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Michelle Ortiz, Plaintiff v. George Voinovich, et al., Defendants
Case No. C-2-98-1031
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION
211 F. Supp. 2d 917; 2002
U.S. Dist. Lexis 19607
March 29, 2002, Decided
Plaintiff Michelle Ortiz brings
this action under 42 U.S.C. § 1983 against defendants former Governor George
Voinovich, Warden Shirley Rogers, Prison Investigator Rebecca Bright, and
Cottage Manager Paula Jordan. n1 This matter is before the [*921] Court on
defendants' March 2, 2001 motion for summary judgment (doc. 52). For the
reasons set forth below, defendants' motion for summary judgment is GRANTED IN
PART and DENIED IN PART.
The complaint alleges that Ortiz
was incarcerated at the Ohio Reformatory for Women at Marysville on November 8,
1996 when Corrections Officer Douglas Schultz went into her room, fondled her
breasts, and made lewd comments. The complaint further alleges that Ortiz
complained to defendant Jordan, but she took no steps to protect her. Then, the
complaint alleges, on November 9, 1996, Schultz sexually assaulted Ortiz, and
when she reported the assault, defendants subjected her to punishment by placing
her in solitary confinement.
Schultz is not a party to this
lawsuit. The main issue for decision is whether there is evidence from which a
jury could conclude by a preponderance that defendant Jordan knew of Schultz's
November 8 sexual assault and subjected plaintiff Ortiz to cruel and unusual
punishment by failing to prevent Schultz's November 9 sexual assault.
I. Motion to Strike
Defendants move to strike plaintiff's memorandum in opposition to
defendants' motion for summary judgment. Plaintiff was granted a 14-day
extension to respond to the motion for summary judgment. The deadline for
plaintiff to file her response was May 11, 2001. See March 27, 2001 Order (doc.
54). Plaintiff filed her response on May
18, 2001.
"Failure to comply with [S.D. Ohio Local Rule 7.2] may result in
the imposition of sanctions." S.D. Ohio L. Rule 7.2(c). The Court declines
to impose sanctions on plaintiff for failure to submit her response brief
before the May 11, 2001 deadline. Accordingly, defendants' May 22, 2001 motion
to strike plaintiff's memorandum in opposition to defendants' motion for
summary judgment (doc. 58) is DENIED.
It
should be noted that plaintiff opposes the motion for summary judgment only as
it pertains to defendant Paula Jordan. Although her failure to oppose the
motion as it pertains to the other defendants does not warrant an automatic
grant of summary judgment for those defendants, see L. Rule 7.2(a)(2),
plaintiff has presented no arguments nor produced any evidence contrary to defendants'
motion as it relates to defendants Voinovich, Rogers, and Bright.
II. Allegations in the Complaint
Ortiz alleges that on November
8, 1996, n2 Corrections Officer Douglas Schultz went into her room, fondled her
breasts, and made lewd comments. Schultz threatened to "get her
tomorrow." November 9, 1996 was scheduled to be, and in fact was,
Schultz's last day of employment at the Marysville Reformatory for Women.
Compl., PP12-13.
Around 2:00 p.m. on November 9, 1996, Ortiz
informed Corrections Officer Hall about Schultz's actions. Hall took Ortiz to
see Cottage Manager Paula Jordan. Ortiz informed Jordan about the assault and
the threat Schultz made. Compl., PP15-16.
Ortiz alleges that later on
November 9, 1996, Schultz made a sexually inappropriate comment to her. As she
was asleep, [*922] Schultz sexually assaulted Ortiz. Compl., PP17-18.
On November 10, Ortiz reported the assault to Corrections Officers Hall and
Hollenbacker. Ortiz then saw Prison Investigator Bright and Warden Rogers, who
instructed her to make out a written statement. On the next day, Ortiz appeared
before Bright and Rogers and again explained what had happened. Bright
commented that the charge was "a
serious offense" and that Ortiz would be put in protective custody.
Compl., PP20-21.
