Opinion
Civil Action No. 3:98-CV-2142-P.
March 10, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are:
(1) Motion to Dismiss the Individual Capacity Claims Against Judge Lofland Based Upon Absolute Legislative Immunity filed January 12, 1999;
(2) Defendant William Lofland's Motion for Summary Judgment and Brief in Support filed January 19, 1999;
(3) Plaintiff Brian Pugh's Response to Defendant William Lofland's Motion to Dismiss and Brief in Support filed August 10, 1999;
(4) Plaintiff Brian Pugh's Response to Defendant William Lofland's Motion for Summary Judgment and Brief in Support filed August 10, 1999;
(5) Judge Bill Lofland's Joint Reply to Plaintiff's Responses to Judge Lofland's Motion to Dismiss and Motion for Summary Judgment and Brief in Support filed October 12, 1999;
(6) Plaintiff's Supplemental Brief in Support of Plaintiff's Response to Judge Lofland's Motion for Summary Judgement filed October 12, 1999;
(7) Judge Lofland's Supplemental Reply to Plaintiff's Supplemental Brief in Support of Plaintiff's Response to Judge Lofland's Motion for Summary Judgment and Brief in Support filed October 27, 1999;
(8) Defendants Bill Lofland's and Jacques Kiere's Objections to Plaintiff's Summary Judgment Response Evidence filed October 12, 1999; and
(9) Plaintiff's Response to Defendants Bill Lofland's and Jacques Kiere's Objections to Plaintiff's Summary Judgment Response Evidence filed October 29, 1999.
After reviewing all of the motions, evidence, and relevant law, the Court hereby DENIES Defendant Lofland's Motion to Dismiss based upon legislative immunity and GRANTS Defendant Lofland's Motion for Summary Judgment based upon qualified immunity.
PROCEDURAL HISTORY
On September 10, 1998, Brian Pugh ("Pugh" or "Plaintiff") filed this action. On January 12, 1999, Judge William Lofland ("Lofland") filed a motion to dismiss the individual capacity claims based upon absolute legislative immunity, and on January 19, 1999, filed a motion for summary judgment based upon qualified immunity. On April 29, 1999, this Court granted Pugh a limited amount of discovery to respond to the motion to dismiss and converted the motion to dismiss into one for summary judgment. Both of the summary judgment motions are ripe for consideration.
The Plaintiff objects to the entirety of what is now Lofland's motion for summary judgment based upon qualified immunity. Plaintiff argues that the motion violates Local Rule 56.2(b), which requires leave of court to file more than one summary judgment motion. The court overrules Plaintiff's objection. Both of Lofland's motions were before the Court the time it converted the motion to dismiss into one for summary judgment and ordered discovery to be conducted on the issue of qualified immunity. Therefore, the Court implicitly granted Lofland leave to file the motion.
SUMMARY JUDGMENT STANDARD
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment.Anderson, 477 U.S. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex Corp., 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of the submitted documents to which the nonmoving party directs the Court. Id.
FACTS
Defendant Lofland made 42 objections to the evidence submitted by the Plaintiff in his Appendix to Briefs in Support of Plaintiff Brian Pugh's Responses to Defendant William Lofland's Motions to Dismiss and for Summary Judgment (the "Pugh/L Appendix") and Appendix to Briefs in Support of Plaintiff Brian Pugh's Responses to Defendant Jacques Kiere's Motions to Dismiss and For Summary Judgment (the "Pugh/KJ Appendix"). The Court notes that the objections to this evidence have been made collectively by Defendants Lofland and Kiere. Therefore, the Court will rule on the objections as made by both Defendants.
The Plaintiff cites evidence in both Appendices in his Responses to Lofland's current motions.
