b. Sergeants Adams and Horton

Plaintiff does not appear to contend that Sergeants Horton and Adams had any authority to remedy the overcrowding situation at the Burlington County Jail. See Plaintiff's Brief at 25-27. Moreover, they lacked the authority to institute a classification system, even though each attempted to undertake inmate classification on an ad hoc basis. See Horton Dep. 114:9-11, 14-18; 115:7-11 (classified inmates according to nature of charges, appearance, and available space); Adams Dep. 10:17-25 (attached at Exh. D, Plaintiff's Appendix in Opposition to Jail Defendants' Motion) (inmates charged with serious crime[s] would be placed in individual cell; all others housed according to availability of space). Accordingly, I find that a jury could not determine that Sergeants Adams and Horton's belief in the lawfulness of their actions was unreasonable, at least insofar as regards plaintiff's right to be free from overcrowding and to be provided a classification system.
With respect to plaintiff's right to a safe prison environment, however, the sergeants' qualified immunity defense must fail. Both Sergeant Adams, Adams Dep. 15:21-16:8, and Sergeant Horton, Horton Dep. 167:15-168:6, had the authority to transfer inmates from the dormitory cells to the individual cells at the Burlington County Jail. Both were aware that Scott had been involved in various altercations at the jail during his time there, and both were (or reasonably should have been) aware that the overcrowded conditions at the jail and the understaffed security force made aggression among inmates all the more likely. See Adams Dep. 24:9-12, 25:2-6. Despite this knowledge, neither Adams nor Horton attempted to transfer Scott to an individual cell.FN15 Because a jury could find that the failure to do so, in light of plaintiff's clearly established right to a safe prison environment, could not reasonably have been considered lawful, summary judgment as to this claim would be inappropriate.FN16

FN15. Lightsey was told by Sergeants Adams and Horton that Scott would be transferred if he became uncontrollable. Lightsey Dep. 44:8-12. There is no further elucidation as to what more Scott would have to have done in order to have been considered uncontrollable.

FN16. Plaintiff states that Sergeants Adams and Horton had the authority to assign an officer to rove the second floor, Plaintiff's Brief at 28, but there is no documentary evidence cited to support this assertion. The Manual for the Burlington County Jail states that the sergeants had the authority to make post assignments, but it is unclear whether this gave the sergeants the authority to assign the corrections officers to any position deemed advisable for security, or whether it only gave them the authority to assign individual officers to pre-determined posts.


c. Corrections Officers

As with the sergeants, plaintiff does not argue that the corrections officers had any authority to rectify the overcrowding problem at Burlington County Jail. See Plaintiff's Brief at 23-26. The corrections officers also did not have the authority to institute a formalized classification system at the jail, for that responsibility*636 fell to Bradman and Pierce. Plaintiff argues that the officers failed to provide plaintiff with a safe prison environment by failing to recommend the transfer of Scott to an individual cell, id. at 23-25, and by failing to have at least one officer roam the second floor during mealtimes, rather than having all three serve meals together. Id. at 25-26. A jury could not properly find that the corrections officers acted unreasonably in failing to recommend Scott's transfer, when the officers, who were without the authority to effect that transfer, relayed to the sergeants (who could transfer Scott) their belief that Scott was dangerous. See, e.g., Lightsey Dep. 43:16-19. Having placed that information in the sergeants' hands, the officers could not reasonably have expected that to fail to go further and recommend Scott's transfer would subject them to personal liability. Similarly, because plaintiff has not even established that the sergeants, much less the corrections officers, had the authority to order an officer to roam the second floor, the corrections officers were under no duty to alter the regimen prescribed for them by their superiors and take it upon themselves to monitor that floor. As such, the corrections officers are entitled to judgment in their favor on the ground of qualified immunity.FN17

FN17. Plaintiff nowhere in these extensive submissions mentions, as the Third Circuit had mentioned, that plaintiff was handcuffed and shackled in the prison infirmary before being taken to the hospital. 860 F.2d at 1201. I assume, therefore, that plaintiff is not pressing any liability against the corrections officers based on these actions.


