WHITTED v. KONKLE et al

Filing 23

ORDER GRANTING DEFENDANT DAVIS'S 10 MOTION TO DISMISS - For the foregoing reasons, both the Eighth Amendment and negligence claims in the Complaint are dismissed. See Order for details. Signed by Judge Sarah Evans Barker on 7/30/2018. (MAT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

MOLLY WHITTED,

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Plaintiff,
vs.
CODY KONKLE, et al.,
Defendants.

No. 4:17-cv-00241-SEB-DML

ORDER GRANTING DEFENDANT DAVIS’S MOTION TO DISMISS
Plaintiff Molly Whitted (“Ms. Whitted”) alleges that her rights were violated when
Defendant Cody Konkle (“Mr. Konkle”), a Correctional Officer at the Indiana
Department of Correction’s (“IDOC”) Madison Correctional Facility, pressured her into
having sexual intercourse. Now before the Court for resolution is a Motion to Dismiss
filed by Defendant Jan Davis, Superintendent of the Madison Correctional Facility
(“Superintendent Davis”), whom Ms. Whitted has sued under 42 U.S.C. § 1983 and statelaw theories [Dkt. No. 10]. For the reasons detailed herein, the motion is GRANTED.
Factual and Procedural Background
This litigation was initiated by Ms. Whitted, an Indiana prisoner who, at the time
of the events related to this case, was housed at IDOC’s Madison Correctional Facility.
Ms. Whitted has alleged that on January 13, 2016 Mr. Konkle coerced her into
accompanying him to the correctional facility’s locked basement, where he pressured her
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to have sexual intercourse with him, [Dkt. No. 1 (“Compl.”)] at 2. She further alleges that
over the course of the five previous months, Mr. Konkle “engaged in a regular pattern of
manipulative comments, overly familiar, flirtatious conduct, and intimate personal
association with Whitted.” Id. She does not disclose whether she informed
Superintendent Davis or any other IDOC employee of Mr. Konkle’s conduct.
According to Ms. Whitted, roughly ten days after this sexual encounter, on
January 23, 2016, she developed a vaginal irritation and, accordingly, asked Mr.
Konkle—in advance of seeking treatment from the medical office—whether he had a
sexually transmitted disease. Id. Mr. Konkle became angry and accused Ms. Whitted of
intending to disclose the incident in order to get him fired. Id.
Ms. Whitted complains that following her conversation with Mr. Konkle she was
transferred to the Indiana Women’s Prison and segregated from other inmates on January
24, 2017. Id. at 3. There, Ms. Whitted received medical attention and treatment for the
physical, mental, and emotional injuries she alleges that she suffered. Id.
Thereafter, the IDOC investigated the incident and Mr. Konkle’s employment was
terminated. Id. He was also arrested for, charged with, and pled guilty to sexual
misconduct, in violation of Indiana law. Id.
On June 16, 2016, Ms. Whitted filed a notice of tort claim naming the IDOC, the
Madison Correctional Facility, and the Office of the Indiana Attorney General. She filed
her Complaint in this court on December 29, 2017.