Ortiz alleges that instead of being put in
protective custody she was placed in solitary confinement on November 12,
despite having committed no disciplinary infractions. Ortiz was shackled and
handcuffed on her trip to "the hole" even though there was a standing
order prohibiting ankle restraints on Ortiz. While in the hole, Ortiz was not
provided with adequate heat, clothing, bedding, or blankets. The cell floor was
covered with vomit. Ortiz's extremities became swollen. Compl., PP23-25.
On November 13, Ortiz was taken
to Bright's office, again in shackles. Bright allegedly stated, "O.k.,
you've been gone a couple of days. Whether or not you go back to your cottage
depends on your story." Ortiz told Bright that her prior statements were
true and accurate. After the meeting with Bright, Ortiz returned to
segregation. Compl., PP26-27. She was then taken to the infirmary. Compl., P30.
Ortiz's parents made telephone calls to
prison administrators, including Rogers and Bright. These prison officials
allegedly lied to Ortiz's parents by telling them that Ortiz was fine and in
protective custody. Ortiz's parents called Governor Voinovich's office and
informed his assistant, Matt Peterson, about their daughter. Petterson assured
them that he would relay the information to Governor Voinovich. Compl.,
PP28-29.
On November 20, Ortiz was taken
to Bright's office, where she took, at her request, a polygraph test. The
person administering the test concluded that Ortiz was telling the truth about
the assaults. On the same day, Ortiz was returned to her room in the cottage.
Compl., P31.
The complaint makes the following Eighth
Amendment claims: failure to protect against defendant Jordan; violation of due
process and denial of medical treatment against defendants Bright and Rogers;
and denial of medical treatment against defendant Voinovich.
III. Summary Judgment
Summary judgment is governed by Rule 56(c) of the Federal Rules of Civil
Procedure which provides:
The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.
"This standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)
(emphasis in original); Kendall v. The Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984).
Summary judgment will not lie if the dispute about a material fact is
genuine; "that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson, 477 [*923] U.S. at
247-248. The purpose of the procedure is not to resolve factual issues, but to
determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th
Cir. 1978). Therefore, summary judgment will be granted "only where the
moving party is entitled to judgment as a matter of law, where it is quite
clear what the truth is, ... [and where] no genuine issue remains for trial,
... [for] the purpose of the rule is not to cut litigants off from their right
of trial by jury if they really have issues to try." Poller v. Columbia
Broadcasting Systems, Inc., 368 U.S. 464, 467, 7 L. Ed. 2d 458, 82 S. Ct. 486
(1962); accord, County of Oakland v.
City of Berkeley, 742 F.2d 289, 297 (6th Cir. 1984).
In
a motion for summary judgment the moving party bears the "burden of
showing the absence of a genuine issue as to any material fact, and for these
purposes, the [evidence submitted] must be viewed in the light most favorable
to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144,
157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (footnote omitted). Inferences to
be drawn from the underlying facts contained in such materials must be
considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S.
654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Watkins v. Northwestern Ohio
Tractor Pullers Association, Inc., 630 F.2d 1155, 1158 (6th Cir. 1980).
If
the moving party meets its burden and adequate time for discovery has been
provided, summary judgment is appropriate if the opposing party fails to 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. v. Catrett, 477
U.S. 317, 322. The mere existence of a scintilla of evidence in support of the
opposing party's position will be insufficient; there must be evidence on which
the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251 (quoting
Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867
(1872)). As is provided in Fed. R. Civ. P. 56(e):
When a motion for summary judgment is made
and supported as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his pleading, but his response, by affidavits or
as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him.
Thus, "a party cannot rest on the
allegations contained in his ... [pleadings] in opposition to a properly
supported motion for summary judgment against him." First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 259, 20 L. Ed. 2d 569, 88 S. Ct.
1575 (1968) (footnote omitted).
IV. Discussion
A.
Defendant Jordan
The day after Schultz first
sexually assaulted Ortiz and threatened to "get her tomorrow," Ortiz
made the situation known to Jordan. Ortiz argues that Jordan should be held
liable for failing to take the actions necessary to prevent Schultz from assaulting
Ortiz later that day.
