United States Court of Appeals,
Eleventh Circuit.
No. 94-8481.
Pamela D. YOUNG, Plaintiff-Appellant,
v.
AUGUSTA, GEORGIA, CITY OF, Through its Mayor Charles DeVANEY, in
his official capacity, and its council members, et al., Defendants-
Appellees.
July 28, 1995.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CV191-215), Dudley H. Bowen, Jr., Judge.
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.
HENDERSON, Senior Circuit Judge:
Pamela D. Young appeals from the judgment entered in the
United States District Court for the Southern District of Georgia
granting the motion for summary judgment filed by the City of
Augusta, Georgia (the City) in her 42 U.S.C. § 1983 municipal
liability action and dismissing her pendent state law claims.1
*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
1
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
..., subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress.
A local city government is a "person" that can be sued
within the meaning of § 1983. Monell v. Department of
Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56
L.Ed.2d 611, 635 (1978).
After a review of the record, we conclude that genuine issues of
material fact remain in the case. We therefore reverse and remand
for further proceedings.
I. BACKGROUND
In July 1989, Young, who was eighteen years old at the time
and afflicted with a manic-depressive disorder,2 was arrested for
stealing a package of cigarettes at a local grocery store. She was
thereafter found guilty of misdemeanor theft and was sentenced to
pay a $500.00 fine or to serve ninety days in the City jail.
Unable to pay the fine, Young was faced with service of the jail
sentence. Prior to being transported to the jail, she was placed
in a holding cell adjacent to the courtroom, where she removed her
underwear and shoes and set them on fire. This led to another
charge for destruction of City property as a result of the damage
to the cell. The next day, she pleaded guilty to that offense and
was again sentenced to a $500.00 fine or ninety days in jail.
Young filed this action on October 10, 1991, alleging, inter
alia, that, during her imprisonment, jail officials were
deliberately indifferent to her serious medical needs in violation
of the Eighth Amendment to the United States Constitution, giving
rise to a cause of action under the authority of § 1983.3 She also
2
Manic-depression is an affective psychosis characterized by
extreme and pathological elation alternating with severe
dejection. 8 McGraw-Hill Encyclopedia of Science & Technology
114 (5th ed. 1982).
3
The complaint also invoked the First, Fifth and Fourteenth
Amendments as providing grounds for relief, as well as 42 U.S.C.
§ 1985(3), which prohibits conspiracies to deprive persons of
their civil rights. The only cognizable federal cause of action
implicated by the allegations of the complaint, however, is one
under § 1983 for possible violations of the Eighth Amendment,
contended that her treatment at the jail ran afoul of Georgia law.
Young sought damages, attorneys fees and unspecified injunctive
relief. The complaint named as defendants the City, through its
Mayor and City Council members, the Chief of Police, Freddie Lott,
and Bobbie Jean Gentle, a guard at the jail. Because Young failed
to serve Lott and Gentle with process, they were never made parties
to the lawsuit. Consequently, this appeal is confined to only
those allegations of the complaint as they relate to the liability
of the City.
The evidence gleaned from the record construed in the light
most favorable to Young4 discloses that her father informed "one or
more persons associated with the Augusta judicial system" that she
was manic-depressive and requested that she be allowed to serve any
jail time imposed at the Georgia Regional Hospital at Augusta.
("Georgia Regional") (R1-5 at 1). Instead, on August 15, 1989, she
was taken to the City jail. Although Young had been treated for
psychiatric and behavior problems during various periods since she
was fourteen years old, at the time of her arrest and initial
incarceration she was not being treated by a doctor and was not
taking medication.
Young's stay at the jail apparently was uneventful until
September 6, when she was transported to the University Hospital
made applicable to the states through the Fourteenth Amendment.
4
Because this case involves the grant of summary judgment,
we view the evidence and all inferences arising therefrom in the
light most favorable to the nonmoving party. James v. City of
St. Petersburg, Fla., 33 F.3d 1304, 1306 (11th Cir.1994) (en
banc).
emergency room because of complaints of abdominal pain.5 On
September 11, she was returned to the emergency room because of
violent behavior. She was subsequently transferred to Georgia
Regional for a psychiatric evaluation, where it was determined that
she would not pose a danger to herself or others if she were
returned to the jail. However, by September 13, Young was in an
overtly psychotic state and in need of hospitalization. She was
admitted that day to Georgia Regional and psychotropic medication
was prescribed for her. She was released to the jail on September
21, with a warning that she might continue to act out or make
suicidal statements. A letter written by Eloise Hayes, D.O.,
advised that Young was manipulative and could pose a danger to
herself. The letter instructed that if she engaged in such
behavior, she should be placed in a stripped cell. On October 1,
Young was examined at the emergency room again for possible lithium
toxicity.6 Upon her release, jail officials were instructed to
withhold the drug until they were advised of test results. The
record does not contain evidence of those results or show whether
5
In its motion for summary judgment, The City claimed that
prior to this emergency room visit, Young underwent a psychiatric
evaluation pursuant to a court order. It produced a copy of the
court's order dated August 23, 1989 in support of this statement,
but failed to offer any evidence showing that Young was actually
checked by a medical professional or the results of the alleged
examination. The City also contended Young received medical
treatment on September 7, 1989, but again, there is no proof of
this allegation in the record.
