Description
Question 1: You were required to read two books for this course. For each book answer the following questions.
1. List three types of abuse committed.
2. What do you think led to the abuse beginning?
3. Where did the Criminal Justice System fail the child?
Finally, what three traits/characteristics did both families have in common? (This could be the victim, parents, other family members.
Note: Your paper should be a minimum of 4 pages, double spaced, 12 point font. If you include a cover page and your reference page, it is not part of your required 4 pages.
References:
Child Called ‘It’
Author: Pelzer
Edition: N/A
ISBN: 9781558743663
Copyright Year: 1995
Publisher: Health Communications, Incorporated
Daddy’s Curse: A Sex Trafficking True Story of a 8-Year Old Girl (Volume 1)
Author: Dahl
Edition: N/A
ISBN: 9789163970320
Publisher: CreateSpace
Unformatted Attachment Preview
Civil Action No. 2:02cv320
United States District Court, M.D. Alabama, Northern Division
K.M. v. Alabama Department of Youth Services
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
Decided Mar 9, 2005
Civil Action Nos. 2:02cv320-T, 2:02cv321-T,
2:02cv322-T, 2:02cv323-T.
Jack Allen Blumenfeld, Dothan, AL, Sharon E.
Ficquette, Alabama Department of Human
Resources, Montgomery, AL, Sara Thomason
Baker, District Attorney’s Office, Cullman, AL,
David W. Langston, Harris, Caddell Shanks, P.C.,
Decatur, AL, David Wyatt Huddleston, Alabama
Department of Mental Health Mental Retardation,
Tuscaloosa, AL, Edward Hamilton Wilson, Jr.,
Ball Ball Matthews Novak PA, Montgomery, AL,
Bret M. Gray, Griffin Associates, Hoover, AL,
William E. Shinn, Jr., Harris, Caddell Shanks,
P.C., Decatur, AL, Kenny Mallow Williamson,
Robert Marc Givhan, Johnston, Barton, Proctor
Powell, LLP, Birmingham, AL, for Movant.
1254 March 9, 2005. *1254
Michael J. Crow, Beasley Allen Crown Methvin
Portis Miles PC, Montgomery, AL, for
Plaintiff/Consol Plaintiffs.
Robert Dean Drummond, Jr., Fairhope, AL, for
Consol Plaintiffs.
Andrew W. Christman, Steven Keith Herndon,
Gidiere, Hinton Herndon, Montgomery, AL, for
Intervenor Plaintiff.
Christina Harris Jackson, Christopher Kyle
Whitehead, Henry Lewis Gillis, Kenneth Lamar
Thomas, Monet McCorvey Gaines, Ramadanah
Maryum Salaam, Thomas Means Gillis Seay PC,
Montgomery, AL, John Wesley Adams, Jr.,
Kennedy, Bell Adams, Mobile, AL, Tamica
Clemons Richard, Bentonville, AR, William
James Samford, II, Alabama Department of Youth
Services, Mt. Meigs, AL, Frederic Allen Bolling,
1256 James L. *1256 Richey, Valerie LaShawn Acoff,
Thomas Means Gillis Seay PC, Andrew Clay
Allen, Peter Harrington Burke, William Todd
Harvey, Whatley Drake, LLC, Vivian Vines
Campbell, Emond Vines Gorham Waldrep PC,
Stephen Cochran Wallace, William Monroe
Dawson, Jr., Birmingham, AL, for Defendants.
Adrian Carrie Payne, Hand Arendall, LLC, James
M. Wooten, Mark Thomas Waggoner, Roger L.
Bates, Hand Arendall, LLC, Birmingham, AL,
Allen R. Stoner, Allen R. Stoner, PC, Decatur, AL,
for Consol Defendant.
1255 *1255
ORDER
MYRON THOMPSON, District Judge
These consolidated cases are now before the court
on defendant Peter Aseme’s motion for summary
judgment filed pursuant to Rule 56(c) of the
Federal Rules of Civil Procedure, which provides
that summary judgment is appropriate where
“there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment
as a matter of law.”
