United States District Court, M.D. Louisiana
RULING AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff’s Motion for Summary Judgment filed on January 14, 2015. (R. Doc. 36). Any opposition by Defendant, Christopher L. Metz, was due by February 9, 2015. See LR 7(f) (responses to motions must be filed within 21 days); Fed.R.Civ.P. 6(d) (adding 3 days for responses when service is made under Rule 5(b)(2)(E)); Fed.R.Civ.P. 5(2)(b)(E) (service by electronic means). As of this Order, Defendant has not opposed or otherwise responded to Plaintiff’s Motion for Summary Judgment.
This is a suit for constitutional violations made actionable by 42 U.S.C. § 1983. Plaintiff is an inmate incarcerated by the State of Louisiana. Defendant is employed by the State of Louisiana as a prison guard. At the time of the alleged incident, Defendant was working in the same facility in which Plaintiff was housed. According to Plaintiff, on March 13, 2013, Defendant “approached with his penis out and told [Plaintiff] to ‘suck his dick.’” (R. Doc. 36 at 1). After refusing this “advance, ” Plaintiff explains that Defendant followed him into the restroom. (R. Doc. 36 at 1). While Plaintiff “was urinating, ” Defendant allegedly took the handle of a broom and “shoved it on [Plaintiff’s] butt, ” saying: “‘You going to suck my dick. You a hoe.” (R. Doc. 36 at 1); (R. Doc. 36-4 at 2). Plaintiff again refused Defendant’s “advance” and left the restroom. (R. Doc. 36 at 1). Plaintiff claims that Defendant “then followed [Plaintiff] about his day” while “punching on [him]” and “telling him, ‘Bitch, you a hoe. You going to suck my dick.’” (R. Doc. 36 at 1); (R. Doc. 36-4 at 2).
Following these events, Plaintiff filed an ARP (Administrative Remedy Procedure), lodging a formal complaint against Defendant. (R. Doc. 36-4). The ARP did not include all of the allegations in the Complaint. (R. Doc. 36) (In a letter to his attorney, Plaintiff explains, “I didn’t get to write everything that I wanted to write in the ARP . . . .”). The prison’s First Step Response Form summarizes the allegations: “Offender Felton Lagarde in his ARP alleged . . . that Sgt. Metz approached him with his penis in his hand and asked him to suck his penis.” (R. Doc. 36-5). According to prison officials, when questioned about the incident, Defendant “admitted to Offender Legarde’s allegations.” (R. Doc. 36-5).
On December 18, 2013, Plaintiff filed this law suit claiming that Defendant’s conduct amounted to excessive force and sexual harassment in violation of his Eighth Amendment rights. Defendant submitted an Answer denying the allegations; however, he failed to plead qualified immunity-an affirmative defense. Plaintiff later filed this Motion for Summary Judgment on the issue of liability. (R. Doc. 36). Defendant has not filed an opposition or otherwise responded.
II. APPLICABLE LAW
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. When a motion for summary judgment is properly made and supported under Rule 56(c), the opposing party may not rest on the mere allegations of their pleadings, but rather must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed.R.Civ.P. 56(c)(1).
Plaintiff suggests that Defendant’s use of excessive force and sexually harassing behavior amounted to an Eighth Amendment violation. He seeks summary judgment on the issue of liability under the Eighth Amendment.
A. Sexual Harassment
An alleged sexual assault is actionable “under § 1983 when (1) the assault is objectively, sufficiently serious and (2) the involved prison official acted with a sufficiently culpable state of mind.” Tilley v. Gonzalez, 2010 WL 1541494, at *4 (N.D. Tex. Mar. 10, 2010); see also Burleson v. Tex. Dep't Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004) (same elements apply in the context of a general Eighth Amendment claim). There can be no doubt that severe or repetitive sexual abuse of an inmate by a prison officer can be objectively, sufficiently serious enough to constitute an Eighth Amendment violation. Boddie v. Schnieder, 105 F.3d 857, 861-862 (2d Cir. 1997). However, not all sexually-harassing actions amount to a constitutional violation afforded such protection. Boddie, 105 F.3d at 861 (verbal harassment and fondling of inmate’s genitals by prison guard, though despicable, not sufficiently serious to establish Eighth Amendment violation); Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995) (verbal sexual harassment by jailer, while outrageous and reprehensible, does not amount to a violation of the inmate's Eighth Amendment rights); Petty v. Venus Correctional Unit, 2001 WL 360868, at *2 (N.D. Tex. April 10, 2001) (same).
The facts established by Plaintiff, although uncontested, are insufficient to state a claim under the Eighth Amendment. Plaintiff has put forth evidence that Defendant exposed himself, asked Plaintiff to perform sexual acts on him and shoved a broomstick on Plaintiff’s “butt.” While the Court finds this conduct deplorable, it is not sufficient to rise to the level of an Eighth Amendment violation.
Because only severe or repetitive sexually harassing behavior or abuse will violate the Eighth Amendment, district courts in the Fifth Circuit have “consistently found that single, isolated acts, ” like the conduct alleged by Plaintiff, are not actionable claims of sexual harassment under the Eighth Amendment. Ben v. Brinks, 2014 WL 931796, at *2 (W.D. Tex. Feb. 13, 2014), report and recommendation adopted, 2014 WL 931432 (W.D. Tex. March 10, 2014). For example, in Ben v. Brinks, an inmate alleged “unwanted and unsolicited rubbing and touching of his inner thighs and buttocks” by a prison guard, who also “threatened to have him killed if he made any complaints to the authorities.” Ben, 2014 WL 931796, at *1. The court found ...