Marsh v. Phelps County et al

Filing 23

ORDER granting 10 Motion for Summary Judgment filed by Samuelson and Gregg in their individual capacities and by Defendant Phelps County, including Samuelson and Gregg in their official capacities, in its entirety. Plaintiff's claims agains t Campana in his individual capacity remain. A telephonic conference with the undersigned magistrate judge will be held on December 20, 2016 at 11:45 a.m. to discuss further case progression. To participate in the call, Dial 1-877-336-1828. Enter th e access code 5957780, then hit the # key. Enter the security code: 3032 Press (1) to accept. Press (2) to re-enter. The clerk shal mail a copy of this order to Louis P. Campana, Jr. Ordered by Magistrate Judge Cheryl R. Zwart. (Copies mailed as directed) (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONDA L. MARSH, and all others similarly
situated;
4:16CV3032
Plaintiff,
vs.

MEMORANDUM AND ORDER

PHELPS COUNTY, GENE SAMUELSON,
Individually and in his official capacity as
Sheriff; PENNY GREGG, AND Individually
and in her official capacity as Phelps County
Corrections Lieutenant; and LOUIS P.
CAMPANAJR., Individually and in his
official capacity as Corrections Officer;
Defendants.
This matter is before the court on Defendants’ Motion for Summary Judgment.
(Filing No. 10). Defendants Samuelson and Gregg argue they are entitled to summary
judgment based on qualified immunity. Defendant Phelps County moves for summary
judgment on all claims against it.

PROCEDURAL BACKGROUND

Plaintiff Ronda Marsh filed suit against Defendants Phelps County, Nebraska, Gene
Samuelson (“Samuelson”), Penny Gregg (“Gregg”), and Louis Campana, Jr. (“Campana”)
pursuant to 42 U.S.C. § 1983. (Filing No. 1-1). Marsh alleges she was sexually assaulted by
Defendant Campana, a corrections officer, while incarcerated at the Phelps County Jail. She
further alleges Defendants Samuelson and Gregg, the Sheriff and jail administrator,
respectively, were deliberately indifferent in violation of her Eighth and Fourteenth
Amendment rights by failing to protect her from the known risk of harm presented by
Campana (Id.) Marsh sued each defendant in their individual and official capacities.
Defendants Samuelson and Gregg in their individual capacity, and Phelps County
(encompassing all official capacity claims) have moved for summary judgment. (Filing No.

10). Defendants Samuelson and Gregg assert they are entitled to qualified immunity.
Defendant Phelps County moves for summary judgment on all claims against it.

STANDARD OF REVIEW
“The court shall grant summary judgment if the movant 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(c)(2). In ruling on a motion for summary judgment, the court must
view the evidence in the light most favorable to the non-moving party, giving that party the
benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v.
Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court’s function to weigh
evidence in the summary judgment record to determine the truth of any factual issue; the
court merely determines whether there is evidence creating a genuine issue for trial. See Bell
v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

The moving party bears the burden of showing there are no genuine issues of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, “a party opposing a
properly supported motion for summary judgment ‘may not rest upon the mere allegations or
denials of his pleading, but must set forth specific facts showing that there is a genuine issue
for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)) (internal marks omitted).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge . . . . The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 251-52 (internal citations omitted).

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STATEMENT OF FACTS

As a preliminary matter, Defendants object to the evidence submitted by Plaintiff
filed as Filing No. 16-3–16-19. In accordance with Federal Rule of Civil Procedure 56(c)(2),
“[a] party may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.” Fed. R. Civ. P. 56.

The contested exhibits are interview reports from 16 witness interviews conducted by
Nebraska State Patrol (“NSP”) Investigator Clint Elwood. Investigator Elwood interviewed
numerous potential witnesses during the 2012 investigation of Defendant Campana. Each of
the interviews were summarized into these short reports. Defendants object on the basis of
hearsay, arguing that these exhibits do not contain any factual findings of the NSP but rather
unsworn, summarized out-of-court statements. See Fed. R. Evd. 801(c).1 Plaintiff has not
responded to the defendants’ objection or arguments.

Under Rule 56(e), if a fact is not properly supported by evidence, the court may still
consider it for purposes of the motion only. Fed. R. Civ. P. 56(e)(2). “Hearsay is a statement,
other than one made by the declarant while testifying at trial or hearing, offered in evidence
to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). An out-of-court statement
offered only to show that the defendant was on notice, and not to prove the truth of the
matter asserted, is not hearsay. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 637 n.3 (8th
Cir. 2007). The court will consider the contested exhibits to the extent that they may be
interpreted as putting Defendants on notice that Campana may have presented a substantial
risk of harm to inmates.

Defendant additionally argues that although Plaintiff’s counsel submitted an
affidavit in support of the documents swearing the information within the exhibits were
correct and true, (see filing no. 16-1), under Rule 56 an affidavit “must be made on personal
knowledge, set out facts that would be admissible in evidence[.]” Fed. R. Civ. P. 56.
Defendant argues Plaintiff’s counsel does not have personal knowledge of the truth or
accuracy of the interviews or third party statements.
1

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The undisputed material evidence of record, viewed in the light most favorable to
Plaintiff, is as follows:

Defendant Samuelson was elected as Sheriff of Phelps County in 2011. As Sheriff,
his statutory job functions included oversight of the Phelps County Jail operations, as well as
other functions of the Sheriff’s Office, including investigating criminal conduct. (Filing No.
11 ¶ 1 at CM/ECF p. 7). Defendant Gregg is a Lieutenant with the Phelps County Sheriff’s
Office. She has been employed with Phelps County since 1999 and has served as jail
administrator since August 2001. As the jail administrator, Gregg manages the day-to-day
operations of the Phelps County Jail. Gregg is certified in jail management.

