The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:
MEMORANDUM OPINION & ORDER
In this Section 1983 action, the Correction Officers Benevolent Association of Rockland County (the "Union") and certain Rockland County correction officers allege that a policy requiring that inmates under "constant supervision" be guarded by correction officers of the same sex violates the officers' Fourteenth Amendment rights. Defendants -- Rockland County Sheriff James F. Kralik, the Rockland County Office of the Sheriff, and the County of Rockland (the "County Defendants"), and the Chairman of the New York State Commission of Correction Thomas A. Beilein*fn1 -- argue, inter alia, that the policy is constitutionally permissible given the need to safeguard inmates' privacy rights.
All remaining defendants have moved for summary judgment.*fn2
For the reasons stated below, Defendants' motions for summary
judgment will be granted.
I.THE "CONSTANT SUPERVISION" REGULATION AND THE SAME-SEX OBSERVATION POLICY
The New York State Commission of Correction (the "Commission") is a creature of statute, and is authorized to "promulgate rules and regulations establishing minimum standards for . . . the care, custody, correction, treatment, supervision, [and] discipline [of] . . . all persons confined in correctional facilities," including inmates of the Rockland County Correctional Center ("RCCC"). N.Y. Correction Law §§ 40(3), 45(6). By statute, the Commission may also "visit and inspect correctional facilities . . . and appraise the management . . . with specific attention to matters such as safety, security, health of inmates, sanitary conditions, rehabilitative programs . . . and adherence to laws and regulations governing the rights of inmates." Id. § 45(3). Where a prison administrator violates a Commission rule or regulation, the Commission may "recommend remedial action, and direct such person to comply with the rule, regulation or law." Id. § 46(4). In the event of non-compliance, the Commission is authorized to "apply to the supreme court [of the State of New York] for an order directed to such person requiring compliance." Id. The Commission also has the power to close prison facilities that do not comply with its rules or regulations. See id. § 45(8)(a).
Pursuant to its authority under Correction Law § 45(6), the Commission promulgated Section 7003.3(h) of Title 9, NYCRR, which requires the chief administrative officer [of each correctional facility] or the facility physician [to] determine whether a prisoner requires additional supervision based on the prisoner's condition, illness or injury, and . . . [to] order such supervision if warranted. Additional supervision may include . . . constant supervision.
Section 7003.2(d) defines "constant supervision" as: the uninterrupted personal visual observation of prisoners by facility staff responsible for the care and custody of such prisoners without the aid of any electrical or mechanical surveillance devices. Facility staff shall provide continuous and direct supervision by permanently occupying an established post in close proximity to the prisoners under supervision which shall provide staff with:
(1) a continuous clear view of all prisoners under supervision; and
(2) the ability to immediately and directly intervene in response to situations or behavior observed which threaten the health or safety of prisoners or the good order of the facility.
Thus, under Section 7003.2(d), a correction officer guarding an inmate who requires "constant supervision" must continuously, without interruption, and with a "clear view," watch the inmate. This regulation does not address, however, whether the correction officer conducting the "constant supervision" of the inmate must be of the same gender as the inmate.
Until November 2002, the RCCC assigned correction officers to "constant supervision" duty without regard to their sex. (County Def. R. 56.1 Stat. ¶ 33)*fn4 On November 21, 2002, however, a Commission inspector performing a "cycle evaluation" -- to ensure that the RCCC was in compliance with Commission regulations -- observed that inmates under constant supervision were being watched by correction officers of the opposite sex. (Id. ¶¶ 32, 34) The inspector advised a lieutenant in the Rockland County Sheriff's Office that "the RCCC was violating the Regulation because it was unlawful for members of the opposite gender to conduct constant supervision." (Id. ¶¶ 35-36)
The RCCC requested a legal opinion from the Commission on this issue,
and in a November 22, 2002 letter to the RCCC, the Commission's
General Counsel opined that "an officer cannot maintain a continuous
clear view of an inmate of the other gender while simultaneously
providing the same inmate the privacy rights required. . . . As such,
it is the Commission's position that the constant supervision of an
inmate must be performed by an officer of the same gender."*fn5
(Id. ¶ 44; Dranoff Aff., Ex. R (Nov. 22, 2002 Commission Ltr. to RCCC))
In response to the Commission's directive, the County immediately implemented a same-sex constant supervision policy. (County Def. R. 56.1 Stat. ¶¶ 39-40; Dranoff Aff., Ex. G (Conjura Dep.) at 53) That policy states:
1) In accordance with New York State Commission of Corrections[,] constant supervision, as defined in the New York State Commission of Corrections Minimum Standards section 7003.2(d), shall be maintained in accordance with established New York State Case Law.
2) Constant Supervision as define[d] in NYS [Commission of Correction Regulation] 7003.2[(d)] is: ". . . the uninterrupted personal visual observation of prisoners by facility staff responsible for the care and custody of such prisoner without the aid of an electrical or mechanical surveillance devices. Facility staff shall provide continuous and direct supervision by permanently occupying an established post in close proximity to the prisoners under supervision which shall provide staff with:
(1) a continuous clear view of all prisoners under supervision; and
(2) the ability to immediately and directly intervene in response to situations or behavior observed which threaten the health or safety of prisoners or the good order of the facility"
3) New York State Case Law, as explained by the NYS [Commission of Correction], requires the gender of the Officer assigned to a constant supervision post be the same gender as the prisoner being supervised.
4) Constant Supervision posts for this Facility are, but may not be limited to, Suicide Watch and Precautionary Watch. (Dranoff Aff., Ex. P (County policy))
Assignment of officers to "constant supervision watch" at the RCCC is governed by the following procedures:
1) Any Officer assigned to a constant supervision watch shall be the same gender as the inmate being supervised.
2) In the event there are no non-bid post Officers available[,] the junior most bidded post Officer that is the same gender as that of the inmate may be tempora[rily] assigned to that constant supervision post.
3) In the event that no Officer of the same gender as that [o]f the inmate being supervised [is available], the use of overtime shall be authorized for the purposes of staffing the post with an ...