IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT

IN AND FOR DESOTO COUNTY, FLORIDA

CIVIL DIVISION

 

 

WILLIAM WESTERVELT, an individual,

 

            Plaintiff,

 

v.                                                                         CASE NO.: 

DEPARTMENT OF CORRECTIONS,

 a political subdivision of the state of Florida,

DAVID LAWRENCE, in his individual capacity

as Prison Warden, and PATRICK MURPHY, in his

individual capacity as Assistant Prison Warden,

 

            Defendants.

 

 

PLAINTIFF’S COMPLAINT

 

The plaintiff, William Westervelt, by and through his undersigned attorneys, files this Complaint against defendants, Department of Corrections, a political subdivision of the state of Florida (hereinafter “DOC”), David Lawrence, in his individual capacity as Prison Warden, and Patrick Murphy, in his individual capacity as Assistant Prison Warden and, as grounds for, would state as follows:

 

GENERAL ALLEGATIONS

 

1.         This is an action for civil damages in excess of $15,000.00, exclusive of interest, costs, and attorney’s fees.

 

2.         Venue is proper for the Circuit Court of DeSoto County because:

(a) At all times relevant and material to this Complaint, Plaintiff was incarcerated within DeSoto Correctional Institute, a Florida penal facility operated by Defendant DOC, located in DeSoto County.

(b) Venue is pursuant to Florida Statutes § 47.051 because the acts that give rise to Plaintiff’s claim occurred in DeSoto County.

 

3.         At all times material to this Complaint, Defendant DOC was authorized to operate and manage DeSoto Correctional Institute, wherein Plaintiff, a Florida citizen, was serving a term of incarceration.

 

4.         At all times material to this Complaint, Defendant David Lawrence was employed as Warden of DeSoto Correctional Institute.

 

5.         At all times material to this Complaint, Defendant Patrick Murphy was employed as Assistant Warden of DeSoto Correctional Institute.

 

6.         On or about September 15, 2013, Plaintiff made members of the prison staff, specifically a guard and the Chaplin, aware of gang-related activity occurring in his unit. Plaintiff acknowledged to prison staff that while he was being harassed and pressured to take part in the gang activities, he did not wish to participate.

 

7.         On or about October 17, 2013, Plaintiff’s sister, Victoria Smith contacted the Assistant Warden, Defendant Murphy via e-mail documenting her concerns for Plaintiff’s safety with respect to threats by gang members within the prison. The e-mail was followed up with several phone calls and requests by Victoria Smith that Defendant Murphy meet with Plaintiff before he finally agreed to do so.

 

8.         During the month of October 2013, Plaintiff, hoping to alleviate the gang violence, met with Defendant Patrick Murphy and provided him with names of gang leaders as well as specific instances of gang violence and threats against the safety of Plaintiff and other inmates. No apparent action was taken by any member of prison supervision to address or even investigate these allegations.

 

9.         Over the course of the following months, the threats and harassment by members of the prison gang continued. Plaintiff and his sister, Victoria Smith, had reason to believe that the ongoing threats were intensified by the fact that Plaintiff had spoken to prison authorities about his predicament and revealed to them details about the gang’s illegal and violent tendencies. Defendants Murphy and Lawrence did nothing in response to Plaintiff’s concerns or to ensure his safety in light of the threats.

 

10. Defendants Lawrence and Murphy chose not to remove Plaintiff from a known dangerous situation, so he remained in General Population and thereby susceptible to further harassment, threats and potential bodily harm.

 

11.       At about 6:00am on January 3, 2014, one of the members of the prison gang, who had been previously named by Plaintiff as one of the leaders who had been threatening his life and safety, attacked Plaintiff and slit his throat with a knife. Plaintiff was transported out of the prison via helicopter and surgery was performed to close the neck wound.

 

12.       Defendant Lawrence contacted Plaintiff’s sister, Victoria Smith, to inform her of the incident and that Plaintiff would survive. Defendant Lawrence also told her of his decision to treat the occurrence as an aggravated assault, despite Victoria Smith’s objections. She contended that it ought to be regarded as an attempted murder based on the ongoing nature of the threats and violence.

 

 

 

 

COUNT I

(Negligence)

 

13.       Plaintiff adopts, re-alleges and affirms the allegations in Paragraphs 1 through 12 as fully incorporated herein.

 

14.       Defendant DOC, as operator of DeSoto Correctional Institute, owed a common law duty of care to those inmates in its care, custody and control.

 

15.       Defendant DOC was negligent and breached the duty of care owed to Plaintiff by allowing Plaintiff to be violently attacked by known gang members within the prison.

 

16.       Prior to the incident, Defendants Lawrence and Murphy, as well as other prison employees, were notified on several occasions by Plaintiff and by his sister, Victoria Smith, of the threats by other inmates and concern for Plaintiff’s safety.

 

17.       Based on this knowledge, it was reasonably foreseeable that Plaintiff’s life would be in danger if he continued to be housed in close proximity to the inmates who were harassing Plaintiff and repeatedly threatening his life.

 

18.       Defendant Murphy was also made aware of specific instances of violence committed by the inmates who were threatening Plaintiff. Due to the retaliatory nature of many prison gangs, it was foreseeable that the threats and harassment would escalate as a result of Plaintiff’s attempt to cooperate with prison authorities by providing this information.

 

19.       Defendants neither investigated the information that Plaintiff provided nor took any steps to protect him from further threats, intimidation, or physical retaliation from members of the prison gang.

 

20.       Defendants breached their duty of care owed to Plaintiff by failing to take reasonable measures to protect his safety, such as transferring him to another cell block or prison or addressing the recurring violent activity at its source.

 

21.       As a direct and proximate result of the negligence of the defendants, Plaintiff suffered severe bodily injury, pain and suffering, disfigurement, fear, and mental anguish. Plaintiff will have a lengthy scar across the front of his neck, making this injury permanent and continuing in nature.

 

COUNT II

(42 U.S.C. § 1983 – Eight Amendment)

 

22.       Plaintiff adopts, re-alleges and affirms the allegations in Paragraphs 1 through 12 as fully incorporated herein.

 

23.       Prisoners do not have an absolute right to be protected from violence at the hands of other inmates, but prison officials nevertheless have a duty of ordinary or reasonable care in protecting against inmate violence.

 

24.       The duty of care arises when the prison officials know of a risk to an inmate’s safety or have reason to anticipate danger. At that point, prison officials are charged with reacting reasonably in order prevent that danger from occurring.

 

25.       Prisoners are in a unique, confined environment, unable to seek help on their own or escape the danger of assault at the hands of other inmates. In light of this fact, the breach of a prison official’s duty of care to protect inmates in the care of the prison can amount to cruel and unusual punishment.

 

26.       Defendants Lawrence and Murphy were contacted on numerous occasions with regard to the gang violence that was occurring in the facility, and, specifically, the threats and harassment directed toward Plaintiff.

 

27.       Defendants Lawrence and Murphy disregarded a known or anticipated danger to Plaintiff’s safety when they failed to respond reasonably to multiple reported concerns by both Plaintiff and his sister, Victoria Smith.

 

28.       Plaintiff suffered a constitutional injury when he was brutally assaulted by another inmate as a result of defendants’ failure to address the reported concerns for his safety.

 

29.       In failing to respond to take reasonable precautions to avoid this attack, defendants demonstrated deliberate indifference to Plaintiff’s constitutional rights.

 

WHEREFORE, the Plaintiff, William Westervelt, demands judgment against the defendants, jointly and severally, together with interest and reasonable costs and fees.

 

Plaintiff demands a trial by jury as to all issues.

 

DATED this 27^th day of January, 2014.