Mitchell v. Gerlach

• Decision Date: 02 September 2022
• Docket Number: CIV-17-732-HE
• Parties: WALLACE GILBERT MITCHELL, Plaintiff, v. JIM GERLACH, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

WALLACE GILBERT MITCHELL, Plaintiff, v. JIM GERLACH, et al., Defendants.

No. CIV-17-732-HE

United States District Court, W.D. Oklahoma

September 2, 2022

REPORT AND RECOMMENDATION

AMANDA MAXFIELD GREEN JUDGE

Plaintiff Wallace Gilbert-Mitchell (“Plaintiff”), a federal prisoner appearing pro se^[1]and in forma pauperis, filed this action under 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights. (Doc 1).^[2]United States District Judge Joe Heaton referred the matter to United States Magistrate Judge Shon T Erwin for initial proceedings consistent with 28 U.S.C § 636(b)(1)(B), (C). (Doc. 4). It was subsequently transferred to the undersigned Magistrate Judge. (Doc. 113). Before the Court are Defendants' Motions for Summary Judgment (Docs. 181, 182),^[3]arguing that (1) Defendants did not violate Plaintiff's constitutional rights, (2) Defendants are entitled to qualified immunity, and (3) Plaintiff failed to exhaust his administrative remedies. Plaintiff has responded (Docs. 188, 189), and Defendants have replied (Docs. 196, 197).

Collaterally, after Plaintiff filed his Responses, Defendants moved to strike four of the ten exhibits (Doc. 188, at Exs. 3, 6, 7, 10) that Plaintiff attached to his Response. (Doc. 195). Plaintiff then responded twice in opposition to Defendants' Motion to Strike (Docs. 208, 216), causing Defendants to file another Motion to Strike (Doc. 218) aimed at Plaintiff's second response - or sur-reply. The Court GRANTS Defendants' Motion (Doc. 218) and STRIKES Plaintiff's filing (Doc. 216) as an unauthorized sur-reply. However, having resolved the Motions for Summary Judgment in Plaintiff's favor without considering any of the disputed exhibits (Doc. 188, at Exs. 3, 6, 7, 10), the undersigned DENIES Defendants' Motion to Strike (Doc. 195) as moot.^[4]

For the reasons set forth below, the undersigned recommends the Court DENY Defendants' Motions for Summary Judgment.

I. Background

In his Complaint, Plaintiff alleges that while he was incarcerated in the Grady County Law Enforcement Center (“GCLEC”), Defendant Nathan Owings, a detention officer, sexually assaulted him by forcibly performing oral sex on him, and Defendant Jim Gerlach, GCLEC warden, “failed to protect Plaintiff” or “take any corrective action” once notified of the assault. (Doc. 1, at 7). Plaintiff initially sued Defendants Gerlach and Owings in their official and individual capacities, seeking monetary damages, as well as injunctive and declaratory relief for alleged violations of his Eighth Amendment rights: specifically, punishment without due process; cruel and unusual punishment; failure to protect; and a violation of the Prison Rape Elimination Act (PREA) (Doc. 1, at 4, 6-8).

On December 11, 2017, District Judge Joe Heaton dismissed all but the following claims: (1) an individual capacity Eighth Amendment claim against Defendant Owings for monetary damages based on the alleged sexual assault, and (2) an individual capacity Eighth Amendment claim against Defendant Gerlach for monetary damages based on the theory that he failed to protect Plaintiff from Owings after learning of the alleged sexual assault. (See Doc. 11).

II. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way” and “[a]n issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986)). If the movant carries the burden of demonstrating an absence of a dispute as to material fact, “the nonmovant must then go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence and that show a genuine issue for trial.” Martin v. City of Oklahoma City, 180 F.Supp.3d 978, 983 (W.D. Okla. 2016) (citing Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler, 144 F.3d at 671).

The Court's inquiry must be whether the evidence, when viewed “through the prism of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. Although the Court views all facts in the light most favorable to the nonmoving party at the summary judgment stage, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249 (citations omitted).

