636 F.3d 757 (6th Cir. 2011), 09-1791, Bishop v. Hackel

Docket Nº:09-1791.
Citation:636 F.3d 757
Opinion Judge:BOYCE F. MARTIN, JR., Circuit Judge.
Party Name:Russell A. BISHOP, Plaintiff-Appellee, v. Mark A. HACKEL, Sheriff; James Stanley, Deputy; John Cantea, Deputy; S. Anderman, Deputy; Harrell, Deputy, Jointly and Severally, Defendants-Appellants, Kevin Hartley, Sgt.; Roberts, Captain; Moore, Lt.; Sanborn, J/A; Laura Hogan, Deputy, Defendants.
Attorney:Michael S. Bogren, Plunkett Cooney, Kalamazoo, Michigan, for Appellants. Heather Anne Glazer, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellee. Mary Massaron Ross, Plunkett Cooney, Detroit, Michigan, for Appellants. Heather Anne Glazer, Fieger, Fieger, Kenney, Jo...
Judge Panel:Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.
Case Date:February 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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636 F.3d 757 (6th Cir. 2011)

Russell A. BISHOP, Plaintiff-Appellee,

v.

Mark A. HACKEL, Sheriff; James Stanley, Deputy; John Cantea, Deputy; S. Anderman, Deputy; Harrell, Deputy, Jointly and Severally, Defendants-Appellants,

Kevin Hartley, Sgt.; Roberts, Captain; Moore, Lt.; Sanborn, J/A; Laura Hogan, Deputy, Defendants.

No. 09-1791.

United States Court of Appeals, Sixth Circuit.

February 1, 2011

Argued: Dec. 2, 2010.

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ARGUED:

Michael S. Bogren, Plunkett Cooney, Kalamazoo, Michigan, for Appellants.

Heather Anne Glazer, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellee.

ON BRIEF:

Mary Massaron Ross, Plunkett Cooney, Detroit, Michigan, for Appellants.

Heather Anne Glazer, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellee.

Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Plaintiff-appellee Russell A. Bishop filed a claim under 42 U.S.C. § 1983 against various personnel at the Macomb County Jail, alleging that he suffered sexual abuse by another inmate as a result of their deliberate indifference to his safety needs in violation of the Eighth Amendment. The jail personnel sought summary judgment on the basis of qualified immunity. The district court denied the motion as to defendants-appellants Deputy James Stanley, Deputy John Cantea, Deputy Scott Anderman, and Deputy Harrell. The Deputies filed this interlocutory appeal. We REVERSE the district court's denial of qualified immunity to Cantea, Anderman, and Harrell, and AFFIRM the district court's denial of qualified immunity to Stanley.

I. BACKGROUND

The upper D-Block of the Macomb County Jail holds approximately seventy-six inmates. It includes the Mental Health Unit and the Mental Health Step-Down Unit. The Mental Health Step-Down Unit holds up to twelve inmates with mental health problems who have been stabilized. On every shift, three corrections officers monitor the upper D-Block. One corrections officer, assigned to Mental Health Control, is responsible for maintaining a log book. The other two corrections officers are runners, one for the Mental Health Unit and one for the D-Block. Runners spend approximately sixty percent of their time making rounds.

On December 1, 2004, Bishop entered the Macomb County Jail on a charge of assault with intent to murder. Harrell processed Bishop through booking and filled out a form entitled " Initial Classification/Temporary Cell Assignment." The form described Bishop's physical build as small. It indicated that he had been in a number of mental institutions and had attempted suicide. The form also stated that Bishop was unable to understand questions; exhibited angry or hostile and bizarre behavior; and appeared anxious or

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afraid, depressed, confused, and unusually embarrassed. Harrell completed a referral form that scheduled Bishop for a mental health assessment by Correctional Medical Services, which provided mental health services for the inmates.

Bishop was placed in the Mental Health Unit's high observation cell. Later that day, Bishop was moved to the general Mental Health Unit on the recommendation of Scott Webster, a limited license psychologist with Correctional Medical Services.

On December 10, Laura Hogan, a limited license psychologist with Correctional Medical Services, conducted a mental health assessment of Bishop and recommended that he be placed in the Mental Health Step-Down Unit. Bishop was housed in the Mental Health Step-Down Unit from December 10 through December 25.

On December 10, inmate Charlie Floyd was placed in the Mental Health Step-Down Unit on the recommendation of Webster. Floyd had been charged with multiple counts of criminal sexual conduct. On December 13, Floyd was accused of a major rule violation when he was seen throwing food trays at a jail trustee. He was found guilty of horseplay and placed in administrative segregation from December 14 through December 19. Thus, Bishop was housed with Floyd in the Mental Health Step-Down Unit from December 10 through December 13, and December 19 through December 25. At the time of the alleged assaults, Floyd was forty-four years old, five feet and nine inches tall, and 160 pounds. Bishop was nineteen years old, five feet and five inches tall, and 160 pounds.

