DAVID D. NOCE, Magistrate Judge.
This action is before the court on the motions of defendants Mark Anthony Isgrig (Doc. 93) and George Lombardi and Angela Mesmer (Doc. 95) for summary judgment. The court heard oral argument on May 13, 2015.
Following earlier rulings in this case, plaintiffs Victoria Whittington, Maegen Bright, and Sondra Loness, allege that, while when they were sentenced Missouri state prisoners, defendant Isgrig, then a Missouri state correctional officer, intentionally and improperly touched their breasts for his sexual gratification when he conducted pat down procedures in the Missouri State Women's Eastern Reception, Diagnostic and Correctional Center (WRDC). Plaintiffs seek relief against Isgrig and two officials of the Missouri Department of Corrections, defendants Lombardi and Mesmer.
Before the court are plaintiffs' claims for relief against all three defendants in their individual capacities under the Eighth Amendment to the United States Constitution and under Missouri state common law:
(1) Counts 1, 8, and 16 allege against defendant Isgrig a violation of plaintiffs' Eighth Amendment right against cruel and unusual punishment;
(2) Counts 2, 9, and 17 allege against defendant Isgrig the Missouri common law tort of outrageous conduct;
(3) Counts 3, 10, and 18 allege against defendants Isgrig and Lombardi claims under the Eighth Amendment for a failure to train;
(4) Counts 4, 11, and 19 allege against defendants Lombardi and Mesmer a claim under the Eighth Amendment for their failure to protect plaintiffs out of deliberate indifference;
(5) Counts 5, 12, and 20, allege against all defendants a claim under the Eighth Amendment for a failure to protect out of gross negligence or reckless indifference;
(6) Counts 6, 13, and 21, allege against defendants Lombardi and Mesmer a claim under the Eighth Amendment for the deliberate failure to use adequate procedures; and,
(7) Counts 7, 14, and 22, allege against defendants Lombardi and Mesmer a claim under the Eighth Amendment for a failure to use adequate procedures out of reckless indifference or gross negligence.
Plaintiffs seek substantial actual damages, punitive damages, attorney fees, and costs.
Courts must grant summary judgment when the pleadings and the proffered evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The court must view the evidence in the light most favorable to the nonmoving party and accord it the benefit of all reasonable inferences.
The proffered evidence submitted on the motions for summary judgment indicates that the following facts are without genuine dispute.
Defendant Mark Isgrig was employed by the Missouri Department of Corrections (MDOC) as a Correctional Officer I at the Women's Reception and Diagnostic Center (WRDC). (Doc. 94-2 at 8.) Rachel Henke is a Correctional Officer II at WRDC and was defendant Isgrig's direct supervisor. (Doc. 96-10 at 8.) Defendant Angela Mesmer is the warden at WRDC. (Doc. 96-6 at 6.) Defendant George Lombardi is MDOC's Director. (Doc. 96-7 at ¶ 2.) Joey E. Runyan is an investigator in District 1 of MDOC, which includes WRDC. (Doc. 96-8 at 11.)
Correctional officers are trained on pat down procedures in basic training when they begin their employment. (Docs. 96-6 at 10; 96-9 at 7, 9; 96-10 at 8-9.) Defendant Isgrig received training on proper pat down procedures when he started working at MDOC in 2005 or 2006. (Doc. 96-6 at 10.) Isgrig's last frisk search training was in November 2010. (Doc. 100-1 at 10.) There are policy books, which include the procedures for proper pat down searches in the training rooms, control centers, shift supervisors offices, and on the computers where corrections officers can review them. (Docs. 96-6 at 11; 100-1 at 8.)
