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B v. Duff

July 17, 2009

B, N AND G, PLAINTIFFS,
v.
MARK A. DUFF, KIM MILLER, JEFFERY BARGAR, THOMAS MATHIAS, MARGARITA MENDOZA AND LUKE HARTIGAN, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

REDACTED MEMORANDUM OPINION AND ORDER

Plaintiffs Minor B, Minor N and Minor T (collectively "Plaintiffs") filed suit against Defendants Mark A. Duff ("Duff"), Kim Miller ("Miller"), Jeffery Bargar ("Bargar"), Thomas Mathias ("Mathias"), Margarita Mendoza ("Mendoza") and Luke Hartigan ("Hartigan") pursuant to 42 U.S.C. § 1983. Specifically, Plaintiffs' Second Amended Complaint alleges that: 1) Minor B and Minor T were repeatedly physically and sexually abused by Duff, a prison guard, while incarcerated at the Illinois Youth Center in Warrenville, Illinois, and that Defendants Miller and Bargar, the director of security and warden, respectively, were deliberately indifferent to and consciously disregarded their heath, safety and welfare in violation of their right to be free from cruel and unusual punishment under the Eight Amendment to the United States Constitution and Section 1 & 2 of the Illinois Constitution (Counts I and III), and 2) Minor N was repeatedly physically and sexually abused by Duff and Mathias, another prison guard, while incarcerated at the Illinois Youth Center in Warrenville and that Miller, Bargar, Mendoza (an assistant warden), and Hartigan (an assistant warden) were deliberately indifferent to and consciously disregarded her health, safety and welfare and beat her when she refused to cooperate with them in violation of her right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Section 1 & 2 of the Illinois Constitution (Count II). Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1, Defendants Miller, Bargar, Mendoza and Hartigan (collectively, "Defendants") have moved for summary judgment. For the reasons stated, the Defendants' Motion for Summary Judgment is granted.*fn1

STATEMENT OF UNDISPUTED FACTS

Plaintiffs Minor B, Minor N and Minor T were all minor inmates at the Illinois Youth Center in Warrenville, Illinois ("Warrenville"). (Pl. 56.1 Resp. ¶¶ 1, 2, 3.)*fn2 Minor B and Minor T have since completed their sentences and have been released. (D.E. 121; Pl. 56.1 Resp. ¶ 39). Minor N was transferred to a different facility in May 2004 and transferred again in March 2007 to Dwight Correctional Center where she is currently serving the remainder of her sentence. (Pl. 56.1 ¶ 17; Ex. B, ¶. 7-8). She is expected to be released in April 2011. See Illinois Department of Corrections, http://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=R81116 (last visited July 01, 2009).*fn3 During the time that Plaintiffs were incarcerated at Warrenville, Duff worked for the facility as a Dietary Staff employee, Mathias was a Correctional Officer and Youth Supervisor, Bargar was the Warden of the institution, Miller was the Chief of Security, Hartigan was the Assistant Warden of Operations, and Mendoza was the Superintendent of Programs.*fn4 (Pl. 56.1 Resp. ¶¶ 4, 5, 6, 7, 8, 9.)

During his tenure at Warrenville, Warden Bargar adhered to a policy that allowed minor female inmates to discuss issues with staff members who were expected to listen to the inmates and try to help them work through their problems. (Pl. 56.1 Resp. ¶ 54.) If an inmate's problem involved a mental health issue, the staff was required to make sure that a counselor or therapist was called in to assist the inmate. (Pl. 56.1 Resp. ¶ 54.) Personal relationships between the staff and the inmates were "discouraged" and the management communicated this clearly to the staff. (Pl. 56.1 Resp. ¶¶ 54, 55; Def. Ex. D, p. 20; Def. Ex. G, ¶ 17-18.)

While incarcerated at Warrenville, inmates were assigned to work in various areas of the institution by an assignment committee. (Def. 56.1 Resp. ¶ 6.) Food supervisors in the kitchen, however, were allowed to choose their staff. (Def. 56.1 Resp. ¶ 6.) Defendant Miller stated that this policy resulted in the food supervisors "playing favorites"with preferred inmates. (Def. 56.1 Resp. ¶ 6; Def. Ex. G, p. 53.)

