United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3717

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*

Joseph L. Spencer, *

*

Plaintiff-Appellant, *

*

v. *

*

Knapheide Truck Equipment Co.; *

*

Defendant, *

*

The Board of Police Commissioners * Appeal from the United States District

of the Kansas City, Missouri Police * Court for the Western District of 

Department, through it members: * Missouri.

*

Dr. Stacy Daniels, in her official *

capacity as Vice President, Board *

of Police Commissioners; Jeffrey *

J. Simon, in his official capacity as *

Treasurer, Board of Police *

Commissioners; Joseph J. Mulvihill, *

in his official capacity as a Member, *

Board of Police Commissioners; *

Emmanuel Cleaver, in his official *

capacity as ex officio member, Board *

of Police Commissioners and Mayor, *

City of Kansas City, Missouri; *

*

Defendants - Appellees, *

*
1The Honorable Richard G. Kopf, District Court Judge for the District of

Nebraska, sitting by designation.

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Knapheide Manufacturing Company, *

*

Defendant. *

 *

*

Knapheide Truck Equipment Co., *

Knapheide Manufacturing Company, *

*

Third-Party Plaintiffs. *

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Submitted: April 20, 1999.

Filed: July 26, 1999

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Before BEAM and HANSEN, Circuit Judges, and KOPF,1 District Judge.

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BEAM, Circuit Judge.

Joseph Spencer appeals from the district court's adverse grant of summary

judgment in his section 1983 suit for personal injuries allegedly sustained as a result of

his arrest and subsequent transportation to a police facility in a patrol wagon. For the

reasons discussed below, we affirm.

I. BACKGROUND

 On January 30, 1992, while on patrol wagon duty, Officer Trussler of the

Kansas City, Missouri, Police Department, responded to a call to transport Spencer to
2Officer Trussler contends that he twice instructed Spencer to sit on the floor of

the police wagon, but that plaintiff did not comply. Spencer, however, claims that he

was never told to sit on the floor.

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the police station. Spencer had been arrested for simple assault. Upon arriving at the

scene, Officer Trussler handcuffed an intoxicated Spencer with his hands behind his

back and escorted him to the rear of a patrol wagon and into the prisoner compartment.

Once inside the compartment, Spencer sat on one of two steel benches which run

lengthwise along each side of the compartment's interior.2 There were no seatbelts or

other safety restraint devices installed in the compartment. Spencer claims that during

the trip to the police station, he had difficulty maintaining his balance on the bench and

that he was tossed around as Officer Trussler made turns, stops, and starts. At some

point during the ride, Spencer claims he was thrown forward into the bulkhead of the

compartment causing severe injuries and rendering him a quadriplegic. 

Spencer filed an eleven-count complaint in federal district court raising various

claims against members of the Board of Police Commissioners of Kansas City,

Missouri (Board), in their official capacities, and Knapheide Truck Equipment

Company and Knapheide Manufacturing Company (Knapheide), the manufacturer and

seller of the patrol wagon. The claims against Knapheide were either dismissed or

settled and are not the subject matter of this appeal. One of the claims asserted against

the Board was also settled, and the Board moved for summary judgment on the

remaining allegations. 

The claims assert a section 1983 cause of action for alleged violations of

Spencer's Fifth and Fourteenth Amendment rights. Specifically, Spencer asserts that:

(1) the Board maintained an official policy of purchasing and using patrol wagons that

were inherently unsafe; (2) the Board had a policy of transporting intoxicated

individuals with their hands handcuffed behind their back in these patrol wagons, even

after it had notice that such policy was resulting in injuries; and (3) these policies
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constituted a form of punishment for pretrial detainees. The district court granted

summary judgment in favor of the Board. We affirm.

II. DISCUSSION

 We review a grant of summary judgment de novo. See Liebe v. Norton, 157

F.3d 574, 578 (8th Cir. 1998). Summary judgment is appropriate if the evidence,

viewed in the light most favorable to the nonmoving party, shows that no genuine issue

of material fact exists and the moving party is entitled to judgment as a matter of law.

See Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998). Our analysis begins with

the recognition that because Spencer's section 1983 suit is against the members of the

Board in their official capacities, it must be treated as a suit against the municipality.

See Liebe, 157 F.3d at 578. A plaintiff may establish municipal liability under section

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.'" Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998)

(quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)).

The district court stated that for liability to attach, Spencer must also establish

that the Board was "deliberately indifferent" to or tacitly authorized such misconduct

after notice of the misconduct. The court then went on to find that: (1) Spencer failed

to establish evidence of a pattern of constitutional violations and (2) even if he had, he

failed to demonstrate that the Board was deliberately indifferent to the safety of the

individuals transported in the patrol wagons. The district court's application of the

"deliberate indifference" standard forms the gravamen of Spencer's argument on appeal.

Specifically, Spencer claims that the district court erred in analyzing his claims under

an Eighth Amendment subjective deliberate indifference standard instead of an

objective deliberate indifference test.
3Although Spencer states at one point in his brief that his status at the time in

question is more accurately characterized as that of an arrestee rather than a pretrial

detainee, both his complaint and the district court's order frame the discussion in terms

of the rights of pretrial detainees. As it does not impact our analysis of his claim, we

do the same. 