Accordingly, the Court sustains the Defendants' objections to pages 273-75, 296, 320-21, 353-54, 378-79, and 384 in so far as these pages contain questions requiring legal conclusions from the deponents. The Defendants object to the voluntary statement and affidavit of John Sheehan, in which Sheehan alleges that Gaspard and Valdez told him in great detail about their assault on Pugh. Pugh/K Appendix 59-70. Specifically, the Defendants argue that Sheehan's relation of statements allegedly made by Gaspard and Valdez about the assault are hearsay. The Plaintiff argues that the admissions of Gaspard and Valdez fall within Fed.R.Evid. 804(b)(3) as a statement against interest. The Plaintiff has not demonstrated that Gaspard and Valdez are unavailable witnesses. Therefore, this exception to the hearsay rule does not apply. The Court finds these statements are hearsay and sustains this objection.
The Defendant objects to a report by Sergeant Reagan on the basis that such report contains hearsay statements made by Pugh. Pugh/K Appendix 78-82. The Plaintiff argues that Pugh's statements are not hearsay; rather, they constitute hearsay exceptions as excited utterances and present sense impressions. Fed.R.Evid. 803(1)-(2). The Court notes that Pugh's assault occurred from May 31, 1998 until approximately 9:30 a.m. on June 2, 1998. According to the report, the statement was made by Pugh on June 3, 1998 at approximately 4:30 a.m. The Plaintiff did not provide any argument as to why the statements, made approximately 19 hours after Plaintiff's rescue from the cell should qualify as either excited utterances or a present sense impression. Therefore, the Court sustains objection 13, but only as to statements within the report made by the Plaintiff to Sergeant Reagan.
The Defendants object to the affidavit testimony of Ernest C. Weber. Pugh/K Appendix 385-91. The Court finds that the affidavit provides sufficient information for its conclusions and finds Weber qualified to testify to the reasonableness of the actions at the jail. As an expert, most of the Defendants' objections go to the weight of Weber's testimony rather than to its admissibility. However, the affidavit failed to establish his bases and qualifications for evaluating Lofland's actions as county judge. Therefore, the Court sustains Defendants' objections regarding Weber's testimony to the extent that it offers an opinion as to the duties and responsibilities of Judge Lofland or the reasonableness of Judge Lofland's actions.
The Defendants object to much of the Plaintiff's evidence as subsequent remedial measures that are inadmissible under Fed.R.Evid. 407. The Court sustains the Defendants' objection only in regard to the testimony of Sheriff Kiere about the July 27th contract to transfer inmates from the Rockwall County Jail. Pugh/L Appendix 78-79. All of the other evidence goes to the feasibility of remedying the overcapacity of the Rockwall County Jail through administrative procedures.
The Court rules that all other evidence objected to and not expressly ruled on above is admissible and relevant to the Defendants' summary judgment motions. Therefore, all of the Defendants' other objections are hereby overruled.
Considering the posture of this motion, the Court's rulings on the evidentiary objections, and taking the facts in the light most favorable to the Plaintiff, the Court finds the relevant facts as follows:
On April 28, 1998, the Plaintiff was arrested on charges of injury to a child and placed in the Rockwall County Jail. Kiere Aff., Exh. 1, Kiere App. at 2. On April 29, 1998, he was apparently assaulted by other inmates, treated for his injuries, and moved to another cell. Id. at 5. On April 30, 1998, Pugh was placed in "2 Cell" which was designated to hold two inmates. Id. By May 31, 1998, five inmates had been placed in the two-man cell. Jones Depo. at 41, Exh. 24, Pugh/KJ App. at 148. On the night of May 31, 1998, two of the inmates in Pugh's cell began physically and sexually assaulting Pugh. Statement of Brian Pugh dated June 2, 1999, Kiere App. at 70-74. The assault continued until the morning of June 2, 1998 when Pugh was able to draw the attention of Jailer Lewellyn. Incident Report dated June 2, 1998, Exh. 10, Pugh/KJ App. at 76.
The "Kiere Appendix" refers to the Appendix to Brief in Support of Motion for Summary Judgment of Defendant Jacques Kiere filed January 19, 1999.
