PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 16

- 2939

___________

MR. GREGORY L. RICKS

, Appellant

v.

LIEUTENANT D. SHOVER; C/O KILE

______________________________
On Appeal from the District Court
for the Eastern District of Pennsylvania ( E.D. Pa. No. 2

- 15

- cv

- 03 6 18 ) District Judge: Honorable Wendy Beetlestone

________________________________
Argued on February 8, 2018

Before: CHAGARES

, SCIRICA

, and RENDELL,

Circuit Judges

(Opinion fi led: June 5, 2 018 )2 James A. Kraehenbuehl [Argued]
Boies Schiller Flexner 1401 New York Avenue, N.W. Washington, DC 20005

Counsel for Appellant

Josh Shapiro Attorney General
Claudia M. Tesoro [Argued] Senior Deputy Attorney General John G. Knorr, III Chief Deput

y Attorney General
C hief, Appellate Litigation Section Office of Attorney General of Pennsylvania
21 South 12th Street
3rd Floor Philadelphia, PA 19107

Counsel for Appellee

O P I N I O N

RENDELL

, Circuit Judge :

In this § 1983 case, Plaintiff

- A ppellant Gregory Ricks

, a former inmate at Pennsylvania State Corrections facility
SCI

- Graterford, appeals the dismissal of his complaint3 alleging sexual abuse and excessive force in violation of the Eighth Amendment. His two claims arise from an alleged incident where, during a routine morning pat

- down

, Corrections Officer Keil rubbed his erect penis against Ricks’ buttocks through both men’s clothing. When Ricks stepped away and verbally protested to Keil’s supervisor, Lieutenant Shover, Ricks alleges t hat Shover “ slammed ” Ricks against the wall, causing injuries to hi s face, head, neck, and back.
A. 15.

Ricks proceeded pro se , and before the merits of his
claim s could be tested, the District Court granted a motion to
dismiss for failure to state a cla im

, with leave to amend. Ricks did not amend his complaint, and t he District Court then dismissed his complaint with prejudice . In so doing, the District Court cited our Circuit’s non

- precedential opinion, Obiegbu v. Werlinger

, where we indicated that “ a small number of incidents in which a prisoner is verbally harassed, touched, and pressed against without his consent do not amount” to an Eighth Amendment violation . 581 F. App’x 119, 121 (3d Cir. 2014)

.

Whether sexual abuse can constitute “cruel and

u nusual punishment ” under the Eighth Amendment is a matter of first impression in our C ourt . We write today to
state i n plainest terms that it does. Our society requires prisoners to give up their liberty, but that surrender does not

encompass the basic r ight to be free from severe unwanted
sexual contact.

We will give Ricks another chance to cure his complaint as it relates to the Eighth Amendment sexual abuse
claim against Keil , with a view to the applicable law as4 discussed herein

. A lthough his sexu al abuse claim as to Shover under a participation or failure

- to

- intervene theory was properly dismissed, Ricks’ excessive force claim stands on a different footing and should have been permitted to
survive the motion to dismiss . W e will therefore affirm i n part

, vacate in part , and reverse in part the District Court’s
order

, and remand for further proceedings consistent with this opinion.

I. B ACKGROUND

A. Facts

In reviewing the District Court’s dismissal order, w e accept as true the following facts, set f orth in Ricks’ complaint. See Bell Atl. Corp. v. Twombly , 550 U.S. 544 , 556 (2007). On the morning of September 17, 2014, Ricks, an
inmate at SCI

- Graterford, 1 was on his way to the law library during morning line movements when Corrections Officer
Keil 2 directed him to undergo a pat

- down search in a public hallway. Ricks complied and submitted to the search , which he alleges was captured by video camera

.

