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Bean v. Reed

United States District Court, D. Maine

May 17, 2016

KENNETH REED, et al., Defendants


          John C. Nivison U.S. Magistrate Judge

         In this action, Plaintiff alleges Defendants violated his civil rights when they failed to protect him from an assault committed by another inmate at the Maine State Prison. The matter is before the Court on Defendants’ Second Motion for Summary Judgment (ECF No. 81). Following a review of the pleadings and the summary judgment filings, and after consideration of the parties’ arguments, I recommend the Court grant in part and deny in part Defendants’ motion.

         Procedural Background

         Through an earlier motion for summary judgment (ECF No. 18), Defendants Barnhart and Ponte maintained that Plaintiff had failed to exhaust the available administrative remedies. The Court denied the motion (ECF No. 38), and subsequently scheduled an evidentiary hearing on the exhaustion defense. Following an evidentiary hearing, the Court concluded that Plaintiff seeks redress for “decisions that led to him being placed in the Maine State Prison’s general population, ” and that such decisions “qualify as classification decisions” that are exempt from the Department’s Grievance Policy. (Order on Defendants’ Failure to Exhaust Defense at 13 - 14, ECF No. 69.) The Court thus denied Defendants’ request for judgment based on the exhaustion defense.

         On October 27, 2015, Plaintiff filed a stipulation of dismissal (ECF No. 75), through which stipulation he voluntarily dismissed the original defendants.[1] Plaintiff also filed a motion to amend his complaint (ECF No. 73), which the Court granted. (ECF No. 76.) In the amended complaint (ECF No. 74), Plaintiff asserts claims against Defendants Kurt Dyer, Brian Libby, Kenneth Reed, and Troy Ross. Defendants seek summary judgment on the amended complaint.


         Plaintiff contends that while he was incarcerated at the Maine State Prison on May 21, 2012, he was assaulted by two other prisoners, Dusty O’Brien and Leroy Parker. (Defendants’ Statement of Material Facts (“DSMF”) ¶ 1, ECF No. 82.) Before the assault, in April 2012, Plaintiff was assigned to the Maine Correctional Center. (Id. ¶ 2.) As part of the intake process at the Center, Plaintiff asked for and received an “Enemy Issue Comment Form.” On the form, he identified inmate Robert Fogg as a potential threat and wrote:

He was or still is my child’s mother’s boyfriend and I had a [sic] assault on her sister so he had me beat up in 2008 at the Maine State Prison by his “Moose” he was not at the prison yet but I was told if I came back that I would be hurt! The assault was not reported, I told the C/O I fell in the shower.

(Id. ¶ 3.) Plaintiff asserted that his life would be in danger at the prison and that Fogg could have someone else attack him. (Plaintiff’s Statement of Additional Material Facts (“PSAMF”) ¶¶ 1 - 3, ECF No. 88.) Plaintiff’s father also contacted the Center to report that Plaintiff would be in danger if placed in the Maine State Prison. (Id. ¶ 4.)

         Because Plaintiff did not receive medical treatment following the 2008 incident he reported on the form, and because he did not inform the prison staff that he had been assaulted, Plaintiff does not believe there is any record of the incident. (DMSF ¶ 4.) Plaintiff asserts that he did not make a report due to concerns for his safety. (Pl.’s Opposing Statement of Material Fact (“POSMF”) ¶ 4, ECF No. 88.)

         Pursuant to Department of Corrections’ procedures, the Department investigates enemy reports and decides whether a “keep separate” order is warranted. The procedure is designed to ensure that enemy reports are investigated, that staff are informed of the concern for prisoner safety, and that appropriate action is taken to protect the prisoner. (DSMF ¶ 5.)

         After an enemy report form is signed by the prisoner and the staff person to whom it is submitted, the form is immediately forwarded to the chief of security at the facility to which the prisoner is assigned. The chief of security then assigns a sergeant to investigate the matter. (Id. ¶ 6.) If the substance of the prisoner’s report is verified, the resident chief of security will approve the entry of an appropriate “keep separate” order. Keep separate orders are classified in three levels: Level I - the prisoners may not be assigned to the same unit; Level II - the prisoners may not be assigned to the same housing pod; and facility-wide - the prisoners may not be assigned to the same facility. A prisoner may also be placed in segregation on a temporary basis when required for his protection. (Id. ¶ 8.) According to Gary LaPlante, Director of Operations at the Maine Department of Corrections, “prisoners will often fabricate [enemy] complaints in an attempt to manipulate what facility or unit they are housed in, and it is important for the Department to maintain as much flexibility as possible as to where it can house a prisoner.” (Id. ¶ 7; LaPlante Affidavit ¶ 6, ECF No. 82-2.)

         Defendant Kenneth Reed, at the time a corrections sergeant at the Center, investigated Plaintiff’s enemy report. Defendant Reed interviewed Plaintiff, who confirmed the information contained in the enemy report form. Defendant Reed also checked CORIS (the Department’s prisoner data base) and determined that Plaintiff was a prisoner at the Maine State Prison in 2008 and that Fogg was currently incarcerated at the prison. (DSMF ¶ 9.) Defendant Reed was aware that Plaintiff had been classified as medium custody, that Fogg was being held in the close custody unit at the prison, and thus knew that they would be in separate areas of the prison 95% of the time. (Id. ¶ 11.)

