Oliver v. Scott

Decision Date09 January 2002
Docket NumberNo. 00-10898,00-10898
Citation276 F.3d 736
Parties(5th Cir. 2002) Norman Charles Oliver, Plaintiff-Appellant, v. Wayne Scott, et al., Defendants, Wayne Scott, Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, and Corrections Corporation of America, Defendants-Appellees,
CourtU.S. Court of Appeals — Fifth Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Texas

Before Baldock,* Smith, and Emilio M. Garza, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this civil rights action brought pursuant to 42 U.S.C. § 1983, state jail inmate Norman Oliver challenges the practice of permitting female guards to monitor male inmates in bathrooms and showers but not using male guards to monitor female inmates under similar circumstances. Agreeing with the district court that there is no constitutional violation, we affirm that court's summary judgment.


The Dawson State Jail Facility ("Dawson") is a correctional facility owned by the State of Texas through the Texas Department of Criminal Justice-State Jail Division ("TDCJ"). Through August 1998, Corrections Corporation of America ("CCA"), a private corporation, operated Dawson under a management contract with Dallas County, which in turn contracted with TDCJ. Management and Training Corporation ("MTC") assumed operation of the facility in September 1998.

Dawson, a ten-story facility housing about 2,000 inmates, began operations in July 1997. During its management, CCA housed inmates on all floors except the first and second. Dawson had only male inmates from July to November 1997, when female inmates began arriving. From November 1997 through August 1998, Dawson had about 250 females and 1,750 males.

The females were on the ninth floor, and the males were on the others. In the spring of 1998, at the direction of TDCJ, limited partitions were added to the bathroom areas of the ninth floor, where the females were housed; there was no instruction to install partitions on the male floors.

Oliver arrived in July 1997 as a post-conviction transfer inmate, serving concurrent ten- and nine-year sentences for robbery by threats and robbery causing bodily harm. Because of overcrowding in TDCJ facilities, Oliver had not been processed into one of TDCJ's Institutional Division facilities. Although Dawson was constructed to incarcerate state jail felons, a substantial number of male inmates there in 1997-98 were transfer inmates.

The status of transfer inmates is considerably different from that of state jail felons. Transfer inmates are awaiting transfer from a county jail to an Institutional Division facility; they are felons convicted of crimes resulting in greater sentences and fines than those imposed on state jail felons. Transfer inmates at Dawson were housed separately from state jail felons during CCA's management. No female transfer inmates were housed there during CCA's management; all female inmates were state jail felons, and most were non-violent offenders serving short sentences for crimes such as hot check writing and driving while intoxicated.

A few female guards, but mostly male, were assigned to monitor the male housing areas; this was necessary to staff all housing areas adequately, for security reasons. Moreover, prohibiting female officers on the male floors would conflict with CCA's equal employment policies and practices, which prohibit sex discrimination.


Oliver sued state correctional officials Wayne Scott, Gary Johnson, and Janice Wilson, and CCA and MTC, alleging violations of his right to privacy, right to freedom from unreasonable search and seizure, and right to equal protection under the Fourth and Fourteenth Amendments.1 Oliver complains that female prison employees conducted strip searches of male inmates and observed male inmates showering and using the bathroom. Oliver alleges that male prison employees did not conduct strip searches of female inmates or observe female inmates in the bathroom.

Dawson had showers and toilet partitions that shielded female prisoners from view during their use of the facilities but did not provide the same privacy for male prisoners. Female officers made visual checks of the dorm areas, including these shower and bathroom areas. Oliver claims that the individual state defendants, as TDCJ executives, promulgated the policies, practices, and standards under which these alleged constitutional violations occurred and failed adequately to train and/or supervise their employees regarding strip search procedures.


The district court dismissed Oliver's claims against Scott and Johnson for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The court held that Oliver's transfer mooted his request for injunctive relief and that ongoing judicial supervision of a prisoner class action precluded additional judicial oversight of strip search procedures. The court held that the Eleventh Amendment bars damage claims against the officials in their official capacity and that the vague allegations about strip searches did not suffice to show individual liability. Oliver's claim against Wilson and MTC was settled.

