Boss v. Morgan County et al

Filing 58

ORDER by Judge Nanette Laughrey granting in part and denying in part 50 motion to strike and granting in part and denying in part 27 motion for summary judgment. It is hereby ORDERED that Plaintiffs Motion to Strike [Doc. # 50] is GRANTED in par t and DENIED in part. It is further ORDERED that Defendants Motion for Summary Judgment [Doc. # 27] is GRANTED with respect to Counts I and III. It is further ORDERED that, with respect to Count II, Defendants Motion is GRANTED as to the individual defendants in their individual and official capacities only with regard to the issue of Bosss confinement related to her sleeping conditions, and as to Defendant Morgan County, Missouri, with regard to Bosss sleeping conditions and her privacy claim and DENIED as to the individual defendants in their individual capacities related to Bosss privacy claim as set forth herein.(Smith, Fran)

I N THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MISSOURI C E N T R A L DIVISION D O D D IE DENISE BOSS, Plaintiff, vs. M O R G A N COUNTY, MISSOURI, et al. D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C as e No. 2:08-cv-04195-NKL

ORDER P la in tif f Doddie Denise Boss ("Boss") brings this action under 42 U.S.C. §§ 1981, 1 9 8 3 , and 1985 against Defendants Morgan County, Missouri; Sheriff James Petty, in his in d iv id u a l and official capacities as Morgan County Sheriff; Tim Harlan, in his individual a n d official capacities as Morgan County Jail Administrator; Mike Nienhuis, in his individual a n d official capacities as Morgan County Deputy Sheriff; and John Doe(s) in their individual an d official capacities as Morgan County Deputy Sheriffs (collectively "Defendants"). In h e r complaint [Doc. # 1], Boss alleges: (1) failure to provide vital medical treatment in v io la tio n of the Fourth, Fifth, and Fourteenth Amendments, against all Defendants; (2) d e p ra v a tio n of life's necessities and disparate treatment in violation of the Fourth, Eighth, a n d Fourteenth Amendments, against all Defendants; and (3) failure to properly train and s u p e r v is e employees, against Morgan County and Defendant Petty. Pending before this C o u rt are Defendants' Motion for Summary Judgment [Doc. # 27] and Plaintiff's Motion to 1

S trike [Doc. # 50]. For the reasons stated herein, Defendants' Motion is GRANTED in part a n d DENIED in part. Plaintiff's Motion is GRANTED in part and DENIED in part. I. Factual Background 1 O n August 27, 2005, Boss was arrested in Morgan County, Missouri, on an o u t s ta n d i n g warrant for possession of a controlled substance. She was booked into the M o rg a n County jail that day, and at her booking interview she disclosed that she suffered f r o m various medical conditions, including bipolar disorder and manic depression. The m e d ic a l questionnaire filled out by a Morgan County jailer indicated that Boss was taking m e d i c a tio n for her psychiatric disorders, among other conditions. S o m e tim e after her booking, Boss was notified that Morgan County did not house f e m a le prisoners in its jail and that she would be transported to the Miller County jail. Until h e r transport to Miller County, Boss was housed in Morgan County's detox cell. The detox c e ll was a small room with no furniture, no mattress, two large windows on either side of the r o o m , a slightly elevated concrete pad on the floor, and a hole in the floor to be used for u rin a tio n . From the detox cell, Boss could be seen by jailers, police officers, and other

The Court has considered the parties' statements of undisputed fact which are supported by evidence. The Court deems admitted both parties' fact statements which have not been directly controverted. See Local Rule 56.1 ("Each fact in dispute shall be set forth in a separate paragraph, . . . and, if applicable, shall state the paragraph number in the movant's listing of facts that is disputed. All facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the opposing party."). In considering each parties' motion, the Court has drawn all inferences in favor of the non-movant. The Court's findings pursuant to Rule 56.1, deeming certain facts admitted, are reflected in the facts set forth below. 2

