Summary
deciding a “halfway house” could be sued under § 1983 because its actions with regard to the plaintiff were in relation to his court-ordered confinement there
Summary of this case from Baker v. ChandlerOpinion
Civil Action No. 3:96CV-471-S
September 29, 1999
MEMORANDUM OPINION
This matter is before the court on motions of the defendants, Dismas Charities, Inc. "Dismas"), Jefferson County, and Jefferson County Corrections Department (collectively "Corrections") for summary judgment.
Reference will be made to "Corrections" collectively throughout this opinion referring to Jefferson County and the Corrections Department. The court rejects the argument that Jefferson County Corrections Department should be dismissed on the ground that it is not the final policy maker for Jefferson County. A genuine issue of material fact exists with respect to which party or parties were responsible for the formulation and implementation of the incarceration policies and procedures in issue in this case. The defendants have stated no more than that the fiscal court gives final approval to the county corrections operations. The motion to dismiss the Corrections Department will be denied at this time. Dismas, Jefferson County, and the Corrections Department will be referred to collectively as "the defendants" where appropriate. Ricky France has taken no part in these summary judgment motions.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
I. Facts
This action arises from the following evidence viewed in the light most favorable to the plaintiff, Pertina Ford ("Ford"). This evidence also stands undisputed as between the parties to these motions.
Ford cohabited with the defendant, Ricky France ("France"), for a period of time during which Ford was physically abused. (Ford depo., pg. 27). In January of 1993, France was allegedly no longer residing with Ford. On January 6, 1993, Ford reported that when France came to the home to pick up his clothes, he threatened to kill her and himself. She stated that he returned to the home later that same day, grabbed a knife and again threatened to kill himself, then threw her on the bed and threatened to rape her. When Ford's mother arrived, France left the home. (1/7/93 Domestic Violence Petition). Ford obtained a domestic violence emergency protective order on January 7, 1993 prohibiting France from committing further acts of violence or destruction of property, and prohibiting him from coming within 1,000 feet of her. (1/7/93 Emergency Protective Order).
In July of 1993, France was convicted of fourth degree assault on Ford. (See Transcript of Criminal Record, Louisville Division of Police). She claimed that he hit her in the face with his fists causing bruising, and that he had been arrested for this conduct previously. (6/25/93 Police Report). On March 30, 1995, Ford obtained another domestic violence emergency protective order against France for purportedly entering her home and threatening her with a butcher knife, as well as for other incidents of harassment. (3/30/95 Domestic Violence Petition and Emergency Protective Order). She stated that she did not report this most recent entry into her home to the police, as France left voluntarily. In April of 1995, France was arrested for violating the second protective order and was sentenced to thirty days' confinement with work release. (4/7/95 Domestic Violence Order and Order of Commitment). France was selected for placement at Dismas Charities' Portland Facility ("Portland") to serve his sentence.
On April 10, 1995, France began work release from Portland. He was placed on five days' total house restriction on April 18, 1995 for violation of his work release privileges. (April 1995 staff notes). On April 25, 1995, Ford reported to Portland that France had come to her house at 3:30 p.m. (April 1995 staff notes). On April 30, 1995, France was apprehended by the police in the basement of Ford's home, after having entered through a window. France was charged with Escape II, and was incarcerated at Community Corrections Center until May 19, 1995. On May 15, 1995, Judge Nicholson sentenced France to serve sixty days on the charge of Attempted Escape, a misdemeanor, and added "No Releases" to his order of commitment. (5/15/95 Order of Commitment). Ford alleges that while France was incarcerated at Community Corrections Center, she had contacted Sherry Williams, Dismas' court liaison, expressing fear that France would be released from the center. Ford claims that Williams assured her that he would not be released from the corrections center. In late May, however, France was again transferred to Portland, and he was permitted to leave the facility under a community service program. On June 13, 1995, while released to the supervision of Crossover Mission on community service assignment, France allegedly escaped, broke into Ford's home and raped her.
II. The Claims
In this action, Ford alleges violations of 42 U.S.C. § 1983, and state law claims of negligence and breach of a third-party beneficiary contract. France is also named as a defendant for his purported violence against Ford.
Ford has alleged that Dismas and Corrections act cooperatively to place inmates at Portland. The defendants have not refuted this contention. The parties do not dispute that France was ineligible to serve his sentence at Portland. Portland may not house inmates with past felony convictions, or misdemeanor convictions of which violence is an element. France had a number of prior felony convictions outside Jefferson County, including in Warren County on July 25, 1979 for first degree sexual abuse and on February 19, 1981 for first degree rape and third degree assault. At the time of the April 7, 1995 commitment order entered for violation of Ford's protective order, France already had a fourth degree assault conviction in Jefferson County for physically abusing Ford in July of 1993.
