                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-1800
                                    ___________

Sylvia Ware,                             *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri
Jackson County, Missouri,                *
                                         *
             Appellant.                  *
                                    ___________

                          Submitted:    November 17, 1997

                               Filed: July 27, 1998
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge,1 and McMILLIAN and WOLLMAN,
      Circuit Judges.
                           ___________


McMILLIAN, Circuit Judge.




      1
       The Honorable Pasco M. Bowman succeeded the Honorable Richard S. Arnold
as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close
of business on April 17, 1998.
        Jackson County, Missouri (the County), appeals from a final order entered in the
United States District Court2 for the Western District of Missouri in favor of inmate
Sylvia Ware (Ware), following a jury verdict of $50,000 on her 42 U.S.C. § 1983
claim.3 Ware v. Jackson County, No. 95-0477-CV-W-BD (W.D. Mo. Feb. 19, 1997)
(hereinafter “slip op.”). For reversal, the County argues that the evidence was
insufficient as a matter of law to establish (1) a continuing, widespread, persistent
pattern of unconstitutional conduct by county employees; (2) deliberate indifference by
the County to a substantial risk of harm to Ware; and (3) a causal link between the
County’s conduct and Ware’s injury. In addition, the County contends that the district
court erred in omitting the words “continuing,” “widespread,” and “persistent” from
the jury instruction on “pattern of unconstitutional conduct” and in instructing the jury
that the Director of the Jackson County Department of Corrections (JCDC or “the jail”)
is a final policymaker for the County. For the reasons discussed below, we affirm the
order of the district court.

                                     Jurisdiction

       The district court had subject matter jurisdiction over this civil rights action
under 28 U.S.C. § 1343. Jurisdiction on appeal is proper based upon 28 U.S.C.
§ 1291, and the notice of appeal was timely filed under Rule 4(a) of the Federal Rules
of Appellate Procedure.




      2
        The Honorable Sarah W. Hays, United States Magistrate Judge for the Western
District of Missouri.
      3
       In addition, the district court granted Ware’s motion for attorneys’ fees. The
County does not contest this ruling as a separate issue on appeal. Nor does the County
challenge the district court’s denial of its motion for a new trial.

                                          -2-
                                         Facts

       This case arises out of the rampant sexual misconduct of employees at the JCDC
toward female inmates. Ware was an inmate at the JCDC in August 1993. At all
relevant times, Megerman served as the director of the JCDC. In 1995 Ware brought
a § 1983 action against the County, alleging that JCDC Corrections Officer (CO) John
Toomer raped her in violation of the Eighth Amendment while she was a JCDC inmate.
A jury returned a verdict of $50,000 in favor of Ware and against the County on
May 10, 1996. The following underlying facts are stated in the light most favorable to
the verdict and are largely derived from the order of the district court denying the
County’s post-trial motion for judgment as a matter of law or, in the alternative, for a
new trial. See slip op. at 4-6, 10-15, 18-20.

CO Toomer’s Sexual Misconduct and the County’s Response

       CO Toomer began working at the JCDC on or about March 20, 1993. Less than
one month later, inmate Jacqueline Dela Cruz alleged that Toomer ordered another
inmate, Mary Hylton, to expose her genitalia to him. According to Dela Cruz, on at
least two separate occasions, she overheard CO Toomer tell Hylton, who occupied a
cell across from Dela Cruz, that Hylton would have to raise her nightshirt and pull
down her pants in order to obtain a candy bar. In addition, CO Toomer would
frequently open Hylton’s cell, make obscene sexual gestures to Hylton, and talk to
Hylton about oral sex. On one occasion, CO Toomer allowed a male inmate to look
in on Dela Cruz while she used the toilet. Dela Cruz also observed CO Toomer and
three male trustees having sex with female inmates in the showers.

       At trial, Hylton corroborated Dela Cruz’s allegations and testified to other
incidents in which CO Toomer performed oral sex on her and had her perform oral sex
on him, allowed a male inmate to observe her use the toilet, asked her for her telephone
number and address, engaged in sexual intercourse with her, and threatened her not to

                                          -3-
tell anyone about these incidents. At all relevant times, Hylton was in remedial classes
and was described as “mentally slow.”

       Dela Cruz and Hylton reported some of these incidents to CO Keisling, who then
relayed their complaints to the Manager of Detention, James McCoy, in a memorandum
dated April 9, 1993. Joint Appendix (J.A.) at 1107. CO Keisling wrote the following
postscript in the memorandum: “I do think there might be something to this.” Id. Also
on April 9, 1993, Pat Byler, the GED teacher at the jail, sent a memorandum to Jon
Barth, Administrative Assistant to the Manager of Detention, advising him of Dela
Cruz’s allegations. Id. After receiving Byler’s memorandum of April 9, 1993, Barth
conducted an investigation of CO Toomer. He spoke to inmates Dela Cruz and Hylton
and had CO Toomer take a polygraph test. On May 11, 1993, based on his
investigation, Barth recommended to the Director of the JCDC, Charles Megerman,
that CO Toomer be terminated. Barth was concerned about what CO Toomer would
do to prisoners and believed that CO Toomer could not be trusted. Barth wrote: “This
investigation has shown that CO Toomer has not been truthful with us. Something did
occur between CO Toomer and inmate Hylton. . . . Therefore the Department has no
alternative but termination of this employee.” Id. at 1111.

