Opinion
Civil No. 02-909-AS.
May 20, 2004
FINDINGS AND RECOMMENDATION
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983 pro se. Currently before the court is defendants' motion for summary judgment (docket No. 36). For the reasons that follow, defendants' motion should be granted.
BACKGROUND
Plaintiff was found guilty, except for insanity, of two counts of assault in the second degree in Multnomah County Circuit Court. As a result, under Oregon Revised Statute § 161.327, he was committed to the Oregon State Hospital, under the jurisdiction of the Psychiatric Security Review Board (PSRB), for a period of ten years. Plaintiff's complaint arises from a period or periods of time in which he was housed in Ward 48-B at the Oregon State Hospital, which is the maximum security unit.
Plaintiff alleges that his "privacy rights" under the Fourth and Fourteenth Amendments were violated when female employees of the hospital performing security duties observed plaintiff in various states of undress, including nudity and while using toilet facilities. Plaintiff previously asserted a claim based on the conditions of his receipt of "legal mail." He has subsequently abandoned that claim and requested it be dismissed without prejudice. Plaintiff's Response to Defendants' Motion for Summary Judgment, pp. 9-10.
SUMMARY JUDGMENT STANDARD
When considering a motion for summary judgment, the district court's role is not to weigh the evidence, but merely to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, the court determines that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(e); Vander v. United States Dept. of Justice, 268 F.3d 661, 663 (9th Cir. 2001).
A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must persuade the court through "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Only after the moving party has made such a showing does the burden shift to the opposing party to show that a genuine issue of fact remains. See Fed.R.Civ.P. 56(e).
To establish the existence of a genuine issue of material fact, the non-moving party must make an adequate showing as to each element of the claim on which the non-moving party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 322-23; see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). The opposing party may not rest on conclusory allegations or mere assertions, see Taylor, 880 F.2d at 1045; Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988), but must come forward with significant probative evidence, see Anderson, 477 U.S. at 249-50; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). The evidence set forth by the non-moving party must be sufficient, taking the record as a whole, to allow a rational jury to find for the non-moving party.See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Taylor, 880 F.2d at 1045. Where "the factual context renders [the non-moving party's] claim implausible . . ., [that party] must come forward with more persuasive evidence to support his claim that would otherwise be necessary" to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Harper, 877 F.2d at 731.
The materiality of facts is determined by looking to the substantive law that defines the elements of the claim. See Anderson, 477 U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996).
OTHER LEGAL STANDARDS
Defendants move for summary judgment on the grounds that: (1) they are entitled to qualified immunity from liability for damages because they did not violate plaintiff's clearly established constitutional rights; and (2) plaintiff is not entitled to equitable relief "because there is no very significant possibility that is both real and immediate that plaintiff will be harmed in the future by any unconstitutional practices." Defendants' Memorandum in Support of Summary Judgment, p. 3.
There is a two-part test to determine whether an official is entitled to qualified immunity:
"(1) First the court considers whether the law governing the official's conduct was clearly established. If it was not clearly established, the official is entitled to immunity from suit. (2) If the law was clearly established, we proceed to ask if under the law a reasonable official could have believed the conduct was lawful. Therefore, an official is denied qualified immunity only if the law was clearly established and a reasonable official could not have believed the conduct was lawful."Somers v. Thurman, 109 F.3d 614, 617 (9th Cir.), cert. denied, 522 U.S. 852 (1997), citing Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).
DISCUSSION
Plaintiff admits that "during the period of time that the incidents occurred which resulted in the Civil Rights action being filed with the court Plaintiff was housed on Ward 48-B at the Oregon State Hospital." Plaintiff's Reply to Defendant's Amended Concise Statement of Facts in Support of Summary Judgment, p. 2, ¶ IV. Defendants assert that
"Richard Laing has been housed at the Oregon State Hospital in Salem for nearly 15 months. . . . [H]is housing fluctuates between Ward 48-B and the 50 Building. He is sometimes assaultive and inappropriate with peers. As his behavior improves, Mr. Laing earns a transfer to the less restrictive 50 Building. If his conduct reverts to that assessed to be inappropriate or dangerous, he is reassigned to Ward 48-B for closer supervision. As of this writing, Mr. Laing is housed on Ward 50-H."
Defendants' Amended Concise Statement of Facts in Support of Summary Judgment, p. 4, ¶ 13 (citations to record omitted). Defendants argue that, because plaintiff was not housed in Ward 48-B at the time the summary judgment motion was filed, plaintiff lacks standing to challenge the conditions of his confinement in Ward 48-B. Given the length of time remaining in plaintiff's commitment as well as defendants' admission that plaintiff's housing "fluctuates between Ward 48-B and the 50 Building," there appears to be a sufficient likelihood that plaintiff will be transferred back to Ward 48-B, if he has not been already, for him the challenge the conditions of confinement there.
Defendants are Stan F. Mazur-Hart and Christie Gallegos, who were, during the relevant time period, Superintendent of Oregon State Hospital and Unit Director for Ward 48-B, respectively. Plaintiff does not allege that either defendant personally observed him in a state of undress while he was housed on Ward 48-B. Rather plaintiff is suing these defendants in their official capacities, for injunctive relief — specifically for an order requiring them to devise a plan that would prevent female staff from observing male residents of the ward in states of undress or to modify the physical plant to accomplish that goal. Complaint, Prayer for Relief. He also seeks general damages in the amount of $10,000 and punitive damages in the amount of $50,000. Because state officials sued in their official capacity for damages are not "persons" for purposes of Section 1983, plaintiff cannot, as a matter or law, state a claim against these defendants for damages. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24 (1997).