Campana was hired as a correctional officer at the Phelps County Jail on or around
April 21, 2010. Pursuant to Sheriff’s Office hiring practices, a criminal background check
was conducted before Campana was hired. The background check disclosed only a speeding
citation; no felony convictions. Campana’s job application and interview revealed work
experience as a public school janitor, assistant manager at Sun Theater, and providing a host
home for disabled persons with Mosaic. Gregg verified Campana’s past and present
employment. According to Gregg, Campana’s reference checks were positive, and nothing
about his background prompted any cause for concern. (Filing No. 11 ¶ 4 at CM/ECF pp. 6–
7). But Gerrard Erickson, a corrections officer who had formerly worked with Campana and
was a reference on Campana’s application, notified Gregg that Campana might “possibly
[have] problems working around females.” (Filing No. 16-4 at CM/ECF p. 1).
After being hired, Campana successfully completed the jail’s training program,
including instruction on appropriate staff-inmate communications, ethics, facility policies
and procedures, key control, and professionalism. (Filing No. 11 at CM/ECF p. 7). Campana
reviewed and agreed to abide by Phelps County’s personnel policies and codes of ethics
which prohibit employees from violating the law, require professionalism, and specifically
prohibit engaging in harassment or discriminatory acts. (Filing No. 11-2; Filing No. 11-7 at
CM/ECF p. 21; Filing No. 11-11.). And for each year of his employment, Campana
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completed four hours of required policy and procedure training and passed the yearly policy
exams. (Filing No. 11-7 at pp. 36, 77).

Campana was subject to performance evaluations every six months during his
employment at the jail. The performance evaluations assess multiple components of the
employee’s work, scoring each component from “1-Warning” to “5-Excellent,” (with the
middle ranking being “3-Satisfactory”). Campana received mostly satisfactory marks with a
few “4-very goods” on his first evaluation dated January 20, 2011. (Filing No. 11-7 at
CM/ECF pp. 39–41). The evaluation concluded that Campana could improve his work
performance by being “less chatty with inmates.” (Id. at CM/ECF p. 41). The marks on
Campana’s next evaluation, dated June 2, 2011, were again mostly satisfactory, but he was
given two “2-conditional” marks for his ability to “control post” and “professionalism.” (Id.
at CM/ECF pp. 63–65). Regarding professionalism, the evaluation stated: “Needs to watch
what he says over radio and out in the booking area. Have heard him curse over radio a
couple of times. I have also had to tell him to watch his mouth out in booking. Inmates can
hear our voices while in holding cells.” (Filing No. 11-7 at CM/ECF p. 65). Campana
received all satisfactory marks for his third evaluation dated November 17, 2011. (Filing No.
11-7 at CM/ECF p. 67–69). Under the section regarding judgment, his supervisor
commented “Doing ok here. Does need to use better judgment when speaking to or around
inmates. Limit time at female cell. Can open yourself up for a law-suite [sic].” (Filing No.
11-7 at CM/ECF p. 68). Regarding areas for improvement, his supervisor commented
“Watch what is said around inmates/remember your [sic] not here to be a friend, be friendly
but be professional.” (Filing No. 11-7 at CM/ECF p. 69). In May of 2012, Campana was
promoted to Corporal. As part of the promotion he was subject to a three month probationary
period to monitor his ability to perform supervisory duties.

On May 27, 2012, day shift correctional officer Lacey Stone sent an email to Gregg
concerning the actions of a female inmate, Tammy Knight. Stone’s email read

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Rita and I were watching the video from 104 on 05-25-2012 to figure out
when someone got out of bed. While we were watching the video’s for 05-212017 at 00:30 we noticed inmate tammy knight doing some very innapropriate
things infront of the camera on the table seat and on her bunk. We also noticed
that she has been getting up alot of night in just her Sports Bra and Boxers
which is uncalled for. I didnt know how you would like to address the issue? I
figured that maybe you might want to be notified about this issue. I’m not for
sure who was in control that night, but maybe they should pay a little more
attention or maybe they were? I don’t know not my place to pass judgement.
Just wanted you to be aware of what has and is going on some people have
showed concern about the issue.
(Filing No. 16-2 at CM/ECF p. 1, Filing No. 11-12 ¶ 6 at CM/ECF p. 3)(errors in original).
Stone’s email contained no reference to Campana.
In response to Stone’s email, Gregg reviewed the relevant surveillance video. (Filing
No. 11-2 ¶ 7 at CM/ECF p. 3). When the screen was normal size, Gregg could not discern
Knight’s conduct, but when she enlarged the screen, Gregg saw that Knight was
masturbating and did so for approximately 45 minutes. (Id.). Gregg also reviewed the
surveillance camera which partially shows inside the master control office. (Id.). She
identified Campana as the control officer on duty for the period of Knight’s conduct. Gregg
observed that Campana did not appear to be fixated on the monitors where Knight could
have been seen, nor did Gregg observe any behavior to suggest that Campana was watching
Knight on the video monitors. (Id.). Gregg observed a lot of movement in the control area
during this time period, with the two floor officers who were also on duty that night coming
into and out of the control office at least once during the pertinent time period. To Gregg, it
appeared that the officers on night shift duty, including Campana, were performing normal
duties, unaware of or ignoring Knight’s actions. (Id.). Gregg reasoned that Knight might not
have realized that she was in view of a camera and even if she knew where cameras were
placed, she reasonably could have thought her actions would not be seen by correctional
staff.
From Gregg’s professional experience, she knew it was very common for inmates to
masturbate in their cells, especially over the night shift when cellmates are sleeping. (Filing
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No. 11-2 ¶ 9 at CM/ECF p. 3). According to Gregg, correctional officers often become
desensitized to seeing inmates masturbate, and will permit the inmate privacy by ignoring the
activity, or the officer may simply tell the inmate to cease the activity, unless the inmate is
deliberately offending fellow inmates, or causing disruption. (Id.). Inmates are expected to
maintain decency, however an isolated instance of masturbation is not categorically
prohibited by jail rules that govern inmate behavior. Additionally, it would not normally
result in discipline simply because the act was seen by a correctional officer during
monitoring. (Id.).
Based on Gregg’s professional experience, she determined the email and informal
investigation did not supply any basis for corrective action against either Knight or any night
shift staff member. Gregg did not believe there was sufficient basis to open a formal
investigative file or investigate the matter further: She did not question Knight or Campana
regarding the incident.

