Lance Wood v. Tom Beauclair, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, HARRY PREGERSON and DONALD E. WALTER) REVERSED IN PART; AFFIRMED IN PART; REMANDED. Judge: BBF Authoring, Wood shall recover the costs of his appeal. FILED AND ENTERED JUDGMENT. [8308320]--[Edited 09/05/2012 by ASW: Opinion updated and notice resent to correct opinion to indicate Judge Winmill was the District Judge, Presiding]

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 1 of 19

*Corrected 9/5/2012
FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE CONWAY WOOD,
Plaintiff-Appellant,
v.
TOM BEAUCLAIR, Director of
Prisons; KEITH YORDY, OPS; STEVE
WOLFE, OPS; PHIL FOSTER, Warden
of Idaho Correctional Institution of
Orofino (ICIO); DEAN ALLEN,
Deputy Warden of ICIO; ERIC
MACEACHERN, Deputy Warden of
ICIO; SHRIVER, Captain of ICIO;
LAWANDA THOMASON, Lieutenant of
ICIO; KEN ALDREN, Sergeant of
ICIO; ALIS LAHIE, Sergeant at
ICIO; SANDRA DE MARTIN,
Correctional Officer of ICIO;
ATENCIO, Deputy Warden of Idaho
State Correctional Institution; JIM
DORSEY, Sergeant of ISCI; DEBI
TITUS, Health Services
Administrator of ICIO; HILL,
Doctor; WHIPPLE, Nurse of ICIO;
JON-ERIC BAILLIE; VERN MCCREADY,
P.A.,
Defendants-Appellees.





No. 10-35300
D.C. No.
3:04-cv-00099-WBS
OPINION



Appeal from the United States District Court
for the District of Idaho
*B. Lynn Winmill, District Judge, Presiding
10487

Case: 10-35300

10488

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 2 of 19

WOOD v. BEAUCLAIR

Argued and Submitted
July 9, 2012—Portland, Oregon
Filed September 4, 2012
Before: Betty B. Fletcher and Harry Pregerson,
Circuit Judges, and Donald E. Walter, District Judge.*
Opinion by Judge B. Fletcher

*The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.

Case: 10-35300

10490

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 3 of 19

WOOD v. BEAUCLAIR

COUNSEL
Thomas G. Saunders, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington D.C., for the plaintiff-appellant.
Keely E. Duke, Hall, Farley, Oberrecht & Blanton, P.A.,
Boise, Idaho, for the defendants-appellees.

Case: 10-35300

09/04/2012

ID: 8308320

WOOD v. BEAUCLAIR

DktEntry: 62-1

Page: 4 of 19

10491

OPINION
B. FLETCHER, Circuit Judge:
Plaintiff-Appellant Lance Conway Wood is a state prisoner
in Idaho. Wood allegedly engaged in a romantic, but not sexual, relationship with a female prison guard, Sandra de Martin. Wood alleges that both during and after the relationship,
Martin perpetrated sexual acts on him without his consent. He
filed a civil rights complaint under 42 U.S.C. § 1983 alleging
constitutional violations of the First, Fourth, and Eighth
Amendments.
The district court granted summary judgment to defendants
on Wood’s Eighth Amendment claims finding that the romantic relationship between Wood and Martin was consensual
and, therefore, Wood implicitly consented to Martin’s sexual
conduct. Having consented, the district court held, Wood
could not state an Eighth Amendment claim. Wood appeals.
The appeal involves sexual abuse of prisoners by those supposed to protect them, the prison guards. Unfortunately, this
is a serious problem in our prisons today but when prisoners
seek redress for their abuse, often the state argues it has no
liability because the prisoner consented to the sexual conduct.
As we explain more fully below, because of the enormous
power imbalance between prisoners and prison guards, labeling a prisoner’s decision to engage in sexual conduct in prison
as “consent” is a dubious proposition.
I.

