Grummett v. Rushen

• Decision Date: 26 December 1985
• Docket Number: No. 84-2059,84-2059
• Parties: George GRUMMETT, John Weichman, Richard Johnson, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Ruth R. RUSHEN, Director, California Department of Corrections; Reginald L. Pulley, Warden, San Quentin State Prison, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 491

779 F.2d 491

George GRUMMETT, John Weichman, Richard Johnson individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Ruth R. RUSHEN, Director, California Department of Corrections; Reginald L. Pulley, Warden, San Quentin State Prison, Defendants-Appellees.

No. 84-2059.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 13, 1985.

Decided Dec. 26, 1985.

Donald Specter, San Quentin, Cal., for plaintiffs-appellants.

Tom Dove, Dep. Atty. Gen., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SNEED, TANG and CANBY, Circuit Judges.

TANG, Circuit Judge:

Plaintiffs, inmates at San Quentin prison ("inmates"), brought a class action seeking declaratory and injunctive relief under 28 U.S.C. Sec. 2201 (1982) and 42 U.S.C. Sec. 1983 (1982). The inmates asserted that the prison policy and practice of allowing female correctional officers to view male inmates in states of partial or total nudity while dressing, showering, being strip searched, or using toilet facilities violated rights of privacy guaranteed by the United States Constitution. The district court, 587 F.Supp. 913, granted summary judgment in favor of defendants, Director of California Department of Corrections and Warden of San Quentin State Prison ("the state"). For the reasons set forth below, we affirm.

BACKGROUND

The California State Prison at San Quentin is one of the state's two highest security prisons. Officials have placed approximately two-thirds of the 3000 male felons in administrative segregation.

The physical structure of the prison permits observation of the inmates by institution officials at all times. Cells have solid walls with bars at the front. At the rear of each cell is a toilet. Presently, most showering facilities are cells of similar construction which have been converted into single occupant showers with bars at the front. Prison officials may view the cells from the tiers, on which the cells are located, or from the gunrail, a position overlooking the tiers. The view from the tiers is restricted from the gunrail by cell bars, the distance, and the angle from which prison officials look into and see the cells. One section, the West Block, still has common showering facilities in which inmates shower in one room under showerheads not separated by screens or walls. As in the other facilities, prison officials may observe inmates from the floor or gunrail. Exercise yards also have open showering and toilet facilities which may be observed from the gunrail above the yards.

Approximately 113 of the 720 correctional officers at San Quentin are female. Within the cells blocks, correctional officers are assigned to patrol the tier day and night. Patrolling involves walking down the tier periodically, to check and see that inmates are in their cells, and that they conduct themselves in accordance with prison regulations. Officers are also assigned to patrol the gunrail. These officers are armed and are responsible for the security of fellow guards and inmates. Both female and male correctional officers are assigned to patrol the cell block tiers and gunrails. Similar work assignments are given to supervise showering from the tiers and from the gunrails, but only male officers accompany inmates to the single occupancy showers and lock them inside the cell to disrobe and shower.

In the West Block, male officers supervise the common showers from the tier, and female officers supervise from the gunrail. Officers are also assigned to the gunrail above the exercise yard, but do not work on the yard floor. It is disputed whether female guards are assigned to this gunrail position. The evidence overall reflects that while the potential is great for female guards to view male inmates disrobing, showering, and using toilet facilities, the actual viewing is not frequent.

In the segregated housing units officers routinely conduct searches of unclothed inmates leaving or entering the unit. Female guards are not assigned to these positions and do not routinely conduct or observe unclothed body searches, but they have occasionally observed such searches in emergency situations. Female guards can conduct pat-down searches which include the groin area.

On February 4, 1982, three prisoners at San Quentin filed a complaint on behalf of themselves and all others similarly situated, claiming that their rights of privacy under the first, fourth, eighth, ninth and fourteenth amendments to the United States Constitution had been violated. On May 14, 1984, the district court granted summary judgment in favor of the state. The court concluded that the types of assignments given to female correctional officers and the manner in which the assignments were performed at San Quentin were reasonable and constitutionally permissible, and provided an appropriate balance among the institution's security needs, the female guards' right to equal employment opportunities, and the prisoners' privacy interests.

DISCUSSION

I. The Right of Privacy in the Prison Context

It is well-established that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. Hudson v. Palmer, --- U.S. ----, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984); Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). Prisoners are to be accorded those rights not fundamentally inconsistent with prisoner status or incompatible with the legitimate objectives of incarceration. Pell, 417 U.S. at 822, 94 S.Ct. at 2804 (upholding certain first amendment rights of prison inmates); Hudson v. Palmer, 104 S.Ct. at 3198. Specifically, prisoners enjoy the protections of due process. Wolff v. McDonnell, 418 U.S. at 555-56, 94 S.Ct. at 2974.

The state, however, may restrict or withdraw rights to the extent necessary to further the correctional system's legitimate goals and policies. Hudson v. Palmer, 104 S.Ct. at 3199; Bell, 441 U.S. at 545-46, 99 S.Ct. at 1877; Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Chief among those objectives is internal security. Hudson v. Palmer, 104 S.Ct. at 3199; Bell v. Wolfish, 441 U.S. at 547-48, 99 S.Ct. at 1878-79. Moreover, the adoption and execution of policies and practices by prison administrators is to be accorded deference by the judiciary. Block v. Rutherford, --- U.S. ----, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984) (citing Bell v. Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878).

II. Rights Under the Fourteenth Amendment Privacy Guarantee

While no "right of privacy" ¹ is expressly guaranteed by the Constitution, the Supreme Court has recognized that "zones of privacy" may be created by specific constitutional guarantees, thereby imposing limits upon governmental power. See Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976); Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-86, 85 S.Ct. 1678, 1681-83, 14 L.Ed.2d 510 (1965). The Supreme Court has pointed out that rights found in the guarantee of personal privacy are limited to those which are "fundamental" or "implicit in the concept of ordered liberty". Roe v. Wade, 410 U.S. at 152, 93 S.Ct. at 726 (citing Palko v. Connecticut 02 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)).

To date the Supreme Court has recognized two types of interests protected by the right of privacy: an interest in avoiding disclosure of personal matters and an interest in personal autonomy in making certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977). The right of privacy protects private decision-making in certain matters related to marriage, procreation, contraception, abortion, family relationships, child rearing and education. Paul, 424 U.S. at 713, 96 S.Ct. at 1166. The Supreme Court has not recognized that an interest in shielding one's naked body from public view should be protected under the rubric of the right of privacy, yet it has explicitly noted that the outer limits of fourteenth amendment privacy have not been defined. Carey v. Population Services Int'l, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2015-16, 52 L.Ed.2d 675 (1977).

This court has had occasion to consider the interest in shielding one's naked body from public view. In York v. Story, 324 F.2d 450 (9th Cir.1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964), a female filed a complaint of assault. Over her protest, a male police officer photographed her in the nude, in positions which did not show her injuries, and then distributed the photographs to other personnel in the police department. This court relied upon the fourteenth amendment as the source of the woman's protection, reasoning that the security of one's privacy against arbitrary intrusion by the police is basic to a free society and therefore "implicit in the concept of ordered liberty" under the due process clause. Id. at 455. We held that the plaintiff had stated a privacy claim under the fourteenth amendment, id. at 456, because we could not "conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity." Id. at 455.

Assuming that, in this circuit, the interest in not being viewed naked by members of the opposite sex is protected by the right of privacy, our inquiry must focus on whether the female guards' conduct invaded the prisoners' interest. We might simply say that the situation of...