Prisoners have a constitutional
right to be protected from the violence of other prisoners and prison
officials. Farmer v. Brennan, 511 U.S.
825, 833-34, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); Wilson v. Yaklich, 148
F.3d 596, 601 (6th Cir. 1998). However, prison officials overstep
constitutional bounds only when they "fail to take reasonable measures to
protect [*924] inmates against substantial risks of serious harm of which they
have knowledge." Wells v. Jefferson County Sheriff Dep't, 159 F. Supp.2d
1002, 1010 (S.D. Ohio 2001) (citing Farmer, 511 U.S. at 837-88; Street v.
Corrections Corporation of America, 102 F.3d 810, 814-15 (6th Cir.1996)).
Although an inmate need not show that "he has been the victim of an actual
attack to bring a personal safety claim, he must establish that he reasonably
feared such an attack." Thompson v. County of Medina, 29 F.3d 238,
242 (6th Cir. 1994) (citing Marsh v. Arn, 937 F.2d 1056, 1062 n.5 (6th Cir.
1991)). An inmate must
show that a prison official acted with deliberate indifference in failing to
protect the inmate against the risk of assault. McGhee v. Foltz, 852 F.2d 876,
880-81(6th Cir. 1988); see also
Wilson, 148 F.3d at 601; Wells, 159 F. Supp.2d at 1010.
Defendants have submitted an
affidavit from Jordan. Defs.' Mot. for Summ. J. Ex. D, Feb. 2001 Aff. of Paula
Jordan. Corrections Officer Hall brought Ortiz to her office on November 9,
1996 at approximately 2:15 p.m. Jordan Aff., P3. Hall then left Jordan's
office. Id. Ortiz told Jordan about a corrections officer rubbing her shoulders
and touching her breast. Id., P4. According to Jordan, Ortiz would not tell her
the identity of the corrections officer, other than to indicate that the person
was a male. Id. Ortiz did not tell Jordan that the officer had threatened to
"get her." Id.
Jordan believed that Ortiz was
"calm and in control of the situation [and] did not appear to be
afraid." Id., P5. "She did not appear worried that the officer would
try to touch her again." Id. Ortiz and Jordan discussed Ortiz staying
around other people to be safer, and Jordan suggested that Ortiz "stay in
the rec room, which is a more open area with more people around." Id.
Ortiz told Jordan "that she did not want anything done about it and she
did not want to get the officer into trouble ... She was adamant about not
reporting the officer." Id.
Jordan then wrote an incident
report, but did not turn the report in until November 12. Jordan reported that
Ortiz told her about a corrections officer rubbing her shoulders and touching
her breast. "The [inmate] would not tell me any other information about
this incident." Defs.' Mot. for Summ. J. Ex. L.
In the written statement Ortiz prepared at Bright and Rogers's request
on November 10, 1996, Ortiz described her meeting with Jordan as follows:
So we [Ortiz and Hall] together went to talk
to her [Jordan]. She informed me that we could report this because no one has
the right to touch you-unless you've done something-and I explained to her that
since the man was leaving tonight-we'll just let it go-to save putting on the
man's record at his age. She said she believes he is somewhat of the old school
in as far as more physical-but not that way. She understood what I was saying
[and] said she would be back on Tuesday-[and] if anything happened tonight do
what you have to do to defend yourself [and] then you'll have to report
it-because that's just not right.
Defs.' Mot. for Summ. J. Ex. I, p. 2.
In
a letter written by Ortiz and sent to her mother, Darlene DeMarchi, Ortiz
stated:
Anyway, [Hall] said he was between a rock and
a hard place [and] I needed to tell Miss Jordan-case Manager-so we went to her
office and he told her who it involved [and] who it was. She said why don't you
tell me about it, first of all was it the man who just walked in as he went
past her window-and said yes. OK-go on-so I went onto tell [*925] her
everything [and] she was mad-she wanted me to report it-but I told her if I can
get through today (Saturday) I just rather do that. She said to use the buddy
system and do anything you have to do to protect yourself if anything happens
...
