Timothy Taylor v. Michigan Department of Corrections

remarks, introductory and Weston later argument appeal.

raised this on direct How-

ever, record did not contain the because the

introductory given remarks the trial

court, the Louisiana Court did not

address claim. simply

The remarks Weston refers to were

introductory remarks and not instruc- Moreover, they

tions. even if were instruc-

tions, challenge Weston does not their accu-

racy, required and reversal would have been only

in the state courts were inade- Hawthorne,

quate. State v. See 623 So.2d denied, (La.App.), writ 629 So.2d (1993). Accordingly, there was no due

process violation.

C. Assistance Counsel: Ineffective argues

Weston that his trial counsel in preparing

rendered ineffective assistance appeal

the direct since he failed to obtain However,

complete record. as discussed

above, complete, even if the record possibility

there was no for reversal because argue

Weston did not that the oral remarks Thus,

were erroneous. Weston cannot show

prejudice for this claim. See Washington,

Strickland v. 466 U.S.

Accordingly, the district court’s denial of petition hereby

Weston’s AFFIRMED.

Timothy TAYLOR, Plaintiff-Appellant,

MICHIGAN DEPARTMENT CORRECTIONS, al.,

OF et

Defendants-Appellees.

No. 94-1479. Appeals,

United States

Sixth Circuit.

Oct. MERRITT, Judge; KEITH

Before: Chief WELLFORD, Judges. Circuit MERRITT, C.J., opinion delivered the court, KEITH, J., joined. which WELLFORD, 84-88), (pp. J. delivered a opinion. separate dissenting MERRITT, Judge. Chief summary appeals grant Plaintiff judgment § of the this 1983 action favor defendant, remaining former Dale Warden of the state of southern Mich- igan. plaintiffs Eighth The Amend- heart claim is that Warden Foltz knew about ment camp pro- the risk of sexual assault small, vulnerable-looking prisoners gram to policy plaintiff and neither had a such identify potential trans- and screen out those camp not be nor ferees who would safe to follow guidelines created for staff screening transfer. The when inmates for prisoner has intro- record shows that present duced sufficient evidence (1) Warden Foltz question about whether throughout the Michi- knew that conditions Camp prison system particularly gan Pugsley posed a risk of serious substantial (2) plaintiff; whether like harm effectively proce- no he knew that there place protect vulnerable inmates dure in being dangerous condi- transferred tions; in the face of this indiffer- acted with deliberate is, harm disregarded a risk of ence—that adopt by failing he was which aware — inmates like policies reasonable therefore, has, intro- prisoner Taylor. The a motion evidence to defeat duced sufficient on his for grant of reverse the Amendment claim. We for summary judgment and remand the case Furthermore, we hold proceedings. further by refusing the court erred that the district expert appointed before report of the court summary judgment. for ruling on the motion remand, court instruct the district Upon we MI, Jackson, pro Timothy Taylor, se. report. preparation to order Manville, Arbor, MI, Ann for Daniel E. Plaintiff-Appellant. Background I. case, Timothy Taylor, Allen, in this McClear, The Donald L. Of-

Thomas E. Michigan Depart- General, prisoner Di- within Attorney Corrections is fice tall, foot He is five vision, MI, of Corrections. Lansing, Defendant-Appellee. ment mildly mentally pounds, retarded with an ten comments in the transfer order state that features, transfer; IQ 66, youthful looking has volunteered for the howev er, impris- top the code at the of the order seizure disorder. reflects larceny. plaintiffs presentence “program oned the reason for transfer was report following needs.” Plaintiff maintains that contained the admonition: his transfer by bedspace was motivated an acute need for strongly prison It that recommended arrivals, overcrowding due to and new and

