Opinion
2:18-CV-01414-NR
08-05-2020
HEATH W. GRAY, Plaintiff, v. ROBERT GILMORE, MICHAEL ZAKEN, AND STEPHEN DURCO, Defendants.
ECF No. 98
REPORT AND RECOMMENDATION ON
MOTION FOR SUMMARY JUDGMENT
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons below, it is respectfully recommended that the Motion for Summary Judgment filed by Defendants Gilmore, Zaken, and Durco (ECF No. 98) be granted.
II. REPORT
A. Procedural History
Plaintiff Heath W. Gray (“Plaintiff”), pro se, is a prisoner at the SCI-Greene facility in Waynesburg, Pennsylvania. ECF No. 26. He initiated this action by the filing a Motion for Leave to Proceed in forma pauperis, and his Complaint was docketed on October 24, 2018. ECF No. 3. Plaintiff filed an Amended Complaint on January 18, 2019, where he claims that his Fourth Amendment right to bodily privacy is being violated by the digital recording and storing of Plaintiff's naked image and images of him using the bathroom. ECF No. 26, ¶¶ 11, 14. On February 9, 2019, Defendants filed a Motion to Dismiss for failure to state a claim on the Amended Complaint. ECF No. 28. The undersigned recommended denial of that motion in a Report and Recommendation (ECF No. 37) which was adopted by the District Court judge on August 30, 2019. ECF No. 44. The Court found that Defendants had not shown why Plaintiff's allegations that the storage of the video footage of prisoner strip searches for an indefinite time and the unrestricted access to them did not state a claim for which relief may be granted. ECF No. 37, pp. 7-8.
After a period of discovery, Defendants motioned for Summary Judgment, along with filing a brief in support, a Concise Statement of Facts, and an Appendix thereto on February 10, 2020. ECF Nos. 98-101. Plaintiff filed a Response to the Concise Statement of Facts and a Brief in Opposition on June 10, 2020. ECF Nos. 117-118. Defendants filed a Reply brief along with a supplemental Appendix on June 24, 2020. ECF Nos. 119-120. The Motion is ripe for review.
B. Legal Standard
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the pleadings, documents, electronically stored information, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (a) & (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v.Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:
[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial....[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Id. at 249-50 (internal citations omitted).
C. Statement of Facts
At SCI-Greene, where Plaintiff is incarcerated, it has long been the practice to strip search inmates coming to and leaving from the visiting room. ECF No. 100, ¶ 25. These strip searches are done according to the Department of Corrections (“DOC”) policy, and corrections staff do not physically touch inmates during the search. Id. The strip searches are done for security purposes, mainly to ensure that contraband is not passed to or from inmates during their contact visits in the visiting room. Id. ¶ 26.
Defendants aver that some of the previous incidents between corrections staff and inmates during these strip searches have required the corrections staff to use force against inmates. Id. ¶ 28. Inmates have also alleged excessive force or other abuse against corrections staff following these strip searches. Id. To address these issues, SCI-Greene determined to videotape these strip searches. Id. ¶ 29. Plaintiff disputes these statements because Defendants have not provided corroborating evidence. ECF No. 117, ¶ 14.
SCI-Greene installed a security cage in the strip search room at the same time it decided to install video cameras in the room. The cage provides a physical barrier between the inmates being searched and the corrections staff conducting the searches. Id. ¶ 30. The security cage is constructed with an opaque barrier across the front and side so that it blocks the genitals or private areas of the inmates from being seen on the video surveillance footage. Id. ¶ 31. Plaintiff disputes that this has always worked effectively to block out views of inmates' genitals and private areas. ECF No. 117, ¶ 16.
Defendants maintain that the video camera focused on the security cage is fixed and does not move, so it does not capture all areas of the strip search room, such as the toilet. ECF No. 100, ¶¶ 32, 33. The live video feed from the strip search room can be viewed only in the Security Office. Id. ¶ 34. The Security Office is located within the Deputy's area of the prison, access to which is limited. Id. ¶ 35. Only the Security Office staff and senior administration officials have access to the Security Office. Id. ¶ 36. Plaintiff disputes these statements. ECF No. 117, ¶ 18.
