                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-6306


JAMEY L. WILKINS,

                Plaintiff - Appellee,

          v.

LIEUTENANT UPTON; GERALD BRANKER,

                Defendants - Appellants,

          and

OFFICER THOMPSON; EBONY MUZONE,

                Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:12-ct-03050-BO)


Submitted:   January 29, 2016               Decided:   March 2, 2016


Before NIEMEYER, MOTZ, and HARRIS, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.


Roy Cooper, North Carolina Attorney General, Kimberly D. Grande,
Assistant   Attorney  General,  Raleigh,  North   Carolina,  for
Appellants. Michele Luecking-Sunman, NCPLS, INC., Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Robert Upton and Gerald Branker appeal from the district

court’s order denying their motion for summary judgment premised

on qualified immunity in Jamey Lamont Wilkins’ 42 U.S.C. § 1983

(2012) civil rights action. We vacate and remand with instructions

that the district court enter judgment in favor of Branker and

Upton.

                                   I.

     Wilkins is an inmate in the custody of the North Carolina

Department of Public Safety and has been in such custody since

July 2000.    In 2010 and 2011, Wilkins was housed in a unit for

inmates   undergoing   inpatient   mental   health   care—Unit   Six—at

Central Prison in Raleigh, North Carolina.     From April 2010 until

June 2011, Wilkins was repeatedly sexually abused by Officer

Thompson—who was then employed as a correctional officer and worked

in Unit Six—at Central Prison.

     During visits to Wilkins’ cell in Unit Six, Thompson learned

of Wilkins’ concern for his mother—who had been diagnosed with

breast cancer—and his vulnerable state of mind.        Thompson wrote

letters to Wilkins and brought them to his cell and asked Wilkins

to masturbate in front of him.      Despite Wilkins’ initial refusal

to do so, Thompson brought pornographic materials to Wilkins and

repeatedly asked Wilkins to masturbate so Thompson could watch.

Thompson promised Wilkins money, help to get out of prison, and

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help for Wilkins’ mother.     After repeated instances of sexual

harassment and several gifts from Thompson, Wilkins felt as though

he had no choice but to masturbate in front of Thompson.       From

April 2010 to June 2011, Wilkins was repeatedly sexually abused by

Thompson; the abuse consisted of multiple acts of masturbation,

oral sex, and anal sex.   Thompson brought contraband to Williams,

including pornographic magazines, an “ecstasy pill,” drugs, money,

and phones.   Wilkins used the phones to talk with his mother and

with Thompson and accepted contraband from Thompson because he

would “do anything” to talk with his mother.    Wilkins felt he had

no choice but to comply with Thompson’s sexual demands because he

feared losing direct access to his mother, the possibility of going

home, and the gifts from Thompson.    Wilkins attempted to report

the abuse to two non-Defendant officials at Central Prison at

unspecified times but was not successful.

     Following an internal investigation regarding contraband at

Central Prison, Thompson resigned from employment on June 8, 2011.

The next day, a Prison Rape Elimination Act * (PREA) investigation

was initiated by a non-Defendant unit manager after Wilkins gave

a note to a non-Defendant lieutenant stating that he wished to

speak with her about staff sexual misconduct.    During the course




     * See Prison Rape Elimination Act of 2003, Pub. L. No. 108-79,
117 Stat. 972 (codified at 42 U.S.C. §§ 15601-09 (2012)).

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of the PREA investigation, Wilkins identified Thompson as the

person who offered him money if he masturbated while Thompson

watched, promised him help and gave him a cellular phone number,

and performed oral sex on and masturbated him in Unit Six.                  After

conducting additional interviews, the unit manager concluded that

Wilkins’ allegations against Thompson could not be substantiated.

     Branker served as the warden of Central Prison from July 2007

through November 2011.       He became aware of Wilkins’ allegations

against   Thompson   following     Thompson’s        resignation.     Branker,

however, never witnessed Thompson act “unprofessionally” toward

Wilkins at any time.       Upton has been employed as a lieutenant at

Central Prison since 2007.          He also became aware of Wilkins’

allegations against Thompson following Thompson’s resignation.

Upton also never witnessed Thompson act “unprofessionally” toward

Wilkins at any time.       Branker and Upton also both aver without

contradiction   in   the    evidence       that   Thompson    had   never    been

investigated for or disciplined for “undue familiarity” with an

inmate or for “PREA related conduct.”

     Wilkins filed an amended § 1983 complaint against Thompson,

Branker, and Upton.    As relevant here, Wilkins’ complaint asserted

Fourth and Eighth Amendment claims against Branker and Upton for

deliberate   indifference     to   the      sexual    abuse   and   harassment

perpetrated by Thompson—an employee under their supervision—and

for facilitating “the violation of his right to be free from cruel

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and unusual punishment, sexual abuse, unwanted touching, verbal

abuse, threats, and for violations of his rights to privacy and

bodily integrity.”     Branker and Upton moved for summary judgment

on the basis of qualified immunity, and the district court denied

the motion.    Branker and Upton noted a timely appeal.          We have

jurisdiction to review the district court’s order.         See Danser v.

