Smith v. Ohrman

Full title: DAVON SMITH, Plaintiff, v. NICHOLAS OHRMAN, Sgt. CO2, et al., Defendants.

Court: United States District Court, W.D. Pennsylvania

Date published: Jul 19, 2023

Civil Action 2:22-cv-01005 (W.D. Pa. Jul. 19, 2023)

Opinion

Civil Action 2:22-cv-01005

07-19-2023

DAVON SMITH, Plaintiff, v. NICHOLAS OHRMAN, Sgt. CO2, et al., Defendants.

LISA PUPO LENIHAN United States Magistrate Judge

Arthur J. Schwab, Judge

REPORT AND RECOMMENDATION ECF NO. 41

LISA PUPO LENIHAN United States Magistrate Judge

I. RECOMMENDATION

For the reasons set forth below, it is respectfully recommended that Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 41) pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part as more fully described below.

II. REPORT

A. Factual Background and Procedural History

Plaintiff Davon Smith is an inmate in the custody of the Pennsylvania Department of Corrections and is currently confined at the State Correction Institution at Huntingdon (“SCI-Huntingdon”). The events giving rise to this lawsuit occurred while Plaintiff was housed on L Block at SCI-Fayette and are summarized as follows.

On September 6, 2021, Plaintiff alleges that he was escorted to the property room by two unnamed officers at the direction of Defendant Sargent Ohrman to inventory property that was recently shipped to him. Compl. ¶14, ECF No. 19 at 11; Ex. A to Compl., ECF No. 19-1 at 1. Upon entering the property room, Plaintiff observed Defendant Ohrman searching his property. Id. Plaintiff stepped into the square located on the floor to inventory his property. Id. Defendant Ohrman told one of the unnamed officers to take Plaintiff's property box that he brought with him back to his cell. Id. Plaintiff asked Defendant Ohrman if he could inspect his property and Defendant Ohrman asked Plaintiff to sign the property inventory sheet and then responded in the affirmative. ECF No. 19 at 11, ¶15.

When Plaintiff stepped forward to inspect his property, Defendant Ohrman was standing to Plaintiff's left side with his back to the table. Id. As he was stepping to get behind Plaintiff, Defendant Ohrman's left hand gently rubbed Plaintiff's left thigh while grabbing the back of Plaintiff's restraint belt to which his hands were handcuffed. Id. Once behind Plaintiff, Defendant Ohrman allegedly rubbed his erect penis on Plaintiff's back and in between his buttocks in a humping manner. Id. Plaintiff attempted to spin around while telling Defendant Ohrman to get off him. Id. at ¶16. Defendant Ohrman told Plaintiff he was trying to see what he was touching. Id. Plaintiff responded that he was not touching anything. Id. The other guards present began to laugh. Id. At that specific time, Plaintiff was handcuffed by the waist so it would have been impossible for him to touch anything on the table from where he stood. Id. This interaction that occurred on September 6, 2021 will be referred to as the “First Incident.”

After Plaintiff returned to his cell on September 6, 2021, he filed a grievance alleging sexual abuse by Defendant Ohrman and accusing him of throwing away some of Plaintiff's property consisting of legal documents, shower shoes, mail and phone book allegedly in retaliation for filing grievances. Id. at ¶ 21; ECF No. 19-1 at 1-2. Defendant Rhonda House, the grievance coordinator, failed to assign a tracking number to this grievance in violation of DOC Policy allegedly in an attempt to discard or cover up the events. ECF No. 19 at 13, ¶ 21. On September 13, 2021, Defendant House rejected this grievance but indicated that it was being forwarded to the Security Office and Prison Rape Elimination Act (“PREA”) Compliance Manager for initiation of an investigation pursuant to Policy DC-ADM 008 Prison Rape Elimination Act (PREA).¹ Id.; see also Ex. A to Compl., ECF No. 19-1 at 3.

1 It appears from the DOC Rejection Form issued by Defendant House on September 13, 2021 that a grievance number was eventually assigned to the September 6, 2021 grievance-No. 945170. ECF No. 19-1 at 3.

On September 8, 2021, Plaintiff was standing at his cell door in his boxer shorts in preparation for a strip search prior to a shower. ECF No. 19 at 12, ¶ 17. Defendant Ohrman passed every other cell to go directly to Plaintiff's cell for a strip search. Id. Plaintiff undressed and handed Defendant Ohrman the items he was permitted to take with him to the shower. Id. Defendant Ohrman commanded Plaintiff to “shake his hair, ears, mouth, push his penis up left, right, lift testicles, turn around lift left foot, right foot, bend at the waist, spread and hold.” Id. Upon spreading, Defendant Ohrman asked Plaintiff if he had anything in there. Id. at ¶ 18. Plaintiff stood and turned around to face Defendant Ohrman and asked “have in where?” Id. Defendant Ohrman then told Plaintiff to bend, spread and hold again and Plaintiff complied. Id. Defendant Ohrman then asked Plaintiff is he was into anal sex. Id. Plaintiff stood again, faced Defendant Ohrman and asked why would he say something like that. Id. Defendant Ohrman responded with a smile and stated “because it look[s] like you take it up the ass.” Id. Plaintiff then asked Defendant Ohrman if he was a “faggot.” Id. at ¶ 19. Defendant Ohrman said that he would have someone bring his shower set-up and walked off. Id. Later on, Defendant Ohrman returned, taunting Plaintiff about what had transpired earlier and told Plaintiff that if he filed another grievance or PREA complaint, “he would make his life bad there. The choice was his.” Id. at ¶ 20. The above described interaction that took place on September 8, 2021 will be referred to as the “Second Incident.”

Later that day, Plaintiff filed another grievance identified as grievance no. 945202, complaining of sexual assault and harassment by Defendand Ohrman. Id.at ¶ 21; Ex. B. to Compl., ECF No. 19-2. This grievance was rejected by Defendant House on September 13, 2021 and forwarded to the Security Office and the PREA Compliance Manager for an investigation. ECF No. 19-2 at 3.

On September 14, 2021, Plaintiff received a PREA investigation notice from Defendant Debra Hawkinberry for the Second Incident which indicated that Defendant Ohrman was not to have any contact with Plaintiff pending the outcome of the investigation. ECF No. 19 at 13, ¶ 22; Ex. C to Compl., ECF No. 19-3. Defendant Ohrman was still allowed to work on L Block. ECF No. 19, at ¶ 22.

On October 11, 2021, Plaintiff submitted a Request Slip to Defendant Hawkinberry informing her that he never received a PREA investigation notice for the First Incident, that he is being retaliated against by the staff for filing grievances and PREA complaints, and asking for better protection from retaliation.² Id. at ¶ 23; Ex. D to Compl., ECF No. 19-4. Defendant Hawkinberry responded that she would forward his concerns to Defendant Lieutenant David John. Id.

2 Plaintiff states that he submitted the Request Slip attached to his Complaint as Exhibit D on October 13, 2021, but a review of that exhibit indicates that he actually submitted it on October 11, 2021 and it was received by Defendant Hawkinberry on October 13, 2021. Thus, it does not appear that Plaintiff submitted two request slips to Defendant Hawkinberry in October of 2021 as Defendants suggest in their Brief in Support of their Motion to Dismiss. See ECF No. 42 at 3.

On December 1, 2021, Plaintiff received another PREA investigation notice from Defendant Hawkinberry referencing an incident that occurred on September 5, 2021. ECF No. 19 at 14, ¶ 26. Subsequently, on December 12, 2021, Plaintiff filed a third grievance-no. 958891-explaining that he never alleged an incident on September 5, 2021 and complaining that the incident on September 6, 2021 for which he submitted a grievance/PREA complaint was never properly reported, investigated or acknowledged. ECF No. 19 at ¶ 26; Ex. E, ECF No. 19-5 at 1-2. Plaintiff's third grievance was rejected on December 14, 2021 as untimely. ECF No. 19-5 at 3. On December 18, 2021, Plaintiff wrote to the PREA coordinator in Harrisburg at the address posted on the PREA bulletins requesting help from an outside source but his letter was returned to him unopened. ECF No. 19 at ¶ 27.

