JOHN E. DOWDELL, District Judge.
Before the Court are multiple summary judgment motions filed by the defendants (Doc. 113, 114, 117, 118, 198, 201).
The following facts are supported by evidence in the summary judgment record and are taken as true, with all reasonable inferences therefrom drawn in favor of the plaintiff, Billy Bloom.
Bloom was booked into the Creek County Criminal Justice Center ("Jail") in Sapulpa, Oklahoma, on November 23, 2011. At the time, he was a pretrial detainee. Bloom was initially held in the N-Pod unit of the Jail. On December 10, 2011, Bloom was involved in an altercation with another inmate in the N-Pod unit, after which Bloom was moved to a holding unit. The following evening, December 11, 2011, defendant Chad Pompa, a Shift Supervisor at the Jail, ordered Detention Officer Jeremiah Hammett to move Bloom from the holding cell to segregation cell C-212, which was already occupied by inmate Shawn Sexton.
As Hammett and Bloom approached cell C-212 on December 11, 2011, Sexton was seen standing at the cell door.
Defendant Adam Marshall, who was the Shift Supervisor on duty at the time, and Jail nurse Evelyn Bates arrived to render assistance to Bloom, who was on the Jail floor. Bates removed blood from Bloom's mouth and used an Ambu bag to assist Bloom in breathing. Marshall used his radio to order the master control operator to both call for an ambulance and call Captain Kelly Birch, the Jail Administrator. After several minutes, an ambulance arrived, and Bloom was taken to the hospital.
Sexton had been incarcerated numerous times since 2008 (Doc. 148-21), was known by Jail personnel to be violent, and had been involved in a number of fights at the Jail. (E.g., Doc. 148-9 at 51, ll. 19-22; id. at 62, ll. 16-20). Defendant Birch testified that he was aware that Sexton was violent and had been in fights and assaults for "as long as he's been incarcerated." (Doc. 148-3 at 53, ll. 10-21). In the year prior to the attack on Bloom, Sexton had been placed in segregation in the C unit several times. (Doc. 150-21 at 15-16). Months before the attack, Pompa noted that, while he was conducting a security check:
(Doc. 148-29 at 1).
Pompa admitted that there were cells other than C-212 where Bloom could have been moved from the holding cell. However, Pompa testified that his intent in moving Bloom "was to discipline Bloom," and placement in any of the other cells "wouldn't have been disciplinary." (Doc. 150-4 at 105-107).
Prior to moving Bloom to C-212, Hammett had been warned by Sexton and perhaps another inmate that Sexton would harm Bloom if Bloom were placed in C-212. Hammett wrote a report of the Sexton attack on Bloom, in which Hammett acknowledged that Sexton had earlier in the day warned that Hammett "better not" place Bloom in Sexton's cell or Sexton would "run him out." Hammett explained the interaction as follows:
After the attack, Hammett informed Shift Supervisor Adam Marshall that Sexton had warned Hammett not to put Bloom in that cell. (Doc. 148-5 at 105, ll. 1-14). Hammett also told Bates that, just before the cell door was opened, Sexton had told Hammett, "I do not want him in my cell. If you put him in here I will kill that fucking son-of-a-bitch." (Doc. 148-11 at 5, ¶ h; Doc. 148-35 at 52, ll. 6-15).
During his incarceration at the Jail, Bloom had no interaction with then-Sheriff Toliver or with Kelly Birch, the Jail Administrator.
Bloom asserts that he suffers from memory loss, blurred vision, migraine headaches, and balance problems as a result of the injuries sustained in the attack at the Jail, and he brings this suit against defendants Birch, Marshall, Pompa, Hammett, Sexton, then-presiding Creek County Sheriff Toliver, and Sheriff John Davis.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[S]ummary 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 nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The courts thus determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255, 106 S.Ct. 2505. The court may not weigh the evidence and may not credit the evidence of the party seeking summary judgment and ignore evidence offered by the non-movant. Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866-68, 188 L.Ed.2d 895 (2014) (per curiam).