B. Section 1983 Liability-Davidson and Daniels

As an initial matter, defendants apparently do not dispute that plaintiff possessed, in October 1983, a protected liberty interest, under the Fourteenth Amendment, in being protected from an assault by a fellow prisoner. In any event, it is clear that such an interest exists. The Supreme Court has observed that prison administrators are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves, Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984), and the Third Circuit has similarly found that [b]ecause an inmate is not free to leave the confines which s/he is forced to share with the other prisoners, the state bears the responsibility for the inmate's safety. Davidson, 752 F.2d at 821. Accordingly, the Third Circuit has held that inmates enjoy a liberty interest in freedom from attack by fellow prisoners. Id. at 822. It is this interest which plaintiff is attempting to vindicate in this § 1983 action.
Defendants assert, en masse, that their actions here constitute, at worst, mere negligence, and that as such those actions cannot form the basis of a valid § 1983 claim. See Jail Defendants' Brief at 14-20; Reply Letter Brief at 2-3; Board Defendants' Brief at 14-19. In so contending, they rely upon the holdings of Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), that negligent conduct by a state official cannot result in a deprivation under the Due Process Clause of the Fourteenth Amendment. Because their conduct was no more culpable than the conduct described as negligent in Davidson, defendants argue, their conduct here cannot be actionable under § 1983. For the following reasons, I reject that argument.
The logical starting point for consideration of defendants' argument is the Supreme Court's opinion in Davidson. The facts of that case were as follows:
On December 19, 1980, petitioner was threatened by one McMillan, a fellow inmate ··· Petitioner sent a note reporting the incident that found its way to respondent Cannon, the Assistant Superintendent of the prison, who read the note and sent it on to respondent James, a Corrections Sergeant. Cannon subsequently testified that he did not view the situation as urgent because on previous occasions when petitioner had a serious problem he had contacted Cannon directly.
James received the note at about 2 p.m. on December 19, and was informed *637 of its contents. James then attended to other matters, ··· and left the note on his desk unread. By the time he left the prison that evening James had forgotten about the note ··· Petitioner took no steps other than writing the note to alert the authorities that he feared an attack···· On Sunday, December 21, McMillan attacked petitioner····
474 U.S. at 345-46, 106 S.Ct. at 669. The Supreme Court found that the type of governmental conduct at issue-respondent Cannon mistakenly believed that the situation was not particularly serious, and respondent James simply forgot about the note-was not the intentional conduct intended to be governed by the Due Process Clause. Id. at 348, 106 S.Ct. at 670. As it noted in the companion case of Daniels, the strictures of the Due Process Clause ha [ve] been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. 474 U.S. at 331, 106 S.Ct. at 665 (emphasis in original). Those deliberate decisions are not present where government officials act negligently, and § 1983 consequently affords no remedy for injuries caused by negligent acts. Davidson, 474 U.S. at 348, 106 S.Ct. at 671.
