The Honorable Pasco M. Bowman succeeded the Ho norable 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 Magistr ate Judge for the Western 2 District of Missouri.
Inaddition, the district court granted Ware’s motion for attorneys’ fees. Th e 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 fina l order entered in the United Stat es District Court for the Western District of Missouri in favor of inmat e 2 Sylvia Ware ( Ware), following a jury verdict of $50,000 on her 42 U.S.C. § 198 3 claim. Ware v. Jackson County , No. 95-0477-CV-W-BD (W.D. Mo. Feb. 19, 1997) 3 (he reinafter

“slip op.”). For reversal, the County argues that the evidence wa s insuffic ient

as a matter of law to establish (1) a continuing, widespread, persisten t pattern of unconstitutional conduct by county employe es; (2) deliberate indifference by th e County to a substantial risk of harm to Ware; and (3) a causal link between th e County’s conduct and Ware’s injury. In additi on, the County contends that the district court erred in omitting the words “continuing,” “widespread,” and “persistent” fro m the jury instruction on “pat tern of unconstitutional conduct” and in instructing the jury that the Director of the Jackson County Department of Corrections (JCDC o r “the jail”) is a final policymaker for the County. For the reasons discussed below, we affirm the order of the district court.

Jurisdiction

T he district court had subject matter jurisdiction over this civil rights actio n 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 emplo yees at the JCDC toward f emale inmates. Ware was an inmate at the JCDC in August 1993. At al l relevant times, Megerman served as the director of the JCDC. In 1995 Ware brought a § 1983 action against the County, alleg ing that JCDC Corrections Officer (CO) John Toomer raped her in violation of the Eighth Amendment while she wa s a JCDC inmate. Ajury returned a verdict of $50,000 in favor of Ware and against the County o n 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 th e 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, 199 3. Less than

one month later, inmate Jacqueline Dela Cruz alleged that Toomer ordered anothe r inm ate, Mary Hylton, to expose her genitalia to him. According to Dela Cruz, on a t 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 pul l down her pants in order to obtain a candy bar. In addition, CO Toomer woul d fre quently open Hylton’s cell, make obscene sexual gestures to Hylton, and talk t o Hyltonabout 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 othe r 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, aske d her for her telephone number and address, engaged i n 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, w ho then relayed their complaints to the Manager of Detention, James McCoy, in a me morandum 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 somethingto this.” Id. Also

on April 9, 199 3, Pat Byler, the GED teacher at the jail, sent a memorandum to Jo n Barth, Administrative Assistant to the Manager of Detention, advising him of Del a 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 hi s 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 t rusted. Barth wrote: “This investigation has shown that CO Toomer h as 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.
Desp ite Barth’s recommendation, no disciplinary action was taken against CO Toomer. Instead, Megerman sent CO Toomer a memorandum stating that h e (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 decisionMegerman testified that he and McCoy discussed the need to pay close r 4 attention to CO Toomer, but no one was assigned this task or made aware of thi s concern. Shi ft Administrator (SA) Jackie Robinson testified that his usual practice in such ci rcumstances would be to tell CO Toomer’s immediate supervisor, Rand y 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- not to terminate him. CO Too mer 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 C O Toomer’ s misconduct, this time stating that Hylton had reported that she and C O Toomer were having sexual intercourse and oral sex and that she consented to suc h activ ity. Several days later, Byler received a memorandum from Jon Morefield , “inv estigative specialist” for the JCDC, in response to Byler’s second memorandum

