Scott v. Moore

• Decision Date: 17 June 1996
• Docket Number: No. 93-8603,93-8603
• Citation: 85 F.3d 230
• Parties: Artelia M. SCOTT, Plaintiff-Appellant, v. George E. MOORE, individually and as an employee of Killeen Police Department, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 230

85 F.3d 230

Artelia M. SCOTT, Plaintiff-Appellant, v. George E. MOORE, individually and as an employee of Killeen Police Department, et al., Defendants-Appellees.

No. 93-8603.

United States Court of Appeals Fifth Circuit.

June 17, 1996.

Order on Rehearing July 17, 1996.

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

Diane C. Van Helden, Barish & Van Helden, Austin, TX, for appellees.

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

Before POLITZ, Chief Judge, and WISDOM and SMITH, Circuit Judges.

WISDOM, Circuit Judge:

Plaintiff/appellant, Artelia M. Scott, appeals the summary judgment dismissal of her 42 U.S.C. § 1983 inadequate staffing claim against the City of Killeen, Texas ("the City"), and its Chief of Police, Francis L. Giacomozzi. Because we conclude that a material fact issue remains in dispute, we VACATE and REMAND to the district court for further proceedings.

I. FACTS AND PROCEEDINGS

The plaintiff/appellant, Artelia Scott, was arrested on December 31, 1988, for public intoxication, assault, and resisting arrest. She was taken to the Killeen City Jail, processed by the female jailer on duty at that time, and placed in a holding cell to await arraignment. When the female jailer's shift ended, she was relieved by a male jailer, defendant George Moore. At that time, Moore was the only correctional officer on duty. Over the course of his eight hour shift, Moore repeatedly entered Scott's cell and sexually assaulted her. Scott was unable to report the incidents until she was released from custody on January 2, 1989, because Moore followed her to the phone and stood next to her during her three telephone calls to her mother.

When Chief Giacomozzi received Scott's complaint against Moore, he asked Scott to give a statement to the police and take a lie detector test. Scott agreed to do so. After the results indicated that Scott was telling the truth, Giacomozzi transferred the matter to the criminal investigation division, and placed Moore on administrative leave. Moore resigned four days later, and subsequently pleaded guilty to criminal charges.

Scott filed suit in state court against Moore, the City, and Chief Giacomozzi, alleging various state and federal constitutional claims. Moore subsequently declared bankruptcy and was dismissed from the suit after the bankruptcy proceeding discharged Scott's claim against him. The City and Giacomozzi removed the case to federal court, where they filed their first motion for summary judgment. Scott did not file a response, and the district court granted the motion. On appeal, this court affirmed the district court's grant of summary judgment on all grounds except inadequate staffing of the jail, as both the defendants' motion and the district court's ruling failed to address this aspect of Scott's suit. ¹

After remand, the City and Giacomozzi filed a second motion for summary judgment on the issue of inadequate staffing. The district court granted the motion. Scott filed a timely notice of appeal of this decision.

II. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo, applying the same standards as those that govern the district court's determination. ² Summary judgment may be granted only if the court, viewing the facts and inferences in the light most favorable to the non-moving party, determines that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ³ The moving party must demonstrate by competent evidence that no issue of material fact exists. ⁴ The non-moving party then has the burden of showing the existence of a specific factual issue which is disputed. ⁵ If any element of the plaintiff's case lacks factual support, a district court should grant a defendant's motion for summary judgment. ⁶

B. Scott's § 1983 Claim:

We first examine the allegations in Scott's complaint to determine a context for examining the facts and inferences in the record. ⁷ Specifically, Scott alleges that "the City and Giacomozzi failed to provide proper and adequate staffing of the City jail by having only one individual on duty, and/or by not having a female member present when female prisoners are confined." She further alleges that the defendants/appellees "knew or should have known that the inadequate and improper staffing created an unsafe and uncontrolled situation for abuse and assaults of people confined in the jail."

