White v. Russell et al
Filing
76
MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiff's claims against defendant Kathy Moore are DISMISSED without prejudice for failure to exhaust administrative remedies. IT IS FURTHER ORDERED that defendants Terry Rus sell, Diane Montgomery, David Vandergriff, Alan Butterworth, Stacey Halton, and Michele Basham motion for summary judgment is GRANTED. [Doc. 54] An appropriate order of partial dismissal and judgment will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 1/7/2019. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTONIO RICARDO WHITE,
Plaintiff,
v.
TERRY RUSSELL, et al.,
Defendants.
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No. 4:16-CV-886 CAS
MEMORANDUM AND ORDER
This matter is before the Court on a motion for summary judgment filed by defendants Terry
Russell, Diane Montgomery, Kathy Moore, David Vandergriff, Alan Butterworth, Stacey Halton,
and Michele Basham (collectively “defendants”). Plaintiff, a Missouri prisoner, brings this action
pursuant to 42 U.S.C. § 1983 through appointed counsel, alleging that defendants violated his civil
rights by failing to protect him from assault by other inmates. Plaintiff opposes the motion for
summary judgment and it is fully briefed. For the following reasons, plaintiff’s claims against
defendant Moore will be dismissed without prejudice for failure to exhaust administrative remedies,
and the motion for summary judgment will be granted as to the other defendants.
I.
Legal Standard
The standards applicable to summary judgment motions are well settled. Pursuant to Federal
Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the
information before the court shows “there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated
Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly
establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor).
Once this burden is discharged, if the record shows 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 a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in his 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); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029
(8th Cir. 2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir. 2000). 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about
a material fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Herring, 207 F.3d at 1029 (quoting Anderson, 477 U.S. at 248). A party
resisting summary judgment has the burden to designate the specific facts that create a triable
question of fact. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). Selfserving, conclusory statements without support are not sufficient to defeat summary judgment. See
Conolly v. Clark, 457 F.3d 872, 876 (8th Cir. 2006).
With this standard in mind, the Court accepts the following facts as true for purposes of
resolving this motion for summary judgment.
II. Facts
From January to December 2014, plaintiff was incarcerated at Eastern Reception Diagnostic
and Correctional Center (“ERDCC”) in Bonne Terre, Missouri. Plaintiff brings this action pursuant
to 42 U.S.C. § 1983 alleging violations of his civil rights during and after he was attacked by fellow
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inmates on June 10, 2014, June 13, 2014, and September 19, 2014. Named as defendants are: Terry
Russell (Warden of ERDCC); Diane Montgomery (Classification Worker at ERDCC); Kathy Moore
(Classification Worker at ERDCC); David Vandergriff (Correctional Officer at ERDCC); Alan
Butterworth (Functional Unit Manager at ERDCC); Stacey Halton (Correctional Officer at
ERDCC); and Michele Basham (Correctional Officer at ERDCC). Defendants are named in their
individual capacities.
Plaintiff alleges he was assaulted in B-Yard on June 10, 2014 by a group of inmates,
including Deandre Banks (“Banks”). The record reflects that two months prior to the assault,
plaintiff and Banks signed a Missouri Department of Corrections (“MDOC”) Enemy Waiver
declaring that they were not enemies.
Plaintiff alleges that defendants Basham and Halton witnessed the assault and violated their
legal duties as correctional officers when they failed to intervene and stop the attack. Plaintiff
testified in his deposition that he did not seek medical attention for any injuries attributable to the
June 10, 2014 assault and the Court notes that no medical records have been submitted by either of
the parties. Defendants Basham and Halton deny witnessing the alleged assault upon plaintiff.
Plaintiff further alleges that on June 11, 2014, defendant Vandergriff met with and
interviewed inmates to investigate the assault. Defendant Vandergriff denies knowledge of or
involvement in the investigation and testified at deposition that it would have been the responsibility
of lower ranked officials to interview inmates regarding an assault. Plaintiff admits in his deposition
that he did not personally witness defendant Vandergriff interview the inmates and was only under
that belief due to hearsay from unidentified inmates.
