Gilbert-Mitchell v. Gerlach et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATION 44 of Magistrate Judge Shon T. Erwin; defendant Gerlach's 25 motion to dismiss is denied; this order does not terminate the referral. Signed by Honorable Joe Heaton on 3/7/2019. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WALLACE GILBERT-MITCHELL,
Plaintiff,
vs.
JIM GERLACH, et al.,
Defendants.

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NO. CIV-17-0732-HE

ORDER
Plaintiff Wallace Gilbert-Mitchell, appearing pro se and in forma pauperis, filed
this § 1983 action against Jim Gerlach, the Warden at Grady County Law Enforcement
Center (“GCLEC”), and Sergeant Nathan Owings, a GCLEC guard, in both their individual
and official capacities. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the matter was
referred for initial proceedings to Magistrate Judge Shon T. Erwin. Pursuant to 28 U.S.C.
§§ 1915A(a) and 1915(e)(2)(B), Judge Erwin reviewed the complaint and issued a Report
and Recommendation recommending that the court dismiss the majority of plaintiff’s
claims. Doc. # 7. After plaintiff objected to the Report, upon de novo review, the court
adopted the Report and granted plaintiff leave to file an amended complaint. Doc. 11.
Plaintiff never filed an amended complaint. Thus, the only claims that remain are
Eighth Amendment claims against the defendants in their individual capacities. Plaintiff
claims that defendant Owings sexually assaulted him and that defendant Gerlach failed to
protect him from Owings after receiving notice of Owings’ alleged assault.

Defendant Gerlach has filed a motion to dismiss the remaining claim against him
pursuant to Fed.R.Civ.P. 12(b)(6).

Judge Erwin issued a second Report and

Recommendation recommending that the motion be denied. Defendant Gerlach has
objected to the Report, which triggers de novo review by this court of proposed findings or
recommendations to which objection has been made.
When considering whether claims should be dismissed under Fed.R.Civ.P. 12(b)(6),
the court accepts all well-pleaded factual allegations of the complaint as true and views
them in the light most favorable to the plaintiff, the non-moving party. S.E.C. v. Shields,
744 F.3d 633, 640 (10th Cir. 2014). To avoid dismissal, the complaint must allege “enough
facts to state a claim to relief that is plausible on its face” and “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 555 (2007).
The Eighth Amendment protects prisoners against cruel and unusual punishment,
which includes a duty that prison officials protect prisoners from violence. Farmer v.
Brennan, 511 U.S. 825, 833 (1970). This includes the right to be reasonably protected
from sexual assault and the threat of sexual assault. Ramos v. Lamm, 639 F.2d 559, 572
(10th Cir. 1980). “To establish a cognizable Eighth Amendment claim for failure to
protect, the plaintiff must show that he is incarcerated under conditions posing a substantial
risk of serious harm, the objective component, and that the prison official was deliberately
indifferent to his safety, the subjective component.” Verdecia v. Adams, 327 F.3d 1171,
1175 (10th Cir. 2003) (quotations and citation omitted).
Plaintiff alleges that Gerlach failed to take any corrective action or separate plaintiff
from Owings after he was notified that Owings had sexually assaulted him. Doc. # 1, p. 7.
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Failure to take corrective steps sufficient to protect prisoners from sexual assault by prison
employees after notice of prior sexual assaults by such employees can make out an
actionable claim against the prisoner administrator. Tafoya v. Salazar, 516 F.3d 912, 917
(10th Cir. 2008). Plaintiff’s allegations are sufficient to suggest both a substantial risk of
serious harm and that the warden knew of it but did nothing.
Defendant Gerlach argues, however, that plaintiff’s claim must be dismissed
because “Plaintiff simply did not suffer any cognizable constitutional harm after Defendant
Gerlach was notified of the alleged sexual assault.” Doc. # 46, p. 4. While the absence of
any further assault after the warden acquired knowledge may limit or preclude recovery of
meaningful compensatory damages, it does not preclude the establishment of a
constitutional violation and the recovery of nominal damages. Searles v. Van Bebber, 251
F.3d 869, 876 (10th Cir. 2001).
Therefore, plaintiff has adequately stated a claim against defendant Gerlach. The
Report and Recommendation [Doc. # 44] is ADOPTED. Defendant Gerlach’s Motion to
Dismiss [Doc. # 25] is DENIED. This order does not terminate the referral.
IT IS SO ORDERED.
Dated this 7th day of March, 2019.

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