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«IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS NATHAN ESSARY (#823377), ) Daniel Unit, Snyder, Texas ) ) Plaintiff, ) ) Civil ...»

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

NATHAN ESSARY (#823377), )

Daniel Unit, Snyder, Texas )

)

Plaintiff, )

) Civil Action No. __________

v. )

)

MICHAEL CHANEY, former Corrections ) Officer, Luther Unit; WARDEN JERRY ) BARRETT, Assistant Warden, Luther Unit, ) ) Defendants. ) COMPLAINT

PRELIMINARY STATEMENT

1. Nathan Essary, a slightly-built, twenty-two year old man with very little prison experience and a history of mental illness, was a minimum-custody prisoner in the custody of the Texas Department of CriminalJustice, in the Luther Unit in Navasota, Texas, when he was sexually assaulted and raped by a correctionalofficer, Defendant Michael Chaney. When Mr. Essary told Warden Barrett that Officer Chaney was sexually assaulting him, Warden Barrett failed to take timely and adequate remedial measures to protect Essary, with the result that Chaney sexually assaulted Essary again. Mr. Essary brings this suit under 42 U.S.C. § 1983 for violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution, and Texas state law, seeking declaratory relief and damages.

JURISDICTION

2. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. § 1331, and pursuant to 28 U.S.C. § 1343(a)(3) and (a)(4). This Court has supplemental jurisdiction of the Texas state law claims pursuant to 28 U.S.C. § 1367.

VENUE

3. Venue in this Court is proper as to all Defendants pursuant to 28 U.S.C. § 1391(a)(2) and (b)(2) because the events giving rise to the claims occurred within this district.

PARTIES

4. Plaintiff Nathan Essary is a citizen of Texas currently incarcerated as a sentenced prisoner at the Daniel Unit in Snyder, Texas. From May 2001 to November 2001 he was incarcerated at the Luther Unit in Navasota, Texas.

5. Defendant Jerry Barrett was an Assistant Warden at the Luther Unit, Navasota, Texas, during the events that are the subject of this lawsuit. He is sued in his official and individual capacity.

6. Defendant Michael Chaney, at the time of the events described herein, was employed by the Texas Department of Criminal Justice as a Corrections Officer. He is sued in his individual capacity.

7. At allrelevant times, all Defendants acted under color of state law, and within the scope of their employment.

–  –  –

8. Mr. Essary has exhausted such administrative remedies as were available to him.

Mr. Essary’s Step 2 grievance form and official reply is attached.

–  –  –

10. In May of 2001, Nathan Essary, a slight, twenty-two year old youth with very little prison experience, was transferred from the mental health unit at Montford to the Luther Unit in Navasota, Texas as a minimum custody inmate. Mr. Essary was housed at the Montford Unit because he became suicidal after being gang-raped at the Sanchez Unit in El Paso, Texas.

11. Immediately upon arriving at Luther, Mr. Essary was assigned to work in the laundry. His First Shift Officer, Defendant Michael Chaney, worked as a Laundry Manager.

Officer Chaney frequently touched inmates under his command, in violation of TDCJ policy.

Officer Chaney was well known for sexually harassing inmate workers, and inmates often joked about his proclivities. Officer Chaney began paying unwelcome attention to Mr. Essary shortly after Essary’s assignment to the laundry job. Other inmates noticed this attention and teased Essary about it, saying,“Chaney likes you, he’s going to eat you up.”

12. On information and belief, prior to the events that are the subject of this complaint, several inmates filed sexual harassment or assault complaints or grievances against Defendant Chaney, in addition to making informal complaints against him to prison officials. These complaints alerted Defendant Warden Barrett to the existence of the problem, yet he failed to take reasonable measures to prevent Chaney from inflicting harm on inmates under his control.

13. Mr. Essary was at first embarrassed and afraid to tell officials that Defendant Chaney was acting in a sexually suggestive manner towards him. Instead, after about one week working with Defendant Chaney, Mr. Essary told Captain Rowe, who was in charge of the laundry, that he needed a job change because his medication was making it difficult to wake up early. Mr. Essary was moved to the second shift and escaped from Defendant Chaney for a few months.

