## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 97-3969/98-1126

___________ John Doe, Jr., by and through * his next friend John Doe, Sr., * * Appellee, * * v. * * Washington County, * * Appellant, * * Kenneth McKee, Individually and * in his official capacity as Sheriff * Appeals from the United States of Washington County, Arkansas; * District Court for the Bill Wolber, Individually and in * Western District of Arkansas. his official capacity as a deputy * with the Washington County * Sheriff's Office and as a jailer for * the Washington County Detention * Facility; Timothy Jacobs, * Individually and in his official * capacity as a deputy with the * Washington County Sheriff's * Office and as a jailer for the * Washington County Detention * Facility, * * Defendants. *

___________The H onorable Michael J. Melloy, Chief United States District Judge for th e 1 Northern District of Iowa, sitting by designation. -2- Submitted: May 12, 1998 Filed: July 30, 1998

___________ Before BEAM and MURPHY, Circuit Judges, and MELLOY, District Judge, 1

___________ BEAM, Circuit Judge. John Doe, Jr., a juvenile, sued Washington County, Arkansas, after he wa s beat en, raped, and tortured by other juvenile detainees while being held in th e Washington County Detention Center. He brought this action pursuant to 42 U.S.C. § 1983, alleging violatio ns of the Fourteenth Amendment. The jury returned a verdict against the county, which appeals. We affirm.
I. BACKGROUND

In 1996, when he was fifteen years old, Doe was detained pending trial at th e Washington County Detention Center (the jail). He was placed with f our other juvenile detainees in cell 239, a sho rt-term holding cell of about 200 square feet. He remained in that cell, for the most part, from April 26 to May 16. On or about May 11, a "towelpopping" fight among the cellmates turned dangerously rough. Doe ba nged on the door to summon help. A guard responded and escorted him to a different cell. However, approximately one hour later, despite Doe's protests, another guard moved him back into cell 239, telling the other detainees that Doe was a "snitch," and that they should "handle it."
Over the ensuing four- or five-day period, Doe's cellmates subjected him t o unrelenting abuse, torture, and humiliation. Among other things, they raped him and-3-

beat him with weapons such as a hand-made "club" and a plastic milk crate. The y squeezed o range juice in his eyes, poured salt in his wounds, and cut his arm an d forced him to suck the blood from the laceration.

Doe sued Washington County and several county officials, alleging, inter alia, that the failure to protect him from these assaults violated his right to substantive due process secured by the Fourteenth Amendment. The individual defendants, Kenneth McKee, Bill Wolber, and Timothy Jacobs, were ultimately dismissed without p rejudice. The c ase proceeded to trial against the county and Sheriff McKee in his officia l capa city. A jury found that the county was liable for Doe's injuries, but awarded n o damages. The district court granted a new trial on the issue of damages, an d the second jury awarded

$8,000 in compensatory damages. The district court also awarded Doe attorneys' fees and costs in the amount of $34,824.92. The county appeals.

II. DISCUSSION
A. Liability of Washington County
The jury found that by failing to protect him from assault at the hands of other de tainees, the county violated Doe's constitutional rights. The county argues that the evid ence was insufficient as a matter of law to support the jury's verdict of liability

. We rev iew a claim of insufficiency of the evidence to determine whether, viewing all the evidence in

the light most favorable to the verdict, no reasonable juror could have returnedthat verdict. See Newhouse v. McCormick & Co., Inc. , 110 F.3d 635, 63 9 (8th Cir. 1997).
Al thoughit is not entirely coherent, the county's argument on appeal seems t o be that the evidence would not support a finding of individual liability against Sheriff McKee or other municipal personnel. This argument is irrelevant, because the jury-4-

re ndered a verdict against the county, not against any jail officials or guard s indiv idually. A governmental entity can be liable under section 1983 even though no government official was found perso nally liable. See Parrish v. Luckie , 963 F.2d 201, 207 (8th Cir. 1992) (citing Pembaur v. City of Cincinnati , 475 U.S. 469, 484-8 5 (1986)). Municipal liability under section 1983 is appropriate in cases where a municip al "policy" or "custom" causes the constitutional violation. See Monell v

