Opinion
No. 2:99 CV 34 DDN.
August 4, 2000.
Jennifer L. Woods, Jerome H. Block and Cristian M. Stevens, BRYAN CAVE LLP, St. Louis MO, for ALLEN BUSCH, plaintiff.
Susan D. Boresi, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, St. Louis, MO, for JAMES A. GAMMON, JOHN DOE, I, JOHN DOE, II JOHN DOE, III, JOHN DOE, IV, COI, TERESA THORNBURG, DEAN MINOR, STEVE SIMMONS, DON DUVALL, MARGARET RENIE, CLYDE SMITH, KEITH REED, DALE STILL, ROGER MITCHELL, MICHAEL O. MONTGOMERY, defendant's.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court upon defendants' motions for a Rule 16 conference (Doc. No. 23) and for summary judgment (Doc. No. 47), plaintiff's motion for reconsideration of plaintiff's motion for default judgment against defendant Montgomery (Doc. Nos. 34 and 36) and plaintiff's motion for default judgment against defendant Montgomery (Doc. No. 39). As the undersigned United States Magistrate Judge does not have full consent from all of the parties to this lawsuit, the undersigned will rule non-dispositive matters, including the transfer of this case to a United States District Judge, and give a recommendation on dispositive matters pursuant to 28 U.S.C. § 636 (b).
James Gammon, Teresa Thornburg, Dean Minor, Steve Simmons, Don Duvall, Margaret Renie, Clyde Smith, Keith Reed, Dale Still and Roger Mitchell.
Defendant Michael O. Montgomery has not consented to the exercise of jurisdiction by a United States Magistrate Judge. Moberly Correctional Center ("MCC defendants"). He also named as a defendant Michael O. Montgomery, who was an inmate at MCC during the relevant time period. Montgomery is not a party to the MCC defendants' motion for summary judgment; however, he is a party to plaintiff's motion for default judgment.
Plaintiff commenced this action under 42 U.S.C. § 1983, after he was assaulted and raped in prison. He is suing James Gammon, Teresa Thornburg, Dean Minor, Steve Simmons, Don Duvall, Margaret Renie, Clyde Smith, Keith Reed, Dale Still and Roger Mitchell in both their individual and official capacities as employees of the Moberly Correctional Center ("MCC defendants"). He also named as a defendant Michael O. Montgomery, who was an inmate at MCC during the relevant time period. Montgomery is not a party to the MCC defendants' motion for summary judgment; however, he is a party to plaintiff's motion for default judgment.
Since plaintiff's complaint was filed, he has voluntarily dismissed his claims against defendants Steve Simmons and Roger Mitchell without prejudice. See Stipulation For Dismissal, filed May 9, 2000. (Doe. No. 53).
Count I, against the MCC defendants, alleges that defendants failed to separate, or to supervise the separation of, new inmates, housed in the Reception and Orientation Unit ("R O"), according to personality types. Count I also alleges that defendants failed to regularly monitor and patrol the activities within R O on July 11, 1998, and that there was no permanent patrol in R O as required by Post Order 15. Plaintiff alleges these acts violate the Eighth Amendment in that defendants acted recklessly and in conscious disregard of his and other inmates' safety. Count II, against defendant Montgomery, alleges that defendant Montgomery intended to cause and assist in the attack upon and rape of plaintiff and this caused plaintiff great physical pain, humiliation and emotional distress. Count III, against defendant Montgomery, alleged that defendant Montgomery threatened to kill plaintiff if he told anyone about the attack and rape and that this caused plaintiff severe emotional distress.
I. Default Judgment
Plaintiff originally moved for default judgment against defendant Montgomery on February 10, 2000 (Doc. Nos. 26 and 27) On February 15, 2000, the Clerk entered a default under Federal Rule of Civil procedure 55(a) (Doc. No. 28). On February 23, 2000, the undersigned denied the motion for default judgment without prejudice and stated that plaintiff could file another motion for a default judgment which certified service on defendant Montgomery (Doc. No. 33). On February 24, 2000, and February 28, 2000, plaintiff filed motions for reconsideration (Doc. Nos. 34 and 36). On February 29, 2000, plaintiff filed another motion for default judgment (Doc. No. 39) and thereafter filed a memorandum with an attached copy of certificate of service (Doc. No. 46).
Federal Rule of Civil procedure 55, which governs default judgments, provides as follows:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
Fed.R.Civ.P. 55(a). Now that defendant Montgomery has been properly served with process and has failed to plead or otherwise defend, the undersigned concludes that a default judgment is proper. The undersigned will deny plaintiff's pending motions for reconsideration (Doc. Nos. 34 and 36) as moot and will recommend that plaintiff's motion for a default judgment (Doc. No. 39) be granted.