personnel read the attached evaluation that the transfer was taken in Administration, deliberate Security from the Social disregard plaintiffs safety.1 Camp Pugs- get copy a of the Forensic Center examina- ley security a minimum facility, is also but possible, very carefully tion if and read the markedly the conditions of confinement are by provided medical information the nurse different than those at the Trustee Division. County from the Kalamazoo Jail. Camp prisoners dormitory The in houses a Also, attempted Note: this offender barracks, style approximately with 60 in past, by slitting in suicide his wrists bleach, room, private mates to a rather than cells. drinking original) and in Camp Pugsley, plaintiff At given was a bunk presentence report, psy- In addition to the in gymnasium. a converted Soon after his chological evaluation of the was con- transfer, Taylor raped by was in another prison Michigan ducted clinician at the argues mate. Plaintiff that the Warden’s Department Reception of Correction’s and policy implement failure to establish a report Guidance Center. The characterized procedure that would in vulnerable Taylor peculiar quite impov- as “a rather mates prisons transfers to unsafe easily erished individual who could be disor- amounted to deliberate indifference. See ganized psy- under stress conditions.” The Brennan, U.S. —, —, Farmer v. chologist Taylor problems believed “has 1970, 1981, 128 (1994) (For L.Ed.2d 811 in psyehosexual cognitive- area as well as claim, Amendment enough “it is ly affectively....” psychologist The despite official acted or failed to act Taylor concluded that of a substantial risk of serious is a rather unstable individual with serious harm.”). problems areas, in a number of and there high is a likelihood he will become a seri- This is the second time this case has come management problem ous while institution- Michigan Dept. before us. v. Simply, alized. entering the stress of the Corrections, panel “[although held that may enough institution be to result in act- binding there was no Supreme Court or causing out and a deterioration in his precedent Sixth Circuit in 1985 to the effect already coping limited defenses skills. small, that it was unlawful to transfer vulner Taylor argues reports that these and evalua- able-looking prisoners to unstructured tions, file, prisoner contained in his indicate camps, the unlawfulness such an action belonged that he to a class of apparent light pre-existing was in prece target pressure be of sexual in 602, 533470, dent.” 14 F.3d 1993 WL at *3 easily and that danger he could be in 1993) 22, (Wellford, J., Cir. December placed general prison population. concurring part in dissenting part). Beginning September panel, however, re- The declined to address sided in the Trustee Division of Jackson Pris- Foltz’s contention that even if the unlawful on, security facility a minimum provides clearly ness of such a transfer was estab inmates with their own individual cells. On lished in quali he still was entitled to June 1985 the immunity. was transferred argued fied qualified Camp Pugsley by drafted, immunity an order that was appropriate because he had no approved, day and carried out in personal one with no involvement in the decision to trans warning advance plaintiff. to the The Taylor, having properly writ- fer delegated that during transferred, deposition Warden Foltz conceded certain number of inmates be he was that in 1985-86 the people overcrowded and find the number of and trans- admitted that when he received an order that a fer them that date. See J.A. at 261. panel inadequately reviewed.” See J.A. authority to his subordinates. really concluded that if there were went to The court that this contention

explained ease, it Eighth Amendment deliberate indifference plaintiffs the merits de- and a claim part of Foltz’s subordinate and concerned whether claim pursued against per- plaintiffs constitu- would have to be liberately indifferent however, footnote, panel opined question, son. The subordinate rights. In a tional the case earlier for in Gibson had been dismissed from the recent decision (6th Cir.1992), “may lack of service. F.2d Eighth Amend- determinative Tay- against defendant Foltz.” claim