Defendants maintain that the live video feed is not transmitted to a dedicated video monitor and is not monitored at all times. ECF No. 100, ¶ 38. If the need arises, video from the feed may be called up to a monitor for viewing or to be preserved, with approval from an officer from the Security Office. Id. ¶ 41. Video from the strip search room is viewed and/or preserved only when there is a documented incident or allegations of abuse are made or there is other just cause to review and preserve the video. Id. ¶ 40. If no one reports an incident or makes a request to preserve, the video is usually overwritten within 30-45 days. Id. ¶ 42. Plaintiff disputes these statements. ECF No. 117, ¶ 24.
The updated Prison Rape Elimination Act (“PREA”) policy prohibits cross-gender strip searches except in exigent circumstances, but does not address whether cross-gender viewing of the surveillance footage is allowed. ECF No. 100, ¶¶ 43-44, 48. There are no female officers assigned to the Security Office, and Defendants are unaware of instances in which female officers viewed video footage from the visiting room strip searches. ECF No. 100, ¶¶ 50-51. Plaintiff disputes the fact that inmates' privacy concerns are handled appropriately, stating that there is video evidence which contradicts this statement. ECF No. 117, ¶ 31. Defendants admit that at times the barrier was not in place during strip searches, but this issue has been corrected and the staff has ensured that the barrier is in place for every strip search. ECF No. 120-1, ¶¶ 3739.
Plaintiff has not filed a grievance addressing the viewing of surveillance footage by female officers. ECF No. 100, ¶ 11. He has filed other inmate grievances unrelated to these issues while confined at SCI-Greene. Id. ¶ 13. Plaintiff claims that he submitted a PREA complaint on April 16, 2018, complaining of Voyeurism by Staff Member under DC-ADM 008. ECF No. 117, ¶ 4. “Voyeurism by Staff Member” is defined in the updated version (and previous versions) of DC-ADM 008 as:
Plaintiff claims in his response to Defendants' Statement of Facts that he made his PREA complaint to facility coordinator Karen Sokol. ECF No. 117 ¶ 4. Submitted as an exhibit along with Plaintiff's Motion to Compel Discovery is a letter from the office of the Attorney General's office responding to the Court's Case Management Order. ECF No. 61-2. Notably the letter states that there are no documents in the DOC's possession concerning the claim in Plaintiff's complaint, nor have there been a PREA complaint filed regarding the issues in his complaint. The next exhibit is a form DC-135A, “Inmate's Request to Staff Member, ” in which Plaintiff addresses Ms. Sokol and complains about “the practice of voyeurism” and not being comfortable with “images of my naked body being digitally stored.” ECF No. 61-3.
An invasion of privacy of an inmate for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his/her cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or a part of an inmate's naked body or of an inmate performing bodily functions.
ECF No. 101-1, p. 87. Plaintiff submits that he was under no obligation to file a grievance on this issue since any grievance he filed would have been forwarded to the Security Office as a PREA complaint anyway. Id. ¶¶ 5-6. Defendants state that they have no record of Plaintiff having submitted a PREA complaint in 2017, 2018, or 2019. ECF No. 100, ¶¶ 23-24.
D. Discussion
1. Exhaustion of Administrative Remedies
Defendants argue that they are entitled to Summary Judgment because Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act (“PLRA”). ECF No. 99, p. 4. Defendants maintain that, even if Plaintiff did file a PREA complaint- which they dispute- this would not satisfy the administrative exhaustion requirement. Id. pp. 6-7. The PREA policy set forth in the DC-ADM 008 provides the parameters for reporting incidents of sexual abuse or sexual harassment. Id. p. 7. However, Plaintiff is not pursuing a PREA claim of sexual abuse or sexual harassment, but rather is challenging the “digital recording and storing of Plaintiff's naked image, and images of him using the bathroom on a regular basis.” Id. p. 8 (quoting Amended Complaint at ECF No. 26). Defendants maintain that as Plaintiff's present action is brought under the Fourth Amendment and has no connection to any PREA-related claims, and Plaintiff has not filed a grievance relating to this claim, Plaintiff has not exhausted the claim in his Amended Complaint. Id. Furthermore, an administrative remedy was available under DC-ADM 804 and Plaintiff was familiar with the grievance system. Id. pp. 8-9.
