Estate of Ronald E. Johnson v. Douglas Weber ( 2015 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-2383
    ___________________________
    Estate of Ronald E. Johnson, and through its Personal Representative, Lynette K.
    Johnson; Lynette K. Johnson, Individually
    lllllllllllllllllllll Plaintiffs - Appellants
    v.
    Douglas Weber; Troy Ponto; Darin Young; Crystal Van Vooren; Denny
    Kaemingk; Laurie Feiler; Timothy A. Reisch; South Dakota Department of
    Corrections; State of South Dakota; John Does 1-20
    lllllllllllllllllllll Defendants - Appellees
    ____________
    Appeal from United States District Court
    for the District of South Dakota - Sioux Falls
    ____________
    Submitted: February 11, 2015
    Filed: May 4, 2015
    ____________
    Before BYE, BEAM, and BENTON, Circuit Judges.
    ____________
    BYE, Circuit Judge.
    The Estate of Ronald E. Johnson and Lynette K. Johnson (collectively,
    "Johnson") commenced this 42 U.S.C. § 1983 complaint alleging violations of the
    constitutional and state law rights of the deceased Ronald Johnson. The district
    court1 granted summary judgment to defendants. Johnson filed the instant appeal,
    arguing summary judgment was improper. We affirm.
    I
    Pursuant to the proper standard of review, described below, the following are
    the facts as most favorable to Johnson. At the time of his death, Ronald Johnson was
    a prison guard for the South Dakota State Penitentiary ("the penitentiary"), a South
    Dakota Department of Corrections ("DOC") facility in Sioux Falls, South Dakota.
    On April 12, 2011, Rodney Berget and Eric Robert, inmates at the penitentiary,
    attempted to escape and in the process intentionally murdered Robert Johnson.
    Berget and Robert were convicted of first degree murder and sentenced to death.
    Rodney Berget first came to the penitentiary at the age of fifteen after escaping
    at least twice from his placement at South Dakota's State Training School. During
    his lifetime, Berget amassed multiple convictions for grand theft, burglary, escape,
    and attempt to escape. He spent most of his life in the South Dakota prison system.
    In addition to his two escapes from the State Training School, Berget escaped from
    the penitentiary on three separate occasions, the last of which occurred in 1987. None
    of Berget's escapes or escape attempts were violent and although Berget has a history
    of violence, he did not have a history of institutional violence. Berget was last
    incarcerated in 2003, and was initially placed in the maximum security area, but in
    2004 was transferred to the medium security area, West Hall. Berget had various
    disciplinary problems during this incarceration, including refusing housing
    assignments and conducting hunger strikes. During his incarceration Berget was
    transferred to segregation at various times and would thereafter return to West Hall.
    The paperwork for transfers was not always timely and properly completed, and
    1
    The Honorable Larry Piersol, United States District Judge for the District of
    South Dakota.
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    Johnson alleges at least some transfers were negotiated in exchange for ending
    hunger strikes.
    Eric Robert had no criminal history when he arrived at the penitentiary in 2006
    to serve an eighty-year sentence for kidnapping. Robert did not have a history of
    institutional violence prior to the murder of Ronald Johnson, but in 2007 was
    discovered making preparations for an escape attempt. Thereafter, Robert was moved
    to maximum security and the DOC learned through a confidential informant Robert
    had threatened a correctional officer. Robert conducted a hunger strike and was
    moved from maximum security into West Hall. The paperwork process was not
    followed and Johnson alleges the transfer was negotiated in exchange for ending the
    hunger strike.
    Although no concrete threats or plans were known by any of the defendants,
    there was some forewarning of an escape attempt. In 2009, the DOC received
    information from an inmate indicating Berget and Robert were planning an escape
    attempt. In 2010, the DOC received similar information from a different inmate.