The Third Circuit has held, however, that § 1983 liability may derive from the assault of one inmate by another. Such liability would attach if the assault were shown to have resulted from intentional conduct, gross negligence or reckless indifference [on the part of state actors], or an established state procedure. Davidson, 752 F.2d at 828. As it subsequently noted, the Third Circuit ha[s] not yet had occasion to define gross negligence or distinguish it from reckless disregard or reckless indifference in the civil rights context. Colburn v. Upper Darby Township, 838 F.2d 663, 670 (3d Cir.1988). Shortly thereafter, however, the court provided an example of reckless disregard for a prisoner's safety in Frett v. Government of the Virgin Islands, 839 F.2d 968 (3d Cir.1988).
In Frett, the evidence at trial disclosed that inmate Soto had exhibited a history of violent behavior in his two years in prison, and that prison authorities were aware of this history. On the day in question, Soto struck a fellow inmate, David, over the head with a rock, in the presence of officer Smith. 839 F.2d at 972. Smith told David to report for medical treatment, and told Soto to report to his dorm to be placed in lockdown. Soto responded It's not done yet, and ran off; Smith, even though accompanied by three fellow officers, did not attempt to apprehend Soto. Id. at 973. Ten minutes later, Soto attacked David with a knife, stabbing him five times. Id. at 972. David subsequently brought suit against the Government of the Virgin Islands, alleging inter alia, a violation of his due process rights under § 1983.
In response to the government's contention on appeal that its motion for entry of judgment notwithstanding the verdict had been wrongly denied by the trial court, the Third Circuit examined whether Smith (on whose liability the government's liability rested) could have been found to have acted in reckless disregard of David's rights. In affirming the denial of the j.n.o.v. motion, the Third Circuit observed that officer Smith had witnessed the initial attack by Soto, had heard Soto's threat, and had three officers available to assist in subduing Soto. Instead of apprehending Soto, officer Smith chose not to pursue him, perhaps out of fear for his own safety. Id. at 978. The Frett court continued:
Smith's testimony evidences a knowledgeable choice of a course of action in the face of a known risk, not forgetfulness or inadvertence. That risk was of such a nature and degree that to disregard it was a gross deviation from the standard of care a corrections officer should have exercised in the situation.
Id. The jury, therefore, had sufficient evidence from which to conclude that by failing to apprehend Soto, Smith had acted in reckless disregard of David's rights.
The Supreme Court has also provided an example of what constitutes reckless disregard by a prison official for an inmate's safety. In Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), a reformatory inmate, Wade, voluntarily entered the institution's protective custody unit because of prior assaults against him by fellow*638 inmates. He was shortly thereafter transferred to administrative segregation and was placed by Smith in a cell with an inmate who had been placed in administrative segregation for fighting. Id. at 32, 103 S.Ct. at 1627. Smith, who had been on duty a few weeks earlier when an inmate had been killed in the cell, made no effort to determine if any empty cells were available. Id. Wade was assaulted by his cellmate and, at the subsequent § 1983 trial, Smith was held to have acted in reckless disregard of Wade's rights. Id. at 33, 103 S.Ct. at 1628. The Supreme Court affirmed the imposition of punitive damages on the basis of Smith's reckless conduct. Id. at 51, 103 S.Ct. at 1637; see id. at 55, 103 S.Ct. at 1639 (Smith's qualified immunity inapplicable where his actions amounted to reckless or callous indifference to the rights and safety of the prisoners in his charge); Davidson, 474 U.S. at 356, 106 S.Ct. at 675 (Blackmun, J., dissenting) (The Court has previously indicated that prison officials act recklessly when they disregard the potential for violence between a known violent inmate and a known likely victim, citing Smith v. Wade ).FN18

