Belanus v. Dutton et al

Filing 118

ORDER denying 70 Motion for Protective Order; granting in part and denying in part 76 Motion for Summary Judgment; denying 81 Motion for Sanctions; granting in part and denying in part 83 , 100 Motions to Compel; denying 85 , 87 , 89 Motions for for Adverse Jury Instructions; denying 101 Motion for Contempt; denying 114 Motion for Declaratory Judgment. Defendants Grimmis, Shanks, and Gilbertson are DISMISSED. Signed by Judge Dana L. Christensen on 3/23/2017. Mailed to Belanus. (TAG)

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

MAR 23 2017

us· District C
.
·
CV 12-00065-H-DL~triM·ct.of Montan:urt
Clerk

D '

DUANE RONALD BELANUS,

1ssouJa

Plaintiff,
ORDER

vs.
SHERIFF LEO DUTTON, et al.,
Defendants.

Defendants filed a motion for summary judgment seeking judgment on all
claims in their favor. (Doc. 76.) Plaintiff Duane Belanus opposes the motion and
has filed the following motions: Motion for Protective Order (Doc. 70); Motion
for Sanctions (Doc. 81); Motions to Compel (Doc. 83, 100); Motions for Adverse
Jury Instructions (Docs. 85, 87, 89); Motion for Contempt or to Comply
Compliance (Doc. 101); and Motion for Declaratory Judgment (Doc. 114).
Defendants' Motion for Summary Judgment (Doc. 76) will be granted as to
Count VI (failure to train corporal), Count VII (failure to train corporal), Count
VIII (failure to train corporal), Count XII (failure to investigate), and Count XIV
(denial of medical care). Defendants Grimmis, Shanks, and Gilbertson will be
dismissed. The motion for summary judgment will be denied as to all other claims
and Defendants.
1

Mr. Belanus' s motions will be denied, except his motion to comply which
will be granted in part and denied in part.

I.

MOTION FOR SUMMARY JUDGMENT
A. Standard
Summary judgment is appropriate when the moving party "shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a). Under summary judgment practice,
" [t ]he moving party initially bears the burden of proving the absence of a genuine
issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving
party may accomplish this by "citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials" or by showing that such
materials "do not establish the absence or presence of a genuine dispute, or that
the adverse party cannot produce admissible evidence to support the fact." Fed. R.
Civ. P. 56(c)(l)(A), (B).
"Where the non-moving party bears the burden of proof at trial, the moving
party need only prove that there is an absence of evidence to support the
2

non-moving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477
U.S. at 325); see also Fed. R. Civ. P. 56(c)(l)(B). Indeed, summary judgment
should be entered, "after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden
of proof at trial." See Celotex, 477 U.S. at 322. "[A] complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders
all other facts immaterial." Id. at 323. In such a circumstance, summary judgment
should be granted, "so long as whatever is before the district court demonstrates
that the standard for entry of summary judgment, as set forth in Rule 56(c), is
satisfied." Id.
If the moving party meets its initial responsibility, the burden then shifts to
the opposing party to establish that a genuine issue as to any material fact actually
does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). In attempting to establish the existence of this factual dispute, the
opposing party may not rely upon the allegations or denials of its pleadings but is
required to tender evidence of specific facts in the form of affidavits, and/or
admissible discovery material, in support of its contention that the dispute exists.

See Fed. R. Civ. P. 56(c)(l); Matsushita, 475 U.S. at 586 n.11. Moreover, "[a]
3

plaintiffs verified complaint may be considered as an affidavit in opposition to
summary judgment if it is based on personal knowledge and sets forth specific
facts admissible in evidence." Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir.
2000) (en bane). The opposing party must demonstrate that the fact in contention
is material, i.e., a fact "that might affect the outcome of the suit under the
governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T. W.

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass 'n, 809 F .2d 626, 630 (9th Cir.
1987), and that the dispute is genuine, i.e., "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson, 447 U.S. at 248.
"In evaluating the evidence to determine whether there is a genuine issue of
fact," the court draws "all inferences supported by the evidence in favor of the
non-moving party." Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966
(9th Cir. 2011). But it is the opposing party's obligation to produce a factual
predicate from which the inference may be drawn. Richards v. Nielsen Freight

Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue,
the opposing party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586
(citations omitted).
Rule 56(d) of the Federal Rules of Civil Procedure provides:
4

If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
( 1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
To prevail on a Rule 56(d) request, a party must make "(a) a timely
application which (b) specifically identifies (c) relevant information, ( d) where
there is some basis for believing that the information sought actually exists."

Emp'rs Teamsters Local Nos. 175 & 505 Pension Trust Fundv. Clorox Co., 353
F.3d 1125, 1129 (9th Cir. 2004) (citation omitted). "The burden is on the party
seeking additional discovery to proffer sufficient facts to show that the evidence
sought exists, and that it would prevent summary judgment." Id. at 1129-30
(citation omitted). A district court may "deny[] further discovery ifthe movant
has failed diligently to pursue discovery in the past, or if the movant fails to show
how the information sought would preclude summary judgment." Id. at 1130
(citation omitted).
By notice provided July 22, 2016 (Doc. 79), Mr. Belanus was advised of the
requirements for opposing a motion brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. See Rand v. Rowland, 154 F .3d 952, 957 (9th Cir. 1998)
(en bane); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
5

B. Facts 1
On August 3, 2008, Mr. Belanus was arrested and charged with kidnaping,
rape, inflicting bodily injury during a rape, tampering with evidence of the rape,
burglary, and theft. State v. Belanus, 357 Mont. 463, 240 P.3d 1021 (Mont. 2010).
He was convicted of these charges on June 12, 2009. (Statement of Undisputed
Facts ("SUF"), Doc. 78 at~ 4.) He was incarcerated at the Lewis and Clark
County Detention Center ("LCDC") from August 3, 2008 until August 13, 2009.
(Complaint, Doc. 1 at 9.)
Upon entry into LCDC, Mr. Belanus was placed in Pod 6 with other inmates
with similar charges. (Complaint, Doc. 1 at 9; Statement of Disputed Facts
("SDF"), Doc. 105 at 115.) Pod 6 is a general population unit at LCDC which has
been used to segregate inmates although it is not designated as such. (SUF at ~ 3.)
Mr. Belanus was housed in Pod 6 from August 4, 2008 until September 30, 2008
when he was moved to the library floor because Pod 5 at the jail was over
crowded. He was moved back to Pod 6 on October 7, 2008 but had to go back to
the library on October 17, 2008 again due to overcrowding of the women's pod.
He was returned to Pod 6 on October 21, 2008 but was moved to Pod 1 on

1

The Court has considered the facts in the light most favorable to Mr. Belanus. Walls,
653 F .3d at 966.

6

November 24, 2008. He was returned to the library again on November 27, 2008
and returned to Pod 6 on November 29, 2008 where he remained until February 3,
2009 when he was moved to Pod 1 where he was housed until the incident at issue
occurred on July 11, 2009. (Movement Sheet, Doc. 78-3.)
On or about May 18, 2009, another inmate, Daniel Hartford, was attacked in
Pod 6 because he was a sex offender. Two inmates were charged with assault as a
result of this incident. (Doc. 105-15 at 1-14.)
While Mr. Belanus was housed in Pod 1, Inmate Travis Demichelis was
housed in Pod 2 and regularly harassed and threatened Mr. Belanus through the
glass between pods. Inmate Demichelis would yell profanities and get others
involved with his taunts and threats of injury. Mr. Belanus contends that rumors
quickly spread around LCDC that he was in jail for a sex-crime.
On the evening of July 11, 2009, Officer Becky Hawthorne arrived at Pod 1
to escort Mr. Belanus from Pod 1 to the nurses' station. (SUF at if 5, SDF 5, Doc.
105 at 117.) During the medication pass, Mr. Belanus told Officer Hawthorne that
"a girlfriend of someone in Pod 2 had called the jail and found out why he was
here." (SUF at if 37.) While at the nurses' station, Mr. Belanus told Officer
Hawthorne, Officer Brian Merritt, and two other LCDC employees that the LCDC
staff member who had been at his criminal trial had been talking with inmates in
7

Pods 2, 3, and 4 for an extended period of time and after that Mr. Belanus started
receiving threats from those pods. 2 Mr. Belanus told the officers he had been
receiving threats of harm and death, other inmates shouted derogatory names at
him and notes were being passed between pods about him. He also explained that
Brian Olson and Nick England (other inmates in Pod 1 with Mr. Belanus) came
into his cell and starting making comments about his alleged charges. He stated
he was afraid to return to his pod because everyone had distanced themselves from
him and Olson and England were acting noticeably different and hateful toward
him. (SDF, Doc. 105 at 148-150.) In response to his concerns Officer Hawthorne
told him "If something was going to happen, it would've happened by now.
You're going back to the pod." (Doc. 105 at 86.)
Mr. Belanus contends that while Officer Hawthorne was taking Mr. Belanus
to and from the nurses' station, at least four inmates from Pod 2 were yelling,
threatening, and laughing at Mr. Belanus. In addition, inmates from Pods 3 and 4
were hitting the windows and doors while yelling obscenities. (Doc. 105 at 125126.) Officer Hawthorne admits that as she and Mr. Belanus were passing the
door to Pod 2, Demichelis was standing by the Pod 2 door, yelling threats at Mr.

