                      REVISED February 4, 2011

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                  Fifth Circuit

                                                               FILED
                                                             January 13, 2011
                                  No. 09-10660                Lyle W. Cayce
                                                                   Clerk

MARK DUVALL

                                     Plaintiff-Appellee Cross-Appellant
v.

DALLAS COUNTY TEXAS

                                     Defendant-Appellant Cross-Appellee



                 Appeals from the United States District Court
                      for the Northern District of Texas


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
Per Curiam:
      Plaintiff-Appellee Mark Duvall brought this action against Defendant-
Appellant Dallas County (“the County”) for personal injuries stemming from an
infection that he contracted while incarcerated in the County’s jail (“the Jail”).
At the conclusion of a jury trial, Duvall prevailed, and the County appealed. We
affirm.
                      I. FACTS AND PROCEEDINGS
      Duvall was a pre-trial detainee in the Jail from December 11 to December
26, 2003. During his stay in the prison, Duvall contracted Methicillin-Resistant
Staphylococcus Aureus (“MRSA”), a staph infection resistant to usual penicillin-
                                        No. 09-10660

type antibiotics. Duvall’s physical suffering was great, and he eventually lost
the use of one of his eyes. In his § 1983 complaint, Duvall claimed that the
County had deprived him of his right to due process by subjecting him to an
unconstitutional condition of confinement. After the jury found for Duvall, the
County timely filed a notice of appeal. The County contends that (1) the district
court’s jury instructions and its denial of the motion for judgment as a matter
of law were erroneous because the district court relied on the wrong standard,
(2) the evidence was insufficient to support the jury’s finding that Duvall
suffered a constitutional violation from his “condition of confinement,” and (3)
the evidence was insufficient to support the jury’s finding that the County had,
with deliberate indifference, maintained a pattern or practice that was the
moving force behind the constitutional violation that Duvall suffered. Duvall
filed a protective cross appeal in which he asserts that a Monell inquiry is not
required in a “conditions of confinement” case. We affirm.
                                       II. ANALYSIS
A. STANDARD OF REVIEW
      We review jury instructions for abuse of discretion.1 We review the
sufficiency of the evidence de novo2 and will overturn the jury verdict only if
“there is no legally sufficient evidentiary basis for a reasonable jury to find for
[Duvall].”3 We review the record and all of the evidence in the light most
favorable to the prevailing party.4
B. DUE PROCESS VIOLATION




      1
          Dreiling v. Gen. Elec. Co., 511 F.2d 768, 774 (5th Cir. 1975).
      2
          Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 392 (5th Cir. 2000).
      3
          Fed. R. Civ. P. 50(a).
      4
          Thomas, 220 F.3d at 392.

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                                         No. 09-10660

       Duvall advanced a “conditions of confinement” claim under the Due
Process Clause of the Fourteenth Amendment of the United States Constitution.
Because a state may not punish a pretrial detainee, conditions of confinement
for such an inmate that amount to “punishment” violate the Constitution. In
Bell v. Wolfish,5 the Supreme Court stated that “[i]f a particular condition or
restriction of pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount to punishment.”6 We
addressed this issue, en banc, in Hare v. City of Corinth,7 making clear that a
plaintiff must show deliberate indifference on the part of the municipality only
in a case in which the constitutional violation resulted from an episodic act or
omission of a state actor.8           In cases like Duvall’s, that are grounded in
unconstitutional conditions of confinement, the plaintiff need only show that
such a condition, which is alleged to be the cause of a constitutional violation,
has no reasonable relationship to a legitimate governmental interest. In a
conditions of confinement claim, “an avowed or presumed intent by the State or
its jail officials exists in the form of the challenged condition, practice, rule, or
restriction.”9 As this court recognized while sitting en banc, “the reasonable-
relationship test employed in conditions cases is functionally equivalent to the
deliberate indifference standard employed in episodic cases.”10




       5
           441 U.S. 520 (1979).
       6
           Id. at 539.
       7
           74 F.3d 633 (5th Cir. 1996) (en banc).
       8
           See id. at 644.
       9
           Id.
       10
          Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997) (en banc) (internal quotation marks
and citations omitted).