Gregg sent an email to Samuelson on May 29, 2012, to notify him of what she had
done in response to Stone’s email. The notice indicated Gregg did not believe any night shift
officer engaged in misconduct. (Filing No. 11-2 ¶ 14 at CM/ECF p. 5). At the end of her
email, Gregg stated, “I am troubled by staff watching cameras, I will attempt to get more
information next time they are on.” (Id.). Gregg was referring to her concern that day shift
officers did not seem to have any legitimate reason to watch surveillance video from several
days before. It was Gregg’s impression that there was animosity between day shift and night
shift workers. After receiving Gregg’s email, Samuelson personally reviewed some the
relevant video and agreed with Gregg’s assessment that no disciplinary action was required.
(Filing No. 11-1 at CM/ECF p. 2).

Under Phelps County Jail policies and procedures, corrections staff members are
required to report any observed misconduct by other staff members. (Filing No. 11-2 ¶ 15 at
CM/ECF pp. 5–6). Gregg encouraged staff to comply with this policy and investigated all
such complaints. (Id.). However Gregg also discouraged false, unsupported, and/or purely
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vindictive reports by staff members against one another. (Id.). At no time did any
correctional officer at the jail provide a written report to Gregg or Samuelson regarding any
suspicion that Campana was engaging in sexual misconduct with inmates.

Around May of 2012, officer Stephanie Johnson verbally expressed a concern
regarding Campana to Gregg. (Filing No. 16-3). Johnson approached Gregg and asked to
rotate shifts because she no longer wanted to work with Campana. (Filing No. 16-3 at
CM/ECF p. 2). Johnson explained she was uncomfortable with the amount of time Campana
spent interacting with the female inmates. Johnson said while Campana was in the control
room, he would often request other corrections officers take over his position so that he may
go and speak with female inmates who had requested his assistance. (Filing No. 16-3 at
CM/ECF p. 2). Gregg told Johnson to write a report detailing the reasons she felt
uncomfortable working with Campana, and they would discuss the matter further. But
Johnson did not file a report.

Earlier that month, Johnson reported to corrections supervisor Christi Meyer that she
thought she had seen Campana place his arm around a female inmate. (Filing No. 20-3).
Meyer investigated Johnson’s claim by reviewing video footage and did not observe any
physical contact between Campana and the inmate. (Filing No. 20-3). When discussing
Meyer’s observations, Johnson admitted she must have been mistaken due to her indirect
view, and she withdrew her complaint. (Filing No. 20-3). Based on her investigation and
Johnson’s withdrawal, Meyer did not document Johnson’s complaint or the investigation.
(Filing No. 20-3 at CM/ECF p. 2). Johnson informed Gregg of this prior claim when
requesting the shift change. Gregg told Johnson to write a report concerning the claim if she
believed the matter should be investigated further: Johnson did not submit a report.
Johnson’s verbal reports to Gregg were never disclosed to Samuelson.

Plaintiff Ronda Marsh served a five-day sentence at the Phelps County Jail from June
22, 2012 to June 27, 2012. During her five-day incarceration, Marsh did not submit any
complaints to jail staff or management regarding being subjected to or having observed any
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sexual misconduct. Marsh was housed at the Phelps County Jail briefly on two prior
occasions; in December of 2011 and April of 2012. (See Filing Nos. 11-3 & 11-4). During
her past incarcerations, Marsh never reported being subjected to or witnessing any sexual
misconduct.

