Baker v. Welch

Full title: LACY BAKER, Plaintiff, -against- PAROLE OFFICER TONICE WELCH SR. PAROLE…

Court: United States District Court, S.D. New York

Date published: Dec 10, 2003

03 Civ. 2267 (JSR) (AJP) (S.D.N.Y. Dec. 10, 2003)

Opinion

03 Civ. 2267 (JSR) (AJP)

December 10, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

Pro se male plaintiff Lacy Baker brings this action pursuant to 42 U.S.C. § 1983, alleging, inter alia, violation of his constitutional right to privacy, when the urine drug test that he underwent as a condition of his parole was conducted by a female parole officer who viewed Baker's penis. (Dkt. No. 2: Compl. ¶¶ 50-71.)

For the reasons set forth below, defendants' summary judgment motion (Dkt. Nos. 19-23) should be GRANTED, because defendants are protected by qualified immunity.

FACTS

In April 2001, Lacy Baker was convicted in Manhattan Criminal Court and incarcerated for fifth degree criminal sale of a controlled substance. (Dkt. No. 2: Compl. ¶ 11.) Mr. Baker was paroled on September 12, 2002. (Compl. ¶ 12.) Tonice Welch, a female parole officer, was assigned as Mr. Baker's parole officer. (Id.,; see also Dkt. No. 28: Baker Opp. Br. at 3.) Mr. Baker's first report to his parole office was on September 13, 2002; he met with another officer who explained the conditions of his parole and told him to return to meet with Ms. Welch on September 16. (Compl. ¶ 13.) When Mr. Baker met with Ms. Welch on September 16, 2002, she told him to provide a urine specimen for drug testing as part of his special conditions of parole. (Compl. ¶ 14.) Ms. Welch collected a second urine sample from Mr. Baker on October 21, 2002, which tested positive for drugs, resulting in a violation of his parole. (Compl. ¶¶ 19-28, 36-37; see also Dkt. No. 28: Baker Opp. Br. at 9.)

The parties offer differing versions of the conduct of the urine testing procedures:

Ms. Welch's Version of the Urine Testing. Supported By Senior Parole Officer Mr. Rodriguez

Mr. Baker, at the time of his release to parole, was given special conditions of release including that he submit to substance abuse testing as directed by his parole officer. (Dkt. No. 21: Welch Aff. ¶ 3;see Dkt. No. 20: Rodriguez Aff. Ex. A; see also Dkt. No. 28: Baker Opp. Br. at 3.) According to Ms. Welch, the present Division of Parole ("DOP") Policy and Procedures for substance abuse testing, including urine testing, have been in effect since April 2001. (Welch Aff. ¶ 4; Rodriguez Aff. ¶ 6 Ex. B.) Once it has been established that a parolee will be tested, the parole officer must follow these procedures. (Welch Aff. ¶ 4; Rodriguez Aff. ¶ 6.) Ms. Welch asserts that the procedure for a urine test is the following: "the parole officer witnessing the urine specimen collection must: escort the parolee to the bathroom area where he or she can submit a urine sample; hand the parolee a generic specimen container that has been labeled with the parolee's name, NYSID number and date the specimen was collected; witness the parolee urinating into the specimen container . . ." (Welch Aff. ¶ 4; accord, Rodriguez Aff. ¶ 6 Ex. B: Procedures ¶ I.D.)

Ms. Welch asserts that on September 16, 2002, she escorted Mr. Baker to the bathroom for the purpose of obtaining a urine sample for drug testing. (Welch Aff. ¶ 6.) "Both of the bathrooms are 4 feet wide and 6 feet in length, with the length of each extending another 4 feet into the hallway. Each bathroom has a door that is always maintained open while a male parolee provides a urine sample." (Welch Aff. ¶ 6.) Ms. Welch states that in the bathroom, she handed Mr. Baker the container and instructed him to begin urinating into the toilet while facing away from her, to switch the flow of the urine into the specimen container until it was three-fourths full, and to finish urinating into the toilet. (Welch Aff. ¶ 7.) According to Ms. Welch: "While [Mr. Baker] was following these instructions, I casually observed him urinating into the specimen container from a distance of 8 feet away with [Mr. Baker's] back towards me at all times. At no time did I observe or attempt to observe [Mr. Baker's] genitalia." (Welch Aff. ¶ 7.) Ms. Welch assets that Mr. Baker did not complain about any actions that she took during the urine testing. (Welch Aff. ¶ 8.)

On October 21, 2002, Mr. Baker arrived at Ms. Welch's office, where she told him that another urine test would be conducted. (Welch Aff. ¶ 10.) Ms. Welch asserts that she escorted Mr. Baker to the bathroom and handed him the specimen container. (Id.) At that point, Mr. Baker objected to the test but relented when Ms. Welch informed him that failure to comply would result in a violation of his parole. (Id.) Ms. Welch gave Mr. Baker the same instructions as the prior occasion. (Id.) As with the first test, according to Ms. Welch: "While [Mr. Baker] was following these instructions, I casually observed him urinating into the specimen container from a distance of eight feet away with [Mr. Baker's] back towards me at all times. At no time did I observe or attempt to observe [Mr. Baker's] genitalia." (Welch Aff. ¶ 10.) The results of this test proved positive for cocaine, and Mr. Baker's parole accordingly was revoked. (Welch Aff. ¶¶ 11, 13.) According to Ms. Welch: "Besides not initially wanting to take the urine test, at no point did [Mr. Baker] complain of having to follow any of the above procedures, or of any actions that I took during this process." (Id.)¹

1 Ms. Welch asserts that she did not receive any complaint or allegation from Mr. Baker that she had subjected him to inappropriate testing until March 2003 when Mr. Baker wrote a letter to Ms. Welch's office requesting a different parole officer upon his re-release from prison. (Welch Aff. ¶ 15; Rodriguez Aff. ¶ 9.)

Ms. Welch's testimony was supported by her supervisor, Senior Parole Officer Filberto Rodriguez. (See generally Dkt. No. 20: Rodriguez Aff.) Mr. Rodriguez was not present when Ms. Welch took urine samples from Mr. Baker on September 16 and October 21, 2002 (Rodriguez Aff. ¶ 7), but Mr. Rodriguez testified to his familiarity with Ms. Welch's usual procedures for urine testing:

As a Senior Parole Officer, I am familiar with the manner in which the parole officers under my supervision secure a urine sample from a parolee for testing, including samples taken by female parole officers from male parolees. In my presence, Parole Officer Welch has always followed the DOP policy and procedures delineated above, including witnessing the parolee urinating into the specimen container. Parole Officer Welch witnessed the parolees urinating into the container by watching from the doorway at a distance of 4 to 8 feet behind the parolee, while he has his back towards her and is facing either the urinal or toilet at the opposite end of the bathroom. If Parole Officer Welch or any other female parole officer suspects that a male parolee is attempting to tamper with his urine sample, at that point a male parole officer will be assigned to take the parolee's sample by first searching his clothing and then visually observing the parolee from the front urinating into the cup.

(Rodriguez Aff. ¶ 8.)

The Court notes that the DOP's "Policy Procedure for Substance Abuse Testing" (Rodriguez Aff. Ex. B) is much less specific than what Ms. Welch and Mr. Rodriguez describe. The OOP's procedure merely states that" [t]he Parole Officer must then witness the release urinating into the generic specimen container" (Rodriguez Ex. B ¶ I.D. 1.c;accord, id. ¶ I.D.3.c., ¶ I.D.4.c), but does not specify how close or far away the parole officer should be from the parolee.

Mr. Rodriguez also explained why female parole officers conduct urine tests of male parolees: "The parolees who comprise the caseload of the unit consist mostly of male prisoners, i.e., at least 90 percent being male. In contrast, a majority of the parole officers are female, i.e., 12 out of 19 parole officers in the Bureau are female." (Rodriguez Aff. ¶ 3; see also Welch Aff. ¶ 2.)

Mr. Baker's Version of the Urine Testing

Mr. Baker attached to his complaint a different, undated DOP "Policy and Procedures Manual for Urinalysis Testing." (Dkt. No. 2: Compl. Ex. B.) According to the DOP manual attached to Mr. Baker's complaint, "[i]n a case where the gender of the parole officer is different from that of the releasee, the parole officer will obtain the assistance of a staff member of the same sex as the releasee. . . . The parole officer or a staff member of the same sex as the releasee must be present and witness the releasee urinating into the specimen container." (Compl. Ex. B at A-135, ¶ I.B.4 I.B.7.) As noted above, Senior Parole Officer Rodriguez submitted a different DOP Policy and Procedure statement, which Mr. Rodriguez states is the "present DOP policy"; it is dated April 2001 and states that it supersedes one dated April 1996 (Rodriguez Aff. ¶ 6 Ex. B) — presumably superseding the one that Mr. Baker attached to the complaint. Mr. Baker has acknowledged that the DOP procedure manual he attached to his complaint was superseded by the new policy and procedures manual submitted by Mr. Rodriguez. (Dkt. No. 18:8/13/03 Conf. at 12-13; Dkt. No. 28: Baker Opp. Br. at 4, 17.)

