Barber v. Cox et al
Filing
19
MEMORANDUM DECISION AND ORDER it is hereby ordered that Defendants' Motion for Summary Judgment (Dkt. 16 ) is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANTHONY BARBER,
Case No. 1:17-cv-00318-BLW
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
CPL. COX, SGT. NICODEMUS, D.W.
McKAY, LT. D. MARTINEZ, and
WARDEN RANDY BLADES,
Defendants.
INTRODUCTION
Pending before the Court is an unopposed Motion for Summary Judgment by
Defendants Jason Cox, Tyler Nicodemus, Deputy Warden Tim McKay, Lieutenant
Dagoberto Martinez and Warden Randy Blades (“Defendants”). (Dkt. 16.) Having
reviewed the record and briefs, the Court finds that the facts and legal arguments are
adequately presented. Accordingly, in the interest of avoiding delay, and because the
Court finds the decisional process would not be significantly aided by oral argument, the
Court will decide the Motion on the record without oral argument. Loc. Civ. R.
MEMORANDUM DECISION AND ORDER - 1
7.1(d)(2)(ii). For the reasons set forth below, the Court finds good cause to GRANT
Defendants’ Motion.
BACKGROUND
Anthony Barber is an inmate incarcerated by the Idaho Department of Corrections
(“IDOC”). On August 2, 2017, Barber initiated this action by filing a Complaint alleging
various violations of 42 U.S.C. § 1983. Dkt. 3. In his Complaint, Barber alleges his
cellmate, Greg Nelson, forced oral sex on him repeatedly during the months of June and
July of 2017. When he turned to IDOC staff for help, Barber alleges Defendants not only
failed to protect him, but punished him with a Disciplinary Offense Report (“DOR”) for
engaging in sexual activity.
Barber and Nelson first became cellmates in June of 2017. Defendant Nicodemus
was the housing sergeant who assigned Barber and Nelson to the same cell. Before
making a particular housing assignment, Nicodemus reviewed an inmate’s DOR history
and file for any security alerts. Nicodemus assessed Barber and Nelson’s files before
housing them together. Barber’s file contained DORs he had received for engaging in
sexual activity in October of 2012 and February of 2013. Nelson did not have any DORs
for sexual activity in his file. Nicodemus decided to place Barber and Nelson in the same
cell because there was no history of sexual contact or conflict between them, and because
Barber’s DORs were several years old. There were also no new reports that either had
engaged in prohibited sexual activity with other inmates, or any security concerns
suggesting Barber and Nelson should not be housed together
MEMORANDUM DECISION AND ORDER - 2
Barber and Nelson lived together without incident between June 4 and July 14,
2017. On July 18, 2017, Barber told Defendant Tyler Cox that Nelson had forced oral
sex upon him. Due to the seriousness of Barber’s allegations, Cox immediately separated
Barber and Nelson, and reported Barber’s potential Prison Rape Elimination Act
(“PREA”) disclosure to his supervisor, Defendant Lieutenant Dagoberto Martinez. 1
Martinez promptly interviewed Barber in the presence of Cox and a facility clinician.
When Martinez asked him to describe his concerns, Barber stated that he had performed
oral sex on Nelson four days earlier (on July 14, 2017) in exchange for coffee. When
Nelson asked Barber if he wanted to exchange coffee for sex again that night, Barber said
he refused and Nelson threatened to beat him up in retaliation. Barber became scared and
reported his concerns to correctional staff.
After Barber told Martinez his concerns, Martinez asked if the sexual contact that
had occurred four days earlier between Barber and Nelson had been consensual. Barber
replied, “Oh yes. This is how I hustle things.” Dkt. 16-3, ¶ 4. Barber also said that if
Nelson was moved to another tier “it would be a dead issue” and he would feel safe. Id.
Martinez then interviewed Nelson, who denied any sexual contact with anyone for the
1
The PREA, 42 U.S.C. §§ 15602-15609, was enacted to address the problem of rape in
prison by creating and applying national standards to prevent, detect, and respond to prison rape,
and by ensuring compliance of state and federal prisons by conditioning eligibility for federal
grant money on compliance with the standards. Although Barber’s Complaint suggested
Defendants violated his rights by failing to follow the PREA guidelines and procedures, this
Court dismissed such claims in its Initial Review Order because the PREA does not authorize a
private right of action. Dkt. 10.
MEMORANDUM DECISION AND ORDER - 3
last 24 to 48 hours. Martinez concluded Barber and Nelson should be separated during
the PREA investigation triggered by Barber’s report, and Nelson was moved to a
different tier. Nelson and Barber have not been housed together, or in the same tier, since
Barber’s report.
