Quarterly Newsletter
December 2017 - February 2018
FOREWORD
The Project on Addressing Prison Rape works with policymakers, correctional administrators, and the public to address sexual abuse in custodial settings. This newsletter highlights recent cases, rulings, scholarly articles, and upcoming events related to sexual violence in custody. The Project searched for all cases involving inmate sexual abuse, LGBTI inmates, and cases directly citing the Prison Rape Elimination Act (PREA). The Project separated cases that: 1) discuss sexual assault; 2) cases that address PREA; and 3) cases that highlight the sexual abuse of LGBTI inmates. Of the thirty cases found, forty percent addressed sexual assault in the case, while thirty-three percent mentioned PREA. Thirteen percent of the cases discussed LGBTQ, and sixteen percent provided no discussion of the sexual assault and/or dismissed the cases for failure to exhaust administrative remedies. When providing case summaries, the language in the summary comes directly from the language of the case. Finally, while the cases may contain multiple counts against defendants, this newsletter only discusses those counts related to PREA and/ or sexual assault.
Sexual Assault
Jones v. Higgins, No. 16-11666-LTS, 2018 U.S. Dist. LEXIS 25854 (D. Mass. Feb. 16, 2018). Plaintiff brought a 42 U.S.C. § 1983 claim for violation of his Eighth Amendment rights. Plaintiff, a mentally ill inmate suffering from PTSD, alleged that Defendant correction officer sexually harassed him. Plaintiff claimed that he reported sexual harassment to clinicians. Plaintiff claimed that the sexual harassment continued from June 2015 until October 2015, despite Defendants having knowledge of the allegations. Plaintiff alleged that Defendants failed to protect him. Defendants filed a motion to dismiss alleging that the Plaintiff made two separate false PREA allegations, which the Defendants investigated and closed. The court found that the Defendants were aware of the substantial risk of serious harm to the Plaintiff and ignored the threat. The court dismissed the Defendant's motion to dismiss and gave Defendants leave to answer Plaintiff's amended complaint.
Allemandi v. Hyde, No. CV 17-1280-LPS, 2018 WL 716984 (D. Del. Feb. 5, 2018). Plaintiff brought a 42 U.S.C. § 1983 claim alleging Fifth and Eighth Amendment violations. Plaintiff, a transgender female, claimed that her mandatory participation in the Transitions Sex Offenders Program and the lack of confidentiality of her convictions encouraged other inmates to rape, physically abuse, and mentally abuse her. Plaintiff also alleged that she lost good time credits as a punishment for refusing to participate in the program or refusing to admit uncharged offenses. The court dismissed the Plaintiff’s Eighth Amendment claims, as the Plaintiff’s allegations did not rise to constitutional violations. The court also dismissed the Plaintiff’s Fifth Amendment claims, as the Supreme Court held that no Fifth Amendment violation occurs when a prison's imposition of sanctions is based on a prisoner's refusal to participate in a sex offender treatment program that required an admission of guilt.
Poore v. Glanz, No. 16-5164, 2018 WL 707403 (10th Cir. Feb. 5, 2018). In 2010, the district court found that the Tulsa County Sheriff violated Plaintiff’s (a seventeen-year-old juvenile inmate) Eighth Amendment rights. Plaintiff alleged that the jail provided inadequate housing, staffing, and supervision for the area of the facility where Defendants housed juvenile female inmates. Plaintiff further claimed that Defendant officer sexually assaulted her on multiple occasions. The court awarded the Plaintiff $25,000 in damages. On appeal, the Defendant argued that the Plaintiff’s Eighth Amendment claims failed because Plaintiff established only a generalized risk of sexual assault rather than identifying the threat that the Defendant employee posed to her. The Court of Appeals affirmed the District Court’s decision, finding the Defendant Sheriff knew that the policies he implemented with respect to juvenile female inmates created an excessive risk of sexual assault and that he was deliberately indifferent to that risk.
