United States District Court, M.D. Florida, Tampa Division
NATHANIEL R. BRAZILL, Plaintiff,
JOHN MINERS, et al., Defendants.
D. WHITTEMORE, United States District Judge
THE COURT is Defendants' Flores, Johnson,
Miners, Price, Series and Zeigler's, Corrected Motion for
Final Summary Judgment (Dkt 122), which Plaintiff opposes
(Dkt. 125). The Motion for Summary Judgment is
INTRODUCTION AND BACKGROUND
a Florida prisoner, filed a Second Amended Complaint (Dkt.
45) alleging that the Defendants violated his constitutional
right to bodily privacy. Specifically, he alleged that
Defendants (except Series) either implemented, adopted, or
enforced a policy at Hardee Correctional Institution (HCI)
requiring cell doors to be locked open between 4:30 a.m. and
10:00 p.m. As a result, staff and other prisoners could
observe Plaintiffs buttocks and genitalia while he used the
toilet in his cell. On several occasions, he saw female
officers looking at his genitalia while he was using the
toilet. Plaintiff alleged that Defendants Johnson and Series
violated his First Amendment rights when they retaliated
against him for filing grievances regarding the invasion of
privacy by transferring him to an "open bay dorm."
In his complaint, he requested declaratory relief and
request for declaratory relief and compensatory and punitive
damages were dismissed (see Dkts. 49, 69). His request for
nominal damages for violation of his right to bodily privacy
claim and retaliation claim was allowed to proceed
argue that they are entitled to summary judgment on these
claims because: 1) there is no evidence that Defendants
Johnson and Series retaliated against Plaintiff for filing
grievances; 2) Plaintiffs privacy rights were not violated;
and 3) they are entitled to qualified immunity. Plaintiff
concedes that Defendant Series is entitled to summary
judgment on his retaliation claim. He disagrees, however,
that Defendant Johnson is entitled to summary judgment on
that claim, and that Defendants are entitled to summary
judgment on his invasion of privacy claims.
was, at all times relevant to the Second Amended Complaint,
incarcerated at HCI. When he arrived at HCI in 2010, he was
assigned to a two-man cell in E-dorm that had a door which
swung open (Dkt. 125-1, p. I). The cell door had a plexiglass
window, and the toilet in the cell was located approximately
two feet from the door (Id.). Because at that time
cell doors were never locked in the open position, Plaintiff
would close the door when he used the toilet (Id.,
pp. 1-2). When the door was closed, Plaintiffs buttocks and
genitalia were "shielded" from the view of other
prisoners and female officers while he used the toilet
(Id., p. 2). However, if someone stood at the closed
door and looked through the window, that person could observe
Plaintiffs buttocks or genitalia while he was using the
toilet (Dkt. 122-4, pp. 167, 169).
2012, Randy Tifft, Regional Director of Region III (which
includes HCI) for the Florida Department of Corrections,
ordered "Region III institutions to lock the [cell]
doors open or lock them closed" during the day (Dkt.
122-2, pp. 1-2). Most institutions chose to lock cell doors
open "because locking them closed resulted in the need
for additional staff to open and close the doors during the
day as inmates entered and left their cells."
(Id., p. 1). Leaving cell doors open but unlocked
creates a security risk, since inmates may pull another
inmate or staff into a cell, lock the door, and assault that
person (Id., p. 2). Moreover, a cell door that is
locked closed makes it more difficult for staff to see the
assault in the cell and assist the victim (Id.).
Additionally, a cell door that is locked closed makes it more
difficult for staff to observe other illegal activities in
the cell, such as making and hiding weapons, drug use,
tattooing, and using cell phones (Id., pp. 2-3).
Locking cell doors open was "not a new practice."
(Id., p. 1). Tifft worked at many institutions where
the cell doors were locked open, including at HCI during the
1990s (Id., pp. 1-2). And Plaintiffs current
institution of incarceration, Charlotte Correctional
Institution, locks cell doors open (Dkt. 122-4, p. 81).
wardens and staff at the Region III institutions were
required to follow Tifft's order to either lock cell
doors open or closed (Dkt. 122-2, p. 3). Failure to obey the
order "would have been insubordination, a disciplinary
offense, which could result in termination."
