Meyer v. McNicholas

Full title: JOHN MEYER, Plaintiff, v. BARBARA McNICHOLAS, et al., Defendants

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: May 14, 2009

Civil Action 2:07-CV-1253 (S.D. Ohio May. 14, 2009)

Opinion

Civil Action 2:07-CV-1253.

May 14, 2009

OPINION AND ORDER

NORAH KING, Magistrate Judge

Plaintiff, formerly incarcerated in the Southeastern Correctional Institution ["SCI"], alleges that defendant Barbara L. McNichols¹, formerly a Corrections Sergeant at SCI², acted with deliberate indifference to his safety in connection with an attack by other inmates in January 2006. With the consent of the parties, see 28 U.S.C. § 636(c), this matter is now before the Court on defendant's motion for summary judgment, Doc. No. 22. The Court concludes that there exist genuine issues of material fact, see F.R. Civ. P. 56(c), and that the motion for summary judgment is without merit.

1 The caption and pleadings apparently mis-spell defendant's name. See Deposition of Barbara L. McNichols, p. 4, Doc. No. 27.

2 Defendant has, since the events referred to in the Complaint, retired. Id., p. 10.

FACTS

While at SCI, plaintiff worked as a cook from 2:00 p.m. to 9:00 p.m. Deposition of John Meyer, p. 21, Doc. No. 21 [hereinafter " Meyer Depo."]. Certain other inmates in his dorm pressured plaintiff to steal food for them. Id., p. 23. Eventually, those inmates "roughed [him] up a little," and made threats against him. Id., p. 23. On the following day, plaintiff approached defendant, who was described as someone whom plaintiff could trust. Id. Plaintiff walked into defendant's office and "told her what was going to happen." Id., p. 35.

A. I told her I've seen several people kicking, breaking into people's lockers. She told me describe who, their names. I didn't know their names but I knew where they slept. She pulled out a bed roster and I pointed them out to her. Q. Pointed out where their beds were? A. Correct. Q. Ok. And then what? A. She wrote down on her calendar that she keeps on her desk. She was going to take care of it by the time — she asked me what time I went to work, and I told her what time, and she said she would take care of it and they would be in the hole before I got back from work. Id., pp. 35-36. Q. And did you tell Sergeant McNicholas [sic] anything else? A. I told her what was said to me. Q. And was it the same inmates that were breaking into boxes that were threatening you? A. Yes. Q. And did you tell the sergeant that they were the same people? A. Yes. Q. And what did she tell you about — what did she say to you when you told her that they were threatening you? A. She wouldn't tolerate that. That's why she told me they would be in the hole. Q. And how many inmates did you point out on the roster? A. Five. Q. So she told you that they would be in the hole by the time you got off work that night? A. Correct. Q. And what else did she tell you? A. That was it. Id., pp. 36-37.

Defendant testified on deposition that she did not recall such a conversation with plaintiff. Deposition of Barbara McNichols, pp. 88-89, 92, Doc. No. 27 [hereinafter " McNichols Depo."]. Had such a complaint been made, however, she would have prepared an incident report, placed the accused perpetrators in segregation pending an investigation and advised the corrections officer assigned to plaintiff's unit. Id., pp. 90, 92. If the ensuing investigation revealed a rules violation, she would have issued a conduct report. Id., p. 92.³ Had plaintiff told her that he had been kicked and punched the prior day, moreover, defendant "would have escorted him over to medical. . . . I would have had him checked out from top to bottom, I would have him write statements because he would have had to gave [sic] me some [information] as to who did this to you. . . ." Id., p. 93.

3 An inmate placed in security control for purposes of investigation would not be issued a conduct report during the period of investigation. Id., p. 70.

According to defendant, an inmate who makes a serious complaint of danger or asks for protection from other inmates would also be asked if he wanted "to go to PC, protective custody." Id., p. 59. She explained, however, that SCI did not actually offer a protective custody unit. ". . . I would put him in, down in the security control unit because he would be checking in." Id., p. 61.

