United States District Court, N.D. Illinois, Western Division
December 6, 2004.
ROSE MARIE SMITH, Plaintiff,
WARDEN JERRY STERNES, ASSISTANT WARDEN STEVE WENNMAKER, ASSISTANT WARDEN CYNTHIA WILLIAMS, MARY RASMUSSEN, Correctional Officer MARSHALL and JOHN DOE, Defendants.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
Memorandum Opinion and Order
Rose Marie Smith ("Plaintiff") filed a Renewed Motion to Compel
Production of Documents on November 24, 2004, requesting an order
compelling Warden Jerry Sternes, Assistant Warden Steve
Wennmaker, Assistant Warden Cynthia Williams, Mary Rasmussen,
Correctional Officer Marshall, and John Doe (collectively
"Defendants") to respond to Plaintiff's Production Request #10.
Defendants filed their Response to Plaintiff's Renewed Motion to
Compel on December 2, 2004. For the following reasons,
Plaintiff's Motion to Compel is denied.
On May 26, 2000, while incarcerated at Dixon Correctional
Center in Dixon, Illinois, Plaintiff alleges that she was taken
from her cell in the middle of the night and raped by a
correctional officer. (Compl. at ¶ 1). On August 10, 2001,
Plaintiff filed a nine count complaint against Defendants
alleging: an Eighth Amendment violation for rape (Count I);
Failure to protect Plaintiff in violation of her Eighth Amendment
rights (Counts II & III); Assault and Battery (Count IV); Sexual Abuse (Count V); Intentional Infliction of Emotional
Distress (Count VI); Negligent Failure to Protect (Counts VII &
VIII); and Due Process Violation (Count IX).
On October 24, 2002, delivered with Plaintiff's Rule 26(a)(1)
disclosures, Plaintiff allegedly served Defendants' counsel with
Plaintiff's Request for Production of Documents. Defendants
served their responses to Plaintiff's Request for Production of
Documents on December 18, 2002, objecting to paragraphs nine
through thirteen. On April 24, 2003, Plaintiff filed a Motion to
Compel. Though broader in scope than Plaintiff's current Motion
to Compel before the court, Plaintiff's original Motion was
granted in part and denied in part on June 18, 2003. Relevant to
the current Motion, Defendants were ordered to produce under
Plaintiff's Document Request #10, which requested:
All disciplinary reports, investigative reports,
incident reports, grievances, internal affairs
investigations, and other similar documents which
refer to or reflect any allegation of sexual contact
between female prisoners and male correctional
employees in the Illinois Department of Corrections
from May, 1995 through May 25, 2000.
(Pl.'s Req. Produc. Docs., p. 2-3). However, after balancing the
burden of production versus the probability of finding relevant
material, the scope of Plaintiff's request was narrowed by the
court from documentation for the entire IDOC to documentation for
the Dixon facility only. The court found that it would not be
difficult to gather from the records of the Dixon Correctional
Center (as opposed to the entire IDOC) and noted that the
narrowed request was reasonably calculated to lead to
discoverable material because Plaintiff may be successful if she
can show a risk to be long-standing, pervasive, well-documented,
or expressly noted by prison officials in the past. Farmer v.
Brennan, 511 U.S. 825, 842 (1994). Defendants apparently
complied with the court's Order and produced documentation for five incidents of violations at the
Dixon Correctional facility for the period of May, 1995 to May,
2000. (Pl.'s Renewed Mot. Compel, at 3).
A. Plaintiff's Pending Motion to Compel
Plaintiff now moves the court to compel production under
document request #10 for the entire IDOC. Plaintiff asserts that
new information justifies her Motion, which in effect, asks the
court to reverse its original finding on the proper scope of
Plaintiff's discovery. Specifically, Plaintiff offers the results
of two prison surveys about sexual assault, four interviews with
women prisoners alleging sexual assault, and a newspaper article
relating five incidents of sexual assault as evidence pointing to
the IDOC's failure to take reasonable steps to protect Plaintiff
The survey results offered by Plaintiff are from two different
studies. The first analysis submitted reflects a survey of
approximately 118 women prisoners at Dixon Correctional Facility.
Eleven women prisoners responded to the survey, stating they had
either been sexually assaulted or had knowledge of a sexual
assault of another prisoner. (Pl.'s Renewed Mot. Compel, at 4).
The second survey was sent to 2,444 women prisoners incarcerated
in the IDOC. This survey yielded seventy completed responses.
Sixteen percent of those prisoners returning surveys indicated
they had been sexually threatened or assaulted in prison. (Pl.'s
Renewed Mot. Compel, at 4).
The newspaper article submitted by Plaintiff was published
August 11, 2001, in the Pantagraph. It relates five alleged
incidents of correctional officers sexually assaulting prisoners
at the Dwight Correctional facility. Likewise, the interviews put
forth by Plaintiff are of four women prisoners who claim to have
been assaulted in the Dwight Correctional facility. One prisoner
has filed a civil complaint, another has a case pending in the
Unites States District Court for the Central District of Illinois, and the other two prisoners have filed
grievances regarding their assaults.
