Opinion
Cause No. IP97-2014-C-M/S
April 13, 2001
ORDER ON DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Marion County Sheriff's Department's ("Department") renewed motion for summary judgment on Plaintiff Ronald F. Butera's ("Butera") civil rights claim under 42 U.S.C. § 1983 and negligence claim under Indiana law. The Department filed this renewed motion after this Court declared a mistrial on September 6, 2000. After reviewing the renewed summary judgment motion and briefs, the Court GRANTS the Department's motion for summary judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND A. THE ASSAULT ON BUTERA
Butera was a pre-trial detainee in the Marion County Jail from December 12, 1996, through January 21, 1997. Stmt. of Material Facts ¶ 1. On or around January 6, 1997, while Butera was housed in cellblock 2-I of the jail, he was sexually assaulted by fellow inmates Brian Mitchell ("Mitchell") and James Eskridge ("Eskridge"). Id. ¶ 2. Before the assault, Mitchell and Eskridge punched Butera several times, and once came to his bunk and tried to pull down his underwear, hit him on the buttocks, and told him that he was "going to be their bitch." Id. ¶ 5. Prior to the assault, Butera had not reported to Marion County Sheriff Jack Cottey or any other jail personnel that he had been threatened or assaulted in cellblock 2-I. Id. ¶ 3. Butera claims, however, that approximately one week before the assault he banged on the door to the cellblock and spoke to a guard on the catwalk about the following:
I told them I was having problems in the block. And at the time I was scared and they asked me what kind of problems I was having and I just said I need removed, just told them I was having problems and I needed removed and they said they couldn't do it.Butera Dep. at 17. In addition, shortly before the assault Butera's mother, Rene Butera ("Ms. Butera"), contacted jail personnel and explained that Butera had been threatened specifically with sexual assault by other inmates in cellblock 2-I. Rene Butera Aff. ¶ 2. According to Butera, the Department's policymakers knew that certain acts had occurred at the jail in the past, including murder; sexual assault; assault and battery; drug-related activity; and gang-related activity. Id. ¶ 26.
Butera's mother, Rene Butera, contacted an employee at the jail who was on phone duty prior to January 6, 1997, and asked that her son be transferred because other inmates had threatened Butera with sexual assault. Id. ¶ 43. Despite Ms. Butera's call to inform the jail of the threats against her son, the jail did not move him away from the other inmates. Following the sexual assault, Butera told his parents over the telephone that he had been raped. After this second phone call, the jail moved Butera to a different cellblock. Id. ¶¶ 46.
B. THE DEPARTMENT'S POLICIES WITH RESPECT TO INMATE SECURITY
In addition to Cottey, the jail's deputy chief in charge and two of its majors had ultimate authority and responsibility for the development of policies and procedures pertaining to inmate security at the jail. Cottey also had the right to consult with other entities for guidance. Id. ¶ 25. Jail policy required correctional officers to make what were known as "clock rounds" through the cellblocks at least once per hour. Id. ¶ 7. The purpose of the clock rounds was to ensure inmate safety and to prevent violence. Id. ¶ 8. The Department contends that during clock rounds the correctional officers approach the cellblock and speak to the inmates to determine if they need assistance. Id. ¶ 9. According to Butera, however, the burden is upon the inmate to approach the correctional officer and justify any requested assistance. Butera Tr. at 25-26. At any rate, if an inmate informs jail personnel that he is having a problem with another inmate and identifies that inmate, jail policy calls for one of the inmates to be taken out of the cellblock and reclassified. Id. ¶ 10. The policy resulted in Butera being immediately moved to another area when he complained that a friend of one of his attackers threatened him for complaining about the January 6, 1997, assault. Id. ¶ 11.
Another way for inmates to advise correctional officials of safety or other concerns was through call cards which were available to inmates in all cellblocks, including cellblock 2-I. Inmates simply needed to write a note to a correctional officer to request protection because they were being threatened. Id. ¶ 12. Correctional officers picked up call cards every time they were in a cellblock. Id. ¶ 13.
In addition, correctional officers monitored inmates throughout the day. For example, officers were present in cellblock 2-I three times a day to feed inmates, and also returned to remove trays and utensils after feeding, at which time inmates could approach the officers to request protection if they were being threatened. Id. ¶ 14. Often inmates would leave call cards in between the trays to request protection if they did not want other inmates to know of the request, and correctional officers would find them as they counted the trays and utensils after each feeding. Id. ¶ 15.
