OPINION
I. INTRODUCTION
The events which led to the grievous injuries suffered by plaintiff Timothy Ryan on October 4, 1983 have been fully set forth in my earlier opinion,
Ryan v. Burlington County,
The Burlington County Jail is a small two-story structure which had previously been used as an armory. The first floor, at times relevant here, consisted of dormitory housing, and the second floor consisted of six dormitory cells and four individual, maximum-security cells. Id. at 471. On April 20, 1977, and on March 28, 1978, two lawsuits were commenced by inmates of the jail asserting that the jail conditions violated the laws of New Jersey and the Constitution of the United States. In response to those cases (referred to collectively as “Vespa”), the Board of Chosen Freeholders of Burlington County (hereinafter “Board”) retained the services of a corrections expert, and both the expert and Michael Hogan, the Assistant County Solicitor, recommended that the Board attempt to settle the cases. Id. Because the Sheriff, who was the administrator of the jail, refused to sign the proposed Vespa consent decree, the Board, on May 13, 1981, adopted a resolution assuming jurisdiction, custody, and control of the jail. Id. at 472. The Vespa settlement was approved by the Honorable Dickinson R. Debevoise on June 1, 1981.
The Vespa consent decree did not contain an admission on defendants’ part that plaintiffs’ constitutional rights had been violated. It required, however, that no more than 117 inmates were to be housed at the jail on any given day, “except in emergencies,” and a maximum of eight inmates were to be placed in cell 208. Id. It also required that defendants implement, by September 1981, a classification system whereby inmates would be reviewed within sixty days of their admission to determine where they should be housed within the jail. Moreover, by June 1983, the jail was to have an “inmate reception area” and eight detention rooms for the purpose of classifying incoming inmates. Id. The consent decree also included numerous provisions for other alterations in the jail’s physical plant and administration, such as adequate lighting, heating, and plumbing, and a law library.
The day after the entry of the
Vespa
consent decree, then-Governor of New Jersey Brendan T. Byrne signed Executive Order (“E.O.”) No. 106. The order was designed to relieve the problem of overcrowding in the state and county prisons, and it directed that William Fauver, the Commissioner of the Department of Corrections (“D.O.C.”), be given the authority to designate the place of confinement of all state
and
county inmates.
Id.
at 468-69. The Supreme Court of New Jersey upheld the validity of E.O. 106 in
Worthington v. Fauver,
E.O. 106 had an immediate adverse effect upon the overcrowding problem at Burlington County Jail. Between July 1981 and February 1982, the average daily population at the jail was 157 inmates, and over the following year the average population was 147 inmates. Id. at 474. Between September 15 and October 7, 1983, the number of inmates ranged from 128 to 165, with an average daily population of 147 inmates, id.; accordingly, during this peri *627 od the Vespa inmate cap of 117 inmates was never met. The Vespa requirements of a classification system and of minimum floor area per inmate had, similarly not been met by October 1983.
On September 30, 1983, plaintiff Timothy Ryan was placed into custody at Burlington County Jail after having been arrested for a motor vehicle violation.
1
He was assigned to cell 208, which already housed nine inmates, one more than permitted by the
Vespa
decree. Four days later, while breakfast was being served in the cells, plaintiff was attacked by a fellow inmate, Maurice Scott.
Id.
at 466. Scott, who had been awaiting transfer to a state prison as a parole violator, had most recently been convicted of the receipt of stolen property.
See
Knox Aff., Exh. S. While at the Burlington County Jail, Scott had been involved in several violent attacks on fellow inmates
In April 1985, plaintiff filed the instant lawsuit, seeking compensatory and punitive damages under 42 U.S.C. §§ 1983,1985 and under pendent state law causes of action. The named defendants were William Fauver; Joseph G. Call, Deputy Director of the Division of Adult Institutions; Michael Hogan; the Board and its individual members (collectively referred to as “Board defendants”); Warden John Bradman; Captain Edgar Pierce; Sergeants William Adams and Kenneth Horton; and Corrections Officers Harry Gorham, Michael Polis, Richard Lightsey, Lewis Speight, Roosevelt McKinney, and Timothy Flournoy (collectively referred to as “Jail defendants”). In my opinion of November 9, 1987, I dismissed plaintiffs § 1985 claim, his § 1983 claims predicated upon the Fourth, Fifth, and Eighth Amendments, and his claims against Fauver and Call in their official capacities. I also granted Hogan’s motion for summary judgment on the ground of qualified immunity, while rejecting Fauver and Call’s motions for identical relief. I rejected, as well, Fauver and Call’s claim that plaintiff’s complaint did not state a cognizable § 1983 claim and their claim that their actions did not affirmatively cause the injuries to plaintiff. Plaintiff has subsequently dismissed his § 1985 claims and his pendent state law claims, the latter barred by N.J.S.A. 59:5-2(b)(4).
