Artelia M. Scott v. George E. Moore, Individually and as an Employee of Killeen Police Department

85 F.3d 230, 1996 U.S. App. LEXIS 18276

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 17, 1996
• Docket: 93-8603
• Status: Published

Opinions

WISDOM, Circuit Judge:

Plaintiffiapp ellant, Artelia M. Scott, appeals the summary judgment dismissal of her 42 U.S.C. § 1983 inadequate staffing claim against the City of Killeen, Texas (“the City”), and its Chief of Police, Francis L. Giaeomozzi. Because we conclude that a material fact issue remains in dispute, we VACATE and REMAND to the district court for further proceedings.

I. FACTS AND PROCEEDINGS

The plaintiff/appellant, Artelia Scott, was arrested on December 31, 1988, for public intoxication, assault, and resisting arrest. She was taken to the Killeen City Jail, processed by the female jailer on duty at that time, and placed in a holding cell to await arraignment. When the female jailer’s shift ended, she was relieved by a male jailer, defendant George Moore. At that time, Moore was the only correctional officer on duty. Over the course of his eight hour shift, Moore repeatedly entered Scott’s cell and sexually assaulted her. Scott was unable to report the incidents until she was released from custody on January 2, 1989, because Moore followed her to the phone and stood next to her during her three telephone calls to her mother.

When Chief Giaeomozzi received Scott’s complaint against Moore, he asked Scott to give a statement to the police and take a he detector test. Scott agreed to do so. After the results indicated that Scott was telling the truth, Giaeomozzi transferred the matter to the criminal investigation division, and placed Moore on administrative leave. Moore resigned four days later, and subsequently pleaded guilty to criminal charges.

Scott filed suit in state court against Moore, the City, and Chief Giaeomozzi, alleging various state and federal constitutional claims. Moore subsequently declared bankruptcy and was dismissed from the suit after the bankruptcy proceeding discharged Scott’s claim against him. The City and Giaeomozzi removed the case to federal court, where they filed their first motion for summary judgment. Scott did not file a response, and the district court granted the motion. On appeal, this court affirmed the district court’s grant of summary judgment on all grounds except inadequate staffing of the jail, as both the defendants’ motion and the district court’s ruling failed to address this aspect of Scott’s suit.¹

After remand, the City and Giaeomozzi filed a second motion for summary judgment on the issue of inadequate staffing. The district court granted the motion. Scott filed a timely notice of appeal of this decision.

II. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo, applying the same standards as those that govern the district court’s determination.² Summary judgment may be granted only if the court, viewing the facts and inferences in the light most favorable to the non-moving party, determines that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.³ The moving party must demonstrate by competent evidence that no issue of material fact exists.⁴ The non-moving party then has the burden of showing the existence of a specific factual issue which is disputed.⁵ If any element of the plaintiffs case lacks factual support, a district court should grant a defendant’s motion for summary judgment.⁶

B. Scott’s § 1983 Claim:

We first examine the allegations in Scott’s complaint to determine a context for examining the facts and inferences in the record.⁷ Specifically, Scott alleges that “the City and Giacomozzi failed to provide proper and adequate staffing of the City jail by having only one individual on duty, and/or by not having a female member present when female prisoners are confined.” She further alleges that the defendants/appellees “knew or should have known that the inadequate and improper staffing created an unsafe and uncontrolled situation for abuse and assaults of people confined in the jail.”

