United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
2d 1024
24 Fed.R.Serv.3d 1271
PROCEDURAL BACKGROUND
2
The appellants, male inmates at Georgia State Prison, appeal the dismissal of
their 42 U.S.C. 1983 action, alleging that the appellees, several correctional
officials, violated their constitutional rights of privacy and due process. For the
alleged violations of their constitutional right of privacy, the appellants seek
monetary damages and injunctive relief prohibiting female correctional officers
from assignments that allow the officers to view the appellants nude in their
living quarters, including their use of the showers and the toilet. The appellants
also seek monetary and injunctive relief for the alleged violations of their rights
to due process relating to disciplinary proceedings that occur when the female
correctional officers charge them with indecent exposure, obscene acts, and
insubordination.
On October 20, 1989, the appellees filed a motion to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(a), asserting qualified immunity. On November 14,
1989, the appellants filed a first amended complaint in response to the
appellees' motion to dismiss, seeking to add two disciplinary hearing officers as
"key players" in the violation of their due process rights. On September 14,
1990, the district court adopted the report and recommendation of a magistrate
judge, and dismissed the appellants' right to privacy claims on the grounds of
qualified immunity and the due process claims based on the consent orders
entered in Guthrie v. Evans.
In their complaint, the appellants claim that this controversy began anew when
prison authorities began assigning female correctional officers to duties in the
living quarters of male inmates. The appellants claim that the female officers
act unprofessionally when they view nude male inmates walking around in
undershorts, showering, and using the toilet. The appellants claim that the
female officers flirt, seduce, solicit, and aroused them to masturbate and
otherwise exhibit their genitals for the female officers' viewing. The appellants
also claim that the female officers file false disciplinary reports for obscene acts
and insubordination in order to avoid reprimand when other prison authorities
discover them engaged in such unprofessional activity. The appellants describe
the relevant facilities in their living quarters at the Georgia State Prison. The
appellants claim that the female officers file the disciplinary reports after
spying on them through a one-inch crack in their cell doors, or after looking at
them in the shower through a five by ten-inch window on the shower door.
In this complaint, the appellants also complain that the appellees have violated
Policy Statement 590.1, which governs inmate discipline. The appellants claim
that disciplinary officers improperly punished them with severe isolation and
The appellants contend that the district court erred in denying their November
14, 1989 amendment to the complaint adding the disciplinary hearing officers
as additional defendants. The appellants argue that the district court committed
clear error in denying their right to amend their complaint at least once as a
matter of course before the appellees filed a responsive pleading. The
appellants also contend that the district court dismissed their complaint
improperly based on a finding that the appellees are entitled to qualified
immunity. The appellants argue that the district court erred in determining that
the female officers did not violate a clearly established right, because the
generalized constitutional right to privacy was clearly established at the time. In
addition, the appellants contend that the district court erred in dismissing their
due process claims based on the consent orders entered in Guthrie. The
appellants argue that their complaint seeks both injunctive relief and monetary
damages which makes a contempt proceeding under Guthrie an inadequate
remedy for their claims.
The appellees respond that the district court properly denied the appellants'
motion to amend because their motion to dismiss constituted a responsive
pleading within the meaning of rule 15(a); and also contend that the district
court properly concluded that qualified immunity shields them from the
appellants' right to privacy claims, and that the due process claims are
precluded under Guthrie. We address each of these issues separately.
DISCUSSION
8
This court must review de novo a district court's order dismissing a complaint,
accepting all allegations in the complaint as true and construing the facts in a
light favorable to the plaintiff. Executive 100, Inc. v. Martin County, 922 F.2d
1536, 1539 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 55, 116 L.Ed.2d 32
(1991).
