United States District Court, N.D. Iowa, Eastern Division
December 9, 2016
JAMES ROBERT ERNST, II, Plaintiff,
BLACK HAWK COUNTY JAIL, SGT. STAINBROOK, TONY SHADER, CAPTAIN HERBST, DEPUTY FROST, DEPUTY SEECH and VANDER ZWAAG, Defendants.
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." On February 25, 2015, Ernst was afforded
additional privileges which were not generally available to
other inmates housed in A-2.
March 16, Ernst was taken off protective custody status and
placed in Unit A-3 "to start." Two more "keep
separate" entries were entered in the booking log. A
"keep separate" entry on March 17 identifies
Trivansky Swington. A "keep separate" entry on
March 23 states:
KEEP SEPARATE FROM ANTONIO CAMPBELL HE IS THE COUSIN OF
ERNST'S MURDER VICTIM.
Log, 03/23/2015 (Defendants' Exhibit C).
March 25, Ernst submitted a written request to go to
"gp" (general population). Ernst was moved from A-3 to
the "D pod." Five days later, after receiving a
call from Ernst's attorney, jail staff discovered that
another of Campbell's cousins was in D pod.
WITH ROBERT CAMPBELL. COUSIN OF HIS MURDER VICTIM. MOVED TO F
POD FROM D POD. K/S ENTERED WITH ROBERT CAMPBELL, COUSIN OF
HIS MURDER VICTIM. HIS LAWYER ALSO CALLED AND WANTED HIM
MOVED OUT OF D POD DUE TO CAMPBELL.
Log, 03/30/2015 (Defendants' Exhibit C).
Adam Stainbrook, one of the Defendants in this case,
authorized Ernst's transfer out of D pod. Deputy Levi
Frost, another Defendant in this case, was the "housing
officer" in D pod on March 30, and was responsible for
determining where Ernst would be moved. Frost reviewed
Ernst's booking log and found the "keep
separate" entry on January 10. The computer screen
showed "keep separate" and identified "BLACK
FLAG MAFIA MEMBERS - CHRIS ROBY." See
Plaintiffs Exhibit 2. The screen had a "scroll bar,
" however, which allowed Frost to scroll to the right,
revealing a second name - Nathaniel Matlock. According to
Frost, it was not possible to scroll over further, nor did
the software allow Frost to "click" on the bar in
order to "drill down" to the original entry. Ernst
testified that he told Frost he preferred to stay in D pod
because he "already knew who to look for, " but
Frost told Ernst that he had "looked into it and said
everything is fine" on F pod.
Frost acknowledged that he knew on March 30 that additional
information could be found at a different place in the
booking log. That is, if he had looked at a different screen,
Frost would have seen the names of Perquondis Holmes and
Devate Ewell. According to Frost, however, that would have
taken "several extra steps." Frost decided that
Ernst would be moved to F pod.
approximately 3:00 p.m. on March 30, 2015, Deputy Tony
Shader, another Defendant in this case, was working as a
"rover" at the Black Hawk County Jail. Shader
escorted Ernst from D pod to F pod and told Ernst to report
any problems. Deputy Joseph Siech, another Defendant, was the
shift officer in F pod when Ernst arrived. Siech assigned
Ernst a cell in Unit F-3. Inmates housed in F-3 are permitted
to use the day room in Unit F-2, although it is necessary to
be "buzzed" through a locked door.
approximately 3:15 p.m., Ernst entered the F-2 day room and
proceeded directly to the telephone on the far side of the
room. (There was a telephone in F-3, but Ernst testified he
was going to the day room in any event.) While he was on the
phone, Ernst was assaulted by Perquondis Holmes (one of the
persons listed on the "keep separate" entry on
January 10) and Taevon Washington. Ernst did not know Holmes
prior to these events and, in fact, did not know any of the
persons on the "keep separate" list. A video
recording of the assault was introduced as Defendant's
Jordan Vander Zwaag, another Defendant in this case, was the
officer on duty in F pod when the assault occurred. The video
recording shows that Vander Zwaag intervened in the assault
within four or five seconds after it began. Within another
ten seconds or so, Vander Zwaag successfully separated Ernst
from his assailants. Additional deputies arrived, Ernst
returned to his cell, and Holmes and Washington were removed
from the unit.
