Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T he Court will deny Defendants' request for oral argument because the parties' memoranda thoroughly discusses the law and evidence and the Court concludes that additional argument will not aid its decisional process. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999). Document 132 Filed 08/30/2005 Page 1 of 11
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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Cheryl Allred,

) ) Plaintiff, ) ) vs. ) ) ) Corrections Corporation of America, Inc.;) and Bruno Stolc, ) ) Defendants. ) ) )

No. CV-03-2343-PHX-DGC ORDER

Pending before the Court is Defendants' mot ion for summary judgment. Doc. #96. Plaintiff has filed a response and Defendants have filed a rep ly . D ocs . ##112, 126. For the reasons set forth below, the Court will grant the motion in part.1 Plaintiff commenced this action by filing a complaint against Defendants on November 26, 2003. Doc. #1. Plaintiff alleges that on November 28, 2001, male prisoners raped her while she was left unprotected in an unlocked cell in the receiving and delivery unit ("R&D") of the all-male Central Arizona Detention Center ("CADC") operated by

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Defendant Corrections Corporation of America ("CCA"). Id. ¶¶ 4-9. Plaintiff further alleges that Defendant Stolc, the warden in charge of CADC in 2001, was deliberately indifferent to a substantial risk that she would be sexually assaulted by male inmat es in R&D and breached his duty to protect her from such assaults. Id. ¶¶ 12-13. Specifically , P laint iff alleges that St olc failed to properly hire, train, and supervise CADC corrections officers and failed to implement adequate policies t o ens ure that Plaintiff was protected from male inmates. Id. ¶¶ 12-13. Plaintiff asserts an Eighth Amendment Biv ens claim and state law negligence and gross negligence claims against Defendant Stolc. Id. ¶¶ 11-15. Plaintiff

alleges that CCA is liable with respect t o t he s t at e law claims under the doctrine of respondeat superior. Id. ¶¶ 16, 18.2 I. S ummary Judgment S tandard. Summary judgment is appropriate if the admissible evidence, viewed in the light most favorable to the nonmoving party, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a mat t er of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). "[D]isputes over facts that might affect the outcome of the suit" will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Jesinger, 24 F.3d at 1130. To defeat summary judgment, the nonmoving party must present evidence from which a reasonable jury could return a verdict in favor of that party. Anderson, 477 U.S. at 248. II. Analysis. A. The Eighth Amendment Bivens Claim Against Defendant S tolc. 1. Exhaustion of Administrative Remedies. Id. ¶ 17. Plaintiff seeks compensatory and punitive damages.

Defendants argue that Defendant Stolc is ent it led to summary judgment on

The state law claims were also brought agains t an unknown admissions officer. Id. ¶ 11. Plaintiff voluntarily dismissed this defendant on M arch 19, 2004. Doc. #18.
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Plaintiff's Eight h Amendment Bivens claim because she failed to exhaust her administrative remedies before filing this act ion as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Doc. #96 at 9. Plaintiff argues that she was not required to exhaust administrative remedies because she filed this action after she was released from cus t ody and the PLRA's exhaustion requirement does not apply to former prisoners. Doc. #112 at 3-4 (citing Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2002)); see Doc. #113 Ex. G ¶ 4. Defendants do not address this argument in their reply. See Doc. #126 at 2. Plaintiff is correct. The PLRA provides, in pertinent part, that "[n]o action shall be brought with res p ect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). In Page, the Ninth Circuit held that " only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused, convict ed of, or sentenced for criminal offenses are `prisoners' within the definition of 42 U.S.C. § 1997e[.]" 201 F.3d at 1139 (emphasis added); see Huftile v. L.C. Miccio-Fons eca, 410 F.3d 1136, 1139 (9th Cir. 2005) (setting forth the PLRA's definition of "prisoner" and stating: "In Page, we held that the `natural reading' of

`prisoner' required that `t he individual in question must be currently detained as a result of accusation, conviction, or sentence for a criminal offense.'"); see also Thomas v. Baca, No. CV-04-008448 DDP, 2005 WL 697986, *2 (C.D. Cal. M ar. 23, 2005) ("In Page[,] . . . the Ninth Circuit joined other circuits in declining to apply the PLRA's exhaustion requirement to former prisoners.") (citations omitted). T he Court will not grant summary judgment on

the basis of Plaintiff's failure to exhaust administrative remedies. 2. The Merits of Plaintiff's Claim. a. The Eighth Amendment S tandard.

