                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

                                         No. 15-16282
CHARLES EDWARD BYRD,
            Plaintiff-Appellant,
                                            D.C. No.
                                         2:14-cv-02656-
                v.
                                           NVW-DKD
MARICOPA COUNTY BOARD OF
SUPERVISORS, John/Jane Does 1–
                                           OPINION
100; JOSEPH M. ARPAIO, named
as: Maricopa County Sheriff Joe
Arpaio; MARICOPA COUNTY
SHERIFF’S OFFICE, named as
Maricopa County Sheriff’s
Department,
            Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Arizona
        Neil V. Wake, District Judge, Presiding

      Argued and Submitted November 14, 2016
              San Francisco, California

                 Filed January 6, 2017
2        BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS

    Before: Stephen Reinhardt and John B. Owens, Circuit
     Judges, and Salvador Mendoza, Jr.,* District Judge.

                     Opinion by Judge Owens


                           SUMMARY **


                      Prisoner Civil Rights

    The panel reversed the district court’s sua sponte
dismissal under 28 U.S.C. § 1915A, and remanded in an
action brought under 42 U.S.C. § 1983 challenging
defendants Maricopa County Sheriff’s Department,
Maricopa County Board of Supervisors, and Sheriff Joe
Arpaio’s alleged policy of allowing female guards to observe
daily, from four to five feet away, male pretrial detainees
showering and using the bathroom.

    The panel held that even if plaintiff was a convicted
prisoner rather than a pretrial detainee, his allegations
survived a section 1915A dismissal. The panel held that
assuming that the female guards could view male pretrial
detainees while showering and using the toilet frequently
and up close, the scope and manner of the intrusions were
far broader than those this court previously has approved.



     *
     The Honorable Salvador Mendoza, Jr., United States District
Judge for the Eastern District of Washington, sitting by designation.

     **
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
     BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS              3

    The panel stated that it may be that the prison’s up close
and personal policy of female guards observing male pretrial
detainees was necessary to ensure security and provide equal
work opportunities in the prison. But such considerations
and their legal effect were just conjecture at this point. And
conjecture was not enough to dismiss a complaint under
section 1915A. The panel held that defendants should
respond to plaintiff’s lawsuit.



                         COUNSEL

Helen Andrews and Cory Batza (argued), Certified Law
Students; Jeremy B. Rosen, Supervising Attorney, and Mark
A. Kressel, Horvitz & Levy LLP, Burbank, California; for
Plaintiffs-Appellants.

Joseph J. Branco (argued), Anne C. Longo, and Thomas P.
Liddy, Deputy County Attorneys; William G. Montgomery,
County Attorney; Civil Services Division, Maricopa County
Attorney’s Office, Phoenix, Arizona; for Defendants-
Appellees.



                         OPINION

OWENS, Circuit Judge:

    Charles Edward Byrd, an Arizona state prisoner and
former pretrial detainee, appeals from the district court’s sua
sponte dismissal under 28 U.S.C. § 1915A of his 42 U.S.C.
§ 1983 action challenging defendants Maricopa County
Sheriff’s Department, Maricopa County Board of
4    BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS

Supervisors, and Sheriff Joe Arpaio’s alleged policy of
allowing female guards to observe daily, from four to five
feet away, male pretrial detainees showering and using the
bathroom. The district court dismissed Byrd’s pro se
complaint without requiring a response because it thought
that Ninth Circuit precedent foreclosed his claims. This was
incorrect. Because the district court should have required
defendants to file an answer to Byrd’s complaint, rather than
immediately dismissing it under section 1915A, we reverse
and remand for further proceedings.

    I. Background

    This is not the first time Byrd has challenged defendants’
policies for pretrial detainees. See Byrd v. Maricopa Cty.
Sheriff’s Dep’t, 629 F.3d 1135, 1147 (9th Cir. 2011) (en
banc) (agreeing with Byrd and holding that a cross-gender
strip search in the absence of an emergency violates a pretrial
detainee’s Fourth Amendment rights). This time, he alleges
in his handwritten pro se complaint (technically his second
amended complaint) that defendants’ policy of having
female guards regularly view his bathroom and shower use
from four to five feet away violates his Fourth and
Fourteenth Amendment rights, and causes him severe
emotional harm due to his own history of abuse. He also
alleges that this policy conflicts with defendants’ policy that
prohibits female guards from strip searching male prisoners
in non-emergency situations.

    The district court sua sponte dismissed the complaint
because “[t]he policy to which Plaintiff objects is precisely
the type of cross-gender supervision that has long been held
constitutional in the Ninth Circuit.” Because the district
court dismissed the complaint under section 1915A, we do
not have defendants’ side of the story, such as any
     BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS              5

counterbalancing security or personnel management issues
to consider.