2

An unsigned handwritten note apparently written by another inmates was found in Pod 2
and stated: "we set [sic] in here with one of the Corprals [sic] for at least 40 minuts [sic] talking
about it two days ago." (SUF at if 36.)

8

Belanus. Officer Hawthorne responded by telling Demichelis to be quiet and
move away from the door. (SUF at~ 11.) Officer Hawthorne was aware that the
doors to Pod 1 and Pod 2 were both locked and Demichelis did not have physical
access to Mr. Belanus. (SUF

at~

12.)

On the way back to Pod 1, Officer Hawthorne told Mr. Belanus to remain in
his cell if he feared for his safety and she would deal with the situation after
medication pass. (SUF at ~ 1O; SDF, Doc. 105 at 131 ~ 17.) Officer Hawthorne
contends she also told Mr. Belanus to lock himself in his cell. (SUF at~ 9.)
Individual cell doors in LCDC pods lock automatically when closed. Once
locked, they can only be opened by the control officer or by a detention officer
with a key. Detainees can communicate with the control officer by way of an
intercom located in the cell. (SUF at~ 14.) Detainees at LCDC are allowed to
lock themselves in their own cells during hours when general lockdown is not in
effect, and frequently do so. (SUF

at~

15.)

Mr. Belanus claims he could not lockdown in his cell because he had been
ordered to keep his cell door open so inmates housed on the floor could use the
bathroom. (Doc. 105 at 89, 129.) Captain Grimmis confirms that while inmates
generally have the freedom to lock their individual cell doors, there is an
exception that, during lockdown, one cell door in the pod may need to be left open

9

to allow inmates housed on the floor to use the toilet. (Grimmis Aff., Doc. 78-17
at 2, 'if 5.)
Mr. Belanus did not lockdown in his cell when he returned from the nurses'
station. Instead, he called his parents and his pastor from a phone in the common
area of Pod 1 and then went to his cell but left the door unlocked. (SUF at 'if 18.)
At approximately 10:30 p.m., Inmates Olson and England went into Mr.
Belanus's cell and assaulted him. (SUF at 'if 19, Merritt Report Narrative, Doc. 788 at 1.) The assault eventually moved from Mr. Belanus's cell to the common area
where it was observed by Officer Merritt, the control officer on duty that evening.
(SUF at 'if 20.) Mr. Belanus alleges the assault lasted until 10:36 when LCDC staff
arrived to stop the assault.
Officer Merritt alerted Officer Hawthorne about the fight and Officer
Hawthorne and another LCDC employee responded to Pod 1 to intervene. The
detention officers separated Inmate Olson and Mr. Belanus. Officer Hawthorne
took Mr. Belanus to his cell while the other officers restrained Inmate Olson.
(SUF at 'if 22.) Adam Shanks and another police officer arrived to assist. They left
once the fight was broken up. (SUF at 'if 23.)
According to a LCDC report narrative (Doc. 78-8 at 1), the assault occurred
at 10:34 p.m .. EMTs arrived at 10:44 p.m. At 10:50 p.m., Mr. Belanus was
10

escorted from Pod 1 to booking and housed in the PC cell and evaluated by
paramedics. The EMTs determined Mr. Belanus's injuries were not life
threatening and did not require them to transport him to the hospital. (SUF ~ 24;
SDF ~ 24, Doc. 105 at 135-136.) The EMTs left LCDC at 11 :02 p.m. but returned
to LCDC at 12:54 a.m. to reevaluate Mr. Belanus. They determined from their
second quick assessment that Mr. Belanus's injuries were not life threatening and
did not require them to transport Mr. Belanus to the hospital. The ambulance left
LCDC at 1:03 a.m. Due to Mr. Belanus's continued complaints of severe pain,
Deputy Vance Lavender transported Mr. Belanus to the hospital. (Merritt Report,
Doc. 78-8; SDF, Doc. 105 at 136-137.)
St. Peter's Hospital staff diagnosed Mr. Belanus with a "mild kidney
contusion" and a "laceration of his lower lip, 2 cm in total length repaired with a
single layer ofVicryl sutures." (Emergency Room Note, Doc. 78-10 at 2.) Mr.
Belanus returned to LCDC at 5:44 a.m. (Merritt Report, Doc. 78-8 at 2.)
Although Inmates Olson, England, and Demichelis were held jointly and
severely liable for Mr. Belanus' s medical costs resulting from the assault (SUF at
~

28), Mr. Belanus has received collection notices for the medical costs resulting

from the assault (Doc. 105 at 139, ~ 29). As part of his criminal conviction, Mr.
Belanus was ordered to pay $4,070. 72 restitution for the medical costs he incurred
11

while he was incarcerated that were not the result of the actions of other inmates.
(Doc. 78-5 at 4.)

C. Allegations
The remaining Defendants in this action are Sheriff Leo Dutton, Lewis &
Clark County, Captain Jason Grimmis, D.O. Becky Hawthorne, D.O. Brian
Merritt, Sgt. Laurel Bulson, Sgt. Clair Swain, Sgt. Scott Ferguson, Sgt. Timothy
West, Sgt. Eric Gilbertson, and Officer Adam Shanks.
Liberally construed, Mr. Belanus alleges Defendants Dutton, West, Swain,
Bulson, Ferguson, and Lewis and Clark County failed to protect him from other
inmates when they placed him in a general population cell as a result of
overcrowding at LCDC. (Amd. Cmplt, Doc. 5, Counts I, II, IV.)
He also claims Defendants Dutton, West, Bulson, Ferguson, and Swain
failed to train and/or supervise the unnamed corporal who allegedly disclosed the
details of Mr. Belanus's criminal trial to other inmates. (Amd. Cmplt, Doc. 5,
Counts VI, VII, VIII, Doc. 5 at 12-14.)
Mr. Belanus alleges Defendants Hawthorne, Shanks, Gilbertson, and Merritt
failed to protect him on July 11, 2009 when they put him back on Pod 1 despite
him telling them he believed he would be assaulted. (Amd. Cmplt., Count IX,
Doc. 5 at 15.) He alleges Defendants Ferguson, Bulson, Swain, West, and Dutton
12

failed to train and supervise these Defendants and failed to implement procedures
to avoid the assault. (Amd. Cmplt., Counts X, XI, Doc. 5 at 16-17.)
Mr. Belanus also claims that Defendant Grimmis minimized his injuries and
failed to record "oral confessions." (Amd. Cmplt., Count XII, Doc. 5 at 18.)
In his last claim, Mr. Belanus alleges Lewis and Clark County was
deliberately indifferent to his serious medical needs because they have a practice
of ignoring medical needs for several hours to keep medical costs down. (Amd.
Cmplt., Count XIV, Doc. 5 at 20.)
The City of Helena and the State of Montana were dismissed from this
action on January 12, 2015. (Doc. 4.) As such, Counts III, XV, XVIII and XIX
which were only brought against these Defendants will not be addressed.
Similarly, the Court will not address claims raised against unnamed defendants.
Those individuals have never been identified, they have not been served, and they
are not parties to this action. These include Counts V, XIII and XVI.

D. Analysis
Mr. Belanus, at the time of the assault, had been convicted but had not yet
been sentenced. In Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000), the Ninth
Circuit held that a convicted but unsentenced prisoner should be treated as a
sentenced inmate and not a pretrial detainee. Accordingly, Mr. Belanus's
13

allegations are properly considered under the Eighth Amendment standard, rather
than the Fourteenth Amendment, which applies to pretrial detainees. See Bell v.
Wolfish, 441 U.S. 520 (1979).
The Court will first address the individual liability claims, then the
supervisory liability claims, and finally the municipal liability claims brought
against Lewis and Clark County.
1. Individual Liability
a. Failure to Protect

Prison officials have a duty under the Eighth Amendment to protect
prisoners from violence at the hands of other prisoners because being violently
assaulted in prison is simply not part of the penalty that criminal offenders pay for
their offenses against society. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)
(quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009);
Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005).
The failure of a prison official to protect inmates from attacks by other
inmates or from dangerous conditions at the prison violates the Eighth
Amendment only when two requirements are met: (1) the objective
component-the deprivation alleged must be sufficiently serious, and (2) the
subjective component-the prison official must possess a sufficiently culpable
14

state of mind. Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501U.S.294, 298
(1991). For a failure to protect claim, the"sufficiently serious" requirement is
satisfied by showing the existence of "conditions posing a substantial risk of
serious harm." Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 33-34
(1993). "The objective question of whether a prison officer's actions have
exposed an inmate to a substantial risk of serious harm is a question of fact, and as
such must be decided by a jury ifthere is any room for doubt." Lemire v.

