                                  PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                No. 16-2939
                ___________


         MR. GREGORY L. RICKS,
                            Appellant

                      v.

   LIEUTENANT D. SHOVER; C/O KILE

     ______________________________

       On Appeal from the District Court
    for the Eastern District of Pennsylvania
          (E.D. Pa. No. 2-15-cv-03618)
 District Judge: Honorable Wendy Beetlestone
    ________________________________

         Argued on February 8, 2018

Before: CHAGARES, SCIRICA, and RENDELL,
              Circuit Judges

         (Opinion filed: June 5, 2018)
James A. Kraehenbuehl      [Argued]
Boies Schiller Flexner
1401 New York Avenue, N.W.
Washington, DC 20005
              Counsel for Appellant

Josh Shapiro
       Attorney General
Claudia M. Tesoro           [Argued]
       Senior Deputy Attorney General
John G. Knorr, III
       Chief Deputy Attorney General
       Chief, Appellate Litigation Section
Office of Attorney General of Pennsylvania
21 South 12th Street
3rd Floor
Philadelphia, PA 19107
              Counsel for Appellee




                       OPINION



RENDELL, Circuit Judge:

      In this § 1983 case, Plaintiff-Appellant Gregory Ricks,
a former inmate at Pennsylvania State Corrections facility
SCI-Graterford, appeals the dismissal of his complaint




                             2
alleging sexual abuse and excessive force in violation of the
Eighth Amendment. His two claims arise from an alleged
incident where, during a routine morning pat-down,
Corrections Officer Keil rubbed his erect penis against Ricks’
buttocks through both men’s clothing. When Ricks stepped
away and verbally protested to Keil’s supervisor, Lieutenant
Shover, Ricks alleges that Shover “slammed” Ricks against
the wall, causing injuries to his face, head, neck, and back.
A. 15.

       Ricks proceeded pro se, and before the merits of his
claims could be tested, the District Court granted a motion to
dismiss for failure to state a claim, with leave to amend.
Ricks did not amend his complaint, and the District Court
then dismissed his complaint with prejudice. In so doing, the
District Court cited our Circuit’s non-precedential opinion,
Obiegbu v. Werlinger, where we indicated that “a small
number of incidents in which a prisoner is verbally harassed,
touched, and pressed against without his consent do not
amount” to an Eighth Amendment violation. 581 F. App’x
119, 121 (3d Cir. 2014).

       Whether sexual abuse can constitute “cruel and
unusual punishment” under the Eighth Amendment is a
matter of first impression in our Court. We write today to
state in plainest terms that it does. Our society requires
prisoners to give up their liberty, but that surrender does not
encompass the basic right to be free from severe unwanted
sexual contact.

      We will give Ricks another chance to cure his
complaint as it relates to the Eighth Amendment sexual abuse
claim against Keil, with a view to the applicable law as




                              3
discussed herein. Although his sexual abuse claim as to
Shover under a participation or failure-to-intervene theory
was properly dismissed, Ricks’ excessive force claim stands
on a different footing and should have been permitted to
survive the motion to dismiss. We will therefore affirm in
part, vacate in part, and reverse in part the District Court’s
order, and remand for further proceedings consistent with this
opinion.

                    I. BACKGROUND

                          A. Facts

       In reviewing the District Court’s dismissal order, we
accept as true the following facts, set forth in Ricks’
complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007). On the morning of September 17, 2014, Ricks, an
inmate at SCI-Graterford,1 was on his way to the law library
during morning line movements when Corrections Officer
Keil2 directed him to undergo a pat-down search in a public
hallway. Ricks complied and submitted to the search, which
he alleges was captured by video camera.

       While being searched from behind, Ricks felt Keil’s
erect penis (under clothing) “rubbing up against” Ricks’
clothed buttocks. A. 15. Ricks stepped away from Keil and
told him he was “on [his] (ASS).” Id. Ricks told Lt. Shover,


1
  Ricks has since been released on parole.
2
  In his complaint, and as reflected on this case’s caption,
Ricks refers to “C/O Kile.” The Commonwealth later
identified him as Corrections Officer Paul Keil.




