Sexual harassment against inmate may violate the Constitution

You can't just smack the inmates around. The Constitution forbids it. The inmate in this case filed a lawsuit in the Southern District of New York, which dismissed the case because the judge said he alleged isolated but "despicable" incidents of sexual harassment by a prison guard. The Court of Appeals reverses.

The case is Shannon v. Venetozzi, a summary order decided on November 15. This is what the plaintiff alleged happened to him:

Shannon alleged that on at least four occasions, before he was allowed to use the bathroom during prison visits from his wife, Officer Jermaine McTurner required him to undergo “aggressive and very provocative” pat-frisk searches, during which the officer “hit [Shannon’s] genitalia hard,” “rammed his hands into [Shannon’s] testicles very hard,” “fondl[ed Shannon’s] genitals,” and “rubbed his buttocks.” Shannon also alleged that Officer McTurner told him that “if you don’t want to be searched and sexually assaulted, stop coming to prison,” and that, when Shannon complained that Officer McTurner was violating prison policy and procedure by searching him in the middle of visits with his wife, Officer McTurner stated, “I don’t give a fuck about no P&P. This is my visiting room and I run it the way that I want.”

The district court said this was despicable, but isolated, so it did not violate the Eighth Amendment prohibition against cruel and unusual punishment. The court relied in Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997) for this proposition. But, the Court of Appeals (Katzmann, Wesley and Carney) says, more recent precedent guides this case, Crawford v. Cuomo, 796 F.3d 252 (2d Cir, 2015), which says "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.” In addition, under Crawford, “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 arouse or gratify the officer or humiliate the inmate.”

Since even less severe but repetitive conduct may be egregious enough to violate the Constitution, and "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," plaintiff -- who handled this appeal pro se -- states a claim. The case heads back to the trial court for discovery.