Opinion
Civil Action No. 3:99-CV-0313-L
May 8, 2001
MEMORANDUM OPINION AND ORDER
Before the court are Defendant City of Garland's ("the City" or "Garland") Motion for Summary Judgment, filed November 6, 2000, and Plaintiff's (Stella Louise Burns, or "Burns") Motion to Supplement Response, filed February 22, 2001. Burns' motion seeks to introduce a supplemental deposition of Defendant Shane Taylor Goodman ("Goodman") conducted on January 25, 2001. In his initial deposition on July 21, 2000, Goodman invoked his Fifth Amendment privilege against self-incrimination and declined to answer several questions. The City moved to compel his testimony, asserting that because Goodman had already pleaded guilty to sexual assault and official oppression he faced no further risk of criminal prosecution. In the alternative, the City sought to strike Goodman's testimony in its entirety. Burns opposed striking Goodman's previous testimony, but supported the City's request to compel his testimony in a second deposition. Pursuant to 28 U.S.C. § 636(b), the motion to compel was referred to the United States Magistrate Judge, who ordered that a second deposition be held during which Goodman would respond to all relevant questions. Under the circumstances, the court considers it appropriate to consider the supplemental deposition and Burns' related arguments in ruling on the motion for summary judgment, and therefore grants her motion. After careful consideration of the motion, response, reply, supplemental response, supplemental reply, briefs, evidence submitted by the parties, and applicable law, the court grants the City's motion for summary judgment.
For future reference, motions such as this should follow the same procedure as laid out in Local Rule 15.1 for filing amended complaints. A copy of the material should be attached to the motion as an exhibit, with an original and copy of the proposed filing submitted with the motion but not attached to it. Only the motion to supplement or motion for leave to file should be included in the official record until the court grants the motion and directs the clerk to file the proposed filing. The court further notes that the City filed a "response" to Burns' supplemental response — essentially a supplemental reply. Local Rule 7.1 provides for a motion, response, and reply. Strictly speaking, the City should have requested leave to file its supplemental reply using the same procedure described above. As a result, both the supplemental response and the supplemental reply were improperly filed as part of the official record without the court's permission. Despite the procedural deficiencies, the court concludes that, under the circumstances, both filings should and will be considered.
I. Factual and Procedural Background
The facts contained herein are either undisputed or, where they are disputed, presented in the light most favorable to Plaintiff as the nonmovant.
On the evening of March 3, 1997, Burns was arrested by Garland police officers for public intoxication, subjected to a "pat down" search (which she characterizes as excessive and unnecessary), and transported to the Garland jail. Goodman was one of the detention officers on duty that night. At the jail, Burns was subjected to sexually suggestive remarks by officers. After being fingerprinted, photographed, and booked, she was required to change into a jail "uniform," a loose fitting gown. In the course of what the City describes as a "dress out," she was required to remove all of her clothing, except her partially sheer thong/bikini style panties, before putting on the gown. The "dress out" took place in a small room with a window in the door, and one of the officers stood in the doorway while she undressed and pushed open the door when she attempted to shut it. Other officers, including Goodman, also were able to view her intermittently during this period.
Burns had consumed three or four beers earlier in the day, and had an altercation with her boyfriend. Plaintiff's Appendix at 91. The summary judgment evidence is not entirely clear as to the actual charges on which she was arrested. Her First Amended Complaint ("Complaint") ¶ 8 refers to arrest for two Class C misdemeanors, one of which was public intoxication. The City makes no reference to the other misdemeanor for which she was arrested, but Burns' affidavit states that it was assault, apparently related to an altercation with her boyfriend that evening. Plaintiff's Appendix at 91. The charges were later dropped. Id. at 98.
Burns submits summary judgment evidence, in the form of her affidavit, that the only officers she saw at the jail during this incident were male. See Plaintiff's Appendix at 92.
Burns was then placed in a cell, empty at the time but in which another female prisoner was placed subsequently. Goodman later moved her to another cell, which was empty. He returned to Burns' cell several times during the early morning hours of March 4th, during which he hugged her, pressed his body against hers, kissed her, and raised her gown and fondled her breast. On his last two visits to the cell, Goodman raped her and then forced her to perform oral sex. Before he left, he told her not to say anything, and offered to give her a ride home and take her to dinner.