1

i n m a te s when they were brought in for booking as a door was right by the cell's window. W h i le Boss was in the detox cell, she was allowed to use the toilet in another inmate's h o ld in g cell for bowel movements. This inmate was removed from the holding cell when B o s s used this toilet. The toilet in this holding cell was located right across from a large w in d o w in plain view so Boss could be seen using this toilet by jailers, police officers, and o th e r inmates. Boss was held in the detox cell from the time of her booking at 3:28 p.m. on A u g u s t 27, until she was transported to Miller County, where she was booked at 9:21 p.m. th a t same day. A f t e r being transported to Miller County, Boss spoke to a nurse about her m e d ic a tio n s . While at Miller County, Boss experienced what she believed was a heart attack, a n d she informed the Miller County jailers of her condition. Miller County officials then c o n ta c te d Morgan County, advising Morgan County jailers that they were unable to continue h o ld in g Boss because of her medical condition. On August 28, a Morgan County Deputy S h e rif f was dispatched to collect Boss, and she was transported back to Morgan County. D u rin g her trip back to Morgan County, Boss experienced another attack and the deputy used h is radio to ask if he could get out and help her or call an ambulance. He was told to bring B o ss to the jail where a nurse would attend to her. U p o n her arrival back at the Morgan County jail, Defendant Neinhuis ordered Boss p la c ed back into the detox cell for holding and observation. Within approximately two-anda -h a lf hours, Boss was evaluated by a nurse who discussed with Boss her symptoms and

3

m e d ic a tio n s . The nurse informed Boss that certain medications were not currently available, b u t that the nurse would call and try to get them for Boss. The nurse was unable to obtain c u rre n t prescriptions. On August 29, Boss asked to see the nurse and to have her

m e d ic a tio n s , and the nurse informed her no prescription medications were available but gave h e r Tums to help with diarrhea and indigestion. W ith regard to her cell conditions upon her return to the Morgan County jail, Boss s p e n t the night of August 28 in the detox cell. On August 29, Boss was transferred to a h o ld in g cell, where she remained for the rest of her incarceration at the Morgan County jail. T h e holding cell had a large window on the wall and a small cell-door window. The holding c e ll contained a mattress placed directly on the floor, a blanket, a toilet, and a sink. While in the holding cell, Boss could be viewed doing everything in her cell, including using the to ilet, through the large window by law enforcement personnel, jailers, cafeteria workers, and in m a te s . During her first night in the holding cell, Boss attempted to cover the large window w ith toilet paper held in place by toothpaste but this was torn down by the jailers. At some p o in t, a magnet was placed over the small cell-door window because Boss was talking to her s o n , who was also housed at the Morgan County jail at the same time as Boss. B o ss asserts that she knew she could be seen using the toilet inside her holding cell b e c au s e her son told her that he saw her and because Boss could see inmates looking at her a n d heard comments, such as "Woo hoo." When Boss complained to one of the jailers about

4

th e toilet situation, she was told that the jail does not house females and to just "deal with it." A t one point, Boss started wrapping a blanket around her to cover herself up while on the to ile t. Boss was released from the Morgan County jail on August 31, 2005, and the charges a g a in s t her were subsequently dropped. II. D is c u s s io n A. P la in tiff's Motion to Strike

B o s s has moved this Court to strike Defendant Petty's affidavit, along with any p o r tio n s of Defendants' briefs which rely on the affidavit [Doc. # 50]. Both parties agree th a t portions of the affidavit are not based on personal knowledge and that it conflicts with D ef en d an t Petty's deposition testimony. After reviewing the parties' submissions, the Court f in d s that paragraphs 3 and 5-9 are not supported by personal knowledge. As a result, this C o u rt does not consider these paragraphs of the affidavit in its opinion. B. Summary Judgment Standard

S u m m a ry judgment is proper "if the pleadings, the discovery and disclosure materials o n file, and any affidavits show that there is no genuine issue as to any material fact and that th e movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving p a rty "bears the initial responsibility of informing the district court of the basis for its m o tio n " and must identify "those portions of [the record] which it believes demonstrate the a b se n c e of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to

