Opinion
CIV. ACTION NO. 3:98-CV-2142-P.
May 19, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are
(1) Defendant Buddy Jones' Motion for Summary Judgment and Brief in Support filed April 20, 1999;
(2) Brief in Support of Plaintiff's Response to Defendant Buddy Jones' Motion for Summary Judgment filed August 9, 1999;
(3) Defendant Buddy Jones' Reply Brief Re: Plaintiff's Response to Defendant Buddy Jones' Motion for Summary Judgment filed September 17, 1999;
(4) Plaintiff Brian Pugh's Objections to Defendant Jones' Purported Summary Judgment Evidence filed August 9, 1999;
(5) Plaintiff Brian Pugh's Motion to Strike Defendant Jones' Purported Summary Judgement Evidence and Brief in Support filed August 9, 1999;
(6) Defendant Jacques Kiere's Motion for Summary Judgment and Brief in Support filed January 19, 1999;
(7) Plaintiff Brian Pugh's Response to Defendant Jacques Kiere's Motion for Summary Judgment and Brief in Support filed August 9, 1999;
(8) Defendant Kiere's Reply to Plaintiff's Response to Kiere's Motion for Summary Judgment filed October 12, 1999;
(9) Plaintiff Brian Pugh's Objections to Defendant Kiere's Purported Summary Judgment Evidence filed August 9, 1999;
(10) Plaintiff Brian Pugh's Motion to Strike Defendant Kiere's Purported Summary Judgment Evidence and Brief in Support of Motion to Strike filed August 9, 1999;
(11) Defendant Sheriff Kiere's Response to Plaintiff Brian Pugh's 8/9/99 Objections to Defendant Kiere's Summary Judgment Evidence filed October 12, 1999; and
(12) Defendant Sheriff Kiere's Response to Plaintiff's Motion to Strike Defendant Kiere's Summary Judgment Evidence filed October 12, 1999.
After reviewing all of the motions, briefs, supporting appendices, and the relevant law, the
Court hereby DENIES Defendant Jones's Motion for Summary Judgment and DENIES Defendant Kiere's Motion for Summary Judgment.
SUMMARY JUDGMENT STANDARD
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and 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 (1986). All evidence and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold. Inc., 369 U.S. 654, 655 (1962). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a jury might return a verdict in his favor. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256-57 (1986).
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment.Anderson, 477 U.S. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex Corp., 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of the submitted documents to which the nonmoving party directs the Court. Id.
EVIDENTIARY ISSUES
Plaintiff makes several objections to Defendant Jones' affidavit that he gave in support of his summary judgment motion.See Affidavit of Marlin L "Buddy" Jones, Exh. 1 0, App. .to Mot for Sum. J. of Def. Buddy Jones ("Jones Affidavit"). Plaintiff objects to Jones' testimony that in his experience, ninety percent of notes written by inmates about violence between other inmates were not true. He also objects to Jones' testimony that jails are most safe during the day, with little violence occurring during the day time. Jones further testified that if violence did occur during the day, it was quickly detected and responded to by officers. Taken as the Defendant's personal beliefs, this testimony goes to Jones' understanding of the situation and his alleged deliberate indifference to the assault on Pugh. Therefore, the Court overrules Plaintiff's objections to Jones' evidence numbered 6-8 and will consider this testimony as conveying Jones' personal experience during his time as jail administrator.
Pugh also objects to Jones' affidavit testimony regarding Josh Diem's inmate request form. The statement appears to be an error naming Pugh instead of Diem as author of the note and is inconsistent with Jones' deposition testimony. Ordinarily, courts will not allow a witness to create an issue of fact through conflicting deposition and affidavit testimony given without any explanation. See Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806 (1999). The alleged conflict or error here seems to be an innocent one, as Jones explained the discrepancy as a typographical error. Moreover, the discrepancy, even if purposeful, does not create a genuine issue of fact. Courts must consider all appropriate evidence presented for summary judgment, including testimony containing slight conflicts. See Dibidale of Louisiana Inc. v. America Bank Trust Co., 916 F.2d 300, 307 (5th Cir. 1990). Accordingly, the Court overrules Pugh's objection number 9.
See Jones Deposition at 100, App. to Jones' Reply Br. filed September 17, 1999 (testifying to the typographical error and stating his belief that Diem wrote the note about Pugh)
Pugh makes several objections to the testimony of both Jones and Kiere as impermissible legal conclusions. The Court overrules objections to Jones' evidence numbered 10-11 as the identified statements do not make legal conclusions; rather, the statements go to Jones' knowledge and state of mind. Likewise, the Court overrules Plaintiff's objections to Kiere's evidence numbered 42-45. Plaintiff complains of these statements as legal conclusions about deliberate indifference. The Court does not agree. Rather, these statements merely explain the actions that he argues negates a finding of deliberate indifference.
In objection numbered 12, Pugh objects to Jones' assertion that at all relevant times, "I was performing discretionary duties in good faith within the course and scope of my duties as Captain in the Rockwall County Sheriff's Department. I did not violate statutory or constitutional rights of Mr. Pugh of which a reasonably [sic] law enforcement officer would have known," as a legal conclusion about which Jones is not competent to testify. In objections numbered 46-47, he makes the same objection to Kiere's assertion that:
"I was a governmental official performing discretionary functions, acting in good faith, acting under color of state law and in my official capacity as the Sheriff for the County or Rockwall and within the scope of my discretionary authority. . . . [I] did not violate any clearly established law. My actions and conduct were consistent with state and federal law, the County of Rockwall Sheriff's Department regulations, and my training."
Federal Rule of Evidence 704(a) states, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The rule abandons the ancient practice against testimony regarding ultimate facts, so long as such testimony is helpful to the jury. See Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992). The Federal Rule does not, however, open the door to all opinions. See Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). Specifically, the rule does not permit a witness to give legal conclusions, but it does allow the witness to make factual observations. Id at 240. In reviewing the testimony in question, the statements regarding whether or not the defendants violated any law of which a reasonable official would have been aware are impermissible legal conclusions. As such, those portions of the affidavits must be disregarded
The Owen Court gave an example of the distinction between permissible factual testimony and impermissible legal responses in citing to the Advisory Committee Notes of Rule 704. The question, "Did T have capacity to make a will?" should be excluded. The question, "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?" is permissible. The Fifth Circuit found, "[t]he first question is phrased in such broad terms that it could as readily elicit a legal as well as a fact based response. A direct response, whether it be negative or affirmative, would supply the jury with no information other than the expert's view of how its verdict should read." Owen, 698 F.2d at 240.
Plaintiff's Motion to Strike Defendant Jones' Purported Summary Judgment Evidence is GRANTED IN LIMITED PART in accordance with the Court's rulings to the objections.
