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Brazill v. Miners

United States District Court, M.D. Florida, Tampa Division

December 28, 2017

NATHANIEL R. BRAZILL, Plaintiff,
v.
JOHN MINERS, et al., Defendants.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge

         BEFORE 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 GRANTED.

         I. INTRODUCTION AND BACKGROUND

         Plaintiff, 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 monetary damages.

         Plaintiffs 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 (Id.).

         Defendants 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.

         II. FACTUAL BACKGROUND

         Plaintiff 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).

         In 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).

         The 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." (Id.).

         On May 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).

         On June 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. 4).[1] 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).

         Inmates 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).

         Female 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).[2]

         While 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 ...


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