United States District Court, S.D. Indiana, New Albany Division
ORDER GRANTING DEFENDANT DAVIS'S MOTION TO
EVANS BARKER, JUDGE
Molly Whitted (“Ms. Whitted”) alleges that her
rights were violated when Defendant Cody Konkle (“Mr.
Konkle”), a Correctional Officer at the Indiana
Department of Correction's (“IDOC”) Madison
Correctional Facility, pressured her into having sexual
intercourse. Now before the Court for resolution is a Motion
to Dismiss filed by Defendant Jan Davis, Superintendent of
the Madison Correctional Facility (“Superintendent
Davis”), whom Ms. Whitted has sued under 42 U.S.C.
§ 1983 and state-law theories [Dkt. No. 10]. For the
reasons detailed herein, the motion is GRANTED.
and Procedural Background
litigation was initiated by Ms. Whitted, an Indiana prisoner
who, at the time of the events related to this case, was
housed at IDOC's Madison Correctional Facility. Ms.
Whitted has alleged that on January 13, 2016 Mr. Konkle
coerced her into accompanying him to the correctional
facility's locked basement, where he pressured her to
have sexual intercourse with him, [Dkt. No. 1
(“Compl.”)] at 2. She further alleges that over
the course of the five previous months, Mr. Konkle
“engaged in a regular pattern of manipulative comments,
overly familiar, flirtatious conduct, and intimate personal
association with Whitted.” Id. She does not
disclose whether she informed Superintendent Davis or any
other IDOC employee of Mr. Konkle's conduct.
to Ms. Whitted, roughly ten days after this sexual encounter,
on January 23, 2016, she developed a vaginal irritation and,
accordingly, asked Mr. Konkle-in advance of seeking treatment
from the medical office-whether he had a sexually transmitted
disease. Id. Mr. Konkle became angry and accused Ms.
Whitted of intending to disclose the incident in order to get
him fired. Id.
Whitted complains that following her conversation with Mr.
Konkle she was transferred to the Indiana Women's Prison
and segregated from other inmates on January 24, 2017.
Id. at 3. There, Ms. Whitted received medical
attention and treatment for the physical, mental, and
emotional injuries she alleges that she suffered.
the IDOC investigated the incident and Mr. Konkle's
employment was terminated. Id. He was also arrested
for, charged with, and pled guilty to sexual misconduct, in
violation of Indiana law. Id.
16, 2016, Ms. Whitted filed a notice of tort claim naming the
IDOC, the Madison Correctional Facility, and the Office of
the Indiana Attorney General. She filed her Complaint in this
court on December 29, 2017.
Complaint, Ms. Whitted asserts “on information and
belief” that Superintendent Davis “knew of, but
reacted unreasonably to, an objectively substantial risk of
serious harm male correctional officers posed to female
inmates.” Id. at 5. Further, Ms. Whitted
claims “on information and belief” that
Superintendent Davis “knew or should have known Konkle
posed an excessive risk to [her] health or safety and Davis
failed to respond reasonably to that risk.”
Id. Ms. Whitted has asserted that Superintendent
Davis breached duties owed to her by failing to:
implement adequate pre-employment screening for correctional
officer candidates; train male staff on issues relating to
supervision of female inmates; provide or review training
materials prohibiting sexual misconduct; minimize access to
secluded areas and one-on-one contact between male staff and
female inmates; and make a good faith effort to limit the
assignment of correctional officers in female dormitories to
Id. at 5-6. Ms. Whitted further asserts that
Superintendent Davis is personally liable for the tortious
conduct of Mr. Konkle under the doctrines of agency,
vicarious liability, employer-employee relations, master and
servant, respondeat superior, joint venture, contract, and as
a result of her non-delegable duty to ensure that
correctional officers at the Madison Correctional Facility
comply with the Constitution and laws of the United States
(namely the Eighth Amendment) and the State of Indiana.
Id. at 6. Finally, Ms. Whitted claims that
Superintendent Davis's conduct was “of such a
nature that punitive damages should be imposed against her
individually in an amount commensurate with the willful and
malicious or recklessly indifferent acts alleged
February 26, 2018, Superintendent Davis filed a motion
seeking dismissal of Ms. Whitted's claims against her.
Dkt. Nos. 10, 11 (“Def.'s Memorandum of
Law”). Ms. Whitted responded on March 14, 2018,
limiting the scope of her claims against Superintendent Davis
to § 1983 and state-law negligence claims. Dkt. No. 12
(“Pl.'s Resp.”), the dismissal of which is
sought in the pending action. Dkt. No. 14 (“Def.'s
Reply”). The motion is ripe for ruling.
to Dismiss Standard
motion to dismiss before us is based on Federal Rule of Civil
Procedure 12(b)(6). Accordingly, the Court must accept as
true all well-pled factual allegations in the complaint and
draw all ensuing inferences in favor of the non-movant.
Lake v. Neal, 585 F.3d 1059, 1060 (7th Cir. 2009).
The complaint must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,
” and its “[f]actual allegations must . . . raise
a right to relief above the speculative level.”
Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629,
633 (7th Cir. 2007) (internal citations omitted). The
complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
Fed. R. Civ. P. 8(a)(2). Stated ...