Timm v. Gunter

• Decision Date: 26 October 1990
• Docket Number: 89-2617,Nos. 89-2616,90-1135 and 90-1189,s. 89-2616
• Citation: 917 F.2d 1093
• Parties: 54 Fair Empl.Prac.Cas. 317, 55 Empl. Prac. Dec. P 40,405 James L. TIMM; Robert Lofquest; William H. Clark; David Piercy; Ronald R. Ell; Kerry Wells; Dale A. Brown; Douglas O'Keefe; Pete Dwyer; and Harold Irwin, Individually and on behalf of others similarly situated, Appellees, v. Frank GUNTER, individually and in his capacity as Director of Nebraska Dept. of Correctional Services; Gary Grammer, individually and in his former capacity as Warden for Nebraska State Penitentiary; John Shaw, individually and in his former capacity as Associate Acting Warden for Nebraska State Penitentiary; Harold Clarke, Individually and in his capacity as Warden for the Nebraska State Penitentiary; The Class of All Present and Future Female Employees at the Nebraska State Penitentiary, Julie Kouma, solely in her capacity as representative of the Defendant Female Class, Appellants, The Class of All Present and Future Male Employees at the Nebraska State Penitentiary, and Tony Cruz, solely in his capacity as Representative of the Defendant Male Class, Intervenors. James L. TIMM; Robert Lofquest; William H. Clark; David Piercy; Ronald R. Ell; Kerry Wells; Dale A. Brown; Douglas O'Keefe; Pete Dwyer; and Harold Irwin, Individually and on behalf of others similarly situated, Appellees, v. Frank GUNTER, individually and in his capacity as Director of Nebraska Dept. of Correctional Services; Gary Grammer, individually and in his former capacity as Warden for Nebraska State Penitentiary; John Shaw, individually and in his former capacity as Associate Acting Warden for Nebraska State Penitentiary; Harold Clarke, Individually and in his capacity as Warden for the Nebraska State Penitentiary, Appellants, The Class of All Present and Future Female Employees at the Nebraska State Penitentiary, Julie Kouma, solely in her capacity as representative of the Defendant Female Class, The Class of All Present and Future Male Employees at the Nebraska State Penitentiary and Tony Cruz, solely in his capacity
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1093

917 F.2d 1093

54 Fair Empl.Prac.Cas. 317,

55 Empl. Prac. Dec. P 40,405

James L. TIMM; Robert Lofquest; William H. Clark; David

Piercy; Ronald R. Ell; Kerry Wells; Dale A. Brown;

Douglas O'Keefe; Pete Dwyer; and Harold Irwin, Individually and on behalf of others similarly situated, Appellees, v. Frank GUNTER, individually and in his capacity as Director

of Nebraska Dept. of Correctional Services; Gary Grammer,

individually and in his former capacity as Warden for

Nebraska State Penitentiary; John Shaw, individually and in

his former capacity as Associate Acting Warden for Nebraska

State Penitentiary; Harold Clarke, Individually and in his

capacity as Warden for the Nebraska State Penitentiary; The

Class of All Present and Future Female Employees at the

Nebraska State Penitentiary, Julie Kouma, solely in her

capacity as representative of the Defendant Female Class, Appellants,

The Class of All Present and Future Male Employees at the

Nebraska State Penitentiary, and Tony Cruz, solely

in his capacity as Representative of the

Defendant Male Class, Intervenors.

James L. TIMM; Robert Lofquest; William H. Clark; David

Piercy; Ronald R. Ell; Kerry Wells; Dale A. Brown;

Douglas O'Keefe; Pete Dwyer; and Harold Irwin, Individually and on behalf of others similarly situated, Appellees, v. Frank GUNTER, individually and in his capacity as Director

of Nebraska Dept. of Correctional Services; Gary Grammer,

individually and in his former capacity as Warden for

Nebraska State Penitentiary; John Shaw, individually and in

his former capacity as Associate Acting Warden for Nebraska

State Penitentiary; Harold Clarke, Individually and in his

capacity as Warden for the Nebraska State Penitentiary, Appellants,

The Class of All Present and Future Female Employees at the

Nebraska State Penitentiary, Julie Kouma, solely in her

capacity as representative of the Defendant Female Class,

The Class of All Present and Future Male Employees at the

Nebraska State Penitentiary and Tony Cruz, solely in his

capacity as Representative of the Defendant Male Class, Intervenors.

James L. TIMM; Robert Lofquest; William H. Clark; David

Piercy; Ronald R. Ell; Kerry Wells; Dale A. Brown;

Douglas O'Keefe; Pete Dwyer; and Harold Irwin, Individually and on behalf of others similarly situated, Appellees, v. Frank GUNTER, individually and in his capacity as Director

of Nebraska Dept. of Correctional Services; Gary Grammer,

individually and in his former capacity as Warden for

Nebraska State Penitentiary; John Shaw, individually and in

his former capacity as Associate Acting Warden for Nebraska

State Penitentiary; Harold Clarke, Individually and in his

capacity as Warden for the Nebraska State Penitentiary; The

Class of All Present and Future Female Employees at the

Nebraska State Penitentiary, Julie Kouma, solely in her

capacity as representative of the Defendant Female Class, Appellants,

The Class of All Present and Future Male Employees at the

Nebraska State Penitentiary, and Tony Cruz, solely

in his capacity as representative of the

Defendant Male Class, Intervenors.