The proper pat down procedure of a female offender is for a male or female correctional officer to stand behind and reach around her. (Docs. 96-5 at 17-18; 96-8 at 15-16; 96-9 at 10-11; 96-10 at 11-13, 25-26.) The thumb of each hand of the officer is folded in and the hand, thumb in, is placed between the offender's breasts. (Docs. 96-5 at 17-18; 96-8 at 15-16; 96-9 at 10-11; 96-10 at 11-13, 25-26.) The officer's hand then goes under the contour of the bra line, palm side down. (Docs. 96-5 at 17-18; 96-8 at 15-16; 96-9 at 10-11; 96-10 at 11-13, 25-26.) The back of the hand then goes across the top of the breast. (Docs. 96-5 at 17-18; 96-8 at 15-16; 96-9 at 10-11; 96-10 at 11-13, 25-26.) Officers should only use the backs of their hands, and the palm should never touch an offender's breast. (Docs. 96-5 at 17-18; 96-8 at 15-16; 96-9 at 10-11; 96-10 at 11-13, 25-26.) If an offender is ever uncomfortable with any male correctional officer performing a pat down search, she may ask for a female correctional officer to perform the search instead. (Docs. 96-5 at 21; 96-10 at 23.)
Defendant Lombardi does not have any personal involvement in the day-to-day operations at WRDC and he had no direct responsibility to train or supervise Mesmer or Isgrig. (Doc. 96-7 ¶¶ 5-6.) Lombardi does not personally conduct training or develop training programs, classes, or policies. (
Plaintiff Victoria Whittington was incarcerated at WRDC from December 26, 2010 to March 24, 2013. (Doc. 94-3 at 9.) Defendant Isgrig fondled Whittington two times. (
Plaintiff Maegen Bright was incarcerated at WRDC from some time in December 2010 to April 29, 2013, and again from April 22, 2014 to the present. (Doc. 94-4 at 7-8.) Bright was frisked by Isgrig between 25 and 50 times, and inappropriately two or three times. (
Plaintiff Sondra Loness was incarcerated at WRDC from January 18, 2011 to July 28, 2011; from June 12, 2013 to August 6, 2014; and again from January 16, 2015 to the present. (Doc. 94-5 at 7-8.) Loness was frisked by Isgrig frequently and all of the searches were inappropriate. (Doc. 94-5 at 16-17, 19; 94-7 at 7.) Isgrig searched Loness in locations that could not be observed by other corrections officers. (Doc. 94-7 at 7.) Loness discussed the matter with MDOC Investigator Runyan. (
On or about April 6, 2011, inmate L.B.
On April 12, 2011, MDOC Investigator Runyan began his investigation by reviewing the complaint letter L.B. sent to the warden's office regarding inappropriate behavior by an unidentified officer. On April 18, 2011, Runyan interviewed L.B., who gave him a general description of the offending officer. (Doc. 100-1 at 3.) Runyan then reviewed the time logs and surveillance tapes from April 6, 2011 and matched L.B.'s description with Isgrig. (Docs. 96-8 at 23; 100-1 at 3.)
There was a pause in Runyan's investigation between April 6, 2011 and June 1, 2011. (Docs. 96-5 at 32; 96-8 at 24-25; 100-1 at 3.) During this time Isgrig was still an active corrections officer working in the housing unit. (Docs. 96-5 at 35-36; 96-6 at 34; 96-8 at 25.) Runyan interviewed complaint L.B. before she was transferred. (Doc. 96-8 at 25.) After that interview he returned to investigating his older cases. (
At the beginning of June 2011, Runyan began interviewing other staff at WRDC. (Doc. 100-1 at 3-4.) On June 6, 2011 Runyan interviewed L.B.'s former cellmates who did not confirm L.B.'s accusations. (
On June 13, 2011, Runyan set up a covert camera to document Isgrig's searches. (
On June 20, 2011, Runyan interviewed Isgrig. (
On June 21, 2011, Runyan conducted an audio recorded interview with victim offender M.B. (
On June 22, 2011, Runyan conducted an audio recorded interview with victim offender Maegan Bright. (
On June 22, 2011, Runyan conducted an audio recorded interview with M.P. (
On June 27, 2011, Runyan conducted a second audio recorded interview with Isgrig. (
Shortly after June 27, 2011, Mesmer transferred Isgrig from duties inside the Housing Unit to a location where he had no contact with offenders. (Docs. 96-5 at 35; 96-6 at 34.) Thereafter, Isgrig never performed any more searches of inmates at WRDC. (Doc. 96-6 at 114-15.) Shortly after this reassignment, Isgrig was transferred to Northeast Correctional Center (NECC) which houses only male inmates. (Docs. 96-5 at 34-35; 96-6 at 34-35.)