Plaintiff Minor B

Minor B was brought to Warrenville sometime at the end of 2001 or the beginning of 2002, where she remained until she was transferred to IYC-Chicago in July of 2004. (Def. Ex. A, p. 8.) While incarcerated at Warrenville, Minor B worked on and off in the institution's kitchen under Duff's supervision. (Pl. 56.1 Resp. ¶ 5.) During that time, Minor B and Duff engaged in personal conversations outside the presence of other Warrenville staff. (Pl. 56.1 Resp. ¶¶ 6, 7.)*fn5 Minor B described her relationship with Duff as unprofessional and her conversations as not typical between an inmate and a correctional officer. (Def. 56.1 Resp. ¶ 2; Def. Ex. A, p. 9.) At some point during her incarceration, Defendant Miller spoke to Minor B about her relationship with Duff. (Pl. 56.1 Resp. ¶ 8; Def. 56.1 Resp. ¶ 21.) Minor B, however, was hesitant to tell Miller what was taking place because she was scared; Miller was the chief of security and she was incarcerated at the institution. (Def. Ex. A, p. 11-12.) As a result, during her conversation with Miller, Minor B denied that Duff was having an improper relationship with her and did not request a change in work assignments. (Pl. 56.1 Resp. ¶ 8; Def. 56.1 Resp. ¶ 21.) Minor B did not tell Miller that Duff had sexually assaulted her or that she feared that Duff was going to sexually assault her. (Pl. 56.1 Resp. ¶ 8; Def. 56.1 Resp. ¶ 21.) Minor B testified that during her conversation with Miller, he told her that inappropriate conversations and unprofessional relationships with inmates "has been an ongoing thing with him," referring to Duff. (Def. 56.1 Resp. ¶ 21; Ex. A, at 12.)

Eventually, in June or July of 2004, Duff had oral sex and sexual intercourse with Minor B on three separate occasions. (Pl. 56.1 Resp. ¶ 9.) All of these sexual acts occurred outside the presence of any of the Warrenville staff and were not captured on the institutions' security tapes. (Pl. 56.1 Resp. ¶ 11.) Minor B never informed the Warrenville staff that Duff was sexually assaulting her nor did she inform Bargar, Mendoza or Hartigan as to what was occurring. (Pl. 56.1 Resp. ¶¶ 11, 12.) Minor B never filed a grievance against Duff for his conduct. (Pl. 56.1 Resp. ¶ 13.) Minor B testified that she did not file a grievance against Duff because she was scared and did not want to face any physical reprisal from the staff at Warrenville. (Def. 56.1 Resp. ¶ 36.)

On July 19, 2004, while still incarcerated at Warrenville, Minor B was interviewed by Illinois Department of Corrections' ("IDOC") investigators about her previous interactions with Duff. (Pl. 56.1 Resp. ¶ 14.) During this interview Minor B gave a signed written statement in which she stated that "she has never had sexual relations of any kind with Duff." (Pl. 56.1 Resp. ¶ 14; Def. Ex. A, Minor B Dep. Ex. 1.) On July 20, 2004, IDOC investigators conducted another interview with Minor B. (Pl. 56.1 Resp. ¶¶ 14, 15; Def's Ex. A at p. 27-29). During this interview, after the investigators told her that she would be taken out of Warrenville and shipped to another institution, Minor B gave a written statement stating that Duff had sexually assaulted her. (Pl. 56.1 Resp. ¶¶ 14, 15; Def's Ex. A at p. 27-29).

Plaintiff Minor N

Minor N was an inmate at Warrenville from April until August 2002, and again from December 2002 until May 2004 when she was transferred to another institution. (Pl. 56.1 Resp. ¶ 17.) While incarcerated, Minor N primarily worked in the kitchen under Duff's supervision. (Pl. 56.1 Resp. ¶ 18.) During Minor N's first stay at Warrenville, Duff never initiated sexual contact with her; however, they had a very open relationship that went beyond a typical inmate staff relationship. (Pl. 56.1 Resp. ¶ 19; Def. 56.1 Resp. ¶ 2.) Minor N thought of Duff as her "best friend" and felt that he was someone she could "talk to similar to a counselor or a therapist." (Pl. 56.1 Resp. ¶ 19; Def. 56.1 Resp. ¶ 5; Def. Ex. G, ¶. 33-34.) In November 2003, during her second stay at Warrenville, Warden Bargar intercepted a letter that Minor N had written to Duff. (Def. 56.1 Resp. ¶ 7.) In the letter Minor N wrote,