A. In other words he'd be refusing to lock. That's what they do, they refuse to lock if they think something's going to happen to them. They come up to you and say I refuse to lock, I refuse to live here. * * * Q. What you call PC is really going to be disciplinary control? A. First, you have to tell me I'm refusing to lock in this dorm. Q. But that's the option? A. That's disciplinary. Q. So if you said to the inmate ok, if this is serious, if you're really worried about your safety, I can send you to disciplinary control. A. No. I would say, you're going to have to refuse to live here. Then, yes, I can do the disciplinary. Q. So he'd have to get a ticket? A. If he's refusing to lock, he's going to get a ticket for refusing to lock. Id., 61-62. If an inmate reported a threat of a sexual nature, defendant "would discuss it with him as to who and why, and then I would suggest, well, would you rather move to another wing or would you rather move out of this building, then I would have to take steps to do that." Id., p. 65. See also id., p. 67. She could also suggest that the inmate move to another bunk in the same living unit. Id., p. 66. Any report of a serious problem, however, would result in her preparation of an incident report and the opening of an investigation. Id., p. 68. See also id., p. 69.

If an inmate came to me, ma'am, and even to an officer and said, I'm being threatened and later on today or tonight, whatever, they're planning on beating me up, then you do your paperwork and you get one of them out of your dorm.

Id., p. 79. Defendant testified that she regarded as serious a report that an inmate had been kicked and punched. Id., p. 75. She also characterized a request that another inmate steal food as "extortion" — also a serious charge. Id., p. 76. She would not speak to the accused perpetrator first but would instead "do an incident report, take it to the captain's office and say hey, this has been reported to me, I think this guy should go down under investigation, at least for tonight. . . ." Id., p. 80.

Plaintiff initially testified on deposition that defendant did not ask him if he wanted protective custody. Meyer Depo., p. 37. However, he went on to testify:

Q. Do you remember her asking if you wanted to check in [to PC] and what did you say? A. I told her no. Q. And why didn't you want to check in? A. Because that goes on your conduct report as disobeying an officer. Id., pp. 37-38. Plaintiff explained that a conduct report would have been held against him in his custody battle for his son. Id., p. 38. "The judge said if I get a conduct report or in any trouble while I'm incarcerated, I won't have no chance of my son. If I did check into PC, it wouldn't say that on my conduct report. It would have said disobeying a direct order." Id.

Instead, plaintiff proceeded to report to his job in the kitchen. Id., pp. 39-40. He believed that the inmates who had threatened him "were going to be in the hole before I got back." Id., p. 39. When he returned to his living area at 9:00 p.m. for count, however, "[t]hey're still there." Id., p. 40.

During count, inmates are required to remain at their bunk. Plaintiff, assigned to the top bunk, was lying on his. Id., p. 42. Corrections officers in another wing performing the count could not see that area. Id., pp. 41-42. Five inmates approached plaintiff's bunk, held him down and punched him. An inmate named "Doughboy," id., p. 43, sexually assaulted plaintiff. Id., pp. 46-47. The incident ended when a corrections officer came to that wing to begin the count. Id., p. 47.

The incident was reported and plaintiff was escorted by a corrections officer to the infirmary. Id., p. 51.

STANDARD

The standard for summary judgment is well established. This standard is found in Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:

The judgment sought should be rendered forthwith if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). Pursuant to Rule 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact. . . ." Id. In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Catrett, 477 U.S. at 323. Once the moving party has met its initial burden, the burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56(e)); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6^th Cir. 1995) ("nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial"). "Once the burden of production has so shifted, the party opposing summary judgment cannot rest on the pleadings or merely reassert the previous allegations. It is not sufficient to `simply show that there is some metaphysical doubt as to the material facts.'" Glover v. Speedway Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-moving party "must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

In ruling on a motion for summary judgment "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Glover, 284 F.Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6^th Cir. 1989)). Instead, a "court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties." Id.