6
Lithium is a drug prescribed during manic episodes of
manic-depressive illness. Physician's Desk Reference 2304 (47th
ed. 1993).
they were passed on to jail officials.7
On October 3, Young told a guard she was hearing voices. In
response to this information, she was placed in an isolation cell,
which she attempted to flood, thereby wetting her clothes. She was
then stripped naked and chained to the metal bed, which contained
no mattress. She was shackled in such a way that she could not
reach the toilet and was forced to eliminate her bodily wastes
where she sat on the floor. When a meal was served, she threw it
against the wall. While in isolation, Young, in a delusional
state, repeatedly banged on the door, which resulted in her being
8
sprayed with mace by both male and female guards. She was
confined in this manner, naked and chained to the bed amid filth
and excrement and subjected to macings until October 6, when she
was provided with clothes, allowed to take a shower and her cell
was finally cleaned by another inmate. The next day she was taken
to the Augusta Area Mental Health Clinic and then to Georgia
Regional Hospital, where she was treated for her mental disorder
with shots and medication. She was returned to the jail on October
10, but continued to receive psychotropic medication.9
7
Handwritten activity notes show that Young was examined
also at the Augusta Area Mental Health Clinic on October 2, 16
and 20. What, if any, treatment she received is not discernible
from the notes.
8
Young also testified that she was maced by guards on
various other occasions while being escorted to and from the
shower.
9
Young's claim regarding the course of medication she
received during her imprisonment is somewhat vague and
conflicting. In her answers to interrogatories, she states that
she received no medicine between August 16 and September 30.
(R1-5, Answer to Interrogatory 1, ¶ 6). She also admits,
however, and the record shows, that she was medicated as an
Nevertheless, on November 3, she informed a guard that she again
was hearing voices. As before, she was placed in an isolation
cell, which she proceeded to flood and which resulted in her being
handcuffed to the bed. A short time later, she engaged in a verbal
altercation with one of the guards, Bobbie Jean Gentle. The
confrontation escalated into a physical assault during which Gentle
struck Young in the eye with her fist. Gentle continued to beat
Young, who was still shackled to the bed, until other jailers
intervened. Later that day Young was again taken to the Augusta
Area Mental Health Clinic and then to Georgia Regional, where she
was admitted for treatment. She remained there until November 17,
when she was released to her family.
In her charges of municipal liability, Young alleges that the
City failed to adequately select or train jail personnel to deal
with inmates suffering from mental illness, or to provide on-site
medical treatment. Because of these deficiencies, she contends,
treatment for her psychiatric condition was delayed until it
reached emergency proportions. Although not alleged directly,
inpatient at Georgia Regional from September 13 through September
21. (R1-29, Answer to Interrogatory 24; R1-19, Exhibits D-1 and
D-2). She contends that after medications were prescribed for
her, "the City did not give them at prescribed times. They were
only given at medication time[,]" (R1-29, Answer to Interrogatory
24), and that, after her release from the hospital on September
21, she was "given medications, perhaps not as scheduled ...
until they ran out on approximately October 2, 1989, after which
time [the] receipt of medication was even more sporadic[,]" (R1-
29, Answer to Interrogatory 1, ¶ 17). She states in her
complaint and in answers to interrogatories that between October
10 and November 2 "she was given medication every day, three
times a day, Haladol and Lithium." (R1-3, Complaint at ¶ 30;
R1-5, Answer to Interrogatory 1, § 9). We can only construe
these statements as meaning that there were periods of time
during her imprisonment when jail officials failed to dispense
her medicines as prescribed.
implicit in the complaint also is the claim that the brutality to
which she was subjected in the isolation cell from October 3
through October 6, the macings and the beating she received from
Gentle, were the result of inadequate training of jail personnel.