                              4
who was overseeing the line movement, that Keil “is
[r]ubbing [u]p against my [b]ehind with his genitals.” Id.
       Shover asked Ricks “what [d]id you say.” Id. Ricks
explained, and Shover “came over to [him] and just slammed
[him] in the . . . wall.” Id. This action gave Ricks a black
eye, a “[b]usted” nose and lip, and injuries to his head, neck,
and back.3 Id. Shover then told Ricks to place his hands
behind his back so he could be cuffed and returned to his cell.
Ricks complied. On the way to Ricks’ cell, Shover directed
several racial slurs at him. Ricks also alleges that in the past,
Shover had continuously harassed him, and that he had
reported this conduct to other prison officials.

                    B. Procedural History

       After exhausting administrative remedies, Ricks filed a
complaint in the United States Court for the Eastern District
of Pennsylvania against Officer Keil and Lt. Shover. He
sought monetary and injunctive relief for racial
discrimination, harassment, sexual abuse, and the use of
excessive force.4 Proceeding pro se, his standard § 1983
Prisoner Complaint form briefly set out the above facts.
Defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss.

       The District Court granted the motion, holding that
Ricks failed to allege a violation of his Eighth Amendment
rights. The District Court dismissed Ricks’ sexual abuse

3
  On his standard Prisoner Complaint form, Ricks did not
allege having received any medical treatment for these
injuries.
4
  Ricks has not pursued his claims for racial discrimination or
harassment in this appeal.




                               5
cause of action, citing our non-precedential opinion in
Obiegbu v. Werlinger, 581 F. App’x 119, 121 (3d Cir. 2014),
in which we stated that “a small number of incidents in which
a prisoner is verbally harassed, touched, and pressed against
without his consent do not amount” to an Eighth Amendment
violation. The Court then referred to the five-factor test for
excessive force set out in Smith v. Mensinger, 293 F.3d 641
(3d Cir. 2002), and dismissed Ricks’ excessive force claim as
well.

       The Court dismissed Ricks’ case without prejudice,
granting him leave to amend his complaint. The Court
instructed Ricks to describe “(a) the specific statutory basis
for federal jurisdiction over this case; (b) the specific events
which serve as the basis for his claim; (c) how the defendant
is involved in his claims; and (d) the harm he suffered, if any,
from each violation.” A. 2. Ricks did not file an amended
complaint within the allotted time frame, and so the District
Court converted its dismissal to one with prejudice. This
appeal followed.5

                      II. DISCUSSION

      The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 & 1343. We have jurisdiction under 28
U.S.C. § 1291, as the District Court’s dismissal with

5
  Coupled with his motion for appointed counsel, which we
granted, Ricks filed a motion for extension of time to amend
his complaint. Ricks’ attorney is appearing pro bono. We
express our gratitude to him for accepting this matter and for
the high caliber of representation of his client before our
Court.




                               6
prejudice was a final order. We exercise plenary review over
the dismissal of a complaint under Federal Rule of Civil
Procedure 12(b)(6). United States ex rel. Customs Fraud
Investigations, LLC v. Victaulic Co., 839 F.3d 242, 248 (3d
Cir. 2016). We accept all factual allegations in the complaint
as true, and affirm the dismissal only if the well-pleaded
facts, accepted as true, do not plausibly provide a basis for
relief. Twombly, 550 U.S. at 570. When a plaintiff files pro
se, we have “a special obligation to construe his complaint
liberally.” Zilich v. Lucht, 981 F.2d 694, 694 (3d Cir. 1992).

       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 (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 (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 (1991). Second, the conduct must have
been objectively “harmful enough,” or “sufficiently serious”
to violate the Constitution. Id. at 298, 303.

       Ricks has asserted two types of Eighth Amendment
claims: one for sexual abuse (against both Defendants), and
one for excessive force (against Lt. Shover only). We
examine each in turn.