II. Summary Judgment
The court must grant summary judgment if the pleadings, admissions, stipulations, depositions and affidavits demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ. p. 56(c); ex Corp. v. Catrett,U.S. 317, 322 (1986);of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 863 (1982). The moving party must initially demonstrate the absence of an issue for trial. Celotex, 477 U.S. at 323. Any doubt as to the existence of a material fact must be resolved in favor of the party opposing the motion. Pico, 457 U.S. at 863.
Once a motion is properly made and supported, the non-moving potty may not rest upon the allegations in the pleadings but must instead set forth admissible evidence of specific facts showing that there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e); Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). Although the court views the facts in a light most favorable to the non-moving party, "in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be genuine dispute over those facts that could actually affect'the outcome of the lawsuit."Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir. 1998).
FACTS
The record indicates that the following material facts are without genuine dispute:
1. Plaintiff Allen Busch is an inmate who was incarcerated at the MCC during the time relevant to his claims. He was serving a fifteen year sentence.
2. Defendant Tony Gammon is the Superintendent of MCC.
3. Defendant Teresa Thornburg is the Associate Superintendent at MCC.
4. Defendant Dean Minor is a Functional Unit Manager at MCC. His duties include supervising all activities and matters associated with the particular housing unit to which he is assigned.
5. Defendant Don Duvall, at the time of the incident giving rise to the lawsuit, was a Classification Caseworker at MCC. His duties included processing the inmates in the R O Unit, assigning them to cells and completing their classification.
6. Defendant Margaret Renie is a Classification Caseworker at MCC. Her duties include processing the inmates in the R O Unit, assessing whether any inmates have protective custody needs upon their arrival, assigning them cells, and completing inmate classification.
7. Defendant Clyde Smith is a Corrections Officer I at MCC. At the time of the incident giving rise to this lawsuit, he was the Rotunda Officer assigned to Housing Unit 1, which includes the R O. unit. Defendant Smith had no responsibility for assigning inmates to cells in the R O Unit.
8. Defendant Keith Reed, at the time of the incident giving rise to the lawsuit, was a Corrections Officer I at MCC, assigned to Housing Unit 4. His responsibilities included patrolling the wing, searching cells, collecting property and generally maintaining the security of the Housing Unit. Defendant Reed had no responsibility for assigning inmates to cells in the R O Unit.
9. Defendant Dale Still is a Corrections Officer I at MCC, assigned to Housing Unit 4. His responsibilities include patrolling the wing, searching cells, collecting property and generally maintaining the security of the Housing Unit. Defendant Still has no responsibility for assigning inmates to cells in the R O Unit.
10. Plaintiff arrived at MCC on June 9, 1998, and was placed in R O. When inmates arrive at MCC, they are asked if they have protective custody needs. If the inmate so indicates, he is immediately segregated from the other inmates and placed in protective custody. The inmates are also instructed on how to request protective custody and are given a copy of a Reception and Orientation packet, an Inmate Rule Book and a hand-out entitled "Guidelines for Adjustment to Incarceration." The inmates also receive their state-issued clothing and room keys and their property is reviewed. They are seen by medical staff and are told the rules, where to eat, recreate and purchase canteen.
11. The inmates then meet individually with either a Classification Caseworker or a Classification Caseworker Assistant, who advises inmates on how to avoid problems with staff and inmates. The classification staff determines whether the inmate has protective custody needs. If he does, he is immediately placed in protective custody and if he does not, he signs a protective custody waiver.
12. After plaintiff's arrival on June 9, 1998, he met with defendant Renie to review his protective custody needs. Plaintiff had received his written materials, which included the Reception and Orientation packet, the Inmate Rule Book and the hand-out, and he signed a protective custody waiver. Defendant Renie assigned plaintiff to a cell in the C-Wing with defendant Michael Montgomery. Inmate Curtis Cleary was celled down the tier from plaintiff.
13. The layout of Housing Unit 4 is as follows. A few steps from the front door of the unit is the Housing Unit rotunda. The rotunda officer's desk faces these doors and the Housing Unit wings are on either side of the rotunda officer. The entrance door to C-Wing is a few steps up from the rotunda and the wall separating C-Wing from the rotunda is glass. C-Wing has two tiers. There are eighteen cells in C-Wing and the R O Unit at MCC consists of five cells on the top tier. Each cell is made of cement block, has a steel door with a small plexiglass viewing panel, and can hold four inmates. From the rotunda desk, the rotunda officers have a direct line of sight into the housing unit wings, although they cannot see directly into the cells if the doors are closed. Loud noises in the wings, like screams, hollers or radios, can be heard in the rotunda. plaintiff's cell was about 40 feet from the rotunda officer's desk. The caseworkers' offices share a common wall with plaintiff's cell.
