942 F.2d 1435 (9th Cir. 1991), 87-6139, Redman v. County of San Diego

Docket Nº:87-6139.
Citation:942 F.2d 1435
Party Name:Clifton REDMAN, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Capt. Richard Beall; Lt. Robert Witcraft; Sgt. Dan Canfield; Deputy Gene Turner, and Does I through XX, Inclusive, Defendants-Appellees.
Case Date:August 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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942 F.2d 1435 (9th Cir. 1991)

Clifton REDMAN, Plaintiff-Appellant,


COUNTY OF SAN DIEGO; Capt. Richard Beall; Lt. Robert

Witcraft; Sgt. Dan Canfield; Deputy Gene Turner,

and Does I through XX, Inclusive,


No. 87-6139.

United States Court of Appeals, Ninth Circuit

August 26, 1991

Argued En Banc and Submitted Oct. 11, 1990.

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[Copyrighted Material Omitted]

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William D. Daley, Murphy & Daley, Chula Vista, Cal., for plaintiff-appellant.

Nathan C. Northup, Deputy County Counsel, San Diego, Cal., for defendants-appellees.

Betty Wheeler, American Civil Liberties Union, San Diego, Cal., for amicus.

Appeal from the United States District Court for the Southern District of California.


LEAVY, Circuit Judge:

Clifton Redman was raped while confined at the South Bay Detention Facility, a jail operated by the San Diego County Sheriff's Department. Redman brought an action under 42 U.S.C. § 1983 against the County and various jail officials and employees.

The district court granted a directed verdict in favor of the defendants. The court determined that Redman had failed to present evidence sufficient for a reasonable jury to conclude that Redman had been treated with "reckless indifference" or with "callous disregard" for his safety.

We consider this case en banc after a panel decision that affirmed the district court in Redman v. County of San Diego, 896 F.2d 362 (9th Cir.1990). We borrow extensively from that decision for our statement of facts.

We have jurisdiction under 28 U.S.C. § 1292. We affirm in part and reverse in part.


In January 1983, Clifton Redman was booked into San Diego County's South Bay Detention Facility where he was held as a pretrial detainee. Upon arrival Redman, then eighteen years old, was placed in a receiving module designated as a "young and tender" unit. 1 Redman was 5'6" tall and weighed approximately 130 pounds. He had no prior criminal convictions.

About one week after his arrival, after a verbal exchange with another inmate, Redman was transferred from the "young and tender" module into an area housing the general population of the jail, or the "mainline" module. Redman was assigned to a two-bunk enclosed single cell with an inmate named Kevin Clark. Clark was twenty-seven years old, approximately 5'11" tall, and weighed 165 pounds. The jail officials knew that Clark was incarcerated for violating parole upon a conviction for a sex offense. According to an inmate status report on file at the facility, Clark was an aggressive homosexual. He had been

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transferred into the mainline module from the homosexual module because of reported incidents of coercing and manipulating the homosexual inmates for sexual favors. 2

On Redman's first night in his new cell, Clark raped Redman. Clark warned Redman not to tell anyone, or he would harm Redman's girlfriend and her family, whose address he had obtained from a letter in Redman's locker. The next day Redman telephoned his brother and his girlfriend and told them of the assault, and that he feared future attacks. The mother of Redman's girlfriend, Mrs. Pearson, called the South Bay Detention Facility and told jail personnel that Redman had been threatened with sexual assault and that her daughter had been threatened in the event Redman told anyone. She did not report a rape because she did not know that one had occurred. Trial Transcript, at 155. She did, however, report that Redman "was very afraid of being [sexually] assaulted, and ... had been threatened by people who were also in the jail, if he told anyone about any of the threats that had been made to him, that they could hurt our daughter because they knew our address from letters she had sent Clifton." Id., at 151. 3 Mrs. Pearson testified that the deputy with whom she spoke responded to the effect that the South Bay Detention Facility was not operating "a baby-sitting service."

