Drumgo v. Kuschel et al
Filing
145
MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 3/25/2019. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DESHAWN DRUMGO,
Plaintiff,
V.
SGT. WILLIAM KUSCHEL,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 14-1135-CFC
DeShawn Drumgo, SCI Frackville, Frackville, Pennsylvania. Pro Se Plaintiff.
Stuart B. Drowos, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant.
MEMORANDUM OPINION
March 25:"2019
Wilmington, Delaware
C O ~ L ( u ~ c t Judge
I.
INTRODUCTION
Plaintiff DeShawn Drumgo ("Plaintiff"), a former inmate at the James T. Vaughn
Correctional Center ("VCC") in Smyrna, Delaware, currently housed at SCI Frackville,
Frackville, Pennsylvania, filed this lawsuit pursuant to 42 U.S.C. § 1983. 1 (D.I. 3)
Defendant Sgt. William Kuschel ("Defendant") moves for summary judgment. 2 (D.I. 96)
Plaintiff opposes the motion. Also before the Court is Defendant's motion to
supplement/correct the record 3 and Plaintiff's request for counsel. (D.I. 132, 143)
II.
BACKGROUND
The verified Complaint4 alleges sexual harassment/assault occurred on May 29,
2014. (D.l. 3 at 4-5) Plaintiff was walking out of MHU 24-8 chow hall, and C/O
1
When bringing a § 1983 claim, a plaintiff "must allege the violation of a right secured
by the Constitution and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of state law." West v. Atkins,
487 U.S. 42, 48 (1988).
2
All other defendants have either been dismissed or granted summary judgment. (See
D.l. 10, 60)
3
Defendant filed the motion in response to an inmate affidavit submitted by Plaintiff
Defendant contends the affidavit "is a fiction at best and a total lie at worst." (D.I. 132 at
6) The Court will grant the motion but notes that while the Court "requires more than
conclusory affidavits to create a genuine issue of material fact, MD Mall Assocs., LLC v.
CSX Transp., Inc., 715 F.3d 479, 485 n.6 (3d Cir. 2013), when deciding a motion for
summary judgment, 'the evidence of the non-movant is to be believed,' and credibility
determinations must be left to the jury." Pearson v. Prison Health Serv., 850 F.3d 526
n.5 (3d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
4
When the Complaint is verified, the Court treats specific, factual allegations in the
Complaint that are based on personal knowledge as if they were made in an affidavit or
declaration. See Parke/Iv. Danberg, 833 F.3d 313, 320 n.2 (3d Cir. 2016) ("Because
[statements in verified complaint and other court filings] were signed under penalty of
perjury in accordance with 28 U.S.C. § 1746, we consider them as equivalent to
1
VanGorder ("VanGorder") pointed him towards Defendant who was wearing a black
leather glove. (D.I. 3 at 4-5; D.I. 46-1 at 20) According to VanGorder, Plaintiff was
directed to Defendant because he was the next available officer to conduct a frisk
search as Plaintiff exited the chow hall. (D.I. 46-1 at 8-9) Plaintiff states that before the
frisk started Defendant told Plaintiff "not to say anything because no one was going to
help [him]". (D.I. 40 at 17) Plaintiff states that Defendant "repeatedly and slowly in
attempts to seduce [Plaintiff] ... groped [Plaintiff's] legs three different times until he
reached [Plaintiff's] penis. (/d.) Plaintiff states that after he told Defendant he would let
one of the other officers "strip search him versus [allowing Defendant] to sexually
assault[]" him, Defendant "went on up [Plaintiff's] penis stroking it, jacking it, and
yanking it in a masterbative or what he thought to be a seductive manner." (/d.) Plaintiff
states that Defendant continued to grip his penis and squeezed it intentionally in such a
manner that Plaintiff could feel the cracking and burning of the skin and this resulted in
rupturing the skin of the penis. (D.I. 3 at 5-6) During this time Plaintiff shouted, "let go
of my dick." (Id. at 5) Plaintiff alleges that VanGorder, C/O Hutchins ("Hutchins"), C/O
Ingram ("Ingram"), and C/O Abernathy ("Abernathy") were present during the incident.