5

re sp o n d by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 587 (1986). In determining whether summary judgment is appropriate, a district court m u st look at the record and any inferences to be drawn from it in the light most favorable to th e nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary ju d g m e n t is not proper if the evidence is such that a reasonable jury could return a verdict for th e nonmoving party. Id. at 248. C. Q u a lified Immunity

Q u a lif ie d immunity "protects government officials `from liability [in their individual c a p ac itie s] for civil damages insofar as their conduct does not violate clearly established s ta tu to ry or constitutional rights of which a reasonable person would have known.'" Pearson v . Callahan, 555 U.S. ---, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 8 0 0 , 818 (1982)). The immunity has been applied broadly, and it protects "all but the plainly in c o m p e te n t or those who knowingly violate the law." See Malley v. Briggs, 475 U.S. 335, 3 4 1 (1986). Because qualified immunity is an immunity from suit, as opposed to a mere d e f e n s e to liability, it is effectively lost if a case is allowed to go to trial, and the Supreme C o u rt has repeatedly stressed that district courts should resolve qualified immunity issues at th e earliest possible stage. See, e.g., Pearson, 129 S. Ct. at 815; Scott v. Harris, 550 U.S. 3 7 2 , 376 n.2 (2007); Hunter v. Bryant, 502 U.S. 224, 228 (1991). A qualified immunity analysis involves two questions: (1) was a constitutional right

6

v io la te d ; and (2) was the right clearly established such that a reasonable officer should have k n o w n his or her actions violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2 0 0 1 ). Recently, the Supreme Court granted district courts the freedom to address these two q u e stio n s in whichever order is more appropriate under the facts and circumstances of each c a s e . See Pearson, 129 S. Ct. at 821. 1. M e d ic a l Treatment

W h e n the state holds a person against his or her will, it accepts a constitutional duty to provide for that person's safety and well-being. County of Sacramento v. Lewis, 523 U.S. 8 3 3 , 851 (1998). A jailer who is deliberately indifferent to an inmate's medical needs is s u b je c t to suit under section 1983. McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009). T o establish deliberate indifference, Boss must prove that she had objectively serious m e d ic a l needs and that the jailers actually knew of those needs but deliberately disregarded th e m . Id. In the context of determining whether a jailer is entitled to qualified immunity in a suit alleging deliberate indifference to serious medical needs, a jailer "may rely on a m e d ic a l professional's opinion if such reliance is reasonable." Id. at 981; see also Meloy v. B a c h m e ie r, 302 F.3d 845, 849 (8th Cir. 2002) ("The law does not clearly require an ad m inistrat o r with less medical training to second-guess or disregard a treating physician's tre a tm e n t."); Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006) ("Except in the u n u su a l case where it would be evident to a layperson that a prisoner is receiving inadequate o r inappropriate treatment, prison officials may reasonably rely on the judgment of medical

7

p ro f e ss io n a ls ." (citation omitted)). In McRaven, the Eighth Circuit held that a prison o f f ic ia l's reliance on a nurse's recommendation was not reasonable because the prison o f f ic ia l knew about certain drugs consumed by the inmate, and the nurse's medical asse ssm en t was based on incorrect information because the nurse believed that the inmate's in to x ic a tio n was from alcohol and not drugs. 577 F.3d at 981. H e re , unlike McRaven, the jailers in this case reasonably relied on the nurse's medical o p in io n . Notably, Boss has not asserted a claim against the nurse in this case. Upon her r e tu r n to the Morgan County jail, Defendant Neinhuis ordered Boss placed back into the d e t o x cell for holding and observation. Within approximately two-and-a-half hours, Boss w a s evaluated by a nurse who discussed with Boss her symptoms and medications. The n u rse informed Boss that certain medications were not currently available, but she would call a n d try to get them for Boss. The nurse was unable to obtain current prescriptions and, th e re f o re , lacked the authority to dispense the drugs requested. She did give Boss Tums to h elp with diarrhea and indigestion. On these facts, the law does not clearly require jailers w ith less medical training to second-guess the nurse's decision in this case. See Meloy, 302 F .3 d at 849. Because the evidence established that Boss never suffered a heart attack, but in ste a d had a panic attack, the jailers reasonably relied on the nurse's opinion that Boss only n e e d ed Tums for her indigestion. At a minimum, there was no clearly established law to the c o n tra ry. Therefore, the jailers sued in their individual capacities are entitled to qualified im m u n ity on Count I as a matter of law.

