United States v. Private First Class DONALD P. LAVIOLET ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class DONALD P. LAVIOLET
United States Army, Appellant
ARMY 20190235
Headquarters, United States Army Maneuver Center of Excellence
Wendy P. Daknis, Military Judge
Colonel Jackie L. Thompson, Jr., Staff Judge Advocate
For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Kyle C. Sprague, JA (on brief and reply brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Captain Marc J. Emond, JA (on brief).
4 September 2020
This opinion is issued as an unpublished opinion and; as such, does not serve as precedent.
WALKER, Judge:
Appellant asks this court to disapprove his punitive discharge because
mistreatment by a prison guard violated his rights against cruel and unusual
punishment under the Eight Amendment to the U.S. Constitution and Article 55,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 855. We hold that, while
appellant endured inexcusable behavior during his confinement, the mistreatment
appellant suffered is insufficient to establish conduct amounting to cruel and unusual
punishment.
LAVIOLET—ARMY 20190235
I. BACKGROUND
We review this case under Article 66, UCMJ. On appeal, appellant asserts
that he suffered cruel and unusual punishment, in violation of the Eighth
Amendment and Article 55, UCMJ, as a result of inappropriate verbal and non-
verbal communication and use of excessive force during frisk searches by a prison
guard while serving his sentence to confinement at Naval Consolidated Brig
Charleston. !
On 18 April 2019, appellant was transferred to Naval Consolidated Brig
Charleston to serve his term of confinement. On 7 July 2019, appellant submitted
his post-trial matters to the convening authority. Appellant did not allege any issues
with his confinement conditions in his submission to the convening authority. The
convening authority approved the findings and the adjudged sentence.
In September 2019, a prison guard at appellant’s facility, Lance Corporal
(LCPL) BF was investigated for inappropriate treatment of prisoners. During the
investigation, appellant was interviewed about his interactions with LCPL BF.
Appellant disclosed that LCPL BF was “unprofessional” in that he inquired about
appellant’s charges, marital status, and personal life. Appellant also explained that
LCPL BF shared information about a sexual experience he had with his boyfriend,
spoke sexually quite often, flirted with appellant, flashed a heart symbol at
appellant, shared his Snapchat handle with appellant so they could communicate, and
offered to “hang out” with appellant after he was released from confinement.
Appellant also stated that he was informed by other inmates that LCPL BF watched
him while he showered. Appellant disclosed that LCPL BF gave him unwarranted
positive reports and “bothered” him because LCPL BF always selected appellant to
be frisked after meals but stated that LCPL BF “hasn’t tried to get physical or asked
for favors.”
Lance Corporal BF provided a sworn statement during the investigation in
which he admitted to inappropriate conduct with appellant and two other inmates.
' A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of one specification of violation of a lawful general order,
three specifications of assault consummated by a battery, one specification of assault
upon a person in the execution of law enforcement duties, and one specification of
disorderly conduct, in violation of Articles 92, 128, and 134, UCMJ. Appellant was
found not guilty of one specification of aggravated assault and four specifications of
resisting apprehension, in violation of Articles 95 and 128, UCMJ. Appellant was
sentenced to be reduced to the grade of E-1, eleven months confinement, and to be
discharged from the service with a bad-conduct discharge.
LAVIOLET—ARMY 20190235
He admitted that he inquired about appellant’s charges, told appellant he had a
boyfriend, chatted with appellant “often” and was “buddies” with appellant, shared
his Snapchat handle with appellant, flashed “heart hands” at appellant, and offered
to hang out with appellant upon his release from confinement. Lance Corporal BF
explained that he randomly selected which inmates to frisk after meals but then
admitted that he selected appellant and another inmate “most of the time.”
However, LCPL BF denied that he ever intentionally looked at any inmate while
they showered,’ denied he selected appellant for frisks because he wanted to touch
him, and denied any physical contact with inmates other than frisk searches and
incidental contact at the door in the galley. Lance Corporal BF also stated that he
was unaware that he could not inquire about an inmate’s charges or that he could not
have personal contact with inmates after they were released from confinement.
