Gettimier v. Burse, et al

Filing 36

OPINION, MEMORANDUM AND ORDER: HEREBY ORDERED that Defendants Pike County Missouri and Sheriff Stephen Kortes Motion to Dismiss Plaintiff's Second Amended Complaint [Doc. No. 34 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff is given 14 days from the date of this Opinion, Memorandum and Order to file an amended complaint. ( Response to Court due by 1/20/2015.). Signed by District Judge Henry Edward Autrey on 01/06/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CHRISTIAN GETTIMIER,
Plaintiff,
v.
MARK BURSE, et al.,
Defendants,

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No. 2:13CV44 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants Pike County Missouri and Sheriff Stephen
Korte’s Motion to Dismiss Plaintiff’s Second Amended Complaint. [Doc. No. 34]. Plaintiff
opposes the motion. For the reasons set forth below, the Motion is granted.
Facts and Background1
Plaintiff alleges that he was sexually assaulted by another inmate, Defendant Mark Burse,
in Burse’s cell in Pike County Jail. Plaintiff filed this action alleging that Defendant Korte,
Sheriff of Pike County, failed to properly train and supervise his employees to make sure that
any alarm/distress buttons that were activated in the Pike County Jail were properly investigated
and were responded to in a timely manner and that Defendants Pike County and Korte failed to
monitor inmates and keep them in a safe environment. Plaintiff also alleges unconstitutional
custom and practice in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and assault
and battery under state law.
Plaintiff alleges that, on April 7, 2011, he was incarcerated in the Pike County Jail
awaiting trial for a charge unrelated to this matter. Plaintiff was one of several men housed in the

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The recitation of facts is taken from Plaintiff’s Second Amended Complaint and are taken as true for the
purposes of this motion. Such recitation in no way relieves any party from the necessary proof thereof in later
proceedings.

Jail. Plaintiff was placed in a cell with Defendant Burse. Plaintiff alleges that Defendants Pike
County and Korte knew or should have known that Plaintiff was used as a CI in a case against
Burse’s family member. Further, Plaintiff alleges that Defendants Pike County and Korte knew
or should have known that Burse had the propensity to cause serious physical harm to
individuals, as Burse was convicted in 1990 for sexual assault against a minor child and again in
1995 in Pike County, Missouri on a Class A Felony Assault in the 1st Degree-Serious Physical
Injury. Additionally, Defendants Pike County and Korte were placed on notice by other inmates
of Burse’s propensity to physically harm inmates, including, but not limited to, sexually, prior to
placing Plaintiff in the same cell. This incident was at least the third serious physical assault
involving Defendant Burse, who was housed alone in his own cell without a cellmate because of
his prior assaults on other inmates and his violent propensities.
Defendant Burse forced himself on Plaintiff in the cell where no monitoring was in place
and ultimately sexually assaulted Plaintiff. Plaintiff attempted on several occasions to summon
the jailor on duty by pressing the alarm/distress button in the cell, but no employee of the jail
answered or showed up to investigate the problem.
Although the alarm/distress button was placed in the cell for emergencies, Defendant
Korte failed to train his employees on how to respond in a timely manner in the event the alarm
is signaled or in the alternative no adequate policy was implemented or adequate training
regarding the policies was conducted by Korte. Defendant Korte subsequently acknowledged
that there was a policy in place, and that the department policy was not followed. Defendant
Korte failed to properly train and supervise his employees to make sure that any alarm/distress
buttons that were activated were properly investigated in a timely manner.
Plaintiff asserts the Pike County Sheriff’s Department Jail Manual, which Plaintiff
attached as an exhibit to his Second Amended Complaint, was last revised in 2006. Among its

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requirements is that inmates should be housed within an established classification system which
includes consideration of the inmate’s background with behaviour problems, history of violence
behavior, history of homosexual behavior, and vulnerability to attack. The Manual also instructs
Correctional Officers to observe inmates considered to be aggressive, violence prone, suicidal or
mentally ill as often as feasible but at least every fifteen minutes. Plaintiff alleges that since that
revision, Defendants Korte and Pike County have had notice that a breakdown in the policies in
the manual has resulted in assaults similar to Defendant Burse’s assault on Plaintiff. Further,
Plaintiff alleges that a holdover inmate housed in Pike County Jail sexually assaulted another
inmate approximately two weeks before Defendant Burse assaulted Plaintiff.
Standard
A defendant may file a motion to dismiss for failure to state a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In other words, a plaintiff must plead facts from which the court can draw a
“reasonable inference” of liability. Iqbal, 556 U.S. at 678. The complaint need not contain
“detailed factual allegations” but must contain more than mere “labels and conclusions, and a
formulaic recitation of the elements” or “naked assertion[s]” devoid of “further factual
enhancement.” Twombly, 550 U.S. at 555, 557. An “unadorned, the-defendant-unlawfullyharmed-me accusation” will not suffice. Iqbal, 556 U.S. at 678. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations,” id. at 679,
which “raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555.
In evaluating a motion to dismiss, the court can “choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of truth.”

