for its opinion in this case.

_— ”“

i oe

To support his contention that the Seventh Circuit

stands alone against other circuits in its determination

that the cross-sex monitoring alleged in his complaint did

not violate the constitutional “right to privacy”, petitioner

again cites a series of cases which are either inapplica-

ble, or actually provide some support for the Seventh Cir-

cuit’s opinion. (Pet. Br. at 14).*

* Lee v. Bratten, 1994 U.S. App. LEXIS 20669 (4th Cir. Aug.

8, 1994) is an unpublished opinion based on a complaint alleg-

ing that a female officer observed a male inmate as he was

strip searched. The court did note that the right to privacy

was implicated, but did not attribute that right to any specific

amendment and did not rule that any right to privacy was

violated, but rather remanded the case to the district court

with instructions to comply with procedural requirements.

Strickler v. Waters, 989 F.2d 1374 (4th Cir. 1993), and Cumbey

v. Meachum 684 F.2d 712 (10th Cir. 1982), have been dis-

cussed and distinguished in footnote 1, supra. As noted, the

factual situation in Strickler and the court’s language in that

case support the position of the Seventh Circuit here. In Lee

v. Downs, 641 F.2d 1117, 1119-1120 (4th Cir. 1981), the court

ruled that a female inmate’s right to privacy was invaded

when her clothing was forcibly removed in the presence of

male guards, despite her expressed willingness to remove her

clothing voluntarily if the male guards would withdraw. In

Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993), the

court recognized that prison inmates retain “a constitutional

right of privacy” and remanded the case to the district court

to apply the Turner “reasonableness” test in determining

whether injunctive relief was appropriate for the alleged in-

fringement of the appellants’ constitutional rights to bodily

privacy, consistent with what the Seventh Circuit did in the

instant case. Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982),

is 2 prior opinion of the Seventh Circuit, in which the court

upheld cross-sex pat-down searches of prison inmates while

recognizing that the inmates possess a limited right to per-

sonal privacy, and was cited by the Seventh Circuit in its opin-

ion in the instant case. (Pet. App. 4a)

a Ee

Petitioner’s attempt to depict the Seventh Circuit as

standing alone in its analysis of petitioner’s claim with

regard to the eighth amendment is equally flawed. Al-

| though petitioner cites Jordan v. Gardner, 986 F.2d 1521

| (9th Cir. 1993), for the proposition that “at least one

court of appeals explicitly disagrees with the Seventh

Circuits majority’s position,” an examination of Jordan

reveals that once again petitioner is overstating the hold-

ing in the case. The Seventh Circuit in the instant case

actually cites Jordan to support its view that the refer-

ences to privacy in its previous opinion in Canedy v.

Boardman, 16 F.3d 183 (7th Cir. 1994), and similar

cases, should be understood as invocations of the eighth

amendment’s ban on cruel and unusual punishments.

(Pet. App. 5a) Jordan is factually distinguishable from

the case under review in that it does not concern female

correctional officers monitoring of male prison facilities,

) but rather male correctional officers conducting pat-down

body searches of female inmates. The court in Jordan

concluded that the record supported the postulate that

| women experience unwanted intimate touching by men

differently from men subject to comparable touching by

women and ruled that the policy to allow such searches

| constituted an “infliction of pain,” in violation of the

eighth amendment. 986 F.2d at 1526.

) The Jordan court’s ruling simply cannot be construed

as “explicitly” disagreeing with the Seventh Circuit’s

opinion in the instant case. Like the court did in Jordan,

and as urged by petitioner here, the Seventh Circuit con-

sidered whether the policy of permitting cross-gender

surveillance was reasonably related to legitimate peno-

logical interests under Turner, in finding no violation of

the eighth amendment’s ban on cruel and unusua! pun-

ishment. (Pet. App. 4a, 8a, 12a).

The Seventh Circuit’s opinion in this regard is fully

supported by the opinion of the Eighth Circuit in Timm

v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990), which

concluded that “opposite sex surveillance of male in-

mates, performed on the same basis as same-sex surveil-

lance,” is constitutionally permissible. The Seventh Cir-

cuit cited Timm in support of its opinion in the instant

case, and noted that the petitioner’s factual allegations

presented “exactly the same situation the eighth circuit

held permissible in Timm.” (Pet. App. 6a, 8a) The Sev-

enth Circuit also noted that the Ninth Circuit held cross-

sex monitoring to be constitutional in Grummett v.

Rushen, 779 F.2d 491 (9th Cir. 1985).