did not offer any evidence regarding the nature and extent of
his injuries. However, Defendants' Exhibit E includes a
report from Deputy Heather Dolan, who was called to take
photographs of Ernst, Holmes, and Washington. The photographs
were not introduced as exhibits at the hearing, but Dolan
described Ernst's injuries as follows:
James Ernst had three scratches located on his left arm just
above the elbow, a large scrape on his right knee, and on his
right eye there was a small bruise underneath it and bruising
near the outer corner portion.
Report of Deputy Heather Dolan (Defendants' Exhibit E).
There is no indication Ernst saw a nurse or received any
treatment. Holmes was given a band-aid because of a small
scratch on his hand.
following day, March 31, jail staff entered individual
"keep separate" notes for each of the persons named
in the January 10 note, and added Taevon Washington.
underlying Ernst's claim is well-established. The
"cruel and unusual punishments" clause of the
Eighth Amendment requires, among other things, that prison
officials must "take reasonable measures to guarantee
the safety of the inmates." Farmer v. Brennan,
511 U.S. 825, 832 (1994). This includes a duty "to
protect prisoners from violence at the hands of other
prisoners." Id. at 833. While the Eighth
Amendment applies only to convicted prisoners, the Due
Process Clause of the Fourteenth Amendment provides rights
which are "at least as great as the Eighth
Amendment protections available to a convicted
prisoner." Walton v. Dawson, 752 F.3d 1109,
1117 (8th Cir. 2014) (italics in original). Indeed, Captain
Herbst, who is the jail administrator, conceded at trial that
one of the "fundamental responsibilities" of the
jail is "to keep inmates safe."
under the Eighth or Fourteenth Amendments has two components.
First, the inmate must be incarcerated "under conditions
posing a substantial risk of serious harm."
Farmer, 511 U.S. at 834. This is an objective test.
The second requirement is subjective. That is, a prison
official must have a "sufficiently culpable state of
mind." Id. See also Chavero-Linares v. Smith,
782 F.3d 1038, 1041 (8th Cir. 2015); Edwards v.
Byrd, 750 F.3d 728, 733 (8th Cir. 2014).
the first requirement - an objective finding that Ernst's
placement in F pod posed a substantial risk of serious harm -
is easily met. Ernst's victim was a member of the Black
Flag Mafia gang. Ernst was placed in the same housing unit as
Perquondis Holmes, a known member of the Black Flag Mafia
gang and an individual identified on the "keep
second requirement - that the jail officer have a
"sufficiently culpable state of mind" - presents a
closer question. The Court must determine whether jail
officials acted with "deliberate indifference" in
placing Ernst in an objectively dangerous position. Mere
negligence will not establish liability. Farmer, 511
U.S. at 835 ("Deliberate indifference describes a state
of mind more blameworthy than negligence."). It is not
necessary, however, that a jail official's actions be
intentional. Id. (Deliberate indifference "is
satisfied by something less than acts or omissions for the
very purpose of causing harm or with knowledge that harm will
result.") "With deliberate indifference lying
somewhere between the poles of negligence at one end and
purpose or knowledge at the other, the Courts of Appeals have
routinely equated deliberate indifference with
recklessness." Id. at 836.
petitioner in Farmer was transsexual. The petitioner
was initially placed in administrative segregation at a
federal prison, but then moved to general population.
Petitioner voiced no objection, but within two weeks was
beaten and raped by another inmate in petitioner's cell.
