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Perry v. Floyd

United States District Court, N.D. Oklahoma

February 23, 2017

TAUNYA PERRY, Plaintiff,
JEREMY FLOYD, in his Official Capacity as Sheriff of Ottawa County, TERRY DURBOROW, in his Individual Capacity, and DANIEL CLEMENTS, Defendants.



         Now before the Court are Defendants Derwin [Floyd][1] and Durborow's Motion and Brief for Summary Judgment against Plaintiff Taunya Perry (Dkt. # 73), and the Motion for Partial Summary Judgment Submitted by Defendant Daniel Clements and Supporting Brief (Dkt. # 94). Defendants Jeremy Floyd and Terry Durborow argue that plaintiff has no evidence to support a claim that the Sheriff of Ottawa County adopted a custom or policy that caused a violation of her constitutional rights, and Durborow argues that he is entitled to qualified immunity as to plaintiff's claim against him in his individual capacity. Defendant Daniel Clements argues that plaintiff's claims are barred by the statute of limitations to extent that the claims arose before February 25, 2013, and that the actions that occurred before that date did not rise to the level of a constitutional violation.


         Durborow was the Sheriff of Ottawa County from May 2006 to December 2015, and the jail administrator during much of Durborow's tenure in office was Randall Lloyd. Dkt. # 73-1, at 3-6. Lloyd was responsible for hiring detention officers for the Ottawa County Jail, and he hired male detention officers only due to the predominantly male prisoner population. Dkt. # 73-2, at 5. New detention officers were required to review a policy and procedure manual and the jail standards, and they were provided a copy of the Oklahoma rape statute. Id. at 6. Each new detention officer was required to sign an oath of office and a form acknowledging that he had been advised of the Oklahoma rape statute. Id. Under Oklahoma Department of Health Jail Standards, male detention officers should enter the female pod of the jail only in an emergency, and they should contact the tower before entering the pod. Dkt. # 73-1, at 36.

         Clements was hired as a detention officer in March 2012, and he spent two or three days reviewing jail rules and procedures with Lloyd. Dkt. # 73-3, at 3-4. Clements does not recall that he participated in any on-the-job training, but he did shadow a more experienced detention officer for the first few days. Id. at 6-7. Clements signed a form acknowledging that any sexual contact with a female inmate was prohibited under Oklahoma law. Id. at 26; Dkt. # 73-5. Clements received additional training on the Oklahoma jail standards in October 2012. Id. at 27. Clements was trained that there was a line on the floor of the female pod that male detention officers were not permitted to cross without a second male detention officer present. Dkt. # 73-3, at 9-11.

         Taunya Perry was arrested and booked into the Ottawa County Jail on December 28, 2012. In February 2013, she was “messing around” and dancing with another inmate, Samantha Smith, and Smith started to kiss Perry. Dkt. # 73-8, at 9. Perry heard a voice over the intercom asking Perry and Smith to open the door to allow the detention officers to watch them, and the detention officers on duty were Clements and Jason Wammack. Id. at 9-10. Perry states that she enjoyed the “male attention” she received from Clements and Wammack. Id. at 11. Perry claims that she and Smith agreed to meet Clements one night to “fool around, ” and the other inmates agreed to stay out of the way during the encounter. Id. at 13-14. Clements allegedly unzipped his pants and directed Smith to perform oral sex on him, and Perry claims that she was kissing Clements at the same time. Id. at 15. Perry became upset and ran out of the room, and Smith emerged from the room about three minutes later with two cigarettes that Clements had given her. Id. at 17. Perry did not make a complaint against Clements, and she is not aware that any other inmate told a jail employee or administrator about the incident. Id. at 20-22. Perry believes that Clements engaged in sexual acts with other female inmates in January and February 2013. Id. at 23-24.

         On February 20, 2013, Perry was put in lockdown, or solitary confinement, after an altercation with another inmate. Dkt. # 104-7, at 19-21. She was still in lockdown as of February 25, 2013, and Clements used the intercom to ask Perry if she wanted to clean her cell. Id. at 28. Clements came to the lockdown cell with a broom and a mop while a Hispanic man waited downstairs, and Perry was concerned that the Hispanic man was acting as a lookout. Id. at 30. Perry asked for toilet cleaner, and she claims that Clements agreed to get toilet cleaner but he told her that she should pull her pants down before he came back. Id. Clements came back with the toilet cleaner and he asked Perry why she had not pulled down her pants. Id. at 31. Perry claims that Clements pulled her pants down and raped her, and he left two cigarettes when he left her cell.[2] I d . at 32. Two former inmates, Toni Morgan and Amanda King, claim that Perry voluntarily had sex with Clements, because Perry had heard of a settlement in a case arising out of Delaware County, Oklahoma, and Perry believed that she could file a lawsuit against the jail if Clements had sex with her. Dkt. # 73-9, at 6-7; Dkt. # 73-10, at 3-4.

