Johnathan Lee X, Plaintiff-appellant, v. Oscar Gulmatico, Defendant-appellee,andthomas Bullock, Defendant,irene Bratten, Toni v. Bair, John Taylor, Edward W. Murray,c.d. Larsen, David A. Williams, David Smith, Joseph Killeen,thomas Bullock, Fred W. Greene, C.e. Thompson, Bettycoleman, Faye Newton, Christopher Watkins, Wayne Sheffield,tonya Stovall, Joanne Toyster, O.v. Jones, S. Batton, Misshatcher, Mrs. Dougherty, Lucille Evans, Miss Bower, W.j.oliver, R. Shaw, H. Crenshaw, Defendants.johnathan Lee X, Plaintiff-appellant, v. Irene Bratten, Toni v. Bair, John Taylor, Edward W. Murray,c.d. Larsen, David A. Williams, David Smith, Joseph Killeen,thomas Bullock, Fred W. Greene, Charles E. Thompson, Bettycoleman, Faye Newton, Christopher Watkins, Wayne Sheffield,tonya Stovall, Joanne Toyster, O.v. Jones, S. Batton, Misshatcher, Mrs. Dougherty, Lucille Evans, Miss Bower, W.j.oliver, R. Shaw, H. Crenshaw, Defendants-appellees,andoscar Gulmatico, Defendant, 932 F.2d 963 (4th Cir. 1991)

Johnathan Lee X, a Virginia prisoner, brought this 42 U.S.C. § 1983 action alleging numerous prison condition and treatment claims. They include claims related to assignment to segregation status and deprivation of privileges while in segregation, involuntary transfers, and claims related to a particular strip search. Further, X made several allegations regarding female guards being able to see him while he was partially dressed or undressed, denial of medical care, and improper disciplinary hearings. He sought monetary damages and injunctive relief.

Four of the defendants, Killeen, Watkins, Sheffield, and Hatcher, were not served within 120 days of the filing of the complaint, so they were dismissed as parties.

The district court granted defendant Gulmatico's motion for summary judgment; X then filed a notice of appeal. This notice of appeal gave rise to the appeal in No. 90-6570. The district court granted the motion for summary judgment as to the remaining defendants. X filed a new notice of appeal, and that appeal is No. 90-6676.¹ 

The appeal in No. 90-6570 is interlocutory. X appealed the district court's dismissal of his claims against defendant Gulmatico before the court had entered a final order disposing of the claims against all of the defendants. Therefore, the Court does not have jurisdiction over the appeal in No. 90-6570, and that appeal is dismissed. 28 U.S.C. § 1291; Catlin v. United States, 324 U.S. 229, 233 (1945).

However, X's second notice of appeal, filed after the district court dismissed the remaining claims and defendants, is effective as to the claims against Dr. Gulmatico as well as the remaining defendants.

One of X's claims bears discussion. X complained that female guards doing headcounts viewed him dressed only in his underwear in his cell during headcounts, clad only in a towel on the way to and from the shower, and occasionally with no clothes on during headcounts, during strip searches, and while he showered. The claims have no merit as they relate to X when he was dressed in a towel or underwear. However, prisoners are not to be viewed while they are undressed by guards of the opposite sex when not reasonably necessary. Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981). Although female guards may have occasionally seen X during headcounts while he was undressed, this sort of viewing seems to have been accidental. X's claim that female guards were stationed near the showers and that they saw him while he showered and during strip searches, however, may state a claim for relief. This Court has held that "male prisoners are ... entitled to judicial protection of their right of privacy denied by the presence of female guards stationed in positions to observe the men while undressed or using toilets." 641 F.2d at 1120. Defendant Thompson submitted an affidavit stating that female guards were not stationed near the showers. However, the female guards did not submit affidavits refuting X's allegations. Further, X's allegations must be taken as true on review of the grant of summary judgment. Because Thompson's affidavit was not sufficient to refute X's allegations for summary judgment purposes, we vacate the district court's dismissal of this claim and remand for further proceedings.

In addition, the dismissal of the action against defendants Watkins, Sheffield, Killeen, and Hatcher should have been without prejudice. Fed. R. Civ. P. 4(j). Consequently, we modify the district court's order to reflect a dismissal without prejudice as to these defendants.

In all other respects, the order is affirmed on the reasoning of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.

No. 90-6570--DISMISSED.

No. 90-6676--AFFIRMED AS MODIFIED IN PART, VACATED IN PART, AND REMANDED.