Case: 14-969

Document: 45

Page: 1

07/21/2014

1275958

40

UNITED STATES COURT OF APPE ALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthou se

40 F oley Square, N ew York, NY 10007 T elephone: 212-857-8500

MOT[QN JNFOnMATlON STATEMENT
l>ocket Number(s):
Motlon ror:

_1_4_-_9_6_9
_-C_V
____________ _ _____ _ C~a=p~ti~on~[~u~se~s~ho~rt~t~it~
lcl~--------

Leave to file amicus brief

James Crawford and Thaddeaus Corley,
Plaintiffs-Appellants,

v.
Set forth below precise, complete statement of relief sought:

Andrew Cuomo, et .al., Defendants-Appellees.

Leave to file a brief of amici curiae in

support of Plaintiffs-Appellants.

MOVIN~RTY: New York Civil Liberties Union, et
LJPlainti ff
0 Appellant/Petitioner

MOVING A'rroRNEY:

Defendant
Appellee/Respondent

al.

OPPOSING PARTY:

Andrew Cuomo, et al.

..J
DI Amicus Curiae

Erin Beth Harrist

OPPOSING ATI'ORNEY:

Frank Brady

- - - - - - - - - - - ---'--

[name of attorney, with firm, address, phone number and e-mail]

New York Civil Liberties Union

Office of the Attorney General of the State of New York

125 Broad Street, 19th Floor New York, NY 10004 The Capitol Albany, New York 12224
212-607-3300; eharrist@nycl u .org

518-486-4 502; frank.brady@ag.ny.gov

~--------------------~

Court-Judge/Agency appealed f r o m : - - - - -- --

- - - - - - -- - - - - - - - - - - - - - - - - - - -

Please check appro priate boxes:

FOR EMERGENCY MOTIONS, MOTIONS F OR STAYS AND

INJUNCTIONS PENDING APPEAL:
Has mo~ notit;i.W,opposing counsel (required by Local Rule 27.1):
L{J Yesl J No (explain):_by"""'p_tior_ie_o_n
_
_01_-1_6-_14_ _ _ __ __
Opposin~unsel 's position on

LJ Unopposed O

D No

Has request for relief been m1:1de below?
D ves
Has this relief been previously sought in this Court?
O ves
Requested returo dale and explanation of emergency:_ _ _ _ __ __

0 No

motion:

opposed [{Joon 't Know

Does opposing counsel intend to file a response:

0

Yes

0 No [{Pon't Kno w

llJ No

ls oral argument on motion requested?

O

Has argument date of appeal been set?

D Yes [l] No

ves

Signature of ~n~ J torney: ~
-J:::.
___ _ Date: 07/21/2014

Z

~

Form T-1080 (rev. 12-13)

(requests for oral arg\lment w ill not necessarily be granted)
Tfyes, enter elate:_ __ _ _ _ _ __ _ _ _ __ _ _ _ __ _ _

Service by 0 cMIECF

0

Other [Attach proof of service]

Case: 14-969

Document: 45

Page: 2

07/21/2014

1275958

40

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

---------------------------------------------------------------------){
JAMES CRAWFORD & THADDEUS
CORLEY,

Plaintiffe-Appellants,
v.
ANDREW CUOMO, as Governor of the State of
New York, in his official capacity; BRIAN
FISCHER, Corrunissioner of Depa1tment 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; Conections Officer SIMON PRJNDLE;
and JOHN DOE CORRECTIONS OFFICERS 1-8,

14-969-cv

Defendants-Appellees.

----------------------------------------------------------------------)(
AFFIRMATION OF ERIN BETH HARRIST JN SUPPORT OF MOTION
BY THE NEW YORK CIVIL LIBERTIES UNION, THE LEGAL AID
SOCffiTY OF NEW YORK, HUMAN RIGHTS DEFENSE CENTER,
PRISONERS' LEGAL SERVICES OF NEW YORK, AND THE UPTOWN
PEOPLE'S LAW CENTER
FOR LEAVE TO SUBMIT AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFFS-APPELLANTS JAMES CRAWFORD
AND THADDEUS CORLEY
Erin Beth Harrist declares under penalty of perjury, pursuant to 28 U.S.C. §

1746, that the following is true and correct:
1.

I am a staff attorney at the New York Civil Liberties Union Foundation

("NYCLU") and a member of the bar of this Court. The NYCLU is a nonprofit,

Case: 14-969

Document: 45

Page: 3

07/21/2014

1275958

40

nonpartisan organization with approximately 50,000 members, founded in 1951 to
protect and advance civil rights and civil liberties in New York State. I submit this
affirmation in support of the motion of the NYCLU, the Legal Aid Society of New
York, Human Rights Defense Center, Prisoners' Legal Services of New York, and
the Uptown People's Law Center to appear as amici curiae in supp01t of PlaintiffsAppellants. The proposed brief of amici curiae is attached as Exhibit A. This
motion and accon1panying proposed brief, filed within 7 days of PlaintiffsAppellants' brief, complies with the time for filing pursuant to Fed. R. App. P.
29(e). Plaintiffs-Appellants consent to the filing of this brief. DefendantsAppellees have been notified of intent to file this brief and have not, to date, taken
a position on whether or not they consent.
2.

In this case, Plaintiffs-Appellants alleged that a corrections officer had

repeatedly squeezed and fondled their penises while issuing threats and sexual
comments, resulting in emotional and psychiatric distress. The District Court held
that the Plaintiffs did not state a cause of action under the Eighth Amendment
because each Plaintiff only experienced lhe alleged abuse during one incident and
there were no aJlegations of physical injw·y, penetration, or pain.

3.

The amici cur;ae brief addresses two points not briefed by Plaintiffs-

Appellants, which amici curiae submit are relevant to the Cowt's ruling on the
appeal. First, the District Court's ruUng that penetration or physical injury is
2

Case: 14-969

Document: 45

Page: 4

07/21/2014

1275958

40

required to state a claim under the E ighth Amendment is a common
misinterpretation of this Court's ruling jn Boddie v. Schnieder, 105 F.3d 857 (2d
Cir. 1997) that has sown confusion in both district courts within this Court's
jurisdiction and in appellate courts across the country. This case presents an
opportunity for the Court to correct this misunderstanding of the Boddie ruling and

clarify that sexual abuse in the prison context does not need to include penetration
or physical injuty, consistent with controlling constitutional principles regarding
what constitutes cruel and unusual punishment.

4.

Second, drawing from federal and state laws reflecting cu1Tent standards of

decency, amici curiae propose a bright-line rule that cruel and unusual punishment
includes any intentional contact by a corrections officer with a detainee's genitalia

or other intimate areas that is either unrelated to official duties or where the officer
has the intent to abuse, arouse, or gratify sexual desire. This rule is consistent with
the federal regulations promulgated under the Prison Rape Elimination Act, the
New York Penal Law, and forty-six other states and will bring a much needed
consistency and humanity to Eighth Amendment law.
5.

The proposed amici curiae are well-positioned to address these issues. The

NYCLU frequently litigates and advocates on behalf of the constitutional righls of
incarcerated New Yorkers, including their Eighth Amendment rights. See, e.g.,

Butler v. Suffolk County, l l-cv-02602 (E.D.N.Y.) (suit against Suffolk County
3

Case: 14-969

Document: 45

Page: 5

07/21/2014

1275958

40

alleging that the conditions of its correctional facilities violate the Eighth and
Fourteenth Amendments to the United States Constitution). The Legal Aid Society
of New York, through its Prisoners' Rights Project, seeks to ensure the protection
of prisoners' constitutional rights, including on behalf of prisoners who have
experienced sexual abuse. See, e.g., Amador v. Andrews, 03 Civ. 0650 (S.D.N.Y.)