(D.I. 3 at 5)
statements in an affidavit."); Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating
verified complaint as an affidavit in opposition to a motion for summary judgment);
Boomer v. Lewis, 2009 WL 2900778, at *14 (M.D. Pa. Sept. 9, 2009) ("A verified
complaint may be treated as an affidavit in support of or in opposition to a motion for
summary judgment if the allegations are specific and based on personal knowledge."),
affd, 541 F. App'x 186, 193 (3d Cir. 2013). Plaintiff's affidavit contains many of the
same factual allegations as those in the verified Complaint. (See D.I. 40 at 17-20)
2
Defendant uses leather gloves when he conducts frisk searches for safety
reasons. (D.I. 97-1 at ,r 12) He denies that he sexually assaulted Plaintiff or that he
grabbed, squeezed, or held onto Plaintiff's penis when he frisked Plaintiff. (Id. at ,r,r 6,
8) Defendant has no recollection of Plaintiff yelling or calling for staff members to
provide Plaintiff assistance or to provide Plaintiff protection when he frisk searched
Plaintiff on May 29, 2014. (Id. at ,r 11) VanGorder, Hutchins, Ingram, and Abernathy
deny that Plaintiff called for help from the other staff members. (D.I. 46-1 at 9, 11, 14,
17) Defendant states that he frisk-searched several inmates on the same date and in
the same manner as he used with Plaintiff and no other inmate complained about the
search or said he sexually assaulted them. (D.I. 97-1
ff 6)
The affidavit of inmate Isaiah J. Walker ("Walker") states that on the day in
question he saw Defendant clutching Plaintiff's groin area and heard Plaintiff yell, "let go
of my dick." (Id. at 19) The affidavit of inmate Curtis Mercer ("Mercer'') states that on
the day in question he saw Defendant search Plaintiff in a "different manner by going up
and down [Plaintiff's] leg, lingering around where one's private area is located" and "had
what looked like a handful of Plaintiff's genitals" which made Plaintiff holler, "let go of my
dick." (Id. at 20) The affidavit of inmate Alex Lopez ("Lopez") states that he was frisked
by Defendant in a similar manner on the same day and that he also heard Plaintiff yell.
(0.1. 124)
Plaintiff alleges this is the second time Defendant has sexually assaulted him.
(0.1. 3 at 5; 0.1. 98 at 2) Plaintiff does not indicate when the first incident occurred, but
3
states he submitted a grievance after Defendant caressed his nipples and buttocks. 5
(D.I. 40 at 18) Defendant denies that Plaintiff made a prior complaint or submitted a
grievance complaining of his frisk search procedure. (D.1. 97-1 at ,r 7) Defendant
states that Plaintiff's complaint is the only time he has been accused by anyone of
improperly performing a frisk search or deviating from the normal manner of performing
a search. (Id. at ,r 5) In addition, Defendant denies that he was called to the offices of
Wallace or Lt. Schaffer to discuss complaints by inmates as to the manner in which he
conducts a frisk search. (Id. at ,r 8) Defendant states that he has never been
disciplined in any manner either in reference to such complaints or other alleged
misconduct or unprofessional behavior or performance of his duties. (Id.)
Defendant's responsibilities include security checks and inspections, primarily as
frisk searches on all personnel entering the facility. (Id. at 1I 3) The security check frisk
searches are performed using the same procedure Defendant was trained to employ at
the Delaware Department of Correction academy. (Id. at ,i 4) Defendant also employs
the same procedure for inmate searches within the facility. (Id.) The purpose of
searching inmates as they leave the chow hall and observing and supervising inmates
in the chow hall is to ensure that no institutional rules are violated, to prevent
contraband from being passed from one inmate to another, and to maintain the security
and safety of the chow hall for the sake of staff and inmates alike. (Id. at ,r 11) The
procedure Defendant was trained in is designed to quickly, efficiently, and effectively
detect and intercept contraband. (Id.)
5
Neither party produced a copy of this grievance.