Defs.' Mot. for Summ. J. Ex. K, p. 4
(typewritten version). n3
Ortiz again described her meeting with Jordan in deposition testimony:
[Jordan] took my story and she asked me at
the time, what did I want to do, what did I want her to do about it. And
I--that's when I told her-- ... I didn't wish to give the man a record. He
jokes around with people a lot, so if he was just joking around, fine, but I
didn't feel comfortable with him threatening me to see me again tonight.
I
wanted her to be aware of what had happened, in case I have any trouble with
him again. She said that was wise for me to come and talk to her and that I told
her I didn't wish to give the man a record. Tonight, being his last night, if
he would just leave me alone for tonight, then he would be gone tomorrow. She
agreed with me. She said that--did I just want to stay around my friends for
the evening and--she knows I don't like to go out, and she said she knew I
didn't like to hang out in the day room, but if I did that just tonight he
would be gone tomorrow. And I said, yes, I would do that.
Feb. 26, 1999 Dep. of Michelle Ortiz,
95:9-96:11.
Based on this evidence, the
Court concludes that Ortiz has created a genuine issue of fact as to whether
she reasonably feared a further sexual attack from Schultz. After the first
attack, Schultz threatened to "get her" the next day before he left
his employment at the Marysville Reformatory for Women. Although Jordan's
affidavit states that Ortiz was "calm" and "did not appear to be
afraid," a jury could find that Ortiz reasonably feared another attack.
Ortiz testified that she "didn't feel comfortable" and that she saw
Jordan based on the concern that she would have "trouble with him
again." Ortiz called her parents and expressed concern to them. Defs.'
Mot. for Summ. J. Ex. F, Transcript of Nov. 9, 1996 Telephone Call.
The Court further concludes that
Ortiz has created a genuine issue of fact as to whether Ortiz made Jordan aware
that she reasonably feared a further sexual attack. Although Jordan denies that
Ortiz told her the identity of the officer or told her that the officer had
threatened her, a jury could reasonably find from the written statement, the
letter, and Ortiz's testimony that Ortiz did inform Jordan of Schultz's
identity and the threat he made. Further, although perhaps not admissible for
the truth of the matter stated, polygraph examiner J.D. Caudhill concluded that
Ortiz truthfully stated that she identified Schultz to Jordan as the officer
who assaulted her. See Pl.'s April 27, 2000 Status Report (doc. 35), Ex. 1.
Finally, the Court concludes
that Ortiz has created a genuine issue of fact as to whether Jordan acted
reasonably once Ortiz made Jordan aware of her fear of assault. Prison
officials must "take reasonable measures to protect inmates against
substantial risks of serious harm of which they have knowledge." Wells v.
Jefferson County Sheriff Dep't, 159 F. Supp.2d 1002, 1010 (S.D. Ohio 2001). The
evidence establishes [*926] the following: Jordan told Ortiz that no one had
the right to touch her; Jordan recommended that Ortiz file a report, but Ortiz
refused and told Jordan to "just let it go"; Jordan instructed Ortiz
to stay around her friends; Jordan recommendedthat Ortiz spend the evening and
night in the day or rec room, where she would be in the open and around other
persons; Jordan told Ortiz to "do anything you have to do to protect
yourself if anything happens"; Ortiz represented to Jordan that she would
use the "buddy system" to safeguard herself that night; and Jordan
filled out an incident report, but did not turn it in until two or three days
later.
A jury could reasonably find
that Jordan should have taken more precautions to safeguard Ortiz from a second
assault. Although a prison official's duty is to ensure reasonable safety and
not to provide absolute protection from harm, Farmer, 511 U.S. at 844, Jordan
could have taken measures to ensure that Schultz would be separated from Ortiz
for the rest of the day. For instance, Jordan could have reassigned Schultz to
another area in the prison or ordered Schultz to take the evening off work.
