Clifton Redman v. County of San Diego Capt. Richard Beall Lt. Robert Witcraft Sgt. Dan Canfield Deputy Gene Turner, and Does I Through Xx, Inclusive

REDMAN, Plaintiff-Appellant, Clifton DIEGO; Capt. Richard OF SAN

COUNTY Witcraft; Sgt.

Beall; Dan Lt. Robert Turner,

Canfield; Deputy Gene Inclusive, XX, through Defen

Does I

dants-Appellees.

No. 87-6139. Appeals, States Court

United

Ninth Circuit.

Argued En Banc and Submitted

Oct. 1990. Aug.

Decided granted a directed ver-

The district court in favor of the defendants. court dict that Redman had failed to determined present sufficient for a reasonable evidence jury conclude Redman had been indifference” treated “reckless disregard” safety. for his with “callous after en banc a We consider case panel decision that affirmed the district Diego, County court Redman v. San (9th Cir.1990). F.2d 362 We borrow extensively decision for our from that of facts. statement jurisdiction under 28 U.S.C. have We part 1292. We affirm in and reverse § part. Daley, Murphy & Chu- Daley, D.

William Cal., Vista, plaintiff-appellant. for la FACTS Northup, Deputy C. Nathan Redman January Clifton was Cal., Counsel, Diego, for defendants- San Bay Diego County’s South into San booked appellees. as Facility he was held a Detention where Redman, Upon arrival pretrial detainee. Wheeler, American Civil Liberties Betty old, placed a eighteen years then Cal., Union, Diego, for amicus. San a designated “young receiving module was 5’6” tall unit.1 and tender” Redman pounds. weighed approximately and convictions. prior no criminal He had arrival, after his a one week after About GOODWIN, BROWNING, Before inmate, Red- another exchange with verbal ALARCON, FLETCHER, SCHROEDER, “young from and transferred man was KOZINSKI, REINHARDT, WIGGINS, housing an area into tender” module FERNANDEZ, THOMPSON, LEAVY and jail, or the “main- general population Judges. Circuit assigned to module. Redman line” single cell with an in- enclosed two-bunk LEAVY, Judge: Circuit Clark was twen- Kevin Clark. mate named old, 5’11” approximately years ty-seven raped while con- Redman Clifton jail pounds. The tall, weighed 165 Facility, a Bay Detention at South fined was incarcerated that Clark Diego County officials knew operated by the San for upon conviction violating parole for brought an Department. Redman Sheriff’s According an inmate sta- offense. against the sex under U.S.C. action § facility, Clark was file at report on and em- tus jail officials County and various He had been aggressive homosexual. an ployees. case, jail officials also classified ion in this is laden with states that "this case 1. The dissent Redman, at aggressive. emotional re- an Clark as terms intended evoke "young report examples, spoke responded to the ty whom she with girlfriend his telephoned his brother and Bay Detention Facili- effect that the South assault, and that he and told them of the baby-sitting ty operating “a ser- was The mother of Red- feared future attacks. vice.” Pearson, called the girlfriend, man’s Mrs. call, jail response to this one of Bay Facility and told South Detention guards duty called Redman down to the personnel that Redman had been threat- and, deputy that her station via intercom within ened sexual assault and with inmates, and other asked daughter had threatened the event view Clark been report having any prob- he was anyone. She did not a Redman whether Redman told replied Red- that one had lems.4 Redman he was not. rape because she did not know Bay According report address from letters she had sent Clifton. to a on file at the South our 2. 28, 1982, Evidently they’d Facility the address where we live. seen Detention dated December convey during you Q. parole requested Did this conversation that Clark be Clark’s officer fact that it was a sexual assault that was to a homosexual module due to transferred being sexually involved? Clark’s concern about teased and A. Yes. homosexuality. In re- harassed because of his response Q. And what was the or what was sponse report, Clark had been transfer- to this gist person’s response? report red into the homosexual module. A dat- do, Basically that all Cliff had to if he A. ... January jail deputy ed that a had noted any problem anyone at all or was afraid of had that been "informed an unnamed source him, hurting is to tell them.... coercing manipulating been and oth- Clark had you saying anything Q. fur- Do recall him This er inmates in the tank for sexual favors.” during ther that conversation? report by jail "Since Clark stan- also stated: said, "Well, you say, Yes. He did he A. required dards isn't to remain in homosexu- [the know, baby- we can’t watch him like this is a placed mo- al he was in mainline module] [a know, sitting something. You if he service or dule].” any problems, has he can call us. The sexual attacks on Redman occurred in you though go Q. feel as ahead. Did — January January and mainline module on 30, eye keep A. “We can’t a closer on him.” purposes reviewing 1983. For Transcript Trial at 151-52. verdict, directed we assume that the officials responsible into the for Redman’s transfer testimony following excerpted 4.The from the unit with Clark were aware of these mainline Green, Deputy guard questioned who Jose reports. Redman: you coming Q. down And do remember him following excerpted 3. from Mrs. Pear- day? testimony: son’s Yes, A. sir. Bay you Q. prompted you Q. And called then South facili- [sic] have him come What ty? down? Yes, people phone A. and I talked to two there. from one of the A. I received a call relayed person deputies one received a call The first me to the second control that he had believe, mother, charge that he who was in of wherever Cliff was. from either his I was them, you you having problems Q. some kind in the mod. What did tell if recall? right. they you Q. didn’t describe to A. I told them that I was concerned about All And there, Redman, problem having? was Cliff who was in their the kind of he No, my daughter very upset A. sir. he had told that he was afraid, assaulted, very being Q. called You don’t recall who it was who and afraid of and you? by people he had been threatened who were No, jail, anyone also in the if he told about A. sir. down, him, long they Q. he came and how did the threats that made to And so had been daughter they you knew talk to him? could also hurt our because Further, protection insufficient prison- he that he lied because testified man later him, might happen to resulting of what in harm inflicted in- afraid er other was family her if he told the girlfriend, prisoner’s his also mates violate due inquiry investigation or No further truth. 315-16, 320, rights. process official. Redman was by any jail made 2457-58, cell Clark. left propriety We review the of a directed again, day raped The next Redman de novo. verdict Meehan v. Los only by Clark but two time not this (9th Cir.1988). 856 F.2d Angeles, rapists of the three inmates. Each other light must view the evidence in the “We Redman, larger older and than nonmoving party most favorable to the Af- an extensive criminal record. each had party.” draw all inferences favor of that assaults, telephoned again Redman ter the granted AId. directed verdict should be brother, talking crying time his permits only when the evidence one reason- open in an area period extended of time Neely the verdict. able conclusion as to morning The next Clark facility. Co., Paul Fire Marine Ins. St. & again. That afternoon Red- raped Redman (9th Cir.1978). conflicting “If in- custody. from man was released facts, ferences be drawn from the raped Redman Each of the inmates who go jury.” must v. case to Rutherford sodomy. charged with subsequently was (9th 1444, City Berkeley, 780 F.2d 1448 of guilty. pleaded Each Cir.1986) 345). (citing Neely, 584 F.2d at release, brought Redman After his Culpability Required to The Level Con- 42 in district court under U.S.C. action Deprivation stitute Constitutional defendants against 1983 § Diego, Duffy, John various San Sheriff requires a claimant to Section 19835 Bay De- employed at the South individuals (1) acting color prove person that a under Facility. The district court directed tention (2) act that de of state law committed an Red- in favor of all defendants. a verdict privi prived right, the claimant of some appeals. man protected by the lege, immunity or Consti or laws of the United States. Leer tution ANALYSIS 628, (9th F.2d 632-33 Cir. Murphy, v. 844 individually named Redman contends 1988). dispute here that the There is no deprived committed acts that defendants under color of state law. defendants acted right personal him of his constitutional the defendants’ con The issue is whether process the due clause security under federally pro deprived Redman of a duct Supreme fourteenth amendment. right. tected right that the Court “has noted ‘of a consti- person deprives “A another liberty inter- security a ‘historic constitutes meaning of sec- right, within tutional substantively by the Due protected est’ act, 1983, if does an affirmative tion he right not ex- And that Process Clause. acts, affirmative participates another’s confinement, even for tinguished by lawful he is perform an act which or omits to Romeo, penal purposes.” Youngberg v. depri- legally required to do that causes 2452, 2457-58, 307, 315, 102 S.Ct. 457 U.S. ” complains].’ omitted). plaintiff (1982) (citations vation of which 73 L.Ed.2d 28 [the who, any Every person under color of stat- Maybe A. a few seconds. custom, ordinance, ute, usage you regulation, Q. or What did ask him? you having any problems subjected, A. "Are subjects, be or causes to ... mod?” person States or other citizen of the United say? Q. What did he depriva- jurisdiction thereof to the within the A. "No.” Q. any rights, privileges, or immunities tion of you being Anything recall asked? else laws, shall be the Constitution secured No, sir. A. law, party injured action at in an liable to the Transcript Trial proper proceeding for equity, or other suit part: redress.... provides in relevant 5. Section 1983 1440 (quoting Duffy, government 633 588 sions of deprive