Plaintiff alleges that after the June 10, 2014 assault, he stopped defendant Montgomery while
she was making her weekly rounds to inform her that he feared for his safety and wanted to be
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placed on protective custody status and transferred to another prison. Plaintiff alleges that defendant
Montgomery’s response was to tell him to file an Informal Resolution Request (“IRR”). Defendant
Montgomery testified at deposition that it was not within her authority to independently release
offenders from administrative segregation or to place them on protective custody status, but that she
did have the authority to recommend to a custody staff member that an offender be placed on
protective custody status.
Plaintiff alleges that his caseworker defendant Moore subjected him to physical danger when
she interviewed him in his cell about an IRR he filed about property he owned and believed to be
in another inmate’s possession. Plaintiff alleges that he requested to be interviewed away from other
inmates, but defendant Moore refused, which caused him to be labeled as a “snitch” and increased
his risk to be assaulted.
Plaintiff wrote to defendant Russell complaining of this incident and
requested a transfer to another facility.
On June 13, 2014, plaintiff had a second physical altercation with inmate Banks. On June
16, 2014, plaintiff wrote a letter to defendant Butterworth to inform him that he had received threats
to his life by gang-affiliated inmates. On June 18, 2014, plaintiff was assigned to administrative
segregation. On June 30, 2014, plaintiff wrote a letter to defendant Russell to inform him that his
life was in danger because inmates believed he stabbed Banks. Plaintiff again requested defendant
Russell to transfer him to another institution.
On July 16, 2014, plaintiff attended a segregation hearing presided over by three committee
members, including defendants Butterworth and Montgomery. The Classification Hearing Form
reflects that the purpose for the hearing was a 30-day review of plaintiff’s placement in
administrative segregation. Plaintiff did not provide a statement during the hearing and the
committee recommended continued segregation from the general population.
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On September 10, 2014, plaintiff attended a second segregation hearing presided over by the
same three committee members. The Classification Hearing Form reflects that plaintiff made the
following statement: “Let me out, if your [sic] not gonna transfer me.” The Form further indicates
that plaintiff had no active sanctions and no declared enemies in general population. Defendant
Butterworth testified at deposition that it was not within his authority to transfer an inmate to another
facility so they released plaintiff to general population on September 19, 2014 as per plaintiff’s
request. On the day of release, plaintiff was assaulted by fellow inmates, thrown over a railing,
stabbed, and beaten.
III. Discussion
A. Administrative Exhaustion
In their motion, defendants first argue that plaintiff did not administratively exhaust his
claims as to defendants Moore, Basham, and Halton before he filed the instant lawsuit, as required
by the Prison Litigation Reform Act (“PLRA”). Specifically, defendants argue that plaintiff did not
exhaust his claims against defendant Moore because he did not file a formal grievance or grievance
appeal and plaintiff did not exhaust his claims against defendants Halton and Basham because the
IRR he filed against them was untimely and did not refer to them by name.
Plaintiff opposes the motion for summary judgment on these grounds. Plaintiff argues he
is not barred from bringing his claims against Moore, Halton or Basham for failure to exhaust
administrative remedies because he was prevented from utilizing ERDCC’s grievance procedures
due to the misconduct of prison officials. Plaintiff does not dispute his failure to file formal
grievances or grievance appeals after submitting IRRs against Moore, Halton, and Basham, and does
not dispute that he did not specifically name Halton and Basham in his IRR.
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The record before the Court includes plaintiff’s ERDCC grievance records, which reveal the
following relevant facts. On September 24, 2014, plaintiff filed IRR 14-1677 complaining that
defendant Moore interviewed him in his cell regarding a report he made about missing property,
which caused other inmates to label him as a “rat.” On the face of IRR 14-1677, it is noted that the
investigation was “satisfactory.” It is unclear from the document and the parties disagree as to
whether a prison official or plaintiff signed off on the investigation as “satisfactory.”