Inmates also were able to leave their cellblocks every day for attorney visits, court dates, sick call, church, and various classes. During these times, correctional officers would be present in the cellblocks, including cellblock 2-I, to respond to requests from inmates for protection if they felt they were being threatened. Id. ¶ 16. Inmates in cellblock 2-I had phone privileges all day long and could make outside calls to advise friends and family of safety concerns. Id. ¶ 17. Frank Gonzalez, a correctional officer, believes that clock rounds were more effective than video cameras in preventing inmate-on-inmate violence. Id. ¶ 18.
Another of the jail's security measures was a "classification scheme" under which pre-trial detainees were housed in cellblocks consisting of inmates accused of similar crimes. Id. ¶ 27. The jail classified prisoners by sex, age, and behavior. For example, the jail did not house males and females together, did not allow juveniles to be housed with adults, and separated inmates with a history of violent crime and/or past violent behavior from other inmates. Id. ¶ 19. At the time of the assault, cellblock 2-I housed inmates with violent behavior. Id. ¶ 20. Butera had been arrested for two robberies and felonious assault. Id. ¶ 21.
Moreover, if an inmate told an officer that he was having a problem, the officer was to get the names of the inmates he was having problems with and pass the information along to the classification officer so he or she could separate and reclassify the inmates. Id. ¶ 33. According to Major Davis, it might be reasonable for an inmate to be concerned that reporting another inmate's violation of the rules might lead to some sort of physical retribution by another inmate. Id. ¶ 34. Detective Stephen Summers also testified that it has been his experience that inmates are reluctant to get into another inmate's business. Id. ¶ 35.
Other than the once-per-hour visual inspection, jail policy did not include or mandate any additional monitoring of cellblock 2-I, although if inmates alert guards to problems the guard will investigate. Id. ¶ 36. Lieutenant Blanton testified that if the inmates had an emergency they could bang on the doors when the officer made rounds or pass a note to them through the bars. They could also bang on the metal beds, but Blanton was not sure the officers would hear that. Id. ¶ 37. There were no video cameras or audio monitoring systems in cellblock 2-I. Id. ¶ 38. According to Davis, however, officer presence in a cellblock acts to reduce violent behavior and deter criminal activity among inmates. Id. ¶ 39.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. SECTION 1983 STANDARDS
Title 42 U.S.C. § 1983 creates a federal cause of action for "the deprivation, under color of [state] law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States." Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir), cert. denied, 522 U.S. 998 (1997). Section 1983 is not itself a font for substantive rights; instead it acts as an instrument for vindicating federal rights conferred elsewhere. Id.
As a pre-trial detainee, Butera had not yet been convicted of a crime and therefore could not be "punished." As a result, the Court must analyze Butera's treatment at the jail under the Due Process Clause, rather than the Eighth Amendment's prohibition against cruel and unusual punishment. Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000). Pre-trial detainees are protected from deliberate indifference of officials. Id. A finding of deliberate indifference requires a showing that the officials were aware of a substantial risk of serious injury to the detainee but nevertheless failed to take appropriate steps to protect him from a known danger. Id. Officials are not, however, required to ensure the detainee's safety. In addition, the "existence or possibility of other better policies which might have been used does not necessarily mean that the defendant was being deliberately indifferent." Id.
The only defendant in this case is the Marion County Sheriff's Department. For liability to attach to the Department under § 1983, Butera must show that "deliberate action attributable to the municipality directly caused a deprivation of federal rights." Id. Butera must show that municipal policymakers made a "deliberate choice" among various alternatives and that the injury was caused by the policy. Id. A municipality violates the Constitution when it has an unconstitutional custom or policy. Brokaw v. Mercer County, 235 F.3d 1000, 1013 (7th Cir. 2000). A "custom" or "policy" can take one of three forms: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a "custom or usage" with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policy-making authority.
