United States District Court, E.D. Pennsylvania
April 13, 2004.
DONNA M. HORAK, Plaintiff,
COUNTY OF BUCKS, et al., Defendant
The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge
AND NOW, this ___ day of April, 2004, upon consideration of Motion of
Defendants County of Bucks, Charles H. Martin, Sandra Miller, Michael
Fitzpatrick, Willlis Morton and Harris Gubernick for Summary Judgment,
pursuantto Fed R. Civ. P. 56, Plaintiff Donna M. Horak's response
thereto, Defendants' Reply, and Plaintiff's Surreply, it is ORDERED that
said Motion is GRANTED based on the undisputed facts set forth below.
The problem, however, appears to be a recurring one. Bucks County's
response has not risen above the level of deliberate indifference.
Failure to take even stronger measures from this point forward could
expose the County and its Commissioners to the risk of liability.
1. Defendant County of Bucks (the "County") is a municipal governmental
entity with two offices in Doylestown, PA. Compl. at ¶ 3.
2. Defendants Charles Martin ("Martin"), Sandra Miller ("Miller"), and
Michael Fitzpatrick ("Fitzpatrick") are the County Commissioners for
Bucks County. Compl. at ¶ 4.
3. Defendant Willis Morton ("Morton") is the Warden of the Bucks County
Correctional Facility ("BCCF"). Compl. at ¶ 5. 4. Defendant Harris Gubernick ("Gubernick") is Director of Corrections
for Bucks County. Compl. at ¶ 5.
5. Plaintiff Donna Horak ("Horak") is a former BCCF inmate. Compl. at
6. Defendant David Rosser ("Rosser") is a former employee of Bucks
County. Compl. at ¶ 6.
7. On July 28, 2003, Rosser pled guilty to Institutional Sexual
Assault, a third degree felony. Compl. at ¶ 20; Rosser Dep. at 18,
8. As of the date of the incidents between Rosser and Horak, the County
of Bucks had issued various rules, including the Standard Operation
Procedures, Code of Ethics, Discipline Policy and Table of Offenses. See
Standard Operation Procedure 4.13; Disciplinary Policy; Table of
Offenses; Rosser Dep. at 45-46, 50-57, 69-75, 91-96, 107-110.
9. The BCCF Code of Ethics establishes professional boundaries, and
expressly prohibits staff from engaging in intimate behavior or
developing romantic relationships with inmates. Rosser Dep. at 45-46,
50-57, 59-75, 91-96.
10. The Code of Ethics further prohibits employees from associating
with inmates or their families and friends, and it requires that any such
contact must be reported. Rosser Dep. at 45-46, 50-57, 69-75, 91-96.
11. The Code of Ethics requires staff members to immediately report any
conduct which threatens the professional operations of the facility.
Rosser Dep. at 45-46, 50-57, 69-75, 91-96.
12. Deputy Warden Mitchell directed that all staff sign off to
acknowledge their receipt of the Code of Ethics. Rosser Dep. at 91. 13. As part of the Code of Ethics, the County also issued a new
Discipline Policy that included a Table of Offenses. Rosser Dep. at
45-56, 50-57, 69-75.
14. The Table of Offenses provides for 64 separate offenses that govern
the conduct of the staff at the BCCF. Rosser Dep. at 45-46, 50-57, 69-75,
15. The Table of Offenses defines the appropriate level and range of
discipline for each offense, with some variation depending on whether the
staff member has committed similar previous infractions. Rosser Dep. at
16. The Table of Offenses provides for sanctions for misconduct, even
if the misconduct does not rise to the level of criminal behavior. Rosser
Dep. at 69-75.
17. Among other things, the Table of Offenses prohibits "inappropriate
physical contact or mistreatment of an inmate, patient, client, resident,
or employee," Rosser Dep. at 69-70; BCDOC14.
