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Belanus v. Dutton

United States District Court, D. Montana, Helena Division

March 23, 2017

SHERIFF LEO DUTTON, et al., Defendants.


          Dana L. Christensen, Chief Judge.

         Defendants filed a motion for summary judgment seeking judgment on all claims in their favor. (Doc. 76.) Plaintiff Duane Belanus opposes the motion and has filed the following motions: Motion for Protective Order (Doc. 70); Motion for Sanctions (Doc. 81); Motions to Compel (Doc. 83, 100); Motions for Adverse Jury Instructions (Docs. 85, 87, 89); Motion for Contempt or to Comply Compliance (Doc. 101); and Motion for Declaratory Judgment (Doc. 114).

         Defendants' Motion for Summary Judgment (Doc. 76) will be granted as to Count VI (failure to train corporal), Count VII (failure to train corporal), Count VIII (failure to train corporal), Count XII (failure to investigate), and Count XIV (denial of medical care). Defendants Grimmis, Shanks, and Gilbertson will be dismissed. The motion for summary judgment will be denied as to all other claims and Defendants.

         Mr. Belanus's motions will be denied, except his motion to comply which will be granted in part and denied in part.


         A. Standard

         Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Under summary judgment practice, "[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A), (B).

         "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, "after adequate time for discovery and upon motion, against a party who 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." See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, A15 U.S. at 586 n.11. Moreover, "[a] plaintiffs verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence." Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). The opposing party must demonstrate that the fact in contention is material, i.e., a fact "that might affect the outcome of the suit under the governing law, " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T. W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 447 U.S. at 248.

         "In evaluating the evidence to determine whether there is a genuine issue of fact, " the court draws "all inferences supported by the evidence in favor of the non-moving party." Walls v. Cent. Costa Cnty. Transit Auth, 653 F.3d 963, 966 (9th Cir. 2011). But it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (citations omitted).

         Rule 56(d) of the Federal Rules of Civil Procedure provides:

         If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

         To prevail on a Rule 56(d) request, a party must make "(a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists." Emp'rs Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004) (citation omitted). "The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Id. at 1129-30 (citation omitted). A district court may "deny[ ] further discovery if the movant has failed diligently to pursue discovery in the past, or if the movant fails to show how the information sought would preclude summary judgment." Id. at 1130 (citation omitted).

         By notice provided July 22, 2016 (Doc. 79), Mr. Belanus was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         B. Facts[1]

         On August 3, 2008, Mr. Belanus was arrested and charged with kidnaping, rape, inflicting bodily injury during a rape, tampering with evidence of the rape, burglary, and theft. State v. Belanus, 357 Mont. 463, 240 P.3d 1021 (Mont. 2010). He was convicted of these charges on June 12, 2009. (Statement of Undisputed Facts ("SUF"), Doc. 78 at ¶ 4.) He was incarcerated at the Lewis and Clark County Detention Center ("LCDC") from August 3, 2008 until August 13, 2009. (Complaint, Doc. 1 at 9.)

         Upon entry into LCDC, Mr. Belanus was placed in Pod 6 with other inmates with similar charges. (Complaint, Doc. 1 at 9; Statement of Disputed Facts ("SDF"), Doc. 105 at 115.) Pod 6 is a general population unit at LCDC which has been used to segregate inmates although it is not designated as such. (SUF at ¶ 3.) Mr. Belanus was housed in Pod 6 from August 4, 2008 until September 30, 2008 when he was moved to the library floor because Pod 5 at the jail was over crowded. He was moved back to Pod 6 on October 7, 2008 but had to go back to the library on October 17, 2008 again due to overcrowding of the women's pod. He was returned to Pod 6 on October 21, 2008 but was moved to Pod 1 on November 24, 2008. He was returned to the library again on November 27, 2008 and returned to Pod 6 on November 29, 2008 where he remained until February 3, 2009 when he was moved to Pod 1 where he was housed until the incident at issue occurred on July 11, 2009. (Movement Sheet, Doc. 78-3.)