. Moref ield’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 i s now closed.” Id. at 1109. According to the County, Morefield mistake nly assumed that Byler’s memorandum pertained to Hylton’s first set of allegations and failed t o recognize that these were, in fact, new allegations. Morefield’s memorandum to Byler was the only document generated from By ler’s second memorandum. Neither McCoy, Morefield, nor anyone else at the jail interviewed Byler about what Hy lton had told him. Morefieldlater testified that he never conducted an investigation of these allegations. Megerman testified that knew of the second set of al legations 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 n ight of August 29, 1993, Ware reported to Terri O’Neill, the actin g Corrections Supervisor (CS), that she had been raped in her cell by CO Toomer. UponThe 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 super visor, Norman Dennis on, who was the acting Shift Administrator (SA). SA Dennison responde d immediate lyto CS O’Neill’s report and went to speak to Ware directly. Pursuant t o JCDC policy, Ware’s cell was sealed, and the Jackson County Sheriff’s Departmen t
was called and advised of Ware’s allegation. Ware was then taken to the JCD C medical clinic and later transported to Truman Medical Center where vaginal swab s 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 o f the JCDC in or around March 1990. While being transported in th e infirmary, COJohnson 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 ha d sexual intercourse with her, and then let an inmate, Donald Noble, into the cell to have sex with her. CO Williams th en reentered the cell after Noble and had sex with Stone again. Stone reported the May 18 incident to a nursing student and also spoke t o several othe r JCDC personnel about it. Soon thereafter, Stone was taken to Truma n Medical Center. Stone’s medical examination indicated the presence of hairs an d seminal fluid that were racially consistent with those of inmate Noble and C O 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 key s. CO Williams was suspended pending the outcome of the County’s investigation of the May 18-7-

inci dent. The County later determined that CO Williams had not had sexual contac t 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 C O Jeffrey Burge tt. Jackson alleged that Burgett had sexual intercourse with her. During the investigation of this incident, CO Burgett gave conflicting statements about wha t happened an d was not forthcoming with information. A polygraph test of CO Burgett revealed that he had n ot truthfully answered questions pertaining to his sexual conduct toward Jackson. As a result, a three-day suspension w as recommended. However, CO Burgett w as never disciplined for this incident. Instead, Megerman sent him a
me morandum

stating in pertinent part: “You assured us that this will never happe n again, and I once more choose to believe you.” Id. at 372. Also, a note was placed in CO Bu rgett’s personnel file that Megerman and Robinson would watch him closely

. There is no evidence that any additional supervision took place.

O n November 1, 1989, Captain Pierce forcibly stripsearched a resistant female inmate. Megerman concluded that, because there were no exigent circumstance s preci pitating the search, the inmate should have been searched by a female guar d pursua nt to JCDC policy. After an investigation of this incident, Megerman tol d Pierce: “Knowi ng you as well as I do, I feel this won’t happen again.” Id. at 385

. Meger man

also recommended that Pierce, who had served at the JCDC for twent y 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 anothe r officer, Stanley Brooks, had sex with a female inmate. During a n 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 inm ate. CO Brooks was subsequently terminated. The investigation further revealed that CO Bomar did not rep ort the incident as required-8-

by JCDC policies and procedures. CO Bomar remained stationed at the jail but wa s 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 h ad had sex with White. In 1989 itwas r eported that CO Hooten gave White fifty dollars to perform a sex act. Th e inves tigator

concluded that White was more involved with CO Hooten than sh e 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 sevent h floor to “check on” White. Barth later reviewed the file on Hooten an d 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 Kli mt had performed pat-down searches of females inmates in viol ation of JCDC policy. Captain Barth witnessed this misconduct and

failed to report it. The investigator of this incident recommended that Barth b e suspended for one day. However, neither CO Klimt nor Barth wer e discip lined; Megerman merely told CO Klimt that he should slow down because pa t down searches are unacceptable and he should “know better.”

In August 1989 the Support Services Supervisor at the JCDC, Abayom i Owoyemi, was accused of putting his hand down the front of a female inmate’s pants. Ac cording to the County, an investigation of this incident revealed no evidence t o support the allegation, so no disciplinary action was taken.

