Eighth Circuit Revives Case Against Guards Who Failed to Intervene As Chaplain Sexually Assaulted Arkansas Prisoner
by Michael Thompson
Officials at the McPherson Unit in the Arkansas Department of Corrections turned a blind eye as Chaplain Kenneth DeWitt sexually abused several prisoners for years. The chaplain has since pled guilty to sexual assault in the third degree for 50 counts, for which he was given five years in prison and five years as a suspended sentence.
One of the victims in the serial abuse case bravely sued the people who should have stopped it for failure protect and failure to supervise. She likewise made a claim of retaliation and civil conspiracy. The defendants moved for summary judgment but on September 30, 2024, the district court found the victim’s claims to be substantiated with regard to failure to supervise and failure to protect in some combination to Deputy Wardens Nurzuhal Faust and Christopher Budnik, and Captain Linda Dykes. See: Arnett v. Norris, 2024 U.S. Dist. LEXIS 178389 (E.D. Ark.). Those three defendants appealed.
The victim endured weekly abuse at a unit that had already been found by the Department of Justice to be in violation of 2003’s Prison Rape Elimination Act (PREA). Every week on a specific day during an early morning count, the chaplain would call her into his office to be abused and block the so-called “PREA window” in the door that, according to policy, should never be blocked. He also blocked another window looking into his office, but testimony varied on the policy regarding its blockage.
Warden Faust’s office is just around 30 feet from the chaplain’s office, in the same hallway on the same side. Furthermore, it was noted in the district court’s decision that, during the assaultive period, an inadequate count process, for which no one has been disciplined, failed to capture that the victims were in the chaplain’s office. At least three victims were called into DeWitt’s office (for “special training” in one case) with Warden Faust making frequent trips by the blocked windows where they were being abused, yet Faust claims to have seen nothing.
Deputy Warden Budnik’s office was likewise just “50 steps” from DeWitt’s. Budnik was also tasked with making “daily rounds looking for issues at the facility.” The complaining victim testified that in one instance, Budnik walked into the office just after DeWitt completed his assault. Somehow, Budnik failed take notice of DeWitt “acting funny” and adjusting his pants.
Captain Dykes was also tasked with making rounds in that hallway. In particular, an obstructed PREA window should have warranted action. Ms. Dykes says she would not have been concerned if the non-PREA window were covered, even if the chaplain were alone with a female prisoner in his office.
The Eighth Circuit affirmed the lower court’s finding that denied qualified immunity for both failure to protect and failure to supervise. The standard for a failure to supervise is difficult to overcome, a rigorous standard according the Eighth Circuit: “The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” Faust and Budnik had the supervisory authority and failed to take remedial action; their apparent failure cost them their qualified immunity.
All three failed to protect the victims. As the Court concluded, “Nothing in this record clearly contradicts the district court’s factual determinations or [the victim’s] assertions” that they failed to protect her. Again, they accordingly lost their qualified immunity. See: Arnett v. Norris, 160 F.4th 921 (8th Cir. 2025).
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Related legal case
Arnett v. Norris
| Year | 2025 |
|---|---|
| Cite | 160 F.4th 921 (8th Cir. 2025) |
| Level | Court of Appeals |