         On or about May 18, 2009, another inmate, Daniel Hartford, was attacked in Pod 6 because he was a sex offender. Two inmates were charged with assault as a result of this incident. (Doc. 105-15 at 1-14.)

         While Mr. Belanus was housed in Pod 1, Inmate Travis Demichelis was housed in Pod 2 and regularly harassed and threatened Mr. Belanus through the glass between pods. Inmate Demichelis would yell profanities and get others involved with his taunts and threats of injury. Mr. Belanus contends that rumors quickly spread around LCDC that he was in jail for a sex-crime.

         On the evening of July 11, 2009, Officer Becky Hawthorne arrived at Pod 1 to escort Mr. Belanus from Pod 1 to the nurses' station. (SUF at ¶ 5, SDF 5, Doc. 105 at 117.) During the medication pass, Mr. Belanus told Officer Hawthorne that "a girlfriend of someone in Pod 2 had called the jail and found out why he was here." (SUF at ¶ 37.) While at the nurses' station, Mr. Belanus told Officer Hawthorne, Officer Brian Merritt, and two other LCDC employees that the LCDC staff member who had been at his criminal trial had been talking with inmates in Pods 2, 3, and 4 for an extended period of time and after that Mr. Belanus started receiving threats from those pods.[2] Mr. Belanus told the officers he had been receiving threats of harm and death, other inmates shouted derogatory names at him and notes were being passed between pods about him. He also explained that Brian Olson and Nick England (other inmates in Pod 1 with Mr. Belanus) came into his cell and starting making comments about his alleged charges. He stated he was afraid to return to his pod because everyone had distanced themselves from him and Olson and England were acting noticeably different and hateful toward him. (SDF, Doc. 105 at 148-150.) In response to his concerns Officer Hawthorne told him "If something was going to happen, it would've happened by now. You're going back to the pod." (Doc. 105 at 86.)

         Mr. Belanus contends that while Officer Hawthorne was taking Mr. Belanus to and from the nurses' station, at least four inmates from Pod 2 were yelling, threatening, and laughing at Mr. Belanus. In addition, inmates from Pods 3 and 4 were hitting the windows and doors while yelling obscenities. (Doc. 105 at 125-126.) Officer Hawthorne admits that as she and Mr. Belanus were passing the door to Pod 2, Demichelis was standing by the Pod 2 door, yelling threats at Mr. Belanus. Officer Hawthorne responded by telling Demichelis to be quiet and move away from the door. (SUF at ¶ 11.) Officer Hawthorne was aware that the doors to Pod 1 and Pod 2 were both locked and Demichelis did not have physical access to Mr. Belanus. (SUF at ¶ 12.)

         On the way back to Pod 1, Officer Hawthorne told Mr. Belanus to remain in his cell if he feared for his safety and she would deal with the situation after medication pass. (SUF at¶ 10; SDF, Doc. 105 at 131 ¶ 17.) Officer Hawthorne contends she also told Mr. Belanus to lock himself in his cell. (SUF at ¶ 9.) Individual cell doors in LCDC pods lock automatically when closed. Once locked, they can only be opened by the control officer or by a detention officer with a key. Detainees can communicate with the control officer by way of an intercom located in the cell. (SUF at ¶ 14.) Detainees at LCDC are allowed to lock themselves in their own cells during hours when general lockdown is not in effect, and frequently do so. (SUF at ¶ 15.)

         Mr. Belanus claims he could not lockdown in his cell because he had been ordered to keep his cell door open so inmates housed on the floor could use the bathroom. (Doc. 105 at 89, 129.) Captain Grimmis confirms that while inmates generally have the freedom to lock their individual cell doors, there is an exception that, during lockdown, one cell door in the pod may need to be left open to allow inmates housed on the floor to use the toilet. (Grimmis Aff., Doc. 78-17 at2, ¶5.)

         Mr. Belanus did not lockdown in his cell when he returned from the nurses' station. Instead, he called his parents and his pastor from a phone in the common area of Pod 1 and then went to his cell but left the door unlocked. (SUF at ¶ 18.)

