(CN) – The 8th Circuit allowed a discrimination lawsuit against an Arkansas prison warden who allegedly fired a black female guard for accidentally pepper-spraying an inmate, but let a white male guard involved in the same incident slide.
In the 2005 incident, Rosemary J. Wimbley, while escorting a visiting nurse, warned the inmates in B-pod that she would spray them if they flashed the nurse, having heard earlier that a prisoner on the pod had been “exposing himself all day.”
Wimbley said she then “accidently discharged her pepper-sprayed.”
Guards began to evacuate the cell block because of the smell, but one prisoner objected, refusing to go until he could talk to a supervisor and take a shower.
“In response, Sergeant Steven Smith, a white male, sprayed the inmate twice with pepper spray, threw him on the floor, and placed a knee on his neck,” the ruling states.
Warden Mark Cashion fired Wimbley for “violating policy, threatening secured inmates, and following through on the threat,” according to the ruling.
But Smith got off, with Cashion concluding that he had acted within department policy.
Wimbley sued the prison and the warden, and the district court dismissed all of her claims except for charges of race and sex discrimination against Cashion.
The three-judge appellant panel agreed that Cashion wasn’t entitled to qualified immunity on those claims.
“Most favorably to Wimbley, Cashion’s acts after the incident are evidence of pretext,” Judge Duane Benton wrote for the St. Louis-based judicial panel.
“Cashion refused to believe Wimbley’s assertion that her discharge of pepper spray was accidental, and characterized her action as premeditated, despite statements from many prisoners to the contrary,” Benton added. “Cashion believed Smith’s reasons for using pepper spray despite statements from many prisoners that the inmate offered no resistance.”
The court added that Cashion fired Wimbley before asking internal affairs to investigate, according to policy, while he failed to discipline Smith but sent the incident to internal affairs.