United States District Court, Eastern District of Missouri, Northern Division
VICTORIA WHITTINGTON, MAEGEN BRIGHT, and SONDRA LONESS, Plaintiffs,
MARK ANTHONY ISGRIG, GEORGE LOMBARDI, and ANGELA PEARL, now known as ANGELA MESMER, Defendants.
MEMORANDUM AND ORDER
DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE
This action is before the court on the motions of defendants Mark Anthony Isgrig (Doc. 93) and George Lombardi and Angela Mesmer (Doc. 95) for summary judgment. The court heard oral argument on May 13, 2015.
I. PLAINTIFFS’ CLAIMS
Following earlier rulings in this case, plaintiffs Victoria Whittington, Maegen Bright, and Sondra Loness, allege that, while when they were sentenced Missouri state prisoners, defendant Isgrig, then a Missouri state correctional officer, intentionally and improperly touched their breasts for his sexual gratification when he conducted pat down procedures in the Missouri State Women’s Eastern Reception, Diagnostic and Correctional Center (WRDC). Plaintiffs seek relief against Isgrig and two officials of the Missouri Department of Corrections, defendants Lombardi and Mesmer.
Before the court are plaintiffs’ claims for relief against all three defendants in their individual capacities under the Eighth Amendment to the United States Constitution and under Missouri state common law:
(1) Counts 1, 8, and 16 allege against defendant Isgrig a violation of plaintiffs’ Eighth Amendment right against cruel and unusual punishment;
(2) Counts 2, 9, and 17 allege against defendant Isgrig the Missouri common law tort of outrageous conduct;
(3) Counts 3, 10, and 18 allege against defendants Isgrig and Lombardi claims under the Eighth Amendment for a failure to train;
(4) Counts 4, 11, and 19 allege against defendants Lombardi and Mesmer a claim under the Eighth Amendment for their failure to protect plaintiffs out of deliberate indifference;
(5) Counts 5, 12, and 20, allege against all defendants a claim under the Eighth Amendment for a failure to protect out of gross negligence or reckless indifference;
(6) Counts 6, 13, and 21, allege against defendants Lombardi and Mesmer a claim under the Eighth Amendment for the deliberate failure to use adequate procedures; and,
(7) Counts 7, 14, and 22, allege against defendants Lombardi and Mesmer a claim under the Eighth Amendment for a failure to use adequate procedures out of reckless indifference or gross negligence.
Plaintiffs seek substantial actual damages, punitive damages, attorney fees, and costs.
II. SUMMARY JUDGMENT STANDARD
Courts must grant summary judgment when the pleadings and the proffered evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 381 (2007) (internal citation omitted). A fact is “material” if it could affect the ultimate disposition of the case, and a factual dispute is “genuine” if there is substantial evidence to support a reasonable jury verdict in favor of the nonmoving party. Rademacher v. HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011). Stated another way, the party defending the motion must "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." Celotex Corp., 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party and accord it the benefit of all reasonable inferences. Scott, 550 U.S. at 379. The nonmoving party must proffer “affirmative evidence in order to defeat a properly supported motion for summary judgement.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir. 1999). If the nonmoving party fails to proffer substantial evidence of an essential element of a claim, summary judgement is appropriate on that claim because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323; St. Jude Med., Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 595 (8th Cir. 2001).
III. FACTUAL BACKGROUND
The proffered evidence submitted on the motions for summary judgment indicates that the following facts are without genuine dispute.
Defendant Mark Isgrig was employed by the Missouri Department of Corrections (MDOC) as a Correctional Officer I at the Women’s Reception and Diagnostic Center (WRDC). (Doc. 94-2 at 8.) Rachel Henke is a Correctional Officer II at WRDC and was defendant Isgrig’s direct supervisor. (Doc. 96-10 at 8.) Defendant Angela Mesmer is the warden at WRDC. (Doc. 96-6 at 6.) Defendant George Lombardi is MDOC’s Director. (Doc. 96-7 at ¶ 2.) Joey E. Runyan is an investigator in District 1 of MDOC, which includes WRDC. (Doc. 96-8 at 11.)
