     Case: 13-30825      Document: 00512597028         Page: 1    Date Filed: 04/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 13-30825                               FILED
                                  Summary Calendar                         April 15, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
RICKY GIPSON,

                                                 Plaintiff-Appellant

v.

TIM WILKINSON; VIRGIL LUCAS; TOMMY GLOVER; JAY TIM MORGAN;
WARDEN STEVENS; MILDRED MILTON; MR. JOHNSON; MR. SANDERS;
PETER FLOWERS; MR. MAC; JIMMY TURNER; ALFONZO PACHECO;
PAT   THOMAS;    INSURANCE    COMPANY   OF    CORRECTIONS
CORPORATION OF AMERICA OF TENNESSEE, L.L.C.; WINN
CORRECTIONAL CENTER; PRISON ENTERPRISE GARMENT FACTORY,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-524


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ricky Gipson, Louisiana prisoner # 325027, seeks to appeal the dismissal
of his 42 U.S.C. § 1983 complaint, in which he alleged that he was subjected to
strip and visual body cavity searches without reasonable justification in


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-30825     Document: 00512597028     Page: 2   Date Filed: 04/15/2014


                                  No. 13-30825

violation of the Fourth Amendment. Gipson also alleged that his constitutional
rights were violated because he was sexually harassed by a homosexual prison
official, he was exposed to infectious diseases during the searches, he was
exposed to toxic fumes, and his prison grievances were denied. The district
court dismissed the complaint as frivolous and for failure to state a claim,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).         Accordingly, our
review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      We first address Gipson’s claims that the searches here were
unreasonable because they were conducted in the absence of any penological
justification. Under the Fourth Amendment, “searches or seizures conducted
on prisoners must be reasonable under all the facts and circumstances in which
they are performed.” Elliott v. Lynn, 38 F.3d 188, 190-91 (5th Cir. 1994)
(internal quotation and citation omitted). In analyzing the reasonableness of
the searches, the district court was required to balance the need for the
searches against the invasion of personal rights that the searches entailed by
considering the scope of the intrusions, the manner in which they were
conducted, the justification for them, and the places in which they were
conducted. See Watt v. City of Richardson Police Dep’t, 849 F.2d 195, 196-97
(5th Cir. 1988). Accepting Gipson’s allegations as true, which we must, see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), there was no justification,
penological or otherwise, for the searches conducted in this case. Dismissal for
failure to state a claim was premature and thus inappropriate because the
facts Gipson alleges could entitle him to relief for a Fourth Amendment
violation.   See Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir. 1999).
Accordingly, we vacate the dismissal as frivolous and for failure to state a claim
of Gipson’s Fourth Amendment challenge to the strip and body cavity searches
and remand the case for further proceedings.



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                                 No. 13-30825

      Gipson’s sexual harassment claim fails because verbal abuse and
threatening language and gestures do not give rise to a cause of action under
§ 1983. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); McFadden v.
Lucas, 713 F.2d 143, 146 (5th Cir. 1983). His claim regarding the conditions
of the room in which he was searched likewise fails because he has failed to
allege facts showing the prison officials acted with deliberate indifference.
Helling v. McKinney, 509 U.S. 25, 35 (1993); Burleson v. Texas Dep’t of
Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004). In particular, Gipson
alleges only that he was searched in a small, unsanitary room with prisoners
infected with infectious diseases, which exposed him to those diseases. Finally,
Gipson has abandoned his claims regarding exposure to toxic fumes and the
prison grievance procedure because he has failed to brief them. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      Gipson’s motion for leave to file a supplemental brief is granted.
      AFFIRMED IN PART, VACATED AND REMANDED IN PART;
MOTION GRANTED.




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