Bloomer v. Missouri Department of Corrections et al

Filing 92

MEMORANDUM AND ORDER re: 79 MOTION for Summary Judgment filed by Defendant Kevin McKay, Defendant Jesse May, Defendant Charles Wilson, Defendant Ian Wallace. IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment [ECF No. 79] is GRANTED. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 7/21/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
CALVIN BLOOMER,
Plaintiff,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al. ,
Defendants.

)
)
)
)
)
)
)
)
)
)

No . 1:15CV174RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No.
79). The motion is fully briefed and ready for disposition.

I. Background
Plaintiff Calvin Bloomer ("Plaintiff') was incarcerated at the Southeast Correctional
Center (" SECC") from January 2102 through September 2015 . (Defs.' Statement of
Uncontroverted Material Facts ["DSUMF"] if 1, ECF No . 81) Plaintiff was placed in the
protective custody ("PC") unit upon arrival. (First Am. Compl. ["FAC"] if 19, ECF No. 18) In
October of 2013 , Defendant Ian Wallace ("Wallace") was the warden at SECC; Defendant Kevin
McKay ("McKay") was a lieutenant at SECC; Defendant Jesse May ("May") was a sergeant at
SECC; and Defendant Charles Wilson ("Wilson") was a correctional officer at SECC. (DSUMF

irir 3-6)
On or about October 3, 20 13, Plaintiff took some pills in order to harm himself. (FAC il
20; DSUMF if 10) He was placed on suicide watch and received a conduct violation. (F AC il
20) According to Plaintiff, he was released from suicide watch on October 8, 2013 , and
Defendant McKay told Plaintiff that he was no longer under PC and would be placed in

administrative segregation. (FAC iii! 21-24; DSUMF iii! 11-12) Defendant Wilson handcuffed
Plaintiff to a restraint bench, after which Defendant May approached Plaintiff and informed him
that there were only two open cells, and Plaintiff would be placed in a cell with Shaun King
("King"). (F AC iii! 23 26; DSUMF iii! 12- 13) At that time, Plaintiff was 5 feet 7 inches tall and
weighed around 167 pounds. King measured 6 feet 8 inches and weighed 268 pounds (Pl. ' s
Additional Statement of Material Facts ["PSMF"]

iii! 145-46, ECF No. 82)

Plaintiff told May

that he believed he was still under PC status; however, Plaintiff did not explicitly ask for
protective custody or otherwise have any knowledge of any prior assaults by King. (DSUMF iii!
16, 43 , 101 ; Pl. ' s Response to DSUMF iii! 16, 43 , 101) If Plaintiff would have told the officers
that he was afraid of King or verbally requested PC, Plaintiff would not have been placed in a
cell with King. (DSUMF ifif 76, 87, 103)
Plaintiff further alleges that Defendants McKay and May instructed Plaintiff to be placed
in a cell with King around 5:00 p.m. (DSUMF if 15) After the 10:00 p.m. count and after lights
out, King gave Plaintiff an option to either fight or have sex. (FAC iii! 37-38; DSUMF iii! 17-18)
Plaintiff alleges that King held an object wrapped in toilet paper which King indicated was a
knife, and King forced Plaintiff to perform sexual acts with King. (FAC

iii! 39-41; DSUMF iii!

19-20) Plaintiff testified that he did not yell for help because he was afraid of King. (DSUMF if
21 ; Pl.'s Response to DSUMF if 21)
1

Once the sexual assault ended, Plaintiff sent three "kites" by placing the word "urgent"
on a slip of paper and sliding it under the door for the shift commander to read. (F AC

if 42)

Correctional Officer Dysinger read the kite and removed Plaintiff from the cell. (DSUMF if 22)
Plaintiff was then taken to the hospital for a rape examination. (FAC if 43) Plaintiff was placed

"Kites" are letters to staff describing the alleged incident and indicating urgency. (DSUMF if
21)
1

2

in a different housing unit and was never again placed in a cell with King. (DSUMF ifif 23 , 25)

An investigation of the alleged rape was conducted. (DSUMF if 26; PSMF if 137)
On March 11 , 2015 , Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 . He filed a
First Amended Complaint on April 27, 2015 under§ 1983, alleging that Defendants violated his
rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution. (F AC, ECF No. 18) Specifically, Plaintiff contends in Count I that the Defendants
had a duty to protect Plaintiff from a known, credible threat of violence and that they disregarded
the substantial risk of sexual assault by King. (F AC iii! 51 , 55-58) Plaintiff claims the
Defendants were deliberately indifferent to Plaintiffs need for safety and, as a proximate result
of Defendants' acts and omissions, Plaintiff has suffered damages and injuries. (FAC

iii! 58-60)