Section 1983 provides that, “[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects or causes to be subjected, any ... person within the jurisdiction [of the United States] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured.”⁸ Therefore, an actionable § 1983 claim must allege a deprivation of rights secured by the Constitution by a person acting under color of state law.⁹

Although municipalities are “persons” within the meaning of § 1983, they may only be held liable if the constitutional harm suffered was the result of an “official policy, custom, or pattern.”¹⁰ Municipalities may not be held liable under either a theory of respondeat superior or vicarious liability.¹¹ They also may not be held liable under § 1983 for mere negligence in oversight.¹² Nonetheless, prison officials may not ignore obvious dangers to inmates.¹³

Therefore, in order to hold a municipality liable, a plaintiff must show that his or her constitutional deprivation was caused by the city’s adoption of (or failure to adopt) the particular policy, and that such action went beyond mere negligent protection of the plaintiffs constitutional rights.¹⁴ That is, an alleged inadequacy in a municipal policy must amount to “an intentional choice, not merely an unintentionally negligent oversight”.¹⁵

In sum, proper analysis of a § 1983 claim against a municipality requires three determinations. First, we must decide if the City promulgated “an official policy, practice, or custom,” which could subject it to § 1983 liability.¹⁶ Next, we determine if the policy can be linked to a constitutional violation.¹⁷ And finally, we must ascertain if the municipality’s action (or inaction) extended beyond mere negligent oversight of the plaintiffs constitutional rights.¹⁸

1. The Existence of an “Official Policy”

This court has defined an “official policy” for the purposes of § 1983 liability to be either: 1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2) a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.¹⁹ We find that the facts of this case present an “official policy” under the second of these definitions.

The City’s Code of Ordinances vests Chief Giacomozzi, as Chief of Police, with administrative and policy-making authority. Therefore, Giaeomozzi’s acts or omissions as policy-maker for the jail may subject both him and the city to § 1983 liability.²⁰ While acting under his policy making authority, Giacomozzi issued “General Order MSC-1-78,” (“the General Order”) consisting of rules relating to the management and administration of the City jail. These rules mandate in relevant part that male personnel dealing with female prisoners should search the female prisoner’s coats or outer garments, but may not frisk them or conduct a pat-down search unless there is a strong probability of finding a weapon. In addition, female prisoners booked into the jail must be “thoroughly and completely searched” by female personnel with the jailer remaining nearby, then placed in a cell separated from male prisoners. And finally, the regulations provide that “[a]nytime a prisoner is released from his or her cell for any reason other than release from custody, the prisoner shall be searched upon release from and return to the cell.” The General Order does not regulate the number of jailers needed to staff the jail.²¹

Appellant Scott conceded at oral argument that this policy is constitutional as written. Therefore, the General Order is not an actionable “official policy” under the first definition of that term.²² Scott contends, however, that there is an “unofficial” staffing policy which is actionable under the second definition of “official policy.” We agree.

Since the late 1970’s the City jail has been staffed by four jailers, with one jailer working each of four shifts: a.m., p.m., day, and relief. At the time of Scott’s detention, two male and two female employees filled these positions. Thus, a female detainee would necessarily be guarded by a single male jailer at some time during a twenty-four hour period. This staffing arrangement made it difficult, if not impossible, for the City jailers to follow the mandates of the General Order.²³ Yet, this conflict between the written General Order and the day-today staffing procedures existed for at least ten years before Scott’s detention. In this situation, we conclude that the consistent custom or “unofficial policy” of having only one unsupervised male jailer present when a female detainee is in the jail constitutes an “official policy” for the purposes of § 1983 liability.²⁴

2. Existence of a Constitutional Violation:

The next step in our § 1983 analysis is to determine if Scott’s complaint alleges a constitutional deprivation.²⁵ The sexual assault on Scott while she was a pre-trial detainee is not covered by the Eighth Amendment, as the Eighth Amendment’s prohibition against “cruel and unusual punishment” applies only to convicted prisoners and not to pretrial detainees like Scott.²⁶ It is clear however, that pretrial detainees are Constitutionally entitled to at least as great a protection in their detention as are convicted prisoners.²⁷ This right arises from the substantive protections of the Due Process Clause of the Fourteenth Amendment, which protects an individual’s liberty interest in bodily integrity.²⁸ Although the Supreme Court has expressed a general reluctance to expand the concept of substantive due process in § 1988 claims,²⁹ it has concluded that the government owes a duty to care for those whom have already been deprived of their liberty before the alleged constitutional violation occurs.³⁰ In such cases, “the Due Process Clause of its own force requires that conditions of confinement satisfy certain minimal standards for pretrial detainees.”³¹

