14-969-cv

United States Court of Appeals

For the Second Circuit
JAMES CRAWFORD and THADDEUS CORLEY,
Plaintiffs-Appellants,

v.
ANDREW CUOMO, as Governor of the State of New York, in his official capacity; BRIAN FISCHER,
Commissioner of Department of Corrections and Community Supervision, in his official capacity;
Superintendent WILLIAM P. BROWN, in his personal and official capacities; Superintendent WILLIAM
LARKIN, in his official capacity; Corrections Officer SIMON PRINDLE; and JOHN DOE
CORRECTIONS OFFICERS 1-8,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

LAW OFFICE OF
ZACHARY MARGULIS-OHNUMA
Attorney for Plaintiffs-Appellants
260 Madison Avenue, 17th Fl.
New York, NY 10016
(212) 685-0999
Sharlene Morris, Esq, on the brief

LAW OFFICES OF
ADAM PERLMUTTER, P.C.
Attorney for Plaintiffs-Appellants
260 Madison Avenue, 17th Fl.
New York, NY 10016
(212) 679-1990
Daniel A. McGuinness, Esq. on the brief

Table of Contents
Table of Authorities........................................................................................ii
Argument ........................................................................................................ 1
I. Prindle's Molestation of Appellants Violated
the Eighth Amendment Proscription Against
Cruel and Unusual Punishment............................................................. 1
A. Prindle's Physical Actions Far Exceeded The
Bounds of Acceptable Conduct....................................................... 1
B. Prindle's Sexual Abuse of Corley and
Crawford is Repugnant to the
Consciousness of Mankind as Understood
by Contemporary Standards of Decency. ........................................ 3
II. Qualified Immunity does not Shield Warden
Brown and Officer Prindle Because the Right
to Be Free from Any Sexual Abuse in Prison
was Clearly Established by 2011......................................................... 8
Conclusion .................................................................................................... 12
Certificate of Compliance............................................................................. 13

TABLE OF AUTHORITIES
Cases
Atkins v. Virginia, 536 U.S. 304 (2002) ......................................................... 5
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997) ................................ passim
Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003) ...................................... 10
Doe v. Barrell, No. 01-CV-519,
2006 WL 3741825 (D. Conn. Dec. 19, 2006)........................................... 10
Francis v. Coughlin, 891 F.2d 43 (2d Cir. 1989) ........................................... 9
Hall v. Florida, __ U.S. __, 134 S. Ct. 1986 (2014) ...................................... 5
Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013) ............................................. 7
Jermosen v. Smith, 945 F.2d 547 (2d Cir. 1991) .......................................8-11
Lewis v. Fischer, No. 08-CV-3027,
2009 WL 689803 (E.D.N.Y. Mar. 12, 2009) ............................................ 10
Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999) ........................................8-9
Rodriguez v. McClenning,
399 F. Supp. 2d 228 (S.D.N.Y. 2005) ...................................................... 10
Roper v. Simmons, 543 U.S. 551 (2005) ....................................................... 5
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ..................................... 5
Southerland v. City of New York, 680 F.3d 127 (2d Cir. 2011) ..................... 8
Trop v. Dulles, 356 U.S. 86 (1958) ............................................................... 4
Washington v. Hively, 695 F.3d 641 (7th Cir. 2012)...................................... 7
Weems v. United States, 217 U.S. 349 (1910) ............................................... 4
Williams v. Prudden, 67 F. App'x 976 (8th Cir. 2003) ................................ 10
Statutes
42 U.S.C. 15601, et seq ............................................................................6-7
N.Y. Penal Law 130.52 (2014).................................................................... 5

ii

ARGUMENT
I.

Prindle's Molestation of Appellants Violated the Eighth

Amendment Proscription Against Cruel and Unusual
Punishment.
A.

Prindle's Physical Actions Far Exceeded The Bounds of

Acceptable Conduct.

Appellees Response (the "Response") not only disputes whether

Prindle's conduct rises to an Eighth Amendment violation, but, incredibly,
verges on condoning his conduct. The Response argues that Prindle's
groping and fondling of inmates is merely an acceptable, routine part of
prison life:
[T]he conduct alleged in this case took place in the context of a
routine pat frisk . . . In fact, the allegedly improper touching
hereapart from the alleged motivations for itis difficult to
distinguish from the touching that could be expected as part of
any pat frisk. . . However improper the alleged motivations for
the frisks here, the degree of physical contact alleged by each
plaintiff is consistent with the execution of a routine body
search by prison officials charged with the duty to maintain and
assure prison security.
Response at 19-20.
As an initial matter, the conduct at issue did not take place during the
course of a legitimately initiated pat frisk. In both incidents described by
Appellants, the factual circumstances surrounding the encounter make clear
that Prindle initiated a search, not as a routine procedure, but as a pretext to