WRDC officials received two official complaints about Isgrig's searches: one from M.B. and one from L.B. (Docs. 96-5 at 32, 49-50; 96-6 at 21-22; 96-8 at 120-21; 96-9 at 15-16.)
On July 20, 2011, Mesmer conducted a pre-disciplinary meeting with Isgrig. (Docs. 96-5 at 36; 96-6 at 37.) On August 1, 2011, Mesmer requested disciplinary action for Isgrig. (Doc. 96-6 at 54, 58.)
On August 10, 2011, Runyan filed probable cause affidavits with the Audrain County Prosecutor stating there is probable cause to believe that Isgrig had committed sexual misconduct, first degree, under Rev. Mo. Stat. 566.090. (Docs. 100-2; 100-3; 100-4.)
On January 21, 2012, Isgrig pled guilty to two counts of third degree assault.
On January 31, 2012, Mesmer requested another pre-disciplinary meeting with Isgrig, which was scheduled for February 6, 2012. (Doc. 96-6 at 79-81.) On January 31, 2012, Isgrig was placed on administrative leave which lasted until his termination on April 13, 2012. (Docs. 96-6 at 82, 92.) A letter from MDOC dated April 3, 2012, detailing the reasons for his termination was sent to Isgrig. (Doc. 100-5.) It stated his actions "constitute disgraceful conduct that brought the state service into public disrepute" and that his actions were in violation of MDOC policies and procedures. (Doc. 100-5 at 1-2.)
Plaintiffs allege claims of outrageous conduct, under Missouri state tort law, against only defendant Isgrig. Isgrig argues that plaintiffs fail to satisfy the requisite level of resulting severe emotional distress.
In order to prove a claim of outrageous conduct under Missouri law, the plaintiff must prove: (1) defendant's conduct was extreme and outrageous; (2) defendant acted in an intentional or reckless manner; and (3) defendant caused the plaintiff severe emotional distress.
"It is for the court to determine, in the first instance whether the defendants' conduct may reasonably be regarded as so extreme and outrageous as to permit recovery."
The parties dispute whether plaintiffs' injuries are legally sufficient to sustain verdicts in their favor. Although some proof of a diagnosable injury is required, medically documented injuries, either physical or emotional, are not required for intentional emotional torts.
Plaintiffs have reported the following symptoms. Whittington feels scared and offended, is unable to sleep, and has nightmares. (Doc. 94-8 at 5-7). Plaintiff Bright feels humiliation, shock, anxiety, and apprehension around corrections officers. (Docs. 94-4 at 34; 94-7 at 6-7.) Plaintiff Loness describes her symptoms as shame, humiliation, and anxiety resulting in panic attacks. (Docs. 94-1 ¶ 21; 94-6 at 7-8.) Although defendant argues that these symptoms are not sufficient to meet Missouri's threshold for liability, reasonable jurors could disagree. It is up to a jury to decide whether these symptoms qualify as severe emotional distress under Missouri law.
Therefore, defendant Isgrig's motion for summary judgment as to Counts 2, 9, and 17 is denied.
Plaintiffs allege that defendant Isgrig was not trained properly and therefore could not properly execute his duties as a corrections officer. Plaintiffs also allege that defendants did not retrain staff after prior incidents of deviant sexual conduct, which resulted in the violation of plaintiffs' civil rights.
Defendant Isgrig argues that he cannot be held to have improperly trained himself and that liability for failure to train an officer lies, if at all, with the government or municipality. (
The evidence presented in defendant Isgrig's motion for summary judgment shows that Isgrig was not responsible for training correctional officers, let alone himself. Officers, including Isgrig, receive pat down training in basic training. (Doc. 96-6 at 10; 96-9 at 9). All officers also have a minimum annual training requirement imposed by the Department of Corrections. (Doc. 96-9 at 7.) There are policy books in the training rooms, control rooms, and the shift supervisors' offices, and on the prison computers for officers to review at any time. (Doc. 96-10 at 11.) Additionally, no evidence has been proffered that shows that defendant Isgrig was responsible for training anyone.
Therefore, his motion for summary judgment as to Counts 3, 10, and 18 for failure to train is sustained.
