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Mindy Kahle Plaintiff/Apellee V. Jermaine Leonard, individually and in his official capacity, Defendant, Tim Malone, individually and in his official capacity, Defendant/Appellant Sheriff Don Holloway, individually and in his official capacity, Pennington County Jail, Scott Shuft individually and in his official capacity, Defendants

Summary Judgment on the Supervisor’s Side

In this case we look at a summary judgment from a supervisor’s side. Officer Tim Malone of the Pennington County Jail had appealed the denial of his motion of summary judgment from the district court.

Mindy Kahle alleged that Malone violated her rights while in jail and that Malone was deliberately indifferent in that he failed to supervise Jermaine Leonard, an employee of the jail. The accusations occurred during Kahle’s stay at the Pennington County Jail on December 14, 2002.

In 2002 Leonard applied for job with the Pennington county Jail. After a background check was completed he was accepted as an employee. He was to complete eight weeks of training which included two weeks of classroom work. Then he would be supervised for the remaining six weeks.

Leonard was working on the completion of his on the job training. Malone was a senior officer and was assigned to supervise Leonard. Specifically he was to insure that lock down was at 2200 hours every evening. After that there should be no entry into any cell. If a cell was compromised a supervisor, Malone, would make a note in the log.

Kahle was housed on the upper level of the cell block five. From 2200 to 2300 Leonard went into Kahle’s cell on three occasions. On the first visit he kissed her and tried to pull her pants down. The second visit he succeeded and performed oral sex on Kahle. She resisted and he pushed her to the wall. At that time his radio activated. Knowing that it would be noticed, he started to leave. As he did he asked for drawings she had in her possession. She allowed him to take them. He returned a third time again he kissed her and rubbed his penis against her.

During this time Malone was in the work station. Leonard told Malone each time he went to her cell (to but not apparently into). Leonard told Malone that Kahle had given him the drawings and he was going to copy one and return them. Malone did not take any action to stop Leonard nor did he question him.

The court determined that although Leonard told Malone he was going to and from Kahle’s cell it did not mean that Malone knew Leonard was going into the cell. He could have believed that the drawings were being passed back and forth. However, at the station there was a panel of lights which indicated when a cell was opened. The simple light indicators showed green when a cell was locked and red when a cell was unlocked. So, during each of the three visits the green light would have remained on if the cell remained locked. In the worst case scenario on the second entry the light would have been red for at least five minutes.

Malone contended that at no time did the lights change color. He stated that he could not see Kahle’s cell from the work station. However, Kahle stated that Malone looked into the cell when the radio went off. Leonard stated that he did not know what Malone saw, but he would be surprised if Malone didn’t see him kissing Kahle. Sheriff Don Holloway stated that Malone was wrong and that the cell could be seen from the work station.

Malone did not log any of the entries into Kahle’s cell although as the supervisor he was supposed to. He denied knowing that Leonard went into Kahle’s cell three times. Furthermore, he never looked at Kahle’s cell during the entire time to check on the officer.

The court concluded the following:

“No reasonable prison official in Malone's position could have concluded on December 14, 2002, that a detainee who was sexually assaulted by a prison guard did not suffer a ‘serious harm’. The Ninth Circuit put the point well in 2000:

In the simplest and most absolute of terms, the Eighth Amendment right of prisoners to be free from sexual abuse was unquestionably clearly established prior to the time of this alleged assault, and no reasonable prison guard could possibly have believed otherwise.

Without question then, Kahle's constitutional right to be protected from being sexually assaulted by a guard was clearly established on December 14, 2002, as was the fact that a supervisor who was deliberately indifferent to a substantial risk of such an assault could be held liable under § 1983. "(I)t would be clear to a reasonable officer (in Malone's position) that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202.

Because a reasonable juror who accepted Kahle's version of the events could conclude that Malone violated Kahle's clearly-established constitutional rights by demonstrating deliberate indifference to a substantial risk that she would be seriously harmed by Leonard, the district court's denial of Malone's summary-judgment motion is AFFIRMED.” (Mindy Kahle, Plaintiff/Apellee, v. Jermaine Leonard, individually and in his official capacity, Defendant; Deputy Tim Malone, individually and in his official capacity Defendant/Appellant; Sheriff Don Holloway, individually and in his official capacity; Pennington County Sheriff's Office; Pennington County Jail; Scott Schuft, individually and in his official capacity, Defendants. 2007 U.S. APP LEXIS 3107)

There is an old saying you can run but, you can’t hide from the truth. In this case the Sheriff took the right road and had good policies. A large part of the outcome of this case was the testimony of Sheriff Holloway. It is very persuasive if the Sheriff Holloway himself been in his jail and knew that Malone could see the cell and was untruthful. The importance of a CEO having the foresight to take part in an investigation is immeasurable. Some agency heads don’t understand that internal investigations are as important to the department as an officer involved shooting and that mishandling them can have the same negative impact on the agency.

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About The Author:

Randy Rider began his career with the Douglas County Sheriff office, Georgia in 1974. He received several promotions eventually to investigations. His areas of expertise are extensive having worked crimes from petty theft to murder. In 1983 he became employed with the Georgia Department of Juvenile Justice as an investigator, promoted to Principal Investigator. He eventually moved into the Internal Affairs Unit as an investigator and as a supervisor.

Rider was elected President of the National Internal Affairs Investigators Association in 2005 and stepped down in 2010 having served five years. He is currently the Chaplain of the organization.

He is employed with the Public Agency Training Council one of the largest police training organizations in the country. Rider travels the country teaching officers on internal investigations of corrections facilities and first line supervisors on investigations of citizen’s complaints. He has experience is police audits.

Over the course of his career he has conducted hundreds of investigations concerning abuse, neglect, and use of force by law enforcement officers. Additionally, he has years of experience in custodial investigations, including numerous investigations involving the highly prevalent but seldom reported cases of inmate on inmate abuse. He has conducted investigations of police personnel for acts of misconduct.

A member of the IACP he worked with the organization on the document “Building Trust between the Police and the Citizens They Serve.” Currently he is an advisor on the Leading by Legacy program. He is an advisor to the International Chiefs of Police and the Department of Justice Community Oriented Policing Services.

Randy is a columnist for Officer.com as the internal affairs author. He published the weekly NIAIA newsletter for five years. He currently publishes the riderreport, a police newsletter.