                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-6896


SAMUEL R. JACKSON,

                Plaintiff - Appellee,

          v.

JENNIFER HOLLEY, Psychologist,

                Defendant – Appellant,

          and

DAVID MAY, Captain; LEE FUTRELLE, Psychologist Program
Manager; VERDEEN B. BENJAMIN, Disciplinary Hearing Officer;
LEWIS ROWE, Unit Manager; DENNIS DANIELS, Superintendent,

                Defendants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:14-ct-03238-BO)


Submitted:   November 10, 2016              Decided:   November 18, 2016


Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.


Roy Cooper, Attorney General, Joseph Finarelli, Special Deputy
Attorney General, Raleigh, North Carolina, for Appellant.
Samuel R. Jackson, Appellee Pro Se.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Jennifer Holley, a staff psychologist at Maury Correctional

Institution, seeks to appeal the district court’s order denying

her    motion     to    dismiss     North       Carolina    prisoner,       Samuel   R.

Jackson’s,      42     U.S.C.   § 1983    (2012)       complaint    alleging     Holley

sexually harassed Jackson.               The district court denied Holley’s

motion to dismiss because it found that Holley was not entitled

to qualified immunity.             Jackson has moved to dismiss Holley’s

appeal, asserting that the appeal is interlocutory.                     Jackson has

also   filed     a    self-styled    “Motion      to    Invalidate[,]”       summarily

asking     that        this     court       invalidate       Holley’s        appellate

submissions.         We deny the pending motions and vacate and remand

to the district court.

       First, we disagree with Jackson that we lack jurisdiction

over     this    appeal.          Admittedly,       this    court     may     exercise

jurisdiction only over final decisions, 28 U.S.C. § 1291 (2012),

and    certain       interlocutory   and     collateral      orders.        28   U.S.C.

§ 1292 (2012); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 545-47 (1949).                     A final decision is

one that “ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.”                     Catlin v. United

States, 324 U.S. 229, 233 (1945).                 Because qualified immunity is

an immunity from suit rather than a mere defense to liability,

however, orders denying qualified immunity may be immediately

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appealable collateral orders.                    Iko v. Shreve, 535 F.3d 225, 233-

34 (4th Cir. 2008).

       An order denying a defendant’s claim of qualified immunity

is immediately appealable under the collateral order doctrine

only    “to   the     extent        that    it    turns      on    an     issue    of   law[.]”

Mitchell      v.    Forsyth,     472       U.S.       511,   530    (1985).        However,    a

district court’s determination that a genuine issue of material

fact exists to preclude summary judgment on qualified immunity

grounds is not immediately appealable.                             Johnson v. Jones, 515

U.S. 304, 313-20 (1995); Culosi v. Bullock, 596 F.3d 195, 201

(4th Cir. 2010).

       Viewing       the    complaint’s           allegations        in     the    light    most

favorable to Jackson, and noting that a video allegedly exists

to substantiate those allegations, the district court concluded

that    “qualified          immunity        is        inappropriate        given    that    the

plaintiff’s         complaint        states       sufficient         factual       allegations

that,    if        true,     show     a     violation         of    clearly        established

constitutional rights.”                   Thus, the district court found that

Jackson’s “Eighth Amendment claims are alleged and supported by

the    facts[.]”           Moreover,       Holley       asserts     on    appeal    that    even

assuming all facts as alleged by Jackson are taken as true,

Jackson’s      allegations          do     not        legally      amount    to    an     Eighth

Amendment      violation.            Holley        therefore        presents       only    legal

arguments on appeal.             Because the district court’s disposition,

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and Holley’s arguments on appeal, present this court with purely

legal questions, we have jurisdiction over Holley’s appeal and

deny Jackson’s motion to dismiss.

     Having reviewed the parties’ submissions, we disagree with

the district court’s determination that Holley was not entitled

to qualified immunity.             We review de novo a district court’s

decision on a motion to dismiss.                      See Coleman v. Md. Ct. of

App., 626 F.3d 187, 190 (4th Cir. 2010).                         When ruling on such a

motion,   “a     judge    must     accept       as    true       all     of    the    factual

allegations contained in the complaint.”                          Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam).                        A complaint “need only

give the defendant fair notice of what the claim is and the

grounds   upon    which       it   rests.”           Id.    at    93     (alteration        and

internal quotation marks omitted).