California Dep 't of Corr. & Rehab., 726 F.3d 1062, 1075-76 (9th Cir. 2013)
(citation omitted).
To meet the subjective component, a prisoner must establish that prison
officials were "deliberately indifferent" to serious threats to the inmate's safety.

See Farmer, 511 U.S. at 834. A prison official can be held liable under the Eighth
Amendment for failing to guarantee the safety of a prisoner if they know of and
disregard an excessive risk to an inmate's health or safety. See Farmer, 511 U.S.
at 83 7. 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. See id. Deliberate indifference describes a state of mind more
blameworthy than negligence. See Farmer, 511 U.S. at 835 (citing Estelle, 429
U.S. at 104). Neither negligence nor gross negligence will constitute deliberate
15

indifference. See Farmer, 511 U.S. at 835-36 & n. 4; see also Estelle, 429 U.S. at
106 (establishing that deliberate indifference requires more than negligence).
Deliberate indifference can be established by demonstrating that a defendant
disregarded evidence of a specific threat to the plaintiff or if the plaintiff was
assaulted as a result of prison conditions or practices that are dangerous to all
prisoners or to any identifiable groups of prisoners. As set forth in Farmer,
The question under the Eighth Amendment is whether prison
officials, acting with deliberate indifference, exposed a prisoner to a
sufficiently substantial risk of serious damage to his future health and
it does not matter whether the risk comes from a single source or
multiple sources, any more than it matters whether a prisoner faces an
excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk.

Framer, 511 U.S. at 843. To prove knowledge of the risk, the prisoner may rely
on circumstantial evidence; in fact, the very obviousness of the risk may be
sufficient to establish knowledge. Farmer, 511 U.S. at 842.
In light of the information which Mr. Belanus claims he provided to
Officers Merritt and Hawthorne, there is a genuine issue of material fact whether
they were deliberately indifferent to Mr. Belanus's safety. Assuming the facts in
the light most favorable to Mr. Belanus, he told Officers Hawthorne and Merritt
that the LCDC staff member who had been at his criminal trial had been talking
with inmates in other pods and after that he started receiving threats from those
16

pods, that he had received threats of harm and death, that inmates shouted
derogatory names at him, and that inmates were passing notes about him. He told
them that Inmates in his housing Pod, Olson and England, came into his cell that
day and starting making comments about his charges. Lastly, he explained to
them how afraid he was to return to his pod because everyone had distanced
themselves from him and his future attackers were acting noticeably different and
hateful toward him. (SDF, Doc. 105 at 148-150.)
Although Officer Hawthorne testified she told Mr. Belanus to lock down,
Mr. Belanus disputes this statement. He contends Officer Hawthorne only told
him to remain in his cell but he could not lock down because he was required to
keep his cell door open to allow inmates housed on the floor to use the bathroom.
He raised this allegation in his Amended Complaint (Doc. 5 at 26) and it was not
disputed by Defendants. Thus, there is an issue of fact regarding whether Mr.
Belanus was told to lockdown and whether he was allowed to lock down in light
of the alleged requirement that he keep his cell door open. Defendants argue that
"any reasonable person in Belanus's position - and in Defendant Hawthorne's
position - would have interpreted [Hawthorne's] comments as instructions to
Belanus to lock himself in his cell until Defendant Hawthorne could assess the
threat against him." (Doc. 112 at 3.) But this is an issue of fact that must be
17

decided by a jury.
Defendants argue that the fact that Officer Hawthorne said "If something
was going to happen, it would've happened already" demonstrates that Officer
Hawthorne did not appreciate the risk. But again, given the information that Mr.
Belanus says he conveyed to the officers, putting Mr. Belanus back on the pod
assuming he could not lock himself in his cell for protection raises a question of
fact whether Officers Hawthorne and Merritt were deliberately indifferent.
Construing the facts in the light most favorable to Mr. Belanus, there is a
genuine issue of material fact regarding whether Defendants Hawthorne and
Merritt were aware of a specific threat to Mr. Belanus' s safety and whether they
took sufficient precautions to protect him. The Court rejects Defendants'
contention that they are protected by qualified immunity. The doctrine of
qualified immunity protects government officials "from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). It was clearly established in July 2009 that
a prison official's failure to respond to known, credible threats to an inmate's
safety constitute a violation of the inmate's Eighth Amendment rights. See
Farmer, 511 U.S. 825; Chandler v. Williams, 2013 WL 2489139 (D.Or 2013);
18

Rodriguez v. Sect'y for Dep't of Corr., 508 F3d 611, 617 n12 (11th Cir. 2007)
(gang-related threats explicitly reported to prison officials presented a substantial
enough risk of harm to trigger an Eighth Amendment duty to act); Odom v. S.

Carolina Dep't of Corr., 349 F3d 765, 770 (4th Cir. 2003) (inmate-on-inmate
assault resulting in significant physical injury, preceded by reported death threats,
was sufficiently substantial for Eighth Amendment purposes); Miller v. Kastelic,
601 Fed.Appx. 660 (10th Cir. 2015); Schofieldv. Hopkins, 491 Fed.Appx. 772,
774 (8th Cir. 2012) (finding that inmate sufficiently stated a failure to protect
claim against officer who managed the laundry department because other inmate's
threat to harm the plaintiff had been reported to the officer); Young v. Selk, 508
F.3d 868, 870-73 (8th Cir. 2007) (discussing potential for substantial risk where
inmate told officials of cellmate's threats, requested to be removed from cell
immediately, said it was an emergency, and was subsequently attacked).
Mr. Belanus has not however, presented sufficient evidence that Defendants
Shanks or Gilbertson violated his Eighth Amendment rights. Adam Shanks is a
Police Officer with the Helena Police Department. He is not an employee of
Lewis and Clark County and has no supervisory or policy making authority. He
responded when he was notified of the assault but was only on the scene for ten
minutes following the incident. He did not speak to any inmates about the assault.
19

(SUF at~ 38.) Mr. Belanus does not dispute this evidence. There is no basis for
liability against Officer Shanks.
There is no evidence that Sgt. Eric Gilbertson was at the medical station
when Mr. Belanus expressed concerns for his safety. The only evidence of Sgt.
Gilbertson's involvement is an arrest report which indicates that he was involved
in holding Inmate Olson down after the incident and that he escorted Mr. Belanus
out of Pod 1 after the assault. (Doc. 1-1 at 3.) There is no evidence of deliberate
indifference on the part of Sgt. Gilbertson and he will be dismissed.

b. Failure to Investigate
Mr. Belanus alleges Captain Grimmis violated his rights under the
Fourteenth Amendment due process clause and the equal protection clause. (Doc.
104 at 49-50). Specifically, he alleges Captain Grimmis minimized his injuries,
failed to properly investigate the incident, and failed to record "oral confessions."
(Amd. Cmplt., Count XII, Doc. 5 at 18.) Defendants contend the evidence was not
maintained after criminal convictions were obtained for the inmates responsible
for the assault. Mr. Belanus seeks to hold Captain Grimmis liable because LCDC
staff members were not held criminally responsible because of Captain Grimmis's
concealment and destruction of evidence. (Doc. 105 at 54-56.)
Mr. Belanus' s allegations do not state a constitutional violation. The Ninth
20

Circuit has made clear that there is no right to an adequate investigation claim
under§ 1983, unless it is anchored to a separate constitutional right. Gomez v.

Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) ("[W]e can find no instance where
the courts have recognized inadequate investigation as sufficient to state a civil
rights claim unless there was another recognized constitutional right involved.");

see also Ogurinu v. City ofRiverside, 79 Fed.Appx. 961, 962-63 (9th Cir. 2003)
("An inadequate investigation alone does not involve the deprivation of a

protected right, but must involve another recognized constitutional right" (internal
quotation marks and citations omitted)). This is because "the guarantee of due
process under the Fourteenth Amendment applies only when a constitutionally
protected liberty or property interest is at stake." Ingraham v. Wright, 430 U.S.
651, 672 (1977); Erickson v. United States, 67 F.3d 858, 861 (9th Cir. 1995). The
Ninth Circuit has made clear that a right to an adequate investigation is not a
constitutionally protected liberty or property interest. See Gomez, 572 F .2d at
1006; Ogurinu, 79 Fed.Appx. at 962-63.
This claim fails as a matter of law and summary judgment will be granted to
Captain Grimmis.
2. Supervisory Liability
Mr. Belanus alleges Defendants Dutton, West, Swain, Bulson, and Ferguson
21

were deliberately indifferent to his safety by housing him, a sex offender, in a
general population pod without taking other precautions other than telling him to
not talk about his charges. (Amd. Cmplt., Doc. 5, Counts I, II.) He also alleges
these Defendants failed to train and/or supervise the unnamed corporal who
allegedly disclosed the details of his criminal charges and failed to train Officers
Merritt and Hawthorne for returning him to Pod 1 after being advised that he was
in danger. (Amd. Cmplt., Doc. 5, Counts VI, VII, VIII, X, XI.)
"[S]upervisors are not subject to vicarious liability, but are liable only for
their own conduct." Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th
Cir. 1986). To hold a supervisory official liable under§ 1983, the plaintiff must
show either: (1) personal participation in the constitutional deprivation; or (2) a
sufficient causal connection between the supervisor's wrongful conduct and the
constitutional violation. Jeffers v. Gomez, 267 F3d 895, 915 (9th Cir. 2001);
Redman v. County ofSan Diego, 942 F.2d 1435, 1446 (9th Cir. 1991).
The supervisor's "personal participation" may include his "own culpable
action or inaction in the training, supervision, or control of his subordinates," "his
acquiescence in the constitutional deprivations of which the complaint is made,"
or "conduct that showed a reckless or callous indifference to the rights of others."
Larez v. City ofLos Angeles, 946 F.2d 630, 646 (9th Cir. 1991)(internal citations,
22

quotation marks, and alterations omitted). A "sufficient causal connection" exists
if the supervisor "implement[ed] a policy so deficient that the policy 'itself is a
repudiation of constitutional rights."' Redman, 942 F.2d at 1454-55 (citations
omitted.). However, a supervisor's "general responsibility for supervising the
operations of a prison is insufficient to establish personal involvement." Id. at
145 5 (citation omitted).

a. Placement in General Population
Just because Mr. Belanus is a sex offender does not automatically mean that
he faced a substantial risk of serious harm when he was housed in general
population. There are many factors that can be considered to determine if a
prisoner may be vulnerable to attack, and where the prisoner has been
charged/convicted of a sex offense certainly is one factor. Other factors which
maybe relevant to the determination of whether Mr. Belanus, a convicted sex
offender, faced a substantial risk of harm when he was placed in general
population include but are not limited to whether there were prior attacks against
sex offenders, whether Mr. Belanus was housed with aggressive or violent
offenders, the level of supervision in Pod 1, whether Mr. Belanus was allowed to
lock himself down to protect himself, and how long he had been housed in Pod 1
without incident.
23

There is a genuine issue of material fact regarding whether the jail was
segregating sex offenders for their safety. There is undisputed evidence that
except for three days in which he was placed in Pod 1 in November, 2008, Mr.
Belanus was segregated either in Pod 6 or in the library from August 4, 2008,
when he arrived at LCDC, until February 3, 2009, when he was moved to the
general population in Pod 1. (Movement Sheet, Doc. 78-3.) Mr. Belanus posits
that he was segregated due to his charges, a fact which is not disputed by
Defendants.
Defendants admit Pod 6 is a general population unit that has been used to
segregate inmates but they contend that it is not designated as such. (SUF ~ 3.)
Mr. Belanus asserts that Pod 6 was used to house inmates with similar crimes.
Defendants do not dispute this representation. He also submitted affidavits from
another inmate stating that while he was housed in LCDC, individuals with
disliked crimes were not housed in general population. (Jensen Aff., Doc. 101512 at 7-8.) The evidence suggests that the jail recognized it was necessary to
segregate inmates charged and/or convicted of sex crimes.
Defendants provide no reasonable justification for moving Mr. Belanus,
who had been previously segregated, to the general population in Pod 1. The
movement sheet lists Officer Hawthorne in connection with this move but it is
24

unclear whether she was solely responsible for the decision to move Mr. Belanus
or if she was acting on someone else's orders. In addition, no reason is given for
the move on the movement sheet. Mr. Belanus alleges he was the only individual
with a "disliked crime" who was housed in general population when there was a
pod specifically designated to house those with similar charges. (Doc. 105 at 48.)
Mr. Belanus contends he was moved because of overcrowding. Defendants
admit Mr. Belanus was moved from Pod 6 to Pod 1 when the women's unit needed
additional space. But they argue that this was a "legitimate administrative
necessity of the LCDC [that] cannot be restricted by the personal beliefs of
inmates." (MSJ brief, Doc. 77 at 26 citing Chandler v. Williams, 2013 WL
2489139, *20 (D.Or June 7, 2013).) Jail officials certainly have the discretion to
move inmates to different areas of the facility but if an inmate was segregated for a
particular reason and then moved into general population due to overcrowding
without any precautions, it raises a genuine issue of material fact whether this was
done in deliberate indifference to his safety.
Mr. Belanus presented evidence that just two months prior to his assault
another inmate was assaulted at LCDC for being a sex offender, albeit in the
segregated pod. (Hartford reports, Doc. 105-15.) Mr. Belanus also contends he
informed Sgts. West, Ferguson, Bulson, and Swain that he was in fear of being in
25

general population after watching an individual he was housed with in Pod 6 and
on the floor in the library placed in general population where he was severely
beaten and stomped into the concrete floor by several inmates because of his
charges. He contends the sergeants told him not to talk about his charges, lie
about his charges if necessary, tell the other inmates that he didn't have his
paperwork, and to not worry because what occurred in Pod 4 would not happen in
Pod 1. (Doc. 105 at 8-9.)
In addition, Mr. Belanus requested in discovery documents regarding other
assaults, but Defendants objected to that request because it was over broad in that
it sought all documents regarding "any type of assaults, fights, incidents, and
segregation at the Lewis and Clark Detention Center from August 3rd (sic), 2007
until the date of this request" which was April 11, 2016. Requiring Defendants to
produce nearly ten years of disciplinary records for LCDC is clearly overly
burdensome and will not be compelled. However, evidence of other
assaults/incidents involving vulnerable inmates charged with sex crimes is
relevant and Defendants will be required to respond to this request as set forth
below. The Court cannot determine whether Mr. Belanus faced a substantial risk
of serious harm until this discovery issue is resolved. See Chandler v. Amsberry,
2014 WL 1323048 (D.Or. 2014)(evidence which "shows that there were
26

infrequent assaults in general population areas and that those assaults were
generally not a result of an inmate's status as a sex offender" was relevant to the
finding that prison officials were not sufficiently aware of facts giving rise to an
inference of the serious risk of harm.)
A reasonable response is evaluated by considering whether the defendants
considered the safety of other inmates, whether the official took preventive
measures to protect the inmate, and whether less dangerous alternatives were in
fact available. Berg v. Kincheloe, 794 F.2d 457, 462 (9th Cir. 1986). Defendants
presented no evidence indicating that they considered Mr. Belanus's safety before
placing him in general population or whether they took any preventive measures to
protect him.
Two factors weaken Mr. Belanus's position but are an insufficient basis
upon which to grant summary judgment. First, Mr. Belanus provided no evidence
regarding the other inmates housed with him in Pod 1. A plaintiff could
potentially establish a substantial risk of serious harm where vulnerable prisoners
and aggressive prisoners are placed together, unsupervised and unpatrolled. See,

e.g., Taylor v. Mich. Dep't of Corr., 69 F.3d 76 (6th Cir. 1995). But Mr. Belanus
provided no information on what type of inmates were housed with him in Pod 1.
He sought discovery on the names of these individuals but specifically indicated
27

that the list of detainees was to be provided without the individual's charges or
past criminal history. (Doc. 95-2 at 2.) That information would have been
relevant to the determination of whether Mr. Belanus faced a substantial risk of
serious harm when he was placed in Pod 1, but he has not and presumably cannot
provide that information.
Additionally, Mr. Belanus made no argument and presented no evidence to
suggest that he was the victim of any other incidents of violence while housed in
Pod 1. He had been housed there for more than five months presumably without
incident. This may have prompted Officer Hawthorne's comment that if it hasn't
happened by now it won't happen.
Nevertheless, considering the evidence in the light most favorable to Mr.
Belanus, he had been previously segregated but was then moved to a general
population pod due to overcrowding. Despite this move, there is no evidence that
precautions were taken for Mr. Belanus's safety. In fact, he was initially housed
on the floor in Pod 1 and then when he was moved to a cell he was instructed he
had to leave his cell door open. There is evidence of at least one recent assault on
a sex offender and there may be more. However, resolution of that issue requires
further discovery. As such, the Court finds there is a genuine issue of material
fact, at least at this time, regarding whether Mr. Belanus faced a substantial risk of