Id. at Johnson officials to 740, (9th Cir.1978)). life, person liberty, property.” 743 Dan- Williams, iels v. 474 U.S. at improper We must resolve the level of (citations omitted). purpose at 665 pre must shown toward a conduct that protect the clause is to individuals from a pro trial detainee to insufficient establish government’s arbitrary pow- exercise of its tection and thus a violation of the constitu Thus, traditionally ers. Id. the clause has personal security tional under chosen, protected against deliberately but Supreme fourteenth amendment. The arbitrary government actions. Court has decided that conduct negligence” by prison amounts to “mere process We now examine how the due trigger applied officials is not sufficient clause protect pretrial has been process protection substantive due detainees in a context.6 We fourteenth liberty amendment. Daniels are mindful protected that a interest Williams, 327, 330-32, 474 U.S. 106 process S.Ct. the due clause involves a bal- 662, 664-65, (1986); 88 L.Ed.2d 662 ancing. determining Davi “In whether a sub- Cannon, 344, 347, 106 right protected don v. 474 U.S. process stantive the due 668, 670, (1986). violated, L.Ed.2d clause has necessary been it is trigger threshold of liberty conduct that will balance ‘the of the individual’ and ” protection open by has been left organized society.’ Su ‘the demands of an preme Canton, City Court. Youngberg, Ohio v. U.S. 102 S.Ct. at Harris, 388 n. 109 S.Ct. 2460. Almost nowhere are the demands (1989); n. organized 1204-05 L.Ed.2d society greater than those Albers, Whitley v. placed management on the prison. 1078, 1088, (1986); 5.Ct. 89 L.Ed.2d 251 Court, According Supreme Williams, 3, Daniels v. 474 U.S. at 334 n. “the Due protects pretrial Process clause a 106 S.Ct. at 666 n. 3. Thus we must deter detainee from the use of excessive force showing greater mine what conduct level punishment.” that amounts to Graham v. culpability, “recklessness,” of such as Connor, 386, 10, 490 U.S. 395 n. 109 S.Ct. “gross negligence,” or “deliberate indiffer 1865, 10, (1989) 1871 n. 104 L.Ed.2d 443 ence,” apply prison should to officials’ (citing 520, Wolfish, Bell v. 441 U.S. 535- pretrial begin treatment of a detainee. We 39, 1861, 1871-74, 99 S.Ct. 60 L.Ed.2d 447 purpose with the process of the due clause. (1979)).7 are, however, There limits on the

“The Due Process Clause pretrial of the extent to which detainees provides: Fourteenth Amendment they claim being punished in violation ‘[N]or any deprive life, shall any person State of of the fourteenth govern amendment. The liberty, property, process or without “legitimate due of ment has interests that stem Historically, guarantee law.’ this of due manage from its need to facility the process applied has been to deliberate deci- which the individual is detained.” Bell v. present question 6. This case does not only 'judicial the wheth- crime. He has had deter- gross negligence gives er or recklessness rise to probable prerequisite mination of cause as process a due prison violation outside of the or liberty extended restraint [the] follow- [his] ” Although Supreme context. Court 536, ing Wolfish, arrest.’ Bell v. 441 U.S. at 99 yet question, has not decided that we have. See (quoting Pugh, S.Ct. at 1872 Gerstein v. 420 U.S. Bautista, Fargo 638, City San Juan 103, 114, 854, 863, 95 S.Ct. 43 L.Ed.2d 54 639, (9th Cir.1988) (holding police 641 offi- (1975)). Thus, eighth while the amendment cer could be held liable under section 1983 for proscribes punishment cruel and unusual accidently shooting handcuffed arrestee in the inmates, process convicted the due clause of the jury back if the found that his conduct amount- proscribes any punish- fourteenth amendment gross negligence recklessness). ed to or However, pretrial ment of detainees. convicted prisoners’ liberty protected by interests are also process provides 7. The due clause a different process pretrial due clause and the state’s failure to standard for eighth detainees than does the protect persons against such proscription against assaults other amendment's “cruel punishment” prisoners prison- and unusual results in for convicted a constitutional violation person lawfully ers because "[a] committed to when that failure constitutes indiffer- deliberate pretrial adjudged guilty detention has safety. not been ence to their See at 1444. infra

1441 evolving standards of meaning 540, 1874. from 99 S.Ct. at at Wolfish, 441 U.S. progress of a matur decency mark the held that “main- has Supreme Court Dulles, 356 U.S. 86, ing society.” Trop v. security preserv- and taining institutional (1958). 101, 630 L.Ed.2d discipline are essen- ing internal order end, the Estelle Court relied To may require limitation goals that tial Resweber, ex rel. Francis v. Louisiana constitutional retained retraction 374, (1947), 91 L.Ed. U.S. 67 S.Ct. pre- prisoners and convicted rights of both concurring opinion was based in which the 546, 99 S.Ct. at Id. at trial detainees.” process clause of solely on the due omitted). Because of (footnote Estelle, 429 U.S. amendment. fourteenth security within of internal importance Frank 97 S.Ct. at 291-92. Justice at must officials facility, “[p]rison corrections process the due there that furter wrote action to ensure appropriate free to take long govern so clause is not violated per- corrections safety of inmates the con “repugnant is not ment conduct escape or unautho- prevent sonnel Resweber, 329 U.S. of mankind.” science Id. 99 S.Ct. at entry.” rized (Frankfurter, 471-72, 67 S.Ct. at 380-81 must be evaluated practices] “[Prison From Es (citation omitted). J., concurring) prison objective of central light of the telle, then, “an un conduct that is either administration, safeguarding institutional pain” infliction of necessary and wanton problems “the Id. security.” Because of mankind” “repugnant to the conscience operation of a day-to-day in the that arise deliber “sufficiently harmful evidence susceptible facility are not corrections Estelle, at 105- indifference.” ate solutions,” prison administrators easy 97 S.Ct. wide-ranging defer- be accorded “should always the indifference Deliberate poli- execution adoption and ence culpability prison in a con ultimate level judgment in their practices that cies and Albers, Whitley text, however. internal order preserve are needed 89 L.Ed.2d se- maintain institutional discipline and to (1986), Supreme confronted Court was curity.” brought by a action a section 1983 Therefore, cognizant both we must be seriously wound who was convicted inmate officials the deference accorded during a prison guards by gunfire from ed managing securi- the of their difficult task situation, court the riot. this prison the of the prison, and ty needs of the government conduct the required that detainee, subjected to nor- once the pretrial indiffer more than “deliberate to amount that attach conditions limitations and mal stan decided that that Court ence.” The confinement, pun- to be free from to their im capture the adequately not dard “does ishment. obligations of competing portance” context, government the prison In the “unnecessary and avoiding infliction of the liability un- given rise to has conduct that and the a convicted inmate pain on wanton” indif- “deliberate 1983 has been pris der section safety of for the institutional concerns has held Supreme Court inmates, The staff, ference.” visitors. other to the seri- indifference” 1084- that “deliberate 106 at Whitley, 475 U.S. at S.Ct. prisoners ques amounts the ous medical needs stated: “we think 85. The Court “ infliction of inflicted ‘unnecessary and wanton the measure taken the tion whether ” and suffer eighth pain unnecessary the amend- and wanton pain’ proscribed Gamble, 97, 104, force was on whether ing ultimately turns ment. Estelle (1976) maintain or effort good 251 in a faith applied 50 L.Ed.2d 97 S.Ct. maliciously and sadisti discipline or Georgia, 428 (quoting Gregg v. U.S. restore causing very purpose of cally for 49 L.Ed.2d 96 S.Ct. 320-21, at 1084-85 amendment, at S.Ct. harm.” Id. like (1976)).8 The fourteenth omitted). was con- The Court amendment, (quotation “must its draw eighth Estelle, at 105- indifference. deliberate 06, clear that "accidents” Court made it 8. The at 291-92. rise to the level do not "inadvertent failure” situations, tween the two as measured quell the applied to that the force cerned warning availability existence of eighth amendment not violate riot did redress, noted, are obvious. As in re by “evincpng] such wantonness cases, liability both measured infliction of harm unjustified spect to indifference” willingness “deliberate standard. knowing to a is tantamount 321, 106 S.Ct. it occur.” Id. (citations omitted). 794 F.2d at Berg, as “mali such indifference We will define reasoning Berg applies in The situ- clear that made it since the Court cious” pretrial us where a detainee is ation before inappropri indifference “deliberate” came from raped. danger to Redman ate, term “malicious” employed attack, from a riot situ- unprevented an thought conduct it the level of describe in restrictive standard ation which the least distinguished the necessary. The Court government applies, conduct out of con- articu standard “deliberate indifference” safety for institutional and control. cern Estelle, it stating in lated court also defined what “delib- Berg presented context appropriate circuit: erate indifference” means responsi- case the State’s because indifference” standard The “deliberate medical needs of bility to attend to the degree requires finding of some ordinarily clash with prisoners does not culpability,” does not re- “individual but governmental re- equally important other quire express punish. intent to Consequently, “deliberate sponsibilities. require guard standard does not that the prisoner’s serious ill- indifference to a certainty to a moral or official believe Estelle, at 105 injury,” ness U.S.] [429 that one inmate intends to attack another 291], typically be estab- can [97 given place certain before at a at a time necessity disproved lished or without steps obligated that officer is to take balancing competing institutional con- But, prevent on the such an assault. safety staff cerns for hand, than a other he must have more inmates. other suspicion that an attack will occur. mere 320, 106 S.Ct. at 1084. Id. 475 U.S. at (quotations at 459 and citations omit- circuit, recog- citing Whitley, has This ted). “deliberate” nized the distinction between is the That “deliberate indifference” In Berg indifference. and “malicious” standard used to measure violations of the (9th Cir.1986), Kincheloe, eighth proscription of cruel amendment’s alleged he example, a convicted inmate punishment and unusual does not mean it custody placed protective had been pun- applies only persons who Nonetheless, prevent he was an attack. pre-trial as a de- ished. Redman’s status though report job to a even he ordered to therefore, may punished, tainee who not be that he would be had warned an officer preclude application does not of the stan- Subsequently, Berg was subject to attack. inappropriate not find it that dard. We do Because raped job at the site. beaten may under the the same standard be used inmate, analyzed Berg was a convicted eighth amendments: fourteenth and pro- eighth his amendment’s case under if surprising It would indeed be ... “con- punish- scription against cruel and unusual or “af- duct that shocks the conscience” decided that the ment. Id. at 459-60. We law,” brutality the cloak of and so “malicious” rather than the ford[s] “deliberate” Amendment violates the Fourteenth applied because indifference standard punishment also “inconsistent were not Berg’s allegations were of decen- contemporary standards prisoner- analogous to a case in which a of cy” “repugnant to the conscience patient is denied relief from an seeks but Eighth in violation of the mankind” infirmity. danger comes not Here the [Amendment]. disease, un- from the untreated but the 327, at 1088 475 U.S. at 106 S.Ct. prevented Whitley, The similarities be- attack.

