Dоuglas D. Webb, Appellant, v. Lawrence County, South Dakota; Charles Crotty, in his individual capacity and official capacity as
No. 96-2096
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: December 10, 1996 Filed: May 14, 1998
McMILLIAN, Circuit Judge.
Douglas D. Webb appeals from a final order entered in the District Court1 for the District of South Dakota granting summary judgment in favor of defendants Lawrence County, Charles Crotty, the sheriff of Lawrence County, and John Doe and Jim Doe, employees of the sheriff‘s department (collectively defendants), on his
The district court had subject matter jurisdiction of this
The following statement of facts is taken in large part from the memorandum opinion and order of the district court. Webb and an aсcomplice committed various crimes in South Dakota and Wyoming. After Webb was apprehended, he spent several months in jail in Wyoming, and in October 1993 he was transferred to the Lawrence County jail to face the pending South Dakota charges. He was placed in maximum security. At the time Webb was 19 years old, about 5‘4” tall and weighed about 120 pounds. Defendants did not place him in one of two minimum security sections in the jail because they wanted to separate him from his accomplice (the accomplice had been placed in one of two minimum security sections) and because the other minimum security section was full. Initially, Webb shared a cell with another inmate. Then Webb moved into a cell with Greg Wyman, another maximum security inmate. Apparently Webb‘s first cellmate was leaving the jail and Webb did not want to share a cell with incoming federal prisoners. Defendants knew that Wyman had been convicted of sex offenses, specifically, rape and sexual contact with a minor.
At night the maximum security cells are locked down. During the day the inmates can move around in the commons area. There is an emergency alarm button located in the commons area, but the alarm is not accessible when the cells are locked down at night. There is also a security surveillance camera in the maximum security section, but the camera does not provide a view inside the individual cells. Defendants stated that jailers checked the cells every 30 minutes; however, Webb stated that jailers only came into the cell block once a day.
In December 1994 Webb filed this civil rights action in federal district court against defendants alleging violations of his constitutional rights and state tort law. He alleged defendants demonstrated a reckless disregard for his constitutional rights by failing to protect him from inmate violence in violation of the Eighth Amendment (count I). He alleged defendants transferred him to Wyman‘s cell even though they knew Wyman was a sexual predator, failed to properly supervise thе cell block, failed to develop adequate protection or policies to minimize or eliminate inmate sexual assaults, failed to stop double-celling inmates, and failed to adequately classify and segregate inmates. In his pendent state tort claim,2 Webb alleged essentially the same acts and omissions as those alleged in his constitutional claim. He specifically alleged that defendants failed to adequately protect him from inmate sexual assault, despite his obvious vulnerability to such assault because of his youth, physical size, and status as a new admittee to the jail.
Defendants filed a motiоn for summary judgment on count I and a motion to dismiss count II for failure to state a claim. The district court granted summary judgment in favor of defendants on the constitutional claim (count I) because Webb failed to present any evidence that defendants had reason to suspect that inmates in the jail faced a substantial risk of sexual assault from other inmates. 950 F. Supp. at 965 (noting that although inmate rape and assault is pervasive in nation‘s prison system, pervasiveness is not sufficient to put defendants on notice of excessive risk of serious harm in absence of evidence or allegations that inmate rape was common occurrence in this jail). The district court also dismissed the state negligence claim (count II) because defendants were protected by sovereign immunity. Id. at 967. The district court held that the county had not waived sovereign immunity by purchasing liability insurance. Id. The district court also held that federal law did not preempt the sovereign immunity defense and that sovereign immunity did not deny a judicial remedy in violation of the state constitution‘s open courts provision,
EIGHTH AMENDMENT CLAIM
Webb first argues the district court erred in granting summary judgment in favor of defendants on his constitutional claim (count I) because there was no evidence that defendants were deliberately indifferent to his safety аs a matter of law. He argues that there was circumstantial evidence of a substantial risk of serious harm because defendants knew that Wyman was a sexual predator who obviously posed a substantial risk of serious harm especially to young and physically slight inmates. Webb argues defendants disregarded that obvious risk and thus failed to protect him from inmate assault. We disagree.
We review the grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a mаtter of law.
