Kocsis v. Cnty. of Sedgwick

BRADLEY KOCSIS, Plaintiff, v. COUNTY OF SEDGWICK, et al., Defendants.

CIVIL ACTION No. 14-2167-CM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

March 29, 2016

MEMORANDUM AND ORDER

Plaintiff Bradley Kocsis brings this action against defendants Robert Hinshaw, the Sedgwick County Sheriff during plaintiff's incarceration at the Sedgwick County Detention Center (the "Jail"); Sedgwick County, Kansas ("Sedgwick County"); and defendant David E. Kendall, a detention deputy at the Jail at the time of the incidents at issue. Plaintiff brings claims against all defendants pursuant to 42 U.S.C. § 1983; claims under the Kansas Tort Claims Act ("KTCA") against all defendants; and a claim under the KTCA for the tort of outrage against Kendall only. Before the court is defendants Hinshaw's and Sedgwick County's Motion for Summary Judgment (Doc. 111).

I. Legal Standards

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine" factual dispute requires more than a mere scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In making the summary judgment determination, the court must view the evidence and reasonable inferences in the light most favorable to the nonmoving party. Adler v. Wal- Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). However, the nonmoving party may not rest on the pleadings but must set forth specific facts. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Ultimately, the court evaluates "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 252.

II. Evidentiary Concerns

A. Hearsay Statements Contained Within Unchallenged Reports

Defendants object to a number of statements plaintiff attempts to enter into evidence which are contained in unchallenged investigative reports. Defendants argue that the underlying statements are hearsay if used to prove the matter asserted. If plaintiff intends to use a hearsay statement for the truth of the matter asserted, plaintiff has the burden to show the statement falls under a hearsay exception. See Garcia-Martinez v. City & Cty. of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004) (observing that the proponent bears the burden of demonstrating that a hearsay exception applies). Plaintiff made no such attempts, and the reports are not accompanied by a sworn affidavit. In these instances, unless a hearsay exception clearly applies, the court only considers the statements for non-hearsay purposes, not for the truth of the matter.

B. Requested "Favorable Inferences"

Plaintiff makes a number of requests that the court make favorable inferences based on a lack of evidence in the record. In most cases, it would not be appropriate to do so because plaintiff has the burden of proof on both his § 1983 claims and his negligence claims and refers to a lack of evidence to support his claims, as discussed below.

1. Reporting Discrepancies

Plaintiff refers to what he calls "reporting discrepancies" and requests that the court make inferences favorable to plaintiff in construing the facts. Plaintiff refers first to a report prepared by Lieutenant David E. Milam, who directly reported to Captain Jared Schechter. The report appears to have been prepared in 2015. Plaintiff also provides Prison Rape Elimination Act ("PREA") Surveys, which Sedgwick County Detention Center filled out annually to report instances of sexual misconduct to the Department of Justice. Plaintiff cites to discrepancies between the numbers reported to the Department of Justice and numbers reported by the Sheriff's Office's Professional Standards Unit ("PSU"). It is not clear from the record or plaintiff's briefing to what or to whom PSU was reporting. The purpose for comparing the two sets of data is not clear from Schechter's deposition, other than to perform some kind of internal audit regarding sexual misconduct reporting data.

Plaintiff suggests the discrepancies are evidence defendants withheld reports and requests an adverse inference. Plaintiff did not move to compel any discovery, and defendants state that they produced all relevant reports after a reasonable search. Plaintiff does not suggest what reports are missing. Defendants state that the overall numbers of substantiated complaints is consistent, therefore there is no genuine issue of material fact. Without more, the evidence does not support an inference that defendants purposefully withheld any investigative reports or that any such reports ever existed.

