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14-969-cv
United States Court of Appeals
for the Second Circuit
JAMES CRAWFORD AND THADDEUS CORLEY,
Plaintiffs-Appellants,
-againstANDREW CUOMO, AS GOVERNOR OF THE STATE OF NEW YORK, IN HIS OFFICIAL
CAPACITY, BRIAN FISCHER, COMMISSIONER OF DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, WILLIAM P. BROWN, IN HIS PERSONAL AND OFFICIAL
CAPACITIES, SUPERINTENDENT WILLIAM LARKIN, IN HIS OFFICIAL CAPACITY,
CORRECTION OFFICER SIMON PRINDLE,
Defendants-Appellees,
JOHN DOE CORRECTIONS OFFICERS 1 -8,
Defendants.
On Appeal from the United States District Court
for the Northern District of New York
BRIEF FOR DEFENDANTS-APPELLEES
BARBARA D. UNDERWOOD
Solicitor General
ANDREW AYERS
FRANK BRADY
Assistant Solicitors General
of Counsel

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants-Appellees
The Capitol
Albany, New York 12224
(518) 486-4502
Dated: October 14, 2014

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PAGE

TABLE OF AUTHORITIES ................................................................................ ii

PRELIMINARY STATEMENT ............................................................................1
ISSUES PRESENTED .........................................................................................3
STATEMENT OF THE CASE .............................................................................3
A. The Complaint .......................................................................................3
1. Thaddeus Corleys Allegations ....................................................4
2. James Crawfords Allegations .....................................................5
B.

The District Courts Decision On Defendants Motion

To Dismiss .........................................................................................9

SUMMARY OF THE ARGUMENT .................................................................. 10

STANDARD OF REVIEW AND RULE 12(b)(6) STANDARD ........................ 12
ARGUMENT
POINT I
THE COMPLAINT FAILS TO STATE AN EIGHTH
AMENDMENT CLAIM ........................................................................... 13
POINT II
ALTERNATIVELY, DEFENDANTS PRINDLE AND BROWN
ARE ENTITLED TO QUALIFIED IMMUNITY .................................... 25
CONCLUSION

............................................................................................... 28

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TABLE OF AUTHORITIES
CASES

PAGE

Abreu v. C.O. Nicholls,

368 F. Appx 191 (2d Cir. 2010) .......................................................... 18,19
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................. 12
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................. 12
Boddie v. Schneider,
105 F.3d 857 (2d Cir. 1997) .............................................................. passim
Cash v. County of Erie,
654 F.3d 324 (2d Cir. 2011) ..................................................................... 13
Cherry v. Frank,
No. 30-C-129-C, 2003 U.S. Dist. LEXIS 26495
(W.D. Wisc. Dec. 4, 2003)......................................................................... 20
Davis v. Castleberry,
364 F. Supp. 2d 319 (W.D.N.Y. 2005) ...................................... 17-18,20,27
DiStiso v. Cook,
691 F.3d 226 (2d Cir. 2012) ..................................................................... 25
Farmer v. Brennan,
511 U.S. 825 (1994) .................................................................................. 14
Harry v. Suarez,
No. 10-cv-6756, 2012 U.S. Dist. LEXIS 79551
(S.D.N.Y. June 5, 2012) ........................................................................... 17
Harry v. Suarez,
No. 10-cv-6756, 2012 U.S. Dist. LEXIS 93385
(S.D.N.Y. July 3, 2012) .......................................................................... 23n
Hill v. Crum,
727 F.3d 312 (4th Cir. 2013) .................................................................... 20
ii

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TABLE OF AUTHORITIES (contd)

CASES (contd)

PAGE

Hogan v. Fischer,
738 F.3d 509 (2d Cir. 2013) ........................................................ 3,14,15,20
Holloway v. Dept of Corr.,
No. 11-cv-1290, 2013 U.S. Dist. LEXIS 128647
(D. Conn. Sept. 10, 2013) .................................................................... 17,26
Hudson v. McMillian,
503 U.S. 1 (1992) ......................................................................... 2,13,14,15
James v. Coughlin,
13 F. Supp. 2d 403 (W.D.N.Y. 1998) ..................................................... 18n
J.S. v. TKach,
714 F.3d 99 (2d Cir. 2013) ....................................................................... 12
Law v. Cullen,
613 F. Supp. 259 (S.D.N.Y. 1985) ........................................................... 25
Messerschmidt v. Millender,
132 F. Ct. 1235 (2012).............................................................................. 25
Moncrieffe v. Witbeck,
No. 97-cv-253, 2000 U.S. Dist. LEXIS 9425
(N.D.N.Y. June 29, 2000).................................................................... 18,27
Montero v. Crusie,
153 F. Supp. 2d 368 (S.D.N.Y. 2001) ................................................. 18,27
Morales v. Mackalm,
278 F.3d 126 (2d Cir. 2002) ..................................................................... 13
Morrison v. Cortwright,
397 F. Supp. 2d 424 (W.D.N.Y. 2005) ................................................ 17,26
Nuriddin v. Estrella,
No. 11-cv-01448, 2014 U.S. Dist. LEXIS 23731
(E.D. Cal. Feb. 24, 2014) .......................................................................... 20
iii