18. Similarly, the Table of Offenses forbids "improper or unauthorized
contact with [an] inmate, undue familiarity with inmates, parolees, their
families or friends. Rosser Dep. at 71-72; BCDOC42.
19. The Table of Offenses also prohibits sexual harassment, and
provides penalties against corrections officers who engage in sexual
harassment. Rosser Dep. at 74-75.
20. The BCDOC has issued an Inmate handbook that provides a procedure
for inmates to raise complaints. See Inmate Handbook at 19-20; Rosser
Dep. at 26-27'.
21. In June 2002, the County conducted an in-service training on the
topic of "Professionalism and Ethics for Correctional Staff." See
Materials from the June 2002 in-service on "Professionalism and Ethics for Correctional Staff;" Rosser Dep. at
45-46, 89-91, 96-106; Morton Dep. at 15-16.
22. The in-service in June 2002 consisted of three days of training for
all officers on the following topics: Ethics/Professionalism, First Aid,
CPR, and Fire Suppression. Rosser Dep. at 45-56, 89-91, 96-106.
23. The Ethics/Professionalism class was an eight hour class covering
unethical/inappropriate relationships, sexual harassment, values of
diversity, and reporting of inappropriate relationships. Rosser Dep. at
45-56, 89-91, 96-106.
24. The in-service training in June 2002 was given to all corrections
officers, sergeants, lieutenants, and captains. Morton Dep. at 15-16.
25. The in-service training in June 2002 included a multiple-choice
test, a Power Point presentation, and distribution of documents that
describe the "red flags" and the "myths and realities of staff sexual
misconduct." See multiple-choice test; Power Point presentation.
26. During the in-service training in June 2002, the County distributed
a copy of the criminal statute that sets forth the definition and
elements of the crime of Institutional Sexual Assault. See Copy of
Criminal Law on Institutional Sexual Assault; Rosser Dep. at 45-46,
27. During the in-service training in June 2002, the County distributed
newspaper articles about the criminal prosecutions of former BCCF
employees Peter Doyle, Robert L. Gilmore, William McMullen and Jeffrey
Budd. See newspaper articles; Rosser Dep. at 106.
28. Every staff member in the BCCF was required to attend the
in-service training on professional and ethics, including David Rosser,
in June of 2002. Morton Dep. at 14-17. 29. Rosser began his inappropriate contact with Horak within six months
after he attended the County's in-service training in June 2002. Compl.
at ¶¶ 14-15; Rosser Dep. at 45-46, 89-91, 96-106.
30. During the summer of 2002, the BCCF investigated an allegation of
inappropriate conduct by Officer Seifert Ex. 19.
31. The County suspended Officer Seifert for twenty days as a result of
this report and investigation. Ex. 19 at 1.
32. Officer Seifert was required to sign a Last Chance Agreement as a
condition of her employment following the suspension. Mitchell Dep. at
33. In September 2002, the County investigated an alleged inappropriate
comment by a BCCF mail clerk. See Investigation Report.
34. An inmate raised a complaint of impropriety against Corrections
Officer Thomas, and the BCCF's investigation department investigated the
report. See investigation documents regarding Officer Thomas.
35. Officer Thomas resigned from employment. Ex. 22.
36. The County investigated a report of inappropriate conduct with
regards to Officer Hurst. See investigation documents regarding Officer
37. The County hired David Rosser as a corrections officer in 1987.
Rosser Dep. at 9.
38. Rosser voluntarily resigned from employment in 1988 and he rejoined
the County as a corrections officer in March 1989. Rosser Dep. at 11.
39. In 1993, the County promoted Rosser to sergeant. Rosser Dep. at 10. 40. In July, 2002 after passing an oral and written examination, Rosser
was promoted to lieutenant. Rosser Dep. at 56, 112-13.
41. The County trained Rosser when it first hired him as a corrections
officer. Rosser Dep. at 10.
42. At the time he was hired, Rosser received approximately three weeks
in-house training with Lieutenant Hafler and approximately four weeks
training at Camp Hill. Rosser Dep. at 10.
