After white supremacists allegedly attacked a Colorado inmate for being a "snitch," he sued corrections officials for failing to place him in protective custody. On Friday, a federal judge ruled that his claims may proceed to trial against one of them.
Following his Nov. 11, 2016, assault at the Limon Correctional Facility, Kyle Gray sued multiple prison personnel for disregarding the risk to his life after he testified against a fellow white supremacist gang member in a 2009 carjacking and murder.
Although a federal court dismissed Gray’s claims against most of the defendants since he initially sued in October 2018, U.S. District Court Judge R. Brooke Jackson agreed to let a jury decide the question of whether Lt. Eva Little told Gray the department “did not have to follow” a recommendation that he be separated from white supremacists, and that Gray had ruined any opportunity to secure his own protection.
“These statements suggest that she had the power to influence his placement, and that she affirmatively chose not to help protect him because he did not deserve it,” Jackson wrote in a July 23 order refusing to dismiss Gray’s claim against Little.
Gray was a member of the American Nazi Party and the driver on Sept. 27, 2009, when Kandin Eric Wilson shot and killed 35-year-old Susana Pelayo Perez in Colorado Springs. Gray pleaded guilty to being an accessory to a crime, aggravated robbery and menacing with a weapon. In exchange for his testimony, The Gazette reported that Gray received a plea agreement for a 22-year prison sentence, to be served out of state for his protection.
“If they can get a hold of me, I’ll be killed,” Gray said at the time, referring to white supremacists. The trial court recommended Gray participate in “the inmate swap program” and that the Colorado Department of Corrections make its “best efforts to segregate the Defendant from any white supremacy gangs. This is for the safety of the Defendant.”
Originally, according to his complaint, Gray went to the Buena Vista Correctional Facility in Chaffee County. Despite his concerns about “security threat groups,” namely white supremacists, the prison placed him in the general population. Within minutes, he said, white supremacists attacked him.
In late 2010, Gray received a transfer to the Iowa Department of Corrections, where he stayed for a few years until other inmates discovered he had testified against his co-defendant. In July 2016, Gray went to the Iowa State Penitentiary and was placed in protective custody.
Three months later, he returned to Colorado. Gray admitted he had accrued multiple infractions while out of state. Upon arrival at the Denver Reception and Diagnostic Center, staff told him he would be kept out of the general population until he had a protective custody review. Allegedly, Gray did not know that Colorado had implemented a protective custody program in the time he had been gone.
Gray had a meeting with Little, who was a member of the department’s Unified Intelligence Team. She described to the court that the team monitors the activities of security threat groups, and does not play a role in decisions about whether inmates are classified for protective custody.
Jackson noted that no records exist of Little’s Oct. 27, 2016, interview with Gray. She denied Gray’s version of events and recalled only that Gray “said that he wanted to be placed in general population.”
Gray, by contrast, claimed he told her that he wanted to go out of state again with an alias, and that he was not safe in the general population. Little reportedly said that Gray had “f—ed up” any chance of going out of state again, and he had also "f—ed" up the department’s attempts to help him. She also is accused of saying the trial court’s recommendation about Gray being segregated from white supremacists was something “CDOC did not have to follow.”
One month later, Gray transferred to Limon, where other white inmates surrounded him in the recreation area, punching and kicking him until he lost consciousness.
“Unmonitored by staff, the mob beats the Plaintiff until they grow bored. At no time did staff intercede,” Gray, who is representing himself, wrote in his complaint.
Courts have ruled that corrections officers have a duty to protect people who are incarcerated from violence by other prisoners. Jackson disputed Little’s claim that she was not involved in the decision to place Gray in the general population at Limon just before his assault.
“Plaintiff has come forth with sufficient facts to create a genuine dispute as to whether she personally participated in failing to protect him from physical attacks by white gang members,” the judge wrote. “Plaintiff has come forth with admissible evidence that he told defendant repeatedly he was in danger of being harmed. Once she was on notice of this known threat, she had a duty to respond reasonably.”
In a deposition, Gray estimated there were 200 members of the American Nazi Party in Colorado’s prisons. One of the worst things a gang member could do, he said, was to become a snitch, “and the only retaliation to that is to be killed.”
He believed at least some of people who assaulted him in 2016 were affiliated with the 211 Crew, the racist gang reportedly behind the 2013 assassination of Department of Corrections director Tom Clements. Following the murder, Little appeared at a press conference with other intelligence team members to say that their monitoring activities have generally paid off.
The Colorado Attorney General’s Office argued to the court that Gray had not asked to be placed in protective custody, nor was he certain that the men who attacked him were white supremacists.
Jackson rejected that assertion, saying a reasonable corrections officer would have known that ignoring Gray’s pleas for protection violated his constitutional rights. At the same time, the judge dismissed Gray’s claim against the warden at Limon Correctional Facility, finding Gray had not alleged a sufficient link between the warden’s actions and the gang attack.
The Denver Post reported in 2017 that sending prisoners to other states through the Interstate Corrections Compact is a tool that can disrupt gang communications, but potentially spread their ideology at the same time. An inventory from the Anti-Defamation League found that white supremacist gangs operate in most state prisons and the federal prison system, and can turn on their own like in Gray's case.
"Some of these murders are directed against their own membership, while others are directed at rival gangs or for traditional criminal reasons, and a minority consist of hate-related incidents," the ADL noted. "The gangs combine the criminal intent and knowhow of organized crime with the racism and hate of white supremacy, making them doubly dangerous."
The case is Gray v. Little.