Jordan could have assigned another officer to keep a close watch on Ortiz and
Schultz. These actions likely would not have been burdensome on prison
administration because November 9 was Schultz's last day and the actions would
have been only temporary.
It
is unclear from the record whether case manager Jordan had the authority to
order these actions, but--in the absence of defendants proving Jordan did
not--defendants are not entitled to summary judgment. Even if Jordan lacked
such authority, a jury could reasonably find that she should have reported the sexual assault to a prison
official who had the authority to separate Ortiz and Schultz. Defendants rely
heavily on Ortiz's insistence that Jordan not report the assault. Ortiz's
wishes should be considered, but they are not conclusive on the issue of
whether Jordan responded reasonably. A jury could find that the threat of harm
to Ortiz was sufficiently serious that Jordan, as case manager, had an
obligation to ensure Ortiz's safety even if it meant overriding Ortiz's wishes.
Indeed, Jordan saw fit to prepare an incident report but failed to turn it in
that day. A jury could view Jordan's failure to turn the report in on a timely
basis as evidence that Jordan did not respond reasonably to the threat of harm
against Ortiz.
Defendants claim that Jordan is nonetheless entitled to qualified
immunity. Government officials performing discretionary functions are afforded
a qualified immunity under 42 U.S.C. § 1983 as long as their conduct "does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
817-18, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Christophel v. Kukulinsky, 61
F.3d 479, 484 (6th Cir. 1995). The question is not the subjective good or bad
faith of the public official, but the "objective legal
reasonableness" of her action in light of clearly established law at the
time the official acted. Anderson v.
Creighton, 483 U.S. 635, 638-39, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). In
order for the violated right to be clearly established, the contours of the
right must be sufficiently clear that a reasonable official would understand
that what she is doing violates that right; in light of pre-existing law, the
unlawfulness of the officials action must be apparent. Anderson, 483 U.S. at 640.
The
burden is on a defendant to plead qualified immunity. Wegener v. Covington, 933
F.2d 390, 392 (6th Cir. 1991). The ultimate burden of proof is on [*927] the
plaintiff to show that the defendants are not entitled to qualified immunity.
Id. When a defendant moves for summary judgment based on qualified immunity,
the plaintiff must (1) identify a clearly established right alleged to have
been violated; and (2) establish that a reasonable officer in the defendant's
position should have known that the conduct at issue was undertaken in
violation of that right. Pray v. City
of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995).
Plaintiff's right to be
protected from violence at prison was clearly established at the time Ortiz
informed Jordan of the sexual assault. Farmer v. Brennan, 511 U.S. 825, 833-34,
128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). Further, if one credits Ortiz's
testimony and evidence, a reasonable official in Jordan's position should have known
that the conduct at issue was undertaken in violation of that right. Jordan did
little to ensure Ortiz would be protected from Schultz. Jordan failed to turn
in the incident report or otherwise notify prison officials of the situation.
Although Jordan told Ortiz to use the buddy system and Ortiz represented that
she would, the prison presumably had a curfew; thus, Jordan knew at some point
in the evening Ortiz would be alone n4 and Schultz would have access to her.
Jordan did nothing to prevent this occurrence. This amounts to deliberate
indifference.
Defendants compare this case to Marsh v. Arn, 937 F.2d 1056 (6th Cir. 1991). In Marsh, an inmate sued prison officials after she was severely beaten by another inmate. On December 18, 1985, inmate Marsh informed lieutenant Furrow that roommate Leonard threatened to sexually assault her. Furrow responded by placing Marsh in the infirmary for the night. On the next day, Leonard renewed her threats and Furrow talked to the two women in her office. Furrow sent both inmates back to their dorm. Furrow then filled out a staff report to the prison's Deputy Superintendent requesting that Leonard be moved to a single room. The court found that Furrow had not acted indifferently to the threat of harm and thus was entitled to qualified immunity. 937 F.2d at 1058.
