United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
Heyward-Jones, proceeding pro se and in forma
pauperis, brings this 42 U.S.C. § 1983 Complaint
against Officer Reid, of the Chatham County Sheriff's
Office, Sheriff John Wilcher, and the Chatham County
Sheriff's Office. Doc. 1. The Court granted
plaintiff's Motion for Leave to proceed in forma
pauperis (IFP), doc. 3, and he has provided all
requested documentation, docs. 4-6. The Court now screens the
Complaint pursuant to 28 U.S.C. § 1915A.
February 2019, defendant Officer Reid entered plaintiff's
cell at the Chatham County Jail while plaintiff was
undressed. Doc. 1 at 5. Officer Reid “squeezed
[plaintiff's] backside in a sexual manner.”
Id. Plaintiff objected to the touching and was
pushed to the ground, injuring his back and left elbow.
Id. Officer Reid then made “threatening
remarks” as he exited the cell. Id. Plaintiff
reported the incident through the Prison Rape Elimination Act
(PREA) process and to jail officials more senior than Officer
Reid. Id. Five days after the incident, Officer Reid
was again working in the same area of the jail as
plaintiff. Id. at 5-6. Plaintiff alleges
that he has been traumatized by the situation, showers in his
underwear and refuses to eat food provided by the jail.
Id. at 6. Liberally construing plaintiff's
complaint, he brings claims for violations The Court applies
Federal Rule of Civil Procedure 12(b)(6) standards in
screening a complaint pursuant to § 1915A, Leal v.
Ga. Dep't of Corr., 254 F.3d 1276, 1278-79 (11th
Cir. 2001). In doing so, allegations in plaintiff's
Complaint are taken as true and construed in the light most
favorable to him. Bumpus v. Watts, 448 Fed.Appx. 3,
4 n.1 (11th Cir. 2011). Conclusory allegations alone,
however, are not sufficient. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (discussing a Rule 12(b)(6) dismissal).
of the Eighth Amendment against Officer Reid and failure to
protect against Sheriff John Wilcher and the Chatham County
abuse of an inmate by corrections officials can be cognizable
under § 1983 as a violation of the Eighth Amendment.
Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir.
2006); see also Boddie v. Schnieder, 105 F.3d 857,
860-61 (2d Cir. 1997). (“[S]exual abuse of a prisoner
by a corrections officer has no legitimate penological
purpose, and is simply not part of the penalty that criminal
offenders pay for their offenses against society.”).
This requires both an objective element-“that the
injury be objectively, sufficiently serious”-and a
subjective element- that “the prison official have a
sufficiently culpable state of mind.” Boxer X,
437 F.3d at 1111 (internal quotations and citations omitted).
Though the subjective element-a culpable state of mind-can be
inferred from the alleged sexual conduct, plaintiff has
failed to adequately allege an “objectively,
sufficiently serious” injury. See Allen v.
McDonough, 2011 WL 4102525 *5 (N.D. Fla. Aug. 17, 2011)
(“The culpable state of mind of the corrections
officer, the second component, may be inferred from the act
of sexual abuse . . . .”). An “objectively,
sufficiently serious” injury must be more than de
minimis. Boxer X, 437 F.3d at 1111 (a female
corrections officer's solicitation of a male
prisoner's manual masturbation, even under the threat of
reprisal, does not present more than de minimis
injury); see also Brown v. Smith, 2006 WL 1890192 *5
(M.D. Ga. July 10, 2006) (repeated touching of an
inmate's genitals and forced sexual intercourse with
corrections officers was deemed objectively, sufficiently
objectively, sufficiently serious standard typically requires
more than an isolated incident of non-severe sexual
harassment. See Washington v. Harris, 186 Fed.Appx.
865, 866 (11th Cir. 2006) (allegations of momentary pain,
“psychological injury, ” embarrassment,
humiliation, and fear due to an officer's inappropriate
touching were de minimis injuries); Mathager v.
Coleman, 2012 WL 2872644 *3 (S.D. Ga. June 15, 2012)
(recommending dismissal of a sexual abuse claim resulting
from a corrections official's single request for a sexual
act, which was refused by the plaintiff); Boddie,
105 F.3d at 861 (“isolated episodes of harassment and
touching . . . do not involve a harm of federal
constitutional proportions”). Plaintiff has alleged
only a single incident of unwanted touching and threatening
language. Doc. 1 at 5. Though he has alleged that the
incident has left him afraid, he has not suggested a
continuing threat of a similar assault. Doc. 1 at 6. As such,
the claim of sexual assault does not rise to the level of a
Constitutional violation cognizable under § 1983 and
should be DISMISSED.
