                                                  NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ___________

                          No. 13-1662
                          ___________

                      JOHNSON OBIEGBU,
                                  Appellant

                                v.

ROBERT WERLINGER, Warden, FCI Loretto; MS. PHILIPS, Captain;
     MS. COHO, Lieutenant; S. ADAMS, Correctional Officer;
                S. BURKE, Physician Assistant;
MR. DIGNAN, Correctional Officer; J. DAVENPORT, S.I.S. Lieutenant
          ____________________________________

          On Appeal from the United States District Court
             for the Western District of Pennsylvania
              (D.C. Civil Action No. 3-13-cv-00002)
            District Judge: Honorable Kim R. Gibson
           ____________________________________

           Submitted Pursuant to Third Circuit LAR 34.1(a)
                         September 2, 2014
   Before: CHAGARES, KRAUSE and SLOVITER, Circuit Judges

                (Opinion filed: September 8, 2014 )

                          ___________

                           OPINION
                          ___________




                                1
PER CURIAM

         Johnson Obiegbu, proceeding pro se, appeals from the District Court’s order

dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons that

follow, we will affirm in part and vacate and remand in part.

                                              I.

         Obiegbu, a federal prisoner, filed an action pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against various

employees and administrators of FCI-Loretto in Loretto, Pennsylvania. In his complaint,

Obiegbu alleged that he was sexually assaulted when, as part of a pat-down search, a

correctional officer grabbed his genitals twice. He alleged that he received inadequate

medical treatment for the injury resulting from the sexual assault. He also claimed that

he was retaliated against for reporting the incident and that the retaliation resulted in the

loss of his appellate rights. A Magistrate Judge recommended dismissing the complaint

for failure to state a claim with respect to the sexual assault and the denial of medical

treatment. The Magistrate Judge did not analyze the claims of retaliation or denial of

access to the courts, and granted leave to amend only the claim regarding the sexual

assault. Obiegbu objected to the Magistrate Judge’s report and recommendation and

contended that the complaint was adequate as it stood, but he did not file an amended

complaint. The District Court disagreed with the objections and dismissed the complaint

with prejudice. Obiegbu timely appealed.1



1
    We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.
                                               2
                                               II.

       We exercise plenary review over the District Court’s dismissal order. See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Dismissal is appropriate where the pleader

has not alleged “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations

omitted). This inquiry has three parts: “(1) identifying the elements of the claim, (2)

reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-

pleaded components of the complaint and evaluating whether all of the elements

identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641

F.3d 560, 563 (3d Cir. 2011). “[A]n unadorned, the-defendant-unlawfully-harmed-me

accusation” is not sufficient for a complaint to state a claim. Iqbal, 556 U.S. at 678.

       Upon review, we conclude that the District Court correctly dismissed Obiegbu’s

sexual assault claim. While it is possible for sexual abuse of a prisoner to violate the

Eighth Amendment, see Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997), a small

number of incidents in which a prisoner is verbally harassed, touched, and pressed

against without his consent do not amount to such a violation. Id. Rather, “isolated

episodes of harassment and touching . . . are despicable and, if true, they may potentially

be the basis of state tort actions. But they do not involve a harm of federal constitutional

proportions as defined by the Supreme Court.” Id. Here, Obiegbu challenged a single

pat-down frisk in which a correctional officer grabbed Obiegbu’s genitals through his

clothing two times. This event was, at most, an isolated episode of harassment and


                                               3
touching, and did not violate Obiegbu’s Eighth Amendment rights. We therefore agree

with the District Court’s dismissal of this claim.

       We also agree with the District Court’s dismissal of Obiegbu’s claim regarding the

medical treatment he received following the pat-down incident. In this context, the

relevant inquiry is whether the defendant was deliberately indifferent to the plaintiff’s

serious medical need. See Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d

326, 346 (3d Cir. 1987). “Where a prisoner has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are generally reluctant to

second guess medical judgments and to constitutionalize claims which sound in state tort

law.” United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)

(internal quotation marks omitted). Here, Obiegbu claimed that he experienced swollen

genitals as a result of the alleged assault, but admitted in his complaint that he was seen

and examined on January 28, 2011, by the prison’s medical and psychological staff, who

found that any injury he might have suffered had dissipated by this time. This admission

demonstrates that Obiegbu did receive some amount of medical attention, and that he is

merely disagreeing with its adequacy. Accordingly, this claim was properly dismissed

without leave to amend.

