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May 28, 1987

Carl L. Johnson and Walter Story, Plaintiffs,
Pa. Bureau of Corrections: Commissioner, Ronald Marks, Super., SCIP, George Petsock, et al., Defendants

Cohill, C.J.

The opinion of the court was delivered by: COHILL

Plaintiff, Carl L. Johnson, is an inmate of the State Correctional Institution at Pittsburgh ("SCIP"), otherwise known as Western Penitentiary. Plaintiff, Walter Story, is a former inmate of the SCIP. He is presently serving his sentence at a halfway house but was at the SCIP from approximately June, 1979 through October, 1986, during which time he joined this action as a plaintiff. The original complaint in this action was filed on January 26, 1983, by Hiram R. Johnston, Jr., another former inmate of the SCIP. By his pro se complaint, Mr. Johnston sought relief under 42 U.S.C. § 1983 for alleged violations of his fourth amendment right of privacy and his first amendment right to freedom of religious expression. These violations were alleged to have resulted from the SCIP's assignment of female correctional officers to various areas in the jail where these officers could view Mr. Johnston when he was unclothed. Mr. Johnston requested declaratory and injunctive relief and compensatory and punitive damages for mental and emotional distress. Named as defendants were the Pennsylvania Bureau of Corrections, Ronald Marks, Commissioner of Corrections for the Commonwealth of Pennsylvania and George Petsock, Superintendent of the SCIP.

 On February 16 and May 5, 1983, respectively, Carl Johnson and Walter Story filed motions for leave to join this action as plaintiffs and to file amended complaints. Both motions were granted. Each of the new plaintiffs generally made the same allegations as did Mr. Johnston, requested the same relief and damages and demanded a jury trial. On October 19, 1984, Mr. Johnston was dismissed from this action after his " forma pauperis " status was revoked, and he subsequently failed to reimburse the Court for costs previously unpaid.

 This Court has jurisdiction pursuant to 28 U.S.C. § 1343, granting jurisdiction in civil rights cases to the United States district courts; 28 U.S.C. § 2201, providing for declaratory judgments; and 28 U.S.C. § 2202, allowing further relief based on a declaratory judgment.

 On February 23, 1987, a nonjury trial began before this Court to hear testimony and receive evidence regarding plaintiffs' complaints and allegations. Further testimony was given on March 2, 1987 and final testimony and arguments were heard on March 3, 1987. At the conclusion of plaintiffs' case and again at the close of defendants' case, the defendants moved this Court to (i) dismiss the above-captioned action under the theory of sovereign immunity, or (ii) grant their motion for directed verdict. Both motions were taken under advisement at the close of the case.

 We will deny defendants' motion to dismiss. We do find, however, after having heard evidence and testimony presented by both sides to this controversy that insufficient evidence exists from which a jury could reasonably find for the plaintiffs. We will accordingly grant defendants' motion for a directed verdict and direct that a verdict be entered in favor of defendants and against plaintiffs.

 Standard of Analysis

 We note initially that some dispute arose at the onset of the trial in this action concerning whether a jury should have been impaneled to hear the evidence presented. Both of the existing plaintiffs had made somewhat nebulous jury demands in their motions for leave to join this action and file amended complaints. We denied these demands because we perceived this action to be essentially equitable in nature and therefore not entitled to a jury trial.

 In retrospect we acknowledge that we may have erred in making this decision. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 478 F. Supp. 889, 934 (E.D. Pa. 1979) ("The right to jury trial on . . . legal claims may not be compromised by characterizing the case as 'basically equitable,' [or] by characterizing the legal claims as 'identical' to the equitable ones. . . ."). We believe any such error to be harmless, however, in view of our finding that defendants' motion for directed verdict should be granted. In granting this motion, we essentially conclude that insufficient evidence exists for a jury to find in favor of plaintiffs. As a result, even if a jury had been impaneled, it never would have been called upon to perform its function. See Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir. 1984) ("Error in striking the demand for a jury trial is harmless if a directed verdict for the defendant would have been warranted."), cert. denied, 469 U.S. 886, 105 S. Ct. 260, 83 L. Ed. 2d 196 (1984).

 In this regard, we further note that defendants' motion for directed verdict would normally be construed as a motion for involuntary dismissal under Fed. R. Civ. P. 41(b), as the motion for directed verdict applies to jury trials; and the motion for involuntary dismissal, nonjury trials. However, in view of our possible error in trying this case without a jury, we will apply the stricter standards governing a motion for directed verdict under Fed. R. Civ. P. 50(a). Even under this latter standard, though, defendants are entitled to judgment in their favor.