While being searched from behind

, Ricks felt Keil ’s erect penis (under clothing) “rubbing up agains t ” Ricks’
clothed buttocks. A. 15. Ricks stepped away from Keil and
told him he was “on [his] (ASS).” Id. Ricks told Lt

. Shover

,

1 Ricks has since been released on parole.

2 In his complaint, and as reflected on this case’s caption,
Ricks refers to “C/O Kile.” The Co mmonwealth later
identified him as Corrections Officer Paul Keil.5 who was overseeing the line movement, that Keil “ is [ r ] ubbing [u]p against my [ b ] ehind with his genitals.” Id.
Shover as ked Ricks “what [ d ] id you say.” Id. Ricks explained, and Shover “came over to [him] and just slammed [him] in the

. . . wall.” Id. This action gave Ricks a black eye, a “ [ b ] usted” nose and lip, and injuries to his head, neck,
and back. 3 Id. Shover th en told Ricks to place his hands
behind his back so he could be cuffed and retu rned to his cell. Ricks complied. On the way to Ricks’ cell, Shover directed
several racial slurs at him

. Ricks also alleges that in the past, Shover had continuously harasse d him , and that he had reported this conduct to other prison officials

.

B. Procedural History

After exhausting administrative remedies, Ricks filed a complaint in the United States Court for the Eastern District of Pennsy lvania against Officer Keil and Lt. Shover . He sought monetary and injunctive relief for racial discrimination, harassment, sexual abuse, and the use of
excessive force. 4 Proceeding pro se , his standard § 1983 Prisoner Complaint form briefly set out the above facts.
Defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss.

The District Court granted the motion, holding that Ricks failed to allege a violation of his Eighth Amendment rights. The District Court dismissed Ricks’ sexual abuse

3 On his standard Prisoner Complaint form, Ricks did not allege having received any medical treatment for these injuries.

4 Ricks has not pursued his claims for racial discrimination or
ha rassment in this appeal.6 cause of action, citing our non

- precede ntial opinion in Obiegbu v. Werlinger

, 581 F. App’x 119, 121 (3d Cir. 2014),
in which we stated that “a small number of incidents in which a prisoner is verbally harassed, touched, and pressed against without his consent do not amount” t o an Eighth Amendme nt violation . The Court then referred to the five

- factor test for
excessive force set out in Smith v. Mensinger , 293 F.3d 641 (3d Cir. 2002) , and dismissed Ricks’ excessive force claim as well

.

The Court dismisse d Ricks’ case without prejudice, granting him leave to amend his complaint. The Court instructed Ricks to describe “(a) the specific statutory basis for federal jurisdiction over this case; (b) the specific events which serve as the basis for his claim; (c) how the defendant
is involved in his c laims; and (d) the harm he suffered, if any, from each violation.” A. 2. Ricks did not file an amended complaint within the allotted time frame, and so the District Court converted its dismissal to one with prejudice. This appeal followed. 5

II. DISCUSSI ON

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343. We have jurisdiction under 28 U.S.C. § 1291 , as the District Court’s dismissal with

5 Coupled with his motion for appoint ed counsel, which we granted, Ricks filed a motion for e xtension of time to amend his complaint. Ricks’ attorney is appearing pro bono . We express our gratitude to him for accepting this matte r and for the high caliber of representation of his client before our
Court.7 prejudice was a final order

. We exercise plenary review over
the dismissal of a complaint un der Federal Rule of Civil Procedure 12(b)(6). United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co. , 839 F.3d 242, 248 (3d Cir. 2016). We accept all factual allegations in the complaint
as true, an d affirm the dismissal only if the wel l

- pleaded facts, accepted as true, do not plausibly provide a basis for
relief. Twombly , 550 U.S. at 570

. When a plaintiff files pro

se , we have “a special obligation to construe his complaint liberally.” Zilich v. Lucht , 981 F.2d 694, 694 (3d Cir. 1992 ).

The Eighth Amendment guarantees the right to be free from “cruel and unusual punishments” while in custody. Whitley v. Albers , 475 U.S. 312, 318 (1986) (q uoting U.S.
Const. amend. VIII ). A properly stated Eighth Amendment claim must allege a subjec tive and objective element.
Hudson v. McMillian , 503 U.S. 1, 8 (1992). First, it must appear from the complaint that the defendant official acted with a “sufficiently culpable state of mind.” Wilson v. Seiter

, 501 U.S. 294, 298 (1991) . Second, the cond uct must have been objectively “harmful enough,” or “sufficiently serious”
to violate the Constitution. Id. at 298, 303.

