                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3730
                                   ___________

Gavin Moyle, by Jessica Repp, his          *
mother and natural guardian; Jessica       *
Repp, as trustee for the next-of-kin       *
of Carl Moyle, deceased,                   *
                                           *
               Plaintiffs - Appellants,    *
                                           * Appeal from the United States
                                           * District Court for the District
       v.                                  * of Minnesota.
                                           *
Bruce Anderson, individually and in        *
his official capacity; Patrick Carr,       *
individually and in his official capacity; *
Angela Knutson, individually and in        *
her official capacity; Brian Frank,        *
individually and in his official capacity; *
Cory Schoeck, individually and in his *
official capacity; Heather Pickett,        *
individually and in her official capacity; *
Sherburne County,                          *
                                           *
              Defendants - Appellees.      *
                                     ___________

                             Submitted: June 10, 2009
                                Filed: July 9, 2009
                                 ___________

Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
                           ___________
MURPHY, Circuit Judge.

       Appellants Gavin Moyle and his trustee, Jessica Repp, brought this action
against Sherburne County and several county employees seeking damages for the
murder of Carl Moyle, Gavin's father, at the Sherburne County Jail. Appellants
asserted three claims: (1) a § 1983 failure to protect claim against the individual
defendants; (2) a § 1983 municipal liability claim against the county; and (3) a state
law wrongful death claim. The district court1 granted summary judgment to the
individual defendants and to the county, and also dismissed the state law wrongful
death claim without prejudice.

        On the morning of August 8, 2006 Elk River police arrested Carl Moyle for the
gross misdemeanor of no proof of insurance. Moyle was taken to the Sherburne
County Jail where he was booked and placed in a cell in the Alpha Intake Unit (AIU)
after it was determined that he would be unable to go before a county judge that day.

       The same morning Bruce Christenson was transported from Oak Park Heights
Prison, the only Class 5 maximum security state prison in Minnesota, to the Sherburne
County Jail in anticipation of a proceeding before the county district court the
following day. The majority of inmates in Oak Park Heights are designated as posing
the highest risk of escape and/or violence, and Christenson was housed in the prison's
segregation unit because of his knife attack on a fellow inmate at a different
correctional facility in St. Cloud. At the time of that attack, Christenson had been
serving a 108 month sentence for first degree aggravated robbery, theft of a motor
vehicle, theft, and first degree test refusal. Christenson's scheduled appearance before
the state district court was in relation to the second degree assault with a deadly
weapon charge arising from the St. Cloud incident.



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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       Christenson was transported from Oak Park Heights by a Sherburne County
transportation deputy. No one from the county had contacted Oak Park Heights to
inquire about Christenson's criminal or incarceration history, and no one at Oak Park
Heights had notified the county about Christenson's violent tendencies. An employee
in the Oak Park Heights records office did testify that while the transportation deputy
was in her office, she had made an "offhand" remark that he was "picking up one of
our bad boys from seg." The deputy testified that he never heard her statement and
that he would have communicated the information to county officials if he had.

       When Christenson arrived at the jail, he was booked by a county corrections
officer. The booking policy at the time required the officer to ask an arriving inmate
several questions, to observe the inmate's demeanor, to review any additional
information provided about the inmate, and then to classify the inmate as either high
or low risk. If there was no information provided about the inmate's previous history,
the policy did not require the officer to seek such information. Incoming inmates
classified as low risk, including those transferred from other correctional facilities,
were placed in the AIU for a 72 hour observation period, after which their
classification was reviewed. If classified as high risk, inmates were placed in a
separate housing unit. The booking policy had been written by the jail administrator
and the commander in the late 1990's and had subsequently been reviewed by the
Minnesota Department of Corrections (DOC) in 2004 and 2006. Following each
inspection, the DOC had concluded that the county's booking policy complied with
Minnesota rules governing correctional facilities.

