Withers v. Levine, Civ. No. Y-74-356.

• Decision Date: 21 April 1978
• Docket Number: Civ. No. Y-74-356.
• Citation: 449 F. Supp. 473
• Parties: Edward WITHERS v. Mark A. LEVINE et al.
• Court: U.S. District Court — District of Maryland

449 F. Supp. 473

Edward WITHERS v. Mark A. LEVINE et al.

Civ. No. Y-74-356.

United States District Court, D. Maryland.

April 21, 1978.

Charles M. Kerr, Craig E. Smith, Baltimore, for plaintiff.

Donald R. Stutman, Asst. Atty. Gen., Baltimore, for defendants.

JOSEPH H. YOUNG, District Judge.

Edward Withers, presently incarcerated at the Maryland Penitentiary, brings this civil rights action pursuant to 42 U.S.C. § 1983 seeking compensatory, declaratory and injunctive relief against officials of the Maryland Division of Correction for failing to take reasonable measures to protect him from sexual assault. Plaintiff also alleges that the defendants breached their state tort law duty to afford reasonable protection to inmates.

Since the factual and legal bases for the two claims are substantially the same, they will be considered together. All findings of fact and conclusions of law are made in accordance with Rule 52 F.R.Civ.P., whether or not so stated.

I. PLAINTIFF WAS SEXUALLY ASSAULTED BY LEON REDD.

On November 1, 1973, Withers was transferred from the Maryland Correctional Institution (MCI) to the Maryland House of Correction (MHC) and placed in a two-man cell on the idle tier, already occupied by Leon Redd. Plaintiff alleges that Redd sexually assaulted him during his second night in the cell.

Plaintiff described the incident and surrounding circumstances as follows: on the night of November 2, 1973, at approximately 10:30 or 11:00 when the cell was locked, Redd held a razor blade to his neck, and used a considerable size advantage to force plaintiff to submit to homosexual activity. Plaintiff called for help and asked inmate Edward Haynes, who walked by the cell, to summon a guard. When Haynes passed the cell a second time, he chose not to involve himself in the incident, due to threats by Redd. After the rape, Redd also threatened to kill plaintiff if he called a guard. The following morning plaintiff considered obtaining a weapon to deal with Redd, but decided, instead, to report the incident to officials, after a conversation with some inmates whom he had known before incarceration. After the report, he was examined at University Hospital and placed on protective custody.

Edward Haynes testified that he called a guard at Wither's request, believing that Withers was sick, but received no response. He did not indicate to the guard that an assault was in progress. Upon passing the cell a second time, Haynes first realized that the problem was one of assault, and did not involve himself further because of Redd's threats to him. Both Haynes and Withers testified that they were on an upper tier, that guards were stationed at the bottom level, and that no guard was on their level when the incident occurred.

Jonathan Dickey testified that he was an inmate at MHC in November, 1973. On November 3, plaintiff asked for a weapon to use against the cellmate, who had raped him. Dickey advised plaintiff to report the incident to the authorities.

Documents in plaintiff's base file give the following information: on November 3 he reported a sexual assault and went to University Hospital for examination. The doctor there found an anal fissure and prescribed sitz baths and suppositories. Plaintiff was placed on protective custody. The adjustment team found Redd guilty of perverted practices, but not guilty of assault. The team's conclusion was based in part on Wither's statement that no violence was used in the assault.

Redd testified that the homosexual activity was consensual and defendants argued that Withers consented to the incident. There was evidence that an anal mucosal tear can result from consensual, as well as nonconsensual, homosexual acts. The University Hospital emergency room record stated that the injury was "consistent with but not conclusive of assault. . . ."

Defendants also introduced an adjustment team report, finding plaintiff guilty of engaging in a homosexual act with his cellmate, Stanley Dickerson, at the Maryland Penitentiary in 1975.¹ At trial, plaintiff and Dickerson both testified that this conclusion was erroneous, Withers denying that he had ever consented to homosexual acts.

The evidence also included a 1964 petition to the Baltimore City Juvenile Causes Division, alleging in part, that plaintiff had engaged in a perverted sex act when he was thirteen years old.

Determining whether a sexual act is consensual or assaultive is inevitably a matter of some difficulty, and is not susceptible of mathematical proof. The greater weight of the credible evidence indicates that plaintiff was sexually assaulted by Leon Redd.

