No court extends more solicitude to state prisoners than the 9th Circuit.  A district court judge appointed a receiver to manage the state prison; for years the district court managed the Orange County Jail; in a series of cases upholding “prisoner rights” the court ordered the Dept. of Corrections & Rehabilitation  to allow an inmate to wear long hair as a religious issue under the First Amendment. Long hair also conceals drugs. 

Watison v. Carter is a 2-1 decison allowing an obvious vexatious inmate to maintain a First Amendment right of retaliation.  But in a partial dissent,written by a judge who previoulsy wrote an earlier unrelated opinion eqaully absurd, would allow an inmate to continue an 8th Amendment claim of cruel and unusual punishment for this: “. . . a corrections officer entered a cell searching for drugs while an inmate sat on the toilet.  According to the Complaint, the officer brushed against the inmate’s naked leg.”

According to this dissenting judge, that conduct qualifies as an 8th Amendment violation. In his words, “a prisoner sitting in his own cell on his toilet was allegedly rubbed on his thigh by a prison guard who had entered the cell. The sexual implications of this stroking plus the interference with the prisoner’s discharge of his bladder amounted to the infliction of psychological pain. Given the privacy allegedly invaded, this kind of pain was sufficiently serious to constitute constitutionally prohibited cruelty.”  Unbelieveable.

The ultimate absurdity: the dissenting judge quotes Justice John Marshall who obviously wrote on a different subject.