The defendants admit that a form of a "screening process" is used to determine whether individuals will be placed in a Dismas facility. Ford claims that inmates with felony or violent misdemeanor convictions are regularly found to be eligible for placement at Portland, due to the defendants' inadequate and ineffective system, policies and procedures for determining an inmate's criminal history and appropriate placement. Ford contends that it is the policy and practice of the defendants to rely solely on a purportedly deficient Jefferson County database for obtaining criminal history information. No further inquiry beyond reference to this database is made. Further she contends that criminal history is routinely deliberately disregarded by the defendants, as evidenced particularly by France's placement at Portland despite his assault conviction in 1993.
Additionally, Ford alleges that France became ineligible under Dismas' own policies for further incarceration at Portland after his escape conviction, as this conduct was in violation of the Portland house rules by which France was required to abide while assigned there. France was returned to the facility. France was also purportedly ineligible for release during his last assignment to Portland, as the order of commitment signed by Judge Nicholson stated "no releases." While defendants argue that a significant distinction exists between community service and work release, Ford has provided the affidavit of Judge Nicholson who states that "no release" in his order of confinement meant no release of any kind. Ford has argued that Dismas and Corrections deliberately disregarded this order in arranging for France's return to Portland and to community service participation.
Ford charges both Dismas and Corrections with knowledge of the particular risk to her safety fostered by their actions. She alleges that they were aware of the danger to her 1) through the charges for which France was ordered to confinement — she was his repeated victim, and had been so identified, and 2) through her direct contact with the Dismas court liaison, the individual purportedly responsible for the final decision to assign France to Portland, and with whom corrections communicated.
III. State Action
With respect to the conduct in issue in this case, Dismas can be sued under 42 U.S.C. § 1983 as a state actor under the authority of Skelton v. Pri-Cor, Inc., 963 F.2d 100 (6th Cir. 1991). In incarcerating inmates, Dismas is "performing a public function traditionally reserved to the state," and thus acts as an agency or instrumentality of the state subject to the same constitutional limitations. Skelton, 963 F.2d at 102, citing, Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). Dismas' actions with regard to France were in relation to his court-ordered confinement.
Clearly Corrections is a state actor. There has been no contention offered to the contrary. Therefore, both Dismas and Corrections are proper parties to this action under § 1983.
IV. State Law Claims
The state law claims of negligence and breach of contract against the defendants will be dismissed.
With respect to Corrections, municipal liability may only be imposed if Ford establishes that Corrections deliberately chose a course of action which was constitutionally inadequate. Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Claims of negligence are insufficient to impose liability upon Corrections.
With respect to Dismas, Ford argues, in the alternative, that Dismas, as a private corporation, breached various duties owed to her under state law. However, Ford has not alleged any facts from which a jury could conclude that Dismas was acting other than as an arm of Jefferson County with respect to its confinement of France. Its conduct as a corrections facility forms the basis of Ford's claims in this case. Therefore, the state law claims against the defendants will be dismissed.
V. § 1983 Liability
After review, we conclude that the § 1983 claims against Dismas and Corrections survive the summary judgment motions.
a. State-Created Danger
The defendants urge that Ford's § 1983 claim must fail, as they owed no duty to the general public to provide protection from violent inmates. However, the general rule enunciated in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) does not apply under the facts of this case.
A number of circuits, including the Sixth Circuit, have recognized a "state-created danger" exception to the general rule that a state has no duty to protect citizens from private acts of violence. In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the United States Court of Appeals for the Sixth Circuit noted that
The liberty interests preserved by the Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth Amendment, include "those privileges long recognized as essential to the orderly pursuit of happiness by free men." . . . Among the historic liberties long cherished at common law was the right to be free from "unjustified intrusions on personal security." [citations omitted].Kallstrom, 136 F.3d at 1062. In the Kallstrom case, the court found that the rights of certain undercover police officers were violated when their addresses, photographs and family information were released to counsel for a group of violent gang members. The court held
In light of the Short North Posse's propensity for violence and intimidation, the district court found that the City's release of the plaintiffs-appellants' addresses, phone numbers, and driver's licenses to defense counsel in the Russell case, as well as their family members' names, addresses, and phone numbers, created a serious risk to the personal safety of the plaintiffs and those relatives named in the files . . .
We see no reason to doubt that where disclosure of this personal information may fall into the hands of persons likely to seek revenge upon the officers for their involvement in the Russell case, the City created a very real threat to the officers' and their family members' personal security and bodily integrity, and possibly their lives. Accordingly, we hold that the City's disclosure of this private information about the officers to defense counsel in the Russell case rises to constitutional dimensions . . .Kallstrom, 136 F.3d at 1063. The court went on to explain
Liability under the state-created danger theory is predicated upon affirmative acts by the state which either create or increase the risk that an individual will be exposed to private acts of violence . . . As explained by the Seventh Circuit, "if the state puts a man in a position of danger from private persons and the fails to protect him, it will not be heard to say that its role was merely passive . . . However, because many state activities have the potential to increase an individual's risk of harm, we require plaintiffs alleging a constitutional tort under § 1983 to show "special danger" in the absence of a special relationship between the state and either the victim or the private tortfeasor. The victim faces "special danger" where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large.Kallstrom, 136 F.3d at 1066.
