Copeland v. Nunan ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-20063
CALVIN WAYNE COPELAND,
Plaintiff-Appellee,
VERSUS
ROBERT ALAN NUNAN, ET AL.,
Defendants,
ROBERT ALAN NUNAN,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-96-CV-226)
February 21, 2001
Before POLITZ, DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
I.
Calvin Wayne Copeland (“Copeland”) filed a pro se 42 U.S.C.
§ 1983 complaint in January 1996, during his incarceration with the
*
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opinion should not be published and is not precedent except under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.
Texas Department of Criminal Justice’s Institutional Division.1 In
his complaint, Copeland alleged that a prison pharmacist, Robert
Nunan, fondled his penis through the food slot of his cell on three
separate occasions, March 28th, 30th, and 31st of 1995, and that
Nunan also fondled his anus on the March 28th occasion.
Copeland contended that Nunan’s alleged actions violated the
Eighth Amendment, constituted both negligence and battery under
Texas law, and violated the Texas Deceptive Trade Practices Act.
Nunan moved the district court for entry of summary judgment in his
favor on the basis that Copeland had failed to allege a violation
of a constitutional right and that Nunan was entitled to qualified
immunity. The district court denied Nunan’s motion, holding that
Copeland had alleged a violation of the Eighth Amendment and that
Nunan was not entitled to qualified immunity.
Nunan has timely filed this interlocutory appeal from the
denial of qualified immunity. Because we conclude that Nunan is
entitled to qualified immunity, we reverse the district court’s
order denying summary judgment.
II.
We note at the outset, that despite the absence of a final
judgment, a district court’s denial of a claim of qualified
immunity is an appealable final decision within the meaning of 28
1
Copeland was released from prison in January 1999, and as of
March 5, 1999, he has been represented by appointed counsel.
2
U.S.C. § 1291. See Mitchell v. Forsyth, 105 S. Ct. 2806, 2817
(1985). Thus, we have jurisdiction to determine as a matter of law
whether the defendant is entitled to qualified immunity, after
accepting all of the plaintiff’s factual allegations as true. See
Colston v. Barnhart, 130 F.3d 96, 98-99 (5th Cir. 1997). However,
our jurisdiction over the district court’s denial of Nunan’s motion
for summary judgment is limited solely to the viability of Nunan’s
qualified immunity defense.
We review the denial of a motion for summary judgment
predicated on qualified immunity de novo. See Hayter v. City of
Mt. Vernon, 154 F.3d 269, 274 (5th Cir. 1998). Summary judgment is
proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with any affidavits filed in
support of the motion, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). And in reviewing a
motion for summary judgment, we must construe all of the evidence
and make all reasonable factual inferences in the light most
favorable to the non-moving party, in this case, Copeland. See
Melton v. Teachers Ins. & Annuity Ass’n, 114 F.3d 557, 559 (5th
Cir. 1997).
Government officials performing discretionary functions are
protected from civil liability under the doctrine of qualified
immunity if their conduct violates no “clearly established
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statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 102 S. Ct. 2727, 2732
(1982). In deciding whether an official is entitled to qualified
immunity, “we must determine: (1) whether the plaintiff has
alleged a violation of a clearly established constitutional right;
and (2) if so, whether the defendant’s conduct was objectively
unreasonable in light of clearly established law at the time of the
incident.” Jacobs v. West Feliciana Sheriff’s Dept., 228 F.3d 388,
393 (5th Cir. 2000).
The district court properly assumed Copeland’s allegations to
be true and proceeded to address Nunan’s entitlement to qualified
immunity in light of those allegations. The court held that
Copeland had pleaded a “conditions of confinement” violation of the
Eighth Amendment by a sexual assault that was “deliberately
indifferent” to his welfare. The district court made this
conclusion notwithstanding the fact that Copeland explicitly
conceded that he had suffered no physical injury. The district
court then summarily concluded that “any reasonable prison official
knows that forcing the type of unwanted sexual acts alleged in this
case upon an inmate is objectively unreasonable and in violation of
the inmate’s rights.” For these reasons, the district court
concluded that Nunan was not entitled to the defense of qualified
immunity. We disagree.
Copeland’s Eighth Amendment argument is framed as one related
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to the conditions of his confinement, conditions as to which Nunan
was allegedly deliberately indifferent. In order to establish a
claim based on conditions of confinement, a prisoner must
established that he is confined under conditions posing a
substantial risk of serious harm and that the defendant prison
official was deliberately indifferent to the risk. See Farmer v.
Brennan, 114 S. Ct. 1970, 1984 (1994). In none of Copeland’s
pleadings does he allege that Nunan was deliberately indifferent to
a condition of his confinement, rather he alleges entitlement to
relief based upon alleged unwanted touchings by Nunan.
