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Second Circuit case deals with sexual assault on inmates

A jury award granted to a woman who was raped by a deputy in the Erie County Holding Center will stand.

The U.S. Court of Appeals for the Second Circuit has reversed a federal court decision and remanded the case with instructions to enter judgment on the claim consistent with the $500,000 jury verdict in favor of the plaintiff.

The suit was brought in 2003 against then Erie County Sheriff Patrick Gallivan and the deputy, Marchon Hamilton, by a woman alleging a violation of her due process rights while being held in pretrial detention.

Attorneys for the county argued there were charging errors in the special verdict form and inconsistent jury verdicts, requiring a new trial.

“Obviously, I’m very happy to have gotten this reversal,” said New York City attorney Eugene B. Nathanson who represented the plaintiff. “I think it’s gratifying that the court has alerted corrections officials to be more cautious and proactive in the face of the inherent risk of male guard/female inmate sexual misconduct — really sexual violence.”

At issue was whether the woman, whom The Daily Record will not identify, had sufficient evidence that the county was liable for the violation of her rights to support a jury verdict returned in her favor.

There is no dispute, according to court papers, that the woman was raped by former deputy Marchon Hamilton Dec. 17, 2002. Nearly a year later, the woman sued Erie County, the Erie County Sheriff’s Department, Gallivan and Hamilton in New York State Supreme Court for injuries. She sought federal relief under 42 U.S.C. 1983, which protects people whose constitutional rights are violated by someone acting under state authority. She also filed a state claim for negligence.

The defendants moved the action to federal court in March 2004, after which the woman’s complaint against the sheriff’s department was dismissed because it was not a municipal entity distinct from the county. Her claim for punitive damages against the county and Gallivan, the county policymaker with respect to the holding center, were also dismissed.

Disputed issues of municipal liability went to trial before U.S. Magistrate Judge Jeremiah McCarthy.

Hamilton was charged with first-degree rape and suspended without pay. He later pleaded guilty to third-degree rape, was sentenced to five years’ probation and resigned from the department.

Because defendants did not deny Hamilton raped the woman, the focus at trial was on whether county policies were to blame for the assault. There was no county policy prohibiting a single deputy of one sex from being alone with a prisoner of another sex, according to court papers.

In his charge to the jury, Judge McCarthy instructed that the defendants could not be held liable for constitutional violations by Deputy Hamilton merely because he was a county employee and that she had to prove “beyond a preponderance of the evidence that the actions of Marchon Hamilton … [were} the result of an official policy, practice or custom.”

The court determined that the county’s policy of allowing male guard to be alone with female inmates was not unconstitutional and that the woman failed to provide sufficient evidence of prior incidents of sexual assault by male guards of female prisoners to put the sheriff and county on notice that such a policy presented a substantial risk of sexual harm to female prisoners.

“Absent such evidence, the district court concluded that the record ailed as a matter of law to support a reasonable jury finding of deliberate indifference,” says the Second Circuit decision, dated Aug. 18. “Accordingly, the district court set aside the jury’s verdict and entered judgment in favor of defendants.”

Nathanson appealed.

The Court of Appeals cites the U.S. Supreme Court case of DeShaney v. Winnebago County Department of Social Services 489 U.S. 189, 199-200 which notes when the state holds a person in custody, it has a constitutional duty to assume some responsibility for his or her safety.

“In this case, defendants cannot claim that the evidence was insufficient to alert them to the risk of sexual exploitation posed by male deputies guarding female prisoners at ECHC,” the decision reads. “That risk is acknowledged in New York state law, which pronounces prisoners categorically incapable of consenting to any sexual activity with guards … and subjects guards to criminal liability for such conduct.”

That left the question of whether the defendants could rely simply on guards’ awareness of criminal law to deter sexual exploitation or whether defendants should have known more was required to at least stop one-on-one contact between guards and prisoners.

Gallivan, in a December 2006 deposition, according to a footnote, had acknowledged an awareness of multiple allegations of sexual assault or abuse by male guards of female prisoners, but couldn’t recall a specific case or whether the allegations were founded.