The City moved for summary judgment urging that (1) the
portions of the complaint concerning events occurring between
August 15, 1989 and October 10, 1989 were barred by the statute of
limitations; (2) the state law claims were foreclosed because of
Young's failure to provide the notice required by O.C.G.A. § 36-33-
5 (mandating that notice of claims against municipal corporations
be presented to the municipality for possible settlement within six
months of the alleged wrongful conduct); and (3) her damages were
not caused by a custom, practice or policy of the City. In support
of the motion, the City submitted the affidavit of Lena J. Bonner,
the custodian of the records of the City Council, who stated that
no evidence existed to show that Young had served the City with the
aforementioned notice required by Georgia law. In addition, the
City proffered the affidavit of M. James Cullinan, identified as
"the official in charge of the City of Augusta Jail." (R1-19 at ¶
2). Cullinan attested, inter alia, as follows:
3. At all relevant times the City of Augusta Jail
employed a nurse who was charged with treating minor medical
problems and directing non-minor problems to the appropriate
medical facility and personnel.
4. According to the policy and procedures of the City
Jail, medical attention is available at all times when
emergencies occur. Emergencies are defined as medical
conditions which appear to require immediate attention and are
not limited to severe or life threatening conditions. Inmates
in need of care are immediately transported to University
Hospital and its clinics.
5. The staff at the City Jail is and has been at all
pertinent times instructed and trained to respond promptly to
any report of a medical need by an inmate and further trained
that when in doubt, the inmate must be transported to the
hospital. It is and has been at all relevant time [sic] the
practice of the City jail to consistently provide prompt and
adequate medical care to the inmates.
6. The staff of the City Jail not only receives initial
training pertaining to medical needs of inmates at the time of
employment but they also receive continuing education and
training of at least four hours per month with regard to such
matters.[ ]
7. Such training specifically emphasizes the necessity
for all City Jail personnel to be alert to inmates' medical
needs and to respond to medical needs by providing prompt
care.
8. At all relevant times, City Jail personnel have also
been trained to be aware of inmates' psychiatric needs. They
are trained to observe the inmates' behavior and to report
unusual behavior to the nurse, University Hospital physicians
and to personnel at the Augusta Area Mental Health Clinic.
Observations and reports are according to national guidelines
which are contained in a standard form.
9. During the time period referred to in Plaintiff's
Complaint, City Jail personnel were trained and had been
trained to follow orders and directions from physicians and
psychologists and to transport inmates to the appropriate
facility for psychiatric treatment or observation as
necessary.
10. During said time period, City Jail personnel were
trained and had been trained to detect potential suicidal
behavior and take immediate action.
11. Procedures have been in place at all pertinent times
to provide medication to inmates pursuant to physicians'
orders to ensure that inmates take them as prescribed
regardless of whether such medication was prescribed prior to
their incarceration or during their stay at the City Jail.
....
26. On each and every occasion when Plaintiff acted out
or otherwise appeared to require medical care either (physical
or mental) Plaintiff was promptly delivered to the appropriate
medical authority.
27. Jail personnel followed orders and recommendations of
medical authorities at all times.
(R1-19 at WW 3-11, 26-27). Cullinan also asserted that it is
against jail policy to keep an inmate naked for longer than it
takes to provide dry clothes and to use mace, except when needed to
prevent injury by an out-of-control prisoner. (Id. at WW 21-22).
Cullinan stated further that he immediately terminated Gentle's
employment when he learned of her fracas with Young. ( Id. at ¶
25). Portions of the record of Young's medical treatment, jail
medication charts and excerpts from testimony she gave during a
deposition were also submitted as evidence in support of the City's
motion for summary judgment. In its brief to the district court,
the City argued that, assuming, without conceding, that Young's
constitutional rights were violated by jail employees, such conduct
was in contravention of, rather than caused by, City policy.10
In opposition to the motion for summary judgment, Young filed
a brief in which she purported to incorporate arguments made by the
plaintiff in another case pending in the same district court,
Arnold v. City of Augusta, Ga., Civil Action No. CV 191-177, in
response to the City's motion for summary judgment filed in that
case.11 Young also cited to her answers to interrogatories and her
10
An officially promulgated written policy concerning inmate
medical care and personnel training, if one exists, was not made
a part of the record.
11
Young's attorney, John P. Batson, also represents the
plaintiff in Arnold, who was incarcerated at the City jail during
approximately the same time period as Young. Like Young, Arnold
contends that, because of a City policy or practice, jail
officials were deliberately indifferent to his serious mental
health needs. We take judicial notice of the fact that the
district court denied the City's motion for summary judgment
filed in Arnold. See United States v. Jones, 29 F.3d 1549, 1553
(11th Cir.1994) (a court may take notice of another court's order
for the limited purpose of recognizing the judicial action taken
or the subject matter of the litigation). It thereafter ordered
that the case be closed for statistical purposes pending the
outcome of the present appeal.
entire deposition testimony as evidence in opposition to the motion
for summary judgment. In addition, she contended that the statute
of limitations for filing the action was tolled for fifty-seven
days during periods when she was hospitalized in 1991 and submitted
her affidavit and that of her attorney in support, as well as
portions of her medical record. Finally, she requested that she be
allowed to "subpoena witnesses and cross-examine them for purposes
of responding to the Motion for Summary Judgment should there be
any doubt as to the existence of material facts in dispute." (R1-
20, ¶ 3). In a separate motion for a hearing she stated that she
could not "afford other processes of discovery by which to respond
to the Defendants' Motion for Summary Judgment."12 (R1-23).