1443 (citations omitted).9 Moreover, we see no mind of the official necessary. Wilson — why maturing society Seiter, reason should em v. -, -, U.S. 111 S.Ct. ploy any 2321, 2324, less a standard of tolerance to 115 (1991). L.Ed.2d 271 The rape prisoner ward the of a convicted as Court decided that the official’s state of opposed rape pretrial to the detainee. mind must amount to wantonness to be a violation of the eighth amendment. Id. 111 requirement of conduct S.Ct. at 2324. When prisoner is chal amounts to pro- “deliberate indifference” lenging conditions of confinement, which appropriate vides an pretrial balance of the protection includes the he is afforded detainees’ punished to not be with the against inmates, other 2326, id. at given prison deference officials to Court held that “deliberate indifference” manage prisons. This standard also constitutes wantonness. Id. The Court comports purpose with the of the pro- due further held that whether conduct “can be protect against cess clause: to the deliber- characterized as depends ‘wanton’ upon the ate, arbitrary, but by government. choices facing (em constraints the official.” Id. We therefore hold that deliberate indif- phasis original). ference is the level culpability pre-

trial detainees must Although establish for a viola- we do not decide here tion of their security whether the inquiries interests un- same are appropriate der the fourteenth amendment. for claims brought by pretrial We also detainees hold that Clause, conduct that is so under the wanton or Due Process we observe respect reckless with “unjustified that “if ... officials know or should know particular infliction of harm as is tantamount vulnerability, then the knowing occur,” willingness that it Fourteenth imposes Whit- Amendment on them 321, ley, obligation U.S. at an S.Ct. at will not to act with reckless indif also suffice to liability establish ference to that vulnerability.” because it Colburn v. equivalent Upper conduct Darby Township, to a deliberate (3rd Cir.1988), denied, choice.10 This be termed “reckless cert. 489 U.S. indifference.” (1989). Milwaukee & St. Paul R. L.Ed.2d 808 Arms, Here, Co. 23 L.Ed. the officials knew of Redman’s vul (1875) (in awarding punitive nerability damages place resulted his initial jury may “young consider act done ment in the wilfully, or as and tender” unit within the result of Bay reckless indifference to the South Facility. Detention rights equivalent of others which is to an them), intentional violation of cited in Liability County Diego San Wade, 30, 42,

Smith v. may not held liable (1983). 75 L.Ed.2d 632 for acts of officials unless “the ac Recently, Supreme Court held that alleged tion that is to be unconstitutional eighth amendment claims implements statement, based offi- executes a conduct, inquiry cial ordinance, into the state regulation, officially or decision 9. We note that other disregard rights circuits have also chosen of others. Wantonness govern the "deliberate indifference” standard to is defined as a licentious act of one man process rights pretrial the due See, detainees. another, person regard towards the without Cleveland, e.g., Molton v. 839 F.2d 240-243 rights; to his it has also been defined as the (6th Cir.1988), denied, 1068, cert. 489 U.S. charged duty conscious failure one with a 1345, (1989); 103 L.Ed.2d 814 Colburn v. diligence prevent to exercise due care and to 663, Upper Darby (3d Township, 838 F.2d injury discovery peril, after the of the Cir.1988), denied, 1065, cert. 489 U.S. 109 S.Ct. charged under circumstances where he is 1338, (1989); 103 L.Ed.2d 808 Anderson v. Gut knowledge peril, being with a of and such schenritter, 346, (7th Cir.1988). probable conscious of the inevitable or results 10. The Supreme of such failure.” Court has defined “wanton" as Wade, 8, follows: Smith v. 39-40 n. 103 S.Ct. (1983) (quot 1631-32 n. regard "Wanton means 75 L.Ed.2d 632 reckless—without to rights ing Wantonly English Encyclopedia the causelessly, 30 American others.... means restraint, (2d 1905) (footnotes omitted)). without and in reckless Law 2-4 ed. Then, ag- once segregating homosexuals. body’s promulgated that adopted and discovered, deprivation were the gressive homosexuals or if the constitutional

officers” governmental according facility relocated them pursuant “visited detention has though such a custom even in the mainline policy ‘custom’ the or custom through the approval not received formal protect pas- population of the decisionmaking channels.” body’s official presumption sive homosexuals.11 City Dep’t Social v. New York Monell population ... general inmate that “[t]he Servs., 658, 690-91, [homosexually ag- any such able to resist (1978). 2035-36, L.Ed.2d 611 Oppo- gressive] pressure.” Government’s Rehearing and Re- to Petition for sition the action There is evidence Banc, Second, county hearing En at 3. unconstitutional, namely, alleged to be overcrowding policy had a or custom of Redman’s deprivation inmates were prison, so that heterosexual him in a cell with an security by placing placed in the same cell or module with homosexual, was the result aggressive This was con- aggressive homosexuals.12 First, the de county policies or customs. course of action trary to the desirable facility policy or custom of tention had words, aggressor, so that is following excerpted testimo- In other he was from the 11. Beall, captain Generally, ny why who was the of Richard C. he was moved out of there. Bay Facility charge of the South Detention separated, try keep when we homosexuals raped: when Redman was passive They keep ones isolated. are the Q. is that document? Item 4A: What likely who are most to be victims. TT Vol. ones copy is a of our Inmate Classification A. It II, at 191. Plan, May dated 1983. Q. that wasn’t some- The reason was that incident, Q. after this but it does So this was thing you normally would continue to house facility? the classifications within outline aggressive a homosexual homosexuals into general classification that could A. Yes. It’s tank? facility. be used at each good idea. Id. A. No. That would not be a Q. inmates indicates there homosexual It inmates, as neces- shall be isolated from other sary. county deputy for the defendants counsel 4A. That’s item six in Exhibit following argument in his made the remarks is correct. A. That Q. favor of a directed verdict: necessary"? "as What is meant Honor, respect, your policy With Well, segregate impossible to A. it would be being allegedly placed resulted in Clark into segre- The ones we’ve all homosexual inmates. allegedly parole mainline tank ... when danger gated were in were the ones we felt in and said he’s a officer for Mr. Clark came homosexual, being attacked. placed and he was then only Q. homosexuals So it would be those tank, obviously it did not work homosexual danger might physically who themselves aggressive pressed out.... He was separated? that would be do, attempted yes. passive homosexual inmates in the homosexu- A. That’s what we Q. anything they a homosexual Was there tank for sexual favors and when al being aggressive that, as far as his housed immediately yanked who was they him learned separately? segregating there. The idea of homo- out of usually didn’t know about that. If we A. We indicated, sexuals, Captain Beall is for the strong it and had reason to believe knew about Now, you protection. if have an homosexual persons, would attack other then we that he homosexual, aggressive pro- he doesn't need keep attempt in a to isolate him or him would put popula- in the mainline tection. You him housing enough be ob- small unit so he could presumably the other inmates in the tion and Bay at South served closer. We couldn't do that protect population able to them- mainline Jail. selves, appear person to be and if a does Bay? Q. able to do that at South You weren’t ap- young that is based on and tender —and capability A. We didn’t have the for individu- pearance. the standard there and ... That’s II, (TT) Transcript housing. Vol. al Trial applied in this case. itself 170-71. II, added). (emphasis TT Vol. at 266-67 Now, you you Q. know or do have do manipulative knowledge why as to a coercive space Sergeant was not Canfield testified homosexual would be taken out of the homosex- priority admitted that at the first item of security general put ual mod and into low assault, facility the detention the time of this dormity part facility? [sic] facility inmates in a contained in excess of 300 aggressive apparently A. He was the homo- designated inmates. RT Vol. 229-30. for 192 apparently type passive, sexual and not the Sergeant testified that in his Canfield further attempting pressure younger the ones or facility activity. opinion, was overcrowded passive the detention ones that were more into sexual

