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Fifth Circuit Reverses Scott
The court of appeals for the fifth circuit, sitting en banc, reversed its prior holding in Scott v. Moore, 85 F.3d 230 (5th Cir. 1996) [PLN, June, 1997] that inadequate jail staffing violated the due process rights of a woman detainee who was repeatedly raped by a jail guard. This ruling will make it extremely difficult to hold municipalities liable for constitutional violations that befall jail detainees in the fifth circuit. Artelia Scott was arrested on minor charges and placed in the Killeen City, Texas, jail. The jail had a policy of only one jailer being on duty at any given time. While in the jail Scott was raped several times by jail guard George Moore. Eventually Moore resigned and was convicted of the rapes.
Scott filed suit in state court against Moore and the city. Moore declared bankruptcy and was dismissed from the suit. The city then removed the case to federal court where it won summary judgment. The court of appeals affirmed on all counts except Scott's claim that inadequate staffing at the jail violated her right to due process by making rapes by guards more likely. On remand the district court again dismissed the suit, which the appeals court reversed at 85 F.3d 230 (5th Cir. 1996). This ruling vacates the prior appellate ruling and affirms dismissal of Scott's inadequate staffing claim.
The court relied on Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996)(en bane) [PLN, Oct. 1996] which set forth the different standards of review to be applied in constitutional claims by pretrial detainees. 'Where a detainee complains of the number of bunks in a cell or his television and mail privileges, the wrong of which the detainee complains is a general condition of confinement." In such cases courts should apply Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979) and courts will find "a constitutional violation exists only if we then find that the condition of confinement is not reasonably related to a legitimate, non punitive governmental objective."
"In contrast, where the complained of harm is a particular act or omission of one or more officials, the action is characterized properly as an 'episodic act or omission' case and is not amenable to review under the Wolfish test .... In an 'episodic act or omission' case, an actor usually is interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom or rule (or lack thereof) of the municipality that permitted or caused the act of omission."
The court applied this standard to determine that while Scott complained of inadequate jail staffing, namely having only one jailer on duty at any given time, "The actual harm of which she complains is the sexual assaults committed by Moore during the one eight hour shift-an episodic event perpetrated by an actor interposed between Scott and the city, but allegedly caused or permitted by the aforesaid general conditions."
The court held that while Scott had established that the rapes constituted subjective deliberate indifference to her constitutional rights, she did not establish the objective component required by Hare. The court held there was no showing the city had any knowledge that its staffing policy created a substantial risk of harm to female detainees because it had maintained the same staffing level at the jail for decades without incident. Moreover, the city conducted extensive background checks of jailers before hiring them and Moore had a good employment record before being arrested. The court held that Scott's evidence: expert testimony on appropriate jail staffing levels; sworn testimony from a transvestite prisoner that he had performed oral sex on Moore on several ocassions while in the jail and Moore's own statements to police that he had oral sex with over a dozen prisoners on different occasions, was all immaterial. "None of this evidence, however, establishes that the city knew or should have known of the risk attendant to its staffing policy."
In a footnote the court acknowledged the recent supreme court ruling, Board of County Commissioners v. Brown, 117 S.Ct. 1382 (1997) that to hold a municipality liable under § 1983 for deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action."
The upshot in this case is that Scott was placed in a jail that had only one jailer on duty at any given time and she was raped repeatedly by a jail guard and she was then unable to collect any damages because the city was, according to the courts, not deliberately indifferent to her safety. The dissenting opinion, by four judges, would have at least allowed Scott a trial. The dissent held the inadequate jail staffing was a "condition of confinement" claim. "The majority opinion is, regrettably, a subterfuge to avoid opening the floodgates of litigation." See: Scott v. Moore, 114 F.3d 51 (5th Cir. 1997)(en banc). Readers should not cite the prior ruling in the case as it is no longer valid.
Scott filed suit in state court against Moore and the city. Moore declared bankruptcy and was dismissed from the suit. The city then removed the case to federal court where it won summary judgment. The court of appeals affirmed on all counts except Scott's claim that inadequate staffing at the jail violated her right to due process by making rapes by guards more likely. On remand the district court again dismissed the suit, which the appeals court reversed at 85 F.3d 230 (5th Cir. 1996). This ruling vacates the prior appellate ruling and affirms dismissal of Scott's inadequate staffing claim.
