detainees right to privacy and whether the prisons policy of having female guards observe him on a daily basis from four to five feet away while he showers and performs bodily functions violates his constitutional rights this case was improperly dismissed at the screening face because mr byrd has alleged the fission facts that when taken this true state a claim that it's possible on its face the district court was required to accept all the facts as true to drop all reasonable inferences in favor of mr byrd and to construe mr bird's complaint liberally with me which means it may only be dismissed if it is beyond a doubt that mr burke can prove no set of facts that would entitle him to relief the district court dismissed mr burt's complaint seemingly on a dispositive issue of law when it stated that this is precisely the type of observation that has long been held constitutional however a closer look and ninth circuit precedent shows that this type of observation has never been held constitutional on the contrary the cases that the district court cites mission fell there versus sumner and government versus russian expressly and strongly suggest that this type of observation would be a constitutional violation they take great care to distinguish their facts from the facts that mr byrd has alleged and in addition this court held and mr bird's prior on bank victory before this court that non emergency cross gender strip searches are unconstitutional as a matter of law the facts that mr byrd alleges of being observed while in the nude from four feet away present a factual scenario plausible to fit under this court's precedent and mr byrd prior on bunk case under the fourth amendment mr byrd is alleged efficient factual content that allows the court to draw the reasonable inference of the defendants are liable under section one hundred eighty three for violating mr bird's rights about only privacy and grommet an admission felder the court relied on a fully developed factual record and analyze all the ways in which the present balanced the privacy interests of the pretrial detainees and the prisoners against the equal employment opportunities and the institutional security requirements of the of the prison guards the court in granma to distinguish that only male officers work but here's where the showers were located only males a score did the prisoners to the showers where they disrobed and that there was no positions that involve females in closer prolonged surveillance of disrobed inmates only in light of these facts of the court established at the prison established a acceptable balance between their institutional security concerns and the inmates privacy rights here mr bird is alleged an up close and daily observation that does not show any accommodation of the prisoners privacy rights in fact it suggests a deliberate indifference to the privacy rights of the inmates by requiring that female guards observe them on a daily basis from such a close proximity of police don't contest the violation of mr bird's privacy rights on the contrary they present and argue factual bases that they have legitimate security interest but as to their first argument that institutional security justifies this kind of observation this court held and bird that although there are legitimate reasons for observation in general they do not extend to cover cross gender observation institutional security does not require both genders observing an inmate from four to five feet away we have not had any discovery on what exactly the states procedures are why they need to have women wanting these men correct now you know we've had no discovery at all this is a as you noted no discovery on the peano logical interest that the prisons were considering when instituting this policy actually on the face of mr bird's complaint and this court can see that there is no legitimate pina logical flouting what is actually written in their policies they have shown that they have no legitimate basis for doing so at least at the pleading stage the pallies have attempted to raise the legitimately logical interests of equal  employment concerns and also prison safety however as my co counsel noted the connection between a legitimate you know logical interests and a cross gender observation as in this case is tenuous at best and we should this court should require the pelleas to bring forth evidence that actually went through a thoughtful process and trying to accommodate both the female guards equal employment rights and also the privacy rights of mr byrd going to the fourteenth amendment punishment claim the supreme court has established that pretrial detainees have a right to be free from all restrictions that amount to punishment this is different than the standards of the eighth amendment which require prisoners to prove cruel and unusual punishment this court defined punishment in demi versus arpaio as harm that significantly exceeds or is independent of the inherent discomfort of confinement we would recognize that what is inherently discomforting about confinement would be occasional viewing of an inmate's naked body however in this case mr bird is observed from four to five feet away on a daily basis by guards of the same gender that sexually abused him in his youth that at least a few claim that what he is experiencing is significantly beyond what is normal in confinement and that's enough to state a claim for punish from a practical perspective though some of these prisons are designed in such  that's not the answer however the appellee should bring forth evidence that shows the exact structure of its prison shows whether or not the view that female guards were working men said it's premature because we don't have the facts but i is the only solution to