According to Mr. Baker, on September 16, 2002, Ms. Welch escorted him to a bathroom, gave him a sealed specimen cup, and Mr. Baker urinated while Ms. Welch watched him. Mr. Baker asserted in his complaint and at a conference before this Court that Ms. Welch was "two to three feet away" from him, "closely watching" while he was urinating. (Dkt. No. 18: 8/13/03 Conf. Tr. at 6; Dkt. No. 2: Compl. ¶ 15; see also Dkt. No. 28: Baker Opp. Br. at 6.)

In his deposition, however, Mr. Baker emphasized that Ms. Welch was closer to him than two to three feet during the urine testing procedures. He states that Ms. Welch was behind him when he began urinating, but then stepped up to his side: "I go up to the toilet, and then she comes along side of me where the sink is at, where the mirror is at. So that is when I turned and looked at her like what, you are going to watch me do this? . . . [T]here came a point when she stepped up closer to the sink, when I put [the urine] into the cup . . . [S]he stepped up, and she says I got to see what you're doing. . . . [S]he was right here to my left." (Dkt. No. 23: Velez Aff. Ex. A: Baker Dep. at 88, 91-92, 95, 97, 99; see also Baker Dep. at 100; Dkt. No. 28: Baker Opp. Br. at 6 nn. 6, 8) ("Welch came along side of the plaintiff in the bathroom and watched his genitalia as he was urinating." "Welch made a conscious decision to directly observe plaintiffs genitalia while he was urinating.") Mr. Baker testified that he protested and demanded that he be watched by a male parole officer while giving the urine sample, but that Ms. Welch replied: "you don't have nothing I haven't already seen." (Baker Dep. at 100; see also Baker Opp. Br. at 6.) According to Mr. Baker, "[a]t no point, did plaintiff consent or agree to have Welch observe his genitalia while urinating." (Dkt. No. 28: Baker Opp. Br. at 6.)

On October 21, Mr. Baker reported to Ms. Welch's office and was told by Ms. Welch to give a urine sample as required by his conditions of parole, and Ms. Welch escorted him to the bathroom. (Baker Dep. at 117-19;see Dkt. No. 28: Baker Opp. Br. at 7.) Mr. Baker objected, since he "didn't appreciate her watching [him] the first time," and asked why the urine test could not be observed by a male parole officer. (Baker Dep. at 123-25.) Ms. Welch responded that she was his parole officer, and that: " [i]f you don't give me a urine sample and stop complaining, I am going to lock you up." (Baker Dep. at 124-25; see Dkt. No. 28: Baker Opp. Br. at 7.) Mr. Baker described the October 21 urine test procedure as the same as the first time, with Ms. Welch close to him: "watching me put my penis in the tip of the cup . . . When I say watching, she was down in my groin area watching." (Baker Dep. at 122, 130).

Mr. Baker said that Ms. Welch's viewing of his penis made him feel "degraded" and "humiliated" because he "had never had no females up close with [him] like that. . . . She was like the first female that was actually right there watching me urinate." (Baker Dep. at 104-05, 162;see also id. at 107-09.)

Mr. Baker claims that defendants violated his right to "bodily privacy" on these two occasions. (E.g., Baker Dep. at 71.) He concedes that drug testing was a special condition of his parole, but notes that he "never signed, agreed or consented to 'direct observation of his genitalia' during drug testing." (Dkt. No. 28: Baker Opp. Br. at 3-4;see also id. at 6.) Essentially, his claim is that Ms. Welch "was looking at [Mr. Baker's] penis while [he] was giving a specimen," and more generally, that "a male should be watching [him] give a urine sample, and not a female." (Baker Dep. at 71.) Mr. Baker's claim against Mr. Rodriguez is "[f]or failure to supervise Parole Officer Tonice Welch," that is, Mr. Baker "feel[s] that [Mr. Rodriguez] is aware of [Ms. Welch] taking urine samples from male parolees . . . [and Mr. Rodriguez] should know how she does it, her method of standing there watching males urinate into the specimen cup." (Baker Dep. at 70-71;see also id. at 150, 152-53.)

Baker's complaint originally asserted eight claims (Compl. ¶¶ 50-71), but he dropped all but two § 1983 claims: one against Ms. Welch for being a female parole officer conducting a urine test on a male parolee, and the second against Mr. Rodriguez for failure to supervise Ms. Welch with respect to female on male parolee urine testing. (Dkt. No. 18:8/13/03 Conf. Tr. at 28-29; see also Dkt. No. 22: Defs. Br. at 2 n. 1; Dkt. No. 28: Baker Opp. Br. at 6 n. 7 ("The results of the [drug] test is not the issue involved in this case. The manner in which the test was conducted by Welch is the issue before this Court. The question is whether directly observing plaintiffs genitalia was reasonable under the circumstances.").)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN SECTION 1983 CASES ²

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment " shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also,e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986);Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants.See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship. 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See,e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord,e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."Anderson v. Liberty Lobby. Inc., 477 U.S. at 255, 106 S.Ct. at 2513; see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223. The Court draws all inferences in favor of the nonmoving party — here, Baker — only after determining that such inferences are reasonable, considering all the evidence presented. See,e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See,e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby. Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted."Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

"The Court recognizes that it must 'extend extra consideration' to pro se plaintiffs" such as Baker and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. at 535 (citations internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").³ Moreover, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See, e.g., Irby v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001) ("[W]e remind the district courts of this circuit, as well as summary judgment movants, of the necessity that pro se litigants have actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with the requirements of Rule 56. . . . [E]ither the district court or the moving party is to supply the pro se litigant with notice of the requirements of Rule 56. . . . In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic."); McPherson v. Coombe, 174 F.3d at 280-81 ("'[t]he failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.'") (citations omitted).⁴ Defendants here served the appropriate notices on Baker. (Dkt. No. 19: Notice of Mot. for Summ. J.; Dkt. No. 24: 10/15/03 Notice to Pro Se Litigant Opposing Mot. for Summ. J.)⁵

3 See also, e.g., Commer v. American Fed'n of State. County Mun. Employees, 02 Civ. 7930, 2003 WL 21698637 at * 1 (S.D.N.Y. July 17, 2003) ("[T]he Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held to 'less stringent standards than formal pleadings drafted by lawyers. . . .'"); Douglas v. Portuondo, 232 F. Supp.2d 106, 113 (S.D.N.Y. 2002).

4 See also, e.g., Trammell v. Coombe, No. 97-2622, 201 F.3d 432 (table), 1999 WL 1295856 at *2 (2d Cir. Dec. 23, 1999); Vital v. Interfaith Med. Or., 168 F.3d 615, 620-21 (2d Cir. 1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see generally S.D.N.Y. Local Civil Rule 56.2 (requiring service of notice explaining the requirements of Rule 56 on litigant proceeding pro se).

5 The Court notes that while defendants' summary judgment papers included a copy of Mr. Baker's deposition transcript (Dkt. No. 23: Velez Aff. Ex. A: Baker Dep.), defendants' Rule 56.1 statement of allegedly uncontested material facts entirely ignored Mr. Baker's deposition testimony, referring only to Ms. Welch's and Mr. Rodriguez's affidavit testimony. ( E.g., Dkt. No. 19: Defs. 56.1 Stmt. ¶¶ 9-14.) Thus, for example, defendants' Rule 56.1 statement asserted that Ms. "Welch witnessed [Mr. Baker] urinating into the specimen container from a distance of at least 4 feet away with plaintiffs back toward her at all times. At . . . no time did she observe or attempt to observe plaintiffs genitalia. Welch Affidavit, ¶ 7." (Defs. 56.1 Stmt. 19.) This one-sided recitation of facts made defendants' Rule 56.1 statement useless.
The Court expects all counsel to comply fully and honestly with Local Rule 56.1. It is especially distressing when a governmental agency that is a frequent litigant before the Court bends the rules in an apparent effort to obtain an advantage over a pro se litigant. The Court expects submissions from the Attorney General's Office in future cases to fully comply with Local Rule 56.1. (See also fn. 14 below.)

"Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see also, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug 15, 2002) (Peck, M.J.);Smith v. Planas, 975 F. Supp. 303, 305 n. 2 (S.D.N.Y. 1997).