3
For the reasons that follow, the court concludes
that the summary-judgment motion should be
denied. *3
I. Introduction
1
K.M. v. Alabama Department of Youth Services
Plaintiffs K.M., C.B., T.A.B., and K.T. bring these
consolidated cases against the following
defendants: the Alabama Department of Youth
Services (DYS), DYS Executive Director Walter
Wood, former DYS Chalkville Campus
Superintendent James Caldwell, and former DYS
employees Aseme and John Zeigler. Plaintiffs are
former juvenile detainees who claim that, while
they were in the custody of DYS and housed at
Chalkville, they were sexually and physically
assaulted and harassed by Aseme and Zeigler.
Plaintiffs claim that not only are Aseme and
Zeigler liable to them, but that Wood, Caldwell,
and DYS are responsible for allowing the assaults
and harassment to take place.
4
Aseme was a youth services aid/child care worker
at Chalkville during the dates at issue. His
responsibilities included “observ[ing] students so
that visual contact is maintained at all times
through head checks and cottage counts,”
monitoring and documenting consumption of
medicine, restraining students when necessary,
searching students and their belongings, and
administering first aid.1
1 DYS’s and Wood’s evidentiary submission
in
services
of
motion
for
summary
aide/child
care
worker/shift
supervisor job description).
6
T.A.B. is the only plaintiff in this case to state a
claim against Aseme. She alleges that, while she
was at Chalkville, between December 1999 and
May 2001, she was sexually assaulted by Aseme.
According to T.A.B., at some point between
January and May 2001, Aseme approached her
while she was alone in the laundry room and
touched her vagina. T.A.B. did not tell anyone
about the abuse *6 by Aseme until after DYS
launched an official investigation into the matter.
III. Discussion of Claims
Federal Claim: As stated, T.A.B. alleges that
Aseme sexually assaulted her, that is, that while
she was in the laundry room, he allegedly touched
her vagina without her consent. T.A.B. claims that,
in doing so, Aseme violated her Eighth
Amendment right to be free from cruel-andunusual punishment and her Fourteenth
Amendment right to substantive due process, as
the rights are enforced through § 1983. In his
defense, Aseme contends: (1) T.A.B. has not
alleged that he violated any right protected by the
Constitution; (2) T.A.B. has not produced
sufficient evidence to survive summary judgment2
II. Background
The evidence — presented in the light most
favorable to plaintiffs because they are the
nonmoving parties and because these cases are
before the court on a summary-judgment
motion,Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
1356 (1986) — is as follows.
Chalkville is a juvenile detention center for young
women between the ages of 12 and 18. These
cases arise in the context of public, widespread
allegations of sexual abuse and harassment by
1257 employees at the *1257 Chalkville campus against
detainees. As stated, the four plaintiffs were
juvenile detainees, in the custody of DYS and
housed at Chalkville, at the time of the alleged
assaults.
support
judgment (Doc. no. 162), exhibit 44 (youth
Plaintiffs base their legal claims against Aseme on
the Fourteenth Amendment right to substantive
due process and the Eighth Amendment right to be
free from cruel-and-unusual punishment, both
rights as enforced through *4 42 U.S.C.A. § 1983,
and on the state-law torts of negligence,
wantonness, assault and battery, and outrage.
The jurisdiction of the court is properly invoked
pursuant to 28 U.S.C.A. §§ 1331 (federal
question), 1343 (civil rights), 1367 (supplemental
jurisdiction).
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
7
*7
2 Aseme originally contended that T.A.B.’s
claim was time-barred. In his reply brief,
however, he notes that, because T.A.B. was
a minor at the age of the alleged acts, her
2
K.M. v. Alabama Department of Youth Services
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
claim was tolled until she reached age 19,
it has had no difficulty finding the Eighth
Amendment inapplicable.” Ingraham v. Wright,
430 U.S. 651, 667-668, 97 S.Ct. 1401, 1410
(1977). The Supreme Court explained why the
Eighth Amendment does not apply to
schoolchildren: *9
and “concedes the inaccuracy” of his
argument that the claim was time-barred.
Defendant Aseme’s reply brief in support
of motion for summary judgment (Doc. no.
229), at 7.
