Kendall et al v. Sutherland et al
Filing
119
ORDER denying as moot Plaintiffs' 109 Motion to Compel; denying Plaintiffs' 108 Motion for Leave to File and 112 Motion to Compel; granting Sheriff Warren's 115 Motion for Summary Judgment. The parties are ORDERED to submit a proposed consolidated pretrial order within 30 days. Signed by Judge Richard W. Story on 03/31/2016. (rsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JESSICA KENDALL, et al.,
Plaintiffs,
v.
ALVIN SUTHERLAND, et al.,
Defendants.
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CIVIL ACTION NO.
1:13-CV-4263-RWS
ORDER
This case comes before the Court on Plaintiffs’ Motion for Leave to
Amend the Second Amended Complaint [108], Motion to Compel Discovery
[109], and Amended Motion to Compel Discovery [112], as well as Defendant
Sheriff Warren’s Motion for Summary Judgment [115]. After reviewing the
record, the Court enters the following Order.
Background1
1
In their Response to Sheriff Warren’s Statement of Material Facts [116-1],
Plaintiffs dispute many of the facts that Sheriff Warren sets forth. In many instances,
however, Plaintiffs’ responses do not conform with the Court’s Local Rules, which
require “concise, nonargumentative responses.” See LR 56.1(B)(2), NDGa. Many of
Plaintiffs’ responses span several pages and either fail to directly refute Sheriff
Warren’s facts or explain why his citations are not supportive of those facts. (See e.g.,
AO 72A
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This civil rights action arises out of the sexual abuse of inmates by two
guards at the Cobb County Adult Detention Center (“CCADC”) from late 2010
until early 2013. Plaintiffs Jessica Kendall, Kimberly McLaughlin,
Alexzandrea Brooks, Stacey Mitchell, and Elizabeth Daley were either pretrial
detainees or serving their sentences at the CCADC at the time the assaults
occurred. Plaintiffs sue Sheriff Neil Warren and the two perpetrators of the
abuse, Sergeant Kristopher Travitz and Sergeant Alvin Sutherland, pursuant to
42 U.S.C. § 1983. Both men were sheriff’s deputies working at the jail.
A.
Sheriff Warren and the CCADC
Sheriff Warren has acted as the Sheriff of Cobb County since 2004 and
is in charge of the entire operation of the Cobb County Sheriff’s Office
(“CCSO”). (Def.’s Statement of Material Facts, Dkt. [115-2] ¶ 13.) At any
given time, he and his command staff are responsible for 800 employees and
more than 2,000 inmates. (Id. ¶ 15.)
The CCSO is responsible for housing pretrial detainees and convicted
Pls.’ Resp. to Def.’s Statement of Material Facts (“Pls.’ SMF”), Dkt. [116-1] at 9-14.)
Others do not contain any information at all, but merely state that Plaintiffs’ response
relies on statements made in other responses. In these instances, the Court must deem
Sheriff Warren’s facts as admitted. See LR 56.1(B)(2)(a)(2), N.D. Ga.
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inmates at the CCADC. (Id. ¶ 2.) The majority of the CCADC staff are sworn
law enforcement officers who are responsible for the day to day supervision
and security in the facility. (Id. ¶ 3.) Sworn deputies must abide by a CCSO
Code of Ethics and Code of Conduct, which require them to obey all federal,
state, and local laws and to conduct themselves in a manner reflecting
favorably on the CCSO. (Id. ¶¶ 4-5.) Prospective deputies are required to pass
an intensive criminal history and background check and, once hired, must
undergo training and attain certification by the Peace Officers Safety and
Training Council (“POST”). (Id. ¶¶ 6-7.) Deputies are trained to report vital
information up the chain of command, which ultimately leads to the Sheriff
himself. (Id. ¶ 8.) While Sheriff Warren does receive inmate grievances if they
are made part of an internal affairs investigation, (Warren Dep., Dkt. [116-6] at
37-38), he does not receive, review, or process grievances as a matter of course.
(Warren Decl., Dkt. [115-14] ¶ 12.) Instead, he must rely on his staff to handle
the day to day operations of all CCSO divisions. (Def.’s SMF, Dkt. [115-2] ¶
16.)
B.
Defendant Sutherland’s Assaults
Defendant Sutherland was initially hired in 2002 by Sheriff Warren’s
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predecessor. (Id. ¶ 45.) Like all new hires, he underwent a criminal history
background check, psychological testing, and obtained the certifications and
training required by the CCSO. (Id. ¶ 46.) He was reprimanded once, in 2005,
for a leave related issue, but otherwise received good performance ratings and
was promoted to the supervisory position of Sergeant in 2009. (Id. ¶ 48.)
Defendant Sutherland sexually assaulted Plaintiff McLaughlin between
April 2012 and January 2013. (Id. ¶ 30). But Plaintiff McLaughlin never filed
an internal complaint or grievance about Defendant Sutherland. (Id. ¶ 31.)2 In
2
This is one example of a fact that Plaintiffs claim to dispute, but that the
Court deems admitted because the response fails to comply with the Court’s Local
Rules. Plaintiffs’ response to this fact—in its entirety—is as follows:
Plaintiff’s [sic] rebuttal to Paragraph 31 of Defendant
Warren’s Statement of Material Facts relies on the
statements made in in [sic] rebuttal to Paragraphs 17, 19 &
26 of Defendant Warren’s Statement of Material Facts.
