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Sexual Assault

    Monthly Law Journal Article: Civil Liability for Sexual Assaults on Prisoners, 2007 (8) AELE Mo. L.J. 301.
    Monthly Law Journal Article: Transsexual Prisoners: Protection From Assault, 2009 (7) AELE Mo. L. J. 301.

     A woman claimed that an officer at a county jail sexually assaulted her while he was detained there. A federal appeals court upheld summary judgment for the sheriff and the jail administrator, as the plaintiff did not show that they were deliberately indifferent to known or obvious risks associated with hiring officers to work at the jail, so they were entitled to qualified immunity. The defendants were also entitled to qualified immunity with respect to plaintiff's inadequate training and supervision claims. In this case, it was not clearly established at the time of the alleged misconduct that the county sheriff and the jail administrator needed to make significant changes to their training, supervision, and policies in response to an incident of sexual abuse. Rivera v. Bonner, #16-10675, 2017 U.S. App. Lexis 12081 (5th Cir.).

     A federal jury awarded $6.7 million to a woman who claimed that she was repeatedly raped by a guard while she was being detained in a county jail. The guard was acting under his scope of employment when the sexual assaults occurred, the jury found, and therefore the county was liable for the damages amount. The jury also found there was "no legitimate government purpose" to shackle the woman during childbirth labor, delivering a child she was carrying before her incarceration, but jurors did not find she was injured and therefore awarded her no monetary damages on that claim. Jane Doe v. Cnty. of Milwaukee, #14-CV-200-JPS, U.S. Dist. Ct. (E.D. Wis. June 7, 2017), reported in the Washington Post (June 8, 2017).

     A civilly committed sex offender sued his treatment team at the facility where he was confined, claiming that another resident sexually assaulted him, that he was subsequently forced to continue group therapy sessions with his alleged assailant, and that the staff retaliated against him. Granted a jury trial on these claims, he was represented by law students. He appeared in person at his trial. During an offtherecord break after closing arguments, the judge removed him for transport back to his faculty. The court did not address this removal on the record and issued no cautionary jury instruction regarding his absence, but instructed the jury that its verdict must be unanimous. He was not present when the jury found in favor of the defendants. The judge asked whether the students wanted the jury polled, and a student, without consulting the plaintiff, said no. A federal appeals court affirmed the verdict. There was no evidence that the jury had questions during deliberation or had any reason to know that the plaintiff was not present during deliberations. Failing to poll the jury when it is clear that the verdict was unanimous, was a “minor matter.” Smego v. Payne, #13-2055, 2017 U.S. App. Lexis 6243 (7th Cir.).

  A woman incarcerated at an all-female state prison claimed that she was raped by a prison maintenance employee. She sued, claiming that prison officials, including the warden, violated her Eighth Amendment rights by creating an environment in which sexual misconduct was likely to occur. A federal appeals court ruled that qualified immunity should not have been granted to the defendant warden, since a reasonable jury could have concluded that he created an atmosphere where “policies were honored only in the breach, and, as a result, he failed to take reasonable measures to ensure inmates were safe from the risk of sexual misconduct” by employees. The plaintiff had a clearly established” constitutional right against sexual assault by prison employees. Inadequate training claims, however, were properly rejected. Keith v. Koerner, #15-3219, 843 F.3d 833 (10th Cir. 2016).
     A male detainee claimed that he was sexually assaulted twice by another male prisoner while in a county correctional facility. His lawsuit claimed that the county sheriff failed to protect him from a reasonably foreseeable hazard of sexual assault. The highest court in New York held that the lawsuit should not have been dismissed for failure to file a notice of claim on the county, since the county had a statutory duty to indemnify the sheriff on the claims presented. The complaint was otherwise sufficient to present a claim. Villar v. Howard, #153, 2016 NY Slip Op 06944, 28 N.Y.3d 74, 2016 N.Y. Lexis 3222, 64 N.E.3d 280.
     A prisoner in a medium-security prison was placed in a cell with another prisoner who sexually assaulted him 12 days later. That assailant was incarcerated for having sexually assaulted a woman. Both prisoners were classified as “medium security. The assailant had committed eight violations of the prison’s rule in the past two years, but no sexual offenses, only offenses such as fighting, lying, theft, etc. Criminal charges were filed against him on the sexual assault. A federal appeals court upheld the dismissal of the lawsuit, upholding a practice of random assignment of cellmates. The court noted the prison’s compliance with the notification requirements of the 2003 Prison Rape Elimination Act, 42 U.S.C. 15601–15609, and that there was no evidence that plaintiff expressed any concern about being vulnerable to sexual assault. The prison staff was apparently unaware that the plaintiff was perceived by other prisoners to be homosexual, and there was no evidence of such a perception, apart from the plaintiff’s unsupported claim. Ramos v. Hamblin, #15-3052, 840 F.3d 442 (7th Cir. 2016).
     Eight female alien detainees sued under both 42 U.S.C. Sec. 1983 and the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., claiming that a male corrections officer at a privately run prison had sexually assaulted them. Sec. 1983 claims were properly dismissed against the company running the facility and its facility administrator, as well as summary judgment granted on that claim against the officer, since the detention of the plaintiffs according to ICE specifications was carried out under federal law, not under color of state law as required for a Sec. 1983 claim. Claims against the county, which had almost no involvement in the facility's operation, were also rejected. The appeals court also upheld the rejection of FTCA against the U.S. government, as there was no evidence that ICE officials acted with deliberate indifference. Doe v. United States, #15-50331, 2016 U.S. App. Lexis 13696 (6th Cir.).
     A female inmate was handcuffed and in leg restraints in a holding cell in the medical unit of a Criminal Justice Center. Two detention officers on duty there were called away to assist with a medical emergency elsewhere. During their absence, a male inmate entered her unlocked holding cell and allegedly raped her. The female inmate sued the two officers individually, and the county sheriff individually and in his official capacity for allegedly acting with deliberate indifference to the risk of the rape in violation of the Eighth Amendment. The three defendants appealed from the denial of their motions for qualified immunity. The appeals court rejected the appeals by one detention officer and the sheriff in his individual capacity, because their appeals did not turn on discrete questions of law, but instead asked the appeals court to resolve questions of fact as to whether the officer knew the cell door was unlocked, and whether the sheriff was aware of the risk of sexual assaults based on alleged understaffing, the lack of video surveillance, and prior sexual assaults. Qualified immunity was granted to the second officer, however, as the plaintiff could not show that he violated a clearly established constitutional right, since this officer left the unit first and the plaintiff presented no evidence to contradict their statement that they did not know that the cell door was unlocked. Henderson v. Glanz, #14-5077, 2015 U.S. App. Lexis 22729 (10th Cir.).
     Two former inmates sued for alleged sexual abuse by a male guard, claiming that he fondled their genitals for personal gratification without any legitimate penological justification. The trial court improperly dismissed the complaint for failure to state a claim, as the allegations, if true, would violate the Eighth Amendment. Crawford v. Cuomo, #14-969, 2015 U.S. App. Lexis 14023 (2nd Cir.).
      A prisoner claimed that an assistant caseworker at the facility where he was incarcerated violated his Eighth Amendment rights by failing to protect him from sexual assault by another prisoner. A federal appeals court rejected an interlocutory appeal from the trial court's denial of qualified immunity to the defendant based on the existence of factual disputes. As the defendant challenged the trial court's finding that there was sufficient evidence to warrant a trial, he was essentially asking the appeals court to engage in "the time-consuming task of reviewing a factual controversy about intent," which it would not do. Franklin v. Young, #14-2151, 2015 U.S. App. Lexis 10739 (8th Cir.).
     Female inmates at an Oklahoma facility were given work assignments to perform landscaping work and grounds maintenance at the governor's mansion. They claimed that they were sexually assaulted and harassed by their off-site supervisor, the mansion's groundskeeper, and a cook at the mansion. Their lawsuit claimed that two guards at the prison were aware of this, but did nothing to prevent it. Upholding the denial of qualified immunity to the two guards, a federal appeals court dismissed one guard's appeal for want of jurisdiction as she only challenged the trial court's determination that the plaintiffs presented sufficient evidence to survive summary judgment. It rejected the second guard's argument that a prison guard who knows of, yet fails to reasonably respond to, a risk of harm created by another person can only be liable if the perpetrator is a subordinate. Castillo v. Day, #14-6050, 2015 U.S. App. Lexis 10509 (10th Cir.).
    A prisoner claimed that he had been repeatedly sexually and physically assaulted by his cellmate and the cellmate's gang associates, that he lodged multiple complaints about this, but that six prison officials acted with deliberate indifference to a substantial risk of injury to him. The trial court ruled that his claims failed because the defendant officials did not actually know about the risk. A federal appeals court vacated this judgment as to three defendants, ordering reconsideration. The appeals court stated that the subjective "actual knowledge required for a finding of deliberate indifference can be proved by "circumstantial" evidence, and that prison officials can be held liable when a risk is "so obvious" that it had to be known. The plaintiff was a short, middle-aged prisoner with both mental and physical problems that made him vulnerable to attacks and harassment. Since the trial court applied the wrong legal framework in considering this, further proceedings were required. The prisoner failed to preserve his objection to the dismissal of his claims against three other defendants. Makdessi v. Lt. Fields, #13-7606, 2015 U.S. App. Lexis 3883 (4th Cir.).
     A D.C. prisoner was incarcerated for over two decades in both federal and state prisons on a conviction for raping and robbing a woman in 1981 when he was 18. After his parole, he was required to register as a sex offender, limiting his employment, housing, and other opportunities. During his incarceration, he suffered multiple instances of several sexual and physical assaults, and contracted HIV. In 2012, at the age of 50, he was exonerated and determined to be actually innocent of the robbery and rape, based on DNA evidence. He reached a settlement of claims against the federal government under the Unjust Convictions Act, 28 U.S.C. Secs. 1495 and 2513, and the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. of $1,128,082.19, based on $50,000 times the 22.56 years he was incarcerated. Continuing to pursue his claims against the District of Columbia under the D.C. Unjust Imprisonment Act, D.C. Code Sec. 2-421 et. seq., he was awarded $9,154,500 in damages for wrongful conviction, unjust imprisonment, sexual and physical assaults, contracting HIV, lost income, and physical and psychological injuries. A D.C. court found that his wrongful conviction and unjust imprisonment had been a proximate cause of all these damages. It also rejected an argument that D.C. was entitled to an offset from the award for the amount of the plaintiff's settlement with the federal government. Odom v. District of Columbia, #2013-CA-3239, 2015 D.C. Super. Lexis 2.