In ruling on Young's motion for a hearing the magistrate
judge to whom certain pretrial matters were assigned, see 28 U.S.C.
§ 636(b)(1)(A),13 acknowledged that oral testimony at the summary
judgment stage may be warranted in some limited circumstances. He
found this unusual step to be unnecessary in the present case,
however. The magistrate noted that Young had personal knowledge of
her treatment at the jail and thus, could oppose the City's motion
by way of her own affidavit without incurring the expense of
deposing the City's witnesses. He therefore denied the motion for
a hearing to elicit oral testimony and advised Young to submit an
12
Young filed this action in forma pauperis.
13
Section 636(b)(1)(A) permits a district court judge to
designate a magistrate to determine any pending pretrial matter,
except certain enumerated types of motions, including motions for
summary judgment. Because the motion for a hearing to present
oral testimony was not dispositive of the motion for summary
judgment, the court acted within its authority in delegating this
request to the magistrate.
affidavit containing factual information known to her for the
district court's consideration. He also instructed Young to
request a hearing to present oral argument if necessary.
Young did not submit an affidavit, nor did she move for oral
argument. Instead, she asked the court to appoint an expert, as
authorized by Fed.R.Evid. 706, to assist it in its determination of
the motion for summary judgment. In a brief in support thereof,
she urged that the testimony of a psychiatric expert was necessary
to prove that the medical treatment afforded to her by jail
personnel was deliberately indifferent. In addition, she asked the
court to consolidate her case with the Arnold case, as permitted by
Fed.R.Civ.P. 42(a), on the ground that the actions involved common
issues of law and fact. The magistrate judge denied both of
Young's motions, after which, she offered nothing further in
opposition to the City's motion for summary judgment.
In ruling on the motion for summary judgment, the district
court found that Cullinan's affidavit was sufficient to rebut
Young's contention that a City policy or procedure caused her
damages. The court additionally found that the affidavits
concerning the statute of limitations, which Young submitted in
opposition to the City's motion, did not contradict any of
Cullinan's averments regarding the jail's policy with respect to
inmates' medical care. The court consequently held that the City
was entitled to judgment as a matter of law on the § 1983 cause of
action. In view of this disposition, the court declined to address
the statute of limitations issue. Nor did the court reach the
City's argument that the state law claims were barred under
O.C.G.A. § 36-33-5. Instead, it opted to dismiss them in view of
the dismissal of the federal claims. See 28 U.S.C. § 1367(c)(3)
(district court may decline to exercise supplemental jurisdiction
where all claims over which it had original jurisdiction have been
dismissed).14
On appeal, Young maintains it was error to deny her motions
for appointment of a mental health expert, for a hearing to present
oral testimony and to consolidate her case with Arnold. To
facilitate a determination of whether the magistrate judge abused
his discretion by denying the motion to consolidate, Young requests
that we supplement the record on appeal with the record in the
Arnold litigation. Young also challenges the district court's
finding that Cullinan's affidavit was sufficient to carry the
City's burden of proof.15
II. DISCUSSION
A. Motion to supplement the record on appeal.
Young's motion to supplement the record on appeal was carried
with the case and therefore requires our initial attention.
Generally, a reviewing court will not consult the evidence or
14
Because no findings were made by the district court on the
viability of the statute of limitations or state law notice
defenses, we confine our inquiry to the question of whether the
record contains a genuine issue of material fact with respect to
§ 1983 municipal liability.
15
Young complains that the district court failed to evaluate
all of the evidence of record, including her answers to
interrogatories and deposition testimony. Although the district
court did not refer to this evidence in its order granting
summary judgment to the City, we cannot say that the court failed
to consider it. In light of our duty to conduct a plenary review
of the grant of summary judgment, we have taken this evidence
into account.
record of another case if it was not first considered in the
district court, although it has that power. See Jones v. White,
992 F.2d 1548, 1566-68 (11th Cir.) (invoking the court's inherent
equitable powers to supplement the record on appeal), cert. denied,
--- U.S. ----, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993), and --- U.S.
----, 114 S.Ct. 727, 126 L.Ed.2d 691 (1994). This court has not
articulated a particular test to make that determination. Rather,
we review such requests on a case-by-case basis. Cabalceta v.
Standard Fruit Co., 883 F.2d 1553, 1555 (11th Cir.1989); Ross v.