Petitioner was then returned to segregation. The district
court granted summary judgment to the respondents, and die
Court of Appeals affirmed. The Supreme Court reversed,
however, and remanded die case for furmer proceedings. The
Court held that "a prison official may be held liable
under die Eighth Amendment for denying humane conditions of
confinement only if he knows mat inmates face a substantial
risk of serious harm and disregards mat risk by failing to
take reasonable measures to abate it." Id. at
847. The Court remanded for further proceedings because the
district court denied the petitioner's Rule 56(f) motion
for additional time to gather evidence to support his
Schoelch v. Mitchell, 625 F.3d 1041 (8th Cir. 2010),
an inmate attacked the plaintiff, a fellow pretrial detainee,
leaving Schoelch with facial injuries that required surgery.
Id. at 1043. Schoelch brought an action against a
jail employee, alleging he failed to protect Schoelch from
the other inmate. The other inmate had a reputation for
"aggressiveness and misbehavior." Id. at
1044. Despite threats made toward Schoelch by the other
inmate, the jailer opened Schoelch's cell, where Schoelch
was promptly assaulted by the other inmate. The incident
lasted "maybe a couple seconds, " and ended when
another inmate intervened. A few weeks later, Schoelch was
assaulted again by the same inmate in the lunch room.
Schoelch suffered several facial fractures and lost teeth in
the attack. In affirming the district court's grant of
summary judgment in favor of the defendants, the Court of
Appeals summarized the applicable law as follows:
The Eighth Amendment requires officials to "provide
humane conditions of confinement" by taking reasonable
steps to protect inmates convicted of crimes from assault by
other inmates. Schoelch's custodians had a comparable
duty to protect Schoelch as a pretrial detainee, although
this duty arose under the Due Process Clause of the
Fourteenth Amendment. To prove unconstitutional failure to
protect from harm, Schoelch must show (1) an
"objectively, sufficiently serious" deprivation,
meaning that he was incarcerated under conditions posing a
substantial risk of serious harm, and (2) that the defendant
was deliberately indifferent to the substantial risk of
serious harm. The second requirement is a subjective test;
the defendant must be "aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference."
Id. at 1046 (citations omitted).
Court concluded that Schoelch presented no evidence that he
suffered any injury as a result of the first incident.
Regarding the second incident, the Court concluded that there
was "insufficient evidence to establish that [the guard]
was deliberately indifferent to a substantial risk of serious
harm to Schoelch on that date." Id. at 1047.
The Court noted that during the two weeks between the first
and second incidents, Schoelch and the other inmate
"recreated, dined, and resided together" in the
same unit without incident. Schoelch had not requested a
transfer from the unit or otherwise suggested to anyone that
the other inmate posed a threat.
believe the facts in this case are distinguishable from those
in Schoelch. Here, jail officials had actual
knowledge that persons being held in the jail posed a threat
to Ernst's safety. At least eight individuals were placed
on a "keep separate" list, as well as all Black
Flag Mafia gang members generally. Perquondis Holmes, who was
placed on the keep separate list shortly after Ernst was
booked in, assaulted Ernst within minutes after Ernst was
placed in F pod. Deputy Frost, who was responsible for
determining where Ernst would be moved, admitted he knew that
threats had been made against Ernst, and he knew that various
inmates had been placed on a "keep separate" list.
Nonetheless, Frost made only a half-hearted effort to
determine whether any of those "keep separate"
inmates were being housed in F pod. Frost acknowledged that
when he decided to place Ernst in F pod, he could have looked
at a different screen which would have shown all of the
persons on the keep separate list, but explained it would
have taken "several extra steps." I believe
Frost's failure to take those "extra steps" is
more than merely negligent. I believe it displays
recklessness and deliberate indifference to Ernst's
Frost admitted he was aware of threats made against Ernst.
Furthermore, Frost was told on the day of the incident that
Ernst was being moved because one of his victim's
relatives was housed in the same pod. Frost admits he
understood the importance of placing Ernst in a housing unit
where he would not have contact with potential threats.
Nonetheless, Ernst was assigned to F pod, which also housed
Perquondis Holmes, one of the persons listed on the
"keep separate" entry on January 10.
argue they are protected by the doctrine of qualified
immunity. "Qualified immunity protects state actors from
civil liability when their conduct does not violate
'clearly established statutory or constitutional rights
of which a reasonable person would have known.'"
