21

- 997 Daum v. Devlin



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY O RDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 6 t h da y of J u n e , two thousand twenty

- three

. 3 4 PRESENT: 5 BARRINGTON D. PARKER , 6 MICHAEL H. PARK , 7 ALISON J. NATHAN , 8 Circuit Judges. 9

_____________________________________ 10 11 Terry Daum , 12 13 Plaintiff

- Appellant, 14 15

v. 21

- 997

- pr 16 17 Captain Devlin, Sergeant Cross, 18 Corrections Officers C. Stickney , 19 20 Defendants

- Appellees

. * 21

_____________________________________ 22 23 24

* The Clerk of Court is respectfully directed to amend the caption accordingly.2 FOR PLAINTIFF

- APPELLANT : A DAM L. D EMING , Boston, 1 MA ( John E. Roberts
, 2 Boston, MA; Mark D. Harris, 3 Shiloh Rainwater, New York, 4 NY, on the brief ), Proskauer 5 Rose LLP

. 6 7 FOR DEFENDANT S

- APPELL EE S : C HRIS L IBERATI

- C ONANT , 8 Assistant Solicitor General 9 (Jeffrey W. Lang, Deputy 10 Solicitor General, Barbara D. 11 Underwood, Solicitor 12 General, on the brief ), for 13 Letitia James, Attorney 14 General of New York, 15 Albany, NY

. 16 17
Appeal from a judgment of the United States District Court for the Northern District of 18
New York ( Hurd
, J

. ). 19

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 20

DECREED that the judgment of the district court is VACATED and REMANDED

. 21

Plaintiff

- Appellant Terry Daum appeals from the district court’s dismissal of his Eighth 22

A mendment claims for sexual abuse and failure to intervene against Defendants

- Appellees 23
Correction Officer Chad Stickney, Captain Patrick Devlin, and Sergeant Cross

. At the time of 24
the alleged incidents, Daum was an inmate at Clinton Correctional Facility in Dannemora, New 25

York. Daum alleges that correctional officers sexually abused him du ring two pat

- frisks. First, 26
after setting off a metal detector, a correctional officer pat frisked Daum, which allegedly involved 27

the officer groping “plaintiff’s genitals several times, ” “utiliz[ing] his hand to aggressively rub 28
against plaintiff’s rectu m several times (like a credit card swipe) ,” and “attempt[ing] to jam his 29
finger tips into plaintiff’s rectum.” Am. Compl. ¶ 12. A fter Daum called his brother about the 303 incident, his brother called the facility to complain. Following his brother’s compl aint, Daum 1
was allegedly taken from his cell and, before “at least ten officers,” was subject to a second pat

2

frisk. Id. ¶ 16

. He allegedly “experienced a credit

- card swipe against his rectum” again. Id. 3

Daum sued pro se under 42 U.S.C. § 1983 for sexu al abuse and failure to intervene in violation of 4
the Eighth Amendment. 5
The district court granted Daum in forma pauperis status, and under 28 U.S.C. §§ 1951(e), 6

1915A conducted a sua sponte “initial screening” of “ the sufficiency of the allegations set forth in 7
the complaint.” App’x at App38. The district court dismissed the sexual

- abuse claim because 8
(1 ) Daum did not “claim that the pat

- frisk searches were conducted for any improper purpose,” 9
(2 ) “the allegations

. . . are not sufficiently extreme, repetitive, or severe to give rise to [a] 10
constitutional violation,” and (3) “Daum has not alleged that he sustained any physical injury as a 11

result of the incidents .” Id. at App46

- 47. The district court dismissed the failure

- to

- intervene 12

claim for the same reason s

. Although the district court granted Daum ’s motion to amend, the 13
district court adopted its prior analysis and reaffirmed its dismissal. On appeal, Daum argues that 14
the district court misapplied this Court’s decision in Crawford v. C uomo ( Crawford I ), 796 F.3d 15
252 (2d Cir. 2015), which sets for th the framework for Eighth Amendment sexual

- abuse claims. 16

Defendants contest Daum’s arguments under Crawford I and also raise, for the first time on appeal, 174 the defense of qualified immunity. We assume the parties ’ familiarity with the underlying facts, 1
the procedural history of the case, and the issues on appeal. 1 2
We vacate and remand the district court’s dismissal of Daum’s Eighth Amendment claims 3

because the district court did not properly apply Crawford I

. Under Crawford I , “severe or 4
repetitive sexual abuse of an inmate” may constitute an Eighth Amendment violation, including 5
“a single incident of sexual abuse, if sufficiently severe or serious.” 796 F.3d at 257

. “[A] n 6

inmate need not allege that there was penetration, physical injury, or direct contact with uncovered 7
genitalia. ” Id. “ A correction s officer’s intentional contact with an inmate’s genitalia or other 8
intimate area, which serves no penological purpose and is undertaken with the intent to gratify the 9
officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment.” Id. Here, the 10

district court dismissed Daum’s sexual

- abuse claim for failure to allege “any improper purpose ,” 11
“repetitive[] or severe” condu ct, and “any physical injury as a result of the incidents

. ” App’x at 12

App46

- 47. But to state an Eighth Amendment sexual

- abuse claim under Crawford I , Daum was 13
not required to allege “physical injury” or repetition. Crawford I , 796 F.3d at 257

. Moreover, 14

Daum ’s allegations about (1) the short gap in time between his brother’s complaint and the second 15

pat

- frisk and (2) the lack of any intervening incidents giving rise to suspicion permit a plausible 16

inference that the second pat

- frisk lacked a “penological purpose” and was “undertaken with the 17

intent to

. . . humiliate. ” Id. T he district court’s analysis of Daum’s failure

- to

- intervene claim 18

1 “We review de novo a district court’s dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We accept as true all facts described in the complaint.” Milan v. Werthe imer , 808 F.3d 961, 963 (2d Cir. 2015) (citation omitted).5 relied exclusively on its analysis of his sexual

- abuse claim, so we vacate the dismissal of Daum’s 1

failure

- to

- interv ene claim for the same reason. 2

O n remand, the district court should also consider qualified immunity. Although we may 3
consider qualified immunity even when Defendants did not raise the defense in the district court
, 4

see Burns v. Martuscello , 890 F.3d 77, 94 n.4 (2d Cir. 2018) , we decline to exercise that discretion 5

here. 6
For the foregoing reasons, the judgment of the district court is VACATED and 7

REMANDED

. 8

FOR THE COURT: 9 Catherine O ’ Hagan Wolfe, Clerk of Court 10 11