This Loss Bulletin is intended to help municipalities, and their law enforcement officers and jailers reduce their risk of civil liability in connection with the maintenance and operation of their jails. Understanding the current case law and acting accordingly should significantly decrease the risk to cities and towns, police officers, supervisors, and jailers from lawsuits filed by prisoners and their families. This bulletin covers the general duty imposed on prison officials; a prisoner’s right to care for serious medical needs; the duty to prevent suicides; the duty to protect inmates from others; liability arising out of the use of other jail facilities; and the obligation to pay for medical expenses of prisoners. The liability discussed herein is for civil rights violations pursuant to 42 United States Code §1983 unless noted otherwise. The cases reported are applicable to municipalities in Oklahoma.
Introduction:
Local governing bodies can be sued directly only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694.
In order to state a claim for municipal liability under § 1983 for the actions of a municipal employee, a party must allege sufficient facts to demonstrate that it is plausible (1) that the municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). The plaintiff must further show that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).
To satisfy the deliberate indifference standard, a plaintiff must provide “proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). The city policymakers must also have actual or constructive notice of the particular issue or action. Connick v. Thompson, 563 U.S. 51, 61 (2011). A municipal policy or custom can take the form of:
(1) a formal regulation or policy statement;
(2) an informal custom amoun[ting] to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law;
(3) the decisions of employees with final policymaking authority;
(4) the ratification by such final policymakers of the decisions — and the basis for them — of subordinates to whom authority was delegated subject to these policymakers' review and approval; or
(5) the failure to adequately train or supervise employees, so long as that failure results from 'deliberate indifference' to the injuries that may be caused.”
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).
Duty Imposed on Prison Officials
The Tenth Circuit provides an in-depth discussion of the general duty imposed on prison officials in Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008). Tafoya was an inmate who was sexually assaulted by a male officer while performing her work duties on multiple occasions. The County Jail where the assault occurred had a history of officers sexually assaulting female inmates, and three years before the action, two officers had even been convicted and imprisoned for the offenses. Before Tafoya’s assault, in response to other officer’s convictions, the County Sheriff had taken “some steps to remedy the risk to female inmates of sexual assault.” Id. at 915. These steps included firing the jail administrator, installing additional surveillance cameras, the hiring of additional female staff, and the implementation of sexual harassment training. Id.
In Tafoya, the issue before the Tenth Circuit was “whether, notwithstanding these steps, Sheriff Salazar's alleged failure to implement and enforce other policies to protect female inmates amounted to deliberate indifference.” Id. at 915-16. The Tenth Circuit held that prison officials have a duty “to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm.” Id. at 916. Explaining that not every injury suffered by an inmate gives rise to a breach of duty, the court identified a two-step inquiry for determining the breach of this duty by a prison official. Id.
First, “the alleged injury or deprivation must be sufficiently serious.” As to this prong, in this instance, judged on an objective standard, the Tenth Circuit found that a sexual assault easily satisfied this requirement. Id. Second, the official must have a “sufficiently culpable state of mind.”
Next, elaborating on the second prong, the court applied the “deliberate indifference” standard to determine the culpability of a prison officials mental state, the satisfaction of which required “the official knows of and disregards an excessive risk to inmate health or safety.” Id. In contrast to the first prong, this determination is a subjective standard which requires first that “the official actually be ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists. . . .’”
The court further explained that knowledge of this risk need not be particular to a certain inmate, nor a particular way in which injury might occur, and although a subjective standard, “a jury is permitted to infer that a prison official had actual knowledge . . . based solely on circumstantial evidence, such as the obviousness of the condition.” Id. at 916-17. Nonetheless, there can be no “deliberate indifference” without the official’s awareness of the risk. Id. at 916. Upon a finding of awareness of potential harm, the deliberate inference standard requires second the failure “to take reasonable steps to alleviate that risk” for liability to attach. Id.
Explaining that a prison official may still be liable for harm suffered by inmates despite “efforts reasonably calculated to reduce the risk, if he intentionally refuses other reasonable alternatives and the dangerous conditions persist” the court found the sheriff’s failure to enforce the new polices he had implemented, and the “anything-goes” culture among the detention officers rose to the level of deliberate indifference. Id. at 917-19. Due to these findings, the court denied the prison officials motion for summary judgment. Id. at 922.