II. THE ELEVENTH AMENDMENT BARS DAMAGE CLAIMS AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES

"'It is black letter law that a suit against a state official in his official capacity seeking damages is barred by the Eleventh Amendment . . .'" Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *1 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.) (quotingJackson v. Johnson, 30 F. Supp.2d 613, 618 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) ( cases cited therein);accord, e.g., Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *5 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.). Indeed, Mr. Baker concedes that "[t]o the extent the complaint seeks damages from defendants in their official capacities, dismissal under the eleventh amendment would be proper. . . ." (Dkt. No. 28: Baker Opp. Br. at 18.) Mr. Baker's damage claims against defendants in their official capacities should be dismissed. III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY A. Legal Standard ⁶

6 For an additional decision authored by this Judge discussing the qualified immunity legal standard in language substantially similar to that in this entire section of this Report and Recommendation, see Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *15-17 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.).

"Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were 'clearly established' at the time."Foe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002); see also, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). Qualified immunity is "'an entitlement not to stand trial or face the other burdens of litigation.'"Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 2156 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 So. Ct. 2806, 2815 (1985)).

As the Second Circuit has explained, government actors are entitled to qualified immunity from liability for civil damages when they perform discretionary functions "if either (1) their conduct 'did not violate clearly established rights of which a reasonable person would have known,' or (2) 'it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.'" Young v. County of Fultoa 160 F.3d 899.903 (2d Cir. 1998): accord,e.g., Poe v. Leonard, 282 F.3d at 132-33;Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001);Johnson v. Newburgh Enlarged Sch. Dist. 239 F.3d 246, 250 (2d Cir. 2001); Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000); Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).⁷ "The availability of the defense depends on whether a reasonable [official] could have believed his action to be lawful, in light of clearly established law and the information [he] possessed." Weyant v. Okst. 101 F.3d 845, 858 (2d Cir. 1996).⁸

7 See also, e.g., Espinal v. Goord, 00 Civ. 2242, 2001 WL 476070 at *11 (S.D.N.Y. May 7, 2001) (Peck, M.J.);Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.) ( cases cited therein);Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *8 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *7 n. 16 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Salahuddin v. Coughlia 999F. Supp. 526, 536-37 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.).

8 See also, e.g., Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987);Martinez v. Simonetti, 202 F.3d at 634; Freeman v. Strack, 2000 WL 1459782 at *7; Gulp v. Koenigsmann, 2000 WL 995495 at *8; Carbonell v. Goord, 2000 WL 760751 at *7.

"In a suit against [a government official] for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence." Saucier v. Katz, 533 U.S. at 200, 121 S.Ct. at 2155; accord, e.g.,Ehrlich v. Town of Glastonbury, 348 F.3d 48, 54-55 (2d Cir. 2003); Foe v. Leonard, 282 F.3d at 133; Smith v. Menifee, 00 Civ. 2521, 2002 WL 461514 at *4 (S.D.N.Y. Mar 26, 2002).

"A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. at 2156 (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793 (1991));accord, e.g., Ehrlich v. Town of Glastonbury, 348 F.3d at 54-55; Foe v. Leonard, 282 F.3d at 132; Johnson v. Newburgh Enlarged Sch. Dist. 239 F.3d 246.251 (2d Cir. 2001): Smithy v. Menifee, 2002 WL 461514 at *4. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Saucier v. Katz, 533 U.S. at 201, 121 S.Ct. at 2156: accord, e.g., Ehrlich v. Town of Glastonbury, 348 F.3d at 54; Poe v. Leonard, 282 F.3d at 132; Smith v. Menifee, 2002 WL 461514 at *4.

Prior to the Supreme Court's decision in Saucier, many courts, including the Second Circuit, "did not reach the issue of whether a violation had occurred on the facts alleged by the plaintiff, instead dismissing the case on immunity grounds because the right invoked was not clearly established." Ehrlich v. Town of Glastonbury, 348 F.3d at 55. Saucier, however, "speaks in mandatory terms — lower courts must determine the violation before engaging in a qualified immunity analysis." Ehrlich v. Town of Glastonbury, 348 F.3d at 55. The rationale for the mandatory two-step approach is that "if courts consistently avoided the constitutional issues by simply dismissing suits on the basis of immunity, 'standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals.'" Id. Thus, except in "appropriate, discrete cases" — such as where the constitutional right could be litigated in a related criminal proceeding or where uncertain state law is involved — the two-step approach is not just favored but obligatory.Id. at 57. While recognizing "that the Saucier sequence requires the lower courts to rule on the validity of rights, in the first instance, in dicta," some of the problems in that "can be mitigated in part by a firm recognition that the lower court's statement is only dicta," and "Saucier in no way requires lower federal courts to give full stare decisis effect to their previous dicta. . . . In other words, the Saucier-mandated sequence tells the state actors that qualified immunity is no longer available for the acts in question, but, by its very nature as dicta, it does not affirmatively establish the right at stake. A second decision is needed to do so." Ehrlich v. Town of Glastonbury, 348 F.3d at 56 n. 11. In short, despite the dangers inherent in dicta,⁹ the Court is required to determine whether a constitutional right exists before determining whether the right is clearly established.

9 The Second Circuit in Ehrlich recognized the dangers inherent in deciding constitutional rights in dicta:

Delimiting the scope and nature of constitutional rights in dicta entails obvious concerns. A court that knows that it will rule against the plaintiff at the second stage of the inquiry may fail to be as careful in its analysis of the first question as it would if the answer to that question was determinative. By the same token defendants who are confident of prevailing on the "clearly-established" prong will not always present the court with the most sophisticated or carefully reasoned explanations of why they believe the claim to be unwarranted on its merits.

Ehrlich v. Town of Glastonbury, 348 F.3d at 56.

The "right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established." Wilson v. Layne 526 U.S. 603, 615, 119 S.Ct. 1692, 1700 (1999); accord, e.g., Smith v. Menifee, 2002 WL 461514 at *4-5. The inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier v. Katz, 533 U.S. at 201.121 S.Ct. at 2156: accord, e.g., Poe v. Leonard, 282 F.3d at 135: Smith v. Menifee, 2002 WL 461514 at *4-5. "'[T]he right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'"Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. at 2156 (quotingAnderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987)); see also, e.g., Wilson v. Wayne, 526 U.S. at 614-15, 119 S.Ct. at 1699; Smith v. Menifee, 2002 WL 461514 at *5. Therefore, to determine whether a right is clearly established, the Court must consider "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. at 2156; see also, e.g., Anderson v. Leighton, 487 U.S. at 640, 107 S.Ct. at 3029; Young v. County of Fultoa 160 F.3d at 903 ("The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in a defendant's position should know about the constitutionality of the conduct.");Smith v. Menifee, 2002 WL 461514 at *5.

"In determining whether a particular legal principle was 'clearly established' for purposes of qualified immunity, [the Second Circuit] has considered three factors: 'whether the right was defined with reasonable specificity; whether the decisional law of the Supreme Court and the applicable circuit court supports its existence; and whether, under preexisting law, a defendant official would have reasonably understood that his acts were unlawful.'" Powell v. Schriver, 175 F.3d 107, 113 (2d Cir. 1999) (internal quotes omitted); accord,e.g., Cerrone v. Brown, 246 F.3d at 199:Mollica v. Volker, 229 F.3d 366, 371 (2d Cir. 2000);Powell v. Schriver, 175 F.3d 107, 113 (2d Cir. 1999);Cahill v. O'Donnell, 75 F. Supp.2d 264, 277 (S.D.N.Y. Dec. 7, 1999) (Parker, D.J.).

Moreover, where the qualified immunity issue is raised in connection with a supervisor's liability, "both the subordinate's and the supervisor's actions (or lack thereof) are relevant." Poe v. Leonard, 282 F.3d at 134. A plaintiff "must show that both laws were clearly established to lay the predicate for demonstrating that [the supervisor] lacked qualified immunity: the law violated by [the subordinate official] and the supervisory liability doctrine under which [plaintiff] wishes to hold [the supervisor] liable." Poe v. Leonard, 282 F.3d at 134.

