The full 11th U.S. Circuit Court of Appeals has declined to review whether a male prison inmate suffered cruel and unusual punishment when a female guard forced him to masturbate.

Only Judge Rosemary Barkett contested the court's order denying en banc review of the Eighth Amendment claim of Boxer X, who alleges guard Angela Harris threatened him with disciplinary action if he did not strip and masturbate for her enjoyment while he was incarcerated in a Georgia prison.

"The use of prison disciplinary procedures to extract sexual favors from prisoners is the type of conduct that is at the heart of what the Eighth Amendment proscribes," Barkett said in a dissent.

A three-judge panel dismissed the inmate's claim in January, finding his injury did not meet the "objectively, sufficiently serious" test of prison abuse case law. "A female prison guard’s solicitation of a male prisoner’s manual masturbation, even under the threat of reprisal, does not present more than de minimis injury," the ruling said.

Barkett questioned "what rationale the panel uses to support its position:"

Does the panel opinion stand for the proposition that the sexual abuse of prisoners is not offensive to contemporary standards of decency and human dignity? Is the opinion suggesting that the Constitution permits a “little” sexual abuse?

Her pleas did not move Judge Edward E. Carnes, to whom the Eighth Amendment issue was not of "exceptional importance" meriting en banc review. Boxer X, he noted, can proceed on his Fourth Amendment privacy claim and "the role of our court system in civil cases is not to decide how many analytical angels can dance on the head of a particular injury."

But since when are plaintiffs barred from seeking recovery against a defendant on more than one theory? By belittling Boxer X's alleged injury, the 11th Circuit has truly committed, as Barkett put it, a "precedent-setting error of exceptional importance."

By Matthew Heller
8/10/06

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