Scott v. Moore

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 93-8603
_______________

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.

_________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________
May 20, 1997

Before POLITZ, Chief Judge, WISDOM, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS,
Circuit Judges.

JERRY E. SMITH, Circuit Judge:

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.

We affirm the summary judgment in favor of the city, conclud-

ing that the Constitution does not require the level of staffing

Scott demands. In so doing, we employ a straightforward applica-

tion 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.

I.

Scott was arrested on December 31, 1988, for public intoxica-

tion, 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.

II.

Scott filed suit in state court against Moore and the city,

2
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).

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).

III.

A.

In Hare, we reconciled our circuit caselaw regarding pretrial

detainees, informed in particular by Farmer v. Brennan, 511 U.S.

825 (1994).1 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 “[c]onstitutional

attack[] on general conditions, practices, rules, or restrictions

1
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).

3
of pretrial confinement.” Id.

Hence, where a detainee complains of the number of bunks in a

cell or his television or mail privileges,2 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 (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.

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

2
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, 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).

4
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.

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 shiftSSan episodic event perpetrated by an actor

interposed between Scott and the city, but allegedly caused or

permitted by the aforesaid general conditions.

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.

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.

As in most cases involving incidents at jails, the defendants

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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.

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:

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 (1994)] ("It would be hard to
describe the Canton [v. Harris, 489 U.S. 378 (1989)]
understanding of deliberate indifference, permitting
liability to be premised on obviousness or constructive
notice, as anything but objective.").

Id.

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

6
constitutional rights. Id. In the instant case, Scott has met

that burden.

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).

B.

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

7
with the jail and had been trained by experienced jailers in the

official policies of jail management.

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.3

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

3
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.

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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.

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.

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.4

The summary judgment, accordingly, is AFFIRMED.

ENDRECORD

4
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, 117 S. Ct. 1382,
1391 (1997).

9
WISDOM, Circuit Judge, with whom POLITZ, Chief Judge, and WIENER

and DENNIS, Circuit Judges, join, dissenting:

In what amounts to social engineering by judicial

fiat, the panel majority has decided that as a matter

of constitutional imperative, the city must maintain a

minimum of two male guards, or at least one female

guard whenever a female detainee is present.5

New times demand new measures and new men;

The world advances, and in time outgrows

the laws which in our fathers day were best;

And, doubtless, after us, some purer scheme

Will be shaped by wiser men than we,

Made wiser by the steady growth of truth.6

Today, a majority of this court sitting en banc concluded

that the sexual assault of a pretrial detainee at the hands of an

unsupervised male guard does not justify even the development of

a record in the district court. I cannot concur in such a

5
Scott v. Moore, 85 F.3d 230, 236 (5th Cir. 1996)(Smith,
J., dissenting).
6
James Russell Lowell, “A Glance Behind the Curtain,” 1843
in Complete Poetical Works of James Russell Lowell 49, 51 (Horace
E. Scudder ed. 1925).

10
result. As I see it, the majority misconstrues the plaintiff’s

complaint and applies the wrong legal standard. Moreover, under

any appropriate legal standard, the plaintiff has raised fact

issues that warrant trial.

As stated in the panel opinion in this case, the

constitutional right at issue is Scott’s fourteenth amendment

right to minimal levels of safety and security.7 Scott complains

that the policy of having only one guard on duty in the jail did

not meet those minimal requirements. The question we remanded to

the district court, then, concerned whether the city’s policy

rose to the level of a constitutional violation. We did not

decide the issue, and thus engaged in no “social engineering”.

Rather, we concluded that this case had identified a developing

issue; the same issue that is illustrated by the explosion of

sexual harassment cases in this country,8 and by the problems

encountered in the military of late.9 The issue concerns the

realities of human nature in situations where one individual

occupies a position of substantial authority relative to another.

The situations or, more accurately, relationships are myriad:

7
Scott, 85 F.3d at 235.
8
From 1990 to 1996, the number of sexual harassment claims
filed with the Equal Employment Opportunity Commission rose 250
percent. Statistic supplied by the Equal Opportunity Commission,
Office of Public Affairs.
9
A 1990 study by the Defense Manpower Data Center, 64
percent of the females studied had been victims of sexual
harassment in the previous year. DEFENSE MANPOWER DATA CENTER,
SEXUAL HARASSMENT IN THE MILITARY: 1988 11 (1990). See also John
Lancaster, Tailhook Probe Implicates 140 Officers; Pentagon Report
Calls 90 Assaults at Navy Convention ‘Failure of Leadership’, WASH.
POST, Apr. 24, 1993, at A1.