On October 8, 2014, plaintiff filed IRR 14-1799 complaining that on June 10, 2014 he was
assaulted in B-Yard while two correctional officers witnessed the attack but did not intervene to
protect him from injury. Although plaintiff did not name the two correctional officers, he testified
that he intended to refer to defendants Halton and Basham. Plaintiff admits IRR 14-1799 was
untimely filed pursuant to the MDOC offender grievance process, but argues he submitted a timely
IRR to his caseworker on June 20, 2014, which was not filed due to officer misconduct.
The PLRA imposes an exhaustion requirement on state prisoners who wish to pursue a claim
under § 1983. The PLRA provides: “No action shall be brought with respect to prison conditions
under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). Exhaustion is “mandatory” and unexhausted claims must be dismissed. Jones
v. Bock, 549 U.S. 199, 211 (2007).
The Supreme Court has explained that to properly exhaust administrative remedies, a
prisoner must complete the administrative review process in accordance with the procedural rules
as defined by the applicable prison grievance process itself. Jones, 549 U.S. at 218-19. Compliance
with prison grievance procedures is all that is required by the PLRA to properly exhaust. Id. The
Court noted that the level of detail necessary to comply with grievance procedures “will vary from
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system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” Id. “The PLRA’s administrative exhaustion
requirement is an affirmative defense that the defendant has the burden to plead and prove.”
Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005). “Where a motion for summary judgment
is founded on an affirmative defense, the moving party has the burden to present facts that establish
that defense.” See Ballard v. Rubin, 284 F.3d 957, 964 n.6 (8th Cir. 2002).
Inmates have only been excused from complying with an institution’s grievance procedures
when officials have prevented prisoners from utilizing the procedures, see Miller v. Norris, 247 F.3d
736, 740 (8th Cir. 2001), or when officials themselves have failed to comply with the grievance
procedures. See Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001). Plaintiff must present some
evidence, other than mere conclusory statements, to demonstrate that he was precluded from fully
exhausting his administrative remedies. See Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005).
As to defendant Moore, the record does reflect a question of fact as to whether plaintiff
signed off on the investigation as “satisfactory,” which could have prevented him from
automatically receiving grievance and appeal paperwork. However, this question of fact is not
material to the case because even if plaintiff was not automatically provided with grievance and
appeal forms due to the “satisfactory” designation on IRR 14-1677, plaintiff has not alleged or
submitted any evidence that he requested grievance and appeal forms, attempted to obtain such
forms and was denied access, or was prevented from pursuing the grievance process against
defendant Moore.
See Miller, 247 F.3d at 740 (an inmate is deprived of exhausting his
administrative remedies when evidence reflects prison officials actually failed to respond to requests
for grievance forms). Plaintiff also does not claim he was unaware of the grievance process. To the
contrary, plaintiff testified via affidavit that he was familiar with the IRR process. Thus, plaintiff's
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argument that administrative remedies were unavailable to him solely because of the “satisfactory”
designation on IRR 14-1677 lacks merit. The Court will dismiss defendant Moore for plaintiff’s
failure to exhaust his administrative remedies.
As to defendants Basham and Halton, the Supreme Court has definitively held that
exhaustion is not per se inadequate simply because a person being sued under § 1983 was not named
or otherwise identified in the administrative process. See Jones, 549 U.S. at 218. All that is
necessary to defeat a procedural default is that the prison have the ability from the initial grievance
to “identify the unidentified persons and acknowledge that they were fairly within the compass of
the prisoner’s grievance.” Williams v. Beard, 482 F.3d 637, 640 (3rd Cir. 2007). Here, it can be
fairly assumed that the ERDCC could have determined the identity of defendants Basham and
Halton by checking which correctional officers were assigned to B-Yard on June 10, 2014.
