Oliver v. Scott

 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 00-10898 _______________ NORMAN CHARLES OLIVER, Plaintiff-Appellant, VERSUS WAYNE SCOTT, ET AL., Defendants, WAYNE SCOTT, GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, AND CORRECTIONS CORPORATION OF AMERICA, Defendants-Appellees, _________________________ Appeal from the United States District Court for the Northern District of Texas _________________________ January 9, 2002 Before BALDOCK,* SMITH, and EMILIO M. GARZA, Circuit Judges. * * Circuit Judge of the Tenth Circuit Court of (...continued) (continued...) Appeals, sitting by designation. JERRY E. SMITH, Circuit Judge: Oliver arrived in July 1997 as a post- conviction transfer inmate, serving concurrent In this civil rights action brought pursuant ten- and nine-year sentences for robbery by to 42 U.S.C. § 1983, state jail inmate Norman threats and robbery causing bodily harm. Be- Oliver challenges the practice of permitting fe- cause of overcrowding in TDCJ facilities, Oli- male guards to monitor male inmates in ver had not been processed into one of bathrooms and showers but not using male TDCJ’s Institutional Division facilities. Al- guards to monitor female inmates under similar though Dawson was constructed to incarcerate circumstances. Agreeing with the district state jail felons, a substantial number of male court that there is no constitutional violation, inmates there in 1997-98 were transfer we affirm that court’s summary judgment. inmates. I. The status of transfer inmates is The Dawson State Jail Facility (“Dawson”) considerably different from that of state jail is a correctional facility owned by the State of felons. Transfer inmates are awaiting transfer Texas through the Texas Department of from a county jail to an Institutional Division Criminal Justice-State Jail Division (“TDCJ”). facility; they are felons convicted of crimes Through August 1998, Corrections resulting in greater sentences and fines than Corporation of America (“CCA”), a private those imposed on state jail felons. Transfer corporation, operated Dawson under a inmates at Dawson were housed separately management contract with Dallas County, from state jail felons during CCA’s which in turn contracted with TDCJ. management. No female transfer inmates were Management and Training Corporation housed there during CCA’s management; all (“MTC”) assumed operation of the facility in female inmates were state jail felons, and most September 1998. were non-violent offenders serving short sentences for crimes such as hot check writing Dawson, a ten-story facility housing about and driving while intoxicated. 2,000 inmates, began operations in July 1997. During its management, CCA housed inmates A few female guards, but mostly male, were on all floors except the first and second. Daw- assigned to monitor the male housing areas; son had only male inmates fro m July to this was necessary to staff all housing areas November 1997, when female inmates began adequately, for security reasons. Moreover, arriving. From November 1997 through prohibiting female officers on the male floors August 1998, Dawson had about 250 females would conflict with CCA’s equal employment and 1,750 males. policies and practices, which prohibit sex discrimination. The females were on the ninth floor, and the males were on the others. In the spring of II. 1998, at the direction of TDCJ, limited parti- Oliver sued state correctional officials tions were added to the bathroom areas of the Wayne Scott, Gary Johnson, and Janice Wil- ninth floor, where the females were housed; son, and CCA and MTC, alleging violations of there was no instruction to install partitions on his right to privacy, right to freedom from un- the male floors. reasonable search and seizure, and right to 2 equal protection under the Fourth and liability. Oliver’s claim against Wilson and Fourteenth Amendments.1 Oliver complains MTC was settled. that female prison employees conducted strip searches of male inmates and observed male The district court also granted summary inmates showering and using the bathroom. judgment in favor of CCA, holding that Oliver Oliver alleges that male prison employees did had failed to allege a specific unconstitutional not conduct strip searches of female inmates or search and seizure; Oliver did not provide any observe female inmates in the bathroom. specific evidence of cross-sex strip searches. The court ruled that the CCA’s interests in Dawson had showers and toilet partitions preserving security and equal employment op- that shielded female