     Despite Barth’s recommendation, no disciplinary action was taken against CO
Toomer. Instead, Megerman sent CO Toomer a memorandum stating that he
(Megerman) expected exemplary behavior of him. Furthermore, McCoy, Barth, and
Terri O’Neill, one of CO Toomer’s direct supervisors, all testified that no one asked
or directed them to keep a close watch on CO Toomer following Megerman’s decision




                                          -4-
not to terminate him.4 CO Toomer remained stationed on the same floor where Hylton
and other female inmates were housed.

       On July 22, 1993, Byler sent McCoy a second memorandum regarding CO
Toomer’s misconduct, this time stating that Hylton had reported that she and CO
Toomer were having sexual intercourse and oral sex and that she consented to such
activity. Several days later, Byler received a memorandum from Jon Morefield,
“investigative specialist” for the JCDC, in response to Byler’s second memorandum.
Morefield’s memorandum stated in pertinent part: “Concerning remarks made to you
by inmate Hylton on 07-21-93, the allegations have been investigated and the case is
now closed.” Id. at 1109. According to the County, Morefield mistakenly assumed that
Byler’s memorandum pertained to Hylton’s first set of allegations and failed to
recognize that these were, in fact, new allegations. Morefield’s memorandum to Byler
was the only document generated from Byler’s second memorandum. Neither McCoy,
Morefield, nor anyone else at the jail interviewed Byler about what Hylton had told him.
Morefield later testified that he never conducted an investigation of these allegations.
Megerman testified that knew of the second set of allegations and expected the incident
to be investigated. However, he did not follow up with any of his subordinates to verify
that an investigation took place; nor did he talk to CO Toomer about the allegations.

      On the night of August 29, 1993, Ware reported to Terri O’Neill, the acting
Corrections Supervisor (CS), that she had been raped in her cell by CO Toomer. Upon



      4
        Megerman testified that he and McCoy discussed the need to pay closer
attention to CO Toomer, but no one was assigned this task or made aware of this
concern. Shift Administrator (SA) Jackie Robinson testified that his usual practice in
such circumstances would be to tell CO Toomer’s immediate supervisor, Randy
Howard, to pay closer attention to CO Toomer. Joint Appendix at 703-08. However,
the County offered no proof that SA Robinson had such a discussion with Howard or
that any increased supervision was in fact prescribed for CO Toomer.

                                          -5-
receiving Ware’s complaint, CS O’Neill reported the incident to her supervisor, Norman
Dennison, who was the acting Shift Administrator (SA). SA Dennison responded
immediately to CS O’Neill’s report and went to speak to Ware directly. Pursuant to
JCDC policy, Ware’s cell was sealed, and the Jackson County Sheriff’s Department
was called and advised of Ware’s allegation. Ware was then taken to the JCDC
medical clinic and later transported to Truman Medical Center where vaginal swabs
were taken from her. A forensic chemist for the Regional Crime Lab tested the swabs
and detected the presence of seminal fluid. At trial, the jury found that CO Toomer had
raped Ware on the night of August 29, 1993.

Other Officers’ Sexual Misconduct and the County’s Response

       Inmate Jean Stone testified that she was sexually assaulted by JCDC guards on
several occasions. The assaults began soon after her arrest and arrival at the medical
housing unit of the JCDC in or around March 1990. While being transported in the
infirmary, CO Johnson touched her breast. Later, she had sexual intercourse with CO
Johnson and, on a separate occasion, she had oral sex with CO Michael Williams. On
May 18, 1990, CO Williams came into her cell in the medical housing unit and had
sexual intercourse with her, and then let an inmate, Donald Noble, into the cell to have
sex with her. CO Williams then reentered the cell after Noble and had sex with Stone
again. Stone reported the May 18 incident to a nursing student and also spoke to
several other JCDC personnel about it. Soon thereafter, Stone was taken to Truman
Medical Center. Stone’s medical examination indicated the presence of hairs and
seminal fluid that were racially consistent with those of inmate Noble and CO
Williams.5 Also, Noble’s cup was later found in Stone’s cell. Both inmates Stone and
Noble were in locked cells to which only the JCDC guards had keys. CO Williams was
suspended pending the outcome of the County’s investigation of the May 18


      5
       The fluid and hair samples suggested that the perpetrators were black. Both
inmate Noble and CO Williams are black.

                                          -6-
incident. The County later determined that CO Williams had not had sexual contact
with inmate Stone, and thus, no disciplinary action was taken against him. Nor was any
disciplinary action taken against CO Johnson.

       Similar allegations were made by inmate Shalana Jackson in 1989 against CO
Jeffrey Burgett. Jackson alleged that Burgett had sexual intercourse with her. During
the investigation of this incident, CO Burgett gave conflicting statements about what
happened and was not forthcoming with information. A polygraph test of CO Burgett
revealed that he had not truthfully answered questions pertaining to his sexual conduct
toward Jackson. As a result, a three-day suspension was recommended. However, CO
Burgett was never disciplined for this incident. Instead, Megerman sent him a
memorandum stating in pertinent part: “You assured us that this will never happen
again, and I once more choose to believe you.” Id. at 372. Also, a note was placed in
CO Burgett’s personnel file that Megerman and Robinson would watch him closely.
There is no evidence that any additional supervision took place.

