Redman v. County of San Diego, 87-6139

• Citation: 896 F.2d 362
• Decision Date: 13 February 1990
• Docket Number: No. 87-6139,87-6139
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 362

896 F.2d 362

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.

No. 87-6139.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 6, 1988.

Decided Feb. 13, 1990.

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

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

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

Before TANG, THOMPSON and O'SCANNLAIN, Circuit Judges.

DAVID R. THOMPSON, 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. The district court granted a directed verdict in favor of the defendants in Redman's action brought under 42 U.S.C. Sec. 1983. The court determined that Redman had failed to establish facts sufficient for a reasonable jury to conclude that Redman had been treated with "reckless indifference" or with "callous disregard" for his safety. We interpret the district court's ruling as a determination that Redman failed to make a sufficient showing that he had been treated with "deliberate indifference" to his due process right to personal security. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

FACTS ¹

In January 1983, Clifton Redman was booked into San Diego County's South Bay Detention Facility ("SBDF") 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. Redman was approximately 5'6" tall and weighed 130 pounds. He had no prior criminal convictions.

About one week after his arrival, Redman was transferred from the "young and tender" unit into a "general population" or "mainline tank" 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. He was being held for a parole violation. According to an inmate status report on file at the facility, Clark was an aggressive homosexual. He had been transferred into the mainline tank from a homosexual module because of prior incidents of coercing and manipulating other inmates for sexual favors.

On the first night in his new cell, Redman was raped by Clark. The next day Redman telephoned his brother and his girlfriend and told them of the assault and his fear of future attacks. The mother of Redman's girlfriend called the SBDF 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. One of the guards on duty called Redman down to the deputy station and, within the view of Clark and other inmates, asked Redman whether he was having any problems. Redman denied having any. Redman later testified he did so because he was afraid of what would happen to him, his girlfriend and his family if he told the truth in the presence of Clark and the other inmates. 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 inmates who raped Redman was older and larger than he, 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 was subsequently charged with sodomy. Each pleaded guilty to the sexual assaults.

After his release, Redman brought suit in district court under 42 U.S.C. Sec. 1983 against defendants County of San Diego, Sheriff John Duffy, and various officials employed at the South Bay Detention Facility.

The district court's directed verdict resulted in dismissal of the case as to all defendants. Redman appeals.

ANALYSIS

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 and 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).

A. Defendant County of San Diego

At the outset we address the district court's dismissal of the County of San Diego. The County may not be held liable for acts of jail officials unless "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). There is no evidence in the record that SBDF personnel were acting pursuant to an official policy when they placed Redman in Clark's cell, or when they responded as they did to the warning phone call. If anything, the personnel were acting in contravention of inmate classification policies when they assigned Redman to Clark's cell.

We conclude that there is no evidence from which a reasonable jury could find that the County of San Diego has any liability to Redman under 42 U.S.C. Sec. 1983. Accordingly, the district court's directed verdict as to the County is affirmed. ²

B. Individual Defendants

The individually named defendants in this case are: Sheriff John Duffy, the Sheriff of San Diego County, who was in charge of all county detention facilities at the time Redman was incarcerated; Captain Richard Beale of the Sheriff's Department, who had supervisory responsibility of the SBDF; Lieutenant Robert Witcraft, second in command at the SBDF; Sergeant Daniel Canfield, a shift supervisor and watch commander at the SBDF; and Deputy Gene Turner, who worked as a station deputy in the mainline module.

Section 1983 ³ 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). It is not disputed here that the defendants were acting under color of state law. The issue is whether the defendants' conduct deprived Redman of a federally-protected right; in this case, a right protected by the Constitution.

1. Level of Culpability Required to Constitute a Deprivation

"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].' " Leer, 844 F.2d at 633 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978)).

Redman contends the individual county defendants 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 ...[, a]nd 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, 73 L.Ed.2d 28 (1982) (citations omitted). This circuit has stated that "insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate the prisoner's due process rights." Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir.1988) (citing Youngberg v. Romeo, 457 U.S. at 315-16, 102 S.Ct. at 2457-58). The question is, what level of improper conduct must a pretrial detainee show to establish "insufficient protection," and thus a violation of his right to personal security under the fourteenth amendment? This question has been left open by the Supreme Court. Daniels v. Williams, 474 U.S. 327, 334 n. 3, 106 S.Ct. 662, 666 n. 3, 88 L.Ed.2d 662 (1986); Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986). See also City of Canton, Ohio v. Harris, --- U.S. ----, 109 S.Ct. 1197, 1204 n. 8, 103 L.Ed.2d 412 (1989).

Our inquiry involves consideration of where on the bench of culpability to make the mark by which to measure the defendants' conduct in this section 1983 action. At one end of the bench is "mere negligence." This is not sufficient to trigger the substantive due process protections of the fourteenth amendment. Daniels v. Williams, 474 U.S. at 330-32, 106 S.Ct. at 664-65; Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). See also Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.1989). Near the opposite end is "deliberate indifference." This kind of conduct is sufficient to trigger a convicted prisoner's constitutional rights under the eighth amendment, Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986), and therefore it also must be sufficient to trigger a pretrial detainee's constitutional rights under the fourteenth amendment. See Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983). Should we then set the mark at the point where the defendants' conduct reaches "deliberate indifference," or should some lesser mark be notched, e.g., "gross negligence" or "recklessness?"

We hold that jail officials' conduct toward...