ment II. Standard of Review lor, brought was a case at *4 n.3. Gibson inmate had an inmate. The grant widow of We review the district court’s novo, while in The using stabbed and killed de of Foltz, among pris- other by sued Warden district widow standard as that used same officials, Cos., claiming that Foltz was deliber- Philip on Moore v. Morris court. See safety (6th Cir.1993). because he ately deciding indifferent to inmate When F.3d prison policies intended update summary judgment, failed a motion for district and be- staff members protect light inmates and court should view the evidence to follow recommendations nonmoving party cause he failed and most favorable to the of violence showing that a threat studies in favor of the draw all reasonable inferences Michi- prison of southern at the state v. Die nonmoving party. existed See United States “[although panel Inc., that gan. bold, held The Gibson 369 U.S. S.Ct. (1962). in a were and the other defendants pris- at the position to monitor the conditions pro recent The most on, alleged failure to lessen the defendants’ Eighth on Amendment claims nouncement within the does the threat of violence arising from unconstitutional conditions wantonness that is rise to the level of Brennan, is Farmer v. confinement Eighth an Amendment viola- required to find —, 1970, 128 L.Ed.2d 811 Gibson, panel at 854. The tion.” an in also involved the That case explained: case, preopera plaintiff in that mate. The no evidence that the defendants There was transsexual, from a Fed tive was transferred danger was in or knew that Gibson penitentiary Institute to eral Correctional dangerous condition existed on any specific plain arrival. The raped soon after his and supervise ade- 4 Block East. Failure and officials tiff claimed that the wardens showing especially without a quately, indif prisons acted with deliberate the two that subor- the defendants were aware safety in violation of ference to the carry prison poli- had failed to out dinates they knew Eighth Amendment because cies, a wanton infliction does not constitute penitentiary had a violent environ pain. history inmate assaults and and a ment Id. particularly vulnerable would be remanded, general placed to sexual attack When the instant case Supreme Court held population. for inmate a second motion district court entertained liable prison official cannot be found Citing that “a summary judgment. Gibson v. denying an for Amendment an under held that “there was established the court un of confinement inmate humane conditions that dictated a review prison policy directive disregards knows of and less the official deputy wardens of files counselors safety; risk to inmate health excessive of a transfer order.” See before issuance facts from aware of Moreover, official must both be the district court at 291 n.5. J.A. “[tjhere could be drawn which the inference that Foltz is no evidence held exists, harm risk of serious substantial that his subordinates were was aware Id. at the inference.” generally he must also draw reviewing orders properly transfer 114 S.Ct. at 1979. particular had been plaintiffs file in or that Analysis III. adequacy about the existence of reason- procedures. able transfer genuine A. A issue material exists fact Although Foltz appellate indicated about Foltz’s awareness his subordinates’ delegated brief that authority he had over properly to review orders. failure transfer deputy transfers to the wardens at each com- enough The issue is whether there is plex, identify Foltz was unable to ini- whose evidence in the record that would allow a appeared tials on the order. See J.A. at 245. reasonable to conclude that Warden There has been no evidence that the initials steps belonged Anderson, Foltz failed to take reasonable to en to Charlie Deputy suggests sure that vulnerable inmates like Warden. Plaintiff that the initials signature facility placed would not Foltz’s be transferred to a where a could have been there Manag- Assistant Resident Unit harm substantial risk serious existed. n.28; er. See J.A. at 199 see also Plaintiffs responsibility reviewing Foltz had Exactly brief at 22. appear whose initials approving all transfers from the disputed, assuming pur- order is but Michigan, including State Prison of Southern must, poses appeal, of this as we Division, transfers from the Trustee and it initials, are not Charlie Anderson’s this indi- responsibility implement proce was his cates that process the defects in the transfer dures that would vulnerable inmates Contrary affected transfer. to the dangerous Regulations from transfers. al findings court, of the district a reasonable delegate authority lowed Foltz sign to the to jury could conclude that Foltz’s own testimo- his name on the transfers. stated that ny operating procedures indicates that the normally deputy the wardens of each com reviewing authorizing transfers were de- plex sign could the transfers. Foltz’s testi fective and that the defendant was aware of mony deposition from his own that reveals he his subordinates’ failure to review files designees aware that his direct were authorizing before a transfer. redelegating authority over transfers to any explic lower echelon staff without argues Defendant that the fact that so, it to authorization do that he was not even delegated responsibility over transfers to procedures approval sure of the of trans subordinates liability absolves him of fers, procedures and that he had no review injuries. Foltz maintains authority determine whether being “plaintiff liability cannot establish based on 245-47, abused. See J.A. 260.2 His testi adequately failure to supervise.” Defen mony certainly presents jury question a true, dant’s brief at 6. It as the Excerpts deposition ques- automatically just approve Foltz's raise a it because the order, process tion about prepared whether the transfer was con- ARUM had the they or would stitutionally be steps? defective: to take additional they operated A: I don't recall what —how you Q: procedure Do know the that would be that. regards concerning undertaken in Well, Q: you expect, you what would since an inmate should be transferred or not? Who designated had authority? step? would first—do the first preparer A: I would—the of the transfer manager A: It would be the resident unit would have the records in front of them and his assistant —would initiator of a trans- pretty would authority well have the to tell me fer. person. what—which direction to transfer a I review, like, Q: they supposed And were would not review the files. they inmate's file to determine whether like, you Q: expect, And your depu- would not met a certain criteria? ty warden to look at the institutional file before A: I don't recall. approving a transfer? Q: manager If a resident unit had filled out a Only person preparing A: if it made some transfer order—and it looks like on Exhibit 1 special they statement on there that should ARUM'— n side, Bogan, on the left-hand that a special look at some situation. manager; right? that's assistant resident unit A: Yes. is, my Q: question you But did have re- Q: initially filled filled out this form. —had procedures view to insure that that out— order or deputy When it was sent to the warden or authority you delegated being was not somebody you designated sign— person had abused that had it? know, you transfers, approve would A: No.

81 rejected this stated, argu- § ment. The Sixth Circuit in a action ment, stating: theory of re- be based on liability cannot City Here, contrast, charged v. New York with superior. Monell Morris is spondeat Servs., 658, 691, abandoning specific posi- of his duties Dep’t Social (1978) (“a reviewing responding to in- tion — complaints under about medical needs —in be held mates’ municipality cannot liable theory”). knowledge of a break- superior the face of actual respondeat § 1983 on workings depart- automatically proper in the of the However, mean down does not Hill to hold liability ment. does seek Morris supervisor can never incur vicariously for the head nurse’s mis- liable clear As this Court made § under Rather, personally conduct. Morris Bradley: Bellamy v. do, job he did not do it. His failure imposed not be will