Goodman stated during his second deposition that one motive behind moving Burns to the second cell was the possibility of having sexual relations with her. Plaintiff's Supplemental Appendix at 101.
There is perhaps some indication of flirting between Burns and Goodman, and she apparently did not seek help before the activity escalated to sexual relations. The court does not necessarily credit these, but even if it did, they are totally irrelevant to the question of consent and sexual assault. Goodman was a detention officer cloaked with official authority, and a special relationship existed between him and Burns. Even if the sexual conduct was "consensual," Goodman's conduct in using his authority as a detention officer to engage in sexual activity with an arrestee would be inherently coercive and would still violate Burns' substantive due process rights. Cf. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450-52 (5th Cir.), cert. denied, 513 U.S. 815 (1994) (teacher's acts of engaging in "consensual" sexual relationship with student violated student's substantive due process right to bodily integrity). As noted below, Goodman pled guilty to a criminal charge of sexual assault of Burns.
After Goodman's final visit, Burns used the telephone in the cell to call a friend and ask her to get help. Two detectives subsequently came to the cell and released her. Although not entirely clear from the summary judgment record, this intervention apparently was the result of the call Burns made to her friend. She and all the detention officers on duty were questioned on the morning of March 4th, and Goodman was arrested. Burns was taken to Parkland Hospital for examination and treatment later that day.
During the course of the investigation, detectives determined that in an earlier incident, on February 9, 1997, Goodman and another officer had made sexual advances and requests for sexual favors of another female prisoner, Shana Reed ("Reed"), in return for affording her trustee status. Goodman was indicted for sexual assault (Burns) and official oppression (Reed), and pled guilty to both offenses. During the course of his second deposition, Goodman also stated that he had engaged in oral sex with another female prisoner at some time between the incidents with Reed and Burns.
Plaintiff's Supplemental Appendix at 112-13.
Burns filed this suit on February 16, 1999 against Goodman, Doyle Edwards ("Edwards"), the City, and other unnamed officers, asserting a claim pursuant to 42 U.S.C. § 1983 for violation of her constitutional rights (to be free from sexual assault and illegal strip searches) and state law claims for negligence and assault. She seeks compensatory and punitive damages, as well as costs and attorney's fees. The other unnamed officers were never served and therefore are not part of this suit. Goodman did not file an answer, and the court entered default judgment against him (reserving the issue of damages) on September 30, 1999. During discovery, Burns determined that her identification of Edwards, as the training officer who allegedly encouraged inappropriate behavior by Goodman, was incorrect. On her motion, the court dismissed all claims against Edwards with prejudice on October 26, 2000. Other than the issue of damages to be assessed against Goodman, the only remaining claims for determination are those against the City.
The complaint also refers to excessive force, but in the context of, and indistinguishable from, the sexual assault. Burns sued the individual jail guards, but not the police officers who initially arrested her, so she evidently is not complaining of excessive force in connection with the arrest itself. Burns' response also refers to sex discrimination, but the court sees no indications of possible unequal treatment of Burns based on her sex other than in connection with the strip search and sexual assault. There are allegations that might constitute a hostile work environment claim of employment discrimination — for example, watching pornographic or sexually explicit videos at work — but Burns was not an employee. The court therefore concludes that Burns' allegations of excessive force and sex discrimination are subsumed in the allegations of an illegal strip search and sexual assault.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id., see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis A. § 1983 Claims
Burns claims violation of her constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution, to be free from illegal strip searches and sexual assault. The City argues that, regardless of the merits of her claims, she has insufficient evidence to satisfy the prerequisites for municipal liability. To resolve this issue, the court first reviews the relevant authority which serves as a backdrop under which a local government can be held liable pursuant to 42 U.S.C. § 1983. A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id.; see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking 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. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see also Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) ( en banc) ( per curiam); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) ( en banc) ( per curiam), cert. denied, 472 U.S. 1016 (1985). A plaintiff must identify the policy, connect the policy to the governmental entity itself, and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). A plaintiff must establish that the governmental entity through its deliberate conduct was the moving force behind the injury or harm suffered and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County, 520 U.S. at 403-04.
Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
final authority to establish municipal policy with respect to the action ordered. . . . The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee, agency, or board and cannot review the action or decision of the employee, agency, or board. See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
1. Strip Search
The City argues that its official policy differentiated between a "dress out" (what Burns was purportedly subjected to) and a "strip search." The Garland Police Department Prisoner Search Guidelines, policy # 53.18, identifies a "strip search" as follows:
A strip search is a procedure where a person is required to remove all clothing. The person is then searched by visual observation of the body, usually along with a complete search of the clothing removed. Strip search procedures may vary slightly. Some require the person to strip only to underwear while others may require removal of all clothing.
Defendant's Appendix at 15. The official policy further provides:
Prisoners booked into the Garland Detention Center will not routinely be strip searched absent reasonable suspicion of weapons or contraband. . . . Any officer who causes a strip search of an arrested person must have articulable reason(s) to justify such a search involving the following guidelines. . . . At no time will a strip search be conducted in view of the video monitors, other prisoners, or in the view of department members of the opposite sex.Id. at 16-17. The dress out process, on the other hand, is described as follows: "Prisoners will be allowed an area of privacy to change from their personal to detention clothing, out of view of detention personnel, cameras, and the general prisoner population." Id. at 19 (emphasis added). The Garland Police Department Taking and Storage of Prisoners [sic] Property, policy #53.06, further explained how much clothing must be removed in the course of changing into detention clothing: "Females will be issued jail dresses and will be allowed to keep their bottom undergarments. Male prisoners will be provided jail overalls and are not allowed to keep their bottom undergarments." Id. at 10.
Prison strip search policies are normally upheld "where justified by the demands of institutional security," but "[s]earches of minor offense arrestees who would be detained pending the posting of bond, often for short periods of time, have been scrutinized much more closely." Watt v. City of Richardson Police Dep't, 849 F.2d 195, 197 (5th Cir. 1988) (emphasis added). For those, such as Burns, charged with minor offenses, "[a] strip search is permissible only if the official has an individualized suspicion that the arrestee is hiding weapons or contraband." Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996) (citing Watt). The City argues that its official policy was constitutional, as it required "reasonable suspicion of weapons or contraband" before a strip search was authorized, and the dress out procedure required prisoners to strip but not to be searched, that is, subjected to a visual inspection by officers. Burns does not dispute the official policy, but argues that there was a pervasive and widespread practice on the night shift for a detention officer to observe prisoners while they were "dressing out." The court agrees that if this was the customary practice, it would constitute a strip search under the common sense meaning of the term as well as the City's definition in its policy. In order to preserve this claim, Burns must therefore show the existence of a genuine issue of material fact as to: 1) a pervasive and widespread practice; and 2) actual or constructive knowledge on the part of someone with policy-making authority.
Burns offers deposition testimony of Goodman and his training officer on the night shift, Mark Lamb ("Lamb"). Her characterizations of the evidence are exaggerated to say the least, but a reasonable juror could infer from the deposition testimony that observation of prisoners by officers while they changed clothes, by standing in the open doorway, was a common practice on the night shift. See Plaintiff's Appendix at 5, 71. The evidence is tenuous at best concerning whether female prisoners were routinely observed by male officers while changing clothes, id., as allegedly happened to Burns. The court is unaware, however, of any case holding that a strip search (without individualized suspicion of weapons or contraband) is unconstitutional only if the prisoner is observed by a member of the opposite sex.
The deposition by Goodman by itself would be insufficient to show that this was a persistent practice, as (other than isolated incidents of filling in for other officers) Goodman was transferred to the night shift only about a week before the incident. Id. at 2. Without showing that the incidents extended over a longer period of time, a plaintiff can hardly demonstrate that the incidents constitute a "custom." The deposition by Lamb, however, strengthens Burns' position. At the time of the incident, Lamb had worked at the Garland jail for two and a half to three years. See id. at 67. It is unclear whether all of that period had been spent on the night shift, to which the "custom" was allegedly limited. It therefore is questionable whether even the testimony by Lamb suffices to show a "custom" on the night shift. The court assumes arguendo that Lamb's testimony concerned practices on the night shift that were fairly consistent throughout the period of Lamb's employment. If not for other deficiencies in Burns' arguments, the court might be required to reconsider this assumption.