Stansberry, 772 F.3d 340, 344-45 (4th Cir. 2014).

                                    II.

     “We review de novo the denial of a motion for summary judgment

asserting qualified immunity.”       Id. at 345.   “Summary judgment in

such cases should be granted when, viewing the facts in the light

most favorable to the nonmoving party, there is no genuine issue

of material fact and judgment for the moving party is warranted as

a matter of law.”    Id.

     “The doctrine of qualified immunity ‘balances two important

interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.’”       Id. (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)).    Qualified immunity is an affirmative defense to

liability   under   § 1983   and   shields   government   officials   from

liability for civil damages as long as “their conduct does not

violate clearly established statutory or constitutional rights of



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which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).

       In     reviewing     a    district       court’s    decision    rejecting    a

defendant’s assertion of qualified immunity, we apply the analysis

set forth in the Supreme Court’s decision Saucier v. Katz, 533

U.S. 194 (2001), as modified by the Court’s later decision in

Pearson. The holding in Saucier requires a two-step approach under

which a court must ask first whether the facts, viewed in the light

most favorable to the plaintiff, show that the official’s actions

violated a constitutional right, and, second, whether the right

alleged to have been violated was clearly established at the time

the violation occurred, such that a reasonable person would have

known that his conduct was unconstitutional.                 Saucier, 533 U.S. at

201.    As a result of Pearson, courts may consider the steps out of

this order in light of the circumstances of the particular case at

hand.       Pearson, 555 U.S. at 236.

       In this case, our analysis is focused on the first prong of

this    test,     namely,       whether    Wilkins    established      for   summary

judgment       purposes         that   Branker      and    Upton      violated     his

constitutional rights.

       To succeed under § 1983 on a claim for a violation of the

Eighth      Amendment,    an      inmate    must   “show    both   (1)   a   serious

deprivation of a basic human need; and (2) deliberate indifference

to prison conditions on the part of prison officials.”                    Strickler

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v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (internal quotation

marks omitted).     Not every injury suffered by a prisoner, however,

“translates into constitutional liability for prison officials.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994).               “Only extreme

deprivations are adequate to satisfy” this objective component.

De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003).               To

demonstrate such an extreme deprivation, the inmate must show “a

serious or significant physical or emotional injury resulting from

the challenged conditions or demonstrate a substantial risk of

such serious harm resulting from the prisoner’s exposure to the

challenged conditions.”       Odom v. S.C. Dep’t of Corr., 349 F.3d

765, 770 (4th Cir. 2003) (internal quotation marks omitted).

      “Deliberate indifference is a very high standard—a showing of

mere negligence will not meet it.”             Parrish ex rel. Lee v.

Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (internal quotation

marks omitted).     A prison official is deliberately indifferent to

a substantial risk of harm to an inmate if that official “knows of

and disregards” the risk.      Farmer, 511 U.S. at 837.     To be liable

under the deliberate indifference standard, “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.”    Parrish, 372 F.3d at 302 (internal quotation

marks omitted).     “A prison official’s subjective actual knowledge

can   be   proven   through   circumstantial    evidence   showing,   for

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example,   that   the    substantial       risk    of    [sexual     assault]   was

longstanding, pervasive, well-documented, or expressly noted by

prison officials in the past, and the circumstances suggest that

the defendant-official being sued had been exposed to information

concerning the risk and thus must have known about it.”                   Makdessi

v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation

marks omitted).     Beyond such actual knowledge, the prison official

“must also have recognized that his actions were insufficient to

mitigate the risk of harm to the inmate.”               Iko v. Shreve, 535 F.3d

225, 241 (4th Cir. 2008) (internal quotation marks omitted).

     Additionally, “[t]he protections of the Fourth Amendment are

triggered when an individual seeking refuge under the [] Amendment

has a legitimate expectation of privacy in the invaded place or

the item seized.”       Doe v. Broderick, 225 F.3d 440, 450 (4th Cir.

2000)   (internal       quotation    marks        omitted).          “A legitimate

expectation of privacy exists when the individual seeking Fourth

Amendment protection maintains a subjective expectation of privacy

in the area searched that society is willing to recognize as

reasonable.”      Id.    (internal   quotation          marks,    alteration,   and

ellipsis omitted).       In this Circuit, an inmate’s right to bodily

privacy in prison encompasses the involuntary exposure of his

genitals in the presence of the opposite sex.                    See Lee v. Downs,

641 F.2d 1117, 1119 (4th Cir. 1981).                     The Eighth Amendment,

however,   stands       as   the    primary       constitutional        limitation

                                       9
associated with an inmate’s bodily integrity beyond this limited

privacy right.    See, e.g., Hudson v. Palmer, 468 U.S. 517, 530

(1984).

