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Keith v. Koerner

United States District Court, D. Kansas

November 18, 2014

TRACY KEITH, Plaintiff,

For Tracy Keith, Plaintiff: John W. Kurtz, Hubbard & Kurtz, L.L.P., Kansas City, MO.

For Richard D. Koerner, TCF Warden (former), Defendant: John Wesley Smith, LEAD ATTORNEY, Office of Attorney General - Topeka, Topeka, KS.


Daniel D. Crabtree, United States District Judge.

This matter comes before the Court on defendant Richard Koerner's Motion for Summary Judgment (Doc. 72). Having considered the arguments of the parties and the relevant authorities, the Court denies the motion. This order explains why.

I. Procedural History

Plaintiff, once an inmate in the custody of the Kansas Department of Corrections (" KDOC") and imprisoned at its Topeka Correctional Facility (" TCF"), has sued under 42 U.S.C. § 1983. She asserts that defendants violated her rights under the Eighth Amendment. Originally, she named six defendants but the Court dismissed the claims against all of them except defendants Ananstacio Gallardo[1] and Richard Koerner. ( See Doc. 25) Defendant Koerner served as the Warden of TCF during plaintiff's incarceration there.

Defendant Koerner moved to dismiss, arguing in part that Kansas's two-year statute of limitations, K.S.A. § 60-513, bars plaintiff's claims against him. The Court denied his motion, holding that " plaintiff ha[d] asserted sufficient facts to justify applying the tolling provision to survive a motion to dismiss." (Doc. 25 at 10 (citation omitted)) Defendant Koerner asked the Court to certify the statute of limitations issue for an interlocutory appeal. (Doc. 28) Judge O'Hara recommended that the Court deny the motion because the motion to dismiss did not involve a controlling issue of law, and defendant objected to Judge O'Hara's Report and Recommendation. ( See Doc. 28, 38 at 4-6) Judge Vratil overruled defendant's objections, noting that " the matter involved a question of fact which, on a motion to dismiss, must be resolved in favor of plaintiff." (Doc. 42 (citing Doc. 38 at 5))

After the parties conducted limited discovery, defendant Koerner brought the current motion for summary judgment. It again presents arguments based on the statute of limitations. Plaintiff's response contends that statutory or equitable tolling saves her claims from the otherwise dispositive effect of Kansas's two-year statute of limitations. Defendant's motion does not call on the Court to consider the substantive merits of plaintiff's claim.

II. Facts[2]

Plaintiff was incarcerated at the TCF from November 16, 2006, to May 18, 2010. KDOC employed defendant Ananstacio Gallardo as a maintenance instructor at the TCF. Plaintiff enrolled in a vocational plumbing class taught by defendant Gallardo and on October 2, 2007, defendant Gallardo forced plaintiff to engage in sexual intercourse with him. This resulted in a pregnancy. When defendant Gallardo learned that plaintiff was pregnant, he told her: (a) he " would kill anyone responsible if and when his wife found out what had happened; " (b) " I'm going to have someone kill you if my wife finds out; " and (c) " They're not going to believe you anyway."

Fearing she would get in trouble, plaintiff did not alert TCF authorities that Gallardo had raped her or that she was pregnant. On November 15, 2007, KDOC learned about the rape and plaintiff's pregnancy from an anonymous note claiming that plaintiff was pregnant with defendant Gallardo's child. KDOC initiated an investigation immediately and provided independent victim services to plaintiff. Plaintiff contends that the TCF investigator, Mr. Willie Tabor, twice instructed her not to discuss what had happened with anyone: first during his initial investigation on November 15, 2007, and again later, when Topeka police officers interviewed her.[3] In addition to Mr. Tabor's verbal instructions, Tabor also required plaintiff to sign an " Acknowledgement of Confidentiality" form (the " confidentiality agreement"). It provided:

I . . . [h]ereby affirm that I understand that I am not to discuss or divulge any information I have provided, obtained or will obtain in the course of this investigation, including the fact that I have been interviewed regarding this investigation. I understand a breach of confidentiality can result in disciplinary action.

