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Blair v. Terry

United States District Court, W.D. Missouri, Southern Division

December 8, 2017

DIAMOND D. BLAIR, Plaintiff,
ROGER TERRY, et al., Defendants.



         Several motions are before the Court: Defendants' five separate Motions to Dismiss (docs. 93, 94, 95, 96 and 97), Defendants' Motion for Partial Summary Judgment (doc. 123), and the issue of permanently sealing certain exhibits submitted by the parties in connection with the summary judgment motion (docs. 125, 126, 132, 134, 136 and 142). All matters are ripe for disposition. As explained below, the Motions to Dismiss and Motion for Partial Summary Judgment are GRANTED in part and DENIED in part; and the Court further grants leave to permanently seal nine out of the ten exhibits at issue. Following this ruling, Counts III, IV, and VI remain for trial.

         I. Procedural Background

         Plaintiff Diamond Blair is currently an inmate in the custody of the Missouri Department of Corrections (“MDOC”). Blair, acting pro se, initially filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 9, 2015, stemming from two separate attacks on Blair by other inmates. (Doc. 1.) On April 18, 2017, Blair, now with appointed counsel, filed his Second Amended Complaint (“Complaint”) (doc. 87), which is the operative complaint.[1] Blair brings this action against nine MDOC officers in their individual capacities. At all times relevant to this action, Defendants Roger Terry and Sabrina Bates were employed by MDOC at South Central Correctional Center (“SCCC”); Defendants Phillip Rippinger, Jeremy Roach, Victoria Tausend, Nicolas Olalde, and Rodney Holland (collectively “Unit 5 officers”) were also employed by MDOC at SCCC; and Defendants Richard Martin and John Gerke were employed by MDOC at Jefferson City Correctional Center (“JCCC”).

         Blair seeks damages to compensate for injuries he sustained as a result of several alleged constitutional rights violations. Specifically, Blair claims Defendants failed to protect him from attack (Counts I against Unit 5 officers; Count II against Bates; Count III against Terry), denied him due process in connection with his prolonged retention in administrative segregation (Count IV against Terry), and disciplined him in retaliation for filing this lawsuit and using MDOC's grievance procedure (Counts V against Martin; Count VI against Gerke).

         In Defendants' motions to dismiss, they argue that all counts should be dismissed pursuant to the exhaustion requirement under the Prison Litigation Reform Act (the “PLRA”), 42 U.S.C. § 1997e(a). In addition to this argument, in Gerke's motion to dismiss (doc. 94), he argues the claim against him should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). In Defendants' summary judgment motion, Defendants incorporate and reassert the exhaustion arguments raised in the motions to dismiss and also raise arguments related to Blair's failure-to-protect and retaliatory discipline claims in Counts I, II, III, V, and VI.[2] Blair opposed the motions to dismiss and summary judgment motion. (Docs. 103, 104, 105, 106, 107 and 140.) Defendants did not file any reply suggestions. In connection with the summary judgment motion, the parties also seek to permanently seal ten exhibits. On November 17, 2017, upon Blair's request, oral argument was held on the summary judgment motion.

         In Part II below, the Court first takes up Gerke's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Next, in Part III, the Court addresses the summary judgment motion regarding the PLRA's exhaustion requirement[3] followed by the remaining arguments related to Counts I, II, III, V, and VI. Finally, in Part IV, the Court resolves the seal issue.

         II. Gerke's Motion to Dismiss Pursuant to Rule 12(b)(6) (Doc. 94)

         A. Legal Standard

         When considering a motion to dismiss, the Court must liberally construe the complaint in favor of the plaintiff, accepting material allegations of fact in the complaint as true, unless those allegations are “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible when the facts asserted by the plaintiff “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard asks only “for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         B. Discussion

         Gerke contends Blair has not presented facts demonstrating how Gerke engaged in retaliatory discipline in violation of 42 U.S.C. § 1983. Relevant to this argument, “[a] prima facie case of retaliatory discipline requires a showing that: (1) the prisoner exercised a constitutionally protected right; (2) prison officials disciplined the prisoner; and (3) exercising the right was the motivation for the discipline.” Haynes v. Stephenson, 588 F.3d 1152, 1155 (8th Cir. 2009) (citation omitted); see also Williams v. Horner, 403 F. App'x 138, 140 (8th Cir. 2010) (the Eighth Circuit has “consistently found the filing of a disciplinary action against an inmate, if done in retaliation for the inmate's use of the grievance procedure against prison staff, is allegation sufficient to survive dismissal at the pleading stage.”) (citations omitted).