(putative class action brought by women prisoners challenging the policies of State
prison officials that enable staff sexual abuse to persist). The Human Rights
Defense Center (HR.DC) publishes Prison Legal News and other reference

materials for prisoners and reports extensively on the sexual abuse of prisoners by
jail and prison staff. Both the Legal Aid Society and HRbC were involved in the
development of the standards promulgated pursuant to the Prison Rape Elimination

Act. Prisoners' Legal Services of New York provides civil legal services to
indigent inmates in New York State correctional facilities, including claims of
sexual abuse and cruel and inhuman treatment. The Uptown People's Law Center
advocates for the civil rights of prisoners and litigates class actions and individual
cases on behalf of prisoners.
6.

On behalf of the NYCLU and the other amici curiae> I respectfully request

leave to file the attached proposed amici curiae brief in support of PlaintiffsAppellants.

4

Case: 14-969

Dated:

Document: 45

Page: 6

07/21/2014

1275958

40

July 21, 2014

New York, New York

&~4~~
New York Civil Liberties Union Foundation
125 Broad Street, 19th Fl.

New York, New York 10004
(212) 607-3399
eharrist@nyclu.org

5

Case: 14-969

Document: 45

Page: 7

07/21/2014

Exhibit A

1275958

40

Case: 14-969

Document: 45

Page: 8

07/21/2014

1275958

40

-CV
United States Court of Ap,peals
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 h is 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 OF AMICI CURIAE THE NEW YORK CIVIL
LIBERTIES UNION, THE LEGAL AID SOCIETY OF NEW
YORK, HUMAN RIGHTS DEFENSE CENTER,
PRISONERS' LEGAL SERVICES OF NEW YORK, AND
THE UPTOWN PEOPLE'S LAW CENTER
IN SUPPORT OF PLAINTIFFS-APPELLANTS JAMES
CRAWFORD and THADDEUS CORLEY

ERIN BETH HARRIST
COREY STOUGHTON
CHRISTOPHER DUNN
New York Civil Liberties Union Foundation
125 Broad Street, 191h Floor
New York, N.Y. 10004
(212) 607-3300
(For continuation ofAmici Appearances See Inside Cover)

Case: 14-969

Document: 45

Page: 9

07/21/2014

1275958

LANCE WEBER

SEYMOUR W. JAMES, JR

ROBERT JACK
Human Rights Defense Center
PO Box 1151
Lake Worth, Florida 33460
(561) 360-2523

DORI A. LEWIS
Prisoners' Rights Project
Legal Aid Society
199 Water Street
New York, N.Y. 10038
(2 12) 577-3530

KAREN MURTAGH
MELIS SA LOOMIS
Prisoners' Legal Serv ices of New York
41 State Street, Suite M l 12
Albany, N.Y. 12207
( 518) 445-6050

ALAN MILLS
Uptown People 's Law Center
4413 North Sheridan
Chicago, Illinois 60640
(773) 769-14 10

Alforneysfor Amici Curiae continued

40

Case: 14-969

Document: 45

Page: 10

07/21/2014

1275958

40

RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 , counsel for amici curiae
hereby disclose that the New York Civil Liberties Union Foundation, Human Rights

Defense Center, Prisoners' Legal Services of New York, Legal Aid Society's
Prisoners' Right Project, and Uptown People' s Law Center are nonprofit
corporations. They have no parent corporations and no corporation directly or
indirectly holds 10% or more of the ownershjp interest in any of the amici.

Case: 14-969

Document: 45

Page: 11

07/21/2014

1275958

40

Table of Contents
INTRODUCTION ................................................................................................... l
INTEREST OF AMICI CURIAE ............................................................................. 3

ARGUMENT .... ···················-····························-··················· ................................... 6
I.

Intentional Contact With a Detainee's Genitalia Unrelated to a
Corrections Officer=>s Official Duties or Undertaken With Intent to

Abuse, Arouse, or Gratify Sexual Desfre Is Cruel and Unusual
Punishment. .............................................................................................. 7
A. Binding Precedent From the Supreme Court and This Court

Defining "Cruel and Unusual Punishment" Requires Adoption
of the Rule Proposed by Amici and Rejection of the District
Court's Rule ..... .................................................................................... 7
B. "Contemporary Standards ofDecemcy" Require the Court to
Adopt the Rule Proposed by Amici and Reject the District
Court's Rule. ···-····························-··················· .................................. 11

IL

The Standard Propo sed by Amici Is Necessary to Bring Humanity,

Coherence and Consistency to Eighth Amendment Law Governing
Sexual Abuse in Prisons and Jails ........................................................... 16
CONCLUSION ...................................................................................................... 22

Case: 14-969

Document: 45

Page: 12

07/21/2014

1275958

40

Table of Authorities

Cases
Amador v. Smith, No. 10-CV-06702 (W.D.N.Y. May 9, 2013) .......... ...... ....... 13, 20

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................. 12
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997) ............... .......................... passim
Boxer Xv. Harris, 43 7 F .3d 1107 (11th Cir. 2006) ................................................ 19
Calhoun v. DeTel!a, 319 F.3d 936 (7th Cir. 2003) ....................................... .......... 20
Castro-Sanchez v. N.YS. Department of Corrections, 10-Civ-8314
(S.D.N.Y. Sept. 28, 2012) ............................. ...................................................... 17
Copeland v. Nunan, 250 F.3d 743 (5th Cir. 200 ]) ................................................. 19

Doe v. Barrett, No. 3:01cv519, 2006 WL 3741825
(D. Conn. Dec. 19, 2006) .................................................................................... 20
Farmer v. Brennan , 511 U.S. 825 (1994) ................................................................. 9
Graham v. Florida, 560 U.S. 48 (2010) ........................................................... 11-12
Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................... 9
Harry v. Suarez, No. 10 Civ. 6756, 2012 WL 2053533
(S.D.N.Y. June 4, 2012) .... ...................... .. .................................... .. .............. ...... 22
Holton v. Moore, No. CIV.A.96CV0077, 1997 WL 642530
(N.D.N.Y. Oct. 15, 1997) .......................... .................................... .. .............. ...... 18

Hudso11 v. Mc Millian>503 U.S. 1 (1992) .............................. .............................. 9-1 0
Hudson v. Palmer, 468 U.S. 517 (1984) ............................. .. .............. .............. ...... 10

11

Case: 14-969

Document: 45

Page: 13

07/21/2014

1275958

40

Hughes v. Smith, 237 F. App'x 756 (3d Cir. 2007) .. .. ............................................ 22
Jrvis v. Seally, No. 9:09-cv-543, 2010 WL 5759 149
(N.D.N.Y. Sept. 2, 2010) .. .................................................................................. 18
Jackson v. Madery, 158 F. App'x 656 (6th Cir. 2005) ........................................... 19
Johnson v. Enu, No. 08-cv-15 8, 2011 WL 3439 179
(N.D.N.Y. July 13, 2011) .................................................................................... 22
Jones v. Rock, No. 9:12-cv-0447, 2013 WL 4804500
(N.D.N.Y. Sept. 6, 2013) .................................................................................... 17

Joseph v. Federal Bureau ofPrisons, 232 F.3d 901 (lOu1 Cir. 2000) ..................... 13
Lewis v. Fischer, No. 08-CV-3027, 2009 WL 689803
(E.D.N.Y. Mar. 12, 2009) ................................................................................... 20
McEachin v. Bek,. No. 06-CV-6453, 2012 WL 1 113584
(W.D.N.Y. Apr. 2, 2012) .................................................................................... 17
M ontero v. Crusie, 153 F. Supp. 2d 368 (S.D.N.Y. 2001) ..................................... 22
Rodriguez v. McClenning, 399 F. Supp. 2d 228 (S.D.N.Y. 2005) ......................... 20

