Abraham v. County of Washoe, CIV-R-82-115-ECR.

• Decision Date: 08 September 1982
• Docket Number: No. CIV-R-82-115-ECR.,CIV-R-82-115-ECR.
• Citation: 547 F. Supp. 548
• Parties: Mark ABRAHAM, Plaintiff, v. COUNTY OF WASHOE; a political subdivision of the State of Nevada; Robert J. Galli, individually and in his official capacity as Sheriff of Washoe County, Nevada; and John Does I through XX, Defendants.
• Court: U.S. District Court — District of Nevada

547 F. Supp. 548

Mark ABRAHAM, Plaintiff, v. COUNTY OF WASHOE; a political subdivision of the State of Nevada; Robert J. Galli, individually and in his official capacity as Sheriff of Washoe County, Nevada; and John Does I through XX, Defendants.

No. CIV-R-82-115-ECR.

United States District Court, D. Nevada.

September 8, 1982.

Lawrence J. Semenza, Reno, Nev., for plaintiff.

William G. Cobb, Reno, Nev., for defendants.

ORDER

EDWARD C. REED, Jr., District Judge.

Presently before the Court is a motion to dismiss brought pursuant to Rule 12(b)(6) of the Fed.R.Civ.P. The plaintiff's complaint is a civil rights action arising under the Fifth and Fourteenth Amendments to the U. S. Constitution and brought pursuant to 42 U.S.C. § 1983 seeking redress for injuries and suffering plaintiff allegedly sustained while incarcerated at the Washoe County Jail. Essentially, the defendants contend that plaintiff's claims are predicated upon allegations of negligence and that since plaintiff has available an adequate post-deprivation remedy under state common law the instant action is barred according to the recent quixotic plurality opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Stated simply plaintiff claims that he was sexually assaulted while incarcerated at the Washoe County Jail and that defendants had previous knowledge of sexual assaults occurring as between inmates but failed to adopt adequate protection procedures to prevent such attacks. The gist of the instant motion is that even if the alleged conduct was committed under color of state law and resulted in a deprivation of a privilege or immunity guaranteed by the Constitution, both of which are required in order to state a claim under § 1983, that such acts were not without a remedy according to due process of law since Nevada law provides adequate post-deprivation relief.

Defendants correctly point out that under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) the Eighth Amendment prohibition against cruel and unusual punishment does not apply to pretrial detainees. Instead, it is the Due Process Clause of the United States Constitution, as contained in the Fifth and Fourteenth Amendments, which prohibits the punishment of persons prior to a judgment of conviction. 441 U.S. at p. 535, 99 S.Ct. at p. 1872. The protections given pretrial detainees with respect to conditions of confinement under the Due Process Clause is greater than those afforded by the Eighth Amendment. Manney v. Cabell, 654 F.2d 1280, 1284 (9th Cir. 1980). The operative language in Bell v. Wolfish, supra, 441 U.S. at p. 535, 99 S.Ct. at p. 1872 which must govern here is that:

"In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law."

The finding of the Court, then, is that plaintiff has stated a claim for relief in that the unsafe condition alleged to have existed at Washoe County Jail did constitute a deprivation of liberty without due process of law if found to have amounted to "punishment" of the plaintiff. See Watson v. McGee, 527 F.Supp. 234 (S.D.Ohio 1981). To require, in effect, exhaustion of state remedies in this context would be contrary to the intention of 42 U.S.C. § 1983 and is...