Opinion
Case No. 99-2273-JWL.
January 9, 2002
MEMORANDUM AND ORDER
This 42 U.S.C. § 1983 action arises out of an attack on a prison guard by an inmate at the Wyandotte County Detention Center. Plaintiff Eugene Poe, a former security guard at the detention center, filed this civil rights action alleging that defendants' failure to follow internal safety procedures as well as their allegedly willful and negligent retention of an employee directly caused plaintiff to be severely beaten by an inmate, and that such conduct violated plaintiff's substantive due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. On November 23, 1999, this court denied defendants' motion to dismiss on the condition that plaintiff file an amended complaint in accordance with this court's order before December 6, 1999. Poe v. Wyandotte County/Kansas City, Kansas City Unified Gov., et al., 1999 WL 1096049 (D.Kan. Nov. 23, 1999). Following plaintiff's timely filing of his first amended complaint, defendants filed another motion to dismiss. On March 17, 2000, this court denied defendants' motion to dismiss plaintiff's first amended complaint. Poe v. Wyandotte County/Kansas City, Kansas City Unified Gov., et al., 2000 WL 382038 (D.Kan. March 17, 2000). This matter is presently before the court on defendants' motion for summary judgment (Doc. 76). Defendants' motion is granted because plaintiff has failed to provide evidence sufficient to create a genuine issue of material fact for trial on his substantive due process claim.
I. BACKGROUND
The following facts are undisputed unless otherwise noted, or, if disputed, are viewed in a light most favorable to the plaintiff. Plaintiff began work as a deputy sheriff at the Wyandotte County Detention Center, otherwise known as the Wyandotte County jail ("the jail"), on February 21, 1997. Prior to starting at the jail, he had completed a 200-hour training academy consisting of 160 hours of classroom work and 40 hours of on-the-job training. Following his hiring, he was given two months of on-the-job training as a guard in the jail. He worked with experienced guards throughout the jail and attended training sessions. He concluded his training around the end of May, 1997. After completing his training, plaintiff was assigned to work in the pods by himself. On June 21, 1997, he was assigned by himself to the F pod, a maximum security pod, where he was attacked by an inmate, Andre Robinson. The attack spurred this cause of action against three defendants: (1) the Unified Government of Wyandotte County/Kansas City, Kansas; (2) Michael Dailey; and (3) Julius B. Hopkins. Defendant Michael Dailey was the Sheriff of Wyandotte County, Kansas. Defendant Julius Hopkins was employed as the Jail Administrator. Together, defendants Dailey and Hopkins were responsible for the day-to-day operations of the jail on the day that plaintiff was attacked.
One of the employees at the jail, Telicia White, began working as a Program Assistant at the end of May, 1997. As a Programs Assistant, Ms. White's duties included delivering and picking up legal materials from the inmates. One of the inmates at the jail was Andre Robinson. He was brought to the jail awaiting trial on the charge of rape. He was housed in the F pod, a maximum security part of the jail. Approximately one week prior to June 21, 1997, the day plaintiff was attacked by Mr. Robinson, plaintiff witnessed Mr. Robinson and Ms. White smiling, giggling and flirting in the hallway of the jail used to transport prisoners from the jail to the courthouse. He testified at his deposition that he wrote a report on the incident and gave it to Ms. White's supervisor, the Programs Director, Brad Ratliff. At the time he gave Mr. Ratliff the report, plaintiff said that he told Mr. Ratliff about the incident and Mr. Ratliff replied that he would look into the matter. Defendants Hopkins and Dailey both testified at their depositions that they never saw a report nor did they ever become aware that Mr. Robinson and Ms. White were fraternizing.
Mr. Ratliff testified at his deposition that he never received a report from plaintiff and that plaintiff never approached him about the fraternizing incident. For purposes of this motion, the court will, of course, view the evidence in the light most favorable to the plaintiff.