Plaintiff also re-attached reports that the court considered in
Plaintiff's original Motion to Compel from Human Rights Watch and
Amnesty International, which break down complaints made by female
prisoners. Finally, in support of her Motion, Plaintiff asserts
that the IDOC makes no attempt to screen male officers assigned
to guard female prisoners, referencing Defendants' Answer to
Plaintiff's Request for Production of Documents, #9, which states
that no "[p]sychological, psychiatric, and other similar tests,
policies or procedures, or other similar documents, used to
screen males who apply for employment or who are being considered
for assignment to positions in which male correctional employees
may come into contact with female prisoners" exist. (Pl.'s
Renewed Mot. Compel, Ex. 9).
It is Plaintiff's position that this new evidence shows a
likelihood that a more extensive search by the IDOC would yield
further relevant discovery of allegations of sexual contact
between female prisoners and male correctional employees in the
IDOC. Plaintiff argues that prior incidents of sexual abuse are
relevant to her case because such prior incidents of rape, and
Defendants' knowledge of those incidents, forms the very basis of
Plaintiff's failure to protect claim and her ability to show
deliberate indifference to a well documented risk. Plaintiff
further states it would not be burdensome for Defendants to
produce under Request #10 because a similar request was complied
with by the IDOC for a Human Rights Watch Report published in
1996. (Pl.'s Renewed Mot. Compel, at 5, 10).
B. Defendants' Response
Defendants object to request number ten as being irrelevant,
overly broad, unduly burdensome, and security sensitive, arguing that Defendants
cannot be responsible for gathering documents from other
institutions besides the Dixon Correctional Facility. Further,
Defendants argue that Plaintiff's Requests are irrelevant to her
case because Plaintiff's case is "clearly a case brought by one
inmate, at one facility, regarding one alleged incident of
excessive force." (Def's Response to Pl.'s Mot., para. 6).
Federal Rule of Civil Procedure 26(b) states, in pertinent
part, that parties may obtain discovery regarding any matter, not
privileged, which is relevant to the claim or defense of any
party. Relevant information need not be admissible at trial if
the discovery appears reasonably calculated to lead to the
discovery of admissible evidence. See Fed.R.Civ.P. 26(b)(1).
Rule 37(a)(2)(B) enforces this obligation by providing "if a
party, in response to a request for inspection submitted under
Rule 34, fails to respond that inspection will be permitted as
requested . . . or the discovering party may move for an order . . .
compelling inspection in accordance with the request."
In order to properly determine whether Plaintiff's requests are
discoverable, this Court again turns to Plaintiff's complaint,
which contains an Eighth Amendment and failure to protect claim.
The Eighth Amendment imposes a duty on prison officials to "take
reasonable steps to protect prisoners from attacks by other
prisoners." Birch v. Jones, 2003 WL 21210107, at *2 (N.D. Ill.
May 21, 2003) (citing Farmer v. Brennan, 511 U.S. 825, 833
(1994)). While not every inmate-on-inmate attack raises the
specter of a constitutional violation, an Eighth Amendment
violation does exist where there is "deliberate indifference*fn1 by prison
officials [which] effectively condones the attack by allowing it
to happen." Id. (citing Langston v. Peters, 100 F.3d 1235,
1237 (7th Cir. 1996)).
In order to prevail under Section 1983, an inmate must show
that the "defendants knew of the danger that the plaintiff faced,
not whether a reasonable person should have known." Birch, 2003
WL 21210107, at *3 (citing Qian v. Kautz, 168 F.3d 949, 955
(7th Cir. 1999)). While a prisoner can prove knowledge of
impending harm by demonstrating that he or she alerted prison
officials to an identifiable threat, a prisoner can also show the
existence of so substantial a risk of harm that the defendants'
knowledge of the risk can be inferred. Id. (citing Farmer,
511 U.S. at 848). A risk is obvious where a prisoner can show the
risk to be long-standing, pervasive, well-documented, or that it
has been expressly noted by prison officials in the past.
Farmer, 511 U.S. at 842.
As stated above, request number ten seeks information regarding
all disciplinary reports, investigative reports, grievances,
internal affairs investigations, and other similar documents
which refer to any allegation of sexual contact between female
prisoners and male correctional officers. Defendants' primary
argument against disclosure is that such documentation goes far
beyond the discovery relevant to Plaintiff's case, and thus, is
too burdensome to produce. The court agreed with Defendant when
it last ruled on Plaintiff's original Motion to Compel, noting
that the court needed additional information regarding the
likelihood that a more extensive search would yield relevant information. The issue, then, is whether the new evidence
submitted by Plaintiff demonstrates that her discovery requests
are likely to lead to admissible evidence.
After reviewing the new evidence, the court remains unpersuaded
by Plaintiff's argument. The statistics from Plaintiff's surveys
do not carry much weight. The Dixon survey does not necessarily
contradict the documented five incidents of assault at Dixon
already produced by Defendants as the Dixon survey consisted of
eleven women stating they had been assaulted or they had
knowledge of others being assaulted. The number discrepancy
could, therefore, be due to over lap of the incidents. As to the
IDOC survey of 2,444 inmates, only 70 individuals responded, and
only 16 percent of those (approximately 11) indicated they had
been sexually violated. Likewise, the five incidents of sexual
assault at Dwight reported by the Pantagraph newspaper and the
four women interviewed about their allegations of assault at
Dwight is not enough to tip the scales in Plaintiff's favor.
Thus, despite the additional information provided, the court
continues to find that Plaintiff has not met her burden to show
that a system-wide search for documentation of sexual assaults in
the IDOC is likely to turn up evidence relevant to Plaintiff's
For the above stated reasons, Plaintiff's Renewed Motion to
Compel is denied.