779 F.2d 491 (9th Cir. 1985), 84-2059, Grummett v. Rushen

Docket Nº:84-2059.
Citation:779 F.2d 491
Party Name: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.
Case Date:December 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 491

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

George GRUMMETT, John Weichman, Richard Johnson,

individually and on behalf of all others similarly

situated, Plaintiffs-Appellants,


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

December 26, 1985

Argued and Submitted March 13, 1985.

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

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

Page 492

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.


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

Page 493

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.


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...

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