Presently before me are two sets of summary judgment motions. Both the Board defendants and the Jail defendants seek judgment in their favor on the ground that they are entitled to qualified immunity, and on the ground that their actions were at most negligent and do not subject them to § 1983 liability. The Board defendants also move for summary judgment on the basis of absolute legislative immunity. Decision on these motions was held in abeyance pending the review of my November 1987 opinion by the Court of Appeals for the Third Circuit, and were renewed after that decision was affirmed.
See Ryan v. Burlington County,
For the reasons that follow, the Board defendants’ motion for summary judgment will be denied in full. Similarly, the Jail defendants’ motion will be denied, except that judgment will be ordered in favor of the corrections officers on the ground of qualified immunity.
II. DISCUSSION
A. Qualified Immunity
The defense of qualified immunity serves to insulate a governmental official from liability in civil damages when the discretionary conduct of that official “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
The Supreme Court of the United States has provided the following definition of a “clearly established right”:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has been declared unlawful, but it is to say that in the light of the preexisting law the unlawfulness must be apparent.
Id.
at 3039 (citations omitted). The Third Circuit has required “some but not precise factual correspondence” between the relevant caselaw and the challenged conduct, and has required that officials “apply general, well developed legal principles.”
Stoneking v. Bradford Area School District,
In my earlier opinion in this matter, I noted two of plaintiff’s constitutional rights that were clearly established as of October 1983. First, based upon
Bell v. Wolfish,
To these two clearly established constitutional rights I now add a third: plaintiff’s right to be housed in a reasonably safe prison environment. In the context of a suit alleging sexual assault by a school teacher upon a female student, the Third Circuit found a clearly established right in the student to be protected, by the school authorities, from harm caused by the actions of third parties such as teachers.
Stoneking,
[tjhere was substantial authority by 1979 that state officials have a duty to protect institutionalized persons from self-injury *629 or assault by fellow inmates and staff, and holding that a prisoner has a constitutional right to a safe environment and that the prison officials have a corresponding duty to reasonably insure that safe environment to prisoners.
Id.
at 603 n. 14;
see Curtis v. Everette,
As I have previously observed, defendants’ motions for summary judgment should be granted if a jury could not find that the defendants’ belief in the lawfulness of the challenged actions was unreasonable.
Lee,
1. Board of Chosen Freeholders
With respect to plaintiff’s right to be free from overcrowding so severe as to constitute punishment, there is evidence of record from which a jury could reasonably conclude that the Board had before it information indicating extreme overcrowding at the Burlington County Jail. Each of the members of the Board has stated that he or she was aware of the overcrowding at the jail. See Costa Dep. 126:10-13, 131:14-17 (attached at Exh. C, Plaintiff’s Appendix in Opposition to Board Defendants’ Motion); Metzger Dep. 140:21-25 (attached at Exh. D); Conda Dep. 116:7-13, 21-23 (attached at Exh. A); 3 Shinn Dep. 61:9-24 (attached at Exh. E); Colburn Dep. 45:11-16 (attached at Exh. G). Moreover, the Board received copies of the D.O.C.’s annual in-
*630 spection reports on the conditions at the Burlington County Jail, see Bradman Dep. 61:17-62:2 (attached at Exh. B, Plaintiffs Appendix in Opposition to Board Defendants’ Motion), the last of which indicates that, from March 1,1982 through February 15, 1983, the number of inmates at the jail fluctuated between 115 (only two below the Vespa cap) and 175, with a daily average of 147 inmates. See P-8 (D.O.C. County Jail Inspection Report, dated 2/16/83). The Board was also aware that overcrowding in a prison setting posed a danger of increased combativeness and aggression among the inmates. See Costa Dep. 173-15-20; Shinn Dep. 63:19-25; see also Report of Environmental Conditions in Burlington County Jail at 18 (attached at P-99) (inadequate living space may result in “violence, aggression and defense of territory” in inmates; prepared in course of Vespa litigation).
The Board’s first response is that, although it may have known that the Burlington County Jail was overcrowded, that overcrowding was due entirely to the influx of state inmates, an influx, the Board was powerless to remedy.
See
Board Defendants’ Reply Letter Brief of 1/29/88 at 4. This contention fails for two reasons. First, the jail records for the twenty days between September 15 and October 4, 1983 reveal that the Burlington County Jail would have complied with the
Vespa
cap of 117 inmates on only two days during that period, even had
no
state inmates been present; on ten of those days, the
Vespa
limit was exceeded by at least ten inmates, even when only county inmates are considered.
