Amicus Curiae Brief — Ronald Cox, Petitioner v. Benjie Nobles, Deputy Warden, et al.

Supreme Court briefFeb 16, 2022

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No. 21-6878

In The

Supreme Court of the United States

RONALD COX,

Petitioner,

DEPUTY WARDEN BENJIE NOBLES,

OFFICER CRUMP, WARDEN PERRY,

SERGEANT DAVIS,

WARDEN TED PHILBIN, UNIT MANAGER

HARRIS,

Respondents.

On Petition for Writ of Certiorari to the U. S.

Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE LGBT BAR

ASSOCIATION OF NEW YORK IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

WILLIAM J. ROLD, ESQ.

(COUNSEL OF RECORD)

98 BERGEN STREET

BROOKLYN, NY 11201

(718) 624-2890

williamjroldesq@verizon.net

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

PROFESSOR EMERITUS ARTHUR S. LEONARD

NEW YORK LAW SCHOOL

185 WEST BROADWAY

NEW YORK, NY 10013

ERIC LESH, EXECUTIVE DIRECTOR

BRETT M. FIGLEWSKI, LEGAL DIRECTOR

LGBT LAW ASSOCIATION OF GREATER NEW YORK

(LEGAL)

601 W. 26TH STREET, SUITE 325-20

NEW YORK, NY 10014

QUESTION PRESENTED

Amicus would reframe the question for review

as follows:

Is evidence of prison officials’ notice and

actions taken under the Prison Rape

Elimination Act relevant to their subjective

state of mind for deliberate indifference under

Farmer v. Brennan when they invoke the

affirmative defense of qualified immunity?

TABLE OF CONTENTS

QUESTION PRESENTED ................................... i

Table of Contents ................................................. ii

Table of Authorities ............................................ iv

INTEREST OF AMICUS CURIAE ................... 1

CONSTITUTION AND REGULATIONS ......... 3

FACTS RELEVANT TO AMICUS BRIEF ....... 5

APPLICATION OF PREA SCREENING

REGULATIONS TO FACTS .............................. 6

THE RELEVANCE OF THE

DISCOVERY STAY ............................................. 6

SUMMARY OF ARGUMENT ............................ 7

ARGUMENT ........................................................ 8

POINT I: ASSESSMENT OF NEW INMATES

UNDER PREA FOR RISK OF SEXUAL

ASSAULT

GERMANE

THE

SUBJECTIVE

COMPONENT

DELIBERATE INDIFFERENCE TO THEIR

SAFETY

UNDER

THE

EIGHTH

AMENDMENT .................................................... 9

The Horrible History of

Prison Rape ...................................... 9

This Court’s Adoption of a Cause

of Action in Farmer v. Brennan ... 11

The Prison Rape Elimination Act . 13

The PREA Commission Report .... 15

The PREA Regulations .................. 16

Lack of Judicial Enforcement of

PREA Regulations ......................... 17

POINT II: THE COURT SHOULD GUIDE THE

LOWER COURTS’ APPLICATION OF PREA IN

EIGHTH AMENDMENT PROTECTION FROM

HARM CLAIMS.................................................. 21

This Court’s Silence ....................... 21

The Discordant

Courts of Appeals ........................... 21

POINT III:

CONSIDERATION OF PREA

REGULATIONS ACCORDS WITH EVOLVING

STANDARDS OF DECENCY UNDER THE

EIGHTH AMENDMENT ................................. 28

POINT IV:

FARMER v. BRENNAN DOES

NOT REQUIRE A HEIGHTENED STANDARD

OF PLEADING .................................................. 30

CONCLUSION .................................................. 32

iii

TABLE OF AUTHORITIES

Cases:

Ahmed v. Dragovich, 29 F.3d 201

(3d Cir. 2002)....................................................... 20

Ard v. Rushing, 597 Fed. App’x 213 (5th Cir.

2014) .................................................................... 23

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...... 30, 31

Atkins v. Virginia, 536 U.S. 304 (2002) .......... 22

Bannon, Inc. v. United States, 779 F.3d 1376

(Fed. Cir. 2015) .................................................. 26

Battista v. Clarke, 645 F.3d 449

(1st Cir. 2011) ..................................................... 22

Bearchild v. Cobban, 947 F.3d 1130 (9th Cir.

2020) .................................................................... 25

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007) ............................................................30, 31

Bowens v. Wetzel, 674 Fed. App’x 133 (3d Cir.

2017) .................................................................... 23

Brown v. Collier, 929 F.3d 218

(5th Cir. 2019) ..................................................... 24

City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir.

2019) .................................................................... 14

City of Philadelphia v. Attorney General, 916

F.3d 276 (3d Cir. 2019) ..................................... 14

Cox v. Nobles, No. 21-6878, Court of Appeals for

the Eleventh Circuit, Slip Opinion, Appendix to

Petition ..........................................................26, 30

Cox v. Nobles, 19-cv-0031 (S.D. Ga. 2019) ... 6, 7

Crawford v. Cuomo, 796 F.3d 252

(2d Cir. 2015) ............................................... 23, 28

Crawford-El v. Britton, 523 U.S. 574 (1998) .. 31

Diamond v. Owens, 131 F.Supp.3d 1346 (M.D.

Ga. 2015) ............................................................. 27

Diamond v. Ward, 20-cv-0453 (M.D. Ga., Apr.

22, 2021) ............................................................. 27

Does 8-10 v. Snyder, 945 F.3d 951

(6th Cir. 2019) .......................................... 19, 24, 25

Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ....... 25

Estelle v. Gamble, 429 U.S. 97 (1976) ............ 28

Farmer v. Brennan, 825 U.S. 511

(1994) .............i, 11, 12, 13, 14, 21, 27, 28, 30, 32

Graham v. Florida,560 U.S. 48 (2009) ............ 28

Graham v. Sheriff of Logan Cty., 741 F.3d 1118

(10th Cir. 2013) ................................................... 29

Hale v. Boyle County, 18 F.4th 845

(6th Cir. 2021) ..................................................... 29

Hudson v. McMillan, 503 U.S. 1 (1992) .......... 28

Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) ... 31

Jackson v. Johnson, 475 F.3d 261

(5th Cir. 2007) ..................................................... 20

J.K.J v. Polk County, 960 F.3d 367

(7th Cir. 2020) ..................................................... 25

Jones v. Gusman, 296 F.R.D. 416

(E.D. La. 2013) ................................................... 24

Krieg v. Steele, 599 Fed. App’x 231 (5th Cir.

