REPORT AND RECOMMENDATION
JANIE S. MAYERON, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for the Defense of Qualified Immunity [Docket No. 44]; Plaintiff's Motion for Partial Summary Judgment [Docket No. 52]; and Defendants' Cross Motion for Summary Judgment [Docket No. 78]. This matter was referred to the undersigned by the District Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) [Docket No. 1].
Plaintiff Pouch Ruach was a state prisoner incarcerated at the Minnesota Correctional Facility, Stillwater, Minnesota ("MCF-Stillwater") at the time of the events described in his Amended Complaint. Amended Complaint, ¶63 [Docket No. 3-1]. Ruach, who is pro se, sued defendants in this 42 U.S.C. §1983 action alleging that they violated his federal constitutional rights. Id., p. 1. Defendants are the Minnesota Department of Corrections ("MNDOC") and MNDOC employees who work at MCF-Stillwater where Ruach was incarcerated until his transfer to MCF-Oak Park Heights. Id., ¶63. Ruach sued defendants in their individual and official capacities. Id., ¶¶4-12.
A. Notice of Violation #436033
Ruach alleged that on March 8, 2011, he was sexually assaulted by Samuel Moore, a correctional officer ("CO") at MCF-Stillwater. Id., ¶¶14-19. According to Ruach, Moore grabbed and squeezed Ruach's buttocks while taking off Ruach's waist chain and handcuffs. Id., ¶¶14-17. Correctional officers Shannon Smith and defendant Michael Warner observed the assault but did nothing to prevent it. Id., ¶¶ 20-26. After the incident, Moore "made offers" to Ruach in exchange for Ruach's agreement not to report the incident. Id., ¶31. According to defendants, Ruach refused Moore's direct order to place his hands in the cuff pass, making it difficult to remove the handcuffs. Affidavit of Samuel Moore ("Moore Aff."), ¶2 [Docket No. 86]. After Moore removed Ruach's handcuffs, Ruach adopted an aggressive stance, threw punches in the air and yelled at Moore for grabbing his hand while removing the handcuffs. Id . Moore stated that during the incident, Ruach yelled "I'm not a soft motherfucker, I'll break you in half." Id . Moore denies ever having touched Ruach's buttocks in a sexual manner. Id.
The next day, Ruach was placed in punitive segregation and served with a Notice of Violation ("NOV") for disobeying direct orders, threatening others and disorderly conduct. Amended Complaint, ¶¶32-33, 40, 41. Moore wrote the incident report on which the Notice of Violation was based. Moore Aff., ¶3. Ruach was given a copy of the Notice of Violation outlining the charges, but refused to sign an acknowledgement. Affidavit of John King ("King Aff.") [Docket No. 87], Ex. 2 (NOV #436033) [Docket No. 87-1].
Ruach alleged that he asked that certain staff and inmates be called as witnesses to testify at a disciplinary hearing on the charges, but defendants Greg Lindell and Scott Behrends, the hearing officers, refused to call the witnesses, stating that they would not call witnesses from the general prison population to a hearing involving an inmate in segregation and that the staff reports "gave a full picture of the incident." Amended Complaint, ¶38.
The hearing was originally scheduled for March 15, 2011, but it was continued at Ruach's request so that he could obtain representation and prepare his defense. King Aff., ¶5. The hearing was continued to April 5, 2011, in part because Moore was on vacation. Id . Defendant Scott Behrends was the hearing officer and defendant Greg Lindell was the prosecutor. Affidavit of Scott Behrends ("Behrends Aff."), ¶2 [Docket No. 83]; Affidavit of Greg Lindell ("Lindell Aff."), ¶3 [Docket No. 82]. Behrends and Lindell stated that they did not receive a request from Ruach to call any particular witnesses. Behrends Aff., ¶3; Lindell Aff., ¶4. Ruach appeared at the hearing as did Moore. Behrends Aff., ¶3. Moore testified consistent with his report. Id . Ruach did not ask Moore any questions about the incident. Id . Ruach moved for dismissal based on the postponement of the hearing, but Behrends denied the motion, concluding that Ruach had not suffered any loss of liberty as a result of the continuance because he was on detention status for an earlier offense. Id . Ruach's only defense was that he did not do what Moore said he had done. Id . Ruach was found guilty of the charges, placed in segregation for 210 days and given sixty days of extended incarceration. King Aff., Ex. 2.