(Pls.’ SMF, Dkt. [116-1] at 28.) Even if Plaintiffs’ “rebuttals” to “Paragraphs 17, 19
& 26” addressed the fact at issue, this kind of response-by-reference is far afield of
what the Local Rules require. See LR 56.1(B), NDGa. Moreover, the referenced
“rebuttals” do not even relate to whether Ms. McLaughlin ever filed a grievance about
Defendant Sutherland. In fact, Plaintiffs’ response to Paragraph 26 is yet another
response-by-reference—it “relies on the statements made in in [sic] rebuttal to
Paragraphs 10, 19, 24 & 25 of Sheriff Warren’s Statement of Material Facts.” (Pls.’
SMF, Dkt. [116-1] at 24.) The burden does not fall on the Court to track down each
individual paragraph referenced by this and other similar responses to analyze whether
there is a fact issue. Rather, the Local Rules place that burden on Plaintiffs. Where
they have failed to meet that burden, the Court deems Sheriff Warren’s facts admitted.
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fact, when she was first questioned, Plaintiff McLaughlin denied that
Defendant Sutherland had ever acted inappropriately with her. (Id. ¶ 32.) It
was not until her second interview, on January 18, 2013—after Defendant
Sutherland was terminated—that she informed CCSO officials that Defendant
Sutherland engaged in sexual contact with her. (Id. ¶ 34.)
Defendant Sutherland sexually assaulted Plaintiff Brooks on February 4,
2012. (Id. ¶ 36.) She claims that, on that date, Defendant Sutherland “rubbed
his genitals on my buttocks.” (Id.) From the time of this assault until her
release from the CCADC on May 21, 2012, Plaintiff Brooks did not file any
complaint or grievance about Defendant Sutherland. (Id. ¶ 37.) When she was
first questioned about Defendant Sutherland on January 28, 2013, Plaintiff
Brooks denied that he had made any improper sexual contact. (Id. ¶ 39.) It
was not until April 19, 2013 that she informed CCSO officials of any sexual
contact by Defendant Sutherland. (Id. ¶ 40.)
Finally, Plaintiff Kendall reports that “on or about January 11, 2013 . . .
[she] was raped by Sergeant Sutherland.” (Id. ¶ 42.) On January 14, 2013,
Plaintiff Kendall mailed a letter to her lawyer in which she informed him of the
assault. (Id. ¶ 44.)
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C.
Discovery of Sexual Assaults at the CCADC
On January 16, 2013, Plaintiff Kendall’s lawyer contacted Chief Deputy
Milton Beck and reported the rape. (Id. ¶ 51.) Chief Deputy Beck informed
command staff of the incident, including Sheriff Warren, and both criminal and
internal affairs investigations were immediately initiated. (Id. ¶ 52.)
In a recorded interview on January 17, 2013, Plaintiff Kendall named
Defendant Sutherland as her assailant, but made no mention of any prior
attempts to inform CCSO officials of the rape. (Id. ¶ 54.) Defendant
Sutherland was separately interviewed that same day, after which he was
terminated from his employment and arrested. (Id. ¶ 55.)
During the course of the internal affairs investigation, investigators
uncovered evidence that Defendant Sutherland also assaulted Plaintiff
McLaughlin and Plaintiff Brooks. (Id. ¶ 57.) As discussed above, Plaintiff
McLaughlin at first denied that Defendant Sutherland had engaged in
misconduct, but later admitted that he had sexual contact with her. (Id. ¶¶ 5758.) Likewise, Plaintiff Brooks did not allege that Defendant Sutherland had
sexual contact with her until April 19, 2013. (Id. ¶ 61.) Sheriff Warren claims
that he was not aware at any time prior to January 16, 2013 that Defendant
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Sutherland was assaulting female inmates at the CCADC, nor had he received
any information that might lead him to believe that Defendant Sutherland was
engaged in such conduct or that he was a threat to inmate health or safety. (Id.
¶ 20, 23.)
Soon after Sheriff Warren terminated Defendant Sutherland, an inmate
named Latrice Jackson told a deputy that she had alerted staff about Defendant
Sutherland’s misconduct months previously and that they took no action. (Id. ¶
65.) In total, Ms. Jackson claims to have written one note and two formal
grievances detailing Defendant Sutherland’s misconduct. (See id. ¶¶ 66, 68.)
Based on information she provided, an investigation was opened to determine
if any staff at the CCADC violated policy in handling documents or
information that Ms. Jackson provided. (Id. ¶ 67.) As a result of this
investigation, two CCSO employees were reprimanded for failing to properly
process Ms. Jackson’s grievances and not ensuring that the information was
communicated up the chain of command. (Id. ¶ 72.)
The investigation of Defendant Sutherland led to a similar investigation
of Defendant Travitz, which began at the end of January, 2013. (Id. ¶ 63.)
Following an interview, Defendant Travitz was also terminated and arrested for
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sexually assaulting Plaintiffs Mitchell and Daley.3 (Id. ¶ 64.)
Plaintiffs filed this action on December 26, 2013. (See Compl., Dkt.
[1].) They have already amended their complaint twice, filing the Second
Amended Complaint on April 10, 2014. While this case originally included
additional claims and defendants, the only claims now remaining are against
Defendants Travitz, Sutherland, and Sheriff Warren in his individual capacity.
The only claim against Sheriff Warren is a § 1983 claim for deliberate
indifference. (See Dkt. [51] at 42.) Plaintiffs now move to amend their
complaint for a third time and to compel discovery of certain documents that
Sheriff Warren is allegedly withholding. For his part, Sheriff Warren moves
for summary judgment on the deliberate indifference claim.
Discussion
I.
Plaintiffs’ Motion for Leave to Amend the Second Amended
Complaint [108]
A.
Legal Standard
3
The Court previously dismissed all claims against Sheriff Warren based on
Defendant Travitz’s conduct. (Dkt. [51] at 28.) Thus, Sheriff Warren did not include
any facts about Defendant Travitz’s specific conduct in his Statement of Material
Facts [115-2]. Nor did Plaintiffs file a statement of additional facts to add them. As
such, the Court only briefly mentions Defendant Travitz here, but will fill in facts
about him, as necessary, throughout this Order.