                   A. Sexual Abuse Claim

      Whether sexual abuse of inmates by prison officials
offends the Eighth Amendment is a matter of first impression
in our Court. Today, we join numerous sister Circuits in




                              7
holding that prison sexual abuse can violate the Constitution.
See Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012);
Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2000);
Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000);
Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.
1999); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997).
We agree that “sexual abuse of prisoners, once overlooked as
a distasteful blight on the prison system, offends our most
basic principles of just punishment.” Crawford v. Cuomo,
796 F.3d 252, 260 (2d Cir. 2015). Sexual abuse invades the
most basic of dignity interests: to be treated as a human
being. We condemn such abuse as it is “simply not part of
the penalty that criminal offenders pay for their offenses
against society.” Boddie, 105 F.3d at 861 (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)).

       1. Legal Framework

        Though the Supreme Court has not addressed sexual
abuse of inmates by prison officials, courts grappling with
this issue have drawn from the Supreme Court’s excessive
force precedents and its holding in Farmer v. Brennan that
sexual assaults of inmates by inmates can implicate the right
to be free from cruel and unusual punishment. See, e.g.,
Boddie, 105 F.3d at 861. Thus, the framework for excessive
force claims set forth in Hudson v. McMillian—composed of
a subjective and objective prong—has evolved to encompass
claims for sexual abuse and harassment by prison officials as
well. See, e.g., id. (describing the Hudson test’s objective and
subjective components as applying to sexual abuse claims);
Boxer X, 437 F.3d at 1111 (same); Freitas v. Ault, 109 F.3d
1335, 1338 (8th Cir. 1997) (same).




                               8
       In particular, the United States Court of Appeals for
the Second Circuit’s reasoning in its two landmark Eighth
Amendment sexual abuse cases informs our analysis. In
1997, the Second Circuit concluded in Boddie v. Schnieder
that in some circumstances, sexual abuse could present a
cognizable Eighth Amendment claim. 105 F.3d at 861.
There, the plaintiff had alleged that a female corrections
officer squeezed his penis and said “[Y]ou know [you’re] a
sexy black devil, I like you.” Id. at 860 (first alteration in
original). He further averred that she bumped into him “with
both her breast so hard [he] could feel the points of her
nipples against [his] chest,” and that she “bumped into him . .
. with her whole body vagina against penis pinning [him] to
the door.” Id.

       As to the objective prong, the Court stated that “there
can be no doubt that severe or repetitive sexual abuse of an
inmate by a prison officer can be ‘objectively, sufficiently
serious’ enough to constitute an Eighth Amendment
violation.” Id. at 861 (quoting Farmer, 511 U.S. at 834).
Concerning Hudson’s subjective prong, the Court declared
that “[w]here no legitimate law enforcement or penological
purpose can be inferred from the defendant’s alleged conduct,
the abuse itself may, in some circumstances, be sufficient
evidence of a culpable state of mind.” Id. The Court thus
concluded that sexual abuse could meet both prongs of
Hudson’s test for Eighth Amendment violations—although
on the facts before it, the Court declined to find a sufficiently
objective harm in order to state a constitutional claim. Id.

       Nearly twenty years later, the Second Circuit clarified
that “Boddie recognized that a single act of sexual abuse may
violate the Eighth Amendment if, as in this case, it is entirely




                               9
gratuitous and devoid of penological purpose.” Crawford,
796 F.3d. at 257 (emphasis added). In Crawford, one of the
two plaintiffs alleged that during a frisk in the middle of a
visit with the inmate’s wife, the defendant corrections officer
fondled and squeezed his penis to “make sure [he] did not
have an erection.” Id. at 255. The other plaintiff alleged that
during a search, the officer grabbed and held his penis and
asked “what’s that?” Id. The officer then pinned the plaintiff
to the wall while continuing to “squeeze” and “fondle” the
area around his penis and “roam” his hands down the
inmate’s thigh. Id. The officer also threatened the inmate
with solitary confinement if he resisted the abuse. Id. The
Court explained that “[to] show that an incident or series of
incidents was serious enough to implicate the Constitution, an
inmate need not allege that there was penetration, physical
injury, or direct contact with uncovered genitalia.” Id. at 257.
Rather, the Court held that “[a] corrections officer’s
intentional contact with an inmate’s genitalia or other
intimate area, which serves no penological purpose and is
undertaken with the intent to gratify the officer’s sexual
desire or to humiliate the inmate, violates the Eighth
Amendment.” Id. at 254.

