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

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

. See Mitchell v. Forsyth,

(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,

, 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,

(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,

(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

3 statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald,

(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.,

(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

4 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,

(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,

(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,

(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.’”

(quoting

Whitley v. Albers,

(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,

. While violent sexual assaults involving more than de minimis

force are actionable under the Eighth Amendment, see Schwenk,

, 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,

(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,

. 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