Inmate Haynes, the only person who witnessed any part of the occurrence, testified that he saw assaultive behavior. Dickey testified that plaintiff wanted a knife to use against his cellmate the very morning after the incident, and the prompt report of the assault and the medical evidence must also be considered. Testimony by hearing officer Tilley established clearly that the MHC adjustment team did not have the medical evidence when it concluded that Redd had engaged only in a perverted practice, not an assault. While Tilley indicated that the medical report would not have been conclusive of assault, he indicated that it might have changed the decision.

Plaintiff's allegations that he never engaged in consensual activity are not altogether credible. Neither his testimony nor that of Stanley Dickerson rebutted the finding of a homosexual incident in 1975 at the Penitentiary. However, it is not that incident which is in issue here. Further, the fact that Withers may have engaged in a consensual act in 1975 does not significantly reduce the probability that he was raped two years earlier. Such a sequence of events is highly plausible.

There was considerable, undisputed testimony to the effect that an inmate, prone to sexual victimization, can minimize his harm, by agreeing to some homosexual activity. Other cases which have discussed the problem of homosexual rape record the phenomena of a vulnerable inmate choosing submission or the protection of a "man" to ameliorate his problem. E. g., Anderson v. Redman, 429 F.Supp. 1105, 1115 (D.Del. 1977); Chapman v. Rhodes, 434 F.Supp. 1007, 1017 (S.D.Ohio 1977).

Assuming arguendo that Withers told the adjustment team that Redd used no violence, the absence of such force is not inconsistent with assault. When fear weakens resistance, the aggressor may not actually need to exert the threatened force to secure compliance. But it is nonetheless an assault.

Fear of provoking further brutality or of advertising one's plight by vigorous protest is also highly believable under the norms of prison life. In Anderson v. Redman, supra, the Court stated:

By the time an inmate reaches his initial classification destination, be it maximum, medium, or minimum, it is difficult to discern nonconsensual homosexual activity, because the resistance of most nonconsensual victims has been broken by that time.

429 F.Supp. at 1117, for 31.

In the instant case, plaintiff testified that Redd threatened him with a razor and was much bigger physically. Under such circumstances, actual force might well have been unnecessary.

Several inmates testified convincingly that victims can expect no aid from their fellow inmates. In fact, if the incident becomes widely known, victims are permanently stigmatized and face future risks. While it is difficult to verify inmate testimony about the number and details of particular rapes, their testimony as to prisoners' reactions to assault presents no problem of credibility. On the contrary, it rings loud and true.

Defendants did not dispute these patterns of inmate behavior. Officials, including correctional officers, testified to the fears which militate against bringing homosexual assaults to light. Given the prevailing attitudes among inmates, a prisoner subjected to attack may well conclude that a vigorous resistance which advertises the event will increase both his immediate and long-range harm, with little hope of benefit. In short, evidence that force was not used, even if true, does not really contradict the evidence which is probative of assault.

Documents in plaintiff's base file make this a particularly logical conclusion in his case. During a prior stay at MHC, he wrote to the Warden, indicating that he could not effectively cope with sexual advances on his own. The Warden was sufficiently convinced of these difficulties to transfer him to MCI because of them and because of his age. Wither's testimony, and a reference in that letter, indicate his firmly held belief that he was sexually assaulted upon first entering the prison system as a teenager, and that this set the stage for future difficulties.

Records from Clifton T. Perkins Hospital show that plaintiff suffered a psychotic episode shortly after he entered the Baltimore City Jail, his first experience with incarceration. Although his mental condition was such that he cannot actually remember an assault, plaintiff's best efforts at reconstructing events, including memories of threats, lead him to believe that the episode was triggered by an assault.

The preponderance of the testimonial and documentary evidence presented at trial proves that Edward Withers was subjected to a sexual assault by his cellmate, Leon Redd, at the Maryland House of Correction on November 2, 1973. The defendants did not then, and do not now, employ written, uniform procedures to assure that safety is a main criterion in the initial placement of inmates, newly admitted or transferred from other institutions.

Withers and Redd were placed together without prior review of their prison records and known characteristics to assess their suitability as cellmates. By this omission, defendants unnecessarily increased the risks of harm, always present when two inmates are placed together in the same cell. The absence of proper procedure for making an initial cell...