4
According to Plaintiff, following the incident, he spoke to VanGorder, who told
him that she and the staff were aware of Defendant's illicit "sexual searches." (D.I. 3 at
6) VanGorder denies this allegation. (D.I. 46-1 at 8) Hutchins and Abernathy also
deny Plaintiff's allegations that they had knowledge that Defendant tended to commit
unlawful acts while conducting searches. (D.I. 46-1 at 11, 17) Plaintiff alleges that he
spoke to Ingram who told him that Lt. Wallace ("Wallace") had warned Defendant about
his inappropriate conduct. (D.I. 3 at 6) Ingram denies this allegation. (D.I. 46-1 at 1415) In addition, Plaintiff alleges he spoke to the C/O Levin ("Levin") who referred to
Defendant's conduct as "illicit sexual searches." (D.I. 3 at 6)
Plaintiff approached Wallace, who was with Defendant, and reported to him that
he was sexually assaulted. (0.1. 3 at 6) Stanley Baynard ("Baynard") an internal affairs
investigator at the VCC, was assigned to conduct a Prison Rape Elimination Act
investigation of Plaintiff's complaint against Defendant. (D. I. 46-1 at 20) Baynard
concluded that there was no credible evidence to substantiate the claim and
recommended closure of the matter without the need for further action against
Defendant. (Id. at 21)
During his deposition, Plaintiff testified that the incident resulted in flashbacks,
nightmares, and an actual injury of broken skin for which he received Bactrocin
ointment. (D.I. 51 at 71, 73) He states that he submitted a sick call slip for the injury to
his penis. (D.I. 3 at 6) A sick call request dated May 29, 2014, the day of the
occurrence, requested a new pair of eyeglasses, and did not mention the May 29, 2014
occurrence or an injury. (D.I. 118 at 71) A sick call slip dated June 1, 2014, sought a
5
refill of nasal spray and a chronic care appointment for Plaintiff's allergies and asthma,
and did not mention the May 29, 2014 occurrence or an injury. (Id. at 72) A June 10,
2014 sick call slip asked for medication and again requested a chronic care provider
visit. (Id. at 70) It did not mention the May 29, 2014 occurrence or an injury. (Id.) A
September 3, 2014 medical record states that Plaintiff "reported an officer groped his
penis when he was in Building 23, denies any injuries at this time." (D.I. 98 at 11)
During his deposition, Plaintiff testified that "that's not true" that medical personnel had
seen the injury as minor, because Plaintiff was given ointment. 6 (D.I. 51 at 73)
Plaintiff states that he submitted sick call slips for nightmares and sleeplessness
that resulted from the incident. (D.I. 3 at 6; D.I. 98 at 3) Plaintiff was seen by mental
health personnel on July 1, 2014 following a sick call request submitted the same day
concerning the protocol for treating his complaints of nightmares following the alleged
sexual assault. (D. I. 131 at 13) Plaintiff submitted a grievance concerning treatment
and, on October 10, 2014, it was noted that Plaintiff received monthly mental health
visits and that Plaintiff participates in mental health group sessions. (Id. at 18) On the
same date, the treatment plan was for Plaintiff to "engage with mental health clinicians
to address distress and symptoms related to the incident." (Id.)
Marc Richman ("Richman"), Bureau Chief for the Bureau of Correctional Health
Care Services, reviewed Plaintiff's mental healthcare file and observed that it does not
6
From the excerpts of Plaintiff's deposition it may be inferred that Plaintiff may have
been seen by medical shortly after the May 29, 2014 incident and may have been given
Bactrocin for his alleged injury, but the record does not contain medical records of the
visit or of any treatment provided. (D.I. 51 at 73, 75)
6
indicate a diagnosis of post-traumatic stress disorder. (D.I. 97-1 at 16-17, 19-21) Nor
does it indicate that Plaintiff take medication for any mental health issues, although he
partakes in "talk therapy." (Id. at 17, 20) Richman opined that Plaintiff's current
psychological condition is essentially no different than his condition in March 2016, that
Plaintiff's condition is much improved, and that any allegations to the contrary are not
reflected in relevant medical or mental health records. (Id. at 18)
Defendant is sued in his individual and official capacity. (D.I. 3 at ,r VII) Plaintiff
seeks compensatory and punitive damages as well as injunctive relief in the form of a
transfer to a different prison facility.
Ill.
LEGAL STANDARDS
Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." The moving
party bears the burden of demonstrating the absence of a genuine issue of material
fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86
(1986). An assertion that a fact cannot be -- or, or alternatively, is -- genuinely disputed
must be supported either by "citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials," or by "showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact." Fed. R. Civ. P.
7
56(c)(1 )(A) & (8). If the moving party has carried its burden, the nonmovant must then
"come forward with specific facts showing that there is a genuine issue for trial."
Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).
To defeat a motion for summary judgment, the nonmoving party must "do more
than simply show that there is some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005) (stating party opposing summary judgment "must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue") (internal quotation marks omitted). The "mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment;" a factual dispute is genuine only where "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted." Id. at
249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (stating entry of summary judgment is mandated "against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial"). Thus, the
"mere existence of a scintilla of evidence" in support of the nonmoving party's position is
8
insufficient to defeat a motion for summary judgment; there must be "evidence on which
the jury could reasonably find" for the nonmoving party. Anderson, 477 U.S. at 252.
IV.
DISCUSSION
Defendant moves for summary judgment on the grounds that: (1) the claim is
barred by Eleventh Amendment immunity and sovereign immunity; (2) Defendant is
entitled to qualified immunity; (3) the claim is barred by the Delaware Tort Claims Act,
10 Del. C. § 4001, et seq.; and (4) the Complaint fails to establish a claim upon which
relief may be granted under Fed. R. Civ. P. 12(b)(6). Plaintiff responds that summary
judgment is not appropriate because there remain genuine issues of material fact in
dispute.
A.
Eleventh Amendment
Defendant seeks summary judgment on the claims raised against him in his
official capacity based upon Eleventh Amendment immunity. The Eleventh Amendment
of the United States Constitution protects an unconsenting state or state agency from a
suit brought in federal court by one of its own citizens, regardless of the relief sought.
See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974). "[A]
suit against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official's office. As such, it is no different from a suit
against the State itself," and Defendant is afforded immunity under the Eleventh
Amendment. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (internal
citations omitted).
9
The Eleventh Amendment permits suits for prospective injunctive relief against
state officials acting in violation of federal law. See Ex parte Young, 209 U.S. 123
(1908). "This standard allows courts to order prospective relief, as well as measures
ancillary to appropriate prospective relief." Frew v. Hawkins, 540 U.S. 431, 437 (2004)
(internal citations omitted). Plaintiff seeks injunctive relief in the form of a transfer to a
different prison. Given that Plaintiff is no longer housed at the VCC, his request for a
transfer is moot.
Accordingly, the Court will grant Defendant's motion for summary judgment
based upon his immunity from suit under the Eleventh Amendment on the claims raised
against him in his official capacity.
B.
Sexual Abuse and Qualified Immunity
Last year, the United States Court of Appeals for the Third Circuit joined several
other circuits to hold that sexual abuse of prisoners by prison officials can violate the
Eighth Amendment. Ricks v. Shover, 891 F.3d 468,473 (3d Cir. 2018). The Third
Circuit stated that the "sexual abuse of prisoners, once overlooked as a distasteful blight
on the prison system, offends our most basic principles of just punishment", and
"invades the most basic of dignity interests: to be treated as a human being", and is "not
part of the penalty that criminal offenders pay for the offenses against society." Id. at
473,474 (quoting Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997)).
The Court clarified that "a single incident, if sufficiently serious or severe, can run
afoul of the Eighth Amendment as surely as can multiple, less egregious incidents."
Ricks, 891 F.3d at 477. The Court declined to adopt a bright-line rule as to when sexual
10
contact will violate the Eighth Amendment and instructed district courts to conduct a
11
"contextual, fact-specific inquiry, which considers "[t]he scope, place, and timing of the
offensive conduct." Id. at 478. "[O]bjectively serious sexual contact would include
sexualized fondling, coerced sexual activity, combinations of ongoing harassment and
abuse, and exchanges of sexual activity for special treatment or to avoid discipline" and,
in context, other sexualized touching may be objectively serious if it violates established
prison procedures. Id. In addition, it may be appropriate to inquire whether there was a
legitimate penological purpose for the search. Id. at 477.
The framework for analyzing whether there has been a violation of the Eighth
Amendment when a prisoner alleges sexual abuse by a corrections officer is comprised
of a two-part analysis that consists of an objective component and a subjective
component. The objective component is satisfied only if the incident in question is
"objectively, sufficiently intolerable and cruel, capable of causing harm .... " Id. at 475.
Not "every malevolent touch by a prison guard gives rise to a federal cause of action.
