Summary Judgement Continued

The plaintiff's claims are based on (1) appointing Pesina as a trustee; (2) failing to adopt, incorporate, and enforce rules regarding trustees; (3) failing to supervise Pesina; (4) allowing trustees to have access to keys that would allow them access to the women cell; (5) allowing Pesina to have direct contact with women without supervision; and (6) failing to investigate and take immediate action to correct a known risk. The Court will analyze the plaintiff's claims against defendant Ligon in one subpart below, and the claims against defendants Garrett, Overstreet, and Stewart in another, not only because those defendants filed separate motions for summary judgment, but also because the legal analysis is different for Ligon compared to the analysis for other individual defendants.

2. Second claim for relief: against Sheriff and County for policy

To establish a claim against Llano County for the Sheriff in his official capacity under section 1983 for failure to protect, the plaintiff must raise a fact issue that a county "employee (1) violated [her] clearly established constitutional rights with subjective deliberate indifference; and (2) the violation resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference." Flores v. County of Hardeman, 124 F.3d 736,738 (5th Cir. 1997). The first element is described above in the discussion of individual liability. The second element, objective deliberate indifference, requires that the county or its policymaker, Sheriff Garrett, knew or should have known of a substantial risk of serious harm and that a county policy was the moving force behind the government actor's act or omission that caused the harm to plaintiff.

The plaintiff's claims alleging liability based on a county custom or policy are based on (1) the hiring of Ligon as a jailer, (2) the failure to establish and enforce rules and regulations to protect the plaintiff, and (3) the failure to supervise and review management and operation of the jail.

3. Third claim for relief: Texas state negligence

The plaintiff's third claim for relief alleges all defendants are liable in tort under Texas law for their negligence and gross negligence. Under the Texas Tort Claims Act, a governmental unit and its agents are protected by sovereign immunity from suit based on any torts unless the torts arise out of the operation of motor vehicles or the use of tangible personal property. Tex. Civ. Prac, & Rem. Code Ann. 101.021. The keys, the women's cell, the video cameras, and the intercoms are clearly not tangible property used to cause this injury. See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585-86 (Tex. 1996) (holding that a state hospital's use of oral medication instead of an injection does not constitute a "use of tangible property"); Smith v. Tarrant County, 946 S.W.2d 496,501 (Tex. App.-Ft. Worth 1997, writ denied) (holding that a police officer's failure to use his badge, gun, or radio does not constitute a use of tangible property that would fall within the Tort Claims Act's waiver of sovereign immunity). Therefore, the Texas tort claims do not merit further analysis below, and the defendants will be granted summary judgment on those claims.

II. Analysis
A. Defendant Ligon in his Individual Capacity

Defendant Ligon stands out among the defendants in the level of carelessness he showed for the safety of the inmates of LCJ. (10)
(10) Ligon left the jail unattended on numerous occasions, for varying lenghts of time. Ligon staged confrontations between inmates for the purpose of frightening them. Most atrociously, Ligon himself had sex with female inmates. Although Ligon asserts the sex was consensual, it is questionable how any imprisoned woman could fully consent to sex with a jailer, without any sense of coercion, fear, or desire for a quid pro quo. The fact that he was deliberately indifferent to that known risk is also clear.

Ligon also failed to do important paperwork, including head counts and suicide watch forms. Additionally, he was overly friendly with inmates and even threw a going-away barbecue party for an inmate who was "graduating" to the Texas Department of Criminal Justice-Institutional Division.
In fact the evidence suggests not only that Ligon had actual knowledge of the substantial risk of serious harm Pesina posed to the female inmates, but it also suggests Ligon himself posed a substantial risk of serious harm to the inmates. Nevertheless, Ligon was not on duty at the time of the assault, and the plaintiff has failed to present a link between Ligon's indifference and the injury to the plaintiff. The plaintiff's only argument is essentially that Ligon's attitude was contagious and emboldened Pesina to commit the sexual assault, but that link is too tenuous. Because there is no clearly established constitutional right preventing a government employee from acting as a bad or even horrible role model, Ligon is protected by qualified immunity, and summary judgment must be entered in his favor.