1445 was, Captain testified, put as Beall aggressive which ei- the homosexual in the main- aggressive population, ther to the line isolate homosexual because it was assumed place or to him in a smaller unit heterosexual protect for obser- inmates could them- 11, selves. n. supra, See Thus, vation. disagree minority’s with the conclusion dissenting opinion authored jailers the acted in contravention of Judge Thompson claims that: County policy. County policy the had a required which “policy” The term “generally implies a aggressive segregation homosexu- course of consciously action chosen from als, practice, at the officials [but that] among various alternatives.” City SBDF did not policy. follow this In con- Tuttle, Oklahoma 808, 823, 105 of the County’s policy, travention offi- S.Ct. 85 (1985). L.Ed.2d 791 put jail’s cials Clark in the general popu- imposes Monell liability for injuries result- lation, and Redman assigned to his ing choice, from such a because Redman’s cell. Such conduct is for the insufficient deprivation pursuant “visited gov- imposition of liability. Monell ernmental though ‘custom’even such a cus- However, Dissent 11769-70. the record tom has not received approval formal is devoid of written County re- policy through the body’s official decision-making garding segregation aggressive ho- Monell, channels.” 690-91, 436 U.S. at 98 mosexuals. S.Ct. at 2035-36. strongest policy written on homosex- We conclude that there is evidence from Diego uals is the San Sheriff’s which a jury reasonable could find that the Department Manual of Policies Proce- acting officials pursuant were to Coun- dures, which states inmates “Homosexual ty policies or customs when Redman and will be isolated from other as nec- inmates Clark were placed in the same A cell. essary.” Supplemental Record; Excerpt of jury reasonable could find that poli- these 11, n. supra, see at 1444. We do not read cies or customs both exacerbated require this to aggressive homosexu- danger posed by aggressive homosexual segregated als be from the popu- mainline general prison population to such an Instead, lation. we find that written extent they amounted to deliberate was, policy explained by Lt. Beall and indifference to Redman’s security, counsel, county protect intended to pas- thus constituting a violation of 1983.13 § Moreover, sive homosexuals. if it even could general be said that the policy appli- Because jury a reasonable could find the Diego cable to county jail San County liable, facilities was the directed verdict in its to isolate and aggressors, observe sexual favor was in error. When viewed (or the routine failure inability) light claimed Redman, most favorable to is there general policy follow the at the con- SBDF “substantial support evidence to a verdict” stitutes a policy overrides, custom or which for him. Kennedy, Peterson v. 771 F.2d purposes, general 1244, (9th Monell policy. Cir.1985), denied, 1256 cert. 475 unwritten 1122, 1642, was to SBDF 90 L.Ed.2d only "floor-sleepers." if were agree there particular RT Vol. as to whether conduct consti- testify did not He was con- gross negligence, negligence tutes ness, or reckless- potentially dangerous sidered if overcrowded question is one of fact to be decided sex could offenders not be isolated. (footnote jury.” omitted)). It thus likely the district court will face the difficult 13. We what we reiterate said in v. Ostran Wood defining der, jury "negli- task of for the the terms (9th Cir.1989), 879 F.2d n. cert. — denied, U.S. -, gence,” "gross negligence," "recklessness,” 112 L.Ed.2d (1990): Daniels, "deliberate indifference." See 334-35, 666-67; Fargo, U.S. at 106 S.Ct. at jury presented might "A with these facts F.2d at 641-42.” find Ostrander’s conduct to have "delib- been indifferent,” "reckless," again point erately We "grossly out that the two latter negli- terms gent,” merely "negligent.” liability Fargo suffice to City See establish under section Bautista, (9th San Juan equiva- since 641 may means “wanton” and "reckless” of Cir.1988) (“When persons reasonable dis- supra. lent to a deliberate choice. See n.

1446 in that said threatening Plaintiff peril the directed verdict reverse (1986). We contacted Duffy] had been County. [Sheriff the favor of PEARSON, one, RENE informed Individual Defendants previously been having individual such individually named defendants The five de- within said of the situation informed Duffy, the John are Sheriff case in this Plaintiff, the threat- facility by tention was in County, who Diego of San Sheriff Plaintiff, person fur- such harm to ened facilities at detention county charge of all necessary that advising that it ther was incarcerated; Cap- was Redman the time location to a safer plaintiff be moved Depart- of the Sheriff’s Beall Richard tain facility in order detention said within charge of the captain in ment, the who was harm. immediately threatened the void Facility; Lieutenant Bay Detention South the Witcraft, in command second circuit, Robert in this 1983 action In section a Canfield, a shift Daniel Facility; Sergeant liability, superior, or vicarious respondeat at the commander watch supervisor and in the absence imposed not be Turner, who Deputy Gene Facility; and liability.14 Mosher imposing such law state deputy. Cir.1978), a station worked 438, (9th Saalfield, 589 v. 941, denied, erred court rt. the trial Because we conclude ce (1979). 2883, Redman insuffi- L.Ed.2d 311 determining the evidence was find a attention. jury to to our brought reasonable no such law permit a cient to law, violation, must now as- state official of such constitutional absence varying in the constitu personal defendants’ role sess the individual must play injury Redman with id. deprivation in connection liable. See roles tional any of the At is whether However, issue testified Duffy sustained. never Sheriff delib- acted individual defendants five in the record no evidence trial. There is Redman was indifference such erate apprised Duffy personally that Sheriff per- right to of his constitutional deprived Mrs. Pearson. telephone call from Leer, F.2d at 633. security. sonal See any for Thus, Duffy not liable Sheriff deprivation personal involvement Duffy John Sheriff personal constitutional Redman’s raped, Redman security. time At the Diego the sheriff San Duffy was

