MR. GREGORY L. RICKS, Appellant
LIEUTENANT D. SHOVER; C/O KILE
on February 8, 2018
Appeal from the District Court for the Eastern District of
Pennsylvania (E.D. Pa. No. 2-15-cv-03618) District Judge:
Honorable Wendy Beetlestone
A. Kraehenbuehl [Argued] Boies Schiller Flexner Counsel for
Shapiro Attorney General Claudia M. Tesoro [Argued] Senior
Deputy Attorney General John G. Knorr, III Chief Deputy
Attorney General, Chief, Appellate Litigation Section Counsel
Before: CHAGARES, SCIRICA, and RENDELL, Circuit Judges
RENDELL, Circuit Judge
§ 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.
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District Court cited our Circuit's non-precedential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).
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
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.
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,  was on his way to the law library
during morning line movements when Corrections Officer
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.
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.
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. 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
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. 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
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.
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.
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).
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 ...