Abrams v. Erfe, No. CV 17- 1570-CSH, 2018 WL 69174 (D. Conn. Feb. 2, 2018). Plaintiff brought a 42 U.S.C. § 1983 alleging violations of his First and Eighth Amendment rights. Plaintiff alleged female Defendant officer sexually abused and sexually harassed him on several occasions. Plaintiff claimed that Defendant watched him in his cell during rounds, watched him urinate and shower, and posed provocatively in front of the Plaintiff. The court found that Defendant's action of viewing Plaintiff in his cell and posing provocatively did not rise to the level of sexual abuse. The court also dismissed the Plaintiff’s claim for retaliation for failure to assert a First Amendment retaliation claim against the Defendant.
Brown v. Hood, No. 3:17-cv-50-DPJFKB 2018 WL 651370 (S.D. Miss. Jan. 31, 2018). Plaintiff brought a 42 U.S.C. § 1983 claim alleging a violation of his rights under the First, Fourth, Eighth, and Fourteenth Amendments and Mississippi Tort Claims Act (“MTCA”). Plaintiff alleged that Defendant correctional officers sexually assaulted him by forcing the Plaintiff to strip, applying handcuffs, and “inserting [an object] into [his] body.” Plaintiff alleged the Defendant placed him in a holding cell for three-and-a-half days in just his boxers immediately following the assault and that the Defendant refused repeated requests for medical treatment related to the sexual assault. Following Plaintiff's release from isolation, the Defendant provided the Plaintiff medical attention. Plaintiff claimed that following submitting a PREA report, Defendants placed him in a tower with “high risk offenders.” The court found that Plaintiff had not provided facts explaining how the delay in treatment or any other wrongdoing caused substantial harm and dismissed the Plaintiff’s claims, except for his First Amendment retaliation claim.
Bucano v. Austin, No. 15-67Erie, 2018 U.S. Dist. LEXIS 10652 (W.D. Penn. Jan 22, 2018). Plaintiff filed suit under 42 U.S.C. 1983 alleging a violation of her Eighth Amendment right. Plaintiff claimed that Defendant sexual assaulted and sexually abused her. Plaintiff further alleged that Defendant correction officers failed to act during the time the sexual abuse occurred, which Plaintiff claims constituted a deliberate indifference to her safety. Defendants filed a motion for summary judgment. The court granted the motion for count II (inaction by Defendant officers constituted deliberate indifference) and count IV (Defendants failed to follow PREA policies in regards to cross gender supervision). However, the court allowed the remaining counts to proceed (failure to investigate and deliberate indifference to medical needs) and denied the Defendants qualified immunity.
Stokes v. City of Chi., No. 16-C-11298, 2018 U.S. Dist. LEXIS 9242 (N.D. Ill. Jan. 22, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights. Plaintiff claimed that Defendant arrested him and took him to lock-up, where the Plaintiff told the arresting officers he required medication related to his seizures. Plaintiff claimed that Defendant officers took him to the hospital where the hospital gave him medicine and brought him back to the jail, where the officers placed him in a cell with another inmate. Plaintiff had asked the officers to place him in an observation cell in case he had a seizure, but they did not. Further, Plaintiff alleged that he had another seizure while in the cell with the other inmate and lost consciousness. When the Plaintiff regained consciousness, his underwear was around his ankles and his face was wet. Plaintiff further alleged that he reported to the Defendants that his cellmate sexually assaulted him, and the officers again took him to the hospital where was treated. The court denied the Defendant’s motion to dismiss and allowed the Plaintiff’s claims to proceed.
Lewis v. Stephens, No. 17-1285, 2018 U.S. App. LEXIS 1476 (7th Cir. Jan. 22, 2018). Plaintiff brought a 42 U.S.C § 1983 claim for violation of his Eighth Amendment rights. Plaintiff alleged that Defendant correction officers sexually assaulted him during a staff assisted strip search. Plaintiff also claimed that Defendant inserted his fingers in Plaintiff’s anus during the search instead of allowing Plaintiff to squat and cough. The court found that Defendant did not violate Plaintiff’s Eighth Amendment right by conducting a staff assisted strip search and dismissed the Plaintiff’s claims.