Plaintiff makes numerous objections to Defendant Kiere's summary judgment evidence, all of which relate to an affidavit submitted by Kiere. See Affidavit of Jacques Kiere, Exh. 1, App. to Mot. for Sum. J. of Def. Jacques Kiere ("Kiere Affidavit"). This twenty-two page affidavit summarizes in narrative form a substantial portion of the evidence submitted in support of the summary judgment motion, including evidence about Pugh's arrest and the credibility of Pugh's assault allegations. The Court finds much of his testimony to contain information beyond the personal knowledge of Sheriff Kiere. While he may generally testify to information he obtained from reports in his office,see Washinton Central Railroad Co. Inc. v. National Mediation Board, 830 F. Supp. 1343, 1353 (E.D. Wash. 1993), Sheriff Kiere may not rely solely upon those reports to testify about specific actions of jail officers who allegedly entered Pugh's cell or about particular opportunities when Pugh could have called for help. Kiere has no personal knowledge of those events; rather, only those officers who allegedly entered the cells or direct witnesses can testify as to their actions and what they witnessed of Pugh's specific situation. Sheriff Kiere may use the reports and records of his office to testify about particular conditions and policies in place at the jail, as well as to the lack of reports of any complaints or requests for help from Pugh Defendant Kiere argues that much of the testimony has already been conceded by Plaintiff or refers to documents attached to the affidavit. However, this does not render Sheriff Kiere competent to testify to all of this information. As such, the Court sustains Plaintiff's objections to Kiere's evidence numbered 17, 19-25, 27-30, 32, 34, and 37-38. In light of the same considerations, the Court overrules Plaintiff's objections to Kiere's evidence numbered 5-16, 18, 26, 31, 33, and 35-36, as these statements fall within Sheriff Kiere's personal knowledge of policies and conditions at the jail or refers to the records of specific inmates.
The Court makes a sua sponte ruling that all evidence regarding Pugh's guilt or innocence on the charges of banning a child, the charge which resulted in his stay at the Rockwall County Jail, are inadmissible as irrelevant. Pugh's guilt or innocence on those charges bears absolutely no relation to the constitutionality of the conditions, policies, and procedures at the jail or to the liability of the defendants for their alleged failure to protect Pugh in violation of the Fourteenth Amendment.
In objections to Kiere's evidence numbered 39-40, Plaintiff complains of Kiere's testimony regarding the distinctions between a planned attack by conspirators in jail as opposed to a more typical scenario of inmate-on-inmate violence due to a specific and immediate aggravating event. Plaintiff objects that this testimony is beyond Kiere's personal knowledge and based upon speculation as Kiere is not an expert on jail operations. As a sheriff for ten years prior to this attack, the Court finds Kiere qualified to testify to the operations of the jail with regard to typical episodes of inmate violence. Therefore, the Court overrules these objections.
In objection to Kiere's evidence numbered 41, Plaintiff complains of Kiere's testimony that explains the meaning of the June 3, 1998 letter from Kiere to the county commissioners. As previously stated, it is a well settled principle of law that this Court will not allow a party to create an issue of fact to defeat summary judgment using an affidavit that impeaches, without explanation, sworn testimony. S.W.S. Erectors Inc. v. Infax, Inc, 72 F.3d 489, 495 (5th Cir 1996). Sheriff Kiere explained the differences between the affidavit and the deposition testimony. In his deposition, he stated that later investigation uncovered evidence leading him to believe the attack on Pugh did not result from overcrowding. The investigation also caused Kiere to doubt Pugh's account of the length of the attack. In sum, his deposition testimony does not constitute inexplicably inconsistent testimony; rather, it explains the hastiness of his initial letter to the board as well as his reason for later doubting his initial conclusions about the attack. Therefore, the Court overrules Pugh's objection numbered 41.
Defendant Jones makes objections to Plaintiff's attachment of the voluntary statement and affidavit of John Sheehan, a later cell mate of Gaspard and Valdez, in which Sheehan alleges that they told him in great detail about their assault on Pugh. Exh. 8, Pugh/K Appendix. The Court sustains this objection in accordance with its ruling in the Memorandum Opinion and Order of March 10, 2000.
The Memorandum Opinion and Order of March 10, 2000, also ruled on Defendant Kiere's many objections to Plaintiff's summaiy judgment evidence. The Court refers parties to that order for the specific rulings on those objections.
Defendant Jones objects to Ernest C. Weber, whose affidavit testimony is attached as Exhibit 34 to the Pugh/K Appendix, as unqualified to testify as an expert on Texas prison facilities. Weber has received an extensive amount of training and education in the field of prison management and operations. Although his training is not specific to Texas, the affidavit provides sufficient information for its conclusions. Weber may testify to the reasonableness of the actions at the jail. See Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1520 (10th Cir. 1996)("As long as an expert stays within the reasonable confines of his [or her] subject area, our case law establishes a lack of specialization does not affect the admissibility of [the expert] opinion but only its weight." (internal citations omitted)). As an expert, most of the Defendants' objections go to the weight of Weber's testimony rather than to its admissibility. The Court denies in relevant part this objection in accordance with its ruling in the Memorandum Opinion and Order of March 10, 2000.
The Court rules that all other evidence objected to and not expressly ruled on above is admissible and relevant to the Defendants' summary judgment motions. Therefore, all of the Defendants' other objections are hereby overruled.
FACTS
Considering the posture of this motion, the Court's rulings on the evidentiary objections, and taking the facts in the light most favorable to the Plaintiff, the Court finds the relevant facts as follow:
On April 28, 1998, the Plaintiff was arrested on charges of injury to a child and placed in the Rockwall County Jail. Kiere Aff. at 2, Exh. 1, Kiere App. At all relevant times, Defendant Jacques Kiere served as Sheriff of the Rockwall County Jail and Defendant Buddy Jones served as Captain and Jail Administrator. Pl's Complaint ¶ 8; Jones Aff. at 1, Exh. 1, Jones App. On April 29, 1998, Plaintiff was apparently assaulted by other inmates, treated for his injuries, and moved to another cell. Id. at 5. On April 30, 1998, Pugh was placed in cell number two, which was designated to hold two inmates. Id The cell contains two inner cells which locked from the inside. The cell does not have any windows that look into the jail other than a small port hole in the main steel door through which the jailers deliver meals. See Reagan Grand Jury Testimony (June 17, 1998) at 16, Exh. 6, Pugh/KJ App. By May 31, 1998, five inmates had been placed in the two-man cell. Jones Depo. at 41, Exh, 24, Pugh/KJ App. (hereinafter "Jones Deposition") On the night of May 31, 1998, two of the inmates in Pugh's cell began physically and sexually assaulting Pugh. Statement of Brian Pugh dated June 2, 1999, Kiere App. at 70-74. The assault continued until the morning of June 2, 1998 when Pugh was able to draw the attention of Jailer Lewellyn. Incident Report dated June 2, 1998, Exh.10, Pugh/KJ App. at 76.
The "Kiere Appendix" refers to the Appendix to Brief in Support of Motion for Summary Judgment of Defendant Jacques Kiere filed January 19, 1999.
The "Pugh/KJ Appendix" refers to the Appendix to Briefs in Support of Plaintiff Brian Pugh's Responses to Defendant Jacques Kiere's Motions to Dismiss and for Summary Judgment filed August 9, 1999.