In response, Plaintiff cites a Middle District opinion which held that grievances on sexual abuse must not be addressed through the grievance system. ECF No. 118, pp. 9-10 (citing Landau v. Lamas, 2018 U.S. Dist. LEXIS 176031 (M.D. Pa. Oct. 11, 2018)). Plaintiff cites the definition of Voyeurism by Staff Member under DC-ADM 008 and emphasizes the part that states “requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or a part of an inmate's naked body or of an inmate performing bodily functions.” Id. p. 11 (citing DC-ADM 008). Thus, Plaintiff argues, even if his claim is a Fourth Amendment claim, it has to do with invasion of his privacy, and still relates to the PREA issue. Id.
Defendants reply that by Plaintiff's own terms, his “one and only claim” as a matter of a Fourth Amendment violation is the “digital recording and storing of Plaintiff's naked image, and images of him using the bathroom on a regular basis.” ECF No. 119, p. 3 (quoting Amended Complaint at ECF No. 26). Plaintiff's complaint, Defendants assert, fails to reference voyeurism in any form. Id. Defendants thus maintain that Plaintiff has not exhausted his administrative remedies for the claim alleged in his Amended Complaint. Id.
Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”), 110 Stat. 132171, as amended, 42 U.S.C. § 1997e et seq., in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts. SeeWoodford v. Ngo, 548 U.S. 81, 84 (2006). As part of the PLRA, prisoners are required to first exhaust all administrative remedies as are available before bringing an action with respect to prison conditions pursuant to 42 U.S.C. § 1983, or any other federal law. See 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 524 U.S. 516, 524 (2002) (exhaustion also mandatory for Bivens suits brought by federal prisoners). Specifically, the act provides in pertinent part as follows:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Exhaustion is mandatory under this provision regardless of the type of relief sought and the type of relief available through administrative procedures. SeeBooth v.Churner, 532 U.S. 731, 741 (2001). In addition, the exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 532.
The PLRA also mandates that inmates “properly” exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjunctive system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. Importantly, “these procedural requirements are drawn from the policies of the prison in question rather than any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019); see also Drippe v. Tobelinksi, 604 F.3d 778, 781 (3d Cir. 2010) (“the determination whether a prisoner properly exhausted a claim is made by evaluating compliance with the prison's specific grievance procedures.”)
There is only a single qualifier to the PLRA's mandatory exhaustion requirement -administrative remedies must be “available.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016). The United States Supreme Court has identified “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. at 1859.
First . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end -with officers unable or consistently unwilling to provide any relief to aggrieved inmates. . .
Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can navigate it. . .
And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.
Id. at 1859-60. Additionally, the Third Circuit recently held that “as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prison has fully discharged the PLRA's exhaustion requirement.” Shifflett, 934 F.3d at 365. However, absent a situation where administrative remedies are not “available, ” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross, 136 S.Ct. at 1856.
The DOC has an official Inmate Grievance System that governs the grievance and appeals process in Pennsylvania correctional institutions. See 37 Pa. Code § 93.9. The Inmate Grievance System is set forth in DC-ADM 804 and “is intended to deal with a wide range of issues, procedures, or events that may be of concern to an inmate.” DC-ADM 804, Inmate Grievance System Procedures Manual. “An inmate who has been personally affected by a Department and/or facility action or policy will be permitted to submit a grievance.” DC-ADM 804 § 1(A)(13). However, “[i]t is not meant to address incidents of an urgent or emergency nature including allegations of sexual abuse[, ]” which must be addressed through DC-ADM 008, Prison Rape Elimination Act (PREA). Id. § 1(A)(2). Before filing a grievance in accordance with DC-ADM 804, inmates are “encouraged to attempt resolution of a concern informally by use of DC-135A, Inmate Request to Staff Member or direct conversation with the Unit Manager or Officer-in-Charge[.]” Id. § 1(A)(3). However, “failure to attempt to informally resolve a concern will not be cause to reject an official grievance.” Id. § 1(A)(4).
The DOC's policies and procedure manuals are found on the Pennsylvania Department of Corrections website at www.cor.pa.gov.
The Prison Rape Elimination Act (“PREA”), passed unanimously by Congress, explicitly seeks to “establish a zero tolerance standard for the incidence of prison rape in the prisons of the United States.” 34 U.S.C. § 30302(1). Rape is objectively intolerable, cruel, and unusual. But the statute defines “rape” so as to overtly encompass severe misconduct. See id. § 30309(9) (defining “rape” as “the carnal knowledge, oral sodomy, sexual assault with an object, or sexual fondling of a person, forcibly or against that person's will”).