III. DISCUSSION
Butera appears to make two arguments why the Department should be held liable for his injury: (1) Butera and his mother gave the Department actual notice that he was in danger and the Department failed to do anything about it; and (2) that despite knowledge of an imminent and serious risk of harm to Butera, the Department maintained policies that were inadequate to protect him from assault. The Court will now consider Butera's arguments:
A. BUTERA'S SECTION 1983 CLAIM 1. Ms. Butera's Call to the Jail
The parties vigorously dispute whether the Court should consider Ms. Butera's testimony that a week before the assault, she called the jail and told someone that other inmates had specifically threatened to sexually assault her son in cellblock 2-I. According to the Department, the Court should not consider this evidence because Butera failed to disclose it prior to trial. Indeed, the Court granted a mistrial for Butera's violation of Fed.R.Civ.P. 26(e) with respect to this evidence.
After reviewing the evidence submitted with the Department's renewed motion for summary judgment, however, the Court concludes that even with this evidence Butera cannot establish liability on the part of the Department. As already discussed, to hold the Department itself liable Butera must show that municipal policymakers made a "deliberate choice" among various alternatives and that the injury was caused by the policy. Butera has presented no evidence whatsoever that a policymaker of the Department had knowledge of Ms. Butera's phone call, or that the Department had a custom or policy of ignoring such pleas for help.
It appears that Ms. Butera complained to someone, presumably an employee of the Department, and that employee failed to take any action in response. If it was merely an employee who received this message and failed to act — as opposed to a policymaker — Butera's claim against the Department fails because it is well settled that a municipality cannot be held liable under a respondeat superior theory. See Williams v. Heavner, 217 F.3d 529, 532 (7th Cir. 2000) (noting that under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), municipalities are not vicariously liable for their employees' constitutional torts). With no evidence that a policymaker of the Department had notice of Ms. Butera's complaint and failed to act, or that the Department had a policy of routinely ignoring such complaints, the fact that Ms. Butera called an anonymous Department employee to complain about her son's safety does nothing to further Butera's claim against the Department.
2. The Department's Policy of Monitoring Inmates
A municipality violates the Constitution when it has an unconstitutional custom or policy. Brokaw, 235 at 1013. A "custom" or "policy" can take one of three forms: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a "custom or usage" with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policy-making authority. In this case, Butera's claim falls under the first prong because he contests the Department's express policies with respect to inmate security, including the policy of checking on inmates once per hour. According to Butera, the Department kept this policy in place despite its knowledge of a serious threat of harm to him. Although the Department is not required to guarantee Butera's safety, it could be liable if it was aware of a substantial risk of serious injury to Butera but nevertheless failed to take steps to protect him. Frake, 210 F.3d at 781.
Butera attempts to show that the Department's policymakers were aware of specific dangers to pre-trial detainees that had occurred in the past, including "murder, rape, assault and battery, drug related violence, and gang related violence." Butera's Response Brief at 5. When looking at the actual record evidence, however, there is nothing to support a conclusion that the Department was aware of a serious risk of sexual assault to Butera. For example, Major Steven Davis testified that he knew that sexual assaults, assaults and battery, and even a murder had occurred at the jail, although he gave no indication of the number of times these acts had occurred, when they had occurred, or if they even had occurred in Butera's cellblock. Davis Dep. at 15, 28-29, 31. In addition, while Detective Stephen Summers testified that he had investigated 10-15 sexual assault cases and one inmate-on-inmate violence case per month since 1993, there is no evidence that any of these allegations was confirmed or that any occurred in Butera's cellblock. Summers Dep. at 7-8. Finally, Butera offered the testimony of Deputy Francisco Gonzalez that during an 18- to 24-month period he witnessed eight to fourteen fights among the inmates, including incidents in the recreational area where they were playing basketball. Gonzales Dep. at 10.
This evidence is simply insufficient to establish that the Department was on notice that its inmate security measures were somehow failing, or that Butera faced a serious threat of being sexually assaulted. In Frake, the plaintiff was an administrator of the estate of a pre-trial detainee who had committed suicide. The plaintiff claimed that the history of suicides in the Chicago detention facility, in addition to the fact that the City continued to put detainees alone in cells with horizontal cross-bars, showed that the City was deliberately indifferent. Frake, 210 F.3d at 782. In fact, the plaintiff produced evidence that over approximately seven years there had been twenty other suicides and 163 attempted suicides by hanging. Id. The Seventh Circuit found that while it was possible that one or two suicides coupled with other evidence could add up to deliberate indifference in a proper case, the "fact of an unfortunate, but not outrageous, number of suicides . . . given other precautions which may be taken, might not." Id.