2013), cert. denied, 136 S.Ct. 238 (2015) ........ 23

Leatherman v. Tarrant County, 507 U.S. 163

(1993) .................................................................. 31

Lucas v. Chalk, 2019 U.S. App. LEXIS 24561 (6th

Cir., Aug. 19, 2019) ............................... 10, 24, 25

Monroe v. Jeffreys, 2021 U.S. Dist. LEXIS

21224, 2021 WL 391229

(S.D. Ill., Febr. 4, 2021) ..................................... 25

Naisha v. Metzer, 2021 WL 5632063 (3d Cir.,

Dec. 1, 2021) ....................................................... 19

Nerness v. Johnson, 401 F.3d 874

(8th Cir. 2005) ..................................................... 20

New York v. Department of Justice, 951 F.3d 84

(2d Cir. 2020) ..................................................... 14

Norton v. City of Marietta, Okla., 432 F.3d 1145

(10th Cir. 2005) ................................................... 20

Ortiz v. Jordan, 562 U.S. 180 (2011) ............... 32

Rivera v. Bonner, 952 F.3d 560

(5th Cir. 2017) ............................................... 23, 24

Robinson v. California, 370 U.S. 660 (1962) .. 10

Roper v. Simmons, 543 U.S. 551 (2005) .......... 28

Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir.

2020) .................................................................... 27

Shorter v. United States, 12 F.4th 366 (3d Cir.

2021) ................................................. 23, 26, 31, 32

Smith v. Ullman, 874 F.Supp. 979

(D. Neb. 1994) .................................................... 15

Swierkiewicz v. Sorema, 534 U.S. 506 (2002) 31

Talamantes v. Leyva, 575 F.3d 1021 (9th Cir.

2009) .................................................................... 20

Trop v. Dulles, 356 U.S. 86 (1958) ................... 28

Vazquez v. County of Kern, 949 F.3d 1153 (9th

Cir. 2020) ............................................................ 25

West v. Atkins, 487 U.S. 42 (1988) .................... 2

Wood v. Beauclair, 992 F.3d 1041

(9th Cir. 2012) ..................................................... 29

Woodford v. Ngo, 548 U.S. 81 (2006) .. 20, 21, 22

Zollicoffer v. Livingston, 169 F.Supp.3d 687

(S.D. Tex. 2016) ................................................. 24

Zollicoffer v. Livingston .14-cv-3037 (S.D. Tex.,

Febr. 26, 2018) ................................................... 24

Constitutional Provisions:

Eighth Amendment ................................ (passim)

vii

Federal Statutes, Regulations, and Rules:

Prison Rape Elimination Act, 34 U.S.C.

§§ 30301, et seq. ...................................... (passim)

§ 30302(3) ................................................. 13

§ 30302(6) ................................................. 13

§ 30302(7) ................................................. 13

§ 30302(13) ............................................... 14

§ 30306....................................................... 15

§ 30307(a) .................................................. 13

§ 30307(b) .................................................. 13

§ 30307(e) ................................................. 14

§ § 30309(9)(A) ......................................... 27

42 U.S.C. § 1983 ................................................... 2

28 C.F.R. Part 115 .................................. (passim)

§ 115.6(5) .................................................. 28

§ 115.6(6) .................................................. 28

§ 115.6(8) .................................................. 28

§ 115.13 ..................................................... 17

§ 115.15 ..................................................... 17

§ 115.21 ..................................................... 17

§ 115.22 ..................................................... 17

§ 115.31 ..................................................... 17

§ 115.41 ............................ 3, 4, 5, 6, 7, 9, 17

viii

§ 115.42(d)(7) ........................................... 16

§ 115.52(b)(1) ..................................... 19, 22

§ 115.32(d)(1) ........................................... 18

§ 115.61 ..................................................... 16

§ 115.67 ..................................................... 16

§ 115.71 ..................................................... 16

§ 115.72 ..................................................... 20

§ 115.87 ..................................................... 16

§ 115.93 ..................................................... 16

77 Fed. Reg. 37106 (June 20, 2012) .......... 16, 19

Supreme Court Rule 37.1 ................................... 1

Supreme Court Rule 37.6 ................................... 1

F.R.C.P. 8(a)(1) .................................................. 29

F.R.C.P. 12(b)(6) .................................................. 6

Other Statutes, Regulations, and Rules:

Ga. Code Ann. § 16-6-1 ...................................... 11

Books, Journals, and Other Authorities:

Arkles, “Prison Rape Elimination Act Litigation

and the Perpetuation of Sexual Harm,” 17

N.Y.U. J. LEGIS. & PUBL. POL. 801

(2014) ............................................................14, 18

Beck & Johnson, “Sexual Victimization

Reported by Former State Prisoners 2008,”

BUREAU OF JUSTICE STATISTICS 56

(2012) .................................................................. 11

Boston Globe, “Poll Finds Wide Concern About

Prison Rape…” (May 17, 1994) .......................... 9

Dumond, “Confronting America's Most Ignored

Crime Problem: The Prison Rape Elimination

Act of 2003,” 31 J. AM. ACAD. PSYCHIATRY & L.

354 (2003) ........................................................... 13

HUMAN RIGHTS WATCH, “No Escape: Male Rape

in U.S. Prisons” (2001) ...................................... 11

Jenness & Smyth, “The Passage and

Implementation of the Prison Rape Elimination

Act: Legal Endogeneity and the Uncertain Road

from Symbolic Law to Instrumental Effects,” 22

STAN. L. & POL’Y REV. 489 (2011) ...................... 8

Jenness, et al., “Violence in California

Correctional

Facilities:

Empirical

Examination of Sexual Assault,” U.C. IRVINE

CENTER FOR EVIDENCE-BASED CORRS. (2007) . 10

Katz, GAY AMERICAN HISTORY

(CROMWELL 1976) ............................................. 8, 9

Kupers, “Role of Misogyny and Homophobia in

Prison Sexual Abuse,” 18 U.C.L.A. WOMEN’S L.

J. 107 (2010) ....................................................... 18

Martin, “The Prison Rape Elimination Act:

Sword or Shield?” 56 TULSA L. REV.

83 2021) ...................... 8, 9, 10, 15, 17, 23, 29, 32

Meyer, “Incarceration Rates and Traits of

Sexual Minorities in the United States: National

Inmate Survey,” 107 AM. J. PUB. HEALTH 234

(2017) .................................................................. 11

Midnight Express (1978) .................................. 10

NATIONAL PREA RESOURCE CENTER, “’I Don’t

Believe You, So You Might as Well Get Used to

It’ – The Myth of Zero Tolerance in Texas

Prisons” (Nov. 20, 2018) .................................... 18

National Prison Rape Elimination Commission

Report (June 2009) ............................... 14, 15, 16

Nolan & Telford, “Indifferent No More: People of

Faith Mobilize to End Prison Rape,” 32 J. LEGIS.

