Gossard v. Warden Madison Correctional Institution et al

Filing 31

REPORT AND RECOMMENDATION that 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be denied. Objections to R&R due within fourteen days. Signed by Magistrate Judge Terence P. Kemp on 3/21/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:
Case No. 2:14-cv-1842

Plaintiff,

:

v.

:
:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Warden, Madison Correctional
Institution, et al.

:

Defendants.

:
REPORT AND RECOMMENDATION

Plaintiff Don Gossard, an inmate at the Madison Correctional
Institution, filed this action under 42 U.S.C. §1983 alleging
violations of his constitutional rights as a result of the
conduct of defendants, Warden of the Madison Correctional
Institution, Mr. Scales and Ms. Ester.

Mr. Gossard’s claims

against the Warden were dismissed in a Memorandum Opinion and
Order filed on July 24, 2015 (Doc. 18).

That same order denied a

motion to dismiss filed by Defendant Scales.

Defendant Ester has

now moved to dismiss the complaint, and the motion has been fully
briefed.

For the following reasons, the Court will recommend

that Defendant Ester’s motion to dismiss be denied.
I.

Factual Background

Mr. Gossard alleges that in 2014, while he was an inmate at
the Madison Correctional Institution, Defendants failed to
protect him from an assault by his cell mate.

According to Mr.

Gossard, his cell mate was mentally ill, delusional, and known to
prison officials to be dangerous.

Some time prior to the assault

Mr. Gossard approached Ms. Ester, the manager of his unit,
explained the problem to her, and requested that the cell mate be
moved to another cell.

Ms. Ester informed him that there was a

new Acting Unit Sergeant, Defendant Scales, starting within a
couple of days, and that Mr. Gossard should approach him with his
concerns, as it was not her role to arrange cell assignments.
The day after Mr. Scales began his new role, Mr. Gossard
approached him and explained the issues with his cell mate.

Mr.

Gossard states that Mr. Scales acknowledged that he was aware of
the mental issues of the cell mate and agreed to move him out of
the cell within the next day or two. (Doc. 3, at 7)
While waiting for Mr. Scales to make the bed moves, Mr.
Gossard asserts that there was a situation in his cell in which
the cell mate violently slammed things in the cell and kicked the
door.

He states that the cell mate was reprimanded by a prison

officer, and he stopped his violent actions when threatened with
placement in segregation.

Several days later Mr. Gossard alleges

that he went back to Mr. Scales to follow up and remind him of
the situation, but that Mr. Scales because “very upset and
belligerent” with him and made several derogatory statements
towards him.

Mr. Gossard claims that Mr. Scales told him that he

was just going to have to deal with the cell mate situation the
“old school” way and that when he tried to explain to Mr. Scales
the gravity of the situation, Mr. Scales replied by calling him
“a crying ass bitch and told [him] to get out of his face.”

On

March 14, 2014, Mr. Gossard alleges that he informed Mr. Scales
that the situation with the cell mate had reached a “dangerous
position,” stating that the cell mate had awoken him, standing
over him close to his face and threatening “I could have had you,
it would have been so easy and you would never know it was
coming.” (Doc. 3 at 7).

Mr. Gossard also complained to his Unit

Officer and to Defendant Ester, but was informed that “[Mr.
Scales] don’t give a dam (sic) what happens, he is sick and tired
of dealing with a bunch of bitches and cry babies.” (Id.  At 7-8).

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Mr. Gossard alleges that in the morning of March 15 he was
awoken by a violent attack by his cell mate “punching [him] in
the face and about the head,” resulting in a cut eye, blood loss
and a swollen and bruised face.

He asserts that the cell mate

was uninjured as he did not fight back when attacked, and only
shouted to prison officers for help.

Following the attack, Mr.

Gossard was sent to the prison Medical Department and an incident
report was filed on his injuries, and afterwards he was placed in
segregation and charged with fighting.

When he was brought

before the Rules Infraction Board, Mr. Gossard claims that he
told the Board that he had been trying to resolve the cell mate
situation with Ms. Ester and Mr. Scales before something violent
happened, but was told by the Board “[i]t takes two to fight,
that [he] had been complaining to Unit Staff about his issues,
therefore [he] was guilty of fighting.”