8

2.

P r iv a c y and Disparate Treatment Count

B o s s 's arguments on her claim for privacy and disparate treatment fall into two c a te g o rie s: (1) that her Eighth Amendment rights were violated by being forced to sleep on a floor mattress in the holding cell and directly on the floor in the detox cell; (2) that her F o u rth , Eighth and Fourteenth Amendment rights to privacy were violated by being held in d e to x and holding cells where she could be viewed using the toilet by jail staff and inmates o f the opposite sex. With regard to the first category, the Eighth Circuit has already determined there was n o Eighth Amendment violation under circumstances more severe than those experienced by B o s s . The Eighth Circuit has held that floor sleeping and other such confinement conditions a re not actionable. O'Leary v. Iowa State Men's Reformatory, 79 F.3d 82, 83-84 (8th Cir. 1 9 9 6 ) (finding that several days without underwear, blankets, mattress, exercise or visitation d id not violate the Eighth Amendment); Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995) (f in d in g no violation where prisoner was placed in segregation without clothes, running w a te r, hygiene supplies, mattress, and legal mail for a period of four days). Thus, there is n o clearly established right that would justify stripping the individual defendants of qualified im m u n ity with regard to Boss's sleeping conditions. H o w e v e r, with regard to Boss's privacy claim, the Court finds that she has made a s u b m is s ib le case. Under Eighth Circuit law, "while inmates may lose many freedoms at the p ris o n gate, they retain at least some of their constitutional rights while confined." Timm v.

9

G u n te r, 917 F.2d 1093, 1099 (8th Cir. 1990) (citing Turner v. Safley, 482 U.S. 78, 84 ( 1 9 8 7 ) ). The Eighth Circuit has further recognized that inmates have a right to bodily p riv a c y, which must be weighed against institutional concerns of safety and equal e m p lo ym e n t opportunities. Id. at 1101 ("Whatever minimal intrusions on an inmate's p riv ac y may result from [opposite sex surveillance of male inmates by female guards], w h e th e r an inmate is using the bathroom, showering, or sleeping in the nude, are outweighed b y institutional concerns for safety and equal employment opportunities."); see also Fortner v . Thomas, 983 F.2d. 1024, 1030 (11th Cir. 1993) (recognizing "a prisoner's constitutional r ig h t to bodily privacy because most people have `a special sense of privacy in their genitals, a n d involuntary exposure of them in the presence of people of the other sex may be e s p e c i a lly demeaning and humiliating'" (quoting Lee v. Downs, 641 F.2d 1117, 1119 (4th C ir. 1981))); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (explaining that "we have little doubt that society is prepared to recognize as reasonable the retention of a limited right o f bodily privacy even in the prison context"). In prisoner rights cases, the Eighth Circuit conducts a balancing test of the Turner v. S a fle y factors to determine whether the privacy interest is outweighed by penal interests. See T im m , 917 F. 2d at 1099 n.8 ("Although Turner is a first amendment case, we believe its an alysis equally applies to other inmates' rights cases."). Thus, under Turner, there are four f a cto rs that are relevant in deciding whether the policy and conduct in this case is reasonable: F irs t, there must be a sufficient connection between the regulation and the g o v e rn m e n ta l interest used to justify the regulation. Second the availability of 10