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In her Complaint, Ms. Whitted asserts “on information and belief” that
Superintendent Davis “knew of, but reacted unreasonably to, an objectively substantial
risk of serious harm male correctional officers posed to female inmates.” Id. at 5. Further,
Ms. Whitted claims “on information and belief” that Superintendent Davis “knew or
should have known Konkle posed an excessive risk to [her] health or safety and Davis
failed to respond reasonably to that risk.” Id. Ms. Whitted has asserted that
Superintendent Davis breached duties owed to her by failing to:
implement adequate pre-employment screening for correctional officer
candidates; train male staff on issues relating to supervision of female
inmates; provide or review training materials prohibiting sexual
misconduct; minimize access to secluded areas and one-on-one contact
between male staff and female inmates; and make a good faith effort to
limit the assignment of correctional officers in female dormitories to
female staff.
Id. at 5-6. Ms. Whitted further asserts that Superintendent Davis is personally liable for
the tortious conduct of Mr. Konkle under the doctrines of agency, vicarious liability,
employer-employee relations, master and servant, respondeat superior, joint venture,
contract, and as a result of her non-delegable duty to ensure that correctional officers at
the Madison Correctional Facility comply with the Constitution and laws of the United
States (namely the Eighth Amendment) and the State of Indiana. Id. at 6. Finally, Ms.
Whitted claims that Superintendent Davis’s conduct was “of such a nature that punitive
damages should be imposed against her individually in an amount commensurate with the
willful and malicious or recklessly indifferent acts alleged herein.” Id.
On February 26, 2018, Superintendent Davis filed a motion seeking dismissal of
Ms. Whitted’s claims against her. Dkt. Nos. 10, 11 (“Def.’s Memorandum of Law”). Ms.
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Whitted responded on March 14, 2018, limiting the scope of her claims against
Superintendent Davis to § 1983 and state-law negligence claims. Dkt. No. 12 (“Pl.’s
Resp.”), the dismissal of which is sought in the pending action. Dkt. No. 14 (“Def.’s
Reply”). 1 The motion is ripe for ruling.
Motion to Dismiss Standard
The motion to dismiss before us is based on Federal Rule of Civil Procedure
12(b)(6). Accordingly, the Court must accept as true all well-pled factual allegations in
the complaint and draw all ensuing inferences in favor of the non-movant. Lake v. Neal,
585 F.3d 1059, 1060 (7th Cir. 2009). The complaint must “give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests,” and its “[f]actual
allegations must . . . raise a right to relief above the speculative level.” Pisciotta v. Old
Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal citations omitted). The
complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed. R. Civ. P. 8(a)(2).
Stated otherwise, a facially plausible complaint suffices to permit “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).

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Davis seeks leave to file her untimely reply to Ms. Whitted’s response, which request
Whitted does not oppose. Dkt. No. 15. We hereby grant the motion.
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Discussion
Following the paring of her claims, Ms. Whitted is pursuing two claims against
Superintendent Davis: a § 1983 claim against Davis in her individual capacity and a
state-law negligence claim. The issues underlying the motion to dismiss are discussed
below.
Eighth Amendment Claim
A cause of action brought under 42 U.S.C. § 1983 vindicates the constitutional
rights of citizens against “[e]very person who, under color of statute, ordinance,
regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and
laws.” The constitutional violation at issue here arises under the Eighth Amendment.
The Eighth Amendment, made applicable to the States through the Due Process
clause of the Fourteenth Amendment, imposes a duty on prison officials to “take
reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S.
57, 526–27 (1984); see Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison official’s
conduct may be found to violate the Eighth Amendment when two elements are satisfied:
First, the prisoner must demonstrate that the alleged deprivation is “sufficiently serious”
when examined from an objective perspective; and second, she must show that the prison
official had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; Zentmyer v.
Kendall County, 220 F.3d 805, 810 (7th Cir. 2000).

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To satisfy the “sufficiently serious” requirement, Ms. Whitted must be able to
show that she was incarcerated under conditions that posed a substantial risk of serious
harm. See Farmer, 511 U.S. at 834.
In prison conditions cases, the requisite culpable state of mind element involves a
“deliberate indifference” to an inmate’s health or safety.” Id. This is a subjective inquiry;
the prisoner must be able to show that the prison official had subjective knowledge of the
risk of harm to her individually and ignored this risk. See Farmer, 511 U.S. at 834; Zaya
v. Sood, 836 F3d 800, 804 (7th Cir. 2016). Such knowledge can be shown by direct or
circumstantial evidence, and “a fact-finder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Id. at 842; see Hall v.
Bennett, 379 F.3d 462 (7th Cir. 2004) (“A risk can be so obvious that a jury may
reasonably infer actual knowledge on the part of the defendants sufficient to satisfy the
subjective component of the deliberate indifference standard.”). A risk is obvious where a
prisoner establishes that it was “long-standing, pervasive, well-documented, or that it has
been expressly noted by prison officials in the past.” See Farmer, 511 U.S. at 842
(internal citation omitted).
A defendant can be liable only for the actions or omissions in which that person
participated. Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). “Because
vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 678.

