Howard v. Waide

• Citation: 534 F.3d 1227
• Decision Date: 23 July 2008
• Docket Number: No. 07-1169.,07-1169.
• Parties: Scott L. HOWARD, Plaintiff-Appellant, v. Lloyd WAIDE, Major; Mary Cox-Bergman, Major; Michael Negley, Captain; John R. Clarkson, Captain; NFN Halligan, Lieutenant; David A. Backer, Lieutenant; Anthony A. DeCesaro, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

534 F.3d 1227

Scott L. HOWARD, Plaintiff-Appellant, v. Lloyd WAIDE, Major; Mary Cox-Bergman, Major; Michael Negley, Captain; John R. Clarkson, Captain; NFN Halligan, Lieutenant; David A. Backer, Lieutenant; Anthony A. DeCesaro, Defendants-Appellees.

No. 07-1169.

United States Court of Appeals, Tenth Circuit.

July 23, 2008.

Jo Frances Walsh, Boulder, Colorado, (Alfred T. McDonnell, Hutchinson Black and Cook, LLC, Boulder, Colorado with her on the briefs), for Plaintiff-Appellant.

William V. Allen, Assistant Attorney General, Civil Litigation and Employment Law Section, Denver, Colorado (John W. Suthers, Attorney General, with him on the brief), for Defendants-Appellees.

Anthony A. DeCesaro, Defendant-Appellee, pro se, Colorado Springs, Colorado.

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Scott L. Howard appeals the district court's dismissal of his 42 U.S.C. § 1983 civil rights action against several Colorado Department of Corrections ("CDOC") employees.¹ Howard alleges that defendants knew that he had been sexually assaulted by members of a prison gang, but despite this they failed to protect him from future harm by the gang. Although he reported his fears to prison officers and filed three administrative grievances, Howard later fell victim to two more sexual assaults facilitated by members of the same prison gang. He then brought this suit in federal district court alleging that defendants' deliberate indifference violated his Eighth Amendment rights.

A magistrate judge recommended that summary judgment be partially denied. The district court, however, granted summary judgment in full to defendants Captain John Clarkson, Lieutenant David Backer, and Lieutenant Halligan, officers at the Sterling Correctional Facility ("Sterling"), as well as others not party to this appeal. It also dismissed Howard's claims against Anthony DeCesaro, a grievance officer at a central CDOC office, pursuant to Federal Rule of Civil Procedure 12(b)(6).

We affirm the district court's grant of DeCesaro's motion to dismiss. As to Backer, Clarkson, and Halligan (the "Sterling defendants"), we hold that Howard proffered adequate evidence to create a genuine issue of material fact regarding their subjective knowledge of a significant risk of substantial harm. Reviewing appellees' alternate argument that Howard failed to exhaust his administrative remedies, we conclude that he has exhausted some, but not all, of his claims. We therefore reverse the district court's grant of summary judgment to Backer, Clarkson, and Halligan on Howard's exhausted claims.

I

A

Howard was convicted on a number of theft charges in Colorado and several other states. He was also convicted of tax code violations in federal court. According to Howard, his crimes were based on financial fraud involving substantial amounts of money, and these crimes garnered both local and national media attention. Howard describes himself as "a non-violent offender who is openly homosexual, of slight build, [and] unusually vulnerable to predators" and states that he "has no history of institutional behavior problems."² Howard began serving his Colorado prison sentence in October 2004 at the Fremont Correctional Facility ("Fremont"). In December, members of a prison gang known as the "2-11 Crew" recognized Howard from media reports about his crimes. They approached Howard and asked him to commit similar financial crimes for their benefit. Howard does not identify any of these gang members by their given names, but alleges that an individual known as "Ghost" was largely responsible for his problems.

Howard alleges that the gang members at Fremont eventually learned that he was gay and began extorting money from him with threats of violence. Ghost soon made good on these threats, physically assaulting Howard on one occasion and eventually forcing Howard into prostitution when he became unable to pay. While at Fremont, Howard was sexually assaulted on three different occasions by two different inmates. Two of the assaults were ordered by Ghost as payment for Howard's "debts" to the gang, and one of these occurred after Ghost threatened Howard with a knife. Howard states that he unsuccessfully asked his Fremont case manager for protection from the gang but, fearing retaliation, did not tell him about the attacks that had already occurred.