       The officer responsible for booking Christenson was aware that he had been
transported from Oak Park Heights and that he was to be charged with second degree
assault. No further details were provided the officer, and the officer did not seek
additional information. Thus, the booking officer was unaware that Christenson had
been in segregation 23 hours a day at Oak Park Heights, that he had a history of
mental illness, and that the assault related to his court appearance had been an
unprovoked, violent attack on a fellow inmate. The officer classified Christenson as
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low risk, based on the information she had and Christenson's calm, polite demeanor
during the booking process.

       Pursuant to the county's booking policy, Christenson was then placed in the
AIU, a small unit with six cells and an open area. Inmates in the unit were free to
come and go from their individual cells. Christenson was placed in a unit adjacent to
Moyle's cell. Eight hours later, at approximately 9:00 p.m., Christenson walked into
the cell where Moyle was asleep. Using an aluminum handrail he had pulled from the
wall of his own cell, Christenson bludgeoned Moyle to death before jail personnel
realized what was happening.

        Appellants brought this action pursuant to 42 U.S.C. § 1983 and state law
against the county and the individual officers involved, alleging that the defendants
had failed to provide for Moyle's physical safety, in violation of the Fifth, Eighth, and
Fourteenth Amendments. After the defendants moved for summary judgment, the
district court ruled that none of the individuals had demonstrated deliberate
indifference to Moyle's safety and that appellants could not prevail on their individual
§ 1983 claims as a result. The court noted that the record was devoid of any evidence
of prior incidents where a violent inmate had been placed in the AIU or any general
population unit as a result of inadequate information about the inmate's violent
tendencies. The court also found significant the DOC's previous inspections and
approval of the county's booking policy, concluding that the county could not be held
liable under § 1983 without any notice that the county's policies were defective or
posed an obvious risk of harm to inmates and without any constitutional violation by
the individual defendants. The court declined to exercise jurisdiction over appellants'
state law wrongful death claim and dismissed it without prejudice. Appellants appeal
only the district court's grant of summary judgment on their municipal liability claim
against the county under § 1983.

     We review de novo a grant of summary judgment and may affirm on any
grounds supported by the record. Bass v. SBC Commc'ns, Inc., 418 F.3d 870, 872
                                      -4-
(8th Cir. 2005). Summary judgment is proper when the evidence viewed in the light
most favorable to the nonmoving party presents no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fischer v. Andersen
Corp., 483 F.3d 553, 556 (8th Cir. 2007).

        To establish municipal liability under § 1983, a plaintiff must show that a
constitutional violation was committed pursuant to an official custom, policy, or
practice of the governmental entity. Monell v. N.Y. Dep't of Soc. Servs., 436 U.S.
658, 690-92 (1978). There are two basic circumstances under which municipal
liability will attach: (1) where a particular municipal policy or custom itself violates
federal law, or directs an employee to do so; and (2) where a facially lawful municipal
policy or custom was adopted with "deliberate indifference" to its known or obvious
consequences. Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir. 2008).
There need not be a finding that a municipal employee is liable in his or her individual
capacity before municipal liability can attach. Speer v. City of Wynne, 276 F.3d 980
(8th Cir. 2002); Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir. 1992) ("A public entity
or supervisory official may be held liable under § 1983 even though no government
individuals were personally liable.").         Where an official policy is itself
unconstitutional or directs employees to take unconstitutional action, no evidence
beyond a statement of the policy and its exercise is necessary to establish § 1983
liability. Szabla v. City of Brooklyn Park, 486 F.3d 385, 389-90 (8th Cir. 2007).

       Appellants assert that the county's booking policy at the time of Moyle’s murder
was itself unconstitutional and that its exercise was the moving force behind Moyle's
death. Their argument centers on two aspects of the booking policy: it directed
officers to place incoming inmates in the AIU for 72 hours unless classified as high
risk by the booking officer and it did not require officers to seek out additional
information about incoming inmates’ criminal or incarceration histories before making
that classification. To establish that the county's policy was unconstitutional,
appellants rely primarily on the Fifth Circuit case of Janes v. Hernandez, 215 F.3d 541
(5th Cir. 2000), in which municipal liability was imposed on a county for failure to
                                           -5-
segregate violent inmates from nonviolent inmates. The jail policy in Janes was to
house all inmates in a single cell, regardless of their known violent or nonviolent
histories. Id. at 542. Only after an inmate became violent towards other inmates was
there any reclassification. Id. Moreover, the policy did not permit officers to assist
a victim of violence without first obtaining the consent of a superior. Id.

