Guerry v. Frakes et al

Filing 55

MEMORANDUM AND ORDER - Defendants' Motion for Judgment on the Pleadings (Filing No. 41 ) on the basis of qualified immunity is denied without prejudice to reassertion in a motion for summary judgment. Guerry's Motion for Reconsiderat ion (Filing No. 52 ) and Objection to Defendants' Motion for Judgment on the Pleadings (Filing No. 54 ) are denied as moot. An amended progression order will be entered in accordance with this memorandum and order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN FRANK GUERRY,
Plaintiff,

8:15CV323

vs.
SCOTT FRAKES, Director; BRIAN
GAGE, Warden; GUIFFE, Case
Worker; and THOMPSON, Case
Worker;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff Brian Frank Guerry (“Guerry”), currently an inmate at the Omaha
Correctional Center, was an inmate at the Tecumseh State Correctional Center
(“TSCI”) during a prison riot that occurred at TSCI on May 10, 2015. Guerry filed
suit against Defendants Scott Frakes (“Frakes”), Director of the Nebraska
Department of Correctional Services, Brian Gage (“Gage”), Warden of TSCI,
Chelsea Guiffre (“Guiffre”), a unit manager, and Daniel Thompson (“Thompson”),
a case worker, in their individual capacities under 42 U.S.C. § 1983, alleging
Eighth Amendment failure-to-protect claims. (Filing No. 1.)1 Defendants have
moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the basis
of qualified immunity. (Filing Nos. 41, 42.) For the reasons that follow, the court
will deny Defendants’ Motion without prejudice to reassertion in a motion for
summary judgment.

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Although Guerry’s Complaint alleges additional claims, these are the
claims that the court determined could proceed after initial review and Defendants’
Motion to Dismiss. (See Filing Nos. 13, 33.)

I. BACKGROUND
Plaintiff alleges he resided in the protective custody unit of the Tecumseh
State Correctional Institution (“TSCI”) on May 10, 2015. Plaintiff claims he
resided in the protective custody unit because he is a sex offender and fears
violence from gangs within general population based on an assault he suffered
from them in 2013. (Filing No. 1 at CM/ECF p. 4.)
At approximately 4:00 p.m. on this date, Plaintiff began to suffer from
smoke inhalation. He called officers in the unit’s “control bubble” for help. At this
time, the control bubble was staffed by three jail officials, including Guiffre2 and
Thompson. Plaintiff alleges Guiffre and Thompson remotely opened some cell
doors in the unit, but not others. Plaintiff’s cell door was among those opened.
(Id.)
Plaintiff exited his cell and called out for help, but Guiffre and Thompson
were no longer in the control bubble. (Id.) He proceeded to go to the “small yard,”
where prison staff had instructed protective-custody inmates to go during a fire, but
the door to the small yard was locked. Instead, Guiffre and Thompson had
unlocked the door to the “Bigger fence in area yard,” which allowed generalpopulation inmates, including gang members, to enter the unit. (Id. at CM/ECF pp.
5, 13.) For the next nine or so hours, general population inmates entered the
protective-custody unit, harassed protective-custody inmates, and started fires. The
general population inmates had access to the control bubble. During this time,
Plaintiff and ten other inmates locked themselves into a cell. Plaintiff alleges he
suffered approximately 10 hours of smoke inhalation. (Id. at CM/ECF pp. 6-7.)
Law enforcement arrived at approximately 2:00 a.m. the following morning and
provided assistance. (Id. at CM/ECF p. 7.)

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Guerry refers to Defendant Guiffre as “Guiffe” in his Complaint.
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Plaintiff alleges prison staff immediately returned him to his cell, and did not
treat him for smoke inhalation. Following the prison riot, Plaintiff “ask[ed] for
days to be seen by medical,” but he was advised there would be no inmate
movement. Finally, on June 3, 2015, Plaintiff received medical attention. (Id.)
Guerry filed grievances with prison officials. (Id. at CM/ECF pp. 17-20.)
The following response is attached to Guerry’s Complaint:
You contend while housed at Tecumseh State Correctional Institution
(TSCI) that during the May 10, 2015 TSCI disturbance, TSCI staff
failed to protect Protective Custody inmates by abandoning their posts
and leaving Protective Custody inmates to be victimized by General
Population inmates. During the time period you mention in your
Grievance, TSCI staff was busy working through a significant
emergency situation. TSCI inmate and staff safety was an area of
primary concern during the entire period surrounding the May 10,
2015 disturbance. The May 10, 2015 TSCI disturbance ultimately
impacted all aspects of facility operations in some way. TSCI staff
made every effort to provide the best environment possible
considering the circumstances and difficulties created by the May 10,
2015 incident.
(Id. at CM/ECF p. 20.)
II. STANDARD OF REVIEW
“Judgment on the pleadings is appropriate where no material issue of fact
remains to be resolved and the movant is entitled to judgment as a matter of law.”
Minch Family LLLP v. Buffalo–Red River Watershed Dist., 628 F.3d 960, 965 (8th
Cir. 2010) (citing Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)).
This is the same standard used to address a motion to dismiss for failure to state a
claim under Rule 12(b)(6). Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009).
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To survive a motion to dismiss, the factual allegations in a complaint,
assumed true, must suffice “to state a claim to relief that is plausible on its face.”
Northstar Indus., Inc. v. Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint need not include
detailed factual allegations, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” C.N. v. Willmar Pub.
Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629–30 (8th Cir. 2010) (quoting
Twombly, 550 U.S. at 555). Instead, the complaint must set forth “enough facts to
state a claim to relief that is plausible on its face.” Id. at 630 (citing Twombly, 550
U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation
marks omitted). “Courts must accept ... specific factual allegations as true but are
not required to accept ... legal conclusions.” Outdoor Cent., Inc. v.
GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v.
Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010)) (internal quotation marks
omitted). When ruling on a defendant's motion to dismiss, a judge must rule “on
the assumption that all the allegations in the complaint are true,” and “a wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and ‘that a recovery is very remote and unlikely.’”
Twombly, 550 U.S. at 555, 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). The complaint, however, must still “include sufficient factual allegations

