Quarterly Newsletter
March 2018 - May 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 twenty cases found, thirty-one percent addressed sexual assault in the case, while thirty-four percent mentioned PREA. Ten percent of the cases discussed LGBTQ, and twenty-four 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
Hensley v. Bossio, Civil Action No. 17-7-HRW, 2018 U.S. Dist. LEXIS 38665 (E.D. Ky. March 9, 2018). Plaintiff’s father and executor of his estate filed suit under 42 U.S.C. § 1983 alleging violation of the Plaintiff’s Eighth Amendment rights. The Plaintiff died while incarcerated at the Little Sandy Correctional Complex ("LSCC"). Another inmate beat, possibly raped, and strangled the Plaintiff to death. The Plaintiff’s father claimed that the Defendant’s deliberate indifference and failure to protect the Plaintiff resulted in his rape and death. The court denied the Defendant’s motion for summary judgment.
Woods v. Lewis, No. 2:16 CV 06 CDP, 2018 U.S. Dist. LEXIS 44278 (E.D. Mo. March 19, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his First and Eighth Amendment rights. Plaintiff claimed that Defendant officer watched him in the shower for sexually motivated reasons and blew kisses at the Plaintiff in his cell. Plaintiff also alleged that the Defendant officer violated his First Amendment rights when he issued a conduct violation in retaliation for Plaintiff’s stated intention to file a PREA complaint. The court granted summary judgment to the Defendant as to the Plaintiff’s claims because the Defendant officer’s actions did not amount to a constitutional violation and there was evidence supporting issuance of ``the conduct violation.
Does 11-18 v. Dep't of Corr., No. 332536, 2018 WL 1512432 (Mich. Ct. App. Mar. 27, 2018). Seven unidentified male prisoners filed suit under the Elliott-Larsen Civil Rights Act (ELCRA), or the Public Act 453 of 1976. The Act prohibits discrimination in Michigan on the basis of "religion, race, color, national origin, age, sex, height, weight, familial status, or marital status" in employment, housing, education, and access to public accommodations. They alleged that while they were under the age of 18, Defendants housed them with adult prisoners who took advantage of their youth to commit sexual and physical abuse and harassment, and that the defendants knew or should have known of the risk to plaintiffs but failed to prevent the abuse and harassment, or aided and abetted it. The Defendants appealed arguing that the trial court erred when it concluded that governmental immunity does not apply to such civil rights actions. The court ruled that the trial court made no errors warranting reversal and affirmed the decision.
Delee v. Hannigan, No. 17-925-PR, 2018 WL 1517153 (2d Cir. Mar. 28, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff claimed that on November 17, 2007, Defendant officer beat, kicked, and sexually assaulted him as retribution for seeking a refund at the commissary. The Plaintiff appealed the judgment of the United States District Court for the Western District of New York dismissing his suit pursuant to a jury verdict on his 42 U.S.C. § 1983 excessive force claim. The court upheld the district court’s ruling, finding no merit to the Plaintiff’s excessive force argument.
Doe v. Cravens, No. 2:17-CV-00049, 2018 WL 1522401 (M.D. Tenn. Mar. 28, 2018). Two plaintiffs filed suit pursuant to 42 U.S.C. § 1983 alleging violation of their Eighth Amendment rights. The Plaintiffs claimed that the sheriff sexually assaulted them at the jail. The court ruled that the allegations in the Amended Complaint were more than sufficient to establish a plausible claim that, at Defendant Sheriff’s jail, there existed “a custom of tolerance or acquiescence of federal rights violations” and denied the Defendant’s motion to dismiss.
Heffernan v. State, 2018 VT 47 (Vt. Apr. 20, 2018). Plaintiff appealed the trial court's decision dismissing her complaint, which sought indemnification (payment) from the State on a default judgment she obtained against a Defendant officer, a state employee, and which claimed that the State is vicariously liable for the employee's conduct. In the original action, the Plaintiff alleged that the Defendant officer used his authority to obtain sexual favors from her and arranged for them to be in locations where he could sexually assault her without notice. The Plaintiff notified the State about the suit so that they could defend the Defendant officer, but the State declined, determining that the acts alleged fell outside the Defendant officer’s official duties and that, therefore, the State did not have a duty to defend him. The Defendant officer did not appear or offer any defense in the suit against him, and the trial court eventually issued a default judgment against him. The court subsequently held a hearing on damages and awarded the Plaintiff both punitive and compensatory damages, and the Plaintiff sought payment from the State. The court affirmed the trial court’s decision.
