The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
At the time of the events giving rise to this action the Plaintiff Tiffany Casillas (now Thompson) was a student a Black River Technical College, a State institution of higher learning, located in Pocohantas, Arkansas. The Defendant Dr. Randall Guntharp was a part-time adjunct professor teaching anatomy and physiology at the college. He was also a licensed medical doctor who was board certified in family practice. He was 49 years of age and plaintiff, his student, was one week shy of her 21st birthday.
On March 20, 2005, while plaintiff was attending Defendant's Anatomy Lab between the hours of 6:00 and 7:00 p.m., a video on colorectal cancer was shown to the twelve or thirteen students in the class. During the video the Plaintiff sat next to Dr. Guntharp. She asked him if breast cancer is hereditary. He responded that there was a strong family hereditary component and asked her if she had any family members who had breast cancer. She answered, yes, noting that her grandmother (or great grandmother) had had breast cancer. She then asked when would be the appropriate age at which to be checked. When she told him her age, Dr. Guntharp told her that she should have already been tested. He then asked her if she knew how to do a self-exam.
According to Dr. Guntharp, this conversation took place while he walked over to rewind the video tape. Dr. Guntharp stated that the Plaintiff said that she did not know how to do a breast examination and that she had never had one. He then inquired if she had had a pap smear and advised her that she should have a breast examination when she has a pap test.
There was a standup mannequin model in the lab room which had a breast addition. According to Dr. Guntharp, he pointed out to the Plaintiff that the model did not show all of the areas of breast tissue that one needed to check. The model did not show the "tail" on the breast tissue which goes around under the armpit. Dr. Guntharp then asked the Plaintiff to raise one arm. She complied. He then took her other hand and placed it over her clothing; under the armpit area of the left arm while instructing her how to conduct a self-examination and what to look for. According to Dr. Guntharp, the Plaintiff then stated that she did not know what to feel for at which point he quickly raised her shirt and raised up her bra and took her hand to follow his hand as he felt her breast. He states he used three fingers in the manner in which doctors always conduct such exams going around in smaller and smaller circles and then squeezing the nipple to see if there was any secretion. He estimates that the whole episode from start to finish may have lasted two minutes.
The Plaintiff Casillas' statement of the facts is different in some important respects. She acknowledges that she asked Dr. Guntharp if breast cancer was hereditary and that he then asked if anyone in her family had breast cancer. He then asked her if she knew how to conduct a breast self-examination. She stated, "No, I will ask my doctor." She acknowledges that he asked her to raise her arm and that she did. She states she did not realize what was happening when he suddenly put his hand under her shirt, raised her bra and exposed her breast. She acknowledged that he used a circular motion when "examining" her breast and that he squeezed the nipple to see if there was any secretion. Before he exposed her breast Plaintiff had no idea of his intentions and she was shocked and scared when he did so. She knew that he was a medical doctor but stated firmly that she did not consent to such an examination and was not aware that he was going to expose her breast before he quickly raised her shirt and bra, and the Court so finds.
There is no evidence that the Defendant made any sexual statements or innuendoes during this episode, and Plaintiff candidly acknowledged that she does not know what his intentions were or if he was seeking sexual gratification. Plaintiff does claim that while Defendant started by touching or examining her breast with two or three fingers he also "fondled" her with his full hand, palm open. Defendant denies he fondled Plaintiff and insists he demonstrated how to conduct a breast self-exam just as any doctor would do with a patient in his/her office.*fn1 It is clear to the Court that Plaintiff, at the beginning, was sincerely seeking information from the Defendant and that she was a willing participant until the Defendant suddenly, without forewarning and without Plaintiff's permission, exposed her breasts. Until then the Defendant had only gone to the point of noting, and demonstrating, that a proper breast examination must include the "tail" or axilla tissue going from the armpit area back to the breast proper. Plaintiff acknowledged that she was not uncomfortable until she was "exposed."
While there is no evidence from which an inference of malicious intent on Defendant's part can be drawn, Defendant's conduct was not only inappropriate, it was entirely unjustifiable.
The relationship between the Defendant and the Plaintiff was one of teacher-student, not patient-doctor. Defendant provided Plaintiff with no warning that he was going to, or needed to, expose or touch her breast, and Plaintiff clearly gave no consent to such an intrusion into her private space.
The question remains: has Plaintiff proved by a preponderance of the evidence the necessary elements of either her federal or her state cause of action?*fn2
The Court will here repeat a portion of its analysis of the law dealing with each of these causes of action. First, to prevail on her § 1983 Substantive Due Process Claim, the Plaintiff must prove: "(1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right." Hart v. City of Little Rock, 432 F.3d 801, 804-05 (8th Cir. 2005) (citations omitted). "[T]he Fourteenth Amendment to the Constitution protects substantive aspects of an individual's liberty from impermissible government restrictions." Hawkins v. Holloway, 316 F.3d 777, 780 (8th Cir. 2003) (citations omitted). "Substantive due process offers only limited protections and only guards against the exercise of arbitrary and oppressive government power." Id. (citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).
