United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
Cynthia Reed Eddy United States Magistrate Judge
the Court is Defendant's motion to dismiss with brief in
support (ECF Nos. 18 and 19). After careful consideration of
the motion and brief, in light of the standards governing
motions to dismiss set forth by the United States Supreme
Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 668
(2009), and as articulated in United States Court of Appeals
Third Circuit precedent, see, e.g., Connelly v. Lane
Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016), and for
the following reasons, the motion will be denied.
Chester Belback (“Plaintiff” or
“Belback”) is a state prisoner in the custody of
the Pennsylvania Department of Corrections
(“DOC”) currently confined at SCI - Forest. The
events giving rise to this lawsuit occurred while Plaintiff
was incarcerated at SCI-Greene. Through his Complaint,
Plaintiff alleges that he was subjected to sexual harassment
by Defendant Joseph Barner.
purposes of resolving the pending motion, the facts as
alleged in the complaint, are viewed in the light most
favorable to Plaintiff, and liberally construed. Phillips
v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008); Haines v. Kerner, 404 U.S. 519, 520-521
(1972). Pro se pleadings, however “inartfully
pleaded” must be held to “less stringent
standards than formal pleadings drafted by lawyers.”
Haines, 404 U.S. at 520-21. Because Plaintiff is a
pro se litigant, this Court may consider facts and
make inferences where it is appropriate.
contends that Defendant engaged in sexual harassment when he
conducted routine pat searches during the month of June 2016,
and when he poked Plaintiff's backside with a pen on July
6, 2016. Specifically, Plaintiff alleges that during the
month of June, 2016, while he was leaving the maintenance
department, Defendant Barner would conduct the pat search
he would reach around and squeeze or caress my chest like I
had female breast. Mr. Barner would also squeeze or caress my
buttocks, and at times put his hand in between my legs and
swipe his hand up in the crack of my buttocks. . . . On
7-6-16, Mr. Joseph Barner poked me in my buttocks with his
pen as he was sitting at his desk. . . .
reported the July 6, 2016, incident to the paint shop
supervisor and to his Unit Manager, who both filled out an
incident report, and Plaintiff completed a PREA report. In
October 2016, Plaintiff was notified that after a PREA
investigation his allegation had been substantiated and a
local separation order would be put in place. Plaintiff
subsequently was transferred to SCI-Forest.
filed the instant motion to dismiss (ECF No. 18), arguing
that Plaintiff has failed to state a claim upon which relief
may be granted. Despite having been granted ample time to do
so, Plaintiff has failed to file a response to the motion.
This matter is now ripe for consideration.
moves for dismissal of the claims against him arguing that
Plaintiff has failed to state a constitutional claim because
the allegations regarding Defendant Barner's conduct do
not come close to describing physical contact or assault
which could satisfy the objective component of the Eighth
the Eighth Amendment, prisoners are constitutionally
protected from cruel and unusual punishment. Farmer v.
Brennan, 511 U.S. 825 (1991). The Eighth Amendment
prohibits conditions of confinement that violate
“evolving standards of decency” or which
“involve the unnecessary and wanton infliction of
pain.” Estelle v. Gamble, 429 U.S. 97, 102-03
(1976). Among the guarantees associated with Eighth Amendment
protection is the right to “humane conditions of
confinement.” Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (quoting
Farmer, 511 U.S. at 832).
prevail on a constitutional claim of sexual harassment, an
inmate must . . . prove, as an objective matter that the
alleged abuse or harassment caused ‘pain' and, as a
subjective matter, that the officer in question acted with a
sufficiently culpable state of mind.” Freitas v.
Vault, 109 F.3d 1335, 1338 (8th Cir. 1997). Although
sexual abuse of a prisoner by a correctional officer serves
no legitimate penological purpose, courts of appeals have
held that sexual harassment in the absence of contact or
touching does not establish an Eighth Amendment violation.
See, e.g., Schwenk v. Hartford, 204 F.3d 1187, 1197
(9th Cir. 2000). Verbal harassment, including lewd comments,
sexual propositioning, and the like, is not sufficient to
satisfy the objective element of an Eighth Amendment sexual
harassment claim. Manon v. Garrison, 2012 WL 3542328
(M.D. Pa. Aug. 15, 2012). Rather, physical sexual assault or
threats of physical assault is required for the objective
element to be met. Chambliss v. Jones, 2015 WL
328064 (M.D. Pa. Jan. 26, 2015). Here, Plaintiff alleges much
more than mere verbal harassment. He alleges that throughout
the month of June 2016, Defendant Barner repeatedly touched
him in “a sexually suggestive manner” during pat
searches and that on July 6, 2016, Defendant Barner
“poked [him] in [his] buttocks with his pen as he was
sitting at his desk.” Complaint, at ¶ IV(C).
Court finds that Plaintiff has alleged enough to create a
plausible Eighth Amendment claim. The Court recognizes that
discovery may well reveal that the alleged conduct does not
give rise to an Eighth Amendment claim, but at this early
stage of the litigation, the allegations of the Complaint