    During this same time frame, correctional officer Chester Buie observed Robert and
    Berget had developed a relationship. Johnson heavily relies on a media report
    claiming the DOC knew Robert and Berget were planning an escape attempt in which
    they intended to murder a guard. The only evidence Johnson presents indicating the
    DOC may have known of a murder and escape plot comes from a media interview
    given immediately after the murder by Jesse Sondreal, the state's attorney who had
    prosecuted Robert and Berget. Sondreal testified he told the media he previously
    learned about a murder and escape plan. Sondreal's deposition testimony made clear
    the information did not originate from any of the defendants, but rather came from the
    Department of Criminal Investigation. Sondreal could not identify any details of the
    alleged escape and murder plot, but understood the threat to a guard was related to
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    Robert's 2007 escape attempt.2 No other witnesses corroborate the information
    Sondreal provided to the media and Sondreal could produce no notes or e-mails to
    show exactly what he learned and from whom.
    Berget and Robert ultimately ended up residing near each other in West Hall.
    At the time of the murder, Robert held the job of laundry cart pusher, requiring
    Robert to push a cart to and from the laundry building, which was separate from West
    Hall. Berget held various orderly jobs during his incarceration and was a trash-
    recycling orderly at the time of the murder. The jobs held by Robert and Berget did
    not require direct correctional supervision at all times. Taking advantage of the
    relative freedoms offered by their jobs, on April 12, 2011, Robert and Berget left
    West Hall and proceeded to an unauthorized area of the penitentiary where they
    murdered Ronald Johnson and attempted to escape from the penitentiary. The escape
    attempt was unsuccessful and Robert and Berget were convicted of murder.
    Johnson thereafter commenced this suit in South Dakota state court. Johnson
    named as defendants the State of South Dakota; the South Dakota Department of
    Corrections; Douglas Weber, the then-warden at the South Dakota State Penitentiary;
    Troy Ponto, as associate warden; Darin Young, a former associate warden and current
    Warden at the penitentiary; Crystal Van Vooren, a major who has worked for the
    DOC since 1989; Dennis Kaemingk, the Secretary of the DOC whose appointment
    became effective on May 2, 2011; Laurie Feiler, the Deputy Secretary of Corrections;
    Timothy A. Reisch, the former Secretary of Corrections until becoming Adjutant
    General for South Dakota on April 2, 2011; and twenty John Does. Johnson brought
    a federal constitutional claim under 42 U.S.C. § 1983 and five state law claims,
    alleging defendants were constitutionally liable for the murder of Robert Johnson
    because Robert and Berget had violent criminal pasts, escape histories, were
    2
    Johnson does not argue Robert's 2007 escape attempt included a plan to
    murder a prison guard, and no evidence in the record supports such a claim.
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    maximum-security inmates housed in the wrong area, made deals with the Warden,
    did not have proper classification paperwork, and had too much freedom of
    movement in their jobs. The defendants removed the action to federal court.
    The district court found defendants entitled to qualified immunity and granted
    summary judgment on Johnson’s constitutional claims. The district court remanded
    the remaining state law claims. Johnson appeals.
    II
    "We review a district court's decision to grant a motion for summary judgment
    de novo, applying the same standards for summary judgment as the district court."
    Tusing v. Des Moines Indep. Cmty. Sch. Dist., 
    639 F.3d 507
    , 514 (8th Cir. 2011).
    Summary judgment is appropriate "if the movant shows that there is no genuine
    dispute as to any material fact and the movant is entitled to judgment as a matter of
    law." Fed. R. Civ. P. 56(a). In considering summary judgment motions, the burden
    of demonstrating there are no genuine issues of material fact rests on the moving
    party, and we review the evidence and the inferences which reasonably may be drawn
    from the evidence in the light most favorable to the nonmoving party. Davis v.
    Jefferson Hosp. Ass'n, 
    685 F.3d 675
    , 680 (8th Cir. 2012). "'Where the record taken
    as a whole could not lead a rational trier of fact to find for the nonmoving party, there
    is no genuine issue for trial.'" Torgerson v. City of Rochester, 
    643 F.3d 1031
    , 1042
    (8th Cir. 2011) (quoting Ricci v. DeStefano, 
    557 U.S. 557
    , 585 (2009)).