      On November 1, 1989, Captain Pierce forcibly stripsearched a resistant female
inmate. Megerman concluded that, because there were no exigent circumstances
precipitating the search, the inmate should have been searched by a female guard
pursuant to JCDC policy. After an investigation of this incident, Megerman told
Pierce: “Knowing you as well as I do, I feel this won’t happen again.” Id. at 385.
Megerman also recommended that Pierce, who had served at the JCDC for twenty
years, be permitted to retire in lieu of being fired over this “serious” incident.

       Some time prior to August 1993, CO Tyronne Bomar stood outside a library door
while another officer, Stanley Brooks, had sex with a female inmate. During an
interview with his shift manager, CO Bomar stated that other officers had engaged in
similar sexual misconduct. An investigation revealed that CO Brooks had, in fact, had
inappropriate sexual contact with an inmate. CO Brooks was subsequently terminated.
The investigation further revealed that CO Bomar did not report the incident as required

                                           -7-
by JCDC policies and procedures. CO Bomar remained stationed at the jail but was
suspended for failing to report the incident more quickly.

       In 1988 a disciplinary officer investigated CO Al Hooten’s relationship with
inmate Christie White and concluded that CO Hooten had had sex with White. In 1989
it was reported that CO Hooten gave White fifty dollars to perform a sex act. The
investigator concluded that White was more involved with CO Hooten than she
admitted. In July 1990 McCoy advised Megerman that he (McCoy) had written a letter
to Hooten informing Hooten of their concerns and reprimanding Hooten for going to the
seventh floor to “check on” White. Barth later reviewed the file on Hooten and
concluded that no other action had been taken against him. Subsequently, another guard
reported seeing CO Hooten kissing a female inmate in a closed office. CO Hooten was
never disciplined.

      Another investigation determined that CO Robert Klimt had performed pat-down
searches of females inmates in violation of JCDC policy. Captain Barth witnessed this
misconduct and failed to report it. The investigator of this incident recommended that
Barth be suspended for one day. However, neither CO Klimt nor Barth were
disciplined; Megerman merely told CO Klimt that he should slow down because pat
down searches are unacceptable and he should “know better.”

      In August 1989 the Support Services Supervisor at the JCDC, Abayomi
Owoyemi, was accused of putting his hand down the front of a female inmate’s pants.
According to the County, an investigation of this incident revealed no evidence to
support the allegation, so no disciplinary action was taken.

       Barth testified that he could not recall any instance where there had been
increased supervision of an officer accused or suspected of sexual misconduct. Barth
also testified that he could not recall any instance in which a guard was assigned to a
different floor following a complaint. Finally, Barth testified that he could think of no

                                          -8-
incident in which the report of an inmate was treated as substantial evidence of officer
misconduct. Likewise, McCoy testified that he was unaware of any incident in which
the word of an inmate was credited over that of a guard.

JCDC Policy Statements and Hierarchy of Authority

       The JCDC is a department created by Executive Order of the County Executive,
and is subject to his or her control. The chain of command for JCDC staff begins with
the Corrections Officer (e.g., CO Toomer), who is supervised by the Corrections
Supervisor (e.g., Terri O’Neill), who reports to the Shift Administrator (e.g., Jackie
Robinson), who reports to the Manager of Detention (e.g., James McCoy), who is
supervised by the Department Director (in this case, Charles Megerman), who is, in
turn, supervised by the Manager of Administration, and ultimately by the Jackson
County Executive.6 Both the Manager of Administration and the County Executive have
the right to overrule any decision made by the Department Director and the authority
to request that an employee be subject to additional supervision. Megerman’s personnel
decisions are reviewable by the Jackson County Merit System Commission and are
subject to the Jackson County Merit System Commission Ordinance. Id. at 1148.

     At all relevant times, the JCDC Policy Statement setting forth general rules of
conduct, major rule violations, and disciplinary sanctions was issued by the authority
of Megerman. The JCDC Policy and Procedures Manual expressly provides that the
JCDC is accountable to County officials, and that the internal policies are subject to
review and change by the County Executive. The Policy Statement provides in part:




      6
      William Waris and Marsha Murphy held the position of County Executive from
1988-1990 and 1990-1993, respectively.

                                          -9-
      When an employee violates a rule of conduct, the supervisor of that
      employee must address the infraction. This includes bringing the rule
      infraction to the attention of the employee with a discussion of how that
      rule was actually violated. The supervisor must also determine whether
      or not to recommend a disciplinary sanction against the employee.
      Administrative and management level staff will review disciplinary
      sanctions and decide on the final review of that sanction.

             ....

      All discipline is administered with the understanding that the Director may
      choose alternative sanctions not mentioned in the suggested range as listed
      in this policy. This includes reducing or increasing the sanction imposed.


Id. at 1112, 1121 (emphasis added).

       The Policy Statement also expressly prohibits sexual contact between inmates
and staff; indeed, “becoming involved socially and/or romantically with inmates or ex-
inmates who have been in custody within the last five years, or their families,” carries
a sanction of suspension or termination. Id. at 1117.

       As Department Director, Megerman was responsible for the daily operation of
the jail and for establishing and revising written policies. Megerman testified that he
“assumes responsibility for whatever happens in jail.” Id. at 478. None of the
documents produced by the County indicates that the County Legislature, County
Executive, Manager of Administration, or any other agency played a role in disciplining
any JCDC employees or setting any of the policies that were introduced into evidence.
Rather, all the policy statements produced by the County refer to Megerman as the
“authority” responsible for promulgating the document. Moreover, none of the relevant
documents in the record concerning the investigations of sexual misconduct referred




                                         -10-
to in this case or the resulting disciplinary actions was sent or refers to any other county
agency or department.