       Following Boddie and Crawford, we resolve that a
properly stated Eighth Amendment sexual abuse claim need
not necessarily depend on the number of incidents. We agree
with the statement made by the Court in Crawford that “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.” Id. at 257 (emphasis
added).




                              10
       Here, without analyzing Ricks’ sexual abuse claim, the
District Court cited to our non-precedential opinion in
Obiegbu v. Werlinger, 581 F. App’x 119 (3d Cir. 2014), for
the proposition that a single incident cannot constitute a
constitutional violation. While we cannot be sure if the
District Court intended to impose a formal numerosity
requirement on Ricks’ claims, we conclude that an emphasis
on the number of incidents as a gatekeeper for objective
seriousness is misplaced. We decline to adopt a per se rule
regarding the number of incidents as bearing on severity.
Instead, we conclude that the test will turn on an analysis of a
subjective and an objective component. 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. We next turn to what each prong requires.

       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.” Albers, 475 U.S. at 319–320 (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
Because this is a 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. Washington, 695 F.3d at 643; see Crawford, 796 F.3d
at 258 (“There is no penological justification for checking to
see if an inmate has an erection . . . .”). The nature of the
violative conduct itself will often be enough to demonstrate
the prison official’s culpable state of mind. See 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




                               11
violation is self-evident because there can be no penological
justification for such contact.”).

       While the subjective inquiry involves a judgment call
that may be relatively easy to make based on the specific
circumstances, the objective prong seems more difficult.
What level of inappropriate conduct objectively constitutes a
violation? At the outset, we readily acknowledge that this
kind of line-drawing is difficult in part because it is
uncomfortable. It requires parsing a set of allegations or facts
that may be deeply troubling, and making a judgment as to
whether the conduct alleged implicates the Constitution.
Nevertheless, it is within our purview to provide guidance as
to which claims may “involve a harm of federal constitutional
proportions.” Boddie, 105 F.3d at 861.

       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. Indeed, “[t]he
Constitution ‘does not mandate comfortable prisons.’”
Farmer, 511 U.S. at 832 (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (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 (quoting Whitley, 475 U.S. at 327). The
objective element “is therefore contextual and responsive to
‘contemporary standards of decency.’” Id. at 8 (quoting
Estelle v. Gamble, 429 U.S. 97, 103 (1976)).             And
“conditions that cannot be said to be cruel and unusual under
contemporary standards are not unconstitutional.” Rhodes,
452 U.S. at 347.




                              12
        Ricks has urged us to adopt a standard that would
collapse the subjective and objective inquiries, so that a
finding of a lack of penological purpose would be
determinative. He draws this standard from Crawford, in
which the Court declared that: “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.” 796 F.3d at 257–58.

        We do not take issue with the focus of the analysis by
other courts on whether the official performing the search had
a penological purpose. See, e.g., id. at 258 (concluding that
“no amount of gratuitous or sexually-motivated fondling of
an inmate’s genitals” is constitutional). That is, when a
search involves intrusive, intimate touching to ensure that
contraband and weapons are not present, an inquiry into its
purpose is legitimate. For instance, in Crawford, the
corrections officer allegedly “fondled and squeezed [the
plaintiff’s] penis” during a visit with the plaintiff’s wife, to
“make sure [he] did not have an erection.” Id. at 258. We
have no doubt that this level of touching would be
objectively, sufficiently serious to violate the Constitution.
But because it occurred during a search, the Court needed to
determine whether that search was legitimate or pretextual.
Moreover, the Court clarified that “even if contact between an
officer and inmate’s genitalia was initially justified, if the
officer finds no contraband, continued sexual contact may be
actionable.” Id. at 257.

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




                                13
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.

       We have previously discussed this distinction as it
pertains to claims for unconstitutional prison conditions. In
Parkell v. Danberg, where an inmate was “subjected to
thrice-daily visual body-cavity searches,” we concluded that
those searches would only be cruel and unusual if they were
“undertaken maliciously or for the purposes of sexually
abusing” the plaintiff. 833 F.3d 313, 335–36 (3d Cir. 2016)
(quoting Crawford, 796 F.3d at 258). We found a focus on
intent necessary to demarcate permissible from ultra vires
invasiveness. Accordingly, the inquiry to define culpable
state of mind versus legitimate penological purpose is a
necessary, but not sufficient, inquiry.