Barth t estified that he could not recall any instance where there had bee n incr eased 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 noWilliam Waris and Marsha Murphy held the positi on 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 byExecutive Order of the County Executive, and is subject to his or her control. The chain of command for JCDC staff begins with the C orrections Officer (e.g., CO Toomer), who is supervised by the Correction s Supervisor (e.g., Terri O’Neill), who reports to the Shift Administrator (e.g., Jacki e Ro binson), who reports to the Manager of Detention (e.g., James McCoy), who i s supervisedby the Department Director (in this case, Charles Megerman), who is, i n turn, supervised by the Manager of Administration, and ultimately by the Jackso n County Executive. Both the Manager of Administration and the County Execu tive have 6 the right to overrule any decision made by the Department Director and the authorit y to request that an employee be subject to additional supervision. Megerm an’s personnel dec isions are reviewable by the Jackson County Merit System Commission and ar e subject to the Jackson County Merit System Commission Ordinance. Id. at 1148.

At all relevant times, the JCDC Policy Statement setting forth general rules o f conduct, major rule violations, and disciplinary sanctions was issued by the authorit y of Megerman. The JCDC Policy and Procedures Manual expressly provides that th e JCDC is accountable to County officials, and that the internal policies are subject t o review and change by the County Executive. The Policy Statement provides in part:-10-

When an em ployee violates a rule of conduct, the supervisor of tha t empl oyee must address the infraction. This includes bringing the rul e infraction to the attention of the employee with a discussion of how tha t rul e was actually violated. The supervisor must also determine whethe r or not to recommend a disciplinary sanction against the employee

. Ad ministrative and management level staff will review disciplinar y sanctions and decide on the final review of that sanction

.

. . . . All discipline is administered with the understan ding that the Director may choose alternative sanctions not mentioned in the sugg ested range as listed in this policy. This in cludes reducing or increasing the sanction imposed.

Id. at 1112, 1121 (emphasis added).
The Policy Statement also expressly prohibits sexual contact between inmate s and staff; indeed, “becomi ng involved socially and/or romantically with inmates or exinmate s 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 th e jail and for establishing and revising written policies. Megerman testified that h e “assumes responsibility for whatever happens in jail.” Id. at 478. None of th e documents produced by the County indicates that the County Legislature, Count y Executive, Manager of Administration, or any other agen cy played a role in disciplining any JCDC employees or settin g any of the policies that were introduced into evidence. Rather, all the policy statements produced by the County refer to Megerman as th e “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 wa s sent or refers to any other county agency or department.
Barth testified that Megerman had the authority to reassign officers , including CO Toome r, to different locations or to require that they have additional supervision

. McCoy test ified that the final decision as to CO Toomer’s discipline rested with Mege rman. By the same token, however, Megerman testified that, in the past, he has been ordered by his supervisors to reinstate or promote particular employees. H e further testified that he has been overruled on policy decisions and ordered to change performa nce evaluations. Also, in 1990 the Manager of Administration instructe d Meger man

that he could not send memoranda to anyone without first having suc h memoranda reviewed and approved.

Discussion
A plai ntiff may establish municipal liability under § 1983 by proving that his or her con stitutional rights were violated by an “action pursuant to official municipa l poli cy” or misconduct so pervasive among non-policymaking employees of th e muni cipality “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 quotatio n omitted) ; see also McGautha v. Jackson County , 36 F.3d 53, 55-57 (8 Cir. 1994 ) th ( McGautha ); Jane Doe A v. Special Sc h. Dist. , 901 F.2d 642, 646 (8 Cir. 1990) ( Jane th Doe A ). “Official policy inv olves ‘a deliberate choice to follow a course of action ***

ma de from among various alternatives’ by an official who [is determined by state law to have] the final authority to establi sh governmental policy.” Jane Doe A , 901 F.2d at 645. Alternatively, “custom or usage” is demonstrated by:
1) The e xistence of a continuing, widespread, persistent pattern o f unconstitutional misconduct by the governmental entity’s employees;See infra note 9. 7
-12- 2) Deliberate in difference to or tacit authorization of such conduct by the governmental entity’s policymaking officia ls after notice to the officials of that misconduct; and 3) Th[e] plaintiff[’s] injur[y] by ac ts pursuant to the governmental entity’s custom, i. e. , [proof] that the custom was the moving force behind th e constitutional violation.
Id. at 646 (citing Harris v. City of Pagedale , 821 F.2d 499, 504-07 (8th Cir. 1987 ) ( Harris )).