Section 1983 job directly in a to do his resulted violation respondeat superi- solely upon the basis of plaintiffs Eighth right. Amendment of the showing that There must be a or. 962 F.2d at 1213. specific incident encouraged the supervisor way direct- or in some other of misconduct is charged In the instant case Foltz minimum, a ly participated in it. At a abandoning specific duties of his with supeni- § must show that a implementing op position adopting and authorized, implicitly sory at least require a re erating procedure would official knowingly acquiesced in the approved or authorizing before view of the inmate’s files offending conduct unconstitutional the face of actual the transfers —in knowl subordinate. workings edge proper of breakdown juryA find on department. could denied, Cir.), cert. do, job personally had a facts that Foltz 83 L.Ed.2d jury not it. A could find and that he did do added). case, the In instant under that the fact constant that that he was deposition own showed Foltz’s due to over pressure to inmates transfer acquiesced the con and at least aware of crowding his failure to would not excuse approving trans of his subordinates duct adopt policies to insure that the reasonable reviewing in adequately the fers without placed grave danger not transferees were mate’s record. County Redman v. San rape. of See the merely supervisor, a but is is not Foltz Cir.1991) (9th 1435, 1446-47 Diego, 942 F.2d directly responsible both for transfers official implements supervisor a (holding that where proce adopting reasonable transfer and for direct, policy, an unconstitutional more in common with dures. This case has 1074, denied, vicarious), cert. 502 U.S. not Marshall, case of Hill v. Sixth Circuit the (1992). 972, In 112 117 L.Ed.2d 137 S.Ct. (6th Cir.1992), cert. de 1209 sum, question exists about whether a triable - nied, -, U.S. duty. properly discharged his (1993), Monell. than it does with L.Ed.2d that he can argument, posi Foltz’s related diagnosed Hill an inmate who personal had no because he After he not be liable bacteria. tive for the tuberculin Taylor’s particular knowledge of vulnerabili facility, he was to another was transferred assault, also fails. Farmer preventive medicine ties sexual denied the repeatedly inquiry is the correct a makes it clear prescribed to him. filed previously Hill knowledge the sub at the whether he against § certain officials 1983 action particular harm to a risk of serious Facility, includ stantial Ohio Correctional Southern he knew persons, not whether who Morris, Superinten class of Terry Deputy the out to be. particular victim turned present dent Treatment. Just Farmer, successfully argued the defendants case, objected to the imposition Morris possess not court that did in the district could be held liability, arguing that he not knowledge potential danger supervisory taken in his actions liable for any safety expressed plead never because and that the did capacity reversing In the course personal involve- concerns them. prove direct Morris’ case, remanding Accordingly, ble to sexual assault. it is a question jury. position stated: for the This is the Magistrate Report that the took in her may escape liability Nor official Recommendation, that, see J.A. at but it was by showing for deliberate indifference rejected by obvious, the District Court. of an while he was aware substan- safety, to inmate he did not know tial risk Additionally, plaintiff contends that Foltz complainant especially him, actually satisfying knew thus Foltz’s specific prisoner be assaulted self-styled knowledge. own test of While it eventually who committed the assault.... personally is true that Foltz did not authorize prison- ... does not matter [I]t Camp Pugsley, the transfer to defendant has er faces an risk of attack for excessive personally introduced evidence that he or- personal reasons to him or because all Taylor’s year dered transfer a from a earlier prisoners in his situation face such a risk. security facility medium a minimum secu- Respondents (stating See Brief for rity facility. During See J.A. at 171. prisoner exposure can establish to a suf- deposition, Foltz testified that he reviewed ficiently “by showing serious risk of harm prisoners’ actually files authorized the belongs group that he to an identifiable transfer. Drawing See J.A. all infer- frequently singled who are out plaintiff, ences in favor of the as we must on inmates”). attack violent other summary judgment, this motion for Farmer, at —, S.Ct. at 1982 could find that Foltz had direct (citation omitted). Similarly, in Butler v. plaintiff’s person- characteristics because he Dowd, Circuit affirmed the trial ally year reviewed file the before the grant prison superin court’s refusal to Camp Pugsley. transfer to tendent, Dowd, j.n.o.v. though even one of danger B. The Camp Pugs- Plaintiff superinten testified ley disputed is a issue material fact probably plain dent did not know about the Defendant also contends that specific tiffs situation until after the sexual proving introduced evidence assault occurred. 979 F.2d , Camp Pugsley had more incidents of sexual — Cir.1992), cert. denied assault than his former Plaintiff counters appointed expert the court persuasive signed court found that Dowd had would have addressed in report, this issue an acknowledged affidavit that that there is a but the District Court decided that it could particular type of inmate who is vulnerable to summary rule on a judgment motion without attack: report. Magistrate Judge’s the The careful typical Plaintiffs in this action are of the report unequivocally and recommendation type normally of inmate who receives such states that Camp the incidence of at the intimidation from other inmates. Plaintiffs compared open ques the is an generally passive personalities exhibit and tion of fact: up are unable to stand to these inmates Plaintiff has shown that Defendant Foltz threatening plain- them. It is knowledge had pervasive of the risk of subject tiffs will be to such treatment in prison system. harm the Although they go. other inmates wherever there has been no statistics [sic] submitted affidavit). (quoting Id. at 667 party either as to whether or not there 1974, small, youthful Foltz testified pervasive existed a harm risk of prisoners especially are vulnerable to sexual particular camp where the sexual assault Harmon, pressure. People v. See 53 Mich. occurred, against Plaintiff expert an App. (1974), N.W.2d appointed by testify this Court to at 394 Mich. 232 N.W.2d 187 aff'd regarding trial this