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Legal Considerations in Addressing Staff Sexual Misconduct

National Institute of Corrections/American University,

Washington College of Law

March 9-14, 2003

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Thoughts about Litigation

litigation is last resort

locks people into positions

policy and practice developed in crisis

solutions are about vindicating winner

not necessarily what is best or practicable

hard to enforce

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Your Role in Litigation

Prevent – training, policyInsulate from liability – ensure procedures are in place to protect officialsAct – Change procedures if necessary even though litigation pendingDefend – If you are correct do soInfluence – Legislature, etc.

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Staff Sexual Misconduct

Important Factors who raises the issue

male inmate female inmate

what has been your history complaints about misconduct complaints about other institutional concerns community standing

the context in which the issue is raised Litigation Investigation Agency oversight

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Most commons legal bases for challenges

42 U.S. C. 1983

Eighth Amendment – punishment

Fourth Amendment - search

Fourteenth Amendment – due process

State tort claims

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42 U.S.C. 1983

Creates a federal cause of action for the vindication of rights found elsewhere

Key elementsdeprived of a right secured by the

constitution or law of U.S.deprivation by a person acting under color

of state law

Don’t forget volunteers and contractors

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Eighth Amendment

Prohibits cruel and unusual punishment

Legal standard is deliberate indifference established in a prison rape case Farmer v.

Brennan (1994) two part test

the injury must be objectively serious and must have caused an objectively serious injury

the official must have a sufficiently culpable state of mind and have acted with deliberate indifference or reckless disregard for the inmate’s constitutional rights

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What the court looks for

Deliberate indifference to inmate vulnerability -- safety or healthofficial knew of and disregarded an

excessive risk to inmate safety or healthofficial must be aware of facts from which

an inference could be drawn that a substantial risk of harm exists and he must draw the inference

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Important Cases

Carrigan v. Davis (D.Del. 1999)(sexual intercourse between an inmate and officer is per se 8th amendment violation. Consent is not a defense) “special responsibility” due to lack of control

Women Prisoners v. DC, 877 F. Supp. 634 (D.D.C. 1994)(sexual misconduct violates the 8th amendment of the Constitution) No specific training, inconsistent reporting, cursory

investigations and timid sanctions

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Important Cases

Daskalea v. DC, 227 F.3d 433 (D.C. Cir. 2000)(plaintiff awarded $3.5 million in damages)Abuse began when entered the prisonRumors of FBI agentTwo assaults Striptease

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PLRA

Porter v. Nussle, 122 S. Ct. 983, 986 (2002) (exhaustion requirement of PLRA). Must exhaust.Morris v. Eversley, 2002 WL 1313118 (S.D. N.Y. June 13, 2002) (woman challenging sexual assault during incarceration was not required meet PLRA exhaustion requirement once released)

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Important Themes

Sex in prison is a violation of the Eighth Amendment

Special responsibility for inmates. No consent.

Courts look to the practice of the institution in determining liability

Protect employees who report

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Code of SilenceBaron v. Hickey (D. Mass 2003)

County corrections officer harassed by coworkers after reporting misconduct

Reported coworker playing cards w/inmates

Referred to as “rat”; slashed tires, etc.

Complained on 30 occasions

Claimed forced to resign

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Municipal Liability

Monell v. Department of Social Services, 436 U.S. 658 (1978)municipality is a person who can be held

liable under Section 1983policy or custom must inflict the injury

inaction failure to train or supervise failure to investigate

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Qualified Immunity

Exception for public employees – private not covered

Rights and law not clearly established at the time of the incident

Official could not have known or would not have known actions violated laws or rights

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Official Liability

Did it happen on your watch

Were you responsible for promulgating and enforcing policy

Did you fail to act or ignore information presented to you

Fail to TRAIN, SUPERVISE, FIRE

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Personal Liability

Must provide notice that the suit is against official in her personal capacity

Direct participation not requiredActual or constructive notice of

unconstitutional practicesDemonstrated gross negligence or

deliberate indifference by failing to act

Egregious behavior – but it can happen

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Elements of Claim for Personal Involvement Morris v. Eversley, 2002 WL 1313118 (S.D. N.Y.

June 13, 2002) Official participated directly in the alleged constitutional violation – Sup’t and Ass’t Sup’tFailed to remedy the wrong after being informed through a report or an appeal – No responseEnforced a policy or custom under which unconstitutional practices occurred – pregnancies, other reportsWas grossly negligent in supervising subordinates who committed the wrongful actsNo qualified immunity – state law prohibited such conduct

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Case Example:Riley v. Olk-Long, 2002 WL 362603 (8th Cir. Iowa)

March 8, 2002

Inmate brought Section 1983 action

Warden and Security Director named defendants

Jury found in favor of inmate.

