WALKER v. COUNTY OF GLOUCESTER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TERRY J. WALKER, : CIVIL ACTION

: NO. 15-7073

Plaintiff, :

:

v. :

:

COUNTY OF GLOUCESTER,, et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. January 25, 2022

Plaintiff Terry Walker alleges that when he was an inmate

at the Salem County Correctional Facility (“SCCF”), corrections

officer (and Defendant) Elbert Johnson sexually assaulted him.

Johnson claims that the encounter was consensual. Walker also

claims that he was subject to excessive force by other

corrections officers during his incarceration, unrelated to the

alleged sexual assault. In addition to Johnson, Walker has named

as Defendants the Salem County Board of Chosen Freeholders;

Raymond Skradzinski, the warden at SCCF (individually and in his

official capacity); and Captain Robert Reilly, a supervisor at

SCCF. Walker brings his action pursuant 42 U.S.C. § 1983 and

claims that his Fourth, Eighth and Fourteenth Amendment rights

were violated in that he was subjected to physical and sexual

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assaults, against which he was not protected by the SCCF.

Presently before the Court are the parties’ motions in limine.

I. FACTS AND PROCEDURAL HISTORY

Walker contends that Johnson sexually assaulted him on

April 1, 2015 in Walker’s cell. Johnson is seen on video

entering Plaintiff’s cell several times over several hours in

the early morning of April 1, 2015. There is no video inside the

cells and there appears to be no mechanism to alert staff when a

cell door is opened. Walker reported the events to staff later

that day and the New Jersey State Police conducted an

investigation. Johnson was charged with sexual assault and was

fired. Walker also claims that other corrections officers had

previously physically assaulted him on August 15, 18, and 19,

2014. Walker claims that the supervisory Defendants have

established well-settled practices which made the assaults

possible and foreseeable.

Walker filed this action on September 24, 2015. The case

was reassigned to this Court, sitting by designation, on June

23, 2020. On November 12, 2020, this Court denied the

Defendants’ motion for summary judgment on Monell liability

finding that “there are genuine disputes as to material facts

including whether the Defendants acted with deliberate

indifference to the risk of sexual assault in the facility which

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prevent summary judgment.” ECF No. 187 at 1 n.1. The Court

thereafter entered a final pretrial order.

Presently pending is Walker’s omnibus motion in limine

seeking: (a) to preclude evidence regarding the felony to which

he pleaded guilty; (b) to preclude evidence of his sexual

preference or identity; (c) to preclude evidence of his sexual

conduct with inmates or related disciplinary history while

incarcerated; (d) to determine that the Defendants are not

entitled to qualified immunity; and (e) to preclude the use of

consent as a defense to the alleged sexual assault. After an

April 7, 2021 oral argument, the Court asked Walker to file an

additional motion expanding his arguments against a corrections

officer’s use of consent as a defense to an inmate’s sexual

assault allegation, which he subsequently did. Also pending is

Johnson’s motion in limine to bar the testimony of Walker’s

damage expert, Dr. Michael Norver, which was also heard during

the April 7, 2021 oral argument.

II. DISCUSSION

A. Walker’s motion to preclude consent as a defense

Walker seeks to “preclude the Defendants from any use of

evidence relevant to an allegation that Plaintiff consented to

the sexual assault.” ECF 204 at 7. However, Plaintiff cites no

law that supports such a broad exclusion.

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In the past, a few courts have concluded that consent can

never be a defense to a section 1983 prison sexual assault case.

See Carrigan v. Davis, 70 F. Supp. 2d 448, 452-53 (D. Del. 1999)

(concluding “that an act of vaginal intercourse and/or fellatio

between a prison inmate and a prison guard, whether consensual

or not, is a per se violation of the Eighth Amendment”)

(footnote omitted). Other courts have found that evidence of

consent is highly probative of culpability. See Freitas v. Ault,

109 F.3d 1335, 1338-39 (8th Cir. 1997) (finding that there was

no evidence that a sexual relationship with a guard was non-

consensual except for the inmate’s unsubstantiated assertions,

and, thus, it could not have caused the inmate “pain,” which the

court concluded was necessary for an Eight Amendment violation).

However, more modern cases have reached a middle ground

that recognizes the severe power imbalance between a corrections

officer and an inmate, but also respects the autonomy of inmate.

This view was espoused by the Ninth Circuit in Wood v.

Beauclair, 692 F.3d 1041 (9th Cir. 2012). In Wood, the court was

cognizant that "[t]he power dynamics between prisoners and

guards make it difficult to discern consent from coercion," id.

at 1047, but was "concerned about the implications of removing

consent as a defense for Eighth Amendment claims." Id. at 1048.

