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Ohio Prison Supervisors Possibly Liable for Employing Known Racist Guard

The Sixth Circuit Court of Appeals has reversed a district court's grant of summary judgment to Ohio prison officials and remanded for trial a case involving alleged official indifference to the actions of a known racist guard. The appeals court held that, given the number of complaints against the guard and the fact pattern of his racist behavior against African-American prisoners and staff, prison officials could be held liable for maintaining his employment.

David Scott was a white prison guard at the Southern Ohio Correctional Facility (SOCF) and the nephew of a SOCF guard taken hostage in the 1993 Easter Sunday SOCF riot. He was employed at SOCF from December 16, 1993, until June 26, 1996, when he was fired for a May 16, 1996, incident in which he told a racist joke over the prison intercom system. In that time period, according to case records, approximately forty complaints or investigations against Scott involving verbal abuse, racial slurs, filing of false reports, unexplained injury of prisoners, and excessive use of force were filed.

Scott was never disciplined for any of these incidents until he was fired for the joke incident, despite a finding by an institutional inspector to the warden that Scott's behavior posed a risk of someone getting hurt.

The present case arose from separate incidents involving Scott. On Easter Sunday 1996, Scott refused to serve breakfast to African-American prisoner Greg Curry due to Curry's alleged participation in the 1993 riot. Other prisoners then pelted Scott with food, who threatened Curry with retaliation. On April 11, 1996, Curry claimed that Scott beat him down without provocation, while he was handcuffed and shackled. On April 26, 1996, Scott allegedly assaulted eight African-American prisoners who were handcuffed, shackled, and chained together. Scott did not assault a Caucasian prisoner in the chain. One guard tried unsuccessfully to stop Scott's assault, but another guard, Darren Howard, stood by doing nothing.

Curry began filing grievances to exhaust administrative remedies and filed suit under 42 U.S.C. §1983 before his remedies were fully exhausted. Prior to an amended complaint, however, Curry finished his administrative remedies and submitted proof of exhaustion of remedies against Scott, several of Scott's supervisors, two deputy wardens, and then-warden Terry Collins. The other prisoner plaintiffs filed prior to exhaustion of remedies, then finished exhausting their remedies, but failed to submit proof of exhaustion.

The district court dismissed all claims against Howard. Summary judgment was also granted in favor of all defendants except Scott. Also, all plaintiffs except Curry were dismissed for failure to exhaust remedies. Three plaintiffs submitted a Civil Rule 60 motion for reconsideration, submitting proof that they had exhausted remedies prior to dismissal. The district court refused to reconsider.

On appeal, the Sixth Circuit held that dismissal of defendant Howard was not erroneous, as he had never been the subject of any grievance or administrative appeal. Contrary to defendants' assertion, it was also not error for the court to consider Curry's claims exhausted for purposes of the PLRA. The court held that the exhaustion requirement in 42 U.S.C. §1997e "does not impose a jurisdictional bar to federal jurisdiction," but it is mandatory. Ideally, Curry should have exhausted his remedies prior to filing his original complaint.

Providing proof of exhaustion prior to filing his amended complaint, however, was not error under the circumstances of the case. The appeals court criticized the three plaintiffs who had exhausted their administrative remedies but failed to disclose such to the court until after dismissal. The Court discussed the requirements of exhaustion under the PLRA and the nature and necessity of "due diligence" in a civil suit. The dismissed plaintiffs simply had no reasonable excuse for not disclosing proof of exhaustion of administrative remedies.

The appeals court upheld the district court's denial of summary judgment to Scott but reversed summary judgment in favor of Scott's supervisors. In Scott's case, the sharp difference between his version of events and Curry's version of events on April 11, 1996, constituted a material issue of fact precluding summary judgment. In the case of the supervisor defendants, the appeals court pointed to the record of complaints and use of force reports against Scott.

The district court, in granting summary judgment, said that "defendants should have perceived a risk but did not." This was error according to the appeals court. The number of filed reports and the racist pattern of Scott's behavior disclosed by these reports were a material issue of fact that must be tried. The Court reversed and remanded the case for trial. See: Curry v. Scott , 249 F.3d 509 (6th Cir. 2001).