Plaintiff filed the instant civil rights action on July 6, 2022 originally in the USDC for the Middle District of Pennsylvania (Scranton) and it was subsequently transferred to this District. Plaintiff filed a motion to proceed in forma pauperis which was granted on September 6, 2022 and the Complaint (ECF No. 19) was docketed that same date. In his Complaint, Plaintiff alleges violations of his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution, as well as violations of Article 1 § 13 of the Pennsylvania Constitution and Pennsylvania law.

In support of these claims, Plaintiff alleges that Defendants John and Hawkinberry failed to properly acknowledge, investigate, and report a PREA complaint and failed to protect him from retaliation in violation of DC-ADM Policies 008 and 804. ECF No. 19 at 10, ¶ 9; & at 16, ¶ E.2. Plaintiff further alleges that the grievance coordinator Defendant House failed to place a tracking number on the grievance/PREA complaint dated September 6, 2021 in violation of prison policy. ECF No. 19 at 9, ¶ IV.D.; at 13, ¶ 21; & at 16, ¶ E.2. As to Defendants Superintendent Mark Capazzo, Deputy Superintendent Facility Management Joseph Trempus, and Deputy Superintendent Centralized Services Eric Armel, Plaintiff alleges that they knew or should have been aware of the extensive sexual assault behavior/history of Defendant Ohrman prior to Plaintiff being housed on L Block and yet allowed Sargent Ohrman to continue to work on L Block and cause potential harm and/or danger to Plaintiff and similarly situated inmates housed on L Block. ECF No. 19 at 10, ¶¶ 10-12; at 14, ¶ 25. With regard to Defendant Trempus, Plaintiff alleges that he was aware of past complaints of sexual assault involving Defendant Ohrman through his prior experience as part of the facility sexual abuse incident review committee. Id. at ¶ 12. Plaintiff also alleges that Defendants failed to comply with DC-ADM 008 and 28 C.F.R. § 115.11(a).³ Id. at 15, ¶ VII.C., and he appears to be alleging a state law sexual assault claim against Defendant Ohrman. All Defendants are sued in their individual and official capacities.

3 Part 115 of Title 28, Code of Federal Regulations, sets forth the PREA National Standards and § 115.11(a) specifically requires state, local and federal agencies that operate prisons to maintain a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment. In compliance with § 115.11(a), the Pennsylvania Department of Corrections has issued a written policy, DC-ADM 008, adopting a zero tolerance policy for sexual abuse or sexual harassment and setting forth the DOC's policy and procedures for preventing, detecting and responding to such conduct. See DC-ADM 008 PREA Policy, available at https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx.

For relief, Plaintiff seeks an injunction ordering Defendants to formulate and implement new policies and practices for PREA complaints; compensatory and punitive damages; reasonable attorneys fees and costs, and such other relief that the Court deems just and equitable. Id. at 9, ¶ VI.

On February 10, 2023, Defendants filed the pending Motion to Dismiss the Complaint for Failure to State a Claim (ECF No. 41) and supporting brief (ECF No. 42). Plaintiff's response was due by March 15, 2023, and he requested and was granted an extension of time to April 21, 2023. ECF Nos. 44, 45. Plaintiff failed to file his response by the deadline and on May 2, 2023, the Court issued a Show Cause Order as to why this case should not be dismissed for failure to prosecute. ECF No. 46. In response, Plaintiff filed a motion for another extension of time to respond to the Motion to Dismiss which the Court granted extending the deadline to June 16, 2023, but cautioned Plaintiff that no further extensions would be granted. ECF Nos. 47 & 48. To date, Plaintiff has failed to file a response. As such, the Court will proceed to review Defendants' motion to dismiss without the benefit of a response from Plaintiff.

B. Legal Standard

The United States Court of Appeals for the Third Circuit aptly summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).

Also, when considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).

C. Discussion

Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. Section 1983 of the Civil Rights Act provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commw. of Pa., 36 F.3d 1250, 125556 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Both of these requirements have been met here as Defendants do not dispute that they were acting under color of state law. The Court now turns to Defendants' arguments as to each of Plaintiff's claims.

1. Sovereign Immunity

Defendants argue that sovereign immunity bars Plaintiff's state law claims in both their official and individual capacities, and Eleventh Amendment immunity bars his Section 1983 claims against them in their official capacities.

a. Sovereign Immunity from State Law Claims

Defendants argue that to the extent Plaintiff seeks damages under Section 1983 for alleged violations of Pennsylvania state law, this relief is not available because Section 1983 only provides for damages when a state actor violates the rights of a citizen arising under federal law. The Court agrees. See 42 U.S.C. § 1983.

Next Defendants argue that no Pennsylvania court has recognized a private cause of action for damages under the Pennsylvania Constitution, citing in support Pocono Mtn. Charter Sch. v. Pocono Mtn. Sch. Dist., 442 Fed.Appx. 681, 687 (3d Cir. 2011). In that case, the Court of Appeals held that the district court properly dismissed the plaintiff's claims for monetary relief under the Pennsylvania Constitution, finding that “[n]o Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania Constitution.” Id. (citing Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa.Commw. Ct. 2006) (“[N]either Pennsylvania statutory authority nor appellate case law has authorized the award of money damages for violation of the Pennsylvania Constitution.”)). Thus, to the extent Plaintiff seeks monetary relief from Defendants for an alleged violation of Article 1 § 13 of the Pennsylvania Constitution,⁴ Defendants submit that those claims should be dismissed. The Court agrees.

4 Article 1, Section 13 of the Pennsylvania Constitution provides in relevant part that “cruel punishments [shall not be] inflicted.” Pa. Const. Art. 1, § 13.

It is clear that Pennsylvania has not created a private cause of action for money damages for violations of the Pennsylvania Constitution. Moreover, the counterpart to Article 1, § 13 of the Pennsylvania Constitution in the U.S. Constitution is the Eighth Amendment. Plaintiff has asserted claims against the Defendants for alleged violations of the Eighth Amendment. Thus, as in Jones, Plaintiff has an alternative remedy under § 1983. As such, the Court recommends that Defendants' motion to dismiss Plaintiff's claims for injunctive relief⁵ and for compensatory and punitive damages for the alleged violation of Article 1, § 13 of the Pennsylvania Constitution against all Defendants be granted and those claims be dismissed with prejudice.

5 Although equitable remedies are available under the Pennsylvania Constitution, Pocono Mtn. Charter Sch., 442 Fed.Appx. at 688 (citing Moeller v. Bradford Cnty., 444 F.Supp.2d 316, 320-21 (M.D. Pa. 2006) (“[I]t is well settled that individual plaintiffs may bring suit for injunctive relief under the Pennsylvania Constitution”); Jones, 890 A.2d at 1216 (“[O]ther remedies, such as declaratory or injunctive relief ... are ... remedies under the Pennsylvania Constitution.”), the injunctive relief that Plaintiff seeks in this case cannot be obtained from any of the named Defendants, as none of them has policymaking authority. See DC-ADM 008 PREA Policy Stmt., Part I. Authority, available at https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx. Thus, to the extent Plaintiff seeks injunctive relief from Defendants under the Pennsylvania Constitution, said relief is unavailable and therefore the Court recommends that Plaintiff's claim for injunctive relief from Defendants under the Pennsylvania Constitution likewise be dismissed with prejudice.

Finally, Defendants argue that as agents and employees of the Commonwealth of Pennsylvania, acting in the course of their duties, they are entitled to sovereign immunity as to Plaintiff's state law claims, citing in support 1 Pa. Cons. Stat. § 2310 and 42 Pa. Cons. Stat. §§ 8521-8528. Construing the Complaint liberally, it appears that Plaintiff is asserting a sexual assault claim against Defendant Ohrman under Pennsylvania law.