       Barth testified that Megerman had the authority to reassign officers, including CO
Toomer, to different locations or to require that they have additional supervision.
McCoy testified that the final decision as to CO Toomer’s discipline rested with
Megerman. By the same token, however, Megerman testified that, in the past, he has
been ordered by his supervisors to reinstate or promote particular employees. He
further testified that he has been overruled on policy decisions and ordered to change
performance evaluations. Also, in 1990 the Manager of Administration instructed
Megerman that he could not send memoranda to anyone without first having such
memoranda reviewed and approved.

                                       Discussion

      A plaintiff may establish municipal liability under § 1983 by proving that his or
her constitutional rights were violated by an “action pursuant to official municipal
policy” or misconduct so pervasive among non-policymaking employees of the
municipality “as to constitute a ‘custom or usage’ with the force of law.” Monell v.
Department of Soc. Serv., 436 U.S. 658, 691 (1978) (Monell) (internal quotation
omitted); see also McGautha v. Jackson County, 36 F.3d 53, 55-57 (8th Cir. 1994)
(McGautha); Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990) (Jane
Doe A). “Official policy involves ‘a deliberate choice to follow a course of action ***
made from among various alternatives’ by an official who [is determined by state law
to have] the final authority to establish governmental policy.” Jane Doe A, 901 F.2d at
645. Alternatively, “custom or usage” is demonstrated by:

       1) The existence of a continuing, widespread, persistent pattern of
       unconstitutional misconduct by the governmental entity’s employees;



                                           -11-
      2) Deliberate indifference to or tacit authorization of such conduct by the
      governmental entity’s policymaking officials after notice to the officials of
      that misconduct; and
      3) Th[e] plaintiff[’s] injur[y] by acts pursuant to the governmental entity’s
      custom, i.e., [proof] that the custom was the moving force behind the
      constitutional violation.

Id. at 646 (citing Harris v. City of Pagedale, 821 F.2d 499, 504-07 (8th Cir. 1987)
(Harris)).

       At trial, Ware argued that the County had a custom of deliberate indifference to
sexual misconduct by JCDC staff, which caused her injury in violation of § 1983. The
County argues that the district court erred in denying its motion for judgment as a matter
of law because the evidence at trial was insufficient to establish a § 1983 claim.
Whether there is sufficient evidence to support a jury verdict is a legal question which
we review de novo using the same standards as the district court. “The law places a
high standard on overturning a jury verdict.” Hathaway v. Runyon, 132 F.3d 1214,
1220 (8th Cir. 1997) (Hathaway). Indeed, to prevail on appeal, the County has the
difficult task of demonstrating that the evidence “points one way and is ‘susceptible of
no reasonable inference sustaining the position of’” Ware when viewed in the light most
favorable to the verdict. Keenan v. Computer Assoc. Int’l, Inc., 13 F.3d 1266, 1269 (8th
Cir. 1994) (quoting White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992)). “Judgment as
a matter of law is proper ‘[o]nly when there is a complete absence of probative facts to
support the conclusion reached’ so that no reasonable juror could have found for the
nonmoving party.” Hathaway, 132 F.3d at 1220 (internal quotations omitted).

      The County also challenges the district court’s instruction to the jury on
municipal liability7 on the ground that Megerman was not a final policymaker such that



      7
       See infra note 9.

                                          -12-
liability can be imputed to the County from his conduct. We address each of these
arguments in turn.

Continuing, widespread, persistent pattern of unconstitutional conduct

       The County contends that the evidence at trial was insufficient to prove that a
continuing, widespread, and persistent pattern of unconstitutional conduct existed at the
JCDC. First, the County asserts that Ware introduced only a “handful” of prior
complaints of sexual misconduct. According to the County, this “handful” is
probatively insignificant because approximately 8,000 inmates are processed through
the JCDC annually. In addition, the County contends that a meaningful portion of the
complaints involves consensual or constitutional conduct that violates internal JCDC
policies but has no constitutional implications, citing Freitas v. Ault, 109 F.3d 1335,
1339 (8th Cir. 1997) (Freitas) (holding that welcome and consensual sexual contact
between inmates and prison personnel does not violate the Eighth Amendment), and
Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1990) (Timm) (holding that “minimal
intrusions on an inmate’s privacy,” such as the surveillance of a showering inmate, may
be outweighed by penological and safety concerns).

      Third, the County contends that Ware failed to support most of the complaints
of sexual misconduct with competent evidence, and that the complaints that were
supported with competent evidence (e.g., the Stone and Hylton complaints) were
promptly and thoroughly investigated. Although the County concedes that Hylton’s
second set of allegations was not investigated, it argues that its failure to investigate in
this instance constitutes negligence, at most, and thus is not actionable under § 1983.
Fourth, the County contends that even if there were a pattern of indifference toward the
sexual misconduct of JCDC staff, the pattern was not continuing. Specifically, the
County notes that there is a gap of three years between the complaints of sexual
misconduct involving CO Toomer in 1993 and those involving other officers in or
around 1988-1989. Finally, the County relies on JCDC policies expressly forbidding

                                           -13-
sexual contact between staff and inmates as evidence that it does not condone, facilitate,
or approve of any sexual contact between inmates and JCDC staff much less the sexual
abuse of inmates by JCDC staff.

