United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Plaintiff Bradley Kocsis, currently an inmate at the Hutchinson Correctional Facility, brings this action against defendants Robert Hinshaw, the Sedgwick County Sheriff during plaintiff's incarceration at the Sedgwick County Detention Center (the "County Jail"); Jeff Easter, the current Sedgwick County Sheriff; Sedgwick County, Kansas (collectively, "the Sedgwick County defendants"); and defendant David E. Kendall, then a detention deputy at the County Jail. Plaintiff brings a claim against defendants pursuant to 42 U.S.C. § 1983 and negligence claims under the Kansas Tort Claims Act.
The Sedgwick County defendants filed a Motion to Dismiss or Strike (Doc. 13) and a Motion for Summary Judgment (Doc. 15). Defendant Kendall brought a Motion to Dismiss or (Alternatively) Motion for Summary Judgment (Doc. 17), which incorporates the Sedgwick County defendants' motions. Plaintiff filed a Motion for Leave to Amend Complaint (Doc. 27). The court first considers defendants' motions for summary judgment.
Plaintiff alleges that, on April 15, 2012, he was subjected to unwanted sexual contact by defendant Kendall while plaintiff was a prisoner at the County Jail. (Doc. 1 at 2, ¶ 1.) While the details of the incident are immaterial to resolve the issues currently before the court, the immediate aftermath, as alleged by plaintiff, is relevant:
When Deputy Kendall got off of Mr. Kocsis, Mr. Kocsis turned over and saw Deputy Kendall's exposed penis-which was slightly larger than average. Deputy Kendall told Mr. Kocsis that he had looked at his visitation list, and warned him that if he ever attempted to tell anyone, he would get new charges. Deputy Kendall smugly commented, "who are they going to believe, an inmate or me - a deputy?"
(Doc. 47 at 2.) The evidence in the record indicates that, after the alleged incident, an investigation was apparently conducted-whether by officials at the Jail, the Sheriff's Office, or some other official-and allegedly included an evidentiary sweep of plaintiff's cell, where plaintiff alleged the rape occurred. Plaintiff's blanket was confiscated and plaintiff was examined by a SANE-SART nurse.
On June 19, 2012, counsel for plaintiff wrote then-Sheriff Hinshaw a letter, stating that Kendall had "violently raped" plaintiff and requesting that plaintiff be moved from the County Jail to another jail for plaintiff's protection. At the time, defendant Kendall was still working at the County Jail. On June 20, 2012, the Sheriff's Office wrote plaintiff's counsel, advising that (1) plaintiff would not be transferred out of the jail, and (2) "[i]n compliance with sheriff's office policy, we will certainly maintain and preserve any and all available audio/video recordings, reports, photographs, documents, and evidence associated with this case." (Doc 24-1 at 7.)
On June 22, 2012, plaintiff was physically attacked by an inmate who goes by "Monster B." (Doc. 24-1 at 8.) On June 23, 2012, plaintiff's counsel wrote another letter to Sheriff Hinshaw, wherein he alleged that "Monster B called [plaintiff] a faggot' and Snitch, ' as he proceeded to slam his head repeatedly against concrete." ( Id. ) Plaintiff's counsel again requested that plaintiff be transferred to another jail. On June 25, 2012, the following occurred: (1) plaintiff's counsel again contacted Sheriff Hinshaw by letter, (2) plaintiff's counsel sent a letter to the Federal Bureau of Investigation and United States Attorneys' Office, requesting assistance with the issues counsel had raised on plaintiff's behalf, and (3) plaintiff submitted a written grievance to the County Jail, which reads:
i dont feel that it is fair to me or the other inmates in my pod that i only get to come out for three hours a day thats not fair for me that i get punished for what a jail deputy did to me and i dont think its fair that 2 of my hours out take up the pods dayroom time i don't feel safe in this jail please have me moved please.
(Doc. 32-2 at 38.)
On July 24, 2012, plaintiff's counsel sent an Official Notice of Claim to the Sedgwick County clerk pursuant to K.S.A. § 12-105b ("Notice of Claim"). Plaintiff was transferred to his current correctional facility on September 4, 2013.
II. Legal Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the record's evidence and reasonable inferences in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 ...