Pennsylvania law provides that “the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.” 1 Pa. Cons. Stat. Ann. § 2310. It is undisputed that the Pennsylvania Department of Corrections (“DOC”) is an agency of the Commonwealth of Pennsylvania. See Wesley v. Hollis, No. 03-3130, 2007 WL 1655483, at *14 (E.D.Pa. June 6, 2007)(citing Waters v. Tennis, No. 04-2497, 2006 WL 2136248, at *2 (M.D.Pa. Jul. 26, 2006)). As such, the DOC and its employees are governed by 42 Pa. Cons. Stat. Ann. § 8522, which protects them from damages arising out of negligent acts unless the cause of action falls within one of nine statutory exceptions,⁶ none of which is implicated here. Id. (citing Savage v. Judge, No. 05-2551, 2007 WL 29283, at *5 (E.D.Pa. Jan. 2, 2006)(citing Stackhouse v. Pa. State Police, 892 A.2d 54, 5859 & n. 5 (Pa. Commw. Ct. 2006)). Significantly, Section 8522 does not provide an exception for willful misconduct. Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 52 (3d Cir. 1985); Holt v. Nw. Pa. Training P'ship Constortium, Inc., 694 A.2d 1134, 1140 (Pa. Commw. Ct. 1997)); see also Bailey v. Wetzel, Case No. 2:21-cv-179, 2021 WL 5280926, at *7 (W.D.Pa. Nov. 12, 2021) (“The Pennsylvania legislature has not waived this immunity for intentional torts, ....”) (collecting cases).

6 The Pennsylvania General Assembly has provided nine specific exceptions to the general grant of immunity that relate to: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. See 42 Pa. Cons. Stat. Ann. § 8522(b)(1)-(9).

However, sovereign immunity does not bar certain actions in equity against state officials. Stackhouse, 892 A.2d at 59. As the Commonwealth Court noted in Stackhouse, “[s]uits which seek to compel affirmative action on the part of state officials or to obtain money damages or to recover property from the Commonwealth are within the rule of immunity; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity.” Id. (quoting Fawber v. Cohen, 532 A.2d 429, 433-34 (Pa. 1987)(quoting Phila. Life Ins. Co. v. Commw., 190 A.2d 111, 114 (Pa. 1963)) (internal quotation marks omitted). Here Plaintiff is seeking money damages as well as injunctive relief for alleged violations of Pennsylvania law. The injunctive relief he is seeking is an order directing Defendants to formulate and implement new policies and practices for PREA complaints. See ECF No. 19 at 9, ¶ VI. As such, Plaintiff is in essence seeking to compel, as opposed to restrain, affirmative action on the part of the DOC Defendants.⁷ Therefore, sovereign immunity also bars the injunctive relief he seeks.

7 Also, as noted in Note 5, supra, the injunctive relief Plaintiff seeks is not available from the named Defendants as none of them has policymaking authority.

Because Plaintiff's state law sexual assault claim against the Defendant Ohrman does not fall within one of the exceptions to sovereign immunity enumerated in Section 8522(b), that claim will be barred unless the Defendant Ohrman was acting outside the scope of his employment when the alleged sexual assault occurred. “[T]he protection of sovereign immunity only limits liability when a Commonwealth employee acts within the scope of his duties.” Soler v. Vanim, Civ. A. No. 06-4975, 2007 WL 9810902, *7 (E.D.Pa. Nov. 19, 2007)(citing Williams v. Stickman, 917 A.2d 915, 917 (Pa. Commw. Ct. 2007)); Stone v. Felsman, No. 3:10-0442, 2011 WL 5320738, at *11 (M.D.Pa. Nov.1, 2011) (collecting cases); see also Stackhouse, 892 A.2d at 58-59 (citing 1 Pa. Cons. Stat. § 2310 (other citation and footnotes omitted). Thus, Plaintiff's Pennsylvania state law claim for damages arising from the alleged sexual assault will be barred by sovereign immunity unless he has alleged facts to show that Defendant Ohrman was acting outside the scope of his employment when he allegedly sexually assaulted Plaintiff. As explained by our sister court in the Eastern District:

Under Pennsylvania law, an action falls within the scope of employment if it: (1) is the kind that the employee is employed to perform; (2) occurs substantially within the job's authorized time and space limits; (3) is motivated at least in part by a desire to serve the employer; and (4) if force was used by the employee against another, the use of force is not unexpectable by the employer. Savage, 2007 WL 29283, at *5 (citing Restatement (Second) of Agency § 228; Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir.2000) (noting that the Pennsylvania Supreme Court has adopted the Restatement's definition of “scope of employment”); Robus v. Pennsylvania Dep't of Corrections, No. 04-2175, 2006 WL 2060615, at *8 (E.D.Pa. Jul.20, 2006)). As noted above, there is no bright line rule drawn at willful misconduct or intentional torts; “[e]ven willful misconduct does not vitiate a Commonwealth employee's immunity if the employee is acting within the scope of his employment ....” Cooper v. Beard,

No. 06-0171, 2006 WL 3208783, at *16 (E.D.Pa. Nov.2, 2006) (citing Holt, 694 A.2d at 1140).

Wesley, 2007 WL 1655483, at *14.

Here Plaintiff does allege facts to plausibly show that he was sexually assaulted by Defendant Ohrman as to the First Incident. Therefore, the Court finds, as a matter of law, that allegations of sexual assault and battery, if proven, would not be the type of conduct a corrections officer is expected to perform and would not be actuated at all to serve the DOC. See Kintzel v. Kleeman, 965 F.Supp.2d 601, 607 (M.D.Pa. 2013) (holding that a state trooper was not shielded by the doctrine of sovereign immunity from plaintiff's claims of sexual assault and battery as the conduct alleged was not the sort of conduct that he was employed to perform nor was it committed in any way to serve the Commonwealth). As such, Defendant Ohrman is not entitled to sovereign immunity from Plaintiff's claim for damages under Pennsylvania law arising out of the alleged sexual assault at this stage of the proceedings.⁸

8 Defendant Ohrman may raise the defense of sovereign immunity later in these proceedings once the record is more fully developed.

Plaintiff does not appear to be asserting any state law claims against Defendants Hawkinberry, House, John, Capazzo, Trempus, and Armel. However, to the extent that he is attempting to do so, Plaintiff has not alleged any facts to suggest or plausibly show that these Defendants were acting outside the scope of their employment when they allegedly violated Pennsylvania law. Therefore, Defendants Hawkinberry, House, John, Capazzo, Trempus, and Armel are entitled to sovereign immunity in both their individual and official capacities as to any claims asserted against them in this lawsuit for the alleged violation of Pennsylvania law. As such, the Court recommends dismissal with prejudice of any state law claims against these Defendants.

b. Eleventh Amendment Immunity

Defendants argue that Plaintiff's claim for monetary damages under Section 1983 against the Defendants in their official capacities is barred by Eleventh Amendment immunity.

The Eleventh Amendment bars civil rights suits against a state and their agencies in federal court by private parties where the state has not consented to such action. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (Pennsylvania) (citing Alabama v. Pugh, 438 U.S. 781 (1978)); see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (agencies that are arms of the state). Pennsylvania has not waived immunity from suit in federal court, and Congress has not abrogated this immunity in enacting 42 U.S.C. § 1983. Conklin v. Anthou, 495 Fed.Appx. 257, 263 (3d Cir. 2012) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989); Wheeling & Lake Erie Ry. Co. v. Pub. Util. Comm'n of Pa., 141 F.3d 88, 91 (3d Cir. 1998); 42 Pa. Cons. Stat. § 8521(b)).

Eleventh Amendment immunity also applies to actions in federal court against state officials acting in their official capacities for money damages or back pay, as such retroactive relief would be paid out of the state treasury. Laskaris, 661 F.2d at 26 (citing Edelman v. Jordan, 415 U.S. 651 (1974)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (a civil action brought against a state official in his official capacity is deemed an action against the state); Hafer v. Melo, 502 U.S. 21, 26 (1991) (when a state official is sued in an official capacity, the real party in interest is the government entity that employs them). Cf. Will, 491 U.S. at 71 (a State and its officials acting in their official capacities are not “persons” subject to suit within the meaning of Section 1983). Plaintiff's § 1983 official capacity claim against the Defendants, who are all employees of the Pennsylvania DOC, essentially is a claim against the Commonwealth of Pennsylvania. See Lavia v. Pa. Dep't of Corrs., 224 F.3d 190, 195 (3d Cir. 2000) (Pennsylvania DOC shares in the Commonwealth's Eleventh Amendment immunity); Randolph v. Wetzel, 987 F.Supp.2d 605, 613 (E.D. Pa. 2013) (finding that Eleventh Amendment immunity barred § 1983 official capacity claim against DOC employees). Thus, to the extent Plaintiff seeks monetary relief against the Defendants in their official capacities, that claim is barred by Eleventh Amendment immunity.