After interviewing both inmates, Martinez instructed Cox to prepare a DOR for
Barber for his admitted consensual sexual contact with Nelson. Upon receiving the DOR
on July 19, 2017, Barber submitted multiple “Offender Concern Forms” stating, inter
alia, he had been raped by Nelson on July 14 and July 18, 2017 and had been served with
a DOR in retaliation for reporting his rape. Dkt. 16-5, Ex. 1.
Barber’s case was thereafter assigned to the investigations unit for a formal PREA
investigation. Officer Matthew Lytle was the IDOC officer assigned to investigate
Barber’s report. As a part of his investigation, Officer Lytle interviewed Barber on
August 3, 2017. The interview was recorded, and a transcript of the recording was filed
with Defendants’ Motion for Summary Judgment. Dkt. 16-5, Ex. 2. During the
interview, Barber admitted his only sexual activity with Nelson had occurred the morning
of July 14, 2018, that this encounter was consensual, that Nelson had been moved from
Barber’s cell and tier since Barber’s report, and that Barber was “happy” and had not
been threatened since Nelson’s move. Id. Based on his interview and Barber’s
admission that his only sexual contact with Nelson had been consensual, Lytle concluded
Barber’s claim that he had been raped by Nelson was unsupported.
MEMORANDUM DECISION AND ORDER - 4
Defendants filed this Motion for Summary Judgment on October 11, 2018. On
October 12, 2018, the Clerk of the Court sent Barber the Court’s standard Notice to pro
se litigants regarding the necessity of responding to Defendants’ motion within 21 days.
Dkt. 17. Barber has never responded to or opposed Defendants’ Motion for Summary
Judgment.
III.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to summary judgment as a matter of
law.” Fed. R. Civ. P. 56(a). This Court’s role at summary judgment is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017)
(citation omitted). In considering a motion for summary judgment, this Court must
“view[] the facts in the non-moving party’s favor.” Id. To defeat a motion for summary
judgment, the respondent need only present evidence upon which “a reasonable juror
drawing all inferences in favor of the respondent could return a verdict in [his or her]
favor.” Id. Accordingly, this Court must enter summary judgment if a party “fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn
affidavit or the pleadings to defeat a motion for summary judgment; rather, the
respondent must set forth the “specific facts,” supported by evidence, with “reasonable
MEMORANDUM DECISION AND ORDER - 5
particularity” that preclude summary judgment. Far Out Prods., Inc v. Oskar, 247 F.3d
986, 997 (9th Cir. 2001).
IV.
ANALYSIS
In this case, Defendants’ Motion for Summary Judgment should be granted on
both procedural grounds and on the merits. With respect to the former, the Court’s
Notice to pro se litigants explained to Barber what a motion for summary judgment is,
and how and when Barber was required to respond to Defendants’ motion. The Notice
also included the following warning:
You are warned that if you do not file your response opposing the motion within
21 days (or such other time period set by the Court), the Court will consider the
facts provided by the moving part as undisputed and may grant the motion based
on the record before it, or it may dismiss your entire case for failure to
prosecute (abandonment of your case). See Local Rule 7.1(e)(2); Fed. R. Civ. P.
41(b).
Dkt. 17, at p. 2 (emphasis in original).
To date, Barber has not filed anything in response to Defendants’ Motion for
Summary Judgment.
Idaho District Local Rule 7.1 outlines:
In motions brought under Federal Rule of Civil Procedure 56, if the non-moving
party fails to timely file any response documents required to be filed, such failure
shall not be deemed a consent to the granting of said motion by the Court.
However, if a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Federal Rule of
Civil Procedure 56(c) or Local Rule 7.1(b)(1) or (c)(2), the Court may consider the
uncontested material facts as undisputed for purposes of consideration of the
motion, and the Court may grant summary judgment if the motion and supporting
materials - including the facts considered undisputed - show that the moving party
is entitled to the granting of the motion.
MEMORANDUM DECISION AND ORDER - 6
Idaho Dist. Loc. R. 7.1(e)(2) (emphasis added).
Accordingly, pursuant to this Court’s Notice to Barber, as well as Local Rule 7.1,
Barber’s failure to timely respond to Defendants’ Motion for Summary Judgment is
deemed acquiescence to the facts alleged in their motion. The Court thus considers
undisputed Defendants’ claim that Barber’s only sexual contact with Nelson was
consensual.