129 (2006) ..................................................... 12, 13

Orange Is the New Black (2013-2019) ............ 10

Oz (1997-2003) ................................................... 10

Penland, “A Constitutional Paradox: Prisoner

Consent to Sexual Abuse in Prison under the

Eighth Amendment,” 33 MINNESOTA J. OF LAW &

INEQUALITY 507 (2015) ...................................... 29

Robertson, “A Clean Heart and an Empty Head:

The Supreme Court and Sexual Terrorism in

Prison,” 51 N.C. L. Rev. 433 (2003) ................. 15

Shawshank Redemption (1994) ....................... 10

Smith, “Promise Amid Peril: PREA’s Efforts to

Regulate an End to Prison Rape,” 57 AM. CRIM.

L. REV. 1599 (2020) ............................................ 19

SYLVIA RIVERA PROJECT, “It’s War in Here: A

Report on the Treatment of Transgender and

Intersex People in New York State Men’s”

(2007) .................................................................. 11

Turchik, “Myths about Male Rape:

A Literature Review” 13 PSYCHOLOGY OF

MEN & MASCULINITY 211 (2012) ................ 10, 13

xii

INTEREST OF AMICUS CURIAE

LGBT BAR ASSOCIATION OF NEW YORK

(LeGaL)1, 2

The LGBT Bar Association of New York

(LeGaL) is one of the nation’s oldest lesbian, gay,

bisexual, and transgender [“LBGT”] bar

associations and remains one of the largest and

most active legal organizations of its kind in the

country. LeGaL is dedicated to improving the

administration of the law, ensuring full equality

for LGBT people, and promoting the expertise

and advancement of LGBT professionals.

LeGaL is keenly interested in underserved

members of the LGBT community. We conduct

pro bono walk-in clinics in New York City and

Long Island, work with other bar associations,

provide CLE, and (through our Foundation)

publish a monthly newsletter, LGBT Law Notes,

which highlights legal developments affecting

LGBT people, with a dedicated section on

prisoners.

1 Statement per Supreme Court Rule 37.6: No counsel for

a party authored this brief, in whole or in part; and no

party or its counsel made a monetary contribution to fund

the preparation or submission of this brief.

Per Supreme Court Rule 37.1, notice was given of

intention to file this amicus brief on or before February 7,

2022; and counsel for both Petitioner and Respondent

have given written permission.

Counsel of Record, William J. Rold, is a

member of LeGaL and of the bar of this Court.

He has litigated about the civil rights of

prisoners for over four decades. He is the

associate editor of Law Notes for prisoner issues.

He represented the American Public Health

Association as amicus curiae before this Court in

West v. Atkins, 487 U.S. 42 (1988), which

established liability theory under 42 U.S.C.

§ 1983 for private medical contractors who work

in state prisons. He represented the American

Bar Association on the board of directors of the

National Commission on Correctional Health

Care, which sets standards for accreditation of

health systems in prisons and jails.

Co-counsel, Arthur S. Leonard, also a

member of the bar of this Court, is the Robert F.

Wagner Professor of Law and Employment Law

Emeritis at New York Law School and a founder

of LeGaL. He is the editor-in-chief of Law Notes.

Co-counsel, Eric Lesh and Brett M.

Figlewski, are the Executive Director and Legal

Director, respectively, of LeGaL.

They

coordinate LeGaL’s pro bono litigation.

CONSTITUTION AND REGULATIONS

Amicus would add the following to the citations

on pages 2-5 of the Petition:

United States Constitution, Amendment VIII:

Excessive bail shall not be required, not

excessive fines imposed, nor cruel and

unusual punishments inflicted.

28 C.F.R. § 115.41: Screening for risk of

victimization and abusiveness.

(a) All inmates shall be assessed during

an intake screening and upon transfer to

another facility for their risk of being

sexually abused by other inmates or

sexually

abusive

toward

other inmates….

using an objective screening instrument.

(d) The intake screening shall consider,

at a minimum, the following criteria to

assess inmates for risk of sexual

victimization:

(1) Whether the inmate has a mental,

physical, or developmental disability;

(2) The age of the inmate;

(3) The physical build of the inmate;…

(7) Whether the inmate is or is perceived

gay,

lesbian,

bisexual, transgender, intersex,

or gender nonconforming;

(8) Whether the inmate has previously

experienced sexual victimization;

(9) The inmate's

vulnerability;…

own

perception

(f) Within… 30 days from the inmate's

arrival,…

the facility will

reassess

the inmate's risk of victimization or

abusiveness based upon any additional,

relevant information received by

the facility since the intake screening.

(g) An inmate’s risk level shall be reassessed when warranted due to a

referral, request, incident of sexual

abuse, or receipt of additional

information that bears on the inmate’s

risk of sexual victimization.

FACTS RELEVANT TO AMICUS BRIEF

Ronald Cox is a transgender woman. Upon

arrival at Georgia Department of Corrections

[Ga.DOC]’s Autrey men’s prison, she was

receiving hormones and presented as a female,

with breasts and feminine appearance.

Without screening under Prison Rape

Elimination Act [“PREA”], she was housed in the

men’s prison with another inmate, who

threatened her with a weapon and sexually

assaulted her, for which she was hospitalized.

Ms. Cox grieved the failure to separate her.

Ms. Cox again sought and was denied PREA

protection when she was moved to Ga.DOC’s

Central State Prison for men.

Inmates

assaulted her and kicked and punched her on

the ground. Ms. Cox also grieved these events.

Four months later, at Ga.DOC’s Augusta

men’s prison, Ms Cox again sought PREA

protection. It was denied, and she was assaulted

twice, once with a shank. Officials moved her to

a different cell in the same dorm. She was

attacked again by the same inmate, who

remained in the dorm.

The last attack (a stabbing) caused critical

injuries and a six-day hospitalization. After

release, Ga.DOC housed Ms. Cox in a PREA

dorm at Augusta.

APPLICATION OF PREA SCREENING

REGULATIONS TO FACTS

28 C.F.R. § 115.41 requires that prisoners be

assessed

for

vulnerability

for

sexual

victimization using an “objective screening

instrument,” as follows: (1) on arrival; (2) on

transfer; (3) within thirty days after arrival; (4)

after an incident of sexual abuse; and (5) upon

request.

Here, there were three arrivals, two

transfers, two 30+ days lapses of time, three

sexual abuse incidents, and one hospitalization

prior to the last one – each of which required, but

did not produce, a PREA assessment of risks to

this transgender inmate. Ms. Cox also filed

grievances and made her own requests.

These eleven events should have selftriggered Ga.DOC to assess this inmate under

28 C.F.R. § 115.41. PREA regulations require

written documentation of assessments.

THE RELEVANCE OF THE DISCOVERY

STAY

Although the Eleventh Circuit fails to

mention it, the District Court stayed discovery

after defendants moved for dismissal on

qualified immunity under F.R.C.P. 12(b)(6). 3

Cox v. Nobles, 19-cv-0031 (S.D. Ga., Sept. 8, 2019),

Docket No. 24.