However, the Supreme Court has noted an exception to this rule where “suits against individual state officers [are] for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (“Hess”)(citing MCI Telecomm Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 503 (3d Cir. 2001)). This exception is commonly referred to as the doctrine of Ex Parte Young, 209 U.S. 123, 155-56 (1908). See Hess, 297 F.3d at 323. The Supreme Court has narrowly applied this exception, Pennhurst, 465 U.S. at 102, and indeed, has declined to apply the exception to relief styled as prospective relief but which, in actuality, seeks compensation for a past injury by a state official, Edelman, 415 U.S. at 666-68. “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'” Verizon Maryland, Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (438 (1997)).

Here it appears that in addition to monetary relief, Plaintiff seeks relief that is prospective in nature-an injunction ordering the Defendants to formulate and implement new policies and practices for PREA complaints. Thus, the injunctive relief sought by Plaintiff involves changes to the PREA complaint procedures in the future and would not result in any monetary relief, ancillary or otherwise, from the Pennsylvania Treasury. See Edelman, 415 U.S. at 667-68 (observing that the difference between prospective and retroactive relief in many instances is not that between day and night, and holding the Eleventh Amendment does not bar an order compelling state compliance in the future, but prohibits an injunction ordering payment of previously owed sums; however, “an ancillary effect on the state treasury is permissible and often an inevitable consequence of the principle announced in Ex parte Young[.]”).

However, that does not end the inquiry. The prospective injunctive relief sought by Plaintiff would not end an ongoing violation of federal law, as Plaintiff has not identified any federal law that has been and will continue to be violated by the current PREA complaint policies and practices.⁹ Moreover, as noted above, the injunctive relief sought cannot be provided by the named Defendants. Therefore, the Court finds that Ex Parte Young does not apply here. As such, Defendants are entitled to Eleventh Amendment immunity on all federal claims against them in their official capacities. Accordingly, the Court recommends that Plaintiff's claims for alleged violations of the U.S. Constitution and Section 1983 against all Defendants in their official capacities be dismissed.

9 Plaintiff merely alleges that some of the Defendants failed to follow the DOC's grievance and PREA complaint procedures. As aptly noted by our sister court in the Eastern District:

“[A]lthough prisoners have a constitutional right to seek redress of grievances as part of their right of access to courts, this right is not compromised by [prison officials' failure] to address these grievances.” Booth v. King, 346 F.Supp.2d 751, 761 (E.D. Pa. 2004). “Access to prison grievance procedures is not a constitutionally-mandated right, and allegations of improprieties in the handling of grievances do not state a cognizable claim under [section] 1983.” Glenn v. DelBalso, 599 Fed.Appx. 457, 459 (3d Cir. 2015); Booth, 346 F.Supp.2d at 761 (“Prisoners are not constitutionally entitled to a grievance procedure and the state creation of such a procedure does not create a liberty interest requiring procedural protections under the Fourteenth Amendment.”). In Burnside v. Moser, our Court of Appeals affirmed “[i]nmates do not have a constitutionally protected right to the prison grievance process.” Burnside v. Moser, 138 Fed.Appx. 414, 416 (3d Cir. 2005). Our Court of Appeals in Burnside did not commend failure to process grievances, but noted such behavior by prison officials “does not rise to the level of [violating] a constitutional right.” Id.; see also Dickens v. Taylor, 464 F.Supp.2d 341, 353 (D. Del. 2006) (“Plaintiff cannot maintain constitutional claims based upon inadequate grievances system,” grievance denial, or failure to address his grievances).

Hailey v. Beard, Civ. A. No. 19-2171, 2019 WL 5592578, at *13 (E.D.Pa. Oct. 29, 2019).

2. Lack of Personal Involvement by Defendants Capazzo, Trempus & Armel

Defendants Capazzo, Trempus, and Armel submit that the allegations against them only encompass supervisory authority over Defendant Ohrman and lack any suggestion of personal involvement on their part in the alleged constitutional violations. As such, Defendants Capazzo, Trempus, and Armel submit that Plaintiff has failed to state a claim against them.

For liability to be imposed under 42 U.S.C. § 1983, “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)(citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)).

A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)).

The Third Circuit Court of Appeals has identified two general instances in which the conduct of a supervisor-defendant or the policies/procedures of a supervisordefendant may constitute personal involvement, thus warranting a finding of individual supervisory liability for a constitutional tort. First, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).

Defendants Capazzo, Trempus, and Armel contend that Plaintiff merely alleges that because they are Ohrman's supervisors, they should have known he was subject to inmate grievances and PREA complaints, however “generalized allegations that a supervisory defendant is in charge or is responsible for an office or facility are insufficient to allege personal involvement in an underlying constitutional violation.” ECF No. 42 at 7 (quoting Johnakin v. Drosdak, No. CV 22-2575, 2022 WL 2651969, at *7 (E.D.Pa. Jul. 8, 2022)(citing A.M. ex rel. J.M.K., 372 F.3d at 586 (internal quotation marks omitted)). The Court agrees that the Complaint lacks any allegations of personal involvement in the alleged constitutional violations by Defendant Capazzo. Plaintiff merely alleges that Defendant Capazzo knew or should have been aware of Defendant Ohrman's history of sexual assault behavior without any allegations as to how he would have known of Ohrman's alleged history other than presumably by virtue of his supervisory position. As such, Plaintiff's allegations against Defendant Capazzo is predicated solely upon respondeat superior liability, which the Court of Appeals has clearly rejected as a basis for imposing supervisory liability under Section 1983. Rode, 845 F.2d at 1207. Accordingly, the Court recommends that the motion to dismiss be granted as to the § 1983 claims against Defendant Capazzo.

Similarly with regard to Defendant Armel, Plaintiff alleges that he should have been aware or knew of Defendant Ohrman's history of sexual assault behavior prior to Plaintiff's placement on L-block. ECF No. 19 at 10, ¶ 11. In support, Plaintiff further alleges that Defendant Ohrman was removed from his position on L-Block for similar activity and then was allowed to work back on L Block prior to Plaintiff being housed there. Id. In addition, Plaintiff alleges that Defendant Armel is responsible for the overall treatment and care of all inmates in the facility. Giving Plaintiff the benefit of all reasonable inferences, these allegations do not plausibly show that Defendant Armel likely had knowledge of and acquiesced in Defendant Ohrman's alleged unconstitutional conduct. Plaintiff does not allege that Defendant Armel knew that Defendant Ohrman was removed from his position on L Block for similar conduct but asks the Court to infer that knowledge by virtue of the fact that Defendant Armel was responsible for the care and treatment of all the inmates. This is a leap the Court is not willing to take. Moreover, Plaintiff does not allege that Defendant Armel has supervisory responsible for the assignment and discipline of the correctional officers including Defendant Ohrman. As such, the Court finds that Plaintiff has failed to allege the requisite personal involvement by Defendant Armel in the alleged constitutional violations and therefore recommends that the motion to dismiss the § 1983 claims against him be granted.

With regard to Defendant Trempus, Plaintiff alleges that prior to his placement on L Block, Defendant Trempus was aware of past complaints of sexual assault involving Defendant Ohrman through his experience as part of the facility sexual abuse incident review committee. ECF No. 19 at 10, ¶ 12. Plaintiff further alleges that as a result of this knowledge, Defendant Trempus was aware that allowing Defendant Ohrman to continue to work on L Block could cause potential harm and/or danger to him and other similarly situated inmates housed on the L Block. Id. In addition, Plaintiff alleges that as deputy superintendent of facility management/services, Defendant Trempus is responsible for maintaining all security at SCI Fayette and given Defendant Ohrman's history of sexual abuse, he should not have been able to work on L Block. Id. These allegations plausibly suggest that Defendant Trempus “had knowledge of and acquiesced” in Defendant Ohrman's unconstitutional conduct. As such, the Court finds that Plaintiff has adequately pled personal involvement by Defendant Trempus, and therefore, recommends the motion to dismiss the § 1983 claims against him based on lack of personal involvement be denied.¹⁰

10 However, it is unclear exactly what section 1983 constitutional violations Plaintiff is alleging against Defendant Trempus. Thus, the Court is recommending that Plaintiff identify which claims he is pursuing against Defendant Trempus and set forth facts to support each element of those claims in an amended complaint. Failure to do so will result in the Court recommending that the Complaint against Defendant Trempus be dismissed with prejudice.

