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Guerry v. Frakes

United States District Court, D. Nebraska

April 6, 2018

BRIAN FRANK GUERRY, Plaintiff,
v.
SCOTT FRAKES, Director; BRIAN GAGE, Warden; GUIFFRE, Worker; and THOMPSON, Worker; Defendants. BRIAN FRANK GUERRY, Plaintiff,
v.
SCOTT FRAKES, in his individual capacity; FRANK HOPKINS, in his individual capacity; BRIAN GAGE, in his individual capacity; et al.; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on the Defendants'[1] Motion for Summary Judgment. (Filing No. 88, No. 8:15CV323; Filing Nos. 41, 46, No. 4:17CV3047.) For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         Plaintiff Brian Frank Guerry (“Guerry”) filed the action in No. 8:15CV323 on September 15, 2015, pursuant to 42 U.S.C. § 1983 against the Nebraska Department of Correctional Services (“NDCS”) and prison officials in their official and individual capacities, alleging violations of his constitutional rights and state law negligence claims arising out of the May 10, 2015, riot at Tecumseh State Correctional Institution (“TSCI”). (Filing No. 1.)[2]

         Guerry alleges that he resided in the protective custody unit of TSCI on May 10, 2015.[3] Guerry claims he resided in the protective custody unit because he is a sex offender and fears violence from gangs within general population based on an assault he suffered from them in 2013. (Id. at CM/ECF p. 4.)

         At approximately 4:00 p.m. on this date, Guerry began to suffer from smoke inhalation. He called officers in the unit's “control bubble” for help. At this time, the control bubble was staffed by three jail officials, including Chelsea Guiffre (“Guiffre”), a unit manager, and Daniel Thompson (“Thompson”), a case worker. Guerry alleges that Guiffre and Thompson remotely opened some cell doors in the unit, but not others. Guerry's cell door was among those opened. (Id.)

         Guerry exited his cell and called out for help, but Guiffre and Thompson were no longer in the control bubble. (Id.) He proceeded to go to the “small yard, ” where prison staff had instructed protective-custody inmates to go during a fire, but the door to the small yard was locked. Instead, Guiffre and Thompson had unlocked the door to the “Bigger fence in area yard, ” which allowed general-population inmates, including gang members, to enter the unit. (Id. at CM/ECF pp. 5, 13.) For the next nine or so hours, general population inmates entered the protective-custody unit, harassed protective-custody inmates, and started fires. The general population inmates had access to the control bubble. During this time, Guerry and ten other inmates locked themselves into a cell. Guerry alleges that he suffered approximately 10 hours of smoke inhalation. (Id. at CM/ECF pp. 6-7.) Law enforcement arrived at approximately 2:00 a.m. the following morning and provided assistance. (Id. at CM/ECF p. 7.)

         Guerry alleges prison staff immediately returned him to his cell and did not treat him for smoke inhalation. Following the prison riot, Guerry “ask[ed] for days to be seen by medical, ” but he was advised there would be no inmate movement. Finally, on June 3, 2015, Guerry received medical attention. (Id.)

         Guerry filed grievances with prison officials. (Id. at CM/ECF pp. 17-20.) The following response is attached to Guerry's Complaint:

You contend while housed at Tecumseh State Correctional Institution (TSCI) that during the May 10, 2015 TSCI disturbance, TSCI staff failed to protect Protective Custody inmates by abandoning their posts and leaving Protective Custody inmates to be victimized by General Population inmates. During the time period you mention in your Grievance, TSCI staff was busy working through a significant emergency situation. TSCI inmate and staff safety was an area of primary concern during the entire period surrounding the May 10, 2015 disturbance. The May 10, 2015 TSCI disturbance ultimately impacted all aspects of facility operations in some way. TSCI staff made every effort to provide the best environment possible considering the circumstances and difficulties created by the May 10, 2015 incident.

(Id. at CM/ECF p. 20.)

         Guerry complains he suffered various injuries as a result of the prison riot. He alleges his injuries were a result of Frakes' and Gage's negligence, deliberate indifference, and failure to train Guiffre and Thompson. In addition, he alleges that Guiffre and Thompson were deliberately indifferent to a known risk of serious harm when they abandoned their post in the control bubble during the riot. Guerry sought declaratory, injunctive, and monetary relief in this matter. (Id. at CM/ECF pp. 13-16.)

         After initial review of the Complaint and Defendants' Motion to Dismiss (Filing No. 24), the court determined that Guerry's Eighth Amendment failure-to- protect claims for monetary relief could proceed against Defendants Frakes, Gage, Guiffre, and Thompson in their individual capacities.[4] (Filing Nos. 13, 33.) The court dismissed Guerry's state law claims against the prison officials in their official capacities without prejudice to reassertion in state court.[5] (Filing No. 33, at CM/ECF p. 6.)