I. PRISONERS' RETAINED PRIVACY RIGHTS
9
We first note that generally, the existence of an affirmative defense will not
support a rule 12(b)(6) motion to dismiss for failure to state a claim. A district
court, however, may dismiss a complaint on a rule 12(b)(6) motion "when its
own allegations indicate the existence of an affirmative defense, so long as the
defense clearly appears on the face of the complaint." Quiller v. Barclays
American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476
U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986). In considering a
defendant's motion to dismiss based on qualified immunity, the district court
must examine the complaint to determine "whether, under the most favorable
version of the facts alleged, defendant's actions violate clearly established law."
Bennett v. Parker, 898 F.2d 1530, 1535 n. 2 (11th Cir.1990) (Tjoflat, C.J.,
concurring), cert. denied, --- U.S. ----, 111 S.Ct. 1003, 112 L.Ed.2d 1085
(1991). In this case, the district court granted the appellees' motion to dismiss
based on qualified immunity, after concluding that a prisoner's constitutional
right to bodily privacy is not a "clearly established right" in this circuit. As to
the appellants' claim for damages on the alleged privacy violations, we agree
that facts sufficient to give rise to a consideration of qualified immunity appears
on the face of the appellants' complaint.
10
right cannot, of itself, settle the law where the district court sits outside this
circuit).
11
In this case, the district court properly found that neither this court nor the
Supreme Court had recognized that a prisoner retains a constitutional right to
bodily privacy. See generally Harris v. Thigpen, 941 F.2d 1495, 1513 n. 26
(11th Cir.1991) (recognizing that prisoners retain certain fundamental rights of
privacy, even though the precise nature and scope of the privacy right is far
from settled).
12
13
We first note that the language that the district court relied on is mere dicta,
because the court in Muhammad reviewed only the district court's order
denying prison officials qualified immunity from personal liability in a
prisoner's section 1983 action. See Muhammad, 839 F.2d at 1423. In addition,
we are convinced that the language in Muhammad stands only for the
proposition that government officials may file an interlocutory appeal when a
trial court denies a defense of qualified immunity from civil damages liability.
For this proposition, the court in Muhammad appropriately cites Mitchell, 472
U.S. at 524, 105 S.Ct. at 2814, which addresses the issue of whether the denial
of qualified immunity from civil damages liability should be immediately
appealable as a collateral order because the denial would be effectively
unreviewable on appeal from a final judgment. See Mitchell, 472 U.S. at 519 n.
5, 523 n. 7, 524-26, 105 S.Ct. at 2812 n. 5, 2814 n. 7, 2814-16 (noting
specifically that the case does not involve a claim for injunctive relief, and also
noting the continued availability of declaratory or injunctive relief as deterrence
to the constitutional violations of a government official). Hence, we are
persuaded that the court in Muhammad did not depart from the settled
proposition that "immunity from damages does not ordinarily bar equitable
relief as well." Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n.
6, 43 L.Ed.2d 214 (1975).1 Accordingly, we hold that the district court erred in
dismissing the appellants' claims for injunctive relief based on qualified
immunity.
14
C. Because on remand the district court must consider the appellants' claim for
injunctive relief which raises an issue of first impression in this circuit, we now
set forth the appropriate standards for reviewing the appellants' claim for
injunctive relief based on alleged violations of their constitutional right to
bodily privacy.
15
16
In reviewing the appellants' claim for injunctive relief, the district court's first
inquiry must be whether prisoners retain the right to bodily privacy. It is clear
that prison inmates " 'retain certain fundamental rights of privacy.' " Harris, 941
F.2d at 1513 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 5 n. 2, 98 S.Ct.
2588, 2592 n. 2, 57 L.Ed.2d 553 (1978) and recognizing that "seropositive
prisoners enjoy some significant constitutionally protected privacy interests in
preventing the non-consensual disclosure of their HIV-positive diagnosis"). As
stated previously, this court has declined to define the precise parameters of a
prisoner's constitutional right to privacy. See generally Harris, 941 F.2d at 1513
n. 26. Although we continue to approach the scope of the privacy right on a
case-by-case basis, we now recognize that prisoners retain a constitutional right
to bodily privacy.