Ruach appealed Behrends' findings and the appeal was handled by defendant Warden John King. King Aff., ¶3. King found no due process violations in connection with the hearing and found that the only procedural issue raised by Ruach's appeal was the postponement from March 29, 2011 to April 5, 2011. Id . However, Ruach did not explain how he was prejudiced by the postponement. Id . ¶5. King reviewed the incident report, NOV, notice of postponement and Behrends' findings, and concluded that there was sufficient evidence to support Behrends' findings and that Ruach was given proper notice of the postponement. Id . As a result, King denied the appeal. Id .; King Aff., Ex. 2 (Moore's incident report; NOV #436033, Request for Continuance, Notice of Postponement, Hearing Findings, Appeal, kite dated April 11, 2011 (seeking dismissal because of postponement), King's denial of appeal).
B. Notice of Violation #436405
On March 13, 2011, defendant Lieutenant Jenny Carufel received a kite from Ruach regarding the March 8, 2011, interaction with Moore. Affidavit of Jenny Carufel ("Carufel Aff."), ¶2, Ex. 1 (copy of kite) [Docket No. 81]. Ruach alleged that Moore had touched him inappropriately while taking off his handcuffs. Id . Carufel reviewed the video of the incident and concluded that the video did not show any misconduct by Moore. Carufel Aff., ¶2, Ex. 2 (video of incident). Carufel wrote a memo to Ruach informing him of her findings. Id., Ex. 3 (Memorandum dated March 13, 2011 from Carufel to Ruach). As a result of what Carufel considered to be Ruach's false accusations against Moore, Carufel wrote an incident report accusing Ruach of lying, misrepresentation and disorderly conduct. Carufel Aff., ¶2; Amended Complaint, ¶42; Affidavit of Michael Warner ("Warner Aff."), ¶4 [Docket No. 90]. Also on March 13, 2011, Associate Warden of Administration Michelle Smith received a kite from Ruach regarding Moore's alleged sexual contact. Affidavit of Michelle Smith ("Smith Aff."), ¶3 [Docket No. 84]. Smith directed defendant Bruce Julson, the Corrections Program Director at MCF-Stillwater, to investigate and respond to Ruach's kite. Id . Julson responded to the kite, explaining to Ruach that the allegations had been investigated and found to be unsubstantiated. Affidavit of Bruce Julson ("Julson Aff."), ¶3 [Docket No. 92]; Julson Aff., Ex. 2 (copy of kite).
The disciplinary hearing on Carufel's charges took place on March 22, 2011, before defendant Craig Oseland, disciplinary prosecutor, and defendant Scott Hadrava, the hearing officer. Amended Complaint, ¶43, Affidavit of Scott Hadrava ("Hadrava Aff."), ¶3 [Docket No. 99]; Affidavit of Craig Oseland ("Oseland Aff."), ¶2 [Docket No. 88]. Ruach refused to attend the disciplinary hearing. Oseland Aff., ¶3; Hadrava Aff., ¶3; King Aff., Ex. 3. Neither Oseland nor Hadrava received a request from Ruach to call witnesses. Oseland Aff., ¶3; Hadrava Aff., ¶3; King Aff., Ex. 3. In light of the evidence and the lack of defense, Hadrava found Ruach guilty of lying and misrepresentation and disorderly conduct. Id . Accordingly, he was given 30 days of punitive segregation and five days of extended incarceration. Id .; Amended Complaint, ¶46. Ruach appealed the decision and King denied the appeal. King Aff., ¶¶3-6. King did not find any due process violations or any reason to overturn the hearing officers' decision. Id., ¶4.
On March 20, 2011, two days before the disciplinary hearing on NOV #436405, Carufel received a kite from Ruach. Carufel Aff., ¶2. Ruach alleged that when he asked Moore to staple some papers for him Moore said "Fuck you and keep your mouth shut." Id., ¶3. Ruach claimed he contacted the staff by intercom and told them about the incident and asked to speak to the sergeant. Id., ¶3. Carufel reviewed the video and listened to the intercom communications for the time and date Ruach alleged this incident occurred and found his allegations were false. Id . On March 22, 2011, Carufel responded to Ruach's kite and informed him of the findings of her investigation. Id., Exs. 3, 4 (kite and Carufel's response).
On April 13, 2011, Ruach's case manager, defendant Ashlee Berts, received a kite from Ruach, alleging that the staff had charged him with discipline violations as retaliation against him for his accusations against Moore. Affidavit of Ashlee Berts ("Berts Aff."), ¶2, Ex. 1 (kite). Ruach accused the staff of lying about him and asked to be moved to "quiet status" in a cell that had a camera. Berts Aff., Ex. 1; Complaint, ¶61. According to Berts, "as a caseworker, I did not have the authority to transfer an inmate to a different cell or initiate an investigation into staff conduct." Id., ¶3. Berts forwarded the kite to defendant Julson. Id . Julson concluded, based on Carufel's investigation (reviewing the tape of Moore's alleged sexual contact with Ruach), that Ruach's claims were unsubstantiated and there was no basis for moving Ruach to a cell with a camera. Julson Aff., ¶¶5, 6.
