Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995). · Go Syfert
Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995). Cases Citing This Book View Copy Cite
70 citation events (53 in the last 25 years) across 14 distinct courts.
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At page 1037 Verbal harassment not violating eighth amendment22 citing cases“her claim remains bounded by the Eighth Amendment, the ‘explicit textual source of constitutional protection,’ Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) in the prison context”4 citing courts quote it · 20 listed here
  • Griffith v. El Paso Cnty., 129 F.4th 790 (10th Cir. 2025).published 2 cites
    Appellees principally rely on Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995), and Hyberg v. Enslow, 801 F. App’x 647 , 650 (10th Cir. 2020).
  • Lovato v. Lytle, No. 1:22-cv-00255 (D.N.M. July 2, 2024).
    (refusing to “infuse defendant’s words of sexual harassment with the sort of violence or threats of violence cognizable [under the Eighth Amendment])
  • Williams v. Bunting, No. 5:21-cv-03078 (D. Kan. Aug. 10, 2021).
    (verbal sexual harassment does not amount to Eighth Amendment violation)
  • Hope v. Glover, No. 4:20-cv-00082 (D. Utah July 29, 2021).
    (verbal sexual harassment toward inmate was not a constitutional violation)
  • Perna v. Martinez, No. 1:17-cv-11643, 2021 WL 1210357 (D. Mass. Mar. 31, 2021).
    Mass. 2011) (“Although Chao brought several constitutional claims, they are primarily ‘bounded by the Eighth Amendment, the explicit textual source of constitutional protection in the prison context.’”) (quoting Adkins v. Rodriguez, 59 F.3…
  • Casillas v. Westerfield, No. 1:17-cv-01251 (D.N.M. Mar. 4, 2020).
    Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995).
  • Reyes v. Corn, No. 2:17-cv-00815 (D.N.M. Jan. 30, 2020). 2 cites
    “bounded by the Eighth Amendment, the explicit textual source of constitutional protection in the prison context”
  • Casillas v. Westerfield, No. 1:17-cv-01251 (D.N.M. Jan. 13, 2020).
    Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995).
  • Castillo v. Day, 790 F.3d 1013 (10th Cir. 2015).published
    “the sort of violence or threats of violence cognizable in the conditions of confinement cases the [Supreme Court] has addressed”
  • Wishneski v. Andrade, 572 F. App'x 563 (10th Cir. 2014).unpublished
    We have repeatedly eschewed duplicative analyses of Eighth Amendment claims under other constitutional provisions, explaining that “claims concerning conditions of confinement [such as prison medical care] ‘remain[ ] bounded by the Eighth…
Show 10 more citing cases
  • Chao v. Ballista, 772 F. Supp. 2d 337 (D. Mass. 2011).published
    “bounded by the Eighth Amendment, the ‘explicit textual source of constitutional protection’ in the prison context”
  • Scott v. Inmate Accounts-Doc, 75 F. App'x 708 (10th Cir. 2003).unpublished
    Because the Eighth Amendment is “the explicit textual source of constitutional protection in the prison context,” Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir.1995) (internal quotation marks and citation omitted), the court determined…
  • Hammond v. Gordon Cnty., 316 F. Supp. 2d 1262 (N.D. Ga. 2002).published
    Barney, 143 F.3d at 1311 n. 11 (noting “acts of verbal harassment alone are not sufficient to state a claim under the Eighth Amendment”); Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir.1995) (same).
  • Smith v. Cochran, 216 F. Supp. 2d 1286 (N.D. Okla. 2001).published
    “her claim remains bounded by the Eighth Amendment, the ‘explicit textual source of constitutional protection,’ Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) in the prison context”
  • Shabazz v. Cole, 69 F. Supp. 2d 177 (D. Mass. 1999).published
    Although the Eighth Amendment provides the more explicit source of protection in the prison context, see Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir.1995), this court will also examine the claim in the context of substantive due proc…
  • Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998).published 4 cites
    “remain[ ] bounded by the Eighth Amendment, the explicit textual source of constitutional protection in the prison context”
  • John Michael Ricks v. (Nfn) MacKey Lt. Col., 141 F.3d 1185 (10th Cir. 1998).published 2 cites
    Id.; see also Hunt v. Downing, 112 F.3d 452, 453 (10th Cir.1997); Grimsley v. MacKay, 93 F.3d 676, 680-81 (10th Cir.1996); Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir.1995). 10 We agree with the district court that the Farmer standar…
  • Bowie v. California Dept. of Corr., 99 F.3d 1145 (9th Cir. 1996).unpublished
    Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir.1995).
  • Penrod v. Zavaras, 94 F.3d 1399 (10th Cir. 1996).published
    “deliberate indifference” to inmate health or safety”
  • Struble v. Deputy Haynes, No. 99-3280 (10th Cir. Dec. 20, 1999).unpublished