Webb‘s constitutional claim is based on an alleged violation of his Eighth Amendment rights.
The Eighth Amendment to the United States Constitution proscribes the infliction of “cruel and unusual punishments.” The Supreme Court counsels that this amendment imposes upon prison officials the duty to “provide humane conditions of confinement.” That duty, among other things, requires those officials to take reasonable measures to “protect prisoners from violence at the hands of other prisoners.” The Eighth Amendment imposes this duty because being subjected to violent assaults is not “part of the penalty that criminal offenders pay for their offenses.”
In order to prevail on an Eighth Amendment failure-to-protect claim, [an inmate] must make two showings. First, [the inmate] must demonstrate that [he or she is] “incarcerated under conditions posing a substantial risk of serious harm.” The second requirement concerns the state of mind of the prison official who is being sued. It mandates that the [inmate] show that the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” This subjective requirement is necessary because “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”
Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825 (1994); other citations omitted); see also Erickson v. Holloway, 77 F.3d 1078, 1080 (8th Cir. 1996).
We agree with the district court that Webb failed to create a genuine issue of material fact under Farmer v. Brennan‘s subjective knowledge standard. There was no evidence that defendants actually knew that Wyman posed a substantial risk of harm to Webb. Although defendants knew that, in general, inmate rape and assault is pervasive in this nation‘s prison system, there was no evidence or allegations that inmate rape is a cоmmon occurrence in this particular jail. Although defendants knew that Wyman was a sexual offender, there was no evidence that Wyman had assaulted any other inmates or caused any problems while incarcerated. Defendants also knew that Webb had requested Wyman as a cellmate. Defendants were not aware of Wyman‘s threats or assaults because Webb did not report them; however, once they learned of the assaults, they immediately moved Webb out of the cell.
We also agree with the district court that defendants’ knowledge was insufficient to satisfy the lesser objective knowledge standard this circuit apрlied in prisoner assault cases before Farmer v. Brennan. Cf. Falls v. Nesbitt, 966 F.2d 375, 379 & n.5 (8th Cir. 1992) (noting in pre-Farmer v. Brennan case that a single episode of violence, without warning or suspicion, is insufficient to establish a pervasive risk of harm, particularly when plaintiff views attack as an isolated incident). Even assuming for purposes of analysis that the risk of sexual assault faced by young, physically slight inmates like Webb was obvious, and thus sufficient to put defendants on notice of its existence, ”Farmer [v. Brennan] specifically rejects the idea that liability may be found when a risk is so ‘obvious that is should [have been] known.‘” Jensen v. Clarke, 73 F.3d at 811, citing Farmer v. Brennan, 511 U.S. at 836.
STATE NEGLIGENCE CLAIM
Webb next argues the district court erred in dismissing his state negligence claim (count II) for failure to state a claim upon which relief could be granted.
As a preliminary matter, defendants argue the waiver of sovereign immunity issue has not been preserved for appellate review. However, Webb raised the issue in the district court in his brief in response to defendants’ motion for judgment on the pleadings on count II. Appellant‘s Appendix at 41-42.
Defendants argued in the district court that sovereign immunity barred Webb‘s state negligence claim, citing
insurance did not operate as a waiver of sovereign immunity because
In Siefkes the principal controversy involved the record title to an alfalfa field, specifically the existence of a right of way easement over either or both the east and west parts of the field. In the first action the owner of the east part (Siefkes) sued the title company and its surety for damages, alleging that his property was encumbered by the easement which was not shown by any entry in the abstract of title prepared and certified by the title company. The title company then brought a third party action against the county register of deeds seeking indemnity for negligent indexing. The state trial court directed the owner of the west part (Herzog) be joined as a real party in interest. The title company filed a third party action against Herzog. Siefkes then amended his complaint to seek a declaratory judgment that the west easement existed and the east easement did not. Herzog then filed a third party action against the title company for failure to include the west easement in the abstract of title рrepared and certified by the title company and against the former owners of the west part. The title company also filed a third party action against the county register of deeds alleging that the west easement was also not indexed.
