Richardson v. Berti et al

Filing 61

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that defendants' for summary judgment [# 34 ] is granted only as to the individual capacity claims against Sheriff Toelke. The motion is denied in all other respects. Signed by District Judge Catherine D. Perry on 05/28/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JO Y. RICHARDSON,

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Plaintiff,
vs.
DAMON BERTI, et al.
Defendants.

Case No. 4:12 CV 543 CDP

MEMORANDUM AND ORDER
This case comes before me on a motion for summary judgment filed by
defendants Sheriff Gary Toelke and the County of Franklin, Missouri. Plaintiff
alleges that defendant Damon Berti, a former correctional officer and sheriff‟s
deputy, sexually assaulted her while she was housed as a pretrial detainee in the
Franklin County jail. Plaintiff‟s suit includes counts against Franklin County and
Sheriff Toelke in both his individual and official capacities under 42 U.S.C. § 1983
for failure to properly hire,1 train, supervise, and protect in derogation of her
Fourth and Fourteenth Amendment rights. I will grant summary judgment as to the
individual capacity claims against Sheriff Toelke, because plaintiff fails to provide
evidence as to his subjective knowledge of constitutional deficiencies. I will
otherwise deny summary judgment.

1

In her Memorandum in Opposition, Richardson abandons her claims relating to hiring.

1.

Background

The following facts have been recited in a light most favorable to plaintiff
and are set forth for the purposes of ruling on this motion only. Plaintiff was a pretrial detainee in custody of Franklin County and was housed in its jail when she
was sexually assaulted by Deputy Sheriff Damon Berti on March 5, 2010. Berti
entered her housing pod alone between 3:00 and 4:00 a.m. He was not seen by any
officer on duty. Berti ordered her into a shower area, where he forced her to have
oral and vaginal sex under threat of being maced. Berti later confessed and was
convicted of unlawful sexual contact.2
The Department requires its applicants to complete a one year P.O.S.T.
approved course of instruction that includes instruction on the unlawful sexual
contact law under which Berti was convicted. In addition to the P.O.S.T. training,
deputies are required to complete the National Sheriff‟s Association Jail Officer’s
Training Program correspondence course, six months of supervised field training,
and a one-year probationary period. Although Berti‟s training record included low
marks for violating department policy by entering housing pods alone, his field
training was determined to be complete and was cut short by three months.
In March 2010, there were approximately thirty deputies in the Department,
of which three were female. Doc. 42-4 at p. 3. There are usually five to seven
2

R.S. Mo. § 566.145 prohibits a jailer from engaging in sexual intercourse or oral sex with a
person in custody; consent is not an affirmative defense.

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corrections officers and/or supervisors at the jail each shift. On the evening shift,
one officer is placed at the control center, one at the booking desk, one at the jail
desk, and one is a “roamer.” The shift supervisor primarily rotates between the jail
desk and the booking desk, but will often leave the facility to get sodas. The shift
supervisor notifies the other officers when he leaves. The female housing pods are
not immediately visible from either the booking desk or the jail desk; as a result,
the jail relies upon the control center to monitor that unit. Doc. 42-7 at p. 4–6.
The jail has a video camera that is pointed at the door of the female housing
module and which is monitored by a deputy in the control center. However, it is
considered acceptable for the monitoring deputy to stop watching the viewing
screens for ten to fifteen minutes at a time. Doc. 42-4 at p. 7; 42-5 at p. 6. The
monitoring deputy is supposed to keep track of significant events in a logbook;
however, the deputy has discretion in determining what is significant. Doc. 42-5 at
p. 6. Although a male deputy entering a female inmate housing pod alone would
be significant, it would not be recorded in the logbook. Doc. 42-5 at p. 7. Failure
to keep an accurate logbook was not disciplined. Doc. 42-8 at p. 10.
The Department and Franklin County had a policy against sexual harassment
in the workplace that required reporting sexual harassment directly to supervising
officers. No training was provided to the deputies on how to prevent either sexual