       We leave open the question of whether, in determining that there was a pattern
of unconstitutional conduct at the JCDC, the district court relied on conduct that this
court has specifically held not to be unconstitutional in Freitas and Timm.8 Instead,
viewing the remaining evidence in the light most favorable to the jury verdict, we hold
that the jury verdict is supported by substantial evidence of a continuing, widespread,
and persistent pattern of unconstitutional conduct.

       The jury was entitled to infer that a pattern of unconstitutional conduct existed
from the evidence of CO Toomer’s sexual misconduct, which spanned five months and
involved extortion, deception, and repeated sexual acts with an inmate of limited mental
capacity, culminating in the rape of Ware. The pattern is also evidenced by the Stone,
White, and Jackson incidents. That there was a gap of three years between CO
Toomer’s misconduct and that of other officers does not amount to a series of isolated
incidents so far apart in time that CO Toomer’s misconduct may be considered a single
act upon which custom or usage cannot be based. Cf. McGautha, 36 F.3d at 57
(“Liability for an unconstitutional custom or usage . . . cannot arise from a single act.”).

       8
         Some of the evidence of sexual misconduct introduced at trial involved an
officer dating an ex-inmate, a male officer patting down a female inmate, a male officer
spending time alone with a female inmate in closed quarters, male officers assisting in
the strip search of a violent female inmate, male trustees viewing female shower areas,
and allegedly consensual sex between inmates and prison personnel. While these acts
violate JCDC policy, they arguably are not of constitutional magnitude. See Newman
v. Holmes, 122 F.3d 650, 653 (8th Cir. 1997) (“[V]iolation of an internal prison
regulation does not by itself give rise to an Eighth Amendment claim.”) (citing Falls v.
Nesbitt, 966 F.2d 375, 379-80 (8th Cir. 1992) (rejecting argument that a prison official’s
violation of an internal regulation is tantamount to a violation of the Eighth
Amendment)).

                                           -14-
Nor does the number of mishandled complaints compared to the number of inmates
undermine our conclusion where the record is replete with evidence of repeated sexual
misconduct on the part of JCDC personnel. Moreover, the existence of written policies
of a defendant are of no moment in the face of evidence that such policies are neither
followed nor enforced. Cf. City of St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988)
(“Refusals to carry out stated policies could obviously help to show that a
municipality’s actual policies were different from the ones that had been announced.”).
Finally, we reject the County’s contention that the proof of CO Toomer’s misconduct
and other incidents was incompetent. The County failed to substantiate this argument
in its briefs or at oral argument and failed to assert that it objected to the admission of
such evidence.

       In light of the foregoing, we hold that the evidence of record was sufficient to
reveal a pattern of sexual misconduct by county personnel that is anathema to “‘the
evolving standards of decency that mark the progress of a maturing society,’” Rhodes
v. Chapman, 452 U.S. 337, 346 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101
(1958) (plurality opinion)), and, thus, is in violation of the Eighth Amendment.

      As a related issue, the County challenges the district court’s failure to include the
words “continuing,” “widespread,” and “persistent” in its instruction to the jury




                                           -15-
regarding the “pattern of unconstitutional conduct.”9 The County asserts that this
omission substantially affected its rights.

       In Parrish v. Luckie, we affirmed a similar instruction under the same challenge
of incompleteness on the ground that the “proffered language [i.e., ‘persistent,’
‘widespread,’ and ‘continuing’] merely lays out the common characteristics of the word
‘pattern’ and is, therefore, surplusage.” 963 F.2d 201, 206 (8th Cir. 1992) (Parrish)
(rejecting same argument). Accordingly, we find no error in the district court’s
omission of such language in the instant case.

Deliberate indifference to a substantial risk of harm

       The County contends that there is insufficient evidence to establish that it was
deliberately indifferent to a substantial risk of harm to Ware. Rather, the County


      9
       Jury Instruction No. 13 reads as follows:

            Your verdict must be for plaintiff and against defendant Jackson
      County, Missouri[,] if all the following elements have been proved by the
      preponderance of the evidence:

      First, there was a pattern of unconstitutional misconduct by John Toomer
      or other jail guards, and

      Second, Charles Megerman knew of these incidents of unconstitutional
      misconduct, and

      Third, Charles Megerman was deliberately indifferent or tacitly
      authorized the unconstitutional misconduct; and

      Fourth, as a direct result, the plaintiff was injured.

Joint Appendix at 1028.

                                          -16-
asserts, it is its custom and policy to investigate promptly and thoroughly a complaint
of sexual assault and to enforce its internal policies prohibiting sexual misconduct
toward inmates.

       In Farmer v. Brennan, 511 U.S. 825, 837 (1994) (Farmer), the Supreme Court
elucidated the concept of “deliberate indifference” under the Eighth Amendment. The
Court held that an official is “deliberately indifferent” in violation of the Eighth
Amendment if “the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he [or she] must also draw the
inference.” Id. “[A] factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.” Id. at 842. Moreover, “an Eighth
Amendment claimant need not show that a prison official acted or failed to act believing
that harm actually would befall an inmate; it is enough that the official acted or failed
to act despite his [or her] knowledge of a substantial risk of serious harm.” Id. The
Court further explained:

      [I]f an Eighth Amendment plaintiff presents evidence showing that a
      substantial risk of inmate attacks was longstanding, pervasive, well-
      documented, or expressly noted by prison officials in the past, and the
      circumstances suggest that the defendant-official being sued had been
      exposed to information concerning the risk and thus “must have known”
      about it, then such evidence could be sufficient to find that the defendant-
      official had actual knowledge of the risk.


