[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-13083 ELEVENTH CIRCUIT
August 9, 2006
_______________________
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
_______________________
(August 9, 2006)
ON PETITION FOR REHEARING EN BANC
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and
PRYOR, Circuit Judges.
O R D E R:
The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.
/s/ J. L. Edmondson
CHIEF JUDGE
2
CARNES, Circuit Judge, concurring in the denial of rehearing en banc:
I concur in the denial of rehearing en banc for reasons that have nothing to
do with the merits of the Eighth Amendment issue addressed in Judge Barkett’s
dissenting opinion.
Because en banc decision making requires substantial expenditure of scarce
appellate court resources, the rules wisely provide that rehearing en banc should
be granted only when necessary “to secure or maintain uniformity of the court’s
decisions,” or when “the proceeding involves a question of exceptional
importance.” Fed. R. App. P. 35(a). As the Advisory Committee Notes twice
remind us, those are intended to be “rigid standards.” Fed. R. App. P. 35(b)
advisory committee’s note (1998 amendment). There is no suggestion that the
panel’s decision on the Eighth Amendment issue in this case conflicts with the
holding of a prior decision of this circuit. Instead, the pivotal inquiry is whether
the Eighth Amendment issue in this proceeding is a question of “exceptional
importance.”
To be exceptionally important in a proceeding, an issue must at least matter
to the outcome of that proceeding. Otherwise, the parties will not care about it;
they should not be asked to spend the time and effort to litigate the issue through
3
the en banc stage; and deciding it becomes nothing more than an academic
exercise insofar as the case is concerned. There is nothing exceptional about an
issue that does not matter to the outcome of the case.
The panel held, and no judge of this Court appears to dispute, that Boxer X
has stated a valid claim for violation of his Fourth Amendment right to privacy. It
matters not to the disposition of this case whether the same factual allegations that
establish the violation of Boxer X’s Fourth Amendment rights also establish a
violation of his Eighth Amendment right to be free of cruel and unusual
punishment.
The provisions of the Prison Litigation Reform Act do not vary with the
type or number of the constitutional rights claimed to have been violated. So far
as the PLRA is concerned it makes no difference whether a given set of facts
violates one or a half dozen constitutional provisions. The right to injunctive,
compensatory, or punitive damages relief does not vary with the number of
constitutional rights that are violated. If Boxer X is entitled to X dollars because
certain conduct violates his Fourth Amendment rights, he is not entitled to any
more than X dollars if that same conduct also violates his Eighth Amendment
rights. No one has suggested, and I have not been able to imagine, a single piece
of evidence that would be admissible if the case were to proceed on an Eighth
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Amendment theory that will not be admissible when it proceeds on the Fourth
Amendment theory the panel has upheld.
It might be suggested that the panel decision, if wrong, will confuse Eighth
Amendment law and lead the bench and bar astray in future cases. I doubt that.
More importantly, I doubt if it will matter in any situation where it may happen.
Our decisions are controlling only in cases involving materially similar facts. If
the facts in a future case are similar enough to those in this case for the panel’s
decision to apply, the plaintiff in that future case will have a valid privacy rights
violation theory just as Boxer X has one. The Eighth Amendment holding won’t
matter in the future case for the same reasons it does not matter in this case. If it
does matter in some future case whether facts like these violate the Eighth
Amendment as well as the Fourth Amendment, then that case is the one in which
we ought to take the extraordinary step of going en banc. We should not do it in a
case where the decision of the en banc court will make no difference to the result.
Judge Barkett insists that “courts are required to adjudicate each claim on its
merits without regard to the merits of other claims.” Of course a district court is
required to do that, and so is a court of appeals sitting as a panel and discharging
the mandatory duty of appellate review. And that is exactly what the panel in this
case did. A federal appellate court in the form of a panel of three judges of this
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Court has decided every issue that Boxer X has presented. But appellate courts
are not required to take the extraordinary step of granting en banc review in order
to re-adjudicate every issue involving each claim or defense a litigant presents. If
they were, en banc review would be granted in every case. The question before
the house is not whether a litigant is entitled to one level of appellate review of the
issues affecting his claims but how our discretionary power to sit as an en banc
court should be exercised. While a plaintiff may be the master of his complaint,
he is not the master of the en banc court.
