SARVEY v WETZEL et al

Filing 76

MEMORANDUM OPINION The motion for summary judgment of Defendants John Wetzel, Joanne Torma, Joyce Wilkes, and Brian Shank is granted in part and denied in part. The motion is denied as to Plaintiff Sarvey's claim for injunctive relief and nominal damages against John Wetzel, Joanne Torma and Lonnie Oliver (as successor to Torma). The motion is granted in all other respects. An appropriate order will follow. Signed by Magistrate Judge Richard A. Lanzillo on 1/16/2019. (dm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MELISSA SARVEY,
Plaintiff

JOHN WETZEL, Secretary of the
Pennsylvania Department of Corrections;
JOANNE TORMA, Superintendent of SCI
Cambridge Springs; JOYCE WILKES,
Former Superintendent of SCI Cambridge
Springs; KEITH MA YO, Corrections
Officer at SCI Cambridge Springs; BRIAN
SHANK, Former Corrections Officer at SCI
Cambridge Springs,
Defendants

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Case No. 1:16-cv-00157 (Erie)

UNITED STATES MAGISTRATE JUDGE
RICHARD A. LANZILLO

MEMORANDUM OPINION

I.

Introduction
The Court of Appeals for the Third Circuit recently noted 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." Ricks v. Shover, 891 F.3d 468,473 (3d Cir. 2018). In this case, Plaintiff Melissa
Sarvey, an inmate incarcerated with the Pennsylvania Department of Corrections, alleges that
Defendant Keith Mayo, a corrections officer at the State Correctional Institution at Cambridge
Springs (SCI-Cambridge Springs), sexually assaulted her in violation of the Eighth
Amendment's guarantee of freedom from "cruel and unusual punishment," and that the other
Department of Corrections Defendants acted with deliberate indifference to her safety and the
conditions that permitted Mayo's violation of her constitutional rights.

1

Currently pending before the Court is a motion for summary judgment filed by
supervisory prison officials and a corrections officer. For the reasons discussed below, the
motion will be granted in part and denied in part.
II.

Parties and Jurisdiction
Sarvey initiated this civil rights action on June 21, 2016, naming five individuals as

defendants: John Wetzel, Secretary of the Pennsylvania Department of Corrections; Joanne
Torma, former Superintendent of SCI-Cambridge Springs; Joyce Wilkes, the former
Superintendent of SCI-Cambridge Springs; and Corrections Officers Keith Mayo and Brian
Shank, both of whom worked at SCI-Cambridge Springs during the time relevant to this action.
Defendants Wetzel and Torma have been sued in both their official and individual capacities. 1
ECF No. 1, at 3, ,r,r 9,10. Defendants Wilkes, Mayo and Shank have been sued in their
individual capacities. Id. at ,r,r 11-13. All defendants except Mayo have moved for summary
judgment.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and§ 1343. All parties have
consented to having a United States Magistrate Judge exercise jurisdiction over this matter. 2
ECF No. 13, ECF No. 25. See also 28 U.S.C. § 636(c).

1

Defendant Torma retired as Superintendent of SCI-Cambridge Springs in 2017 and, to the extent she has been sued
in her official capacity, Superintendent Lonnie Oliver now stands in her stead. See Fed. R. Civ. P. 25(d); ECF No.
61, at 6141; ECF 67, at 4,141.
2

On September 24, 2018, this matter was reassigned from United States Magistrate Judge (now United States
District Judge) Susan Paradise Baxter to the undersigned. ECF No. 73.

2

III.

Relevant Factual and Procedural Background 3
Sarvey has been incarcerated at SCI-Cambridge Springs since 2012. ECF No. 1, at 5.

118; ECF No. 68-3, at 78-79. She began working under Mayo's supervision in the prison's
education building (also known as Building 4) in February of 2014. ECF No. 68-3, at 18-19.
Sarvey alleges that Mayo sexually assaulted her on September 18, 2014, while they were alone
in the maintenance elevator of Building 4. 4 ECF No. 1, at 2, 12. On October 3, 2014, before
reporting this assault, Sarvey and another inmate, Elisa Rios, filed a complaint pursuant to the
Prison Rape Elimination Act of 2003 ("PREA'') against Mayo and Shank alleging that they had
sexually assaulted other inmates. 5 Specifically, Rios reported that she witnessed Shank kissing
an inmate in an office located in the education building. ECF No. 68-2, at 2. Rios also reported
that Mayo "smacked her buttocks with a ruler" and that Defendant Shank was present when this
occurred. Id. Sarvey reported witnessing Mayo taking an inmate onto an elevator in the
education building "to perform sexual acts." Id. This inmate admitted to entering the elevator
with Mayo and "embracing" him, but she denied that any sexual activity took place. Id. at 3.
An investigation determined that Mayo and Shank used inappropriate nicknames for
inmates and announced "code names" over the intercom to alert each other when prison

3

Unless otherwise noted, the facts recited below are taken from the parties' respective Concise Statements of
Material Facts and responses thereto. [ECF Nos. 61, 67, 69]. Where a party responded to a properly supported
factual statement with: "denied as stated" and did not identify the substance of the statement that the party "denied,"
the Court has treated the statement as admitted. A denial "as stated" is, in effect, an admission to the substance of
the statement. See, e.g., Fredv. Pa. Dept. Transp., 2015 WL 3875911 at *2 (M.D. Pa. June 23, 2015). Where a
party's brief has cited directly to the record without reference to a concise statement, the Court has also cited to the
record. Finally, in certain instances, the Court has cited directly to the record to assist in resolving the summary
judgment motion.
4

There was some confusion in the record whether the alleged assault took place on September 18, 2014 or
September 19, 2014. See, e.g., ECF No. 61, at 2, ~ 4, ECF No. 66, at 3. The parties now agree that the assault took
place on September 18, 2014.

5
The PREA is a federal law enacted to address the problem of sexual assault of prisoners. See 34 U.S.C. §§ 3030130309 (2012).

