Bettencourt v. Owens et al

Filing 113

ORDER denying 106 Motion to Prevent Defendants from Destroying Documents; adopting in part and not adpoting in part 108 Report and Recommendations. Claims against Defendants Allen, Alls, Autry, Brown, Nobles and Zackary shall proceed. Claims against Owens and Spears are dismissed without prejudice. The stay is lifted, and the case shall proceed in accordance with this Order. Ordered by U.S. District Judge W LOUIS SANDS on 3/28/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
PAUL GEORGE BETTENCOURT,

:
:
Plaintiff,
:
:
v.
:
:
BRIAN OWENS et al,
:
:
Defendants.
:
____________________________________:

CASE NO.: 1:10-cv-133 (WLS)

ORDER
Before the Court is a December 17, 2013 Recommendation from a United States
Magistrate Judge, recommending the dismissal of this 42 U.S.C. § 1983 case for failure to
state a claim. The Court adopts in part and does not adopt in part the Recommendation.
PROCEDURAL BACKGROUND
Plaintiff Paul Bettencourt is an inmate at Autry State Prison. He brought suit pro
se under § 1983 against various prison officials and officers for deliberate indifference to
a serious risk of harm. Bettencourt claims he was raped after prison officials repeatedly
ignored his requests for protection. The magistrate judge summarized the relevant
procedural history, which the Court adopts here.
Bettencourt makes the following allegations in his Amended Complaint: On
August 1, 2009, Bettencourt wrote chief counselor Bengie Nobles, explaining that he
was being sexually harassed by several inmates in the “K” building. The inmates kept
“asking . . . for sex” and were “getting more aggressive as the days go by.” Bettencourt
wrote Nobles again on August 10, 2009, explaining that Officers Brown and Alls refused
him protective custody because he would not share the names of his harassers. In the
letter, Bettencourt described how the inmates “were masturbating off [him] while in the
open shower” and how he feared the situation would become worse.

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On August 10, Bettencourt also wrote Deputy Warden of Security Marty Allen to
request protection. The letter explained he was being sexually harassed and that
Officers Zackary, Alls, and Brown refused to place him in protective custody.
Bettencourt said he could not offer the other inmates’ names for fear of reprisal. The
letter described how the inmates masturbated “off [him] in the open shower” and how
he was afraid they’d attack or stab him if he fought back or shared their names.
Bettencourt sent a third letter to Nobles on August 18, 2009, explaining “that the
situation was out of control.” He gave Nobles the names or aliases of his aggressors. He
said they continued to masturbate to him in the shower and that they were now coming
into his room, grabbing him on the butt, and “trying to make [him] have sex with
them.” In addition, the letter stated that the inmates held him in the cell and forced him
to watch them masturbating. According to the letter, Officers Zackary, Brown, and Alls
refused to provide him protective custody because he did not know the inmates’ real
names. Bettencourt also wrote Allen a second letter on August 18, describing the same
events. In the letter, he also recalled: “The last time we talked you asked me if I was a
homosexual. I told you I was, and you said [sic] “’what’s the problem then.’”
On August 18, 2009, Bettencourt filed an informal grievance about the sexual
harassment. Counselor Hank Autry gave him a formal grievance on August 26 or 27.
Autry did not return to Bettencourt’s building until September 3, 2009. Bettencourt saw
him in the yard and told him he needed to turn in his grievance. In response, Autry said
he would call him to his office after lunch. Around 2:30, Bettencourt had a counselor
call Autry’s office only to find that he was not there.
On August 18, Bettencourt also wrote Brian Owens, the commissioner of the
Department of Corrections. He explained in the letter that he was being sexually
harassed and that other inmates were grabbing his butt and trying to have sex with
him. He also explained his attempts to contact officials at the prison.
Bettencourt also alleges that, throughout this time period, he provided
statements to Officers Brown, Zackary, and Alls requesting protective custody. In these

