Fortner v. Thomas

• Decision Date: 18 February 1993
• Docket Number: No. 90-8924,90-8924
• Citation: 983 F.2d 1024
• Parties: Johnny FORTNER, Plaintiff-Appellant, Tony Anderson, Plaintiff, Paul J. Tyner, Plaintiff-Appellant, Darrell Phillips, Johnny Sorey, and James McClendon, Plaintiffs, v. A.G. THOMAS, Warden, Thomas Byrd, Executive Assistant and Donnell Lewis, Hearing Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1024

983 F.2d 1024

24 Fed.R.Serv.3d 1271

Johnny FORTNER, Plaintiff-Appellant Tony Anderson, Plaintiff Paul J. Tyner, Plaintiff-Appellant Darrell Phillips, Johnny Sorey, and James McClendon, Plaintiffs, v. A.G. THOMAS, Warden, Thomas Byrd, Executive Assistant and Donnell Lewis, Hearing Officer, Defendants-Appellees.

No. 90-8924.

United States Court of Appeals Eleventh Circuit.

Feb. 18, 1993.

James Elliott, Savannah, GA (court-appointed), for plaintiffs-appellants.

John C. Jones, State Law Dept., Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before HATCHETT, Circuit Judge, HENDERSON and ESCHBACH ^*, Senior Circuit Judges.

HATCHETT, Circuit Judge:

As a matter of first impression in this circuit, we hold that a prisoner retains a constitutional right to bodily privacy. We remand this case to the district court for application of the test announced in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-63, 96 L.Ed.2d 64 (1987), to determine whether the prison regulations unreasonably impinge on the prisoners' constitutional rights to bodily privacy.

PROCEDURAL BACKGROUND

The appellants, male inmates at Georgia State Prison, appeal the dismissal of their 42 U.S.C. § 1983 action, alleging that the appellees, several correctional officials, violated their constitutional rights of privacy and due process. For the alleged violations of their constitutional right of privacy, the appellants seek monetary damages and injunctive relief prohibiting female correctional officers from assignments that allow the officers to view the appellants nude in their living quarters, including their use of the showers and the toilet. The appellants also seek monetary and injunctive relief for the alleged violations of their rights to due process relating to disciplinary proceedings that occur when the female correctional officers charge them with indecent exposure, obscene acts, and insubordination.

On October 20, 1989, the appellees filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(a), asserting qualified immunity. On November 14, 1989, the appellants filed a first amended complaint in response to the appellees' motion to dismiss, seeking to add two disciplinary hearing officers as "key players" in the violation of their due process rights. On September 14, 1990, the district court adopted the report and recommendation of a magistrate judge, and dismissed the appellants' right to privacy claims on the grounds of qualified immunity and the due process claims based on the consent orders entered in Guthrie v. Evans.

In their complaint, the appellants claim that this controversy began anew when prison authorities began assigning female correctional officers to duties in the living In this complaint, the appellants also complain that the appellees have violated Policy Statement 590.1, which governs inmate discipline. The appellants claim that disciplinary officers improperly punished them with severe isolation and segregation sanctions, instead of the appropriate punishments for the moderate offenses of exposure, exhibition, and obscene actions. The appellants also claim that the female officers wrongfully charged them with insubordination, a high severity charge, instead of the proper exposure, exhibition, and obscene action offenses. Additionally, the appellants claim that the female officers' false disciplinary reports resulted in isolation and segregation sanctions being imposed ninety-nine percent of the time, even though the disciplinary proceedings occurred without the benefit of physical evidence, witness testimony, proper notice, or the presence of the charging officer. The appellants detailed the disciplinary process at the Georgia State Prison in their motion to amend the complaint, summarizing the charges in several disciplinary reports and also describing the disposition of the matters.