At the time of the assault, Rockwall County Jail was in violation of the minimum standards set forth by the Texas Commission on Jail Standards. See Kiere Depo., Exh 8, Pugh/L App. at 50, 53-55; see also Exh. 16, 17, 19, 21, Pugh/KJ App. Specifically, the Plaintiff alleges that the Rockwall County Jail was overcrowded, understaffed, and in poor repair. At the time of the assault, Defendant Lofland was the County Judge of Rockwall County and the presiding officer of the Commissioners' Court. Lofland Aff., Lofland App. at 1. The Plaintiff alleges that in this capacity, Lofland received notice from Sheriff Kiere and the Texas Commission on Jail Standards that the Rockwall County Jail was overcrowded, understaffed, and in non-compliance with the Commission's minimum standards. See Kiere Depo., Exh 8, Pugh/L App. at 50, 53-55; see also Exh. 16, 17, 19, 21, Pugh/KJ App. According to Defendant Lofland, the "single most significant cause of overcrowding was a backlog of pretrial felons. The backlog of pre-trial felons was caused by a new district judge, with limited criminal experience, failing to move the criminal docket in a timely manner." Lofland Aff., Lofland App. at 4.
The "Lofland Appendix" refers to the Appendix to Brief in Support of Motion for Summary Judgment of Defendant Judge Bill Lofland filed January 19, 1999.
Judge Lofland is referring to Judge Sue Pirtle who became district judge for Rockwall County on January 1, 1997.
From 1996 to 1998, Sheriff Kiere requested that the Commissioners' Court authorize the hiring of new jailers and the transfer of inmates to other facilities and advised Lofland that the County would be exposed to liability if the requests were denied. Kiere Depo. at 54-74, Exh. 8, Pugh/L App. at 67-78. On April 27, 1998, the Commissioners' Court approved the hiring of six new jailers to be effective July 1, 1998. Kiere Depo. at 73, Exh. 8, Pugh/L App. at 77. Lofland also claims to have taken other measures to alleviate the overcrowding at the Rockwall County Jail. He states that he communicated with the District Attorney, the County Sheriffs, Rockwall County Commissioners and others to persuade them to take actions to reduce the jail population in the Rockwall County Jail. Lofland Aff., Lofland App. at 4. Judge Lofland also alleges to have taken the time to review jail lists of inmates to see why they were not moving through the system any quicker than they were. Lofland Depo. at 27, Exh. 2, Pugh/L App. at 12.
LEGISLATIVE IMMUNITY
Legislative immunity provides absolute protection from suit to government officials when they take legislative actions and perform legislative duties. Gravel v. United States, 408 U.S. 606, 625 (1972). Legislative immunity can apply to legislators at any level of government: federal, state, local and regional, including city and county actors. See Bogan v. Scott-Harris, 523 U.S. 44, 52-54 (1998) (making explicit that local legislators are entitled to absolute immunity); Hernandez v. City of Lafayette, 643 F.2d 1188, 1192 (5th Cir. 1981). The rationale behind granting absolute immunity to officials for legislative acts derives from the historical tradition of allowing legislators freedom to speak their minds in public debate without fear of judicial interference or exposure to personal liability. Bogan, 523 U.S. at 51-52. In the context of addressing local legislative action, the Supreme Court has noted that "any restriction on a legislator's freedom undermines the `public good' by interfering with the rights of the people to representation in the democratic process." Spallone v. United States, 493 U.S. 265, 279 (1990).