Finally, "[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to a factual situation the officer confronts. . . . If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Saucier v. Katz, 533 U.S. at 205, 121 So. Ct. at 2158; accord, e.g., Poe v. Leonard, 282 F.3d at 133. "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. at 2156-57. "[E]ven if the plaintiffs federal rights were clearly established at the time of the alleged violation, the defendants may nevertheless enjoy qualified immunity if it was objectively reasonable for them to believe that their actions did not violate those rights."Lennon v. Miller, 66 F.3d at 423; see also,e.g., Robinson v. Via, 821 F.2d 913, 921 (2d Cir. 1987). "Thus, if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendant['s] conduct under the circumstances,' qualified immunity applies." Poe v. Leonard, 282 F.3d at 133 (quotingLennon v. Miller, 66 F.3d at 421). "'A defendant is therefore entitled to summary judgment on qualified immunity grounds if a jury, viewing all facts in the light most favorable to the plaintiff, could conclude that officers of reasonable competence could disagree on the legality of the defendant's actions.'" Poe v. Leonard, 282 F.3d at 146 (quoting Cerrone v. Brown, 246 F.3d at 202; see also, e.g., Tierney v. Davidson, 133 F.3d at 196; Robinson v. Via, 821 F.2d at 921. B. Defendants are Entitled to Summary Judgment on Qualified Immunity Grounds Despite the Factual Disputes Surrounding the Conduct of the Urine Tests

The first question is whether Baker has alleged a constitutional violation. Baker alleges that he was denied his constitutional right to privacy when: (1) his urine tests were administered by a female rather than a male parole officer; (2) Ms. Welch stood too closely to him while he was giving his urine samples; and (3) Ms. Welch's supervising parole officer, Mr. Rodriguez, failed to properly supervise her conducting of urine tests. (Dkt. No. 2: Compl.; see also pages 5-8 above.) The crux of Mr. Baker's complaint is that Ms. Welch and Mr. Rodriguez violated his rights by forcing him to undergo a urine test while being closely observed by a female parole officer.

1. Even If Defendants Had Violated The Division of Parole Policy Manual, They Would Not Forfeit the Qualified Immunity Defense

As a preliminary matter, before getting to Constitutional issues, Mr. Baker's complaint alleged that State Division of Parole policies required that urine tests be conducted by a parole officer of the same sex as the parolee. (See page 5 above; Compl. Ex. B at A-135 ¶ I.B.4: "In a case where the gender of the parole officer is different from that of the releasee, the parole officer will obtain the assistance of a staff member of the same sex as of the releasee.") According to defendants, the present DOP policy, in effect since April 2001, does not prohibit opposite gender urine testing. (Dkt. No. 20: Rodriguez Aff. Ex. A;see page 2 above.) Mr. Baker conceded that the DOP policy statement he attached to his complaint was superseded before his urine testing by Ms. Welch. (See pages 5-6 above.) Even if he had not conceded that the earlier policy manual was superseded, any factual dispute as to which Division of Parole policy manual applied is not relevant to the qualified immunity analysis: Violation of a state regulation does not forfeit a state official's defense of qualified immunity.See, e.g., Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019 (1984) ("Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some [state] statutory or administrative provision.");Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998) ("The fact that DSS employees violated New York law when they denied plaintiff visitation without a prior hearing does not necessarily give rise to a federal civil rights claim. . . . The procedure mandated by state family law is not the benchmark for evaluating whether or not there has been a federal constitutional violation. '[A] violation of state law neither gives [plaintiff] a § 1983 claim nor deprives defendants of the defense of qualified immunity to a proper § 1983 claim.' Without more, the fact that defendants violated New York procedural requirements does not support liability under § 1983.") (quoting Robinson v. Via, 821 F.2d 913, 922 (2d Cir. 1987)); Russell v. Selsky, 35 F.3d 55, 60 (2d. Cir. 1994); Madera v. Goord, 103 F. Supp.2d 536, 541 (N.D.N.Y. 2000) ("[T]he violation of state regulations alone does not rise to the level of a constitutional violation. In any event, the defendant would be entitled to qualified immunity based upon the lack of an established constitutional right."). 2. The Constitutional Right to Bodily Privacy ¹⁰

10 The cases cited in this section recognize a right to some degree of bodily privacy predominantly under the Fourth Amendment (restricting search and seizure) and/or the Eighth Amendment (cruel and unusual punishment). (See cases cited in this section.) See also, e.g., Johnson v. Phelan, 69 F.3d 144 (7th Cir.) (discussed at pages 38-41 below), cert. denied, 519 U.S. 1006, 117 S.Ct. 506 (1996); Kent v. Johnson, 821 F.2d 1220, 1226 (6th Cir. 1987) ("Neither the Supreme Court nor the Sixth Circuit has ever expressly recognized that the fourth amendment 'right to privacy encompasses the right to shield one's naked body from view by members of the opposite sex. . . . Perhaps it is merely an abundance of common experience that leads inexorably to the conclusion that there must be a fundamental constitutional right to be free from forced exposure of one's person to strangers of the opposite sex when not reasonably necessary for some legitimate, overriding reason, for the obverse would be repugnant to notions of human decency and personal integrity. Of course, as with all observations of law that are grounded on some 'universal' or 'moral' truth, this premise is subject to debate by reasonable minds."). The Court here need not decide which Amendment is the better source of the right.
The Court also notes that its consideration of opposite sex (and same sex) observation is premised on heterosexuals; the Court need not consider in this case a situation where the parolee or officer (or both) might be homosexual.

The Court therefore turns to the first steps of a qualified immunity analysis, whether there is a constitutional right to privacy as to urine testing, and whether it was clearly established at the time Ms. Welch conducted the two urine tests on Mr. Baker in September-October 2002.

"To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the 'absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.'" Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3169 (1987). Although no longer physically in prison, the parolee is constructively still a prisoner. E.g.,United States v. Thomas, 729 F.2d 120, 123 (2d Cir.) ("The status of parolees in our legal system is unique; they are 'neither physically imprisoned nor free to move at will.'"), cert. denied, 469 U.S. 846, 105 S.Ct. 158 (1984) (quoting United States v. Polito, 583 F.2d 48, 54 (2d Cir. 1978) ("Parole is not freedom. A parolee is a convicted criminal who has been sentenced to a term of imprisonment and who has been allowed to serve a portion of that term outside prison walls.")); United States ex rel. Randazzo v. Follette, 282 F. Supp. 10.14-15 (S.D.N.Y. 1968)aff'd, 418 F.2d 1319 (2d Cir. 1969), cert. denied, 402 U.S. 984, 91 S.Ct. 1672 (1971). It is beyond question that parolees like Mr. Baker constitutionally may be subject to urine testing for drugs (or alcohol). See, e.g., N.Y. Penal Law § 70.40(1)(b); N.Y. Exec. Law § 259-c(2); N.Y. Comp. Codes R. Regs. tit. 9, § 8003.3; see also, e.g., Doe v. Simon, 221 F.3d 137, 139 (2d Cir. 2000); Pena v. Travis, 01 Civ. 8534, 2002 WL 31886175 at *13 (S.D.N.Y. Dec. 27, 2002) (parolee "does not have a protected liberty interest in being free from special conditions" of parole, including drug testing);McCrohan v. Armould, No. C-94-0006, 1995 WL 691878 at *3-4 (N.D. Cal. Nov. 16, 1995). Indeed, Mr. Baker no longer challenges the constitutionality of his drug testing, but rather challenges the way the test was conducted, i.e., by a female parole officer who he alleges closely observed his genitalia. (See pages 5-8 above.)

Case law as to whether or nor there exists a constitutional prohibition on visual observation by opposite sex officials in a parole context is minimal. There are, however, a few federal cases that shed light on the issue.

In Tyler v. Barton, 901 F.2d 689 (8th Cir. 1990), a parolee, Mr. Tyler, brought suit claiming that the (male) parole officer's observation of him while he gave a urine sample violated his constitutional rights. Id. at 690. The Eighth Circuit held that plaintiff "established no clear constitutional right to be free from visual inspection during urine testing for possible drugs in his system. Persons convicted of crimes, including prisoners, probationers and parolees, while retaining some fourth amendment rights, are subject to greater restrictions on their freedom than ordinary individuals." Id. at 691.¹¹ The Eighth Circuit noted that "visual monitoring of urinalysis subjects in the process of giving a urine sample is not an unusual procedure," and is "necessary to ensure a valid, uncontaminated and undiluted sample." Id. Tyler, obviously, involved any observation of a parolee while giving a urine sample. Because the parole officer and parolee in Tyler were both male, however, it did not address opposite sex observation of the urine testing.¹²

11 Although the record in Tyler showed that the officers complied with state procedures, the Eighth Circuit held that" [a]t a minimum, a legitimate question may exist whether [plaintiff] possessed a right to be free from visual observation while furnishing a urine sample. Thus, we conclude that [defendants] did not violate any clearly established constitutional right. Accordingly, the doctrine of qualified immunity applies" to defendants. Id.

