BLD-238                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-1245
                                       ___________

                               KAREEM ARMSTRONG,
                                               Appellant

                                             v.

                                  C.O. DIRAIMO
                       ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 1-17-cv-00237)
                    Magistrate Judge: Honorable Richard A. Lanzillo
                     ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 18, 2019
             Before: AMBRO, KRAUSE, and PORTER, Circuit Judges

                              (Opinion filed: July 22, 2019)
                                     ___________

                                        OPINION*
                                       __________
PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Kareem Armstrong appeals the Magistrate Judge’s1 grant of summary judgment in

his civil rights action. We will summarily affirm.

      Armstrong’s case involves a random pat-down search while he was incarcerated at

State Correctional Institution at Albion. On October 8, 2016, Armstrong and another

inmate, Tyrone Green, were returning to their housing unit after picking up medication

when Correctional Officer Diraimo stopped them and ordered Armstrong over to the

guard station for a random pat-down search. Armstrong alleged that during this search

Diraimo placed his hands inside Armstrong’s boxer shorts, stroked his penis once, and

grabbed his scrotum. When Armstrong objected, Diraimo allegedly stated, “I do what the

fuck I want,” and “I felt bigger.”2 Armstrong subsequently filed a complaint pursuant to

the Prison Rape Elimination Act (“PREA”), 34 U.S.C. § 30301, et seq., against Diraimo.

      On March 20, 2017, Armstrong was returning from the medication line when

Diraimo again ordered him to submit to a random pat-down. Armstrong informed

Diraimo that Diraimo was not permitted to talk to him or touch him because of the

pending PREA investigation. Diraimo allegedly responded by stating, “You enjoy the

way, I touch you and the way you stick your ass out got my dick hard. Your PREA

complaint don’t work and when, I caught you alone I’m gonna show you what a real dick



1
 The parties consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. §
636(c)(1).
2
 In his sworn declaration, Green stated that he heard Armstrong object, asking “why are
you touching me there?” to which he “heard Diraimo state aggressively ‘I do the fuck
what I want’ and ‘I felt bigger.’” Dkt. #37 at 7.

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looks like.” Dkt. #55 at 4. Diraimo did not conduct a pat-down, and Armstrong was free

to leave. Diraimo did not touch Armstong at any point during their second encounter.

       Armstrong filed suit pursuant to 42 U.S.C. § 1983, alleging violations of the First,

Eighth, and Fourteenth Amendments for retaliation, sexual harassment, and

discrimination, respectively. Armstrong argued that Diraimo’s pat-down search on

October 8, 2016, violated the Eighth Amendment and that Diraimo intentionally

discriminated3 against him for that pat-down. Armstrong further argued that the second

encounter on March 20, 2017, was in retaliation for the PREA complaint. After cross

motions for summary judgment, the Magistrate Judge granted summary judgment in

favor of Diraimo. In granting summary judgment, the Magistrate Judge held that

Armstrong failed to establish essential elements in his Eighth Amendment claim for

sexual harassment. As to Armstrong’s claim of discrimination in violation of the Equal

Protection Clause of the Fourteenth Amendment, the Magistrate Judge held that

Armstrong had failed to develop any evidentiary basis that would support his claim of

discrimination, in addition to failing to show that he was a member of a protected class.

Finally, the Magistrate Judge ruled that Armstrong’s claim of retaliation for the March

20, 2017, encounter failed because Armstrong did not suffer any adverse action.

Armstrong timely appealed.




3
  Armstrong asserted that Diraimo violated the Fourteenth Amendment “[b]ecause
everyone who is similarly situated as me, being a prisoner, has to be treated all the same
way. So if he’s pat searching me inappropriately, but not pat searching anyone else
inappropriately, then he’s just being discriminatory towards me.” Dkt. #46-1 at 20.
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       We have jurisdiction over the appeal of the Magistrate Judge’s judgment. See

28 U.S.C. §§ 636(c)(3), 1291. We review the summary judgment ruling de novo.

Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). Summary judgment

is proper when, viewing the evidence in the light most favorable to the nonmoving party

and drawing all inferences in favor of that party, there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006). A party

opposing summary judgment must cite to specific materials in the record that

demonstrate the existence of a disputed issue of material fact. Fed. R. Civ. P.