At trial, Ware a

rgued 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 bec ause 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 rev iew 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 th e

th difficult task of demonstra

ting that the evidence “points one way and is ‘susceptible of no reasonable inference sustaining the position of’” Ware when vi ewed in the light most favorable to the verdict. Keenan v. Computer Assoc. Int’l, Inc. , 1 3 F.3d 1266, 1269 (8 th Cir. 1994) (quotin g 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 th e nonmoving party.” Hathaway , 132 F.3d at 1220 (internal quotations omitted).

The Count y also challenges the district court’s instruction to the jury o n municipal liability on the ground that Megerman was not a final policymaker such that 7-13-

li ability can be imputed to the County from his conduct. We address each of thes e 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 unco nstitutional conduct existed at the JCD C. First, the County asserts that Ware introduced only a “handful” of prio r complain ts of sexual misconduct. According to the County, this “handful” i s probatively insignificant because approximately 8,000 inmates are processed through the JCDC annually. In addition, the County contends that a meaningful portion of the complai nts involves consensual or constitutional conduct that violates internal JCD C policie s but has no constitutional implications, citing Freitas v. Ault , 109 F.3d 1335 , 1339 (8 Cir. 1997) ( Freitas ) (holding that welcome and consensual sexual contac t

th between inmates and prison personnel does not violate the Eighth Amendment), an d Timm v. Gunter , 917 F.2d 1093, 1102 (8 Cir. 1990) ( Timm ) (holding that “minima l th intrusions on an inmate’s privacy,” such as the surveillance of a showering inmate, may be outweighed by penological and safety concerns).

Th ird, the County contends that Ware failed to support most of the complaint s of sexual misconduct with competent evidence, and that the complaints that wer e
su pported with competent evidence ( e.g. , the Stone and Hylton complaints) wer e promp tly and thoroughly investigated. Although the County concedes that Hylton’ s second set of allegatio ns 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

sexu al misconduct of JCDC staff, the pattern was not continuing. Specifically, th e County notes that there is a gap of three years between the complaints of sexua l misconduct involving CO Toomer in 1993 and those involving other officers in o r around 1988-1989. Finally, the County relies on JCDC policies expressly forbiddingSo meof the evidence of sexual misconduct introduced at trial involved a n 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 betw een 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 priso n 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 viol ation of an internal regulation is tantamount to a violation of the Eight h Amendment)).
-14- sexual contact between staff and inmates as evidence that it does not c ondone, 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 uncon stitutional conduct at the JCDC, the district court relied on conduct that thi s court has specifically held not to be unconstitutional in Freitas and Timm

. Instead , 8 viewing the remainin g evidence in the light most favorable to the jury verdict, we hold th at 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 existe d from the evidence of CO Toomer’s sexual misconduct, which spanned five months and involved extortion, deception, and repeated sexual acts wit h an inmate of limited mental capacity, culminating in the rape of Ware. The pattern is also evidenced by the Stone, White, a nd Jackson incidents. That there was a gap of three years between C O Toomer’s misconduct

and that of other officers does not amount to a series of isolated incidents so far apart in time that CO Too mer’s misconduct may be considered a single act up on which custom or usage cannot be based. Cf. McGautha , 36 F.3d at 5 7 (“Liability for an unconstitutional custom or usage . . . cannot arise from a single act.”).-15-

Nor does th e number of mishandled complaints compared to the number of inmate s undermine our conclusion wher e 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 followednor 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 t o reveal a pattern of sexual misconduct by county personnel that is anathema to “‘th e evolving s tandards 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, 10 1 (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 juryJury Instruction No. 13 reads as follows: 9