The Eighth Amendment requires prison officials to provide humane conditions of confinement, which include taking measures to guarantee inmates' safety. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). when two requirements are met. A prison official violates the Eighth Amendment "First, the deprivation alleged must be,

Id. at 834.
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objectively, `sufficiently serious.'" Id. (citation omitted). Second, the "prison official must have a `sufficiently culpable s t at e of mind.'" Id. "In prison-condition cases that state of mind is one of `deliberate indifference' to inmate . . . safety." Id. In describing the state of mind necessary for "deliberate indifference," the Supreme Court has held t hat a prison official must disregard "a risk of harm of which he is aware." Id. at 837. "[A] prison official cannot be found liable under the Eighth Amendment for

deny ing an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. b. Is There a Genuine Dispute as to Whether Plaintiff Was Raped?

Defendants do not dispute that rape of an inmate is sufficiently serious for an Eighth Amendment violation. Defendants do dispute, however, that Plaintiff was actually

raped. Doc. #96 at 3-5, 11, n.11; see Doc. #126 at 7-9. D efendant s contend that Plaintiff's tes t imony concerning the rape is not credible because her prior statements are

inconsistent. Id. D efendants further contend that it was nearly impossible for the rape to have occurred as alleged given the size and location of the cell in which P laintiff was detained. Id. In ruling on Defendants' motion, the Court must accept Plaintiff's evidence as true and draw all jus t ifiable inferences in her favor. Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of the Court. See Ander s on v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). Plaintiff has testified that CADC corrections officers left her unprotected in an unlocked cell in R&D and that male " p orter" inmates entered the cell and raped her. Doc. #113 ¶¶ 8-15. Plaint iff has presented testimony from the CADC chief of security, H arold Newton, and a CADC investigator, John M ills, that it was possible that P laint iff was left unprotected and male inmates had access to her in R&D.
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Id. ¶¶ 11-15, 52-53.

Plaintiff has also presented evidence that a male "porter" inmate Doc. #113 ¶¶

sexually assaulted an unprotected female inmate in R&D in December 1999.

21-23; see Docs #97 ¶¶ 57-62. Construing the evidence in Plaintiff's favor, the Court finds a genuine factual dispute as to whether Plaintiff was raped. c. Is Th e re a Genuine Dispute as to Whether Defendant S tolc Had Knowledge of a S ubstantial Risk of S erious Harm?

Defendants contend that Plaintiff has presented no evidence that any prison official, including Defendant Stolc, knew there was a substantial risk that Plaintiff would be raped by male inmates while detained in R&D. Doc. #96 at 11. M r. N ew t on has testified,

however, that common sense dictates that female inmat es face a substantial risk of being sexually assaulted if they are left unprotected in an all-male prison. Doc. #113 ¶ 20.

M r. Newton has further testified that due to this risk, female inmates should be complet ely segregated from the male populat ion and should never be left unprotected. Id. Defendant Stolc was aware of the sexual assault that occurred in R&D in December 1999, less than tw o y ears before Plaintiff's alleged assault occurred, and that additional training was provided and new policies w ere implemented to prevent future assaults on female inmates. Doc. #97 ¶¶ 57-62 & Ex. 38 ¶¶ 17-22. M r. M ills stated in his report to the warden in charge of CADC in 1999, M ichael Samberg, that "closer supervision of female inmates in R&D is recommended and may prevent this type of incident from re-occurring." Doc. #97 Ex. 40. Plaintiff has t estified that the 1999 assault took place in the same cell in which she was allegedly as s ault ed. Doc. #113 ¶ 23. Construing the evidence in Plaintiff's favor, the Court finds a genuine factual dispute as to whether Defendant Stolc knew there was a substantial risk that Plaintiff would be sexually assaulted by male inmates while detained in R&D. See Anderson, 477 U .S. at 255; Braxton-Secret v. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985) (stating that summary judgment is generally not appropriate if a party's knowledge or state

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of mind is at issue because the resolution of such issues is a jury function).3 d. Is There a Genuine Dispute as to Whether Defe n dan t S tolc Was D eliberately Indifferent to the S ubstantial Risk of S erious Harm?

Defendants argue that there is no genuine dispute as to whether Defendant Stolc dis regarded a substantial risk of serious harm to Plaintiff either by failing to properly hire, train, and supervise corrections officers or by failing to have adequate policies in place to protect Plaintiff's safety. Doc. #96 at 12-14. Defendants have p res ent ed testimony from eight witnesses in support of their argument. Doc. #97 ¶¶ 54, 63-68, 75-76. M r. Samberg has testified that when he was t he CADC warden all corrections officers were trained to keep male and female inmates segregated. Id. ¶ 63. M r. Samberg has further testified that

in response to the 1999 assault he (1) directed that all CADC corrections officers, and particularly the officers working in R&D, receive additional training regarding the proper supervision of female inmates and the CAD C policy requiring cell doors to be secured at all times, and (2) implemented a new policy requiring male "porter" inmates to be directly supervised by corrections officers. Id. ¶¶ 63-67, Ex. 37. Defendant Stolc has testified that corrections officers have continued to receive training regarding the proper supervision of female inmates and male "porter" inmates in R&D and that the policies implemented by former Warden Samberg remain in effect. Id. Ex. 38 ¶¶ 9, 16, 21-23. The testimony of

