any alleged sexual abuse case that considered whether there was "deliberate indifference" to a pretrial detainee.
In Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989), cert. denied sub nom. Smith v. Stoneking, 493 U.S. 1044, 107 L. Ed. 2d 835, 110 S. Ct. 840 (1990), the United States Court of Appeals for the Third Circuit, in a case about substantial sexual abuse of a student by a teacher that was considered by the United States Supreme Court and then remanded, stated: "we reiterate the conclusion we reached in Stoneking I that the constitutional right Stoneking alleges, to freedom from invasion of her personal security through sexual abuse, was well-established at the time the assaults upon her occurred." The Third Circuit quoted Ingraham v. Wright, 430 U.S. 651, 673, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977) as holding that " 'among the historic liberties . . . protected [by the Due Process Clause] was a right to be free from . . . unjustified intrusions on personal security.' " Stoneking, 882 F.2d at 726-27. Moreover, courts have specifically concluded that intentional sexual touching or other sexual contact with a convicted prisoner by a prison employee such as a correctional officer may violate the Constitution. Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (convicted prisoner); Gilson v. Cox, 711 F. Supp. 354, 355-56 (E.D. Mich. 1989) (convicted prisoner; court denied summary judgment on claims that correctional officer had "grabbed his [prisoner's] genitals and buttocks"); Stacey v. Ford, 554 F. Supp. 8, 9-10 (N.D. Ga. 1982) (convicted prisoner; court denied summary judgment on claim that prison officer "abused [the prisoner] by grabbing his genitals").
Applying the applicable law to the instant facts and emphasizing that a pretrial detainee generally is entitled to at least as much constitutional protection as a convicted prisoner, the court will deny the motion for partial summary judgment and will not award summary judgment sua sponte to defendant McHale because plaintiff Banks may be entitled to relief on his sexual abuse due process claim and because genuine issues of material fact exist.
A date for the trial of this substantive due process claim against defendant McHale will be set at the convenience of the court. The court has no opinion on whether Bracy's and Morrison's claims need to be tried.
Finally, it appears to the court that no cognizable claim is stated against the Lackawanna County Commissioners--the plaintiffs seek to hold them liable under a theory of respondeat superior. After giving a plaintiff the opportunity to respond, a district court may dismiss sua sponte an allegation of unlawful conduct if it fails to state a claim upon which relief can be granted. Oatess v. Sobolevitch, 914 F.2d 428, 430 n.5 (3d Cir. 1990); Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1990). See Fed. R. Civ. P. 12(b)(6). The court will grant the plaintiffs fifteen (15) days from the date of this Order in which to file a brief(s) with the court stating why they feel that dismissal of the allegations against the Commissioners would be inappropriate. If necessary, the Commissioners will be given an opportunity to respond to the plaintiffs' brief(s). If the plaintiffs fail to submit in timely fashion any brief, or if they submit objections that lack merit, the Commissioners will be dismissed from this suit. An appropriate order is attached.
JAMES F. McCLURE, JR.
United States District Judge
Dated: June 14, 1996
AND NOW, THIS 14th DAY OF JUNE, 1996, IT IS HEREBY ORDERED THAT:
1. The Clerk of Court is directed to amend the record to reflect the correct spelling of defendant George McHale's name.