Although the ACA and DOCS standards constitute appropriate goals formulated by experts in the field, and may provide guidance for prison administrators or other branches of the government, they do not establish constitutional minima. Rhodes v. Chapman, 452 U.S. at 348, n. 13, 101 S.Ct. at 2409, n. 13; Bell v. Wolfish, 441 U.S. at 544, n. 27, 99 S.Ct. at 1876, n. 27; Miles v. Bell, 621 F. Supp. 51, 60 (D.Conn. 1985). The Court must look at the effect of the challenged condition upon the imprisoned.

For example, in Miles v. Bell, the court found that "there is no specific evidence of significant adverse health effects caused by waiting to use toilet facilities." 621 F. Supp. 51, 61 (D. Conn. 1985). The court in Smith v. Brady found that plaintiff's allegations that there was a line to use the restroom was not a deprivation of the minimal civilized measure of life's necessities.

For example, in Miles v. Bell, the court found that "there is no specific evidence of significant adverse health effects caused by waiting to use toilet facilities." 621 F. Supp. 51, 61 (D. Conn. 1985). The court in Smith v. Brady found that plaintiff's allegations that there was a line to use the restroom was not a deprivation of the minimal civilized measure of life's necessities. 2018 WL 1787740, at *2 (W.D. Ky. Apr. 13, 2018).

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).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.

In step 3 the fact finder must determine whether the plaintiffs have shown that they are routinely or regularly exposed to female guards while unclothed, as opposed to occasional, inadvertent encounters, or (the other side of the coin) that the defendants have exaggerated their concern for institutional security and preventing sex discrimination. See Cumbey v. Meachum, 684 F.2d 712 (10th Cir. 1982) (as a general rule, violation of prisoners' right to privacy occurs when guards regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities or showering); Miles v. Bell, 621 F. Supp. 51 (D.Conn. 1985) (same); Hudson v. Goodlander, supra (evidentiary hearing held to determine regularity of the assignment of female guards to posts where they are exposed to inmate nudity; this issue was deemed critical because neither an inadvertent encounter nor a regularly scheduled visit by a female employee at an announced time would rise to the level of constitutional deprivation); Avery v. Perrin, 473 F. Supp. 90 (D.N.H. 1979) (no constitutional violation where de minimus encounters occurred); cf. Shabazz v. O'Lone, supra (in First Amendment context, once the state satisfies its burden, deference is to be accorded to the judgment of prison officials unless plaintiffs show by substantial evidence that such officials have exaggerated their response to security considerations or that their beliefs are unreasonable). In view of the judicially-mandated deference to prison officials, many courts have simply begun their review of similar conflicts with the third and last step of the analysis.

event of fire); Masonoff v. DuBois, 899 F.Supp. 782, 798-99 (D.Mass. 1995) (finding that there is a triable issue concerning the plaintiffs' fire hazard claim where (1) it was undisputed that the prison lacked automatic locks on the cell doors and a functioning sprinkler system and (2) that the state building code applicable to the prison required a sprinkler system and encouraged the use of automatic door locks, but (3) where the prison may have mitigated any danger to withstand constitutional scrutiny when it implemented rigorous fire safety procedures, including evacuation drills, fire drills and inspections of fire safety equipment); French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1986) (observing that "[t]he eighth amendment does not constitutionalize the Indiana Fire Code. Nor does it require complete compliance with the numerous OSHA regulations" and remanding to the district court to order only those remedies that are necessary to bring conditions above constitutional minima); Miles v. Bell, 621 F.Supp. 51, 64-5 (D.Conn. 1985) (no constitutional violation even though the laundry room door in prison was not a one-hour fire resistant door, as required by the LSC). The citations that follow represent this continuum.

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. See Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991) (per curiam); Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980); Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981); Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987); Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079 (8th Cir.), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980); Timm v. Gunter, 917 F.2d 1093 (8th Cir. 1990); Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985); Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988); Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993); Cumbey v. Meachum, 684 F.2d 712 (10th Cir. 1982); Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. 1982); Bowling v. Enomato, 514 F. Supp. 201 (N.D.Cal. 1981); Robbins v. South, 595 F. Supp. 785 (D.Mont. 1984); Miles v. Bell, 621 F. Supp. 51 (D.Conn. 1985); Smith v. Chrans, 629 F. Supp. 606 (C.D.Ill. 1986); Johnson v. Pennsylvania Bureau of Corrections, 661 F. Supp. 425 (W.D.Pa. 1987). See also Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987) (a transsexual inmate housed in an all-male prison has a privacy interest in not being "regularly forced to strip before guards and other inmates" if "unrelated to prison needs"); Reidt v. County of Trempealeau, 975 F.2d 1336, 1339 n. 3 (7th Cir. 1992) (citing cases as recognizing that "Title VII's proscription against sexual discrimination in employment must be balanced against issues of inmate privacy and jail security"); Comment, Sex Discrimination in Prison Employment: The Bona Fide Occupational Qualification and Prisoners' Privacy Rights, 65 Iowa L.Rev. 428, 445 (1980) ("In the prison setting the courts should continue to balance not only the interest of the prison and the job applicant, but the interests of the prisoner as well.")

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. See Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) ("assigned positions of female guards that require only infrequent and casual observation, or observation at distance, and that are reasonably related to prison needs are not so degrading as to warrant court interference"); Grummet v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) ("(t)o restrict . . . female guards from . . . occasional viewing of the inmates would necessitate a tremendous rearrangement of work schedules, and possibly produce a risk to both internal security needs and equal employment opportunities"); Johnson v. Pa. Bureau of Corrections, 661 F. Supp. 425, 430 (W.D.Pa. 1987); see also Miles v. Bell, 621 F. Supp. 51 (D.Conn. 1985). This observation is borne out by application of the Turner test.

In light of this case law, Plaintiff's mere allegation that “there was a female officer working the shift” when he showered in front of a camera, Compl. at 5, fails to state a claim for a violation of his right to privacy, even when liberally construed in light of Plaintiff's pro se status. See Miles v. Bell, 621 F.Supp. 51, 67 (D. Conn. 1985) (stating that Forts “merely emphasizes that in order for inmates to show a violation of their privacy rights, they must show that the ‘viewing' by guards of the opposite sex occurs on a regular basis”). Based on the foregoing, even if Plaintiff had not failed to plead Defendant's personal involvement in the events he describes in his complaint, the Court would nonetheless dismiss his section 1983 claim pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a cognizable Fourth Amendment claim.

See, e.g., Gambino v. Payne, 12-CV-0824SC, 2013 WL 1337319, at *5 (W.D.N.Y. Mar. 29, 2013) (no Fourth Amendment violation where removal of sheets from shower area exposed plaintiff's genital area to officers and other inmates); Baker v. Welch, 2003 WL 22901051, at *20 (S.D.N.Y., Dec.10, 2003) (male parolee complained that a female parole officer watched him provide a urine sample; “the balance should be struck to allow incidental . . . viewing but prohibit regular . . . viewing.”); Miles v. Bell, 621 F.Supp. 51, 67 (D. Conn. 1985) (“Those cases which have found a violation of inmates' rights 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....”)