4
See Ryan,
Second, and more important, the Board’s argument suffers from the erroneous assumption that the Board is insulated from any liability arising from overcrowding which resulted from the presence of state inmates. The presence of state inmates would, indeed, insulate the Board if the only solution to the overcrowding would have been to refuse to accept the state inmates, a recourse which was not available to the Board. 5 However, there is evidence in the record that the Board had available to it means by which the overcrowding at the Burlington County Jail could have been lessened or eliminated, even given the presence of the additional state inmates. Pretrial detainees (such as plaintiff) or low-risk inmates could have been moved to the county’s minimum-security prison at New Lisbon. See Expert Report of John Case, dated 9/8/86, at 9 (attached at Exh. N, Plaintiff’s Appendix in Opposition to Board Defendants’ Motion). 6 The Board, moreover, could have applied for prefabricated inmate housing units provided by the state; between 1981 and 1983, Ocean, Bergen, and Essex Counties received 48 such inmate bedspaces, Middlesex County received 24 bedspaces, and, in 1984, Hudson County received 160 bedspaces. Fauver Aff. ¶ 6 (attached at P-152).
Moreover, the Board chose not to accept state monies designated for the construction or rehabilitation of county jails under the state’s county assistance program, notwithstanding the fact that seven other counties were provided with a total of 350 additional beds under the program. Fauver Aff. ¶ 10.
7
Finally, the Board chose
*631
not to renovate the Burlington County Jail by the
Vespa
deadline of June 1983 for the reason that renovation “would be impractical and too costly.” Board Defendants’ Reply Letter Brief at 2. Even assuming this to be true, a question remains as to the reasonableness of that determination in light of the totality of the conditions at the Burlington County Jail.
See Monmouth County Correctional Institutional Inmates v. Lanzaro,
The Board’s next response to its asserted liability for the Burlington County Jail’s overcrowded condition is that it acted in pursuit of “legitimate governmental interests that justified conditions at the jail.” Board Defendants’ Brief at 30. In particular, the Board points to two such interests: the interest in maintaining an effective incarceration system during a state-wide period of overcrowding, and the interest in building a new jail while “temporarily” operating the old facility so as to avoid an overly expensive renovation of the latter structure. Id. at 30-31.
As to the first interest, it is clear from the discussion above that the Board could have undertaken efforts to lessen the overcrowding problem, none of which efforts were attempted. With regard to the second interest, there is evidence from which a jury could conclude that financial considerations were not the motivating factor behind the Board’s belated decision to build rather than to renovate. According to Warden Bradman, the Board “never told me the money was not available [and t]hat’s why we’re not doing this [i.e., renovation of the jail],” Bradman Dep. 61:11-12, and he was never given an explanation by the Board for its reluctance to renovate.
Id.
at 61:13-16. In addition, the documentation regarding the Board’s decision not to renovate, including letters and a supplementation to the
Vespa
settlement agreement, nowhere mentions that the renovation would have been exorbitantly expensive.
See
Knox Aff., Exh. N. Moreover, even were financial considerations at the root of the Board’s decision to undertake a cheaper, long-term solution rather than a more expensive, quicker solution to the overcrowding problem, it would remain for the jury to determine whether that decision was reasonable in view of the long-standing history of overcrowding at the Burlington County Jail.
8
See Shabazz v. O’Lone,
Finally, the Board contends that it could not reasonably have known that its actions (or inaction) would violate plaintiff's clearly established right to be free from overcrowding on the theory that “research has
*632
not disclosed any decision wherein individual freeholders were found liable to an inmate or detainee for the deprivation of a protected liberty interest.” Board Defendants’ Brief at 29;
see
Board Defendants’ Supplemental Letter Brief of 1/9/89 at 4. As observed by both the Supreme Court and the Third Circuit, however, it is not necessary for the precise action (or the precise actors) challenged in a current lawsuit to have previously been found unlawful in order for a qualified immunity claim to be defeated.
See Anderson,
With respect to plaintiff’s second clearly established right — the right to be housed separately from known dangerous convicted inmates who pose a threat to personal security — there is sufficient evidence to support the conclusion that the Board was aware that no inmate housing classification system was, or ever had been, in place at the Burlington County Jail. The lack of such a classification system was noted during the Vespa litigation and in the state’s annual inspection reports, which reports were provided to the Board. See Report of February 6,1981 (P-17); Report of August 12, 1982 (P-16); Report of February 16, 1983 (P-8). The Board members contend, however, that they did not violate plaintiff’s right to classification because that right is limited to a right to be housed separately from known dangerous convicted inmates, and the Board was not (and could not have been) aware that known dangerous convicted inmates were being placed in cells with pretrial detainees. 9 See Board Defendants’ Reply Letter Brief at 6.