issue. Therefore, a reasonable could conclude added). J.A. at 68 that the information in file should reviewing have alerted a official that expert got The Court’s never a chance to belongs particularly to a report. class is vulnera- submit his After the case was re- following its trier of fact to find that the Circuit defendant- manded the Sixth immunity, denying qualified official had actual of the risk.” decision a second sum- the District Court entertained at-, at 1981^82 mary judgment motion. Plaintiffs counsel (citation omitted). expert’s the court to wait for the re- asked plaintiff, prior The record is clear that argued ruling, persuasively port before again appeal, on re- report question was crucial to the peatedly requested preparation the of the danger Camp Pugsley. In his report. The record also indicates that the second opposition to the defendant’s brief comparative Camp risk of sexual assault at summary judgment, motion for Pugsley disputed is a of material fact. issue major plainly “The one area that the states: Therefore, expert given op- must be expert potential review is whether a must portunity investigation to conduct an Camp Pugsley in harm existed at June only through report. submit his 1985. This can be done review- by the and other matters documents attempted Even if the had not expert.” at 208. The district court J.A. of the submit more evidence risk of sexual based its decision camp, presents record still assault proper- aware that his subordinates were whether, jury question prisoners issuing ly reviewing prisoner files before (1) plaintiff, camp like the conditions at the orders, camp not whether the transfer clearly dangerous were more than at the setting plaintiff than dangerous more for the (2) this, prison, the Warden must have known evidently The district court deliberately he was indifferent to the expert’s testimony thought that the would nothing risk because he did vulner- latter issue or it would not relevant on the able from unsafe transfers. magistrate agreed with the and ordered have place. expert’s appointment the first A review of the record reveals a Presley emphasized Elvis As system Report in crisis. In her and Recom- Enters., Yours, Inc., Elvisly “Mindful Inc. mendation, Magistrate portions reviewed nonmoving party of the burden on report prepared by Michigan State showing of a produce evidence the existence report Police in 1973. Portions of the fact, summary genuine of material issue already been admitted as evidence Red- granted judgment should not be unless F.Supp. Baxley, mond v. nonmoving party opportunity has had the (E.D.Mich.1979) Johnson, and Roland v. opposition.” information essential to discover (E.D.Mich). The Case No. 84-CV-7544-AA Cir.1991). “report Magistrate found that the established pervasive in [Michi- that sexual violence was report important only estab- prison sys- gan Department of Correction’s] camp in fact more lish whether prison camps tem and dealt with both the provide dangerous than the but also to Moreover, prisons.” J.A. at 67. and state knowl- additional evidence of Warden Foltz’s Magistrate Magistrate noted that the in the edge. Supreme explained Court Judge in the Johnson case indicated the jury legitimately infer Farmer can Michigan Report contained suffi- State Police prison knowledge official had from whether War- cient information to determine evidence that the risk well-known: perva- notice that there was a den Foltz “had plaintiff pres- Eighth Amendment [I]f pressuring vio- problem sive of sexual showing that a ents evidence substantial plaintiff introduced lence.” J.A. at 67. The “longstanding, risk of inmate attacks was into record a letter dated October well-documented, expressly pervasive, or Milliken, Depart- from the Governor past, by prison officials in the noted Justice, Rights Division. That ment of Civil suggest that the defen- the circumstances investigation the results of an letter detailed being exposed dant-official sued Michigan by out- prison in five of conditions concerning the risk and to information side, Among it, independent experts. the condi- known’ about then such thus ‘must have subjected experts tions which the believed permit be sufficient to evidence could safety grievous guarantee duty harm in violation of of inmates. Their the inmates to rights protecting prisoners in- includes their Amendment violence adequate security provided prisoners: “[H]aving to inmates at the hands of other assault, stripped [prisoners] virtually every against “physical and sexual other means violence, self-protection at Plain- J.A. and foreclosed their access and extortion.” aid, government tiff Warden Foltz was sent a outside and its offi- maintains that copy that letter. cials are not free let the state of nature its take course.” Id. arguably knew about the Warden Foltz problem widespread sexual assaults and Our review of the record this case indi- smaller, youthful prisoners knew that were disputed questions cates that there are vulnerable to attack than others. He more concerning material fact whether Warden camps were less struc- also knew any procedures place Foltz had to review prisons tured than the and that conditions of authority transfer orders to insure open camps’ confinement were more being over transfers was not abused and to barracks-style lodging than Trustee Divi- being insure that properly inmates’ files were this, sion. a reasonable could From examined before transfer. Triable issues have concluded that Foltz knew that the risk fact also exist as to whether falls inherently greater of sexual assault was at category especially into that of inmates vul- stated, camp. Farmer assault, As the Court nerable to sexual whether requisite ‘Whether a official had the subjected to a substantial risk of serious knowledge ques- of a substantial risk [is] harm Camp Pugsley, his transfer subject tion of fact to demonstration in the Camp Pugsley was in fact more ways, including usual inference from circum- dangerous like than evidence, may stantial and a factfinder con- Prison, Jackson and whether Warden clude that a official knew of a substan- camp presented knew of the risk that the but very fact that tial risk from the the risk was steps failed to take reasonable to insure that — -, obvious.” S.Ct. his vulnerable wards were not transferred question 1981. Because this is a of fact for there. To in answering ques- assist these jury, summary judgment appropri- is not tions, the district court is instructed to allow ate. court-appointed expert prepare report. grant We REVERSE the of sum-

