Eastwood v. Department of Corrections of State of Okl., 87-2238

• Decision Date: 12 May 1988
• Docket Number: No. 87-2238,87-2238
• Citation: 846 F.2d 627
• Parties: 46 Fair Empl.Prac.Cas. 1869, 3 Indiv.Empl.Rts.Cas. 588 Karen EASTWOOD, an Individual, Plaintiff-Appellee, v. DEPARTMENT OF CORRECTIONS OF the STATE OF OKLAHOMA; Larry Meachum, Director of the Department of Corrections, State of Oklahoma; Tom Lovelace, Individually and as an Employee of the Department of Corrections; Ted Wallman, Deputy Warden of the Oklahoma State Penitentiary, Department of Corrections, Defendants-Appellants, and Dempsey Johnson, Individually, and as an Employee of the Department of Corrections, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 627

846 F.2d 627

46 Fair Empl.Prac.Cas. 1869,

3 Indiv.Empl.Rts.Cas. 588

Karen EASTWOOD, an Individual, Plaintiff-Appellee, v. DEPARTMENT OF CORRECTIONS OF the STATE OF OKLAHOMA; Larry Meachum, Director of the Department of Corrections, State of Oklahoma; Tom Lovelace, Individually and as an Employee of the Department of Corrections; Ted Wallman, Deputy Warden of the Oklahoma State Penitentiary, Department of Corrections, Defendants-Appellants and Dempsey Johnson, Individually, and as an Employee of the Department of Corrections, Defendant.

No. 87-2238.

United States Court of Appeals Tenth Circuit.

May 12, 1988.

Michael D. Parks of Stipe, Gossett, Stipe, Harper, Estes, McCune and Parks, McAlester, Okl., for plaintiff-appellee.

Guy L. Hurst, Asst. Atty. Gen., (Robert H. Henry, Atty. Gen., and Michael W. Elliott, Asst. Atty. Gen., with him on the briefs), Oklahoma City, Okl., for defendants-appellants.

Before MOORE and BALDOCK, Circuit Judges, and O'CONNOR, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This is an appeal from the district court's denial of defendants' motion to dismiss plaintiff Eastwood's Sec. 1983 claim on the grounds of qualified and absolute immunity. The Oklahoma Department of Corrections (DOC) argues the claim against it is barred by the Eleventh Amendment. Defendants Wallman, Lovelace, and Meachum, all of whom are DOC employees, assert they cannot be sued because they are entitled to the defense of qualified immunity. We agree that the DOC is protected from suit by the Eleventh Amendment. We also hold that this immunity extends to DOC officials who are being sued in their official capacity; therefore, plaintiff's suit against defendants Meachum and Wallman must be dismissed. However, the action brought against Mr. Lovelace in his individual capacity survives the qualified immunity defense because plaintiff has established that Mr. Lovelace knew or should have known about plaintiff's clearly established right of privacy. The district court's order is therefore affirmed in part and reversed in part.

I.

Plaintiff Eastwood, a former employee of the DOC, alleges that after a training session at a DOC facility on March 4, 1985, Dempsey Johnson, a fellow employee, enticed her to his room and put a drug in her drink which rendered her unconscious. Plaintiff awoke to find Mr. Johnson sexually assaulting and molesting her. When plaintiff reported this incident, the DOC sent defendant Lovelace, a departmental investigator, to probe the validity of her allegations. Plaintiff claims Mr. Lovelace promised her that she would not be harassed or fired if she revealed everything about the incident. Later that day, however, Mr. Lovelace allegedly threatened to fire her unless she signed a statement promising to forget the incident if Mr. Johnson resigned. Plaintiff also claims that Mr. Lovelace, at the behest of Mr. Meachum, the director of the DOC, forced her to reveal facts about her sexual history. Even though she acquiesced to these demands, defendants Lovelace, Meachum, and Wallman (who serves as the deputy warden of the DOC) allegedly created an offensive work environment by harassing her with additional questions about her sexual history, publishing offensive and insulting drawings within the DOC facility, and repeatedly making insulting remarks. Unable to stand this abuse, Ms. Eastwood resigned her position in April 1985.

II.

A.

