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Ricks v. Shover

United States Court of Appeals, Third Circuit

June 5, 2018

MR. GREGORY L. RICKS, Appellant
v.
LIEUTENANT D. SHOVER; C/O KILE

          Argued on February 8, 2018

          On Appeal from the District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-15-cv-03618) District Judge: Honorable Wendy Beetlestone

          James A. Kraehenbuehl [Argued] Boies Schiller Flexner Counsel for Appellant

          Josh Shapiro Attorney General Claudia M. Tesoro [Argued] Senior Deputy Attorney General John G. Knorr, III Chief Deputy Attorney General, Chief, Appellate Litigation Section Counsel for Appellee.

          Before: CHAGARES, SCIRICA, and RENDELL, Circuit Judges

          OPINION

          RENDELL, Circuit Judge

         In this § 1983 case, Plaintiff-Appellant Gregory Ricks, a former inmate at Pennsylvania State Corrections facility SCI-Graterford, appeals the dismissal of his complaint alleging sexual abuse and excessive force in violation of the Eighth Amendment. His two claims arise from an alleged incident where, during a routine morning pat-down, Corrections Officer Keil rubbed his erect penis against Ricks' buttocks through both men's clothing. When Ricks stepped away and verbally protested to Keil's supervisor, Lieutenant Shover, Ricks alleges that Shover "slammed" Ricks against the wall, causing injuries to his face, head, neck, and back. A. 15.

         Ricks proceeded pro se, and before the merits of his claims could be tested, the District Court granted a motion to dismiss for failure to state a claim, with leave to amend. Ricks did not amend his complaint, and the District Court then dismissed his complaint with prejudice. In so doing, the District Court cited our Circuit's non-precedential opinion, Obiegbu v. Werlinger, where we indicated that "a small number of incidents in which a prisoner is verbally harassed, touched, and pressed against without his consent do not amount" to an Eighth Amendment violation. 581 Fed.Appx. 119, 121 (3d Cir. 2014).

         Whether sexual abuse can constitute "cruel and unusual punishment" under the Eighth Amendment is a matter of first impression in our Court. We write today to state in plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact.

         We will give Ricks another chance to cure his complaint as it relates to the Eighth Amendment sexual abuse claim against Keil, with a view to the applicable law as discussed herein. Although his sexual abuse claim as to Shover under a participation or failure-to-intervene theory was properly dismissed, Ricks' excessive force claim stands on a different footing and should have been permitted to survive the motion to dismiss. We will therefore affirm in part, vacate in part, and reverse in part the District Court's order, and remand for further proceedings consistent with this opinion.

         I. BACKGROUND

         A. Facts

         In reviewing the District Court's dismissal order, we accept as true the following facts, set forth in Ricks' complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). On the morning of September 17, 2014, Ricks, an inmate at SCI-Graterford, [1] was on his way to the law library during morning line movements when Corrections Officer Keil[2] directed him to undergo a pat-down search in a public hallway. Ricks complied and submitted to the search, which he alleges was captured by video camera.

         While being searched from behind, Ricks felt Keil's erect penis (under clothing) "rubbing up against" Ricks' clothed buttocks. A. 15. Ricks stepped away from Keil and told him he was "on [his] (ASS)." Id. Ricks told Lt. Shover, who was overseeing the line movement, that Keil "is [r]ubbing [u]p against my [b]ehind with his genitals." Id.

         Shover asked Ricks "what [d]id you say." Id. Ricks explained, and Shover "came over to [him] and just slammed [him] in the . . . wall." Id. This action gave Ricks a black eye, a "[b]usted" nose and lip, and injuries to his head, neck, and back.[3] Id. Shover then told Ricks to place his hands behind his back so he could be cuffed and returned to his cell. Ricks complied. On the way to Ricks' cell, Shover directed several racial slurs at him. Ricks also alleges that in the past, Shover had continuously harassed him, and that he had reported this conduct to other prison officials.

         B. Procedural History

         After exhausting administrative remedies, Ricks filed a complaint in the United States Court for the Eastern District of Pennsylvania against Officer Keil and Lt. Shover. He sought monetary and injunctive relief for racial discrimination, harassment, sexual abuse, and the use of excessive force.[4] Proceeding pro se, his standard § 1983 Prisoner Complaint form briefly set out the above facts. Defendants filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss.

         The District Court granted the motion, holding that Ricks failed to allege a violation of his Eighth Amendment rights. The District Court dismissed Ricks' sexual abuse cause of action, citing our non-precedential opinion in Obiegbu v. Werlinger, 581 Fed.Appx. 119, 121 (3d Cir. 2014), in which we stated that "a small number of incidents in which a prisoner is verbally harassed, touched, and pressed against without his consent do not amount" to an Eighth Amendment violation. The Court then referred to the five-factor test for excessive force set out in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), and dismissed Ricks' excessive force claim as well.

         The Court dismissed Ricks' case without prejudice, granting him leave to amend his complaint. The Court instructed Ricks to describe "(a) the specific statutory basis for federal jurisdiction over this case; (b) the specific events which serve as the basis for his claim; (c) how the defendant is involved in his claims; and (d) the harm he suffered, if any, from each violation." A. 2. Ricks did not file an amended complaint within the allotted time frame, and so the District Court converted its dismissal to one with prejudice. This appeal followed.[5]

         II. DISCUSSION

         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343. We have jurisdiction under 28 U.S.C. § 1291, as the District Court's dismissal with prejudice was a final order. We exercise plenary review over the dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242, 248 (3d Cir. 2016). We accept all factual allegations in the complaint as true, and affirm the dismissal only if the well-pleaded facts, accepted as true, do not plausibly provide a basis for relief. Twombly, 550 U.S. at 570. When a plaintiff files pro se, we have "a special obligation to construe his complaint liberally." Zilich v. Lucht, 981 F.2d 694, 694 (3d Cir. 1992).

         The Eighth Amendment guarantees the right to be free from "cruel and unusual punishments" while in custody. Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting U.S. Const. amend. VIII). A properly stated Eighth Amendment claim must allege a subjective and objective element. Hudson v. McMillian, 503 U.S. 1, 8 (1992). First, it must appear from the complaint that the defendant official acted with a "sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, the conduct must have ...


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