Enyart v. Karnes et al

Filing 195

REPORT AND RECOMMENDATION re 192 MOTION for Summary Judgment: The Magistrate Judge RECOMMENDS that Defendants' Motion be DENIED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 9/26/2013. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, Jr.,
Plaintiff,
vs.

Case No. 2:09-cv-687
Judge Smith
Magistrate Judge King

SHERIFF JIM KARNES, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendant
Daniel Thacker and Daniel Waldren’s Motion for Summary Judgment
(“Defendants’ Motion”), Doc. No. 192, Plaintiff’s Response in
Opposition to [Defendants’ Motion], Doc. No. 193, and defendants’
reply, Doc. No. 194.

For the reasons that follow, it is RECOMMENDED

that Defendants’ Motion be DENIED.
I.

Background
Plaintiff, a state inmate proceeding without the assistance of

counsel, brings this action under 42 U.S.C. § 1983, alleging that he
was denied due process in connection with an alleged assault by other
inmates while plaintiff was detained in the Franklin County jail.
The Amended Complaint, Doc. No. 76, which is signed under penalty
of perjury, alleges that plaintiff was arrested by the Columbus Police
on August 11, 2007 for “pandering and voyeurism”1 and taken to Franklin

1

Plaintiff was actually charged with two felony counts of “illegal use of a
minor” in violation of R.C. § 2907.323. Affidavit of Major Michael K.
Herrell, Doc. No. 52-1, at ¶ 7; Doc. No. 52-2.

County Corrections Center I (“FCCCI”).

Id. at ¶¶ 10-11.

After

spending the night in a holding cell, plaintiff was moved to the fifth
floor at FCCCI.

Id. at ¶¶ 11-12.

Defendant Deputy Dan Waldren

allegedly walked plaintiff to his cell and said: “[W]hen the other
inmates find out what you are in for you will be a dead little sick
fuck – there won’t be any protection here for you.”

Id. at ¶ 12.

Later that day, defendant Waldren, who was allegedly accompanied by
defendant Deputy Daniel Thacker, see Affidavit of Richard E. Enyart
Jr. (“Enyart Affidavit”), attached to Doc. No. 183, at ¶¶ 4-9,
allegedly “came to [plaintiff’s] cell, yelled out [plaintiff’s] name
and said ‘the media wants to interview you about those little kids you
molested.’”

Amended Complaint, ¶ 13.

“Immediately after [defendants]

left,” plaintiff “was viciously attacked by nine of the ten inmates in
[his] cell.”

Id.; Enyart Affidavit, ¶¶ 4-5.

Defendants Waldren and Thacker allegedly returned to plaintiff’s
cell a few minutes after the assault.

Id.

Defendant Waldren ordered

plaintiff out of the cell and said: “You look like shit and smell like
piss; what happened did you fall off your bunk[?]”

Id.

Plaintiff was

unable to produce his “county issued items” because they were “taken
by other inmates,” so defendant Waldren “shut the gate and left with
[defendant] Thacker.”

Id.

Plaintiff was allegedly attacked again

“[a]s soon as [defendants] left.”

Id.

Shortly thereafter, the two

defendant deputies returned to the cell and took plaintiff to the
infirmary.

Id.

Plaintiff’s injuries were photographed and he was

taken to the hospital and treated for injuries.

Id. at ¶¶ 14-16.

few weeks after the alleged assault, plaintiff attempted to utilize

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A

the grievance process three times, but his attempts were “ignored.”
Id. at ¶¶ 17-18.
The Amended Complaint asserts claims against the Franklin County
Sheriff, employees of the Franklin County Sherriff’s Office, and
Franklin County.
Thacker remain.

Only the claims against defendants Waldren and
See Opinion and Order, Doc. No. 92 (dismissing the

Franklin County Sherriff); Opinion and Order, Doc. No. 112 (dismissing
Franklin County); Opinion and Order, Doc. No. 148 (dismissing
defendant Mandy Miller).

On December 17, 2012, defendant Thacker

filed a motion to dismiss or, in the alternative, for summary
judgment, Doc. No. 180.

