W. Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 13-0037

Decision Date31 October 2014
Docket NumberNo. 13-0037,13-0037
CourtWest Virginia Supreme Court
PartiesWest Virginia Regional Jail and Correctional Facility Authority v. A.B.

Davis, C.J., dissenting:

While confined at the Southern Regional Jail, the plaintiff alleged that she was raped on seventeen (17) different occasions by a correctional officer. The plaintiff sued the rapist and his employer, the West Virginia Regional Jail and Correctional Facility Authority ("the Regional Jail"). The Regional Jail moved for summary judgment on the grounds of qualified immunity. The trial court denied the motion, and the Regional Jail appealed. The majority opinion reversed after determining, in essence, that the Regional Jail does not have a duty to protect female prisoners from being raped by the correctional officers it employs. The majority opinion also tersely rejected the circuit court's determination that the special relationship doctrine precluded summary judgment. For the reasons set out below, I dissent.

A. Continued Denial of Justice on Rehearing

"I have noted on several occasions that '[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.'" Savilla v. Speedway Superamerica, LLC, 219 W. Va. 758, 773, 639 S.E.2d 850, 865 (2006) (Davis, C.J., dissenting), overruled by Murphy v. Eastern Am. Energy Corp., 224 W. Va. 95, 680 S.E.2d 110 (2009). See also Bass v. Rose, 216 W. Va. 587, 593 n.1, 609 S.E.2d 848, 854 n.1 (2004)(Davis, J. dissenting); State v. Harris, 207 W. Va. 275, 281 n.1, 531 S.E.2d 340, 346 n.1 (2000) (Davis, J., concurring). The majority opinion had a golden opportunity in rehearing this case: The opportunity to correct a grave injustice done to the victim and to our law on governmental immunity. Unfortunately, the majority instead chose to ignore the reality of the injustice it has unleashed.

The basic issue in this case and the reason for my dissent has not changed. This case is not about whether the correctional officer who raped the plaintiff was acting outside the scope of his employment. Common sense dictates that the Regional Jail did not hire the correction officer to rape the plaintiff and other inmates as part of his job duties. The focus of this case was on what the Regional Jail did to assure the reasonable safety of the plaintiff from being raped. If one reads the majority opinion line by line, and even in between the lines, you will find no discussion of what practical measures the Regional Jail used to monitor the interaction between male correctional officers and female prisoners. The basis for liability against the Regional Jail is its failure to provide even the most basic monitoring procedures. Thus, the majority's failure to discuss the same is simply inexcusable.

In a recent newspaper article it was reported that the Regional Jail began compiling reports of sexual assault in 2013, after the new federal Prison Rape EliminationAct standards took effect.1 According to the article, data was released going back to 2008 showing that reports of sexual assaults in West Virginia prisons increased from twenty-five allegations in 2008 to 229 allegations in 2013. The data also showed that there were thirty-six reported allegations of staff sexual misconduct in 2013 and fifty allegations of staff sexual misconduct in 2014. Erin Beck, More Inmates Reporting Sexual Assault in W.Va., Charleston Gazette (October 26, 2014).2 Under the majority opinion, these numbers mean absolutely nothing, because the Regional Jail can never be held accountable for its failure to provide basic protections to women behind bars.

Other than this new section, the remainder of my dissent is unchanged from the its previous filing. The new majority opinion has added nothing to alter the basic principles of my dissent.

B. Qualified Immunity

In order to find that the Regional Jail is immune from liability when female inmates are raped with impunity by correctional officials, the majority opinion recast our lawon qualified immunity in such a manner as to make it now virtually impossible for any state agency, not just the Regional Jail, to ever be held accountable for tortious conduct committed by employees within the scope of their employment. I do not make this accusation lightly. The decision in Heckenlaible v. Virginia Peninsula Regional Jail Authority, 491 F. Supp. 2d 544 (E.D. Va. 2007), helps to illustrate the true impact of the majority opinion.