"[T]he constitutional concept of conscience shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability," Lewis, 523 U.S. at 848, 118 S.Ct. 1708, and "liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process," Id. at 849, 118 S.Ct. 1708. Instead, "[a]ctionable substantive due process claims involve a level of ... abuse of power so brutal and offensive that [they do] not comport with traditional ideas of fair play and decency." Avalos, 382 F.3d at 800 (quoting S.S., 225 F.3d at 964) (internal quotations omitted); see also Moran v. Clarke, 296 F.3d 638, 647 (8th Cir.2002) (Substantive due process violations involve conduct "so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.") (quoting In re Scott County Master Docket, 672 F.Supp. 1152, 1166 (D.Minn.1987)). "Proof of intent to harm is usually required, but in some cases, proof of deliberate indifference, an intermediate level of culpability, will satisfy this substantive due process threshold." Terrell v. Larson, 396 F.3d 975, 978 (8th Cir.2005) (citing Lewis, 523 U.S. at 848-49, 118 S.Ct. 1708) (holding the deliberate indifference standard is applied when actual deliberation is practical)). Hart v. City of Little Rock, 432 F.3d 801, 806 (8th Cir. 2005).
"In the context of allegations that a state official has abused his executive power, the test we employ to ascertain a valid substantive due process violation is 'whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Hawkins, 316 F.3d at 780 (citing County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). "[W]hether assaultive conduct 'shocks the conscience' to a degree sufficient to be cognizable as a constitutional claim depends upon both the nature of the injury or intrusion and the degree to which the intrusion is 'unjustifiable by any government interest.'" Busch v. City of Anthon, Iowa, 173 F. Supp.2d 876, 889 (N.D. Iowa 2001). "The Supreme Court has been reluctant to expand the protections afforded by substantive due process 'because guideposts for responsible decision making in this unchartered area are scarce and open-ended,' and it has only done so with the 'exercise [of] the utmost care.'" Hawkins, 316 F.3d at 780-81 (citing Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)).
"The guarantee of due process draws a line between the power of the government, on the one hand, and the security of the individual, on the other." Id. at 781 (citing Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir.1986)). "This line is not a fixed one like a property boundary." Id. "Its location must be surveyed anew by the court in each case through an examination of the benchmarks disclosed by the circumstances surrounding the case." Id.
"A sexual assault can be a constitutional violation under section 1983." Haberthur v. City of Raymore, 119 F.3d 720, 723 (8th Cir. 1997) (citing Harris v. City of Pagedale, 821 F.2d 499, 508 (8th Cir. 1987) (city liable under section 1983 when police officer sexually fondled and raped a woman)). "This type of constitutional injury has been described as a violation of the substantive due process right to bodily integrity or privacy, and the courts of appeal have recognized that the right may be violated by sexual fondling and touching or other egregious sexual contact." Id.*fn3
In Hawkins, the Eighth Circuit noted that the Supreme Court had not yet had the opportunity to address whether a sexual assault committed by a state actor may give rise to an actionable substantive due process violation under § 1983, but reviewed the cases in which it had considered the issue, stating:
In Haberthur, we reversed the district court's dismissal of a plaintiff's substantive due process claim arising out of a police officer's sexually-assaultive conduct. We recognized that an actionable claim under § 1983 for a substantive due process violation may accrue where a public official engages in "sexual fondling and touching or other egregious sexual contact" under color of state law and concluded the plaintiff alleged facts demonstrating such conduct. Haberthur, 119 F.3d at 723. In particular, the plaintiff alleged that the police officer showed up at her workplace, placed his hands under her shirt and fondled her breast, and caressed her body while making sexually suggestive comments to her. Id. at 724. We characterized the alleged conduct as "intrusive, demeaning, and violative of [the plaintiff's] personal integrity," and recognized that the officer had threatened adverse police action in making his unwanted advances. Id. A little over a year later, in Rogers, we upheld a district court's finding following a bench trial that a police officer had sexually assaulted a woman in violation of her substantive due process rights. 152 F.3d at 797. The facts established that the officer pulled the woman over for a traffic violation and later followed her home under the guise of obtaining her missing proof of automobile insurance. At her home, the officer ordered her to disrobe, pushed her onto her bed, and had sexual intercourse with her. We concluded that the facts supported a finding that the intercourse was nonconsensual and that the officer accomplished the rape through the exercise of coercive power that he possessed ...