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                                            No. 09-10660

          The County stipulated to the fact that “no legitimate governmental
purpose was served by the allowance of the MRSA infection to be present in the
Dallas County Jail between December 11-23, 2003.” Contrary to the assertions
by the County, liability from this stipulation does not create a strict liability
regime.           Duvall’s initial and substantial burden was to establish an
unconstitutional condition of confinement.
          To prevail on his underlying constitutional claim, Duvall had to prove (1)
“a rule or restriction or . . . the existence of an identifiable intended condition or
practice . . . [or] that the jail official’s acts or omissions were sufficiently
extended or pervasive”;11 (2) which was not reasonably related to a legitimate
governmental objective; and (3) which caused the violation of Duvall’s
constitutional rights.
          The County insists that Duvall’s is not a traditional “conditions of
confinement” case because the County’s policymaker, the Sheriff, did not
promulgate a rule that brought the bacteria into the Jail. This is correct, of
course, as far as it goes, but the law is well settled that “even where a State may
not want to subject a detainee to inhumane conditions of confinement or abusive
jail practices, its intent to do so is nevertheless presumed when it incarcerates
the detainee in the face of such known conditions and practices.”12
          In some cases, a condition may reflect an unstated or de facto policy,
          as evidenced by a pattern of acts or omissions “sufficiently extended
          or pervasive, or otherwise typical of extended or pervasive
          misconduct by [jail] officials, to prove an intended condition or
          practice.”13




          11
               Hare, 74 F.3d at 645.
          12
               Id. at 644.
          13
               Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009), quoting Hare, 74 F.3d
at 645.

                                                   4
                                         No. 09-10660

As discussed in more detail below, the record here contains a surfeit of evidence
that the County knew of the conditions complained of, yet continued to house
inmates in those conditions.
       Regardless, Duvall had to show that the condition was more than a de
minimis violation. The de minimis exception provides a significant threshold to
liability:
                [I]solated examples of illness, injury, or even death, standing
                alone, cannot prove that conditions of confinement are
                constitutionally inadequate. Nor can the incidence of diseases
                or infection, standing alone, imply unconstitutional
                confinement conditions, since any densely populated residence
                may be subject to outbreaks. . . . Rather, a detainee
                challenging jail conditions must demonstrate a pervasive
                pattern of serious deficiencies in providing for his basic
                human needs.14

The evidence here was amply sufficient to prove that the violations were serious,
extensive and extended, and that they were much more than de minimis.
Physicians testified that there was a “bizarrely high incidence of MRSA” and
that they were not aware of a jail with a higher percentage of MRSA than the
Jail. The jury heard evidence that the Jail experienced around 200 infections
per month. Indeed, record evidence demonstrates that the infection rate of
MRSA in the Jail was close to 20 percent, and that most jails in 2003 would have
one or two cases per month, resulting in an infection rate of one or two percent.
It would be reasonable to conclude that the infection rate in the Jail was ten to
twenty times higher than in comparable jails. The record also establishes that
the County’s awareness of the situation preceded Duvall’s confinement, and that
there had been serious outbreaks of MRSA in the Jail for at least three years
before Duvall’s arrival.



       14
            Shepherd, 591 F.3d at 454.

                                              5
                                        No. 09-10660

      The jury found that Duvall’s injury was caused by a policy or custom of the
County. Although the jury found this fact in response to the court’s instruction
on municipal liability under the Monell test, the jury’s finding satisfies the need
for such a showing in connection with the underlying constitutional violation as
well. Under Monell, a plaintiff must show either an official policy or persistent
and widespread customs.15 Under Hare, and consistent with the district court’s
jury instructions, the plaintiff must show an intended condition or practice, or
show that jail officials’ acts are “sufficiently extended or pervasive . . . to prove
an intended condition or practice.”16 We see no meaningful difference between
these showings. “We review jury instructions with deference and will only
reverse judgment when the charge as a whole leaves us with substantial and
ineradicable doubt whether the jury has been properly guided in its
deliberations.”17 We perceive no abuse of discretion, and we are convinced that
the jury’s finding of a custom or policy under the municipal-liability jury
instruction satisfies the custom-or-policy element for purposes of the underlying
constitutional violation.
      Furthermore, there was sufficient evidence for the jury to find the
existence of such a custom or policy for the times in question here. It heard
evidence that the Sheriff and other jail officials had long known of the extensive
MRSA problem yet had continued to house inmates in the face of the
inadequately controlled staph contamination. Testimony was presented that it
was feasible to control the outbreak through tracking, isolation, and improved
hygiene practices, but that the County was not willing to take the necessary
steps or spend the money to do so. The measures necessary to control and


      15
           Bulldozer v. Holmes, 162 F.3d 368, 377 (5th Cir. 1998).
      16
           Hare, 74 F.3d at 645.
      17
           Bradshaw v. Freightliner Corp., 937 F.2d 197, 200 (5th Cir. 1991) (emphasis added).

