The Honorable Pasco M. Bowman succeeded the Honorable Richard S. Arnold 1

as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close

of business on April 17, 1998.

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, and McMILLIAN and WOLLMAN, 1

Circuit Judges.

___________

McMILLIAN, Circuit Judge.
The Honorable Sarah W. Hays, United States Magistrate Judge for the Western 2

District of Missouri.

In addition, the district court granted Ware’s motion for attorneys’ fees. The

3

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-

Jackson County, Missouri (the County), appeals from a final order entered in the

United States District Court for the Western District of Missouri in favor of inmate

2

Sylvia Ware (Ware), following a jury verdict of $50,000 on her 42 U.S.C. § 1983

claim. Ware v. Jackson County, No. 95-0477-CV-W-BD (W.D. Mo. Feb. 19, 1997) 3

(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.
-3-

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
-4-

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
Megerman testified that he and McCoy discussed the need to pay closer

4

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.

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not to terminate him. CO Toomer remained stationed on the same floor where Hylton 4

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
The fluid and hair samples suggested that the perpetrators were black. Both

5

inmate Noble and CO Williams are black.

-6-

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. Also, Noble’s cup was later found in Stone’s cell. Both inmates Stone and 5

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
-7-

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
-8-

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
William Waris and Marsha Murphy held the position of County Executive from 6

1988-1990 and 1990-1993, respectively.

-9-

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. Both the Manager of Administration and the County Executive have 6

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:
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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 exinmates 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
-11-

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 (8 Cir. 1994)

th

(McGautha); Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8 Cir. 1990) (Jane th

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;
See infra note 9. 7

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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 (8 Cir. 1997) (Hathaway). Indeed, to prevail on appeal, the County has the

th

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 (8 Cir. 1992)). “Judgment as th

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 liability on the ground that Megerman was not a final policymaker such that 7
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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 (8 Cir. 1997) (Freitas) (holding that welcome and consensual sexual contact

th

between inmates and prison personnel does not violate the Eighth Amendment), and

Timm v. Gunter, 917 F.2d 1093, 1102 (8 Cir. 1990) (Timm) (holding that “minimal

th

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
Some of the evidence of sexual misconduct introduced at trial involved an

8

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 (8 Cir. 1997) (“[V]iolation of an internal prison

th

regulation does not by itself give rise to an Eighth Amendment claim.”) (citing Falls v.

Nesbitt, 966 F.2d 375, 379-80 (8 Cir. 1992) (rejecting argument that a prison official’s th

violation of an internal regulation is tantamount to a violation of the Eighth

Amendment)). 

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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. Instead,

8

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.”).
-15-

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
Jury Instruction No. 13 reads as follows: 9

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. 

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regarding the “pattern of unconstitutional conduct.” The County asserts that this

9

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 (8 Cir. 1992) (Parrish)

th

(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
-17-

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, welldocumented, 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 defendantofficial 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
-18-

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 (8 Cir. May 22, 1998) (holding th

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 (8 Cir. 1997) (upholding jury’s finding that

th

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.
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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
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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 (8 Cir. 1994) (Tilson) (“[A] th
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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 (8 Cir. 1987) (internal quotation omitted). The evidence in the instant case th

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
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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.
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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
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[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).
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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 (8 Cir. 1992) (holding that police chief th

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.
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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.