Monday, February 07, 2000
Judge: Inmate wasn't protected
Ohio appeals decision to try prison workers
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Ohio has appealed a federal judge's decision to let a jury decide whether a murderous attack violated a prisoner's rights at Warren Correctional Institution.
Assistant Attorney General Todd Marti said Thursday that the case should have been dismissed because prison employees are protected by the immunity generally available to public officials for on-the-job decisions.
U.S. District Judge Sandra S. Beckwith rejected that argument Jan. 25 and said two guards and a civilian housing manager must go to trial.
She said there was enough evidence for jurors to conclude that there was deliberate indifference to the prisoner's Eighth Amendment right to be free of cruel and unusual punishment.
That put the Feb. 21 trial on hold, and it could be a year before the U.S. Court of Appeals for the 6th Circuit decides whether any of the defendants must go before a jury.
The suit was brought by a transsexual former inmate identified as Jane Doe because he was undergoing hormone therapy to assume some female physical characteristics.
Doe was in protective custody to prevent assaults by inmates provoked by his feminine appearance.
Hiawatha Frezzell was a maximum security prisoner with a history of violence in prison. Unit housing manager Richard Kemp assigned Mr. Frezzell to the same protective unit as Doe rather than a more restrictive area.
On July 12, 1996, Mr. Frezzell entered Doe's cell and beat him. Among those who knew about this assault and related death threats was Corrections Officer Gayle Bowles.
Her boss, shift commander Ronald Stratton, did not segregate Mr. Frezzell after the initial assault.
Later that day, Officer Bowles allowed Mr. Frezzell to enter Doe's cell again and he beat Doe with a mop.
When the handle broke, Mr. Frezzell stabbed his victim with the shattered shaft.
Mr. Frezzell was charged with attempted murder but pleaded guilty to aggravated assault and received an additional sentence.
Doe — released in 1997 — moved out of state but sued in federal court in Cincinnati. Defendants included Officer Bowles, Capt. Stratton and Mr. Kemp. They denied any wrongdoing.
Federal courts are making it tougher for inmates to prove that prison hardships are the cruel and unusual punishment barred by the Eighth Amendment.
To survive the immunity defense raised by Mr. Marti, Doe and attorneys Alphonse A. Gerhardstein and Jennifer Branch had to overcome two legal barriers:
• Not every injury suffered by a prisoner violates the Eighth Amendment, Judge Beckwith said. “For a claim — like the one here — based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”
• Prison incompetence or negligence isn't sufficient to create a constitutional violation.
There must be evidence of “deliberate indifference” to a “known substantial risk of serious harm” to prisoner health or safety.
Turning to the defendants, Judge Beckwith said the evidence “clearly demonstrates” that Officer Bowles knew Mr. Frezzell had assaulted Doe be fore the attack with the mop handle.
There also was evidence that Officer Bowles knew Mr. Frezzell threatened to kill Doe and jurors could conclude that Officer Bowles “knew of a substantial risk that Mr. Frezzell would attack” Doe.
Judge Beckwith said Doe also might prove Mr. Kemp, who handled housing assignments in the protective unit, and Capt. Stratton knew about the “substantial risk” of another attack and didn't move Mr. Frezzell to a more secure cell.
That was the constitutionally fatal flaw in the prison protective system, Ms. Branch said.
“They housed the predators and the prey in the same unit.”
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