Tucker v. Karol

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendant's motion for summary judgment (ECF #22) is GRANTED. A separate judgment shall accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 12/1/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
NORMAN TUCKER,
Plaintiff,
v.
PATRICIA KAROL,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 1:15CV17 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion for summary judgment.
Plaintiff has not filed a response and the time for doing so has expired. The motion is
ripe for disposition. For the following reasons, the Court will grant the motion.
I.

Background
Plaintiff Norman Tucker, a civil detainee formerly housed at the Ste. Genevieve

County Detention Center, filed this 42 U.S.C. § 1983 claim against defendant Patricia
Karol, Assistant Jail Administrator of the Detention Center, alleging claims of failure to
protect in violation of the Fourteenth Amendment. In his complaint, plaintiff alleges that
a fellow civil detainee, Larry Johnson, raped him, attempted to rape him during a second
encounter, assaulted him by punching and choking him during a third encounter, and that
he suffered migraine quality headaches, nightmares of sexual assaults, and night sweats
because he was housed in the same cell block as Johnson. Plaintiff alleges that defendant
was deliberately indifferent to his right to be reasonably free from harm by placing
plaintiff in the same cell block with the civil detainee that raped and assaulted him after

she had knowledge of the rape and attempted rape and knowing of the detainee’s history
of “raping youngish white inmates.” Plaintiff further alleges that defendant had the
power and authority to prevent the rape, attempted rape, and assault. Plaintiff seeks
actual and punitive damages as well as injunctive relief requesting transfer to another
facility.
II.

Summary Judgment Standard
Summary judgment is appropriate when no genuine issue of material fact exists in

the case and the movant is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The initial 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. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of
setting forth affirmative evidence and specific facts by affidavit and other evidence
showing that there is a genuine dispute of a material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324.
Plaintiff’s pro se status does not excuse him from responding to defendant’s
motion with specific factual support for his claims to avoid summary judgment, Beck v.
Skon, 253 F.3d 330, 333 (8th Cir. 2001), or from complying with local rules, see
Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983). The movant’s statement of facts
are deemed admitted if not specifically controverted by the opposing party. E.D. Mo.
L.R. 4.01 (E). However, “[t]he Eighth Circuit has determined that when a plaintiff fails
2

to respond adequately to a motion for summary judgment, a district court should not treat
such a non-response as sufficient to dispose of the motion.” Lowry v. Powerscreen USB,
Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo. 1999) (citing Canada v. Union Electric Co.,
135 F.3d 1211, 1213 (8th Cir. 1997). “Courts should proceed to examine those portions
of the record properly before them and decide for themselves whether the motion is well
taken.” Id. “In so ruling, even on an unopposed motion for summary judgment, the court
should review the facts in a light most favorable to the party who would be opposing the
motion.” Id.
III.

Facts
Plaintiff failed to specifically controvert defendant’s statement of facts and,

therefore, those facts are deemed admitted for this motion. O’Connell v. Accurate
Plumbing, LLC, 4:04CV1368 FRB, 2005 WL 2176926, at *2 (E.D. Mo. Sept. 8, 2005)
(citing Northwest Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 724-25 (8th
Cir. 2003); Harris v. Interstate Brands Corp., 348 F.3d 761, 762-63 (8th Cir. 2003)).
The undisputed facts, as supported by the record, are set forth below.
From December 8, 2010 through September 10, 2015, defendant Sgt. Patricia
Karol was employed at the Ste. Genevieve County Sheriff’s Office and Detention Center
(“Detention Center”).1 On March 1, 2012, defendant became the Assistant Jail
Administrator for the Detention Center. Plaintiff Norman Tucker was a civil detainee
housed at the Detention Center from February 12, 2014 until March 21, 2015 awaiting

1

Defendant Karol’s Affidavit is dated September 10, 2015.
3

trial to determine if permanent commitment to the Missouri Department of Mental Health
as a Sexually Violent Predator was warranted.
Upon booking at the Detention Center, each inmate is instructed as to how to
access the Ste. Genevieve County Sheriff’s Office Detention Center Operational
Procedures & Policy (“Inmate Handbook”) through a computer kiosk located on each cell
block. On February 12, 2014, plaintiff arrived at the Detention Center and was assigned
to cell block F. Plaintiff was instructed as to how to access the Inmate Handbook through
the kiosk.
Larry Johnson was a fellow civil detainee being held in cell block F pending
adjudication as a Sexually Violent Predator at the time plaintiff arrived at the Detention
Center. Johnson resided at the Detention Center until September 9, 2014. Defendant did
not have any information regarding Johnson’s criminal history, psychiatric diagnosis, or
sexual orientation. Defendant does not receive any information regarding any civil
detainees relative to their past criminal history, psychological profiles, or sexual
orientation, including plaintiff’s. Defendant had no actual knowledge of whether
Johnson had any history of violence or sexual attraction to men. Defendant had no
reason to believe Johnson would be violent at the time of plaintiff’s detention or that he
would be attracted sexually to plaintiff thereby placing plaintiff at a greater risk than the
detainee population at large.
On April 18, 2014, plaintiff reported to defendant that he was “afraid” and
requested protective custody. Plaintiff did not state why or of what he was afraid.
Defendant removed plaintiff from cell block F and placed him in protective custody by
4