John Nonetheless, inquiry does our charge all Coun County and was if supervisor may be liable “A end here. responsibility ty’s detention facilities. (1) personal her his or there either exists jails in California county operating for depriva in the constitutional involvement See upon the sheriff. placed by law tion, (2) causal connection a sufficient 4000; Board Brandt v. Code Cal.Penal § wrongful conduct supervisor’s 601, 147 between Cal.App.3d Supervisors, Hansen violation.” is re and the constitutional The sheriff (1987). Cal.Rptr. 468 Cir.1989) (9th Black, charge of and to take quired by statute it, Belt, 828 F.2d (citing Thompkins prisoners county jail and keep the added). Cir.1987)) (emphasis (5th safe prisoner’s for the 303-04 answerable keeping. See Cal.Gov.Code§ without liability exists even Supervisory Brandt, 4006; 84 Cal. Code Cal.Penal § in the offen- participation overt Cal.Rptr. 468. App.3d at imple- supervisory officials if sive act alleges: complaint that the policy so The first deficient amended ment repudiation of constitutional is a “itself ... Sher- mentioned At all times herein moving force of “the notice, rights” and is put on Duffy iff John [was] constitutional violation.” of the imminent fully informed otherwise at fault in need not be as master vicarious held liable superior doctrine Respondeat is a Holmes, Agency, 4 person History way. liability upon See the notion based pay (1882). must acts of the servant who benefits Harv.L.Rev. servant; the one wrongs committed 304) Thompkins, Diego County 828 F.2d at SAN DIEGO and the San (quoting Id. omitted). Department place prisoners Sheriff’s (citations improper detention areas within the liability is not a form vica- This latter facility in order to accommodate the Rather, liability. liability. is direct it rious overcrowding facility. of said detention liability, direct Under The record shows that at the time of supervisor plaintiff must show the assault, Bay Redman’s the South Detention was duty plaintiff a which breached Facility housed over 300 detainees even injury. The proximate cause of the though it designed was which is against super- clearly law allows actions capacity. over Officials at SBDF ad- 56% long 1983 as as a visors under section facility, mitted that at other a detainee present connection is sufficient causal thought likely to assault others would be plaintiff deprived under col- and the was carefully, isolated or more observed but the federally right. a secured or of law of overcrowding they at meant SBDF Facteau, v. McClelland 171; “weren’t to do that.” RT at able see Cir.1979). (10th requisite con- “The causal facility RT at 209. The was so crowded by setting in nection can be established ... designed person that cells for one housed of acts others which the motion a series inmates, 172, 234-35, multiple RT at reasonably should know actor knows or housing, there was no individual which cause others to inflict the constitu- would impossible made it to isolate troublemakers injury.” Duffy, tional Johnson Thus, like Clark. when Clark was found (9th Cir.1978). 740, 743-44 coercing sex from others homosexual complaint alleges The first amended also unit, way there was no to isolate him. In- Duffy: respect to Sheriff stead, placed Clark was in the mainline Duffy ... Sheriff John ] Defendant nothing population “hope with the that ... acting according to the custom and [was] happens.” RT at 210. Defendant, procedural policies of COUN- Beall, Captain charge who was DIEGO, Diego TY and the San OF SAN Bay Facility, South Detention testified that Department, and the County Sheriff’s “operated] he under the direction of Sher- empowering ... San laws [him] [a] Duffy iff at that time” and that “ultimate- County ], causing Diego employee[ department ly, the head of the was ... sexual assaults and batteries to Plaintiff II, (TT, II) Duffy.” John Vol. Bay Facility in that the South Detention capacity, creating Thus there in the record of beyond was filled thus is evidence Duffy’s supervision safety problem. overcrowding both and Sheriff ulti- both a operations at the By overcrowding, means such such mate direction of South Bay Facility. Detention If we draw all being known the COUNTY OF SAN Redman, Diego County inferences in favor of see and the San Sher- Meehan DIEGO 856 F.2d at Department, Angeles, iffs and that it was the Los jury could find procedural policy of the we find that a reasonable custom Duffy deliberately indifferent OF SAN DIEGO and the San Sheriff COUNTY security rights by Diego County Department personal to to Redman’s Sheriff’s allowing overcrowding Bay of the South operation continue of said detention facil- Moreover, hazards, safety Facility. jury could ity despite such and for Detention that, reasonably Duffy find that knew or the further reason due to such over- Sheriff overcrowding crowding, placed Plaintiff was in an area should have known of facility high facility his administration and that of said detention with a se- under policy that greater acquiesced he in a deficient curity posting, and thus a risk of rape though moving Redman’s being, harm to his well such area force behind repudiated Redman’s constitutional known ... that such ] Defendant security. Hansen v. proper for the detention of See area was not Plaintiff, Black, juryA could like- F.2d at 646. and that it was the custom and infer, Captain Beall’s testi- procedural policy of the OF wise based COUNTY protect them- they can idea that “with approved Duffy mony, that Sheriff the facili- selves.” effect policies classification

ty. recognized that Yet, Beall also Captain years has been over the experience [o]ur Beall Captain Richard likely to be victimized most the inmates captain in was Captain Beall just came the new ones who in are in opening Facility since its charge of the we call assign what in, the reason we so Sheriff operated under 1982, although he feeble, so tender and old and young and tes According to Beall's Duffy's direction. least are the are these speak, inmates to policies trial, generated all he at timony inmates, it so the newer likely prey to that all approve procedures had and to mix, thought, and good we fairly awas developed an jail. He at his were followed space. bed the available make still use May Plan” “Inmate Classification segre protective for the provided that at 198-99. Id. written While gation homosexuals. if it that was admitted Captain Beall until four officially effective plan was not aggressive, was a homosexual known that n. rape, see Redman’s months after him, we isolate to “[b]ut it was best that showed evidence trial supra, Bay Jail.” Id. at South do that couldn’t at the operative to it was policy identical He described 171; supra. n. also see January 1983. Facility Facility in the of a module the existence “coer- Beall, why a when asked Captain prisoners high security risk reserved be would homosexual manipulative cive higher watching needed “closer who put mod the homosexual out of taken including inmates security” those level of dormity security general [sic] into a low in- manipulate ... how who “know[ ] facility,” replied: part of the at 179. mates.” Id. ho- aggressive was the He apparently reasonable testimony, a Based on this passive, and not the type mosexual Beall de- Captain that jury could conclude pressure attempting to apparently was policies that were implemented veloped and more that were ones or ones younger per- Redman’s deliberately indifferent In other activity. into sexual passive moving force security and were a so that is sonal words, aggressor, was the he rights. constitutional of his of there. Gener- the violation out why he moved inmates separat- heterosexual keep homosexuals that ally, Beall assumed when we ones isolat- from ed, keep passive protect themselves try to are more able most who are They pas- the ones could ed. aggressive homosexual than an here, appeared As it likely jury to be victims. could A reasonable sive homosexuals. aggressor likely to be the he was more de- assumption exhibited an find that such the victim. than potential securi- indifference liberate aggressive homosexu- posed by also testi- TT, Captain ty Beall risks II at 190-91.15 Clark, jury could Kevin inmates. The someone like fied that al to heterosexual deliberately indifferent it was conclude away people housed keep him from We risk particular recognize Captain mod and we would Beall in the homosexual inmates, them to be general yet in a allow part young the most house him for jury inmates would population. other housing mod where placed mainline degree of Captain the same Beall approximately further conclude could security level and the same sophistication that he was deliberately indifferent in nothing that, speak, that so to hope an individual need to isolate cognizant keep inmates that the other happens, and him in an Clark, place yet did like in line. he high security module where existing so- comparable inmates be with that would Captain Beall admitted phistication. inmates other put with Clark would be supra note 11.

15. See perform an act that resulted in Red- from ed to evidence substantial Given injuries. testimony, man’s His like Ser- might conclude jury a reasonable which Canfield’s, merely illustrative of geant deliberately indif- Captain Beall was it, jail operated. how the From no reason- security needs of ferent Deputy Turn- jury able could conclude inmates, error to dis- it was heterosexual deliberately indifferent to Redman’s er was against him. the case miss situation. Lieutenant Witcraft CONCLUSION ad Among supervisory and other pretrial estab- We hold that a detainee relieving that included duties ministrative right personal lishes a violation of the to absent, Lieuten he was Captain Beall when security process due clause of under the Captain executed ant Robert Witcraft by fourteenth amendment demonstrat- and orders. procedures, policies, Beall’s ing either that officials acted with such, II, 214. As Transcript, Vol. Trial indifference” or that their con- “deliberate policies and with those he was familiar duct was so reckless as to be tantamount no evidence in the There was procedures. a desire to inflict harm. Because the however, record, indicating that Lieutenant permit in a rea- evidence this case would developing responsible for Witcraft county jury to conclude that the sonable question. policies promulgating individually named defen- and two of the policies and with the That he was familiar deliberately were indifferent to Red- dants them as re implemented procedures, right personal constitutional se- man’s does not afford a by supervisor, his quired curity, the district court’s order we reverse policymak holding him as a liable basis granted a directed verdict favor likewise no 1983. There was er under § defendants. all of the Lieutenant Wit- presented that evidence PART; IN IN REVERSED AFFIRMED in the violation directly participated craft PART; trial. and REMANDED for rights. constitutional of Redman’s their own costs on parties All are to bear Sergeant Daniel Canfield appeal. in the record There is no evidence THOMPSON, Judge, R. Circuit DAVID Canfield, acted as shift Sergeant who ALARCON,joins, Judge with whom Circuit at South and watch commander supervisor Dissenting: any hand in Facility, had Bay Detention the al intended to policies that caused is laden with terms devising the This case personal response. secur Jail officials of Redman’s evoke an emotional leged violation homosexual, “aggressive” who There is also no evidence an ity rights. ^placed offender,” in same way, “registrable sex or directed a personally he acted I plaintiff. “young and tender” act, injuries. cell with a to cause Redman’s others to pretrial de- majority that a agree with the only to illus testimony at trial served His amounting to conduct tainee must show operated in certain facility trate how pursue a section deliberate indifference no Consequently, there is evidence areas. standard, how- apply To 1983 action. jury could con a reasonable upon which ever, beyond look the labels we need to Sergeant Canfield was deliber clude that examine the evidence. right to to Redman’s ately indifferent secure. personally does presented Redman The evidence culpabili- requisite level of approach not

