RICHMOND, Va. (CN) - Describing cruel treatment of a transgender inmate at an all-male West Virginia prison, a constitutional scholar urged the Fourth Circuit on Friday to make two prison officials stand trial.
“The District Court found the facts showed she needed to choose between eating or being sexually assaulted,” said Fein & Delvalle attorney Bruce Fein, speaking of his client, Paris Leibelson, who died this year from causes unrelated to the case. “This court cannot second-guess those facts.”
From November 2013 until her transfer four months later, Leibelson was incarcerated at the Federal Correctional Institution in Beckley, West Virginia. Leibelson identified as female, but, as the government’s brief notes, she was housed with men and even became engaged to her cellmate.
The government says it was after Leibelson and her fiance were separated that Leibelson began pushing for a special table in the dining hall.
Claiming that this separation made her seem available to the rest of the prison, Leibelson said fellow inmates told her she could no longer sit at their table unless she was in a sexual relationship with one of them.
In addition to claiming that prison official Doug Meyer ignored her request, Leibelson accused prison guard Christopher Cook of anally raped her with a finger during a prisoner inspection.
Meyer and Cook brought an appeal after U.S. District Court Judge Irene Berger denied them qualified immunity, but a lawyer for the men made little headway at the Fourth Circuit in his bid to cast doubt on Leibelson’s accusations.
“We’re not here to resolve facts,” said U.S. Circuit Judge Barbara Keenan.
Keenan emphasized that at this juncture, the court is obliged to review the allegations in the light most beneficial to Leibelson. A Reagan appointee, Keenan repeated this stance on facts multiple times Wednesday as Justice Department attorney Andrea Friedman tried repeatedly to discredit Liebelson’s testimony.
“There’s no constitutional violation if a guard touches an inmate’s anus,” Friedman argued.
“This was penetration,” Keenan responded.
“It was only two or three seconds,” Friedman responded.
“Why is this penetration not a clearly established constitutional violation?” the judge fired back. “Because it was digital and not a sex organ?”
“No, it was incidental,” the lawyer responded.
“Testimony is proof,” U.S. Circuit Judge Marvin Quattlebaum, a Trump appointee, chimed in. “You’re disregarding evidence, but that’s not our job.”
Trying to convincing the judges to disregard the inmate’s testimony made up the bulk of the government’s arguments.
On his firm’s website, attorney Fein describes a stint during the Nixon administration where he served as special assistant to the Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice.
“Among other accomplishments, Mr. Fein drafted an authoritative monograph on impeachable high crimes and misdemeanors as the House Judiciary Committee commenced an impeachment investigation of President Richard M. Nixon,” the website states.
In court filings, Fein’s client is identified by her birth name, Michael.
The panel did not indicate when it will rule on the case.
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