                   United States Court of Appeals,

                           Fifth Circuit.

                            No. 93-8603.

               Artelia M. SCOTT, Plaintiff-Appellant,

                                  v.

   George E. MOORE, individually and as an employee of Killeen
Police Department, et al., Defendants-Appellees.

                           June 17, 1996.

Appeal from the United States District Court for the Western
District of Texas.

Before POLITZ, Chief Judge, and WISDOM and SMITH, Circuit Judges.

     WISDOM, Circuit Judge:

     Plaintiff/appellant, Artelia M. Scott, appeals the summary

judgment dismissal of her 42 U.S.C. § 1983 inadequate staffing

claim against the City of Killeen, Texas ("the City"), and its

Chief of Police, Francis L. Giacomozzi.     Because we conclude that

a material fact issue remains in dispute, we VACATE and REMAND to

the district court for further proceedings.

                      I. FACTS AND PROCEEDINGS

     The   plaintiff/appellant,   Artelia   Scott,   was    arrested   on

December 31, 1988, for public intoxication, assault, and resisting

arrest.    She was taken to the Killeen City Jail, processed by the

female jailer on duty at that time, and placed in a holding cell to

await arraignment.   When the female jailer's shift ended, she was

relieved by a male jailer, defendant George Moore.         At that time,

Moore was the only correctional officer on duty.      Over the course

of his eight hour shift, Moore repeatedly entered Scott's cell and


                                  1
sexually assaulted her.     Scott was unable to report the incidents

until she was released from custody on January 2, 1989, because

Moore followed her to the phone and stood next to her during her

three telephone calls to her mother.

     When    Chief   Giacomozzi    received   Scott's   complaint   against

Moore, he asked Scott to give a statement to the police and take a

lie detector test.       Scott agreed to do so.         After the results

indicated that Scott was telling the truth, Giacomozzi transferred

the matter to the criminal investigation division, and placed Moore

on administrative leave.          Moore resigned four days later, and

subsequently pleaded guilty to criminal charges.

     Scott filed suit in state court against Moore, the City, and

Chief Giacomozzi, alleging various state and federal constitutional

claims.     Moore subsequently declared bankruptcy and was dismissed

from the suit after the bankruptcy proceeding discharged Scott's

claim against him.      The City and Giacomozzi removed the case to

federal court, where they filed their first motion for summary

judgment.     Scott did not file a response, and the district court

granted the motion.      On appeal, this court affirmed the district

court's grant of summary judgment on all grounds except inadequate

staffing of the jail, as both the defendants' motion and the

district court's ruling failed to address this aspect of Scott's

suit.1

     After remand, the City and Giacomozzi filed a second motion


     1
      Scott v. Moore, 987 F.2d 771, No. 92-8284 (5th Cir., March
3, 1993) (unpublished) (per curiam ).

                                      2
for summary judgment on the issue of inadequate staffing.                    The

district court granted the motion.          Scott filed a timely notice of

appeal of this decision.

                                 II. DISCUSSION

A. Standard of Review

           We review a grant of summary judgment de novo, applying the

same       standards    as   those   that   govern   the   district   court's

determination.2         Summary judgment may be granted only if the court,

viewing the facts and inferences in the light most favorable to the

non-moving party, determines that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as   a matter      of    law.3   The   moving   party   must   demonstrate   by

competent evidence that no issue of material fact exists.4                   The

non-moving party then has the burden of showing the existence of a

specific factual issue which is disputed.5              If any element of the

plaintiff's case lacks factual support, a district court should

grant a defendant's motion for summary judgment.6

B. Scott's § 1983 Claim:

       We first examine the allegations in Scott's complaint to

       2
      Waltman v. International Paper Co., 875 F.2d 468, 474 (5th
Cir.1989).
       3
        Fed.R.Civ.P. 56(c).
       4
      Isquith v. Middle South Utilities., Inc., 847 F.2d 186,
198-99 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102
L.Ed.2d 329 (1988).
       5
      Celotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct.
2548, 2552-53, 91 L.Ed.2d 265 (1986).
       6
        Id.

                                        3
determine a context for examining the facts and inferences in the

record.7 Specifically, Scott alleges that "the City and Giacomozzi

failed to provide proper and adequate staffing of the City jail by

having only one individual on duty, and/or by not having a female

member present when female prisoners are confined."              She further

alleges that the defendants/appellees "knew or should have known

that the inadequate and improper staffing created an unsafe and

uncontrolled situation for abuse and assaults of people confined in

the jail."

