Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Lack of Shower/Bathroom Curtains Violate Privacy

Douglas Arey is a Maryland State prisoner. While at a recently built pre release center he complained that the lack of shower curtains and bathroom partitions, which allowed female guards to observe his genitals, violated his right to privacy. Prison officials took no corrective action.

While Arey was using the toilet a female guard observed him from less than a foot away. Arey protested and she infracted him for insolence. She later infracted him for not having his ID badge and for having expired athlete's foot cream. Arey filed suit under § 1983 claiming that the lack of shower curtains and bathroom partitions violated his right to privacy, and that the infraction violated his right to due process.

The district court noted that prisoner "do retain some constitutional right to privacy protecting them against unnecessary exposure of their genital areas to person of the opposite sex." Weighing the factors set forth in Turner v. Safely (the supreme court tests to be used in determining if a federal court will strike down prison rules that violate constitutional rights) the court held that the design of the facility violated the prisoner's right to privacy. The state had not indicated any security interest in not providing privacy in toilet and shower facilities. Moreover, the cost of providing such privacy was minimal. However, the court went on to hold that the defendants were entitled to qualified immunity for their actions because they could not have reasonably known their actions violated prisoner's rights.

The court ruled that because no loss of good time or disciplinary segregation were imposed as punishment for the insolence and failure to possess an identification badge, the due process protections normally applied to prison disciplinary hearings were not applicable.

Because Arey lost 10 days good time and spent 10 days in segregation for possessing the athletes foot cream, due process standards did apply to that infraction. The court held that this infraction was unconstitutional because the rule was too vague and did not adequately apprise prisoners that failure to return medication after its "stop date" constituted a punishable offense. The court ordered that the determination of guilt be expunged, that Arey's good time be restored and that he be reconsidered for reclassification. The court held that the defendants were entitled to qualified immunity for this constitutional violation as well. See: Arey v. Robinson , 819 F.Supp 478 (DC MD 1992).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Arey v. Robinson


Civil Docket No. Y-90-3009


819 F. Supp. 478; 1992 U.S. Dist. LEXIS 21639

July 7, 1992, Filed, Entered

PRIOR HISTORY: Adopting Magistrate's Document of April 3, 1992, Reported at: 1992 U.S. Dist. LEXIS 21810.

JUDGES: [**1] Young



[*479] ORDER

Having considered the objections filed by both parties to the report and recommendation issued April 3, 1992, by Magistrate Judge Catherine C. Blake, and having made a de novo determination as to all matters covered by those objections, it is hereby this 7th day of July, 1992, ORDERED that:

1. the proposed findings and recommendations of Magistrate Judge Blake are accepted;

2. the report and recommendation is affirmed and adopted;

3. the State is hereby directed to expunge the Rule 14 conviction from Mr. Arey's record and to have his classification reconsidered by officials not involved in the 1990 incidents or the 1990 classification and transfer decisions that are the subject of this suit; and

4. judgment is hereby entered finding that Mr. Arey's constitutional rights to privacy and due process were violated as stated in the Report and Recommendation but denying monetary relief and [*492] finding in favor of the defendants on all other claims.

Senior Judge Joseph H. Young, United States District Court