prisoners from view dur- portunities justified any privacy invasion ing their use of the facilities but did not caused by cross-sex monitoring. The court provide the same privacy for male prisoners. reasoned that differences in the dangerousness Female officers made visual checks of the of the male and female prisoners prevented Ol- dorm areas, including these shower and iver from showing that they were “similarly bathroom areas. Oliver claims that the situated” under the Equal Protection Clause. individual state defendants, as TDCJ Finally, the court held that the Prison executives, promulgated the policies, Litigation Reform Act (“PLRA”) barred practices, and standards under which these recovery, because Oliver had not demonstrated alleged constitutional violations occurred and a physical injury. failed adequately to train and/or supervise their employees regarding strip search procedures. IV. “We review the district court’s ruling under III. [rule] 12(b)(6) de novo.” Shipp v. McMahon, The district court dismissed Oliver’s claims 234 F.3d 907, 911 (5th Cir. 2000), cert. against Scott and Johnson for failure to state a denied, 121 S. Ct. 2193 (2001). When ruling claim upon which relief can be granted. See on a rule 12(b)(6) motion, the court must lib- FED. R. CIV. P. 12(b)(6). The court held that erally construe the complaint in favor of the Oliver’s transfer mooted his request for plaintiff and assume the truth of all pleaded injunctive relief and that ongoing judicial facts. Brown v. NationsBank Corp., 188 F.3d supervision of a prisoner class action 579, 586 (5th Cir. 1999). “The court may precluded additional judicial oversight of strip dismiss a claim when it is clear that the plaintiff search procedures. The court held that the can prove no set of facts in support of his Eleventh Amendment bars damage claims claim that would entitle him to relief.” Jones against the officials in their official capacity v. Greninger, 188 F.3d 322, 324 (5th Cir. and that the vague allegations about strip 1999). We must construe Oliver’s pro se brief searches did not suffice to show individual liberally in his favor. Haines v. Kerner, 404 U.S. 519, 520 (1972). 1 On appeal, Oliver does not argue that cross- The generic pleading requirements of FED. sex surveillance or searches violate his right to be R. CIV. P. 8 go vern suits against individual free from unreasonable searches and seizures. He defendants in their official capacity. Anderson uses the Fourth Amendment only as a source of v. Pasadena Indep. Sch. Dist., 184 F.3d 439, privacy rights. 3 443 (5th Cir. 1999). Oliver need only provide for an injunction requiring privacy partitions. “‘a short and plain statement of the claim’ that will give the defendant fair notice of what the Even assuming, arguendo, that Oliver has plaintiff’s claim is and the grounds upon which pleaded facts sufficient to support requiring it rests.” Leatherman v. Tarrant County privacy partitions at Dawson, that request is Narcotics Intelligence & Coordination Unit, moot. The transfer of a prisoner out of an in- 507 U.S. 163, 168 (1993) (citation omitted). stitution often will render his claims for injunctive relief moot. 2 Oliver, however, Plaintiffs suing governmental officials in argues that his alleged constitutional violations their individual capacities, however, must al- are “capable of repetition yet evading lege specific conduct giving rise to a review.”3 constitutional violation. Anderson, 184 F.3d at 443. This standard requires more than Oliver must show either a “demonstrated conclusional assertions: The plaintiff must probability” or a “reasonable expectation” that allege specific facts giving rise to a he would be transferred back to Dawson or constitutional violation. Baker v. Putnal, 75 released and reincarcerated there. Murphy v. F.3d 190, 194 (5th Cir. 1996). Hunt, 455 U.S. 478, 482 (1982). At its most lenient, the standard is not “mathematically A. precise” and requires only a “reasonable like- Oliver requested two injunctions: (1) one lihood” of repetition. Honig v. Doe, 484 U.S. banning opposite-sex strip searching in non- 305, 318-19 (1988). Even under the most per- exigent circumstances and in front of non- missive interpretation, neither Oliver’s security personnel; and (2) another requiring complaint nor his appellate brief supports the the installation of privacy partitions in front of claim that the constitutional violation is shower doors and between toilets. The district capable of repetition. court refused to exercise jurisdiction over the first request for injunctive relief, because