by Keith Sanders

On December 16, 2021, a federal jury awarded Delaware prisoner DeShawn Drumgo $500,001 in damages after concluding a prison guard had inappropriately fondled him. This was the same prisoner who lost at least four earlier cases over conditions of confinement and alleged use of excessive force by guards.

Almost 14 years earlier, on December 21, 2007, Drumgo was sentenced to 23 years in the state Department of Corrections (DOC) for second-degree murder. But first, while still held in pre-trial detention in October 2007, he was allegedly beaten and injured by guards. That opened a legal saga, the first six years of which PLN has already reported, culminating with a decision by the U.S. Court of Appeals for the Third Circuit on May 24, 2013, vacating the district court’s grant of summary judgment to Defendants. [See: PLN, June 10, 2015, online.]

The case then returned to federal court for the District of Delaware, where Drumgo was appointed counsel with whom he quickly parted ways, proceeding pro se for about two months in 2014 until new counsel could be found. See: Drumgo v. Brown, 2014 U.S. Dist. LEXIS 47795 (D. Del.).

Meanwhile, during a routine pat-down at James T. Vaughn Correctional Center on May 19, 2014, guard Sgt. William Kuschel groped Drumgo “three different times until he reached my penis,” as the prisoner recalled in a new complaint he later filed. When he told the guard to stop, Kuschel doubled-down, “squeezing my penis,” Drumgo’s complaint added, until he “could feel the cracking and burning of my skin,” while other guards just watched and laughed.

Drumgo filed grievances, and in retaliation, his complaint continued, he was placed in another housing unit known as the “hell-hole” for its lack of reliable electric service, where he was given only half-portions of meals.

So in September 2014, Drumgo filed a new complaint in the district court under 42 U.S.C. § 1983, accusing Kuschel and his confederates of violating his Eighth Amendment guarantee of freedom from cruel and unusual punishment. At this point, the prisoner had five open cases in the district court:

(1) the 2008 suit alleging a beat-down by guards the year before;

(2) a 2012 suit also accusing guards of using excessive force against him and retaliating against him for filing his lawsuit by subjecting him to impermissible strip-searches and unconstitutional conditions of confinement;

(3) a September 2014 suit elaborating on those unconstitutional conditions of confinement with specific allegations regarding asbestos and leaking natural gas;

(4) a suit filed the same month elaborating guards’ retaliatory uses of excessive force; and

(5) the new suit, also filed in September 2014, accusing Kuschel of a sexual assault earlier that year.

The Case Against the
Groping Guard

Drumgo made three attempts to have counsel appointed in his sexual assault suit, all of which the district court denied before granting summary judgment to Defendants on July 22, 2016, agreeing with them that the prisoner had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e).

That decision was also appealed to the Third Circuit, which looked closely at the dispute between Defendants and Drumgo, who was proceeding pro se. He had a copy of his grievance over the sexual assault, but it was not stamped “received.” DOC had claimed to the district court that no such grievance was ever processed. But—surprise!—in their reply brief on appeal, prison officials admitted they had actually received the grievance and misfiled it. So the Court vacated the district court’s dismissal of Drumgo’s claim, but only against Kuschel, remanding the case on March 27, 2017. See: Drumgo v. Kuschel, 684 F. App’x 228 (3d Cir. 2017).

Back at the district court, Drumgo’s requests to appoint counsel continued to be denied. On March 26, 2019, not long after his December 2018 transfer to a state prison in Pennsylvania, the district court granted summary judgment to Kuschel. In saying Drumgo’s allegations did not rise to the level of a civil rights violation, the court pointed primarily to the leather glove Kuschel wore as he allegedly fondled Drumgo, deciding that this made the encounter insufficiently sexualized to be “repugnant to the conscience of mankind,” citing Ricks v. Shover, 891 F.3d 468 (3d Cir. 2018).

Once again Drumgo appealed. Taking up the case once more, the Third Circuit said the district court erred in deciding that the alleged groping did not meet the bar set by Ricks. In a non-precedential opinion issued on May 11, 2020, it vacated that decision and remanded the case. See: Drumgo v. Kuschel, 811 F. App’x 115 (3d Cir. 2020).

Back at the district court, Drumgo was appointed counsel from the Wilmington firm of McCarter & English LLP, including attroneys Daniel M. Silver, Alexandra M. Joyce and Shannon Dougherty Humiston. The case proceeded to a two-day trial that concluded on December 14, 2021, when the jury returned a verdict finding Kuschel had groped Drumgo. The prisoner was awarded $1 in nominal damages plus $500,000 in punitive damages.

But first, Drumgo apparently became unhappy with his appointed counsel and asked the district court to withdraw them from his case on October 29, 2021. The lawyers got wind of it and grudgingly moved to comply. But the district court was not having it so close to trial and denied the motion on November 22, 2021. Drumgo appealed that to the Third Circuit, too. But after the verdict in his favor, he didn’t pay his filing fee, so the appeal was terminated on February 11, 2022. See: Drumgo v. Kuschel, USCA (3d Cir.), Case No. 21-3350.

Meanwhile Kuschel filed for judgment as a matter of law, altered judgment and a new trial. Those motions remain pending before the district court. See: Drumgo v. Kuschel, USDC (D. Del.), Case No. 1:14-cv-01135.

Losses in Earlier Cases

And what of Drumgo’s other lawsuits?

The district court found new counsel in the oldest suit. But the prisoner was apparently unhappy and filed a motion to appoint new counsel in March 2015. Aided then by Joseph B. Cicero of Chipman Brown Cicero & Cole, LLP in Wilmington and Stephanie Habelow Dallaire of McCarter & English, the action proceeded to a three-day jury trial that concluded with a verdict in favor of the defendant guards on February 23, 2018. See: Drumgo v. Brown, USDC (D. Del.), Case No. 1:08-cv-00592.

Drumgo also filed an appeal to that verdict with the Third Circuit, but he didn’t pay the filing fee, so it was terminated on May 17, 2018. See: Drumgo v. Brown, USCA (3d Cir.), Case No. 1-08-cv-00592.

The second suit, in which Drumgo proceeded pro se, was dismissed by the district court, with the Third Circuit affirming on September 8, 2016, holding that Drumgo’s claims of retaliatory cell-searches failed because he “offered no evidence of a causal link between his lawsuits and the cell search.” The remaining allegations of excessive force and impermissible strip-searches were also dismissed because Drumgo failed to make those allegations in grievances, meaning he also failed to exhaust his administrative remedies as required under PLRA. See: Drumgo v. Radcliff, 661 F. App’x 758 (3d Cir. 2016).

On November 30, 2018, again proceeding pro se, Drumgo lost the third suit, accusing DOC of subjecting him to risks from asbestos and leaking gas. “Even assuming that Plaintiff met the prong to show objectively … sufficiently serious exposure to environmental factors, the record does not support a finding of deliberate indifference by Defendants,” the district court decided. See: Drumgo v. Dutton, 2018 U.S. Dist. LEXIS 205174 (D. Del.).

The district court by then had also dismissed the fourth suit, another in which Drumgo proceeded pro se, and the Third Circuit affirmed on October 12, 2017, saying that guards weren’t retaliating but “merely taunting him” and that Drumgo “failed to produce any evidence of a discernible injury” from their allegedly excessive use of force. See: Drumgo v. Little, 711 F. App’x 73 (3d Cir. 2017). 

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