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-03618)

District Judge: Honorable Wendy Beetlestone

________________________________

Argued on February 8, 2018

Before: CHAGARES, SCIRICA, and RENDELL, 

Circuit Judges

(Opinion filed: June 5, 2018)
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 Deputy Attorney General

Chief, 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-Appellant Gregory Ricks, 

a former inmate at Pennsylvania State Corrections facility 

SCI-Graterford, appeals the dismissal of his complaint 
3

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 that Shover “slammed” Ricks against 

the wall, causing injuries to his face, head, neck, and back. 

A. 15.

Ricks proceeded pro se, and before the merits of his 

claims could be tested, the District Court granted a motion to 

dismiss for failure to state a claim, with leave to amend. 

Ricks did not amend his complaint, and the 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District Court cited our Circuit’s non-precedential opinion, 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 

unusual punishment” under the Eighth Amendment is a 

matter of first impression in our Court. We write today to 

state in plainest terms that it does. Our society requires 

prisoners to give up their liberty, but that surrender does not 

encompass the basic right 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 as 
4

discussed herein. Although his sexual 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. We will therefore affirm in 

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

order, and remand for further proceedings consistent with this 

opinion.

I. BACKGROUND

A. Facts

In reviewing the District Court’s dismissal order, we 

accept as true the following facts, set forth 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 

Keil2 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 against” 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 Commonwealth 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 asked 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 then told Ricks to place his hands 

behind his back so he could be cuffed and returned 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 harassed 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 Pennsylvania 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 

harassment in this appeal.
6

cause of action, citing our non-precedential 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” to an Eighth Amendment 

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 dismissed 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 claims; 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. DISCUSSION

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 appointed counsel, which we 

granted, Ricks filed a motion for extension of time to amend 

his complaint. Ricks’ attorney is appearing pro bono. We 

express our gratitude to him for accepting this matter 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 under 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, and affirm the dismissal only if the well-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) (quoting U.S. 

Const. amend. VIII). A properly stated Eighth Amendment 

claim must allege a subjective 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 conduct 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 force (against Lt. Shover only). We 

examine each in turn.

A. Sexual Abuse Claim

Whether sexual abuse of inmates by prison officials

offends the Eighth Amendment is a matter of first impression 

in our Court. Today, we join numerous sister Circuits in 
8

holding that prison sexual abuse can violate the Constitution. 

See Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012); 

Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2000); 

Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000); 

Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th 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 punishment.” Crawford v. Cuomo, 

796 F.3d 252, 260 (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 offenses 

against society.” Boddie, 105 F.3d at 861 (quoting Farmer v. 

Brennan, 511 U.S. 825, 834 (1994)). 

1. Legal Framework

Though the Supreme Court has not addressed sexual 

abuse of inmates by prison officials, courts grappling with 

this issue have drawn from the Supreme Court’s excessive 

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 framework 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 harassment by prison officials as 

well. See, e.g., id. (describing the Hudson test’s objective 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 (8th Cir. 1997) (same).
9

In particular, the United States Court of Appeals for 

the Second Circuit’s reasoning in its two 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 plaintiff 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 into 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 severe 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 declared

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—although 

on the facts before it, the Court declined to find a sufficiently 

objective harm in order to state a constitutional 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 entirely 
10

gratuitous and devoid of penological purpose.” Crawford, 

796 F.3d. at 257 (emphasis added). In Crawford, one of the 

two plaintiffs alleged that during a frisk in the middle of a 

visit 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 alleged 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 penological 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 Eighth Amendment sexual abuse 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 

less than repetitive abusive conduct.” Id. at 257 (emphasis 

added).
11

Here, without 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 that 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 for 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 incident 

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 consider whether 

the official had a legitimate 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 admitted, [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 mind. 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, a 
12

violation is self-evident because there can be no penological 

justification for such contact.”). 

While the subjective 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 implicates the Constitution. 

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 gives 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, the 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 decency.’” 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 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.” 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 fondling of 

an inmate’s genitals” is constitutional). 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. 

But 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 and inmate’s genitalia was initially justified, if the 

officer finds no contraband, continued sexual contact may be 

actionable.” Id. at 257. 

Absent a legitimate penological purpose, the type of 

touching involved in, for instance, a body-cavity search, 
14

would be undoubtedly cruel and unusual. 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 intrusive search is constitutional. 