Oliver’s brief alleges that the TDCJ’s state- TDCJ’s strip search policies remained the wide policy of permitting cross-sex searches subject of ongoing supervision by another and monitoring makes the privacy violations federal district court. See Aranda v. Lynaugh, No. H-89-277 (S.D. Tex.). Individual 2 prisoners cannot pursue suits for “equitable Weinstein v. Bradford, 423 U.S. 147, 196 relief within the subject matter of the class (1975) (per curiam) (plaintiff’s individual suit action.” Gillespie v. Crawford, 858 F.2d challenging parole procedures mooted by release 1101, 1102-03 (5th Cir. 1988) (en banc). absent “demonstrated probability” that he would Claims for equitable relief can be made only again be subject to parole board’s jurisdiction); through the class representative. Long v. Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1081 (5th Cir. 1991) (per curiam) (holding Collins, 917 F.2d 3, 4-5 (5th Cir. 1990). that prisoner transferred out of offending institution could not state a claim for injunctive relief). Even construing Oliver’s pro se brief lib- erally, he does not raise this issue on appeal. 3 See Hardwick v. Brinson, 523 F.2d 798, 800 Because Oliver does not contest dismissal of (5th Cir. 1975) (stating that possibility of transfer this claim, we need consider only his request back would make claim capable of repetition yet evading review). 4 capable of repetition. The complaint itself, B. however, alleges, at most, facts sufficient only Oliver also sought damages against Scott to support a claim for constitutional violations and Johnson in their official and individual at Dawson. The complaint alleges that the capacities. The district court held that the warden acted “pursuant to” TDCJ policies, but Eleventh Amendment bars Oliver’s suit for it fails to identify any specific policy or to ex- damages against officials in their official plain how those policies led to constitutional capacity. We twice have held that the violations. Eleventh Amendment bars recovering § 1983 money damages from TDCJ officers in their Neither Oliver’s complaint nor his brief official capacity.5 cogently explains how these statewide policies affect his current conditions of imprisonment. Oliver contends that the officials should be As we discuss below, TDCJ’s policies are fa- individually liable for strip searches and cross- cially constitutional; Oliver’s factual sex monitoring “pursuant to” TDCJ policies. allegations challenge only their application. Oliver must satisfy a heightened pleading Nor does Oliver purport to represent prisoners standard to state a claim against Scott and or pretrial detainees still incarcerated at Daw- Johnson in their individual capacities. Baker, son.4 The district court correctly found that 75 F.3d at 194. Section 1983 does not create Oliver is not likely to suffer from these alleged supervisory or respondeat superior liability.6 constitutional violations again. The individual officials may be liable only for implementing a policy that is “itself [ ] a repu- Second, Oliver’s complaint requests diation of constitutional rights” and “the mov- statewide relief, namely that all Texas inmate ing force of the constitutional violation.” facilities provide shower doors and toilet Grandstaff v. City of Borger, 767 F.2d 161, partitions. That claim fails for the same reason 169, 170 (5th Cir. 1985). Oliver’s complaint that the constitutional infractions at Dawson fails to identify specific policies or to explain are not capable of repetition yet evading re- how they permitted or possibly encouraged view. The complaint does not identify specific cross-sex strip searches and monitoring. He unconstitutional state policies or their application to other institutions; it does not 5 plead facts that would prove male and female Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. inmates are similarly situated. As explained in 1998) (extending Eleventh Amendment to TDCJ); part IV.B, the only statewide policy identified Aguilar v. TDCJ, 160 F.3d 1052, 1054 (5th Cir. by either party passes constitutional muster. 1998) (extending immunity to TDCJ’s officers acting in official capacity). 6 Alton v. Tex. A & M Univ., 168 F.3d 196, 200 (5th Cir. 1999) (“Only the direct acts or omissions 4 The Supreme Court has applied a more lenient of government officials, not the acts of standard where the named representatives’ claims subordinates, will give rise to individual liability are mooted but the class will suffer repeated under § 1983.”); Thompkins v. Belt, 828 F.2d 298, constitutional violations without judicial 303 (5th Cir. 1987) (“Under section 1983, intervention. Then, the class members’ live claims supervisory officials are not liable for the actions can justify exercising Article III jurisdiction. E.g., of subordinates on any theory of vicarious Bell v. Woolfish, 441 U.S. 520, 527 n.5 (1979). liability.”). 