Prisoners’ Right to Care for Serious Medical Needs
The standard of care owed a prisoner, which the Tenth Circuit applied in Tafoya (discussed above) was established in 1976 by the United States Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976). Gamble was an inmate who claimed he had hurt his back while unloading a truck. Id. at 99. He complained that he was unable to get adequate medical care from the prison officials despite repeated requests. Id. Gamble sued the prison officials because they had subjected him to cruel and unusual punishment in violation of his civil rights under 42 U.S.C. §1983. Id.
The Supreme Court agreed with Gamble and held the government has a fundamental obligation to provide medical care to prisoners in its custody. Id. at 103. The Court explained, “an inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Id. at 104. The Supreme Court explained that prisons are required to provide medical care to incarcerated prisoners because they are unable to take care of themselves as a result of the state’s deprivation of their liberty. Id. The Court further held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain. . . .” Id.
The denial of medical care which results in the infliction of unnecessary suffering is inconsistent with contemporary standards of one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Ramos v. Lamm, 639 F.2d 559, 575 (1980). While this case dealt with an inmate in prison, the legal principle would likewise apply to a municipal prisoner or pretrial detainee. Estelle, 429 U.S. at 560.
It is important to note that while establishing the standard of care owed to a prisoner in Gamble, the Supreme Court explicitly identified the standard of care owed to prisoners is the same for prison guards and prison doctors alike. Id. 104-05. Thus, a doctor’s indifference to prisoners’ needs is treated the same as a guard who delays, denies, or interferes with a prisoner’s medical care. Id. Nonetheless, the Court also took pains to explain that not ever claim of inadequate medical treatment by a prisoner states a violation of the Eighth Amendment. Id. at 105. In other words, a simple medical malpractice claim does not rise to the level of an Eight Amendment violation on its own; the prisoner must allege an act or omission “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106. In any case, for situations involving either malpractice or deliberate indifference rising to a constitutional violation, civil liability may lie.
Suicide: Duty to Protect Prisoner
It is difficult to grasp the concept that a municipality may be liable for an individual’s act of suicide. After all, no municipality has an official policy endorsing or aiding prisoners in their attempts to end their lives. However, juries and courts have often shown sympathy toward the decedent’s families in these cases. These families have convinced courts that municipalities should be liable for the suicide, not because of any affirmative action but for lack of action.
In Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), the widow and parents of Ronnie Garcia were awarded $147,000 for his negligent death while he was an arrestee. Id. at 305, 311. Garcia was arrested for driving under the influence of alcohol after he had been involved in a traffic accident. Id. at 305. He complained of back pains and was transported to a hospital. Id. In his possession were three bottles of medication which had been prescribed for him after he had been released from surgery two days earlier. Id. At the hospital, Garcia was lucid, talkative and oriented. Id. He refused to be examined. Id. Garcia was left alone in the examining room and apparently ingested an overdose of barbiturate, one of the prescribed medicines. Id.
He was found by the police passed out on the pavement outside the hospital. A doctor examined him and determined that he was semi-conscious. Id. The doctor had no knowledge that Garcia had ingested drugs. Id. Garcia had a strong odor of alcohol on his breath. Id. The doctor asked the officers if Garcia could be medically observed at the jail. After being told he could, the doctor approved his transfer to the jail. Id. The jail medic directed that Garcia be placed in a holding cell and be checked every 15 to 20 minutes. Id. at 306. Approximately four hours later he was still unconscious. Id. About two hours later he was found nearly dead. Garcia was taken to a hospital and twelve days later was diagnosed as brain dead. Id.
At trial, a medical expert said that Garcia would have survived the alcohol and ingested drugs if he had been taken to the hospital to be stabilized. Id. Another physician testified that the county failed to afford reasonable medical care to Garcia due to his condition. Id. The county sheriff testified that it was the county’s policy to jail unconscious individuals suspected of being intoxicated. Id. This was corroborated by the jail physician and medic. Id.