placing him in a holding cell. As of April 18, 2014, defendant had no knowledge of any
actual or alleged attacks or threats by Johnson as to plaintiff. At that time, the policy of
the Detention Center was that whenever a civil detainee requested protective custody the
request was granted immediately with no stated reason necessary.
There are two procedures for protective custody, sometimes referred to as “lock
down,” in the Detention Center. The first consists of removing a detainee from the cell
block and placing the detainee in a holding cell. The second consists of leaving the
detainee in the cell block, but placing the detainee in a cell where the door remains
locked preventing unauthorized ingress or egress into the common area or other cells
within a cell block. Each cell contains an intercom connected to the Detention Center
Control Room. Cell doors are locked and unlocked electronically from the Control
Room. Individuals may use the intercom to contact the Detention Center Control Room
and Detention Center employees can lock and unlock cell doors for ingress or egress.
On April 21, 2014, plaintiff informed defendant in writing by means of an Inmate
Request that his safety was no longer an issue, he did not need protective custody, and
would like to be “off lockdown” and returned to cell block F. At that time, Johnson was
still detained in cell block F. Plaintiff was removed from protective custody at his
request.
On June 13, 2014, plaintiff stated that he was afraid for his life and requested
protective custody. Plaintiff did not state why he was afraid. Plaintiff was placed in
protective custody the same day. On June 14, 2014, plaintiff requested, in writing
pursuant to an Inmate Request form, to be removed from protective custody, as he was
5

“… not in fear of [his] life anymore.” Plaintiff did not explain what, if any, change in
circumstance had occurred to alleviate his fear. On June 14, 2014, plaintiff was removed
from protective custody at his request.
Plaintiff did not report any other concerns regarding his safety or any incidents
between plaintiff and Johnson until August 1, 2014. On August 1, 2014, plaintiff alleged
that Johnson entered plaintiff’s cell, they began arguing, and Johnson shoved plaintiff.
Plaintiff immediately called Detention Center staff and reported the incident. Staff
ordered Johnson to leave plaintiff’s cell and he complied. Johnson was placed in
disciplinary solitary confinement from August 1, 2014 to August 6, 2014.
On or about August 6, 2014, detainee Johnson was returned to cell block F, though
a different cell than plaintiff, as defendant believed that Johnson presented no significant
threat of serious physical harm to plaintiff and there was no other location within the
Detention Center to house Johnson. The Detention Center consists of eight cell blocks.
One block is reserved for civil detainees. It is the policy of the Detention Center to house
civil detainees separately from the general population of prisoners due to different
standards of confinement enjoyed by civil detainees and to maintain order within the
Detention Center. Defendant did not receive any reports of any further incidents between
plaintiff and Johnson between August 6, 2014 and September 9, 2014. On or about
September 9, 2014, detainee Johnson was removed from cell block F and subsequently
transferred from the Detention Center to another facility.
On October 6, 2014, plaintiff again alleged that he was fearful for his safety and
wanted to be placed in protective custody. On the same day, plaintiff admitted that he
6

lied about being fearful and asked to be removed from protective custody. Detention
Center staff believed plaintiff was using protective custody in an attempt to manipulate
staff.
IV.

Discussion
Defendant contends that plaintiff’s claim against her in her official capacity for

injunctive relief is moot as he is no longer a resident of the Detention Center. This Court
agrees that plaintiff’s transfer to another facility rendered his claim for injunctive relief
moot and will grant summary judgment in favor of defendant on that claim. See Smith v.
Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (prisoner’s claim for injunctive relief is moot
when he has been transferred to another facility and is no longer subject to alleged
unlawful conditions).
Further, defendant claims that she is entitled to judgment as a matter of law on
plaintiff’s claim against her in her official capacity because defendant does not allege,
and there is no evidence, that the complained of conduct is the result of a policy or
custom of the Detention Center. To state a claim against defendant in her official
capacity, plaintiff must allege that a policy or custom of the Detention Center is
responsible for the alleged constitutional violation. Monell v. Dep't of Social Services,
436 U.S. 658, 690–91 (1978). The complaint does not allege, and no evidence has been
presented, that a policy or custom of the Detention Center was responsible for the alleged
violations of plaintiff’s constitutional rights. As a result, the Court will grant summary
judgment in favor of defendant on the claim against her in her official capacity.