The Board, however, misconceives the nature of plaintiff’s right to classification by narrowly interpreting the language of my earlier opinion. The right possessed by plaintiff as of October 1983 was not simply a right to be housed separately from known dangerous inmates. Rather, it was a right to a classification system that would identify those dangerous inmates and place them in housing separate from pretrial detainees such as plaintiff. Certainly, that was the right recognized by
Jones v. Diamond, supra,
upon which this Court and the Third Circuit relied in determining plaintiff’s clearly established rights.
See
Moreover, the Board’s reading would lead to an anomalous result. Under its reading, prison authorities could (and here did) fail to establish a classification system, which system would have identified dangerous inmates, and then contend that they are not liable for inmate assaults because they did not know that the assaulting inmate was dangerous. Plaintiff necessarily possessed both a right to be housed separately from dangerous inmates and a right to a classification system that would achieve that result. That the Board failed to institute the classification system, and thereby failed to identify Maurice Scott as dangerous, does not entitle it to qualified immunity.
There is also evidence in the record to support a finding that the Board violated plaintiff’s third clearly established right, the constitutional right to a safe prison environment. As observed by the Third Circuit, this right imposes upon prison authorities “a corresponding duty to reasonably insure that safe environment to pris
*633
oners.”
Stoneking,
Warden Bradman testified in his deposition that each year from 1981 through 1985 he requested funds for additional security personnel from the Board. Bradman Dep. 48:20-23. In particular, Bradman requested the addition of one training sergeant and four corrections officer positions on August 27, 1981, see Exh. M to Plaintiffs Appendix in Opposition to Board Defendants’ Motion at 2; the addition of two corrections officer positions on October 7, 1981, id. at 6; and the addition of ten corrections officer positions on May 10, 1982. 10 Id. at 15. On October 29, 1982, Bradman again requested ten additional corrections officers, noting in a memo to the Board that “[p]resent minimum requirements for officers per shift is not adequate to maintain the necessary levels of safety and custody for officers, employees and inmates within the facility.” Brad-man Dep. 49:24-50:2; see also Exh. M at 16 (Bradman memo to Board of August 10, 1982, noting that “there is currently a substantial shortage of Correction Officers assigned” at the jail). In response to these requests for additional corrections officers, the Board authorized the hiring of three additional corrections officers in 1984. See Bradman Dep. 51:4-21. As for the midnight to 8 a.m. shift, during which shift plaintiff was attacked, the warden’s request for two additional officers was not granted until January 1984, so that Brad-man considered the shift to have been understaffed as of October 1983. Id. at 55:23-56:14. A jury could conclude from this evidence that the Board could not have reasonably believed that its refusal to supply Burlington County Jail with additional security personnel, when the warden of the jail requested the personnel as necessary for the security of the inmates, was lawful, in view of the inmates’ right to a secure environment. 11 As such, the Board defendants are not entitled to summary judgment as to this claim on the ground of qualified immunity.
2. Jail Defendants
a. Bradman and Pierce
Bradman was hired by the Board after the Board assumed control of the Burlington County Jail by resolution dated May 13, 1981. See Conda Dep. 15:24-25. As warden, Bradman was responsible for the day-to-day operation of the jail. See id.; Jail Defendants’ Brief at 5. Pierce held the position of captain as of October 1983, and advised and assisted the warden in setting weekly schedules, in formulating rules and regulations for security and for operating the jail, and generally in the administration of the jail on a daily basis. See Pierce Dep. 19:11-20:9 (attached at Exh. A, Plaintiff’s Appendix in Opposition to Jail Defendants’ Motion); Jail Defendants’ Brief at 3. In sum, Warden Bradman had the authority to alter the day-to-day operation of the jail in any manner in which he saw fit, and Captain Pierce had the responsibility of advising and assisting Warden Bradman with respect to the operation of the jail. It is in light of these powers and responsibilities that Bradman and Pierce’s defense of qualified immunity must be examined.