M r. Newton and five corrections officers corroborates the testimony of M r. Samberg and D efendant Stolc. Id. Exs. 5 (Quiroz Dep. at 22), 8 (Newton Dep. at 17, 21), 9 (Garcia Dep . at 37), 12 (Padilla Dep. at 24, 39-41, 42), 16 (Handrahan Dep. at 27), 23 (Cartwright Dep. at

Defendants dispute that the 1999 assault and Plaintiff's alleged as s ault occurred in the same cell. D ocs. ##96 at 7-8, 97 ¶ 59. As explained above, however, the Court must construe the evidence in Plaintiff's favor. Defendants further attempt to distinguish the 1999 assault on the grounds that it did not result in sexual intercourse and a nurse, rather than a corrections officer, left the cell door unlocked. Docs. ##96 at 8-11, 97 ¶¶ 57-61, 126 at 4. Defendants may choose to argue at trial that these factual differences prevented Defendant Stolc from acquiring the requisite knowledge, but such factual matters are for the jury to consider and cannot support summary judgment.
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7-8). The only evidence Plaintiff presents to rebut D efendants' evidence is the following deposition testimony by M r. M ills: Q. A. Your testimony is that male and female inmates at CADC are treat ed equally? Yes. There are no different policies and p rocedures in effect for females as opposed to males? To my knowledge, no. Plaintiff contends that M r. M ills in t his testimony has

6 Q. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

Doc. #113 Ex. H at 75-76.

"unequivocally rejected" Defendant Stolc's testimony regarding the training received by corrections officers and the policies in effect when Plaintiff's alleged rape occurred. #112 at 6-7. Plaintiff also notes that Defendants have presented no written policies. Id. The Court concludes that M r. M ills' testimony that male and female inmates are treated equally and that he is unaware of different p olicies for male and female inmates is not sufficiently probative to create a genuine issue of fact for trial. M r. M ills was not Doc.

responding to a ques t ion about housing of female inmates or segregation of the sexes. He testified that inmates are t reat ed equally, not that segregation procedures are lacking and not in contradiction to the eight other witnesses who testified about procedures at CADC. The ambiguit y of his single response is confirmed by his own testimony that policies at CADC require female inmates to be escorted, one by one, when they are moved about the prison. Doc. #126 at 5-6, Ex. 1 (M ills Dep. at 75). The Court concludes that a single,

ambiguous response about equality of the sexes is not sufficient to create a genuine issue of fact concerning the procedures testified to by eight witnesses in this case. Nor does the absence of a written policy create a question of fact as to whether Defendant Stolc provided training and had policies in p lace to protect female inmates. Defendant Stolc and the other witnesses did not testify that the policies were written. "A party opposing summary judgment must offer more than a mere s cintilla of evidence; indeed, `summary judgment may be granted if the evidence is merely colorable
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or is not s ignificantly probative.'" Binder v. Gillespie, 184 F.3d 1059, 1067 (9th Cir. 1999) (quoting Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997)) (internal alterations omitted); see Fed. R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party . . . must set fort h s p ecific facts showing t hat t here is a genuine issue for trial."). Plaintiff has failed to present St olc

s p ecific facts from which a reasonable jury could conclude that Defendant

purposefully failed to act to protect her from harm. See Farmer v . Br ennan, 511 U.S. 825, 835 (1994) ("[D]eliberate indifference entails something more than mere negligence[.]"); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) ("[T]here are certain minimum requirements before deliberate indifference can be established. [T]here mus t be a

purposeful act or failure to act on the part of the defendant."); cf. Williams v. Field, 416 F.2d 483, 485 (9t h Cir. 1969) (affirming the dismissal of a prisoner's Eighth Amendment claim because prison officials did not act in bad faith in failing to protect the prisoner from an assault by another prisoner). The Court accordingly will grant the motion for s ummary judgment with respect to Plaintiff's Eighth Amendment Bivens claim against Defendant Stolc and her corresponding request for punitive damages. See Bahrampour v. Lampert, 356 F .3d 969, 974 (9th Cir. 2004) (affirming summary judgment in favor of prison officials where the plaintiff presented ins ufficient evidence to create a genuine dispute as to whether his constitutional right s were violated by t he prison officials' conduct); see also Burrell v. Hampshire County, 307 F.3d 1, 8-10 (1st Cir. 2002) (holding that p ris on officials acted reasonably and were not deliberately indifferent to a known risk that t he p laint iff would be assaulted by a prisoner with a know n his tory of assaulting other inmates despite being informed by the plaintiff that the as s ault might occur); Rangolan v. County of Nassau, 217 F.3d 77, 79 (2d Cir. 2000) (affirming summary judgment for the defendants on an Eighth Amendment claim where t he plaintiff was assaulted after he was mistakenly placed in a cell with a prisoner he had testified against). B. The Gross Negligence Claim.
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"[P]roving gross negligence is no easy task." Luchanski v. Congrove, 971 P.2d 636, ¶ 18 (Ariz. Ct. App. 1999). To prove gross negligence under Arizona law, Plaintiff "must show wanton misconduct that `is flagrant and evinces a lawless and destructive spirit.'" Badia v. City of Casa Grande, 988 P.2d 134, ¶ 27 (Ariz. Ct. App. 1999) (quoting Scott v . Scott, 252 P.2d 571, 575 (1953)); Walls v. Ariz. Dep't of Pub. Safety, 826 P.2d 1217, 1221-22 (Ariz. Ct. App. 1991) ("`Wanton negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain terms. It is " in t he air,' so to speak.") (quoting Scott, 252 P.2d at 575). Plaintiff has failed to produce evidence that Defendants engaged in flagrant As explained above, Defendants have

