                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    UNITED STATES COURT OF APPEALS
                                                             August 8, 2007
                        FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk


                             No. 06-50636



     BRANDI LYNN HARDEMAN
                                         Plaintiff-Appellant,

                                  v.

     KERR COUNTY TEXAS, MOSES MARRERO,
     In His Individual Capacity,

                                         Defendants-Appellees.



         Appeal from the United States District Court for the
            Western District of Texas, San Antonio Division
                              (04-CV-584)



Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     This case arises from jail guard Moses Marrero’s alleged rape

of Plaintiff-Appellant Brandi Lynn Hardeman while she was an inmate

at Kerr County Jail.    Hardeman appeals the district court’s grant

of summary judgment in favor of Kerr County.    At issue is whether

or not Kerr County was deliberately indifferent in its hiring and

supervision of Marrero.     We affirm.


     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
I.   FACTUAL BACKGROUND AND PROCEDURAL HISTORY

     In early 2002, Moses Marrero applied for employment as a

jailer in Kerr County, Texas.                His application reflected that he

had previously        worked    as    a   police        officer      in    the    Harlandale

Independent School District (“Harlandale ISD”) from April 1992

until March 1994, and as a juvenile detention officer with the

Bexar County Juvenile Detention Center (“Bexar JDC”).                            Marrero did

not answer the application’s question as to whether he had ever

been fired,     and    did     not    sign       the    application        certifying       the

statements as true and correct.

     Kerr County subsequently performed an applicant background

investigation on Marrero.             Bexar JDC described Marrero as honest,

dependable and reliable.             When asked if he was eligible for re-

hire, Bexar     JDC    referred       Kerr       County       to   its    human    resources

department, but there is no evidence that Kerr County continued the

inquiry.     There is also no evidence that Kerr County contacted

Harlandale ISD.        A record from the Texas Employment Commission,

however,   indicates      that       Harlandale         ISD    fired      him    for   making

“improper advances towards high school (female) students.”                                 Kerr

County hired Marrero, effective March 11, 2002.

     Not long after being hired, Marrero committed the first of

what would be several infractions over the short span of his

employment    with     Kerr     County.            On    April      19,    2002,       a   jail

administrator    counseled           Marrero      about       “putting     his     hands     on

inmates,” and being “too friendly” with female inmates.                            Ten days

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later, Marrero admitted to calling a female ex-inmate to establish

a sexual relationship.       Kerr County suspended him two days without

pay.    At that time, Marrero was also counseled for taking female

inmates out of the recreation yard and putting them back in their

cells without a female officer present.          On May 21, Marrero called

a female inmate a “lazy ass bitch.”       On July 8, Marrero called some

of the inmates “bitches,” among other names.             He admitted his

actions, but added his own comment to the supervisor’s report,

asserting that “I will not let any inmate punk me out.”                  Kerr

County suspended Marrero another two days without pay and warned

him that “termination may result” in the future.

       Hardeman alleges that Marrero entered her cell on July 26,

2002, forced her to perform oral sex on him, and took her into the

shower area where he forcibly raped her.          After initially denying

any    improper   conduct,    Marrero    later    admitted   that   he   had

“consensual” sex with Hardeman.

       Kerr County immediately suspended Marrero pending further

investigation, then terminated him on August 1, 2002.               Marrero

subsequently pled guilty to the offense of Violation of Civil

Rights of a Person in Custody; Improper Sexual Activity, and is now

serving a five-year probated sentence.        On July 1,     2004, Hardeman

filed this lawsuit in the district court, alleging that Kerr County

violated her rights under 42 U.S.C. § 1983 when Marrero attacked

her. Following discovery, Kerr County moved for, and the district

court granted summary judgment.         Hardeman appeals.

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II.   DISCUSSION

      This Court reviews a grant of summary judgment de novo, using

the same criteria as the district court.           Hanks v. Transcon. Gas

Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).                 Summary

judgment is appropriate if the record reflects “that there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.”          FED. R. CIV. P. 56(c).

A court’s role at the summary judgment stage is not to weigh the

evidence or determine the truth of the matter, but rather to

determine only whether a genuine issue exists for trial.            Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

      Kerr County acknowledges that Marrero had sexual relations

with Hardeman during her incarceration and that he was convicted

for that offense.    The County, however, maintains that it is not

liable for Marrero’s actions.         In order to hold a municipality

liable under 42 U.S.C. § 1983 for its employee’s acts, a Plaintiff

must show that a policy of hiring or supervising caused those acts.

It is not enough for a § 1983 Plaintiff to merely identify conduct

properly    attributable   to   the       municipality,   but   rather,   the

Plaintiff must demonstrate that “the municipality, through its

deliberate conduct, was the ‘moving force’ behind the injury

alleged.”    Bd. of County Comm’rs of Bryan County, Okla. v. Brown,

520 U.S. 397, 404 (1997).       Hardeman argues that liability arises

from both the hiring and the supervision of Marrero.            We consider


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each potential basis in turn.

