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Qualified Immunity Denied in CO Rape Case; Suit Settled for $70,000

In an unpublished ruling, the Tenth Circuit has denied qualified immunity to prison officials who failed to protect a prisoner from being raped by another prisoner.

Marvin Gray, a "large and powerful individual with a violent past," was a prisoner at Colorado's Limon Correctional Facility (LCF) in 1993. He had a known history of violence, including raping other prisoners, and at least one previous disciplinary conviction for rape. In July of 1993, the defendant prison officials were informed that "Gray had brutally raped another inmate at LCF." Instead of removing Gray from population they transferred him to another cellhouse were he was doublebunked with James Mervin. Gray then choked, beat and raped Mervin. Gray was isolated the next day.

Mervin then filed a §1983 suit alleging a violation of his Eighth Amendment right to be free from both physical and sexual assault by other prisoners. The defendants, without contesting that the allegations established a violation of a constitutional right, moved for summary judgment based on qualified immunity. The District Court denied the motion and the defendants appealed.

The Court of Appeals began its analysis by noting that, unlike other summary judgment reviews, appeals involving qualified immunity must follow the twoprong test of Siegert v. Gilley, 111 S.Ct. 1789 (1991). There must be an alleged violation of a constitutional right and the violated right must be a right clearly established at the time of the incident. Since the defendants did not contest that there was a violation of a constitutional right, the first prong was met.

Regarding the second prong, the defendants claimed the law establishing a prisoner's right to safety in prison was not clearly established until the 1994 United States Supreme Court decision in Farmer v. Brennan, 114 S.Ct. 1970, a year after Mervin was raped. The Court rejected this argument holding that "[t]he law is wellsettled that the Eight Amendment requires prison officials to take reasonable measures to guarantee the safety of the inmates. Hudson v. Palmer, 104 S.Ct. 3194, 3200 (1984). Suffering physical assaults while in prison is not part of the penalty that criminal offend ers pay for their offenses against society. Rhodes v. Chapman, 101 S.Ct. 3292, 2399 (1981)." The Court further held that the twoprong test of Wilson v. Seiter, 111 S.Ct. 2321 (1991) was also met. That is, Mervin's allegations showed conditions posing a substantial risk of serious harm and the defendants acted with deliberate indifference to his health or safety. The Court also held that the Farmer definition of deliberate indifference did not absolve the defendants from liability. The Court even went so far as to clarify the "deliberate indifference" and "malicious and sadistic" standards of liability then noted that the defendants had "confused these differing standards."

"After the Tenth Circuit denied the defendants qualifief immunity the case was scheduled for trial. The DOC agreed to dettle the case for $70,000.00, according to the Denver Post. David Lane, Mervin's lawyer, said the DOC had initially offered to settle the suit for $1,000.00. Lane said "we'd accept the offer if DOC Secretary Zavaras would agree to spend one night sharing a cell with Marvin Gray." Apparently not spending a night with Gray was worth, $69,000.00, in Colorado taxpayers money to Zarvaras. Lane commented "Prisoners' civil rights cases are the lowest priority in our court system. It's one resaon why this kind of unconcionaable prison brutality continues. We allow the system to get away with it."

(Readers should note that this is an unpublished decision.) See: Mervin v. Furlong, Case No. 991135 (10th Cir. 2000).

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Related legal case

Mervin v. Furlong

[U] Mervin v. Furlong, 208 F.3d 226 (10th Cir. 03/06/2000)

[1] U.S. Court of Appeals, Tenth Circuit

[2] No. 99-1135

[3] 208 F.3d 226, 2000

[4] March 06, 2000


[6] (D.C. No. 93-N-2129) (D.Colo.)

[7] Before Briscoe and Porfilio, Circuit Judges, and Rogers, Senior District Judge. *fn2

[8] The opinion of the court was delivered by: Richard D. Rogers District Judge


[10] Plaintiff brought this action against the defendants, correctional officers at Limon Correctional Facility (LCF) in Limon, Colorado, pursuant to 42 U.S.C. § 1983 for alleged violations of his rights under the Eighth Amendment to the United States Constitution. Plaintiff contended that the defendants failed to protect him from a physical and sexual assault by another inmate. This is an appeal from the district court's denial of summary judgment to the defendants based on qualified immunity. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

[11] I.

[12] This court reviews the district court's denial of qualified immunity on summary judgment de novo. Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir. 1998). As with other summary judgment appeals, we review the evidence in the light most favorable to the nonmoving party. Id. When we review summary judgment decisions involving a qualified immunity defense, however, our review differs from other summary judgment rulings in that we must follow the analytical framework established in Siegert v. Gilley, 500 U.S. 226, 231-33 (1991). Id. First, we must determine whether the plaintiff has alleged a violation of a constitutional right. See Siegert, 500 U.S. at 231-32; Radecki, 146 F.3d at 1229. Second, we must consider whether the right allegedly implicated was clearly established at the time of the events in question. Radecki, 146 F.3d at 1229. "Whether a plaintiff has alleged conduct by a defendant that violates the Constitution and whether that prior law clearly prohibited the defendant's conduct are questions of law that we review de novo." Id.