Judges, acting like law professors, sometimes get caught up in the twists
and whirls of a legal issue and debate beyond the point of conceivable
consequence the doctrinal tags and tickets to be attached. Especially when
deciding whether to take the extraordinary step of going en banc, we should keep
in mind that the role of our court system in civil cases is not to decide how many
analytical angels can dance on the head of a particular injury. Our role is to
determine whether the plaintiff before the court is entitled to relief. We ought to
leave the academic points to the academy, and by denying rehearing en banc today
we do that.
6
BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:
There is no meaningful debate in our society—nor has there ever
been—about whether forced masturbation is “part of the penalty that criminal
offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S.
337, 347 (1981). Nevertheless, the panel holds that the abuse allegedly suffered
by Boxer is not a violation of the Eighth Amendment because it considers forced
masturbation a de minimis harm. Dismissing Boxer’s Eighth Amendment claim
on the basis that he only suffered a “little” sexual abuse constitutes a “precedent-
setting error of exceptional importance” and warrants en banc review. See 11th
Cir. R. 35-3. Thus, for this reason, amplified below, I dissent from the denial of
rehearing en banc on this issue.
Once incarcerated, “the unnecessary and wanton infliction of pain . . .
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”
Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks omitted).
A prisoner asserting an Eighth Amendment claim must demonstrate that the prison
guard “act[ed] with a sufficiently culpable state of mind,” Wilson v. Seiter, 501
U.S. 294, 297 (1991), and that “the alleged wrongdoing was objectively ‘harmful
enough’ to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1,
7
8 (1992) (citation omitted).
In this case, there is no disputing the fact that the prison guard is alleged to
have acted with a sufficiently culpable state of mind. Nor should there be a
dispute that any sexual abuse constitutes “unnecessary and wanton infliction of
pain.” Pain need not be physical so long as “the alleged wrongdoing was
objectively ‘harmful enough’ to establish a constitutional violation.” Id.; see also
id. at 9-10 (stating that an inmate could very well have suffered “malicious and
sadistic force . . . whether or not significant injury is evident. Otherwise, the
Eighth Amendment would permit any physical punishment, no matter how
diabolic or inhuman, inflicting less than some arbitrary quantity of injury.”). Nor
should there be any dispute that forced masturbation constitutes sexual abuse.
Here, however, the panel opinion holds that there is no Eighth Amendment
violation because the harm inflicted was de minimis. It is unclear to me what
rationale the panel uses to support its position. Does the panel opinion stand for
the proposition that the sexual abuse of prisoners is not offensive to contemporary
standards of decency and human dignity? Is the opinion suggesting that the
Constitution permits a “little” sexual abuse? The panel “join[s] other circuits
recognizing that severe or repetitive sexual abuse of a prisoner by a prison official
can violate the Eighth Amendment.” Boxer X v. Harris, 437 F.3d 1107, 1111
8
(11th Cir. 2006) (citing Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th
Cir. 1999) (emphasis added); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997);
and Boddie v. Schneider, 105 F.3d 857, 860-61 (2d Cir. 1997)). Yet, the panel
fails to explain why forced masturbation is not severe sexual abuse or how such
mistreatment is to be distinguished from other forms of sexual abuse prohibited by
the Eighth Amendment.1
When the Supreme Court stated that de minimis abuses do not violate the
Eighth Amendment, forced masturbation under threat of reprisal was not the sort
of behavior of which the Court spoke: “The 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.’” Id. at 9-10 (quoting Whitley,
475 U.S. at 327) (emphasis added) (further internal quotation marks omitted). To
the extent that the panel concludes that Boxer has alleged only a de minimis harm,
the panel must necessarily conclude that forced masturbation is not “repugnant to
the conscience of mankind.” I cannot agree. To consider forced masturbation de
minimus, and therefore permissible at the whim of a jailer would be to deny the
1
Boxer alleged three incidents of compelled masturbation when he felt forced to comply
and two incidents wherein the guard filed false disciplinary reports against him when he refused
to follow her orders in this regard.