Bloom's official capacity claim (now alleged against defendant John Davis, the current Creek County Sheriff) is treated like a claim for municipal liability. An official capacity claim represents one way of asserting "an action against an entity of which [the] officer is an agent." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such claims are treated as claims against the County itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."); Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir.1999) ("[Plaintiff]'s suit against Sheriff LeMaster in his official capacity
A municipality or county may not be held liable under § 1983 solely because its employee inflicted injury; such liability cannot be found by application of the theory of respondeat superior. Monell, 436 U.S. at 691, 694, 98 S.Ct. 2018. "[L]ocal governments are responsible only for `their own illegal acts.'" Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694, 98 S.Ct. 2018. Thus, to establish municipal liability under § 1983, a plaintiff must show "1) the existence of a municipal policy or custom and 2) a direct causal link between the policy or custom and the injury alleged." Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). The requirement of a policy or custom distinguishes the "acts of the municipality from acts of employees of the municipality, and thereby make[s] clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur, 475 U.S. at 479, 106 S.Ct. 1292 (emphasis in original).
The Tenth Circuit has described several types of actions that may constitute a municipal policy or custom.
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir.2010) (citations omitted).
Where the alleged basis for municipal liability is not a formal policy, but a "custom or usage," the plaintiff must provide evidence of a practice that is "so widespread as to have the force of law." Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "In order to establish a custom, the actions must be `persistent and widespread ... practices of [municipal] officials.'" Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir.1996) (quoting Starrett v. Wadley, 876 F.2d 808, 818 (10th Cir.1989) and Monell, 436 U.S. at 691, 98 S.Ct. 2018).
Here, plaintiff alleges that Toliver was responsible for a policy or practice of punishing pretrial detainees by permitting Jail staff to move them wherever they wanted. The evidence does not support such a policy or practice by Toliver that was so widespread as to have the force of law. See Bryan County, 520 U.S. at 403-04, 117 S.Ct. 1382. At best, there is evidence
Bloom also asserts that Toliver failed to ensure all written policies were reviewed on a yearly basis, but Bloom has provided no evidence that such alleged failure caused Bloom to be assaulted by Sexton. Bloom also alleges a policy or custom of a failure to train Jail staff. (See Doc. 148 at 14-15, 17-19, 31-32). He generally faults the training that Pompa, Marshall, and Hammett received, alleging that those defendants did not know the Oklahoma Jail Standards, did not receive sufficient training for supervisory positions, and did not possess knowledge of applicable legal regulations. (See id.). In support of those allegations, Bloom cites certain testimony of the defendants, but review of the record does not support Bloom's claims. For example, Pompa testified that he did see the Jail policies and procedures on the computer, although he could not identify the specific procedures or policies during his deposition. He testified that he received on-the-job training, although he "didn't remember" if his "field training officer" trained him regarding the policies and procedures. Marshall testified that he received training after he was hired and he received copies of the Jail Standards at that time. While Bloom asserts that Toliver promoted Marshall to supervisor without any additional training, Marshall testified that he received "about two weeks" of additional training before he acted as a shift supervisor. Hammett had worked for three years at the Tulsa County Jail prior to joining the Creek County Jail in November, 2011, and his training consisted of an initial 160 hour academy, followed by additional annual training, and he testified that he was tested annually on the Jail Standards during his tenure at the Tulsa County Jail. The record evidence simply does not support Bloom's claim that the Jail employees whose conduct is at issue here received no, or woefully inadequate, training.
With respect to failure to train claims, the Supreme Court has recognized "limited circumstances in which an allegation of a `failure to train' can be the basis for [§ 1983 municipal] liability." Canton, 489 U.S. at 387, 109 S.Ct. 1197. Inadequate training of officers "may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [officers] come into contact." Id. at 388, 109 S.Ct. 1197. The Supreme Court has recently reiterated that "[a] municipality's
A municipality may be liable where "the need for more or different training is so obvious, and the inadequacy [in training] so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need." Canton, 489 U.S. at 390, 109 S.Ct. 1197. "The touchstones of this inquiry, therefore, are the risk inadequate training poses and the [municipality's] awareness of that risk." Brown v. Gray, 227 F.3d 1278, 1288-89 (10th Cir.2000).