         On February 15, 2017, Guerry filed a suit in state district court (“the state court action”) specifically invoking the Nebraska State Tort Claims Act (“STCA”), Neb. Rev. Stat. §§ 81-8, 209, et seq., as well as federal claims similar to those brought in No. 8:15CV323. (See Filing No. 1-1, No. 4:17CV3047.) In addition, Guerry alleged that that Defendants failed to move him out of his cell where he was exposed to burning plastic, oily water contaminated with blood, human waste, and sewage for four or more days following the prison riot, and that his blankets, sheets, and bed contained blood of another inmate for a similar amount of time, during which time he had to eat and sleep in those conditions. (Id.)

         Subsequently, on April 7, 2017, Defendants filed a Notice of Removal in No. 4:17CV3047, removing the state court action. (Filing No. 1, No. 4:17CV3047.) The court remanded Guerry's state law claims and consolidated Nos. 8:15CV323 and 4:17CV3047 with respect to Guerry's federal claims. (Filing No. 74.) The court thereafter determined that Guerry's Eighth Amendment failure-to-protect claims and conditions-of-confinement claims could proceed against Defendants[6] in their individual capacities for monetary damages. (Filing No. 76.) The court dismissed Guerry's Eighth Amendment deliberate indifference to serious medical needs claim and his equal protection claim. (Filing No. 76 at CM/ECF p. 4, 6.)

         Defendants have filed a Motion for Summary Judgment asserting that they are entitled to qualified immunity and judgment as a matter of law on all remaining claims against them. (Filing No. 88; Filing Nos. 41, 46, No. 4:17CV3047.) Along with their Motion, Defendants filed an Index of Evidence and Brief in Support. (Filing Nos. 89, 90.) Guerry filed a Brief in Opposition to Defendants' Motion for Summary Judgment and an Index of Evidence. (Filing Nos. 94, 95.) After Defendants filed a Reply Brief (Filing No. 96), Guerry filed an Amended Brief in Opposition and an Amended Index of Evidence. (Filing Nos. 104, 105.)

         II. RELEVANT UNDISPUTED MATERIAL FACTS[7]

         1. At all relevant times, James Jansen (“Jansen”) was employed as Major at TSCI. He was employed in that capacity at TSCI on May 10, 2015, and was present at the facility and part of the TSCI command structure at all relevant times during the inmate disturbance on May 10, 2015. (Filing No. 90-2 at CM/ECF pp. 1-2, ¶¶ 2, 4.)[8]

         2. At all relevant times, Guiffre was employed as a Case Worker at TSCI. She was employed in that capacity on May 10, 2015, and was present at the facility with her work assignment being Housing Unit 2, Gallery[9] C. (Filing No. 90-3 at CM/ECF p. 1, ¶¶ 2-3.)

         3. Thompson is employed as a Case Worker at TSCI. However, Thompson was not scheduled to work at TSCI on May 10, 2015, nor was he present at the facility that day. He was not among the correctional officers who were involved with or who responded to the inmate disturbance that began at TSCI during the afternoon of May 10, 2015. (Filing No. 90-4 at CM/ECF p. 1, ¶¶ 2-3.)

         4. On May 10, 2015, Guerry was housed in Housing Unit 2, Gallery C at TSCI. Gallery C housed protective custody inmates at the time of the disturbance. (Filing No. 90-2 at CM/ECF p. 2, ¶ 6; Filing No. 90-3 at CM/ECF p. 1, ¶ 4.)

         5. Within Housing Unit 2 there are two “control stations.”[10] One control station serves Galleries A and B and the other serves Galleries C and D. From each control station, correctional officers can monitor their sectors of the unit, unlock individual cells, communicate with TSCI central control, and transmit an emergency duress signal, if necessary. TSCI central control and the unit-level control stations have the ability to authorize “group access” for multiple cells at the same time, unlocking the doors to selected cells and signaling to inmates that they may exit their cells and evacuate as instructed. “Unlock” in this context does not mean that a cell door is unlocked from both sides. Rather, it means the inmate may open the cell from the inside. If the inmate does not do so, the cell door remains locked from the outside. (Filing No. 90-2 at CM/ECF p. 2, ¶ 7; Filing No. 90-3 at CM/ECF p. 1, ¶ 5.)

         6. Beginning at approximately 2:30pm on May 10, 2015, and unfolding over the following several hours, a significant inmate disturbance occurred at TSCI. This disturbance affected virtually every aspect of operations at TSCI and included inmate violence in multiple locations and housing units, widespread inmate refusal to follow staff orders to lock down, the temporary forceful assumption of control of certain areas of the facility by inmates, physical threats to the safety of inmates and staff, actual assaults upon staff, and, ultimately, the deaths of two inmates. (Filing No. 90-2 at CM/ECF p. 2, ¶ 8.)

         7. TSCI was not understaffed on May 10, 2015 for regular operations. During the disturbance, additional NDCS staff resources than are ordinarily available at TSCI were necessary to subdue violent inmates and secure the facility. These additional resources included: (1) having TSCI personnel work additional hours and/or overtime; (2) NDCS special response team personnel from Lincoln; (3) the Nebraska State Patrol; and (4) Johnson County emergency personnel. These resources were summoned to TSCI during the disturbance as quickly as possible. (Filing No. 90-2 at CM/ECF pp. 2-3, ¶ 9.)

