Scott v. Moore

• Decision Date: 20 May 1997
• Docket Number: No. 93-8603,93-8603
• Citation: 114 F.3d 51
• Parties: Artelia M. SCOTT, Plaintiff-Appellant, v. George E. MOORE, Individually and as an Employee of the City of Killeen Police Department; F.L. Giacomozzi, in his Official Capacity as Chief of Police, and City of Killeen, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 51

114 F.3d 51

Artelia M. SCOTT, Plaintiff-Appellant, v. George E. MOORE, Individually and as an Employee of the City of Killeen Police Department; F.L. Giacomozzi, in his Official Capacity as Chief of Police, and City of Killeen Texas, Defendants-Appellees.

No. 93-8603.

United States Court of Appeals Fifth Circuit.

May 20, 1997.

Bobby R. Taylor, Monita Rose Johnson, Austin, TX, for plaintiff-appellant.

Diane J. Van Helden, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, and WISDOM, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

While a pretrial detainee at the Killeen city jail, Artelia Scott was sexually assaulted by a jailer, defendant George Moore. She brings a constitutional claim under 42 U.S.C. § 1983, asserting that the attacks resulted from improper staffing procedures at the jail. In particular, she argues that constitutionally adequate staffing would include having, at a minimum, a female jail official, or at least two male jail officials, on duty whenever a female pretrial detainee is in custody.

We affirm the summary judgment in favor of the city, concluding that the Constitution does not require the level of staffing Scott demands. In so doing, we employ a straightforward application of Hare v. City of Corinth, 74 F.3d 633 (5th Cir.1996) (en banc), in which we explained the constitutional standards, under the Due Process Clause, applicable to pretrial detainees in local jails.

I.

Scott was arrested on December 31, 1988, for public intoxication, assault, and resisting arrest. She was taken to the jail, processed by the female jailer on duty at the time, and placed in a holding cell pending arraignment. Moore subsequently replaced the female jailer, entered Scott's cell, and sexually assaulted her repeatedly during the course of his eight-hour shift. After being placed on administrative leave pending a police investigation, Moore resigned and pleaded guilty to criminal charges in connection with the assault.

II.

Scott filed suit in state court against Moore and the city, asserting various constitutional claims. Moore then declared bankruptcy and was dismissed from the suit, whereupon the city removed the case to federal court. The district court granted summary judgment for defendants, and a panel of this court affirmed on all issues except for Scott's inadequate staffing claim under § 1983. See Scott v. Moore ("Scott I "), 987 F.2d 771, No. 92-8284 (5th Cir. Mar. 3, 1993) (per curiam) (unpublished).

After remand, the district court granted summary judgment for defendants on the inadequate staffing claim. A second panel of this court vacated and remanded, whereupon we resolved to hear the matter en banc to consider the proper application of Hare to the instant facts. See Scott v. Moore, 85 F.3d 230 (5th Cir.), vacated for reh'g en banc, 85 F.3d 240 (5th Cir.1996).

III.

A.

In Hare, we reconciled our circuit caselaw regarding pretrial detainees, informed in particular by Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). ¹ We noted that determining which standard to apply in analyzing constitutional challenges by pretrial detainees hinges upon the classification of a challenge as an attack on a "condition of confinement" or as an "episodic act or omission." 74 F.3d at 644. A "condition of confinement" case is a "[c]onstitutional attack[ ] on general conditions, practices, rules, or restrictions of pretrial confinement." Id.

Hence, where a detainee complains of the number of bunks in a cell or his television or mail privileges, ² the wrong of which the detainee complains is a general condition of confinement. In such cases, the reasonable relationship test of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), is apposite, as we may safely assume, by the municipality's very promulgation and maintenance of the complained-of condition, that it intended to cause the alleged constitutional deprivation. See Hare, 74 F.3d at 645 ("Only with such intentionality as a given is the [Wolfish ] test useful."). Under Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874, a constitutional violation exists only if we then find that the condition of confinement is not reasonably related to a legitimate, non-punitive governmental objective. See Hare, 74 F.3d at 640.

In contrast, where the complained-of harm is a particular act or omission of one or more officials, the action is characterized properly as an "episodic act or omission" case and is not amenable to review under the Wolfish test. See Hare, 74 F.3d at 645. In an "episodic act or omission" case, an actor usually is interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act or omission.

Although, in her amended state petition, Scott complains generally of inadequate staffing, i.e., "by having only one individual on duty, and/or by not having a female member present when female prisoners are confined," the actual harm of which she complains is the sexual assaults committed by Moore during the one eight-hour shift--an episodic event perpetrated by an actor interposed between Scott and the city, but allegedly caused or permitted by the aforesaid general conditions.

In many jail condition cases, the conditions themselves constitute the harm. This is true, for example, where inadequate food, heating, or sanitary conditions themselves constitute miserable conditions. Here, however, Scott did not suffer from the mere existence of the alleged inadequate staffing, but only from Moore's specific sexual assaults committed on but one occasion.

Consequently, this case does not fit well within the conditions-of-confinement category and, in fact, bears a closer resemblance to cases regarding episodic acts by prison employees. Importantly, however, in Hare we carefully noted that the reasonable-relationship test employed in conditions cases is "functionally equivalent to" the deliberate indifference standard employed in episodic cases. See Hare, 74 F.3d at 643; id. at 646.

As in most cases involving incidents at jails, the defendants here are both individual (Moore) and governmental (the city and the police chief in his official capacity). While the specific episode may be perpetrated by one or more persons, any underlying conditions that may have caused it or made it possible are the product of the city's policy, action, or inaction.

Hence, Hare requires that we separate the inquiry pertinent to the episodic act or omission ("the existence of a constitutional violation simpliciter") from that pertinent to the custom, rule, or policy that is alleged to have permitted the act ("a municipality's liability for that violation"). 74 F.3d at 649 n. 4. Specifically, in Hare we described the proper methodology as follows:

We separate the two issues: the existence of a constitutional violation simpliciter and a municipality's liability for that violation. Different versions of the deliberate indifference test govern the two inquiries. Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights. See Farmer [v. Brennan, 511 U.S. 825, 841, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994) ] ("It would be hard to describe the Canton [v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ] understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.").

Id.

So, as to the discrete, episodic act, the detainee must establish only that the constitutional violation complained of was done with subjective deliberate indifference to that detainee's constitutional rights. Id. In the instant case, Scott has met that burden.

Accordingly, we next must determine whether the city may be held accountable for that violation. Under Hare, as we have stated, this latter burden may be met by putting forth facts sufficient to demonstrate that the predicate episodic act or omission resulted from a municipal custom, rule, or policy adopted or maintained with objective deliberate indifference to the detainee's constitutional rights. See Grabowski v. Jackson County Pub. Defenders Office, 79 F.3d 478, 479 (5th Cir.1996) (per curiam) (en banc) (citing Hare, 74 F.3d at 649 n. 4).

B.

There is no genuine issue of material fact concerning whether the city's failure to adopt a policy of additional staffing amounts to objective deliberate indifference. First, there is no showing that the city had actual knowledge that its staffing policy created a substantial risk of harm to female detainees. To the contrary, the city had followed the same staffing procedures since the late 1970's without any incident and had received no complaint of sexual assault by a jailer prior to this incident. As a condition of employment, Moore and the other three jailers underwent a background investigation, medical examination, and polygraph test, none of which revealed any issues of concern. Moore also had been employed previously as a commissioned police officer, without incident, for...