28

serious harm when he was placed in Pod 1.
Defendants argue that they are entitled to qualified immunity on Counts I,
II, and IV-XI because in response to Mr. Belanus's concerns and Inmate
Demichelis' s threats Officer Hawthorne brought Mr. Belanus back to Pod 1 where
she contends he had the ability to lock his cell and contact a detention officer and
because she said she would deal with the situation directly after medication
rounds. As set forth above, because the Court finds there is a genuine issue of
material fact regarding whether Mr. Belanus was allowed to lock his cell thus
there is an issue of fact whether Defendants Merritt and Hawthorne were
deliberately indifferent to his safety. They also argue that Mr. Belanus failed to
provide evidence that better alternatives existed or that Defendants failed to
implement them. But Defendants have the burden and provided no. evidence that
they took any preventive measures to protect Mr. Belanus. Taking the evidence in
the light most favorable to Mr. Belanus, Defendants placed him in a general
population cell where he had to sleep on the floor at times and was not allowed to
lock his cell when he was assigned one and the only precaution was that he was
told to not discuss his charges.
Defendants provided no information regarding any measures taken to
protect vulnerable inmates, they provided no explanation of Mr. Belanus's custody

29

classification or housing assignments, and there is no indication Defendants
considered what charges the other inmates in Pod 1 may have had.
Although it is a closer question than with regard to Officers Merritt and
Hawthorne, the Court will also deny Defendants West, Swain, Ferguson, Bulson,
and Dutton's motion for summary judgment on this issue.

b. Failure to Train
Despite Defendants' argument to the contrary, a supervisor's failure to train
subordinates can give rise to individual liability under Section 1983 where the
supervisor's failure amounts to deliberate indifference to the rights of persons with
whom the employees are likely to come into contact. Larez, 946 F .2d at 646;

Canel! v. Lightner, 143 F.3d 1210, 1213-14 (9th Cir. 1998). In order to hold
Defendants liable for failure to train and supervise under 42 U.S.C. § 1983, Mr.
Belanus must establish that Defendants were "deliberately indifferent to the need
to train subordinates, and the lack of training actually caused the constitutional
harm or deprivation of rights." Flores v. County ofLos Angeles, 758 F.3d 1154,
1158-59 (9th Cir. 2014)(citing Connickv. Thompson, 563 U.S. 51, 58 (2011)). A
plaintiff alleging a failure to train claim must show: ( 1) he was deprived of a
constitutional right, (2) the defendant had a training policy that "amounts to
deliberate indifference to the [constitutional] rights of the persons' with whom [his
30

employees] are likely to come into contact"; and (3) his constitutional injury
would have been avoided had the defendant properly trained those employees.
See Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007); Lee v. City
of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001).
Mr. Belanus alleges Defendants Ferguson, Bulson, Swain, West, and Dutton
failed to train and supervise Officers Hawthorne, Shanks, Gilbertson, and Merritt.
(Doc. 5 at 16-1 7.) Defendants only argument opposing this claim is that, "a failure
to train claim cannot be against the named defendants because they do not have
policy making authority." (Doc. 77 at 20.) They are incorrect.
Defendants cite Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986)
for the following proposition:
Liability under § 1983 attaches only when the decision maker
possesses final authority to establish policy and only where a
deliberate choice to follow a course of action is made from various
alternatives by the officials responsible for establishing final policy
with respect to the subject matter in question.
(MSJ Brief, Doc. 77 at 20 (emphasis added).) They then argue that because
Sheriff Dutton was the only final policymaker, Defendants Ferguson, Bulson,
Swain, and West cannot be held liable for failure to train. In fact, the United
States Supreme Court held in Pembaur that:
municipal liability under § 1983 attaches where-and only where-a
31

deliberate choice to follow a course of action is made from among
various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.
Pembaur, 475 U.S. at 483. Pembauer provides an analytical framework for
municipal liability claims, it certainly does not foreclose supervisory liability
claims based upon a failure to train.
As set forth above, a supervisory official can be held liable for a failure to
train if they are on notice of the need to train and do not do so. Clement v. Gomez,
298 F.3d 898, 905 (9th Cir. 2002) (stating that§ 1983 liability for deliberate
indifference to medical needs may attach where "supervisors were on actual or
constructive notice of the need to train." (citing Farmer, 511 U.S. at 841).)
Mr. Belanus asserts without evidence that Defendants West, Bulson,
Ferguson and Swain are training officers. But Defendants do not dispute this
assertion. Mr. Belanus contends these Defendants failed to properly
train/supervise Defendants Merritt and Hawthorne on the handling of vulnerable
inmates in general population. "A pattern of similar constitutional violations by
untrained employees is ordinarily necessary to demonstrate [such notice] for
purposes of failure to train." See Connick, 563 U.S. at 62 (citation omitted); see
also Willardv. Cal. Dep'tofCorrs. & Rehab., No. 1:14-cv-00760-BAM, 2015
WL 4495916, at *7 (E.D. Cal. July 23, 2015) (citing cases) (stating that the "cases
32

in which supervisors have been held liable under a failure to train/supervise theory
involve conscious choices made with full knowledge that a problem existed").
Mr. Belanus only submitted evidence of one prior assault on a sex offender but as
discussed, that is an outstanding discovery issue.
In filing a motion for summary judgment, "[t]he moving party initially bears
the burden of proving the absence of a genuine issue of material fact." Oracle,
627 F.3d at 387. Defendants presented no evidence or argument describing the
training and/or supervision provided to Officers Merritt and Hawthorne regarding
the protection and housing of vulnerable inmates such as Mr. Belanus. As such,
these Defendants are not entitled to summary judgment on this issue.
Defendants did present evidence with regard to Mr. Belanus' s claims that
Defendants failed to train and supervise an unknown corporal on not disclosing
inmates' charges to other inmates. (Counts VI, VII, VIII, Doc. 5 at 12-14.) There
are several affidavits which indicate that "it is standard training for detention
officers at LCDC that they do not discuss an inmate's charges or classification
with another inmate." (Hawthorne Aff., Doc. 78-16 at 4, if 17; see also Grimmis
Aff., Doc. 78-17 at 3, if 12; Dutton Aff., Doc. 78-18 at 2, if 7; Swain Aff., Doc. 7819 at 2, if 6.) Mr. Belanus could not dispute this evidence and as such has not
shown that the corporal did not receive sufficient training on this issue.
33

Moreover, Mr. Belanus' s claims regarding what an unknown corporal may
or may not have said are too speculative to go forward. Mr. Belanus cannot
identify this individual and the only evidence he has of him discussing his charges
is a handwritten note which would be inadmissible at trial to prove the truth of the
matter asserted. Fed.R.Evid. 801, et. seq. He asserts that he observed the corporal
talking with other detainees but he could not hear what they were talking about.
Moreover, as Defendants point out, there are a number of ways that inmates at
LCDC could have been made aware of Mr. Belanus's charges. For example,
during the medication pass on July 11, 2009 just prior to the assault, Mr. Belanus
told Officer Hawthorne that "a girlfriend of someone in Pod 2 had called the jail
and found out why he was here." (SUF

at~

37.)

Accordingly, summary judgment will not be granted on Counts X and XI
but it will be granted on Counts VI, VII, and VIII.

c. Sheriff Dutton
In Redman v. County ofSan Diego, 942 F.2d 1435 (9th Cir. 1991)

abrogated on other grounds by Farmer, 511 U.S. 825, the Ninth Circuit
considered the acts of the Sheriff of San Diego County who was in charge of all
the County's detention facilities. The Court found that the record showed that at
the time of the assault on the plaintiff,
34

the South Bay Detention Facility housed over 300 detainees even
though it was designed for 192, which is 56% over capacity. Officials
at SBDF admitted that at any other facility, a detainee thought likely
to assault others would be isolated or observed more carefully, but the
overcrowding at SBDF meant that they "weren't able to do that." The
facility was so crowded that cells designed for one person housed
multiple inmates, and there was no individual housing, which made it
impossible to isolate troublemakers like Clark. Thus, when Clark was
found coercing sex from others in the homosexual unit, there was no
way to isolate him. Instead, Clark was placed in the mainline
population with the "hope that ... nothing happens."

Id., at 144 7 (internal citations omitted). Based on this record, the Ninth Circuit
found sufficient evidence of overcrowding, that the Sheriff should have known of
the overcrowding, and that it was a moving force behind the rape of Mr. Redman.
Similarly, Mr. Belanus alleges Sheriff Dutton should be held liable for
maintaining the facility beyond capacity thus forcing inmates who were previously
segregated into general population. Mr. Belanus submitted evidence that LCDC
had an average daily population of77 in 2009 (Doc. 105-14 at 40) even though it
was originally designed for 58 beds (Doc. 105-13). Although Defendants refused
to admit that sex offenders had been segregated for their safety, Mr. Belanus
contends that he was previously segregated for the majority of his incarceration at
LCDC but that they moved him into general population due to overcrowding.
There is evidence in the record of both overcrowding and Sheriff Dutton' s
ultimate direction of operations at LCDC. Drawing all inferences in favor of Mr.
35

Belanus, the Court finds that a reasonable jury could find Sheriff Dutton was
deliberately indifferent to Mr. Belanus' s personal security rights by allowing
overcrowding at LCDC. Moreover, a jury could find that Sheriff Dutton knew or
reasonably should have known of the overcrowding at a facility under his
administration and that he acquiesced in a deficient policy that was a moving force
behind the assault on Mr. Belanus in violation of the Eighth Amendment. See

Redman, 942 F.2d at 1447. Although the Court recognizes the challenges
presented by overcrowding, there is no evidence that any additional precautions
were taken to protect Mr. Belanus once he was placed in general population.
Given the outstanding discovery issues and evidence presented in the record, the
Court finds that Sheriff Dutton is not entitled to summary judgment.