sexually abuse them. Prindle interrupted Corley's visit to "make sure Mr.
Corley did not have an erection." A9.1 Investigating an inmate's sexual
arousal is neither routine, nor permissible.2 Similarly with Crawford,
Prindle stopped him while walking to initiate the search and fondle him.
A10. Neither search was made as part of routine practice or procedure (e.g.,
moving from one secure area to another). Prindle's humiliating sexual
comments to Appellants further demonstrate that the purpose of the
encounter was divorced from any legitimate purpose.
Even aside from the verbal sexual harassment and threats, however,
the degree of physical conduct itself undeniably exceeded the bounds of
permissible conduct. Appellees argument to the contrary ignores the New
York State Department of Corrections Directive cited by Appellants. See
Appellants' Brief at 16. That directive unequivocally commands "staff must
not lift or otherwise manipulate the genitalia during a pat frisk." See N.Y.
Department of Corrections Directive #4910, Control of and Search for
Contraband at 3 (May 14, 2014). Thus, while Appellees inexplicably
1

Numbers preceded by "A" refer to the joint appendix.

The Reponse at 21 notes, "the contact here is over-the-clothes contact in
the course of pat frisks whose justification plaintiffs have not challenged."
To the extent that the factual recitation did not clearly inform Appellees that
Prindle's pat-frisk was unjustified, Appellants welcome a sur-reply on the
issue of whether checking for an erection is a valid justification for a patfrisk.
2

contend that fondling of inmates is necessary for security, the New York
Department of Corrections disagrees. Unable or unwilling to address this
directive, Appellees' Response ignores it entirely.
B.

Prindle's Sexual Abuse of Corley and Crawford is

Repugnant to the Consciousness of Mankind as Understood
by Contemporary Standards of Decency.

Alternatively, Appellees argue that, even though the conduct is

"unacceptable", it does not qualify as an Eighth Amendment violation
because it is not "objectively, sufficiently serious." Response at 24. For this
proposition, the Response principally relies on Boddie v. Schnieder, 105
F.3d 857, 861 (2d Cir. 1997), which held that sexual abuse may be
reprehensible, yet still fail to "involve a harm of federal proportions." The
response further cites a host of district court cases that dutifully applied
Boddie. Response at 17-18.
Appellants and Amici Curiae demonstrate that contemporary
standards of decency have evolved in the 17 years following Boddie.
Appellants Brief at 18-24; Amicus Brief at 11-15. The Response asks the
Court to ignore this progression, and cast aside societal indicators of change
as irrelevant. The Response at 22 states, "Sexual abuse by prison officials
was as reprehensible in 1998 as it is now." In a limited sense that statement
may be truethe harm done to the victims was no less then, than it is now.
3

Our collective understanding of that harm has changed, however, and

resulted in a progressive shift in contemporary standards of decency.
The Supreme Court has noted proper application of the Eighth
Amendment must take into account the progress of society:
The basic concept underlying the Eighth Amendment is nothing
less than the dignity of man. . . The words of the [Eighth]
Amendment are not precise, and [ ] their scope is not static.
The Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society.
Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (citations omitted). See also
Weems v. United States, 217 U.S. 349, 378 (1910) (holding that the Eighth
Amendment "is not fastened to the obsolete, but may acquire meaning as
public opinion becomes enlightened by a humane justice.")
Despite the assertions by Appellees, in the 17 years following Boddie,
society has matured towards a more enlightened view of the effects of sexual
abuse. The national standards of decency on this issue are continuing to
evolve, reflecting a more humane view that illustrates a clear trajectory
towards protection of victims and prevention of abuse, which should be
reflected in the Court's interpretation of the Amendment:
The Eighth Amendment's protection of dignity reflects the
Nation we have been, the Nation we are, and the Nation we
aspire to be. This is to affirm that the Nation's constant,
unyielding purpose must be to transmit the Constitution so that
its precepts and guarantees retain their meaning and force.
4

Hall v. Florida, __ U.S. __, 134 S. Ct. 1986, 1992 (2014).