Id. at 842-43 (internal quotations omitted).

       Eighth Circuit caselaw predating the Farmer opinion substantiates this view. See
Harris, 821 F.2d at 506 (finding deliberate indifference where city officials were notified
on “repeated occasions” of employee misconduct but “repeatedly failed to take


                                           -17-
any remedial action”). More recently, we have applied this concept and found evidence
of deliberate indifference in a variety of contexts and from varying degrees of proof.
See, e.g., Sanchez v. Taggart, 1998 WL 257364, at *2 (8th Cir. May 22, 1998) (holding
that evidence and inferences that official knew of inmate’s restrictive medical condition,
that inmate had confirmed physical limitations, and that official failed to inquire further
are sufficient to survive summary judgment on finding of deliberate indifference);
Newman v. Holmes, 122 F.3d 650, 652 (8th Cir. 1997) (upholding jury’s finding that
officer was deliberately indifferent to a known risk of harm in opening a dangerous
inmate’s cell door without a guard escort); Andrews v. Fowler, 98 F.3d 1069, 1078 (8th
Cir. 1996) (holding that Chief of Police’s awareness of two complaints of misconduct
against an officer and Chief’s statement that he “wouldn’t doubt” that officer
committed an offense were sufficient to prove Chief was deliberately indifferent to
victim’s rights).

       In our view, the County’s deliberate indifference is evidenced by its failure to
discipline adequately CO Toomer and other officers who engaged in sexual misconduct
when there was ample evidence that female inmates were placed at a substantial risk of
serious harm. Further, there is sufficient evidence that the County had notice because
Megerman, a final policymaker, see infra, knew of CO Toomer’s and other officers’
sexual misconduct.

      Megerman knew of allegations that CO Toomer demanded that inmate Hylton
expose herself to him on two separate occasions, allowed a male inmate to look in on
inmates Hylton and Dela Cruz while they were using the toilet, propositioned inmate
Hylton for oral sex, and made sexual gestures to her with his tongue. Megerman also
knew that CO Toomer’s polygraph test regarding these allegations indicated deception
and, more important, that Barth, who conducted the investigation of these allegations,
found the evidence against CO Toomer credible enough to recommend that CO Toomer
be terminated. Finally, Megerman knew that a second set of allegations of sexual
misconduct were made against CO Toomer that was never investigated.

                                           -18-
        As for Megerman’s subjective awareness of an obvious risk of harm, Megerman
testified that he believed that an officer’s past misconduct can be an indicator of future
misconduct and could indicate that prisoners were at risk. J.A. at 632-33. Megerman
also testified that he was concerned that CO Toomer remained on duty at the jail, and
that it would be appropriate to supervise him more closely. Id. at 486. Moreover,
Megerman knew of and expressly disregarded Barth’s recommendation that CO Toomer
be terminated. Hence, this case is easily distinguishable from situations in which the
defendant had a reasonable and genuine disbelief that a constitutional wrong would not
occur. Compare Jane Doe A, 901 F.2d at 646-47 (holding that officials’ knowledge
of school district bus driver’s questionable sexual conduct toward adults did not prove
deliberate indifference to the rights of the handicapped children he later abused).
Moreover, Farmer expressly forbids the inference that Megerman could not have known
that CO Toomer presented an obvious, substantial risk of serious harm to Ware because
there was no evidence of prior offenses toward Ware by CO Toomer: “[A] prison
official [may not] escape liability . . . by showing that, while he [or she] was aware of
an obvious, substantial risk to inmate safety, he [or she] did not know that the
complainant was especially likely to be assaulted by the specific [individual] who
eventually committed the assault.” 511 U.S. at 843.

       Indeed, despite Megerman’s actual knowledge of CO Toomer’s history of sexual
misconduct involving female inmates, Megerman did not discipline CO Toomer or order
any precautionary measures to protect female inmates from being further victimized by
him. CS Randy Howard, CO Toomer’s immediate supervisor, and CO O’Neill, the
acting CS on the date of the initial misconduct, were informed of the first set of
allegations against CO Toomer. However, there is no evidence that they were
instructed to increase their supervision of CO Toomer. Moreover, Megerman failed to
follow up with or inform CO Toomer’s supervising officers of the second set of sexual
misconduct allegations against CO Toomer. The foregoing facts, by themselves,
support the jury’s finding of deliberate indifference on the part of the County.
Moreover, there is additional evidence of sexual misconduct among JCDC personnel

                                          -19-
toward inmates, such as the Stone, White, and Jackson incidents, which evince an
ongoing disregard of a pattern of sexual misconduct at the JCDC.

       The County cites several instances in which complaints of sexual misconduct by
JCDC employees were promptly and thoroughly investigated and the culpable
employees were sanctioned. However, this evidence is not quantitatively sufficient to
counter the proven instances of wilful disregard for which the jury found the County
liable. Moreover, as stated above, neither the County’s written policies prohibiting
unconstitutional misconduct nor evidence of its employee training can insulate it from
§ 1983 liability where there is evidence of a pattern of misconduct.

