Malbrough v. Holmes

Decision Date22 May 2023
Docket Number3:17-cv-283
CourtU.S. District Court — Southern District of Texas


This civil-rights and tort case arises from Nicole Malbrough's 2015 hospitalization at the University of Texas Medical Branch (UTMB) following cataract surgery. Malbrough-then in the custody of the Texas Department of Criminal Justice (TDCJ)-claims that correctional officer Jason Deon Holmes sexually assaulted her while she recuperated in a holding cell. Holmes does not deny that the parties had a sexual encounter but maintains that it was consensual.

Malbrough has asserted claims under 42 U.S.C. § 1983 for violations of her Fourth Amendment rights, including unreasonable seizure and unreasonable, unnecessary, and excessive force. Dkt. 25 ¶¶ 25-33. She also alleges assault and battery under Texas common law.[1]Id. ¶¶ 41-46.

Based on the evidence produced at a one-day bench trial as well as the parties' arguments and the applicable law, the court finds and concludes as follows:

• Malbrough did not prove by a preponderance of the evidence that Holmes sexually assaulted her or committed a battery during their encounter.
• Malbrough did not prove by a preponderance of the evidence that Holmes effected an unreasonable seizure during their encounter.
• Malbrough did not prove by a preponderance of the evidence that Holmes used unreasonable, unnecessary, or excessive force during their encounter.
• Holmes has no liability to Malbrough arising from their encounter.

The reasons for these rulings are set out below. Any findings of fact that are also, or only, conclusions of law are so deemed, and any conclusions of law that are also, or only findings of fact are likewise so deemed.

A. The Parties

The plaintiff is Nicole Malbrough, a 37-year-old woman. At the time of trial, she worked for Earth's Financial Freedom, which she describes as a credit-repair company. At the time of the incident, Malbrough was incarcerated at a TDCJ facility in Gatesville, serving a two-year sentence. The defendant is Jason Deon Holmes, a 33-year-old man. He currently works as a longshoreman. At the time of the incident, Holmes worked for TDCJ as a correctional officer, guarding inmates receiving medical care at UTMB.

B. Jurisdiction and Venue

This court has federal-question jurisdiction over this dispute under 28 U.S.C. § 1331 because this action arises out of 42 U.S.C. §§ 1981, 1983, and 1988. Venue is proper in the Southern District of Texas because the events giving rise to the claims asserted occurred within the district.

C. The Occurrence

On Friday, September 18, 2015, Malbrough underwent cataract surgery in her right eye at UTMB in Galveston.[2]Post-surgery, she rested in a small cell located at the back of the hospital in an area designated for inmate-patients. The room-accessible by a single, lockable door-consisted of a bed, a television set, a sink, and a toilet. There was a small window in the door. Malbrough occupied her room alone.

She remained at UTMB overnight on Saturday, September 19. As part of his duties, Holmes made routine rounds to check on inmates under the hospital's care. During these rounds, Holmes encountered Malbrough. She alleges that two different sexual assaults ensued over the course of the night; Holmes insists that they engaged in one consensual sexual encounter initiated by Malbrough. Malbrough and Holmes both produced contemporaneous written statements and testified during trial. The court summarizes their testimony below in subparts D and E.

On the evening of Sunday, September 20, during shower time, Malbrough asked Officer Shermika Hopkins for her name and for the name of the male officer she worked with that night and the night before. Dkt. 1182 at 20.[3]Officer Hopkins supplied both names and asked Malbrough if anything was wrong. Id. Malbrough answered no. Id.

On Monday, September 21, at around 4:00 a.m., Officer Sharaglyn Singleton entered Malbrough's cell to prepare her for discharge. Dkt. 118-2 at 21. When the officer noticed that Malbrough had packed a towel in her bag, she informed her that it belonged to UTMB and could not be transported. Id. Malbrough replied that she needed the towel because it contained her attacker's DNA and said that she had been sexually assaulted. Id. at 20, 21. Malbrough initially declined to provide more details, instead asking to speak with her family or the unit chaplain. Id. at 21.

At around 8:30 a.m., Malbrough related to Chaplain Deborah Phillips and Major Angela Chevalier her account of the attack. Id. at 4. She stated that at around 10:00 p.m. on September 19, a male officer entered her cell and attempted unsuccessfully to penetrate her anally with his penis, before inserting himself into her vagina and ejaculating. Id. at 4, 15, 17. Malbrough said two different attacks occurred. Id. at 4, 17. She told them she had cleaned herself off with the towel, and that she did not report the attack out of fear of retaliation. Id. at 4. She agreed to make a written statement and submit to a medical exam. Id.