Despite this testimonial evidence about the policy, the Salt Lake County Jail had adopted the following written policy statement regarding prisoners:
Prisoners who are injured, unconscious, or otherwise in need of immediate care, or diagnosis will be transported to the hospital by the arresting officer before the prisoner will be accepted for booking.
Id. The Salt Lake County Sheriff’s Office had the following written policy regarding semiconscious or unconscious prisoners:
(1) Deputies will not deliver to the County Jail any prisoner who is unconscious or semiconscious and has to be carried into the jail.
(2) All arrested persons in the above stated condition shall be taken directly to the hospital for emergency treatment or medical treatment or medical diagnosis before being booked.
Id. The Court stated that deliberate indifference to serious medical needs may be shown by proving there are such gross deficiencies in staffing, facilities, equipment, or procedures that the inmate is effectively denied access to adequate medical care. Id. at 307-08. The Court concluded that the jury’s finding was supported by sufficient evidence of gross deficiencies and deliberate indifference to persons admitted to jail in an unconscious condition who were suspected of being intoxicated. Id. at 308. It was this level of indifference, the Court held, that caused the violation of Garcia’s constitutional rights. Id.
However, in another case, where the Court held that jail staff had no reason to suspect that a pre-trial detainee, who was intoxicated or under the influence of drugs, posed a risk of suicide, as is required to support a claim of deliberate indifference to detainee’s serious medical needs. Estate of Hocker by Hocker v. Walsh, 22 F.3rd 995 (10th Cir. 1994). Hocker committed suicide by hanging herself while detained in the Cleveland County detention center in Norman, Oklahoma. Id. at 997. She had been arrested for trespass, public intoxication and possession of controlled dangerous substances. Id. at 996.
At the time of Hocker’s arrest she walked to the patrol unit on her own power, carried on a conversation with a passenger, and walked into the book-in without need of assistance. Id. The book-in sheet described her as not violent or self-destructive, and apparently not on medication. Id. She was placed in a receiving section that was monitored until she was sufficiently sober to be placed with the general population. Id. at 997.
The next day Hocker was processed to be arraigned before the municipal court, although she spent most of the day asleep and remained somewhat incoherent or “still intoxicated” according to jail records. Id. On the following day, she visited with her attorney at the detention center. An hour and a half later she was discovered in her cell hanging from the upper bunk with a towel around her neck. Id.
The Tenth Circuit found there were no facts which suggested that the detention center staff had knowledge of the specific risk that Hocker would commit suicide. Id. at 999-1000. Nor did the facts suggest that Hocker’s risk of suicide was so substantial or pervasive that knowledge could be inferred. Id. Though the staff obviously knew that she was intoxicated or under the influence of drugs, the Court ruled that intoxication with its accompanying incoherence did not, by itself, give the staff knowledge that Hocker posed a specific risk of suicide. Id.
Duty to Protect Prisoners From Each Other
The issue of whether cities and towns are required under federal law to protect prisoners from each other was addressed in Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Id. at 1497. Mark Berry was arrested for burglary of a National Guard Armory. Id. After his arrest, he informed on his partners in crime who were later arrested. Id. They were held together in the same jail facility awaiting sentencing. Id. About a month later Berry was murdered by his former partners. Id.
In this jail facility prisoners were allowed twenty-four-hour access to each other. There was no jail policy which inquired whether a prisoner had implicated other prisoners in a crime or was a police informant. A jail expert for the family of Berry testified that this lack of policy was a contributing factor leading to Berry’s death because it was “extremely reckless” and an “extremely serious departure from accepted standards and procedures.”
Berry’s wife testified at trial that (1) her husband expressed fear for his safety, (2) she informed an unidentified jail employee of her husband’s fears, and (3) she asked the jail employee if there was any way Berry could be moved out of the cell because the guys he informed on were going to be put in there with him. No preventative action was taken.
The Court held that to establish the City’s deliberate indifference to Berry’s safety under the facts, it must be shown that:
(1) the City had actual knowledge of the specific risk of harm or that the risk was so substantial or pervasive that knowledge could be inferred,
(2) the City failed to take reasonable measures to avert harm, and
(3) the City’s failure to take such measures in light of its knowledge, actual or inferred, justifies liability for the attendant consequences of its conduct, even though unintended.