3. Eighth Amendment Claims

The Court of Appeals succinctly summarized the contours of an Eighth Amendment claim:

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, 106 S.Ct. 1078, 89 L.Ed.2d 251 (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, 112 S.Ct. 995, 117 L.Ed.2d 156 (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, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Second, the conduct must have been objectively “harmful enough,” or “sufficiently serious” to violate the Constitution. Id. at 298, 303, 111 S.Ct. 2321.

Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018).

Here, as in Ricks, Plaintiff has asserted two types of Eight Amendment claims: One for sexual assault against Defendant Ohrman, and one for failure to protect from retaliation against Defendants Hawkinbarry and John.¹¹ The Court will examine each claim in turn.

11 To the extent Plaintiff is asserting Eighth Amendment claims against Defendants Capazzo and Armel, those claims must fail as the Court has already found that Plaintiff has failed to sufficiently plead personal involvement by them in any alleged constitutional violations. It is unclear whether Plaintiff is asserting a failure to protect claim against Defendant Trempus and Defendants' brief does not address such a claim. As such, the Court refrains from addressing this claim but recommends allowing Plaintiff leave to file an amended complaint to further develop a failure to protect claim against Defendant Trempus should he desire to do so.

a. Sexual Abuse Claim

In Ricks, the Court of Appeals recognized for the first time that sexual abuse of inmates by prison officials can violate the Eighth Amendment. Id. Relying on the Second Circuit's holdings in two landmark prison sexual abuse cases, Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997) and Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015), the Third Circuit Court of Appeals determined that “a properly stated Eighth Amendment sexual abuse claim need not necessarily depend on the number of incidents ... ‘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.'” Ricks, 891 F.3d at 475 (quoting Crawford, 796 F.3d at 257) (emphasis within). To determine whether the alleged sexual abuse incident was “sufficiently severe or serious,” the Ricks court concluded that the test involves a subjective and objective component. Id. “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.” Id.

With regard to the subjective prong the court must “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.'” Id. (citations omitted). Because this prong inquires as to the defendant's 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.” Id. (citations omitted; alteration in original). Notably, “[t]he nature of the violative conduct itself will often be enough to demonstrate the prison official's culpable state of mind.” Id. (citing 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 violation is self-evident because there can be no penological justification for such contact.”)).

As to the objective prong, the Ricks Court held:

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, 112 S.Ct. 995. Indeed, “[t]he Constitution ‘does not mandate comfortable prisons.'” Farmer, 511 U.S. at 832, 114 S.Ct. 1970 (quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (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, 112 S.Ct. 995 (quoting Whitley, 475 U.S. at 327, 106 S.Ct. 1078). The objective element “is therefore contextual and responsive to ‘contemporary standards of decency.'” Id. at 8, 112 S.Ct. 995 (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). And “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes, 452 U.S. at 347, 101 S.Ct. 2392.

891 F.3d at 475-76.

In addition, the Ricks Court offered the following guidance:

Absent a legitimate penological purpose, the type of touching involved in, for instance, a body-cavity search, 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.

Id. at 476. The Court of Appeals observed that while it is better to consider whether conduct is objectively cruel and unusual with sensitivity to “evolving standards of decency,” it opined that it “was 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.” Id. at 477 (citations omitted). Thus, the Court concluded that this “inquiry is necessarily contextual” and “fact-specific,” and thus it “decline[d] to craft a mechanical factors test for when sexual contact is objectively, sufficiently serious.” Id. at 478. Nonetheless, the Ricks Court provided the following guidance:

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.

Id.

With regard to the First Incident, Defendants argue that the alleged sexual assault is similar to the one in Ricks. In that case, the corrections officer Keil ordered Ricks to undergo a pat-down search in a public hallway. 891 F.3d at 472. While searching Ricks from behind, Keil allegedly rubbed his erect penis (under clothing) up against Ricks' clothed buttocks. In response, “Ricks stepped away from Keil and told him he was “on [his] (ASS).” Id. ¹² Applying the subjective and objective components to the facts alleged in the complaint, the Ricks Court concluded that it was unclear whether the touching was incidental to a legitimate pat-down search. Id. at 479. The Ricks Court further noted that the incident appeared to be isolated, momentary, and was avoided by Ricks' ability to step away from the offending touch. Because the complaint lacked more specific allegations as to the severity of Keil's conduct or the surrounding context, including the need for the search, the Court of Appeals found that Ricks had failed to state a plausible claim for sexual abuse under the Eighth Amendment. Nonetheless, the Court of Appeals indicated that Ricks should be allowed the opportunity to amend his complaint to alleged facts specifying the incident's seriousness or severity, as well as its purpose and any relevant contextual facts. Id.

12 In their summary of the facts in Ricks, Defendants state that Ricks was subsequently beaten by the guard who allegedly sexually assaulted him (Keil) for suggesting that he had sexually assaulted Plaintiff. ECF No. 42 at 9. However, Ricks was actually beaten by Lt. Shover when he told Shover that Keil had sexually assaulted him. Ricks, 891 F.3d at 472.

Similarly here, Defendants submit that the First Incident fails to meet the sufficiently serious prong of an Eighth Amendment sexual abuse claim. The Court disagrees. First of all, there was no pat-down search of Plaintiff being conducted by Defendant Ohrman. Rather, Plaintiff was standing in front of a table preparing to conduct an inventory of his property with his hands cuffed to a restraint belt at his waist when Defendant Ohrman stepped behind Plaintiff and grabbed the back of his restraint belt and began rubbing his erect penis on Plaintiff's back and in between his buttocks in a humping manner. Plaintiff told Ohrman to get off him and attempted to spin around but his movement was limited due to his position between the table and Ohrman and the restraint belt. Ohrman told Plaintiff his was trying to see what Plaintiff was touching, however, Plaintiff contends that he was unable to touch anything due to being handcuffed at the waist. Thus, the Court finds that Ohrman's explanation was merely pretext for the improper touching as it does not provide a legitimate penological justification, i.e., that there was a need for Ohrman to make physical contact with Plaintiff. Rather, giving Plaintiff the benefit of all reasonable inferences, the facts suggest that Ohrman intentionally rubbed his erect penis against Plaintiff's buttocks to gratify his own sexual desire. See Crawford, 796 F.3d at 252. Moreover, the other guards present laughed when this happened, indicating that Ohrman's intent was to humiliate Plaintiff. Accordingly, the Court finds that Plaintiff has pled sufficient facts to satisfy the subjective component of an Eighth Amendment sexual abuse claim.

As to the objective component, that presents a closer question. Defendants submit that Plaintiff has failed to alleged facts to show that the offending contact was objectively, sufficiently serious. In support they submit that the fact that Plaintiff moved away from Ohrman and questioned what he was doing undermines the sufficiently serious prong. However, as the Court noted above, Plaintiff was restricted in his movement, unlike the inmate in Ricks who was able to step away. Defendants also proffer that Ohrman gave a legitimate penological reason but as the Court noted above, that reason was only given after the offensive contact and was pretextual in nature. Finally, Defendants submit that Plaintiff fails to allege any injury or penetration but neither are required to demonstrate objectively serious sexual contact.

On the other hand, the Court notes that the alleged sexual contact violates DOC's PREA policy. The DOC has a zero tolerance policy for sexual abuse and sexual harassment. DC-ADM 008 defines sexual abuse of an inmate by a staff member to include “[a]ny other intentional contact, either through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the staff member . . . has the intent to abuse, arouse, or gratify sexual desire[.]” See DC-ADM 008, PREA Procedures Manual Glossary of Terms, at p. 8, ¶ 3(e). Defendant Ohrman's alleged conduct appears to fit within this definition of sexual abuse. In addition, other contextual considerations include the fact that Plaintiff was in restraints when the sexual contact was made, the incident occurred in the property room not in a public area of the prison, and without any apparent legitimate penological justification. Although the sexual contact appears to have been of limited duration, the totality of the factual allegations suggest that Plaintiff has pled objectively serious sexual contact.