         As context, Blair's claim against Gerke, added in his Second Amended Complaint filed on April 18, 2017, arises from events occurring after the June attack and Blair's transfer to JCCC on July 28, 2015. Blair alleges each of the necessary elements: (1) Blair exercised his constitutionally protected rights to file this lawsuit and use the prison grievance procedure (doc. 87 at ¶ 174), see Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (inmates have a constitutional right to access the courts); (2) subsequent to Blair initiating this lawsuit, Gerke instructed that a conduct violation be issued to Blair for the common practice of placing a newspaper outside his cell to collect clean laundry and placed him in administrative segregation (doc. 87 at ¶¶ 122, 124, 176); and (3) Blair's initiating of this lawsuit and use of MDOC's grievance procedure were the determining factors in Gerke causing Blair to be issued a conduct violation and placing Blair in administrative segregation in that Gerke would not have done so but for Blair engaging in those protected activities (doc. 87 at ¶¶ 122, 124-25, 179), see Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) (citation omitted)) (“An inmate may maintain a cause of action for retaliatory discipline under 42 U.S.C. § 1983 where a prison official files disciplinary charges in retaliation for an inmate's exercise of constitutional rights.”).

         Additionally, Blair alleges Gerke made the following statements: Gerke stated they “got” Blair after Blair was issued a conduct violation (doc. 87 at ¶ 109); Gerke told Blair he does “not belong in his PC unit” and he doesn't “want [Blair] over here” while Blair was confined in administrative segregation (doc. 87 at ¶ 116); and Gerke told another inmate to stay away from Blair because Gerke was watching Blair, and if Blair made a wrong move, he would “bury [Blair] in the hole [administrative segregation]” and Blair “could file a lawsuit about that with his lawyers since he likes to sue people” (doc. 87 at ¶ 117).

         Based on these facts, when considered under the Iqbal/Twombly plausibility standard, Blair has sufficiently stated a retaliatory discipline claim based on Gerke instructing or causing the issuance of a conduct violation to Blair and placing Blair in administrative segregation. Consequently, Gerke has not established he is entitled to dismissal of Blair's claim per Fed.R.Civ.P. 12(b)(6).

         III. Defendants' Motion for Summary Judgment on Counts I, II, III, V, and VI

         A. Facts

         For the purpose of this Order, the Court finds the following facts are supported by the record.

         1. The April Attack

         On April 7, 2015, the day Blair arrived at SCCC, Blair was attacked from behind and stabbed approximately six or seven times with a makeshift metal knife by another inmate, Qusai Mahsin (“April attack”). (SOF 1, 11.) At the time of the April attack, Blair did not know he would be attacked that day, did not know his attacker or why his attacker stabbed him. (SOF 9, 10, 68) The fight occurred indoors, and prison officials quickly intervened and stopped the fight. (SOF 8, 12.) Bates, a correctional officer at SCCC, witnessed the April attack. (SOF 70.)

         2. The June Attack

         After the April attack, while Blair was in administrative segregation on or about April 13, 2015, Blair told Deputy Assistant Warden Terry he had a “hit” on him and needed to be placed in protective custody or to be transferred to another institution. (SOF 76, 77.) Terry responded that Blair would not be transferred or placed in protective custody because of his history as an “aggressive” inmate. (SOF 79.) Terry first met Blair more than twenty years before at another prison. (SOF 80.) According to Blair, Terry's statements amounted to a threat that Blair would stay in administrative segregation indefinitely and therefore Blair's only options were to remain in administrative segregation indefinitely or return to general population. (SOF 15, 17, 77, 81, 85.) As a result, Blair signed three protective waivers-on April 15, May 13, and June 5-and Terry released him into general population on June 5, 2015. (SOF 15, 17, 77, 81, 85.)

         On June 7, 2015, two days after Blair was released into general population and assigned to Unit 6, Blair was attacked again by other inmates at SCCC (“June attack”). (SOF 17-18, 88; Ex. C, Blair Dep. 27:16-29:6.) The June attack occurred outside, in a walkway of the prison's main yard. (SOF 19.) Blair was attacked from behind and stabbed approximately eight times. (SOF 22.) Blair did not see his attackers nor did he know he would be attacked that day. (SOF 20-22.) Prison officials did not respond in time to intervene. (SOF 23.)