The court relied on Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996)(en bane) [PLN, Oct. 1996] which set forth the different standards of review to be applied in constitutional claims by pretrial detainees. 'Where a detainee complains of the number of bunks in a cell or his television and mail privileges, the wrong of which the detainee complains is a general condition of confinement." In such cases courts should apply Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979) and courts will find "a constitutional violation exists only if we then find that the condition of confinement is not reasonably related to a legitimate, non punitive governmental objective."
"In contrast, where the complained of harm is a particular act or omission of one or more officials, the action is characterized properly as an 'episodic act or omission' case and is not amenable to review under the Wolfish test .... In an 'episodic act or omission' case, an actor usually is interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom or rule (or lack thereof) of the municipality that permitted or caused the act of omission."
The court applied this standard to determine that while Scott complained of inadequate jail staffing, namely having only one jailer on duty at any given time, "The actual harm of which she complains is the sexual assaults committed by Moore during the one eight hour shift-an episodic event perpetrated by an actor interposed between Scott and the city, but allegedly caused or permitted by the aforesaid general conditions."
The court held that while Scott had established that the rapes constituted subjective deliberate indifference to her constitutional rights, she did not establish the objective component required by Hare. The court held there was no showing the city had any knowledge that its staffing policy created a substantial risk of harm to female detainees because it had maintained the same staffing level at the jail for decades without incident. Moreover, the city conducted extensive background checks of jailers before hiring them and Moore had a good employment record before being arrested. The court held that Scott's evidence: expert testimony on appropriate jail staffing levels; sworn testimony from a transvestite prisoner that he had performed oral sex on Moore on several ocassions while in the jail and Moore's own statements to police that he had oral sex with over a dozen prisoners on different occasions, was all immaterial. "None of this evidence, however, establishes that the city knew or should have known of the risk attendant to its staffing policy."
In a footnote the court acknowledged the recent supreme court ruling, Board of County Commissioners v. Brown, 117 S.Ct. 1382 (1997) that to hold a municipality liable under § 1983 for deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action."
The upshot in this case is that Scott was placed in a jail that had only one jailer on duty at any given time and she was raped repeatedly by a jail guard and she was then unable to collect any damages because the city was, according to the courts, not deliberately indifferent to her safety. The dissenting opinion, by four judges, would have at least allowed Scott a trial. The dissent held the inadequate jail staffing was a "condition of confinement" claim. "The majority opinion is, regrettably, a subterfuge to avoid opening the floodgates of litigation." See: Scott v. Moore, 114 F.3d 51 (5th Cir. 1997)(en banc). Readers should not cite the prior ruling in the case as it is no longer valid.
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Related legal case
Scott v. Moore
| Year | 1997 |
|---|---|
| Cite | 114 F.3d 51 (5th Cir. 1997) (en banc) |
| Level | Court of Appeals |
Scott v. Moore, 114 F.3d 51 (5th Cir. 05/20/1997)
[1] U.S. Court of Appeals, Fifth Circuit
[2] No. 93-8603
[4] decided: May 20, 1997.
[5] ARTELIA M. SCOTT, PLAINTIFF-APPELLANT, VERSUS GEORGE E. MOORE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE CITY OF KILLEEN POLICE DEPARTMENT; F.L. GIACOMOZZI, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, AND CITY OF KILLEEN, TEXAS, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the Western District of Texas. W-92-CV-6. Walter S Smith, Jr, US District Judge.
[7] For ARTELIA M SCOTT, Plaintiff - Appellant: Monita Rose Johnson, Austin, TX.
[8] For GEORGE E MOORE, Individually and as Employee of Killeen Police Department, CITY OF KILLEEN, Police Department, THE CITY OF KILLEEN, TEXAS, Defendants - Appellees: Diane J Van Helden, Austin, TX.
[9] Before Politz, Chief Judge, Wisdom, King, Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Duhe, Wiener, Barksdale, Emilio M. Garza, DeMOSS, Benavides, Stewart, Parker, and Dennis, Circuit Judges.
[10] Author: Smith
[11] JERRY E. SMITH, Circuit Judge:
[12] While a pretrial detainee at the Killeen city jail, Artelia Scott was sexually assaulted by a jailer, defendant George Moore. She brings a constitutional claim under 42 U.S.C. § 1983, asserting that the attacks resulted from improper staffing procedures at the jail. In particular, she argues that constitutionally adequate staffing would include having, at a minimum, a female jail official, or at least two male jail officials, on duty whenever a female pretrial detainee is in custody.
