Unpublished Disposition, 911 F.2d 738 (9th Cir. 1989)

MEMORANDUM^** 

Kenneth D. Parker, a Nevada state prisoner, appeals pro se and in forma pauperis the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action against Corrections Officer Gary Hill as frivolous. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), and we affirm.

The court dismissed Parker's action before issuing and serving process on the defendants. We therefore construe the dismissal as one under 28 U.S.C. § 1915(d). Jackson, 885 F.2d at 640. A court may dismiss an in forma pauperis action where it is satisfied that the action is frivolous. See 28 U.S.C. § 1915(d), Jackson, 885 F.2d at 640. Dismissal may only be sua sponte before service of process on defendants where the court has assessed the substance of the claim presented, and found the action to have no arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984).

Parker contends that on August 23, 1989 he was escorted to a bathroom facility by Hill during a court recess. He contends that Hill ignored his request to close the door and stood watching him, uttering degrading and humiliating remarks. Parker contends that Hill's actions violated his constitutional privacy, equal protection and due process rights, and is seeking compensatory and punitive damages, and declaratory relief. The district court dismissed the action on the ground that protections to the right of privacy do not extend to lawfully incarcerated inmates.

Parker correctly contends that his pro se complaint is to be reviewed under less stringent standards than a pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). Indeed, the Franklin court recognized that factual allegations contained in a pro se, in forma pauperis complaint are uncontroverted and entitled to the usual presumption of truth. Franklin, 745 F.2d at 1228. Further, the court must assess the substance of the claim "however inartfully drafted." Id. A pro se litigant must be given notice of deficiencies in his or her complaint, as well as leave to amend unless it is absolutely clear that the deficiencies could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

A section 1983 plaintiff must plead facts that show an arguable basis for the claim that he or she was deprived of constitutional or federal rights. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied 479 U.S. 1054 (1987). Parker asserts that he was deprived of his constitutional right to privacy when Hill refused to close a bathroom door and stood watching him defecate. This assertion does not provide an arguable basis in law or in fact for a constitutional claim.

Prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison, but are accorded those rights not fundamentally inconsistent with imprisonment itself or the objectives of incarceration. Hudson v. Palmer, 468 U.S. 517 (1984); Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988). Incarcerated prisoners retain a limited right to bodily privacy. Michenfelder, 860 F.2d at 333. A court will examine whether an alleged inpingement on an inmates rights is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). Courts are directed to accord great deference to prison officials' assessments of their interests. Id. at 92-93.

Several courts have recognized prisoner's claims regarding their right not to be viewed naked by the opposite sex. Michenfelder, 860 F.2d at 334, Grummett v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985). The Michenfelder court noted that the presence of female corrections officers at a strip search of male prisoners was not routine, and that there was no evidence that the incident complained of was anything but an isolated one. Michenfelder, 860 F.2d at 334. In dismissing another prisoner's section 1983 claim, the Grummett court noted that while a prisoner's interest in not being viewed naked by the opposite sex is a protected one, where observation is infrequent and restricted, court intervention is unwarranted. Grummett, 779 F.2d at 495. Both courts balanced the right allegedly invaded against the penological interest underlying the invasion and found the prisoners privacy expectations to be subordinate.

At the time Parker alleges his privacy interest was invaded, he was a lawfully incarcerated inmate using a bathroom facility during a court recess on the prison grounds. The district court held that considering the security concerns of the situation, Parker failed to state facts indicating that Hill's surveillance of him was unreasonable under the circumstances. We note that Parker alleges an isolated incident during which he was viewed by a person of the same sex.

Parker alleged violations of the 4th, 8th, and 14th Amendments to the U.S. Constitution, yet failed to plead any facts in support of his allegations regarding either due process or equal protection violations. The Supreme Court has held that a right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. Hudson, 468 U.S. at 528. Thus, because Parker had no protected right to a closed bathroom door, there is no arguable basis in law or fact for his claim and his action was properly dismissed as frivolous by the district court.

AFFIRMED.