Oliver v. Scott, et al

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.

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2
JERRY E. SMITH, Circuit Judge:
In this civil rights action brought pursuant
to 42 U.S.C. § 1983, state jail inmate Norman
Oliver challenges the practice of permitting fe-
male guards to monitor male inmates in
bathrooms and showers but not using male
guards to monitor female inmates under similar
circumstances. Agreeing with the district
court that there is no constitutional violation,
we affirm that court’s summary judgment.
I.
The Dawson State Jail Facility (“Dawson”)
is a correctional facility owned by the State of
Texas through the Texas Department of
Criminal Justice-State Jail Division (“TDCJ”).
Through August 1998, Corrections
Corporation of America (“CCA”), a private
corporation, operated Dawson under a
management contract with Dallas County,
which in turn contracted with TDCJ.
Management and Training Corporation
(“MTC”) assumed operation of the facility in
September 1998.
Dawson, a ten-story facility housing about
2,000 inmates, began operations in July 1997.
During its management, CCA housed inmates
on all floors except the first and second. Daw-
son had only male inmates from July to
November 1997, when female inmates began
arriving. From November 1997 through
August 1998, Dawson had about 250 females
and 1,750 males.
The females were on the ninth floor, and
the males were on the others. In the spring of
1998, at the direction of TDCJ, limited parti-
tions were added to the bathroom areas of the
ninth floor, where the females were housed;
there was no instruction to install partitions on
the male floors.
Oliver arrived in July 1997 as a post-
conviction transfer inmate, serving concurrent
ten- and nine-year sentences for robbery by
threats and robbery causing bodily harm. Be-
cause of overcrowding in TDCJ facilities, Oli-
ver had not been processed into one of
TDCJ’s Institutional Division facilities. Al-
though Dawson was constructed to incarcerate
state jail felons, a substantial number of male
inmates there in 1997-98 were transfer
inmates.
The status of transfer inmates is
considerably different from that of state jail
felons. Transfer inmates are awaiting transfer
from a county jail to an Institutional Division
facility; they are felons convicted of crimes
resulting in greater sentences and fines than
those imposed on state jail felons. Transfer
inmates at Dawson were housed separately
from state jail felons during CCA’s
management. No female transfer inmates were
housed there during CCA’s management; all
female inmates were state jail felons, and most
were non-violent offenders serving short
sentences for crimes such as hot check writing
and driving while intoxicated.
A few female guards, but mostly male, were
assigned to monitor the male housing areas;
this was necessary to staff all housing areas
adequately, for security reasons. Moreover,
prohibiting female officers on the male floors
would conflict with CCA’s equal employment
policies and practices, which prohibit sex
discrimination.
II.
Oliver sued state correctional officials
Wayne Scott, Gary Johnson, and Janice Wil-
son, and CCA and MTC, alleging violations of
his right to privacy, right to freedom from un-
reasonable search and seizure, and right to

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3
equal protection under the Fourth and
Fourteenth Amendments.1 Oliver complains
that female prison employees conducted strip
searches of male inmates and observed male
inmates showering and using the bathroom.
Oliver alleges that male prison employees did
not conduct strip searches of female inmates or
observe female inmates in the bathroom.
Dawson had showers and toilet partitions
that shielded female prisoners from view dur-
ing their use of the facilities but did not
provide the same privacy for male prisoners.
Female officers made visual checks of the
dorm areas, including these shower and
bathroom areas. Oliver claims that the
individual state defendants, as TDCJ
executives, promulgated the policies,
practices, and standards under which these
alleged constitutional violations occurred and
failed adequately to train and/or supervise their
employees regarding strip search procedures.
III.