hire male guards and preclude female prison guards from having that employment now your honor there are other accommodations that prisoners sorry prisons can make acknowledging that prison prisoners do have fundamental right to bali privacy such as using have tours on showers or using some sort of screen that they can shield their enclosed body to members of the opposite sex and whether or not this is constitutional really depends on a balancing test under the belt under turner that has to the prison has to bring forth evidence that it has at least tried to accommodate prisoners privacy rights and that their policy was reasonably related to a legitimate pain a logical interest in here as we've stated there is no such interest but seeing on the face of mr bird's complaint that have been supporting the appellee should be required on re man to bring forth evidence and show that they were at least trying to accommodate mr bird's rights going to the leave to amend issue if this court were to find any sort of deficiencies in mr byrd's complaint this court should find that he should have been granted leave to amend a district court does abuse its discretion if it is not if it denies leave to him and when it was not absolutely clear that amendment would be futile here any technical deficiencies in mr byrd's complaint could have easily been made therefore the score if it were to find any deficiencies should allow him to amend his complaint thank defendants sounds like my job it's now to limit the damage but i do want to begin that what i truly believe is the crux of the case on appeal and that's the inadequacy of this complaint it is true that a district court is too liberally construe a complaint but it is equally true that the district court cannot write it for mr byrd and in this case in comparison to the mit and mission folder there were several key differences several factual allegations that were missing and it was reasonable for the district court to dismiss mr bird's complaint at the screening stage because those factual allegations were missing specifically with regard to the fourth and fourteenth amendment right to privacy cases it's clear that mr byrd has alleged that he's observed on a daily basis and from a distance of  five feet away but the proximity and the daily frequency were not the only things that grommet mission folder discussed and it also included obstructions the reason for the observation the duration i think is most tellingly missing at this point from mr bird's second amended complaint and the district court already pointed out that mr bird's complaint is first amended complaint was vague on the details of what it was that he was allegedly subjected to and mr byrd failed to amend the complaint to a set satisfactory degree it is not simply liberally  construing the complaint that a district court does when it reviews particularly at a screening stage at this point the county defendants have not had the opportunity to answer have not had the opportunity and likely will not have the opportunity to it sounds like your honor and but we don't have truly an opportunity to file a motion to dismiss in these cases because this jurisprudence of this court has has really frowned upon that and so just like a district court would evaluate a motion to dismiss based on the context in this case prison and based on judicial experience your honor you've brought up some of the practical  realities of prison administration these form the background for viewing mr burrage complaint and saying is there a more likely explanation for the conduct of the defendants at this point w mr byrd has alleged and again very minimal allegations factually could just as easily be described as writ the kind of routine soule and shower checks that are performed by opposite get sex guards across the country that are specifically contemplated and and allowed under the prison rape elimination act guidelines set out by the department of justice and so at this point he has not alleged anything greater than which are already been included in gromit emission felder and also what's contemplated in those guidelines with those cases involved prisoners not pretrial detainees correct yes isn't that right there is not a way to distinguish those cases not necessarily because there's no clear guidance from this court that on this particular issue that it would be any greater for those right but that right i think you did answer the question right you just said not necessarily because we haven't  guidance therefore those cases can't preclude what they're looking for in this case right now your honor it's not that they couldn't preclude it's that in this case he has an alleged and not for for him to to get beyond was you know claiming that the well i think actually in one of the punishment cases summers versus thurman there was a discussion about prison  and the court actually upheld those those actions that conduct even shower duty again everything that we have here based on his complaint is nothing more than than what could just as plausibly be a routine seller shower jack just as easily as it could be some of the more egregious conduct that maybe for a pretrial detainee would not have to put up with that was alleged in summers versus thurmond should be allowed to develop that record or the know he had the opportunity to allege more than he did he was given specific guidance from the district court i think it's page fifty one of the excerpt of record where the court said mention grommet mentions mission failure and says these these allegations are too vague and mr byrd came back with the second a manic complaint and continued with these vague allegations counsel if i dismissed every case i'm a district in every case from a pro se defendant or