ALGENON L. MARBLEY, District Judge.
Plaintiff Dorothea Reynolds, formerly an inmate at the Ohio Reformatory for Woman ("ORW"), brings the above-captioned action under 42 U.S.C. § 1983 alleging that defendant Corrections Officer Robert W. Smith sexually assaulted her, and that the remaining defendants failed to protect her, in violation of her rights under the Fourth, Eighth and Fourteenth Amendments to the United States Constitution. This matter is before the Court on Defendants' motion for summary judgment (Doc. 230) contending that there are no genuine issues of material fact and seeking dismissal of this action on three grounds: (1) Ms. Reynolds failed to exhaust her administrative remedies against all Defendants; (2) Ms. Reynolds' failure to protect claims are time barred under the two-year statute of limitations for actions under 42 U.S.C. § 1983 as to Defendants Cynthia Bartlett, Kenneth Calhoun, Warden Sheri Duffey, Dean McCombs, Luke Meeker, William Owens, Jennifer Roach, and Linda Wood; and (3) all Defendants are entitled to qualified immunity on Ms. Reynolds' failure to protect claim. Ms. Reynolds has responded and the motion has been fully briefed. For the reasons set forth below Defendants' motion is
The Court's record is replete with lengthy recitations of the factual background of this case. To say that this case is extremely fact intensive would be gross understatement. Given the nature of the claims, the ten named defendants, and the numerous depositions and other evidentiary materials garnered over the six-year span of this case, sorting out the relevant facts has been extremely time intensive. The Court has not been aided by the parties' briefing and lackadaisical citation to the record. Some of the citation efforts fairly can be characterized as akin to stating "here's a fact based on evidence we once filed with the Court." Notably, however, this turned out not to be the case with respect to certain evidentiary materials, prompting Court intervention. With respect to certain other materials, however, that appears to still be the case. The presentation of evidentiary material in this case can fairly be characterized as haphazard.
The Court will not repeat facts directed specifically to the issue of exhaustion. Rather, the Court incorporates by reference the facts relating to that issue as set forth in the Report and Recommendation issued May 1, 2015 (Doc. 109), and as adopted and expanded by the Court in its Opinion and Order issued September 8, 2015 (Doc. 114). For purposes of the more substantive issues raised by the current motion for summary judgment, the Court provides the following facts, to the best of its ability, given the manner of presentation.
There is no dispute that Ms. Reynolds was incarcerated at the ORW from November 7, 2008 until May 1, 2009. During this time, aside from time spent in segregation, she resided in the unit known as "Shirley 1." Mr. Smith worked third-shift in this unit.
The remaining facts relevant here, construed in the light most favorable to Ms. Reynolds, are more easily explained by the following timeline.
Upon receipt of this email, Warden Duffey assigned Cindy Bartlett to be the investigating officer. Declaration of Cynthia Bartlett, Doc. 230-1, ¶ 9 ("Bartlett Dec."). Ms. Roach was also an investigator and worked with Ms. Bartlett. Deposition of Jennifer Roach, Doc. 251-1, p. 28 ("Roach Depo."). Ms. Bartlett prepared an ORW Investigation Report . Doc. 101-2 ("ORW Report"). That document states, in relevant part:
We interviewed [Inmate 1] on 2/20/09 and she wrote a statement (exhibit B).
ORW Report, p.1.
Reply, Exhibit 2, Doc. 248-2.
The questions we asked were:
ORW Report at p. 2.
Following this interview, Ms. Reynolds was released back to Shirley 1. Reynolds Depo., p. 46. Ms. Reynolds "was specifically told by Bartlett to report any more incidents with Smith directly to her." Affidavit of Dorothea Reynolds, Doc. 106-1, at ¶ 7 ("Reynolds Aff."). Ms. Bartlett and Ms. Roach gave her a phone number to call (the institution's snitch line), asked her to report anything of substance to them and requested that she check in with them weekly. Bartlett Depo. at pp. 42, 43. Kissing between a prisoner and a guard is an unauthorized relationship. Id. at 40.
