## F I L E D United States Court of Appeals Tenth Circuit 

### APR 9 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GENARO LOPEZ,

Plaintiff-Appellant,

v. KENNETH LEMASTER, individually and as Sheriff of Jackson County,

Defendant-Appellee. No. 98-6203

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-97-1699-M)

Submitted on the briefs: Carson L. Carter III, Oklahoma City, Oklahoma, for Plaintiff-Appellant. Rodney C. Ramsey, Oklahoma City, Oklahoma, for Defe ndant-Appellee.

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

BARRETT , Senior Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral ar gument. -2- Plaintiff-appellant Genaro Lopez appeals from the d istrict court’s order granting summary judgment to defendant-appellee Ken neth LeMaster on appellant’s complaint brought pursuant to 42 U.S.C. § 1983. 1 We affirm in part, reverse in part and remand for further proceedings. On October 1, 1997, appellant was arrested and plac ed into a general population cell in the Jackson County, Oklahoma jai l. That evening, another inmate in the jail poked appellant in the stomach w ith a broom and accused him of “messing with” the inmate’s sister and mother. The inmate also spit on appellant and threatened to kill him. Appellant no tified the jailer on duty, who took appellant to his office to prepare a written s tatement. While in the jailer’s office, appellant told the ja iler he was afraid to go back to the general population cell because he thou ght the inmates there would jump him. The jailer did not respond but returned appellant to the cell. Appellant claims that the jailer was within earshot of the ot her inmates, while they were plotting their attack on him. Appellant lay on his bunk in the cell for about fiv e minutes before he was attacked by two cellmates. One of the inmates held his legs while the other hit-3-

him several times in the back of the head and neck. The inmates told appellant they were punishing him for being a “snitch.” About five minutes later, the inmates returned with two more cellmates and the fo ur of them jumped appellant and again beat and kicked him. About ten minutes later, the jailer returned. Appe llant told him he needed to go to the hospital. The jailer escorted appella nt out of the cell and took him to the jailer’s office. There, the jailer telephoned an unknown person, informed him that appellant had been jumped, and asked whether h e should take him to the hospital. After this telephone conversation, the j ailer told appellant that “you are still conscious, we don’t have to take you.” Appel lant’s App. at 79. The jailer gave appellant some aspirin and placed him in a dif ferent cell, but did not take him to the hospital. Appellant was released the next morning. He went t o the hospital and was treated there for contusions and strains. His phys ician, Dr. Altshuler, thereafter diagnosed him with “severe contusion to the skull w ith post-concussion syndrome” and “severe strain to the cervical, thoracic and lumbosacral spine.” Id. at 182. Appellant then brought this action, seekin g to hold Jackson County Sheriff Kenneth LeMaster liable both individually and in his official capacity as sheriff for failing to prevent the assault and for failing to respond to his serious medical needs.-4-

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). We review the district court’s grant of summary judgment de novo, applying the same standard as it applied. See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). This standard requires us to examine the record in order to determine whether any genuine issue of material fact was in d ispute; if not, we determine whether the district court correctly applied the substantive law. See id. In doing so we examine the factual record and reasonable inf erences therefrom in the light most favorable to the party opposing the motion. See id. Where the nonmovant will bear the burden of proof at trial on a disposi tive issue, however, that party must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence, as atriable issue, of an element essential to that party’s case in order to survive summary judgment. See id.
I. Liability for Failure to Protect We recognize at the outset that neither prison offi cials nor municipalities can absolutely guarantee the safety of their prisoners. See Berry v. City of Muskogee , 900 F.2d 1489, 1499 (10th Cir. 1990). They are, however, responsible2 At the time he was assaulted, appellant was not a c onvicted prisoner;