[13] We affirm the summary judgment in favor of the city, concluding that the Constitution does not require the level of staffing Scott demands. In so doing, we employ a straightforward application of Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc), in which we explained the constitutional standards, under the Due Process Clause, applicable to pretrial detainees in local jails.
[14] I.
[15] Scott was arrested on December 31, 1988, for public intoxication, assault, and resisting arrest. She was taken to the jail, processed by the female jailer on duty at the time, and placed in a holding cell pending arraignment. Moore subsequently replaced the female jailer, entered Scott's cell, and sexually assaulted her repeatedly during the course of his eight-hour shift. After being placed on administrative leave pending a police investigation, Moore resigned and pleaded guilty to criminal charges in connection with the assault.
[16] II.
[17] Scott filed suit in state court against Moore and the city, asserting various constitutional claims. Moore then declared bankruptcy and was dismissed from the suit, whereupon the city removed the case to federal court. The district court granted summary judgment for defendants, and a panel of this court affirmed on all issues except for Scott's inadequate staffing claim under § 1983. See Scott v. Moore (" Scott I "), 987 F.2d 771, No. 92-8284 (5th Cir. Mar. 3, 1993) (per curiam) (unpublished).
[18] After remand, the district court granted summary judgment for defendants on the inadequate staffing claim. A second panel of this court vacated and remanded, whereupon we resolved to hear the matter en banc to consider the proper application of Hare to the instant facts. See Scott v. Moore, 85 F.3d 230 (5th Cir.), vacated for reh'g en banc, 85 F.3d 240 (5th Cir. 1996).
[19] III.
[20] A.
[21] In Hare, we reconciled our circuit caselaw regarding pretrial detainees, informed in particular by Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994).*fn1 We noted that determining which standard to apply in analyzing constitutional challenges by pretrial detainees hinges upon the classification of a challenge as an attack on a "condition of confinement" or as an "episodic act or omission." 74 F.3d at 644. A "condition of confinement" case is a "constitutional attack[] on general conditions, practices, rules, or restrictions of pretrial confinement." Id.
[22] Hence, where a detainee complains of the number of bunks in a cell or his television or mail privileges,*fn2 the wrong of which the detainee complains is a general condition of confinement. In such cases, the reasonable relationship test of Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), is apposite, as we may safely assume, by the municipality's very promulgation and maintenance of the complained-of condition, that it intended to cause the alleged constitutional deprivation. See Hare, 74 F.3d at 645 ("Only with such intentionality as a given is the [ Wolfish ] test useful."). Under Wolfish, 441 U.S. at 539, a constitutional violation exists only if we then find that the condition of confinement is not reasonably related to a legitimate, non-punitive governmental objective. See Hare, 74 F.3d at 640.
[23] In contrast, where the complained-of harm is a particular act or omission of one or more officials, the action is characterized properly as an "episodic act or omission" case and is not amenable to review under the Wolfish test. See Hare, 74 F.3d at 645. In an "episodic act or omission" case, an actor usually is interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act or omission.
[24] Although, in her amended state petition, Scott complains generally of inadequate staffing, i.e., "by having only one individual on duty, and/or by not having a female member present when female prisoners are confined," the actual harm of which she complains is the sexual assaults committed by Moore during the one eight-hour shift--an episodic event perpetrated by an actor interposed between Scott and the city, but allegedly caused or permitted by the aforesaid general conditions.
[25] In many jail condition cases, the conditions themselves constitute the harm. This is true, for example, where inadequate food, heating, or sanitary conditions themselves constitute miserable conditions. Here, however, Scott did not suffer from the mere existence of the alleged inadequate staffing, but only from Moore's specific sexual assaults committed on but one occasion.
[26] Consequently, this case does not fit well within the conditions-of-confinement category and, in fact, bears a closer resemblance to cases regarding episodic acts by prison employees. Importantly, however, in Hare we carefully noted that the reasonable-relationship test employed in conditions cases is "functionally equivalent to" the deliberate indifference standard employed in episodic cases. See Hare, 74 F.3d at 643; id. at 646.
[27] As in most cases involving incidents at jails, the defendants here are both individual (Moore) and governmental (the city and the police chief in his official capacity). While the specific episode may be perpetrated by one or more persons, any underlying conditions that may have caused it or made it possible are the product of the city's policy, action, or inaction.