         Section 1983 provides that, "[e]very person who, under color

of any statute, ordinance, regulation, custom, or usage, of any

State ... subjects or causes to be subjected, any ... person within

the jurisdiction [of the United States] to the deprivation of any

rights ... secured by the Constitution and laws, shall be liable to

the party injured."8      Therefore, an actionable § 1983 claim must

allege a deprivation of rights secured by the Constitution by a

person acting under color of state law.9

         Although municipalities are "persons" within the meaning of

§ 1983, they may only be held liable if the constitutional harm

suffered    was   the   result   of   an   "official   policy,   custom,   or



     7
      Collins v. City of Harker Heights, TX, 503 U.S. 115, 112
S.Ct. 1061, 117 L.Ed.2d 261 (1992).
     8
      42 U.S.C. § 1983 (emphasis added).
     9
      Daniels v. Williams, 474 U.S. 327, 329-31, 106 S.Ct. 662,
664-65, 88 L.Ed.2d 662 (1986); Evans v. City of Marlin, 986 F.2d
104, 107 (5th Cir.1993), disagreed with on other grounds, Hare v.
City of Corinth, MS, 74 F.3d 633 (5th Cir.1996).

                                       4
pattern."10    Municipalities may not be held liable under either a

theory of respondeat superior or vicarious liability.11                    They also

may not be held liable under § 1983 for mere negligence in

oversight.12    Nonetheless, prison officials may not ignore obvious

dangers to inmates.13

          Therefore,   in     order   to   hold       a    municipality   liable,   a

plaintiff must show that his or her constitutional deprivation was

caused    by   the   city's    adoption        of    (or   failure   to   adopt)   the

particular policy, and that such action went beyond mere negligent

protection of the plaintiff's constitutional rights.14                    That is, an

alleged inadequacy        in   a   municipal         policy   must   amount   to   "an

intentional     choice,     not    merely       an    unintentionally      negligent


     10
      Monell v. New York City Dep't of Social Services, 436 U.S.
658, 690-94, 98 S.Ct. 2018, 2035-37, 2039, 56 L.Ed.2d 611 (1978).

     11
      Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S.Ct.
2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 691, 98
S.Ct. at 2036; Doe v. Taylor Indep. School Dist., 15 F.3d 443,
452 (5th Cir.) (en banc ), cert. denied, --- U.S. ----, 115 S.Ct.
70, 130 L.Ed.2d 25 (1994).
     12
      Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th Cir.1992)
(citing, City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct.
1197, 1204, 103 L.Ed.2d 412 (1989)).
     13
      Farmer v. Brennan, --- U.S. ----, ----, 114 S.Ct. 1970,
1973, 128 L.Ed.2d 811 (1994).
     14
      Hare v. City of Corinth, MS, 74 F.3d 633 (5th Cir.1996);
Colle v. Brazos Cty., TX, 981 F.2d 237, 246 (5th Cir.1993)
(concluding that "the ultimate question is whether Brazos County
adopted policies creating an obvious risk that pretrial
detainees' constitutional rights would be violated"); Rhyne, 973
F.2d at 392 ("while the municipal policy maker's failure to adopt
a precaution can be the basis for § 1983 liability, such omission
must amount to an intentional choice, not merely an
unintentionally negligent oversight.").

                                           5
oversight".15

         In     sum,       proper         analysis       of    a     §    1983      claim    against     a

municipality requires three determinations.                                   First, we must decide

if the City promulgated "an official policy, practice, or custom,"

which could subject it to § 1983 liability.16                                      Next, we determine

if the policy can be linked to a constitutional violation.17                                          And

finally,            we    must   ascertain          if       the   municipality's           action   (or

inaction)            extended        beyond         mere      negligent           oversight     of    the

plaintiff's constitutional rights.18

1. The Existence of an "Official Policy"

         This court has defined an "official policy" for the purposes

of   §        1983       liability        to   be   either:              1)   a    policy    statement,

ordinance, regulation, or decision that is officially adopted and

promulgated by the municipality's law-making officers or by an

official            to    whom      the    lawmakers          have       delegated       policy-making

authority;                or   2)    a     persistent         widespread           practice     of   city

officials            or     employees,         which,         although            not   authorized      by

officially adopted and promulgated policy, is so common and well

settled as to constitute a custom that fairly represents municipal

policy.19           We find that the facts of this case present an "official

         15
              Id.
         16
              Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-37.
         17
              Id.
         18
      Hare, 74 F.3d at 643, Colle, 981 F.2d at 246;                                         Rhyne 973
F.2d at 392.
         19
      Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir.1984).