5 must plead such specific facts to survive a rule Once again, this policy does not cause a 12(b)(6) motion to dismiss claims against constitutional violation. Scott and Johnson in their individual capacities. By delegating the decision to lower officers, t he policy allows for the possibility The only policy that the parties identified at that a constitutional violation might occur, but any point in the litigation is TDCJ it imposes no liability on the policymaker. Oli- Administrative Directive 3.22, which governs ver might allege specific facts that would make strip, pat-down, and visual searches.7 The lower-level officers liable for any un- directive mandates “[w]hen possible staff of constitutional application of the policy; the the same gender” should perform strip policy itself, however, is constitutional. The searches. Only the warden can approve cross- district court properly dismissed the complaint sex strip searches under “extraordinary against Scott and Johnson for failure to allege circumstances.” an unconstitutional policy. Even if, arguendo, Wilson, the warden at V. Dawson, approved cross-sex strip searches Oliver argued that CCA had violated his absent extraordinary circumstances and there- privacy rights by permitting female guards to bySSagain arguendoSSviolated Oliver’s right conduct surveillance of male inmates in to privacy or equal protection, see Bell, 441 showers and bathrooms and by failing to install U.S. at 558-60 (upholding strip searches as privacy partitions.8 Oliver further contended constitutional under a balancing test), the ad- that because CCA took these measures to ministrative directive narrowly cabins the protect the privacy of female inmates, CCA scope of cross-sex strip searches and delegates violated his right to equal protection.9 the decision to the warden. Scott and Johnson cannot be held vicariously liable for Wilson’s actions, and Oliver cannot credibly allege that 8 Because CCA no longer operates Dawson, and the policy delegating the decision violates a Oliver does not allege that CCA controls the constitutional right. privacy policies at other state institutions, only Oliver’s request for damages remains pending The administrative directive also states that against CCA. prison guards of the same sex should perform 9 visual and pat-down searches “when possible” Some courts have held that cross-sex searches or unless “circumstances dictate” otherwise. and monitoring can violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Jordan v. Gardner, 986 F.2d 1521, 1530-31 (9th Cir. 1993) (finding that male guards’ 7 We could justify looking beyond the pleadings pat-down searches of female inmates violated the by converting the rule 12(b)(6) order into a Eighth Amendment); Johnson v. Phelan, 69 F.3d dismissal at summary judgment. Letcher v. Tur- 144, 152-53 (Posner, J., dissenting) (declaring ner, 968 F.2d 508, 510 (5th Cir. 1992). That is cross-sex monitoring a violation of the Eighth not necessary in this case. We look only to the Amendment). Oliver did not raise this argument in specific administrative directive in an effort to con- the district court, and he mentions the Eighth strue the complaint liberally. The complaint itself Amendment only once in his appellate brief. His is deficient. (continued...) 6 Supreme Court and Fifth Circuit precedent Comm’n v. Recile, 10 F.3d 1093, 1097 (5th establishes that any minimal invasion of pri- Cir. 1993). vacy is justified by the state’s interest in pro- moting security. In support of his equal A. protection claim, Oliver failed to offer the Oliver could claim a privacy right under necessary proof that male and female inmates either the Fourth Amendment (applied to the were similarly situated. states through the Fourteenth Amendment) or the Court’s substantive due process doctrine.10 The same standards for summary judgment In Bell, 441 U.S. at 558, the Court assumed bind us and the district court. Summary judg- arguendo that a prisoner might retain a Fourth ment is appropriate only if “the pleadings, de- Amendment right to privacy that could limit positions, answers to interrogatories, and ad- prison officials’ powers to conduct body cavity missions on file, together with the affidavits, if searches. In Hudson v. Palmer, 468 U.S. 517, any,” when