14-969-cv

United States Court of Appeals

For the Second Circuit
JAMES CRAWFORD and THADDEUS CORLEY,
Plaintiffs-Appellants,

v.
ANDREW CUOMO, as Governor of the State of New York, in his official capacity; BRIAN FISCHER,
Commissioner of Department of Corrections and Community Supervision, in his official capacity;
Superintendent WILLIAM P. BROWN, in his personal and official capacities; Superintendent WILLIAM
LARKIN, in his official capacity; Corrections Officer SIMON PRINDLE; and JOHN DOE
CORRECTIONS OFFICERS 1-8,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

BRIEF AND APPENDIX FOR PLAINTIFFS-APPELLANTS

LAW OFFICE OF
ZACHARY MARGULIS-OHNUMA
Attorney for Plaintiffs-Appellants
260 Madison Avenue, 17th Fl.
New York, NY 10016
(212) 685-0999
Sharlene Morris, Esq, on the brief

LAW OFFICES OF
ADAM D. PERLMUTTER, P.C.
Attorney for Plaintiffs-Appellants
260 Madison Avenue, 17th Fl.
New York, NY 10016
(646) 742-9800
Daniel A. McGuinness, Esq., on the brief

Table of Contents
Table of Authorities ....................................................................................... ii!
Jurisdiction ..................................................................................................... 1!
Issue Presented for Review ............................................................................ 2!
Preliminary Statement .................................................................................... 2!
Statement of the Case ..................................................................................... 3!
Statement of Facts .......................................................................................... 4!
A.! Officer Prindles Sexual Abuse of Plaintiff-Appellant Thaddeus
Corley on March 12, 2011 .............................................................. 4!
B.! Officer Prindles Sexual Abuse of Plaintiff-Appellant James
Crawford on March 16, 2011.......................................................... 5!
Standard of Review ........................................................................................ 8!
Summary of Argument................................................................................... 9!
Argument...................................................................................................... 10!
I.!

The District Court Erred in Dismissing the Complaint Because the

Allegations that Officer Prindle Sexually Abused Appellants are
Sufficient to State an Eighth Amendment Cause of Action upon
which Relief May be Granted........................................................... 10!

II.! The Second Circuit Should Revisit Its Decision in Boddie v.

Schnieder Because Any Sexual Abuse of an Inmate by a Corrections
Officer is Repugnant to the Conscience of Mankind........................ 17!
III.! The Remaining Causes of Action Should Be Reinstated ................. 25!
Conclusion.................................................................................................... 26!
Certificate of Compliance .............................................................................. 1!

TABLE OF AUTHORITIES
Cases!
Abreu v. C.O. Nicholls, 368 F.Appx 191 (2d Cir. 2010) ...................... 15, 16
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................... 8
Atkins v. Virginia, 536 U.S. 304 (2002) ....................................................... 21
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .......................................... 8
Bell v. Wolfish, 441 U.S. 520 (1979)............................................................ 23
Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999) ......................................... 18
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997)............................. 9, 12, 14
Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011) .................................. 22
Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) ...................... 8
Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013) ........................................... 23
Hudson v. McMillian, 503 U.S. 1 (1992) .............................................. passim
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)........................... 8
Rodriguez v. McClenning, 399 F.Supp.2d 228 (S.D.N.Y. 2005) ................. 18
Sweet v. Sheahan, 235 F.3d 80 (2d Cir. 2000) ............................................... 8
U.S. v. Walsh, 194 F.3d 37 (2d Cir. 1999) ....................................... 14, 15, 24
Washington v. Hively, 695 F.3d 641 (7th Cir. 2012) ....................... 22, 23, 24
Wilkins v. Gaddy, 559 U.S. 34 (2010).................................................... 11, 12
Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012) ...................................... 23
Statutes!
28 U.S.C. 1291 ............................................................................................ 1
28 U.S.C. 1295 ............................................................................................ 1
28 U.S.C. 1331 ............................................................................................ 1
42 U.S.C. 1983 ............................................................................................ 1
Ariz. Rev. Stat. 13-1419 (2013) ................................................................ 22
N.Y. Penal Law 130.05 (2014) ................................................................. 22
N.Y. Penal Law 130.60 (2014) ................................................................. 22
ii