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TABLE OF AUTHORITIES (contd)

CASES (contd)

PAGE

Richardson v. Selsky,
5 F.3d 616 (2d Cir. 1993) .................................................................. 11,127
Rodriguez v. McClenning,
399 F. Supp. 2d 228 (N.D.N.Y. 2005) .................................................... 23n
Samuels v. Strange,
No. 08-cv-1872, 2012 U.S. Dist. LEXIS 143935
(D. Conn. October 4, 2012) .................................................................... 23n
Southerland v. City of New York,
680 F.3d 127 (2d Cir. 2011) ..................................................................... 26
United States v. Walsh,
194 F.3d 37 (2d Cir. 1999) .................................................................. 18,19
Washington v. Hively,
695 F.3d 641 (7th Cir. 2012) ................................................................ 20-21
Whitley v. Albers,
475 U.S. 312 (1986) .......................................................................... 3,11,21
Williams v. Keane,
No. 95-cv-0379, 1997 U.S. Dist. LEXIS 12665
(S.D.N.Y. Aug. 25, 1997) ........................................................................ 18n
Wilson v. Layne,
526 U.S. 603 (1999) .................................................................................. 27
UNITED STATES CONSTITUTION
Eighth Amendment .......................................................................... passim

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TABLE OF AUTHORITIES (contd)

FEDERAL STATUTES

PAGE

42 U.S.C.
1983 ........................................................................................................ 13
15601, et seq........................................................................................... 22
FEDERAL RULES AND REGULATIONS
Federal Rules of Civil Procedure
Rule 12(b)(6) .......................................................................................... 9,12
NEW YORK STATUTES
1965 N.Y. Laws 1030, 130.55 ......................................................................... 23
1996 N.Y. Laws 266, 1 .................................................................................... 23
Penal Law
130.00(3) ................................................................................................ 24
130.05 ..................................................................................................... 24
130.55 ..................................................................................................... 23
130.60(1) ................................................................................................ 24

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PRELIMINARY STATEMENT
The issue in this civil rights case is whether the district court
properly dismissed the complaint of plaintiffs James Crawford and
Thaddeus Corley, both New York State prisoners. Each plaintiff alleged
that, on a single occasion, defendant Correction Officer Simon Prindle
violated his Eighth Amendment right to be free from cruel and unusual
punishment by inappropriately grabbing and fondling his penis and
crotch area during a routine pat frisk; the complaint alleges that
defendant Superintendent William P. Brown is responsible for failing to
prevent this conduct. The plaintiffs sought damages from Prindle and
Brown, and plaintiff Corley sought injunctive relief against all named
defendants.
The United States District Court for the Northern District of New
York (Mordue, J.), relying on this Courts holding in Boddie v.
Schneider, 105 F.3d 857 (2d Cir. 1997), granted defendants motion to
dismiss the claims. The court found that the single, brief incident of
touching alleged by each plaintiff was not sufficiently serious to support
an Eighth Amendment claim. For this same reason, the court dismissed
the supervisory-liability claim against defendant Brown, dismissed

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plaintiff Corleys request for injunctive relief, and declined to exercise

supplemental jurisdiction over plaintiffs state law claims.
On appeal, plaintiffs argue that the district court misapplied
Boddie and, alternatively, that Boddie no longer reflects contemporary
standards of decency. Plaintiffs ask this Court to revisit Boddie and
hold that all allegations of sexual fondling of an inmate by a guard
state a cause of action under the Eighth Amendment because such
conduct is repugnant to the conscience of mankind. Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992). (Br. at 9-10.)
The Court should reject both arguments. The inappropriate
touching plaintiffs allege is no more objectively severe than the
allegations that Boddie rejected. Any inappropriate touching by a
corrections officer is, in Boddies words, despicable, and may lead to
the availability of tort actions or other legal remedies. 105 F.3d at 86061. But there is no need for this Court to revisit Boddies holding that
not every allegation of sexual abuse will give rise to an Eighth
Amendment claim, 105 F.3d at 860-61, just as not every use of physical
force against a prisoner gives rise to such a claim, see Hudson, 503 U.S.
at 9. Boddies holding rests on settled precedent that only actions
involving the unnecessary and wanton infliction of pain in a prison
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environment constitute the cruel and unusual punishment prohibited

by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986).
The allegations that C.O. Prindle squeezed, grabbed or fondled
plaintiffs during a clothed pat frisk are distinctly different from the type
of conduct deemed unconstitutional because it is repugnant to the
conscience of mankind. Cf. Hogan v. Fischer, 738 F.3d 509, 516 (2d Cir.
2013).
ISSUES PRESENTED
1.