14. Beginning in late July or early August 2001, Defendant Chaney was assigned periodically to the second laundry shift where Mr. Essary worked. Shortly thereafter, he began sexually harassing Mr. Essary once more, subjecting Essary to unwelcome and inappropriate touching, patting and rubbing Essary’s back and stroking his face. Chaney made unwelcome and inappropriate sexually-charged remarks, and questioned Mr. Essary about his sexualityand sexual habits. Defendant Chaney asked, “Have you ever been with a guy before?” Mr. Essary told him emphatically, “No, I’m not that way.” Chaney’s harassment escalated; he grabbed Essary by the buttocks and genitals. He ignored Essary’s pleas to him to stop the verbal harassment and unwanted touching.





15. Mr. Essary was afraid that if he complained to prison officials, Officer Chaney would concoct false disciplinary charges against him and ruin his chances for parole. Officer Chaney told Essary that he could easily plant contraband in Mr. Essary’s cellif he wanted, to make sure Essary did not go home. Chaney warned Essary that prison officials would always believe an officer over a prisoner.

16. In late September or early October of 2001, Defendant Chaney began making Mr.

Essary work late as the laundry janitor. The janitor had to remain in the laundry until population count cleared at 9:30 or 9:45 PM; all other inmates working at the laundry generally left before 9:00 pm. Chaney often chose his “favorites” to work the janitor position, sending the other worker-inmates back to their cells early and remaining alone with the inmate janitor.

17. One area of the laundry looked out into an open shower stall where inmates showered and turned in their dirty clothes. Defendant Chaney would openly comment on inmates’ physiques and genitalia while they showered. One evening in early October 2001, after Mr.

Essary had completed his janitorialduties, had showered, and was getting dressed, Officer Chaney locked all the doors to the laundry and ordered Mr.Essary back into the shower room. Officer Chaney grabbed Essary’s genitals, and began kissing him. Officer Chaney ordered Mr. Essary, still in boxer shorts, to walk into the sergeant’s office next to the shower box. Officer Chaney pushed Mr. Essary up against the closet in the sergeant’s office, pulled his pants down and ordered Essary to masturbate him, warning Essary that otherwise he would write him up on a false disciplinary charge. Seeing Mr. Essary’s distress and horror, Officer Chaney smirked and told him that he would like the sex one day.

18. After Mr. Essary obeyed Officer Chaney’s orders to masturbate him and Chaney ejaculated, Chaney went to get a towel to clean up, leaving Mr. Essary alone for a moment. Mr.

Essary used his handkerchief to wipe a small sample of Chaney’s ejaculate from his hand. When Chaney returned, he told Essary not to tell anyone what happened or Chaney would make sure that Essary got into serious trouble.

–  –  –

ejaculate on it and sent it to the United States Attorney in Houston.

20. About a week after the first attack, Officer Chaney again ordered Mr. Essary to work as a janitor. Around 9:00 pm, Chaney called Essary into the captain’s office. Chaney demanded sex from Mr. Essary and threatened to write him up if he refused. When Essary refused the demand for sex, Chaney told Essary that he would make his life a “living hell” with gangs if he did not do what he was told. He also warned Essary that he was good friends with gangs at Luther and that he only had to put money on gang members’ accounts to have Essary killed. Mr. Essary was terrified. He had heard of other prisoners being murdered for pay and he believed that Chaney could have him assaulted or killed.

21. Defendant Chaney forced Mr. Essary to perform oral sex on him in the Captain’s bathroom. When Chaney began ejaculating, Mr. Essary gagged and spit up some of the ejaculate on the floor. Defendant Chaney left the bathroom to get a towel to clean the floor. While Chaney was away, Mr. Essary again used his handkerchief to capture some of the ejaculate from the floor.

He hid the handkerchief before Chaney returned.

22. After making Mr. Essary clean the floor, Defendant Chaney smirked and taunted him, “You know you liked it.” He then warned Mr. Essary that if he reported what had happened, Chaney would get gang members to attack Mr. Essary.

23. When Mr. Essary returned to work in the laundry on October 27 and October 28, 2001, Chaney approached him several times and told him that he wanted to “do it again soon.”