B. Defendants Overstreeet, Stewart, and Garrett in their Individual Capacities

The plaintiff has the burden to present summary judgment evidence that defendants Overstreet, Stewart, and Garrett acted with subjective deliberate indifference for her failure to protect claims against these defendants in their individual capacities to survive. Furthermore, she must raise a genuine issue of material fact that their conduct violated a clearly established constitutional right and was not objectively reasonable.

The plaintiff's primary argument that the evidence demonstrates subjective deliberate indifference on the part of the individual defendants centers on the obviousness of the risk. The most disturbing fact tending to suggest a risk of harm was that Pesina was appointed a trustee position that allowed contact with female inmates when Pesina had been indicted on two counts of indecency with a child. Although that criminal history, combined with past criminal history of armed robbery, drug violations, and DWIs, did not specifically indicate that Pesina was disposed to assault adult females, it did offer notice that Pesina had tendencies toward deviate sexual behavior. Clearly, it was negligent to allow an inmate with such a history to act as a trustee in such a way that he would have contact with female inmates.

The evidence reveals that Chief Lawson was the individual who made the decision to grant Pesina trustee status. Garrett concedes for purposes of summary judgment that the acts and knowledge of Lawson, to whom Garrett delegated his duties regarding the jail, are attributable to Garrett. Furthermore, Garrett had the authority to override that decision, but did not. In his affidavit, Garrett stated, "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]." Defendants Garrett, Overstreet, and Stewart's Motion for Summary Judgment Based on Qualified Immunity [#45], Exh. l, at 3 (Affidavit of Sheriff Nathan Garrett). Garrett apparently knew that Pesina had been indicted for indecency with a child.

The summary judgment evidence, however, does not present evidence of a risk that was so obvious it would lead to the inference that the individual defendants actually knew Pesina posed a substantial threat of serious harm to the female inmates in such a manner as to overcome qualified immunity. No evidence suggests any sexual assaults had ever occurred against female or male inmates at LCJ. No female inmates complained to the individual defendants about Pesina's advances, touching, exposing, peeping, or sexual acts with inmates. Finally, the plaintiff did not inform anyone about Pesina's advances or unwelcome touches or kisses. The only evidence that any of the individual defendants was actually aware of the risk posed by Pesina is that of a former inmate trustee, William Alexander, told Stewart or Overstreet that Pesina "had access to " the women's cell. Alexander does not remember which individual he told. Therefore, this evidence is perhaps too speculative to subject both defendants to trial based on that evidence alone. As for Garrett, although there is enough evidence to suggest he should have known of the substantial risk of serious injury posed by Pesina within the LCJ trustee scheme, no evidence suggests he actually knew of that risk, as is required for individual liability. Because the summary judgment evidence does not raise a fact issue that Garrett, Overstreet, and Stewart violated a clearly established constitutional right and acted in an objectively unreasonable manner, these three defendants are entitled to summary judgment based on qualified immunity.

C. Defendants Llano County and Sheriff Garrett in his Official Capacity

In order to sustain a claim against Llano County or its sheriff in his official capacity (collectively "the County"), the plaintiff must offer summary judgment evidence that (1) an individual acted with subjective deliberate indifference (the "predicate individual act or omission") and (2) that the County had a policy that exhibited objective deliberate indifference.

Ligon's subjective deliberate indifference could be the predicate individual act or omission for the County's liability. Furthermore, although the individual defendants are entitled to summary judgment on qualified immunity grounds, it is possible that the evidence at trial will show that one or more of them committed the predicate individual acts or omissions. For example, while Alexander's testimony that he told "Overstreet or Stewart" is not strong enough evidence to force both defendants to face individual libility without the protection of qualified immunity, that same evidence might be enough to show that one of the individuals committed a predicate act or omission subjecting the County to liability.