Undisputed is that prior to Hamilton’s attack on an inmate, there was an allegation by another female inmate, but her credibility was questioned after she changed her story. In addition, she admitted to exposing herself to male guards in exchange for cigarettes or other commissary items.

An internal report concluded that woman’s claim of having sexual intercourse with a guard could not be sustained.

“Indeed, investigators indicated, that despite [the woman’s] dubious credibility, they thought it likely that such prohibited sexual activity had in fact occurred …,” the Court of Appeals notes. “A jury could have concluded that this investigative determination should have alerted defendants that they could not rely simply on guards’ awareness of a no-tolerance policy to deter sexual misconduct. Likewise, a jury could have determined that Gallivan’s conceded awareness of ‘highly publicized incidents’ at other New York correctional facilities should further have alerted him to the inadequacy of a mere proscriptive policy to deter guards’ sexual misconduct.”

Thomas Frame, a corrections consultant with 24 years of experience as Pennsylvania prison warden, had testified at trial that accepted prison practice for deterring sexual misconduct between male guards and female inmates was to prohibit one-on-one interactions and that ECHC’s permitting of such should have served as a “red light” that it was not good policy and should be stopped.

“We have no occasion to consider the possibility of contrary views; defendants offered no such evidence,” says the decision written by Circuit Judge Reena Raggi.

Defendants further contended that if the judgment in their favor was reversed, the district court’s denial for a new trial should also be reversed.

They argued that a question on the special verdict form improperly conflated the county policy with cause, misstated the causation element and failed to allow the jury to consider whether Hamilton was the sole cause of the woman’s injuries. The question asked if the violation of the plaintiff’s constitutional rights were proximately caused by a county practice. Defendants also argued the jury’s verdicts were inconsistent with the federal and state claims.

The Court of Appeals reviewed the denial for abuse of discretion, concluding the objection was not stated clearly enough to preserve it for appellate review, but that even if it had been, defendants could not show that when the question was considered in light of the jury charge, that there was any confusion as to the woman’s burden to prove policy and causation.

“Defendants’ contention that the verdict form was deficient in failing to inquire whether Deputy Hamilton was the sole cause of [the woman’s] injuries merits little discussion,” according to the decision which also rules the evidence was sufficient to support the jury verdict in favor of the plaintiff.

Chief Judge Dennis Jacobs dissented, saying there was no evidence of sexual misconduct by guards prior to the assault by Hamilton besides the questionable allegations of one inmate three years earlier.

“If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women’s or men’s prisons,” Judge Jacobs wrote. “The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison.”

The third judge on the panel was Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York, sitting by designation.

Nathanson said assaults on female inmates by male guards is a very big and difficult national issue.

“Corrections officials are going to have to be working harder to minimize that risk,” he said. The plaintiff was represented at trial by Buffalo attorney Robert H. Perk and Derek Sells of the New York City office of The Cochran Firm.

The defendants were represented by Thomas F. Kirkpatrick Jr., Erie County second assistant attorney, who could not be reached for comment. Nathanson said options include asking for an en banc review by the U.S. Court of Appeals for the Second Circuit or seeking certiorari to the U.S. Supreme Court.

Changes in Erie County will be forthcoming. The Justice Department announced Thursday that it had filed a stipulated order of dismissal to resolve its lawsuit concerning conditions of confinement at the Erie County Holding Center, a pre-trial detention center, and the Erie County Correctional Facility in nearby Alden.

The lawsuit, which the department filed on Sept. 30, 2009, in federal court in the Western District of New York, alleged conditions at the facilities routinely and systemically deprive prisoners of constitutional rights through inadequate medical and mental health care, failures to protect prisoners from harm, and deficiencies in environmental health and safety.

The order requires Erie County to implement a comprehensive mental health program for its prisoners. It also includes comprehensive provisions aimed at addressing sexual abuse by changing the way the county investigates allegations of sexual abuse by prisoners and staff, including appointing a sexual abuse coordinator within the facilities, offering counseling services for victims of sexual abuse, and increasing training and awareness on prison rape and sexual violence. Additionally, the stipulated order includes provisions to ensure proper investigation of allegations of violence and excessive force.

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