Insofar as plaintiff’s right to be free from overcrowding is concerned, both Bradman and Pierce were aware of the overcrowded conditions at Burlington County Jail. See Bradman Dep. 31:23-32:8 (attached at Exh. A, Plaintiff’s Appendix in Opposition to Jail Defendants’ Motion); *634 Pierce Dep. 81:22-24. Warden Bradman had at his disposal at least two avenues by which the overcrowding could have been lessened: he could have aggressively sought to transfer minimum-security prisoners and pretrial detainees to the minimum-security New Lisbon facility, see Case Expert Report at 9, and he could have accepted, rather than rejected, the state’s offer of monies for renovating or constructing jails under the county assistance program. See infra n. 6 and P-62. Thus, as with the Board, Bradman’s contention that E.O. 106 vested sole authority in Commissioner Fauver to deal with the placement of state inmates (see Jail Defendants’ Reply Letter Brief at 4) cannot support his qualified immunity defense, for a jury could conclude that the warden neglected to attempt available solutions to the overcrowding at Burlington County Jail. As such, he is not entitled to summary judgment regarding this claim. 12
Both Bradman and Pierce knew that the Burlington County Jail had not instituted any classification system as of October 1983, and they do not contest that knowledge. I have previously found a factual dispute as to whether the physical plant of the Burlington County Jail permitted classification in October 1983.
See Ryan,
Finally, Bradman and Pierce were also responsible for taking reasonable measures to ensure that a safe prison environment existed at Burlington County Jail. All Jail defendants (including Bradman and Pierce) concede, for purposes of these motions, that they were aware that Scott had been involved in prior fights during his incarceration. 13 See Jail Defendants’ Reply Letter Brief at 3. Moreover, a jury could find that the frequency with which fights occurred during mealtimes, see Horton Dep. 114:3-8 (attached at Exh. C, Plaintiff’s Appendix in Opposition to Jail Defendants’ Motion); Polis Dep. 37:20-38:7 (attached at Exh. H); Lightsey Dep. 34:10-13 (attached at Exh. I): Speight Dep. 123:1-2, 15-17 (attached at Exh. J), was a condition that was or should have been known to Bradman and Pierce, as the chief administrators of the jail. With this knowledge, Bradman and Pierce failed to designate Scott as a state inmate to be transferred back to a state institution, see Cooper Dep. 52:20-53:3 (attached at Exh. X) (Cooper, Bradman, and Pierce could designate any state inmate for transfer to a state prison), even though approximately twenty state inmates were transferred from the Burlington County Jail to state prisons during the period of Scott’s incarceration. See P-66, at 9-11. They also failed to have at least one corrections officer assigned to roam the second floor during mealtimes and to *635 monitor the cells, as opposed to having all three officers serve meals in the cells at the same time. Given the frequency of mealtime fights, and given that activity in one cell could not be heard by officers in another cell, see Flournoy Dep. 42:21-25 (attached at Exh. M), Bradman and Pierce should reasonably have known that security arrangements on the second floor of Burlington County Jail during October 1983 were deficient. 14 See Case Expert Report at 10.
b. Sergeants Adams and Horton
Plaintiff does not appear to contend that Sergeants Horton and Adams had any authority to remedy the overcrowding situation at the Burlington County Jail. See Plaintiffs Brief at 25-27. Moreover, they lacked the authority to institute a classification system, even though each attempted to undertake inmate classification on an ad hoc basis. See Horton Dep. 114:9-11, 14-18; 115:7-11 (classified inmates according to nature of charges, appearance, and available space); Adams Dep. 10:17-25 (attached at Exh. D, Plaintiffs Appendix in Opposition to Jail Defendants’ Motion) (inmates charged with “serious crime[s]” would be placed in individual cell; all others housed according to availability of space). Accordingly, I find that a jury could not determine that Sergeants Adams and Horton’s belief in the lawfulness of their actions was unreasonable, at least insofar as regards plaintiff’s right to be free from overcrowding and to be provided a classification system.