In Connick, the Supreme Court further elaborated on the deliberate indifference required to impose municipal liability under § 1983 for a failure to train:
131 S.Ct. at 1359-60 (internal citations and quotations omitted). The Supreme Court also noted that it had not foreclosed "the possibility ... that the unconstitutional consequences of failing to train could be so patently obvious that a [municipality] could be liable under § 1983 without proof of a pre-existing pattern of violations," but reiterated that such liability is only available in a "rare" case involving a "narrow range of circumstances." Id. at 1361 (quoting Bryan County, 520 U.S. at 409, 117 S.Ct. 1382); see also id. at 1366 (Scalia, J., concurring) (characterizing claims as "rare").
Even if the evidence established deficient training of Jail staff, there is no evidence that any policymaker (including the former Sheriff) was on notice of a deficiency that caused violations of citizens' constitutional rights, and there is no evidence of a pattern of similar (alleged) constitutional violations by untrained employees or that any policymaker deliberately chose a training program that would violate inmates' rights. The undisputed evidence shows that this is not one of those rare cases where the "unconstitutional consequences of failing to train [are] so patently obvious" that decision makers could be said to have deliberately disregarded
The County's motion for summary judgment on the official capacity claim (originally asserted against Toliver and subsequently maintained against Davis) is granted.
Bloom's individual capacity claim against former Sheriff Toliver is based upon a supervisory liability theory. As with municipal liability, supervisory liability under § 1983 may not be premised upon a theory of respondeat superior. Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir.2014) (citing Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th Cir.2013)). "[M]ere negligence is insufficient to establish supervisory liability." Johnson v. Martin, 195 F.3d 1208, 1219 (10th Cir.1999). To succeed on a supervisory liability theory, a plaintiff "must show an `affirmative link' between the supervisor and the constitutional violation." Booker, 745 F.3d at 435 (quoting Schneider, 717 F.3d at 767). To show that link, "three elements [are] required to establish a successful § 1983 claim against a defendant based upon his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind." Schneider, 717 F.3d at 767.
Although federal courts appear to uniformly agree that the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) imposes a stricter liability standard for the personal involvement required for supervisor liability, the Tenth Circuit has not yet determined the precise contours of that standard. See, e.g., Booker, 745 F.3d at 435 (noting the contours of the personal involvement requirement "are still somewhat unclear after Iqbal ... [but][w]e need not define those contours here...."). The Tenth Circuit has not overruled its post-Iqbal decision that "§ 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which `subjects, or causes to be subjected' that plaintiff `to the deprivation of any rights ... secured by the Constitution....'" Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir.2010).
Here, Bloom argues that these elements are satisfied because "Toliver ... implemented and maintained a policy, practice and custom of failing to train Jailers; promoting unqualified persons to positions of shift supervisor; and has grossly failed to supervise those subordinates who committed the violations complained of herein." (Doc. 148 at 27). In addition, Bloom asserts that "the personal involvement requirement is satisfied ... because Toliver breached his duty imposed by state and local law which caused plaintiff's constitutional violation." (Id.). The Court disagrees. With respect to personal involvement, Bloom offers nothing other than generalities, alleging that Toliver was responsible for implementing a policy of failing to train. As noted above, the evidence regarding any alleged failure by Toliver or his Jail to train is devoid of any proof of deliberate indifference.
