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Hatch v. Wasatch County

United States District Court, D. Utah, Central Division

August 3, 2017

DEBORAH HATCH, Plaintiff,
v.
WASATCH COUNTY, et al., Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID SAM, SENIOR JUDGE UNITED STATES DISTRICT COURT

         I. INTRODUCTION

         In her Amended Complaint Ms. Hatch alleges that while an inmate at Wasatch County Jail she was subjected to acts of sexual harassment and assault by Wasatch County Deputy Sheriff Chris Epperson who was assigned to work in the jail.

         Defendants Wasatch County, former Jail Commander Sue Winterton, and former Sheriff Kenneth Van Wagoner move for summary judgment (Doc. #116) on all of Ms. Hatch's claims against them.

         The Amended Complaint contains two claims for relief relevant to the present motion. In the Second Claim of the Amended Complaint, brought pursuant to 42 U.S.C. § 1983 for deprivation of Hatch's rights against cruel and unusual punishment under the Eighth Amendment, she generally alleges that Ms. Winterton, as jail commander, was responsible for inmate safety, that she knew of Epperson's misconduct, but failed to properly supervise and train jail personnel, and failed to implement and enforce policies relating to sexual harassment and sexual contact between jail personnel and inmates, resulting in injury to her. The claim against Winterton is brought in both her individual and official capacities.

         The Fourth Claim, likewise, is bought pursuant to § 1983. Ms. Hatch sues Wasatch County and former Sheriff Kenneth Van Wagoner for deprivations of rights under the Eighth Amendment. She generally alleges that those defendants, aware of Epperson's misconduct, failed to properly supervise and train jail personnel and failed to implement policies relating to sexual harassment and sexual contact between jail personnel and inmates, resulting in injury to her. The claim against former Sheriff Van Wagoner is brought in both his individual and official capacities.

         Plaintiff now concedes that Sheriff Van Wagoner may be dismissed. See Mem. Opp'n at 2 (“Plaintiff agrees that the claims against Sheriff Von [sic] Wagoner should be dismissed”).

         II. SUMMARY JUDGEMENT STANDARD

         Under Fed.R.Civ.P. 56, summary judgment is proper when the pleadings, affidavits, depositions or admissions establish there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party.[1]See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986). This burden has two distinct components: an initial burden of production on the moving party, which burden when satisfied shifts to the nonmoving party, and an ultimate burden of persuasion, which always remains on the moving party. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983).

         The central inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. If the nonmoving party cannot muster sufficient evidence to make out a triable issue of fact on his claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Celotex, 477 U.S. 242.

         “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Id., 477 U.S. at 325. “[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (alteration and internal quotation marks omitted).

         III. DISCUSSION

         Section 1983 provides a private cause of action for a person subjected “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by a person acting under color of state law. 42 U.S.C. § 1983. The Eighth Amendment imposes a duty on prison officials to provide “humane conditions of confinement” and to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks omitted).

         A. 42 U.C.S. § 1983 - Wasatch County (Fourth Claim)

         Ms. Hatch's § 1983 claim against Wasatch County and Sheriff Van Wagoner is predicated on assertions that those defendants knew of Epperson's conduct through Winterton, but failed to properly supervise and train jail personnel, and failed to implement and enforce policies relating to sexual harassment and sexual contact between jail personnel and inmates.[2]

         Local governments are not vicariously liable under § 1983 for their employees' actions. Connick v. Thompson, 563 U.S. 51, 60 (2011) Therefore, “[a] municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff. Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978)). A local governmental entity may be liable “if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person to be subjected to such deprivation.” Connick, 563 U.S. at 60 (citing Monell, 436 U.S. at 692). The Tenth Circuit recently summarized the law regarding § 1983 municipal liability.

To establish municipal liability on a § 1983 claim, a plaintiff must show that “the municipality itself cause[d] the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). We have identified three elements to such a claim: “(1) official policy or custom, (2) causation, and (3) state of mind.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013). An official policy or custom may take many forms, including “a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Id. At 770. This requirement is intended to limit the municipality's liability to acts for which it is actually responsible, not merely those of its employees. Id.; see also City of Canton, 489 U.S. at 385, 109 S.Ct. 1197 (“Respondeat superior or vicarious liability will not attach under § 1983.”). Causation may be established if the plaintiff shows “the municipality was the moving force behind the injury alleged.” Schneider, 717 F.3d at 770 (internal quotation marks omitted). “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied.” Id. (internal quotation marks omitted). Finally, to show that “a facially lawful municipal action has led an employee to violate a plaintiff's rights, ” the plaintiff must show that the action “was taken with deliberate indifference as to its known or obvious consequences.” Id. (internal quotation marks omitted). In the context of a “failure to train” claim under § 1983, even a showing of gross negligence by the municipality is inadequate to meet the state-of-mind requirement. City of Canton, 489 U.S. at 388 & n.7, 109 S.Ct. 1197.

Blueberry v. Comanche County Facilities Authority, 672 Fed.Appx. 814, 816-17 (10th Cir. 2016) (emphasis added).

         1. official policy or custom (and its “many forms”)

         In support of her § 1983 claims, Ms. Hatch asserts in conclusory fashion that “[i]n the absence of policies and training, Epperson was able to sexually harass [her] without intervention for a period of about six months, and was then able to escalate that harassment into sexual assault.” Mem. Opp'n at 21.

         a. policy

         Uncontroverted factual evidence reflects that Wasatch County had relevant governing polices in effect during the time in question.[3]

         Ms. Hatch's attempt to create a disputed issue of fact as to whether a policy existed by citing deposition testimony of Susan Winterton that there was no policy falls short. See Mem. Opp'n at 21. The passage cited, at most, reflects that in Winterton's view there was a policy in place but outdated. See Winterton Dep. p. 11, Mem. Opp'n, Ex. 3. See also Winterton Decl. at ¶ 3 (“During my tenure, Wasatch County Jail policies prohibited familiar or personal relationships and any sexual relations or sexual conduct between inmates and Wasatch County Jail employees.”).[4] Without factual support Hatch conclusorily denies that Epperson received training on relationships with prisoners by Peace Officer Standards and Training (“POST”).[5]

         b. training

         It is undisputed that Mr. Epperson was certified as a Correctional Officer by Utah POST. Sheriff Bonner, who is familiar with POST training states that participants “receive training regarding sexual harassment and working with arrestees and ...


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