United States District Court, E.D. Missouri, Northern Division
ADAM SCOTT, by and through his legal Guardian and Next Friend Donna Taylor, Plaintiff,
ROBERT DAWSON, et al., Defendants,
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the court on the remaining Defendants'
Motion for Summary Judgment. [Doc. No. 126]. Plaintiff
opposes the Motion. For the reasons that follow, the Motion
filed his Complaint on April 11, 2012. After initial review,
and several motions, Plaintiff's remaining claims are
against Defendants Dawson, Moore and Shively in their
individual and official capacities. Plaintiff alleges
pursuant to 42 U.S.C. § 1983 that Defendants were
deliberately indifferent to a risk of sexual assault and
failed to train jailers to prevent assaults at the Macon
Scott (hereinafter “Scott”) became incarcerated
at the Adair County jail in June 2008. Scott was held at the
Adair County Jail until November 23, 2009, when he was
transferred to the Macon County Jail. At the time of the
incident involving Nathanial Flennory, Scott was being held
in jail on charges of forcible rape. While Scott was housed
at the Adair County Jail from June 2008 until November 2009,
Adair County employees did not tell him the nature of the
charges filed against any of his cellmates. While Scott was
housed at the Randolph County jail, jailers and staff at
Randolph County never informed him what any of the other
inmates' charges were.
was first held at the Macon County Jail from November 23,
2009, to November 25, 2009. On November 25, 2009, Scott was
transferred from the Macon County Jail to the Randolph County
Jail. Scott was transferred from the Randolph County Jail to
the Macon County Jail on January 28, 2010, where he remained
until May 31, 2010.
never spoke with Sheriff Dawson while he was lodged at the
Macon County Jail. Scott never saw Sheriff Dawson while he
was at the Macon County Jail.
after returning to the Macon County in January 2010, Scott
asked to be held in isolation because other inmates were
being loud and obnoxious. The officers complied with his
request and placed him in isolation for a couple of days.
Scott was at the Macon County jail he slept all morning, all
night, and basically all day.
the incident with Flennory, Scott told Moore where he had
been bit and that it bled a little bit, that he did not want
to get an infection, so he asked David Moore for triple
antibiotic ointment. Scott did not ask anyone at the Macon
County jail to see a doctor after the incident involving
morning after the incident with Flennory, to-wit May 31,
2010, Scott was transferred back to the Adair County Jail.
When Scott was back at Adair County, Adair County did not
allow him to see a medical professional or provide him with
any antibiotic ointment for his penis as a result of the
incident with Flennory.
result of the incident with Flennory, Scott has a scar on his
penis that is about the size of a pencil eraser. Scott did
not get an infection as a result of the incident with
Flennory and no further medical treatment was required.
(Exhibit “A”, Pg. 114, L:20-23). He did not
require any emergency medical treatment while he was at Macon
Scott was at the Macon County Jail from November 23, 2009,
until November 25, 2009, he did not encounter Flennory.
to being at the Macon County Jail in January 2010, Scott did
not know Flennory. He did not know the reason why Flennory
Scott arrived at the Macon County Jail in January 2010, he
was initially placed in general population but he was not
placed in the same pod as Flennory. After being at the Macon
County Jail for a short while, Scott, at his request, was
placed in isolation for a couple of days and upon his release
he was placed in a pod with his cousin, Stephen Munn, and two
the time that Scott was in a pod with Stephen Munn, Nathaniel
Flennory was in a pod on the other side of the wall of the
pod where Scott was housed. During the time that Flennory was
on the other side of the wall, Scott and Flennory would talk
through the walls. During that time, Flennory did not make
any threats to Scott. Flennory did not threaten Scott in any
manner and Flennory did not make any threats of physical
violence or sexual assault to Scott.
point, Scott was moved into the same pod as Flennory. Prior
to moving into the same pod with Flennory, Moore asked Scott
if he wanted to move into the same pod as Flennory and Scott
said “yes.” Flennory and Scott had been housed in
the same pod for a week or less at the time the incident
point during the time that Flennory and Scott were housed in
the same pod, Flennory told Scott that he had hit another
inmate in the eye and the other inmate was taken to the
hospital for stiches. Flennory told Scott that the jailers
were told that the injury to the other inmate was caused when
the other inmate fell and hit his eye on the toilet bowl.
None of the jailers were aware that Flennory hit another
individual. Scott never told Moore, Shively, or any of the
jailers that Flennory had hit another individual.
until the time that Scott moved into Flennory's pod, he
and Flennory were cordial and nice to each other. (Exhibit
“A”, Pg. 129, L:8-14). They were getting along.
Scott and Flennory would occasionally play cards together.
Flennory would occasionally sit in Scott's cell and talk
with him. The night before Flennory bit Scott's penis,
Flennory got ahold of a bat and put the bat in Scott's
face and told Scott that if Scott did not touch his chest he
would let the bat bite Scott. The incident with the bat
occurred between 6:00 p.m. on May 29, 2010 and 6:00 a.m. on
May 30, 2010.
claims that at the time that Flennory had the bat, Shively
was coming through the jail and took the bat from Flennory.