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harassment or sexual abuse.3 Doc. 42-3 at p. 3–4. Berti‟s superior, Sergeant
Delatorre,4 testified at his deposition that he had not been trained on how to
prevent sexual abuse or harassment, but that he had read the policy manual that
describes what to do if you feel like you are a victim of harassment. Doc. 42-8.
Captain David Boehm testified that the duty of an observing officer to report the
harassment of another depended upon whether the victim of the harassment was
perceived to find it offensive. Doc. 42-9 at p. 3.
It is Department policy that every staff member is a supervisor and so is
obligated to report violations of policy and that this reporting should continue up
the chain of command. Despite this policy and the “zero-tolerance” sexual
harassment policy, Berti was never identified as posing a threat to the female
inmates or to his coworkers.
On several occasions during his tenure with the Sheriff‟s Department, Berti
was seen violating the Department‟s policy that deputies only enter an inmate‟s
housing module in pairs except during emergencies.5 These violations were not
unique to Berti; one deputy stated during a deposition that she and the other
deputies had on several occasions entered the housing modules solo and that she

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It is unclear from the record whether the P.O.S.T. training covered these areas.
Sergeant Delatorre has since been promoted to Lieutenant.
5
Current and past officers and deputies within the Department disagree on whether the policy
was for the officers‟ protection solely or in addition to the inmates‟; there is also some dispute as
to whether the policy was even in place.
4

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had seen male deputies enter female pods alone. Although Berti‟s supervisor was
informed of his violations, Berti continued to violate the policy. Deputy Stephanie
Reynolds also saw Berti choke an inmate unprovoked, and she reported the
incident to her corporal. Doc. 42-4 at p. 5–6. Berti was not formally punished for
any of these policy violations.
Beginning during his probationary period and extending until his
resignation, Berti engaged in progressively worsening sexual conduct towards his
coworkers. Berti made sexually explicit gestures and comments towards more
than one deputy. Another female employee asked a deputy to keep Berti from
entering the kitchen when she was there alone. Berti showed others graphic sexual
photographs on his phone, sent nude photographs, and demanded that co-workers
reciprocate. Some of this conduct occurred in the presence of other officers, who
did not report it. One of the female deputies asked Sergeant Delatorre not to be
placed on duty at the same station as Berti, but did not tell him she was being
sexually harassed. Berti later forced that deputy to perform oral sex on him.
Shortly thereafter, she requested an assignment away from the jail; she also told
one other deputy about the assault.6 No formal reports were made about these
incidents until after the investigation into plaintiff‟s case began.

6

There is nothing in the record indicating how that deputy treated the information.

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Plaintiff‟s complaint includes claims against both the County and Sheriff
Toelke as an official and an individual for the failure to train the jail staff on how to
prevent sexual abuse of inmates by jailors, failure to properly supervise Berti,
failure to protect plaintiff, and failure to use appropriate care in hiring and training
Berti. The County and Toelke argue that they are entitled to summary judgment as
to all of plaintiff‟s claims because there is no evidence that Berti was improperly
hired, trained, or supervised and because plaintiff has not shown deliberate
indifference with regards to her protection. Because plaintiff has abandoned her
claims relating to Berti‟s hiring, I will not discuss that argument.
2.

Standards Governing Summary Judgment

In ruling on summary judgment, the Court views the facts and inferences in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden
to establish the absence of a genuine issue of material fact and that the party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once the moving party has met this burden, the nonmoving party may not
rest on the allegations in its pleadings, but must set forth by affidavit or other
evidence specific facts showing that a genuine issue of material fact exists. Fed. R.
Civ. P. 56(c). A party may not merely point to unsupported self-serving

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allegations, but must substantiate allegations with sufficient probative evidence
that would permit a finding in its favor. Wilson v. Int’l Bus. Machs. Corp., 62 F.3d
237, 241 (8th Cir. 1995). “The mere existence of a scintilla of evidence in support
of the [party‟s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; Davidson
& Assoc. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005).
3.