The district court dismissed Oliver’s claims
against Scott and Johnson for failure to state a
claim upon which relief can be granted. See
FED. R. CIV. P. 12(b)(6). The court held that
Oliver’s transfer mooted his request for
injunctive relief and that ongoing judicial
supervision of a prisoner class action
precluded additional judicial oversight of strip
search procedures. The court held that the
Eleventh Amendment bars damage claims
against the officials in their official capacity
and that the vague allegations about strip
searches did not suffice to show individual
liability. Oliver’s claim against Wilson and
MTC was settled.
The district court also granted summary
judgment in favor of CCA, holding that Oliver
had failed to allege a specific unconstitutional
search and seizure; Oliver did not provide any
specific evidence of cross-sex strip searches.
The court ruled that the CCA’s interests in
preserving security and equal employment op-
portunities justified any privacy invasion
caused by cross-sex monitoring. The court
reasoned that differences in the dangerousness
of the male and female prisoners prevented Ol-
iver from showing that they were “similarly
situated” under the Equal Protection Clause.
Finally, the court held that the Prison
Litigation Reform Act (“PLRA”) barred
recovery, because Oliver had not demonstrated
a physical injury.
IV.
“We review the district court’s ruling under
[rule] 12(b)(6) de novo.” Shipp v. McMahon,
234 F.3d 907, 911 (5th Cir. 2000), cert.
denied, 121 S. Ct. 2193 (2001). When ruling
on a rule 12(b)(6) motion, the court must lib-
erally construe the complaint in favor of the
plaintiff and assume the truth of all pleaded
facts. Brown v. NationsBank Corp., 188 F.3d
579, 586 (5th Cir. 1999). “The court may
dismiss a claim when it is clear that the plaintiff
can prove no set of facts in support of his
claim that would entitle him to relief.” Jones
v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999). We must construe Oliver’s pro se brief
liberally in his favor. Haines v. Kerner, 404
U.S. 519, 520 (1972).
The generic pleading requirements of FED.
R. CIV. P. 8 go vern suits against individual
defendants in their official capacity. Anderson
v. Pasadena Indep. Sch. Dist., 184 F.3d 439,
1 On appeal, Oliver does not argue that cross-
sex surveillance or searches violate his right to be
free from unreasonable searches and seizures. He
uses the Fourth Amendment only as a source of
privacy rights.

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4
443 (5th Cir. 1999). Oliver need only provide
“‘a short and plain statement of the claim’ that
will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which
it rests.” Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168 (1993) (citation omitted).
Plaintiffs suing governmental officials in
their individual capacities, however, must al-
lege specific conduct giving rise to a
constitutional violation. Anderson, 184 F.3d
at 443. This standard requires more than
conclusional assertions: The plaintiff must
allege specific facts giving rise to a
constitutional violation. Baker v. Putnal, 75
F.3d 190, 194 (5th Cir. 1996).
A.
Oliver requested two injunctions: (1) one
banning opposite-sex strip searching in non-
exigent circumstances and in front of non-
security personnel; and (2) another requiring
the installation of privacy partitions in front of
shower doors and between toilets. The district
court refused to exercise jurisdiction over the
first request for injunctive relief, because
TDCJ’s strip search policies remained the
subject of ongoing supervision by another
federal district court. See Aranda v. Lynaugh,
No. H-89-277 (S.D. Tex.). Individual
prisoners cannot pursue suits for “equitable
relief within the subject matter of the class
action.” Gillespie v. Crawford, 858 F.2d
1101, 1102-03 (5th Cir. 1988) (en banc).
Claims for equitable relief can be made only
through the class representative. Long v.
Collins, 917 F.2d 3, 4-5 (5th Cir. 1990).
Even construing Oliver’s pro se brief lib-
erally, he does not raise this issue on appeal.
Because Oliver does not contest dismissal of
this claim, we need consider only his request
for an injunction requiring privacy partitions.
