by Douglas Ankney

On March 19, 2026, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s denial of qualified immunity (QI) to Vermont prison guard Jason Scott but clarified that pretrial detainee John Russell’s claim that Scott sexually abused him was to be reviewed under the Fourteenth Amendment’s “objective reasonableness” standard.

While Russell was a pretrial detainee at Vermont’s Southern State Correctional Facility (SSCF) in 2019, he participated in the medication assisted treatment (MAT) program in which he received Suboxone. Russell entered the room to receive the Suboxone and Scott ordered Russell to remove his hat. The MAT protocol required a nurse to place Suboxone on Russell’s tongue, and then Russell had to wait ten minutes to ensure all of the medication dissolved before leaving the room.

As Scott observed Russell waiting, another prisoner participating in MAT stood between Russell and Scott, obstructing Scott’s view. Scott later stated he suspected the other prisoner was spitting his Suboxone onto Russell’s hat. After Russell had waited ten minutes, Scott checked his mouth and observed no Suboxone remained. However, he then alleged that Suboxone was on Russell’s hat and took the hat. But according to Russell’s complaint, Scott then “reached into Russell’s pants and grabbed, squeezed, and twisted Russell’s penis,” and said to Russell “how’d you like that, mother fucker?”

Two detainees witnessed the incident and attested they saw “Scott squeeze [Russell’s] manhood.” The force of Scott’s contact caused “a rug burn and a red mark on [Russell’s] penis for about a week after the [incident]” followed by “scabbing on his penis.” Russell sought medical attention for his injuries and filed multiple grievances.

Russell’s grievances were deemed “unfounded” because “Scott was conducting a suitable pat search and [a disciplinary report] was written for diversion of MAT meds.” But Russell was found “not guilty” of any infractions because of alleged chain-of-custody issues with the hat. After Russell was released, he filed a 42 U.S.C. § 1983 complaint, alleging, inter alia, a claim of sexual abuse under the Fourteenth Amendment to the U.S. Constitution. Scott moved for summary judgment, arguing he was entitled to QI. The district court determined Scott was not entitled to QI and denied his motion. Scott appealed the denial.

The Court observed that QI “protects 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.” See: Pearson v. Callahan, 555 U.S. 223 (2009). Officials are entitled to QI unless a plaintiff can show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” See: Nat’l Rifle Ass’n of America v. Vullo, 144 F.4th 376 (2d Cir. 2025).

With regard to prong (1), the Court observed “[p]retrial detainees have not been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor otherwise.” See: Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017). Because Russell was a pretrial detainee at the time of the alleged sexual abuse, his “claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment.”

But in the instant case, the district court had nevertheless analyzed Russell’s claim under the Eighth Amendment, reasoning that if he had adduced sufficient evidence under the more demanding Eighth Amendment standard, then he satisfied the Fourteenth Amendment standard. However, the Court explained “a pretrial detainee’s rights against sexual abuse are greater than those afforded to convicted prisoners, as they are against any other form of excessive force.”

Thus, determining whether Scott’s treatment of Russell violated the Fourteenth Amendment requires its own analysis separate and apart from the Eighth Amendment. The Court “has long recognized that sexual abuse of incarcerated people ‘offends our most basic principles of just punishment,’ violates the Constitution,” and is “a species of excessive force.” See: Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). Sexual abuse by corrections officials against persons convicted of crimes may give rise to claims under the Eighth Amendment. See: Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997). In those cases, “the principal inquiry is whether the contact [at issue] is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the inmate.”

But excessive force claims brought by pretrial detainees under the Fourteenth Amendment require “a very different analysis. Because pretrial detainees have not been convicted of a crime and thus may not be punished at all, ‘it is plain that punishment has no place in defining the mens rea element of a pretrial detainee’s claim under the Due Process Clause.’” That is, the inquiry is not whether the detainee has experienced “cruel and unusual punishment,” because “the Due Process Clause protects a pretrial detainee from the use of excessive force that AMOUNTS TO PUNISHMENT.” See: Graham v. Connor, 490 U.S. 386 (1989) (emphasis supplied by Court). “Force amounting to punishment includes ‘actions [that] are not rationally related to legitimate non punitive governmental purposes or actions [that] appear excessive in relation to that purpose.”

The Court added, “[T]he central inquiry under the Fourteenth Amendment ‘has always been whether the government action was rationally related to a legitimate government objective.’” See: Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018). Consequently, to prove an excessive force claim under the Fourteenth Amendment “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.”

The guard’s subjective intent, i.e., whether or not the force was imposed to arouse or gratify sexual desire or to humiliate the prisoner, has no bearing on a claim under the Fourteenth Amendment because the subjective intent inquiry is meant to determine whether the punishment was “cruel or unusual.” The distinction is that convicted persons may be punished (but not cruelly or unusually) whereas pretrial detainees may not be punished at all. Applying the above principles to the case sub judice, the Court explained that detection of contraband is a legitimate non punitive purpose that may justify an intrusive search. See: Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2020).

But the manner in which Scott allegedly conducted the search was objectively unreasonable and violated Russell’s Fourteenth Amendment rights. Scott’s comment “How’d you like that, mother fucker,” suggested that the purpose of the search was punitive in nature. And Scott’s grabbing, squeezing, and twisting Russell’s penis, causing rug burn and scabbing, “was grossly excessive in relation to the [legitimate purpose justifying the search].”

Turning to prong (2) of the QI analysis, the right of pretrial detainees to be free from government action amounting to punishment was established in Graham v. Connor, 490 U.S. 386 (1989) and expounded by Kingsley in 2015—before the incident complained of by Russell. Accordingly, the Court affirmed and remanded for further proceedings. See: Russell v. Scott, No. 24-3312 (2d Cir. 2026).  

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