Kemp, 785 F.2d 1467, 1474 (11th Cir.1986). Factors we have
considered in deciding to grant a motion to supplement include
whether the additional material would be dispositive of pending
issues in the case and whether interests of justice and judicial
economy would thereby be served. Ross, 785 F.2d at 1475. However,
these are only guidelines for exercising our discretion. Even when
the added material will not conclusively resolve an issue on
appeal, we may allow supplementation in the aid of making an
informed decision. Cabalceta, 883 F.2d at 1555.
With these considerations in mind, we grant Young's motion to
supplement the record on appeal, in part. Young's proffer of
certain portions of the record in Arnold was accompanied by a
proper motion to supplement, which has not been opposed by the
City. Furthermore, we cannot effectively review Young's assertion
that this case should have been consolidated with Arnold without
looking to certain pleadings in that case. We find it unnecessary,
however, to supplement the record on appeal with the entire record
of Arnold. Instead, it is sufficient for our purposes to
incorporate only the complaint and Arnold's affidavit filed in that
case, which elaborates on the allegations of the degree of care
prevalent in the jail at the time both he and Young were
incarcerated.
B. Motion to consolidate.
Federal Rule of Civil Procedure 42(a) codifies a district
court's "inherent managerial power " "to control the disposition of
the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants." ' " Hendrix v. Raybestos-
Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir.1985) (citations
omitted). It provides:
(a) Consolidation. When actions involving a common
question of law or fact are pending before the court, it may
order a joint hearing or trial of any or all the matters in
issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or
delay.
The Rule " "is permissive and vests a purely discretionary power in
the district court.' " In re Air Crash Disaster at Florida
Everglades, 549 F.2d 1006, 1013 (5th Cir.1977) (citations
omitted)16; Hendrix, 776 F.2d at 1495; see also 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 2383,
at 439-40 (1994) (although consolidation under Rule 42(a) may be
warranted because of a common issue of law or fact, it is not
required).
In denying Young's motion for consolidation, the magistrate
16
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209
(11th Cir.1981) (en banc), this court adopted as precedent all
decisions of the former United States Court of Appeals for the
Fifth Circuit rendered prior to October 1, 1981.
judge found there were no common issues of law or fact in her case
and the one prosecuted by Arnold. We disagree with this
assessment. Granted, differences in the two actions do exist.
Each plaintiff has alleged a different set of facts concerning his
or her particular medical needs and the responses made by jail
employees. Furthermore, Arnold appears to be in a stronger
position than Young to prove the threshold issue of whether there
was an Eighth Amendment violation with respect to his medical
care.17 See City of Oklahoma City v. Tuttle, 471 U.S. 808, 816-17
& n. 4, 105 S.Ct. 2427, 2432 & n. 4, 85 L.Ed.2d 791, 799-800 & n.
4 (1985) (for § 1983 municipal liability to attach, there must
first be established an underlying violation of a federal right).
Nevertheless, both actions allege that jail officials were
deliberately indifferent to the psychiatric treatment needs of the
plaintiffs during their imprisonment, due to a City custom,
17
An element of both actions is that prison officials were
deliberately indifferent to the plaintiffs' medical needs. See
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50
L.Ed.2d 251, 260 (1976). As we discuss more fully in Part E of
this section of the opinion, although Young's allegations do not
present as clear-cut a case of deliberate indifference, a genuine
issue of material fact does exist as to whether treatment for her
mental condition was unduly delayed. Furthermore, the evidence
submitted by the City fails to demonstrate that the psychotropic
drugs prescribed for her were dispensed by jail employees as
directed. The Eighth Amendment prohibits state caretakers from
intentionally delaying medical care or knowingly interfering with
treatment once prescribed. Id. at 104-05, 97 S.Ct. at 291, 50
L.Ed.2d at 260; see also Aldridge v. Montgomery, 753 F.2d 970,
972 (11th Cir.1985). In addition, Young's allegations regarding
the beating by Gentle and the conditions to which she was
subjected in the isolation cell from October 3, 1989 through
October 6, 1989, which stand unrebutted by the City, could
possibly, if proven, support § 1983 claims for cruel and unusual
punishment. Young consequently passed the first hurdle of
precluding summary judgment by sufficiently demonstrating that
her rights may have been violated.
practice or policy. The core issue of liability, that is, whether
the City can be held accountable for the alleged deprivations
suffered by the plaintiffs, is the same in both cases. The
district court apparently recognized this overlap when it ordered
that Arnold be stayed pending the outcome of the present appeal.
See supra note 11.
District court judges in this circuit "have been "urged to
make good use of Rule 42(a) ... in order to expedite the trial and
eliminate unnecessary repetition and confusion[.]' " Gentry v.
Smith, 487 F.2d 571, 581 (5th Cir.1973) (quoting Dupont v. Southern
Pacific Co., 366 F.2d 193, 195 (5th Cir.1966), cert. denied, 386
U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967)). Consolidation of
the present case with Arnold certainly would have made sense.
