A federal judge last month dismissed an incarcerated man’s lawsuit against two corrections officers who allegedly left him in a cell with a gay inmate, despite knowing other prisoners would attack him for rooming with a “known homosexual.”

Although judges have analyzed other cases involving prisoners’ claims that their sexual orientation posed a risk of harm behind bars, Tyron Duante Small alleged another person’s sexual orientation was the factor that put him in danger. 

Small was residing at Fremont Correctional Facility on May 24, 2022 when a group of inmates allegedly attacked him. Small attributed the assault to being placed into a cell with a “known homosexual” days earlier. Small was a member of a “security threat group” through his affiliation with the Bloods gang. According to Small, “it is known” that no security threat group members can be housed with gay cellmates, or else they will be assaulted.

Small sued the official who placed him in the cell, identified as “Sgt. Aragon,” and a second defendant, “Sgt. Holland,” for allegedly violating his Eighth Amendment right against cruel and unusual punishment. Aragon reportedly put him in harm’s way because Small was known to “cause problems.” Small asked for $1 million from each defendant.

Aragon and Holland moved to dismiss the lawsuit, and, in March, then-U.S. Magistrate Judge Kristen L. Mix recommended granting their request. She noted it was unclear what Small’s alleged constitutional violation was.

“Plaintiff may be arguing that Defendants caused him to suffer a constitutional injury when they initially assigned him to live with a gay cellmate,” Mix wrote. Alternatively, “Plaintiff may be arguing that Defendants caused him to suffer a constitutional injury when they failed to move him from his cell and failed to heed his warnings that he was at risk of consequences.”

Either way, Small needed to show he suffered a serious injury and that the defendants were aware they were placing him at substantial risk of harm. Small did not describe what kind of injuries he received in the assault, but he later attached medical records showing swelling and a possible concussion following the attack.

The problem, wrote Mix, was that it was not clear that “assigning a prisoner to live with a gay cellmate” was a risk either defendant should have perceived as a constitutional violation.

“Plaintiff does not allege that he informed Defendant Aragon that he would face ‘consequences’ for living with a gay cellmate before he was assigned to his new cell,” she described.

Moreover, according to his own account, Small was actually moved out of the cell shortly before the attack.

“In other words, Plaintiff was injured after the purportedly unconstitutional conduct – failure to move him to a new cell – stopped,” Mix concluded.

Although Small objected to Mix’s recommendation to dismiss his lawsuit, U.S. District Court Senior Judge William J. Martínez upheld Mix’s analysis and threw out the claims on Oct. 24.

The case is Small v. Aragon et al.