Your

verdict must be for plaintiff and against defendant Jackson County, Missouri[,] if all the followingelements have been proved by the preponderance of the evidence:
First , there was a pattern of unc onstitutional misconduct by John Toomer or other jail guards, and
Sec ond , Charles Megerman knew of these incidents of unconstitutiona l misconduct, and
Th ird , Charles Megerman was deliberately indifferent or tacitl y authorized the unconstitutional misconduct; and
Fourth , as a direct result, the plaintiff was injured. Joint Appendix at 1028.
-16- reg arding the “pattern of unconstitutional conduct.” The County asserts that thi s 9 omission substantially affected its rights.

In Parrish v. Luckie , we affirmed a similar instruction under the same challenge of in completeness on the ground that the “proffered language [ i.e. , ‘persistent, ’ ‘widespread,’ and ‘continuing’] merely lays out the common characteristics of the word ‘pattern’ a nd is, therefore, surplusage.” 963 F.2d 201, 206 (8 Cir. 1992) ( Parrish ) th (rejectin g 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 Coun ty contends that there is insufficient evidence to establish that it wa s 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 sexua l assault and to enforce its internal policies prohibiting sexual misconduc t toward inmates.

In Far mer 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 Eight h Amendment if “the o fficial 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 b e 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 offici al 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 h is [or her] knowledge of a substantial risk of serious harm.” Id. Th e Court further explained:

[I ]f an Eighth Amendment plaintiff presents evidence showing that a subs tantial risk of inmate attacks was longstanding, pervasive, well

document ed, or expressly noted by prison officials in the past, and th e circu mstances suggest that the defendant-official being sued had bee n exposed to information concerning the risk and thus “must have known” about it, then such evidenc e 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 offici als were notified on “repeated occasions” of employee misconduct but “repeatedly failed to take-18-

any remedial action”). More recently, we have applied this co ncept 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 rest rictive medical condition, that inmate had confirmed physical l imitations, 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 tha t th offi cer was deliberately indifferent to a known risk of harm in opening a dangerou s inmate’s cell door without a guard escort); Andrews v. Fowler , 98 F.3d 1069, 1078 (8 th Cir. 19 96) (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 office r committe d an offense were sufficient to prove Chief was deliberately indifferent t o victim’s rights).

In our view, the County’s deliberate indifference is evidenced by its failure t o discipline adequately CO Toomer and other officer s who engaged in sexual misconduct when there was ample evidence that female inm ates were placed at a substantial risk of serious harm. Further, there is sufficient evidence that the County had notice because Me german, a final policymaker, see infra , knew of CO Toomer’s and other officers ’ sexual misconduct.
Megerma n

knew of allegations that CO Toomer demanded that inmate Hylto n
e x pose herself to him on two separate occasions, allowed a male inmate to look in on inma tes Hylton and Dela Cruz while they were using the toilet, propositioned inmat e Hy lton 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 rec ommend that CO Toomer be term inated. Finally, Megerman knew that a second set of allegations of sexua l misconduct were made against CO Toomer that was never investigated.-19-

As for Megerman’s subjective awarenes s of an obvious risk of harm, Megerman testified that he believed t

hat 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 wo uld be appropriate to supervise him more closely. Id. at 486. Moreover , Megerman knew of and expressly disregarded Barth’s recommendation that CO T oomer be terminated. Hence, this case is easily distinguishable from situations in which th e 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’ knowledg e 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 cou ld not have known that CO Toomer presented an obvious, substantial risk of serio us harm to Ware because there was no evidence of prior offenses toward Ware by CO Toomer: “[A] priso n offici al [may not] escape liability . . . by showing that, while he [or she] was aware of