3

administrators were in the building. Id. at 3. The Department's Office of Special Investigations
and Intelligence ("OSII") i[RLJJconcluded that the "abuse [was] established and the PREA
allegation is substantiated" because another inmate "observed CO 1 Mayo striking inmates on the
buttocks with a ruler." Id. at 4. Mayo received a fifteen-day suspension but remained employed.
Defendant Shank took medical leave and ultimately retired from the Department. ECF No. 6817, at 41.
Sarvey filed her own PREA complaint against Mayo on October 11, 2014. ECF No. 6818. She alleged that Mayo forced an open-mouth kiss on her, groped her breasts under her shirt
and bra, and digitally penetrated her vagina while they were alone inside the maintenance
elevator of Building 4 on September 18, 2014. ECF No. 1, at 8 ,i,i 36-37, 40. See also ECF No.
61, at 2, ,i 4; ECF No. 67, at 1, ,i 4; ECF No. 68-18. During the investigation of this incident,
Mayo admitted taking Sarvey into the maintenance elevator, but denied sexually assaulting her.
ECF No. 68-18, at 13. The DOC ultimately concluded that it was unable to substantiate Sarvey' s
allegations. 6 Id. at 3.
After exhausting her administrative remedies, Sarvey filed her Complaint against the
Defendants in this action on May 24, 2016. 7 On November 30, 2017, after the completion of
discovery, Defendants Wetzel, Toma, Wilkes, and Shank filed the instant Motion for Summary

6

In her brief in opposition, and then again during oral argument, counsel for Sarvey emphasized that a DOC finding
that a PREA complaint is "unsubstantiated" is not a finding that the complaint is "unfounded" or that the conduct
alleged did not occur. ECF No. 66 at 5. Rather, such a determination means that the evidence presented was found
to be insufficient to establish that the abuse occurred. Counsel for the Defendants acknowledged that a PREA
complaint is often determined to be "unsubstantiated" when no video surveillance or eyewitness verification of the
abuse exists and the dispute comes down to an inmate's word against the word of the corrections officer accused of
misconduct. The record concerning this issue is not well-developed, and no such policy has been advanced by
Sarvey in support of her claim in this case. However, any policy that credits, or has the effect of crediting, the word
of one witness or party over another without proper consideration of the multitude of factors that relate to credibility
would appear to be arbitrary and contrary to principles of due process.
7
The Defendants previously moved for partial summary judgment, arguing that Sarvey did not exhaust her
administrative remedies. ECF No. 26. The Court denied that motion. ECF No. 72.

4

Judgment. 8 The motion requires the Court to determine whether genuine issues of material fact
remain regarding the claims against Defendants Wetzel, Torma, and Wilkes, as supervisors and
policymakers within the DOC system, and against Defendant Shank for failing to protect Sarvey
from Mayo.
IV.

Standard of Review
To prevail on a motion for summary judgment, the Defendants, as the moving

parties, must demonstrate that "there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To assess whether the moving
party has satisfied this standard, the Court does not engage in credibility determinations.
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639,643 n.3 (3d Cir. 1998). The Court
views the facts and draws all reasonable inferences in the light most favorable to the nonmovant, here Plaintiff Sarvey. Scott v. Harris, 550 U.S. 372, 378 (2007). The moving party
bears the initial burden of identifying evidence, or the lack thereof, which demonstrates the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25
(1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the non-moving party." Pearson v. Prison Health Service, 850 F.3d 526,
533-34 (3d Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). Once
that burden has been met, the nonmoving party may not rest on the allegations in the Complaint
but must "go beyond the pleadings and by [their] own affidavits, or by the 'depositions, answers
to interrogatories, and admissions on file,' designate 'specific facts showing that there is a
genuine issue for trial'." Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).

8

Sarvey's allegations of sexual abuse and claims against Mayo are not under review in this motion. Mayo has not
moved for summary judgment and Sarvey's claims against him will be considered by a jury at a later date.

5

V.

Discussion
A.

Section 1983

Sarvey brings her claims pursuant to 42 U.S.C. § 1983, which provides a mechanism for
individuals to recover damages and other relief for violations of rights secured by the
Constitution and other federal law. The statute authorizes a federal cause of action against every
person who, under color of state law "subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C.
§ 1983. Importantly, Section 1983 does not create rights; it simply provides a remedy for

violations of those rights created by the United States Constitution or other federal law. Kneipp

v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979); Markv. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
Defendants' status as state actors is not disputed. See, e.g., Auve v. Kneiss, 2005 WL
1322777, *1 n. 2 (M.D. Pa. June 1, 2005) (holding that remaining defendants, as present and
former Department employees, are unquestionably state actors). Similarly, the moving
Defendants do not dispute that Sarvey's allegations that Mayo sexually assaulted her state a
deprivation of a federally protected right. The Court of Appeals recently held that sexual abuse
inflicted on prisoners by prison officials can violate the constitutional protections afforded
inmates under the Eighth Amendment. Ricks, 891 F.3d at 473. In doing so, the Court noted that
such abuse "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 their offenses against society." Id. at 473,
474 (quoting Boddie v. Schneider, 105 F.3d 857,861 (2d Cir. 1997)).

6

The foundational question here is whether Sarvey can hold Defendants Wetzel, Torma,
Wilkes, and Shank liable for Mayo's alleged unconstitutional actions. Sarvey's claims against
the moving Defendants intertwine various theories of liability. She faults Defendants Wetzel,
Torma, and Wilkes, as supervisors and policymakers within the DOC system, for failing to
implement adequate policies relating to sexual assault in the prison, and for failing to properly
supervise Mayo. ECF No. 1, at 215. She claims that all of the moving Defendants failed to
protect her from Mayo's sexual assault where the risk of such an assault was known or obvious.

Id. at 316; 211106. Each of these claims is assessed under the same deliberate indifference
standard. See Christopher v. Nest/erode, 240 Fed. Appx. 481,489 n. 6 (3d Cir. 2007).
B.

Supervisory Liability

Generally, state actors are liable only for their own unconstitutional conduct. Bistrian v.

Levy, 696 F.3d 352, 366 (3d Cir. 2012). Thus, supervisors like Wetzel, Torma and Wilkes may
only be held liable under § 1983 if they participated in the events that caused the constitutional
violation. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v.

Taylor, 451 U.S. 527,537 n.3 (1981)); Rizzo v. Goode, 423 U.S. 362, 372-73 (1976).
Accordingly, individual liability can be imposed under§ 1983 only if the state actor played an
"affirmative part" in the alleged misconduct. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.
2005) (citing Rode, 845 F.2d at 1207); Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986).
Government officials, therefore, may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior. Id. See also Mulholland v. Gov 't Cnty. of

Berks, Pa., 706 F.3d 227, 239 (3d Cir. 2017) (citation omitted). Furthermore, "it is not enough
for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the

7

superior had done more than he or she did." Sample v. Diec ks, 885 F.2d 1099, 1118 (3d Cir.
1989).
Although respondeat superior is inapplicable in this context, supervisors may be liable
for the unconstitutional acts of their subordinates where a sufficient causal nexus exists between
the supervisors' own conduct and the subordinate' s constitutional violation. Barkes v. First