C. Notice of Violation #437341
On April 8, 2011, Moore was collecting food trays in the segregation unit when he heard Ruach make a comment he could not hear completely. Moore Aff., ¶5. Moore asked Ruach what he said and Ruach replied "Your momma's a bitch, straight up." Id . Moore wrote an incident report charging Ruach with abuse/harassment and disorderly conduct. Id .; Hammer Aff., Ex. 1 (NOV #437341; Moore's incident report; hearing findings). On April 11, 2011, Ruach was charged with abuse, harassment and disorderly conduct and an NOV was issued. Amended Complaint, ¶54; Affidavit of Steve Hammer, Ex. 1 [Docket No. 85-1] (NOV #437341). Defendant Greg Lindell was the hearing office for this "minor" disciplinary hearing. Lindell Aff., ¶3. A hearing is "minor" when extended incarceration cannot be imposed as a consequence. King Aff., Ex. 1.
Ruach attended the hearing and denied making the statement to Moore, but Lindell found by a preponderance of evidence that Ruach was guilty of the alleged rule violation and issued a written report of his findings. Id., Hammer Aff., Ex. 1 (hearing findings report). Ruach lost his privileges for fifteen days. Id . Ruach appealed the findings and MCF-Stillwater Associate Warden Steve Hammer denied the appeal. Hammer Aff., ¶¶2-3. Ruach's basis of appeal was that he did not make the statement Moore accused him of making. Hammer Aff., ¶3.
D. Notice of Violation #437570
On April 13, 2011, Ruach received another NOV charging him with abuse, harassment, threatening others and disorderly conduct. Amended Complaint, ¶¶56-58. This NOV followed an incident in which Moore was distributing kites in the segregation unit and Moore heard Ruach yell "Don't throw kites in my cell! You should man up. You should see me in the streets, you don't even know." Moore Aff., ¶6. Moore took this statement as a threat and wrote an incident report. Id .; Affidavit of Paula Thielen ("Thielen Aff."), Ex. 1 (Moore's incident report) [Docket No. 91]. Moore's report indicated that "[i]t should be noted that this continues [Ruach's] trend of verbal harassment and threats to this reporting officer." Thielen Aff., Ex. 1.
A few hours later, CO Brianna Arnzen was randomly monitoring the intercoms in the segregation unit. Affidavit of Briannna Arnzen ("Arnzen Aff."), ¶¶1, 3 [Docket No. 83]. As Moore was walking past Ruach's cell, Arnzen heard him say "bitch Ass C.O., I'm a kill yo motherfuckin' ass." Id., ¶3. Arnzen wrote an incident report. Arnzen Aff., Ex. 1 (incident report). Arnzen noted that "[o]ver the last couple of weeks, Ruach has made numerous threatening statements to and regarding Officer Moore." Id.
Correctional officer Warner reviewed Moore's and Arnzen's incident reports and determined there was sufficient evidence to charge Ruach with abuse/harassment, three counts of threatening others and disorderly conduct. Warner Aff., ¶6; Arnzen Aff., Ex. 1. Ruach received a NOV detailing these charges. Arnzen Aff., Ex. 1; Amended Complaint, ¶56.
At the disciplinary hearing, Lindell was the prosecutor and defendant Paula Thielen was the hearing officer. Lindell Aff., ¶3; Thielen Aff., ¶2. Ruach did not ask Thielen or Lindell to call any witnesses on Ruach's behalf. Lindell Aff., ¶4; Thielen Aff., ¶3. Thielen found Ruach guilty of the charges and imposed 315 days in segregation and 60 days of extended incarceration. Amended Complaint, ¶57; Thielen Aff., ¶3, Ex. 1. Thielen noted in her hearing findings that "the offender has an extensive discipline record for abuse, threatening behavior and assaultive behavior" and imposed the penalties "given his continued volatile behavior." Thielen Aff., Ex. 1.
According to Lindell, Ruach did not file an appeal regarding Thielen's decision. Lindell Aff., ¶7. Ruach alleged that he did appeal this decision and that he put his appeal (or request for appeal) "on the record, " but MCF-Stillwater staff told him they did not receive an appeal. Amended Complaint, ¶58. Ruach also contended that his request for video of the incidents during his hearing was denied. Id . The hearing findings do not reflect Ruach's request for the video.
In addition to these disciplinary events, Ruach alleged that he sent a kite to Berts requesting to make a legal call and that request was denied (Amended Complaint, ¶51); on March 13, 2011, Ruach submitted a grievance to defendant Margaret Thron, the grievance coordinator for MCF-Stillwater, which was rejected (Amended Complaint, ¶52); and on April 6, 2011, Ruach requested that a disciplinary matter be sent to the Central Office, which was denied by Lindell. Id., ¶53.