Ricks has asserted two types of Eighth Amendment
claims: one for sexual abuse (against both Defendants) , and
one for excessive for ce (against Lt

. Shover only). We
examine e ach in turn.

A. Sexual Abuse Claim

Whether sexu al abuse of inmates by prison officials
offends the Eighth Amendment is a matter of first impression
in our Court. Today, we join numerous sister C ircuits in8 holdin g that prison sexual abuse can violate the Constitution. See Washington v. Hively , 695 F.3d 641, 643 (7 th Cir. 2012);
Boxer X v. Harris , 437 F.3d 1107, 1111 (11 th Cir. 2000); Schwenk v. Hartford , 204 F.3d 1187, 1197 (9 th Cir. 2000 ) ; Giron v. Corr. Corp. o

f Am. , 191 F.3d 1281, 1290 (10 th Cir. 1999) ; Boddie v. Schnieder , 105 F.3d 857, 861 (2d Cir. 1997)

. We agree that “sexual abuse of prisoners, once overlooked as a distasteful blight on the prison system, offends our most basic principles of just punishmen t.” Crawford v. Cuomo

, 796 F.3d 252, 2 60 (2d Cir. 2015). Sexual abuse invades the
most basic of dignity interests: to be treated as a human being

. We condemn such abuse as it is “simply not part of the penalty that criminal offenders pay for their offe nses against society.” Boddie , 105 F.3d at 861 (quoting Farmer v.
Brennan , 511 U.S. 825, 83 4 (1994)).

1. Legal Framework

Though t he Supreme Court has not addressed sexual abuse of inmates by prison officials , courts grappling with
this issue have drawn from the Supreme Court’s ex cessive force precedents and its holding in Farmer v. Brennan that
sexual assaults of inmates by inmates can implicate the right to be free from cruel and unusual punishment

. See, e.g.

, Boddie , 105 F.3d at 861

. Thus, the frame work for excessive
force claims set forth in Hudson v. McMillian

— composed of a subjective and objective prong

— has evolved to encompass claims for sexual abuse and harassmen t by prison officials as
well. See , e.g. , id. (describing the Hudson test ’s objecti ve and subjective components as applying to sexual abuse claims);
Boxer X , 437 F.3d at 1111 (same); Freitas v. Ault , 109 F.3d 1335, 1338 (8 th Cir. 1997) (same).9 In particular, t he United States Court of Appeals for
the Second Circuit’s reasoning in its t wo landmark Eighth
Amendment sexual abuse cases informs our analysis . In 1997, the Second Circuit concluded in Boddie v. Schnieder that in some circumstances, sexual abuse could present a cognizable Eighth Amendment claim. 105 F.3d at 861. There, the pl aintiff had alleged that a female corrections officer squeezed his penis and said “[Y]ou know [you’re] a sexy black devil, I like you.” Id. at 860 (first alteration in original) . He further averred that she bumped i nto him “with
both her breast so hard [ he] could feel the points of her nipples against [his] chest

, ” and that she “bumped into him

. .

. with her whole body vagina against penis pinning [him] to the door.” Id.

As to the objective prong, the Court stated that “there
can be no doubt that sever e or repetitive sexual abuse of an inmate by a prison officer can be ‘objectively, sufficiently serious’ enough to constitute an Eighth Amendment
violation.” Id. at 861 (quoting Farmer , 511 U.S. at 834 ). Concerning Hudson ’s subjective prong , the Court de clared that “[w]here no legitimate law enforcement or penological purpose can be inferred from the defendant’s alleged conduct, the abuse itself may, in some circumstances, be sufficient evidence of a culpable state of mind.” Id. The Court thus
concluded that sexual abuse could meet both prongs of
Hudson ’s test for Eighth Amendment violations

— al though on the facts before it, the Court declined to find a sufficiently objective harm in order to state a c onstitutional claim

. Id.