. Depart ment

of Soc. Servs. , 436 U.S. 658, 694 (1978). We are therefore concerne d withwhether the county's acknowledged policies regarding the housing of juvenil e detainees in the county jail can properly be found to have ca used any violation of Doe's constitutional rights. At issue here is Doe's Fourteenth Amendment right to due process o f law. When these incidents occurred, Doe was a pretrial detainee and no t a prisoner being punished for having committed a crime. The government cannot inflict punishment, a s contem plated by the Eighth Amendment, "'until after it has secured a forma l adju dication of guilt in accordance with due process of law.'" City of Revere v

. Ma ssachusetts Gen. Hosp. , 463 U.S. 239, 244 (1983) (quoting Ingraham v. Wright , 430 U.S. 651, 671-72 n.40 (1977)). Therefore, Doe's failure to protect claim arise s under the Due Process Clause of the Fourteenth Amendment and not the Cruel an d Unusual Punishment Clause of the Eighth Amendment. See A.J. v. Kierst , 56 F .3d 849, 854 (8th Cir. 1995) (citing Bell v. Wolfish , 441 U.S. 520, 535 n.16 (1979)). Th e Supreme Court has not yet defined the contours of the state's due process obligation to pretrial detainees. This case does not require us to do so either, because the du e process rights of a pretrial detainee are at least as great as the Eig hth Amendment rights of a convicted prisoner. See City of Revere , 463 U.S. at 244.

Inorder to make out an Eighth Amendment claim for failure to prevent harm frominma te attack, a prisoner must prove that government or its officials wer e deliberately indifferent to a substantial risk of serious harm. See Farmer v. Brennan , 511 U.S. 825, 834 (1994). The county contends that this would necessarily entail aWe are mindful of the court's statement in Farmer t hat "considerable conceptual 2 difficulty would attend any search for the subjective state of mind of a governmental entity, as distinct from that of a governmental official." Farmer , 511 U.S. at 841. The statement did not, however, directly address the relevant question. -5- showing tha t county officials were aware of a risk to Doe, as distinct from othe r juvenil e detainees. The county is mistaken. For purposes of the Eighth Amendment, "it does not matter . . . whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk." Id. at 843. Doe did not cl aim that he was more likely to be assaulted than any other juvenil e detainee at the jail, but that is not fatal to his constitutional claim. Reasonable jurors could properly have concluded that all juveniles in Doe's situation faced a substantial risk of serious harm.
The county also argues that no reasonable juror could have found subjectiv e knowledge of the risk of harm, as is required to make out an Eighth Amendment claim against an individual defendant. See id. at 837. The county, however, is not a n indiv idual defendant, and the Court has not directly addressed the question of ho w Monell ' s standard for municipal liability meshes with Farmer 's requirement o f
su bjective knowledge. Clearly, this is not an appropriate case for us to decide tha t 2 que stion. Whatever the standard may be, the evidence nonetheless adequatel y establishes subjective knowledge on the part of Sheriff McKee, who, in his ow n testim ony, acknowledged the dangers of housing five juveniles together in a 200

- square-foot, short-term holding cell for months at a time. Doe presented evidence that du ring his detention, the county jail was extremely overcrowded. Guards a

pparently had to return Doe to cell 239 only one hour after he had requ ested their protection. When Doe complained that he was afraid to go back, he was told that the space was needed to hold newly arriving females. The jury may-6-

