Jones v. Wallace et al

Filing 46

MEMORANDUM AND ORDER re: 37 MOTION for Summary Judgment filed by Defendant Joseph Enderlee, Defendant Brett Hays, Defendant Benjamin Essex, Defendant Anthony Parker, Defendant Donna Wigfall, Defendant Jessie Mays, Defendant Charles Brown, Defendant Farrah Boyd, Defendant Daron Hyte, Defendant Cheryl Thompson, Defendant Ryan Moss, Defendant Ian Wallace motion is GRANTED. IT IS HEREBY ORDERED that defendant's motion for summary judgment (ECF #37) is GRANTED. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 5/14/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ORLANDO JONES,
Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.

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Case No. 1:13CV105 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion for summary judgment.
The matter has been fully briefed and is ripe for disposition. For the following reasons,
the motion will be granted.
I.

Background
In December 2012, plaintiff Orlando Jones was an inmate at Southeast

Correctional Center (SECC) in Charleston, Missouri and was housed in the
administrative segregation unit in a two-man cell with another inmate, JE. On or about
December 28, 2012, JE assaulted plaintiff. Plaintiff filed this action pursuant to 42
U.S.C. § 1983 alleging that prison officials failed to protect him from a substantial risk of
serious harm in violation of the Eighth Amendment. Defendants Ian Wallace, Cheryl
Thompson, Daron Hyte, Donna Wigfall, Ryan Moss, Anthony Parker, Joseph Enderlee,
Charles Brown, Benjamin Essex, Brett Hays, Jessie May, and Farrah Boyd were
employees at SECC at the time of the assault. Defendants filed a joint motion for
summary judgment. In support of their motion, defendants maintain that there is no

evidence that plaintiff was at a substantial risk of serious harm or that defendants knew
of, but disregarded, a serious risk to plaintiff’s safety. For these reasons, defendants
contend they are entitled to judgment as a matter of law in their favor.
II.

Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may

grant a motion for summary judgment if all of the information before the court
demonstrates that “there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated
Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges
this burden, the nonmoving party must do more than show that there is some doubt as to
the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Instead, the nonmoving party bears the burden of setting forth specific facts
showing that there is sufficient evidence in his favor to allow a jury to return a verdict for
him. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at
324.
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Matsushita, 475 U.S. at 587;
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The Court may not
“weigh the evidence in the summary judgment record, decide credibility questions, or
determine the truth of any factual issue.” Kampouris v. St. Louis Symphony Soc., 210
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F.3d 845, 847 (8th Cir. 2000). The court is required, however, to resolve all conflicts of
evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chemical
Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
III.

Facts
The Court has reviewed the parties’ statements of uncontroverted material facts,

the responses, and the supporting documentation,1 and, where appropriate, will accept
facts as supported by appropriate admissible evidence. The following facts are before the
Court on this motion. Additional facts are set forth in the discussion.
Plaintiff was assaulted by his cellmate, JE, on December 28, 2012.2 As a result of
the injuries he received during the assault, he was transported out of the prison to
Missouri Delta Medical Center for treatment. Plaintiff suffered three broken bones in his
face, lost three teeth, and required ninety-four stitches. Plaintiff and JE had been
cellmates for approximately two months before JE assaulted plaintiff.3

1

The parties submitted excerpts of the deposition testimony of plaintiff, Ian Wallace,
Donna Wigfall, Brett Hays, and Jerome Kizer. Defendant Wallace was the Warden at
SECC. Defendant Wigfall is currently a Functional Unit Manager at SECC. She was a
case manager and may have been plaintiff’s case manager in December 2012. Defendant
B. Hays is a correctional officer at SECC. Kizer is a correctional officer at SECC and
responded to the cell shared by plaintiff and JE following the assault.
2

There is a discrepancy as to the date of the assault but it is not significant for purposes
of this motion.
3
Plaintiff attempts to dispute this fact. Although he acknowledges that Wigfall testified
that her reading of the housing assignments showed that plaintiff and JE were in a cell
together for approximately two months, he contends CO Kizer could only commit to their
sharing a cell for a “good strong week.” However, the page of CO Kizer’s deposition
referenced in support of this contention is not included in the record before the Court.
3

Plaintiff and JE had been cellmates on a prior occasion. A physical altercation
occurred during the first time they shared a cell. Plaintiff described it as a wrestling
match during which he “got the best of [JE].” Plaintiff and JE agreed not to tell anyone
about the altercation. Plaintiff testified that he and JE got along because JE did not “put
his hands” on plaintiff. Up to and including December 2012, plaintiff was not listed as an
enemy on JE’s enemy list and JE was not on plaintiff’s enemy list.
Plaintiff testified that when he was placed in a cell with JE, he asked Jay Hays (“J.
Hays”)4 for protective custody from JE and that J. Hays threatened to spray plaintiff with
mace if he complained. Plaintiff told J. Hays that he didn’t want JE in the cell with him,
that he wanted protective custody away from him, and that “he didn’t want to be
around this man.” Plaintiff told CO Cossey5 that he wanted protective custody from JE
because “we ain’t, you know what I’m saying, clicking right.” Plaintiff testified Cossey
told him his protective custody needs were being met.
Just prior to the assault, JE told plaintiff that someone had offered to pay JE to
hurt plaintiff. JE told plaintiff he would not hurt him because he was too cool for that.
Plaintiff testified that after JE told him about the offer to hurt him, plaintiff went to sleep
but only after JE told plaintiff he was not going to hurt him.
Plaintiff submitted three kites asking for protective custody from JE to SECC
employees Thompson, Cossey, and Wigfall. A kite is an informal note offenders write
and send to different prison employees by way of the correctional officers. Kites can be
4