                                               6
                                     No. 09-10660

eradicate MRSA were all known to jails in 2003. Dallas County was aware of
the high MRSA infection risks in the jail before 2003, and the Sheriff knew that
the few measures that the jail did take in an attempt to control the rate of
infection had been ineffective. In the face of the situation, the Jail’s policy
manuals for sanitation and health care did not even mention MRSA. The
County relies on its promotion of hand washing, which is one means universally
identified to help reduce the spread of MRSA infection. However, the jury heard
evidence that the jail had refused to install the necessary hand washing and
disinfecting stations and had failed to use alcohol-based hand sanitizers, which
are the recommended means of hand disinfection, especially in a jail setting
where much contact occurs in the cell block. Both County officials and outside
experts stated that the County failed to take the well-known steps needed to
control the infection. In addition, the jury heard evidence that the infection
posed a significant risk of serious disease to the inmates like Duvall. This and
other record evidence is a legally sufficient evidentiary basis for a reasonable
jury to find a custom or practice.
      Finally, the jury explicitly found that Duvall contracted MRSA while in
the Jail. The evidence was more than sufficient for the jury to so conclude. The
jury heard evidence that Duvall exhibited no symptoms when he arrived, that
he started showing symptoms while he was in the Jail, and that the Jail had a
high rate of MRSA infections before and during his stay.
      C. Municipal Liability
      The County also argues that the evidence was insufficient to establish a
basis for imposing § 1983 liability on the County for the underlying Due Process
violation. For a municipality to be liable, the plaintiff must show that there was
either an official policy or an unofficial custom, adopted by the municipality, that




                                          7
                                         No. 09-10660

was the moving force behind the claimed constitutional violation.18 The parties
dispute whether a satisfactory showing under Monell requires a showing of
deliberate indifference. We need not answer this question, because the jury
properly found that the County did, indeed, act with deliberate indifference.19
       The district court submitted Duvall’s Monell claim for municipal liability
to the jury. The court, in the charge on Monell liability, instructed the jury that
“[t]he policy or custom must have been adopted or maintained with deliberate
indifference to its known or obvious consequences.” In defining deliberate
indifference, the charge stated that “[d]eliberate indifference in this case means
that Dallas County, through its Commissioners or Sheriff Bowls, made a
conscious or deliberate choice to disregard pretrial detainees’ constitutional
rights to medical care, or to disregard the presence of MSRA.” Based on the
jury’s verdict, therefore, the jury found a policy or custom that was adopted by
Dallas County with deliberate indifference. Thus, even if a finding of deliberate
indifference were an essential predicate for imposition of the County’s liability
the jury made that finding in this case.
       We are aware, of course, that the standards of deliberate indifference for
the underlying constitutional violation and the Monell showing are different: To
show a violation under the episodic-acts line of cases, the plaintiff must show
subjective deliberate indifference on the part of the particular municipal
employee who committed the acts or omissions; to show a violation under the
municipal-liability “custom or policy” line of cases, the plaintiff must show that
the violation resulted from a custom or policy maintained by the municipality




       18
            Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 694 (1978).
       19
          In Shepherd, a recent appeal involving “conditions of confinement,” we did not require
the plaintiff to make a showing of deliberate indifference under Monell, presumably because
it is unnecessary in “conditions of confinement” cases.

                                                8
                                        No. 09-10660

with objective deliberate indifference.20 The jury charge given in this case did
not delineate between objective and subjective deliberate indifference. However,
the County did not ask for a delineation in the charge or object to the charge on
this basis. The charge, requiring a conscious or deliberate choice on the part of
the County, is not plainly erroneous. In addition, as outlined above, the record
contains sufficient evidence to support the jury’s findings.
                                   III. CONCLUSION
      The district court did not abuse its discretion in instructing the jury on the
standard for Duvall’s “conditions of confinement” claim, and the jury heard
sufficient evidence to determine the issues as it did. We, therefore, affirm the
judgment entered on the verdict in this fully tried case.
      AFFIRMED.




      20
           See Brumfield v. Hollins, 551 F.3d 322, 331 (5th Cir. 2008).

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