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Patrick Pantusco v. Robert Sorrell

May 31, 2011

PATRICK PANTUSCO PLAINTIFF,
v.
ROBERT SORRELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

This matter arises out of the alleged sexual assault of an inmate at East Jersey State Prison in Rahway, New Jersey. Plaintiff Patrick Pantusco alleges that, on June 29, 2009, at approximately 6:45am, Senior Corrections Officer Robert Sorrell groped his genitals during a routine pat frisk. On July 16, 2009, Mr. Pantusco filed a Civil Rights Complaint against Sco. Sorrell, Sergeant Mountcastle-Thomas, and Senior Corrections Officer Swann alleging that he was sexually assaulted in violation of 42 U.S.C. § 1983 ("Section 1983"). On August 3, 2009, Mr. Pantusco filed an Amended Complaint adding Sergeant Dircks, Lieutenant Popowich and Donald Mee as defendants and claiming that the sexual assault constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution and violated the equal protection clause of the Fourteenth Amendment. Mr. Pantusco also claims that Defendants retaliated against him for reporting the sexual assault by filing false reports regarding the assault and threatening further assault.

Defendants now move for Summary Judgment against all of Mr. Pantusco's claims. For the reasons set forth below, Defendants' motion is granted. Mr. Pantusco's equal protection claim fails because he does not allege that he was treated differently than other inmates or the subject of discrimination. His Eighth Amendment claim fails because a single instance of groping does not amount to cruel and unusual punishment. Finally, while the record indicates that certain defendants did, in fact, file false reports in connection with an investigation into the alleged sexual assault, Mr. Pantusco's retaliation claim fails because there is no evidence of adverse taken against him, and mere threats of such action are insufficient to state such a claim.

I. BACKGROUND

A. The Pat-Frisk

The Amended Complaint states that, on June 29, 2009, at approximately 6:45am, while Mr. Pantusco was reporting to his work assignment in the mess hall of East Jersey State Prison, Sco. Sorrell stopped him in the Tie-Too-the prison's main corridor-to conduct a routine pat frisk. Mr. Pantusco alleges that during the pat frisk, Sco. Sorrell grabbed and squeezed his penis through his pant leg, leaned into his back and said, "Now you can go." (Amend. Compl. ¶ 10.)

Mr. Pantusco further alleges that he immediately reported the incident to Sgt. Mountcastle-Thomas, who replied that he should "write it up." (Id. ¶ 11.) As Mr. Pantusco continued on his way to the mess hall, Sco. Swann called him back into the Tie-Too and allegedly yelled at him for reporting the incident to Sgt. Mountcastle-Thomas.

The video evidence submitted by Defendants largely confirms Mr. Pantusco's account. In footage taken by the Tie-Too West Camera, on June 29, 2009, at approximately 6:32am, Mr. Pantusco is seen walking through the metal detector in the Tie-Too and immediately up to an officer, presumably Sgt. Mountcastle-Thomas. Another officer joins them, presumably Sco. Swann. On the same date and time, the Tie-Too East Camera shows Mr. Pantusco being pat frisked, presumably by Sco. Sorrell. It is difficult to discern the exact nature of the frisk because it occurs nearly out of view of the East Camera (and completely out of view of the West Camera). Sco. Sorrell appears to touch Mr. Pantusco's groin area; although the nature of the touch remains unclear.

As with the West Camera, the East Camera shows Mr. Pantusco walk through the metal detector and up to Sgt. Mountcastle-Thomas. When speaking to her, he excitedly points toward the opposite end of the Tie Too where he was frisked demonstratively grabbing at his groin area. At that point, Sco. Swann joins the discussion and Mr. Pantusco grabs at his groin a second time. After a few more seconds, Mr. Pantusco leaves the Tie Too area, presumably to report to his work detail in the mess hall.

B. The Strip Search

Approximately an hour and a half later, according to the Amended Complaint, Mr. Pantusco completed his work assignment in the mess hall and began making his way back to his cell. As Mr. Pantusco was walking back through the Tie-Too, Sco. Sorrell allegedly stopped him and ordered that he dump the cup of coffee and orange juice that he was carrying. Mr. Pantusco alleges that as he was dumping the coffee and juice, Sco. Sorrell "walked to the far wall of the Tie-Too[,] out of view of the Tie-Too security camera[,] and said, "'I'm really gonna frisk you now.'" (Id. ¶ 15.) At that point, Mr. Pantusco claims that he was afraid that Sco. Sorrell was going to sexually assault him again, and, as a result, "began to walk toward the Tie-Too" doorway, making sure to stay in the center of the Tie-Too and in view of the security cameras. (Id. ¶ 16.) Sco. Sorrell then pointed at Mr. Pantusco and ordered him to stop for a pat frisk, but, fearing further sexual assault, Mr. Pantusco continued to walk toward the doorway.

As he reached the doorway, he saw Sergeant Cvasa standing approximately ten yards away and attempted to tell him that Sco. Sorrell was harassing him. In response, Sgt. Cvasa ordered three officers to "Strip Him." (Id. ¶ 18.) Mr. Pantusco alleges that he was then escorted by three officers to the Tie-Too conference room and given a full strip search.

The video evidence also confirms this account. At approximately 8:10am, the West Camera shows Mr. Pantusco walking through the metal detector in the Tie Too. As he clears the metal detector, an officer, presumably Sco. Sorrell, speaks with Mr. Pantusco. Mr. Pantusco goes back around the metal detector and pours liquid out of a cup into a garbage can. Sco. Sorrell then walks out of view of the West Camera while Mr. Pantusco walks back through the metal detector and similarly out of view.

A few seconds later, the West Camera shows several officers look in the direction where Mr. Pantusco and Sco. Sorrell had just gone. Several seconds after that, Mr. Pantusco is escorted by an officer to the Tie-Too conference room. Two officers follow and the door is shut. A fourth officer enters the conference room approximately one minute later.

The East Camera also shows Mr. Pantusco walk through the metal detector in the TieToo, receive instructions from Sco. Sorrell, and go back to dump liquid into a garbage can. After Mr. Pantusco walks back through the metal detector to leave the Tie-Too, Sco. Sorrell motions to Mr. Pantusco, who ignores him and keeps walking. Sco. Sorrell and several other officers follow Mr. Pantusco and escort him back to the Tie Too conference room.

C. The Disciplinary Charges

During Mr. Pantusco's strip search, Sco. Sorrell left the Tie Too area to file a disciplinary report against Mr. Pantusco for refusing to submit to a search. He filed the report that same day. (Certification of Jennifer S. Hsia, dated February 3, 2011 ("Hsia Cert."), Ex. A.)

According to Mr. Pantusco, at some point during the strip search, Sgt. Dircks entered the Tie-Too conference room and asked why he had refused to be frisked by Sco. Sorrell. Mr. Pantusco claims he told Sgt. Dircks about the sexual assault, who responded that he should write a formal complaint after returning his housing wing. Upon returning to his wing, Mr. Pantusco alleges that he told Sco. Rivera that he had been sexually assaulted by Sco. Sorrell and that Sco. Rivera provided him with complaint forms to fill out. As he began filling out the forms, Sgt. ...


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