14. On June 11, 1998, defendants Smith, Reed and Still were on duty in Housing Unit 4. Two officers are always stationed in the rotunda, while the other patrols and monitors Housing Unit 4 A-Wing and C-Wing. The patrolling responsibilities were shared by defendants Still and Reed.
15. On June 11, 1998, Cleary entered the cell that plaintiff shared with Montgomery. Cleary asked plaintiff if he wanted "a black dick or a white dick." Plaintiff thought he was joking and did not take it seriously until Cleary began to physically assault him by beating him. Cleary then sexually assaulted plaintiff by penetrating him anally.
16. Plaintiff then went to the rotunda and asked defendant. Smith to see his caseworker. His caseworker, defendant Duvall, noticed a red mark on plaintiff's neck which appeared suspicions. He also noticed blood on plaintiff's shirt. Defendant Duvall had plaintiff escorted to the medical unit. plaintiff was interviewed by an investigator at MCC, examined and treated at MCC hospital. He was then transferred to Moberly Regional Hospital for examination, treatment and collection of a rape kit. Meanwhile, defendant Duvall went to plaintiff's cell, where he saw blood on plaintiff's sheet. He ordered the sheets collected and the room dead bolted.
17. Upon release from the hospital, plaintiff was segregated from the general population and put on suicide watch. Inmates Cleary and Montgomery were issued conduct violations for the attack and rape. Cleary committed suicide soon after the issuance of the conduct violation, plaintiff also contacted defendant Gammon, seeking prosecution of Montgomery. Gammon determined not to prosecute because the assailant was dead.
DISCUSSION
Defendants first argue that there is no evidence that they failed to protect plaintiff from a known risk of harm because they did not know that he faced danger from these attackers. They also argue that plaintiff was not subjected to a pervasive risk of harm because of his size or his classification or because of the frequency and nature of the housing unit patrols. Defendants further argue that there is no respondeat superior liability under 42 U.S.C. § 1983; therefore, the supervisory defendants cannot be held liable. Finally, defendants argue that they are entitled to qualified immunity.
Plaintiff disputes that the guards were in the wings of Housing Unit 4 as much as possible on the day of the incident. He contends that from 10:00 am. until 12:45 p.m., one of the three officers was either or lunch or had moved onto his next post. Therefore, because of the rule that two officers always must remain in the rotunda, no one was patrolling the wings during plaintiff's assault and rape. Furthermore, plaintiff points out that MCC Post Order 15 requires that a permanent patrol be assigned to the wings. plaintiff also argues that the cell assignment procedures in R O show deliberate indifference to his Eighth Amendment rights because no consideration is given to the inmates' personality classifications.
The Supreme Court has clearly held that the Eighth Amendment includes the right to protection from inmate attacks. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, the court inFarmer also commented that "[i]t is not . . . every injury suffered by one prisoner at the hands of another that translates constitutional liability for prison officials responsible for the victim's safety." Id. at 834. A two-component test defines the required showing for a violation of the Eighth Amendment. There must be "1) an objectively serious deprivation; and 2) a subjectively culpable state of mind." Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996) (citing Farmer, 511 U.S. at 834). That court continued:
The subjective component of the Eighth Amendment right to protection from inmate attack requires a showing that prison officials acted, or failed to act, with "deliberate indifference" to inmate health or safety. . . [A] prison official cannot be found deliberately indifferent under the Eighth Amendment "unless the official knows of and disregards an excessive risk to inmate health or safety." In other words . . . "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Id. (quoting Farmer, 511 U.S. at 834, 837).
Defendants argue they are entitled to qualified immunity. Under the doctrine of qualified immunity, "state actors are protected from civil liability when `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have know'" Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Eighth Circuit has considered qualified immunity in the context of the Eighth Amendment. As a result, "[t]aken together, the cases indicate that [defendant] is entitled to qualified immunity unless a reasonable official would have known that [defendant's] actions constituted a deliberate, callous, or reckless disregard for [plaintiff's] safety." Prosser v. Ross, 70 F.3d 1005, 1007 (8th Cir. 1995).
In this regard it is incumbent upon plaintiff to proffer substantial evidence of an ultimate fact or facts as to whether defendants acted with deliberate indifference when promulgating and carrying out the cell assignment procedures or that a reasonable official would have known that the cell assignment procedures in place constituted deliberate, callous or reckless disregard for plaintiff's safety. See id.