Background

Wood’s complaint alleged that Martin began working as a
corrections officer at the prison in 2001 and that Martin
started working on the unit where Wood resided in 2002.
Wood alleged that Martin had a “reputation for . . . being
overly friendly with the inmates.” Wood tried to stay away

Case: 10-35300

09/04/2012

10492

ID: 8308320

DktEntry: 62-1

Page: 5 of 19

WOOD v. BEAUCLAIR

from Martin but she pursued him. They conversed often about
personal topics. Eventually, a romantic relationship developed
between them. Occasionally, they would hug, kiss, and touch
each other on the arms and legs, but they did not engage in
sexual contact.
A few months after their relationship began, Wood started
to hear rumors that Martin had gotten married. This upset
Wood as his religious beliefs did not permit him to engage in
adultery.
Shortly after Wood started hearing rumors that Martin was
married, he asked her about it twice but she denied it each
time. He decided to confront her a third time. Wood went to
Martin’s office and told her:
[S]he had to be honest with me. Because I did
express to her before that my feelings on adultery
. . . . I was kind of crushed in a way because. . . I
believed that we were working on something . . . that
we had a future together.
....
I said that we needed to back off . . . . [W]e got to
stop.
He said the reason he wanted to back away was because he
wanted to investigate whether she was married.
Twenty minutes later, she entered his prison cell. He
described the incident as follows:
She came in to me. I mean, she came right in to me.
She told me not to worry, she wasn’t married. And
she put — she cupped her hand on my groin . . .
enough to excite me.

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

Page: 6 of 19

10493

Wood described his response:
I pushed her away on that, literally pushed her away.
. . .[I told her] “[t]his isn’t the time . . . . you need
to back off on this.”
Wood said that he was very hurt, largely by the fact that
Martin was potentially lying to him about whether she was
married.
After that incident, Wood tried to end the relationship but
Martin sought him out. She subjected him to aggressive pat
searches in front of other inmates on a number of occasions.
Wood asked another correctional officer to help him but Martin did not stop pursuing him.
After Wood terminated the relationship, Martin again
entered Wood’s prison cell and touched Wood in an inappropriate way. Wood described the incident as follows:
[Wood:] She told me to get on the wall. . . . I was
in my shorts, gym shorts, and she told me to get on
the wall. This was in my house. You could plainly
see, I had my T-shirt and my gym shorts on. And I
said, “I don’t have anything.” She started from my
sleeves coming down my shirt. She didn’t touch my
buttocks. She reached around into my shorts and
grabbed ahold of my penis and started to stroke it.
[Questioner:] How long did she do that?
[Wood:] Maybe a few seconds, you know. It was —
my mind’s flaring at that time.
[Questioner:] How did you end that?
[Wood:] I spun around and reached for her hand.

Case: 10-35300

09/04/2012

10494

ID: 8308320

DktEntry: 62-1

Page: 7 of 19

WOOD v. BEAUCLAIR

....
[Questioner:] Did you say anything to her?
....
[Wood:] . . . I expressed, you know, my dislike for
it. She did say that, “You know you want it.” I told
her I didn’t.
Martin continued to harass Wood. He did not want to report
Martin out of fear of retaliation.
Eventually, Wood decided he had to report the harassment.
He completed an inmate concern form and gave it to Sergeant
Lucile Townsend. Townsend’s superior, Lieutenant Lawanda
Thomason questioned Wood about the allegations. The next
day, Wood was transferred to a prison in Boise.
On February 27, 2004, Wood brought suit under 42 U.S.C.
§ 1983 alleging the following: (1) sexual harassment by Martin in violation of the Eighth Amendment; (2) repeated body
searches by Martin in violation of Wood’s privacy rights
under the Fourth Amendment; (3) the failure by the defendants to protect Wood from Martin in violation of the Eighth
Amendment; and (4) retaliation against Wood for reporting
grievances in violation of the First Amendment. On September 22, 2009, the district court issued a summary judgment
order that is the subject of this appeal.
The district court granted summary judgment to the defendants on the first incident of sexual harassment (Martin
entered Wood’s prison cell and cupped his groin), the second
incident (Martin entered Wood’s cell, reached her hand into
his gym shorts, and stroked his penis) and on Wood’s failure
to protect and retaliation claims. The district court permitted
the Eighth and Fourth Amendment claims based on a series
of aggressive, vindictive, and sexual pat searches Martin per-

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

Page: 8 of 19

10495

formed on Wood to proceed to trial. At trial, a jury found that
Wood’s allegations that Martin performed abusive pat
searches did not violate Wood’s Fourth or Eighth Amendment
rights. Wood does not appeal the jury’s verdict, but he appeals
the district court’s grant of summary judgment on his Eighth
Amendment sexual harassment claim and failure to protect
claim, and his First Amendment retaliation claim.
II.