With respect to the merits, this Court allowed Barber to proceed on his First
Amendment Retaliation claim and Eighth Amendment “prison conditions” claim in its
Initial Review Order. Dkt. 10. Barber’s retaliation claim alleges he was issued a DOR
because he submitted concern forms reporting Nelson’s rapes. The required elements of
First Amendment retaliation claim are: “(1) An assertion that a state actor took some
adverse action against an inmate; (2) because of (3) that prisoner’s protected conduct, and
that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5)
the action did not reasonably advance a legitimate correctional goal.” Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Barber cannot satisfy the elements of a retaliation claim. The DOR was issued on
July 19, after Barber admitted, on July 18, to engaging in consensual sex with Nelson on
July 14, 2017. Barber responded to the July 19, 2017 DOR by filing three separate
grievance forms claiming he had been raped by his cellmate and had received a DOR for
sexual activity. “Of fundamental import to prisoners are their First Amendment ‘rights to
file prison grievances’ without fear of retaliation.” Id. (quoting Bruce v. Yist, 351 F.3d
MEMORANDUM DECISION AND ORDER - 7
1283, 1288 (9th Cir. 2003)). However, in this case, the DOR was not issued as a
retaliation because Barber submitted grievance forms, but was instead delivered before
Barber even filed the grievances, in response to Barber’s admitted violation of IDOC’s
rules against consensual sex. Further, as Defendants note, “it cannot be seriously
questioned that disciplining an inmate for engaging in consensual sexual activity while in
prison is rationally related to the legitimate penological goal of discouraging and/or
preventing sexual assaults within the institution.” Dkt. 16-1, p. 13; see also Luke v.
Peterson, 2012 WL 913749 at *5 (D. Idaho 2012); Mintun v. Peterson, 2010 WL
1338148 (D. Idaho 2010); Veney v. Wyche, 293 F.3d 726, 733 (4th Cir. 2002); Fields v.
Smith, 712 F.Supp.2d 830, 869 (E.D. Wis. 2010). The DOR advanced the penological
goal of preventing sexual activity between inmates, and thus did not infringe upon
Barber’s First Amendment rights.
Barber’s Eighth Amendment claim is based on Defendants’ failure to prevent the
harm he purportedly suffered at the hands of Nelson. While prison officials have a duty
to protect prisoners from violence, including sexual violence, at the hands of other
prisoners, a prison official violates the Eighth Amendment for failure to protect only
when such officials actually knew of a substantial risk to inmate health or safety, and
failed to reasonably respond to such risk. Farmer v. Brennan, 511 U.S. 825, 844 (1994).
Barber cannot establish either element.
First, Defendants had no knowledge Barber was at risk of sexual assault by
Nelson. Defendants reviewed Nelson and Barber’s files before housing them together.
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While Barber had two DORs for sexual activity with other inmates, Nelson had never
received a DOR for sexual activity. Nor was there any history of conflict or sexual
activity between Barber and Nelson before they were housed together. In fact, Barber’s
Complaint states he requested Nelson as a cellmate because Nelson had been nice to him.
Dkt. 3, p. 9. Barber and Nelson were also housed together between June 4 and July 14,
2017 without incident. It was not until Barber told them that he had been sexually active
with Nelson that Defendants’ had any knowledge Nelson posed a potential risk to
Barber’s safety. Where, as here, prison officials lack knowledge of a risk, they cannot be
said to have inflicted punishment. Farmer, 511 U.S. at 844.
Second, “prison officials who actually knew of a substantial risk to inmate health
or safety may be found free from liability if they responded reasonably to the risk, even if
the harm ultimately was not averted.” Id. Here, Defendants immediately separated
Barber and Nelson as soon as Barber reported Nelson’s alleged rape. Dkt. 16-4, ¶ 2.
After interviewing Barber and Nelson, Martinez concluded Nelson should be moved to
another tier pending an investigation of Barber’s PREA claim. Dkt. 16-3, ¶ 6. The move
occurred immediately thereafter to ensure the safety of both inmates. Id., ¶ 7. Following
the PREA investigation, an alert was issued advising staff that Barber and Nelson should
not be housed together in the future. Dkt. 16-7, ¶ 4.
Thus, Defendants immediately responded to the threat Nelson purportedly posed
to Barber. Defendants separated the two as soon as the threat was reported, throughout
all stages of the investigation, and permanently after the investigation concluded.
MEMORANDUM DECISION AND ORDER - 9
Defendants not only responded reasonably to the risk at issue here, but also averted any
risk of future harm by moving Nelson to a separate tier where he and Barber could no
longer interact. Because they reasonably responded to the risk Nelson allegedly imposed,
Defendants “cannot be found liable under the Cruel and Unusual Punishments Clause.”
Farmer, 511 U.S. at 845. Accordingly, Barber’s Eighth Amendment claim fails as a
matter of law.
ORDER
Now, therefore, it is hereby ordered that Defendants’ Motion for Summary
Judgment (Dkt. 16) is GRANTED.
DATED: February 5, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 10
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