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Dismissal of Pro Se Prisoner’s Sexual Assault, Excessive Force Case Reversed

by Kevin Bliss

The Third Circuit Court of Appeals reinstated a lawsuit filed by Pennsylvania state prisoner Gregory L. Ricks against Paul Keil and D. Shover, guards at SCI Graterford, after his case was dismissed by a district court for failure to state a claim.

Ricks was on his way to Graterford’s law library during morning movement when he was stopped and subjected to a pat-down search by Keil. Ricks stated that Keil pressed his erect penis against his buttocks during the search, and claimed it could be seen on the surveillance tapes of that area.

Ricks said he immediately stepped away and turned to Keil’s supervisor, Lt. D. Shover, who was overseeing the pat-down. He told Shover that Keil had just sexually assaulted him. Shover became belligerent and slammed Ricks against the wall, resulting in a black eye, busted nose and lips, and injuries to his head, neck and back. Ricks said Shover then cuffed him and returned him to his cell.

The district court held that one incident of minor sexual touching did not rise to the level of a constitutional violation. Further, Shover’s failure to intervene did not constitute participation in the incident, and Ricks’ allegations of excessive force were insufficient to survive the five-factor test set forth in Smith v. Messinger, 293 F.3d 641 (3d Cir. 2002). After Ricks failed to amend his complaint in a timely manner, the court dismissed it with prejudice. Ricks appealed.

On June 5, 2018, the Third Circuit ruled incidents of sexual abuse could not be held to a qualifying factor as to the number of incidents, but that “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,” citing Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). The totality of the circumstances must be considered under objective and subjective prongs, then evaluated based on “evolving standards of decency.”

“Whether sexual abuse can constitute ‘cruel and unusual punishment’ under the Eighth Amendment is a matter of first impression in our Court. We write today to state in plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact,” the Court of Appeals wrote.

However, it added, “We nonetheless are not persuaded that the current standard is zero tolerance for all minor sexualized touching in prison, such that all such claims are objectively serious to a constitutional degree.”

The Court reversed the dismissal of Ricks’ Eighth Amendment sexual assault claim against Keil, but affirmed the lower court’s finding that Shover’s failure to intervene did not constitute participation. Lastly, it held that Ricks, a pro se litigant, had made a sufficient showing of excessive force to allow that claim to proceed.

Accordingly, the appellate court affirmed in part, reversed in part and remanded the case for further proceedings. The district court appointed counsel to represent Ricks on remand, and the case remains pending. See: Ricks v. Shover, 891 F.3d 468 (3d Cir. 2018). 


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Related legal case

Ricks v. Shover