Opinion
Civil Action No. SA-04-CA-584-XR.
January 24, 2006.
ORDER
On this date, the Court considered Defendant Kerr County's Motion for Summary Judgment (docket no. 16).
Plaintiff's Complaint
Plaintiff alleges that on July 26, 2002, while incarcerated in the Kerr County jail, she was raped by jail guard Moses Marrero. Plaintiff alleges that Marrero and Kerr County's conduct violated her rights secured by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff also alleges that Defendants violated 42 U.S.C. § 1983. Plaintiff alleges that Kerr County "propagated, permitted, encouraged and tolerated a policy or custom of permitting untrained, unqualified and unsupervised employees, such as Marrero, to assault and oppress females, such as Plaintiff. Kerr County's failure to train its officers, including Marrero, was the moving force behind Plaintiff's constitutional injury." Further, Plaintiff alleges that Kerr County was aware of facts establishing civil rights violations, but was consciously and deliberately indifferent to Plaintiff's constitutional rights. Plaintiff also asserts an intentional infliction of emotional distress claim and assault claim against Marrero.
Kerr County acknowledges that Marrero had sexual relations with Ms. Hardeman while she was incarcerated, that he was charged with violation of the civil rights of a person in custody, and was convicted of that offense. Kerr County, however, maintains that as a matter of law it is not liable for the actions of Marrero.
Background
The Court's review of the summary judgment evidence submitted in this case reveals that sometime in 2002, Marrero completed an application for employment as a jailer. In that application he indicated that from March 2001 through January 2002, he had been employed as a juvenile detention officer with the Bexar County Juvenile Detention Center and resigned because of a personal conflict with a team leader. Marrero also indicated that from April 1992 through March 1994, he worked as a police officer in the Harlandale Independent School District. He indicated that he resigned from that position and offered no other explanation for his resignation. Otherwise, he also listed that he had been employed as a commissioned security officer for seven private corporate entities at various points in time. Marrero did not answer question number 20 ("Have you ever been fired or asked to resign from any place of employment?"). He also did not answer question number 21 ("Have you ever been . . . [an] unsuccessful candidate for another position requiring peace officer powers?"). Marrero also did not sign his application, which would have certified that all statements made were true and correct.
A record from the Texas Employment Commission indicates that Marrero was discharged by the Harlandale Independent School District because of "improper advances towards high school (female) students. . . ."
Kerr County performed an applicant background investigation on Marrero. When Kerr County called the Bexar County Juvenile Detention Center they were informed that Marrero was honest, dependable and reliable. However, when asked if he was eligible for re-hire, the County was informed that it needed to call the human resources department. No evidence was submitted by the County that indicates any further follow-up was conducted by the County regarding Marrero's re-hire eligibility with the Bexar County Juvenile Detention Center.
Kerr County also contacted various other past employers and personal references and received either a positive or neutral reference. No summary judgment evidence was submitted that indicates that Kerr County ever contacted the Harlandale Independent School District regarding Marrero's past employment. Otherwise, Kerr County discovered that Marrero completed the Basic Police Instructor Course in 1994, and was certified as a Juvenile Detention Officer in May 2001. On March 6, 2002, a psychologist certified that Marrero was in satisfactory psychological and emotional health to perform as a county jailer.
Marrero acknowledged receiving a copy of the Kerr County Sheriff's Department Policy and Procedures Manual, was hired effective March 11, 2002 as a corrections officer, and was certified as an Advanced Peace Officer in April 2002.
On April 19, 2002, he was counseled "about putting his hands on [inmates] even if it was in a joking manner. Also Officer Marrero was counseled about being too friendly with the female inmates, and that all he was to do on the female side was to answer their questions and welfare checks and that was all." Marrero received a second warning on April 29, 2002 "about making phone calls to ex inmates that have been in the county jail. Officer Marrero admitted to calling this female to establish a relationship with her." He was advised that General Order 110-2001 prohibited employees from establishing any personal relationships with offenders. He was also docked two days off without pay. On that same date he was also counseled "for taking the female inmates out of the rec yard and putting them back in their cells without another female officer present. . . ." Marrero was counseled on two other occasions (May 21, 2002 and July 8, 2002) for referring to female inmates as "bitches." He was again docked two days off without pay and warned that future infractions could lead to his discharge from employment.
