Ard v. Rushing

• Decision Date: 30 August 2012
• Docket Number: Civil Action No. 3:12CV2TSL–MTP.
• Citation: 911 F.Supp.2d 425
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Amber ARD, Plaintiff v. Steve RUSHING, et al., Defendants.

911 F.Supp.2d 425

Amber ARD, Plaintiff

v.Steve RUSHING, et al., Defendants.

Civil Action No. 3:12CV2TSL–MTP.

United States District Court,

S.D. Mississippi,

Jackson Division.

Aug. 30, 2012.

Barry W. Gilmer, Seth C. Little, Gilmer Law Firm, Madison, MS, for Plaintiff.

William Robert Allen, Robert O. Allen, Allen, Allen, Breeland & Allen, PLLC, Brookhaven, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendant Sheriff Steve Rushing for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Amber Ard opposes the motion, and the court, having considered the parties' memoranda, together with attachments, concludes that the motion is well taken and should be granted.

Plaintiff Amber Ard filed this action pursuant to 42 U.S.C. §§ 1983 and 1985 against defendant Steve Rushing, Sheriff of Lincoln County, Mississippi, and former sheriff's deputy Tim Miller,¹ asserting claims for violation of the Fourth, Fifth and Eighth Amendments, and also alleging a state law claim for negligence, relating to an incident in which she was sexually assaulted by defendant Miller while she was incarcerated at the Lincoln County Jail. According to Ard's complaint, she was arrested on June 9, 2010 by the Lincoln County Sheriff's Department and placed in a jail cell on the upper floor of the facility, which had been designated for female inmates and where only female guards were allowed. Early on the morning of June 11, 2010, Ard, who was at the time the only inmate housed on the upper floor, was awakened by Miller, who offered her cigarettes and began making sexual remarks and advances toward her. She refused his offers and demanded that Miller leave her cell. At the time, Miller appeared calm and rational, and left.

Early the next morning, June 12, an agitated Miller awakened Ard and forced her into a small room with a padded mat on the floor. Miller then sexually assaulted Ard. According to the complaint, Ard did not report the rape to jail officials that day because she was under constant watch by other male guards by whom she felt threatened. Instead, she reported the rape the next day when a female deputy, Tosha Williams, began her shift at the jail. Ard was transported to the hospital where she was examined and found to have been sexually assaulted. Within a week of Ard's having reported the rape, Rushing terminated Miller's employment. Miller was subsequently arrested for sexual assault and subsequently pled guilty to sexual penetration of an incarcerated individual.

By the present motion, Sheriff Rushing seeks dismissal on qualified immunity grounds of Ard's § 1983 and § 1985 claims against him in his individual capacity. Ard maintains that genuine issues of material fact preclude summary judgment on the sheriff's qualified immunity defense. For the reasons that follow, the court concludes that Rushing is entitled to qualified immunity.

“[G]overnment officials performing discretionary functions generally ... are ‘shielded 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.’ ” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1696, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “What this means in practice is that whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action generally turns on the ‘objective legal reasonableness' of the official's action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense. See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001). Thus, the doctrine of qualified immunity shields federal and state officials from money damages unless a plaintiff shows “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, ––– U.S. ––––, ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).

To resolve the applicability of a qualified immunity defense, the court employs a two-pronged test.² The first prong requires the court to consider “whether the challenged conduct, viewed in the light most favorable to the plaintiff, would actually amount to a violation of [constitutional or] federal law.” Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir.2009) (internal citations and quotation marks omitted). If the plaintiff failed to allege a violation of a constitutional right, then the analysis ends. Whittington v. Maxwell, 455 Fed.Appx. 450, 456 (5th Cir.2011) (citations omitted). Secondly, if the conduct would amount to a violation of plaintiff's constitutional rights, the court then considers “whether the defendant's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question.” Id.

In the present case, although Ard's complaint is cast in terms of putative violations of the Fourth, Fifth and Fourteenth Amendments, her constitutional rights necessarily flow from the Eighth Amendment's prohibition against cruel and unusual punishment since she was incarcerated for a probation violation at the time of the assault by Miller. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.1996). Rushing interprets Ard's complaint as asserting two possible Eighth Amendment individual capacity claims against him, the first based on his alleged failure to protect her from Miller's sexual assault, see Payne v. Parnell, 246 Fed.Appx. 884, 889 (5th Cir.2007) (“[t]o state a failure to protect claim under § 1983, [plaintiff] must show that [she] [was] incarcerated under conditions posing a substantial risk of serious harm and that prison officials were deliberately indifferent to [her] need for protection”), and the second premised on a failure to train and/or supervise theory, see Lewis v. Pugh, 289 Fed.Appx. 767, 771–72 (5th Cir.2008) (where supervisor is not personally involved with acts causing deprivation of constitutional rights, to impose liability plaintiff must show: “(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of [her] rights; and (3) the failure to train or supervise amounts to deliberate indifference.”) (internal citation and quotation omitted).³

It is not disputed that Ard has alleged the violation of a clearly established constitutional right. See Stockman v. Lowndes County, Mississippi, 2000 WL 33907696, *2 (N.D.Miss. Aug. 21, 2000) (holding “sexual assault on an inmate by a guard, regardless of the gender of the guard or of the prisoner, is deeply offensive to human dignity”) ( citing Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir.2000), and Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“Being violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’ ”)). The focus, then, is on the second prong of the qualified immunity analysis, whether the sheriff's actions were objectively reasonable.

To overcome a claim of qualified immunity in the context of an alleged failure to protect in violation of the Eighth Amendment, this second prong has two subparts: “First, the plaintiff must show that there was a ‘substantial risk of serious harm[,]’ [and] [s]econd, the plaintiff must show that the prison official was deliberately indifferent to that risk.” Morgan v. Hubert, 459 Fed.Appx. 321, 324 (5th Cir.2012) (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). “Deliberate indifference is shown by proving ‘the official knows of and disregards an excessive risk to inmate health or safety; 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.’ ” Id. (quoting Farmer); see also Payne v. Parnell, 246 Fed.Appx. at 889–90 (stating that “[f]or an official to act with deliberate indifference ..., he ‘must both be aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference’ ”) (quoting Farmer ). The Fifth Circuit has stated that

[t]he deliberate indifference standard is “an extremely high standard to meet.” Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir.2001). We have declined to find deliberate indifference where an official “should have” inferred a risk posed to an inmate, requiring proof that the official “did draw such an inference.” Adames, 331 F.3d at 514;see also Farmer, 511 U.S. at 838, 114 S.Ct. 1970;Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir.1996) ( en banc ). Nevertheless, an inmate does not have to produce direct evidence of an official's knowledge about the risk; he may rely on circumstantial evidence to demonstrate such knowledge. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970;Adames [ v. Perez, 331 F.3d 508, 512 (5th Cir.2003) ]. For example, an inmate can prove the requisite knowledge by showing that conduct or occurrences were “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past” such that officials had subjective knowledge of the complained risk. See Farmer, 511 U.S. at 842–43, 114 S.Ct. 1970 (internal quotation marks omitted); Adames, 331 F.3d at 512.

Anderson v. Wilkinson, 440 Fed.Appx. 379, 381–82 (5th Cir.2011).

Regarding the alleged failure to protect claim, Rushing asserts that Ard cannot show that she was housed under conditions...