         At approximately 10:30 p.m., Inmates Olson and England went into Mr. Belanus's cell and assaulted him. (SUF at ¶ 19, Merritt Report Narrative, Doc. 78-8 at 1.) The assault eventually moved from Mr. Belanus's cell to the common area where it was observed by Officer Merritt, the control officer on duty that evening. (SUF at ¶ 20.) Mr. Belanus alleges the assault lasted until 10:36 when LCDC staff arrived to stop the assault.

         Officer Merritt alerted Officer Hawthorne about the fight and Officer Hawthorne and another LCDC employee responded to Pod 1 to intervene. The detention officers separated Inmate Olson and Mr. Belanus. Officer Hawthorne took Mr. Belanus to his cell while the other officers restrained Inmate Olson. (SUF at ¶ 22.) Adam Shanks and another police officer arrived to assist. They left once the fight was broken up. (SUF at ¶ 23.)

         According to a LCDC report narrative (Doc. 78-8 at 1), the assault occurred at 10:34 p.m.. EMTs arrived at 10:44 p.m. At 10:50 p.m., Mr. Belanus was escorted from Pod 1 to booking and housed in the PC cell and evaluated by paramedics. The EMTs determined Mr. Belanus's injuries were not life threatening and did not require them to transport him to the hospital. (SUF ¶ 24; SDF ¶ 24, Doc. 105 at 135-136.) The EMTs left LCDC at 11:02 p.m. but returned to LCDC at 12:54 a.m. to reevaluate Mr. Belanus. They determined from their second quick assessment that Mr. Belanus's injuries were not life threatening and did not require them to transport Mr. Belanus to the hospital. The ambulance left LCDC at 1:03 a.m. Due to Mr. Belanus's continued complaints of severe pain, Deputy Vance Lavender transported Mr. Belanus to the hospital. (Merritt Report, Doc. 78-8; SDF, Doc. 105 at 136-137.)

         St. Peter's Hospital staff diagnosed Mr. Belanus with a "mild kidney contusion" and a "laceration of his lower lip, 2 cm in total length repaired with a single layer of Vicryl sutures." (Emergency Room Note, Doc. 78-10 at 2.) Mr. Belanus returned to LCDC at 5:44 a.m. (Merritt Report, Doc. 78-8 at 2.)

         Although Inmates Olson, England, and Demichelis were held jointly and severely liable for Mr. Belanus's medical costs resulting from the assault (SUF at ¶ 28), Mr. Belanus has received collection notices for the medical costs resulting from the assault (Doc. 105 at 139, ¶ 29). As part of his criminal conviction, Mr. Belanus was ordered to pay $4, 070.72 restitution for the medical costs he incurred while he was incarcerated that were not the result of the actions of other inmates. (Doc. 78-5 at 4.)

         C. Allegations

         The remaining Defendants in this action are Sheriff Leo Dutton, Lewis & Clark County, Captain Jason Grimmis, D.O. Becky Hawthorne, D.O. Brian Merritt, Sgt. Laurel Bulson, Sgt. Clair Swain, Sgt. Scott Ferguson, Sgt. Timothy West, Sgt. Eric Gilbertson, and Officer Adam Shanks.

         Liberally construed, Mr. Belanus alleges Defendants Dutton, West, Swain, Bulson, Ferguson, and Lewis and Clark County failed to protect him from other inmates when they placed him in a general population cell as a result of overcrowding at LCDC. (Amd. Cmplt, Doc. 5, Counts I, II, IV.)

         He also claims Defendants Dutton, West, Bulson, Ferguson, and Swain failed to train and/or supervise the unnamed corporal who allegedly disclosed the details of Mr. Belanus's criminal trial to other inmates. (Amd. Cmplt, Doc. 5, Counts VI, VII, VIII, Doc. 5 at 12-14.)