Ricks v. Shover, 891 F.3d 468, 477-78 (3d Cir. 2018).
Section 3(A) of DC-ADM 008 sets the procedure for reporting a PREA-related complaint. An inmate who is the alleged victim of either 1) sexual abuse, 2) sexual harassment, 3) retaliation by other inmates or staff for reporting sexual abuse or harassment, and/or 4) staff neglect or violation of responsibilities that may have contributed to such incidents, shall report the abuse to a staff member as soon as possible. DC-ADM 008, § 3(B)(1). This report may be made to any staff member either verbally or in writing. Id. §§ 3(B)(2), 3(B)(3). Inmates may also submit a DC-135A form, or writing a report to the PREA coordinator. Id. § 3(B)(4). Inmate-on-inmate sexual harassment allegations should be reported through DC-ADM 804, the inmate Grievance System. Id. § 3(B)(5) (emphasis added). However,
Inmates shall not utilize the inmate grievance system to report sexual abuse or sexual harassment by a staff member or inmate-on-inmate sexual abuse if an inmate files a grievance related to staff-on-inmate sexual abuse/harassment or inmate-on-inmate sexual abuse, the Facility Grievance Coordinator shall reject the grievance and forward it to the facility security office and PREA Compliance Manager (PCM)/designee for tracking and investigation. The inmate shall be notified of this action. This will be considered an exhaustion of administrative remedies.
Id. § 3(B)(6) (emphasis added).
Plaintiff claims that he filed a PREA complaint. But the record suggests that Plaintiff either did not file a PREA complaint, or only filed a DC-135A Inmate Request to Staff Member, which was never treated as a PREA complaint. Still, Plaintiff did not properly exhaust his administrative remedies because his Fourth Amendment claim does not qualify as a PREA-related matter. Plaintiff states specifically in his Amended Complaint that his “one and only complaint is NOT challenging the prison officials [sic] right or authority to conduct strip searches. Rather it is the digital recording and storing of Plaintiff's naked image, and images of him using the bathroom on a regular basis.” ECF No. 26, ¶ 11. This is a complaint related to DOC policy and would fall under DC-ADM 804. See § 1(A)(13). Plaintiff has made no allegations that DC-ADM 804 was unavailable to him in any way. There is indication that he is familiar with the DC-ADM 804 grievance process as the record shows he has filed fifteen grievances from 2014 to 2019. ECF No. 101-4, p. 43. To classify a complaint about the policy of recording and storing video surveillance footage of strip searches as a PREA complaint would also misconstrue Congress' original purpose in passing PREA-to address the high incidence of rape and sexual abuse in prisons.
Furthermore, Plaintiff is mistaken in his claim that PREA policy supersedes the grievance policy. DC-ADM 008 is to be used to report incidents of staff-on-inmate sexual harassment or abuse, or inmate-on-inmate sexual abuse. Only a grievance alleging those circumstances would be forwarded to the PREA Compliance Manager and facility security office. Once again, going by Plaintiff's own Amended Complaint, a facility policy of recording and storing strip searches do not fall under any of those circumstances.
Plaintiff states that the PREA complaint he filed reports Voyeurism by a Staff Member. The crucial part of the definition of Voyeurism in DC ADM-008 is “an invasion of privacy of an inmate for reasons unrelated to official duties.” Here, Plaintiff's cause of action is a challenge to DOC policy. The video surveillance and recording of an inmate strip search is very much a part of official duties. The remedy is still to submit a grievance through DC-ADM 804 in order to begin the process of exhausting his administrative remedies pertaining to the claim at hand.
Therefore, the undersigned respectfully recommends that the Summary Judgment Motion on the basis of failure to exhaust administrative remedies be granted. However; even if Plaintiff had exhausted his administrative remedies under DC-ADM 804, the Summary Judgment Motion should be granted on the merits, which the Court will now address.
