Rather, the court must consider other factors such as institutional security and the prison's valid interest in efficiently positioning both female and male guards. See id. at 1121; Riddick v. Sutton, 794 F. Supp. 169, 173 (E.D.N.C. 1992); see also Timm v. Gunter, 917 F.2d 1093, 1101-1102 (8th Cir. 1990) (holding that minimal intrusions on inmates' privacy are outweighed by institutional concerns for safety and equal employment opportunity); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (recognizing the security interest in placing staff members most efficiently within the facility as well as the prison's valid interest in hiring women for positions as guards); Johnson v. Phelan, 69 F.3d 144, 146-151 (7th Cir. 1995) ("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.").
See Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981); see also X v. Bratten, 32 F.3d 564 (4th Cir. 1994); Riddick v. Sutton, 794 F.Supp. 169, 171 (E.D. N.C. 1992). However, infrequent or isolated exposures of male's bodies to female guards
Balancing the institutional needs against this isolated incident, no reasonable trier of fact could conclude the circumstances gave rise to a Fourth Amendment violation. See Riddick v. Sutton, 794 F. Supp. 169, 173 (E.D.N.C. 1992); see also Timm v. Gunter, 917 F.2d 1093, 1101-1102 (8th Cir. 1990) (opposite sex searches and surveillance upheld); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (occasional female guard presence at strip search not unconstitutional).
Balancing the institutional needs against this isolated incident, the search was reasonably necessary under the circumstances. See Riddick v. Sutton, 794 F. Supp. 169, 173 (E.D.N.C. 1992); see also Timm v. Gunter, 917 F.2d 1093, 1101-1102 (8th Cir. 1990) (holding that minimal intrusions on inmates' privacy are outweighed by institutional concerns for safety opportunity); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (recognizing the security interest in placing staff members most efficiently within the facility). Defendants' Motion for Summary Judgment is granted as to the Fourth Amendment claim.
A male corrections officer who remained “in the shower area” while a female showered without justification would presumably be subject to the same demotion Gethers received. Gethers cites to Riddick v. Sutton, 794 F.Supp. 169, 171 (E.D.N.C.1992) and Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir.1990) for the proposition that “minimal intrusions on an inmate's privacy [such as when a female officer observes a male prisoner naked because the exigencies of the situation demand it] are ... outweighed by institutional concerns for safety and equal employment opportunities.” Timm, 917 F.2d at 1102.
Although this issue was not directly raised by plaintiff, the court finds that the policy of allowing female officers to conduct pat and frisk searches of male inmates serves a valid penological interest in hiring female guards. Riddick v. Sutton, 794 F. Supp. 169, 171-72 (E.D.N.C. 1992). --------
They present the right as one not to be observed naked by members of the opposite sex and contend constitutional violations have only been found when such observation is frequent, regular and predictable, citing McCullar v. Babb, No. 1:05-CV-042 WCL, 2006 WL 623604, at *5 (N.D. Ind. March 10, 2006). They argue there is no violation when observation is just occasional, id. at *5, or where the observation was an anomaly caused by the inmate himself, citing Riddick v. Sutton, 794 F. Supp. 169, 170, 173 (E.D.N.C. 1992). They further argue that females have been allowed to observe male inmates under emergency situations, citing in support Canedy v. Boardman, 16 F.3d 183, 187 (7th Cir. 1994), where the Seventh Circuit noted that the case law had established that in emergency situations female guards could observe strip searches of male inmates.
When the inmate privacy issue has arisen in the context of unclothed prisoners being viewed by guards of the opposite sex, courts have consistently based their decisions on the frequency, regularity, and predictability with which such incidents occurred. See Cumbey v. Meachum, 684 F.2d 712 (10th Cir. 1982); Ashann-Ra v. Com. of Va., 112 F.Supp.2d 559 (W.D.Va. 2000) (holding routinized exposure of male inmates' unclothed persons to female guards may constitute constitutional violation); Riddick v. Sutton, 794 F.Supp. 169 (E.D.N.C. 1992) (infrequent viewing by female guard of male inmate while in shower was reasonably related to penalogical interest); Lee v. Downs, 641 F.2d 1117, 1119-1120 (4th Cir. 1981) (a violation of female inmate's privacy rights for male guards to remain in room and restrain inmate while her clothes were forcibly removed, where inmate had agreed to voluntarily remove her clothes if male guards left room; but not a constitutional violation for male guards to restrain her during body search by female guard after inmate herself removed dress and set fire to it — inmate was resisting search and immediate search was necessary); Hudson v. Goodlander, 494 F.Supp. 890, 893 (D.Md. 1980) (male inmate's rights violated by assignment of female guards to posts where they could view him while he was completely unclothed); Avery v. Perrin, 473 F.Supp. 90, 92 (D.N.Hamp. 1979) (male inmate's right to privacy not violated by female mail clerk who walked passed his cell at same time every day). Indeed, courts ex
Many courts which have considered the question have held that a male inmate's constitutional rights are not violated when a female guard is permitted to view his genitals on a limited basis. See Timm v. Gunter, 917 F.2d 1093, 1101-02 (8th Cir. 1990) (minimal intrusions on privacy outweighed by institutional concerns for safety and equal employment opportunity), cert. denied, 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991); Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988) (infrequent or casual observation or observation at a distance does not warrant court interference); Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (inmates' privacy needs outweighed by internal security needs and equal employment opportunities); Riddick v. Sutton, 794 F. Supp. 169 (E.D.N.C. 1992) (limited exposure of genitals to female officers not unconstitutional). However, routinely or regularly exposing an unclothed inmate to female guards may constitute a constitutional violation.
In short, although inmates have a limited right to privacy in prison, the precise boundaries of this limited right have not been clearly delineated. See Riddick v. Sutton, 794 F. Supp. 169 (E.D.N.C. 1992) (holding that policy of allowing female guards to view male inmates in state of undress while using showers or toilets did not violate their right to privacy where inmates were permitted to cover themselves with towels or newspapers while using the toilet). But see Dawson v. Kendrick, 527 F. Supp. 1252, 1316 (S.D.W.Va. 1981) (holding that prison violated female inmates' rights when it enabled male inmates and prison staff to peer into female inmates' cells and view them undressing or using toilets); Hudson v. Goodlander, 494 F. Supp. 890, 892 (D.Md. 1980) (holding that male inmate's privacy rights were violated when female guards were posted so they could view him while he was unclothed).