Roper v. Simmons, 543 U.S. 551 (2005) ........................................................... 12, 13
Samuels v. Strange, No. 3:08cv1872, 2012 WL 4754683
(D. Conn. Oct. 4, 2012) ..... .................................................................................. 17
Sanders v. Gifford, Civ. No. 9: l l-cv-0326, 2011 WL 17925 89
(N.D.N.Y. Apr. 5, 2011) ..................................................................................... 18
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ............................................. 20
Solomon v. Michigan Department of Corrections, 478 F. App'x 318
(6fu Cir. 2012) ............................................................................................... 18-19
United States v. Walsh , 194 F.3d 37 (2d Cir. 1999) ............................................... 10

111

Case: 14-969

Document: 45

Page: 14

07/21/2014

1275958

40

Washington v. Harris, 186 Fed. App'x 865 (11 th Cir. 2006) ................................. 19
Whitley v. Albers:> 475 U.S. 312 ( 1986) .................................................................. 12
Williams v. Fitch,, 550 F. Supp . 2d 4 13 (W.D.N.Y. 2008) ............................... 2 1-22

Williams v. Prudden, 67 F. App'x 976 (8th Cir. 2003) .............................. .. .......... 20

Statutes, Rules and Regulations

18 Pa . Cons. Stat. § 3 124.2 ..................................................................................... 15

18 U.S.C. § 2244(b) ................................................................................................ 14
18 U.S.C. § 2246(3) ·············-···························· -··················· .................................. 14
28 C.F.R. § 11 5.6 .............................................................................................. 13, 21

28 C.F.R. § 115.1 1 ............... -............................................................ .. .................... 13
28 C.F.R. §§ 115.3 1-35 ........................................................................................... 21
28 C.F.R. § 115.76 ............... _............................................................................ 13-14

720 Ill. Comp. Stat. Ann. 5/1 J-9.2 ......................................................................... 15
Ala. Code§ 14-1 1-3 1 ........... .................................................................................. 15
Alaska Stat. § 11.41.427 ........................................................................................ 15

Ariz. Rev. Stat. Ann.§ 13-14 19 ............................................................................. 15
Ark. Code Ann.§ 5-14-127(a)(2) ... ....................................................................... 15
Cal. Penal Code§ 289.6 ......................................................................................... 15
Colo_ Rev. Stat.§§ 18-7-701 , 18-3-404 ...... .. .... ............................................ ......... 15

Conn. Gen. Stat.§§ 53a-73a .................................................................................. 15
lV

Case: 14-969

Document: 45

Page: 15

07/21/2014

1275958

40

Del. Code. Ann. tit. 11, § 769 ··········· ················-················· ·· ................................. 15
D.C. Code§ 22-3014 ........... ·····························-··················· ................................. 15
Ga. Code Ann.§ 16-6-5. 1 ································· -···················································· 15
Haw. Rev. Stat.§ 707-732(e) ······················ ·· ····-······· ·· ······························ ···· ···· ····· 15
Idaho Code Ann. § 18-61 10 . ·····························-······································· ............. 15
Ind. Code Ann.§ 35-44.1-3-10 ··········· ········· ·····-······· ··--········································· 15
Iowa Code 709.16 ············································· -···················································· 15
Kan. Stat. Ann. § 21 -5512 ·· ·-·················· ··········-···· ··· ············ ............ .. .......... ......... 15

Ky. Rev. Stat. Ann.§§ 510.120, 510.020 ·········-···················································· 15
La. Rev. Stat. Ann. § 14: 134.1 ............................................................................... 15
Me. Rev. Stat. Ann. Tit. 17-A, § 255-A ................... .. ........................................... 15
Md. Code Ann. Crim. Law§ 3-314 ....................................................................... 15
Mass. Gen. Laws ch. 268, § 2 1A ················ ·· ····-······· ············ ................................ . 15
Mich . Comp. Laws§ 750.520b .............................................................................. 15
Minn. Stat. Ann.§ 609.345(l )(m) .............. .. .................................... .. .................. . 15
Mo. Rev. Stat.§§ 566. 101, 566.145 ............. ... ................................. .. ........ .......... . 15
Mont. Code Ann. § 45-5-502 ................................................................................. 15

Neb. Rev. Stat. Ann. § 28-322 ............................................................................... 15
Nev. Rev. Stat. Ann.§ 212.187 ........ ........................ ............................................. 15
N.Y. Penal Code§ 130.05 ................................ ...................................................... 14

v

Case: 14-969

Document: 45

Page: 16

07/21/2014

1275958

40

N.Y. Penal Code§ 130.52 ································-··············································· 14, 21
N.Y. Penal Code§ 130.60 ... ·····························-··················· .................................. 14

N.H. Rev. Stat. Ann.§§ 632-A:2(I)(n)(l), 632-A:4 .............................................. 15

NJ. Stat. Ann. §§ 2C: 14-2, 2C: 14-3 ··········· ······-··················· ................................. 15
N.M. Stat. Ann. § 30-9- 12 ... ·····························-··················· ................................. 15

N.C. Gen. Stat. § 14-27.5A ··· ·············· ········· ·····-······· ································ ............. 15
N.D . Cent. Code § 12.1-20-07 ·························· -··················· ................................. 15

Ohio Rev. Code. Ann.§§ 2907.03, 2907.06 ·····-······· ············ ............ .. ................... 15

Or. Rev. Stat. Ann. § 163.454 ···························-··················· ................................. 15
R. I. Gen. Laws~ 11-37-4 ·································-··················· ................................. 15
S.C. Code Ann.§ 44-23-l 150(c)(2) ·················-······································· ............. 15

S. D. Codified Laws§ 22-22-7.4 ······················-··················· ................................. 15
Tenn_ Code Ann. §39-16-408 ····················· ·· ····-······· ································ ............ . 15
Tex. Penal Code Ann. § 39.04 ··························-··················· ................................. 15
Utah Code Ann. § 76-5-412(4) (5) ············· ·· ····-··················· ............ .. .................. . 15
Va. Code Ann.§§ 18.2-67.4, 18.2-67.10 ······ ··· ·-······························· ····················· 15

W. Va. Code Ann.§§ 61-8B-2, 61-8B-7 ··········-··················· ................................. 15

Wash. Rev. Code Ann. § 9A-44.170 ··············· ·-······································· ............. 15
Wis. Stat. Ann. § 940.225(2) ····························-··················· ................................. 15
Wyo. Stat. Ann. § 6-2-303 ... ·····························-··················· ................................. 15
VI

Case: 14-969

Document: 45

Page: 17

07/21/2014

1275958

40

INTRODUCTION 1
This case presents an ideal opportunity for the Couit to coITect an
indefensibly narTow inte1pretation of unconstitutional sexual abuse in prisons and
jails under the Eighth Amend ment arising from a seventeen year-old decision of
this Court. The District Court below misread Boddie v. Schnieder, 105 F.3d 857

(2d Cir. 1997), to create a rule that a detainee victimized by a coITections officer
must allege penetration of a body cavity or a physical injury in order to state a
claim for sexual abuse under the Eighth Amendment.

Because the Plaintiffs'

allegations in this case involved forcible, threatening, and inappropriate groping of
the plaintiffs' genitals, but not penetration or physical injury, the District Court
dismissed the ir complaint.

This Comi should expressly reject this rnisreacting of Boddie and hold that
cruel and unusual punishment includes any intentional contact by a coITections
officer with a detainee's genitalia or other intimate areas that is either unrelated to
official duties or w here the officer has the intent to abuse, arouse, or gratify sexual
desire.

This ml e derives directly from federal and state laws enacted for the

purpose of defining and prohibiting sexual a buse in prisons and jails.