                quarters of male inmates.   The appellants claim that the female officers act unprofessionally when they view nude male inmates walking around in undershorts, showering, and using the toilet.   The appellants claim that the female officers flirt, seduce, solicit, and aroused them to masturbate and otherwise exhibit their genitals for the female officers' viewing.   The appellants also claim that the female officers file false disciplinary reports for obscene acts and insubordination in order to avoid reprimand when other prison authorities discover them engaged in such unprofessional activity.   The appellants describe the relevant facilities in their living quarters at the Georgia State Prison.   The appellants claim that the female officers file the disciplinary reports after spying on them through a one-inch crack in their cell doors, or after looking at them in the shower through a five by ten-inch window on the shower door
                

ISSUES AND CONTENTIONS

The appellants contend that the district court erred in denying their November 14, 1989 amendment to the complaint adding the disciplinary hearing officers as additional defendants. The appellants argue that the district court committed clear error in denying their right to amend their complaint at least once as a matter of course before the appellees filed a responsive pleading. The appellants also contend that the district court dismissed their complaint improperly based on a finding that the appellees are entitled to qualified immunity. The appellants argue that the district court erred in determining that the female officers did not violate a clearly established right, because the generalized constitutional right to privacy was clearly established at the time. In addition, the appellants contend that the district court erred in dismissing their due process claims based on the consent orders entered in Guthrie. The appellants argue that their complaint seeks both injunctive relief and monetary damages which makes a contempt proceeding under Guthrie an inadequate remedy for their claims.

The appellees respond that the district court properly denied the appellants' motion to amend because their motion to dismiss constituted a responsive pleading within the meaning of rule 15(a); and also contend that the district court properly concluded that qualified immunity shields them from the appellants' right to privacy claims, and that the due process claims are precluded under Guthrie. We address each of these issues separately.

DISCUSSION

This court must review de novo a district court's order dismissing a complaint, accepting all allegations in the complaint as true and construing the facts in a light favorable to the plaintiff. Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991).

I. PRISONERS' RETAINED PRIVACY RIGHTS

We first note that generally, the existence of an affirmative defense will not support a rule 12(b)(6) motion to dismiss for failure to state a claim. A district court, however, may dismiss a complaint on a rule 12(b)(6) motion "when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint." Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986). In considering a defendant's motion to dismiss based on qualified immunity, the district court must examine the complaint to determine "whether, under the most favorable version of the facts alleged, defendant's actions violate clearly established law." Bennett v. Parker, 898 F.2d 1530, 1535 n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring), cert. denied, --- U.S. ----, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991). In this case, the district court granted the appellees' motion to dismiss based on qualified immunity, after concluding that a prisoner's constitutional right to bodily privacy is not a "clearly established right" in this circuit. As to the appellants' claim for damages on the alleged privacy violations, we agree that facts sufficient to give rise to a consideration of qualified immunity appears on the face of the appellants' complaint.

A. In determining whether a government official has violated a clearly established constitutional right, a court must consider whether the contours of the right were sufficiently clear that reasonable officials, at the time of their actions, would have understood that what they were doing violated that right. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The nonexistence of a decision specifically addressing the alleged right is a significant consideration in determining whether the right is clearly established. See Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987) (recognizing that a prisoner's First Amendment right not to be disciplined when he failed to respond to his committed name is not clearly established based upon general rulings that prisoners retained limited First Amendment rights). In addition, the existence of Supreme Court cases or cases in this circuit that recognize the alleged right is particularly important in determining whether the law is sufficiently clear to a reasonable official. See Muhammad, 839 F.2d at 1424-25 & n. 7 (canvassing the cases in this circuit to determine whether an official violated clearly established law, and recognizing that the official's awareness of a district court opinion recognizing the alleged right cannot, of itself, settle the law where the district court sits outside this circuit).

In this case, the district court properly found that neither this court nor the Supreme Court had recognized that a prisoner retains a constitutional right to bodily privacy. See generally Harris v. Thigpen, 941 F.2d 1495, 1513 n. 26 (11th Cir.1991) (recognizing that prisoners retain certain fundamental rights of privacy, even though...