On July 26, 2002, Plaintiff was originally detained in the general area housing female inmates, but was involved in an altercation with another inmate and removed to a "separation unit." Plaintiff alleges that Marrero conducted several "checks" on her while she was in the separation unit. She alleges that Marrero entered the area she was in while she was preparing to take a shower and that he later returned and raped her. Plaintiff reported the incident to Assistant Jail Administrator Nancy Fees on July 28, and Marrero was interviewed on July 28. He initially denied any improper conduct, but later admitted that he had consensual sex with Plaintiff. Marrero was immediately suspended pending further investigation.
Other female inmates were interviewed to determine if Marrero had engaged in any other improper conduct. One female inmate claimed that Marrero "slapped her on the butt." Another female inmate claimed that Marrero "ran his hands between her legs touching her vaginal area." Another female inmate complained that Marrero "bit her on the butt." Some of the female inmates relayed that they thought Marrero had placed his fingers into the vagina of another inmate. That former inmate was interviewed and denied the allegation. According to the summary judgment evidence before the Court, those allegations were the County's first notice that any of these inmates had any complaints regarding Marrero.
Some of the female inmates interviewed also claimed that Plaintiff had "flashed her breasts" at Marrero and possibly another jail guard on other occasions. Other jail guards alleged that Plaintiff had exposed herself to them on other occasions. For summary judgment purposes, the Court disregards these statements.
As soon as the interviews were completed, Kerr County terminated Marrero on August 1, with an effective date of the discharge being July 29, 2002. On August 2, 2002, another corrections officer (Richard Geils) informed Lieutenant Twiss that when Marrero first started working in Kerr County, Marrero informed him that he left Bexar County Juvenile Detention Center and Harlandale Independent School District because of "sexual harassment."
Analysis
To the extent that Plaintiff is complaining of Kerr County's hiring process, the Fifth Circuit has stated that "deliberate indifference to the known or obvious consequences of a hiring decision can amount to a constitutional violation on the part of the decision maker, but `[a] showing of simple or even heightened negligence will not suffice.' Thus, `deliberate indifference' exists where adequate scrutiny of an applicant's background would lead a reasonable supervisor to conclude that the plainly obvious consequences of the decision to hire would be the deprivation of a third party's constitutional rights. There must be a strong connection between the background of the particular applicant and the specific violation alleged. Accordingly, plaintiffs cannot succeed in defeating summary judgment merely because there was a probability that a poorly-screened officer would violate their protected rights; instead, they must show that the hired officer was highly likely to inflict the particular type of injury suffered by them." Gros v. City of Grand Prairie, 209 F.3d 431, 433-34 (5th Cir. 2000).
As stated above, it is obvious that Kerr County's investigation into Marrero's background was less than complete. However, even if the County had performed a thorough background check there lacks a "strong connection between the background of the particular applicant and the specific violation alleged." Further, there is lacking any summary judgment evidence that Marrero "was highly likely to inflict the particular type of injury suffered by them." As stated by the Fifth Circuit, to "defeat summary judgment, the proffered evidence must be sufficient to create an issue of material fact whether a reasonable officer would conclude that the obvious consequence of hiring [Marrero] would be that he would . . . sexually assault . . . a third person. In other words, the evidence must demonstrate that [the Sheriff] was deliberately indifferent to this obvious consequence." Id. at 434.
As to the rape allegation, this claim is characterized as a "discrete, episodic act." Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997). The Plaintiff "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, Hardeman has met that initial burden.
Accordingly, this Court must determine whether the county may be held accountable for that violation. Pursuant to Moore, this 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." Id.