                                                         6
policy" under the second of these definitions.

          The City's Code of Ordinances vests Chief Giacomozzi, as

Chief of Police, with administrative and policy-making authority.

Therefore, Giacomozzi's acts or omissions as policy-maker for the

jail may subject both him and the city to § 1983 liability.20                 While

acting     under    his   policy   making      authority,    Giacomozzi   issued

"General Order MSC-1-78," ("the General Order") consisting of rules

relating to the management and administration of the City jail.

These rules mandate in relevant part that male personnel dealing

with female prisoners should search the female prisoner's coats or

outer garments, but may not frisk them or conduct a pat-down search

unless there is a strong probability of finding a weapon.                       In

addition, female prisoners booked into the jail must be "thoroughly

and completely searched" by female personnel with the jailer

remaining       nearby,   then   placed   in    a   cell   separated   from   male

prisoners.       And finally, the regulations provide that "[a]nytime a

prisoner is released from his or her cell for any reason other than

release from custody, the prisoner shall be searched upon release

from and return to the cell."         The General Order does not regulate

the number of jailers needed to staff the jail.21

     Appellant Scott conceded at oral argument that this policy is


     20
          Id.
     21
      The General Order contains only three references to
staffing: 1) "[t]he Jailer shall be the booking officer when on
duty;" 2) "[i]n the absence of an on-duty Jailer, the assigned
desk officer shall assume the overall duties and responsibilities
of the jailer;" and 3) "the arresting officer shall book his or
her own prisoner if the desk officer is not available".

                                          7
constitutional as written.          Therefore, the General Order is not an

actionable "official policy" under the first definition of that

term.22       Scott contends, however, that there is an "unofficial"

staffing policy which is actionable under the second definition of

"official policy."         We agree.

        Since the late 1970's the City jail has been staffed by four

jailers, with one jailer working each of four shifts:            a.m., p.m.,

day, and relief.          At the time of Scott's detention, two male and

two female employees filled these positions.                  Thus, a female

detainee would necessarily be guarded by a single male jailer at

some    time     during    a   twenty-four   hour   period.    This    staffing

arrangement made it difficult, if not impossible, for the City

jailers to follow the mandates of the General Order.23                Yet, this

conflict between the written General Order and the day-to-day

staffing procedures existed for at least ten years before Scott's

detention.        In this situation, we conclude that the consistent

custom or "unofficial policy" of having only one unsupervised male

jailer present when a female detainee is in the jail constitutes an

"official policy" for the purposes of § 1983 liability.24

       22
            Webster, 735 F.2d at 841.
       23
      For example, if a female prisoner has to leave her cell
while a single male jailer is on duty, the jailer will have to
violate either the rule that the prisoner be searched both upon
exiting and reentering her cell, or the rule that all searches of
female prisoners be done by a female employee. In this case,
Scott left her cell a least three times to use the telephone.
       24
      See Monell, 436 U.S. at 691, 98 S.Ct. at 2036, (a
"permanent and well settled" custom may provide basis for
imposing liability on a municipality) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 168, 90 S.Ct. 1598, 1614, 26 L.Ed.2d

                                        8
2. Existence of a Constitutional Violation:

          The next step in our § 1983 analysis is to determine if

Scott's complaint alleges a constitutional deprivation.25                   The

sexual assault on Scott while she was a pre-trial detainee is not

covered     by   the   Eighth   Amendment,    as   the    Eighth    Amendment's

prohibition against "cruel and unusual punishment" applies only to

convicted prisoners and not to pretrial detainees like Scott.26              It

is clear however, that pretrial detainees are Constitutionally

entitled to at least as great a protection in their detention as

are convicted prisoners.27       This right arises from the substantive

protections of the Due Process Clause of the Fourteenth Amendment,

which     protects     an   individual's     liberty     interest   in   bodily

integrity.28     Although the Supreme Court has expressed a general

reluctance to expand the concept of substantive due process in §

1983 claims,29 it has concluded that the government owes a duty to

care for those whom have already been deprived of their liberty


142 (1970)); Webster, 735 F.2d at 841, (defining "official
policy" as including a "persistent widespread practice of city
officials and employees, which although not authorized by
officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents
municipal policy").
     25
          Collins, 503 U.S. at 120, 112 S.Ct. at 1066.
     26
      Ingraham v. Wright, 430 U.S. 651, 671, n. 40, 97 S.Ct.
1401, 1412, n. 40, 51 L.Ed.2d 711 (1977).
     27
      See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244,
103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).
     28
      Partridge v. Two Unknown Police Officers of the City of
Houston, 791 F.2d 1182, 1186 (5th Cir.1986).
     29
          Collins, 503 U.S. at 125, 112 S.Ct. at 1068.

                                      9
before the alleged constitutional violation occurs.30                      In such

cases, "the Due Process Clause of its own force requires that

conditions of confinement satisfy certain minimal standards for

pretrial detainees."31

          In this case, by detaining Scott on criminal charges, the

City had already deprived Scott of her liberty when the alleged

violation of her Constitutional rights stemming from Moore's sexual

assault     occurred.       The     City   therefore    had     a    constitutional

obligation under the Fourteenth Amendment to provide Scott with

minimal levels of safety and security. Scott's claim of inadequate

staffing challenges the adequacy of the levels of safety and

security     given     to   pretrial       detainees    in     the    City's   jail.

Therefore,     Scott's      claim     properly    alleges       a    constitutional

violation.

3. Did the City's Actions Extend beyond Negligent Oversight of
     Scott's Rights?

     Finally,     we    address     whether     the   City's    and    Giacomozzi's

failure to adequately staff the jail or to adopt a written policy

on adequate staffing for the jail extends beyond mere negligent

oversight of Scott's constitutional rights.                   Resolution of this

issue requires us to examine this court's recent en banc decision

in Hare v. City of Corinth, MS.32

     In Hare, this court attempted to clarify the divergent case


     30
          Id. at 126-27, 112 S.Ct. at 1069-70.
     31
          Id. at 127, 112 S.Ct. at 1070.
     32
          74 F.3d 633 (5th Cir.1996).

                                           10
law on the different standards used to measure pre-trial detainees'

constitutional rights to medical care and protection from harm.

The en banc court concluded there should be no distinction between

cases involving the right to medical care and those involving the

right     to    be    protected    from     harm.33      The   court   did    find   a

distinction, however, between cases involving episodic acts and

omissions        by    jail    officials,        and   cases   involving     general

conditions, practices and restrictions of confinement.34                     In cases

involving episodic acts or omissions by jail officials, the court

held that liability attaches only if the officers involved were

subjectively          and   "deliberately    indifferent"      to   the   prisoner's

rights.35       This high level of scrutiny insures that municipalities

will not be held liable for mere negligence, but will instead must

only answer for intentional violations of prisoners rights.36

          In contrast, in cases involving the general conditions of

confinement, there is an automatic assumption that the practice in

question was intentional.37           Therefore, in such cases, the proper

standard is whether the practice in question was "reasonably

related to a legitimate governmental purpose".38                When this test is

     33
          Id. at 643.
     34
          Id.
     35
      Id. at 643, adopting the standard set forth in Farmer v.
Brennan, --- U.S. ----, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
     36
          Id.
     37
          Id. at 645.
     38
      Id. at 640, adopting the standard set forth in Bell v.
Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

                                            11
properly applied, it is the functional equivalent of the subjective

"deliberate indifference" standard applied to the episodic acts of

prison officials.39

     In the present case, the staffing procedures in question

qualify as a general condition of confinement.     We therefore need

not inquire into Chief Giacomozzi's subjective intent in allowing

a single male jailer to guard female prisoners in such a manner

that he would by necessity have to violate the existing General

Order.      We need only inquire whether the practice was reasonably

related to a legitimate government goal.40

      It is our conclusion that a reasonable factual dispute exists

on this point, thereby precluding summary judgment. The defendants

have offered only financial considerations as an explanation for

the staffing policy at the Killeen City Jail.     Although financial

considerations may reasonably concern a municipality, such concerns

may not trump the constitutional rights of individuals who are left

at the mercy of the municipality.41     Furthermore, the record does

not reflect how often the City detains female prisoners, or how

difficult it would be to provide for an additional female staff




     39
          Id. at 643.
     40
          Id.
     41
      See, DeShaney v. Winnebago Co. Dep't of Social Services,
489 U.S. 189, 198, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989)
(recognizing that "when the state takes a person into its 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").