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Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, a party may
amend a pleading once as a matter of right within twenty-one days after service
of the pleading, or, if the pleading requires a response, within twenty-one days
after service of a responsive pleading or motion filed under Rule 12(b), (e), or
(f). Otherwise, under Rule 15(a)(2), the party must seek leave of court or the
written consent of the opposing parties to amend. Rule 15(a)(2) directs the
Court, however, to “freely give leave when justice so requires.” Despite this
instruction, however, leave to amend is “by no means automatic.” Layfield v.
Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979).4 The trial court
has “extensive discretion” in deciding whether to grant leave to amend.
Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir.1999). A trial court
may choose not to allow a party to amend “when the amendment would
prejudice the defendant, follows undue delays, or is futile.” Id. A claim is
futile if it cannot withstand a motion to dismiss. Fla. Power & Light Co. v.
Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir.1996); see Burger King
Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.1999) (futility is another way
4
In Bonner v. City of Prichard, the Eleventh Circuit Court of Appeals adopted
as binding precedent all decisions of the former Fifth Circuit decided before October
1, 1981. 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
9
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of saying “inadequacy as a matter of law”). That is, leave to amend will be
denied “if a proposed amendment fails to correct the deficiencies in the
original complaint or otherwise fails to state a claim.” Mizzaro v. Home Depot,
Inc., 544 F.3d 1230, 1255 (11th Cir. 2008).
B.
Analysis
Plaintiffs move to amend the Second Amended Complaint by adding
nine new Defendants.5 (See Proposed Third Am. Compl., Dkt. [108-1].)
Sheriff Warren opposes this proposed amendment, arguing that it is futile,
unduly prejudicial, and that Plaintiffs unduly delayed in filing it.6 (See Def.’s
Br. in Opp’n to Pls.’ Mot. for Leave to Amend (“Def.’s MTA Resp.”), Dkt.
5
The proposed Defendants were all employees at the CCADC while
Defendants Sutherland and Travitz were perpetrating their assaults. (See Proposed
Third Am. Compl., Dkt. [108-1] ¶ 20.) They include: Colonel Janet Prince, Major
Gary Dennis, Major Vincent Smith, Major Joseph Barger, Lieutenant Michael
Tankersley, Sergeant Demetress Patrick, Deputy Queenesta Neville-Belle, Deputy
Nadja Alexandra Bauer, and Deputy Jenna Hall Duncan. (Id. ¶¶ 10-18.)
6
Sheriff Warren also argues that, in addition to satisfying Rule 15(a)(2),
Plaintiffs must show good cause to amend under Rule 16(b)(4) because they filed their
motion after the deadline set out in the Court’s March 3, 2015 Scheduling Order. A
review of the Joint Preliminary Report and Discovery Plan (“Preliminary Report”),
however, reveals that Plaintiffs gave notice of their intent to amend the pleadings after
the end of discovery. (Dkt. [55] at 8.) Because the Court did not expressly address
this aspect of the Preliminary Report in its Scheduling Order, the Court will not
require Plaintiffs to show good cause.
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[111].) Plaintiffs have filed nothing in reply. The Court will summarize the
allegations as to the proposed Defendants before ruling on Plaintiffs’ motion.
1.
Allegations in the Proposed Third Amended Complaint
While Plaintiffs do not allege that any of the proposed Defendants were
directly involved in any of the sexual assaults perpetrated by Defendants
Sutherland or Travitz, they do allege that the proposed Defendants either
facilitated the assaults or ignored or destroyed grievances documenting them.
a.
The September 1, 2012 Grievance
Plaintiffs first allege that many of the proposed Defendants negligently
violated jail policies by mishandling a note Latrice Jackson wrote on
September 1, 2012, which claimed that Defendant Sutherland and Plaintiff
McLaughlin were having a sexual relationship. (Proposed Third Am. Compl.,
Dkt. [108-1] ¶ 46.) In particular, Plaintiffs allege that Ms. Jackson gave the
note to Deputy Hall, who then passed it along to Sergeant Patrick. (Id.)
Sergeant Patrick then took it to her supervisors—Major Dennis and Lieutenant
Tankersley—who told her not to document the allegations about Defendant
Sutherland in her incident report. (Id. ¶¶ 47-48.) Plaintiffs allege that Sergeant
Patrick then drafted her incident report, but did not include any language about
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Sergeant Sutherland’s sexual conduct. (Id. ¶ 49.) Contrary to policy at the
CCADC, Majors Smith and Dennis then failed to initial the hard copy of the
incident report. (Id. ¶ 51.) Ultimately, Plaintiffs claim that the report landed
on Colonel Prince’s desk. (Id. ¶ 53.)
b.
The September 11, 2012, and October 18, 2012
Grievances
Plaintiffs next point to alleged misconduct relating to two other
grievances Ms. Jackson filed. She filed the first one on September 11, 2012,
and the second on October 18, 2012. (Id. ¶¶ 56, 58.) In both, she reiterated her
concerns and complained that nothing had been done despite her past reports of
Defendant Sutherland’s misconduct. (Id.) Lieutenant Tankersley and Major
Dennis were assigned to respond to both of these grievances, but did not, even
though both were marked “closed” in the computer system. (Id. ¶¶ 57-59.) As
to the September 11 grievance, Plaintiffs allege that Lieutenant Tankersley
“shoved the grievance into a drawer” and that it was not seen again until
January 23, 2013. (Id. ¶ 57.)