Ms. Cox had already answered the motion to

dismiss, relying on reasonable inferences from

the facts and PREA, specifically invoking 28

C.F.R. § 115.41. 4

By requiring Ms. Cox to plead specific

details about Ga.DOC’s PREA responses –

information asymmetrically in Ga.DOC’s control

-- the Court of Appeals imposed an improper

heightened pleading requirement in this

qualified immunity case.

SUMMARY OF ARGUMENT

The Court has never addressed the role of

PREA in the Eighth Amendment claims of

prisoners who are the victims of rape. Despite

PREA’s passage, this plague on the criminal

justice system remains.

The lower federal courts are either divided

or silent as to how to apply PREA to prisoner

claims. Yet Congress plainly intended to provide

resources and set standards for prevention and

investigation of sexual assault in prisons and

jails.

The Court should include consideration of

PREA among the evolving standards of decency

that inform Eighth Amendment analysis. It can

begin by acknowledging what amicus submits is

the key PREA provision whose violation leads to

Id. (Aug. 29, 2019), Docket No. 22.

most of the constitutional violations that follow:

failing to screen potential aggressors and

victims and keeping them apart.

The ruling below conflicts with rulings of

Courts of Appeals. It imposes a “heightened

pleading” requirement when defendants raise

qualified immunity, contrary to this Court’s

precedents for lower-level defendants in civil

rights cases

ARGUMENT

“Prison rape may be the single largest shame of

the American criminal justice system,

and that’s saying a lot.’” 5

One of the first historical accounts of prison

rape in America, Katz’ groundbreaking treatise,

GAY AMERICAN HISTORY,6 recounts an 1826

interview with an inmate victim of the “Sin of

Sodom” during a minister’s trek through prisons

from Massachusetts to Georgia:

Was the crime committed on you? Yes,

Sir! By whom? Pat, an Irishman. Why

did you submit? He choked me. He was

stronger than I! Why did you not

Martin, “The Prison Rape Elimination Act: Sword or

Shield?” 56 TULSA L. REV. 283, 283 n.1 (2021), quoting

Jenness & Smyth, “The Passage and Implementation of

the Prison Rape Elimination Act: Legal Endogeneity and

the Uncertain Road from Symbolic Law to Instrumental

Effects,” 22 STAN. L. & POL’Y REV. 489, 500 (2011).

6 (Cromwell 1976) 27-8.

complain? I did in the room! But they

said if I told of it they would punish me!

Who said so? They all said I must not tell

anything out of the room! Did Pat effect

his object? Yes, Sir?

Sadly, nearly two hundred years later, this could

be written today.

In the experience of amicus, corrections

officials’ failure to comply with the law -- by

screening potential prison victims and

aggressors and separating them – is at the core

of most sexual abuse in prison – and it was the

main fault here. That is why we focus on the

persistent failure to implement 28 C.F.R.

§ 115.41 and what weight it should have in

Eighth Amendment adjudication.

POINT I: ASSESSMENT OF NEW INMATES

UNDER PREA FOR RISK OF SEXUAL

ASSAULT

GERMANE

THE

SUBJECTIVE

COMPONENT

DELIBERATE INDIFFERENCE TO THEIR

SAFETY

UNDER

THE

EIGHTH

AMENDMENT.

A. The Horrible History of Prison Rape.

Commentators have been denouncing

indifference toward prison rape for nearly a

century. 7

But this Court did not apply the

7 Martin,

supra n.5, 287.

Eighth Amendment broadly to the states until

1962.8 Over the next decades, stereotypes about

sexual assault in prison flourished. The Boston

Globe found in 1994 that fifty percent of those

surveyed believed that “society accepts prison

rape as part of the price criminals pay for their

wrongdoing.”9 Sexual assault became viewed

as “common and inevitable”10 and “part of prison

life.” 11 It was (and continues to be) exploited in

movies and television.12

A myth developed that only gay men are

perpetrators or victims of prison rapes of other

men. 13 This fostered a widespread view among

Robinson v. California, 370 U.S. 660, 664 (1962).

9 Turchik, “Myths about Male Rape” A Literature Review”

13 PSYCHOLOGY OF MEN & MASCULINITY 211 (2012), citing

Boston Globe, “Poll Finds Wide Concern About Prison

Rape…” (May 17, 1994) at 22.

10 Turchik,

11 Martin,

id. at 216-17.

supra n.5, 284.

Midnight Express (1978); Shawshank Redemption

(1994); Oz (1997-2003); and Orange Is the New Black

(2013-2019).

13 Turchik, supra n.9, 212.

See Lucas v. Chalk, 2019 U.S.

App. LEXIS 24561 (6th Cir., Aug. 19, 2019) (remanding

dismissal of claim against bisexual prison rape victim’s

psychologist, who denied treatment because prisoner

probably “liked” being raped).

corrections officers that “prisoners who had

consensual sex with men deserve to be raped.”14

The nation’s prisons and jails have

disproportionate numbers of incarcerated LGBT

people – nearly three times the number of those

self-identified in the population at large.15

Their rate of sexual assault is more than eight

times the victimization of heterosexual

prisoners.16 Transgender inmates are thirteen

times more likely to be victims than cisgender

inmates.17

B. This Court’s Adoption of a Cause of Action in

Farmer v. Brennan.

Against this landscape the Court held in

Farmer v. Brennan, 825 U.S. 511 (1994), that

“No Escape: Male Rape in U.S. Prisons,” HUMAN RIGHTS

WATCH (2001). This combination of sexism and

homophobia persists today. In Georgia, despite efforts to

legislate gender neutrality, only a woman can be a victim

of rape. Ga. Code Ann. § 16-6-1.

15 Meyer, “Incarceration Rates and Traits of Sexual

Minorities in the United States: National Inmate Survey,”

107 AM. J. PUB. HEALTH 234, 238 (2017).

Beck & Johnson, “Sexual Victimization Reported by

Former State Prisoners 2008,” BUREAU OF JUSTICE

STATISTICS 56 (2012).

Jenness, et al., “Violence in California Correctional

Facilities: An Empirical Examination of Sexual Assault,”

U.C. IRVINE CENTER FOR EVIDENCE-BASED CORRS. (2007);

see also, “It’s War in Here: A Report on the Treatment of

Transgender and Intersex People in New York State

Men’s Prisons,” SYLVIA RIVERA PROJECT (2007).

the Eighth Amendment protects prisoners

against deliberate indifference to their safety

from attacks by other inmates. If the risk were

serious, if defendants knew of it, and if they

failed to take reasonable steps to abate it,

liability would attach. Importantly, the Court

said that “knowledge” by defendants could be

inferred by a jury (as with other reasonable

inferences in civil cases), if the risks were

“obvious.”

Farmer, 825 U.S. at passim

(“obvious” mentioned 22 times in decision).

