wall. In addition, any guard assigned to the tiers and ranges above the showers can look down into the shower stalls with the only obstruction being a screen above the stalls. Guards on the second tier, which lies directly above the stalls, are able to look down into the showers if they walk near the guardrail at the outer edge of the walkway encompassing that tier. Guards on the upper tiers would have to look over the railings on their respective tiers in order to see into the shower area.
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 again claims to have been embarrassed and to have suffered mental anguish by such observations.
C. Gym Area Showers
The showers in the gym area of the SCIP are housed in an enclosed area which has an exterior barred door leading to an outer enclosed dressing area. An inner doorway lies between the dressing and shower areas. The shower area cannot be viewed from the outside except from the dressing area, and the dressing area is partially obscured by the walls encompassing the entire area. Plaintiffs contend that despite these obstructions, female guards routinely look into the gym showers. Plaintiff Story specifically claims to have been observed nude in these showers, again as part of the "several" times he was seen naked by female corrections officers, again causing mental anguish.
A. Right of Privacy
We recognize that the plaintiffs, although inmates of the SCIP, do retain certain rights of privacy under the Fourth Amendment, which include the right not to be viewed naked by a member of the opposite sex. See Grummett v. Rushen, 779 F.2d 491, 493, 495-96 (9th Cir. 1985), Smith v. Chrans, 629 F. Supp. 606, 611 (C.D. Ill. 1986). However, this right of privacy is not unlimited. As the Supreme Court has stated, "loss of freedom of choice and privacy are inherent incidents of confinement." Bell v. Wolfish, 441 U.S. 520, 537, 99 S. Ct. 1861, 1873, 60 L. Ed. 2d 447, 467 (1979). Moreover, the Constitution does not mandate that prisons which house prisoners convicted of serious crimes must be completely free of discomfort and affronts to a prisoners' dignity. See Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59, 70 (1981). Consequently, a prisoner's right of privacy exists only so far as it is not fundamentally inconsistent with prisoner status or incompatible with the legitimate objects of incarceration Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974). Similarly, the state may restrict or withdraw a prisoner's rights to the extent necessary to further the correctional system's legitimate goals and policies. Hudson v. Palmer, 468 U.S. 517, 524, 104 S. Ct. 3194, 3199, 82 L. Ed. 2d 393, 401 (1984); Bell v. Wolfish, 441 U.S. at 545-46, 99 S. Ct. at 1877, 60 L. Ed. 2d at 473. Institutional security has been recognized as chief among the state's legitimate goals. Hudson v. Palmer, 468 U.S. at 524, 104 S. Ct. at 3199, 82 L. Ed. 2d at 401; Bell v. Wolfish, 441 U.S. at 547-48, 99 S. Ct. at 1878-79, 60 L. Ed. 2d at 473-74.
At the same time, the state also has a legitimate interest in avoiding job discrimination against female guards because of their gender. See Grummett, 779 F.2d at 493; Smith v. Fairman, 678 F.2d 52, 54 (7th Cir. 1982) (a state may not legally refuse to hire women as guards in a male prison and must be allowed to utilize female guards to the fullest extent possible); Smith v. Chrans, 629 F. Supp. at 612; Hudson v. Goodlander, 494 F. Supp. 890 (D. Md. 1980).
It is thus apparent that conflicting interests are involved here -- the plaintiffs' right to privacy and the defendants' legitimate interest in maintaining institutional security and preventing sex discrimination. As the plaintiffs do have at least some reasonable expectation of privacy the controlling issue becomes whether a "mutual accommodation" exists between the plaintiffs' rights of privacy and the defendants' interests regarding security and sex discrimination. Bell v. Wolfish, 441 U.S. at 546, 99 S. Ct. at 1877, 60 L. Ed. 2d at 473; Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935, 951 (1974).
