Horn v. Sparkman et al
Filing
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MEMORANDUM OPINION re 8 Order Dismissing Case. Signed by W. Allen Pepper on 10/14/2011. (pls)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
THOMAS HORN
PLAINTIFF
V.
NO. 4:11CV110-P-A
EMMITT SPARKMAN, et al.,
DEFENDANTS
OPINION DISMISSING CLAIMS
This matter is before the court, sua sponte, for consideration of dismissal. Plaintiff, an
inmate currently incarcerated at the Mississippi State Penitentiary, files this pro se complaint
pursuant to 42 U.S.C. § 1983. The plaintiff complains that the defendants have refused to install
walls or partitions in the shower and toilet areas thereby violating his right to privacy. As redress
for this perceived transgression, the plaintiff is seeking compensatory damages.
After carefully considering the contents of the pro se complaint and giving it the liberal
construction required by Haines v. Kerner, 404 U.S. 519 (1972), this court has come to the following
conclusion.
The right to privacy is fundamentally incompatible with the close and continual surveillance
of inmates and their cells required to ensure institutional security. Hudson v Palmer, 468 U.S. 517,
527, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). A prisoner does, however, possess a right to bodily
privacy. See Oliver v. Scott, 276 F.3d 736, 745-46 (5th Cir. 2002). The right to privacy is minimal
and the state’s intrusion on the inmate’s right must be balanced against the state’s interest. Turner
v. Safley, 482 U.S. 79, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987). Generally the minimal invasion of
privacy is justified by the state’s interest in promoting security. Oliver, 276 F.3d at 743.
Great deference is given to prison officials’ judgments regarding security. Therefore, the
challenged regulation need only be “reasonably related to legitimate penological interests.” Turner,
482 U.S. at 89. The test requires that (1) the regulation must have a valid, rational connection to the
governmental interest; (2) the court should consider if the inmate has alternative methods for
exercising his right; (3) the court should also consider the impact that the accommodation would
have on other inmates or prison staff; and (4) the existence of easy alternatives may demonstrate the
regulation or policy is an exaggerated response. Id. at 89-90.
In Oliver, the plaintiff, a male inmate, complained that female guards were permitted to
conduct strip searches and observe male inmates showering and using the bathroom. Oliver, 276
F.3d at 740. He argued that the female inmates had shower and toilet partitions to shield them from
view. Id. On appeal, the Court found that security was a legitimate concern among male inmates
and that constant monitoring of all areas was necessary to maintain security of the inmates and the
staff. Id. at 746. Applying the four Turner factors, the Court held that the policy (not having
partitions) allowed the largest number of personnel to monitor all areas and prevent violence. Id.
The facility also allowed the inmates to shield themselves with towels. Id. The Court noted that
forcing only male guards to monitor male inmates would have an undesirable ripple effect forcing
the resignation of a high percentage of its staff. Id. Lastly, the plaintiff failed to identify any
alternative that would be practical and feasible. Id. The Court concluded by upholding the dismissal
of Oliver’s right to privacy claim. Id.
The facts of Oliver are indistinguishable. The absence of partitions in the bathrooms is
rationally related to the overall security of the facility. Other less expensive and more practical
alternatives would be to use towels as some minimal amount of shielding. Requiring the defendants
to use partitions in the shower and toilet areas would severely diminish the deference afforded to
prison officials who are in a far better position to make these types of security decisions. The court
finds that the policy regarding partitions at the Mississippi State Penitentiary is not unconstitutional.
See Sinclair v. Stalder, 2003 WL 22436063 at *1, 78 Fed. Appx. 987, 989 (5th Cir. Oct. 28, 2003)
(use of female officers to supervise male inmates does not violate the First Amendment right to
privacy).
Additionally, the plaintiff has not alleged the requisite physical injury that must accompany
any § 1983 claim for damages. Geiger v. Jowers, 404 F.3d 371 (5th Cir. 2005). Therefore
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Plaintiff’s complaint must be dismissed as failing to state a cause of action upon which relief may
be granted.
A final judgment in accordance with this opinion will be entered.
THIS the 14th day of October, 2011.
/s/ W. Allen Pepper, Jr.
W. ALLEN PEPPER, JR.
UNITED STATES DISTRICT JUDGE
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