The Court stated that the City cannot absolutely guarantee the safety of its prisoners, but it has a constitutional duty to take reasonable steps to protect a prisoner’s safety and bodily integrity.
In a rather bizarre case, the United States Supreme Court examined the issue of whether a public official could be held liable for the transsexual rape of a prisoner by another prisoner. Farmer v. Brennan, 511 U.S. 825 (1994). Farmer was a preoperative transsexual who projected feminine characteristics but was placed in the general male population. He was subsequently beaten and raped by another inmate. Farmer alleged in his claim against the prison officials that they were “deliberately indifferent” to his need for safety.
The Court stated that “the Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” It explained in the opinion that the Constitution imposes duties on prison officials to “take reasonable measures to guarantee the safety of inmates and to protect prisoners from violence at the hands of other prisoners.” Prison conditions may be “restrictive and even harsh but gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective” the Court held. Although this case involved a prison, the legal principles would likewise apply to a municipal jail and its police and detention officers.
Use of Other Jail Facilities
It is commonly assumed by police officers that their liability for a prisoner’s well-being stops when the prisoner is booked into another law enforcement agency’s jail. Unfortunately, such is not always the case. If the law enforcement agency that receives a prisoner from your municipality has not formally agreed to be solely responsible for the prisoner’s well-being and medical needs, your municipality may still be liable for its proportion of the prisoner’s damages if a jury finds your municipality acted negligently.
Thus, it is advisable in situations where prisoners are frequently arrested by one law enforcement department and booked into the jail of another department, that both departments have a formal agreement stating when it is that a prisoner is considered to be in the care, custody, and control of the jail. Without such an agreement, questions may arise which can significantly affect liability. For example, is a municipal prisoner in a county jail under the control of the municipality until the prisoner is booked or until the prisoner is arraigned? These types of questions should be resolved in a written agreement between the departments.
Police departments should consider executing a hold harmless agreement with any other department which accepts their prisoners. This agreement should contain a provision whereby the receiving department indemnifies the transporting department from any injury or loss that may occur to a prisoner while incarcerated. Likewise, the receiving department should be indemnified by the transporting department for any injuries caused by the transporting department before the prisoner’s incarceration. A draft copy of a hold harmless agreement is available from OMAG.
Of course, regardless of how a prisoner may have come into your municipality’s custody if the prisoner shows signs of or is complaining of injury or illness, the recommended procedure is to have the prisoner examined by a qualified healthcare provider. Both the arresting department and the jailing department should document the medical condition of every prisoner they take into custody. When a prisoner is booked into a jail, the transporting department should always give the receiving department any information it has about a prisoner’s medical condition or disabilities.
For example, the arresting officer may be aware that the prisoner has taken certain drugs or that the prisoner has an arm or shoulder problem which prevents him from being handcuffed behind his back. If the prisoner is subsequently injured or develops medical complications in the jail due to the lack of this information, the transporting department may be liable for failure to make the appropriate disclosure about the prisoner’s condition.
For a further discussion of this and related issues see Oklahoma Law Enforcement Operations Bulletin, volume 2, number 5, entitled “Legal Issues Concerning Transporting and Holding Arrestees and Prisoners,” which is currently available from OMAG.
Medical Expenses
Determining responsibility for payment of medical expenses for persons in police custody is sometimes fraught with contradiction. State law provides that a municipality is responsible only for medical care required by its act or omission. However, civil rights case law holds that municipality responsible for seeing that the person in custody receives medical care. Oklahoma statutes address when a municipality is liable for the payment of its prisoner’s medical expenses. Oklahoma Statutes title 11, §14-113, provides that:
“When a defendant is in the custody of a municipal jail, the custodial municipality shall only be liable for the cost of medical care for conditions that are not preexisting prior to arrest and that arise due to acts or omissions of the municipality. Preexisting conditions are defined as those illnesses beginning or injuries sustained before a person is in the peaceable custody of the municipality’s officer.
An inmate receiving medical care for a preexisting condition or a condition not caused by the acts or omissions of the municipality shall be liable for payment of the cost of care, including but not limited to, medication, medical treatment, and transportation costs, for or relating to the condition requiring treatment.