   II. Standard of Review

    We review de novo a district court’s sua sponte section
1915A dismissal of a complaint, construing the pro se
complaint liberally and taking all the allegations of material
fact as true and in the light most favorable to Byrd. Ramirez
v. Galaza, 334 F.3d 850, 853–54 (9th Cir. 2003). We review
the denial of leave to amend for an abuse of discretion. Id.
at 854.

   III.     Discussion

          A. Fourth Amendment Claim

    Byrd alleges that defendants’ policy violated his Fourth
Amendment right to be free from unreasonable searches. To
determine if he is correct, we consider “(1) the scope of the
particular intrusion, (2) the manner in which it is conducted,
(3) the justification for initiating it, and (4) the place in
which it is conducted.” Byrd, 629 F.3d at 1141 (quoting Bell
v. Wolfish, 441 U.S. 520, 559 (1979) (internal quotations
omitted)). Taking Byrd’s allegations as true, Byrd has
sufficiently alleged facts to survive section 1915A dismissal.

    First, while the observation occurred in prison, where
there are limited privacy rights, see Hudson v. Palmer,
468 U.S. 517, 527 (1984), Byrd’s status as a pretrial detainee
suggests that he may have had greater rights than convicted
prisoners. See Stone v. City & Cty. of S.F., 968 F.2d 850,
857 n.10 (9th Cir. 1992) (noting that “pretrial detainees . . .
possess greater constitutional rights than prisoners”). That
alone is enough to distinguish Byrd’s allegations from
6    BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS

precedent concerning convicted prisoners, which the district
court thought foreclosed Byrd’s claims.

    Second, even if Byrd were a convicted prisoner, Byrd’s
allegations survive section 1915A dismissal. Assuming that
the female guards could view male pretrial detainees while
showering and using the toilet frequently and up close, the
scope and manner of the intrusions were far broader than
those our court previously has approved. In Grummett v.
Rushen, we upheld cross-gender surveillance of showers
specifically because “such actual viewing of the inmates is
infrequent and irregular.” 779 F.2d 491, 495 (9th Cir. 1985).
Similarly, in Michenfelder v. Sumner, we held that female
guards observing male prisoner body cavity searches from a
control booth that provided limited view of the searches, and
female guards sometimes conducting male prisoner shower
duty, were reasonable because the female guards were “not
routinely present for strip searches” and observation from
video monitors “would provide at most an indistinct, limited
view.” 860 F.2d 328, 334 (9th Cir. 1988). The current case
is, at this early stage, distinguishable from Grummett and
Michenfelder because the observation was allegedly not
infrequent, irregular, or from a distance, but frequent and just
a few feet away. The district court erred in reading our case
law to preclude Byrd’s claim.

    Defendants argue that this policy is justified to ensure the
institutional security of the prison and equal employment
opportunities for female guards. But at this early stage, after
a sua sponte dismissal of the complaint, we have no evidence
supporting defendants’ justifications for regular cross-
gender observation in showers and toilets. Further, Byrd
alleges that the challenged monitoring violates the prison’s
policy prohibiting guards from conducting cross-gender
strip searches of inmates and defining a strip search as “the
     BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS             7

visual scan of an inmate’s body after all clothing has been
removed.” If this is true, it undermines the prison’s
justifications for allowing female guards to view male
pretrial detainees in showers and toilets frequently and up
close.

    Defendants’ reliance on out-of-circuit authority actually
illustrates why the dismissal here was premature. For
example, in Timm v. Gunter, the Eighth Circuit upheld
female guard monitoring of male inmates showering.
917 F.2d 1093 (8th Cir. 1990). In that case, the observation
of prisoners (not pretrial detainees) was neither constant nor
intrusive, but rather “through small, steam- and water-
covered windows positioned in such a way as to hinder the
guard’s attempt to see every showering inmate’s body in
full.” Id. at 1101. And in Oliver v. Scott, the Fifth Circuit
upheld a cross-sex surveillance policy at the summary
judgment stage after reviewing evidence that the inmates in
question had “convictions for more severe and violent
crimes,” something the prisoner did not contest. 276 F.3d
736, 746 (5th Cir. 2002).

    Here, we have no evidence that the pretrial detainees
were especially violent. We do not have anything in the
record to suggest why this intrusive policy was necessary for
convicted prisoners, much less pretrial detainees. For all we
know at this point, this policy could be in place not for
security reasons, but merely to humiliate pretrial detainees.
Accordingly, Byrd’s Fourth Amendment claim is “sufficient
to warrant ordering [defendants] to file an answer.” Wilhelm
v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012).
8       BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS

          B. Fourteenth Amendment Right to Bodily
             Privacy Claim

    Byrd also alleges that defendants’ policy violated his
Fourteenth Amendment Due Process right to bodily privacy.
“[P]risoners retain a limited right to bodily privacy.”
Michenfelder, 860 F.2d at 333. As a pretrial detainee, Byrd
had at least the same right to bodily privacy as a prisoner.
See Stone, 968 F.2d at 857 n.10. As described below, our
analysis largely mirrors the above Fourth Amendment
discussion.