12 See also, e.g., Lumsden v. Ramsey County Community Corr. Dep't, 00 Civ. 2223, 2003 WL 221806 at *7-8 (D. Minn. Jan. 28, 2003) (defendants entitled to qualified immunity in § 1983 action based on visual monitoring by male probation officer of male plaintiff while providing a urine sample. "While this method of urine collection is not encouraged, the right of a probationer to be free of direct observation of urine sampling is not so clearly defined as to necessitate that [defendant] would have known that in-person collection of the specimen violated Plaintiffs Fourth Amendment rights. . . . In consideration of the express probation condition mandating Plaintiff subject himself to random testing at the behest of his probation officer and the cases allowing observation of the provision of such samples, even outside the criminal justice context, Plaintiffs privacy right is not so clearly established as to defeat qualified immunity.").

In Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992),cert. denied, 510 U.S. 931, 114 S.Ct. 342 (1993), in contrast, the Ninth Circuit held that a male parole officer violated the constitutional rights of a female parolee (and was not entitled to qualified immunity) when he observed her during a urine drug test. The facts in Sepulveda are similar to this case, except that the parolee there was female and the officer male. The male parole officer walked into the bathroom stall where the female parolee was urinating; she protested and the male parole officer "laughed and told her that she 'did not have anything he had not seen before.'" Sepulveda v. Ramirez, 967 F.2d at 1415.¹³ The Ninth Circuit found the right to bodily privacy clearly established in that Circuit since 1963. Id. The Ninth Circuit contrasted the parole officer's close viewing of the parolee with more incidental viewing of inmates that had previously been upheld in the prison context — female correction officers viewing male inmates disrobing, showering and using bathroom facilities, where "the officers' view of the prisoners was generally obscured and from a distance." Id. at 1416. The male parole officer's view of the female parolee "within the toilet stall was neither obscured nor distant. This experience was far more degrading to [the female parolee] than the situation faced by the inmates" in the prior shower case. Id. The Ninth Circuit concluded that "no reasonable officer could believe that the actions allegedly taken by Officer Ludwig [the male parole officer] were lawful. Officer Ludwig's behavior as alleged, runs contrary to common sense, decency, and California Department of Corrections regulations." Id. ¹⁴

13 The defendants' reply brief notes that" [t] his response by the parole officer is 'coincidentally' the same response that plaintiff Baker alleges was made by Welch. . . ." (Defs.1 Reply Br. at 3 n. 2.) If defendants' use of quotations around the word "coincidentally" is intended to suggest that Mr. Baker made his deposition testimony up as a result of reading Sepulveda, there is no evidence to support such a suggestion, and in any event, such a credibility determination would have no place in a summary judgment decision.

14 Sepulveda was not cited in defendants' opening brief; it was first cited in Baker's opposition brief. (Dkt. No. 28: Baker Opp. Br. at 15.) It appears that either the pro se is a better researcher than the Assistant Attorney General or that the latter was not being candid with the Court. (See also fn.5 above.)

The dissenting judge in Sepulveda found that any such right to privacy was not "clearly established" at that time:

Any constitutional right that Sepulveda may have had not to be observed by a parole officer of the opposite sex while producing a urine sample was not, in my view, 'clearly established' at the time of the incident. . . .

. . . .

Assuming that a generalized right to bodily privacy is 'clearly established' under decisional law, whether such right existed under the particular circumstances presented here is most uncertain under our case law. Prior to this case, there appears to be no decisions in our circuit recognizing parolees' privacy rights in these circumstances, let alone any cases attempting to strike a balance between the privacy interests of parolees and the interests of the state in accurate drug testing of its parolees.

Sepulveda v. Ramirez, 967 F.2d at 1417-18 (O'Scannlain, C.J., dissenting).¹⁵

15 In Hansen v. California, 920 F. Supp. 1480, 1495-99 (N.D. Cal. 1996), the Court examined whether the direct observation of the female correctional officer's urination by a male officer during her drug tests violated her rights under the Fourth Amendment or the Due Process Clause. While the Court indicated that such a right might be clearly established in the future, it was not at that point in time and defendants therefore were entitled to qualified immunity.Id.

The Ninth Circuit's Sepulveda decision is not dispositive here, however, for two reasons: First, it is not from the Second Circuit and appears to be the only Circuit to have reached this conclusion in the parole context (and over a dissent at that). Second, the Ninth Circuit's decision appears to have been influenced by California regulations that required individual searches (which the Court held included drug tests) to be done by a parole officer of the same sex as the parolee.Sepulveda v. Ramirez, 967 F.2d at 1416. Here, in contrast, New York had eliminated its similar policy before Mr. Baker's 2002 urine tests. (See pages 5-6 above.)¹⁶ (As will be seen, after a review of analogous prisoner cases, this Court in fact reaches a conclusion similar toSepulveda.)

16 The defendants claim that Sepulveda "can be distinguished because there is authority that women experience unwanted intimate touching by men differently from when subject to comparable touching by women. Case law suggests that in cross gender situations female inmates might have a stronger privacy interest than male inmates." (Defs.' Reply Br. at 3-4.) There is no factual evidence in this record to back-up such a claim. The cases discussed herein seem somewhat more inclined to find a violation where females are viewed by male authorities than the other way around, but this Court cannot say that there is any clear "trend" along those lines. Moreover, the Court can find nolegal rationale for such a distinction, and defendants do not advance any. To the extent there is more protection for females than males from opposite sex viewing, it would appear to be a result of judicial paternalism or gender stereotyping.

Because there is a paucity of parolee or probationer cases that concern constitutional bodily privacy, the Court looks to analogous prisoner cases. These cases demonstrate that there are strong policy reasons — including the protections of Title VII against employment discrimination based on gender and the needs of prison security — against mandating the use of only same-sex correctional officers for monitoring prisoners. For example, in Toth v. Allegany Sheriffs Dep't. 95 Civ. 7858, 100 F.3d 944 (table), 1996 WL 80677 at *1 (2d Cir. Feb. 20, 1996), female guards sued the Sheriff under Title VII and § 1983 for prohibiting them from manning posts within the jail's male housing unit unless no male correction officers were available.Id. at *1. The district court denied the Sheriffs summary judgment motion, finding no qualified immunity, holding: that at the time the Sheriff initiated the policy, it "was clearly established that female guards could not be prohibited from staffing any posts within male housing units solely on the basis of their sex and that [the Sheriff] could not have reasonably understood that under existing law his actions were lawful." Id. The Second Circuit affirmed on different grounds. Id.

Cases in other Circuits have held that guards must be allowed employment in prisons housing inmates of the opposite sex, but that a balance must be struck between equal employment rights and inmates' privacy interests. See, e.g., Johnson v. Phelan, 69 F.3d 144, 146-47 (7th Cir.) (Easterbrook, C.J.) ("Unless female guards are shuffled off to back office jobs, itself problematic under Title VII, they are bound to see the male prisoners in states of undress. Frequently. Deliberately. Otherwise they are not doing their jobs . . . If only men can monitor showers, then female guards are less useful to the prison . . .") (discussed further at pages 38-41 below),cert. denied, 519 U.S. 1006, 117 S.Ct. 506(1996); Canedy v. Boardman, 16 F.3d 183, 185-87 (7th Cir. 1994) ("The right to privacy is now firmly ensconced among the individual liberties protected by our Constitution . . . [W]hile all forced observations or inspections of the naked body implicate a privacy concern, it is generally considered a greater invasion to have one's naked body viewed by a member of the opposite sex . . . The judicial inquiry, then is to 'balanc[e] the significant and legitimate security interests of the institution against the privacy interests of the inmates.' . . . [A] state's interest in providing equal employment opportunity should likewise be weighed against the invasion of a prisoner's privacy interest . . . [O]ccasional or inadvertent sighting by female prison employees of inmates in their cells or open showers do not violate the inmates' right to privacy.");Forts v. Ward, 621 F.2d 1210, 1211, 1216, 1217 (2d Cir. 1980) ("The modern sensitivity to the significance of gender in American life and law has made it inevitable that cases will arise where gender-based legal contentions conflict." "[T]he remedy adopted to protect the privacy of the inmates in their cells during nighttime hours has placed privacy and employment rights in direct conflict." "The privacy interest entitled to protection concerns the involuntary viewing of private parts of the body by members of the opposite sex."); see also cases cited below.

To assert that female parole officers such as Ms. Welch should be limited in their employment with regards to male parolees would be discriminatory to female parole officers and against equal employment principles. Just as the prison cases have demonstrated that a balance needs to be struck between legitimate penological interests (including safety and equal employment) and the inmates' privacy interests, a similar balancing approach needs to be undertaken in the parole context. Accordingly, there is no basis for preventing a female parole officer from supervising a male parolee. The issue that remains is what limits, if any, there are (or should be) on the way a parole officer conducts urine testing on an opposite sex parolee. The prison cases shed further light on how this balance should be struck.

