Eighth Circuit: Arkansas Prisoner Who Had Consensual Sex With Guard Cannot Sustain Eighth Amendment Claim
by Matt Clarke
On September 20, 2024, the United States Court of Appeals for the Eighth Circuit held that a prisoner’s consensual sexual encounters with a guard cannot, as a matter of law, constitute the pain required to sustain a claim under the Eighth Amendment. Though a blow to Arkansas prisoner Angela Richardson, the ruling offers other prisoners important guidance in making claims for “cruel and unusual punishment” in the wake of staff sexual misconduct.
Richardson was an Arkansas Department of Corrections (DOC) prisoner incarcerated at the McPherson Unit when she met Krystle Reed Duncan, a guard stationed at the prison’s medical facilities. Between November 2018 and January 2019, a relationship developed between them. It started with Richardson trusting Duncan and confiding in her before the couple advanced to kissing; eventually, Richardson digitally penetrated Duncan’s vagina.
The guard must have enjoyed herself; she “contacted Richardson by email and regular mail,” the Court recalled, “and occasionally deposited money into her account at the prison.” In turn, Richardson spent time in the medical unit with the guard while she was on duty. Richardson later reported that she “felt safe” with Duncan. But she had experienced retaliation after reporting a prior sexual assault so she told no one about their relationship except a single family member.
After Duncan was fired in January 2019, the two kept in touch with letters. But then Richardson learned that Duncan had been “sexually involved with other inmates,” which left her feeling like “just another victim” and caused her to suffer “emotional distress.” In late 2020, Richardson told prison authorities about her sexual contact with Duncan.
She then filed a handwritten federal civil rights complaint pro se in federal court for the Eastern District of Arkansas, alleging that the sexual contact between her and Duncan constituted sexual harassment and sexual assault, in violation of the prisoner’s Eighth Amendment rights. Duncan “never answered Richardson’s complaint or otherwise participated in this litigation,” the Court continued, so “the clerk of the court entered Duncan’s default” under Fed. Rule Civ. Proc. (FRCP) 55(a).
A magistrate judge then held a hearing under FRCP 55(b) and recommended vacating the default and dismissing the complaint for failure to state a claim upon which relief can be granted. Why? Because Richardson alleged only consensual sexual activity with Richardson. There was no allegation that Duncan “would have used her position to harm” the prisoner had she declined a sexual relationship. Nor was there any claim that she told Duncan, “by conduct or words, that she was not a willing participant in their relationship.” The district court then adopted the magistrate’s recommendations and dismissed the complaint without prejudice. With the assistance of Pine Bluff attorney Geoffrey D. Kearney, Richardson appealed.
The Eighth Circuit began and ended its analysis by looking to Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), which held that “welcome and voluntary sexual interactions, no matter how inappropriate, cannot as a matter of law constitute ‘pain’ as contemplated by the Eighth Amendment”—meaning they fail to satisfy the objective component of a cruel and unusual punishment inquiry.
Dissenting to dismissal of Richardson’s case, Judge Michael J. Melloy asked the important questions that the rest of the Court ignored. What about the money that the guard gave the prisoner—who is incarcerated in Arkansas, one of eight state paying prisoners zero for their work? Melloy found it “very difficult to conclude a sexual relationship is truly voluntary in a prison setting when a prison guard pays money for sex.” Beyond that, what about Richardson’s fear of retaliation? It had happened to her before, making her reluctant to report the incidents—unlike Freitas, who admitted that he was neither reluctant nor fearful. Finally, what about Duncan’s promise to protect Richardson once they were intimate? There are more ways to extort sex than with money.
Melloy said these allegations in the complaint call into “question whether the relationship was voluntary.” The majority, however, didn’t consider these questions and dismissed the complaint. A request for rehearing before the entire Eighth Circuit en banc was also denied on December 3, 2024. See: Richardson v. Duncan, 117 F.4th 1025 (8th Cir. 2024); and 2024 U.S. App. LEXIS 32572 (8th Cir.).
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