3. Muncipal Liability
In Count IV, Mr. Belanus alleges that Lewis and Clark County is liable for
maintaining an overcrowded jail which led to the assault on his person. (Doc. 5 at
10.) In Count XIV, he alleges the County had a practice of ignoring medical needs
for several hours in order to keep medical costs down. (Doc. 5 at 20.)
Liability of governmental entities under 42 U.S.C. § 1983, "is limited to
deprivations of federally protected rights caused by action taken 'pursuant to
official municipal policy of some nature.' " Pembaur v. City of Cincinnati, 4 75
36

U.S. 469, 471 (1986) (quoting Monell v. Dep't of Soc. Servs. of City ofNew York,
436 U.S. 658, 691 (1978)). Because the theory of respondeat superior precludes a
municipality itself from being held vicariously liable for the acts of its employees,
the plaintiff must establish "a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation." City of Canton v. Harris, 489
U.S. 378, 385 (1989). Thus, a local government unit such as the County, can only
be held liable when County employees are found to have committed constitutional
violations and "a policy, practice or custom of the entity can be shown to be a
moving force behind a violation of constitutional rights." Dougherty v. City of

Covina, 654 F.3d 892, 900 (9th Cir. 2011).
a. Overcrowding
Allegations of overcrowding, alone, are insufficient to state a claim under
the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Balla v.

Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989); Akao v. Shimada, 832
F.2d 119, 120 (9th Cir. 1987) (per curiam). Overcrowding may violate the
constitution when it causes an increase in violence or reduces the availability of
other constitutionally required services. Balla, 869 F .2d at 4 71 ;. Akao v. Shimada,
832 F.2d 119, 120 (9th Cir. 1987).
For reasons set forth above and for purposes of this motion, the Court will
37

assume that LCDC was overcrowded. There is evidence that LCDC was housing
more inmates than it was designed to accommodate, Mr. Belanus was frequently
moved to different pods due to overcrowding, and individuals were being housed
in the library and on the floor of pods. (Movement Sheet, Doc. 78-3.)
Mr. Belanus argues that because LCDC was overcrowded he had to be
placed in a general population pod as opposed to a segregated pod. Much like the
individual claims, it is not just the placement of Mr. Belanus in general population
that creates a problem. But there is no evidence that any additional precautions
were taken for him as a sex offender once he was placed in a general population
cell. As set forth above, Defendants provided no information regarding any
measures taken to protect vulnerable inmates, they provided no explanation of Mr.
Belanus' s custody classification or housing assignments, and there is no indication
Defendants considered what charges the other inmates in Pod 1 may have had, or
the level of supervision in general population.
Defendants frame Mr. Belanus' s overcrowding arguments as being a claim
that LCDC instituted a policy to generate revenue by increasing the number of
inmates. Mr. Belanus did make this argument (Doc. 5 at 10) but in that same
claim he specifically alleges that the overcrowding at LCDC led to his placement
in general population which resulted in the assault. (Doc. 5 at 10.) If the County
38

had a custom, policy or practice of placing more inmates in the detention center
than it was designed to accommodate, without sufficient precautions being made
for vulnerable inmates (such as sex offenders), then the County could be held
liable. While there may not be an official written or adopted policy regarding
overcrowding, there is sufficient evidence to create a genuine issue of material fact
regarding whether overcrowding at the detention center is a custom which rises to
the level of official policy.
Thus, there is a material issue of fact regarding whether Lewis and Clark
County's failure to take action to address the overcrowding situation rose to the
level of an official policy or custom, adopted with deliberate indifference to the
likelihood of inmate on inmate assaults and which caused the assault on Mr.
Belanus. At this point, there is not sufficient evidence to establish a pattern of
incidents of inmate on inmate assaults particularly on sex offenders. But as
discussed herein, there are outstanding discovery issues relevant to this issue. As
such, summary judgment cannot be granted on the issue of municipal liability for
Mr. Belanus' s claims of failure to protect.

b. Medical Needs
Mr. Belanus alleges Lewis and Clark County was deliberately indifferent to
his serious medical needs because they have a practice of ignoring medical needs
39

for several hours to keep medical costs down. (Amd. Cmplt., Count XIV, Doc. 5
at 20.) To prevail on an Eighth Amendment medical care claim, a prisoner must
demonstrate "deliberate indifference to serious medical needs." Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976)). There are two prongs to the deliberate-indifference analysis. First, a
prisoner must show a "serious medical need." Jett, 439 F.3d at 1096 (citations
omitted). A "'serious' medical need exists if the failure to treat a prisoner's
condition could result in further significant injury or the 'unnecessary and wanton
infliction of pain."' McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)
(internal citation omitted).
Second, a prisoner must show that the defendant's response to that need was
deliberately indifferent. Jett, 439 F.3d at 1096. This second prong is met ifthe
prisoner demonstrates (1) a purposeful act or failure to respond to a prisoner's
medical need and (2) harm caused by the indifference. Id. Prison officials are
deliberately indifferent if they deny, delay, or intentionally interfere with medical
treatment. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
The Eighth Amendment duty to provide medical care applies to medical
conditions that may result in pain and suffering which serve no legitimate
penological purpose. Estelle, 429 U.S. at 103. "The infliction of unnecessary
40

suffering is inconsistent with contemporary standards of decency ... " Id.
Under§ 1983, "an individual may recover only when that individual's
federal rights have been violated." Quintanilla v. City ofDowney, 84 F.3d 353,
356 (9th Cir. 1996). As a result, when there is no underlying constitutional
violation, a plaintiff cannot maintain a claim for municipal liability. Id. (citing

City ofLos Angeles v. Heller, 475 U.S. 796, 799 (1986)(stating "[i]f a person has
suffered no constitutional injury at the hands of the individual police officer, the
fact that the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point").
Mr. Belanus failed to establish that any county employee was deliberately
indifferent to his serious medical needs. The assault occurred at approximately
10:30 p.m. Emergency medical personnel arrived at 10:44 p.m. After a quick
assessment, the EMTs determined Mr. Belanus did not need to be transported to
the hospital. Staff initiated a call to the EMTS again at 12:03 a.m. to reexamine
Mr. Belanus. They again determined that Mr. Belanus did not require emergency
transport to the hospital. Despite this and because of Mr. Belanus' s continuing
complaints, a sheriffs deputy transported Mr. Belanus to St. Peter's Hospital at
approximately 1:00 a.m. for further evaluation. (Merritt Report, Doc. 78-8 at ~7.)
St. Peter's Hospital staff diagnosed Mr. Belanus with multiple abrasions and
41

contusions, a mild kidney contusion, and a 2-cm laceration to his lower lip. Mr.
Belanus was treated at the hospital and returned to LCDC at 5:44 a.m. (Id. at~ 9.)
Staff at LCDC appropriately relied upon the expertise of the EMTs and
were not deliberately indifferent for doing so. When Mr. Belanus continued to be
in pain, they transported him to the hospital. Despite his allegations that he was
ignored for several hours, the record establishes that he was at the jail for just two
and a half hours after the assault and before he was transported to the hospital and
during that time he was examined twice by EMTs. There is no showing that any
county employee was deliberately indifferent to his medical needs.
Mr. Belanus may have believed that he should have been transported to the
hospital sooner but "a difference of opinion between a physician and the
prisoner-or between medical professionals-concerning what medical care is
appropriate does not [without more] amount to deliberate of indifference." Snow

v. McDaniel, 681F.3d978, 987 (9th Cir. 2012), overruled on other grounds,
Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014). To establish that such a
difference of opinion amounted to deliberate indifference, a prisoner "must show
that the course of treatment the doctors chose was medically unacceptable under
the circumstances" and "that they chose this course in conscious disregard of an
excessive risk to [the prisoner's] health." Jackson v. Mcintosh, 90 F.3d 330, 332
42

(9th Cir. 1996). The record does not demonstrate that there was a conscious
disregard for Mr. Belanus's medical needs. Mr. Belanus has failed to establish
that he suffered an underlying constitutional violation, therefore he cannot
maintain a claim against the County for the policies which they may have
established.
Summary judgment will be granted to the County on Mr. Belanus' s
deliberate indifference to serious medical needs claim.