Such

legislative enactments are precisely the objective source m'1terial identified by this
1

Pursuant to Federal Rule of Appellate Procedure 29(c)(5) and Local Rule 29.1 , Amici state that
no party's counsel authored the brief in whole or in part; no party or party' s counsel contributed
money that was intended to fund preparing or submitting the brief; and no person-other than
Amici, its members, or its counsel -contributed money that was inten ded to fund preparing or
submitting the brief.

1

Case: 14-969

Document: 45

Page: 18

07/21/2014

1275958

40

Court and the Supreme Court as defining contemporary standards of d ecency and
informing the scope of the Ejghth Amendment ,s protections. The Supreme Comt
and this Cowt' s foundational case law defining "cruel and unusual punishment"
also supports this rule because that case law focuses on the objective
characteristics of the punislunent and the subjective intent of the perpetrator. The

Dist1ict Court's rule, by contrast, is inconsistent with contemporary standards of
decency and finds no support in the Supre1ne Court or this Court's case law,
including Boddie itself, which makes no mention of a requirement to plead

penetration or physical injury.
The bright-line rule proposed by Amici would bring humanity, rationality
and coherence to an area of law that for decades has lacked all three. Boddie held

that sexual abuse violates the Eighth Amendment but did not define "sexual abuse"
other than to suggest that isolated instances of sexual harassment did not suffice to
state a claim. Since Boddie was decided nearl y two decades ago, the question of
bow to distinguish single instances of unconstitutional sexual abuse from nonactionable sexual harassment has bedeviled courts across the country. Many courts
in this Circuit and beyond have, like the District Corn1 here, wrongly interpreted

Boddie to dismiss claims for a wide range of serious sexual assault and abuse
perpetrated by conections officers on persons in their custody, including forcible
groping or fondUing of genitals or breasts and forced kissing.
2

This inco1rect

Case: 14-969

Document: 45

Page: 19

07/21/2014

1275958

40

interpretation leaves an enormous gap in the Eighth Amendment' s protection from
grossly inapprop 1iate, offensive, and damaging instances of sexual abuse by
0

corrections officers. Other courts, finding such a gap indefensible, have rejected

the notion that penetration or physical injury is necessary to state a claim, resulting
in a lack of consistency both within this Circuit and across the country. This
Court's a1ticulation of the rule proposed by Amici would restore much-needed
clarity to this area of law and ensure that inhumane sexual abuse in prisons and
jails is not tolerated.

INTEREST OF AMI CI CURIAE
The New York Civil Liberties Union (NYCLU) is a nonprofit, nonpartisan
organization with approximately 50,000 members fo unded in 1951 to protect and
advance civil rights in New York. The NYCLU advocates for the constitutional
rights of all New Yorkers, including those w ho are incarcerated, and seeks to
ensure individuals can obtain redress in the courts for constitutional v iol ations.

The Legal Aid Society of New York i s a private, nonprofit organization
that has provided free legal assistance to indigent persons in New York City for
over 125 years. Through its Prisoners' Rights Project, the Society seeks to ensure
the protection of prisoners' constitutional and statutory tights. For more than a
decade the Pri.soners' Rights. Project has been a vigorous advocate on behalf of

prisoners who have expe1ienced sexual abuse, through litigation in the federal and
3

Case: 14-969

Document: 45

Page: 20

07/21/2014

1275958

40

State courts and through legislative advocacy. Examples include our work in

Amador v. Andrews, No. 1:03-cv-00650 (KTD) (S.D.N.Y. filed Jan. 28, 2003), a
case on behalf of a putative class of women prisoners who challenge the policies of

State plison officials that enable staff sexual .abuse to persist; particip ation as a
member of the National Prison Rape Elimination Commission's Standards

Development Expert Committee; and testimony before a sub-committee of the
U.S. House Judiciary Commjttee relating to the Commjssion 's recommended
Standards.

The Human Rights Defense Center (HRDC) is a nonprofit charitable
corporation headquartered in Florida that advocates on behalf of the human rights
of people held in state and federal prisons, local jails, immigration detention

centers, civil commitment facilities, Bureau of Indian Affairs jaiUs, juvenile
facilit ies and military plisons. HRDC's advocacy effo1ts include publishing Prison
Legal News (PLN), a monthly publication that covers criminal justice-related news
and litigation nationwide, publishing and disttibuting self-help reference books for
p1isoners, and engaging in litigation in state and federal courts on issues
concerning detainees. PLN has reported extensively on the sexua I abuse of

prisoners by jail and prison staff. In addition, HRDC submitted comments to the
U.S. Department of Justice (DOJ) regarding the proposed P1ison Rape E limination
Act (PREA) standards in 2010 and 2011 to suppo1t the greatest possible

4

Case: 14-969

Document: 45

Page: 21

07/21/2014

1275958

40

protections for prisoners against being sexually assaulted and raped while m
custody.

Prisoners' L egal Services of New York (PLS) is a nonprofit o rganization
that h as provided civil legal services to indigent inmates in New York State
coITectionaJ facilities for over 38 years. PLS receives over 8,000 requests fo r

assistance annually and serves as legal counsel to imnates on a variety of claims in
the state and federal courts regarding condition s of confinement, including claims
of excessive force, sexual abuse, cruel and inhuman treatment, deliberate
indifference and violations of due process. PLS has a significant interest in
insuring that incarcerated ind ividuals are treated fairly and humanely and are free
from sexual abuse. As such, PLS was one of th e amici in Amador v. Andrews, No.
1:03- cv-00650, a case brough t by The Legal Ai d Society of New York challenging
state policies that allow sexual abuse of prisoners to continue.
The Uptown People's Law Center (UPLC) was fou nded in 1975 by former
coal miners and their widows in an effort to secure black lung benefits for disabled
coal miners. UPLC has been a leading voice for prisoner civil rights for over thirty
years. It actively represents prisoners in both class action matters as well as

indivjdual cases, including denial of adequate medical care, excessive force
matters, denial of religious rights, discriminatio n, access to the courts, due process
and cruel and un usual punishment. UPLC also engages in regular outreach to

5

Case: 14-969

Document: 45

Page: 22

07/21/2014

1275958

40

young people in the commtmity in an attempt to prevent them from becoming
involved in the c1iminal justice system.

ARGUMENT
In this case, the District Comt held, pursuant to a misinterpretation of this

Court's decision in Boddie v. Schnieder, that a corrections officer who on two
separate occasions "squeeze[d] and fondle(d]'" the two plaintiffs' penises, while

issuing threats and sexual comments and, in one case, "grabb[ing plaintiff] tightly
around his neck," did not commit sexual abuse in violation of the Eighth
Amendment because each was "only a single incident" and the plaintiffs did "not
allege physical injury, penetiation, or pain." Crawford v. Cuomo, No. 9:13-cv406, 2014 WL 897046, at *4-5 (N.D.N.Y. Mar. 6, 2014).

The Comt should take this opportunity to disavow the District Comt's
cramped understanding of cruel and unusual punishment and adopt the clear,
prevailing standard of what constitutes unacceptable sexual abuse in a prison or jail
reflected in contemporary federal and state law. Boddie does not support the

District Court's ruling and, even if it did, the Court would be compelled to
abandon Boddie by the evolution of the standard of decency that has taken place in
the seventeen years since that decision. By clarifying that any intentional contact
by a conections officer with a detainee's genitalia or other intimate areas, such as

the gi·oin, anus, breast, inner thigh or buttocks, that is unrelated to officiial duties or

6

Case: 14-969

Document: 45

Page: 23

07/21/2014

1275958

40

undertaken with the intent to abuse, arouse, or gratify sexual desire constitutes
cruel and unusual pun ishment, the Court would create an enforceable and coherent
bright-line rule defining the Eighth Amendment's prohibitions. The Court should
reverse the District Court's dismissal of the complaint in this action, which clearly
states a claim under the appropriate constitutional standard.