It is undisputed that Toliver had no interaction with Bloom while he was at the Jail, and Bloom has provided no evidence from which it may be inferred that Toliver had any direct or contemporaneous knowledge, or provided approval, of the movement
Toliver also argues that he is entitled to qualified immunity. In resolving questions of § 1983 qualified immunity at the summary judgment stage, courts engage in a two-pronged inquiry. Tolan, 134 S.Ct. at 1865. The first prong "asks whether the facts, `[t]aken in the light most favorable to the party asserting the injury, ... show the officer's conduct violated a [federal] right.'" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)); see also York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th Cir.2008). The second prong asks "whether the [federal] right in question was `clearly established' at the time of the violation." Id. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508,
Because the record is devoid of any evidence that Toliver violated Bloom's constitutional rights, Toliver is entitled to qualified immunity on the first prong of the analysis. As noted above, the record does not support any finding that Toliver had the requisite state of mind — that he knew of an obvious and substantial risk to inmate safety and was deliberately indifferent to that risk — or that Toliver was personally involved in any decision regarding Bloom, or that any policy implemented by him was the cause of any purported constitutional violation. Accordingly, Toliver's motion for summary judgment is granted on the claim against him in his individual capacity.
At the time Bloom was at the Jail, Kelly Birch was the Jail Administrator, and Adam Marshall was a Jail staff member. In their joint motion for summary judgment, Birch and Marshall argue, first, that Bloom has not provided any evidence that those defendants violated Bloom's constitutional rights. In his response, Bloom asserts that "the evidence shows, inmate Shawn Sexton, as he so viciously attacked plaintiff, was in effect standing as the surrogate of Defendants Birch [and] Marshall ...," whom Bloom alleges "had complete and personal knowledge of Sexton's violent propensities," but "decided for some reason that Bloom ... ought to be punished." (Doc. 147 at 13). While Birch was the Jail Administrator and Marshall came on duty at the Jail immediately before Sexton assaulted Bloom, the evidence does not support his allegation that either was involved in the decision to move Bloom to Sexton's cell or was near C212 at the time of the assault on Bloom.
Bloom also generically argues that Birch and Marshall were "neglecting the statutory duties of this office" and that it was their "responsibility to make sure that the Jail's written policies are followed." (Doc. 147 at 26). As noted above in Section III.B, negligence does not establish a constitutional claim. To the extent that Bloom seeks to hold Birch and Marshall responsible for some supervisory shortcoming, Bloom has provided no evidence
Bloom refers vaguely to missing video and audio evidence, but he has offered no analysis of how that unpreserved evidence would in any way support § 1983 claims against Birch and Marshall. While the Court has concluded that Bloom has suffered some prejudice from the Jail's failure to preserve certain evidence (Doc. 228), the Court is unwilling to assume that the missing evidence would implicate Birch or Marshall or show that they were involved in the decision to move Bloom to C-212. As there is no evidence of any action by either Birch or Marshall that violated Bloom's rights, those defendants are entitled to summary judgment.
Birch and Marshall also argue that they are entitled to qualified immunity. For the same reasons set forth above, Birch and Marshall are entitled to qualified immunity on the first prong of the qualified immunity analysis, because Bloom has not established that either defendant violated Bloom's constitutional rights. They are also entitled to qualified immunity because Bloom has not satisfied the "clearly established law" prong, as required to defeat these defendants' assertion of qualified immunity. Ordinarily, to satisfy the clearly established prong, "there must be a Supreme Court or Tenth Circuit decision on point, or clearly established weight of authority from other courts," establishing that the alleged conduct at issue was in violation of federal law. See Seifert v. Unified Gov't of Wyandotte Cty./Kan. City, 779 F.3d 1141, 1159 (10th Cir.2015) (quoting Stewart v. Beach, 701 F.3d 1322, 1331 (10th Cir.2012)). While the law does not require a "scavenger hunt for prior cases with precisely the same facts," the law at the time of the alleged violation must have been clearly established so as to "put officials on fair notice that the described conduct was unconstitutional." Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (quoting Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir.2006) and Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)).