The Court placed the primary responsibility

for responding on prison officials, finding it not

relevant at the pleading stage that Farmer,

herself a transgender prisoner, did not object to

her placement in general population at the

maximum-security federal penitentiary in Terre

Haute. 511 U.S. at 830. It is likewise not

dispositive that the victim plaintiff is unable to

identify her specific future assailant: a

defendant cannot “escape liability for deliberate

indifference by showing that, while he was

aware of an obvious, substantial risk to inmate

safety, he did not know that the complainant

was especially likely to be assaulted by the

specific prisoner who eventually committed the

assault.” Farmer, 511 U.S. at 843, 848.

Farmer was not enough. Prisoners had a

constitutional cause of action, but there was no

structure.

There was a call for national

standards for prevention and tracking of sexual

violence in prisons.18

C. The Prison Rape Elimination Act.

In 2003, Congress enacted the Prison Rape

Elimination Act, now codified at 34 U.S.C.

§§ 30301, et seq. [“PREA”’]. It was a bipartisan,

multi-advocate-supported effort, and it passed

unanimously within a few months. 19

Congress established a Commission to study

prison rape and to prepare a report of “findings

and recommendations.” It required the Attorney

General to promulgate national standards to

reduce sexual assault, preserve evidence, and

treat victims. 34 U.S.C. §§ 30302(3), (6) and (7);

30606(d); 30307(a)(1). Critics applauded.20

Congress provided that the standards would

apply to the federal government upon

promulgation. 34 U.S.C. §30307(b). States and

localities were required to “certify” compliance

as a condition of certain federal grant-in-aid

money. The Attorney General could enforce

See Turchik supra n.9, 219 (collecting literature).

19 Nolan & Telford, “Indifferent No More: People of Faith

Mobilize to End Prison Rape,” 32 J. LEGIS. 129, 139 (2006)

(noting that the coalition to pass PREA was an "unlikely

amalgam of groups" and observing that it "recruited

legislators from across the political spectrum").

Dumond, “Confronting America's Most Ignored Crime

Problem: The Prison Rape Elimination Act of 2003,” 31 J.

AM. ACAD. PSYCHIATRY & L. 354, 355 (2003).

compliance by withholding up to five percent of

such money as a sanction for non-compliance. 34

U.S.C. § 30307(e). 21

Congress did not create an explicit private

cause of action by prisoner victims in PREA.

Lower federal courts have declined to imply one,

sometimes

treating

such

arguments

dismissively – see discussion, infra, Point II.

Amicus suggests there is another way to look

at Congress’ silence. This Court had already

implied a cause of action for inmate protection

from harm, directly under the Eighth

Amendment. Congress referenced Farmer in

the preamble to PREA (34 U.S.C. § 30302(13)).

Relying on a constitutionally mandated cause of

action, Congress had no need to embellish the

point. The “flesh” would come with the body of

the report and the regulations Congress

mandated.

The Commission investigation took longer

than expected. In the interregnum, critics

21 Cases where funding withdrawal has been at issue seem

to follow their own track, without reference to PREA’s

impact on individual inmates. New York v. Department

of Justice, 951 F.3d 84 (2d Cir. 2020); City of Los Angeles

v. Barr, 941 F.3d 931 (9th Cir. 2019); City of Philadelphia

v. Attorney General, 916 F.3d 276 (3d Cir. 2019).

continued to lament the lack of specificity in

PREA.22

D. The PREA Commission Report.

In 2009, the PREA Commission issued the

“Report” required by 34 U.S.C. § 30306. The

Report found that sixty-five percent of inmates

did not believe they could safely or effectively

report sexual abuse, concluding that only a

fraction (2-3%) of sexual abuse was ever reported

– and some states boasted that they had no rapes

at all in their entire prison system. National

Prison Rape Elimination Commission Report

(June 2009) (passim).

Prison rape continued to be endemic,

although PREA was intended “to be a strong

vehicle for change.”23 In the reality of prison life,

PREA events were discounted or found

“unsubstantiated” because of “poor-quality

See Robertson, “A Clean Heart and an Empty Head: The

Supreme Court and Sexual Terrorism in Prison,” 51 N.C.

L. Rev. 433, 433 n.* (2003). The harsh criticism is derived

from a District Court decision in Smith v. Ullman, 874

F.Supp. 979, 987 (D. Neb. 1994), which had dismissed a

prisoner rape victim’s claims under Farmer and, on

reconsideration, under PREA, prior to the not-yet-issued

regulations. See also, Arkles, “Prison Rape Elimination

Act Litigation and the Perpetuation of Sexual Harm,” 17

N.Y.U. J. LEGIS. & PUBL. POL. 801, 805-6 (2014)

(discussing delays implementing PREA).

23 Martin,

supra n.5, 285.

investigation” or “difficulty gathering sufficient

evidence.”24

E. The PREA Regulations.

After formal rule-making, the Department

of Justice published a Final Rule in 2012 to

establish standards for investigating and

responding to allegations of sexual abuse

committed against prisoners. 28 C.F.R., Part

115. The regulations “account in various ways

for the particular vulnerabilities of inmates who

are LGBT or whose appearance or manner does

not conform to traditional gender expectations.”

77 Fed. Reg. 37106, 37109 (June 20, 2012).

PREA regulations require screening at

intake upon an inmate’s arrival at any new

prison to assess for risk factors for victimization,

28 C.F.R. § 115.41, including prisoners

“perceived

gay,

lesbian,

bisexual, transgender….” Id. at § 115.42(d)(7).

These inmates are to be re-assessed after thirty

days, upon transfer, on the occurrence of an

incident of sexual abuse or harassment, or upon

request.

Other

regulations

address:

creating

protocols on “zero tolerance,” training and

“National Prison Rape Elimination Commission

Report,” U.S. Dept. of Justice, NATIONAL CRIMINAL

JUSTICE REFERENCE SERVICE 118 (2009).

28 C.F.R. § 115.21.

supervision of staff, 26 cross-gender strip

searches,27 reporting and investigation of

incidents,28 and prohibiting retaliation.29 They

require data collection30 and audits.31

F. Lack of Judicial Enforcement of PREA

Regulations.

With two exceptions, lower federal courts

have taken a hands-off approach to attempts

directly to enforce the PREA regulations. “As a

result of compromises made, PREA imposes

minimal consequences on state facilities that

violate its standards.”32

What has evolved from PREA is a selfmonitored program overseen by a group of

industry-identified “monitors,” who report “zero

tolerance” everywhere, with no PREA violations

(100% compliance repeatedly) -- while not

enough has changed.

Id. at §§ 115.13. and 115.31.

Id. at §§ 115.15.

Id. at §§ 115.22, 115.61, and 115.71.

Id. at § 115.67.

Id. at § 115.87.

Id. at § 115.93.