II. NON-DISPOSITIVE MOTIONS
A. Motion for Protective Order (Doc. 70)
Mr. Belanus seeks an order to protect him from having to produce certain
medical records. In their discovery requests, Defendants sought the following
documents from Mr. Belanus:
INTERROGATORY NO. 1: Please state with particularity the
details of any physical or mental injuries you claim as a result of the
incidents described in your complaint.
INTERROGATORY NO. 2: Please identify any health care provider
who has treated you for physical or mental injuries set forth in
response to the preceding interrogatory.
REQUEST FOR PRODUCTION NO. 1: Please provide copies of all
office notes, medical/psychological tests, and medical/psychological
reports generated since 2009 by the medical providers you listed in
your Answer to Interrogatory No. 2 above. In the alternative, you
may complete, sign, and return to MACO Defense Services the
43

enclosed Authorizations, one for each of your providers listed in your
Answer to Interrogatory No. 2 above, which will allow defense
counsel to obtain such documents directly.
(Doc. 80-1.)
Mr. Belanus placed his medical condition at issue in this case and it is
relevant to the remaining claims. As such, he must produce all medical records
related to his allegations in this case. If he has not already done so he must state
with particularity the details of any physical or mental injury he claims as a result
of the incidents at issue, all health care providers who have treated him for any of
these injuries, and provide all medical records regarding these injuries.
Should Mr. Belanus fail to comply, he will not be allowed to provide
evidence of the injuries he received and will not be allowed to seek damages for
any such injuries. The motion for protective order will be denied.
B. Discovery Motions (Docs. 81, 85, 87, 89)

Mr. Belanus' s motion for sanctions and adverse jury instructions are all
based on alleged discovery violations. The motions will be denied.
1. Sanctions and Instruction on Video Recordings (Docs. 81, 85)

First, Mr. Belanus seeks sanctions and an adverse jury instruction arguing
that Defendants wrongfully destroyed video recordings of the July 11, 2009
incident, and the events prior thereto. However, Defendants demonstrated there

44

was no video surveillance of the infirmary or the individual cells in Pod 1, and the
video monitors in the common area of Pod 1 were not recorded at the time of the
incident thus there never was any recorded video footage of the fight or the trip to
the infirmary. (Doc. 94 at 6 citing Ex. 3 at 2.) The motion for sanctions and
motion for adverse jury instruction # 1 will be denied.

2. Instruction on Video Policy (Doc. 87)
Second, Mr. Belanus seeks an adverse jury instruction based upon
Defendants' alleged failure to provide a copy of the policy regarding LCDC's
video surveillance system. Defendants presume Mr. Belanus is referring to the
records retention and disposition schedule prepared by the local government
records committee as set forth in Montana Code Annotated§ 2-6-403(3) [repealed
in 2015]. If this is the document Mr. Belanus is referring to, it is not a policy of
the LCDC, but rather a proposed schedule prepared by a subcommittee of the state
legislature. It has not been adopted as policy by the LCDC. (Grimmis Aff, Doc.
94-3 at 3, il 6.) The schedule therefore is not responsive to Plaintiffs request for
policies of the LCDC regarding the video surveillance system and is not a basis
upon which to sanction Defendants or provide an adverse jury instruction.
Moreover, there was no video to preserve and therefore the policy is irrelevant.

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3. Instruction on Recorded Statement (Doc. 89)
Third, Mr. Belanus seeks an adverse jury instruction based upon
Defendants' failure to retain Mr. Belanus' s recorded statement taken by Captain
Grimmis. (Doc. 90 at 2.) Mr. Belanus has not shown how this statement would be
relevant when he can testify to the events at issue. In addition, a party is entitled
to an adverse jury instruction, "only upon finding that the party acted with the
intent to deprive another party of the information's use in the litigation .... " Fed.
R. Civ. Pro. 37(e)(2). It is undisputed that the electronic information at issue was
lost because no affirmative steps were taken to secure a permanent copy. The
information was automatically overwritten in the normal course of operations.
This happened long before Defendants had notice of Mr. Belanus's lawsuit, and
Defendants were not provided with timely notice that preservation was requested.
Mr. Belanus thus cannot establish the intent to deprive, which is a necessary
prerequisite to an adverse jury instruction.

C. Motions to Compel (Doc. 83, 100)
Mr. Belanus moves to compel more extensive answers to almost every
discovery request he propounded upon Defendants. It is impossible to determine
the sufficiency of many discovery responses as Mr. Belanus only sought the
production of documents and Defendants provided thousands of pages of
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documents in response to those requests. Many of Mr. Belanus's requests sought
documents pertaining to a nine-year period of time well after the incident at issue
and when Mr. Belanus was not incarcerated at LCDC. The Court agrees that
information requested about LCDC after July 11, 2009 is not relevant and need not
be produced. Without reviewing all of the documents produced, it is impossible to
determine if the documents produced were responsive to Mr. Belanus' s requests.
The Court has reviewed the discovery motions in detail along with the
discovery responses and the parties' briefings and provides the following analysis.

1. Items not in Defendants' Possession
Defendants are only required to produce items in their "possession, custody,
or control." Fed.R.Civ.P. 34(a)(l). A party is not required to create items to
disclose in discovery. Rule 34 of the Federal Rules of Civil Procedure only
requires a party to produce documents that already exist. See Alexander v. FBI,
194 F.R.D. 305, 310 (D.D.C.2000). A party responding to a Rule 34 document
request cannot be compelled to prepare or create new documents. Ibid.; see also

Paramount Pictures Corp. v. Replay TV, No. CV 01-9358 FMC (Ex), 2002 WL
32151632, at *2 (C.D.Cal.2002) (citing Alexander, 194 F.R.D. at 310). The rules
of discovery do not require a party to create or generate responsive materials (in
this case, photographs) but only to produce and allow inspection of "items in the

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responding parties' possession, custody, or control." Seed Research Equipment

Solutions, LLC v. Gary W. Clem, Inc.2011 WL 3880895 (D.Kan 2011). Because
the Court has no authority to require Defendants to create items that a party does
not have in its possession, custody or control, Mr. Belanus's motion with regard to
all documents that Defendants represent they do not have in their possession,
custody or control will be denied.
Mr. Belanus cites to Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) for
the proposition that he was entitled to photographs of all staff at LCDC in order to
properly name John Doe defendants. The Court does not agree. Mr. Belanus was
given an opportunity to conduct discovery on John Doe defendants. He could
have sent interrogatories regarding the officers on staff in the days leading up to
the assault or he could have asked for the name of the officer that attended his
criminal proceedings. But instead, Mr. Belanus asked for improper discovery
when he requested that Defendants take photos of all staff and provide their names
and other information. Defendants responded to Mr. Belanus' s requests for
photographs by stating that they do not have photographs of their employees.
They will not be required to take and produce photographs that do not otherwise
exist.
In RPD 10, Mr. Belanus seeks all video footage from LCDC from August 3,
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2008 to August 13, 2008. Defendants responded that the requested information
was not in Defendants' possession. Mr. Belanus in many of his filings contends
that there was video evidence of his pod on July 11, 2009. But Defendants have
provided undisputed testimony from Captain Grimmis that,
Prior to 2010 the only areas of the jail which were monitored by
camera were the booking floor, the DUI processing hallway and the
dayroom of each pod in the jail. None of those cameras were
routinely recorded. The booking floor and DUI processing areas
were only recorded during DUI processing or when an officer felt the
need to document something happening in that area. In those events
an officer could record footage from cameras in those areas were [sic]
onto a VHS tape. The video monitors in the dayrooms were not
capable of being recorded, but were only used by the control room
officer to visually monitor activities in the dayrooms.
(Grimmis Aff., Doc. 94-3 at 2, ~ 3.) Mr. Belanus disputes this statement but he
provides no evidence to contradict it. There is no evidence that video of the
incident at issue ever existed.
In his addendum to discovery request 1, Mr. Belanus requests transcripts of
the court proceedings for the inmates convicted of his assault. Defendants
responded that they do not have these documents in their possession. Mr. Belanus
argues they are obligated to obtain these documents. They are not.
Mr. Belanus also requested the audio interview of Inmate Olson which
Defendants indicate was overwritten. Defendants cannot produce something

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which no longer exists.