         Because Defendant Reed was unable to find a record of the alleged 2008 assault or the injury, he recommended Plaintiff’s report be considered “unverified.” (Id. ¶ 10.) Defendant Reed made the recommendation to his superior, Defendant Brian Libby, who was the acting deputy superintendent of the Center at the time. (Id. ¶ 10.) In his recommendation, Defendant Reed stated that the report could not be verified and he recommended no restrictions. (PSAMF ¶¶ 7 - 8; Defendants’ Reply Statement ¶¶ 7 - 8, ECF NO. 91.) Defendant Libby made the ultimate determination as to whether the report was verified. (DSMF ¶ 10.)[2] The report was deemed not verified.

         Plaintiff was transferred to the Maine State Prison on May 17, 2012, and placed in A-pod of the medium custody unit. When he arrived, Plaintiff did not know anyone in A-pod. (Id. ¶ 13.) Plaintiff’s case worker, Defendant Kurt Dyer, Jr., met with Plaintiff on May 19 to conduct an initial intake interview. (Id. ¶ 14.) Before the interview, Defendant Dyer reviewed Plaintiff’s records in Plaintiff’s “unit file” and on CORIS. (Id. ¶ 15.) Defendant Reed’s investigative report was not in the unit file or on CORIS.[3] (Id.) Plaintiff’s file included one keep separate order, but the report involved a prisoner who was not at the prison at the time. (Id.)

         Generally, if a prisoner informs Defendant Dyer that he has an enemy issue, Defendant Dyer will log the information and determine whether CORIS contains any relevant information. Defendant Dyer will also alert his supervisor if the prisoner provides a specific name. He attempts to elicit from the prisoner the identity of the person in order to help protect the prisoner from that person. (Id. ¶ 16.)[4] If the prisoner identifies a specific threat, Defendant Dyer arranges to interview the prisoner with the sergeant; if they have a cell available in another unit, they will move the prisoner or, if not, place him in segregation for his safety. (Id. ¶ 17.)

         Plaintiff told Defendant Dyer of his concern about Fogg, and Plaintiff expressed surprise that his file and CORIS did not contain any information about the enemy investigation regarding Fogg. (PSAMF ¶ 18.) Plaintiff informed Defendant Dyer that after his arrival at the Prison, he was approached by prisoners in his pod who said they believed he was a sex offender, and said they were going to investigate whether he was a sex offender; Plaintiff told Defendant Dyer that he felt threatened. (Id. ¶ 18; DSAMF ¶ 10.) One of the prisoners who confronted Plaintiff was inmate O’Brien, one of Plaintiff’s assailants. (POSMF ¶ 19.) Plaintiff specifically identified inmate O’Brien when he expressed his concern to Defendant Dyer.[5] (Id.) When Defendant Dyer examined Plaintiff’s criminal history, he noted no evidence of a sex offense, but only a history of an assault. Plaintiff told Defendant Dyer that the assault was a sex offense, but the charge had been pled down. (DSMF ¶ 18.) Defendant Dyer told Plaintiff that if anyone looked up his record, they would see an assault, not a sex offense; he, therefore, advised Plaintiff not to characterize his offense as a sex offense. (Id.)

         Plaintiff also discussed with Defendant Dyer his concerns about Fogg, told Dyer that the person referred to as “moose” who assaulted him in 2008 had warned him not to return to the Maine State Prison, and informed Dyer that he had seen “moose” upon his arrival at the prison. (DSMF ¶ 20; POSMF ¶¶ 20, 22; Bean Deposition at 21, ECF No. 89.) Plaintiff told Defendant Dyer that he needed to be moved and that he was concerned about Fogg and his “boys.” (POSMF ¶ 20; PSAMF ¶ 12.) Defendant Dyer informed Plaintiff that everything was full at the time, and there was no place to put him. (DSMF ¶ 21; POSMF ¶ 19.)

         Defendant Dyer also advised Plaintiff that if he started to have issues with anyone, he should contact him, the pod officer, or the sergeant. Defendant Dyer informed the unit sergeant, Defendant Troy Ross, of his conversation with Plaintiff, and told him to keep an eye on Plaintiff Finally, Defendant Dyer advised the zone control officer of Plaintiff s concerns. The zone control officer is stationed in the unit and operates all doors and cameras. Defendant Dyer also was aware that Plaintiff could go to his cell and lock himself in if he felt threatened. The interview with Plaintiff occurred on May 19; Defendant Dyer was not scheduled to work on May 20 and 21. (DSMF ¶ 22; POSMF 22.)

         According to Defendant Dyer, even if the report of the keep separate investigation had been in the files Defendant Dyer reviewed, the circumstances would have resulted in a Level I order and thus Defendant Dyer would not have taken steps to move Plaintiff because Plaintiff and Fogg were not assigned to the same area of the prison.[6] (DSMF ¶¶ 21, 25.) Two days after Plaintiffs interview with Defendant Dyer, Plaintiff was assaulted in his cell by two prisoners, Dusty O’Brien and Leroy Parker, and sustained serious injuries. (Id. ¶ 23.)

         The Prison’s internal perimeter security team informed Defendant Dyer that the Correction Center was at fault for the incident because someone failed to report or put the enemy investigation report in the proper place. (PSAMF ¶ 21.) The team also told Defendant ...

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