Moore v. Romero, No. 117CV01293BAMPC, 2018 WL 2047082 (E.D. Cal. May 2, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Fourth and Eighth Amendment rights. Plaintiff claimed that Defendant officer sexually assaulted him during a strip search. Plaintiff claimed the Defendant made him take off all his clothing, open and wiggle his tongue, spread his anus apart with his fingers squat, and cough repeatedly while stating that the Plaintiff was not doing in correctly. The court dismissed the Plaintiff’s claims with leave to amend, as Plaintiff’s complaint fails to demonstrate that the visual cavity search at issue was unreasonable.
Gomes v. Mathis, No. CV 17-7022 SVW (SS), 2018 U.S. Dist. LEXIS 76081 (C.D. Cal. May 3, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff claimed that a female Defendant officer raped him in 2008; the prison failed to provide him with proper medical care and mental health services; and Defendant officers retaliated against him for submitting a PREA complaint. The court dismissed the Plaintiff’s complaint with permission to amend, as the facts from the complaint were unclear as to whether statute of limitations bars the claim and for failure to state an Eighth Amendment claim.
Smith v. Goss, et al., No. 116CV01356BAMPC, 2018 WL 2329210 (E.D. Cal. May 23, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff claimed that over the course of several years, Defendants (42 named in the complaint) beat him several times while restrained, sexually assaulted him during strip searches on two different occasions, ordered Plaintiff’s clothes be cut off him to degrade and sexually harass Plaintiff under the guise of a medical evaluation, and denied him access to the courts. The court dismissed the Plaintiff’s Eighth Amendment sexual assault and medical indifference claims, for failure to state a cognizable claim, but allowed his Eighth Amendment excessive force claim to proceed.
PREA
McCain v. Wetzel, C.A. 17-194 Erie, 2018 U.S. Dist. LEXIS 37961(W.D. Penn. March 8, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff claimed that Defendant officer watched him in a shower a couple of times and made lewd comments, in violation of PREA. The court dismissed the Plaintiff’s claims.
Belback v. Barner, Civil Action No. 2:17-cv-1222, 2018 U.S. Dist. LEXIS 44162 (W.D. Penn. March 19, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff contended that Defendant engaged in sexual harassment when he conducted routine pat searches, by caressing his breast and swiping his hand along his buttocks. The court denied the Defendant’s motion for summary judgement finding that Plaintiff has alleged enough to create a plausible Eighth Amendment claim.
Kitterman v. Brinkley, Case No. 18-cv-00112-SMY, 2018 U.S. Dist. LEXIS 44477 (S.D. Ill. March 19, 2018). Plaintiff filed originally filed suit pursuant to 42 U.S.C. § 1983. Kitterman v. Global Tel-Link Corp., et al., Case No. 17-cv-00290-SMY (S.D. Ill.). The court from the original complaint severed two retaliation claims (Counts 5 and 6) against Defendant PREA coordinator and Defendant officer into the instant case. While working at the prison's law library under the supervision of Defendant officer in September 2016, the Plaintiff claimed that he observed Defendant officer engage in sexual misconduct with an inmate three different times. Plaintiff filed a PREA complaint, which he claimed Defendant PREA coordinator did not investigate. Instead, Plaintiff alleged that Defendant Officer “self-processed” the complaint and removed Plaintiff from his job, educational classes and rehabilitative programs. When other officers found out (named in original action), they retaliated against the Plaintiff and assaulted him. The district court referred the case to the US Magistrate for further proceedings.
Howell v. Broadbent, 16-cv-477-jdp, 2018 U.S. Dist. LEXIS 47114 (W.D. Wis. March 22, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his First and Eighth Amendment rights. Plaintiff claimed that the Defendant nurse sexually assaulted him while treating him in the prison hospital, and that when he tried to file a grievance, Defendant officers threatened him. Plaintiff claimed that when he filed a grievance, Defendant officers issued Plaintiff a report for lying. The court set a hearing to discuss the motion to dismiss for failure to exhaust administrative remedies.
Johnson v. Prus, No. 1:16-cv-01146-TWP-TAB, 2018 U.S. Dist. LEXIS 50650 (S.D. Ind. March 26, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff alleged that Defendant officer touched him inappropriately during a search by squeezing his testicles and Defendant officer retaliated against him when he attempted to file a PREA report. PREA coordinator conducted an investigation and found Plaintiff’s claims to be unsubstantiated. The court denied the motion for summary judgment as to the Plaintiff’s claims against Defendant Officer but granted summary judgment as to the Defendant prison.
Saintal v. Pesce, No.: 2:15-cv-02460-GMN-NJK, 2018 U.S. Dist. LEXIS 55216 (D. Nev. March 30, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of her First and Eighth Amendment rights. Plaintiff alleged that another inmate sexually assaulted her, and she reported the incident to Defendant officers. Plaintiff further claimed that another Defendant officer told the PREA coordinator not to take any further action to investigate the incident and placed Plaintiff back into the same cell as her assailant as retaliation for filing a PREA grievance. The court allowed the Plaintiff’s deliberate indifference claims to proceed and gave the Plaintiff leave to amend her failure to train claim.
