                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 99-1277EA
                                  _____________

Steven P. Howard, also known as      *
Kelly Lee Howard,                    *
                                     *
             Appellee,               *
                                     *
             v.                      *
                                     *
Heath Everett, CO-I, North Central   *
Unit, Arkansas Department of         *
Correction; Larry Norris, Director,  *
Arkansas Department of Correction;   *
G. David Guntharp, Assistant         *     On Appeal from the United
Director, Arkansas Department of     *     States District Court
Correction; Larry May, Warden, North *     for the Eastern District
Central Unit, Arkansas Department of *     of Arkansas.
Correction; John Belken, Assistant   *
Warden, North Central Unit, Arkansas *     [Not To Be Published]
Department of Correction; Robert     *
Perry, Major, North Central Unit,    *
Arkansas Department of Correction,   *
                                     *
             Defendants,             *
                                     *
Robert W. Henderson, Food Production *
Supervisor, North Central Unit,      *
Arkansas Department of Correction;   *
Dustin Foret, Food Production        *
Supervisor, North Central Unit,      *
Arkansas Department of Correction,   *
                                     *
             Appellants,             *
                                           *
Keith Berry, Sergeant, North Central       *
Unit, Arkansas Department of               *
Correction; Jeff Deen, Lieutenant,         *
North Central Unit, Arkansas               *
Department of Correction; Mark             *
Smith, CO-1, North Central Unit,           *
Arkansas Department of Correction;         *
Russ Bolia, Sergeant, North Central        *
Unit, Arkansas Department of               *
Correction,                                *
                                           *
             Defendants.                   *

                                    ___________

                           Submitted: February 28, 2000
                               Filed: March 10, 2000
                                   ___________

Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

      Steven Howard, an inmate at the North Central Unit (NCU) in Arkansas,
submitted a 42 U.S.C. § 1983 complaint against NCU employees Robert Henderson
and Dustin Foret, among others, alleging that they verbally sexually harassed him in
violation of the Eighth Amendment. The District Court denied Henderson's and Foret’s
motion for summary judgment based on qualified immunity, and Henderson and Foret
appeal. We reverse.

      Although a denial of summary judgment is not a final decision, when the issue
presented is whether the facts alleged support a claim that defendants violated clearly


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established law, the denial of summary judgment is immediately appealable, and we
conduct a de novo review. See Pace v. City of Des Moines, No. 99-1423, 2000 WL
31713, at *1 (8th Cir. Jan. 13, 2000). Qualified immunity shields government officials
from suit unless their conduct violated “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).

       In determining defendants’ entitlement to immunity, we determine whether the
plaintiff has alleged a deprivation of constitutional magnitude, and, if so, whether that
right was so clearly established that defendants would have known their conduct
violated the Constitution at the time of their acts. See Weiler v. Purkett, 137 F.3d
1047, 1050 (8th Cir. 1998) (en banc). “[B]ecause the sexual harassment or abuse of
an inmate by a corrections officer can never serve a legitimate penological purpose and
may well result in severe physical and psychological harm, such abuse can, in certain
circumstances, constitute the ‘unnecessary and wanton infliction of pain’ forbidden by
the Eighth Amendment.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoted
cases omitted).

       We disagree with the District Court that Howard alleged a deprivation of
constitutional magnitude. Although defendants’ sexual comments and gestures were
reprehensible, Howard specifically alleged that Henderson and Foret never touched
him. We believe this sexual harassment, absent contact or touching, does not constitute
unnecessary and wanton infliction of pain. Cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-
63 (8th Cir. 1995) (allegations that prison guard conducted daily strip searches, made
sexual comments about prisoner’s penis and buttocks, and rubbed prisoner’s buttocks
with nightstick were sufficient to withstand motion for summary judgment); Watson v.
Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (allegations in verified complaint that
prison guard performed almost daily pat-down searches, tickled inmates, and
deliberately examined genital, anus, lower stomach and thigh areas were sufficient to
withstand summary judgment motion). Thus, we conclude the District Court erred in

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not finding defendants were entitled to qualified immunity, and we reverse and remand
for entry of an order granting their motion for summary judgment.

      Accordingly, we reverse and remand for proceedings consistent with this
opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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