[Mr. McCombs] asked 11 questions, but only 3 were relevant to the case, they were:
Id.
Ms. Reynolds filed this §1983 action against all Defendants on March 31, 2011. Complaint, Doc. 1. The current motion is not the first dispositive motion or even summary judgment motion filed by Defendants over the six plus years this case has been pending. In response to their motion to dismiss filed June 7, 2011, the Court dismissed Ms. Reynolds' state court claims and her claims against them in their official capacities. Order, Doc. 34. The Court, both in a Report and Recommendation (Doc. 109) and the Opinion and Order adopting and affirming that Report and Recommendation (Doc. 114), denied Defendants' previous motion for summary judgment seeking the dismissal of Ms. Reynolds' claims on grounds either identical or similar to those asserted here. More specifically, the Court denied the Defendants' previous motion to the extent it sought summary judgment on statute of limitations grounds. The Court found that Ms. Reynolds' claims arose out of Smith's alleged sexual assaults beginning April 15, 2009, and so her complaint, filed on March 31, 2009, fell within the two-year statute of limitations for §1983 claims. Further, the Court denied summary judgment as to Defendants' exhaustion defense, finding genuine issues of material fact regarding whether the three-step inmate grievance procedure was "available" to Ms. Reynolds. Finally, the Court denied a grant of qualified immunity to the extent Defendants asserted that they were entitled to qualified immunity because Ms. Reynolds had not exhausted her administrative remedies. The decision as to exhaustion was reaffirmed in the Court's Opinion and Order denying Defendants' motion for reconsideration and, in the alternative motion to certify for interlocutory review (Doc. 218).
Defendants filed their current motion for summary judgment on January 30, 2017. As noted, this matter has been fully briefed and is ripe for review.
Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." A fact is deemed material only if it "might affect the outcome of the lawsuit under the governing substantive law." Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The necessary inquiry for this Court is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In evaluating such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).
Defendants raise three arguments in support of their summary judgment motion. The Court will consider each argument in turn.
Defendants rehash their argument that the statute of limitations began to accrue either on February 25, 2009, the date that prison officials searched Ms. Reynolds' cell and discovered a letter from her to Mr. Smith, or on March 2, 2009, when she was interviewed by ORW investigators. In reasserting this argument, Defendants acknowledge that the Court previously determined that Ms. Reynolds is seeking redress only for the events of April 15, 2009 and thereafter. They assert that, out of an abundance of caution, they include this argument for purposes of preserving it on the record.
The Court duly notes Defendants' argument. For the reasons previously stated in both the Magistrate Judge's Report and Recommendation issued on May 1, 2015 (Doc. 109), and the Court's Opinion and Order issued September 8, 2015 (Doc. 114), adopting that Report and Recommendation, the Court concludes that the first harm for which Ms. Reynolds seeks redress occurred on April 15, 2009. Because this action was filed within two years of that date, Ms. Reynolds' claims are timely. Consequently, the Court will not grant Defendants' motion for summary judgment to the extent they assert that Ms. Reynolds' claims are time-barred.
Defendants again raise the issue of exhaustion. The Court previously has addressed this issue no less than 5 times. See Report and Recommendation, ECF No. 30; Opinion and Order, ECF No. 34; Report and Recommendation, ECF No. 109; Opinion and Order, ECF No. 114; Opinion and Order, ECF No. 218. This time, Defendants assert that, while the Court previously determined that a genuine issue of material fact existed as to whether Ms. Reynolds exhausted her administrative remedies against Mr. Smith and Mr. Calhoun, the Court has not determined whether she exhausted her administrative remedies as to the other Defendants. Defendants contend that she has not done so and rely on the recent United States Supreme Court decision Ross v. Blake, 136 S.Ct. 1850 (2016) for support. Ms. Reynolds has responded to Defendants' latest iteration of its exhaustion argument in some detail. She addresses at length Defendants' challenge to the Court's previous conclusions to the extent Defendants rely on Ross v. Blake, supra. In their reply, Defendants assert a new argument in further support of their position that the Court must yet again reconsider its previous exhaustion ruling. According to Defendants, in her response, Ms. Reynolds presents "factually-inconsistent arguments" for her failure to exhaust and these alleged inconsistencies demonstrate the lack of a genuine issue of material fact. For the following reasons, it is time for Defendants to take the Court's conclusion that a genuine issue of material fact surrounds the issue of Ms. Reynolds' exhaustion for an answer.