         Perry was released from jail on February 28, 2013. Dkt. # 73-8, at 38-39. Perry admits that she did not tell anyone at the jail about the alleged rape by Clements, and she did not file a grievance or a police report about the incident. Id. at 40. Perry claims that she intended to contact law enforcement after she was released from prison, but there is no evidence that she sought a criminal investigation of Clements after she was released.[3] Dkt. # 104-7, at 34-37. On March 21, 2013, Travis McMinn, a detention officer, filed a report that he had received a complaint that Wammack and Clements were engaging in sexual activity with female inmates. Dkt. # 73-14, at 3-4. A female inmate, Cynthia Evans, told McMinn that Wammack and Clements “were going into the female pod at 2:00 a.m. and trading cigarettes for blow jobs.” Id. at 4. Lloyd immediately suspended Wammack and Clements, and Durborow directed Lloyd to contact the district attorney. Dkt. # 73-2, at 10. Durborow contacted the Oklahoma State Bureau of Investigation (OSBI), and he requested that OSBI investigate Evans' allegations. Dkt. # 73-1, at 27. OSBI interviewed Clements about the allegations of sexual misconduct, and Clements denied that he engaged in any sexual activity with a female inmate. Dkt. # 73-3, at 18. Durborow told Clements that he could not return to work until OSBI's investigation was complete, and Clements submitted a letter of resignation. Dkt. # 104-1, at 16-17. No criminal charges have been filed against Clements as a result of the investigation.

         Durborow states that, prior to March 21, 2013, he had received only one allegation of sexual misconduct by a jail employee during his tenure as Sheriff. Dkt. # 73-15, at 2. In October 2008, a female inmate alleged that she had been sexually assaulted, and Durborow asked OSBI to investigate the matter. Id. OSBI investigated the complaint and interviewed approximately 20 witnesses, and OSBI found that no sexual assault had occurred based on the female inmate's admission that she had a psychotic episode. Id. In 2012, the Ottawa County District Attorney asked OSBI to investigate a possible sexual assault of a female inmate at the Ottawa County Jail. Dkt. # 74-1. The report concluded that a female inmate alleged that Lloyd used excessive force, but there was no sexual assault nor did Lloyd threaten to sexually assault a female inmate. Id. Durborow states that he was not aware of this investigation and he did not see the report until a few days before his deposition in this case. Dkt. # 73-1, at 15; Dkt. # 73-1, at 30-33.

         Female inmates were monitored by video camera and by a dispatcher located in a centrally-placed observation tower. Dkt. # 73-2, at 7-8. The video cameras do not show the individual cells and showers for privacy reasons, and there is also a mechanical room that does not have video surveillance. Dkt. # 73-1, at 14. In March 2013, Durborow was made aware that the video cameras in the female pod were displaying video but the video was not being recorded, and they could not recover any video recordings from January or February 2013.[4] Id. at 18-20.

         On February 25, 2015, Perry filed this case alleging that she was sexually assaulted by Clements, and that Durborow was deliberately indifferent to the health and safety of female inmates at the Ottawa County Jail.[5] Perry alleged claims under 42 U.S.C. § 1983 against Durborow in official and individual capacities, as well as a § 1983 claim against Clements, for alleged violations of Perry's rights under the Eighth and Fourteenth Amendments to the United States Constitution. Floyd has been substituted as the appropriate party for Perry's official capacity claim against the Sheriff of Ottawa County. Floyd and Durborow have filed a motion for summary judgment arguing that plaintiff has no evidence that a constitutional violation was caused by an official policy or custom. Dkt. # 73. Clements has filed a motion for partial summary judgment asserting that the statute of limitations bars Perry from relying on events before February 25, 2013 as a basis for liability against Clements. Dkt. # 94. The Court has stayed the proceedings pending a ruling on the motions for summary judgment. Dkt. # 100.

         As to Clements' motion, Perry responds that she is not seeking to hold Clements liable for acts occurring before February 25, 2013, but that evidence of events that occurred before February 25, 2013 is relevant to establish a background for Perry's claims. In light of Perry's response, the Court finds that Clements' motion for partial summary judgment (Dkt. # 94) is moot.


         Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 317. ‚ÄúSummary judgment procedure is properly regarded not as a disfavored ...

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