Dаvid Canedy is an inmate at the Columbia Correctional Institution in Portage, Wisconsin. His complaint contains two counts. First, he alleges that during a shakedown of his housing unit, two female prison guards strip searched him, causing him “embarrassment, humiliation and mental distress.” Moreover, he contends that this embarrassment could hаve easily been avoided, as ten male officers were nearby while the two female guards conducted the search. In Cane-dy’s second count he claims that female officers regularly observe male inmates in a variety of settings typically considered private, including while they dress, showеr, defecate and sleep in various states of undress. He thus brought this action under 42 U.S.C. § 1983, seeking injunctive relief, including accommodations for his privacy rights, as well as damages.
The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action for which relief can be granted. According to the district court, whatever privacy interest Canedy might have is outweighed by the state’s interest in providing equal employment opportunity for female prison guards. “If female guards are to be given equal opportunity for employment and promotion, it is neeessary to allow thеm to observe male prisoners and conduct searches just as male officers would. To exclude females from observing or participating in all aspects of guard work could prevent them from gaining the experience they need to advance to higher positions, and bar them from аssuming those positions that require monitoring of inmate searches or other activities in which inmates are unclothed.” Opinion & Order (June 22, 1992) at 9.
At the outset we address a question of res judicata. This suit is not the only action that Canedy has brought challenging these practices. When Canedy filed his complaint in the current action, another case involving similar issues (though different defendants) was also pending before Judge Crabb. That suit, Canedy v. Erikson, No. 92-C-108, was *185 filed a month before Canedy filed the complaint in the current action. The defendants therefore argue that, the merits aside, the duplication of litigation provides grounds to affirm the district court’s dismissаl of this action.
That another case is pending does not raise questions of res judicata. Only a prior judgment is entitled to preclusive effect, and the district court entered final judgment in this case before Erikson was decided. In entering final judgment in this case, the court therefore faced no issue of res judicata.
When it later decided
Erikson,
it reаched the same result as it did here, relying on the same reasoning it employed in dismissing this case. The defendants now argue that allowing the repeated litigation of the same issues is a waste of judicial resources. But this misunderstands the doctrine of res judicata. Judicial resources are conserved by аsserting the previous judgment as a defense to a subsequent claim. If this claim and the one in
Erikson
are the same, the
Erikson
defendants could have argued that the final judgment in this case should have made the matter in
Erikson
res judicata (but note that, while the pendency of this appeal does not affect the “finality” of a judgment for res judicаta purposes, a previous judgment is a bar to further litigation on that claim only between the same parties or those in privity with them,
see McVeigh v. McGurren,
We therefore turn to the merits. The right to privacy is now firmly ensconced among the individual liberties protected by our Constitution.
Planned Parenthood v. Casey,
— U.S. -, -,
Some diminution of privacy is of course to be expected in prison.
See Hudson v. Palmer,
Thus, this court’s precedents have long recognized that, while “the justifiable reasons for invading an inmate’s privacy are both obvious and easily established,” the “surrender of privacy is not total and that some residuum meriting [constitutional protection] survives the transfer into custody.”
Bonner v. Coughlin,
Prison officials have an obvious interest in security. But that is not the only legitimate interest that might justify restricting inmates’ privacy rights. In
Smith v. Fairman,
Like the plaintiff in
Smith,
Canedy’s objection “is not to being searched, but rather to being searched by a member of the oppоsite sex.”
Id.
at 54. As noted, Canedy also objects to other prison practices, but the nature of his objection is the same: his privacy interest is invaded because female guards regularly see his naked body.
2
As we noted in
Smith,
except for unusual circumstances like those presented in
Dothard v. Rawlinson,
That being the case, it follows that prisons must be allowed to “utilize female guards to the fullest extent possible.”
Smith,
“Other courts,” Smith continues, “have reached essentially the same conclusion”:
While recognizing the right of onе sex not to be discriminated ¿gainst in job opportunities within the prison because of their gender, they have also concluded that inmates do have some right to avoid unwanted intrusions by persons of the opposite sex. The resulting conflict between these two interests has normally been resolved by аttempting to accommodate both interests through adjustments in scheduling and job responsibilities for the guards.