Plaintiff was not scheduled to work the day of the attack; however, the sergeant on duty the day before asked plaintiff to work overtime the following day, and plaintiff agreed. Plaintiff reported to work the next day for the second shift, which started with roll call at 8:00 a.m. and ended at 4:30 p.m. Sergeant Walter Dobbs was the supervisor for the second shift that day. It was his first day as a supervisor. As the shift supervisor, Sergeant Dobbs was responsible for assigning guards to fill vacancies created if the guard scheduled to work that post did not show up or called in sick. Sergeant Dobbs assigned plaintiff to the F pod that morning because Deputy Whitlock called in sick. Sergeant Dobbs told plaintiff about the assignment during roll call. Plaintiff testified at his deposition that he questioned Sergeant Dobbs about the assignment because it was plaintiff's understanding that you needed one year of experience prior to being assigned to a maximum security pod. Plaintiff testified that Sergeant Dobbs replied that he would be fine because it was Saturday and nothing should happen. Neither defendants Hopkins nor Dailey were working at the jail on that Saturday morning, neither talked to Sergeant Dobbs prior to his decision to assign plaintiff to the F pod and neither knew that plaintiff had been assigned to that pod.
Sergeant Dobbs testified at his deposition that plaintiff did not speak to him that morning about his assignment to the F pod.
The F pod is located on the fifth floor of the jail. To gain access to the pod, it is necessary to take the elevator to the fifth floor, walk down a hallway, and pass through a "slider" door into a small hallway or sally port. The slider door to the hallway is controlled by Central Control. The F pod and H pod are located on opposite ends of a connecting hallway. A door in the hallway leads to the F/H tower, which overlooks the two pods. Entry to the F pod is made through a second slider door. The slider door to the hallway and the slider door to the F pod cannot be opened at the same time. One must be closed before the other is opened. The slider door to the F pod can be controlled by the officer in the pod and by Central Control. A large desk with a control panel is located near the entrance to the F pod. The control panel can be turned on and off with a key, which the pod officer has in his or her possession during the shift. A panic button is located in the middle of the control panel. If the panic button is pushed, it will shut off all the power to the control panel and activate a flashing light in Central Control. A yellow line runs on the floor around the control desk. The inmates are instructed to remain beyond the yellow line.
While working in the F pod on June 21, 1997, plaintiff carried a radio on his hip. It had a mercury switch which, if the radio tilted for more than a few seconds, would sound an alarm in Central Control. It also had an emergency button that, when pressed, caused an alarm to sound in Central Control. Officers at the jail did not carry guns and, prior to plaintiff's attack, did not carry OC spray. General Order 95.02 of the Sheriff's Department had become effective on September 15, 1995, and provided for the use of Chemical Agents (OC spray) but when defendant Hopkins became Jail Administrator in February, 1996, OC spray had not been issued. He began the process that would lead to the issuance of OC spray in July or August, 1996, but the OC spray was not budgeted until 1997 and was not issued to officers until July, 1997, after plaintiff's attack.
Prior to 4:00p.m., plaintiff's day in the F pod was largely uneventful. Then around that time, Ms. White arrived outside the door to the F pod to pick up books from three of the inmates, including Mr. Robinson. Plaintiff opened the door to the pod from the control panel and Ms. White came into the pod. She stopped between the door and the control panel desk. Plaintiff unlocked the cell doors of the three inmates from the control panel and let the inmates out of their cells. Two of the three inmates brought their books to Ms. White and returned to their cells.