9
There is clearly a right, under the Fourteenth
Amendment, to bodily integrity. “There is a right
to be free from sexually motivated assaults. As
several courts in the Eleventh Circuit have
recognized, substantive due process under the
Fourteenth Amendment includes a right to bodily
integrity.” Thomas v. City of Clanton, 285
F.Supp.2d 1275, 1280 (M.D. Ala. 2003)
(Thompson, J.) (citing Romero v. City of Clanton,
220 F.Supp.2d 1313, 1316 (M.D. Ala. 2002)
(Albritton, C.J.); Johnson v. Cannon, 947 F.Supp.
1567, 1572-73 (M.D. Fla. 1996) (Kovachevich,
C.J.);Battista v. Cannon, 934 F.Supp. 400, 404
(M.D. Fla. 1996) (Kovachevich, C.J.)).
Substantive-due-process analysis would not be
appropriate if the claim can be addressed through
enforcement of T.A.B.’s Eighth Amendment right
to be free from cruel-and-unusual punishment.
This is because, “if a constitutional claim is
covered by a specific constitutional provision,
8
such as the . . . Eighth *8 Amendment, the claim
must be analyzed under the standard appropriate
to that specific provision, not under the rubric of
substantive due process.” United States v. Lanier,
520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 1228 n. 7
(1997). Under Lanier, this court must determine if
the interest T.A.B. alleges was impaired is
protected by the Eighth Amendment or the
Fourteenth Amendment. If more than one
1258 constitutional provisions protects the right *1258 at
issue, the court must apply the analysis for the
more specific constitutional provision, which is, in
this case, the Eighth Amendment.
The Eighth Amendment applies in only the
criminal context. Thus, “[i]n the few cases where
the [Supreme] Court has had occasion to confront
claims that impositions outside the criminal
process constituted cruel and unusual punishment,
“The prisoner and the schoolchild stand in
wholly different circumstances, separated
by the harsh facts of criminal conviction
and
incarceration.
The
prisoner’s
conviction entitles the State to classify him
as a `criminal,’ and . . . [p]rison brutality,
as the Court of Appeals observed in this
case, is `part of the total punishment to
which the individual is being subjected for
his crime and, as such, is a proper subject
for Eighth Amendment scrutiny.’ 525 F.2d.
at 915. Even so, the protection afforded by
the Eighth Amendment is limited. After
incarceration, only the `”unnecessary and
wanton infliction of pain,”‘ Estelle v.
Gamble, 429 U.S. at 103, 97 S.Ct. at 291,
quoting Gregg v. Georgia, 428 U.S. at 173,
96 S.Ct. at 2925, constitutes cruel and
unusual punishment forbidden by the
Eighth Amendment.”
Ingraham, 430 U.S. at 669-670, 97 S.Ct. at 1411
(1977).
10
Determining if the Eighth Amendment applies to
juvenile detainees is complicated; it essentially
poses the question of whether a juvenile detainee
is more like a convicted criminal or more like a
schoolchild. While a juvenile detention facility is
partially a correctional institution, it is also a
school; it is meant to discipline as opposed to
punish; its facilities are also *10 intended to be
rehabilitative and educational. The Alabama
Juvenile Justice Act, which authorizes the
detention of juveniles, is intended to “facilitate the
care, protection, and discipline of children who
come within the jurisdiction of the juvenile court,
3
K.M. v. Alabama Department of Youth Services
while acknowledging the responsibility of the
juvenile court to preserve the public peace and
security.” 1975 Ala. Code § 12-15-1.1.
(quoting Ingraham v. Wright, 525 F.2d 909, 915
(5th Cir. 1976)). It is therefore proper to analyze a
juvenile detainee’s right to bodily integrity under
the due-process clause of the Fourteenth
Amendment.
The Alabama Code further clarifies the distinction
between juvenile detention and criminal
adjudication: an adjudication of delinquency “shall
not be considered a conviction or impose any civil
disabilities ordinarily resulting from a conviction
of a crime or operate to disqualify the child in any
civil service application or appointment.” 1975
Ala. Code § 12-15-72.