On July 11, 2012, Gregg returned a call to former inmate Mindi Baker. Baker served
time at the Phelps County Jail from July 1-5, 2012, and left a message for Gregg asking to
discuss some property she was missing following her release. At the end of the conversation,
Baker told Gregg she believed Campana “acted inappropriately with the girls.” (Filing No.
11-12 ¶¶ 21, 23 at CM/ECF p. 7–8). When asked for details, Baker described Campana’s
inappropriate conduct as giving candy to female inmates out of camera view, making kissing
gestures, asking her for a hug, and pinching the nipple of female inmate Marjory Northrop.
To the best of Gregg’s personal knowledge, the complaint from Baker on July 11,
2012, was the first time that anyone had complained of inappropriate sexual behavior by a
correctional officer at the Phelps County Jail during Gregg’s employment with the County.
(Filing No. 11-12 ¶ 22 at CM/ECF p. 7).
Gregg immediately advised Samuelson of Baker’s claim, and began to investigate by
attempting to contact former inmate Northrup, and by privately interviewing inmate, Laura
Rinehart. Rinehart informed Gregg that she had observed Campana touching female inmates
inappropriately while out of camera view. And Samuelson personally interviewed Rinehart
shortly after. That same day, Samuelson contacted Campana and advised him that he would
be on paid suspension pending an investigation into a complaint made against him.

Gregg and Samuelson reviewed all the video available from the previous 30 days that
showed Campana in the areas of the jail where females are housed. They did not see any
overtly sexual contact between Campana and any female inmate on the surveillance video.
However, Gregg and Samuelson were concerned by one portion of video which appeared to
depict some kind of physical contact between Campana and a female inmate while he was
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seated at a table with a group of female inmates. Another video segment prompted concern
because it showed Campana spending an unusual amount of time inside a cell in a relaxed
posture and conversing with several female inmates.

On July 13, 2012, Samuelson contacted the Nebraska State Patrol and requested they
take over the investigation. Campana was formally placed on administrative leave without
pay on July 17, 2012. Over the next two months, the NSP conducted interviews of current
and former female inmates and correctional staff members. The NSP investigation revealed
that outside of the view of surveillance cameras, Campana was using an emergency key to
access a side door which provided access into the female housing area, and Campana then
had multiple off-camera sexual contacts and other inappropriate contacts with female
inmates between approximately March and July of 2012, most frequently with inmate
Tammy Knight. (Filing No. 11-1 at CM/ECF p. 4). Knight later disclosed that Campana had
sexual contact with inmates within the field of view of the jail’s security cameras, (Filing No.
11-20 at CM/ECF p. 7), but hidden from actual viewing by obstacles such as the medication
cart. (Id.).

Campana resigned his employment by letter on September 28, 2012. At the time
Campana submitted his resignation, Samuelson had already decided to terminate Campana
based upon findings from the NSP investigation—Samuelson had prepared a termination
letter on September 27, 2012 which was under review of the County Attorney. Samuelson
accepted Campana’s resignation on October 1, 2012. Campana’s last actual work day was
July 10, 2012—the day before Baker made her complaint to Gregg.

On November 6, 2012, a criminal action was filed against Campana alleging eight
felony counts under Neb. Rev. Stat. § 28-322.02, and § 28-322.03, which make it a crime to
subject an inmate to sexual penetration or contact. Counts I, II, and V of the criminal
information alleged Campana subjected Plaintiff Marsh to sexual penetration or contact on or
about June 22, 2012 to June 27, 2012. Counts III, IV, VI, VII, and VIII alleged Campana
subjected other inmates to sexual penetration or contact, between March 22, 2012 and June
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27, 2012. Campana pled guilty to Counts VII and VIII which alleged he had sexual contact
with Tammy Knight and Marjory Northrop. As part of the plea agreement, all other Counts
of the criminal information were dismissed.
Plaintiff Marsh was deposed in Campana’s criminal case. In her sworn deposition,
Marsh identified one date that Campana subjected her to sexual contact in June of 2012.
Marsh stated she never filed any complaint about this incident. (Filing No. 11-19 at CM/ECF
pp. 8–9).

LEGAL ANALYSIS

Marsh alleges that Gregg and Samuelson failed to protect her from the substantial risk
of harm that Campana presented to herself and other inmates. (Filing No. 1-1). Gregg and
Samuelson assert they are entitled to qualified immunity.

Qualified immunity protects government officials from liability for civil damages if
their conduct did not violate “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Government officials are entitled to qualified immunity unless 1) plaintiff has “asserted a
violation of a constitutional right; (2) the alleged right is clearly established; and (3) there
exists a genuine issue of material fact as to whether the official would have known that his
alleged conduct would violate the plaintiff’s clearly established right.” Smithson v. Aldrich,
235 F.3d 1058, 1061 (8th Cir. 2000) (citations omitted). In other words, “qualified immunity
shields a defendant from suit if he or she could have reasonably believed his or her conduct
to be lawful ‘in light of clearly established law and the information [he or she] possessed.”
Id. (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “The qualified immunity
standard ‘gives ample room for mistaken judgments[.]’” Smithson, 235 F.3d at 1061
(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).

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Marsh alleges that Gregg and Samuelson’s conduct violated her Eighth and
Fourteenth Amendment rights. The parties disagree as to whether Marsh was a pretrial
detainee or a sentenced prisoner; that is, whether her claims arise under the Fourteenth or
Eighth Amendment. For purposes of our analysis, the distinction is irrelevant. The Eighth
Circuit has previously determined the Fourteenth Amendment provides detainees “at least as
many protections” as afforded to prisoners under the Eighth Amendment. Hott v. Hennepin
County, Minnesota, 260 F.3d 901, 905 (8th Cir. 2001). Accordingly, we analyze the
Fourteenth Amendment claims under the standards applied to prisoner Eighth Amendment
claims.
“[T]he Eighth Amendment’s prohibition against cruel and unusual punishment
requires prison officials to ‘take reasonable measures to guarantee’ inmate safety by
protecting them from [violence].” Young v. Selk, 508 F.3d 868, 871–72 (8th Cir. 2007)
(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)); see also Lenz v. Wade, 490 F.3d
991, 995 (8th Cir. 2007). A prison official’s “deliberate indifference” to a prisoner’s
“substantial risk of serious harm” is unreasonable and violates the Eighth Amendment.
Young, 508 F.3d at 872 (quoting Farmer, 511 U.S. at 828). The plaintiff must make a two
part showing to prove deliberate indifference: “The first requirement tests whether, viewed
objectively, the deprivation of rights was sufficiently serious. The second requirement is
subjective and requires the inmate to prove that the prison officials had a ‘sufficiently
culpable state of mind.’” Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008) (quoting
Farmer, 511 U.S. at 834).

