by Douglas Ankney

On June 17, 2024, the United States Court of Appeals for the Sixth Circuit reversed a grant of summary judgment to Defendant Kentucky Department of Corrections (DOC) officials who forced a prisoner to wear paper undershorts and then shrugged when the prison supply that was his size ran out—leaving him over three weeks without clean underwear.

According to Turner’s complaint, disciplinary reports were filed in 2020 against him and several other prisoners—including Michael Carper—at Luther Luckett Correctional Complex (LLCC) in La Grange. The reports claimed Turner and Carper threatened other prisoners with bodily harm. As a sanction, they were placed in the Restrictive Housing Unit (RHU), where prisoners were held both for disciplinary violations and suicide watch. Prison policy adopted in 2018, after a series of suicide attempts, prescribed a security blanket and a security smock in lieu of standard-issue clothing to all RHU prisoners (whether suicidal or not). Defendants said that the policy also mandated issuance of paper boxer underwear, with guards Helen R. Long and Benjamin Harlan responsible for distributing a “clean, new, size-appropriate” garment “3-4 times per week,” as the Court later recalled.

After Turner entered RHU on June 8, 2020, supply chain disruptions caused by the COVID-19 pandemic depleted the prison’s stock of paper boxers in size XXXL, which Turner needed because he weighed 350 pounds. By June 29, 2020, he had worn the same paper boxers for five days. He told Long and Harlan that the garment was stained with urine and feces and had a foul “rancid” odor. Turner asked for cloth boxers until paper boxers in his size were available. His request was denied, though Long offered a pair of size L paper boxers. Turner refused because they were too small. He also filed a grievance, which was denied.

After another 17 days, Turner’s soiled paper boxers were falling apart. He tried to wear the size L paper boxers, but the garment fell apart and exposed his bare buttocks and genitals to other prisoners and prison officials—two of them women. Finally, on July 16, 2020, guard Cpt. Sarah Crawford came, and Turner showed her his bare buttocks through the ripped boxers. He begged for cloth boxers from his personal property, which Crawford quickly brought him. He wore them without incident until the size XXXL paper boxers were restocked.

Turner also alleged that on August 3, 2020, guard Berton Bare told Carper, in front of other prisoners, that Turner was a confidential informant (CI) in the investigation that had resulted in their placement in RHU. Other prisoners began calling Turner a “rat” and placed a “hit” on him. Turner was returned to LLCC’s general population on August 14, 2020. A prisoner hit him in the head with a lock on August 26, 2020. Turner was confined in RHU for protective custody until he was transferred in March 2021.

Turner then filed his pro se complaint in federal court for the Western District of Kentucky. Proceeding pursuant to 42 U.S.C. § 1983, he alleged an Eighth Amendment prison-conditions claim against Defendants for failure to provide clean hygienic underwear. He also lodged an Eighth Amendment claim against Bare for deliberate indifference to his safety in announcing that he was a CI. His last claim was for violation of his Fourth Amendment expectation of bodily privacy when the paper boxers exposed his buttocks and genitals to other prisoners, staff and security cameras. Defendants moved for summary judgment, which the district court granted. Turner appealed.

The Sixth Circuit began by observing that a prisoner making an Eighth Amendment conditions-of-confinement claim “must show (1) that he suffered a ‘sufficiently serious’ deprivation and (2) that a prison official acted with a ‘sufficiently culpable state of mind’ in creating that condition,’” as held in Farmer v. Brennan, 511 U.S. 825 (1994). The district court dismissed this claim in Turner’s case because he alleged no physical injury, and it said that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, bars prisoners from seeking compensatory damages for “emotional injuries” alone. But the Sixth Circuit said this was error; for emotional injuries alone, PLRA bars compensatory but not nominal or punitive damages, as held in Small v. Brock, 963 F.3d 539 (6th Cir. 2020). It was indisputable, the Court said, that Turner sought punitive damages in addition to compensatory damages.

The district court had granted summary judgment to Bare on the deliberate indifference claim because Turner produced no “admissible evidence that the alleged conversation between Bare and Carper ever happened.” Unsurprisingly, Bare denied making the comments. But the district court failed to mention Turner’s affidavit in which he claimed that he heard Bare make the comments. In that same affidavit, Turner also referenced a grievance he filed, specifying the prisoner to whom she was speaking—Carper—as well as the date and location she spoke—August 3, 2020, “on the walk” in “B-Lower” of RHU. The Court found “no reason whatever that would prevent a reasonable fact-finder from believing Turner’s version of events, which means that his testimony created a genuine issue of material fact.”

Regarding the Fourth Amendment Bodily-Privacy claim, the district court concluded that “[a]ny exposure of Turner to female LLCC staff—or anyone else, for that matter—was accidental.” But the Sixth Circuit disagreed. It had recognized in Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987), “a fundamental constitutional right to be free from forced exposure of one’s person to strangers of the opposite sex when not reasonably necessary for some legitimate, overriding reason.” Here, Turner alleged that his exposure resulted from a prison policy, so the district court should have applied the factors from Turner v. Safley, 482 U.S. 78 (1987), to determine whether the paper-boxers policy violated Turner’s rights: (1) Did LLCC have a legitimate governmental interest in forcing all RHU prisoners to wear paper boxers when the written policy was based only on suicide attempts? And (2), did the fact that cloth boxers were an easy alternative at no additional cost to the Defendants indicate that the paper-boxers policy was an “exaggerated response to prison concerns?” These were questions that must be considered, the Court declared.

The district court also failed to consider Defendants’ assertion of qualified immunity (QI), the Court noted, so it failed to conclude whether Turner’s right to privacy was clearly established. Accordingly, the decision was reversed and the case remanded with instructions particular to the Fourth Amendment claim to consider the Turner factors and Defendants’ assertion of QI. See: Turner v. Long, 2024 U.S. App. LEXIS 14881 (6th Cir. 2024).  

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