“[I]n opposing a motion for summary judgment, the non-moving party ‘cannot rest on ignorance of facts, on speculation, or on suspicion.'” Bird v. W.Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)). The nonmoving party “must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery.” Anderson, 477 U.S. at 257.

III. The Court Should Deny Defendants' Motions for Summary Judgment.

Defendants begin their briefs attacking the factual probability of the alleged sexual assault, arguing that it never occurred. (Doc. 181, at 18-23; Doc. 182, at 17-22). And of course, if the assault did not occur, then Defendants could not have violated Plaintiff's constitutional rights. Defendants use this proposition of factual improbability as the foundation for their qualified immunity argument as well. However, most - if not all - of the material facts that Defendants use to cobble together this argument, as well as their argument that Plaintiff failed to exhaust his administrative remedies, Plaintiff genuinely disputes. And while Defendants wish to attack Plaintiff's credibility and insinuate that the Court should ignore as evidence his “self-serving” declarations^[5](Doc. 197, at 2), weighing the evidence is not the role of the Court at this stage. Thus, as set forth below, summary judgment is inappropriate here.

A. There Are Genuine Disputes of Material Facts Regarding Whether Constitutional Violations Occurred.

1. There Are Genuine Disputes of Material Facts Regarding Defendant Owings's Alleged Sexual Assault of Plaintiff.

Defendant Owings begins his argument by claiming “that there are no material facts at issue under which Plaintiff would be entitled to any relief,” and thus, he “is entitled to summary judgment.” (Doc. 182, at 19). However, Defendant Owings follows this statement with almost exclusively disputed facts. First and foremost, Defendant Owings “consistently denie[s] that he sexually assaulted Plaintiff.” (Doc. 182, at 19; see id. at 11, 13; Doc. 24, at Exs. 4, 5). However, Plaintiff's sworn declaration says the opposite. (Doc. 188, at Ex. 1, at 3) (“On or about March 10, 2016 Owings escorted me alone to a secluded area in the GCLEC, and forcibly performed oral sex on me.”). Thereafter, Defendant Owings continues to offer up additional disputed facts, often immaterial ones, to call the ultimate disputed fact - the sexual assault - into question.

Defendant Owings attacks Plaintiff's recollection of the date of the assault when compared with the date of the surrounding events Plaintiff describes preceding the assault. (Doc. 182, at 19). Defendant Owings points out that “Plaintiff initially complained that Owings sexually assaulted him on or around March 10, 2016 - i.e. the day after Owings (and two other detention officers) placed Plaintiff on lockdown. Yet during his deposition, Plaintiff subsequently testified that the purported assault occurred when he was being moved from Cell 337 to Cell 2F-05, i.e. on March 9, 2016.” (Id.; id. at 10-11 (comparing Doc. 24, at Exs. 4, 5, 6 with Doc. 182, at Ex. 6, at 13-16)). The undersigned finds this argument unpersuasive and immaterial. Plaintiff's caveat of “on or around” and consistent description of the events leading up to this alleged assault clearly encompass the day before or the day after March 10, 2016. Regardless, the parties' continued quibbling over the exact date amounts to a factual dispute.

Defendant Owings then proffers that he had little contact with inmates given his position as “Classification Sergeant,” and further that he “was not alone when he escorted Plaintiff . . .; instead, two other detention officers also escorted Plaintiff.” (Doc. 182, at 20; id. at 10; see Doc. 24, at 9-10). But again, Plaintiff specifically disputes these facts, claiming that he “routinely saw Defendant Owings in [his] cell housing area,” “Defendant Owings escorted [him] alone to a secluded area,” and that “he has never been escorted by Owings in the company of others.” (Doc. 188, at Ex. 1, at 2-3).

Defendant Owings then pivots to probabilities, positing that “[c]onsidering the height and weight differences [between Defendant Owings and Plaintiff], as well as Owings' shoulder injury, it is difficult to believe that he was physically capable of ‘forcibly performing oral sex' on Plaintiff.” (Doc. 182, at 20; see id. at 10; Doc. 24, at Exs. 5, 11, 12 (describing Plaintiff and Defendant's physical characteristics, as well as noting Defendant Owings's recommended limitation to not reach above his chest or overhead)). While Plain...