Marsh is distinguishable. Unlike
Furrow, Jordan did not separate Ortiz and Schultz on the day Jordan became
aware of the threat of harm. Jordan did not meet with Ortiz and Schultz to
assess the likelihood Schultz would carry out his threat. Furthermore, Jordan
did not timely file a report alerting supervisors to the problem and requesting
that Ortiz and Schultz be separated.
Accordingly, defendant Jordan is
not entitled to summary judgment.
B.
Defendants Bright and Rogers
1.
Due Process
On
the day after the second assault, Ortiz met with Bright and Rogers. They
instructed her to make out a written statement. On the next day, Ortiz again
appeared before Bright and Rogers to explain her version of what happened.
Bright commented that the charge was "a serious offense" and that
Ortiz would be put in protective custody.
The
complaint alleges that rather than being put in protective custody, Ortiz was
placed in solitary confinement, or the "hole," as a disciplinary
measure for her accusing Schultz of wrongdoing. The complaint alleges that
Bright and Rogers violated Ortiz's right to due process because [*928] Ortiz's
placement in solitary confinement was retaliatory in nature and not pursuant to
legitimate penological interests. Ortiz contends that she did not commit a
disciplinary violation and that she was placed in segregation without first
being afforded a hearing.
In
determining whether segregation of an inmate from the general prison population
deprives her of a state-created liberty interest protected by the Due Process
Clause, "courts are to determine if the segregation imposes an 'atypical
and significant' hardship on the inmate 'in relation to the ordinary incidents
of prison life.'" Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998)
(quoting Sandin v. Conner, 515 U.S. 472, 483, 132 L. Ed. 2d 418, 115 S. Ct.
2293 (1995)). Administrative segregations generally do not impose an
"atypical and significant" hardship on inmates. Id. (citing
Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995); Mackey v. Dyke, 111
F.3d 460, 463 (6th Cir. 1997)).
On
November 12, 1996, Bright assigned Ortiz to "Security Control for
Investigation" status. Bright Hoffman Aff., PP11-12. Under Ohio Administrative
Code § 5120-9-11,inmates may be placed in security control because of a
rule infraction or a threat to prison
order or inmate security. O.A.C. § 5120-9-11(A). Ortiz was put in "ARN
4," the housing unit in which inmates on security control, administrative
control, local control, and protective control status are placed. Bright
Hoffman Aff., P14.
The
purported reason Bright placed Ortiz in security control is that she disobeyed
a gag order not to talk about the incident to persons other than Bright. Ortiz
"continually discussed the incident" to others. Id., P11. Bright
"was worried about the integrity of the investigation" and wanted to
be able to investigate the allegation and evaluate Ortiz's credibility
"without interference." Id., P13.
The Court concludes that the
segregation of Ortiz imposed an atypical and significant hardship on her. A
jury could reasonably find that Bright and Rogers's purported reason for
placing Ortiz in security control was pretextual. Defendants have not
conclusively justified the imposition of the gag order. According to Bright,
the formal investigation against Schultz ended once he left his position of
employment at the prison. Bright no longer had authority over Schultz. To the
extent Bright continued to investigate the truth of Ortiz's claim once Schultz
left, it is unclear why a gag order was necessary. A jury could find that
Bright imposed the gag order in an attempt to make Ortiz stop claiming that she
was assaulted.
Even if the gag order was legitimately imposed, a jury could find that
Ortiz did not violate it. Ortiz claims that she committed no disciplinary
infractions. At least before the second assault, Ortiz was reticent to speak
about Schultz's conduct. There is no evidence, other than Bright's assertion,
that Ortiz "continually" talked or interfered in any way with the
investigation. Ortiz did discuss the assaults with Officers Hall and
Hollenbacker, Jordan, Bright, and Rogers, as well as her parents, but
defendants have not demonstrated why these discussions would have compromised
the integrity of the investigation.