Regarding the first requirement, it is beyond dispute that a sexual assault is
sufficiently serious to constitute a deprivation of Marsh’s constitutional rights. See Walton v.
Dawson, 752 F.3d 1109, 1119 (8th Cir. 2014).
Under the second requirement, “[a] prison official may be held liable . . . if he or she
knows that an inmate faces a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Coleman v. Rahija, 114 F.3d 778, 785 (8th
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Cir. 1997). An official can be held liable if he knows of a substantial risk of harm: “‘[A]
plaintiff is not required to allege and prove that the defendant . . . specifically knew about or
anticipated the precise source of harm.” Nelson v. Shuffman, 603 F.3d 439, 447 (8th Cir.
2010) (quoting Kahle v. Leonard, 477 F.3d 544, 551 (8th Cir. 2007)).
The defendant official must be both “‘aware of facts from which the inference could
be drawn that a substantial risk of serious harm exist[ed], and he must also draw the
inference.’” Pagels v. Morrison, 335 F.3d 736, 740 (8th Cir. 2003) (quoting Farmer, 511 U.S.
at 837) ; see also Norman v. Schuetzle, 585 F.3d 1097, 1105 (8th Cir. 2009)(“While a
factfinder may conclude that a prison official knew of a substantial risk from the fact that the
risk was obvious, . . . the prison official must still draw the inference.”) “This subjective state
of mind must be present before a plaintiff can be successful because only the unnecessary
and wanton infliction of pain implicates the Eighth Amendment.” Blades v. Schuetzle, 302
F.3d 801, 803 (8th Cir. 2002) (citation omitted). “This requisite state of mind is akin to
recklessness, which is ‘more blameworthy than negligence,’ yet less blameworthy than
purposefully causing or knowingly bringing about a substantial risk of serious harm to the
inmates.” Lenz, 490 F.3d at 995 (citing Farmer, 511 U.S. at 835, 839-40).

Government employees are personally liable for only their own misconduct. Parrish
v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). Therefore, the doctrine of qualified immunity
requires “an individualized analysis of each officer’s alleged conduct.” Walton, 752 F.3d at
1125. We address each prison official’s entitlement to qualified immunity individually.

1. Sheriff Gene Samuelson.

Sheriff Samuelson became Sheriff in 2011 and was not personally involved in the
hiring of Campana. And Samuelson does not generally become involved in personnel matters
concerning corrections staff or day-to-day incidents unless Gregg requests his assistance.
Apart from the Knight incident and Baker’s claim, Samuleson never received any reports,

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written or verbal, detailing inappropriate or suspicious conduct by Campana. And Samuelson
received no notice of Johnson’s verbal claims
Samuelson received Gregg’s email detailing the Knight incident on May 29, 2012.
The email described Gregg’s investigation and stated that she did not believe Campana or
any other night-shift officer had engaged in misconduct. Samuelson personally reviewed
some of the surveillance video from this event and agreed with Gregg’s assessment that no
disciplinary action was needed against staff or Knight. (Filing No. 11-1 at CM/ECF p. 2).
Plaintiff argues the Knight incident shows Samuelson had knowledge that Campana
presented a risk of sexual assault to inmates. But based upon Gregg’s email and Samuelson’s
own review of the video, Samuelson did not believe that Campana or any other officer had
engaged in misconduct.
Samuelson learned of Baker’s claim immediately after it was made. Baker’s claim
was the first time anyone made a complaint of sexual misconduct by a corrections officer
during his tenure. That same day, Samuelson suspended Campana’s employment; assisted in
reviewing jail camera footage; and personally spoke with Rinehart regarding the allegations.
Even though Samuelson and Gregg did not observe any overtly sexual contact in the videos,
they did not end the investigation: Campana remained on leave and Samuelson turned the
investigation over to the NSP on July 13, 2012—two days after the initial complaint. In
September, after receiving reports from the NSP investigation, Samuelson decided to
terminate Campana’s employment.
The evidence fails to show that before Baker’s claim, Samuelson was aware of facts
from which the inference could be drawn that Campana’s employment posed a substantial
risk of serious harm. Samuelson was only personally aware of the incident involving Knight,
even if it was enough to raise a possible inference that Campana posed a substantial risk of
harm to Knight or other inmates, Samuelson did not draw such an inference after reviewing
the evidence, including video evidence. That evidence supported his conclusion that no
misconduct had taken place. Even if the facts permit a reasonable jury to find that Samuelson
14

and Gregg should have more thoroughly investigated the incident, such by interviewing
either Knight or Campana, that finding is, as a matter of law, it is insufficient to support
deliberate indifference.
Once Samuelson became aware of Baker’s complaint, he took quick actions to
investigate: Campana was placed on leave; Samuelson personally questioned one of the
alleged victims; he assisted in the review of video; and he turned the investigation over to
another agency for further determination. Viewing the facts in a light most favorable to
Plaintiff, the court cannot find that Samuelson was deliberately indifferent or acted recklessly
in failing to protect Plaintiff.2