         Mr. Belanus alleges Defendants Hawthorne, Shanks, Gilbertson, and Merritt failed to protect him on July 11, 2009 when they put him back on Pod 1 despite him telling them he believed he would be assaulted. (Amd. Cmplt., Count IX, Doc. 5 at 15.) He alleges Defendants Ferguson, Bulson, Swain, West, and Dutton failed to train and supervise these Defendants and failed to implement procedures to avoid the assault. (Amd. Cmplt., Counts X, XI, Doc. 5 at 16-17.)

         Mr. Belanus also claims that Defendant Grimmis minimized his injuries and failed to record "oral confessions." (Amd. Cmplt., Count XII, Doc. 5 at 18.)

         In his last claim, Mr. Belanus alleges Lewis and Clark County was deliberately indifferent to his serious medical needs because they have a practice of ignoring medical needs for several hours to keep medical costs down. (Amd. Cmplt., Count XIV, Doc. 5 at 20.)

         The City of Helena and the State of Montana were dismissed from this action on January 12, 2015. (Doc. 4.) As such, Counts III, XV, XVIII and XIX which were only brought against these Defendants will not be addressed. Similarly, the Court will not address claims raised against unnamed defendants. Those individuals have never been identified, they have not been served, and they are not parties to this action. These include Counts V, XIII and XVI.

         D. Analysis

         Mr. Belanus, at the time of the assault, had been convicted but had not yet been sentenced. In Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000), the Ninth Circuit held that a convicted but unsentenced prisoner should be treated as a sentenced inmate and not a pretrial detainee. Accordingly, Mr. Belanus's allegations are properly considered under the Eighth Amendment standard, rather than the Fourteenth Amendment, which applies to pretrial detainees. See Bell v. Wolfish, 441 U.S. 520 (1979).

         The Court will first address the individual liability claims, then the supervisory liability claims, and finally the municipal liability claims brought against Lewis and Clark County.

         1. Individual Liability

         a. Failure to Protect

         Prison officials have a duty under the Eighth Amendment to protect prisoners from violence at the hands of other prisoners because being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (quotation marks omitted); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005).

         The failure of a prison official to protect inmates from attacks by other inmates or from dangerous conditions at the prison violates the Eighth Amendment only when two requirements are met: (1) the objective component-the deprivation alleged must be sufficiently serious, and (2) the subjective component-the prison official must possess a sufficiently culpable state of mind. Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991). For a failure to protect claim, the"sufficiently serious" requirement is satisfied by showing the existence of "conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 33-34 (1993). "The objective question of whether a prison officer's actions have exposed an inmate to a substantial risk of serious harm is a question of fact, and as such must be decided by a jury if there is any room for doubt." Lemire v. California Dep 't o/Corr. & Rehab., 726 F.3d 1062, 1075-76 (9th Cir. 2013) (citation omitted).

         To meet the subjective component, a prisoner must establish that prison officials were "deliberately indifferent" to serious threats to the inmate's safety. See Farmer, 511 U.S. at 834. A prison official can be held liable under the Eighth Amendment for failing to guarantee the safety of a prisoner if they know of and disregard an excessive risk to an inmate's health or safety. See Farmer, 511 U.S. at 837. 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. See Id. Deliberate indifference describes a state of mind more blameworthy than negligence. See Farmer, 511 U.S. at 835 (citing Estelle, 429 U.S. at 104). Neither negligence nor gross negligence will constitute deliberate indifference. See Farmer, 511 U.S. at 835-36 & n. 4; see also Estelle, 429 U.S. at 106 (establishing that deliberate indifference requires more than negligence).

         Deliberate indifference can be established by demonstrating that a defendant disregarded evidence of a specific threat to the plaintiff or if the plaintiff was assaulted as a result of prison conditions or practices that are dangerous to all prisoners or to any identifiable groups of prisoners. As set forth in Farmer,

The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.

Framer, 511 U.S. at 843. To prove knowledge of the risk, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842.

