14‐969‐cv Crawford v. Cuomo, et al.

In the United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2014

ARGUED: FEBRUARY 24, 2015 DECIDED: AUGUST 11, 2015

No. 14‐969

JAMES CRAWFORD and THADDEUS CORLEY, Plaintiffs‐Appellants,

v.

ANDREW CUOMO as Governor of the State of New York, in his official capacity; BRIAN FISCHER, Commissioner of Department of Corrections and Community Supervision, in his official capacity; Superintendent WILLIAM P. BROWN, in his personal and official capacities; Superintendent WILLIAM LARKIN, in his official capacity; Corrections Officer SIMON PRINDLE; and JOHN DOE CORRECTIONS OFFICERS 1‐8, Defendants‐Appellees.1 ________

Appeal from the United States District Court for the Northern District of New York. No. 13 Civ. 406 – Norman A. Mordue, Judge. ________

1 The Clerk of the Court is directed to amend the caption as set forth above. 2 No. 14‐969‐cv

Before: KATZMANN, Chief Judge, WALKER and LYNCH, Circuit Judges. ________ On March 5, 2014, the district court (Norman A. Mordue, J.)

dismissed a complaint filed by Thaddeus Corley, an inmate at the Eastern

Correctional Facility (“ECF”), and James Crawford, a former ECF inmate,

alleging that Corrections Officer Simon Prindle sexually abused them and,

in doing so, subjected them to cruel and unusual punishment in violation of

the Eighth Amendment. In dismissing the case, the district court concluded

that the complaint failed to state a claim under Boddie v. Schnieder,

(2d Cir. 1997), which set forth the standard for stating an Eighth

Amendment claim arising from sexual abuse in prison. Crawford and

Corley appealed, arguing that the district court construed our opinion in

Boddie too narrowly. We agree.

We write today to clarify the rule set forth in Boddie: 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. Moreover, we recognize that sexual abuse of

prisoners, once passively accepted by society, deeply offends today’s 3 No. 14‐969‐cv

standards of decency. The proper application of the rule in Boddie must

reflect these standards.

By alleging that Officer Prindle fondled their genitals for personal

gratification and without penological justification, Crawford and Corley

stated a cognizable Eighth Amendment claim. Accordingly, we REVERSE

the district court’s order dismissing the complaint and REMAND the case

for further proceedings consistent with this opinion.

________

ADAM D. PERLMUTTER, Law Offices of Adam D. Perlmutter, P.C., New York, N.Y. (Daniel A. McGuinness, Law Offices of Adam D. Perlmutter, P.C., New York, N.Y.; Zachary Margulis‐Ohnuma, Law Office of Zachary Margulis‐Ohnuma, New York, N.Y., on the brief), for Plaintiffs‐Appellants.

FRANK BRADY, Assistant Solicitor General of Counsel (Barbara D. Underwood, Solicitor General, Andrew Ayers, Assistant Solicitor General of Counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, N.Y., for Defendants‐Appellees.

________

JOHN M. WALKER, JR., Circuit Judge:

On March 5, 2014, the district court (Norman A. Mordue, J.)

dismissed a complaint filed by Thaddeus Corley, an inmate at the Eastern 4 No. 14‐969‐cv

Correctional Facility (“ECF”), and James Crawford, a former ECF inmate,

alleging that Corrections Officer Simon Prindle sexually abused them and,

in doing so, subjected them to cruel and unusual punishment in violation of

the Eighth Amendment. In dismissing the case, the district court concluded

that the complaint failed to state a claim under Boddie v. Schnieder,

(2d Cir. 1997), which set forth the standard for stating an Eighth

Amendment claim arising from sexual abuse in prison. Crawford and

Corley appealed, arguing that the district court construed our opinion in

Boddie too narrowly. We agree.

We write today to clarify the rule set forth in Boddie: 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. Moreover, we recognize that sexual abuse of

prisoners, once passively accepted by society, deeply offends today’s

standards of decency. The proper application of the rule in Boddie must

reflect these standards. 5 No. 14‐969‐cv

By alleging that Officer Prindle fondled their genitals for personal

gratification and without penological justification, Crawford and Corley

stated a cognizable Eighth Amendment claim. Accordingly, we REVERSE

the district court’s order dismissing the complaint and REMAND the case

for further proceedings consistent with this opinion.