2. Lieutenant Penny Gregg.

Gregg was personally involved in the hiring process of Campana. She verified
Campana’s employment at Sun Theater by speaking with a manager there with whom she
was familiar—she did not speak to Suzy McConnell who was listed as a reference on
Campana’s application. (Filing No. 20-1 at CM/ECF p. 2). She also spoke with Erickson,
Campana’s former co-worker who was employed as a corrections officer. Erickson was
listed on Campana’s application as a reference. In his interview with NSP, Eriskon claimed
he had informed Gregg that Campana may have problems working with females. But there is
no evidence showing whether Erickson explained this comment and according to Gregg,
Campana’s application and reference checks were positive.

Marsh argues that Gregg had notice Campana posed a risk to inmates at the time of
his hiring because (1) Campana’s manager and application reference, Suzy McConnell, had
fired him from Sun Theater for watching pornography; and (2) his former theater co-worker,
2

The court notes that Marsh cites Neb. Rev. Stat. § 47-115 in her brief multiple times
to support her contention that as Sheriff Samuelson is ultimately responsible for misconduct
of Campana. Marsh did not allege a state law negligence claim within her complaint and
Neb. Rev. Stat. § 47-115 has no legal bearing on the determination of a claim arising under
42 U.S.C. § 1983.
15

Angela Robinson, informed Gregg she did not want to work the same shift as Campana when
she applied to be a corrections officer at the jail. (Filing No. 16 at CM/ECF pp. 4–9). Even
accepting these matters as true, both occurred after Campana was hired. Campana was still
working for Sun Theater when he was hired to work for Phelps County and there is no
evidence indicating when he was caught watching pornography and fired. (See filing no. 117 at CM/ECF p. 2). Additionally, there are no facts suggesting that Gregg or anyone at
Phelps County was informed of Campana’s removal from his employment with Sun Theater
or the reason for his removal. And as to Robinson’s concerns, her statement was made to
Gregg in November of 2012—years after Campana was hired and months after the
investigation had begun, (see filing no. 16-3 at CM/ECF p. 2; filing no. 16-6). There is no
evidence that Robinson made any statements to Gregg or Phelps County staff prior to
November of 2012. According to the evidence presented, neither of these after-the-fact
events would have placed Gregg on notice.
Throughout Campana’s employment, Gregg received Campana’s performance
evaluations. The evaluation comments indicated that Campana was talkative and friendly
with inmates, spent extra time at female cells, and used unprofessional language, (Filing No.
11-7 at CM/ECF pp. 41, 65, 68 & 69), but they were mostly satisfactory and mentioned
nothing indicating actual or suspected improper sexual contact. Two of the evaluations
suggested Campana had room to improve his professionalism and judgment and must spend
less time with female inmates, but these were ‘areas for improvement’ and were not deemed
to warrant discipline.
Gregg received notice of Johnson’s complaint in May of 2012. Johnson verbally
complained that she no longer wanted to work on the same shift as Campana due to the
amount of time he spent answering female inmates’ requests to talk in their cells. Gregg also
knew that Johnson claimed to have seen Campana place his arm around a female inmate, but
following an investigation, this claim was invalidated and withdrawn by Johnson. Gregg
offered to investigate both matters further if Johnson decided to file a report: Johnson did
not.
16

Regarding the Knight incident, Gregg treated the matter seriously and investigated the
claim. Based upon Gregg’s professional experience and review of the relevant video, Gregg
concluded that no misconduct had taken place.

Campana was employed as a corrections officer for over two years. But it is
undisputed that no inmate, including Marsh, communicated or complained that Campana was
engaging in inappropriate sexual behavior or harming or harassing inmates until Baker’s
claim on July 11, 2012. There similarly was never any written report by other corrections
officers concerning sexual misconduct or inappropriate behavior by Campana. Even if this
court were to consider all of the interview reports submitted by Plaintiff as evidence that
Campana often used sexually explicit language and told sexually charged stories, (see filing
nos. 16-4–16-13), there is no evidence showing that Gregg personally witnessed this conduct
or that written complaints were ever filed which would have placed Gregg on notice of
Campana’s sexual banter. And regardless, the court is not convinced notice of inappropriate
sexual banter equates with or provides notice of a risk of improper sexual contact.

The record contains no evidence that Gregg was aware of or ever received a claim or
complaint of sexual misconduct by Campana. Nor is there evidence that any other claims of
misconduct made against Campana were substantiated (until Baker’s claim). The concerns
addressed by Stone and Johnson were independently investigated and misconduct was not
found in either instance. The facts presented, taken in the light most favorable to Marsh, do
not permit a reasonable jury to find that Gregg acted recklessly and was subjectively aware
that Campana posed a risk of harm to inmates. See Farmer, 511 U.S. at 837.

Gregg and Samuelson are each entitled to qualified immunity. Summary judgment
will be granted on Plaintiff’s claims against Gregg and Samuelson in their individual
capacities.

17

Official Capacity Claims.