       Fusing the subjective and objective inquiries, as Ricks
urges we must, would constitutionalize any alleged touch, if
the corrections officer lacked a penological purpose. We
decline to entirely eliminate the objective prong of the
analysis by collapsing it with the subjective prong. That is to
say, even if sexualized touching lacks a penological purpose,
it may still fall below the threshold of constitutional
cognizability based on a lack of objective seriousness.

       As noted above, a single incident, if sufficiently
serious or severe, can run afoul of the Eighth Amendment as
surely as can multiple, less egregious incidents. While a




                              14
pattern of harassment and sexualized touching may more
clearly be considered objectively “cruel and unusual,” that
does not diminish the harm that may arise from an isolated
act.    See Crawford, 796 F.3d at 257 (stating that
“[r]ecurrences of abuse” are relevant, but not dispositive, to
severity).

       Moreover, while our framework explicitly draws from
the Supreme Court’s excessive force jurisprudence, the
absence of force or injury will not doom a sexual abuse claim
outright. Although physical injury will certainly signal
severity, it is not the touchstone for objective seriousness.6
Whether an action is sufficiently harmful to be cruel and
unusual cannot be determined only by looking at physical
injury, because an abusive sexual encounter may not leave
any marks. Indeed, sexual abuse “tend[s] rather to cause
significant distress and often lasting psychological harm.”
Washington, 695 F.3d at 643.

       Whether conduct is objectively cruel and unusual is
better considered with sensitivity to “evolving standards of
decency.” Graham v. Florida, 560 U.S. 48, 58 (2010)
(quoting Estelle, 429 U.S. at 102). Ricks posits that the

6
  Indeed, Congress recently amended the Prison Litigation
Reform Act (“PLRA”) to add to its physical injury
requirement an avenue for recovery for emotional damages
for sexual abuse, perhaps acknowledging that sexual abuse
may not result in physical injury. See Violence Against
Women Reauthorization Act, Pub. L. No. 113-12, § 1101,
127 Stat. 54, 134 (Jan. 3, 2013), codified at 42 U.S.C. §
1997e (amending the section imposing the physical injury
requirement to insert “or the commission of a sexual act”).




                             15
current standard vis-à-vis sexualized touching in prison
contexts is “zero tolerance.” Opening Br. at 15. We are
aware that societal norms surrounding unwanted sexual
attention are changing rapidly, and we are mindful that
behavior that may not have warranted damages in the past
may so warrant today. We nonetheless are 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.

       When considering contemporary standards of decency,
we begin by reviewing “objective indicia of consensus, as
expressed in particular by the enactments of legislatures that
have addressed the question.” Roper v. Simmons, 543 U.S.
551, 564 (2005). We also examine the “consistency of the
direction of change.” Atkins v. Virginia, 536 U.S. 304, 315
(2002).

        In recent years, both the federal government and all
but two of the states have passed legislation outlawing sexual
activity between guards and inmates. See Crawford, 796 F.3d
at 259–60 nn. 5–6 (collecting state statutes). As we elaborate
below, these enactments reflect a societal standard that
conduct falling outside the definition for “rape” nonetheless is
taken seriously and compensable by damages at law. They do
not, however, compel a finding that all inappropriate touching
is per se unconstitutional.

       The Prison Rape Elimination Act (“PREA”), passed
unanimously by Congress, explicitly seeks to “establish a
zero tolerance standard for the incidence of prison rape in the
prisons of the United States.” 34 U.S.C. § 30302(1). Rape is
objectively intolerable, cruel, and unusual. But the statute




                              16
defines “rape” so as to overtly encompass severe misconduct.
See id. § 30309(9) (defining “rape” as “the carnal knowledge,
oral sodomy, sexual assault with an object, or sexual fondling
of a person, forcibly or against that person’s will”).

