United States District Court, E.D. North Carolina, Western Division
WILLIAM S. WALKER, Plaintiff,
DELIA DURHAM, et al., Defendants.
TERRENCE W. BOYLE, District Judge.
On September 24, 2012, William S. Walker ("Walker"), a state inmate, filed this civil rights action pursuant to 42 U.S.C. § 1983. Walker names two defendants: Delia Durham ("Durham"), a staff counselor in the Alcohol and Chemical Dependancy Program ("ACDP") at Wayne Correctional Institution ("Wayne Correctional"), and Francis Marczyk ("Marczyk"), the ACDP Program Director at Wayne Correctional. Specifically, Walker claims violation of his right to be free from cruel and unusual punishment, sexual abuse, unwanted touching, and for violations of his right to privacy and bodily integrity against defendant Durham. Walker claims deliberate indifference to the sexual abuse and harassment suffered, and for facilitating the violation of his right to be free from cruel and unusual punishment, sexual abuse, unwanted touching, and for violations of his rights to privacy and bodily integrity against defendant Marczyk. Before the court at this time are motions for summary judgment filed by defendant Durham [D.E. 34] and defendant Marczyk [D.E. 39], a motion to strike filed by plaintiff [D.E. 45], and a motion to strike filed by defendant Marczyk [D.E. 51]. All motions are properly before the court, and ripe for determination.
I. Factual Background and Procedural History
In 1997, when Walker was 17 years old he was arrested and was taken to the Stokes County Jail, and he has been in jail or prison since that time. Compl. [D.E.1] ¶¶ 1, 15; Aff. Walker ¶¶ 2, 3 [D.E. 49]. He was admitted to a North Carolina prison facility when he was 18 years old. Aff. Walker ¶ 3. In 2000, Walker completed alcohol and drug treatment at Foothills Correctional where staff asked Walker to consider becoming a Peer Counselor (or Treatment Assistant) given his interaction with others during the treatment programs. Id . ¶ 4. Walker agreed and was invited to train as a Peer Counselor in the Alcohol and Chemical Dependency Program (ACDP) at Wayne Correctional. Id . Peer Counselors are prisoners who counsel other prisoners with alcohol and drug dependencies. Id . Peer Counselors meet with ACDP program participants daily to give them advice and serve as role models. Id . Each Peer Counselor is supervised by a Staff Counselor. Id . Walker was the youngest Peer Counselor at that time at an adult facility. Id.
Being a Peer Counselor was important to Walker. Id . ¶ 5. Prior to becoming a Peer Counselor, Walker had never experienced the trust that was given to him by the men that he worked with and the staff that supervised him. Id.
Defendant Durham acted as Walker's Staff Counselor from 2005 to 2010. Id . ¶ 6. Beginning in September 2008, Durham repeatedly chose Walker as her Peer Counselor instead of following the standard peer rotation. Id . ¶ 8. She requested Walker specifically for jobs, brought him gifts of food and personal cards, and touched him excessively on the arm and back. Id . Durham would routinely come to Walker's housing block at Wayne Correctional and request him for minor jobs that she normally did herself before Walker met her. Id . At the end of the day, Durham would give Walker her purse, a book or something to carry so he could walk out with her to the front door at Wayne Correctional. Id.
In the summer of 2009, it is alleged that Durham began sexually abusing Walker. Id . ¶ 9. At the time the abuse began, Durham was approximately 61 years old and Plaintiff was 29 years old. Id . ¶ 13. The abuse included intercourse, oral sex, kissing, and masturbation. Id . ¶ 9. Walker has never been in an adult relationship prior to this situation. Id . ¶ 10. Initially, he enjoyed the praise and attention Durham gave him because he had never experienced anything like this before. Id . But as the abuse continued, Walker began to feel a conflict and resentment as well as guilt, shame, and fear. Id . Walker feared retaliation by Durham. Id . ¶¶ 10-12. For example, Durham told Walker she had stabbed an inmate in a previous drug and alcohol rehabilitation program at DART Cherry, carried a pistol, and that the superintendent would believe anything she said given he was her neighbor. Id . ¶ 11.
