James Washington, Jr v. John Hively
2012 U.S. App. LEXIS 17426
| 7th Cir. | 2012Background
- Plaintiff, a pretrial detainee in a Wisconsin county jail, alleges a guard fondled his genitals during a pat-down (5–7 seconds) and then during a strip search (2–3 seconds) in April 2008, through his clothing and then nude.
- Plaintiff claims the conduct violated jail policy prohibiting touching inmates in searches and caused psychological harm from a gratuitous invasion of privacy.
- Defendant guard denies the allegations; district court granted summary judgment to the guard, assuming the touching occurred but framed it as de minimis or modest force.
- District court concluded the plaintiff suffered only de minimis injury and showed no evidence of the defendant’s subjective intent to humiliate or obtain sexual gratification.
- The court recognized that de minimis force cases are not controlling when the touching is sexual in nature and involves humiliation, and acknowledged that intent must be inferred rather than directly observed.
- The Seventh Circuit reversed and remanded, holding that de minimis force doctrine is inappropriate for sexual touching claims and that a plaintiff need not show actionable injury to prevail where constitutional rights are implicated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does sexual touching violate constitutional rights even if force is de minimis? | Mays: sexual touching infringes rights regardless of force amount. | Hudson/Hendrickson: de minimis force is non-actionable. | Yes; de minimis excuse does not bar sexual touching claims. |
| Is subjective intent required to sustain a §1983 claim for fondling during a pat-down or search? | Complaint shows clear humiliation and possible intent to gratify. | Intent must be proven; may be inferred but not presumed. | Intent can be inferred; not strictly limited to direct proof of purpose. |
| May a plaintiff pursue §1983 relief for sexual touching without showing substantial physical injury under 42 U.S.C. §1997e? | Injury can be psychological; nominal/punitive damages available. | §1997e caps or limits damages in some contexts. | The statute does not bar nominal or punitive damages for such claims. |
Key Cases Cited
- Hudson v. McMillian, 503 U.S. 1 (U.S. 1992) (limits de minimis force doctrine in prison abuse context)
- Hendrickson v. Cooper, 589 F.3d 887 (7th Cir. 2009) (de minimis uses of force are non-actionable)
- O’Malley v. Litscher, 465 F.3d 799 (7th Cir. 2006) (excessive-force framework inappropriate for sexual touching claims)
- Carlson v. Bukovic, 621 F.3d 610 (7th Cir. 2010) (reiterates that characterization of force matters in rights claims)
- Mays v. Springborn, 575 F.3d 643 (7th Cir. 2009) (sexual offenses inflict distress and constitutional harm even absent significant physical injury)
- Calhoun v. Detella, 319 F.3d 936 (7th Cir. 2003) (sexual touching can violate constitutional rights beyond de minimis)
- Guitron v. Paul, 675 F.3d 1044 (7th Cir. 2012) (retiring de minimis force concept; emphasize injury vs. force)
- Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011) (nonphysical harm or coercive conduct can support claims)
- Farmer v. Perrill, 288 F.3d 1254 (10th Cir. 2002) (sexual offenses and coercive touching may violate rights)
- Leary v. Livingston County, 528 F.3d 438 (6th Cir. 2008) (touching may violate rights even if not forcefully applied)