A denial of a motion to dismiss ordinarily may not be appealed because it is not a final decision. See 28 U.S.C. Sec. 1291. Under the "collateral order" doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), however, an interlocutory appeal may be taken from decisions that "finally determine claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred...." The Supreme Court has held that a denial of a claim of absolute immunity falls within this small class of interlocutory orders. Nixon v. Fitzgerald, 457 U.S. 731, 743, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349 (1982). More recently, the Court also applied the collateral order doctrine to the denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). The Court reasoned that qualified immunity is an immunity from the burdens of litigation, including being subjected to broad-reaching discovery, which could only be preserved by allowing an immediate appeal from a district court's denial of immunity. Id. The Court concluded that a court's denial of a motion for dismissal or summary judgment on the ground of qualified immunity was an appealable interlocutory decision, despite the absence of a final judgment. See also Barrett v. United States, 798 F.2d 565, 571 (2d Cir.1986) (denial of a motion to dismiss based on claim of immunity is immediately appealable).

Following this precedent, we hold that this court has jurisdiction to consider the district court's denial of defendants' claims of absolute and qualified immunity. Although limited to questions of law, our review necessarily "entail[s] consideration of the factual allegations that make up the plaintiff's claim for relief." Mitchell, 472 U.S. at 528, 105 S.Ct. at 2817. Furthermore, our review is de novo, requiring us to review the evidence in the light most favorable to the nonmoving party. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

B.

We must next address whether plaintiff has set forth her allegations with sufficient detail. In Sec. 1983 actions that raise the issue of qualified immunity, plaintiff must plead facts with sufficient particularity to establish the foundation for recovery. Brown v. Texas A & M Univ., 804 F.2d 327, 333 (5th Cir.1986). We believe Ms. Eastwood has met this standard. In her complaint, she alleges that Mr. Lovelace, at the behest of Mr. Meachum, inquired into her sexual history and coerced her to sign a waiver on March 6, 1985. The complaint continues:

Since the date of the incident [the sexual encounter], March 4, 1985, there has been an ongoing and continuous series of acts which constitute sexual harassment against the Plaintiff, committed and condoned by the Defendants, consisting of questioning which violates the privacy rights of Plaintiff; the publication of offensive and insulting drawings of Plaintiff within the Department of Corrections' facilities; and the making of insulting and offensive remarks concerning the Plaintiff, at Department of Corrections [sic] facilities. All of these actions have created an offensive work environment, and conditions of work for Plaintiff.

Certainly, it would have been preferable if Ms. Eastwood had set forth each of these incidents in greater detail. But plaintiff has not merely couched her complaint in broad or vague allegations. Rather, she has explained and dated the initial meeting with Mr. Lovelace and listed three different actions allegedly committed by the defendants which could constitute sexual harassment. These allegations, viewed in the light most favorable to Ms. Eastwood, are sufficiently detailed to form the basis of a claim warranting further litigation.

III.

With these preliminary issues decided, we turn to the merits of defendants' claims of immunity. To determine the applicability of a qualified immunity defense, an appellate court must examine if the official conduct at issue "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Defendants contend that Ms. Eastwood has failed to show how their actions violated a clearly established constitutional right. The state may legitimately inquire into the sexual conduct of its citizens, defendants argue, to determine if a claim of sexual harassment is well-founded.

Definitions of what constitutes a clearly established right have been hazy. However, the Supreme Court recently held that recovery under Sec. 1983 will only be allowed if the official's unlawfulness is apparent in light of the preexisting law. Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Devargas v. Mason and Hanger-Silas Mason Co., 844 F.2d 714 (10th Cir.1988). The particular action in question, however, need not have previously been held unlawful. Anderson, 107 S.Ct. at 3039. Nor must there even be a strict factual correspondence between the cases establishing the law and the case at hand. E.g., Garcia by Garcia v. Miera, 817 F.2d 650, 657 (10th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). Rather, this circuit requires only "some but not precise factual correspondence." Id. (quoting People of Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139, 144 (3d Cir.1984)). It is incumbent upon government officials "to relate established law to analogous factual settings." Id.

While the Constitution does not explicitly establish a right of privacy, the Supreme Court has recognized for nearly 100 years that a right of personal privacy does exist. E.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Union Pacific R.R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). In a series of cases, the Court established a zone of privacy protected by the penumbra of a variety of provisions in the Bill of Rights. ¹ This penumbra protects two kinds of privacy interests: the individual's interest in avoiding disclosure of personal matters and the interest in being independent when making certain kinds of personal decisions. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The first interest protects the individual from governmental inquiry into matters...