      A.     Kerr County is not liable based on hiring Marrero.

      The Supreme Court has established two fundamental requirements

for holding a city liable under § 1983 for inadequate hiring

policies.    First, the municipal policy must have been adopted with

“deliberate indifference” to its known or obvious consequences.

Snyder v. Repagnier, 142 F.3d 791, 795 (5th Cir. 1998).                      Second,

the   municipality         must    be    the   “moving        force”   behind     the

constitutional violation.          Id.    For Kerr County to be liable based

upon hiring Marrero, we must find that adequate scrutiny of his

background would have led a reasonable supervisor to conclude that

the plainly obvious consequence of hiring him would have been the

alleged rape of a female inmate.                 See Gros v. City of Grand

Prairie,     209    F.3d    431,   433–34      (5th    Cir.    2000)   (quotations

omitted)(“[D]eliberate indifference exists where adequate scrutiny

of an applicant’s background would lead a reasonable supervisor to

conclude that the plainly obvious consequences of the decision to

hire would be the deprivation of a third party’s constitutional

rights.”).    Even a showing of heightened negligence in hiring will

not   give   rise    to    a   constitutional         violation.       Id.   at   434

(“[D]eliberate indifference to the known or obvious consequences of

a hiring decision can amount to a constitutional violation on the

part of the decision maker, but a showing of simple or even

heightened negligence will not suffice.”).


                                          5
      There must be a strong connection between the background
      of the particular applicant and the specific violation
      alleged.    Accordingly, plaintiffs cannot succeed in
      defeating summary judgment merely because there was a
      probability that a poorly-screened officer would violate
      their protected rights; instead, they must show that the
      hired officer was highly likely to inflict the particular
      type of injury suffered by them.


Id.

      It is obvious that Kerr County should have done a better job

screening Marrero.    His omission of answers to key questions,

such as whether he had previously been fired, alone should have

been cause for alarm.    Furthermore, had the County contacted

Harlandale ISD it likely would have learned that the district

fired Marrero for making improper advances towards female

students.    Such information may have prompted the County to

rethink hiring him for a position that would place him in close

proximity to female inmates on a regular basis.    Even if the

County was negligent in hiring him, however, that still is not

sufficient to hold the County liable for the constitutional

violation.    Id.   at 433 (stating that “a showing of simple or

even heightened negligence will not suffice”).

       There are no grounds to find that the alleged rape in

question was a “plainly obvious consequence” of hiring him. Id.

Even if the County had done a thorough job of investigating

Marrero, there was absolutely no history of violence, sexual or

otherwise, to be found.    While the grounds for his discharge from


                                   6
Harlandale ISD were troubling, especially in retrospect, it

requires an enormous leap to connect “improper advances” towards

female students to the sexual assault at issue here.     Id. (“There

must be a strong connection between the background of the

particular applicant and the specific violation alleged.”).

Because Hardeman cannot establish that Marrero was highly likely

to commit rape, there is no genuine issue of material fact, and

summary judgment was proper as to the hiring of Marrero.

     B.    Kerr County is not liable based on its supervision of
           Marrero.

     The rape was a “discrete, episodic act . . . committed with

deliberate indifference” to the Plaintiff’s rights.     Scott v.

Moore, 114 F.3d 51, 54 (5th Cir. 1997) (en banc).    In order for

the County to be liable, however, the Plaintiff must put forth

facts “sufficient to demonstrate that the [rape] resulted from a

municipal custom, rule, or policy adopted or maintained with

objective deliberate indifference to the detainee’s

constitutional rights.”   Id. (citations omitted).    As with hiring

decisions, this is a hefty burden for the Plaintiff to meet.

     There is no real question that Kerr County maintained any

official rules or policies, including training, with deliberate

indifference to detainees’ constitutional rights.    It assuredly

did not.   To the contrary, Kerr County set in place a variety of

regulations to assure the protection of detainees’ rights.    New


                                 7
guards receive a copy of the policy manual and undergo an

informal training program.    The County’s policy prohibits any

person from engaging in any form of sexual misconduct with an

inmate, even if consensual on the part of the inmate.    Staff

members are required to report any violations to the jail

administrator or sheriff.    The jail’s policies dictate that a

male guard conducting “checks” on a female inmate is required to

summon a female officer.    If a female officer is not available,

the male guard must notify the control room so that monitoring

can take place.   Actions and regulations such as these, as we

indicated in Scott, “indicate[] not apathy, but concern.” 114

F.3d at 55.

      Marrero’s supervisors warned him not to touch the inmates,

told him that he could not pursue relationships with past or

present inmates, and counseled him about the jail’s rules on

multiple occasions.   Within a short time, he nevertheless

violated what he knew were the rules and policies of the jail and

raped Hardeman.   As unfortunate as that turn of events was, Kerr

County is not liable.    At most, it could be argued that the

County was negligent in not firing Marrero after his earlier

violation of the jail rules.    Mere negligence, however, is not a

basis to impose liability on the County in this situation.       See

Gros, 209 F.3d at 433.   We find that the County did not display

deliberate indifference in supervising Marrero, and is not


                                  8
liable.

III. CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment.




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