Bloom has not pointed to any on point federal authority that satisfies the clearly established requirement as to Birch or Marshall. In his arguments on the second prong, Bloom does not provide any analysis of federal decisions as of December 2011 that would have given notice to Birch or Marshall that their alleged inactions violated federal law. Bloom asserts that the "clearly established law" in December 2011 consisted of "these legal rules that determine scope of authority of Defendants [which] are found in the Oklahoma statutes on the care of prisoners and inmates; the Oklahoma jail standards; and the Creek County jail policies." (Doc. 147 at 31). Bloom's vague arguments are insufficient to defeat the qualified immunity defenses of Birch and Marshall. Section 1983 vindicates federal rights conferred by the United States Constitution or federal statutes; violations of state law or local regulation or policy, standing alone, do not give rise to a § 1983 claim, and Bloom cites only general provisions regarding basic duties that have little nexus to the facts of this case or the manner in which Bloom
Chad Pompa seeks summary judgment on the basis of qualified immunity as well as arguments that there is no evidence that he had the requisite personal involvement or deliberate indifference to a known risk. Among other things, he contends that he is entitled to summary judgment because (1) he was not present when Bloom was assaulted, as his shift had ended at 7:00 p.m., just before the assault, (2) although he made the decision to move Bloom to segregation unit C-212 with Sexton, there was a "legitimate penological purpose" for doing so, because Bloom had been involved in an altercation with another inmate, (3) Pompa was unaware that Sexton had made any threat against Bloom, and (4) Pompa did not know that Sexton was a violent person who posed a substantial risk to inmates like Sexton. Bloom asserts that a reasonable jury could infer from the evidence that Pompa, a Shift Supervisor whose duties included reviewing all incident and shift reports and was responsible for the physical movement and control of inmates during his shifts, knew that Sexton was violent. Bloom also claims that Pompa admitted that he directed that Bloom be moved to the segregation unit to "discipline" Bloom for being involved in the altercation in the N-Pod unit, which is in violation of clearly established law that punishment of pretrial detainees is unconstitutional.
On the record here, Pompa is not entitled to qualified immunity at this time, because the law was clearly established, at the time that Bloom was assaulted upon the move to C-212, that punishment of a pretrial detainee violated the constitution. Long before December 2011, when Bloom was assaulted, the law was clearly established that the Fourteenth Amendment's Due Process Clause prohibits any punishment of pretrial detainees awaiting trial, as they are presumptively innocent until proven guilty. See Bell v. Wolfish, 441 U.S. 520, 534-39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); see Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir.2013) (determining that, "[b]y [1997], the Supreme Court had held that the Fourteenth Amendment's guarantee of due process prohibits any punishment of those awaiting trial.... punishment is never constitutionally permissible for presumptively innocent individuals awaiting trial") (emphasis in original). As the Supreme Court in Bell stated:
Id. at 535-39, 99 S.Ct. 1861 (citations omitted).
Pursuant to Bell, "[f]irst, [the court] must ask whether an `expressed intent to punish on the part of the detention facility officials' exists. If so, liability may attach. If not, a plaintiff may still prove unconstitutional punishment by showing that the restriction in question bears no reasonable relationship to any legitimate governmental objective." Blackmon, 734 F.3d at 1241 (citations omitted) (quoting Bell, 441 U.S. at 538-539, 99 S.Ct. 1861). In this case, Pompa testified that he directed Bloom's move to the segregation unit "to discipline" Bloom for Bloom's alleged involvement in the altercation with the inmate in N-Pod. He also testified that, although there were other cells with open beds, he could not have moved Bloom to any of the others because such moves "wouldn't have been disciplinary." While answering questions at his deposition regarding several other cells to which Bloom could have been moved on December 11, 2011, Pompa testified as follows:
(Doc. 150-4 at 105-107) (emphasis added).
