U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

Prisoner's Ejaculation Lawsuit Can Proceed: Pa. Dist. Court

A prisoner ejaculation lawsuit? What's this all about?

Prisons can be funny places. Not funny "ha-ha," but funny "what planet are you living on?" For example, sex occurs in prisons -- that's a fact -- but prisons have been routinely against providing condoms in order to limit the transmission of STDs between prisoners. Why? The outmoded logic that, because sex between prisoners isn't permitted, providing condoms would be an incentive to have sex. Recall the previous sentence, however: It's already happening. The philosophy of harm reduction, rather than making public policy based on what people should or shouldn't be doing, is predicated on making policy based on what people actually do.

Against this backdrop, we come to the U.S. District Court for the Middle District of Pennsylvania, where an Article III judge rejected a magistrate's recommendation that a prisoner's Eighth Amendment claim be dismissed.

Sounds Painful

After he had prostate surgery, inmate Shemtov Michtavi developed a condition called "retrograde ejaculation." It causes semen to enter the bladder instead of the penis during orgasm. It's problematic because it can cause infertility.

Michtavi requested that he receive surgery to correct the condition. He was denied, though, on the grounds that "treatment of sexual dysfunction is not a medical necessity" and "medical providers are not to talk to inmates about ejaculation, since it is a prohibited sexual act."

Basically, "stop ejaculating because you're not supposed to be doing it, anyway." Like I said, a prison can be a funny place.

Deliberate Indifference

The question for Judge John E. Jones III was whether summary judgment was appropriate for the former warden and former health services administrator. In a civil rights case such as this one, there's no respondeat superior liability: A high-ranking official like a warden or a supervisor will be liable only if he directed the violation to occur, or knew about the violation but did nothing to stop it. Jones believed that, because Michtavi was denied the medical procedure due to a prison policy, there were questions of fact surrounding whether the warden and/or the health services administrator were involved in the decision.

Jones also said that, even though the prison has a strict "no ejaculation" policy, Michtavi's condition -- if left untreated -- could create a serious medical problem. "It is well established that prisoners have a fundamental right to post-incarceration procreation," Jones observed in a footnote. (Clearly, there's no ejaculation restriction outside prison.)

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