Upon finding that the gag order
was not legitimately imposed and/ or finding that Ortiz did not violate the
order, a jury could reasonably conclude that Ortiz was put in segregation because
she claimed Schultz assaulted her. Placement in segregation based on
such a retaliatory motive, as opposed to legitimate penological interests, is
an atypical and significant [*929] hardship. It is not an ordinary incident of
prison life for a person claiming to be the victim of sexual assault by a
prison guard to be thrown into "the hole" for no reason other than
the fact she reported the assaults to prison officials. Due process demands
some legitimate justification for putting Ortiz in security control. Prison
regulations which limit the conditions under which inmate can be placed into
segregation create a protected liberty interest. Howard v. Grinage, 6 F.3d 410,
412 (6th Cir. 1993); Beard v. Livesay, 798 F.2d 874, 878 (6th Cir. 1986). Under
Ohio Administrative Code § 5120-9-11(A), placement in security control must be
"because of an alleged rule infraction." n5 If indeed defendants
placed Ortiz in security control even though the conditions of O.A.C. §
5120-9-11 were not satisfied, then she was denied due process. See Howard, 6 F.3d at 413-14 (violation of
due process where inmate's transfer to higher security custody was not for
medical reasons permitted by prison regulations).
Accordingly, defendants Bright and Rogers are not entitled to summary
judgment against Ortiz's due process claim.
2.
Denial of Medical Treatment
The
complaint alleges that Ortiz was not provided adequate heat, clothing, bedding,
or blankets while she was in ARN 4. According to Ortiz, she had jeans, a
t-shirt, a sweatshirt, half a blanket, and one sheet of bedding. Ortiz Dep.,
121:21-122:10. Ortiz vomited on the floor one time, and it was not cleaned up.
Id., 122:25-123:3. Ortiz had a fever and was given two Tylenol tablets. Id.,
123:4-16. The complaint alleges that Ortiz's extremities became swollen. Ankle
shackles were used on Ortiz to transport her to and from ARN-4, despite a
medical order not to use ankle restraints. The complaint further alleges that
Rogers and Bright lied to Ortiz's parents in telephone conversations about
their daughter's well-being.
To
obtain redress for medical mistreatment under the Eighth Amendment, a prisoner
must show a prison official's "deliberate indifference to serious medical
needs" of the prisoner. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d
251, 97 S. Ct. 285 (1976); Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.
1999); Brooks v. Celeste, 39 F.3d 125, 127 (6th Cir. 1994). Specifically, two
requirements must be met. First, the alleged deprivation "must be, objectively,
'sufficiently serious,'" resulting "in the denial of 'the minimal
civilized measure of life's necessities.'" Farmer v. Brennan, 511 U.S.
825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) (quoting Wilson v. Seiter,
501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Rhodes v.
Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981)). Where a
claim is based on a failure to prevent harm, "the inmate must show that he
is incarcerated under conditions posing a substantial risk of serious harm."
Id.
The
second requirement is that the prison official have a "sufficiently
culpable state of mind." Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S.
at 302-303). To be sufficiently culpable, an official must act with
"deliberate indifference" to inmate health or safety. Id.; Wilson, 501 U.S. at 303. That is, the
official must know of and disregard an excessive risk to inmate health or
safety. Farmer, 511 U.S. at 837. Mere
negligence is not sufficient. Id. at
838-39.
[*930] There is no evidence of direct personal involvement by Bright or
Rogers in the conditions allegedly suffered by Ortiz. Section 1983 liability
may not be imposed where there is no involvement on the part of an
official. Searcy v. City of Dayton, 38
F.3d 282, 287 (6th Cir. 1994); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984). Ortiz testified that the mistreatment came from prison guards working in
ARN 4. Ortiz Dep., 120:4-124:14.
Section 1983 liability must be based on more than the right to control
employees. Hays v. Jefferson County,
668 F.2d 869, 874 (6th Cir. 1982); Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999).
[A]
supervisory official's failure to supervise, control or train the offending
individual is not actionable unless the supervisor "either encouraged the
specific incident of misconduct or in some other way directly participated in
it. At a minimum a plaintiff must show that the official at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers."