In order to find a supervisor liable for a subordinate's failure to train, plaintiffs must show, "(1) the [prison's] . . . training practices [were] inadequate; (2) the [prison] was deliberately indifferent to the rights of others in adopting them, such that the `failure to train reflects a deliberate or conscious choice by [the prison]'; and (3) an alleged deficiency in the . . . training procedures actually caused the plaintiff's injury." Parrish, 594 F.3d at 999 (quoting
The uncontroverted evidence proffered by defendant Mesmer shows the following. First, all corrections officers undergo pat down training during basic training and annual training. (Doc. 96 at ¶¶ 9, 10.) Second, written policies and procedures include the proper method for pat down searches of offenders. (Doc. 96 at 11.) Finally, these policies and procedures are available in locations throughout the prison. (
The plaintiffs have failed to show that the prison's training practices were inadequate or that there was a "deliberate or conscious choice" to not properly train Isgrig.
Therefore, defendant Mesmer's motion for summary judgment as to Counts 3, 10, and 18 is sustained.
Plaintiffs have alleged that defendants Lombardi and Mesmer were deliberately indifferent to the protection of the plaintiffs against the actions of Isgrig, in violation of 42 U.S.C. § 1983. (Doc. 75, 7-9, 18-19, 29-30.) Plaintiffs must prove that (1) there was a substantial risk of harm to the plaintiff inmate, and (2) that a prison official knew of the risk, but recklessly disregarded the risk.
Defendant Mesmer argues that she was not deliberately indifferent to plaintiffs' safety regarding possible sexual assault by corrections officers, including Isgrig.
The uncontroverted facts show that upon learning that there was a possibility of a male corrections officer improperly patting down female inmates, Mesmer ordered an investigation. (Docs. 96-5 at 2, 30; 96-6 at 16-18.) Prior to the issue with Isgrig there had been no complaints regarding searches. (Doc. 96-5 at 49-50.) The identity of the corrections officer was unknown until approximately April 18, 2011. (Doc. 100-1 at 3.) As soon as investigator Runyan verified the initial complaint with other inmates and recorded Isgrig performing improper searches, Mesmer removed Isgrig from contact with the inmate population. (Docs. 96-5 at 35; 96-6 at 34.) Then MDOC removed him from the female prison entirely. (Docs. 96-5 at 34-35; 96-6 at 34-35.) Runyan filed a probable cause statement with the Audrain County prosecutor and Isgrig was charged with sexual misconduct, first degree. (Docs. 100-2; 100-3; 100-4);
The undisputed record indicates that Mesmer was not deliberately indifferent to the risk posed by Isgrig. Before this incident with Isgrig she had no reason to suspect any corrections officer of sexual assault. Mesmer could not just assume that corrections officers were going to commit sexual assault.
Defendant Lombardi argues that he did not have any personal involvement in any of the allegations in the complaint. Therefore, he could not have been deliberately indifferent in protecting plaintiffs from Isgrig.
Although defendant Lombardi has been the MDOC Director since January 2009, he does not have any direct involvement in the day-to-day operations of the prisons. (Doc. 96-7 at 2.) He is not involved in the training of either Isgrig or Mesmer. (
The undisputed evidence presented shows that neither Mesmer nor Lombardi were deliberately indifferent to the risk posed by Isgrig.
Therefore, their motion for summary judgment on Counts 4, 11, and 19 is sustained.
Plaintiffs argue that all defendants acted with reckless indifference and/or gross negligence in failing to protect them from the risk posed by Isgrig. (Doc. 75 at 9-10, 19-20, 30-32.) Defendants counter that the proper standard for this claim is deliberate indifference not reckless indifference and/or gross negligence. (Docs. 94 at 8-9; 96 at 12.)
As previously discussed, in order to prove a section 1983 claim regarding a failure to protect, plaintiffs must show: (1) there was a substantial risk of harm and (2) that a prison official knew of the risk, but recklessly disregarded the risk.
Therefore, the defendants' motions for summary judgement as to Counts 5, 12, and 20 are sustained.
Plaintiffs argue that the defendants deliberately failed to use adequate procedures, thereby subjecting them to the risk of being exposed to a sexual deviant. (Doc. 75 at 10-12, 21-22, 32-33.) Plaintiffs also argue that there were inadequate procedures in place to prevent the alleged assault. Defendants argue that these claims merely restate Counts 3, 4, 10, 11, 18, and 19. In the alternative defendants argue that there is no constitutional right to certain procedures and prison policies. (Doc. 96 at 12-13.)