Nearly twenty years later, the Second Circuit clarified
that “ Boddie recognized that a single act of sexual abuse may violate the Eighth Amendment if, as in this case, it is entirely10 gratuitous and devoid of penological purpose.” Crawford

, 796 F.3d. at 257 (emphasis added). In Cra wford

, one of the two plaintiffs alleged that during a frisk in the middle of a
visi t with the inmate’s wife, the defendant corrections officer fondled and squeezed his penis to “make sure [he] did not
have an erection.” Id. at 255 . The other plaintiff a lleged that during a search, the officer grabbed and held his penis and asked “what’s that?” Id. The officer then pinned the plaintiff to the wall while continuing to “squeeze” and “fondle” the area around his penis and “roam” his hands down the
inmate’s thigh. Id. The officer also threatened the inmate with solitary confinement if he resisted the abuse. Id. The Court explained that “[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.” Id. at 257. Rather, the Court held that “[a] corrections officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no pen ological purpose and is undertaken with the intent to gratify the officer’s sexual desire or to humiliate the inmate, violates the Eighth
Amendment. ” Id. at 254.

Following Boddie and Crawford , we resolve that a properly stated Eigh th Amendment sexual a buse claim need not necessarily depend on the number of incidents. We agree with the statement made by the Court in Crawford that “a single incident of sexual abuse, if sufficiently severe or
serious , may violate an inmate’s Eighth Amendment rights no
les s than repetitive abusive conduct.” Id. at 257 (emphasis added).11 Here, wit hout analyzing Ricks’ sexual abuse claim, the
District Court cited to our non

- precedential opinion in Obiegbu v. Werlinger , 581 F. App’x 119 (3d Cir. 2014), for the proposition tha t a single incident cannot constitute a
constitutional violation. While we cannot be sure if the District Court intended to impose a formal numerosity requirement on Ricks’ claims, we conclude that an emphasis on the number of incidents as a gatekeeper fo r objective seriousness is misplaced. We decline to adopt a per se rule regarding the number of incidents as bearing on severity. Instead, we conclude that the test will turn on an analysis of a subjective and an objective component. That is, the incide nt must be objectively, sufficiently intolerable and cruel

, capable of causing harm, and the official must have a culpable state of mind. We next turn to what each prong requires.

Regarding the subjective prong, we cons ider whether the official had a leg itimate penological purpose or if he or she acted “maliciously and sadistically for the very purpose of causing harm.” Albers , 475 U.S. at 319

– 320 (quoting
Johnson v. Glick , 481 F.2d 1028, 1033 (2d Cir. 1973)).
Because this is a mental state, “unless adm itted, [ it ] has to be inferred rather than observed” from conduct such as harassing

comments

, or an overly invasive search in violation of facility policy. Washington , 695 F.3d at 643; see Crawford , 796 F.3d at 258 (“ There is no penological justification for checking to see if an inmate has an erection . . . .”). The nature of the violative conduct itself will often be enough to demonstrate
the prison official’s culpable state of mi nd

. See Crawford

, 796 F.3d at 252 (“[I]f . . . 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, a12 violation is self

- evident because there can be no penological justification for such contact.”).

While the subj ective inquiry involves a judgment call that may be relatively easy to make based on the specific circumstances, the objective prong seems more difficult.
What level of inappropriate conduct objectively constitutes a
violation ? At the outset, we readily acknowledge that this
kind of line

- drawing is difficult in part because it is
uncomfortable. It requires parsing a set of allegations or facts
that may be deeply troubling, and making a judgment as to
whether the conduct alleged implicate s the Constitutio n. Nevertheless, it is within our purview to provide guidance as to which claims may “involve a harm of federal constitutional proportions.” Boddie , 105 F.3d at 861.