DISCUSSION

A prison official may be held liable under the Eighth and Fourteenth Amendments for acting with "deliberate indifference" to an inmate's safety if she knows that the inmate faces a substantial risk of serious harm and yet disregards that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825 (1994). See also Greene v. Bowles, 361 F.3d 290, 294 (6^th Cir. 2004). It is subjective recklessness, not obviousness, constructive notice or negligence, that constitutes the appropriate test for "deliberate indifference." Farmer v. Brennan, 511 U.S. at 835.

Defendant contends that she was not deliberately indifferent to a serious risk of harm to plaintiff and that, in any event, she is entitled to the protection afforded by the doctrine of qualified immunity.

Defendant specifically contends, first, that she was not deliberately indifferent to a substantial danger to Meyer because plaintiff failed to clearly communicate the risk of that danger to defendant. This Court disagrees. A fair reading of plaintiff's deposition testimony sufficiently establishes, for purposes of these summary judgment proceedings, that plaintiff advised defendant that certain other inmates — identified by the bunks in which they slept — had threatened plaintiff. See Meyer Depo., pp. 35-36. The fact that defendant does not recall such a conversation, see McNichols Depo., pp. 88-89, 92, does not resolve the issue in defendant's favor, nor does the fact that the record currently offers no corroboration of plaintiff's testimony. As to this issue, i.e., whether defendant was aware of a substantial risk of serious harm to plaintiff, the Court concludes that the record reflects a genuine issue of material fact.

Defendant also contends that she was not deliberately indifferent to the risk of harm to plaintiff because she took reasonable measures to protect plaintiff, as established by plaintiff's own testimony that defendant offered to place plaintiff in protective custody, an offer that plaintiff refused. This Court again disagrees and concludes that whether defendant acted reasonably in response to any subjective knowledge of danger to plaintiff is an issue to be left for determination by a jury.

As defendant's own testimony makes clear, she did not — and indeed could not — actually offer protective custody to plaintiff for the simple reason that SCI does not offer protective custody. The Court cannot conclude that resort to a fabricated disciplinary procedure in lieu of protective custody is, as a matter of law, a reasonable response to a risk of serious harm to an inmate. Particularly is this true where, as here, defendant had other options, including the removal of the accused perpetrators from the living unit, available to her. Indeed, plaintiff testified that it was this course of action that defendant assured him she would take. Meyer Depo., p. 37. Because there remain genuine issues of material fact on this issue as well, the Court concludes that the grant of summary judgment is inappropriate.

Finally, defendant claims the protections of the doctrine of qualified immunity. "The affirmative defense of qualified or good faith immunity shields `government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The burden of establishing that the constitutional right at issue was clearly established "`rests squarely with the plaintiff.'" Perez v. Oakland County, 466 F.3d 416, 427 (6^th Cir. 2006) (quoting Key v. Grayson, 179 F.3d 996, 1000 (6^th Cir. 1999)). In this regard, the plaintiff must establish that the right was clearly established "in light of the specific context of the case, not as a broad general proposition." Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

In this case, the facts alleged by the plaintiff, if proven, could constitute a violation of a constitutional right that was well established at the time the events at issue in this case are alleged to have taken place.

The Eighth Amendment, which prohibits infliction of "cruel and unusual punishment" encompasses the proscription of "deliberate indifference" to the serious needs of prisoners. . . . On several occasions we have held that "deliberate indifference" of constitutional magnitude may occur when prison guards fail to protect one inmate from an attack by another.

Doe v. Bowles, 254 F.3d 617, 620-21 (6^th Cir. 2001) (quoting Walker v. Norris, 917 F.2d 1449, 1453 (6^th Cir. 1990). Because there exist genuine issues of material fact as to defendant's subjective knowledge of the risk of harm to plaintiff and to the response to that risk, if any, by defendant, the Court cannot conclude that defendant is entitled to summary judgment on the basis of qualified immunity.

Accordingly, defendant's motion for summary judgment, Doc. No. 22, is DENIED.