Jоhnson 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.
No. 13-1662.
United States Court of Appeals, Third Circuit.
Sept. 8, 2014.
Submitted Pursuant to Third Circuit LAR 34.1(a) Sept. 2, 2014.
Laura S. Irwin, Esq., Office of United States Attorney, Pittsburgh, PA, for Robert Werlinger, Ms. Philips, Ms. Coho, S. Adams, S. Burke, Mr. Dignan and J. Davenport.
Before: CHAGARES, KRAUSE and SLOVITER, Circuit Judges.
PER CURIAM.
Johnson Obiegbu, proceeding pro se, appeals from the District Court’s order dismissing his complaint pursuant to
I.
Obiegbu, a federal prisoner, filed an action pursuant to Bivens v. Six Unknown Nаmed Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 recеived 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 thе retaliation resulted in the loss of his appellate rights. A Magistrate Judge recommended dis-
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 wellpleaded componеnts 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, 129 S.Ct. 1937.
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 pоtentially 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 harassmеnt and 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 mediсal 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 cоurts 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 clаimed 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 mеdical and psychological staff, who found that any injury he
Upon review, we find that Obiegbu did successfully state а 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 сomplaint. A plaintiff in a retaliation case must prove that: (1) he engaged in constitutionally protected 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 rеquisite 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 аssault 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 rеtaliation.
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 pеrmitting it to be amended. Dismissal of a pro se plaintiff’s complaint without leave to amend is proper under
III.
For the foregoing reasons, we will affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.3