JOHN M. WALKER, Circuit Judge:
On March 5, 2014, the district court (Norman A. Mordue, J.) dismissed a complaint filed by Thaddeus Corley, an inmate at the Eastern Correctional Facility ("ECF"), and James Crawford, a former ECF inmate, alleging that Corrections Officer Simon Prindle sexually abused them and, in doing so, subjected them to cruel and unusual punishment in violation of the Eighth Amendment. In dismissing the case, the district court concluded that the complaint failed to state a claim under Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997), which set forth the standard for stating an Eighth Amendment claim arising from sexual abuse in prison. Crawford and Corley appealed, arguing that the district court construed our opinion in Boddie too narrowly. We agree.
We write today to clarify the rule set forth in Boddie: A corrections officer's intentional contact with an inmate's genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or to humiliate the inmate, violates the Eighth Amendment. Moreover, we recognize that sexual abuse of prisoners, once passively accepted by society, deeply offends today's standards of decency. The proper application of the rule in Boddie must reflect these standards.
By alleging that Officer Prindle fondled their genitals for personal gratification and without penological justification, Crawford and Corley stated a cognizable Eighth Amendment claim. Accordingly, we REVERSE the district court's order dismissing the complaint and REMAND the case for further proceedings consistent with this opinion.
The following facts are taken from the complaint and must be accepted as true for
On March 12, 2011, Thaddeus Corley, an ECF inmate, was visiting with his wife when Corrections Officer Simon Prindle ordered him out of the visiting room and sexually abused him. Prindle informed Corley that "he was going to make sure Mr. Corley did not have an erection," and after ordering Corley to stand against the wall with his feet spread apart, Prindle "paused to fondle and squeeze [his] penis." App'x 9. When Corley "jumped off the wall" in response, Prindle threatened him and told him to "get back on the wall." Id. at 10.
Four days later, Prindle abused a second ECF inmate, James Crawford.
The complaint also alleged that at least 20 inmate grievances complained of sexual abuse or harassment by Prindle. On certain occasions, Prindle demeaned Crawford and other inmates by telling them that he had "seen a little boy like [them] before on the internet" or that he had seen their penises. Id. at 14. And on other occasions, Prindle claimed that inmates were not properly complying with anal-cavity search procedures and ordered the inmates to repeatedly bend over and spread their buttocks for him.
On April 12, 2013, Crawford and Corley filed a complaint in the United States District Court for the Northern District of New York alleging that Prindle's sexual abuse violated their Eighth Amendment right to be free from cruel and unusual punishment. In addition to Prindle, the complaint named as defendants Superintendent William P. Brown, Prindle's supervisor, as well as others.
Defendants filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In support of the motion, Defendants cited our opinion in Boddie v. Schnieder, 105 F.3d 857 (2d Cir.1997), which set forth the standard for stating an Eighth Amendment claim arising from sexual abuse in prison. Based on its understanding of Boddie, the district court dismissed the Eighth Amendment cause of action for failing to state a claim and dismissed the state law claims for lack of jurisdiction. Crawford and Corley timely appealed.
We review de novo a district court's decision to dismiss a complaint pursuant to Rule 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in the plaintiff's favor. Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir.2013). To survive a 12(b)(6) motion, the complaint must contain factual allegations that plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Crawford and Corley argue that, in dismissing the complaint for failing to stating an Eighth Amendment claim, the district court erred because it too narrowly construed the standard established in Boddie. We agree. Boddie recognized that a single act of sexual abuse may violate the Eighth Amendment if, as in this case, it is entirely gratuitous and devoid of penological purpose. Moreover, in the nearly two decades since Boddie was decided, societal standards of decency regarding sexual abuse and its harmful consequences have evolved. Without suggesting that Boddie was wrongly decided in 1997, we conclude that the result in that case would likely be different applying the same rule today.
The Eighth Amendment protects prisoners from cruel and unusual punishment by prison officials. Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). To state an Eighth Amendment claim, a prisoner must allege two elements, one subjective and one objective. First, the prisoner must allege that the defendant acted with a subjectively "sufficiently culpable state of mind." Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted). Second, he must allege that the conduct was objectively "harmful enough" or "sufficiently serious" to reach constitutional dimensions. Id. at 8, 20, 112 S.Ct. 995. Analysis of the objective prong is "context specific," Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (internal quotation marks omitted), and "depends upon the claim at issue," Hudson, 503 U.S. at 8, 112 S.Ct. 995. Although not "every malevolent touch by a prison guard gives rise to a federal cause of action," the Eighth Amendment is offended by conduct that is "repugnant to the conscience of mankind." Id. at 9-10, 112 S.Ct. 995 (internal quotation marks omitted). Actions are repugnant to the conscience of mankind if they are "incompatible with evolving standards of decency" or involve "the unnecessary and wanton infliction of pain." Id. at 10, 112 S.Ct. 995 (quoting Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
In Boddie, we left no doubt that sexual abuse by a corrections officer can give rise to an Eighth Amendment claim. 105 F.3d at 859. With respect to the Eighth Amendment's objective component, Boddie made clear that "severe or repetitive sexual abuse of an inmate by a prison officer can be `objectively, sufficiently serious' enough to constitute an Eighth Amendment violation."
Applying Boddie and other district court cases interpreting Boddie, the district court concluded that the isolated instances during which Prindle fondled Crawford and Corley's genitalia did not rise to the level of a constitutional violation. The district court reasoned that, under Boddie, sexual abuse only states a cognizable Eighth Amendment claim if it occurs on more than one occasion, is "excessive in duration," involves direct contact with an inmate's genitalia (rather than contact through an inmate's clothing, as was the case here), or causes "physical injury, penetration, or pain." App'x 28-30.