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Ms. Whitted has framed her Eighth Amendment claim as follows: “On
information and belief, Davis knew or should have known Konkle posed an excessive
risk to Whitted’s health or safety and Davis failed to respond reasonably to that risk.”
Compl. at 5. We begin by noting that jurisdictional allegations must be made on personal
knowledge, not on information and belief, in order to invoke the subject matter
jurisdiction of a federal court (see America’s Best Inns, Inc. v. Best Inns of Abilene, L.P.,
980 F.2d 1072, 1074 (7th Cir. 1992)), which makes this allegation flawed.
More significant is the fact that, even accepting the well-pleaded factual
allegations as true, no facts consistent with those allegations would result in liability
against Superintendent Davis in her individual capacity. There is no averment that
Superintendent Davis was aware that Ms. Whitted faced the substantial risk of sexual
assault. The Complaint does not assert that Ms. Whitted ever directly communicated to
Superintendent Davis or any other staff member at the Madison Correctional Facility
about Mr. Konkle’s inappropriate actions toward her or even that he had sexually
assaulted her. Ms. Whitted does not claim that she filed a prison grievance against Mr.
Konkle during the five-month period during which he allegedly inappropriately engaged
in flirtatious conduct or engaged in intimate behavior toward her. The proper inquiry is
not whether Superintendent Davis should have known about risks to Ms. Whitted’s safety
(Pl.’s Resp. at 3), but rather, whether she did in fact know of such risks. See Farmer, 511
U.S. at 842–43. While the risk of sexual assault in prison can exist and represents a
serious concern, general knowledge of such a potential danger is not tantamount to actual
knowledge of the specific risk of serious harm or the offensive conduct itself. See Butera
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v. Cottey, 285 F.3d 601, 606 (7th Cir. 2002) (finding that the defendant must have actual
knowledge of the specific risk of serious harm).
Contrary to Ms. Whitted’s arguments, the supervisory nature of Davis’s position
did not expose her to liability for the offensive conduct of Konkle (or any other
employee). Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996) (“a prisoner may
not attribute any of his constitutional claims to higher officials by the doctrine of
respondeat superior; the official must actually have participated in the constitutional
wrongdoing.”) (internal quotations omitted). Accordingly, Ms. Whitted’s § 1983 claim
against Superintendent Davis must be dismissed.
Negligence Claim
Ms. Whitted also seeks monetary damages against Superintendent Davis “in her
official capacity” on a state-law negligence claim. Compl. at 1; Pl.’s Resp. at 3-4.
Superintendent Davis argues that the negligence claim is barred by the Eleventh
Amendment and, therefore, subject to dismissal. Def.’s Reply at 1.
When an action is brought against a state official in his or her official capacity,
such suits are deemed to be “against the entity of which an officer is an agent.” Kroll, 934
F.2d at 907 (internal quotations omitted). Under the Eleventh Amendment’s sovereignimmunity doctrine, a plaintiff may not bring suit in federal court against a state or its
agencies unless the state has consented to suit in federal court or Congress has abrogated
the state’s immunity. See Pennhurst v. Halderman, 465 U.S. 89, 100 (1984). Moreover,
suits for monetary damages against employees of state agencies, acting in their official
capacities, are treated as suits against the state and likewise are barred by the Eleventh
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Amendment. See Garcia v. City of Chi., 24 F.3d 966, 969 (7th Cir. 1994). The State of
Indiana has not consented to this type of suit and Congress has not abrogated Indiana’s
immunity in this regard. Because Superintendent Davis has been sued in her official
capacity for the state law violation, the Court lacks subject matter jurisdiction over this
negligence claim.
Conclusion
For the foregoing reasons, both the Eighth Amendment and negligence claims in
the Complaint are dismissed.
IT IS SO ORDERED.

7/30/2018
Date: _________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Clinton Blanck
Rifkin, Blanck, Rubenstein, P.C.
[e-mail]
David Dickmeyer
Office of the Indiana Attorney General
[e-mail]
Robert Rifkin
Rifkin, Blanck, Rubenstein, P.C.
[e-mail]

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