     Case: 16-41078      Document: 00514343775         Page: 1    Date Filed: 02/09/2018




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

                                      No. 16-41078
                                                                                 Fifth Circuit

                                                                               FILED
                                                                        February 9, 2018

RONALD E. NEWTON,                                                         Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellant

v.

LATASHA JOSEPH, Texas Department of Criminal Justice Correctional
Officer, In Their Individual and Official Capacities,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CV-510


Before KING, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Texas inmate Ronald E. Newton sued correctional officer Latasha Joseph
under 42 U.S.C. § 1983 and Texas law for allegedly strip-searching and cavity-
searching him in violation of Texas Department of Criminal Justice (TDCJ)
rules after he entered a janitor’s closet and closed the door while working in
the prison law library. Newton now appeals from the district court’s grant of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-41078
Joseph’s motion for summary judgment on the basis that she was entitled to
qualified immunity and that the Texas Tort Claims Act (TTCA) barred his tort
claims. Finding error, we reverse and remand in part.
                          STANDARD OF REVIEW
      This court reviews de novo a district court’s grant of summary judgment
on the basis of qualified immunity. McCreary v. Richardson, 738 F.3d 651, 654
(5th Cir. 2013). Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling
on a motion for summary judgment, “evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tolan v.
Cotton, 134 S. Ct. 1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)); see also Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.
2009) (“The plaintiff's factual assertions are taken as true to determine
whether they are legally sufficient to defeat the defendant's motion for
summary judgment.”).
                                 DISCUSSION
      Newton asserts that the district court erred in granting summary
judgment as to his 42 U.S.C. § 1983 claims on the basis of qualified immunity.
      Government officials are protected from liability for civil damages by the
doctrine of qualified immunity “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.”      Pearson v. Callahan, 555 U.S. 223, 231 (2009).        In
determining the applicability of qualified immunity, this court conducts a two-
pronged analysis and evaluates whether the summary judgment evidence
shows that “the officer’s conduct violated a constitutional right, and whether
the right at issue was clearly established at the time of the defendant's alleged