[13] II.

[14] The record, when viewed in the light most favorable to the plaintiff, shows the following events. In July 1993, plaintiff was an inmate at LCF. Marvin Gray, a large and powerful individual with a violent past, was also an inmate at that facility. Gray had previously been administratively punished in 1987 for raping another inmate.

[15] During the latter part of July, 1993, the defendants were made aware that Gray had brutally raped another inmate at LCF. During the investigation, the defendants did not remove Gray from general population. Rather, Gray was transferred within the institution to share a cell with plaintiff. On the night of July 24th, Gray assaulted plaintiff. He choked, beat and raped him. Mervin reported the assault on the morning of July 25th and the defendants then took steps to isolate Gray.

[16] The defendants do not contest in this appeal that the allegations made by the plaintiff establish a violation of a constitutional right. Rather, they contend only that the law concerning an inmate's right to safety in prison in 1993 was not clearly established. They argue that the law did not become clear until the Supreme Court's decision in Farmer v. Brennan, 511 U.S. 825 (1994), one year after the incident in this case.

[17] III.

[18] A government official is entitled to qualified immunity from civil damages when his "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant pleads qualified immunity, the plaintiff must make the following two-part showing: (1) demonstrate that the defendant's actions violated a constitutional or statutory right; and (2) show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue. Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). In order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains. Clanton v. Cooper, 129 F.3d 1147, 1156 (10th Cir. 1997). The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right. V-1 Oil Co. v. Means, 94 F.3d 1420, 1423 (10th Cir. 1996). This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Id.

[19] IV.

[20] The law is well-settled that the Eighth Amendment requires prison officials to "take reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). Suffering physical assaults while in prison is not "part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). A prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be objectively, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). For a claim like this one, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Helling v. McKinney, 509 U.S. 25, 35 (1993). Second, the official must have acted with "deliberate indifference" to inmate health or safety. Wilson, 501 U.S. at 302-03.

[21] In Farmer, the Supreme Court clarified the "deliberate indifference" standard. The Court explicitly rejected an objective test and held that the Eighth Amendment deliberate indifference standard is subjective. Farmer, 511 U.S. at 837. A prison official who "knows of and disregards an excessive risk to inmate health or safety" is deliberately indifferent for these purposes. Id.

[22] The arguments of the defendants fail to acknowledge two distinct lines of cases. In the prison context, the Supreme Court and other courts have established two very different standards depending upon the circumstances. In the normal prison custodial situation, courts have long applied "deliberate indifference" as the standard. See Estelle v. Gamble, 429 U.S. 97, 104, 106 (1976); accord County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998). In violent disturbance or excessive force situations, courts have applied a "malicious and sadistic" standard of liability. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986); accord Lewis, 523 U.S. at 852-53. The defendants have confused these differing standards and their application to the particular circumstances of the cases cited. The application of the deliberate indifference standard to the duty of prison officials to protect prisoners from each other has long been established. The fact that several cases from this Circuit addressing inmate-on-inmate violence cite Whitley rather than Estelle does not absolve the defendants from liability. These cases do not cite Whitley for the proposition that the "malicious and sadistic" test applies to claims involving assaults by other inmates. Instead, these cases cite Whitley and its progeny for the proposition that "obdurate and wanton" conduct by prison officials violates the Eighth Amendment--a point that is entirely consistent with Estelle.

[23] Nor does the definition of "deliberate indifference" announced by the Supreme Court in Farmer absolve the defendants from liability. In Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) we considered an Eighth Amendment claim by relatives of a prisoner who had been murdered by fellow inmates. In applying the deliberate indifference standard, we determined that a prison official acts with deliberate indifference if his conduct disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights. 900 F.2d at 1496. Contrary to the argument of the defendants, subsequent Tenth Circuit decisions did not change or confuse this standard. The Supreme Court in Farmer rejected this definition of "deliberate indifference." The standard adopted by the Court heightened the requirements for a finding of deliberate indifference. This subsequent change in the law does not create any confusion where the law was well-settled in the Tenth Circuit prior to it. The change in the law does not benefit the defendants where the facts support a constitutional violation under both Berry and Farmer. The definition adopted by the Court in Farmer created a higher standard for the plaintiff to meet. Accordingly, we do not find that the defendants were entitled to qualified immunity. The decision of the district court is AFFIRMED.

[24] Entered for the Court


Opinion Footnotes


[25] *fn1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R.36.3.

[26] *fn2 The Honorable Richard D. Rogers, Senior United States District Judge for the District of Kansas, sitting by designation.