The Eighth Circuit Court of Appeals held that prison officials were not entitled to summary judgment on a female prisoner’s claim that she was raped during transport.

On December 15, 2005, Missouri prisoner Penny Whitson was being transported from the Stone County Jail to the Missouri Department of Corrections (DOC), in a van occupied by four male prisoners.

Each section of the transport van was caged separately, and the van was very dark inside. When Whitson attempted to sit in the first caged area, directly behind the guards, she was ordered to sit with prisoner Richard Leach in the second caged area which was accessible only from the rear of the vehicle.

Corporal Shawna Sorrick drove, accompanied by Officer Brown, who sat in the front passenger seat. The guards played loud music and the three prisoners in the first cage talked loudly.

During the trip, Leach slipped his hand restraints, grabbed Whitson’s arm, sat her on his lap, pinned her against the seat, pulled her pants down and raped her. Whitson tried to get away, but did not scream because she was embarrassed and humiliated.

At a restroom stop, Whitson told Sorrick that Leach raped her but Sorrick did not acknowledge her complaint. When she arrived at the DOC facility, Whitson again reported the rape. She was taken to a hospital, where tests confirmed the presence of “motile sperm” in her vagina.

Whitson sued Sorrick and Brown in federal court for failing to protect her from the assault. She also sued several supervisory officials for inadequate training and supervision. “The district court granted summary judgment in favor of the defendants, holding that because the attack was a complete surprise to even Whitson herself, the defendants necessarily lacked the required knowledge of a substantial risk of harm sufficient to support a claim under § 1983.” The court also held the defendants were entitled to qualified immunity.

The Eighth Circuit reversed, concluding that “there remains a question of fact on a determinative issue … and the district court applied the wrong legal standard.” It found that “the biggest quandary … is that both the defendants and the district court fixated on Whitson’s state of mind as to whether Leach would assault her that morning – a fact that is mostly irrelevant to our analysis.”

Defendants’ “attempt to capitalize on the district court’s untoward conclusion” that “because Whitson did not give them notice of a potential risk from Leach, they are not liable,” was rejected by the court because “this misstates the law.” Additionally, the court concluded that “defendants have simply not established an absence of a genuine issue of material fact, which, as the moving party, is their burden.”

As to the objective component of the Eighth Amendment claim, the court noted that the issue was not before the court because “the district court made no finding whatever on this first element.” Based upon the facts before the court, however, the court suggested that “it is virtually certain that the objective requirement is met,” but properly recognized that it could not “make this a fact-specific determination at this time, but the district court will be able to do so (and should do so) upon remand.”

Turning to the subjective element, the court observed that defendants offered no evidence to refute Whitson’s claim that the rape was foreseeable. Rather, defendants’ affidavits were “conspicuously limited to statements regarding what Whitson did or did not say or know the morning of the alleged assault.” Three affidavits were “of … individuals who were not present during the transport,” and “there is no affidavit in the record from Officer Brown.”

“The defendants place themselves firmly within the myopic view that what Whitson knew the morning of the attack is crucial and they refuse to budge from this limited scope,” noted the court. “This is fatal to their case, at least at this stage of the proceedings. What Whitson knew about Leach, while not wholly irrelevant, is nearly so, as it is only one piece of circumstantial evidence relevant in the quest to determine whether the defendants had subjective knowledge of the overall risk.” The court found that “there is a myriad of evidence that could be adduced in this case.”

Without submitting proof of Leach’s criminal history, defendants claimed there was no evidence suggesting that Leach’s “criminal history placed him in a category of persons who had a greater propensity to commit sexual assaults against women.” The court rejected this argument, however, finding that “it is circular and disingenuous for the defendants to fail to put in the summary judgment record facts that are uniquely in their possession and then attempt to persuade the court that there is no genuine issue of material fact on the subject. If Leach’s criminal history was such that it would have had no effect on the officers’ decision to place Leach in the remote, locked compartment with Whitson during the transfer … then the defendants could … and should have placed that evidence in the record.”

The court determined that “the evidence at present does not conclusively establish that the prison officials lacked the requisite mental state sufficient to satisfy summary judgment,” and “because the disposition of this case was fundamentally flawed, remand is the proper course.” Given this ruling, the court also reversed the qualified immunity order because “it was premised on the court’s ruling that there was no constitutional violation.” Finally, the court reversed the failure to train/supervisory liability claim dismissal because the court did not explain the basis for its ruling and “it is impossible … to evaluate the district court’s decision without any discussion at all on the subject.” Therefore, it must “explain its underlying rationale” on remand. See: Whitson v. Stone County Jail, 602 F.3d 920 (8th Cir. 2010).

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