Castillo v. Bobelu, CIV–12–0448–HE.

• Citation: 1 F.Supp.3d 1190
• Decision Date: 27 February 2014
• Docket Number: No. CIV–12–0448–HE.,CIV–12–0448–HE.
• Parties: Crystal CASTILLO, et al., Plaintiffs, v. Anthony BOBELU aka Tony Bobelu, in his individual capacity, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

1 F.Supp.3d 1190

Crystal CASTILLO, et al., Plaintiffs,

v.Anthony BOBELU aka Tony Bobelu, in his individual capacity, et al., Defendants.

No. CIV–12–0448–HE.

United States District Court,

W.D. Oklahoma.

Feb. 27, 2014.

David M. Garrett, Sr., Garrett Law Office PC, Tulsa, OK, Derek S. Franseen, Douglas J. Fraley, Micky Walsh, Beeler Walsh & Walsh PLLC, Oklahoma City, OK, for Plaintiffs.

James Smith, Bellefonte, PA, pro se.

John Doe, pro se.

Stephen M. Pike, Huddleston Pike Henderson Cusack & Parker, David W. Lee, Emily B. Fagan, Oklahoma City, OK, for Defendants.

ORDER

JOE HEATON, District Judge.

Plaintiffs Crystal Castillo, Lisa Garell, Angela Gaytan, Dana Reeder, and Nancy Robinson filed this action against Anthony Bobelu aka Tony Bobelu, Russell Humphries, Bud Dolan, Ruby Jones–Cooper, John Larsen, Charlotte Day, and Mary Pavliska, in their individual capacities, asserting claims under 42 U.S.C. § 1983 for violations of their Eighth Amendment rights.¹ Plaintiff allege that, while they were inmates at the Hillside Community Corrections Center “(Hillside”) in Oklahoma City, they were “subjected to sexual abuse while participating in a required inmate job assignment at the Oklahoma Governor's Mansion arranged” by Hillside. Amended Complaint, ¶ 2. All defendants but Bobelu have moved for summary judgment, which is appropriate only “if the movant 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). “A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir.2013) (internal quotations omitted). Having considered the submissions of the parties in light of this standard, the court concludes the motions of defendants Jones–Cooper, Dolan, Larsen and Humphries should be granted, the motion of defendant Day should be denied, and the motion of defendant Pavliska should be granted in part and denied in part

Background

The background facts are substantially undisputed and, to the extent disputes exist, the court views the evidence in the light most favorable to plaintiffs. From February 2008 to August 2009, plaintiffs were inmates at Hillside and in the custody of the Oklahoma Department of Corrections (“DOC”). Hillside participated in a work program, the Prisoner Public Works Program (“PPWP”), that allowed offenders to work off-site at different state offices. Plaintiffs worked during the day doing grounds maintenance at the Oklahoma Governor's Mansion, where they were supervised by the groundskeeper, Anthony Bobelu, and by Bobelu's immediate supervisor, Bud Dolan. Both Bobelu and Dolan were employees of the Oklahoma Department of Central Services (“DCS”). Dolan was the State Capitol Park Administrator. Defendants Ruby Jones–Cooper, John Larsen, Charlotte Day, and Mary Pavliska were DOC employees who worked at Hillside. Jones–Cooper was Hillside's district supervisor, Larsen was a supervising case manager and Day and Pavliska were guards or corrections security officers. Plaintiffs claim that Bobelu and Russell Humphries, another DCS employee who was a cook at the Governor's Mansion, sexually harassed and sexually assaulted them.

When Hillside inmates work at places such as the Governor's Mansion, the DOC does not have a guard stay with the women at the work site. Instead, they are supervised by state workers employed at the work site, who function like guards. These individuals go through an eight hour training program. Defendant Jones–Cooper testified that, like the correctional facility's officers or guards, the “supervisors are taken through training, through policies and given instructions on supervising the women.” Doc. # 101–15, pp. 8–9. At least when conducted by Larsen, the training usually consisted of the supervisor's review of a CD titled Working Successfully with Female Offenders and a DOC document titled Sexual Misconduct with Offenders. Larsen would send those materials to the supervisor and then require written acknowledgment that he or she had reviewed and understood the CD and the policy. See Doc. # 101–12. In contrast to the training received by the off-site supervisors, facility guards were given eight weeks of training initially and then yearly re-education.

Jones–Cooper acknowledged that there was the potential for “over familiarity” and “[i]nappropriate contact” if female inmates worked on a job site with only male employees. Doc. # 101–15, pp. 10, 11. She indicates she was not aware until after Bobelu and Humphries' alleged misconduct was exposed that there were no females working on the grounds crew at the Governor's Mansion other than the female inmates. She stated that if she had been aware of that she thought she would have discussed alternatives such as the transfer of another female employee to that area, placement of the inmates elsewhere or their removal.