Marsh filed suit against Samuelson, Gregg, and Campana in their official capacities.
A claim against these governmental employees in their official capacity is, in reality, a claim
against Phelps County. See Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits
against persons in their official capacity are just another method of filing suit against the
entity.”). Phelps County moves for summary judgment on all claims.

A municipality can be liable under Section 1983 only if a municipal policy or custom
caused a plaintiff to be deprived of a federal right or if the municipality failed to adequately
train its employees. Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)
(citing City of Canton v. Harris, 489 U.S. 378, 385 (1989); Monell v. N.Y. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)).

Regarding her official capacity claims, Marsh alleges within her complaint:
42. The Defendants did not vigorously enforce and/or did not have a no contact policy
between inmates and correctional staff.
43. The Defendants failed to provide adequate training and/or supervision to prevent
sexual assaults by corrections officers on inmates.
44. The Defendants knew or should have known that security cameras in the facility
were improperly placed, and/or that aspects of the layout of the facility permitted
Campana to have unlimited, unmonitored access to prisoners placing them at an
unreasonable risk of harm.
(Filing No. 1-1 at CM/ECF p. 8). She further argues that the County has a lack of policy and
safeguards to ensure that sexual assaults do not occur.

1. County Policy or Custom.
Phelps County may be liable under Section 1983 if a “policy” or “custom” caused a
violation of Plaintiff’s constitutional rights. Doe By and Through Doe v. Washington Cnty.,
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150 F.3d 920, 922 (8th Cir. 1998) (citing Monell, 436 U.S. at 694). To be liable, “the
plaintiff must show not only that a policy or custom existed, and that it was casually related
to the plaintiff’s injury, but that the policy itself was unconstitutional.” Luckert v. Dodge
County, 684 F.3d 808, 820 (8th Cir. 2012)(citations omitted).
An “official policy” involves a deliberate choice to follow a course of action made
from among various alternatives by an official who has the final authority to establish
governmental policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St.
Louis Cnty., 901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986)). A governmental custom involves:
1)

The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;

2)

Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the
officials of that misconduct; and

3)

That plaintiff was injured by acts pursuant to the governmental entity’s
custom, i.e., that the custom was the moving force behind the
constitutional violation.

Jane Doe, 901 F.2d at 646. “The existence of a custom may be found in ‘persistent and
widespread . . . practices . . . which are so permanent and well settled as to have the force of
law.’” Thelma D. v. Board of Ed., 934 F.2d 929, 932 (8th Cir. 1991) (quoting Monell, 436
U.S. at 691) (citations omitted).
First, Marsh generally alleges that the County failed to ensure that ‘safe’ individuals
were hired for the position of corrections officer. (Filing No. 16 at CM/ECF p. 37). She also
claims the County failed to implement a policy and safeguards to protect inmates from sexual
assault. (Id.).

Phelps County policy requires that corrections officers be free of felony convictions
and remain so throughout employment. (Filing No. 11-2 at CM/ECF p. 1). Prior to hiring

19

Campana, Phelps County conducted a background check which revealed no criminal
convictions. (Filing No. 11-2 at CM/ECF p. 2). Gregg checked Campana’s references and
confirmed his job history and found nothing of concern. (Filing No. 11-2 at CM/ECF p. 2).
Erickson, a reference and former co-worker, told NSP in November 2012 that as one of
Campana’s references, he had informed Gregg that Campana may “possibly [have] problems
working around females,” but there is no record of whether Erickson clarified or provided
further information regarding this statement. (Filing No. 16-4 at CM/ECF p. 1).

Marsh argues the County knew Campana was dangerous at the time of his hiring
because (1) his manager and application reference, McConnell, had fired him from Sun
Theater for watching pornography; and (2) his former theater co-worker, Angela Robinson,
informed Gregg she did not want to work the same shift as Campana when she applied to be
a corrections officer at the jail. As discussed above, these events happened after Campana
was hired and therefore could not have affected the County’s determination in hiring
Campana.

The evidence presented, viewed in the light most favorable to Marsh, is not sufficient
to find that Phelps County had an unconstitutional custom or policy of hiring unsafe
employees nor is there evidence to find that this alleged custom caused Marsh’s injury.

Marsh additionally claims that Phelps County allowed the sexual assault to occur
through the County’s failure to have policies to protect inmates from sexual assault and
failure to have a specific “no contact” policy between inmates and corrections officers.

Phelps County policies require employees to abide by all laws. (Filing No. 11-11 at
CM/ECF pp. 3, 10). Nebraska state law prohibits sexual contact between correctional
officers and inmates, consensual or otherwise, and makes such conduct a felony. Neb. Rev.
Stat. § 28-322.02, & § 28-322.03. Additionally, policies for the jail include provisions that
corrections officer “will not degrade or intimidate inmates/detainees, show favoritism to
individual

inmates/detainees,

nor

gossip
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with

inmates/detainees

about

other

inmates/detainees or personnel[,]” (Filing No. 11-2 at CM/ECF p. 15), and that officers will
not engage in “behavior which conflicts with the interests of the jail facility.” (Filing No. 112 at CM/ECF p. 4). Phelps County corrections officers are subject to disciplinary action for
“immoral or indecent behavior during work hours on County property.” (Filing No. 11-11 at
CM/ECF p. 9). Overall, corrections officers were expected to maintain a professional
demeanor. (Filing No. 11-2 at CM/ECF pp. 4, 6; Filing No. 11-11 at CM/ECF p. 8).
Contrary to Marsh’s claims, the County was not constitutionally required to
specifically incorporate training and/or policies that prohibit corrections officers from
touching or assaulting inmates. See Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996)
(“In light of the regular law enforcement duties of a police officer, we cannot conclude that
there was a patently obvious need for the City to specifically train officers not to rape young
women”).