BACKGROUND

The following facts are taken from the complaint and must be

accepted as true for the purposes of deciding this appeal. See Bell Atl. Corp.

v. Twombly,

(2007) (“[A] judge ruling on a defendant’s

motion to dismiss a complaint must accept as true all of the factual

allegations contained in the complaint.” (internal quotation marks

omitted)).

I. The Alleged Incidents

On March 12, 2011, Thaddeus Corley, an ECF inmate, was visiting

with his wife when Corrections Officer Simon Prindle ordered him out of

the visiting room and sexually abused him. Prindle informed Corley that

“he was going to make sure Mr. Corley did not have an erection,” and after

ordering Corley to stand against the wall with his feet spread apart, Prindle 6 No. 14‐969‐cv

“paused to fondle and squeeze [his] penis.” App’x 9. When Corley

“jumped off the wall” in response, Prindle threatened him and told him to

“get back on the wall.” Id. at 10.

Four days later, Prindle abused a second ECF inmate, James

Crawford.2 As Crawford was leaving the mess hall, Prindle stopped him

and initiated a search. During the search, Prindle paused around

Crawford’s crotch, “grabbed” and “held” his penis and asked “what’s

that?” Id. Crawford responded: “That’s my penis, man.” Id. at 11. Prindle

pushed his knee into Crawford’s back, pinning him to the wall, tightened

his grip around the neck of Crawford’s sweatshirt, and told him to “stay on

the fucking wall” if he didn’t want Prindle to “ram [his] head into the

concrete.” Id. Prindle continued to “squeeze” and “fondle” the area around

Crawford’s penis and “roam” his hands down Crawford’s thigh. Id. 11‐12.

Throughout the search, Prindle told Crawford to “[s]tay on the fucking

wall” if he didn’t want to “go to the box,” which Crawford understood to

mean that Prindle would send him to solitary confinement if he resisted the

abuse. App’x 11. When Crawford told Prindle that the search was not in

2 Crawford has since been released on parole. 7 No. 14‐969‐cv

accordance with search and frisk procedures, Prindle responded: “You

don’t have any rights in here. . . . I’ll run my hands up the crack of your ass

if I want to.” Id. at 12. As a result of these incidents, Crawford and Corley

allege that they have suffered psychologically and sought help from mental

health professionals.

The complaint also alleged that at least 20 inmate grievances

complained of sexual abuse or harassment by Prindle. On certain occasions,

Prindle demeaned Crawford and other inmates by telling them that he had

“seen a little boy like [them] before on the internet” or that he had seen their

penises. Id. at 14. And on other occasions, Prindle claimed that inmates

were not properly complying with anal‐cavity search procedures and

ordered the inmates to repeatedly bend over and spread their buttocks for

him.

II. Procedural History

On April 12, 2013, Crawford and Corley filed a complaint in the

United States District Court for the Northern District of New York alleging

that Prindle’s sexual abuse violated their Eighth Amendment right to be

free from cruel and unusual punishment. In addition to Prindle, the 8 No. 14‐969‐cv

complaint named as defendants Superintendent William P. Brown,

Prindle’s supervisor, as well as others.3 The complaint alleged that Brown,

who failed to take action against Prindle despite receiving more than 20

inmate grievances alleging similar abuse, either intentionally allowed

Prindle to sexually abuse inmates as a means of controlling them or was

deliberately indifferent to Prindle’s abusive conduct. Crawford and Corley

sought monetary damages and an injunction prohibiting Prindle from

having contact with inmates.

Defendants filed a motion to dismiss the complaint under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim. In support of the

motion, Defendants cited our opinion in Boddie v. Schnieder,

(2d

Cir. 1997), which set forth the standard for stating an Eighth Amendment

claim arising from sexual abuse in prison. Based on its understanding of

Boddie, the district court dismissed the Eighth Amendment cause of action

for failing to state a claim and dismissed the state law claims for lack of

jurisdiction. Crawford and Corley timely appealed.