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Related legal case

Curry v. Scott

[67] The claim against Howard, however, is a separate claim, against a separate individual, premised on a separate and independent legal theory. Because Howard was not mentioned in the prisoners' grievances, SOCF did not know that the prisoners specifically had a grievance against him, so SOCF had no reason to pursue any claim or disciplinary action against Howard based on the prisoners' official complaints. As this Court stated in Freeman v. Francis, 196 F.3d at 644, "the importance of using the prison grievance process [is] to alert prison officials to problems." The plaintiffs' grievances may have alerted SOCF to problems with Scott, but they did not reasonably alert SOCF to problems with Howard.

[68] The requirement that a prisoner file a grievance against the person he ultimately seeks to sue does not impose a heightened pleading requirement upon would-be §1983 plaintiffs. It only assures, as envisioned under the PLRA, that the prison administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court. Thus, we affirm the district court's decision to dismiss the plaintiffs' claims against Howard.

[69] D.

[70] Finally, plaintiffs contend it was error to dismiss the supervisory employees on summary judgment, because issues of material fact preclude their dismissal. Plaintiffs contend that Scott's employment record contained sufficient references to his propensity to discriminate against and abuse African-American prisoners to create an issue of fact regarding whether the supervisors, aware of Scott's long and "deplorable" record, were deliberately indifferent to the risk Scott posed of using excessive force against African-American inmates.

[71] As described above, plaintiffs proffer a long record of complaints and incident reports filed against Scott. As the district court noted, the many complaints, incident reports, and Use of Force investigations paint a picture of a "reprehensible" prison guard whose infractions and alleged infractions appeared aimed at a particular class of targets or victims - all African-Americans. In addition to Scott's disciplinary record, the district court also had before it an internal memorandum from an institutional inspector to defendant Collins, suggesting that Scott be disciplined before that someone got hurt by his conduct.

[72] We review de novo the district court's order granting summary judgment. Avery v. King, 110 F.3d 12, 13 (6th Cir. 1997). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). Summary judgment is appropriate only when the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v Catrett, 477 U.S. 317, 322 (1986).

[73] We find that, in this case, issues of material fact preclude summary judgment in defendants' favor. Specifically, we conclude that a trier of fact could find, based on the evidence submitted, that the supervisory defendants actually knew Curry posed a substantial risk of serious harm to prison inmates.

[74] In its prohibition of "cruel and unusual punishments," the Eighth Amendment places restraints on prison officials, directing that they may not use excessive physical force against prisoners and must also "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to a prisoner, plaintiffs must show that the prison officials acted with "deliberate indifference" to a substantial risk that Scott would cause prisoners serious harm. Farmer v. Brennan, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 32, (1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997); Street v. Corrections Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996); Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 79 (6th Cir.1995).*fn6

[75] The concept of "deliberate indifference" encompasses both a subjective and an objective component. The objective component requires that the deprivation alleged be "sufficiently serious." Farmer, 511 U.S. at 834. Thus, "for a claim . . . based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. We agree with the district court that the harm alleged by all plaintiffs, being beaten without cause by a prison guard, is sufficiently serious to fulfill the objective component of this definition.

[76] To satisfy the subjective component, plaintiffs must show that the prison officials had "a sufficiently culpable state of mind." Id. (citation omitted). A "sufficiently culpable state of mind" is one in which "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. A prison official can be liable if he "disregards that risk by failing to take reasonable measures to abate it." Id. at 848.

[77] Plaintiffs may prove that the defendants had actual knowledge of a substantial risk "in the usual ways," according to the Supreme Court. See id. at 842. That is, a factfinder may infer actual knowledge through circumstantial evidence, or "may conclude a prison official knew of a substantial risk from the very fact that the risk was obvious." Id.

[78] For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was "longstanding, pervasive, well- documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk." Farmer v. Brennan, 511 U.S. at 842. (1994).