Accordingly, as Plaintiff has pled sufficient facts to satisfy both the subjective and objective components of an Eighth Amendment sexual abuse claim against Defendant Ohrman with regard to the First Incident, the Court recommends that Defendants' motion to dismiss this claim be denied.

As to the Second Incident, the Court agrees with Defendants that the allegations pled do not state a plausible sexual abuse claim under the Eighth Amendment. Defendants argue that during the Second Incident, there was no physical contact between Plaintiff and Defendant Ohrman and if anything, Defendant Ohrman made lewd and inappropriate comments. Without direct physical contact, Defendants submit that the sexual assault claim cannot rise to the level of an Eighth Amendment violation without accompanying egregious conduct. Moreover, Defendants submit that even if Plaintiff was embarrassed or humiliated by the strip search, it cannot be grounds for an Eight Amendment sexual assault claim. ECF No. 42 at 11 (citing Millhouse v. Arbasak, 373 Fed.Appx. 135, 137-38 (3d Cir. 2010) (“prison officials may conduct visual body cavity searches in a reasonable manner[,]” (citing Bell v. Wolfish, 441 U.S. 520, 55960 (1979); and “the searches, even if embarrassing and humiliating, do not violate the constitution.” (citations and footnote omitted)).

Here the Second incident involved a legitimate penologically justified strip search prior to a shower. By Plaintiff's account, he was subjected to a visual body cavity search by Defendant Ohrman. During this search, Defendant Ohrman allegedly made several lewd and inappropriate comments-asking Plaintiff if he was into anal sex “because it look[s] like you take it up the ass.” ECF No. 19 at ¶ 18. Plaintiff responded by asking Ohrman if he was a “faggot” but Ohrman did not reply to that comment. Id. at ¶ 19. Plaintiff further alleges that Defendant Ohrman returned later and taunted him about what had transpired earlier but does not indicate what this taunting consisted of. Because there was no physical contact between Plaintiff and Ohrman during the Second Incident and there was a legitimate penological reason for the search, Plaintiff cannot successfully plead an Eighth Amendment sexual assault claim. Defendant Ohrman's alleged misconduct, which consisted of two inappropriate comments, is not objectively sufficiently intolerable and cruel to plausibly state an Eighth Amendment violation under Ricks. Accordingly, the Court recommends that Defendants' motion to dismiss Plaintiff's Eighth Amendment sexual abuse claim against Defendant Ohrman with regard to the Second Incident be granted with prejudice.

b. Failure to Protect Claim

Plaintiff alleges that Defendants Hawkinberry and John failed to protect him from retaliation for filing grievances and PREA complaints, failed to investigate and acknowledge Plaintiff's PREA complaints, and failed to establish a retaliation monitoring form to document retaliation incidents. ECF No. 19 at 13, ¶ 24; Ex. I to Am. Compl., ECF No. 19-6 at 3-7.

The Eighth Amendment's prohibition against the infliction of cruel and unusual punishment has been interpreted to impose upon prison officials a duty to take reasonable measures “‘to protect prisoners from violence at the hands of other prisoners.'” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). Although, “[i]t is not ... every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for a victim's safety,” “[b]eing violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.'” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 345 (1981)). Importantly, Farmer has been interpreted to apply to assaults on inmates committed by guards. See, e.g., Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347 (“Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.'”)); Miskovitch v. Lt. Hostoffer, No. 06-1410, 2010 WL 2404434, at *4 (May 19, 2010) (citing Farmer, 511 U.S. at 833 (“[T]he Eighth Amendment requires prison officials to take reasonable measures to protect prisoners from violence at the hands of other prisoners, as well as at the hands of guards or other state actors.”)).

To establish a failure to protect claim, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists”; (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Farmer, 511 U.S. at 834-37; see also Hamilton, 117 F.3d at 746. The first prong “is satisfied when the alleged ‘punishment' is ‘objectively sufficiently serious.'” Hamilton, 117 F.3d at 746.

In determining whether a defendant was deliberately indifferent, the court must “focus [on] what a defendant's mental attitude actually was (or is), rather than what it should have been (or should be).” Hamilton, 117 F.3d at 747. It is not an objective test for deliberate indifference; rather, the court must look to what the prison official actually knew, rather than what a reasonable official in his position should have known. “A prison official's knowledge of a substantial risk is a question of fact and can, of course, be proved by circumstantial evidence.” Id. In other words, it may be concluded that a prison official knew of a substantial risk from the very fact that the risk was obvious. The Farmer Court explained in hypothetical terms the type of circumstantial evidence sufficient for a finding of actual knowledge on the part of a prison official:

[I]f an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was ‘longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,' and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.

Farmer, 511 U.S. at 842-43 (emphasis added).

Here Defendants argue that neither the Complaint nor the attachments elaborate on Plaintiff's failure to protect from retaliation claim but contain only conclusory allegations without any factual support. ECF No. 42 at 11. As such, Defendants submit that Plaintiff has failed to allege any basis for establishing the first prong of the Farmer test-that he faced a substantial risk of serious harm to his health or safety. The Court agrees that Plaintiff has failed to establish the first prong of the Farmer test.

Plaintiff's Complaint and attached Exhibit D indicate that Plaintiff first reported allegations of retaliation by unnamed prison staff for filing grievances and PREA complaints and requesting better protection from staff retaliation to Defendant Hawkinberry on October 11, 2021 in his Inmate Request to Staff Member. ECF No. 19-4; see also ECF No. 19 at ¶ 23. The alleged retaliation consisted of searching his cell and destroying it, “being burnt for yard, trays, showers,” which he admits is “minor.” ECF No. 19-4. In response, Defendant Hawkinberry stated that she would have Lt. John look into his concerns and noted that they take his allegations very seriously. Id. By Plaintiff's own admission, the harm that he suffered was minor. Thus, Plaintiff has failed to allege any facts to plausibly support the first prong of the Farmer test.¹³

13 The Court notes that in grievances filed after Plaintiff notified Defendant Hawkinberry on October 11, 2021 of the alleged retaliation, Plaintiff also complains of additional acts of retaliation by corrections officers not named as defendants in this lawsuit. See ECF No. 19-6. However, none of the retaliatory acts alleged in those grievances rise to the level of a sufficiently serious harm. See notes 16-20, infra. Moreover, Plaintiff does not refer to these subsequent retaliatory acts in his Complaint to support his failure to protect claim.

Accordingly, the Court recommends that Defendants' motion to dismiss Plaintiff's Eighth Amendment failure to protect claim against Defendants Hawkinberry and John be granted and that claim dismissed with prejudice.

4. Fourteenth Amendment Claim

Next, Defendants have moved to dismiss Plaintiff's Fourteenth Amendment claim for failure to state a claim. The Fourteenth Amendment provides, in relevant part, that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1.

In his Complaint, Plaintiff makes a blanket assertion that Defendants violated his rights under the Fourteenth Amendment. ECF No. 19 at 4, ¶ II.B. The Complaint is devoid of any factual allegations to show how Defendants allegedly violated Plaintiff's rights under the Fourteenth Amendment. Indeed, Plaintiff makes no attempt to clarify whether he is asserting a procedural or substantive due process claim, or an equal protection claim. The Court will not attempt to guess at the basis for Plaintiff's claim. Plaintiff has the burden of setting forth sufficient facts to show a plausible Fourteenth Amendment claim, which he has failed to do. Accordingly, the Court recommends that Defendants' motion to dismiss Plaintiff's Fourteenth Amendment claim be granted and that claim dismissed with prejudice.¹⁴

14 The Court cannot envision any set of facts that Plaintiff could plead within the context of this case that would plausibly state a Fourteenth Amendment violation against the named Defendants. As such, it would be futile to allow Plaintiff leave to amend his Complaint on this claim. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).