Mr. Gossard alleges that

the Board convinced him that if he did not plead guilty to the
charge of fighting then they would find him guilty and issue
disciplinary sanctions, so he plead guilty. (Doc. 3 at 8).

He

further claims that he lost his prison job assignment as
retaliation for the incident. (Doc. 3 at 9).

As noted, in the

prior Memorandum Opinion, the Court found that these allegations
stated a claim against Defendant Scales, but not against the
Warden, due to the Warden’s lack of personal knowledge about or
involvement in the incidents leading up to the attack.
II. Legal Standard
Fed.R.Civ.P. 12(b)(6) provides that the Court may, upon
motion, dismiss a claim for relief asserted in any pleading for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 8(a) requires the party pleading a claim for relief
to make a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

When evaluating such a claim

in the context of a Rule 12(b)(6) motion, the Court must
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ordinarily accept as true all of the well-pleaded factual
allegations of the complaint.

However, Rule 8(a) has been

interpreted to require that the pleader allege “more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do ....”
U.S. 544, 555 (2007).

Bell Atlantic v. Twombley, 550

Moreover, the factual allegations

themselves “must be enough to raise a right to relief above the
speculative level ....”

Id.

Twombley established a test of “facial plausibility,”
replacing the prior standard, announced in Conley v. Gibson, 355
U.S. 41 (1957), under which a complaint was able to withstand a
motion to dismiss if there were any possibility that the pleader
could prove a viable claim for relief.

Expanding upon Twombley’s

“facial plausibility” test, the Supreme Court, in Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009), held that “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the Court to draw a reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal

reiterated the principle that legal conclusions, couched as
factual allegations, need not be accepted as true, and that the
mere recital “of the elements of a cause of action, supported by
mere conclusory statements,” cannot save a claim from dismissal
under Rule 12(b)(6).

Id. at 1950.

Further, Iqbal allows the

reviewing court “to draw on its judicial experience and common
sense” when deciding if it is plausible that the pleader can,
based on the facts alleged, obtain any relief.

Id.

It is still

true, however, that pro se complaints are construed liberally in
favor of the pleader, even though they, too, must satisfy the
“facial plausibility” standard articulated in Twombley.

See

Haines v. Kerner, 404 U.S. 519 (1972); Stanley v. Vining, 602
F.3d 767, 771 (6th Cir. 2010); see also Erickson v. Pardus, 551

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U.S. 89 (2007).

It is with these standards in mind that the

instant motion will be decided.
III. Discussion
This current motion to dismiss has been filed by Defendant
Ester.

She argues, in a motion that is almost identical to the

prior motion filed on behalf of the Warden and Mr. Scales, that
“nowhere does the Complaint allege Plaintiff told the Defendant
he feared for his safety.”

Motion to Dismiss, Doc. 27, at 5.

She repeats that argument in her reply brief, asserting that Mr.
Gossard admitted in his responsive memorandum that he never told
Ms. Ester that he feared for his safety.

The same argument was

advanced by Mr. Scales and was rejected by this Court.
In the Memorandum Opinion and Order denying Mr. Scales’
motion to dismiss, the Court (after reciting the legal standard
applicable to claims based on the failure of prison officials to
protect one inmate from being assaulted by another) said this:
Plaintiff alleged that he informed Defendant Scales on
March 14, 2014, that “the situation with [the cell
mate] has reached a dangerous position,” and told
Scales specifically that the cell mate had awoken
Plaintiff and stated to him, “I could have had you, it
would have been so easy and you would never know it was
coming.” (Compl., doc. 3 at 7). The Court finds that
these statements constituted “facts from which the
inference could be drawn that a substantial risk of
serious harm exists,” and further finds that Plaintiff
has alleged facts suggesting that Scales actually drew
the inference. The Court therefore DENIES Defendants’
motion as to the claim against Defendant Scales.
Memorandum Opinion and Order, Doc. 18, at 6-7.
In his complaint, Mr. Gossard alleges that, concerning these
statements made by his cell mate, he “explained this situation to
my Unit Officer; to Acting Sgt. Scales and I even spoke with my
Unit Manager, Ms. Ester that same day about the situation ....”
Complaint, Doc. 3 (emphasis supplied).