At the time of the assault, Rockwall County Jail was in violation of the minimum standards set forth by the Texas Commission on Jail Standards ("CJS"). See Kiere Depo. at 50, 53-55, Exh 8, Pugh/L App. (hereinafter "Kiere Deposition"); See also Exh. 16, 17, 19, 21, Pugh/KJ App. .Specifically, the Plaintiff alleges that the Rockwall County Jail was overcrowded, understaffed, and in poor repair. Pugh alleges that these deficiencies provided the means by which a conspiracy was formed to assault Pugh and contributed to the duration and severity of the attack.
The "Pugh/L Appendix" refers to the Appendix to Briefs in Support of Plaintiff Brian Pugh's Responses to Defendant William Lofland's Motions to Dismiss and for Summary Judgment filed August 10, 1999.
Gaspard and Valdez allegedly attacked Pugh after learning that police arrested him for abusing a child. They allegedly learned this information through a conversation with Cindy Jo Richardson, the mother of the abused child, over the malfunctioning intercom system that allowed communication between male and female inmates. Kiere Aff. at 22-23, Jones App. During the assault, Pugh alleges that he could not seek refuge in the inner cell because the lock on that door was broken. Pl's Resp. Br. at 2. Also, Pugh claims that the assault on him went unnoticed because no jailer observed him on a face to face basis for approximately thirty-five hours. Pl's Resp. Br. at 4-5. See also, Jones Depo. at 138, Exh. 24, Pugh/KJ App. (denying knowledge of any jailer who reportedly saw Pugh between the hours of 10 p.m. on May 1st and 9:30 am. on June 2nd). At one point during the assault, Pugh attempted to call for help by pressing the emergency call button. Statement of Brian Pugh dated June 2, 1999, Kiere App. .at 71 However, Gaspard and Valdez pushed him away from the button and threatened to kill him if he said anything. Id. Any time jailers entered cell number two, either Gaspard or Valdez kept Pugh naked and trapped in one of the inner cells so that "no one ever saw him." Reagan Grand Jury Testimony (June 17, 1998) at 16, Exh. 6, Pugh/KJ App.
In the early morning of June 2, 1998, a cell mate of Pugh's, Josh Diem, sent out an inmate request form which advised jailers that Pugh was being sexually and physically assaulted by Gaspard and Valdez. Pl's Resp. Br. at 4; Note from Josh Diem dated June 2, 1998, Exh. 1.10, Kiere App. at 60-61. Jailer Ferguson found the note at 5:30 a.m. and passed it on to his superior, Corporal Gentry. Eventually, at approximately 6:30 am., Gentry gave the note to Defendant Jones. See Voluntary Statement of Gentry, Exh. 13, Pugh/KJ App. at 85. After reading the note, Jones went to a meeting without sending anyone to inquire about Pugh's well-being. Jones Aff. at 2, Exh. 1, Jones App.
The Jones Appendix refers to the Appendix Attached to Defendant Buddy Jones' Motion for Summary Judgment and Brief in Support filed April 20, 1999.
At approximately 9:30 a.m., while his cell mates slept, Pugh attracted the attention of Officer Lewellyn. When she approached the cell, she saw the bruising and swelling on his face and immediately called for help to remove Pugh from the cell. See Voluntary Statement of Lewellyn, Exh. 15, Pugh/KJ App. at 90. Pugh received prompt medical attention, and the Jail transported him to the Lake Pointe Medical Center where doctors treated him for a broken nose, five fractured ribs, and severe bruising around the face, chest, and sides. See Emergency Dep't Records, Exh. 1, Pugh/KJ App. at 21-25; Dr. Robert D. Sparks Aff., Jones App. at 346-47.
Pugh now brings suit against Rockwall County as well as Sheriff Kiere and Captain Jones in their official and individual capacity under 42 U.S.C. § 1983, alleging that they violated his constitutional right to be free from violence while in jail.
On March 10, 2000, this Court granted summary judgment based on qualified immunity for charges brought against County Judge William Lofland.
QUALIFIED IMMUNINTY
Defendants Jones and Kiere seek summary judgment on the basis of qualified immunity. As public officials, Jones and Kiere are entitled to qualified immunity from suit under § 1983 unless the Plaintiff demonstrates that they violated clearly established constitutional law. Schultea v. Wood 27 F.3d 1112, 1115 (5th Cir. 1994). In assessing a qualified immunity defense, the court undertakes a bifurcated analysis. Initially, the court must determine whether the plaintiff alleges the violation of a clearly established constitutional right. Then, the court must analyze the reasonableness of defendants' conduct because "even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable." Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).A. Allegation of a Constitutional Right
The initial step in this analysis requires the Court to determine whether Pugh has sufficiently alleged a constitutional violation. See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (holding that the plaintiff must assert a constitutional right before the court determines whether the right asserted is `clearly established'); Samaad v. City of Dallas, 940 F.2d 925, 940 (5th Cir. 1991)("In Siegert, the Court holds that a court addressing a claim of qualified immunity should first consider `whether the plaintiff asserted a violation of a constitutional right at all' before reaching the possibly unnecessary question of whether the plaintiff asserted a violation of a `clearly established' right."). Pugh alleges that Defendants Jones and Kiere violated his right to be free from assault by other inmates by acting with deliberate indifference to the substantial risk of serious harm posed to Pugh as a pre-trial detainee in the Rockwall County Jail.
Pugh also alleges that both Jones and Kiere failed to train the Rockwall County jailers on proper classification methods for new inmates and proper techniques for addressing inmate violence. To a large extent, these claims are subsumed by and hinge upon the same facts and findings as the predominate failure to protect claim. Therefore, the analysis of these claims will be limited.
Jail "officials have a [constitutional] duty . . . to protect inmates from violence at the hands of other prisoners." Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995); see also Johnston v. Lucas, 786 F.2d 1254, 1258 (5th Cir. 1986). To establish a failure to protect claim under section 1983, Pugh must show that "he is incarcerated under conditions posing a substantial risk of serious harm and that prison officials were deliberately indifferent to his need for protection" Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). An official is not subject to section 1983 liability for acts or omissions of his subordinates on the basis of respondeat superior. Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992). A prison official may be found liable in his individual capacity for denying an inmate humane conditions of confinement only if the plaintiff can show that the official was aware of facts from which the inference could be drawn that a substantial risk of harm existed and that he drew the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Downey v. Denton County, 119 F.3d 381, 385 (5th Cir. I997). In other words, a jail official may be held liable for episodic acts or omissions only when that official had subjective knowledge of a substantial risk of harm to the pre-trial detainee, but responded with deliberate indifference to that risk. Hare, 74 F.3d at 650; Payne v. Collins, 986 F. Supp. 1036, 1952 (ED. Tex. 1997).
Pre-trial detainees and convicted prisoners look to different constitutional provisions for their respective rights to basic needs such as medical care and safety. The constitutional rights of convicted state prisoners are based on the Eighth Amendment's prohibition on cruel and unusual punishment while the constitutional rights of pre-trial detainees flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment, Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). A pre-trial detainee's due process rights are at least as great as the Eighth Amendment protections available to a convicted prisoner. Id.