In deciding questions of absolute immunity under § 1983, courts consider the function the individual performs, not the title he holds. See Bogan, 523 U.S. at 55 (stating that individuals outside of the legislative branch are entitled to absolute immunity when performing legislative functions);Forrester v. White, 484 U.S. 219, 229 (1988); Anthony v. Baker, 955 F.2d 1395, 1398 (10th Cir. 1992). Likewise, not all actions taken by an official with legislative duties are protected. Rather, absolute immunity attaches to only those acts that are functionally legislative. Hughes v. Tarrant County, 948 F.2d 918, 920 (5th Cir. 1991). Although there is no absolute standard by which to distinguish between legislative and nonlegislative acts, courts have consistently recognized a distinction between the legislative act of establishing a policy, act, or law and the nonlegislative act of enforcing or administering that policy, act, or law. See Bogan, 523 U.S. at 51 (citing treatises for the proposition that the distinction between legislative and ministerial duties as dispositive of the right to absolute immunity); see also Hughes, 948 F.2d at 920; Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 135 (5th Cir. 1986); 52 Tex. Jur.3d Municipal Corporations § 481 (1999). The Fifth Circuit Court of Appeals has established a test for determining whether an act is legislative or administrative. See Hughes v. Tarrant County, 948 F.2d 918, 920 (5th Cir. 1991). This test provides a list of factors that indicates the nature of the act. An individual performing a legislative act maintains a degree of discretion in making policy or in enacting an overall plan based upon a generalized set of facts that affects the general public.Hughes, 948 F.2d at 921. On the other hand, an act falls within the administrative or ministerial duties of an official where it involves the application or enforcement of an existing policy based upon ad hoc decision making, considering specific facts and affecting specific, identified individuals. Id.
The nature of the act does not, however, depend upon the intent or motive of the official. Bogan, 523 U.S. at 54. Therefore, even if an act is motivated by animus towards a person or a particular group of people, it will remain protected by absolute immunity if it involves an integral step in the legislative process and contains substantive legislative policy. Id. Thus, the absolute immunity issue becomes whether Lofland was engaging in policy-making or the administrative application of existing policies. Minton, 803 F.2d at 135.
Therefore, the issues before the Court in Defendant Lofland's motion for summary judgment based on legislative immunity are 1) whether a presiding county judge is the type of government actor entitled to assert the defense of legislative immunity and 2) whether the acts complained of by Plaintiff constitute policy-making decisions or administrative decisions.
A. The Role of the County Commissioners' Court
The Texas Constitution requires every county to establish a commissioners' court that shall "exercise such powers and jurisdiction over all county business" as may be prescribed by the constitution or statutes. Tex. Const. art. V, § 18. The commissioners' court is comprised of the county judge and the county commissioners. Tex. Loc. Gov't Code Ann. § 81.001(a) (West 1999). The county judge serves as the presiding officer of the commissioners' court. Tex. Loc. Gov't Code Ann. § 81.001(b) (West 1999).
The commissioners' court is a subordinate and derivative branch of state government, and its primary function is the administration of county business. Avery v. Midland County, 406 S.W.2d 422, 426 (Tex. 1966); Jensen Constr. Co. v. Dallas County, 920 S.W.2d 761, 773 (Tex.Civ.App.-Dallas 1996, writ denied). The powers and duties of the commissioners' court include aspects of legislative, executive, administrative, and judicial functions. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); Jensen, 920 S.W.2d at 773; but see Avery, 406 S.W.2d at 426 (stating that "the legislative functions of the commissioners' court are negligible").
As the governing and administrative body of the county, the commissioners' court has the power to determine the county budget and make appropriations of funds. Rheuark v. Shaw, 628 F.2d 297, 391 n. 5 (5th Cir. 1980). In fact, absent a mandatory statutory duty imposed on the commissioners' court, the allocation of county funds is a discretionary act of the public officials who were elected to make those decisions. Weber v. City of Sachse, 591 S.W.2d 563, 566 (Tex.Civ.App.-Dallas 1979, writ dismissed). On the other hand, the commissioners' court has no discretion to act in contradiction to a mandatory statutory duty that has been imposed upon it. For example, in Rheuark, the Fifth Circuit held that the commissioners were statutorily obligated to pay substitute court reporter fees regardless of whether the budget allocated sufficient funds to cover all of the fees. 628 F.2d at 301. As such, the payment of these salaries constituted a ministerial function unprotected by legislative immunity even though budgetary decisions are traditionally considered legislative functions. Id. at 306 n. 16; see also Vondy v. Commissioners Court of Uvalde, 620 S.W.2d 104, 110 (Tex. 1981) (holding that due to a constitutional mandate, the commissioners' court had no discretion to refuse to perform its ministerial duty to set a salary for a duly elected constable).