11
The case law in the Eleventh Circuit supports the
conclusion that juvenile detainees’ rights should be
analyzed under the Fourteenth, not the Eighth,
Amendment. For example, in a case addressing
the rights of pretrial juvenile detainees, the
Eleventh Circuit Court of Appeals *11 reasoned
that “[a]kin to the interests of school children to be
free of excessive corporal punishment, the
conditions of detainee incarceration affect liberty
interests protected by the fourteenth amendment
rather than the eighth.” H.C. by Hewett v. Jarrard,
786 F.2d 1080, 1085 (11th Cir. 1986).
Therefore, although the law in this area is not
entirely settled, see Nelson v. Heyne 491 F.2d 352,
354 (7th Cir. 1974) (noting that a school for
juvenile detainees “is a correctional, as well as an
academic, institution” and applying an Eighth
Amendment
analysis
to
determine
the
constitutionality of supervised beatings of
students), it appears that, at least in the Eleventh
Circuit, and under Alabama’s definition of a
1259 juvenile delinquent, juvenile *1259 detainees’
rights should not be addressed under the Eighth
Amendment. Instead, juvenile detainees are
afforded more rights than simply protection from
“wanton and unnecessary pain,” which is the
standard under which their claims would be
analyzed if the Eighth Amendment applied. As the
12 Supreme Court has noted, there *12 is no reason to
subject juveniles to the “total punishment” to
which convicted criminals are subjected.
Ingraham, 430 U.S. at 669-670, 97 S.Ct. at 1411
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
In any event, the specific conduct which T.A.B.
alleges took place would clearly violate her rights
under the Eighth Amendment as well; that is, the
sexual assault of a prisoner by a guard surely
meets the “wanton and unnecessary pain”
standard, for there is absolutely no possibility that
Aseme’s alleged acts served a legitimate purpose.
Therefore, under both the Eighth Amendment and
the Fourteenth Amendment, Aseme’s contention
that his alleged acts do not violate a constitutional
right is without merit.
13
Finally, T.A.B. has presented sufficient evidence
for her claim to survive summary judgment.
T.A.B. testified in her deposition that Aseme
assaulted her. Furthermore, *13 one of the reasons
Aseme was fired by DYS was because, after an
evidentiary hearing, DYS Executive Director
Wood found that the allegation that “on one
occasion in the laundry room you put your finger
or fingers in her [T.A.B.’s] vagina” was
“founded.”3 T.A.B. has stated a specific set of
facts and put forth evidence from which a
reasonable jury could conclude that Aseme did, in
fact, sexually assault her. T.A.B.’s federal-law
claim against Aseme survives summary judgment.
3 Plaintiffs’ Response to Defendants’ Motion,
exhibit 15 (Wood letter to Aseme).
Outrage Claim: The court turns next to T.A.B.’s
claim of outrage against Aseme.4 The tort of
14
outrage has the following elements: (1) the
defendant must have intended to inflict emotional
distress, or should have known that his or her acts
would result in emotional distress; (2) the act must
be extreme and outrageous; (3) the act must have
caused plaintiff’s distress; and (4) plaintiff’s *14
emotional distress must have been so severe that
4
K.M. v. Alabama Department of Youth Services
no reasonable person could be expected to endure
it. Harrelson v. R.J., 882 So.2d. 317, 322 (Ala.
2003).
4 An outrage claim is essentially equivalent
to what many states refer to as “intentional
16
infliction of emotional distress.”
Other courts have refused to allow a claim of
outrage when the facts fit into a more traditional
common-law tort regime, such as assault and
battery. These courts reason that the tort of outrage
was intended to be a “gap filler” in tort law,
allowing for plaintiffs to recover only when they
were unable to do so under traditional commonlaw actions. As one court explained: *16
“Taking into account the history of the tort
of outrage, and its reason for being as a
`gap-filler’ providing redress for extreme
emotional distress in those instances in
which the traditional common law actions
did not, we believe . . . that where an
actor’s conduct amounts to the commission
of one of the traditional torts such as
assault, battery, or negligence for which
recovery for emotional distress is allowed,
and the conduct was not intended only to
cause extreme emotional distress in the
victim, the tort of outrage will not lie.
