Despite the reinstatement of an inmate’s civil rights lawsuit by the federal appeals court based in Denver, a trial judge has granted immunity to prison officials for the allegedly unconstitutional conditions they created in the case.

U.S. District Court Judge Raymond P. Moore on Tuesday dismissed the claims of Larry Allen Thompson, who accused officials at Buena Vista Correctional Facility of violating his right to bodily privacy and to be free from cruel and unusual punishment. Thompson, who has post-traumatic stress disorder from a childhood sexual assault, went 25 days without showering because prison personnel refused to grant him access to a non-communal shower.

Although Thompson said corrections staff ignored his “very real, and tangible fears” stemming from his PTSD, Moore concluded there were no prior court decisions that would have put the defendants on notice that they were violating Thompson’s rights by denying him a private shower.

“Although he does not need to identify a case exactly on point, existing case law must be sufficient to have placed the constitutional issue beyond debate,” Moore wrote in a March 29 order. In so deciding, he adopted the recommendation of a magistrate judge who found Thompson could, at minimum, bathe in the sink if he wanted to.

Similarly, in dismissing Thompson’s other claim that the overcrowding and understaffing in the prison amounted to inhumane conditions, Moore noted that Thompson’s experience was “nowhere near as egregious” as in other inmates’ cases.

Thompson originally filed suit in 2018, but within weeks U.S. District Court Senior Judge Lewis T. Babcock dismissed the claims as frivolous. The U.S. Court of Appeals for the 10th Circuit, however, disagreed and reinstated the lawsuit. The appeals court explained that Thompson’s claims “may fail upon further examination,” but he had put forward a plausible legal argument.

Representing himself, Thompson claimed violations of his right to bodily privacy, his right to be free from cruel and unusual punishment, and his right to equal protection of the law. The latter claim involved Thompson’s theory that because transgender and intersex inmates were granted private showers, the right should extend to him due to his PTSD.

Originally, Buena Vista staff transferred Thompson from one residential area with private shower stalls to a different area with a communal facility. Thompson alleged the unit supervisor was aware of Thompson’s condition and denied his grievance about the transfer. Another manager at the facility reportedly told Thompson that it was “not her problem” if Thompson “doesn’t want to shower with other men.”

Thompson abstained from showering for 25 days, which he characterized as “psychological torture.” During that time, Warden Jason Lengerich allegedly wrote to Thompson’s wife saying Thompson “did not self-report as being transgender, gender non-conforming, or intersex” and would not be granted a private shower. In early October 2017, less than a month after the transfer, officials allowed Thompson to return to showering privately.

The lawsuit sought $76,000 from the defendants for Thompson’s alleged constitutional violations. The government, in asking to dismiss the litigation, said there were no cases from the 10th Circuit or the U.S. Supreme Court that had declared prison officials to act unconstitutionally when they force an inmate to shower with members of his sex.

“Other courts have soundly rejected claims that inmates have a right to bodily privacy from being briefly viewed by other inmates of the same sex,” wrote the Colorado Attorney General’s Office.

Thompson countered that it was not his position that being “briefly viewed” by members of the same sex was unconstitutional.

“Mr. Thompson, having been incarcerated for the past 29+ years has been strip searched hundreds of times (all related to legitimate penological security matters),” Thompson wrote. In contrast to that “controled and secure environment,” Thompson said his own sexual assault at age 14 – which took place in a shower – has fostered a “tangible fear of being sexually re-victimized by sexual predators in an area/environment which provides no safety and/or security barriers.”

In February, U.S. Magistrate Judge S. Kato Crews recommended granting qualified immunity to the prison defendants. Qualified immunity shields government employees from civil liability unless they violate a clearly-established legal right. While qualified immunity in theory prohibits police and other law enforcement officers from being sued for acting reasonably, in practice judges look to prior court decisions to see if those officials’ behavior is deemed acceptable under very similar circumstances.

Crews agreed with the government that there was little support for the notion that Thompson “has a constitutional right to not be seen naked by inmates of his same gender.”

As for Thompson’s equal protection claim, Crews believed that Thompson’s PTSD did not place him in the same category as transgender or intersex inmates, given that the latter have physical or behavioral characteristics that put them at greater risk of assault.

Finally, the magistrate judge pointed out that being deprived of shower access for 25 days did not necessarily mean Thompson could not bathe at all. Thompson had “access to some form of running water, such as a sink,” and, therefore, was not subjected to cruel and unusual punishment.

The lawsuit also advanced concerns about the small amount of space inmates were given at Buena Vista. Thompson alleged a lack of fresh air and cleaning supplies, and complained about a nearly two-week-long lockdown. He also claimed understaffing resulted in a “melee” between inmates that lasted for almost 10 minutes.

Crews was unsympathetic, finding that Thompson had not alleged he was starved or beaten up, and Thompson’s only injury was “discomfort.” The magistrate judge pointed to a 2002 decision of the 10th Circuit, which found an inmate’s lack of hygiene items, cleaning supplies, and minimal clothing and bedding while being held in a cold basement cell did not even amount to cruel and usual punishment.

Moore adopted Crews’ recommendation. In comparison to Thompson’s lawsuit, Moore acknowledged a finding of cruel and unusual punishment in a previous case where the inmates’ living spaces were “firetraps,” the dining facilities were “immediate health dangers” and where two men shared a 40-square-foot “cubbyhole.” Measured against those conditions, Thompson had not experienced “extreme deprivation,” the judge concluded.

The case is Thompson v. Lengrich et al.

Editor’s note: The spelling “controled” instead of “controlled” in the court documents is as the note reads.