       Finally, the law permits officials charged with the knowledge of an obvious risk
to prove that they were unaware of the risk or that “they responded reasonably to the
risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. The
County has not met either burden; accordingly, we hold that there is sufficient evidence,
as a matter of law, to support the jury’s finding that the County was deliberately
indifferent to an obvious, substantial risk of serious harm in violation of the Eighth
Amendment.

Causal link between unlawful conduct and Ware’s injury

      In addition to establishing that the County was deliberately indifferent, Ware was
required to establish causation; that is, Ware had to prove that the County’s custom of
laxness or inaction toward allegations of sexual misconduct was the “moving force”
behind her injury. Board of County Comm’rs v. Brown, 117 S. Ct. 1382, 1388 (1997)
(Brown) (“The plaintiff must . . . demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.”); Monell, 436 U.S. at
694 (holding that official policy must be “the moving force of the constitutional
violation” in order to establish the liability of a government body under § 1983); Tilson
v. Forrest City Police Dep’t., 28 F.3d 802, 807 (8th Cir. 1994) (Tilson) (“[A]

                                          -20-
government custom of laxness or inaction must be the moving force behind the
constitutional violation.”). The County contends that the evidence is insufficient to
support such a finding. The County argues that its failure to discharge or discipline CO
Toomer as Barth recommended in May 1993 was not the “moving force” behind Ware’s
injury because the County’s “inaction” was not “highly likely to inflict the particular
injury suffered by [Ware].” Brown, 117 S. Ct. at 1392. The County also maintains
that the connection between Megerman’s knowledge and the specific constitutional
violation is tenuous. Furthermore, the County reminds this court that “[w]here a claim
of municipal liability rests on a single decision, not itself representing a violation of
federal law and not directing such a violation, the danger that a municipality will be held
liable without fault is high.” Id. at 1390.

       Recognizing this danger and after careful review, we conclude that the evidence
is sufficient to support the jury’s finding that the County’s failure to discipline CO
Toomer (and other officers) was the moving force behind Ware’s injury. In Harris v.
City of Pagedale, we held that, where it becomes clear that an employee or group of
employees needs close and continuing supervision and “the municipality fails to provide
such supervision, the inevitable result is a continuation of the misconduct.” 821 F.2d
499, 508 (8th Cir. 1987) (internal quotation omitted). The evidence in the instant case
clearly demonstrated the need for close and continuing supervision of JCDC guards.
The number of reported acts of sexual misconduct committed by CO Toomer alone,
before he raped Ware, was sufficient to compel increased supervision or other, more
stringent disciplinary action. Megerman declined, however, to exercise his authority to
discipline CO Toomer, subject him to closer supervision, reassign him to a floor that did
not house female inmates, or implement other precautionary measures. It is axiomatic
that unpunished crimes tend to breed more criminal behavior. Thus, we hold that the
evidence is sufficient to show that Megerman’s failure to address sexual misconduct by
JCDC personnel was the moving force behind the violation of Ware’s constitutional
rights. Accordingly, the evidence was sufficient, as a matter of law, to support the jury
finding that the “inevitable result” of Megerman’s

                                           -21-
failure to address meaningfully CO Toomer’s record of sexual assault, extortion, and
deception was the continuation of that sexual misconduct, including the rape of Ware.

Final policymaker for the County

       It is well-settled that the doctrine of respondeat superior does not apply under §
1983, Monell, 436 U.S. at 691, and that “[m]unicipal liability attaches only where the
decisionmaker possesses final authority to establish municipal policy with respect to the
action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (Pembaur).
“[T]he authority to make municipal policy is necessarily the authority to make final
policy.” Praprotnik, 485 U.S. at 127. As noted above, a plaintiff can establish
municipal liability by proving injury from the execution of an “official policy” or from
actions that are so pervasive that they become “custom or usage” with the force of law.
“This [latter] standard serves to prevent municipal evasion of liability through improper
delegation of policy responsibility or acquiescence in pervasive constitutional violations
by county employees.” McGautha, 36 F.3d at 56-57 (citing Praprotnik, 485 U.S.
126-27).

       In the instant case, Megerman promulgated written policy, had the ability to
impose and modify disciplinary actions, and was responsible for the operation of the jail
and the implementation of the policies that he put in force. From these facts, the district
court determined that Megerman is a final policymaker for purposes of § 1983 liability.
Slip op. at 18-23. Whether Megerman is a final policymaker is a question of law. See
Pembaur, 475 U.S. at 483; see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989) (Jett) (“Reviewing the relevant legal materials, including state and local positive
law, as well as ‘custom or usage having the force of law’, the trial judge must identify
those officials . . .who speak with final policymaking authority . . . concerning the action
alleged to have caused the particular constitutional . . . violation at issue.”).
Accordingly, we review the district court’s determination de novo.


                                           -22-
             When an official’s discretionary decisions are constrained by
      policies not of that official’s making, those policies, rather than the
      subordinate’s departure from them, are the act of the municipality.
      Similarly, when a subordinate’s decision is subject to review by the
      municipality’s authorized policymakers, they have retained the authority
      to measure the official’s conduct for conformance with their policies.

