                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 28, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-30456
                          Summary Calendar



     BILLY SINCLAIR,

                                          Plaintiff-Appellant,

          versus

     RICHARD STALDER, In his official
     capacity; KELLY WARD, In his
     official capacity; VENETIA T.
     MICHAEL; JOHN ASHCROFT,

                                          Defendants-Appellees.




           Appeal from the United States District Court
               for the Western District of Louisiana
                        USDC No. 5-01-CV–188



Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Billy Sinclair, Louisiana inmate # 064373, appeals from the

summary judgment dismissal of his civil rights action under 42

U.S.C. § 1983.     Sinclair claimed that the assignment of female

prison guards to tier duty in the residential areas of his prison

unit violated his rights under the First, Fourth, Eighth, and


     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Fourteenth Amendments.    Sinclair sought declaratory and injunctive

relief prohibiting the use of female officers to supervise the

living areas at the David Wade Correctional Center, where he is

incarcerated.

     After a thorough examination of the record, we have determined

that the district court did not err in granting summary judgment.

See Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986); FED. R. CIV.

P. 56.   Accordingly, we AFFIRM the judgment of the district court.

     The   summary    judgment   evidence   provided   in   support   of

Sinclair’s Eighth Amendment claim shows that the use of female

officers to supervise the living areas of Sinclair’s unit occasions

nothing more than a brief postponement of the necessary functions

of urination and/or defecation, rather than the unnecessary and

wanton infliction of pain required for a constitutional violation.

See Whitley v. Albers, 475 U.S. 312, 319 (1986); Green v. Ferrell,

801 F.2d 765, 770-71 (5th Cir. 1986).       We affirm the dismissal of

Sinclair’s Fourteenth Amendment equal protection claim because

Sinclair failed to meet his burden to come forward with summary

judgment evidence showing that male and female prisoners are

similarly situated.    See Yates v. Stalder, 217 F.3d 332, 334 (5th

Cir. 2000); Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254,

263 (5th Cir.), cert. denied, 537 U.S. 824 (2002).

     Under the test set forth in Turner v. Safley, 482 U.S. 78

(1987), which is properly used to analyze Sinclair’s First and


                                   2
Fourth Amendment claims, the validity of a prison regulation or

practice turns on whether the regulation or practice is “reasonably

related to a legitimate penological interest.” Turner, 482 U.S. at

89.   This court has previously determined that a state has a

legitimate interest in maintaining security and pursuing equal

employment opportunity practices. See Ordaz v. Martin, No. 93-4170

(5th Cir. Sept. 15, 1993) (unpublished) (prisoner’s civil rights

action). Considering the summary judgment evidence, and in view of

Sinclair’s failure to suggest ready and effective alternatives to

the state’s policy, which is his burden, we have determined that

the state’s policy of using female officers to supervise the living

areas of Sinclair’s prison unit is reasonably related to legitimate

penological objections, including flexibility in security personnel

staffing and equal employment opportunity. See Turner, 482 U.S. at

89-91.   Given the evidence presented, Sinclair’s right to privacy,

which is at best minimal, see Oliver v. Scott, 276 F.3d 736, 745

(5th Cir. 2002), must yield to the state’s legitimate interest.

                             AFFIRMED.




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