OLIVER v. SCOTT, (N.D.Tex. 1999)

BAREFOOT SANDERS, SENIOR JUDGE.

Before the Court are Defendant Corrections Corporation of America's Motion for Summary Judgment, filed March 31, 2000; Plaintift's Response, filed April 24, 2000; and Defendant's Reply, filed May 26, 2000. Upon review of the arguments and authorities, as well as the evidentiary submissions of the parties, the Court finds that there is no genuine issue as to any material fact, and that Defendant Corrections Corporation of America ("CCA") is entitled to judgment as a matter of law. Therefore, for the reasons stated below, CCA's Motion for Summary Judgment is GRANTED.

I. PROCEDURAL BACKGROUND

Plaintiff Norman Charles Oliver brings this suit alleging violations of his Fourth Amendment right to be free from unreasonable search and seizures and to privacy, and his Fourteenth Amendment right to equal protection. Although now incarcerated in the Rosharon Unit of the Texas Department of Criminal Justice-Institutional Division, Oliver formerly resided at the Jesse R. Dawson State Jail Facility from July 1997 to December 1998. Plaintiff complains of the conditions at the Dawson State Jail Facility.

Defendants in this lawsuit originally included Wayne Scott, Executive Director of the Texas Department of Criminal Justice (`TDCJ'); Gary Johnson, Director of the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID"); Janice K. Wilson, Warden of Jesse R. Dawson State Jail Facility; Corrections Corporation of America; and Management and Training Corporation, Inc. Defendants Scott and Johnson were dismissed by the Court on February 4, 2000. Plaintiff has settled its claims against Janice K. Wilson and Management and Training Corporation, Inc., and voluntarily dismissed them on July 13, 2000. The sole remaining Defendant is CCA, who now moves for summary judgment.

III FACTUAL BACKGROUND

From 1997 through August 30, 1998, the Jesse R. Dawson State Jail was operated by a private, for-profit corporation-Corrections Corporation of America — pursuant to a contract with the TDCJ. (Defendant's Appendix at 1). Dawson State Jail is a ten floor facility, housing approximately 2000 inmates. (Def's App. at 2). From November 1997 until August 1998, Dawson housed approximately 250 female inmates and approximately 1,750 male inmates. (Def's App. at 2).

Dawson State Jail was originally constructed to incarcerate state jail felons. (Def's App. at 2). However, due to overcrowding in TDCJ facilities, Dawson housed a number of "transfer inmates" who were post-convictions inmates awaiting transfers from a county jail to a TDCJ facility. (Def's App. at 2). Plaintiff Oliver was such a transfer inmate, serving concurrent ten and nine year sentences for robbery by threats and robbery causing bodily injury. (Def's App. at 2) There were no female transfer inmates incarcerated at Dawson during the time CCA ran the jail; the women were all state jail felons, and few women convicted of violent crimes were incarcerated at Dawson. (Def's App. at 3).

The female inmates were confined on the ninth floor of the Dawson facility; men were incarcerated on all other housing floors. (Def's App. at 2). The shower and toilet facilities on the ninth floor include privacy partitions made of concrete and glass brick; the other floors, with minor exceptions, do not have any privacy partitions in front of the toilet or shower facilities. (See generally Appendix to Plaintiffs Response to Defendant MTCI's Motion for Summary Judgment). Therefore, male inmates using the toilet facilities are exposed to the general living area. ( Id.; Oliver Affidavit at 2).

Correctional officers employed by CCA monitored all floors of the Dawson facility to ensure security and safety. (Def's App. at 2), CCA employed both male and female correctional officers under its equal opportunity employment practices, and thus female officers were often present in the housing areas of the jail. (Def's App. at 3-4). These female officers would make visual checks of dorm areas, including shower and bathroom areas. (Def's App. at 4-5)

III. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could possibly find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlfe Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED.R.CIV.P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).

In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).

IV. ANALYSIS

Plaintiff asserts three claims against CCA for violation of his constitutional rights. Plaintiff asserts (1) that Defendant CCA violated his Fourth Amendment right to be free from unreasonable search and seizures by allowing strip searches by female correctional officers; (2) that Defendant CCA violated his Fourth Amendment right to privacy by these searches, and by failing to provide privacy partitions for male inmates in the shower and toilet areas; and (3) that Defendant CCA violated his Fourteenth Amendment right to equal protection by providing privacy partitions to female inmates in Dawson without providing equal privacy for male inmates. The Court will consider each claim in turn.