In Count II, erroneously captioned as Count III, Plaintiff contends that Defendant Wallace had a
duty to ensure the safety of inmates and failed to properly train SECC employees in reckless
disregard or deliberate indifference to Plaintiffs constitutional rights. (FAC iii! 67-75)
On November 14, 2016, Defendants filed a Motion for Summary Judgment, asserting that
there are no genuine issues of material fact, and Defendants are entitled to judgment as a matter
of law. Plaintiff opposes the motion, arguing that the Court should deny Defendants ' Motion for
Summary Judgment because genuine issues of material fact exist.

II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for
summary judgment only if all of the information before the court show "there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must view
the evidence and all reasonable inferences in the light most favorable to the non-moving party.

3

Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 775 (8th Cir. 1995).
The moving party has the initial burden to establish the non-existence of any genuine
issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v.

Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is
discharged, if the record does in fact bear out that no genuine dispute exists, the burden then
shifts to the non-moving party, who must set forth affirmative evidence and specific facts
showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc. , 477 U.S .
242, 249 (1986).
When the burden shifts, the non-moving party may not rest on the allegations in its
pleadings, but by affidavit and other evidence must set forth specific facts showing that a
genuine issue of material fact exists. Fed. R. Civ .P. 56(e). The non-moving party "must do
more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S . 574, 586 (1986). In fact, the nonmoving party must present sufficient evidence favoring the non-moving party which would
enable a jury to return a verdict for that party. Anderson, 477 U.S . at 249; Celotex, 477 U.S. at
324. Self-serving, conclusory statements, standing alone, are insufficient to defeat a wellsupported motion for summary judgment. 0 'Bryan v. KTIV Television, 64 F .3d 1188, 1191 (8th
Cir. 1995).

III. Discussion
Defendants argue that Plaintiff has presented no evidence showing that Defendants were
deliberately indifferent to Plaintiffs constitutional rights, and they are entitled to qualified
immunity. Defendants further assert that the evidence demonstrates that Defendants responded
in good faith to any potential threat King posed toward Plaintiff. Plaintiff contends that

4

Defendants knew or should have known that Plaintiff was in danger of being sexually assaulted
by King and that they disregarded that risk. Thus, Plaintiff claims that Defendants were
deliberately indifferent to Plaintiffs safety and are not entitled to qualified immunity.
"Qualified immunity protects governmental officials from liability for civil damages if
they have not violated 'clearly established statutory or constitutional rights of which a reasonable
person would have known. "' Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This immunity permits "'officers to make

reasonable errors,' Habiger v. City of Fargo et al. , 80 F.3d 289, 295 (8th Cir. 1996), and
provides 'ample room for mistaken judgments.' Malley v. Briggs, 475 U.S. 335, 343, 106 S. Ct.
1092, 89 L. Ed. 2d 271 (1986)." Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). In
addition, "[t]he defense protects public officials unless they are 'plainly incompetent' or
'knowingly violate the law." ' Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
"On summary judgment, a defendant official is entitled to qualified immunity unless ' (1)
the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a
constitutional or statutory right; and (2) the right was clearly established at the time of the
deprivation. "' Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014) (quoting Howard v.
Kansas City Police Dep 't, 570 F.3d 984, 988 (8th Cir. 2009)). The courts have discretion to

decide which of the two prongs should be addressed first. Pearson v. Callahan, 555 U.S . 223 ,
236 (2009). However, district courts "may not deny qualified immunity without answering both
questions in plaintiffs favor." Walton , 752 F.3d at 1116. "Although qualified immunity is an
affirmative defense, the burden is on the plaintiff to plead, and, if presented with a properly
supported motion for summary judgment, to present evidence from which a reasonable jury

5

could find that the defendant officer has violated the plaintiffs constitutional rights." Moore v.