IY. Conclusion mary judgment to the defendant RE- MAND the proceedings case for further con- phrase In 1910 coined a Winston Churchill opinion. sistent with this recognized an obvious truth when he said that the “treatment of crime and crimi So ordered. unfailing nals is one the most tests of WELLFORD, Judge, dissenting. Circuit Farmer, any country.”3 civilization of In my view, Taylor present failed applied the same idea to support finding evidence that would prison rapes, saying “gratuitously allow that Warden Foltz acted with in- deliberate beating prisoner by of one difference, and I would AFFIRM the district ‘legitimate penological another serves no ob- grant summary judgment. court’s

jectiv[e],’ any squares more than it with ” Farmer, ‘evolving decency.’ standards of argues that as the (citations at —, warden, at 1977 had actual of his vulnera- omitted). dangerous places bility file, Prisons are be to sexual assault from his inmate dangerous people cause house in con and that Foltz acted with deliberate indiffer- gested Eighth conditions. But ordering Amend ence in his transfer to the barracks- pris Taylor’s ment to the mandates that type prison. Constitution file contained a de- characteristics, on officials scription maintain humane conditions of physical of his in- size, cluding retardation, confinement and take reasonable to measures his a mild mental reform, Addressing prison the issue of Winston of Commons in 1910 while he was Home Secre- tary. Churchill made these remarks before the House majority, and an the Court stated that a has a seizure disorder and that he addition, Taylor’s “prison official cannot be found adjustment disorder.1 liable under reports that had psychological denying Amendment for an in file contained presentence part of his prepared as mate humane conditions of confinement un majority opin- described report disregards as was less the official knows of and “[tjhis offend- report safety; warned ion. excessive risk to inmate health or certainly factors mental limitations are er’s official must both be aware of facts from affect his future past behavior and will his inference could be that a which the drawn adjustment.” exists, risk of serious harm substantial Farmer, he must also draw the however, inference.” any knowledge denies — at —, at S.Ct. particular vulnera- Taylor’s allegedly added). Simply failing signifi to alleviate During period to sexual assault. bilities perceived cant risk that he should have but responsible for dispute, Warden ground liability. did is insufficient to Id. complexes. overseeing prison three He delegated responsibility for that he claims motion, To survive a pris- same-level transfer decisions between therefore, Taylor present must some evi- deputy to wardens each of ons despite dence that Warden Foltz failed to act complexes responsi- for he was prison which a substantial of harm. risk Thus, signature appears although his on ble. Taylor presents possible two theories on orders, placed it was there Taylor’s transfer First, liability. Tay- ground direct which placed his deputy warden who also jury argues lor could infer from the initials on the transfer. evidence in his inmate file that Foltz knew assault, Taylor’s vulnerabilities to sexual but Although Eighth Amendment “does disregard these factors when chose to order- prisons ... mandate comfortable neither Alternatively, Taylor ar- the transfer. permit inhumane ones.” Farmer v. does it —, Brennan, gues generally Foltz knew Warden S.Ct. (1994) (citations small, 1970, 1976, youthful looking were more 128 L.Ed.2d 811 omitted). subject prison assault “every injury but Not suffered one risks and to draft indifferent to these failed prisoner at of another [however] the hands policies protected these pris inmates into constitutional for translates prisons. transfers to unsafe responsible officials for the victim’s safe at —, bring at 1977. To ty.” Id. Taylor’s argument, first he has failed As to prison claim in conditions a successful these present enough allow evidence would eases, the inmate must show Foltz to conclude Warden reasonable (or act) acted failed to with “deliber officials Taylor’s particular knew of vulnerabilities safety Id. indifference” to his or welfare. ate Although Foltz had access to sexual assault. file, presented an affidavit that indifference stan- Foltz To meet the deliberate delegated responsibility dard, claimed the inmate must show the offi- deputy sufficiently transfers to the wardens culpable “a state of same-level cial had Setter, 294, 298, prison complexes for which he at each of the mind.” Wilson v. 501 U.S. presented responsible. has not claim. On the subjective information to rebut this (importing a standard into test). actually contrary, prisoner Bogan official Recently, in indifference” “deliberate “Camp volun- Farmer, Taylor’s transfer as a has held that caused 268, Exh. 1. Camp Pugsley.2 subjective pointed one. As out teer” the test is J/A personally he had re- apparent to sexual assault because from his inmate file that 1. It is not features, previous year looking alleg- when transfer- youthful viewed the file the thus medium-security facility ring Taylor to a susceptible from a edly assault. more sexual security facility. minimum unconvincing. proposition majority per- I find that that Foltz did not 2. The concedes supervising Pugsley. responsible three sonally Camp transfer to authorize the 5,000 however, concludes, approximately complexes in- that house could find It jury could conclude that Taylor's particular mates. No reasonable knew of vulnerabilities 86 majority’s holding of the is to he was “aware subordinates had failed