     A ward at a Hawaii youth correctional facility received a jury award on claims that a male youth correctional officer sexually assaulted her, and against a number of other defendants. The officer's motion for a new trial was granted, however, because there was an irreconcilable conflict in the jury's answers to various special verdict questions that rendered it impossible to determine what each defendant was to pay. The retrial would be limited to the amount of general and special damages each defendant was to pay, and whether the awards were against each defendant in their individual or official capacities. A state statute did not bar the plaintiff from obtaining judgment both against the state and against the individual officer. Costales v. Rosete, #SCWC-30683, 133 Haw. 124, 324 P.3d 934 (2014).
     A teenage pretrial detainee was sexually assaulted by an older heavier registered sex offender while in a county jail. The appeals court held that the plaintiff had to show that the defendant sheriff and jail administrator personally knew of the constitutional risk posed by their alleged inadequate training or supervision and proximately caused his injuries by failing to take required remedial action. Findings of fact by the trial court so far showed that the jail administrator was not presently entitled to qualified immunity as it was alleged that he failed to train a jailer concerning the jail's policy of locking all cell doors overnight. The sheriff, however, was granted qualified immunity, as there was nothing presented but conjecture to refute his testimony that he did not know about a substantial risk arising from the administrator's failure to train the jailer. Walton v. Dawson, #12-4000, 2014 U.S. App. Lexis 9304 (8th Cir.).
     Female immigration detainees, who were ordered released after presenting a prima facie case for asylum, claimed that they were each sexually assaulted by a male employee of a private prison company while he was transporting them from an immigration detention center where they had been interviewed to a bus station or airport, with no other officers present. He pled guilty to federal and state charges stemming from the assaults. While two defendant federal officials knew of a contractual requirement that such transported immigration detainees be escorted by at least one officer of the same gender, and that the aim of this was to deter such assaults, their alleged failure to take action to enforce that condition did not violate a clearly established constitutional right. Doe v. Robertson, #13-50459, 2014 U.S. App. Lexis 8534 (5th Cir.).
     Two guards who had sex with a female prisoner in solitary confinement in a county jail confessed to doing so and were fired. The prisoner sued the two guards and the county sheriff, seeking damages. A federal appeals court ruled that the defendants were properly granted summary judgment because the sexual acts had been consensual. The court stated that while "we recognize a need to examine consent carefully in the prison context, this case does not present a factual issue with regard to" the prisoner's consent. Graham v. Sheriff of Logan County, #12-6302, 2013 U.S. App. Lexis 25401 (10th Cir.).
     The U.S. government can be sued under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(h) for an alleged sexual assault by guards, according to a unanimous U.S. Supreme Court decision. The statute waives the federal government's sovereign immunity from tort lawsuits, but contains exceptions for intentional acts. An exception to the exception extends the waiver to claims for six intentional torts, including assault and battery that are based on acts or omissions of an “investigative or law enforcement officer” “who is empowered by law to execute searches, to seize evidence, or to make arrests.” The U.S. Supreme Court ruled that this applied to acts of officers within the scope of their employment when they have legal authority, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. It did apply to a correctional officer's alleged sexual assault on a prisoner. Millbrook v. United States, #11-10362, 2013 U.S. Lexis 2543.
     A female former prisoner claimed that her instructor at the facility engaged in unlawful sexual acts with her and got her pregnant. A federal appeals court found that her lawsuit adequately stated a claim against a former warden for allegedly creating and allowing a policy or culture of sexual misconduct to exist at the facility, and failed to take reasonable measures to abate it. There were facts cited from an audit report that could support a conclusion that the ex-warden had been aware of multiple incidents of unlawful sexual conduct at the facility, and that the discipline surrounding such incidents was inconsistent. She adequately alleged facts that would tend to show structural policy problems that contributed to the alleged unlawful sexual conduct. Keith v. Koerner, #12-3101, 2013 U.S. App. Lexis 2924 (10th Cir.).
      A prisoner transported to a county detention center for a court hearing raped another prisoner there. When correctional officials learned of the pending criminal rape charges stemming from the incident, they also initiated disciplinary charges. A disciplinary officer concluded that the prisoner was guilty of disciplinary infractions involving rape and threats to other prisoners and imposed a loss of 69 days earned good time, as well as sending him to disciplinary segregation for 455 days. The prisoner was subsequently convicted of criminal charges. He challenged the disciplinary determination, arguing that his due process rights had been violated by denying him the right to call witnesses or elicit written testimony at the hearing. The New Mexico Supreme Court reversed a trial court ruling overturning the discipline. "In focusing on Petitioner's procedural due process rights, the district court appears to have lost sight of the reason for such a hearing. The court failed to appreciate the significance of the intervening criminal convictions - not to whether due process was violated - but, pivotally, to what remedy was appropriate under the circumstances." Perry v. Moya, #32,938, 2012-NMSC-040, 289 P.3d 1247, 2012 N.M. Lexis 415.
    Three female inmates who had been confined to a county substance abuse treatment facility could not pursue premises liability claims against the state based on alleged sexual assaults by officers because of state law immunity for liability for the intentional torts of employees. The Texas Supreme Court rejected arguments that the immunity was waived because the officers allegedly made use of tangible property such as a laundry room or cart to carry out the assaults. There was no claim that the property was inherently unsafe, and the officers allegedly used it intentionally to carry out the assaults, so such use was within the immunity of the state and its agencies for intentional wrongdoing by employees. Texas Dep't of Criminal Justice v. Campos, #11-0728, 2012 Tex. Lexis 900, 56 Tex. Sup. Ct. J. 75
     The U.S. Justice Department released a letter of findings stating that its investigation determined that Topeka Correctional Facility (TCF), an all-female facility in Topeka, Kan., under the jurisdiction of the Kansas Department of Corrections (KDOC), failed to protect women prisoners from harm due to sexual abuse and misconduct from correctional staff and other prisoners in violation of their Eighth Amendment constitutional rights. The letter recommends a series of remedial actions, including changes in policy, staffing, correctional practices, training, investigations, grievances, and compliance with the provisions of the National Standards to Prevent, Detect, and Respond to Prison Rape, 28 C.F.R. Part 115. Letter of Findings, re: Investigation of the Topeka Correctional Facility, Civil Rights Division, U.S. Dept. of Justice (Sept. 6, 2012).
     A prison guard allegedly spent five to seven seconds fondling a clothed pretrial detainee's genitals during a pat down search, as well as another two or three seconds doing so during a subsequent strip search, despite the detainee's verbal protests. Reversing summary judgment for the defendant guard in the detainee's lawsuit, a federal appeals court stated that "an unwanted touching of a person's private parts, intended to humiliate the victim or gratify the assailant's sexual desires, can violate a prisoner's constitutional rights whether or not the 'force' exerted by the assailant is significant." The trial court's mention of "de minimus injury" inappropriately invoked excessive force cases. Washington v. Hively, #12–1657, 2012 U.S. App. Lexis 17426 (7th Cir.).
     A male prisoner's lawsuit claimed that a female prison guard violated his First, Fourth, and Eighth Amendment rights by perpetrating "romantic but not sexual" acts on him without consent, and that other prison officials failed to protect him against such conduct. He claimed that she touched him inappropriately, placing her hand on his groin and, in a subsequent incident, stroking his penis. A federal appeals court reversed summary judgment for the defendants, since the prisoner was entitled to a presumption that the conduct was not consensual and alleged that it constituted sexual abuse, serving no legitimate purpose. The defendants had not met a burden of showing that the conduct at issue was not coercive. Because of "the enormous power imbalance between prisoners and prison guards, labeling a prisoner's decision to engage in sexual conduct in prison as 'consent' is a dubious proposition." The appeals court upheld, however, the trial court's rejection of deliberate indifference and retaliation claims by the prisoner. Wood v. Beauclair, #10-35300, 2012 U.S. App. Lexis 18575 (9th Cir.).
     A jury awarded $500,000 to a female pretrial detainee against a county on her claim that a male sheriff's deputy raped her while she was in custody. The trial court erroneously set this award aside, a federal appeals court ruled, and stated that the mere fact that a county policy prohibited such sexual misconduct was an inadequate defense. "No County policy prohibited a single deputy of one sex from being alone with a prisoner of another sex. Nor were any monitoring devices, such as surveillance cameras, ever employed to supervise such one-on-one interactions." Cash v. County of Erie, #09-4371, 2011 U.S. App. Lexis 17163 (2nd Cir.)
     Present and former female inmates of New York state prisons could pursue class action claims for injunctive and declaratory relief, seeking protective measures against what they asserted was a pattern of sexual molestation by prison guards. The fact that some of them had been released did not make their claims moot, since they alleged misconduct which was capable of repetition, but which would evade review if the mootness doctrine was applied. Amador v. Andrews, #08-2079, 2011 U.S. App. Lexis 17440 (2nd Cir.)
     An Ohio prisoner sued the state for damages based on his claim that a nurse touched him in an inappropriate sexual manner. The nurse was not entitled to civil immunity under state law, and, as a result, the state agency could not be held vicariously liable. Under state law, an employer is not vicariously liable for the "self-serving" acts of employees that do not serve to facilitate or promote the employer's business. The court also rejected claims based on negligent hiring, retention, and supervision, since there was no evidence that the state agency had any reason to believe that the nurse would engage in sexual misconduct with a prisoner, and there was no evidence calling into question the nurse's supervision or training. Garrett v. Ohio Dept. of Rehabilitation and Correction, #2009-04858, 2010 Ohio Misc. Lexis 73 (Ct. of Claims).
     A former prisoner in an Ohio facility claimed that a correctional officer had sexually assaulted her on two consecutive nights, and sued two superintending prison officers, a case manager on her living unit, and a prison investigator. She claimed that the case manager failed to take any action to prevent the second assault after she reported the first one, and that the investigator retaliated against her for her accusations by placing her, shackled and handcuffed, in solitary confinement in a cell without adequate heat, clothing, bedding, or blankets. The trial court denied the defendants summary judgment on the basis of qualified immunity, finding that there were disputed material issues of fact, and the defendants did not appeal that ruling. After a full trial, a jury awarded the plaintiff $350,000 in compensatory and punitive damages against the case manager and $275,000 against the investigator. The defendants did not then file a motion seeking judgment as a matter of law after the verdict, nor did they seek a new trial. Instead, they argued, on appeal, that the trial court should have granted their motion for summary judgment on the basis of qualified immunity. A federal appeals court agreed, and reversed the jury's verdict. The U.S. Supreme Court disagreed, reversing the appeals court, and holding that a party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits. There was no "purely legal" issue of qualified immunity preserved for appeal, as the dispute was not over what the pre-existing law was, but instead what the facts were--such as whether the case manager was adequately informed, after the first attack, of the assailant's identity. The defendants could not argue, on appeal, that the plaintiff had not proven her case, as they failed to raise an issue of the sufficiency of the evidence by a post-judgment motion for judgment as a matter of law. Ortiz v. Jordan, #09–737, 2011 U.S. Lexis 915.