When deciding objective harm , “not . . . every malevolent touch by a prison guard giv es rise to a federal cause of action.” Hudson , 503 U.S. at 9. Indeed, “[t]he
Constitution ‘ does not mandate comfortable prisons. ’ ”
Farmer

, 511 U.S. at 832 (quoting Rhodes v. Chapman , 452 U.S. 337, 349 (1981)). Rather, in contrast to common tort law, th e Eighth Amendment shields inmates from only those actions “repugnant to the conscience of mankind.” Hudson

, 503 U.S. at 10 (quoting Whitley , 475 U.S. at 327). The objective element “is therefore contextual and responsive to ‘contemporary standards of dec ency.’” Id. at 8 (quoting
Estelle v. Gamble , 429 U.S. 97, 103 (1976) ). And “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes

, 452 U.S. at 347

.13 Ricks has urged us to adopt a standard that would collapse the subjective and objective inquiries, so that a finding of a lack of penological purpose would be
determinative

. He draws this standard from Crawford , in
which the Court declared that: “In determining whether an Eighth Amendment vio lation 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 .” 796 F.3d at 257

– 58.

We do not take issue with the focus of the analysis by
other courts on whether the official performing the search had

a penological purpose. See, e.g.

, id. at 258 (concluding that “no amount of gratuitous or sexually

- motivated f ondli ng of an inmate’s genitals” is c onstitutional). That is, when a search involves intrusive, intimate touching to ensure that contraband and weapons are not present, an inquiry into its purpose is legitimate . For instance, in Crawford , the
corrections officer allegedly “fondled and squeezed [the plaintiff’s] penis” during a visit with the plaintiff’s wife, to “make sure [he] did not have an erection.” Id. at 258. We
have no doubt that this level of touching would be objectively, sufficiently serious to violate the Constitution

. B ut because it occurred during a search, the Court needed to
determine whether that search was legitimate or pretextual. Moreover, the Court clarified that “even if contact between an
officer an d inmate’s genitalia was initia lly justified, if the officer finds no contraband, continued sexual contact may be actionable.” Id. at 257.

A bsent a legitimate penological purpose, the type of touching involved in, for instance, a body

- cavity search,14 would be undoubtedly cruel and un usual. And a desire to humiliate the inmate or gratify the officer

— inferred through the officer’s conduct

— is a reasonable way to distinguish between invasive touching that is permitted by law to ensure safety and that which is not. An analysis focused on intent of the officer is therefore appropriate when evaluating whether an objectively i ntrusive s earch is c onstitutional

.

W e have previously discussed this distinction as it pertains to claim s for unconstitutional prison conditions. In
Parkell v. Danb erg , w here an inmate was “subjected to
thrice

- da ily visual body

- cavity searches, ” we concluded that those searches would only be cruel and unusual if they were “undertaken maliciously or for the purposes of sexually abusing” the plaintiff. 833 F.3d 313, 3 35

– 36 (3d Cir. 2016) (quoting Crawford , 796 F.3d at 258). We found a focus on intent necessary to demarcate permissible from ultra vires
invasiveness

. Accordingly, the inquiry to define culpable state of mind versus legitimate penological purpose is a

ne cessary, but not sufficient, inquiry.

F using the subjective and objective inquiries, as Ricks

urges we must, would constitutionalize any alleged touch, if the corrections officer lacked a penological purpose

. We decline to entirely eliminate the objectiv e prong of the analysis by collapsing it with the subjective prong. That is to

say , even if sexualized touching lacks a penological purpose, it may still fall below the threshold of c onstitutional cognizability based on a lack of objective seriousness

.

A s noted above, a single incident, if sufficiently serious or severe, can run afoul of the Eighth Amendment as surely as can multip le, less egregious incidents. While a15 pattern of harassment and sexualized touching may more clearly be considered objectivel y “cruel and unusual,” that does not diminish the harm that may arise from an isolated

act. See Crawford , 796 F.3d at 257 (stating that

“ [ r ] ecurrences of abuse” are relevant, but not dispositive, to severity).

