By Tom Eldred, Delaware State News
DOVER - Although Gov. Ruth Ann Minner insisted her comments regarding the July 12 rape of a prison counselor were taken out of context, court papers filed by the state Monday seeking to quash the counselor's lawsuit against the governor had a similar ring.
After counselor Cassandra Arnold was abducted and raped at the Delaware Correctional Center near Smyrna, Gov. Minner was quoted in the Delaware State News as saying, "In prisons, you almost expect these things to happen.''
She said later that she was talking about training issues and whether the state police should have been called in to deal with the hostage-taking situation.
The incident occurred when serial rapist Scott A. Miller pulled a homemade knife, or "shank," and abducted Ms. Arnold after attending a stress management session with other inmates.
Holding the shank to her throat, Miller pulled Ms. Arnold into an administrative office, barricaded the door and kept rescuers at bay for nearly seven hours until he was shot and killed by a correctional officer.
Miller was serving 699 years for multiple assaults against women. He raped Ms. Arnold and tried to kill her moments before he was shot.
Ms. Arnold, 27, filed a civil rights lawsuit in Federal Court against Gov. Minner, Correction Commissioner Stanley W. Taylor and 11 other prison officials after the state turned down her $3.9 million settlement request.
The lawsuit claims lax security and "chocked-open'' doors, inadequate staffing, poor workforce morale and supervisory indifference contributed directly to her ordeal.
In his motion to dismiss Ms. Arnold's lawsuit, Deputy Attorney General Richard W. Hubbard stressed repeatedly that she knew the job was dangerous when she was hired, that she could be injured and that she willingly accepted those conditions.
In essence, he said the lawsuit should be thrown out because Ms. Arnold knew what she was getting into. He said Ms. Arnold's theory of a "state-created danger'' fails in context and is not sufficient to hold Gov. Minner and the other defendants liable.
Ms. Arnold said Thursday that she was "insulted' by the state's attempt to scuttle her lawsuit.
'Inherent' risks
"Ms. Arnold's job entailed daily contact with maximum security and high medium security inmates,'' Mr. Hubbard said in his motion to the court.
"She was, on a daily basis, in personal contact with murderers, rapists, kidnappers, aggravated assaulters, and other felons of the most violent sort. That is why she received the highest level of hazardous duty pay.''
He said prison workforces commonly include women, including treatment counselors and other professionals mandated to conduct rehabilitation programs for inmates.
"Every prisoner in medium- and maximum-security prison has engaged in some extremely serious offense or multiple offenses,'' Mr. Hubbard said.
"The risks associated with female counselors coming into contact with such prisoners are high and inherent in the job. The risk of serious harm is inherent in the occupation of corrections counselors and corrections officers, both male and female."
Mr. Hubbard cited statistics for 2002 that were released by the Criminal Justice Institute showing 16,435 inmate assaults against correctional staff nationwide for the prior year.
"Ms. Arnold accepted these dangers as part of her job,'' he said. "She did not threaten to leave because of the dangers, and she was not cajoled into staying on the basis that the environment would be made safe.''
'A chill down my spine'
Herbert G. Feuerhake, one of Ms. Arnold's lawyers, said Mr. Hubbard's arguments don't hold water.
He said that if he were a correctional officer, some of the language in Mr. Hubbard's motion to dismiss would "send a chill down my spine.''
"Basically, they're saying that once you accept a job with hazardous duty pay, the state has the right to completely disregard the Constitution," he said.
"They're saying they can run prisons with just as dangerous conditions as they wish. Understanding the state's theory, if I were a correctional officer, it would end a chill down my spine.''
Mr. Feuerhake said Ms. Arnold is disappointed the state has taken such a tough stand against her lawsuit.
"They ought to be sitting down to resolve this with us,'' he said. "She would like to get on with her recovery and her life. But if they want to fight this, we're willing to fight.''
No 'reasonable safety'?
Mr. Hubbard said the Department of Correction hired Ms. Arnold as a counselor on June 18, 2001.
When she graduated from training on Nov. 16, 2001, he said she began collecting hazardous duty pay, described in the state's Merit Rules for:
"Uncontrollable circumstances that involve an unusual risk of serious physical injury, impairment to health or death resulting from accidental, negligent or intentional causes.''
According to Mr. Hubbard, Ms. Arnold received the pay "because she agreed to be exposed more than 50 percent of her work day to circumstances involving an unusual risk of serious physical injury, impairment to health, or death, where precautions were either impractical or insufficient to assure reasonable safety.''
He said the judge should dismiss the lawsuit because "no federal circuit court has recognized this theory in the context of a law enforcement officer harmed by an inherent and commonly known risk from criminal conduct.''
Furthermore, Mr. Hubbard said there is no precedent in the courts "for holding public officials liable under the state-created-danger theory for injuries to law enforcement officers or public employees who work in an inherently dangerous environment, are aware of the dangers, and voluntarily choose to continue working in that environment.''
'Incredibly insulting'
Ms. Arnold said she found the language in Mr. Hubbard's motion "insulting."
"I'm not surprised with the way they are going to battle us with this issue,'' she said Thursday.
"But I am insulted by them repeating the fact that (abduction and rape) is expected to happen in prisons.''
Ms. Arnold recalled the humiliation she said she felt when she was advised of Gov. Minner's comments.
"It makes me feel devalued,'' she said. "I'm angry they are trying to dismiss this case and trying not to put it forward. It's incredibly insulting.''
Mr. Hubbard said Gov. Minner and Mr. Taylor should not even be defendants in the lawsuit.
"There has never been a case in any court in the history of the United States where a state governor has been found liable for an attack by an inmate on a corrections employee,'' he said.
"Gov. Minner's alleged culpability could only be that she did not do enough to fund the (DOC). Certainly the governor could not reasonably be expected to have reviewed Scott Miller's classification records or to have inspected the status of security doors (at DCC).
"Similarly, Commissioner Taylor could not be expected to be personally involved ... Given the nature of the (prison) population, there is always the potential for an assault on a staff member within the system.
"From the specific factual allegations in (Ms. Arnold's) complaint, there is no reason to believe that Stan Taylor knew anything about Scott Miller, Cassandra Arnold, the shank, or the status of specific doors.''
Mr. Hubbard said the complaint fails to show the defendants willfully disregarded the possibility that Miller could attack Ms. Arnold.
Furthermore, he said with Miller's "evil intent, harm (to Ms. Arnold or others) was realistically not preventable - except in hindsight.''
Senior writer Tom Eldred can be reached at 741-8212 or teldred@newszap.com.
Reprinted with permission from newszap.com
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