Deputy Turner Carl today. There has by this court ty adopted County or showing that the depu no Turner was the been Deputy Carl deliberate acted with individual defendants day-to-day func who handled the ty sheriff right Redman’s indifference to Bay Detention Facili tioning of the South Further, Redman failed security. that he either ty. There was no evidence injuries were that his present evidence neglect- act or performed or made occur, consequences that such will “poli- to a ness” pursuant taken by action caused Albers, Whitley by the Coun- promulgated cy” or “custom” (1986), 1078, 1085, L.Ed.2d 251 (“County”) any particu- Diego ty of San require greater degree standard does fact, the evidence policymaker. lar negli negligence gross culpability than in contraven- officials acted shows that indifference to gence. To act deliberate in- County’s policy regarding tion of the must have an rights, a defendant another’s Al- placements. segregation and mate harm, high probability of awareness of a erred officials have though jail disregard consciously choose to yet, cell, they assigning Redman to Clark’s Norris, 917 F.2d the risk. See Walker v. official acting pursuant to an were (6th Cir.1990)(actor exhibits de deliberate indiffer- custom or with policy or deliberately dis indifference liberate personal securi- ence to Redman’s becoming regarding risk after aware respectfully dissent Accordingly, I ty. risk). rarely ad Because a defendant will majority’s reversal of the directed from the disregard mit an awareness and conscious verdict. risk, the trier of fact must examine Keeton, Prosser and objective criteria. W. Culpability Requisite Level of A. ed.1984); (5th on 213 Keeton Torts Cortes- agree majority deliberate I with Quinones Jimenez-Nettleship, 842 F.2d v. culpability of re- indifference is the level 556, (1st Cir.) (infer knowledge 558 actor’s pretrial detainee has quired to show that risk), magnitude on of cert. of risk based person- her to deprived of his or been denied, 823, 68, 109 102 488 U.S. S.Ct. amend- security under the fourteenth (1988). analy al requires 45 This L.Ed.2d culpa- circumstances, of this level of surrounding ment. The contours sis of however, include the context in which the de bility, need clarification. which chooses a course of action and the fendant adopting the standard of deliberate In resulting of the risk from the obviousness indifference, engage not this court does I assume this method defendant’s conduct. Requiring mere semantics. a matter of proving indifference is what of deliberate recognizes high indifference deliberate stating majority refers to when reck owed the courts to degree of deference “equivalent to a deliberate less conduct prison decisions of officials. the informed City Fargo choice.” also v. San See of acknowledges prison of- This standard 638, (9th Bautista, 857 F.2d 642 n. 7 Juan ficials, courts, are the indi- rather than Cir.1988)(trier of fact infer conscious charged making complex deci- viduals conduct). disregard from competing involving a host of consid- sions indifference, Thus, prove deliberate erations, making capable of and are better disregard another’s a conscious decision examining the evi- these decisions. In rights, must examined. As the context be dence, keep in mind: we must Kincheloe, Berg we stated v. informed should defer to the [CJourts (9th Cir.1986), applying the standard 457 prison discretion of administrators be- indifference, the trier of fact of deliberate running a correc- cause the realities of must complex institution are and diffi- tions whether, exposing allegedly consider cult, equipped ill to deal with courts are prisoner danger, the defendant management problems, and the of these official(s) guided by consid- prison were to the Execu- these facilities is confided safety erations of to other inmates.... Branches, Legislative tive and not the legal standard must generally, More Judicial Branch. applied to an idealized vision of not be exists, 520, 29, life, prison prison as it Wolfish, 441 U.S. 547 n. 99 but Bell v. official(s) realistically prison and as are 1861, 29, n. 60 L.Ed.2d 447 S.Ct. 1878 influencing. capable of (1979). Id. Although not deliberate indifference does deprive pris- of

require analysis an intent to an individual the context in which An requires act the trier of fact rights, “knowing willing- her or a on officials his or 1451 emphasized County may of a Court has not environment recognize the turbulent “ definition, places vicariously held prison. ‘Prisons liable for the acts of its See, persons Monell, involuntary who e.g., employees. confinement 436 U.S. proclivity for antiso 691, have a demonstrated 98 S.Ct. at 2036. ” criminal, cial, often violent conduct.’ policy” requirement The “official in- Palmer, v. Hudson 468 Id. (quoting at 461 acts of the munici- distinguish tended 3200, 3194, 82 104 S.Ct. pality employees from acts “ (1984)). Further, ‘pris L.Ed.2d 393 municipality, thereby make clear best, is, It is some setting tense. municipal liability is limited to action always potentially explosive, and times municipality actually which re- ” v. (quoting Marchesani dangerous.’ sponsible. McCune, 459, (10th Cir.), cert. F.2d 462 531 Cincinnati, 469, Pembaur 479- 475 U.S. denied, 846, 97 S.Ct. 429 U.S. 1292, 1298-99, 89 L.Ed.2d 452 S.Ct. also Toussaint v. (1976)); see L.Ed.2d 117 (1986) (footnote omitted). (9th McCarthy, Cir. inmates, 1986) (in must assigning officials reviewing allegations govern that a inmate, single only predict behavior policy or mental custom caused the viola predict of entire but must behavior plaintiff’s rights, tion constitutional we denied, 481 U.S. population), cert. carefully must examine the evidence en (1987). L.Ed.2d 871 See liability imposed. sure is not vicarious Tuttle, City Oklahoma Further, by adopting the standard of de- 823-24, 2427, 2436-37, indifference, rather than a lesser 85 L.Ed.2d liberate acknowledge (1985). culpability, policy may A standard be shown afforded admin- only the broad discretion “where —and where —a deliberate therefore, fact, The of is istrators. trier choice to a course of action is made follow affecting reweigh not to the considerations among by poli alternatives” from various judg- its a choice of conduct and substitute County Meehan v. Los An cymakers. of If the appropriate ment as to the balance. 102, (9th Cir.1988) geles, 856 107 justi- course of conduct is affected valid Pembaur, 483-84, (quoting 475 U.S. at 106 light in a is not so fications of risk which 1300). course, allega S.Ct. at Of “bald great course of conduct is that a different policy tions” of a or custom are not suffi mandated, must defer to the trier of fact cient, Polk, 326, 454 at 102 S.Ct. at U.S. It in this the actor’s choice of conduct. 454, and evidence of more than a “nebu defen- context the evidence of the Tuttle, policy required. lous” or custom culpability dants’ must be considered. 823, 105 at 2436. Without 471 U.S. at S.Ct. evidence, plaintiff has failed to such the County Policy B. See id. at 823- present jury. a case for the Supreme the Court has stated re As 24, 105 S.Ct. at 2436-37. liability a