Moreover, while our framework explicitly d raws from the Supreme Court’ s excessive force jurisprudence

, the absence of force or injury will not doom a sexual abuse claim outright

. Although physical injury will certainly signal severity, it is not the touchstone for objective seriousness

. 6

Whether an action is sufficiently harmful to be cruel and unusual cannot be determined only by looking at physical injury, because an abusive sexual encounter may not leave any marks. Indeed, sexual abuse “tend[s] rather to cause significant distress and often l asting psychological harm.” Washington

, 695 F.3d at 643.

Whether conduct is objectively cruel and unusual is
better considered with sensitivity to “evolving standards of decency.” Graham v. Florida , 560 U.S. 48, 58 (2010) (quoting Estelle , 429 U.S. at 102 ). Ricks posit s that the

6 Indeed, Congress recently amended the Prison Litigation Reform Act (“ PLRA ”) to add to its physical injury requirement an avenue for recovery for emotional damages
for sexual ab use , perhaps acknowle dging that sexual abuse may not result in physical injury. See Violence Against
Women Reauthorization Act, Pub. L. No. 113

- 12, § 1101, 127 Stat. 54, 134 (Jan. 3, 2013), codified at 42 U.S.C. §
1997e (amending the section imposing the physical injury requirement to insert “or the commission of a sexual act”).16 curre nt standard vis

- à

- vis sexualized touching in prison contexts is “zero tolerance.” Opening Br. at 15

. We are aware that societal norms surrounding unwanted sexual attention are changing ra pidly, and we are mindful that
b ehavior that may not have warranted damages in the past may so warrant today. We nonetheless are not persuaded that
the current standard is zero tolerance for all minor sexualized touching in prison, such that all such claim s are objectively
serious to a c onstitutional degree.

When considering contemporary standards of decency,

w e 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.
5 51, 564 (2005). We also examine the “consistency of the direction of change .” Atkins v. Virginia , 536 U.S. 304, 315 (2002).

I n recent years, both the federal government and all but two of the states have passed legislation outlawing sexual activity betw een guards and inmates. See Crawford , 796 F.3d
at 259

– 60 nn. 5

– 6 (collecting state statutes). As we elaborate below, these enactments reflect a societal standard that conduct falling outside the definition for “rape” nonetheless is taken seriously and co mpensable by damages at law. They do not, however, compel a finding that all inappropriate touching
is per se unconstitutional.

The Prison Rape Elimination Act ( “ PREA ” ), passed unanimously by Congress, explicitly seeks to “establish a
zero tolerance stan dard for the incidence of prison rape in the prisons of the United States.” 34 U.S.C. § 30302(1)

. Rape is objectively intolerable, cruel

, and unusual. But the statute17 defines “rape” so as to overtly encompass severe misconduct.
See i d. § 30309 (9) (defi ning “rape” as “the carnal knowledge, oral sodomy, sexual assault with an object, or sexual fondling of a person, forcibly or against that person’s will”).

Similarly, the Prison Litigation Reform Act ( “ PLRA ” ),
intended to address an overwhelming number of prisoner

initiated lawsuits in federal courts , limits recovery for mental and emotional injuries unless a litigant can show “physical injury or the commission of a sexual act.” 42 U.S.C. § 1997(e). And “ sexual act” as defined explicitly excludes
touchi ng that is unintentional or “through the clothing.” See 18 U.S.C. § 2246(2). We therefore do not read the PREA and the PLRA as evincing Congressional intent to create a zero

tolerance standard for minor sexual touching

.