Neither defendant is specifically named in any of plaintiff's grievances as having seem him undressed, though he does mention several female staff members by name. His complaint alleges that his privacy rights were violated when he was observed undressed by "female staff personnel," "women staff personnel" or "female hospital staff." Given his allegations, it may be assumed that he would not complain if Dr. Mazur-Hart observed him in a state of undress because plaintiff's claims are specifically directed against observations by female staff. Because there is no respondeat superior liability in section 1983 claims, plaintiff is given the benefit of the assumption that he is suing the defendants in their official, rather than personal, capacities. See Monell v. Department of Social Services of New York, 436 U.S. 658, 691-94 (1978).
Regarding plaintiff's claim for injunctive relief, defendants argue that they are qualifiedly immune because they did not violate plaintiff's clearly established constitutional rights. Defendants are correct. As noted in the Opinion and Order in this case of December 13, 2003, which denied plaintiff's motion for a temporary restraining order or preliminary injunction: "Whether prisoners retain any right to bodily privacy cognizable under the Fourth Amendment remains the subject of some question. At least one court has held categorically that `the Fourth Amendment does not protect privacy interests within prisons.' Johnson v. Phelan, 69 F.3d 144, 150 (7th Cir. 1995), cert. denied, 519 U.S. 1006 (1996)."
The issue was examined extensively by the Ninth Circuit inSomers v. Thurman, which noted that "it is highly questionable even today whether 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." 109 F.3d at 622. In holding that it was not clearly established that male inmates had Fourth Amendment privacy interests prohibiting cross-gender body cavity searches, the Somers court quoted the following excerpt from Judge Panner's opinion in Canell v. Armenikis, 840 F. Supp. 783 (D. Or. 1993):
"`Accordingly, the question presented here, which has apparently never been decided by the Ninth Circuit, is whether the [C]onstitution prohibits a female guard from viewing a unclothed mail inmate under circumstances where the identical viewing would be proper if the viewer was a male guard. I hold that it does not. So long as there is sufficient justification for a guard to view an unclothed male inmate, and the guard behaves in a professional manner, the gender of the guard is irrelevant.'"Somers, 109 F.3d at 621, quoting Canell, 840 F. Supp. at 784. In the present case, plaintiff concedes that the viewing by female staff, which he challenges, would be proper if done by a male staff member. Complaint, Supporting Facts ("Plaintiff asserts that what are otherwise "REASONABLE OBSERVATIONS" for security purposes becomes [ sic] "UNREASONABLE" when conducted by hospital staff of the opposite sex.") Furthermore, the summary judgment record indicates that, under the circumstances, there is sufficient justification for female staff members to view unclothed male patients, and there are no allegations of unprofessional behavior. The circumstances in which a female staff member might view an unclothed mail patient in Ward 48-B, the maximum security ward, would be during routine security checks of patient rooms, if the male patient was, at the time, unclothed or using the toilet facilities. Other than routine security checks, a female staff member might view an unclothed male patient if he was running through the ward unclothed. Affidavit of Stanley F. Mazur-Hart, Ph.D., ¶¶ 5-7. Under these circumstances, there is, in the words of Judge Panner, "sufficient justification" for a female staff person to view an unclothed male patient. See Canell, 840 F. Supp. at 784.
The state of the law remains the same in the wake of Somers and Canell. There is no clearly established right for inmates to be free from the viewing of their unclothed bodies by officials of the opposite sex. Thus, defendants should be granted summary judgment in their favor on the ground of qualified immunity.
Plaintiff argues that his case is distinguishable from cases concerning the privacy rights of incarcerated persons because he is not a prison inmate, but rather is housed at the Oregon State Hospital. Plaintiff is incorrect. He was convicted of criminal acts and involuntarily committed to the care of the PSRB at the Oregon State Hospital. The fact that he is confined at the Oregon State Hospital, rather than a traditional correctional facility does not alter the contours of his constitutional rights. See Martyr v. Bachik, 755 F. Supp. 325, 328 (D. Or. 1991) (confinement at Oregon State Hospital of inmate found not guilty of criminal charges by reason of insanity "is analogous to incarceration after conviction of criminal charges," such that court would borrow from the jurisprudence of prisoner cases);see also Lopes v. Rogers, 909 F. Supp. 737, 741 (D. Hawaii 1995) ("[b]y definition, State psychiatric hospitals, like state correctional facilities, are charged with the extraordinary responsibility of working with individuals [who], at times, are unable to conform to societal rules and mores").
Thus, under the applicable law concerning the rights of inmates, defendants should be entitled to qualified immunity against plaintiff's claim.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (docket No. 36) should be granted. Plaintiff's first claim — that his privacy rights are violated when female hospital staff view him undressed or using toilet facilities — should be dismissed with prejudice. Plaintiff's second claim — based on legal mail — should be dismissed without prejudice.SCHEDULING ORDER
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due June 4, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due June 18, 2004, and the review of the Findings and Recommendation will go under advisement on that date.