United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2573

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Melissa Lazarus, *

*

Appellant, *

*

v. *

*

The City of Dumas, Arkansas; Mayor *

Clay Oldner; Everett Cox, Chief of * Appeal from the United States

the Dumas Police Department; Elijah * District Court for the Eastern

Finch, Member of the Dumas Police * District of Arkansas.

Department; McClinton Cobb, Trustee *

for the Dumas Police Department; * [UNPUBLISHED]

P. C. Pickett; Raymond Riggins; *

Robert Milner; James Jackson; Diane *

Fisher; Roy Dalton; Dewayne Snyder; *

Spencer Berry, *

*

Appellees. *

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Submitted: February 14, 2005

Filed: February 22, 2005

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Before MELLOY, HEANEY, and FAGG, Circuit Judges.

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PER CURIAM.

Melissa Lazarus was attacked and raped by a jail trustee and jailer while she

was incarcerated at the Dumas, Arkansas jail. Both rapists were convicted and
*

The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas. 

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sentenced. Lazarus brought this civil rights action against the City of Dumas and

various city officials who were not involved in the attacks. The district court*

 granted

summary judgment in favor of the defendants concluding the city officials were

entitled to qualified immunity because they had no individual involvement and there

was insufficient evidence of a pattern and practice for municipal liability. 

To establish municipal liability under 42 U.S.C. § 1983, Smith had to show her

constitutional rights were violated by an “action pursuant to official municipal

policy” or misconduct so pervasive among nonpolicymaking employees of the

municipality “as to constitute a ‘custom or usage’ with the force of law.” Ware v.

Jackson County, 150 F.3d 873, 880 (8th Cir. 1998). A custom or usage is shown by

(1) the existence of a continuing, widespread, persistent pattern or unconstitutional

misconduct by the governmental entity’s employees, (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) proof that the custom

was the moving force behind the constitutional violation. Id. The district court held

Smith failed to raise a genuine issue of material fact on any of the three requirements.

Lazarus argues the district court should have considered whether a single

incident of a constitutional violation is offensive enough to establish a municipal

custom, citing Rymer v. Davis, 775 F.2d 756 (6th Cir. 1985). According to the

Supreme Court, however, “[p]roof of a single incident of unconstitutional activity is

not sufficient to impose [municipal] liability . . . unless proof of the incident includes

proof that it was caused by an existing, unconstitutional municipal policy.” City of

Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Here, there is no evidence

that a municipal policy caused the assaults. Indeed, the City had policies in place to

protect inmate safety, and Lazarus does not argue otherwise. Further, Lazarus does
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not contest the City’s assertion that the attackers were properly investigated and

trained before assuming duties at the City jail, and there is no genuine issue of

material fact concerning any failure to supervise. There was no evidence of earlier

complaints of sexual misconduct, and Lazarus’s complaint was promptly investigated

and her attackers were punished. See Ware, 150 F.3d at 881. 

Having carefully reviewed the record, the briefs, and the applicable law, we

conclude the district court properly granted summary judgment in this case. We thus

affirm the district court. 

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