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J.M. v. Management & Training Corp.

United States District Court, S.D. Mississippi, Northern Division

September 5, 2017

J.M. PLAINTIFF
v.
MANAGEMENT & TRAINING CORPORATION, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MANAGEMENT & TRAINING CORPORATION'S [81] MOTION FOR SUMMARY JUDGMENT, AND DENYING AS MOOT PLAINTIFF'S [111] SUPPLEMENTAL MOTION TO STRIKE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are the Motion for Summary Judgment [81] filed by Defendant Management & Training Corporation, and the Supplemental Motion to Strike [111] filed by Plaintiff J.M. These Motions are fully briefed. After due consideration of the Motions [81], [111], the record, and relevant legal authority, the Court finds that MTC's Motion for Summary Judgment [81] should be granted in part and denied in part, and that Plaintiff's Motion to Strike [111] should be denied as moot. Plaintiff's state-law claim against MTC for respondeat superior or vicarious liability will proceed to trial.

         I. BACKGROUND

         A. Relevant Factual Background

         Defendant Management & Training Corporation (“MTC”) is a private prison operator given a contract by the Mississippi Department of Corrections (“MDOC”) for the management and oversight of the Walnut Grove Correctional Facility (“WGCF”). Am. Comp. [15] at 2. MTC took over operation of WGCF from GEO Group, Inc. (“GEO”). The parties apparently do not dispute that MTC began operating WGCF on June 18, 2012. See MTC's Mem. [82] at 2; Pl.'s Mem. [92] at 11, 19. Marjorie Brown (“Ms. Brown”) is a regional vice president at MTC for Region 4, which includes Mississippi, and her responsibilities include supervision of activities within Region 4. Ms. Brown's Aff. [81-18] at 1.[1]

         During the time period relevant to this litigation, Plaintiff J.M. (“Plaintiff”) was an MDOC inmate incarcerated at WGCF. Plaintiff was housed, along with his cellmate R.H., in cell # 32 on Unit 8 Bravo (“Unit 8B”). See MTC's Mem. [82] at 3; Pl.'s Mem. [92] at 11. Plaintiff claims that while he was incarcerated at WGCF on March 7, 2015, Defendant D.H., [2] an MTC correctional officer, sexually assaulted Plaintiff and his cellmate. See Pl.'s Dep. [93] at 35-36.

At around 7:40 a.m. on March 7, 2015, offender R.H. placed a call to the PREA hotline which was available at Walnut Grove, where he reported that he had been sexually assaulted by D.H.. [sic] J.M. made a similar call at 7:52 a.m. At approximately 8:10 a.m., correctional officer Tene Wilson received a call from Mary Jones, J.M.'s sister, reporting that J.M. and R.H. had been sexually assaulted by a correctional officer the prior evening.

         MTC's Mem. [82] at 5-6; see also Pl.'s Mem. [92] at 12 (agreeing with these facts).

         1. The Events of March 6 - 7, 2015

         On the night of March 6 - 7, 2015, D.H. was assigned to work in Zone 8D of WGCF. See Mar. 6, 2015, Master Roster [93-6] at 1. Plaintiff was housed in Zone 8B. See Incident Detail [93-2] at 6. Sergeant Annie Morgan (“Sergeant Morgan”) was assigned to work in Zone 8B. Mar. 6, 2015, Master Roster [93-6] at 1. Captain Karen Moorehead (“Captain Moorehead”), who was the highest ranking officer at WGCF during the shift the night Plaintiff was allegedly sexually assaulted, testified in her deposition that the facility was short on staff that evening. Capt. Moorehead's Dep. [93-7] at 22, 37. The record reflects that six officers had called in sick, two officers were late, one officer was at training, and one was on extended sick leave. Mar. 6, 2015, Master Roster [93-6] at 1-2.