Indehar, 514 F.3d 756, 764 (8th Cir. 2008) (citations omitted).
Here, Plaintiff raises two claims: (1) that Defendants Wallace, May, McKay, and Wilson
were deliberately indifferent to Plaintiffs safety and failed to protect him from King, despite
allegedly knowing that King had previously assaulted other inmates; and (2) that Defendant
Wallace failed to train SECC guards and officers. The Court will discuss each count in turn.
A. Failure to Protect
"Prison inmates have a clearly established Eighth Amendment right to be protected from
violence by other inmates." Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000). "A correctional
official ' violates the Eighth Amendment if he is deliberately indifferent to the need to protect an
inmate from a substantial risk of serious harm from other inmates."' Jones v. Wallace, 641 Fed.
App' x 665, 666 (8th Cir. 2016) (quoting Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir.
1998)). A failure-to-protect claim under the Eighth Amendment "has an objective component,
whether the situation presented a substantial risk of serious harm, and a subjective component,
whether the prison official was deliberately indifferent to the inmate' s health or safety." Jackson,
140 F .3d at 1151. With regard to the first requirement, "it is beyond dispute that a sexual assault
is sufficiently serious to constitute a deprivation of [a prisoner's] constitutional rights." Marsh v.

Phelps Cty., No. 4:16CV3032, 2016 WL 165886, at *7 (D. Neb. Dec. 8, 2016).
To be liable for deliberate indifference under the subjective component, the 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." Farmer v. Brennan, 511 U.S . 825, 837 (1994).
"'Deliberate indifference includes something more than negligence but less than actual intent to

6

harm;' it requires proof of a reckless disregard of the known risk." Holden v. Hirner, 663 F.3d
336, 341 (8th Cir. 2011) (quoting Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir.1998)
(citation and internal quotation omitted)). Such reckless disregard is shown only where an
official "actually knows of the substantial risk and fails to respond reasonably to it." Young v.

Selk, 508 F .3d 868, 873 (8th Cir. 2007) (citation omitted). "[A]n official's failure to alleviate a
significant risk that he should have perceived but did not" does not violate the Eighth
Amendment. Farmer, 511 U.S. at 838. In addition, an official with knowledge of such a risk
"may be found free of liability if [he] responded reasonably to the risk, even if the harm
ultimately was not averted." Id. at 844.
Plaintiff asserts that Defendants Wallace, May, McKay, and Wilson were deliberately
indifferent to his need for safety through the Defendants' knowledge and disregard of the
substantial risk of serious harm to Plaintiff, specifically the fact that inmate King had previously
sexually assaulted other inmates. With regard to Defendant McKay, Plaintiff alleges that McKay
informed Plaintiff that he would be place in administrative segregation, not returned to protective
custody, due to his conduct violation pertaining to the suicide attempt. (F AC if 24) Further,
Plaintiff claims that McKay instructed Defendant Wilson to place Plaintiff on the restraint bench
and then in the cell with King. (F AC irir 23, 33) Specific to Defendant Wilson, Plaintiff alleges
that Wilson escorted Plaintiff from suicide watch and initially said Plaintiff was returning to
protective custody. (F AC ifif 21-22) However, Wilson then placed Plaintiff in the cell with King
at the instruction of McKay and Defendant May. (FAC irir 33) According to Plaintiff, Defendant
May stated that the only available administrative segregation cell was with King, and that if
Plaintiff refused the offered cell, he would receive a conduct violation and be restrained to the
restraint bench for hours. (F AC irir 26-29) Plaintiff contends that Defendants aware of, or

7

should have been aware of, investigations into King regarding prior sexual assaults of other
inmates. (FAC iii! 31-35) With regard to Defendant Wallace, Plaintiff contends that Wallace
failed to adequately supervise and control his subordinates by allowing Plaintiff to be placed in
the cell with King. (F AC

if 45)

In support of his claims, Plaintiff relies on Newman v. Holmes for the proposition that
even an unanticipated attack by an inmate can justify a prison official' s liability under the Eighth
Amendment. 122 F.3d 650 (8th Cir. 1997). In Newman, plaintiffs, prison inmates, alleged that a
prison official was deliberately indifferent to the need to protect them from an attack by another
inmate, when the official left open the cell door of an inmate in isolated confinement, and that
inmate attacked the plaintiffs. Id. at 651. The Eighth Circuit Court of Appeals found that the
evidence showed the prison official recklessly disregarded a known excessive risk to inmate
safety by opening the door of an inmate known to be a potential risk to others. Id. at 653.
Plaintiff also relies upon Wade v. Haynes, wherein the plaintiff, an inmate of slight build,
claimed that he was wrongfully placed in a rarely monitored administrative cell with a known
violent inmate who beat and sexually assaulted plaintiff. 663 F .2d 778, 780-81 (8th Cir. 1981 ).
The Wade court determined that the officer' s "conduct was such that ajury could reasonably
find that he either knew or should have known that the . .. prisoner . . . had been ordered
separated from the other inmates for his own safety and the safety of others." Id. at 781.
Finally, Plaintiff contends that this case is analogous to Walton v. Dawson, 752 F.3d 1109
(8th Cir. 2014). In Walton , the plaintiff, a pretrial detainee, was sexually assaulted by an inmate
after the jailer failed to lock the cell doors at night. Id. at 1114. An unwritten policy to lock the
doors at night had been routinely ignored, and the inmate had previously sexually assaulted
another inmate, about which incident the jailer knew. Id. at 1119. While discussed in the

