Graham v. Sheriff of Logan Cnty.

• Decision Date: 20 December 2013
• Docket Number: No. 12–6302.,12–6302.
• Citation: 741 F.3d 1118
• Parties: Stacy GRAHAM, Plaintiff–Appellant, v. SHERIFF OF LOGAN COUNTY; Rahmel Frances Jefferies; Alexander Alicides Mendez, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

741 F.3d 1118

Stacy GRAHAM, Plaintiff–Appellant,

v.SHERIFF OF LOGAN COUNTY; Rahmel Frances Jefferies; Alexander Alicides Mendez, Defendants–Appellees.

No. 12–6302.

United States Court of Appeals,Tenth Circuit.

Dec. 20, 2013.

Michael L. Bardrick, Oklahoma City, OK, for Plaintiff–Appellant.

Daniel J. Card, Pierce Couch Hendrickson Baysinger & Green, and David W. Lee, Lee Law Center. P.C., (Robert S. Lafferrandre and Randall J. Wood, Pierce Couch Hendrickson Baysinger & Green; Emily B. Fagan, Lee Law Center; and Chris J. Collins and Philip W. Anderson, Collins Zorn & Wagner, P.C., with them on the briefs), Oklahoma City, OK, for Defendants–Appellees.

Before HARTZ, O'BRIEN, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

Two prison guards had sexual intercourse with Stacey Graham while she was in solitary confinement at the Logan County Jail in Oklahoma. The guards confessed and were fired immediately. Ms. Graham then sought damages in a civil-rights complaint under 42 U.S.C. § 1983 against the two guards and the county sheriff. She alleged a violation of the Eighth Amendment prohibition against cruel and unusual punishment, as applied to the states under the Fourteenth Amendment. The United States District Court for the Western District of Oklahoma granted the defendants' motion for summary judgment on the ground that the sexual acts were consensual. We have jurisdiction under 28 U.S.C. § 1291 and affirm. Although we recognize a need to examine consent carefully in the prison context, this case does not present a factual issue with regard to Ms. Graham's consent.

I. BACKGROUND

Ms. Graham was an inmate at the Logan County Jail, where defendants Rahmel Jefferies and Alexander Mendez were guards. Sometime between July 2009 and October 2009, Jefferies started speaking to Ms. Graham over the jail intercom system, which allowed guards in the control tower to speak to prisoners in their cells. Contact could be initiated by either the guard or the prisoner, but the guard could turn off the system. Ms. Graham and Jefferies began to talk about their likes, dislikes, interests, and families.

Over time they began to talk about having sexual intercourse, and Ms. Graham told Jefferies that she would like a man to make love to her. The two also exchanged sexually explicit notes. One note she wrote to him, but never delivered, stated:

Hey Sexy, Damn you look good in that uniform. I just want to rip it off of you. I can only imagine what you'll look like in that deputy uniform. Mmm ... the state troopers uniforms are real sexy! The hat and all. I look forward to f* *king you in, or around your patrol car. Damn, just the thought of that gets my nipples hard. I'm such a nympho! Can you deal with that? Because I want it all the time. Seriously, I think I might be a sex addict. So there's a little bit more you know about me. Have I freaked you out yet? I hope not cuz that's not my intention.... You haven't smiled for me. What's up? You down? Cheer up handsome. Peace.

Aplt.App. at 42–43. She signed the note “Trouble,” which was the nickname Jefferies had given her. Although the notes she had previously delivered to Jefferies were less explicit, they had suggested that she wished to have sexual intercourse with him. She testified at Mendez's trial that she enjoyed the conversations and note-writing and saw their exchanges as a “fling” and “something to do.” Aplee. App., Vol. 1 at 115. On one occasion she flashed her breasts at Jefferies, although he did not ask her to do so. She said that she did this “[f]or the hell of it.” Id. at 79.

On two occasions Jefferies had complied with requests from Ms. Graham—for a candy bar and a blanket. But she did not think that she had received any special treatment from him.

On October 7, 2009, a few weeks after Ms. Graham and Jefferies had begun conversing over the intercom, she was placed in solitary confinement for an unrelated disciplinary infraction. The next evening Mendez called her over the intercom in her cell and asked if she was asleep. Before that night the two had only had brief and appropriate contact. On this occasion, however, Mendez asked about her sexual fantasies and began to tell her about his own. She responded that her fantasy was to “be with two men at the same time.” Id. at 85. He asked who she would like him to bring. She said, “Bring Jefferies.” Id. at 86. He then asked if he could come down to her cell and look at her naked through the window, and she agreed. She testified that his request made her feel wanted and appreciated. When Mendez got to the cell, Ms. Graham, who was naked, stood up and let him look at her. Because the cell was completely dark, Mendez shined his flashlight through the cell-door window to see her. The encounter lasted 30 seconds or less.