J. Hays is not a named defendant.

5

Cossey is not a named defendant.
4

anything from trivial requests to requests for protective custody. SECC employees
receive a lot of kites on a daily basis. Plaintiff testified that he received responses to the
kites stating his protective custody needs were being met including a response from Hyte
answering the kite plaintiff sent to Wigfall. Plaintiff gave those responses to the clerk in
the law library to make copies but the papers were forwarded to case manager Buhs, who
destroyed the copies.
Plaintiff testified that although he didn’t have problems with JE, he submitted the
kites because he “had a feeling” and that he didn’t know how JE felt about him.
Additionally, JE was always “talking noise” to him and threatening him. Plaintiff
testified he sent kites because JE told him about the offer to hurt him and that he sent the
kites “way before” December 28. Plaintiff also testified that he submitted an informal
resolution request (“IRR”) requesting protective custody. However, SECC has no IRRs
in its possession from plaintiff requesting protective custody from JE.
Plaintiff spoke with Thompson and Wigfall about the kites. He asked Thompson
“can I get PC? Please, I need it” but Thompson just walked away. Plaintiff asked Wigfall
if she got his kite asking for protective custody from JE and she replied his protective
custody needs were being met. Plaintiff testified that Hyte also told him that his
protective custody needs were being met. When plaintiff was asked specifically what he
wrote in his kites, he testified “that I need PC away from JE.”
IV.

Discussion
Plaintiff alleges the defendants violated the Eighth Amendment’s prohibition

against cruel and unusual punishment by failing to protect him from the assault by his
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cellmate. The Eighth Amendment imposes a duty on prison officials to “take reasonable
measures to guarantee the safety of the inmates [and] . . . to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832-33
(1994) (internal quotation marks and citation 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.
To establish a violation of the Eighth Amendment due to failure to protect, a
plaintiff must make two showings. First, the plaintiff must show “that he is incarcerated
under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834.
“This objective requirement ensures that the deprivation is sufficiently serious to amount
to a deprivation of constitutional dimension.” Jensen v. Clarke, 94 F.3d 1191, 1197 (8th
Cir. 1996). “Second, the subject prison official must have exhibited a sufficiently
culpable state of mind, that is, the prison official must have been deliberately indifferent
to a substantial risk of serious harm to the [plaintiff].” Lenz v. Wade, 490 F.3d 991, 995
(8th Cir. 2007). No liability attaches to a prison official without subjective knowledge –
that is, unless the plaintiff can prove the official both “knew of and disregarded an
‘excessive risk to inmate health or safety’” Holden v. Hirner, 663 F.3d 336, 341 (8th
Cir.2011) (quoting Farmer, 511 U.S. at 834). “[T]he 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 that inference.” Farmer, 511 U.S. at 837. “This subjective state
of mind must be present before a plaintiff can be successful because only the unnecessary
and wanton infliction of pain implicates the Eighth Amendment.” Lenz, 490 F.3d at 995
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(quoting Blades v. Schuetzle, 302 F.3d 801, 803 (8th Cir. 2002) (internal quotation marks
and citations omitted)).
Defendants argue there is no evidence that plaintiff was at a substantial risk of
serious harm or that they knew of, but disregarded, a serious risk to plaintiff’s safety.
According to plaintiff’s own testimony, defendants Wallace, Moss, Parker, Enderlee,
Brown, Essex, B. Hays, May, and Boyd did not know of, or disregard, a serious risk to
plaintiff’s safety. Plaintiff testified that he spoke with defendant Wallace after the assault
inquiring as to why his requests for protective custody as to JE had been ignored.
Additionally, plaintiff testified that defendants Moss, Parker, Enderlee, Brown, Essex, B.
Hays, May, and Boyd had nothing to do with his requests for protective custody with
regard to JE or the denial of those requests.6 Specifically, he admitted that he did not
submit requests for protective custody to those defendants and that they did not deny him
protective custody as to JE. Therefore, defendants Wallace, Moss, Parker, Enderlee,
Brown, Essex, B. Hays, May, and Boyd are entitled to judgment as a matter of law in
their favor.
As to defendants Thompson, Hyte, and Wigfall, plaintiff argues that they were
aware of his requests for protective custody and wrongfully denied his requests. Plaintiff
testified that he flew kites to Thompson and Wigfall,7 which stated “I need PC away from
JE” and that he also asked Thompson “[C]an I get PC? Please, I need it.” Although
6

