6th Circuit reverses jury verdict in inmate’s retaliation case

Tuesday, March 24, 2009

A divided three-judge panel of the 6th U.S. Circuit Court of Appeals has reversed a jury verdict in favor of a woman who alleged that prison officials not only failed to protect her from sexual assaults by a prison guard after she had complained but also retaliated against her for making the complaints.

In November 1996, Michele Ortiz, then an inmate at the Ohio Reformatory for Women, was serving a one-year sentence for aggravated assault for stabbing her husband. Ortiz stabbed her husband after she had endured multiple incidents of domestic violence over several years.

According to court records, Ortiz complained of being sexually assaulted by corrections officer Douglas Schultz. She reported the incident the next day to acting case manager Paula Jordan. Jordan told Ortiz that it was Schultz’s last day on the job and that he “is just an old dirty man.” Jordan did not provide protection to Ortiz, but counseled her to stay close to other inmates to make it less likely that Schultz could be alone with her.

Ortiz alleged that later that evening Schultz stood over a sleeping Ortiz, fondled her breast and touched her inside her underwear. According to court records, Ortiz managed to make enough noise to thwart further outrages. Ortiz then told an officer who took the case to institutional investigator Rebecca Bright.

Bright recommended that Ortiz be placed in “security control” while the investigation proceeded. As a result, Ortiz was thrown “in the hole,” the term used for solitary confinement. Bright ordered that Ortiz be placed there in part for discussing the investigation.

Ortiz later filed a federal lawsuit against Jordan, Bright, the warden of the prison, Schultz and the governor of Ohio. She alleged a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. She also alleged that her due-process rights were violated when Bright placed her in solitary confinement. In the complaint, there was not a specific reference to the First Amendment, though the complaint stated that Bright placed her in isolation “with a distinctly punitive purpose.”

For a reason not disclosed in the 6th Circuit’s opinion, Schultz could not be served in the case, but it proceeded with the other defendants. The federal trial court dismissed the governor from the suit and the warden died before the trial began. Thus, at trial there were only two defendants — Jordan and Bright. The jury awarded $250,000 in compensatory damages and $100,000 in punitive damages against Jordan. The jury also awarded $25,000 in compensatory damages and $250,000 in punitive damages against Bright.

Jordan and Bright appealed to the 6th Circuit, contending that they were entitled to qualified immunity — a doctrine that provides that government officials are not liable unless they violate a person’s clearly established constitutional or statutory rights.

In the March 12 majority opinion in Ortiz v. Jordan, Judge Julia Smith Gibbons granted qualified immunity to both defendants and reversed the jury verdict. With respect to the claim arising from the punitive placement in isolation, Gibbons ruled that Ortiz failed to properly plead a retaliation claim under the First Amendment.

“Although Ortiz alleged in her complaint that Bright placed her in isolation ‘with a distinctly punitive purpose,’ arguably invoking a retaliation theory of the case, it is evident from the language in her complaint, as well as from the record as a whole, that her claim was conceived of and analyzed separately as a due process violation and not as a First Amendment retaliation claim,” Gibbons wrote. “We cannot reconstitute Ortiz’s claim under a new theory at this stage of the proceedings.”

Gibbons also determined that Jordan was entitled to qualified immunity on the Eighth Amendment claim, because Jordan’s conduct — while not ideal — did not rise to the level of “deliberate indifference.”

Judge Martha Craig Daughtrey wrote a dissenting opinion in strong language. She termed the result “a legal travesty” and “thoroughly senseless.” She also referred to the “majority’s basis for rejecting the retaliation claim … hyper-technical at the very least.”

John J. Ricatto, Ortiz’s Cleveland-based attorney, said he would file a petition for en banc review. In light of Daughtrey’s strongly worded dissent he remained hopeful that the full 6th Circuit would take the matter.

“The jury clearly found retaliation,” Ricatto said. “This young woman was punished for bring up these allegations.” Ricatto agreed with Daughtrey that the majority’s rejection of the retaliation claims was “hyper-technical.” Although Ricatto did not represent Ortiz when the complaint was drafted and came into the case much later, he says he still believes that the case was pled correctly.

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