U.S. District Judge Sam Sparks Summary Judgement

TINA WISDOM, Plaintiff
LLANO COUNTY, TEXAS, et al. Defendants

Be it remembered that on the 18th day of September 1998, the Court called the styled cause for docket call. At docket call, the parties argued the pending motions for summary judgment and particularly Defendant Ligon's Motion for Summary Judgment [#31], Defendant Llano County's Motion for Summary Judgment [#76], and Defendants Overstreet, Stewart and Garrett's Motion for Summary Judgment based on Qualified Immunity [#45]. After oral arguments, the Court denied Llano County's Motion for Summary Judgment from the bench and granted summary judgment to all individual defendants in their individual capacities other than Defendant Garrett. The Court gave the plaintiff until 3:00 p.m. of the day of docket call to file a letter identifying all evidence proving subjective deliberate indifference on the part of Defendant Garrett. After receiving the letter, the Court herein determines that summary judgment should be granted to Garrett on all claims against him in his individual capacity due to qualified immunity. The Court enters the following written opinion and orders confirming this ruling and all orders announced orally in open court.

I. Background
A. Facts

As discussed below, the summary judgment evidence is construed in a light most favorable to the plaintiff as the nonmoving party. See International Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 112 S. Ct. 939 (1992). The plaintiff, Tina Wisdom, was incarcerated in the Llano County Jail ("LCJ") on September 18, 1997, for an alleged parole violation. The plaintiff had been incarcerated in LCJ on previous occasions and was never assaulted and never reported any problems to LCJ or its jailers. After being incarcerated September 18, 1997, the plaintiff states that LCJ inmate trustee Johnny Pesina made unwelcome sexual advances and kissed the plaintiff, and the plaintiff rebuffed those advances. The plaintiff did not report Pesina's advances to any jailers. In the early morning hours of September 23, 1997, Pesina sexually assaulted the plaintiff. The plaintiff saw no jailers check the women's cell during the night of the rape or the early morning hours.

Trustees at LCJ are inmates who are given responsibility to perform certain functions such as preparing food, delivering food and drinks to inmates, washing laundry, cleaning floors and walls, taking out trash, and other minor errands. As of September 23, 1997, trustees were never locked in their cells and had full access to the kitchen, in which there were many utensils including several knives of varying sizes. Trustees were permitted to roam throughout most areas of the jail, which occupies the third floor of the building in which it is located. Trustees had access to keys to the "bean holes", miniature doors in the cell doors, through which inmates can be given food and drinks. Trustees served food and drinks to female inmates, and trustees were often unsupervised at that time and when performing tasks such as mopping and doing laundry near the women's cell.

At the time Pesina was appointed a trustee, Pesina had been indicted on two counts of indecency with a child,(1) and Pesina had a criminal history that included eight years of incarceration for armed robbbery and convictions for DWI and drug offenses.
(1) Pesina is currently serving a 40-year sentence in Huntsville after being convicted on those charges.
Pesina was appointed a trustee by LCJ's Chief Jailer, Melvin Lawson, who was aware of Pesina's criminal history. Llano County Sheriff Garrett had the authority to override that decision, but did not. In his affidavit, Garrett states, "While I would not have selected Pesina to hold the position of trustee, I did not know of anything in his criminal background or in his actions as an inmate or trustee that indicated he represented a risk of any kind to inmates or jailers in the [LCJ]." Garrett knew of Pesina's criminal history at that time.

The plaintiff has offered several affidavits of former female inmates of LCJ stating Pesina sexually harassed women in the past at LCJ. Specifically, when Pesina brought food or blankets to female inmates, he sometimes asked for "titties" or "ass" in return. He also displayed his erect penis to female inmates on numerous occasions. Pesina had "consensual" (2) sex at least six times with one inmate in her cell, several times while her cell mate was present. Pesina would also watch women taking showers.
(2) A plaintiff's expert suggests perhaps the sex was not really consensual because of quid pro quo- sex for food, blankets, or other favors.

It is apparent from the evidence Pesina was not closely supervised by the jailers. Garrett admits Pesina was not properly supervised, and he issued a written reprimand regarding this lack of supervision to Lawson after September 23, 1997. It is in dispute how much the jailers and the sheriff knew prior to the alleged assault about Pesina's antics and access to female inmates. Corrections consultant Steve Martin in his affidavit says, "a jail officer is aware of a substantial risk of harm when the official has knowledge of the inmate trusty's background of sexual deviance in combination with knowledge that the trusty has unsupervised access to female inmates." (3)
(3) This is of dubious value as summary judgment evidence, but it is a statement of common sense.

The plaintiff said the defendants "had to know" Pesina was "back there", in the inmates' recreation room and by the women's cells. Jailers knew Pesina delivered food and drink to female inmates, and the jailers and Lawson knew it was possible for a trustee to take food to women in the inmates' recreation room unsupervised. Inmate trustee William Alexander told Overstreet or Stewart that Pesina "had access to" the women's cell. Both Overstreet and Stewart deny this alleged conversation took place, and Alexander believed the jailer he told did not think Pesina could open the cell door without keys. Lawson was aware Pesina had once gone outside under the guise of "taking out trash" to put a note on a woman's car. Rhonda Rhyne heard Overstreet and Stewart tell Pesina to check on her when she was alone in the recreation room. (4)
(4) When this happened, Pesina put his hands on Rhyne's shoulders without her consent.