Standard of Review

The panel reviews a grant or denial of summary judgment
de novo. Mark H. v. Hamamoto, 620 F.3d 1090, 1096 (9th
Cir. 2010). “Summary judgment is to be granted only if the
pleadings and supporting documents, viewed in the light most
favorable to the non-moving party, show that there is no genuine issue as to a material fact, and the moving party is entitled to judgment as a matter of law.” Legal Aid Servs. of
Oregon v. Legal Servs. Corp., 608 F.3d 1084, 1093 (9th Cir.
2010).
III.
(A)
(1)

Discussion

Wood’s Eighth Amendment Sexual Harassment
Claims
Legal Standards

[1] The Eighth Amendment prohibits cruel and unusual
punishment in penal institutions. Whether a specific act constitutes cruel and unusual punishment is measured by “the
evolving standards of decency that mark the progress of a
maturing society.” Hudson v. McMillian, 503 U.S. 1, 8
(1992).
[2] Sexual harassment or abuse of an inmate by a corrections officer is a violation of the Eighth Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In
the simplest and most absolute of terms . . . prisoners [have

Case: 10-35300

09/04/2012

10496

ID: 8308320

DktEntry: 62-1

Page: 9 of 19

WOOD v. BEAUCLAIR

a clearly established Eighth Amendment right] to be free from
sexual abuse . . . .”); see also Women Prisoners of the Dist.
of Columbia Dep’t of Corr. v. District of Columbia, 877 F.
Supp. 634, 665 (D.D.C. 1994) (“[U]nsolicited touching of . . .
prisoners’ [genitalia] by prison employees are ‘simply not part
of the penalty that criminal offenders pay for their offenses
against society’ ” (quoting Farmer v. Brennan, 511 U.S. 825,
834 (1994))), aff’d in part and vacated in part, 93 F.3d 910
(D.C. Cir. 1996).
In evaluating a prisoner’s claim, courts consider whether
“the officials act[ed] with a sufficiently culpable state of
mind” and if the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation. Hudson,
503 U.S. at 8.
(2)
(a)

Analysis
The First Incident of Sexual Harassment

Shortly after Wood and Martin argued about whether Martin was married, she entered his prison cell and placed her
hand on Wood’s groin. The district court relied on an Eighth
Circuit case, Ault v. Freitas, 109 F.3d 1335, 1338 (8th Cir.
1997), for the proposition that “welcome and voluntary sexual
interactions, no matter how inappropriate, cannot as a matter
of law constitute ‘pain’ as contemplated by the Eighth
Amendment.” The district court went on to conclude that
“under the standard established in Freitas . . . because Mr.
Wood had not ended the consensual relationship and Ms.
Martin’s touching of Mr. Wood’s groin was not ‘unwelcome
per se,’ ” Wood could not establish an Eighth Amendment
violation.
On appeal, Wood argues that in light of the institutional
setting and the power imbalance between prisoners and prison
guards, prisoners are incapable of consenting to sexual con-

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

Page: 10 of 19

10497

tact with a prison guard, and therefore, any sexual act between
the two is a per se violation of the Eighth Amendment.1
[3] Whether a prisoner can consent to a relationship with
a correctional officer is a matter of first impression in our circuit. Out-of-circuit courts have recognized that prisoners are
incapable of consenting to sexual relationships with a prison
official. Lobozzo v. Colorado Dep’t of Corr., 429 F. App’x
707, 711 (10th Cir. 2011) (stating, with no analysis, “[i]t is
uncontested that Lobozzo, an inmate, could not legally consent to sexual activity with Martinez, a guard”); Carrigan v.
Davis, 70 F. Supp. 2d 448 (D. Del. 1999) (concluding that “as
a matter of law . . . the consent defense is unavailable” to a
prison guard who engages in a sexual act with a prisoner);
Cash v. County of Erie, No. 04-cv-0182, 2009 WL 3199558,
at *2 (W.D.N.Y. Sept. 30, 2009).
The rationale underpinning these decisions rests primarily
on the pronounced dichotomy of control between prison
guards and prisoners. Prisoners have no control over most
aspects of their daily lives. They cannot choose what or when
to eat, whether to turn the lights on or off, where to go, and
what to do. They depend on prison employees for basic necessities, contact with their children, health care, and protection
from other inmates. See Carrigan, 70 F. Supp. 2d at 458-59;
1
Defendants contend that Wood waived this argument by failing to raise
it in the proceedings below. Defendants’ argument is not persuasive.
Wood’s response to the defendants’ motion for summary judgment in the
district court proceeding states: “[I]t is questionable whether Mr. Wood,
as an inmate in a state prison, even had the power to ‘consent’ to [Martin’s] touching.” Wood then points to Idaho law which criminalizes sexual
contact between a prison employee and a prisoner and correctly notes that
“[c]onsent is irrelevant because nowhere in the statute does it allow, nor
contemplate, that ‘consent’ of a prisoner is a defense to charges of sexual
contact by a guard.” In their reply, the defendants acknowledged this argument by Wood. They state “inmate Wood claims that Idaho Code § 186110 renders him incapable of consenting to a relationship in prison,
thereby barring what he characterizes as a ‘consent’ defense.” They then
go on to argue that consent is a valid defense and cite to Freitas.