43. After being promoted to sergeant, Rosser received additional
training, part of which focused on sexual harassment in the workplace.
44. In June 2002, Rosser attended and participated in the in-service
training course, which included eight hours of training on
professionalism and ethics. Rosser Dep. at 45-46, 89-91, 96-106.
45. Rosser received a certificate of achievement for having
successfully completed the in-service training course. Rosser Dep. at
90. See Copy of Certificate of Achievement Awarded to Sgt. David Rosser,
dated June 25, 2002.
46. On June 27, 2002, Rosser achieved a score of 96% on his
"Professionalism and Ethics for Correctional Staff written examination.
Rosser Dep. at 103-05; See Ex. 15; See Rosser's answer sheet.
47. In June 2002, Rosser received the County's Code of Ethics, he read
it, and he agreed with its prohibition against sexual relationships
between inmates and guards. Rosser Dep. at 45-46, 50-57, 91-96. 48. On or about June 26, 2002, Rosser signed an acknowledgment that he
received the Code of Ethics. Rosser Dep. at 90-91; See Rosser's
acknowledgment of receipt of the Code of Ethics, dated June 26, 2002.
49. Shortly after he received the Code of Ethics from the Warden in
June 2002, Rosser read the Code of Ethics. Rosser Dep. at 46, 91-96.
50. At the time of his inappropriate relationship with Horak, Rosser
knew that it was illegal to have any sexual contact with an inmate.
(Rosser Dep. at 19-20, 28-29, 45-46, 83-84, 87-89, 91-96, 107-08, 110;
See Sentencing Hearing of David Rosser before the Honorable Judge Kenneth
G. Biehn, dated July 28, 2003 [herein "Sentencing Hearing"], at 33.
51. At the time of his inappropriate relationship with Horak, Rosser
also knew that his conduct with Horak violated the BCCF's work rules, the
BCCF's Codes of Ethics, the BCCF's Discipline Policy, and was grounds for
discharge from employment. Rosser Dep. at 28-29, 45-56, 83-84, 87-89,
91-96; Compl. at ¶ 18.
52. At the time of his relationship with Horak, Rosser knew his conduct
was a crime and constituted grounds for discharge, even if Horak
consented to the relationship. Rosser Dep. at 19-20, 28-29, 45-46, 83-84,
87-89, 91-96, 107-08, 100.
53. At the time that Rosser engaged in the inappropriate relationship
with Horak, Rosser was aware that the County had terminated and
prosecuted former employees Doyle, Gilmore, McMullen and Budd for engaging
in Institutional Sexual Assault. Rosser Dep. at 14, 64-65, 82-83; See
Sentencing Hearing at 32.
54. Horak was incarcerated at BCCF from January 10, 2002 until June
30, 2002 and again from October 18, 2002 to June 20, 2003. Compl. at
¶ 2. 55. The sexual activity between Horak and Rosser occurred in the
lieutenants' office located outside the module (A Module) where the
female inmates were housed. Horak Dep. at 45; Rosser Dep. at 77.
56. The physical contacts between Rosser and Horak began in December
2002 and ended when Horak was transferred to the Women's Community
Correction Center in February 2003. Rosser Dep. at 61.
57. During the relationship, Rosser sent greeting cards to Horak signed
under a fictitious name ("Sue Grimes"), which sometimes included money.
Horak Dep. at 53-57, 98-100; Compl. at ¶ 16; Sentencing Hearing at 33;
See copies of the cards and envelopes sent under the name "Sue Grimes."
58. Rosser told Horak that if she were asked about their meetings in
the lieutenants' office, she should say that they met to speak about her
misconducts or to discuss what would happen to her property if she were
to be transferred to the state prison. Horak Dep. at 46-47.
59. Rosser asked Horak to keep the relationship a secret. Compl. at
¶ 18; Horak Dep. at 83-84; Rosser Dep. at 58, 66; Sentencing Hearing
60. Rosser told Horak "that if you say anything I could be in a cell
next to Doyle in the state penitentiary." Horak Dep. at 52.