viewed in the light most favorable 527 (1984), however, the Court held that a to the non-movant, “show that there is no prisoner lacks any Fourth Amendment privacy genuine issue as to any material fact.” rights that would protect him from searches of Anderson v. Liberty Lobby, Inc., 477 U.S. his cell. The Court explained that “[a] right of 242, 249-50 (1986). A dispute about a privacy in traditional Fourth Amendment terms material fact is “genuine” if the evidence is is fundamentally incompatible with the close such that a reasonable jury could return a and continual surveillance of inmates and their verdict for the non-moving party. Id. at 248. cells required to ensure institutional security In making its determination, the court must and internal order.” Id. Prisoners retain, at draw all justifiable inferences in favor of the best, a very minimal Fourth Amendment non-moving party. Id. at 255. Once the interest in privacy after incarceration. moving party has shown “that there is an ab- sence of evidence to support the non-moving The Fourteenth Amendment is an even party’s cause,” Celotex Corp. v. Catrett, 477 more problematic source for a right to bodily U.S. 317, 325 (1986), the non-movant must privacy. Courts should not reverse the come forward with “specific facts” showing a outcome of the Fourth Amendment analysis genuine factual issue for trial. FED. R. CIV. P. based on novel fundamental implied rights.11 56(e); Matsushita Elec. Indus. Corp. v. Zenith And the existing set of fundamental implied Radio Corp., 475 U.S. 574, 587 (1986). Con- clusional allegations and denials, speculation, 10 improbable inferences, unsubstantiated Baker v. McCollan, 443 U.S. 137, 140 assertions, and legalistic argumentation do not (1979) (stating that the first step in a § 1983 adequately substitute for specific facts showing analysis is to identify the specific constitutional a genuine issue for trial. Securities & Exch. right involved). 11 Graham v. Connor, 490 U.S. 386, 395 (1989) (stating that when the Fourth Amendment 9 (...continued) grants an explicit right to privacy, courts should decision to forego this argument is wise, given that not engage in substantive due process analysis); Al- we have refused to extend the Eighth Amendment bright v. Oliver, 510 U.S. 266, 273, (1994) to strip searches. Moore v. Carwell, 168 F.3d (plurality) (preferring specific rights to the vagaries 234, 237 (5th Cir. 1999). of substantive due process). 7 rightsSSmarriage, family procreation, and the right is minimal, at best, we proceed to the right to bodily integritySSdoes not include a next step of the due process analysis, balancing right to avoid exposure to members of the op- the intrusion against the state’s legitimate posite sex. Planned Parenthood v. Casey, 505 penological interests. U.S. 833, 847-49 (1992).12 We would have to expand the Supreme Court’s fundamental im- The Supreme Court has mandated a lower plied rights jurisprudence to create a right for standard of review for “prison regulations prisoners not to have members of the opposite claimed to inhibit the exercise of constitutional sex view them naked. rights.”14 We give great deference to prison administrators’ judgments regarding jail secur- Despite these barriers to finding any ity.15 The regulation need only be “reasonably constitutional right to bodily privacy, several related to legitimate penological interests.” courts of appeals, including this court, have Turner, 482 U.S. at 89. found that prisoners possess such a constitutional right.13 Even though any such Four factors determine whether there is a reasonable relation: First, the regulation must have a “valid, rational” connection to the gov- 12 Even if, arguendo, the right to bodily ernmental interest put forth to justify it. Id. at integrity provides protection against body cavity 89-90. Second, the court should consider searches, Oliver failed to present any summary whether the inmate has alternative methods for judgment evidence of specific, cross-sex body exercising that right. Id. at 90. Third, the cavity searches. court should consider the impact that 13 accommodation would have on other inmates All of the following cases support a limited or prison staff. Where the “ripple effect” is right to bodily privacy, but none of them explains its derivation from the Supreme Court’s Fourth or large, courts should have greater deference. Fourteenth Amendment jurisprudence: Moore, 168 Id. Finally, the existence of easy, rather than F.3d at 237 (holding that a female guard’s strip search of a male prisoner might violate