[28] Hence, Hare requires that we separate the inquiry pertinent to the episodic act or omission ("the existence of a constitutional violation simpliciter") from that pertinent to the custom, rule, or policy that is alleged to have permitted the act ("a municipality's liability for that violation"). 74 F.3d at 649 n.4. Specifically, in Hare we described the proper methodology as follows:
[29] We separate the two issues: the existence of a constitutional violation simpliciter and a municipality's liability for that violation. Different versions of the deliberate indifference test govern the two inquiries. Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights. See Farmer [ v. Brennan, 511 U.S. 825, 841, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994)] ("It would be hard to describe the Canton [ v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)] understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.").
[30] Id.
[31] So, as to the discrete, episodic act, the detainee must establish only that the constitutional violation complained of was done with subjective deliberate indifference to that detainee's constitutional rights. Id. In the instant case, Scott has met that burden.
[32] Accordingly, we next must determine whether the city may be held accountable for that violation. Under Hare, as we have stated, this latter burden may be met by putting forth facts sufficient to demonstrate that the predicate episodic act or omission resulted from a municipal custom, rule, or policy adopted or maintained with objective deliberate indifference to the detainee's constitutional rights. See Grabowski v. Jackson County Pub. Defenders Office, 79 F.3d 478, 479 (5th Cir. 1996) (per curiam) (en banc) (citing Hare, 74 F.3d at 649 n.4).
[33] B.
[34] There is no genuine issue of material fact concerning whether the city's failure to adopt a policy of additional staffing amounts to objective deliberate indifference. First, there is no showing that the city had actual knowledge that its staffing policy created a substantial risk of harm to female detainees. To the contrary, the city had followed the same staffing procedures since the late 1970's without any incident and had received no complaint of sexual assault by a jailer prior to this incident. As a condition of employment, Moore and the other three jailers underwent a background investigation, medical examination, and polygraph test, none of which revealed any issues of concern. Moore also had been employed previously as a commissioned police officer, without incident, for four years prior to his employment with the jail and had been trained by experienced jailers in the official policies of jail management.
[35] Scott offers the following evidence to suggest that the city should have known about the risks inherent in the staffing policy and in employing Moore: (1) the affidavit of Charles Craig, an expert in jail policy, who noted that a prison should have female officers to prevent assaults and that male officers should be supervised when allowed access to female inmates; (2) the affidavit of Melvin Williams, a local transvestite, who stated that he had performed oral sex on Moore during several different occasions when he had been under Moore's guard; and (3) Moore's statement to the police team investigating the rape, to the effect that he had had oral sex with more than a dozen other inmates on separate occasions. None of this evidence, however, establishes that the city knew or should have known of the risk attendant to its staffing policy.*fn3
[36] The city not only had instituted hiring procedures, including background checks, medical examinations, and polygraph tests, to minimize the risks of employing renegade jailers, but also had promulgated a general order to regulate the management of the jail and had trained its jailers in its provisions. Among other things, that order (1) prohibits male officers from frisking or conducting pat-down searches of female detainees; (2) requires that female detainees be searched by female personnel only; and (3) generally limits conduct between male and female jailers and detainees.
[37] In addition, the jail is located on the first floor of the police department, in the patrol division area, and a patrol duty sergeant periodically checks on jail personnel. In fact, more than one hundred uniformed officers have unlimited access to the jail, making the clandestine commission of sexual offenses extremely difficult.
[38] These actions, viewed individually and taken in whole, reflect substantial attention to the safety of female detainees. "This effort indicates not apathy, but concern." Rhyne v. Henderson County, 973 F.2d 386, 393 (5th Cir. 1992). At best, the evidence proffered by Scott may be construed to suggest that the jail could have been managed better, or that the city lacked sufficient prescience to anticipate that a well-trained jailer would, without warning, assault a female detainee. In either event, they do not reflect objective deliberate indifference to Scott's constitutional rights.*fn4
[39] The summary judgment, accordingly, is AFFIRMED.
[40] Disposition
[41] AFFIRMED.
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Opinion Footnotes
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[42] *fn1 Hare has been described as "a single opinion that clearly and concisely articulates and unifies our court's case law in this area." Nerren v. Livingston Police Dep't, 86 F.3d 469, 473 n.25 (5th Cir. 1996).