Mr. Robinson gave Ms. White his book but instead of going back to his cell, he engaged in a conversation with her. Plaintiff, who was seated behind the control desk, could see Mr. Robinson to his left using his peripheral vision. While remaining seated, plaintiff told Mr. Robinson to lock down three times. Disregarding these orders, Mr. Robinson approached plaintiff on the side or front of the control desk, in the process crossing the yellow line. Despite Mr. Robinson's movement, plaintiff did not call for assistance. Instead, plaintiff stood up and told Mr. Robinson that he needed to lock down. Mr. Robinson backed away and resumed his conversation with Ms. White. Plaintiff again told Mr. Robinson to go to his cell. This provoked Mr. Robinson to again approach plaintiff, causing plaintiff to kill the power to the control panel by turning the key. He testified at his deposition that he did this because he did not want Mr. Robinson taking control of the pod. He then placed the key in his pocket and backed up. Mr. Robinson followed him back. Plaintiff again ordered Mr. Robinson to lock down, or if he did not, plaintiff would summon officers to the F pod to help lock him down. Mr. Robinson replied, "why are you all messing with me?" Plaintiff then approached Mr. Robinson and explained what would happen to him if he did not lock down. Then Mr. Robinson said, "check yourself," and struck plaintiff in the head, causing him to fall to his knees. Plaintiff cannot explain why his radio alarm did not go off when he fell to the floor, but he may have taken it off of his belt. Once plaintiff was on the floor, Mr. Robinson began striking his head against the concrete floor, causing plaintiff's vision to blur. At that point, plaintiff turned to Ms. White, who was located near the slider door, and told her to call for help. Ms. White keyed her microphone and began screaming into it. Because plaintiff had turned the power to the control panel off, Ms. White was not able to open the slider door to the F pod.
Kurt Brandon, the officer on duty in the H pod at that time, had just finished locking down the pod and had received instructions to go into the F/H tower to watch over the pods until he was relieved. As he approached the tower door located between the F and H pods, he heard a female voice screaming from the F pod. Mr. Brandon described the screaming as "a plain like a yell, just aahhh" and as "loud shrieking — I mean shrieking." Mr. Brandon ran to the F pod slider door window and saw plaintiff on his knees with his back to Mr. Brandon. Mr. Robinson was grasping plaintiff's neck and pounding his head into the pavement. Mr. Brandon immediately yelled into his radio to open the F pod, but nothing happened. Mr. Brandon likely had trouble getting through to Central Control because Ms. White was yelling into her radio for help. After approximately 20 seconds the door to F pod was opened by Central Control and Mr. Brandon rushed over to Mr. Robinson. Mr. Robinson immediately punched Mr. Brandon in the left eye, momentarily dazing him. Mr. Brandon retreated and pick up a broom, threatening Mr. Robinson with it. Mr. Brandon dropped the broom and attacked Mr. Robinson. Mr. Robinson leaned Mr. Brandon backward over the control desk and began punching him in the side. Plaintiff, apparently regaining consciousness, saw that Mr. Robinson was stabbing Mr. Brandon with a utility closet key. He grabbed Mr. Robinson's arm to prevent further stabbing.
As Mr. Brandon was hearing Ms. White's screams from the tower door, five floors below in the lieutenant's office, Sergeant Dobbs heard a female voice over the radio screaming, "help, he's killing him," and "help, get somebody up here." Sergeant Dobbs and several other deputies ran to the kitchen, located on the same floor, thinking that the screaming was coming from there. The kitchen supervisor informed them it was not her on the radio. About that time, Sergeant Dobbs again heard a woman screaming, "get somebody up here, help," and then "code 1000 to F pod," meaning an officer needs assistance in the F pod. Sergeant Dobbs and the other deputies immediately ran to the elevator, went to the fifth floor and entered the F pod, eventually subduing Mr. Robinson. Plaintiff's attack happened to occur during a shift change so there were extra officers present. These officers were able to assist Mr. Brandon in subduing Mr. Robinson.
As help arrived to control Mr. Robinson, Ms. White left the jail and went home. She later told her supervisor, Brad Ratliff, that she was terrified, rattled and left the building because she was scared. After realizing that Ms. White had gone home, Mr. Ratliff ordered her to return to the jail immediately. Ms. White wrote a report of the attack that day but the detective in charge of the investigation told her to rewrite the report because it did not include enough detail. The detective later took a statement from Ms. White that became part of the investigative file. Throughout this statement Ms. White referred to plaintiff as "Poe" or "Officer Poe" and to Andre Robinson as "Andre." Subsequent to plaintiff's attack, starting around July, 1997, Mr. Ratliff began to receive information from Sergeant Dobbs that Ms. White was spending too much time at Mr. Robinson's cell door. Thereafter, Mr. Ratliff received similar concerns from Sergeant Pierce and Joni Mumma. Ms. White was never considered a suspect in the sheriff's department investigation into the attack on plaintiff.