Shehee, 199 F.3d at 300 (quoting Hays, 668
F.2d at 874); see also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
There is no evidence that Bright and Rogers had knowledge of the alleged
conditions and mistreatment. While Ortiz was in security control, Bright and
Rogers were not aware of any problems with heat, bedding, sanitation, or access
to medical treatment in ARN 4. Bright Hoffman Aff., P12; Rogers Aff., PP12-13.
Bright and Rogers received no notice, kite, or complaint that Ortiz lacked such
items. Bright Hoffman Aff., P12; Rogers Aff., PP12-14. Bright and Rogers did
not order that Ortiz be put in shackles, and they were unaware of a medical
order that ankle shackles should not be used on Ortiz. n6 Bright Hoffman Aff.,
P21; Rogers Aff., PP15.
When Bright did become aware that Ortiz needed medical attention, Bright
responded appropriately. ARN 4 personnel informed Bright that Ortiz claimed she
was sick. Bright Hoffman Aff., P19. Bright promptly had Ortiz transferred to
the infirmary. Id.
Darlene DeMarchi testified that she spoke once with Rogers. Rogers
telephoned DeMarchi at work and informed her that her daughter would be put in
protective custody and "be able to have her stuff." Jan. 18, 2001
Dep. of Darlene DeMarchi, 54:3-55:8; 88:8-89:16. DeMarchi also spoke with
Bright on one occasion. Id., 60:23-61:8. Bright called DeMarchi and told her
that she would not be able to see her daughter because she was in protective
custody. Id., 86:14-87:18. Although Bright and Rogers may have been slightly
incorrect in telling DeMarchi that Ortiz was in protective custody--as opposed
to security control--Bright and Rogers did not make any statements to DeMarchi
which contributed to Ortiz failing to receive medical care.
Accordingly, Bright and Rogers did not deny Ortiz proper medical care
while she was in security control.
C.
Defendant Voinovich
DeMarchi called the governor's office and spoke to one of his aides
about Ortiz. DeMarchi Dep., 52:20:53:1. DeMarchi did not recall his name. Id. DeMarchi did not testify as to the
content of her conversation with the governor's aide.
[*931] Plaintiff has submitted no evidence of personal involvement by
Governor Voinovich in the denial of medical treatment to Ortiz. See Searcy v. City of Dayton, 38 F.3d 282,
287 (6th Cir. 1994); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Further, Voinovich cannot be held liable under a theory of respondeat superior
for the actions of the ARN 4 personnel. See Hays v. Jefferson County, 668 F.2d
869, 874 (6th Cir. 1982); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999).
To
the extent the complaint alleges that Voinovich had a duty to launch an
investigation of Ortiz's situation, the Court disagrees. There is no evidence
Voinovich had knowledge of Ortiz's situation. There is no credible allegation
that the aide informed Voinovich of his phone call with DeMarchi.
V. Conclusion
For
the reasons set forth above, defendants' March 2, 2001 motion for summary judgment
(doc. 52) is GRANTED IN PART and DENIED IN PART.
3/29/02
Algenon L. Marbley
United States District Judge
FOOTNOTES:
n1 Defendant Corrections
Officer Douglas Schultz was dismissed from this lawsuit without prejudice for
failure to effect service pursuant to Fed. R. Civ. P. 4(m). See Sept. 18, 2000
Order (doc. 40).
n2 The dates contained in
the complaint are incorrect by seven days. Feb. 26, 1999 Dep. of Michelle
Ortiz, 97:25-98:4. The parties agree that the initial sexual assault occurred
on November 8, 1996.
n3 The letter is not dated.
Based on statements made near the end of the letter, it appears Ortiz wrote the
letter while she was still in segregation and just before she took the
polygraph test.
n4 Defendants have not
established that Ortiz had a roommate who would have deterred Schultz from
attempting an assault.
n5 There are other grounds for placement in security control, but
they are not relevant here.
n6 Indeed, the medical order
that Ortiz not be shackled around the ankles was not issued until April 2,
1997. Ortiz Dep., Ex. F.