    See Adkins v. Rodriguez , 59 F.3d 1034, 1037-38 (10th Cir. 1995); see also Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979) (finding verbal harassment or abuse is insufficient to state a constitutional violation under § 1983).
At page 1036 Defining qualified immunity as an affirmative defense18 citing cases“qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset”5 citing courts quote it
  • Griffith v. El Paso Cnty., 129 F.4th 790 (10th Cir. 2025).published 2 cites
    Appellees principally rely on Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995), and Hyberg v. Enslow, 801 F. App’x 647 , 650 (10th Cir. 2020).
  • Frederickson v. Larimer Cnty., No. 1:22-cv-00262 (D. Colo. Feb. 15, 2023).
    Qualified Immunity “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 103…
  • Nolan v. City of La Junta, No. 1:21-cv-02424 (D. Colo. Jan. 10, 2023).
    No. 48 at 8, 10-13.) “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 1…
  • Halik v. Pinnock, No. 1:21-cv-02456 (D. Colo. Sept. 2, 2022).
    Qualified Immunity “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 103…
  • Amaro v. New Mexico Corr. Dep't, No. 1:20-cv-01308 (D.N.M. Mar. 16, 2022).
    Qualified Immunity “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 103…
  • Miller v. IPRA Custodian, No. 1:21-cv-00473 (D.N.M. Feb. 22, 2022).
    “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)).
  • Halik v. Brewer, No. 1:21-cv-00508 (D. Colo. Feb. 17, 2022).
    No. 6 at 3 & n.3.) “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 103…
  • Adkins v. City of Colorado Springs, No. 1:20-cv-01022, 2021 WL 810107 (D. Colo. Mar. 3, 2021).
    Qualified Immunity “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 103…
  • Reyes v. Corn, No. 2:17-cv-00815 (D.N.M. Jan. 30, 2020). 2 cites
    Plaintiff’s claims are “bounded by the Eighth Amendment, the explicit textual source of constitutional protection in the prison context.” Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995) (citation omitted).
  • Arnold (ID 90705) v. Wichita, City of, Police Dep't, No. 5:19-cv-03016 (D. Kan. Jan. 13, 2020).
    “[Q]ualified immunity is an affirmative defense to a section 1983 action”
Show 8 more citing cases
  • Gardiner (ID 46842) v. McBryde, No. 5:15-cv-03151 (D. Kan. Jan. 3, 2020).
    “[Q]ualified immunity is an affirmative defense to a section 1983 action”
  • Evans v. Heimgartner, No. 5:16-cv-03095 (D. Kan. Nov. 6, 2019).
    “[Q]ualified immunity is an affirmative defense to a section 1983 action”
  • Reynolds v. Powell, 370 F.3d 1028 (10th Cir. 2004).published
    “qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset”
  • Smith v. Lejeune, 203 F. Supp. 2d 1260 (D. Wyo. 2002).published
    Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir.2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir.1995).
  • DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001).published
    “[Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset”
  • Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001).published 2 cites
    Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995).
  • Gross v. Pirtle, 245 F.3d 1151 (10th Cir. 2001).published
    Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir.2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir.1995).
  • Fletcher v. Summit Food, No. 2:18-cv-01220 (D.N.M. Apr. 29, 2020).
    (noting there have been “no [sexual harassment] case[s] involving an Eighth Amendment violation absent prisoner contact or touching)
verbal sexual harassment by jailer, while outrageous and unacceptable, did not amount to a violation of the inmate’s Eighth Amendment rightsno pin page on record · 2 citing cases listed
  • Triggs v. Patterson, No. 6:24-cv-01661 (W.D. La. May 9, 2025).
    (verbal sexual harassment by jailer, while outrageous and unacceptable, did not amount to a violation of the inmate’s Eighth Amendment rights)
  • Williamson v. Lafayette Par. Corr. Ctr., No. 6:21-cv-03880 (W.D. La. June 27, 2022).
    (verbal sexual harassment by jailer, while outrageous and unacceptable, did not amount to a violation of the inmate’s Eighth Amendment rights)
Other citing cases3 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Shelly Ann ADKINS
v.
Kenneth RODRIGUEZ, also known as Kenny Rodriguez, and Harold Martinez John Hurtado Michael Duran, also known as Michael Durand Kevin Martinez Xavier Sandoval William Reiners Neal Cocco, as County Commissioners for Huerfano County
No. 94-1328.
Court of Appeals for the Tenth Circuit.
Jul 6, 1995.
Published opinion
59 F.3d 1034
1995 WL 395182
1995 U.S. App. LEXIS 16562
James M. Croshal, Gradisar, Treehter, Ripperger & Croshal, Pueblo, CO, for plaintiff-appellant., Robert M. Liechty (Theodore S. Halaby with him on the brief), Halaby Cross Liechty Schluter & Buck, Denver, CO, for defendantappellee Rodriguez.
Daugherty, Logan, Moore.
Cited by 29 opinions  |  Published
JOHN P. MOORE, Circuit Judge.