Plaintiff testified as to complaints he had with regard to defendants Moss, Parker, May,
and Boyd on unrelated matters and that defendants Enderlee, Brown, and Essex made
inappropriate remarks to him after the assault.
7

Plaintiff testified that he also flew a kite to Cossey.
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plaintiff did not personally tell Hyte that he needed protective custody from JE, Hyte
responded to the kite plaintiff sent to Wigfall. Plaintiff received responses to his kites
stating that his protective custody needs were being met. Additionally, plaintiff asked
Wigfall if she had received his kite about protective custody away from JE and she told
him his protective custody needs were being met.
The only testimony from plaintiff that he told anyone JE had threatened him or
that they were not getting along was as to corrections officers J. Hays and Cossey.
Plaintiff testified that he told J. Hays, “No. I don’t want the dude in the cell with me. I
want PC away from the dude. Jay Hays, he threatened me.” He asked Cossey, “can I get
PC from this dude, because we ain’t, you know, what I’m saying, clicking right?”
Officers J. Hays and Cossey, however, are not named defendants. There is no testimony
connecting those requests for protective custody with defendants Thompson, Hyte, or
Wigfall. Further, plaintiff testified that he and JE kept quiet about the first altercation
they had and did not tell any of the guards about the fight.
Plaintiff argues that the facts here are similar to the facts in Young v. Selk, 508
F.3d 868 (8th Cir. 2007). In Young, the court denied summary judgment to prison
officials on a failure to protect claim where Young’s cellmate threatened him, he told the
defendants about the threats and requested to be removed from the cell, his requests were
ignored, and he was later assaulted by his cellmate. Here, however, there is a significant
difference. Although plaintiff testified that he had a feeling that JE was going to do
something to him, JE was always talking noise to him, JE was threatening him, and JE

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told him someone offered to pay JE to hurt him, there is no evidence or testimony that
plaintiff conveyed this information to defendants Thompson, Hyte, or Wigfall.
Instead, the testimony with regard to his requests for protective custody as to
defendants Thompson, Wigfall, and Hyte shows only that he told them he wanted
protective custody without any explanation. As a result, even if plaintiff could establish
that he was incarcerated under conditions that posed a substantial risk of serious harm, he
cannot show, even viewing the facts in a light most favorable to him, that defendants
Thompson, Hyte, and Wigfall acted with deliberate indifference. See Irving v. Crawford,
1:09CV161 SNLJ, 2011 WL4055664, at *5-6 (E.D. Mo. Sept. 13, 2011) (plaintiff’s kites
to defendants that he and his cellmate were incompatible were insufficient to establish
deliberate indifference where the kites did not mention that plaintiff’s cellmate was a
threat to him). “[T]he fact that an inmate sought and was denied protective custody is not
dispositive of the fact that prison officials were therefore deliberately indifferent to his
safety.” Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997).
Plaintiff has not submitted any evidence to show that defendants Thompson, Hyte,
and Wigfall both knew of and disregarded any threat of violence, impeding harm, or
substantial risk to his safety. Further, plaintiff has not submitted any evidence to show
that the defendants were aware of any facts from which the inference could be drawn that
a substantial risk of harm existed. See Farmer, 511 U.S. at 837 (“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 that inference.”). Again, although plaintiff
testified that he had a feeling that JE was going to do something to him, JE was always
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talking noise to him, JE was threatening him, and JE told him someone offered to pay JE
to hurt him, there is no evidence that plaintiff conveyed this information to defendants
Thompson, Hyte, or Wigfall or that they were otherwise aware of those facts.
The facts here differ significantly from other failure to protect cases where
defendants’ motions for summary judgment have been denied based on evidence that the
plaintiff conveyed his fear of his cellmate or threats made by his cellmate to prison
officials. See Young v. Selk, 508 F.3d 868 (8th Cir. 2007) (defendants’ motion for
summary judgment on failure to protect claim denied where plaintiff told prison officials
that he had been threatened by his cellmate, that his cellmate was deranged, that
something was wrong with his cellmate, and that he needed to be moved immediately);
Johnson v. Doyle, 4:07CV1843 AGF, 2011WL 846141 (E.D. Mo. Mar. 8, 2011)
(defendants’ motion for summary judgment denied where plaintiff testified that he
handed kites to defendants explaining his fear of another inmate and requesting that one
of them be moved to a different housing pod); Dykes v. Mitchell, 4:07CV733 CAS, 2009
WL 1543753 (E.D. Mo. June 2, 2009) (defendants’ motion for summary judgment denied
where there was a genuine issue of material fact as to whether plaintiff reported threats of
violence by another inmate and his fear of serious harm to prison officials).
While it is regrettable that plaintiff was assaulted by his cellmate, the defendants
cannot be held liable because they had no prior knowledge of any threat or substantial
risk to plaintiff’s safety. Because plaintiff’s evidence fails to satisfy the subjective prong
of his failure to protect claim, defendants Thompson, Hyte, and Wigfall are entitled to
judgment as a matter of law in their favor.
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Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
(ECF #37) is GRANTED. A separate Judgment will accompany this Memorandum and
Order.
Dated this 14th day of May, 2015.

___________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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