8

context of an official's failure to train, the Eighth Circuit found that the cells were not locked and
were rarely checked, creating a risk both obvious and known to prison officials in light of first
hand observations and the plaintiffs fear. Id. at 1120. The Walton court found that "under the
totality of the circumstances, failing to do anything to mitigate this risk . . . potentially fell below
minimum constitutional standards. Id. (citations omitted).
The present case is distinguishable on its facts from Newman , Wade, and Walton. Here,
Plaintiff is unable to show that King had a reputation of either sexual assault or violence that was
known to Defendants. Nothing in the record indicates that Defendants May, McKay, or Wilson
had prior knowledge of any previous assaults by King or any indication that he was a risk to
others. Unlike Walton, the officers did not "[do] next to nothing" but immediately removed
Plaintiff as soon as they were notified of the incident. Id. While the record shows that King had
over 30 violations for conduct unrelated to violence, he had only one conduct violation for minor
assault for fighting. (King Depo., PSMF Ex. J p. 8, ECF No. 82-10) Further, the evidence
shows that, although he mentioned to May that he had previously been in housed under PC
status, Plaintiff did not request PC. (Bloomer Dep., PSMF Ex. B pp. 22-24, ECF No. 82-2)
Plaintiff did not express any fear or complaints when placed in the cell, and he did not yell out
during the alleged rape. Further, none of the Defendants were aware of King's reputation or any
prior sexual relationships or sexual assaults between King and other inmates at the time of the
alleged assault. (DSUMF

~~

94, 104, 113) Indeed, prior to October 2013, King had no conduct

violations related to sexual misconduct. (DSUMF

~

130)

Plaintiff argues that he was placed in risk of substantial harm because he was a sex
offender and he was housed in a cell with a man much large that had a prior assault violation
such that Defendants must have known about the risk. However, this requires that Plaintiff

9

present evidence of "'very obvious and blatant circumstances ' indicating that the defendant knew
the risk existed." Spruce v. Sargent, 149 F.3d 783 , 786 (8th Cir. 1998). Such obvious
circumstances are absent here.
The Court finds Holden v. Hirner instructive in this case. 663 F.3d 336 (8th Cir. 2011).
In Holden , a sex offender was placed in a protective custody pod with three other inmates. Id. at
339. A fight erupted between the plaintiff and his cellmates, causing injuries to the plaintiff. Id.
The plaintiff raised a failure to protect claim, arguing that he was placed in risk of substantial
harm because he was a sex offender and because he was placed in protective custody with an
inmate who was previously involved in a fight. Id. at 341. The plaintiff claimed that the prison
officials were deliberately indifferent to his safety because they failed to take precautions to
protect him despite being aware of the dangers faced by sex offenders in prison and the risk the
inmate posed to plaintiff. Id. The Eighth Circuit disagreed and found that the plaintiff failed "to
show anything in the record to establish this other inmate was a sex offender or [plaintiff]
suspected the other inmate was a sex offender." Id. The Holden court reasoned, " [e]ven if we
assume for summary judgment purposes Holden presented sufficient evidence that he faced a
substantial risk of serious harm, Holden fails to establish the prison officials knew of and were
deliberately indifferent to the danger." Id.
Likewise, in the instant case, Plaintiff is unable to establish that the Defendant officers
knew of, and were indifferent to, any danger. King never threatened Plaintiff, and Plaintiff did
not indicate that he felt threatened. " An inmate' s history of violence alone is insufficient to
impute to prison officials subjective knowledge of the inmate' s danger to harm other inmates."
Id. (citing Norman v. Schuetzle, 585 F.3d 1097, 1104- 06 (8th Cir.2009)). "Courts ' must give

substantial deference to prison officials to determine the best methods for dealing with dangerous