The complaint named as defendants in their official capacities Governor Andrew 3

Cuomo; Brian Discher, the Commissioner of the State of New York Department of Corrections and Community Supervision; Superintendent William Larkin, the current superintendent of ECF; and John Does 1‐8, corrections officers who were present when Prindle committed the sexual abuse and did not intervene. 9 No. 14‐969‐cv

DISCUSSION

We review de novo a district court’s decision to dismiss a complaint

pursuant to Rule 12(b)(6), accepting all factual allegations as true and

drawing all reasonable inferences in the plaintiff’s favor. Johnson v.

Priceline.com, Inc.,

(2d Cir. 2013). To survive a 12(b)(6)

motion, the complaint must contain factual allegations that plausibly give

rise to an entitlement to relief. Ashcroft v. Iqbal,

(2009).

Crawford and Corley argue that, in dismissing the complaint for

failing to stating an Eighth Amendment claim, the district court erred

because it too narrowly construed the standard established in Boddie. We

agree. Boddie recognized that a single act of sexual abuse may violate the

Eighth Amendment if, as in this case, it is entirely gratuitous and devoid of

penological purpose. Moreover, in the nearly two decades since Boddie was

decided, societal standards of decency regarding sexual abuse and its

harmful consequences have evolved. Without suggesting that Boddie was

wrongly decided in 1997, we conclude that the result in that case would

likely be different applying the same rule today.

10 No. 14‐969‐cv

I. Eighth Amendment Claims

The Eighth Amendment protects prisoners from cruel and unusual

punishment by prison officials. Wilson v. Seiter,

(1991). To

state an Eighth Amendment claim, a prisoner must allege two elements, one

subjective and one objective. First, the prisoner must allege that the

defendant acted with a subjectively “sufficiently culpable state of mind.”

Hudson v. McMillian,

(1992) (internal quotation marks omitted).

Second, he must allege that the conduct was objectively “harmful enough”

or “sufficiently serious” to reach constitutional dimensions.

.

Analysis of the objective prong is “context specific,” Hogan v. Fischer,

(2d Cir. 2013) (internal quotation marks omitted), and

“depends upon the claim at issue,” Hudson,

. Although not

“every malevolent touch by a prison guard gives rise to a federal cause of

action,” the Eighth Amendment is offended by conduct that is “repugnant

to the conscience of mankind.”

at 9‐10 (internal quotation marks

omitted). Actions are repugnant to the conscience of mankind if they are

“incompatible with evolving standards of decency” or involve “the 11 No. 14‐969‐cv

unnecessary and wanton infliction of pain.”

at 10 (quoting Estelle v.

Gamble,

, 102‐03 (1976)).

a. Boddie

In Boddie, we left no doubt that sexual abuse by a corrections officer

can give rise to an Eighth Amendment claim.

. With respect

to the Eighth Amendment’s objective component, Boddie made clear 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.”4

. We held, however, that Boddie failed to

state an Eighth Amendment claim after a female corrections officer made a

pass at an him, squeezed his hand, touched his penis, called him a “sexy

black devil,” and bumped into him “with her whole body vagina against

penis.” See

at 859‐60. We concluded that no single incident was

sufficiently serious and that the series of incidents were not “cumulatively

egregious” enough to reach constitutional dimensions.

.

Boddie also made clear that “[w]here no legitimate law enforcement or penological 4

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.”

; see also Hogan,

. Here, the parties do not dispute that Crawford and Corley have satisfied the subjective prong. Accordingly, we focus our analysis on the Eighth Amendment’s objective component. 12 No. 14‐969‐cv

Applying Boddie and other district court cases interpreting Boddie, the

district court concluded that the isolated instances during which Prindle

fondled Crawford and Corley’s genitalia did not rise to the level of a

constitutional violation. The district court reasoned that, under Boddie,

sexual abuse only states a cognizable Eighth Amendment claim if it occurs

on more than one occasion, is “excessive in duration,” involves direct

contact with an inmate’s genitalia (rather than contact through an inmate’s

clothing, as was the case here), or causes “physical injury, penetration, or

pain.” App’x 28‐30.

