United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 26, 2004
Charles R. Fulbruge III
Clerk
No. 04-20150
Summary Calendar
DUKE STEWART ELLIOTT,
Plaintiff-Appellant,
versus
JAY T. MORGAN, Warden II; GLENN W. SMITH, Assistant
Warden; PRISCILLA DALY; MICHAEL P. ODWYER, Captain;
CYNTHIA A. WOOD, Officer; JAMES JONES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-1585
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Duke Elliott appeals a FED. R. CIV. P. 12(b)(6) and summary
judgment dismissal of his 42 U.S.C. § 1983 complaint. We affirm.
The district court did not err in dismissing Elliott’s
retaliation and Eighth Amendment harassment claims pursuant to rule
12(b)(6). The chronology of events alleged in the complaint do not
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
No. 04-20150
-2-
allow for the drawing of a plausible inference of retaliation. See
Jones v. Greninger, 188 F.3d 322, 25 (5th Cir. 1999). Similarly,
the allegations fall short of identifying behavior on the part of
Warden Morgan of the type necessary to state an Eighth Amendment
harassment claim. See Hudson v. Palmer, 468 U.S. 517, 530 (1984).
Further, the district court did not err in its summary judg-
ment qualified immunity determination that Elliott had not estab-
lished the violation of a clearly established constitutional right
insofar as he alleged that the routine, cross-gender body cavity
searches violated his Fourth Amendment right to privacy; no such
right is clearly established under either controlling authority or
a consensus of the persuasive authority. See McClendon v. City of
Columbia, 305 F.3d 314, 323, 329 (5th Cir. 2002) (en banc). We
therefore do not reach Elliott’s argument that the district court
erred when it held, in the alternative, that, as a matter of law,
he was not entitled to the requested relief. Given that Elliott
received adequate notice of the constitutional issue dispositive of
his Fourth Amendment claim and responded thereto, we find no error
in the decision to award summary judgment to the unserved defen-
dants. See NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 965
(5th Cir. 1991).
AFFIRMED.