    "Qualified immunity shields a government official from liability and the
    burdens of litigation in a § 1983 action for damages unless the official's conduct
    violated a clearly established constitutional or statutory right of which a reasonable
    official would have known." Chambers v. Pennycook, 
    641 F.3d 898
    , 904 (8th Cir.
    2011) (citing Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982)). Review of a grant of
    summary judgment based upon the granting of a claim of qualified immunity is a
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    two-step process. First, we consider whether the evidence demonstrates that the
    defendants' conduct violated a constitutional right. See Saucier v. Katz, 
    533 U.S. 194
    , 201 (2001). If there was a constitutional violation, we next consider whether the
    right violated was clearly established. See 
    id. Johnson's complaint
    alleges a constitutional due-process claim asserting
    liability for the injury caused to Ronald Johnson by Robert and Berget. "[N]othing
    in the language of the Due Process Clause itself requires the State to protect the life,
    liberty, and property of its citizens against invasion by private actors." DeShaney v.
    Winnebago Cnty. Dep't of Soc. Servs., 
    489 U.S. 189
    , 195 (1989) (holding the failure
    of the county's Department of Social Services to provide a child with adequate
    protection against his father's violence did not violate the child's substantive due
    process rights). However, substantive due process does require a state to protect
    individuals under two specific circumstances. "First, the state owes a duty to protect
    those in its custody." Hart v. City of Little Rock, 
    432 F.3d 801
    , 805 (8th Cir. 2005).
    "Second, the state owes a duty to protect individuals if it created the danger to which
    the individuals are subjected." 
    Id. Johnson relies
    on the state-created-danger theory
    of liability.
    "To succeed on such a theory, [a plaintiff] must prove (1) that [Ronald
    Johnson] was a member of 'a limited, precisely definable group,' (2) that the
    [defendants']3 conduct put [Ronald Johnson] at a 'significant risk of serious,
    immediate, and proximate harm,' (3) that the risk was 'obvious or known' to the
    [defendants], (4) that the [defendants] 'acted recklessly in conscious disregard of the
    3
    We are cognizant that in § 1983 suits "each defendant's conduct must be
    independently assessed" because § 1983 "does not sanction tort by association."
    Heartland Acad. Cmty. Church v. Waddle, 
    595 F.3d 798
    , 805-06 (8th Cir. 2010). In
    this appeal, we need not separately examine the individual actions of the various
    defendants because we find, even taking into consideration the acts of all the
    defendants together, no constitutional rights were violated.
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    risk,' and (5) that in total, the [defendants'] conduct 'shocks the conscience.'" Fields
    v. Abbott, 
    652 F.3d 886
    , 891 (8th Cir. 2011) (quoting 
    Hart, 342 F.3d at 805
    ).
    Under the state-created-danger theory, negligence and gross negligence cannot
    support a § 1983 claim alleging a violation of substantive due process rights. 
    Hart, 432 F.3d at 805
    . "Instead, actionable substantive due process claims involve a level
    of abuse and power so brutal and offensive that they do not comport with traditional
    ideas of fair play and decency." 
    Id. at 806
    (alterations and internal quotation marks
    omitted). "The test we employ to ascertain a valid substantive due process violation
    is whether the behavior of the governmental officer is so egregious, so outrageous,
    that it may fairly be said to shock the contemporary conscience." 
    Id. at 805
    (alteration and internal quotation marks omitted).
    Although proof of intent to harm is usually required, in certain cases proof of
    deliberate indifference will satisfy this substantive due process threshold. Terrell v.