32 Martin,

(same).

supra n.5, 285; see also, Arkles, supra n.22, 805

I have never spoken to a warden or

commissioner of corrections who does

not proclaim a zero tolerance policy in

the prison or department; however,

when I tour facilities and speak with

prisoners, a very different story

inevitably emerges.33

Supposed “zero tolerance” has evolved into a

contrived “safe harbor” used to shelter

correctional defendants from claims of

constitutional torts.34

The two PREA regulations that have been

enforced involve the interplay between PREA

and the Prison Litigation Reform Act [“PLRA”].

28 C.F.R. § 115.52(b)(1) states that corrections

officials may not impose a time limit on filing

grievances alleging sexual abuse under PREA.35

33 Kupers, “Role of Misogyny and Homophobia in Prison

Sexual Abuse,” 18 U.C.L.A. WOMEN’S L. J. 107, 108, 128

(2010); see also, “’I Don’t Believe You, So You Might as

Well Get Used to It’ – The Myth of Zero Tolerance in Texas

Prisons,” NATIONAL PREA RESOURCE CENTER (Nov. 20,

2018).

34 Arkles,

supra n.22, 821 & n.138.

While the proposed rule extended grievance time

deadlines by ninety days, the final rule “places no time

limit on grieving sexual abuse.” The commentary notes:

“[I]nmates may require a significant amount of time in

order to feel comfortable filing a grievance and might need

to wait until their abuser is no longer able to retaliate.”

(fn. cont’d)

This was enforced against Michigan by the Sixth

Circuit in Does 8-10 v. Snyder, 945 F.3d 951, 956

(6th Cir. 2019).

The

second

regulation,

C.F.R.

§ 115.52(d)(1), provides that a final decision on a

PREA grievance must issue within 90 days. A

transgender inmate in Delaware who received

no reply within ninety days to a grievance under

PREA was deemed to have “exhausted” under

the PLRA. Naisha v. Metzer, 2021 WL 5632063

(3d Cir., Dec. 1, 2021).

Despite other litigation barriers imbedded at

the core of the PLRA, litigants have attempted

to use PREA as an additional source of relief for

sexual abuse in custody.

A recent study of

dismissals under the PLRA assessing its impact

on PREA claim found that that LGBT people in

custody raising PREA claims were fifteen

percent of the cases dismissed under the

PLRA.36

The PLRA does not apply to Ms. Cox, as she

filed her complaint after being released from

prison. Former prisoners are not covered by the

PLRA even if their suit concern events that

77 Fed. Reg. 37106, 37138 (June 20, 2012). The statute of

limitations for commencing a lawsuit remains. 77 Fed.

Reg. at 37159.

36 Smith, “Promise Amid Peril: PREA’s Efforts to Regulate

an End to Prison Rape,” 57 AM. CRIM. L. REV. 1599, 1622

(2020).

occurred in custody.37 The interaction of PLRA

and PREA is nevertheless germane here because

it has national implications.

A possible “third” exception could be based

on 28 C.F.R. § 115.72, which limits correctional

officials investigating a sexual assault to a

standard of proof no greater than “a

preponderance of the evidence.”

Amicus is

aware of no appellate decisions applying this

provision. It is amicus’ experience, however,

that, when correctional officials refer a PREA

perpetrator to prosecutors (who think in terms

of “beyond a reasonable doubt”), the officials

accede to a decision not to prosecute – and take

no further action. Thus, a PREA regulation

designed to make it easier to prove sexual

assault administratively is nullified.

On rare occasions, PREA regulations have

been cited in Eighth Amendment cases to

evaluate correctional officials’ states of mind,

their delivery of preventative services, and their

response to reported or reportable events. But

there is wide disagreement among the circuits,

with some perfunctorily closing this door.

Talamantes v. Leyva, 575 F.3d 1021, 1023-5 (9th Cir.

2009); Jackson v. Johnson, 475 F.3d 261, 266-7 (5th Cir.

2007); Norton v. City of Marietta, Okla., 432 F.3d 1145,

1150 (10th Cir. 2005); Nerness v. Johnson, 401 F.3d 874,

878 (8th Cir. 2005); Ahmed v. Dragovich, 29 F.3d 201, 210

n. 10 (3d Cir. 2002). Amicus is not aware of any appellate

authority to the contrary.

POINT II: THE COURT SHOULD GUIDE THE

LOWER COURTS’ APPLICATION OF PREA

IN EIGHTH AMENDMENT PROTECTION

FROM HARM CLAIMS.

A. This Court’s Silence.

The only time the Court has mentioned

PREA occurred in a dissent Woodford v. Ngo,

548 U.S. 81, 117-8 (2006), where three justices

expressed concerns about whether the PLRA

exhaustion

rule

announced

(complete

exhaustion under state rules) would bar

litigation “irrespective of whether a claim is

meritorious or frivolous.” The example given

was a prison sexual assault:

Consider, for example, an inmate who

has been raped while in prison….[I]n

enacting the Prison Rape Elimination

Act…, Congress estimated that some one

million people have been sexually

assaulted in the Nation's prisons over

the last 20 years…. Although not all of

these tragic incidents result in

constitutional violations, the sovereign

does have a constitutional duty to

provide

humane

conditions

confinement," Farmer v. Brennan, 511

U.S. 825, 832 (1994)…. [T]hose inmates

who are sexually assaulted by guards, or

whose sexual assaults by other inmates

are facilitated by guards, have suffered

grave deprivations of their Eighth

Amendment rights. Yet, the… PLRA's

exhaustion requirement risks barring

such claims when a prisoner fails… to

file her grievance… within strict time

requirements that are generally no more

than 15 days….

The final PREA rule responded to this issue in

28 C.F.R. § 115.52(b)(1), as stated above, and

those few Courts of Appeals that have addressed

it have enforced it.

B. The Discordant Courts of Appeals.

Amicus has attempted a national survey.

We found no significant decisions, even nonprecedential ones, in four circuits (Fourth,

Eighth, Tenth, and D.C.).

The First Circuit has not addressed implied

cause of action, although it allowed correctional

defendants to raise PREA in support of denying

hormones to a transgender inmate, arguing that

her Massachusetts prison was too dangerous

under PREA reports and hormones would make

her a target. Battista v. Clarke, 645 F.3d 449,

451 (1st Cir. 2011). The defense was rejected

The Second Circuit has found PREA part of

the “evolving standards of decency” under

Eighth Amendment analysis, and it relied in

part on PREA in broadening protection against

sexual harassment. Crawford v. Cuomo, 796

F.3d 252, 260 (2d Cir. 2015). It said that

legislative enactments like PREA are the

"clearest and most reliable objective evidence of

contemporary values," quoting Atkins v.

Virginia, 536 U.S. 304, 315 (2002). It continued:

It is not only the number of state laws

that is significant, but “the consistency

of the direction of change” in the

law. [quoting Atkins, id.]… [S]exual

abuse of prisoners, once overlooked as a

distasteful blight on the prison system,

offends our most basic principles of just

punishment.

795 F.3d at 260

Although the Third Circuit ruled that there

are no implied remedies under PREA, Bowens v.

