Marsh v. Phelps County, 081518 FED8, 17-1260

Docket Nº:17-1260
Opinion Judge:BEAM, CIRCUIT JUDGE.
Party Name:Ronda L. Marsh, and all others similarly situated Plaintiff- Appellant v. Phelps County; Gene Samuelson, Individually and in his official capacity as Sheriff; Penny Gregg, Individually and in her official capacity as Phelps County Correctional Lieutenant; Louis P. Campana, in his official capacity Defendants - Appellees Louis P. Campana, ...
Judge Panel:Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
Case Date:August 15, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

The Eighth Circuit affirmed the district court's grant of summary judgment to the County and others in a 42 U.S.C. 1983 action alleging that plaintiff was sexually assaulted by former corrections officer Louis Campana. The court held that the claims against the County were properly dismissed where plaintiff failed to show that the County itself caused the constitutional violation at issue;... (see full summary)

 
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Ronda L. Marsh, and all others similarly situated Plaintiff- Appellant

v.

Phelps County; Gene Samuelson, Individually and in his official capacity as Sheriff; Penny Gregg, Individually and in her official capacity as Phelps County Correctional Lieutenant; Louis P. Campana, in his official capacity Defendants - Appellees

Louis P. Campana, Individually Defendant

No. 17-1260

United States Court of Appeals, Eighth Circuit

August 15, 2018

Submitted: May 16, 2018

Appeal from United States District Court for the District of Nebraska - Lincoln

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

BEAM, CIRCUIT JUDGE.

Former Phelps County inmate Ronda Marsh appeals from the district court's1grant of summary judgment in favor of Phelps County, and Sheriff Gene Samuelson, Corrections Lieutenant Penny Gregg, and Louis P. Campana in their official capacities2 (collectively, "the County"), as well as the court's dismissal of the claims against Samuelson and Gregg individually, in this 42 U.S.C. § 1983 action. We affirm.

I.

BACKGROUND

Marsh alleges she was sexually assaulted by former corrections officer Louis Campana while she was incarcerated at the Phelps County Jail for five days in June 2012. Marsh sued Phelps County and the three jail employees in their individual and official capacities, claiming Campana's actions shocked the conscience; that the County was deliberately indifferent in violation of her Eighth Amendment rights by failing to protect her from the known risk of harm presented by Campana; and that she and other similarly situated females were denied Equal Protection in violation of the Fourteenth Amendment.

As this is an appeal from a grant of summary judgment, the following facts are stated in the light most favorable to Marsh.3 Skalsky v. Indep. Sch. Dist. No. 743, 772 F.3d 1126, 1128 (8th Cir. 2014). Sheriff Samuelson was elected Sheriff in 2011 and Lieutenant Gregg began her employment with the Phelps County Sheriff's Office in 1999, serving as jail administrator since 2001. The Phelps County Jail hired Campana on April 21, 2010, after conducting a background check that disclosed only a speeding citation. Campana's application revealed that he had previously worked as a school janitor, as an assistant manager at Sun Theater, and as a host home provider for disabled persons. This employment was verified by Lieutenant Gregg. Nothing on the application or the background check was cause for concern and Gregg recalls that all pre-hire reference checks were positive. Lieutenant Gregg verified Campana's employment at Sun Theater with one of the references who did not voice any concerns about Campana's job performance there. However, there was a corrections officer who had formerly worked with Campana who was also listed as a reference on Campana's application who later recalled (when interviewed following Campana's July 2012, suspension) that he notified Gregg at the time of Campana's hiring that Campana might "possibly [have] problems working around females."

Campana began work at the jail and successfully completed the jail's training program, which began upon hire and continued throughout his employment, wherein he completed the requisite hours of policy and procedure training and passed the many policy exams. This training included instruction on, among many other things, appropriate staff-inmate communications, ethics, facility policies and procedures, and key control. Campana also reviewed and agreed to abide by Phelps County's personnel policies and code of ethics.

Phelps County conducted regular performance evaluations of Campana approximately every six months. He had received four evaluations prior to his suspension in 2012. Very generally, all four rated Campana as primarily "satisfactory" in the various components. There were concerns noted on these evaluations, including Campana's tendency to be too chatty with inmates, low marks for "control post" and "professionalism," that he needed to watch what he said over the radio because he had cursed over the radio, and the need to limit time at female cells. On one evaluation under a portion of the evaluation regarding "judgment," Campana's immediate supervisor wrote "[d]oing ok here. Does need to use better judgment when speaking to or around inmates. Limit time at female cell. Can open yourself up for a law-suite [sic]." Campana was counseled, generally, about his too friendly nature with inmates. Campana was promoted to Corporal in May 2012, two years after he was hired.

