by Harold Hempstead
On July 25, 2022, Colorado agreed to pay former state prisoner Susan Ullery $300,000 to settle her claims that she was sexually harassed by a former guard — who also sexually assaulted her while she wore a wire for prison officials trying to catch him in the act. As described by one of Ullery’s attorneys, David Lane of Killmer, Lane & Newman LLP in Denver, the case is bizarre.
“Susie was working on the loading dock” at Denver Women’s Correctional Facility (DWCF) in 2014, the attorney said. Former guard Cpt. Bruce Bradley “was her superior officer — her boss,” Lane added, and “he’s got a foot fetish, which he admitted in a deposition.” Ullery and other female prisoner co-workers “took off their boots and were rubbing their feet, and [Bradley] came over for a ‘pedi-inspection,’” the attorney continued, recalling how the guard “would ask, ‘Do you wear toenail polish?’ and all of these foot-fetish questions.”
For the next two years, Ullery said she endured Bradley’s leering and sexually suggestive remarks, which included asking her to masturbate in front of him. Meanwhile her complaints to prison officials went nowhere. That is until April 2016, when those same officials suddenly changed their tune: They asked Ullery to wear a wire to record the errant guard’s misbehavior.
Having already been approved for parole, Ullery “didn’t want retaliation to result in her parole being denied,” Lane continued. “But after she said no, they started pressuring her, and she got nervous that they were going to mess with her parole.”
So Ullery agreed. She wore the wire, and prison officials snuck her through security. Bradley called her into his office and “started talking to her about the usual stuff: her feet, her breasts,” Lane said. “She told him, ‘There’s something wrong with you,’ [which] made him angry. He came around the desk and grabbed her in the crotch, grabbed her breasts. As she was struggling, she thought, ‘Where the hell are my protectors?’”
After wrestling for about five minutes, Ullery was finally rescued by prison officials. They then walked Bradley off the job. “Not that he faced any criminal charges for his behavior,” Lane noted. Instead, the guard was allowed to resign on May 31, 2016.
The following month, Ullery was released. With the aid of Lane and fellow attorney Iris Eytan of Eytan Nielsen LLC in Denver, Ullery then filed suit in federal court for the District of Colorado against the state Department of Corrections (DOC) and Executive Director Rick Raemisch, along with DWCF Warden David Johnson and Associate Warden Terry Jaques, DOC Chief Inspector General Danny Lake and Inspector General Investigator Scott Smith, and DWCF guards, including Bradley, Cpt. Ramona Avant, David Wang and David Urich.
Proceeding under 42 U.S.C. § 1983, Ullery accused Defendants of multiple civil rights violations: two Eighth Amendment claims, for excessive force used against her and a failure to protect her from Bradley’s predations; two Fourteenth Amendment substantive due process claims, for invasion of her “bodily integrity” and for a “state-created danger” by leaving Bradley on the job so long after his abuse was alleged by prisoners as far back as 2008; and a First Amendment retaliation claim.
The district court dismissed all claims against Raemisch, as well as those against any other defendant acting in his official capacity; those were barred by the Eleventh Amendment, as laid out in Colby v. Herrick, 849 F.3d 1273 (10th Cir. 2017).
Defendants also argued they were entitled to qualified immunity (QI) on the remaining claims, which the district court granted, except for the Eighth Amendment claims. Bradley’s alleged actions “are repugnant to contemporary standards of decency, and easily satisfy the objective prong of an Eighth Amendment excessive force claim,” as described in Hudson v. McMillian, 503 U.S. 1 (1992). Also, “the law was clearly established that [the guard’s] alleged conduct violated Plaintiff’s clearly established Eighth Amendment right to personal security and bodily integrity,” the district court added, citing Graham v. Sheriff of Logan Cty., 741 F.3d 1118 (10th Cir. 2013). Thus the motion to dismiss was denied on February 9, 2019. See: Ullery v. Raemisch, 2019 U.S. Dist. LEXIS 21775 (D. Colo.).
Defendants then turned to the U.S. Court of Appeals for the Tenth Circuit. But it considered the three alleged uses of excessive force Bradley exerted “by approach[ing] [Ullery] from behind and forcibly press[ing] his genitals into her buttocks … [while] lasciviously moan[ing] in her ear. … purposefully and knowingly us[ing] physical force against [her] by touching her breasts, pressing his groin against her, and forcibly grabbing and fondling her crotch without her consent.” The Court then said that “any one of these three uses of force on its own violated clearly established law.” Thus it affirmed the lower court’s decision on February 10, 2020. See: Ullery v. Bradley, 949 F.3d (10th Cir. 2020).
The parties then proceeded to reach their settlement agreement, which became final on August 4, 2022. Under its terms, the payment to Ullery included costs and attorney fees. See: Ullery v. Raemisch, USDC (D. Colo.), Case No. 1:18-cv-00839.
Additional source: Westword
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