                                  12
member during those times.42

       In addition, the unofficial staffing policy at the Killeen

City jail does not appear to serve a reasonable safety goal, and

actually contradicts the official safety measures set forth in the

General Order.       Because the General Order reflects common concerns

about the safety and privacy of female inmates, the decision to

contradict the mandates of the General Order can actually be

interpreted as a sign of deliberate disregard of the constitutional

rights of female prisoners.

       It is our opinion that a reasonable jury could find that the

unofficial staffing policy at the Killeen City Jail resulted in a

violation of Scott's constitutional rights, and that the City's

actions in allowing such inadequate staffing went beyond negligent

oversight of prisoners' Constitutional rights.                      Therefore, we

VACATE the district court's grant of summary judgment on Scott's §

1983    claim   of     inadequate      staffing,     and   REMAND    for   further

proceedings.

       JERRY E. SMITH, Circuit Judge, dissenting:

       In what amounts to social engineering by judicial fiat, the

panel majority has decided that as a matter of constitutional

imperative, the city must maintain a minimum of two male guards, or

at least one female guard, in its jail whenever a female detainee

is   present.        Because   there    is    no   showing—even     remotely—of   a

       42
      In fact, the deposition testimony of Chief Giacomozzi
indicates that the officer in charge of the jail had the
discretion to call extra officers from the Killeen City Police
Department to the jail in times of need. Yet, inexplicably, this
procedure has never been used.

                                         13
constitutional violation by the city, and because the summary

judgment    evidence   does   not   support    a   finding   of   deliberate

indifference, I respectfully dissent.

                                     I.

     My first disagreement is over the standard we use to determine

municipal liability.     Both sides treat this as a controversy over

inadequate staffing and analyze the city's conduct under the

deliberate   indifference     standard.       Erroneously,    however,   the

majority applies the reasonable relationship standard of Bell v.

Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

                                     A.

     Deliberate indifference is the proper standard for assessing

municipal liability when the custom at issue is one of inadequate

staffing.    See Colle v. Brazos County, 981 F.2d 237, 245-46 (5th

Cir.1993);    Rhyne v. Henderson County, 973 F.2d 386, 393-94 (5th

Cir.1992).   The custom challenged in this case is one of providing

staffing that is inadequate to protect female detainees from sexual

assaults.    The plaintiff's challenge to this custom is that the

city's failure to adopt a different policy—i.e., to require the

presence of additional guards—caused her injury.              "The Supreme

Court has held that municipal failure to adopt a policy does not

constitute such an intentional choice unless it can be said to have

been "deliberately indifferent.' "        Id. at 392.

     Treating this case as one about conditions of confinement is

a misapplication of Hare v. City of Corinth, 74 F.3d 633 (5th

Cir.1996) (en banc).    The majority concludes, without explanation,


                                     14
that the city's custom of allowing a single male to guard a female

detainee is a condition of confinement.           At a high level of

generality, this could be so, in the sense that one of the

conditions in the jail is a lack of extra guards.         But, at that

level of generality, the omission that led to the suicide in Hare

also could be called a "condition of confinement":      A condition in

the jail was the lack of a guard to watch over the suicidal

detainee.

      The problem with the majority's approach is that it ignores

both the common-sense understanding of "conditions of confinement"

and the reasons articulated in Hare for distinguishing those

conditions from episodic acts or omissions.        In Hare, this court

carefully distinguished episodic acts or omissions from conditions

of confinement.     We did so because a pretrial detainee has a due

process right to be free from punishment, and a hardship amounts to

punishment when there is an intent to punish.         See Wolfish, 441

U.S. at 538, 99 S.Ct. at 1873 ("A court must decide whether the

disability is imposed for the purpose of punishment or whether it

is but an incident of some other legitimate governmental purpose.")

(emphasis added).