Whether the complaint was properly dismissed because

plaintiffs allegations are not objectively, sufficiently serious to state an

Eighth Amendment claim.
2.

Alternatively, whether dismissal was required because

defendants Prindle and Brown are entitled to qualified immunity.

STATEMENT OF THE CASE
A.

The Complaint
Plaintiffs Corley and Crawford commenced this civil rights action

in the Northern District of New York in April 2013. (A2.) 1 At the time of

Numbers preceded by A refer to the joint appendix.

3

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the events alleged in the complaint, March 2011, plaintiffs were

inmates at Eastern Correctional Facility. Each alleged that defendant
Officer Prindle, during a pat frisk, fondled the plaintiffs crotch area
and touched or grabbed his penis through his clothes. Each plaintiff
claimed that the incident he alleged violated his right to be free from
cruel and unusual punishment. They also asserted state-law claims and
a supervisory-liability claim against defendant Superintendent Brown.
Plaintiff Corley requested injunctive relief and damages. Plaintiff
Crawford, who was released on parole before the complaint was filed,
requested only damages.
1. Thaddeus Corleys Allegations
The complaint alleges that, on March 12, 2011, while Thaddeus
Corley was engaged in a visit with his wife, Officer Prindle ordered him
to stop the visit and escorted him out of the visiting room. Officer
Prindle informed Corley that he was going to make sure Mr. Corley did
not have an erection. (A9.) An officer identified as John Doe Officer
#1 laughed when he heard Officer Prindle mention an erection. (A9.)
Officer Prindle ordered Corley to put his hands against the wall
held high with his feet spread apart, and then he pat frisked
Mr. Corley. (A9.) During the pat frisk, Officer Prindle paused to fondle
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and squeeze Mr. Corleys penis. (A9.) In response, Corley jumped off
the wall and asked Officer Prindle what he was doing. (A10.) Prindle
responded by threatening Mr. Corley and telling him to get back on the
wall. (A10.) Corley alleged that [a]s a result of the abuse, he has had
nightmares and other psychiatric problems. (A10.)
2. James Crawfords Allegations
Plaintiff James Crawford alleged that on March 16, 2011, as he
was leaving the dining mess hall around the time of the noon meal,
Officer Prindle stopped him near the school building doorway and told
him to place his hands on the wall. Prindle then began to search
Crawford, running his hands down Mr. Crawfords chest area and
paus[ing] around Crawfords crotch. (A10.) Officer Prindle then
grabbed Crawfords penis, held it, and asked whats that? (A10.)
When Crawford flinched away from Officer Prindle, Prindle
grabbed Crawford tightly around his neck and warned him to remain
against the wall. Crawford responded, Thats my penis, man. What the
hell are you doing? (A11.) Officer Prindle then tightened his grip
around the hood of the sweatshirt Mr. Crawford was wearing and
pinned Mr. Crawford to the wall with Officer Prindles knee in
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Mr. Crawfords back area. (A11.) Prindle then reached around

Mr. Crawford and grabbed Mr. Crawfords crotch area. (A11.)
According to the complaint, [d]uring this time, Officer Prindle
squeezed and roamed with his hands around Mr. Crawfords penis and
down his thigh, stating, stay on the fucking wall before I ram your head
into the concrete. (A11.) When Crawford flinched again, Officer
Prindle stated, That doesn't feel like a penis to me, and he continued
to roam with his hands around Mr. Crawfords crotch area. (A11.)
Officer Prindle then pulled Mr. Crawfords pants tightly up past
Mr. Crawfords waist. (A11.)
Crawford asked Officer Prindle, What are you doing? and
Prindle responded, Stay on the fucking wall. You wanna go to the box?
(A11.) Crawford understood this to mean that Officer Prindle would put
him in solitary confinement if he resisted the sexual abuse. (A11.)
Crawford questioned Officer Prindle about his conduct and Prindle
responded by asking Crawford whether he had on sweat pants. When
Crawford responded in the affirmative, Prindle then asked, What are
you hiding in there? (A11-12.) According to the complaint, [d]uring
this time, Officer Prindle continued to squeeze and fondle the area
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around Mr. Crawfords penis. (A12.) Crawford responded, Im not

hiding nothing. Thats my dick youre holding. (A12.)
Crawford then told Officer Prindle that his search and frisk were
not in accordance with procedures, and Prindle responded, You don't
have any rights in here. Any search I conduct is in accordance with the
directives search and frisk policies, now shut the fuck up and face the
wall. Ill run my hands up the crack of your ass if I want to. (A12.)
Prindle then proceeded to run his hands down Mr. Crawfords legs,
around the area of Mr. Crawfords ankles, and on the inside of the back
of Crawfords boots. (A12.)
At that point, an unknown officer, John Doe # 5, approached from
the mess hall area and asked, Whats the problem? Prindle responded,
Nothing. These bastards are always complaining about being searched
around here. (A12.) When Crawford attempted to look at the unknown
officer, Prindle screamed at him, Face the fucking wall. Officer
Prindle told Crawford that if he moved again before Prindle ordered
him to do so, he would have Crawford in the box quicker than [he]
could blink. (A12.) Prindle ordered Crawford to continue on to his
destination and told him that he better not look back. Crawford then
left the area. (A13.)