         At or around the time Blair was attacked, Bates was standing approximately twenty feet away outside the dining room door. (SOF 116.) Another inmate, Scottie Willett, was working in food service and was leaving the dining hall around the time of the attack. (SOF 117.) Willett passed Bates and approached Blair. (SOF 119-121.) According to Willett, Bates was smoking a cigarette. (SOF 119.) Willett then got Bates' attention and called her over to Blair. (SOF 121.) Willett testified that if he were standing where Bates was standing, he would have been able to see Blair. (SOF 122.) Bates walked over to Blair, asked if Blair was okay, and called in a medical emergency. (SOF 23-24, 123.) Blair reports he was lying on the ground for several minutes before Bates responded to his calls for help. (SOF 123-24.) Blair received urgent medical care and treatment following the attack. (SOF 25.) As a result of the June attack, Blair sustained injuries including puncture wounds to his neck and back, a cervical spinal fracture, a penetrating spinal cord injury, temporary paralysis in his right arm and leg, and severe nerve damage that may be permanent. (SOF 25, 133.)

         The June attack was carried out by inmates assigned to Unit 5-Terrell Dawson, Vonerrick Williams, and Monty Ross (“Unit 5 offenders”). (SOF 89, 107-15.) The Unit 5 offenders entered the main yard where Blair and other Unit 6 inmates had been released for their recreational period. (SOF 86, 90.) Security footage from the time of the attack shows the Unit 5 offenders freely leaving Unit 5, proceeding down to the walkway, stabbing Blair, then immediately returning to Unit 5. (SOF 106-13.) Per MDOC procedures, inmates assigned to different housing units are not permitted to recreate on the prison's yard for safety and security reasons. (SOF 92.)

         The June attack occurred during a ten-minute window that began at 1:20 p.m. when inmates could be released from their housing units to “call outs” to attend medical appointments, jobs, religious services, and other programs. (SOF 102.) The only reason to release anyone from Unit 5 would be if they had a “call out.” (SOF 95, 102, 104-05, 114-15.) Housing unit officers receive a list of inmates who have call-outs during that ten-minute window. (SOF 103.) However, records of “call outs” are destroyed and not kept. (SOF 114-15.)

         Correctional officer Rippinger was assigned as the Unit 5 sergeant who was responsible for overseeing inmate “call outs” and movement. (SOF 96.) Correctional officer Tausend was responsible for opening the cell doors in Unit 5. (SOF 98.) Correctional officers Holland and Roach were also assigned to Unit 5. (SOF 97.) Holland, Roach and Tausend claim not to know why the Unit 5 offenders were released from their housing unit when Blair was attacked. (SOF 114.) Holland observed that Unit 5 had been quiet for two days prior to the June attack, and he noticed some of the offenders who were typically loud and active in the yard were quiet. (SOF 126.)

         Correctional officer Olalde was standing in the yard in front of the Unit 5 doors monitoring inmates around the time of the June attack. (SOF 106.) Leading up to the attack on that day, Olalde observed “abnormal behavior on the yard” and he had a “gut feeling . . . something wasn't right.” (SOF 127.) Olalde twice reported his “gut feeling” of suspicious activity. (SOF 128.) Olalde first reported his suspicion to the Captain's office in the morning and reported it again after Unit 5 returned from its noon meal. (SOF 129.) He then called to give the Captain's office a “heads up that something could happen on the yard that day.” (SOF 130.) When the attack on Blair occurred that day, Olalde was not surprised. (SOF 131.)

         In the MDOC investigation into the June attack, Blair reported there was a threat group known as “Fam” that had a hit on Blair because of incidents that had occurred years prior concerning Blair's brother. (SOF 69.)

         3. JCCC

         Following the June attack, Blair was transferred to JCCC on July 28, 2015, and placed in temporary administrative segregation. (Doc. 87 at ¶ 76; Blair Dep. 76:3-9.) In September 2015, Blair was assigned to protective custody in Unit 6 at JCCC. (Doc. 87 at ¶ 89; Ex. 20, Gerke Dep. 14:3-16; Blair Dep. 81:3-7, 92:3-6.) On October 21, 2016, Blair placed a sheet of newspaper on the floor outside of his cell to collect his clean laundry, which is a common practice among inmates. (SOF 195-96.) Officer Jimmy Anderson told Blair he had a violation coming for littering. (SOF 197.) Then, Officer Anderson issued Blair a conduct violation for Rule 18.3- interfering with count. (SOF 198.) The October 21 conduct violation states:

while [Officer Anderson] was performing count in A-wing [] Blair had newspapers laying in front of his cell and when [Officer Anderson] went to remove it he kept claiming its[sic] for laundy[sic] and allowed to have it was going to file on me. Which places himself in violation of 18.3 interfering with count.”