Kahle v. Leonard, 477 F.3d 544, 549 (8th Cir. 2007)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Here, Defendant's Fourteenth Amendment
obligation to protect prisoners from violence at the hands of
other prisoners was well-established at the time of this
incident. Furthermore, as set forth above, the evidence
established that Deputy Frost violated Ernst's Fourteenth
Amendment rights by placing him in a housing unit with a
known threat. Accordingly, qualified immunity does not
provide Frost with a safe harbor.
immunity under similar circumstances was discussed by the
Court in Walton v. Dawson, 752 F.3d 1109 (8th Cir.
2014). Because a jailer did not lock the cell doors at night,
another inmate was able to enter Walton's cell and leave
him "physically bloodied and emotionally bruised."
Id. at 1114. The Court reviewed the duty of jail
officials to protect Walton - a pretrial detainee - from
harm. Walton did not sue the jailer directly, but sued the
jail administrator for failing to properly train. The Court
affirmed the trial court's denial of qualified immunity
for die jail administrator.
also argue that Ernst failed to exhaust his administrative
remedies. In this case, however, Ernst's complaints were
not of an ongoing nature. In other words, before Ernst could
sue in federal court regarding the conditions of his
detention, it would be necessary to first and seek
administrative relief. However, Ernst's complaint in this
case is founded on a single incident when a decision was made
to place him in a housing unit with a known threat. As a
consequence, he was assaulted. No after-the-fact remedy is
available. Any request for "administrative relief"
would have been meaningless. Accordingly, under these
circumstances, it was not necessary for Ernst to first seek
summary, I believe Deputy Frost violated Ernst's
Fourteenth Amendment rights by placing him in the same
housing unit with Perquondis Holmes. Frost knew there were
threats made against Ernst, and knew there was a list of
persons from whom Ernst should be kept separate. Nonetheless,
Frost took only half-measures in determining whether placing
Ernst in F pod would constitute a danger, despite knowing
that additional information could be obtained by taking
"several extra steps" on the computer. Because the
evidence shows Frost violated Ernst's clearly established
constitutional rights, qualified immunity is inapplicable.
Furthermore, there was no administrative relief which Ernst
could obtain. Therefore, I believe judgment should be entered
in favor of Ernst and against Frost. Due to the quick
intervention of Deputy Vander Zwaag, Ernst suffered only
minor injuries and did not require any medical attention. I
suggest judgment in the amount of $500.
reasons set forth above, I respectfully recommend that
judgment enter in favor of Plaintiff James Robert Ernst, II,
and against Defendant Levi Frost in the amount of Five
Hundred Dollars ($500.00). The parties are advised, pursuant
to 28 U.S.C. § 636(b)(1), that within fourteen (14) days
after being served with a copy of this Report and
Recommendation, any party may serve and file written
objections with the district court. The parties are
reminded that pursuant to Local Rule 72.1, "[a]party
asserting such objections must arrange promptly for a
transcription of all portions of the record the district
court judge will need to rule on the objections. "
Accordingly, if the parties are going to object to this
Report and Recommendation, they must promptly order a
transcript of the hearing held on September 26, 2016.
 The Black Hawk County Jail Policy
Regarding Maximum Security Housing was introduced as
Defendants' Exhibit K.
 Inmate Complaint, 2-3-15
(Defendants' Exhibit D).
 Booking Log, 02/06/2015
(Defendants' Exhibit C).
 Inmate Complaint, 2/6/15
(Defendants' Exhibit D).
 Inmate Request, 3/25/14 [sic]
(Defendants' Exhibit D).
 A "screen shot" of the entry
after scrolling to the right was not offered at the
 According to Deputy Shader, the F pod
was initially designed to house women and Unit F-3,
consisting of only four cells, was designed for maximum
security within the F pod. There is a small common area in
F-3, but the larger day room with a television is in
 I find no fault in the actions of the