Jackson v. Acuna, No. 16-CV-62090-BLOOM/Valle, 2018 U.S. Dist. LEXIS 9739 (S.D. Fla. Jan. 8, 2018). Plaintiff brought a 42 U.S.C. § 1983 claim alleging violations of his Eighth Amendment rights. Plaintiff alleged that Defendant correction officer sexually assaulted him by touching his buttocks during a search. He further alleged that Defendant forced him to squat and cough multiple times, which he felt was unreasonable. The court found that Defendant did not intentionally touch Plaintiffs buttocks and dismissed the Plaintiff’s claims.
Vazquez v. Cty. Of Kern, No. 1:16-cv-1469-JLT, 2017 U.S. Dist. LEXIS 2017727 (E.D. Cal. Dec. 18, 2017). Plaintiff brought a 42 U.S.C. § 1983 claim alleging violations of her Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff claimed that Defendant officer, who had befriended her while at a juvenile detention center, became more intimate with the Plaintiff over an extended period. Plaintiff alleged that Defendant started to call her “babe;” looked in her cell when she was changing; and told the Plaintiff about a sexual dream that he wanted to have with her. Plaintiff claimed that she became uncomfortable with Defendant officer’s conduct and filed a PREA complaint. The court dismissed the Plaintiff’s claims, as “words coupled with isolated incidents of touching” did not amount to a constitutional violation.
Shears v. Carter, No. 1:16-CV-01427, 2018 WL 656034 (M.D. Penn. Jan. 31, 2018). Plaintiff inmate brought a claim under 42 U.S.C. 1983 alleging violations of his Eighth Amendment rights. Plaintiff alleged that Defendant officers sexually assaulted/harassed him during a pat-down search and used excessive force when forcing him into his cell. Plaintiff also claimed Defendant nurse was deliberately indifferent to his serious medical need when she failed to take any action when he reported the sexual assault. The court granted the Defendant’s motion for summary judgment.
Smith v. Trapp, No. 14-3220-JAR-JPO, 2018 WL 587230 (D. Kan. Jan. 29, 2018). Plaintiff inmate filed a complaint under 42 U.S.C. 1983 for violations of his Eighth Amendment rights. Plaintiff alleged that Defendant correction officer sexually assaulted him while conducting a strip search for contraband. During the strip search, the Plaintiff covered his genitals with his hands, and Defendant ordered him not to do so. Plaintiff then asked the Defendant why he wanted to view his genitals, and the Defendant allegedly responded, "[B]ecause I can" and "then licked his lips, smiled, and grabbed his [own] crotch.” Plaintiff claimed that he filed a PREA report following the incident. The Defendants investigated the Plaintiffs complaint but found it to be unsubstantiated; although the Defendant violated jail policies by not having a second officer present during the search. The court found that verbal abuse during a strip search that involves no physical contact does not constitute an Eighth Amendment violation and dismissed the Plaintiff’s claim.
PREA
Nelson v. Jeramiah, No. 3:17-CV-2419, 2018 U.S. Dist. LEXIS 10308 (M.D. Pa. Jan. 23, 2018). Plaintiff filed suit alleging constitutional violations (not stated within the complaint) and state law tort claims and filed a motion for appointment of counsel. Plaintiff alleged that Defendant officer sexually propositioned him and threatened to file a disciplinary report if Plaintiff told anyone. Plaintiff claimed that he filed a PREA complaint in October 2017 and had not received a response. The court did not consider the merits of the case but discussed whether to grant the Plaintiff counsel. The court denied the Plaintiff’s motion for counsel.
Muhammad v. Barksdale, No. 7:16cv00223, 2018 U.S. Dist. LEXIS 76909 (W.D. Va. Jan. 11, 2018). Plaintiff filed suit under 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff alleged that Defendant physician sexually assaulted him by performing a rectal prostate exam without his consent. Plaintiff further alleged that Defendant placed him on strip cell status in retaliation for filing a PREA complaint. Defendant claimed that prior to the Defendant transferring him to strip cell status, the Plaintiff expressed that he was experiencing suicidal/homicidal thoughts. The court determined that the Defendant placed the Plaintiff in strip cell status out of concern for his safety and not in retaliation for filing a PREA complaint. The court dismissed the Plaintiff’s claims.