In this case, by detaining Scott on criminal charges, the City had already deprived Scott of her liberty when the alleged violation of her Constitutional rights stemming from Moore’s sexual assault occurred. The City therefore had a constitutional obligation under the Fourteenth Amendment to provide Scott with minimal levels of safety and security. Scott’s claim of inadequate staffing challenges the adequacy of the levels of safety and security given to pretrial detainees in the City’s jail. Therefore, Scott’s claim properly alleges a constitutional violation.

3. Did the City’s Actions Extend beyond Negligent Oversight of Scott’s Rights?

Finally, we address whether the City’s and Giacomozzi’s failure to adequately staff the jail or to adopt a written policy on adequate staffing for the jail extends beyond mere negligent oversight of Scott’s constitutional rights. Resolution of this issue requires us to examine this court’s recent en banc decision in Hare v. City of Corinth, MS.32

In Hare, this court attempted to clarify the divergent case law on the different standards used to measure pre-trial detainees’ constitutional rights to medical care and protection from harm. The en banc court concluded there should be no distinction between cases involving the right to medical care and those involving the right to be protected from harm.³³ The court did find a distinction, however, between cases involving episodic acts and omissions by jail officials, and cases involving general conditions, practices and restrictions of confinement.³⁴ In eases involving episodic acts or omissions by jail officials, the court held that liability attaches only if the officers involved were subjectively and “deliberately indifferent” to the prisoner’s rights.³⁵ This high level of scrutiny insures that municipalities will not be held liable for mere negligence, but will instead only answer for intentional violations of prisoners rights.³⁶

In contrast, in cases involving the general conditions of confinement, there is an automatic assumption that the practice in question was intentional.³⁷ Therefore, in such cases, the proper standard is whether the practice in question was “reasonably related to a legitimate governmental purpose”.³⁸ When this test is properly applied, it is the functional equivalent of the subjective “deliberate indifference” standard applied to the episodic acts of prison officials.³⁹

In the present case, the staffing procedures in question qualify as a general condition of confinement. We therefore need not inquire into Chief Giacomozzi’s subjective intent in allowing a single male jailer to guard female prisoners in such a manner that he would by necessity have to violate the existing General Order. We need only inquire whether the practice was reasonably related to a legitimate government goal.⁴⁰

It is our conclusion that a reasonable factual dispute exists on this point, thereby precluding summary judgment. The defendants have offered only financial considerations as an explanation for the staffing policy at the Killeen City Jail. Although financial considerations may reasonably concern a municipality, such concerns may not trump the constitutional rights of individuals who are left at the mercy of the municipality.⁴¹ Furthermore, the record does not reflect how often the City detains female prisoners, or how difficult it would be to provide for an additional female staff member during those times.⁴²

In addition, the unofficial staffing policy at the Killeen City jail does not appear to serve a reasonable safety goal, and actually contradicts the official safety measures set forth in the General Order. Because the General Order reflects common concerns about the safety and privacy of female inmates, the decision to contradict the mandates of the General Order can actually be interpreted as a sign of deliberate disregard of the constitutional rights of female prisoners.

It is our opinion that a reasonable jury could find that the unofficial staffing policy at the Killeen City Jail resulted in a violation of Scott’s constitutional rights, and that the City’s actions in allowing such inadequate staffing went beyond negligent oversight of those rights. Therefore, we VACATE the district court’s grant of summary judgment on Scott’s § 1983 claim of inadequate staffing, and REMAND for further proceedings.

1 . Scott v. Moore, 987 F.2d 771, No. 92-8284 (5th Cir., March 3, 1993) (unpublished) (per curiam).

2 . Wattman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989).

3 . Fed.R.Civ.P. 56(c).