The jailers themselves undertook some questionable practices in LCJ. For example, jailers and inmates would watch X-rated videos together. However, compared to the other jailers, Holland Ligon stood above the rest as an unprofessional jailer. Ligon is the grandson of Gale Ligon, the former Llano County Sheriff who hired Garrett as a deputy sheriff. The hiring committee of Garrett, Lawson, and John Keith gave Ligon his position over the dissent of Lawson, who thought Ligon was "immature" and "not jailer material". Once hired, Ligon proved Lawson correct.

According to the record, taken in the light most favorable to the plaintiff, Ligon solicited inmate Kathy Maynard for sex, and Ligon knew Pesina was having consensual sex with "Linda", Maynard's cell mate. Ligon left the jail unattended on at least two occasions. Lawson was made aware well in advance of the alleged sexual assault that Ligon left the jail unattended, was negligent in doing his paperwork (including head count and suicide watch paperwork), was overly friendly with inmates, and threw a barbecue party for inmates. Ligon allegedly arranged for inmates to threaten other male inmates with anal rape. Jailer Pickett told Lawson that Ligon arrranged for inmates to dress up as DEA agents and threaten to harm an inmate and his family. (5)
(5) For the staged drug agent incident, Ligon was given a verbal reprimand.
Mr. Jody Rhyne told Ligon that Pesina had watched Rhyne's wife taking a shower and asked Ligon to make Pesina to cease such conduct, but Ligon said, "Tell Johnny yourself." (6)
(6) Ligon objects to this evidence, asserting Rhyne does not state in his affidavit when this exchange with Ligon allegedly occurred. However, that objection goes to the weight rather than the admissibility of the evidence in this instance. The affidavit states Rhyne was incarcerated on weekends in September 1997, and the plaintiff's allegations arose in the week preceding the final weekend of September 1997. Therefore, it is likely the alleged event occurred within the month before the alleged rape; and if it occurred the weekend after the alleged rape of the plaintiff by Pesina, ignoring Rhyne's statement that Pesina watched women shower would be even stronger evidence of deliberate indifference by Ligon.
Ligon parked his unlocked pickup truck outside the building, within the secured area, with ice chests of beer and loaded guns in it. Several months after the incidents at issue in this case, Ligon was discharged for having "consensual" sex with a female inmate.

Ligon was not on duty, however, at the time of the alleged sexual assault. The assault happened in the early morning hours during Don Stewart's 7:00 p.m. to 7:00 a.m. shift and possibly during John Overstreet's 6:00 p.m,. to 3:00 a.m. shift, but definitely before Ligon's 7:00 a.m. to 7:00 p.m. shift began that day.

LCJ alleges it had some policies in place that were designed to prevent sexual assaults of inmates, but as discussed below, it is in dispute whether these policies were enforced. As the head policymaker, Garrett stated that he was not involved in the running of the jail and delegated that duty to his head jailer, Lawson. To LCJ's credit, there is no evidence of any reported sexual assault prior to September 23, 1998 on the summary judgment record. Furthermore, there is no evidence of any complaints to Garrett about any sexual improprieties by any inmate or jailer.

The written inmate rules were poorly written, and there is no evidence every inmate read and/or signed anything stating he or she read them. (7)
(7) The "trusty rules" as signed by Pesina were submitted into evidence. Although they focus on work responsibilities, they do state trustees are never to get the keys to the cells, and they are to return to their own cells when not working. The rules say nothing about how trustees are to treat inmates, but they refer to the sophisticated inmate rules, which prohibit sexual contact in several different manners. The "trusty rules" do, however, include an interesting footnote stating that under the Texas Penal Code, physical force, including deadly force, may be used against inmates who attempt to escape.
Several of the rules stated inmates were prohibited from engaging in various forms of sexual behavior including kissing, touching, masturbation, and sexual assault. Under the list of "prohibited acts", the rules state "the following acts are prohibited... MALE [sic] AND FEMALES DO NOT COMMUNICATE IN ANY [sic] FORM." This rule is not only nonsensical, but the rule it intended to state (prohibiting any inmate from communicating with any inmate of the opposite gender) was clearly not enforced because trustees were permitted to deliver food and drinks to female inmates in an unsupervised manner. However, the defendants offer evidence that they have moved male inmates from the low risk/dorm jail to higher security single cells for having excessive conversations with female prisoners in the nearby women's cell. Furthermore, one male trustee was kicked in his rump by a female jailer who is not a defendant in this case for going over to talk to his "girlfriend" in the women's cell. (8)
(8) There is no evidence this trustee received any discipline other than the kick-in-the-rump, which was of questionable deterrent quality.
On one occasion, Ligon heard Pesina over the intercom in women's cell and told him to get away from the door, which Pesina did.

