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A prisoner claiming that his constitutional rights were violated as a result of prison overcrowding and a lack of private showers will have his case heard, after the U.S. Court of Appeals for the 10th Circuit on Monday reversed a lower court’s opinion that the lawsuit was frivolous.

Larry Allen Thompson is an inmate at the Buena Vista Correctional Facility within the Colorado Department of Corrections. In September 2017, he was told he would be moved to the facility’s lower East Unit. There were no private showers there, and furthermore the policy was to only allow the use of private showers by intersex and transgender inmates.

Thompson, who has post-traumatic stress disorder as a result of childhood abuse, was concerned about the transfer, given the lack of private showers. Communal showers with male inmates, many of whom are sex offenders, would trigger his PTSD.

An employee of the prison, according to the court documents, told Thompson “in no uncertain terms that [his] ‘safety concerns’ were ‘irrelevant,’ and the fact that [he] ‘. . . doesn’t want to shower with other men is not my (her) problem!’ ”

After his transfer, Thompson chose to not shower for 25 days until the department’s director of prison operations relented and allowed him to shower privately.

Thompson also claimed that the prison is understaffed, putting his safety at risk. Inmates are kept in cells for longer, but when let out there is less supervision.

The district court found that Thompson’s claims were frivolous. However, the circuit court saw that Thompson’s shower dilemma forced him to choose between maintaining hygiene or caring for his PTSD.

“Either way, Thompson would be deprived of humane conditions of confinement,” wrote Judge Allison H. Eid. “These allegations are not legally frivolous.”

While the circuit court dismissed Thompson’s claim of Fourth Amendment search-and-seizure violations, it sided with him on grounds of the Eighth and 14th amendments. Thompson could also, the court wrote, hold the defendants personally rather than institutionally liable because Thompson’s shower arrangement had been fixed by the time of the lawsuit.

“Thompson’s allegations regarding the defendants’ personal knowledge and participation … are sufficient,” Eid wrote.

To the understaffing claim, the court noted that “an inmate does have a right to be reasonably protected from constant threats of violence and sexual assaults from other inmates,” and concluded that Thompson’s suit could continue against the warden only.

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