The opinion of the court was delivered by: PAUL L. FRIEDMAN
Gregory M. Thomas was an inmate awaiting trial and then sentencing at the Maximum Security Facility in Lorton, Virginia, from February 1993 through November 1993. He brought this civil action in November 1993, alleging sexual abuse and harassment by defendant Sergeant Charles Ingram, a corrections officer at Lorton.
Plaintiff alleges that, in order to coerce Mr. Thomas into engaging in sexual relations with him, Sergeant Ingram forcibly touched or attempted to touch plaintiff's penis on at least two occasions, sexually harassed and intimidated plaintiff, and threatened to, and then did, spread rumors that Mr. Thomas is a homosexual and a "snitch." Plaintiff asserts that Sergeant Ingram told other inmates that plaintiff had testified against his co-defendants in connection with the 30 defendant criminal RICO drug conspiracy conviction for which Mr. Thomas then was awaiting sentencing. In addition, plaintiff claims he suffered emotional distress and feared for his safety when, as a direct result of Sergeant Ingram's statements, he was confronted and threatened by other inmates with bodily harm and further unwanted sexual contact.
Plaintiff claims that he reported Sergeant Ingram's conduct to Lorton medical personnel and prison guards on more than one occasion, but that no action was taken. He also claims that he filed an administrative complaint with David Roach, the Lorton administrator, but that he received no response and no action was taken on his complaint. Plaintiff alleges that the Department of Corrections was aware that Sergeant Ingram did engage and attempt to engage in sexual relations with other inmates and that the District of Columbia failed to take any action to prevent Sergeant Ingram's conduct or to protect plaintiff from Sergeant Ingram.
Mr. Thomas seeks damages from Sergeant Ingram in both his individual and official capacities for willful and malicious violation of plaintiff's Eighth Amendment rights. He seeks relief against the District of Columbia for the violation of his Eighth amendment rights, for deliberate indifference to the substantial risk of serious harm to him caused by Sergeant Ingram's conduct, for the maintenance of a custom or practice of failing to remedy Sergeant Ingram's conduct, and for failing to properly train and supervise Sergeant Ingram.
Defendants moved to dismiss plaintiff's complaint for failure to state a claim or, in the alternative, for summary judgment. Plaintiff opposed this motion and the Court heard oral argument. The Court denies defendants' motion.
A. Eighth Amendment Claims
The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment in violation of the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986). A prisoner claiming that prison officials used excessive physical force in violation of the Eighth Amendment must demonstrate that force was applied maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 6, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). Courts considering such claims must make an objective inquiry to determine whether the alleged wrongdoing is sufficiently harmful to establish a constitutional violation, and a subjective inquiry, regarding the prison official's state of mind. Id. The objective component of the excessive force inquiry "draws[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Hudson v. McMillan, 503 U.S. at 8 (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981)) (internal quotations and citation omitted).
Sexual assault, coercion and harassment of the sort alleged by plaintiff violate contemporary standards of decency and can cause severe physical and psychological harm. See Women Prisoners of the District of Columbia Dep't of Corrections v. D.C., 877 F. Supp. 634, slip op. at 68-73 (D.D.C. 1994); see Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993). Unsolicited sexual touching, harassment, and coercion are "simply not part of the penalty that criminal offenders pay for their offenses against society." Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977 (1994). "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Hudson v. McMillan, 503 U.S. at 9 (internal citations omitted). Where no legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the harassment itself may also be sufficient evidence of a malicious and sadistic state of mind. See Hudson v. McMillan, 503 U.S. at 6-7. That is the case here.
Despite defendants attempt to minimize the harm allegedly caused by Sergeant Ingram as mere touching and verbal harassment that are insufficient to establish a constitutional claim, plaintiff's allegations amount to much more. Mr. Thomas alleges that a corrections officer responsible for protecting him from harm affirmatively incited other inmates to assault him and, as a direct result of Sergeant Ingram's conduct, plaintiff was placed at grave risk of physical harm by other inmates. See Northington v. Jackson, 973 F.2d 1518, 1525 (10th Cir. 1992). In the prison context in which Mr. Thomas was required to live, one can think of few acts that could be more likely to lead to physical injury than spreading rumors of homosexuality and informing on one's co-defendants. In fact, Mr. Thomas alleges that he was physically confronted by and threatened by inmates who had been told by Sergeant Ingram that he was a "snitch." Pl.'s Am. Compl. P 14. Sergeant Ingram's alleged conduct, the physical harm with which Mr. Thomas was threatened, and the psychic injuries that are alleged to have resulted from such unnecessary, cruel and outrageous conduct, are sufficiently harmful to make out an Eighth Amendment excessive force claim. Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir. 1984); Jordan v. Gardner, 986 F.2d at 1525-26; Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir.), cert. denied, 498 U.S. 926, 112 L. Ed. 2d 262, 111 S. Ct. 309 (1990).
Plaintiff has also sufficiently stated a claim against the District of Columbia. The Eighth Amendment imposes a duty on prison officials to provide humane conditions of confinement and take "reasonable measures to guarantee the safety of inmates." Hudson v. Palmer, 468 U.S. 517, 526-27, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). This includes the duty "'to protect prisoners from violence at the hands of other prisoners.'" Farmer v. Brennan, 114 S. Ct. at 1976 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 102 L. Ed. 2d 45, 109 S. Ct. 68 (1988)). A prisoner may state a cognizable claim regarding the conditions of confinement if he can establish that he has been "incarcerated under conditions posing a substantial risk of serious harm" (an objective inquiry) and that a prison official acted with deliberate indifference (a subjective inquiry). Id. at 1977.