Counsel for the parties is the same in both cases. The actions
were filed approximately one month apart, both were assigned to the
same district court judge and they have followed a similar course
of development. In both actions, the plaintiffs will have to prove
that a City custom, practice or policy regarding the medical care
of mentally ill inmates caused their damages. This necessarily
will mandate proof that the alleged violations were not isolated
instances. See City of Oklahoma City, 471 U.S. at 821-24, 105
S.Ct. at 2435-36, 85 L.Ed.2d at 802-04. Thus, it is important to
each plaintiff's case to introduce evidence of the others'
allegations. On the other hand, the establishment of their claims
can be accomplished without consolidating the cases.
Even though consolidation would have been warranted, given
the permissive nature of Rule 42(a), we cannot conclude that the
magistrate abused his discretion by denying Young's request.
Decisions to consolidate have been reversed in cases where a party
was prejudiced because his substantive legal interests conflicted
with those of a co-party. See In re Air Crash Disaster, 549 F.2d
at 1013 n. 10. We have found no cases, however, in which a court's
refusal to order consolidation has been overturned. Of course,
there is nothing to prevent the district court from reconsidering
Young's motion upon remand if it is renewed in light of the
foregoing discussion. We also observe that, absent consolidation,
Young is not precluded from offering evidence of Arnold's claim to
support her allegations of an unconstitutional policy or practice.
C. Motion for appointment of a mental health expert.
Under Fed.R.Evid. 706(a), a trial court may, on its own
motion or on the motion of a party, appoint an expert witness
selected by the parties or of its own choosing. The Rule provides
that, in civil actions not involving just compensation under the
Fifth Amendment, an expert so appointed "shall be paid by the
parties in such proportion and at such time as the court directs,
and thereafter charged in like manner as other costs." Fed.R.Evid.
706(b).18 Young sought to have an expert appointed without cost to
her, to aid her in opposing the City's motion for summary
judgment—specifically, to show that the psychiatric care she
received was substandard. Due to Young's indigent status, the
appointment of an expert in this case would have necessarily
required the court to apportion all of the cost to the City. This
18
In just compensation cases and in prosecutions involving
indigent criminal defendants, expert witness fees may be paid
with funds provided by law. Fed.R.Evid. 706(b).
court has never held whether, or under what circumstances, such an
arrangement might be allowable and we need not do so now.19 The
presence of a genuine issue of fact with respect to deliberate
indifference to Young's medical needs is apparent from the face of
the record. See supra note 17. Expert opinion testimony would
have been superfluous. The court's refusal to appoint an expert
was not error.20
D. Motion for a hearing to present oral testimony.
This court's predecessor has recognized that Fed.R.Civ.P.
43(e), governing evidence on motions, permits a district court to
consider oral testimony in connection with a motion for summary
judgment. See Hayden v. First Nat'l Bank of Mt. Pleasant, Tex.,
595 F.2d 994, 997 (5th Cir.1979). This method of pinpointing
factual disputes is not favored, however, "because the summary
judgment hearing is not meant to be a preliminary trial....
Accordingly, oral testimony should be used [only] when there is
reason to believe that it will be of significant assistance to the
court and is reasonably circumscribed in scope." 10A Charles A.
Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and
Procedure § 2723, at 63 (1983) (footnotes omitted) (alteration
added).
Young desired to present oral testimony for the same reason
19
The Ninth Circuit held in McKinney v. Anderson, 924 F.2d
1500 (9th Cir.), vacated on other grounds, 502 U.S. 903, 112
S.Ct. 291, 116 L.Ed.2d 236 (1991), that the Rule permits a
district court to apportion all of the cost to one side in an
appropriate case. Id. at 1511.
20
We express no opinion as to whether the appointment of an
expert might be warranted should this case proceed to trial.
she sought an expert—to expose factual issues concerning the
sufficiency her medical treatment. As we have already pointed out,
she accomplished this feat without a hearing. We therefore affirm
the denial of her request.
E. Motion for summary judgment.
We review the grant or denial of a motion for summary
judgment de novo, applying the same legal standards employed by the
district court. Parks v. City of Warner Robins, Ga., 43 F.3d 609,
612-13 (11th Cir.1995). Summary judgment must be granted "if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a case such as this, where the nonmoving party will bear the
burden of proof at trial, "the moving party, in order to prevail,
must do one of two things: show that the non-moving party has no
evidence to support [an essential element of] its case, or present
"affirmative evidence demonstrating that the nonmoving party will
be unable to prove its case at trial.' " Hammer v. Slater, 20 F.3d
1137, 1141 (11th Cir.1994) (quoting United States v. Four Parcels
of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc)).