     For supervisory prison officials to be held liable under

§ 1983    for    constitutional      injuries      inflicted     by   their

subordinates, an inmate must establish that:            (1) the supervisor

had actual or constructive knowledge that his subordinate was

engaged in conduct that posed a “pervasive and unreasonable” risk

of constitutional injury; (2) the supervisor’s response to this

knowledge was so inadequate as to show “deliberate indifference or

tacit authorization” of the offensive practices; and (3) there was

an “affirmative causal link” between the supervisor’s inaction and

the particular constitutional injury suffered.          Shaw v. Stroud, 13

F.3d 791, 799 (4th Cir. 1994).       Supervisory officials may not be

held liable for the unconstitutional conduct of their subordinates

under a theory of respondeat superior.            Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009).

                                   III.

                                    A.

     After   review   of   the   record   and   the   parties’   briefs,   we

conclude there is no evidence in the record that Branker and Upton

had any personal involvement in the sexual harassment and abuse of

Wilkins or were aware of any substantial risk Thompson posed to

Wilkins, such that they were liable to Wilkins for violations of

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the Eighth Amendment.        The record makes clear that Wilkins did not

identify Branker and Upton has having been “involved in” his sexual

abuse,   and    it    undisputed   that      no   person   reported      Thompson’s

behavior to or abuse of Wilkins (or any allegations regarding such

behavior   or    abuse)     to   Branker     or   Upton    prior    to   Thompson’s

resignation.

      In rejecting Branker’s and Upton’s request for qualified

immunity, the district court relied on Wilkins’ assertions that,

despite his attempts to report the assaults, Branker and Upton

took “no action” to ensure that he had access to an “effective”

reporting system, to forbid Thompson from going into areas of Unit

Six where he was not assigned, or to ensure that Thompson had no

unsupervised access to Wilkins.            On the record evidence, however,

we conclude there was no basis for Branker and Upton to take any

steps to prevent Thompson’s unsupervised access to Wilkins on Unit

Six or take unspecified steps to ensure some “effective” system

for reporting his abuse of Wilkins because Branker and Upton had

no   knowledge       of   Thompson’s   actions     prior    to     Wilkins’   post-

resignation complaint or any basis to believe that Thompson posed

a risk of harm to Wilkins.

      The district court’s order also relies on its conclusion that

there were “considerable and known problems” within the mental

health unit pertaining to supervision and that sexual assaults in

prison are “widely prevalent and well known.” The record evidence,

                                        11
however, provides no support for such conclusions in this case.

There is no indication from the record that sexual assaults or a

risk thereof was prevalent or even extant at Central Prison.

Additionally,     although      the    record        contains   an   undated      report

addressing      medical    and    mental            health   care    practices      and

operational practices of the mental health unit within Central

Prison, the report does not address sexual assault at Central

Prison, and there further is no indication from the record that

Branker and Upton were aware of the report or its contents.

Further,      although    the    record        contains      Wilkins’      uncontested

averment that the physical configuration of Unit Six made it

impossible for an officer in the unit’s control booth to see into

his cell, there is no basis in the record from which to conclude

that Branker and Upton actually perceived or had to have known

about   any    risk   Thompson    posed        to    Wilkins    in   the   unit    as   a

consequence of its physical configuration.

     The lack of record evidence establishing that Upton and

Branker had any knowledge regarding Thompson’s actions or any risk

he may have posed to Wilkins prior to his resignation also is fatal

to Wilkins’ claim for supervisory liability under the Eighth

Amendment.     In the absence of any knowledge of Thompson’s conduct

prior to his resignation, Branker and Upton could not have been

deliberately     indifferent      to    or     tacitly       authorized     the   same.

Branker and Upton thus were not liable to Wilkins for an Eighth

                                          12
Amendment violation.         The district court’s conclusion to the

contrary was erroneous as a matter of law.

                                    B.

     We further conclude there is no evidence of record supporting

the conclusion that Branker and Upton violated Wilkins’ rights

under the Fourth Amendment. There is no indication from the record

that Wilkins had his genitals exposed involuntarily to persons of

the opposite sex.      In the absence of such an occurrence, there is

no basis to conclude that Branker and Upton are liable to Wilkins

for a Fourth Amendment violation on account of their own conduct

or in a supervisory capacity.       The district court’s rejection of

qualified   immunity    to   Branker     and   Upton   on   Wilkins’   Fourth

Amendment claims also was error as a matter of law.




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                               IV.

     We therefore vacate the district court’s order and remand

this matter to the district court with instructions that the court

enter an order granting judgment in Branker’s and Upton’s favor on

the ground of qualified immunity.    We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid the

decisional process.



                           VACATED AND REMANDED WITH INSTRUCTIONS




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