peatedly, impose local County majority The holds either of two causing government, the act or omission policies “moving or was the force” customs deprivation right a the of constitutional deprivation of Redman’s behind the policy or pursuant must to an official pur- personal security. Neither of these See, Department v. e.g., Monell custom. ported “policies” was established the Servs., 658, 694, Social 436 U.S. S.Ct. of evidence. 2037-38, (1978). A 56 L.Ed.2d 611 First, majority, the according to the section County may be held liable under plac- County adopted policy a or custom of “only policies are the ‘mov where its ing homosexuals in the mainline aggressive ing the constitutional viola force [behind] ” assump- the Harris, general jail population, on or City Canton v. 489 U.S. tion.’ of pro- inmates could 378, 389, 1197, 1205, tion that heterosexual 103 L.Ed.2d 109 S.Ct. homosexual assaults. County v. Dod (1989) tect themselves from Polk (quoting however, showed, son, 445, 454, the 312, 326, The evidence 102 S.Ct. segregating (1981)). Supreme County policy had a written of 70 L.Ed.2d ” v. Hammond [challenged] action.’ into isolation or homosexuals aggressive Madera, (9th County officials were housing, and special of Pembaur, at Reporter’s Cir.1988) 475 U.S. (quoting requirement. this aware 1299). 481,106 Captain Due Beall testi- II, 235-36.1 at Transcript, at Vol. housing, officials under the direction operated fied he special a lack (“SBDF”) Facility reported to an immedi- Bay Duffy Detention Sheriff South Id. homosexuals. segregate the Inspector not Powell. Id. superior, could ate designed to rooms Special at 171-72. Beall could exercise mere fact that Captain prisoner were single, a troublesome County’s poli- house executing discretion prisoners. to house two being used deputies the actions of supervised cies and policy County had a Thus, although the policymaker. does indicate he was not aggres segregation of required the which has official ... particular The fact that a homosexuals, officials at practice, sive particular exercise discretion policy. not follow the SBDF did more, not, give functions does without County’s policy, offi contravention liability on an municipal based rise popula jail’s general put cials Clark of that discretion. exercise to his cell. assigned tion, Redman Diego, 841 F.2d City San Collins imposi conduct is insufficient Such Pembaur, Cir.1988) (9th (quoting 341-42 liability. tion of Monell 1299). In 481-82, 106 S.Ct. 475 U.S. at discretionary decisions an official’s When sum, support does not the evidence policies not of that constrained County majority’s conclusion making, policies, rather those official’s placing ag- policy custom of adopted a departures from than the subordinate’s pop- general into the gressive homosexuals municipality. them, are the act ulation. Praprotnik, City Louis St. overcrowding majority turns then 99 L.Ed.2d 107 or custom. There was possible policy aas (1988). existence of such no evidence of the asser- Thus, majority’s contrary to County policy. adopt a tions, did above, “policy” is defined As discussed homosexuals placing aggressive custom of made officials as a deliberate choice jail. of the population general into the subject over matter authority with final liability Nevertheless, imposes majority Pembaur, at issue. also at See Captain County Beall’s upon the based (a 9, 106 “policy” n. 9 at 1299 481 n. S.Ct. gen- assumption that heterosexuals “ carry designed to ‘specific ... a decision protect themselves population eral can ”) course of action.’ out such a chosen aggres- have who been from homosexuals Internation Third New (quoting Webster’s in the ho- passive homosexuals sive toward (1981)); Tuttle, 471 Dictionary 1754 U.S. al however, Redman, module. mosexual (the “policy” term 105 S.Ct. at Captain present evidence failed to of action con “generally implies a course authority. policymaking possessed Beall among various alter sciously chosen from may not be considered acts An official’s natives”). unless “the official policy governmental Harris, 489 City In Canton to estab- authority given has been ‘final 1205-06, respect to municipal policy with lish housing could be enough unit so he poli- small indicating had a The evidence closer_ observed cy segregating aggressive homosexuals in- II, Reporter's Transcript, at 171. In addi- testimony by Captain Richard Beall: Vol. cludes tion, Deputy Turner testified: Gene anything a homosexual Q: Was there requirement Q: of the You’re aware being aggressive as far as his housed who was prone to who those who are individuals separately? segre- would be inmates assault other usually If know about that. We didn't A: staff gated; is that strong correct? reason to be- it and had knew about Yes, sir. persons, A: then other lieve that he would attack keep Id. at 235-36. attempt isolate him or a we would (1989), problem held or to refuse to take corrective Supreme Court L.Ed.2d represent “poli- liability may action. Monell not be im- inadequate training could imposed posed poli- on the basis of this nonexistent liability which could be cy” for To establish the upon government. cy- a local policy, the Court re- of such a existence present failed Redman also evidence evidencing the local quired proof of facts practice placing aggressive ho- that the high probabil- government’s awareness jail’s general popula- into the mosexuals government if the failed to act.

ity of harm tion, practice housing persons or the two training for more or different need [T]he designed person, in a cell to hold one obvious, inadequacy [may so and the be] by any “pol- to a decision made attributable likely to result the violation so above, icymaker.” As discussed there is no policymak- that the rights, constitutional Captain policy- evidence that Beall was a reasonably be said to city ers of the can linking maker. There also is no evidence deliberately indifferent to the have been Duffy purported Sheriff to either of the event, pro- In that the failure to need. County policies. The record is silent may fairly proper training be said vide any played by Duffy role other Sheriff city represent policy for which than the fact that he was the “head of the responsible.... Reporter’s department.” Transcript, Vol. omitted). (footnote Justice O’Connor Id. II, at 160. requirement in her concur- clarified this sum, no there is evidence of the exist- rence: County policy upon by ence of either relied plaintiff can establish Where § majority, nor is there evidence that city policymak- that the facts available to practices imple- local at the SBDF were actual or constructive put ers them on Thus, by any policymaker. mented there is particular omission is sub- notice that the imposition liability no basis for the result in the violation stantially certain to against County, against any rights of their citi- of the constitutional defendants, govern- ground on the that a zens, of Monell are satisfied. the dictates deprivation of mental caused the it be said that the mu- Only then can Redman’s constitutional “ nicipality has made ‘a deliberate security. action ... a course choice follow ” alternatives.’ among various from Culpability County’s C. (quoting Pemb 109 S.Ct. at assuming Redman introduced suffi- Even 1300) aur, 106 S.Ct. at 475 U.S. at pur- cient officials acted evidence added). (emphasis County policies, the evi- suant to relevant case, present Redman did not In the establishing dence falls far short County the had present any evidence that applied deliberate policies these were constructive notice that over actual or Redman’s indifference to high probability of crowding presented a security. majority contrary, the as the assault. To by majority the policies he The identified acknowledges, Deputy Canfield testified in placement of the focus on the Clark the SBDF was overcrowded. did not believe assignment of II, general population and the Transcript, Vol. Reporter’s subsequent The Redman to Clark’s cell. important, Captain Beall and More both Pearson, Red- the mother of they not call from Mrs. Deputy Green testified were nature of the girlfriend, man’s and the assaults at the SBDF aware of sexual response in by Deputy Green investigation case. the assault at issue prior to assert- II, not relevant to these I to the call are Reporter’s Transcript, Yols. & investigation us, Deputy policies. it ed Green’s the record before 211. From negligent, perhaps more may County was aware of a have been cannot be said the majority makes no overcrowding negligent, than but the at the due to problem SBDF Deputy “policy- attempt to Green ignore choice to label and made a deliberate competing concerns. volves a number of investigation to his to attribute maker” or rea- made a Prison officials at SBDF County policy. judgment and with whom soned where major- on relied only evidence available on information house Clark based County that the conclusion ity to reach its them. There is no evidence by plac- indifference with deliberate acted unreasonable, much officials’ choice was population general in the ing Clark these deliberately indifferent. Given less cell is Clark’s to Clark’s assigning Redman circumstances, should not substi- this court he while homosexuals passive coercion rea- for the tute its asserted omniscience The evi- module. in the homosexual officials. choices made soned however, not shows, that Clark did dence gener- jail’s in the he was while misbehave he was transferred population before al Culpability D. Individual Defendants’ or while he was module the homosexual on liability under section 1983 impose To his housing dorm after low-security defendant, act the defendant’s an individual homosexual module. See from the transfer deprivation of must or omission cause II, at 189-90. Transcript, Reporter’s Vol. rights. The plaintiff’s constitutional assumption, it majority’s Contrary to the “individualized and element of causation is being victim- was at risk was Clark who responsibilities on the duties and focus[es] population by heterosex- general in the ized whose acts or of each individual defendant general popula- in the ual inmates. While caused a alleged are to have omissions tion, teased and heterosexual inmates v. Mur deprivation.” Leer constitutional Id. at 189. sexually harassed Clark. (9th Cir.1988). Fur phy, 844 F.2d requested Clark’s parole officer Clark’s ther, plaintiff “must establish individ unit because to the homosexual