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"'[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.'" County of Sacramento v. Lewis,

118 S. Ct. 1708, 1719 (1998) (quoting DeShaney v. Winnebago County Dep't of Soc.

Servs., 489 U.S. 189, 199-200 (1989)). Thus, a prisoner's Eighth Amendment rights

are violated when government entities or officials are deliberately indifferent to a

prisoner's medical needs, see Estelle v. Gamble, 429 U.S. 97, 104 (1976), or to his or

her safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). In this case, however,

because Spencer was a pretrial detainee3 his claims are properly analyzed under the due

process clause of the Fourteenth Amendment rather than the Eighth Amendment. See

Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993). The question before us then is

whether we analyze the government's actions or inactions in such cases under the

Eighth Amendment "deliberate indifference" standard or some other, less stringent,

exercise. 

Spencer concedes that deliberate indifference is the correct standard to apply in

this case. However, he contends that the term has different meanings depending on the

context in which it is being used. He argues that the district court erred in applying the

subjective "deliberate indifference" standard used in Eighth Amendment cases in this

pretrial detainee case alleging due process violations. That standard requires a plaintiff

alleging deliberate indifference to prove that the official both knew of and disregarded

an excessive risk to health or safety. See Farmer, 511 U.S. at 837. Instead, Spencer

argues, the district court should have analyzed his claims under an objective deliberate

indifference standard. Under such a standard, a municipality is liable for maintaining
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a policy in which an inadequacy is "so obvious, and the inadequacy so likely to result

in the violation of constitutional rights, that the policymakers of the city can reasonably

be said to have been deliberately indifferent." City of Canton v. Harris, 489 U.S. 378,

390 (1989); see also Farmer, 511 U.S. at 840-41. 

The standard to be applied in assessing a pretrial detainee's claim of due process

violations, such as this one, is not entirely clear. The Supreme Court has held that

pretrial detainees are entitled under the Fourteenth Amendment to "at least as great"

protection as that afforded convicted prisoners under the Eighth Amendment. City of

Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). This court has yet to

settle on a clearly binding standard. See Whitnack v. Douglas County, 16 F.3d 954,

957 (8th Cir. 1994). Although we have suggested, in dicta, in cases dealing with

pretrial detainees' claims of inadequate medical care, that a more stringent standard

than deliberate indifference would be appropriate, no specific standard has yet been

established. See Johnson-El v. Schoemehl, 878 F.2d 1043, 1055 n.8 (8th Cir. 1989);

Davis, 992 F.2d at 152. 

However, we do not think that the facts of this case call for a determination of

this issue, for even if we were to apply an objective deliberate indifference standard,

we would still find that Spencer has failed to state a due process violation. As the

district court correctly noted, deliberate indifference is a difficult standard to meet. See

Liebe, 157 F.3d at 577. Regardless of whether the term is framed as a subjective or

objective test, the alleged deprivation must still be "sufficiently serious" and "pose a

substantial risk of serious harm." Farmer, 511 U.S. at 834; see also Liebe, 157 F.3d

at 577. 

Thus, even using an objective standard, we do not think that the Board's

purchase of patrol wagons without safety restraints nor its manner of transporting

individuals in these wagons were policies that obviously presented a "substantial risk

of serious harm." This is particularly true in light of the fact that, at the time of
4The instructions state in pertinent part that:

Officers operating the patrol wagon/van will:

. . .

(3) Advise prisoners to use caution when entering the

wagon.

(4) Advise prisoners to sit at the front of the wagon or on

the floor.

(5) Place on the floor of the wagon any prisoner whose

physical condition would not permit them to protect

themselves from falling or being thrown against the

sides of the wagon.

(6) Drive in such a manner as to not injure prisoners.

Kansas City, Missouri Police Department Procedural Instruction, Annex E-Handcuffing

and Transportation of Prisoners (1991). 

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Spencer's arrest, the Kansas City, Missouri, Police Department had guidelines in place

which instructed its officers to exercise caution when transporting individuals in the

patrol wagon.4 Though these guidelines may not have been adequate to prevent

injuries, their failures, if any, constitute negligence at most. 

Spencer claims that the Board's deliberate indifference is also illustrated by the

fact that prior to his arrest, the Board had notice, in the form of citizen complaints filed

with the Board's Office of Citizen Complaints, that injuries were occurring to

individuals during transport in the patrol wagons. The record shows that, with the

exception of one detainee who was taken to the hospital, the complaints refer to minor

injuries or allegations of being tossed about the compartment without any resulting

injuries. In short, we find that the complaints do not establish that the Board was

deliberately indifferent to conditions that posed a substantial risk of serious harm.
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Finally, we reject Spencer's claim that the Board's policies constituted a form of

punishment for pretrial detainees. When a policy lacks an express intent to punish, as

this one does, we may infer such an intent if the policy is either unrelated to a

legitimate penological goal or excessive in relation to that goal. See Haslar v.

Megerman, 104 F.3d 178, 180 (8th Cir. 1997). The Board's decision to use patrol

wagons without seatbelts was based on its concern that individuals transported in the

wagon, even those who were handcuffed, could use the seatbelt as a weapon to harm

an officer, other passengers being transported in the wagon, or even themselves. Such

a policy is related to the legitimate penological goal of transporting individuals to police

facilities without harm to officers or passengers. Nor can we infer an intent to punish

from the Board's decision not to install any other forms of safety devices or padding in

the wagon, especially in light of the Board's guidelines cautioning officers to exercise

care in the transport of such individuals and the paucity of complaints of serious harm

occurring during such transport.

Although we sympathize with Mr. Spencer's condition and regret the unfortunate

circumstances which led to his injury, we do not think that these facts rise to the level

of a constitutional deprivation.

III. CONCLUSION

For the foregoing reasons, the decision of the district court is affirmed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.