the Fourth Amendment if male guards were available and 13 (...continued) security did not require an immediate search); “special sense of privacy in their genitals” justifies Hayes v. Marriott, 70 F.3d 1144, 1147-48 (10th restricting female prison guards’ surveillance of Cir. 1996) (holding that body cavity search of male male prisoners). Cf. Watt v. City of Richardson prisoner in front of female guards stated a claim Police Dep’t, 849 F.2d 195, 199 (5th Cir. 1988) for Fourth Amendment violation absent showing of (finding that strip search of arrestee based on security need); Fortner v. Thomas, 983 F.2d 1024, twenty-year-old minor drug offense violated the 1030 (11th Cir. 1993) (recognizing a constitutional Fourth Amendment). right to bodily privacy that might bar female prison guards from watching male inmates as they 14 O’Lone v. Estate of Shabazz, 482 U.S. 342, showered and used the toilet); Kent v. Johnson, 344 (1987) (First Amendment); Turner v. Safley, 821 F.2d 1220, 1226-27 (6th Cir. 1987) (refusing 482 U.S. 78, 89 (1987) (mail and marriage to dismiss complaint that stated that female prison regulations). guards routinely saw male prisoners naked, 15 showering, and using the toilet); Lee v. Downs, 641 O’Lone, 482 U.S. at 349; Turner, 482 U.S. F.2d 1117, 1119-20 (4th Cir. 1981) (stating that at 89; Elliot v. Lynn, 38 F.3d 188, 191 (5th Cir. (continued...) 1994). 8 hard, alternatives may demonstrate the inmate violence and sexual assaults. Dawson’s regulation or policy is an “exaggerated policy ensures that the largest number of response.” Id.16 personnel remains available to monitor these areas and prevent these threats. Second, CCA We twice have found that security concerns permitted inmates to shield themselves with can justify the strip search of a male inmate in newspapers and paper towels. Third, requiring front of female guards. In Letcher, 968 F.2d only male guards to supervise inmates at night at 510, we held that prison authorities and in the showers would have the ripple constitutionally strip searched an inmate effect of forcing Dawson to reassign a high during a lockdown following a food fight. percentage of its prison staff. Finally, Oliver Similarly, in Elliott, 38 F.3d at 191-92, an in- failed to identify an alternative that would cre- creased incidence of prison murders, suicides, ate only de minimis costs in terms of inmate stabbings, and cuttings justified a shakedown security or equal employment opportunities. that included mass strip searches in front of female employees. This court, in an unpublished but preceden- tial opinion,17 and several other courts of ap- In this case, the district court found that peals have reached the same conclusion security concerns of a different kind justify regarding cross-sex surveillance.18 Oliver has cross-sex surveillance. CCA presented evidence that security was a legitimate concern 17 at Dawson among male inmates because of Barnett v. Collins, 940 F.2d 1530 (5th Cir. their convictions for more severe and violent 1991) (table) (unpublished) (upholding use of fe- crimes; constant visual monitoring of all areas male guards in guard towers giving full view of male inmates taking showers). was necessary to maintain the security of the inmates and staff. Oliver did not challenge this 18 Johnson, 69 F.3d at 147 (Easterbrook, J.) evidence at summary judgment. (“If only men can monitor showers, then female guards are less useful to the prison; if female The four factors described in Turner lend guards can’t perform this task, the prison must support to this conclusion. First, the prison have more guards on hand to cover for them.”); officials’ policy of permitting all guards to Timm v. Gunter, 917 F.2d 1093, 1101-02 (8th Cir. monitor all inmates at all times increases the 1990) (explaining that constant visual surveillance overall level of surveillance. Bathrooms and by guards of both sexes is a reasonable and showers could serve as harbors for inmate-on- necessary measure to promote inmate security); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988) (stating that espisodic and casual observation of male prisoners by female guards is 16 The Court has distinguished this from a least- justified by security concerns); Grummet v. Rush- restrictive-alternatives test. Turner, 482 U.S. at 91 en, 779 F.2d 491, 496 (9th Cir. 1985) (stating that (stating that “if an inmate claimant can point to an “[t]o restrict female guards from . . . occasional alternative that fully accommodates the prisoner’s viewing of the inmates would necessitate a rights at de minimis cost to valid penological tremendous rearrangement of work schedules, and interests, a court may consider that as evidence”); possibly produce a risk to both internal security O’Lone, 482 U.S. at 350 (rejecting notion that needs and equal employment opportunities”). prison officials must refuse all possible alternatives). (continued...) 