ACCA affirmed the findings and conviction of PFC Donald P. Laviolet. (Appellant). Appellant was convicted, 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. The military judge sentenced Appellant to a reduction to the grade of E-1, eleven months confinement, and a bad-conduct discharge.
LaViolet opinion case.
On appeal, Appellant argued that the court should disapprove his punitive discharge because mistreatment by a prison guard violated his rights against cruel and unusual punishment under the Eighth Amendment and Article 55, UCMJ.
Appellant asserted that he suffered cruel and unusual punishment, in violation of the Eighth Amendment and Article 55, UCMJ, as a result of inappropriate verbal/non-verbal communication and the use of excessive force during frisk searches by a prison guard while serving his sentence of confinement at Naval Consolidated Brig Charleston.
Specifically, Appellant asserted that over a period of two months 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 search more frequently than others by selecting Appellant for searches after every meal and frisked Appellant more aggressively by grabbing Appellant’s leg as though he was attempting to arouse Appellant and fully placed his hand on Appellant’s genitals as he was “cupping them”.
ACCA, after reviewing Appellant’s case, held that Appellant was not entitled to relief under the Eight Amendment and Article 55, UCMJ. The main reason for this holding is that Appellant did not exhaust all possible administrative remedies. Before invoking judicial intervention for his alleged cruel and unusual punishment, Appellant was required to exhaust all administrative remedies unless there was an “unusual or egregious” circumstance that would have prevented him from availing himself to administrative relief. However, Appellant asserted no such evidence of an unusual or egregious circumstance, nor that he exhausted administrative remedies. Without evidence of either, ACCA held that Appellant was entitled to no relief.
Even though ACCA held that Appellant’s failure to exhaust all administrative remedies was a basis to deny relief, they still discussed Appellant’s cruel and unusual punishment allegations. In exploring Appellant’s argument, ACCA assumed that all of Appellant’s allegations against LCPL BF did occur. However, even assuming that the allegations were accurate, ACCA nevertheless found that Appellant did not meet his burden of establishing cruel and unusual punishment. ACCA noted that Appellant failed to satisfy the following: “(1) an objectively, sufficiently serious act or omission that result 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.” As to the first, ACCA believed LCPL BF’s behavior to be inappropriate, but not arising to the level of cruel and unusual punishment. As to the second point, ACCA did not find that LCPL BF had a culpable state of mind because absent a complaint by Appellant to LCPL BF or prison officials, ACCA could not conclude that LCPL BF had sufficient knowledge of the risk of harm to Appellant’s health and safety.
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