With respect to plaintiff’s right to a safe prison environment, however, the sergeants’ qualified immunity defense must fail. Both Sergeant Adams, Adams Dep. 15:21-16:8, and Sergeant Horton, Horton Dep. 167:15-168:6, had the authority to transfer inmates from the dormitory cells to the individual cells at the Burlington County Jail. Both were aware that Scott had been involved in various altercations at the jail during his time there, and both were (or reasonably should have been) aware that the overcrowded conditions at the jail and the understaffed security force made aggression among inmates all the more likely. See Adams Dep. 24:9-12, 25:2-6. Despite this knowledge, neither Adams nor Horton attempted to transfer Scott to an individual cell. 15 Because a jury could find that the failure to do so, in light of plaintiffs clearly established right to a safe prison environment, could not reasonably have been considered lawful, summary judgment as to this claim would be inappropriate. 16
c. Corrections Officers
As with the sergeants, plaintiff does not argue that the corrections officers had any authority to rectify the overcrowding problem at Burlington County Jail. See Plaintiff's Brief at 23-26. The corrections officers also did not have the authority to institute a formalized classification system at the jail, for that responsi *636 bility fell to Bradman and Pierce. Plaintiff argues that the officers failed to provide plaintiff with a safe prison environment by failing to recommend the transfer of Scott to an individual cell, id. at 23-25, and by failing to have at least one officer roam the second floor during mealtimes, rather than having all three serve meals together. Id. at 25-26. A jury could not properly find that the corrections officers acted unreasonably in failing to recommend Scott’s transfer, when the officers, who were without the authority to effect that transfer, relayed to the sergeants (who could transfer Scott) their belief that Scott was dangerous. See, e.g., Lightsey Dep. 43:16-19. Having placed that information in the sergeants’ hands, the officers could not reasonably have expected that to fail to go further and recommend Scott’s transfer would subject them to personal liability. Similarly, because plaintiff has not even established that the sergeants, much less the corrections officers, had the authority to order an officer to roam the second floor, the corrections officers were under no duty to alter the regimen prescribed for them by their superiors and take it upon themselves to monitor that floor. As such, the corrections officers are entitled to judgment in their favor on the ground of qualified immunity. 17
B. Section 1983 Liability — Davidson and Daniels
As an initial matter, defendants apparently do not dispute that plaintiff possessed, in October 1983, a protected liberty interest, under the Fourteenth Amendment, in being protected from an assault by a fellow prisoner. In any event, it is clear that such an interest exists. The Supreme Court has observed that prison administrators “are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves,”
Hudson v. Palmer,
Defendants assert,
en masse,
that their actions here constitute, at worst, mere negligence, and that as such those actions cannot form the basis of a valid § 1983 claim.
See
Jail Defendants’ Brief at 14-20; Reply Letter Brief at 2-3; Board Defendants’ Brief at 14-19. In so contending, they rely upon the holdings of
Daniels v. Williams,
The logical starting point for consideration of defendants’ argument is the Supreme Court’s opinion in Davidson. The facts of that case were as follows:
On December 19, 1980, petitioner was threatened by one McMillan, a fellow inmate ... Petitioner sent a note reporting the incident that found its way to respondent Cannon, the Assistant Superintendent of the prison, who read the note and sent it on to respondent James, a Corrections Sergeant. Cannon subsequently testified that he did not view the situation as urgent because on previous occasions when petitioner had a serious problem he had contacted Cannon directly.
James received the note at about 2 p.m. on December 19, and was informed *637 of its contents. James then attended to other matters, ... and left the note on his desk unread. By the time he left the prison that evening James had forgotten about the note ... Petitioner took no steps other than writing the note to alert the authorities that he feared an attack____ On Sunday, December 21, McMillan attacked petitioner____
The Third Circuit has held, however, that § 1983 liability may derive from the assault of one inmate by another. Such liability would attach if the assault were shown to have resulted from “intentional conduct, gross negligence or reckless indifference [on the part of state actors], or an established state procedure.”
Davidson,
In
Frett,
the evidence at trial disclosed that inmate Soto had exhibited a history of violent behavior in his two years in prison, and that prison authorities were aware of this history. On the day in question, Soto struck a fellow inmate, David, over the head with a rock, in the presence of officer Smith.
In response to the government’s contention on appeal that its motion for entry of judgment notwithstanding the verdict had been wrongly denied by the trial court, the Third Circuit examined whether Smith (on whose liability the government’s liability rested) could have been found to have acted in reckless disregard of David’s rights. In affirming the denial of the j.n.o.v. motion, the Third Circuit observed that officer Smith had witnessed the initial attack by Soto, had heard Soto’s threat, and had three officers available to assist in subduing Soto. Instead of apprehending Soto, officer Smith chose not to pursue him, perhaps out of fear for his own safety. Id. at 978. The Frett court continued:
Smith’s testimony evidences a knowledgeable choice of a course of action in the face of a known risk, not forgetfulness or inadvertence. That risk was of such a nature and degree that to disregard it was a gross deviation from the standard of care a corrections officer should have exercised in the situation.
Id. The jury, therefore, had sufficient evidence from which to conclude that by failing to apprehend Soto, Smith had acted in reckless disregard of David’s rights.