The Court denied that motion without

prejudice to renewal, noting that the discovery completion date had
not yet passed and that plaintiff was seeking additional discovery
pursuant to Fed. R. Civ. P. 56(d).

Opinion and Order, Doc. No. 189

(adopting without objection Report and Recommendation, Doc. No. 187).
Discovery closed on June 30, 2013. Scheduling Order, Doc. No. 178.
Defendant’s Motion was filed on July 30, 2013, i.e., one day prior to
the deadline for filing dispositive motions.
No. 178.
II.

Scheduling Order, Doc

This matter is now ripe for consideration.

Standard
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “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(a).

Pursuant to Rule 56(a), summary

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judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”

Id.

In making this determination, the evidence “must be viewed

in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H.

Summary judgment will not lie

if the dispute about a material fact is genuine, “that is, if the
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

However, summary judgment is appropriate if the opposing

party “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.”
477 U.S. 317, 322 (1986).

Celotex Corp. v. Catrett,

The “mere existence of a scintilla of

evidence in support of the [opposing party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].”

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at

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trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
III. Discussion
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

Section 1983 merely provides a vehicle for

enforcing individual rights found elsewhere and does not itself
establish any substantive rights.

See Gonzaga Univ. v. Doe, 536 U.S.

273, 285 (2002). A prima facie case under § 1983 requires evidence of
(1) conduct by an individual acting under color of state law that (2)
causes (3) the deprivation of a right secured by the Constitution or
laws of the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749

F.2d 1199, 1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S.
527, 535 (1981)).

Liability based on a theory of respondeat superior

is not cognizable under § 1983.

See Turner v. City of Taylor, 412

F.3d 629, 643 (6th Cir. 2005); Hays v. Jefferson Cnty., Ky., 668 F.2d
869, 874 (6th Cir. 1982).

In order to be held liable under § 1983, a

supervisor must have either “encouraged the specific incident of
misconduct or in some other way directly participated in it.”
412 F.3d at 643.

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Turner,

In the case presently before the Court, plaintiff alleges that,
while incarcerated as a pre-trail detainee at FCCCI, he was assaulted
by other inmates as a result of defendants’ deliberate indifference to
his safety needs.

Plaintiff has sued defendants Waldren and Thacker

in their individual and official capacities.

Amended Complaint, ¶ 8.

A claim brought against a government employee in his individual
capacity seeks to hold the employee personally liable for actions
taken under color of state law.
(1985).

Kentucky v. Graham, 473 U.S. 159

However, a claim brought against a government employee in his

or her official capacity is the equivalent of a claim brought against
the governmental entity itself, in this case, Franklin County.

Id. at

165-66 (quoting Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 n.55
(1978)).

The Court dismissed Franklin County as a defendant on June

8, 2011, for failure to state a claim upon which relief can be
granted.

Opinion and Order, Doc. No. 112.

Plaintiff’s claims against

defendants Waldren and Thacker in their official capacity cannot,
therefore, proceed.

The Court will now address plaintiff’s remaining

individual capacity claims.
The Amended Complaint alleges that defendants Waldren and Thacker
violated plaintiff’s Eighth Amendment rights2 by making other
prisoner’s aware of plaintiff’s criminal charges, by failing to
protect plaintiff from known risks posed by other inmates, and by
2

As a pretrial detainee at the time of the allege acts, plaintiff’s claims
actually arise under the Due Process Clause of the Fourteenth Amendment;
however, plaintiff’s claims are analyzed by reference to the standard of the
Eighth Amendment, which is applied to pretrial detainees through the
Fourteenth Amendment Due Process Clause. See Essex v. Cnty. of Livingston,
518 F. App’x 351, 353 n.2 (6th Cir. 2013); Ford v. Cnty. of Grand Traverse,
535 F.3d 483, 495 (6th Cir. 2008); Lucas v. Nichols, 181 F.3d 102 (6th Cir.
Apr. 23, 1999).

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failing to remove plaintiff from his cell after he was assaulted.
Amended Complaint, ¶¶ 21-27.