[79] Furthermore, "actual knowledge" does not require that a prison official know a prisoner would, with certainty, be harmed, or that a particular prisoner would be harmed in a certain way. "An Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842 ; see Price, 65 F.3d at 347 ("Farmer established that a risk of danger particular to the individual was not required...."); Street, 102 F.3d at 815.*fn7 This Court has emphasized that, when evaluating this standard, "we are not allowed . . . to 'weigh the evidence' or 'evaluate the credibility of witnesses' when reviewing a motion for judgment as a matter of law." See Woods, 110 F.3d at 1222.

[80] The district court found that Scott's record was "deplorable" and his verbal abuse of African-Americans "reprehensible." Despite this, the district court concluded there was insufficient evidence from which to conclude that the prison officials were deliberately indifferent to Scott's potential to cause substantial harm to prison inmates. The district court stated that, since "Scott's employment record shows no incidents of unprovoked assaults on inmates," there was no evidence that the supervisors could have known that Scott would use excessive force on prison inmates. The court also stated it "appeared" that the internal memorandum expressing concern that Scott's behavior may endanger inmates was less concerned with Scott's use of excessive force than the possibility that his racist behavior could "spark another riot." The district court, therefore, concluded that "this appears to be a situation in which the supervisory Defendants should have perceived a risk but [in fact] did not."

[81] Because Scott's employment record contains a great deal of evidence concerning his discrimination against African-Americans and his propensity to use force against inmates and cause injury to them, we believe there exists a genuine dispute over a material fact - that is, defendants' actual knowledge. The district court resolved this dispute itself when it concluded the "defendants should have perceived a risk but did not." That resolution, more appropriately, is one that should have been left to the trier of fact. Given the substance of Scott's employment record, and the affidavits taken of Scott's fellow employees and supervisors, a question of fact exists as to whether Scott's employment record disclosed that his continued employment posed a substantial risk of serious harm to prison inmates. See, e.g., Woods, 110 F.3d at 1224 (quoting Street, 102 F.3d 810 (6th Cir.1996)) ("summary judgment is inappropriate when 'there are issues of fact as to whether [a defendant in a §1983/Eighth Amendment case] was 'aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]' and whether he actually 'dr[e]w the inference'"). See also Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 84 (6th Cir. 1995) (finding summary judgment inappropriate because there was a factual dispute regarding the warden's knowledge of, inter alia, existence of "widespread sexual assaults" and the likelihood that "smaller, youthful prisoners were more vulnerable to attack than others;" knowledge that this particular prisoner would be attacked was not necessary).

[82] As the Supreme Court stated, "a subjective approach to deliberate indifference does not require a prisoner seeking a remedy for unsafe conditions to await a tragic event such as an actual assault before obtaining relief." Farmer, 511 U.S. at 845. Thus, to prove that the supervisors actually knew that Scott presented a substantial risk of harm to inmates, the plaintiffs need not prove, as the district court appears to conclude, that Scott was found to have used excessive force on another inmate, and that prison officials thereafter left Scott free to assault inmates. Plaintiffs only need show that an issue of material fact exists as to whether the supervisory defendants were aware that Scott posed a risk of substantial injury to the inmates and were deliberately indifferent to that risk. Plaintiffs have done so by proffering Scott's troubling employment record, the internal memorandum putting Scott's supervisors on notice of the implications of his history, and the sworn statements of Scott's co-workers and other supervisors regarding his conduct and attitude.

[83] Defendants argue that no finder of fact could conclude they were deliberately indifferent, because they took steps to deal with Scott's behavior within the confines of the collective bargaining agreement -they dealt with each grievance or complaint individually, in an appropriate manner. This argument overlooks plaintiffs' assertion that the defendants ignored the vast number of complaints and grievances filed against Scott, and the pattern of racial harassment that is shown in these complaints. The argument that all of these trees do not add up to a forest, but should simply be viewed as a collection of trees, may contain merit at trial before a finder of fact, but it is unavailing at the summary judgment stage.*fn8

[84] Thus, we (1) AFFIRM the district court's denial of defendants' motion to dismiss the claims of Curry, Allen, Brooks, Cannon, Wells, and Williams on exhaustion grounds; (2) AFFIRM the district court's dismissal of all claims asserted by Chisolm, King, and Shorter, without prejudice, for failure to exhaust administrative remedies, and also AFFIRM the district court's denial of the Rule 60(b) motion asking for reconsideration of that dismissal; (3) AFFIRM the district court's dismissal of all claims by all plaintiffs against Howard; (4) REVERSE the district court's grant of summary judgment to Collins, Hieneman, Walker, Adkins, Newsome, and Redwood; and (5) REMAND this case for trial.*fn9

Opinion Footnotes

[85] *fn1 The Honorable Kathleen O'Malley, United States District Judge for the Northern District of Ohio, sitting by designation.