Other Authorities!
Allen J. Beck et al., Sexual Victimization Reported by Adult Correctional
Authorities, 2009-11, U.S. Department of Justice Bureau of Justice
Statistics (Jan. 2014) ................................................................................. 20
Brenda V. Smith, The Prison Rape Elimination Act: Implementation and
Unresolved Issues, 3 Crim. L. Brief 10 (Spring 2008) ....................... 18, 19
Bureau of Justice Statistics, Prison Rape Elimination Act (Sexual Violence in
Correctional Facilities) ............................................................................ 19
Department of Corrections Directive #4028A, Sexual Abuse Prevention and
Intervention Staff-on-Inmate (August 17, 2011).................................... 22
Department of Corrections Directive #4910, Control of and Search for
Contraband (dated May 14, 2014)............................................................ 16
Gary Hunter, Vermont, the Last State to Pass Sex Abuse Laws, Prison Legal
News (March 2007) .................................................................................. 21
Kelly Riddell, Shades of Shawshank: Guards, staff committed half of all
prison sex assaults, The Washington Times, January 23, 2014 ... 19, 20, 24
No Escape: Male Rape in U.S. Prisons (Human Rights Watch 2001) .. 18, 19
Not Part of My Sentence: Violations of the Human Rights of Women in
Custody (Amnesty Intl March 1999) ....................................................... 21
Rules

Fed. R. Civ. P. 12(b)(6) .............................................................................. 1, 8

iii

JURISDICTION
The basis for subject matter jurisdiction is 28 U.S.C. 1331 because
the complaint alleged violations of Plaintiffs-Appellants civil rights under
42 U.S.C. 1983 and the Eighth Amendment.
The Court of Appeals has jurisdiction over the instant appeal pursuant
to 28 U.S.C. 1291 and 1295(a)(1), which grants this Court jurisdiction
over appeals from final decisions of the district courts.
This is an appeal from the March 5th, 2014, Order by the U.S. District
Judge Norman Mordue, of the Northern District of New York, which
granted Defendants motion to dismiss under Rule 12(b)(6) of the Federal
Rule of Civil Procedure. This was a final order.
This appeal is timely because the Notice of Appeal was filed on
March 31, 2014.

ISSUE PRESENTED FOR REVIEW

Does a corrections officers intentional fondling of an inmates
genitalia during a search constitute conduct repugnant to the conscience of
mankind and thereby violate the Eighth Amendment?

PRELIMINARY STATEMENT
The complaint in this case alleges that Simon Prindle, a corrections
officer at Eastern Correctional Facility in Naponach, New York, routinely,
repeatedly and intentionally groped and fondled the penises of inmates in his
custody during pat searches in the facility. Prindle threatened the inmates
when they complained. Nonetheless, the superintendent of the facility never
took any action despite receiving approximately twenty complaints about
Prindles predatory sexual abuse of inmates. The district court issued an
opinion authorizing Prindles abuse under the Eighth Amendment. But the
district court failed to recognize both the objective seriousness of Prindles
conductthe level of intrusion and emotional harm caused by forcible
sexual contactand the developing consensus that sexual abuse of inmates
can no longer be tolerated. Accordingly, the district court erred in finding
that the complaint failed to state a claim under the Eighth Amendment.

STATEMENT OF THE CASE

Plaintiffs-Appellants commenced the underlying lawsuit on April 12,
2013, seeking damages for sexual abuse during their incarceration by
Corrections Officer Simon Prindle. Appellants first cause of action sought
to recover damages from Prindle for his violation of their Eighth
Amendment Rights. Appellants asserted a second cause of action against
Superintendent William P. Brown in his official capacity for his deliberate
indifference to Prindles abuse. The third cause of action alleged deliberate
indifference by John Doe Corrections Officers # 1-8. Appellants fourth
cause of action sought to enjoin Prindle from working at Eastern
Correctional Facility, where Mr. Corley remains incarcerated. The fifth,
sixth, seventh, and eighth causes of action asserted pendent state law claims
against Prindle and John Doe Officers # 1-8.
On June 18th, 2013, Appellees moved to dismiss the complaint for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rule of Civil
Procedure. Appellees motion argued that the allegations of Prindle's
misconduct were insufficient to sustain an Eighth Amendment violation.
Appellants filed an opposition brief on July 18, 2013. Appellees filed their
reply on August 18, 2013.

By Order dated March 5th, 2014, the Court granted Appellees motion
to dismiss for failure to state a cause of action as to the Eighth Amendment
violations, and dismissed the New York State claims without prejudice for
lack of jurisdiction.
STATEMENT OF FACTS
This case began in March 2011 with two instances of sexual abuse
against prisoners by Simon Prindle, a corrections officer at Eastern
Correctional Facility, in Napanoch, New York. This sexual abuse occurred
after the officials responsible for Appellants welfare, including Appellee
William P. Brown, failed to take action against Prindle despite
approximately twenty grievances of similar abuse perpetrated by Prindle in
2010 and 2011. A-15.
A.