Recovery for emotional distress in those
instances must be had under the
appropriate traditional common law action.
The tort of outrage was intended to
supplement the existing forms of recovery,
not swallow them up.”
T.A.B. contends that Aseme’s alleged conduct
meets this test because (1) Aseme should have
known that sexually assaulting her would result in
emotional distress; (2) the act of a DYS employee
inserting his finger into a detainee’s vagina,
particularly when the detainee is a minor and the
employee is responsible for supervising her, is
extreme and outrageous; (3) as a result of Aseme’s
acts, T.A.B. suffered emotional trauma; and (4) the
emotional trauma was so severe that she had to be
transferred to a hospital. Aseme, in response,
asserts that, even if he did commit the act in
question, such an act is not “extreme and
outrageous” and any distress T.A.B. suffered was
not caused by the abuse.
The first issue this court must address is whether
the act of which T.A.B. accuses Aseme is the type
of act for which a plaintiff can recover under an
action for outrage. Some courts have recognized a
1260 claim of outrage in situations of intentional *1260
sexual abuse or rape. E.g., Mindt v. Shavers, 337
N.W.2d 97 (Nev. 1983) (where plaintiff had
alleged severe emotional trauma as a result of
rape, she could proceed under the theory of
intentional infliction of emotional distress, even
though her claim could have also been brought as
an assault and battery claim); Croom v. Younts,
913 S.W.2d (Ark. 1996) (recovery for intentional
infliction of emotional distress allowed where 51year-old defendant gave 15-year-old cousin
alcohol and drugs, had sexual relations with her,
and pursued the relationship that he knew was
emotionally traumatic to her and caused her to
attempt suicide).
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
Rigazio v. Archdiocese of Louisville, 853 S.W.2d
295, 298-99 (Ky. 1993).
17
Alabama courts do recognize the tort of outrage
for sexual harassment or assault cases, but only in
particularly egregious cases. Compare Harrelson
v. R.J., 882 So.2d. 317 (Ala. 2003) (allowing for
recovery for tort of outrage in case where minor
was sexually assaulted by her friend’s step-father),
with Turner v. Hayes, 719 So.2d 1184, 1187
(Ala.Civ.App. 1997) (woman *17 who claimed her
supervisor sexually harassed her by touching her
under the armpits, near her breasts, on her leg,
trying to look up her skirt, making sexual
innuendo, and touching his genital area in her
presence, had not stated facts so “flagrantly
egregious” as to state a claim for outrage), rev’d on
other grounds Ex parte Atmore Cmty. Hosp., 719
So.2d 1190 (Ala. 1998); see also Saville v.
Houston County Healthcare Auth., 852 F.Supp.
5
K.M. v. Alabama Department of Youth Services
1512, 1541 (M.D. Ala. 1994) (Thompson, J.)
(conduct of defendant, who touched plaintiff on
the ribs and the buttocks and made sexually
inappropriate comments to her, did not rise to the
level of egregiousness required for a claim of
outrage).
allegedly did occur does make Aseme’s conduct
more egregious than a situation that consisted of
verbal harassment or, for example, an unwanted
slap on the buttocks.
Construing the facts in the light most favorable to
T.A.B., the court finds that the type of conduct
Aseme allegedly engaged in is the type for which
the tort of outrage would allow recovery.
In Harrelson, the Alabama Supreme Court
expressly allowed for recovery for tort of outrage
in case where minor was sexually assaulted by her
18 friend’s step-father. *18 882 So.2d. 317. Applying
Harrelson, the court finds that several factors
make Aseme’s alleged comduct particularly
outrageous. First, as in Harrelson, T.A.B. was a
minor when she was allegedly assaulted. Second,
T.A.B. was in state custody and, thus, was
vulnerable because she was alone and without the
protection parents normally provide from sexual
1261 *1261 predators. Third, Aseme was one of the
individuals entrusted to care for T.A.B.; not only
did he allegedly assault T.A.B., but if he did, he
did so by abusing his position of authority. Fourth,
T.A.B. was in a highly regulated environment
where she was expected to follow the orders of the
numerous adults she came into contact with,
including Aseme. Aseme’s conduct, therefore,
rises to the level of egregiousness required for a
outrage claim because he took advantage of this
situation by using the opportunity that came with
his position of power to exploit T.A.B.’s position
of extreme vulnerability.