Ruach claimed he was was placed in "kite management" on April 21, 2011, without explanation. Amended Complaint, ¶62. On April 29, 2011, Ruach was transferred to MCF-Oak Park Heights. Id., ¶63.
E. Claims for Relief
Ruach alleged that Moore's actions and the actions of the DOC defendants who failed to intervene to prevent his assault constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. Id., ¶64. Ruach further alleged that Moore's actions amounted to the tort of assault and sexual misconduct. Id., ¶65.
Ruach alleged that defendants King, Hammer, Julson and Smith's failure to take any disciplinary action against Moore and Warner "constituted deliberate indifference, and contributed to and proximately caused the above described violation of Eighth Amendment rights and assault and misconduct." Id., ¶66.
Ruach alleged that the failure of hearing officers Lindell, Thielen, Behrends, Hadrava, and Oseland to call the witnesses he requested at his disciplinary hearings and finding him guilty of all charges without evidence and inadequate explanations of the disposition of the charges, constituted a denial of his due process rights in violation of the Fourteenth Amendment of the United States Constitution. Id., ¶67.
Ruach alleged that defendants Julson, Berts, and Carufel's failure to move him to a cell with a camera, to "follow up" on his allegation of retaliation, and in denying him protection from abuse constituted deliberate indifference to "plaintiff's serious of [sic] protection care needs" in violation of the Eighth Amendment. Id., ¶68.
Ruach claimed that King and Hammer's refusal to "overturn" Ruach's disciplinary conviction, despite knowing of the alleged due process violations, violated his due process rights under the Fourteenth Amendment. Id., ¶69.
F. Relief Requested
As relief, Ruach sought a declaratory judgment that: (1) the physical abuse by Moore, Arnzen, Shannon Smith and Warner, and failure by King, Hammer, Julson and Smith to take actions to curb physical and sexual violence to prisoners violated Ruach's federal constitutional rights under the Eighth Amendment and constituted sexual assault and sexual misconduct under state law (id., Request for Relief, ¶¶A(1)-(2)); (2) the actions by Lindell, Thielen, Hadrava and Oseland in conducting the disciplinary hearings and by King and Hammer in sustaining their decisions violated Ruach's due process rights under the Fourteenth Amendment (id., ¶A(3)); (3) the failure of Julson, King, Hammer and Carufel to provide an adequate investigation, protect Ruach from retaliation and provide "protection care" violated and continues to violate his rights under the Eighth Amendment. Id., ¶A(4).
In addition, Ruach sought an injunction (1) ordering defendants King, Julson, Hammer, Smith, "or other agents" to immediately remove him from segregation and arrange for a mental health examination and mental health therapy, ordering defendants "carry out without delay" treatment directed by the mental health practitioner (id., ¶¶B(1)-(3)); and (2) requiring Warden King to release him from segregation into the general prison population, reinstate all of his privileges, and expunge his disciplinary record. Id., ¶¶C(1)-(3).
Ruach also sought punitive and compensatory damages against all defendants in varying amounts. Id., ¶¶D(1)-(3), E(1)-(3); "alternative version of damage demand, " ¶¶D(1)-(3), E(1)-(3).
G. Defendants' Answer
Defendants Berts, Julson, Smith, Carufel, Lindell, Behrends, Thron, Warner, Hadrava, Oseland, Lind, Hammer, Theilen, Arnzena and Moore answered, generally admitting Ruach's disciplinary history, but otherwise denying his allegations. Answer to Amended Complaint [Docket No. 18]. Defendants asserted various defenses, including qualified, official or discretionary immunity and Eleventh Amendment immunity. Id., ¶¶4, 5. Defendants Perry and the MNDOC answered separately, asserting the defenses of Eleventh Amendment immunity, official immunity and failure to exhaust administrative remedies. Answer of Minnesota Department of Corrections and Perry [Docket No. 22].
H. Ruach's Motion for Defense of Qualified Immunity [Docket No. 44]
A few months after defendants answered Ruach's Amended Complaint, Ruach filed a motion entitled "Motion for the Defense of Qualified Immunity Issues Raised by the Defendants." [Docket No. 44]. Ruach argued that the Court should deem defendants' defense of qualified immunity waived because "defendants failed to raise it in [the Court's] pretrial order." Affidavit of Pouch Ruach in Support of Plaintiff's Moiton for the Defense of Qualified Immunity, p. 2 [Docket No. 44]. In his supporting memorandum of law, Ruach reviewed the general standards governing qualified immunity and again asserted that because qualified immunity was not discussed in this Court's Pretrial Scheduling Order, the ...