Judge to AG: No-go on killing prison rape lawsuit

A federal judge on Thursday declined to let the state off the hook in the case of a teacher who was brutally assaulted and raped after being left in an unguarded prison classroom with a convicted sex offender.

U.S. District Court Judge Susan Bolton rejected the Arizona attorney general's motion to dismiss the lawsuit on what I would call the state's "who? us?" defense.

The AG's Office had asked Bolton to drop the case on grounds that the state Department of Corrections can't be held accountable for a teacher being placed in an unguarded room with seven sex offenders – one of whom had just gotten 30 years for raping another woman in front of her toddler. And besides that, the AG reasoned, the teacher knew she was working in a prison where "the risk of harm, including assault, always existed."

Attorney General Mark Brnovich didn't sound too happy about his office's handling of the case.

"The original motion was filed before Attorney General Brnovich took office," his spokeswoman Kristen Keogh told me. "But he was disheartened when he learned about the language used in that filing. He is in the process of reviewing all litigation and lawyer conduct."

Scott Zwillinger, attorney for the victim, said he looks forward to the day when a jury can hear what went on here.

"They will be shocked and horrified by the working conditions our client encountered at Eyman prison and the indifference to her safety and the safety of others," he said. "Although we are not optimistic, we hope that the Department of Corrections will acknowledge the obvious deficiencies and make desperately needed changes so that no one else will have to endure the physical and emotional suffering visited upon our client."

I wouldn't be holding my breath on that one, based on way the AG's Office and DOC have handled this case.

The victim, who was a DOC employee, was at the Arizona State Prison Complex-Eyman in January 2014 to give a pre-GED test to seven inmates. Normally, such tests are given in the visitation room, which is monitored by security cameras and corrections officers. But on that day, because of a graduation, she was sent to an unmonitored classroom, handed a radio and told to use it if there was any trouble.

The test lasted 90 minutes during which not a single corrections officer checked on her or radioed to ask if everything was OK. As they finished, six inmates left, returning unescorted to their dorm. One, Jacob Harvey, 20, lingered, according to court documents.

According to the lawsuit, Harvey grabbed the teacher from behind and took her to the ground as she struggled. He then stabbed her repeatedly in the head with a pen, choked her, slammed her head into the floor, tore away her clothes and raped her as she lay bleeding, according to court documents.

The teacher told investigators she screamed for help, but no one came. After the attack, Harvey tried to use the teacher's radio to summon help but no one answered. Turns out it was tuned to a channel the guards didn't even use.

Wasn't that helpful?

The teacher sued, questioning why a civilian employee with no means of defense would be left to fend for herself in a room full of rapists. And why she would be left alone with Harvey, whose security status has been downgraded to medium security.

Assistant Attorney General Jonathan Weisbard, in his motion to dismiss, wrote that the teacher can't prove that corrections officials knew she was being put into a dangerous situation. How were they supposed to know, he reasoned, if she didn't know.

"Plaintiff wants to create an artificial impression that the ADOC officers knew she was in danger but she did not know," he wrote. "It makes no sense. Of course, if Plaintiff did appreciate the danger of her situation, as an employee, she could have done something about it."

Judge Bolton thought it made sense. She's letting the civil suit go forward.

"The factual allegations in the Amended Complaint show that Defendants owed a duty to Plaintiff and that their failure to perform this duty created the dangerous environment in which Plaintiff was placed," she wrote.

Bolton found that the victim "faced an unusually serious risk of harm" by being put into an unguarded classroom and that "it is at least plausible that Defendants knew of the elevated risk" and "acted with deliberate indifference in failing to take steps to address that danger."

It is also plausible to say that DOC and the state AG's office need to take a hard look at what the heck is going in the prisons, when they see no problem with a civilian employee being left in an unguarded classroom with violent inmates while armed only with a radio tuned to the wrong channel.

Harvey is awaiting trial for rape, assault and assorted other crimes in the attack on the teacher.

Like DOC and the AG's Office, he's pleading not guilty.