an obvio us, substantial risk to inmate safety, he [or she] did not know that th e complainant was especially likely to be assaulted by the specific [individual] wh o eventually committed the assault.” 511 U.S. at 843.
Indeed, despite Megerman’s actual knowledge of CO Toom er’s history of sexual misconduct involving female inmates, Megerman did not discipline CO To omer or order any precautionary measures to pro tect female inmates from being further victimized by him. CS Randy Howard, CO Toomer’s immediate supervisor, and CO O’Neill, th e acting CS on the date of the initial misconduct, were informed of the first set o f allega tions against CO Toomer. However, there is no evidence that they wer e 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 miscond uct

allegations against CO Toomer. The foregoing facts, by themselves , su pport the jury’s finding of deliberate indifference on the part of the County

. Moreover, there is additional evidence of sexual misconduct among JCDC personnel-20-

towar d inmates, such as the Stone, White, and Jackson incidents, which evince a n ongoing disregard of a pattern of sexual misconduct at the JCDC.
The County cites several instanc es in which complaints of sexual misconduct by JCDC employees were promptly and thoroughly investigated and the culpabl e employees were sanctioned. However, this evidence is not quantitatively sufficient to

co unter the proven instances of wilful disregard for which the jury found the County liab le. Moreover, as stated above, neither the County’s written policies prohibitin g
unco nstitutional 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 per

mits 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. Th e County has not met either burden; accordingly, we hold that th ere is sufficient evidence,

as a matt er of law, to support the jury’s finding that the County was deliberatel y indi fferent

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 delibera tely indifferent, Ware was required to establ ish 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

mu nicipality was the ‘moving force’ behind the injury alleged.”); Monell , 436 U.S. at 694 (ho lding that official policy must be “the moving force of the constitutiona l violation” in order to establish the liab ility of a government body under § 1983); Tilson v. Forrest City Police Dep’t. , 28 F.3d 802, 807 (8 Cir. 1994) ( Tilson ) (“[A] th-21-

governmen t

custom of laxness or inaction must be the moving force behind th e constitut ional violation.”). The County contends that the evidence is insufficient t o support such a finding. The County argues that i ts failure to discharge or discipline CO Toomer as Barth recommended in May 1993 was not the “moving force” behind Wa re’s injury bec ause the County’s “inaction” was not “highly likely to inflict the particular injury s uffered by [Ware].” Brown , 117 S. Ct. at 1392. The County also maintain s that the connection between Megerman’s knowledge and the specific constitutiona l violation is tenuous. Furthermore, the County reminds this court that “[w]here a claim of municipa l liability rests on a single decision, not itself representing a violation o f federal law and not directing such a violation, the danger that a mun icipality will be held liable without fault is high.” Id. at 1390.
Recognizing this danger and after careful review, we conclude that the evidence is suffici ent to support the jury’s finding that the County’s failure to discipline C O Toomer (and other officers) was the moving force behind Ware’s injury. In Harris v. City of Pageda le , we held that, where it becomes clear that an employee or group o f 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 clea rly 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, mor e stringent disciplinary action. Megerman d eclined, however, to exercise his authority to discipline CO Toomer, subject him to closer supervision, reassign hi m 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 perso nnel was the moving force behind the violation of Ware’s constitutiona l rights. Accordingly, the evidence was su fficient, as a matter of law, to support the jury finding that the “inevitable result” of Megerman’s-22-

fa ilure to address meaningfully CO Toomer’s record of sexual assault, extortion, an d deception w as the continuation of that sexual misconduct, including the rape of Ware.
Final policymaker for the County

It is well-settle d that the doctrine of respondeat superior does not apply under § 1983, M onell , 436 U.S. at 691, and that “[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municip al policy with respect to the action ordered.” Pe mbaur v. City of Cincinnati , 475 U.S. 469, 481 (1986) ( Pembaur ). “[T ]he authority to make municipal policy is necessarily the authority to make fina l policy.” Praprotnik , 485 U.S. at 127. As noted above, a plaintiff can establis h municipal li ability 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 munici pal 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 t o 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 p olicymaker for purposes of § 1983 liability. Slip op. at 18-23. Whether Me german 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 wellas ‘custom or usage having the force of law’, the trial judge must identify those officials . . .who speak with final policymaking authority . . . concerning the action alle gedto have caused the particular constitutional . . . violation at issue.”)