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Crawford alleged that he was traumatized by Officer Prindles

conduct and that Prindles deliberate sexual touching of [his] penis
caused [him] shock, alarm and distress. (A13.) Following the incident,
he saw a prison mental health professional to report the incident,
complain about Officer Prindles conduct, and seek treatment as a
result of the trauma and embarrassment caused by the incident. (A14.)
Apart from this incident, Crawford alleged that on other occasions
Officer Prindle would seek to sexually demean Mr. Crawford and other
inmates by telling them that he had seen a little boy like you before on
the internet or claiming that he had seen their penises. (A14.) On yet
other

occasions,

Officer

Prindle

informed

inmates,

including

Mr. Crawford, that they are not properly complying with anal cavity
search procedures and need to repeat bending over and spread[ing]
their cheeks of their buttocks for him. (A14.)
Both

plaintiffs

alleged

that

Superintendent

Brown

was

personally aware that Officer Prindle had repeatedly engaged in the

sexual abuse of inmates at Eastern Correctional Facility and, upon
information and belief, Superintendent Brown personally signed off on
more than twenty grievances alleging similar or identical conduct by
Officer Prindle in 2010 and 2011. (A15.) Further, the complaint alleged
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that Superintendent Brown nonetheless permitted Officer Prindle to

continue to engage in pat frisks and other hands-on contact with
inmates, thus affording him multiple opportunities to continue to abuse
them

sexually.

(A15.)

Thus,

Superintendent

Brown

either

intentionally caused Officer Prindle to sexually abuse inmates as a

means of controlling them, or was deliberately indifferent to a serious
risk to the safety of all inmates who came into contact with Officer
Prindle. (A15.)
The complaint also named Governor Andrew Cuomo; Brian
Fischer, who was then the commissioner of DOCCS; and William
Crawford, the superintendent of the facility where Crawford is
currently

incarcerated.

It

sought

injunctive

relief

against

all

defendants, including these three. (A12.)

B.

The District Courts Decision On Defendants Motion

To Dismiss
Applying Rule 12(b)(6) of the Federal Rules of Civil Procedure, the

district court dismissed both plaintiffs Eighth Amendment claims

because the conduct alleged was no more objectively severe than the
conduct Boddie found not to violate the Eighth Amendment. Crawford
alleged only a single, relatively brief incident, during which he was fully
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clothed. There was no allegation that Officer Prindle touched Crawford

beneath his clothing, or with any part of his body other than his hands.
Nor did Crawford allege any physical injury, penetration or pain. The
court concluded that the isolated instance of groping and fondling
alleged by Crawford was not sufficiently severe to support an Eighth
Amendment cause of action. (A28-30.) Similarly, the court found that
Corleys claim that Officer Prindle paused during a pat frisk to fondle
and squeeze Corleys penis was not objectively, sufficiently serious to
state an Eighth Amendment claim. (A30-31.)
After concluding that each plaintiff failed to state an Eighth
Amendment violation, the court dismissed the supervisory-liability
claim against defendant Superintendent William P. Brown as well as
plaintiff Corleys request for injunctive relief against all defendants.
The court also declined to exercise supplemental jurisdiction over
plaintiffs state law claims. (A31-34.)
SUMMARY OF THE ARGUMENT
The district court properly dismissed plaintiffs claims that Officer
Prindle violated their Eighth Amendment right to be free of cruel and
unusual punishment based on their respective allegations of improper
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touching and fondling during a pat frisk, because those allegations were
not objectively, sufficiently serious enough to state a claim of
constitutional proportions. Boddie, 105 F.3d at 859-62. The Court
should decline plaintiffs invitation to revisit Boddies holding that not
every allegation by an inmate that a prison guard has engaged in
sexually abusive conduct will give rise to an Eighth Amendment claim,
a holding grounded in settled precedent that not every governmental
action affecting the interests or well-being of an inmate is subject to
Eighth Amendment scrutiny. Whitley v. Albers, 475 U.S. 312, 319
(1986).
Alternatively, defendants Prindle and Brown are entitled to
qualified immunity because, in view of Boddie and subsequent cases
applying Boddie, it was objectively reasonable for these defendants to
believe that the Eighth Amendment guarantee against cruel and
unusual punishment was not implicated by the conduct alleged. See
Richardson v. Selsky, 5 F.3d 616, 623-24 (2d Cir. 1993).