11
supervisor to employee, military officer to soldier, guard to

pretrial detainee. Whatever the relationship, it is abundantly

clear that our society is beginning to recognize these as

potentially volatile situations.

The volatile situation in the present case becomes deeply

suspect when viewed in the light of the proper legal standards.

In Hare v. City of Corinth, we stated that, in cases involving

general conditions of confinement, the proper standard by which

to evaluate a city’s policy is whether the policy is reasonably

related to a legitimate government purpose.10 Where the conduct

in question is episodic, analysis under the deliberate

indifference standard is appropriate. The settled, long

established system for staffing a jail is clearly a condition of

confinement and not an episodic act.

Something that is episodic is, by definition, incidental or

occasional. The conduct in question here was the antithesis of

episodic; it was regular and systematic. The staffing practice

complained of had been in place for twenty years. In justifying

its application of the deliberate indifference standard, the

majority insists that the conduct complained of in this case was,

in fact, episodic: “Although the plaintiff complains generally of

inadequate staffing . . . the actual harm of which she complains

is the sexual assaults committed by Moore.” This statement,

unsupported by the record, focuses on the wrong conduct, the

wrong actor, and changes the nature of the plaintiff’s complaint

10
Hare, 74 F.3d at 643.

12
entirely. In distinguishing this case from others involving

conditions of confinement, the majority suggests that in jail

conditions cases, “the conditions themselves constitute the

harm.” In this case, this distinction is meaningless. The

majority states that the conditions themselves constitute the

harm where, for example, inadequate food or sanitary conditions

are involved. In each of these cases, however, a policy results

in a harm: inadequate food results in malnourishment; unsanitary

conditions result in disease. The instant case is no different.

The policy of inadequate staffing enabled the harm to be

committed and actually facilitated the harm -- sexual assault.11

Once the focus is shifted to the conduct actually complained of,

the long established custom of inadequate staffing, it is

apparent that such conduct was far from episodic.12 The

mischaracterization of this case as one involving an episodic act

allows the majority to assess it under the deliberate

indifference standard.13

11
Indeed, in comparing medical care with other conditions
of confinement, the Supreme Court stated that “the medical care a
prisoner receives is just as much a condition of his confinement as
the food he is fed, the clothes he is issued, the temperature he is
subjected to in his cell, and the protection he is afforded against
other inmates. Wilson v. Seiter, 501 U.S. 294, 303 (1991)
(emphasis added). If protection from other inmates is a condition
of confinement, then protection from a guard is a condition of
confinement.
12
To illustrate, the conduct in this case could be
construed as episodic if, for example, the jail had normally had
some system of supervision in place and only on this particular
occasion was a lone male guard left to supervise a female detainee
for an extended period. As stated above, this was not the case.
13
I recognize our statement in Hare that the objective
deliberate indifference test is functionally equivalent to the
(continued...)

13
 Noting that the city offered only financial justifications

for its staffing policy, the panel majority concluded that Scott

had raised a fact issue sufficient to preclude summary judgment.

We therefore remanded the case for the development of a record.

We laid down no rule regarding a required number or gender of

guards. We simply recognized the possibility that the

Constitution requires more than was provided in this case. As

the majority states, “the evidence proffered by Scott may be

construed to suggest that . . . the city lacked sufficient

prescience to anticipate that a well-trained jailer would,

without warning, assault a female detainee.” Stated another way,

the issue we identified becomes clear: perhaps the city should be

required to do more than leave a female pretrial detainee at the

absolute, unfettered, and unsupervised authority of a male guard,

regardless of how well trained he might be.

The majority opinion is, regrettably, a subterfuge to avoid

opening the floodgates of litigation. I recognize that courts

are to avoid becoming enmeshed in the minutia of prison

conditions.14 I am unwilling, however, to classify the issues in

this case as “minutia”.

Because I believe that Scott’s claim properly raised a

constitutional issue and an associated fact question, I would

remand the case to the district court. Accordingly, I

(...continued)
reasonable relationship test employed in cases involving conditions
of confinement. Hare, 74 F.3d at 643. I believe that under either
standard, however, Scott has raised a fact issue.
14
Bell v. Wolfish, 441 U.S. 520, 562 (1979).

14
respectfully dissent.

15