61. Horak never complained to anyone in the prison about Rosser. Horak
Dep. at 81.-84.
62. With respect to the greeting cards, Rosser signed a fictitious name
because (1) he was "afraid" that if he had signed his own name, that he
would have been caught, and (2) he "feared" that otherwise he would lose his job and be arrested. Rosser Dep.
at 41-43, 84-87; Sentencing Hearing at 33; Compl. at ¶ 16.
63. Rosser would deposit the greeting cards in a mailbox in Chalfont,
PA and he made up a fictitious return address in Chalfont. Rosser Dep. at
64. On March 24, 2003, County Detectives Kemmerer and Potts met with
Horak in the Women's Community Correction Center to discuss her
relationship with Rosser. Horak Dep. at 29-137; Sentencing Hearing at
7-12; Compl. ¶¶ 19-20.
65. Horak initially denied the existence of any relationship with
Rosser. Horak Dep. at 30-32.
66. On March 25, 2003, Horak again met with the detectives and informed
them of her relationship with Rosser. Horak Dep. at 33-36.
67. At the direction of the detectives, Horak telephoned Rosser and
their conversation was recorded in an effort to obtain an admission from
Rosser as to his actions. Horak Dep. at 37, 43.
68. During the course of the recorded conservation, Rosser acknowledged
his inappropriate sexual relationship with Horak. Sentencing Hearing
7-12; Horak Dep. at 36-44.
69. On April 1, 2003, Detectives Kemmerer and Potts interviewed Rosser
at the Bucks County District Attorneys Office. Sentencing Hearing at
70. Rosser admitted both verbally and in written statements to
Detectives Kemmerer and Potts that he had engaged in an inappropriate
relationship with Horak.
71. On or about April 1, 2003, the County placed Rosser on a leave of
absence without pay pending investigation. Ex. 38. 72. On April 2, 2003, the County charged Rosser with the crime of
Institutional Sexual Assault. Compl. ¶ 20.
73. On or about July 17, 2003, the County terminated Rosser's
74. On July 28, 3002, Rosser pled guilty to Institutional Sexual
Assault, a felony of the third degree. Rosser Dep. at 18, 36; Sentencing
Hearing at 2-3; Compl. at ¶ 20.
75. Judge Biehn imposed a sentence on Rosser of 11-1/2 to 23 months
to be served on house arrest and 300 hours of community service.
(Sentencing Hearing at 35-37; Rosser Dep. at 66-67.
76. Judge Biehn's sentence was within the aggravated range because of
Rosser's position as a lieutenant, his awareness that this had happened
to others, and the further disgrace that he caused the correctional
facility. Sentencing Hearing at 36-37; Compl. at ¶ 20.
77. Lieutenant Diamente first learned of the Rosser investigation after
it became public in the newspapers. Diamente Dep. at 10.
78. Officer Barats worked in A Module when Horak was incarcerated, and
Officer Barats never saw any inappropriate conduct by Rosser. Barats Dep.
79. Officer Barats became aware of Rosser's termination by reading
about it in the newspapers. Barats Dep. at 7-9.
80. Officer Poulson worked on A Module during Horak's incarceration,
and she never heard or knew that Rosser and Horak were engaged in an
inappropriate relationship. Poulson Dep. at 9-10. 81. Officer Heilman occasionally saw Rosser and Horak speaking for as
long as twenty minutes, she heard Rosser occasionally call for Horak to
come to the lieutenant's office to discuss her green slips, and she
thought they were friends. Heilman Dep. at 10-12, 21-22.
82. Officer Heilman did not believe that Rosser's conduct was out of
the ordinary or strange because his job required him to walk the blocks,
and it was common for sergeants, lieutenants and captains to "call out"
inmates to discuss green slips. Heilman Dep. at 11-12, 21-22, 27-28.