4 . Isquith v. Middle South Utilities., Inc., 847 F.2d 186, 198-99 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988).

5 . Celotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

6 . Id.

7 . Collins v. City of Harker Heights, TX, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

8 . 42 U.S.C. § 1983 (emphasis added).

9 . Daniels v. Williams, 474 U.S. 327, 329-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir.1993), disagreed with on other grounds, Hare v. City of Corinth, MS, 74 F.3d 633 (5th Cir.1996).

10 . Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-37, 2039, 56 L.Ed.2d 611 (1978).

11 . Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Doe v. Taylor Indep. School Dist., 15 F.3d 443, 452 (5th Cir.) (en banc), cert. denied, - U.S. -, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994).

12 . Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th Cir.1992) (citing, City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989)).

13 . Farmer v. Brennan, - U.S. -, -, 114 S.Ct. 1970, 1973, 128 L.Ed.2d 811 (1994).

14 . Hare v. City of Corinth, MS, 74 F.3d 633 (5th Cir.1996); Colle v. Brazos Cty., TX, 981 F.2d 237, 246 (5th Cir.1993) (concluding that “the ultimate question is whether Brazos County adopted policies creating an obvious risk that pretrial detainees’ constitutional rights would be violated"); Rhyne, 973 F.2d at 392 ("while the municipal policy maker's failure to adopt a precaution can be the basis for § 1983 liability, such omission must amount to an intentional choice, not merely an unintentionally negligent oversight.”).

¹⁵

16 . Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-37.

¹⁷

18 . Hare, 74 F.3d at 643, Colle, 981 F.2d at 246; Rhyne, 973 F.2d at 392.

19 . Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984).

²⁰

21 . The General Order contains only three references to staffing: 1) "[t]he Jailer shall be the booking officer when on duty;” 2) ”[i]n the absence of an on-duty Jailer, the assigned desk officer shall assume the overall duties and responsibilities of the jailer;” and 3) “the arresting officer shall book his or her own prisoner if the desk officer is not available”.

22 . Webster, 735 F.2d at 841.

23 . For example, if a female prisoner has to leave her cell while a single male jailer is on duty, the jailer will have to violate either the rule that the prisoner be searched both upon exiting and reentering her cell, or the rule that all searches of female prisoners be done by a female employee. In this case, Scott left her cell a least three times to use the telephone.

24 . See Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (a "permanent and well settled” custom may provide basis for imposing liability on a municipality) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168, 90 S.Ct. 1598, 1614, 26 L.Ed.2d 142 (1970)); Webster, 735 F.2d at 841, (defining "official policy" as including a "persistent widespread practice of city officials and employees, which although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy”).

25 . Collins, 503 U.S. at 120, 112 S.Ct. at 1066.

26 . Ingraham v. Wright, 430 U.S. 651, 671, n. 40, 97 S.Ct. 1401, 1412, n. 40, 51 L.Ed.2d 711 (1977).

27 . See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).

28 . Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182, 1186 (5th Cir.1986).

29 . Collins, 503 U.S. at 125, 112 S.Ct. at 1068.

30 . Id. at 126-27, 112 S.Ct. at 1069-70.

31 . Id. at 127, 112 S.Ct. at 1070.

32 . 74 F.3d 633 (5th Cir.1996).

33 . Id. at 643.

³⁴

35 . Id. at 643, adopting the standard set forth in Farmery. Brennan, - U.S. -, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

³⁶

37 . Id. at 645.

38 . Id. at 640, adopting the standard se forth in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

³⁹

⁴⁰

41 . See, DeShaney v. Winnebago Cty. Dep’t of Social Services, 489 U.S. 189, 198, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989) (recognizing that “when the state takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being”).

42 . In fact, the deposition testimony of Chief Giacomozzi indicates that the officer in charge of the jail had the discretion to call extra officers from the Killeen City Police Department to the jail in times of need. Yet, inexplicably, this procedure has never been used.