 In considering whether a directed verdict should be granted in favor of defendants, we must view the evidence in the light most favorable to the plaintiffs, give the plaintiffs the advantage of every fair and reasonable inference, and then determine whether there is insufficient evidence from which a jury could reasonably find for plaintiffs. Rippee v. Grand Valley Mfg. Co., 762 F.2d 25, 26 (3d Cir. 1985); Fireman's Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1177-78 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S. Ct. 767, 50 L. Ed. 2d 770 (1977). We cannot weigh the evidence or judge its credibility. Fireman's Fund, 540 F.2d at 1178. Further, if there is conflicting evidence that could reasonably lead to inconsistent inferences, a verdict may not be directed. Id. In addition, where a motion for directed verdict is made by a party carrying the burden of proof on a particular issue, we are required to test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. We must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding. Id. at 1177.


 The plaintiffs address their complaints to three different areas within the SCIP. The plaintiffs contend that the SCIP's policies and practices regarding the assignment of female guards to these areas constitute a violation of the plaintiffs' constitutional rights under the First and Fourth Amendments. In view of the standard of analysis regarding a motion for directed verdict, we give plaintiffs every reasonable inference in detailing their particular complaints with respect to each area.

 A. Individual Cells

 The SCIP holds prisoners convicted primarily of felonies and serving long sentences. Female guards began to work in the housing units at the prison in late summer of 1982. Prisoners at the SCIP are housed in two large buildings, the North and South Blocks. Each block consists of ten ranges or rows of cells and is five tiers high. The rows of cells are back-to-back so that each cell door faces outward to a walkway encompassing each tier.

 Prisoners are not permitted to place any type of covering or curtain on the cell doors, except for a "privacy panel" which is available at the prison commissary. Privacy panels stand about three feet high and cover the lower half of a cell door. The panels provide little obstruction to the view of a person standing directly outside the door.

 Female guards can be assigned to any tier within either block for their work shift, except for the maximum security ranges located near the ground floor of North Block. However, assignment to a particular tier does not guarantee that a particular female guard will remain there for her entire shift. A female guard may be called away from her assigned tier to assist other guards in the cell block and may even enter the maximum security ranges if an emergency arises. Part of a guard's duties when assigned to a particular tier includes "taking count" of the inmates within their cells. In order to ascertain that each prisoner is within his assigned cell at the time of a "count," each guard is required to "see flesh, movement or hear the inmate speak before he is recorded as being present." Plaintiffs' Ex. 1.

 Johnson alleges by an affidavit and unsworn statement, filed February 24, 1984, that he was twice seen naked by female guards while he was in his cell. On February 8, 1984, he claims to have been seen while using the toilet in his cell. In September or October of 1983, Johnson further claims to have been observed while he lay naked on the floor of his cell.

 Plaintiff Story avers in an affidavit filed February 29, 1984, that he was observed in the nude several times by two female correctional officers. Such observations included viewings of plaintiff Story while he was using the toilet in his cell. By his later testimony, Story qualifies the term "several" as being greater than ten times and "maybe" more than a hundred.

 Both plaintiffs allege that such viewings caused humiliation, mental anguish and trauma. Both profess to be particularly distressed with the prison policy forbidding privacy curtains for the cell doors, but allowing for privacy panels which must be purchased at the prison commissary. In particular, plaintiffs complain that they should not have to "purchase privacy."

 Plaintiffs further allege that the SCIP began to strictly enforce its cell door obstruction policy at the same time female guards began working in the cell block; plaintiffs contend that such enforcement was intended to humiliate the plaintiffs and, in particular, the female guards.

 B. Cell Block Shower Areas

 Each cell block has a shower located on the bottom floor at the end opposite the entrance to each housing unit. Each shower area consists of approximately 12 shower stalls. The stalls stand side-by-side with a contiguous rear wall which supports the shower mechanism for each stall. Partitions on each side divide one from the other. The front and top of each shower stall is open, facing inward to the tiers located in the center of the blocks.

 A smaller wall, approximately four feet high, is located approximately five feet in front of the stalls. This wall provides for a dressing area between it and the shower stalls. It also obstructs the view of anyone standing directly in front of the showers on the bottom floor of the cell blocks, insofar as the lower extremities of an inmate within the dressing area or shower stalls cannot be seen. We note that the shower stalls are located on a higher plane than the floor of the dressing area, i.e., an inmate must step-up into the shower stalls; thus, the wall provides less of an obstruction for those inmates within the stalls.

 Plaintiff Johnson makes no claim to having been viewed in the shower areas; plaintiff Story claims to have been viewed naked in this area as part of the "several" times he claims to have been seen nude by female attendants. Plaintiff Story further avers that the shower area is routinely inspected by all guards assigned to the ranges and tiers above the showers, and he ...

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