by Jack Ryan, J.D.
Legal & Liability Risk Management Institute
Classification of arrestees upon entry into a jail is an important aspect of safety and security of the jail, its staff, and other prisoners. Many of the cases which raise issues on classification are brought as the result of inmate on inmate assaults. In these cases, the jail’s policy and practices with respect to inmate classification and housing plans are the subject of scrutiny.
The contours of the duty to protect a prisoner’s personal safety were outlined by the United States Supreme Court in Farmer v. Brennan.i The Court outlined the facts of the case as follows:
“Dee Farmer, [filed a lawsuit] alleging that respondents, federal prison officials, violated the Eighth Amendment by their deliberate indifference to petitioner's safety. Petitioner, who is serving a federal sentence for credit card fraud, has been diagnosed by medical personnel of the Bureau of Prisons as a transsexual, one who has "[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex," and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change. For several years before being convicted and sentenced in 1986 at the age of 18, petitioner, who is biologically male, wore women's clothing (as petitioner did at the 1986 trial), underwent estrogen therapy, received silicone breast implants, and submitted to unsuccessful "black market" testicle-removal surgery. Petitioner's precise appearance in prison is unclear from the record before us, but petitioner claims to have continued hormonal treatment while incarcerated by using drugs smuggled into prison, and apparently wears clothing in a feminine manner, as by displaying a shirt "off one shoulder," The parties agree that petitioner "projects feminine characteristics."
The practice of federal prison authorities is to incarcerate preoperative transsexuals with prisoners of like biological sex, and over time authorities housed petitioner in several federal facilities, sometimes in the general male prison population but more often in segregation. While there is no dispute that petitioner was segregated at least several times because of violations of prison rules, neither is it disputed that in at least one penitentiary petitioner was segregated because of safety concerns.
On March 9, 1989, petitioner was transferred for disciplinary reasons from the Federal Correctional Institute in Oxford, Wisconsin (FCI-Oxford), to the United States Penitentiary in Terre Haute, Indiana (USP-Terre Haute). Though the record before us is unclear about the security designations of the two prisons in 1989, penitentiaries are typically higher security facilities that house more troublesome prisoners than federal correctional institutes. After an initial stay in administrative segregation, petitioner was placed in the USP-Terre Haute general population. Petitioner voiced no objection to any prison official about the transfer to the penitentiary or to placement in its general population. Within two weeks, according to petitioner's allegations, petitioner was beaten and raped by another inmate in petitioner's cell. Several days later, after petitioner claims to have reported the incident, officials returned petitioner to segregation to await, according to respondents, a hearing about petitioner's HIV-positive status.
Farmer filed a lawsuit in which he alleged that the prison officials “either transferred petitioner to USP-Terre Haute or placed petitioner in its general population despite knowledge that the penitentiary had a violent environment and a history of inmate assaults, and despite knowledge that petitioner, as a transsexual who ‘projects feminine characteristics,’ would be particularly vulnerable to sexual attack by some USP-Terre Haute inmates. This allegedly amounted to a deliberately indifferent failure to protect petitioner's safety, and thus to a violation of petitioner's Eighth Amendment rights.” [cites omitted]
In reviewing the case, the United States Supreme Court asserted:
The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones, and it is now settled that ‘the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment,’ In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. The Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates… In particular, as the lower courts have uniformly held, and as we have assumed, "prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners” [cites omitted]
The Court outlined the requirements that an inmate must meet before having a valid constitutional claim with respect to a failure to protect:
“Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious,’ a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities,’ For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
The second requirement follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a prison official must have a ‘sufficiently culpable state of mind.’ In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety, a standard the parties agree governs the claim in this case.”
The Court went on to examine the meaning of deliberate indifference. The Court noted that “deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”
The Court concluded “that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
In accordance with the law as interpreted by the United States Court of Appeals for the Ninth Circuit, “jail supervisors may be held liable under § 1983 if they implement a policy that is so deficient that it amounts to deliberate indifference to an inmate's constitutional right to personal safety.”ii Thus, the importance of policy cannot be overstated.
