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Nebraska: Portions of Lawsuit over Guard’s Sexual Assault Allowed to Proceed

Last year, the Nebraska Court of Appeals held a prisoner’s claim alleging an intentional tort related to a sexual assault by a guard was barred by the State Tort Claims Act (STCA), but claims of intentional and negligent infliction of emotional distress related to the reporting of the assault had been improperly dismissed. The appellate court further held that constitutional claims against defendants in their individual capacity were viable claims.

While at the Omaha Correctional Center (OCC), a male prisoner identified only as “D.M.” was approached by guard Anthony Hansen on December 10, 2011 with a proposition to meet in the chapel to engage in sexual activity. D.M. attempted to avoid and deflect Hansen’s sexual advances. Hansen later approached D.M. and told him there were cameras in the chapel and they should meet in a common area.

D.M. again tried to deflect the sexual advance, but Hansen began to talk about D.M.’s parole date, which D.M. interpreted as a threat to cause him to lose “good time” or be placed in segregation. Reluctantly, D.M. met Hansen in a common area.

At that point, “Hansen shoved D.M. into a wall and forcibly kissed him, pushed him down to his knees, and ejaculated into D.M.’s mouth. D.M. preserved Hansen’s bodily fluids in a napkin,” the Court of Appeals wrote.

D.M. reported the incident to his unit manager, which resulted in his placement in disciplinary segregation for over 30 days while an investigation was conducted. On numerous occasions, another guard visited D.M.’s segregation cell and threatened him with more time for lying, saying D.M. was “ruining” Hansen’s life. During the investigation Hansen was allowed to continue working before being placed on paid leave.

DNA testing confirmed the bodily fluids collected by D.M. belonged to Hansen, who subsequently pled guilty to sexual assault. [See: PLN, April 2012, p.1]. D.M. was transferred from a minimum-security prison to a maximum-security facility following the investigation. After his release from prison, he filed suit. The trial court dismissed his complaint, finding that all causes of action stemming from the assault were intentional torts subject to sovereign immunity under the STCA.

D.M. appealed, and the appellate court concluded that to “determine whether a claim arises from an intentional assault or battery and is therefore barred by sovereign immunity pursuant to the intentional tort exception, a court must ascertain whether the alleged negligence was the breach of duty to select or supervise the employee-tortfeasor or the breach of some separate duty independent from the employment relation.” The Court of Appeals held that D.M.’s claims arising from the sexual assault were barred by the STCA.

As to his claims for intentional and negligent infliction of emotional distress, however, those claims arose when D.M. “was punished and retaliated against by different OCC employees for reporting the assault and ... he was placed in solitary confinement and subjected to threats of legal action or prosecution for perjury for making his report.” That was separate and distinct conduct from the sexual assault, and the trial court had erred in dismissing such claims.

D.M.’s claims related to negligent hiring and supervision were properly dismissed, as were constitutional claims against the defendants in their official capacities. The constitutional claims against Hansen and several other defendants in their individual capacities were allowed to proceed, and the trial court’s order was reversed in part and affirmed in part. See: D.M. v. State of Nebraska, 23 Neb. App. 17, 867 N.W.2d 622 (Neb. Ct. App. 2015). 

Related legal case

D.M. v. State of Nebraska


 

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