Pompa has also claimed that he moved Bloom to avoid any further altercations,
Because there is evidence of Pompa's "expressed intent to punish" Bloom by moving him to the Sexton's cell, see Bell, 441 U.S. at 538, 99 S.Ct. 1861, summary judgment is inappropriate on Bloom's Fourteenth Amendment Due Process claim against Pompa. See Blackmon, 734 F.3d at 1241-42 (affirming the denial of summary judgment on qualified immunity defense where there was evidence that "points in more than one direction" regarding the purpose for the use of a restraint chair). In summary, Pompa's motion for summary judgment on qualified immunity is denied because (1) the law was clearly established, well before the assault in December 2011, that punishment of a pretrial detainee violates that detainee's constitutional rights under the Fourteenth Amendment, and (2) there is evidence, which must be construed in Bloom's favor at the summary judgment stage, from which a reasonable jury could find that Pompa's order that Bloom be moved to C-212 with Sexton was done to punish Bloom. This is not to say that such liability will necessarily be found at trial. Pompa is free to present evidence at trial to contest
Pompa also argues that he is entitled to summary judgment because there is no evidence that he was personally involved in any deprivation of Bloom's rights or that he was subjectively aware of a known risk of harm posed by Sexton. (Doc. 117 at 16, 22). There is evidence, construed in favor of Bloom as it must be at this stage, upon which a reasonable jury could find otherwise. It is undisputed that Pompa was personally involved in the decision to move Bloom to what Pompa considered a "disciplinary cell," in order "to discipline" Bloom. As noted in the qualified immunity analysis above, punishment of a pretrial detainee is unconstitutional. In addition, while Pompa denies knowledge that Sexton was violent or posed any risk to Bloom, testimony of other Jail staff supports Bloom's claim that Sexton was known by Jail personnel to be violent, and Sexton had been involved in a number of fights at the Jail. (Doc. 148-9 at 51, ll. 19-22; id. at 62, ll. 16-20). Birch testified that he was aware that Sexton was violent and had been in fights and assaults for "as long as he's been incarcerated." (Doc. 148-3 at 53, ll. 10-21). In the year before he attacked Bloom, Sexton had been placed in segregation in the C unit several times. (Doc. 150-21 at 15-16). Pompa began working at the Jail as a detention officer on January 3, 2011 and thereafter became a shift supervisor, which is the position he was assigned to on December 11, 2011, the day of Bloom's assault. (Doc. 117 at 10, ¶ 6).
Further, Pompa himself had an encounter with Sexton just months before Sexton's assault of Bloom. During that encounter, Sexton continually kicked and beat on a door despite Pompa's directive to stop doing so. When Pompa instructed Sexton to stop, Sexton told Pompa that Pompa "could not do anything about it." As a result, Pompa called another officer to assist him, and the two officers moved Sexton to cell C-212. A reasonable inference could be drawn from this evidence that Pompa, alone, would have moved Sexton if he had considered Sexton's actions to be nonthreatening. But Pompa called for assistance, and his written report indicates that it took the two officers to move Sexton to C-212. Thus, the incident directly involving Pompa supports an inference that Pompa knew that Sexton was violent and posed a risk of harm to Bloom when Pompa ordered that Bloom be moved to the cell with Sexton. (Doc. 148-29 at 1). Pompa's motion for summary judgment on the § 1983 claim will be denied.
Pompa also moved for summary judgment on Bloom's "failure to train" claim (Doc. 117 at 23). For the same reasons that the Court has determined summary judgment must be granted on the failure to train claim asserted against Toliver in his individual and official capacities, summary judgment is appropriate on any such claim against Pompa. Pompa also asserted entitlement to summary judgment on Bloom's "conspiracy" allegations, as such allegations are not cognizable under § 1983, and Bloom failed to dispute or respond to Pompa's request. Accordingly, Pompa's motion for summary judgment will be granted on those claims.
As to Pompa's request that the Court enter summary judgment on Bloom's claim for punitive damages, the Court will decline to do so at this time. It is well-settled that punitive damages are
Jeremiah Hammett asserts that he was not a policy maker and had no training responsibility, such that Bloom may not maintain any claim against Hammett for a failure to train. Bloom has not argued otherwise. Like Pompa, Hammett seeks summary judgment on any conspiracy claim, and Bloom did not respond. Hammett also argues that Bloom may not maintain a § 1983 claim against Hammett for allegedly throwing away certain belongings, and Bloom did not dispute that argument or provide any legal authority supporting such a claim. Accordingly, to the extent that Bloom has asserted claims against Hammett for a failure to train, conspiracy, or destruction of Bloom's property, Hammett's motion for summary judgment is granted on those claims.