Defendants have not presented evidence showing that the identities of Basham or Halton were
undiscoverable or that ERDCC grievance procedures require an offender to name a prison official
in an IRR. See Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014) (failure to exhaust administrative
remedies is found in a case where prison policy specifically requires inmates to name individuals
in IRR).
Additionally, there is a question of material fact as to whether prison officials prevented
plaintiff from filing a timely IRR concerning the June 10, 2014 incident. Plaintiff submitted an
affidavit stating that he completed an IRR against Basham and Halton within 15 days of the June
10, 2014 assault and submitted it to defendant Montgomery, who was his caseworker at the time.
Plaintiff further testified that on September 18, 2014, he spoke to a classification officer to inquire
about the status of the IRR, who informed plaintiff that it was never received and would need to be
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resubmitted.1 Plaintiff’s statements via this affidavit are sufficient to create a genuine dispute as to
whether he submitted a timely written grievance. See McPeek v. Blanchard, 670 F. App'x 424, 42425 (8th Cir. 2016) (unpublished per curiam) .
The Eighth Circuit has held that § 1997e(a) of the PLRA “does not require exhaustion of all
remedies; it requires the exhaustion of such administrative remedies as are available.” Miller, 247
F.3d at 740 (emphasis added) (internal quotation omitted). The Eighth Circuit has stated, “We
believe that a remedy that prison officials prevent a prisoner from utilizing is not an available
remedy under § 1997e(a).” Id. (internal quotations omitted). Also, compliance has been excused
when prison officials themselves have failed to comply with the grievance procedures. Gibson, 431
F.3d at 341. In Foulk v. Charrier, the Court found that the plaintiff had exhausted his available
administrative remedies because, once the MDOC failed to respond to his IRR, no further
administrative proceedings were “available” to him. Foulk, 262 F.3d at 698. Because there are
questions of material fact as to whether plaintiff submitted a timely IRR to his caseworker and
whether the IRR was not filed due to officer misconduct, preventing him from accessing the
grievance process, the Court will not dismiss plaintiff’s claims against Basham and Halton for
failure to exhaust his administrative remedies.
1
Defendants argue in their Reply that plaintiff's affidavit is insufficient to create a genuine
issue of material fact and should be stricken. The Court disagrees and will consider plaintiff’s
affidavit for the purposes of defendants’ motion for summary judgment. See English v. Payne, 720
F. App’x 810, 811 (8th Cir. 2018) (unpublished per curiam) (affidavit submitted in response to
summary judgment motion attesting that inmate submitted unanswered grievances to prison officials
was appropriate for reviewing administrative exhaustion); see also Foulk, 262 F.3d at 697 (plaintiff
was under no obligation to plead exhaustion in his complaint).
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B. Qualified Immunity and Unconstitutional Failure to Protect from Harm
Defendants further assert that all of plaintiff’s claims under § 1983 are barred by qualified
immunity. “Qualified immunity may protect government officials from liability under 42 U.S.C.
§ 1983, but not if their conduct violated ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Nelson v. Corr. Med. Servs., 583 F.3d 522, 527
(8th Cir. 2009) (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted)). In analyzing
a claim of qualified immunity, courts consider two questions: (1) whether the facts a plaintiff has
alleged or shown, when viewed in the light most favorable to plaintiff, support a finding that the
conduct of defendants violated a constitutional right, and (2) whether the constitutional right was
“clearly established” such that a reasonable official would have known his or her actions were
unlawful. Nelson, 583 F.3d at 528 (citing Pearson v. Callahan, 555 U.S. 223 (2009)).
Here, plaintiff asserts that defendants failed to protect him from being assaulted. A
prisoner’s right to be free from violence is clearly established. The Eighth Amendment requires
officials to “provide humane conditions of confinement” by taking reasonable steps to protect
inmates convicted of crimes from assault by other inmates. Farmer v. Brennan, 511 U.S. 825, 832
(1994).