individuals that failed to state every possible fact known to them about their particular claim then we wouldn't have anything on my case it would be in this court every day sounds like i'd be out of a job and and i think that it isn't pretty important to be sensitive to that but your honor there are examples of someone who finds a hard fragment or something a rock in their food typically district court will kick that as something that falls squarely within with this circuit and what the supreme court has already said is is permissible conduct unless they demonstrate that it goes involving beyond that we're grew exuberance with the ninth circuit has not ruled that well that the  and prisoners yes and let's assume that's the case yes so how do those two cases you keep going back to how they foreclose what these guys want to over here if this court is to take the view that pretrial detainees have the opportunity to develop this case to demonstrate that their rights are somehow greater on this issue there is nothing i can tell you that's not going to send this back because right now what we have in in in this market is growing in mission filter and that's the district court relied on and the court reasonably relied on that again based on the inadequate complaint that mr byrd was given the opportunity to amend and did not do so there are also decisions cited in the entering brief circuit i believe it's an eighth circuit case there was this krista dismissed at the screening stage very loud and your honor if the court is going to remand on the basis of this distinction between the additional rights that a pretrial detainee may be afforded as opposed to a post sentence individual i would ask for the opportunity to file briefing on that just simply looking at at the other circuits  around the country if the court would find that helpful if if it's not going to be helpful then you can always do a twenty a j that you don't even need our permission as you but it seems to me that it seems you've got two issues here one is you've got the prisoner cases and he's not exactly a prisoner he's in prison prison there is one of these legal contracts we have and then second that the conduct complained about these other cases are not exactly this i've read the other out of sort of case in there somewhere there's a the years after an emergency situation they do strip searches or there they can view the shower but i think it's one of the cases but the window it gets foggy and so you can always see what's going on in the shower he alleges in the complaint i think i can understand what he's saying is that when he's in the bathroom there's a woman five feet from stamina and so you have any cases where that is the situation the bathroom stall stared down i mean do we have anything like that your honor i think i would quibble with the stare down portion of that because again i think he very tellingly has not addressed the duration of the observation but aside from that the johnson case out of the seventh circuit explicitly permitted vigilance the were all over and garrett again these are not pretrial necessarily pretrial detainees but these these cases from around the country allow and what could be construed as a greater amount of observation  because this is not a strip search this and i think that is something that is important and when i said at the beginning i would try to limit some of the damage this is in a strip search it is not all over with summary judgment correct yes so it may be at the end of day you're absolutely right but to use a summary judgment case to get rid of a case a motion to dismiss that's not that's not totally square here you're right on and that's why relied on story foot as well because that was upheld specifically under is as much as mr byrd has attempted to to bootstrap his prior case and has attempted to sort of fit this observation in under the rubric of of strip search there's there's no reason why the district court needed to accept this what he's alleged as a strip search based on the case law you did not move to have this dismissed you're doing an excellent job of defending something you didn't record and we'll put rebuttal first story versus foot was a qualified immunity case that did analyze the facts but that also alleged intermittent visual surveillance which we've shown is not the case here in addition this can be viewed as a strip search your honor maricopa county has a written policy that mr byrd has alleged that a strip search is the visual scan of an inmate's body after all clothing has been removed mr byrd has alleged facts that he's been visually scanned after his clothing has been removed so it's not a far stretch to see that this falls under birds prior bank victory in addition the court stated in bird's prior case quoted a first circuit that stated that the trend if not the clearly established law is that an inmate's constitutional rights are violated when he has observed and personal activities by members of the opposite gender such as showering and using the toilet in light of those cases mr byrd has alleged sufficient facts of the pretrial the cheney or as a prisoner to show distinct facts from grommet that strongly suggest that this is a constitutional violation and story forces which you're opposing counsel raising that case that was where the guy was being brought into the prison and they did a search when he came back in correct correct as i was in the can later he's not alleging that this happened when he would come in they were watching going to bathroom this would happen the duration of the time he was now you know he'll lead specifically i believe some page seventy of the record that he was viewed every day for five months while he was showering and performing bodily functions