19
Moreover, Aseme allegedly actually penetrated
T.A.B.’s vagina with his finger. Unlike the facts in
*19 Saville or Turner, where the conduct of the
defendants amounted to unwanted “groping” and
comments, the act that Aseme is accused of is
particularly extreme and outrageous. This is not to
suggest that penetration or genital contact is a
prerequisite to a claim of outrage based on sexual
assault or harassment. However, the fact that this
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
20
Finally, the court turns to whether the evidence
could support the conclusion that T.A.B. suffered
emotional distress so severe that no reasonable
person could be expected to endure it. T.A.B.
contends the assault happened at some point
between January and May 2001, and she was then
hospitalized in June 2001. The hospital discharge
summary states she admitted “cutting her wrists
with staples, pencils and wire out of her bra” *20
and that she had bitten her wrists.5 Physical
findings confirmed this; T.A.B. exhibited ”
[b]ilateral wrist and chest lesions.”6 Notably, this
hospitalization took place close to the time T.A.B.
alleged the abuse took place.
5 Defendant
Aseme’s
evidentiary
submissions in support of motion of
summary judgment (Doc. no. 149), exhibit
8 (T.A.B. hospital records).
6 Id.
Case notes from T.A.B.’s case manager show a
decline in T.A.B.’s emotional health during a time
period proximate to the alleged assault. On
November 21, 2000 her case manager wrote that
T.A.B. “[h]as not harmed herself in a long time.
She used to cut her arms, mainly for attention.”7
21
This observation was made immediately before
the time period when the alleged assault took
place. However, on June 6, 2001, her case
manager recorded that T.A.B. “[h]as been hurting
herself a lot lately. She cuts herself, bites herself,
manufactures things to cut her arms with, etc.
Staff must observe *21 [T.A.B.] very closely in
order to keep her from making suicide gestures.”8
7 Plaintiffs’ Response to Defendants’ Motion,
exhibit 25 (T.A.B. service plan/release
summary).
8 Id.
6
K.M. v. Alabama Department of Youth Services
In conclusion, the court holds that the evidence
does support the conclusion that T.A.B. suffered
emotional distress so severe that no reasonable
person could be expected to endure it. See
Harrelson, 882 So.2d. at 323-324 (Applying
Alabama law, court held that, where minor
plaintiff, as a result of sexual assault, “became
much more emotional, . . . cries much more than
she did before the assault, . . . for some time after
the assault, which occurred around March 14 and
1262 15, . . . would become hysterical *1262 around the
14th and 15th of each month, . . . has been
traumatized by the assault, . . . has become a much
more fearful person than she was before, [and]
although she has been to see `shrinks and stuff,’
visits with mental health experts only made her
feel worse,” she “has produced evidence of such
weight and quality that fair-minded persons in the
22 impartial exercise of judgment *22
could
reasonably infer that [she] had suffered emotional
distress so severe that no reasonable person could
be expected to endure it.”).
and for her mother.”9 Furthermore, the evaluation
suggested “that [T.A.B.] may have a significant
problem with depression.”10
9 Id.
10 Id.
However, the fact that T.A.B. entered Chalkville
having already experienced a great deal of
emotional trauma does not bar a reasonable jury
from concluding that Aseme’s acts caused T.A.B.’s
mental health to deteriorate. Because there is no
set limit to a person’s capacity to be emotionally
harmed, even if T.A.B. was seriously depressed
and emotionally traumatized before the incident, a
jury could still find that Aseme’s acts seriously
exacerbated T.A.B.’s condition and therefore
caused her extreme emotional distress.
24
Nonetheless, Aseme responds that, because T.A.B.
had serious mental health problems before the
assault, any emotional distress she exhibited after
the assault was merely a continuation of her earlier
problems. Aseme contends that, even if he did
assault T.A.B., T.A.B. cannot establish that her
emotional distress was caused by the assault, and
not caused by incidents that occurred before the
assault.
