MYER v. THOMPSON
Filing
19
MEMORANDUM OPINION; Defendant's motion to dismiss 15 will be granted.An appropriate Order will issue. Signed by Magistrate Judge Susan Paradise Baxter on 12/19/16. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROBERT MYER,
Plaintiff
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vs.
COi G.A. THOMPSON, et al,
Defendants.
C.A.No. 15-227ERIE
Magistrate Judge Baxter
MEMORANDUM OPINION 1
United States Magistrate Judge Susan Paradise Baxter
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INTRODUCTION
A. Relevant Procedural History
Plaintiff, a state inmate incarcerated at SCI Albion and acting pro se, initiated this civil
rights action on September 17, 2015. The only Defendant named in this action is Corrections
Officer G.A. Thompson.
Plaintiff alleges that on June 15, 2015:
At about 1:25 in the afternoon, [Thompson] handcuffed me behind my back when
removing me from the shower to escort me back to my assigned cell[ ... ] When
Thompson placed the cuffs on me, he pressed his knuckles hard up against my left
butt cheek. Since the sexual assault, I been seeking medical care for my
psychological and emotional trouble.
ECF No. 5, pages 2-3. As relief, Plaintiff seeks a "separation transfer" from Defendant, as well
as monetary damages. Id. at page 5.
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In accordance with the provisions of28 U.S.C. § 636(c)(l), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment.
Defendant has filed a motion to dismiss. ECF No. 15. Despite being given the
opportunity to do so, Plaintiff has failed to file a brief in opposition to the pending dispositive
motion.
B. Standards of Review
1) Prose Litigants
Prose pleadings, "however inartfully pleaded," must be held to "less stringent standards
than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If
the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,
it should do so despite failure to cite proper legal authority, confusion of legal theories, poor
syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141F.2d552,
555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read
"with a measure of tolerance"); Freeman v. Dep't of Corr., 949 F.2d 360 (10th Cir. 1991). Under
our liberal pleading rules, a district court should construe all allegations in a complaint in favor
of the complainant. Gibbs v. Roman, 116 F .3d 83 (3d Cir.1997). See, e.g., Nami v. Fauver, 82
F.3d 63, 65 (3d Cir. 1996); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)).
Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it
is appropriate.
2) Motion to dismiss pursuant to Rule 12(b)(6)
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b) (6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
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complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b) (6) if it does not allege "enough facts to state a claim
to relief that is plausible on its face." Twombly, 550 U.S. at 570. See also Ashcroft v. Iqbal, 556
U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman
Act).
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions."). A plaintiff's factual allegations "must be enough to raise a right to relief above
the speculative level." Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme
Court does "not require heightened fact pleading of specifics, [the Court does require] enough
facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing'
rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469,
at* 1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "This
'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of' the
necessary element." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
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The Third Circuit has expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we must take
the following three steps:
First, the court must 'tak[ e] note of the elements a plaintiff must plead to state a
claim.' Second, the court should identify allegations that, 'because they are no more
than conclusions, are not entitled to the assumption of truth.' Finally, 'where there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.'
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
C. Failure to State a Claim
Defendant moves to dismiss based on Plaintiffs failure to state an Eighth Amendment
claim upon which relief may be granted.
Under 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., 621F.3d249, 256 (3d Cir.
20 I 0) quoting Farmer, 511 U.S. at 832.
The analysis of an Eighth Amendment claim follows the principals of deliberate
indifference articulated in Farmer, 511 U.S. 825. A punishment is cruel and unusual under the
Eighth Amendment when it inflicts unnecessary and wanton pain, including those that are totally
lacking in penologicaljustification, Rhodes v. Chapman, 452 U.S. 337, 346 (1981), and those
which evince "calculated harassment unrelated to prison needs.'' Hudson v. Palmer, 468 U.S.
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517, 530 ( 1984). To be actionable, the "punishment" must be "objectively, sufficiently serious,"
and the official must have acted with a ''sufficiently culpable state of mind.'" Farmer, 511 U.S. at
834.
Sexual abuse of a prisoner by a corrections officer may in some circumstances violate the
prisoner's right to be free from cruel and unusual punishment under the Eighth Amendment.
Boddie v. Schnieder. 105 F.3d 857, 860-61 (2d Cir. 1997). See also Jones v. Culinary Manager
li, 30 F.Supp.2d 491, 497 (E.D. Pa. 1998) ("Sexual harassment of a prisoner by a prison official
or guard can rise to the level of an Eighth Amendment violation."). "Rape, coerced sodomy,
unsolicited touching of women prisoners' vaginas, breasts and buttocks by prison employees are
simply not part of the penalty that criminal offenders pay for their offenses against society."
Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir.2000) (citations omitted). Uninvited sexual
contact that is done maliciously and sadistically to cause harm and that does not advance any
legitimate penological interest is the type of conduct that is "inconsistent with contemporary
standards of decency" and that is ''repugnant to the conscience of mankind.'" and thus violates the
Eighth Amendment. Id. at 1196-97.