Kerr County had instituted hiring procedures, including background checks and medical examinations, to minimize the risks of employing renegade jailers. As stated above, Kerr County could have done a better job in its background investigation. Nevertheless, the Sheriff had promulgated a General Order to regulate the management of the jail. In addition to relying upon the fact that Marrero was a recently certified officer and had received training from the Texas Commission on Law Enforcement Officer Standards and Education, the Sheriff testified that he ensures that new guards receive a copy of the policy manual and undergo an informal training program. The Sheriff promulgated General Order #110-2001 which states, in part, that it "is against agency policy for any person to engage in any form of sexual misconduct with an offender, whether consensual or non-consensual on the part of the offender." The General Order goes into graphic detail as to what acts constitute "prohibited conduct." Staff members are also required to report any violations to either the Jail Administrator, the Sheriff or C.I.D. The General Order also indicates that a violation of the civil rights of a person in custody by improper sexual activity constitutes a violation of Texas Penal Code section 39.04.
Deposition of W.R. Hierholzer at pp. 27-28, 64, 70-71.
In addition, Kerr County jail policies dictate that a male guard conducting "checks" on a female inmate is required to call another female officer. If a female officer is not available, the male guard is required to notify the control room so monitoring can take place. When gates to the separation area are opened, the control room is notified. However, when individual separation cell doors are opened, there is no such control room notification.
Deposition of W.R. Hierholzer at pp. 61-62.
Deposition of W.R. Hierholzer at p. 62.
"These actions, viewed individually and taken in whole, reflect substantial attention to the safety of female detainees. This effort indicates not apathy, but concern." Scott v. Moore, 114 F.3d at 55.
In an effort to demonstrate objective deliberate indifference to Plaintiff's constitutional rights, Plaintiff relies quite surprisingly on an affidavit signed by Marrero. Marrero acknowledges having sex with Hardeman (but does not state whether it was consensual or not). Marrero acknowledges that it was the county's policy to "minimize contact between inmates of one sex and guards of another." Marrero also states the following:
In that regard, a female officer would be assigned to the female cells. . . . If a male officer was ever present for security purposes in a female inmate's cell, it was necessary that a female officer also be present. Although this policy was meant to prevent the very incident involving myself and Brandi, it was never really followed by the employees of the KCSD/Jail. Regularly, I had unsupervised access to female inmates. In fact, one of the reasons that this incident probably occurred was because I was allowed such access to Brandi. As to the actual entry of Brandi's cell, that was easy since I had been provided a master key. . . . In the past, the policy of the KCSD had been that Rovers (my position) and the like were required to "check out" such keys when needed. I did not have to check out the A-key and was never supervised regarding its use. . . . At the time I went into Brandi's cell, I was without any assignment from my supervisor and was simply meandering around, looking for something to do. Never during any part of the incident did my supervisor try and contact me — based on past experience, I knew they would not. . . . Prior to the incident, Brandi had been moved to a special 15-minute watch isolation cell near the front of the jail. This was not my assigned area, nor was I requested to check on her. That would have been the job of the female guard assigned to that area. . . . The only reason I was able to remain in Brandi's cell for so long was that I knew, based on past experience, that no one was going to conduct the required checks. In the jail, the mandatory checks were rarely ever conducted appropriately — instead employees would often just put on the logs that they had completed the checks, even though they had not. . . . The incident with Brandi and myself was unfortunate and I regret that it happened. Even though, it was probably inevitable given the fact that the KCSD does not properly enforce their policies preventing or limiting interaction between guards and inmates of different sexes. . . .
The evidence proffered by Plaintiff certainly suggests that the Kerr County jail may need to revise and strengthen its policies and supervise its jail guards more closely to ensure that they follow the policy manual. It also evidences that the county "lacked sufficient prescience to anticipate that a well-trained jailer would, without warning, assault a female detainee." Scott, 114 F.3d at 55. Although Plaintiff has presented evidence that indicates in hindsight that Marrero should have been discharged from his employment within weeks of his hiring, Plaintiff fails to present evidence that the Sheriff knew or should have known that Marrero would engage in the sexual assault of an inmate. Plaintiff fails to present evidence of objective deliberate indifference to Plaintiff's constitutional rights.
