KREIN v. NORRIS, (E.D.Ark. 2000)

HENRY L. JONES, JR., United States Magistrate Judge

This matter is before the Court on the summary judgment and supplemental summary judgment motions filed by defendants Norris, Guntharp, McQuilliams, Belken, Perry, Killian, Beatty, and Goggins (ADC defendants) (DE ##33, 67). Plaintiff has filed responses in opposition to the motions (DE ##39, 72).

Plaintiff is an inmate incarcerated at the North Central Unit of the Arkansas Department of Correction (ADC). He filed this action against defendants pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights as a result of injuries he suffered in an attack by another inmate at the Unit. In addition to the ADC defendants, plaintiff has also sued medical personnel in connection with his allegations concerning the treatment of the injuries he suffered. Plaintiff also alleges a pendent state law claim for denial of medical care by all defendants. Plaintiff seeks compensatory and punitive damages from the defendants.

According to the facts as alleged by plaintiff in his second amended complaint, and certain facts which are not disputed by the parties, plaintiff was housed in 1 Barracks of the North Central Unit on January 6, 1998. Shortly after midnight on that date, plaintiff was attacked by another inmate in his barracks, Michael Pruett. Defendant Morgan was made aware of plaintiff's injuries shortly thereafter, when he opened the door of the barracks for another inmate. At that time, defendant Morgan made arrangements for defendant Goggins to take plaintiff to the infirmary, where he was examined and treated by defendant Wood. Plaintiff claims in his amended complaint that at the time, he thought his jaw was broken, but that defendant Wood sent him back to his barracks without x-rays. Plaintiff returned to sick call in pain twice later that day, and asked to be x-rayed, but was denied treatment and was returned to his barracks. Finally, on January 7, 1998, plaintiff was examined by an oral surgeon, who ordered x-rays. Plaintiff was transported to a hospital on January 8, 1998, for x-rays, at which time it was determined that his chin and jaw were broken.

In support of their motion for summary judgment, the ADC defendants state that plaintiff has not presented evidence to support his claim against them for failure to protect him, because there was no actual knowledge by any defendants, or even the plaintiff, that he was in danger from inmate Pruett. Furthermore, defendants state that plaintiff is attempting to hold some of them liable because of their supervisory positions at the unit, and that respondeat superior liability is not available in a § 1983 claim. In addition, defendants state that plaintiff has presented no evidence to support a finding of deliberate indifference by them to his medical needs, since the guards immediately escorted plaintiff to the infirmary, and permitted him to revisit the infirmary on several occasions during the next few days. Finally, defendants state that they are protected from liability by qualified immunity, in that plaintiff has failed to allege that they violated a clearly-established constitutional right.

In support of his failure to protect allegations against the defendant, plaintiff asserts that defendants failed to abide by post orders and therefore, maintained inadequate staffing in the barracks at the time of the incident. In support of this contention, plaintiff presents his own affidavit, and that of several other inmates, who state that at the time of the incident, and on other occasions, one guard was posted to roam between three barracks, and that previous incidents of violence have occurred in these areas. Plaintiff also presents a report from a retained prison expert, E. Eugene Miller, who states that the post orders for the Unit required that each barracks be staffed by an officer, but that at the time of the incident, only one officer acted as a rover between three different barracks. Miller states that this violates penological practice and increased the risk of harm to inmates in an open-dormitory (barracks) setting.

Plaintiff also claims that inmate Pruett was improperly classified and housed in the same barracks as he, since he possessed an extensive disciplinary record for assaults and violence, and since he had been convicted on January 3, 1998 for destruction of property, and was sentenced to ten days in isolation. Plaintiff submits a copy of inmate Pruett's record from the ADC which confirms this fact.

Summary judgment is appropriate absent a dispute of material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A genuine issue of material fact exists if"a reasonable jury could return a verdict in favor of either party." White v. Farmer, 849 F.2d 322, 325 (8th Cir. 1988). Although the moving party has the burden of showing the absence of a genuine issue of material fact, the nonmoving party has the burden of producing "evidence that would support a jury verdict." Anderson v. Liberty Lobby, 477 U.S. 242, 247-8 (1986). In order to set forth a claim for failure to protect by the defendants, plaintiff must show that he was incarcerated "under conditions posing a substantial risk of serious harm," and that 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 upon that inference."Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996).