56(c)(1)(A). Summary judgment must be granted against a party who fails to establish

the existence of an essential element to that party’s case, if that party will bear the burden

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

       Armstrong asserted that the random pat-down on October 8, 2016, violated his

Eighth Amendment “right to be free from ‘cruel and unusual punishments’ while in

custody.” Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018). In Ricks, we recognized

that sexual abuse of an inmate by a corrections officer may violate the Eighth

Amendment. See id. Like other Eighth Amendment claims, the framework for analyzing

a sexual abuse claim consists of objective and subjective components. Id. at 474–75.

“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. at 475. A single

incident, if sufficiently serious or severe, can violate the Eighth Amendment. Id. at 477.

However, the standard is not “zero tolerance for all minor sexualized touching in prison,

                                              4
such that all such claims are objectively serious to a constitutional degree.” Id. (emphasis

added).

       Upon review, we agree with the Magistrate Judge that Armstrong failed to provide

evidence to support the existence of the subjective component mentioned above.4

“Regarding the subjective prong, we consider whether the official had a legitimate

penological purpose or if he or she acted ‘maliciously and sadistically for the very

purpose of causing harm.’” Id. at 475; see also Crawford v. Cuomo, 796 F.3d 252, 257–

58 (2d Cir. 2015) (“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.”). Here, the alleged

sexual abuse occurred during a random pat-down of Armstrong, and thus the alleged

contact with Armstrong’s genitals was incidental to a legitimate penological purpose.

See Crawford, 796 F.3d at 257–58; see also Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629

F.3d 1135, 1152 (9th Cir. 2011) (Smith, J. concurring in part and dissenting in part)

(noting a “pat-down is done to detect contraband that may be taped to the contours of an

inmate’s body, including the genital area”). Furthermore, the evidence in the summary

judgment record does not suggest that Diraimo was conducting the pat-down as a pretext




4
 Accordingly, we need not address whether the incident on October 8 satisfied the
objective element.

                                                5
to sexually arouse or gratify himself.5 Accordingly, we agree that summary judgment

was appropriate. See Celotex Corp., 477 U.S. at 322–23.

       As to Armstrong’s other claims of discrimination and retaliation, we conclude, for

the reasons already thoroughly detailed by the Magistrate Judge, that summary judgment

was appropriate. The Magistrate Judge correctly held that Armstrong failed to establish

he is a member of a suspect class; thus, his equal protection claim failed. See Abdul-

Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001) (en banc) (noting prisoners are not

a suspect class for equal protection purposes). To the extent Armstrong based his equal

protection claim on a “class of one” theory, he failed to point to evidence in the summary

judgment record that Diraimo treated him differently from his fellow inmates. See PG

Publ’g Co. v. Aichele, 705 F.3d 91, 114–15 (3d Cir. 2013).

       Finally, the Magistrate Judge correctly concluded that Armstrong’s retaliation

claim failed because he did not point to evidence showing that he suffered any adverse

action. See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (listing elements for a

retaliation claim); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (noting an

adverse action is one “sufficient to deter a person of ordinary firmness from exercising



5
  Diraimo’s response to Armstrong’s objection to the search—that he “do[es] the fuck
what [he] want[s]”—does not signify that the search was sexually motivated; rather, it
was Diraimo’s unsophisticated justification for the search. See Crawford, 796 F.3d at
258 (noting prison officials looking for contraband may subject inmates to cavity
searches that are of an “intensely personal nature”). Diraimo’s subsequent statement that
he had “felt bigger” is a juvenile taunt. To be sure, Diraimo’s comments were
inappropriate and unprofessional, but neither comment suggests a “culpable state of
mind” indicating that the search was undertaken maliciously or for the purpose of
sexually abusing Armstrong. See id. at 256.
                                             6
his First Amendment rights.” (internal quotation marks omitted)). Moreover, the only

retaliatory conduct alleged was a single verbal interaction with Diraimo approximately

five months after the PREA complaint was filed. See Watson, 834 F.3d at 424 (noting an

inmate “can establish the third element of a prima facie case of retaliation with evidence

of: (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” (emphasis added)).

       For all of the foregoing reasons, we will summarily affirm. See 3d Cir. L.A.R.

27.4; 3d Cir. I.O.P. 10.6.




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