In addressing this issue as raised in Defendants' first motion for summary judgment, the Court explained:
Reynolds v. Smith, No. 2:11-cv-277, 2015 WL 1968867, at *9 (S.D. Ohio May 1, 2015), adopted and affirmed, 2015 WL 5212053 (S.D. Ohio Sep. 8, 2015).
Contrary to Defendants' interpretation that the Court's earlier conclusion was limited to Mr. Smith and Mr. Calhoun, nothing in the Court's previous orders supports such a reading. In reaching that conclusion, the Court was ruling on a motion filed on behalf of all Defendants. Certainly, if the Court intended to limit the application of its ruling to specific Defendants it would have so stated. Defendants' after-the-fact attempt to conjure such a restriction is disingenuous. Moreover, a variation of this argument was soundly rejected by the Court in its Opinion and Order denying Defendants' motion for reconsideration and interlocutory review. Reynolds v. Smith, No. 2:11-cv-277, 2016 WL 4480341, *4 (S.D. Ohio Aug. 25, 2016) (Doc. 218). ("Defendants' interpretation of the PLRA and guiding case law would thus give prison workers freedom to violate a plaintiff's rights with abandon so long as the particular defendant did not personally render administrative remedies unavailable. That result would be preposterous.").
Further, Defendants' submission that allegedly inconsistent factual assertions in Ms. Reynolds' response require the Court to reconsider its ruling at this stage is, at a minimum, unavailing. Certainly, "a reply brief is not the proper place to raise an issue for the first time." United Tel. Co. of Ohio v. Ameritech Servs., Inc., No. 2:10-cv-249, 2011 WL 53462, at *3 n.2 (S.D. Ohio Jan. 7, 2011) and the Court consistently declines to consider issues on this basis. Defendants' attempt to frame the issue as arising from assertions in Ms. Reynolds' response does not persuade the Court to consider this case to be the exception. Moreover, all of the alleged facts upon which Defendants contend Ms. Reynolds relies, and which Defendants now assert are inconsistent, were readily available to Defendants in moving for summary judgment. Specifically, to the extent Defendants cite to assertions in Ms. Reynolds' response based on averments in her affidavit, that document was filed with the Court on February 26, 2015. See Doc. 106-1. Further, to the extent that Defendants note by footnote that they have attached call logs to their reply that refute Ms. Reynolds' sworn statements that she called the hotline number, this would appear to raise a factual issue.
Finally, to the extent that Defendants' motion can be read as suggesting that the decision in Ross v. Blake, supra, requires the Court to revisit its earlier decision, such an argument is wholly without merit. That case merely reaffirmed the well-understood principle, consistently applied by the Court in this case, that an inmate must exhaust "such administrative remedies as are available." 42 U.S.C. § 1997e(a). As well-documented, the availability of Ms. Reynolds' remedies is the focus of the Court's previous rulings. For all of these reasons, the Court declines to revisit the issue of whether Ms. Reynolds has raised a genuine of material fact relating to the exhaustion of her claim sufficient to overcome Defendants' motion for summary judgment. The Court remains satisfied that she has.
Defendants' also contend that they are entitled to qualified immunity. Their entire argument on this issue as set forth in their motion is restated here verbatim:
Motion for Summary Judgment, Doc. 230, p.17.