A. Fourth Amendment: Unreasonable Search and Seizures

In this Court's Memorandum Opinion and Order of February 4, 2000, the Court dismissed Plaintiff's complaint regarding the TDCJ policy on strip searches of male inmates by female correctional officers.

Other than a general complaint regarding the strip search policy, Plaintiff identifies no specific search of his body by a female guard that occurred at Dawson during the time it was operated by Defendant CCA. The only administrative grievance filed by Oliver during this time, on January 15, 1998, concerns female officers observing male inmates in the shower and bathroom areas, (Def App. at 7), and does not point to a specific unconstitutional search. Therefore, Plaintiff has failed to allege, or to nor provide any evidence, that he was subject to an unconstitutional strip search while he was incarcerated under the supervision of CCA, and his claim must be dismissed.

B. Fourth Amendment: Privacy

Plaintiff next contends that his right to privacy under the Fourth Amendment was violated by the failure of CCA to provide privacy partitions, and the instances when female correctional officers were present when Plaintiff was showering or using the toilet. A prisoner's right to privacy is dismished by the needs and exigencies of the institution in which he is incarcerated. See Elliot v. Lynn, 38 F.3d 188, 190-91 (5th Cir. 1994). Therefore, the Fourth Amendment requires only that a search of a prisoner be reasonable under the facts and circumstances under which they are performed. See id. at 191.

Assuming arguendo that the visual monitoring of dorm areas at Dawson is a "search" that implicates Defendant's Fourth Amendment rights, his limited privacy right must be balanced with the governmental interest in security. See Hudson v. Palmer, 468 U.S. 517, 527 (1983). Because prison administrator's decisions and actions in prison context are entitled to great deference from the courts, the burden of proving reasonableness of search for Fourth Amendment purposes is a light burden. See Elliot v. Lynn, 38 F.3d 188, 191 (5th Cir. 1994). Defendant shows that the visual checks of dorm areas, including shower and bathroom facilities, do not involve "constant intrusive observation, but rather quick glances to monitor" (Def's App. at 2) and that the checks are to be conducted in a manner that avoids embarrassment or indignity. (Del's App. at 11). Moreover, Defendant has presented evidence that security is a concern at the Dawson State Jail Facility, particularly among male inmates, and that visual monitoring of all areas of the housing floors is necessary to maintain the safety of the inmates and prison staff. (Def's App. at 2). Plaintiff does not contradict the Defendants evidence regarding safety concerns, and thus there is no genuine issue of material fact. As the Supreme Court has stated, "a right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates . . . required to ensure institutional security and internal order." Hudson v. Palmer, 468 U.S. 517, 527-28 (1984) (footnote omitted).

Further, in determining the reasonableness of the search, the court should consider the "scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted . . ." Bell v. Wolfish, 441 U.S. 520, 559 (1979). Other than conclusory statements that female corrections officers were present when he was showering or using the bathroom facilities, Plaintiff fails to establish how often female guards were present when he used the facilities, how long they stayed, or the reasons they were present. Without some proof of facts to establish the presence of the female guards was unreasonable, Plaintiff fails to establish a violation of this right to bodily privacy. The Court refuses to hold that mere presence of female officers in dorm areas when male inmates are unclothed is a violation of the limited privacy rights of prisoners.

The Court notes that Fifth Circuit, while not directly addressing Plaintiffs claim, has opined on analogous issues. For instance, the Fifth Circuit held that there was no constitutional violation when female officers were present during a strip search of an inmate. Letcher v. Turner, 968 F.2d 508, 510 (5th Cir. 1992). In that case, the Circuit cited one of its unpublished opinions upholding the presence of female guards while male inmates showered, and also noted that the Eighth Circuit had held that female guards could monitor male inmates during showers. Letcher, 968 F.2d at 510 (citing Burnett v. Collins, 940 F.2d 1530 (5th Cir. 1991) and Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990)). Other circuits that have similarly held that a female correctional officer can supervise nude male prisoners include the Seventh and the Ninth. See Johnson v. Phelan, 69 F.3d 114, 150 (7th Cir. 1995); Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997) (discussing cases). Plaintiff has provided no authority to suggest that the Court should diverge from this precedent to hold that prisoner's limited privacy rights are violated when a female guard is present when he showers or uses the bathroom.