In this particular case, the Court finds that there is no dispute that both plaintiff and defendants were completely unaware that plaintiff was in danger of harm from inmate Pruett. Plaintiff did not have any difficulties with Pruett, and inmate Pruett evidently acknowledged after the incident that he struck plaintiff under a mistaken belief that plaintiff had "snitched" on him. In addition, the defendants present affidavits to support their claim that they were either not present at the time of the incident, or had no warning of any difficulty between these two inmates. However, plaintiff also alleges that the defendants' failure to abide by staffing requirements, a problem which had been noted and addressed in previous cases dealing with violence in the barracks setting, created an environment posing risk of harm to him. Plaintiff's claim of one guard for three barracks is also supported by affidavits. Although defendants state that several guards were on duty in the barracks areas during that evening, it is difficult for the Court to determine from the layout presented by the defendants the specific presence of certain guards at particular times and places. Plus, the post orders which have been presented to the Court by both parties do not appear to be applicable to this situation, since the date of approval of such orders is listed as 4/1/99, which is after the date of the incident in question. Thus, the Court is unsure concerning the details of the post orders applicable at the time of the incident. This dispute, coupled with plaintiff's claim that inmate Pruett was improperly classified and housed in the barracks with other general population inmates such as plaintiff, leaves a genuine issue of material fact concerning the adequacy of security at the time of the incident, and the knowledge and responsibility of the defendants if such security was lacking. Therefore, the Court finds that summary judgment is inappropriate with respect to this issue as to defendants Larry Norris (director of the ADC), G. David Guntharp (acting deputy director of the ADC), John Belken (assistant warden of the Unit), Larry May (warden of the Unit), and security officers Perry, Killian, Beatty and Goggins. However, with respect to defendant McQuilliams, the present warden of the Unit, the Court finds that plaintiff's allegations should be dismissed, because at the time of the incident in question, she was warden of the Delta Regional Unit. Plaintiff has alleged no facts which support a finding of any knowledge by this defendant, or any connection with staffing decisions at the North Central Unit at that time.

With respect to defendants' claim that they are protected from liability by qualified immunity, the Court disagrees at this point. Defendants claim that plaintiff fails to allege a proper constitutional violation., and that since defendants were unaware of danger posed by inmate Pruett, that their conduct did not violate any clearly established right. However, while the Court earlier acknowledged the fact that no one anticipated harm from that particular inmate directed toward plaintiff, a material dispute of fact exists concerning whether defendants should have been aware based on Pruett's violent history and recent disciplinary conviction, and whether certain court-mandated staffing numbers were disregarded. Therefore, in light of this dispute, the Court is unable to determine at this juncture that defendants' conduct did not violate plaintiff's clearly-established right to remain free from harm.

With respect to plaintiff's allegation of deliberate indifference against defendants, however, the Court finds that plaintiff has failed to set forth facts to support a finding of liability against defendants. In order to state an Eighth Amendment claim for relief, plaintiff must allege that defendants were deliberately indifferent to a serious medical need, that is, that the defendants knew of, and yet disregarded, an excessive risk of harm to the inmate's health and safety. Farmer v. Brennan, 114 S.Ct. 1970 (1994). In this particular case, plaintiff does not dispute that ADC defendants immediately escorted him to the infirmary for treatment. Nor does he claim that the ADC defendants refused to subsequently take him to the infirmary or the hospital for treatment. Rather, plaintiff alleges in his amended complaint that "the prison had a duty and an obligation to provide the Plaintiff with adequate medical care and treatment." However, the prison's medical care is contracted out to a private medical corporation, Correctional Medical Services, Inc., and there is no allegation or claim that the ADC defendants were involved in the medical treatment decisions made with respect to plaintiff. The courts have held that "a general responsibility for supervising the operations of a prison is insufficient to establish the personal involvement required to support liability." Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997). Through these medical allegations, plaintiff appears to attempt to hold the ADC defendants liable for the alleged inadequate treatment rendered by CMS or its medical employees. Therefore, the Court finds that defendants' motion should be granted with respect to plaintiff's medical claims against them. Accordingly,

IT IS, THEREFORE, ORDERED that the motion for summary judgment filed by defendant MCQuilliams is hereby GRANTED, and defendant McQuilliams is DISMISSED from plaintiff's complaint.

IT IS FURTHER ORDERED that the motion for summary judgment filed by the remaining ADC defendants is DENIED with respect to plaintiff's allegation of failure to protect, and GRANTED with respect to plaintiff's allegation of deliberate indifference to his medical needs.

IT IS SO ORDERED