WALKER v. COUNTY OF GLOUCESTER et al

Filing 213

MEMORANDUM. Signed by Judge Eduardo C. Robreno (EDPA) on 1/25/2022. (alb)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TERRY J. WALKER,

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Plaintiff,
v.
COUNTY OF GLOUCESTER,, et al.,
Defendants.

CIVIL ACTION
NO. 15-7073

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 nonconsensual 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 limine 2
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
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.
1

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.
2

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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 crossexamination. 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

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).
3

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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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