Officer Prindles Sexual Abuse of Plaintiff-Appellant

Thaddeus Corley on March 12, 2011

As stated in the complaint, the first instance of sexual abuse against

Appellants occurred on March 12, 2011, at Eastern Correctional Facility,
where Thaddeus Corley was incarcerated. A-9. Simon Prindle, a corrections
officer at the facility, interrupted a visit between Mr. Corley and his wife
and, according to Prindle, led Mr. Corley out of the visiting room to make
sure Mr. Corley did not have an erection. Id.
4

Corrections officer John Doe #1 overheard this comment and laughed.

Officer Prindle instructed Mr. Corley to spread his legs and place his hands
on the wall, and frisked Mr. Corley, during which he fondled and squeezed
Mr. Corley's penis. Id.
Mr. Corley responded to Prindles misconduct by pulling back from
the wall and asking Prindle what he was doing. A-10. Prindle threatened Mr.
Corley and told him to get back on the wall. Id. Corrections Officers John
Doe 2, John Doe 3, and John Doe 4 observed the incident but did nothing to
stop Officer Prindle. Id.
As a result of the incident, Mr. Corley now suffers from nightmares
and other psychiatric harm. Id. Mr. Corley filed an administrative grievance
against Prindle and exhausted his administrative remedies, but received no
relief. Id.
B.

Officer Prindles Sexual Abuse of Plaintiff-Appellant James

Crawford on March 16, 2011

Four days later, on March 16, 2011, Prindle sexually abused

Appellant Crawford in a similar manner. A-10. As Mr. Crawford exited the
mess hall, Prindle pulled him over to a doorway and told Mr. Crawford to
place his hands on the wall. Id. Prindle conducted a body search of Mr.

Crawford over his clothing and paused at his crotch area. Id. Prindle then
grabbed Mr. Crawford's penis, held it, and said, What's that? Id.
Mr. Crawford reacted by flinching and started to move off of the wall,
at which point Prindle grabbed Mr. Crawford tightly around his neck and
warned him to remain on the wall. A-11. When Mr. Crawford protested and
asked Prindle what he was doing, Prindle pinned Mr. Crawford against the
wall with his knee. Id. Prindle again grabbed Mr. Crawford's penis and
warned Mr. Crawford to stay on the fucking wall before I ram your head
into the concrete. Id. Prindle continued to molest Mr. Crawford and
taunted, that doesn't feel like a penis to me. Id.
Prindle then yanked Mr. Crawford's pants up past his waist. Id. When
Mr. Crawford again asked what Prindle was doing, Prindle again told Mr.
Crawford to remain on the wall, and threatened to put Mr. Crawford in
solitary confinement. Id. Mr. Crawford stated that Prindle was acting
illegally, but Prindle responded that he was conducting a search and that any
search he did was in accordance with the directives stop and frisk
policies, and that he would run [his] hands up the crack of [Mr.
Crawfords] ass if he wanted to. A-12.
Unknown Officer John Doe 5 approached and asked what the problem
was. Id. Prindle replied that Mr. Crawford was unreasonably complaining
6

about the search. Id. Prindle continued ordering Mr. Crawford to face the
fucking wall. Id. Three other unknown officers, John Doe 6, John Doe 7,
and John Doe 8, also observed Prindle abuse Mr. Crawford and did nothing
to intervene. A-13. Prindle eventually ordered Mr. Crawford to walk away
and not look back. Id.
The sexually abusive incident traumatized Mr. Crawford, who has had
to consult a mental health professional to treat his resulting emotional and
psychiatric distress. A-14. Mr. Crawford did not file an administrative
grievance, because he feared being placed in solitary confinement out of
retaliation. A-13.
On subsequent occasions, Prindle verbally humiliated Mr. Crawford
by referencing the incident in front of other inmates. A-14. Prindle sought to
demean Crawford and others by telling them that he had seen their penises
and had seen a little boy like you on the internet. Id.

