                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                      July 19, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 06-51643
                          SUMMARY CALENDAR


                          FRED VILLANUEVA,
           AS NEXT FRIEND OF MARISA VILLANUEVA, A MINOR,

                                                  Plaintiff-Appellant,

                                  versus

      SAN MARCOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT;
   DYANNA EASTWOOD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,

                                                 Defendants-Appellees.



            Appeal from the United States District Court
         for the Western District of Texas, Austin Division
                        Case No. 1:05-CV-445


Before JONES, Chief Judge, and HIGGINBOTHAM, and SMITH, Circuit
Judges.

PER CURIAM:*

           Fred Villanueva (“Villanueva”) brings this civil-rights

action under 42 U.S.C. § 1983 as next friend of his teenage

daughter   Marisa   Villanueva,     asserting   that   Dyanna    Eastwood

(“Eastwood”), a nurse employed by the San Marcos Consolidated

Independent School District (“SMCISD”),1 violated the Fourth and


     *
      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this opinion should not be published and is not precedent except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.
     1
      Villanueva does not challenge the district court’s summary
judgment grant to SMCISD in this appeal.
Fourteenth Amendments by requiring his daughter to submit a urine

sample for pregnancy testing.        Finding that Villanueva failed to

present competent summary judgment proof that Eastwood’s actions

were objectively unreasonable in light of clearly established law

at the time of the incident, the district court granted summary

judgment to Appellees and dismissed all claims.           We affirm.

            The record evidence reveals — and the litigants agree —

that Eastwood summoned Marisa to the school infirmary after being

informed by Marisa’s boyfriend and another student that they both

had had sexual intercourse with her recently and believed she was

pregnant.    Marisa denied being pregnant but admitted to having

missed her most recent menstrual period. And Marisa admits she did

not object to taking the test.            In her deposition testimony,

however, Marisa stated that, “I felt forced to take [the pregnancy

test] so I took it.      I didn’t want to say ‘no’ because I didn’t

know what was going to happen if I said ‘no.’”                 She recalled

fearing   she   “was   going   to   get   in   trouble”   if   she   refused.

Eastwood, in contrast, contends that she did not force Marisa to be

tested, but instead “asked what [Marisa] wanted to do at this

point, [stating] that it was up to her, and she could wait and see

[if she was pregnant] . . . [a]nd I said . . . ‘It’s your call.’”

Villanueva does not dispute Eastwood’s testimony.               Ultimately,

Marisa agreed to take the test and submitted a urine sample that

revealed she was not pregnant.



                                      2
            Viewing the record evidence in the light most favorable

to Villanueva, see Lincoln Gen. Ins. Co. v. Aisha’s Learning

Center, 468 F.3d 857, 858 (5th Cir. 2006), we agree with the

district court that Appellant has failed to create a genuine issue

of     material    fact     that     Eastwood’s       actions     were   objectively

unreasonable      and     that   she    tested   Marisa    in   violation     of   her

constitutional rights. Villanueva bears the burden of proving that

Eastwood is not entitled to qualified immunity.                   McClendon v. City

of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).                   In order

to overcome the qualified immunity defense, Villanueva must allege

that Eastwood violated a clearly established constitutional right

and that her behavior was objectively unreasonable in light of

clearly established law at the time the incident transpired.

Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006) (per curiam).

A defendant’s behavior cannot be deemed objectively unreasonable

unless all reasonable officials in her position and facing similar

circumstances      would     have      known   such    behavior    to    violate   the

Constitution or an applicable federal statute.                       See Felton v.

Polles, 315 F.3d 470, 477 (5th Cir. 2002).

            Contrary       to      Villanueva’s       allegation    that    Eastwood

harangued his unwilling daughter into submitting a urine sample,

the record contains no evidence of coercion on Eastwood’s part or

any indication that Marisa did not voluntarily consent to testing.

Even    assuming    arguendo       that   Eastwood’s      administration      of   the

pregnancy test violated a clearly established constitutional right,

                                           3
there is no record evidence to suggest that Eastwood’s behavior was

unreasonable, that Marisa’s decision was coerced, or that Eastwood

threatened or intimidated Marisa into submitting to the test.

Marisa’s subjective belief that she was required to be tested and

her unsubstantiated speculation that a refusal could result in

adverse consequences do not constitute competent summary judgment

evidence.    See Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d

466, 468 (5th Cir. 2002); Hall v. Thomas, 190 F.3d 693, 698 (5th

Cir. 1999).2

            After   a   careful   review   of   the   parties’   briefs   and

pertinent record evidence, we find no reversible error of law or

fact by the district court.          We therefore AFFIRM the district

court’s grant of summary judgment to Eastwood and SMCISD.

            AFFIRMED.




     2
      Notwithstanding that Eastwood is entitled to qualified
immunity, it is also plain that this controversy might have been
averted had Eastwood or Dr. Kelly convened a meeting with
Marisa’s parents at the outset, rather than allowing them to
learn after the fact about the pregnancy test and Eastwood’s
encouraging Marisa to go on birth control pills at the age of
fifteen.

                                     4