Correctional officers are trained on pat down procedures in basic training when they begin their employment. (Docs. 96-6 at 10; 96-9 at 7, 9; 96-10 at 8–9.) Defendant Isgrig received training on proper pat down procedures when he started working at MDOC in 2005 or 2006. (Doc. 96-6 at 10.) Isgrig’s last frisk search training was in November 2010. (Doc. 100-1 at 10.) There are policy books, which include the procedures for proper pat down searches in the training rooms, control centers, shift supervisors offices, and on the computers where corrections officers can review them. (Docs. 96-6 at 11; 100-1 at 8.)
The proper pat down procedure of a female offender is for a male or female correctional officer to stand behind and reach around her. (Docs. 96-5 at 17–18; 96-8 at 15–16; 96-9 at 10–11; 96-10 at 11–13, 25–26.) The thumb of each hand of the officer is folded in and the hand, thumb in, is placed between the offender’s breasts. (Docs. 96-5 at 17–18; 96-8 at 15–16; 96-9 at 10–11; 96-10 at 11–13, 25–26.) The officer’s hand then goes under the contour of the bra line, palm side down. (Docs. 96-5 at 17–18; 96-8 at 15–16; 96-9 at 10–11; 96-10 at 11–13, 25–26.) The back of the hand then goes across the top of the breast. (Docs. 96-5 at 17–18; 96-8 at 15–16; 96-9 at 10–11; 96-10 at 11–13, 25–26.) Officers should only use the backs of their hands, and the palm should never touch an offender’s breast. (Docs. 96-5 at 17–18; 96-8 at 15–16; 96-9 at 10–11; 96-10 at 11–13, 25–26.) If an offender is ever uncomfortable with any male correctional officer performing a pat down search, she may ask for a female correctional officer to perform the search instead. (Docs. 96-5 at 21; 96-10 at 23.)
Defendant Lombardi does not have any personal involvement in the day-to-day operations at WRDC and he had no direct responsibility to train or supervise Mesmer or Isgrig. (Doc. 96-7 ¶¶ 5–6.) Lombardi does not personally conduct training or develop training programs, classes, or policies. (Id.) He had no knowledge of improper pat down searches at WRDC by Isgrig or any other correctional officer. (Id at ¶¶ 4, 7.)
Plaintiff Victoria Whittington was incarcerated at WRDC from December 26, 2010 to March 24, 2013. (Doc. 94-3 at 9.) Defendant Isgrig fondled Whittington two times. (Id. at 19–20.) Also he performed pat down searches on her more often than other inmates. (Id.) Isgrig performed these searches in areas not visible to cameras or other officers. (Docs. 94-2 at 20; 100-1 at 6.) One fondling occurred in April 2011. (Doc. 94-3 at 29.) Whittington complained to Corrections Officer Ames and he informed Whittington that she could file a grievance. (Id. at 29–30.) Whittington did not file a grievance at that time. (Id. at 30.) MDOC investigator Runyan questioned Whittington regarding defendant Isgrig in June 2011. (Id. at 32.) Whittington and other offenders would pose sexually in their rooms when Isgrig came, in order to excite and cause him to become flustered, because they found his reactions funny. (Doc. 100-1 at 6.) Whittington did not seek medical or psychological treatment as a result of Isgrig’s assaults on her. (Doc. 94-8 at 7.) Whittington feels scared, humiliated, embarrassed, and violated due to the actions of Isgrig. (Id. at 6.) Whittington also experiences insomnia and a fear of all correctional officers. (Id.)
Plaintiff Maegen Bright was incarcerated at WRDC from some time in December 2010 to April 29, 2013, and again from April 22, 2014 to the present. (Doc. 94-4 at 7–8.) Bright was frisked by Isgrig between 25 and 50 times, and inappropriately two or three times. (Id. at 18.) During these inappropriate pat down searches Isgrig used his hands, palms up, and grabbed Bright’s breasts. (Id.) Bright complained to Corrections Officer Ames. (Doc. 94-7 at 5.) Bright also discussed the matter with MDOC Investigator Runyan. (Docs. 94-7 at 6; 100-1 at 11–12.) She never sought medical or psychological treatment as a result of Isgrig’s assaults on her. (Docs. 94-4 at 34; 94-7 at 7–8.) Bright felt shocked, angry, uncomfortable, embarrassed, and ashamed after Isgrig fondled her. (Docs. 94-4 at 34; 94-7 at 6–7.) Bright also feels anxiety whenever a corrections officer approaches her. (Doc. 94-7 at 6.)
