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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.

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

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

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

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

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

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

rightsSSmarriage, family procreation, and the
right is minimal, at best, we proceed to the
right to bodily integritySSdoes not include a
next step of the due process analysis, balancing
right to avoid exposure to members of the op-
the intrusion against the state's legitimate
posite sex. Planned Parenthood v. Casey, 505
penological interests.
U.S. 833, 847-49 (1992).12 We would have to
expand the Supreme Court's fundamental im-
The Supreme Court has mandated a lower
plied rights jurisprudence to create a right for
standard of review for "prison regulations
prisoners not to have members of the opposite
claimed to inhibit the exercise of constitutional
sex view them naked.
rights."14 We give great deference to prison
administrators' judgments regarding jail secur-
Despite these barriers to finding any
ity.15 The regulation need only be "reasonably
constitutional right to bodily privacy, several
related to legitimate penological interests."
courts of appeals, including this court, have
Turner, 482 U.S. at 89.
found that prisoners possess such a
constitutional right.13 Even though any such
Four factors determine whether there is a
reasonable relation: First, the regulation must
have a "valid, rational" connection to the gov-
12 Even if, arguendo, the right to bodily
ernmental interest put forth to justify it. Id. at
integrity provides protection against body cavity
89-90. Second, the court should consider
searches, Oliver failed to present any summary
whether the inmate has alternative methods for
judgment evidence of specific, cross-sex body
exercising that right. Id. at 90. Third, the
cavity searches.
court should consider the impact that
accommodation would have on other inmates
13 All of the following cases support a limited
or prison staff. Where the "ripple effect" is
right to bodily privacy, but none of them explains
large, courts should have greater deference.
its derivation from the Supreme Court's Fourth or
Id. Finally, the existence of easy, rather than
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
13(...continued)
security did not require an immediate search);
"special sense of privacy in their genitals" justifies
Hayes v. Marriott, 70 F.3d 1144, 1147-48 (10th
restricting female prison guards' surveillance of
Cir. 1996) (holding that body cavity search of male
male prisoners). Cf. Watt v. City of Richardson
prisoner in front of female guards stated a claim
Police Dep't, 849 F.2d 195, 199 (5th Cir. 1988)
for Fourth Amendment violation absent showing of
(finding that strip search of arrestee based on
security need); Fortner v. Thomas, 983 F.2d 1024,
twenty-year-old minor drug offense violated the
1030 (11th Cir. 1993) (recognizing a constitutional
Fourth Amendment).
right to bodily privacy that might bar female prison
guards from watching male inmates as they
14 O'Lone v. Estate of Shabazz, 482 U.S. 342,
showered and used the toilet); Kent v. Johnson,
344 (1987) (First Amendment); Turner v. Safley,
821 F.2d 1220, 1226-27 (6th Cir. 1987) (refusing
482 U.S. 78, 89 (1987) (mail and marriage
to dismiss complaint that stated that female prison
regulations).
guards routinely saw male prisoners naked,
showering, and using the toilet); Lee v. Downs, 641
15 O'Lone, 482 U.S. at 349; Turner, 482 U.S.
F.2d 1117, 1119-20 (4th Cir. 1981) (stating that
at 89; Elliot v. Lynn, 38 F.3d 188, 191 (5th Cir.
(continued...)
1994).
8

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

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

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.
11