LCJ was equipped with an intercom sytem that Lawson states would pick up the sound of someone opening the 65-70 pound doors to the women's cells, which Pesina did multiple times, including his entry to sexually assault the plaintiff. There were some video cameras in the jail, but one crucial shortcoming was that no camera showed the door to the women's cell, and in fact none showed any part of the women's cell at all.

After the plaintiff gave notice that the sexual assault had occurred, Garrett immediately investigated the allegation. Pesina was strip-searched, and his clothes were taken as evidence. Pesina's trustee status was revoked, and he was "locked down". Ligon showed Garrrett that a knife and other kitchen utensils such as a spoon could be used to quickly enter women's cell. Garrett saw scratch marks on the lock, but only when he kneeled on the floor and examined it. The lock was changed the next day. The video cameras have also apparently been improved since September 1997. Furthermore, trustees are now locked down at night, and kitchen knives are chained in place.

B. Law

Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) states that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing there is a genuine issue for trial."

The Court must substantively evaluate the evidence offered by the party who filed the motion for summary judgment (the "moving party") and the party who opposes the motion (the"nonmoving party") to determine whether the evidence raises a "material" fact question which is "genuine." Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510(1986). If genuine issues of material fact exist, the motion must be denied. The Court can consider as controverting summary judgment evidence any facts admitted by a party in a sworn complaint or in other sworn pleadings. See Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 107-08 (5th Cir. 1987). Both the movant and the non-movant bear burdens of proof of producing evidence in the summary judgment process. Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986). The nonmoving party is not entitled to rest on its pleadings alone, but must carry the burden of providing evidence of a genuine issue of material fact. King v. Chide, 653, 656 (5th Cir. 1992).

In deciding whether to grant summary judgment, the Court should view the evidence in the light most favorable to the party opposing summary judgment and indulge all reasonable inferences in favor of that party. International Shortstop, Inc., 939 F.2d at 1263. The Fifth Circuit has concluded that "[t]he standard of review is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party based upon the record evidence before the court." James v. Sadler, 909 F.2d 834,837 (5th Cir. 1990)(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986)). However, "[n]either 'conclusory allegations'nor 'unsubstantiated assertions' will satisfy the non-movant's burden." Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (1996).

1. First claim for relief: against sheriff & jailer defendants individually

The plaintiff asserts claims against the sheriff (Garrett) and jailer defendants (Ligon, Stewart, and Overstreet) under 42 U.S.C. 1983, 1985, and 1988. The Court will consider section 1988 and attorneys fees after a judgment has been rendered in this case. The Court sees no cause of action under section 1985 for conspiracy because there is no evidence of any conspiracy, much less any conspiracy founded on raced-based animus, as is required under section 1985. (9)
(9) For a successful section 1985 claim, it is essential in such a claim "that the conspiracy be motivated by racial animus." Word of Faith Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 124 (5th Cir. 1996). In this case, there are no allegations of animus, so the section 1985 claims fail on that ground. But the plaintiffs have not even alleged a "conspiracy" because the parties allegedly involved in the conspiracy were all agents of LCJ and therefore unable to "conspire" under the intracorporate conspiracy doctrine. See Hilliard v. Ferguson, 30 F.3d 649,653 (5th Cir. 1994), Thompson v. City of Galveston, 979 F. Supp. 504,511 (S.D. Tex. 1997).
The Section 1983 claim alleges constitutional violations of the Fifth, Fourteenth, and/or Eighth Amendment for failure to protect the plaintiff from sexual assault while incarcerated. To survive summary judgment on such a claim, the plaintiff must raise a fact issue that (a) there was a violation of constitutional right; (b) which is clearly established; and (c) subjective deliberate indifference by the actor caused the violation of the constitutional right. See Hare v. Corinth, 135 F.3d 320, 323-24 (5th Cir. 1998).

There is no real dispute that the right to be protected from sexual assault is a clearly established constitutional right. The issues are whether the defendants acted with subjective deliberate indifference and whether their alleged subjective deliberate indifference caused that violation. In order to establish subjective deliberate indifference, the plaintiff must offer proof that the defendants actually knew of the substantial risk. See id. at 324. A jury could infer knowledge of a substantial risk of serious harm from the fact the risk is obvious. See Farmer v. Brennan, 114 S. Ct. 1970, 1981 (1994).

In addition to offering summary judgment evidence establishing the elements of a section 1983 claim for failure to protect her from sexual assault, the plaintiff must also overcome qualified immunity, which shields state officials from suit for damages provided their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Anderson v. Creighton, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982). To determine whether a defendant is entitled to qualified immunity, the Court must engage in a two-part inquiry. First, the court must determine whether the plaintiff has alleged a violation of a clearly established constitutional or statutory right. See Ganther v. Ingle, 75 F.3d 207,210 (5th Cir. 1996). If the law is clearly established, then the court must decide whether the defendant's conduct was objectively reasonable in light of that law. See id. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 107 S. Ct. at 3038-39. In a deliberate indifference failure-to-protect claim, courts have stressed that qualified immunity must require the plaintiff to prove not only subjective deliberate indifference, but also that the defendants' conduct was not objectively reasonable, otherwise, qualified immunity would mean nothing in this context. See Hare, 135F.3d at 328.