STANDARD OF REVIEW
A district courts order granting a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure is reviewed de novo. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). When
conducting a de novo review of the lower courts order to dismiss, the
factual allegations in the complaint are accepted as true, and all reasonable
inferences are drawn in the plaintiff's favor. Id. Dismissal is inappropriate
unless it appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him or her to relief. Sweet v. Sheahan, 235 F.3d 80, 83
(2d Cir. 2000). The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the claims.
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005).
To survive a motion to dismiss under Rule 12(b)(6), the complaint
must plead enough facts to state a claim to relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed
factual allegations are not required. Id. at 555. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

SUMMARY OF ARGUMENT
The district court erred in granting Appellees motion to dismiss the
complaint for failure to state a cause of action. It is settled law that the
Eighth Amendment to the Constitution protects prisoners from wanton and
unnecessary force as a form of cruel and unusual punishment. Hudson v.
McMillian, 503 U.S. 1, 7 (1992). The Second Circuit has explicitly
recognized that sexual abuse committed by a corrections officer against an
inmate may violate this constitutional protection. See Boddie v. Schnieder,
105 F.3d 857, 860-861 (2d Cir. 1997).
As discussed in Part I below, the Second Circuits decision in Boddie
v. Schnieder, which affirmed dismissal of the plaintiffs allegations of sexual
abuse, does not control the outcome here because it is distinguishable from
this case and was read too narrowly by the district court. Moreover, the
allegations in this case are sufficient under subsequent Second Circuit
decisions that clarify the degree of force required to establish an Eighth
Amendment violation.
In any event, the holding of Boddie no longer reflects contemporary
standards of decency that have evolved in the 17 years since that case was
decided. Part II explores this evolution and calls on the court to revisit its
decision in Boddie and issue a decision in this case that is consistent with the
9

current norm that deems all sexual fondling of an inmate by a guard to be

abuse that is repugnant to the conscience of mankind. Hudson v.
McMillian, 503 U.S. at 9-10 ([t]he Eighth Amendments prohibition of
cruel and unusual punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind (internal quotation
marks omitted)).
Finally, assuming the allegations in the complaint sufficiently state an
Eighth Amendment violation against Prindle, as alleged in the first cause of
action of the complaint, this Court should reverse the district courts order
dismissing Appellants remaining claims, which were dismissed solely
because they rely on the existence of the underlying federal Eighth
Amendment violation.
ARGUMENT
I.

The District Court Erred in Dismissing the Complaint Because

the Allegations that Officer Prindle Sexually Abused Appellants
are Sufficient to State an Eighth Amendment Cause of Action
upon which Relief May be Granted
When a prison official uses force against an inmate, that official

violates the Eighth Amendment to the Constitution when two requirements

are satisfied: first, the alleged conduct must be objectively harmful

10

enough to establish a constitutional violation; and second, the prison

official must possess a sufficiently culpable state of mind. Hudson v.
McMillian, 503 U.S. 1, 8 (1992). Here, Appellees motion to dismiss
Appellants Eighth Amendment claim did not challenge the sufficiency of
the complaint with respect to the subjective element, and the district court
did not evaluate the sufficiency of the complaint based on that element; as a
result, only the objective element is discussed here.
In Hudson v. McMillian, the seminal Supreme Court opinion on
Eighth Amendment use-of-force claims, the Court clarified the appropriate
inquiry in a claim alleging that a prison official used force against a prison
inmate maliciously and sadistically. Hudson v. McMillian, 503 U.S. at 9.
Instead of focusing on the severity of the injury, the Court announced, the
focus is on the severity of the use of force; this is the appropriate test
because, otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman. Hudson v. McMillian, 503
U.S. at 9; see also Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (The Court [in
Hudson] aimed to shift the core judicial inquiry from the extent of the
injury to the nature of the force specifically, whether it was nontrivial and
was appliedmaliciously and sadistically to cause harm).

11

Although absence of serious injury may be relevant to the claim, it

does not dictate the result. See Hudson v. McMillian, 503 U.S. at 7
(reversing dismissal of complaint because the blows directed at [plaintiff],
which caused [the injury] were not de minimis); Wilkins v. Gaddy, 559 U.S.
at 37-38 (An inmatedoes not lose his ability to pursue an excessive force
claim merely because he has the good fortune to escape without serious
injury). So long as the use of force is more than de minimis (or,
alternatively, repugnant to the conscience of mankind as discussed in Part
II), the objective prong of the Eighth Amendment test is met. Hudson v.
McMillian, 503 U.S. at 9-10.
There is no dispute that a push or shove that causes no discernible
injury almost certainly fails to state a valid excessive force claim. Wilkins v.
Gaddy, 559 U.S. at 38. Yet the Second Circuit has also recognized that
there can be no doubt that severe or repetitive sexual abuse of an inmate by
a prison officer can sufficiently state an Eighth Amendment claim. Boddie
v. Schnieder, 105 F.3d 857, 861 (1997). Conduct falling between these two
extremes is less clear. In Boddie v. Schnieder, a male inmate alleged that a
female corrections officer made a pass at him, squeezed his hand, touched
his penis without force, called him a sexy black devil, and bumped into
him with her whole body. Id. at 859-860. The Court held that the incidents
12

were not sufficiently serious to state a harm of constitutional proportions. Id.

