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Muhammad v. Busboom

United States District Court, D. Nebraska

January 23, 2017

IMAN MUHAMMAD, Plaintiff,
v.
SCOTT BUSBOOM, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff, Iman Muhammad, formerly known as Daryle M. Duncan, alleges that while incarcerated at the Tecumseh State Correctional Institution, he was sexually harassed and assaulted by two female staff members for a period of two years, as a result of which he requires mental health counseling and medication. Plaintiff claims an associate warden, Defendant, Scott Busboom, was aware the two staff members had engaged in inappropriate contact with other inmates but had not intervened. Liberally construed, Muhammad's second amended complaint states a claim for relief arising under the Eighth Amendment, but Busboom has moved for summary judgment on the basis of qualified immunity. Muhammad has not responded to Busboom's motion, which will be granted.

         Also pending before the court are (1) a motion to compel discovery that Muhammad filed about one week before Busboom filed the motion for summary judgment[1] and (2) a motion to suspend progression order deadlines that Busboom filed after the summary judgment motion. Muhammad's motion to compel will be denied for failure to comply with the court's local rules. See NECivR 7.1(i) (“[T]his court only considers a discovery motion in which the moving party, in the written motion, shows that after personal consultation with opposing parties and sincere attempts to resolve differences, the parties cannot reach an accord.”).[2] Busboom's motion to suspend progression order deadlines is rendered moot by the granting of his motion for summary judgment, and therefore will be denied without prejudice.

         I. STATEMENT OF MATERIAL FACTS

         In accordance with the court's local rules, Busboom's brief includes “a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). Because Muhammad has not responded to the motion for summary judgment, Busboom's statement of material facts is considered admitted. See NECivR 56.1(b)(1). Thus, the following facts, which are properly referenced to filed exhibits, are accepted as true:

1. Busboom was employed as an Associate Warden with the Nebraska Department of Correctional Services (NDCS) assigned to the Tecumseh State Correctional Institution (TSCI) from April 9, 2012 to May 29, 2016. (Ex. 1 [Filing No. 32-1], ¶ 4)
2. Busboom has been the TSCI Deputy Warden since May 30, 2016. (Ex. 1, ¶ 5)
3. On July 16, 2015, NDCS Corporal Marsha Hume (Hume) was assigned to the Skilled Nursing Facility at the Tecumseh State Correctional Institution (TSCI). On that date, Hume was observed by a NDCS Nurse exchanging a kiss with Muhammad. (Ex. 2 [Filing No. 32-2], ¶ 5)
4. On July 17, 2015, NDCS Captain Christopher Connelly (Connelly) spoke with Muhammad. Muhammad said Hume had performed oral sex on him on different occasions in different locations in the TSCI Secured Nursing Facility. Muhammad said those locations included the shower area, kitchen area, the bathrooms in the hallway, and the cell in the back of the facility. Muhammad further reported that current and former female employees of Correct Care Solutions, a third party contractor with NDCS, had performed oral sex on him in those areas. (Ex. 2, ¶¶ 4, 6)
5. On July 22, 2015, the Nebraska State Patrol was requested to investigate Hume for having a sexual relationship with an inmate at TSCI. (Ex. 3 [Filing No. 32-3], ¶ 7)
6. On July 24, 2015, Nebraska State Patrol Investigator Eugene True (True) interviewed Muhammad as part of the investigation. Muhammad admitted he had sexual penetration, oral, vaginal, and anal sex, while working as a porter in the TSCI Skilled Nursing Unit with three different females, including Hume and Nurse Tami Helmick (Helmick). Muhammad stated he knew the women were loose in that unit and that if he was nice perhaps they would let him “play” meaning sex. Muhammad stated “I knowingly engage in these activities, ” and that these sexual encounters had occurred over a period of approximately two years. Specifically, Muhammad said his sexual relationship with Hume began a little over a year ago and he'd had sex with her on four occasions. Muhammad further said he had sex with Helmick on two separate occasions in the last two years. Muhammad said these sexual encounters all occurred in the TSCI medical unit, either in the restroom or in the hallway by the restroom. Muhammad explained the sexual encounters would take place while he was standing in the restroom with the door open, or in the hallway near the restroom. Muhammad explained he was able to see the monitor on the desk while having sex in these locations, so if anyone was coming he or his partner had time to separate. Muhammad said when someone was coming, either he or his partner would go into the bathroom while the other stayed out in the hallway. Muhammad stated he was never caught having sex with any of the females. (Ex. 3, ¶¶ 3, 4, 8)
7. Muhammad told True he wished to marry Hume. (Ex. 3, ¶ 9)
8. An Inmate Interview Request (IIR) is a written document submitted by an inmate to a member or members of the administration of the facility where the inmate is incarcerated. Inmates may communicate with facility administration members through the submission of an IIR. IIRs are usually signed by the inmate in order to indicate to the facility administration member who submitted the IIR. (Ex. 4 [Filing No. 32-4], ¶ 7; Ex. 5 [Filing No. 32-5], ¶ 7)
9. Sometimes inmates submit anonymous IIRs to members of the TSCI administration. When a member of the TSCI administration receives an anonymous IIR from an inmate, the TSCI administration member keeps the IIRs in an anonymous IIR ...

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