Case: 23-50678 Document: 56-1 Page: 1 Date Filed: 03/04/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 4, 2025
No. 23-50678 Lyle W. Cayce
____________ Clerk
Amber Simpson; Britney Foster; Stephanie Olivarri,
Plaintiffs—Appellees,
versus
Joe Cisneros,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CV-716
______________________________
Before Higginbotham, Stewart, and Haynes, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
This appeal brings the question of whether the Eighth Amendment or
the Fourteenth Amendment protects inmates from abusive treatment.
I.
In August 2020, Amber Simpson, Britney Foster, and Stephani
Olivarri filed this suit alleging that a Texas Department of Criminal Justice
employee, Joe Cisneros, sexually abused and harassed them while they were
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No. 23-50678
incarcerated at the Linda Woodsman State Jail in Gatesville, Texas. 1 After
their release, the Plaintiffs sued under 42 U.S.C. § 1983 for violations of the
Eighth Amendment’s Cruel and Unusual Punishment Clause and the
Fourteenth Amendment’s Due Process Clause. 2 Soon thereafter, the case
was referred to Magistrate Judge Jeffrey C. Manske for the Western District
of Texas.
A.
While incarcerated, each Plaintiff was assigned to a plumbing work
crew under the supervision of Cisneros, a male jail guard. Reading testimony
in the light most favorable to the Plaintiffs, the district court found that
Cisneros made numerous inappropriate, sexual comments to female
inmates. 3 Foster testified that Cisneros grabbed and moved his genitalia
around near her face—while their knees were touching—and his pants were
still on. 4 Simpson testified that Cisneros would continually isolate himself
with only female inmates. When inmates would crawl out of the pipe chases,
Cisneros would not move and would leave his genitalia at face-level, and
would make inappropriate sexual comments. In addition, Simpson testified
that Cisneros asked her on multiple occasions to perform sexual favors for
him.
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1
The Linda Woodsman State Jail is a female-only correctional facility.
2
The Prison Litigation Reform Act, which affects currently incarcerated
individuals, does not control here. See generally, 42 U.S.C. § 1997(e).
3
See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014). The district court concluded
that these allegations were not rebutted by counterevidence from Cisneros. Furthermore,
these statements included talking about his “sick dick[,]” flirting with inmates, and making
comments about “girl on girl” sex.
4
Foster also testified that he tried to grab her buttocks at a later date.
2
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No. 23-50678
Simpson also testified that Cisneros sexually assaulted her on two
occasions. One time, Cisneros reached into her shirt pocket to grab a
screwdriver and proceeded to grab her left breast, rub it, take the screwdriver,
and walk away. Another time, Cisneros stuck his hand into her pants
underneath her underwear and rubbed her genitals in front of another inmate,
stopping only when Simpson stepped as far forward as she could.
Olivarri testified that on one occasion she was assigned to fix a pipe
under Cisneros’ supervision. Cisneros was right behind her and—when she
turned to see him—Cisneros stuck his hand between her legs and started
rubbing her vaginal area. She testified that he pulled his hand out and away
only after she closed her legs.
B.
Cisneros moved for summary judgment, arguing that the Plaintiffs’
Eighth and Fourteenth Amendment claims did not survive scrutiny. In his
motion, Cisneros argued that Plaintiffs failed to plead a Fourteenth
Amendment claim and that—even if they did—Fourteenth Amendment
protections did not extend to prisoners. Plaintiffs filed a timely response, and
Cisneros replied.
On September 1, 2023, the Magistrate Judge issued his report and
recommendation on the motion for summary judgment. 5 In the report, the
Magistrate Judge recommended that the district court grant summary
judgment for the Defendant on the Eighth Amendment claims and deny
summary judgment on the Fourteenth Amendment claims. The Magistrate
Judge examined the applicability of the Fourteenth and the Eighth
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5
This was done pursuant to 28 U.S.C. §636(b)(1)(C), FED. R. CIV. P. 72(b), and
Rules 1(f) and 4(b) of Appendix C of the Local Rules for the U.S. District Courts in the
Western District of Texas.
3
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No. 23-50678
Amendment—and found the Fourteenth to be a source of relief for the
Plaintiffs.
Cisneros filed an objection to the Magistrate’s report, arguing: (1) no
Fourteenth Amendment claim had been pleaded, (2) the Fourteenth
Amendment framework did not control in the case, and (3) the conclusions
from the substantive due process analysis were erroneous. The Plaintiffs, as
both the district court and Cisneros noted, did not object to the Magistrate
Judge’s report. The district court adopted the report in full and issued
judgment on September 19, 2023. Cisneros filed a notice of appeal three days
later. 6
II.
The denial of a motion for summary judgment based on qualified
immunity is an immediately reviewable collateral order. 7 Summary judgment
is appropriate when the evidence and the pleadings show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 8 In reviewing an appeal from summary judgment, this
Court must “view the facts in the light most favorable to the non-moving
party and draw all reasonable inferences in its favor.” 9
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6
Specifically, Cisneros appeals the denial of his motion for summary judgment on
the Fourteenth Amendment violation.
7
See Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing Mitchell
v. Forsyth,
472 U.S. 511, 530 (1985)).
8
FED. R. CIV. P. 56(a). Here, the nonmoving parties are the three Plaintiffs.