9
“‘broad and idealistic concepts of dignity, civilized standards, humanity, and
decency’” that are embodied in the Eighth Amendment. Estelle v. Gamble, 429
U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.
1968)). Compare Gill v. Tuttle, 93 F. App’x 301 (2d Cir. 2004) (unpublished)
(finding that prison guard spitting on prisoner constituted de minimis harm);
Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (holding that a
prisoner's bruised ear caused during a routine search constituted a de minimis use
of force).
At its essence, the test for measuring harm, for Eighth Amendment
purposes, is the extent to which a prisoner’s alleged harm violates: (1) human
dignity, and (2) contemporary standards of decency. See Atkins v. Virginia, 536
U.S. 304, 311-12 (2002). There is no question that Boxer has alleged a violation
of human dignity. The Supreme Court has explained that sexuality is central to
human dignity and even to the very meaning of human existence. In Lawrence v.
Texas, 539 U.S. 558, 567 (2003), the Court stated that laws regulating private
sexual acts between consenting adults implicate “their dignity as free persons.” In
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851
(1992), the Court explained that “personal decisions” relating to matters involving
sexuality are “central to personal dignity.” In the same vein, one of our sister
10
courts observed long ago that “elementary self-respect” and “personal dignity”
“impel[]” “[t]he desire to shield one’s unclothed figure[ ] from view of strangers.”
York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). Our society has always
recognized that “[s]exual abuse . . . can cause severe physical and psychological
harm.” Boddie, 105 F.3d at 861.
The district court relied heavily on the fact that Harris never touched Boxer,
but that reliance is misplaced. We have recognized that the “case law . . . of the
Supreme Court . . . made it plain that lack of physical injury did not mean that no
Eighth Amendment violation had been established,” Marsh v. Butler County, 268
F.3d 1014, 1034 (11th Cir. 2001), and “we have never held that a prisoner must
allege a physical injury in order to make out a cognizable claim under the Eighth
Amendment,” Harris v. Garner, 190 F.3d 1279, 1287 (11th Cir. 1999), vacated on
reh’g en banc, 197 F.3d 1059, reinstated in part, 216 F.3d 970 (2000) (en banc).
As Justice Blackmun explained in a much-cited concurrence in Hudson, there is
no reason “to limit injury cognizable under the Eighth Amendment to physical
injury. It is not hard to imagine inflictions of psychological harm—without
corresponding physical harm—that might prove to be cruel and unusual
punishment.” Hudson, 503 U.S. at 16 (Blackmun, J., concurring in the judgment)
(citation omitted). Justice Blackmun stated he was “unaware of any precedent of
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[the Supreme] Court to the effect that psychological pain is not cognizable for
constitutional purposes. If anything, our precedent is to the contrary.” Id.2
No court has ever suggested that forced masturbation would not run afoul of
the Eighth Amendment. Indeed, the Sixth Circuit has held that “a male inmate . . .
stated a claim under the Eighth Amendment . . . by alleging that ‘female prison
guards have allowed themselves unrestricted views of his naked body in the
shower, at close range and for extended periods of time, to retaliate against, punish
and harass him for asserting his right to privacy.’” Everson v. Mich. Dept. of
Corr., 391 F.3d 737, 757 n.26 (6th Cir. 2004) (quoting Kent v. Johnson, 821 F.2d
1220, 1227-28 (6th Cir. 1987)); see also Lee v. Downs, 641 F.2d 1117, 1119 (4th
Cir. 1981) (stating that “involuntary exposure of [a prisoner’s genitals] in the
presence of people of the other sex” could violate the Eighth Amendment when
such exposure is “not reasonably necessary”)3 If the involuntary exposure of a
2
See also Delaney v. DeTella, 256 F.3d 679, 685 (7th Cir. 2001) (permitting prisoner’s
allegations of mental and physical injuries resulting from the denial of “out-of-cell exercise
opportunities” for six months, and rejecting the defendants’ argument that “only a showing of
physical injury can satisfy an Eighth Amendment claim”); Benefield v. McDowall, 241 F.3d
1267, 1272 (10th Cir. 2001) (affirming claim based upon prisoner's allegation that a guard had
labeled him a “snitch” even though the prisoner had not alleged a physical injury); Jordan v.