Legislative action is the best indicator of contemporary values. See
Amicus Brief at 12-13 citing Roper v. Simmons, 543 U.S. 551, 564 (2005);
Atkins v. Virginia, 536 U.S. 304, 311-12 (2002). The Response does little to
address the overwhelming tide of legislative action reflecting a national
evolution on this issue. The Response fails to respond to New York's Sexual
Assault Reform Act, which criminalized "Forcible Touching", the precise
conduct at issue in this matter, and went into effect in 2000, approximately
three years after Boddie. See Amicus Brief at 14 (discussing passage of N.Y.
Penal Law 130.52).
Instead, when confronted with a critical mass of states passing similar
legislation, the Response suggests that these new laws simply "reflect
changes in views about which policy approaches will most effectively
prevent it, and which remedies other than constitutional litigation are
necessary and appropriate to address the problem of rape and sexual abuse in
prison." Response at 22. Appellees novel interpretations of legislative
intent does little to advance Appellees' argument. All of the "policy
approaches" taken by the states cited are increased criminalization of sexual
abuse, reflecting a growing intolerance of that conduct as described by
Appellants and Amicus Curiae. Additionally, the states employed the
5

remedies available to them. It is not within a state legislature's purview to

dictate the contours of the Eighth Amendment. It is, however, firmly within
their power to announce the values of their community through legislation,
thereby informing the Court's understanding, which they have done.
The Response is also dismissive of national legislation on this issue.
Specifically, the Response states that the Prison Rape Elimination Act of
2003, 42 U.S.C. 15601, et seq. ("PREA") did not intend to "codify a new
understanding that prison rape was unacceptable." Response at 22.
Speculation as to the intentions of Congress is unnecessary; the statute
speaks for itself. PREA stands as a watershed moment in the national
understanding of inmate sexual abuse. Importantly, Congress made a
number of crucial findings, including, that prison rape was largely
unreported, and results in "severe physical and psychological effects" (42
U.S.C. 15601[6]); prison rape endangers public safety by making the
victims of such crimes more likely to attack others (42 U.S.C. 15601[8]);
"Members of the public and government officials are largely unaware of the
epidemic character of prison rape and the day-to-day horror experienced by
victimized inmates" (42 U.S.C. 15601[12]); and the "high incidence of
prison rape undermines the effectiveness and efficiency of the United States
Government expenditures" by undoing the work of treatment, increasing
6

health care costs, increasing the risks of recidivism and violence, and
increasing interracial tension within prisons (42 U.S.C. 15601[14]). The
Response also argues that PREA merely set up a commission to investigate
the extent of the problem and develop policy responses to it. Response at
22. In reality, PREA has led to concrete changes in federal law. As a direct
result of PREA, federal regulations now prohibit the type conduct that
occurred in this case. See Amicus Brief at 13-14.
Courts have started to embrace the national maturation on this issue.
In Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012) the Court
addressed a nearly identical fact pattern, and found the officers committed
an Eighth Amendment violation. The Response attempts to distinguish
Washington from the present case, stating that in Washington, "jail policy
forbade any touching during the search, and the search itself was
unjustified." Response at 21. As stated above, prison policy in this case
prohibited Prindle's fondling and squeezing of Crawford and Corley's
genitalia, and the facts illustrate that the searches were unjustifiable and
pretextual means to harass and sexually abuse the Appellants. As such, this
Court should continue to adhere to Washington, as in Hogan v. Fisher, 738
F.3d 509 (2d Cir. 2013), and find that Prindle's actions were repugnant to the

conscience of mankind, thereby constituting an Eighth Amendment

violation.
II.

Qualified Immunity does not Shield Warden Brown and Officer

Prindle Because the Right to Be Free from Any Sexual Abuse in
Prison was Clearly Established by 2011.
Defendants argue in the alternative that defendants Brown and Prindle

are entitled to qualified immunity because it was objectively reasonable for

them to believe that the Eighth Amendment was not implicated by the
conduct alleged in the complaint. Response at 26. They rely on
Southerland v. City of New York, 680 F.3d 127, 141 (2d Cir. 2011) for the
proposition that no action lies so long as it was objectively reasonable for
them to believe their acts did not violate clearly established constitutional
rights. Id. Indeed, defendants point out, qualified immunity provides a
complete defense if officers of reasonable competence could disagree on
the legality of the action at issue in its particular factual context. Id.
This Court considers three factors in determining whether a particular
legal principle is clearly established for purposes of qualified immunity:
first, whether the right was defined with reasonable specificity; second,
whether prior decisions support its existence; and third whether under
preexisting law a defendant official would have understood his actions were

