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West Virginia Pretrial Detainee’s Lawsuit for Sexual Abuse Survives Dismissal Stage

by David M. Reutter

On June 9, 2023, the Supreme Court of Appeals of West Virginia affirmed denial of defendant state prison officials’ motion to dismiss all but a negligent supervision and training claim that arose from a sexual and physical assault on a pretrial detainee at Potomac Highlands Regional Jail (PHRJ).

During the 48 hours that Damein Robbins spent at PHRJ in July 2018, he claimed that a guard, within ear shot of other detainees, elicited from him that he was a sex offender, in violation of the Prison Rape Elimination Act, 42 U.S.C. ch. 147 § 15601 et seq. It was further alleged that this substantially increased the possibility that other detainees would harm him. After other detainees issued threats, Robbins requested a move that resulted in transfer to a segregated housing unit.

There Robbins alleged that guard Byron Whetzel allowed three detainees to enter his cell. Upon entry, the detainees closed the door and covered the cell’s windows with paper, after which Robbins said he was “(1) sodomized with a broom handle; (2) forced to drink urine; (3) forced to eat feces; (4) threatened with a ‘makeshift weapon,’ which the assailants also used to cut his hair; (5) paraded by his assailants through felony pod A-6 to ‘show off’ his condition and humiliate him; and (6) threatened with death should he tell anyone of the assault.”

Robbins also alleged that Whetzel saw him being “show[n] off” but did not intervene. He further claimed guard Isaiah Blancarte was the pod “rover” during the assault, and that he and Whetzel allowed the assailants to roam around the pod and enter his cell.

Robbins was processed out of jail in the late afternoon of July 22, 2018. His wife took him to a hospital, where he was transferred to a trauma ward until July 25, 2018. He claimed his ribs were broken and his orbital bone shattered. The other detainees were convicted of charges related to the assault. Whetzel was fired after an investigation by the West Virginia Division of Corrections and Rehabilitation (DCR).

The civil rights complaint that Robbins filed in Circuit Court of Hampshire County named DCR, Whetzel, Blancarte and two “John Doe” guards as defendants. DCR, Whetzel and Blancarte moved to dismiss by asserting qualified immunity (QI). The Circuit Court denied their motions in October 2021, and the defendants appealed.

The Supreme Court of Appeals began its analysis with the claims against Whetzel and Blancarte. They conceded Robbins alleged sufficient facts to establish the objective component of an Eighth Amendment violation. In dispute was the subjective component.

The Court noted that Whetzel, who was the control room officer, not only allegedly left Robbins’ cell unlocked but also saw Robbins “[d]uring the assault” be “paraded around the pod to other cells for the purpose of humiliating him and to ‘show off’ what was done to him.” The Court found the first allegation permits a “key inference: that Robbins’ injuries were obvious while the assault continued.” The second allegation, that Whetzel saw the parade and the obvious injuries requires no inference. Yet Whetzel did not intervene.

Blancarte presented a closer call, but the Court said it could be inferred that as the pod “rover” he was aware of what was occurring. Thus, the Court found Robbins’ complaint set forth sufficient facts to support an alleged violation of his right to be free from sexual assault by other detainees. As that right was clearly established at the time, Whetzel and Blancarte were not entitled to QI and their motion to dismiss was properly denied.

But the Court found Robbins failed to make sufficient allegations against DCR to support a constitutional claim for failure to train and supervise guards. That claim, therefore, was properly dismissed. The Court then turned to the vicarious liability claim against DCR and said that claim was improperly dismissed, for “intentional or reckless acts of an employee or supervisor may be imputed to the employer, if those acts were committed within the scope of employment.” Since the complaint made the necessary allegations to survive dismissal on that claim, the circuit court’s order was affirmed in part and reversed in part. Robbins was represented by attorneys J. Daniel Kirkland and Gregory A. Bailey of Arnold & Bailey, PLLC, in Charles Town. See: W. Va. Div. of Corr. & Rehab. v. Robbins, 889 S.E.2d 88 (W. Va. 2023).  

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Related legal case

W. Va. Div. of Corr. & Rehab. v. Robbins