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statements, Bettencourt described how the inmates were “masturbating off” him,
grabbing his butt, and coming into his room and trying to force him to have sex.
On September 7, 2009, Bettencourt was in his room urinating with his back to the
cell door. He heard the door open. Assuming it was his roommate, he did not turn
around. Suddenly, someone grabbed him by the neck, placed him in a chokehold, and
slammed his head into a wall. Bettencourt passed out and awoke to someone
“performing anal sex” on him. He tried to fight and was “choked out” again.
Afterward, Bettencourt’s friend called the prison to tell authorities he had been
raped. Bettencourt tried to talk to Officer Derrick Spears in the dining hall, but Spears
told him he didn't have time to talk.
On a review under 28 U.S.C. § 1915A, a magistrate judge recommends that the
Court dismiss the case because Bettencourt has failed to allege sufficient facts to show
that the defendants acted with deliberate indifference.
DISCUSSION
Prison officials have a duty under the Eighth Amendment “to protect prisoners
from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994) (citations omitted). “It is not, however, every injury suffered by one prisoner at
the hands of another that translates into constitutional liability for prison officials
responsible for the victim's safety.” Id. at 834. A prison official violates the Eight
Amendment when he or she is subjectively aware of a substantial risk of harm and does
not respond reasonably to that risk. Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.
2003).
To state a deliberate indifference claim, a prisoner must allege facts showing that
the defendants acted with more than mere negligence or carelessness. Franklin v. Curry,
738 F.3d 1246, 1250 (11th Cir. 2013). He must show: “(1) subjective knowledge of a risk
of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross
negligence.” Goodman v. Kimbrough, 718 F.3d 1325, 1331–32 (11th Cir.2013) (internal
quotation marks omitted). In other words, “[t]o be deliberately indifferent a prison
official must know of and disregard ‘an excessive risk to inmate health or safety; the

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official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.’ ” Id. (quoting
Purcell ex rel. Estate of Morgan v. Toombs County, 400 F.3d 1313, 1319–20 (11th Cir. 2003)).
The magistrate judge erred in recommending dismissal of claims against
Defendants Allen, Alls, Autry, Brown, Nobles and Zackary. Bettencourt alleges in his
Complaint and in attached letters he provided statements to Alls, Brown, and Zackary
containing “detailed accounts” about how several inmates continued to sexual harass
him, masturbate to him, come into his room, grab his butt, and try to force him to have
sex. The defendants continued to refuse protective custody. According to the Amended
Complaint, Defendant Autry thought the situation serious enough to warrant a formal
grievance and a corrective response, yet failed to take action until Bettencourt had
already been raped.
Bettencourt wrote and spoke to Allen and Nobles multiple times about his fears
of being raped. He wrote Allen twice. The second letter recounts how Bettencourt spoke
to Allen in person, only to have Allen dismiss his requests for help with a flippant
remark about Bettencourt’s sexual orientation. Bettencourt also claims he wrote
Defendant Nobles three times regarding the harassment. The letters to Nobles evince a
worsening situation, where inmates first harassed Bettencourt and masturbated to him
in the shower and within weeks graduated to corralling him into his cell while they
grabbed his butt, tried to force him to have sex, and required him to watch them
masturbate.
Taken together, the letters and conversations state a plausible claim that the
defendants acted with deliberate indifference. See Rodriguez v. Sec’y, Dep’t of Corr., 508
F.3d 611, 618–19 (11th Cir. 2007) (finding genuine issue of material fact on deliberate
indifference where inmate informed officer twice of threats and wrote a grievance). This
case therefore is distinguishable from case law holding that, without more, letters to
prison officials cannot state a deliberate indifference claim. See Nicholas v. Burnside, No.
5:11-cv-116 (MTT), 2011 WL 2036709, at *3 (M.D. Ga. Apr. 21, 2011); Weems v. St.
Lawrence, No. CV409-065, 2009 WL 2422795, at *4 (S.D. Ga. Aug. 6, 2009). Given the

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context of Bettencourt’s conversations and the liberality of pleading standards, the
Court is not persuaded that Bettencourt’s failure to allege with greater specificity the
content of those conservations is fatal to his claims. It reasonable to infer that, in
following up on his written pleas for help, Bettencourt would have conveyed the same
information to the defendants.
The Court, however, agrees that the Amended Complaint fails to state claims
against Defendants Brian Owens and Spears. As the magistrate judge noted, the single
letter and generalized allegations about widespread violence at the prison were
insufficient to allege that Owens was deliberately indifferent to a risk of harm. For the
reasons stated in the magistrate judge’s Recommendation, the Amended Complaint
also fails to state a claim against Defendant Spears.
CONCLUSION
For those reasons, the Court ADOPTS in part and DOES NOT ADOPT in part
the Recommendation, as follows: The claims shall proceed against Defendants Allen,
Alls, Autry, Brown, Nobles and Zackary. Claims against Owens and Spears are
DISMISSED without prejudice. Bettencourt’s Motion to Prevent Defendants from
Destroying Documents (Doc. 106) is DENIED for the reasons stated in the
Recommendation. The stay is hereby LIFTED, and the case shall proceed in accordance
with this Order.
SO ORDERED, 28th

day of March, 2014.
/S/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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