Sanders v. St. Louis County, 83-1357

• Decision Date: 30 December 1983
• Docket Number: No. 83-1357,83-1357
• Citation: 724 F.2d 665
• Parties: June Aaron SANDERS, Appellant, v. ST. LOUIS COUNTY; Alexander Forde and Frederick C. White, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 665

724 F.2d 665

June Aaron SANDERS, Appellant, v. ST. LOUIS COUNTY; Alexander Forde and Frederick C. White, Appellees.

No. 83-1357.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 30, 1983.

Decided Dec. 30, 1983.

Lashly, Caruthers, Baer & Hamel, P.C., Amy Rehm Hinderer, Robert E. McWilliams, Jr., St. Louis, Mo., for appellant.

Eugene K. Buckley, Evans & Dixon, St. Louis, Mo., for appellees.

Before BRIGHT, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

PER CURIAM.

June Aaron Sanders filed this suit under 42 U.S.C. Sec. 1983 against St. Louis County and two county employees alleging deprivations of his constitutional rights. After trial, the jury found for Sanders on his claim against the county, but for the individual defendants. The district court ¹ granted the county's motion for judgment notwithstanding the verdict, and Sanders appeals.

Sanders was convicted of second degree murder and incarcerated at the Missouri State Penitentiary. In 1977 he filed a post-conviction motion with the state court to set aside the conviction. On July 23, 1980 he was transferred to the St. Louis County Jail so that he could attend a local court hearing on this motion. Sanders spent ten days at the jail. Sanders alleges that there was a well-established custom at the St. Louis County Jail of mistreating inmates who challenged their convictions in court, and that such a custom violated his due process rights. ²

Sanders was the only witness for the plaintiff. According to his trial testimony, a guard, defendant Alexander Forde, refused to allow Sanders access to the gym, stating that "we don't owe anything to writ writers." Sanders also testified that a cellmate, one Herman Arch, terrorized and intimidated him, and once pushed him into a bunk bed; the push resulted in a cut lip. Sanders stated that a nurse refused to treat him for the cut lip, telling him that "we are not obligated to writ writers." Finally, Sanders testified that he sent letters to his social worker, defendant Fred White, and to the warden requesting a transfer to a cell away from Arch, but that he was not transferred.

The district court, in setting aside the verdict against St. Louis County, found that Sanders had failed to establish that a custom of mistreating "writ writers" was in place. In the circumstances of this case, we agree.

The county does not dispute that Sanders cannot constitutionally be treated less favorably than other inmates because of his writ writing. It is settled that an inmate's constitutional right of access to the courts cannot be impaired, either directly, by intercepting mail or prohibiting contact with an attorney, or indirectly, by threatening or harassing an inmate in retaliation for filing lawsuits. Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir.1981); Ferranti v. Moran, 618 F.2d 888, 892 (1st Cir.1980); Russell v. Oliver, 552 F.2d 115, 116 (4th Cir.1977). It is not necessary that the inmate succumb entirely or even partially to the threat as long as the threat or retaliatory act was intended to limit the inmate's right of access. Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 386 (1979). Although the jury found for the individual county employees, it appears that Sanders may have had evidence of unequal treatment sufficient to raise a jury question as to whether county employees had denied him privileges because of his "writ writing." Russell v. Oliver, 552 F.2d at 116.

However, Sanders must prove more than that individual county employees violated his constitutional rights. Generally, a county is protected from liability when an employee violates another's civil rights. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). But the absence of respondeat superior liability does not always shield a county. When the employee's unconstitutional act can be characterized as execution of an established governmental policy or custom, the county is charged with the deprivation. Id. at 694, 98 S.Ct. at 2037.

In Monell, the Supreme Court stated that the unconstitutional act must have occurred pursuant to "a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." 436 U.S. at 694, 98 S.Ct. at 2037. In McLaughlin v. City, 662 F.2d 1385, 1388 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982), the Eleventh Circuit found that a police chief's failure to act after a citizen complaint that a police officer had beaten him did not make the chief liable for a second beating; the first "isolated incident" was not enough to establish a policy or custom of ignoring citizen complaints of beatings. In Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980), the court noted that official policy or custom requires that a city impliedly or tacitly authorize, approve, or encourage illegal conduct by its employees. In Turpin, the court noted that a "policy" could not ordinarily be inferred from a single incident of arrest without probable cause; the court found that two such arrests--of the same person--did establish such a policy. Id. at 202; see generally Powe v. City of Chicago, 664 F.2d 639, 649-51 (7th Cir.1981), and cases discussed therein.

In this case, the jury decided that Sanders had proven the existence of a custom or policy. In ruling on the county's motion for judgment n.o.v., the district court was required to view the evidence in the light most favorable to Sanders and give Sanders the benefit of all legitimate inferences. E.g., Banks v. Koehring Co., 538 F.2d 176, 178 (8th Cir.1976). The verdict must be sustained if there is substantial evidence supporting it. Id. We apply that same standard in our review. Dulin v. Circle F Industries, Inc., 558 F.2d 456, 465 (8th Cir.1977).

There is very little evidence in favor of Sanders. There are the two statements by county employees that writ writers were not entitled to the same privileges other inmates received, accompanied by denials of use of the gym and noncritical medical care. The inaction of the social worker and the warden on Sanders' request for a transfer were not directly connected to Sanders' status as a writ writer, but that inaction does lend some support to Sanders' contentions.

We are simply unable to conclude that this skimpy evidence is sufficient to show that St. Louis County had a policy or custom of treating writ writers less favorably. The deprivations were less serious than those in Turpin, and were much less likely to come to the attention of those in charge than the...