      When asking whether a jailer intended to punish a detainee,

the   reasonable   relationship   test   works   comfortably   in   "jail

condition cases," because intent can be presumed in the form of the

challenged condition, practice, rule, or restriction.          Hare, 74

F.3d at 644.       Thus, when the hardship of which the detainee

complains is the very act of imposing a condition, practice, rule,


                                  15
or restriction, the only question is whether there is a reasonable

relationship to a legitimate state interest.         In the case of

episodic acts or omissions, on the other hand, the reasonable

relationship test is more difficult to apply, as intent cannot be

presumed.1

     The lesson of Hare is that a condition of confinement is a

condition, practice, rule, or restriction that itself is the wrong

of which the detainee complains.      The common-sense interpretation

of a "condition of confinement" includes the number of bunks in a

cell, the number of showers and meals per day, and even a policy of

daily beatings.2   The intent to impose the hardship can be presumed


     1
      Hare, 74 F.3d at 645 ("Asking about the rationality of the
relationship between an official's episodic acts or omissions and
a legitimate governmental objective begs the underlying question
whether that official had the requisite mental state to establish
his liability as a perpetrator of the particular act or omission,
not as a dispenser of intended conditions or restrictions.").
     2
      See, e.g. Murphy v. Walker, 51 F.3d 714 (7th Cir.1995)
(treating shackling and revocation of telephone, television, and
cigarette privileges as a condition of confinement); Collanzo-
Leon v. U.S. Bureau of Prisons, 51 F.3d 315 (1st Cir.1995)
(treating disciplinary segregation and denial of telephone and
visitation privileges as a condition of confinement); United
States v. Millan, 4 F.3d 1038 (2d Cir.1993) (treating length of
pre-trial detention as a condition of confinement), cert. denied,
--- U.S. ----, 114 S.Ct. 1375, 128 L.Ed.2d 51, and cert. denied,
--- U.S. ----, 114 S.Ct. 1386, 128 L.Ed.2d 60 (1994); Hause v.
Vaught, 993 F.2d 1079 (4th Cir.1993) (treating restriction on
mail privileges as a condition of confinement), cert. denied, ---
U.S. ----, 114 S.Ct. 702, 126 L.Ed.2d 668 (1994); Brogsdale v.
Barry, 926 F.2d 1184 (D.C.Cir.1991) (treating overcrowding as a
condition of confinement); Lyons v. Powell, 838 F.2d 28 (1st
Cir.1988) (treating 22-23 hour confinement and placement of
mattress on the floor as a condition of confinement); Fredericks
v. Huggins, 711 F.2d 31 (4th Cir.1983) (treating policy of
refusing detainees access to drugs for rehabilitation as a
condition of confinement); Lareau v. Manson, 651 F.2d 96 (2d
Cir.1981) (treating overcrowding as a condition of confinement).

                                 16
from the existence of the policy.

     Here, the wrong of which the plaintiff complains is the sexual

assaults;     the policy she attacks is the lack of additional

staffing.    One cannot infer an intent to cause the wrong merely

from the existence of the challenged policy.         Certainly, if the

city's policy were the complained-of disability (such as in a

double-bunking   case),   the   standard   for   municipal   and   jailer

liability theoretically could merge.3 In this case, it should not.4

     3
      I pause to point out that Hare dealt with the question of
when a detainee's constitutional rights have been violated. As
the court pointed out, determining the existence of a
constitutional violation is only the first step in determining
municipal liability for that violation. Hare, 74 F.3d at 649 n.
4.

          In the case of an omission or episodic act, the
     existence of a constitutional violation would be determined
     by the subjective deliberate indifference standard.
     Municipal liability for that violation would be determined
     under the objective deliberate indifference standard.

            We separate the two issues: the existence of a
            constitutional violation simpliciter and a
            municipality's liability for that violation. Different
            versions of the deliberate indifference test govern the
            two inquiries. Our opinion in this case makes clear
            that to prove an underlying constitutional violation in
            an individual or episodic acts case, a pre-trial
            detainee must establish that an official acted with
            subjective deliberate indifference. Once the detainee
            has met this burden, she has proved a violation of her
            rights under the Due Process Clause. To succeed in
            holding a municipality accountable for that due process
            violation, however, the detainee must show that the
            municipal employee's act resulted from a municipal
            policy or custom adopted or maintained with objective
            deliberate indifference to the detainee's
            constitutional rights.

     Id.

          If a non-policymaker imposed a condition of confinement
     on a detainee, see, e.g., Bryer v. Creati, 915 F.2d 1556

                                   17
                               B.

     A failure to adopt a policy can be deliberately indifferent

when it is obvious that the likely consequence of not adopting a

policy will be a deprivation of constitutional rights.   City of

Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103


     (1st Cir.1990) (unpublished) (applying
     condition-of-confinement analysis where a police officer
     left open a window during freezing weather), the reasonable
     relationship test would be used to determine whether the
     detainee's constitutional rights had been violated. To
     determine municipal liability for the violation, the
     objective deliberate indifference test would be used,
     because a policymaker did not promulgate a policy of
     imposing that condition of confinement.