In Martin, the plaintiff O.Z Martin alleged that the jail officials had been deliberately indifferent to his safety by placing him with a violent cell-mate. In ruling on the case, the Ninth Circuit held: “The district court properly granted summary judgment to Ness and Vandicken because Martin failed to raise a genuine issue of material fact as to whether defendants knew or should have known Martin's cell mate posed an excessive risk of danger to Martin's personal safety, or that defendants knew or should have known that Martin was particularly vulnerable to his cell mate. See id. at 1443 (if officials knew or should have known of a particular vulnerability of a pre-trial detainee, they have an obligation not to act with reckless indifference to that vulnerability).”
It is noted that the case focused on policy related to classification and housing plans. Although the court did not find that the policies were perfect, the court concluded: “The district court properly granted summary judgment to defendants Hagan and Schueller because Martin failed to raise a genuine issue of material fact as to whether defendants were deliberately indifferent to his safety by implementing the Santa Rita County Jail classification and housing policy, or whether the policy created a substantial risk of harm to the inmates.”
The Redmaniii case involved an eighteen year old who was arrested and brought to the jail. Redman was 5’6” and 130 lbs. and was initially held in the “young and tender” unit. “About one week after his arrival, after a verbal exchange with another inmate, Redman was transferred from the ‘young and tender’ module into an area housing the general population of the jail, or the ‘mainline’ module. Redman was assigned to a two-bunk enclosed single cell with an inmate named Kevin Clark. Clark was twenty-seven years old, approximately 5'11" tall, and weighed 165 pounds. The jail officials knew that Clark was incarcerated for violating parole upon a conviction for a sex offense. According to an inmate status report on file at the facility, Clark was an aggressive homosexual.”
“On Redman's first night in his new cell, Clark raped Redman. Clark warned Redman not to tell anyone, or he would harm Redman's girlfriend and her family, whose address he had obtained from a letter in Redman's locker. The next day Redman telephoned his brother and his girlfriend and told them of the assault, and that he feared future attacks. The mother of Redman's girlfriend, Mrs. Pearson, called the South Bay Detention Facility and told jail personnel that Redman had been threatened with sexual assault and that her daughter had been threatened in the event Redman told anyone. She did not report a rape because she did not know that one had occurred. Trial Transcript, at 155. She did, however, report that Redman ‘was very afraid of being [sexually] assaulted, and . . . had been threatened by people who were also in the jail, if he told anyone about any of the threats that had been made to him, that they could hurt our daughter because they knew our address from letters she had sent Clifton.’ Mrs. Pearson testified that the deputy with whom she spoke responded to the effect that the South Bay Detention Facility was not operating ‘a baby-sitting service.’”
“In response to this call, one of the guards on duty called Redman down to the deputy station via intercom and, within view of Clark and other inmates, asked Redman whether he was having any problems. Redman replied he was not. Redman later testified that he lied because he was afraid of what might happen to him, his girlfriend, and her family if he told the truth. No further investigation or inquiry was made by any jail official. Redman was left in the cell with Clark.”
“The next day Redman was raped again, this time not only by Clark but by two other inmates. Each of the three rapists was older and larger than Redman, and each had an extensive criminal record. After the assaults, Redman again telephoned his brother, this time talking and crying for an extended period of time in an open area of the facility. The next morning Clark raped Redman again. That afternoon Redman was released from custody. Each of the inmates who raped Redman subsequently was charged with sodomy. Each pleaded guilty.”
In its analysis of the lawsuit filed by Redman, the Ninth Circuit initially noted: “The Supreme Court has noted that the right to personal security constitutes a 'historic liberty interest' protected substantively by the Due Process Clause. And that right is not extinguished by lawful confinement, even for penal purposes. Youngberg v. Romeo, 457 U.S. 307, 315, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982).”