Discussion

The Fourteenth Amendment‟s Due Process Clause grants to state pretrial
detainees rights that are “at least as great as the Eighth Amendment protections
available to a convicted prisoner.” City of Revere v. Mass Gen. Hosp., 463 U.S.
239, 244 (1983). In fact, the protections are greater for pretrial detainees, who
have not been convicted of a crime; they may not be subjected to any punishment.
Bell v. Wolfish, 441 U.S. 520, 537 (1979). To succeed on a claim under the Due
Process Clause, a pretrial detainee must show the defendant official was
deliberately indifferent to his rights. See Butler v. Fletcher, 465 F.3d 340, 345 (8th
Cir. 2006).
Deliberate indifference is treated differently when used to evaluate fault by a
municipality than when applied to a prison official. Walton v. Dawson, No. 124000, 2014 WL 2053835, at *4 (8th Cir. May 20, 2014). No liability attaches to a
prison official without subjective knowledge – that is, unless the prisoner can

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prove the official both “knew of and disregarded an „excessive risk to inmate
health or safety.‟” Holden v. Hirner, 663 F.3d 336, 341 (8th Cir. 2011) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994). In contrast, when “applied to a
municipality in the Fourteenth Amendment context, deliberate indifference is
purely objective: „liability [may] be premised on obviousness or constructive
notice.‟” Walton, 2014 WL 2053835, at *4 (alteration in original) (emphasis
added) (quoting Farmer, 511 U.S. at 841).
3.1.

Municipal Liability Claims for Failure to Train, Protect, and Supervise

Plaintiff has sued the County and Sheriff Toelke in his both his individual
and official capacity as a policy maker. A suit against a government official in his
or her official capacity is “another way of pleading an action against that entity of
which an officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
n.55 (1978). “[T]he real party in interest in an official-capacity suit is the
governmental entity and not the named official.” Hafer v. Melo, 502 U.S. 21, 25
(1991). Municipalities cannot be held liable on a respondeat superior theory under
§ 1983 for the acts of their employees, Monell, 436 U.S. at 694, but a municipality
may be liable under § 1983 for acts for which the municipality itself is actually
responsible. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988).
In Monell, the Supreme Court of the United States held that municipalities
may be liable under § 1983 where “the action that is alleged to be unconstitutional

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implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated” by the municipality. Monell, 436 U.S. at 690.
Liability under Monell requires: (1) a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity‟s employees; (2) deliberate
indifference to or tacit authorization of such conduct by the governmental entity‟s
policymaking officials after notice to the officials; and (3) a showing that the
policy or custom was the moving force behind the injury to the plaintiff‟s
constitutional rights. Jane Doe A v. Special Sch. Dist. of St. Louis Cnty., 901 F.2d
642, 646 (8th Cir. 1990). Liability attaches only where the decisionmaker
possessed final authority to establish municipal policy. Praprotnik, 485 U.S. at
123; City of Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
In City of Canton v. Harris, 489 U.S. 378 (1989), the Court expanded or
clarified its municipal liability jurisprudence. It held that a city‟s failure to train its
police officers could give rise to § 1983 liability. Id. at 378. Whether the failure to
train constitutes a policy or custom does not require the existence of a continuing,
widespread, and persistent pattern of unconstitutional misconduct like Monell.
Larson by Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996). Rather, the
training or failure to train becomes the policy or custom required to be proven. If
the policy itself is unconstitutional, then municipal liability can be established
where the misconduct is linked to the unconstitutional policy. City of Okla. City v.