In their motion, Defendants do not definitively identify the claim to which their qualified immunity defense is directed. In reply, however, they indicate that their argument is directed to Ms. Reynolds' failure to protect claim. Ms. Reynolds' briefing is consistent with this understanding.
With respect to Mr. Smith, however, Defendants attempt to distinguish the claims directed to him from those against the other Defendants. They do not, however, identify the specific claims Ms. Reynolds has directed to Mr. Smith nor do they address the elements of any claim within the context of making their qualified immunity argument as it pertains to him. Instead, in reply, they simply make a broad argument under the sub-heading "Reynold's (sic) 42 U.S.C. § 1983 claims against Defendant Robert Smith." See Reply, Doc. 248, p. 12. This argument, in its entirety, states:
Id. at p. 13.
There are two problems with this argument. First, it is not raised within the framework of a qualified immunity analysis. Moreover, it is raised for the first time in reply and Ms. Reynolds has not had the opportunity to respond. For these reasons, the Court will not consider Mr. Smith's claim of qualified immunity. See United Tel. Co. of Ohio v. Ameritech Servs., Inc., supra.
With respect to the other Defendants, whether they are entitled to qualified immunity "turns on two questions: did the defendant violate a constitutionally protected right, and if so, was the right clearly established at the time the act was committed?" Ruiz-Bueno v. Scott, Nos. 14-4149, 14-4151, 639 Fed.Appx. 354, 358 (6th Cir. Feb. 2, 2016)(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). "These questions may be addressed in any order that will facilitate a fair and efficient disposition of the case." Id. It is to these questions that the Court will now turn.
Defendants do not address the issue of whether the constitutional right at issue here — the right to be free from sexual assault by a corrections officer — was clearly established at the time of the alleged events. However, the Court easily concludes that it was. Certainly, by that time, the United States Supreme Court had made clear that the Eighth Amendment imposes duties on prison officials to take reasonable measures to guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). There is no question that "prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." Id. Courts have interpreted this Eighth Amendment right to include an inmates' right "to be secure in her bodily integrity and free from attack by prison guards." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). This interpretation has been consistent. See, e.g., Alderson v. Shelby County Gov't, No. 11-2024-STA-dkv, 2012 WL 566934, *15 (W.D. Tenn. Feb. 21, 2012) ("[T]his constitutional right to be protected from assault and sexual abuse by other prisoners would extend to protection from assault and sexual abuse by prison guards and corrections officers as well."); Clark v. Britton, No. 2:11-cv-980, 2013 WL 6662820, *5 (S.D. Ohio Dec. 17, 2013)(recognizing that a prisoner has a right to be free from sexual assault by a prison guard).
The focus of Defendants' motion for summary judgment is that Ms. Reynolds has failed to establish a constitutional violation. "To establish a constitutional violation based on failure to protect, a plaintiff must show that prison officials acted with `deliberate indifference' to inmate health or safety." Bishop v. Hackel, 63 F.3d 757, 766 (2011)(quoting Farmer, 511 U.S. at 834. The Court of Appeals recently explained the concept of deliberate indifference in this way:
Mangum v. Repp, No. 15-4292, 674 Fed.Appx. 531, 537 (6th Cir. Jan. 5, 2017).
Here, Defendants concede that Ms. Reynolds can satisfy the objective component of her failure to protect claim. Given the nature of Ms. Reynolds' allegations, the Court also is satisfied that this component has been met.
Turning to the subjective component, the question before the Court is whether Ms. Reynolds has presented facts that, if true, show how Defendants, other than Mr. Smith, (1) were aware of facts from which the inference could be drawn that a substantial risk of serious harm to Ms. Reynolds existed, (2) actually drew the inference that there was a substantial risk, and (3) disregarded that risk. Id. To the extent the parties' briefing allows, the Court will consider these issues as to each defendant individually. Id. (citing Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)).
Defendants contend that there is no evidence that Mr. Calhoun had any involvement with Ms. Reynolds until after the dates on which the alleged sexual assaults occurred. Ms. Reynolds does not seriously contend otherwise. Defendants' position is supported by the record.