     After a detainee in a county jail told a deputy that he was having trouble with other prisoners, she told him to move his mattress into a day room attached to the cellblock, where he would be directly in her line of sight at all times. Despite this, he was sexually assaulted in the afternoon after this deputy's shift ended. The deputy who relieved her did not see the attack. Jail officials were unable to identify who staged the attack, partially because the victim's account of the incident was inconsistent with the physical evidence. Upholding summary judgment for the county in the detainee's lawsuit, a federal appeals court found no evidence of deliberate indifference by any jail personnel, and any failure to observe or prevent the attack was, at most, negligence, which is inadequate for a federal civil rights claim. The county had taken significant steps to try to protect inmate safety, including moving prisoners who face special threats to separate cellblocks, and providing for deputies to be able to directly observe nearly the entire cellblock. There was no evidence that any county custom or policy caused the attack. Brown v. Harris County, Texas, #10-20213, 2010 U.S. App. Lexis 25569 (Unpub. 9th Cir.).
     A correctional officer was prosecuted for custodial sexual misconduct while working in the county jail's women's division, and terminated. He was acquitted of the criminal charges in state court. He sued, asserting claims for race and gender discrimination. The appeals court found no evidence of race or gender discrimination. The court noted that there was a lower standard of proof as to the termination than was required for the criminal proceeding. Egonmwan v. Cook County Sheriff's Dep't, #09-2764, 602 F.3d 845 (7th Cir. 2010).
     A former Cook County corrections officer who was prosecuted for custodial sexual misconduct while working in the women's section of a jail was later acquitted of the charges. Rejecting constructive discharge, race and gender discrimination, and malicious prosecution claims, a federal court found no evidence of race or gender discrimination, and noted that, as to the malicious prosecution claim, Illinois law regards a grand jury indictment as prima facie evidence of probable cause for a prosecution. Swearnigen-El v. Cook County Sheriff's Dep't, #09-2709, 602 F.3d 852 (7th Cir. 2010).
     Reacting to reports of male correctional officers engaging in sexual abuse of female prisoners, the State of Nevada adopted a policy of hiring only female correctional lieutenants at a women's prison to serve as shift supervisors. Four male correctional officers filed a Title VII lawsuit challenging the policy as unlawful sex discrimination. Overturning summary judgment for the defendants, a federal appeals court found that they had not shown that "all or nearly all" males, if placed in supervisory positions, would tolerate male officers' sexual abuse of female inmates, or that an individual assessment of applicants on this issue would be impossible or highly impractical. The court further emphasized that the law protects the ability of applicants and employees to pursue their career goals without sex discrimination, and that the fact that all those of the same sex faced the same disadvantage did not justify the policy. The court rejected arguments that the policy only imposed a minimal restriction on male prison employees' promotional opportunities, or that the sex discrimination, in this instance, constituted a bona fide occupational qualification. Breiner v. Nev. Dep't of Corr., #09-15568, 2010 U.S. App. Lexis 13933 (9th Cir.).
      A former inmate claimed that she was sexually assaulted by a corrections officer, and sued for intentional infliction of emotional distress and negligent supervision. She claimed that her failure to file her lawsuit within a two-year statute of limitations should be excused, based on her alleged inability to pursue her legal remedies during her imprisonment because of the officer's continuing threats. The court rejected this, as the officer had not been employed at the facility for five years before the lawsuit was filed. Gilley v. Ohio Reformatory for Women, #2009-05030, 2010 Ohio Misc. Lexis 41 (Ct. of Claims).
    A former Ohio prisoner claimed that she was sexually assaulted by a prison guard on two successive nights, the second incident occurring on the guard's last day on the job, and that prison officials failed to properly protect her against the second assault, as well as retaliating against her for reporting the incident. A jury found in favor of her and against the two prison officials, awarding $625,000 in compensatory and punitive damages. A federal appeals court found that the two officials were entitled to qualified immunity, as they did not act with deliberate indifference to a known risk of harm. The U.S. Supreme Court has granted review of this case, and the Court's decision will be reported in a future issue of this publication. Ortiz v. Jordan, 316 Fed. Appx. 449, 2009 U.S. App. Lexis 5245 (Unpub. 6th Cir.), cert. granted, #09-737, 2010 U.S. Lexis 3524.
     A female prisoner being transported was placed in a van with four male prisoners. The van was allegedly very dark and she was instructed where to sit. During the transport, she claimed, a male prisoner in the same caged area as her within the van managed to remove his hand restraints, grab her arm, sit her on his lap, pull her pants down, and rape her. A federal appeals court, overturning summary judgment for the defendant officers on a failure to protect claim, found that there was evidence from which a factfinder could conclude that they acted with deliberate indifference towards a substantial risk to her safety Whitson v. Stone County Jail, #08-1468, 2010 U.S. App. Lexis 8299 (8th Cir.).
     A county sheriff hired a deputy, who was a allegedly provided with little or no training. The deputy was first assigned duties as a jailer, and later as a "road deputy." During his last week on the job, after resigning to pursue a position with the state Department of Corrections, he encountered a female employee at a convenience store who asked his advice on some legal problems. She declined his offer to go on a date with him. Learning that she had several outstanding arrest warrants, and owed approximately $800 in fees and fines, he drove to the store on his last day on the job, arrested her, and transported her to the jail, telling her that he would not have done so if she had agreed to the date. At the jail, the deputy bet a jailer that he could get the arrestee to reveal her breasts. He then told the arrestee that he could get her fines reduced if she would show him her breasts, and she eventually complied. He then allegedly grabbed her exposed breast. She sued the deputy and the sheriff, claiming that the sheriff failed to properly train the deputy. The deputy was also arrested and pled guilty to second degree sexual assault. The deputy had received a policy manual, but had not been required to read it, and, in fact, did not read it. He was scheduled to attend a training academy, but had not yet attended it at the time of the incident. The trial court found the deputy liable, as well as the sheriff in his official capacity, while granting the sheriff qualified immunity in his individual capacity. A federal appeals court overturned the inadequate training liability, noting that there was no duty specified in state statutes for sheriffs to train subordinates not to sexually assault detainees, and that there had been no past pattern of such conduct by the sheriff's deputies that would have put him on notice about the need for such training. Additionally, since a reasonable officer would know that intentionally sexually assaulting a detainee was illegal, and the deputy admitted that he knew "that such conduct was impermissible," the plaintiff failed to show that the lack of training caused the assault. Parrish v. Ball, #08-3517, 2010 U.S. App. Lexis 2748 (8th Cir.).
     There were sufficient facts alleged to allow a prisoner to proceed on her claims that prison officials failed to adequately train, supervise, or investigate a prison guard's alleged yearlong sexual encounters with her. The court declined to accept the defendant officials' argument that they were entitled to qualified immunity on the basis that the plaintiff prisoner had denied a sexual relationship existed when she was questioned. The prisoner's environment was "fully controlled" by the officials and they had a "wide range" of methods to investigate repeated reports of sexual misconduct and to monitor her activities. The plaintiff, while a prisoner, was subject to "coercive dynamics" frequently present among the incarcerated. Chao v. Ballista, #07cv10934, 2009 U.S. Dist. Lexis 56948 (W.D. Mass.).
     The state of Michigan will pay a total of $100 million in settlement of a class action lawsuit by over 500 female prisoners who said that they suffered sexual assaults by prison guards. As part of the settlement, the state dropped an appeal of two verdicts for 18 women, which totaled almost $24 million. The settlement will be paid in six payments over five years. In the lawsuit, pending since the 1990s, women claimed that guards in Michigan correctional facilities sexually abused them, and that prison officials ignored reports by human rights groups that included warnings that male officers were "preying" on female prisoners. One of the named plaintiffs in the lawsuit stated that she was raped eight times by prison guards during her incarceration from 1993-1996. $28 million of the settlement will pay for lawyers' fees in the case, and is reportedly for 30,000 hours of time. Bunton v. Dept. of Corrections, Washtenaw County Circuit Court, Michigan, reported in Detroit Free Press, July 16. 2009. To read a special report by the newspaper's reporters on the lawsuit, click here. In a January 2009 decision, the Michigan Court of Appeals upheld a $15.5 million award to 10 female prisoners concerning their sexual assault by officers at Michigan's Scott Correctional Facility, and stated that the defendants' arguments, raised on appeal, were "disingenuous," "fundamentally flawed" and "muddled," finding that there was sufficient evidence" for the jury's award. In that case, it was alleged that approximately 30% of the male staff at Scott were involved in sexual assaults. A further appeal to the Michigan Supreme Court was dropped as part of the settlement. Neal v. Dept. of Corrections, #28532, 2009 Mich. App. Lexis 182 (Unpub.).
      A former pre-trial detainee at a county jail, who was allegedly raped and sodomized by a deputy there, failed to show that the sheriff was aware of any sexual misconduct at the facility prior to the incident at issue. The court rejected her claims against the sheriff for deliberate indifference based on purported policies of underfunding, understaffing, inadequate training, and allowing male deputies to escort female prisoners without supervision. Boyd v. Nichols, #7:08-cv-26, 2009 U.S. Dist. Lexis 37750 (M.D. Ga.).
         A female pretrial detainee claimed that a trainee corrections officer at a jail had entered her cell three times at night and forced sexual contact on her. A jury awarded her $500,00 in compensatory damages, and $600,000 in punitive damages. The trial court ordered that 1% of the damage award be applied to an award of attorneys' fees to the plaintiff. Upholding the damage awards, the appeals court ruled that the trial court did not act erroneously in finding that the defendant officer's attorney, in using all three of his peremptory jury challenges to attempt to remove females from the jury, engaged in gender-based discrimination, rejecting purported gender-neutral reasons offered for the challenges. Jury instructions properly told the jury to take into account the nature and extent of the plaintiff's injuries in assessing damages, and to consider whether those injuries were temporary or permanent. The appeals court ordered further proceedings on the proper amount of attorneys' fees to be awarded. Kahle v. Leonard, #08-1647/08-2578, 2009 U.S. App. Lexis 8908 (8th Cir.).