Mr. Tabor had drafted the confidentiality agreement at the direction of defendant Koerner.

Plaintiff claims that she believed Mr. Tabor's instructions forbade her from speaking about Gallardo's rape with " anyone" as long as she was incarcerated. Despite plaintiff's understanding of Mr. Tabor's instructions and the confidentiality agreement, plaintiff concedes she spoke with several people about the experience during her incarceration, including: employees of the Topeka Police Department; employees of the state of Kansas; independent counselors; plaintiff's direct family; her attorney; and a newspaper reporter. Plaintiff believed that this prohibition against speaking with " anyone" did not extend to " anyone [who was] brought in by the facility to speak to me about the incident[, ]" which encompassed all of the aforementioned people with two exceptions: her attorney and the newspaper reporter. (Doc. 73-2 at 313:13-315:17)

Plaintiff believes she never was released from the terms of the written confidentiality agreement.[4] She concedes that sometime before August 10, 2009, an unnamed TCF employee advised her to contact Keen Umbehr, a Kansas attorney, about the rape. Plaintiff acted on this advice, writing Mr. Umbehr a letter within a couple of days of the suggestion and ultimately, she entered into a legal representation contract with Mr. Umbehr on July 30, 2009.

Mr. Umbehr called TCF on August 7, 2009, and requested a meeting with plaintiff. Inmates at TCF are allowed to meet with their attorneys any time after the attorney submits a request to the facility. On August 10, 2009, plaintiff met with Mr. Umbehr and Topeka Capital Journal reporter Tim Carpenter, and they discussed the Gallardo incident. Plaintiff participated in this meeting because she wanted an attorney's advice about what she should or could do. After this meeting on August 10, 2009, the Deputy Secretary of Corrections filed an ethics complaint against Umbehr, which the Kansas Disciplinary Administrator's Office processed over the next two years. The record contains no evidence that Mr. Umbehr took any action on plaintiff's behalf after the meeting on August 10, 2009, or after KDOC's Deputy Secretary filed the ethics complaint against Umbehr.

At some point between November 5, 2007, and December 19, 2007, plaintiff asserts, two TCF inmates kicked her in the stomach and head and other unspecified TCF inmates threatened her. Plaintiff never reported the attack or threats to TCF's staff, and she did not seek available medical care after the attack even though she claims it injured her. In July 2009, plaintiff was moved to the J-Cell House, a different location within TCF, pending resolution of an unrelated matter. And while no inmates threatened plaintiff while she was housed in the J-Cell House, and thus did not fear attack while stationed there, she later asked to return to her previous compound within TCF. Plaintiff explains that she asked to go back to her previous compound so she could return to an industry job that allowed her to make money.

During her entire imprisonment at TCF, plaintiff asserts an " atmosphere of intimidation" existed and it prevented her from filing a lawsuit based on defendant Gallardo's having raped her. Plaintiff defined this " atmosphere" in the following fashion:

[i]t's being in prison, period. There's going to be an atmosphere of intimidation because you're going to have people with power over you, period, beyond what happened to me. There's -- it's intimidating to have someone have control of your life like that. . . . it was scary and intimidating. . . . It's an awful feeling. Factor in what happened to me and how I -- I was completely cut off from everyone even talking to me and -- and people judging me continuously. And, the fear that I've been told one thing by a prison official, which was Lieutenant Tabor . . . . You were not to speak about this to anybody whatsoever. If you do then I'm thinking this is going to happen . . . . there was a[n] overall atmosphere the entire stay.

(Doc. 73-2 at 324:10-325:11) Plaintiff also asserts that she sensed this atmosphere of intimidation based on the following things she believed to be true while incarcerated at TCF:[5]

. the regular practice of punishing prisoners who had filed grievances by placing them into segregation during the investigations;
. the threat of disciplinary action if prisoners discussed or divulged any information about their grievances;
. the communication to her that no one would believe anything that she, as a prisoner, would say;
. the absence of any communication to her at the conclusion of TCF's investigation of the rape; and
. her impression that grievances almost never resulted in any action ...

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