9, 2012, Colonel J. Miller issued a memorandum to the inmate
population at HCI which stated, in pertinent part, that:
Slider Doors in the Open Population Butterfly Dorms (B, C, D,
E, F & G) will be secured in the open position at 8:00am
each day. The cell doors will remain in the open secure
position until the conclusion of the evening meal. At that
time the doors will be released.
(Dkt. 122-5, docket p. 6). On July 25, 2013, a memorandum
from Colonel John Miners, HCFs chief of security, was posted
in all the HCI dorms (Dkt. 125-1, docket pp. 4, 17). The
memorandum stated that slider cell doors in B, C, D, & G
dorms would be "secured in the open position"
between 5:30 a.m. and 10 p.m., except during formal counts,
and that swing cell doors would be "left in the open
position" during those times, except during formal
counts (Dkt. 125-1, docket p. 17). Despite the memorandum, no
officer in E-dorm made inmates keep their cell doors open
(Dkt. 125-1, docket p. 4).
20, 2014, Plaintiff was moved from E-dorm to B-dorm, which
has two-man cells with either "swing" doors or
"slider" doors (Id.). Plaintiffs cell had
a slider door (Id.)- In B-dorm, "the locked
open cell door policy for slider doors was religiously
enforced." (Id.). Only slider cell doors in
B-dorm were locked open (Id.), since swinging doors
cannot be locked open (Dkt. 122-4, pp. 75, 143). While
Plaintiff was housed in B-dorm, there were no "privacy
screens" available to use while inmates were using the
toilet in their cells (Dkt. 125-1, docket p.
On September 15, 2014, Johnson received an e-mail from Tifft
directing institutions to provide privacy screens no later
than October 31, 2014 (Dkts. 122-2, docket p. 18; 122-3, p.
3), and the screens became available at HCI on that date
(Dkt. 122-3, pp. 3-4). Plaintiff has never used a privacy
screen (Dkt. 122-4, p. 248), and even if he had, someone
could still look into his cell and see him on the toilet
(Id., pp. 249-50).
were prohibited from hanging items, such as sheets or
blankets, from the cell doors or ceilings to prevent others
from seeing inside their cells (Dkt. 122-3, p. 3). They were
authorized, however, to cover themselves with blankets,
sheets, towels, pillow cases, or clothes while using the
toilet in their ceil, and they could turn their backs to the
cell door while using the toilet (Id., p. 4; Dkt.
125-1, docket p. 28). At any given time, inmates have four
white t-shirts, four pairs of boxer shorts, six socks, three
blue shirts, three pairs of pants, one towel, one washcloth,
two sheets, one blanket, one pillowcase, a mattress, and a
pillow in their cells (Dkt. 122-3, pp. 171-72).
officers routinely worked in B-dorm (Dkt. 122-4, p. 162; Dkt.
125-1, docket p. 25). Plaintiff estimates that female
officers locked open cell doors in B-dorm approximately 20
percent of the time (Dkt 122-4, p. 162). On June 24, July 13,
July 24, August 17, August 24, September 18, September 27,
and October 2, 2014, while Plaintiffs cell door was locked
open, female officers looked at his genitals while he was
either standing and urinating or sitting and defecating in
the toilet in his cell (Dkt. 125-1, pp. 3-7). Although the
female officers themselves did not announce their presence
when entering B-dorm (id.), an announcement over the intercom
system was made to the inmates on each of those days
indicating that female officers may be in B-dorm during the
shift (Dkt. 122-5, docket pp. 3, 11-19).
in B-dorm, Plaintiff never attempted to place a towel,
blanket, sheet, shirt, etc., over his lap to cover his
genitals when using the toilet in his cell, and never saw
other inmates cover themselves in that manner (Dkt. 122-4,
pp. 172-74). He asserts that "[i]t was not possible for
[him] to shield [himself] with a blanket or sheet while
[urinating because he] was physically unable to do that[,
and]. . .[w]hen [he] defecated in the toilet. . .[he] could
not use a blanket or sheet to cover [himself] because policy
required that [his] bunk be made with the sheet and
blanket...." (Dkt. 125-1, p. 8). He also attests that on
November 18, 2017, he "did an experiment to see if a
towel over [his] lap would actually provide privacy
protection when using the toilet." (Id., p.
10). He noticed that his "buttock was still exposed[,
].. .it was not possible for [him] to clean [his] anus
without first removing the ...