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Terry v. Fields

United States District Court, E.D. Missouri, Eastern Division

December 28, 2017

EDWARDS TERRY, Plaintiff,
v.
JEROME FIELDS and KEITH LENHARTH, Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         Plaintiff Edwards Terry claims in this action, filed under 42 U.S.C. § 1983, that Defendants, jail officials at the jail where Plaintiff was a pre-trial detainee, violated Plaintiff's constitutional rights by their deliberate indifference to a serious risk of harm when they failed to protect Plaintiff from a sexual assault by another inmate. The matter is before the Court on Defendants' motion for summary judgment. For the reasons set forth below, the motion for summary judgment on the merits will be denied, but the action will be dismissed without prejudice for Plaintiff's failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act.

         BACKGROUND

         Plaintiff alleged in his pro se complaint that on February 11, 2016, he told Defendant Keith Lenharth that an inmate named Rambo told Plaintiff “how fine [his] ass was and on more than one occasion had grabbed [his] ass and squeezed it.” Plaintiff asked Lenharth to place him in protective custody because he was afraid of being raped by Rambo. Lenharth responded that if Plaintiff were not gay, that would not happen, and refused Plaintiff's request. Plaintiff asserted that he believed Lenharth knew Plaintiff was gay.

         Plaintiff further alleged that on Monday, February 15, 2016, he sent a letter by institutional mail to Defendant Jerome Fields, requesting protective custody because he feared Rambo was going to rape him. He did not receive a reply from Fields, and was not placed in protective custody. It is undisputed that on February 18, 2016, Rambo sexually assaulted Plaintiff. Plaintiff alleged that at the time, he resided in a cell in the Medical Dorm of the jail. That night he wrote another letter to Fields, this time telling him about the assault. The next day, February 19, 2016, Plaintiff spoke with a psychologist whom Fields sent to talk to Plaintiff about the assault and to an investigator from the jail's internal affairs division.

         Plaintiff filed this action on August 3, 2016, seeking $750, 000 in damages from Defendants in their individual capacities for violation of his Eighth and Fourteenth Amendment rights in failing to protect him from the known danger of being sexually assaulted. Defendants argue that they are entitled to summary judgment because (1) Plaintiff cannot establish they were aware of facts from which they could infer the existence of a substantial risk of serious harm to Plaintiff, and Defendants did not draw such an inference; (2) they are entitled to qualified immunity because their conduct comported with established law; and (3) Plaintiff failed to exhaust his administrative remedies, in accordance with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), by not timely filing an Informal Resolution Request (“IRR”).

         More specifically, with respect to Lenharth, Defendants submit a copy of the jail Sign-In Roster for February 11, 2016, that shows that Lenharth was assigned to the second floor of the jail, while from February 9 to February 22, 2016, Plaintiff resided in the Medical Dorm, located on the first floor. Defendants assert that due to his assignment on the second floor, Lenharth would have had no interaction with inmates in the Medical Dorm. With respect to Fields, Defendants point to Fields's deposition testimony that he never got a letter from Plaintiff. Fields became aware that Plaintiff was sexually assaulted because Delores Shaw, a case worker at the jail, told Fields she received a hand-written note from Plaintiff on February 19, 2016, describing the sexual assault. Upon notification by Shaw, Fields instructed that an investigation be conducted. Each Defendant attested by affidavit that Plaintiff did not inform him that he (Plaintiff) was afraid of being raped by Rambo, and did not request protective custody. Defendants also rely on Plaintiff's response during his deposition (taken before Plaintiff was appointed counsel) to the question of how he knew Defendants drew an inference of a substantial risk of harm to Plaintiff: “Like I say, I don't know if they did or not 'cause they never acted on it.”

         Defendants' qualified immunity argument is likewise based on their assertion that they were not aware of any facts from which they could infer the existence of a substantial risk of harm to Plaintiff before the assault. In support of their failure-to-exhaust argument, Defendants submit the affidavit of Scott Weber, the jail employee who received, reviewed, and responded to inmate grievances during the time in question. He attests that he had no record or recollection of any IRRs, grievances, or emergency grievances filed by Plaintiff regarding threats of sexual assault. Defendants also submit the grievance procedures in place at the jail. These procedures provide that all IRRs and grievances must include, among other things, a brief statement of the facts of the incident at issue, and the “name of staff person involved or notified and how the inmate was affected.” EFC No. 38-3.

         In response (prepared with the assistance of appointed counsel), Plaintiff submits his declaration (ECF No. 51-1), attesting to the facts set forth in the complaint, as described above, and argues that summary judgment is precluded by the presence of genuine issues of fact with respect to whether Plaintiff told Defendants about his fears and requested protective custody. To his allegations in the complaint, he adds that on the night of the assault, there were no locks on his cell door in the Medical Dorm and Rambo was able to freely enter his room.

         Plaintiff also declares that on the night of February 18, 2016, he wrote an “Emergency Grievance, ” and printed those words on the outside envelope, and gave it to “Officer Anderson” at the jail, who told him he would put it into the IRR box. Plaintiff submits a copy of this grievance, which describes the assault and asks for an investigation, including into why Rambo, against whom Plaintiff wished to file sexual abuse charges, was in Plaintiff's cell “without official staff knowledge.” ECF 51-1 at 8-9. It does not mention Defendants or that Plaintiff told them (or anyone else) about his fears and requested protective custody before the assault. Petitioner states that he never received a response to his Emergency Grievance, and further, that on February 24, 2016, he asked a case worker at the jail for an IRR form. He waited two days, and then wrote a handwritten IRR in which he explained “the same thing I explained in my Emergency Grievance.” He addressed it to Weber, placed in in the IRR box, and saw Weber remove it the next day. He never got a response to the IRR, and after 150 days, decided to file the present lawsuit.

         Defendants submit in reply a copy of a form showing that Anderson was at training from 8:00 a.m. to 5:00 p.m. on February 18, 2016, and thus could not have been at the jail when Plaintiff allegedly gave him an Emergency Grievance. They also submit an affidavit by Shaw in which she attests that she does not recall any interaction with Plaintiff on February 24, 2016, and does not give out IRR forms to inmates. Thus, Defendants argue, the record shows that Plaintiff did not initiate or complete the grievance process. Therefore, they contend, their motion for summary judgment should be granted.

         DISCUSSION

         Summary Judgment Standard

         Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be entered “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, a court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all ...


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