Garrett v. St. Louis County Justice Center et al

Filing 46

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Herbert L. Bernsen's Motion to Dismiss (Doc. 28 ) is GRANTED. Plaintiff shall amend his complaint within fourteen (14) days of this order. (Amended/Supplemental Pleadings due by 2/19/2018.) Signed by Magistrate Judge Noelle C. Collins on February 5, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DWAYNE GARRETT,
Plaintiff,
v.
HERBERT L. BERNSEN,
in his official capacity,
Defendant.

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Case No. 4:17-cv-00232-NCC

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Herbert L. Bernsen’s Motion to Dismiss
(Doc. 28). The motion is fully briefed and ready for disposition. The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
636(c)(1) (Doc. 39). For the following reasons, Defendant’s Motion will be GRANTED.
I. Legal Standard for a Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Federal Rule of Civil Procedure 12(b)(6) provides
for a motion to dismiss based on the “failure to state a claim upon which relief can be granted.”
To survive a motion to dismiss a complaint must show “ ‘that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly,
550 U.S. at 556). The pleading standard of Rule 8 “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “When ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained
in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). All reasonable inferences from
the complaint must be drawn in favor of the nonmoving party. Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 1999).
II. Background
On January 19, 2017, pro se Plaintiff Dwayne Garrett (“Plaintiff”)1 filed a Complaint
pursuant to 42 U.S.C. § 1983, a “Motion for Injunctive Relief and Counsel,” and a “Motion for
Counsel” (Docs. 1, 4, 5). On March 7, 2017, the Honorable Carol E. Jackson granted Plaintiff’s
request for counsel and directed the Clerk of Court to appoint counsel pursuant to the Plan for
the Appointment of Pro Bono Counsel (Doc. 8). Judge Jackson also denied Plaintiff’s motion
for injunctive relief in which he requested to be moved to a federal prison, without prejudice, in
light of the appointment of counsel (Doc. 9). On May 15, 2017, Plaintiff, with the assistance of
newly appointed counsel, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 against
Defendant Herbert L. Bernsen (“Defendant”) in his official capacity only for failure to protect
(Count I) and deliberate indifference to serious medical needs (Count II) (Doc. 23). Defendant
Bernsen is the Director for the St. Louis County Department of Justice Services, the organization
responsible for the management, operation, and security of the Saint Louis County Justice Center
(the “Justice Center”) (Id.). Plaintiff indicates that:
A reasonable opportunity for further investigation and discovery will likely reveal
evidentiary support for claims against other defendants, namely, Justice Center staff
member(s) in their individual capacity(ies) for failure to protect Plaintiff and for
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Plaintiff’s counsel refers to Plaintiff using male pronouns and indicated during the Rule 16
Conference that this was Plaintiff’s preference. As such, the Court will refer to Plaintiff using
male pronouns.
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deliberate indifference to his serious medical needs, in violation of Plaintiff’s rights under
the Eighth and Fourteenth Amendments to the United States Constitution.
(Id. at ¶5 n.1). As of today’s date, Plaintiff has not filed an amended complaint and the time to
so under the Case Management Order has expired (See Doc. 44).
The facts, in the light most favorable to Plaintiff, are as follows. On October 12, 2016,
Plaintiff began his period of incarceration at the Justice Center (Doc. 23 at ¶6). During intake,
Plaintiff informed the intake officials including a nurse and an officer on duty that he is a
homosexual transgender person who receives female hormone therapy and has breasts (Id. at ¶7).
He further informed the intake officials that due to his sexual identity and physical traits, the
facility should be mindful of his safety and careful in selecting his cellmate (Id.). However, on
October 13, 2016, booking officers placed Plaintiff with a cellmate who was exhibiting plainly
observable behavioral abnormalities (Id. at 8). Such abnormalities included pacing his cell in the
nude, and lifting up Plaintiff’s bed covers to look for a cellular phone despite a clear restriction
on cellular phones in the facility (Id.).
That same day, Plaintiff was permitted to briefly leave his cell and go to a common area
(Id. at ¶9). While there, Plaintiff told the officer on watch that he was fearful of his safety due
his cellmate’s strange behavior (Id.). The officer told Plaintiff that the Justice Center does not
change cellmate assignments for the “convenience” of the inmates (Id.). He instructed Plaintiff
to return to his cell (Id.).
That night, Plaintiff’s cellmate woke him up and attempted to force him to perform oral
sex (Id. at ¶10). When Plaintiff refused, the cell mate violently assaulted Plaintiff, sodomized
him with a travel-sized shampoo bottle, and raped him (Id.). Afterward, Plaintiff was bleeding
from his rectum (Id. at ¶11). Plaintiff used a towel to clean himself and changed out of his
bloodied boxers and pants into a clean uniform (Id.).