The prison cases are not entirely consistent; some cases draw a distinction between "incidental" and more "regular" viewing of naked inmates of the opposite sex. For example, in Rogers v. Clark, 94-CV-0444, 1996 WL 328218 (W.D.N.Y. June 11, 1996), the plaintiff, a male prisoner, brought suit alleging that a "female correctional officer glanced at him as he completed taking a shower," violating his constitutional right to privacy. Id. at * 1. The Court found no basis for a constitutional claim: "Bashfulness is not a protectable fundamental right or liberty interest. Further, to the extent that a glance at the unclothed body of a prisoner from a member of the opposite sex might be considered a search worthy of Fourth Amendment scrutiny, the incident was utterly harmless. The plaintiff has not provided a scintilla of evidence that it was intentional, continuous or lengthy. As such the facts presented do not rise to a constitutionally cognizable injury. . . . Such matters are better left to prison administrators or state tort law. In short, this Court will decline the opportunity to meddle in the administration of the Niagara County jail." Id.

The cases from other Circuits have upheld "incidental" viewing of naked inmates by opposite-sex correctional officers, based on a showing that the observation was conducted for a legitimate penological purpose (including equal employment and/or safety and security). See,e.g., Sinclair v. Stadler, No. 03-30456, 78 Fed. Appx. 987, 989, 2003 WL 22436063 at *1 (5th Cir. Oct. 28, 2003) ("[T]he state's policy of using female officers to supervise the living areas of [plaintiff's] prison unit is reasonably related to legitimate penological objections, including flexibility in security personnel staffing and equal employment opportunity. Given the evidence presented, [plaintiffs] right to privacy, which is at best minimal, must yield to the state's legitimate interest.") (citations omitted); Calhoun v. Detella, 319 F.3d 936, 939 (7th Cir. 2003) ("There is no question that strip searches may be unpleasant, humiliating, and embarrassing to prisoners, but not every psychological discomfort a prisoner endures amounts to a constitutional violation. For example, the strip search of a male prisoner in front of female officers, if conducted for a legitimate penological purpose, would fail to rise to the level of an Eighth Amendment violation . . . Accordingly, to state an Eighth Amendment claim [plaintiff] must show that the strip search in question was not merely a legitimate search conducted in the presence of female correctional officers, but instead a search conducted in a harassing manner intended to humiliate and inflict psychological pain."); Hill v. McKinley, 311 F.3d 899, 903-04 (8th Cir. 2002) ("[W]e hold that use of male guards in an otherwise justified transfer of an unruly and naked female prisoner is not a violation of the Fourth Amendment." But then allowing naked female prisoner to remain unclothed in the presence of male guards for long time period violates privacy rights, but qualified immunity upheld because right not clearly established at time of incident); Sattler v. Foster, No. 01-35733, 37 Fed. Appx. 311, 312, 2002 WL 1301854 at *1 (9th Cir. June 10, 2002) ("Occasional viewing of male prisoners by female correctional officers does not violate the Fourth Amendment right to privacy or the Eighth Amendment prohibition against cruel and unusual punishment."); Oliver v. Scott, 276 F.3d 736, 744-46 nn. 17-18 (5th Cir. 2002) ("We would have to expand the Supreme Court's fundamental implied rights jurisprudence to create a right for prisoners not to have members of the opposite sex view them naked." In employing a balancing test, finds that security concerns justify constant visual monitoring of all prison areas, including cross-sex surveillance in showers.) ( cases cited therein); Robins v. Centmela State Prison, No. 00-55227, 19 Fed. Appx. 549, 550-51, 2001 WL 1108916 at *1 (9th Cir. Sept. 19, 2001) ("It is true that this court has held that [professional and respectful] searches of male prisoners conducted by female correctional officers do not violate the Fourth Amendment.");Rice v. King County, No. 99-35257, 243 F.3d 549 (table), 2000 WL 1716272 at *3 (9th Cir. Nov. 15, 2000) ("In general, cross-gender pat-down searches of male inmates by female prison guards are constitutionally permissible."); Easley v. Pinnell, No. 98-16536, 182 F.3d 924 (table), 1999 WL 311390 at *1 (9th Cir. May 10, 1999) ("[V]isual anal cavity searches [of male prisoner] conducted within female prison officials' view does not amount to cruel and unusual punishment."); Fain v. Gomez, No. 97-16226, 145 F.3d 1337 (table), 1998 WL 255311 at *1 (9th Cir. May 20, 1998) ("[A] visual strip search of male prisoners by female guards, without more, does not violate a privacy right."); McGill v. Czerniak, No. 95-15318, 83 F.3d 427 (table), 1996 WL 207150 at * 1 (9th Cir. Apr. 3, 1996) (Summary judgment affirmed for defendant when male prisoner claimed that "his First, Fourth, Eighth, and Fourteenth Amendment rights were violated when prison officials conducted strip searches in view of female guards."):Johnson v. Phelan, 69 F.3d at 150-51 ("The fourth amendment does not protect privacy interests within prisons. Moving to other amendments does not change the outcome. Cross-sex monitoring is not a senseless imposition . . . It cannot be called 'inhumane' and therefore does not fall below the floor set by the objective component of the eighth amendment.") (discussed further at pages 38-41 below); Koch v. Lewis, No. 93-17250, 62 F.3d 424 (table), 1995 WL 453247 at *8 (9th Cir. June 16, 1995) (Strip and body cavity" searches are not rendered unreasonable by virtue of the fact that they are occasionally visible to female guards, civilians or other prisoners.") (citing Grummett v. Rushen, 779 F.2d 491, 495 (9th Cir. 1985)); Kuntz v. Wilson, No. 94-35221, 33 F.3d 59 (table), 1994 WL 417424 at *1 (9th Cir. Aug. 19, 1994) ("Prisoners have only a very limited right of bodily privacy from guards of the opposite sex. . . . The assignment of female prison guards to positions requiring only infrequent and casual observation of naked male prisoners does not violate the prisoners' right to privacy.");Thomas v. Shields, No. 92-6678, 981 F.2d 1252 (table), 1992 WL 369506 at *1 (4th Cir. Sept. 15, 1992) (Male plaintiffs "right to privacy was not violated by the occasional, inadvertent encounter with female guards" who observed him in shower and on toilet.); Letcher v. Turner, 968 F.2d 508, 510 (5th Cir. 1992) ("[T]his Court [has] held that no constitutional violation occurs when naked male inmates are viewed by female guards if the presence of female guards is required to protect a legitimate government interest such as maintaining security at a correctional facility. Given these principles, which we endorse, there is no basis for [male plaintiffs] claim of a constitutional violation due to the presence of female guards during the strip search."); Timm v. Gunter, 917 F.2d 1093, 1099-1100, 1102 (8th Cir. 1990) ("[W]hen addressing an inmate's claim of alleged constitutional violations, we must consider whether the constrictions that prison administrators have placed on the inmate's rights are justified by legitimate institutional concerns. . . . The judgment exercised by prison administrators in striking a balance between the rights of prisoners and the demands of institutional security is to be given great deference." Allowing pat searches performed by female guards on male inmates "on the same basis as same-sex pat searches is a reasonable regulation . . . and thus is not a constitutional violation." Similarly, "opposite-sex surveillance of male inmates, performed on the same basis as same-sex surveillance, is not 'unreasonable' . . . Whatever minimal intrusions on an inmate's privacy may result from such surveillance, whether the inmate is using the bathroom, showering, or sleeping in the nude, are outweighed by institutional concerns for safety and equal employment opportunities."),cert. denied, 501 U.S. 1209, 111 S.Ct. 2807 (1991); Munir v. Scott, 89 Civ. 1283, 907 F.2d 151 (table), 1990 WL 92680 at *4-6 (6th Cir. July 2, 1990) ("[T]he realities of prison life may require some restriction on the exercise of [constitutional] rights. . . . [T]here was no genuine issue of material fact that the use of transparent shower curtains was reasonably related to legitimate penological interests" of security and inmate safety, even if male and female guards see inmates.);Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) ("Our circuit's law respects an incarcerated prisoner's right to bodily privacy, but has found that assigned positions of female guards that require only infrequent and casual observation, or observation at a distance, and that are reasonably related to prison needs are not so degrading as to warrant court interference."); Smith v. Fairman, 678 F.2d 52, 54-55 (7th Cir. 1982) (In the absence of dangerous conditions, "a state may not legally refuse to hire women as guards in a male prison. . . . If a state is required to hire women as guards in a male prison, it reasonably seems to follow that it must be allowed to utilize female guards to the fullest extent possible. This does not mean, however, that inmates are without constitutional protection against invasions of their privacy by members of the opposite sex. . . . We think that by instructing female guards to exclude the genital area on male inmates in conducting a frisk, defendants have afforded plaintiff whatever privacy right he may be entitled to in this context. While plaintiff evidently finds even this limited touching by a person of the opposite sex to be offensive, we do not read the Constitution so broadly."), cert. denied, 461 U.S. 907, 103 S.Ct. 1879 (1983).¹⁷

17 See also, e.g., Miles v. Bell, 621 F. Supp. 51, 67 (D. Conn. 1985) ("[T]he Court finds that the unannounced presence of female guards does not amount to a violation of the constitution. It is well settled that there is constitutional right to privacy. . . . The constitutional right to privacy maybe restricted to the extent necessary to further the penal institution's legitimate goals or policies, including the need to maintain security, . . . but the right to privacy does not 'vanish altogether.'" No constitutional violation where female guards only "occasionally viewed male inmates undressed or using the shower and toilet facilities.") (citations omitted).