at 861.
Under this analysis, the district court erred in dismissing the
complaint in this case. Relying almost entirely on Boddie and numerous
district court cases, the district court mistakenly concluded that the
allegations stated in the complaint do not state a plausible claim for relief.1
A-30. These cases all read Boddie too narrowly here, the district court
required the sexual abuse to be excessive in duration, under clothing, with
one of the guards sexual organs, or to cause physical injury, penetration, or
pain. A-29-30.
But even if they dont meet these criteria, the allegations of force here
are more egregious than those alleged in Boddie, and amount to more than a
push or shove by a corrections officer. Unlike in Boddie, here, Prindle
stopped both Mr. Corley and Mr. Crawford for a search and proceeded to
run his hands over their genitalia, holding their penises and threatening them
when they flinched; in Mr. Crawfords case, Prindle further grabbed his neck
1

The lower court here cites for support numerous district court cases in
which the complaints alleging Eighth Amendment violations based on
sexual abuse by an officer were dismissed. Each of those opinions, however,
cites Boddie (and other similar district court opinions) exclusively to support
its own decision, rendering those citations superfluous and unpersuasive. See
A-27 A-30. If anything, the litany of cases cited demonstrates the
pervasiveness of sexual abuse allegations against corrections officers in the
prison system.
13

area and pinned Mr. Crawford against the wall, pushing his knee into Mr.
Crawfords back, while he continued to rub his hands on Mr. Crawfords
genitals and thighs; Prindle then tightly pulled up Mr. Crawfords pants and,
once again, continued to squeeze and fondle his penis. A-9 A-13, 16-60.
Each incident alleged cannot be characterized as a de minimis use of force;
these incidents were egregious, forceful and more intrusive than the alleged
acts by the corrections officer in Boddie who squeezed an inmates hand,
purposely brushed up against his penis, and bumped into him with her body.
See Boddie v. Schnieder, 105 F.3d at 859-860.
Moreover, Second Circuit cases decided since Boddie are more
instructive on this Circuits approach to the Eighth Amendment de minimis
standard. Two years after Boddie, the Second Circuit decided U.S. v. Walsh,
194 F.3d 37 (2d Cir. 1999) (applying Hudson Eighth Amendment test to
Fourteenth Amendment excessive force claim). In Walsh, this court upheld
the criminal conviction of a male corrections officer who stepped on a male
inmates penis on three different occasions, causing the inmate to scream
loudly in pain; this Court held that the corrections officer used more than de
minimis force against the inmate. U.S. v. Walsh, 194 F.3d at 42, 50 (finding
alternative Eighth Amendment violation because the conduct was
unequivocally contrary to contemporary standards of decency and repugnant
14

to the conscience of mankind). Although Prindle did not step on Mr.

Crawford or Mr. Corleys penis, his actions described in the preceding
paragraph caused extensive psychological injury. When both Appellants
flinched or moved away from Prindle to avoid being molested, Prindle used
physical and verbal force in an effort to keep them against the wall and
continue sexually abusing them. A-9 A-14 16-75. Just as in Walsh, the
force used here was more than de minimis. U.S. v. Walsh, 194 F.3d at 50.
More than ten years after Walsh, the Second Circuit issued a
Summary Order that also applied the de minimis exception to less force than
was used here. See Abreu v. C.O. Nicholls, 368 F.Appx 191, 193 (2d Cir.
2010) (Summary Order). In that case, the corrections officer repeatedly
pressed a rubber-headed hammer against the head of an inmate, causing
the inmates head to go half way backwards. Id. at 193. Reversing the
district courts order granting summary judgment to the officer, this Court
found that merely pressing the hammer against the inmates head was more
than de minimis. Id. at 192. The forced used was not just a push or a shove,
but conduct that was not what one might expect in a crowded prison
corridora calculated effort to apply a moderate amount of force in a way
that threatened the use of significantly greater force. Id. at 194.