Case: 10-35300

10498

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 11 of 19

WOOD v. BEAUCLAIR

see also Human Rights Watch Women’s Rights Project, All
Too Familiar: Sexual Abuse of Women in U.S. State Prisons
5 (1996) (hereinafter “All Too Familiar”) (documenting the
sexual abuse of prisoners and finding that “[i]n prison, correctional employees have nearly absolute power over the wellbeing of prisoners.”). The power disparity between prisoners
and prison guards is similar to that of an adult over a child or
a teacher over a student. At least one commentator likens the
relationship to that of an owner over a slave. See Brenda V.
Smith, Sexual Abuse of Women in United States Prisons: A
Modern Corollary of Slavery, 33 Fordham Urb. L.J. 571
(2006) (concluding that parallels exist between the prisonerguard and owner-slave relationships). Just as power inequities
between adults and minors, teachers and students, and owners
and slaves foster opportunities for sexual abuse, so too does
the prisoner-guard relationship. Indeed, sexual abuse in prison
is prolific. Id. (noting that sexual harassment in prison “is so
much a part of the power structure that it is almost invisible.”); Carrigan, 70 F. Supp. 2d at 458-61; Cash, 2009 WL
3199558 at *2; see also All Too Familiar, 407 n.13 (recognizing that prisoners “cannot meaningfully consent to sexual
relations with staff” and quoting the superintendent of the
Bedford Hills Correctional Facility who said: “Where you
have power over a person, [sex] cannot be consensual. . . .
You cannot be in the position of an inmate and make that kind
of decision. . . . Eventually, [sexual relations between an
inmate and a staff person] makes other people feel unsafe.”);
Laurie A. Hanson, Comment, Women Prisoners: Freedom
from Sexual Harassment – A Constitutional Analysis, 13 Golden Gate U. L. Rev. 667, 667 (1983) (hereinafter “Freedom
From Sexual Harassment”) (“Sexual relationships between
inmates and guards are the product of sexual exploitation and
cannot be defined as voluntary.”).
[4] We agree with the underlying rationale of these cases.
The power dynamics between prisoners and guards make it
difficult to discern consent from coercion. Even if the prisoner
concedes that the sexual relationship is “voluntary,” because

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

Page: 12 of 19

10499

sex is often traded for favors (more phone privileges or
increased contact with children) or “luxuries” (shampoo, gum,
cigarettes), it is difficult to characterize sexual relationships in
prison as truly the product of free choice. All Too Familiar,
102, 420 (describing an environment where prisoners engage
in sexual acts with staff in exchange for favorable treatment
or coveted items such as gum, cigarettes, and drugs and quoting one prisoner who commented “The women here will [perform sexual acts] for gum.”); see also Freedom from Sexual
Harassment, (noting that because prisoners often barter sex
for certain feelings of freedom, “even so-called ‘voluntary’
sexual activity must be viewed as coercive”).
We are aware of the cases that have held that consensual
sexual relations between a prisoner and a prison guard do not
give rise to an Eighth Amendment violation. See Ault v.
Freitas, 109 F.3d 1335, 1338 (8th Cir. 1997), Hall v. Beavin,
202 F.3d 268, 1999 WL 1045694, at *1 (6th Cir. 1999)
(unpublished decision) (finding no merit to plaintiff ’s Eighth
Amendment claim where the “evidence established that
[plaintiff] voluntarily engaged in a sexual relationship with
[defendant]”); Fisher v. Goord, 981 F. Supp. 140, 174
(W.D.N.Y. 1997) (stating that consensual sexual interactions
between a correction officer and an inmate do not constitute
cruel and unusual punishment under the Eighth Amendment).
In the leading Eighth Circuit case on this issue, Ault v.
Freitas, a male inmate2 and a female prison guard met in
2