In November 2019, appellant completed a declaration? in which he made
additional allegations against LCPL BF which he had not disclosed to the
investigator a few months earlier. Appellant shared that he did not have any
concerns or issues while serving confinement until LCPL BF became a guard in his
unit in early July 2019. Appellant alleged that during LCPL BF’s daily frisks he
would frisk appellant more “thoroughly” and “aggressively” than other guards,
grabbed appellant’s legs as though he was attempting to arouse appellant, and fully
placed his hand on appellant’s genitals as he was “cupping them.” On one occasion,
as LCPL BF was selecting inmates for frisks, he told appellant “you know it’s your
turn.” Appellant explained that he noticed LCPL BF watching him in the shower
almost every day, despite previously stating that others informed him LCPL BF
watched him in the shower, and that LCPL BF’s behavior made him feel “anxious,
uncomfortable, and unsafe.” Appellant also provided more details regarding sexual
conversations LCPL BF engaged in with appellant. He stated LCPL BF would hover
around his cell door and smile and wink at him. Appellant revealed that he felt
helpless and powerless since LCPL BF was a prison guard and he was an inmate.
Appellant stated he felt “unsafe, harassed, and abused” as a result of LCPL BF’s
actions. Appellant asserted that he did not disclose all of this information to the
investigator in September 2019 because he was unsure whether LCPL BF would
return to his unit as a guard and he feared retaliation. After LCPL BF was removed
from his position in September 2019 as a result of the investigation, he continued to
work at the confinement facility but had no further contact with prisoners.
* Lance Corporal BF admitted that he would look at inmates while showering with
his peripheral vision for safety purposes only. On one occasion, however, he
admitted to glancing quickly at an inmate, though not appellant, while that inmate
was showering.
3 Appellant submitted a declaration under 28 U.S.C. § 1746.
LAVIOLET—ARMY 20190235
Il. LAW AND DISCUSSION
A. No Requirement for a Post-trial Evidentiary Hearing
Appellant’s claim of cruel and unusual punishment arose after his post-trial
submissions to the convening authority. Thus, appellant’s claim is necessarily
supported by statements submitted to this court for consideration.* We considered
appellant’s submission consisting of his declaration and declarations from four other
prisoners who served confinement at Naval Consolidated Brig Charleston during the
same time period as LCPL BF’s inappropriate conduct, all dated in November 2019.
We also considered government submissions consisting of the sworn statements of
both appellant and LCPL BF provided in September 2019 during the investigation
into LCPL BF’s inappropriate treatment of prisoners.
Given that both appellant and the government submitted extra-record matters
for this court’s consideration in evaluating appellant’s claim of cruel and unusual
punishment, we must first address whether a post-trial evidentiary hearing is
required to resolve a factual dispute. See United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997). Our superior court has outlined five principles for this court in
determining whether it is necessary to remand a case for an evidentiary hearing. Id.
If any one of those five principles are satisfied, then this court may resolve the case
without an evidentiary hearing. Jd. Under the first principle outlined in Ginn, we
need not remand a case for fact-finding if “we can determine that the facts asserted,
even if true, would not entitle appellant to relief.” United States v. White, 54 M.J.
469, 471 (C.A.A.F. 2001) (citing Ginn, 47 M.J. at 248).
Appellant’s two statements assert that he was subjected to inappropriate
verbal and non-verbal communications and use of excessive force during frisk
searches from LCPL BF over a period of two months. Specifically, appellant asserts
that LCPL BF: (1) inquired about his personal life, sexual orientation, and charges;
(2) shared information with appellant about sexual experiences that he had with a
boyfriend; (3) flirted with appellant by smiling and winking at him and flashing
heart symbols; (4) provided appellant his Snapchat handle and suggested they hang
out after appellant’s release from confinement; (5) watched appellant while he
showered; (6) gave appellant special privileges on several occasions including
positive spot reports; and (7) singled appellant out for frisk searches more frequently
than others by selecting appellant for searches after every meal and frisked appellant
* Additional matters may be considered by a court of criminal appeals outside the
record of trial in conducting its Article 66, UCMJ, review for claims of a violation
of the Eighth Amendment and Article 55, UCMJ. United States v. Jessie, 79 M.J.
437 (C.A.A.F. 2020).
LAVIOLET—ARMY 20190235
more aggressively by grabbing appellant’s legs as though he was attempting to
arouse appellant and fully placed his hand on appellant’s genitals as he was
“cupping them.” Lance Corporal BF’s sworn statement confirmed all of appellant’s
allegations with the exception of giving appellant special privileges like
unwarranted spot reports, watching appellant while he showered, and touching any
prisoner in any way other than required by virtue of his official duties.
