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Former Kansas Prisoner’s Sexual Misconduct Suit Overcomes Qualified Immunity

The Tenth Circuit has affirmed the denial of qualified immunity to a warden in a civil rights action that alleged he created and allowed a policy or culture of sexual misconduct and failed to take reasonable measures to abate that culture of sexual misconduct at a Kansas women’s prison.

The lawsuit was brought by former Topeka Correctional Facility (TCF) prisoner Tracy Keith. Her suit, filed in federal district court, alleged that while she participated in a vocational training program at TCF her instructor, Ananstacio Gallardo, engaged in sexual misconduct with her in October 2007. Keith became pregnant as a result, and her pregnancy was terminated. [See: PLN, May 2010, p.18]. Gallardo pleaded guilty in June 2008 to a charge of unlawful sexual relations and two charges of trafficking contraband. He was placed on two years’ probation and required to register as a sex offender.

Keith filed her civil rights suit in May 2011; she attached to the complaint a 2010 Kansas Legislative Post Audit Report that contained multiple findings regarding sexual misconduct at TCF. The district court granted qualified immunity to all the defendants except Gallardo and former TCF Warden Richard D. Koerner. Koerner appealed.

The Tenth Circuit noted that a supervisory official could be held liable under the claims alleged by Keith, stating, “it is clearly established that a prison official’s deliberate indifference to sexual abuse by prison employees violates the Eighth Amendment.... Such a violation occurs where ‘the official knows of and disregards an excessive risk to inmate health or safety,’ and there is an affirmative link between the constitutional deprivation and the supervisor’s actions.”

The appellate court cited four reasons why the case could not be subject to a motion to dismiss. First, Keith pointed to reports of at least 54 incidents of sexual misconduct and 33 incidents of undue familiarity involving staff and prisoners at TCF between 2005 and 2009, and to a 2005 lawsuit over strip searches at TCF, suggesting that Koerner had knowledge of those incidents. Next, she pointed to the Post Audit Report’s findings of inconsistent staff discipline, failure to investigate and failure to terminate employees in response to substantiated complaints of sexual misconduct and undue familiarity.

Third, she alleged facts that tended to show the existence of structural policy issues that contributed to sexual misconduct at TCF. On that point, the Post Audit Report noted that “policy decisions – particularly decisions not to address known problems with the vocational training program and the insufficient use of cameras to monitor inmates and staff – made TCF ‘ripe for staff misconduct.’” Finally, Keith alleged that a lack of training programs tailored to the all-female population at TCF contributed to sexual misconduct at the facility.

The Court of Appeals concluded that those allegations, which must be accepted as true when considering a motion to dismiss, were sufficient to defeat a grant of qualified immunity to the defendants. The district court’s judgment was therefore affirmed and the case remanded for further proceedings, where it remains pending. See: Keith v. Koerner, 707 F.3d 1185 (10th Cir. 2013).

In February 2013, Gallardo was sentenced in an unrelated federal prosecution to five years in prison and five years on supervised release for possessing firearms during a drug-related crime that involved distribution of methamphetamine. On April 5, 2013, the Kansas Court of Appeals held that Gallardo was not required to register as a sex offender as part of his state conviction for unlawful sexual relations. See: State v. Gallardo, 48 Kan. App. 2d 756, 300 P.3d 89 (Kan. Ct. App. 2013).

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