United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
a civil rights case filed by Plaintiff Simon David
Hendrickson under the provisions of 42 U.S.C. § 1983.
Plaintiff contends that Defendants violated his
constitutional rights by failing to protect him from attack
by a fellow inmate, James Griffin, and then failing to follow
up and investigate his sexual assault claim. Plaintiff also
brings a supplemental state law claim under the Arkansas
Civil Rights Act. Ark. Code Ann. § 16-123-101.
have filed a Motion for Summary Judgment (Doc. 31), and
Plaintiff has filed a Response (Doc. 35). The Motion is now
ready for decision.
all relevant time periods, Plaintiff was a pretrial detainee
in the Washington County Detention Center ("WCDC").
Plaintiff was first booked in the WCDC on September 18, 2014.
(Doc. 33-2 at 1 -4). At the time, he was awaiting trial on
rape (forcible fondling) and second-degree sexual assault
charges. Id. at 4. When he was booked, he reported
having Post Traumatic Stress Disorder, asthma, a cold, kidney
stones, blood in his urine, and pain in his back and legs.
(Doc. 33-3 at 4). He reported being on various medications at
that time, including Seroquel and Fluoxetine. (Doc. 33-3 at 4).
housing assignments at the WCDC are made by booking officers.
(Doc. 33-1 at 2). Thereafter, detention officers make the
assignments based on the safety and security needs of the
detainee and the facility, considering available housing
options. Id. WCDC policy requires that inmates
charged with sexual offenses be housed separately from other
inmates, for the health and safety of all detainees at the
jail. Id. In September and October of 2014, when
Plaintiff entered WCDC custody, K-block was the designated
area for housing sexual offenders. Id. In December
of 2014, sexual offender inmates were moved to Q-block.
Id. Plaintiff was placed in K-block just after he
was booked. (Doc. 33-1 at 42; Doc. 33-6 at 1).
detainees enter the WCDC, they are advised they will be
disciplined if they engage in sexual activity in the jail.
(Doc. 33-1 at 3). Various qualifying offenses that merit
discipline are set forth in the WCDC Policy Manual (Doc. 33-8
at 12-28), including rape or other forced sexual acts, making
sexual threats, engaging in sexual activity with another
consenting person, making sexual proposals, and indecent
exposure. According to Defendants, by way of the kiosk,
detainees are informed that there is a "zero tolerance
policy" for sexual offenses within the facility. (Doc.
33-1 at 4; Doc. 33-10 at 1). According to Defendants, the
kiosk contains a flyer that describes the ways in which a
detainee may report sexual offenses. Such offenses are
commonly referred to in the jail as "PREA"
offenses. PREA stands for "Prison Rape Elimination Act,
" which is codified at 34 U.S.C. §30301,
October of 2014, Plaintiff was moved between administrative
segregation and various cell blocks a number of times. (Doc.
33-6 at 1-2). On October 22, 2014, he was returned to
K-block. Id. at 2. On October 23, 2014, Plaintiffs
alleged rapist, Griffin, was arrested and taken into custody
at the WCDC on charges that included aggravated assault and
sexual assault in the second degree. (Doc. 33-7 at 1). He was
assigned to K-block. Id. at 2; see also
Doc. 34 at 2.
December 6, 2014, Plaintiff was moved to Q-block, where sex
offenders were being housed at the WCDC at that time. (Doc.
33-6 at 3). On December 9, 2014, Griffin was moved from
administrative segregation to Q-block. (Doc. 33-7 at 4).
Then, on December 31, 2014, Plaintiff was moved to
administrative segregation, L-block. (Doc. 33-6 at 4).
Detainees in L-block were locked down 23 hours a day. (Doc.
33-11 at 44). On January 11 and 12, 2015, Plaintiff asked to
be placed in the open barracks, or else back in his original
pod, Q-block. (Doc. 33-5 at 4). Plaintiff was ultimately
returned back to Q-block. (Doc. 33-6 at 4).
about February 10, 2015,  Plaintiff testified that he was in a
cell in Q-block with three other inmates, including Griffin.
(Doc. 33-11 at 48-49 & 60). According to Plaintiff,
Griffin was actually assigned to a different cell but had
entered Plaintiff's cell during lights-out because he was
playing cards with one of Plaintiff's cellmates. (Doc.