10

inmates in the volatile environment that is prison life. "' Holden, 663 F.3d at 341-42 (quoting
Norman , 585 F.3d at 1105)).
At best, Plaintiff has presented evidence that Defendant Wilson checked after the fact and
possibly discovered some complaints of sexual misconduct lodged against King that were not
relayed to the Defendants. (DSUMF Ex. F p. 13, ECF No. 81-6; PSMF Ex. B pp. 11-12, 70,
ECF No. 82-2) Plaintiff has presented no evidence that any of the Defendants were actually
aware of the prior minor assault involving King or any evidence that Defendants knew of any
specific danger King posed toward Plaintiff. As such, the evidence presented is insufficient to
show the prison officials knew of and disregarded a known risk, and therefore, Plaintiff is unable
to show that the Defendants deprived him of his constitutional right to be protected.2 Thus,
Defendants are entitled to summary judgment on Plaintiffs failure to protect claim. See Burnett
v. Acikgoz, No. 4:13-CV-1990-JAR, 2015 WL 4603475 , at *4-5 (E.D. Mo. July 30, 2015)
(granting summary judgment in favor of defendants where the record did not raise a factual
question suggesting that defendant knew of a substantial risk of harm and deliberately
disregarded it). Further, because Defendants' conduct did not violate Plaintiffs constitutional
right to be protected from harm by fellow inmates, Defendants are also entitled to summary
judgment on qualified immunity grounds. Id. at *5; see also Curry, 226 F .3d at 978-79 ("We
have held in a number of cases that prison officials are entitled to qualified immunity from §
1983 damage actions premised on an Eighth Amendment failure-to-protect theory when an
inmate was injured in a surprise attack by another inmate.").

2

Plaintiffs allegations that Defendant Wallace violated his duty to protect Plaintiff fails for the
additional reason that Wallace was not present at the time and had no personal involvement.
Prison supervisors cannot be held liable in § 1983 cases under a theory of respondeat superior.
Luckert v. Dodge Cty., 684 F.3d 808, 817 (8th Cir. 2012) (citing Langford v. Norris, 614 F.3d
445, 460 (8th Cir. 2010)).
11

B. Failure to Train

Plaintiff also asserts that Defendant Wallace failed to properly train prison guards and
officers to identify, assess, and prevent violent conflicts, including sexual assaults, between
inmates. Plaintiff alleges that Wallace ' s failure to train was evidenced by the insufficient
classification and protection provided to Plaintiff. Defendant Wallace argues that he is entitled
to summary judgment because he provided adequate training and was not deliberately indifferent
to Plaintiff.
" [A] supervisor may be held individually liable under § 1983 if he directly participates in
a constitutional violation or if a failure to properly supervise and train the offending employee
caused a deprivation of constitutional rights. " Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir.
1996) (citation omitted). For supervisory liability to attach, the court must first find individual
liability on the underlying substantive claim. McCoy v. City of Monticello , 411 F .3d 920, 922
(8th Cir. 2005). In other words, " [w ]ithout a showing that the [officers] violated the
Constitution, however, there can be no liability for failure to train." Carpenter v. Gage, 686 F.3d
644, 651 (8th Cir. 2012) (citation omitted); see also Moore v. City of Desloge, Mo., 64 7 F .3d
841 , 849 (8th Cir. 2011) ("Because [the plaintiff] failed to establish [defendant officer] violated
[plaintiffs] constitutional rights, [plaintiff] cannot maintain this action against [the
supervisor] .").
As discussed above, Plaintiff failed to establish that Defendants May, McKay, or Wilson
violated his constitutional rights; therefore, Defendant Wallace cannot be held liable for failure
to train on the§ 1983 claims asserted against those Defendants. Further, having concluded that
Defendants May, McKay, and Wilson are entitled to summary judgment on qualified immunity
grounds, their supervisor, Defendant Wallace, is also entitled to summary judgment. See Turpin

12

v. Cty. of Rock, 262 F.3d 779, 784 (8th Cir. 2001) (finding county entitled to summary judgment

where district court properly granted individual defendants summary judgment on qualified
immunity grounds).
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment [ECF No.

79] is GRANTED. A separate Judgment will accompany this Memorandum and Order.
Dated this 21st day of July, 2017.

~~~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

13