         Correctional officers were not allowed to change their assigned post without permission, Capt. Moorehead's Dep. [93-7] at 25-26, and supervisors would check that officers were following the post orders throughout the shift by making rounds or by telephoning the pod or tower officer, id. at 27-28. For officers to switch posts would be a violation of MTC's policy and procedure. Id. at 43. Captain Moorehead agreed that one reason for the checks by supervisors was to ensure that officers were at their assigned posts. Id. at 44.

         According to the post orders or roster, Sergeant Morgan was assigned to Zones 8B and 8C. Capt. Moorehead's Dep. [93-7] at 88. Captain Moorehead testified that if Sergeant Morgan needed assistance during the shift, she would have received it from another pod 8 correctional officer, such as D.H., id. at 89, and she would have had the authority to request D.H. to enter Zone 8B, id.

         The logbook reflects that on the night in question, Correctional Officer R. Harris (“Officer Harris”) took post in Zone 8D, where the post orders had D.H. scheduled to work. Id. at 50. Sergeant Morgan was assigned to Zone 8B, where Plaintiff was housed, but D.H. instead took post in that zone. Id. at 52. Captain Moorehead did not know why the change in staff had occurred. Id. at 54. Captain Moorehead testified that this could have been a mistake or a supervisor could have granted permission to change posts; otherwise, such a change would have been a violation of policies and procedures. Id. at 50-54.

         Officer Tiffany Gill (“Officer Gill”), the tower or pod control officer in Housing Unit 8 that night, testified that Unit 8 was understaffed, and based upon her reading of the roster for that evening, Officers Harris and D.H. were the only two assigned to the entire Unit. Officer Gill's Dep. [93-8] at 33-35, 66. Sergeant Morgan would not have actually taken a post in any of the Housing Unit 8 zones, so Officers Harris and D.H. would have had to cover more than one zone either together or separately, and according to Officer Gill, it would not have been out of the ordinary for D.H. to conduct a security check in Zone 8B. Id. at 34-35, 66, 68; see also Sergeant Morgan's Dep. [93-10] at 9 (“As a sergeant, . . . I just go through different units, and if they need help, I'll help them out.”).

         According to Captain Moorehead, every time a person entered or exited a housing unit, the pod officer should have documented the event in the logbook. Id. at 30-31. The logbook for the evening of March 6, 2015, does not reflect that supervisors performed security checks in Housing Unit 8, which meant either the checks did not occur, or if they did occur, they were not logged. Id. at 47-49. Captain Moorehead testified that either scenario would have been a violation of policies and procedures. Id. While failure to log was a violation of company policy, Captain Moorehead acknowledged it did occur on occasion. Id. at 87-88.

         Captain Moorehead testified that Officer Gill had the ability to remotely open the electronic locks on the cell doors, if her control panel was operating properly. Capt. Moorehead's Dep. [93-7] at 55-56. If the panel was functioning correctly, Officer Gill would also receive an alert if a cell door was opened because a light on a particular number cell should flash red. Id. at 56-57. Monitoring the lights was one of the duties of the control officer. Id. at 58.

         Officer Gill testified that if a cell door was opened, “that's if it's not rigged with something, a red light is going to come on in the tower right above that door.” Officer Gill's Dep. [93-8] at 16. “[U]nless they are serving paperwork or medical, issuing medication, or a captain or lieutenant, ” no door should be opened, as jailers were not permitted to enter a cell at night in a non-emergency situation. Id. at 16-17. If Officer Gill saw a red light, she was to call the officer to inquire why the cell door was open. Id. at 17. If Officer Gill did not receive a response, she was instructed to call the captain or the lieutenant. Id.

         Captain Moorehead testified that the lights in the control tower “didn't work all the time;” at times, the light would “just pop on and then it will pop off . . . .” Capt. Moorehead's Dep. [93-7] at 57. She agreed when asked that there were incidents reported at WGCF where correctional officers were improperly entering the cells of inmates, which is why supervisors conducted checks during shifts. Id. at 60. Officer Gill did not “recall anybody entering a cell on [her] watch” on the night of the incident. Officer Gill's Dep. [93-8] at 26. Plaintiff's cell at WGCF was “[r]ight in front of [Officer Gill]” in the control pod. Id. at 61.

