The opinion of the court was delivered by: Herndon, Chief Judge
Now before the Court is a Motion for Interlocutory Summary Judgment on the Issue of Liability Against Defendant Richard Jenkins (Doc. 56), filed by Plaintiffs Krystal Hawkins and Samantha Pepos. Defendant has filed an opposing memorandum (Doc. 63), to which Plaintiffs have replied (Doc 69). Defendant has further supplemented his response with his deposition transcript (Doc. 129). For the following reasons, Plaintiff's motion for interlocutory summary judgment (Doc. 56) is DENIED.
A. Plaintiff's First Amended Complaint
On March 21, 2008, Plaintiffs filed their first amended complaint brought pursuant to U.S.C. § 1983, seeking monetary damages against all Defendants for committing acts under color of law which "deprived Plaintiffs of rights, privileges, and immunities secured by law and the Constitution of the United States, including Plaintiffs' rights to be free from harm, excess force and cruel and unusual punishment, secured by the Eighth and Fourteenth Amendment." (Doc. 54, p. 8). Count I alleges that Defendants Richard Jenkins, Ronald Schaefer, James Beever, Gregg Gregory, Beverly Williams, Bridget Connors, Tyrone Sillas, Tomisha McNeal, Lisa Brennan, and Darron Suggs*fn1 actions and non-actions exhibited a deliberate indifference for Plaintiff's rights, and had customs, policies and practices that violated the federal rights of U.S. citizens and harmed Plaintiffs. (Id. at pp. 8-9). Count II alleges assault and battery against Richard Jenkins. (Id. at p. 10). Count III alleges a claim of intentional infliction of emotional distress by all Defendants and St. Clair County. (Id. at pp. 11-12). Count IV alleges a claim of negligent infliction of emotional distress by all Defendants including St. Clair County. (Id. at 12-13). Count V alleges a claim of negligence against Defendants Ronald Schaefer, James Beever, and St. Clair County. (Id. at p. 13).
In their First Amended Complaint, the Plaintiffs make the following factual allegations: that Plaintiff Samantha Pepos was a detainee at the St. Clair County Juvenile Detention Center between February 9, 2006 and May 9, 2006, while Plaintiff Krystal Hawkins was a detainee at the St. Clair County Juvenile Detention Center between January 27, 2006 and February 27, 2006. (Id. at p. 4). Defendant Richard Jenkins worked at the St. Clair County Juvenile Detention Center and between January 27, 2006 and February 27, 2006, Jenkins, acting in his individual and official capacity, sexually abused Plaintiffs and threatened Plaintiffs. (Id. at p. 6).
Plaintiffs further allege that two other corrections officers at the Juvenile Detention Center committed separate acts of sexual abuse with detainees at the St. Clair County Juvenile Detention Center eighteen months prior to Plaintiffs' detention. Defendants had actual or constructive knowledge that corrections officers had the customs, policies, and/or practices of engaging in acts of sexual abuse with minor detainees (Id. at 4). Plaintiffs further allege, that despite this knowledge of sexual abuse by corrections officers, Defendants Ronald Schaefer and James Beever, acting in their individual and official capacities and under the color of law and pretense of state law and as employees and agents of St. Clair County, failed to train its correction officers and create and enforce procedures and policies to prevent sexual abuse by its employees and protect Plaintiffs. (Id. at 6).
B. Plaintiff's Motion For Summary Judgment
Plaintiffs now move for summary judgment on the issue of liability as to Count II for assault and battery against Defendant Jenkins because they believe that they have stated a prima facie case for assault and battery and because they argue that this Court may draw adverse inferences from Defendant Jenkins' refusal to answer deposition questions.
Plaintiffs submit direct and circumstantial evidence that they argue establishes a prima facie case for assault and battery. In their interlocutory summary judgment motion, Plaintiffs allege the following facts: Plaintiffs were both minors the entire time they were incarcerated at the St. Clair County Juvenile Detention Center. (Doc. 56, p. 3). After both Plaintiffs had been released, on June 5, 2006 a fellow detainee wrote Jim Beever, the superintendent of the Detention Center, telling him that a correctional officer named Richard sexually assault Samantha Pepos. (Doc. 56, Ex. 3). The detainee stated that Richard also gave her gum, cookies, and candy at night. (Id.). After receiving the letter, on June 12, 2006, Michael Buettner, Deputy Director of Court Services at St. Clair County, interviewed Plaintiff Pepos and obtained a voluntary statement from her. (Doc. 56, p. 4). Plaintiff Pepos stated that Defendant Jenkins would enter her room at night and touch her. (Doc. 56, Ex. 5). Plaintiff Pepos also stated Defendant Jenkins would bring her gum, cookies and candy and further stated that she believed Defendant Jenkins had also "done something" to Krystal Hawkins. (Id.). A sheriff's investigator talked with Plaintiff Pepos the same day after the interview and she affirmed her voluntary statement (Doc. 56, Ex. 6).
On June 13, 2006, Sgt. Thomas Trice and Investigator Daniel Stocket interviewed Defendant Jenkins and in his unsworn videotaped interview, Defendant Jenkins stated that he never touched any girls or gave them food. (Doc. 56, Ex. 6). On June 23, 2006, Plaintiff Pepos gave a videotaped interview, in which she reiterated that Defendant Jenkins sexually abused her, to members of the sheriff's department, attorney's office, Department of Children and Family Services, and St. Clair County Child Advocacy Center (Doc. 56, Ex. 8). On June 27, 2006, Jodi Jones, a corrections officer that worked with Defendant Jenkins, admitted to Michael Buettner and Ronald Schaefer that she was aware that Defendant Jenkins gave Plaintiff's cookies at night and would open their security room doors in order to pass the snacks to them (Doc. 56, Ex. 9).
On August 3, 2007, Brad Clossen videotaped an interview with Plaintiff Hawkins in which she stated that Defendant Jenkins would let her use his cell phone, would come into her room and touch her, call her on the intercom and tell her to get undressed, and pull out his penis and tell her to suck it. (Doc. 56, Ex. 6).
On January 11, 2007, Ronald Schaefer, Director of Court Services, issued a memo to Defendant Jenkins, ordering his presence at a hearing regarding violations of Department and County policies based on the complaints of ...