a lte rn a tiv e means of exercising the right at issue must be considered. Third, c o n sid e ra tio n is required of the impact that accommodating the asserted right w o u ld have on guards, other inmates, and prison resources. Fourth, the a v a ila b ility of ready alterative to the regulation should be considered. T im m , 917 F.2d at 1099; see also Goff v. Harper, 235 F.3d 410, 414-15 (8th Cir. 2000) ("Not a ll four factors will be relevant to each case . . . . For example, the second Turner fa ctor­ av ailab ility of other avenues of exercising the right infringed upon­is much more m e a n in g f u l in the first amendment context than the fourth or eighth, where the right is to be f re e from a particular wrong." (quoting Michenfelder v. Sumner, 860 F.2d 328, 331 n.1 (9th C ir. 1988))). In this case, Morgan County maintains a jail that does not have a separate facility for w o m e n , yet Boss was confined in the Morgan County jail. Under the Turner factors, Boss's p riv a c y interest in not having her genitals exposed must be balanced against the Morgan C o u n ty jail's interest in safety of its inmates. As for her exposure to her jailers, her privacy in te re sts are outweighed by institutional concerns for safety and equal employment o p p o rtu n itie s . See, e.g., Timm, 917 F.2d at 1100-02. However, this case is not the typical " g u a rd viewing inmates" case. Rather, this case involves exposure of an inmate using the to ilet to law enforcement personnel, jailers, cafeteria workers, and inmates of the opposite s e x . Upon her arrival at the Morgan County jail, Boss was placed in the detox cell, which h ad windows that exposed her to more than just jailers. This cell had a hole in the floor, w h ic h Boss used for urination. Although Boss was moved to another inmate's cell when she n e e d ed to have a bowel movement, this cell also had windows and the toilet was open to the 11

re st of the jail population. W h e n Boss returned from the Miller County jail, she was again placed in the same d e t o x cell and later moved to a holding cell. Only when she was in the holding cell, did Boss h a v e access to a blanket, which she eventually used to cover herself up when she used the to ile t, which was also open to the rest of the jail population. Cf. Timm, 917 F.2d at 1102 (" T h e urinal is protected by a three-sided wall which, as the District Court found, permits an in m a te the opportunity to minimize the view of his genital area from the guard tower."). Defendants claim they needed to observe Boss once she returned from the Miller C o u n t y jail because of the medical condition that resulted in her return. Observation of Boss b y the jailers may have been important for her medical needs. However, Defendants fail to d e m o n s tra te why observation of Boss by other inmates and others coming into the jail was n e c e s s a ry. Cf. Hill v. McKinley, 311 F.3d 899, 902-03 (8th Cir. 2002) (holding that there was n o constitutional violation where detainee was required to walk through the jail nude in the p re se n c e of male guards where guards "closed windows and food slots on nearby cells" and w e re the only ones to observe the detainee naked). Further, Defendants fail to demonstrate w h y it was necessary to observe Boss through multiple large windows in her various cells o r why those windows could not be partially covered to at least obstruct other inmates' view o f her using the toilet. D e f en d a n ts present no evidence regarding whether Boss could have been sent to a f a c ility other than Miller County that does accommodate female inmates. Rather, Defendants

12

f a ile d to make any effort to protect Boss from exposure to other inmates in the jail, telling h e r that the Morgan County jail did not have separate facilities for females and that Boss s h o u ld just "deal" with it. Cf. Timm, 917 F.2d at 1101 (finding no privacy violation where g u a rd s viewed inmates of the opposite sex through a cell door because the "view through a c e ll window of an inmate using the toilet is restricted by the size and position of the w in d o w " ); see also Hill, 311 F.3d at 903-04 (holding that a detainee's Fourth Amendment rig h ts were violated where guards allowed a female pre-trial detainee to remain on a " re stra in e r board naked and spread eagle" in the presence of male guards without any ability to "minimize the privacy invasion by turning or covering herself," which occurred "for a su b stan tial period of time after the threat to security and safety had passed"). D e f en d a n ts failed to even provide Boss with de minimus protection, such as a simple c o v e rin g for her window, despite her repeated complaints about the conditions of her jail cell. N o n e th e le ss , it was possible to cover one of the small cell windows which was done when B o ss was caught trying to talk to her son. Boss also attempted to cover the window herself u s in g toilet paper and toothpaste but this was removed by a jailer. Under these facts, the th ird and fourth factors of Turner weigh in favor of finding a violation of Boss's c o n stitu tio n a l right to bodily privacy while in the Morgan County jail. Considering the lack o f an institutional need to expose Boss to the male inmate population and the ease with which a n accommodation could have been made, the Court concludes that Boss has submitted s u f f ic ie n t facts to support a finding that her constitutional rights were violated.