The plaintiff may prove this condition through circumstantial evidence. In fact. a factfinder may conclude that a jail official knew of a substantial risk from the fact that the risk was obvious. Payne v. Collins, 986 F. Supp. 1036, 1053 (E.D. Tex. 1997) (citing Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir 1996)) "For example, if [a] . . . plaintiff presents evidence showing that a substantial risk of inmate attacks was `longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus `must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.'" Farmer v. Brennan, 511 U.S. 825, 842-43 (1994).
I. Substantial Risk of Harm
The Court applies an objective standard in determining whether the plaintiff has met his burden in proving the first element of his failure to protect claim. Payne, 986 F. Supp. at 1052. In meeting his burden, Pugh must demonstrate the presence of conditions at the Rockwall County Jail that created a substantial risk of serious harm.
Plaintiff presented evidence of the continuous overcrowding of the jail, the disrepair of the jail, and the statements from Kiere indicating an increase in violence due to the overcrowding and under-staffing at the Rockwall County Jail. Overcrowding alone does not rise to the level of a constitutional violation.See Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (holding that double ceiling due to overcrowding did not violate the Constitution). However, if the overcrowding leads to deprivations of essential food, medical care, or sanitation or increased violence among inmates or creates other conditions intolerable for prison confinement, then the conditions of confinement due to overcrowding may violate the Constitution. Id.
Plaintiff presented evidence that the understaffing resulted in the jail officers' inability to perform fundamental functions. Plaintiff points to the jailers failure to perform daily physical headcounts or hourly face-to-face checks, or to observe the inmates at food and medication distributions. The failure of the staff to adequately observe and monitor the behavior of the inmates combined with the overcrowding in contributing to the tension and a heightened risk of harm to the inmates from assaults by other inmates. Pl's Resp. Br. at 7 (citing Letter from Kiere to Commissioner's Court (June 3, 1998) Exh. 16, Pugh/KJ App. at 92 (stating attack caused by overcrowding and lack of supervision); Jones Depo, Pugh/KJ App. at 141 (same)). Poor maintenance of the facility made tension from the overcrowding more dangerous The Plaintiff's cell was built with two inner cells that locked from the inside so that each inmate could withdraw into the cell for protection. Plaintiff contends that the locks on the internal cell doors were broken. Moreover, the lighting in the cell was poor, making it harder for jailers to see all of the cell while standing at the door. Ferguson Depo., Exh. 31, Pugh/KJ App. at 363, Plaintiff argues that the broken locks, poor lighting, overcrowding, and understaffing combined to create a substantial risk of serious harm from inmate-on-inmate violence.
The Court finds that Plaintiff satisfied his summary judgment burden in adequately alleging that the conditions at the Jail created a substantial risk of serious harm. Jailers are not the guarantors of inmates' safety, and courts have recognized the inherent dangers that thrive within the jail systems. Farmer, 511 U.S. at 833 (noting a proclivity amongst incarcerated persons towards violent and anti-social behavior). However, "having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course." Id. Jailers should have a method in place for deterring and discovering violence as quickly as possible so that the inmate can receive protection and any necessary medical care.
The overcrowding and understaffing at the jail prevented jail personnel from being able to abide by their regular policy of viewing inmates face-to-face on a daily, if not hourly, basis. The supervision and monitoring of the inmates at Rockwall County Jail deteriorated to a point where Defendant Jones admits his inability to identify any jail personnel who actually observed Pugh, a maximum security inmate in an overcrowded cell, for a total of thirty-five hours. Jones Depo., Pugh/KJ App. at 138. Moreover, the broken locks prevented Pugh from escaping his alleged attackers, and the poor lighting aided the assailants in hiding their victim. Although there are disputes as to how often inmates were being observed and whether or not the locks in Pugh's cell were broken, the evidence before the Court, if taken as true, creates a question of fact as to whether the conditions of confinement created a substantial risk of serious harm. Pugh must now demonstrate that Jones and Kiere knew of this risk of harm but were deliberately indifferent to that risk.
2. Deliberate Indifference
The Court applies a subjective standard in determining whether a plaintiff has proven that a jail official acted with deliberate indifference. Payne, 986 F. Supp. at 1052 (citing Farmer v. Brennan, 511 U.S. 825, 840 (1994)). To prove this element, the plaintiff must demonstrate more than a lack of due care for a prisoner's interests or safety. A more rigorous showing must be made that the defendant knew of and disregarded the substantial risk by failing to take reasonable measures to abate it. Farmer, 511 U.S at 843. Pugh may meet his burden by demonstrating that Jones and/or Kiere "knew of ways to reduce the harm but knowingly declined to act, or knew of ways to reduce the harm but recklessly declined to act." Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1995); Payne, 986 F. Supp. at 1053 (quoting Hale) However, a jail official will not ordinarily be held liable for attempting to remedy a constitutional deprivation even if that attempt fails to avoid the harm. LaMarca, 995 F.2d at 1536 ("if an official attempts to remedy a constitutionally deficient prison condition, but fails in that endeavor, he cannot be deliberately indifferent unless he knows of, but disregards, an appropriate and sufficient alternative").
a. Defendant Jones
As jail administrator, Captain Jones shared responsibility with Sheriff Kiere for operating the Rockwall County Jail. Prior to the assault on Pugh, the CJS put Jones on notice of the overcrowding at the jail. In fact, Jones knew that due to its various deficiencies, the CJS denied certification of the jail from January 1996 to July 1998. Jones also knew about the disrepair of the jail. He knew that many of the inner-cell door locks were broken, including at least one of the inner-cell door locks for cell number two. Moreover, Jailer Ferguson testified about Jones' awareness of the inadequate lighting throughout the jail, and specifically in cell number two.
Jones Deposition at 11-14 (stating that the jail had been overcrowded for months in violation of the CJS standards).
Jones Deposition at 18 (stating that at least one of the locks in cells number two did not work).
Ferguson Deposition at 41, Exh. 31, Pugh/KJ App. (hereinafter "Ferguson Deposition") (testifying to the lighting being so inadequate that at night the guards could not see into the cells very well when performing the hourly checks from outside the cell).
With regard to the risks faced by Pugh from the overcrowding and disrepair of the jail, Pugh alleges that Jones adopted policies and practices which demonstrated a deliberate indifference towards the prisoners' safety needs. Viewing the evidence in the light most favorable to the Plaintiff, Jones knew that face-to-face visuals were not being performed every hour. Sheriff Kiere had implemented a system for documenting the frequency of the visual checks. Every hour, when the jailers performed the checks, they were required to sign a hall log and mark the time. Jones knew the jailers back-timed the log when they were not in fact performing the required visual checks. Jones also knew that the jailers failed to perform a daily, thorough head count of the inmates as required by the CJS. A further lapse in inmate observation occurred during the distribution of medications and meals because the jailers, as Jones was aware, did not necessarily observe the inmates at those times. The insufficient number of jailers also resulted in less recreation time for the inmates than the minimum set forth by the CJS. Finally, Pugh alleges that Jones knew the jail lacked any place to separate an inmate at risk for assault.