Even assuming, arguendo, that Oliver has
pleaded facts sufficient to support requiring
privacy partitions at Dawson, that request is
moot. The transfer of a prisoner out of an in-
stitution often will render his claims for
injunctive relief moot.2 Oliver, however,
argues that his alleged constitutional violations
are “capable of repetition yet evading
review.”3
Oliver must show either a “demonstrated
probability” or a “reasonable expectation” that
he would be transferred back to Dawson or
released and reincarcerated there. Murphy v.
Hunt, 455 U.S. 478, 482 (1982). At its most
lenient, the standard is not “mathematically
precise” and requires only a “reasonable like-
lihood” of repetition. Honig v. Doe, 484 U.S.
305, 318-19 (1988). Even under the most per-
missive interpretation, neither Oliver’s
complaint nor his appellate brief supports the
claim that the constitutional violation is
capable of repetition.
Oliver’s brief alleges that the TDCJ’s state-
wide policy of permitting cross-sex searches
and monitoring makes the privacy violations
2 Weinstein v. Bradford, 423 U.S. 147, 196
(1975) (per curiam) (plaintiff’s individual suit
challenging parole procedures mooted by release
absent “demonstrated probability” that he would
again be subject to parole board’s jurisdiction);
Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d
1078, 1081 (5th Cir. 1991) (per curiam) (holding
that prisoner transferred out of offending institution
could not state a claim for injunctive relief).
3 See Hardwick v. Brinson, 523 F.2d 798, 800
(5th Cir. 1975) (stating that possibility of transfer
back would make claim capable of repetition yet
evading review).

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5
capable of repetition. The complaint itself,
however, alleges, at most, facts sufficient only
to support a claim for constitutional violations
at Dawson. The complaint alleges that the
warden acted “pursuant to” TDCJ policies, but
it fails to identify any specific policy or to ex-
plain how those policies led to constitutional
violations.
Neither Oliver’s complaint nor his brief
cogently explains how these statewide policies
affect his current conditions of imprisonment.
As we discuss below, TDCJ’s policies are fa-
cially constitutional; Oliver’s factual
allegations challenge only their application.
Nor does Oliver purport to represent prisoners
or pretrial detainees still incarcerated at Daw-
son.4 The district court correctly found that
Oliver is not likely to suffer from these alleged
constitutional violations again.
Second, Oliver’s complaint requests
statewide relief, namely that all Texas inmate
facilities provide shower doors and toilet
partitions. That claim fails for the same reason
that the constitutional infractions at Dawson
are not capable of repetition yet evading re-
view. The complaint does not identify specific
unconstitutional state policies or their
application to other institutions; it does not
plead facts that would prove male and female
inmates are similarly situated. As explained in
part IV.B, the only statewide policy identified
by either party passes constitutional muster.
B.
Oliver also sought damages against Scott
and Johnson in their official and individual
capacities. The district court held that the
Eleventh Amendment bars Oliver’s suit for
damages against officials in their official
capacity. We twice have held that the
Eleventh Amendment bars recovering § 1983
money damages from TDCJ officers in their
official capacity.5
Oliver contends that the officials should be
individually liable for strip searches and cross-
sex monitoring “pursuant to” TDCJ policies.
Oliver must satisfy a heightened pleading
standard to state a claim against Scott and
Johnson in their individual capacities. Baker,
75 F.3d at 194. Section 1983 does not create
supervisory or respondeat superior liability.6
The individual officials may be liable only for
implementing a policy that is “itself [ ] a repu-
diation of constitutional rights” and “the mov-
ing force of the constitutional violation.”
Grandstaff v. City of Borger, 767 F.2d 161,
169, 170 (5th Cir. 1985). Oliver’s complaint
fails to identify specific policies or to explain
how they permitted or possibly encouraged
cross-sex strip searches and monitoring. He
4 The Supreme Court has applied a more lenient
standard where the named representatives’ claims
are mooted but the class will suffer repeated
constitutional violations without judicial
intervention. Then, the class members’ live claims
can justify exercising Article III jurisdiction. E.g.,
Bell v. Woolfish, 441 U.S. 520, 527 n.5 (1979).
