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Garrett v. Bernsen

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

February 5, 2018

HERBERT L. BERNSEN, in his official capacity, Defendant.



         This matter is before the Court on Defendant Herbert L. Bernsen's Motion to Dismiss (Doc. 28). The motion is fully briefed and ready for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(c)(1) (Doc. 39). For the following reasons, Defendant's Motion will be GRANTED.

         I. Legal Standard for a Motion to Dismiss

         Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Federal Rule of Civil Procedure 12(b)(6) provides for a motion to dismiss based on the “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss a complaint must show “ ‘that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to defeat a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). The pleading standard of Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). All reasonable inferences from the complaint must be drawn in favor of the nonmoving party. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 1999).

         II. Background

         On January 19, 2017, pro se Plaintiff Dwayne Garrett (“Plaintiff”)[1] filed a Complaint pursuant to 42 U.S.C. § 1983, a “Motion for Injunctive Relief and Counsel, ” and a “Motion for Counsel” (Docs. 1, 4, 5). On March 7, 2017, the Honorable Carol E. Jackson granted Plaintiff's request for counsel and directed the Clerk of Court to appoint counsel pursuant to the Plan for the Appointment of Pro Bono Counsel (Doc. 8). Judge Jackson also denied Plaintiff's motion for injunctive relief in which he requested to be moved to a federal prison, without prejudice, in light of the appointment of counsel (Doc. 9). On May 15, 2017, Plaintiff, with the assistance of newly appointed counsel, filed an Amended Complaint pursuant to 42 U.S.C. § 1983 against Defendant Herbert L. Bernsen (“Defendant”) in his official capacity only for failure to protect (Count I) and deliberate indifference to serious medical needs (Count II) (Doc. 23). Defendant Bernsen is the Director for the St. Louis County Department of Justice Services, the organization responsible for the management, operation, and security of the Saint Louis County Justice Center (the “Justice Center”) (Id.). Plaintiff indicates that:

A reasonable opportunity for further investigation and discovery will likely reveal evidentiary support for claims against other defendants, namely, Justice Center staff member(s) in their individual capacity(ies) for failure to protect Plaintiff and for deliberate indifference to his serious medical needs, in violation of Plaintiff's rights under the Eighth and Fourteenth Amendments to the United States Constitution.

(Id. at ¶5 n.1). As of today's date, Plaintiff has not filed an amended complaint and the time to so under the Case Management Order has expired (See Doc. 44).

         The facts, in the light most favorable to Plaintiff, are as follows. On October 12, 2016, Plaintiff began his period of incarceration at the Justice Center (Doc. 23 at ¶6). During intake, Plaintiff informed the intake officials including a nurse and an officer on duty that he is a homosexual transgender person who receives female hormone therapy and has breasts (Id. at ¶7). He further informed the intake officials that due to his sexual identity and physical traits, the facility should be mindful of his safety and careful in selecting his cellmate (Id.). However, on October 13, 2016, booking officers placed Plaintiff with a cellmate who was exhibiting plainly observable behavioral abnormalities (Id. at 8). Such abnormalities included pacing his cell in the nude, and lifting up Plaintiff's bed covers to look for a cellular phone despite a clear restriction on cellular phones in the facility (Id.).

         That same day, Plaintiff was permitted to briefly leave his cell and go to a common area (Id. at ¶9). While there, Plaintiff told the officer on watch that he was fearful of his safety due his cellmate's strange behavior (Id.). The officer told Plaintiff that the Justice Center does not change cellmate assignments for the “convenience” of the inmates (Id.). He instructed Plaintiff to return to his cell (Id.).

         That night, Plaintiff's cellmate woke him up and attempted to force him to perform oral sex (Id. at ¶10). When Plaintiff refused, the cell mate violently assaulted Plaintiff, sodomized him with a travel-sized shampoo bottle, and raped him (Id.). Afterward, Plaintiff was bleeding from his rectum (Id. at ¶11). Plaintiff used a towel to clean himself and changed out of his bloodied boxers and pants into a clean uniform (Id.).

         Although the Justice Center has a policy requiring officers to monitor inmate activities at night by patrolling the halls surrounding inmate cells and pushing buttons, that night officers were socializing in a rotunda outside the cellblock (Id. at ¶¶12-13). Consistent with prior practice, officers only rushed back into the cellblock to push the buttons when required, and then returned to the rotunda to socialize (Id. at ¶13).

         After the incident, Plaintiff's cellmate pushed a call button to summon an officer under the pretext that he needed to see his girlfriend (Id. at ¶15). Once an officer arrived, Plaintiff immediately reported to the officer that he had just been raped by his cellmate and needed medical attention (Id. at ¶16). Plaintiff pleaded with the officer to remove him from the cell but the officer refused (Id.). Plaintiff, in an effort to be removed, told the officer he was suicidal, causing the officer to remove Plaintiff from the cell and strap him to a metal chair (Id. at ¶¶17-18). The officer then threatened Plaintiff, telling Plaintiff that he would wish he had simply stayed in his cell (Id. at ¶18).

         Approximately twenty minutes later, a nurse arrived (Id. at ¶19). Plaintiff explained to the nurse that he was not suicidal but had just been sexually assaulted and was bleeding from his rectum (Id.). The nurse told Plaintiff that because Plaintiff reported the he was suicidal, Justice Center procedure prohibited Plaintiff from returning to his cell until a psychologist could examine him (Id. at ¶20). Nonetheless, the nurse allowed Plaintiff to return to his cell (Id.). ...

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