 Praprotnik, 485 U.S. at 127 (emphasis in original). Stated differently, where the right
to review a decision is retained, there has been an incomplete delegation of authority,
and municipal liability may not attach; on the other hand, an absolute delegation of
authority may implicate the municipality. Williams v. Butler, 863 F.2d 1398, 1402 (8th
Cir. 1988) (noting “fine line” between delegating final policymaking authority and
entrusting discretionary authority to official). Thus, the key question before this court
is whether the County delegated to Megerman its power to establish final employment
policy with respect to the discipline of officers. If so, then “[Megerman]’s decisions
would represent county policy and could give rise to municipal liability.” Pembaur, 475
U.S. at 483 n.12. Upon careful review of the record and the parties’ arguments on
appeal, we affirm the district court’s holding.

       The County argues that, because Megerman’s decisions were subject to review
and at times were reviewed by both the County Executive and the Director of
Administration, he is not a final policymaker. The County asserts that Megerman
merely possessed discretionary authority that was constrained by policies of the County.
As evidence of Megerman’s limited authority, the County cites the following examples:
In 1990 the Manager of Administration reviewed every memorandum written by
Megerman before he was allowed to distribute it. The County Mission Statement
provides that the JCDC “will be accountable for its operation to County officials.” J.A.
at 922. Likewise, JCDC “Personnel Policies”state that the “Personnel Department,
County Executive’s Office, and the County Merit System Commission conducts,
reviews, and initiates change on an as needed basis.” Id. at 1148. It further states that



                                          -23-
      [t]he Department’s personnel policies are governed by the practices and
      policies of Jackson County, Missouri. . . . It is understood that the
      personnel policies . . . are subject to the provisions of the Jackson County
      Merit System ordinance. If any of the provisions . . . conflict with the
      Merit System Rules, the provisions of the Jackson County Merit System
      shall prevail.

Id. at 924.

        The County also relies on this court’s holding in McGautha for support. In
McGautha, we upheld a jury instruction that Jackson County policy-making officials
were the Jackson County Legislature and the Jackson County Executive for purposes
of establishing municipal liability for injury arising from an official policy. 36 F.3d at
55-56. We further opined that supervisory employees in the county collections
department were not final policymakers for this purpose because “[t]hey merely
exercised their discretion in carrying out officially pronounced county policy[;] . . .
[t]heir actions were reviewable by the county executive and the county’s Merit System
Commission, and were also subject to written county policy.” Id. at 56. In addition,
we expressly recognized the distinction in proving municipal liability through “official
policy” or “custom or usage” and its bearing on determining who is a final policymaker.
Id. at 57 (“The jury could have found a discriminatory custom sufficient to impose
liability by considering the actions of the individuals that the court properly removed
from the policy making ambit.”). In our separate analysis on “custom or usage,” we
affirmed the district court on the ground that a single act cannot create liability for
unconstitutional custom or usage. We reaffirmed, however, the principle that conduct
of non-policymaking municipal employees can be imputed to the county where the
county’s policymaking officials are deliberately indifferent to or tacitly authorize such
conduct after receiving notice thereof. See id. at 55, 57 (citing Jane Doe A, 901 F.2d
at 646).




                                          -24-
        In the instant case, we hold that the district court correctly identified Megerman
as a final policymaker on JCDC personnel matters on the following bases: Megerman’s
position as director of the JCDC which has approximately 262 employees; his authority
to promulgate JCDC policy, which sets forth, among other things, the rules of conduct
for JCDC personnel; his authority to implement such policy; his exclusive handling of
the disciplinary actions in this case; and the absence of a proven mechanism through
which the Jackson County Executive and the Merit System Committee can review his
decisions not to discipline officers or fully investigate allegations of misconduct. See
Harris, 821 F.2d at 507 (Chief of Police, among others, had final authority to exonerate
police officers of disciplinary charges or not to bring any disciplinary charges against
them at all and thus has final authority to establish a municipal custom of deliberate
indifference to a known pattern of unconstitutional police misconduct); see also
Angarita v. St. Louis County, 981 F.2d 1537 (8th Cir. 1992) (holding that police chief
who was highest ranking police official in St. Louis County, responsible for the entire
department, and responsible for drafting and approving many of the department’s
general orders had final policymaking authority in St. Louis County). We believe that
this conclusion is further supported by the JCDC Policy Statement which reads in part:
“[A]ll discipline is administered with the understanding that the Director may choose
alternative sanctions not mentioned in the suggested range as listed in this policy.” J.A.
at 1121. Further, the Supreme Court has recognized that final policymaking authority
need not be all encompassing. See Jett, 491 U.S. at 737 (noting that official must have
final policymaking authority on the “particular issue” that allegedly caused the
constitutional violation at issue). Thus, as a matter of law, the evidence supports a
finding that Megerman is a final policymaker with respect to the customs of failing to
discipline adequately officers engaged in sexual misconduct and failing to investigate
allegations of such misconduct. Moreover, Megerman’s status as a final decisionmaker
regarding CO Toomer is especially apparent because CO Toomer was a probationary
employee who could not seek formal review of adverse employment decisions.




                                          -25-
       Accordingly, we hold that Megerman was a final policymaker for purposes of
determining § 1983 municipal liability with respect to the decisions at issue in the
instant case and that the district court did not err in so instructing the jury.

                                     Conclusion

      For the foregoing reasons, we affirm the order of the district court.



      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -26-