          The majority has assumed that when a policymaker
     creates the condition of confinement, the standards for
     determining the underlying constitutional violation and
     municipal liability are the same. Because I disagree with
     the majority that this is a case about conditions of
     confinement, I do not address that contention. See
     generally Roman v. Jeffes, 904 F.2d 192, 197-98 (3d
     Cir.1990) (applying the reasonable relationship test to
     determine whether a policy of limiting a detainee to one bag
     of possessions during a transfer violated his constitutional
     rights, but applying the objective deliberate indifference
     standard to determine whether the municipality was liable
     for promulgating the rule).
     4
      Even if the district court relied on an incorrect legal
standard, the plaintiff has waived any challenge to that error.
The district court granted summary judgment under the deliberate
indifference standard, and plaintiff has not challenged the use
of that standard. Instead, she has consistently argued that
there is a material fact issue on the question of deliberate
indifference.

          The majority's reliance on Hare is misplaced. The
     reasonable relationship test predated Hare. If the
     plaintiff believed that the district court applied the wrong
     standard, she should have raised that argument on appeal.
     That the en banc court limited the applicability of the
     reasonable relationship test hardly justifies an exception
     to the waiver rule. The plaintiff was on notice that the
     reasonable relationship test existed, and she has not argued
     that it should apply to this case.

                               18
L.Ed.2d 412 (1989).    The plaintiff relies on the affidavit of

Charles Craig, an expert on jail policy, who averred that his

experience showed him that a prison should have female officers to

prevent sexual assaults, or that male officers should be supervised

when allowed access to female inmates. He concluded that a failure

to have two guards or a female guard could not be justified.

     The record also establishes that the city has followed the

same staffing procedures since the late 1970's, yet no incident

such as this has transpired.5      Jailers were subjected to a number

of background checks, including a polygraph test,6 and the city

limited contact   between   male   and   female   jailers   in   order   to

minimize the possibility of sexual misconduct.7             The jail is

     5
      There is no evidence that Chief Giacomozzi has ever had any
complaints of sexual assault by a jailer or any related type of
complaint prior to the incident at issue here.
     6
      The City subjected Moore, the perpetrator of this incident,
to a background investigation, medical examination and polygraph
test as a condition of his employment. In addition, Moore had
been previously employed as a commissioned police officer,
without incident, for four years prior to his employment with the
jail. He was trained in the official policies of jail management
by experienced jailers.
     7
      General Order MSC-1-78 ("the General Order"), which
regulates the management of the city jail, prohibits male
personnel from frisking or conducting a pat-down search of a
female prisoner. It also requires that a female be searched by
female personnel. Moreover, anytime a prisoner is released from
her cell for any reason, the General Order requires that she be
searched upon release from and return to the cell. Finally, the
policy allows for additional staffing by commissioned officers of
the police department when the holding facility's population is
large or if a difficult prisoner is in custody.

          The majority claims that the staffing policy made it
     inevitable that the General Order would be disregarded. I
     find nothing in the record to support such a conclusion or
     inference. The majority bases its conclusion on the fact

                                   19
located on the first floor of the police department, in the patrol

division area, and a patrol duty sergeant would periodically check

on jail personnel. More than one hundred uniformed police officers

in the building had unlimited access to the jail at all times.

       There is no jury question as to whether the failure to have

additional staffing amounts to deliberate indifference.           The city

took   numerous   precautions   to    safeguard   the   safety   of   female

detainees, including the requirements of the General Order and the

extensive background checks of the jailers. See Rhyne, 973 F.2d at

393 (finding that the existence of a policy—albeit an inadequate

one—demonstrated that the municipality was not indifferent, in the

literal sense of the word).          A patrol sergeant was assigned to

monitor the jail and would periodically stop by to check on jail

personnel.

       In summary, Craig's testimony does not establish that the city

policymakers faced an obvious risk and were consciously indifferent

to it.    At most, the evidence could be construed to show that the

jail might have been better managed, or even that Giacomozzi was

not prescient in failing to consider the risk that well-trained

jailers would, without warning, assault a female detainee.

                                     II.