The district court also granted summary judgment in favor of CCA, holding that Oliver had failed to allege a specific unconstitutional search and seizure; Oliver did not provide any specific evidence of cross-sex strip searches. The court ruled that the CCA's interests in preserving security and equal employment opportunities justified any privacy invasion caused by cross-sex monitoring. The court reasoned that differences in the dangerousness of the male and female prisoners prevented Oliver from showing that they were "similarly situated" under the Equal Protection Clause. Finally, the court held that the Prison Litigation Reform Act ("PLRA") barred recovery, because Oliver had not demonstrated a physical injury.


"We review the district court's ruling under [rule] 12(b)(6) de novo." Shipp v. McMahon, 234 F.3d 907, 911 (5th Cir. 2000), cert. denied, 121 S. Ct. 2193 (2001). When ruling on a rule 12(b)(6) motion, the court must liberally construe the complaint in favor of the plaintiff and assume the truth of all pleaded facts. Brown v. NationsBank Corp., 188 F.3d 579, 586 (5th Cir. 1999). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). We must construe Oliver's pro se brief liberally in his favor. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The generic pleading requirements of Fed. R. Civ. P. 8 govern suits against individual defendants in their official capacity. Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). Oliver need only provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (citation omitted).

Plaintiffs suing governmental officials in their individual capacities, however, must allege specific conduct giving rise to a constitutional violation. Anderson, 184 F.3d at 443. This standard requires more than conclusional assertions: The plaintiff must allege specific facts giving rise to a constitutional violation. Baker v. Putnal, 75 F.3d 190, 194 (5th Cir. 1996).


Oliver requested two injunctions: (1) one banning opposite-sex strip searching in non-exigent circumstances and in front of non-security personnel; and (2) another requiring the installation of privacy partitions in front of shower doors and between toilets. The district court refused to exercise jurisdiction over the first request for injunctive relief, because TDCJ's strip search policies remained the subject of ongoing supervision by another federal district court. See Aranda v. Lynaugh, No. H-89-277 (S.D. Tex.). Individual prisoners cannot pursue suits for "equitable relief within the subject matter of the class action." Gillespie v. Crawford, 858 F.2d 1101, 1102-03 (5th Cir. 1988) (en banc). Claims for equitable relief can be made only through the class representative. Long v. Collins, 917 F.2d 3, 4-5 (5th Cir. 1990).

Even construing Oliver's pro se brief liberally, he does not raise this issue on appeal. Because Oliver does not contest dismissal of this claim, we need consider only his request for an injunction requiring privacy partitions.

Even assuming, arguendo, that Oliver has pleaded facts sufficient to support requiring privacy partitions at Dawson, that request is moot. The transfer of a prisoner out of an institution often will render his claims for injunctive relief moot.2 Oliver, however, argues that his alleged constitutional violations are "capable of repetition yet evading review."3

Oliver must show either a "demonstrated probability" or a "reasonable expectation" that he would be transferred back to Dawson or released and reincarcerated there. Murphy v. Hunt, 455 U.S. 478, 482 (1982). At its most lenient, the standard is not "mathematically precise" and requires only a "reasonable likelihood" of repetition. Honig v. Doe, 484 U.S. 305, 318-19 (1988). Even under the most permissive interpretation, neither Oliver's complaint nor his appellate brief supports the claim that the constitutional violation is capable of repetition.

Oliver's brief alleges that the TDCJ's statewide policy of permitting cross-sex searches and monitoring makes the privacy violations capable of repetition. The complaint itself, however, alleges, at most, facts sufficient only to support a claim for constitutional violations at Dawson. The complaint alleges that the warden acted "pursuant to" TDCJ policies, but it fails to identify any specific policy or to explain...

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