Despite the reinstatement of a civil rights lawsuit against an inmate by the Denver-based federal appeals court, a trial judge granted immunity to prison officials for allegedly unconstitutional conditions that they created in the case.
U.S. District Court Judge Raymond P. Moore on Tuesday dismissed allegations by Larry Allen Thompson, who accused officials at the Buena Vista Correctional Facility of violating his right to privacy and failing to submit to cruel and unusual punishments. Thompson, who suffers from post-traumatic stress disorder following a childhood sexual assault, went 25 days without showering because prison staff refused to give him access to an unshared shower.
Although Thompson said corrections staff were unaware of his “very real and tangible fears” stemming from his PTSD, Moore concluded that no previous court rulings would have warned the defendants that they were violating Thompson’s rights by denying him a private shower.
“Although he need not identify a case exactly on point, the existing case law must be sufficient to have placed the constitutional issue beyond debate,” Moore wrote in a March 29 order. In deciding so, he adopted the recommendation of a magistrate judge who concluded that Thompson could, at a minimum, bathe in the sink if he chose.
Similarly, in dismissing Thompson’s other claim that overcrowding and understaffing in the prison amounted to inhumane conditions, Moore noted that Thompson’s experience was “nowhere near as egregious” as in the case of other detainees.
Thompson originally filed a lawsuit in 2018, but within weeks Senior U.S. District Court Judge Lewis T. Babcock dismissed the allegations as frivolous. The United States Court of Appeals for the 10th Circuit, however, disagreed and reinstated the lawsuit. The appeals court explained that Thompson’s claims “may fail upon further consideration,” but he made a plausible legal argument.
Representing himself, Thompson alleged violations of his right to privacy of his body, his right not to be subjected to cruel and unusual punishment and his right to equal protection of the law. This last claim involved Thompson’s theory that because transgender and intersex inmates benefited from private showers, the right should be extended to him because of his PTSD.
Originally, Buena Vista staff moved Thompson from a residential area with private shower stalls to another area with a common facility. Thompson alleged that the unit supervisor was aware of Thompson’s medical condition and denied his transfer grievance. Another facility manager allegedly told Thompson it was “not his problem” if Thompson “doesn’t want to shower with other men.”
Thompson abstained from showering for 25 days, which he called “psychological torture”. Meanwhile, manager Jason Lengerich reportedly wrote to Thompson’s wife saying that Thompson ‘has not self-identified as transgender, gender non-conforming or intersex’ and that he would not be allowed a private shower . In early October 2017, less than a month after the transfer, officials allowed Thompson to resume showering in private.
The lawsuit sought $76,000 from the defendants for Thompson’s alleged constitutional violations. The government, in seeking the dismissal of the litigation, said there was no case from the 10th Circuit or the United States Supreme Court that said prison officials were acting unconstitutionally when forcing an inmate to shower with members of his sex.
“Other courts have strongly rejected claims that inmates have a right to bodily privacy to be seen briefly by other inmates of the same sex,” the Colorado attorney general’s office wrote.
Thompson countered that it was not his position that being “briefly seen” by members of the same sex was unconstitutional.
“Mr. Thompson, incarcerated for over 29 years, has been strip searched hundreds of times (all related to legitimate penological security issues),” Thompson wrote. In contrast to this “controlled and secure environment”, Thompson said his own sexual assault at age 14 – which took place in a shower – aroused a “tangible fear of being sexually re-victimized by sexual predators in an area/a environment that provides no safety and/or security barriers.”
Last month, U.S. Magistrate Judge S. Kato Crews recommended granting qualified immunity to jail defendants. Qualified immunity protects government employees from civil liability unless they violate a clearly established legal right. Although qualified immunity in theory prohibits police and other law enforcement officials from being prosecuted for acting reasonably, in practice judges look at previous court decisions to see if the behavior of these agents is considered acceptable in very similar circumstances.
Crews agreed with the government that there was little support for the idea that Thompson “has a constitutional right not to be seen naked by inmates of the same sex.”
As for Thompson’s claim for equal protection, Crews believed that Thompson’s PTSD did not put him in the same category as transgender or intersex inmates, given that the latter have physical or behavioral characteristics that expose them to greater risk of aggression.
Finally, the magistrate pointed out that being deprived of access to the shower for 25 days did not necessarily mean that Thompson could not bathe at all. Thompson had “access to some form of running water, such as a sink” and, therefore, was not subjected to unusual cruel punishment.
The lawsuit also raised concerns about the limited space given to inmates at Buena Vista. Thompson alleged a lack of fresh air and cleaning supplies, and complained of a nearly two-week lockdown. He also claimed that the lack of staff led to a “scrum” between inmates which lasted nearly 10 minutes.
Crews was unsympathetic, finding that Thompson had not alleged that he was starved or beaten, and that Thompson’s only injury was “discomfort”. The magistrate judge pointed to a 2002 10th Circuit decision, which found that an inmate’s lack of hygiene items, cleaning supplies, and minimal clothing and bedding while detained in a cold basement cell was not even cruel and habitual punishment.
Moore adopted Crews’ recommendation. In relation to Thompson’s trial, Moore acknowledged a cruel and unusual punishment finding in a previous case where inmate living spaces were “fire traps”, dining rooms were “immediate health hazards” and where two men shared a 40 square foot “cubicle”. Measured against those conditions, Thompson had not experienced “extreme deprivation,” the judge found.
The deal is Thompson v. Lengrich et al.
Editor’s Note: The spelling “controlled” instead of “controlled” in court documents is as the note reads.