Malbrough's written statement described her attacker as a “lightskinned complexion African[-]American” officer in glasses, wearing a blue short-sleeved polo TDCJ shirt and a keychain around his neck. Id. at 12. She claimed that at around 9:00 p.m., he came to her cell door and put a brown napkin up to the window bearing the phrase, “do you want to jump on this?”. Id. at 11. She asked, “jump on what?”. Id. He replied, “this,” before walking away. Id.

After 10:00 p.m. Malbrough said that Holmes returned, switched the lights on, and tapped on her cell window. Id. She pretended to be asleep. Id. He proceeded to unlock her door, sliding it open quietly, before he approached her bed and touched her buttocks. Id. She jumped up and witnessed him “grabbing on his penis.” Id. He again asked her if she wanted to do this, to which she answered, “No.” Id. Malbrough said she told him she was “very sleepy, drowsy, and had been given medication.” Id. Holmes left but returned two to three hours later, unlocked the door, approached Malbrough, removed his penis from his pants, grabbed her legs, and placed them over his shoulder. Id. He then attempted to force his penis into Malbrough's anus. Id. When that failed, he inserted his penis into her vagina and violently raped Malbrough. Id. She described hearing Holmes's keys rattling during the attack. Id. at 12.

Malbrough speculated in her statement that Holmes “heard something or someone,” leading him to jump up and run away, leaving her door open. Id. at 11. She eventually shut the door, but Holmes returned later in the night, and once again forced his penis into her vagina and ejaculated. Id. At that point she jumped up and pushed him away from her, spilling semen over her legs, feet, and the floor. Id. Holmes then left but returned a final time to relay information about getting a fan and to ask if she needed to go to the pill line. Id. at 12. She told him no. Id.

At around 9:34 a.m. on September 21, Malbrough was examined by a Sexual Assault Nurse Examiner (SANE). According to her report-admitted as Plaintiff's Exhibit 9 and Defense Exhibit 66-the SANE observed blood coming from Malbrough's cervical os but attributed this to menstruation, and found no signs of physical trauma. Dkts. 118-9 at 6-7; 88 at 284-85.

At around 11:58 p.m., after he reported for work, investigators interviewed Holmes about Malbrough's accusations. Dkt. 118-2 at 5. Holmes admitted to consensual sexual intercourse with Malbrough and acknowledged he had violated TDCJ rules but blamed his behavior on a sex addiction. Id. at 14. Holmes wrote a brief statement describing the encounter. Id.

Chaplain Phillips also provided a witness statement. Dkt. 118-2 at 17. She described how Malbrough told her that she had been raped by an officer who “kept singing a sexual song trying to entice her.” Id. Phillips also noted that Malbrough repeatedly told Holmes “no” during his attempts to penetrate her, but that she never yelled, screamed, or fought back. Id.

In Officer Hopkins's witness statement, she relates that Malbrough asked her on September 20 for her name and the name of the male officer she had worked with the evening before. Id. at 20. Hopkins did so and asked Malbrough if anything was wrong; Malbrough answered no. Id. Hopkins also notes that Officer Singleton told her that Malbrough was refusing to give up a towel because it contained DNA on it, and that she was crying and claiming she had been raped. Id. Malbrough urged Hopkins not to contact her supervisors to report the assault because she wanted to wait until she had returned to her unit to make a report. Id.

In Singleton's witness statement, she says that Malbrough refused to hand over a towel because it contained DNA and that she wanted to wait until she had returned to her unit to file a report. Dkt. 118-2 at 21.

Lieutenant Rickey Joe Turner also provided a statement, relating that Malbrough initially resisted providing details of her attack and instead asked to speak with a chaplain. Dkt. 118-2 at 22.

In inmate Tammy Crawford's statement, she reports that on the night of September 19 she observed Holmes enter Malbrough's cell and leave about ten minutes later but did not hear or see any sexual abuse. Id. at 16. Crawford also stated that she saw Holmes going to the room across from hers a “noticably [sic] odd amount of times.” Id.

Holmes ultimately pleaded guilty to violating Texas Penal Code § 39.04, which prohibits correctional officers from having sexual...

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