5. Failure to Investigate Claim

In his Complaint, Plaintiff alleges that Defendants Hawkinberry and John failed to acknowledge and investigate his PREA complaints. ECF No. 19 at ¶¶ 9 & 24. Defendants move to dismiss this claim arguing that to the extent Plaintiff is challenging the quality of the investigation into his two PREA complaints, he has no freestanding right to such an investigation. ECF No. 42 at 13 (citing Graw v. Fantasky, 68 App'x 378, 383 (3d Cir. 2003) (finding that “'an allegation of a failure to investigate, without another recognizable constitutional right, is not sufficient to sustain a section 1983 claim.'” (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989))). See also Brown v. Lardin, Civ. A. No. 21-1407, 2022 WL 4356847, *3 (W.D.Pa. Sept. 20, 2022) (concluding that “to the extent Plaintiff challenges the quality of the investigation or lack thereof into his PREA complaint, he has no freestanding right to such an investigation.” (citing Graw, 68 F. App'xx at 383). Moreover, as noted by the district court in Brown:

“While the PREA was intended in part to increase the accountability of prison officials and to protect the Eighth Amendment rights of Federal, State, and local prisoners, nothing in the language of the statute establishes a private right of action.” Johnakin v. Drosdak, No. CV 22-2575, 2022 WL 2651969, at *5 (E.D. Pa. July 8, 2022) (quoting Walsh v. N.J. Dep't of Corr., Civ. A. No. 17-2442, 2017 WL 3835666, at *4 (D.N.J. Aug. 31, 2017); and citing Krieg v. Steele, 599 Fed.Appx. 231, 232 (5th Cir. 2015) (“Insofar as Krieg argues that his rights under the Prison Rape Elimination Act of 2003 ... were violated, other courts addressing this issue have found that the PREA does not establish a private cause of action for allegations of prison rape.” (citations omitted)); Frederick v. Snyder Cnty. Prison, No. 3:18-707, 2019 WL 1348436, at *4 (M.D. Pa. Mar. 22, 2019) (“To the extent that Plaintiff attempts to raise a claim pursuant to the PREA, this

claim must fail. The PREA does not provide a private right of action and Plaintiff is thus prohibited from asserting a claim pursuant to PREA.” (citations omitted))).

Thus, Plaintiff cannot “bring a private action to enforce obligations set forth in the PREA, whether through the statute itself or through [an] attempt to enforce the [institution's] PREA policy via section 1983.” Johnakin, 2022 WL 2651969, at *5 (quoting Bowens v. Emps. of the Dep't of Corr., 14-2689, 2016 WL 3269580, at *3 (E.D. Pa. June 15, 2016), aff'd sub nom., Bowens v. Wetzel, 674 Fed.Appx. 133 (3d Cir. 2017)).

Brown, 2022 WL 4356847, at *2-*3.

Therefore, as there is no private cause of action under Section 1983 for an alleged violation of the PREA, and Plaintiff has not alleged another recognized constitutional right that was implicated in challenging the quality of the PREA investigation, the Court finds that Plaintiff has failed to state a cognizable, let alone plausible, claim for failing to investigate his PREA complaints. Accordingly, the Court recommends that Defendants' motion to dismiss Plaintiff's failure to investigate claim against Defendants Hawkinberry and John be granted and this claim dismissed with prejudice.

6. First Amendment Retaliation Claim

Next, Defendants move to dismiss Plaintiff's First Amendment retaliation claim arguing that he has failed to sufficiently plead a First Amendment violation. In his Amended Complaint and Exhibit D attached thereto, Plaintiff asserts that unnamed prison staff retaliated against him for filing grievances and PREA complaints and for requesting better protection from staff retaliation. ECF No. 19 at ¶ 23; ECF No. 19-4. The alleged retaliatory acts consisted of searching his cell and destroying it, and “being burnt for yard, trays, showers,” which he admits is “minor.” ECF No. 19-4.

It is well settled that retaliation for the exercise of a constitutionally protected activity is itself a violation of rights secured by the Constitution, which is actionable under section 1983. Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990). However, merely alleging the fact of retaliation is insufficient; in order to prevail on a retaliation claim, a plaintiff must show three things: (1) that the conduct in which he engaged was constitutionally protected; (2) that he suffered “adverse action” at the hands of prison officials; and (3) that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Rauser, 241 F.3d at 333 (adopting Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

With respect to the first factor, it is well settled that government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for the exercise of a constitutional right. Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir.2000). Accordingly, a prisoner litigating a retaliation claim need not prove that he had an independent liberty interest in the privileges he was denied. Rauser, 241 F.3d at 333. Rather, the first requirement a Plaintiff must show is that the conduct which led to the alleged retaliation was constitutionally protected. Id.

The second element requires a prisoner to show that he suffered some “adverse action” at the hands of the prison officials. A plaintiff can satisfy the second requirement by demonstrating that the “adverse” action “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights.” See Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000). Adverse actions that are sufficient to support a retaliation claim include filing false misconduct reports, Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), transferring a prisoner to another prison, Rauser, 241 F.3d at 333, and placing a prisoner in administrative custody, Allah, 229 F.3d at 225.

The crucial third element, causation, requires that there be a causal link between the exercise of the constitutional right and the adverse action taken against the prisoner. Rauser, 241 F.3d at 333-34. This requires a plaintiff to prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997). The mere fact that an adverse action occurs after a complaint or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link between the two events. See Lape v. Pennsylvania, 157 Fed.Appx. 491, 498 (3d Cir. 2005).

Because retaliation claims can be easily fabricated, district courts must view prisoners' retaliation claims with sufficient skepticism to avoid becoming entangled in every disciplinary action taken against a prisoner. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Finally, allegations of de minimis acts of retaliation do not state a claim under § 1983. Thaddeus-Xv. Blatter, 175 F.3d 378, 397 (6th Cir.1999); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001) (holding that a de minimis retaliatory act is outside the ambit of constitutional protection). Using these precepts, the Court will review Plaintiff's claim.

As to the first element, a prisoner's ability to file grievances and lawsuits against prison officials is a protected activity for purposes of a retaliation claim. See Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir.1981) (retaliation for exercising right to petition for redress of grievances states a cause of action for damages arising under the constitution); Woods, 60 F.3d at 1165 (prison officials may not retaliate against an inmate for complaining about a guard's misconduct). Plaintiff claims that the retaliation was the result of his filing grievances and PREA complaints against Defendant Ohrman and others. Defendants do not contest the first element at this stage of the litigation. Thus, the Court finds that Plaintiff has satisfied the first element.

However, the Court agrees with Defendants that Plaintiff has failed to plead any adverse actions that rise to the level of retaliatory conduct and therefore cannot establish the second element of his retaliation claim. Here Plaintiff alleges that the adverse actions to which he was subjected consist of searching his cell and destroying it, and “being burnt for yard, trays, showers.” ECF No. 19-4. The Court finds that these actions are de minimus and thus do not rise to the level of retaliatory conduct. Indeed, Plaintiff was not deterred from filing grievances and fully appealing them after the alleged retaliatory conduct occurred and from instituting this lawsuit. See ECF No. 19-5 at 1-2 (grievance no. 958891 dated 12/12/21);¹⁵ Id. at 4-6 (Plaintiff's appeals of grievance no. 958891). Nor was Plaintiff thwarted from filing grievances over the alleged acts of retaliation taken in response to his PREA complaints. See ECF No. 19-6 at 1-2 (grievance no. 957218 dated 11/30/21);¹⁶ Id. at 3 (grievance no. 957258 dated 12/2/21);¹⁷ Id. at 4-5 (grievance no. 958598 dated 12/12/21);¹⁸ Id. at 6 (grievance no. 969748 dated 2/24/22);¹⁹ and Id. at 7 (grievance no. 981352 dated 5/15/22).²⁰ Moreover, Plaintiff does not allege any conduct that the courts have recognized constitute retaliatory acts. As such, the Court finds that Plaintiff has failed to allege facts to plausibly establish the second element of his retaliation claim.²¹Therefore, the Court recommends that Defendants' motion to dismiss Plaintiff's First Amendment retaliation claim be granted and that claim dismissed with prejudice.

15 In grievance no. 958891, Plaintiff complains that he never received a notice of PREA investigation regarding his PREA complaint as to the First Incident and that the notice of PREA investigation that he received on 12/1/21 identified an incident on 6 /5/21 but there was no incident on that date. He further complains that Defendants Hawkinberry and John failed to acknowledge and investigate his PREA complaints. ECF No. 19-5 at 1-2.

