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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.

 Undisputed Facts

  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 ¶ 2.

  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, 36.

  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, 91-96.

  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 69-75.

  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, 89-91, 96-106.

  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 26-27'.

  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 Hurst.

  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 at 33.

  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 42-43.

  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 7-12, 21.

  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 employment. Ex.39.

  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. at 5-7.

  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 quotations omitted).

  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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