United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION
STUART SCOLES, CHIEF MAGISTRATE JUDGE
26th day of September 2016, this matter came on for an
evidentiary hearing at the Newton Correctional Facility in
Newton, Iowa. Plaintiff James Robert Ernst, II, appeared in
person and was unrepresented by counsel. All six individual
Defendants appeared in person and were represented by their
attorney, John T. McCoy.
January 13, 2016, Plaintiff James Robert Ernst, II, filed an
application to proceed in forma pauperis on a civil
rights claim. Attached to the application was a complaint
filed pursuant to 42 U.S.C. § 1983, claiming Defendants
violated Ernst's Constitutional rights. On March 11,
Judge Edward J. McManus granted Ernst's application and
directed the clerk of court to file and serve the complaint
without the prepayment of fees.
filed an answer and affirmative defenses on April 21.
Defendants denied the allegations generally and affirmatively
asserted Ernst had failed to exhaust his administrative
remedies, and Defendants were entitled to qualified immunity.
13, Defendants filed a motion for summary judgment. In an
Order filed on June 21, Judge McManus dismissed all of
Ernst's claims, except one. Judge McManus concluded that
"[t]here exists a genuine question of fact as to whether
the events surrounding the March 30, 2015, assault of
plaintiff rise to the level of a violation of plaintiffs
civil rights under § 1983 by defendants." In the
same Order, Judge McManus referred the case to me for a
report and recommendation.
January 2, 2015, Plaintiff James Robert Ernst, II, was
arrested, charged with first degree murder, and booked into
the Black Hawk County Jail. According to the booking log,
Ernst reported receiving death threats.
HE HAS BEEN RECEIVING DEATH THREATS -BELIEVES SOME OF THEM
INITIATED FROM INMATES INCARCERATED HERE. HE ONLY HAS GANG
NAMES - NO GIVEN NAMES.
Log, 01/02/2015 (Plaintiff's Exhibit 3). Ernst's
victim, Orintheo Campbell, Jr., was a member of the Black
Flag Mafia, a gang in Waterloo. It was believed gang members
posed a threat to Ernst's safety. Because of the threats,
Ernst was placed in "A pod" in protective custody.
to Captain Mark Herbst, one of the defendants in this case,
jail officials knew some of the gang members being housed at
the jail, but not all. On January 10, a "keep
separate" entry was added to the booking log, which
BLACK FLAG MAFIA MEMBERS - CHRIS ROBY, NATHANIEL MATLOCK,
PERQUONDIS HOLMES, DEVATE EWELL (VICTIM IN HIS CASE IS
ORINTHEO CAMPBELL JR. WHO IS BLACK FLAG).
Log, 01/10/2015 (Plaintiff's Exhibit 3).
Herbst, who is employed by the Black Hawk County
Sheriff's Office as jail administrator, testified that
one of the "fundamental responsibilities" of the
jail is "to keep inmates safe." Because of the
reported threats, Ernst was placed in protective custody in
Unit A-2. Herbst explained that protective custody is not
intended to be punitive, but instead is intended to keep an
inmate separate from other inmates for the inmate's own
safety. While in A-2, an inmate is only released from his
cell for one hour a day; and when the inmate is out of his
cell, he has no contact with other inmates. The type and
number of personal items permitted an inmate in A-2 is also
February 3, Ernst submitted a written complaint that he had
contact with another inmate in A pod when they were both
exercising visitation. According to the booking log, however, on
February 6, Ernst requested to be moved out of A-2 and into a
less restrictive setting. Ernst was told he was in protective
custody, but the staff member making the entry in the booking
log indicated he "would ask." Ernst advised the
staff member that "he wanted a complaint form instead;
stated he'd already asked." Ernst men filed a written
complaint asking to be moved and wrote that he "[n]ever
asked to be placed in A-2 or under protective
custody." (This was just three days after Ernst
complained about having contact with another prisoner.)
days later, on February 8, a booking log entry indicates that
Ernst's classification status was reviewed, but due to
continuing threats, he remained on protective custody status.
On the same day, Ernst filed an inmate request form, advising
jail staff that he had "found out" that the gang
was "Black Flag, " which included Chris Roby and a
couple of other persons. One of the deputies responded on
February 9, stating:
You have keep separates already in your log for Chris Roby,
Nathaniel Matlock, Perquondis Holmes, & Devate Ewell
("Red"). So you will not have contact with those
individuals and they won't have any contact with you as
long as you are in jail. If there are others that aren't
listed, fill out another kyte with those names on it so we
can get them entered into the computer.
Request Form, 2-8-15 (Plaintiffs Exhibit 1). Also on February
9, another "keep separate" entry was made into the
booking log, identifying Orintheo Campbell, Sr., the father
of Ernst's victim.
Herbst testified that he continued receiving complaints about
Ernst being housed in Unit A-2. Ernst and his attorney
claimed that Ernst's civil rights were being violated.
The State Ombudsman was investigating Ernst's complaints.
Herbst testified he was "trying to walk a very fine
line" between what Ernst believed was a violation of his
civil rights and Herbst's duty to keep Ernst safe.
According to Herbst, he knew "full well that there was
probably some legitimacy as to what [Ernst] was saying about
his safety." ...