Smith v. S.C.I. Benner Twp., No. 17-1606. U.S. Dist. LEXIS 5934 (W.D. Pa. Jan 11, 2018). Plaintiff filed suit under 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff alleged that Defendant employee verbally sexually harassed Plaintiff and asked Plaintiff to perform sexual acts on him. Plaintiff claimed that he filed a PREA complaint but that the Defendants took no action. The court did not consider the merits of the case but transferred the case to the Middle District of Pennsylvania for further proceedings.
Butts v. Harmon, 1:17-CV-P183-GNS, 2018 U.S. Dist. LEXIS 5203 (W.D. Ky. Jan. 11, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff alleged that Defendants officers violated his rights by putting him in a restraint chair for over 4 hours "without medical attention, drinking water, and restroom privilege.” As a result, Plaintiff claimed he sustained prolonged injury to his shoulder, arm and nerve damage. Plaintiff also alleged that the Defendant violated his due process rights because Defendant officers refused to allow him to file a PREA grievance until one-month after the incident. The court found that the Plaintiff does not have a due process right to file a PREA grievance. The court dismissed the Plaintiff's due process and PREA claims but allowed the First Amendment retaliation claim to proceed.
Winstead v. Williams, No. CV 617-049, 2018 U.S. Dist. LEXIS 3843 (S.D. Ga. Jan. 9, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violations of his First and Eighth Amendment rights. Plaintiff claimed that he filed a PREA grievance and asked the Defendant to move him to a different cell away from his cellmate, who was sexually violent and threatening. Defendant denied Plaintiff’s complaint, and his cellmate subsequently sexually assaulted him. Plaintiff further alleged that he filed PREA grievances concerning the assault, and the Defendant officers transferred him to another prison in retaliation for filing a PREA complaint. The court dismissed the case, as the Plaintiff failed to exhaust administrative remedies for the retaliation claim and failed to identify a particular risk that would show Defendant had subjective knowledge of a risk of serious harm to satisfy the deliberate indifference claim.
Angle v. Carter, No. 16-276 Erie, 2018 U.S. Dist. LEXIS 207480 (W.D. Pa. Jan. 8, 2018). Plaintiff brought a claim under 42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights for deliberate indifference and failure to protect. Plaintiff claimed that another inmate sexually assaulted him in his cell. Plaintiff further alleged that Defendant classified him as "high risk" for rape victimization, which required that he be housed in a cell "in the direct line of sight." However, Defendant placed him in a cell on the opposite side of the unit with poor sight lines. Furthermore, Plaintiff alleged that Defendant prohibited him from using the PREA hotline to report the sexual assault. When Defendant did allow Plaintiff to use the phone, Plaintiff refused to get off and Defendant cuffed him. A month later, Defendant wrote him up for misconduct. The court denied the Defendants motion to dismiss. The court found that the evidence presented was sufficient to establish that Defendant created conditions of incarceration that posed substantial risk of harm and that Defendant was indifferent to this risk. The court dismissed the Plaintiff’s claim for retaliation. ??????
McClanton v. Bundit, 2018 U.S. Dist. LEXIS 1887 (E.D. Ark. Jan. 5, 2018). Plaintiff brought a 42 U.S.C. § 1983 claim for violation of his Eighth Amendment rights. Plaintiff alleged that another inmate saw him masturbating in the shower and began making vulgar comments about Plaintiff's body. Plaintiff claimed he reported the incident to the Defendant assistant warden. Plaintiff claimed the Defendant informed him that his investigation was inconclusive and that Defendant thought the other inmate was simply joking. Plaintiff further alleged that seeing the inmate in his barrack made him feel uncomfortable and made him relive the incident. The court found that Defendant did not fail to protect Plaintiff because they took his allegations seriously and investigated his claim of sexual harassment. The court dismissed the Plaintiff's complaint.
Patrick v. Hernandez, No. 2:17-cv-1206 CKD P, 2018 U.S. App. LEXIS 459 (E.D. Cal. Jan 2, 2018). Plaintiff filed suit under 42 U.S.C. § 1983 claiming violations of his Eighth Amendment rights. Plaintiff alleged that Defendant physicians tried to convert him to homosexuality by "offering special favors, such as the jack off exposing Plaintiff's penis in each treatment group." Plaintiff claimed that Defendant correction officers threatened other inmates in the treatment group with physical force if they did not have sex with Defendants. When the Plaintiff refused, the officers retaliated by “1) tightening his handcuffs too tight; 2) sexually harassing him while in the cage for treatment and in his cell; and 3) denying him medical treatment and law library access." The court found that Plaintiff did not allege specific actions directed towards him and granted him leave to amend his complaint.