Thus, it is evident that the Seventh Circuit’s opinion in

the instant case is fully supported by and consistent with

the opinions of the majority of other circuits. There is no

direct circuit split on a recurring constitutional issue,

contrary to petitioner’s claims. Further, there is no dis-

parity in treatment among the circuits, again contrary to

petitioner’s claims. The various circuits of appeals, in-

cluding the Seventh Circuit, are consistently considering

the issue of cross-sex monitoring in accordance with this

Court’s opinions in Wolfish, Hudson, and Turner.

Il.

THE SEVENTH CIRCUIT'S DECISION CORRECTLY AP-

PLIED THE LAW UNDER THE FOURTH AND EIGHTH

AMENDMENT.

Although the Seventh Circuit analyzed petitioner’s

claims under the fourth amendment’s prohibition against

unreasonable searches, the fifth amendment’s due proc-

ess clause and the eighth amendment’s ban on cruel and

unusual punishments, petitioner attacks only the court’s

ae ae

reasoning in connection with the fourth and eighth

amendments. Thus petitioner is in apparent agreement

with the Seventh Circuit’s view that under Turner v.

Safley, the cross-sex monitoring policy at issue here is

reasonably related to legitimate penological interests.

(Pet. App. 4a.) In any event, respondent submits the

Seventh Circuit’s analysis under the fourth and eighth

amendments is equally sound.

A. The Seventh Circuit Properly Relied Upon Wolfish

and Hudson To Dismiss Petitioner’s Privacy Claim

Under The Fourth Amendment.

Petitioner argues that the Seventh Circuit misread this

Court’s opinions in Hudson v. Palmer, 468 U.S. 517

(1984), and Bell v. Wolfish, 441 U.S. 520 (1979), in con-

cluding that the fourth amendment right to privacy was

extinguished upon being committed to prison. However,

it is petitioner, not the Seventh Circuit who misreads

Hudson, when te cites Hudson for the proposition that

“[plrisoners continue to enjoy Fourth Amendment pro-

tections that are not fundamentally inconsistent with im-

prisonment itself or incompatible with the objectives of

incarceration,” (Pet. Br. 18) and when he attempts to

limit the applicability of Hudson to searches of an in-

mate’s possessions in his cell.

An examination of Hudson reveals that nowhere in

that opinion did this Court state that prisoners were still

entitled to fourth amendment protections after their

entry into prison. Further, this Court’s holding that pris-

oners had no reasonable expectation of privacy in their

cells was not limited to their possessions within the cell,

as petitioner now asserts. This Court ruled as follows:

ionic

[W]e hold that society is not prepared to recognize as

legitimate any subjective expectation of privacy that

a prisoner might have in his prison cell and that,

accordingly, the Fourth Amendment proscription

against unreasonable searches does not apply within

the confines of the prison cell. The recognition of pri-

vacy rights for prisoners in their individual cells sim-

ply cannot be reconciled with the concept of incarcer-

ation and the needs and objectives of penal institu-

tions. 468 U.S. at 526

This language is broad in scope and applies to the inci-

dental viewing of a naked prisoner in his cell as well as

his possessions, as correctly found by the Seventh Circuit

in this case.

This reading of Hudson is supported by this Court’s

opinion in Bell v. Wolfish, 441 U.S. 557 (1979), where

visual body cavity searches were upheld against a fourth

amendment challenge. For the purposes of that opinion,

decided prior to Hudson, this Court assumed that both

convicted prisoners and pretrial detainees retained some

Fourth Amendment rights upon commitment to a cor-

rections facility, but found that the searches were rea-

sonable and did not violate the amendment. 441 U.S. at

558-559. The visual monitoring of naked prisoners in

their prison cells and shower area, considered by the

Seventh Circuit in the instant case, represents a less

intrusive search than the body cavity search approved by

this Court in Wolfish.

Petitioner again asserts that other courts of appeals

“consistently limit Hudson to cell searches and hold that

surveillance and other searches of prisoner’s bodies are

properly subjected to fourth amendment scrutiny.” Three

of the cases he cites to support this statement, Cornwell

v. Dahlberg, 963 F.2d 912 (6th Cir. 1992), Kent, and

Michenfelder, have been discussed in Argument I, supra,

n.1. As noted above, none of those cases find a fourth

amendment protection against cross-sex monitoring of

prisoners in various states of undress, and Michenfelder

and Cookish actually support the Seventh Circuit’s opin-

ion in the instant case. Covino v. Patrissi, 967 F.2d 73

(2nd Cir. 1992), the only other case cited by petitioner to

support this proposition, concerned visual body cavity

searches, not cross-sex monitoring of prison facilities, as

in the instant case. In Covino, the court did recognize

that inmates do retain a limited right to bodily privacy,

and applied the Turner factors in determining that the

random visual body-cavity search policy was not an

unreasonably regulation. Similarly in the instant case,

the Seventh Circuit employed the Turner analysis of the

cross-sex monitoring policy and the fifth amendment due

process clause. (Pet. App. 4a.) The Seventh Circuit prop-

erly relied upon Hudson and Wolfish in ruling that no

fourth amendment right of privacy was implicated by the

cross-sex monitoring policy employed by prison officials

in the instant case. Further, no other court of appeals

has found such a fourth amendment right, contrary to

petitioner’s claims.