[43] *fn2 The following were deemed to be conditions-of-confinement cases: Murphy v. Walker, 51 F.3d 714 (7th Cir. 1995) (revocation of telephone, television, and cigarette privileges); Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315 (1st Cir. 1995) (disciplinary segregation and denial of telephone and visitation privileges); United States v. Millan, 4 F.3d 1038 (2d Cir. 1993) (length of pre-trial detention); Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993) (restriction on mail privileges); Brogsdale v. Barry, 288 U.S. App. D.C. 311, 926 F.2d 1184 (D.C. Cir. 1991) (overcrowding); Lyons v. Powell, 838 F.2d 28 (1st Cir. 1988) (22-23-hour confinement and placement of mattress on floor); Fredericks v. Huggins, 711 F.2d 31 (4th Cir. 1983) (policy of refusing detainees access to drugs for rehabilitation); Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) (overcrowding).
[44] *fn3 The first panel to review this case stated, "There is no record evidence, however, that [police chief] Giacomozzi or any other policymaking official of the City was aware of any sexual assaults committed either by Moore or by other jail employees . . . . Scott has failed to show that Giacomozzi or any other city officials knew of or tolerated any sexual assaults in the city jail." Scott I, at 5, 7.
[45] *fn4 Most recently, the Supreme Court has reminded us that for purposes of liability under § 1983, "'deliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of County Comm'rs v. Brown, 137 L. Ed. 2d 626, 117 S. Ct. 1382, 1391 (1997).
[1] U.S. Court of Appeals, Fifth Circuit
[2] No. 93-8603
[4] decided: May 20, 1997.
[5] ARTELIA M. SCOTT, PLAINTIFF-APPELLANT, VERSUS GEORGE E. MOORE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE CITY OF KILLEEN POLICE DEPARTMENT; F.L. GIACOMOZZI, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, AND CITY OF KILLEEN, TEXAS, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the Western District of Texas. W-92-CV-6. Walter S Smith, Jr, US District Judge.
[7] For ARTELIA M SCOTT, Plaintiff - Appellant: Monita Rose Johnson, Austin, TX.
[8] For GEORGE E MOORE, Individually and as Employee of Killeen Police Department, CITY OF KILLEEN, Police Department, THE CITY OF KILLEEN, TEXAS, Defendants - Appellees: Diane J Van Helden, Austin, TX.
[9] Before Politz, Chief Judge, Wisdom, King, Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Duhe, Wiener, Barksdale, Emilio M. Garza, DeMOSS, Benavides, Stewart, Parker, and Dennis, Circuit Judges.
[10] Author: Smith
[11] JERRY E. SMITH, Circuit Judge:
[12] While a pretrial detainee at the Killeen city jail, Artelia Scott was sexually assaulted by a jailer, defendant George Moore. She brings a constitutional claim under 42 U.S.C. § 1983, asserting that the attacks resulted from improper staffing procedures at the jail. In particular, she argues that constitutionally adequate staffing would include having, at a minimum, a female jail official, or at least two male jail officials, on duty whenever a female pretrial detainee is in custody.
[13] We affirm the summary judgment in favor of the city, concluding that the Constitution does not require the level of staffing Scott demands. In so doing, we employ a straightforward application of Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc), in which we explained the constitutional standards, under the Due Process Clause, applicable to pretrial detainees in local jails.
[14] I.
[15] Scott was arrested on December 31, 1988, for public intoxication, assault, and resisting arrest. She was taken to the jail, processed by the female jailer on duty at the time, and placed in a holding cell pending arraignment. Moore subsequently replaced the female jailer, entered Scott's cell, and sexually assaulted her repeatedly during the course of his eight-hour shift. After being placed on administrative leave pending a police investigation, Moore resigned and pleaded guilty to criminal charges in connection with the assault.
[16] II.
[17] Scott filed suit in state court against Moore and the city, asserting various constitutional claims. Moore then declared bankruptcy and was dismissed from the suit, whereupon the city removed the case to federal court. The district court granted summary judgment for defendants, and a panel of this court affirmed on all issues except for Scott's inadequate staffing claim under § 1983. See Scott v. Moore (" Scott I "), 987 F.2d 771, No. 92-8284 (5th Cir. Mar. 3, 1993) (per curiam) (unpublished).
[18] After remand, the district court granted summary judgment for defendants on the inadequate staffing claim. A second panel of this court vacated and remanded, whereupon we resolved to hear the matter en banc to consider the proper application of Hare to the instant facts. See Scott v. Moore, 85 F.3d 230 (5th Cir.), vacated for reh'g en banc, 85 F.3d 240 (5th Cir. 1996).