Due to the varied nature of the powers and duties of the commissioners' court, the Court finds that Defendant Lofland exercised some legislative functions and is therefore entitled to assert a defense of absolute legislative immunity. The Court must now determine whether Lofland's actions, as complained of by the Plaintiff, constitute legislative actions to which absolute immunity attaches.
B. Lofland's Legislative Actions
Lofland argues that absolute legislative immunity protects him in his individual capacity from all of Plaintiff's claims because they are premised upon his alleged failure to allocate sufficient funds for the county jail. Lofland's Joint Reply at 6. It is well established that voting on budgetary matters is a legislative function entitled to absolute immunity. Bogan, 523 U.S. at 56 (finding mayor's introduction of budget protected by legislative immunity); Alexander v. Holden, 66 F.3d 62, 65 (4th Cir. 1995) (stating that most budget decisions are generally decided by commissioners acting in their legislative capacity); Rataree, 852 F.2d at 950 ("[B]udgetmaking is a quintessential legislative function."); Jensen, 920 S.W.2d at 773-74 ("The commissioners court performs a legislative function when it creates the budget for the County's offices and departments."). Therefore, any claims based upon Defendant Lofland's failure to allocate funds to the jail must be dismissed. However, the Plaintiff does not predicate Lofland's liability merely upon his failure to allocate funds to the jail. Rather, the Plaintiff argues that Lofland failed in his administrative duty of seeing that the county jail complies with the minimum standards for jails set forth by the Commission on Jail Standards ("CJS"). Pl's Resp. at 9, 12 ("[I]t is clear that the root of the overcrowding at the Rockwall jail for over two years was administrative snags in the County's processing of inmates through the County criminal justice system.").
An explanation of the CJS and its role with regard to county jails is set forth in detail at infra Section D.
Lofland maintains that the only role he performed as county judge related to voting on motions and budgetary matters. Def.'s App., Affidavit of William Lofland, p. 3. He also understood that Sheriff Kiere held responsibility for running the jail and that Lofland had no authority to implement any policy or practice in relation to the jail's operation. Lofland Deposition, p. 25, Pugh/L App., Exh. 2 (stating that he believed that the sheriff was responsible for maintaining safe and suitable jails). Although this may be Lofland's belief, this does not provide sufficient evidence to shield him from liability with legislative immunity. The Court must look to Lofland's actual duties as opposed to his believed duties. Pugh argues that Lofland failed to perform his ministerial role of meeting the mandatory standards of the CJS. Pl's Resp. at 10-11. Therefore, the question becomes whether Lofland, as presiding officer of the commissioners' court, was required to perform administrative duties to ensure that the jail complied with the CJS minimum standards in some way other than providing funds to the facility.
The Court notes that the Defendant's belief goes more to the issue of qualified immunity's deliberate indifference analysis than legislative immunity.
C. Lofland's Administrative Duties and Actions
The Texas Legislature has, by statute, conclusively established the policies for the Texas county jails. Texas law imposes a duty upon the CJS to promulgate standards of construction, operation, and maintenance of county jails. Tex. Gov't Code Ann. § 511.009(a)(1) (West 1998). Under the statute, the CJS must promulgate reasonable rules and procedures establishing, among other things, minimum standards for the maintenance and operation of county jails, minimum standards for the custody, care, and treatment of prisoners, and minimum standards for the number of jail supervisory personnel. Tex. Gov't Code Ann. § 511.009 (a)(1)-(3). If the CJS finds that a county jail fails to meet the minimum standards and requirements, then it must give deficiency notices to the county and the sheriff and give them a specified amount of time to bring the jail into compliance. Tex. Gov't Code Ann. §§ 511.011 — 511.012 (West 1998); see also 37 Tex. Admin. Code § 297.5 (West 1985) (stating that the sheriff and the commissioners' court are required to initiate and complete the corrective measures necessary to comply with a CJS order). If the county and the sheriff fail to bring the jail into compliance with a CJS order, then the CJS may shut down the jail. Tex. Gov't Code Ann. § 511.012 (West 1998).