Plaintiff Sondra Loness was incarcerated at WRDC from January 18, 2011 to July 28, 2011; from June 12, 2013 to August 6, 2014; and again from January 16, 2015 to the present. (Doc. 94-5 at 7–8.) Loness was frisked by Isgrig frequently and all of the searches were inappropriate. (Doc. 94-5 at 16–17, 19; 94-7 at 7.) Isgrig searched Loness in locations that could not be observed by other corrections officers. (Doc. 94-7 at 7.) Loness discussed the matter with MDOC Investigator Runyan. (Id.) Loness never sought treatment or psychological counseling as a result of these assaults, but did seek it due to trauma experienced during her childhood. (Doc. 94-6 at 8.) Loness is in constant emotional distress from the assaults by Isgrig. (Id.) Loness feels shame, humiliation, and anxiety as a result of these assaults. (Id.) She sometimes has panic attacks due to Isgrig’s fondling of her. (Id.)
On or about April 6, 2011, inmate L.B. complained to a prison chaplain regarding an officer performing improper pat down searches, but she did not identify the officer by name. (Docs. 96-5 at 25; 96-8 at 22; 100-1 at 2.) L.B. stated that the officer stared at her breasts, buttocks, and genitals and then groped her breasts on April 6, 2011. (Doc. 100-1 at 2). Sometime between April 6 and 12, 2011, L.B. wrote a letter to the warden, defendant Angela Mesmer, complaining of lewd and inappropriate behavior by an unidentified corrections officer. (Id.) L.B. was immediately moved, at her request, to administrative segregation and was transferred to a different prison on April 19, 2011. (Docs. 96-5 at 32; 96-6 at 21–22; 96-8 at 121.) On April 7, 2011, an interoffice memorandum was sent by the prison chaplain to the deputy warden documenting L.B.’s complaint regarding an unidentified corrections officer. (Doc. 96-6 at 17–18.) On April 8, 2011, Mesmer ordered an investigation of the allegations of improper pat down searches. (Docs. 96-5 at 26, 30; 96-6 at 16.)
On April 12, 2011, MDOC Investigator Runyan began his investigation by reviewing the complaint letter L.B. sent to the warden’s office regarding inappropriate behavior by an unidentified officer. On April 18, 2011, Runyan interviewed L.B., who gave him a general description of the offending officer. (Doc. 100-1 at 3.) Runyan then reviewed the time logs and surveillance tapes from April 6, 2011 and matched L.B.’s description with Isgrig. (Docs. 96-8 at 23; 100-1 at 3.)
There was a pause in Runyan’s investigation between April 6, 2011 and June 1, 2011. (Docs. 96-5 at 32; 96-8 at 24–25; 100-1 at 3.) During this time Isgrig was still an active corrections officer working in the housing unit. (Docs. 96-5 at 35–36; 96-6 at 34; 96-8 at 25.) Runyan interviewed complaint L.B. before she was transferred. (Doc. 96-8 at 25.) After that interview he returned to investigating his older cases. (Id.)