Wetzel, 674 Fed. App’x 133 (3d Cir. 2017), it

subsequently reversed an Eighth Amendment

dismissal,where the transgender inmate was

found “at risk” in a PREA screening. Shorter v.

United States, 12 F.4th 366, 368, 375 (3d Cir.

2021).

The Fifth Circuit said plainly that there is

no implied cause of action under PREA, finding

the argument “frivolous.” Krieg v. Steele, 599

Fed. App’x 231, 232 (5th Cir. 2013), cert. denied,

136 S.Ct. 238 (2015).38 In Rivera v. Bonner, 952

F.3d 560, 566, 568 n.2 (5th Cir. 2017), it said that,

while PREA may advise “best practices” for

vetting new correctional staff, the Texas prison

See also, Ard v. Rushing, 597 Fed. App’x 213, 220 n.6

(5th Cir. 2014) (PREA has no relevance).

officials were not constitutionally bound to

follow them. 39

Despite Fifth Circuit hostility, Zollicoffer v.

Livingston, 169 F.Supp.3d 687 (S.D. Tex. 2016),

is described by one commentator as an “example

of how courts could and should reference PREA

standards.”40 The plaintiff alleged a “contrast”

between Texas’ written policies and the “actual

policies condoned.” 169 F.Supp.3d at 692,

pleading that “PREA training is considered a

joke for many TDCJ employees, who believe that

sexual assault of LGBT people is funny.” Id. at

693. The District Court deferred ruling on

qualified immunity and ordered limited

discovery on defendants’ subjective state of mind

under PREA. Id. at 698. The case settled prior

to appeal.41

The Sixth Circuit has Does 8-10 v. Snyder,

and Lucas v. Chalk, supra. While they discuss

The Fifth Circuit allowed defendants to introduce

evidence of PREA’s burdens on their staffing in defending

an inability to provide security coverage for congregate

religious services. Brown v. Collier, 929 F.3d 218, 234 (5th

Cir. 2019).

40 Martin,

supra n.5, 300.

41 14-cv-3037 (S.D. Tex., Febr. 26, 2018), Docket No. 102.

In another District Court settlement in the Fifth Circuit,

the Court approved a consent decree about conditions in

the Orleans Parish jail, citing PREA as a justification for

various provisions. Jones v. Gusman, 296 F.R.D. 416, 454

n.488 (E.D. La. 2013).

PREA, they do not fix its place in Eighth

Amendment analysis.

In J.K.J v. Polk County, 960 F.3d 367, 384

(7th Cir. 2020) (en banc), the Court wrote that the

“risks… in the confinement setting are obvious –

indeed PREA owes its very existence to that

reality.” It then ruled that PREA is not a

constitutional standard, and jails are not

required to adopt it.42

The Ninth Circuit has not applied PREA to

an inmate plaintiff’s case in a published

decision, except for approval of a jury instruction

based on the definition of sexual abuse in 28

C.F.R. § 115.6, in Bearchild v. Cobban, 947 F.3d

1130, 1137 (9th Cir. 2020). It has accepted

defense arguments raising PREA. See Vazquez

v. County of Kern, 949 F.3d 1153, 1159 (9th Cir.

2020) (defendants use adherence to PREA

standards as defense in protection from harm

case); Doe v. Kelly, 878 F.3d 710, 718 (9th Cir.

2017) (defendants seek reconsideration of

preliminary injunction regarding Tucson Border

Patrol holding cells, arguing orders are

impairing their ability to comply with PREA).

Before turning to the Eleventh Circuit,

where this case arose, amicus mentions the

Federal Circuit decision in Bannon, Inc. v.

But see Monroe v. Jeffreys, 2021 U.S. Dist. LEXIS 21224

at **25-26, 2021 WL 391229 (S.D. Ill., Febr. 4, 2021) (court

admits expert testimony based on PREA “goals and

purposes”).

United States, 779 F.3d 1376, 1378-80 (Fed. Cir.

2015). The Court held that it was “beyond

dispute” that the federal Bureau of Prisons could

require a proposed vendor to certify in its bid

that it would comply with PREA.

In this case, the Eleventh Circuit declined to

consider PREA: ‘’Although we have no doubt

that PREA documents could put prison officials

on notice of a substantial risk of serious harm to

an inmate, in this case Cox failed to allege

anything to help us discern what the PREA

documents said.” (Emphasis by the Court).43

Ms. Cox’s pleading is legally similar to that

of Ms. Shorter, sustained by the Third Circuit in

Shorter v. United States, supra. Deliberate

indifference to Ms. Shorter’s safety occurred in

one institution, while Ms Cox was transferred

three times.

The records of Ga.DOC’s

indifference logically followed her to each

institution as she repeatedly requested PREA

screening for her safety, 44 but it took a six-day

hospitalization before she was finally placed in a

Cox v. Nobles, No. 21-6878, Appendix, Court of Appeals

Slip Op’n at 21.

44Records

would include information about Ms. Cox’s

history, security, housing, injuries, hospitalizations,

grievances, and sexual abuse incidents. Central would

know what happened at Autry; Augusta would know what

happened at both Autry and Central. Ga.DOC’s deliberate

indifference increased with each warden’s failure to

perform a PREA screening upon transfer.

PREA dorm, which existed all along but was not

previously used to protect Ms. Cox.

The Eleventh Circuit took the same view of

PREA in Sconiers v. Lockhart, 946 F.3d 1256,

1271 (11th Cir. 2020), where it reversed

summary judgment on a claim of sexual assault

by a guard without mentioning PREA.

Concurring, Judge Rosenbaum wrote that PREA

should have applied, because the guard’s willful

and malicious inserting of a finger in the

plaintiff’s anus was sexual assault with an

“object” within the meaning of 34 U.S.C.

§ 30309(9)(A) and the “evolving standards of

decency” under the Eighth Amendment. Id. at

1270.

The Georgia transgender case of Diamond v.

Owens, 131 F.Supp.3d 1346, 1376-7 & n.33

(M.D. Ga. 2015), cited PREA regulations several

times as “part of” corrections’ expected

knowledge base and standard of care. Releasd

but again incarcerated, Ms. Diamond refiled.

The U.S. Department of Justice filed Statements

of Interest in both cases, arguing that PREA is

relevant to the Eighth Amendment.45

The lower courts have varying and

inconsistent standards for application of PREA

to Eighth Amendment claims. The Court should

grant the writ on this basis alone.

See Diamond v. Ward, 20-cv-0453 (M.D. Ga., Apr. 22,

2021), Docket No. 65.

POINT III:

CONSIDERATION OF PREA

REGULATIONS ACCORDS WITH EVOLVING

STANDARDS OF DECENCY UNDER THE

EIGHTH AMENDMENT.