I.

Intentional Contacet With a Detainee's Genitalia Unrelated to a
Corrections Officer's Official Duties or Unde1·taken With Intent to
Abuse, Arouse, or Gratify Sexual Desire Is: Cruel and Unusual
Punishment.
Binding precedent and contemporary legislative enactments make clear that

the definition of unconstitutional sexual abuse in a prison or jail turns not on

penetration or physical injury but on whether the sexual contact is incidental to
legitimate duties- such as a pat-fiisk or strip search-or, by contrast, whether it is
undertaken with subjective intent to abuse the detainee or gratify the sexual desire

of the coITections officer. Boddie did not hold otherwise. If it had, it would have
to be abandoned iin light of contemporary standards of decency.
A. Binding PrecedentFrom the Supreme Court and This Com1 Defining "Cruel
and Unusual Punishment" Requires Adoption of the Rule Proposed by Amici
and Rejection of the District Court's Rule.
Relying on Boddie v. Schnieder, the District Comt found that the sexual
abuse alleged in this case did not state an Eighth Amendment claim because the
forcible groping of the plaintiffs' genitals, which allegedly went beyond what was
necessary to execute a legitimate pat-frisk search and was undertaken for the
7

Case: 14-969

Document: 45

Page: 24

07/21/2014

1275958

40

purpose of abusing the plaintiffs, involved no penetration of any body cavity and
did not result in p hysical injury.
As an initial matter, the District Court misread Boddie.

Boddie did not

establish a rule that physica] injury or penetration is required to state an Eighth
Amendment claim. No such holding-nor any words of that nature-appear in the

Court's decision. To the C{)ntrary, the Court in Boddie rightly acknowledged
sexual abuse is constitutionally cognizable not only when it leaves physical scars
or b1uises but also because of its psychological impact on the victim. Boddie, 105

F.3d at 861 ("Sexual abuse may violate contemporary standards of decency and
can cause severe physical and psychological harm.") (emphasis added). Boddie
established that a line exists between actionable "sexual abuse" and non-actionable

"isolated sexual harassment,.,, and classified the particular facts of that case as
falling into the latter category, but it did not create the categorical rnUe requiring
allegations of penetration or physical injury that the Dist1ict Court applied to the
facts of this case.2
Beyond Boddie, case law from the Supreme Court and this Cowi both before
2

Boddie also established that "severe or repetitive" sexual harassment by a corrections officer
can be "objectively sufficiently serious enough to constitute an Eigbtb Amendment violation."
Boddie, 105 F.3d at 861. This case does not call upon the Court to further define when a series
of acts of harassment, none of which standing alone would violate the Co nstitution, is
sufficiently "severe and repetitiven to amount to an Eighth Amendment issue. Instead, this case
asks the Court to hold that any single incident that in itself constitutes criminal sexual abuse and

a vioDation of federal law is sufficiently serious, standing alone, to constitute an Eighth
Amendment violation.

8

Case: 14-969

Document: 45

Page: 25

07/21/2014

1275958

40

and since Boddie underscores the error in the District Court's decision below and
makes it clear that the rnle proposed by Amici, not the District CoUJ1's rnle, is
correct. Whether behavior constitutes "cruel and unusual punishment" depends on

whether it was "objectively, sufficiently serious" and whether the defendant
subjectively had a "sufficiently culpable state of mind." Farmer v. Brennan , 51 l

U.S. 825, 834 (1994); see also Boddie, 105 F.3d at 861. Evaluating whether
intentional contact by a corrections officer with a detainee's genitalia or other
intimate areas was either unrelated to official duties or had the intent to abuse,

arouse, or gratify sexual desire properly turns on the objective circumstances of the
incident (i.e., did the corrections officer touch particular areas of the body) and the
subjective purpose or intent of the officer (i.e., was the touching Uegitimately

related to official duties or, by contrast, undertaken with intent to abuse, arouse, or
gratify sexual desire).
The exemption for touching related to official duties also aligns with the
long-standing principle that the Eighth Amendment prohibits unnecessa1y and
wanton acts- punishment that is "so totally without penological justification that it
results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153,

183 ( 1976). And the inclusion of any touching that has the subjective intent to
abuse the victim or arouse or gratify the perpetrator's sexual desire compo11s with
the Supreme Cow1's clear h-0ldjng that "[w]hen prison officials maliciously and
9

Case: 14-969

Document: 45

Page: 26

07/21/2014

1275958

40

sadisticall y use force to cause harm, contemporary standards of decency always are
violated." Hudson v. McMillian, 503 U.S. 1, 9 (1992). Indeed, after Boddie, in a
case pertaining to sexual abuse in prisons, this Court recognized that these
factors- and not the question of injury caused by the punishment- are the proper
relevant factors in definjng whether conduct is cruel and unusual. In United States

v. Walsh, this Court noted that whether the behavior alleged was "purely
unwaffanted and served no penological purpos.e weighed in favor of the cause of
action, not against it" because "it is the sadistic and unwananted nature of the

behavior, beyond what society expects its criminals to endure as punishment for
their misdeeds, that renders the punishment ' cruel and unusual."' 194 F .3d 3 7, 49
& n.8 (2d Cir. 1999).

A rule requiting plaintiffs to allege physical injury to state a claim for sexual
abuse would be directly contrary to the Supreme Comt"s decision in Hudson,
which held that when "prison officials maliciously and sadistically use force to
cause harm," the Eighth Amendment is violated "whether or not significant injwy
is evident. Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary

quantity of injury." 503 U.S. at 9; see also Hudwn v. Palmer, 468 U.S. 517, 530
(1984) (calculated harassment unrelated to prison needs may constitute c1uel and
unusual punishment). As held by the Supreme Court, the linchpin of the inquiry is
10

Case: 14-969

Document: 45

Page: 27

07/21/2014

1275958

40

the subjective motive and whether the acts are penologically justified, as Amici
argue here.

Thus, the District Court's reading of a requirement to establish penetration
or physical injury into this Comt's decision in Boddie was contrary to Boddie and
other controlling caselaw. The Court should explicitly reject such a ruJe and adopt,

instead, the clear and legally compelled rule articulated by Amici.
B~

"Contemporary StandaTds of Decency" Require the Court to Adopt the Rule
Proposed by Amici and Reject the Disttict Court's Rule.
Even if Boddie had announced a rule that penetration or physical injury is

required to state a claim of unconstitutional sexual abuse, this Court must still

detennine whether societal expectations and standards regarding sexual abuse in
prisons and jails have changed in the seventeen years since Boddie was decided.
They have.

Federal and state laws are consistent in their prohibition of any intentional
contact by a corrections officer with an inmate' s genitalia or other intimate areas
either (a) that is umelated to official duties or (b) where the officer has the intent to
abuse, arouse, or gratify sexual desire.

Given this nationally unifonn societal

standard and the consistent state-level trend that preceded its codification in federal
law, there can no longer be any doubt that the conduct at issue in this case violates

contemporary standards of decency.
"To determine whether a punishment is cruel and unusual, coUits must look
11

Case: 14-969

Document: 45

Page: 28

07/21/2014

1275958

40

beyond historical conceptions to ' the evolving standards of decency that mark the
progress of a maturing society. ',, Graham v. Florida, 560 U.S. 48, 58 (2010)

(quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). "This is because the
standard of extre1ne cruelty is not merely descriptive, but necessarily embodies a
moral judgment. The standard itself remains the same, but its applicability must
change as the basic mores of society change.,, Id. ( internal quotation and citation
omitted). Cruel and unusual punishments consist of behavior that is "unconsistent
with contemporary standards of decency and repugnant to the conscience of
mankind." Whitley v.