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STANDARD OF REVIEW AND

RULE 12(b)(6) STANDARD
This Court reviews de novo a district court's dismissal of a
complaint under Rule 12(b)(6). See J.S. v. TKach, 714 F.3d 99, 103
(2d Cir. 2013). To survive a motion to dismiss, the complaint must plead
enough facts to state a claim to relief that is plausible on its face. Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although all allegations contained in the complaint are assumed to be
true, this tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A claim will have 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. Id. To survive dismissal, a plaintiff must allege facts that are
enough to raise a right to relief above the speculative level. Bell
Atlantic Corp. at 555.

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ARGUMENT
POINT I
THE COMPLAINT FAILS TO STATE AN EIGHTH
AMENDMENT CLAIM
There is no question that sexual abuse of an inmate by a
corrections officer may in some circumstances reach constitutional
dimensions and give rise to an Eighth Amendment claim. Boddie v.
Schneider, 105 F.3d 857, 859 (2d Cir. 1997); see also Cash v. County of
Erie, 654 F.3d 324, 337, n.6 (2d Cir. 2011); Morales v. Mackalm, 278
F.3d 126, 132 (2d Cir. 2002). Even where conduct may give rise to state
tort causes of action, Boddie 105 F.3d at 861, not every allegation of
improper or malevolent touching by a prison official gives rise to a
federal cause of action under 42 U.S.C. 1983, see Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992). Here, the allegations that Officer
Prindle sexually abused plaintiffs by fondling or squeezing their
genitals during the course of a pat frisk are insufficient to state an
Eighth Amendment claim.
In general, claims of cruel and unusual punishment in violation of
the Eighth Amendment have two aspectsone subjective, focusing on
the defendants motive for his conduct, and one objective, focusing on
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the conducts effect or harm. Hudson v. McMillian, 503 U.S. 1, 7-8

(1992). Subjectively, only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825,
834 (1994) (only unnecessary and wanton infliction of pain). When no
legitimate penological purpose can be inferred from the defendants
alleged conduct, the abuse itself may be sufficient evidence of a
defendants culpable state of mind. Hogan v. Fischer, 738 F.3d 509,
516 (2d Cir. 2013); Boddie, 105 F.3d at 861.
The objective aspect of Eighth-Amendment analysis requires a
court to consider whether the alleged conduct is objectively, sufficiently
serious. Farmer, 511 U.S. at 834. Not every malevolent touch by a
prison guard gives rise to a federal cause of action. Hudson, 503 U.S. at
9. What is necessary to show sufficient harm depends upon the claim at
issue; the objective component is viewed contextually and is responsive
to contemporary standards of decency. Id.; see also Hogan 738 F.3d at
515. Allegedly offensive conduct is objectively, sufficiently serious
where the harm inflicted cannot be characterized as de minimis; and
regardless of the harm inflicted, conduct that violates contemporary
standards of decency, such as the malicious and sadistic use of force to
inflict harm, will be deemed objectively, sufficiently serious to state an
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Eighth Amendment claim. Hudson, 503 U.S. at 9; Hogan, 738 F.3d at

515.
In Boddie, this Court explained how these standards apply to
allegations of sexual abuse that do not involve the application of
significant physical force. Boddie recognized that sexual abuse of an
inmate by a prison officer may violate contemporary standards of
decency and can cause severe physical and psychological harm. 105
F.3d at 861. Thus, severe or repetitive sexual abuse of an inmate by a
prison officer can be objectively, sufficiently serious enough to
constitute an Eighth Amendment violation. Id. Such conduct has no
legitimate penological purpose, and is simply not part of the penalty
that criminal offenders pay for their offenses against society. Id.
(internal citations and quotations omitted). But alleged sexual abuse
that is not sufficiently serious does not violate the Eighth Amendment,
even if it constitutes improper conduct and may warrant state-law
remedies. Id.
Applying

these

standards,

Boddie

found

that

no

Eighth

Amendment violation was alleged when an inmate claimed that, on

separate occasions, a female corrections officer made a pass at him,
squeezed his hand, touched his penis, called him a sexy black devil,
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pressed her breasts against his chest and pushed her vagina against his
penis. None of the alleged incidents on its own was objectively,
sufficiently serious to state a constitutional claim, and the incidents
were not cumulatively egregious in the harm they inflicted. 105 F.3d.
at 861. While the episodes of harassment and touching alleged by
Boddie were despicable and, if true, could be the basis for state tort
claims, they did not involve a harm of federal constitutional
proportions. Id.
Here, plaintiff Corley alleged that Officer Prindle interrupted a
visit with his wife and escorted him from the visiting room for a pat
frisk. Corley alleged that Prindle told him he was going to make sure
that Mr. Corley did not have an erection and John Doe Officer #1
laughed when he heard Officer Prindle mention an erection. (A9.)
During the ensuing pat frisk, Prindle paused to fondle and squeeze
Corleys penis. (A9-10.) Plaintiff Crawford made similar allegations,
claiming that, during the course of a pat frisk, Officer Prindle ran his
hands over Crawfords chest, grabbed his penis, and roamed his hands
around his crotch area. When Crawford objected, Prindle continued to
squeeze and fondle Crawfords crotch area. (A11-12.)
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Contrary to plaintiffs assertions (Br. at 13-14), these allegations