Several allegations also relate to Colonel Prince. To begin, Plaintiffs
allege that Colonel Prince was in possession of at least four copies of the
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October 18 grievance, but that they have never been produced as they are
“missing.” (Id. ¶ 60.) Plaintiffs also contend that Colonel Prince ordered a
deputy to go into Ms. Jackson’s cell and remove her personal copies of both
grievances, which were Ms. Jackson’s only evidence that she had filed them.
(Id. ¶¶ 61-62.) Plaintiffs claim that Colonel Prince destroyed these grievances
in anticipation of litigation. (Id. ¶ 126.)
After receiving no response to her grievances, Plaintiffs allege that Ms.
Jackson spoke to Major Dennis, Lieutenant Tankersley, and Deputy Bauer
about Defendant Sutherland’s inappropriate conduct with Plaintiff McLaughlin
and why nothing was being done. (Id. ¶ 64.) But according to Plaintiffs, no
one ever asked Ms. McLaughlin about the allegations. (Id.)
c.
Other Allegations of Misconduct
The remainder of Plaintiffs’ new allegations revolve around proposed
Defendants facilitating Defendant Sutherland’s abuses. First, Plaintiffs allege
that sometime between February 4, 2012, and January 17, 2013, Deputy
Neville-Belle removed Plaintiff McLaughlin from M-Pod so that Defendant
Sutherland could sexually assault her. (Id. ¶ 44.) Similarly, on December 23,
2012, Plaintiffs allege that Deputy Neville-Belle removed Plaintiff McLaughlin
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from her cell and turned her over to Defendant Sutherland, upon his request,
even though his shift had already ended. (Id. ¶ 69.) Deputy Hall was allegedly
present when Defendant Sutherland came to pick Plaintiff McLaughlin up, but
did not intervene even though she knew that inmates had accused Defendant
Sutherland of sexual misconduct. (Id. ¶ 70.)
Based on all the allegations described above, Plaintiffs claim that the
proposed Defendants knew that Defendants Sutherland and Travitz were
sexually abusing inmates, but failed to stop the assaults by failing to enforce or
comply with policies at the CCADC. (Id. ¶¶ 106-07.) Moreover, Plaintiffs
claim that the proposed Defendants “engaged in systematic corruption by
hiding and/or destroying documents which revealed the sexual assaults
committed by Defendant Sutherland.” (Id. ¶ 98.) Thus, Plaintiffs wish to add
claims against the proposed Defendants for: (1) violation of Plaintiffs’ Eighth
and Fourteenth Amendment rights through the negligent enforcement of jail
policies and procedures under § 1983; and (2) state law negligence.7 (Id. ¶¶ 797
Plaintiffs articulate the state law negligence claims as violations of O.C.G.A.
§ 51-1-2 for negligent performance of ministerial job duties. (Proposed Third Am.
Compl., Dkt. [108-1] at 44-45.) But that statute merely defines “ordinary diligence”
and “ordinary negligence.” See O.C.G.A. § 51-1-2. Thus, the Court construes these
as negligence claims.
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87, 143-46.)
2.
Plaintiffs Unduly Delayed in Filing Their Motion
Plaintiffs give only one reason why they waited so long to file their
motion: they only recently learned many of the facts supporting their claims
through discovery. (Pls.’ Mot. for Leave to Amend (“Pls.’ MTA”), Dkt. [108]
at 9-10.) The Court does not, however, find this persuasive.
Plaintiffs claim that they did not have the identities of the proposed
Defendants or knowledge of their misconduct when they filed the previous
complaints. (Id. at 1-2.) Yet in the original Complaint, Plaintiffs named at
least two of the proposed Defendants: Deputy Bauer and Major Dennis. As to
Deputy Bauer, they alleged that “Sergeant Sutherland was assisted by at least
two other Sheriff’s Deputies (Ms. Adams and Ms. Bauer).” (Compl., Dkt. [1] ¶
19.) And as to Major Dennis, Plaintiffs alleged that Ms. Jackson informed
several people, including Major Dennis, that Defendant Sutherland was having
a sexual relationship with Ms. McLaughlin. (Id. ¶ 22.) Plaintiffs then repeated
nearly identical allegations in the Second Amended Complaint. (See Second
Am. Compl., Dkt. [26] ¶¶ 44, 47.)
Likewise, Sheriff Warren named at least seven of the proposed
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Defendants in his initial disclosures, which he filed on March 3, 2015. He
indicated that Colonel Prince, Major Dennis, Lieutenant Tankersley, Sergeant
Patrick, Deputy Duncan, Deputy Bauer, and Major Smith all might have
information as to his defenses. (Def.’s Initial Disclosures, Dkt. [56] at 9-12.)
And Plaintiffs listed all of the proposed Defendants in their Amended Witness
List, which they filed on July 17, 2015. (Pls.’ Second Am. Witness List, Dkt.
[99].) While this does not mean that Plaintiffs learned nothing in discovery to
support their proposed claims, it certainly detracts from the credibility of their
argument that, until very recently, they were unaware of even the proposed
Defendants’ identities.
Perhaps more importantly, Plaintiffs themselves provide evidence that
they knew of the facts supporting their new claims long before they requested
leave to amend. Plaintiff Kendall swore under oath that the facts contained in
the Proposed Third Amended Complaint were true and correct, but she did so
on June 3, 2015—nearly three months before Plaintiffs filed their Motion for
Leave to Amend [108]. (Proposed Third Am. Compl., Dkt. [108-1] at 50.) The
other Plaintiffs signed similar verifications on July 14, July 15, and August 15,
2015. (Id. at 49, 51-53.) If these statements are true, then Plaintiffs could have
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filed their motion much earlier than August 20, 2015. What is more, the
allegations about Deputy Neville-Belle and Deputy Hall assisting Defendant
Sutherland by turning Ms. McLaughlin over to him were certainly known to
Plaintiffs even before they filed their original Complaint. Plaintiffs would not
need the benefit of discovery for Plaintiff McLaughlin to know who removed
her from her cell. See Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th
Cir. 1999) (finding undue delay where the facts upon which the claims were
based were available at the time the complaints were filed).