2. Sufficient Responses
Mr. Belanus requested photographs of all inmates from August 3, 2008 to
August 13, 2009. In response, Defendants provided the photographs of all
individuals in Pod 1 and Pod 2 with their names on July 11, 2009. The Court finds
this response to be sufficient.
In requests 3-5, Mr. Belanus asks for the maximum and actual capacity of
LCDC. He was informed that there is no maximum capacity but LCDC was
originally designed to hold 54 individuals. He was also provided the names and
dates of individuals housed in each pod. The Court finds these responses to be
sufficient.
Mr. Belanus complains he was not provided with policies and procedures
for staff duties or recording of videos. Defendants provided LCDC's policies and
procedures but withheld policies regarding detention center security. The Court
agrees those policies are confidential and need not be produced to Mr. Belanus.
However, Defendants will not be allowed to utilize at trial any policy or procedure
that was not produced in discovery.
In RPD 12, Mr. Belanus requested all records which authorized, recorded,
documented, and tracked the movements of Mr. Belanus and other segregated
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individuals from August 3, 2008 to August 13, 2009. In response, Defendants
indicated they provided Mr. Belanus with all responsive documents with their
disclosures which consisted of 713 pages. Mr. Belanus argues the information
was not provided. Mr. Belanus argues that he needs to know the names of the
administrators who authorized his move to general population but that is not what
he requested in discovery. He requested documents and was provided those
documents. Although he argues the information was not provided, he points to no
documents which have not been produced. Defendants' response is sufficient.

3. Discovery to be Provided
In RPD 8, Mr. Belanus sought all documents concerning any misconduct by
any employee ofLCDC from August 3, 2007 through April 11, 2016. Defendants
objected on the grounds that the request was overbroad in that it sought
disciplinary records for all LCDC employees for a nine-year period of time, most
of which was after the events at issue. The Court agrees the original request is
overbroad, however, Defendants will be required to produce all records regarding
and concerning any alleged misconduct by Officers Merritt and Hawthorne related
to failure to protect inmates from August 3, 2007 to July 11, 2009.
In RPD 9, Mr. Belanus sought records regarding all assaults, fights,
incidents, segregations at LCDC from August 2007 to April 11, 2016. Defendants
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objected to this request on the grounds that it was overbroad. Mr. Belanus argues
that he cannot provide evidence of the repeated history of assaults at LCDC
without this evidence and he invokes Rule 56(d). (Doc. 105 at 3.) Defendants
argued in their motion for summary judgment that a single prior assault was not
sufficient evidence to impose liability for a failure to implement procedures to
prevent such assaults. Defendants cannot refuse to produce discovery on prior
assaults then argue Mr. Belanus failed to meet his burden because he did not have
the evidence. If there were assaults on sex offenders at LCDC prior to July 11,
2009, it is relevant to Mr. Belanus's supervisory and municipal liability claims.
Defendants will be required to produce all records of prior assaults on sex
offenders at LCDC from August 2007 to July 11, 2009.
In RPD 14, Mr. Belanus sought all documents regarding managing prisoners
who threatened violence at the LCDC, including documents regarding actual
assaults. Defendants referred Mr. Belanus to the LCDC policies and procedures
and referred to their response to RPD 9. Again, Defendants have produced a
number of policies and procedures which the Court finds sufficient but Defendants
will not be allowed to refer to any other documents regarding policies which have
not been produced in discovery. In addition, as set forth above, Defendants will
be required to produce all records of prior assaults on sex offenders at LCDC from
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August 2007 to July 11, 2009.
In RPD 15, Mr. Belanus sought all records, policies, internal operating
procedures, guidelines, internal communications, rules, and/or any information
regarding the operations of any internal investigatory or review division which
inquires or investigates the misconduct and/or conduct of any employed person at
LCDC and Lewis and Clark Sheriffs Office from August 3rd (sic), 2007 until and
including the date of this request. Defendants objected to this request on the
grounds that it was overbroad, overly burdensome, and not reasonably calculated
to lead to the discovery of admissible evidence and was designed to harass
Defendants. If there was an internal investigation or review division which
investigated any LCDC employee's conduct as a result of the July 11, 2009
incident at issue, those documents must be produced.

4. Cumulative Requests
Mr. Belanus's interrogatories were cumulative to the requests for
production of documents. The Court has addressed those issues above.

D. Motion for Contempt of Court Order or Compel Compliance
Mr. Belanus subpoenaed documents from Cherry Creek Radio regarding all
broadcasts dealing with Sheriff Dutton, LCDC and the Lewis and Clark County
Sheriffs Office. The subpoena was signed by the Clerk's Office on July 22, 2016
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(Doc. 103-1) and served on Cherry Creek Radio on August 22, 2016 (Doc. 103-2).
Mr. Belanus filed his motion for contempt on October 4, 2016. (Doc. 101.)
On October 6, 2016 Chris Ackerman, on behalf of Cherry Creek Radio responded
to the subpoena by letter informing Mr. Belanus that Cherry Creek Radio did not
keep records of broadcasts, had no knowledge of the subject matter, has no
recollection of Sheriff Dutton being in the station, and has no knowledge of the
statements which Mr. Belanus referenced in his subpoena. (Doc. 103 at 2; 103-3;
103-4.)
Non-parties Chris Ackerman and Ron Davis filed a response to Mr.
Belanus's motion on October 12, 2016 asking that it be denied as moot. (Doc.
103.) Mr. Belanus has no evidence to contradict Cherry Creek's response to the
subpoena. The motion will be denied.

E. Motion for Declaratory Judgment (Doc. 114)
The motions' deadline in this matter was July 22, 2016. Mr. Belanus's
motion was filed on November 4, 2016 and it is therefore untimely. In addition,
the relief sought in the motion is unrelated to the issues in his lawsuit. In fact, Mr.
Belanus is raising a completely new issue. This matter is proceeding on Mr.
Belanus' s claims that Defendants failed to protect him from an attack by other
inmates and thereafter denied him medical care. In his current motion, Mr.
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Belanus seeks a declaratory judgment declaring that his initial appearance which
was held without counsel was a critical stage of his criminal proceedings and that
the setting of his high cash bond and the increase of his case bond without hearing
was a violation of the Eighth and Fourteenth Amendments regarding Montana's
constitutional and statutory guarantees.
The Court lacks authority to issue an injunction for such relief. Pac.

Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 636 (9th Cir.
2015). The Ninth Circuit has explained:
[T]here must be a relationship between the injury claimed in the
motion for injunctive relief and the conduct asserted in the underlying
complaint. This requires a sufficient nexus between the claims raised
in a motion for injunctive relief and the claims set forth in the
underlying complaint itself. The relationship between the preliminary
injunction and the underlying complaint is sufficiently strong where
the preliminary injunction would grant 'relief of the same character as
that which may be granted finally.' Absent that relationship or nexus,
the district court lacks authority to grant the relief requested.

Pac. Radiation Oncology, 810 F.3d at 636.
Accordingly, the motion will be denied.
Based upon the foregoing, the Court issues the following:

ORDER
1. Mr. Belanus's Motion for Protective Order (Doc. 70) is DENIED.
Within 30 days of the date of this Order, Mr. Belanus must, if he has not already
55

done so, produce all medical records related to his allegations in this case. He
must state with particularity the details of any physical or mental injury he claims
as a result of the incidents at issue, all health care providers who have treated him
for any of these injuries, and he must provide all medical records regarding these
mJunes.
2. Defendants' Motion for Summary Judgment (Doc. 76) is GRANTED as
to Count VI (failure to train corporal), Count VII (failure to train corporal), Count
VIII (failure to train corporal), Count XII (failure to investigate), and Count XIV
(denial of medical care). Defendants Grimmis, Shanks, and Gilbertson are
DISMISSED.
Defendants' Motion for Summary Judgment is DENIED as to Counts I, II,
IV, IX, X, XI, XIV, and XVII and as to Defendants Hawthrone, Merritt, Dutton,
West, Bulson, Ferguson, and Swain. 3
3. Mr. Belanus's Motion for Sanctions (Doc. 81) is DENIED.
4. Mr. Belanus's Motions to Compel (Doc. 83, 100) are DENIED IN PART
AND GRANTED IN PART. Defendants will be required to produce:
a. All records regarding and concerning any alleged misconduct by

3

Counts III, V, XIII, XV, XVI, XVIII, and XIX were previously dismissed and/or name
only defendants who have not been served and are not parties to this action.

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Officers Merritt and Hawthorne related to failure to protect inmates from August
3, 2007 to July 11, 2009;
b. All records of prior assaults on sex offenders at LCDC from
August 2007 to July 11, 2009; and
c. any records pertaining to any internal investigation or review
division which investigated any employees' conduct as a result of the July 11,
2009 incident at issue.
The motions to compel are DENIED with regard to all other discovery
requests.
5. Mr. Belanus's Motions for Adverse Jury Instructions (Docs. 85, 87, 89)
are DENIED.
6. Mr. Belanus's Motion for Contempt or to Comply Compliance (Doc.
101) is DENIED.
7. Mr. Belanus's Motion for Declaratory Judgment (Doc. 114) is DENIED.

DATED this 23v-Jay of March, 201

Dana L. Christensen, Chief Judge
United States District Court

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