. Accordingly, we review the district court’s determination de novo

.-23- Whe n an official’s discretionary decisions are constrained b y polic ies not of that official’s making, those policies, rather than th e subo rdinate’s departure from them, are the act of the municipality

. Similarly, when a subordinate’s decision is subject to review by th e 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 munici pal liability may not attach; on the other hand, an absolute delegation o f authority may implicate the mu nicipality. Williams v. Butler , 863 F.2d 1398, 1402 (8 th Cir. 1988) (noting “fine line” between delegating final policymaking authority an d entrustingdiscretionary authority to official). Thus, the key question before this court is whether the Count

y delegated to Megerman its power to establish final employment polic y with respect to the discipline of officers. If so, then “[Megerman]’s decision s 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 o n 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 o f Adm inistration, he is not a final policymaker. The County asserts that Megerma n merely possessed discretionary authority that was constrained by poli cies of the County. As evidence of Megerman’s limited authority, the County cites the following examples: In 199 0 the Manager of Administration reviewed every memorandum written b y Megerman before he was allowed to distribute it. The County Mission Statemen t provides that the JCDC “will be accountable for its oper ation to County officials.” J.A. at 922. Likewise, JCDC “Personnel Policies”state that the “Personnel Department , County E xecutive’s Office, and the County Merit System Commission conducts , reviews, and initiates change o n an as needed basis.” Id. at 1148. It further states that-24-

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

Id. at 924.

The Coun ty also relies on this court’s holding in McGauthafor support. I n McGautha , we upheld a jury instruction that Jackson County policy-making official s
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 collection s depart ment

were not final policymakers for this purpose because “[t]hey merel y exercised their discretion in carrying out officially pronounced county policy[;] . .

. [t]heir actions were reviewable b y 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 re cognized the distinction in proving municipal liability through “official policy” or “custom or usage” and its bearing on determining w ho is a final policymaker. Id. at 57 (“The jury could have found a discriminatory custom sufficient to impos e liabili ty by considering the actions of the individuals that the court properly remove d fromthe pol icy making ambit.”). In our separate analysis on “custom or usage,” w e affirmed the district court on the ground that a single act cannot create liability fo r unconstitutio nal custom or usage. We reaffirmed, however, the principle that conduct of non-policymaking municipal employees can be imputed to the county where th e county’s po licymaking 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).-25-

In the instant case, we hold that the district court correctly identified Megerman as a final policymaker on JCDC personnel matters on the followi ng bases: Megerman’s position as director of the JCDC which has approxim ately 262 employees; his authority to promulgate JCDC po licy, which sets forth, among other things, the rules of conduct for JCDC personnel; his authority to implement such policy; his exclusive handling of the discipl inary actions in this case; and the absence of a proven mechanism throug h which th e 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 deliberat e indif ference to a known pattern of unconstitutional police misconduct); see als o Angarita v . St. Louis County , 981 F.2d 1537 (8 Cir. 1992) (holding that police chief th who w as highest ranking police official in St. Louis County, responsible for the entire depar tment, and responsible for drafting and approving many of the department’ s general order s had final policymaking authority in St. Louis County). We believe that this conclusion is further suppor ted 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 ra nge 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 J ett , 491 U.S. at 737 (noting that official must have final policymaking authority on the “particular issue” that allegedly caused th e consti tutional 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

re garding CO Toomer is especially apparent because CO Toomer was a probationary employee who could not seek formal review of adverse employment decisions.-26-

Acc ordingly, we hold that Megerman was a final policymaker for purposes o f determinin g § 1983 municipal liability with respect to the decisions at issue in th e 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.