The only evidence in the record addressed to Mr. Calhoun is Ms. Reynolds' testimony that he allegedly threatened her on April 30, 2017, while she was housed in Arn-4. This date was two weeks after the first alleged incident and several days after the second or third. This evidence would not allow a reasonable juror to infer that Mr. Calhoun was subjectively aware of the serious risk of harm to Ms. Reynolds prior to the alleged sexual assaults. Consequently, the motion for summary judgment will be granted as to Ms. Reynolds' failure to protect claim directed to Mr. Calhoun.
Defendants assert that there is no evidence that Mr. McCombs exhibited deliberated indifference to Ms. Reynolds' safety needs. The Court agrees. Mr. McCombs' only involvement was in administering the CVSA exam to Ms. Reynolds on April 2, 2009. He concluded that the results showed no deception. He sought a second opinion which confirmed his conclusion. There is no evidence that Mr. McCombs had any additional contact with Ms. Reynolds beyond administering the CVSA exam. Further, even assuming that he would be considered an official with protective duties relating to Ms. Reynolds, he discharged those duties by performing the test and delivering the results to the investigators at ORW. Under this circumstance, Ms. Reynolds has not raised a genuine issue of material fact as to whether Mr. McCombs exhibited deliberate indifference to her safety. Consequently, the motion for summary judgment will be granted as to Ms. Reynolds' failure to protect claim directed to Mr. McCombs.
Defendants contend that Mr. Owens did not have any involvement with Ms. Reynolds. In arguing to the contrary, Ms. Reynolds relies on Inmate 2's statement and the email prepared by Ms. Wood on February 20, 2009. Mr. Owens, however, explains that it was later determined that he worked with a different Officer Smith and Ms. Reynolds testified that she did not know who Mr. Owens was.
Defendants' interpretation of the record is correct. Mr. Owens testified that he did not work with Mr. Smith while at ORW, did not work third shift in the cottage where Ms. Reynolds resided, and to the extent he worked in that cottage at all it was only on first shift. Deposition of William Owens, Doc. 162-1, p. 40 ("Owens Depo"). At her deposition, Ms. Reynolds stated the she did not recall who Officer Owens was. See Reynolds' Depo., p. 42. Further, the complaint does not allege that Mr. Owens was on notice of any risk to Ms. Reynolds. At most, in response to Defendants' motion, Ms. Reynolds asserts that Mr. Owens admitted that he had a duty to report any sexual relationships between staff and an inmate or that any such relationship by its terms is nonconsensual and illegal. This testimony, however, does not raise a genuine issue of material fact as to Mr. Owens' knowledge of the risk of harm specific to her. Consequently, the motion for summary judgment will be granted as to Ms. Reynolds' failure to protect claim directed to Mr. Owens.
Defendants contend that Ms. Reynolds has offered only conclusory speculation as to Ms. Wood's awareness of the accusations against Mr. Smith. Moreover, they assert that, to the extent Ms. Wood had any duties under the facts as alleged, she followed protocol. Beyond this, they argue that Ms. Reynolds suggests that Ms. Wood should be held liable solely on the basis of her supervisory role. Ms. Reynolds relies exclusively on the opinion of her expert, Wendy Still, to assert that, as an experienced staff member with supervisory responsibility, Ms. Wood should have recognized the significant risk. See Expert Report of Wendy Still, Doc. 251-3 ("Still Report").
The only information in the record relating to Ms. Woods is that she sent the email dated February 20, 2009, based on Inmate 1's allegations. There is no additional evidence in the record relating to her involvement after that date. There is no evidence at all of any direct interaction between Ms. Reynolds and Ms. Wood. There also is no evidence relating to Ms. Wood's interactions with other Defendants where they would have informed her of any information relating to Ms. Reynolds. Defendants are correct that Ms. Wood can be found liable based only on her own personal involvement. Heyerman v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). Ms. Still's expert opinion as to Ms. Wood's supervisory responsibility, therefore, does not raise a genuine issue of material fact.
