On December 17, 2002, while held at the Erie County Correctional Center, Vikki Cash was raped by guard Marchon C. Hamilton. Hamilton admitted to the sexual assault and pleaded guilty to third-degree rape. Cash then filed a state court lawsuit against Hamilton, Erie County, the Erie County Sheriff’s Department and Sheriff Patrick Gallivan. The suit was later removed to federal district court.
The court determined that the Sheriff’s Department and County were one entity. When the case went to trial in September 2008, Hamilton did not appear and a default judgment was entered against him.
At trial, Cash argued that her injuries occurred due to the County’s policy, practice and custom of allowing a lone, unsupervised male guard to supervise female prisoners. The jury agreed, and on Sept. 26, 2008 entered a verdict of liability against the county on that claim, awarding Cash $500,000.
However, the jury rejected the claim that Sheriff Gallivan was negligent for failing to ensure the personal safety and welfare of jail prisoners. Gallivan contended that the rape was not foreseeable and was the result of a rogue guard who had been properly supervised and had shown no signs of that type of behavior prior to the incident.
In a March 10, 2009 post-trial order, the district court granted the defendants’ motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a). The court found that Cash had proved that the jail had a policy or practice of allowing unsupervised male guards to oversee female prisoners. However, she failed to show deliberate indifference by the defendants, as she did not present proof that they were aware of “prior incidents of similar violations” resulting from that policy, which would have placed them on notice that “the policy of allowing male guards to be alone and unsupervised with female inmates presented a substantial risk of harm to the plaintiff.”
Consequently, final judgment was entered in favor of the County and Sheriff Gallivan. Both parties have since appealed to the Second Circuit. Cash is represented by Buffalo attorney Robert H. Perk and New York City attorney Derek S. Sells. See: Cash v. County of Erie, U.S.D.C. (W.D. New York), Case No. 1:04-cv-00182(M).
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Related legal case
Cash v. County of Erie
|U.S.D.C. (W.D. New York), Case No. 1:04-cv-00182(M)