Aside from their blanket assertion that “[m]any of the facts only recently
became known through the discovery process,” Plaintiffs fail to explain why
they delayed in filing their motion. (Pls.’ MTA, Dkt. [108] at 10.) In fact, their
entire argument section is only two paragraphs long and provides no indication
of precisely when Plaintiffs learned the information needed to support their
new claims or why they waited until after unlimited discovery ended to file
their motion.8 (Id. at 9-10.) Moreover, with so little argument supporting their
motion, the Court is troubled that Plaintiffs did not file a reply brief even after
8
The Court recognizes that it granted a limited extension of discovery so that
Plaintiffs could depose Defendant Travitz and Major Smith, but unlimited discovery
ended on August 2, 2015. (See Dkt. [81].)
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Sheriff Warren highlighted the extent of their delay. For all these reasons, the
Court finds that Plaintiffs unduly delayed in filing their Motion for Leave to
Amend [108].
3.
Granting Leave to Amend Would Cause Undue Prejudice
The Court also finds that granting leave to amend would cause Sheriff
Warren and the proposed Defendants undue prejudice. Sheriff Warren has
already filed a Motion for Summary Judgment [115] that is fully briefed and
submitted to the Court. Granting Plaintiffs leave to amend would moot this
motion and force Sheriff Warren to file and brief a new motion. Given the
Court’s reservations about Plaintiffs’ delay, it is unwilling to put Sheriff
Warren in that position. And with discovery now closed, granting leave to
amend would mean either reopening discovery or preventing the proposed
Defendants from conducting any discovery at all. Thus, the Court could not
avoid prejudice to either Sheriff Warren or the proposed Defendants. See
Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008) (holding that, with
discovery closed, granting a motion to amend would have caused the
defendants undue prejudice because they could not have conducted discovery
on the new claims); Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171,
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1186 (11th Cir. 2013) (“[P]rejudice is especially likely to exist if the
amendment involves new theories of recovery or would require additional
discovery.”) (quotation and citation omitted).9
Because the Court finds that Plaintiffs filed their motion with undue
delay and that granting it would cause Sheriff Warren and the proposed
Defendants undue prejudice, Plaintiffs’ Motion for Leave to Amend [108] is
DENIED.
II.
Plaintiffs’ Amended Motion to Compel Discovery [112]10
Plaintiffs seek to compel discovery of an array of documents including
certain complaints Ms. Jackson made to employees at the CCADC and “10 to
12” missing grievances that Plaintiffs’ counsel suspect to be reports of
inappropriate sexual contact between Cobb County Sheriff’s Deputies and
inmates at the CCADC. (Pls.’ Am. Mot. to Compel Disc. (“Pls.’ MTC”), Dkt.
9
The Court notes that granting leave to amend would also cause prejudice to
both Sheriff Warren and the proposed Defendants because they would be forced to
defend against new claims even though many are likely time-barred. This also means
that the proposed amendment would be futile. See Fetterhoff v. Liberty Life Assur.
Co., 282 F. App’x 740, 743 (11th Cir. 2008) (affirming denial of motion to amend
where the new claims were futile because they were time-barred).
10
In light of this amended motion, Plaintiffs’ original Motion to Compel
Discovery [109] is DENIED as moot.
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[112].)
Rule 37(a)(1) permits parties to file a motion to compel disclosures or
discovery. FED. R. CIV. P. 37(a)(1). Such a motion is appropriate under several
circumstances, including where the opposing party fails to produce documents
as requested under Rule 34. FED. R. CIV. P. 37(a)(3)(B)(iii)-(iv). A motion to
compel must include a certification that the movant has made a good faith
effort to confer with the opposing party to obtain the disclosure or discovery
without court intervention. FED. R. CIV. P. 37(a)(1); LR 37.1(A)(1), NDGa.
The Local Rules also require that the movant: quote verbatim the request to
which objection is taken; state the specific objection and its grounds; and cite
authority and reasons supporting the motion. LR 37.1(A)(2)-(5), NDGa.
At its core, Plaintiffs’ motion fails to comply with the Local Rules.
Plaintiffs identify three discovery requests as the basis of their motion:
Requests for Production 7, 10, and 11. Plaintiffs quote language from these
requests in the beginning of their motion, but never reference them again. Nor
do they state their objections with any specificity. To the extent Plaintiffs raise
objections, they are scattered throughout the motion and it is often unclear
which discovery request Plaintiffs are referencing. This will not do under the
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Local Rules. See LR 37.1(A), NDGa (“The motion shall be arranged so that
the objection, grounds, authority, and supporting reasons follow the verbatim
statement of each specific disclosure . . . or request for inspection to which an
objection is raised.”). Plaintiffs also fail to cite sufficient supporting authority.
Throughout their entire motion, Plaintiffs cite only a single case from the Tenth
Circuit: Centennial Archaeology, Inc. v. Aecon, Inc., 688 F.3d 673 (10th Cir.
2012). And Plaintiffs do not even rely on Aecon to support the substance of
their Motion to Compel, but merely to prop up their claim for attorneys’ fees
related to filing it. (Pls.’ MTC, Dkt. [112] ¶¶ 34-39.) Given the other
deficiencies of Plaintiffs’ motion, the Court finds this lone citation insufficient.