Section 1983 provides that, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects or causes to be subjected, any ... person within the jurisdiction [of the United States] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured." ⁸ Therefore, an actionable § 1983 claim must allege a deprivation of rights secured by the Constitution by a person acting under color of state law. ⁹

Although municipalities are "persons" within the meaning of § 1983, they may only be held liable if the constitutional harm suffered was the result of an "official policy, custom, or pattern." ¹⁰ Municipalities may not be held liable under either a theory of respondeat superior or vicarious liability. ¹¹ They also may not be held liable under § 1983 for mere negligence in oversight. ¹² Nonetheless, prison officials may not ignore obvious dangers to inmates. ¹³

Therefore, in order to hold a municipality liable, a plaintiff must show that his or her constitutional deprivation was caused by the city's adoption of (or failure to adopt) the particular policy, and that such action went beyond mere negligent protection of the plaintiff's constitutional rights. ¹⁴ That is, an alleged inadequacy in a municipal policy must amount to "an intentional choice, not merely an unintentionally negligent oversight". ¹⁵

In sum, proper analysis of a § 1983 claim against a municipality requires three determinations. First, we must decide if the City promulgated "an official policy, practice, or custom," which could subject it to § 1983 liability. ¹⁶ Next, we determine if the policy can be linked to a constitutional violation. ¹⁷ And finally, we must ascertain if the municipality's action (or inaction) extended beyond mere negligent oversight of the plaintiff's constitutional rights. ¹⁸

1. The Existence of an "Official Policy"

This court has defined an "official policy" for the purposes of § 1983 liability to be either: 1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or 2) a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. ¹⁹ We find that the facts of this case present an "official policy" under the second of these definitions.

The City's Code of Ordinances vests Chief Giacomozzi, as Chief of Police, with administrative and policy-making authority. Therefore, Giacomozzi's acts or omissions as policy-maker for the jail may subject both him and the city to § 1983 liability. ²⁰ While acting under his policy making authority, Giacomozzi issued "General Order MSC-1-78," ("the General Order") consisting of rules relating to the management and administration of the City jail. These rules mandate in relevant part that male personnel dealing with female prisoners should search the female prisoner's coats or outer garments, but may not frisk them or conduct a pat-down search unless there is a strong probability of finding a weapon. In addition, female prisoners booked into the jail must be "thoroughly and completely searched" by female personnel with the jailer remaining nearby, then placed in a cell separated from male prisoners. And finally, the regulations provide that "[a]nytime a prisoner is released from his or her cell for any reason other than release from custody, the prisoner shall be searched upon release from and return to the cell." The General Order does not regulate the number of jailers needed to staff the jail. ²¹

Appellant Scott conceded at oral argument that this policy is constitutional as written. Therefore, the General Order is not an actionable "official policy" under the first definition of that term. ²² Scott contends, however, that there is an "unofficial" staffing policy which is actionable under the second definition of "official policy." We agree.

Since the late 1970's the City jail has been staffed by four jailers, with one jailer working each of four shifts: a.m., p.m., day, and relief. At the time of Scott's detention, two male and two female employees filled these positions. Thus, a female detainee would necessarily be guarded by a single male jailer at some time during a twenty-four hour period. This staffing arrangement made it difficult, if not impossible, for the City jailers to follow the mandates of the General Order. ²³ Yet, this conflict between the written General Order and the day-to-day staffing procedures existed for at least ten years before Scott's detention. In this situation, we conclude that the consistent custom or "unofficial policy" of having only one unsupervised male jailer present when a female detainee is in the jail constitutes an "official policy" for the purposes of § 1983 liability. ²⁴

2. Existence of a Constitutional Violation:

The next step in our § 1983 analysis is to determine if Scott's complaint alleges a constitutional deprivation. ²⁵ The sexual assault on Scott while she was a pre-trial detainee is not covered by the Eighth Amendment, as the Eighth Amendment's prohibition against "cruel and unusual punishment" applies only to convicted prisoners and not to pretrial detainees like Scott. ²⁶ ...