Only then does the burden shift to the nonmoving party to
designate, through affidavits or as otherwise provided in
Fed.R.Civ.P. 56, "specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e).
As stated earlier, to prevail, Young must be able to prove
that the conditions of her confinement violated constitutional
mandates. She contends that treatment for her mental condition was
unduly delayed, that she did not receive medication as prescribed
and that the events she endured in the isolation cell fell below
standards of human decency. These allegations, if proven and
supported by the requisite evidence of intent, could lead to a
finding that her rights were violated.
Although the record shows that Young received some treatment
for mental illness at various times during her imprisonment and
that medication was furnished on certain occasions, it does not
demonstrate the absence of a factual dispute with respect to undue
delay or that medication was dispensed by jail employees as
prescribed. The City asserted in its statement of undisputed facts
in support of the motion for summary judgment that Young "was
regularly given her medications as prescribed by medical personnel
by the staff of the City of Augusta Jail." (R1-16, ¶ 6). In
addition, the City's affiant, Cullinan, stated that "[a]t all times
when Plaintiff was placed on medication, jail personnel ensured and
monitored Plaintiff's taking the medication." (R1-19, ¶ 16). The
documentation proffered by the City to support these assertions,
however, is rife with gaps. The jail medication charts pertain to
only one day of Young's incarceration in September and an
unidentified day or days in October. Moreover, it cannot be
discerned from the charts whether the medicine dispensed on those
days was given as directed, or, if there were other medications
Young should have received. Much of the medical record submitted
by the City, which presumably contains the information concerning
the prescribed treatment, is handwritten and replete with medical
abbreviations, making it indecipherable. No summaries interpreting
this evidence or affidavits of the persons in charge of Young's
medical care at the various treatment centers or the jail were
provided. Furthermore, the City proffered no evidence to rebut
21
Young's claims of inhumane treatment while in isolation.
Accordingly, if this action had been filed against the individual
jailers responsible for Young's care, summary judgment plainly
would not have been warranted.
Because this case is confined to municipal liability rather
than individual fault, however, Young must also be able to
demonstrate a direct causal link between a City policy or custom
and the alleged constitutional deprivations. City of Canton, Ohio
v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d
412, 424 (1989). It has long been settled that respondeat superior
principles of liability do not apply to municipalities in § 1983
actions. See Monell v. Department of Social Servs., 436 U.S. 658,
691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611, 636 (1978). Liability
will attach only where a government custom or policy is " "the
moving force of the constitutional violation.' " City of Oklahoma
City, 471 U.S. at 820, 105 S.Ct. at 2434, 85 L.Ed.2d at 802
(quoting Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445,
454, 70 L.Ed.2d 509, 521 (1981), and Monell, 436 U.S. at 694, 98
S.Ct. at 2038, 56 L.Ed.2d at 638).
Young attributes her alleged damages to a City custom of
inadequate selection and training of employees when it comes to
21
Although the City contended that the conditions of which
Young complained were contrary to jail policy, it did not dispute
the truth of her allegations.
inmates suffering from mental illness and of failing to provide
on-site medical care at the jail. We reject, as a matter of law,
her contention that municipal jails should be equipped to offer
on-site, expert psychiatric care for inmates. The City's stated
policy of transporting prisoners to local hospitals when they are
in need of medical attention not available at the jail is
compatible "with "the evolving standards of decency that mark the
progress of a maturing society.' " Estelle, 429 U.S. at 102, 97
S.Ct. at 290, 50 L.Ed.2d at 259 (quoting Trop v. Dulles, 356 U.S.
86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642 (1958)); see City
of Canton, Ohio, 489 U.S. at 386-87, 109 S.Ct. at 1203-04, 103
L.Ed.2d at 425 (policy requiring jailers to take inmates needing
medical care to a hospital for treatment is constitutional on its
face). Young's claim that jail employees are inadequately selected
or trained to recognize the need to remove a mentally ill inmate to
a hospital or to dispense medication as prescribed is cognizable,
however, if the deficiency reflects deliberate indifference by City
policymakers to the rights of inmates and it is closely related to
the ultimate injury. City of Canton, Ohio, 489 U.S. at 388-92, 109
S.Ct. at 1204-06, 103 L.Ed.2d at 426-28. This requires proof that
the failing was a conscious choice by policymakers among
alternative courses of action, which in turn, caused the jailers'
deliberate indifference. Id. at 389-91, 109 S.Ct. at 1205-06, 103
L.Ed.2d at 427-28.
The issue in a case like this one ... is whether [the]
training program is adequate; and if it is not, the question
becomes whether such inadequate training can justifiably be
said to represent "city policy.' It may seem contrary to
common sense to assert that a municipality will actually have
a policy of not taking reasonable steps to train [or select]
its employees. But it may happen that in light of the duties
assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights,
that the policymakers of the city can reasonably be said to
have been deliberately indifferent to the need. In that
event, the failure to provide proper training may fairly be
said to represent a policy for which the city is responsible,
and for which the city may be held liable if it actually
causes injury.