         2. Subsequent prosecution of D.H.

         In April 2015, D.H. was charged with three counts of engaging in a sexual act with an inmate in violation of Mississippi Code § 97-3-104. See General Affidavits [93-2] at 18, 29, 31; Warrants [93-2] at 19, 30, 32.[3] MTC terminated D.H.'s employment on or about May 11, 2015. See Notice of Caution [81-14] at 2; Request to Terminate [81-14] at 3. On November 18, 2016, a grand jury in Leake County, Mississippi, returned an Indictment against D.H. for two counts of violating Mississippi Code § 97-3-104(1) as to J.M. and R.H. Indictment [93-4] at 1-2.[4]

         B. Procedural History

         On November 19, 2015, Plaintiff filed a Complaint [1] against MTC, asserting claims pursuant to 42 U.S.C. § 1983, along with claims under state law for negligent and/or grossly negligent hiring and supervision, and for respondeat superior. Compl. [1] at 4-6. With leave of Court, Plaintiff filed his First Amended Complaint [15] on April 4, 2016, against MTC and individual Defendant D.H. The First Amended Complaint [15] advances claims pursuant to 42 U.S.C. § 1983 against MTC and D.H. for violating his rights under Eighth and Fourteenth Amendments to the United States Constitution. As for MTC, Plaintiff claims his rights were violated due to MTC's policies, customs, and practices of failing to protect inmates, failing to train and supervise employees, and failing to adequately staff WGCF. Id. at 5. Plaintiff advances similar claims against MTC under Mississippi law. Id. at 4-6.

         1. MTC's Motion for Summary Judgment [81]

         MTC filed its Motion for Summary Judgment [81] on March 24, 2017, arguing that it is considered a municipality for purposes of constitutional analysis, and that it cannot be held vicariously liable for constitutional violations of its employees. MTC's Mem. [82] at 8. According to MTC, Plaintiff cannot show the existence an official policy or custom which promoted, authorized, or failed to prevent D.H. from sexually assaulting Plaintiff, defeating any constitutional claim against MTC. Id. at 8-10, 13. MTC points to the record evidence and states that “before March 7, 2015, no one - prisoner or employee - made any accusation against former correctional officer D.H. for any sexual assault.” Id. at 11. MTC maintains that it “had in place a multitude of policies and procedures to prevent the very incident that took place, ” that “it had no actual or constructive notice of any prior or potential sexual assaults by D.H.” Id. at 12.

         MTC contends that it is not vicariously liable for Plaintiff's state-law claims because D.H. was not acting in the course and scope of his employment with MTC, id. at 13-14, and because it “had in place policies and procedures to prevent its employees from engaging in sexual relationships with inmates, ” including “compliance with PREA [Prison Rape Elimination Act, 42 U.S.C. § 15601, et seq.] and other measures, ” id. at 15. MTC asserts that Plaintiff's allegations constitute criminal acts which are necessarily beyond the course and scope of D.H.'s employment with MTC. Id. at 16-17.

         Alternatively, MTC argues that Plaintiff's punitive damages claim should be dismissed, as there is no vicarious liability for punitive damages and the facts of this case do not demonstrate the sort of gross negligence, recklessness, or maliciousness on MTC's part that would merit an award of punitive damages. Id. at 22-24.

         Plaintiff responds that “WGCF has a particularly troublesome past and was the subject of a class action filed in 2010 by inmates alleging that the prison failed to protect inmates from harm, specifically sexual abuse by guards.” Pl.'s Mem. [92] at 10 (citing Depriest v. Walnut Grove Corr. Auth., 3:10-cv-663-CWR-FKB (S.D.Miss.)). Plaintiff cites the “Federal Consent Decree which was in effect from March 26, 2012 until the prison was closed in September 2016.” Id. Although MTC did not take over WGCF until June 2012, Plaintiff maintains that MTC was bound by the terms of the Consent Decree. Id.