Corr. Med., Inc., 766 F.3d 307, 316-19 (3d Cir. 2017), rev'd on other grounds, Taylor v. Barkes,
135 S. Ct. 2042 (2015). Specifically, the Court of Appeals has identified "two general ways in
which a supervisor-defendant may be liable for unconstitutional acts undertaken by
subordinates." Id. at 316. The first is when a supervisor personally joined the subordinate in
violating a plaintiffs rights, directed others to violate them, or, as the person in charge, had
knowledge of and acquiesced in the subordinate's unconstitutional conduct. Id. (quoting A.M ex

rel. JMKv. Luzerne Cnty. Juv. Detention Ctr., 372 F.3d 572,586 (3d Cir. 2014.) This is
sometimes referred to as "direct" supervisory liability. See, e.g., Palakovic v. Wetzel, 854 F.3d
209,225 n. 17 (3d Cir. 2017). The second is where a supervisor, "with deliberate indifference to
the consequences, established and maintained a policy, practice, or custom which directly caused
[the] constitutional harm." Id. This is often referred to as "policy or practice" liability. See,

e.g., Sloan v. Pa. Dept. Corr., 2017 WL 9487087 (W.D. Pa. Aug. 16, 2017); Smart v. Allegheny
Cnty., 2017 WL 3447888 (W.D. Pa. July 21, 2017).
This is not a "direct" supervisory liability case. Sarvey has not offered any evidence that
Defendants Wetzel, Torma or Wilkes personally participated or acquiesced in, directed, or
encouraged Mayo's alleged sexual assault upon her. Instead, Sarvey argues that the record is
sufficient to support "policy or practice" supervisory liability against Wetzel, Torma, and

8

Wilkes. 9

To hold a supervisor liable because his policies or practices led to an Eighth

Amendment violation, "the plaintiff must identify a specific policy or practice that the supervisor
failed to employ and show that: ( 1) the existing policy or practice created an unreasonable risk of
the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was
created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy
or practice." Beers-Capitol, 256 F.3d at 134 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989)). See also Craig v. N. J. Dept. of Corr., 2018 WL 4688349, at *3 (Sept. 28, 2018).
Where the plaintiff establishes these elements, liability arises because "a state official, by virtue
of his or her own deliberate indifference to known deficiencies in a government policy or
procedure, has allowed to develop an environment where there is an unreasonable risk that a
constitutional injury will occur, and that such an injury does occur." Barkes, 766 F.3d at 319-20
(emphasis in original).
C.

Supervisory Liability-Defendants Wetzel, Torma and Wilkes 10
1.

Identification of Policy or Practice

In evaluating Sarvey's claims, the Court begins by noting the existence of facially valid
policies in effect prior to and at the time of Mayo's assault upon Sarvey. DOC Policy DC-

9

The Court of Appeals for the Third Circuit has "expressed uncertainty as to the viability and scope of supervisory
liability" with respect to holding a supervisor indirectly liable for deficient policies or practices since the Supreme
Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). See Santiago, 629 F.3d at 130 n. 8; Palakovic v.
Wetzel, 854 F.3d 209,225 n. 17 (3d Cir. 2017); Bistrian v. Levi, 696 F.3d 352,366 n. 5 (3d Cir. 2012); Argueta v.
U.S. I.CE., 643 F.3d 60, 70 (3d Cir. 201 I); Bayer v. Monroe, 577 F.3d 186, 190 n. 5 (3d Cir. 2009). However, the
Court has held that, in the context of an Eighth Amendment deliberate indifference claim, its test for supervisory
liability has survived and is consistent with Iqbal. Barkes, 766 F.3d at 319-20.
10
Because the claims against Wetzel, Torma and Wilkes are distinct from those against Shank, the Court will
separately evaluate the viability of these claims. The Court notes that Sarvey has sued Wetzel and Torma in both
their official and individual capacities and the relief she seeks against them includes compensatory damages.
Defendants sued in their official capacities are immune from claims for monetary damages under the Eleventh
Amendment. Hafer v. Melo, 502 U.S. 21, 25 ( 1991) (internal quotation marks omitted). See also Singleton v.
Pittsburgh Bd. of Educ., 2013 WL 3305486 at *7 (W.D. Pa. July I, 2013) (holding compensatory damages
unavailable from defendants sued in their official capacities). Therefore, to the extent Sarvey seeks compensatory
damages against Wetzel and Torma in their official capacities, those claims are dismissed for failure to state a claim.

9

ADM 008 declares that the Department prohibits "any form of sexual abuse and/or sexual
harassment of an inmate." ECF No. 62-12, at 2, §1, III, A. The Department's policy defining
sexual abuse of an inmate by a staff member encompasses a wide range of behavior from actual,
physical contact between the vulva or anus of one and the penis of another, to voyeurism. ECF
No. 62-12, at 48-49, 52, 60. Further, sexual assault is defined to include "repeated verbal
comments or gestures of a sexual nature ... including demeaning references to gender, sexually
suggestive or derogatory comments about one's body or clothing, or obscene language or
gestures." Id. at 49, 54, 60.
The Department's policy indicates that it will "designate an agency-wide PREA
Coordinator to develop, implement, and oversee the Department's efforts to comply with the
National PREA Standards across all facilities; and each facility shall designate a PREA
Compliance Manager to coordinate the facility's efforts to comply with these standards." Id. at
§ 1, III, C. The Policy also indicates that "the PREA Coordinator shall report directly to the
Secretary of Corrections and/or the Executive Deputy Secretary of Corrections." Id. The policy
applies to "an allegation of sexual abuse ... and staff neglect or violation of responsibilities that
may have contributed to such incidents .... "

ECF No. 56-1, at 113.

Of course, the existence of facially valid policies does not insulate defendants from
liability where the record establishes that they acted with deliberate indifference to known or
obvious consequences. Kelly v. Borough of Carlisle, 622 F.3d 248, 263 (3d Cir. 2010). Sarvey
contends that Wetzel, Torma and Wilkes acted with deliberate indifference to her safety and the
safety of other inmates by failing to implement adequate practices and procedures under the
PREA. Claims, such as these, which allege a supervisor's failure to do something-failure to
discipline or failure to supervise, for example-are a subcategory of policy or practice liability.