[19] III.
[20] A.
[21] In Hare, we reconciled our circuit caselaw regarding pretrial detainees, informed in particular by Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994).*fn1 We noted that determining which standard to apply in analyzing constitutional challenges by pretrial detainees hinges upon the classification of a challenge as an attack on a "condition of confinement" or as an "episodic act or omission." 74 F.3d at 644. A "condition of confinement" case is a "constitutional attack[] on general conditions, practices, rules, or restrictions of pretrial confinement." Id.
[22] Hence, where a detainee complains of the number of bunks in a cell or his television or mail privileges,*fn2 the wrong of which the detainee complains is a general condition of confinement. In such cases, the reasonable relationship test of Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), is apposite, as we may safely assume, by the municipality's very promulgation and maintenance of the complained-of condition, that it intended to cause the alleged constitutional deprivation. See Hare, 74 F.3d at 645 ("Only with such intentionality as a given is the [ Wolfish ] test useful."). Under Wolfish, 441 U.S. at 539, a constitutional violation exists only if we then find that the condition of confinement is not reasonably related to a legitimate, non-punitive governmental objective. See Hare, 74 F.3d at 640.
[23] In contrast, where the complained-of harm is a particular act or omission of one or more officials, the action is characterized properly as an "episodic act or omission" case and is not amenable to review under the Wolfish test. See Hare, 74 F.3d at 645. In an "episodic act or omission" case, an actor usually is interposed between the detainee and the municipality, such that the detainee complains first of a particular act of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or lack thereof) of the municipality that permitted or caused the act or omission.
[24] Although, in her amended state petition, Scott complains generally of inadequate staffing, i.e., "by having only one individual on duty, and/or by not having a female member present when female prisoners are confined," the actual harm of which she complains is the sexual assaults committed by Moore during the one eight-hour shift--an episodic event perpetrated by an actor interposed between Scott and the city, but allegedly caused or permitted by the aforesaid general conditions.
[25] In many jail condition cases, the conditions themselves constitute the harm. This is true, for example, where inadequate food, heating, or sanitary conditions themselves constitute miserable conditions. Here, however, Scott did not suffer from the mere existence of the alleged inadequate staffing, but only from Moore's specific sexual assaults committed on but one occasion.
[26] Consequently, this case does not fit well within the conditions-of-confinement category and, in fact, bears a closer resemblance to cases regarding episodic acts by prison employees. Importantly, however, in Hare we carefully noted that the reasonable-relationship test employed in conditions cases is "functionally equivalent to" the deliberate indifference standard employed in episodic cases. See Hare, 74 F.3d at 643; id. at 646.
[27] As in most cases involving incidents at jails, the defendants here are both individual (Moore) and governmental (the city and the police chief in his official capacity). While the specific episode may be perpetrated by one or more persons, any underlying conditions that may have caused it or made it possible are the product of the city's policy, action, or inaction.
[28] Hence, Hare requires that we separate the inquiry pertinent to the episodic act or omission ("the existence of a constitutional violation simpliciter") from that pertinent to the custom, rule, or policy that is alleged to have permitted the act ("a municipality's liability for that violation"). 74 F.3d at 649 n.4. Specifically, in Hare we described the proper methodology as follows:
[29] We separate the two issues: the existence of a constitutional violation simpliciter and a municipality's liability for that violation. Different versions of the deliberate indifference test govern the two inquiries. Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights. See Farmer [ v. Brennan, 511 U.S. 825, 841, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994)] ("It would be hard to describe the Canton [ v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)] understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.").
[30] Id.
[31] So, as to the discrete, episodic act, the detainee must establish only that the constitutional violation complained of was done with subjective deliberate indifference to that detainee's constitutional rights. Id. In the instant case, Scott has met that burden.
[32] Accordingly, we next must determine whether the city may be held accountable for that violation. Under Hare, as we have stated, this latter burden may be met by putting forth facts sufficient to demonstrate that the predicate episodic act or omission resulted from a municipal custom, rule, or policy adopted or maintained with objective deliberate indifference to the detainee's constitutional rights. See Grabowski v. Jackson County Pub. Defenders Office, 79 F.3d 478, 479 (5th Cir. 1996) (per curiam) (en banc) (citing Hare, 74 F.3d at 649 n.4).