     A jailer was not entitled to qualified immunity in a lawsuit seeking to impose liability for a male inmate's alleged rape of a female inmate at the jail. The jailer knew that he violated a jail policy by allowing a male inmate to remain closed in a female detainee's cell for ten minutes, and that the purpose of the policy was to prevent sexual assaults. Hostetler v. Green, #08-7029, 2009 U.S. App. Lexis 7965 (Unpub 10th Cir.).
     Prisoner's lawsuit claiming that a correctional officer twice confined her in an isolated locked classroom and imposed physical and verbal abuse on her, including forcible rape, established liability for violation of constitutional rights as well as state law claims, since the officer failed to respond to the accusations. The prisoner failed, however, to establish a claim for emotional distress under New York state law, since she failed to assert that the officer acted with the intent or disregard of a substantial probability to cause severe emotional distress. Further proceedings were required on the amount of damages to be awarded. Ortiz v. Lasker, 08-CV-6001, 2008 U.S. Dist. Lexis 101363 (W.D.N.Y.).
     When detainee-on-detainee violence was "very rare" and there was no prior complaint by a detainee of sexual assault at the juvenile detention facility, a juvenile detainee allegedly raped by another detainee failed to show deliberate indifference to the risk of such an assault. Officers' alleged failure to provide assistance to the plaintiff detainee might constitute negligence, but was hardly deliberate indifference. The defendant juvenile detention officers, however, did not have discretion under state law to leave a detainee at the facility unsupervised, but allegedly did "exactly that," so that they were not entitled to "state agent immunity" under Alabama law on state law negligence, recklessness, and wantonness claims.  D.S. v. County of Montgomery, Alabama, No. 07-15671, 2008 U.S. App. Lexis 14237 (Unpub. 11th Cir.).
     An inmate's action of kissing a nurse on the cheek was insufficient to support disciplinary charges against him for "soliciting a sexual act." Despite the nurse's testimony that the inmate did not harass her, however, the rule against harassment was broad enough to cover the prisoner's conduct. The court ordered expunging from the prisoner's record of all references to the charge of "soliciting a sexual act." Wells v. Dubray, No. 504063, 2008 N.Y. App. Div. Lexis 6255 (A.D. 3rd Dept.).
     Female inmate adequately alleged that she was sexually assaulted by correctional personnel, and that certain supervisory personnel failed to intervene and protect her from unwanted sexual contact by knowingly allowing officers who had sexually harassed her to remain in contact with her. Knight v. Simpson, Civil Action No. 3:08-CV-0495, 2008 U.S. Dist. Lexis 36631 (M.D. Pa.).
     While severe or repetitive sexual abuse by a correctional officer could be serious enough to violate the Eighth Amendment, a prisoner's claim that he was subject to excessive and intrusive body searches, including the handling of his penis, on three occasions, did not amount to such a violation. These, the court found, were minor, isolated incidents, and that, whatever the officers' motivations for these actions, the searches were conducted in a private location, and in a reasonable manner without humiliation, physical injury, or "undue" intrusion, and were justified by a purpose of locating contraband. Williams v. Fitch, No. 04-CV-6440, 2008 U.S. Dist. Lexis 36481 (W.D.N.Y.).
     Evidence was present from which a jury could find that a sheriff was aware of conditions in the county jail which were likely to result in the sexual assault of the plaintiff, a female detainee. The evidence included facts about two prior alleged sexual assaults on female prisoners by male correctional officers. These prior assaults were held, in the prior case of Gonzales v. Martinez, #31348, 403 F.3d 1179 (10th Cir. 2005) to be the product of "unconstitutional jail conditions maintained through the deliberate indifference" of Sheriff Salazar, the defendant in the immediate case. The plaintiff in the immediate case was allegedly sexually assaulted in the jail twice in December of 2001, three years after the prior two assaults. Summary judgment for the defendant sheriff was therefore reversed. Tafoya v. Salazar, No. 06-1191 2008 U.S. App. Lexis 3740 (10th Cir.).
     At the time the plaintiff inmate was allegedly sexually assaulted by a guard, defendant correctional officials only knew that he had previously been accused of sexually assaulting one other prisoner. Given that the guard denied that prior allegation, the officials' response in beginning an investigation, rather than immediately firing the guard, was not objectively unreasonable, so that the officials could not be held liable for the alleged sexual assault of the plaintiff prisoner. Doe v. Georgia Dept. of Corrections, No. 06-15915, 2007 U.S. App. Lexis 19676 (11th Cir.).
     County did not act with deliberate indifference in hiring a correctional officer who had previously been fired from his job at a high school based on an accusation of making improper sexual advances to students, and who subsequently allegedly raped a female inmate. The county's failure to follow up to learn the circumstances of the guard's termination from the school was, at most, negligence, which was insufficient for federal civil rights liability, and the circumstances of that termination would not necessarily show that the guard was likely to rape an inmate. Additionally, the fact that the guard was reprimanded several times for touching inmates but was not fired showed, at most, negligence, and also did not suffice to establish liability based on inadequate supervision. Hardeman v. Kerr County, No. 06-50636, 2007 U.S. App. Lexis 18830 (5th Cir.).
     A detainee's affidavit that she was subjected to a sexual assault by a correctional officer was adequate to bar summary judgment on her state law claim for intentional infliction of emotional distress. Further, at the time of the alleged incident, the officer was involved in the performance of his job duties, which included supervising the plaintiff and other inmates in a medical unit, so that a claim for assault and battery against the employer would also go forward. The court rejected, however, negligent hiring and retention claims, since there was no evidence that the employer knew, at the time that the officer was hired, that he had any propensity to sexually assault a prisoner. Heckenlaible v. Virginia Peninsula Regional Jail Authority, No. 4:06cv25, 2007 U.S.Dist. Lexis 43256 (E.D. Va.).
     Federal prison officer did not act within the scope of his employment during his alleged sexual assault on a female prisoner. His alleged wrongful actions did not arise from a legitimate employment duty or goal furthering his employer's interests. The fact that the officer was successfully criminally prosecuted for abuse of a ward under 18 U.S.C. Sec. 2243(b) did not bar the U.S. government from denying that the officer was acting outside of the scope of his employment, because a conviction for that offense did not establish, under Texas state law, that the officer acted within the scope of his employment. Accordingly, the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) sovereign immunity waiver did not apply. Shirley v. U.S., No. 06-10654, 2007 U.S. App. Lexis 11696 (5th Cir.).
     New York corrections department was liable for damages for sexual assault on prisoner when it failed to comply with a criminal court judge's order that he be placed in protective custody based on prior sexual assaults against him while in a jail's general population. Further proceedings ordered on the amount of damages to be awarded. Hunt v. New York, 9623-9624, Claim 101841, 2007 N.Y. App. Div. Lexis 602 (1st Dept.).
     While the U.S. government was not liable for the intentional actions of one federal prison guard who was convicted of sexual assault of an inmate, there was an issue of material fact as to whether two other guards, who allegedly brought the inmate to that guard at his request, giving him unmonitored access to a female prisoner, in violation of prison regulations, after midnight, led to the assault. Summary judgment denied on plaintiff prisoner's lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346. Davis v. U.S., 3:03-CV-0415, 2007 U.S. Dist. Lexis 11198 (N.D. Tex.).
     Deputy who served as supervisor at county jail was not entitled to summary judgment in female detainee's lawsuit claiming that he had been deliberately indifferent to the risk that a correctional officer would sexually assault her. The deputy himself stated that no officer was authorized to go into a detainee's cell after lockdown, but that he knew that a trainee officer went into the plaintiff detainee's cell three times within an hour after lockdown. The detainee's right to be protected against sexual assault was clearly established, so that the supervisor was not entitled to qualified immunity. Kahle v. Leonard, No. 06-2485, 2007 U.S. App. Lexis 3107 (8th Cir.). [N/R]
     Correctional officer did not act with deliberate indifference by placing an inmate in a cell with inmates who had previously sexually assaulted him when she did not have knowledge of that prior attack, and removed him from the cell as soon as he made a request that she do so. Allen v. York County Jail, No. 06-1461, 2007 U.S. App. Lexis 1436 (1st Cir.). [N/R]
     Prisoner asserted a viable claim for sexual assault during a strip search by alleging that an officer pressed his own penis against the inmate's buttocks and also made "inappropriate" statements during the search. Bromell v. Idaho Dept. of Corrections, No. CV05-419, 2006 U.S. Dist. Lexis 80804 (D. Idaho). [N/R]
     Prisoner could pursue his claim that Bureau of Prisons (BOP) officers lost his personal property, since immunity for law enforcement officers for such losses under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(c) did not apply to those officers. Mendez v. U.S., No. 05-1716, 2006 U.S. Dist. Lexis 76099 (D.N.J.). [N/R]
    Federal appeals court orders a new trial in lawsuit by prisoner claiming that housing unit manager improperly denied his request for protective custody after his cellmate allegedly raped him, resulting in multiple subsequent rapes. Trial judge improperly told the jury, in response to their question, that there was "no evidence presented" about prior complaints about the defendant denying requests for protective custody, rather than instructing them that their question was irrelevant, after which the jury quickly found for the defendant. Conley v. Very, No. 05-2650, 2006 U.S. App. Lexis 15548 (8th Cir.). [2006 JB Aug]
     Prisoner allegedly sexually assaulted in another prisoner's cell after being brought there by a prison guard failed to show that other prison officials violated his constitutional rights in failing to protect him. Rather than acting with deliberate indifference, prison officials promptly acted to transfer him to another facility for his protection after learning that he felt unsafe, even in protective custody. Prisoner is awarded $6,000 in damages in default judgment against prison guard. Further proceedings ordered on whether Florida prisoner incarcerated in Kansas for protective reasons was still a citizen of Florida, entitled to federal court jurisdiction over his Kansas state-law claims against Kansas prison officials. Smith v. Cummings, No. 05-3180. 445 F.3d 1254 (10th Cir. 2006). [2006 JB Jul]
     Wisconsin inmate stated a viable claim for sexual assault based on officer's alleged grabbing of his buttocks and fondling of his penis during a pat down search, as well as a viable civil rights claim against a second officer who allegedly held him and laughed during the encounter. Turner v. Huibregtse, No. 05-C-508, 421 F. Supp. 2d 1149 (W.D. Wis. 2006). [N/R]
