COMPLAINT - American Civil Liberties Union

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

NATHAN ESSARY (#823377), Daniel Unit, Snyder, Texas

Plaintiff,

v.

MICHAEL CHANEY, former Corrections Officer, Luther Unit; WARDEN JERRY BARRETT, Assistant Warden, Luther Unit,

Defendants.

) ) ) ) ) Civil Action No. __________ ) ) ) ) ) ) )

COMPLAINT

PRELIMINARY STATEMENT 1. Nathan Essary, a slightly-built, twenty-two year old man with very little prison experience and a history of mental illness, was a minimum-custody prisoner in the custody of the Texas Departmentof CriminalJustice, inthe LutherUnit in Navasota, Texas, when he was sexually assaulted and raped bya correctionalofficer, Defendant MichaelChaney. When Mr. Essary told Warden Barrett that Officer Chaney was sexually assaulting him, Warden Barrett failed to take timely and adequate remedial measures to protect Essary, with the result that Chaney sexually assaulted Essary again. Mr. Essary brings this suit under 42 U.S.C. ? 1983 for violation of his rights under the Eighthand Fourteenth Amendments to the United States Constitution, and Texas state law, seeking declaratory relief and damages.

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JURIS DICTION 2. This Court has jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. ? 1331, and pursuant to 28 U.S.C. ? 1 343(a)(3) and (a)(4). This Court has supplemental jurisdiction of the Texas state law claims pursuant to 28 U.S.C. ? 1367.

VENUE 3. Venue in this Court is proper as to all Defendants pursuant to 28 U.S.C. ? 1391(a)(2) and (b)(2) because the events giving rise to the claims occurred within this district.

PARTIES 4. PlaintiffNathan Essary is a citizenof Texas currently incarcerated as a sentenced prisoner at the Daniel Unit in Snyder, Texas. From May 2001 to November 2001 he was incarcerated at the Luther Unit in Navasota, Texas. 5. Defendant Jerry Barrett was an Assistant Warden at the Luther Unit, Navasota, Texas, duringtheevents that are the subject of this lawsuit. He is sued in his official and individual capacity. 6. Defendant Michael Chaney, at the time of the events described herein, was employed by the Texas Department of Criminal Justice as a Corrections Officer. He is sued in his individual capacity. 7. At allrelevant times, all Defendants acted under color of state law, and within the scope of their employment.

EXHAUSTION 8. Mr. Essary has exhausted such administrative remedies as were available to him. Mr. Essary's Step 2 grievance form and official reply is attached.

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PREVIOUS LAWSUITS 9. Mr. Essary has never previously filed any lawsuits in state or federal courtrelating to his imprisonment.

STATEMENT OF FACTS 10. In May of 2001, NathanEssary,a slight, twenty-two year old youthwithvery little prison experience, was transferred from the mental health unit at Montford to the Luther Unit in Navasota, Texas as a minimum custody inmate. Mr. Essary was housed at the Montford Unit because he became suicidal after being gang-raped at the Sanchez Unit in El Paso, Texas. 11. Immediately upon arriving at Luther, Mr. Essary was assigned to work in the laundry. His First Shift Officer, Defendant Michael Chaney, worked as a Laundry Manager. Officer Chaney frequently touched inmates under his command, in violation of TDCJ policy. Officer Chaney was well known for sexually harassing inmate workers, and inmates often joked about his proclivities. Officer Chaney began paying unwelcome attention to Mr. Essary shortly after Essary's assignment to the laundry job. Other inmates noticed this attention and teased Essary about it, saying,"Chaney likes you, he's going to eat you up." 12. On information and belief, prior to the events that are the subject of this complaint, several inmates filed sexual harassment or assault complaints or grievances against Defendant Chaney, inaddition to making informalcomplaints against him to prison officials. These complaints alerted Defendant Warden Barrett to the existence of the problem, yet he failed to take reasonable measures to prevent Chaney from inflicting harm on inmates under his control. 13. Mr. Essary was at first embarrassed and afraid to tell officials that Defendant Cha ney was acting in a sexually suggestive manner towards him. Instead, after about one week

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working with Defendant Chaney, Mr. Essary told Captain Rowe, who was in charge of the laundry, that he needed a job change because his medication was making it difficult to wake up early. Mr. Essary was moved to the second shift and escaped from Defendant Chaney for a few months.

14. Beginning in late July or early August 2001, Defendant Chaney was assigned periodically to the second laundry shift where Mr. Essary worked. Shortly thereafter, he began sexually harassing Mr. Essary once more, subjecting Essary to unwelcome and inappropriate touching, patting and rubbingEssary'sback and strokinghis face. Chaney made unwelcome and inappropriate sexually-charged remarks, and questioned Mr. Essary about his sexualityand sexual habits. Defendant Chaney asked, "Have you ever been with a guy before?" Mr. Essarytold him emphatically, "No, I'm not that way." Chaney's harassment escalated; he grabbed Essary by the buttocks and genitals. He ignored Essary's pleas to him to stop the verbal harassment and unwanted touching.

15. Mr. Essary was afraid that if he complained to prison officials, Officer Chaney would concoct false disciplinary charges against him and ruin his chances for parole. Officer Chaney told Essary that he could easily plant contraband in Mr. Essary's cellifhe wanted, to make sure Essary did not go home. Chaney warned Essary that prison officials would always believe an officer over a prisoner.

16. Inlate September or earlyOctober of 2001, Defendant Chaney beganmakingMr. Essary work late as the laundry janitor. The janitor had to remain in the laundry until population count cleared at 9:30 or 9:45 PM; all other inmates working at the laundry generally left before

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9:00 pm. Chaney often chose his "favorites" to work the janitor position, sending the other worker-inmates back to their cells early and remaining alone with the inmate janitor.

17. One area of the laundry looked out into an open shower stall where inmates showered and turned in their dirty clothes. Defendant Chaney would openly comment on inmates' physiques and genitalia while they showered. One evening in early October 2001, after Mr. Essary had completed his janitorialduties, had showered, and was gettingdressed, Officer Chaney locked all the doors to the laundry and ordered Mr.Essary back into the shower room. Officer Chaney grabbed Essary's genitals, and began kissing him. Officer Chaney ordered Mr. Essary, still in boxer shorts, to walk into the sergeant's office next to the shower box. Officer Chaney pushed Mr. Essary up against the closet in the sergeant's office, pulled his pants down and ordered Essary to masturbate him, warning Essary that otherwise he would write him up on a false disciplinary charge. Seeing Mr. Essary's distress and horror, Officer Chaney smirked and told him that he would like the sex one day.

18. After Mr. Essary obeyed Officer Chaney's orders to masturbate him and Chaney ejaculated, Chaney went to get a towel to clean up, leaving Mr. Essary alone for a moment. Mr. Essary used his handkerchiefto wipe a small sample of Chaney's ejaculate from his hand. When Chaney returned, he told Essary not to tell anyone what happened or Chaney would make sure that Essary got into serious trouble.

19. When he was alone in his cell, Essary cut a piece of the handkerchief with the ejaculate on it and sent it to the United States Attorney in Houston.

20. About a week after the first attack, Officer Chaney again ordered Mr. Essary to work as a janitor. Around 9:00 pm, Chaney called Essary into the captain's office. Chaney

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