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Although the Justice Center has a policy requiring officers to monitor inmate activities at
night by patrolling the halls surrounding inmate cells and pushing buttons, that night officers
were socializing in a rotunda outside the cellblock (Id. at ¶¶12-13). Consistent with prior
practice, officers only rushed back into the cellblock to push the buttons when required, and then
returned to the rotunda to socialize (Id. at ¶13).
After the incident, Plaintiff’s cellmate pushed a call button to summon an officer under
the pretext that he needed to see his girlfriend (Id. at ¶15). Once an officer arrived, Plaintiff
immediately reported to the officer that he had just been raped by his cellmate and needed
medical attention (Id. at ¶16). Plaintiff pleaded with the officer to remove him from the cell but
the officer refused (Id.). Plaintiff, in an effort to be removed, told the officer he was suicidal,
causing the officer to remove Plaintiff from the cell and strap him to a metal chair (Id. at ¶¶1718). The officer then threatened Plaintiff, telling Plaintiff that he would wish he had simply
stayed in his cell (Id. at ¶18).
Approximately twenty minutes later, a nurse arrived (Id. at ¶19). Plaintiff explained to
the nurse that he was not suicidal but had just been sexually assaulted and was bleeding from his
rectum (Id.). The nurse told Plaintiff that because Plaintiff reported the he was suicidal, Justice
Center procedure prohibited Plaintiff from returning to his cell until a psychologist could
examine him (Id. at ¶20). Nonetheless, the nurse allowed Plaintiff to return to his cell (Id.).
When Plaintiff returned to his cell, his cellmate was gone, along with the bloody items that had
been in the cell (Id. at ¶21).
That evening, Plaintiff filled out a grievance form reporting the sexual assault and
resulting medical needs (Id. at ¶22). Because Plaintiff never received a response to his
grievance, Plaintiff submitted a written appeal to Defendant Bernsen and also wrote Defendant
Bernsen letters about the assault and his medical needs (Id. at ¶¶23-24). Plaintiff never received
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a response from Defendant Bernson (Id. at ¶25).
In the ensuing weeks, Plaintiff made complaints to Justice Center officials about his
sexual assault and rectal injuries, including via sick call forms, grievances, and verbal
communications (Id. at ¶26). However, Justice Center officials, including a physician,
repeatedly disregarded Plaintiff’s complaints (Id. at ¶¶27-28, 30). The physician refused to treat
Plaintiff’s injuries and instead simply wrote him a prescription for Zoloft, an antidepressant (Id.
at ¶29). To prevent his bleeding from seeping through his clothing, Plaintiff was forced to stuff
toilet paper in his underwear for weeks (Id. at ¶31). Plaintiff began to request medical attention
for rectal pain without referencing the sexual assault because Justice Center officials ignored
Plaintiff’s requests for medical attention (Id. at ¶32). Finally, in December 2016, medical staff
provided sanitary pads to Plaintiff to prevent the rectal bleeding from seeping through Plaintiff’s
clothing (Id.).
In January 2017, Plaintiff was finally transported to St. Louis University Hospital
(“SLU”) for further treatment relating to rectal bleeding (Id. at ¶40). SLU medical staff
identified a trauma induced lesion in Plaintiffs rectum that had not healed correctly (Id.). As a
result, Plaintiff needs to undergo further examination under anesthesia and surgery to prevent his
injuries from worsening (Id.). Plaintiff has repeatedly inquired about his next SLU appointment
date, but he has not been provided with a date (Id. at ¶41).
On June 2, 2017, Defendant Bernsen filed a Motion to Dismiss asserting that Plaintiff
does not allege that Defendant was personally involved in the alleged unconstitutional behavior
