Bloom v. Toliver

133 F.Supp.3d 1314

Billy J. BLOOM, Beatrice Bloom, Individually and as Parent and Next Friend of Minor Children, B.B., Ha.B, and He.B, Plaintiff,

v.Steve TOLIVER, John Davis, Kelly Birch, Adam Marshall, Chad Pompa, Jeremiah Hammett, and Shawn Sexton, Defendants.

Case No. 12–CV–169–JED–FHM.

United States District Court, N.D. Oklahoma.

Signed Sept. 22, 2015.

Ken Ray Underwood, James C. Thomas, William Douglas Thomas, Thomas Law Firm, PLLC, Tulsa, OK, for Plaintiff.

Ambre Camille Gooch, Christopher James Collins, Jordan Louis Miller, Collins Zorn & Wagner, Oklahoma City, OK, Jessica Lauren Dark, Randall J. Wood, Robert Stevens Lafferrandre, Pierce Couch Hendrickson Baysinger & Green LLP, Oklahoma City, OK, for Defendants.

OPINION AND ORDER

JOHN E. DOWDELL, District Judge.

Before the Court are multiple summary judgment motions filed by the defendants (Doc. 113, 114, 117, 118, 198, 201).

I. Background

The following facts are supported by evidence in the summary judgment record and are taken as true, with all reasonable inferences therefrom drawn in favor of the plaintiff, Billy Bloom.

Bloom was booked into the Creek County Criminal Justice Center ("Jail") in Sapulpa, Oklahoma, on November 23, 2011. At the time, he was a pretrial detainee. Bloom was initially held in the N–Pod unit of the Jail. On December 10, 2011, Bloom was involved in an altercation with another inmate in the N–Pod unit, after which Bloom was moved to a holding unit. The following evening, December 11, 2011, defendant Chad Pompa, a Shift Supervisor at the Jail, ordered Detention Officer Jeremiah Hammett to move Bloom from the holding cell to segregation cell C–212, which was already occupied by inmate Shawn Sexton.

As Hammett and Bloom approached cell C–212 on December 11, 2011, Sexton was seen standing at the cell door.¹ When Hammett opened the door, Sexton immediately exited the cell and attacked Bloom. Sexton hit Bloom in the face with a fist, causing Bloom to fall and strike his head against a metal pipe railing. Sexton continued to hit Bloom while Bloom was on the floor. Hammett stood behind the door to Sexton's cell during the attack on Bloom and did not intervene.

Defendant Adam Marshall, who was the Shift Supervisor on duty at the time, and Jail nurse Evelyn Bates arrived to render assistance to Bloom, who was on the Jail floor. Bates removed blood from Bloom's mouth and used an Ambu bag to assist Bloom in breathing. Marshall used his radio to order the master control operator to both call for an ambulance and call Captain Kelly Birch, the Jail Administrator. After several minutes, an ambulance arrived, and Bloom was taken to the hospital.

Sexton had been incarcerated numerous times since 2008 (Doc. 148–21), was known by Jail personnel to be violent, and had been involved in a number of fights at the Jail. (E.g., Doc. 148–9 at 51, ll. 19–22; id. at 62, ll. 16–20). Defendant Birch testified that he was aware that Sexton was violent and had been in fights and assaults for "as long as he's been incarcerated." (Doc. 148–3 at 53, ll. 10–21). In the year prior to the attack on Bloom, Sexton had been placed in segregation in the C unit several times. (Doc. 150–21 at 15–16). Months before the attack, Pompa noted that, while he was conducting a security check:

Inmate Sexton, Shawn of E–Pod repeatedly kept kicking and beating on the door entering E–Pod. I instructed him to stop what he was doing. Inmate Sexton, Shawn proceeded to to [sic] keep kicking and beating on the door and told me that I would not and could not do anything about it. I instructed him to stop one last time and he proceeded to keep kicking and beating the door. I then called Booking Officer Smith over the radio to come to E–Pod. Once he had arrived I told him what had been going on and that I thought inmate Sexton, Shawn should be moved to C–Pod for his actions. Booking Officer Smith agreed and Booking Officer Smith and myslef [sic] moved inmate Sexton, Shawn to C-pod cell C–212.

(Doc. 148–29 at 1).