Albers~

475 U.S. 312, 327 ( 1986) (quoting Estelle, 429 U.S.

at 103).
In defining "contemporary standards of decency," the Court must look to

"objective indicia of consensus, as expressed in pai1iculai· by the enactments of
legislatures that have addressed the question . _ . for essential instn1ction." Roper
v. Simmons, 543 U.S. 551 , 564 (2005); see also Atkins v. Virginia, 536 U.S. 304,

311- n2 (2002) ("[T]he clearest and most reliable objective evidence of
contemporruy values is the legislation enacted by the country's legislatures.,,).
Both a high nun1ber of legislative enactments prohibiting certain conduct and a

consistent trend toward prohibition strongly indicate that contemporary standards
of decency have evolved to classify that conduct as "cruel and unusual." Roper,

543 U.S. at 565-67 (holding that the rejection of the juveni le death penalty "in the
12

Case: 14-969

Document: 45

Page: 29

07/21/2014

1275958

40

majority of states" as well as the "consistency of the direction of change" toward
abolition establish ed that the practice violated the Eighth Amendment).

Federal regulations promulgated pursuant to the Prison Rape Elimination
Act (((PREA'') in 2012 mandate that all correctional facilities in the United States
adopt and enforce a "zero tolerance" policy "toward all fonns of sexual abuse." 28

C.F.R. § 115.11 (a). PREA's regulations have several definitions of what
constitutes sexual abuse and include "[a]ny ... intentional contact, either directly
or thr ough the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or

the buttocks, that is unrelated to official duties or where the staff member ... has
the intent to abuse, arouse, or gratify sexual desire."

28 C.F.R~ § 115.6. 3

"Termination shall be the presumptive discipl inary sanction for staff who have
3

The rule proposed by Amici is not intended to exhaust the subject of prison sexual abuse. PREA
reflects the contemporary standards of decency relating to sexual abuse in prisons and conduct
that violates PREA should be actionable under the Eighth Amendment. For instance, PREA' s
regulations also define sexual abuse to include "[c]ontact between the mouth and any body part
where the staff member . . . has the intent to abuse, arouse, or gratify sexual desire" and "[a]ny

display by a staff member . . . of his or her uncovered genitalia, buttocks, or breast in the
presen ce of an inm~te, detainee, or resident." 28 C.F.R. § 1J 5.6. AEthough these b ehaviors are
not at issue io the instant case, they should also constitute conduct actionable und er the Eighth
Amendment. Cf Amador v. Smith, No. 10-cv-06702 (W.D.N.Y. May 9, 2013) (order denying
motion for summary judgment w here female prisoner alleged a series of "esca lating sexually

offens ive behavior" by a male officer that included sexual comments, kisses, exposure of bis
genitalia, and touching of her breasts and buttocks). By contrast, otber courts, relying upon
Boddie in the same erroneous manner that the district court did here, have rejected s imilar acts as
the ba sis for an Eighth Amendme11t claim. See, e.g., Joseph v. U.S. Fed. Bureau of Prisons, 232

F.3d 901, 902 (10th Cir. 2000) (unpublished decision) (citing Boddie for the proposition that a
correc tions officer who " touched [plaintiff] several times in a suggestive manner and exposed
ber breasts" to an inmate did not state an Eighth Amendment claim because of the lack of
physical injury). The fact that the gap is so large b etween what prevailing law defines as
unacceptable and w hat district courts have found to be constitutionaUy unacceptable provides
additional reason for this Court to correct the record on Boddie.

13

Case: 14-969

Document: 45

Page: 30

07/21/2014

1275958

40

engaged in sexual abuse" and all such tem1inations "shall be reported to law
enforcement agencies, unJess the activity was dearly not criminal." 28 C.F.R. §

l 15.76(b), (d).

The federal government also makes any non-consensual "sexual

contact', in a federal prison a felony punishable by up to two years in prison, where
"sexual contact" is defined as "the intentional touchjng, either directly or through

the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any
person with an intent to abuse, humjliate, harass, degrade, or arouse or gratify the
sexual desire of any person." 18 U.S.C. §§ 2244(b), 2246(3).

The New York Penal Law- in provisions enacted three years after Boddiemirrors the language of PREA. The Penal Law classifies as Class A misdemeanors
both "Forcible Touching" and " Sexual Abuse in the Second

Degree.·~

"Forcible

Touching" occurs when a "person, intentionally and for no legitimate purpose,
forcibly touches the sexual or other intimate parts of another person for the purpose
of degrading or abusing such person; or for the purpose of gratifying the actor's
sexual desire." N.Y. Penal Law § 130.52. "Sexual Abuse in the Second Degree"
is when a person "subjects another person to sexual contact ... when such other
perso-n is incapable of consent by reason of some factor other than being less than

seventeen years old," and further provides that any incarcerated person is
inherently "incapable of consent." Id. §§ 130.60, 130.05(3)( e), (f).
New York is no outlier in this regard. Forty-six states and the District of
14

Case: 14-969

Document: 45

Page: 31

07/21/2014

1275958

40

Columbia criminalize the intentional or forcible touching of intimate body parts,
often in criminal statutes specifically targeting the prison or jail context.4 (The
only exceptions are Mississippi, Oklahoma, FloTida and Vermont.)
The District Court's limited definition of unconstitutional sexual abuse is
inconsistent with contemporary standards of decency as defined by PREA and state

criminal laws. For that reason, the Com1 should reverse the District Comt's
dismissal of the Plaintiffs' Eighth Amendment claims and hold, as a rUJJe, that any
intentional contact by a corrections officer with an inmate's genitalia or other

intimate areas that is either unrelated to official duties or involves the intent to
abuse, arouse, or gratify sexual desire meets the standard for unconstitutional
sexual abuse.

4

See A la. Code§ 14-11-31; Alaska Stat.§ 11.41.427; Ariz. Rev. Stat. Ann.§ 13-1419; Ark.

Code Ann. § 5-1 4-127(a)(2); Cal. Penal Code§ 289.6; Colo. Rev. Stat.§§ 18-7-701 , 18-3-404;
Conn. Gen. Stat. §§ 53a-73a; Del. Code. Ann. tit. 11 , § 769; D.C. Code § 22-3014; Ga. Code
Ann.§ 16-6-5.1 ; Haw. Rev. Stat. §707-732(e); Idaho Code Ann.§ 18-6110; 720 fll. Comp. Stat.
Ann. 5/ 11-9.2; Ind. Code Ann.§ 35-44. 1-3- 10; Iowa Code 709. 16; Kan. Stat. Ann. § 21-55 12;
Ky. Rev. Stat. Ann . §§ 5 10.120, 5 10.020; La. Rev. Stat. Ann.§ 14: 134.1; Me. Rev. Stat. Ann.
Tit. 17-A, § 255-A; Md. Code Ann. Crim. Law§ 3-314; Mass. Gen. Laws ch. 268, § 21A; Mich.
Comp. Laws § 750.520b; Minn_ Stat. Ann. § 609.345(l)(m); Mo. Rev. Stat. §§ 566.101 ,
566. 145; Mont. Code Ann. § 45-5-502; Neb. Rev. Stat. Ann. § 28-3 22; Nev. Rev .. Stat. Ann. §
212.187; N.H. Rev. Stat. Ann. §§ 632-k2(I)(n)(l), 632-A:4; N.J. Stait. Ann. §§ 2C~ 14-2, 2C: 143; N .M . Stat. Ann.§ 30-9-12; N.C. Gen. Stat.§ 14-27.5A; N .D. Cent. Code§ 12. 1-20-07; Ohio
Rev. Code. Ann. §§ 2907.03, 2907.06; Or. Rev. Stat. Ann. § 163 .454; 18 Pa. Cons. Stat. §
3 124.2; R. I. Gen. Laws§ 11-37-4 ; S.C. Code Ann.§ 44-23-l l50(c)(2); S. D. Codifi ed Laws§
22-22-7.4; Tenn. Code Ann. §39-16-408; Tex. Penal Code Ann. § 39.04; Utah Code Ann. § 765-412(4), (5); Va Code. Ann.§§ 18.2-67.4, 18.2-67.10; W. Va. Code Ann.§§ 61-8B-2, 61-8B-7;
Wash. Rev. Code Ann. § 9A.44. l 70; Wis. Stat. Ann. § 940.225(2); Wyo. Stat. Ann. § 6-2-303.

