Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1986)

MEMORANDUM^** 

Norman Dehnhoff, a Washington state prisoner, appeals pro se and in forma pauperis the district court's grant of summary judgment in favor of defendant prison guards and officials in his 42 U.S.C. § 1983 action. Dehnhoff contends that his request to enlarge time for discovery was improperly denied, that various of his constitutional rights were violated as a result of a prison situation requiring him to use toilet and shower facilities in view of female custody officers, and that he did not have an opportunity for outdoor exercise. We affirm.

BACKGROUND

Dehnhoff was housed in Snohomish County's Jail Number 1 during three separate time periods from 1983 through 1985. Dehnhoff claims his privacy rights were violated due to the fact that female custody officers who were continuously walking up and down the main hallway or walking through the main tanks were able to view him while he was using toilet and shower facilities.

Dehnhoff further claims his privacy rights were violated when a female was present during a strip and body cavity search. He also contends to have been verbally abused by female custody officers when they stated they did not care about his rights and that there was nothing he could do about the situation.¹  Additionally, while housed in Jail Number 1, Dehnhoff was not afforded the opportunity for outdoor exercise.

We review de novo a grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986).

DISCUSSION

On February 14, 1986, the district court set forth the period for discovery to run through April 15, 1986. On April 24, 1986, Dehnhoff moved for an enlargement of discovery time after receiving a copy of defendant's interrogatories in the middle of March, and deciding that he, too, should do some discovery. CR 19. The information he wanted to obtain was the names of other prisoners who were housed in the county jail during the same time frame he was in jail, in order to contact them and perhaps obtain evidence to support his contentions. He did not mail his motion to enlarge discovery time, however, until April 18, after the period for discovery had expired. This motion was denied on May 13, 1986. CR 23.

It is true, as argued by Dehnhoff, that court procedures are complicated. Dehnhoff however, had ample opportunity during the original period for discovery to obtain this information. We find therefore that the district court did not abuse its discretion in denying Dehnhoff's motion to enlarge time for discovery.

An inmate's right to privacy is not violated by the occasional and infrequent viewing by female guards of inmates showering, using the toilet, or being strip searched. Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985). It then follows, even accepting Dehnhoff's assertions as true, that defendants are entitled to judgment as a matter of law. At Snohomish County, female custody officers rotated through various assignments. When assigned to Jail Number 1, the random surveillance tours provided a casual viewing to insure security and prevent violation of jail rules. Prolonged inspection was not encouraged or required unless a violation was identified. The observations were restricted by the bars, distance, and dim lighting. The locks of the gates made adequate noise to warn the inmates of the presence of an officer. Opaque curtains obstructed the view into shower stalls. Female custody officers were not routinely assigned to conduct the more intrusive searches. Thus, an appropriate balance existed between "the institution's security needs, the female guards' right to equal employment opportunities, and the prisoners' privacy interests." Id. at 493. We therefore hold that Dehnhoff's privacy rights were not violated. In addition, this conduct does not violate the eighth or ninth amendments. Id. at 493 n. 1.

Jail Number 1 is a county jail to which persons cannot be sentenced for more than one year. RCW 70-48-020(2) and (4). From 1983 through 1985, inmates were to be allowed three hours of physical exercise per week, either indoors or outdoors. WAC 289-22-210. The State Corrections Standards Board exempted Jail Number 1, which does not have an outdoor facility, from providing outdoor exercise because it had an adequate indoor facility, and because Jail Number 2, which was designed to have an outdoor facility, was under financing and construction. At Jail Number 1, indoor facilities were available, Dehnhoff was allowed outside his cell for at least twelve hours a day, and the length of confinement was less than one year. These conditions of confinement are distinguishable from the severe conditions that existed in Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979). We agree with the district court's holding that these conditions did not violate Dehnhoff's eighth amendment rights.

The district court further noted that since Jail Number 1 was now closed, Dehnhoff's privacy claims were moot as there was no threat of repeated injury or wrongdoing.²  The district court also found the issue of exercise to be moot because Jail Number 1 is no longer used, and Jail Number 2, which is now utilized, is equipped with open-air exercise facilities. Declaratory and injunctive relief will not be granted if the issue raised is moot and there is no threat of repeated injury or wrongdoing. City of Los Angeles v. Lyons, 461 U.S. 95, 109-113 (1983). There is no possibility of repetition since Jail Number 1 is closed and Jail Number 2 provides open-air exercise facilities. We agree with the district court's ruling that Dehnhoff cannot be remedied by declaratory and injunctive relief.

The district court judgment is

AFFIRMED.