Villanueva v. San Marcos Con Indep, et al

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1Villanueva does not challenge the district court’s summary
judgment grant to SMCISD in this appeal.
United States Court of Appeals
Fifth Circuit
F I L E D
July 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-51643
SUMMARY CALENDAR
FRED VILLANUEVA,
AS NEXT FRIEND OF MARISA VILLANUEVA, A MINOR,
Plaintiff-Appellant,
versus
SAN MARCOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT;
DYANNA EASTWOOD, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas, Austin Division
Case No. 1:05-CV-445
Before JONES, Chief Judge, and HIGGINBOTHAM, and SMITH, Circuit
Judges.
PER CURIAM:*
Fred Villanueva (“Villanueva”) brings this civil-rights
action under 42 U.S.C. § 1983 as next friend of his teenage
daughter Marisa Villanueva, asserting that Dyanna Eastwood
(“Eastwood”), a nurse employed by the San Marcos Consolidated
Independent School District (“SMCISD”),1 violated the Fourth and

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Fourteenth Amendments by requiring his daughter to submit a urine
sample for pregnancy testing. Finding that Villanueva failed to
present competent summary judgment proof that Eastwood’s actions
were objectively unreasonable in light of clearly established law
at the time of the incident, the district court granted summary
judgment to Appellees and dismissed all claims. We affirm.
The record evidence reveals — and the litigants agree —
that Eastwood summoned Marisa to the school infirmary after being
informed by Marisa’s boyfriend and another student that they both
had had sexual intercourse with her recently and believed she was
pregnant. Marisa denied being pregnant but admitted to having
missed her most recent menstrual period. And Marisa admits she did
not object to taking the test. In her deposition testimony,
however, Marisa stated that, “I felt forced to take [the pregnancy
test] so I took it. I didn’t want to say ‘no’ because I didn’t
know what was going to happen if I said ‘no.’” She recalled
fearing she “was going to get in trouble” if she refused.
Eastwood, in contrast, contends that she did not force Marisa to be
tested, but instead “asked what [Marisa] wanted to do at this
point, [stating] that it was up to her, and she could wait and see
[if she was pregnant] . . . [a]nd I said . . . ‘It’s your call.’”
Villanueva does not dispute Eastwood’s testimony. Ultimately,
Marisa agreed to take the test and submitted a urine sample that
revealed she was not pregnant.

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Viewing the record evidence in the light most favorable
to Villanueva, see Lincoln Gen. Ins. Co. v. Aisha’s Learning
Center, 468 F.3d 857, 858 (5th Cir. 2006), we agree with the
district court that Appellant has failed to create a genuine issue
of material fact that Eastwood’s actions were objectively
unreasonable and that she tested Marisa in violation of her
constitutional rights. Villanueva bears the burden of proving that
Eastwood is not entitled to qualified immunity. McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc). In order
to overcome the qualified immunity defense, Villanueva must allege
that Eastwood violated a clearly established constitutional right
and that her behavior was objectively unreasonable in light of
clearly established law at the time the incident transpired.
Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006) (per curiam).
A defendant’s behavior cannot be deemed objectively unreasonable
unless all reasonable officials in her position and facing similar
circumstances would have known such behavior to violate the
Constitution or an applicable federal statute. See Felton v.
Polles, 315 F.3d 470, 477 (5th Cir. 2002).
Contrary to Villanueva’s allegation that Eastwood
harangued his unwilling daughter into submitting a urine sample,
the record contains no evidence of coercion on Eastwood’s part or
any indication that Marisa did not voluntarily consent to testing.
Even assuming arguendo that Eastwood’s administration of the
pregnancy test violated a clearly established constitutional right,

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2Notwithstanding that Eastwood is entitled to qualified
immunity, it is also plain that this controversy might have been
averted had Eastwood or Dr. Kelly convened a meeting with
Marisa’s parents at the outset, rather than allowing them to
learn after the fact about the pregnancy test and Eastwood’s
encouraging Marisa to go on birth control pills at the age of
fifteen.
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there is no record evidence to suggest that Eastwood’s behavior was
unreasonable, that Marisa’s decision was coerced, or that Eastwood
threatened or intimidated Marisa into submitting to the test.
Marisa’s subjective belief that she was required to be tested and
her unsubstantiated speculation that a refusal could result in
adverse consequences do not constitute competent summary judgment
evidence. See Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d
466, 468 (5th Cir. 2002); Hall v. Thomas, 190 F.3d 693, 698 (5th
Cir. 1999).2
After a careful review of the parties’ briefs and
pertinent record evidence, we find no reversible error of law or
fact by the district court. We therefore AFFIRM the district
court’s grant of summary judgment to Eastwood and SMCISD.
AFFIRMED.

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