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Warden, North Central Unit, Arkansas * [Not To Be Published]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, *
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 *

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.