The federal appeals court based in Denver has granted immunity to three officials who allegedly failed to protect an inmate from sexual assault despite hearing about the risk of physical violence to her.

In reaching its decision, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit sidestepped the issue of whether prisoners may seek monetary damages from corrections employees who fail to protect them. Instead, the panel concluded the defendants had not violated Divinity Rios’ rights in the first place when they allegedly laughed at her warnings of abuse.

Rios, who is incarcerated at the Federal Correctional Institution in Florence, asserted an infringement on her Eighth Amendment right to be free from cruel and unusual punishment after three prison investigators ended her stay in segregated housing and returned her to the general population. Rios claimed they ignored the risk of harm, given that another prisoner assaulted her upon her return.

On Tuesday, the 10th Circuit granted qualified immunity to the three defendants, identified as special investigative services technicians Redding, Simms and Jones. Rios’ constitutional claim needed to show that the employees were deliberately indifferent to a serious risk of harm to her, and that they were aware of the risk. 

But Judge Robert E. Bacharach, writing for the panel, pointed out that Rios had doomed her own argument when she described in her narrative of events that the defendants neglected “to adequately comprehend and realize the seriousness of the situation when ‘forcing’ Plaintiff Rios to go back to the FCI Florence general population.”

“If the investigators did not ‘comprehend and realize the seriousness of the situation,’ as alleged, they would not have recognized a substantial risk to Ms. Rios,” Bacharach explained in the March 22 order.

Rios initially represented herself when filing her lawsuit, and received legal representation from the Roderick & Solange MacArthur Justice Center during her appeal. Elizabeth Bixby, who argued the case to the 10th Circuit panel, said she was disappointed in the “unfair” decision.

“The court ended Ms. Rios’s suit based solely on a single line in a complaint drafted by a prisoner before she had the assistance of a lawyer, without even giving her an opportunity to amend her complaint and clear up any confusion,” Bixby said. “Ms. Rios deserves a chance to hold prison officials accountable for failing to protect her from being raped.”

The case of Rios, who is transgender, attracted the attention of multiple civil rights and advocacy organizations, including the Institute for Justice, the Center for Constitutional Rights, the Lambda Legal Defense and Education Fund, Inc. and the Transgender Legal Defense & Education Fund. Six former leaders of state corrections departments also filed a brief to the 10th Circuit in support of Rios.

“In this case, Ms. Rios’s transgender status, repeated recent sexual victimization, and the ongoing threats of assault against her should have indicated to corrections officers that her concerns needed to be taken seriously,” the officials wrote.

Rios alleged that she alerted a corrections official in summer 2019 that she was being extorted for sexual favors by other inmates. She requested protective custody and received an assignment to the special housing unit for 30 days.

Reportedly, near the end of her stay, the defendants conducted an interview of Rios in which they “humiliated, degraded and disparaged Plaintiff for being a transgender inmate, a Muslim and for having (tattoos),” Rios wrote. She allegedly told them she had performed sexual acts in general population to avoid being assaulted, but the investigators “went so far as to laugh and make jokes.” 

They returned her to the general population, where another inmate sexually assaulted her.

In May of last year U.S. Magistrate Judge Michael E. Hegarty dismissed Rios’ lawsuit. He explained that the U.S. Supreme Court has only acknowledged the ability of people to sue federal officers for monetary damages in three types of cases: unreasonable searches and seizures, sex discrimination and failing to provide adequate medical care.

Hegarty wrote that Rios was not entitled to relief for the roughly $2 million she sought from the defendants, known legally as a “Bivens remedy.” Instead, he advised her to file an administrative grievance or seek sanctions against the employees for mishandling a sex assault report.

On appeal, the organizations supporting Rios argued that the 10th Circuit should recognize that a Bivens remedy is available because prison officials have a constitutional duty to protect inmates from obvious risks of harm – and LGBTQ people behind bars have an elevated risk of abuse.

Rios’ lawyers attempted to steer the 10th Circuit to answer whether inmates have a Bivens remedy to sue prison officials for a failure to protect. Earlier this month, they alerted the panel to a recent 2-1 decision from the Ninth Circuit, based in San Francisco, which found an inmate could, in fact, pursue his Eighth Amendment claim against a correctional officer who had labeled him a snitch, resulting in a “predictable” assault on the inmate.

However, the 10th Circuit panel refused that entreaty, also largely ignoring the magistrate judge’s previous conclusions on the issue.

Instead, the panel found the three defendants deserved qualified immunity, which shields government officials from civil liability unless they violate a person’s clearly-established legal rights. The judges agreed with the government that, although Rios shared her fear of harm with the investigators, they did not violate her rights by failing to believe her.

Rios’ allegations “reflect only the investigators’ knowledge of facts that could imply a risk, not the investigators’ actual recognition of the risk,” wrote Bacharach.

The case is Rios v. Redding et al.