unlawful. See Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), citing
Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989).
As to how specifically the right at issue must be defined, this Court
has explained that a plaintiff must only show that
[a]t the time of violation, the contours of the allegedly violated
right were sufficiently clear that a reasonable official would
understand that what he [was] doing violate[d] that right.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
3039, 97 L.Ed.2d 523 (1987). This is not to say that an official
action is protected by qualified immunity unless the very action
in question has previously been held unlawful. Id. Rather, the
unlawfulness must be apparent in the light of pre-existing
law. Id.
Powell v. Schriver, 175 F.3d 107, 114 (2d Cir. 1999) (denying qualified
immunity where plaintiff alleged defendants were deliberately indifferent to
inmates safety by revealing she was transsexual).
Here the right to be free from sexual abuse in prison was clearly
established at the time Prindle fondled and groped Mr. Crawford and Mr.
Corley in 2011. The complaint explicitly and clearly alleges that Prindle
was motivated in his conduct by a desire to gratify himself sexually. A17 at
105-106. Since the founding of the Republic, no corrections official
could reasonably suggest that abuse for the purpose of an officers sexual
gratification served a justifiable penological purpose. Even by 1997, the
Boddie Court acknowledged that sexual abuse by a corrections officer may
9

constitute serious harm inflicted by an officer[.] Supra at 861. As stated

above, in the intervening 14 years, public condemnation of prison sexual and
understanding of its deleterious effects reached an overwhelming national
consensus.
Because of this consensus, there was no question that sex abuse in
prison violated the Constitution even if it did not leave a mark or injury.
Many cases decided before the conduct alleged here found that intentionally
groping an inmate during a search stated a claim.3 Boddie itself made clear
3

See Brief of Amici Curiae at 20, f.n. 6, citing, inter alia, Lewis v. Fischer,
No. 08-CV-3027, 2009 WL 689803, at *1-2, 4-6 (E.D.N.Y. Mar. 12, 2009)
(holding that allegations that a corrections officer in the course of a pat-frisk
put[] his hand into [plaintiff's] pants and fondl[ed] his penis and
squeeze[ed] his testicles stated a claim); Doe v. Barrell, No. 3:01-CV-519,
2006 WL 3741825 at *1, 10 (D. Conn. Dec. 19, 2006) (holding that
allegations that a prison doctor forc[ed] plaintiff into a chair, pulling down
his pants and touching his genitals stated a claim); Rodriguez v.
McClenning, 399 F. Supp. 2d 228, 232, 237-38 (S.D.N.Y. 2005) (holding
that allegations that a corrections officer conducted the pat-frisk in an
inappropriate manner that included caressing [plaintiff's] chest and
repeatedly groping his genitals and buttocks stated a claim); Calhoun v.
DeTella, 319 F.3d 936, 938-40 (7th Cir. 2003) (holding that allegations that
corrections officers forced plaintiffs to perform provocative acts while
they made sexual comments during a strip search stated a claim despite the
lack of penetration or physical injury); Williams v. Prudden, 67 F. App'x
976, 977 (8th Cir. 2003) (unpublished opinion) (holding that allegations that
a corrections officer "ground his pelvis against [plaintiff], grabbed her
breast" and verbally harassed plaintiff stated a claim notwithstanding lack of
alleged penetration or physical injury); Schwenk v. Hartford, 204 F.3d 1187,
1196-98 (9th Cir. 2000) (noting the Ninth Circuit's longstanding rule that
"no lasting physical injury is necessary to state a cause of action" and
upholding a claim based on allegations that a corrections officer requested
10

that sexual abuse of inmates could constitute cruel and unusual punishment
in violation of the Eighth Amendment. The evolving national standards of
decency, including New York's criminalization of "Forcible Touching"
(supra; Amicus at 14), and PREA, further put Prindle on notice as to the
illegality and repugnancy of his actions.
Finally, as to Jermosens third prong, it is inconceivable that Prindle
or any corrections officer, reasonable or not could have thought he was
acting lawfully when he was gratifying himself by fondling the inmates
genitals. Similarly, the complaints received by Brown were so clear and so
repetitive that Appellants can show Brown knew exactly what Prindle was
doing and took no action to stop it. Accordingly, neither Brown nor Prindle
is shielded by the doctrine of qualified immunity and the district courts
decision should be reversed.

oral sex, groped plaintiffs buttocks and pressed his penis into plaintiffs
clothed buttocks without penetration).
11

CONCLUSION
For the reasons stated above, the order of the lower court should be
REVERSED and Appellees' motion to dismiss should be denied.
Dated:

New York, NY
November 25, 2014
Law Office of Zachary Margulis-Ohnuma

Is/

By:

Zachary Margulis-Ohnuma
260 Madison Avenue, 17th Fl.
New York, NY 10016
(212) 685-0999
Law Offices of Adam D. Perlmutter, P.C.

By:

260 Madison Avenue, 17th Fl.

New York, NY 10016
(212) 679-1990
A ttorneys for Appellants James Crawford &
Thaddeus Corley

12

CERTIFICATE OF COMPLIANCE
I hereby cettify that this brief complies with the requirements of Fed.
R. App. P. 32(a)(5) and (6) because it has been prepared in a 14-point
proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 2,606 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word .

.~

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