17
18
In determining the merits of the appellants' claim for injunctive relief against
prison officials for alleged violations of their constitutional right to bodily
privacy, the district court must apply the standard of review for evaluating
prisoners' constitutional claims which the Supreme Court articulated in Turner.
When a prison regulation or policy "impinges on inmates' constitutional rights,
the regulation is valid if it is reasonably related to legitimate penological
interests." Turner, 482 U.S. at 89, 107 S.Ct. at 2261. Based on the ruling in
Turner, this court in Harris identified the following four factors governing the
reasonableness review of prison regulations:
Harris, 941 F.2d at 1516 (quoting Turner, 482 U.S. at 89-91, 107 S.Ct. at 226163). We emphasize that the fourth Turner factor is not a "least restrictive
alternative" test, but rather it allows an inmate to "point to an alternative that
fully accommodates the prisoners' rights at de minimis cost to valid penalogical
interests" as evidence that a restriction is not reasonable. Turner, 482 U.S. at
90-91, 107 S.Ct. at 2262-63.
21
In sum, we affirm that part of the district court's order dismissing the
appellants' claim for monetary damages for violations of their right to privacy,
because the prisoners' constitutional right to bodily privacy was not clearly
established at the time, making the appellees immune for civil damages
liability. We reverse and remand that portion of the district court's order
dismissing the appellants' claim for injunctive relief, in light of our recognition
that prisoners do retain a limited constitutional right to bodily privacy.
Accordingly, we leave it for the district court to apply, in the first instance, the
Turner "reasonableness" test in determining whether injunctive relief is
appropriate for the alleged infringement of the appellants' constitutional rights
to bodily privacy.
II. DUE PROCESS CLAIMS
22
The district court dismissed the appellants' due process claims after finding that
their claims of unfair disciplinary procedures, including lack of proper notice,
admission of evidence, and excessive punishments, are matters properly
brought as a contempt action pursuant to the procedures set forth in Guthrie.
See Guthrie v. Evans, CV No. 3068 (S.D.Ga. July 19, 1978, August 4, 1978,
December 1, 1978) (orders approving consent decrees); see also Guthrie v.
Evans, 815 F.2d 626, 628-29 (11th Cir.1987) (holding that the district court
order approving the consent decree is a final judgment); Guthrie v. Evans, 93
F.R.D. 390 (S.D.Ga.1981) (overruling objections to a settlement of contempt
proceedings, which class counsel filed on June 17, 1981, seeking compliance
with the August 4, 1978 order approving a consent decree). In dismissing the
appellants' due process claims, the district court relied on this court's ruling in
Saleem v. Evans, 866 F.2d 1313 (11th Cir.1989), which held that Georgia
prison complaints that parallel those addressed in Guthrie may only be filed
through Guthrie class counsel. Saleem, 866 F.2d at 1314. Because we conclude
that the district court erred in relying on the ruling in Saleem, we reverse and
remand the district court's order dismissing the appellants' due process claims.
23
and injunctive relief); Bogard v. Cook, 586 F.2d 399, 408-09 (5th Cir.1978)
(recognizing that a prisoner class action does not bar an individual prisoner's
subsequent suit for damages, where the class representatives sought only
equitable relief, where prisoners had insufficient notice of their right to seek
individual monetary damages, and where joinder of all individual damage
claims would have made the class action unmanageable), cert. denied, 444 U.S.
883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).2
24
In contrast, the court in Saleem was not faced with a prisoner's claim for
monetary damages, as well as equitable relief addressed in Guthrie. See
Saleem, 866 F.2d at 1313-14 (involving a section 1983 action alleging
violations of prisoner's First and Fourteenth Amendment rights, and apparently
seeking only to be provided with a Muslim minister of the appropriate sect to
minister to the prisoner's religious needs). Because the class representatives in
Guthrie sought only injunctive relief for the alleged unconstitutional conditions
and practices of the Georgia prison system, the district court erred in dismissing
the appellants' complaint which included a claim for monetary damages. See
Spears, 859 F.2d at 855. Accordingly, we hold that the district court improperly
dismissed the appellants' complaint which seeks both injunctive relief and
monetary damages for alleged violations of their right to due process in prison
disciplinary proceedings.
