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Of the hundreds of unsuccessful federal civil-rights suits filed each year by Texas prison inmates, Johnson v. Johnson may be the most notable in quite some time for two reasons: It focuses on a delicate issue (the prison system’s attitude toward rape) and it has been cleared for trial. The case concerns Roderick Keith Johnson, a former Texas prison inmate who claims he was subjected to a horrific 18-month period of imprisonment in which he repeatedly was raped by prison gang members who bought and sold him as a “sexual slave,” as alleged in Johnson’s petition. In 2002, Johnson filed the suit against numerous Texas Department of Criminal Justice (TDCJ) officials alleging that they failed to protect him and repeatedly ignored his requests for help � claims the department denies. A U.S. district judge rejected several of the department’s claims of governmental immunity, a ruling TDCJ appealed. On Sept. 8, the 5th U.S. Circuit Court of Appeals agreed with the trial court on Johnson’s most important point � that he had established a factual question as to whether prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment by refusing his requests for protection. “This is a big case,” says Carl Reynolds, general counsel of TDCJ who has not decided whether to appeal the ruling. Reynolds adds that it is a decision that “we’ll be looking at for years to come.” The litigation in Johnson shows that while Texas prisons have come a long way since the landmark 1970 Ruiz v. Estelle civil-rights litigation that forced the TDCJ to make wholesale reforms, there is still much to be done on the subject of prison rape, says Margaret Winter, Johnson’s lawyer and associate director of the National Prison Project of the American Civil Liberties Union. “It’s the tip of the iceberg. We’re talking about thousands of people who are being victimized at the worst prisons,” Winter says of TDCJ. “I want to stress this � we know that they can and have cleaned up some of the facilities.” “But unfortunately there are some places within the system that have administrators of the old school who are not cleaning this up,” Winter says. “And it takes an active effort.” Reynolds says that effort is indeed active within the prison system, especially since Congress passed the Prison Rape Elimination Act a year ago to better protect prisoners against attacks. The Texas Legislature passed similar legislation even earlier, he says. “This issue is something that is first and foremost on the minds of prison administrators nationwide,” Reynolds says. “I think TDCJ is working this issue very hard. . . . The department is really committing to doing the right thing.” Safekeeping According to the 5th Circuit opinion, Johnson was on probation for a nonviolent burglary conviction when a judge found he violated that probation and sent Johnson to prison in January 2000. Prison officials knew that Johnson was homosexual and had an effeminate manner, according to the opinion. He requested that he be placed in “safekeeping” � housing that protects vulnerable inmates from more aggressive offenders. Prison officials rejected his request and placed Johnson in the general population at the Allred Unit in Wichita Falls. Other inmates started raping Johnson almost immediately after the placement, according to the opinion. “Putting a guy like that in a place like Allred was like throwing a raw steak to a bunch of dogs,” Winter says. Johnson sought help from guards, filed numerous “life endangerment” forms and wrote letters to prison administrators asking for transfers on multiple occasions between December 2001 and January 2002. Each time prison officials denied his requests, ostensibly because there was no concrete evidence of victimization, according to the opinion. “The defendants, at least according to Johnson, repeatedly expressed the view that Johnson must “learn to f or fight,’ ” according to the opinion written by Chief Judge Carolyn Dineen King and joined by Judges Rhesa Barksdale and Charles Pickering. “Given the facts that we must assume for purposes of this appeal, this was not a reasonable response and it indeed contravenes clearly established law,” King wrote in denying qualified immunity to seven prison officials who range from a prison warden to intake administrators. After alleging he received no help from prison officials to whom he had made formal complaints, Johnson wrote the ACLU’s prison project, which normally handles prison class-action cases. “When he got in touch with us he was desperately trying to get into safe-keeping. He seemed credible,” Winter says. “And his complaints jibed with other things we’d heard from dozens of other prisoners.” Winter says the prison project faxed a demand letter to Gary Johnson, executive director of the TDCJ, to get Roderick Keith Johnson moved to another unit. “He was moved out within five days of that fax,” Winter says. Gary Johnson says he recalls the fax and says it was forwarded to the TDCJ’s prisons director. In the wake of the Johnson suit, Winter says the ACLU prison project has been successful at getting other victimized prisoners moved. But Gary Johnson says that TDCJ has been working hard for years to prevent rape inside prisons, including changing the way prison rapes are reported to more accurately reflect them, educating prisoners on how to report rape incidents and using licensed peace officers to investigate those reports. According to TDCJ, there were 457 reports of alleged sexual assault between October 2001 and October 2002, and 467 reports of alleged sexual assault between November 2002 and November 2003. “In a prison setting, even though you try to put all of the systems in place and train them [staff] well, from time to time, bad things are going to happen,” Gary Johnson says. “And we try to minimize that.” Roderick Keith Johnson, who eventually won parole on Dec. 19, 2003, is back in jail being held for a parole violation, says Mike Viesca, a spokesman for TDCJ. Johnson was arrested on July 19 for aggravated assault for allegedly pulling a knife on his roommate in Austin � a charge that was later no-billed by a Travis County grand jury. The Texas Board of Pardons and Paroles held a preliminary parole revocation hearing on Sept. 10, the results of which are not yet public, Viesca says. A Tough Trial When Johnson v. Johnson heads back to the trial court before U.S. District Judge Jerry Buchmeyer, it may be difficult for the plaintiff to prove his damages, say several lawyers familiar with such suits. For example, in February, a Wichita County grand jury rejected 49 sexual assault charges against convicts accused of raping Johnson. The Office of the Inspector General for TDCJ thoroughly investigated Johnson’s criminal complaints, but there were weaknesses in those cases, says Gina DeBottis, chief attorney of the Special Prosecution Unit, which prosecutes crimes committed within Texas prisons. DeBottis says there were inconsistencies in Johnson’s story and some things Johnson told investigators didn’t pan out. “It’s really difficult to prosecute. But that being said, we take these cases very seriously and OIG investigates them,” DeBottis says. “And every so often [grand juries] indict them. But as a practical matter, they’re very difficult to prove.” But Dave O’Neil, a partner in Huntsville’s Habern O’Neil and Buckley who represents prison inmates, believes prison rape cases still are under-reported and under-prosecuted within the prison system. Such statistics reflect badly on prison staff, he says. “There’s not a whole lot of desire to protect these people,” O’Neil says. “And I don’t want to paint with too broad of a brush, but there are correctional staff inside the prison system that think if you’re homosexual you deserve what you get.” While criminal prison rape cases are hard to prove because they boil down to one prisoner’s word against another, it may be even tougher for Johnson to prevail in his civil suit, which will boil down to Johnson’s word against the prison officials. “He’s at a great disadvantage because he’s a prisoner and they’re prison officials. He starts out with that uphill battle,” Winter says. “But his story is very consistent and it’s consistent with many other prisoners in the Texas prison system. I think he’s going to win.” While the ACLU prison project has handled prison litigation for more than 30 years, there is one aspect of Johnson v. Johnson that’s new: It has damages attached to it. Over the years, prison litigation reform measures have made it difficult to get to court, especially with a damages case, Winter says. Johnson’s damages case may spur even more prison reform and curb prison rape, she says. “We think it’s an important new kind of challenge to bring in these cases,” Winter says, adding that something needs to be done to stop prison rapes.

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