[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 27, 2006
No. 04-13083 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00147-CV-6
BOXER X,
Plaintiff-Appellant,
versus
A. HARRIS,
Sergeant,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 27, 2006)
Before BIRCH, HULL and BOWMAN *, Circuit Judges.
BIRCH, Circuit Judge:
*
Honorable Pasco Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
Boxer X appeals the dismissal, pursuant to 28 U.S.C. § 1915A, of his civil
rights action under 42 U.S.C. § 1983 against Angela Harris, a guard at his Georgia
prison, who, according to the complaint, made him strip and masturbate for her
enjoyment. The district court adopted the magistrate judge’s report and
recommendation, which found that Boxer’s complaint did not state an Eighth
Amendment violation and that he failed to name the correct defendant for his claim
under the Due Process Clause of the Fourteenth Amendment. We VACATE the
entry of judgment and REMAND for proceedings consistent with this opinion,
because Boxer has stated a claim under our privacy jurisprudence and for
retaliation under the First Amendment.
I. BACKGROUND
Between July and November 2003 in Smith State Prison in Glennville,
Georgia, Harris repeatedly approached Boxer’s jail cell and demanded that he strip
naked and perform sexual acts of self-gratification.1 On 5 July 2003, Boxer
complained that his food was cold and that his tray was dirty. Harris stated that
she would get him a new dinner if he did her a “favor”: “to show her [his] penis”
while she watched through the flap in the prison door. R1-1 at 5. Boxer declined,
and Harris promised retribution.
1
The facts, as described in this section, are drafted as if the allegations in the complaint
are true. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
2
Incidents of this nature continued for the next several months. Sometimes
Boxer disobeyed Harris’s commands, but sometimes he obeyed her. On 1 August
2003, Boxer received two disciplinary reports that followed an encounter with
Harris in which he did perform for her. These reports were for failure to follow
instructions and exposure/exhibition. Boxer received these reports in the prison
distribution system and was not afforded the opportunity to challenge Harris’s
statements in front of a disciplinary hearing officer.
On 28 August 2003, Harris approached Boxer again offering not to write
further false disciplinary reports if Boxer followed her orders without question.
Boxer acquiesced to Harris’s orders on six occasions from September to November
2003. Boxer subsequently filed grievances against Harris, which were denied.
Boxer sued in December 2003.
The magistrate judge’s report construed Boxer’s complaint as alleging two
claims: one for relief under the Eighth Amendment and another under the Due
Process Clause of the Fourteenth Amendment. The court decided that the
harassment that Boxer endured was not severe enough to state a claim under the
Eighth Amendment and that Boxer had not factually or legally implicated Harris in
denying him an opportunity to be heard during the administrative punishment
process such that he had stated a claim against her under the Due Process Clause.
3
Boxer objected to the report and recommendation on the grounds that he had stated
a claim that Harris violated his Due Process, Eighth Amendment, and
constitutional privacy rights and alleged, for the first time, that he was retaliated
against for petitioning the supervisors of the prison for redress for Harris’s
improper treatment of him.
The district court adopted the magistrate judge’s report and
recommendation. Boxer argues on appeal that Harris’s conduct at his jail cell
violated his Eighth Amendment and privacy rights; that the retaliation for
exercising his rights under the grievance process violated his First Amendment
rights; and that he was administratively punished without a hearing in violation of
the Due Process Clause. Harris, for the first time on appeal, raises issues related to
the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321
(1996), codified in relevant part, 42 U.S.C. § 1997e (“PLRA”). We discuss these
issues in the following section.
II. DISCUSSION
A district court’s decision to dismiss for failure to state a claim under 28
U.S.C. § 1915A is reviewed de novo, taking the allegations in the complaint as
true. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). “Pro se pleadings
are held to a less stringent standard than pleadings drafted by attorneys and will,
4
therefore, be liberally construed.” Id. (citation omitted). On appeal, Harris raises
the PLRA and contends that the lack of physical injury precludes Boxer’s ability to
sustain his action. Because this issue was not raised before the district court, we do
not address it here.2 We must determine whether Boxer presented sufficient
allegations of constitutional violations to survive a motion to dismiss.
Boxer brings claims under 42 U.S.C. § 1983, which provides a cause of
action against any person acting under the color of state law for deprivations of any
right secured by the Constitution. The district court concluded that Harris did not
violate Boxer’s constitutional rights, and, therefore, Boxer had not stated a claim
for which relief could be granted under § 1983. We turn to the three substantive
claims raised by Boxer on appeal: (1) the constitutional violation caused by being
forced to strip and masturbate for Harris’s entertainment; (2) Harris’s retaliation
2
District courts should first consider whether the PLRA bars a prisoner plaintiff’s suit
prior to rendering a decision on the merits. This is a prudential consideration, because the PLRA
contemplates a merits dismissal prior to a finding of exhaustion. See 42 U.S.C. § 1997e(c)(2)
(“In the event that a claim is, on its face, frivolous . . . the court may dismiss the underlying
claim without first requiring the exhaustion of administrative remedies.”). However, this kind of
merits dismissal should be reserved for claims that are clearly frivolous. When, as here, a
district court has to cover new constitutional ground, it should first, as a matter of judicial
economy, ensure that a claim should not be dismissed under the PLRA. We note that the
defendant did not initially raise the PLRA, doing so for the first time on appeal, because the case
was dismissed sua sponte pursuant to the screening provision of 28 U.S.C. § 1915A before the
defendant responded to the complaint. On remand, the district court should address issues raised
by the PLRA.
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against Boxer for reporting her nefarious activities; and (3) the administration of
punishment without due process.