On May 27, 2012, Officer Lacey Stone sent an email to Lieutenant Gregg concerning the actions of a female inmate, Tammy Knight, that Officer Stone had reviewed "doing some very inappropriate things" on camera while in her cell overnight. Officer Stone professed that she and another officer were reviewing video from previous evenings to figure out when someone got out of bed and discovered the footage of the inappropriate incident. She wrote that "I'm not for sure who was in control that night, but maybe they should pay a little more attention or maybe they were?"

In response to Stone's email, Lieutenant Gregg reviewed the relevant surveillance video, as well as the video footage from the master control office from the same time period to see if any of the officers on duty might have seen the inmate's behavior. Campana was the control officer on duty the night in question but Lieutenant Gregg did not observe anything about Campana's behavior from the footage to suggest that Campana was "fixated" on Knight on the video monitors during the relevant time period, nor did he appear to Gregg to be doing anything to indicate he was watching Knight. Lieutenant Gregg concluded that the officers on night shift duty, including Campana, were performing normal duties. Based on her experience and knowledge that it is very common for both female and male inmates to masturbate in their cells while incarcerated, Gregg determined the email and informal investigation did not supply any basis for corrective action against either the inmate or any night shift employee. She did not question the inmate or Campana about the incident. On May 29, 2012, Lieutenant Gregg emailed Sheriff Samuelson to notify him of the situation reported by Stone. Sheriff Samuelson personally reviewed the relevant video and agreed with Lieutenant Gregg's assessment that no disciplinary action was required.

In May or June of 2012, a co-worker of Campana's, Stephanie Johnson, reported to a shift supervisor, Christi Meyer, that she thought she had seen Campana put his arm around a female inmate. Shift supervisor Meyer investigated Johnson's concern by reviewing the applicable video footage, which clearly showed from a rear vantage that Campana never physically touched the inmate at the time in question. Meyer followed up with Johnson, and Johnson indicated that she might have been mistaken because her vantage point of Campana and the female inmate had been from the side, not the back, which was a more direct view. Meyer verbally informed Lieutenant Gregg about the complaint as well as how she resolved the matter.

At that same time, Officer Johnson verbally expressed concern to Lieutenant Gregg about Campana. Officer Johnson asked to rotate shifts because she no longer wanted to work with Campana because she was uncomfortable with the amount of time Campana spent interacting with female inmates. Johnson explained to Gregg that Campana would often request other correction officers to cover his position so that he could go and speak with female inmates who had requested his assistance. Lieutenant Gregg told Officer Johnson to write a report detailing her request, as well as to formally report the incident she had reported to Meyer, but Johnson did not do so. At no time in this case did any correctional officer at the jail provide a written report to Lieutenant Gregg or Sheriff Samuelson regarding any suspicion that Campana was engaging in sexual misconduct with inmates.

Appellant Ronda Marsh was incarcerated at the Phelps County Jail from June 22, 2012, to June 27, 2012. During her incarceration, although she was aware of the processes available to her as an inmate, Marsh did not submit any complaints to jail staff or management regarding being subjected to or having observed any sexual misconduct, or that she was sexually assaulted by Campana. On July 11, 2012, Lieutenant Gregg learned of Campana engaging in inappropriate sexual conduct with inmates when Gregg returned a call to a former female inmate who informed Gregg that "the Corporal" (who Gregg discerned was Campana) had been acting inappropriately with female detainees at the jail. When asked for details, this inmate complained that Campana would inappropriately give candy to female inmates out of the camera view, make kissing gestures, had asked her for a hug, and pinched the nipple of a female inmate.

The same day Lieutenant Gregg learned of these allegations, Gregg advised Sheriff Samuelson and she began to investigate by attempting to contact another former inmate and by visiting with a current inmate who corroborated the allegations Lieutenant Gregg learned during the phone call. Sheriff Samuelson contacted Campana that same day as well and advised him that he would be on paid suspension pending an investigation of the matter. Thereafter, a review of video footage showed Campana in the areas of the jail where the females are housed but did not reveal any overtly sexual contact between Campana and a female inmate. However, Lieutenant Gregg and Sheriff Samuelson were concerned by one portion of the video they reviewed that appeared to depict some kind of physical contact between Campana and a female inmate while he was seated at a table with...

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