23
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
There is no doubt that T.A.B. experienced great
stress prior to her commitment to Chalkville,
including the loss of many family members. A
psychological evaluation given to T.A.B. upon her
entry to DYS stated that T.A.B. “[h]as certainly
experienced a great deal of trauma in her life, and
seems to have few skills for coping. She also
appears to have very poor self-esteem and sees
herself as having little value as a person. She
seems to have been deprived of a healthy
childhood and *23 appears to have an
inappropriate level of responsibility in the home
25
But more to the point, the reason DYS juvenile
detainees are in DYS custody is not because they
are well adjusted or otherwise mentally healthy
but rather *24 because they suffer from emotional,
social, and other mental health problems. Indeed,
what particularly lifts this case into the realm of
the outrageous is that allegedly, out of a carnal
desire to satisfy his own pleasures and needs,
Aseme abused his state-conferred authority to take
sexual advantage of a minor girl who he must
have known was more than likely already severely
emotionally damaged. Aseme’s argument, which is
essentially that because T.A.B. was already
emotionally damaged it cannot be determined
whether she was further emotionally damaged as
result of his alleged conduct, is therefore
forcefully rejected by the court.
Assault and Battery Claim: T.A.B. claims that
Aseme is liable to her for assault and battery. ”
[T]o succeed on a claim alleging battery, a
plaintiff must establish: (1) that the defendant
touched the plaintiff; (2) that the defendant
intended to touch the plaintiff; and (3) that the
touching was conducted in a harmful or offensive
manner.” Ex parte Atmore Cmty. Hosp., 719 So.2d
1190, 1193 (Ala. 1998). *25
7
K.M. v. Alabama Department of Youth Services
Aseme contends that assault and battery requires
that the touching be done in a “rude or angry
manner,” Whitlow v. Bruno’s, Inc., 567 So.2d
1235, 1239 (Ala. 1990), and that even if he did
touch T.A.B., the touching was not done in a rude
or angry manner.
injure the plaintiff.” Alfa Mut. Ins. Co. v. Roush,
723 So.2d 1250, 1256 (Ala. 1998) (internal
citations omitted).
27
Although Aseme is correct that Alabama courts
1263 have said that the touching *1263 must be “rude or
angry,” this is not a narrow concept: “Indecency is
within the meaning of rudeness.” Turner v. State,
131 So.2d 428, 430 (Ala.App. 1961); see also
Surrency v. Harbison, 489 So.2d 1097, 1104 (Ala.
1986) (quotingSinger Sewing Machine Co. v.
Methvin, 63 So. 997, 1000 (Ala. 1913) (“A battery
consists in an injury actually done to the person of
another in an angry or revengeful or rude or
insolent manner, as by spitting in the face, or in
any way touching him in anger, or violently
jostling him out of the way, or in doing any
intentional violence to the person of another.”).
26
T.A.B. has submitted evidence that Aseme’s
touching was unwanted, and Aseme does not
allege that the touching *26 was consensual. Since
the term “rude,” in the context of an assault and
battery, has been interpreted to include indecent
and offensive touching, Aseme alleged sexual
molestation of T.A.B., a minor entrusted by the
State to his care, would clearly fall within this
definition.
Wantonness Claim: Wantonness is statutorily
defined as “[c]onduct which is carried on with a
reckless or conscious disregard of the rights or
safety of others.” 1975 Ala. Code § 6-11-20.
Wantonness “has been defined by [the Alabama
Supreme Court] as the conscious doing of some
act or the omission of some duty, while knowing
of the existing conditions and being conscious
that, from doing or omitting to do an act, injury
will likely or probably result. To prove
wantonness, it is not essential to prove that the
defendant entertained a specific design or intent to
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
Aseme contends that § 6-11-20 of the 1975 Ala.
Code requires wantonness to be proven by clear
and convincing *27 evidence. This is incorrect.
Section “6-11-20 is irrelevant in regard to motions
for summary judgment; `rather, it defines the
standard of proof for determining whether the trier
of fact has, or had, the authority to award punitive
damages.’ (Emphasis added.)” Boudousquie v.