James L. TIMM; Robert Lofquest; William H. Clark; David

Piercy; Ronald R. Ell; Kerry Wells; Dale A. Brown;

Douglas O'Keefe; Pete Dwyer; and Harold Irwin, Individually and on behalf of others similarly situated, Appellants, v. Frank GUNTER, individually and in his capacity as Director

of Nebraska Dept. of Correctional Services; Gary Grammer,

individually and in his former capacity as Warden for

Nebraska State Penitentiary; John Shaw, individually and in

his former capacity as Associate Acting Warden for Nebraska

State Penitentiary; Harold Clarke, Individually and in his

capacity as Warden for the Nebraska State Penitentiary; The

Class of All Present and Future Female Employees at the

Nebraska State Penitentiary, Julie Kouma, solely in her

capacity as representative of the Defendant Female Class;

The Class of All Present and Future Male Employees at the

Nebraska State Penitentiary, and Tony Cruz, solely in his

capacity as Representative of the Defendant Male Class, Appellees.

Nos. 89-2616, 89-2617, 90-1135 and 90-1189.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 10, 1990.

Decided Oct. 26, 1990.

Gregory H. Perry, Marie C. Pawol, Asst. Atty. Gen., argued, Lincoln, Neb., for Gunter.

Alan Peterson, Lincoln, Neb., for appellees.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

This is a class action brought by inmates of the Nebraska State Penitentiary (hereinafter "NSP"). They complain that for the prison administrators to allow female guards to perform pat searches and to see them nude or partially nude violates their right to privacy. The female guards counter with equal employment claims. The decision of the District Court ¹ granting the inmates partial relief has left all the parties less than satisfied, and all appeal. ² We affirm in part and reverse in part.

I.

NSP is an all-male maximum security prison designed to house prisoners who have been classified as requiring medium or maximum security. Its population averages more than 600 inmates. Housing at NSP is comprised of four main housing units numbered 1-4 (hereinafter "Units 1-4"); a maximum security unit (hereinafter "Unit 5"); and a dormitory-style medium security unit (hereinafter "Unit 6"). There are approximately thirty-five staff supervisors and 215 guards at NSP.

Each of the housing units in Units 1-4 contains two control rooms, one for each two-story wing in the unit. There is always an officer on duty in the control room. Besides having visual access to the two-story wing, the control room officer is responsible for monitoring the two shower rooms on the wing. This is done through the use of two small windows which look into the shower rooms. One window looks into the lower shower room, one into the upper room. Monitoring of the shower rooms is performed by occasionally glancing through the windows.

Each unit in Units 1-4 has four shower rooms, with three shower heads in each. There are no curtains in the shower room, although there is a curtain separating the shower room from an outer vestibule, which opens into the hallway. There is no door between the vestibule and the hallway. The rooms are situated so that the vestibule cannot be viewed from the control rooms, and the showers cannot be viewed from the hall.

Each cell in Units 1-4 contains an unenclosed toilet that is located immediately inside the cell door. When the door is opened inward, the toilet is in direct view from the hall. The solid cell doors contain a small window approximately five feet from the ground.

At fixed times throughout the day, the staff checks all cells by looking through the windows in order to determine that all inmates are present. The staff is required to see "living flesh" during this procedure to ascertain that inmates are in their cells. If the guard cannot see the inmate through the window, the guard knocks on the door. If there is no response, the door is opened. The hallways are subject to patrolling at all times. Unannounced room checks and "shakedowns" are also performed.

Unit 5 consists of three galleries, which contain single-inmate cells. It is the most secure unit at NSP. Each cell contains a toilet in the rear of the cell, which is visible through the window on the cell door. Strip searches are performed routinely in the "bullpen" area of the unit, a secured area in the hallway enclosed by open bars. The bullpen is visible from the hallway.

There are five individual shower stalls in Unit 5, located in the galleries' hallways. The shower heads are located on the wall opposite the cells, with a partial wall running parallel to the wall. The sides of each shower stall are open. Guards observe the showering inmates from approximately thirty feet away, through two sets of open bars.

Unit 6 is a dormitory-style unit which houses only medium-custody inmates. It contains three open sleeping "bays," with single beds arranged in rows in a large room. Inmates dress and undress next to their bed in the sleeping bay; there is no dressing screen available or permitted. The bathrooms in Unit 6 can be viewed from a window in a hallway. Toilets are visible from the window; some have partitions but none have doors. The showers in these bathrooms are visible from either the window or the doorway. Some of the showers have curtains; the prison plans to install curtains on all showers in Unit 6. The bays and bathrooms are subject to continual visual surveillance, counts, and shakedowns.

The outside recreation "yard" contains a urinal located under the guard tower, which is approximately thirty feet above the urinal. The urinal is screened on three sides by a waist-high wall. Inmates are also permitted to leave the yard to use the toilets in the housing units at certain times.

Pat searches are conducted routinely at NSP: during shakedowns, when inmates move between certain areas of the penitentiary, and when it is deemed necessary for security purposes. The pat searches performed at NSP are clothed searches of the body, and involve the guard running his or her hands over the inmate's clothing. It takes approximately ten seconds to perform a pat search. Strip searches are performed when inmates enter and leave the visitors' area, and at other times when deemed necessary. Strip searches are performed on a routine basis only in Unit 5.

In 1983, prison administrators opened all jobs at NSP to applicants on a sex-neutral basis. Female employees were allowed to conduct pat searches on the same basis as male employees, and were put in positions which allowed observation of inmates showering and using toilet facilities, but were not permitted to conduct strip searches.

This policy was challenged by two inmates in 1985. In Nielsen v. Gunter, No. CV83-L-682 (Mag. Neb. July 15, 1985), the Magistrate ³ ruled that inmates be given access to showers not...