Before examining Heckenlaible, it is appropriate to review the constitutionally recognized "liberty interest in the integrity of the human body." Farrell, ex rel. Farrell v. Transylvania Cnty. Bd. of Educ., 682 S.E.2d 224, 230 (N.C. Ct. App. 2009). "The liberty interest protected by substantive due process encompasses the right to be free from state intrusion upon one's bodily security and personal privacy. State action which 'shocks the conscience' or runs counter to 'certain decencies of civilized conduct' violates the due process clause." Jane Doe A v. Special Sch. Dist. of St. Louis Cnty., 682 F. Supp. 451, 457 (E.D. Mo. 1988). "[C]ourts uniformly hold that the right to be free from sexual abuse-the logical extension of the right to bodily security-is well established." Arbaugh v. Board of Educ., County of Pendleton, 329 F. Supp. 2d 762, 770 (N.D. W. Va. 2004). Accord Doe ex rel. Doe v. City of Roseville, 296 F.3d 431, 435, 438 (6th Cir. 2002); Doe v. Gooden, 214 F.3d 952, 956 (8th Cir. 2000); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir.1994); Hinkley v. Baker, 122 F. Supp. 2d 48, 51 (D. Me. 2000). Indeed, the United States Supreme Court has commented that "[a]mong the historic liberties so protected [by the Fifthand Fourteenth Amendments] was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1977). In the context of corporal punishment of children by school officials, the Fourth Circuit summarized the constitutional protection afforded the human body in Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980):

[Citizens have] the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court. The existence of this right to ultimate bodily security the most fundamental aspect of personal privacyis unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process. Numerous cases in a variety of contexts recognize it as a last line of defense against those literally outrageous abuses of official power whose very variety makes formulation of a more precise standard impossible. Clearly recognized in persons charged with or suspected of crime and in the custody of police officers[.]

Hall, 621 F.2d at 613. In the instant case, the plaintiff's constitutional right to be free "from invasion of her personal security through sexual abuse, was well-established at the time the assaults upon her occurred." Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3rd Cir. 1989). As a result of this well recognized constitutional protection, the majority opinion should have applied the analysis and reasoning in Heckenlaible in order to affirm the circuit court's decision in the instant case.

The plaintiff in Heckenlaible sued a correctional officer and his employer,Virginia Peninsula Regional Jail Authority, for sexual assault while she was confined in jail. The defendant, Peninsula Regional Jail, moved for summary judgment on several grounds, including the contention that it could not be held liable under the theory of respondent superior.3 The federal district court disagreed with the defendant as follows:

[A] jury issue may exist as to whether an employee's wrongful act occurred within the scope of employment notwithstanding the fact that the employee's act violated an employer's rules or directives. Ultimately, the issue for the court to resolve is whether the service itself, in which the tortious act was done, was within the ordinary course of [the employer's] business.
[T]his was not a case where a wrongful act occurred in the workplace merely because an employee was in a particular location at a particular time as a result of his employment. Steele's duties as a correctional officer required him to observe inmates in the shower, and the alleged sexual assault occurred after he observed Heckenlaible showering and during a "cell search" thereafter. Steele's impulse to have sexual contact with Heckenlaible may well have arisen, at least in part, from the fact that he was required to view Heckenlaible while she was unclothed in the shower. In light of these circumstances, a reasonable juror could conclude that the alleged sexual assault arose out of Steele's performance of his duties.

Moreover, viewing the facts in the light most favorable to Heckenlaible, Steele was actively engaged in the performance of his job duties, which included supervising Heckenlaible and the other inmates in the medical unit, when the wrongful act occurred. Steele was supervising Heckenlaible when he accompanied her to the shower, looked at her while she showered, and returned her to her cell afterwards. In addition,

he ultimately entered her cell on the pretense of conducting a cell search, and cell searches are also among the duties of a correctional officer. It follows that a reasonable juror could conclude that when the wrongful act occurred, Steele was engaged in a service, namely, the supervision of Heckenlaible, that was within the ordinary course of the Jail Authority's business. A reasonable juror could reach this conclusion notwithstanding the fact that Steele violated the Jail Authority's policies when he had a sexual encounter with Heckenlaible.
Furthermore, the instant case reflects a situation where special circumstances related to employment facilitated the
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