he was a pretrial detainee. Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment. See Bell v. Wolfish , 441 U.S. 520, 535 n.16 (1979). In determining whether appellant’ s rights were violated, however, we apply an analysis identical to that app lied in Eighth Amendment cases brought pursuant to § 1983. See Hare v. City of Corinth , 74 F.3d 633, 643 (5th Cir. 1996). -5- for taking reasonable measures to insure the safety of inmates. See id. ; Farmer v.
Brennan , 511 U.S. 825, 832-33 (1994). 2 This case is complicated by the fact that appellantattributes his injuries to two different forms of failure to protect him from harm. First, he argues that he was injured because his jailer placed him back in the general population cell after he had been threatened by his fellow inmates. This claim challenges an episodic act or omission of a jail official, rather than a c ondition, practice, rule or restriction at the jail. See Hare v. City of Corinth , 74 F.3d 633, 645 (5th Cir. 1996). Appellant seeks to hold Sheriff LeMaster in dividually and officially liable for his jailer’s actions on the basis of poor train ing and supervision. Second, appellant challenges his jailer’s failure t o rescue him once the assaults began. His primary argument on this point centers less on the jailer’s conduct than on constitutionally inadequate conditi ons at the jail which may have prevented the jailer from acting, such as understaf fing, lack of monitoring equipment or lack of a means by which inmates couldcontact guards. We address each of these bases of liability in turn.-6- A. Failure to train and supervise jailer Appellant alleges that his jailer’s acts and omissi ons were the result of Sheriff LeMaster’s failure to provide adequate trai ning and supervision of jail personnel. He further contends that poor training and supervision were a county policy and should be attributed to Jackson County. Appellant provided some evidence that jailers at th e county facility were poorly trained. Gordon Paige, a former jailer at t he facility, testified that he received no formal training during his employment at the jail. Moreover, state jail inspectors cited the jail twice, in December 1 996 and in April 1997, for deficiencies in training its jailers. It is not enough, however, for appellant to show th at there were general deficiencies in the county’s training program for j ailers. Rather, he must identify a specific deficiency in the county’s training prog ram closely related to his ultimate injury, and must prove that the deficiencyin training actually caused his jailer to act with deliberate indifference to his safety. See City of Canton v. Harris , 489 U.S. 378, 391 (1989). Appellant did not meetthat burden here. Appellant not only did not name his jailer as a def endant in this suit, he failed to identify him at all. That omission serio usly undermines his attempt to hold the county liable for any actions deliberatelytaken by the jailer. Appellant has presented no evidence concerning deficiencies i n training of the particular-7-

jailer involved in his case. Nor has he shown thatthe county had a uniform policy of providing its jailers with insufficient training in the areas closely related to his ultimate injury from which we might infer th at his particular jailer’s training also was insufficient. Gordon Paige admitted that the county had scheduledhim for eventual CLEET training. There is no showing that appellant ’s jailer had not received such training, or that his failure to receive it wa s the cause of appellant’s injuries.
See City of Canton , 489 U.S. at 391 (“[A]dequately trained officers occasionally make mistakes; the fact that they do says little ab out the training program or the legal basis for holding the city liable.”). The sa me weaknesses exist with regard to his claim that the jailer was poorly supervised: appellant simply has failed to tie this claim to his injuries. We therefore concl ude that the district court properly granted summary judgment to the county on this claim.

B. Inadequate conditions at jail Appellant argues, in the alternative, that his inju ries resulted from constitutionally infirm conditions at the jail. We consider first Sheriff LeMaster’s individual liability for these conditions. To surv ive summary judgment on his individual claim against Sheriff LeMaster, appellant must present factual evidence that he was “incarcerated under conditions posing a substantial risk of serious harm,” see Farmer , 511 U.S. at 834, and that the sheriff was aware o f and3 While recognizing the availability of an action aga inst jail officials