Boddie does not support that narrow interpretation. Boddie held that sexual abuse by a corrections officer may constitute cruel and unusual punishment if it is "severe or repetitive." 105 F.3d at 861 (emphasis added). Thus, 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. Recurrences of abuse, while not a prerequisite for liability, bear on the question of severity: Less severe but repetitive conduct may still be "cumulatively egregious" enough to violate the Constitution. Id.
To show that an incident or series of incidents was serious enough to implicate the Constitution, an inmate need not allege that there was penetration, physical injury, or direct contact with uncovered genitalia. A corrections officer's intentional contact with an inmate's genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or humiliate the inmate, violates the Eighth Amendment. Similarly, if the situation is reversed and the officer intentionally brings his or her genitalia into contact with the inmate in order to arouse or gratify the officer's sexual desire or humiliate the inmate, a violation is self-evident because there can be no penological justification for such contact. And even if contact between an officer and an inmate's genitalia was initially justified, if the officer finds no contraband, continued sexual contact may be actionable.
In determining whether an Eighth Amendment violation has occurred, the principal inquiry is whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to
To be sure, prison officials looking for contraband may subject inmates to reasonable strip searches and cavity searches. Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Indeed prison security and safety may require frequent searches of an intensely personal nature — and not every such search is properly the subject of a lawsuit. Searches that do not uncover contraband may be no less penologically justified than those that do. And even an officer who is meticulous in conducting a search does not violate an inmate's constitutional rights as long as the officer had no intention of humiliating the inmate or deriving sexual arousal or gratification from the contact. But a search may not be undertaken maliciously or for the purposes of sexually abusing an inmate. See Hudson v. Palmer, 468 U.S. 517, 528, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
The unjustified conduct alleged here is unquestionably "repugnant to the conscience of mankind" and therefore violates the Eighth Amendment. Whitley, 475 U.S. at 327, 106 S.Ct. 1078 (quoting Estelle, 429 U.S. at 106, 97 S.Ct. 285); see also United States v. Walsh, 194 F.3d 37, 50 (2d Cir.1999) (holding that a prison guard who repeatedly stepped on a prisoner's penis acted "contrary to contemporary standards of decency" (internal quotation marks omitted)); Washington v. Hively, 695 F.3d 641, 643 (7th Cir.2012) ("An unwanted touching of a person's private parts, intended to humiliate the victim or gratify the assailant's sexual desires, can violate a prisoner's constitutional rights whether or not the force exerted by the assailant is significant."); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) ("A sexual assault on an inmate by a guard — regardless of the gender of the guard or of the prisoner — is deeply offensive to human dignity." (internal quotation marks omitted)).
Accepting the facts alleged in the complaint as true, Prindle violated Corley's rights by "fondl[ing] and squeeze[ing][his] penis" in order to "make sure Mr. Corley did not have an erection." App'x 9. There is no penological justification for checking to see if an inmate has an erection, and Prindle does not argue otherwise. Moreover, Prindle executed the frisk in the middle of Corley's visit with his wife, rather than at the beginning or end of the visit. The timing, combined with Prindle's stated reason for initiating the frisk, suggests that the frisk was pretext for sexual abuse. Cf. Wolfish, 441 U.S. at 559, 99 S.Ct. 1861 (stating that the constitutionality of a prison body-cavity search turns on, among other things, "the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted"). Under Boddie, no amount of gratuitous or sexually-motivated fondling of an inmate's genitals — even if limited in duration or conducted through the inmate's clothes, as was the case here — is permitted by the Constitution.
Similarly, Prindle violated Crawford's rights when he allegedly "squeezed" and "fondled" Crawford's penis and "roamed" his hands down Crawford's thigh. App'x 11-12. In the circumstances alleged, the extensive search of Crawford's genitalia was not incident to any legitimate duties. See Whitley, 475 U.S. at 320-21,
The standard set forth in Boddie, which condemns Prindle's alleged conduct, remains the same today. But in determining the application of that standard, the Eighth Amendment requires courts to "look 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, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (internal quotation marks omitted). We must therefore also recognize that particular conduct that might not have risen to the level of an Eighth Amendment violation 18 years ago may no longer accord with community standards, and for that reason may state a claim today.
To ascertain contemporary standards of decency, courts begin by reviewing "objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question." Roper v. Simmons, 543 U.S. 551, 564, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Subsequent enactments by state and federal legislatures show that standards of decency with regard to sexual abuse in prisons have evolved since 1997. At the time Boddie was written, 18 states and the District of Columbia expressly criminalized corrections officers' sexual contact with inmates.
In light of this evolution, while the standard articulated in Boddie remains the same, "its applicability must change as the basic mores of society change." Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)). Accordingly, conduct that might not have been seen to rise to the severity of an Eighth Amendment violation 18 years ago may now violate community standards of decency, and for that reason, we believe that the officer's conduct in Boddie would flunk its own test today.
Defendants argue that qualified immunity shields Prindle and Brown from liability because it was objectively reasonable for them to believe that Prindle's alleged sexual abuse did not violate the Eighth Amendment. Because the district court dismissed the complaint, it did not address whether Prindle and Brown are entitled to qualified immunity, and the parties did not thoroughly brief the issue on appeal. We therefore remand the case to the district court to decide the qualified immunity question in the first instance.
For the reasons stated above, we REVERSE the district court's order dismissing the complaint and REMAND for further proceedings consistent with this opinion.