    “[W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” Turner v. Safley,
482 U.S. 78, 89 (1987). To determine if a prison regulation
can survive a constitutional challenge, we consider whether
(1) there is a “valid, rational connection between the prison
regulation and the legitimate governmental interest put
forward to justify it”; (2) “there are alternative means of
exercising the right” 1; (3) “the impact accommodation of the
asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources”; and
(4) there is an “absence of ready alternatives[.]” Id. at 89–
90. (internal quotations and citations omitted).

    Byrd alleges that the challenged observation violates the
prison’s own policy of prohibiting cross-gender visual strip
searches of inmates. This suggests that there may be no
    1
       The second factor – alternative means of exercising the right at
issue – is not relevant here because Byrd is seeking to protect his right
to privacy, which necessarily entails addressing the prison policy that
allegedly violates his rights. See Michenfelder, 860 F.2d at 331 n.1
(stating that the second Turner factor is much more meaningful in the
First Amendment context, than in the Fourth or Eighth, “where the
right is to be free from a particular wrong”).
     BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS                       9

“valid, rational connection” between the observation and a
legitimate prison interest. While Byrd does not allege any
facts about the impact that changing the prison’s policy of
allowing female guards to observe male inmates while
showering and using the bathroom would have on the rest of
the prison, he cannot know these facts at this early stage of
his case, nor is that his concern. Without a response from
the defendants, we cannot adequately assess the Turner
factors.

    We also have held that similar conduct involving a male
parole officer observing a female parolee while she used the
toilet, when his view was “neither obscured nor distant,”
violated her clearly established right to bodily privacy.
Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992).
Sepulveda strongly suggests that dismissal at this stage was
premature. Accordingly, the allegations of Byrd’s bodily
privacy claim, taken as true, warrant an answer. Wilhelm,
680 F.3d at 1116.

        C. Fourteenth Amendment Cruel and Unusual
           Punishment Claim

     Finally, Byrd alleges that defendants’ policy violated
his Fourteenth Amendment Due Process right to be free from
cruel and unusual punishment. 2 Prison officials may be
liable for cruel and unusual punishment if they “acted with
deliberate indifference to a substantial risk of serious harm.”
Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (internal
quotations omitted).



    2
      The Fourteenth Amendment, and not the Eighth Amendment,
governs cruel and unusual punishment claims of pretrial detainees. Bell,
441 U.S. at 535 n.16.
10    BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS

    Byrd alleges that he filed five grievances to alert prison
officials that he felt uncomfortable being observed by female
guards, particularly because of his past sexual abuse, to no
avail. These facts sufficiently allege for section 1915A
purposes that defendants were deliberately indifferent to
Byrd’s substantial risk of serious harm.

    Byrd also must show that a prison condition is not
“reasonably related to a legitimate governmental objective”
for it to be unlawful. Bell, 441 U.S. at 539. Defendants
repeat that the policy of allowing female guards to observe
male prisoners while showering and performing bodily
functions serves the prison’s interests in institutional
security and equal employment opportunities. But as Byrd
points out, the prison’s strip search policy potentially bans
this type of observation. And in any case, we have no
evidence to support defendants’ security and equal
opportunity goals because of the section 1915A dismissal.
Therefore, Byrd’s allegations for his cruel and unusual
punishment claim, taken as true, are “sufficient to meet the
low threshold for proceeding past the screening stage.”
Wilhelm, 680 F.3d at 1123.

     IV.   Conclusion

    It may be that the prison’s up close and personal policy
of female guards observing male pretrial detainees is
necessary to ensure security and provide equal work
opportunities in the prison. See, e.g., Michenfelder, 860 F.2d
at 334; Grummett, 779 F.2d at 496. But such considerations
and their legal effect are just conjecture at this point. And
conjecture is not enough to dismiss a complaint under
      BYRD V. MARICOPA CTY. BOARD OF SUPERVISORS                     11

section 1915A.         Defendants should respond to Byrd’s
lawsuit. 3

    Finally, we remand with instructions that the district
court appoint counsel to represent Byrd. See Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (“[A] court may
under ‘exceptional circumstances’ appoint counsel for
indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).”).
Exceptional circumstances exist in this case as evidenced by
Byrd’s limited ability to articulate his claims pro se, the
complexity of the legal issues involved, and the possible
merit of his claims.

    REVERSED and REMANDED.




    3
      Byrd argues that he should be allowed to add an Equal Protection
claim because female detainees are allegedly not subjected to cross-
gender observation in showers and toilets, while male detainees are. On
remand, the district court should consider whether to grant Byrd leave to
amend.