13

H a v in g concluded that the facts as alleged on summary judgment could support a f in d in g of a constitutional violation, the Court must analyze the second inquiry under q u a lif ie d immunity: whether the right was clearly established. "A right is clearly established o n ly if the contours of the right are so defined at the time of the incident that a reasonable o f f ic e r in the defendant's position would have understood that what he was doing violated th e law." Richmond v. City of Brooklyn, 490 F.3d 1002, 1007 (8th Cir. 2007). It is well settled that prison officials are given "wide-ranging deference" in the a d o p tio n and execution of policies and practices that, in their judgment, are necessary to p re s e rv e safety, order, and discipline in their facilities. Spence v. Farrier, 807 F.2d 753, 755 (8 th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). The Supreme Court has a ls o cautioned not to take too broad a view of what constitutes clearly established law. F o r a constitutional right to be clearly established, its contours "must be su f f icie n tly clear that a reasonable official would understand that what he is d o in g violates that right. This is not to say that an official action is protected b y qualified immunity unless the very action in question has previously been h e ld unlawful; but it is to say that in the light of preexisting law the u n la w f u ln e s s must be apparent." H o p e v. Pelzer, 536 U.S. 730, 739 (2002) (citation omitted) (quoting Anderson v. Creighton, 4 8 3 U.S. 635, 640 (1987)). "Thus, a precedential case need not be on all fours to clearly e sta b lish a constitutional violation, but it must be sufficiently analogous to put a reasonable o f f ic e r on notice that his conduct was unconstitutional." Hill, 311 F.3d at 904. A s far back as at least 1990, the Eighth Circuit has recognized that inmates have a lim ite d right to bodily privacy, holding that limited observation by opposite-sex guards does 14

n o t violate inmates' right to privacy. See Timm, 917 F.2d at 1102. In addition, Missouri law a n d Morgan County's written policies have defined the contours of acceptable treatment with re g a rd to male and female inmates. Missouri law requires that "[p]ersons confined in jails sh a ll be separated and confined according to sex." Mo. Rev. Stat. § 221.050. Morgan C o u n ty's written policy is to keep females housed "separately and out of normal sight and so u n d of the general male population." Morgan County Sheriff's Department, Adult

D e te n tio n Operational Procedures, § 2.3(D)(2) [Doc. # 35, Ex. I]. T h e jailers did not send Boss to a separate facility or cover up the windows in her v a rio u s jail cells so that she would not be exposed to other male inmates while using the toilet. R a th e r, when Boss complained about the toilet, she was told by one of the jailers that Morgan C o u n ty did not "house females and that is why the toilets are like that and to just deal with it." [ D o c . # 35, Ex. A, ¶ 37]. It is true that the Eighth Circuit in Hill v. McKinley held that the officers who violated a pretrial detainee's constitutional privacy rights by allowing her to be exposed to male guards f o r a significant period of time were entitled to qualified immunity given the "holdings in s e v e ra l other cases that prisoners have no general right not to be seen by guards of the o p p o s ite sex." 311 F.3d at 905. However, that was a case that involved guards viewing an in m a te of the opposite sex. This case involves the circumstance of inmates and other jail staff o f the opposite sex with no readily apparent need to see Boss using the toilet. Boss had a c le a rly established right not to be seen in such a position by other inmates, absent some

15

in s titu tio n a l justification. See, e.g., Timm, 917 F.2d at 1100 (8th Cir. 1990) (an inmate retains so m e privacy rights when entering a prison that must be balanced against legitimate in s titu tio n a l needs). Yet, Defendants have given no facially logical reason or explanation for th e ir exposure of Boss to other inmates. There is no evidence that she could not be taken to a n o th e r facility that would comply with Missouri law and Morgan County policy. There was n o emergency and accommodations could easily have been made. Even providing a blanket m a y have been enough. When there was a need by the jailers to cover one of the windows to p r e v e n t contact between Boss and the rest of the population because she was talking to her s o n , a cover for a window was readily located and used. In sum, the jailers in their individual capacities are entitled to qualified immunity on th e claims in Count II related to the issue of Boss's sleeping conditions at the jail but are not e n title d to qualified immunity on her privacy claim. D. M o rg a n County Liability