The Court has long looked to “evolving

standards of decency” as a yardstick to measure

the protections of the Eighth Amendment. See,

e.g. (in reverse chronology), Trop v. Dulles, 356

U.S. 86, 101 (1958) (forfeiture of citizenship as

punishment); Estelle v. Gamble, 429 U.S. 97,

102 (1976) (deliberate indifference to prison

medical care); Hudson v. McMillan, 503 U.S. 1,

10 (1992) (excessive force injuries need not meet

a “significant” threshold); Farmer v. Brennan,

825 U.S. at 834 (deliberate indifference to prison

safety); Roper v. Simmons, 543 U.S. 551, 565

(2005) (banning execution of juveniles); Graham

v. Florida, 560 U.S. 48, 58 (2009) (prohibiting

juvenile sentences of life without parole).

Some Courts of Appeals have specifically

related PREA to evolving standards of decency.

See, e.g., Crawford v. Cuomo, supra. Most,

however, have not been persuaded by PREA to

“evolve” on “standards of decency.”

PREA regulations 28 C.F.R. §§ 115.6(5),

115.6(6), and 115.6(8) are illustrative. They

define sexual abuse of a prisoner by staff or

guards to include sexual contact “through

clothing,” “threats” of sexual contact, and

“voyeurism” -- “with or without consent.”

Yet, the elimination of “consent” as a defense

for sex between staff and inmates under 28

C.F.R. 115.6 is only a rebuttable presumption in

the Ninth Circuit. Wood v. Beauclair, 692 F.3d

1041, 1049 (9th Cir. 2012). The Sixth Circuit

followed Wood. Hale v. Boyle Cty., 18 F.4th 845,

854 (6th Cir. 2021).46 In addition to PREA, a

“growing majority” of states now eliminate

inmate “consent” to sex with staff, classifying it

as statutory rape.47

This trend, plus Congress’ mandate of “zero

tolerance,”

should

invoke

contemporary

standards of decency. But PREA is “not given

much credence by the judiciary…. [which]

contradicts the core purpose of PREA and

undermines progress in extinguishing prison

rape, sexual abuse, and sexual harassment.”48

46 The Tenth Circuit declined a rebuttable presumption as

in Wood, but it found that any such “presumption” would

have been overcome by the inmate victim’s writing

sexually explicit notes to the officer and attempting to

seduce him. Graham v. Sheriff of Logan Cty., 741 F.3d

1118, 1126 (10th Cir. 2013).

47 Penland, “A Constitutional Paradox: Prisoner Consent

to Sexual Abuse in Prison under the Eighth Amendment,”

33 MINNESOTA J. OF LAW & INEQUALITY 507, 510 (2015).

supra n.5, 286. PREA is a “highly relevant….

tool that has been severely hindered by many court’s

seemingly dissonant interpretations.” Id. at 299, 302.

48 Martin,

POINT IV:

FARMER v. BRENNAN DOES

NOT REQUIRE A HEIGHTENED STANDARD

OF PLEADING.

The Eleventh Circuit dismissed on the

pleadings saying that Ms. Cox did not provide

“any context” for her PREA complaints – or the

content of the PREA documents in Ga.DOC’s

possession. As to Ms. Cox’ transfer within the

dorm at her last prison, with her prior assailant

still in the same dorm, the Circuit said her

amended complaint provided no basis for an

inference that she and her assailant would

“encounter each other in an unsupervised

setting.”49

The Eleventh Circuit purported to follow

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007), by looking to whether the allegations

are “plausible” when given all reasonable

inferences. This is not what the Eleventh

Circuit did; instead, it required heightened

specificity in Ms. Cox’s amended complaint.

The

Court

has

cautioned

against

“heightened

pleading”

standards

constitutional cases as contrary to the purposes

of civil rights remedies and the “short and plain

statement” of pleading rules in F.R.C.P.

Cox v. Nobles, No. 21-6878, Appendix, Court of Appeals

Slip Op’n at 18.

8(a)(1). 50 Iqbal and Bell Atlantic did not change

this

paradigm for most constitutional

defendants.

Iqbal, the later case, arose from the

detention after September 11th of Muslim

inmates at Brooklyn’s Metropolitan Detention

Center. Raising multiple constitutional claims,

they sued everyone from the warden (and the

deputy warden) up to the Attorney General and

the Director of the FBI. The latter two were the

only petitioners in Iqbal.

At the Second Circuit, the Court upheld

pleadings against the former warden and deputy

warden in Iqbal v. Hasty, 490 F.3d 143, 166 (2d

Cir. 2007). It found that inferences may fade “at

the extremities of the hierarchy,” but these

lower-level defendants were properly in the case

on the pleadings and that they could raise their

qualified immunity defenses in a motion for

summary judgment after discovery. Id. at 166,

178. The wardens were never before this Court.

Iqbal does not help the wardens and lower-

level defendants Ms. Cox is suing here. It is the

same claim allowed by the Third Circuit in

Shorter, supra, which also deferred ruling on

qualified immunity. Defendants in PREA cases

are typically prison staff, who should not be

See Swierkiewicz v. Sorema, 534 U.S. 506, 515 (2002)

(Title VII); Crawford-El v. Britton, 523 U.S. 574, 580

(1998) (prisoner pleadings); Leatherman v. Tarrant

County, 507 U.S. 163, 168 (1993) (claims against

municipalities).

permitted to raise PREA as a shield while

inmate plaintiffs are precluded from pleading it

as a sword.51

A prisoner victim’s claim may fail if

defendants acted “reasonably in response to the

risk.” Farmer, 511 U.S. at 844. In prisoner

deliberate indifference cases, this is rarely, “a

neat abstract issue of law.” Ortiz v. Jordan, 562

U.S. 180, 190 (2011). Again, the Third Circuit

did not reach this issue on the pleadings in

Shorter, 12 F.4th at 373 n.5, and the Eleventh

Circuit should not have reached it here.

It is amicus’ experience that it is reasonable

to infer that inmates housed in the same dorm

will encounter one another “in unsupervised

settings” many times a day. Ms. Cox’s claim is

plausible.

CONCLUSION.

For the reasons stated, amicus suggests that

the Court should grant the Petition for a Writ of

Certiorari.

Brooklyn, New York

February 16, 2022

51 Martin,

supra n.5, 302.

Respectfully submitted,

LGBT BAR ASSOCIATION OF NEW YORK

(LEGAL)

WILLIAM J. ROLD, ESQ.

(COUNSEL OF RECORD)

98 BERGEN STREET

BROOKLYN, NY 11201

(718) 624-2890

ARTHUR S. LEONARD

ERIC LESH

EXEC. DIR., LEGAL

PROFESSOR EMERITUS

NEW YORK LAW SCHOOL BRETT FIGLEWSKI,

LEG.DIR., LEGAL

185 WEST BROADWAY

601 W. 26TH ST.

NEW YORK, NY 10013

NEW YORK, NY 10014

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