Further, assuming Mr. Reynolds could overcome the above hurdles, there is no evidence that Ms. Wood acted with disregard. Rather, the evidence is undisputed that she passed along Inmate 1's allegations to the Warden and put a directive in place. To the extent that this has any bearing on Ms. Reynolds' allegations made after the date of the directive, Ms. Wood acted reasonably. There is no evidence that Ms. Wood knew that her directive was not being followed. Consequently, the motion for summary judgment will be granted as to Ms. Reynolds' failure to protect claim directed to Ms. Wood.
Defendants contend that Ms. Trim is entitled to summary judgment because she was not appointed Warden at ORW until June 2009, after the alleged sexual assaults. The sole basis for Ms. Reynolds' claim directed to Ms. Trim, succinctly stated, appears to be Ms. Trim's knowledge of institutional sexual assault procedures. Again, Ms. Reynolds relies primarily on Ms. Still's expert opinion in an effort to raise a genuine issue of material fact.
The record confirms that Ms. Trim did not become the warden at ORW until after the alleged sexual assaults on Ms. Reynolds. The gist of Ms. Trim's deposition testimony is that she was not involved in any direct way with the investigation of Ms. Reynolds' allegations prior to the decision to move forward with disciplinary action against Mr. Smith. See Deposition of Ginine Trim, Doc. 96, at pp. 31-101 ("Trim Depo"). Much of her testimony is addressed generally to procedures pertaining to alleged sexual assault, not to Ms. Reynolds' alleged situation specifically. Ms. Reynolds has presented no evidence suggesting Ms Trim's direct involvement in the investigation. Similarly, she has presented no evidence that anyone else informed Ms. Trim of the investigation relating to Ms. Reynolds.
Ms. Still's opinion, to the extent the Court would even consider it, is directed to actions Ms. Trim should have taken prior to the alleged assaults based solely upon Ms. Trim's operations role at ORW, the position she held before she was named Warden. Ms. Still's opinion does not address actions that Ms. Trim should have undertaken based upon her specific knowledge of a threat to Ms. Reynolds. Ms. Still's opinion, on its own, is not sufficient to raise a genuine issue of material fact as to Ms. Trim's knowledge or disregard of a substantial risk of harm to Ms. Reynolds. Consequently, the motion for summary judgment will be granted as to Ms. Reynolds' failure to protect claim directed to Ms. Trim.
Defendants contend that Mr. Meeker is entitled to summary judgment because Ms. Reynolds' allegations against him are based solely on her mischaracterization of his statement to the Highway Patrol. Further, they assert that Mr. Meeker explained that it was not possible for Ms. Reynolds to have entered either his desk area or the staff bathroom because the crash gates were closed and only opened in the event of an emergency. Finally, they contend that Ms. Reynolds has identified no facts demonstrating Mr. Meeker's specific awareness of an inappropriate relationship between Mr. Smith and her.
Ms. Reynolds testified that, at least on the night of the first alleged incident, Mr. Meeker was sitting at the desk when she walked up before Mr. Smith signaled her to the bathroom. She provides no details, however, explaining that Mr. Meeker was aware of her interaction with Mr. Smith. Instead, she relies on two statements Mr. Meeker made to the OSHP to support her claim that he failed to protect her. The first statement is that Mr. Meeker had seen inmates go into the staff restroom to get paper towels and that, in such instances, Mr. Smith might be out of his sight for 5 to 15 seconds. See OHSP Statement, Doc. 248-5 ("Meeker Statement"). The second statement is that Ms. Reynolds was one of these inmates. Id. Beyond this, she merely relies on Ms. Still's opinion which, in summary, states nothing more than her opinion that Mr. Meeker had to know.