Boddie does not support that narrow interpretation. Boddie held that

sexual abuse by a corrections officer may constitute cruel and unusual

punishment if it is “severe or repetitive.”

(emphasis added).

Thus, 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. Recurrences of abuse, while not a prerequisite for liability,

bear on the question of severity: Less severe but repetitive conduct may still

be “cumulatively egregious” enough to violate the Constitution.

13 No. 14‐969‐cv

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. 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. Similarly, if the situation is reversed and

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 violation is self‐evident because there can be no penological

justification for such contact. And even if contact between an officer and an

inmate’s genitalia was initially justified, if the officer finds no contraband,

continued sexual contact may be actionable.

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. See Whitley v. Albers,

, 320‐21 (1986) (explaining that 14 No. 14‐969‐cv

the Eighth Amendment analysis turns on “whether force was applied in a

good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm” (internal quotation marks

omitted)); accord Hudson, 503 U.S. at 6‐7 (same).

To be sure, prison officials looking for contraband may subject

inmates to reasonable strip searches and cavity searches. Bell v. Wolfish,

(1979). Indeed prison security and safety may require frequent

searches of an intensely personal nature―and not every such search is

properly the subject of a lawsuit. Searches that do not uncover contraband

may be no less penologically justified than those that do. And even an

officer who is meticulous in conducting a search does not violate an

inmate’s constitutional rights as long as the officer had no intention of

humiliating the inmate or deriving sexual arousal or gratification from the

contact. But a search may not be undertaken maliciously or for the

purposes of sexually abusing an inmate. See Hudson v. Palmer,

(1984).

15 No. 14‐969‐cv

b. Application

The unjustified conduct alleged here is unquestionably “repugnant to

the conscience of mankind” and therefore violates the Eighth Amendment.

Whitley,

(quoting Estelle,

); see also United States

v. Walsh,

(2d Cir. 1999) (holding that a prison guard who

repeatedly stepped on a prisoner’s penis acted “contrary to contemporary

standards of decency” (internal quotation marks omitted)); Washington v.

Hively,

(7th Cir. 2012) (“An unwanted touching of a

person’s private parts, intended to humiliate the victim or gratify the

assailant’s sexual desires, can violate a prisoner’s constitutional rights

whether or not the force exerted by the assailant is significant.”); Schwenk v.

Hartford,

(9th Cir. 2000) (“A sexual assault on an inmate

by a guard―regardless of the gender of the guard or of the prisoner―is

deeply offensive to human dignity.” (internal quotation marks omitted)).

Accepting the facts alleged in the complaint as true, Prindle violated

Corley’s rights by “fondl[ing] and squeeze[ing] [his] penis” in order to

“make sure Mr. Corley did not have an erection.” App’x 9. There is no

penological justification for checking to see if an inmate has an erection, and 16 No. 14‐969‐cv

Prindle does not argue otherwise. Moreover, Prindle executed the frisk in

the middle of Corley’s visit with his wife, rather than at the beginning or

end of the visit. The timing, combined with Prindle’s stated reason for

initiating the frisk, suggests that the frisk was pretext for sexual abuse. Cf.

Wolfish,

(stating that the constitutionality of a prison body‐

cavity search turns on, among other things, “the manner in which it is

conducted, the justification for initiating it, and the place in which it is

conducted”). Under Boddie, no amount of gratuitous or sexually‐motivated

fondling of an inmate’s genitals―even if limited in duration or conducted

through the inmate’s clothes, as was the case here―is permitted by the

Constitution.