A. Cell Assignment Procedures
Summary judgment must be granted to the supervisory defendants, Gammon, Thornburg, Minor, Duvall and Renie, if the record is without genuine dispute that the cell assignment procedures in place did not violate the Eighth Amendment. The record reflects that MCC uses the Adult Internal Management System ("AIMS"), which is a tool to identify personality types. Def. Exh. E, at ¶ 12. At MCC, AIMS is used to classify inmates according to personality type and to assign them to their permanent prison cells. Pl. Exh. P, at 13, 30-31; Pl. Exh. U, at 8. Inmates are classified as an Alphas, who tend to be more assertive; and inmates are classified as Sigmas who tend to be more dependent upon other individuals. Pl. Exh. P, at 13. Sigmas are generally not celled with Alphas. Most of the inmates at MCC have been given an AIMS classification at another institution before they arrive at MCC; however, some, including plaintiff upon his arrival, have not.
AIMS is not used to determine cell assignment in specialty units, including the R O Unit, and there is no attempt to separate inmates in R O who have been classified from those who have not been classified. Def. Exh. E, at ¶ 13. Defendants maintain that the reason for this is that the assignment in the R O unit is short-term, usually lasting one or two weeks. Id. Defendants also argue that there is limited space in the R O Unit and that the AIMS classification is mainly for sleeping arrangements. Id. Pl. Exh. I, at 14.
Plaintiff refers to reported assaults, grievances and requests for protective custody at MCC. He argues that defendants Gammon, Thornburg, Minor, Duvall and Renie were aware of these reports and that they were aware of the risks of assigning an Alpha inmate to a cell with a Sigma inmate. Plaintiff also claims that defendants Duvall and Renie knew of and disregarded an excessive risk to plaintiff's safety by failing to use information in their possession, i.e., defendant Montgomery's and inmate Cleary's classifications as Alphas, to assign inmates to cells or to cell inmates by themselves. Finally, plaintiff argues that defendants Minor, Thornburg and Gammon knew of and disregarded an excessive risk to plaintiff's safety by failing to institute such procedures for the protection of inmates.
Plaintiff, citing to defendant Minor's deposition, claims that "50% of newly arrived inmates immediately request protective custody. See Mem. in Opp., at 12 (citing Pl. Exh. P, at 14). However, defendants, in their Reply Memorandum, submitted the affidavit of Dean Minor, which stated: "Page 14, line 13 is erroneously transcribed. I did not say that "maybe 50% [or] more will initially request protective custody.' I testified that 5 to 10% [or] more will initially request protective custody." Def. Exh. O. Defendant Gammon testified that the number of inmates who request protective custody varies and that he has seen as many as half group come in and request it, and in the next group, no one was request it. Pl. Exh. U, at 15-16.
The crux of plaintiff's argument is that AIMS classifications were not used to place plaintiff in a different cell in R O. He also argued at the hearing that it would have been possible for defendants to discern from Cleary's and defendant Montgomery's conduct history that they were potentially dangerous. However, as defendants Duvall and Gammon point out, AIMS classifications are primarily used for sleeping and permanent living arrangements. Pl. Exh. I, at 14; Pl. Exh. U, at 8-9. Plaintiff's attacker had not been assigned to the cell with him.
The court has reviewed the evidence of other incidents of violence at MCC. The record reflects that from June 1996 through October 1999, twenty-five offenders were referred to the prosecuting attorney for violating Rule 2 (Assault). Pl. Exh. X, at 13. None of them occurred in R O. Id. Def. Exh. N. During the same time period, there were four Rule 7 violations issued for sexual misconduct, three of which occurred in Housing Unit Two. Pl. Exh. X, at 13. The remaining violation was issued against defendant Montgomery for the incident at issue. Id. Def. Exh. N, at 2.
Plaintiff must show at the outset that he suffered an objectively serious deprivation. See Prater, 89 F.3d at 541. Assuming a reasonable person could conclude that the failure to use AIMS to assign inmates to their cells in R O was such a deprivation, plaintiff has not shown evidence of sufficient facts to indicate that defendants acted or failed to act with deliberate indifference to plaintiff's safety. Id. Defendant Gammon points out that there are only five cells designated for R O and that plaintiff would have been just "as vulnerable to Cleary wherever he was celled. Pl. Exh. U, at 28. He argues that his only option would have been to put plaintiff in protective custody, an option which plaintiff had declined. Id. Indeed, plaintiff signed a protective custody waiver, see Def. Exh. M-2, and testified that he "was never intimidated until the day [he] was raped." Def. Exh. B, at 55.