Scott claims that after Shively took the bat from Flennory,
Flennory went to bed. Plaintiff does not know if Shively
heard anything that Flennory said during the incident with
the bat. He did not believe that during the incident with the
bat that Flennory was attempting to get Scott to touch his
chest in a sexual manner. Scott testified that he was not
scared of Flennory due to the incident with the bat. He
thought that Flennory was playing around, acting childish and
being a prankster during the event with the bat. Based upon
Scott's experience, sometimes people in jail pull pranks
and mess around with each other. After the incident with the
bat, Plaintiff testified that he and Flennory continued to
act in a friendly manner. Scott did not request to be moved
away from Flennory after the incident with the bat. .
until the incident with the bat, Flennory had never asked
Scott for any sexual favors. Up until the incident with the
bat, Flennory had never asked Scott to touch him
inappropriately. Up until the incident with the bat, Scott
was not scared of Flennory in any manner.
morning of May 30, 2010, Flennory was in Scott's cell and
Flennory showed Scott his penis and said he wished it was
bigger. Scott thought that when Flennory showed his penis and
made the statement, that he was just being
“ignorant.” Flennory only had his penis out for a
second. The whole incident where Flennory showed Scott his
penis lasted for 30 seconds. When Flennory showed Scott his
penis, Scott told Flennory that he was nasty and he did not
want to see it. During the incident where Flennory showed
Scott his penis, Flennory did not move toward Scott. The
incident where Flennory showed Scott his penis occurred after
breakfast but before lunch. When Flennory showed Scott his
penis, Scott thought he was just playing around. Scott did
not tell any officers or employees of the Macon County Jail
that Flennory had showed him his penis. Scott did not think
much of Flennory showing his penis and he thought that
Flennory was playing around.
on May 30, 2010, Scott and Flennory were playing cards. Scott
was sitting on the toilet seat in the cell and Flennory was
sitting on Scott's bunk and Flennory leaned over and put
his finger down the crack of Scott's buttocks. Flennory
stuck his index finger in Scott's butt crack. While
Flennory stuck his finger in Scott's butt crack, Flennory
laughed for approximately 20 seconds. Flennory did not make
any sexual comments to Scott when he stuck his finger in
Scott's butt crack. When Flennory stuck his finger in
Scott's butt crack, Scott grabbed Flennory's hand and
pushed it away and told Flennory he was done playing cards.
At that point, Flennory went back to his cell.
had taken his night medication right before he and Flennory
played cards. Scott and Flennory then played cards for 20
minutes before the incident with the finger happened. Then
Flennory left and Scott went to bed. .
testified that he did not have any idea if an officer came by
between the time that Flennory touched his butt crack and the
time he woke up the evening of May 30, 2010. Scott did not
yell out for help after the finger incident.
the finger incident, Scott later woke up with Flennory on top
of him and Flennory was biting his penis. When Scott woke up,
Flennory had Scott's penis in his mouth. He shoved
Flennory off of him. When Scott pushed Flennory off of him,
Flennory bit Scott's penis.
same time that Scott pushed Flennory off, Shively popped the
lock on the downstairs door and Flennory ran to his cell.
When Shively walked through, Scott reported the incident to
Shively and Shively took Scott to a pod by himself.
“H” represents the mark that was left by Flennory
on Scott's penis.
noted that the bite bled and there was blood on the front of
his pants. Scott's pants would have been orange and the
blood spot was not larger than the end of a BIC pen cap.
Scott told David Moore that he had bled and showed him the
blood spot on his pants. When he saw Moore on May 31, 2010,
the bite mark on his penis was no longer bleeding.
incident with Flennory lasted 60 seconds tops from the time
Scott woke up, Flennory got off of him and Shively popped the
key downstairs. As soon as Scott told Shively he needed to
talk to him, Shively pulled him out of the cell and spoke
with him in private about what occurred. Once Scott told
Shively what occurred, Shively immediately removed Scott from
the cell. At the time that Shively showed up, there was no
visible blood on Scott's pants. Shively asked Scott if he
wanted to file a report. The officer who took the report
wrote out Scott's statement and Scott signed it.
Scott was transferred back to Adair County, he requested
antibiotic ointment but was not provided with any.
testified that he was aware during his time in jail that if
he had any concerns he could discuss those with the jail
was being held in the Macon County Jail on forcible rape
has been diagnosed as a compulsive liar.
has given several versions of the events of May 30, 2010 and
May 31, 2010. Scott previously stated, under oath, that he
was provided with his medication on May 30, 2010 around 11:00
testified during his deposition that the incident where
Flennory bit his penis occurred between 8:30 p.m. and 9:00
the incident involving Flennory, Adam Scott gave an oral
statement to Deputy Tyler Souther. Scott signed the statement
that was written out by Deputy Tyler Souther. In his
statement to Souther, Scott stated that on May 30, 2010,
after dinner, he was in his cell and Flennory came into his
cell. When Flennory came into his cell, Flennory said he was
“dizzy” and Flennory fell over and his head
landed between Scott's legs. Scott noted that when
Flennory fell over, Flennory “nibbled” on his
crotch through his clothes with his mouth. After Flennory
nibbled on Scott's penis, Flennory left Scott's cell.
In his statement to Deputy Souther, Scott noted that Flennory
then came back to his cell a while later and laid down on his
bed. In his statement to Deputy Souther, Scott noted that
while Flennory was lying on his bed, Flennory put his fingers
down the crack of his buttocks. In his statement to Deputy
Souther, Scott noted that when ...