Jones Deposition at 13-14.
Jones Deposition at 12-13.
Jones Deposition at 15-16 (testifying that inmates could refuse their medications by simply not coming forward to receive their medication and that jailers were not required to make sure inmates received their meals when distributing them to the cells).
Jones Deposition at 17.
Jones Deposition at 18.
Pugh couples Jones's knowledge of the jail's maintenance and supervision deficiencies with his knowledge of Pugh's particular situation to demonstrate his subjective knowledge of the substantial risk of violence to Pugh. Specifically, Jones knew that Pugh had been moved to two cell after a previous attack by his original cellmates and that by the time of the attack, five inmates resided in the two-man cell. As a final indication of Jones's deliberate indifference to Pugh's risk of harm, Pugh points to the inmate request form written by Josh Diem. In that note, Diem indicated that Pugh had been "beat up and sodimized [sic] every day and night, abused physically. verbally, mentally, he needs to he moved or move the other inmates named Mark Cooper Gaspard, Vasquez or he could be hurt very seriously." Testimony supports the supposition that Jones received the note immediately upon arriving at the jail at approximately 6:30 on the morning of June 2, 1998. Jones states in his affidavit that he believed the note to be false, and that he did not take any action to discover whether Pugh was actually in danger
Jones Deposition at 41.
Note of Josh Diem, Exh. 1.10, Kiere App. at 60-61.
Voluntary Statement of Corporal J.W Gentry (July 10, 1998), Exh 13 Pugh/KJ Appendix (testifying to giving the note to Jones when he first arrived at approximately 6:30 in the morning).
Jones Affidavit at 2, Exh. 1, Jones App. (stating that after receiving the note from Gentry, he then "put the note down and went to a casual meeting of the Department heads").
Jones does not address this portion of the qualified immunity analysis other than to lay out the relevant law and then state, "Buddy Jones has demonstrated by his affidavit and other evidence: (1) that he was not personally involved in any alleged deprivation of Plaintiff's rights; and (2) that he was not deliberately indifferent to Plaintiff's rights."
Defendant Buddy Jones' Mot. Sum. J. at 24; see also. Defendant Buddy Jones' Reply Br. at 5 ("For purposes of this Reply, Defendant addresses the second prong of the Qualified Immunity inquiry, to wit, whether, under the same prevailing circumstances, a similarly-situated person could have considered Captain Jones' actions to be lawful.").
Considering all of the evidence presented by the parties, the Court finds a question of fact exists as to whether Jones was deliberately indifferent to the substantial risk of harm to Pugh. Jones knew that many of the inmates at the jail, including Pugh, had received the maximum security rating, meaning that they are the most dangerous classification of inmates. Yet Jones knew that these maximum security inmates were not being regularly monitored or even checked. In fact, Jones knew that the jailers were falsifying the hall log, which may cause outside observers, such as the CJS, to believe the inmates were being observed more regularly. Moreover, Jones knew about the broken locks on the inner-cell doors, the poor lighting, and the overcrowded conditions in cell number two. Essentially, he knew that the most dangerous classification of inmates were being confined in very close quarters with virtually no means of defending themselves and with a minimal amount of observation by the jail guards. Given the situation, Pugh has presented evidence creating a question of fact as to whether Jones subjectively knew of the substantial risk of harm to Pugh.
Not only has Pugh submitted sufficient evidence to demonstrate Jones's subjective knowledge of the risk to Pugh, but he has also met his summary judgment burden of demonstrating Jones's deliberate indifference to that risk. Jones did not identify any actions taken by him to alleviate any of the risks at the jail. He gave no evidence of disciplining jailers who falsified records or failed to fulfill their job duties by performing the required head counts and visual face-to-face checks. Jones essentially condoned the jailers' actions of back-timing the log, which demonstrates his willingness to overlook the safety needs of the inmates and infractions by his jailers. His willingness to do this was directly demonstrated by his reaction to Diem's note. When Jones received the note from Diem warning of the assault against Pugh, Jones did not even bother to have an officer go to the cell and take a look at the inmates. Jones seems to have taken the approach denounced by the Court in Farmer of putting these men together and simply letting nature take its course. Under the circumstances, the Court finds that Pugh has met his summary judgment burden of demonstrating Jones's deliberate indifference to a substantial risk of harm to Pugh.
Pugh also seeks liability on the basis of Jones's failure to supervise, train, and monitor his jailers to ensure that they properly carried out his established policies and procedures. Under Section 1983, supervisory officials are not liable for the actions of subordinates on theories of respondeat superior or vicarious liability. Williams v. Luna, 909 F.2d 121 (5th Cir. 1990). Jones argues for qualified immunity because he did not personally participate in the assault on Pugh. This alone does not relieve him of liability. Supervisors may face liability where their inaction, including failing to train or supervise their subordinates, amounts to gross negligence or deliberate indifference which is the proximate cause of a constitutional violation. See Cantu v. Rocha, 77 F.3d 795, 807 (5th Cir. 1996); see also Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir 1987) (internal citations omitted) (stating that supervisory liability exists without overt personal participation in the act if the supervisory official implements a policy so deficient that the policy "itself is a repudiation of constitutional rights" and is "the moving force of the constitutional violation"). For the same reasons stated above, Pugh met his burden of establishing Jones's deliberate indifference in failing to supervise and monitor the jailers at Rockwall County Jail.
Def's Mot. for Sum. J. Br. at 14-15
In addition to proving that there existed a substantial risk of harm and that the defendant was deliberately indifferent to that risk by disregarding it, the plaintiff must also prove causation in a failure to protect, supervise or train case. LaMarca v. Turner, 995 F.2d 1526, 1538-39 (11th Cir. 1993); Payne, 986 F. Supp. at 1054. The causation requirement forecloses the plaintiff from prevailing on a theory of respondeat superior Payne, 986 F. Supp at 1054 (citing Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir 1997)). The Sixth Circuit addressed causation under section 1983 arising from allegations of systematic deficiencies in a prison's protection of inmates similar to those in the present case. In Doe v. Sullivan County, 956 F.2d 545 (6th Cir. 1992), the plaintiff failed to prove that the constitutional deficiency caused his injuries even though he demonstrated that (1) overcrowding at the jail necessitated more staff to decrease the risk of violence; (2) the cells were poorly lit, (3) more jailers were needed, (4) mental and physical evaluations were not performed; and (5) security checks often were not performed every half-hour as required by state regulations. See supra, at 550. The plaintiff argued that if those conditions had not been perpetuated, then he would not have been assaulted. The Court of Appeals ruled this evidence insufficient to establish the requisite causation, stating, "[w]hile we recognize that proving causality in circumstances like these may prove difficult, we are nonetheless convinced that more is required than plaintiff's naked assertion that the assault would not have occurred but for the offensive conditions." Id.
To hold a supervisory official liable, the plaintiff must show: (1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference. Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998). The Court has already found a failure to supervise and deliberate indifference; therefore, the only issue left for determination is causation.