        Similarly, the Prison Litigation Reform Act (“PLRA”),
intended to address an overwhelming number of prisoner-
initiated lawsuits in federal courts, limits recovery for mental
and emotional injuries unless a litigant can show “physical
injury or the commission of a sexual act.” 42 U.S.C. §
1997(e). And “sexual act” as defined explicitly excludes
touching that is unintentional or “through the clothing.” See
18 U.S.C. § 2246(2). We therefore do not read the PREA and
the PLRA as evincing Congressional intent to create a zero-
tolerance standard for minor sexual touching.

       Nor do similar state enactments criminalizing sexual
contact between inmates and prison officials envisage a zero
tolerance standard. For instance, Pennsylvania, where SCI
Graterford is located, criminalizes guard-inmate rape, sexual
assault, and “indecent contact.” Indecent contact, the least
serious of the defined offenses, is “[a]ny touching of the
sexual or other intimate parts of the person for the purpose of
arousing or gratifying sexual desire, in any person.” 18 Pa.
Cons. Stat. §§ 3101; 3124.2. Thus, while the “consistency of
the direction of change” towards outlawing such contact
assures us that our society no longer accepts sexual abuse,
that change does not oblige us to constitutionalize “every
malevolent touch.”

       As this inquiry is necessarily contextual, fact-specific,
and to be conducted in the first instance by the District Court,
we decline to craft a mechanical factors test for when sexual




                              17
contact is objectively, sufficiently serious. 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.

      2. Application

       We now consider Ricks’ claims against Officer Keil
and Lt. Shover.

              a. Sexual Abuse Claim Against Officer Keil

       We are wary of setting a constitutional floor based on
the fact patterns in our sister Circuits’ Eighth Amendment
sexual abuse cases. Many of those cases were primarily
based on more manifestly violent misconduct. See, e.g.,
Crawford, 796 F.3d at 255 (allegations that prison official
fondled and squeezed inmate’s penis while making
threatening remarks); Giron, 191 F.3d at 1284 (allegations of
rape). Even in Boxer X, where the United States Court of
Appeals for the Eleventh Circuit decided under its own
excessive force precedent that the inmate’s allegations were
de minimis, he had alleged that a prison guard had solicited
his masturbation under threat of reprisal. Boxer X, 437 F.3d
at 1109.




                              18
       Nevertheless, a situation falling below the level of
objective seriousness present in those cases is not per se
excluded from constitutional cognizance. This is a fact-
specific inquiry. Because we cannot definitively say that,
consistent with his complaint, Ricks could not plead other
facts relevant to objective seriousness under the standard we
have articulated, he should be afforded a reasonable
opportunity to cure his complaint by amendment.

       To be sure, Officer Keil’s alleged behavior was, by
any standard, inappropriate and unprofessional. It is not clear
from the face of Ricks’ complaint whether the touching was
incidental to a legitimate pat-down search. Yet, the episode
as alleged appeared to be isolated, momentary, and avoided
by Ricks’ ability to step away from the offending touch.
Absent more specific allegations as to the severity of Keil’s
conduct or the surrounding context, including the need for the
search, we cannot conclude that he plausibly violated Ricks’
right to be free from “cruel and unusual punishments.” By
this, we do not intend to trivialize Ricks’ allegations, nor
suggest that he did not suffer harm. Rather, the Constitution
may require more detail in his pleadings before a federal
court recognizes his claim.

        We have maintained that imprisoned pro se litigants
“often lack the resources and freedom necessary to comply
with the technical rules of modern litigation.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir. 2013). Now
that Ricks is represented ably by pro bono counsel, he should
be given another chance to amend his complaint to allege
facts specifying the incident’s seriousness or severity, as well
as its purpose, and any other facts that would provide context.
Whether his complaint as amended will be sufficient is a




                              19
matter yet to be determined. In particular, the controlling
legal principles we announce today must be applied to the
facts alleged. But Ricks should have the opportunity to
present allegations with due consideration to the law which
controls his case. We will therefore vacate the District
Court’s dismissal of his sexual abuse claim against Keil and
remand so that he can re-plead his claim.

                b. Sexual Abuse Claim Against Lieutenant
       Shover

       Ricks raises an independent sexual abuse claim against
Lt. Shover, whom he claims participated in the alleged abuse
by failing to end it. As pleaded, this claim is insubstantial
because the encounter was so brief that, even viewed in the
light most favorable to Ricks, Shover simply would have had
no opportunity to instruct Keil to stop.