15

Here, the force used was more excessive than that in Abreu and
violated the prison systems own rules. New York State Department of
Corrections Directive # 4910 specifically instructs that staff must not lift or
otherwise manipulate the genitalia during a pat frisk. Department of
Corrections Directive #4910, Control of and Search for Contraband at 3
(May 14, 2014).2 Here, the complaint unambiguously alleges that the
defendant violated this procedure, conducting a pat frisk as a pretext to
roam, grope, and fondle the victims genitalia and threatening greater force
when the plaintiffs resisted. This elevated use of force violates the Eighth
Amendment. Like the use of the hammer in Abreu, fondling an inmates
genitalia is not expected conduct in prison, is totally removed from any
proper penal purpose and [was done] solely for the purpose of humiliating
an inmate. Abreu v. C.O. Nicholls, 368 F.Appx at 194. In this context,
forcible sexual contact violates contemporary standards of decency and is
not permitted by the Eighth Amendment.
In this case, the district court granted Appellees motion to dismiss on
the basis that the allegations in the complaint are not more severe than those
made in Boddie. As explained above, however, the opposite is true: Prindles

Plaintiffs counsel received a copy of Directive #4910 by e-mail from the

New York State Corrections officers and Police Benevolent Association,
Inc., on June 25, 2014. A copy remains on file and is available upon request.
16

inappropriate use of force in this case is more severe than that alleged in
Boddie. Furthermore, subsequent Second Circuit decisions have further
clarified what type of force can be dismissed as de minimis for purposes of
the Eighth Amendment. The Walsh and Abreu decisions demonstrate that the
allegations set forth in this case, if true, state a cause of action upon with
relief may be granted because they permit a reasonable inference that Prindle
acted maliciously and sadistically in violation of the Eighth Amendment.
II.

The Second Circuit Should Revisit Its Decision in Boddie v.

Schnieder Because Any Sexual Abuse of an Inmate by a
Corrections Officer is Repugnant to the Conscience of Mankind
In Hudson v. McMillian, the Supreme Court explicitly left open an

alternative basis for finding an Eighth Amendment violation: where the use
of force is de minimis, a constitutional violation still lies if the use of force is
repugnant to the conscience of mankind. Hudson v. McMillian, 503 U.S.
at 9-10 (The Eighth Amendment's prohibition of cruel and unusual
punishments necessarily excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind) (internal quotations omitted). The
language of the Eighth Amendments protection against cruel and unusual
punishment requires a contextual reading of its protection that is responsive
to contemporary standards of decency. Id. at 8, citing Estelle v. Gamble,
17

429 U.S. 97, 103 (1976). It is wholly appropriate to consider the public
attitude toward a given sanction to identify the contemporary standards of
decency that govern Eighth Amendment claims. Rodriguez v. McClenning,
399 F.Supp.2d 228, 236 (S.D.N.Y. 2005), citing Rhodes v. Chapman, 452
U.S. 337, 346 (1981) (internal quotations omitted).
Regardless of the severity of the victims injury, a corrections
officers malicious and sadistic use of force for the purpose of causing harm
always violates contemporary standards of decency. Hudson v. McMillian,
503 U.S. at 9; Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)
([C]ertain actions, including the malicious use of force to cause harm,
constitute Eighth Amendment violations per se.).
Not long ago, prison walls not only kept inmates inside of the
complex; they also kept the public eye outside of it, preventing awareness of
the realities of prison life. In the 17 years since this Court decided Boddie v.
Schnieder, a national consensus has emerged that appreciates both the
prevalence and the devastating effects of sexual abuse in U.S. prisons.
In 1998, one year after Boddie was decided, the Custodial Sexual
Abuse Act of 1998 was introduced in Congress but failed to garner enough
support even for consideration. See Brenda V. Smith, The Prison Rape
Elimination Act: Implementation and Unresolved Issues, 3 Crim. L. Brief
18

10, 10 (Spring 2008) (hereinafter Smith). In 2001, Human Rights Watch

published a report which compiled the stories of over 200 abused prisoners
throughout 34 states, surveyed state facilities, and made numerous
recommendations to state and federal authorities. See No Escape: Male Rape
in U.S. Prisons (Human Rights Watch 2001), available at www.hrw.org/
reports/2001/prison/report.html (hereinafter No Escape). The Report
gained national attention and led to congressional action. See Smith at 10. In
September 2003, Congress unanimously passed the Prison Rape Elimination
Act (PREA), which sought to prevent, reduce, and sanction sexual
violence against incarcerated individuals. See Bureau of Justice Statistics,
Prison Rape Elimination Act (Sexual Violence in Correctional Facilities),
available at http://www.bjs.gov/index.cfm?ty=tp&tid=20 (collecting
statistical materials on sexual violence in prison). The passage of PREA
marked a turning point in American consciousness of the issue.
Even in 2001, no conclusive national data exist[ed] regarding the
prevalence of prisoner-on-prisoner rape and other sexual abuse. See No
Escape, Summary and Recommendations, available at http://www.hrw.org/
reports/2001/prison/report1.html#_1_5. Earlier this year, a former member
of the National Rape Elimination Commission, Jamie Fellner, commented to
The Washington Times that [a]n inmate is just as threatened by staff
19