     Juvenile facility in Hawaii ordered to take steps to remedy "pervasive" sexual, physical, and verbal abuse of lesbian, gay, bisexual, or transgender juvenile wards, and to stop, except in emergencies, using isolation as a means of "protecting" such wards against abuse and harassment. Court rejects, however, the claim that staff members violated the First Amendment rights of the juveniles by quoting from the Bible or discussing religion with them, when there was no evidence that these actions were based on the facility's policies. R.G. v. Koller, No. Civ.05-00566, 415 F. Supp. 2d 1129 (D. Hawaii 2006). Subsequent decision at 2006 U.S. Dist. Lexis 21254. [2006 JB Jun]
     Prison records requested by inmate under New York Freedom of Information Law, relating to an investigation of his claim that a correctional officer sexually assaulted him, were not subject to disclosure based on an exemption in the law for information that could endanger a person's life or safety, based on court's review of the documents at issue. John H. v. Goord, 809 N.Y.S.2d 682 (A.D. 3rd Dept. 2006). [N/R]
     Female prisoner could not pursue lawsuit over her alleged gang rape by male prisoners over thirty years earlier. Her claims were barred by the applicable statute of limitations, and it could not reasonably be concluded that she was mentally ill from 1971 until 1996, thereby extending the statute. Douglas v. York County, No. 05-1940, 433 F.3d 143 (1st Cir. 2005). [2006 JB Apr]
     Male prisoner's claim that female guard made him strip naked and masturbate for her enjoyment, if true, was a violation of his privacy rights, but not "cruel and unusual punishment," since he only suffered minimal injury. Prisoner also claimed he was retaliated against for complaining about this treatment, in violation of his First Amendment rights. Boxer X v. Harris, No. 04-13083, 2006 U.S. App. Lexis 2008 (11th Cir.). [2006 JB Mar]
     Correctional officer's alleged conduct of repeatedly groping or caressing a prisoner's chest, genitals and buttocks during a pat search, if true, constituted a sexual assault which would violate the Eighth Amendment, so that he was not entitled to qualified immunity. Further, the officer's alleged retaliation against the prisoner for complaining by planting evidence against him and filing a misbehavior report against him, if true, would violate the prisoner's First Amendment rights. Rodriguez v. McClenning, No. 03 Civ. 5269, 399 F. Supp. 2d 228 (S.D.N.Y. 2005). [N/R]
     Nebraska Supreme Court holds that state correctional agencies were entitled to sovereign immunity in lawsuit by female inmate claiming that a correctional employee sexually assaulted her, whether her claims were based either on the mere fact that he was an employee or on the defendants' alleged own negligence in hiring and supervising him. Johnson v. State of Nebraska, No. S-03-1362, 700 N.W.2d 620 (Neb. 2005). [2006 JB Feb]
     New Jersey prisoner failed to show that prison officials were liable for an alleged physical attack against him in the prison carpentry shop and for later threats of physical and sexual assault by another prisoner. Plaintiff prisoner did not claim that any of the defendant officials had any awareness of his fears for his safety. Stringer v. Bureau of Prisons, No. 04-1510, 145 Fed. Appx. 751 (3rd Cir. 2005). [N/R]
     Prison administrators were not shown to have acted with deliberate indifference to the risk of sexual assaults by male guards on female prisoners when they investigated six prior incidents occurring in a four year period, and this resulted in the firing and prosecution of five guards. Heggenmiller v. Edna Mahan Correctional Institution for Women, #04-1786, 128 Fed. Appx. 240 (3rd Cir. 2005). [2005 JB Sep]
     Lawsuit against Texas county by female prisoners who claimed that guards subjected them to sexual assault and harassment was improperly dismissed by lower court. Prisoners' claims that the county knew or should have known that security cameras in the facility were non-functioning and improperly placed, and that aspects of the layout of the facility permitted guards to have unlimited, unmonitored access to prisoners to facilitate such assaults and harassment was sufficient to come within a statutory waiver of governmental immunity based on premises defects. Campos v. Nueces County, No. 13-03-724, 162 S.W.3d 778 (Tex. App. 2005). [N/R]
     County jail detainee beaten and raped by fellow prisoners showed genuine factual issues as to whether county sheriff had acted with deliberate indifference to the risk of such assaults by housing him with detainees with records of prior violence. Merriweather v. Marion County Sheriff, No. 02 CV 01881, 368 F. Supp. 2d 875 (S.D. Ind. 2005). [N/R]
     Sheriff who allegedly left two female inmates in the custody of the same male employees they alleged had sexually molested them was not entitled to qualified immunity in a lawsuit by one of them for failing to protect her against a known risk of harm. Gonzales v. Martinez, No. 03-1348, 2005 U.S. App. Lexis 6169 (10th Cir.). [2005 JB Jun]
     Prisoner's claim that prison guard attempted to solicit sexual favors from him in return for special consideration and groped his genitals in front of him, even if true, failed to establish a violation of the Eighth Amendment prohibition on cruel and unusual punishment, when there was no claim of any physical injury. Ornelas v. Giurbino, No. 03 CV 1673, 358 F. Supp. 955 (S.D. Cal. 2005). [N/R]
     Prison guard did not violate a Pennsylvania prisoner's Eighth Amendment rights by allegedly "blowing kisses" at him. While the prisoner claimed that this made him "fearful" of a future potential sexual assault, such conduct, while "unprofessional" did not state a claim for violation of federal civil rights. Prison psychiatrist had a clear obligation to report the prisoner's alleged subsequent threats against the guard, and was not required to give him Miranda warnings before discussing the incidents with him. The prisoner's statements to the psychiatrist were therefore admissible in subsequent prison disciplinary proceedings against him. Burkholder v. Newton, 116 Fed. Appx. 358 (3rd Cir. 2004). [N/R]
     Female prisoners who claimed that they were sexually assaulted by a jailer stated a viable claim against the city for alleged failure to adequately train or supervise its jailers. "We are unwilling to say, at this point, that it is not obvious that male jailers who receive no training and who are left virtually unsupervised might abuse female detainees." Drake v. City of Haltom, 106 Fed. Appx. 897 (5th Cir. 2004). [N/R]
     Prison guard was properly convicted of separate counts of unlawful sexual activity with an inmate on the basis of two incidents occurring on different days. The trial court's decision not to group the two incidents together in one count for sentencing purposes was proper. U.S. v. Vasquez, No. 03-1763, 2004 U.S. App. Lexis 23480 (2nd Cir. 2004). [N/R]
     Federal appeals court rules that if prison officials and employees actually declined to protect homosexual prisoner from repeated prison rape because of his sexual orientation, that would violate clearly established law, so that qualified immunity on that claim should be denied. Race discrimination claim dismissed for failure to exhaust available administrative remedies. Johnson v. Johnson, No. 03-10455 385 F.3d 503 (5th Cir. 2004). [2004 JB Dec]
     U.S. government could not be sued, under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for negligent hiring, supervision, management, and training of an officer who allegedly raped a female jail inmate while assigned to transport her between correctional facilities. Because the underlying claim arose out of the alleged commission of intentional wrongdoing, the rape, and the FTCA only provides for lawsuits based on negligence, the U.S. government was immune from the plaintiff's claims. Martinez v. U.S., No. CV02-1164, 311 F. Supp. 2d 1274 (D.N.M. 2004). [N/R]
     Manager of residential unit in state prison was not entitled to dismissal or summary judgment in lawsuit asserting that he failed to protect prisoner from a sexual assault by his cellmate. There were genuine issues of fact as to whether the defendant knew that the cellmate was a "predatory" homosexual who had attacked others. The plaintiff prisoner claimed that he had informed the manager of this in making a request for a different cell assignment, and the court found that the inmate's right to be protected against such assaults by his cellmate was clearly established. Brown v. Scott, 329 F. Supp. 2d 905 (E.D. Mich. 2004). [N/R]
     A county juvenile training facility was not entitled to Eleventh Amendment sovereign immunity against liability in a federal civil rights lawsuit concerning the alleged failure to adequately train employees and failure to investigate and prevent sexual abuse committed against one juvenile resident by another. The facility was not an arm of the state, because the county rather than the state would be responsible for paying any damage award against the facility, even though the facility was built pursuant to a state statutory scheme concerning juveniles found to be delinquent, dependent, abused, unruly or neglected, as well as juvenile traffic offenders. S.J. v. Hamilton County, Ohio, No. 02-3852, 374 F.3d 416 (6th Cir. 2004). [N/R]
     Appeals court orders further proceedings on whether woman should be allowed to proceed on lawsuit concerning her alleged gang rape in county jail over thirty years ago. Plaintiff argued that the statute of limitations should be extended because of her mental illness, and trial court made improper inferences, in the appeals court's opinion, in ruling on that issue. Douglas v. York County, No. 03-2086, 360 F.3d 286 (1st Cir. 2004). [2004 JB Aug]
     Female former inmates of federal community confinement center operated by a private company failed to show that company was negligent in failing to uphold a one-year security experience requirement when transferring an employee to a "resident advocate" position, since they failed to demonstrate that there was any connection between the employee's lack of security experience and his alleged sexual abuse of inmates. Company could not be held vicariously liable for the alleged abuse simply on the basis of the employer-employee relationship. There was, however, a triable issue of whether the company was negligent in retaining the employee after it received a report of his alleged sexual harassment of one female prisoner. Adorno v. Correctional Services Corp., 312 F. Supp. 2d 505 (S.D.N.Y. 2004 ). [N/R]
     Overturning dismissal of criminal charges against corrections officer on three counts of institutional sexual assault under 18 Pa. C.S.A. Sec. 3124.2 (prohibiting sexual intercourse, deviate sexual intercourse or indecent conduct with an inmate by a corrections employee), Pennsylvania Supreme Court rejects arguments that the statute was void for vagueness, overbroad, or violated due process. Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003). [N/R]
     Lieutenant who assigned a prisoner a new cellmate who subsequently sexually assaulted him was not liable, despite prisoner's claim that he feared an assault from a Latin Kings gang member. There was no showing that the sexual assault had anything to do with this gang, and there was no evidence from which the lieutenant could be said to be aware of a substantial risk of harm from pairing these two prisoners together. Riccardo v. Rausch, #02-1961, 359 F.3d 510 (7th Cir. 2004). [2004 JB May]
     Homosexual prisoner did not successfully show that prison guard was deliberately indifferent to his safety in placing him with a cellmate who subsequently raped him. The plaintiff's statement to the guard that he was "nervous" about being placed in a cell with another prisoner was insufficient to show that the guard in fact knew of the risk and ignored it. Alleged three-day delay in providing medical treatment following the rape did not show inadequate medical care, in the absence of any showing that the delay caused any harm. Harvey v. California, No. 02-16539, 82 Fed. Appx. 544 (9th Cir. 2003). [N/R]