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Iqbal, 556 U.S. at 679. Turning to any “well-pleaded factual allegations,” the court should
“assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. The court may only consider the initial pleadings. Brooks v. Midwest Heart Grp., 655
F.3d 796, 799 (8th Cir. 2011).
Discussion
In Count II, Plaintiff sets forth claims under § 1983 against Pike County and Sheriff
Korte for failure to properly monitor, train, supervise, and discipline officers, and a custom of
inaction with regard to inmate assault by other inmates. Plaintiff sues Defendant Korte in his
official and individual capacities.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” Cook v. City of Bella
Villa, 582 F.3d 840, 848-49 (8th Cir. 2009) (citation omitted). It is well established that for
municipalities, or supervisory defendants sued in their individual capacities,2 respondeat
superior or vicarious liability will not attach under § 1983. City of Canton v. Harris, 489 U.S.
378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Livers v. Shenck, 700 F.3d 340, 355 (8th Cir.
2012). “A local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s policy . . . inflicts the injury
that the government as an entity is responsible under § 1983.” Monell v. Department of Social
Services of City of New York, 436 U.S. 658, 694 (1978). A municipality may be liable for failure
to train its employees when that failure can be shown to be deliberate indifference to the rights of
others. Yellow Horse v. Pennington County, 225 F.3d 923, 928 (8th Cir. 2000). Similarly, a
supervisory defendant who is not alleged to have directly participated in the alleged
2

Plaintiff’s claims against Defendant Korte in his official capacity constitute claims against Pike County.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

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constitutional violation may be liable under § 1983 if he (1) had notice of a pattern of
unconstitutional acts committed by subordinates; (2) was deliberately indifferent to or tacitly
authorized those acts; and (3) failed to take sufficient remedial action; (4) proximately causing
injury to plaintiff. Livers, 700 F.3d at 355.
Deliberate indifference in the context of claims for failure to train and supervise is a
stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action. Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997);
see also Livers, 700 F.3d at 355–56 (noting that “[i]n order to show deliberate indifference or
tacit authorization, [the plaintiff] must allege and ultimately prove [the supervisory defendant]
‘had notice that the training procedures and supervision were inadequate and likely to result in a
constitutional violation.’”) (quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)).
Under circumstance where city policymakers are on actual or constructive notice that a
particular omission in their training program causes city employees to violate citizens’
constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose
to retain that program. Brown, 520 U.S. at 407. The city’s “policy of inaction” in light of notice
that its program will cause constitutional violations “is the functional equivalent of a decision by
the city itself to violate the Constitution.” Canton, 489 U.S. at 395. “A pattern of similar
constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train. Connick v. Thompson, ––– U.S. ––––, –––
–, 131 S.Ct. 1350, 1360 (2011).
Plaintiff's Second Amended Complaint alleges that Defendants Korte and Pike County
knew of Burse’s propensities; knew that Burse had previously assaulted other inmates; and, as a
result of his propensities and previous assaults, housed Burse in his own cell without a cellmate.
Plaintiff’s arguments regarding Defendants Korte and Pike County’s actions appear to be

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contradictory. On the one hand, Plaintiff asserts that the Jail’s classification policies were not
followed when Plaintiff was put in Defendant’s Burse’s cell. On the other hand, Plaintiff alleges
that, prior to Plaintiff being placed in the cell with Defendant Burse (the same day Burse
assaulted him), Burse was housed in his own cell because of his violent history and propensities.
Thus, according to Plaintiff, the classification policy was being followed prior to Plaintiff’s
assault, but whoever placed Plaintiff in the cell with Defendant Burse on the day Plaintiff was
assaulted did not follow the policy. In other words, Plaintiff argues that Defendants Korte and
Pike County should be liable for the actions of the subordinates who placed Plaintiff in a cell
with Defendant Burse. As noted, respondeat superior or vicarious liability is not cognizable
under § 1983 against municipalities and supervisory defendants. Canton, 489 U.S. at 385; Livers,
700 F.3d at 355.
In order to succeed on his claim, Plaintiff must show that there was a pattern of
Defendants, Korte or Pike County, allowing unconstitutional acts to be committed—namely
inmates like Plaintiff being housed with classified violent inmates like Defendant Burse, and
assaulted; that Korte tacitly authorized those acts; that Korte failed to take remedial action; and
that the acts caused Plaintiff’s alleged injury. However, Plaintiff has not alleged facts which put
Defendants on notice of the pattern, the actions taken by subordinates, Korte’s authorization of
the acts, or the failure to take remedial action. Plaintiff establishes in his own allegations that
prior to his assault, Defendant Burse was housed in a cell alone pursuant to prison policy.
Plaintiff’s only attempt to show a pattern that would put Defendants on notice is his
allegation that a holdover inmate housed in Pike County Jail assaulted another inmate
approximately two weeks before Defendant Burse sexually assaulted Plaintiff. However,
Plaintiff alleges no facts whatsoever regarding the circumstances of this sexual assault and
certainly does not allege that it occurred in circumstances similar to Defendant Burse’s assault of