See

Defendants move for summary judgment on

the basis of qualified immunity.
The doctrine of qualified immunity provides that, in civil suits
for monetary damages, government officials performing discretionary
functions are generally shielded from liability for monetary damages
“unless the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.”
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (citing Ashcroft v.
al-Kidd, 131 S.Ct. 2074, 2080 (2011)).

“Thus, a defendant is entitled

to qualified immunity on summary judgment unless the facts, when
viewed in the light most favorable to the plaintiff, would permit a
reasonable juror to find that: (1) the defendant violated a
constitutional right; and (2) the right was clearly established.”
Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011) (citing Pearson v.
Callahan, 555 U.S. 223 (2009)).

A court may exercise discretion in

determining which prong of the test it will first address in light of
the circumstances of the case.

Pearson, 555 U.S. at 236.

“Furthermore, ‘prison officials who actually knew of a substantial
risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was
not averted.’”

Bishop, 636 F.3d at 765 (quoting Farmer v. Brennan,

511 U.S. 825, 844 (1994)).
To avoid summary judgment on the basis of qualified immunity, a
plaintiff must establish facts sufficient for a reasonable jury to
determine that defendants violated a constitutional right.

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“To raise

a cognizable constitutional claim for deliberate indifference to an
inmate's safety, an inmate must make a two-part showing: (1) the
alleged mistreatment was objectively serious; and (2) the defendant
subjectively ignored the risk to the inmate's safety.”
F.3d at 766 (citing Farmer, 511 U.S. at 834).

Bishop, 636

See also Leary v.

Livingston Cnty., 528 F.3d 438, 442 (6th Cir. 2008) (citing Farmer,
511 U.S. at 834).

Plaintiff has satisfied these requirements.

Objectively, the harm facing plaintiff was sufficiently serious.
Defendant Waldren, who plaintiff contends was accompanied by defendant
Thacker, see Enyart Affidavit, ¶¶ 4-9, allegedly “came to
[plaintiff’s] cell, yelled out [plaintiff’s] name and said ‘the media
wants to interview you about those little kids you molested.’”
Amended Complaint, ¶ 13.

Defendant Waldren allegedly confirmed that

other inmates’ knowledge of the charges against plaintiff created an
objectively serious risk of harm by stating: “[W]hen the other inmates
find out what you [i.e., plaintiff] are in for you will be a dead
little sick fuck – there won’t be any protection here for you.”
at ¶ 12.

Id.

Defendant Waldren denies characterizing plaintiff as a child

molester, Affidavit of Daniel Waldren, attached to Defendants’ Motion
as Doc. No. 192-1, at ¶ 8, defendant Thacker denies being aware of any
such statement by defendant Waldren, Affidavit of Daniel Thacker, Doc.
No. 180-1, at ¶ 8, and defendants argue that plaintiff has not
presented sufficient evidence to establish that other inmates heard
the alleged statement, Defendants’ Motion, p. 14.

Noevertheless,

plaintiff has alleged facts in the verified complaint that, when taken
as true, raise an issue of fact as to whether the failure to protect

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plaintiff from risk of harm was sufficiently serious.

See Leary, 528

F.3d at 442 (finding objectively serious the harm facing an inmate
plaintiff when deputies told two inmates that the plaintiff had been
charged with raping a nine-year-old girl).
To establish the subjective component of a “constitutional
violation based on failure to protect, a plaintiff . . . must show
that prison officials acted with ‘deliberate indifference’ to inmate
health or safety.”
at 834).

Bishop, 636 F.3d at 766 (quoting Farmer, 511 U.S.

An official is deliberately indifferent if he or she “knows

of and disregards an excessive risk to inmate health or safety; 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.”

Farmer, 511 U.S. at 837.

“[A] factfinder may

conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.”

Id. at 842.

“However, a prison

official who was unaware of a substantial risk of harm to an inmate
may not be held liable under the Eighth Amendment even if the risk was
obvious and a reasonable prison official would have noticed it.”
Bishop, 636 F.3d at 767 (citing Farmer, 511 U.S. at 841-42).