[86] *fn2 Scott began work just eight months after the racially-charged Easter Sunday riot that occurred in April of that year. Scott's uncle, a corrections officer, was taken hostage by prisoners for eleven days during that riot.

[87] *fn3 We note, however, that, while it is true we have concluded §1997e does not impose a jurisdictional bar to federal jurisdiction, we have also concluded that the obligation to exhaust administrative remedies before resort to federal court is a mandatory one. See Wyatt v. Leonard, 193 F.3d at 879 (holding that, though not jurisdictional, the requirement that administrative remedies be exhausted remains mandatory); Clark v. Beebe, 1999 WL 993979 (6th Cir. Oct. 21, 1999) ("[t]he new exhaustion requirement, while not jurisdictional, is mandatory and must be addressed in the first instance by the district court in all prisoner civil rights cases -- before the merits of the case are addressed"). And, this Court has not hesitated to enforce §1997e, even where such enforcement results in the dismissal of otherwise properly stated claims. See Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999) (dismissing case for failure to exhaust). Thus, although Toombs predates a number of developments in the law relating to §1997e, its directive that a court should consider compliance with the mandates of §1997e, even absent a proper invocation of those mandates by a party-defendant, appears to remain viable.

[88] *fn4 We recognize that these circumstances are not likely to be repeated in this Court. It is only because the events at issue occurred so long ago (i.e., near passage of the Act and before this Court's adoption of processes for compliance with the Act) that the situation presents itself now. It is unlikely subsequent plaintiffs would find themselves in these unique circumstances.

[89] *fn5 It is unclear why these plaintiffs, or at least Chisolm and Shorter, did not simply file a new action at that point in time.

[90] *fn6 Prison officials are held liable for exposing prisoners to excessive force at the hands of prison employees under the same "deliberate indifference" standard that Farmer v. Brennan employs for prison officials who fail to protect inmates from violence by others. See Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1999).

[91] *fn7 The defendants urge this Court to adopt a rule that, to establish deliberate indifference, a plaintiff must show that the "officer was highly likely to inflict the particular injury suffered by the plaintiff," citing Bryan County Commissioners v. Brown, 520 U.S. 397, 412 (1997), which held that, under Monell v. Department of Soc. Servs., 436 U.S. 658 (1978), a single hiring decision by a policy-making official will not trigger municipal liability unless the plaintiff can show that the official was "deliberately indifferent" - that is, in light of the employee's record, excessive force would have been a plainly obvious consequence of the hiring decision. Besides Brown, defendants also rely on Gebser v. Lago Vista School District, 524 U.S. 274, 293 (1998), which held that a school district is not liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference. These cases, however, are inapposite; they do not deal with Eighth Amendment claims for cruel and unusual punishment, and, instead, address entirely different lines of precedent, with entirely different sets of preconditions and concerns. Although these cases all use the phrase "deliberate indifference," the standards are not the same and are non-transferable. As the Supreme Court stated in Farmer v. Brennan, "having stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course." 511 U.S. at 833. Thus, the standards governing Eighth Amendment claims for excessive force are unique and must remain so.

[92] *fn8 This argument also ignores the fact that plaintiffs dispute the claim that Scott's individual grievances were handled in an appropriate fashion.

[93] *fn9 The district court did not differentiate among the supervisory defendants when granting summary judgment in their favor. The parties, similarly, treat these defendants collectively on appeal. While we doubt that the evidence of knowledge regarding Scott's background and propensities is uniform with respect to these defendants, there is nothing on the record before us which would either confirm or deny that suspicion. Because the trial court and the parties have treated these defendants as a collective whole, so must we for purposes of this analysis.