Keith v. Werholtz
| Decision Date | 28 March 2012 |
| Docket Number | CIVIL ACTION No. 11-2281-KHV |
| Parties | TRACY KEITH, Plaintiff, v. ROGER WERHOLTZ, RICHARD KOERNER, WILLIAM CUMMINGS, MAJOR JOSEPH P. ESSMAN, CAPTAIN MARK ROBERTSON, and ANANSTACIO GALLARDO, Defendants. |
| Court | U.S. District Court — District of Kansas |
Under 42 U.S.C. §§ 1983 and 1988, Tracy Keith brings suit against Topeka Correctional Facility ("TCF") employees Roger Werholtz, Richard Koerner, William Cummings, Joseph P. Essman, Mark Robertson and Ananstacio Gallardo. Plaintiff brings individual capacity claims against all defendants, alleging violation of the Eighth Amendment. Specifically, plaintiff alleges that on October 2, 2007, while she was incarcerated at TCF, Gallardo forced her to have sex. She alleges that prior to that date, the other defendants created and allowed a custom/policy/practice/culture of sexual misconduct at TCF which put plaintiff and other inmates at substantial risk of harm, failed to take reasonable measures to abate the culture of sexual misconduct and were deliberately indifferent to this substantial risk of harm.
This matter is before the Court on the Motion To Dismiss Plaintiff's Complaint (Doc. #7) which defendants Werholtz, Koerner, Cummings, Essman and Robertson filed July 15, 2011.Under Rule 12(b)(6), Fed. R. Civ. P., the moving defendants assert qualified immunity and claim that plaintiff brings her claims outside the statute of limitations. For reasons stated below, the Court sustains defendants' motion in part.
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible -and not merely conceivable - on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 129 S. Ct. at 1950.
The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of framing her complaint with enough factual matter to suggest that she is entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when she pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949. Plaintiff must show more than a sheer possibility that defendants have acted unlawfully - it is not enough to plead facts that are "merely consistent with" defendants' liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action or naked assertions devoid of further factual enhancement will not stand. Iqbal, 129 S. Ct. at 1949.Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged - but has not "shown" - that the pleader is entitled to relief. Id. at 1950. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
While ordinarily the statute of limitations is an affirmative defense, the issue may be resolved on a Rule 12(b)(6) motion to dismiss where the application of the limitations period is apparent on the face of the complaint. Aldrich v. McCulloch Props. Inc., 627 F.2d 1036, 1041 (10th Cir. 1980). Because no federal statute of limitations exists for Section 1983 actions, courts look to analogous state laws and the applicable state statutes of limitation to determine the appropriate time limit for filing a particular Section 1983 action. Baker v. Bd. of Regents of Kan., 991 F.2d 628, 630 (10th Cir. 1993). The parties agree that a two-year statute of limitations applies here, and that plaintiff's causes of action accrued on October 2, 2007. See K.S.A. § 60-513.1 Plaintiff's claims are thus time-barred unless she establishes a factual basis for tolling the statute. Aldrich, 627 F.2d at 1041 n.4.
Qualified immunity shields government officials from individual capacity liability for performing discretionary acts so long as their conduct does not violate clearly-established statutory or constitutional rights about which a reasonable person would know. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). The doctrine of qualified immunity serves the goals of protecting officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 506 (1978). To survive a qualified immunity defense, plaintiff must allege that defendants either (1) personally participated in the alleged constitutional violation, Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997), or (2) in a supervisory capacity, created, promulgated or implemented a policy which deprived plaintiff of her constitutional rights, acting with the state of mind required to establish the alleged constitutional deprivation, Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (quotation omitted).
To analyze a qualified immunity defense in a motion to dismiss, the Court considers whether plaintiff has alleged facts which make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of defendants' alleged misconduct. Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011) (quotations omitted). Whether a right is "clearly established" is an objective test: "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010) (quotation omitted). "In order for the law to be clearlyestablished, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Id. (quotation omitted). And, in the Tenth Circuit, it is "particularly important" that the Section 1983 complaint makes clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective actions against the state. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (internal quotations omitted).
Viewed in the light most favorable to plaintiff, the complaint and record evidence are as follows:2
From November 16, 2006 through May 18, 2010, plaintiff was an inmate of the Kansas Department of Corrections ("KDOC") at TCF. During some or all of this period, defendants worked at TCF: Werholtz as Secretary of Corrections, Koerner as Warden, Cummings as Deputy Warden, Robertson as Captain, Essman as shift supervisor and Gallardo as an instructor and maintenance worker.
Keith participated in the plumbing/maintenance program at TCF and Gallardo was herinstructor. On October 2, 2007, Gallardo forced plaintiff to have sex with him. Afterward, he smuggled morning-after pills to her and tried to give her the abortion pill RU486, but plaintiff became pregnant. In mid-November of 2007, another inmate told guards about Keith's pregnancy, and on December 19, 2007, a state victim services liaison drove Keith to the Johnson County Planned Parenthood Clinic, where she had an abortion.
Gallardo stopped coming to work at TCF in early November of 2007 and his wife found out about his conduct a few weeks later. Gallardo was later charged in Shawnee County, Kansas and on June 19, 2008, he pleaded guilty to unlawful sexual relations and two counts of trafficking in contraband in a correctional institution. While employed at TCF, Gallardo had sex with as many as six other female prisoners and threatened to harm anyone who "broke their code of silence." In October of 2007, Gallardo had sex with an inmate V.S. in the TCF maintenance building. The TCF chief investigator interviewed her and afterward, she was told not to talk to anyone about it and sent to maximum security for approximately 30 days.
In June of 2005, another TCF inmate filed a lawsuit (Case No. 05-cv-3397-JTM-DWB) alleging that male officers, including Essman, strip-searched her. Essman testified by affidavit that during the strip-search he watched while another office (Van Dyke) cut off the inmate's clothing because it was necessary to prevent the inmate from harming herself. The Martinez Investigative Report in that case indicates that after the incident, the warden (Koerner) clarified the policy to require that only female officers should forcibly remove an inmate's clothing unless a true emergency situation exists. The suit was dismissed on summary judgment. Plaintiff alleges that Essman hired Van Dyke and shared some of Van Dyke's attitudes toward sexual conduct.
On October 3, 2009, the Topeka Capital-Journal published an article entitled "Women'sprison: Sex trade." The reporter...
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