in their individual capacities for failing to provi de humane conditions of confinement, see, e.g. , Barney v. Pulsipher , 143 F.3d 1299, 1309 (10th Cir. 1998), we further recognize that the defense of qualified immunity may be available to such officials, see id. The district court did not reach the qualified im munity question. -8- disregarded an excessive risk to inmate health or s afety by failing to take reasonable measures to abate the risk, see id. at 847. 3 Having carefully reviewed the record on appeal, we conclude that appellant pr esented sufficient evidence on these points to survive summary judgment. We begin with the jail standards of the Oklahoma De partment of Health which provide, in pertinent part, as follows: 310: 670-5-3 Supervision of prisoners (a) The movement of prisoners shall be regulated. (b) Staff shall provide twenty-four (24) hour supervision of prisoners. (c) Jailer posts shall be located and staffed to mo nitor all prisoners either physically or electronically and close enough to th e living areas to respond immediately to calls for help, quell disorders and respond to emergency situations. A jailer shall be on duty at all times on each floor where prisoners are confined or the facility shall have e ither closed circuit TV, or a video camera and an intercommunication system to aid in the monitoring of the prisoners. (d) There shall be sufficient staff to perform all functions relating to security, control, custody and supervision of priso ners. The staffing plan shall provide for backup assistance for all employe es entering prisoner living areas. Appellant’s App. at 193.-9-

While these standards do not establish constitution al parameters for the reasonable measures necessary to insure inmate safe ty, they do provide persuasive authority concerning what is required. As will be seen, the record contains ample evidence from which a finder of fact could conclude that these standards were violated, that failure to adhere to them posed a su bstantial risk of harm, and that Sheriff LeMaster knew of the dangerous conditions p revalent at the Jackson County jail, but failed to take reasonable measures to insure the safety of prisoners within his care. The record discloses specific violations of jail st andards. Prior to the incident involving appellant, the State of OklahomaJail Inspection Division issued two reports, dated December 24, 1996 and Apr il 8, 1997, in which it identified violations of the standards. The report s noted deficiencies in staff and back up, training, and supervision of inmates at the jail. See Appellant’s App. at 209-13. The April 8, 1997 report specifically note d that sentenced prisoners had not been segregated from unsentenced prisoners. See id. at 213. We have previously mentioned the deposition of Gord on Paige, taken on September 10, 1997, in a separate suit against Jack son County. Paige was a jailer at the Jackson County jail from November 1996 throu gh April 1, 1997. In his testimony, Paige stated that the jail was woefully understaffed and that he was often the only jailer on duty. See id. at 217-20.-10-

There is evidence that violation of the standards p osed a substantial risk of harm to prisoners. There had been at least one pri or attack at the jail. The record contains an affidavit from Larry West, indicating t hat he spoke to Sheriff LeMaster with regard to an assault on his son at th e jail that occurred in January
1997. See id. at 214. West states that he was told the jailers could do nothing to prevent attacks at the jail, and that jail personne l told him they would assign other inmates to protect his son. See id. In his deposition testimony, appellant stated that after the attack he was placed in a cell with another, older inmate who also had been assaulted. Id. at 164. The record also contains the affidavit of Bld omero [sic] Castaned, who states that after appellant was removed from the ce ll the second time, Castaned also was attacked and beaten by cellmates. See id. at 167. Castaned states that there was no TV monitor, no guard in sight, and no way to call for help. See id. The record also contains an affidavit, with accompanying letter, of Ken
Barnes. See id. at 206-08. Barnes expressed his opinion as an exp ert in jail operations and a former Oklahoma state jail trainin g officer, that the jail was understaffed and that “the lack of jail staff is th e nexus of the assault of Mr. Lopez.” Id. at 208. Finally, Sheriff LeMaster was on notice of the dang er. The record contains a report from the jail inspection division concerni ng a suicide at the jail that4 Sheriff LeMaster’s statement that he had tried to c orrect the