The Supreme Court has also provided an example of what constitutes reckless disregard by a prison official for an inmate’s safety. In
Smith v. Wade,
As noted
supra,
defendants argue that their actions were no more egregious than the prison officials’ actions in
Davidson,
and, thus, that they may not be held liable under § 1983. It is clear to me, however, that these defendants — the Board, Warden Bradman, Captain Pierce, and Sergeants Adams and Horton — engaged in action that was considerably more culpable than that of the
Davidson
defendants. In
Davidson,
the officials received one note, with no indication of the seriousness of the threat and no personal follow-up by the prisoner (as was his usual practice in serious cases). One official underestimated the threat’s seriousness while the other forgot about the note.
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Moreover, the Third Circuit has on a number of occasions noted that a prison official’s deliberate failure to act may result in § 1983 liability. In “providing] examples of conduct beyond mere negligence” in
Davidson,
the court observed that “when officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such a failure would support a claim under § 1983.”
The evidence in the record before me would clearly enable a jury to find that the remaining defendants’ failure to act, in light of their knowledge of the conditions at the Burlington County Jail and (excluding the Board) their knowledge of Scott’s dangerousness, was sufficiently deliberate to implicate the Due Process Clause and support a § 1983 claim. The Board made deliberate decisions not to pay for immediate renovation of the jail, but instead to build a new facility at a later date; not to accept state aid, in the form of the county assistance plan or the pre-fabricated prison units; not to accede to Warden Bradman’s repeated requests for additional security staff; and not to insist on a classification system at the jail, knowing that such a system was mandated by Vespa. Warden Bradman made a deliberate decision not to accept state aid, and he and Captain Pierce made deliberate decisions not to put in place any classification system; not to transfer Scott, whom they knew to be dangerous, to an individual cell or to a state institution; and not to assign a corrections officer to monitor the second floor. Sergeants Adams and Horton made a deliberate decision not to transfer Scott, about whose violent tendencies they had been warned by the corrections officers, to an individual cell. These defendants could be found to have deliberately failed to act in the presence of conditions that they knew or should have known posed a great risk of injury to inmates at the Burlington County Jail. In the event a jury made such a finding, a § 1983 claim would properly lie against these defendants.
C. Legislative Immunity
The Board defendants contend that their decision to operate the existing Burlington County Jail while building a new one and their decision to not pay for additional security officers were legislative acts and, thus, that they are entitled to absolute immunity for any liability arising from those decisions. Because plaintiff would not have been injured had the Board decided to renovate rather than build or decided to hire additional staff, the argument continues, the Board members must be granted absolute legislative immunity. Board Defendants’ Brief at 34-38; Reply Letter Brief at 6-9. For the following reasons, I reject that argument.
The Third Circuit has acknowledged that the doctrine of absolute legislative immunity, as first articulated in
Tenney v. Brandhove,
As an initial matter, I harbor strong doubts that the decisions by the Board to build a new jail and to refuse to hire additional jail staff could be considered legislative in nature. The Third Circuit, in
Rogin v. Bensalem Township,
In any event, the Board’s decision not to expend the money required to renovate or staff the Burlington County Jail was not reached in a legislative manner. In
Abraham,
the Third Circuit held that the municipal board’s decision to discharge a township director was not a legislative act, because in making the decision the board did not follow the procedural rules prescribed by Pennsylvania statute for legislative enactments by municipal boards.
The Board points to no ordinance regarding the renovation or operation of the Burlington County Jail, nor even a resolution regarding those issues. The only relevant document before me is an amended settlement agreement in the Vespa litigation, dated June 20, 1984 (some eight months after plaintiff’s injury), providing that the parties agree that the Board may replace the Burlington County Jail instead of renovating it. Knox Aff., Exh. N. There is no resolution or ordinance referenced therein; it is merely stated that the Board “has determined that it is in the best interest of Burlington County to construct a new jail facility.” Id. On this showing, no legislative act has been demonstrated by the Board defendants, and no legislative immunity attaches to the Board’s actions herein. The Board’s motion is therefore denied.
For the foregoing reasons, the motions for summary judgment brought by the Board defendants and by the Jail defendants are denied, except that the summary judgment motion of the corrections officers is granted on the ground of qualified immunity. An appropriate order will issue.
Notes
. Ryan was held because he could not post bail for his past traffic violations.
Ryan v. Burlington County,
. The Supreme Court has recently held, in
DeShaney v. Winnebago County Dep’t of Social Services,
— U.S.-,
when the State takes a person into custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter,, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.
Id.
— U.S. at-,
. Conda also testified that it was his practice to not read any document over one page in length. Conda Dep. 73:6-9.
. I accordingly cannot accept the Board defendants’ assertion that, over this period, the jail would have either met or been close to the Vespa limit. See Board Defendants’ Reply Letter Brief at 2.