A. Substantive Claims Related to Compelled Masturbation
1. Privacy
We joined other circuits recognizing a prisoner’s constitutional right to
bodily privacy in Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993). In Fortner,
“female officers . . . solicit[ed] . . . [male prisoners] to masturbate and otherwise
exhibit their genitals for the female officers’ viewing.” Id. at 1027. We held that
this violated the prisoner’s right to privacy. Id. at 1030. Fortner outlined a very
narrow privacy right involving people’s “‘special sense of privacy in their
genitals’” and noted that “‘involuntary exposure of them in the presence of people
of the other sex may be especially demeaning and humiliating.’” Id. (citing Lee v.
Downs, 641 F.2d 1117, 1119 (4th Cir. 1981)). We have reaffirmed the privacy
rights of prisoners emphasizing the harm of compelled nudity. See Padgett v.
Donald, 401 F.3d 1273, 1281 (11th Cir. 2005). Nonetheless, we “continue to
approach the scope of the privacy right on a case-by-case basis.” Fortner, 983 F.2d
at 1030.
In this case, Boxer’s claim is clearly within the scope of the right established
in Fortner. Harris, a female prison guard, solicited Boxer to masturbate for her
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viewing. If his allegations are true, Boxer has stated a § 1983 claim for violation
of his privacy rights under Fortner.
2. Eighth Amendment
Boxer also appeals the dismissal of his claim under the Eighth Amendment,
which forbids the imposition of cruel and unusual punishment. In the context of a
prisoner’s conditions of confinement after incarceration, prison officials violate the
Eighth Amendment through “the unnecessary and wanton infliction of pain.”
Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970, 1977 (1994) (quotations
omitted). In this case, we join other circuits recognizing that severe or repetitive
sexual abuse of a prisoner by a prison official can violate the Eighth Amendment.
See, e.g., Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.
1999); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997); Boddie v. Schneider,
105 F.3d 857, 860–61 (2d Cir. 1997). “[S]exual abuse of a prisoner by a
corrections officer has no legitimate penological purpose, and is simply not part of
the penalty that criminal offenders pay for their offenses against society.” Boddie,
105 F.3d at 861 (citation and quotation omitted). Following Boddie, we conclude
that there is an objective component of the inquiry, which requires that the injury
be “objectively, sufficiently serious,” and a subjective component, which requires
the prison official have a “sufficiently culpable state of mind.” See id. at 861
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(citing Farmer, 511 U.S. at 834, 114 S. Ct. at 1977). However, under our circuit
precedent about the nature of actionable injuries under the Eighth Amendment, an
injury can be “objectively, sufficiently serious” only if there is more than de
minimis injury. See Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002).
On the facts as alleged in the complaint, however, Boxer has failed to meet
this standard. We conclude that a female prison guard’s solicitation of a male
prisoner’s manual masturbation, even under the threat of reprisal, does not present
more than de minimis injury. Accordingly, we affirm the dismissal of Boxer’s
claim under the Eighth Amendment.3
B. Retaliation
First Amendment rights to free speech and to petition the government for a
redress of grievances are violated when a prisoner is punished for filing a
3
Our finding that Boxer has failed to allege more than a de minimis injury and that he is
therefore not entitled to Eighth Amendment relief does not necessarily require dismissal of his
case under the PLRA, whose recovery limitation provision prevents recovery “for mental or
emotional injury . . . without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). We
note that the availability of nominal damages under the PLRA has not been resolved in our
circuit. See Hughes v. Lott, 350 F.3d 1157, 1162–63 (11th Cir. 2003). Circuits that have
considered the issue have allowed claims for nominal damages. See, e.g., Calhoun v. DeTella,
319 F.3d 936, 942 (7th Cir. 2003); Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002);
Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869,
878–79 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 252–53 (3d Cir. 2000). We have
held that § 1997e(e) does not affect the availability of declaratory or injunctive relief. See Harris
v. Garner, 190 F.3d 1279, 1288 (11th Cir. 1999), vacated, 197 F.3d 1059, reinstated in relevant
part, 216 F.3d 970, 972 (11th Cir. 2000) (en banc). However, as noted in footnote two, the
PLRA, including this issue regarding available remedies, should be addressed by the district
court in the first instance on remand.
8
grievance concerning the conditions of his imprisonment. Wildberger v.
Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989) (per curiam). Boxer expressly
claims that he was punished for complaining through the established grievance
system about his treatment by Harris.4 R1-11 at 1. The liberal construction that we
must give this assertion is sufficient to state a retaliation claim under § 1983. See
Wildberger, 869 F.2d at 1468.
C. Due Process
Boxer also appeals the denial of his due process claim that the prison did not
afford him notice and an opportunity to be heard on the false disciplinary charges.
The magistrate judge denied the due process claim because Boxer did not show
that Harris was responsible for denying the hearing. This decision is correct
because Boxer did not allege that any action by Harris deprived Boxer of any
procedural rights to which he was entitled.
III. CONCLUSION
Boxer’s civil rights complaint was dismissed for failure to state a § 1983
claim because the district court concluded that there was no violation of the Eighth
Amendment or the Due Process Clause. Because Boxer, as a pro se plaintiff, stated
4
The facts establishing this act of retaliation were first presented in Boxer’s objections to
the magistrate judge’s report and recommendation. The district court should have allowed
Boxer to amend his complaint to incorporate this claim. See Scott v. Clark, 761 F.2d 1524, 1527
(11th Cir. 1985).
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a claim within the purview of our privacy rights jurisprudence and because he
stated a claim for retaliation, it was improper for the district court to dismiss his
case. While we AFFIRM the dismissal of Boxer’s Eighth Amendment and Due
Process claims, we VACATE the entry of judgment and REMAND for further
proceedings consistent with this opinion.
10