7

As to plaintiff’s claim against defendant in her personal capacity, defendant argues
she is entitled to judgment as a matter of law because she was not aware of a serious risk
of harm to plaintiff prior to, or after, the August 1, 2014 incident. The Eighth
Amendment requires prison officials “to protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation
omitted). Although the Eighth Amendment applies directly only to convicted prisoners,
the Fourteenth Amendment provides civilly committed individuals and other detainees
“at least the same level of constitutional protection as the Eighth Amendment.” Nelson v.
Shuffman, 603 F.3d 439, 446 n. 3 (8th Cir.2010) (considering failure-to-protect claims
brought by a detainee living in a sex offender treatment center under the standards
applicable to prisoners’ failure-to-protect claims); see also Youngberg v. Romeo, 457 U.S.
307, 315–16 (1982). Not every prisoner-inflicted injury amounts to a constitutional
violation. Farmer, 511 U.S. at 834. To establish a failure-to-protect claim under the
Eighth or Fourteenth Amendments, a prisoner or detainee must demonstrate that the
defendant prison official was “deliberately indifferent to a ‘substantial risk of serious
harm.’” Young v. Selk, 508 F.3d 868, 872 (8th Cir. 2007) (quoting Farmer, 511 U.S. at
828).
“To prove deliberate indifference, an inmate must make a two-part showing: The
first requirement tests whether, viewed objectively, the deprivation of rights was
sufficiently serious. The second requirement is subjective and requires that the inmate
prove that the prison officials had a ‘sufficiently culpable state of mind.” Nelson v.
Shuffman, 603 F.3d 439, 446 (8th Cir. 2010) (internal quotation marks and citation
8

omitted). “The deprivation is objectively, sufficiently serious, [under the first
requirement when] the official’s failure to protect resulted in the inmate being
‘incarcerated under conditions posing a substantial risk of serious harm.” Id. (internal
quotation marks and citation omitted). “An official is deliberately indifferent [under the
second requirement] if he or she actually knows of the substantial risk and fails to
respond reasonably to it.” Id. (internal quotation marks and citation omitted). Merely
negligent conduct is insufficient. Farmer, 511 U.S. at 835.
“When considering the first requirement, the assailant’s conduct can provide the
court the most probative evidence of the degree and type of risk that [the inmate] faced.”
Id. (internal quotation marks and citation omitted). When considering the second
requirement, plaintiff must show that defendant “exhibited a sufficiently culpable state of
mind, that is, [she] must have been deliberately indifferent to the substantial risk of
serious harm to [plaintiff]. Nelson, 603 F.3d at 447 (citation omitted). “An official is
deliberately indifferent if he or she actually knows of the substantial risk and fails to
respond reasonably to it.” Id. (citation omitted). “The question of whether the official
knew of the substantial risk is a factual one subject to demonstration in the usual ways,
including inference from circumstantial evidence.” Id. (internal quotation marks and
citation omitted). Plaintiff need not show “that a prison official acted or failed to act
believing that harm actually would befall an inmate; it is enough that the official acted or
failed to act despite his knowledge of a substantial risk of serious harm.” Id. (citation
omitted).

9

For the first time following plaintiff’s detention at the Detention Center, on April
18, 2014, plaintiff reported to defendant that he was “afraid,” requested protective
custody, and was placed in protective custody the same day. According to plaintiff’s
complaint, this was after Johnson allegedly raped him and attempted to rape him during a
second encounter. Based on the undisputed facts, plaintiff did not notify defendant of the
rape or attempted rape by Johnson. Three days later, plaintiff informed defendant in
writing that he no longer needed protective custody and that he wanted to be off
protective custody lock down and placed back into cell block F. Plaintiff stated “[s]afety
is not an issue anymore.”
The first report defendant received of an altercation between plaintiff and Johnson
was on August 1, 2014. On that date, plaintiff reported that Johnson entered his cell, they
began arguing, and Johnson shoved him. Detention Center staff ordered Johnson to leave
plaintiff’s cell and he complied. Johnson was placed in disciplinary solitary confinement
for five days. Prior to the August 1, 2014 incident, plaintiff had not reported any
incidents between himself and Johnson, any threats by Johnson, or that he feared for his
safety with regard to Johnson. Based on the undisputed facts, there is no evidence that
defendant was deliberately indifferent to a substantial risk of serious harm to plaintiff
prior to the August 1, 2014 incident.
After the August 1, 2014 incident, plaintiff claims that he suffered migraine
quality headaches, nightmares of sexual assaults, and night sweats because he was in the
same cell block as Johnson. There is no evidence that defendant was deliberately
indifferent to a substantial risk of serious harm to plaintiff after the August 1, 2014
10

incident. That incident was reported as an argument that involved Johnson shoving
plaintiff and nothing more. Further, “[b]ecause a § 1983 action is a type of tort claim,
general principles of tort law require that a plaintiff suffer some actual injury before he
can receive compensation.” Schofield v. Hopkins, 2:12CV28 NAB, 2015 WL 5732051,
at *4 (E.D. Mo. Sept. 30, 2015) (quoting Irving v. Dormire, 519 F.3d 441, 448 (8th Cir.
2008)). There is no medical evidence supporting plaintiff’s claim that he suffered
migraine quality headaches, nightmares of sexual assaults, and night sweats or as to the
cause of these alleged damages.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
(ECF #22) is GRANTED. A separate judgment shall accompany this Memorandum and
Order.
Dated this 1st day of December, 2015.

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

11