In the early morning of October 9, 2009, either Jefferies or Mendez called Chris Haywood, a guard stationed in the control tower, to ask that Ms. Graham's cell be opened. When she heard her cell door slide open, she got up and found Mendez standing in the doorway with Jefferies behind him. She was wearing just her T-shirt. Mendez took it off and Ms. Graham kissed Jefferies. She testified that it was then “back and forth” between the two men, and both had their hands on her. Id. at 92–93.

Jefferies began to have intercourse with Ms. Graham while she simultaneously performed oral sex on Mendez. The two men then switched positions, although Mendez was able to penetrate her only briefly. Mendez then dropped his radio. She stood up at least partially, but Mendez, still trying to have sex with her, pushed her head back down toward Jefferies, saying, “Bend over, bitch,” and “Shhh.” Id. at 96. When, however, she heard another female inmate move and a coughing noise, Jefferies and Mendez fastened their pants and left the cell.

Haywood had become suspicious. When Jefferies and Mendez returned, he asked why they had been in the cell so long. They told him that Ms. Graham was a heavy sleeper, and that they had tried to wake her for a welfare check but could not.

Later that day another female inmate sent Major William Warner, the assistant jail administrator, a note stating that there was something going on between Ms. Graham and two officers. Warner questioned Ms. Graham, Mendez, and Jefferies. All stated that Jefferies and Mendez had entered the cell only to check on her.

During a search of Ms. Graham's cell three days later, officers found the above-quoted note that she had written to Jefferies. She stated that it was just to herself. On October 23 she was again placed in solitary confinement for a new disciplinary offense. After being there three days, she asked to speak to Warner. She told him that she had lied about the note found in her cell and that she had had sex with Mendez and Jefferies. She said that the sex was consensual. The jail administrator called the Oklahoma State Bureau of Investigation (OSBI) to investigate. When OSBI agent Michael Dean conducted a recorded interview, he asked her if the sex was consensual; she responded, “With Jefferies. I didn't really want Mendez there.” Id. at 323–24. When asked if she was forced or given any promises, she said no. She said that the reason she came forward was to “get it off [her] chest” because she felt guilty. Id. at 322–23. She later testified in her deposition in this case that she thought that what happened was wrong and that she felt she was “[s]upposed to be protected,” but that she would not have had the same concerns about the sexual acts if she had been free. Id. at 106–07. She also stated that she felt her “rights” were taken from her when she was incarcerated and that she had no “control over it.” Id. at 178.

Mendez and Jefferies were terminated immediately after admitting to having sex with Ms. Graham. She was transferred to another detention facility in early November 2009. While there, she told a psychologist that she had been raped by two jailers. She also stated that she was having trouble sleeping, that she was anxious, and that she felt that she was “shaking inside now all the time.” Id. at 182. She was given medication for anxiety and depression. Ms. Graham had a history of bipolar disorder and sexual abuse. But there is no indication that either Jefferies or Mendez was aware of or had reason to be aware of her mental-health issues.

On September 24, 2010, Ms. Graham filed this suit. Her amended complaint alleged two claims under 42 U.S.C. § 1983: (1) a claim against Mendez and Jefferies for violations of the Eighth and Fourteenth Amendments and (2) a claim against the Sheriff of Logan County for failure to discipline, supervise, and train Jefferies and Mendez. One might also read the complaint to allege Oklahoma tort claims. The district court granted the defendants' motion for summary judgment on the § 1983 claims, holding that “in light of the consensual sexual activity at issue in this case,” there was no Eighth Amendment violation. Aplt.App. at 57. The court also dismissed without prejudice any state-law claims, declining to exercise supplemental jurisdiction over the claims once all federal claims had been dismissed. Ms. Graham appeals, arguing that (1) her consent is a question of fact that must be decided by a jury, and (2) consent is not a valid defense to her claims. We disagree and affirm.

II. DISCUSSION

The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Sexual abuse of an inmate by an officer violates the Eighth Amendment. See Giron v. Corrs. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.1999). “Like the rape of an inmate by another inmate, sexual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is simply not part of the penalty that criminal offenders pay for their offenses against society.” Id. (brackets and internal quotation marks omitted).

Sexual abuse of a...