misconduct with a lawless and destructive spirit.

presented substantial evidence that they implemented procedures and t raining designed to protect Plaintiff and other female inmates from assault, and Plaintiff has p roduced no specific controvert ing evidence. The Court will grant the motion for summary judgment

with respect to P laint iff's gross negligence claim. See Badia, 988 P.2d ¶¶ 26-34 (affirming summary judgment for the defendants and holding that police officers were not grossly negligent in releas ing an arrestee into the custody of her boyfriend who murdered her shortly after her release); Walls, 826 P.2d at 1221-22 (affirming summary judgment in favor of the defendant s and stating that in order to present a gross negligence claim to a jury the evidence "must be more than slight and may not border on conjecture"). C. The Negligence Claim.

Defendants do not address Plaintiff's negligence claim. After setting forth the gross negligence standard and arguing that the evidence does not satisfy it, they simply assert that t he negligence claim fails for the same reason. Doc. #96 at 15-16. As one would

expect, however, the standards for proving gross negligence and ordinary negligence differ. See Walls , 826 P.2d at 1221 ("Gross negligence differs from ordinary negligence in quality[.]"); Luchanski, 971 P.2d ¶ 18 (comparing gross negligence to "aggravated

negligence"); Corrigan v. San Marcos Hotel Co., 182 F.2d 719, 721 (9th Cir. 1950) (stating that negligence under Arizona law is the failure to do what a reasonably prudent person ordinarily would have done under the same or similar circums t ances ).
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explain w hy Plaintiff's evidence fails to meet the standard required for simple negligence. Construing the evidence in Plaintiff's favor ­ that she was left unattended in a cell in an all-male facility ­ the Court cannot conclude that Defendant 's actions were reasonable as a matter of law. See Andrews v. Blake, 69 P.3d 7, ¶ 41 (Ariz. 2003) ("`[T]he quest ion of negligence is one of fact for a jury to decide,' particularly when . . . reasonable minds could differ on whether a party has breached his or her duty of exercising reasonable care.") (citations omitted). The Court will deny the motion for summary judgment with respect to the negligence claim.4 D. S tate Law Punitive Damages.

To recover punitive damages under Arizona law, Plaintiff must prove something more t han negligence. See Saucedo v. Sinaloa, 24 P.3d 1274, 1277 ¶ 10 (Ariz. Ct. Ap p . 2001). The "something more" is established by clear and convincing evidence that

Defendant Stolc "either (1) `intended t o injure [P]laintiff or (2) consciously pursued a course of conduct knowing that [he] created a substantial risk of significant harm to others.'" Gurule v. Ill. Mut. Life & Cas. Co., 734 P.2d 85, 87 (Ariz. 1987) (citation omitted); see Linthicum v . Nationwide Life Ins. Co., 723 P.2d 675, 681 (Ariz. 1986) ("the burden of proof for punitive damages is by clear and convincing evidence."). For the reasons set

forth above in the dis cus s ion of deliberate indifference ­ that is, Plaintiff's failure to rebut Defendants' evidence of t raining and policies designed to protect female inmates ­ the Court concludes that a jury could not reasonably find by clear and convincing evidence t hat Defendant Stolc intended to injure Plaintiff or consciously pursued a cours e of conduct knowing it created a risk that female inmates would be harmed by male inmates. The Court will grant the motion for summary judgment with respect to Plaintiff's claim for punitive damages under state law. IT IS ORDERED that Defendants' motion for s ummary judgment (Doc. #96) is

Defendant CCA does dispute that it may be found liable on the negligence claim under the doctrine of respondeat superior.
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granted in part and denied in part as set forth in this order. The Court will set a final pretrial conference by separate order. DATED this 30th day of August, 2005.

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