Finally, while plaintiff alleged in his First Amended Complaint and the Pretrial Order that defendants Hopkins and Dailey were aware of death threats contained in written communications between Mr. Robinson and Ms. White, plaintiff did not provide any evidence that death threats were made prior to plaintiff's attack. There was evidence that Mr. Robinson made death threats against plaintiff after the attack when he learned that plaintiff was going to testify against him in his criminal trial.
II. SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, the movant may simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
III. ANALYSIS
Defendants move for summary judgment pursuant to Rule 56(c), arguing that plaintiff has not presented an actionable claim of deprivation of due process under section 1983. Specifically, defendants contend that plaintiff has failed to allege sufficient facts from which a reasonable fact-finder could infer that defendants' conduct constituted a deprivation of plaintiff's substantive due process rights. Defendants also argue that even if the court finds that plaintiff has provided facts sufficient to state a constitutional claim, defendants Dailey and Hopkins are shielded from liability on plaintiff's Section 1983 claim by qualified immunity because, at the time the claim arose, it was not clearly established under the law of the Tenth Circuit.
A. Substantive Due Process Claim
Plaintiff's claim relies on the substantive component of the Due Process Clause that protects individual liberty against certain government actions. "Generally, state actors are liable under the due process clause only for their own acts and not for the violent acts of third parties," Liebson v. New Mexico Corr. Dep't, 73 F.3d 274, 276 (10th Cir. 1996) (citing Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995)), but the Tenth Circuit has recognized two exceptions to this rule: (1) the special relationship doctrine; and (2) the danger creation theory. Id. Plaintiff's claim rests on the danger creation theory. The Tenth Circuit has explained that a state may be liable for an individual's safety "if it created the danger that harmed the individual. . . ." Uhlrig, 64 F.3d at 572.
"[T]he danger creation theory must ultimately rest on the specifics of a substantive due process claim, i.e., a claim predicated on reckless or intentionally injury-causing state action which `shocks the conscience.'" Id. In Uhlrig, the Tenth Circuit articulated a five-part test to determine the applicability of the "danger creation" theory:
Plaintiff must demonstrate that (1) [Plaintiff] was a member of a limited and specific definable group; (2) Defendants' conduct put [Plaintiff] . . . at substantial risk of serious, immediate and proximate harm; (3) the risk was obvious or known; (4) Defendants acted recklessly in conscious disregard of that risk; and (5) such conduct, when viewed in total, is conscience shocking.Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th Cir. 1998) (quoting Uhlrig, 64 F.3d at 574)). To bring the Uhlrig test in line with the Supreme Court's decision in Deshaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 201 (1989), the Tenth Circuit held in Armijo that "a plaintiff must also show that the charged entity and the charged individual defendant actors created the danger or increased the plaintiff's vulnerability to the danger in some way." 159 F.3d at 1263.
Even assuming that plaintiff could satisfy the first four elements of the Uhlrig test, his claim fails because it cannot be viewed as "conscience shocking." The Tenth Circuit has explained that to satisfy "the shock the conscience" standard, "a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power." Uhlrig, 64 F.3d at 574. Rather, "the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Id. The "shock the conscience" standard "requires a high level of outrageousness, because the Supreme Court has specifically admonished that a substantive due process violation requires more than an ordinary tort and that merely allowing unreasonable risks to persist in the workplace is not necessarily conscience shocking." Id.
In this court's March 17, 2000 Memorandum and Order denying defendants' motion to dismiss, the court concluded that plaintiff's allegations in his First Amended Complaint were sufficient to support a danger creation theory claim. Plaintiff alleged, in his complaint, that defendants had knowledge of a relationship between Ms. White and Mr. Robinson and of death threats that the couple had made against plaintiff in a written communication. Yet despite this knowledge, they placed Ms. White in a position to effectively prevent plaintiff from either escaping the situation or obtaining assistance once the attack occurred. This court reasoned that if defendants knew of such a conspiracy, ignored it and chose to place plaintiff in the middle of that conspiracy, that would be conscience shocking.