The court ultimately concluded that:

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when a prisoner alleges sexual abuse by a prison guard,

we believe the prisoner is entitled to a presumption

that the conduct was not consensual. The state then may

rebut this presumption by showing that the conduct

involved no coercive factors. We need not attempt to

exhaustively describe every factor which could be fairly

characterized as coercive. Of course, explicit

assertions or manifestations of non-consent indicate

coercion, but so too may favors, privileges, or any type

of exchange for sex. Unless the state carries its burden,

the prisoner is deemed to have established the fact of

non-consent.

Id. at 1049.

Other Circuit Courts have followed Wood. In Hale v. Boyle

Cty., the Sixth Circuit held last year that:

We clarify that a rebuttable-presumption framework

regarding consent applies in cases involving sexual

conduct between prison officials and incarcerated

persons. Under this framework, an incarcerated person is

“entitled to a presumption that the conduct was not

consensual.” The defendant “may rebut this presumption

by showing that the conduct involved no coercive

factors.”

18 F.4th 845, 854 (6th Cir. 2021) (quoting Wood, 692 F.3d at

1049). Earlier in Graham v. Sheriff of Logan Cty., the Tenth

Circuit did not directly adopt the Ninth Circuit test but

concluded that:

Absent contrary guidance from the Supreme Court, we

think it proper to treat sexual abuse of prisoners as a

species of excessive-force claim, requiring at least

some form of coercion (not necessarily physical) by the

prisoner's custodians. We agree with the Ninth Circuit

that “[t]he power dynamics between prisoners and guards

make it difficult to discern consent from coercion.” But

there is no difficulty presented by the facts relied on

by Ms. Graham in this case. Even were we to adopt the

same presumption as the Ninth Circuit, the presumption

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against consent would be overcome by the overwhelming

evidence of consent.

741 F.3d 1118, 1126 (10th Cir. 2013) (quoting Wood, 692 F.3d at

1047).

The parties also appear to promote the Wood analysis.

First, Wood is the only case Walker cites in his motion. Second,

Walker cites favorably a recent law review article which

espouses the Ninth Circuit’s logic. Nika Arzoumanian, Consent

Behind Bars: Should It Be A Defense Against Inmates' Claims of

Sexual Assault?, 2019 U. Chi. Legal F. 415, 416 (2019) (“I will

argue in favor of the mixed approach taken by the Ninth Circuit:

prisoners are ‘entitled to a presumption that any relationship

with a correctional officer is not consensual,’ but the

defendant can ‘rebut this presumption by showing that the

relationship “involved no coercive factors”’ beyond the

background coercion that prison already imposes.”) (quoting M.

Jackson Jones, Power, Control, Cigarettes, and Gum: Whether an

Inmate's Consent to Engage in A Relationship with A Correctional

Officer Can Be A Defense to the Inmate's Allegation of A Civil

Rights Violation Under the Eighth Amendment, 19 Suffolk J. Trial

& App. Advoc. 275, 278 (2014)). Third, Johnson also cites Wood

approvingly, asserting that:

[Walker’s] reliance on Wood v. Beauclair, 692 F3d.

1041,(9th Cir. 2012) supports that Defendant may show

consent as a defense against an Eighth Amendment Claim.

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. . . It is for the jury to determine whether the

behavior is harmful enough to warrant an Eighth

Amendment Claim. If anything, Wood establishes that

there is a rebuttable presumption that still makes it a

jury question whether Plaintiff consented to the

encounter.

ECF No. 206 at 7.

The Court adopts the Ninth Circuit analysis as it takes

into consideration the significant power imbalance between

guards and inmates but recognizes that the inmates are adults

and not incompetents or children.1 The Court has found no recent

circuit court opinions that readily conflict with this view.

Thus, the Court will deny Walker’s motion and Defendants may

produce evidence at trial of non-coerciveness which rebuts the

presumption that the sexual contact was non-consensual or

coercive.

B. Walker’s omnibus motion in limine2

1. To preclude any evidence of Walker’s criminal

case including his guilty plea, charges, nature

of offense, or sentence.

Walker pleaded guilty to sexual assault of a minor which

resulted in his prison term. He contends that use of any

1 While Woods as well as the other cases discussed herein

involved heterosexual sexual encounters, rather than the

homosexual encounter in this case, the Court finds this fact

irrelevant.

2 In that the Court has discussed the use of consent as a

defense above, it will not do so again in connection with this

motion.

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evidence of the charges or his guilty plea (while otherwise

eligible for admission to impeach under F.R.E. 609) would be

highly prejudicial and would have no probative value in relation

to his section 1983 claims. Thus, Walker seeks preclusion of the

evidence under F.R.E. 403.

