Cox v. McVickers

Filing 39

MEMORANDUM OPINION AND ORDER: It is ORDERED that the 27 Motion for Partial Summary Judgment and the 30 Motion to Strike are DENIED as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 1/21/2014. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
KAITLIN LAUREN COX,
Plaintiff,
v.
JOSHUA GLENN McVICKERS,
Defendant.

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CASE NO. 1:12-CV-911-WKW

MEMORANDUM OPINION AND ORDER
Before the court are two motions: (A) Plaintiff’s motion for partial summary
judgment (Docs. # 27, 28, 29), and (B) Plaintiff’s motion to strike Defendant’s
motion to dismiss (Doc. # 30). Defendant, who is proceeding pro se, has not
responded to either motion. For the following reasons, Plaintiff’s motions are due
to be denied.
I. DISCUSSION
A.

Motion for Partial Summary Judgment
While Plaintiff was in custody in Dale County Jail serving a sentence for

revocation of her probation, Defendant, a jailer, engaged in sexual misconduct with
Plaintiff. Plaintiff alleges that Defendant took her to a private room, kissed her,
touched her breast, and required her to perform oral sex on him. At other times,
while Plaintiff remained in her cell, Defendant requested that Plaintiff undress
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while he watched or while she filmed herself. Defendant was later fired and
pleaded guilty to custodial sexual misconduct.

On the basis of these events,

Plaintiff has sued Defendant for multiple claims arising under 42 U.S.C. § 1983
and state law.
Plaintiff seeks partial summary judgment on (1) her Fourteenth Amendment
substantive due process claims for infringement of rights to bodily integrity and
privacy, (2) her Fourth and Eighth Amendment claims for infringement of rights to
be free from excessive force and cruel and unusual punishment, and (3) her state
law claim for assault and battery. (See Doc. # 28, at 3–8.) Upon consideration of
Plaintiff’s brief and evidentiary submissions, the court concludes that Plaintiff has
failed to meet her burden under Federal Rule of Civil Procedure 56(a) of showing
that “there is no genuine dispute as to any material fact and that [she] is entitled to
judgment as a matter of law.”
1.

Disputed Issue of Fact: Consent

Although Defendant has pleaded guilty to the criminal offense of custodial
sexual misconduct, and while he admits that he did what Plaintiff alleges that he
did, (see Docs. # 29-3, 29-4), there is a genuine dispute as to whether Plaintiff
acquiesced to Defendant’s unlawful conduct.

Plaintiff claims that Defendant

“forced” her to (1) perform a sex act upon him, (2) allow him to touch and kiss her,
and (3) strip to her underwear while he watched. (Doc. # 29, at ¶¶ 5–6.) She
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testifies that she “felt like [she] had to do what [Defendant] asked [because she]
was an inmate under his control.” (Doc. # 29, at ¶ 7.)
But viewing the evidence in the light most favorable to the non-movant, the
court finds that it is possible that a reasonable factfinder could conclude that
Plaintiff consented to, and maybe even invited, some or all of Defendant’s
misconduct. For instance, in her voluntary statement prepared for the Dale County
Sheriff’s Investigator, Plaintiff explained that she kissed Defendant and performed
fellatio “for snack[s], pills, [and] whatever else [she] wanted.” (Doc. # 29-1, at 1.)
In Defendant’s statement for the Dale County Sheriff’s Investigator, he explains
that Plaintiff initiated contact with him by writing notes to him and offering “to
show [him] how much she liked [him]” in exchange for favors like snacks, phone
privileges, cigarettes, and Xanax. (Doc. # 29-3, at 1–2.) Thus, Plaintiff’s affidavit
testimony that she was compelled to submit to Defendant’s advances is
contradicted by other evidence she has submitted.
The court has considered Plaintiff’s argument that consent is no defense
because inmates are legally incapable of consenting to sex with prison authority
figures, (see Doc. # 29, at 11), but the court is unconvinced that such a defense is
wholly unavailable to Defendant. In support of her argument, Plaintiff solely relies
on this court’s statement in Bonner v. Chambers County, Case No. 3:04-cv-1229WKW (M.D. Ala. July 26, 2007) (Unpublished Mem. Op. & Order on Defs.’ Mot.
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for Summ. J.), that consent is no defense to an alleged sexual assault because
prison life is “nonconsensual” in nature. Id. at 34. In that opinion, the court cited
Ala. Code § 14-11-31, the statute criminalizing custodial sexual misconduct, for its
provision that “consent . . . shall not be a defense to a prosecution” for that crime.
Section 14-11-31, however, eliminates the availability of the defense of consent in
a state criminal proceeding – not in a civil proceeding concerning the same sexual
misconduct. Furthermore, the facts in Bonner were much more egregious than the
events underlying Plaintiff’s claims,1 and the procedural posture of Bonner is also
distinguishable. That is, in Bonner, the defendants moved for summary judgment,
and the court viewed the facts in the light most favorable to the plaintiff.
Additionally, the court is aware of persuasive authority that a jury should
decide the issue of consent in the context of custodial sexual assault. In Giron v.
Corr. Corp. of Am., 191 F.3d 1281 (10th Cir. 1999), an inmate-plaintiff alleged
that she was raped by a correctional officer-defendant, but the defendant
characterized their encounter as consensual. Id. at 1284. The plaintiff sued the
defendant for state law claims of assault, battery, false imprisonment, and
intentional infliction of emotional distress as well as under § 1983 for a violation
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Specifically, the female plaintiff whose Eighth Amendment claims were at issue under
the consent defense alleged that two different jail officers subjected her to repeated, daily sexual
assaults for months. The defendants argued that the plaintiff consented, but there was no
evidence that the plaintiff initiated contact with the defendants or invited their sexual advances.
Rather, the plaintiff testified that she found it easier to comply than to resist. Moreover, the court
found the consent defense to be disingenuous because defendants offered plaintiff, an addict,
cocaine in exchange for sex.
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of her Eighth Amendment right to be free from excessive force. Id. at 1284. The
jury returned a verdict for the defendant. Id. at 1285. The Tenth Circuit found no
reversible error in the district court’s jury instructions on consent, id. at 1288,
where the consent instructions related to both the § 1983 claim and the tort claims,
id. at 1287.2
When viewed in the light most favorable to Defendant, the disputed issue of
Plaintiff’s willingness versus coercion to touch Defendant, be touched by
Defendant, and to undress for Defendant precludes summary judgment in
Plaintiff’s favor. In the absence of binding legal authority negating the possibility
that Plaintiff’s consent is a defense or mitigating factor available to Defendant,
partial summary judgment is due to be denied.
2.

