Yilver Ponce v. Virgil Lucas

Case: 13-31116 Document: 00512910905 Page: 1 Date Filed: 01/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-31116
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 22, 2015
YILVER MORADEL PONCE,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
VIRGIL LUCAS; DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS; JACK GARNER; TIMOTHY WILKINSON; JAY TIM
MORGAN; MRS MILLIE; MRS SAWYER; MR JOHNSON; SERGEANT
FLOWERS; MR MAC,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:10-CV-1478
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Yilver Moradel Ponce, Louisiana prisoner # 501096, seeks to appeal the
dismissal of his 42 U.S.C. § 1983 complaint in which he alleged that he was
subjected to strip and visual body cavity searches without reasonable
justification in violation of the Fourth Amendment. Ponce also alleged that his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-31116 Document: 00512910905 Page: 2 Date Filed: 01/22/2015
No. 13-31116
constitutional rights were violated because he was sexually harassed; he raised
breach of contract claims and failure to hire claims.
The district court dismissed the complaint as frivolous and for failure to
state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
Accordingly, our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005).
We first address Ponce’s claims that the searches here were
unreasonable because they were conducted in the absence of any penological
justification. Under the Fourth Amendment, “searches or seizures conducted
on prisoners must be reasonable under all the facts and circumstances in which
they are performed.” Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir. 1994)
(internal quotation and citation omitted). In analyzing the reasonableness of
the searches, the district court was required to balance the need for the
searches against the invasion of personal rights that the searches entailed by
considering the scope of the intrusions, the manner in which they were
conducted, the justification for them, and the places in which they were
conducted. See Watt v. City of Richardson Police Dep’t, 849 F.2d 195, 196-97
(5th Cir. 1988). Accepting Ponce’s allegations as true, which we must, see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), there was no justification,
penological or otherwise, for the searches conducted in this case. Dismissal for
failure to state a claim was premature and thus inappropriate because the
facts Ponce alleges could entitle him to relief for a Fourth Amendment
violation. See Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir. 1999).
Accordingly, we vacate the dismissal as frivolous and for failure to state a claim
of Ponce’s Fourth Amendment challenge to the strip and body cavity searches
and remand the case for further proceedings.
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Case: 13-31116 Document: 00512910905 Page: 3 Date Filed: 01/22/2015
No. 13-31116
Ponce’s sexual harassment claim fails because verbal abuse and
threatening language and gestures do not give rise to a cause of action under
§ 1983. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); McFadden v.
Lucas, 713 F.2d 143, 146 (5th Cir. 1983). Ponce has abandoned his claims
regarding breach of contract and failure to hire because he has failed to brief
them. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Finally,
because Ponce did not raise in the district court his claim regarding the
conditions of the room in which he was searched, we decline to address that
issue. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
Ponce’s motion for appointment of counsel is DENIED.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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