Similarly, Prindle violated Crawford’s rights when he allegedly

“squeezed” and “fondled” Crawford’s penis and “roamed” his hands down

Crawford’s thigh. App’x 11‐12. In the circumstances alleged, the extensive

search of Crawford’s genitalia was not incident to any legitimate duties. See

Whitley, 475 U.S. at 320‐21. Moreover, Prindle’s demeaning comments,

including the statements “[t]hat doesn’t feel like a penis to me,” App’x 11,

“I’ll run my hands up the crack of your ass if I want to,” id. at 12, and 17 No. 14‐969‐cv

subsequent taunts about having seen Crawford’s penis, id. at 14, suggest

that Prindle undertook the search in order to arouse himself, humiliate

Crawford, or both.

c. Contemporary Standards of Decency

The standard set forth in Boddie, which condemns Prindle’s alleged

conduct, remains the same today. But in determining the application of that

standard, the Eighth Amendment requires courts to “look beyond historical

conceptions to the evolving standards of decency that mark the progress of

a maturing society.” Graham v. Florida,

(2010) (internal

quotation marks omitted). We must therefore also recognize that particular

conduct that might not have risen to the level of an Eighth Amendment

violation 18 years ago may no longer accord with community standards,

and for that reason may state a claim today.

To ascertain contemporary standards of decency, courts begin by

reviewing “objective indicia of consensus, as expressed in particular by the

enactments of legislatures that have addressed the question.” Roper v.

Simmons,

(2005). Subsequent enactments by state and

federal legislatures show that standards of decency with regard to sexual 18 No. 14‐969‐cv

abuse in prisons have evolved since 1997. At the time Boddie was written, 18

states and the District of Columbia expressly criminalized corrections

officers’ sexual contact with inmates.5 Today, all but two states6 criminalize

sexual contact between inmates and corrections officers.7 Moreover, many

of the states that had enacted state laws proscribing officer‐inmate sexual

contact prior to Boddie have, in the intervening years, adopted additional

See Ariz. Rev. Stat. Ann. § 13‐1419;

; Conn. Gen. Stat. § 53a‐ 5

73a; D.C. Code § 22‐3014;

; Ga. Code Ann. § 16‐6‐5.1; Haw. Rev. Stat. § 707‐732(e); Idaho Code § 18‐6110;

;

;

.520c (criminalizing sexual contact where the actor has authority over the victim); N.J. Stat. Ann. §§ 2C:14‐2, 2C:14‐3; N.M. Stat. Ann. § 30‐9‐11;

(3);

.1‐20‐07; R.I. Gen. Laws § 11‐25‐24; S.D. Codified Laws § 22‐22‐7.6;

;

. 6 Since Boddie, 30 states criminalized sexual contact between corrections officers and

inmates. See Ala. Code § 14‐11‐31;

; Ark. Code Ann. § 5‐14‐ 127(a)(2); Colo. Rev. Stat. § 18‐7‐701; 720 Ill. Comp. Stat. 5/11‐9.2; Ind. Code § 35‐44.1‐3‐10; Kan. Stat. Ann. § 21‐5512;

; Me. Stat. Tit. 17‐A, § 255‐A; Md. Code Ann. Crim. Law § 3‐314; Mass. Gen. Laws ch. 268, § 21A;

; Miss. Code Ann. § 97‐3‐104;

; Mont. Code Ann. § 45‐5‐502; Neb. Rev. Stat. §§ 28‐322; 28‐322.01;

; N.H. Rev. Stat. Ann. §§ 632‐A:3; 632‐ A:4; N.C. Gen. Stat. § 14‐27.7 (criminalizing sexual contact where the actor has custody over the victim);

;

;

; S.C. Code Ann. § 44‐23‐1150(c)(2); Tenn. Code Ann. § 39‐16‐408; Utah Code Ann. § 76‐5‐412;

.2‐67.4;

; Wash. Rev. Code § 9A.44.170; W. Va. Code §§ 61‐8B‐2, 61‐8B‐7; Wyo. Stat. Ann. § 6‐2‐304. Delaware and Oklahoma only criminalize sexual intercourse or penetration, rather than sexual contact more broadly. See

;

(A)(7). 7 Although the precise conduct prohibited varies by state, sexual contact is generally

defined as intentional contact, for the purpose of sexual arousal, gratification, or abuse, of an inmate’s sexual or intimate areas by a corrections officer, or of an officer’s sexual or intimate areas by an inmate, or of the clothing covering either the inmate or officer’s sexual or intimate areas. See, e.g., Ala. Code § 14‐11‐30(3). 19 No. 14‐969‐cv

laws and policies to prevent sexual abuse in prison.8 And in 2003, Congress

unanimously passed the Prison Rape Elimination Act (“PREA”), 42 U.S.C.