The Court distinguishes Pugh's evidence from that presented inDoe v. Sullivan County. First, the Defendants have admitted that Cindy Jo Richardson and the assailants conspired over the intercom system to commit this assault. Using the dysfunctional intercom system, Cindy Jo Richardson told Vasquez and Gaspard about Pugh's arrest for assaulting her child, thus providing the motive for the attack. Second, once Jones received notification of the assault, his failure to take any action resulted in further harm to Pugh. Third, Jones condoned the jailers' failure to perform their duties, including the practice of back-timing the hourly visual check log, thus prolonging the duration of the attack on Pugh. Based upon all of the facts before the Court, Pugh has sufficiently alleged an affirmative causal link between Jones's actions and his injuries to overcome summary judgment on that basis.
Diem Affidavit, Exh. 9, Pugh/KJ App. at 72 (stating that after he sent out the note in the early hours of June 2, "Gaspard and Valdez beat Pugh with the receiver of the telephone. This occurred for some time and repeatedly after [he] put the note out and before the jailer came in to get Pugh. In addition, after the note was put out, they (Valdez and Gaspard) made Pugh stand in a corner naked. The (sic) would then beat him with their sandals.").
b. Defendant Kiere
Plaintiff alleges that Kiere also knew of the substantial risk of harm to Pugh yet did nothing to alleviate that risk Specifically, Pugh alleges that Kiere knew that the jailers failed to perform the required visual checks and that they regularly backdated the log book for the hourly face-to-face checks. He also knew that the jailers were not performing daily physical head counts, and that the jail was overcrowded and understaffed. As for the maintenance problems at the jail, the Sheriff knew about the broken locks on the inner cell doors, about the ability of male and female inmates to communicate with each other over the intercom system, and about poor lighting throughout the jail Pugh also alleges that Kiere understood that the jailers did not necessarily see each of the inmates when distributing their medication and meals. Pugh further alleges that Kiere knew the jail lacked any place to separate an inmate who was at risk of assault by other inmates.
Kiere Deposition at 129 (stating that Kiere knew that jailers did not enter cells to perform the face-to-face checks); Jones Deposition at 92 (stating that Kiere knew how the jailers back-timed the log).
Jones Deposition at 13 (stating that Kiere knew daily head counts were not being performed).
Kiere Deposition at 51 (admitting to overcrowding and understaffing in the jail from January 1996 through July 1998).
Kiere Deposition at 88-89 (identifying budget request to commissioners court wherein he requested funds for maintenance and repair of the cell door locks but denying specific knowledge of the broken individual cell locks in 2 cell); Jones Deposition at 18 (testifying that Kiere knew jailers used parts from the inner cell locks to repair outer cells locks).
Kiere Deposition at 89 (stating that he knew the intercom system allowed male and female inmates to communicate with each other).
Gentry Deposition at 17, Exh. 10, Pugh/KJ App. (hereinafter "Gentry Deposition") ("I couldn't swear to cell number two, but I'm sure [Kiere and Jones] knew that the lighting was inadequate throughout the jail.").
Kiere Deposition at 133 (acknowledging that inmates could refuse their medication by simply not coming out of their cell); Jones Deposition at 16 (testifying that Kiere knew that some jailers did not see the individual inmates while distributing meals).
Jones Deposition at 18 (stating that the Sheriff knew about the inability to separate inmates who were at a high risk of assault).
In order to establish Kiere's subjective knowledge of the risks to Pugh, Pugh couples Kiere's knowledge about the jail deficiencies with his knowledge of Pugh's own specific situation. Kiere knew that Pugh had been charged with injury to a child and that the mother of the child was also being held at the Rockwall County Jail. Due to the nature of the offense, Kiere was aware of the higher risk of an assault on Pugh from other inmates. In light of all of this information about the deficiencies in monitoring inmates, the poor maintenance of the jail, and the special circumstances surrounding his own incarceration, Pugh argues Kiere subjectively knew of the substantial risk of serious harm to Plaintiff.
Kiere Affidavit at p. 3.
Kiere Deposition at 37 -38 (acknowledging a history in jails where an inmate accused of child abuse may be more of a target for assault than others).
While Defendant Kiere admits knowing about areas of the jail that needed improvement, he denies having any knowledge of a substantial risk of harm faced by inmates at the county jail. Kiere's own actions and statements, however, discredit his denial. He reported to the county commissioners the need for additional jail staff and warned that "mandated operational activities which are vital to the operation of the jail are not being performed, or are being performed inadequately." Kiere testified that "a jail is always a dangerous place," but agreed the jail was more dangerous than it should have been because of the conditions and the overcrowding. Moreover, his initial reaction to the attack on Pugh, regardless of how his opinion later changed, was to attribute it to "tension arising from "overcrowding, lack of separation cells for dangerous inmates, and a less than adequate level of staffing." He also stated that some of the assaults at the jail "resulted from the fact that inmates were not properly observed by the jail staff." The acknowledged increased danger along with the known maintenance defects in the jail create a set of facts, known to the Sheriff, from which an inference of a substantial risk of harm to Pugh and other inmates like him could have been drawn. Plaintiff has met his summary judgment burden of demonstrating a fact issue as to whether Kiere in fact drew that inference Therefore, the Court must proceed to evaluative whether Kiere acted with deliberate indifference to that substantial risk of harm.
Defendant Kiere accurately points out the distinction between knowledge of some risk and knowledge of a substantial risk. See Def. Kiere's Reply Br. at 12. The Supreme Court recognized the inherent danger in the jail or prison setting. Therefore, the plaintiff must prove more than a jail official's knowledge of general risks of some harm in the jail due to inmate violence. Rather, a plaintiff must demonstrate a jail official's knowledge of a substantial risk of serious harm. Farmer, 114 S.Ct. at 1990.
Letter from Sheriff Kiere to County Judge and County Commissioners (Sept. 30, 1997) Pugh/L App. at 46.
Kiere Deposition at 113.
Letter from Kiere to County Commissioners (June 3, 1998) Pugh/KJ App. at 92 (identifying "several recent incidents of jail violence, during which inmates received serious injuries at the hand of other inmates").
Id.
Kiere points to several actions taken by him in the two years prior to Pugh's attack to negate any finding of deliberate indifference. On more than one occasion he petitioned the commissioners' court for more funding to hire additional staff. He also sought funds to repair the locks, and asked for permission to contract with another county to house some of the inmates. Although these actions did not ultimately prevent Pugh from becoming an assault victim, he claims these affirmative measures taken by Kiere to address the jail's numerous problems are sufficient to show he did not act with deliberate indifference. See LaMarca, 995 F.2d at 1536.
See Summary of Minutes, Commissioners' Court Regular Meeting (Apr. 27, 1998) Pugh/L at 111 (requesting funds for six new jailers); Letter from Sheriff Kiere to County Judge and County Commissioners (Sept. 30, 1997) Pugh/L App. at 46 (urging Commissioners' Court to approve additional positions to properly staff the jail); Summary of Minutes, Commissioners' Court Regular Meeting (Oct. 27, 1997) Pugh/KJ App. at 122 (requesting permission to hire two new jailers).
