The opinion of the court was delivered by: Baker, Chief Judge.
This is a class action by all prisoners at the Pontiac
Correctional Center of the Illinois Department of Corrections
seeking declarative and injunctive relief to remedy what the
prisoners assert are violations of their residual constitutional
rights to privacy. Jurisdiction is granted to the court under
28 U.S.C. § 1343(a)(3). Relief is sought under 42 U.S.C. § 1983 by
claiming that the defendant, acting under color of state law, has
deprived the plaintiffs of their rights under the First, Third,
Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments and the
penumbra of the Bill of Rights.
Specifically, the plaintiffs say that they are subjected to
view by women employees of the Department while the inmates are
in their cells or open shower and toilet facilities engaged in
basic bodily functions. The plaintiffs also complain that tours
of visiting students and law enforcement cadets, some of whom are
women, are allowed to see the plaintiffs unclothed or engaged in
basic bodily functions.
At the close of the plaintiffs' evidence, the defendant moved
pursuant to Fed.R.Civ.P. 41(b) for dismissal on the ground that
upon the facts and the law the plaintiffs have shown no right to
relief. For the reasons stated in this order the motion is
Based upon the record and the evidence adduced, the court finds
the following facts. The Pontiac Correctional Center is a maximum
security penitentiary for male inmates operated by the Illinois
Department of Corrections. The institution houses approximately
2,000 prisoners and has a staff of 740 employees. Of the 740
employees, about 100 are women and of that number, approximately
28 are corrections officers. The bulk of the female employees at
Pontiac are social workers and counsellors, dietary personnel,
medical staff, storekeepers, teachers, and secretaries.
There are three cellhouses at Pontiac. Each cellhouse contains
eight to ten galleries, each of which has approximately 52 cells.
Double celling of inmates predominates. The typical cell is a
cubicle with three walls and an open front end covered by bars.
The barred end of the cell opens onto the gallery which runs the
length of the tier of cells. Anyone walking on the gallery can
see into the cells and observe the activities of the inmates in
Each cell contains two beds, a sink, and a toilet. The cell
also contains all the personal belongings of the inmates and
sometimes a chest of drawers. In some of the cells, the toilet is
located at the rear of the cell. In other cells the toilet is
located at the gallery end of the cell.
Female employees of the Department come upon the gallery
unannounced. The corrections officers patrol the gallery. The
social workers and counsellors come upon the gallery to see
inmates. Storekeepers distribute commissary goods. Female medical
personnel come upon the gallery to take sick call. Department
lawyers interview inmates. In addition, upon occasion, tours of
students, public officials, state police cadets, and corrections
officers cadets, including females, are conducted unannounced in
the cellhouse galleries.
Female corrections officers began to serve at Pontiac in about
November, 1975. On February 15, 1984, the Department of
Corrections reached an agreement with the intervenor, AFSCME.
That agreement provides in pertinent part that "no employee shall
be ineligible to be assigned to a post based on gender except for
visitor shakedown." The agreement also provides that:
"Certain duties . . . may be limited based on gender.
1) Direct supervision of open showers; 2) direct
supervision of open toilets other than cells; and 3)
The official policy of the Department of Corrections is to hire
and assign female corrections officers and other personnel to all
duties on the same basis as male corrections officers with the
exception of assignments identified in the agreement of February
15, 1984. At present there are no full time duty assignments for
female corrections officers on the cell house galleries. Female
employees generally are not in the area of the open toilets and
showers in the industrial section of the prison and the showers
in the cellhouses are not open areas but closed ...