Pompa admitted that there were cells other than C–212 where Bloom could have been moved from the holding cell. However, Pompa testified that his intent in moving Bloom "was to discipline Bloom," and placement in any of the other cells "wouldn't have been disciplinary." (Doc. 150–4 at 105–107).

Prior to moving Bloom to C–212, Hammett had been warned by Sexton and perhaps another inmate that Sexton would harm Bloom if Bloom were placed in C–212. Hammett wrote a report of the Sexton attack on Bloom, in which Hammett acknowledged that Sexton had earlier in the day warned that Hammett "better not" place Bloom in Sexton's cell or Sexton would "run him out." Hammett explained the interaction as follows:

IN THE COURSE OF THE DAY INMATE SEXTON, SHAWN REQUESTED THAT I MOVE INMATE COPELAND, TY TO CELL C–212. I ADVISED HIM THAT THERE WOULD BE NO "HAPPY MOVEMENTS" (A TERM USED IN JAILS THAT MEANS TO BUNK CERTAIN INMATES TOGETHER). WHILE FEEDING C–POD INMATE SEXTON, SHAWN REQUESTED THAT I MOVE INMATE COPELAND, TY TO C–212 AGAIN. I ADVISED INMATE SEXTON, SHAWN THAT THE BUNK HAD AN INMATE ALREADY ASSIGNED TO IT AND THAT THIS INMATE WOULD BE ARRIVING SHORTLY AFTER FEEDING. INMATE SEXTON, SHAWN REPLIED, "YOU BETTER NOT, I WILL RUN HIM OUT."²

After the attack, Hammett informed Shift Supervisor Adam Marshall that Sexton had warned Hammett not to put Bloom in that cell. (Doc. 148–5 at 105, ll. 1–14). Hammett also told Bates that, just before the cell door was opened, Sexton had told Hammett, "I do not want him in my cell. If you put him in here I will kill that fucking son-of-a-bitch." (Doc. 148–11 at 5, ¶ h; Doc. 148–35 at 52, ll. 6–15).³

During his incarceration at the Jail, Bloom had no interaction with then-Sheriff Toliver or with Kelly Birch, the Jail Administrator.

During the time-frame leading up to and immediately after the assault, defendants Pompa, Marshall, and Hammett were on duty.

Bloom asserts that he suffers from memory loss, blurred vision, migraine headaches, and balance problems as a result of the injuries sustained in the attack at the Jail, and he brings this suit against defendants Birch, Marshall, Pompa, Hammett, Sexton, then-presiding Creek County Sheriff Toliver, and Sheriff John Davis.⁴ Bloom asserts civil rights claims under 42 U.S.C. § 1983 for alleged violations of the Fourth, Eighth, and Fourteenth Amendments.

II. Summary Judgment Standards

Summary judgment is appropriate "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) ; see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The courts thus determine "whether the evidence 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, 106 S.Ct. 2505. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255, 106 S.Ct. 2505. The court may not weigh the evidence and may not credit the evidence of the party seeking summary judgment and ignore evidence offered by the non-movant. Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866–68, 188 L.Ed.2d 895 (2014) (per curiam).

III. Discussion

A. Official Capacity Claim

Bloom's official capacity claim (now alleged against defendant John Davis, the current Creek County Sheriff) is treated like a claim for municipal liability. An official capacity claim represents one way of asserting "an action against an entity of which [the] officer is an agent." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such claims are treated as claims against the County itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."); Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir.1999) ("[Plaintiff]'s suit against Sheriff LeMaster in his official capacity as sheriff is the equivalent of a suit against Jackson County, [Oklahoma].").

A municipality or county may not be held liable under § 1983 solely because its employee inflicted injury; such liability cannot be found by application of the theory of respondeat superior. Monell, 436 U.S. at 691, 694, 98 S.Ct. 2018. "[L]ocal governments are responsible only for ‘their own illegal acts.’ " Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ). "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694, 98 S.Ct. 2018. Thus, to establish municipal liability under § 1983, a plaintiff must show "1) the existence of a municipal policy or custom and 2) a direct causal link between the policy or custom and the injury alleged." Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). The requirement of a policy or custom distinguishes the "acts of the municipality from acts of employees of the municipality, and thereby make[s] clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur, 475 U.S. at 479, 106 S.Ct. 1292 (emphasis in original).

The Tenth Circuit has described...