5 Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.
1998) (extending Eleventh Amendment to TDCJ);
Aguilar v. TDCJ, 160 F.3d 1052, 1054 (5th Cir.
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
of government officials, not the acts of
subordinates, will give rise to individual liability
under § 1983.”); Thompkins v. Belt, 828 F.2d 298,
303 (5th Cir. 1987) (“Under section 1983,
supervisory officials are not liable for the actions
of subordinates on any theory of vicarious
liability.”).

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6
must plead such specific facts to survive a rule
12(b)(6) motion to dismiss claims against
Scott and Johnson in their individual
capacities.
The only policy that the parties identified at
any point in the litigation is TDCJ
Administrative Directive 3.22, which governs
strip, pat-down, and visual searches.7 The
directive mandates “[w]hen possible staff of
the same gender” should perform strip
searches. Only the warden can approve cross-
sex strip searches under “extraordinary
circumstances.”
Even if, arguendo, Wilson, the warden at
Dawson, approved cross-sex strip searches
absent extraordinary circumstances and there-
bySSagain arguendoSSviolated Oliver’s right
to privacy or equal protection, see Bell, 441
U.S. at 558-60 (upholding strip searches as
constitutional under a balancing test), the ad-
ministrative directive narrowly cabins the
scope of cross-sex strip searches and delegates
the decision to the warden. Scott and Johnson
cannot be held vicariously liable for Wilson’s
actions, and Oliver cannot credibly allege that
the policy delegating the decision violates a
constitutional right.
The administrative directive also states that
prison guards of the same sex should perform
visual and pat-down searches “when possible”
or unless “circumstances dictate” otherwise.
Once again, this policy does not cause a
constitutional violation.
By delegating the decision to lower
officers, t he policy allows for the possibility
that a constitutional violation might occur, but
it imposes no liability on the policymaker. Oli-
ver might allege specific facts that would make
lower-level officers liable for any un-
constitutional application of the policy; the
policy itself, however, is constitutional. The
district court properly dismissed the complaint
against Scott and Johnson for failure to allege
an unconstitutional policy.
V.
Oliver argued that CCA had violated his
privacy rights by permitting female guards to
conduct surveillance of male inmates in
showers and bathrooms and by failing to install
privacy partitions.8 Oliver further contended
that because CCA took these measures to
protect the privacy of female inmates, CCA
violated his right to equal protection.9
7 We could justify looking beyond the pleadings
by converting the rule 12(b)(6) order into a
dismissal at summary judgment. Letcher v. Tur-
ner, 968 F.2d 508, 510 (5th Cir. 1992). That is
not necessary in this case. We look only to the
specific administrative directive in an effort to con-
strue the complaint liberally. The complaint itself
is deficient.
8 Because CCA no longer operates Dawson, and
Oliver does not allege that CCA controls the
privacy policies at other state institutions, only
Oliver’s request for damages remains pending
against CCA.
9 Some courts have held that cross-sex searches
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’
pat-down searches of female inmates violated the
Eighth Amendment); Johnson v. Phelan, 69 F.3d
144, 152-53 (Posner, J., dissenting) (declaring
cross-sex monitoring a violation of the Eighth
Amendment). Oliver did not raise this argument in
the district court, and he mentions the Eighth
Amendment only once in his appellate brief. His
(continued...)

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7
Supreme Court and Fifth Circuit precedent
establishes that any minimal invasion of pri-
vacy is justified by the state’s interest in pro-
moting security. In support of his equal
protection claim, Oliver failed to offer the
necessary proof that male and female inmates
were similarly situated.
The same standards for summary judgment
bind us and the district court. Summary judg-
ment is appropriate only if “the pleadings, de-
positions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if
any,” when viewed in the light most favorable
to the non-movant, “show that there is no
genuine issue as to any material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable jury could return a
verdict for the non-moving party. Id. at 248.
