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No Qualified Immunity for Guard Who Failed to Protect Prisoner from Sexual Abuse

On February 1, 2011, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s denial of qualified immunity to a guard accused of failing to protect a vulnerable prisoner from sexual assault, but reversed as to the denial of qualified immunity to three other guards.

Russell Bishop, a small 19-year-old with a slight build, was arrested and placed in the Mental Health Step-Down unit at a jail in Macomb County, Michigan on December l, 2004. Bishop had a history of mental problems. His cellmate, Char-lie Floyd, was a sexual predator.

Floyd sexually assaulted Bishop for nine days. Bishop allegedly informed guards about the assaults, but no action was taken until he told a jail psychologist what was happening.

According to Bishop, Floyd forced him to touch his penis, laid in bed with him, forced his pants down, tried to have sex with him and masturbated on him. Floyd also attempted to force Bishop to perform oral sex.

After Bishop was released from jail, he filed a 42 U.S.C. § 1983 suit against Macomb County Sheriff Mark Hackel and numerous jail employees.

Bishop alleged that the defendants failed to protect him from sexual assault. He put forth two theories to support his claims of deliberate indifference: 1) guards should have known not to put Floyd, a known sex offender, in the same cell with Bishop due to Bishop’s slight build, youth and mental problems, and 2) the small size of the Mental Health Step-Down unit allowed guards to hear the sexual abuse.

The district court denied qualified immunity to four guards, holding that Bishop’s claim that the guards had ignored his complaints was sufficient to preclude summary judgment. The guards filed an interlocutory appeal.

Turning first to the objective component of the deliberate indifference analysis, the Sixth Circuit held that Bishop had presented enough evidence of a “sufficiently serious” risk of harm, citing his youth, size, mental illness, lack of mental functioning and Floyd’s history of sexual abuse.

The subjective component is where the Sixth Circuit parted from the district court’s analysis. The Court of Appeals held the district court had erred in denying qualified immunity based on Bishop’s claim that he told guards at the jail about the assaults. During Bishop’s deposition, he could not identify or describe the guards he had complained to. This, according to the appellate court, made Bishop’s uncorroborated allegations of sexual abuse “demonstrably false.”

For three of the guards, there was insufficient evidence that they were subjectively aware of the risk Floyd posed to Bishop, the Court of Appeals concluded. Accordingly, the district court’s denial of qualified immunity to those defendants was reversed.

Only one of the guards, James Stanley, was properly denied qualified immunity, the appellate court reasoned, be-cause he had “substantially more interaction with Bishop than the other deputies.”

“Stanley was aware of Bishop’s personal characteristics because he testified that he talked to Bishop quite often on his rounds,” the Sixth Circuit wrote.

“Furthermore, Bishop present[ed] evidence from which a fact finder could conclude that Stanley was aware that Bishop belong[ed] to a class of prisoners particularly vulnerable to sexual assault.”

The judgment of the district court was accordingly affirmed in part and reversed in part. See: Bishop v. Hackel, 636 F.3d 757 (6th Cir. 2011).

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Related legal case

Bishop v. Hackel