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Tuttle, 471 U.S. 808, 823–24 (1985). But if the policy is not itself unconstitutional,
“considerably more proof than the single incident will be necessary” to contribute
fault to the municipality and establish the causal connection between the policy
and the constitutional deprivation. Id. at 824.
Ultimately, the plaintiff must prove that (1) the county‟s training procedures
were inadequate, (2) it was deliberately indifferent to the rights of its people in
adopting the procedures, such that the failure to train reflects a deliberate or
conscious choice by the county, and (3) the alleged deficiency actually caused the
harm. Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996). Notice that the
procedures were inadequate can be implied if (1) the failure to train is so likely to
result in a constitutional violation that the constitutional violation was patently
obvious or (2) a pattern of misconduct indicates the current training is insufficient
to protect constitutional rights. Larson, 76 F.3d at 1454. A direct causal link
between a municipal policy or custom and the alleged constitutional deprivation
must be established. Canton, 489 U.S. at 390–91. The question becomes: “would
the injury have been avoided had the employee been trained under a program that
was not deficient in the identified respect.” Id. at 391.
3.1.1 Failure to Train
Defendants argue that a deputy cannot be trained “not to rape.” Cf. Andrews,
98 F.3d at 1077. The record shows that Berti was trained on Missouri‟s law against

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sexual contact with an inmate and that he completed the mandatory one-year
P.O.S.T. program without incident. Plaintiff has not shown that these training
programs were constitutionally deficient. See id. (citing Williams-El v. Johnson,
872 F.2d 224, 230 (8th Cir. 1989)). Plaintiff has pointed to some other deficiencies
in Berti‟s training, such as his entry into housing pods without another deputy
present. However, the deficient training must be “closely related to the ultimate
injury such that the deficiency in training actually caused the . . . offending
conduct.” Id. (internal quotation marks omitted) (quoting Canton, 489 U.S. at
391). Plaintiff fails to raise a question of fact on causation. For example, plaintiff
has not shown the failure to train Berti to properly enter inmate cells caused him to
commit rape. I therefore agree with the defendants that plaintiff cannot establish a
constitutional violation related to Berti‟s training. However, plaintiff alleges
deficiencies in training that go beyond Berti.
Defendants argue that there cannot be deficient training because the other
deputies and supervisors knew how to identify and were required to report sexual
harassment in the workplace. But neither of these principles address the real harm
alleged by plaintiff in this case: that Sheriff Toelke and Franklin County
implemented no policy or training designed to enable the deputies to identify
potential threats against inmates posed by jailors, and that had they been provided

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with proper training, other employees could have identified Berti as a threat and
prevented the attack on plaintiff.
Plaintiff has introduced evidence that the County has not trained its deputies
and officers in recognizing and preventing sexual harassment and abuse.
Defendants argue that this does not amount to a constitutional violation, because
the National Sheriff‟s Association Jail Officer’s Training Manual provided
sufficient training on “issues unique to working with female inmates.” However,
the defendants do not provide any information on the substance of the training, and
the only portion of the manual in the record focuses on officer safety.7 The County
harassment policy requires the reporting of sexual conduct when it affects the work
environment. Doc. 35-1 at p. 84. However, plaintiff has shown that despite this
policy, Berti‟s sexual harassment of at least two deputies and one other female
employee – including the forcible sexual assault of a deputy – went unreported and
undisciplined. Plaintiff‟s evidence also gives rise to the inference that unless the
victim actively exhibited signs that sexually aggressive behavior was unwanted,
there was no requirement that it be reported by an observing officer. “[T]he
existence of written policies of a defendant are of no moment in the face of

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The manual warns that male officers should, except in the case of emergency, be accompanied
by another officer because they “could be walking into a trap” where, for example, women
inmates “will use sexual activities or promises of sex to induce a male officer to do favors for
their boyfriends . . . who are also inmates.” Doc. 35-1 at p. 40.