See LR 37.1(A)(5), NDGA (requiring the movant to “[c]ite authority and
include a discussion of the reasons assigned as supporting the motion”). For all
these reasons, Plaintiffs’ motion fails to comply with the Local Rules and is
due to be denied.
Nonetheless, the Court will address the merits of the motion by
analyzing each Request for Production that Plaintiffs cite.11 The first is
11
In addition to those discussed below, Plaintiffs’ motion references a wide
range of documents that Sheriff Warren allegedly failed to produce. For example,
Plaintiffs seek “pod logs” for the period between January 1, 2012 through January 17,
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Request for Production 7, which Plaintiffs quote as follows: “Produce all
documents pertaining to gathered by [sic] Cobb County while investigating
Alvin Sutherland, [or] Christopher Travitz . . . including but not limited to
Internal Affairs investigative reports.” (Pls.’ MTC, Dkt. [112] at 4.) Based on
this Request, Plaintiffs seek to compel production of “10 to 12” grievances that
Lieutenant Tankersley found in a file cabinet on January 23, 2013. (Id. at 7.)
Ms. Jackson authored at least one of these “missing” grievances, and Plaintiffs
speculate that all of them reported inappropriate sexual contact by Cobb
County Sheriff’s Deputies and inmates at the CCADC. (Id. at 9.) According to
Plaintiffs, these grievances fall within the scope of Request for Production 7,
yet were never produced.
But Sheriff Warren already fully complied with Request for Production
7. On April 1, 2015, Sheriff Warren responded to the request by agreeing to
produce all documents gathered while investigating Defendant Sutherland.
2013. (Pls.’ MTC, Dkt. [113] at 11-12.) Plaintiffs fail, however, to link any of these
documents to Requests for Production 7, 10, or 11, which are the only discovery
requests cited in the motion. Without knowing how documents fit in with Plaintiffs’
discovery requests, the Court cannot decide whether to compel their production.
Thus, the Court will limit its analysis to only those documents expressly linked to
Requests for Production 7, 10, or 11.
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Sheriff Warren later supplemented this response on numerous occasions,
producing a total of over 2,700 documents relating to both Defendants
Sutherland and Travitz. (Def.’s Resp. to Pls.’ Mot. to Compel Disc. (“Def.’s
MTC Resp.”), Dkt. [113] at 4, 19.) Among those documents were all
grievances from January 2012 to January 2013 except for any containing
medical information. (Id. at 19 n.10.) After Lieutenant Tankersley located the
“missing” grievances, they were processed normally. (Prince Mem., Dkt. [1125] at 1.) Thus, it is likely that most, if not all of the “missing” grievances are
included in the documents Sheriff Warren already produced. (Def.’s MTC
Resp., Dkt. [113] at 19 n.10.) As Sheriff Warren already complied with
Request for Production 7, there is nothing for the Court to compel.
Next are Plaintiffs’ Requests for Production 10 and 11. The language of
these requests is as follows:
•
Number 10: “Produce all documents pertaining
to any and all complaints, regardless of the
format that the document and or information is
retained or stored, that was filed by Latrice
Jackson and / or any other C[C]ADC inmate
regarding Alvin Sutherland or any other
employee at CCADC.” (Pls.’ MTC, Dkt. [112]
at 1-2.)
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•
Number 11: “Produce all documents pertaining
to information related to Latrice Jackson’s
complaints to CCADC employees.” (Id. at 1.)
While these are separate requests, Number 11 seeks documents covered by
Number 10, so the Court will analyze them together.
Based on these two requests, Plaintiffs seek: (1) a copy of the grievance
Ms. Jackson filed on October 18, 2012; and (2) the second of two notes she
allegedly wrote about Defendant Sutherland having a sexual relationship with
Plaintiff McLaughlin. (Id. at 2, 7.) Sheriff Warren has made clear, however,
that he is not in possession of either of these documents. (Def.’s Sixth Suppl.
Resps. to Pls.’ Req. for Produc. of Docs., Dkt. [113-7] at 4-5.) He concedes
that the October 18, 2012 grievance exists and was logged, but he has failed to
uncover a copy despite an extensive search. (Def.’s MTC Resp., Dkt. [113] at
20.) As for the second note, Sheriff Warren is not even aware that such a note
exists, much less that it is in his possession. (Id. at 21.) In short, he has
produced all responsive documents in his possession.
Because Plaintiffs’ motion fails to comply with the Local Rules and
because the Court finds that Sheriff Warren has already fully complied with
Requests for Production 7, 10, and 11, Plaintiffs’ Amended Motion to Compel
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Discovery [112] is DENIED.
III.
Sheriff Warren’s Motion for Summary Judgment [115]
A.
Legal Standard
Rule 56 requires that summary judgment be granted “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). “The moving
party bears ‘the initial responsibility of informing the . . . court of the basis for
its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence of a genuine issue of material
fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted)). Where the moving party makes such a showing, the
burden shifts to the non-movant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
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of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Moreover, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences that are
reasonable. “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
B.
Analysis
On November 5, 2014, the Court dismissed all claims against Sheriff
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Warren except for Plaintiffs Kendall, McLaughlin, and Brook’s § 1983
deliberate indifference claim against him in his individual capacity. (Dkt. [51]
at 42.) Sheriff Warren now moves for summary judgment as to that claim,
arguing that he did not have subjective knowledge that Defendant Sutherland
was going to act unlawfully and that, as such, he is entitled to qualified
immunity.
1.
Qualified Immunity and the Eighth Amendment
The doctrine of qualified immunity protects government officials
performing discretionary functions from being sued in their individual
capacities. Wilson v. Layne, 526 U.S. 603, 609 (1999). Officials are shielded
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To receive qualified
immunity, a government official first must prove that he was acting within his
discretionary authority.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.