hav e concluded that the overcrowded conditions contributed to Doe's inability t o remain safely away from his attackers in cell 239 on the day of the towel fight.
Furthermore, the evidence showed that the county had a policy of acceptin g additional prisoners transferred from state prison, known as "309 trusties." Thes e prisoners se rved food, washed dishes, performed custodial services, and the like, and the county was paid by the state to house them in the county facility. The 309 trusty program saved the county an estimated $400,000 in 1996. S heriff McKee testified that the juveniles probably should have been locked down in individual cells to "protect[] [them] from each other," but that due to the overcrowding, they were not. According to McKee, "You could fill the place with preachers and you'd have problems if you get them in there stacked heavy enough like we're doing."
The jury could easily have found that the trusty program contributed to th e severe overcr owding, and that Sheriff McKee, as a county policy-maker, knew of the risk to which juvenile detainees were t hereby subjected, but that he did not reasonably respo ndwith corrective action. Our review of the record satisfies us that there wa s more than enough evidence to convince a reasonable juror of a constitutional violation.
B. Inconsistency of the Verdict The jury found liability on the part of the county, but not on the part of the sheriff in his official capacity. The county correctly asserts that the jury's verdict i s inconsistent in this respect. A suit against a county official in his official capacity is the equivalent o f a suit against the county itself. See Parrish , 963 F.2d at 203 n.1 (citing Kentucky v. Graham , 473 U.S. 159, 166 (1985)). The official is distinct only in hi s individual capacity. Therefore, the county claims the finding that the sheriff was not liable in his official capacity somehow exonerates the county by implication. We do not agree.-7-

Naming both the sheriff and the county as defendants was merely duplicative

. The jury found that the county was liable, and, as explained in Part A above, there was overwhelming evidenc e to support that verdict. The inconsistency is likely a result of the jury's mistaken belief that Sheriff McKee was a defendant in his indi vidual capacity. After re viewing the record, it is clear to us why the jury was confused about th e sheriff's status as a defendant in this case. Throughout the trial, defense lawyers behaved as tho ugh they misunderstood the "official capacity" designatio n. In closing, for example, defense counsel argued to the jury, "for you to find against Sheriff McKee, you must find that he kne w that [Doe] was about to be hit, struck, raped or otherwise attacke d." The defense's entire trial strategy followed along the same lines. If the jury was misled, it was primarily the result o f defense counsel's conduct. We will not allow the county to reap any benefit from an inconsistency it was instrumental in creating. See Parrish , 963 F.2d at 207.

Inany event, the county waived the claim of inconsistent verdicts by failing to object to the inconsistency before judgment was entered. "If a party feels that a jury verdi ctis inconsistent, it must object to the asserted inconsistency and move fo r resubmission of the inconsistent verdict before the jury is disc harged or the party's right to seek a new trial is waived." Id. Therefore, we reject the county's claim regarding the inconsistent verdicts.
C. Prison Litigation Reform Act
The count y contends that the district court erred in concluding that certai n pr ovisions of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, did no t apply to li mit the award of attorneys' fees to Doe. These provisions apply to a "p risoner confined in any jail, prison, or other correctional facility." 42 U.S.C. § 1997e(a). The statute defines "pr isoner" as "any person incarcerated or detained." 42 U.S.C. § 1997e(h). When he filed this complaint, Doe was neither incarcerated nor-8-

detained in any jail, prison, or correctional facility. The PLRA unambiguously applies to only those suits filed by prisoners. Doe was not a prisoner, and the PLRA therefore does not apply to his case.

We are no t persuaded by the county's argument that the PLRA should apply to all suits that arise in prison. The policy behind the PLRA was to deter suits by inmates who are very quick to litigate "simply because they have little to lose and everything to gain." 141 Con. Rec. S7524 (daily ed. May 25, 1995) (statement of Sen. Dole). The PLRA wa s designed to discourage the initiation of litigation by a certain class o f individuals—pr

isoners—that is otherwise motivated to bring "frivolous complaints as
a means of gaining a short sabbatical in the nearest Federal courthouse." 141 Con

. Rec. S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl). Congress therefore fully inten ded to distinguish between those who are "prisoners" when they decide whether to file a complaint and those who are not. Because Doe was not a prisoner when he filed this case, we find that the provisions of the PLRA are inapplicable. We have reviewed the other issues raised by the c ounty, including the claim that the distr ict court erred in granting a new trial on damages, and we find them to b e without merit. Accordingly, we affirm the district court.
III. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.