Ashley v. Corley

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

DONALD ASHLEY JR #719638/122183 CIVIL ACTION NO. 24-cv-920 SEC P

VERSUS JUDGE TERRY A. DOUGHTY

A CORLEY MAGISTRATE JUDGE HORNSBY

REPORT AND RECOMMENDATION

Introduction

Donald Ashley, Jr. (“Plaintiff”), a self-represented inmate, filed this civil rights

action against Deputy A. Corley based on allegations of unwanted physical contact. Before

the court is Corley’s Motion to Dismiss (Doc. 9) on the grounds that the complaint fails to

state a claim on which relief may be granted. The motion was noticed for briefing, but

Plaintiff did not file any response. For the reasons that follow, it is recommended that the

motion be granted.

Relevant Facts

Deputy Corley challenges the complaint pursuant to Fed. R. Civ. Pro. 12(b)(6),

which requires that all well-pleaded allegations of fact in the complaint be accepted as true.

Plaintiff alleged that at around 7:00 one morning, Deputy Corley was preparing Plaintiff

for court. “While my handcuffs were tethered to the door, Corley pushed his forearm into

my neck and pressed his genitals against my backside.” Plaintiff added that Corley “was

whispering threats in my ear,” as Plaintiff “was moving my hips to avoid the unwanted

contact and Corley chased my back side with his groin.” Plaintiff alleged that the men left

the dorm and entered a sally port, where Corley “performed this action again after calling

a refusal.” Plaintiff prays for an award of $300,000, a protective order, and release from

custody on his own recognizance.

Rule 12(b)(6) Requirements

To avoid dismissal for failure to state a claim on which relief may be granted, a

plaintiff’s complaint must plead enough facts to “state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 127 S.Ct. 1955 (2007)). The factual allegations must “raise a right to relief

above the speculative level.” Twombly, 127 S.Ct. at 1965. “[P]ro se complaints are held

to less stringent standards than those drafted by lawyers,” but even in a pro se complaint

“conclusory allegations or legal conclusions masquerading as factual conclusions will not

suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378

(5th Cir. 2002).

Analysis

The sexual abuse of a prisoner by prison officials may, under some circumstances,

violate the prisoner’s right to be free of cruel and unusual punishment under the Eighth

Amendment. Brown v. Sloan, 2010 WL 476720 (W.D. La. 2010), citing Boddie v.

Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997). Sexual assault violates the Eighth

Amendment only if it meets a two-part test consisting of an objective and subjective

element. First, the assault must be objectively sufficiently serious. Second, the official

involved must have acted with deliberate indifference, meaning a sufficiently culpable state

of mind. Id. The Eighth Amendment is not triggered by de minimis uses of physical force,

provided the use of force is not of a sort repugnant to the conscience of mankind. Copeland

v. Nunan, 250 F.3d 743 (5th Cir. 2001) (unpublished). “[N]ot every malevolent touching

gives rise to a federal cause of action.” Id.

Deputy Corley represents that Plaintiff was a pretrial detainee on the date of the

alleged incident, so his claim arises under the Due Process Clause of the Fourteenth

Amendment rather than the Eighth Amendment that applies to claims by convicted

prisoners. The Supreme Court has eliminated the subjective element of the Eighth

Amendment test when it comes to claims by pretrial detainees. “[A] pretrial detainee must

show only that the force purposely or knowingly used against him was objectively

unreasonable.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). Kingsley deleted

the subjective prong, but Eighth Amendment authority on the objective prong can still be

persuasive. DeRouen v. Aransas Cnty. Det. Ctr., 2024 WL 4364415, *10 (S.D. Tex. 2024)

(analyzing claims of pretrial detainee who alleged sexual assault).

Sexual assault claims by pretrial detainees are not seen often in reported decisions,

but there are several decision regarding Eighth Amendment claims by convicted inmates.

