# Opposition Brief — Johnson v. Sheahan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1006

## Text

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

i

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

ii

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

L

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-

-

li

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).

a.

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

ee

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

a

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,

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

DONALD J. MIZERK
Counsel of Record

PATRICIA M. SHYMANSKI

TERRY L. McDONALD

MICHAEL D. JACOBS

SARA DILLERY HYNES

Assistant State’s Attorneys
Of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1428%3A2. Public record. Not legal advice.