UNPUBLISHED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Vacated and remanded with instructions by unpublished per curiam 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. 
2

Samuel R. Jackson, Appellee Pro Se.

Unpublished opinions are not binding precedent in this circuit.
3

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 
4

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, 
5

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