Lamb expressed the purpose of the dress out as a check for contraband and weapons, id. at 70, further support for a conclusion that the dress out procedure was a de facto strip search, but there was no indication that observation of prisoners while disrobing was limited to those prisoners for whom there was an individualized suspicion of weapons or contraband. In fact, Goodman's testimony indicates a probable correlation between the likelihood of observation and the attractiveness of female prisoners. See Plaintiff's Supplemental Appendix at 108. That factor simply cannot be an acceptable basis for the determination of whether to strip search a prisoner.
The appropriate analytical approach generally is to "construe the [strip search] policy as applied rather than on the basis of general hypotheticals." Watt, 849 F.2d at 198. When the policy is "susceptible of constitutional application," it is appropriate to "construe [the] policy on a case-by-case basis, if necessary, rather than to throw it out." Id. The City notes that Burns had a prior arrest for possession of marijuana under two ounces, consisting of a single cigarette, approximately four months before the incidents that led to this suit. See Defendant's Supplemental Appendix at 2-3. The City does not assert, however, that the decision to observe Burns while she disrobed was motivated by that prior arrest, or any other individualized suspicion of weapons or contraband. Accordingly, the alleged strip search would be a violation of Burns' constitutional rights under Kelly. Because the court is also evaluating the policy for municipal liability, it must consider not only the formal policy and the specific application, as in Watt, but also how it is implemented in custom or practice.
The evidence submitted by Burns is far from conclusive in proving the existence of such a custom. Her burden, however, is not to necessarily prove a custom, but to demonstrate the existence of a genuine issue of material fact. Although her evidence is slight and ambiguous, the court concludes that she has demonstrated the existence of a genuine issue of material fact with respect to whether there was a pervasive, widespread practice on the night shift at the Garland jail of illegal strip searches — that is, observing prisoners while they dressed out regardless of any individualized suspicion of weapons or contraband.
A pervasive, widespread practice, however, is insufficient to constitute official policy for purposes of imposing municipal liability under § 1983 unless policymakers had actual or constructive knowledge of the practice. "Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." Bennett, 728 F.2d at 768. Burns presents no evidence from which to draw an inference of actual or constructive knowledge of the practice by those with policy-making authority. She points to no prior complaints about the alleged practice to the police chief, city manager or city council, or any public discussion of what was taking place on the night shift at the Garland jail.
The determination whether policymakers had constructive knowledge of a custom, for purposes of establishing municipal liability, inherently involves a delicate balancing act. Setting the bar too low — that is, inferring constructive knowledge simply because of a widespread practice — risks collapsing the standard of municipal liability established by Monell and its progeny into respondeat superior, and requiring policymakers to implement excessive controls to prevent constitutional violations. Setting the bar too high — for example, nothing short of the "prolonged public discussion" or "high degree of publicity" mentioned in Bennett — risks weakening the protection afforded citizens, and rewarding policymakers for failure to anticipate potential constitutional violations. Arguably, the bar should be set highest when policymakers have at least taken steps to establish official policies forbidding the actions in question. In such situations, it may be reasonable for policymakers to assume, absent citizen complaints or other indications, that employees are complying with the official policies. See Swain v. Spinney, 117 F.3d 1, 11 (1st Cir. 1997) ("However, it is undisputed that North Reading did have an appropriate policy that was distributed to the force; absent prior claims, it cannot be reasonably inferred that Chief Purnell knew, or should have known, that his officers were not executing that policy.").
Cf. Gilmere v. City of Atlanta, 774 F.2d 1495, 1503 n. 9 (11th Cir. 1985) ("Other courts have adopted a standard of liability which borrows from both ends of the spectrum, permitting a finding of municipal liability where the evidence shows indifference to unconstitutional activity that is so widespread as to permit an inference of actual or constructive knowledge.") (emphasis added) (citing, inter alia, Webster and Bennett), cert. denied, 476 U.S. 1115 (1986). Despite the language used, the court does not interpret Gilmere to stand for the proposition that the practice itself, with nothing more, can suffice to show constructive knowledge.
The City points to evidence that its official policies forbid the practices described, that the policies were communicated to officers including Goodman, and that Goodman and other officers were aware that they could be in trouble if supervisors became aware of violations.