Now, on defendants' motion for summary judgment, plaintiff must come forward with evidence to support his allegations. He has failed to do so. There is no evidence that either defendant Hopkins or Dailey was aware of a relationship between Ms. White and plaintiff. Nor is their evidence they were aware of any death threats made by Ms. White or Mr. Robinson. In fact, there is no evidence that a death threat was made against plaintiff until after the June 21, 1997 attack. There is also no evidence to support a theory that Ms. White participated in the attack against plaintiff. While there is evidence that Ms. White's screams into her microphone may have delayed Mr. Brandon's ability to enter the F pod by approximately 20 seconds, the uncontroverted evidence indicates that she was trying to obtain help for plaintiff. Moreover, there is no evidence to support the theory that Ms. White controlled access to the pod because, contrary to plaintiff's allegations, Mr. Poe and Central Control were the only two parties that regulated access to the pod. It was plaintiff who made the decision to turn off the control panel in the F pod instead of contacting Central Control for assistance. Finally, Ms. White was never implicated in the criminal trial against Mr. Robinson which arose from this incident. There simply is no evidence in the record that Ms. White conspired with Mr. Robinson in the attack on plaintiff.
Sergeant Dobbs testified that he heard Ms. White scream over the radio, "help, he's killing him," and "help, somebody get up here."
Plaintiff bases his theory that Ms. White conspired with Mr. Robinson to attack plaintiff, in large part, on evidence that Ms. White and Mr. Robinson had a relationship prior to and after the attack. Specifically, he points out that he wrote a report to Ms. White's supervisor regarding fraternizing behavior and then after the attack there were reports that Ms. White was spending too much time at Mr. Robinson's cell. Further, Ms. White left the jail immediately after the attack and had to be called back to work by her supervisor. Later, Ms. White had to write her report regarding the attack twice because her first report was not detailed. While this evidence may be sufficient to infer that Ms. White and Mr. Robinson had a relationship prior to the attack, it is not sufficient to establish that she was participating in the attack. The uncontroverted evidence of her actions during the attack, as described by plaintiff and other officers involved, negates the assertion that she aided Mr. Robinson in any way.
This leaves plaintiff with his generalized allegations that defendants' actions left plaintiff in an unsafe work environment. Specifically, plaintiff contends that defendants violated his substantive due process rights by assigning him to work in the F pod when he had less than one year of experience, by failing to allow him to carry a gun or OC spray on duty and by under staffing the jail. Under Tenth Circuit case law, these allegations do not rise to the conscience shocking level.
Plaintiff and Detective Dennis Davis, the detective investigating plaintiff's attack, both testified at their depositions that there was a written department policy that a guard must have one year of experience before being assigned to a maximum security pod. Plaintiff, however, did not produce a written policy. Major Bond testified that there was not a department policy; instead, it was an unwritten preference. For purposes of this motion, the court will view the evidence in the light most favorable to the plaintiff and assume a written policy existed.
Plaintiff's evidence that the jail was understaffed on the day of the attack consists of Major Bond's testimony at his deposition that there had only been one week since the jail opened that it had not been operating short staffed, and Sergeant Dobbs testimony at his deposition that the E/G tower and F/H towers were not occupied because those guards were instead used as "rovers." He added that the tower positions are not regularly staffed.
The Tenth Circuit, on at least three occasions, has rejected similar allegations, finding them insufficient to be conscience shocking. First, in Liebson v. New Mexico Corr. Dep't, 73 F.3d 274 (10th Cir. 1996), the plaintiff was a community college librarian under contract to provide library services to inmates housed in the maximum security unit of the New Mexico Penitentiary. Id. at 275. A prison guard had been present in the library at all times that the plaintiff was on duty until the prison administrators changed the library hours and the schedule of the library guard. Id. A few days after the change, the plaintiff was working without a guard when she was kidnaped and sexually assaulted by an inmate library assistant. Id. The court held that the danger creation theory "is inapplicable under the alleged facts." Id. at 276. "Although Ms. Liebson has alleged the defendants acted negligently in changing the hours of the library and removing the corrections officer, . . . we are not convinced that Ms. Liebson has alleged any conduct that was so egregious, outrageous, and fraught with unreasonable risk so as to shock the conscience." Id. (internal quotations omitted).