Many of the cases involve female prison staff that perpetrate sexual
acts of violence against male inmates. According to a Bureau of Justice
Statistics report, of the 344 substantiated allegations of staff-on-inmate
sexual violence in federal and state prisons, 67% of the victims were male
inmates and 62% of the perpetrators were female staff. Allen J. Beck &
Paige M. Harrison, Bureau of Justice Statistics, U.S. Dep’t of Justice, Special Report: Sexual Violence Reported by Correctional Authorities, 2005,
at 1 (2006). At first blush, these numbers appear astounding. But given
that more than 93% of the prison population in the U.S. is male, male victims are actually underrepresented and female inmates are disproportionately likely to be sexually assaulted by guards. Federal Bureau of Prisons,
Quick Facts About the Bureau of Prisons, http://www.bop.gov/news/
quick.jsp#1, (last visited June 11, 2012).

Case: 10-35300

10500

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 13 of 19

WOOD v. BEAUCLAIR

secluded areas of the prison where they would kiss, hug, and
talk. 109 F.3d at 1336. At the guard’s request, the inmate
wrote her numerous “hot sexy” letters. Id. After a bench trial,
the trial court found in favor of the guard on the inmate’s sexual harassment claim. Id. The Eighth Circuit affirmed, concluding that there was “ample evidence supporting the trial
court’s finding that their relationship was consensual in the
freest sense of the word.” Id. at 1339. Because the interactions
were welcome and voluntary, the court concluded the conduct
did not give rise to an Eighth Amendment violation. Id.
[5] We first question whether Freitas is even applicable to
this case. In Freitas, the district court conducted a bench trial
on the prisoner’s allegations. The trial court made a factual
finding that the relationship was consensual, and the court of
appeals reviewed that finding for clear error. Freitas, 109
F.3d at 1338. Here, the state seeks summary judgment on its
position that because the relationship was consensual, so too
was Martin’s conduct. Unlike in Freitas, there has been no
factual finding that the relationship was consensual, and in
fact, the record reveals a clear dispute about whether Wood
consented to Martin’s advances—Wood’s statements and conduct demonstrate objective manifestations of his unwillingness to engage in any type of sexual act. The district court
erred when it decided, as a matter of law, that Wood, who had
never engaged in anything but touching and kissing Martin,
consented to Martin’s bold sexual advances. Moreover, we
find it problematic that Freitas utterly failed to recognize the
factors which make it inherently difficult to discern consent
from coercion in the prison environment.
[6] While we understand the reasons behind a per se rule
that would make prisoners incapable of legally consenting to
sexual relationships with prison officials, we are concerned
about the implications of removing consent as a defense for
Eighth Amendment claims. On the other hand, allowing consent as a defense may permit courts to ignore the power
dynamics between a prisoner and a guard and to characterize

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

Page: 14 of 19

10501

the relationship as consensual when coercion is clearly
involved.3 We believe the better approach is a rule that explicitly recognizes the coercive nature of sexual relations in the
prison environment. Therefore, when a prisoner alleges sexual
abuse by a prison guard, we believe the prisoner is entitled to
a presumption that the conduct was not consensual. The state
then may rebut this presumption by showing that the conduct
involved no coercive factors. We need not attempt to exhaustively describe every factor which could be fairly characterized as coercive. Of course, explicit assertions or
manifestations of non-consent indicate coercion, but so too
may favors, privileges, or any type of exchange for sex.
Unless the state carries its burden, the prisoner is deemed to
have established the fact of non-consent.
[7] In this case, Wood has alleged sexual abuse by Martin
and he is thus entitled to a presumption that the conduct was
not consensual. The burden then shifts to the state to show
that the conduct was not coercive. This the state cannot do. As
noted above, Wood alleges that he and Martin were in a consensual relationship that involved hugging and kissing. Just
3