10

Barkes, 766 F.3d at 319-20 (citation omitted). See also Sample, 885 F.2d at 1117-118 (3d Cir.
1989); City of Canton v. Harris, 489 U.S. 378 (1989); Heggenmiller v. Edna Mahan Corr. Inst.
for Women, 128 Fed. Appx. 240 (3d Cir. 2005). Deliberate indifference in this context may be
demonstrated by either "showing that a supervisor failed to adequately respond to a pattern of
past occurrences of injuries like the plaintiffs," or "by showing that the risk of constitutionally
cognizable harm was 'so great and so obvious that the risk and failure of supervisory officials to
respond will alone' support the finding that the two-part test is met." Beers-Capitol, 256 F.3d at
136-37 (citing Sample, 885 F.2d at 1099). "The simplest way for a plaintiff to make out such a
claim is to demonstrate a supervisor's failure to respond appropriately when confronted by a
pattern of injuries similar to the plaintiffs, thereby suggesting deliberate indifference on the part
of the supervisor." Counterman v. Warren Cnty. Corr. Facility, 176 Fed. Appx. 234, 240-241
(3d Cir. 2006) (citing Sample, 885 F.2d at 1118).
As an initial matter, Sarvey has met her burden to identify the policies, practices or
procedures that she claims are deficient. Broadly, Sarvey faults Wetzel, Torma, and Wilkes for
( 1) failing to "implement policies to ensure the safety of women incarcerated within the
Commonwealth" generally, and at SCI-Cambridge Springs in particular, (2) failing to properly
investigate allegations of sexual abuse, (3) failing to protect her following Mayo's attack on her,
(4) returning Mayo to duty and forcing Sarvey to have regular contact with him, and (5) failing
to monitor or supervise their subordinates. ECF No. 1, at 2, 15; ECF No. 1, at 3, 16; ECF No.
1, at 21, 11105, 107. Specifically, Sarvey is critical of the supervisor Defendants' policies and
practices relating to implementation of the PREA and its standards. 11 See 34 U.S.C. §§ 30301-

11

When Congress adopted the PREA in 2003, it identified its purposes to include "mak[ing] the prevention of prison
rape a top priority in each prison system"; implementing national standards for prison rape prevention and
punishment; "protect[ing] the Eighth Amendment rights of Federal, State, and local prisoners"; and "increase[ing]
the efficiency and effectiveness of Federal expenditures through grant programs such as those dealing with ... prison

11

30309 (2012); ECF No. 62-12 (Department Policy DC-ADM 008, "Sexual Harassment of or
Sexual Contact with Inmates." DC-ADM 008, PREA Policy Procedures Manual; see also Moore
v. Lamas, 2017 WL 4180378, at *40 n.4 (M.D. Pa. Sept. 21, 2017). Her Complaint alleges that
the Department failed to:
•

Implement a policy of unannounced rounds [ECF No. 1. at 15,, 77-78];

•

Enforce PREA's limitations on cross-gender viewing and searchers, including
prohibiting cross-gender pat-down searches and a PREA requirement that staff of
opposite genders "announce their presence when entering a housing unit" [ECF
No. 1, at 15,, 79-80];

•

Ensure that previous complaints of sexual harassment/assault against Defendant
Mayo and Defendant Shank were properly investigated [ECF No. 1, at 16, , 8182];

•

Adequately train SCI-Cambridge Springs staff on sexual abuse and sexual
harassment topics, thereby resulting in repeated sexual abuse of inmates and
inappropriate sexual contact between officers and inmates [ECF No. 1, at 16,,
83-84];

•

Adequately implement procedures, policies, training and/or supervision to ensure
staff at SCI-Cambridge Springs report all instances of sexual abuse and
harassment, a consequence of this being Defendant Shank's failure to report
Defendant Mayo's sexual harassment of Sarvey [ECF No. 1, at 16-17,, 86];

•

Enforce effective separation of Defendant Mayo from Plaintiff Sarvey, contrary to
PREA's instructions regarding the protection of inmate accusers [ECF No. 1, at
17,, 87-88];

•

Implement or enforce procedures that would have provided Sarvey with
notification or information regarding the outcome of the Department's
investigation of her claims against Defendant Mayo [ECF No. 1, at 17,, 89-90];

construction, maintenance, and operation." Walsh v. NJ. Dept. of Corr., 2017 WL 3835666, at *3 (Aug. 31, 2017)
(quoting 42 U.S.C. § 15602 (2)-(3), (7)-(8)). The statute's goals include "increase[ing] the accountability of prison
officials and ... protect[ing] the Eighth Amendment rights of Federal, State, and local prisoners." Id. at *4 (quoting
Amaya v. Butler, 2017 WL 2255607, at *5 (S.D. Ill. May 23, 2017)). Although the PREA does not create a private
right of action for an inmate, that "does not mean that this statute and [its] national standards are meaningless in
litigation." Id. at *3 n. 5. "[T]he fact that a prison facility may have failed to adopt and enforce national standards
may, or may not, be evidence of deliberate indifference depending on the circumstances." Id.

12

•

Implement PREA's presumption that termination of employment be the preferred
disciplinary sanction for staff who engage in sexual abuse of inmates [ECF No. 1,
at 18, ~ 91-92];

•

Report or create a method for reporting all terminations based on sexual
harassment/assault to local law enforcement authorities [ECF No., at 18. ~ 93-94].

Having determined that Sarvey has sufficiently identified the supervisor Defendants'
alleged policy failures, the Court must now determine whether the record is sufficient to support
findings that ( 1) the existing policy or practice created an unreasonable risk of the Eighth
Amendment injury; (2) the supervisor Defendants were aware that the unreasonable risk was
created; (3) the supervisor Defendants were indifferent to that risk; and (4) Sarvey' s injury
resulted from the policy or practice.
2.

Pattern of Injuries/Unreasonable Risk of Harm

The record in this case does not permit a reasonable jury to find a pattern of injuries like
Sarvey's or a sufficiently direct causal connection between the allegedly deficient policies and
Mayo's sexual assault to permit her supervisory liability claims to proceed against Defendants
Wetzel, Torma, and Wilkes. The Court of Appeals instructs that "[n]ormally, an unreasonable
risk in a supervisory liability case will be shown by evidence that such harm has in fact occurred
on numerous occasions." Id. See also Brown v. Muhlenberg Township, 269 F.3d 205,216 (3d
Cir. 2001 ). In other words, Sarvey needs to identify a pattern of past occurrences of injuries like
those she suffered. Beers-Capitol, 256 F.3d at 136-37. Sarvey cannot do so.
In an attempt to show a cognizable pattern, Sarvey points to various items in the record.
First, she identifies a spread-sheet which lists PREA investigations initiated by the Department's
Office of Special Investigations and Intelligence at SCI-Cambridge Springs in the two years
before Mayo's alleged sexual assault against her. ECF No. 68-20, at 2-5. Next, Sarvey cites a
case filed in this Court in 2015 wherein the Department admitted they pursued terminating a
13