“[P]rison officials do not commit a constitutional violation every time one prisoner attacks
another.” Young v. Selk, 508 F.3d 868, 871-72 (8th Cir. 2007) (citations omitted). To prove
unconstitutional failure to protect from harm, plaintiff must show an objectively, sufficiently serious
deprivation, meaning he was incarcerated under conditions posing a substantial risk of serious harm,
and the defendant was deliberately indifferent to the substantial risk of serious harm. Id. An inmate
“must demonstrate that he suffered extreme deprivations, meaning that he was denied the minimal
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civilized measure of life’s necessities.” Schoelch v. Mitchell, 625 F.3d 1041, 1046 (8th Cir. 2010)
(quotation marks and citations omitted).
The second requirement is subjective and requires the inmate to prove that the prison official
had a “sufficiently culpable state of mind.” Young, 508 F.3d at 873 (quoting Lenz v. Wade, 490
F.3d 991, 995 (8th Cir. 2007)). An official is deliberately indifferent if he or she actually knows of
a substantial risk and fails to respond reasonably. Walls v. Tadman, 762 F.3d 778, 782 (8th Cir.
2014); Whitson v. Stone County Jail, 602 F.3d 920, 923 (8th Cir. 2010). Deliberate indifference is
“more than ordinary lack of due care for the prisoner’s interests or safety” and “describes a state of
mind more blameworthy than negligence” but “something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835
(quotation marks and citations omitted).
1. Defendants Stacey Halton and Michele Basham
Plaintiff alleges that on June 10, 2014 he was assaulted in B-Yard by fellow inmates while
correctional officers Basham and Halton witnessed the assault and failed to intervene. Plaintiff
further alleges that Basham and Halton violated ERDCC protocol by subsequently failing to require
the inmates involved in the assault to sign enemy waivers. Plaintiff claims these actions violated
his Eighth Amendment rights.
To establish a claim of failure to protect, plaintiff “must show that ‘the alleged wrongdoing
was objectively harmful enough to establish a constitutional violation.’” Schoelch, 625 F.3d at 1046
(quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Plaintiff must present “evidence that he
suffered an objectively serious mental or physical injury” from the assault or that defendants’ failure
to protect him from a fellow inmate is “likely to cause serious injury in the future.” Id. (citing
Helling v. McKinney, 509 U.S. 25, 34 (1993)).
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Plaintiff has not presented any evidence to establish that he suffered an objectively serious
mental or physical injury as a result of the June 10, 2014 assault. Although plaintiff alleges in his
Complaint that he sustained injuries to his face, back, head, wrist, and emotional and mental
anguish, the record is devoid of medical evidence supporting a physical or mental injury caused by
the assault. In fact, plaintiff testified in his deposition that chose not to see a doctor on the day of
or the day after the assault and, although he requested medical care on June 12, 2014 for chest pains,
he retracted his request and asked to be placed back in the housing unit as he was being escorted to
medical. Thus, plaintiff has not satisfied the objective component of his failure to protect claim to
sufficiently show that defendants Basham and Halton violated his constitutional rights.
Additionally, plaintiff has not presented any evidence, via an ERDCC official policy or
otherwise, to establish that it was the responsibility of defendants Basham or Halton to process
enemy waivers or that their failure to do caused plaintiff an objectively serious deprivation.
The Court therefore concludes summary judgment should be granted in favor of defendants
as to plaintiff’s claims against defendants Basham and Halton.
2. Defendant David Vandergriff
Plaintiff alleges he witnessed several inmates report to the Security Complex building on the
morning of June 11, 2014 and that defendant Vandergriff questioned those inmates about the June
10, 2014 assault. Plaintiff further alleges that defendant Vandergriff disregarded a significant risk
of harm to plaintiff by failing to take adequate steps to keep the inmates involved in the assault
separated from plaintiff and, as a result, he was attacked a second time by inmate Banks on June 13,
2014. Plaintiff claims that defendant Vandergriff’s actions violated his Eighth Amendment rights.
The Court finds that plaintiff has failed to introduce sufficient evidence to raise a genuine
dispute of material fact on the failure to protect claim against defendant Vandergriff. Specifically,
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plaintiff fails to satisfy the subjective prong, in which the inmate must prove the official acted with
“reckless disregard of the known risk” to his safety. Holden v. Hirner, 663 F.3d 336, 341 (8th Cir.
