Colorado Politics

Federal court scolds Arapahoe sheriff’s deputy for ‘joke’ about detainee’s sexuality

A federal court has warned an Arapahoe County sheriff’s deputy against joking about an inmate’s sexuality, and has allowed a lawsuit to proceed against him for reportedly retaliating after the inmate complained.

U.S. Magistrate Judge S. Kato Crews determined that Christopher B. Harker, a pretrial detainee at the Arapahoe County Detention Facility, had plausibly alleged Deputy William Neyhart retaliated by depriving Harker of toilet paper after he filed a grievance about the deputy’s homophobic comment.

The grievance was based on an Oct. 22, 2020, incident at the detention facility. As Harker was singing in his cell, Neyhart entered the housing unit and yelled, “I knew you guys were gay!”

Harker identified himself as LGBTQ in his federal complaint. The sheriff’s office investigated but reportedly found the comment was made in “a joking manner.” Crews indicated that if, in fact, the comment was a joke, it was no laughing matter.

“The Court disagrees with Defendant’s characterization of his statement as simple name calling,” the magistrate judge wrote in an Aug. 31 order. He pointed to the Prison Rape Elimination Act of 2003 as proof that Congress intended for sexual assaults behind bars to be taken seriously.

“[L]abeling an inmate as gay is no joke in the lock-up environment, as Defendant suggests,” Crews explained. “Like a prison guard tagging an inmate as a snitch or a pedophile, labeling an inmate as gay could indeed raise a serious risk of harm.”

He pointed to a 1995 court decision from the District of Columbia, in which a federal judge opined that “one can think of few acts that could be more likely to lead to physical injury than spreading rumors of homosexuality” in prison.

Although Harker alleged the deputy’s conduct violated his Eighth Amendment right against cruel and unusual punishment, Crews concluded that Harker failed to establish Neyhart was deliberately indifferent to his safety. There was no credible claim that Neyhart had singled Harker out with his comment and consequently no indication Neyhart knew he was broadcasting Harker’s sexuality.

However, Crews did allow Harker’s second claim against Neyhart to proceed: that the deputy retaliated against Harker for complaining about his remark by allegedly depriving Harker of toilet paper and forcing Harker to use his underwear.

It was reasonable, Crews determined, to believe Neyhart knew of the complaint against him at the time he allegedly failed to give Harker toilet paper. Therefore, it is possible he retaliated against Harker for exercising his First Amendment right to file a grievance.

“[T]he Court concludes denying an inmate toilet paper and forcing him to use his own clothing instead is an injury that would chill a person of ordinary firmness from filing further grievances,” Crews wrote, greenlighting the further discovery of evidence.

Neyhart, in a response filed with the court on Thursday, admitted to making the comment about Harker’s singing. He did not address the toilet paper allegations in his motion to dismiss, but argued to the court that Harker had not suffered any actual injury and, even if he did, that “injuries and damages…were incurred as a result of Mr. Harker’s own conduct.”

The case is Harker v. Neyhart.

Prison interior. Jail cells, dark background.
Photo by Rawf8/iStock
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