83. Officer Heilman was never aware of inappropriate contacts between
Rosser and Horak until she read about his conviction in the newspapers.
Heilman dep. at 21-22.
84. In November 2002, deputy Warden Mitchell "forewarned" Rosser in
response to a County investigator's report of a rumor to Mitchell that
Rosser was spending time in A Module talking with Horak. Mitchell Dep. at
14-19, 33, 36; See e-mail written by Deputy Warden Mitchell, dated
November 4, 2002.
85. On November 4, 2002 Deputy Warden Mitchell asked Rosser if he was
spending an inordinate amount of time in A Module because he had heard a
rumor to that effect. Mitchell Dep. at 18.
86. Rosser responded to Deputy Warden Mitchell that he tours all the
modules, that he may have spoken with Horak, but he denied spending extra
time with her. Mitchell Dep. at 18-19.
87. Deputy Warden Mitchell then "forewarned" Rosser about his
responsibilities, told Rosser about the danger of "appearances," and he
instructed Rosser that he should spend an equal amount of time on his
various duties. Mitchell dep. at 19. Conclusions of Law
1. Based on the foregoing measures taken by the County to train its
employees with respect to institutional sexual assault-and the
effectiveness of that training as evidenced by Defendant Rosser's
admitted attempts to keep his relationship with Plaintiff
secret-Plaintiff here cannot establish the deliberate indifference
necessary to survive summary judgment on its Eighth Amendment claim under
42 U.S.C. § 1983 against the Defendant County of Bucks. See Monell v. New
York Dep't of Social Serv., 436 U.S. 658, 691-94 (1978) (municipal
liability under § 1983 can only be established when constitutional
violation is caused by the execution of an official policy or custom);
Carter v. City of Philadelphia. 181 F.3d 339, 356-57 (3d Cir. 1999) (to
prove the existence of an official policy or custom based on inadequate
training or supervision, a plaintiff must show "deliberate indifference"
to the rights of potential victims on the part of the municipality).
2. With respect to Defendants Martin, Miller, Fitzpatrick, Morton, and
Gubernick, Plaintiff has failed to raise sufficient evidence to meet the
stringent standard of deliberate indifference for supervisory liability.
First, Plaintiff has produced no evidence that any of these individual
Defendants knew or were aware of and disregarded an excessive risk posed
specifically by Defendant Rosser to Plaintiffs health or safety.
Beers-Capitol v. Whetzel, 256 F.3d 120, 135 (3d Cir. 2001). Second,
Plaintiff has produced no evidence that any of these Defendants were
aware of or indifferent to an unreasonable risk of Eighth Amendment
injury generally created by the County's allegedly deficient policies of
training and supervision. Id.
3. Plaintiff's First and Fourteenth Amendment claims are properly
analyzed under the Eight Amendment and, therefore, must also fail.
See, e.g., Collins v. City of Marker Heights. 503 U.S. 115, (1992) (noting that the Due Process Clause should not be
interpreted to impose federal duties analogous to those imposed by state
tort law): Barney v. Pulsipher, 143 F.3d 1299, 1310 n. 10(10th Cir. 1998)
("[A]lthough plaintiffs generally invoke other constitutional amendments
in their complaints, their claims concerning conditions of confinement
remain bounded by the Eighth Amendment, the explicit textual source of
constitutional protection in the prison context") (citations and
4. Having granted summary judgment on the federal claims, this court
exercises its discretion to dismiss without prejudice Plaintiff's state
law claims against the County Defendants, contained in Counts II and III
of the Complaint, pursuant to 28 U.S.C. § 1367(c)(3).
AND NOW, this 13th day of April, 2004, it is hereby ORDERED that
judgment is entered in FAVOR of Defendants County of Bucks, Charles H.
Martin, Sandra Miller, Michael Fitzpatrick, Willlis Morton and Harris
Gubernick and AGAINST Plaintiff.
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