*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this opinion should not be published and is not precedent except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.

1Villanueva does not challenge the district court’s summary

judgment grant to SMCISD in this appeal.

United States Court of Appeals

Fifth Circuit

FILED

July 19, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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
2

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.
3

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,
2Notwithstanding 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

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.