Therefore, under state statute a municipality would not be liable for the medical expenses associated with the treatment of a prisoner who required medical care for a heart problem if it can be proven that the heart problem existed before the prisoner was arrested or incarcerated. In this case any obligation for the payment of medical expenses should rest with the prisoner.
On the other hand, injuries arising out of the acts or omissions of a municipality while a prisoner is in its custody would impose liability upon the municipality for the payment of the prisoner’s medical expenses. So, for example, if a prisoner slipped in the shower and was injured due to an unreasonably slick floor, the municipality would be responsible for the medical expenses associated with the treatment of the injury.
Notwithstanding the state statutes, it is essential that law enforcement departments provide prompt medical attention to any prisoner when a medical need arises. As previously discussed, failure to do so may result in a civil rights violation under 42 U.S.C. §1983. It should also be noted that in an unreported decision in the United States District Court for the Western District of Oklahoma, the court found that a statute identical to §14-113 (except that it applied to counties, Okla. Stat. 19, §746) was unconstitutional as it was applied to the pretrial detainee plaintiff. Rivera v. Board of County Com’rs of Comanche County, case no. CIV-93-266-W (W.D. Okla. 8/11/93).
Plaintiff Rivera was an indigent pretrial detainee in the county jail and while in the jail was found to have a form of cancer. The county agreed to transport Rivera to receive chemotherapy, but refused to pay for the treatment. The county argued that under 746 Rivera had a preexisting medical condition and therefore the county was not responsible for payment of Rivera’s chemotherapy.
The court found that the county’s application of §746 to Rivera was unconstitutional because it effectively prevented him from receiving needed medical services. The court stated that “[d]efendants may not refuse the provision of needed medical services [based] upon plaintiff’s ability or inability to pay.” Id. at 6.
In a recent Oklahoma Supreme Court case a sheriff argued that the county was not responsible for a prisoner’s medical bills since the injuries occurred while the prisoner was at large. The prisoner was injured when he jumped from a third-story window in his attempt to escape from the jail. Upon recapture, the prisoner was treated for his injuries and returned to the jail. The Court held that the county’s responsibility arose when the prisoner was apprehended.
It stated the statute imposes a duty to provide medical care to any county prisoner in need of medical care, regardless of how the need arises. State ex rel. Dept. of Human Services v. Board of County Com’rs of McClain County, 829 P.2d (Okla. 1994). See also State ex re. Dept. of Human Services v. Board of County Com’rs of Oklahoma County, 831 P.2d 1006 (Okla. 1991) (County liable to DHS regardless of whether inmate was indigent or whether DHS attempted to collect medical expenses from inmate). Although these cases involved county sheriff’s departments, based on the court’s reasoning it is very likely that the decision would be the same if a municipality was the defendant.
Conclusion
It is imperative that municipal officials and police departments understand the legal duties which are imposed upon them because they use or operate jail facilities. If your police department has been “deliberately indifferent” to the medical needs of a prisoner and injury results, then the municipality, public officials or police officers may be liable for damages under 42 U.S.C. §1983.
Adequate medical care includes monitoring a prisoner when s/he exhibits suicidal behavior. This requires that all law enforcement officers who handle a prisoner share information about the suicidal behavior or the medical condition of the prisoner. A written medical inventory or screening form should be kept for each prisoner taken into custody.
A prisoner has the right to protection from other prisoners when the officers operating the jail are aware of the imminent danger of injury to the prisoner. Under §1983 your city or town, or its officials may be liable for a prisoner’s damages if they are deliberately indifferent to a situation where it is likely that the prisoner will be harmed by other prisoners.
Liability for a prisoner does not automatically stop when the prisoner is released to the custody of the jail. A written agreement between your department and the receiving department or agency should clearly set forth the responsibilities of each party for the care and custody of a prisoner.
Under certain conditions municipalities are required by state statute to pay for the medical expenses of prisoners who are detained in their jails. However, even if a municipality is not required to pay for medical expenses by statute, failure to provide needed medical treatment to a prisoner, may subject a municipality to liability under §1983.