deficiencies but was hindered by lack of funds coul d conceivably justify summary judgment in his favor in his individual capacity, i f it were shown that monetary restraints improperly imposed by the county frustrated his good faith efforts to correct the improper conditions. See Hale v. Tallapoosa County , 50 F.3d 1579, 1584 (11th Cir. 1995). He has not moved for summary judgment on this basis, however, and so we do not consider this basis for r elieving him from liability. -11- occurred on November 4, 1997. See id. at 223-26. This suicide occurred after appellant had been released, and so it cannot be sa id to have put the sheriff on notice of danger to appellant. Nevertheless, the report has significant probative value, because it includes an important admission b y Sheriff LeMaster. The sheriff told the investigator that he was aware of the deficiencies in staffing and surveillance at the jail and that he h ad tried to comply with correction of the deficiencies but that the county commissione rs had failed to provide adequate funding even though they were required by statute to do so. See id. at 225. 4This admission provides evidence that Sheriff LeM aster was aware of the risk of harm to inmates resulting from inadequate s upervision, and failed to take reasonable measures to prevent it. Cf. Smith v. Arkansas Dep’t of Correction , 103 F.3d 637, 646 (8th Cir. 1996) (noting acknowled gment by prison officials that additional guards were needed provided justifi cation for injunctive relief against department of corrections). The report fin ished with imperative directives from the inspector ordering the jail to install a c losed circuit television or video5 Even if Sheriff LeMaster was unaware of the specifi c risk to

appellant from his cellmates, this does not relieve him from liability. “[A] prison official [may not] escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Farmer , 511 U.S. at 843. -12- camera and intercommunication system and to hire additional staff. See Appellant’s App. at 226. The district court did not discuss any of this evid ence in its decision, with the exception of the jail inspection reports. The district court ignored appellant’s argument that the sheriff was liable for failing to provide any means for him to call for help and for failing to provide adequate s taffing and supervision of the other inmates while he was being attacked. See id. at 125-28. We conclude that appellant supplied sufficient evidence to survive s ummary judgment on his claim against Sheriff LeMaster for failure to protect himfrom assault by his fellow inmates. 5 We turn next to appellant’s assertion of county liability for failure to protect him from the assault. Appellant’s suit aga inst Sheriff LeMaster in his official capacity as sheriff is the equivalent of a suit against Jackson County. See Myers v. Oklahoma County Bd. of County Comm’rs , 151 F.3d 1313, 1316 n.2 (10th Cir. 1998). “The County may be held liable u nder [] § 1983 only for its-13-

own unconstitutional or illegal policies and not fo r the tortious acts of its employees.” Barney , 143 F.3d at 1307. The district court determined that appellant failed to establish causation sufficient to hold the county liable for conditions at the jail. The district court relied on the principle that to hold the county lia ble, a plaintiff must demonstrate that its policy was the moving force behind the inj ury alleged; that is, that the county took official action with a requisite degree of culpability and there is a direct causal link between the action and deprivation of federal rights. See Board of County Comm’rs v. Brown , 520 U.S. 397, 404 (1997). While these rigid standards of proof clearly apply to appellant’s claim that an improperly-trained jailer returned him to a cell with inmates who attacked him, they do not govern his claim that the county mainta ined a policy of understaffing its jails which resulted in his injury. If appellant’s summary judgment materials demonstrate the existence of an official municipal policy which itself violated federal law, this will satisfy his burden as to cul pability, and the heightened standard applicable to causation for unauthorized a ctions by a municipal employee will not apply:

[P]roof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintif f of a federally protected right necessarily establishes that the mu nicipality acted culpably. Similarly, the conclusion that the actio n taken or directed by the municipality or its authorized decisionmakeritself violates-14-