Though not recognized in the context of a conditions of
confinement claim, sexual assaults against inmates by prison guards
without lasting physical injury may be actionable under the Eighth
Amendment as acts which are “offensive to human dignity.” Schwenk
v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000)(rape of
prisoner)(internal quotations and citations omitted). However, not
every malevolent touching gives rise to a federal cause of action.
See Hudson v. McMillian, 112 S. Ct. 995, 1000 (1992). More
specifically, the Supreme Court has said that “[t]he Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments
necessarily excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not of a
sort ‘repugnant to the conscience of mankind.’” Id. (quoting
Whitley v. Albers, 106 S. Ct. 1078, 1088 (1986)) (internal
5
quotations and citations omitted).
In this case, having reviewed the record in its entirety, we
are convinced that Copeland has alleged nothing beyond merely de
minimis physical or psychological injuries. Copeland concedes that
he has no lasting physical injury and alleges only that his penis
hurt while it was being touched. He complains of shame and bad
memories of the events, but the record evidence, including his
medical records, is devoid of competent evidence that Copeland
suffered any physical or psychological injuries from the episodes
complained of. Though by virtue of having been filed prior to its
enactment Copeland’s claims are not governed by the provision in
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e),
which would prohibit his recovery for mental or emotional damages
in the absence of an accompanying physical injury, our pre-PLRA
decisions made it clear that a prisoner could not recover under
§ 1983 for simply de minimis psychological injuries. See Graves v.
Doe, No. 95-20285, slip op. at 3 (5th Cir. Jan. 16, 1996)
(unpublished).
Under Hudson, Copeland can recover only if Nunan’s conduct was
“repugnant to the conscience of mankind.” Hudson, 112 S. Ct. at
1000. While violent sexual assaults involving more than de minimis
force are actionable under the Eighth Amendment, see Schwenk, 204
F.3d at 1195, 1997, isolated, unwanted touchings by prison
employees, though “despicable and, if true, they may potentially be
6
the basis of state tort actions . . . they do not involve a harm of
federal constitutional proportions as defined by the Supreme
Court.” Boddie v. Schneider, 105 F.3d 857, 860-61 (2d Cir. 1997)
(female guard sexually brushed against inmate on multiple
occasions).
In this case, we note that at least initially, Copeland
consented to a testicular examination by a clinical pharmacist in
response to his own complaints about pain in his testicles. Such
an examination was well within the scope of Nunan’s duties as a
clinical pharmacist, which position authorized him to physically
examine patients to detect and verify symptoms caused by reactions
to various medications. Beyond the initial examination, even
assuming the facts as alleged, Copeland was subjected to two
additional unwanted touchings for which he suffered no physical and
no more than de minimis psychological injuries, and from which he
was able to escape. We find such touchings, though despicable, not
to involve a harm of such federal constitutional proportions as
defined by the Supreme Court that they rise to the level of an
Eighth Amendment violation, especially in the absence of any
physical and no more than de minimis psychological injuries
unsupported by competent record evidence. For these reasons and
under these factual circumstances, we conclude that Copeland has
failed to allege a violation of a clearly established
constitutional right.
7
Additionally, even if we assume that Copeland has alleged a
sufficient constitutional violation, Nunan is entitled to qualified
immunity from suit if his conduct was not objectively unreasonable
in light of clearly established law at the time of the incident.
See Jacobs, 228 F.3d at 393. While in 1995, it was clearly
established by cases like Farmer and Schwenk that a forced sexual
assault was repugnant to the conscience of man and therefore an
Eighth Amendment violation, it was not clearly established that
isolated and uninvited sexual touchings with little if any
resulting physical or psychological damage, like those alleged in
this case, amount to constitutional violation. Thus, we conclude
that Nunan’s isolated actions, initially incident to a physical
exam consented to by Copeland and not resulting in either lasting
or more than de minimis injuries, were objectively unreasonable in
light of clearly established law at the time. In our view, an
objectively reasonable person would not conclude that Nunan’s
actions violated the Eighth Amendment based on the law in existence
at the time of the incidents.
III.
Having carefully reviewed the complete record of this case,
having considered the parties’ respective briefing on the issues
presented and having heard oral argument, we conclude that Robert
Nunan is entitled to qualified immunity. We, therefore, reverse
the order of the district court to the extent that it denies
8
Nunan’s motion for summary judgment on the qualified immunity issue
and remand this case to the district court for entry of summary
judgment on qualified immunity grounds in favor of Robert Nunan,
and for further proceedings not inconsistent herewith.
REVERSED and REMANDED.
9