Similarly, in Maine v. Oklahoma Dep't of Corr., No. 97-6027, 1997 WL 602688 (10th Cir. Sept. 30, 1997), the plaintiff was working as a prison librarian when she was raped and assaulted by an inmate while alone on duty in the library. Id. at *1. Previously, she had complained to prison officials on numerous occasions about the lack of safety in her library. Id. Specifically, she complained that security officers were not making their rounds to periodically check the library and that her telephone was sometimes not working for days at a time. Id. She also complained that inmates who had displayed overt sexual behavior toward her in the library were never disciplined. Id. She had requested, but never received, a body alarm or two-way radio to protect her. Id. Although the prison warden did direct the chief of security to increase the number of security checks, they were never increased. Id. In fact, the prison policy statement required officers to check the library at least once an hour, yet the records from the last 30 days preceding the plaintiff's assault documented that security officers checked the library only once a day on 22 of those days, and only twice a day on the other eight days. Id. Despite this evidence, the Tenth Circuit upheld the district court's grant of summary judgment because the defendants' conduct was not conscience shocking. Id. at *5. The court reasoned that the evidence supported, at most, a claim that the defendants' actions in failing to provide a reasonably safe work environment were negligent but the lack of security provided to the plaintiff did not equate to a constitutionally arbitrary deprivation of her life or liberty. Id. The record established that the prison lacked sufficient officers to make the security checks on the library and the prison did not have the funds to provide its employees with sufficient two-way radios. Id. Quoting the district court, the circuit court pointed out that "there is no evidence that defendants intentionally isolated plaintiff or took affirmative steps to place her in danger. . . ." Id.
Lastly, in Martinez v. Uphoff, 265 F.3d 1130, 2001 WL 109250 (10th Cir. Sept. 18, 2001), the widow and child of a state prison guard who was attacked and murdered in the maximum security unit by three inmates attempting to escape brought a section 1983 action against the prison, its director and the prison warden. Id. at *1. She alleged that the defendants violated the due process clause by deliberately failing to ensure proper training and supervision of prison personnel, failing to provide adequate and safe staffing to protect the guards at the jail. Id. The plaintiffs claimed that the prison officials knew or should have known that a prisoner escape was planned, that they did know of the violent tendencies of two of the three inmates involved in the murder and that they were aware that the prison was overcrowded and under staffed in the maximum security unit. Id. Affirming the district court, the circuit court pointed out that the plaintiffs failed to provide facts which would connect the prison's deficiencies to the death of the prison guard. Id. at *3. The court added that there was no evidence that "he or any other guard was not aware of the mental states or violent propensities of inmates confined in the Maximum Security Unit." Id. (internal quotations omitted). Finally, the court stated that under the circumstances of the case, "inaction in the face of known dangers or risks [was] not enough to satisfy the danger-creation theory's conscience shocking standard." Id.
Liebson, Maine and Martinez illustrate that generalized claims pertaining to unsatisfactory work conditions will not suffice for a danger creation theory claim because they do not meet the shock the conscience standard. The Tenth Circuit cases are consistent with the Supreme Court's pronouncement that "[t]he Due Process Clause is not a guarantee against incorrect or ill-advised personnel decisions,' . . . [n]or does it guarantee municipal employees a workplace that is free of unreasonable risks of harm." Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992) (citations omitted). In Collins, the Court pointed out that it had "previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law." Id. The Court added that the decisions regarding the allocation of resources to individual programs, and to different aspects of each program, involve "a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country." Id.
Consistent with these notions, in Uhlrig, the court explained that three basic principal's have been highlighted by the Supreme Court with regard to substantive due process claims: (1) the need to have restraint in defining their scope; (2) the recognition that section 1983 is not intended to replace state tort law; (3) the desire to defer to local policymaking bodies in making decisions having an impact on public safety. 64 F.3d at 573.
