Berryhill v. Schriro, No. 97-1827

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore FAGG, WOLLMAN, and HANSEN; HANSEN
Citation137 F.3d 1073
PartiesCortez BERRYHILL, Plaintiff-Appellant, v. Dora SCHRIRO, George Lombardi, Kelly Lock, Defendants, Larry Dorsey, Virgil Helton, Ray Bloomer, Ron Walters, Defendants-Appellees.
Decision Date06 March 1998
Docket NumberNo. 97-1827

Page 1073

137 F.3d 1073
Cortez BERRYHILL, Plaintiff-Appellant,
v.
Dora SCHRIRO, George Lombardi, Kelly Lock, Defendants,
Larry Dorsey, Virgil Helton, Ray Bloomer, Ron Walters,
Defendants-Appellees.
No. 97-1827.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 17, 1997.
Decided March 6, 1998.

Page 1074

Howard B. Eisenberg, Milwaukee, WI, argued, for Plaintiff-Appellant.

Tina M. Crow Halcom, Assistant Attorney General, Jefferson City, MO, argued (John R. Munich, on the brief), for Defendants-Appellees.

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Cortez Berryhill, a Missouri prisoner, appeals the district court's 1 grant of summary judgment in favor of defendants Larry Dorsey, Virgil Helton, Ray Bloomer, and Ron Walters in this civil rights action brought pursuant to 42 U.S.C. § 1983. We affirm.

I.

In his second amended complaint, Berryhill claims that on November 4, 1994, while working in a maintenance job assignment at the prison, he was approached by four civilian maintenance workers--Dorsey, Helton, Bloomer, and Walters. In his deposition,

Page 1075

Berryhill testified that Bloomer grabbed him by the shoulders while Helton grabbed his buttocks with one hand "[b]riefly." (R. at 133.) Berryhill testified that while he was telling Helton that he "didn't play this" (R. at 128), Walters also grabbed Berryhill's buttocks for a moment. Berryhill pulled away from them and left the maintenance building feeling that they had intended to embarrass him. He asserted that Dorsey verbally provoked the incident, but the only thing he could remember Dorsey saying was something to the effect of, "Here he comes." (R. at 147-48.) He did not hear the other defendants say anything to him. Berryhill said that the whole incident lasted less than a minute or a minute at the most.

In his federal complaint, Berryhill claims that the defendants' conduct in this incident violated his Eighth Amendment right to be free from cruel and unusual punishment as well as his Fourteenth Amendment right to bodily integrity. He claims that he suffered asthma attacks and emotional distress as a result of the incident. The complaint also asserts one count of common law assault and battery arising from the incident. The defendants filed a motion for summary judgment on several grounds, including that Berryhill demonstrated no constitutional violation, that the defendants, who are civilian employees, were not acting under color of state law, and that if they were acting under color of state law they are entitled to qualified immunity. The defendants urged the district court not to exercise its pendent jurisdiction over the state law claim.

A magistrate judge's report and recommendation initially recommended that the summary judgment motion be granted as to defendant Dorsey, because the record indicates that he did not participate in any physical touching and he made no comments during the incident. The magistrate judge recommended that summary judgment be denied as to the other defendants, citing a factual dispute over whether a sexual assault or a minor incident of nonsexual horseplay occurred. The district court did not adopt the report and recommendation but granted the defendants' motion for summary judgment in its entirety. The district court stated that summary judgment is appropriate "[f]or the reasons set forth in the defendants' pleadings," without any further explanation of the ruling. (Appellant's Adden. at A-2.) Berryhill appeals.

II.

We review de novo the district court's grant of summary judgment, applying the same standards as the district court. Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir.1997); Mayard v. Hopwood, 105 F.3d 1226, 1227 (8th Cir.1997). We will affirm the grant of summary judgment if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering the facts and the inferences to be drawn from them, we do so in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Dulany, 132 F.3d at 1237.

Berryhill challenges the district court's grant of summary judgment, arguing that the defendants'...

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210 practice notes
  • Miller v. Ghilarducci, Case No. 1:17-cv-00448-SKO (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 18, 2017
    ...and laughing). Further, merely characterizing the touching as offensive, sexual, or embarrassing is not enough. See Berryhill v. Schriro, 137 F.3d 1073 (8th Cir.1998) (affirming summary judgment for defendant on Eighth Amendment claim, where plaintiff was subjected to an "embarrassing" and ......
  • Robinson v. Comm'r Carl Danberg, Civ. No. 10-362-SLR
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • August 5, 2010
    ...him, and pressed her whole body against his body were not sufficiently serious to satisfy the objective component); Berryhill v. Schriro, 137 F.3d 1073 (8th Cir.1998) (male inmate's claims that two officers grabbed his buttocks for a moment did not meet the objective component of Eighth Ame......
  • Kohn v. Ernst, Case No. 2:16-cv-115
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • September 26, 2016
    ...a sexual manner and made an offensive sexual remark did not meet the objective component of the Eighth Amendment); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he feared sexual abuse, two brief touches to his buttocks could not be construed a......
  • Jones v. Luedtke, No. C11-0011-LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 7, 2012
    ...culpable element, a defendant must have acted with deliberate indifference to the plaintiff's health or safety. See Berryhill v. Schriro, 137 F.3d 1073, 1076-77 (8th Cir. 1998) (applying deliberate indifference standard in prison sexual harassment case). Here, the allegation of sexual abuse......
  • Request a trial to view additional results
210 cases
  • Miller v. Ghilarducci, Case No. 1:17-cv-00448-SKO (PC)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 18, 2017
    ...and laughing). Further, merely characterizing the touching as offensive, sexual, or embarrassing is not enough. See Berryhill v. Schriro, 137 F.3d 1073 (8th Cir.1998) (affirming summary judgment for defendant on Eighth Amendment claim, where plaintiff was subjected to an "embarrassing" and ......
  • Robinson v. Comm'r Carl Danberg, Civ. No. 10-362-SLR
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • August 5, 2010
    ...him, and pressed her whole body against his body were not sufficiently serious to satisfy the objective component); Berryhill v. Schriro, 137 F.3d 1073 (8th Cir.1998) (male inmate's claims that two officers grabbed his buttocks for a moment did not meet the objective component of Eighth Ame......
  • Kohn v. Ernst, Case No. 2:16-cv-115
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • September 26, 2016
    ...a sexual manner and made an offensive sexual remark did not meet the objective component of the Eighth Amendment); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he feared sexual abuse, two brief touches to his buttocks could not be construed a......
  • Jones v. Luedtke, No. C11-0011-LRR
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 7, 2012
    ...culpable element, a defendant must have acted with deliberate indifference to the plaintiff's health or safety. See Berryhill v. Schriro, 137 F.3d 1073, 1076-77 (8th Cir. 1998) (applying deliberate indifference standard in prison sexual harassment case). Here, the allegation of sexual abuse......
  • Request a trial to view additional results

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