Cox v. Mass. Dep't of Corr., No. 13-10379-FDS, 2018 U.S. Dist. LEXIS 55482 (D. Mass. March 31, 2018). Plaintiff filed suit pursuant to the Americans with Disability Act, 42 U.S.C. § 12101 et seq. Plaintiff claimed that he was the victim of discrimination due to his disability because the Defendants denied him adequate access to: (1) procedures to obtain medical care; (2) procedures to report and resolve grievances; (3) procedures to report physical or sexual assaults; and (4) use of telephones. Plaintiff is mentally disabled and has an intelligence quotient ("IQ") of 51. He is unable to read, write, and dial a telephone without assistance. Plaintiff presented evidence that he was the victim of a sexual assault committed by other inmates, in which other inmates inserted a deodorant bottle in his anus. After a trial, a jury found in his favor on those claims and awarded him money damages. Defendant Massachusetts Department of Correction has moved for judgment in its favor as a matter of law under Fed. R. Civ. P. 50 or for a new trial. The Court ordered a new trial limited solely to the issue of damages for plaintiff's access to procedures to report and resolve grievances.
Theriot v. Woods et al., No. 2:17-CV-160, 2018 WL 1616394 (W.D. Mich. Apr. 4, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff contends that Defendant officers subjected him to sexual harassment by standing too close, gyrating their hips in front of him, and watching him in the shower. The court ruled that Plaintiff’s claims do not rise to the level of an Eighth Amendment violation and dismissed all of the Plaintiff’s claims.
Williams v. Officer J. Phillps, et al., No. 2:17-CV-04291, 2018 WL 1887462 (E.D. Pa. Apr. 20, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff claimed that two Defendant officers sexually assaulted and harassed him. The Defendants moved for dismissal for failure to exhaust all administrative remedies. The court ruled that it was unclear whether the Plaintiff failed to exhaust all administrative remedies, as the Plaintiff verbally reported the assaults and harassment to different officers. The court analyzed PREA and found that the Plaintiff alleged that he reported the allegations of abuse and harassment by Croak to a staff member, which is consistent with the available reporting options, and denied the motion to dismiss.
Henry v. Kerschner, NO. 18-1737, 2018 U.S. Dist. LEXIS 75596 (E.D. Penn. May 4, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights and PREA. Plaintiff claimed that Defendant officer entered the Plaintiff’s cell, locked the door behind him, and struck the Plaintiff in the face with a closed fist. Plaintiff alleged that the Defendant officer grabbed his penis and testicles with one hand and struck the Plaintiff several more times with his other hand. Plaintiff filed a grievance, which the Defendant officers rejected, and he appealed the decision twice. Plaintiff alleged that the Defendants further denied him any mental health services. The court dismissed all claims based on allegations that the defendants failed to comply with PREA or any policies or regulations implementing PREA, as PREA does not provide a private right of action. Further, the court dismissed the Plaintiff’s deliberate indifference claims, as he has also failed to state a plausible claim against the defendants. The court ruled that the Plaintiff failed to state a deliberate indifference claim based on the defendants' alleged failure to comply with policies or regulations enforcing PREA.
Aplin v. Or. Dep't of Corr., No. 6:17-cv-01222-MO, 2018 U.S. Dist. LEXIS 77951 (D. Or. May 8, 2018). Plaintiff filed a complaint under 42 U.S.C. § 1983, alleging that Defendants violated Plaintiff's Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff claimed that two Defendant officers sexually assaulted her in the cleaning closet. Plaintiff alleged that she reported the incident to the Governor’s office and the PREA department, and the Defendant told her that they would investigate the incident. The Plaintiff claimed that the Defendants did not investigate the incident and moved her to another unit within the prison. Defendants moved for summary judgment, arguing that Plaintiff's claim was barred by the statute of limitations. The court granted summary judgement on the Plaintiff’s claims of sexual assault due to the statute of limitations but allowed the Plaintiff’s post-assault allegations (deliberate indifference and failure to investigate) to proceed.
LGBTI
Clark v. LeBlanc, No. CV 17-0111-BAJ-EWD, 2018 WL 1547860 (M.D. La. Mar. 13, 2018). ). Plaintiff, a transgender woman, filed suit pursuant to 42 U.S.C. § 1983 alleging violations of her Fourth and Eighth Amendment rights. Plaintiff alleged that the Defendant failed to properly treat Plaintiff's condition and provide appropriate accommodation therefor. Plaintiff further asserted that the Defendant failed to investigate her claims of sexual harassment and abuse. The court dismissed all of the Plaintiff’s claims for failure to exhaust administrative remedies.