At the beginning of June 2011, Runyan began interviewing other staff at WRDC. (Doc. 100-1 at 3–4.) On June 6, 2011 Runyan interviewed L.B.’s former cellmates who did not confirm L.B.’s accusations. (Id. at 4.) Runyan, however, was provided another possible victim’s name by a cleaning porter at the prison. (Id.) Offender M.G. provided Runyan with a written statement regarding Isgrig’s actions. (Id. at 4–5.) Isgrig ogled her breasts, used a palms upward technique to search around her breasts, and then lifted and squeezed her breasts. (Id. at 5.) M.G. believed that Isgrig had an obsession with large-breasted women. (Id. at 5.) M.G. provided additional victims’ names: M.L., V.B., and Victoria Whittington. (Id.) Neither M.L. nor V.B. accused Isgrig of acting improperly. (Id. at 6, 8.) Victoria Whittington, however, allowed Runyan to conduct a recorded audio interview regarding Isgrig’s behavior. (Docs. 94-2 at 32; 94-8 at 3–5; 100-1 at 6.) Her description of his actions is detailed above. Whittington also provided Runyan with the names of other possible victims: B.V. and Sondra Loness. (Doc 100-1 at 6.) Runyan interviewed Loness who described the same actions by Isgrig: frisking out of view of other officers or surveillance cameras, excessive searches, targeting Caucasian large-breasted women. Loness could not remember at that time if Isgrig patted her down palms up or palms down. (Id. at 7.) All offenders who cooperated with Runyan stated it was common knowledge among the inmate population in Housing Unit 2 that Isgrig was performing improper searches for his own pleasure. (Id. at 3–8, 11–12.)
On June 13, 2011, Runyan set up a covert camera to document Isgrig’s searches. (Id. at 9.) On June 14, 2011, Runyan observed Isgrig perform fourteen female offender frisk searches, and noted the following details: only Caucasians were searched, all offenders appeared mid-30s or younger, most offenders could be described as full-figured, and all searches were done in contradiction to policy. (Id.) On June 16, 2014, Runyan asked Sergeant Hendren to observe Isgrig conduct searches from a location where Isgrig could see him but would not suspect he was being surveilled. (Id.) All searches during this time were performed on female African American offenders without incident. (Id.) Sergeant Hendren then observed Isgrig covertly. (Id.) These searches were conducted on approximately 10–15 offenders. All female offenders were Caucasian and Isgrig did not follow MDOC proper frisk procedures. (Id.) In one case Isgrig ran his hand alongside the breast of an offender. (Id.) All offenders looked disgusted with Isgrig’s actions. (Id.). Sergeant Hendren stated, “[i]n conclusion, it appears to me that CO I Isgrig knows how to perform a proper frisk search on a female offender; however, at times, he chooses not to in order to gain some form of personal gratification, whether that be sexual in nature or another form of control over the female offender.” (Id.)
On June 20, 2011, Runyan interviewed Isgrig. (Id. at 9–10.) This interview was audio recorded and Isgrig provided a written statement. (Id. at 9, 11.) Isgrig stated he never conducts improper pat downs and that he has never had a formal complaint against him regarding improper pat downs. (Id. at 10.) He claimed that he stayed away from searching large breasted women because “I have to lean around and make sure I hit the right places.” (Id.) He stated that, if an offender was complaining he went over the top of the breasts, “that is not true” and “[n]ow, I know that would be strictly wrong.” (Id. at 10–11.) Isgrig also denied that he was getting any kind of gratification from searching offenders. (Id. at 10–11).
On June 21, 2011, Runyan conducted an audio recorded interview with victim offender M.B. (Id. at 11.) M.B. stated that Isgrig does his searches in a location different from other guards. Until recently M.B. did not realize that Isgrig’s searches were improper. (Id.) On or about June 9, 2011, M.B. spoke with Maegan Bright who described how Isgrig was searching her and was very upset by it. (Id.) M.B. realized the searches were improper and she contacted Corrections Officer Ames. (Id.) M.B. was referred to Beverly Little, the Functional Unit Manager. (Id.) M.B. stated Isgrig would bump her genital area with his hands as he worked his way up her leg from the knee. (Id.) Then he would put his hands, palms up, cupping her breasts and lift them high. (Id.) M.B. stated she was unaware of an investigation of Isgrig. (Id.)
On June 22, 2011, Runyan conducted an audio recorded interview with victim offender Maegan Bright. (Id.) Bright also provided a written statement. (Id.) She stated Isgrig put both hands around her breasts, palms-up and lifted them very high simultaneously. (Id. at 12.) Other offenders in her housing wing complained of the same actions by Isgrig and ...