     Prison superintendent and assistant superintendent could not be held personally liable for correctional officers alleged sexual assault on female prisoner in her cell, in the absence of any evidence that they were personally involved in the incident, had any actual or constructive knowledge of past violations which they failed to remedy, were grossly negligent in supervising the officer, or were deliberately indifferent to a known risk of harm. Morris v. Eversley, 282 F. Supp. 2d 196 (S.D.N.Y. 2003). [N/R]
     Update: Federal appeals court upholds ruling that drivers' license examiner's alleged conduct of forcing female inmate in work release program to have sex with him in exchange for special privileges, and under threat of being removed from the program, violated clearly established Eighth Amendment law. Smith v. Cochran, #01-5085, 339 F.3d 1205 (10th Cir. 2003). [2004 JB Jan]
     Federal officers responsible for convicted drug felon in witness protection program were not liable for his alleged sexual abuse of a female at a residential juvenile facility where they helped him obtain employment, or for his alleged continued sexual abuse of her after he became licensed as a foster parent and obtained custody of her. Nothing in his past criminal record made it foreseeable that he would engage in such conduct, since he had no prior crimes of violence or sexual abuse. Lawrence v. United States, #01-36142, 340 F.3d 952 (9th Cir. 2003). [2004 JB Jan]
     Correctional lieutenant who had sexual contact with female prisoner in federal facility held to have used "force" justifying the imposition of an enhanced criminal sentence despite not using a weapon, threatening or physically harming the victim, or inflicting pain on her. Court rules that the combination of the size disparity between the defendant lieutenant and the prisoner, the prisoner's circumstances in solitary confinement in a tiny cell with no other persons nearby, and being locked in her cell between his alleged attacks and repeatedly made to submit to him constituted "force" which placed her in fear. United States v. Denjen, 258 F. Supp. 2d 194 (E.D. N.Y. 2003). [N/R]
     Female prisoner stated a claim for violation of her Eighth Amendment rights by male correctional officer who allegedly made sexual advances towards her and by supervisors who allegedly took no remedial action despite prior complaints of similar conduct by the same and other officers towards other female prisoners. Williams v. Prudden, No. 02-1754, 67 Fed. Appx. 976 (8th Cir. 2003). [2003 JB Nov]
     President Bush on September 4, 2003 signed into law the Prison Rape Elimination Act of 2003 unanimously passed by Congress on July 24, 2003 (Senate) and July 25, 2003). [N/R]
     Female jail inmate who said she was sexually assaulted by a correctional officer could pursue claims against the county and its sheriff based allegations that sexual relationships at the facility between correctional officers and female inmates were "so widespread" that policy-makers had "constructive knowledge" of them but did nothing to remedy the situation. Faas v. Washington County, 260 F. Supp. 2d 198 (D. Me. 2003). [2003 JB Sep]
     Congress passes new federal statute: the Prison Rape Elimination Act of 2003. [2003 JB Sep]
     Texas correctional agency was not liable for alleged sexual assault on female prisoner at state jail by male guard in men's restroom. Intermediate appeals court rejects argument that facility's physical layout was a proximate cause of the alleged assault, bringing the claim within an exception for harms arising from the condition of state property to the immunity provided under a state tort claims act. Bonham v. Texas Department of Criminal Justice, No. 03-02-00389-CV, 101 S.W.3d 153 (Tex. App. 2003). [2003 JB Jul]
     City liable under state law for alleged rape of 16-year-old female juvenile doing court mandated community service by inmate-trustee working for the city. Trial court properly assessed city as 70% negligent and inmate-trustee as 30% at fault when city had an obligation to supervise the inmate-trustee, but knowingly allowed the teenage victim to work with him in a situation where they were left alone. City liable for 70% of $153,365.64 general damage award, but no liability found for damages or attorneys fees under 42 U.S.C. Sec. 1983 and 1988. Ashmore v. Hilton, No. 02-816, 834 So. 2d 1131 (La. App. 2002), rehearing denied (2003). [N/R]
     In lawsuit alleging that officer at juvenile correctional facility sexually assaulted a male minor prisoner, there was good cause to postpone the deposition of the minor plaintiff for a short time until after his release from custody in order to protect the minor from the possibility of further psychological harm. Williams v. Greenlee, 210 F.R.D. 577 (N.D. Tex. 2002).
     Drivers' license examiner's alleged conduct of forcing female inmate in work release program to have sex with him in exchange for special privileges, and under threat of being removed from the program, violated clearly established Eighth Amendment law and was sufficiently outrageous to support a claim for intentional infliction of emotional distress under Oklahoma state law. Smith v. Cochran, 216 F. Supp. 2d 1286 (N.D. Okla. 2002). [2003 JB Jan]
     Prisoner allegedly sexually assaulted in her room by a correctional officer a day after he fondled her and threatened to "get" her "tomorrow" presented a genuine issue of fact as to whether she made cottage manager aware that she reasonably feared a sexual assault by the officer and whether cottage manager acted reasonably in response. Prisoner also presented genuine issue as to whether "gag order" was imposed as a pretext to make her stop claiming that she had been assaulted. Ortiz v. Voinovich, 211 F. Supp. 2d 917 (S.D. Ohio 2002). [2002 JB Dec]
     Pretrial detainee allegedly sodomized by four prisoners in his cell sufficiently alleged deliberate indifference by prison officials based on the failure to take measures to classify and separate inmates based on security risks. Calderon-Ortiz v. Laboy-Alvarado, #01-2469, 300 F.3d 60 (1st Cir. 2002). [2002 JB Dec]
     New York female prisoner adequately alleged that correctional officials knew of prior sexual misconduct of correctional officers with female inmates, including the one she said sexually assaulted her, but failed to take action to prevent it. Defendant officials were not entitled to qualified immunity. Morris v. Eversley, 205 F. Supp. 2d 234 (S.D.N.Y. 2002). [2002 JB Nov]
     Under Illinois state law, sheriff could not be held vicariously liable for the alleged sexual misconduct of a correctional officer with a female prisoner. Dorsey v. Givens, 209 F. Supp. 2d 849 (N.D. Ill. 2001). In a related decision, the court held that the officer's alleged sexual misconduct was not within the scope of his employment, so that he was not entitled to indemnification from his employer under state law. Dorsey v. Givens, 209 F. Supp. 2d 850 (N.D. Ill. 2001). [N/R]
     Supreme Court of Indiana summarily affirms intermediate appeals court decision [(Robins v. Harris, 740 N.E.2d 914 (Ind. App. 2000), aff'd on rehearing, 743 N.E.2d 11422 (Ind. App. 2001)] that sheriff was liable for sexual assault allegedly committed on female jail inmate but that the county commissioners were not, following settlement of the case, except for a portion of the opinion stating that consent by the inmate was not available as a defense in the civil lawsuit, just as it was not available, under state law, I.C. Sec. 35-44-1-5(b) to a criminal charge of sexual assault arising out of the same incident. Robins v. Harris, No. 84S01-0106-CV-00315, 769 N.E.2d 586 (Ind. 2002). [N/R]
     Female prisoner who reported that she had been raped by a supervising deputy in the county jail failed to show that the county had a policy of ignoring sexual harassment and sexual assault complaints. While accused deputy was not disciplined following the county's own investigation, he was suspended when a subsequent state police investigation resulted in criminal charges against him, and the record showed three other cases in which a deputy had been disciplined for alleged sexual misconduct. Ford v. County of Oakland, #00-2140, 35 Fed. Appx. 393 (6th Cir. 2002). [2002 JB Sep]
     Hospital and correctional department were not vicariously liable for therapist's alleged fondling of female prisoner and subsequently contacting her after her release and coercing her into prostitution. The therapist's alleged actions were entirely for his own interests and were not in furtherance of the defendants' interests. There was also no liability for negligent hiring and supervision since nothing indicated that the therapist's alleged actions were foreseeable. Garcia v. Montefiore Medical Center, 740 N.Y.S.2d 307 (A.D. 2002). [N/R]
     Female inmate sexually assaulted by prison guard was properly awarded $15,000 in compensatory and $5,000 in punitive damages against prison security director and $25,000 in punitive damages against warden for failure to protect her against the assault, based on guard's prior actions that a jury could have found put them on notice that he posed a substantial risk of serious harm to female prisoners. Riley v. Olk-Long, #00-3411, 282 F.3d 592 (8th Cir. 2002). [2002 JB Jun]
     Mother of juvenile detainee allegedly sexually assaulted and abused by warden in juvenile detention facility did not show that alleged assault was caused by the failure of state employees to mention warden's prior marijuana conviction when writing letters of reference to obtain warden position. Warden had previously received a pardon on that conviction from the governor and the conviction had been effectively expunged, with a criminal records search not revealing it. K.S., v. Summers, No. 2001 CW 0794, 799 So. 2d 510 (La. App. 2001) [2002 JB Mar]
     Prisoner stated an Eighth Amendment claim for sexual assault against private medical service employees brought into correctional facilities. Prisoner, who was pregnant at the time, claimed that two nurses sexually assaulted her by conducting an internal exam without gloves, asking if she was HIV positive, giving her hugs and kisses, and giving her one of their home phone numbers.. Goode v. Correctional Medical Services, Inc., 168 F. Supp. 2d 289 (D. Del. 2001). [N/R]
     Prisoner awarded $1.5 million in damages for sexual assault by his cellmate. Riccardo v. Rausch, No. 99CV-372, U.S. Dist. Ct. (N.D. Ill. April 11, 2001), reported in Chicago Daily Law Bulletin, p. 21 (Dec. 21, 2001). [N/R]
     Two female former residents of juvenile detention facility awarded $200,000 against former employee for his alleged sexual assaults against them; federal appeals court reinstates civil rights claim against assailant's co-worker, a counselor who admitted that she had heard "numerous rumors" that he was having sex with female detainees. Beers-Capitol v. Whetzel, No. 00-2479, 256 F.3d 120 (3rd Cir. 2001). [2002 JB Jan]
     297:140 Correctional center supervisor's alleged decision to allow lieutenant to continue to have access to female unit after receiving information that he was sexually abusing female inmates in order to attempt to catch him "red-handed" could be found to be deliberately indifferent to the risk that the lieutenant would rape a female prisoner. Noguera v. Hasty, 2001 U.S. Dist. LEXIS 2458 (S.D.N.Y. 2001).
     297:139 Qualified immunity denied to prison officials on claim that they acted with deliberate indifference to male guard's alleged sexual misconduct towards female prisoner in special unit for past victims of sexual trauma; factual issues presented also on whether practice of pat searches of such prisoners by male guards was reasonably related to legitimate penological objectives. Colman v. Vasquez, 142 F. Supp. 2d 226 (D. Conn. 2001).