On December 25, Bishop met with Hogan for a mental health visit. Hogan testified about her shorthand notes from the meeting. She stated that Bishop reported feeling upset because Floyd wanted to touch his penis. Bishop was not able to identify the date of the alleged incident and he said that he had not reported the abuse to corrections officers. Hogan told Bishop that he could prosecute Floyd for inappropriate sexual behavior, and Bishop said that he wanted to talk to a corrections officer. Hogan advised Stanley about Bishop's allegation.

On December 25 Stanley was working in the Mental Health Step-Down Unit with Anderman and Cantea. Stanley was working as the D-Block runner, Anderman was working as the Mental Health Unit runner, and Cantea was assigned to Mental Health Control. Stanley and Anderman spoke with Bishop, and he informed them that Floyd had been sexually assaulting him. Stanley filled out an Incident Report that stated that he had been informed by the Mental Health staff that Floyd had made sexual advances toward inmates. Stanley handed out witness statement forms to the inmates in the Mental Health Step-Down Unit who were residing there when Floyd was present. All the forms he received back stated that Floyd was physically and sexually abusive to several inmates. Stanley interviewed Bishop and Floyd, as well as inmates Kevin Bradford and Raymond Huffman.

Bishop told Stanley that Floyd started out by stealing his food trays and only allowing him to eat the bread. Then Floyd began to sexually abuse Bishop by forcing him to touch Floyd's penis, laying in bed with him, forcing his pants down, trying to have sex with him, masturbating on him, attempting to have him perform oral sex, and threatening to kill him if he told any officers. Bishop also stated that Floyd hit him, causing Bishop to hit his head on the bed.

Two other inmates also reported inappropriate behavior or abuse by Floyd. Huffman, who was bunked with Floyd in

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the Mental Health Unit, reported that Floyd said he liked Bishop and thought Bishop was cute. Bradford stated that Floyd stole his food trays and other items, threatened him, forced Bradford to masturbate him, and punched him in the face and pushed him around the unit.

Floyd denied having anything to do with any inmates. He was not questioned for specifics because of the possibility of criminal charges.

Stanley submitted paperwork concerning the allegations against Floyd to his supervisor, Kevin Hartley. A protective order was put in place to keep Floyd and Bishop from having any contact with each other. Floyd was moved from the Mental Health Step-Down Unit. From December 25 through Bishop's January 3, 2005 release, Floyd was kept in lock-down in the Mental Health Unit and Bishop remained in the Mental Health Step-Down Unit.

In his deposition, Bishop provided testimony concerning Floyd's physical and sexual abuse that was consistent with the statement he initially made to Stanley. He said that upon first meeting Floyd in the Mental Health Step-Down Unit, Floyd threw his head against the bed. He claimed that Floyd stole his food, and when Bishop told corrections officers, they did not do anything. Bishop did not remember how many days later it was that Floyd began sexually assaulting him. Bishop testified that he repeatedly told corrections officers about Floyd sexually assaulting him but they did nothing to stop it. Bishop did not remember the names of the corrections officers he made reports to, could not describe them, and did not remember when he told them or how many times he told them. Bishop said that his December 25 statement constituted his only written statement concerning the incidents of sexual assault by Floyd.

On October 5, 2007, Bishop filed a complaint against a number of Macomb County Jail personnel. In Count I, he made a claim under 42 U.S.C. § 1983, asserting that a number of jail personnel violated his rights under the Eighth Amendment by keeping him housed in a unit where he would be subjected to sexual abuse. In Count II, he sued Macomb County Sheriff Hackel in his official capacity under section 1983 for failing to train employees on how to handle complaints of inmate assault. In Count III, he brought a state law claim for gross negligence and negligence against a number of jail personnel. All defendants moved for summary judgment.

Only a small number of those claims are before us on appeal. The district court granted summary judgment for all defendants on the negligence claims, and for a number of defendants on the section 1983 claims. However, the district court denied summary judgment to Hackel 1 and the Deputies on the section 1983 claims. The district court found that the Deputies were not entitled to qualified immunity from Bishop's Eighth Amendment claims. The district court noted that the doctrine of qualified immunity calls for a two-step analysis: a court must determine (1) whether the facts that the plaintiff alleges make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the

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defendant's misconduct. The district court found as an initial matter that an inmate's right to be protected...

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