In another Texas legal victory, a unanimous federal appeals court has ruled that seven ranking Texas prison officials can be sued for damages due to discrimination based on sexual orientation.

The ruling by the Fifth Circuit Court of Appeals was in response to a lawsuit filed by the American Civil Liberties Union on behalf of a gay man who was repeatedly raped by prison gangs and whose pleas for help were ignored by officials.

Margaret Winter, Associate Director of the ACLU’s National Prison Project and an attorney for the former prisoner, Roderick Keith Johnson, said the decision, issued late Wednesday, upholds the right to proceed in the case under the Eighth Amendment’s protection against cruel and unusual punishment.

“I could not be more pleased that we are one step closer to Roderick Johnson having his day in court,” said Winter.

“Once heard, Mr. Johnson’s testimony about the horrifying abuse he endured and the prison staff’s deliberate indifference to that abuse will shock Texas citizens and hopefully bring about improvements for all prisoners in similar circumstances.”

Houston gay activist Ray Hill, host of “the Prison Show” on radio station KPFT-FM, 90.1, said he received a letter from Johnson about four years ago, and he read it on the air.

“He said he kept begging to be placed in isolation — they call it ‘safe-keeping,’” Hill said.

Hill said Johnson quoted prison guards as saying, “You keep getting fucked, and you ain’t fighting back.”

The guards’ reactions in the Johnson case were not out of the ordinary, Hill said. “This is practice in Texas prisons. They’re going to the administration for help, and they aren’t getting it.”

For 18 months, Johnson was housed at the James A. Allred Unit in Iowa Park, Texas, where prison gangs bought and sold him as a sexual slave, raping, abusing, and degrading him nearly every day, the ACLU said in legal papers.

Although Johnson filed numerous grievances, letters, and complaints with prison officials and appeared before the unit’s classification committee seven separate times asking to be transferred to safe-keeping, protective custody, or another prison, each time he was refused.

Prison officials finally moved Johnson out of the Allred Unit and into a wing designated for vulnerable prisoners only after the ACLU intervened on his behalf.

Lower court dismissed suit
Johnson first took his case to a lower court, but Hill noted that the judge dismissed it. He said he didn’t expect much from the appeals court.

“This is not a friendly panel,” Hill said. “I wasn’t optimistic. I’m pleasantly surprised.”

In its brief to the appeals court, the ACLU showed that Johnson had produced ample evidence that Texas prison officials “were well aware of the significant risk that... [he] would be raped and that they consciously disregarded the risk, arbitrarily denying him protection.”

Direct evidence provided by Johnson includes statements by prison officers announcing that they were denying him protection because it was up to Johnson to “fight off predators.”

In its unanimous ruling, the appeals court noted the U.S. Supreme Court’s 1994 ruling that officials have a duty to protect prisoners from violence at the hands of other prisoners.

In that ruling Justice David H. Souter wrote, “[H]aving stripped them of virtually every means to self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course. Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.”

Although it was the ACLU that argued the case, Hill said, he will take credit for bringing the matter to their attention through his radio show.

“I’m gratified that I could start the ball rolling and that it can bring some relief,” Hill said.

Hill noted that Johnson’s case now “goes back to the court with action consistent with the appeals court ruling. He’s only half way there.”

The case already is changing the way prison guards deal with inmates who complain that they have been sexually abused, Hill said.

A letter from another inmate came across Hill’s desk not long ago. In addition to sexual abuse, the man said inmates had tattooed thick, black eyebrows on his face. He asked Hill, “Could you find someone who can help me get rid of these tattoos?”

That inmate, named Steve, also indicated that he had recently been placed in isolation after four years of being raped.

“They saw this coming,” Hill said. “That’s why Steve got placed in safe-keeping.”

Gay Houston attorney Jerry Simoneaux said gay and lesbian clients who may end up in prison constantly ask, “Am I going to survive?”

He added, “Gay and lesbian people are scared to death when they have to go to jail.”

This week’s ruling, “Gives me incredible hope,” Simoneaux said. “This is an amazing time in history.”

© Copyright 2006 Window Media LLC | User Agreement and Privacy Policy

Southern Voice | Express Gay News | David Atlanta | The 411 Mag | Genre Magazine