To protect inmates further, Phelps County had procedures in place for both inmates
and corrections officers to report inappropriate or illegal actions taken by a corrections
officer. (Filing No. 11-2 at CM/ECF p. 6, Filing No. 11-11 at CM/ECF p. 11, Filing No. 11-9
at CM/ECF pp. 1, 2–3 ). And there is no evidence to suggest Phelps County employees had a
custom of covering up allegations of employee misconduct or suppressing inmates’
complaints. To the contrary, the evidence shows that when Gregg, Samuelson, and other
supervisors received complaints of misconduct, they took steps to address and investigate the
claims. Since at least 2001, no inmate or corrections employee reported inappropriate sexual
conduct by a correctional officer at Phelps County Jail until Baker’s claim. (Filing No. 11-12
¶ 22 at CM/ECF p. 7).

Based on the above, there is insufficient evidence to find that Phelps County had an
unconstitutional custom or policy of allowing or failing to protect against sexual assault or
that this alleged custom caused Marsh’s injury.

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Finally, Marsh argues the County failed to have security cameras properly placed
throughout the jail thus allowing Campana to assault inmates out of camera view.

Phelps County policy provided for electronic surveillance through a video monitoring
system throughout the facilities. The Nebraska Minimum Jail Standards for Adult Facilities
advises against surveillance in certain areas of a jail to protect inmate privacy (Filing No.
11-16 at CM/ECF p. 1), and in early 2012, Phelps County Jail was found to be in full
compliance with Nebraska Jail Standards. (Filing No. 11-8 at CM/ECF p. 1).

Marsh provides no statements or arguments regarding the specific placement of
cameras that Marsh states was unconstitutional and the parties do not cite, nor can the court
find, law stating the constitution requires every part of a jail to be monitored with security
cameras. To the contrary, Nebraska administrative code advises against cameras in some
areas of a jail. 81 Neb. Admin Code § 15-006.17. The court also notes that at times,
Campana would engage in sexual misconduct with inmates in front of cameras by
purposefully obstructing the camera’s view with obstacles such as a medication cart. (Filing
No. 11-20 at CM/ECF p. 7).

Based upon the above, the court finds insufficient evidence to support Plaintiff’s
claim against the County based on an unconstitutional custom or policy, or that alleged
policy deficiencies violated her rights and caused the sexual assault.

2. Inadequate Training.
“[A] local government may be subject to § 1983 liability for ‘inadequate training of
its employees.’” Parrish v. Ball, 594 F.3d at 997 (quoting City of Canton v. Harris, 498 U.S.
378, 388 (1989)). Inadequate training occurs when
(1) the county’s ... training practices were inadequate; (2) the county was
deliberately indifferent to the rights of others in adopting them, such that the
“failure to train reflects a deliberate or conscious choice by the county;” and

22

(3) an alleged deficiency in the . . . training procedures actually caused the
plaintiff’s injury.
Parrish, 594 F.3d at 997 (citations omitted). To satisfy this standard, the plaintiff must
demonstrate that “the need for more or different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that the policymakers of the county
can reasonably be said to have been deliberately indifferent to the need.” City of Canton, 489
U.S. at 390. In other words, the plaintiff must “demonstrate that the county had notice that its
procedures were inadequate and likely to result in a violation of constitutional rights.”
Andrews, 98 F.3d at 1076.

Other than the legal conclusion provided in the complaint, Marsh provides no facts or
evidence to show that Phelps County failed to provide adequate training to its employees.
Evidence provided by the defendants shows that the county provided training of its
employees upon hiring, including a specific course on ethical behavior for corrections
officers, (filing no. 11-7 at CM/ECF pp. 56–62, & 78), and required at least four hours of
review training each year of employment. (Filing No. 11-7 at CM/ECF pp. 36, 77). And
Baker’s complaint was the first complaint of sexual misconduct in Gregg’s ten-year tenure as
jail administrator. (Filing No. 11-12 ¶ 22 at CM/ECF p. 7). There is no evidence presented
showing Phelps County had notice that its training was so inadequate that a sexual assault of
inmates was likely to occur. Marsh has failed to present evidence supporting a genuine issue
of fact concerning inadequate training by Phelps County.

Accordingly,

IT IS ORDERED:

1)

The Motion for Summary Judgment, (Filing No. 10), filed by Samuelson and

Gregg in their individual capacities, and by Defendant Phelps County, including
Samuelson and Gregg in their official capacities, is granted in its entirety.

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2)

Plaintiff’s claims against Campana in his individual capacity remain.

3)

A telephonic conference with the undersigned magistrate judge will be held on

December 20, 2016 at 11:45 a.m. to discuss further case progression. To participate
in the call,
Dial 1-877-336-1828.
Enter the access code 5957780, then hit the # key.
Enter the security code: 3032
Press (1) to accept. Press (2) to re-enter.
4)

The clerk shall mail a copy of this order to Louis P. Campana, Jr., 311 E. 3rd.

Street, Apt. 7, Grand Island, Nebraska, 68801. (See Filing Nos. 21 and 22).

December 8, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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