of improper touching are not objectively, sufficiently serious enough to
implicate federal constitutional concerns. The allegations are not more
serious than the allegations of sexually abusive conduct this Court
found insufficient in Boddie; both cases involved limited inappropriate
touching through clothes, with the main difference being that the
corrections officer in Boddie was openly making sexual advances.
Numerous district courts, applying Boddie, have found that similar and
sometimes more serious allegations do not rise to the level of an Eighth
Amendment violation. See, e.g., Holloway v. Dept of Corr., No. 11-cv1290, 2013 U.S. Dist. LEXIS 128647, at *21-25 (D. Conn. Sept. 10,
2013) (during strip search, officer grabbed inmates private parts for a
few seconds, touched crease between his buttocks and pressed on his
anus); Harry v. Suarez, No. 10-cv-6756, 2012 U.S. Dist. LEXIS 79551, at
*6-10 (S.D.N.Y. June 5, 2012) (defendant groped inmates genitals,
buttocks, and inner thighs for up to fifty three seconds in the course of a
frisk); Morrison v. Cortwright, 397 F. Supp. 2d 424, 425 (W.D.N.Y.
2005) (during strip frisk, officer shone a flashlight up plaintiffs anus,
ran middle finger between his buttocks and rubbed his private part
against plaintiffs buttocks); Davis v. Castleberry, 364 F. Supp. 2d 319,
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320-23 (W.D.N.Y. 2005) (officer grabbed plaintiffs penis during pat

frisk); Montero v. Crusie, 153 F. Supp. 2d 368, 373, 375 (S.D.N.Y. 2001)
(during several pat frisks, officer squeezed plaintiffs genitals);
Moncrieffe v. Witbeck, No. 97-cv-253, 2000 U.S. Dist. LEXIS 9425, at *2,
15-16 (N.D.N.Y. June 29, 2000) (during pat frisk, one officer allegedly
touched plaintiffs genitals and rear end during a pat frisk and another
felt his genitals a few times during a pat frisk). 2
Plaintiffs reliance on Abreu v. C.O. Nicholls, 368 F. Appx
191 (2d Cir. 2010), and United States v. Walsh, 194 F.3d 37 (2d Cir.
1999) (Br. at 14-17), is misplaced. In those cases, the Court found that
an officers use of force was more than de minimis even though there
was no evidence of injury, for reasons that do not apply here. First, in
both Walsh and Abreu the conduct was much more extreme and
threatening than the conduct alleged here. Walsh affirmed a corrections
officers

criminal

conviction

for

violating

an

inmates

Eighth

Amendment rights. The officer, who weighed 300 to 400 pounds,

sadistically tortured a mentally disturbed inmate on three separate
See also James v. Coughlin, 13 F. Supp. 2d 403 (W.D.N.Y. 1998) (during pat frisk,
defendant placed his genital area on plaintiff and wedged plaintiffs pants into his
buttocks); Williams v. Keane, No. 95-cv-0379, 1997 U.S. Dist. LEXIS 12665, at *2-3,
28-29 (S.D.N.Y. Aug. 25, 1997) (during pat frisk, officer fondled plaintiffs chest,
opened pants up, put hands down pants and repeatedly felt testicles).
2

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occasions for no legitimate penological purpose, by ordering the inmate

to expose himself so that Walsh could step on his penis, causing
excruciating pain. Id. at 41-43. And in Abreu, an officer pressed a
rubber hammer against an inmates forehead, bending his head halfway
backwards, implicitly threatening to apply greater force and acting
solely for the purpose of humiliating the inmate. Id. at 193-94. Here,
the conduct was not as extreme as in Walsh and not as threatening as
in Abreu.
Second, in those cases the conduct at issue took place outside the
context of any legitimate activity, whereas the conduct alleged in this
case took place in the context of a routine pat frisk. Plaintiffs do not
dispute that corrections officers have a legitimate need to perform pat
frisks. And of course corrections officers who fail to search the genital
area in the course of an appropriate frisk would create a security risk if
they passed over one of the easiest places to hide contraband. In fact,
the allegedly improper touching hereapart from the alleged
motivations for itis difficult to distinguish from the touching that
could be expected as part of any pat frisk. As one court noted,

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It is obvious that [a]ny manual search of an individuals

body will require some amount of manipulation of the
genitals in order to accomplish the purpose of the search.
Although grabbing and tugging could cause some
discomfort and embarrassment, it does not rise to the level of
unnecessary and wanton infliction of pain so long as it
occurs as part of an otherwise justified search.
Davis v. Castleberry, 364 F. Supp. 2d at 321 (quoting Cherry v. Frank,
No. 30-C-129-C, 2003 U.S. Dist. LEXIS 26495, at *12 (W.D. Wisc.
Dec. 4, 2003); see also Nuriddin v. Estrella, No. 11-cv-01448, 2014 U.S.
Dist. LEXIS 23731, at *6-7 (E.D. Cal. Feb. 24, 2014).