FN18. See alsoRestatement (Second) of Torts, § 500 (emphasis added):

The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

As noted supra, defendants argue that their actions were no more egregious than the prison officials' actions in Davidson, and, thus, that they may not be held liable under § 1983. It is clear to me, however, that these defendants-the Board, Warden Bradman, Captain Pierce, and Sergeants Adams and Horton-engaged in action that was considerably more culpable than that of the Davidson defendants. In Davidson, the officials received one note, with no indication of the seriousness of the threat and no personal follow-up by the prisoner (as was his usual practice in serious cases). One official underestimated the threat's seriousness while the other forgot about the note. 474 U.S. at 348, 106 S.Ct. at 670. Here, Bradman, Pierce, Adams, and Horton were all aware of Scott's violent propensities, as those propensities had culminated in violence on a number of occasions during Scott's time at the Burlington County Jail, and they were aware of the tendency of fights to erupt during mealtimes. All the defendants were aware of the extreme overcrowding at the jail, all were aware of the inadequate security staff, and all were aware of the lack of any classification system, all of which conditions had been characteristic of the jail for a number of years prior to October 1983. Nothing was done about these conditions, and nothing was done about the presence of Scott in an overcrowded cell overseen by insufficient security staff. Although I cannot (and need not) decide whether these circumstances amount to a reckless disregard of plaintiff's rights as envisioned by Frett and Smith, supra, these circumstances are clearly at least one step beyond the mere negligence evidenced in Davidson. Defendants' Davidson argument must be rejected.
Moreover, the Third Circuit has on a number of occasions noted that a prison official's deliberate failure to act may result in § 1983 liability. In provid[ing] examples of conduct beyond mere negligence in Davidson, the court observed that when officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such a failure would support a claim under § 1983. 752 F.2d at 828. In Colburn, a § 1983 claim was stated when it was alleged that the county prison's custom of inadequate monitoring of jail cells, in conjunction with circumstances from which defendant prison officials knew or should have known of an inmate's suicidal tendencies, resulted in the inmate's suicide. FN19 *639 838 F.2d at 670-72. Finally, in Black v. Stephens, 662 F.2d 181 (3d Cir.1981), the court held that the chief of police's inaction could support an inference that he maintained a policy of encouraging excessive force, given the chief's delay in investigating officers charged with excessive violence and his refusal to file disciplinary complaints in officers' personnel records. Id. at 189-91; FN20 see Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1188-89 (5th Cir.1986) (inadequate monitoring of suicidal detainees actionable under § 1983), cited in Colburn, 838 F.2d at 672.

FN19. The Third Circuit interpreted Colburn in Freedman v. City of Allentown, Pa., 853 F.2d 1111 (3d Cir.1988), as holding that when the factual scenario presented by plaintiff suggests that defendants should have known that the prisoner was a suicide risk, and failed to take necessary and available precautions to protect the prisoner from self-inflicted wounds, a valid § 1983 claim was stated. 853 F.2d at 1115. The Freedman court held that the facts of that case-prison officials' failure to recognize suicide hesitation cuts on an inmate's wrists-did not meet the Colburn standard. Id. at 1115-16. As my discussion infra demonstrates, that standard is met here: the evidence would permit a finding that defendants knew or should have known of Scott's violent tendencies, and of the dangers posed by overcrowding, by lack of classification, and by lack of adequate security, and yet took no action in light of that knowledge.

FN20. These cases are to be distinguished from Chinchello v. Fenton, 805 F.2d 126, 134 (3d Cir.1986), wherein the Third Circuit held that a prison supervisor's failure to train his subordinates did not subject the supervisor to liability based upon constitutional deprivations committed by the subordinates, absent a pattern of such deprivations. See Colburn, 838 F.2d at 672. Here, Bradman and Pierce are not being held accountable for their subordinates' actions; rather, plaintiff seeks to call them to account for their own alleged deliberate decision to not rectify the situation at Burlington County Jail. Accordingly, Bradman and Pierce's contention that Chinchello affords them relief, see Jail Defendants' Reply Letter Brief at 4, must be rejected.

The evidence in the record before me would clearly enable a jury to find that the remaining defendants' failure to act, in light of their knowledge of the conditions at the Burlington County Jail and (excluding the Board) their knowledge of Scott's dangerousness, was sufficiently deliberate to implicate the Due Process Clause and support a § 1983 claim. The Board made deliberate decisions not to pay for immediate renovation of the jail, but instead to build a new facility at a later date; not to accept state aid, in the form of the county assistance plan or the pre-fabricated prison units; not to accede to Warden Bradman's repeated requests for additional security staff; and not to insist on a classification system at the jail, knowing that such a system was mandated by Vespa. Warden Bradman made a deliberate decision not to accept state aid, and he and Captain Pierce made deliberate decisions not to put in place any classification system; not to transfer Scott, whom they knew to be dangerous, to an individual cell or to a state institution; and not to assign a corrections officer to monitor the second floor. Sergeants Adams and Horton made a deliberate decision not to transfer Scott, about whose violent tendencies they had been warned by the corrections officers, to an individual cell. These defendants could be found to have deliberately failed to act in the presence of conditions that they knew or should have known posed a great risk of injury to inmates at the Burlington County Jail. In the event a jury made such a finding, a § 1983 claim would properly lie against these defendants.