I miss working in the kitchen with you. When I do start back I will not get to work at night though that will really stink. [] I wish we could be more then [sic] friends but I know that can not happen while we are in here. I plan on meeting you in the parking lot when I get out. Ha! [] I know I should not think this way about you. You got a wife and kid at home. But I can not help it. I also can not hide it anymore. [] Well baby boy I am going to let your sexy ass go for now but never forever. Good night and sweet wet dreams. (Def. 56.1 Resp. ¶ 7; Def. Ex. L.) Warden Bargar characterized Minor N's letter as nothing unusual and testified that nothing in it "would have set off any alarms in [his] mind about the relationship between Minor N and Duff." (Def. 56.1 Resp. ¶ 9; Def. Ex. D, p. 58-59.) Upon receiving the letter, Warden Bargar instructed Defendants Hartigan and Miller to interview Minor N about it. (Def. 56.1 Resp. ¶ 10.) Hartigan and Miller documented their interview with Minor N in an email dated November 11, 2003 and sent to Warden Bargar. (Def. 56.1 Resp. ¶ 10.) The email read:

[Minor N] stated that Duff is still her friend and she enjoys the ability to talk freely to him about personal issues. She stated that she is aware he is married and has children. She denied any involvement with Duff, however she stated that Duff would be someone she might take a risk with, referring to an improper relationship. She stated there are other staff with which she would also take that risk, but did not mention any names. She also admitted that she would be less than truthful if asked about such maters. She was later brought to your office where she reiterated that she is not involved in an improper relationship with Duff, but that he is someone she can talk to similar to a Counselor or a Therapist. (Def. 56.1 Resp. ¶¶ 10, 11.) Warden Bargar testified that Minor N's statements that she might "take a risk" with Duff or other staff members and that she would be "less than truthful" if asked about such matters did not raise a "red flag" with him because he knew Minor N to be a "very unstable girl" that would "become fixated on an issue or on someone and just really try to embellish things." (Def. 56.1 Resp. ¶ 11; Ex. D, ¶. 66-67.) Defendant Hartigan testified, that in hindsight, Minor N's statement to him that she discussed personal issues with Duff would have raised concerns with him. (Def. 56.1 Resp. ¶ 12.) Hartigan also testified that Minor N's comment that she would be "less than truthful" if asked about taking a risk with Duff or another correctional officer did not raise any concerns with him as to Minor N's safety at the time; but it indicated that Minor N was someone that may or may not be truthful when interviewed. (Def. 56.1 Resp. ¶ 12, 13; Ex. G, ¶. 30-31.)

During Minor N's second stay at Warrenville, Duff had sex with her on three separate occasions and she performed fellatio on him once. (Pl. 56.1 Resp. ¶ 20.) All of these sexual encounters took place in the back pantry of the kitchen where there were no cameras so they would not get caught. (Pl. 56.1 Resp. ¶ 21.) After intercepting the letter that Minor N wrote to Duff, Defendant Miller repeatedly questioned her about the nature of their relationship. (Pl. 56.1 Resp. ¶¶ 22, 23.) Despite this repeated questioning, Minor N did not tell Miller that Duff had sexually assaulted her. (Pl. 56.1 Resp. ¶¶ 22, 23.) Defendants Mendoza, Hartigan and Bargar also questioned Minor N about her interactions with Duff but she never told anyone at Warrenville about his behavior. (Pl. 56.1 Resp. ¶¶ 23, 24.) Additionally, Minor N never filed a grievance against Duff for sexually assaulting her. (Pl. 56.1 Resp. ¶ 26.)

The first time Minor N told anyone about Duff's sexual contact with her was in July 2004, when she was being questioned by investigators regarding Duff's arrest for charges of sexual assault against Minor B. (Pl. 56.1 Resp. ¶ 27.) Duff subsequently pleaded guilty in DuPage County to two counts of criminal sexual assault for sexual misconduct against Minor B. (Pl. 56.1 Resp. 53.) Minor N testified that she never told Defendants about her relationship with Duff "because she didn't want him to go to jail or get in trouble." (Def. 56.1 Resp. ¶ 20.)

On November 27, 2003, Minor N filed a grievance against Miller for allegedly using excessive force against her. (Pl. 56.1 Resp. ¶ 28.) The incident that gave rise to this grievance began when Minor N sat down on the floor and refused to get up. (Pl. 56.1 Resp. ¶ 29.) Defendants maintain that youth counselor Sparekas was working security and when he told Minor N to get up off the floor Minor N stated "fuck-no" and kicked him in the legs. (Pl. 56.1 Resp. ¶ 29.) At this point, Sparekas and Miller held Minor N down, cuffed her and took her to D-Wing. (Pl. 56.1 Resp. ¶ 29.) Minor N concedes that she sat on the floor and refused to get up, but alleges that Miller picked her up and threw her to the ground because she would not tell him about Duff's sexual misconduct. (Def. 56.1 Resp. ¶ 34; Def. Ex. B, p. 12-14.) Minor B described Minor N's injuries by stating that Minor N looked like a "pumpkin head" with her eyes closed and her lips swollen. (Def. 56.1 Resp. ¶ 35.) After receiving Minor N's grievance against Miller, the grievance officer recommended that Minor N's grievance be denied based on lack of evidence and the Chief Administrative Officer agreed with this recommendation. (Pl. 56.1 Resp. ¶ 30.)