B. The Seventh Circuit’s Ruling That Cook County

Jail’s Cross-Sex Monitoring Policy Does Not Violate

The Eighth Amendment’s Ban On Cruel And Un-

usual Punishment Is Fully In Accordance With This

Court’s Rulings And Those Of Other Courts Of Ap-

peal.

Petitioner contends that the Seventh Circuit erroneous-

ly concluded that because petitioner did not allege that

prison officials had any intent to injure in adopting the

policy allowing cross-sex monitoring of prisoners in vari-

Ran, 5 iat

ous states of undress within the prison facility, the policy

did not violate the eighth amendment. Petitioner adopts

the view of Judge Posner in his dissent in this case, that

it is sufficient to show “deliberate adoption” of a practice

that “constitutes cruel and unusual punishment,” and

compares the cross-sex monitoring policy in the instant

case to the disciplinary use of “the thumbscrew and

rack.” (Pet. Br. 20)

Petitioner’s (and Judge Posner’s) comparison is spuri-

ous. The Seventh Circuit correctly noted that the policy

of permitting cross-sex monitoring “cannot be called in-

humane and therefore does not fall below the floor set by

the objective component of the eighth amendment.” (Pet.

App. 12a) The court noted several settings in which per-

sons of one sex may observe persons of the other sex in

the nude, a’ ~— tated, “[h]low odd it could be to find in the

eighth « .dment a right not to be seen by the other

sex.” (Pet. App. 7a) Certainly, the Seventh Circuit would

not make the same statement about the use of the

thumbscrew and rack.

The Seventh Circuit properly relied upon this Court’s

precedents in Whitley v. Albers, 475 U.S. 312 (1986),

Wilson v. Seiter, 501 U.S. 294 (1991), and Farmer v.

Brennan, 114 S.Ct. 1970 (1994), in ruling that since peti-

tioner did not allege either a particular susceptibility or

any design to inflict psychological injury, he could not

satisfy the demanding mental state component of the

eightn amendment. (Pet. App. 5a-8a) Petitioner did not

discuss the holdings of either Whitley or Wilson and does

not even cite Farmer v. Brennan, which the Seventh Cir-

cuit relied upon as holding that the mental state compo-

nent of the eighth amendment is criminal recklessness.

Relying on these precedents, the Seventh Circuit noted

that to satisfy this standard, the guard or warden must

want to injure the prisoner or must know of and disre-

gard a substantial risk that harm will befall the prison-

er, and the petitioner did not make any such allegations

in his complaint. (Pet. App. 8a.)

Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), cited

by petitioner to support his view that the cross-sex moni-

toring in the instant case violated the eighth amend-

ment, is factually distinguishable and indeed illustrative

of the type of allegation that must be made to satisfy the

mental-state component of the eighth amendment. In

Jordan, there was evidence and allegations of deliberate

indifference, and serious psychological pain,‘ stemming

from the policy of allowing male guards to conduct forced

body searches upon female inmates who had been vic-

tims of sexual abuse, and who stated their willingness to

be searched by guards of the same sex. No such allega-

tions were made by petitioner here and the Seventh Cir-

cuit correctly ruled that absent such allegations, the

district court properly dismissed petitioner’s complaint

for failure to state a cause of action under the eighth

amendment.

The Seventh Circuit in the instant case properly deter-

mined that petitioner failed to state a claim under the

fourth, fifth or eighth amendments. Its ruling is fully

supported by this Court’s precedents and is not in con-

flict with the majority of the other circuit courts of

* Under the recently enacted Prison Litigation Reform Act, 42

U.S.C. § 1997e(e) a prisoner may not bring a federal civil in-

jury for mental or emotional injury suffered in custody without

. prior showing of physical injury, an allegation not made in

a ae

appeal, as erroneously contended by petitioner. Rather,

an examination of the cases cited by petitioner reveals

that in most instances, the rationale of the other courts

of appeals is consistent with that of the Seventh Circuit

in this case. There is no merit to any of petitioner's

claims.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,