In contrast, a smaller number of cases have held that a prisoner's privacy rights are violated by frequent and close, as opposed to occasional and indirect, viewing of a naked prisoner by a guard of the opposite sex. For example, in Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), a male inmate alleged that two female prison guards strip-searched him while ten male corrections officers were nearby who could have done the search. Id. at 184. He also alleged that female officers "regularly observe male inmates in a variety of settings typically considered private, including while they dress, shower, defecate and sleep in various states of undress." Id. The district court dismissed the prisoner's § 1983 complaint pursuant to Fed.R.Civ.P. 12(b)(6). See Canedy v. Boardman, 16 F.3d at 184. The Seventh Circuit reversed, reinstating the action. Id. at 185. The Seventh Circuit's decision, discussing the competing interests and policies, is worth quoting at length:

The right to privacy is now firmly ensconced among the individual liberties protected by our Constitution. Moreover, "[o]ne of the clearest forms of degradation in Western Society is to strip a person of his clothes. The right to be free from strip searches and degrading body inspections is thus basic to the concept of privacy." "It is settled now . . . that the Constitution places limits on a State's right to interfere with a person's . . . bodily integrity." Further, as the district court noted, while all forced observations or inspections of the naked body implicate a privacy concern, it is generally considered a greater invasion to have one's naked body viewed by a member of the opposite sex,

Some diminution of privacy is of course to be expected in prison. . . .

Thus, this court's precedents have long recognized that, while "the justifiable reasons for invading an inmate's privacy are both obvious and easily established," the "surrender of privacy is not total and that some residuum meriting [constitutional protection] survives the transfer into custody." . . . The judicial inquiry, then is to "balanc[e] the significant and legitimate security interests of the institution against the privacy interests of the inmates."

Prison officials have an obvious interest in security. But that is not the only legitimate interest that might justify restricting inmates' privacy rights. In Smith v. Fairman, 678 F.2d (7th Cir. 1982) (per curiam), this court, like other courts of appeals before and since, concluded that a state's interest in providing equal employment opportunity for prison guards should likewise be weighed against the invasion of a prisoner's privacy interest.

Like the plaintiff in Smith, Canedy's objection "is not to being searched, but rather to being searched by a member of the opposite sex." Id. at 54. As noted, Canedy also objects to other prison practices, but the nature of his objection is the same: his privacy interest is invaded because female guards regularly see his naked body. As we noted in Smith, except for unusual circumstances . . ., a state "may not refuse to hire women as guards in a male prison." Smith, 678 F.2d at 54.

That being the case, it follows that prisons must be allowed to "utilize female guards to the fullest extent possible." Smith, 678 F.2d at 54. But that does not mean "that inmates are without constitutional protection against invasion of their privacy by members of the opposite sex." Id. Thus, we observed in Smith that in Forts v. Ward, 471 F. Supp. 1095 (S.D.N.Y. 1979), vacated in part, 621 F.2d 1210 (2d Cir. 1980), the court "ordered that adjustments be made either in scheduling or in the physical structure of the facilities to protect the women inmates from male surveillance while they were dressing or undressing, showering, using the toilet facilities, or sleeping in the housing units." Smith, 678 F.2d at 54-55.

. . . .

Almost every federal court that has addressed this issue has come to the conclusion that the Constitution demands such an accommodation, and that where these competing interests cannot be reconciled, a state's interest in providing equal employment opportunity for female guards needs to be weighed against the privacy rights of prisoners. The cases therefore hold that sex is not a bona fide occupational qualification preventing women from working in all-male prisons, and that pat-down searches and occasional or inadvertent sighting by female prison employees of inmates in their cells or open showers do not violate the inmates' right to privacy. But that right is violated where this observation is more intrusive (like a strip search, in the absence of an emergency) or a regular occurrence, [Citing cases.]

The defendants point out that two district courts have concluded that observation alone of male inmates by female guards does not violate a constitutionally protected privacy interest. These two district court decisions are the exceptions that prove the rule. For the overwhelming majority of the cases have declined to fashion such categorical rules, but rather have required that reasonable accommodations be made, and that the respective interests be balanced.

Canedy, here, is asking only for such an accommodation: that shower curtains be installed, that prison officials allow cell windows to be covered briefly when an inmate undresses or uses the toilet, that sleepwear be provided and that female guards strip search male inmates only in emergencies. We need not now determine which if any of these accommodations of Canedy s privacy rights are required by the Constitution. . . . The suit should go forward as long as "relief is possible under any set of facts that could be consistent with the allegations." Whether Canedy is entitled to relief turns on whether the facts he alleges (and implies) turn out to be true.

. . . .

[W]here it is reasonable — taking account of a state's interests in prison security and in providing equal employment opportunity for female guards — to respect an inmate's constitutional privacy interests doing so is not just a palliative to be doled out at the state's indulgence. It is a constitutional mandate.

Canedy v. Boardman, 16 F.3d at 185-88 (citations fns. omitted, emphasis added).

Similarly in Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987), the Court reversed the district court's dismissal of the male inmate's § 1983 claim, since "construing plaintiffs complaint liberally, he alleges that female prison guards have allowed themselves unrestricted views of his naked body in the shower, at close range and for extended periods of time, to retaliate against, punish and harass him for asserting his right to privacy." Id. at 1227-28 (emphasis added); see, e.g., Haves v. Marriot, 70 F.3d 1144, 1146-47 (10th Cir. 1996) ("Although we have stated that the frequency with which prison guards watch inmates of the opposite sex undressing, using toilet facilities, and showering is an important factor in assessing the constitutionality of prison practices, . . . we have also concluded that a prisoner's right to privacy maybe violated by a simple search." A state court's dismissal of complaint reversed since male inmate alleged "that he was subjected to a body cavity search in the presence of over 100 people, including female secretaries and case managers . . ."); Lee v. Downs, 641 F.2d 1117, 1118-20 (4th Cir. 1981) (upholding jury verdict for plaintiff where female nurse removed undergarments of suicidal female prisoner in presence of male guards, where plaintiff had expressed willingness to remove her underclothing if male guards would withdraw. "Most people . . . have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons."); Forts v. Ward, 621 F.2d 1210, 1212, 1216-17 (2d Cir. 1980) (Reverses district court injunction prohibiting assignment of male guards to duties requiring observation of female inmates through all door windows during the night. Prison's offer to allow female inmates to cover window for short period while undressing and to provide suitable sleepwear were sufficient to protect inmates' privacy and guards' employment interests. "We do not elevate the employment rights of the guards above any protectable privacy rights of the inmates. We simply conclude that . . . the remedy proposed by the State will accord adequate protection to the privacy interests of the inmates by means that will avoid any denial of the guards' rights to equal employment opportunities.").¹⁸

18 See also, e.g., Miles v. Bell, 621 F. Supp. 51, 67-68 (D. Conn. 1985) (No violation of inmates' right to privacy where male inmates did not show that female guards "regularly" saw them naked. Court rules that "[t]hose cases which have found a violation of inmates' right to privacy have looked to the frequency or regularity of such 'viewing.' As a general rule, courts have found a violation only in those cases in which guards 'regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities or showering.'"); Storms v. Coughlia 600 F. Supp. 1214, 1222 (S.D.N.Y. 1984) ("Forcing an inmate to urinate in front of others, male or female, significantly enhances the humiliating nature of the test. By presenting testimony that the collection is always conducted in view only of the prisoner and testing officer, the State is in effect admitting that security demands do not require that the collection be conducted in view of others. . . . To conduct these humiliating procedures in the view of others when there is no legitimate need to do so is thus unreasonable.").