15

Case: 14-969

TI.

Document: 45

Page: 32

07/21/2014

1275958

40

The Standard Proposed by Amici I s Necessary to Bring Humanity,
Coherence and Consistency to Eighth Amendment Law Governing
Sexual Abuse in Prisons and Jails.
The rule proposed by Amici- that unconstitutional sexual abuse should be

defined as any intentional contact by a conections officer with a detainee's
genitalia or other intimate areas that is either unrelated to official duties or where

the officer has the intent to abuse, arouse, or gratify sexual desire- is not only
compelled by the Supreme Court, this Court's precedent defining cruel and
unusual punishment, and contemporary standards of decency. It is also compelled
by the need to make the law defining unconstitutional sexual abuse consistent,

rational, and predictable both by lower court judges called upon to interpret it and
corrections officers called upon to comply with it. The persistence of the flawed

notion that sexual abuse is defined by whether the plaintiff can show penetration or
physical injury bas resulted in incoherent rulings among New York's federal
district courts and among the federal circuits and in the improper dismissal of cases
alleging egregious instances of sexual abuse in prisons and jails.
The District Court in this case is not alone in misinterpreting Boddie to
categorically exclude from the Eighth Amendment's reach instances of sexual

abuse that do not involve penetration of a body cavity or physical injury. Several
district comts in this Circuit have made the same mistake, often in cases where the
sexual abuse alleged is shocking to the conscience and utterly inconsistent with the
16

Case: 14-969

Document: 45

Page: 33

07/21/2014

1275958

40

punishment we expect the incarcerated to endure. See, e.g., Jones v. Rock, No.

9: 12-CV-0447, 2013 WL 4804500, at *3-4, 18-20 (N.D.N.Y. Sept. 6, 2013) (citing
Boddie and finding that allegations that a coITections officer "shoved his fingers

between Plaintiff's buttocks with such force that one of bis fingers, along with
Plaintiffs pants and unde1wear, invaded Plaintiffs anus," "groped Plaintiffs

genitals and squeezed them until Plaintiff cried out in pain" while threatening
plaintiff and taunting him for being a virgin, failed to state a claum because
"Plaintiff has not alleged that he sustained any physical injury as a result");

Samuels v. Strange, No. 3:08-CV-1872, 2012 WL 4754683,, at *2-4 (D. Conn. Oct.
4, 201 2) (finding that allegations that a corrections officer pulled down plaintiff's
pants and fondled his genitals for an extended period of time failed to state a claim

because, citing Boddie, " not all sexual assaults of a prisoner by a guard or
corrections officer violate the Eighth Amendment"); Castro-Sanchez v. N Y.S.

Dep't of Corr. Servs. , No. 10 Civ. 83 14, 2012 WL 4474154, at *1 -3 (S.D.N.Y.
Sept. 28, 2012) (citing Boddie and finding that allegations that a corrections officer
"pulled down plaintiffs pants and groped his buttocks" while laughing and using
the term "Pue1to Rican motherfucker" did not state a claim); McEachin v. Bek, No.

06-CV-6453, 2012 WL 111 3584, at *6 (W.D.N.Y. Apr. 2, 2012) (relying on
Boddie to conclude that allegations that a coITections officer "tried to stick his
fingers in [plaintiffs] rectum" while punching him in the head while he was

17

Case: 14-969

Document: 45

Page: 34

07/21/2014

1275958

40

handcuffed did not state a claim because it was an " isolated incident, which did not
involve actual penetration"); Sanders v. Gifford, Civ. No. 9: ll-cv-0326, 2011 WL
1792589, at

* 1-2

(N.D .N.Y . Apr. 5, 20 11) (finding that allegations that a

con-ections officer "grabbed [plaintiff's] scrotum and squeezed hard" and " took his
ID card and swiped it in between Plaintiffs buttocks" failed to state a claim
relying on Boddie); lrvis v. Seally, No. 9:09-CV-543, 2010 WL 5759149, at *l , 4

(N.D_N.Y. Sept. 2, 2010) (relying on Boddie to find that allegatuons that a
conections officer, on one occasion, forced plaintiff to "bend at the waist," and

"spread [his] butt cheeks" while the officer was "rubbing his crotch," and on
another occasion "grabbed plaintiff's naked butt cheek while stroking [the
officer's] exposed penis with his other hand'" did not state a claim); Holton v.

Moore, No. CIV.A.96CV0077, 1997 WL 642530, at * I-2 (N.D.N.Y. Oct. 15,
1997) (citing Boddie and finding that allegations that a c01Tections officer "put his

hands down [plaintiff's] pants trying to pa11 his cheeks coming in touch with his
anal" and ''unzipped [plaintiffs] pants and touched his penis" did not state a
claim).

Other federal circuits- specifically , the Fifth, Sixth and Eleventh

Circuits- have also relied on Boddie to limit the scope of the Eighth Amendment

and dismiss claims alleging similar unconscionable facts. 5

5

See Solomon v. Mich. Dep 't of Corr. , 478 F. App 'x 318, 320-2 1 (6th Cir. 2012) (unpublished
decision) (citing Boddie for the proposition that a corrections officer who "pressed bjs erect penis
into [plaintiffs] buttocks during a search and made sexually suggestive remarks about

18

Case: 14-969

Document: 45

Page: 35

07/21/2014

1275958

40

These courts' decisions not only extend Boddie far beyond its actual holding
but also are, for the reasons stated above, inconsistent with this Court's and the
Supreme Comt's interpretation of the Eighth Amendment.

The fact that these

misapplications of Boddie have had such widespread influence reinforces the need
for this Court to clarify its ruling and b1ing this Circuit 's Eighth Amendment

jwisprudence back in line with contemporary constitutional n01ms.
These couTts' interpretations of Boddie are not only wrong, they have
created a split both within this Circuit and among the federal appellate comts on

the definition of unconstitutional sexual abuse in prisons and jails. Several other
New York district courts- as well as the Seventh, Eighth, and Ninth Circuitshave defined unconstitutional sexual abuse consistently with PREA and the

defin]tion of c1iminal sexual abuse and rejected a rule that turns on the question of
penetration or physical injury, resulting in a body of case law that is in-econcilable

[plaintiffs] buttocks" did not violate the constitution); Boxer Xv. Han·is, 437 F.3d 1107, 111 l
(11th Cir. 2006) (citing Boddie for the proposition thatt: a corrections. officer' s solicitation of an
inmate ' s "manual masturbation . . . under the threat of reprisal" did not state a claim);
Washington v. Harris, 186 f . App'x 865, 865-56 (I 1th Cir. 2006) (unpublished decision)
(holding that a corrections officer who "crept up behind" an inmate, grabbed his genitals, kissed
him aod threatened to perform oral sex on him did not state a claim); Jackson v. Madery, 158 F.
App 'x 656, at 661 (6th Cir. 2005) (unpublished decision) (citing Boddie for the proposition that

allegations of a corrections officer "rubbing and grabbing [plaintifFs] buttocks in a degrading
and humiliating manner . . . does not rise to the level of cruel and unusual punishment under the
Eighth Amendment" ); Copeland v. Nunan, 250 F.3d 743 (5th Cir. 2001) (unpublished decision)
(citing Rnddie for the proposition that a prison employee w ho fondle<l plaintiff's penis and anus

on three occasions did not state a claim because it was not a " violent sexual assault', and plaintiff

had not alleged "lasting physical injury").