         Plaintiff asserts that

MTC had unwritten policies, customs and practices of failing to adequately train, supervise, investigate, and discipline its correctional officers, failing to adequately staff the prison with trained and qualified guards, failing to prevent improper relationships between guards and inmates, and allowing the prison to be understaffed.

Id. at 13. According to Plaintiff, his “constitutional causes of action are essentially MTC's failure to protect inmates, including Plaintiff, and MTC's failure to train, supervise, and discipline its correctional officers.” Id. at 15. Plaintiff argues that Depriest demonstrates that “MTC was not only objectively aware of prior sexual incidents and other acts of violence against inmates, MTC subjectively was aware of a substantial risk of harm to inmates and disregarded that risk.” Id. at 17.

         Plaintiff agrees with MTC's legal argument on the state-law negligence claims that MTC cannot be liable under the doctrine of respondeat superior for D.H.'s alleged actions. Id. at 26. Instead, Plaintiff posits that MTC is liable under respondeat superior or vicarious liability “due to the negligent and grossly negligent actions of other MTC employees in not preventing the assault.” Id. (emphasis in original). “Plaintiff never sought to hold MTC liable for [D.H.]'s intentional acts, just the negligence of other MTC employees who failed to prevent the sexual assault.” Id. Plaintiff claims that, on the night he was allegedly assaulted, Housing Unit 8 was understaffed, supervisors failed to make rounds after midnight in violation of MTC policy, and D.H. and another employee switched assignments in violation of policy. Id. at 29-30.

         “Plaintiff concedes that there is no evidence to show that MTC negligently hired or retained [D.H.]; however, there is sufficient evidence to show that MTC negligently supervised him.” Id. at 30-31. Plaintiff maintains that, while the issue of punitive damages is not yet ripe for consideration, punitive damages are appropriate against MTC pursuant to Mississippi Code § 11-1-65. Id. at 33-34.

         2. Plaintiff's Supplemental Motion to Strike [111]

         In support of its Motion for Summary Judgment, MTC submitted the Affidavit of Marjorie Brown [81-18], which discussed MTC's policies and training of its officers, including D.H. On April 21, 2017, Plaintiff filed a Motion [89] to Strike this Affidavit or, in the Alternative, to Depose Marjorie Brown.

         On June 5, 2017, the Court granted Plaintiff's Motion [89] in part and permitted Plaintiff to depose Marjorie Brown on the substance of her Affidavit, but declined to strike it. Order [109] at 8-9. After Ms. Brown was deposed, Plaintiff filed his Supplemental Motion [111] to Strike paragraphs 5 and 10 of the Affidavit.

         According to Plaintiff, “Ms. Brown's deposition makes it clear that she lacks the personal knowledge required in order for her to testify about the type of training or quality of training purportedly given to [D.H.] or any other MTC employee.” Pl.'s Mem. [112] at 1. Plaintiff seeks to strike paragraphs 5 and 10 of Ms. Brown's Affidavit “to the extent she attempts to describe [D.H.]'s training or the training of any other MTC employee, ” because Ms. Brown purportedly lacks first-hand knowledge to give this testimony. Id. at 3.

         MTC responds that Ms. Brown's Affidavit “merely confirm[s] what is in the [business] records, ” which she authenticated pursuant to Federal Rule of Evidence 803, and that any objection goes to the weight rather than the admissibility of the statements. MTC's Mem. [114] at 1-2. “Brown's affidavit - including the portions Plaintiff seeks to strike - summarized voluminous business records, including MTC policies and procedures and [D.H.]'s personnel records.” Id. at 3. According to MTC, “[a]s a corporate Vice President, Ms. Brown is competent to review business records and give testimony as to the training [D.H.] received and the quality of that training.” Id.

