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Drumgo v. Kuschel

United States District Court, D. Delaware

March 26, 2019


          DeShawn Drumgo, SCI Frackville, Frackville, Pennsylvania. Pro Se Plaintiff.

          Stuart B. Drowos, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.


          CONNOLLY, U.S. District Judge


         Plaintiff DeShawn Drumgo ("Plaintiff'), a former inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, currently housed at SCI Frackville, Frackville, Pennsylvania, filed this lawsuit pursuant to 42 U.S.C. § 1983.[1] (D.I. 3) Defendant Sgt. William Kuschel ("Defendant") moves for summary judgment.[2] (D.I. 96) Plaintiff opposes the motion. Also before the Court is Defendant's motion to supplement/correct the record[3] and Plaintiffs request for counsel. (D.I. 132, 143)


         The verified Complaint[4] alleges sexual harassment/assault occurred on May 29, 2014. (D.I. 3 at 4-5) Plaintiff was walking out of MHU 24-B chow hall, and C/O VanGorder ("VanGorder") pointed him towards Defendant who was wearing a black leather glove. (D.I. 3 at 4-5; D.I. 46-1 at 20) According to VanGorder, Plaintiff was directed to Defendant because he was the next available officer to conduct a frisk search as Plaintiff exited the chow hall. (D.I. 46-1 at 8-9) Plaintiff states that before the frisk started Defendant told Plaintiff "not to say anything because no one was going to help [him]". (D.I. 40 at 17) Plaintiff states that Defendant "repeatedly and slowly in attempts to seduce [Plaintiff]... groped [Plaintiffs] legs three different times until he reached [Plaintiffs] penis. (Id.) Plaintiff states that after he told Defendant he would let one of the other officers "strip search him versus [allowing Defendant] to sexually assault[]" him, Defendant "went on up [Plaintiffs] penis stroking it, jacking it, and yanking it in a masterbative or what he thought to be a seductive manner." (Id.) Plaintiff states that Defendant continued to grip his penis and squeezed it intentionally in such a manner that Plaintiff could feel the cracking and burning of the skin and this resulted in rupturing the skin of the penis. (D.I. 3 at 5-6) During this time Plaintiff shouted, "let go of my dick." (Id. at 5) Plaintiff alleges that VanGorder, C/O Hutchins ("Hutchins"), C/O Ingram ("Ingram"), and C/O Abernathy ("Abernathy") were present during the incident. (D.I. 3 at 5)

         Defendant uses leather gloves when he conducts frisk searches for safety reasons. (D.I. 97-1 at ¶ 12) He denies that he sexually assaulted Plaintiff or that he grabbed, squeezed, or held onto Plaintiffs penis when he frisked Plaintiff. (Id. at ¶¶ 6, 8) Defendant has no recollection of Plaintiff yelling or calling for staff members to provide Plaintiff assistance or to provide Plaintiff protection when he frisk searched Plaintiff on May 29, 2014. (Id. at ¶ 11) VanGorder, Hutchins, Ingram, and Abernathy deny that Plaintiff called for help from the other staff members. (D.I. 46-1 at 9, 11, 14, 17) Defendant states that he frisk-searched several inmates on the same date and in the same manner as he used with Plaintiff and no other inmate complained about the search or said he sexually assaulted them. (D.I. 97-1 ¶ 6)

         The affidavit of inmate Isaiah J. Walker ("Walker") states that on the day in question he saw Defendant clutching Plaintiffs groin area and heard Plaintiff yell, "let go of my dick." (Id. at 19) The affidavit of inmate Curtis Mercer ("Mercer") states that on the day in question he saw Defendant search Plaintiff in a "different manner by going up and down [Plaintiffs] leg, lingering around where one's private area is located" and "had what looked like a handful of Plaintiffs genitals" which made Plaintiff holler, "let go of my dick." (Id. at 20) The affidavit of inmate Alex Lopez ("Lopez") states that he was frisked by Defendant in a similar manner on the same day and that he also heard Plaintiff yell. (D.I. 124)

         Plaintiff alleges this is the second time Defendant has sexually assaulted him. (D.I. 3 at 5; D.I. 98 at 2) Plaintiff does not indicate when the first incident occurred, but states he submitted a grievance after Defendant caressed his nipples and buttocks.[5](D.I. 40 at 18) Defendant denies that Plaintiff made a prior complaint or submitted a grievance complaining of his frisk search procedure. (D.I. 97-1 at ¶ 7) Defendant states that Plaintiff's complaint is the only time he has been accused by anyone of improperly performing a frisk search or deviating from the normal manner of performing a search. (Id. at ¶ 5) In addition, Defendant denies that he was called to the offices of Wallace or Lt. Schaffer to discuss complaints by inmates as to the manner in which he conducts a frisk search. (Id. at ¶ 8) Defendant states that he has never been disciplined in any manner either in reference to such complaints or other alleged misconduct or unprofessional behavior or performance of his duties. (Id.)