[33] B.
[34] There is no genuine issue of material fact concerning whether the city's failure to adopt a policy of additional staffing amounts to objective deliberate indifference. First, there is no showing that the city had actual knowledge that its staffing policy created a substantial risk of harm to female detainees. To the contrary, the city had followed the same staffing procedures since the late 1970's without any incident and had received no complaint of sexual assault by a jailer prior to this incident. As a condition of employment, Moore and the other three jailers underwent a background investigation, medical examination, and polygraph test, none of which revealed any issues of concern. Moore also had been employed previously as a commissioned police officer, without incident, for four years prior to his employment with the jail and had been trained by experienced jailers in the official policies of jail management.
[35] Scott offers the following evidence to suggest that the city should have known about the risks inherent in the staffing policy and in employing Moore: (1) the affidavit of Charles Craig, an expert in jail policy, who noted that a prison should have female officers to prevent assaults and that male officers should be supervised when allowed access to female inmates; (2) the affidavit of Melvin Williams, a local transvestite, who stated that he had performed oral sex on Moore during several different occasions when he had been under Moore's guard; and (3) Moore's statement to the police team investigating the rape, to the effect that he had had oral sex with more than a dozen other inmates on separate occasions. None of this evidence, however, establishes that the city knew or should have known of the risk attendant to its staffing policy.*fn3
[36] The city not only had instituted hiring procedures, including background checks, medical examinations, and polygraph tests, to minimize the risks of employing renegade jailers, but also had promulgated a general order to regulate the management of the jail and had trained its jailers in its provisions. Among other things, that order (1) prohibits male officers from frisking or conducting pat-down searches of female detainees; (2) requires that female detainees be searched by female personnel only; and (3) generally limits conduct between male and female jailers and detainees.
[37] In addition, the jail is located on the first floor of the police department, in the patrol division area, and a patrol duty sergeant periodically checks on jail personnel. In fact, more than one hundred uniformed officers have unlimited access to the jail, making the clandestine commission of sexual offenses extremely difficult.
[38] These actions, viewed individually and taken in whole, reflect substantial attention to the safety of female detainees. "This effort indicates not apathy, but concern." Rhyne v. Henderson County, 973 F.2d 386, 393 (5th Cir. 1992). At best, the evidence proffered by Scott may be construed to suggest that the jail could have been managed better, or that the city lacked sufficient prescience to anticipate that a well-trained jailer would, without warning, assault a female detainee. In either event, they do not reflect objective deliberate indifference to Scott's constitutional rights.*fn4
[39] The summary judgment, accordingly, is AFFIRMED.
[40] Disposition
[41] AFFIRMED.
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Opinion Footnotes
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[42] *fn1 Hare has been described as "a single opinion that clearly and concisely articulates and unifies our court's case law in this area." Nerren v. Livingston Police Dep't, 86 F.3d 469, 473 n.25 (5th Cir. 1996).
[43] *fn2 The following were deemed to be conditions-of-confinement cases: Murphy v. Walker, 51 F.3d 714 (7th Cir. 1995) (revocation of telephone, television, and cigarette privileges); Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315 (1st Cir. 1995) (disciplinary segregation and denial of telephone and visitation privileges); United States v. Millan, 4 F.3d 1038 (2d Cir. 1993) (length of pre-trial detention); Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993) (restriction on mail privileges); Brogsdale v. Barry, 288 U.S. App. D.C. 311, 926 F.2d 1184 (D.C. Cir. 1991) (overcrowding); Lyons v. Powell, 838 F.2d 28 (1st Cir. 1988) (22-23-hour confinement and placement of mattress on floor); Fredericks v. Huggins, 711 F.2d 31 (4th Cir. 1983) (policy of refusing detainees access to drugs for rehabilitation); Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) (overcrowding).
[44] *fn3 The first panel to review this case stated, "There is no record evidence, however, that [police chief] Giacomozzi or any other policymaking official of the City was aware of any sexual assaults committed either by Moore or by other jail employees . . . . Scott has failed to show that Giacomozzi or any other city officials knew of or tolerated any sexual assaults in the city jail." Scott I, at 5, 7.
[45] *fn4 Most recently, the Supreme Court has reminded us that for purposes of liability under § 1983, "'deliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of County Comm'rs v. Brown, 137 L. Ed. 2d 626, 117 S. Ct. 1382, 1391 (1997).