With respect to Bloom's § 1983 claim against Hammett in relation to Sexton's attack, Hammett argues that (1) summary judgment should be granted because Hammett was not deliberately indifferent to Bloom's safety, and (2) he is entitled to qualified immunity. His arguments are premised principally upon his claim that he was unaware of a risk of serious harm to Bloom.
Hammett is not entitled to qualified immunity. The Eight Amendment's prohibition of cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including "adequate food, clothing, shelter, and medical care," and to "take reasonable measures to guarantee the safety of the inmates." Farmer, 511 U.S. at 833, 114 S.Ct. 1970. "Prison conditions may be `restrictive and even harsh,' but gratuitously allowing the beating or rape of one prisoner by another serves no `legitimate penological objectiv[e], any more than it squares with `evolving standards of decency.'" Id. at 833-34, 114 S.Ct. 1970 (citations omitted). "Being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society.'" Id. at 834, 114 S.Ct. 1970. The protection afforded convicted inmates under the Eighth Amendment is afforded to pretrial detainees under the Fourteenth Amendment Due Process Clause. Lopez, 172 F.3d 756, 759 n. 2 (10th Cir.1999); see also Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009).
A "prison official may be held liable ... if the official knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847, 114 S.Ct. 1970. This standard has both objective and subjective components. The alleged constitutional deprivation must objectively be "sufficiently serious," such that the risk of harm was
Hammett does not argue a lack of proof on the objective component. Bloom was immediately struck by Sexton upon the opening the Sexton's cell door, causing Bloom to hit his head and fall to the ground, where Sexton continued to pummel him with fists. Bates, the Jail nurse, indicated that she was involved in "saving Billy Bloom's life" after the assault. (Doc. 151-11 at 4, ¶ 17a). This evidence supports Bloom's claim that the harm was "sufficiently serious" as measured objectively.
Invoking an argument that fits within Farmer's subjective component, Hammett argues that there is a lack of evidence that he was aware of any risk of harm to Bloom. The Court disagrees. There is evidence supporting Bloom's claim that Hammett was aware of a substantial risk to Bloom and that, when he called for the cell door to Sexton's cell to be opened, he deliberately disregarded that risk. That evidence includes Hammett's written report that Sexton had warned Hammett that Sexton "better not" put another inmate in Sexton's cell or Sexton would "run him out." (Doc. 151-31). Hammett also told Marshall that "an inmate had warned him against opening that cell door," (Doc. 117-6 at 105, ll. 1-3), and Marshall testified that "Hammett ... told me that Sexton told him not to put him in that cell." (Id. at ll. 7-11).
Bates testified that, soon after Sexton's attack on Bloom, "Hammett told me that shortly prior to the cell door opening inmate Shawn Sexton told [Hammett] `I do not want him in my cell. If you put him in here I will kill that fucking son-of-a-bitch.'" (Doc. 151-35 at 52, ll. 6-15; Doc. 151-11 at 5, ¶ h).
This evidence presents an issue of fact for the jury as to whether Hammett violated
Hammett does not argue the "clearly established law" prong of the qualified immunity defense. In any event, years before Bloom was assaulted in 2011, Farmer clearly established that a "prison official may be held liable ... if the official knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847, 114 S.Ct. 1970. Farmer specifically dealt with the beating and rape of a prisoner by another prisoner and allegations that prison officials failed to protect the prisoner and prevent such harm. See id. The constitutional right was also repeatedly applied in Tenth Circuit cases predating 2011. See, e.g., Tafoya, 516 F.3d at 916 (2008); Howard v. Waide, 534 F.3d 1227, 1242 (10th Cir.2008) (rejecting claim that the constitutional right was not clearly established and stating that "[t]he Supreme Court and the Tenth Circuit have repeatedly and unequivocally established an inmate's Eight Amendment right to be protected from substantial risks of sexual assault by fellow prisoners."); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980) ("an inmate does have a right to be reasonably protected from constant threats of violence ... from other inmates"). Hammett is not entitled to summary judgment on the basis of qualified immunity.