For at least some types of constitutional violations, it is conceivable that the municipality should not only establish policies but also anticipate and establish procedures to detect and correct pervasive violations, even before being put on actual notice. This may be the case, for example, if such violations are highly likely and/or the degree of potential harm is sufficiently severe, while the municipality could easily detect a custom of violations. The court assumes without deciding that, under such circumstances, a plaintiff might be able demonstrate constructive knowledge by showing: 1) a pervasive, widespread practice existed; 2) the violations in question were inherently so serious that policymakers should not rely on official policies/training and wait for complaints; and 3) policymakers could have implemented specific controls that not only could but would have detected the problem. Burns has failed to satisfy even such an expansive interpretation of constructive knowledge. She has identified neither a reason that the City should have anticipated these violations nor a reasonable method by which the City could have readily discovered these violations absent complaints from arrestees. The court concludes that Burns has not established a genuine issue of material fact as to the City's constructive knowledge of a pervasive, widespread practice of illegal strip searches on the night shift at the Garland jail. Accordingly, the City is entitled to judgment as a matter of law on this claim.
For example, if outside investigators periodically visited the jail to observe procedures, it is likely that the officers would simply have ceased their violations of policy until after the investigators left. Undercover officers posing as arrestees might have detected the violations, but that would not be a reasonable procedure absent strong suspicion that illegal strip searches were occurring frequently.
2. Sexual Assault
Burns does not allege a pervasive, widespread practice of sexual assault, although as noted above Goodman alone was involved in three serious incidents of sexual improprieties or worse with prisoners in only a few months on the job. Instead, Burns argues that the City had a custom which indirectly contributed to her sexual assault — failure to adequately supervise detention officers on the night shift, in that frequently only one of the detention officers officially on duty was actually on the premises. Unlike the illegal strip searches, this alleged custom does not facially violate prisoners' constitutional rights — prisoners do not have an explicit constitutional right to properly supervised detention officers. That does not end the inquiry, though. "While an unconstitutional official policy renders a municipality culpable under § 1983, even a facially innocuous policy will support liability if it was promulgated with deliberate indifference to the `known or obvious consequences' that constitutional violations would result." Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).
Burns also asserts policies of inadequate training and permitting sexual misconduct, such as sexually suggestive remarks to female prisoners and the on-duty viewing by officers of pornographic or sexually explicit movies in the break room. The court rejects both alleged policies. The only evidence submitted concerning alleged inadequate training concerns the training of Goodman. Evidence of inadequate training of a single officer simply cannot suffice as evidence of a pervasive, widespread practice that is "so common and well settled as to constitute a custom that fairly represents municipal policy." Even if Goodman were properly trained, such training would not have necessarily prevented the sexual assault. A local government can be overwhelmed with myriad written policies, yet if a detention officer decides to intentionally violate the law, these policies really are of no moment. With respect to the alleged permissive attitude by supervisors toward sexual misconduct, the court concludes that Burns exaggerates the extent of the evidence, and that the summary judgment record simply does not support her characterizations.
The City does not dispute that Burns had a constitutional right not to be sexually assaulted by a detention officer while in the jail, but argues that the City had no policy permitting detention officers on duty on the night shift to leave the premises for extended periods, leaving only one officer on the premises. Burns responds that, while this was not an officially promulgated policy, it was a pervasive, widespread practice which meets the second definition of "official policy" in Johnson. The court must therefore determine whether Burns has established a genuine issue of material fact as to both the existence of the alleged policy and whether such policy was adopted with deliberate indifference to the "known or obvious" possibility of sexual assaults of female prisoners.
A detainee "has a constitutional right to be secure in her bodily integrity and free from attack by" correctional officers. Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (citing Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir. 1986)).
As evidence of this alleged custom of detention officers on duty frequently leaving the premises (for meals or snacks, to work out, for brief breaks, to talk to police officers, etc.) so that for short periods of time only a single officer was present, Burns offers deposition testimony of Goodman and Lamb. See Plaintiff's Appendix at 4, 9, 10, 20, 25, 67-69, 78; Plaintiff's Supplemental Appendix at 113-14. The court further notes evidence that a minimum staffing considered necessary to properly man the jail was three detention officers, see Plaintiff's Appendix at 59, 62, and evidence showing that a senior officer visiting the jail on one occasion two days before the incident found only Goodman present, and later verbally reprimanded the jail supervisor. Id. at 25. Also, on two or three occasions during the night of the incident, senior officers visiting the jail found only Goodman present. Plaintiff's Supplemental Appendix at 102-03. The court concludes that Burns has established a genuine issue of material fact as to a pervasive, widespread practice, although the evidence does not clearly establish how long the periods of time were during which only a single officer would be in the jail.
