Lawsuit alleging sexual touching of inmate cannot proceed

Here is another tutorial on qualified immunity, the federal doctrine that allows government defendants to avoid suit if they did not violate clearly-established law. In this case, the plaintiff was an inmate. He says a corrections officer touched him in a sexually-inappropriate way. The officer gets qualified immunity.

The case is Shannon v. Venettozzi, a summary order issued on September 6. As the district court summarized plaintiff's case:

He alleges that defendant McTurner repeatedly sexually assaulted him when plaintiff attempted to use the restroom during visitation time, and that defendants Correctional Officer Nitoscha Moore and Correctional Sergeant V. Colon ignored plaintiff's requests for intervention to stop the alleged assaults. (Id. ¶¶ 12-20.) For example, plaintiff alleges that in August 2011, he was waiting in line to use the restroom during a visit from his wife when defendant McTurner sexually assaulted plaintiff by rubbing plaintiff's genitalia, inner thighs, stomach, and chest. (Id. ¶ 12.) Plaintiff alleges that defendant McTurner's touching was sexual in nature and "totally unconducive to a legitimate search for contraband." (Id.) Plaintiff claims that when he complained to defendant Moore—who, he alleges, witnessed the assault—Moore ignored him and refused to intervene. (Id. ¶ 13.)

These allegations are serious, but the officers win the case. In 2015, the Second Circuit held in Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015), that even a single instance of a correction officer's intentional touching an inmate's genitalia violates the Eighth Amendment when the touching lacks any legitimate purpose and is undertaken with intent to humiliate the inmate or gratify the officer's sexual desire. But that was 2015. In this case, Shannon says the touching happened in 2011, prior to Crawford. For some reason, the law in the Second Circuit was not yet clearly-established that this kind of touching was not yet an Eighth Amendment violation.

Rulings by the Second Circuit on what constitutes clearly-established law are not retroactive for purposes of defeating qualified immunity. This means that while plaintiff alleges that his rights were violated, he cannot proceed with the suit, because it was not clear at the time his rights were violated.What is also means is that the gratuitous sexual touching of an inmate after 2015 is actionable.