However

improper the alleged motivations for the frisks here, the degree of
physical contact alleged by each plaintiff is consistent with the
execution of a routine body search by prison officials charged with the
duty to maintain and assure prison security.
Contrary to plaintiffs assertion (Br. at 17), the conduct alleged in
this case, which is less serious than the conduct at issue in Boddie,
cannot fairly be classified as repugnant to the conscience of mankind
as that concept has been applied. Cf. Hogan, 738 F.3d at 516 (spraying
inmate with mixture of vinegar, excrement and machine oil); Hill v.
Crum, 727 F.3d 312, 323-24 (4th Cir. 2013) (torture, humiliation or
degradation are repugnant to conscience of mankind). The Seventh
Circuits decision in Washington v. Hively, 695 F.3d 641, 643 (7th Cir.
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2012), is also unlike this case. That court allowed an Eighth

Amendment claim to go forward where a jail guard allegedly spent
several seconds gratuitously fondling a pre-trial detainees testicles and
penis through clothing, and then fondled the inmates nude testicles
during a strip search. Id. at 643. Significantly, jail policy forbade any
touching during the search, and the search itself was unjustified. By
contrast, the contact alleged here is over-the-clothes contact in the
course of pat frisks whose justification plaintiffs have not challenged.
Plaintiffs ask this Court to revisit Boddie and hold that every
inmates allegation of sexual abuse by a prison guard states a claim
under the Eighth Amendment, on the ground that such alleged conduct
always violates contemporary standards of decency. (Br. at 17-25). But
there is no reason to treat sexual touching differently from various
other forms of improper touching for these purposes. Boddies holding
that not every allegation of sexual abuse will give rise to an Eighth
Amendment claim is grounded in settled precedents holding that not
every governmental action affecting the interests or well-being of an
inmate is subject to Eighth Amendment scrutiny. Whitley v. Albers, 475
U.S. 312, 319 (1986). Rather, only those actions involving the
unnecessary and wanton infliction of pain rise to the level of cruel and
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unusual punishment within the meaning of the Eighth Amendment. Id.

(citations and internal quotations omitted).
The Court should reject the suggestion of plaintiffs and amici
curiae that societal expectations and standards regarding sexual abuse
in prisons and jails changed markedly after Boddie was decided in 1998.
Sexual abuse by prison officials was as reprehensible in 1998 as it is
now. Recent legislation, such as the Prison Rape Elimination Act of
2003, 42 U.S.C. 15601 et seq., does not suggest otherwise.

That

statute was enacted to facilitate the gathering of facts about the extent
of the problem of prison rape, and to create a commission that would
gather accurate information about prison rapes and develop national
standards for their detection, prevention, reduction and punishment.
See 42 U.S.C. 15601 et seq. The goal of the statute was to investigate
the extent of the problem and to develop policy responses to it, not to
codify a new understanding that prison rape was unacceptable.
Similarly, new state laws concerning prison sexual abuse reflect
changes in views about which policy approaches will most effectively
prevent it, and which remedies other than constitutional litigation are
necessary and appropriate to address the problem of rape and sexual
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abuse in prison. But none of these developments suggest that outrage

about prison sexual abuse is of recent vintage.
Far from basing its holding on outmoded views about the
wrongness of prison sexual abuse, the Boddie Court recognized that the
sexually abusive conduct alleged there was despicable, before noting
that the plaintiff was not without state court remedies. 3 And sexual
contact without consent has been a crime in New York since long before
Boddie. See 1965 N.Y. Laws 1030, 130.55; N.Y. Penal Law 130.55
(defining sexual abuse in the third degree as subject[ing] another
person to sexual contact without the latters consent). In fact, by the
time Boddie was decided, New York law specifically provided that
inmates were statutorily incapable of consenting to sexual contact,
which made any sexual contact between a corrections officer and an
inmate per se criminal. See 1996 N.Y. Laws 266, 1; N.Y. Penal Law

