Appeals court rejects case by gay inmate who was sexually assaulted after homophobic “branding” by sergeant

By William J. Rold. This article appeared in LGBT Bar NY’s LGBT Law Notes. Subscribe here!

Perhaps they will leave it as an unpublished per curiam opinion, but the Eleventh Circuit’s decision in Block v. Pohling, 2018 WL 2110781, 2018 U.S. App. LEXIS 12231 (11th Cir., May 8, 2018), is nevertheless most unfortunate. Jay M. Block, a slight, effeminate, openly gay inmate — Corrections records said he “appears to be a very defenseless individual” — was placed in administrative segregation in a Florida prison after being sexually assaulted by another inmate.

On his arrival in segregation, defendant Sergeant Robert Pohling called him a “fruit, faggot and a punk” in a loud voice, clearly audible to other inmates and staff in an area where holding cells were separated only by wire mesh. Other remarks and “jokes” by Pohling followed. Pohling then double-celled Block with a known violent sex offender, Timothy Hippolyte, who was classified as “of special concern.” Over a period of approximately five days, Hippolyte raped Block numerous times and threatened him if he reported the rapes. Pohling also threatened Block, saying he would “leave prison in a wheelchair” if he sued. Other rapes and defendants figure in the case, allegedly based on Pohling’s homophobic remarks.

As a result of the assaults Block suffered in prison, he was diagnosed with post-traumatic stress syndrome, anxiety, depression, complex rape trauma, aggravated startle response, and bipolarity. Block tried to litigate pro se, since his request for counsel was denied. The district court allowed only “limited” documentary discovery — and it appears from PACER that no depositions were taken. At the time of summary judgment, Pohling was the only defendant left in the case.

In the Report and Recommendation [“R & R”] of U. S. Magistrate Judge Edward M. Wenger and the opinion of Senior U. S. District Judge William Terrill Hodges (M.D. Fla.), adopting the R & R and rejecting Block’s objections, it appeared that the only legal issue was application of the two arms of the test for violation of the right to safety for prisoners enunciated in Farmer v. Brennan, 511 U.S. 825, 828 (1994). Judge Wenger’s R & R found no jury question on either arm of the test: the objective (risk) or subjective (deliberate indifference to the risk). In other words, there was no issue of risk; and, therefore, Pohling could not be indifferent to it — so he recommended summary judgment for Pohling.

On appeal to the district court, Judge Hodges relied primarily on the second prong of Farmer, although adopting the R & R and granting summary judgment against Block. The court found that there was no evidence on which a jury could find that Pohling was subjectively deliberately indifferent.

In the Court of Appeals, the panel (and their appointing Presidents) consisted of Senior Circuit Frank M. Hull (Clinton), Circuit Judge Jill A. Pryor (Obama), and (by designation) U. S. District Judge R. David Proctor (N. D. Ala.) (George W. Bush). They determined to hear oral argument and appointed counsel, who briefed the appeal and appeared for Block at the argument.

The briefs, reviewed in PACER, focused almost entirely on Farmer. Pohling argued that Block was “targeted” because of his effeminacy and size, not Pohling’s remarks; Block claimed that Pohling had “branded” him as a target. The Court of Appeals took an entirely different tack, barely mentioned in the briefs. The court assumed, arguendo, that the Farmer test had been met, but it required a third element: “a causal connection between the defendant’s conduct and the violation,” writing that this test was derived not from Farmer, but from § 1983 itself, citing the pre-Farmer case of LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993).

The court said that Block presented no proof that any other inmate heard Pohling’s remarks and that Hippolyte arrived the day after Pohling’s “derogatory outburst” and therefore could not have been influenced by Pohling. It required too many inferences to show that Pohling’s remarks (which were not isolated) “caused the harm [Block] suffered.”

Of course, causation is an element of every tort case, constitutional or otherwise; but these assaults did not take place at a different time or place from Pohling’s watch; most were under his very nose as area sergeant. Incredibly, the court does not mention that Pohling’s decision as sergeant to place Hippolyte in Block’s cell was a possible source of causation.

It appears to this writer that Block and his counsel were ambushed by the court’s decision. Causation occupied less than a page of Block’s brief, which assumed the case would turn on the subjective arm of Farmer, and the appellee’s and reply briefs do not mention this “third element” in their table of contents. This case resurrects the very defense rejected in Farmer: that a plaintiff had to prove direct causation from a creator of conditions to an assailant’s action to succeed in a protection from harm case.

The Supreme Court wrote in Farmer that liability can occur when the risk is “obvious,” noting: (1) a plaintiff can prevail by “showing that he belongs to an identifiable group of prisoners who are frequently singled out for violent attacks by other inmates”; (2) “it does not matter whether the risk comes from a single source or multiple sources, any more than it would matter whether a prisoner faces an extreme risk of attack for reasons personal to him or because all prisoners in his situation face such risks”; and (3) “it would obviously be irrelevant to liability that the official could not guess beforehand precisely who would attack whom.” 511 U.S. at 843–4.

Block’s case, as is, presents far more concrete evidence on causation than the situations just described. But, if there was any doubt, the Eleventh Circuit should not have affirmed. In Farmer, the Supreme Court remanded, among other reasons, on causation, because the record was inadequately developed, with instructions to the district court to reconsider its denial of further discovery for summary judgment purposes under F.R.C.P. 56(f).

If Block had trial counsel, the points of who heard what and who knew what could have been developed through depositions — something beyond the reach of a pro se plaintiff. The Circuit’s decision might just as well have painted a bull’s-eye on the back of vulnerable LGBT inmates, who, once victimized, do not have the means for counsel or the ability to obtain a lawyer from the court.

Summary judgment can be affirmed on grounds not used by the District Court, but it should not be affirmed on legal theories that the plaintiff had no opportunity to rebut. Even LaMarca, the case on which the Eleventh Circuit purported to rely, remanded for further development on the issue of causation. 995 F.2d at 1549. It is a comprehensive opinion, in which the court anticipated the holding of Farmer: “the finding that a prison condition offends the 8th Amendment presupposes the distinct likelihood that the harm threatened will result.” Id. at 1538.

The Eleventh Circuit here found that “a link between Pohling’s words and the attacks on Block is lacking,” as if Farmer has taught us nothing. The court ends its opinion by condemning Pohling’s “repugnant statements,” as if that were enough for the ruin of a man’s life.

Block was represented on appeal by Joshua N. Friedman, Esq., Washington, D.C.



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Eric Lesh

Eric Lesh


Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.