33-11 at 51). Plaintiff testified that he complained to a
guard, whose name he could not remember, about Griffin being
in his cell, and the guard replied: "Shut up. You're
all in the same place. Get over it. I've got things to
do." Id. at 51-52.
then testified that he went to sleep that night on his
stomach with his pants up and a blanket on him. (Doc. 33-11
at 49 & 72). He woke up with Griffin on top of him
holding something sharp to his throat, no blanket on him, and
his pants down past his "butt." Id. at 48
& 71-72. Plaintiff testified that his pants were baggy
and that detainees did not have underwear. Id. at
71. According to Plaintiff, Griffin said, "You're
going to do what I tell you to do or I'm going to cut
your head off." Id. at 48-49. Plaintiff tried
to fight off Griffin and started to yell and scream.
Id. at 49. As soon as Griffin "entered him,
" Plaintiff was able to throw Griffin off him to the
floor. Id. at 50.
testified that Griffin got on the rail of the bottom bunk and
"grab[bed] me again, grab[bed] me by my genitalia and
the back of my pants . .. and started pulling me off and
[said] 'we're going to handle this down here where I
can move around.'" Id. at 52.
jumped down, and at that time Plaintiff's cellmate yelled
at Griffin "to get away from here." Id.
Plaintiff started beating on the door to get the guard's
attention. Id. According to Plaintiff, a guard he
could not identify by name came to the door and said, "I
ain't in here for no lovers quarrel, " scanned the
tag on the door, and then left. Id.
testified that a different guard, believed to be named
Bonito, unlocked the cell for breakfast. Id. at 53.
Plaintiff threw Griffin's belongings out of the cell and
then told the guard what had happened. Plaintiff was told to
submit a kiosk request about the incident. Id.
Plaintiff testified that the guard jokingly asked him if he
had enjoyed it. Id. Later, when Plaintiff tried to
submit a incident report through the kisok, Griffin stood in
front of the kiosk blocking access to it. Id.
Griffin told Plaintiff that he already knew Plaintiff was a
snitch because he had told the guard what had happened.
Id. at 54. Plaintiff testified that at around
lunchtime, he asked an officer and the jail nurse if he could
talk to someone about the incident because Griffin would not
allow him to access the kiosk. Id. Nothing happened,
so Plaintiff asked another officer for help, and that officer
told Plaintiff he would let someone know that Plaintiff could
not access the computer. Id. Later that same day,
Plaintiff's cellmate, whom Plaintiff believed was a
witness to the sexual assault, was transferred to Benton
County. Id. Plaintiff testified that the transfer
happened on a Monday. Id.
further testified that he obtained access to the kiosk either
the night after the assault or the following night.
Id. He did not include much detail in his kiosk
entry because other inmates were sitting nearby. Id.
Plaintiff estimated that he was seen by a detective within a
day or two of his kiosk complaint. Id. He also asked
to see the doctor after the assault happened. Id. at
47, 84. He testified that he was bleeding every time he went
to the bathroom and had sores on his "bottom."
Id. at 48, 84. Plaintiff testified that he could not
recall if he put his request for medical treatment on the
kiosk or simply talked to the nurse about his concerns when
she brought him his regular medication. Id. at 85.
He testified, however, that he told the nurse several times
that he was bleeding when he passed stool. Id. at
84-85. Kiosk transcripts submitted to the Court by Defendants
indicate that Plaintiff reported to nursing staff, via a
kiosk request, that he was suffering from hemorrhoids in late
January. See Doc. 33-5, p. 5. On February 9, 2015,
around the time of the alleged sexual assault, he was seen by
the nurse for complaints about indigestion and was placed on
a "bland/veggie" diet for 30 days. (Doc. 33-3 at
9). The nurse's February 9 report contained no mention of
bloody stool or Plaintiff's report of a sexual assault,
and instead noted only Plaintiff's nausea and yellow
February 10, 2015, Plaintiff submitted an inmate request that
stated: "I was proprazitioned [sic] for gay sex by
Griffin at 2am Tuesday Morning. My witness is Jim Cain my
cellmate and I am willing to take a polygraph to show our
truth on this matter, or I can also let my lawyer know also
when he arrives this week." (Doc. 33-5 at 6). During his
deposition, Plaintiff could not recall using this language.
(Doc. 33-11 at 64). He believed instead that he had reported
being sexually assaulted-not propositioned-by James Griffin.
Id. During the deposition, however, when
Defendants' counsel questioned Plaintiff as to why he
never mentioned in the kiosk request that he had actually
been raped, Plaintiff responded that he had been waiting to
tell his attorney the whole story.