Nor do similar state enactments criminalizing sexual
contact between inm ates and prison officials envisage a zero tolerance standard

. For instance, Pennsylvania, where SCI Graterford is located, criminalizes guard

- inmate rape, sexual assault, and “indecent contact.” Indecent contact, the least serious of the defined offenses, is “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person.” 18 Pa. Cons. Stat. §§ 3101; 3124.2. Thus, while the “consistency of the direction of change” towards outlawing such contact assures us that our society no longer accepts sexual abuse, that change does not oblige us to constituti onalize “every
malevolent touch. ”

As this inquiry is necessarily contextual, fact

- specific

,
an d to be conducted in the first instance by the District Court,

w e decline to c raft a mechanical factors test for when sexual18 contact is objectively , sufficiently serious. The scope, place, and timing of the offensive conduct will bear on its severity,

as will the details of the alleged contact. But it goes without saying that obje cti vely serious sexual contact would include sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and exchanges of sexual activity for spec ial treatment or to avoid discipline. In
context, including whether it violates established prison procedures, other sexualized touching may also be objectively
serious

.

2. Application

We n ow consider Ricks’ claims against Officer Keil
and Lt. Shover.

a. Sexual Abuse Claim Against Officer Keil

We are wary of setting a c onstitutional floor based on the fact patterns in our sister Circuits’ Eighth Amendment
sexual abuse cases. Many of those cases were primarily
based on more manifestly violent miscondu ct. See, e.g.

, Crawford

, 796 F.3d at 255 (allegations that prison official fondled and squeezed inmate’s penis while making threatening remarks) ; Giron , 191 F.3d at 1284 (allegations of rape) . Even in Boxer X , where the United States Court of Appeals for the Eleventh Circuit decided under its own excessive force precedent that the inmate’s allegations were
de minimis

, he had alleged that a prison guard had solicited
his masturbation under threat of reprisal. Boxer X , 437 F.3d
at 1109.19 Nevertheless, a situation falling below the level of objective seriousness present in those cases is not per se exclude d from c onstitutional cognizance. This is a fact

specific inquiry . Because we cannot de finitively say that

, consistent with his complaint, Ricks could not plead other
facts relevant to objective seriousness under the standard we have articulated, he should be afforded a reasonable opportunity to cure his complaint by amendment.

To be sure, Officer Keil’s alleged behavior was, by any standard, inappropr iate and unprofessional. It is not clear from the face of Ricks’ complaint whether the touching was incidental to a legitimate pat

- down search . Yet, the episode as alleged appeared to be isolated, momentary, and avoided by Ricks’ ability to step away fro m the offending touch. Absent more specific allegations as to the severity of Keil’s
conduct or the surrounding context , including the need for the
search , we cannot conclude that he plausibly violated Ricks’ right to be free from “cruel and unusual punis hments.” By this, w e do not intend to trivialize Ricks’ allegations , nor suggest that he did not suffer harm . Rather, the Constitution may require more detail in his pleadings before a federal court recognizes his claim.

We have maintained that imprison ed pro se litigants
“o ften lack the resources and freedom necessary to comply with the technical rules of modern litigation.” Mala v. Crown Bay Marina, Inc. , 704 F.3d 239, 244

– 45 (3d Cir. 2013)

. Now that Ricks is represented ably by pro bono counsel, he should be given another chance to amend his complaint to allege
facts specif

ying the incident’s seriousne ss or severity , as well as its purpose , and any other facts that would provide context

. Whether his complaint as amended will be sufficient is a20 matte r yet to be determined. In particular, the controlling legal principles we announce today must be applied to the
facts alleged

. But Ricks should have the opportunity to present allegations with due consideration to the law which
controls his case

. We wi ll therefore vacate the District
Court’s dismissal of his sexual abuse claim against Keil and
remand so that he can re

- plead his claim

.

b. Sexual Abuse Claim Against Lieutenant
Shover

Ricks raises an independent sexual abuse claim against
L t. Shover, who m he claims participated in the alleged abuse by failing to end it. As pleaded, this claim is insubstantial because the encounter was so brief that, even viewed in the light most favorable to Ricks, Shover simply would have had no opportunity to instruct Keil to stop.