2. Fourth Amendment Rights
Defendants argue in the alternative that they are entitled to Summary Judgment on Plaintiff's Fourth Amendment claim because these searches are conducted in a reasonable manner. ECF No. 100. This Court found “that the mere recording of the strip searches is not a violation of Plaintiff's Fourth Amendment rights, ” but denied Defendants' Motion to Dismiss because “the storage of the video footage of prisoner strip searches for an indefinite time and the unrestricted access to them” may nevertheless state a claim. ECF No. 37, p. 8. Defendants refer to the sworn affidavit by Defendant Zaken, Deputy Superintendent for Facilities Management in charge of overall security functions and director of the uniformed corrections staff at SCI-Greene. ECF No. 100, p. 10. Defendant Zaken states that the cage where the strip searches are conducted have an opaque barrier across the front and sides of the cage, such that anyone viewing footage of the strip searches would be unable to see any exposed genitalia. ECF No. 100, p. 11. The camera is also fixed and does not capture all areas of the room. Id. p. 14. The part of the room with the toilet is not captured on camera. Id. Because of all the precautions taken above, Defendants maintain that cross-gender staff observing strip search footage is not an issue. Furthermore, the video footage can be viewed only from the Security Office, and access to the office is limited to Security Office staff and senior administration officials. Id. p. 16. The live video feed of the strip search cage is not transmitted to a dedicated video monitor and is not monitored at all times in the Security Office. Id. There are no female officers assigned to the Security Office at SCI-Greene, and consequently, there is no cross-gender viewing of the security footage. Id. p. 17. Finally, if no incidents are reported and/or no request to preserve the footage is made, the video is overwritten, typically within 30-45 days. Id. Thus, given the circumstances set up around the surveillance footage, Defendants argue that SCI-Greene's use of video camera to cover the visiting room strip searches is reasonable under the specific criteria established in Bell v. Wolfish. Id.
Plaintiff asserts that Summary Judgment is not warranted because there are genuine disputes of material fact. ECF No. 118. Plaintiff maintains that there is video footage where his genitals were in full view of the camera, and that Defendants repeatedly failed to make sure the door was closed during a search and failed to prevent filming of inmates' naked images. Id. ¶¶ 5, 11. He states that he has also witnessed female officers leaving the Security Office. Id. Plaintiff interprets Defendant Zaken's declaration, in which he stated that the video policy was enacted as a response to “unplanned use of force and allegations of abuse or misconduct against corrections staff, ” to mean that Defendants enacted the policy as an act of retaliation against the inmates for assaulting the staff or alleging misconduct. Id. ¶ 8. Plaintiff argues that if the live feed of the strip search surveillance is not transmitted to a monitor nor monitored at all times, this would contradict Defendants' claim that the video surveillance is meant to deter contraband smuggling or unplanned use of force. Id. ¶ 9.
According to Plaintiff, these disputed facts are material because the policy and practice of videoing strip search procedures is an “exaggerated response” to security considerations, based on Supreme Court Fourth Amendment law, and not reasonable. Id. ¶¶ 6-7.
In their Reply, Defendants maintain that Plaintiff's assertion that female officers have viewed the surveillance footage because he saw female officers leaving the Security Office is merely speculation, and cannot create a material dispute of fact with Defendant Zaken's declaration that he is unaware of any instances in which female officers viewed the strip search room footage. ECF No. 119, pp. 1-2. Defendants also assert that simply because the video feed is not monitored at all times does not undermine the stated reasons for the policy of recording the strip searches. Id. p. 2. The fact that both corrections staff and inmates are aware of the presence of the video camera reflects some deterrent effect. Id. Moreover, it is the availability of the video after the fact that would be useful in investigating claims of suspected contraband or allegations of inmate abuse. Id. pp. 2-3. Finally, the policy is currently implemented in a way as to avoid recording nude images, thus Plaintiff's concerns are no longer implicated. Id. p. 3.