The difficulty the Courts have had in line drawing in this area is demonstrated in the "debate" between two of the country s most distinguished federal judges, Judges Easterbrook and Posner, in the majority and dissenting opinions in Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1996). In that case, a male pretrial detainee sued under § 1983 alleging that "female guards at the Cook County Jail are assigned to monitor male prisoners' movements and can see men naked in their cells, the shower, and the toilet." Id. at 145. The district court dismissed the complaint, and the Seventh Circuit affirmed.Id. Looking first to the Fourth Amendment, Judge Easterbrook held that since the Supreme Court had stated that "privacy is the thing most surely extinguished by a judgment committing someone to prison . . .," thus the "monitoring of naked prisoners is not only permissible . . . but also sometimes mandatory." Id. at 146. Judge Easterbrook rejected a Fifth Amendment due process claim because "[s]urveillance of prisoners is essential. . . . Guards do the surveillance. Male guards and female guards too. . . . Unless female guards are shuffled off to back office jobs, itself problematic under Title VII, they are bound to see the male prisoners in states of undress. Frequently. Deliberately. Otherwise they are not doing their jobs."Id. And Judge Easterbrook rejected the claim under the Eighth Amendment. Id. at 147-49 ("How odd it would be to find in the eighth amendment a right not to be seen by the other sex. Physicians and nurses of one sex routinely examine the other.")¹⁹ Judge Easterbrook summed up the majority's decision at the end of his opinion:

19 Judge Easterbrook added: "[T]he clash between modesty and equal employment opportunities has been played out in sports. Women reporters routinely enter locker rooms after games. How could an imposition that male athletes tolerate be deemed cruel and unusual punishment?"Id. at 148.

Where does this leave us? The fourth amendment does not protect privacy interests within prisons. Moving to other amendments does not change the outcome. Cross-sex monitoring is not a senseless imposition. As a reconciliation of conflicting entitlements and desires, it satisfies the Turner standard. It cannot be called "inhumane" and therefore does not fall below the floor set by the objective component of the eighth amendment. And [the male plaintiff inmate] does not contend that his captors adopted their monitoring patterns because of, rather than in spite of, the embarrassment it causes some prisoners. He does not submit that the warden ignored his sensibilities; he argues only that they received too little weight in the felicific calculus. Like the district court, therefore, we conclude that the complaint fails to state a claim on which relief may be granted.

Id. at 150-51.

Judge Posner in dissent found sufficient moral values in the Eighth Amendment to create some "right of privacy" for naked inmates:

The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution, like so much in the Bill of Rights, is a Rorschach test. What the judge sees in it is the reflection of his or her own values, values shaped by personal experience and temperament as well as by historical reflection, public opinion, and other sources of moral judgment. . . .

. . . .

The nudity taboo retains great strength in the United States. It should not be confused with prudery. It is a taboo against being seen in the nude by strangers, not by one's intimates. Ours is a morally diverse populace and the nudity taboo is not of uniform strength across it. It is strongest among professing Christians, because of the historical antipathy of the Church to nudity; and as it happens the plaintiff alleges that his right "to practice Ch[r]istian modesty is being violated." The taboo is particularly strong when the stranger belongs to the opposite sex. . . . If prisoners have no rights, the reconceptualization of the prison as a site of progressive social engineering should give us no qualms. Animals have no right to wear clothing. Why prisoners, if they are no better than animals? There is no answer, if the premise is accepted. But it should be rejected, and if it is rejected, and the duty of a society that would like to think of itself as civilized to treat its prisoners humanely therefore acknowledged, then I think that the interest of a prisoner in being free from unnecessary cross-sex surveillance has priority over the unisex-bathroom movement and requires us to reverse the judgment of the district court throwing out this lawsuit.

Id. at 151-52 (Posner, C.J., dissenting). Judge Posner adopted the distinction between occasional viewing and frequent, gratuitous exposure of naked inmates to guards of the opposite sex:

Title VII cannot override the Constitution. There cannot be a right to inflict cruel and unusual [psychological] punishments in order to secure a merely statutory entitlement to equal opportunities for women in the field of corrections. . . .

That is not to say that exposing the naked male body to women's eyes constitutes cruel and unusual punishment in all circumstances. A male prisoner has no constitutional right to be treated by a male doctor. Men have long been attended in hospitals by female nurses, and latterly by female doctors as well. Even the "right of privacy cases reject the suggestion that anytime a female guard glimpses a naked male prisoner his rights have been invaded. Not only is the injury from an occasional glimpse slight; but in addition, as we can see when the "right of privacy" cases are reclassified under the proper constitutional rubrics, neither the Eighth Amendment nor the counterpart protections of pretrial detainees under the due process clauses extend to unintentional wrongs. Deliberately to place male prisoners under continuous visual surveillance by female guards, however, so that whenever the prisoner dresses or undresses, takes a shower, or uses the toilet, a woman is watching him, gives even my colleagues pause.

. . . .

I have stated the interest at issue in this case as not being seen nude by a guard of the opposite sex, not only because most people are more embarrassed in that situation but also because the right of prisons and jails to maintain visual surveillance of potentially dangerous prisoners even when naked cannot be doubted in light of the serious security problems in many American prisons and jails today. What is in question is the right of prison officials to entrust the surveillance of naked prisoners to guards of the opposite sex from the prisoners. . . .

The Eighth Amendment requires in my view that reasonable efforts be made to prevent frequent, deliberate, gratuitous exposure of nude prisoners of one sex to guards of the other sex. I doubt that any more precise statement of the proper constitutional test is feasible.

Id. at 153-55 (Posner, C.J., dissenting) (citations omitted, emphasis added).

What conclusion does this Court draw from the these cases? There is no Supreme Court or Second Circuit case on point, few parolee cases and essentially two different lines of prisoner cases. Whatever the scope of the constitutional right should be, this Court has no hesitation in holding that it was not "clearly established" in September-October 2002 when Ms. Welch observed Mr. Baker's urine test.²⁰

20 Cf. Somers v. Thurman, 109 F.3d 614, 622 (9th Cir.) (granting qualified immunity to prison guards because "it is highly questionable even today whether prison inmates have a Fourth Amendment right to be free from routine unclothed searches by officials of the opposite sex, or from viewing of their unclothed bodies by officials of the opposite sex. Whether or not such a right exists, however, there is no question that it was not clearly established at the time of the alleged conduct"), cert. denied, 522 U.S. 852, 118 S.Ct. 143 (1997).

The Saucier and Ehrlich decisions, however, require this Court to go further and announce, in dicta, the proper scope of the constitutional right. (See page 16 above.) Unfortunately, defendants claimed that there was no constitutional violation (based on Ms. Welch's version of the facts) and that, in any event, defendants were entitled to qualified immunity because the right was not clearly established; defendants' qualified immunity argument did not address whether there was a constitutional violation if the facts were as Mr. Baker alleged, i.e., a close viewing of his genitals by Ms. Welch during the urine test. The defendants thus offered the Court no help in this aspect of the decision.

The cases make clear that the Court must balance the parolee's privacy interest with the State's legitimate equal employment and penological interests.²¹ The Court agrees that based on the current evidence before the Court, the balance should be struck to allow incidental and obscured viewing but prohibit regular and close viewing. Thus, a female parole officer is allowed to conduct a urine test of a male parolee and observe the test from a distance that does not provide a direct view of the male parolee's genitals. If "close" observation of the urine test becomes necessary, it should be done by a person of the same sex as the parolee. Thus, under Mr. Baker's version of the facts, in the future, a female parole officer would not be entitled to qualified immunity if she conducted the urine test by standing next to the male parolee viewing his penis. Under Ms. Welch's and Mr. Rodriguez's version of the facts, the parole officer's conduct would not violate the parolee's privacy rights.

21 Some of the decisions discussed above dealing with opposite sex observation of prisoners employed the four part analysis set forth inTurnery v. Safflev, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-62 (1987) ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." The Supreme Court identified several factors relevant to determining the reasonableness of the prison regulation, including whether the "inmate claimant can point to an alternative that fully accommodates the prisoners' rights at de minimis cost to valid penological interests. . . ."). This Court'sSaucier-Ehrlich mandated dicta conclusion also is consistent with the Turner v. Safflev approach to these questions.

The Court is confident that this balance will sufficiently protect the OOP's legitimate employment and penological interests. Indeed, the Court is essentially is adopting as the constitutional standard the very procedures that defendants Ms. Welch and Mr. Rodriguez describe as the current DOP policy. The Court reiterates that this is dicta and is based on the limited record before the Court (and defense counsel's failure to address this issue); other cases with a better developed record may lead to a different result. But following Ehrlich's directive, this dicta will serve to put parole officers on notice that in the future, the law will be considered "clearly established" in forbidding "close" observation of a parolee's genitals during a urine test by a parole officer of the opposite sex.

CONCLUSION

For the reasons set forth above, defendants' summary judgment motion should be GRANTED on qualified immunity grounds and Mr. Baker's complaint therefore should be dismissed.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable led S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15.16(2d Cir. 1989): Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).