August 19, 2019

Archives for December 26, 2013

Surviving a Personal Apocalypse — Part 3: Alchemy and a Gift for the Holidays

rhodesRenaissance physician, alchemist, scholar, and general curmudgeon Paracelsus was no picnic to be around. He was loud, opinionated, ego-inflated, and generally lived up to his middle name “Bombastus,” vilifying his contemporaries’ reliance on traditional texts, theories, and techniques, and advocating for fresh empirical research and perspective. But despite being personality challenged, he is credited with several lasting contributions to his field, such as founding the discipline of toxicology and introducing the notion of a mind-body link.

Robert Browning immortalized him in a poem that includes these lines:

TRUTH is within ourselves; it takes no rise
From outward things, whate’er you may believe.
There is an inmost centre in us all,
Where truth abides in fullness; and around,
Wall upon wall, the gross flesh hems it in,
This perfect, clear perception—which is truth.
A baffling and perverting carnal mesh
Binds it, and makes all error: and, to KNOW,
Rather consists in opening out a way
Whence the imprisoned splendour may escape,
Than in effecting entry for a light
Supposed to be without.

‘Tis time
New hopes should animate the world, new light
Should dawn from new revealings.

What does this have to do with personal Apocalypse? A lot, actually. For starters, the word “Apocalypse” means “Revelation.” (That’s how the book got its name.) Apocalypse is about “new revealings” – it’s what happens when you unwrap a package to see what’s inside.

How appropriate for this time of year – not just as we open holiday gifts, but as we wonder what the New Year has in store for us.

Revelation at this level isn’t about your garden variety peccadillos. This is discovery and due diligence to the max. No secrets anymore, nothing hidden, nothing unknown. The seals are all broken, all safes are cracked, all containers ransacked and their contents strewn across a billion conference tables. All motives are revealed, all alliances betrayed, all missing links discovered. WikiLeaks is passé: all files are opened, classified access breeched, proprietary information violated. Everything has been hacked. All is Open Source.

This kind of unveiling turns us inward, invites us to realize that WE are the package opened, the mystery revealed. It’s not about measuring up to external standards and practices, or the expectations and achievements of others, it’s about who we are and how we’re doing in our most private moments and vulnerable selves. It’s about who we are and how we fit in this Brave New World where there are no secrets anymore.

Not nearly as much fun as PlayStation – more like having Paracelsus walk into the room – but in the end it’s the magic alchemic ingredient that turns our leadenness into gold. Its purpose is to change both the person who lives inside our skin and the person we present to the world, make them one and the same. As such, it’s the pathway to integrity, authenticity, wholeness, and freedom in the here and now.

And for that reason, Revelation is the gift I wish for you this holiday season. See you next year!

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at

Tenth Circuit: Consent Can Be a Defense to Eighth Amendment Claim Based on Sex Acts Between Prisoner and Custodian

The Tenth Circuit Court of Appeals published its opinion in Graham v. Sheriff of Logan County on Friday, December 20, 2013.

Two prison guards, Jefferies and Mendez, had sexual intercourse with Stacey Graham while she was in solitary confinement at the Logan County Jail in Oklahoma. The guards confessed and were fired immediately. Graham then sought damages in a civil-rights complaint under 42 U.S.C. § 1983 against the two guards and the county sheriff. She alleged a violation of the Eighth Amendment prohibition against cruel and unusual punishment, as applied to the states under the Fourteenth Amendment. The district court granted the defendants’ motion for summary judgment on the ground that the sexual acts were consensual.

On appeal, Graham argued that (1) her consent was a question of fact that must be decided by a jury, and (2) consent was not a valid defense to her claims. Sexual abuse of an inmate by an officer violates the Eighth Amendment and is generally analyzed as an excessive force claim. The test for excessive force has an objective and subjective prong. When a prisoner alleges rape by a prison guard, the prisoner need prove only that the guard forced sex in order to show an Eighth Amendment violation.

In this case, the Tenth Circuit found there was no genuine dispute that the guards did not force Graham to have sex. Graham did not contest that she had participated in sexual conversations with Jefferies for an extended period before the acts in question occurred. She admitted that she flashed Jefferies and wrote him notes that made clear that she wanted to have sexual intercourse with him. She admitted to talking to Mendez about her fantasies, and that she told him to “[b]ring Jefferies” so that they could have a threesome. She did not indicate lack of consent during the event. Although Graham has said that she did not want to have sex with Mendez and that Mendez pushed her head down just before the encounter ended, she has not suggested that she indicated any reluctance to Jefferies or Mendez. Additionally, she did not discuss the significance of Mendez pushing her head down in her opening brief’s argument section.

Graham argued on appeal that a prisoner cannot legally consent to sex with a custodian, so even consensual sex with a prisoner is cruel and unusual punishment. This is a matter of first impression in the Tenth Circuit. The Sixth and Eighth Circuits have held that consensual sex between guards and inmates is not an Eighth Amendment violation. The Ninth Circuit has held that there is a rebuttable presumption of nonconsent that can be rebutted by a showing that the interaction involved no coercive factors. Some district courts have held that consent is not a defense.

The Tenth Circuit held that to prove sexual abuse of a prisoner, some form of coercion by the custodian must be present. The coercion need not be physical. In this case, coercion was not present, so summary judgment was affirmed.

Tenth Circuit: Summary Judgment Affirmed in FDIC Collection Action

The Tenth Circuit Court of Appeals published its opinion in FDIC v. Arciero on Friday, December 20, 2013.

In an effort to save Quartz Mountain Aerospace, some of its investors and directors took out large loans from First State Bank of Altus (the Bank) for the benefit of the company. When the Bank failed in 2009, the Federal Deposit Insurance Corporation (FDIC) took over as receiver and filed suit to collect on the loans. This appeal concerns the challenge to those collection efforts by four of those liable on the notes (Borrowers). Borrowers raised affirmative defenses to the FDIC’s claims and brought counterclaims, alleging that the Bank’s CEO had assured them that they would not be personally liable on any of the loans. The district court granted summary judgment for the FDIC because the CEO’s alleged promises were not properly memorialized in the Bank’s records as required by 12 U.S.C. § 1823(e), a provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.

Borrowers argued on appeal that the district court erred when it denied their motion for more discovery before the court ruled on the FDIC’s motion for summary judgment. The Tenth Circuit disagreed as the Borrowers did not identify any documents that would establish a defense under § 1823(e). They already had the Bank minutes and no Borrower alleged they signed an agreement limiting their liability.

The court also rejected Borrowers’ argument that the district court should have granted their motion for reconsideration based on newly discovered evidence. The Oklahoma Department of Securities opened an investigation into the Bank, its affiliate Altus, and Doughty for selling unregistered securities, including the life-settlement contracts used to secure the loan to Borrowers. According to Borrowers, this evidence supported claims and defenses against the FDIC that would not be barred by § 1823(e) because they are based on securities violations rather than agreements with the Bank. The court held that this did not qualify as newly discovered evidence because the existence of an investigation is not admissible evidence of alleged misconduct. Learning of a new legal theory is not the discovery of new evidence.

The court affirmed.

Tenth Circuit: Unpublished Opinions, 12/23/13

On Monday, December 23, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Rooks v. Drug Enforcement Admin.

Zoutomou v. Kennecott Utah Copper

United States v. Bergman

United States v. Madrid-Apodaca

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.