     However,      “plaintiffs        may       proceed          into    the        litigation

process only when their complaints are justified by both law and

fact.”     Francis       v.   Giacomelli,       588    F.3d       186,    193       (4th   Cir.

2009).    Thus, to survive a motion to dismiss, the complaint must

“state[] a plausible claim for relief” that “permit[s] the court

to infer more than the mere possibility of misconduct” based

upon “its judicial experience and common sense.”                               Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

     It   is     well-established       that         “the    treatment          a    prisoner

receives in prison and the conditions under which he is confined

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are subject to scrutiny under the Eighth Amendment.”                                 Farmer v.

Brennan,      511      U.S.     825,    832      (1994)      (internal       quotation      marks

omitted).           There     can     be   little       doubt      that     sexual    abuse    is

repugnant         to    contemporary          standards         of     decency,      and     that

allegations of sexual abuse can amount to an Eighth Amendment

violation.             See    Woodford      v.    Ngo,       548     U.S.    81,    118    (2006)

(Stevens, J., dissenting) (“Accordingly, those inmates who are

sexually assaulted by guards, or whose sexual assaults by other

inmates       are       facilitated         by        guards,      have      suffered       grave

deprivations of their Eighth Amendment rights.”); Farmer, 511

U.S. at 834 (“Being violently assaulted in prison is simply not

part   of     the       penalty     that      criminal        offenders       pay    for    their

offenses against society.” (internal quotation marks omitted)).

       The    Supreme         Court     has      held,      however,        that    “not    every

malevolent touch by a prison guard gives rise to a federal cause

of action.”            Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (internal

quotation marks omitted).                  Indeed, “[a]n inmate who complains of

a   push     or   a     shove    that      causes      no    discernible       injury      almost

certainly fails to state a valid excessive force claim.”                                   Id. at

38 (internal quotation marks omitted).                               Moreover, “[a]lthough

prisoners have a right to be free from sexual abuse, whether at

the    hands      of     fellow       inmates      or       prison    guards,       the    Eighth

Amendment’s protections do not necessarily extend to mere verbal



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sexual harassment.”              Austin v. Terhune, 367 F.3d 1167, 1171 (9th

Cir. 2004) (internal quotation marks omitted).

        In this case, Jackson alleges only that Holley:                              (1) sent

him   one        “sexually    explicit         and   lurid”      letter;    (2)     “posed   up

seductively         before    [Jackson]         and    whispered         sexually    explicit

words       to     [him;]”       and     (3)     “plant[ed]        her     groin     area    in

[Jackson’s] face while [he] was seated for [his] haircut in the

barber’s         chair.”      We       conclude      that   the    conduct     about    which

Jackson      complains        does       not    amount      to    an     Eighth     Amendment

violation. *           See Wilkins, 559 U.S. at 38-39.                    Thus, Holley was

entitled to qualified immunity and her motion to dismiss should

have been granted by the district court.                          See Henry v. Purnell,

652 F.3d 524, 531 (4th Cir. 2011) (reiterating that to determine

whether      qualified       immunity          protects     a    prison    official,        this

court       must       ask   “first       whether      a    constitutional          violation

occurred         and    second     whether      the    right      violated    was     clearly

established”).



        *
       Given the lack of circuit authority regarding whether
sexual   harassment   by   prison   officials   amounts   to   a
constitutional violation, we also find that it was not
unreasonable for Holley to have “failed to appreciate that h[er]
conduct would violate [Jackson’s] rights.”   Meyers v. Baltimore
Cnty., 713 F.3d 723, 731 (4th Cir. 2013) (internal quotation
marks omitted).   Thus, even if the conduct about which Jackson
complains is sufficient to state an Eighth Amendment violation,
Holley is entitled to qualified immunity under the second prong
of the qualified immunity inquiry.



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    Based     on    the    foregoing,       we    deny     Jackson’s     motions     to

invalidate    and     to   dismiss    this       appeal,     and   we    vacate     the

district court’s order denying Holley’s motion to dismiss and

remand with instructions to enter judgment in Holley’s favor on

Jackson’s § 1983 claim.        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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