In looking at the jail’s policies the court asserted: “There is evidence that the action alleged to be unconstitutional, namely, the deprivation of Redman's right to personal security by placing him in a cell with an aggressive homosexual, was the result of county policies or customs. First, the detention facility had a policy or custom of segregating homosexuals. Then, once aggressive homosexuals were discovered, the detention facility relocated them according to the policy or custom in the mainline population of the prison to protect the passive homosexuals… Second, the county had a policy or custom of overcrowding the prison, so that heterosexual inmates were placed in the same cell or module with aggressive homosexuals…. The strongest written policy on homosexual is in the San Diego County Sheriff's Department Manual of Policies and Procedures, which states ‘Homosexual inmates will be isolated from other inmates as necessary’…We do not read this to require that aggressive homosexuals be segregated from the mainline population. Instead, we find that the written policy was, as explained by Lt. Beall and county counsel, intended to protect the passive homosexuals.
oreover, even if it could be said that the general policy applicable to San Diego county jail facilities was to isolate and observe sexual aggressors, the routine failure (or claimed inability) to follow the general policy at the SBDF constitutes a custom or policy which overrides, for Monell purposes, the general policy. The unwritten policy at the SBDF was to put the aggressive homosexual in the mainline population, because it was assumed heterosexual inmates could protect themselves.”
In deciding that Redman had a valid claim, the court asserted: “We conclude that there is evidence from which a reasonable jury could find that the jail officials were acting pursuant to County policies or customs when Redman and Clark were placed in the same cell. A reasonable jury could find that these policies or customs or both exacerbated the danger posed by an aggressive homosexual to the general prison population to such an extent that they amounted to deliberate indifference to Redman's personal security, thus constituting a violation of § 1983.” It is noted that although Redman is an older case, the Ninth Circuit cited to its holding in Martin v. Alameda County.iv
Another case involving classification, revolved around the issue of rival gangs.v “During the events in question, Luna was an inmate at the Sacramento County Jail. His version of events is as follows. Luna was classified as a total separation inmate because of his former affiliation with a Northern Mexican gang. Total-separation inmates are separated from other inmates at all times and are housed in a separate unit for their own protection. On the evening of October 4, 2001, Luna was in his cell in the total separation unit on the 7-East floor. Thurien was the control/floor officer on duty at the pertinent times that evening, controlling inmates' entry and exit from their cells and common areas of the unit. Thurien released Luna from his cell to allow Luna to "program" (i.e., to shower, shave, etc., in the common area of the unit) for one hour. Approximately 30-40 minutes into Luna's program time, two inmates arrived at the unit for reclassification because they had started a fight in another unit earlier in the day. Thurien released the two unescorted inmates, who were affiliated with a gang that rivaled Luna's former gang, into the common area of the unit, after which they attacked Luna in the shower area. Luna sustained serious injuries in the ensuing fight.
Luna alleges that Thurien deliberately released the two inmates in order to provoke a fight, as retaliation for Luna's testimony against jail officers in an earlier court case, and to provide amusement for jail officers witnessing the fight. He also alleges that Thurien knew of Luna's prior gang affiliation and the gang affiliation of the other two inmates.”
In its review, the court began by examining the subjective knowledge of the officer, Thurien, who released the two attackers into the area where Luna was attacked. “Thurien's release of two unescorted members of a rival gang into the common area of the total separation unit while Luna was showering there exposed Luna to a substantial risk of serious harm.
nder Luna's version of the facts, reasonable inferences support that Thurien knew of the inmates' rival gang affiliations and released the two unescorted inmates with deliberate indifference to the substantial risk that a two-on-one fight would ensue. Thurien therefore had subjective knowledge of the serious risk to which Luna was exposed. The facts alleged thus establish a violation of Luna's Fourteenth Amendment rights… By the time of the incident in question, the Supreme Court's decision in Farmer v. Brennan had clearly established that the Eighth Amendment imposes a duty on prison officials to protect prisoners from violence at the hands of other prisoners.” Thus, the court concluded that Luna had stated a case against Thurien that could go forward to the jury.