As with the alleged practice of illegal strip searches, her evidence is slight and ambiguous. Further, testimony by Goodman would be insufficient due to his short time on the job, but testimony by Lamb suffices (barely) to show a persistent practice. See supra note 9.
There is some evidence suggesting that the periods during which only one officer was on the premises could be greater than 40 minutes. See Plaintiff's Appendix at 69.
As with the alleged illegal strip searches, a pervasive, widespread practice is not enough to impose municipal liability — Burns must also provide evidence sufficient to establish a genuine issue of material fact as to policymakers' actual or constructive knowledge of the practice. Burns again essentially relies on the practice itself, without any showing of prior complaints about the alleged practice, or public discussion of what was taking place on the night shift at the Garland jail. Although it might be easier to detect this specific practice than the alleged practice of illegal strip searches, there was also less apparent need to do so, since the practice in question did not facially violate prisoners' constitutional rights. Burns presents no evidence to support a conclusion that the City's policymakers, in exercising their responsibilities and absent complaints that guards abused prisoners, should have implemented stronger controls to ensure that at least two officers were on the premises at all times. The court therefore concludes that Burns has not established a genuine issue of material fact as to the City's constructive knowledge of a pervasive, widespread practices of leaving a single officer on duty on the night shift at the Garland jail for extended periods of time. Because her sexual assault claim relies on this alleged custom, the City is entitled to judgment as a matter of law on this claim.
As described above, Burns does present evidence that senior officers were aware of specific instances where only one officer was on the premises during the night shift. She presents no evidence, however, that such instances were communicated to the City's policymakers. The court also notes that the only instances for which she provides evidence occurred either the night she was assaulted or two nights earlier — hardly enough time for the information to have progressed up through the chain of command and for the policymakers to have taken corrective action that would have prevented her assault.
The court further notes that even if Burns had demonstrated a genuine issue of material fact as to this alleged policy, she would still have to demonstrate that the policy was implemented with "deliberate indifference" — that is, that the possibility of sexual assault of female prisoners was one of the "known and obvious consequences" of the City's alleged policies of illegal strip searches (during the course of which male detention officers might see partially disrobed female prisoners) and leaving a single officer on the premises during the night shift for undetermined periods of times.
At issue is how obvious the risk was. Burns has submitted no evidence, however, tending to show that sexual assault of female prisoners was an obvious risk of the alleged policy of leaving only one officer on duty for extended periods of time, and it is not clear whether the risk is facially obvious. The court is skeptical as to whether that requirement has been met, but need not decide the issue.
Cf. Farmer v. Brennan, 511 U.S. 825, 842 (1994) ("Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious."). Technically, Farmer involved the standard for liability of prison officials for violations of the Eighth Amendment, which is a subjective standard, while the deliberate indifference test for municipal liability for failure to train or supervise is an objective standard. Id. at 839-42. Logically, if an obvious risk is enough to conclude that an official had knowledge of, and disregarded with deliberate indifference, the risk under Farmer's subjective standard, the same conclusion must result under the objective standard applicable here.