February 10, Plaintiff was moved to booking and then returned
to Q-block. That same day, Griffin was moved to
administrative segregation, L-block. Deputy Jonathan Brown
filed an incident report about the Plaintiff's alleged
sexual assault on February 10. (Doc. 33-4 at 2). Deputy Brown
indicated that he was notified by Plaintiff that Griffin had
propositioned him for gay sex at 2 a.m. one morning.
Id. at 3. According to Deputy Brown's report,
Plaintiff told him that Griffin had woken him up by grabbing
his penis and telling him that he wanted to have sex with
Plaintiff. Id. The report continued as follows:
Hendrickson told me that he told Griffin to leave him alone
and to not touch him. He also told him that he wasn't
that way, meaning homosexual. Hendrickson said that Griffin
kept trying to get him to have sex with him. Hendrickson also
said that he, (Griffin, ) wanted to give him oral sex.
Hendrickson said that he felt very uncomfortable. Hendrickson
said that after this, Griffin went to sleep and no other
contact or propositions were made. Hendrickson also said that
a Detainee Cain (54yoa, ) was also in the cell during this
time and was a witness to everything that was taken place.
Id. Deputy Brown forwarded the report to the
appropriate officers. Id. Griffin was then moved to
booking so that he could be separated from Plaintiff in a
different housing unit. Id.
complaint was forwarded to Detective John Schuster, an
investigator for the Washington County Sheriff's Office.
Detective Schuster began working at the Sheriff's Office
in this capacity in either 2012 or 2013. (Doc. 36-3 at
12-13). He believes that during his time as an investigator
for Washington County, he investigated approximately six
allegations of sexual assault at the WCDC. Id. He
testified that out of the six allegations, none were
ultimately substantiated. Id. at 14. Detective
Schuster further testified that in each of the six cases, he
interviewed the victim first, followed by the suspect, and
then the witnesses. Id. at 17, 20-21. In every case
except Plaintiff's, the victim immediately agreed to
speak with Detective Schuster; however, for some reason,
Plaintiff declined to speak to Detective Schuster without his
attorney present. Id. at 14.
February 11, 2015, Detective Schuster submitted a
supplemental report to Deputy Brown's report. (Doc. 33-4
at 4- 7). According to the supplemental report, Detective
Schuster began his interview with Plaintiff by reading him a
statement-of-rights form. When Schuster arrived at the
question on the form that asked whether Plaintiff wished to
have his attorney present, Plaintiff responded that he did,
in fact, wish to speak to his public defender, Robert Scott
Parks, before he answered any further questions. Id.
at 5; Doc. 33-13 at 14. Detective Schuster reminded Plaintiff
that he was a victim and not a suspect. (Doc. 33-4 at 4-7).
However, Plaintiff indicated that he had been told by his
public defender never to speak with police or give an
interview without talking to his attorney first. Id.; see
also Doc. 33-11 at 55.
Schuster testified in his deposition that he usually tells
victims that the investigation is intended "to prove
[the victim] correct, " but that charges could later be
brought against the victim if the victim lied or gave a false
report of a sexual assault. (Doc. 36-3 at 48). In Detective
Schuster's experience, inmates make false reports of
sexual assaults for various reasons, including wanting to be
moved to another cell block, or lying due to mental health
issues. Id. at 48-49. In Plaintiff's case, he
indicated to Schuster that he was sexually assaulted on
Monday, February 9, at around 2 a.m., and he gave Schuster
the names of witnesses. (Doc. 33-4 at 7). Detective Schuster
ended the interview with Plaintiff by advising him that he
would attempt to contact his public defender, Parks.
Id. at 5. Schuster did not attempt to collect
physical evidence from Plaintiff, nordd he attempt to speak
to Griffin, the accused rapist. Schuster testified that
without knowing Plaintiff's exact accusations, he could
not "confront [Griffin] without knowing what I'm
trying to find out." (Doc. 36-3 at 29).
same afternoon as the initial interview with Plaintiff,
Detective Schuster sent an e-mail to Plaintiff's
attorney, Parks. In the email, Schuster told Parks that he
had attempted to interview Plaintiff about an uninvited
sexual assault, but that Plaintiff refused to speak to him
without first consulting his attorney. (Doc. 33-4 at 6; Doc.
33-13 at 2). Parks replied in an email that he planned to see
Plaintiff the following morning after court and asked if
Plaintiff was "ok." (Doc. 33-4 at 6). Detective
Schuster again ...