Gardner, 986 F.2d 1521, 1525 (9th Cir. 1993) (en banc) (holding that cross-gender clothed body
searches constitute an “infliction of pain” because the searches created “a high probability of
great harm, including severe psychological injury and emotional pain and suffering” (emphasis
added; internal quotation marks omitted)).
3
To be clear, the sex of the prison guard is just one among many factors that might
contribute to the loss of human dignity experienced by a prisoner who suffers from sexual abuse.
12
prisoner’s genitals in the presence of people of the other sex is “especially
demeaning and humiliating,” id., then forced masturbation is beyond the pale.
This sexual abuse undeniably violates a most basic aspect of human dignity.
The nonconsensual nature of prison life should lead us to recognize that
Harris’s use of threats to force Boxer to masturbate was as constitutionally
offensive as if Harris had physically touched Boxer. The power imbalance
inherent in prison conditions is precisely what accounts for statutes that
criminalize even consensual sexual activity between prisoners and their guards.
See Brenda V. Smith, An End to Silence: Prisoners’ Handbook on Identifying and
Addressing Sexual Misconduct 21 (2d ed. 2002) (stating that nineteen states and
the District of Columbia provide for criminal liability for correctional staff even if
a prisoner consents to or voluntarily engages in sex); see, e.g., Fla. Stat.
§ 944.35(3)(b)(1), (3)(b)(3); Ga. Code § 16-6-5.1(c)(1)(B), (c)(3).
Moreover, with reference to the second measure of Eighth Amendment
harm, I would hope that there is no dispute that the conduct at issue clearly
offends contemporary (or any) standards of decency. See Hudson, 503 U.S. at 8.
Although it should not be necessary, I would note that a recent congressionally
I do not suggest that being forced to masturbate in the presence of a guard of the same sex would
not equally violate the dignity of a prisoner.
13
mandated report itself specifically defines sexual misconduct by correctional staff
as “[a]ny behavior or act of a sexual nature directed toward an inmate by an
employee . . . includ[ing] . . . indecent exposure, invasion of privacy, or staff
voyeurism for sexual gratification.” Allen J. Beck & Timothy A. Hughes, Sexual
Violence Reported by Correctional Authorities, 2004, at 3 (U.S. Dep’t of Justice,
Bureau of Justice Statistics July 2005), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca04.pdf (emphasis added).
Additionally, the criminal statutes of the federal government and forty-
seven states “specifically criminaliz[e] sexual abuse in prisons.” Smith, supra, at
21; see 18 U.S.C. §§ 2241(a)(1)-(2), 2243, 2244; see also, e.g., D.C. Code § 22-
3013; N.D. Cent. Code § 12.1-20-06. Society’s opprobrium for what happened in
Boxer’s jail cell is also manifested in the obscenity laws of several states. See,
e.g., Ala. Code 1975 § 13A-12-200.11; 720 Ill. Comp. Stat. § 5/11-21(a), (b);
Minn. Stat. § 617.23 sub. 1; Miss. Code Ann. §§ 97-29-101, 97-29-103(1)(a), (3).
Under Alabama law, for example, it would have been illegal for Boxer to expose
himself to Harris at a business establishment or private club. See Ala. Code 1975
§ 13A-12-200.11. If Harris could not have solicited Boxer to expose himself and
perform an autoerotic sex act in the voluntary context of a private strip club
without violating societal standards of decency, then clearly Harris violated those
14
standards when she used threats to force Boxer to masturbate for her in his jail
cell.
Neither contemporary standards of decency nor basic principles of human
dignity sanction compelled masturbation. The use of prison disciplinary
procedures to extract sexual favors from prisoners is the type of conduct that is at
the heart of what the Eighth Amendment proscribes and for good reason. The
sexual abuse of prisoners is an all-too-common phenomenon. Boxer’s complaint
of sexual abuse is not the first, and it will not be the last. The en banc court
should address the question of whether the conduct at issue here is too “little” to
be actionable under the Eight Amendments proscription of cruel or unusual
punishment.
