Russell v. Scott

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Justin Russell, Plaintiff, v. Jason Scott, Defendant.

Civil Action No. 5:20-cv-184

United States District Court, D. Vermont

April 10, 2024

REPORT AND RECOMMENDATION (DOC. 48)

Kevin J. Doyle, United States Magistrate Judge

Plaintiff Justin Russell, formerly a pretrial detainee at the Southern State Correctional Facility (SSCF), brings this lawsuit against Defendant Jason Scott, a corrections officer at SSCF during the relevant period. Russell alleges that Scott: (1) sexually assaulted him while Scott was overseeing a medication call at SSCF, (2) slammed a door on Russell after the sexual assault, and (3) falsely accused Russell of diverting medication in an attempt to cover up the assault. Russell sues Scott under 42 U.S.C. § 1983 for violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution, and supplemental claims of intentional infliction of emotional distress (IIED) malicious prosecution, and assault under state law.

Scott has filed a Motion for Summary Judgment, requesting that the Court dismiss all claims against him. (Doc. 48.) For the reasons explained below, I recommend granting the Motion with respect to the Eighth Amendment claim, the Fourteenth Amendment excessive force claim, and the IIED and malicious prosecution claims. I recommend that the Motion be denied as to the constitutional sexual assault claim. In addition, I recommend that the Court permit amendment of the Complaint to substitute a battery claim for the assault claim. If the Court permits the amendment, I also recommend that the Motion for Summary Judgment be denied as to the battery claim.

Background Facts and Procedure

The following facts are principally derived from the parties' Statements of Undisputed Material Facts and the documents referenced therein. (See Docs. 48-1, 49-1.) Where the facts conflict, the Court draws all factual inferences in favor of Russell, as the non-moving party, in accordance with the applicable standard on summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (holding that on summary judgment “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”).

In February 2019, Russell was a pretrial detainee in the custody of the Vermont Department of Corrections (DOC) at SSCF in Springfield, Vermont. He was participating in a medication assisted treatment (MAT) program, which involved his regular receipt of Suboxone during scheduled “medication pass[es]”1 at the facility. (Doc. 48-1 at 2 ¶¶ 7-8.) On the morning of February 11, Scott was the SSCF corrections officer on duty during Russell's medication pass. When Russell entered the room where the medication pass was to occur, Scott asked Russell to remove his hat from his head per SSCF policy, and Russell complied. A nurse administered Suboxone to Russell, and Scott confirmed that the medication was under Russell's tongue. Pursuant to prison policy, Russell was then seated for ten minutes to allow the Suboxone to dissolve. According to Scott, as Russell waited, another inmate who had just received his medication walked in front of Russell and stopped for a moment, preventing Scott from seeing either the inmate's or Russell's face.^[1] (Id. ¶ 13.) Russell contests this fact, stating that it “is complete utter crap” that “somebody was . . . in [Scott's] way of seeing me” during the medication pass. (Doc. 49-4 (Ex. 2), Russell cont'd depo., at 100:20-23.) Notwithstanding Russell's disagreement with this fact, Scott claims that his momentary inability to see Russell and the other inmate's faces during the medication pass caused him to suspect that Russell was attempting to smuggle Suboxone into SSCF. (Doc. 48-5 (Ex. C), Scott depo., at 16:1-19.)

After waiting the required ten minutes, Russell stood up for his mouth check, placing his hat in the waistband of his sweatpants. Scott conducted the mouth check, confirming that Russell's mouth appeared to be clear of medication. According to Scott, he then removed the hat from Russell's waistband and told him to return to his unit. (Doc. 48-1 at 3, ¶ 17.) Scott further claims that, after telling Russell to return to his unit, he inspected Russell's hat and found what appeared to be crushed medication in it, resulting in Scott filing an Incident Disciplinary Report against Russell for misuse of prescribed medication. (Id. ¶¶ 18, 21; see Doc. 48-6 (Ex. D), 2/11/19 Incident Disciplinary Report.) After a hearing a few weeks later, Russell was found not guilty based on Scott's failure to retain chain of custody over the alleged contraband in Russell's hat. (See Doc. 48-12 (Ex. J), 2/19/19 Incident Hearing Report, at 2.)