     296:124 Jail chaplain acted under color of state law in allegedly engaging in sexual acts with female prisoner who came to him for religious purposes; prisoner could pursue federal civil rights claim. Paz v. Weir, 137 F. Supp. 2d 782 (S.D. Tex. 2001).
     294:83 Incident in which a white female correctional officer was not disciplined for allegedly kissing an inmate did not show that firing an African-American male officer for allegedly having sex several times with a female prisoner was a "pretext" for racial discrimination. English v. Colorado Dept. of Corrections, No. 99-1452, 248 F.3d 1002 (10th Cir. 2001).
     293:76 Indiana sheriff was liable for officer's alleged intentional sexual assault on a female prisoner; "consent" was not an available defense in the lawsuit, and state tort immunity statute did not apply. Robins v. Harris, No. 84A01-0002-CV-57, 740 N.E.2d 914 (Ind. App. 2000).
     291:46 Correctional officials were not liable for alleged rape of female prisoner by correctional officer, which caused her to give birth to a son; plaintiff inmate did not show "deliberate indifference" by correctional officials to the risk of such attacks, and training given to officer included training on policy prohibiting sexual contact with prisoners. Daniels v. Delaware, 120 F. Supp. 2d 411 (D. Del. 2000).
     289:13 South Dakota correctional officials were entitled to sovereign immunity from liability for alleged negligent hiring, training and supervision of correctional officer who allegedly raped a female prisoner in a prison bathroom on two occasions. Casazza v. State, No. 21217, 616 N.W.2d 872 (S.D. 2000).
     284:124 Georgia prisoner's claim that a correctional employee sexually abused him was subject to dismissal when he failed to exhaust available administrative grievance procedures before filing his federal civil rights lawsuit. Dillard v. Jones, 89 F. Supp. 2d 1362 (N.D. Ga. 2000).
     285:142 U.S. Supreme Court strikes down federal Violence Against Women Act (VAWA) as unconstitutional. Some plaintiffs were attempting to use statute to assert claims arising out of alleged sexual assaults by law enforcement personnel. United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).
     278:27 Sexual abuse of female prisoner by male correctional officer could be the basis of Eighth Amendment and "Violence Against Women Act" (VAWA) claims against supervisory officials who allegedly knew or should have known of risk that officer would sexually molest inmates. Peddle v. Sawyer, 64 F. Supp. 2d 12 (D. Conn. 1999).
     280:58 Prisoner's assertion that correctional officers sexually assaulted him on three occasions satisfied the requirement of a physical injury for recovery for emotional damages stated in the Prison Litigation Reform Act. Liner v. Goord, No. 98-2925, 196 F.3d 132 (2nd Cir. 1999).
     280:59 Federal trial court rules that sexual relations between a female prisoner and a male correctional officer, even if allegedly consensual, were a per se violation of the Eighth Amendment in a state which criminalized such conduct; consent defense was not available to officer in federal civil rights lawsuit. Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999).
     282:88 Prisoner was required to pursue available administrative remedies over alleged failure to protect him against rape by a fellow prisoner even though the damages he was seeking in a federal civil rights lawsuit were not available in the administrative process; appeals court finds, however, that prisoner "substantially complied" with exhaustion requirement. Wyatt v. Leonard, No. 98-4161, 193 F.3d 876 (6th Cir. 1999).
     282:93 County was not liable for guard's alleged sexual assault on female prison based merely on policy of allowing cross-gender guarding of prisoners; random sexual assault did not constitute "punishment" for Eighth Amendment purposes; officer could be liable for a violation of prisoner's due process rights however, and be subject to punitive damages if allegations were true. Cain v. Rock, 67 F. Supp. 2d 544 (D. Md. 1999).
     272:124 Co. and sheriff were not liable in federal civil rights lawsuit based on jail guards' alleged sexual assault on female jail inmate; county ordinance prohibited indemnification for criminal misconduct; federal trial court declines to hear state law claim against sheriff after default against guards settles all federal claims in case. Boyd v. Herron, 39 F.Supp.2d 1129 (N.D. Ind. 1999).
     265:12 Female prisoner properly awarded $80,000 against male correctional officer who allegedly raped her and then tried to compel her to abort pregnancy with quinine and turpentine; second officer who allegedly sexually harassed plaintiff prisoner granted new trial because of erroneous admission of evidence concerning alleged misconduct towards other prisoners; warden and state correctional director not liable. Berry v. Oswalt, #97-1505, 97-1509, 143 F.3d 1127 (8th Cir. 1998).
     266:27 Co. liable for $50,000 in lawsuit where female prisoner at jail alleged that male correctional officer raped her; evidence was sufficient to show a "continuing, widespread, and persistent" pattern of prior sexual misconduct by officers at the jail and a deliberate indifference to such misconduct evidence by failure to discipline officers or investigate some past incidents. Ware v. Jackson Co., Missouri, #97-1800, 150 F.3d 873 (8th Cir. 1998).
     267:45 Correctional officer employed by private corporation running state prison acted under "color of state law" when he allegedly raped female prisoner in her cell, but was not a "state employee" entitled to immunity from state law assault and battery claim; no showing that prison officials had knowledge of "substantial risk" of sexual assault on prisoner. Gibon v. Corrections Corp. of America, 14 F.Supp.2d 1245 (D.N.M. 1998); Gibon v. Corrections Corp. of America, 14 F.Supp.2d 1252 (D.N.M. 1998).
     268:60 Jail officials not liable for rape of prisoner by cellmate in holding cell; jailers did not know that cellmate posed a threat of sexual assault on prisoner and therefore did not act with deliberate indifference by placing the two together in a holding cell. Perkins v. Grimes, #98-1111, 161 F.3d 1127 (8th Cir. 1998).
     269:76 No liability for county and its employees for alleged repeated sexual assaults by one prisoner on his cellmate; victim of alleged assaults did not report any problem for four days because of his fear of his assailant, and defendants took immediate action to remove victim from his cell once they learned of the problem; South Dakota statute gave defendants immunity from state law negligence claim. Webb v. Lawrence Co., #96-2096, 144 F.3d 1131 (8th Cir. 1998).
     271:108 Co. and sheriff were not liable for sexual assault by male jailer of two female prisoners serving 48-hour sentences for minor offenses at county jail; county and sheriff had no indication that jailer would assault prisoners and no prior similar incidents had occurred there; court rejects inadequate training and hiring theories. Braney v. Pulsipher, #96-4192, 143 F.3d 1299 (10th Cir. 1998).
     275:173 Unit warden who allegedly had knowledge of sexual assaults by prisoners could be sued by prisoner allegedly repeatedly raped by more than twenty inmates over a one year period, who allegedly contracted HIV as a result. Spruce v. Sargent, #97-1078, 149 F.3d 783 (8th Cir. 1998).
     [N/R] Phlebotomist who administered "sex kit" examination on rape suspect in custody was not liable in prisoner's lawsuit claiming Fourth Amendment violation; phlebotomist acted in good-faith reliance that officers who directed her to do so were acting constitutionally. Robinson v. City of San Bernardino Police Dept., 992 F.Supp. 1198 (C.D. Calif. 1998).
     261:140 Brief touching of prisoner's buttocks by civilian maintenance workers did not amount to a "sexual assault"; while behavior was "inappropriate," it did not give rise to a federal civil rights claim. Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998).
     254:27 Prison officials not liable for officer's alleged rape of female prisoner when they were not shown to be deliberately indifferent to incident; defendant officials were also entitled to qualified immunity when law concerning incident was not clearly established in 1995. Carrigan v. State of Delaware, 957 F.Supp. 1376 (D. Del. 1997).
     255:45 Failure of city jail to have a female jailer on duty or to have two male jailers on duty who could watch each other did not constitute a policy of inadequate staffing making it liable for male jailer's repeated sexual assault of female pretrial detainee in her cell. Scott v. Moore, 114 F.3d 51 (5th Cir. 1997).
     256:59 Correctional officer who sodomized male prisoner at county jail liable for $253,220 in damages; New Jersey Supreme Court rules that claim against county was not barred, despite lack of physical injury, since permanent post-traumatic stress disorder could constitute a "permanent loss of a bodily function" as required by state statute. Collins v. Union Co. Jail, 150 N.J. 407, 696 A.2d 625 (N.J. 1997).
     257:78 Co. liable for $100,000 to female prisoner sexually assaulted and rendered pregnant by male correctional officer who was left alone with her for almost two hours in private room by female officer after he requested that female prisoner repair tear in his pants; assailant officer liable for $1 million in damages. Downey v. Denton Co., Texas, 119 F.3d 381 (5th Cir. 1997).
     258:91 Correctional officer sued by former prisoner who claimed he raped her was not entitled to discovery concerning all of her past sexual contacts, but could receive information concerning any prior sexual contacts which were "violent or damaging." Giron v. Corrections Corp. of America, 981 F.Supp. 1406 (D.N.M. 1997).
     258:93 Officer was not liable for failure to protect prisoner from sexual assault by his cellmate or failure to transfer him to another cell; she had no reason to believe that the cellmate was particularly dangerous. Luttrell v. Nickel, 129 F.3d 933 (7th Cir. 1997).
     258:93 Correctional officer in charge of security at facility liable for $250,000 in compensatory damages and $200,000 in punitive damages for alleged anal rape of male prisoner in his office. Mathie v. Fries, 121 F.3d 808 (2nd Cir. 1997).
     260:126 Company which operated juvenile correction center under contract with state was not liable for one youth's sexual assault on another; plaintiff did not show that company had unconstitutional policy or custom of ignoring concerns about room assignments. Burton v. Youth Services International, Inc., 176 F.R.D. 517 (D. Md. 1997).
     261:141 New York state prisoner was not entitled to transfer to federal prison while her lawsuit, claiming that a number of state correctional officers had raped her was pending; her claims were not credible and prison officials had also taken steps to protect her; court also lacked jurisdiction to order federal prisons to accept custody of state prisoner. Fisher v. Goord, 981 F.Supp. 140 (W.D.N.Y. 1997).
     262:148 Oklahoma state Department of Corrections was an "arm" of the state and, as such, could not be the defendant in a federal civil rights lawsuit; prisoner's lawsuit alleging that correctional officer employed by the state had sexually assaulted her dismissed when Department was only defendant named. Glenn v. State Dept. of Corrections, 943 P.2d 154 (Okl. App. 1997).
     [N/R] Male prisoner's claim that he was sexually assaulted by female correctional counselor was sufficient to show state action in that he claimed that she was able to take her alleged actions due to her position of authority. Walker v. Taylorville Correctional Center, 129 F.3d 410 (7th Cir. 1997).