Where,

as here, multiple defendants assert qualified immunity as a defense,
courts must consider whether each individual defendant had a
sufficiently culpable state of mind.

Id. (“The district court erred

in this case by failing to evaluate the liability of each Deputy
individually.”) (citing Phillips v. Roane Cnty., 534 F.3d 531, 541
(6th Cir. 2008) (“Where . . . the district court is faced with
multiple defendants asserting qualified immunity defenses, the court

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should consider whether each individual defendant had a sufficiently
culpable state of mind.”); Garretson v. City of Madison Heights, 407
F.3d 789, 797 (6th Cir. 2005)).
As to defendant Waldren, the statements he allegedly made show
that he was “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exist[ed]” and that he “dr[ew]
the inference.”

Farmer, 511 U.S. at 837.

Once other inmates learned

of the nature of the charges against plaintiff, defendant Waldren had
reason to believe that plaintiff would need “protection,” see Amended
Complaint, ¶ 12 (“[W]hen the other inmates find out what you [i.e.,
plaintiff] are in for you will be a dead little sick fuck – there
won’t be any protection here for you.”), and he allegedly nevertheless
persisted in informing plaintiff’s cellmates of plaintiff’s charges.
See id. at ¶ 13.

As discussed supra, defendants have presented

evidence contrary to the allegations in the verified complaint and the
averments in plaintiff’s affidavit.

There is also conflicting

evidence regarding whether defendant Waldren took reasonable steps to
protect plaintiff from the known substantial risk of serious harm.
There therefore exists a genuine issue of material fact regarding
whether defendant Waldren had a sufficiently culpable state of mind.
See Leary, 528 F.3d at 442 (denying summary judgment based on
qualified immunity where the defendant deputy told inmates about the
plaintiff’s charges with reason to believe the plaintiff would need
protection after the inmates found out about the charges).
As to defendant Thacker, plaintiff has presented evidence that
defendant Thacker “did not speak,” but “was present at all times” when

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defendant Waldren made the alleged statements and visited plaintiff’s
cell before and after both alleged assaults.
9.

Enyart Affidavit, ¶¶ 4-

Notably, plaintiff avers that defendant Thacker heard defendant

Waldren tell other inmates that plaintiff had molested children and
that this defendant was with defendant Waldren after the first alleged
assault when defendant Waldren “acknowledged” plaintiff’s injuries,
“laughed” at plaintiff, and then returned plaintiff to the same cell
in which he was allegedly assaulted.
13.

See id.; Amended Complaint, ¶

Although defendants have proffered evidence in stark contrast to

that presented by plaintiff, the Court must accept as true the
contentions set forth in plaintiff’s pro se, verified complaint and
sworn affidavit.

If plaintiff’s allegations are accepted as true, a

reasonable jury could find that defendant Thacker knew of and
disregarded a substantial risk of serious harm to plaintiff.

See

Farmer, 511 U.S. at 842 (“Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the
risk was obvious.”) (citations omitted).
Furthermore, a detainee’s right to be free from the deliberate
indifference of jail officials is clearly established.

The United

States Supreme Court and the United States Court of Appeals for the
Sixth Circuit have held that “prison officials have a duty . . . to
protect prisoners from violence at the hands of other prisoners.”
Farmer, 511 U.S. at 833 (internal quotation marks and citation

11

omitted); Bishop, 636 F.3d at 766; Leary, 528 F.3d at 442.

See also

Doe v. Bowles, 254 F.3d 617, 620 (6th Cir. 2001); Walker v. Norris,
917 F.2d 1449, 1453 (6th Cir. 1990).
Based on the foregoing, the Court finds that the facts alleged by
plaintiff and sworn to in his affidavit, if proven, could constitute a
violation of a constitutional right that was well established at the
time the events at issue in this case are alleged to have occurred.
The Court therefore cannot conclude that defendants are entitled to
summary judgment on the basis of qualified immunity.

It is therefore

RECOMMENDED that Defendants’ Motion, Doc. No. 192, be DENIED.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of

12

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

September 26, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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