The effect carry prison policies.”4 liability by way out Id. potential of expose Foltz to alleged respondeat superior for the miscon- Cir.1992), (6th Marshall, Hill v. 962 F.2d 1209 Taylor properly Bogan of whom did duct — denied, U.S. —, rt. 113 S.Ct. ce theory in this suit.3 The process with serve 2992, (1993), by cited may respondeat superior not be used to of decision, majority authority for its does § liability 1983. See Monell establish under support supervisory the extension of lia Department v. Soc. Serv. New York bility § under 1983 under the facts of this 2018, 2036, City, 436 U.S. 98 S.Ct. nursing supervi case. Hill addresses the ” L.Ed.2d 56 611 departmen sor’s “actual malfunction, supervisor tal and notes that the Additionally, as Gibson 963 ” “personally job. failed to do his Id. at 1213 (6th 851, Cir.1992), plaintiff F.2d has not added). addition, (emphasis Hill was able showing “[o]b- made a that Foltz acted out of strong proof pervasive pattern to offer of a wantonness,” duracy or as is in an indifference to the inmates’ medical needs “Lack of due Amendment context. generally. job— Id. Morris did not do his safety by prison prisoner’s care for a officials “responding complaints to inmates’ Gibson, 963 F.2d at 853. is insufficient.” medical needs” —and thus was held liable. it clear that to hold Foltz Gibson makes cry Id. That situation is a far from Foltz’s warden, potentially liable as he must have non-personal involvement this case. “knowledge” and thus have intended harm to Cir.1992), Dowd, (8th Butler v. 979 F.2d 661 allegedly prisoner. Id. What has oc- denied, rt. ce curred, though indeed unfortunate and dis- 2395, (1993), L.Ed.2d also cited concerned, tressing, insofar as Foltz was did majority, again allegations involved of the wanton “not rise to the level of a infliction deliberate indifference of the warden of that pain” injury by Again, him. Id. at 854. facility, proof accompanying perva with of a evidence, even, allegation there is no no pattern rapes particular prison. sive in a [Taylor] danger,” Foltz “knew that was in evenly An almost divided en banc court al though may even have had ultimate re- damages against lowed one dollar award sponsibility at “to monitor the conditions the warden. I likewise find Butler not to be added). prison.” (emphasis Id. at 854 There persuasive under the facts of this case. personally no that Foltz evidence was Taylor aware that a homo- But be even we were to assume that Foltz Camp Pugsley personally and, sexual attack victim at or that reviewed file year barracks-styled misconduct at this circuit in a case of this mation he had read about quired to draw stack inference issue for die ate after Whether the In another recent where mate the same room. assault and from cruel and unusual F.2d transferred, indifference, At seeing Taylor's non-moving party, issue here whether ^[1239] who has received deduce that jury. arguments alleged all, every possible officials fail to upon 1243-44 we do not decide. negligent case, Cf. name on misconduct inference to Danese death we with another inmate in [(6th able to recall the infor- punishment Although we are not allowed to described the law conduct, type: a list inference in favor Cir. threats, was at [v. segregate right Asman], 1989)]. of inmates to preserve we Bogan or deliber- is violated to be free threats of risk previous are re- an in As of guards not held a warden Roland v. tutional ter the have held that 'deliberate indifference' of consti Marsh v. (footnote omitted). require hospitalization. newed rary unit, failure to own court found mere against dealing another inmate. another.” Walker v. Cir. (6th Cir.1990) (6th fail to transfer, safety authority informed this court had decided Arn, May threats, magnitude may Johnson, him, with Cir. protect 937 F.2d due to rumored threats of harm 1982), requested eighth hut was beaten so 1991), No. In Stewart v. Marsh and Gibson. an inmate from assault negligence. upon similarly one inmate from an attack an 90-1343, amendment cannot, unpublished Norris, inmate, and received a administration return to his occur when Nonetheless, added). liable 1991 WL 84346 Love, fearing only (6th Cir.1991) severely course, decision in previously. one case 696 F.2d We original tempo for his of re "[W]e coun have as to prison actually official the informa that the intended for thus, had actual occur, therein, that information does the harm to he must show that the tion contained Taylor particu flag disregarded raise a red official knew and the excessive Although safety. to sexual assault. larly vulnerable risk to the inmate’s health or Id. at Taylor’s physical characteristics gives file S.Ct. at 1979. character not mention other age, it does “disregard” use of the term in The Court’s (such or homo as feminine mannerisms istics (or requires Farmer official orientation) make him that would sexual state) feasibly be able to alleviate the risk prison rape. likely to be a victim of more Cf. agree to the inmate.5 I cannot that we — Brennan, U.S. —, Farmer v. barracks-style prison camps declare should (pre-operation L.Ed.2d 811 minimum-security pris- unconstitutional for mannerisms). with feminine transsexual youthful, slight prisoners, oners or or that a Second, psychological reports contained develop could so find. If Foltz to failed necessarily lead one to the file do not within special procedures that would have screened Taylor especially vulnerable is conclude small, youthful try protect to to inmates reports Taylor as a rape. These describe to against prospective rapes, I would deem and warns that he will “peculiar individual” negligent, failure to be not deliberate indif- adjusting time life. have a difficult ference. expressed reports in these concern is No Taylor likelihood that will be sub about the type requirements impose What would we Thus, ject pressure in to sexual upon which the warden? The factors on Tay in knowledge of the information Foltz’s (e.g., “young-looking,” bases his claim support the conclusion lor’s file does “small”) subjective are far too on which to actually knew that this defendant was predicate liability. characteristics Unlike the assault. particularly vulnerable sexual Farmer, pre-operative transsexual in I of, agree cannot that Foltz was either aware liability theory of also Taylor’s second in, transfer, acquiesced approving or know- argues that Foltz knew that must fail. He place Taylor in imminent smaller, that this would category youthful simply danger. It is unreasonable to hold subject pressure, to sexual but acted with are by a warden liable for the transfer subor- failing adopt indifference” “deliberate mentally young, slight, prevent dinate of troubled procedures that would them transfer prisons. prisoner prison camp.6 to a Even being to unsafe transferred upon bases his claim characteristics Indeed, previously testified Foltz had identifiable, relevancy objectively are small, vulnerability youthful general depend on the this information would also Harmon, Mich.App. People prisoners. already characteristics of the other inmates (1974), aff'd, Mich. 220 N.W.2d 212 barracks-styled facility. Even at the located There also 232 N.W.2d not be conclu- this information alone would barracks-styled prison would evidence sive; ability analysis an inmate’s proper predators opportunities more give sexual himself, of the in- an evaluation than would a attack these vulnerable inmates strength, aggressiveness, abili- mate’s muscle facility. single-cell inmates, togeth- ty with other to make allies does not But the existence of that evidence factors, variety with a of other unknown er inappropriate mean required. would be states, the deliberate this case. As Farmer potentially I would not hold the warden standard describes “a state of indifference circum- a matter of law under all the blameworthy negligence.” than liable as mind more — Farmer, at —, jury could find that stances. No reasonable failing deliberately indifferent Although the inmate does not have show allegation showing unusu- doses not 6. There is no deliberate indifference standard Farmer, prisons Michigan impose al incidence of strict officials. at —, (not report, every supervised the Johnson Foltz. Note 114 S.Ct. at 1977 joint appendix liability). at 270-275. injury included in the translates into constitutional accomplish practical adopt procedures to taking into impossibility account

