The opinion of the court was delivered by: Mihm, Chief Judge.
The plaintiff, a state prisoner, has brought this civil
rights action pursuant to 42 U.S.C. § 1983. The plaintiff
claims that the defendant, the warden of the Pontiac
Correctional Center, violated the plaintiff's constitutional
rights by refusing to allow him to wear women's makeup and
apparel.*fn1 This matter is before the court for consideration
of the parties' cross-motions for summary judgment. For the
reasons stated in this order, summary judgement will be granted
in favor of the defendant.
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Herman v.
National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir.
1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d
782 (1985). "[I]n determining whether factual issues exist, a
reviewing court must view all the evidence in the light most
favorable to the non-moving party." Black v. Henry Pratt Co.,
778 F.2d 1278, 1281 (7th Cir. 1985).
However, Rule 56(c) "mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. "Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party there is no `genuine' issue for
trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th
The basic facts are uncontested: The plaintiff, at all times
relevant to this action, was a state prisoner confined at the
Pontiac Correctional Center. (The plaintiff no longer resides
at Pontiac.) The defendant, Pontiac Warden Richard Gramley,
refused to permit the plaintiff to wear women's makeup and
apparel, including skirts, dresses, feminine undergarments,
ankle socks and earrings. Neither makeup nor women's clothing
is available for purchase in the inmate commissary.
The plaintiff argues that the First Amendment (applicable to
the states through the Fourteenth Amendment) guarantees his
right to freedom of expression. Even assuming that the
plaintiff would otherwise have a right to express himself by
wearing women's clothing and cosmetics, legitimate security
concerns override any right the plaintiff may have.
While prisoners do not lose their First Amendment rights upon
incarceration, see Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct.
2532, 2538, 49 L.Ed.2d 451 (1976), an inmate's rights are
subject to restriction. "[A] prison inmate retains those First
Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94
S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). "[M]aintaining
institutional security and preserving internal order are
essential goals that may require limitation or retraction of
the retained constitutional rights. . . ." Bell v. Wolfish,
441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979).
Federal judges may not interfere in the daily administration of
state prisons barring substantial evidence that they have acted
disproportionately to correctional needs. Pell, 417 U.S. at
827, 94 S.Ct. at 2806.
When a challenged prison regulation impinges on an inmate's
constitutional rights, the regulation is valid if it is
"reasonably related" to legitimate penological interests.
Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96
L.Ed.2d 64 (1987); Siddiqi v. Leak, 880 F.2d 904, 909 (7th Cir.
1989); Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988).
In the case at bar, the defendant has articulated a rational,
non-arbitrary basis for regulating inmate attire. In his
affidavit, Gramley states that the Department of Corrections
has set restrictions on what clothing inmates are allowed to
possess in order "to minimize security risks." Gramley asserts
that allowing an inmate to wear women's garments and makeup in
an all-male prison could provoke and/or promote homosexual
activity or assault, thereby creating safety and security
risks. Gramley further maintains that an inmate dressed as a
female poses an additional security risk because the
potentially drastic "change in his identity" could facilitate
an escape from prison.*fn2
Moreover, accommodation of the plaintiff's asserted right
would be unduly burdensome for prison officials. Providing a
selection of female clothing and makeup at the prison
commissary for one (or few) inmates would make little fiscal
sense, apart from the additional inventorying such a venture
would necessarily entail. Furthermore, inmates dressed as
females undoubtedly would require heightened protection to
avoid attack by intolerant or sexually aggressive fellow
The plaintiff's discrimination claim likewise fails. The
plaintiff reasons that if women are allowed to wear pants, then
he should be allowed to wear a dress. In the context of equal
protection claims, the reasonableness of prison rules and
policies must be examined to determine whether distinctions
made between groups in prison are reasonably related to
legitimate penological interests. Williams v. Lane,
851 F.2d 867, 877 (7th Cir. 1988), cert. denied, 488 ...