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to provide the grounds on which the claim rests.” Drobnak v. Andersen Corp., 561
F.3d 778, 783 (8th Cir. 2009).
III. QUALIFIED IMMUNITY STANDARDS
“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. Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law. Whether an official protected
by qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was
taken.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (internal
quotes and citations omitted).
Determining the question of qualified immunity involves the following twostep inquiry: (1) whether the facts shown by the plaintiff make out a violation of a
constitutional or statutory right; and (2) whether that right was clearly established
at the time of the defendant's alleged misconduct. Santiago v. Blair, 707 F.3d 984,
989 (8th Cir. 2013). Courts may address either prong of the analysis first, Pearson
v. Callahan, 555 U.S. 223, 236 (2009), and “the defendants are entitled to qualified
immunity unless the answer to both of these questions is yes.” McCaster v.
Clausen, 684 F.3d 740, 746 (8th Cir. 2012).
IV. DISCUSSION
The allegations in this matter are substantially similar to those in Clayborne
v. Frakes, Case No. 8:15CV198 (D. Neb. October 27, 2016), a case arising from
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the same prison riot. The court granted several of the current defendants qualified
immunity in Clayborne. (Filing No. 57, Clayborne, Case No. 8:15CV198.)
However, the court is mindful that, in Clayborne, it granted the defendants
qualified immunity based upon a motion for summary judgment. The issue, here, is
whether Guerry’s Eighth Amendment failure-to-protect claims against Defendants
can survive a motion for judgment on the pleadings on the basis of qualified
immunity.
The Eighth Amendment prohibits the government from engaging in cruel
and unusual punishment, which requires that prison officials take reasonable
measures to protect inmates from violence from other inmates. See Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994). In order to make out an Eighth
Amendment violation “the offending conduct must be wanton.” Nelson v. Corr.
Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009) (quoting Wilson v. Seiter, 501 U.S.
294, 302 (1991) (emphasis in the original)). The word “wanton[ ] does not have a
fixed meaning” and its meaning in the Eighth Amendment context depends upon
the circumstances in which the alleged violation occurs. Id. Normally, the Eighth
Amendment standard for conditions of confinement and medical care is whether
the defendant acted with “deliberate indifference.” See id. (citing Wilson, 501 U.S.
at 303). In cases involving prison riots, however, wantonness is demonstrated by
acting “maliciously and sadistically for the very purpose of causing harm.” Id.
(quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). This more stringent
standard “does not insulate from review actions taken in bad faith and for no
legitimate purpose, but it requires that neither judge nor jury freely substitute their
judgment for that of officials who have made a considered choice.” Whitley, 475
U.S. at 322.
According to Guerry’s allegations, which the court must accept as true,
Defendants left him with a Hobson’s Choice when they opened the door to the
yard with general population inmates. He could lock himself in his cell to avoid
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another assault from gang members amongst the general population inmates but
risk smoke inhalation. Alternatively, he could exit his cell to avoid the smoke
inhalation but risk another assault from gang members amongst the general
population inmates. Guerry’s allegations suggest that, in order to protect his health
and safety, all Defendants had to do was open the door to the “small” yard instead
of the “bigger” yard. The court cannot say, at this juncture, that such facts could
not support an Eighth Amendment failure-to-protect claim as a matter of law.
For instance, the court does not have evidence that Guiffre and Thompson
exited the control bubble for their own safety.3 The court does not have evidence
about the operation of the control bubble or the operation of the yard doors. Nor
does the court have any evidence why opening the protective-custody cells and
opening the “bigger” yard was accomplished without also opening the door to the
“small” yard where prison staff had instructed protective-custody inmates to go
during a fire. If the door to the “small” yard was left locked so protective-custody
inmates could be preyed upon by general population inmates or suffer smoke
inhalation in their cells in order to avoid assault, then such action would have been
done “maliciously and sadistically for the very purpose of causing harm.” Still
further, the court does not have evidence about the circumstances that prison
officials faced that prevented Guerry’s rescue for 10 hours.
In short, although the standard is high in a prison riot setting, the court
cannot know without evidence whether Defendants acted “maliciously and
sadistically for the very purpose of causing harm” or whether they made “a
considered choice.” In a case of this complexity as evidenced by the prisoner’s
Complaint and reasonable inferences drawn therefrom, Defendants have pushed
Fed. R. Civ. P. 12(c) beyond the breaking point.

3

In Clayborne, the court specifically acknowledged that the evidence
showed Defendants evacuated the control center for their own safety.
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IT IS THEREFORE ORDERED that:
1.
Defendants’ Motion for Judgment on the Pleadings (Filing No. 41) on
the basis of qualified immunity is denied without prejudice to reassertion in a
motion for summary judgment.
2.
Guerry’s Motion for Reconsideration (Filing No. 52) and Objection to
Defendants’ Motion for Judgment on the Pleadings (Filing No. 54) are denied as
moot.
3.
An amended progression order will be entered in accordance with this
memorandum and order.
Dated this 22nd day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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