However, "not every malevolent touch by a prison guard gives rise to a federal cause of
action:' Hudson, 503 U.S. at 9. In this regard, Chief Judge Conti's opinion in Banks v. Rozum is
instructional. 2015 WL 1186224 (W .0. Pa. Mar.13, 2015). In Banks, the court dismissed an
Eighth Amendment claim brought by a state prisoner who alleged that a prison guard groped his
genitals, made sexually offensive comments, and threatened to sabotage his general population
status. The Banks court noted that other courts have held that "isolated incidents of inappropriate
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conduct" do not rise to the level of a constitutional violation. Id. at *14. 2 In so ruling, the court
stressed that:
[O]nly severe or repetitive sexual abuse has been found to rise to the level of an
Eighth Amendment violation.
See,~'
Schwenk v. Hartford, 204 F.3d 1187 (9th
Cir.1999) (repeated requests for oral sex and attempted rape of inmate by prison
guard may establish Eighth Amendment claim); United States v. Walsh, 194 F.3d
37 (2d Cir.1999) (corrections officer who repeatedly steps on inmate's penis to
wantonly inflict pain violates inmate's right to be free of cruel and unusual
punishment); Berry v. Oswalt, 143 F.3d 1127 (8th Cir.1998) (rape and harassment
of inmate, including propositions, sexual comments, and attempts to perform nonroutine pat-down violated inmate's Eighth Amendment right to be free from cruel
and unusual punishment).
Id. at* 14.
2
The Banks court cited the following cases: Washington v. Harris, 186 Fed. App'x 865, 866
(11th Cir. 2006)(holding that inmate failed to state an Eighth Amendment claim where a prison
guard "crept up behind [the prisoner inmate] while he was working," grabbed his genitals, kissed
him on the mouth, and threatened to perform oral sex on him); Jackson v. Madery, 158 Fed.
App'x 656, 661 (6 1h Cir. 2005) (holding that the plaintiffs allegations that a guard grabbed and
rubbed his buttocks in a degrading manner during a shakedown in the food area was insufficient
to establish an Eighth Amendment violation); Hughes v. Smith, 237 Fed. App'x 756, 759 (3d
Cir. 2007) (holding that the inmate had not alleged an Eighth Amendment violation where the
correctional officer allegedly touched the inmate's testicles through his clothing during a single
pat-down frisk); Young v. Brock, 2012 WL 385494, at *4 (D.Colo. 2012) (holding that the
plaintiffs allegations that he was subjected to unnecessary and unwelcomed sexual touching by a
prison guard in the course of a single pat-down search did not state a claim under the Eighth
Amendment, particularly where the plaintiff conceded that the pat-down had a penological
purpose); Pantusco v. Sorrell, 2011 WL 2148392, at *7-8 (D.N.J. 2011) (holding that the
plaintiffs Eighth Amendment claim failed because a single instance of groping during a routine
pat-down frisk did not amount to cruel and unusual punishment); Escobar v. Reid, 668 F.Supp.2d
1260, 1278, 1295-96 (D.Colo. 2009) (holding that a guard's alleged suggestive, sexual touching
of an inmate did not state a constitutional violation); and Williams v. Anderson, 2004 WL
2282927, at *4 (D.Kan. 2004) (finding no Eighth Amendment violation where a prison guard
grabbed a pre-trial detainee's buttocks, exposed his genitals to the inmate plaintiff, and made
crude sexual remarks).
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Here, Plaintiffs entire legal claim is based on a single occurrence wherein there was
knuckle-to-buttock contact for a short period of time. ECF No. 5; ECF No. 5-1, page 1
(grievance complaining that "when Thompson placed the handcuffs on me, he pressed his
knucles [sic] hard up against my left butt-cheek."). Even in Plaintiffs other filings in this case,
Plaintiff focuses solely on this single incident in which Defendant's knuckles pressed against
Plaintiffs left butt-cheek. ECF No. 17. Even taking his factual allegations as true, Plaintiffs
allegations fail to state an Eighth Amendment claim. 3
IV.
CONCLUSION
Based on the foregoing, Defendant's motion to dismiss will be granted.
An appropriate Order will issue.
Isl Susan Paradise Baxter
December 19, 2016
SUSAN PARADISE BAXTER
United States Magistrate Judge
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Any amendments to Plaintiffs complaint would be futile in this action. Federal Rule of Civil
Procedure l 5(a)(2) states that "the court should freely give leave when justice so requires." Id.
"In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc.--the leave sought should, as the rules require, be freely given." Farnan v.
Davis, 371U.S.178, 182 (1962) (interpreting Federal Rules of Civil Procedure). An amendment
would be futile when the complaint, as amended, would fail to state a claim upon which relief
could be granted. In re NAHC, Inc. Securities Litig., 306 F.3d 1314, 1332 (3d Cir. 2002).
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