2003). Once the government official has satisfied this initial burden, the
burden shifts to the plaintiff to show that the official is not entitled to qualified
immunity. Id. at 1358. Just as it did in its previous Order, the Court finds that
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Sheriff Warren was acting within his discretionary authority in managing the
jail and supervising deputies. (See Dkt. [51] at 24.)
Next, whether an official is entitled to qualified immunity is determined
by a two-step inquiry: One inquiry is “whether the plaintiff’s allegations, if
true, establish a constitutional violation.” Barnett v. City of Florence, 409 F.
App’x 266, 270 (11th Cir. 2010) (citing Hope v. Pelzer, 536 U.S. 730, 736
(2002)). “If the facts, construed . . . in the light most favorable to the plaintiff,
show that a constitutional right has been violated, another inquiry is whether
the right violated was ‘clearly established.’” Id. (citing Saucier v. Katz, 533
U.S. 194, 201 (2001)). “Both elements of this test must be present for an
official to lose qualified immunity, and this two-pronged analysis may be done
in whatever order is deemed most appropriate for the case.” Id. (citing Pearson
v. Callahan, 555 U.S. 223, 241 (2009)).
To show a violation of an inmate’s rights under the Eighth Amendment,12
12
“The Eighth Amendment applies to convicted inmates. A pretrial detainee’s
‘constitutional rights arise not from the Eighth Amendment, but from the Due Process
Clause of the Fourteenth Amendment.’” Purcell ex rel. Estate of Morgan v. Toombs
County, 400 F.3d 1313, 1318 n.13 (11th Cir. 2005) (quoting Hale v. Tallapoosa
County, 50 F.3d 1579, 1582 n.4 (11th Cir. 1995)). “‘[T]he standard[, however,] for
providing basic human needs to those incarcerated or in detention is the same under
both the Eighth and Fourteenth Amendments.’” Id. (quoting Marsh v. Butler County,
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“Plaintiff must ‘produce sufficient evidence of (1) a substantial risk of serious
harm; (2) the defendant[’s] deliberate indifference to that risk; and (3)
causation.’” Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d
1313, 1319 (11th Cir. 2005) (quoting Hale v. Tallapoosa Cty., 50 F.3d 1579,
1582 (11th Cir. 1995)). “To be deliberately indifferent a prison official must
know of and disregard ‘an excessive risk to inmate health or safety; the 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. at 1319-20 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In
other words, deliberate indifference requires “(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) (emphasis added). “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence, and a
268 F.3d 1014, 1024 n.5 (11th Cir. 2001) (en banc)). Some Plaintiffs here were
pretrial detainees while others were convicted inmates. Because the applicable
standards are the same for all Plaintiffs, for simplicity’s sake the Court refers only to
the Eighth Amendment in evaluating Plaintiffs’ claim.
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factfinder may conclude that a prison official knew of a substantial risk from
the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
To establish supervisory liability for a constitutional violation against a
defendant like Sheriff Warren, a plaintiff must allege that the supervisor
“personally participated in the alleged unconstitutional conduct or that there is
a causal connection between the actions of a supervising official and the
alleged constitutional deprivation.” Key v. Lundy, 563 F. App’x 758, 760
(11th Cir. 2014) (quoting Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir.
2013)). Here, Plaintiffs do not allege that Sheriff Warren personally
participated in sexual abuse, so they must show a causal connection between
his actions and the alleged violation of Plaintiffs’ Eighth Amendment rights. In
its previous Order, the Court found that Plaintiffs failed to allege the necessary
causal connection except on one theory: Sheriff Warren knew that Defendant
Sutherland would act unlawfully and failed to stop him. (Dkt. [51] at 36.)
Thus, the narrow issue before the Court is whether Sheriff Warren had
subjective knowledge that Defendant Sutherland would act unlawfully at the
time of each assault, yet failed to intervene.
2.
Did Sheriff Warren Have Subjective Knowledge?
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Plaintiffs’ brief is full of allegations about sweeping misconduct at the
CCADC. Plaintiffs use these allegations to argue that Sheriff Warren knew or
should have known about Defendant Sutherland’s misconduct and that he
violated Plaintiffs’ constitutional rights by failing to take action. Ultimately,
however, Plaintiffs cite nothing in the record revealing that Sheriff Warren had
any idea about Defendant Sutherland’s sexual assaults until January 2013, at
which time Defendant Sutherland was promptly investigated, terminated, and
arrested.
Plaintiffs’ first argument does not relate to Defendant Sutherland at all,
but instead centers around Sheriff Warren’s alleged knowledge about
Defendant Travitz. Around November 5, 2010, Plaintiffs claim that several
inmates made verbal complaints to the CCADC staff about Defendant Travitz
having an inappropriate relationship with an inmate named Jessica Whitaker.
(Pls.’ Br. in Opp’n to Def.’s Mot. for Summ. J. (“Pls.’ MSJ Opp’n”), Dkt. [116]
¶ 15.) This resulted in an internal affairs investigation, but Plaintiffs claim that
Defendant Travitz engaged in sexual activity with a number of individuals at
the CCADC even while the investigation was ongoing, including Plaintiffs
Mitchell and Daley. (Pls.’ MSJ Opp’n, Dkt. [116] ¶ 23.) On November 8,
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2010, Sheriff Warren received a memorandum advising him that Defendant
Travitz was subject to this investigation for sexual misconduct. (Mem., Dkt.
[116-5].) Based on his receipt of this memorandum, Plaintiffs seem to argue
that Sheriff Warren knew not only that Defendant Travitz posed a threat to
Plaintiffs, but also that Defendant Sutherland posed a similar threat.