(SOF 30.)

         Consequently, Blair was sanctioned with disciplinary segregation and then administrative segregation beginning on October 27, 2016. (Doc. 87 at ¶ 112; SOF 199.) Gerke recommended the Administrative Segregation Committee place Blair in administrative segregation. (SOF 200.) Gerke is the functional unit manager for protective custody in Unit 6 at JCCC and is in charge of Unit 6's daily operations. (SOF 192-93; Gerke's Dep. 14:3-16.) Gerke's responsibilities as functional unit manager include supervising unit staff. (SOF 194.) While Blair was in administrative segregation, Gerke told Blair he does “not belong in [Gerke's] PC unit” and he doesn't “want [Blair] over here.” (SOF 201.) Another office, the functional unit manager for administrative segregation, also told Blair that Gerke did not want Blair in protective custody. (SOF 202.)

         As a result of the October 21 conduct violation, Blair was confined to administrative segregation from October 27, 2016, until January 5, 2017. (SOF 203.) When Blair was returning to the protective custody unit, Gerke told another inmate “if Blair makes one wrong move, he will bury him in [administrative segregation], and Blair can file a lawsuit about that with his lawyers since he likes to sue people.” (SOF 204.) Blair admits he has never received a conduct violation directly from Gerke. (SOF 29.) According to Blair, “everything that goes on in [Unit 6] for something like that comes from Gerke.” (SOF 29.)

         4. MDOC's Offender Grievance Procedure

         MDOC's grievance procedure details a three-step process. (SOF 251.) First, the inmate files an Informal Resolution Request (“IRR”) within fifteen days of the alleged incident giving rise to the grievance. (SOF 252, 255) At the time an inmate requests an IRR from the staff member responsible for processing IRRs, the inmate should state the subject of the complaint. (SOF 256; Ex. P at 10.) The staff member receiving the IRR shall review the complaint to ensure it is within procedural guidelines. (SOF 258; Ex. P at 13.)

         Next, if dissatisfied with the IRR response, the inmate files an Offender Grievance within seven days of receiving that response. (SOF 253; Ex. P at 15.) Once a grievance response is prepared, “[t]he offender will review the response in the presence of the grievance office staff member or designee and indicate his response by marking either accept or appeal on the offender grievance form[, ] and “[t]he offender will sign and date the form.” (SOF 161-62, 259; Ex. P at 16.)

         Then, if dissatisfied with the Offender Grievance response, the inmate submits a Grievance Appeal form to the grievance officer within seven days. (SOF 254; Ex. P at 17.) Failure to timely submit a grievance appeal “will result in the appeal being considered abandoned.” After receiving the grievance appeal response, the inmate “has exhausted the grievance process.”

         5. Grievance SCCC-15-1266

         Blair filed an IRR on June 22, 2015, regarding the June 7 attack, which was assigned complaint number SCCC-15-1266. (SOF 134-35.) In the IRR, Blair identifies his issue as “negligent security by [prison] staff.” (SOF 137; Doc. 93-6 at 2.) Blair made the following statements in his IRR. He was stabbed by inmates assigned to Unit 5, inmates who were “out of bounds, ” and who had been under observation by staff. (SOF 136.) “The inmates involved in assaulting [him] were able to move freely about the institution only with the aid of security staff assigned to Unit 5 on the date in question.” (SOF 137.) “The assault was a second attempt on [his] life in connection with the assault against [him] 4-7-2015.” (SOF 138.) Blair sought the following remedies: “transfer[] to SECC; appropriate security measures enforced; each involved party held accountable; PC needs met by placement in 2D and not segregation as punishment for being stabbed.” (SOF 139.)

         It was later noted on the IRR that Blair was transferred to JCCC on July 28, 2015. (SOF 140.) MDOC Offender Grievance procedure provides that “[o]ffenders who transfer from one institution to another and have a complaint about the institution from which they transferred, may bypass the informal resolution request process and proceed by filing a grievance within 15 calendar days of the transfer date.” (SOF 141.) Blair filed an offender grievance relating to SCCC-15-1266, which is dated August 3, 2015, and marked “received” on August 7, 2015. (SOF 142-43.)