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                                  No. 16-41078
misconduct.” McCreary, 738 F.3d at 656. This court may consider the steps in
any order. Pearson, 555 U.S. at 236.
      When considering the second prong, this court examines “whether the
contours of a right are sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.” McCreary, 738 F.3d
at 656 (internal marks and citation omitted).
      The district court concluded that Joseph’s actions were reasonable based
on the “light” burden referenced in the unpublished decision of Waddleton v.
Jackson, 445 F. App’x 808, 809 (5th Cir. 2011). Specifically, the court said that
even if Joseph was mistaken in her belief that Newton was entering a
restricted room without authorization, it was not unreasonable for her to
construe it as an emergency situation justifying a strip search to ensure
Newton did not obtain any contraband. The court also said that it was not
unreasonable for Joseph to refuse Newton’s request for a male officer to
conduct the strip search. Further, the district court concluded that such a strip
search is related to TDJC penological interests. The district court is correct
that such a search may be related to TDJC penological interests, but “[a] strip
search of a male prisoner by a female guard in the absence of exigent
circumstances presents a colorable Fourth Amendment claim.”              Hamer v.
Jones, 364 F. App’x 119, 124-25 (5th Cir. 2010).
      In Moore v. Carwell, 168 F.3d 234 (5th Cir. 1999), this court recognized
that a female guard’s non-exigent cavity search of a male inmate may violate
the Fourth Amendment. Id. at 235-237. Thus, the law is clearly established.
We reiterated this in the unpublished decision of Hamer, 364 F. App’x at 125
(“If Director Treon was, as Hamer alleged, personally involved in the cross-sex
search and if the search occurred under non-exigent circumstances as Hamer
alleged, then his claim may rise to the level of a constitutional violation.”). This
is consistent with at least one other circuit. In Byrd v. Maricopa Cnty. Sheriff’s
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                                No. 16-41078
Dep’t, 629 F.3d 1135 (9th Cir. 2011), the Ninth Circuit concluded that “the
cross-gender strip search performed on Byrd was unreasonable as a matter of
law under the facts of this case and violated Byrd's rights under the Fourth
Amendment to be free from unreasonable searches.” Id. at 1147.
      Newton asserts that Joseph strip- and cavity-searched him for entering
the janitor’s closet to wash his hands. Newton also asserts that Joseph made
humiliating and degrading sexual remarks while searching him, made him
remove all of his clothing, and made him then bend over in front of another
inmate. There is also a statement in the record from another inmate who
observed Newton being forced to fully strip nude.
      Joseph asserts that she strip-searched Newton “to his boxers” because
he went into the “chemical room for no reason and closed the door.” Joseph’s
handwritten report of the incident indicates that she immediately opened the
door when Newton entered the closet. Her report also fails to state any belief
or concern that Newton had obtained contraband. The report neither mentions
“emergency” nor “contraband” in any reference form. Instead, the report says
that Joseph strip-searched Newton “due to reasonable suspension [sic].” If
anything, the report gives the appearance that Newton may have been
searched as punishment for going into the closet.
      On summary judgment, Joseph provided various TDJC policies,
including a directive on storage, control and accountability of chemicals which
says nothing about this particular closet in the library. Joseph did not offer
any evidence establishing that Newton actually entered a restricted “chemical
room” without permission. Now, Joseph merely points to that general policy
on storage, control and accountability of chemicals and argues Newton failed
to offer evidence “to establish the room was not restricted or that he had
authorization to be in that room.” However, at this stage, we are required to
take Newton’s factual assertions as true and determine whether they are
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                                 No. 16-41078
legally sufficient to defeat Joseph’s motion for summary judgment on the basis
of qualified immunity. See Manis, 585 F.3d at 843.
      Moreover, the TDJC policy on strip searches states that “[s]trip searches
shall be used only when directed by specific unit post orders, unit departmental
policy, or when a supervisor believes there is reasonable cause to warrant such
a search.” (Emphasis added). Further, the policy explicitly states that “[m]ale
offenders shall generally be searched by a male officer; however, in
extraordinary circumstances and when approved by a supervisor, the search
may be conducted by a female officer.” (Emphasis added).
      The district court concluded that this was an emergency based on
Joseph’s version of the facts, but failed to take Newton’s factual assertions as
true and did not address the TDJC policy contemplating such an emergency
and still only allowing a female officer to conduct such a search “when approved
by a supervisor.” Joseph had no such approval and refused Newton’s request
that he be searched by a male officer. Further, her report of the incident does
not mention anything about an emergency or any belief that Newton had
obtained any contraband or chemicals. Also, following Newton’s grievance,
David Pille, law library supervisor, instructed Joseph that she was not to
perform such a search again and that a male officer must do it.           Pille’s
instruction is consistent with the policy.
                                CONCLUSION
      Newton asserts that Joseph conducted a strip- and cavity-search despite
the absence of emergency, without obtaining a supervisor’s approval, and that
he was made to strip until he was fully nude. Assuming Newton’s assertions
are true, those facts could arise to the level of a Fourth Amendment violation.
See Moore, 168 F.3d at 237; see also Byrd, 629 F.3d at 1147; and Hamer, 364
F. App’x at 124-25. At best, Joseph’s counter-assertions create a genuine


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                                     No. 16-41078
dispute as to material facts. Accordingly, we reverse the district court’s grant
of summary judgment to Joseph on the basis of qualified immunity. 1
      Newton’s motions to expedite the appeal and for appointment of counsel
on appeal are dismissed as moot. Newton’s motion for sanctions is denied
because he has failed to establish fraudulent, vexatious and unethical
litigation pursuant to Rule 46(c) of the Federal Rules of Appellate Procedure.
      For the foregoing reasons, we REVERSE AND REMAND IN PART.
MOTIONS DISMISSED and DENIED.




      1With   regard to Newton’s other claims, which we have not addressed on the merits,
we conclude that the district court should consider whether appointment of counsel is
appropriate on remand and whether this decision affects its prior determination of Newton’s
state law claims.
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