Other Legal Questions

Even if Plaintiff can establish that she did not consent or could not have
consented because of her status as an inmate, Plaintiff has failed to show her
entitlement to judgment as a matter of law on her substantive due process claims,
which require a showing that Defendant’s conduct shocks the contemporary
conscience. See Lumley v. City of Dade City, Fla., 327 F.3d 1186 (11th Cir. 2003)
2

Giron reversed judgment on the § 1983 excessive force claim, however, on different
grounds – specifically, that the district court’s instructions erroneously required the plaintiff to
prove that the defendant maliciously forced her to have sex with him. Id. at 1290 (“Since
[plaintiff] had to prove that [defendant] forced her to have sex with him, she should not have
faced the additional hurdle of showing that the coercion involved malice under a test primarily
designed for a prison guard’s use of force to maintain order.”).
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(“As a general rule, to prevail on a claim of a substantive due-process violation, a
plaintiff must prove that a defendant’s conduct shocks the conscience.”) The
Supreme Court insists upon this high standard and has repeatedly advised against
constitutionalizing torts as substantive due process claims. See, e.g., County of
Sacremento v. Lewis, 523 U.S. 833, 846–48 (1998). Plaintiff’s motion makes no
argument that the Defendant’s conduct rises to the conscience-shocking level.3
Plaintiff has also failed to show her entitlement to judgment in her favor as
to her bodily privacy claim because the privacy infringement at issue here
(Defendant’s repeated requests that Plaintiff strip to her underwear) may not be
sufficient to substantiate a privacy claim under the substantive component of the
Due Process Clause. The Eleventh Circuit “recognizes that prisoners retain a
constitutional right to bodily privacy,” but it examines the scope of that right on “a
case-by-case basis.” Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993).
The Circuit has recognized violations of that right in only two contexts: compelled
exposure of the genitals in the presence of the opposite sex and compelled
masturbation. See Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006);
Fortner, 983 F.2d at 1030. Defendant’s misconduct is offensive and invasive of
Plaintiff’s privacy, but it is not clear under Eleventh Circuit precedent that his
misconduct gives rise to a Fourteenth Amendment privacy claim.
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And, in view of the disputed issue of fact in this case, such a showing would be difficult
to make prior to a finding that Defendant forced Plaintiff to perform oral sex on him.
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Consequently, for these additional reasons, Plaintiff’s motion for partial
summary judgment is due to be denied as to her Fourteenth Amendment bodily
integrity and privacy claims.
B.

Motion to Strike
Plaintiff requests that the court strike Defendant’s motion to dismiss. The

court denied Defendant’s motion to dismiss (see Doc. # 32), but made no ruling
upon Plaintiff’s motion to strike it. Because Plaintiff offers no legal basis to
support her motion, the motion to strike is due to be denied.
II. CONCLUSION
It is ORDERED that the motion for partial summary judgment (Doc. # 27)
and the motion to strike (Doc. # 30) are DENIED.
DONE this 21st day of January, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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