         Blair made the following statements in his offender grievance regarding the June 7 attack, and events leading up to it. “[A]fter [he] was assaulted the first time and placed in administrative segregation” Terry visited him at his cell and told him he didn't know what to do with him, and that he would “probably leave [him] here in this cell until I decide what to do.” (SOF 144; Ex. W at 4.) Blair took Terry's statement to mean that Terry would assign him to “long-term indefinite segregation.” (SOF 145; Ex. W at 4.) Terry “had a responsibility to take reasonable measure to ensure prevention[sic], at least try, of me being physically assaulted a second time[.]” (SOF 146.) In reference to the June attack by the Unit 5 offenders, Blair stated he had been informed by an officer that these inmates were acting “suspicious” and looked “like they were up to something[.]” (SOF 147.) Blair also stated that it was “the obligation of prison officials to keep [him] safe from further harm of prisoner violence” and that “the negligence of the prison officials not to do so was deliberate indifference of [his] safety.” (SOF 147.) Blair also specifically mentioned Bates, stating “[i]n the close vicinity was [] Bates; whom stated she had no idea I was being assaulted, (though she was less than 10 feet away, releasing inmates from the dining room's front door) nor that I was on the ground until she heard someone grunting[.]” (SOF 148; Ex. W at 5.)

         Blair filed another offender grievance, dated August 14, 2015, which was marked “duplicate filing” by MDOC. (SOF 150.) In the August 14 grievance, Blair stated “the group of inmates involved in assaulting [him] were being ‘observed' moving suspiciously[;]” “[t]he same group of inmates were released by ‘control-bubble' officers of housing Unit 5[;]” and “Wardens and officers were aware-especially after the first assault-of the potential further risk to my life and had a legal obligation to prevent the attempted murder from occurring.” (SOF 152-53; Ex. W at 8.) In addition, Blair states Bates was “present and/or in close proximity” to both attacks. (SOF 155; Ex. W at 9.) Blair asked for the names of the officers assigned to Unit 5 on the date and time of the June attack, and “that [his] previous grievance under this same number . . . be attached/filed in corroboration with the grievance as they pertain to the same complaint of injury.” (SOF 154, 156.) Blair never received a response to the August 14 grievance. (SOF 157.)

         On August 31, 2015, the SCCC grievance office denied Blair's August 6 grievance. (SOF 158.) The grievance response stated that Blair had “the right to appeal this decision[, ]” and that Blair “must file an appeal form with the grievance officer within seven (7) days from the day [he] receive[d] this decision.” (SOF 159; Ex. W at 4.) Nine days later, on September 9, 2015, Blair signed the grievance response and checked the box on the form indicating he would “appeal this decision.” (SOF 160.) The grievance form does not state when the grievance denial was provided to Blair.

         Blair submitted a grievance appeal regarding SCCC-15-1266, which is dated September 9, 2015, and marked “received” by MDOC on September 18. (SOF 163.) In his grievance appeal, Blair stated he had a “right to be protected and to live safely in the general population as opposed to being confined to supermax security housing as a victim of an assault[, ]” and he “repeatedly asked to also be transferred to another facility, as an alternative, after [he] was assaulted the first time[.]” (SOF 164-65.) Blair's grievance appeal was denied on September 29, 2015. (SOF 166.) The certification by the SCCC Institutional Grievance Officer signed on January 19, 2016, attached to SCCC-15-1266, states Blair had “exhaust[ed] these complaints pursuant to federal law[.]” (SOF 167.)

         6. Grievance JCCC-16-2249

         On December 2, 2016, JCCC staff received Blair's IRR which was assigned complaint number JCCC-16-2249, complaining of the “discriminatory practice deliberately denying [him] reasonable safety and assignment to protective custody.” (SOF 231-32.) Blair made the following statements in the IRR. According to Blair, Gerke had retained him in administrative segregation for a period of six months. (SOF 233; Ex. U at 2.) Gerke had referred to Blair as a “rattlesnake, ” a “wolf in sheep's clothing, ” and told Blair he does not “belong in PC.” (SOF 234.) On October 21, 2016, Blair was issued a Rule 18.3 conduct violation for having a piece of newspaper on the ground outside his cell to collect his laundry. (SOF 235.) After Blair received the conduct violation, he heard Gerke say “I was looking for a reason to get him out of here . . .” (SOF 236.) “Gerke and the staff/officials . . . have continuously placed high barriers preventing me from seeking PC, and targeting me when I do no[t] desist my PC request.” (SOF 237.) His IRR notes that Blair had repeatedly asked for this IRR form starting on October 28, 2016, and only received it the evening of November 22, 2016. ...

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