In making its determination, the court must
draw all justifiable inferences in favor of the
non-moving party. Id. at 255. Once the
moving party has shown “that there is an ab-
sence of evidence to support the non-moving
party’s cause,” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986), the non-movant must
come forward with “specific facts” showing a
genuine factual issue for trial. FED. R. CIV. P.
56(e); Matsushita Elec. Indus. Corp. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Con-
clusional allegations and denials, speculation,
improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not
adequately substitute for specific facts showing
a genuine issue for trial. Securities & Exch.
Comm’n v. Recile, 10 F.3d 1093, 1097 (5th
Cir. 1993).
A.
Oliver could claim a privacy right under
either the Fourth Amendment (applied to the
states through the Fourteenth Amendment) or
the Court’s substantive due process doctrine.10
In Bell, 441 U.S. at 558, the Court assumed
arguendo that a prisoner might retain a Fourth
Amendment right to privacy that could limit
prison officials’ powers to conduct body cavity
searches. In Hudson v. Palmer, 468 U.S. 517,
527 (1984), however, the Court held that a
prisoner lacks any Fourth Amendment privacy
rights that would protect him from searches of
his cell. The Court explained that “[a] right of
privacy in traditional Fourth Amendment terms
is fundamentally incompatible with the close
and continual surveillance of inmates and their
cells required to ensure institutional security
and internal order.” Id. Prisoners retain, at
best, a very minimal Fourth Amendment
interest in privacy after incarceration.
The Fourteenth Amendment is an even
more problematic source for a right to bodily
privacy. Courts should not reverse the
outcome of the Fourth Amendment analysis
based on novel fundamental implied rights.11
And the existing set of fundamental implied
9(...continued)
decision to forego this argument is wise, given that
we have refused to extend the Eighth Amendment
to strip searches. Moore v. Carwell, 168 F.3d
234, 237 (5th Cir. 1999).
10 Baker v. McCollan, 443 U.S. 137, 140
(1979) (stating that the first step in a § 1983
analysis is to identify the specific constitutional
right involved).
11 Graham v. Connor, 490 U.S. 386, 395
(1989) (stating that when the Fourth Amendment
grants an explicit right to privacy, courts should
not engage in substantive due process analysis); Al-
bright v. Oliver, 510 U.S. 266, 273, (1994)
(plurality) (preferring specific rights to the vagaries
of substantive due process).

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rightsSSmarriage, family procreation, and the
right to bodily integritySSdoes not include a
right to avoid exposure to members of the op-
posite sex. Planned Parenthood v. Casey, 505
U.S. 833, 847-49 (1992).12 We would have to
expand the Supreme Court’s fundamental im-
plied rights jurisprudence to create a right for
prisoners not to have members of the opposite
sex view them naked.
Despite these barriers to finding any
constitutional right to bodily privacy, several
courts of appeals, including this court, have
found that prisoners possess such a
constitutional right.13 Even though any such
right is minimal, at best, we proceed to the
next step of the due process analysis, balancing
the intrusion against the state’s legitimate
penological interests.
The Supreme Court has mandated a lower
standard of review for “prison regulations
claimed to inhibit the exercise of constitutional
rights.”14 We give great deference to prison
administrators’ judgments regarding jail secur-
ity.15 The regulation need only be “reasonably
related to legitimate penological interests.”
Turner, 482 U.S. at 89.
Four factors determine whether there is a
reasonable relation: First, the regulation must
have a “valid, rational” connection to the gov-
ernmental interest put forth to justify it. Id. at
89-90. Second, the court should consider
whether the inmate has alternative methods for
exercising that right. Id. at 90. Third, the
court should consider the impact that
accommodation would have on other inmates
or prison staff. Where the “ripple effect” is
large, courts should have greater deference.