In response to this call, one of the guards on duty called Redman down to the deputy station via intercom and, within view of Clark and other inmates, asked Redman whether he was having any problems. 4 Redman replied he was not. Redman

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later testified that he lied because he was afraid of what might happen to him, his girlfriend, and her family if he told the truth. No further investigation or inquiry was made by any jail official. Redman was left in the cell with Clark.

The next day Redman was raped again, this time not only by Clark but by two other inmates. Each of the three rapists was older and larger than Redman, and each had an extensive criminal record. After the assaults, Redman again telephoned his brother, this time talking and crying for an extended period of time in an open area of the facility. The next morning Clark raped Redman again. That afternoon Redman was released from custody.

Each of the inmates who raped Redman subsequently was charged with sodomy. Each pleaded guilty.

After his release, Redman brought this action in district court under 42 U.S.C. § 1983 against the defendants County of San Diego, Sheriff John Duffy, and various individuals employed at the South Bay Detention Facility. The district court directed a verdict in favor of all defendants. Redman appeals.


Redman contends the individually named defendants committed acts that deprived him of his constitutional right to personal security under the due process clause of the fourteenth amendment. The Supreme Court "has noted that the right to personal security constitutes a 'historic liberty interest' protected substantively by the Due Process Clause. And that right is not extinguished by lawful confinement, even for penal purposes." Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982) (citations omitted). Further, insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate the prisoner's due process rights. Id. at 315-16, 320, 102 S.Ct. at 2457-58, 2460.

We review the propriety of a directed verdict de novo. Meehan v. County of Los Angeles, 856 F.2d 102, 106 (9th Cir.1988). "We must view the evidence in the light most favorable to the nonmoving party and draw all inferences in favor of that party." Id. A directed verdict should be granted when the evidence permits only one reasonable conclusion as to the verdict. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 345 (9th Cir.1978). "If conflicting inferences may be drawn from the facts, the case must go to the jury." Rutherford v. City of Berkeley, 780 F.2d 1444, 1448 (9th Cir.1986) (citing Neely, 584 F.2d at 345).

The Level of Culpability Required to Constitute a Constitutional Deprivation

Section 1983 5 requires a claimant to prove (1) that a person acting under color of state law (2) committed an act that deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir.1988). There is no dispute here that the defendants acted under color of state law. The issue is whether the defendants' conduct deprived Redman of a federally protected right.

"A person deprives another 'of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].' "

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Id. at 633 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978)).

We must resolve the level of improper conduct that must be shown toward a pretrial detainee to establish insufficient protection and thus a violation of the constitutional right to personal security under the fourteenth amendment. The Supreme Court has decided that conduct that amounts to "mere negligence" by prison officials is not sufficient to trigger the substantive due process protection of the fourteenth amendment. Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). The threshold of conduct that will trigger that protection has been left open by the Supreme Court. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 n. 8, 109 S.Ct. 1197, 1204-05 n. 8, 103 L.Ed.2d 412 (1989); Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986); Daniels v. Williams, 474 U.S. at 334 n. 3, 106 S.Ct. at 666 n. 3. Thus we must determine what conduct showing a greater level of culpability, such as "recklessness," "gross negligence," or "deliberate indifference," should apply to prison officials' treatment of a pretrial detainee. We begin with the purpose of the due process clause.

"The Due Process Clause of the Fourteenth Amendment provides: '[N]or shall any State deprive any person of life, liberty, or property, without due process of law.' Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." Daniels v. Williams, 474 U.S. at 331, 106 S.Ct. at 665 (citations omitted). The purpose of the clause is to protect individuals from a government's arbitrary exercise of its powers. Id. Thus, the clause traditionally has protected against deliberately chosen, but arbitrary government actions.

We now examine how the due process clause has been applied to protect pretrial detainees in a jail or prison context. 6 We are mindful that a liberty interest protected by the due process clause...

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