11
Hudson v. McMillian, 503 U.S. 1, 9, (1992). "[T]he Eighth Amendment shields inmates
from only those actions 'repugnant to the conscience of mankind"'. Ricks, 891 F.3d at
475-76 (quoting Hudson, 503 U.S. at 10). "The objective element 'is therefore
contextual and responsive to 'contemporary standards of decency
111
•
Ricks, 891 F.3d at
476 (citations omitted). "And 'conditions that cannot be said to be cruel and unusual
under contemporary standards are not unconstitutional"'. Id. (citing Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)).
11
The subjective element inquires "whether the official had a legitimate penological
purpose or if he or she acted 'maliciously and sadistically for the very purpose of
causing harm"'. Id. (quoting Whitley
v. Albers, 475 U.S. 312,
319-20 (1986)). "Because
this is a mental state, 'unless admitted, [it) has to be inferred rather than observed' from
conduct such as harassing comments, or an overly invasive search in violation of facility
policy." Ricks, 891 F.3d at 475 (citations omitted). "The nature of the violative conduct
itself will often be enough to demonstrate the prison official's culpable state of mind." Id.
(citation omitted).
Defendant moves for summary judgment under the doctrine of qualified
immunity. 7 Defendant contends that: (1) the record and evidenced adduced by Plaintiff
fail to support his claim and do not refute the applicability of the qualified immunity
doctrine afforded him; (2) there is no credible evidence that establishes the pat and frisk
search was conducted in a wrongful manner or that it violated Plaintiff's Eighth
Amendment right against cruel and unusual punishment; and (3) the record does not
reflect any harm that actually occurred to Plaintiff as a result of the May 29, 2014
incident.
"Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was 'clearly established' at the time of the
7
Defendant states that Plaintiff never indicated whether this matter was raised against
him in his individual capacity. To the contrary, Paragraph VII. Relief states, "seeking to
sue each officer in their individual capacity and official capacity for $1,000,000 each."
(D.I. 3)
12
challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal citations
omitted); see also Saucier v. Katz, 533 U.S. 194 (2001 ). The District Court is "permitted
to exercise [its] sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). The doctrine
"gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate
the law." Messerschmidt v. Millender, 565 U.S. 535, 546 (2012).
Although the question of qualified immunity is generally a question of law, "a
genuine issue of material fact will preclude summary judgment on qualified immunity."
Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009); see also Curley v. Klem, 298 F.3d
271, 278 (3d Cir. 2002) (noting that "a decision on qualified immunity will be premature
when there are unresolved disputes of historical fact relevant to the immunity
analysis."). The Court must deny summary judgment if, on Plaintiff's version of the
facts, Defendant violated Plaintiff's clearly established constitutional rights. See Giles,
571 F.3d at 327 (finding that district court was wrong to dismiss Eighth Amendment
claims on qualified immunity grounds because there was a factual dispute as to whether
plaintiff had ceased resisting when he was kicked by officers, and that the court "must
accept [the plaintiff's] version of the facts.").
Plaintiff alleges two instances of sexual harassment. The first, described as
Defendant caressing Plaintiff's nipples and buttocks; and the second that occurred on
May 29, 2014 and that forms the basis of this action. Even construing the facts in the
13
light most favorable to Plaintiff, the acts complained of do not rise to the level of an
Eighth Amendment violation. Plaintiff alleges two discrete incident of conduct which,
taken as true are unseemly, but do not involve harm of federal constitutional
proportions. See e.g., Boddie, 105 F.3d at 861 ("isolated episodes of harassment and
touching ... are despicable and, if true they may potentially be the basis of state tort
actions. But they do not involve a harm of federal constitutional proportions as defined
by the Supreme Court.").
There is no record evidence regarding the alleged first incident and Plaintiff's
description of it is simply lacking in detail. Regarding the May 29, 2014 incident, the
evidence indicates that the search was conducted pursuant to a legitimate penological
purpose of observing and supervising inmates in the chow hall to insure that no
institutional rules are violated, no contraband is passed from one inmate to another, and
to maintain the security and safety of the chow hall for the sake of staff and inmates
alike. The evidence indicates that Defendant used a leather glove during the search for
safety reasons and there is no evidence he touched Plaintiff's bare skin. In addition, the
record reflects the frisk was conducted during a routine frisk search of inmates leaving
the chow hall, and it was conducted in the presence of inmates and other correctional
officers. There is no evidence that the frisk took an unduly length of time. Even if
Defendant exceeded the scope of an ordinary frisk search, the evidence does not
support a finding that he did so to arouse or gratify himself. Finally, the evidence of
record does not support Plaintiff's claims of injury. Plaintiff states that Defendant injured
his penis and he received medical attention for the injury, but there are no medical
14
records to support this. Plaintiff also claims mental distress, but the medical records do
not demonstrate severe or lasting psychological harm.