Id. Finally, the existence of easy, rather than
12 Even if, arguendo, the right to bodily
integrity provides protection against body cavity
searches, Oliver failed to present any summary
judgment evidence of specific, cross-sex body
cavity searches.
13 All of the following cases support a limited
right to bodily privacy, but none of them explains
its derivation from the Supreme Court’s Fourth or
Fourteenth Amendment jurisprudence: Moore, 168
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
security did not require an immediate search);
Hayes v. Marriott, 70 F.3d 1144, 1147-48 (10th
Cir. 1996) (holding that body cavity search of male
prisoner in front of female guards stated a claim
for Fourth Amendment violation absent showing of
security need); Fortner v. Thomas, 983 F.2d 1024,
1030 (11th Cir. 1993) (recognizing a constitutional
right to bodily privacy that might bar female prison
guards from watching male inmates as they
showered and used the toilet); Kent v. Johnson,
821 F.2d 1220, 1226-27 (6th Cir. 1987) (refusing
to dismiss complaint that stated that female prison
guards routinely saw male prisoners naked,
showering, and using the toilet); Lee v. Downs, 641
F.2d 1117, 1119-20 (4th Cir. 1981) (stating that
(continued...)
13(...continued)
“special sense of privacy in their genitals” justifies
restricting female prison guards’ surveillance of
male prisoners). Cf. Watt v. City of Richardson
Police Dep’t, 849 F.2d 195, 199 (5th Cir. 1988)
(finding that strip search of arrestee based on
twenty-year-old minor drug offense violated the
Fourth Amendment).
14 O’Lone v. Estate of Shabazz, 482 U.S. 342,
344 (1987) (First Amendment); Turner v. Safley,
482 U.S. 78, 89 (1987) (mail and marriage
regulations).
15 O’Lone, 482 U.S. at 349; Turner, 482 U.S.
at 89; Elliot v. Lynn, 38 F.3d 188, 191 (5th Cir.
1994).

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9
hard, alternatives may demonstrate the
regulation or policy is an “exaggerated
response.” Id.16
We twice have found that security concerns
can justify the strip search of a male inmate in
front of female guards. In Letcher, 968 F.2d
at 510, we held that prison authorities
constitutionally strip searched an inmate
during a lockdown following a food fight.
Similarly, in Elliott, 38 F.3d at 191-92, an in-
creased incidence of prison murders, suicides,
stabbings, and cuttings justified a shakedown
that included mass strip searches in front of
female employees.
In this case, the district court found that
security concerns of a different kind justify
cross-sex surveillance. CCA presented
evidence that security was a legitimate concern
at Dawson among male inmates because of
their convictions for more severe and violent
crimes; constant visual monitoring of all areas
was necessary to maintain the security of the
inmates and staff. Oliver did not challenge this
evidence at summary judgment.
The four factors described in Turner lend
support to this conclusion. First, the prison
officials’ policy of permitting all guards to
monitor all inmates at all times increases the
overall level of surveillance. Bathrooms and
showers could serve as harbors for inmate-on-
inmate violence and sexual assaults. Dawson’s
policy ensures that the largest number of
personnel remains available to monitor these
areas and prevent these threats. Second, CCA
permitted inmates to shield themselves with
newspapers and paper towels. Third, requiring
only male guards to supervise inmates at night
and in the showers would have the ripple
effect of forcing Dawson to reassign a high
percentage of its prison staff. Finally, Oliver
failed to identify an alternative that would cre-
ate only de minimis costs in terms of inmate
security or equal employment opportunities.
This court, in an unpublished but preceden-
tial opinion,17 and several other courts of ap-
peals have reached the same conclusion
regarding cross-sex surveillance.18 Oliver has
16 The Court has distinguished this from a least-
restrictive-alternatives test. Turner, 482 U.S. at 91
(stating that “if an inmate claimant can point to an
alternative that fully accommodates the prisoner’s
rights at de minimis cost to valid penological
interests, a court may consider that as evidence”);
O’Lone, 482 U.S. at 350 (rejecting notion that
prison officials must refuse all possible
alternatives).