         Defendant's responsibilities include security checks and inspections, primarily as frisk searches on all personnel entering the facility. (Id. at ¶ 3) The security check frisk searches are performed using the same procedure Defendant was trained to employ at the Delaware Department of Correction academy. (Id. at ¶ 4) Defendant also employs the same procedure for inmate searches within the facility. (Id.) The purpose of searching inmates as they leave the chow hall and observing and supervising inmates in the chow hall is to ensure that no institutional rules are violated, to prevent contraband from being passed from one inmate to another, and to maintain the security and safety of the chow hall for the sake of staff and inmates alike. (Id. at ¶ 11) The procedure Defendant was trained in is designed to quickly, efficiently, and effectively detect and intercept contraband. (Id.)

         According to Plaintiff, following the incident, he spoke to VanGorder, who told him that she and the staff were aware of Defendant's illicit "sexual searches." (D.I. 3 at 6) VanGorder denies this allegation. (D.I. 46-1 at 8) Hutchins and Abernathy also deny Plaintiffs allegations that they had knowledge that Defendant tended to commit unlawful acts while conducting searches. (D.I. 46-1 at 11, 17) Plaintiff alleges that he spoke to Ingram who told him that Lt. Wallace ("Wallace") had warned Defendant about his inappropriate conduct. (D.I. 3 at 6) Ingram denies this allegation. (D.I. 46-1 at 14-15) In addition, Plaintiff alleges he spoke to the C/O Levin ("Levin") who referred to Defendant's conduct as "illicit sexual searches." (D.I. 3 at 6)

         Plaintiff approached Wallace, who was with Defendant, and reported to him that he was sexually assaulted. (D.I. 3 at 6) Stanley Baynard ("Baynard") an internal affairs investigator at the VCC, was assigned to conduct a Prison Rape Elimination Act investigation of Plaintiffs complaint against Defendant. (D.I. 46-1 at 20) Baynard concluded that there was no credible evidence to substantiate the claim and recommended closure of the matter without the need for further action against Defendant. (/cf.at21)

         During his deposition, Plaintiff testified that the incident resulted in flashbacks, nightmares, and an actual injury of broken skin for which he received Bactrocin ointment. (D.I. 51 at 71, 73) He states that he submitted a sick call slip for the injury to his penis. (D.I. 3 at 6) A sick call request dated May 29, 2014, the day of the occurrence, requested a new pair of eyeglasses, and did not mention the May 29, 2014 occurrence or an injury. (D.I. 118 at 71) A sick call slip dated June 1, 2014, sought a refill of nasal spray and a chronic care appointment for Plaintiffs allergies and asthma, and did not mention the May 29, 2014 occurrence or an injury. (Id. at 72) A June 10, 2014 sick call slip asked for medication and again requested a chronic care provider visit. (Id. at 70) It did not mention the May 29, 2014 occurrence or an injury. (Id.) A September 3, 2014 medical record states that Plaintiff "reported an officer groped his penis when he was in Building 23, denies any injuries at this time." (D.I. 98 at 11) During his deposition, Plaintiff testified that "that's not true" that medical personnel had seen the injury as minor, because Plaintiff was given ointment.[6] (D.I. 51 at 73)

         Plaintiff states that he submitted sick call slips for nightmares and sleeplessness that resulted from the incident. (D.I. 3 at 6; D.I. 98 at 3) Plaintiff was seen by mental health personnel on July 1, 2014 following a sick call request submitted the same day concerning the protocol for treating his complaints of nightmares following the alleged sexual assault. (D.I. 131 at 13) Plaintiff submitted a grievance concerning treatment and, on October 10, 2014, it was noted that Plaintiff received monthly mental health visits and that Plaintiff participates in mental health group sessions. (Id. at 18) On the same date, the treatment plan was for Plaintiff to "engage with mental health clinicians to address distress and symptoms related to the incident." (Id.)

         Marc Richman ("Richman"), Bureau Chief for the Bureau of Correctional Health Care Services, reviewed Plaintiffs mental healthcare file and observed that it does not indicate a diagnosis of post-traumatic stress disorder. (D.I. 97-1 at 16-17, 19-21) Nor does it indicate that Plaintiff take medication for any mental health issues, although he partakes in "talk therapy." (Id. at 17, 20) Richman opined that Plaintiffs current psychological condition is essentially no different than his condition in March 2016, that Plaintiffs condition is ...

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