§§ 15601‐15609―the first federal law to address the sexual abuse of

prisoners.9 These legislative enactments are the “clearest and most reliable

objective evidence of contemporary values.” Atkins v. Virginia,

(2002) (internal quotation marks omitted). It is not only the number of

state laws that is significant, but “the consistency of the direction of change”

in the law.

These laws and policies reflect the deep moral indignation

that has replaced what had been society’s passive acceptance of the problem

of sexual abuse in prison. They make it clear that the sexual abuse of

Some states have enacted laws further prohibiting sexual abuse. See, e.g., N.Y. Penal 8

Law § 130.52 (“A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.”). Other states have adopted additional prison policies and regulations. For example, the Michigan Department of Corrections “enacted cutting‐edge policies to curb sexual assault” in prisons after Congress passed the PREA. Maurice Chammah, Rape in the American Prison, The Atlantic (Feb. 25, 2015), available at http://www.theatlantic.com/features/archive/2015/02/rape‐in‐the‐american‐prison/ 385550/. 9 See Pat Nolan & Marguerite Telford, Indifferent No More: People of Faith Mobilize to End

Prison Rape,

, 138‐39 (2006) (noting that the PREA was a model of bipartisan cooperation, which Congress passed unanimously). The PREA defines rape to include not only penetration, but oral sodomy, sexual assault with an object, and fondling.

(9). 20 No. 14‐969‐cv

prisoners, once overlooked as a distasteful blight on the prison system,

offends our most basic principles of just punishment.

In light of this evolution, while the standard articulated in Boddie

remains the same, “its applicability must change as the basic mores of

society change.” Kennedy v. Louisiana,

(2008) (quoting

Furman v. Georgia,

(1972) (Burger, C.J., dissenting)).

Accordingly, 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, and for that reason, we believe that the officer’s

conduct in Boddie would flunk its own test today.10

Additionally, today―more so than 18 years ago―we recognize that a female 10

corrections officer is equally capable of sexually abusing a male inmate and the harm that can result from such abuse. See, e.g., David Kaiser and Lovisa Stannow, The Shame of Our Prisons: New Evidence, N.Y. Rev. of Books (Oct. 24, 2013), available at http://www.nybooks.com/articles/archives/2013/oct/24/shame‐our‐prisons‐new‐evidence/ (noting that past experience has shown that “many people do not take sexual abuse committed by women as seriously as abuse committed by men,” including “many corrections officers”); see also Schwenk,

(“A sexual assault on an inmate by a guard―regardless of the gender of the guard or of the prisoner―is deeply offensive to human dignity.” (internal quotation marks omitted)). There is also greater awareness of not only the physical but psychological and economic harms caused by sexual assaults in prisons. See, e.g., PREA, 42 U.S.C § 15601 (finding that sexual abuse in prison results in higher rates of suicide, post‐traumatic stress disorder, depression, HIV, AIDS, tuberculosis, recidivism, and violent crime, among other things); Sarah K. Wake, Note, Not Part of the Penalty: The Prison Rape Elimination Act of 2003,

, 223 (2006) (“[P]rison rape has a clear physical and economic impact upon everyone, not just those who are victimized.”). 21 No. 14‐969‐cv

II. Qualified Immunity

Defendants argue that qualified immunity shields Prindle and Brown

from liability because it was objectively reasonable for them to believe that

Prindle’s alleged sexual abuse did not violate the Eighth Amendment.

Because the district court dismissed the complaint, it did not address

whether Prindle and Brown are entitled to qualified immunity, and the

parties did not thoroughly brief the issue on appeal. We therefore remand

the case to the district court to decide the qualified immunity question in the

first instance.

CONCLUSION

For the reasons stated above, we REVERSE the district court’s order

dismissing the complaint and REMAND for further proceedings consistent

with this opinion.