Ms. Reynolds has failed to raise a genuine issue of material fact relating to Mr. Meeker's knowledge. His deposition testimony states that he was not aware of any alleged inappropriate relationship between Ms. Reynolds and Mr. Smith because (1) he did not suspect it and (2) he did not know about the institutional investigation. Deposition of Luke Meeker, Doc. 161-1, pp. 43-44 ("Meeker Depo."). Ms. Still's opinion does not serve to refute this testimony in a way that would allow Ms. Reynolds to survive summary judgment on her failure to protect claim. In order for Ms. Reynolds to succeed on this claim, it is not enough for her to show that a reasonable person would have known of the risk, or even that Mr. Meeker, given his proximity to the alleged events, should have known of the risk. Consequently, the motion for summary judgment will be granted as to Ms. Reynolds' failure to protect claim directed to Mr. Meeker.
Despite the requirement that the issue of deliberate indifference be considered individually, the parties address Ms. Roach and Ms. Bartlett together. Further, Defendants contend, at least as far as their argument goes, that Ms. Duffey "had the same information as the Investigators." Relying on this representation, the Court will construe their argument as conceding that these Defendants were aware of the same facts for purposes of analyzing Ms. Reynolds' failure to protect claim directed to them.
In moving for summary judgment, these Defendants focus on Ms. Reynolds' initial allegations. They characterize these allegations as arising in February, 2009. They appear to concede that these allegations are enough to satisfy the first two prongs of a failure to protect claim and limit their focus to measures they allegedly took in response. These measures, as identified by Defendants, include Ms. Wood's directive, confronting Ms. Reynolds about the letter, status checks on Ms. Reynolds, continued monitoring, an offer to move Ms. Reynolds, and an offer to have her undergo a CVSA exam. The Court's consideration of these alleged measures reveals the following.
Significantly, Ms. Wood's directive resulted from Inmate 1's allegations made on February 20, 2009. At the time of this directive, video footage was available for one week prior, or dating back to February 13, 2009. Bartlett Dec. ¶ 12. These alleged "cautionary measures" clearly predate Ms. Reynolds' allegations and could not have been taken in response to them. Reply, Doc. 248, p. 12. Ms. Reynolds was not "confronted" with what Defendants characterize as an "explicit letter," until March 2, 2009. Id. at pp. 11-12. Defendants' statement that Ms. Reynolds "was contacted on two different occasions so that she could provide a status update" is devoid of any specifics, explanation or details. See Bartlett Dec. at ¶ 19. Similarly, to the extent that these Defendants assert that "the investigators continued to monitor her," this statement is also lacking any specifics, explanation or details. See Reply, Doc. 248 at 12. Likewise, Defendants' assertion that they offered Ms. Reynolds the opportunity to transfer out of Shirley 1 is lacking in any description about Ms. Reynolds' potential placement or how this transfer could have impacted her safety. Defendants explain that they took these "cautionary measures" despite the fact that they believed in March, 2009, that Ms. Reynolds' allegations were false. Id.
Despite what Defendants may have believed, however, they took Ms. Reynolds' original allegations seriously enough to offer her the opportunity to undergo a CVSA test. Presumably, this offer was made during the interview on March 2, 2009. The results of this test showed no deception with respect to the allegations Defendants explain they believed were false. The CVSA results did not pertain to new allegations. Defendants, however, do not detail any "cautionary measures" they took on Ms. Reynolds' behalf after they received the CVSA results on April 2, 2009. Id. As noted, Defendants' entire argument regarding any action designed to protect Ms. Reynolds is limited to the time period prior to their receipt of these results. Construing the facts in the light most favorable to Ms. Reynolds with respect to the issue raised by Defendants' motion, a genuine issue of material fact exists as to whether these Defendants should have taken further action to protect Ms. Reynolds. Consequently, the motion for summary judgment as it relates to Ms. Reynolds' failure to protect claim directed to Defendants Roach, Bartlett, and Duffey will be denied.
For the reasons set forth above, Defendants' motion for summary judgment (Doc. 230) is