Several district court cases illuminate this point. In Edge v. Ferrell,
McGregor v. Jarvis, and Stubbs v. DeRose, the district courts concluded
that the prisoner consented to the sexual relationship, notwithstanding the
prisoner’s receipt of privileged items. Edge, No. 06-0710-WS-C, 2008
WL 942038, at *1 (S.D. Ala. Apr. 7, 2008) (characterizing as “voluntary”
a prisoner’s decision to allow a correctional officer to perform oral sex on
him in exchange for the prison warden’s promise of visitation privileges
for the prisoner’s girlfriend (a former correctional officer herself));
McGregor, No. 9:08-CV-770 (GLS/RFT), 2010 WL 3724133, at *1
(N.D.N.Y. Aug. 20, 2010) (determining that a prison guard’s relationship
with a prisoner “appear[ed] by all accounts . . . [to be] consensual” even
though the prisoner received privileges from the guard such as unfettered
access to the phone, cigarettes, and marijuana); Stubbs, No. 3:CV-03-2362
2007 WL 776789, at *7 (M.D. Pa. March 12, 2007) (describing the prisoner’s receipt of luxuries from the prison chaplain as a “substantial benefit[ ]
. . . [that] ‘other inmates didn’t get’ ”). Trading sex for favors in the prison
context is undoubtedly a form of coercion, but courts have failed to recognize this, instead characterizing the relationships as entirely voluntary.

Case: 10-35300

09/04/2012

10502

ID: 8308320

DktEntry: 62-1

Page: 15 of 19

WOOD v. BEAUCLAIR

before the alleged incident, Wood and Martin got into a fight
and he told her to “back off” and that they had to “stop” seeing each other for a while. Wood’s objective conduct demonstrates non-consent and the state cannot overcome its burden.
Wood has thus established non-consent for the purposes of
surviving summary judgment.
[8] We therefore reverse the district court’s determination
that Wood cannot state an Eighth Amendment claim and
remand for a trial on the factual issues alleged in Wood’s
complaint.
(b)

The Second Incident of Sexual Harassment

Wood alleges that after he terminated their relationship,
Martin entered his prison cell, reached her hand into his gym
shorts, and stroked his penis. The district court granted summary judgment to the state on the second alleged incident of
sexual abuse, concluding that both the subjective and objective elements necessary for an Eighth Amendment violation
were lacking.
(i)

The Subjective Prong

The district court found “no evidence to support the conclusion that Ms. Martin acted maliciously and with the intent to
inflict harm.” Instead, wrote the district court, Martin perpetrated the act in an “attempt to persuade [Wood] to resume the
relationship.”
The “malicious and sadistic” standard arose out of “the
need to maintain or restore discipline” inside the prison. Hudson, 503 U.S. at 6 (internal quotation omitted). When a prison
disturbance occurs, prison officials must make “decisions ‘in
haste, under pressure, and frequently without the luxury of a
second chance.’ ” Id. (quoting Whitley v. Albers, 475 U.S.
312, 320 (1986)). In these situations, prison officials are “accorded wide-ranging deference” and therefore, prisoners

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

Page: 16 of 19

10503

alleging excessive force must show that the force was applied
“maliciously and sadistically to cause harm.” Id.
[9] But sexual contact between a prisoner and a prison
guard serves no legitimate role and “is simply not ‘part of the
penalty that criminal offenders pay for their offenses against
society.’ ” Farmer, 511 U.S. at 834. Where there is no legitimate penological purpose for a prison official’s conduct,
courts have “presum[ed] malicious and sadistic intent.” Giron
v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999);
see also Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.
1997).
[10] Here, Martin was not attempting to discipline Wood
or quell a prison riot, but instead acted for her own gratification. Martin’s coercive sexual actions served no valid objective and we agree with the Tenth Circuit that in such cases,
the conduct itself constitutes sufficient evidence that force
was used “maliciously and sadistically for the very purpose of
causing harm.” Giron, 191 F.3d at 1290 (quoting Whitley, 475
U.S. at 320)).
(ii)

The Objective Prong

[11] The district court found that Wood suffered no “specific psychological or physical harm” as a result of the incident. However, there is no requirement that the plaintiff
produce evidence of injury; “[r]ather, the only requirement is
that the officer’s actions be ‘offensive to human dignity.’ ”
Schwenk, 204 F.3d at 1196.
[12] Numerous courts have held that sexual harassment by
a prison guard can constitute an Eighth Amendment violation.
In Berry v. Oswalt, a female prisoner alleged that a male
guard “had attempted to perform nonroutine patdowns on her,
had propositioned her for sex, had intruded upon her while
she was not fully dressed, and had subjected her to sexual
comments.” 143 F.3d 1127, 1131 (8th Cir. 1998). A jury