The Fourth Amendment prohibits unreasonable searches and seizures. The Third Circuit has held that the Fourth Amendment grants prison inmates a limited right of bodily privacy, subject to reasonable intrusions required by the prison setting. Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016). It is well recognized that one of the consequences of entering a correctional facility is a diminished expectation of privacy. Florence v. Bd. of Chosen Freeholders of Cty. ofBurlington, 621 F.3d 296, 301 (3d Cir. 2010), aff'd, 566 U.S. 318, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (“‘The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security.'” [citation omitted]). Strip searches in a prison context may be conducted by prison officials without probable cause provided that the search is conducted in a reasonable manner. Bell v. Wolfish, 441 U.S. 520, 558 (1979) (holding that a prison rule requiring pretrial detainees to expose their body cavities for visual inspection as part of a strip search conducted after every contact visit with a person from outside the facility did not violate the Fourth Amendment). Reasonableness must be determined by balancing the need for the search against the invasion of personal rights, as revealed by four factors: “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. at 559. The Supreme Court further explicated this balancing of factors in Turner v. Safley, 482 U.S. 78 (1987), which the Tenth Circuit aptly summarized:
In Turner, the Supreme Court established a rational relationship test for assessing the constitutionality of prison regulations and practices. The Court held that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. at 2261. In applying this test, courts should consider the following factors: (1) whether there is a valid, rational connection between the prison regulation or practice and a legitimate governmental interest; (2) whether the regulation or practice allows inmates an alternative means of exercising the subject constitutional right; (3) the impact of accommodation of the asserted right on guards, other inmates, and the allocation of resources generally; and (4) the absence of ready alternatives to the regulation or practice. Id. at 89-91, 107 S.Ct. at 2261-63.Hayes v. Marriott, 70 F.3d 1144, 1146-47 (10th Cir. 1995).
The court in Watley v. Pike Cty., No. 3:17-CV-1539, 2018 WL 6018903, at *11 (M.D. Pa. Nov. 16, 2018) summarized the constitutionality of recording a prison strip search:
Using a camera to record a strip search in a prison does not, by itself, amount to a constitutional violation. See e.g., Davis v. Florence, 600 Fed.Appx. 26, 27 (2d Cir. 2015) (“the defendants showed that their practice of having a supervisory officer present during strip frisks and recording strip frisks via wallmounted video camera is reasonably related to the legitimate interests in both inmate and staff security at Sullivan.”); Henderson v. Oats, No. 17-155, 2018 WL 2054563, at *2 (W.D. Ky. May 2, 2018) (“the Court finds that Plaintiff's allegation that he was strip searched in a drunk tank with a camera fails to establish a violation of his constitutional rights.”); Bellamy v. City of New York, No. 16-772, 2017 WL 979064, at *3 (S.D.N.Y. Mar. 13, 2017) (“While he does mention that the search was conducted in a room with a security camera, there is no basis to find that the presence of a camera, by itself, was unreasonable. Indeed, the presence of cameras may assist prisoners by ensuring that government officials do not abuse prisoners while conducting searches.”); Sanchez v. Bauer, No. 14-CV-02804, 2015 WL 5026195, at *6 (D. Colo. Aug. 26, 2015) (finding allegation that the plaintiff was “video recorded” while he was strip searched failed to state a Fourth Amendment claim); Smith v. City of New York, No. 145934, 2015 WL 3929621, at *2 (S.D.N.Y. June 17, 2015) (“neither the presence of cameras nor the presence of other inmates and employees of a correctional facility makes an otherwise constitutional strip search unconstitutional.”); Peek v.City of New York, No. 13-4488, 2014 WL 4160229, at *2 (S.D.N.Y. Aug. 18, 2014) (“Without more, however, the presence of a camera at a strip search does not amount to a constitutional violation.”)Watley at *11; see also Fatir at *6; see alsoMichenfelder v. Sumner, 860 F.2d at 330, 333 (9th Cir. 19888) (no constitutional violation when search was conducted in hallway in view of other prisoners on the same tier and indirectly on video camera by opposite sex prison staff).
The Third Circuit, however, recognizes that there are limits to what the government can do in terms of its policies that implicate the Fourth Amendment: “We conclude that a right to privacy in one's own body, unlike a right to maintain private spaces for possessions, is not fundamentally inconsistent with imprisonment and is so fundamental that society would recognize it as reasonable even in the prison context.” Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016). In Parkell, the Third Circuit held that a thrice-daily policy of visual cavity searches of an inmate who was held in isolation without outside contact was an “exaggerated response” to security considerations and thus a violation of the Fourth Amendment. Id. at 330. See also Green v. Martin, 224 F.Supp.3d 154, 165 (D. Conn. 2016) (“Florence reiterates the principle that where there is substantial evidence that officials have exaggerated a response to a legitimate penological concern and their ‘policies are an unnecessary or unjustified response to problems of jail security,' the search may be unreasonable despite its initial justification. [citation omitted]).