        The incident’s brevity similarly defeats Ricks’ failure-
to-intervene claim against Shover. An officer’s failure to stop
an ongoing constitutional violation violates the Eighth
Amendment when he “had a reasonable opportunity to
intervene and simply refused to do so.” Smith, 293 F.3d at
650–51. According to Ricks, Shover had the opportunity
when Ricks verbally protested to him, and refused to
intervene and punished Ricks for seeking assistance. But
again, the alleged violation was over before Ricks called out
to Shover. And Smith cautions that liability will only attach if
the opportunity to intervene is “realistic and reasonable.” Id.
at 651. While Shover’s alleged reaction is disturbing, it is
better addressed through an excessive force claim, as we
discuss below, than through a failure-to-intervene claim. We
therefore will affirm in part, because the District Court




                               20
properly dismissed this claim, and amendment with respect to
this claim would be futile.



                  B. Excessive Force Claim

       Ricks frames his excessive force claim only against Lt.
Shover. The thrust of his complaint is straightforward: he
alleges that Shover unlawfully used excessive force when he
slammed Ricks into a wall with enough force to cause injury.
He further avers that he sustained injuries to his head, neck,
and back, a black eye, and a “busted” nose and lip. A. 15.
He does not plead any facts respecting medical treatment of
these alleged injuries.

        We have clarified that “the pivotal inquiry in
reviewing an inmate’s § 1983 claim for excessive force is
‘whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause
harm.’” Smith, 293 F.3d at 649 (quoting Brooks v. Kyler, 204
F.3d 102, 106 (3d Cir. 2000)). In conducting this analysis of
the officer’s intent, we consider five factors: “(1) the need for
the application of force; (2) the relationship between the need
and the amount of force that was used; (3) the extent of the
injury inflicted; (4) the extent of the threat to the safety of
staff and inmates, as reasonably perceived by responsible
officials on the basis of facts known to them; and (5) any
efforts made to temper the severity of the forceful response.”
Id. (quoting Brooks, 204 F.3d at 106). The objective
component of the excessive force inquiry is met when “the
inmate’s injury was more than de minimis.” Fuentes v.
Wagner, 206 F.3d 335, 345 (3d Cir. 2000).




                               21
       Here, the District Court correctly cited Smith, but did
not evaluate the facts under those factors. Ricks avers that a
proper analysis under the factors would lead to the conclusion
that he plausibly alleged an Eighth Amendment violation.
Affording him, as a plaintiff proceeding pro se, the benefit of
any doubt, we agree that his complaint should not have been
dismissed.

        While Ricks’ pleading may not have been detailed
enough for the Court to analyze all of the factors, certainly
the allegations of his being “slammed” and the injuries caused
suggest a use of force that was out of proportion to the
relative calm of the situation. With further pleading or
discovery, the need for the use of force (like the penological
purpose or state of mind), threat to safety, and extent of
injuries can be further developed. But, viewing the sparse
record and our responsibility to construe Ricks’ complaint
liberally, we cannot conclude that he has failed to state a
plausible claim for relief.7

       While we express no view as to the merits of Ricks’
claim against Shover, we conclude that the District Court
erred by dismissing his complaint for failure to state a claim.
Accordingly, we will reverse the District Court’s order with
respect to his excessive force claim, and remand for further
proceedings.




7
 We also note that at oral argument, Defendants’ counsel all
but conceded the point. See Oral Argument at 31:53, Ricks v.
Shover (No. 16-2939) (3d Cir. Feb. 9, 2018).




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                    III. CONCLUSION

       The District Court based its dismissal of Ricks’ sexual
abuse claim against Officer Keil on an incomplete
understanding of the law that we clarify today. And although
it properly dismissed Ricks’ independent sexual abuse claim
against Shover, the Court prematurely dismissed his
excessive force claim against him. Therefore, we will vacate
the Court’s order insofar as it dismissed the sexual abuse
claim against Officer Keil, affirm the portion of the order
dismissing the sexual abuse claim against Shover, reverse the
portion of the order dismissing the excessive force claim
against Shover, and remand for further proceedings consistent
with this Opinion.




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