While Minor N was incarcerated at Warrenville, Defendant Mathias also had sex with her on two separate occasions in January 2004. (Pl. 56.1 Resp. ¶ 31.) No staff members or inmates were present during any of these sexual encounters. (Pl. 56.1 ¶ 32.) On March 5, 2004, after Minor N believed that she might be pregnant, she prepared a detailed written statement for one of the Warrenville correctional officers describing Mathias' misconduct. (Def. 56.1 Resp. ¶ 27; Def. Ex. B, Minor N Dep. at p. 22.) Minor N testified that when she informed the staff at Warrenville that she might be pregnant with Mathias' baby, the "administrators," wanted her to say that she was pregnant with Duff's baby instead. (Def. 56.1 Resp. ¶ 20.) That same day, after receiving a copy of Minor N's written statement, Hartigan interviewed her. (Pl. 56.1 Resp. ¶ 33; Def. 56.1 Resp. ¶ 27.) At Hartigan's request, Mendoza was also present during this interview. (Pl. 56.1 Resp. ¶ 33; Def. 56.1 Resp. ¶ 28.) While Minor N remembers that Warden Bargar and Defendant Miller were present as well, Mendoza does not recall Bargar or Miller being present during the interview at any time. (Def. 56.1 Resp. ¶ 28.) During the interview, Hartigan asked Minor N various questions about her allegation that Mathias sexually assaulted her, including when it occurred, what time it occurred and where it occurred. (Pl. 56.1 Resp. ¶ 34.) In response to Hartigan's questions, Minor N gave vague answers and did not provide any specific details. (Pl. 56.1 Resp. ¶ 34.) Hartigan and Miller reviewed the relevant security tapes but could not find any evidence on them to corroborate Minor N's allegation. (Def. 56.1 Resp. ¶¶ 29, 30; Ex. E ¶. 83-84.) During the interview, when Hartigan told Minor N that he did not see anything on the security tapes she told him that she had fabricated the whole thing. (Pl. 56.1 Resp. ¶ 35; Def. 56.1 Resp. 29.)*fn6 Mendoza was present when Minor N recanted her allegation against Mathias. (Pl. 56.1 Resp. ¶ 36.) After Minor N orally recanted, she signed a written statement saying that "[a]fter some thinking and talking to Mr. Hartigan, I have come to the decision that my mind made me believe that I had done the things with Mr. Mathias when I did not." (Pl. 56.1 Resp. ¶ 37; Def. 56.1 Resp. ¶ 32.)

Plaintiff Minor T

Plaintiff Minor T was an inmate at Warrenville in 2002 and again in 2003 for six months and was then released. (Pl. 56.1 Resp. ¶ 39.) During her second stay at Warrenville, Minor T worked in the kitchen under Duff's supervision. (Pl. 56.1 Resp. ¶ 40; Def. 56.1 Resp. ¶ 2.) After working in the kitchen for about a month, Duff began to talk to Minor T about personal topics such as his sex life, his wife and his kids; however, Minor T never told the staff at Warrenville about these inappropriate conversations. (Pl. 56.1 Resp. ¶ 41, 42.) At some point, Duff began "physically touching" Minor T. (Pl. 56.1 Resp. ¶ 43.) Minor T did not notify any of the Warrenville staff that Duff was inappropriately touching her. (Pl. 56.1 Resp. ¶ 44.) One day while Minor T was working in the kitchen with Duff, he digitally penetrated her vagina while the two were in the chip room of the pantry. (Pl. 56.1 Resp. ¶ 45.) No one was present at the time of this incident. (Pl. 56.1 Resp. ¶ 46.) Minor T did not tell anyone what happened. (Pl. 56.1 Resp. ¶ 46.) Minor T never filed a grievance regarding this incident and never reported it to any of the staff at Warrenville. (Pl. 56.1 Resp. ¶¶ 46, 47.) On the day that Minor T was paroled from Warrenville, Defendant Miller approached her and questioned her about Duff. (Pl. 56.1 Resp. ¶ 48.) Specifically, Miller asked Minor T if Duff had "ever hurt her." (Pl. 56.1 Resp. ¶¶ 48, 49.) Minor T responded that he had not. (Pl. 56.1 Resp. ¶¶ 48, 49.) Miller asked Minor T if she was lying and she again said "no." (Def. ...


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