       Upon review, we find that Obiegbu did successfully state a claim for retaliation.

The Magistrate Judge did not analyze this claim in his report and recommendation, and

the District Court did not reference the claim in its order dismissing the complaint. A

plaintiff in a retaliation case must prove that: (1) he engaged in constitutionally protected


                                              4
conduct, (2) he then suffered some adverse action caused by prison officials; and (3) a

causal link existed between the protected conduct and the adverse action. Rauser v.

Horn, 241 F.3d 330, 333 (3d Cir. 2001) (internal quotation marks omitted). The requisite

causal connection can be demonstrated by “(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.” Lauren W. ex rel.

Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Obiegbu asserted that he filed

an administrative complaint regarding the sexual assault on January 14, 2011. Two

weeks later, he was placed in the Special Housing Unit (“SHU”) pending an investigation

into his alleged involvement in a plot to attack several prison employees. He was later

cleared of any involvement. Around the same time, the defendants allegedly denied him

access to legal material and disrupted the processing of his grievance procedure.2 A

transfer to administrative custody is a sufficiently adverse action, as is the confiscation of

Obiegbu’s legal material. See Allah, 229 F.3d at 225-26. In light of the close temporal

proximity between Obiegbu’s filing of a grievance and the actions taken against him, we

find that Obiegbu has stated a claim for retaliation.


2
  The appellees urge this Court to affirm dismissal on the basis of Obiegbu’s failure to
exhaust. While inmates are required to exhaust all available administrative remedies
before filing a lawsuit, see 42 U.S.C. § 1997e(a), such remedies will be considered
unavailable if the actions of prison officials directly caused the failure to exhaust. See
Camp v. Brennan, 219 F.3d 279, 280-81 (3d Cir. 2000). Because Obiegbu alleged that
the appellees interfered with his access to the grievance procedure as part of their
retaliatory conduct, we elect not to find that, as a matter of law, Obiegbu has failed to
satisfy the exhaustion requirement. This is a factual matter that is more appropriately
decided by the District Court upon remand.

                                              5
       Finally, we find that Obiegbu did not state a claim for denial of his right of access

to the courts, but that the District Court erred by not analyzing this claim and therefore

not permitting it to be amended. Dismissal of a pro se plaintiff’s complaint without leave

to amend is proper under 28 U.S.C. § 1915(e)(2)(B) only when amendment of the

complaint would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002). A prisoner making an access-to-the-courts claim is required to

show that the denial of access caused actual injury. Lewis v. Casey, 518 U.S. 343, 349-

50 (1996). Actual injury occurs when a prisoner demonstrates that a “nonfrivolous” and

“arguable” claim was lost because of the denial of access to the courts. Christopher v.

Harbury, 536 U.S. 403, 415 (2002). Obiegbu specified only that the defendants

deliberately interfered with his right to appeal the Fifth Circuit’s determination regarding

his sentence by placing him in the SHU and subsequently transferring him to another

correctional institution. He did not give specifics regarding the type of proceeding or the

claims made therein, describing it only as “ongoing criminal appeals.” If leave to amend

had been granted, Obiegbu might have been able to describe adequately an actual injury

and therefore state a viable claim for the denial of access to the courts.




                                              6
                                            III.

       For the foregoing reasons, we will affirm in part, vacate in part, and remand for

further proceedings consistent with this opinion.3




3
  Upon consideration of the factors set forth in Tabron v. Grace, 6 F.3d 147, 155-56 (3d
Cir. 1993), Obiegbu’s motion for appointment of counsel is denied. Although Obiegbu
has satisfied the threshold requirement of showing that his appeal has arguable merit, the
remaining Tabron factors do not warrant appointing counsel.
                                              7