Finally, Plaintiff asserts for the first time in his Response that his rights were violated because he was forbidden from shielding his body parts from view by a newspaper or towel. Again, plaintiff makes merely conclusory statements regarding these alleged incidents: Oliver states "CCA never told me that I could cover my genitalia . . . while on the toilet." (Oliver Affidavit at 3). Clearly the correctional officers did not violate the Fourth Amendment by failing to encourage Plaintiff to shield himself Oliver also states in a conclusory manner "I was not permitted to cover my genitalia with a newspaper when I used the toilet . . ." (Oliver Affidavit at 3) but does not allege when, if ever, he was prohibited, whether it was a CCA employee, how many times it may have happened, or any facts that would have established the unreasonableness of such a prohibition. Such conclusory factual statements fail to create a genuine issue of material fact that would preclude a grant of summary judgment to Defendant CCA.

C. Fourteenth Amendment: Equal Protection

Finally, Plaintiff claims that he was discriminated against on the basis of his gender, thereby denying him equal protection under the law. Specifically, Plaintiff alleges that by providing privacy partitions in bath and shower areas to female inmates at Dawson, and not male inmates such as himself, CCA violate his right to equal protection.

To succeed in his equal protection claim, Plaintiff Oliver must show purposeful discrimination resulting in a discriminatory effect among persons similarly situated. See Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (citing McCleskey v. Kemp, 481 U.S. 279 (1987)). Essential to Plaintiff's equal protection claim is the argument that female and male inmates at Dawson State Jail were similarly situated. A review of the uncontested evidence shows that they were not.

Plaintiff does not dispute that Dawson State Jail housed male transfer inmates convicted of violent crimes, but housed only female inmates convicted of state jail felonies. A state jail felony is the lowest level of felony classified by Texas, and is punishable with a maximum of two years confinement. See TEX. PENAL CODE § 12.04, 12.35. Examples of state jail felonies are theft of over $1,500 and credit card abuse. See TEX. PENAL CODE § 31.03, 32.31. The female inmates at Dawson were largely non-violent offenders. (D's App. at 3). The male inmates, on the other hand, included transfer inmates convicted of violent crimes serving longer sentences. (Def's App. at 2). It is clear from these facts that the male and female inmates were not similarly situated.

The Fifth Circuit recently suggested that in determining whether prisoners were similarly situated for the purpose of an equal protection claim, the Court should consider, inter alia, "the number of inmates housed in each facility, their average length of stay, their security levels, and the statistical incidence of violence and victimhood." See Yates v. Stadler, ___ F.3d ___ 2000 WL 874660 (5th Cir. June 30, 2000) (citing Klinger v. Dep't of Corrections, 31 F.3d 727 (8th Cir. 1994)). Defendant CCA provides evidence that the Dawson State Jail Facility housed nearly six times as many men then women, the men included transfer inmates that were convicted of crimes with longer sentences than the women, and that there was more violent gang activity and sexual predatory behavior in male units. (D's App. at 2-3). Plaintiff does not contest this evidence, and offers no conflicting facts that would show similarities between the male and female inmates at Dawson.

Particularly when one considers the proffered reason for the absence of privacy partitions — safety — the difference between male and female inmates at Dawson is obvious. Having failed to establish a factual issue that the male and female prisoners at Dawson State Jail were similarly situated, Plaintiff's equal protection claim is denied as a matter of law.

D. Injury

Plaintiff Oliver seeks damages for the mental and emotional distress he allegedly experienced as a result of his required use of toilet and shower facilities in front of inmate and guards. The Prison Litigation Reform Act conditions any recovery for mental or emotional injury on a showing of physical injury. See 42 U.S.C. § 1997e(e). Although the statute does not define "physical injury," the Fifth Circuit has held that the injury must be "more than de minimus." See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999) (suggesting that the Eighth Amendment "more than de minimus, less than significant" injury standard is incorporated in § 1997e).

Plaintiff states in his affidavit that he suffered "severe stomach pains" as a result of the lack of privacy partitions in the bathroom areas at the Dawson State Jail. (Oliver Affidavit at 4). No mention is made of the length or severity of his stomach pains, nor whether he was ever medically diagnosed or treated for these pains. Nor is there any evidence of causation — Plaintiff asserts that the stomach pains were because he "tried to control [his] body so that [he] would not need to defecate." (Oliver Affidavit, ¶ 27). Thus, it appears that the stomach pains were self-induced, and there is little to show that any physical injury was caused by any constitutional violation by Defendants.

The Court finds that Plaintiff Oliver's stomach pains are insufficient injury to support a claim for emotional and mental distress damages under the Prison Litigation Reform Act, and thus his claims for damages against CCA are dismissed.

V. CONCLUSION

Defendant CCA's Motion for Summary Judgment is GRANTED and all claims against Defendant CCA are DISMISSED WITH PREJUDICE. Judgment will be entered accordingly.

SO ORDERED.