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evidence that such policies are neither followed nor enforced.” Ware v. Jackson
County, Mo., 150 F.3d 873, 882 (8th Cir. 1998). A question of fact exists as to the
adequacy of the county‟s training procedures. A question of fact also exists as to
causation, because a jury could find that had department personnel received proper
training, Berti would not have been able to rape plaintiff. Cf. id. at 884–85
(finding causation from failure to supervise an employee who presents an obvious
risk).
The “inability or unwillingness of some prison administrators to take the
necessary steps to protect their prisoners from sexual and physical assaults” has
been described as a “national disgrace.” Walton, 2014 WL 2053835, at *9 (quoting
Martin v. White, 742 F.2d 469, 470 (8th Cir. 1984) (decrying failure to protect
inmates from other inmates)). It has been estimated that approximately twenty
percent of our country‟s inmates have been sexually assaulted by other inmates or
by corrections staff. Kevin R. Corlew, Congress Attempts to Shine a Light on a
Dark Problem: An in-Depth Look at the Prison Rape Elimination Act of 2003, 33
Am. J. Crim. L. 157, 159 (2006) (citations omitted). That training is needed to
enable jail personnel to identify actual and potential threats to inmates and prevent
their unconstitutional sexual assault by the jailers tasked with their protection is so
patently obvious that it need no further discussion.

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3.1.2 Failure to Protect and Supervise
The failure to adequately train jail personnel is closely tied to plaintiff‟s
failure to protect and failure to supervise claims. Jailhouse policies and procedures
do not exist in isolation; rather they form an interconnected web that must meet
minimum constitutional standards. Cf. Hutto v. Finney, 437 U.S. 678, 687–88
(1978) (noting that constitutional violations require consideration of
interdependent prison conditions). Plaintiff has provided evidence that the jail had
a block of cells that was only regularly monitored by cameras, that the monitoring
station was routinely left unattended, that procedural violations went unlogged, the
buddy system policy was unenforced, and supervisors were untrained in detecting
potential sexual assailants. There is some evidence that this laxness was common
amongst a significant portion of the relatively small jailhouse staff. “It is
fundamental that prison administrators are accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security.”
Falls v. Nesbitt, 966 F.2d 375, 379 (8th Cir. 1992). However, constitutional
violations arise where jail administrators disregard the very procedures that they
determine are essential to maintaining the safety of their inmates. Cf. Walton, 2014
WL 2053835, at *7 (finding question for jury regarding unconstitutional risk of
injury where jail left cells unlocked and conducted brief walkthroughs). It is a

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question of fact as to whether these collective failures were so obviously deficient
that they should have been remedied and as to whether they caused plaintiff‟s
harm.
3.2

Individual Capacity Claims

For Sheriff Toelke to have violated plaintiff‟s constitutional rights, it must be
shown that he (1) received notice of a pattern of unconstitutional acts committed
by subordinates; (2) demonstrated deliberate indifference to or tacit authorization
of the offensive acts; (3) failed to take sufficient remedial action; and (4) that such
failure proximately caused injury to the plaintiff. Otey v. Marshall, 121 F.3d 1150,
1155 (8th Cir. 1997). Deliberate indifference with respect to individual capacity
claims requires subjective, and not constructive, knowledge. Walton, 2014 WL
2053835, at *4.
Although plaintiff points to deposition testimony and police reports that
indicate the deputies who Berti harassed or assaulted might have told some
coworkers or Sergeant Delatorre about their problems with Berti, there are no facts
showing that this knowledge extended to Sheriff Toelke. In fact, plaintiff provides
no evidence that Sheriff Toelke actually knew of any deficiencies within the jail
related to supervision or protection. During Toelke‟s twenty-one year tenure, no
other inmate was sexually assaulted by a corrections officer, and only one deputy
sheriff was alleged to commit any sexual assault before Berti. Likewise, plaintiff

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adduces no evidence that Sheriff Toelke had actual knowledge that the jail
personnel were not reporting sexual harassment or assaults or that their training in
this aspect was deficient. Plaintiff therefore fails to show that Sheriff Toelke
exhibited deliberate indifference to any constitutional violation, and Sheriff Toelke
is entitled to summary judgment as to all claims against him in his individual
capacity.
Accordingly,
IT IS HEREBY ORDERED that defendants‟ for summary judgment [# 34]
is granted only as to the individual capacity claims against Sheriff Toelke. The
motion is denied in all other respects.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 28th day of May, 2014.

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