Plaintiff contends that his facts are analogous to L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), a Ninth Circuit case where the court reversed the district court's decision to grant the defendant's motion to dismiss the plaintiff's substantive due process claim. Id. at 120. In Grubbs, the plaintiff was a nurse employed by the State of Oregon at a medium security custodial institution for young male offenders. Id. Although the plaintiff's supervisors assured her that she would not work alone in the medical clinic with violent sex offenders, her supervisors selected a known violent offender inmate to work alone with her. Id. at 121. Once alone, the inmate battered, assaulted, kidnaped and raped her. Id. at 120. In concluding that the plaintiff had asserted an actionable section 1983 claim, the Ninth Circuit noted that in her complaint, the plaintiff alleged that the defendants knowingly assigned her to work
with the inmate despite their knowledge that the inmate was not qualified to work in the clinic, the inmate had an extraordinary history of violence against girls and women, the inmate was likely to assault a female if left alone with her, the plaintiff and inmate would be alone together and the plaintiff would likely not be able to defend herself against the inmate's attack. Id. at 121.
The court is not persuaded by Grubbs for a number of reasons. Of course, because Grubbs was decided by the Ninth Circuit, and not the Tenth Circuit, it is not binding upon this court. Moreover, although Grubbs discusses the deliberate indifference standard, at that time the Ninth Circuit had not enunciated the type of extensive, "5+1"-part "danger creation" test as articulated in Uhlrig and its progeny, and thus the analysis set forth in Grubbs understandably does not address the elements of the danger creation theory as recognized by the Tenth Circuit. Finally, and most importantly, the court finds the facts in Grubbs to be distinguishable from those alleged in the case at bar. Specifically, Grubbs involved the defendants placing the plaintiff alone at a time when they knew the particular inmate she was placed with was likely to assault a female if left alone with her. The plaintiff was left defenseless. In contrast, here plaintiff was fully aware of the situation that he was entering. While he did testify at his deposition that he questioned his assignment to the F pod, he nonetheless agreed to take the position. Moreover, there is no evidence that defendants Hopkins and Dailey were aware of any problems between plaintiff and Mr. Robinson or of a conspiracy between Ms. White and Mr. Robinson to attack plaintiff.
In a subsequent appeal after one defendant was found, by a jury, to have violated the plaintiff's substantive due process rights, the Ninth Circuit did adopt, at least in part, the Uhlrig test. L.W. v. Grubbs, 92 F.3d 894, 898 (9th Cir. 1996). At trial, the court had applied a gross negligence standard instead of the higher deliberate indifference standard. Id. This underscores the point that, at the time the Ninth Circuit determined that the plaintiff had an actionable claim, it was not applying a standard comparable to the Uhlrig test.
In sum, plaintiff's claim cannot stand. He was not placed in an unreasonably dangerous situation unable to defend himself. He chose to be a prison guard and he chose to accept his assignment on the day of the attack. There is no evidence that defendants were aware that plaintiff would be facing dangers any different than any other guard encounters in a maximum security pod any other day. Plaintiff had in his possession a radio with a mercury switch and a panic button and he was located at a control panel with a panic button linked to Central Control. It is unfortunate that the attack on plaintiff occurred, but defendants' actions were not the cause of the attack nor did they prevent plaintiff from obtaining help. Plaintiff chose to turn off the control panel, effectively isolating himself from Central Control and trapping himself in the F pod with an angry inmate. Instead of calling for help when the inmate initially approached him, plaintiff made a poor decision and tried to handle the inmate by himself. After plaintiff realized that Mr. Robinson was going to attack him, it was too late. Given these circumstances, defendants' actions were not "so egregious, outrageous, or fraught with unreasonable risk so as to shock the conscience." Liebson, 73 F.3d at 276.
B. Qualified Immunity
Because plaintiff has failed to provide sufficient facts to create a genuine issue of material fact on his substantive due process claim, the court need not address defendants' qualified immunity defense.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion for summary judgment (Doc. 76) is granted.
IT IS SO ORDERED.