The material factual dispute between appellant’s submission to this court and
the government’s submission is whether LCPL BF provided appellant special
privileges such as unwarranted positive spot reports, watched appellant while he
showered, and whether LCPL BF unnecessarily “cupped” appellant’s genitals during
frisk searches. Assuming, without deciding, LCPL BF’s actions were as appellant
claimed, we conclude that appellant has not sustained his burden of establishing
cruel and unusual punishment and therefore, we need not remand this case for a fact-
finding hearing.
B. Exhaustion of Administrative Remedies
Before being entitled to relief for a claim of cruel and unusual punishment,
our superior court established that “‘[a] prisoner must seek administrative relief
prior to invoking judicial intervention’ to redress concerns regarding post-trial
confinement conditions.” United States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007)
(quoting White, 54 M.J. at 472); see also United States v. Bright, 63 M.J. 683, 686
(Army Ct. Crim. App. 2006) (en banc). This requirement applies whether the claim
involves denial of medical care, conditions of confinement, or use of excessive
force. White, 57 M.J. at 472 (analyzing a claim of deprivation of substance abuse
treatment, intimidation, threats, and extended periods of verbal abuse); United States
v. Erby, 54 M.J. 476 (C.A.A.F. 2001) (analyzing claims of verbal abuse and
ransacking of personal property).
As we have previously recognized, exhaustion of administrative remedies
“promotes the proper treatment of prisoners because it encourages the notification of
officials if guards mishandle prisoners,” allows for the resolution of grievances at
the lowest level, and “ensure[s] that an adequate record has been developed with
respect to the procedures for considering a prisoner grievance and applicable
standards.” Bright, 63 M.J. at 686—87 (citation omitted). “Absent some unusual or
egregious circumstance,” an appellant must exhaust the grievance system at the
confinement facility. Wise, 64 M.J. at 469. Whether an appellant has exhausted
administrative remedies is reviewed de novo and is a mixed question of law and fact.
Id. at 471.
Appellant has neither furnished this court with evidence that he exhausted his
administrative remedies prior to invoking judicial intervention, nor has he alleged
that he experienced “unusual or egregious circumstances” such that he could not
LAVIOLET—ARMY 20190235
avail himself of administrative relief within the confinement facility. While the
government provided this court with a sworn statement that appellant provided
during an investigation into LCPL BF’s treatment of prisoners, that investigation
arose based upon an allegation made by another inmate, and not based upon any
complaint made by appellant. Once another inmate filed a complaint against LCPL
BF, he was removed from his position as a guard and separated from prisoners. In
his November 2019 declaration, appellant asserts that he did not provide a full
account of LCPL BF’s mistreatment of him because he was unsure whether LCPL BF
would return to his housing unit and feared reprisal. Appellant did not provide
context as to whether this declaration was provided to the confinement facility or
investigator from the September investigation or rather, prepared specifically for
this court. We also note that any claimed fear of reprisal on appellant’s part, even if
understandable given his situation, does not by itself constitute the type of “unusual
or egregious circumstances” warranting our acceptance of his failure to exhaust
administrative remedies. Because appellant has failed to establish that he exhausted
his administrative remedies nor has he provided to this court any “unusual or
egregious circumstances” justifying such a failure, appellant is entitled to no relief
under the Eighth Amendment or Article 55, UCMJ.
C. Cruel and Unusual Punishment
While appellant’s failure to exhaust administrative remedies alone is a
sufficient basis for denying relief under either the Eighth Amendment or Article 55,
UCMBJ, we also find that appellant’s mistreatment by LCPL BF does not rise to the
level of cruel and unusual punishment.
Whether appellant suffered cruel and unusual punishment at the hands ofa
prison guard in violation of the Eighth Amendment or Article 55, UCMJ, isa
question we review de novo. White, 54 M.J. at 471.
The Eighth Amendment prohibits “cruel and unusual punishment.” U.S.
Const. amend. VHI. Article 55, UCMJ, prohibits various specific punishments “or
any other cruel or unusual punishment.” UCMJ art. 55. The two types of
punishments prohibited by the Eighth Amendment are those which are “incompatible
with the evolving standards of decency that mark the progress of a maturing society”
or punishments which “involve the unnecessary and wanton infliction of pain.”
Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). In the context of confinement
conditions, the Supreme Court observed that the Eighth Amendment “does not
mandate comfortable prisons, but neither does it permit inhumane ones.” United
States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (quoting Farmer v. Brennan, 511
U.S. 825, 832 (1994)).
When claiming that a prison guard’s actions violated the Eighth Amendment,
appellant bears the burden of satisfying both an objective and subjective test by
LAVIOLET—ARMY 20190235
establishing: “(1) an objectively, sufficiently serious act or omission that resulted in
the denial of necessities;” and “(2) a culpable state of mind on the part of prison
officials amounting to deliberate indifference to [appellant’s] health and safety.”
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (citing Farmer, 511 U.S.
at 834). Appellant must also demonstrate that the “misconduct by prison officials
produced injury accompanied by physical or psychological pain.” United States v.
Brennan, 58 M.J. 351, 354 (C.A.A.F. 2003) (citations omitted).
1. Appellant fails to establish that LCPL BF’s actions are sufficiently
Serious.
We find that appellant failed to establish a sufficiently serious act or omission
rising to the level of cruel and unusual punishment. Lance Corporal BF subjected
appellant to sexually charged verbal and non-verbal communications by discussing
his own sexual experiences, inquiring about appellant’s sexual orientation, and
generally flirting with appellant by smiling, winking and flashing a heart symbol at
appellant, and requesting to spend time with appellant upon his release from
confinement. While these types of communications and actions from a prison guard
are inappropriate and rise to the level of sexual harassment, they are not sufficiently
serious to constitute cruel and unusual punishment akin to the actions of the prison
official in United States v. Brennan. In Brennan, the prison official mistreated the
prisoner every day over a two-month period. 58 M.J. at 354. On one occasion, he
used graphic language to brutally threaten inmate Brennan with anal sodomy; on
another occasion, he isolated inmate Brennan in a locked room, trapped her, and
physically assaulted her. Jd. While we condemn LCPL BF’s communications to
appellant, they are significantly less serious than the actions in Brennan such that
they do not rise to the level of cruel and unusual punishment contemplated by the
Eighth Amendment and Article 55, UCMJ. See also United States v. Sanchez, 53
M.J. 393, 395 (C.A.A.F. 2000) (noting that appellant was subjected to repeated
verbal sexual harassment by military guards and other inmates, including
“inappropriate sexual” comments and “inappropriate sexual questions,” but not
finding a violation of the Eighth Amendment or Article 55, UCMJ).
We also find that LCPL BF watching appellant while he showered and using
excessive force during frisk searches resulting in the “cupping” of appellant’s
genitals are not sufficiently serious as to constitute cruel and unusual punishment.
We agree with the government’s argument that there is a legitimate penological
interest in safeguarding prisoners that allows for observing prisoners in the shower
and conducting frisk searches after meals, the latter to check for items or contraband
that could be used as weapons. Of course there are limits to how observations and
searches can be lawfully conducted. See United States v. Kinsch, 54 M.J. 641, 648
(Army Ct. Crim. App. 2000) (“While prison guards may lawfully frisk and search
inmates to insure the safety of the institution and its personnel, they may not do so
LAVIOLET—ARMY 20190235
in a manner calculated to intentionally cause unnecessary physical and mental
pain.”).
Accepting appellant’s version of events as the truth, and assuming that LCPL
BF mistreated appellant by unnecessarily watching appellant while he showered and
by using excessive force during lawful frisk searches by “cupping” appellant’s
genitals, we conclude in light of other cases that these actions are not so serious as
to qualify as cruel and unusual punishment. In Kinsch, we found a constitutional
and statutory violation based on the prison guard “maliciously and sadistically”
striking the appellant’s testicles several times during frisk searches. 54 M.J. at 648.
We reached a similar conclusion in United States v. Ellis based on the prison
official’s “repeated and unwarranted ‘karate chops’ to [the appellant’s] testicles”
during frisk searches. ARMY 9900621, 2001 CCA LEXIS 434, *2—-5 (Army Ct.