While the CJS must promulgate the minimum standards for the county jails, Texas law "identifies the county sheriffs and commissioners' court, not the CJS, as the keepers of the jails."Bush v. Viterna, 795 F.2d 1203, 1206 (5th Cir. 1986) (holding that the CJS could not be held liable for the unconstitutional conditions of county jails); see also Tex. Loc. Gov't Code Ann. §§ 351.035, 351.041 (West 1999) (identifying the sheriff as the keeper of the county jail). Although the daily operation of the county jail is vested with the sheriff, the commissioners' court does have general responsibilities in connection with the operation of the jail. See also Signature Serv., Inc. v. Tarrant County, 877 S.W.2d 465, 468 (Tex.Civ.App.-Ft. Worth 1994, writ denied) (noting that the Texas Code indicates a need for cooperation between the commissioners' court and the sheriff in conducting jail activities); Op. Atty. Gen. 1978, No. H-1190.
By Texas statute, the commissioners' court "shall provide safe and suitable jails." Tex. Loc. Gov't Code Ann. § 351.001 (West 1999). The commissioners' court must ensure that the jails within its county conform to the CJS standards. Tex. Loc. Gov't Code Ann. § 351.002. The county jail must be structurally sound, properly lighted, and kept in good repair. Tex. Loc. Gov't Code Ann. § 351.004. In creating this duty, the statute goes on to describe in a fair amount of detail the guidelines for space requirements, security, safety, sanitation and health. Id. §§ 351.007 — 351.014. The commissioners' court shares responsibility with the sheriff to initiate and complete any corrective measures ordered by the CJS within the time allotted. 37 Tex. Admin. Code § 297.5. At least one Texas state court has interpreted the commissioners' court liability as co-extensive with the sheriffs liability for maintenance of the jails. In Signature Services, 877 S.W.2d at 467, the court held:
the construction and maintenance of a county jail . . . as well as the operations thereof, are covered by the minimum jail standards, that compliance with such standards may be enforced against both the County and the Sheriff, and that the county has continuing exposure and potential liabilities respecting noncompliance with such standards, regardless of whether the noncompliance fails within the sole responsibility of the Commissioners' Court or the sole responsibility of the Sheriff or whether it falls within an area of responsibility shared by both the Commissioners' court and the Sheriff.
After reviewing the relevant Texas statutes, the Court finds that the commissioners' court has a duty to initiate procedures to address areas of noncompliance of the jails with the minimum standards set forth by the CJS. This duty is of an administrative nature, in that the commissioners' court has no discretion in determining whether or not to remedy the situation. The duty does not concern policy making, but rather implements a policy that has already been established. Furthermore, this action requires consideration of a specific set of circumstances rather than addressing generalities and hypotheticals. The Court emphasizes that these actions do not merely encompass budgetary decisions. On the contrary, Defendant Lofland identified several actions that he took in an attempt to alleviate and address the overcrowding at the jail. For these reasons, the Court determines that legislative immunity does not apply to Lofland' s alleged failure to take administrative actions to address the overcrowding at the Rockwall County Jail.
QUALIFIED IMMUNITY
Defendant Lofland also seeks summary judgment on the basis of qualified immunity. As a public official, Judge Lofland is entitled to qualified immunity from suit under § 1983 unless the Plaintiff demonstrates that he violated clearly established constitutional law. Schultea v. Wood, 27 F.3d 1112, 1115 (5th Cir. 1994). In assessing a qualified immunity defense, the court undertakes a bifurcated analysis. First, the court must determine whether the plaintiff alleges the violation of a clearly established constitutional right. Then, the court must analyze the reasonableness of defendant's conduct because "even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable." Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993).
The initial step in this analysis requires the Court to determine whether Pugh has sufficiently alleged a constitutional violation. See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (holding that the plaintiff must assert a constitutional right before the court determines whether the right asserted is `clearly established'); Samaad v. City of Dallas, 940 F.2d 925, 940 (5th Cir. 1991) ("In Siegert, the Court holds that a court addressing a claim of qualified immunity should first consider `whether the plaintiff asserted a violation of a constitutional right at all' before reaching the possibly unnecessary question of whether the plaintiff asserted a violation of a `clearly established' right."). Pugh alleges that Defendant Judge Lofland violated his right to be free from assault by other inmates by acting with deliberate indifference to the substantial risk of serious harm posed to Pugh as a pre-trial detainee in the Rockwall County Jail.