This Court denied the Motion to Dismiss so more discovery could be done to further develop any facts that might establish a violation of Plaintiff's Fourth Amendment right. After reviewing the record, the Court finds that there is no genuine dispute that the material facts do not amount to a Fourth Amendment violation.
Defendant Zaken's sworn statement maintains that there is an opaque barrier across the cage where the searches are conducted so that someone viewing the footage of the search would be unable to see the private areas of the inmates' body; the surveillance camera focuses on the security cage and does not capture the part of the room where the toilet is; the live video feed is not transmitted to a dedicated monitor, and is only accessed when needed; the footage is only viewed in limited circumstances, such as when it is needed for an investigation, and is automatically overwritten typically after 30-45 days; the footage can be viewed only from the Security Office; only Security Office staff and senior administration officials have access to the Security Office; no female officers are currently assigned to the Security Office. Even in a case in which access to such surveillance footage is less restricted, a California court has found there to be no Fourth Amendment violation. SeeWeatherington v. Rios, No. 114CV00906-AWI-GSA-PC, 2017 WL 896302, at *5 (E.D. Cal. Mar. 6, 2017) (finding the plaintiff fails to state a Fourth Amendment claim against the defendants corrections officers for routinely watching the plaintiff and other inmates on a monitor during strip searches or while the inmates used the bathroom). Defendants have established that there is a set of restrictions which make the surveillance footage accessible only in limited circumstances.
Thus, under Bell, the scope of the recording policy is reasonably balanced by the restrictions placed upon it. The justification is also reasonable when examining the criteria under Turner. There is a valid, rational connection between the practice of storing the video surveillance footage and the legitimate government interests of preventing the smuggling of contraband and to be able to properly investigate allegations of abuse against the prison staff. See Garrett v. Thaler, 560 Fed.Appx. 375, 380-81 (5th Cir. 2014) (“...comprehensive surveillance by all guards increases the overall security of the prison, minimizing inmate-on-inmate violence and sexual assaults.”); see also Warren v. Gusman, No. CV 16-15046, 2017 WL 1373875, at *9 (E.D. La. Mar. 10, 2017), report and recommendation adopted, No. CV 16-15046, 2017 WL 1355709 (E.D. La. Apr. 13, 2017) (denying Motion for Preliminary Injunction because officials' actions of removing the partitions, videotaping the bathroom and reviewing the videotape as part of their job functions are reasonably related to the penological interest of maintaining security); see alsoKemp v. Black Hawk Cty. Jail, No. C15-2094-LRR, 2017 WL 581316, at *9 (N.D. Iowa Feb. 13, 2017), aff'd sub nom.Kemp v. Waterloo Police Dep't, 700 Fed.Appx. 558 (8th Cir. 2017) (granting the defendant corrections officers' Motion for Summary Judgment and finding that the defendants' reasonable use of video cameras promotes the security interests of jailers and inmates, despite the plaintiff's claim that the video monitor for surveillance cameras is on the desk in the correctional officers' station, and that other inmates could view the plaintiff using the toilet).
The Court also agrees that the prison has a legitimate government interest in investigating allegations of abuse by its staff against prisoners, and in investigating incidents of unplanned use of force. Having video surveillance footage on hand for a particular incident is rationally related to investigation needs, especially if the footage is deleted after 30-45 days. In fact, the Eastern District of Pennsylvania has found that the United States government has a common law duty to preserve video footage of an assault which led to an FTCA claim by a prisoner. Bistrian v. Levi, No. CV 08-3010, 2020 WL 1443735, at *8 (E.D. Pa. Mar. 24, 2020). Given the interest to both the government and the prisoner of having the footage preserved, this Court finds that the DOC's policy of recording strip searches of inmates after contact visits and storing the footage for a limited time to be a reasonable response to a legitimate government interest of maintaining security in the prison, and not a Fourth Amendment violation.
In some cases, such surveillance footage may even be crucial to a prisoner's liberty interests. SeeLennear v.Wilson, 937 F.3d 257 (4th Cir. 2019) (Inmates at risk of being deprived of a liberty interest, like good time credits, have a qualified right under the Due Process Clause to obtain and present prison video surveillance evidence).