Delk v. Moran, No. 7:16-CV-00554, 2018 U.S. Dist. LEXIS 50534 (W.D. Va. March 27, 2018). Plaintiff, a transgender woman, filed suit pursuant to 42 U.S.C. § 1983 alleging violations of her Eighth and Fourteenth Amendment rights. Plaintiff claimed that Defendant officers subjected her to ongoing sexual abuse and harassment, and one of the Defendant officers threated the Plaintiff with physical harm if she did not submit to his advances. The court allowed the Plaintiff’s claims against the Defendant doctor who the Plaintiff claimed did not properly treat her and failed to screen her.
Saunders-Velez v. Colo. Dep't of Corr., No. 17-cv-01654-MSK-MJW, 2018 U.S. Dist. LEXIS 66921 (D. Col. April 20, 2018). Plaintiff, a transgender woman, filed suit pursuant to 42 U.S.C. § 1983 alleging violations of her Fourth and Eighth Amendment rights. The Plaintiff alleged that: another inmate sexually assaulted her, inmates continuously threaten to sexually assault her; and Defendant officers have not taken any action to protect her or treat her as vulnerable population. The court ruled that the Plaintiff failed to demonstrate that she is in imminent harm from other prisoners nor is the lack of privacy screen (and other transgender protections) an irreparable harm warranting injunctive relief and set a hearing to discuss the matter further.
Hardeman v. Smith, No. CIV 16-238-RAW-SPS, 2018 U.S. Dist. LEXIS 51236 (E.D. Ok March 28, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of her Eighth Amendment rights. Plaintiff, a transgender woman in a male’s prison, claimed that another inmate assaulted her while being kept in a segregated unit because of being transgender. The Plaintiff submitted several grievances, but the court found that the Plaintiff failed to exhaust her administrative remedies and dismissed the case.
No Discussion/Failure to Exhaust Administrative Remedies
Manuel v. Lassiter, 1:17-cv-230-FDW, 2018 U.S. Dist. LEXIS 46030 (W.D. NC March 21, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his First, Eighth, and Fourteenth Amendment rights. Plaintiff alleged that Defendant officers sexually harassed and illegally searched him, threatened him, and “busted his eye open” for filing a PREA complaint. The court dismissed the Plaintiff’s claims as moot because the injunctive relief the Plaintiff sought is no longer valid (transfer to another facility that had already occurred).
Sarvey v. Wetzel, C.A.No. 16-157ERIE, 2018 U.S. Dist. LEXIS 51487 (W.D. March 28, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of her Eighth Amendment rights. Plaintiff claimed that Defendant officer sexually assaulted her, and prior to the assault, he touched her breasts and buttocks on several occasions. Plaintiff also alleged that another Defendant officer witnessed this behavior and did not report it. Plaintiff filed a PREA grievance, and at the time of filing the complaint, the Defendants had not given her an update on the investigation. The court dismissed the Defendant’s motion for summary judgment because "no ordinary prisoner could make sense of what" is demanded for purposes of proper exhaustion of these claims and that administrative remedies were unavailable to Plaintiff.
Trevari v. Robert A. Deyton Det. Ctr., No. 17-10716, 2018 WL 1603097 (11th Cir. Apr. 3, 2018). Plaintiff appealed the district court’s dismissal of his claims against certain prison officials. On appeal, Trevari argued the district court improperly determined that he had failed to exhaust the available administrative remedies for his claims under the First and Fourteenth Amendments. Plaintiff filed 23 complaints, 7 of which were allowed to proceed in the original proceeding. Plaintiff claimed in one of the remaining complaints that other prisoners had sexually assaulted him, and when he reported it to Defendant officer, the Defendant took no action. The Appeals Court was unable to determine whether the Plaintiff exhausted his administrative remedies and vacated the dismissal of the Plaintiff’s claims.
Mekuria v. Adams, No. GLR-17-3176, 2018 U.S. Dist. LEXIS 71985 (D. Md. April 30, 2018). Plaintiff filed suit seeking injunctive relief in the form of prison transfer and monetary damages. Plaintiff claimed that Defendant officer had sexually assaulted him on a daily basis and his life was in danger. Defendant responded to the complaint stating that the complaint is a product of the Plaintiff’s mental illness. The court rejected the Plaintiff’s request for injunctive relief and dismissed the complaint.
Fordley v. Lizarraga, et al., No. 216CV1985MCEEFBP, 2018 WL 2058206 (E.D. Cal. May 3, 2018). Plaintiff filed suit pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights. Plaintiff claimed that Defendant officers assaulted him physically and sexually, gave him razor blades to encourage him to kill himself, and repeatedly interfered with his meals. The court dismissed the Plaintiff’s claims for failure to exhaust all administrative remedies.