Shelly Ann Adkins appeals the dismissal of her § 1983 complaint. She contends that while she was incarcerated, Kenneth Rodriguez, a prison deputy, violated her rights to privacy and to be free of sexual intimidation as guaranteed by the First, Third, Fourth, Fifth, Eighth, Ninth, and Fourteenth amendments. Although Ms. Adkins urges us to free her claim from the sole confines of the Eighth Amendment, neither the facts of the case nor the law provides support to do so. We, therefore, affirm.

From January 6, 1990, through March 22, 1990, Ms. Adkins was serving a sentence for a felony conviction at the Huerfano County Jail. During that time, Deputy Rodriguez, a trainee in the Huerfano County Sheriffs Department, made verbal comments to Ms. Adkins about her body, his own sexual prowess, and his sexual conquests. Ms. Adkins complained to Sergeant Deborah Garcia, a detention officer and dispatcher at the jail. Sergeant Garcia immediately spoke to Deputy Rodriguez, telling him male guards should use the intercom to speak to female prisoners and confine their conversations to business matters.[1] Sergeant Garcia told Deputy Rod[*1036]riguez to “stay completely away' from the cell.” Despite these instructions, Deputy Rodriguez resumed making sexually suggestive comments to Ms. Adkins after she returned to the facility.[2]

On March 22, the specific incident precipitating this lawsuit occurred. Working the graveyard shift with Sergeant Miguel Duran, who had fallen asleep, Deputy Rodriguez removed the keys to the cells in A block where female prisoners are housed. After checking her neighbor’s cell, Deputy Rodriguez entered Ms. Adkins’ cell. As he stood over her bed looking at her, Ms. Adkins opened her eyes and asked him what he was doing. He answered he was checking on her, and as he left, told her, “By the way, you have nice breasts.” Ms. Adkins immediately informed Sergeant Garcia,. who summoned Deputy Rodriguez.

Despite Deputy Rodriguez’s explanation he heard Ms. Adkins moaning in pain and entered her cell to bring her medication for a toothache, Captain Robert Martinez immediately suspended him for a week beginning on March 22 to complete an internal investigation. On March 26, 1990, Sheriff Harold Martinez recommended Deputy Rodriguez resign or be terminated, citing the liability created by his inability to follow the rules. Deputy Rodriguez resigned that same day.

The district court dismissed Ms. Adkins’ complaint against defendant Rodriguez[3] finding no clearly established right under the Eighth Amendment at the time of his actions for a prisoner to be free of verbal sexual harassment. Recognizing that “extreme deprivations,” Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986), must underlie a conditions of confinement claim under the Eighth Amendment, the district court was constrained to construe Ms. Adkins’ complaint to suggest she “was denied ‘the minimal civilized measure of life’s necessities,’” quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). The court further reasoned, because allegations of sexual harassment do not state a section 1983 violation in an employment context, Poe v. Haydon, 853 F.2d 418 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989); therefore, Ms. Adkins could not set forth a claim showing a clearly established right to be free of sexual harassment in a prison setting. Upon this basis, the court granted defendant qualified immunity from suit.

In this appeal, Ms. Adkins contends the right of privacy is not entirely extinguished in a prison setting nor exclusively bounded by the contours of the Eighth Amendment. She relies upon Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.1982) (per curiam), which stated, “[ajlthough the inmates’ right to privacy must yield to the penal institution’s need to maintain security, it does not vanish altogether.” While conceding she has found no case involving an Eighth Amendment violation absent prisoner contact or touching, Ms. Adkins characterizes the implicit threat within the alleged sexual harassment as force sufficient to amount to a type of physical assault.

Our de novo review of the district court’s granting summary judgment of Rodriguez’s qualified immunity defense proceeds “somewhat differently than other summary judgment rulings.” Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.1990). Having raised the defense of qualified immunity, defendant then places the onus on the plaintiff to establish defendant has violated a clearly established law. Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir.1993). Because qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset, we have stated, “[t]he question of qualified immunity therefore dovetails almost precisely with the substantive inquiry in a section 1983 action; both depend on the specific contours of the constitutional right at issue.” Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir.1995).