C. Legislative Immunity

The Board defendants contend that their decision to operate the existing Burlington County Jail while building a new one and their decision to not pay for additional security officers were legislative acts and, thus, that they are entitled to absolute immunity for any liability arising from those decisions. Because plaintiff would not have been injured had the Board decided to renovate rather than build or decided to hire additional staff, the argument continues, the Board members must be granted absolute legislative immunity. Board Defendants' Brief at 34-38; Reply Letter Brief at 6-9. For the following reasons, I reject that argument.
The Third Circuit has acknowledged that the doctrine of absolute legislative immunity, as first articulated in *640 Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), applies to the legislative acts of municipal governing bodies. Aitchison v. Raffiani, 708 F.2d 96, 98-100 (3d Cir.1983). In order for legislative immunity to attach, the defendant seeking immunity must demonstrate both that the challenged functions performed by that defendant were legislative, rather than managerial, in nature, and that the functions were carried out pursuant to the prescribed statutory procedures governing legislative enactments. Abraham v. Pekarski, 728 F.2d 167, 174 (3d Cir.1984). In other words, the action of a defendant must be both substantively and procedurally legislative.
As an initial matter, I harbor strong doubts that the decisions by the Board to build a new jail and to refuse to hire additional jail staff could be considered legislative in nature. The Third Circuit, in Rogin v. Bensalem Township, 616 F.2d 680, 693 (3d Cir.1980), observed that legislative acts apply generally to the community whereas administrative acts apply to one or a few individuals. See Reply Letter Brief at 7. The decisions as to the Burlington County Jail directly affected only those relatively few inmates residing there, rather than affecting the whole of Burlington County. Moreover, the Board's argument that its decisions not to spend involved the budget-making process, a quintessentially legislative function, see id. at 8-9, proves too much. Under that theory, the Board could have chosen, on the basis of the cost involved, simply not to spend any money on altering the old jail or building a new one, and would be immunized from any liability because the decision to do nothing was part of the budget process. If the Board's argument requires that result, that argument must be rejected.
In any event, the Board's decision not to expend the money required to renovate or staff the Burlington County Jail was not reached in a legislative manner. In Abraham, the Third Circuit held that the municipal board's decision to discharge a township director was not a legislative act, because in making the decision the board did not follow the procedural rules prescribed by Pennsylvania statute for legislative enactments by municipal boards. 728 F.2d at 174-75; see Donivan v. Dallastown Borough, 835 F.2d 486, 489 (3d Cir.1987) (where statute requires legislative act to be passed by ordinance, decision reached by vote was per se not legislative). The relevant New Jersey statute states that [t]he legislative power of the county shall be vested in the board of chosen freeholders, and, with the exception of particular powers not at issue here, [s]uch legislative power shall be exercised by ordinance. N.J.S.A. 40:41A-38.
The Board points to no ordinance regarding the renovation or operation of the Burlington County Jail, nor even a resolution regarding those issues. The only relevant document before me is an amended settlement agreement in the Vespa litigation, dated June 20, 1984 (some eight months after plaintiff's injury), providing that the parties agree that the Board may replace the Burlington County Jail instead of renovating it. Knox Aff., Exh. N. There is no resolution or ordinance referenced therein; it is merely stated that the Board has determined that it is in the best interest of Burlington County to construct a new jail facility. Id. On this showing, no legislative act has been demonstrated by the Board defendants, and no legislative immunity attaches to the Board's actions herein. The Board's motion is therefore denied.
For the foregoing reasons, the motions for summary judgment brought by the Board defendants and by the Jail defendants are denied, except that the summary judgment motion of the corrections officers is granted on the ground of qualified immunity. An appropriate order will issue.
D.N.J.,1989.
Ryan v. Burlington County, N.J.
708 F.Supp. 623