Plaintiff relies upon Drake v. City of Haltom City, 106 Fed. Appx. 897 (5th Cir. 2004) for the proposition that a fact issue exists making summary judgment inappropriate. Drake reiterates that "a municipality is subject to § 1983 liability when the municipality's policies regarding employee training and/or supervision were obviously inadequate, and the resulting lack of training and/or supervision was likely to (and actually did) lead to a constitutional violation." However, further review of Drake indicates that it does not support Plaintiff's position here. Drake concluded that the "City cannot be liable for its single decision not to train or to supervise the jailer who perpetrated the sexual assault because Appellants did not allege that there was anything special about that jailer that should have put the City on notice of a particular need to train or to supervise him." In Drake, the city relied upon Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998), for the proposition that sexual assault of detainees is not an obvious consequence of a City's failure to train or to supervise its jailers. The Fifth Circuit noted that Barney, however, was decided on a motion for summary judgment, not a motion to dismiss, and the summary-judgment record in Barney showed that the jailer who committed the assaults had received instruction on "offenders' rights, staff/inmate relations, sexual harassment, and cross-gender search and supervision." The Fifth Circuit further noted that "We are unwilling to say, at this point, that it is not obvious that male jailers who receive no training and who are left virtually unsupervised might abuse female detainees. Thus, we hold that Appellants have stated cognizable claims against the City under § 1983." The facts in this case, as stated above, are quite different. Marrero was given training, was made aware of policies regarding contact with female inmates, and was warned that transgressions of the policies would lead to his discharge. Indeed, Marrero in his affidavit acknowledges that policies existed and he intentionally violated those policies.
Further, to demonstrate a governmental policy or custom under § 1983, a plaintiff must at least show: a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent police misconduct and/or that serious incompetence or misbehavior was general or widespread throughout the police force. Paz v. Weir, 137 F. Supp. 2d 782, 799 (S.D. Tex. 2001). Although Plaintiff has established that jail guards did not properly conduct their checks and master keys were not adequately accounted for, Plaintiff has not brought forth any evidence that such failures had in the past resulted in injuries to former inmates and that the County was aware of such past injuries. "Deliberate indifference is the subjective intent to cause harm, and it cannot be inferred from a jail official's failure to act reasonably. It is not the same as negligence." Hancock v. Payne, 2006 WL 21751 (S.D. Miss. Jan 4, 2006); see also Thomas v. Galveston County, 953 F. Supp. 163, 167 (S.D. Tex. 1997) ("Applying the Supreme Court's subjective `deliberate indifference' test, even assuming that the Plaintiff here could establish that the County had promulgated an `official policy,' nothing in the summary judgment evidence establishes a genuine issue of material fact that the County knew of and disregarded an excessive risk to Thomas's health and safety. Prior to Thomas's complaint in January 1995, no incident of any abusive conduct on the part of Deputy Joseph was ever reported to the jail supervisors. Therefore, the jail supervisors could not have known of the risk to Thomas's health and safety. Furthermore, although two other deputies had heard `rumors' of Joseph's activities, the subjective `deliberate indifference' test requires that the jail officials not only be aware of these facts, but also that they actually draw the inference that a substantial risk of serious harm to Thomas existed. The fact that the jail officials perhaps should have done so on the basis of these rumors is not enough.").
Kerr County has filed an affidavit from Margo Frasier, former Sheriff of Travis County, Texas in support of its motion for summary judgment. Frasier opines that Marrero was not acting within the course and scope of his employment, his actions were not under color of state law, that Marrero's actions violated Kerr County policies and state penal laws, that Marrero did not have a violent history prior to his employ, that there was nothing in Marrero's background to lead a reasonable policymaker to conclude that hiring Marrero would deprive Hardeman of her constitutional rights, that Marrero was adequately trained as a peace officer, and that Marrero was adequately supervised and disciplined. Plaintiff objects to this affidavit as containing hearsay and offering conclusory legal opinions. Those objections are sustained. The Court has not relied upon Frasier's affidavit.
"A sexual assault on an inmate by a guard, regardless of the gender of the guard or of the prisoner, is deeply offensive to human dignity. Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society." Stockman v. Lowndes County, Mississippi, 2000 WL 33907696 (N.D. Miss. Aug 21, 2000). Based on the foregoing principals, however, the court finds that Plaintiff has failed to establish any fact sufficient to support a claim against Kerr County. Accordingly, Kerr County's motion for summary judgment (docket no. 16) is GRANTED.
This Order, however, does not affect the intentional infliction of emotional distress, assault or battery claims against Marrero.