One district court in this circuit has held that since Boddie was decided in 1997,
there has emerged a national consensus that any sexual assault of a prisoner by a
prison employee constitutes cruel and unusual punishment. Rodriguez v.
McClenning, 399 F. Supp 2d 228, 238 (N.D.N.Y. 2005). This holding has not been
embraced by other district courts. See Samuels v. Strange, No. 08-cv-1872, 2012
U.S. Dist. LEXIS 143935, at *8-10 (D. Conn. October 4, 2012) (holding of Rodriguez
is inconsistent with Boddie and vast majority of relevant circuit and district court
cases); Harry v. Suarez, No. 10-cv-6756, 2012 U.S. Dist. LEXIS 93385, at *2
(S.D.N.Y. July 3, 2012) (same).
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130.05; see also N.Y. Penal Law 130.00(3) (defining sexual contact)
and 130.60(1) (defining crime of sexual abuse in the second degree).
In sum, although the conduct described in the complaint is
unacceptable, it does not rise to the level of an Eighth Amendment
violation because it is not objectively, sufficiently serious. Accordingly,
the district court properly dismissed plaintiffs Eighth Amendment
claims and plaintiff Corleys request for injunctive relief, and properly
declined to exercise supplemental jurisdiction over plaintiffs state law
claims.
Finally, even if the allegations stated a constitutional claim
against Officer Prindle, which they do not, the complaint fails to state a
claim against defendant Brown because the factual allegations are
insufficient to show that Brown was personally involved in the alleged
constitutional violations. Plaintiffs claim that Brown was personally
aware of Prindles conduct because Brown personally signed off on
more than twenty grievances alleging similar or identical conduct by
Officer Prindle in 2010 and 2011. (A15.) Mere receipt of grievances is
insufficient to show personal involvement in a constitutional violation,
especially where there is no claim that any of these grievances were
substantiatedeither by Brown or any othersuch that knowledge of
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Prindles alleged wrongful conduct could be imputed to Brown. Cf. Law

v. Cullen, 613 F. Supp. 259, 262 (S.D.N.Y. 1985) (unsubstantiated
civilian complaints against officer for using excessive force were not a
basis to impute to employer knowledge of officers propensity to use
excessive force).

The district court was correct in dismissing these

claims.
POINT II
ALTERNATIVELY, DEFENDANTS PRINDLE AND
BROWN ARE ENTITLED TO QUALIFIED IMMUNITY
Qualified immunity shields government officials from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known. DiStiso v. Cook, 691 F.3d 226, 240
(2d Cir. 2012) (quoting Messerschmidt v. Millender, 132 S. Ct. 1235,
1244 (2012)). An official is entitled to the qualified immunity defense if
(1) the plaintiff has failed to assert the violation of a protected right or
(2) even if plaintiff has done so, the right in question was not clearly
established at the time the challenged action was taken. DiStiso, 691
F.3d at 240.
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Regarding the second step, officials will be entitled to qualified

immunity if either (1) their conduct does not violate clearly established
constitutional rights or (2) it was objectively reasonable for them to
believe their acts did not violate those rights. Southerland v. City of New
York, 680 F.3d 127, 141 (2d Cir. 2011). An officer is also entitled to
qualified immunity if officers of reasonable competence could disagree on
the legality of the action at issue in its particular factual context. Id.
Even if plaintiffs had stated an Eighth Amendment claim against
defendants Prindle and Brown, they would be entitled to qualified
immunity, because it was objectively reasonable for them to believe that
the Eighth Amendment was not implicated by the conduct alleged in
the complaint. While Boddie established that sexual abuse of an inmate
by a corrections officer may give rise to an Eighth Amendment claim,
neither Boddie nor the vast majority of district courts subsequently
applying Boddie have found that the conduct described by the plaintiffs
constitutes an Eighth Amendment violation. Indeed, the allegations in
Boddie, as well as subsequent district court cases finding no Eighth
Amendment violation, were at least as serious, if not more so, than the
allegations in this case. Cf. Boddie, 105 F.3d at 859-861; Holloway, 2013
U.S. Dist. LEXIS 128647, at *21-25; Morrison, 397 F. Supp. 2d at 425;
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Davis, 364 F. Supp. 2d at 320-23; Montero, 153 F. Supp. 2d at 373, 375;

Moncrieffe, 2000 U.S. Dist. LEXIS 9425, at *2, 15-16. Accordingly, it
was objectively reasonable for defendants Prindle and Brown to believe
that Prindles conduct did not violate plaintiffs Eighth Amendment
rights. See Richardson v. Selsky, 5 F.3d 616, 623-24 (2d Cir. 1993)
(where contours of claimed federal right not clearly delineated, it was
objectively reasonable for officers to believe their actions did not violate
clearly established law). Moreover, if the Court revisits Boddie and
enunciates a different standard for evaluating Eighth Amendment
claims by inmates alleging sexual abuse by prison guards, defendants
Prindle and Brown are entitled to qualified immunity because these
officials cannot be expected to predict future developments in
constitutional law. See generally Wilson v. Layne, 526 U.S. 603, 617
(1999).

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CONCLUSION
The judgment of the district court should be affirmed.
Dated: Albany, New York
October 14, 2014
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants-Appellees

By: /s/ Frank Brady

FRANK BRADY
Assistant Solicitor General
Office of the Attorney General
The Capitol
Albany, New York 12224
(518) 486-4502

BARBARA D. UNDERWOOD
Solicitor General
ANDREW AYERS
FRANK BRADY
Assistant Solicitors General
of Counsel

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