and that the doctrine of respondeat superior cannot be the basis of liability in a section 1983
action (Doc. 28 at 1). Defendant further asserts that Plaintiff fails to allege sufficient facts to
establish that his alleged injuries were a result of an official policy or unofficial custom (Id.). In
his response to the motion, Plaintiff indicates that he does not seek to bring this case under a
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respondeat superior theory of liability but instead pleads that Defendant Bernsen is liable
pursuant to Monell municipal liability theory because Plaintiff’s injuries were a result of the
Justice Center’s custom, policy, or practice to (1) fail to ensure the safety and physical wellbeing
of inmates and (2) fail to treat the serious medical needs of inmates (Doc. 32 at 10). Monell v.
Dep’t of Social Services, 436 U.S. 658 (1978). As such, the Court will address only the Monell
liability issue.
III. Analysis
When a state or municipal official is sued in his official capacity, the claim is treated as a
suit against the entity itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). In Monell, the
Supreme Court established that an entity may be sued under section 1983 where “the action that
is alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated” by the entity. 436 U.S. at 690.
Although Plaintiff need not identify the specific unconstitutional policies at this stage, he must,
at the very least, allege facts that would support the existence of an unconstitutional policy or
custom. See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).
The Court finds that Plaintiff has not sufficiently alleged facts which would support the
existence of an unconstitutional official policy or unofficial custom to establish Monell liability
under section 1983. While Plaintiff asserts several instances where he may have been
unconstitutionally harmed by individuals potentially acting in accordance with or in violation of
a policy or custom, Plaintiff only identifies one specific practice in violation of a policy that
could be linked to a constitutional harm. Plaintiff alleges, in violation of protocol requiring
correctional officers to push buttons that are intermittently placed along the path that officers
must patrol in the cellblock, officers congregate and socialize in a rotunda outside the cellblock,
do not monitor the cells, and, when it is time to push a button, one officer rushes back into the
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cellblock to push it and then returns to the rotunda (Doc. 23 at ¶13). A reasonable inference, in
the light most favorable to Plaintiff, is that this custom, a violation of an explicit policy designed
to require frequent monitoring of the cells, resulted in the failure to protect Plaintiff from being
raped by his cellmate. However, even reviewing this claim in the light most favorable to
Plaintiff, these allegations remain too threadbare to survive a motion to dismiss. Furthermore,
Plaintiff has indicated a willingness to amend his complaint. For example, in his Amended
Complaint Plaintiff pleads that discovery will reveal “that there is and has been a custom, policy,
or practice” to: (1) “fail to ensure the safety and physical wellbeing of inmates at the Justice
Center,” and (2) “fail to treat the serious medical needs of inmates at the Justice Center” (Doc.
23 at ¶¶48, 59). Plaintiff also indicates that he intends to bring additional claims potentially
against other parties (Id. at ¶5 n.1). Accordingly, the Court will grant Defendant’s motion but, in
the interests of justice, grant Plaintiff leave to amend his complaint.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant Herbert L. Bernsen’s Motion to Dismiss
(Doc. 28) is GRANTED. Plaintiff shall amend his complaint within fourteen (14) days of this
order.
Dated this 5th day of February, 2018.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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