The incident ’s brevity similarly defeats Ricks’ failure

t o

- intervene claim against Shover . An office r’s failure to stop an ongoing c onstitutional violation violates the Eighth Amendment when he “had a reasonable opportunity to
intervene a nd simply refused to do so.” Smith , 293 F.3 d at 650

– 51. According to Ricks, Shover had the opportunity when Ricks verbally protested to him, and refused to intervene and punished Ricks for seeking assis tance. But again, the alleged violation was over be fore Ricks called out
to Shover. And Smith cautions that liability will only attach if the opportunity to intervene is “realistic and reasonable.” Id.
at 651. While Shover ’ s alleged reaction is disturbing, it is
better add ressed through an excessive forc e claim , as we discuss below, than through a failure

- to

- intervene claim

. We
therefore will affirm in part, because the District Court21 properly dismissed t his claim

, and amendment with respect to
this claim would be futile.

B. Excessive Force Claim

Rick s frames his excessive force claim only agai nst Lt.
Shover . The thrust of his complaint is straightforward: h e alleges that Shover unlawfull y used excessive force when he slammed Ricks into a wall with enough force to cause injury.
He further avers that he sustained injuries to his head, neck, and back, a black eye, and a “busted” nose and lip. A. 15.
He d oes not plead any facts r especting medical treatment of these alleged injuries.

We have clarified that “the pivotal inquiry in reviewing an inmate ’ s § 1983 claim for excessive force is ‘whether force was applied in a good

- faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm

. ’” Smith , 29 3 F. 3d at 649 (quoting Brooks v. Kyler , 204 F.3d 102, 106 (3d Cir. 2000)). In conducting this analysis of the officer’s intent , we consider five factors: “(1) the nee d for the application of force; (2) the relationship between the need
and the amount of force that was used; (3) the extent of the injury inflicted; (4) the exten t of the threat to the safety of staff and inmates, as reasonably perceived by responsible
officials on the ba sis of facts known to them; and (5) any efforts made to temper the severi ty of the forceful response.”
Id. (quoting Brooks , 204 F.3d at 106). Th e objective component of the excessive force inquiry is met when “the inmate’s injury was more than de minimis .” Fuentes v. Wagner , 206 F.3d 335, 345 (3d Cir. 2000).22 Here, the District Court correctly cited Smith

, but did

not evaluate the facts under t hose factors . Ricks a vers that a

proper an alysis under the factors would lead to the conclusion
that he plausibly alleged an Eighth Amendment violation.
A ffording him, as a plaintiff proceeding pro se , the benefit of any doubt, we agree that his complain t should not have been
dismissed.

While Ricks’ pleading may not have been detailed enough for the Court to analyze all of the factors, certainly the allegations of his being “ slammed” and the injuries caused suggest a use of force that was out of propor tion to the
relative calm of the situation. With further pleading or discovery

, the need for the use of force (like the penological purpose or state of mind), threat to safety, an d extent of injuries can be further developed. But, v iewing the sparse

reco rd and our responsibility to construe Ricks’ complaint liberally, we cannot conclude that he has failed to state a plausible claim for relief. 7

While we express no view as to the merits of Ricks’ claim against Shover , we conclude that the District Court erred by dismissing his complaint for failure to state a claim. Accordingly, we will reverse the District Court’s order with respect to his excessive force claim , and remand for further proceedings

.

7 We al so note that at oral argument, D efendants’ counsel all but conceded the point. See Oral Argument at 31:53, Ricks v.
Shover (No. 16

- 2939) ( 3d Cir. Feb. 9, 2018).23 III. C ONCLUSION

T he District Court based its dismis sal of Ricks’ sexual
abuse claim against Officer Keil on an incomplete understanding of the law that we clarify today. And al though it properly dismissed Ricks’ independent sexual abuse claim against Shover, the Court prematurely dismissed his
excessive f

orce claim against him

. Therefore, we will vacate the Court’s order insofar as it d ismissed the sexual abuse
claim a gainst Officer Keil, affirm the portion of the order dismissing the sexual abuse claim against Shover, reverse the portion of the order dis missing the excessive force claim against Shover, and remand for further proceedings consistent
with this O pinion.