Jail "officials have a [constitutional] duty . . . to protect inmates from violence at the hands of other prisoners." Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995); see Johnston v. Lucas, 786 F.2d 1254, 1258 (5th Cir. 1986). To establish a failure to protect claim under § 1983, Pugh must show that "he is incarcerated under conditions posing a substantial risk of serious harm and that prison officials were deliberately indifferent to his need for protection." Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). An official is not subject to section 1983 liability for acts or omissions of his subordinates on the basis of respondeat superior. Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992). A prison official cannot be found liable in his individual capacity for denying an inmate humane conditions of confinement unless the plaintiff can show that the official was aware of facts from which the inference could be drawn that a substantial risk of harm existed and that he drew the inference, Downey v. Denton County, 119 F.3d 381, 385 (5th Cir. 1997); Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words, a jail official may be held liable for episodic acts or omissions only when that official had subjective knowledge of a substantial risk of harm to the pre-trial detainee, but responded with deliberate indifference to that risk. Hare, 74 F.3d at 650; Payne v. Collins, 986 F. Supp. 1036, 1952 (E.D. Tex. 1997).
Pre-trial detainees and convicted prisoners look to different constitutional provisions for their respective rights to basic needs such as medical care and safety. The constitutional rights of convicted state prisoner are based on the Eighth Amendment's prohibition on cruel and unusual punishment while the constitutional rights of pre-trial detainees flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment. Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996). A pre-trial detainee's due process rights are at least as great as the Eighth Amendment protections available to a convicted prisoner. Id.
The plaintiff may prove this condition through circumstantial evidence. In fact, a factfinder may conclude that a jail official knew of a substantial risk from the fact that the risk was obvious. Payne v. Collins, 986 F. Supp. 1036, 1053 (E.D. Tex. 1997) (citing Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1996)). "For example, if [a] . . . 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 permit a trier of fact to find that the defendant-official had actual knowledge of the risk.'" Farmer v. Brennan, 511 U.S. 825, 842-43 (1994).
The plaintiff must meet an objective standard in proving the first element — the presence of conditions creating a substantial risk of serious harm. Payne, 986 F. Supp. at 1052. However, the second element — that the jail official acted with deliberate indifference — is a subjective standard. Payne, 986 F. Supp. at 1052 (citing Farmer v. Brennan, 511 U.S. 825, 840 (1994)). To prove this element, the plaintiff must demonstrate that the defendant knew of and disregarded the substantial risk of serious harm. Farmer, 511 U.S. at 843. Pugh may meet his burden by demonstrating that Lofland "knew of ways to reduce the harm but knowingly declined to act, or . . . knew of ways to reduce the harm but recklessly declined to act." Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1995); Payne, 986 F. Supp. at 1053 (quoting Hale); LaMarca, 995 F.2d at 1536 ("if an official attempts to remedy a constitutional deficient prison condition, but fails in that endeavor, he cannot be deliberately indifferent unless he knows of, but disregards, an appropriate and sufficient alternative").
The Plaintiff presented evidence of the continuous overcrowding of the jail, the disrepair of the jail, and the statements from Kiere indicating an increase in violence due to the overcrowding and under-staffing at the Rockwall County Jail. The Court finds that this evidence creates a question of fact as to whether the conditions of the jail subjected the Plaintiff to a substantial risk of harm.