corrections officer's employment after he made sexually harassing remarks to inmates and had
inmates "expose themselves" to him. ECF No. 66, at 12 (citing Bucano v. Austin, C.A. No. 1:15cv-0067). And finally, Sarvey points to a Pennsylvania State Police Incident Report, detailing a
complaint of sexual harassment/assault by a prison staff member (a food service instructor)
against an inmate in the dietary department, neither of whom are involved in this case. ECF No.
62-11.
Although this collection of incidents may demonstrate generally that incidents of sexual
harassment and sexual assault have occurred at the prison, such information is not the proper
focus when determining supervisory liability. "General knowledge of prior incidents of
misconduct does not place supervisory personnel on notice that a particular incident might
happen with sufficient probability to charge the supervisory personnel with the scienter needed
for deliberate indifference, while particularized knowledge of risk to a particular inmate or from
a particular inmate can provide the awareness ofrisk necessary to hold a prison official liable."
Hazel v. McCullough et al., 2007 WL 1875807 (W.D. Pa. June 27, 2007). See also Calloway v.
US Marshals Serv., 2007 WL 1875808 (W.D. Pa. June 27, 2007) ("[C]ircuit precedent is very
clear that general knowledge of prior incidents of misconduct does not place supervisory
personnel on notice that a particular incident might happen with sufficient probability to charge
the supervisory personnel with the scienter requirement needed for deliberate indifference.").
The Court of Appeals' decision in Heggenmiller v. Edna Mahan Correctional Institution
for Women, although not precedential, is instructive. In that case, inmates sued various prison
supervisors for being deliberately indifferent to potential sexual assault by corrections officers.
128 Fed. Appx. 240 (3d Cir. 2005). Although prison officials were aware that corrections
officers had committed three serious (and numerous less serious) sexual assaults on inmates in

14

the past, the Court of Appeals concluded such information was insufficient to impute knowledge
to the supervisors that there was a "substantial risk of harm" that such an assault by officers
against the plaintiff might take place." Id. at 245. In making this determination, the Court of
Appeals expressly rejected the premise at the heart of Sarvey' s case: that a collection of prison
records describing unrelated assaults over a period of time can be the foundation of an Eighth
Amendment claim brought by a specific inmate based on a singular assault by a corrections
officer. See, e.g., Schauer v. Lebanon Cnty., 2014 WL 2809633, at *6 (M.D. Pa. June 20, 2014).
This is because reports of other similar acts over a period of time say "noting about the
likelihood that a particular assailant would attack a specific inmate." Id. (citing Heggenmiller,
128 Fed. Appx. at 245-46).
The evidence rejected in Heggenmiller is the type of evidence found in the summary
judgment record here. The Pennsylvania State Police report, for example, details inappropriate
sexual behavior by a staff member toward an inmate in May of 2015. ECF No. 62-11. The
report, dated October 22, 2015, relates that the staff member tried to engage the inmate in
conversation of a sexual manner, flicked his tongue at her in a sexual way, and brushed up
against her buttocks so that she could feel his penis through her clothing. Id. at 3. The
investigation was closed when the inmate-whose name has been redacted as has the staff
member's-refused to cooperate and would not endorse the filing of criminal charges. Id.
The summary of the Department's PREA investigations similarly fails to support a
pattern of abuse sufficient to sustain Sarvey's supervisory liability claim. Although titled
"Abuse/PREA - Status Report," the document provides no evidence detailing the type of sexual
abuse investigated, the resolution of the investigations, or against whom the complaints were
filed. ECF No. 68-20, at 2-5. This exhibit, while showing the number of PREA claims filed at

15

SCI-Cambridge Springs from January 19, 2010 through March 13, 2017, lacks information from
which a factfinder could reasonably find a pattern of sexual abuse comparable to that allegedly
inflicted by Mayo on Sarvey. The document is a spread-sheet detailing case numbers, case status
(all of which are marked "closed"), the date received, the date of the incident, the complainant,
and the institution or person to which the complaint was assigned. Id. The document also
contains a column for "focus of the investigations," where various unexplained codes are listed.

Id.
This chart is silent on the nature of the sexual abuse complained of and does not include
information concerning the merits of the allegations or results of investigation. 12 Further, there
is no information identifying the perpetrators, which could also have been illuminating on the
question of pattern. See Tilga v. United States, 2014 WL 12783121 at* 16 (D.N.M. Dec. 5,
2014) (rejecting "generalized allegations" of PREA violations).
Lastly, the fact that the Department terminated the employment of a corrections officerwho is not a party to this action-for violating the Department's Code of Ethics by making
sexually harassing comments to inmates and forcing inmates to expose themselves to him cannot
be used to impute knowledge of the risks posed by behavior such as Mayo's. See Bucano, C.A.
No. 1: 15-cv-0067, ECF No. 85, at 8-9. Simply put, this evidence does not meet the exacting
standards for establishing the scienter element of supervisory liability under the Eighth
Amendment.
As an alternative basis for "policy or practice" supervisory liability, Sarvey may argue
that this case is one of those "situations in which the risk of constitutionally cognizable harm is

12
Because the Department's policy on sexual harassment and sexual abuse covers a wide range of sexual behavior,
see discussion, supra., this document's silence on the nature of the alleged conduct is particularly problematic for
pattern identification. See DC-ADM 008.

16

so great and so obvious that the risk and the failure of supervisory officials to respond will alone
support findings of the existence of an unreasonable risk ... and of indifference to it."' Beers-

Capitol, 256 F.3d at 134 (quoting Sample, 885 F.2d at 1118). Put another way, "[w]hen the risk
of harm is great enough, failure to respond to that risk can be circumstantial evidence of
deliberate indifference." Beers-Capitol, 256 F.3d at 133-34. This theory of liability against the
supervisor Defendants also fails, however, because the record is insufficient to allow a jury to
find that Mayo posed a great and obvious risk to which they failed to respond.
On this point, Beers-Capitol is instructive. There, the Court of Appeals held that male
corrections officers working at a juvenile detention center for girls did not pose an obvious risk
that they would exploit their positions in order to sexually assault the inmates. 256 F.3d at 13536. The Court, despite evidence that the risk of sexual misconduct by inmates was the subject of
staff training programs, did not think a hypothetical risk of sexual misconduct by corrections
officers was legally relevant. Id. The more salient inquiry-the Court of Appeals noted-was
what a supervisor knew about an actual pattern of sexual abuse by corrections officers. Id.
Since the evidence in Beers-Capitol showed that the supervisor was only aware of two
allegations of sexual misconduct by the corrections officers, sufficient evidence did not exist to
hold the supervisor to have been deliberately indifferent. Id. at 137-38. That the supervisors in

Beers-Capitol failed to implement what the Court of Appeals believed to be "seemingly
obvious" precautions and policies that were recommended by the American Corrections
Association and which may have reduced the risk of a corrections officer exploiting time alone
with an inmate was evidence of negligence, but not of deliberate indifference. Id. See also

Hazel, 2007 WL 1875807, at *6.