Locke v. Beth, No. 17-C-1636, 2017 U.S. Dist. LEXIS 210893 (E.D. Wis. Dec. 22, 2017). Plaintiff brought a 42 U.S.C. § 1983 claim alleging violations of his Eighth and Fourteenth Amendment rights and PREA. Plaintiff alleged that Defendant officer made sexually explicit comment to Plaintiff on multiple occasions, rubbed his private parts in front of the Plaintiff, and during a pat-down, the Defendant rubbed his erect penis into the Plaintiff’s buttocks, while grinding on him. Plaintiff claimed that he filed two PREA grievances with two different Defendant officers but the Defendants took no action. The court allowed Plaintiff’s Eighth and Fourteenth Amendment claims to proceed but dismissed his PREA claim.
Frye v. Wilt, No. 1:16-CV-780, 2017 U.S. Dist. LEXIS 206389 (M.D. Pa. Dec. 15, 2017). Plaintiff filed suit pursuant to 42 U.S.C. 1983 for failure to protect in violation of his Eighth Amendment rights. Plaintiff, a gay inmate, alleged that his cellmate viciously sexually assaulted him. Plaintiff claimed that the Defendant knew that the cellmate was a convicted rapist and Defendants had previously disciplined him for violence against another inmate and for failing to protect the inmate. The Defendant moved for summary judgment for failure to exhaust administrative remedies. The court found that the Defendant did not establish that Plaintiff failed to exhaust administrative remedies, quoting PREA, stating, “PREA’s implementing regulations make it clear that the DOC shall provide multiple internal ways for inmates to privately report sexual abuse… and staff neglect or violations of responsibilities…”
LGBTI
Mardis v. Enloe, No. 17 CV 500009, 2018 U.S. Dist. LEXIS 20707 (N.D. Ill. Feb 8, 2018). Plaintiff, a transgender woman, filed suit pursuant to 42 U.S.C. § 1983 and 1981 alleging that Defendants discriminated against her for being transgender and retaliated against her for filing a PREA complaint. The court considered the Plaintiff’s third motion for appointment of counsel and denied her motion.
Balsewicz v. Blumer, No. 17-CV-360-JPS, 2017 U.S. Dist. LEXIS 213176 (E.D. Wis. Dec. 29, 2017). Plaintiff, a transgender woman, filed suit under 42 U.S.C. § 1983 alleging violation of her Eighth Amendment rights. Plaintiff alleged that she has gender dysphoria, which Defendants failed to treat, and that this condition and Defendant's actions caused Plaintiff to develop suicidal tendencies. Defendants moved her to Wisconsin Resource Center, where she was evaluated for gender dysphoria. However, Defendants failed to forward her medical report to the new Center, which caused a delay in receiving gender dysphoria treatment. Plaintiff claimed that she experienced "depression, pain, and suicidal attempts." The court allowed Plaintiff to proceed with her amended claims: 1) an Eighth Amendment claim of deliberate indifference to her serious medical need arising from gender dysphoria; 2) an Eighth Amendment claim of deliberate indifference to her serious medical need arising from her repeated threats and attempts of suicide.
Leibelson v. Collins, No. CV 5:15-CV-12863, 2017 WL 6614102 (S.D.W. Va. Dec. 27, 2017). Plaintiff, a transgender woman, filed a suit under 42 U.S.C. § 1983 alleging violation of her Eighth Amendment rights and a Bivens action under the Federal Torts Claim Act (FTCA). Plaintiff claimed that Defendant, who knew that another inmate had raped her at another facility, subjected her to both verbal and sexual abuse and overall mistreatment. Plaintiff alleged that Defendant officer sexually assaulted her, and other inmates would withhold food unless she agreed to give them sexual favors. Plaintiff alleged that the Defendant failed to protect her from other inmates since Defendants were aware of her risk of sexual assault. The court allowed Plaintiff’s Eighth Amendment claims to proceed but dismissed all other claims.