In this case, Butera's evidence shows only that other acts of violence may have occurred at the jail at unidentified times in the past. The jail setting is potentially dangerous and occasionally explosive. While Butera is entitled to reasonable protection from harm, the Department cannot be expected to eliminate the possibility of all attacks. Butera has presented no evidence of the frequency of such violent conduct in the past, when it allegedly took place, or where it allegedly occurred. Indeed, Butera has presented no evidence that any other violent act ever occurred in his particular cellblock. Without such evidence, Butera cannot establish that the Department was aware that its inmate security measures were deficient, or that it had knowledge that Butera was at risk for sexual assault. In other words, there is no evidence that municipal policymakers made a "deliberate choice" to maintain a policy that they knew posed a serious risk of injury to Butera.
Butera also notes that he once told guards that he was having problems in the block and that he was scared. When the guards asked him what kinds of problems he was having, however, he simply told them he needed to be removed. Inmates may ask to be moved from their particular cellblock for a variety of reasons, including reasons completely unrelated to their personal safety. Even assuming Department policymakers had notice of Butera's request — and there is no evidence that they did have such notice — it was too vague to put them on notice that he was at serious risk for being sexually assaulted.
Butera also argues that a May 1999 order from Judge Dillin of this Court put the Department on notice of a systematic pattern of violence in the jail. In his order, however, Judge Dillin simply reconsidered his earlier orders setting population limits at the Marion County Jail and the Marion County Lockup. At the time of Butera's assault, the jail apparently was under a population cap to prevent overcrowding. That cap was later terminated in July of 1997, and Judge Dillin was reviewing whether the Court should reinstate that order. Although he found troubling the incidents of violence against juveniles at the jail and that the overall monitoring of the west wing was deficient, Judge Dillin concluded that the conditions were not the result of overcrowding. As a result, he refused to reinstate the population order with respect to the jail. There is no evidence, however, that the jail was in violation of the population cap at the time of Butera's assault, or that jail officials otherwise knew that Butera was at a serious risk for sexual assault. Although Judge Dillin did note that the overall monitoring of the west wing was deficient, this alone is insufficient to establish that the Department was on notice that inmate security policies placed Butera in danger.
Finally, Butera claims that the Department's policies were ineffective because (1) due to fear of retaliation, inmates would not "snitch" on others; (2) inmates would hide violent activity by dimming cellblock lights, hiding behind blankets draped over bunk beds, or simply committing violent acts when officers were not present; and (3) that even if an inmate began screaming and banging on the cell bars to bring an emergency medical situation to the guards' attention, the guards could remain unaware of the situation for a period of time because of their absence from the area. See Butera's Response Brief at 5-7. But Butera has failed to show how the Department's policy was the cause of these activities. See Estate of Novack v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000) (noting that a municipal policy or practice must be the "direct cause" or "moving force" behind the constitutional violation). Indeed, even if the Department increased the frequency of visual inspections — or even installed 24-hour video monitoring — this would not necessarily solve the problem of inmates fearing retaliation if they "snitched," nor would it guarantee that inmates would no longer drape blankets over their beds, dim the lights, or wait until guards left the area to commit their violent acts. Even if Butera could point to more effective policies, that would not establish that the Department was deliberately indifferent. See Frake, 210 F.3d at 781 (the "existence or possibility of other better policies which might have been used does not necessarily mean that the defendant was being deliberately indifferent."). As a result, the Department is entitled to summary judgment on Butera's § 1983 claim.
Butera is referring to the jail's policy of requiring inmates to identify potential troublemakers by name so that the guards can investigate and take appropriate action.
B. BUTERA'S NEGLIGENCE CLAIM UNDER INDIANA LAW
Because the Court has dismissed Butera's federal claim under § 1983, original jurisdiction is now lacking and the Court may — pursuant to 28 U.S.C. § 1367(c)(3) — properly dismiss his remaining state law negligence claim. Accordingly, the Court chooses to exercise its discretion under 28 U.S.C. § 1367(c)(3), and DISMISSES without prejudice Butera's negligence claim.
IV. CONCLUSION
Butera has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on his § 1983 claim, and the Court GRANTS the Department's motion for summary judgment on that claim. In addition, the Court DISMISSES without prejudice Butera's remaining state law negligence claim.
IT IS SO ORDERED.