9 not provided sufficient summary judgment evi- applied uniquely to men. These facts certainly dence to create a fact issue about the violation satisfy Turner and O’Lone’s lenient of his constitutional right to privacy. requirement that prison officials’ regulations must be “reasonably related” to legitimate B. penological objectives.19 Oliver argues that the existence of privacy partitions in the female inmates’ showers and AFFIRMED.20 the absence of male guard surveillance prove that the state violated his equal protection rights. The district court correctly held that 19 Timm, 917 F.2d at 1103 (rejecting equal female and male inmates at Dawson are not protection claim for failing to require cross-sex similarly situated. monitoring of women prisoners because treating the sexes differently was justified by different To prove an equal protection violation on numbers of inmates, the severity of crimes, and the basis of sex, male prisoners must prove frequency of inmate violence). male and female prisoners are similarly 20 situated. Yates v. Stalder, 217 F.3d 332, 334 In its brief on appeal, CCA argues that Oliver (5th Cir. 2000) (citations omitted). Courts does not allege a physical injury within the purview should consider “the number of inmates of the PLRA, 42 U.S.C. § 1997e(e). We decline to housed in each facility, their average length of reach this issue. stay, their security levels, and the incidence of violence and victimhood.” Id. at 335. Applying the PLRA would raise difficult constitutional questions not previously addressed in this circuit. We have applied the PLRA’s damage At summary judgment, Oliver conceded: limits only to prisoners’ claims of cruel and un- (1) Dawson housed six times many more men usual punishment under the Eighth Amendment. In than women; (2) male transfer inmates were doing so, we have held that the PLRA’s physical convicted of violent crimes; female inmates injury test is coextensive with the Eighth were convicted of the lowest level of felony in Amendment’s physical injury test. Siglar v. High- Texas; and (3) male units had a higher tower, 112 F.3d 191, 193-94 (5th Cir. 1997). incidence of violent gang activity and sexual predation. All of the facts that justified round- We have not considered the application of the the-clock surveillance by guards of both sexes PLRA to constitutional violations usually unaccompanied by physical injury, such as First Amendment retaliation claims, privacy claims, and equal protection claims. The courts of appeals 18 (...continued) have reached different conclusions regarding Many courts have identified protecting female whether the PLRA constitutionally may eliminate prison guards’ constitutional and statutory rights to nominal and punitive damages for First equal employment opportunities as a legitimate Amendment and privacy violations. Compare, penological objective. E.g., Johnson, 69 F.3d at e.g., Davis v. District of Columbia, 158 F.3d 147-48; Timm, 917 F.2d at 1102; Forts v. Ward, 1342, 1348, 1349 (D.C. Cir. 1998) (holding that 621 F.2d 1210, 1217 (2d Cir. 1980). We do not PLRA could constitutionally bar recovering puni- need to reach the issue, because we conclude that tive damages for privacy rights violations but the policy furthers the jail’s interest in promoting reserving the question whether it bars nominal security. (continued...) 10 Judge Garza concurs in the judgment only. 20 (...continued) damages); with Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir. 2000) (concluding that PLRA can- not constitutionally bar recovering punitive or nominal damages in First Amendment retaliation claim); and Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999) (holding that PLRA cannot bar de- claratory relief or nominal damages for First Amendment violation). Oliver’s first amended complaint and appellate briefs plainly request punitive damages, so we would have to decide the constitutionality of ap- plying the PLRA. On this issue, we lack the ben- efit of helpful circuit precedent or thorough brief- ing. Although it is technically a statutory inter- pretation issue, its resolution depends on consti- tutional concerns, and resolving it would be much more difficult than are the constitutional issues addressed in part V. 11