Court Advances Suit Over Teen's Rape in Jail

     ST. LOUIS (CN) - A Missouri jail administrator must face claims by a teenager who says he was raped by a sex offender while awaiting trial, an appeals court ruled.
     Claiming that he was raped in Macon County Jail after officials there failed to lock the cells one night, Cody Walton sued Sheriff Robert Dawson, jail administrator David Moore and others in Hannibal, Mo.,
     Nathan Flennory, a 35-year-old, 195-pound sex offender with a history of violence, entered Walton's cell in the predawn hours of Aug. 30, 2010, and threatened to kill him if he said anything, according to the complaint.
     Walton, who was 19 years old and 135 pounds at the time, said he was so scared that he wrote a note to a guard explaining what happened. The guard allegedly moved Walton to another cell block immediately.
     Walton claimed that jailer Ryszard Bilinski left the doors unlocked even though the staff knew of Flennory's violent propensities. Three months earlier, another inmate accused Flennory of entering his unlocked cell during the night and biting his penis.
     A federal judge denied Dawson and Moore qualified immunity, but scrutinized only Moore's alleged culpability in the assault. The court gave no particular reason for denying Dawson.
     A divided three-judge panel of the 8th Circuit affirmed the denial of immunity to Moore on Tuesday.
     "Despite prison policies requiring frequent cell checks with nighttime lockdowns, Moore and his jailers actually did next to nothing," Chief Judge William Jay Riley wrote for the majority. "At night, cells were rarely checked and never locked. Bilinski's brief walkthroughs before the assault occurred at most every two hours, leaving dangerous inmates not only access through unlocked doors but also unmonitored accessibility for long stretches of the night. The risk was both obvious and known to prison officials, given Flennory's prior nighttime assault and Bilinski's first-hand observations of Walton's fear. Under the totality of the circumstances, failing to do anything to mitigate this risk - whether by locking doors, increasing cell checks, installing cameras, segregating violent prisoners, or some other approach - potentially fell below minimum constitutional standards."
     Judge Raymond Gruender wrote in a partial dissent that Moore deserves immunity.
     "Walton admits that he never told Bilinski, Moore, or any jail staff that Flennory had threatened him in any manner or that he had any other reason to fear Flennory," Gruender wrote. "In fact, Walton consciously chose not to express fear regarding Flennory's presence or conduct. On the day before the attack, Flennory indicated in a note to Walton that he intended to fellate him. However, Walton decided not to tell anyone about the note, instead flushing it down his cell toilet because he 'didn't take it serious[ly] at the time.' We have found no substantial risk of serious harm in an analogous case where the plaintiff, like Walton, failed to express fear."
     Gruender joined in the portion of the lead opinion that gives Sheriff Dawson immunity.
     Dawson had many other responsibilities outside of the jail, and it was wrong to assume he knew as much about the jail's day-to-day operations as Moore, the court found.
     "Contrary to the District Court's wholesale pronouncement that both officials must have known the risk, the undisputed evidence supports Sheriff Dawson's claim of qualified immunity," Riley wrote. "Sheriff Dawson's response to the sexual assault (expressing justified outrage, reprimanding Bilinski, and disciplining Moore) gives every indication that he, unlike Moore, did not know inmates like Walton were in jeopardy."
     Judge Kermit Bye concurred in the lead opinion.