       Even assuming that the "reasonable relationship" test should

apply to this case, there is no jury question as to whether the


       that the four jailers could not possibly follow the General
       Order. What the majority fails to consider is that the jail
       is located where the jailers could easily call for a
       uniformed officer to assist them when a female detainee is
       booked and searched.

                                     20
city's custom was reasonably related to a legitimate government

interest.   I find the majority's conclusions surprising;      the

opinion can be supported only by misunderstanding the summary

judgment evidence and by failing to apply the deference that

Wolfish demands.

     The reasonable relationship test is a highly deferential test

that, as the majority acknowledges, should be no different, in

result, from the deliberate indifference standard.   As this court

has explained,

     The "reasonably related to a valid penological [interest]
     standard" never purported to allow recovery for mere
     negligence. To the contrary, this test is deferential to jail
     rulemaking; it is in essence a rational basis test of the
     validity of jail rules. That is, asking whether a rule is
     reasonably related to a legitimate governmental objective is
     much like asking whether a legislative enactment has any
     rational basis, except in the context of jail administration
     the legislative purpose is a given—typically a penological or
     administrative purpose. Violation of the Bell test requires
     acts or omissions not too distant from a standard of arbitrary
     and capricious conduct.

Hare, 74 F.3d at 646.8    In Wolfish, the Court articulated the

deference courts must accord prison officials:

     "The problems that arise in the day-to-day operations of a
     corrections facility are not susceptible of easy solutions.
     Prison   administrators   therefore  should   be   accorded
     wide-ranging deference in the adoption and execution of

     8
      See also Wolfish, 441 U.S. at 542, 99 S.Ct. at 1875 (citing
rational basis cases to support the use of a reasonable
relationship test); id. at 586, 99 S.Ct. at 1898 (Stevens J.,
dissenting) ("In short, a careful reading of the Court's opinion
reveals that it has attenuated the detainee's constitutional
protection against punishment into nothing more than a
prohibition against irrational classifications or barbaric
treatment. Having recognized in theory that the source of that
protection is the Due Process Clause, the Court has in practice
defined its scope in the far more permissive terms of equal
protection and Eighth Amendment analysis.").

                                21
     policies and practices that in their judgment are needed to
     preserve internal order and discipline and to maintain
     institutional security. "Such considerations are peculiarly
     within the province and professional expertise of corrections
     officials, and, in the absence of substantial evidence in the
     record to indicate that the officials have exaggerated their
     response to these considerations, courts should ordinarily
     defer to their expert judgment in such matters' "

441 U.S. at 547-48, 99 S.Ct. at 1878-79 (citations omitted);           see

also Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227,

3231-32,   82    L.Ed.2d    438   (1983)   (reaffirming   the   deferential

standard of Wolfish ).

     When applying the Wolfish test, we must take, as a given, that

the city's policy is based on a penological purpose and must ask

whether the policy at issue is reasonably related to that end.

Hare, 74 F.3d at 646.       In this case, the question is whether the

city's policies are reasonably related to the goal of providing a

safe detention center for female detainees. In other words, do the

alleged deficiencies with the city's policies prove that those

policies were arbitrary and capricious?

     The custom at issue is broader than that which the majority

describes.      The majority is correct that it is a custom to have

four guards—two of whom are women—and to split their duties into

four shifts over a twenty-four-hour period.               The policy also

includes provisions to protect female detainees from some types of

sexual molestation.        Additionally, the city requires substantial

background checks of its applicants.

     The plaintiff has failed to show the existence of facts

demonstrating that the city's custom was arbitrary and capricious.

The city took precautions to protect the safety of female inmates

                                      22
and made a decision to staff its jails based on limited financial

resources.      There is no evidence demonstrating that, objectively,

such a policy generally would fail to protect pretrial detainees.

In fact, the evidence demonstrated that for ten years, the city had

not received any complaints of sexual assaults.               The city's choice

may not have been perfect, but it was not unconstitutional.                     See

Wolfish,   441    U.S.   at   542   n.    25,   99    S.Ct.   at    1876   n.   25

("Governmental action does not have to be the only alternative or

even the best alternative for it to be reasonable, to say nothing

of constitutional.").

      "Courts must be mindful that these injuries spring from

constitutional requirements and that judicial answers to them must

reflect that fact rather than a court's idea of how best to operate

a   detention    facility."     Id.      at   539,   99   S.Ct.    at   1874.    I

respectfully dissent.




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