The undisputed evidence shows that the prison had adequate training procedures in place. The administrative process to discipline and remove correctional officers who have violated policies is also adequate. There has been no evidence proffered that either Mesmer or Lombardi was deliberately indifferent to plaintiffs' health and safety by either not having or not enforcing adequate training and administrative procedures.
Therefore, the defendants' motion for summary judgment with regards to Counts 6, 13, and 21 is sustained.
Plaintiffs argue that all defendants acted with reckless indifference and/or gross negligence in failing to use adequate procedures regarding pat downs of female prisoners by male corrections officers. (Doc. 75 at 12-14, 22-24, 33-35.) Defendants argue that there is no constitutional right to have certain procedures. (Docs. 94 at 8-9; 96 at 12.)
The standard for section 1983 claims, even those involving safety measures, is deliberate indifference, not any form of negligence.
Therefore, defendants' motion for summary judgment with regards to Counts 7, 14, and 22 is sustained.
In the alternative both defendants Lombardi and Mesmer argue that they are protected from suit under qualified immunity. (Doc. 96 at 13.) Defendants argue that they are shielded if they have performed their duties reasonably. (
"Qualified immunity protects a government official from liability in a section 1983 action unless the official's conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known."
An official is liable for violating bright lines regarding constitutional rights.
The court will address only the first prong of the qualified immunity test, because Mesmer and Lombardi's actions did not amount to the violation of clearly established constitutional right.
The uncontroverted facts show that Mesmer did not know of the issue regarding Isgrig until April 2011. (Docs. 96-5 at 25-26; 96-8 at 22-23; 100-1 at 2-3.) Prison officials only received two official complaints regarding Isgrig: L.B.'s complaint that initiated the investigation and M.B's during the investigation. (Docs. 96-5 at 32, 49-50; 96-6 at 21-22; 96-8 at 102-21; 96-9 at 15-16.) After identifying Isgrig and confirming the initial complaint Mesmer removed Isgrig from contact with female inmates. (Docs. 96-5 at 34-35; 96-6 at 34-35, 111-15.) At no time was Lombardi involved in the training, supervision, or discipline of Isgrig or Mesmer. (Doc 96-7 ¶¶ 5-6).
In order for either Mesmer or Lombardi to have violated plaintiffs' Eighth Amendment constitutional rights by failing to train Isgrig, the lack of training must amount to deliberate indifference. No evidence indicated that Mesmer was indifferent to Isgrig's training. He was trained during basic training, annual training, and had access to the policies and procedures regarding pat down searches at all times during his employment. (Docs. 96-6 at 10-11; 96-9 at 7, 9; 96-10 at 8-9; 100-1 at 8, 10.) At no time was Lombardi involved in the training, supervision, or discipline of Isgrig or Mesmer. (Doc 96-7 ¶¶ 5-6).
Therefore, even if summary judgment was not appropriate regarding the claims against defendants Mesmer and Lombardi, both are entitled to qualified immunity.
Defendants have not challenged plaintiffs' claims against Isrig for violations of the Eighth Amendment by the infliction of cruel and unusual punishment.
The claims of plaintiffs that remain for litigation are:
(a) Plaintiff Victoria Whittington's claims
(1) Count 1 — against defendant Isgrig for violation of the Eighth Amendment's prohibition against Cruel and Unusual Punishment;
(2) Count 2 — against defendant Isgrig alleging the Missouri common law tort of outrageous conduct;
(b) Plaintiff Maegen Bright's claims
(3) Count 8 — against defendant Isgrig for violation of the Eighth Amendment's prohibition against Cruel and Unusual Punishment;
(4) Count 9 — against defendant Isgrig alleging the Missouri common law tort of outrageous conduct;
(c) Plaintiff Sondra Loness' claims
(5) Count 16 — against defendant Isgrig for violation of the Eighth Amendment's prohibition against Cruel and Unusual Punishment;
(6) Count 17 — against defendant Isgrig alleging the Missouri common law tort of outrageous conduct.
For the reasons stated above,