Because of the lack of video evidence in this case, the added heft of facts from this form of
evidence is unavailable to the plaintiffs. See Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011).
9
Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Deville v. Marcantel,
567
F.3d 156, 163-64 (5th Cir. 2009)).
4
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The Magistrate Judge recommended the grant of summary judgment
to the Defendant under the Eighth Amendment—but not under the
Fourteenth Amendment—with the assumed facts. A failed summary
judgment motion denying qualified immunity is appealable under the
collateral-order doctrine. 10
III.
We turn to whether the Fourteenth Amendment’s substantive due
process doctrine protects inmates. It does not.
Cisneros argues that the district court erred in determining that the
plaintiffs pled a substantive due process claim under the Fourteenth
Amendment, as it is the Eighth Amendment—not the Fourteenth
Amendment—that protects incarcerated individuals. We construe the facts
in favor of the Plaintiffs and conclude that the Plaintiffs did assert a
Fourteenth Amendment substantive due process claim in their initial
complaint. 11
We now turn to whether the Plaintiffs—as inmates—could proceed
under the Fourteenth Amendment. 12 In general, the “substantive
component of the Due Process Clause under the Fourteenth Amendment
secures the right to be free of state-occasioned damage to a person’s bodily
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10
See Plumhoff v. Rickard, 572 U.S. 765, 772 (2014). This is “akin to a final
decision[,]” and a losing defendant “can bring an interlocutory appeal.” Roque v. Harvel,
993 F.3d 325, 331-32 (5th Cir. 2021).
11
In this interlocutory appeal, “we accept the plaintiffs’ version of the facts as
true.” Kinney, 367 F.3d at 348 (referencing Wagner v. Bay City, Tex.,
227 F.3d 316, 320 (5th
Cir. 2000). The factual dispute here is whether the Plaintiffs raised a Fourteenth
Amendment claim in their initial complaint.
12
See Kinney, 367 F.3d at 348 (explaining that on an appeal from summary
judgment in this context, the legal significance of conduct is the focal point of review).
5
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integrity.” 13 But when a particular constitutional amendment “provides an
explicit textual source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” 14
And, the Prison Rape Elimination Act of 2003 (“PREA”) notes that sexual
assault in prison implicates the Eighth Amendment. 15
Here, “the Eighth Amendment, which is specifically concerned with
the unnecessary and wanton infliction of pain in penal institutions, serves as
the primary source of substantive due process under the Fourteenth
Amendment.” 16 As the Eighth Amendment gives “an explicit textual source
of protection,” the Plaintiffs here have no claim under the Fourteenth
_____________________
13
Tyson v. Sabine, 42 F.4th 508, 517 (5th Cir. 2022) (citation omitted).
14
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor,
490 U.S.
386, 395 (1989)). See also United States v. Lanier,
520 U.S. 259, 272 n.7 (1997) (“[I]f a
constitutional claim is covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.”).
15
See 34 U.S.C. § 30301(13). This PREA subsection quotes Farmer v. Brennan,
511
U.S. 825 (1994), a Supreme Court case that ruled that deliberate indifference to the
substantial risk of sexual assault violates the Eighth Amendment. State and local prisoners
are protected by the Eighth Amendment as well. See also
34 U.S.C. § 30302(7) (listing one
of the purposes of PREA as protecting the Eighth Amendment rights of prisoners). PREA
establishes a “zero-tolerance standard” for rape in prison in the United States and applies
to all correctional facilities.
34 U.S.C. § 30301(1).
16
Whitley v. Albers, 475 U.S. 312, 327 (1986).
6
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Amendment. 17 The district court erred in applying a Fourteenth Amendment
framework. 18
IV.
The Eighth Amendment, not the Fourteenth Amendment, protects
prisoners from mistreatment and malfeasance. The district court in its
rulings held back final judgment against the Warden and the Assistant
Warden. 19 It is now in its hands to deal with what remains in this case. As the
Fourteenth Amendment claim is the only live issue on appeal here, we
REVERSE that ruling, GRANT summary judgment on the Fourteenth
Amendment, and REMAND the case for further proceedings.
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17
See Austin v. Johnson, 328 F.3d 204, 210 n.10 (5th Cir. 2003) (noting that the
explicit textual source of protection controls over the more generalized notion). See also
Pinkston v. Kuiper,
67 F.4th 237, 241 (5th Cir. 2023) (reasoning that the Supreme Court
instructs application of the specific textual provision over the general “substantive-dueprocess catchall”).
18
It is worth noting that the Plaintiffs in their initial complaint treated the Eighth
Amendment as controlling and changed tact only when the Magistrate Judge found
otherwise.
19
Prior to this appeal, the Warden and Assistant Warden of the jail were both
dismissed in a grant of a FED. R. CIV. P. 12(c) motion for judgment on the pleadings by the
district court. On September 15, 2022, Judge Alan D. Albright adopted the Magistrate
Judge’s report and recommendation in full over the noted objections of Plaintiffs’ counsel.
Defense counsel for the Warden and the Assistant Warden moved for entry of final
judgment but Judge Albright denied their motion.
7