The Eighth Circuit has held that "prison officials are entitled to qualified immunity from claims arising out of a surprise attack by one inmate on another. . . . This is true even if the official knows . . . that the attacking inmate may be dangerous or violent." Prosser, 70 F.3d at 1007 (citations omitted). In the instant case, there is evidence in the record that Cleary and defendant Montgomery had violent personalities. However, there is also evidence that their prior violent conduct was normal for inmates newly arrived at MCC. Defendant Duvall testified in his deposition as follows:
Q. What about inmate Curtis Cleary, was transferred to Moberly after being issued a Conduct Violation for Rule Number 2, assault on another inmate. Wouldn't that give you some indication that he's a problem?
A. That's not unusual. This is a Level IV institution. He's already been sanctioned and punished. And the last part of his punishment is to come to our custody level institution.
* * *
Q. Okay. What about twelve Conduct Violations in the previous six months for disobeying orders, inciting riots,
A. Pretty well normal.
Q. It's normal?
A. For a lot of our inmates. They don't roll from other institutions here for being good.See Pl. Exh. I, at 15-16. In light of the evidence in the record, the court concludes that there are no facts from which defendants Gammon, Thornburg, Minor, Duvall and Renie should reasonably have inferred that a serious risk of harm to plaintiff existed. See Prater, 89 F.3d at 541. Thus, these defendants are entitled to qualified immunity.
B. Monitor and Patrol of R O
Summary judgment must be granted to defendants Smith, Reed and Still if the evidence is unequivocal that these defendants did not act with reckless disregard for plaintiff's safety when they failed to obey Post Order 15, which required a permanent patrol be assigned to the wings, or when they failed to patrol the wings regularly. See Prosser, 70 F.9d at 1007.
At the time of this incident, there had not been any recent inmate-on-inmate attacks in the R O Unit. See Pl. Exh. X, at 13; Def. Exh. N. The officers in the rotunda had a clear view of the wings, although they could not see into the cells. See Pl. Exh. H, at 20. Defendants also testified that any screams or cries for help would easily be heard in the rotunda. See Pl. Exh. R, at 28-30; Pl. Exh. 5, at 13. Furthermore, the Eighth Circuit has clearly held as follows:
Our decision today stands for the proposition that a prison official's violation of an internal regulation does not give rise to an Eighth Amendment claim of "cruel and unusual punishment," in the absence of objective evidence demonstrating that prison officials intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates.T.S. Falls v. Nesbitt, 966 F.2d 375, 380 (8th Cir. 1992). For the reasons cited above, the court concludes that defendants Smith, Reed and Still did not violate plaintiff's Eighth Amendment rights by failing to follow Post Order 15.
The record evidence indicates that from 10:00 a.m. to 12:45 p.m., no officer patrolled the wings because one of the three defendant corrections officers was at lunch and the two remaining officers were required to remain in the rotunda. However, the record reflects that the assault took place shortly after 10:00 a.m. Pl. Exh. L-1; Pl. Exh. L-2; see also, Def. Exh. B, at 32 ("the rape itself happened around ten or eleven o'clock in the morning"). In view of the record, the court concludes that failing to patrol one wing of the housing unit between 10:00 a.m., after which there were only two officers on duty in the rotunda, and the time of the assault, shortly thereafter, does not constitute a "deliberate, callous or reckless disregard for [plaintiff's] safety." Prosser, 70 F.3d at 1007.
For these reasons,
IT IS HEREBY ORDERED that the motion of defendants Gammon, Thornburg, Minor, Duvall, Renie, Smith, Reed and Still for a Rule 16 conference (Doc. No. 23) is denied as moot.
IT IS FURTHER ORDERED that plaintiff's motions reconsideration of plaintiff's motion for default judgment (Doc. Nos. 34 and 36) are denied as moot.
IT IS FURTHER ORDERED that the Clerk shall transfer this case to a United States District Judge.
IT IS FURTHER ORDERED that the Clerk shall mail a copy of this Order and Recommendation to defendant Montgomery at 504 Dyann, Nixa, Missouri 65714.
IT IS HEREBY RECOMMENDED that plaintiff's motion for default judgment (Doc. No. 39) against defendant Montgomery be granted.
IT IS HEREBY RECOMMENDED that the motion of defendants Gammon, Thornburg, Minor, Duvall, Renie, Smith, Reed and Still for summary judgment (Doc. No. 47) be granted.
The parties are advised that they have ten (10) days to file written objections to this Order and Recommendation. The failure to file written objections may result in a waiver of the right to appeal issues of fact.