federal law will also determine that the municipal action was the moving force behind the injury of which the plainti ff complains. Id. at 405. It remains for appellant to show that the county o r its authorized decisionmaker “intentionally deprived [him] of a fe derally protected right” through its unconstitutional policy. Id. Appellant has made a sufficient showing, for purposes of summary judgment, that the county m aintains an unconstitutional policy of understaffing its jail and of failing to monitor inmates. He must also show, however, that this policy is maintained with the requisite degree of culpable intent. See id. The requisite degree of intent in this case is, o f course, deliberate indifference to inmate health or safety. See Farmer , 511 U.S. at 834. Appellant has shown the requisite deliberate indiff erence in this case in two different ways. First, there is evidence that the county’s legislative body was itself deliberately indifferent to conditions at th e jail. As mentioned, Sheriff LeMaster told a jail investigator that the county c ommissioners failed to provide funding for correction of deficiencies at the jail likely to lead to assaults against inmates even though such funding was required by th e Oklahoma statutes. The sheriff did not specifically state that he requeste d such funds from the commissioners, or that he notified them that funds were needed; however, these are certainly reasonable inferences which may be dr awn from his statement to the jail inspector.-15-

Alternatively, the county may be liable on the basi s that Sheriff LeMaster is a final policymaker with regard to its jail, such t hat his actions “may fairly be said to be those of the municipality.” See Brown , 520 U.S. at 404. Under Oklahoma law, a county sheriff is in charge of the jail and the prisoners therein. See Okla. Stat. tit. 19, § 513; tit. 57, § 47. There is evid ence sufficient to survive summary judgment showing that Sheriff LeMaster’s failure to provide adequate staffing and monitoring of inmates constitutes a policy attr ibutable to the county, and that he was deliberately indifferent to conditions at th e jail. In sum, material issues of fact remain concerning w hether the county had a policy of providing insufficient monitoring and sup ervision of inmates and insufficient staffing, held with deliberate indiffe rence, resulting in unconstitutionally inadequate conditions of confine ment, which policy was the moving force, as a matter of law, behind the attackon appellant. We therefore reverse summary judgment on appellant’s failure to protect claim against Sheriff LeMaster in his official capacity.

II. Indifference to Medical Needs Prison officials violate the Eighth Amendment (or, in this case, the Due Process Clause), when they are deliberately indiffe rent to an inmate’s “serious medical needs.” Estelle v. Gamble , 429 U.S. 97, 104 (1976). The district court-16-

did not reach the issue of whether the county was d eliberately indifferent to appellant’s condition after the assault because it concluded that he did not have serious medical needs. The district court concluded that appellant suffere d from only “contusions and strains” resulting from the attack. Appellant’s App. at 15. This conclusion somewhat understates the record. Doctor Altshuler, who saw appellant on at least two occasions after the attack, stated that he had “severe contusion to the skull with post-concussion syndrome,” “contusion strain i njuries to the left rib and legs,” and “severe strain to the cervical, thoracic and lumbosacral spine.” Id. at 182. The doctor who saw appellant the day after the assault diagnosed him only with facial contusions, neck strain, contusions to the left chest, and contusions to the left thigh. See id. at 93. He provided appellant with a “head injury sheet,” but did not note a concussion. See id. Material issues of fact remain concerning how badly appellant was hurt; thus, appellant has s atisfied his summary judgment burden concerning his “serious medical needs.” We turn to the evidence of deliberate indifference . The jailer refused to take appellant to the hospital after the beating, e ven though appellant requested to be taken there, because appellant was not unconscio us. Appellant was not seen or treated by a doctor. He was given aspirin instead.-17-

There was no showing that Sheriff LeMaster was pres ent after the attack or ever even saw appellant. Appellant testified, howe ver, that the jailer who tended to him after the attack called an unknown person, w ho told the jailer not to take appellant to the hospital because he was still cons cious. The district court reasoned that this unknown person may have been LeM aster. Issues of fact thus remain concerning whether LeMaster was “aware of fa cts from which the inference could be drawn that a substantial risk of serious harm exist[ed]” and also whether he drew that inference. See Farmer , 511 U.S. at 837, and summary judgment is thus improper. The district court did not address whether the county, through its decisionmaker, Sheriff LeMaster, was deliberately i ndifferent to appellant’s need for medical treatment. We decline to decide this i ssue, to which the district court may give further consideration on remand. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED in part, REVERSED in part, and REMANDED for further consideration in light of this opinion.