2011) (quotation marks and citation omitted).
No evidence of record shows or gives rise to a reasonable inference that defendant
Vandergriff was aware of a risk to plaintiff prior to the June 13, 2014 attack or that he recklessly
failed to respond to it by separating plaintiff from inmate Banks. See Nelson v. Shuffman, 603 F.3d
439, 447 (8th Cir. 2010). The evidence does not show that plaintiff told defendant Vandergriff that
he feared a second assault by inmate Banks, or that defendant Vandergriff took part in the
investigation or was on notice of the circumstances giving rise to the investigation. In fact, there
is no evidence in the record that any such investigation actually took place on June 11, 2014.
In his deposition, defendant Vandergriff testified that he had no involvement in the alleged
investigation, it would have been the responsibility of lower-ranked officials to perform any such
investigation, and he had no knowledge of any altercations or investigations involving plaintiff until
after plaintiff was assaulted by inmate Banks on June 13, 2014. Defendant Vandergriff further
testified that there could have been many reasons for inmates to report to the Security Complex other
than for an investigation. Plaintiff admits in his deposition that he did not personally witness
defendant Vandergriff interview the inmates and was only under that belief due to hearsay from
unidentified inmates.
The record lacks any evidence documenting defendant Vandergriff’s
knowledge of a risk to plaintiff.
The Court therefore concludes summary judgment should be granted in favor of defendants
as to plaintiff’s claims against defendant Vandergriff.
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3. Defendants Alan Butterworth and Diane Montgomery
Plaintiff alleges that defendants Butterworth and Montgomery knowingly placed plaintiff
in danger by denying his requests for transfer, releasing him into general population after the
September 10, 2014 segregation hearing without having an enemy waiver signed, and failing to
place him in a single-man cell. Plaintiff claims that these actions violated his Eighth Amendment
rights.
The Court finds that plaintiff has failed to introduce sufficient evidence to raise a genuine
dispute of material fact on the claim of failure to protect against defendants Butterworth or
Montgomery. To state a failure to protect claim under the Eighth Amendment and satisfy the second
subjective prong, a prisoner must allege that defendants were aware of facts from which they could
infer the existence of a substantial risk of serious harm to him, they actually drew the inference, and
they failed to take reasonable steps to protect him. See Farmer, 511 U.S. at 836-38, 844.
The evidence of record reflects that on June 16, 2014, defendants Butterworth and
Montgomery recommended that plaintiff be assigned to administrative segregation. Defendant
Butterworth was the Committee Chair of segregation hearings and defendant Montgomery was a
member of the three-person panel. It was not until plaintiff’s second Administrative Segregation
Hearing on September 10, 2014, over three months after plaintiff’s altercation with Banks, that
defendants Butterworth and Montgomery recommended his release to the general population. This
recommendation was made only after plaintiff affirmatively stated during the hearing that he wanted
to be placed in general population if he could not be transferred to another institution. The official
policy on Temporary Administrative Segregation Confinement evidences that defendant
Butterworth’s position as a Functional Unit Manager and defendant Montgomery’s position as a
Classification Worker did not grant them the authority to unilaterally transfer plaintiff.
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The record further reflects that defendants Butterworth and Montgomery and the third
committee member presiding over the September 10, 2014 Administrative Segregation Hearing
released plaintiff to the general population not only after plaintiff requested such an action, but also
after taking into consideration that plaintiff had no declared enemies in general population. An
enemy waiver was signed on April 9, 2014 by plaintiff and inmate Banks declaring “we are not
enemies.”