The Court finds that Plaintiff has not met the burden of setting forth specific facts showing that there is a genuine issue for trial. Although Plaintiff asserts that he has video footage of when the door to the cage is not closed during searches and the inmate's private areas are visible, Defendant Zaken has acknowledged the lapses in implementing the video surveillance policy and that he has sought to correct them. Plaintiff's claim is based on the argument that it is the SCI Greene policy of recording and storing surveillance footage of the strip searches that constitutes a Fourth Amendment violation. Plaintiff has not provided any facts that are material and create a dispute to Defendants' statements about the policy itself. Furthermore, other District Courts have found no violation of the Fourth Amendment even with surveillance policies which are more lax than the one in question. See Warren v. Gusman and Kemp v. Black Hawk Cty. Jail, supra. Plaintiff states that he has witnessed female officers leaving the Security Office. The Court agrees with Defendants that Plaintiff has not raised a dispute of material fact as to whether female officers actually viewed any strip search footage, since the footage is not displayed on a monitor and Plaintiff's conclusion is merely speculation. See Warren v. Gusman at *9 (finding that Plaintiff's claim that any member of the public could view the prison's surveillance footage because he saw one guard view it on her phone constitutes only speculative harm). Furthermore, this Court has found that “the jail's interest in maintaining security via video surveillance, whether monitored by male or female correctional officers, outweighs Plaintiff's privacy interests.” Devenshire v. Schouppe, No. 2:15-CV-01197, 2016 WL 6988718, at *2 (W.D. Pa. Nov. 29, 2016). Thus, simply averring that he had witnessed female officers walk out of the security office does not set forth any material facts that could be of genuine dispute.
See alsoGarrett v. Thaler, 560 Fed.Appx. 375, 381 (5th Cir. 2014):
Moreover, requiring only male guards to supervise inmates or doing away with security cameras in the bathroom and dressing areas could require the prison to increase staffing or reassign a large percentage of its staff, or both, and there is no readily identifiable alternative that would impose only de minimis expenses in terms of inmate security, staffing costs, or equal employment opportunities. Id. We have subsequently affirmed this position. See, e.g., Mitchell v. Quarterman, 515 Fed.Appx. 244, 247 (5th Cir.2012) (unpublished), and several other circuits have likewise upheld cross-sex surveillance, see, e.g., Johnson v. Phelan, 69 F.3d 144, 147 (7th Cir.1995) (“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) (holding that female correctional officers' presence around naked prisoners did not violate their privacy rights).
Plaintiff also points to Defendants' responses in the interrogatories as showing a contradiction with their assertion that female officers are not assigned to the security office. Id. ¶¶ 19-21. The Court fails to understand how the gender issue relates to the statements “there is no rank specification for viewing cameras” and that the strip search cages are constructed such that “a person's genitalia cannot be seen by anyone watching the security system regardless of the rank or gender of that employee.” Id. ¶¶ 19-20. Plaintiff also provides the names of three female officers whom he avers are assigned to the Security Office, contrary to Defendants' statement that no female officers are assigned to the Security Office. Id. ¶ 21. Again, Plaintiff is asking the Court to speculate that these officers would have seen footage of his strip searches. Whether there are female officers assigned to the Security Office is disputed but Plaintiff has not shown how it is material.
Plaintiff disputes Defendants' statements about the surveillance camera being a fixed camera and does not cover the part of the room where the toilet is. Id. ¶ 17. Plaintiff maintains that Defendants provided the Court with “knowingly false information in Zaken's Declaration” regarding the camera, and refers the Court to “Appendix E.” Id. There is no document in the record that serves to dispute Defendants' specific statements about the camera.
As to Defendant's statements about the limited access to the Security Office, Plaintiff responds with “Plaintiff concedes that paragraphs 34-36 of Defendants' Concise Statement are material fact, but DENIES they are undisputed.” ECF No. 117 ¶ 18. He provides the same response for Paragraphs 38-42 of Defendants' Concise Statement of Facts, regarding how the footage is accessed, but also without further explanation. This alone is not sufficient to meet the burden of providing “specific facts showing that there is a genuine issue for trial.”
Therefore, it is respectfully recommended that the Motion for Summary Judgment be granted on the basis that Plaintiff has not established a Fourth Amendment violation.
III. CONCLUSION
For the reasons stated above, it is respectfully recommended that the Motion for Summary Judgment filed by Defendants Gilmore, Zaken, and Durco (ECF No. 98) be granted, and that Plaintiff's Amended Complaint be dismissed.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.