19

Case: 14-969

Document: 45

with the cases previously c ited.6

Page: 36

07/21/2014

1275958

40

This Col!.lrt should follow the compelling

reaso ning of these courts and define unconstitutional sexual abuse in a prison or
jail in a manner consistent with contemporary standards of decency, bringing
clarity to the law within the Second Circuit and contributing to the resolution of the
split among the federal appellate cou11s.

A rule that any intentional contact by a conections officer with a detainee's
gen1talia or other intimate areas that is either unrelated to official duties or done
with the intent to abuse, arouse, or gratify sexual desire violates the Eighth

Amendment creates a bright line already familiar to correctional institutions, which
are under an existing legal obligation to comply with PREA. Individual corrections
6

See, e.g. , Amador v. Smith, No. IO-CY-06702 (W.D.N.Y. May 9, 20 13) (holding that
allegations that a corrections officer fondled plaintiff's breasts and forcibly kissed her, while
making sexual cormnents, stated a claim); Lewis v. Fischer, No. 08-CV-3027, 2009 WL 689803,
at *1-2 , 4-6 (E.D.N. Y. Mar. 12, 2009) (holding that allegations that a corrections officer in the
course of a pat-frisk "put[] his hand into [plaintiff's] pants and fond![ ed] his penis and
squeeze[ed] his testicles" stated a claim); Doe v. Barrell, No. 3:01-CV-519, 2006 WL 3741825,
at *I , 10 (D. Conn. Dec. 19, 2006) (holding that allegations that a prison doctor "forc[ed

plaintiffJ into a chair, pulling down his pants and touching his genitals" stated a claim);
Rodriguez v. McC!enning, 399 F . Supp. 2d 228, 232, 237-38 (S.D.N.Y. 2005) (holding that
allegations that a corrections officer "conducted the pat-frisk in an inappropriate manner that
included caressing [plaintiffs] chest and repeatedly groping his genitals and buttocks" stated a
claim) ; Calhoun v. DeTel!a, 3 19 F.3d 936, 938-40 (7th Cir. 2003) (holding that allegations that a

corrections officers forced plaintiff to perform "provocative acts" while they made ·~sexual ribald
comments" during a strip search stated a claim notwithstanding the lack of penetration or
physical injury); Williams v. Prudden, 67 F. App'x 976, 977 (8tll Cir. 2003) (unpublished
opinion) (holding that allegations that a corrections officer " ground his pelvis against [plaintiff],

grabbed her breast" :and verbally harassed plaintiff stated a claim notwithstanding lack of alleged
penetration or physical injury); Schwenk v. Hartford, 204 F.3d 1187, 1196-98 (9th Cir. 2000)
(noting the N inth Circuit' s longstanding rule that "no lasting physical injury is necessary to state
a cause of action" and upholding a claim based on allegat1ons that a corrections officer requested
oral s,e x, groped plaintiffs buttocks and pressed his penis into plaintiffs clothed buttocks

without penetration).

20

Case: 14-969

Document: 45

Page: 37

07/21/2014

1275958

40

officers are trained on PREA's provisions 7 and are on notice that the same
behavior that would expose them to constitutional liability under the proposed rule
already exposes them to criminal liability in New York and the vast majority of
other jurisdictions.
The proposed rule is also consistent with coITections officers' responsibility

to perlorm pat-down and strip searches for legitimate penological purposes. The
rule does not make every touching of an inmate's genitals or other sensitive body
parts unconstitutional. It requires a plaintiff to prove that such touching was either

unrelated to the coITections officer's official duties or undertaken with intent to
abuse, arouse, or gratify sexual desire. Cf 28 C.F.R. § 115.6 (requiring these
elements under PREA); N.Y. Penal Law§ 130.52 (requiring proof that the forcible

touching was conducted for no legitimate purpose and for the purpose of degrading
or abusing the v ictim).

Requiring plaintiffs to meet th is burden ensures that

incidental or legitimate touching in the course of a penologically justified search
could not subject a coITections officer or institution to liability, just as such
conduct does not violate PREA or state criminal laws.8

7

Indeed, given the

PREA requires that correctional institutions train officers and staff on the law's provisions and

the institution 1s policies to prevent instances of sexual assault and abuse. See 28 C.F.R. §§
11 5.31-35.
8

For example, a number of courts have dismissed Eighth Amendment claims predicated solely
on allegations of touching plaintiffs' genitals in the context of a pat-frisk or strip search, where

the plaintiff had not alleged facts tllat would support a conclusion that the touching was unrelated
to the search. See, e.g., Williams v. Filch, 550 F. Supp. 2d 413 (W.D.N.Y. 200 8) (granting

21

Case: 14-969

Document: 45

Page: 38

07/21/2014

1275958

40

incoherent state of this Circuit's district court jurisprudence, clarification of the
definjtion of unconstitutional sexual abuse and adoption of the clear rule advocated
by Amici would be likely to d iscow·age the filing of claims against con-ections

officers who are merely executing lawful searches by making clearer what facts
must be pied to state a claim under the Eighth Amendment.

CONCLUSIO N
For the for egoing reasons, the Court should reverse the District Court's
dismissal of Plaintiffs, complaint and adopt a iule that any intentional contact by a
coITections officer with a detainee's genitalia or other intimate areas that is either
unrelated to official duties or done with the intent to abuse, arouse:) or gratify
sexual desire constitutes cruel and unusual punishment.

summary judgment where corrections officer "handl[ ed] the tip of [plaintiffs] penis,, in the
course of a body cavity search, where X-rays showed the presence of a metal object secreted in
the plaintiffs foreskin); Hany v. Suarez, No. I 0 Civ. 6756, 2012 WL 2053533 (S .D.N.Y. June
4, 201 2) (dismissing complaint where plaintiff alleged solely that corrections officer " placed one
of his hands" on plain tiffs genitals "for five to six seconds" in the course of a pat-frisk search);
Johnson v. Enu, No . 08-CV- 158, 2011 WL 3439179, at * 13-15 (N. D.N.Y. July 13, 201 I)

(dismissing a complaint stating that a corrections officer's "hands bad come into contact with
[plaintiffs] groin area while secur ing [plaintiff] for transport"); Montero v. Crusie, 153 F. Supp.

2d 368, 373, 375 (S.D.N.Y. 2001 ) (dismissing complaint alleging solely tha.t on several
occasions a corrections officer touched plaintiffs genitalia in cou rse of pat-frisk searches);
Hughes v. Smith, 23 7 F. App' x 756, 759 (3d Cir. 2007) (dismissing a claim predicated solely on
allegat ions of "a single pat-down frisk in which the correctional officer allegedly touched

[plaintiffs] testicles through his clothing"). Such results would be entirely consistent with the
rule advocated by Amici in this case.

22

Case: 14-969

Dated:

Document: 45

Page: 39

07/21/2014

1275958

40

July 21 , 2014

New York, N.Y.
Isl Erin Beth Harrist
E RIN BETH HARRIST

COREY STOUGHTON
CHRISTOPHER DUNN
New York Civil Liberties Union Foundation
125 Broad Street , 19th Floor
New York,, NY 10004
(212) 607-3300
eharrist@ nyclu.org

23

Case: 14-969

Document: 45

Page: 40

07/21/2014

1275958

40

CERTIFICATE OF COMPLIANCE

I hereby ce1tify that this brief, according to the word-processing program
with which it was prepared, complies with Rule 32(a)(7) of the Federal Rules of
Appellate Procedure in that it contains a total of 6, 108 words.

Isl Erin Beth Harrist
ERIN BETH HARRIST