construed, plaintiff's Complaint also alleges an
excessive use of force claim against Officer Reid. In a
custodial setting, the use of force is legitimate when
applied “in a good faith effort to maintain or restore
discipline [and not] maliciously and sadistically to cause
harm.” Skritch v. Thornton, 280 F.3d 1295,
1300 (11th Cir. 2002). Not every malevolent touch by a
corrections officer offends the Eighth Amendment, however,
“when prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency always
are violated.” Hudson v. McMillan, 503 U.S. 1,
9 (1992) To determine whether force was applied
“maliciously and sadistically, ” courts consider
the following factors: “(1) the extent of injury; (2)
the need for application of force; (3) the relationship
between that need and the amount of force used; (4) any
efforts made to temper the severity of a forceful response;
and (5) the extent of the threat to the safety of staff and
inmates, as reasonably perceived by the responsible officials
on the basis of facts known to them.” Campbell v.
Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999).
Reid pushed plaintiff to the ground, causing unspecified
injuries to his back and left elbow. Doc. 1 at 5. Typically,
a push or shove that does not result in a discernable injury
does not rise to the level of a Constitutional violation.
See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). The
Complaint is vague as to the extent of the injury suffered,
but even the allegation of no more than a de minimis
injury does not preclude an excessive force claim, as the
focus of the Court's consideration is not on the extent
of the injury, but, rather, the nature of the force applied.
Id. at 39 (noting that the degree of injury is
relevant to the extent that it can inform the Court's
understanding of if the force was applied maliciously and
sadistically to cause harm or in a nontrival way). A de
minimis use of force can qualify as excessive if it is
“a sort repugnant to the conscience of mankind.”
Hudson, at 9-10 (“The Eighth Amendment's
prohibition of cruel and unusual punishments necessarily
excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not
of a sort repugnant to the conscience of mankind.”
(internal quotations omitted)); see, e.g., Stallworth v.
Tyson, 578 Fed.Appx. 948, 954 (11th Cir. 2014) (spraying
a prisoner through the feeding flap on a cell door in
retaliation for filing a grievance could be repugnant to the
conscience of mankind.)
the facts alleged in the Complaint as true, the Court cannot
see any good-faith need for the force that was applied.
Though plaintiff does concede that he pushed Officer
Reid's hand from his body, he was acting in response to
an allegedly unlawful and threatening act. Doc. 1 at 5.
Furthermore, there is no indication that this resistance
presented a threat to Officer Reid's safety or could have
been perceived as such. Though it is not possible to discern
from the Complaint whether the injuries suffered were more
than de minimis, the use of force in furtherance of
a sexual assault or to subsequently intimidate the victim is
of the “sort repugnant to the conscience of
mankind.” More so when the force has no apparent
penological purpose. See Hope v. Pelzer, 536 U.S.
730, 737 (2002) (“[a]mong unnecessary and wanton
inflictions of pain are those that are totally without
penological justification.” (internal quotations and
citations omitted)). Therefore, the claim of excessive force
survives the Court's screening.
Sheriff John Wilcher
liberally construed, plaintiff's failure to protect claim
against Sheriff Wilcher fails. Section 1983 claims require an
allegation of a causal connection between a defendant's
acts or omissions and the alleged constitutional deprivation.
See Zalter v. Wainwright, 802 F.2d 397, 401 (11th
Cir. 1986) (defendant's position as Secretary of the
Florida Department of Corrections was not alone sufficient to
establish a causal connection to plaintiff's sexual
assault). Plaintiff's Complaint suggests, at most, that
Sheriff Wilcher was negligent in allowing the alleged sexual
assault to occur and subsequently allowing Officer Reid to
work near the Plaintiff. Doc. 1 at 5. This alone is not
sufficient as theories of respondeat superioror and
vicarious liability cannot carry § 1983 claims. See
Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)
(“Section 1983 will not support a claim based on a
respondeat superior theory of liability.”);
Monell v. Dep't of Soc. Servs. of New York, 436
U.S. 658, 691 (1978) (“Congress did not intend
municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a
constitutional tort.”); Brown v. Crawford, 906
F.2d 667, 671 (11th Cir. 1990) (“Supervisory liability
occurs either when the supervisor personally participates in
the alleged constitutional violation or when there is a
causal connection between actions of the supervising official
and the alleged constitutional deprivation.”).
officials, acting in their official capacity can, however, be
held liable under § 1983 if they have adopted a policy
or custom that directs the unconstitutional deprivation of
rights. Brown v. Neumann, 188 F.3d 1289, 1290 (11th
Cir. 1999). Plaintiff has not alleged that Sheriff Wilcher
was directly responsible for the assignment of jail staff, or
even aware of the alleged incident, and he has not alleged
that there was a policy or custom that facilitated the ...