Crim. App. 3 Jan. 2001) (mem. op.). Additionally, in United States v. Gronewald,
we found a violation based on the prison official striking appellant’s testicles “as
many as twenty-five times over eight months.” ARMY 9900254, 2001 CCA LEXIS
446, *8 (Army Ct. Crim. App. 19 A.K. Marsh. 2001) (mem. op.). Here, while LCPL BF’s
actions of watching appellant shower and “cupping” his genitals during frisk
searches are unacceptable and demeaning, we do not find them to be as serious or
abusive as the actions in the above-referenced cases. We note that while appellant
stated these actions made him feel anxious, abused, and harassed, he alleges no
particularized physical pain or suffering and presents no “clinically documented
psychological trauma.” Sanchez, 53 M.J. at 396. Therefore, we find that appellant
has failed to satisfy the objective prerequisite for a finding of an Eighth Amendment
or Article 55, UCMJ, claim of cruel and unusual punishment.
2. Appellant fails to establish that LCPL BF acted with a culpable state of
mind.
Appellant also fails on the subjective prong. We find that appellant has not
established that LCPL BF possessed a culpable state of mind with a deliberate
indifference to appellant’s health and safety. Under this standard, the prison guards
and officials “must be consciously aware of the risk or danger to the inmate and
choose to ignore it; they must have been aware of the harm or risk of harm caused
appellant, and continued anyway.” Sanchez, 53 M.J. at 396. Here, as in Sanchez,
there is no evidence that appellant ever complained directly to LCPL BF or prison
officials prior to LCPL BF’s removal from his position. Absent such a complaint by
appellant, we are unable to conclude that LCPL BF was made aware of the risk of
harm to appellant’s health and safety and chose to ignore that risk. The same
conclusion applies to prison officials with oversight over both LCPL BF and the
prison at large. Prison officials can neither ignore nor fix problems of which they
are not aware.
LAVIOLET—ARMY 20190235
Additionally, we do not find that LCPL BF’s actions in this case are the type
that, by their nature, reflect a culpable mental state. Cf Brennan, 58 M.J. at 354
(finding the guard’s culpable mental state was “clearly established by his conduct,
which [was] wholly unrelated to any legitimate penological or disciplinary purpose”)
(emphasis added). The unwanted personal conversations, sexually based
commentary, winking and “flirting” to which appellant was subjected does not
demonstrate a deliberate indifference to appellant’s health and safety. While LCPL
BF essentially sexually harassed appellant, he did not threaten appellant with non-
consensual sexual acts, demand sexual acts in exchange for privileges, or threaten to
harm appellant as in Brennan. Lance Corporal BF admitted to flirting with appellant
but asserted he was unaware he could not have personal conversations with appellant
or hang out with inmates upon their release from confinement. Lance Corporal BF’s
sexual harassment of appellant demonstrates his desire for a sexual and personal
relationship with appellant upon his release, but these actions do not demonstrate
that he possessed deliberate indifference to appellant’s health and safety.
Further, LCPL BF’s watching appellant while he showered and “cupping” of
his genitals during frisk searches does not demonstrate that LCPL BF subjectively
intended to maliciously or sadistically harm appellant through the use of wanton or
unnecessary force, as found in the cases discussed above. Nor are the acts of
watching inmates in the shower or touching their genitals during frisk searches
“wholly unrelated” from any legitimate purpose. Brennan, 58 M.J. at 354. In
conclusion, the actions of LCPL BF in and of themselves do not demonstrate a
culpable state of mind, and there are also no comments by LCPL BF coupled with
the excessive frisking revealing a culpable state of mind.
While appellant endured inexcusable treatment by LCPL BF during his
confinement, it did not rise to the level of cruel and unusual punishment. We
therefore hold that appellant has failed to establish conduct amounting to cruel and
unusual punishment warranting relief by this court.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Senior Judge ALDYKIEWICZ and Judge SALUSSOLIA concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
ALDYKIEWICZ, SALUSSOLIA, and WALKER
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class DONALD P. LAVIOLET
United States Army, Appellant
ARMY 20190235
IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,
GENERAL COURT-MARTIAL ORDER NUMBER 11, HEADQUARTERS,
UNITED STATES ARMY MANEUVER CENTER OF EXCELLENCE, 1 KARKER
STREET, BUILDING 4, FORT BENNING GEORGIA 31905-4500, dated 23 July
2019,
IS CORRECTED AS FOLLOWS:
BY adding at the top of page one, under Firearm
Prohibitions Apply, the words and figures “Misdemeanor
Crime of Domestic Violence. 18 U.S.C. 922(g)(9).”
DATE: 4 September 2020
FOR THE COURT:
ae
ALCOLM H. SQUIRES, JR.
Clerk of Court