17

Like the circumstances in Beers-Capitol, the record in this case establishes that the
supervisor Defendants may have been on notice of two incidents of potentially relevant
misconduct by Mayo. The first instance in the record is a copy of a 2008 report and reprimand
Mayo received for unprofessional conduct. ECF No. 68-7, at 2. This report stems from an
inappropriate personal relationship with a co-worker. Id. at 4. The report did not involve sexual
harassment or assault against an inmate. Second, Sarvey points to deposition testimony of two
prison employees as evidence of the risk posed by Mayo. Jamie Rodriguez, a corrections unit
manager at SCI-Cambridge Springs, stated that she and at least one other staff person at the
prison thought Mayo was "creepy." ECF No 68-13, at 9. Although she testified that Mayo had
a reputation for being a "player" and a "flirt," she had never seen him flirt with inmates. Id. She
testified that some inmates told her Mayo had flirted with them, including Sarvey and other
inmates in Building 4. Id. Rodriguez also testified that other employees at the prison thought
Mayo was "creepy." Id. Sarvey maintains that this testimony shows a wide awareness of the
risk Mayo posed of committing sexual assault. ECF No. 66, at 13. The Court disagrees. There
is no evidence that Rodriguez informed any of the supervisor Defendants that she thought Mayo
was "creepy" or that inmates told her that Mayo flirted with them. Further, Mayo's reputation as
a "creep" or a "player" is not sufficient to identify him as posing a "substantial risk of serious
harm." Farmer, 511 U.S. at 842.
Another co-worker, corrections officer Samantha Pring, testified in her deposition that
Mayo was "creepy," and that on one particular instance, Mayo moved toward her in what she
reasonably interpreted as a "sexual advance." ECF No. 68-12, at 15-17. But Pring also testified
that she never spoke to anyone at the prison-including any of the supervisor Defendants-about
Mayo. Id. at 15. Like Rodriguez' testimony, Pring's testimony does not help Sarvey. While

18

certain of Mayo's coworkers in the prison felt he was a "player," or "creepy," or "a flirt," it does
not follow that the supervisor Defendants were on notice that he posed a substantial and obvious
risk of serious harm to Sarvey or inmates in general.
In sum, the evidence of record is insufficient to raise a genuine issue of material fact that
the supervisor Defendants were aware that an unreasonable risk existed relating to any alleged
deficient policy, practice, or procedure that led to Mayo's assault upon Sarvey. Therefore, the
Court will grant Defendants Wetzel, Torma, and Wilkes' motion for summary judgment to the
extent that it seeks dismissal of Sarvey's claim of supervisory liability based upon policies or
practices alleged to have permitted or facilitated Mayo's physical assault or assaults upon her.
D.

Claims Based Upon Supervisor Defendants' Failure to Protect Sarvey Prior to
Mayo's Assault

The Eighth Amendment's prohibition against the infliction of cruel and unusual
punishment has been interpreted to impose upon prison officials a duty to take reasonable
measures '"to protect prisoners from violence at the hands of other prisoners."' Hamilton v.
Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer, 511 U.S. at 825). Importantly,
Farmer has been interpreted to apply to assaults on inmates committed by guards. See, e.g.,
Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337,347 (1981) ("Being
violently assaulted in prison is simply not 'part of the penalty that criminal offenders pay for
their offenses against society.' ")); Miskovitch v. Lt. Hostoffer, 2010 WL 2404434, at *4 (May
19, 2010) (citing Farmer, 511 U.S. at 833 ("[T]he Eighth Amendment requires prison officials to
take reasonable measures to protect prisoners from violence at the hands of other prisoners, as
well as at the hands of guards or other state actors.")).
In order for her "duty to protect" theory of liability to survive the Defendants' summary
judgment motion, Sarvey "is obligated to produce sufficient evidence to support the inference
19

that defendants 'knowingly and unreasonably disregarded an objectively intolerable risk of
harm."' Jones v. Day, 2007 WL 30195 (W.D. Pa. Jan. 4, 2007) (citing Beers-Capitol, 256 F.3d
at 132 (3d Cir. 2001 )). Again, such a claim "be it for failure to protect, denial of equal
protection, or deliberate indifference to medical needs, may not be premised solely on a

respondeat superior theory of liability asserting that the supervisor is vicariously liable for the
actions of his subordinates." Campoverde v. Lanigan, 2016 WL 4975197 at *2 (D.N.J. Sept. 16,
2016) (citations omitted).
Sarvey's principal evidence in support of her failure to protect claim is the deposition
testimony of Mayo's supervisor, Richard Wellington. See ECF No. 68-15, at 56-61. Sarvey
points to Wellington's testimony that "management" tolerated Mayo and Shank putting inmates
at risk, that this was done out of "laziness," and that it was his belief that this laziness was
tantamount to "recklessness." Id. at 53-56. When he spoke of "management," however,
Wellington was not talking about the supervisor Defendants in this case:
Q:

When you say the word management, do you have a
personal knowledge as to whether Superintendent
Wilkes or Superintendent Torma knew anything
about what CO Mayo or Shank may or may not
have been up to?

A:

I don't believe they knew.

Id. at 61. The supervisor Defendants cannot protect Sarvey from risks or dangers concerning
which they have no knowledge. At best, the record in this case includes speculation and
innuendo regarding the supervisor Defendants' knowledge of Mayo's misconduct or potential for
misconduct. This evidence does not raise a genuine issue of material fact that the supervisory
Defendants had actual knowledge of Mayo's alleged abuses or misconduct prior to his assault
upon her.

20

Sarvey's attempt to impose liability on the supervisor Defendants for a lack of security
cameras in some locations of SCI-Cambridge Springs likewise fails. See ECF No. 66, at 9. For
certain, "prison blind spots undoubtedly create a risk of danger to inmates, making prison
officials' knowledge of a blind spot relevant to the deliberate indifference inquiry." Lee v. Link,
2018 WL 1156154, at *3 (E.D. Pa. March 5, 2018). But "knowledge of the existence of a blind
spot, standing alone, does not support the reasonable inference that prison officials knew of a
substantial risk of serious harm to inmate safety." Id. See also Blueberry v. Comanche Cty.
Facilities Auth., 672 Fed. Appx. 814,818 (3d Cir. 2016) (affirming the dismissal of a failure-toprotect claim at the summary judgment stage based in part on the lack of any evidence that
prison blind spots "presented such an obvious risk that [the prison] was aware of them before the
incidents alleged in this case"); Mitchell v. New York, 2015 WL 13019618, at *3 (N.D.N.Y. Mar.
11, 2015) (holding a plaintiffs "conclusory claim that the 'common area' had a 'propensity to be
highly violate' due to a 'blind spot,' "was insufficient to state a failure-to-protect claim absent
some allegation that the defendant "was aware of specific deficiencies in the security in that area
and failed to act, despite knowledge that 'a substantial risk of attacks in the [area] was pervasive
and well-documented'" (citation omitted)). Cf Marten v. Burns, 2015 WL 1431079, at *5 (W.D.
Pa. Mar. 27, 2015) (denying summary judgment on a failure-to-protect claim based on evidence
that prison officials knew that architectural blind spots existed in the prison's concrete yards and
that assaults occurred in the blind spots which were not detected by surveillance cameras or
staff). Here, again, the evidence is insufficient to support a finding of a pattern of guard-oninmate assaults in elevators or other areas not subject to surveillance, or that the supervisor
Defendants were aware of such assaults. Accordingly, the Court finds that summary judgment

21

should be entered in favor of Defendants Wetzel, Torma, and Wilkes on Sarvey's failure to
protect claim to the extent it is based upon Mayo's assault or assaults upon her.
E.