Consequently, Ms. Adkins bears the burden of establishing that in 1990, she[*1037] had a clearly established right to be free from verbal sexual harassment while an inmate at the Huerfano County Jail. Although she generally invokes the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, her claim remains bounded by the Eighth Amendment, the “explicit textual source of constitutional protection,” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), in the prison context.[4] “It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, — U.S. —, —, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993).

Guided by “contemporary standards of decency,” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), the Court has addressed those minimal standards of providing humane conditions of confinement, Helling, — U.S. at —, 113 S.Ct. at 2480, and prison officials’ duties to assure the safety of inmates. Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984). Even under these parameters, the Court will find an Eighth Amendment violation only when the alleged deprivation is “objectively, ‘sufficiently serious,’ ” and the prison official acts with “ ‘deliberate indifference’ to inmate health or safety.” Farmer v. Brennan, — U.S. —, —, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 302-03, 111 S.Ct. 2321, 2323-24, 2326-27, 115 L.Ed.2d 271 (1991)). In Farmer the Court resolved the meaning of the deliberate indifference standard. “[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, — U.S. at —, 114 S.Ct. at 1984.

Here, Ms. Adkins alleged the sexual harassment and the unauthorized appearance of Deputy Rodriguez in her cell violated her rights “to be free from threats of violence and sexual assault and/or sexual intimidation, to be free from cruel and unusual punishment, to be free from unjustified harassment.” While she has described outrageous and unacceptable conduct by a jailer, we must find the connection between those acts and the constitutional right violated. “[N]ot ... every malevolent touch by a prison guard gives rise to a federal cause of action____ The Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (internal quotation marks and citations omitted; emphasis supplied).

Although Ms. Adkins did not allege defendant touched her, she maintains his verbal abuse is tantamount to the physical intimidation proscribed in Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980) (Eighth Amendment includes inmates’ right to reasonably safe environment), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). However, in the context of Eighth Amendment precedent, under the facts alleged here, we cannot infuse defendant’s words of sexual harassment with the sort of violence or threats of violence cognizable in the conditions of confinement cases the Court has addressed. See, e.g., Hudson, 503 U.S. at 1, 112 S.Ct. at 996 (use of excessive force against prisoner beaten by prison guards may constitute cruel and unusual punishment even if inmate does not suffer serious bodily injury). Nor does our own precedent upon which Ms. Adkins relies, Cumbey, 684 F.2d at 712, and Hovater, 1 F.3d at 1063, support her claim.

Although we stated in Cumbey inmates have a right to privacy limited by legitimate penological interests in prison security, the statement was addressed to a threshold determination whether plaintiffs entire action[*1038] was properly dismissed as frivolous. Thus, we vacated a portion of a district court’s order dismissing an inmate’s complaint that female guards’ regular viewing of male inmates engaged in personal activities does not “necessarily fall short of a cognizable constitutional claim.” 684 F.2d at 714.

In Hovater, we upheld the grant of qualified immunity to a sheriff whose detention officer forcibly sodomized a female inmate in the jail he supervised. Although the claim there was not asserted against the perpetrator as here, the ease provides us a guide because we applied the deliberate indifference standard. We concluded while “an inmate has a constitutional right to be secure in her bodily integrity and free from attack by prison guards,” 1 F.3d at 1068, absent the allegation defendant knew his detention officer posed a threat of safety to female inmates, plaintiff failed to meet her burden of establishing a constitutional violation. Ms. Adkins’ allegations are similarly flawed because she did not establish the single invasion! of her cell constituted the deliberate indifference required for a violation of her Eighth Amendment rights. The district court therefore properly granted summary judgment on defendant’s affirmative defense of qualified immunity.

We AFFIRM.

1

In fact, Deputy Rodriguez had used the intercom to address Ms. Adkins, asking her, as overheard by other inmates, if she still loved him.

2

During the first half of March, Ms. Adkins had to attend another court proceeding in Fremont County, Colorado.

3

We do not address Ms. Adkins’ claims against other county officials, the district court having dismissed them as well. Ms. Adkins has not raised them in this appeal.

4

Indeed, Ms. Adkins’ allegations are insufficient under any but the Eighth Amendment. For example, she does not allege the violation of her right of privacy arose out of an unreasonable search or seizure under the Fourth Amendment or she was denied substantive due process under the Fourteenth Amendment when she was sexually harassed.