Id. at 390, 109 S.Ct. at 1205, 103 L.Ed.2d at 427-28 (footnotes
omitted) (alterations added); see also Thomas v. Town of Davie,
847 F.2d 771, 773 (11th Cir.1988) (liability may be founded upon
proof of a policy of deficiencies in staffing or procedures such
that the inmate is effectively denied access to adequate medical
care).
Before it may be said that a municipality has made a
deliberate choice among alternative courses of action, its
policymakers must have had "actual or constructive notice that the
particular omission is substantially certain to result in the
violation of the constitutional rights of their citizens." City of
Canton, Ohio, 489 U.S. at 396, 109 S.Ct. at 1208, 103 L.Ed.2d at
431 (O'Connor, J., concurring in part and dissenting in part)
(cited with approval in Farmer v. Brennan, 511 U.S. ----, ----, 114
S.Ct. 1970, 1981, 128 L.Ed.2d 811, 827-28 (1994)). This may be
demonstrated in one of two ways.
First, the need for a particular type of training may be
obvious where jailers face clear constitutional duties in recurrent
situations. See, e.g., id. 489 U.S. at 390 n. 10, 109 S.Ct. at
1205 n. 10, 103 L.Ed.2d at 427 n. 10 (citing the obvious need to
train officers with respect to the constitutional limitations on
the use of deadly force). Young's claims do not fit within this
category. See id. at 396-97, 109 S.Ct. at 1209, 103 L.Ed.2d at 432
(observing that contentions "that police officers were inadequately
trained in diagnosing the symptoms of emotional illness—falls far
short of the kind of "obvious' need for training that would support
a finding of deliberate indifference to constitutional rights on
the part of the city") (O'Connor, J., concurring in part and
dissenting in part).
Alternatively, the need for more or better training may be
obvious where a pattern of constitutional violations exists such
that the municipality knows or should know that corrective measures
are needed. Belcher v. City of Foley, Ala., 30 F.3d 1390, 1397-98
(11th Cir.1994). This court has therefore held that,
[t]o prove § 1983 liability against a municipality based on
custom, a plaintiff must establish a widespread practice that,
"although not authorized by written law or express municipal
policy, is "so permanent and well settled as to constitute a
"custom or usage' with the force of law[.]" In other words,
a longstanding and widespread practice is deemed authorized by
the policymaking officials because they must have known about
it but failed to stop it.
Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th
Cir.1991) (citations omitted); see also City of Oklahoma City, 471
U.S. at 823-24, 105 S.Ct. at 2436, 85 L.Ed.2d at 804 (where a §
1983 claim turns on the failure of an officer to comply with an
express, constitutional policy, proof of more than a single
incident will be necessary to establish both the requisite
municipal fault and the causal connection between the practice and
the constitutional deprivation).
The record in this case reveals that Young is not the only
City inmate who has complained of a lack of adequate treatment for
serious medical problems stemming from mental illness.
Furthermore, the alleged mistreatment and omissions suffered by
Young occurred over a period of several months. According to her
deposition testimony, at least three different jailers were charged
with her care during her incarceration. Construing this evidence
in the light most favorable to Young, an inference may be made that
a pattern of deliberate indifference to the psychiatric needs of
mentally ill inmates existed at the jail of which City policymakers
should have been aware.
We agree with Young that Cullinan's affidavit is insufficient
to counter this inference. It emphasizes the City's general,
formal policy concerning inmate medical care and the training of
jail personnel, which has no bearing on the alleged custom which
Young complains was actually in place. The record does not confirm
Cullinan's contention that the official policy regarding prompt and
appropriate medical attention was followed in this case.
Furthermore, it cannot be determined from Cullinan's broad
statements with respect to the initial and continuing training of
jail staff that the instruction provided to the particular guards
charged with Young's care was sufficient. Evidence of the details
of the training program is conspicuously absent from the record.
We therefore cannot say that the need for more or better training
was not obvious or that deficiencies in training did not cause
Young's injuries. Nor did the City submit any evidence concerning
the selection of jail employees. Lacking such evidence, the City
was not entitled to summary judgment.
III. CONCLUSION
In accordance with the foregoing discussion, we AFFIRM the
denial of Young's motions for appointment of a mental health
expert, for a hearing to present oral testimony and to consolidate
her case with Arnold. Because issues of material fact remain with
respect to whether Young suffered constitutional deprivations
caused by a custom of inadequate selection or training of jail
employees of which the City should have been aware, we REVERSE the
district court's grant of summary judgment and REMAND for further
proceedings.