         In light of the information which Mr. Belanus claims he provided to Officers Merritt and Hawthorne, there is a genuine issue of material fact whether they were deliberately indifferent to Mr. Belanus's safety. Assuming the facts in the light most favorable to Mr. Belanus, he told Officers Hawthorne and Merritt that the LCDC staff member who had been at his criminal trial had been talking with inmates in other pods and after that he started receiving threats from those pods, that he had received threats of harm and death, that inmates shouted derogatory names at him, and that inmates were passing notes about him. He told them that Inmates in his housing Pod, Olson and England, came into his cell that day and starting making comments about his charges. Lastly, he explained to them how afraid he was to return to his pod because everyone had distanced themselves from him and his future attackers were acting noticeably different and hateful toward him. (SDF, Doc. 105 at 148-150.)

         Although Officer Hawthorne testified she told Mr. Belanus to lock down, Mr. Belanus disputes this statement. He contends Officer Hawthorne only told him to remain in his cell but he could not lock down because he was required to keep his cell door open to allow inmates housed on the floor to use the bathroom. He raised this allegation in his Amended Complaint (Doc. 5 at 26) and it was not disputed by Defendants. Thus, there is an issue of fact regarding whether Mr. Belanus was told to lockdown and whether he was allowed to lock down in light of the alleged requirement that he keep his cell door open. Defendants argue that "any reasonable person in Belanus's position - and in Defendant Hawthorne's position - would have interpreted [Hawthorne's] comments as instructions to Belanus to lock himself in his cell until Defendant Hawthorne could assess the threat against him." (Doc. 112 at 3.) But this is an issue of fact that must be decided by a jury.

         Defendants argue that the fact that Officer Hawthorne said "If something was going to happen, it would've happened already" demonstrates that Officer Hawthorne did not appreciate the risk. But again, given the information that Mr. Belanus says he conveyed to the officers, putting Mr. Belanus back on the pod assuming he could not lock himself in his cell for protection raises a question of fact whether Officers Hawthorne and Merritt were deliberately indifferent.

         Construing the facts in the light most favorable to Mr. Belanus, there is a genuine issue of material fact regarding whether Defendants Hawthorne and Merritt were aware of a specific threat to Mr. Belanus's safety and whether they took sufficient precautions to protect him. The Court rejects Defendants' contention that they are protected by qualified immunity. The doctrine of qualified immunity protects government officials "from liability for civil damages insofar 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, 818 (1982). It was clearly established in July 2009 that a prison official's failure to respond to known, credible threats to an inmate's safety constitute a violation of the inmate's Eighth Amendment rights. See Farmer, 511 U.S. 825; Chandler v. Williams, 2013 WL 2489139 (D.Or 2013); Rodriguez v. Sect'y for Dep't of Corr., 508 F.3d 611, 617 nl2 (11th Cir. 2007) (gang-related threats explicitly reported to prison officials presented a substantial enough risk of harm to trigger an Eighth Amendment duty to act); Odom v. S. Carolina Dep't of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (inmate-on-inmate assault resulting in significant physical injury, preceded by reported death threats, was sufficiently substantial for Eighth Amendment purposes); Miller v. Kastelic, 601 Fed.Appx. 660 (10th Cir. 2015); Schofield v. Hopkins, 491 Fed.Appx. 772, 774 (8th Cir. 2012) (finding that inmate sufficiently stated a failure to protect claim against officer who managed the laundry department because other inmate's threat to harm the plaintiff had been reported to the officer); Young v. Selk, 508 F.3d 868, 870-73 (8th Cir. 2007) (discussing potential for substantial risk where inmate told officials of cellmate's threats, requested to be removed from cell immediately, said it was an emergency, and was subsequently attacked).

         Mr. Belanus has not however, presented sufficient evidence that Defendants Shanks or Gilbertson violated his Eighth Amendment rights. Adam Shanks is a Police Officer with the Helena Police Department. He is not an employee of Lewis and Clark County and has no supervisory or policy making authority. He responded when he was notified of the assault but was only on the scene for ten minutes following the incident. He did not speak to any inmates about the ...

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