Having considered the record, pertinent case law, and "the scope, place, and
timing of the offensive conduct," Ricks, 891 F.3d at 478, the Court concludes that
Defendant's actions do not rise to the level of a constitutional violation. Defendant's
alleged behavior, while certainly unseemly and unprofessional, was far less egregious
than the allegations addressed in many cases in which the actions of prison officials
were far more offensive and were found to be insufficient to support a cognizable Eighth
Amendment claim. See, e.g., McIntyre v. Ke/linger, 741 F. App'x 891 (3d Cir. 2018)
(holding that incident in which defendant dragged his hands down plaintiff's buttocks,
gripped his buttocks, patted his thighs, and "squeezed [his Jass as if [he] was a woman"
while whispering "in a sexual manner" during a pat-search was not objectively severe or
serious to establish an Eighth Amendment violation); Ricks, 891 F.3d at 479
(suggesting that an "isolated, momentary" incident in which guard "rubbed his erect
penis against [plaintiff's] buttocks through both men's clothing" was not sufficiently
severe, but allowing an opportunity to amend); Hughes v. Smith, 237 F. App'x 756, 759
(3d Cir. 2007) (no Eighth Amendment violation where correctional officer allegedly
touched the inmate's testicles through his clothing during a single pat-down frisk);
Armstrong v. Diraimo, 2018 WL 6788524
0/'J.D.
Pa. Dec. 26, 2018) (no Eighth
Amendment violation where correctional officer placed his hands inside of plaintiff's
boxer shorts, stroked his penis once, and grabbed his scrotum during a random pat
search.); Watson v. Wingard, 2018 WL 2108316 (W.D. Pa. Jan. 31, 2018) (allegations
15
that defendant gave plaintiff an "upper cut" to the groin with his forearm, "groped and
massaged [his] penis," and examined plaintiff's "butt ... like a doctor" did not amount to
sexual abuse), report and recommendation adopted by 2018 WL 2107773 (W.D. Pa.
May 7, 2018).
Nor does Defendant's conduct fall within the examples of misconduct identified in
Ricks. See Ricks, 891 F.3d at 478 (defining serious sexual contact to include
"sexualized fondling, coerced sexual activity, combinations of going harassment and
abuse, and exchanges of sexual activity for special treatment or to avoid discipline.").
Id. Defendant's alleged inappropriate behavior does not in any way trivialize the
mistreatment Plaintiff alleges he experienced, but the behavior does not amount to a
cognizable constitutional violation.
Accordingly, the Court finds that Plaintiff has failed to establish that he
experienced conduct that was "repugnant to the conscience of mankind" or that the
alleged violation took place under circumstances that suggest a "culpable state of
mind." Ricks, at 475. Because Plaintiff cannot satisfy either element of his Eighth
Amendment claim and there is no underlying unconstitutional conduct, Defendant is
entitled to qualified immunity. Therefore, Defendant's motion for summary judgment will
be granted.
C.
Supplemental State Claims
Summary judgment is appropriate as to Plaintiff's federal claim. Therefore, the
Court declines to exercise supplemental jurisdiction to the extent Plaintiff raises a state
law claim for sexual assault. See 28 U.S.C. § 1367(c). Because the Court declines to
16
exercise supplemental jurisdiction over any possible state claims, it will not address
Defendant's grounds for summary judgment based upon sovereign immunity and
Delaware's State Tort Claims Act, 10 Del. C. § 4001.
V.
CONCLUSION
For the above reasons, the Court will: (1) grant Defendants' motion for summary
judgment (D.I. 96); 8 (2) grant Defendant's motion to supplement/correct record (D.I.
132); (3) deny as moot Plaintiff's request for counsel (D.I. 143); and (4) decline to
exercise supplemental jurisdiction.
An appropriate Order follows.
8
The Court will not address the Rule 12(b)(6) issue raised by Defendant, as summary
judgment is appropriate on other grounds.
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?