2. Hinshaw's "Inaction"

Lieutenant Reed, an employee of the Jail, testified at his deposition that he did not recall Hinshaw

• personally conducting any instruction from 2009 to 2012 on proposed PREA standards;

• saying he wanted to gather personnel to study incidents to try to learn from them and prevent them in the future;• saying that he was concerned that unanswered inmate request forms were found in Evans's inbox;

• expressing concern about a substantiated allegation that Deputy Sauer intentionally withheld information regarding an inmate's complaint;

• expressing a concern regarding the matter of non-reporting by deputies on claims of sexual misconduct;

• sending out some request that he wanted to chart trends and patterns on whether sexual misconduct was taking place;

• requesting that somebody analyze trends or types of complaints and hours of day "and that sort of thing;"¹

• saying he was changing something about the way professional visitation would be allowed or monitored;

• saying or writing that too many deputies were withholding information; or

• calling a meeting after any incident and expressing the view that something needed to change afterwards.

Plaintiff asks the court to infer that because Reed did not recall Hinshaw discussing these topics with him, he must not have done so, or he must have been indifferent to the topics. Reed, however, did not testify that Hinshaw, the sheriff, would have had any reason to speak with him, a lieutenant, about any of the above topics. Therefore, the court will not infer Hinshaw was indifferent to the topics or did not discuss them with anyone.

III. Facts

The following facts are uncontroverted or construed in the light most favorable to the plaintiff, unless otherwise noted.²

A. The Parties

This case involves an alleged sexual assault and rape of plaintiff Bradley Kocsis at the Jail by former detention deputy David Kendall. The Sedgwick County sheriff operates the Jail and employs detention officers. The Sedgwick County sheriff is an elected position. Defendant Hinshaw was the sheriff from December 2008 until he retired and left that position in December 2012. As the sheriff, Hinshaw served at the top of the hierarchy for the Sedgwick County Adult Detention Facility. As such, Hinshaw was involved in the management of the staff and inmates, particularly the drafting, revision, approval, issuance, and enforcement of policies, procedures, rules, guidelines, practices, and customs. Hinshaw was also responsible for the hiring, firing, discipline, training, and supervision of jail guards and other staff.

From July 13, 2010 until September 4, 2013, plaintiff was an inmate at the Jail under the control and custody of Hinshaw.³ He was housed within the Jail in POD 2 from April 13 to 15, 2012. Plaintiff alleges Kendall raped plaintiff early in the morning on April 15, 2012 at the Jail in POD 2, cell 208. Kocsis also alleges Kendall had sexually assaulted him in the same POD and cell on April 14, 2012, but he claims no physical injury from the alleged April 14 incident.

Hinshaw hired defendant Kendall as a detention deputy in October of 2008. Kendall passed background investigations, including a psychological exam, before he was hired. In 2009, Kendallsuccessfully completed formal training, which consisted of eleven-week formal academy instruction and a six-week field training program. Detention deputies, including Kendall, were required and paid to attend continuing education and training yearly. Kendall attended in-house continuing training sessions while employed by Hinshaw.⁴ Kendall's formal job performance reviews with the sheriff overall were in the satisfactory range.⁵ Kendall's last evaluation was on or about October 20, 2011.

B. The Jail

At relevant times, inmates at the Jail were housed in several different PODs within the Jail, which provided different levels of security. In April of 2012, Hinshaw employed approximately 330 detention staff, including detention deputies for the daily operation of the Jail. The monthly average inmate population at the Jail was approximately 1,060 in 2012. However, in 2012, the total number of inmate bookings into the Jail was approximately 28,000.

C. Written Policies and Training

Written policies in place while Hinshaw was sheriff concerning the various responsibilities of Sedgwick County sheriff and employees of the Sedgwick County Sheriff's Department ("Sheriff's Office") included General Order 101.00, which outlined the philosophy and operational goals of the sheriff as follows:

A. Philosophy

1. To keep the facility secure and to safeguard our community and the lives of the staff, inmates and visitors.

2. To ensure that all inmates committed to our custody are provided with a safe and humane treatment consistent with applicable standards, laws, judicial decisions and community expectations.

3. To provide those essentials of human life, i.e., medical/mental health care, nutritious meals, clean

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