     251:172 Co. was not liable for deputy's alleged sexual assaults on female prisoner when county had policy against such assaults and promptly investigated once it was reported; no showing of "deliberate indifference" in the absence of any prior allegation that deputy engaged in assaultive behavior. Thomas v. Galveston Co., 953 F.Supp. 163 (S.D. Tex. 1997).
     242:27 In prisoner's lawsuit claiming that jail officials failed to protect him against sexual assault by other prisoners, defendant officials could not introduce evidence of prisoner's homosexual relationships before confinement or in another facility, but could introduce evidence that prisoner allegedly engaged in sexual "teasing" of other prisoners in jail. Blackmon v. Buckner, 932 F.Supp. 1126 (S.D. Ind. 1996).
     245:77 Male pretrial detainee awarded $750,000 on claim that male director of jail security repeatedly engaged in oral sexual acts with him in security officer during 20 visits, and finally handcuffed and anally penetrated him. Mathie v. Fries, 935 F.Supp. 1284 (E.D.N.Y. 1996).
     250:157 Correctional officials not liable for cellmate's alleged rape of prisoner; no deliberate indifference in placing two inmates in the same cell when officials had no reason to know of any substantial risk of such an assault; one hour delay in medical treatment following alleged attack was not an Eighth Amendment violation when injuries were minor and no harm resulted from delay. Langston v. Peters, 100 F.3d 1235 (7th Cir. 1996).
     230:26 Lawsuit against prison officials and guards by prisoner allegedly raped by HIV positive cellmate should not have been dismissed as frivolous, despite his failure to specify required mental state of individuals or name of guard who allegedly stood by and failed to intervene during rape. Billman v. Indiana Dept. of Corrections, 56 F.3d 785 (7th Cir. 1995). [Cross-reference: AIDS Related; Defenses: Eleventh Amendment; Frivolous Suits].
     230:27 State of Louisiana and prison guard liable for $150,000 in damages to child of female inmate conceived as a result of guard raping her in prison; guard but not state also liable for $35,000 in attorney fees. Latullas v. State, 658 So.2d 800 (La. App. 1995). [Cross-reference: Attorneys' Fees].
     231:44 Illinois appeals court overturns $1.1 million award against county and $110,000 in punitive damages against jail officials for failure to prevent alleged rape of retarded inmate by six other prisoners; evidence was inadequate to show jail officials acted "willfully and wantonly." Mitchell v. Elrod, 275 Ill. App. 3d 357, 655 N.E.2d 1104 (1995).
     233:76 Prisoner's assertion that correctional officer "sexually assaulted" him during strip searches stated a federal civil rights claim, even if officer was acting to satisfy his personal sexual desires rather than for any investigatory purpose. Seltzer-Bey v. Delo, 66 F.3d 961 (8th Cir. 1995).
     239:173 Female inmate at city jail allegedly sexually assaulted by male jailer awarded $300,000 in damages and $62,794.34 in attorneys' fees and costs; Georgia appeals court rules that inmate was not barred, after settlement of claims against city for $175,000, from seeking payment from city's insurer for $100,000 judgment against male jailer, rejecting argument that male jailer's actions were outside the scope of his employment. Isdoll v. Scottsdale Insurance Co., 466 S.E.2d 48 (Ga. App. 1995).
     224:125 Arrestee stated federal civil rights claim both against officer she alleged sexually assaulted her in booking cell and officers she alleged watched the assault and declined to help her. Huffman v. Fiola, 850 F.Supp. 833 (N.D. Cal. 1994).
     226:157 Erroneous admission into evidence of hearsay contained in police reports in prisoner's lawsuit alleging that prison employees failed to protect him from known danger of sexual assault requires new trial after jury determined, based on reports, that rape of inmate did not take place. Miller v. Field, 35 F.3d 1088 (6th Cir. 1994).
     Co. sheriff was entitled to qualified immunity from suit based on male officer's alleged sodomizing of female inmate; absent any reason to believe that male officer was a threat to female inmates, sheriff had no reason to take unusual preventative measures. Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993).
     Kansas Supreme Court holds that state had a duty to take reasonable steps to protect 12 year old juvenile from sexual assault by 17 year- old fellow inmate at county juvenile hall when 17-year-old had an allegedly known history of violence and sexually deviant conduct. C.J.W. v. State, 853 P.2d 4 (Kan. 1993).
     Prison officials were not liable for three inmates' rapes of a prisoner serving time for a sexual offense; officials had no reason to know of particular risk of harm to raped inmate, having offered him an opportunity to be placed in protective custody, which he declined. Mooreman v. Sargent, 991 F.2d 472 (8th Cir. 1993).
     U.S. government could not be held liable for alleged sexual assault of female inmate by male correctional officer transporting her off prison grounds to a doctor's office; alleged sexual assault would be outside the scope of employment of the officer, and correctional officials had no reason to believe that officer had a predisposition for violence. Fleschig v. United States, 991 F.2d 300 (6th Cir. 1993).
     Appeals court reverses $100,000 award against county for prisoner sexually assaulted by another prisoner inserting a toothbrush into his anus. Doe v. Sullivan Co., Tenn., 956 F.2d 545 (6th Cir. 1992).
     Appeals court reinstates detainee's suit against county and jail officials for his repeated homosexual rape by other prisoners. Redman v. Co. of San Diego, 942 F.2d 1435 (9th Cir. 1991), cert. denied, 112 S.Ct. 972 (1992).
     Female prison guard could not sue prison officials for violation of her constitutional rights based on her being taken captive and raped by prisoner; prisoner did not act under "color of law," and his assault on prison guard therefore could not violate the guard's due process rights. Nobles v. Brown, 985 F.2d 235 (6th Cir. 1992).
     Appeals court upholds awards of $1 nominal damages to prisoners who prevailed in suit asserting that prison superintendent violated their Eighth Amendment rights against cruel and unusual punishment by not preventing their homosexual rape by other inmates; plaintiffs were not, however, entitled to either declaratory or injunctive relief, but were properly awarded $94,680 in attorneys' fees because their suit served the interest of other prisoners by encouraging the adoption of safety measures. Butler v. Dowd, 979 F.2d 661 (8th Cir. 1992).
     Registered nurse working at prison could bring federal civil rights suit against her supervisors for her rape by inmate with a known history of violence against women who was left alone with her. L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992).
     Prison officials were not liable for sexual assault on prisoner by another inmate; evidence did not show defendant's reckless disregard of risk of assault. McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991).
     U.S. government not liable for alleged sexual assault of female inmate by correctional officer who was transporting prisoner to medical appointment; officer did not act within the scope of his employment in allegedly assaulting inmate. Flechsig v. U.S., 786 F.Supp. 646 (E.D. Ky. 1991).
     Court could not dismiss as frivolous a lawsuit, filed by inmate in a state hospital for the criminally insane, alleging he was drugged and homosexually raped 28 times by inmates and prison officials, since it could not determine that none of the incidents happened. Hernandez v. Denton, 929 F.2d 1374 (9th Cir. 1991), cert. denied, 112 S.Ct. 435 (1991).
     City liable for $250,000 to nineteen year-old inmate homosexually raped in jail's shower, based on negligent implementation of policies calling for segregation of violent or homosexual prisoners. City of Waco v. Hester, 805 S.W.2d 807 (Tex. App. 1991).
     Federal trial court holds that officer's alleged sexual demands on inmate are not "under color of state law." Rembert v. Holland, 735 F.Supp. 733 (W.D. Mich. 1990).
     Court holds that deputy sheriff could not possibly have sexually assaulted female arrestee in jail; on dates of alleged assaults, detainee was not even there. Herron v. Jackson, 558 So.2d 303 (La. App. 1990).
     Inmate sodomized by three cellmates settles for $179,500 lawsuit against four deputies for failure to prevent attack. Bailey v. Allmon, U.S. Dist. Court, Norfolk, Val., reported in Norfolk Ledger-Star, p. 1, April 25, 1990.
     Prison officials not liable for repeated rape of pretrial detainee transferred from "young and tender" unit to cell with aggressive homosexual. Redman v. Co. of San Diego, 896 F.2d 362 (9th Cir. 1990).
     Sixteen-year-old female who alleged deputy jailer raped her in custody could not sue because of Kentucky's one year statute of limitations; her marriage at age 17 stopped the tolling of the statute. Holbert v. West, 730 F.Supp. 50 (E.D. Ken. 1990).
     Suit by prisoner who claimed guards forced him to have oral sex on five occasions is settled out-of-court. Ford v. City of St. Louis, U.S. Dist. Ct. St. Louis, Missouri, reported in St. Louis Post-Dispatch, September 15, 1989.
     Co., sheriff and former chief jailer liable for former chief jailer's kidnap and rape of female prisoner after she reneged on deal to pose for pornographic pictures. Parker v. Williams, 855 F.2d 763 (11th Cir. 1988).
     Human Leukocyte antigen test admissible to corroborate inmate's testimony that guard had sexually assaulted her. State v. Spann, 529 A.2d 1039 (N.J. Super. L. 1987).
     Inmate claims he was raped by cellmate for three consecutive days and that jailer refused to protect him; court rules state statute of limitations is tolled by periods of imprisonment. Hughes v. Sheriff of Fall River Co. Jail, 814 F.2d 532 (8th Cir. 1987).
     Sheriff and deputy could be liable for failure to protect inmate from being sodomized. Kemp v. Waldron, 497 N.Y.S.2d 158 (A.D. 3 Dept. 1986).
     Level of sexual assault in county jail violated eighth amendment; plaintiff's counsel's duel role as advocate and ombudsman not unfair to defendants. Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir. 1986).
     Depositions of defendants ordered in suit alleging they didn't prevent sexual assault. Villante v. Dept. of Corrections of City of New York, 786 F.2d 516 (2d Cir. 1986).
     In light of Brandon, a U.S. Supreme Court decision, county could be liable for sheriff's actions in inmate rape. Carroll v. Wilerson, 782 F.2d 44 (6th Cir. 1986).
     Co. commissioners may have duty to prevent rape. Warner v. Co. of Washoe, 620 F.Supp. 59 (D.C. Nev. 1985).
     Failure to orient a new inmate of prison violence not ground for liability for rape. Wheeler v. Sullivan, 599 F.Supp. 630 (D. Del. 1984).
     Jury to decide whether uncompleted booking process means arrestee was not yet a "prisoner". Zeilman v. Co. of Kern, 214 Cal.Rptr. 746 (Cal.App. 1985).

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