    Larson, 
    396 F.3d 975
    , 978 (8th Cir. 2005) (en banc). In cases where "defendants
    acted under circumstances in which actual deliberation was practical . . . , their
    conduct may shock the conscience of federal judges only if they acted with 'deliberate
    indifference.'" Moore ex rel. Moore v. Briggs, 
    381 F.3d 771
    , 773 (8th Cir. 2004)
    (quoting Cnty. of Sacramento v. Lewis, 
    523 U.S. 833
    , 851-52 (1998)). The deliberate
    indifference standard applied in a substantive due process case is the same as that
    applied in Eighth Amendment cases: "the official must both be aware of facts from
    which the inference could be drawn that a substantial risk of serious harm exists, and
    he must also draw the inference." 
    Moore, 381 F.3d at 773-74
    (citing Farmer v.
    Brennan, 
    511 U.S. 825
    , 837 (1994)).
    On appeal, Johnson argues the district court erred in its analysis of the Hart
    factors and argues the actions of the defendants shock the conscience. First, Johnson
    alleges the district court erred in taking into account only the most recent housing and
    job assignments in its analysis in light of the temporal requirement of the second Hart
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    factor. We need not determine exactly how "immediate" a harm must occur under
    Hart, because even considering housing decisions as early as 2004 there is no
    evidence of deliberate indifference or conscious-shocking conduct. We need not
    analyze all five Hart factors because we conclude, even viewing the facts in the light
    most favorable to Johnson, the defendants' conduct did not shock the conscience.
    
    Fields, 652 F.3d at 891
    .
    Johnson alleges the job assignments shock the conscience because Robert and
    Berget were given too much freedom of movement and freedom from supervision.
    We disagree. Berget had worked as an orderly for many years without creating a
    known threat of harm to any correctional officer. The defendants were not indifferent
    to any alleged threat because no reported threat carried enough specificity for this
    Court to determine the penitentiary staff should have drawn an inference of a
    substantial risk of harm. See 
    Moore, 381 F.3d at 774
    . Despite the histories of Berget
    and Johnson, the defendants were not deliberately indifferent in allowing Berget and
    Robert to hold these prison jobs.
    Johnson alleges moving Berget to a medium security housing area shocks the
    conscience, particularly in light of missing paperwork and alleged hunger strike deals.
    Johnson maintains Berget had no right to be placed outside the maximum unit based
    on his criminal history, escape history, and institutional conduct. This is correct;
    Berget would have no viable challenge to a maximum security placement. See Burns
    v. Swenson, 
    430 F.2d 771
    (8th Cir. 1970). However, moving Berget to a medium
    security area, although not required, does not shock the conscience, particularly in
    light of DOC policy allowing Warden discretion in housing assignments.
    Although Berget had a substantial history of escaping and escape attempts and
    Robert had attempted to escape, and although both committed violent crimes before
    incarceration, neither Robert nor Berget had committed a murder and neither Robert
    nor Berget had committed a violent act in prison or shown any propensity for prison
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    violence. Johnson argues Robert and Berget were extremely dangerous inmates. In
    retrospect that allegation is certainly true. The murder perpetrated on Ronald Johnson
    shocks the conscience of this Court; however, the record does not demonstrate it was
    deliberate indifference to not consider Robert and Berget extremely dangerous before
    the murder of Ronald Johnson. We need not decide whether allowing an extremely
    dangerous inmate to reside in general population with the opportunity to murder
    shocks the conscience, because the histories of Robert and Berget do not support
    deliberate indifference in failing to consider them highly dangerous. Even with vague
    notice of a planned escape attempt, the defendants were not deliberately indifferent
    in failing to place Robert and Berget in maximum security. No prior escape attempts
    included violence and none had been successful after 1987.
    South Dakota Codified Laws § 24-2-27 contemplates the DOC will have
    control of housing and classification of inmates. DOC policy contemplates the same,
    and, despite a policy of basing housing on classification, allows Warden discretion.
    Although the paperwork was not always completed for the discretionary housing
    decisions, it was within the Warden’s power to move Robert and Berget from the
    maximum security facility to the West Hall. We do not find the DOC’s policies on
    Warden discretion to shock the conscience and we do not find the Warden acted with
    deliberate indifference in his transfers of Robert and Berget.
    III
    Accordingly, we affirm the judgment.
    ______________________________
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