Plaintiff has not alleged or submitted any evidence to show that he made a request to
defendant Butterworth, defendant Montgomery, or any other prison officials that he desired to retract
the April 9, 2014 enemy waiver with inmate Banks or that it was official ERDCC policy to have
enemy waivers signed before release into the general population. Moreover, plaintiff testified that
even if defendants Butterworth or Montgomery automatically supplied him with an enemy waiver
form, he would not have signed it, thus making the alleged failure to present a waiver irrelevant.
Finally, plaintiff has not submitted any evidence to show that an assignment to a single-man
cell would have prevented future altercations with inmate Banks, who was not his cell mate. Thus,
the Court cannot find that defendants Butterworth or Montgomery were aware of facts from which
he could infer the existence of a substantial risk of serious harm.
The Court therefore concludes summary judgment should be granted in favor of defendants
as to plaintiff’s claims against defendants Butterworth and Montgomery.
4. Defendant Terry Russell
Plaintiff alleges that defendant Russell had notice of plaintiff’s risk of serious harm, but
failed to utilize his administrative authority to protect him from assault by Banks. Plaintiff claims
that defendant Russell’s failure to act violated his Eighth Amendment rights.
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Attached to plaintiff’s additional statement of facts are two letters he allegedly wrote to
defendant Russell. In the first letter, dated June 30, 2014, plaintiff requested transfer to another
institution because of death threats he received from “different gangs.” In the second letter, dated
August 28, 2014, plaintiff requested transfer to another institution due to fear that his life was in
danger because inmates believed him to be a “rat.” Neither of the letters contained any facts that
plaintiff felt threatened by or wanted to remain separate from inmate Banks.
Plaintiff testified at deposition that he did not personally send the letters via the institutional
mail system because he was on administrative segregation, but that he gave them to a guard to
deposit. Defendant Russell testified at deposition that he did not recall seeing those two letters, but
also testified there had never been a time when he received a letter from an inmate who reported that
their life was in danger that he did not forward the letter to an investigator or otherwise take action.
“[T]hreats between inmates are common and do not, under all circumstances, serve to impute
actual knowledge of a substantial risk of harm.” Jones v. Wallace, 641 F. App'x 665, 666 (8th Cir.
2016) (unpublished per curiam) (quoting Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996)). An
inmate’s complaints of “general fear for his safety” do not establish that a defendant “acted with
deliberate indifference by not placing him in protective custody” or initiating an immediate transfer.
Id. (quoting Robinson v. Cavanaugh, 20 F.3d 892, 895 (8th Cir. 1994)).
Assuming that defendant Russell received and read plaintiff’s letters, there is no evidence
that he disregarded a serious risk of harm. The record reflects that on the dates both letters were
allegedly submitted to defendant Russell, plaintiff was in protective custody and not in the general
population. Moreover, despite plaintiff’s claims that he was receiving death threats, the record
reflects no attempt by plaintiff to place specific inmates on his enemy list to ensure separation.
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Thus, on June 30, 2014 and August 28, 2014, it would have been reasonable for defendant Russell
to believe that plaintiff was not subject to a serious risk of harm from assault by other inmates.
The Court therefore concludes summary judgment should be granted in favor of defendants
as to plaintiff’s claims against defendant Russell.
IV.
Conclusion
For the foregoing reasons, plaintiff’s claims against defendant Moore will be dismissed
without prejudice for failure to exhaust administrative remedies, and the other defendants’ motion
for summary judgment will be granted.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s claims against defendant Kathy Moore are
DISMISSED without prejudice for failure to exhaust administrative remedies.
IT IS FURTHER ORDERED that defendants Terry Russell, Diane Montgomery, David
Vandergriff, Alan Butterworth, Stacey Halton, and Michele Basham motion for summary judgment
is GRANTED. [Doc. 54]
An appropriate order of partial dismissal and judgment will accompany this Memorandum
and Order.
__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 7th day of January, 2019.
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