Ford has alleged that she took the required steps to protect herself from further violence by France. France, a convicted rapist and batterer, was convicted of misdemeanor assault upon her. He violated two domestic violence protective orders taken out by her, and was ordered to confinement for that conduct. Yet he was not appropriately confined, and as a result, she was subjected to harm from his repeated violence. She alleges that the defendants, charged with implementing the court-ordered confinement, had an inadequate and ineffective system for screening inmates for placement, and thus failed their responsibility to be aware of France's prior convictions. She contends that it was the defendants' policy and practice to permit the placement of ineligible inmates in Dismas facilities and that the defendants deliberately disregarded the criminal history of violent inmates and court orders addressed to their custody. She claims that through these policies and practices France's ineligibility for placement at Portland was not discovered, and that he was repeatedly inappropriately placed. She claims that the defendants became aware of the special risk of harm to Ford when she reported to Dismas that he had violated his work release and had again entered her home. Yet even after his conviction for escape, having been found in Ford's home a second time, the decision was made to return France to Portland again and, in disregard of the "no releases" order, to send him on community service assignment. France's escape from this assignment allegedly culminated in the rape of Ford. Ford contends that her right to personal security and bodily integrity were violated as a result.
We conclude that proof of these facts would permit a reasonable jury to find a state-created danger to Ford. Ford was not a member of the general public randomly subjected to violence by an escaped inmate. See, i.e., Commonwealth of Kentucky Corrections Cabinet v. Vester, 956 S.W.2d 204 (Ky. 1997).
Ford's circumstance is not comparable to that of Joshua, the abused child in the DeShaney case. There, the department of social services made no attempt to remove Joshua from the custody of his abusive father, lacking sufficient evidence to do so. After a life-threatening beating by his father, the child's mother brought a § 1983 claim alleging a constitutional violation in failing to intervene to protect the child. The court found in that instance that there was no duty to protect him from private violence. In the case at bar, Ford does not allege that the defendants failed to intervene to protect her from France, but rather that affirmative acts by the defendants created a special risk of danger to her for which they may be held liable.
b. Policy or Custom
The defendants contend that Ford cannot establish that a state created policy or custom caused her to suffer a constitutional injury. In a recent unpublished opinion of the Sixth Circuit, the state-created danger theory of liability was raised in a claim similar to the one before this court. Duvall v. Ford, 1999 WL 486531 (6th Cir. (Ky.)). In Duvall, Wanda Duvall was shot by her daughter's former boyfriend who had escaped three weeks earlier from a work release program. The inmate, Billy Joe Green had a history of violence. He had previously been arrested arrested for domestic violence when he assaulted his girlfriend. A year later, Green was arrested for assaulting his mother and was sentenced to a period of incarceration. Three days later, a judge assigned Green to a minimally supervised work release program, without first having reviewed his criminal record. After two weeks in the program, Green walked away from the facility. Three weeks later he fired five shots into Duvall's mobile home, permanently injuring her. The court quoted from Kallstrom that "only a plaintiff who establishes that the state must have known or clearly should have known that its actions endangered a specific individual will be able to sustain a claim based on the state-created or special danger theory." The court then concluded that Duvall had failed to establish that Marshall County officials knew or clearly should have known that assigning Green to a minimally supervised work release program would result in harm to the mother of Green's former girlfriend. The court found that the defendant's conduct was too attenuated from the harm to impose liability, and stated that "it is primarily for this reason that the state-created danger exception does not support Duvall's § 1983 claim." Id.
In contrast with Duvall, there is no attenuation here between the release of France and the violence upon Ford. A genuine issue of material fact exists regarding the policies and procedures that were in place at the time of Frances's assignment to Portland, and whether the system facilitated improper placement of violent offenders such as France, and placed Ford at special risk to her personal safety. France's assignment and reassignment to Portland, and a deliberate disregard for the "no releases" order are alleged to be the facilitating factor in Ford's injury. These facts, if proven, would support a § 1983 claim against either or both defendants.
Conclusion
The motions for summary judgment will be denied as to the § 1983 claims against the defendants, but will be granted as to the other claims against them.
Corrections has also moved for summary judgment on its cross-claim for indemnification against Dismas. It relies on an alleged contract between it and Dismas supposedly in effect at the pertinent times. While this purported contract is mentioned in the briefs, its existence has not been established either in the record or by affidavit. Rather Corrections has submitted a request for proposal and a later acceptance of bid form. It has failed to connect the two, nor has it provided a signed contract incorporating the terms of the request for proposal. We will not make the leap of faith that Dismas contracted for the terms contained in the request for proposal without a firmer basis for reaching such a conclusion. Dismas disputes the validity of the contract, but this dispute is, again, neither in the record nor supported by affidavit. On these facts, the motion for summary judgment on the cross-claim will be denied.
A separate order will be entered this date in accordance with this opinion.