and realistic pris- and different

the numbers of settings Michigan. view, majority taking a real my establishing liability

step strict towards of a

against the warden ease prisoner. It also risks

youthful, troubled superior

imposing respondeat nothing prevent

against Foltz. There was pursuing deputy

Taylor’s properly war- manager responsible for or resident unit

den Camp Pugsley. assignment actual

Accordingly, I AFFIRM the district would

court’s decision. DUNCAN;

Stephen Kenneth Patricia Wil Howard; Duncan; Paul Mar

lis Robert Howard; Anthony West;

tha Dale J.

Mary West; Tommy Hancock; Ann S. Hancock; Cahill;

Martha David M. S.

Carolyn Cahill; Jarrell; R. James G. Mary Lynn Felts, for themselves similarly situated,

and all others Plain

tiffs-Appellants, COUNTY, TENNESSEE;

COFFEE James

Wilhelm, County Executive; Coffee Casteel, Registrar of Voters for

Connie County, Tennessee; Gary

Coffee

Cline, County Chairman of Coffee Commission, Defendants-Ap

Election

pellees.

No. 94-5746. Appeals,

United States Court of

Sixth Circuit.

Argued Aug.

Decided Nov.

Case Details

Case Name: Timothy Taylor v. Michigan Department of Corrections

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 26, 1995

Citation: 69 F.3d 76

Docket Number: 94-1479

Court Abbreviation: 6th Cir.