Such a determination involves a three step analysis with shifting burdens of proof. Cf. Shabazz v. O'Lone, 782 F.2d 416 (3d Cir.), cert granted, 479 U.S. 881, 107 S. Ct. 268, 93 L. Ed. 2d 245 (1986) (similar but stricter standard of analysis set forth in context of First Amendment restriction by prison administration).
Step 1. First and logically, plaintiffs must show that they have in fact been viewed naked by female guards. The defendants in this case do not, however, contest that such viewings have occurred. Thus, plaintiffs have met their burden on this issue.
Step 2. In step 2, the fact finder must decide whether or not the defendants have met their burden of proving that the existing policies regarding female guards at the SCIP are reasonably necessary to further legitimate state interests. See Pell v. Procunier, 417 U.S. at 822, 94 S. Ct. at 2804, 41 L. Ed. 2d at 501; Hudson v. Goodlander, 494 F. Supp. at 892-93 (where constitutional rights are involved, court has a duty to ascertain whether restrictions on such rights represent reasonable means of achieving legitimate state interests). We note, though, that defendants bear only a qualified burden of proof in that they do not have to show affirmatively that preventing or limiting any viewing of naked male prisoners by female guards would be detrimental to proper penological objectives or would constitute a present danger to security and order or would cause sex-based discrimination. See Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 128, 97 S. Ct. 2532, 2539, 53 L. Ed. 2d 629, 640 (1977). Rather, "such considerations are peculiarly within the province and expertise of correction officials, and, in the absence of substantial evidence on the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v. Procunier, 417 U.S. at 827, 94 S. Ct. at 2806, 41 L. Ed. 2d at 504. Prison administrators are therefore awarded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to further legitimate state interests. Bell v. Wolfish, 441 U.S. at 547, 99 S. Ct. at 1878, 60 L. Ed. 2d at 474.
Step 3. In step 3 the fact finder must determine whether the plaintiffs have shown that they are routinely or regularly exposed to female guards while unclothed, as opposed to occasional, inadvertent encounters, or (the other side of the coin) that the defendants have exaggerated their concern for institutional security and preventing sex discrimination. See Cumbey v. Meachum, 684 F.2d 712 (10th Cir. 1982) (as a general rule, violation of prisoners' right to privacy occurs when guards regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities or showering); Miles v. Bell, 621 F. Supp. 51 (D. Conn. 1985) (same); Hudson v. Goodlander, supra (evidentiary hearing held to determine regularity of the assignment of female guards to posts where they are exposed to inmate nudity; this issue was deemed critical because neither an inadvertent encounter nor a regularly scheduled visit by a female employee at an announced time would rise to the level of constitutional deprivation); Avery v. Perrin, 473 F. Supp. 90 (D. N.H. 1979) (no constitutional violation where de minimus encounters occurred); cf. Shabazz v. O'Lone, supra (in First Amendment context, once the state satisfies its burden, deference is to be accorded to the judgment of prison officials unless plaintiffs show by substantial evidence that such officials have exaggerated their response to security considerations or that their beliefs are unreasonable).
In view of the judicially-mandated deference to prison officials, many courts have simply begun their review of similar conflicts with the third and last step of the analysis. Because we view this case in the context of a motion for a directed verdict, though, we will not begin with this last inquiry, but rather will explain the basis for our conclusion that insufficient evidence exists to permit any finding other than that defendants have carried their burden in step two of the right of privacy analysis. The three areas of concern with respect to observation of inmate nudity by female guards will be addressed separately.
1. Individual Cells
We note initially that defendant Ronald Marks has issued policy guidelines which were intended to accommodate concerns for maximizing the employment opportunities of female guards and the privacy rights of inmates. In a memorandum dated January 19, 1981, defendant Marks set forth the following guidelines:
a. Corrections Officers of the opposite sex to the inmate population are not to be assigned to posts where one has to work in open view of unclothed inmates (i.e., shower, strip and search, medical/physical examination areas).
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