25
We note that even though it was not appropriate for the district court to dismiss
the appellants' claims for monetary damages based on Guthrie, on remand, the
district court may properly consolidate the appellants' claims with the class
litigation, stay the appellants' action pending referral of their complaints to
class counsel, or transfer their case to the Guthrie court. See Herron, 693 F.2d
at 127 (recognizing that it might have been proper to consolidate the plaintiff's
claims for monetary damages with the class litigation or to stay the plaintiff's
action pending referral of his complaints to class counsel, but that dismissal
was not appropriate); 28 U.S.C. 1406(a) (authorizing a district court to
transfer a case to another division or district "in the interest of justice"); see also
Spears, 859 F.2d at 855 (recognizing that a transfer of a prisoner's claim for
monetary damages to the court considering the prisoner class action is
appropriate to avoid interference with the integrity of a consent order and also
overlap between the complaints of class counsel and the individual prisoner).
III. RIGHT TO AMEND
26
Having concluded that the appellants' due process claims are not precluded
under Guthrie, we hold that the district court erred in denying the appellants'
motion to amend their complaint adding the two disciplinary officers as
defendants. The appellees contend that their motion to dismiss was a responsive
pleading for purposes of rule 15(a). We disagree. It is well established in this
circuit that a motion to dismiss is not considered a responsive pleading for
purposes of rule 15(a). Driscoll v. Smith Barney, Harris, Upham & Co., 815
F.2d 655, 659 (11th Cir.1987), vacated in part on other grounds 484 U.S. 909,
108 S.Ct. 253, 98 L.Ed.2d 211 (1987), cert. denied in part 484 U.S. 914, 108
S.Ct. 261, 98 L.Ed.2d 218 (1987); Chilivis v. Securities & Exchange Comm'n,
673 F.2d 1205, 1209 (11th Cir.1982); McGruder v. Phelps, 608 F.2d 1023,
1025 (5th Cir.1979). Because the appellees had only filed a motion to dismiss,
not a responsive pleading, the appellants were entitled to amend their complaint
at least once as a matter of course at any time before a responsive pleading was
served. Fed.R.Civ.P. 15(a); McGruder, 608 F.2d at 1025. Accordingly, we
reverse the district court's denial of the appellants' motion to amend their
complaint adding the two disciplinary officers as defendants. As the action
proceeds on remand, the district court may, of course, entertain any appropriate
motion from the defendants regarding their presence in this case. We hold only
that the district court erred in denying the appellants' motion to amend their
complaint before the appellees filed a responsive pleading.
CONCLUSION
27
We affirm the order of the district court dismissing the appellants' claims for
monetary damages for alleged violations of their right to bodily privacy, based
on its correct conclusion that a prisoner's constitutional right to bodily privacy
was not clearly established at the time. We, however, reverse and remand the
district court's order dismissing the appellants' claims for injunctive relief based
on alleged violations of their constitutional rights to bodily privacy. We now
recognize that a prisoner retains a constitutional right to bodily privacy. On
remand, the district court must apply the "reasonableness" test articulated in
Turner in reviewing whether the prison regulations unreasonably impinge on
that constitutional right to bodily privacy.
28
In addition, we reverse and remand the district court's order dismissing the
appellants' due process claims, because dismissal of a prisoner's complaint
which includes a claim for monetary damages is inappropriate when dismissal
is based on a class action in which the class representatives sought only
declaratory and injunctive relief. On remand, the district court may dispose of
the appellants' due process claims with a transfer to the Guthrie court or other
appropriate means. We also reverse and remand the district court's denial of the
appellants' motion to amend their complaint adding the two disciplinary
officers as defendants.
29
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh
Circuit, sitting by designation
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)
(adopting as binding precedent all decisions of the former Fifth Circuit
rendered prior to October 1, 1981)