         C. Depriest

         On November 16, 2010, certain plaintiffs filed a “class action . . . on behalf of the teenagers and young men who [were] imprisoned in the Walnut Grove Youth Correctional Facility (‘WGYCF') . . . .” Depriest v. Walnut Grove Correctional Authority, No. 3:10cv663-CWR-FKB, Compl. [1] at 2 (S.D.Miss. Nov. 16, 2010).[5] At the time, GEO Group, Inc., managed the WGYCF. Id. at 7. The Depriest complaint charged that “staff members abuse[d] their power by engaging in sexual relationships with the youth in their care, ” id. at 2, and that “[s]ome correctional officers and nurses have sex with youth at WGYCF” in violation of Mississippi Code § 97-3-104, id. at 14.

         On March 20, 2012, the United States Department of Justice, Civil Rights Division (the “DOJ”), issued a report on its investigation of the WGYCF. See Depriest, No. 3:10cv663-CWR-FKB, Report [74-1] at 4-47. The DOJ “found that staff sexual misconduct with youth in their custody occurred on a monthly basis, at a minimum, ” and that “WGYCF is aware of the pervasiveness of staff sexual misconduct, but has failed to take any steps to prevent it beyond terminating staff caught in the act.” Id. at 10.

         On March 26, 2012, the Court entered an Order Approving Settlement with an attached executed Consent Decree, which required MDOC to “ensure that there are sufficient numbers of adequately trained direct care and supervisory staff, and sufficient numbers of professional staff.” Depriest, No. 3:10cv663-CWR-FKB, Order [75] at 1-8, Consent Decree [75-3] at 1, 15.[6]

         Following entry of the Consent Decree, MDOC contracted with MTC for the operation of WGCF commencing in June 2012. Depriest, No. 3:10cv663-CWR-FKB, Order [170] at 5 n.1.[7] In a June 11, 2015, Order, the Court did not mention any specific instances of sexual assault having occurred since MTC began operating the prison, other than the one that is the basis of the present lawsuit. See Id. at 21 n.19. The Court did, however, find that the evidence before it

paints a picture of a facility struggling with disorder, periodic mayhem, and staff ineptitude which leads to perpetual danger to the inmates and staff. The dangers that inmates face are not simply limited to assaults by other inmates but also from the guards. The Monitors' Reports validate that the sometimes chaotic conditions are more than mere snapshots of disruption, as they span a time period of almost two years. Each of these reports, with the exception of the third and most recent, conveys findings of noncompliance with the core requirement of “reasonably safe living conditions.”

Id. at 12 (emphasis added).[8]

         The Court, however, recognized the remedial measures taken by MTC to address some of the problems, including removal of the “close custody inmate population, ” replacement of security cameras, decreased inmate population, and the installation of a body scanner and a perimeter netting. Id. at 17-18. MTC had made “significant advancements with staffing, ” and although maintaining a sufficient number of adequately trained staff was an ongoing problem at the facility, there had been “a significant improvement in the number of assaults that occur at the facility.” Id. at 18. On September 15, 2016, MDOC closed Walnut Grove, which rendered the Consent Decree inoperative. Depriest v. Walnut Grove Correctional Authority, No. 15-60488, Op. at 2 (5th Cir. Sept. 27, 2016).

         II. DISCUSSION

         A. Plaintiff's Supplemental Motion to Strike [111] is moot.

         Based upon a review of Ms. Brown's Affidavit, MTC's Motion for Summary Judgment, and the record as a whole, the Court finds that the result would not change regardless of whether the Court considers paragraphs 5 and 10 of Ms. Brown's Affidavit. Plaintiff's Supplemental Motion to Strike [111] will be denied as moot.

         B. MTC's Motion for Summary Judgment should be granted ...


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