See Kiere Deposition at 88 (testifying that he requested funds to repair locks at a meeting of the Commissioners' Court on May 15, 1998).
See Letter from Kiere to Commissioners' Court (Jan. 10, 1996) Pugh/KJ App. at 120-121 (requesting permission to transfer inmates to other facilities): Kiere Deposition at 68 (testifying that at Nov. 12, 1996 meeting, Kiere requested that the County contract to transfer inmates to other counties).
Pugh spends a substantial portion of his argument focusing on the steps Kiere took immediately after the Pugh assault. The day after the assault, Kiere instituted policies that provide for closer and more regular inmate observation. The new policies now require jailers to report to work thirty minutes early in order to conduct a thorough inmate head count three times a day He also changed the hourly checks to include face-to-face inmate checks, and established a policy to have jailers observe inmates while distributing medicine and food. Kiere also addressed some of the maintenance problems by fixing the intercoms, cell locks, and lighting. According to Pugh, if Kiere had taken these steps earlier, then it would have "dramatically reduced the likelihood of Mr. Pugh being beaten and sodomized at all and certainly would have prevented the severity of the injuries and humiliation." Pl's Resp. Br. at 23. Kiere admits that he could have implemented these changes prior to the Pugh assault. Instead of taking these steps earlier, Pugh argues that Kiere allowed the jail to degenerate to a point where Pugh went unobserved by any jailer for approximately 35 hours. Pl's Resp. Br. at 24.
See Kiere Deposition at 112
See Lewellyn Deposition at 46, Exh. 28. Pugh/KJ App
See Kiere Deposition at 133 (describing the new policy of requiring an inmate to come within view of the officer in order to refuse his medication)
See Gentry Deposition at 23 (stating that intercoms were fixed after Pugh assault); Ferguson Deposition at 27 (stating that intercom and locks have been repaired): Id. at 41 (stating that the lighting deficiencies in the jail have been corrected).
In reviewing all of the evidence, the Court finds an issue of fact as to whether Kiere acted with deliberate indifference to a substantial risk of harm to Pugh and others like him Kiere's argument seeking to insulate himself from liability because he requested extra budgetary allocations is unpersuasive. Neither petitioning the county commissioners for more funds nor assigning the entire supervision of the jail to Jones relieve Kiere of liability. Even if Kiere's petitions to the commissioners' court could have negated his deliberate indifference, his failure to address the maintenance problems and the staff's ineptness can establish deliberately indifference if he recklessly failed to act. In other words, his choice of one course of action over another will result in liability if he knew of an alternative method that would alleviate the harm and disregarded that option. See LaMarca, 995 F.2d at 1536,
According to Pugh, Kiere knew that his previous efforts to address the overcrowding and understaffing at the jail were insufficient because his pleas for funding fell on the deaf ears of the Conunissioners' Court. He therefore argues that Kiere could not rely upon his previous actions as a means of avoiding his duties to the inmates. Pl's Resp. Br. at 25.
As stated above, Kiere knew of the of the conditions and staff shortages at the jail prior to the alleged attack. However, Kiere knew surprisingly little about how the jail was actually operating under those conditions. For example, when asked at his deposition whether or not jailers actually observed inmates when performing the required head count, Kiere responded, "I don't know if they opened the door. I don't know if they looked through the window. I don't know how they were doing it." Pugh Depo at 117. He could not deny that the jailers perhaps performed the daily head count by simply counting the number of meals distributed in the jail on a given day. His testimony also reveals that he did not know whether jailers actually observed inmates when distributing those meals. He goes on to testify that he did not know whether a jailer was required to ever see an inmate in the course of a day. Given the conditions of the jail at the time — increased danger of inmate violence due to overcrowding, poor maintenance of the cells, maximum security cells operating at 250% capacity with only a small window and poor lighting to provide observation, broken locks on inner cell doors, and the presence of a man who had already been assaulted once in a cell with 4-5 other maximum security inmates — his complete lack of knowledge on the methods being used to observe and monitor the inmates demonstrate his inaction in addressing the conditions at the jail. Even with the limited resources available to him, Kiere had the capability to take action concerning matters within his direct control to correct or minimalize some of these hazards. His failure to do so could be considered reckless. The summary judgment evidence creates a question of fact as to whether Kiere's inaction constituted deliberate indifference.
Pugh also seeks liability on the basis of Kiere's failure to supervise, train, and monitor his jailers to ensure that they properly carried out his established policies and procedures. In support of Kiere's liability, Pugh points to several deficiencies in Kiere's supervision and training of the jail staff Pugh points to Kiere's lack of knowledge as to how the hourly checks and head counts were being performed. After establishing policies and procedures for conducting these activities, Kiere left their implementation to Captain Jones. Pugh criticizes this action because Kiere had previously investigated and disciplined Jones for mistreating an inmate He also criticizes the complete delegation of these responsibilities to Jones as an abrogation of Kiere's statutory responsibilities. Specifically, the Texas Local Government Code Section 351.041 allows a sheriff to appoint a jailer to operate the jail, but mandates that the sheriff retain supervision and control over the jail. Pugh also alleges that the jailers received no training on how to manage an inmate hostage situation and were inadequately trained on how to properly classify inmates during their original processing in the jail.
See supra n. 27 and accompanying text for a discussion of the standard for supervisory liability.
See Kiere Deposition at 117, 126 (stating that he never conducted spot checks to ensure that the jailers were complying with the policies and procedures established for viewing inmates), Id. at 214 (stating that he delegated to Jones the responsibility for seeing that hourly checks were being properly conducted).
Jones had been previously disciplined for slapping an inmate who was bound at both the feet and hands. See Reagan Deposition at 12-13, Exh. 32. Pugh/KJ App. After an investigation. Sergeant Reagan recommended his termination in order to reduce liability for a negligent retention claim Id. at 60-62. However, Kiere did not take the advice and instead sent Jones home for the day without pay. Id at 13-14. 60
A plaintiff cannot establish supervisory liability by proving that an injury could have been avoided if an officer had received better training. City of Canton, 109 S.Ct. 1206. Rather, Pugh must show: (1) Kiere failed to supervise or train the jailers; (2) a causal connection between the failure to supervise or train and the violation of his constitutional right, and (3) such failure to supervise or train amounted to gross negligence or deliberate indifference. Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996). Usually, a failure to supervise claim will only give rise to liability under Section 1983 in situations in which there is a history of widespread abuse
The jailers at Rockwall County Jail were all certified pursuant to the certification procedures of the Texas Commission on Law Enforcement Standards. See Kiere Aff. at 20. However, some of the jailers testified that they had never received training on the classification system for processing inmates and did not know how to apply the different categories Some of the jailers had never received training on how to approach a situation involving inmate violence. An adequate training program must "enable officers to properly respond to the usual and recurring situations with which they must deal." Benavides v. Wilson County, 955 F.2d 968, 973 (5th Cir. 1992) quotingCity of Canton, 109 S.Ct. at 1205. Both the classification of new inmates and instances of inmate violence are sufficiently usual and recurring to require training. The evidence creates a fact issue as to Kiere's deliberate indifference to the need for training.