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Plaintiff—a classified violent inmate assaulting another inmate in his cell. Even assuming,
arguendo, that these were the circumstances of the earlier assault, “a single instance of failing to
follow official policy is insufficient to establish a custom of violating the policy.” Russell v.
Hennepin Cnty, 420 F.3d 841, 849 (8th Cir. 2005) (citing Wedemeier v. City of Ballwin, 931 F.2d
24, 26 (8th Cir. 1991) (“[A] single deviation from a written, official policy does not prove a
conflicting custom or usage.”)); see also Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000)
(“Clearly, Lovell’s alleged conduct was improper and, in an incident or two may have risen to
the level of a constitutional violation. However, the isolated instances of which Gooden and
Jackson had notice were not sufficient to constitute notice of a pattern of unconstitutional acts.”)
(citation omitted).
Plaintiff further alleges that Korte failed to train his employees regarding how to respond
to the alarm/distress buttons, or to observe classified violent inmates every fifteen minutes.
These allegations are conclusory and thus not entitled to the assumption of truth. Plaintiff has not
alleged that there were any other occasions on which a distress alarm was deployed without a
response. Further, with regard to the fifteen minute observation requirement, there clearly is not
a federal requirement for correctional officers to observe violent inmates on fifteen minute
intervals, or for Defendants to follow a policy they have chosen to put in place. See Gardner v.
Howard, 109 F.3d 427, 430 (8th Cir. 1997) (noting that “there is no § 1983 liability for violating
prison policy.”).
In sum, Plaintiff has completely failed to allege facts showing a failure to monitor, train,
supervise, or discipline on the part of Defendants Pike County and Korte. See Taft v. Palmer,
2014 U.S. App. LEXIS 22904, at *3–4 (8th Cir. Dec. 5, 2014) (“Though unfortunate, that the
policies and procedures failed in this particular case—without more—does not mean that the
officials are liable under § 1983 for any deliberate indifference of their staff.”) (citing Kahle v.

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Leonard, 477 F.3d 544, 550 (8th Cir. 2007) (“A failure-to-supervise claim may be maintained
only if the official demonstrated deliberate indifference or tacit authorization of the offensive
acts.” ) (quotation omitted), and Ambrose v. Young, 474 F.3d 1070, 1079 (8th Cir. 2007) (noting
that, for official to be liable for failure to train, plaintiff must show obvious need for more or
different training and great likelihood of constitutional violation from current training)).3
Conclusion
Based upon the foregoing, the Court grants Defendants’ Motion to Dismiss Plaintiff’s
Second Amended Complaint. The Court will grant Plaintiff leave to amend his complaint, if he
can. However, if Plaintiff again fails to state a claim upon which relief may be granted the Court
will dismiss this matter with prejudice.4
Accordingly,
IT IS HEREBY ORDERED that Defendants Pike County Missouri and Sheriff Stephen
Korte’s Motion to Dismiss Plaintiff’s Second Amended Complaint [Doc. No. 34] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is given 14 days from the date of this
Opinion, Memorandum and Order to file an amended complaint.
Dated this 6th day of January, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

3

The court notes that, in Count I, Plaintiff brings a § 1983 claim against Defendant Mark Burse—the
inmate in Pike County Jail who allegedly assaulted him. Elsewhere in the Second Amended Complaint, Plaintiff
asserts that Defendant Burse is being sued in his “individual capacity,” and that “[e]ach Defendant acted under color
of state law at all times relevant to this complaint.” [Doc. No. 30 at ¶¶ 6, 9]. The fact that a fellow inmate is not a
“state actor” for purposes of § 1983 litigation is so fundamental as to not require citation. Accordingly, the Court
will dismiss Count I of the Second Amended Complaint, sua sponte.
4
The court notes that there are only so many bites allowed on any given apple and this one is almost entirely
consumed.

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