         8. Guiffre learned of the inmate disturbance at approximately 2:30 p.m. when she heard a radio call advising that emergency response was needed to deal with multiple inmate fights taking place in the main yard and that first and second responders were advised to proceed to the scene. (Filing No. 90-3 at CM/ECF p. 2, ¶ 6.)

         9. After hearing the radio call, Guiffre left Gallery C and went to the front door of Housing Unit 2 and looked into the yard. The other staff from Housing Unit 2 had responded to the fighting in the yard, so she remained in the housing unit to ensure that at least one staff member remained. After the initial fighting in the main yard subsided, two other Housing Unit 2 staff returned and Guiffre went back to Gallery C. (Filing No. 90-3 at CM/ECF p. 2, ¶ 7.)

         10. At approximately 3:00 p.m., Guiffre heard a radio call from TSCI central control advising staff to lock down all areas. Guiffre instructed inmates in Galleries C and D to lock down. Although several were argumentative, all inmates in Galleries C and D were successfully locked down shortly after 3:00 p.m. After these Galleries were locked down, Guiffre attempted to assist other staff secure non-rioting inmates in the yard and unsecured inmates in Gallery B. Guiffre, along with fellow Case Workers Steele and Thompkins, proceeded to the Gallery AB control station, where Corrections Officer Roede was in charge. (Filing No. 90-3 at CM/ECF p. 2, ¶ 8.)

         11. Between approximately 2:30 p.m. and 3:30 p.m., significant disruption occurred in Galleries A and B. Inmates in those Galleries initially refused to lock down when ordered. They proceeded to fashion makeshift weapons from mop/broom handles and fire extinguishers, to break through the sheetrock wall separating Galleries A and B, and to start fires inside those Galleries. (Filing No. 90-2 at CM/ECF p. 3, ¶ 10; Filing No. 90-3 at CM/ECF p. 2, ¶ 9.)

         12. One or more inmates attempted to cover security cameras with wet toilet tissue and the windows of the control station with sheets. Guiffre was able to stand on a counter inside the control station and observe inmate activity. Guiffre observed inmates use the metal legs off an ironing board to beat open the hole between Galleries A and B. Other inmates assisted in expanding that hole by stuffing paper, blankets, and toilet paper into the hole and then transferring a fire in a burning trash can to the material stuffed in the hole. Shortly thereafter, inmates from Gallery A were able to begin crossing into Gallery B. (Filing No. 90-3 at CM/ECF p. 2, ¶ 10.)

         13. At approximately 3:30 p.m., the fires that started earlier in Galleries A and B spread such that smoke began to fill the Gallery AB control station. Among the TSCI staff present in the Gallery AB control station at that time were Guiffre, Case Workers Steele and Thompkins, and Corrections Officer Roede. At roughly 3:40 p.m., the staff in the Gallery AB control station signaled duress and were given clearance to evacuate the control station. At that time, central control authorized group access for the cells in Galleries A and B, signaling the inmates in those cells to exit their cells and evacuate. Additionally, an announcement was made on the public address system for inmates to evacuate to the miniyards. (Filing No. 90-2 at CM/ECF p. 3, ¶ 11; Filing No. 90-3 at CM/ECF p. 3, ¶ 11.)

         14. The staff from the Gallery AB control station, including Guiffre, evacuated to the Gallery CD control station. Guiffre observed thick smoke throughout the cell areas and inside the control station itself. (Filing No. 90-2 at CM/ECF p. 3, ¶ 12; Filing No. 90-3 at CM/ECF p. 3, ¶ 12.)

         15. Because of the smoke filling Galleries C and D, the primary concern of Guiffre and the staff group with her at that point was that the inmates still secured in those galleries would be trapped in their cells. They accordingly radioed central control and advised them of the situation. They were again instructed by central control to signal duress and evacuate the Gallery CD control station. Simultaneously, central control authorized group access for the cells in Galleries C and D, signaling the inmates in those cells to exit their cells and evacuate to the miniyard shared by Galleries C and D. Additionally, an announcement was made on the public address system for inmates to evacuate to the miniyards. (Filing No. 90-2 at CM/ECF p. 3, ¶ 12; Filing No. 90-3 at CM/ECF p. 3, ¶ 13.)

         16. At this point, Guerry's cell door was unlocked and he successfully exited his cell. (Filing No. 1 at CM/ECF p. 4, ¶¶ II(B)(10-11); Filing No. 36 at CM/ECF p. 4, ¶¶ 14-15.)

         17. Guerry proceeded to an open door providing him access to an outside yard (i.e., the Gallery CD Miniyard), but declined to utilize this exit provided to him. (Filing No. 1 at CM/ECF p. 5, ΒΆΒΆ ...


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