After reviewing in detail the various property transfers, the court identified two distinct
The court then examined the question which is at issue in the present case, that is, whether the county had waived sovereign immunity by purchasing liability insurance. Sovereign immunity applies to political subdivisions of the state, such as counties, townships and school districts. The title сompany argued that the county, acting as an agent of the state, waived sovereign immunity by purchasing liability insurance pursuant to
The court acknowledged in a footnote that the legislature had enacted
entity, other than the state, but did not apply it because the provision went into effect on July 1, 1986, well after all the property transfers occurred, and had no retroactive effect. 437 N.W.2d at 103 n.3; see Ritter v. Johnson, 465 N.W.2d 196, 198 n.3 (S.D. 1991) (refusing to reach constitutionality of waiver provision because it did not go into effеct until after accident at issue and has no retroactive effect). Counties are included in the statutory definition of the term “public entities.”
Brown v. Egan Consolidated School District No. 50-2, 449 N.W.2d 259, 262 (S.D. 1989) (Brown), shows how
judgment, claiming that another statute,
The school board of any school district may acquire, own, operate, or hire buses for the transportation of students to and from its schools either from within or without the district or for transportation to and from athletic, musical, speech, and other interscholastic contests in which participation is authorized by the school board. If the use of a school bus is granted by the school board pursuant to subdivision (1) or (8) of
§ 49-28-2 [excluding certain motor vehicles from the definition of motor carriers for the purpose of regulation under the Public Utilities Commission (PUC)], the school distriсt is not liable for suit or damages which may arise as the result of the use.
The school district argued the exemption from liability applied to its use of buses for student transportation. The state supreme court disagreed, holding that the exemption of liability lаnguage did not apply to the school district‘s use of buses to transport its own students to and from school or interscholastic contests, but instead only to renting or granting use of the buses to nonprofit organizations for their purposes. 449 N.W.2d at 261. The court noted that
The court rejected, without further explanation, the school district‘s statutory sovereign immunity argument that there are three independent bases for sovereign immunity, with individual statutes such as
For many years, this court held unequivocally that school districts were immune from tort actions because they are state agencies wielding a distributive portion of the sovereign power of the state. . . . After the passage of SDCL 21-32-15 in 1981, it appeared that school districts had waived sovereign immunity if the commissioner of administration purchased liability insurance. But in Holland v. Yankton School Dist. 63-3, 375 N.W.2d 199 (S.D. 1985), a case where school district employees spilled hot soup on a student, we held that school districts were not one of the state agencies that was included in the liability coverage purchased by the commissioner of administration and upheld summary judgment in the case because sovereign immunity had not been waived.
We surmise that the legislature sought to overcome this problem in 1986 by authorizing school districts to waive sovereign immunity under the rubric of “public entities.”
SDCL ch. 3-21, enacted as Chapter 4 of the Session Laws of 1986, is entitled “Liability for Public Entities and Public Officials.” SDCL 3-21-1(1) defines public entities. . . . [as] the state of South Dakota, all its branches and agencies, boards and commissions. . . . [and] also includes all public entities established by law exercising any part of the sovereign power of the state, including, but not limited to municipalities, counties, school districts . . . .
Id. (the public entity definition is now in
The present case is similar to Brown except that the public entity is a county instead of a school district. The distinction noted in Siefkes between the purchase of insurance by the state or by the county is not relevant in the present case because
However, because we agree with the district court that
“Statutory immunity” is related to sovereign immunity or at least to the concept of “official” immunity. See Comment, 28 S.D. L. Rev. at 318, 324-33 (distinguishing sovereign immunity meaning “governmental” immunity of state and political subdivisions from “official” immunity afforded public employees sued in representative capacity or for discretionary acts). The terms are confusing. Nonetheless, we do not think the South Dakota Supreme Court would hold that the application of “statutory immunity” in the present case is necessarily inconsistent with Brown‘s rejection of “the special variety of [statutory] sovereign immunity urged by [the school district]” in that case.
First, unlike Brown, the present case does not involve potentially overlapping insurance coverage. Next, because the court in Brown construed the statute to preclude any possible stacking of liability coverage and concluded that the “liability aspect” of the statute was inapplicable, it did not have to construe the “liability aspect” of the statute. 449 N.W.2d at 261 (
Finally, construing
We agree with the district court that the statutory immunity defense applies only to defeat a tort claim arising under state law.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.