The City cites a decision by the Tenth Circuit to the contrary. See Barney v. Pulsipher, 143 F.3d 1299, 1309 n. 8 (10th Cir. 1998) ("The record reveals no previous incidents of sexual harassment or assault of female inmates at Box Elder County Jail which would provide actual or constructive notice to the County that its one-jailer policy and failure to adopt certain policies would result in the specific injuries alleged here. Nor are we persuaded that a plainly obvious consequence of failing to adopt such policies or having one male jailer on duty is the sexual assault of female inmates."); see also Hovater, 1 F.3d at 1068 ("To find a harm present in these circumstances would, in effect, require the conclusion that every male guard is a risk to the bodily integrity of a female inmate whenever the two are left alone. There is absolutely no evidence in this record to support that conclusion. A constitutional violation may not be established by a reliance upon unsupported assumptions."). In the absence of guidance from the Fifth Circuit, the court finds the Tenth Circuit's reasoning persuasive, but need not decide the issue because of its ruling that Burns has not demonstrated a genuine issue of material fact as to constructive knowledge and therefore a "policy" under which the City might be found liable
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The court in no way condones the conduct set forth regarding the strip search and the sexual assault of Burns. Indeed, the facts surrounding this case are regrettable, shocking, and profoundly disturbing, particularly those related to the assault of Burns. Because of a lack of evidence as to constructive notice of the alleged practices, the City has dodged a bullet. That Burns was unable to establish a genuine issue of material fact, sufficient to meet the high standard required to impose municipal liability, in no way undermines the seriousness of what took place and Burns' injury. What happened to her should never have occurred, and was not attributable solely to the actions of one rogue jail detention officer. Negligence was present on the part of some officials of the City; however, to hold the City liable for this negligence would be totally repugnant to the teachings of Monell and its progeny, that is, governmental liability cannot be premised on a theory of respondeat superior. The court takes this opportunity to admonish the City that it needs to thoroughly review practices on the night shift at the jail and take necessary actions to prevent abuses in the future. Although the City escapes liability in this case, it is now on notice. If there are any future incidents under such circumstances, the City will not be able to shield itself from liability by asserting lack of notice.
B. State Law Claims for Negligence and Assault
The City argues that Burns' state law claims for negligence and assault are barred by the doctrine of sovereign immunity, and that the waiver of sovereign immunity in the Texas Tort Claims Act ("TTCA"), Tex. Civ. Prac. Rem. Code Ann. § 101.001 et seq. (Vernon 1997), does not apply. "Under the doctrine of sovereign immunity, a governmental unit is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. The Texas Tort Claims Act ("TTCA") creates a limited waiver of sovereign immunity." Medrano v. City of Pearsall, 989 S.W.2d 141, 143-44 (Tex.App. — San Antonio 1999, no pet.) (citations omitted). The City "is a governmental entity to which the doctrine of sovereign immunity is applicable." Id. at 144.
Assault is an intentional tort, and as such the waiver of sovereign immunity in the TTCA does not apply. Tex. Civ. Prac. Rem. Code Ann. § 101.057; Medrano, 989 S.W.2d at 144. Burns offers no argument to the contrary. See id. ("When an affirmative defense like sovereign immunity is established, the burden of raising a disputed fact issue shifts to the non-movant."). Accordingly, Burns has not demonstrated the existence of a genuine issue of material fact with respect to the assault claim, and the City is entitled to judgment as a matter of law on that claim.
Negligence is not an intentional tort, and the limited waiver of sovereign immunity under the TTCA therefore must be considered. Because the City asserted the defense of sovereign immunity, Burns must demonstrate the existence of a genuine issue of material fact as to waiver under the TTCA. Id. Burns does not address the sovereign immunity issue in her response, arguing only that evidence supports the state law claims. Because the burden falls on her to raise a disputed fact issue as to waiver of sovereign immunity, and she fails to do so, the City is entitled to judgment as a matter of fact on the negligence claim. In any event, the court concludes that the TTCA waiver of sovereign immunity is not applicable here.
In order for immunity to be waived under the TTCA, the claim must arise under one of the three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver. The three specific areas of liability for which immunity has been waived are: (1) injury caused by an employee's use of a motor-driven vehicle; (2) injury caused by a condition or use of tangible personal or real property; and (3) claims arising from premise defects.Id. None of these categories of waiver is implicated in this case.
IV. Conclusion
For the above-stated reasons, Burns has not established a genuine issue of material fact as to her claims against the City, and the City is entitled to judgment as a matter of law as to all claims. Defendant City of Garland's Motion for Summary Judgment is therefore granted. All of Burns' claims against the City are hereby dismissed with prejudice. All that remains for determination is the amount of damages to be awarded against Goodman on all claims against him, the liability for which was established by the court's default judgment of September 30, 1999.
The deadlines for filing pretrial materials and objections thereto, and the scheduled pretrial conference and trial setting, as established in the court's Amended Scheduling Order of December 29, 2000, are hereby vacated. Plaintiff is directed to file the pretrial materials regarding the damages phase of the trial by May 18, 2001. The court plans to hold the trial on damages on May 29, 2001 at 9:00 a.m. Should Plaintiff decide not to pursue damages against Goodman, she shall notify the court no later than May 18, 2001 by 12:00 noon.
It is so ordered.