–  –  –

On October 31, 2001, he was called out to speak with the unit counselors. He met with two psychologists, and told them about Chaney’s sexualassaults. One of the psychologists, Mr. Howe, told him that he had received complaints from other inmates about Officer Chaney. Mr. Howe summoned Defendant Assistant Warden Barrett.

25. Mr. Essary told Warden Jerry Barrett that Officer Chaney was sexually assaulting him and threatening him, and asked for protection. Warden Barrett told Essary that he would receive a job change. Mr. Essary told Warden Barrett that he needed help right away because he was scheduled to work in the laundry that very night; he asked to be excused from work because Chaney would be there. Defendant Barrett ignored these pleas and told Mr. Essary, “Don’t worry, you’ll get a job change.”

26. That same afternoon, Officer Chaney arrived at Mr. Essary’s cell and told him to come to work. Essary was terrified. Warden Barrett had not protected him, and he believed that if he refused Officer Chaney’s order to go to work, he would receive a major disciplinary case that would add an extra year before he could be eligible for parole review. He went to work as ordered by Officer Chaney.

27. Later that afternoon, Officer Chaney told Essary that he knew Essary was getting a job change, and that since he was leaving, he would have to stay late as the janitor so they could “do it one more time.” Before 9:00 pm, Officer Chaney sent the other inmate workers home and then ordered Mr. Essary into the captain’s office. Officer Chaney locked the outside doors so it appeared that no one was in the laundry. Officer Chaney forced Mr. Essary into the Captain’s bathroom, where he kissed Mr. Essary all over his mouth, neck and face, and tried to force his tongue into Mr. Essary’s mouth. He called Mr. Essary his “snack” and ordered him to “get hard,”which Mr. Essary was unable to do. Officer Chaney therefore ordered Mr. Essary to masturbate him. Essary obeyed. Once Chaney ejaculated, he got towels and made Mr. Essary clean up. He then let Mr. Essary return to his cell.

–  –  –

he had been given a job change to the medical squad.

29. On information and belief, Officer Chaney was indicted on May 30, 2002 for one count of aggravated sexual assault and improper sexual activity, after DNA evidence linked him to the crime against Mr. Essary.

30. Warden Barrett failed to provide Nathan Essary with reasonably adequate protection against sexual assault and harassment. As the proximate result of all of the above, Nathan Essary, faced a constant and pervasive threat of violence, sexual assault, and sexual harassment.

31. As a result of the Defendants’ acts and omissions which are the subject of this complaint, Nathan Essaryhas suffered physical injuries, excruciating emotional pain, psychological injury, humiliation, embarrassment and constant fear.

–  –  –

32. Defendant Chaney engaged in a deliberate and outrageous invasion of Mr. Essary’s bodily integrity that shocks the conscience in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.

33. Defendant Chaney misused and abused the official power granted to him by the state in the performance of his official duties thereby causing the harm to Mr. Essary.

34. Defendant Chaney engaged in conduct with malice and reckless or callous indifference to the constitutional and statutory rights of Mr. Essary.

–  –  –

35. Defendant Barrett knew that he had a legalobligation to protect Mr. Essary from assault and sexual attack, and knew that his actions and omissions created a substantial risk of serious injury to Mr. Essary. With deliberate indifference to Mr. Essary’s personal safety, Defendant failed to protect him from substantial risk of serious harm, in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.

36. The deprivations of Mr. Essary’s rights described herein constitute a risk of harm so grave that it violated contemporary standards of decency.

–  –  –

37. Defendant Chaney, acting within the scope of his agency, recklessly and with the intention of causing Mr. Essary severe emotional distress, engaged in extreme and outrageous conduct by sexually assaulting and harassing Mr. Essary, and by promoting a threatening and unduly hostile and antagonistic environment.

38. As a direct and proximate result of Defendant’s acts, which were so outrageous in character and extreme in degree as to be utterly intolerable in a civilized community, Mr. Essary suffered severe emotional distress and was injured and damaged thereby.

39. Defendant Chaney engaged in conduct with malice and reckless or callous indifference to the rights of Mr. Essary.

–  –  –



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