. There was, of course, the possibility of filing suit against the state to compel a transfer of the state prisoners from county to state jails, as had been successfully done by two counties prior to October 1983, and which was eventually done by Burlington County in 1985.
Ryan,
. There is one letter in the record indicating that Freeholder Conda sought to pursue this remedy. See P-18 (letter from Conda to Brad-man, dated 11/10/81). There is no evidence either that Conda attempted to follow-up the warden’s inaction concerning the suggestion, or that any other Board member (all of whom received copies of this letter) pursued this remedy.
. By letter to Bradman dated October 4, 1982, Fauver offered assistance to Burlington County under the county assistance plan. See P-61. *631 By letter dated October 20, 1982, Bradman declined the offer, and Freeholder Metzger was sent a copy of that letter. See P-62. There is no indication that the Board did not authorize or did not agree with Bradman’s rejection of Fauver’s offer, and the Board certainly made no attempt, after receipt of a copy of Bradman’s letter, to reverse his decision refusing the state’s offer of assistance.
. The reasonableness of any decision made by the Board in light of financial constraints cannot be determined on this record. The Board defendants have submitted no evidence concerning the estimated costs of renovating the jail, the estimated costs of building a new one, or the full budget for Burlington County during the relevant period.
. The Board defendants do not concede that dangerous convicted inmates were housed with pretrial detainees, nor do they concede that Scott was a dangerous convicted inmate. See Board Defendants' Reply Letter Brief at 6.
. The May 10 request is especially significant for it sought funding for a doubling of the number of officers patrolling the second floor of Burlington County Jail. As noted, plaintiffs cell was on that floor.
. Its obligation to provide the Burlington County Jail with sufficient staffing was clearly recognized by the Board. See Conda Dep. 15:12-15 ("we were to provide the facility and the proper staff to operate it").
. I find that Captain Pierce is entitled to summary judgment as to this claim. There is no evidence that he was consulted by Bradman regarding any possible solutions to the overcrowding problem, and he is not mentioned by expert Case as having neglected solutions to the problem. Moreover, his name does not appear on Bradman’s letter to Fauver of October 1982, in which letter Bradman rejected participation in the county assistance plan.
. Prison officials at the jail knew, or should have known, that Scott had been arrested seven times between 1978 and 1983 on 27 charges of, inter alia, burglary, larceny, and assault, see Case Report at 13; that he owed money to the Violent Crime Compensation Board, indicating that he had committed a crime causing serious injury to another individual, id. at 13-14; that he had, during his time at the Burlington County Jail, been involved in an incident in which an inmate suffered a broken nose, Polis Dep. 64:11-17, and in at least three other incidents, Lightsey Dep. 58:4-8; and that he was known to have harassed white inmates. Id. at 59:16-22; Butler Aff. at 2 (attached at Exh. V to Plaintiffs Appendix in Opposition to Jail Defendants’ Motion).
.Plaintiff asserts that no investigation was conducted by the Jail defendants with respect to the Fisher incident (the inmate whose nose was broken by Scott). See Plaintiffs Brief at 6. I have not been presented with the portion of Lightsey deposition referenced in plaintiffs brief, and the only other evidence of a lack of investigation is in the deposition of Fisher, who was not in a position to know what independent investigation may have been conducted by jail officials. In any event, no evidence has been proffered indicating that the jail had a policy of not investigating incidents, and there is some evidence that incident reports were prepared as a matter of policy. See Adams Dep. 16:12-17, 16:22-17:3. As such, I will not consider the adequacy of the jail’s investigative procedures on these motions.
. Lightsey was told by Sergeants Adams and Horton that Scott would be transferred if he became "uncontrollable.” Lightsey Dep. 44:8-12. There is no further elucidation as to what more Scott would have to have done in order to have been considered uncontrollable.
. Plaintiff states that Sergeants Adams and Horton had the authority to assign an officer to rove the second floor, Plaintiffs Brief at 28, but there is no documentary evidence cited to support this assertion. The Manual for the Burlington County Jail states that the sergeants had the authority to "make post assignments,” but it is unclear whether this gave the sergeants the authority to assign the corrections officers to any position deemed advisable for security, or whether it only gave them the authority to assign individual officers to pre-determined posts.
. Plaintiff nowhere in these extensive submissions mentions, as the Third Circuit had mentioned, that plaintiff was handcuffed and shackled in the prison infirmary before being taken to the hospital.
. See also Restatement (Second) of Torts, § 500 (emphasis added):
. The Third Circuit interpreted
Colburn
in
Freedman
v.
City of Allentown, Pa.,
. These cases are to be distinguished from
Chinchello v. Fenton,