Marriott Mgmt. Svs. Corp., 669 So.2d 998, 1001
(Ala.Civ.App. 1995) (quoting Hines v. Riverside
Chevrolet-Olds, Inc., 665 So.2d 909, 925 (Ala.
1994)).
Aseme also contends that he should be granted
summary judgment on the wantonness claim
because T.A.B. has not submitted sufficient
evidence of a prima facie case of wantonness.
Aseme baldly states that T.A.B.’s “own allegations
are incredible, inconsistent and without merit.”11
28
“Wantonness should be submitted to the jury
unless there is a total lack of evidence from which
the jury could reasonably infer wantonness.”
McDougle v. Shaddrix, 534 So.2d 228, 231 (Ala.
1988). As previously stated, T.A.B. has testified in
her deposition that Aseme *28 touched her. Her
testimony was corroborated by the letter to Aseme
from Wood, explaining the reasons for Aseme’s
termination. A reasonable jury could certainly
conclude that Aseme touched T.A.B. in a manner
in which he knew injury was a probable or likely
result.
11 Defendant Aseme’s reply brief in support
of motion for summary judgment (Doc. no.
229), at 4.
Negligence Claim: “The elements of a negligence
claim are a duty, a breach of that duty, causation,
and damage.” Armstrong Bus. Servs., Inc. v.
AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001).
Aseme contends that he is entitled to summary
1264 judgment on T.A.B.’s negligence *1264 claim for
two reasons. First, he states that he has state-agent
8
K.M. v. Alabama Department of Youth Services
29
360 F. Supp. 2d 1253 (M.D. Ala. 2005)
immunity, and second, he contends that T.A.B.
cannot show one of the necessary elements of a
negligence claim: causation.
duty. This is clearly an example of an act that is
beyond the state-agent’s authority, and therefore
not covered by state-agent immunity.
Aseme’s reliance on state-agent immunity is
misplaced. While state-agent immunity does exist
for state employees who are “discharging duties
imposed on a department or agency by statute,
rule, or regulation, insofar as the statue, rule or
regulation prescribes the manner for performing
the duties and the State agent *29 performs the
duties in that manner,” state-agent immunity is
specifically not available for a state employee who
acts “beyond his or her authority.” Ex parte
Cranman, 792 So.2d 392, 405 (Ala. 2000).
Aseme also contends that, even if T.A.B.’s
allegations are true, she cannot show that Aseme’s
acts caused her harm. The court rejects this
argument for the same reasons it rejected the
argument in regards to T.A.B.’s outrage claim. As
previously stated, she has submitted evidence that
her mental health seriously deteriorated after the
alleged act. T.A.B. has submitted sufficient
evidence to allow a jury to conclude that Aseme
caused her harm. *30
Aseme did have a duty to observe detainees.
However, when Aseme allegedly molested T.A.B.,
he was not in any way performing a job-related
30
***
Accordingly, it is ORDERED that defendant Peter
Aseme’s motion for summary judgment (Doc. no.
147) is denied.
9
This book is dedicated to my son Stephen, who, by the grace
of God, has taught me the gift of love and joy through the eyes
of a child.
This book is also dedicated to the teachers and staff members
of Thomas Edison Elementary School to include:
Steven E. Ziegler
Athena Konstan
Peter Hansen
Joyce Woodworth
Janice Woods
Betty Howell
and the School Nurse
To all of you, for your courage and for putting your careers on
the line that fateful day, March 5, 1973.
You saved my life.
Acknowledgments
After years of intensive labor, sacrifice, frustration,
compromises and deception, this book is finally published and
available in bookstores everywhere. I wish to take a moment and
pay homage to those who truly believed in this crusade.
To Jack Canfield, coauthor of the phenomenal bestseller
Chicken Soup for the Soul, for his extreme kindness and opening
a big door. Jack is indeed a rare entity who, without reservation,
assists more individuals in a single day than many of us can help
in a lifetime. Bless you Sir.
To Nancy Mitchell and Kim Wiele at the Canfield Group for
their enormous enthusiasm and guidance. Thank you ladies.
To Peter Vegso at Health Communications, Inc., as well as
Christine Belleris, Matthew Diener, Kim Weiss and the entire
friend