transfer defen as to each individual ual ... fault of harassment had been the victim Clark Id. at 634 dant’s deliberate indifference.” general population. Id. evidence added). (emphasis had sexual assaults that no also shows assault in prior to the occurred at SBDF liability supervi- examining the When I Transcript, Vols. & Reporter's this case. sors, supervisors are clear that the “It is Further, there is no II, liability, subject not to vicarious but who coerces that a homosexual evidence conduct.” only for their own liable a threat to presents “passive” homosexuals Cochise, 806 F.2d Bergquist assump- simply an This is heterosexuals. (9th Cir.1986); Hansen see also opinion majority with- tion inherent (9th Cir.1989) Black, in the evi- any support out whatsoever (“supervisory officials are not liable dence. any theory actions of subordinates liability”); Dep’t, Dental to consider the Hunt v. majority also fails vicarious Cir.1989) placing (9th (supervisor countervailing interests involved Had officials for the fault of “vicariously an inmate such Clark. is not liable the homosexual mo- moved Clark out of personnel” prison). at the dule, likely addressing a sec- would proof need for have clarified the We by an inmate victim as- tion 1983 claim fault: supervisor’s individual “passive” homosexual mo- signed to the if there exists supervisor A be liable jail officials did move Clark. dule. But the (1) involve- personal her either his or pop- general him into the They moved back deprivation, ment in the constitutional he the victim of ulation where had been (2) a causal connection between sufficient harassment, never threatened a but had wrongful conduct supervisor’s the a risk to heterosexual. This involved violation. the constitutional that beyond peradventure It is not Clark. added). Hansen, (emphasis 885 F.2d at attacked, would now if Clark had been may be causal connection” The “sufficient by him. addressing a section 1983 claim “im- supervisor the by evidence that inmates shown point placement that the The the that plement[ed] a so deficient easy and in- jail is not an task within a ” true, If this is [overcrowding].... constitutionalsuch repudiation a ‘itself is policy rights...." liability, presumably avoid sheriffs Thomp (quoting operations” jails at all which should “cease (5th 298, 304 Cir. Belt, F.2d kins that exceeds population an inmate have However, “general individual’s 1987)). perhaps they design capacity; or should opera the supervising responsibility prisoners until the arbitrarily release de- to establish prison is insufficient tions exceeded. Another sign capacity is not v. Cum involvement.” Ouzts personal transfer inmates to option might be to Cir.1987). (8th 1276, 1277 mins, facility, pre- this undercrowded but some defendants’ the individual The evidence a a fact not in evidence: that such sumes light in of these examined must be conduct course, options, of facility exists. These principles.2 by relying on Yet “over- viable. any evidence present failed to Redman subjects crowding,” majority the Sheriff Duffy. There wrongful conduct Sheriff any showing Duffy liability without that personal- Duffy was Sheriff is no evidence alleged overcrowding or knew the he about transfer of Clark in the ly involved it if he did. anything have done about could assignment the population or general jail’s Cap apparently concludes majority The There also a cell with Clark. of Redman for Redman’s responsible inju Beall is tain Duffy implemented Sheriff no evidence approved policies generated he ries because The majority. identified policies Reporter’s by the staff at the SBDF. See Duffy’s concerning Sheriff only evidence II, majority 175. The Transcript, Vol. testi- injuries is for Redman’s responsibility policy as that of the relevant identifies Duffy Sheriff mony by Captain Beall that into the aggressive homosexuals placing Re- department.” head of the was “the majority first population. The at general II, at 160. Transcript, Vol. porter’s County even “policy” to the tributes this Duffy’s liabil- majority Sheriff The bases policy and though no such had responsibili- general supervisory ity on his any that despite the absence of evidence facilities. county detention ty over all The ma Captain policy-maker. Beall was could find Sher- jury majority concludes “policy” this with a jority equates then was evidence Duffy liable because there iff for which it holds practice at the SBDF direction Duffy’s ultimate of “Sheriff responsible. Beall Captain Detention Fa- Bay the South operations at Captain Beall was re- assuming Even sufficient to is not cility.” This evidence he di- practice because sponsible for Duffy personally was show Sheriff inmates at the placement of rected the conduct, par- he wrongful in involved jail’s SBDF, into the placing neither Clark policy, implementing in a deficient ticipated in placing Redman population nor general injury. caused Redman’s or that his actions deliberately indifferent cell was Clark’s the acts imputing attempt to avoid In its security. As interest Redman’s Duffy to hold to Sheriff of subordinates B, preceding Section discussed liable, majority relies on vicariously him deliberate indiffer- did not act with officials complaint allegations unsupported jail’s general into the by placing Clark ence overcrowding Duffy linking Sheriff ignores the fact population. majority no allegations, Contrary to these jail. posed Clark is no evidence there that Sheriff produced at trial inmate while any evidence heterosexual threat for, aware responsible general population or even Duffy jail’s Clark overcrowding at SBDF. of, alleged to the homosexual prior to his transfer housing low-security approval also cites with or while majority module from the homosex- alleging his transfer complaint Sheriff after portion of the dorm Moreover, previously stat- indifference module. ual Duffy with deliberate acted ed, not aware Captain Beall was despite “continupng] operations at [SBDF] any to establish liabili- puted to other defendant examined be- Deputy conduct is not Green’s 2. case; Bergquist, ty U.S.C. § under 42 1983. in the never a cause he was defendant and, event, any not be im- his conduct in out, eloquently points Thompson so Judge prior to the the SBDF at assaults sexual case. seems to application in this of the standards assault its placing all inmates suggest policy that a a reasonable majority also concludes population unless there is general in the Captain Beall was deliber- find jury could respon- he was person is a ately indifferent because that the some clear indication gen- placement into for Redman’s sible to deliberate danger amounts danger or opinion majority population. eral words, seems to In other it indifference. partic- “recogniz[ed] a Captain Beall states facilities jail run suggest that those who inmates,” ignored young ular risk to from segregate everyone either must inmates” into “young by placing this risk else, no prove that there is everyone or ap- majority population. general If that is what mixing them. danger from a threat was Clark parently believes meant, agree, for it smacks of I cannot as was classified Redman Redman because into the judicial intrusion the kind of requiring spe- inmate and tender” “young system that we management jail evidence, how- is no housing. There cial eschew. should as a ever, ever classified Redman was any other inmate or “young and tender” Moreover, policy agree I that if a do special housing. requiring type inmate placement for the of known custom called Captain testified Beall Deputy Green and inmates with others who physically violent Redman fit the classifi- not they did believe violence, known to be vulnerable and tender” inmate “young cation least, would, jury very be a there at special requiring any type of inmate other indiffer- question on the issue of deliberate I Transcript, Vols. & housing. Reporter’s Furthermore, if that or cus- requiring spe- ence. II, Inmates not 208. general placed into the housing dangerous cial were over- tom caused were Although 176. Redman population. Id. at think facility, I should crowding of the young initially housed that, contrary, a absent evidence module, pretrial detainees often tender knowledge acqui- jury infer could jail in that module so that placed were policymakers in the decision escence easily locate the detainees officials could facility to be overcrowded. to allow the to court. Id. at transportation overcrowding would the fact Nor system is throughout our make a differ- largely driven economics CONCLUSION does not That kind of economics ence. case of the is no evidence There any rights. our constitutional define County policy which any existence event, expatiated on the economists have injury. Nor is there caused Redman’s in enforcement of individ- value to be found policy- any defendant was evidence that encourage peo- rights we wish to ual when deliberately indifferent maker or security. impos- toward ple Redman’s interest to rethink their attitudes properly court Accordingly, the district initial ing others in order to save risks on for a directed granted the defense motion I need outlays money by themselves. from the respectfully I dissent verdict. economic ar- rehearse the well known not to the con- majority opinion which holds guments here.1 trary. again However, Thompson Judge as FERNANDEZ, Judge, demonstrates, point not majority, Circuit does Dissenting: determina- justify a to evidence that would in- tion that deliberate indifference general approach of the agree I with the particular standards, but, placement of these volved legal majority to (White, J.), directly Seiter, - U.S. -, reached which were 111 S.Ct. 1. But Wilson v. cf. — at -, (The (1991) concurring by majority, U.S. 115 L.Ed.2d id. opinion expressed particular onomics, 2326-27). about ec concerns — at -, 111 S.Ct. at 2329- id. population or general prison actors events True it is that the terrible

together. and Red- showed that Clark ensued

which together. housed not have been

man should showing

That, however, cry from is a far house them was delib- the decision to resulted from a delib-

erately indifferent or fact, ap- In policy. it

erately indifferent of acts of deliber-

pears that the evidence is to be found the atti-

ate indifference jailers individual after the

tudes taken readily more

danger to Redman became person Strangely enough, the

apparent. wrongdo- directly connected with that

most defendant.

ing joined not even as a short, support here the evidence remedy; tort it will not

a common law remedy.2 tort

support a constitutional

Thus, Judge Thompson’s dissent. join I FOR

PENSION TRUST FUND ENGINEERS,

OPERATING

Plaintiff-Appellant, SHOP, A

TRIPLE MACHINE

INC., Defendant-Appellee.

No. 90-15727. Appeals,

United States Court

Ninth Circuit. 12, 1991.

Argued and Submitted June Aug.

Decided id.., Seiter,

2. Wilson v. underscores this. notes on file at sponse." ("According the dissent status As to an inmate homosexual, tender,” "reg- “aggressive” aggressive homosexu- facility, Clark was the al.”). counsel, sex offender.” repre- county istrable deputy who terms, these defendants, know who We do not chose to Clark as also referred sented the however, know, purpose. We do what arguments in favor of the “aggressive” in his by jail offi- is a used "young and tender” term 4, infra, at 1438. Final- verdict. See n. directed Testimony Bay facility. See the South at cials "registrable phrase sex ly, do not use the 172-73, Beall, Transcript at Lt. Richard Trial offender.” Moreover, panel opin- according to the 198-99. Transcript, occurred. Trial She mainline module from into the transferred however, did, report that Redman report- “was module because of homosexual assaulted, being [sexually] manipulating very afraid of coercing and ed incidents by people had threatened who for sexual favors.2 and ... been inmates the homosexual jail, anyone if he told were also cell, night in his new Redman’s first On any of the threats that had been about Red- Redman. Clark warned raped Clark him, they made to could hurt our anyone, he would harm not to tell man daughter they knew our address because family, girlfriend and her whose Redman’s Id., from letters she had sent Clifton.” from a letter address he had obtained depu- Mrs. Pearson testified that the 151.3 day Redman locker. The next Redman’s

Case Details

Case Name: Clifton Redman v. County of San Diego Capt. Richard Beall Lt. Robert Witcraft Sgt. Dan Canfield Deputy Gene Turner, and Does I Through Xx, Inclusive

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 26, 1991

Citation: 942 F.2d 1435

Docket Number: 87-6139

Court Abbreviation: 9th Cir.