As evidence of Defendant Lofland's knowledge of these conditions, the Plaintiff introduced letters from the CJS and Jack Crump, the executive director of CJS. These letters were written to Defendant Lofland and warned him that the Rockwall County Jail was overcrowded. These warnings certainly prove Judge Lofland's knowledge and awareness of the overcrowded situation at the jail and of the inability of the jailers to provide all of the required services to the inmates. The evidence failed to prove Defendant Lofland's knowledge that the jail was in disrepair. A reasonable trier of fact may use circumstantial evidence to find that a defendant had an actual awareness of the substantial risk of inmate on inmate violence due to the overcrowding, see supra, n. 9. However, Pugh has not provided evidence from which this Court can infer that Lofland himself knew that inmates at Rockwall County Jail faced a substantial risk of harm from the alleged overcrowding and disrepair of the jail. Overcrowding alone does not rise to the level of a constitutional violation. See Rhodes v. Chapmen, 452 U.S. 337, 348 (1981) (holding that double celling due to overcrowding did not violate the Constitution where the increase in prison population did not lead to deprivations of essential food, medical care, or sanitation or increase violence among inmates or create other conditions intolerable for prison confinement). Absent some documentation of an increased number of inmate on inmate assaults, the Court cannot find that Lofland was or even should have been aware that the overcrowding had reached a level to create a substantial risk of serious harm. The Court finds that Pugh has not demonstrated that Lofland was aware of facts concerning the overcrowding from which the inference could be drawn that a substantial risk of harm existed. Without knowledge of a substantial risk of serious harm to the inmates, Lofland cannot be deliberately indifferent. Therefore, the Court GRANTS Lofland's Motion for Summary Judgment based upon qualified immunity
See Pugh/L App. Exh. 4 (August 29, 1997 letter from CJS to Lofland notifying him that jail failed to comply with standards regarding occupancy in single cells); Exh. 5 (September 30, 1997 letter from Kiere to Lofland stating that due to the understaffing, "operational activities which are vital to the operation of the jail are not being performed, or are being performed inadequately" and that Rockwall County needs to "reduce the population through internal action or transfer to another county"); Exh. 6 (March 27, 1998 letter from CJS to Lofland, noting that the Rockwall County Jail was operating at 147% capacity and ordering "you must deal with the overcroding situation and effect a feasible solution" until the expansion was complete); Exh. 15 (minutes from October 1997 county commissioners' meeting wherein Kiere testified that "the current staff is insufficient to provide proper supervision of the inmates and to accomplish the tasks that are required by jail standards commission"); Exh. 18 (November 15, 1996 remedial order from CJS regarding overcrowding); Exh. 21 (September 4, 1997 jail needs analysis from CJS to Lofland giving inmate population projections, identifying overcrowded situations, identifying local sentencing practices as affecting jail space, and stating that it may be beneficial to discuss options with the judges in order to mitigate the overcrowding); Exh. 22 (December 18, 1997 letter from CJS to Lofland identifying Rockwall County as having a disproportionate number of pretrial detainees as inmates of the county jail); Exh. 23 (September 19, 1997 letter from insurance provider to Lofland threatening to discontinue insurance coverage due to the overcrowding situation).
The only evidence of disrepair was a July 10, 1998 noncompliance letter from the CJS to Lofland citing the jail for broken locks, inadequate lights, inadequate visual observation of the inmates, broken intercom systems, and needing to implement an approved classification system. Exh. 20, Pugh/L App. Although Kiere testified that all of these conditions were present prior to Pugh's assault, the existence of these deficiencies does not establish that Lofland knew of them. The Plaintiff presented no evidence that Kiere ever reported these problems to Lofland prior to Pugh's assault.
CONCLUSION
The Court finds that specific Texas statutes created an administrative duty for Judge Lofland to take actions to comply with the standards set forth by the CJS. The Court GRANTS Defendant Lofland's Motion to Dismiss the Individual capacity Claims Against Based upon Absolute Legislative Immunity only to the extent that the Plaintiff alleges liability for his failure to allocate sufficient funds to the jail; however, the Court DENIES the Motion to Dismiss for liability premised upon his failure to perform his administrative duties. To the extent that those claims survive, the Court GRANTS the Defendant's Motion for Summary Judgment based upon Qualified Immunity.
So ordered this 10th day of March, 2000.
THE HONORABLE JORGE A. SOLIS UNITED STATES DISTRICT JUDGE