Id. at 55. Smith involved an Illinois prison where female guards would conduct pat-down searches on fully clothed male inmates. We concluded there that “by instructing female guards to exclude the genital area on male inmates in conducting a frisk, defendants have afforded plaintiff whatever privacy right he may be entitled to in this context.” Id. Thus, by “limiting the nature and scope of the search female guards are allowed to conduct on male inmates, it has sought to accommodate the right of women to equal employment opportunities with the male inmates’ right to privacy.” Id.
Almost every federal court that has addressed this issue has come to the conclusion that the Constitution demands such an accommodation, and that where these competing interests cannot be reconciled, a state’s interest in providing equal employment opportunity for female guards needs to be weighed against the privacy rights of prisoners. The cases therefore hold that sex is not a bona fide occupational qualification preventing women from working in all-male prisons, and that pat-down sеarches and occasional or inadvertent sighting by female prison employees of inmates in their cells or open showers do not violate the inmates’ right to privacy. But that right is violated where this observation is more intrusive (like a strip search, in the absence of an emergency) or a regular occurrence.
See Cookish v. Powell,
The defendants point out that two district courts have concluded that observation alone of male inmates by female guards does not violate a constitutionally protected privacy interest,
see Griffin v. Michigan Dept. of Corrections,
Canedy, here, is asking only for such an accommodation: that shower curtains be installed, that prison officials allow cell windows to be covered briefly when an inmate undresses or uses the toilet, that sleepwear be provided and that female guards strip search male inmates only in emergencies. We need not now determine which if any of these accommodations of Canedy’s privacy rights are required by the Constitution. But as the district court noted, the procedural posture of this case required it to accept as true all of the plaintiff’s allegations and any inferences reasonably drawn from the alleged facts. “[Ajmbiguities in complaints in federal court should be interpreted in favor of plaintiffs, not defendants.”
Early v. Bankers Life and Casualty Co.,
His complaint can fairly be read to allege that he has been subject to strip searches by female prison guards, and that no effort has been made to accommodate his privacy interests with the prison’s legitimate interests in security and in providing equal employment opportunity. The district court nonetheless dismissed the suit, apparently concluding that in light of the need to allow female guards “to observe male prisoners and conduct searchеs just as male officers would,” no such accommodation is necessary. Opinion & Order (June 22, 1992) at 9 (emphasis supplied). The court noted, however, that it “does not follow from this holding that prison officials should not adopt measures designed to afford privacy to inmates whenever it is reasonable to do so.” Id.
But where it is reasonable — taking account of a state’s interests in prison security and in providing equal employment opportunity for female guards — to respect an inmate’s constitutional privacy interests, doing so is not just a palliative to be doled out at the state’s indulgence. It is a constitutional mandate.
Because Canedy’s complaint can fairly be read to stаte a cause of action under § 1983, we REVERSE the dismissal of his complaint, and Remand the matter for further proceedings consistent with this opinion.
Notes
. We note that York, many of the cases discussed below involving cross-gender observations and strip searches, as well as Canedy’s brief on appeal here, make a cоmmon assumption. In their declaration that "the nudity taboo, and hence the invasion of privacy involved when it is forcibly broken, is much greater between the sexes than among members of the same sex,” Pl.Br. at 13, these authorities and submissions appear to assume that all of the relevant actors are heterosexual.
. While a religion-based allegation does not appear in his complaint, in Canedy’s brief he asserts that having his naked body exposed to female guards particularly burdens him because he is a Muslim, and Islam has a very strong nudity taboo. He therefore indicates that he may seek to amend his complaint to assert a violation of his rights under the free exercise clause of the First Amendment. We note that until recently, such a complaint would appear to challenge a religiously “neutral, generally applicable” practice, and therefore be doomed to fail under
Employment Division v. Smith,