Courts have rejected many Eighth Amendment claims that involved sexual contact that

was much more offensive than alleged by Plaintiff. In Copeland, a prison pharmacist

fondled an inmate’s penis on three separate occasions and fondled his anus once. There

was no evidence of any physical or psychological injuries from the episodes. The Fifth

Circuit found that the touchings, though despicable, did not involve a harm of such federal

constitutional proportions that they rose to the level of an Eighth Amendment violation. In

McGill v. Corrections Corp. of America, 2009 WL 790363 (W.D. La. 2009) the court

dismissed a claim based on allegations that a physician fondled the inmate’s penis and

testicles without consent. Boddie affirmed the dismissal of a complaint by a male prisoner

who alleged that a female officer touched and pressed against him a number of times

without his consent. The inmate in Brown alleged that an officer “sexually fondled” him

during a shakedown, but he did not allege any injury. Judge Drell adopted the

recommendation of Magistrate Judge Kirk that the incident, if true, could potentially be the

basis of a state law tort action but did not involve harm of federal constitutional proportion.

Other decisions have rejected similar claims. See, e.g., Legarde v. Metz, 2015 WL

3648628 (M.D. La. 2015) (prisoner alleged officer approached with his penis out and

ordered the prisoner to perform oral sex, refusal of which was followed by verbal

harassment; summary judgment granted for defendant); Wright v. Thompson, 2010 WL

3282955 (W.D. La. 2010) (officer asked for sex and touched inmate’s penis; complaint

dismissed for failure to state a claim); Washington v. City of Shreveport, 2006 WL

1778756, *5 (W.D. La. 2006) (allegations that, over the course of four days, defendant

fondled plaintiff’s breast, touched her inner thigh, grabbed her wrist, verbally asked for

sex, and made other sexual remarks were insufficient); Cooper v. Caddo Correctional

Center, 2007 WL 471185 (allegations that prison officer verbally harassed inmate and

grabbed his buttocks while the inmate was urinating did not state an actionable claim);

Harold v. LeBlanc, 2014 WL 2611725 (W.D. La. 2014) (claim that prison officer grabbed

inmate’s buttocks through his underwear did not state an actionable claim); and Mitchell

v. Miller-Roach, 2011 WL 5865232, *4 (N.D. Tex. 2011) (allegations of sexual gestures

and staring were insufficient).

The undersigned applied these principles in a similar Eighth Amendment claim by

a state prisoner who alleged that an officer came to his cell to take plaintiff for a shower

but, after plaintiff was handcuffed behind his back and on his knees, the officer “grabbed

my butt and pressed his hard penis in my back” even though Plaintiff told him to stop. The

officer then allegedly watched the inmate shower and licked his lips. The court found that

the officer was entitled to summary judgment. Smith v. Davis, 2019 WL 1938833 (W.D.

La. 2019), recommendation adopted, 2019 WL 1931748 (W.D. La. 2019) (Doughty, J.).

Plaintiff is a pretrial detainee, unlike the convicted prisoners whose Eighth

Amendment claims were assessed in the cited cases. But Plaintiff describes only two brief

incidents that happened close together. Both Deputy Corley and Plaintiff were apparently

fully clothed during the encounters, and Plaintiff did not allege any form of physical injury.

After considering the allegations in light of the authorities cited above, the undersigned

finds that Plaintiff has not stated a plausible claim for a Fourteenth Amendment due process

violation.

Accordingly,

It is recommended that A. Corley’s Motion to Dismiss (Doc. 9) be granted and that

all of Plaintiff’s claims be dismissed with prejudice for failure to state a claim on which

relief may be granted.

Objections

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties

aggrieved by this recommendation have fourteen (14) days from service of this report and

recommendation to file specific, written objections with the Clerk of Court, unless an

extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another

party’s objections within fourteen (14) days after being served with a copy thereof.

Counsel are directed to furnish a courtesy copy of any objections or responses to the

District Judge at the time of filing.

A party’s failure to file written objections to the proposed findings, conclusions and

recommendation set forth above, within 14 days after being served with a copy, shall bar

that party, except upon grounds of plain error, from attacking on appeal the unobjected-to

proposed factual findings and legal conclusions accepted by the district court. See

Douglass v. U.S.A.A., 79 F.3d 1415 (Sth Cir. 1996) (en banc).

THUS DONE AND SIGNED in Shreveport, Louisiana, this 25" day of

November, 2024.

PNY

U.S. Magistrate Judge

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