Russell's version of the facts, from after the point of Scott conducting the final mouth check of Russell, is quite different. First, Russell denies that there was any contraband in his hat, arguing that Scott filed the Incident Disciplinary Report to try to cover up his own unlawful conduct. (Doc. 49-1 at 3-4, ¶¶ 14, 18.) Further, Russell claims that after completing his final mouth check, Scott told Russell to stop. When Russell stopped and turned around to face Scott, Scott grabbed the hat that Russell had tucked into his waistband, and then-in plain view of at least two other inmates-reached into Russell's pants and grabbed, squeezed, and twisted Russell's penis.^[2] (Id. at 8, ¶ 35.) According to Russell's version of events, Scott then told Russell to give him the hat, despite Scott already having the hat in his possession. (Id.) Scott's handling of Russell's penis in front of other inmates caused Russell a great deal of pain and embarrassment, and he reacted by quickly pulling away from Scott, and yelling and cursing at Scott in a hostile manner. According to Russell, as he walked back towards his unit in compliance with Scott's order, Scott “approached [Russell], his face contorted with anger, and stated ‘How'd you like that, mother fucker?'”^[3] (Id. at 9, ¶ 36.) Scott then slammed a heavy metal door on Russell's right arm, injuring Russell.

Russell claims that he had a rug burn and a red mark on his penis for about a week after the sexual assault, and then experienced scabbing on his penis. He further contends that he had a big bruise and broken blood vessels on his arm as a result of the door-slamming incident. Though Russell testified at his deposition that he asked to see a nurse on the date of the alleged sexual assault and door-slamming incident (see id. at 7, ¶ 28), he did not receive any medical attention for his physical injuries, and they resolved within about a week.

On November 9, 2020, Russell filed the Complaint in this action, alleging violations of his constitutional rights under the Eighth and Fourteenth Amendments, IIED, malicious prosecution, and assault. (Doc. 1.) The Complaint seeks compensatory and punitive damages, along with attorney fees, costs, and interest. (Id. at 6.)

On April 28, 2023, Scott filed a Motion for Summary Judgment (Doc. 48), a Statement of Undisputed Material Facts (Doc. 48-1) and supporting evidence (Docs. 48-3 through 48-17). Scott seeks dismissal of all claims, arguing that they fail as a matter of law for the following reasons: (a) Russell cannot establish a constitutional claim because Scott's conduct was not sufficiently serious or objectively unreasonable, and Russell's injuries were de minimis; (b) Russell cannot establish a claim for IIED because Scott's conduct was not extreme and outrageous, and there is no evidence that Russell suffered severe emotional distress; (c) Russell cannot establish a claim for malicious prosecution because it is undisputed that Scott believed Russell was attempting to divert contraband at SSCF; (d) Russell cannot establish a claim for assault because Scott did not intend to harm him, and the alleged harm was incidental to Scott's duty to prevent misuse of medication and maintain order at a prison facility; and (e) Scott is entitled to qualified immunity on all claims because the alleged conduct did not violate a clearly established right, and even if it did, it was objectively reasonable for Scott to believe that his actions did not violate any clearly established right.

Russell filed an Opposition to Scott's Motion for Summary Judgment (Doc. 49), and a Statement of Disputed Material Facts (Doc. 49-1) and supporting evidence (Docs. 49-3 through 49-9). Russell argues that the Motion fails because he has denied, both at his deposition and in his verified Complaint, that he was attempting to divert contraband at SSCF. Therefore, in his view there is a triable issue of material fact precluding summary judgment. (Doc. 49 at 1.) Moreover, Russell contends that, construing the facts in his favor as required “there is no basis to conclude” that Scott's act of grabbing, squeezing, and twisting Russell's penis was done in furtherance of a legitimate search. (Id. at 10.) According to Russell, it is clearly established in this Circuit that no amount of gratuitous or sexually motivated fondling of an inmate's genitals is permitted by the Constitution, and therefore Scott is not entitled to qualified immunity. (Id.) Regarding the state-law claims of IIED and malicious prosecution, Russell asserts that there are issues of material fact that must be resolved by a jury at trial. (Id. at 11-12.) Finally, Russell abandons his assault claim, requesting leave to amend the Complaint to “rename” that claim as a claim for battery, which he contends survives summary judgment. (Id. at 12.)

In his Reply to Russell's Opposition, Scott contends that Russell misconstrues Second Circuit caselaw regarding the standard for a sexual abuse claim under the Fourteenth Amendment, and further contends that Russell fails to identify any...