There are three problems with Plaintiffs’ argument. First, as discussed
above, the Court already dismissed any claims against Sheriff Warren based on
Defendant Travitz’s misconduct. (Dkt. [51] at 28.) To the extent Plaintiffs’
argument is an attempt to restate those claims, they are barred from doing so.
Second, the question before the Court is whether Sheriff Warren had subjective
knowledge that Defendant Sutherland was dangerous, not Defendant Travitz.
Even if the November 2010 allegations against Defendant Travitz were true,
they would not put Sheriff Warren on notice of any possible misconduct on
Defendant Sutherland’s part. Finally, the officials investigating Defendant
Travitz ended their inquiry after determining that the claims against him were
unfounded. (Beck Decl., Dkt. [115-13] ¶ 41.) Thus, even assuming that
Sheriff Warren could somehow infer that Defendant Sutherland would engage
in sexual misconduct if Defendant Travitz already was, Sheriff Warren
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ultimately had no reason to believe that Defendant Travitz was engaging in
such conduct in November 2010.
Plaintiffs next argue that Sheriff Warren knew about Defendant
Sutherland’s misconduct because of Ms. Jackson’s grievances. (Pls.’ MSJ
Opp’n, Dkt. [116] ¶¶ 38-39.) Plaintiffs claim that Sheriff Warren must have
seen these grievances because he admitted that these types of allegations would
have been brought to his attention. (Id. ¶ 39.) Plaintiffs present no evidence,
however, that Sheriff Warren actually received these grievances. In fact, they
appear to concede that these grievances were mishandled, meaning that they
were not passed up along the chain of command. (Id. ¶¶ 48-49.) And Sheriff
Warren presents evidence to precisely that effect. (Beck Decl., Dkt. [115-13] ¶
79-83.) In his Declaration, Chief Deputy Beck specifically states that
“[b]ecause the initial Jackson letter and grievance were not properly processed,
neither one was brought to the attention of the Command Staff, including
Sheriff Warren, until after Sutherland was arrested on January 17, 2013.” (Id.
¶ 83.) As for Ms. Jackson’s second grievance (filed on October 18, 2012),
Chief Deputy Beck states that no copy has ever been found even though
Defendant Warren does not dispute that Ms. Jackson filed it. (Id. ¶ 53.)
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Plaintiffs appear to agree, as they have moved to compel its production. (Pls.’
MTC, Dkt. [112 at 2.) In the absence of any evidence that Sheriff Warren
actually received Ms. Jackson’s grievances, Plaintiffs cannot rely on them to
show he had subjective knowledge of Defendant Sutherland’s misconduct or
that he was a threat.
Finally, Plaintiffs allege that there was a pervasive atmosphere of
obvious sexual misconduct at the CCADC such that Sheriff Warren should
have known that Plaintiffs were at risk of sexual assault. (Pls.’ MSJ Opp’n,
Dkt. [116] ¶ 64.) After reviewing the record, the Court is convinced that many
employees at the CCADC were engaged in misconduct and that it was indeed a
dangerous atmosphere or, at the very least, an unprofessional one.
Nonetheless, for Plaintiffs to show a constitutional violation, they must
demonstrate not just that Sheriff Warren should have known that Plaintiffs
were at risk, but that he actually knew. Goodman, 718 F.3d at 1332 (“To be
deliberately indifferent . . . the 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.”) (internal quotation marks omitted). To do
so, it is not enough that Plaintiffs point to a pervasive atmosphere of
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misconduct. Rather, Plaintiffs must provide some evidence to refute Sheriff
Warren’s contention that he no idea that Defendant Sutherland was a risk to
inmates’ health and safety until after the sexual contact with Plaintiffs
occurred. (See Warren Decl., Dkt. [115-14] ¶¶ 26-32.) They have not,
however, managed to do so.
In fact, Sheriff Warren presents undisputed evidence that as soon as he
did know about the danger Defendant Sutherland posed, he took immediate and
decisive action. Defendant Kendall’s lawyer reported her client’s rape on
January 16, 2013. (Def.’s SMF, Dkt. [115-2] ¶ 52.) The very next day,
command staff initiated an investigation and interviewed Defendant
Sutherland. (Id. ¶¶ 52, 55.) Immediately following this interview, Sheriff
Warren terminated Defendant Sutherland’s employment with CCSO. (Warren
Mem., Dkt. [115-14] at 21-22.) Thus, in the one instance where Sheriff Warren
clearly had actual knowledge of Defendant Sutherland’s misconduct, he acted
immediately to protect the inmates at the CCADC.
Aside from bare allegations, Plaintiffs offer no evidence that Sheriff
Warren knew about the risks Defendant Sutherland posed. The record is full,
however, of evidence indicating that no complaints or grievances about
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Defendant Sutherland made their way to Sheriff Warren until January 2013.
Thus, the undisputed evidence shows that Sheriff Warren did not have
subjective knowledge that Defendant Sutherland was a risk to inmates at the
CCADC until after he assaulted Plaintiffs. As such, Plaintiffs cannot show a
constitutional violation and Sheriff Warren is entitled to qualified immunity as
to Plaintiffs’ § 1983 deliberate indifference claim. Sheriff Warren’s Motion for
Summary Judgment [115] is therefore GRANTED.
Conclusion
In light of the foregoing, Plaintiffs’ Motion to Compel Discovery [109]
is DENIED as moot. Plaintiffs’ Motion for Leave to Amend the Second
Amended Complaint [108] and Amended Motion to Compel Discovery [112]
are DENIED. Sheriff Warren’s Motion for Summary Judgment [115] is
GRANTED. The parties are ORDERED to submit a proposed consolidated
pretrial order within thirty days.
SO ORDERED, this 31st day of March, 2016.
________________________________
RICHARD W. STORY
United States District Judge
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