After the third assault occurred, Howard contacted an attorney friend and told her that 2-11 gang members had approached him in Fremont. Howard did not tell the attorney about the sexual assaults because he feared retaliation. The attorney wrote a letter to Fremont prison officials asking that Howard be transferred to another facility and mentioning the gang by name. After prison officials received the letter and asked Howard for an explanation, however, Howard "broke down in tears" and told a case manager that he "had been assaulted." The case manager responded: "I don't want to hear the details of this."

Several days after his conversation with the case manager, Howard was transferred to Sterling for his protection. Upon arriving at Sterling on March 1, 2005, Howard met with an intake unit case manager. Howard told her that he had been transferred from Fremont because of sexual and physical assaults perpetrated by members of the 2-11 Crew. She cautioned Howard that "2-11 are everywhere and they have a grapevine." Clinical notes from Howard's medical intake also state that the "circumstances of [Howard's] transfer appear to have to do with custody issues with an STG [security threat group]," and note that he "talked briefly about his underlying anxiety regarding the circumstances of his transfer."

Based on our reading of the record, the Sterling facility is split into at least two separate parts: Sterling East and Sterling West. These parts are further subdivided into five "living divisions," which are "separated by security walls, secure sliders, and controlled hubs." Each division, in turn, is subdivided into "living units." Sterling West includes Living Units 1 through 4, which constitute two living divisions and are among the higher-security housing units. Howard's first permanent living assignment at Sterling was in Unit 2. There, he met with his permanent case manager and again "explained his ordeal with 2-11 Crew members" at Fremont. Although Howard told this official that 2-11 gang members had been a "serious problem for him in the past," necessitating his transfer to Sterling, he was "afraid to provide names or specific details."

Howard remained in Unit 2 for almost two months before prison officials moved him to Unit 33, which is in Sterling East. Sterling East apparently provides less supervision and fewer restrictions on contact between inmates than Unit 2. Immediately after arriving in the new unit, Howard saw a familiar face in the recreation yard: a 2-11 Crew member whom he recognized from his days at Fremont. This person saw Howard and told him that Ghost, the gang member who had been responsible for the threats to Howard at Fremont, "has a friend here" at Sterling.

Believing himself to be in danger, Howard immediately reported the contact to Backer, his case manager at the time. Howard told Backer that an individual in the Sterling East recreation yard "had contact" with a 2-11 Crew member at Fremont who had "extorted him, threatened him with violence, forced him into prostitution, and attempted to recruit him for the sole purpose of financially assisting the gang."³ According to Howard, Backer did not take any steps to protect him, and instead told Howard that he could not be moved to another unit unless he named the specific individuals who threatened him and recorded a taped statement against them. Because he had been threatened with a knife and assaulted by 2-11 Crew members in the past, Howard refused to name the inmates out of fear of retaliation.

Howard then began filing formal grievances with prison officials. On April 27, 2005, Howard filed an initial, or "Step 1," grievance pursuant to CDOC Regulation 850-04.⁴ Howard's grievance summarized the gang's attempts to recruit him at Fremont for his expertise in carrying out financial fraud, but did not go into detail regarding threats of violence or prior sexual attacks. It explained:

I had no problems on the West Side of [Sterling]. On April 27, 2005, I was transferred to . . . [Sterling]-East. . . . Immediately I became aware that 2 individuals on [Sterling]-East are in contact w/ 2-11 members at [Fremont]. I brought the situation to the attention of Case Mgr. Mr. Backer and made him privy to all related facts and history. Mr. Backer attempted to blame me for the situation telling me I should have maintained "a low profile." Mr. Backer further asserted that absolutely nothing could or would be done to prevent harassment unless I provided a taped statement against the 2-11 gang members. . . . I refused to give a statement and/or provide names out of fear of retaliation.

After defendant-appellee Clarkson received Howard's Step 1 grievance, a meeting occurred between Howard, Clarkson, Backer, and Halligan. During the meeting, Halligan allegedly told Howard that "[Sterling] is a prison and not a playground" and that he would "have to learn to live with" threats of violence. He also told Howard that "crime just doesn't pay."

Following the meeting, Clarkson denied Howard's grievance. Clarkson's response stated that following the meeting, "it was determined that [Howard] did not feel threatened at this time." Clarkson went on to explain that although Howard did not have to provide a taped statement, prison authorities "do have to have names," and Howard's assertion that he had problems with "two, 211 members, who wear green clothes is not enough." Expressing concern that prison officials might accidently move Howard into a cell with a gang member, he added that "[w]e cannot keep you away from all 211 members." Finally, Clarkson...