Durham sexually abused Walker almost daily from the summer of 2009 until March 2010, and from June 2010 until October 2010. Id . 12. Durham told Walker that she loved him, that she had a lot of money, and that she was going to get him out of prison. Id . ¶ 13.
By February, Marczyk, the ACDP Program Director for Wayne, was observing that Walker was frequently in Durham's office. Aff. Marczyk ¶ 17. He also suspected Durham might be requesting Walker to work for her even though Walker was not then her assigned treatment assistant. Id . ¶ 18. Marczyk spoke with Parks who was Durham's direct supervisor and William Henry and Joe Mason regarding his observations. Id . ¶ 17. Marczyk also spoke to Walker and Durham about his observations. Id.
As for Walker's affidavit regarding Marczyk, he states the following:
During March of 2010, Defendant Marczyk took me into his office for the fourth or fifth time, along with William "Bill" Hemy, another ACDP staff member. In that conversation he expressed that Defendant Parks had reported Durham's abuse to him. Marczyk told me that I was spending too much time with Durham and that I needed to get away from her. Marczyk had warned me several times earlier that the staff had been reporting to him that about the appearance of me and Durham spending so much time alone concerned them. This was the first time Marczyk had another staff member in his office when he was warning me to stay away from Durham. I asked Marczyk what should I do when a staff member requests for me to do something and how could I tell a staff member no so I could avoid a disciplinary write up as well as being fired from my job as a Peer Counselor and being transferred. During this meeting with Marcyk and Mr. Henry, Durham came into the office and stated she needed to see me when I was done. After Durham left the office I looked at Marcyzk for guidance on how I should handle this request. Marczyk just shrugged his shoulders.
Aff. Walker ¶ 14. Walker requested a transfer to another prison, but Durham remained employed as a Staff Counselor at Wayne Correctional. Id.
Marczyk arranged to have Walker transferred to Pender Correctional, where Walker believed he was supposed to stay for six months. Id . ¶ 15. However, Walker was returned to Wayne Correctional at defendant Marczyk's request, in approximately June of 2010, three months earlier than scheduled. Id . Parks did assign Walker to a different Staff Counselor, Ms. Hooks. Id . Regardless, Durham continued to have access to Walker and allegedly resumed having regular sexual intercourse with him. Id.
The signs ("red flags") of Durham's sexual abuse should have been obvious to prison officials including defendant Marczyk. Id . ¶ 16. For example, Durham singled him out for tasks that were assigned to other inmates. Id . Durham frequently called him into her counseling group even though he was not assigned to work with her. Id . On several occasions, Durham returned to work after her usual hours for the purpose of seeing Walker. Id . Likewise, it is alleged that on numerous occasions Parks had Walker leave Durham's group because he was not supposed to be there. Id . ¶ 17. If Parks was not working on site, he would call in and have another staff member remove Walker from whatever activity he was engaging in with Durham. Id . ¶¶ 16, 17.
Walker feared reporting Durham's abuse because he did not want to be put in segregation, nor did he want to be transferred farther away from home while his father was ill. Id . ¶ 18. Walker was afraid Durham would allege Walker raped her. Id . He felt no one would believe his version of the events, given the inequities in their status, staff member compared to inmate. Id.
In October of 2010, Wayne Correctional Assistant Superintendent Kevin Barnes initiated an internal investigation into the relationship between Durham and Walker. Id . ¶ 19; Aff. of Ex. [D.E. 41] Ex. D. This investigation was based on information from Parks. Aff. Barnes [D.E. 44] ¶ 10. The investigation included a search of Walker's locker which revealed photographs of Durham. Id . 12. After the investigation, Durham was issued a written warning for her involvement in an unduly familiar relationship that crossed professional boundaries with Walker. Aff. of Ex. [D.E. 41] Ex. B. Subsequently, on June 12, 2011, Walker submitted a confidential grievance alleging sexual abuse and a PREA investigation was initiated. Aff. of Ex. [D.E. 41] Ex. D. Effective April 17, 2012, NCDPS terminated Durham's employment for unacceptable personal conduct. Id . Ex. D. Marczyk received a written warning for his failure to report in early 2010 the concerns regarding undue familiarity between Durham and ...