17 Barnett v. Collins, 940 F.2d 1530 (5th Cir.
1991) (table) (unpublished) (upholding use of fe-
male guards in guard towers giving full view of
male inmates taking showers).
18 Johnson, 69 F.3d at 147 (Easterbrook, J.)
(“If only men can monitor showers, then female
guards are less useful to the prison; if female
guards can’t perform this task, the prison must
have more guards on hand to cover for them.”);
Timm v. Gunter, 917 F.2d 1093, 1101-02 (8th Cir.
1990) (explaining that constant visual surveillance
by guards of both sexes is a reasonable and
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
justified by security concerns); Grummet v. Rush-
en, 779 F.2d 491, 496 (9th Cir. 1985) (stating that
“[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”).
(continued...)

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10
not provided sufficient summary judgment evi-
dence to create a fact issue about the violation
of his constitutional right to privacy.
B.
Oliver argues that the existence of privacy
partitions in the female inmates’ showers and
the absence of male guard surveillance prove
that the state violated his equal protection
rights. The district court correctly held that
female and male inmates at Dawson are not
similarly situated.
To prove an equal protection violation on
the basis of sex, male prisoners must prove
male and female prisoners are similarly
situated. Yates v. Stalder, 217 F.3d 332, 334
(5th Cir. 2000) (citations omitted). Courts
should consider “the number of inmates
housed in each facility, their average length of
stay, their security levels, and the incidence of
violence and victimhood.” Id. at 335.
At summary judgment, Oliver conceded:
(1) Dawson housed six times many more men
than women; (2) male transfer inmates were
convicted of violent crimes; female inmates
were convicted of the lowest level of felony in
Texas; and (3) male units had a higher
incidence of violent gang activity and sexual
predation. All of the facts that justified round-
the-clock surveillance by guards of both sexes
applied uniquely to men. These facts certainly
satisfy Turner and O’Lone’s lenient
requirement that prison officials’ regulations
must be “reasonably related” to legitimate
penological objectives.19
AFFIRMED.20
18(...continued)
Many courts have identified protecting female
prison guards’ constitutional and statutory rights to
equal employment opportunities as a legitimate
penological objective. E.g., Johnson, 69 F.3d at
147-48; Timm, 917 F.2d at 1102; Forts v. Ward,
621 F.2d 1210, 1217 (2d Cir. 1980). We do not
need to reach the issue, because we conclude that
the policy furthers the jail’s interest in promoting
security.
19 Timm, 917 F.2d at 1103 (rejecting equal
protection claim for failing to require cross-sex
monitoring of women prisoners because treating
the sexes differently was justified by different
numbers of inmates, the severity of crimes, and
frequency of inmate violence).
20 In its brief on appeal, CCA argues that Oliver
does not allege a physical injury within the purview
of the PLRA, 42 U.S.C. § 1997e(e). We decline to
reach this issue.
Applying the PLRA would raise difficult
constitutional questions not previously addressed in
this circuit. We have applied the PLRA’s damage
limits only to prisoners’ claims of cruel and un-
usual punishment under the Eighth Amendment. In
doing so, we have held that the PLRA’s physical
injury test is coextensive with the Eighth
Amendment’s physical injury test. Siglar v. High-
tower, 112 F.3d 191, 193-94 (5th Cir. 1997).
We have not considered the application of the
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
have reached different conclusions regarding
whether the PLRA constitutionally may eliminate
nominal and punitive damages for First
Amendment and privacy violations. Compare,
e.g., Davis v. District of Columbia, 158 F.3d
1342, 1348, 1349 (D.C. Cir. 1998) (holding that
PLRA could constitutionally bar recovering puni-
tive damages for privacy rights violations but
reserving the question whether it bars nominal
(continued...)

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11
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.

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