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FORTS v. WARD

June 17, 1977.

Iola FORTS et al., Plaintiffs,
v.
Benjamin WARD et al., Defendants.



The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

OWEN, District Judge.

 Four months ago, the State of New York commenced assigning male correction officers to duties in the housing and hospital units of the Bedford Hills Correctional Facility for Women. Plaintiffs, ten inmates, moved for a preliminary injunction enjoining the State defendants, Benjamin Ward, Frances Clement, Dorothy Reid and Melvin Osterman, Jr. and the union defendants, Security Unit Employees Council 82, Clayton DeFayette, Carl Gray, Local 1265 and A.V. Yarrell, from continuing such assignments on the grounds that they violate the female inmates' constitutionally guaranteed right to privacy. *fn1"

 Prior to oral argument, I read the affidavits and briefs submitted by the various parties. On June 9, at oral argument, *fn2" and after determining that, for the purposes of a preliminary injunction motion, there were no issues of fact requiring a hearing and the standards for granting, a preliminary injunction were clearly met, *fn3" Sonesta Int'l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973), I granted the preliminary injunction from the bench.

 Pursuant to Rule 52(a), F.R.C.P., the following are my findings of fact and conclusions of law upon which the preliminary injunction was granted.

 Plaintiffs submitted four affidavits from inmate-plaintiffs alleging inter alia:

 "The men correction officers look over the curtains which we use to cover the doorways to our cells when we are on the toilet. They pull these curtains down for no good reason...." *fn4"

 "Men guards have come into the shower room while I am drying myself and watched as I dried and dressed myself." *fn5"

 "It is also embarrassing that male guards are sent around to take the 6:30 a.m. count. I am usually asleep, and I feel very awkward about being awakened and peered at by these men guards when I am completely unable to control what position they observe me sleeping in." *fn6"

 "Finally, I feel very awkward that men are assigned as C.O.'s at the hospital. One time (March 24, 1977), I went to the hospital and was describing to the nurse what my problem which was of a personal, female nature [sic]. There was a man guard directly in front of the medication window, where the nurse was. I was very embarrassed to have to describe the problem in front of the man guard." *fn7"

 In their answering affidavits, none of these specific charges was denied. Defendant Carl F. Gray, Executive Director of the local Security Unit Employees union in his affidavit sworn to on June 7, 1977 makes much of the fact that, apparently, no disciplinary action has been taken against any male corrections officers and no grievances have been filed "by plaintiffs pursuant to the inmate grievance procedure with respect to any particular male correction officer at Bedford Hills." The decision not to use the grievance system does not rebut plaintiffs' allegations. *fn8" Plaintiffs did not sit on their rights. Male corrections officers were for the first time assigned to the housing units in February 1977. This complaint was filed on April 1.

 Further, defendant Gray is incorrect when he states at [*] 21 that "[plaintiffs] have presented allegations against unnamed individuals." The affidavits of Yvonne Lee and Linda Marron each name a specific Corrections Officer. None of the defendants submitted affidavits from these Correction Officers challenging the truth of the allegations, nor were affidavits submitted challenging generally the truth of plaintiffs' assertions. For the purposes of this motion, then, I take the allegations of the four affidavits as true.

 Instead of rebutting plaintiffs' allegations, defendants claim that the extraordinary relief of a preliminary injunction is not warranted because self-help remedies are available to the inmates. The State, by affidavit, asserts that in addition to the partial curtains covering the open doorway of each cell, which the inmates claim are pushed aside or looked over, there are also solid doors to each cell with a small glass peephole, also coverable with a curtain. These solid doors, the State conceded on the argument, are locked open. They can be closed, on an individual basis, by a corrections officer when the inmate asks for it. Based on this, defendants point to the fact "that prison policy permits [the inmates] to request that their doors be closed and the curtains pulled over the windows for fifteen minutes at a time while they are attending to personal needs." *fn9"

 However, it is not a satisfactory solution to the impairment to the fundamental right of privacy that an inmate must ask a corrections officer (who would often be a man) to come and close her door every time during every day she wished to use ...


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