Case: 10-35300

10504

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 17 of 19

WOOD v. BEAUCLAIR

found for the prisoner and the guard challenged the verdict on
appeal arguing that the prisoner could not establish the objective element necessary for an Eighth Amendment violation.
Id. The Eighth Circuit upheld the verdict stating that it was
“within the jury’s discretion to find that [the guard’s] alleged
harassing behavior was ‘harmful enough,’ to be a violation of
the Eighth Amendment.” Id. at 1133.
In Watson v. Jones, two male inmates alleged that a female
correctional officer routinely “fondled them during pat-down
searches” in a two-month period. 980 F.2d 1165, 1165 (8th
Cir. 1992). The Eighth Circuit reversed the district court’s
grant of summary judgment to the correctional officer and
concluded that the allegations could state a constitutional
claim. Id.
In Calhoun v. DeTella, prison guards “purposefully
demeaned and sexually harassed [the plaintiff-prisoner] while
strip searching him in front of female officers.” 319 F.3d 936,
939 (7th Cir. 2003). The district court dismissed the complaint for failure to state a claim but the Eighth Circuit
reversed concluding that the strip search was conducted “in a
manner designed to demean and humiliate” the inmate and,
thus, sufficiently stated an Eighth Amendment claim. Id. at
940.
[13] These decisions and others comport with the view
that, at its core, the Eighth Amendment protects “the basic
concept of human dignity” and forbids conduct that is “so
totally without penological justification that it results in the
gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S.
153, 182-83 (1976). We have previously held that a sexual
assault on a prisoner by a prison guard is always “deeply
‘offensive to human dignity’ ” and is completely void of
penological justification. Schwenk, 204 F.3d at 1196. We thus
conclude that Wood’s allegations are sufficient to state an
Eighth Amendment claim and we reverse the district court’s
grant of summary judgment on this claim.

Case: 10-35300

09/04/2012

ID: 8308320

DktEntry: 62-1

WOOD v. BEAUCLAIR

(B)

Page: 18 of 19

10505

Wood’s Other Claims

[14] Wood argues that prison officials acted with deliberate indifference to his safety in violation of the Eighth
Amendment because they failed to protect him from Martin.
Deliberate indifference requires a showing that “the official
knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer,
511 U.S. at 837. The evidence reveals that the prison officials
counseled Martin on the proper boundaries she should maintain with inmates, but there is no evidence that the supervisory defendants were on notice that Martin presented a
substantial risk to Wood. Wood admitted that he never disclosed Martin’s actions to prison officials until long after the
incidents at issue in this case occurred. We therefore affirm
the district court’s grant of summary judgment to the defendants on Wood’s deliberate indifference claim.
[15] Wood next argues that prison officials retaliated
against him for filing a grievance in violation of his First
Amendment rights. To establish a claim for retaliation, a prisoner must show that a prison official took some adverse
action against an inmate because of that prisoner’s protected
conduct, that the action chilled the inmate’s exercise of his
constitutional rights, and the action did not advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005); see also Rizzo v. Dawson, 778 F.2d
527, 531-32 (9th Cir. 1985) (recognizing a First Amendment
right of prisoners to be free from prison transfers or reassignments made in retaliation for filing grievances). We agree
with the district court that Wood’s “allegation that Defendants
failed to protect him from Defendant Martin is at odds with
[his] objection to being transferred to a different facility so
that Defendant Martin would not be able to have further contact with him.” We also agree with the district court that the
“transfer reasonably advanced a legitimate correctional

Case: 10-35300

10506

09/04/2012

ID: 8308320

DktEntry: 62-1

Page: 19 of 19

WOOD v. BEAUCLAIR

goal—to distance Plaintiff from two female officers who were
fraternizing with him contrary to IDOC policy.” Thus, we
affirm the district court’s decision to grant summary judgment
to the defendants on Wood’s retaliation claim.
IV.

Conclusion

We reverse the district court’s grant of summary judgment
on Wood’s Eighth Amendment sexual harassment claims. We
affirm the district court’s decision to grant summary judgment
on Wood’s deliberate indifference and retaliation claims.
Wood shall recover the costs of his appeal.
REVERSED in part, AFFIRMED in part and REMANDED
for trial.