Offenders at Hillside were instructed that they should report any wrongdoing and DOC employees were to report sexual harassment or misconduct up the chain of command. It is unclear whether Hillside inmates could report sexual harassment or assaults anonymously. See Doc. # 101–15, pp. 12–13.

Bobelu was hired by DCS in November 2006. Plaintiffs concede that there were no “warning signs” at that time. Doc. # 96, p. 8, ¶ 23. Not long after he started working, Dolan sent him to DOC's main office “to review the sexual misconduct with offenders and working successfully with female offenders course.” ² Doc. # 85–30, p. 4. DOC was responsible for training Bobelu with respect to his working with inmates.

Defendants contend that no one at either DCS or the DOC was aware of Bobelu and Humphries' alleged misconduct until Friday, May 29, 2009, when plaintiff Gaytan called Dolan requesting a letter of recommendation for employment. Plaintiffs contest the alleged lack of knowledge, at least with respect to Bobelu's conduct, citing Dolan's statement that “[t]hat was the first incident involving [Bobelu and] an inmate.” Doc. # 101–4, p. 4.³

The evidence offered shows that Dolan had been aware, before May 29, 2009, of another episode of questionable behavior involving Bobelu. Dolan told a DOC investigator that, shortly after Bobelu was hired, in May 29, 2007, there had been an “incident involving a student laborer.” Id. The individual, Samantha Smedley, was a temporary employee who, on her second day of work was thirty minutes late and then also took a long lunch and left work early. When Dolan verbally reprimanded her, she told him that Bobelu had made comments about her sexuality—“[s]omething to the effect that she was—I recall it was like a baseball term, like, oh, you're a switch-hitter, or something like that, having to do with her liking same-sex type of thing.” Id. at pp. 5–6. She also told Dolan that she did not appreciate Bobelu adjusting the backpack blower when it was on her back. However, Dolan stated in his affidavit that she did not tell him that Bobelu had “touched her in a sexual way or that he groped her or anything along those lines.” Doc. # 85–30, p. 5.

Because he had never heard any similar complaints about Bobelu from any other temporary worker or inmate, Dolan testified that he was skeptical and thought Ms. Smedley might be trying to blame Bobelu for her performance issues or divert attention away from them. Dolan said he told Bobelu to stay away from her and he then investigated the allegations. He stated he spoke with several inmates, all of whom said they had never had an experience like that with Bobelu. He also spoke with the inmate who was in the room when Bobelu allegedly made the remark. She told him she did not hear any inappropriate comment.

Dolan said that when he confronted Bobelu with Smedley's allegations, he denied them. As Dolan had had other problems with Smedley's job performance and also had caught her in a lie, he did not believe what she told him about Bobelu. After Dolan told his supervisor that Smedley was not working out, she was reassigned.

Bobelu performed well during 2008, his second year, and Dolan did not receive any complaints about his behavior. However, Dolan testified he did discipline Bobelu by giving him verbal warnings for “having the one-on-one situations with ... two particular inmates,” Doc. # 101–4, p. 8, Callie Johnson, a former Hillside inmate who worked at the Governor's Mansion until July 2008, and Lisa Garell. Dolan testified that he “had to tell [Bobelu] on numerous occasions like no one-on-one contact, those kind of things.” Doc. # 105–5, p. 5. ⁴ He indicates he counseled Bobelu about the need to have a third party present, telling him that he could not “ride around in the truck with just one inmate” or “ride around on the golf cart with just one inmate.” Doc. # 101–4, p. 9. He also warned Bobelu about assigning certain inmates to be supervisors or “in charge of people.” Id. at p. 8.

At some point Dolan posted the no one-on-one rule as one of the DCS's Rules for PPWP, though that may not have occurred until May 21, 2009.⁵ The DOC policy prohibiting Sexual Misconduct with Offenders also was posted on a bulletin board. Doc. # 85–30, p. 47.

At one point Dolan had Ms. Johnson reassigned so she no longer worked at the Mansion, but changed his mind when Ms. Johnson asked for her job back and said she “would not do that anymore. In other words hanging out in Tony's office and that kind of thing.” Doc. # 101–4, p. 7.⁶ Dolan did not counsel her when she returned that she was not to have one-on-one contact with Bobelu and also did not explain to Bobelu that Ms. Johnson's return was conditioned on their following the rules. He did not discuss with either of them why she had been reassigned. After Ms. Johnson returned, Dolan testified that “pretty...