Claims Based Upon Supervisor Defendants' Failure to Protect Sarvey After
Mayo's Assault

Sarvey additionally contends that the supervisor Defendants failed to protect her because
they did not separate Mayo from her following her report of the assault, thereby subjecting her to
"continuing psychological and physical trauma." ECF No. 1 at 21, ,107. Here, she argues that
Mayo's continued employment at the prison subjects her to hearing Mayo's voice over the prison
intercom, and to him having "in-person contact with [her] multiple times, including on the prison
walkway, in the cafeteria, and most disturbingly, in her residential unit." ECF No. 66 at 14-15.
Although these facts cannot serve as a basis for liability for Mayo's September 18, 2014 sexual
assault because they occurred after that assault, Beers-Capitol, 256 F.3d at 138, the Court finds
that genuine issues of material fact remain regarding whether the supervisor Defendants' practice
of knowingly continuing to expose Sarvey to Mayo, her alleged attacker, establishes an
independent Eighth Amendment violation for which Sarvey may be entitled to injunctive relief
and nominal damages.
Requiring a sexual assault victim regularly and unnecessarily to encounter and observe
her attacker and hear the sound of her attacker's voice is likely to cause unwarranted and
potentially extreme distress to the victim. Although the record is not well-developed concerning
the frequency Sarvey is forced to encounter Mayo, Sarvey did testify that Mayo was assigned to
her residential unit at least once, and that she spent that night in the infirmary as a result. ECF
No. 68-3, at 108. She also testified that she has had further "in-person contact" with Mayo when
she has seen him "a few" times on the walkway and once in the prison yard. Id. at 109-110.

22

Further troubling is Mayo's use of the intercom, which the Defendants admit is one of the
duties associated with the new posting he was given after completing a suspension. ECF No. 60,
at 5-6. Although the record is unclear how often Sarvey hears Mayo's voice over the intercom or
the substance or duration of his announcements, Sarvey testified that hearing Mayo's voice
causes her distress and prompts her to discuss the matter, among other things, with a counselor
"about once a month." ECF No. 68-3, at 108. The supervisor Defendants are and have been
aware that Mayo's new assignment forces Sarvey periodically to encounter Mayo and regularly
to hear his voice over the intercom. Allowing the current arrangement to continue may
ultimately be determined to constitute deliberate indifference.
On this record, however, Sarvey's potential relief on this claim is limited to injunctive
relief because she has not alleged that she sustained any physical injury as a result of being
forced to encounter Mayo or having to hear Mayo's voice. Instead, she testified only that she
"goes to counseling that comes in from the outside about once a month now." ECF No. 68-3, at
108. The Prison Litigation Reform Act ("PLRA") provides that "[n]o Federal civil action may
be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a showing of physical injury." 42 U.S.C. §
1997e(e). The "physical injury" requirement of§ 1997e(e) may be satisfied by a "less-thansignificant-but-more-than-de minimis physical injury as a predicate to allegations of emotional
injury." Mitchell v. Horn, 318 F.3d 523, 534 (3d Cir.2003). However, the PLRA "does not bar
claims for nominal damages, punitive damages, or prospective equitable relief, such as injunctive
or declaratory relief." Joseph v. Asure, 2012 WL 3613962, at *3 (M.D. Pa. Aug. 2, 2012), report
and recommendation adopted, 2012 WL 3620376 (M.D. Pa. Aug. 21, 2012) (citing Mitchell, 318
F.3d 523 at 533-34). Here, Sarvey has failed to offer evidence that she suffered a physical injury

23

as a result of encountering Mayo and hearing his voice over the prison intercom after his assault
upon her. Defendants Wetzel, Torma, and Wilkes are therefore entitled to summary judgment on
Sarvey's demand for compensatory damages as to this aspect of her Eighth Amendment claim,
but summary judgment is denied as to her request for injunctive relief and nominal damages
against these Defendants.
VI.

Failure to Intervene or Report - Defendant Shank
The Court separates its discussion of Defendant Shank because the nature of the claims

and evidence against him differ from those against Defendants Wetzel, Torma, and Wilkes.
Sarvey acknowledges that Shank is neither a policymaker nor a supervisor and admits that Shank
was not present when Mayo assaulted her. Nonetheless, she contends Shank is liable for Mayo's
sexual assault because he was aware of the substantial risk Mayo posed to her and disregarded it.
ECF No. 66, at 18. She argues that liability should be imposed on Shank for his failure to report
Mayo's actions and for his failure to intervene and protect her from Mayo.
The Court of Appeals has specifically concluded that "a corrections officer's failure to
intervene in [an assault] can be the basis of liability for an Eighth Amendment violation under
§ 1983 if the corrections officer had a reasonable opportunity to intervene and simply refused to
do so." Smith v. Messinger, 293 F.3d 641,650 (3d Cir. 2002); Ricks, 891 F.3d at 479. In order
to impose liability under this theory, Sarvey must produce evidence to show that Shank "ignored
a realistic opportunity to intervene" in Mayo's assault. Smith, 293 F.3d at 652; Ricks, 891 F.3d
at 479. The evidence in this case, however, cannot support a finding that Shank was in a position
to observe, let alone intervene in Mayo's assault upon Sarvey. 13

13
Despite her citation to his deposition testimony, Sarvey's contention that Shank had "direct visibility into Mayo's
misconduct" is unfounded. Nothing in the summary judgment record supports this assertion. And, Sarvey's citation
to his testimony is incorrect. Shank only testified that "I made sure that the inmates coming in and out of the
building - Building 4 - were accounted for, ID cards were surrendered for accountability and Officer Mayo took

24

Rather, Sarvey appears to be advancing a more sweeping theory of peer-employee
liability than the one recognized in Smith and Ricks. Under this theory, Shank would face
liability for Mayo's assault based upon his failure to report Mayo's earlier misconduct, including
incidents of striking inmates on the buttocks with a ruler. Shank admits to striking inmates with
a ruler, ECF. No. 68-17 at 25, and that he was present when Mayo hit Sarvey and other inmates
on their buttocks with a ruler. See ECF No. 60, at 15. In his deposition, Shank related:
Q:

Did Officer Mayo have a ruler?

A:

I probably have seen him with mine.

Q:

Okay. What have you seen him doing with yours?

A:

I would have to say, you know - I saw him sitting there
with it. Did I see him hit an inmate with it? Yes.

