On June 22, 2016, United States District Court Judge Sean F. Cox of the Eastern District of Michigan issued an order adopting a magistrate's recommendation to deny a motion to dismiss filed by a prison doctor who is being sued by two prisoners for sexual misconduct.

Plaintiffs Neil Emory and Ryan Burgdorf -- who are prisoners at the Central Michigan Correctional Facility -- filed suit under 42 U.S.C. Sect. 1983 against Joseph R. Burtch, a prison doctor at the facility. The suit alleges that Burtch sexually abused them during a medical visit when Burtch "brought his penis in contact with their knees, moved his hips from left to right, and became sexually aroused."

Burtch filed a motion to dismiss the claim, asserting that a "single incident" of alleged sexual abuse did not rise to the level of an Eighth Amendment violation, and that Burtch's conduct was "innocent or inadvertent." Burtch also said his conduct was not "sufficiently serious" or even sexual because neither plaintiff verbally objected to his conduct, and because Burtch made contact with their knees, not their genitals. The court rejected all of these arguments and denied Burtch's motion.

"A single incident of sexual abuse, if sufficiently severe or serious, may violate an inmate's Eighth Amendment rights no less than repetitive abusive conduct," the court wrote, citing to Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). "Sexual abuse of prisoners, once passively accepted by society, deeply offends today's standards of decency," the court said in finding the allegation sufficiently serious to state an Eighth Amendment claim.

The court also held that Burtch failed to cite any authority or precedent for the proposition that his conduct was not suffiently serious because he didn't make contact with the prisoner's genitals, and because the prisoners failed to verbally object to his actions. "Such a proposition is untenable," wrote the court.

Finally, the court rejected Burtch's assertion that sufficient evidence of his intent did not exist because he made no verbal statement of intent to the prisoners. Burtch said that the prisoners could not show how "becoming aroused or erect demonstrates the subjective intent to gain sexual gratification," and that his conduct was therefore innocent or inadvertent. The court ruled no verbal statement of intent is required to satisfy the subjective prong of the Eighth Amendment, and that Burtch's remaining arguments are questions of fact and/or credibility which are not properly resolved by the court. See: Emery and Burgdorf v. Burtch, Case No. 15-11113 (June 22, 2016).

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