Finally, I fully agree with the Panel’s conclusion that Boxer has stated a
privacy claim, but I do not believe that the Panel’s affirmance of his privacy claim
alters the extent to which his Eighth Amendment claim is warranted. It is beyond
question that Boxer’s possibility of recovery on his privacy claim by itself does
not lessen the importance of the constitutional principle at issue with respect to his
Eighth Amendment claim. Judge Carnes argues that en banc review is not
appropriate because Boxer has a claim for the violation of his right to privacy and
therefore the question of whether Boxer has stated an Eighth Amendment claim,
15
supposedly irrelevant to the outcome of Boxer’s case, is merely “academic.”
There is no support in fact or in law for this bald assertion. First, a claimant is
entitled to seek recovery against a defendant on more than one theory and courts
are required to adjudicate each claim on its merits without regard to the merits of
other claims. Second, the denial of Boxer’s Eighth Amendment claim has actual
consequences for Boxer.
In our federal system of civil justice, the plaintiff is the “master of the
complaint,” see Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535
U.S. 826, 831 (2002), and, under the law, is entitled to decide which and how
many claims he will assert. See generally Fed. R. Civ. P. 7(a), 8(a) & (e)(2) (“A
party may [] state as many separate claims or defenses as the party has . . . .”); cf.
id. 54(b) (establishing that an action is not terminated merely because a court
adjudicates “one or more but fewer than all of the claims” asserted). The drafters
of Federal Rule of Civil Procedure 8(e)(2) “realized that in a complex legal
environment flexible pleading was essential to a full presentation of all relevant
facts and legal theories at trial and the final settlement of disputes on their merits.”
5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil §
1282, at 714 (3d ed. 2004). “[A] pleader . . . will not be forced to select a single
theory on which to seek recovery against the defendant.” Id. § 1283, at 727–28.
16
We must adjudicate each claim on its merits without regard to the merits of other
claims. See Soldal, 506 U.S. at 70, 113 S. Ct. at 548.
These principles are no less important when the claims are constitutional
ones. The fact that Boxer has a right to privacy does not relieve us of our
obligation to review a different constitutional claim. The Supreme Court has
rejected this “fashion” of “doling out constitutional protections.” Soldal v. Cook
County, Ill., 506 U.S. 56, 70 (1992). Justice White, writing for a unanimous
Court, explained:
Certain wrongs affect more than a single right and, accordingly, can
implicate more than one of the Constitution’s commands. Where such
multiple violations are alleged, we are not in the habit of identifying as a
preliminary matter the claim’s “dominant” character. Rather, we examine
each constitutional provision in turn. See, e.g., Hudson v. Palmer, 468 U.S.
517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (Fourth Amendment and
Fourteenth Amendment Due Process Clause); Ingraham v. Wright, 430 U.S.
651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (Eighth Amendment and
Fourteenth Amendment Due Process Clause).
Id.; see also United States v. James Daniel Good Real Property, 510 U.S. 43, 49
(1993) (“We have rejected the view that the applicability of one constitutional
amendment pre-empts the guarantees of another.”); Loving v. Virginia, 388 U.S.
1, 12 (1967) (explaining that Virginia antimiscegenation law independently
violates both equal protection and substantive due process).
Moreover, although Boxer’s claim for relief under the right of privacy and
17
the right to be free from cruel and unusual punishment involve related concerns,
those civil rights are far from coextensive. Boxer might understandably believe
that his claim for relief under the Eighth Amendment, which provides a clear
textual and categorical ban of conduct relating to imprisonment, is a stronger legal
theory than his claim for relief under the right of privacy. This is particularly true
where a privacy claim is involved, as we have admittedly “declined to define the
precise parameters of a prisoner’s constitutional right to privacy,” Fortner v.
Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993).
Moreover, the panel did not hold that this claim was not actionable because
Boxer would obtain a full measure of relief under his privacy claim. It held, as a
matter of law, that this claim, regardless of the existence of other claims, was not
actionable. That holding is plainly wrong. By denying en banc review, this court
ignores “the virtually unflagging obligation of the federal courts to exercise the
jurisdiction given them” where an important constitutional right is at stake.
Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976).
18