16 In grievance no. 957218, Plaintiff describes how corrections officers not named in this lawsuit destroyed his cell in retaliation for Plaintiff filing a PREA complaint against Defendant Ohrman. ECF No. 19 -6 at 1-2.

17 In grievance no. 957258, Plaintiff complains that unidentified corrections officers, at the direction of Ohrman, searched his cell and messed it up in retaliation for his filing a PREA complaint against Ohrman. ECF No. 19-6 at 3.

18 In grievance no. 958598, Plaintiff complains that several corrections officers, none of which are named defendants in this lawsuit, after a strip search and being cuffed, searched and destroyed personal belongings in his cell, in retaliation for filing grievances or PREA complaints whenever officers do anything sexual or outside of policy. ECF No. 19-6 at 4. Plaintiff also alleges that he gets “burnt for shower & yard,” finds objects in his food, is subject to irregular cell searches, his personal property is confiscated, and things are planted in his cell. Id.

19 In grievance no. 969748, Pliantiff complains that a corrections officer (Streits) not a named defendant in this lawsuit threw his legal documents in the trash when he was in the shower out of retaliation. ECF No. 19-6 at 6.

20 In grievance no. 981352, Plaintiff complains that he gave a corrections officer his perfectly fine tablet to sync with the kiosk but when he got the tablet back the screen was shattered, and the CO admitted to dropping the tablet. Plaintiff speculates that his tablet could have been broken out of retaliation. ECF No. 19-6 at 7.

21 Because the Court finds that Plaintiff has failed to establish the second element of his retaliation claim, the Court need not consider whether he has met the third element.

7. Claims for Violations of DC-ADM Policies 008 and 804

Plaintiff alleges that Defendant House failed to follow Policy 804 by failing to place a tracking number on the grievance/PREA complaint dated September 6, 2021 in an attempt to discard or cover up the events alleged in the complaint. ECF No. 19 at 9, §IV.D; Id. at 13, ¶ 21; Ex. A to Complaint, ECF No. 19-1. In addition, Plaintiff asserts that Defendants Hawkinberry and John failed to properly acknowledge, investigate and report a PREA complaint in violation of DC-ADM Policy 008. ECF No. 19 at 13, ¶ 24; Id. at 15, § VII.C. & E.2. Defendants move to dismiss the claim for violation of DC-ADM Policy 008 which is the DOC's PREA policy. In support, they argue that neither the policy nor the statute upon which it is based, 42 U.S.C. §15601, et seq., establishes a private right of action. ECF No. 42 at 16 (citing Johnakin, 2022 WL 2651969, at *5). The Court agrees. See Brown, 2022 WL 4356847, at *2 (citing Johnakin, supra). Thus, the Court recommends that Defendants' motion to dismiss Plaintiff's claim for violations of the PREA and Policy 008 be granted and those claims be dismissed with prejudice.

In addition, although not raised in Defendants' motion to dismiss,²² the Court finds as a matter of law that Plaintiff has no private right of action against Defendant House for the alleged violation of the grievance procedures set forth in DC-ADM Policy 804. See Glenn, 599 Fed.Appx. at 459 (“Access to prison grievance procedures is not a constitutionally-mandated right, and allegations of improprieties in the handling of grievances do not state a cognizable claim under [section] 1983); Booth, 346 F.Supp.2d at 761 (“Prisoners are not constitutionally entitled to a grievance procedure and the state creation of such a procedure does not create a liberty interest requiring procedural protections under the Fourteenth Amendment.”). See also fn. 9, supra. Accordingly, the Court recommends that Plaintiff's claim against Defendant House for violating Policy 804 be dismissed with prejudice.

22 The Court may sua sponte dismiss a claim if the Court determines that the plaintiff has failed to state a claim upon which relief can be granted. 42 U.S.C. § 1997e(c)(1).

8. Compensatory Damages for Mental/Emotional Injury

For relief in this lawsuit, Plaintiff seeks, among other things, compensatory damages. Defendants ask the Court to deny Plaintiff's request for compensatory damages because Plaintiff has not alleged a sexual act as required by the plain language of 42 U.S.C. §1997e(e). Section 1997e(e) provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).” The definition of a “sexual act” in Section 2246 does not include touching through clothing. 18 U.S.C. § 2246(2). Defendants submit that the conduct alleged in the First and Second Incidents does not meet the definition of a sexual act under §2246(2) as the touching in the First Incident was through clothing, and no touching was involved in the Second Incident. The Court agrees with Defendants that the Complaint fails to allege a sexual act as defined in Section 2246(2). In addition, the Court notes that Plaintiff has not alleged any physical injury resulting from the alleged constitutional violations.

Accordingly, because Plaintiff has failed to allege a physical injury or a sexual act as required by § 1997e(e), Plaintiff is barred from recovering compensatory damages in this lawsuit. Thus, the Court recommends that Defendants' request to deny Plaintiff's request for compensatory damages be granted.

D. Conclusion

For the reasons set forth above, it is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 41) be granted in part and denied in part as follows:

The Court recommends that Defendants' motion to dismiss be GRANTED as to:

1. Plaintiff's claims for alleged violations of Art. 1, § 13 of the PA Constitution and recommends dismissal with prejudice as to all Defendants;

2. Plaintiff's claim against Defendants Hawkinberry, House, John, Capazzo, Trempus, and Armel for alleged violations of Pennsylvania state law and recommends dismissal with prejudice as to these Defendants;

3. Plaintiff's U.S. Constitution and Section 1983 claims against all Defendants in their official capacities and recommends dismissal with prejudice;

4. Plaintiff's Section 1983 claims against Defendants Capazzo and Armel for lack of personal involvement in the alleged constitutional violations and recommends dismissal without prejudice;

5. Plaintiff's Eighth Amendment sexual abuse claim against Defendant Ohrman as to the Second Incident and recommends dismissal of this claim with prejudice;

6. Plaintiff's Eighth Amendment failure to protect claim against Defendants Hawkinberry and John and recommends dismissal of this claim with prejudice;

7. Plaintiff's Fourteenth Amendment claim and recommends dismissal of this claim with prejudice;

8. Plaintiff's failure to investigate claim against Defendants Hawkinberry and John and recommends dismissal of this claim with prejudice;

9. Plaintiff's First Amendment Retaliation claim and recommends dismissal of this claim with prejudice;

10. Plaintiff's claim for a violation of DC-ADM Policy 008 against Defendants Hawkinberry and John and recommends dismissal of this claim with prejudice;

11. Plaintiff's request for compensatory damages and recommends denial of such relief.

It is further recommended that Plaintiff's claim for a violation of DC-ADM Policy 804 against Defendant House be dismissed sua sponte with prejudice.

Accordingly, the Court recommends that Defendants House, Hawkinberry, and John be terminated from this case.

The Court recommends that Defendants' motion to dismiss be DENIED as to:

1. Plaintiff's claim against Defendant Ohrman for the alleged violation of Pennsylvania state law;

2. Plaintiff's Section 1983 claims against Defendant Trempus based on lack of personal involvement; and

3. Plaintiff's Eighth Amendment sexual abuse claim against Defendant Ohrman as to the First Incident.

The Court further recommends that Plaintiff be given leave to file an amended complaint to:

(1) set forth sufficient facts to show personal involvement by Defendants Capazzo and Armel and identifying the specific constitutional laws that he alleges they violated, setting forth sufficient factual allegations to support each element of each claim; and

(2) identify which constitutional claims he is pursuing against Defendant Trempus and set forth facts to support each element of those claims in an amended complaint including facts to show his personal involvement in the alleged violations. Failure to comply with paragraphs (1) and (2) above will result in the Court recommending that the Complaint against Defendants Capazzo, Armel, and Trempus be dismissed with prejudice.

In addition, Plaintiff is advised that if he choses to file an amended complaint, it must include any and all claims that were not dismissed with prejudice that he wishes to pursue going forward. The amended complaint is a stand-alone document which supersedes any previously filed Complaints, and Plaintiff must include all claims and defendants against whom he wishes to proceed in the amended complaint.

The Court further recommends that Plaintiff be allowed twenty-one (21) days from the date the District Judge enters an Order on this Report and Recommendation to file his amended complaint.

In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.