Gentry Deposition at 36 ("[N]one of us really knew what classification — what it actually meant prior to the Pugh assault."). See also, Hendley Deposition at 93 (testifying to receiving training on the classification and assessment of inmates after the Pugh assault).
See Gentry Deposition at 10 (testifying that he had never received training on recognizing or preventing inmate on inmate violence): Ferguson Deposition at 10 (same).
Plaintiff also carried his burden on his failure to supervise claim. Delegating the daily responsibilities of operating the jail and supervising the jailers to Jones does not, without more, establish deliberate indifference, even though Jones had been the subject of a previous disciplinary action. However, it appears as though Kiere did very little to supervise Jones or to fulfill his statutory obligation to supervise the jailers. As such, there is a question of fact as to whether Kiere acted with deliberate indifference in failing to supervise the jailers. For the reasons stated in association with the same analysis of the claims against Jones, Pugh has sufficiently alleged causation between Kiere's failures and the extent of Pugh's injuries. Summary judgment on this basis is not appropriate for Pugh's claims against Kiere
B. Constitutional Right as Clearly Established
To be clearly established, the constitutional right must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right It is not necessary that there be a case which is factually identical or which holds the specific action at bar unlawful Rather, the unlawfulness of the action must be apparent in light of the existing law" Hare v. City of Corinth, 36 F.3d 412, 415 (5th Cir. 1994). Therefore, this Court must determine whether there was a clearly established constitutional duty for Defendants Jones and Kiere, as a jail officials, to provide Pugh with protection against inmate on inmate violence. In doing so, the Court will look to the law as established by decisions of the Supreme Court and the Fifth Circuit See, Boddie v. City of Columbus Miss., 989 F.2d 745, 748 (5th Cir. 1993)
The Constitution does not mandate "comfortable prisons," but the Fourteenth Amendment does prohibit pre-trial detainees from being held under inhumane conditions. Under the clearly established law of the Supreme Court and the Fifth Circuit, a prison official has a constitutional duty to protect inmates from violence at the hands of other prisoners. Farmer, 511 U.S. at 833 (recognizing that lower courts have uniformly held and the Supreme Court has assumed that prison officials have a duty to protect prisoners from violence at the hands of other prisoners),Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995); accord Johnston v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986). For the purposes of qualified immunity analysis, the Plaintiff has established a violation of his clearly established constitutional rights by Defendants Jones and Kiere Accordingly, the Court will now address the reasonableness of the Defendants actions.
C. Reasonableness of the Official's Actions
To determine the objective reasonableness of an official's conduct, the court examines whether a reasonable officer could have believed their conduct to be lawful in light of clearly established law and the information he possessed. Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998).
a. Defendant Jones
Pugh argues that any effort to more closely monitor the inmates would have reduced his injuries or reduced the likelihood of the assault Jones seems to argue that because he could not have prevented the assault, his actions or inactions were reasonable. The Court disagrees. Deliberate indifference in many qualified immunity cases may hinge upon the official taking any action, regardless of whether or not the action ultimately prevents the injury. The evidence indicates that Officer Lewellyn immediately recognized Pugh's condition during a quick view of his face through the cell opening. This creates a question of fact as to whether Pugh's injuries would have been more quickly discovered had Jones not condoned flagrant violations of the jail's procedures for monitoring inmates His inability to prevent the attack from occurring does not render his later failure to minimize the duration objectively reasonable.
See supra Section A2 (discussing requirements for deliberate indifference).
See Voluntary Statement of Lewellyn. Exh. 15, Pugh/KJ App. at 90 (stating that she saw through the port hole door "severe bruising and swelling to his face" as a result of being "badly beaten").
Jones also argues the reasonableness of his actions because he did not have the authority to seek additional funding or staff, or implement new procedures. Pugh does not complain that Jones failed to address the overcrowded situation by reducing the number of inmates or increasing the number of staff. Rather, Pugh faults Jones for knowingly disregarding his duties in making sure that the jailers performed the functions that they could. He knew the jailers were not performing visuals or headcounts, or seeing inmates during medication and meal distributions. He knew the lighting was bad and the locks were broken. He knew dangerous men were being confined in very close quarters. And yet, under his enforcement of the jail's policies, he cannot account for the whereabouts of a maximum security prisoner, confined in a cell with four other maximum security prisoner, for at least thirty-five hours. His failure to make an attempt at properly observing the inmates or follow jail policy is not rendered reasonable by the need for more jailers.
Jones Deposition, at 138.
Jones has maintained the reasonableness of his response to the Diem request form because of his experience that 90% of kites are false. This belief, even if true, does not excuse, justify, or make reasonable his inaction. See Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (finding unreasonable official's failure to investigate a complaint letter wherein inmate complained of threats to his safety by jailer even though the official received six thousand complaint letters per year). Diem's note clearly identified the victim and his assailants and described the assaults that had already taken place. Moreover, Diem's note expressed concern about future assaults. Jones's purported concern about the safety Diem and Pugh does not make reasonable his apparent decision to wait hours to investigate the truthfulness of the note He certainly could have found another way to immediately check the situation. In light of all of the information, the Court cannot find Jones' actions objectively reasonable. Therefore, the Court DENIES Defendant Jones' Motion for Summary Judgment based upon Qualified Immunity.
Jones Affidavit, Jones App. at 2.
b. Defendant Kiere
Sheriff Kiere moves for summary judgment on the ground that considering the circumstances, a reasonably prudent jail official could have believed that Sheriff Kiere's conduct was lawful. Kiere Reply at 23-24. He then relies upon his petitions to the county commissioners requesting additional funding to relieve the overcrowding issues at the jail as demonstrating his reasonableness in addressing the situation. Considering all of the facts available to Kiere — the many times his requests had been denied, the severity of the overcrowding, the lack of proper monitoring of the inmates, and the broken locks and other maintenance needs — the Court cannot find that a reasonably prudent sheriff could have believed it lawful to in essence sit on his hands until the county finally came through. The Court cannot find that a reasonably prudent sheriff would have refrained from fixing the locks or from making sure that the jail staff did what was possible to implement the jail's policies and monitor inmates. In looking at the Sheriff's testimony, it seems as though he could not identify one time during the day when a jail official would be required to look at an inmate because, as he stated, "[he] had other things to do." In light of all of the information, the Court cannot find Kiere's actions objectively reasonable. Therefore, the Court DENIES Defendant Kiere's Motion for Summary Judgment based upon Qualified Immunity.
Kiere Deposition at 214.
CONCLUSION
For the reasons stated herein, the Court hereby DENIES Defendant Sheriff Kiere's Motion for Summary Judgment based upon Qualified Immunity. The Court also DENIES Defendant Jones's Motion for Summary Judgment based upon Qualified immunity.
So ordered this 19th day of May, 2000.