asby other inmates this wasnt the prevalent thought just a few years
ago. Kelly Riddell, Shades of Shawshank: Guards, staff committed half of
all prison sex assaults, The Washington Times, January 23, 2014
(hereinafter Riddell). Just five months ago, the Department of Justice
reported that, from 2009 to 2011, half of all sexual victimization reports
filed by inmates in correctional facilities in the United States involve staff
sexual misconduct or sexual harassment directed toward inmates. Allen J.
Beck et al., Sexual Victimization Reported by Adult Correctional
Authorities, 2009-11, U.S. Department of Justice Bureau of Justice Statistics
(Jan. 2014), available at http://www.bjs.gov/content/pub/pdf/
svraca0911.pdf. This statistic is even more disconcerting since the surveyed
reports likely represent only a fraction of sexual abuse incidents that occur in
correctional facilities every day.3
American societys growing intolerance of sexual abuse by guards is
reflected in accumulating changes in state laws prohibiting sexual assault by
corrections officers. In 1998, one year after Boddie was decided, 36 states

Chris Daley, deputy direction of the human rights organization Just

Detention International, an organization aimed at stopping sexual abuse in
prisons, stated to the Washington Times that [t]he statisticstrack reports
that have been formally documented by U.S. correctional institutions. In
order to be recorded, a victim must come forward and be identified without
fear of retaliation, a significant hurdle for most victims Its a big deal for
an inmate to file a report, especially if its against staff. See Riddell.
20

prohibited sexual relations between staff and inmates. See Not Part of My
Sentence: Violations of the Human Rights of Women in Custody at 8
(Amnesty Intl March 1999).4 On May 23, 2006, eight years later, Vermont
became the fiftieth and final state to outlaw sex between detention facility
employees and prisoners. Gary Hunter, Vermont, the Last State to Pass Sex
Abuse Laws, Prison Legal News, 32 (March 2007).
This steady movement prohibiting all sexual abuse in prison is just the
sort of normative change that informs Eighth Amendment jurisprudence. As
the Supreme Court noted in Atkins v. Virginia, 536 U.S. 304, 315 (2002), a
national consensus can be found by surveying changes in state laws, but [i]t
is not so much the number of these States that is significant, but the
consistency of the direction of change. State and federal law now typically
prohibits any sexual contact between corrections officers and inmates
regardless of whether force is involved. This development evidences our
collective abhorrence for sexual relations between an officer and inmate. We
submit that it effectively eliminates the federal courts need to inquire about
how much force is used in sex abuse cases. See, e.g., N.Y. Penal Law

This publication is available at http://www.amnesty.org/en/library/asset/

AMR51/019/1999/en/7588269a-e33d-11dd-808b-bfd8d459a3de/
amr510191999en.pdf. The states lacking legislation were Alabama,
Kentucky, Massachusetts, Minnesota, Nebraska, Oregon, Pennsylvania,
Utah, Vermont, Washington, West Virginia, and Wisconsin. See id. at 8.
21

130.05, 130.60 (2014) (a corrections officer is guilty of sexual abuse when

he or she subjects to sexual contact a person that he knows or reasonably
should know is committed to the department of corrections); see also Cash
v. County of Erie, 654 F.3d 324 (2d Cir. 2011) ([New York] state law
draws no distinction between assaultive and non-assaultive sexual activity in
the prison context; it tolerates neither.); See also, e.g., Ariz. Rev. Stat. 131419 (2013) ( [a] person commits unlawful sexual conduct by intentionally
or knowingly engaging in any act of a sexual nature with an offender who is
in the custody of the state department of corrections). New York State
Department of Corrections policy specifies, staff-on-inmate sexual conduct
is sexual abuse and is not to be tolerated. Department of Corrections
Directive #4028A, Sexual Abuse Prevention and Intervention Staff-onInmate, at 1 (August 17, 2011), available at http://www.doccs.ny.gov/
Directives/4028A.pdf (emphasis added).
Appellate decisions increasingly do not require the courts to inquire as
to the amount of force used in prison sex abuse cases. As Judge Richard
Posner explained in a recent Seventh Circuit decision, an unwanted
touching of a persons private parts, intended to humiliate the victim or
gratify the assailants sexual desires, can violate a prisoners constitutional
rights whether or not the force exerted by the assailant is significant.
22

Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012). In that case, the
lower court had granted summary judgment to a corrections officer who,
while patting down an inmate, spent five to seven seconds gratuitously
fondling the plaintiff's testicles and penis through the plaintiff's clothing and
then while strip searching him fondled his nude testicles for two or three
seconds[.] Id. at 642. The Seventh Circuit reversed the lower court,
permitting the inmates cause of action to move forward. Id. at 642-43.
While the motion to dismiss in this case was pending, this Court cited with
approval the Seventh Circuits classification of prison sex abuse as
repugnant to the conscience of mankind. See Hogan v. Fischer, 738 F.3d
509, 516 (2d Cir. 2013) (holding that spraying an inmate with a liquid
combination of vinegar, machine oil, and feces is repugnant to the
conscience of mankind).
The Eighth Circuit has similarly held that allegations of sexual abuse
are sufficient to state a violation of the Eighth Amendment. See Wood v.
Beauclair, 692 F.3d 1041, 1050 (9th Cir. 2012) (reversing summary
judgment in favor of an officer who allegedly reached into an inmates
shorts and stroked his penis).5 The reasoning of these cases is consistent: a

Indeed, the Supreme Court has expressly condemned bodily searches of

inmates conducted in an abusive fashion. Bell v. Wolfish, 441 U.S. 520, 560
(1979) (We do not underestimate the degree to which these searches may
23

growing consensus has emerged that, [s]exual offenses forcible or not are
unlikely to cause so little harm as to be adjudged de minimis, that is, too
trivial to justify the provision of a legal remedy. They tend rather to cause
significant distress and often lasting psychological harm. Washington v.
Hively, 695 F.3d at 643.
Over the last two decades, we have come to recognize that a culture of
sexual abuse exists in correctional facilities and is perpetrated not only by
convicts themselves, but by the officials responsible for the health and safety
of the inmates. That culture was alive and well at Eastern Correctional
Facility where a score of inmates documented that Prindle routinely abused
them without consequence.6 Sexual abuse perpetrated by a corrections
officer against an inmate is beyond what society expects its criminals to
endure as punishment for their misdeeds. U.S. v. Walsh, 194 F.3d at 49
(noting that in Boddie the harassment was purely unwarranted and served

invade the personal privacy of inmates. Nor do we doubtthat on occasion

a security guard may conduct the search in an abusive fashion. Such an
abuse cannot be condoned.).
6
Permitting this litigation to go forward would be an important step in
eliminating the existing impunity for sexual abuse at Eastern, while
providing due process safeguards to the defendant. As Jamie Fellner opined
in the Washington Times earlier this year, successful litigation on behalf of
victims is an important component in the effort to stop prison sexual abuse.
See Riddell.
24

no penological purpose [which] weighed in favor of the cause of action).

This case should be permitted to proceed to discovery and trial.
III.

The Remaining Causes of Action Should Be Reinstated

The district court dismissed the first cause of action on the basis that

the allegations in the complaint were insufficient to state an Eighth

Amendment violation by defendant Prindle. As a result, the second, third,
and fourth causes of action, all of which relied on the first cause of action as
an element of the alleged violation, were also dismissed.7 Since all federal
claims were dismissed, the court went on to dismiss the supplemental state
claims.
In the event this Court reverses the lower courts order dismissing the
first cause of action, and concludes that the allegations in the complaint state
a claim upon which relief may be granted, it should also reverse the
dismissal of the remaining causes of action, as the lower court has provided
no alternative basis for their dismissal.

The second cause of action alleges supervisory liability by Superintendent

William P. Brown; the third cause of action alleges deliberate indifference
by John Doe defendants; and the fourth cause of action seeks injunctive
relief against Prindle. A-15 A-16.
25

CONCLUSION
For the reasons stated above, the judgment of the district court should
be REVERSED.
Dated:

New York, New York

July 11,2014

Respectfully submitted,
Law Office of Zachary Margulis-Ohnuma

BY:~~/
Zacha
arguhs-Ohnuma
260 Madison Avenue, 17th FI.
New York, NY 10016
(212) 685-0999
. Perlmutter, P.C.

By:-t-_--"-....;;..z._ _----'"--_
Ada
260 adison Avenue, 22nd FI.
New York, NY 10016
(212) 455-0300
Attorneys for Appellants James Crawford & Thaddeus Corley

26

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the requirements of Fed.
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