We have previously discussed this distinction as it

pertains to claims for unconstitutional prison conditions. In 

Parkell v. Danberg, where an inmate was “subjected to 

thrice-daily 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, 335–36 (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 

necessary, but not sufficient, inquiry.

Fusing 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 objective 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 constitutional 

cognizability based on a lack of objective seriousness.

As noted above, a single incident, if sufficiently 

serious or severe, can run afoul of the Eighth Amendment as 

surely as can multiple, less egregious incidents. While a
15

pattern of harassment and sexualized touching may more 

clearly be considered objectively “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 draws 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 lasting 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 posits 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 abuse, perhaps acknowledging 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

current 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 rapidly, and we are mindful that 

behavior 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 claims are objectively 

serious to a constitutional degree.

When considering contemporary standards of decency, 

we 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 (2005). We also examine the “consistency of the 

direction of change.” Atkins v. Virginia, 536 U.S. 304, 315 

(2002).

In recent years, both the federal government and all 

but two of the states have passed legislation outlawing sexual 

activity between 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 compensable 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 standard 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 statute 
17

defines “rape” so as to overtly encompass severe misconduct. 

See id. § 30309(9) (defining “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 prisonerinitiated 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 

touching 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 zerotolerance standard for minor sexual touching. 

Nor do similar state enactments criminalizing sexual 

contact between inmates 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 constitutionalize “every 

malevolent touch.”

As this inquiry is necessarily contextual, fact-specific,

and to be conducted in the first instance by the District Court, 

we decline to craft a mechanical factors test for when sexual
18

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 objectively serious sexual contact would include 

sexualized fondling, coerced sexual activity, combinations of 

ongoing harassment and abuse, and exchanges of sexual 

activity for special 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 now consider Ricks’ claims against Officer Keil 

and Lt. Shover.

a. Sexual Abuse Claim Against Officer Keil

We are wary of setting a constitutional 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 misconduct. 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 

excluded from constitutional cognizance. This is a factspecific inquiry. Because we cannot definitively 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, inappropriate 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 from 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 punishments.” By 

this, we 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 imprisoned pro se litigants 

“often 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 specifying the incident’s seriousness or severity, as well 

as its purpose, and any other facts that would provide context. 

Whether his complaint as amended will be sufficient is a 
20

matter 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 will 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 

Lt. Shover, whom 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’ failureto-intervene claim against Shover. An officer’s failure to stop 

an ongoing constitutional violation violates the Eighth 

Amendment when he “had a reasonable opportunity to 

intervene and simply refused to do so.” Smith, 293 F.3d 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 assistance. But 

again, the alleged violation was over before 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 addressed through an excessive force claim, as we 

discuss below, than through a failure-to-intervene claim. We 

therefore will affirm in part, because the District Court 
21

properly dismissed this claim, and amendment with respect to 

this claim would be futile.

B. Excessive Force Claim

Ricks frames his excessive force claim only against Lt. 

Shover. The thrust of his complaint is straightforward: he 

alleges that Shover unlawfully 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 does not plead any facts respecting 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, 293 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 need 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 extent of the threat to the safety of 

staff and inmates, as reasonably perceived by responsible 

officials on the basis of facts known to them; and (5) any 

efforts made to temper the severity of the forceful response.” 

Id. (quoting Brooks, 204 F.3d at 106). The 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 those factors. Ricks avers that a 

proper analysis under the factors would lead to the conclusion

that he plausibly alleged an Eighth Amendment violation. 

Affording him, as a plaintiff proceeding pro se, the benefit of 

any doubt, we agree that his complaint 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 proportion 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, and extent of 

injuries can be further developed. But, viewing the sparse 

record 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 also note that at oral argument, Defendants’ 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. CONCLUSION

The District Court based its dismissal of Ricks’ sexual 

abuse claim against Officer Keil on an incomplete 

understanding of the law that we clarify today. And although 

it properly dismissed Ricks’ independent sexual abuse claim 

against Shover, the Court prematurely dismissed his 

excessive force claim against him. Therefore, we will vacate 

the Court’s order insofar as it dismissed the sexual abuse 

claim against Officer Keil, affirm the portion of the order 

dismissing the sexual abuse claim against Shover, reverse the 

portion of the order dismissing the excessive force claim 

against Shover, and remand for further proceedings consistent 

with this Opinion.