Q;

Okay. Did you see that once? Did you see that a couple of
times?

A:

I would say a couple of times.

Q:

Okay. Do you remember how the inmates reacted?

A:

It was more of a jokey thing.

Q:

Did Officer Mayo say anything about it at the time?

A:

Nope.

ECF. No. 68-17 at 25.
This evidence, as the Department's OSII itself concluded, established a violation of the
PREA, and resulted in disciplinary action against Mayo. It is also undisputed that Shank did not
report Mayo's striking of inmates on the buttocks with a ruler to appropriate personnel within the

care of the everyday function of the building." ECF No. 68-17 at 7. His testimony says nothing about Shank's
ability to witness Mayo entering or exiting the elevator with an inmate.

25

prison and only acknowledged Mayo's misconduct during the investigation that followed Rios
and Sarvey's submission of their October 3, 2014 PREA complaint.
Sarvey's theory presumably posits that had Shank properly reported Mayo's earlier
misconduct, a disciplinary response would have intervened to prevent the assault in the elevator.
This nexus, however, is too attenuated to support Sarvey's claim. While Shanks's failure to
report (and potentially to intervene and stop) Mayo's striking of inmates with a ruler evidences
employee misconduct on the part of Shank and grounds for discipline against him, it is not
reasonably connected to Mayo's assault upon Sarvey in the elevator on September 18, 2014.
Shank's failures to report Mayo's earlier misconduct do not provide a basis for a jury to
reasonably conclude that Shank could have intervened to prevent that assault. These failures are
too remote in time and substance from the September 18, 2014 assault to support liability under
Smith and Ricks.
Finally, the evidence concerning Mayo's striking Sarvey and other inmates on the
buttocks raises the issue of whether this misconduct constituted an Eighth Amendment violation
separate and distinct from Mayo's assault in the elevator. If it does, Shank may face liability
under Smith and Ricks for failing to intervene to prevent or end it. The Court finds, however,
that the evidence relating to this incident is insufficient to support a separate Eighth Amendment
violation and, therefore, it cannot support a claim against Shank based upon his failure to
intervene.
A two-part analysis governs the determination of whether an incident of misconduct
towards an inmate rises to the level of an Eighth Amendment violation. The first element is
objective and is satisfied only if the incident in question is "objectively, sufficiently intolerable
and cruel, capable of causing harm .... " Ricks, 891 F.3d at 475. The second element is

26

subjective and 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, 319-320 (1986)). When evaluating the objective element, the Supreme
Court has warned that "not ... every malevolent touch by a prison guard gives rise to a federal
action." Hudson v. McMillian, 503 U.S. 1, 9 (1992). "Rather, in contrast to common tort law,
the Eighth Amendment shields inmates from only those actions 'repugnant to the conscience of
mankind."' Ricks, 891 F.3d at 475-476 (quoting Hudson, 503 U.S. at 10). "The objective
element 'is therefore contextual and responsive to 'contemporary standards of decency."' 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).
Having considered the record, pertinent caselaw, "the scope, place, and timing of the
offensive conduct," Ricks, 891 F.3d at 478, the Court concludes that Mayo's actions in hitting
Sarvey's buttocks with a ruler falls short of this objective standard. It has been routinely held
that isolated incidents of similar severity are insufficient to support a cognizable Eighth
Amendment claim. See, e.g., McIntyre v. Kellinger, 2018 WL 3429964, at *1 (3d Cir. July 16,
2018) (holding that incident in which defendant dragged his hands down plaintiff's buttocks,
gripped his buttocks, patted his thighs, and "squeezed [his] ass 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 opportunity to amend);
Boddie v. Schnieder, 105 F.3d 857,861 (2d Cir. 1997) (allegations that a female correction

27

officer squeezed plaintiffs penis, said "[Y]ou know [you're] a sexy black devil, I like you,"
bumped into plaintiff with her breasts, and pinned him against the wall "with her whole body
vagina against penis" were not sufficiently serious to amount to an Eighth Amendment
violation); Watson v. Wingard, 2018 WL 2108316 (W.D. Pa. Jan. 31, 2018) (allegations that
defendant gave plaintiff an "upper cut" to the groin with his forearm, "groped and massaged [his]
penis," and examined plaintiffs "butt ... like a doctor" did not amount to sexual abuse);
Washington v. Harris, 186 Fed. Appx. 865, 866 (11th Cir. 2006) (holding that inmate failed to
state 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. Appx. 656, 661 (6th 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. Appx. 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); Pantusco v. Sorrell, 2011 WL 2148392, at *7-8 (D.N.J. May 31, 2011)
(defendant did not violate Eighth Amendment by groping plaintiffs genitals on a single occasion
during a routine pat-search); Harris v. Zappan, 1999 WL 360203 (E.D. Pa. May 28, 1999)
(allegations of one instance of sexually explicit comments combined with fondling and rubbing
on thighs and breasts not sufficiently serious for an Eighth Amendment violation); Jones v.
Culinary Manager II, 30 F.Supp.2d 491,497 (E.D. Pa. 1998) (a single incident alleging that a
guard pinned plaintiff and ground his pelvis against plaintiffs buttocks while threatening sex not
sufficiently serious). Mayo's alleged behavior with a ruler, while certainly inappropriate and
unprofessional, was no more egregious than the allegations addressed in many of the cases cited

28

above. Nor does it 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 ongoing harassment and abuse, and exchanges of sexual activity for
special treatment or to avoid discipline"). As this Court has previously noted, "the standard for
sexual assault is not "zero tolerance for all minor sexualized touching in prison, such that all
such claims are objectively serious to a constitutional degree." Armstrong v. Diraimo, 2018 WL
6788524, at *4 (W.D. Pa. Dec.28.2018) (citing Ricks, 891 F.3d at 477). Mayo's inappropriate
behavior with the ruler does not in any way trivialize the mistreatment Sarvey allegedly
experienced. But such behavior does not amount to a cognizable constitutional violation.
Thus, under applicable legal standards, the record on this point is insufficient to permit a
reasonable jury to conclude that Shank violated Sarvey's constitutional rights by either failing to
intervene or report Mayo's assault or protect her from it. Therefore, the Court will enter
summary judgment in favor of Shank.
VII.

Conclusion
For the reasons stated above, the motion for summary judgment of Defendants John

Wetzel, Joanne Torma, Joyce Wilkes, and Brian Shank is granted in part and denied in part. The
motion is denied as to Plaintiff Sarvey's claim for injunctive relief and nominal damages against
John Wetzel, Joanne Torma and Lonnie Oliver (as successor to Torma). The motion is granted
in all other respects. An appropriate order will follow.

~Lµ

UNITED STATES MAGISTRATE JUDGE

DATED: January 16, 2019.
29