The Court agrees that the probative value of the details of

Walker’s crime is substantially outweighed by its prejudicial

nature under F.R.E. 403. Defendants may attempt to impeach

Walker under F.R.E. 609 by referencing that he pleaded guilty to

a felony, but may not disclose the factual basis for the felony.

The Court will, therefore, grant this motion in part and deny it

in part.

2. To preclude any evidence of Walker’s sexual

preference or identity.

Walker identifies as a bi-sexual male. He argues that any

reference to his sexual preference is irrelevant to the elements

of his claims or the alleged sexual assault by Johnson. Walker

asserts that there is no plausible reason to present evidence of

his sexual preference other than to create potential anti-gay

jury bias.

The Court concludes that, under F.R.E. 403, Walker’s sexual

orientation is strongly entwined with the facts of the case and

its probative value, which will greatly aid the jury in

understanding the allegations, is not substantially outweighed

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by any speculative threat of anti-gay prejudice. Thus, the Court

will deny this motion.

3. To preclude any evidence of Walker’s sexual

conduct and related disciplinary history while

incarcerated.

Prior to Johnson’s alleged sexual assault of Walker,

Defendants investigated a complaint by an inmate of

inappropriate sexual activity which included inmate statements

alleging that Walker had engaged in sexual conduct with other

inmates. Walker asserts that the statements are not relevant to

his claims and, thus, Defendants should be precluded from

introducing any testimony or reports that refer to his alleged

involvement in inappropriate sexual conduct with other inmates.

The Court concludes that the probative value of Walker’s

alleged sexual activity with other inmates is very low and

substantially outweighed by the prejudice it would create under

F.R.E. 403. Defendants to not contend otherwise. Thus, the Court

will grant this motion.

4. To determine as a matter of law that the

Defendants are not entitled to qualified

immunity.

Walker contends that sufficient undisputed facts exist to

allow the Court to rule that qualified immunity is not available

to the supervisory Defendants, Warden Skradinski or Captain

Reilly, as both are knowledgeable about the constitutional

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rights of inmates and cannot deny that they failed to enforce

policies that would have prevented the alleged assaults.

The Court disagrees that the record is so clear that the

supervisory defendants are, as a matter of law, not entitled to

qualified immunity. This determination will be made by the Court

once the facts are established at trial. Thus, the Court will

deny this motion without prejudice.

C. Johnson’s motion to exclude

Johnson seeks to preclude testimony from Walker’s damages

expert, Dr. Michael Norver. Dr. Norver opines in his reports

about Walker’s PTSD and substance abuse issues. Johnson claims

that Dr. Norver incorrectly attributes these issues solely to

the alleged sexual assault by Johnson. Johnson argues that Dr.

Norver ignores or was not provided background on a number of

additional relevant facts including Walker’s alleged significant

history with violence, crime, and sexual assault. Johnson also

claims that Dr. Norver’s opinion is an inadmissible net opinion

because it is speculative and he fails to state the principles

and methods that he used.

Walker contends that Johnson’s alleged grounds for

exclusion are just grounds for cross-examination. He asserts

that Dr. Norver’s reports are based upon well-recognized

psychological tests which he describes in the reports.

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The Court agrees with Walker that it is not necessary to

preclude Dr. Norver’s testimony and that Defendants may,

instead, explore any perceived deficiencies during cross-

examination.3 Thus, Johnson’s motion will be denied.

III. CONCLUSION

As described above, the Court will: (1) deny Walker’s

motion to preclude all evidence of consent to the alleged sexual

assault in that Defendants may use evidence to rebut the

presumption that the sexual activity was non-consensual or

coercive; (2) grant in part and deny in part Walker’s motion to

preclude evidence of his underlying felony guilty plea in that

Defendants may use the fact that Walker pleaded guilty to a

felony for impeachment purposes but may not disclose the factual

basis of the felony; (3) deny Walker’s motion to preclude

evidence of his sexual orientation or identity; (4) grant

Walker’s motion to preclude evidence of his disciplinary history

regarding alleged sexual activity with other inmates; (5) deny

Walker’s motion to determine that the Defendants are not

3 While Johnson did not specifically request a Daubert

hearing, having reviewed the submitted materials and having held

oral argument on the motion, the Court concludes that Dr.

Norver’s opinion meets the Daubert standard in that Dr. Norver

appears qualified and his opinion appears sufficiently reliable

and relevant such that it will assist the jury in reaching a

determination. See Calhoun v. Yamaha Motor Corp., U.S.A., 350

F.3d 316, 321 (3d Cir. 2003).

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entitled to qualify immunity; and (6) deny Johnson’s motion to

preclude the opinion of Dr. Norver.

An appropriate order follows.

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