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Ms. Ester’s motion

acknowledges that this allegation is in Mr. Gossard’s complaint,
but she disputes its significance, arguing that the complaint
“does not allege Defendant had any reason to anticipate an
attack.”

Doc. 27, at 4.

But this Court has already found that

the exact same facts put Defendant Scales on notice that Mr.
Gossard was at risk.

There is no reason to reach a different

conclusion with respect to Ms. Ester.

To the extent that her

motion is based on the contention that Mr. Gossard did not say,
in those exact words, that he feared for his safety, it lacks
merit; the Court has found that anyone who heard the words he did
say (or, at least, that he alleges he said) would have been on
notice of a risk of harm, and that it can be inferred from the
circumstances that both Mr. Scales and Ms. Ester actually drew
that conclusion.

The Court finds Ms. Ester’s qualified immunity

argument unpersuasive for the same reasons, which is the same
conclusion previously reached about the qualified immunity
argument advanced on behalf of Mr. Scales.

See Doc. 18 at 8.

Ms. Ester appears to advance an additional reason why the
complaint fails to state a claim against her, contending that her
response to Mr. Gossard’s complaint - that she “did not do bed
moves” - makes is clear that she was not personally responsible
for the assault.

She cites no case law in support of that

argument beyond cases which hold, generally, that respondeat
superior is not a proper basis for liability under 1983.

See

Doc. 27, at 4.
This is not a case, however, where Mr. Gossard seeks to fix
liability on Ms. Ester just because she supervised Mr. Scales
(if, in fact, that was part of her job).

Rather, the complaint

alleges that Ms. Ester was personally made aware of Mr. Gossard’s
safety concerns not only when he first broached the subject with
her - at which time her referral of the matter to Mr. Scales may
have been a reasonable response, given the relatively low threat
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level at that time - but on the day before the assault, when the
situation had escalated, and a time when (at least according to
the complaint) Ms. Ester knew that Mr. Scales had done nothing to
address Mr. Gossard’s concerns.

At that point, it may well have

been unreasonable for her to continue to shift the responsibility
onto Mr. Scales when he was clearly not accepting it, and when
she was aware that Mr. Scales’ failure to act could be
interpreted as deliberate indifference to a serious risk of harm.
The case law makes clear that liability under the Eighth
Amendment is predicated on two factors: knowledge of a risk of
harm, and deliberate indifference to that risk.

Farmer v.

Brennan 511 U.S. 825 (1994); Street v. Corrections Corp. of
America, 102 F.3d 810 (6th Cir. 1996).

A prison official’s job

description is not determinative of whether that official
possessed the required degree of knowledge to create Eighth
Amendment liability.

See Harper v. United States, 2014 WL

1745872, *13 (M.D. Pa. May 1, 2014)(“Plaintiff is correct that
Defendant['s] reliance on his job description, alone, is
insufficient to prove that he was not personally involved in the
cell assignment decisions” at issue).

It is also important to

remember that this matter is before the Court by way of a motion
to dismiss, where all of the well-pleaded allegations of the
complaint are to be taken as true.
Ms. Ester was the Unit Manager.

The complaint asserts that

It is at least plausible, from

that allegation, that she had some responsibility for securing
the safety of inmates in her unit, even if specific tasks like
making bed assignments had been delegated to others.

Further, as

noted, Mr. Gossard’s claim is not that she was responsible solely
by virtue of her position, but based on specific information he
told her about why he was at risk.

At this stage of the case,

the Court cannot conclude that Mr. Gossard would be unable to
prove liability on Ms. Ester’s part if he can establish that all
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of the facts he has pleaded are true.

That necessitates denial

of her motion to dismiss.
IV.

Recommendation

For the reasons stated above, and in keeping with the
Court’s ruling in the Memorandum Opinion and Order filed on July
24, 2015, the Court recommends that Defendant Ester’s motion to
dismiss be denied.
V.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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