Like Pompa, Hammett requests summary judgment on Bloom's punitive damages claim. For the same reasons stated above as to Pompa's punitive damages argument, the Court will deny Bloom's motion on that issue.
For the foregoing reasons, the Motions for Summary Judgment are
The Tafoya statement regarding deliberate indifference, 516 F.3d at 916, was premised upon and cited statements in Farmer v. Brennan, 511 U.S. 825, 842-44, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), which involved a prison beating and rape but has been cited as controlling authority in countless factual contexts. In Farmer, the Supreme Court stated that a prison official may not "escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault," and "it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." 511 U.S. at 842-44, 114 S.Ct. 1970. While the Tenth Circuit has apparently rejected that deliberate indifference standard for jail suicide cases, its opinion in Cox does not indicate that the Circuit would consider Farmer inapplicable in a case such as this, involving a physical attack. Indeed, in a case against an Oklahoma sheriff for failing to protect a pretrial detainee from assault by other inmates and for alleged indifference to the detainee's medical needs, the Tenth Circuit quoted the foregoing statement from Farmer and noted that "[e]ven if Sheriff LeMaster was unaware of the specific risk to appellant from his cell-mates, this does not relieve him from liability." Lopez, 172 F.3d at 762 n. 5 (emphasis added). Accordingly, the discussion herein applies Farmer's deliberate indifference analysis, rather than the "particularized state of mind" standard identified in Cox, which would require proof of "actual knowledge by a prison official of [the substantial risk] to" a "specific inmate." 800 F.3d at 1249.
Even applying the less-stringent state of mind standard applied in Farmer, Tafoya, Lopez, and a multitude of other cases, Bloom has not presented evidence that Toliver had the requisite state of mind to be considered deliberately indifferent in this case.
In his deposition testimony, Pompa also used "discipline" as a verb and utilized the term "disciplinary," which terms are also frequently tied to "punishment." See Discipline (Punish), Burton's Legal Thesaurus ("
Sexton's statement within Hammett's statement is also not offered to prove the truth of the matter asserted, but is offered to impeach Hammett, who claims that he did not perceive any threat despite telling Bates that such a threat was made, and the threat was a "verbal act" that does not constitute "hearsay." See Fed.R.Evid. 801(c)(2) (by definition, a statement is only "hearsay" if offered "to prove the truth of the matter asserted" in the statement); United States v. Ledford, 443 F.3d 702, 706 (10th Cir.2005) (deputy sheriff's testimony that defendant's wife told deputy that the defendant "told her that if she called the cops he would kill her" was not hearsay, because it was not offered for truth of matter asserted and, even if it were hearsay, the statement would be admissible under the "excited utterance exception"); United States v. Feliz, 794 F.3d 123, 132 (1st Cir.2015) (district court erred in excluding as hearsay a witness's testimony of a threat that she heard an officer make to the defendant; threats are verbal acts offered not for truth of matter asserted and are not hearsay); United States v. Bowles, 751 F.3d 35, 40 (1st Cir.2014) (words offering a bribe or making a threat are "verbal acts that are not hearsay"); Tompkins v. Cyr, 202 F.3d 770, 779 n. 3 (5th Cir.2000) (threats are verbal acts that are not hearsay); United States v. Thomas, 86 F.3d 647, 653 n. 12 (7th Cir.1996) (same); United States. v. Stratton, 779 F.2d 820, 829-30 (2d Cir.1985) (same); United States v. Rodella, 59 F.Supp.3d 1331, 1363 (D.N.M.2014) (same).