The standard for the objective deliberate indifference of the County is that Llano County or its policymaker, Sheriff Lawson [Publisher's Note: Published exactly as printed in the hardcopy ORDER. T.C.], knew or should have known of the substantial threat of serious harm to the inmates. There is no "smoking gun" suggesting any policymaker knew Pesina was going to rape an inmate, and there was no history of rape at LCJ. Nevertheless, the evidence on this record is so replete with pervasive misconduct, incompetence, and perversions that a fact issue exists as to whether Sheriff Garrett knew or should have known that LCJ's policies caused a substantial threat of serious harm to inmates.

The women's cell could easily be opened with a knife or spoon by Pesina, a person who was not exactly an expert in the science of corrections security; therefore, it is unclear why LCJ could not have discovered this lock was so useless before someone was sexually assaulted. It [is] not clear from the evidence, but the inmates may have even had access to the actual cell keys. The jailers and inmates sat around watching pornographic videos together. (11)
(11) This was not only an apparent bonding experience between jailers and jailees based on the objectification and exploitation of women, but it was also a good method of arousing males when they had no legal means of manifesting that arousal.
The County let a sexually deviant trustee care [for] its female inmates, to at least some extent, and it knowingly continued to employ a jailer known to leave the jail unattended and known to stage threats of rape and DEA hits. The County never locked up its trustees, even at night, and the trustees had free access to knives, including butcher knives. Moreover, trustees were permitted to roam where they wished and to be alone with female inmates in the recreation room while bringing food or drinks to them or "checking on" them.

After Garrett and the County had knowledge of the alleged sexual assault involved in this case, the first reported allegations of sexual assault in the jail, the County took several steps to prevent a future occurrence. The County undertook an immediate investigation. Pesina was strip-searched and his clothes were taken as evidence, and Pesina was removed from his trustee status and locked down. As soon as Garrett was shown by Ligon that the female cell's lock could be easily unlocked without a key, Garrett arranged to have a new lock installed, and the lock was changed the next day. Chief Lawson was given a written reprimand by Garrett regarding the fact that Pesina was not properly supervised. Trustees are now locked in their cells at night, and the selection of trustees involves more scrutiny of their criminal history. Kitchen knives are chained so they cannot be removed from the kitchen.

On the one hand, these changes in policies subsequent to the alleged sexual assault suggest the County was not subjectively deliberately indifferent prior to the incident. However, it is unclear why these measures -- changing an obviously dysfunctional lock, locking all inmates up at night, and preventing inmates from carrying around knives -- would not have been taken prior to the rape by any County that was not objectively deliberately indifferent to the serious risk of its female inmates being sexually assaulted under the pre-September 1997 regime, in which inmate trustees had the run of the jail.

Therefore, a genuine issue of material fact exists as to whether Llano County or Sheriff Garrett was objectively deliberately indifferent to the substantial risk of serious harm to inmates, and Llano County's Motion for Summary Judgment must be denied.

In accordance with the foregoing, the Court enters the following orders: IT IS ORDERED that Defendant Ligon's Motion to Exceed Page Limit [#82] is GRANTED; IT IS FURTHER ORDERED that Defendant Ligon's Motion for Summary Judgment [#31] is GRANTED; IT IS FURTHER ORDERED that Defendants Stewart, Overstreet, and Garrett's Motion for Summary Judgment Based on Qualified Immunity [#45] is GRANTED; IT IS FURTHER ORDERED that Llano County's Motion for Summary Judgment [#76] is DENIED; IT IS FURTHER ORDERED that Defendant Ligon's Objections to, and, in the Alternative, Motion to Strike Exhibits in Support of Plaintiff's Response to Defendant Ligon's Motion for Summary Judgment [#75] is DiSMISSED AS MOOT; and IT IS FINALLY ORDERED that this case is SET for jury selection on Monday, October 19, 1998 at 8:30a.m. in Courtroom 2, United States Courthouse, 200 W. 8th Street, Austin, Texas, with a jury trial to follow thereafter, and each side shall be allotted EIGHT (8) HOURS, beginning with opening statement and continuing through the close of evidence (including direct examination, cross-examination, and rebuttal).

SIGNED this the 23rd day of September 1998.