        The undisputed facts in this case do not resemble those confronted by the Fifth
Circuit in Janes. The county’s booking policy did not sanction the placement of
violent inmates with nonviolent inmates in the AIU: its policy was that an incoming
inmate should be classified as high or low risk after completion of an intake interview.
Those designated as high risk were then housed in a separate area of the jail. The
county thus intended to segregate violent inmates from nonviolent inmates, and its
policy did not prohibit the booking officer from seeking additional information about
an inmate beyond that provided by the transferring institution. A policy which does
not “affirmatively sanction” unconstitutional action, and which instead relies on the
discretion of the municipality’s employees, is not an unconstitutional policy.
Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir. 2008); Dick v.
Watonwan County, 738 F.2d 939, 943 (8th Cir. 1989). The policy of the Sherburne
County Jail vested discretion in the booking officer to determine whether additional
information about an inmate's criminal or incarceration history was necessary and
whether the inmate posed a risk to others and needed to be placed in a separate unit.
We conclude that the county's booking policy at the time of Moyle's murder was not
itself unconstitutional.

        Because the county's policy was facially lawful and did not compel
unconstitutional action, appellants have the high burden of proving that the county's
decision to maintain the policy was made with deliberate indifference to its known or
obvious consequences. Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 407
(1997). The standard for deliberate indifference is objective; a governmental entity
is liable if it has maintained “a policy in which the inadequacy is so obvious, and the
inadequacy is so likely to result in the violation of constitutional rights” that the
                                            -6-
policymakers can be said to have been deliberately indifferent. City of Canton v.
Harris, 489 U.S. 378, 390 (1989); Spencer v. Knapheide Truck Equip. Co., 183 F.3d
902, 905-06 (8th Cir. 1999). A showing of simple or even heightened negligence will
not suffice. Brown, 520 U.S. at 404.

       Appellants assert that the county's booking policy contained inadequate
safeguards to protect inmate safety by failing to require officers to seek information
about an incoming individual's history for violence prior to classification. Appellants
contend that a genuine issue of material fact exists as to whether that inadequacy rises
to the level of deliberate indifference. They rely heavily on deposition testimony in
which the jail administrator concedes that had the booking officer known the details
of Christenson's prior attack on a fellow inmate, he would have been classified as high
risk and placed in a separate unit. This testimony reflects the administrator's hindsight
assessment of the situation preceding Moyle's death, but it does not support the
conclusion that the county failed to adopt adequate safeguards as the result of a
"deliberate choice to follow a course of action" in the face of obvious risk to inmate
safety. Szabla, 486 F.3d at 390.

       Appellants have not offered any evidence that the county had notice of an
alleged inadequacy in the booking policy or that the policy's alleged inadequacy was
so patently obvious that the county should have known that a constitutional violation
was inevitable. Russell v. Hennepin County, 420 F.3d 841, 848 (8th Cir. 2005).
There was no evidence that the county had had any prior incidents of violence in the
AIU due to the misclassification of inmates, which would have placed the county on
notice of deficiencies in its booking policy. To the contrary, the DOC had twice
inspected the county's booking and classification policy and on each occasion deemed
the policy compliant with the rules governing detention facilities in Minnesota. Given
this record, we cannot conclude that the county made a deliberate decision not to
require officers to obtain additional information as to the criminal and incarceration
histories of incoming inmates in the face of a known or obvious risk to inmate safety.

                                          -7-
        The facts of this case are undeniably tragic. It may be of limited consolation
to appellants that the county has altered its booking policy since Moyle's death to
protect the safety of future inmates. The record here just does not support a
conclusion that the county maintained its policy in the face of an obvious risk to the
constitutional rights of its inmates. Although the actions of the county and its
employees in placing Christenson in the AIU might be seen as negligent, appellants
have not made out a record of deliberate indifference as required to impose § 1983
liability on the county.

      For these reasons we affirm the judgment of the district court.
                        ___________________________




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