Becker v. Sherman, No. 1:16-cv-0828 AWI MJS (PC), 2017 U.S. Dist. LEXIS 203501 (E.D. Cal. Dec. 11, 2017). Plaintiff filed an action pursuant to 42 U.S.C. § 1983 alleging an Eighth Amendment failure to protect claim. Plaintiff, a transgender woman inmate, alleged that other inmates sexually assaulted her multiple times based on her status as a transgender inmate. Plaintiff alleged the typical response by prison officials had been to transfer her to another institution. Plaintiff contended that the Defendants should have considered the totality of evidence, including the history of assaults and her heightened risk for future harm as a transgender inmate, and assigned her permanent single-cell status. The court found that, based on the Plaintiff's sexual identity, she faces a substantial high risk of assault if not housed in a single-cell status. The court found the facts as stated are sufficient to state a claim against Defendants for failure to adequately protect Plaintiff.
No Discussion/Failure to Exhaust Administrative Remedies
Blakemore v. Missouri, No. 4:17-CV-0223 JMB, 2018 U.S. Dist. LEXIS 22987 (E.D. Mo. Feb. 13, 2018). Plaintiff filed a suit under 42 U.S.C. § 1983 alleging violation of his constitutional rights and PREA. Plaintiff alleged that another inmate sexually assaulted him at the detention center. The court dismissed the Plaintiff’s claims, as the Plaintiff failed to identify an individual who was directly involved in the alleged act and because PREA does not create a right of action.
Oien v. Oregon, No. 2:17-cv-00978-HZ, 2018 U.S. Dist. LEXIS 9459, (D. Or. Jan. 19, 2018). Plaintiff filed suit pursuant to 42 U.S.C. 1983 for violation of his 8th Amendment rights. Plaintiff alleged that during a strip search Defendant officer sexually assaulted him by “putting a finger up his bottom” and that the Plaintiff promptly verbally reported the assault to another officer. Plaintiff further claimed that the Defendant officer threatened him not to say anything and moved Plaintiff to another unit in retaliation of his complaint. The court dismissed the Plaintiff’s claims for failure to exhaust administrative remedies, stating that while he filed grievances, none of the reports were directly related to the sexual assault in dispute.
Barnett v. G. Harlow C.O., 2018 U.S. Dist. LEXIS 66453 (S.D. Ind. Jan 3, 2018). Plaintiff brought a 42 U.S.C. 1983 action claiming violations of his Eighth Amendment rights. Plaintiff alleged that the Defendant officer sexually assaulted him and allowed another inmate to sexually assault him. Plaintiff further alleged that medical supervisor refused him treatment and that the staff psychologist refused to see him. The court dismissed the Plaintiff’s claims for failure to exhaust administrative remedies.
Miller v. Albert Najera, No. 1:12-CV-01288-LJO, 2017 WL 6538998 (E.D. Cal. Dec. 21, 2017). Plaintiff filed suit pursuant to 42 U.S.C. 1983 for violation of his Eighth Amendment right and a Bivens claim under the Federal Torts Claims Act (FTCA). Plaintiff alleged that on multiple occasions he notified the Defendant verbally that he was at risk of sexual assault. Plaintiff claimed that when he first released into general population, Defendants housed Plaintiff with a cellmate that had been sentenced on charges, including raping the Plaintiff. Plaintiff claimed that he had to talk to multiple guards and lawyers before the Defendants removed his cellmate from the unit. Plaintiff also alleged that several months later another inmate began repeatedly raping him but did not report it. The Plaintiff began experiencing abdominal pain and bleeding. Plaintiff then reported the rape to the Defendant, who began an investigation. Defendants transferred the Plaintiff to another unit and later notified him that he was HIV positive. The court dismissed the Plaintiff’s Bivens claim for failure to show that Defendant employees knew that the conditions were dangerous and unconstitutional and, even with that knowledge, Defendant acted with deliberate indifference. Further, the court dismissed Plaintiff’s Eighth Amendment claim for failure to exhaust all administrative remedies.