Warden and Security Director appealed

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Case Example:Riley v. Olk-Long, 2002 WL 362603 (8th Cir. Iowa)

March 8, 2002Result: Prison warden and director of security were deliberately indifferent to the substantial risk of harm that guard presented to female inmates. Held personally liable to inmate in amount of $20,000 against Sebek and $25,000 in punitive damages from Olk-Long the warden

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Case Example:Riley v. Olk-Long, 2002 WL 362603 (8th Cir. Iowa)

March 8, 2002What happened? Officer made inappropriate comments to inmate Riley about

whether she was having sex with her roommate He came into her room after lockdown and attempted to reach

under her shirt – violation of policy to be there Later he grabbed her from behind, rubbed against her and kissed

her Inmate didn’t report above because “she doubted that she would be

believed and feared the resulting discipline” Officer entered cell and raped her. Another inmate witnessed incident and reported it Inmate placed in administrative segregation during investigation. Officer terminated Convicted under state law

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Case Example:Riley v. Olk-Long, 2002 WL 362603 (8th Cir. Iowa)

March 8, 2002Why held liable – didn’t do right thing? Prior to this incident other female inmates had

complained C.O. had a history of predatory behavior Four prior investigations closed as inconclusive

(sending $, sexual assaults, bus stop pick up, comment to inmate’s mother)

Collective bargaining unit precluded permanent reassignment – put in control center for short time

Sebek had opportunity to terminate but didn’t

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Case Example:Riley v. Olk-Long, 2002 WL 362603 (8th Cir. Iowa)

March 8, 2002

Why?Sebek and Olk-Long passed the buckOlk-Long didn’t think that officer posed a

threatCollective bargaining agreement was no

defense to failure to protect inmate safety

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Lessons Learned

Examine patterns in your institution – Red Flags

Same officer accused many times

Immaculate conception – inmate pregnancy

Compromised grievance procedures

Fear of Warden - Don’t bring me no bad news

History of inconclusive findings

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Colman v. Vasquez, 142 F. Supp.2d 226, (2d. Cir. 2001)

Facts Female inmate Incarcerated at FCI Danbury In special unit for victims of sexual abuse -- the

Bridge Program Random pat searches by male staff Sexual advances by staff member Complaint to psychiatrist who informed a Lt. No response by administration Sexual assault in 1997

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Colman, cont.d

Fourth Amendment Recognizes split in judicial opinions on privacy

rights of male and female inmates Gives weight to factual situation – female inmate

in sexual abuse trauma unit is different Must look at nature of search, circumstances of

inmate and penological justification for policy at issue

Left open that cross gender supervision could violate 4th amendment

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Colman, cont.d

Eighth AmendmentAnalyzed cross gender supervision under

8th rather than 4th because of allegation of extreme emotional distress, Jordan v. Gardner

Sees case as like Jordan because of previous knowledge of institution about trauma history of inmate – no cross gender search

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Colman, cont.d

Failure to protect and trainWarden and Lt failed to investigate her

complaints about the defendantWarden and Lt. Failed to discipline officerWarden Harding failed to properly train Lt.

Meredith to investigate allegations of sexual misconduct and harassment

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Elements of Failure to Protect

Prison official knew that the inmate faced a substantial risk of serious harm

Disregarded risk by failing to take reasonable steps to abate the risk

No qualified immunity for Warden

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Corona v. Lunn, 2002 WL 550963 (S.D.N.Y April 11, 2002)

FactsDetective assigned by county to investigate

allegations of sexual misconductReceives information that inmate Ross had

sex with C.O CoronaRoss initially denies in interviewRoss admits later to sexRoss has history of mental illness

(depression, hallucinations, suicide)

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Corona v. Lunn, 2002 WL 550963 (S.D.N.Y April 11, 2002)

Facts (cont’d) Detective takes statement Detective corroborates detail with records and review of

facility Files a felony complaint against Corona He is placed on administrative leave without pay C.O. charged with sexual assault of inmate Acquitted after jury trial Reinstated with back pay Corona files suit for false arrest and malicious prosecution

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Claims

False arrestDefendant intended to confine plaintiffPlaintiff was aware of confinementPlaintiff did not consent to confinementThe confinement was not otherwise

privileged

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Claims

No false arrest because Detective had probable cause.Could rely on informant testimony

notwithstanding her psychiatric historyCorroborated her testimonyWas objectively reasonable to believe that

probable cause existedReasonable officers could have disagreed

over whether probable cause existed

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Claims

Malicious ProsecutionDefendant maliciously commenced or

continued prosecution against plaintiff in a criminal proceeding that ended in plaintiff’s favor

No probable cause

Result: In this case there was probable cause to arrest. Nothing happened post arrest to negate earlier probable cause.

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Malicious ProsecutionMoran v. CSC (SD Fla. 2002)

Youth reported sexual assault. Staff nurse arrested Later youth admitted it was falseMalicious prosecution allegedShould have known b/c staff not allowed alone with inmates“If sexual abuse occurs, likely some policy is violated”

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Conclusions

Corrections officials can be held personally liable for poor investigationsCorrections agencies can be held liable for failure to train or superviseProactive policies can protect the agency and staff from liability.Corrections officials must know the culture of the agencyOfficials’ actions and policies must have credibility