A local government cannot be held liable for its employees' unconstitutional acts under a respondeat superior theory. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 6 5 8 , 691 (1978). A local government may be held liable only if the plaintiff identifies a p a rtic u la r policy, custom, or practice that resulted in the alleged constitutional violations. Id. T h u s , a local government may be held liable on the theory that an action taken by the local g o v e rn m e n t violates federal law or directs an employee to do so. Id. A local government may a ls o be held liable on the theory that a facially lawful government action has led an employee

16

to violate a plaintiff's rights where such action "was taken with `deliberate indifference' as to its known or obvious consequences." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 4 0 7 (1997) (citing Canton v. Harris, 489 U.S. 378, 388-89 (1989)). Where a plaintiff asserts th a t the local government has not directly inflicted the injury but has caused an employee to d o so "rigorous standards of culpability and causation must be applied to ensure that the [local g o v e rn m e n t] is not held liable solely for the actions of its employee." Id. at 405. F in a lly, a local government may be held liable for failure to properly train its e m p lo ye e s, regardless of whether that failure was a result of official policy or unofficial c u s to m , if the county was on notice of its inadequate training. See Larkin v. St. Louis Hous. A u th . Dev. Corp., 355 F.3d 1114, 1117 (8th Cir. 2004). B e c au s e a suit against a county officer in his or her official capacity seeks to recover f ro m the county itself, the same Monell analysis applies. See Brandon v. Holt, 469 U.S. 464, 4 7 1 -72 (1985). Therefore, the individual defendants are also each entitled to summary ju d g m e n t to the extent they are sued in their official capacities if Morgan County is not liable. F o r the reasons stated below, the Court grants Defendants' motion for summary judgment on th e issue of Morgan County's liability. 1. M e d ic a l Treatment

W ith respect to Count I, Boss acknowledges that the Morgan County jail had numerous p o lic ie s in place to protect an inmate's right to adequate medical care, but argues that these p o lic ie s were violated in her case, which allegedly resulted in a violation of her constitutional

17

rig h ts [Doc. # 49, pp. 22-25]. "Under the Constitution, however, the range of acceptable m e d ic a l care is broad." Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2 0 0 9 ). In addition, an inmate's "mere difference of opinion over matters of expert medical ju d g m e n t or a course of medical treatment fail[s] to rise to the level of a constitutional v io la tio n ." Meuir v. Greene County Jail Employees, 487 F.3d 1115, 1118-19 (8th Cir. 2007) (qu o tin g Taylor v. Bowers, 966 F.2d 417, 421 (8th Cir.1992)). B o s s fails to come forward with any evidence pointing to any Morgan County "policy" o r "custom" that violated her right to adequate medical care. See, e.g., Drake ex rel. v. Koss, 3 9 3 F. Supp. 2d 756, 764 (D. Minn. 2005) ("Although Plaintiffs use the term `policy' in their o p p o s i t i o n memorandum and there is reference made to the County's suicide prevention p o l ic y, there is nothing in the record to support a finding that the County had any official p o lic y that arguably played a role in [Plaintiff's] attempted suicide."). Indeed, Boss argues th a t if Morgan County's written policies were followed, she would have suffered no violation. T h e se written policies provide, for example, that "each inmate is provided medical care from th e time of admission throughout the period of incarceration and until release. This

c o n tin u o u s care requires timely medical screening for new admissions, physical examinations f o r sentenced inmates and emergency care for all inmates." Morgan County Classification P o licy 9.1. The policies articulated by Boss are facially lawful and Boss does not demonstrate th a t any policy, written or otherwise, caused a deprivation of her right to medical care. B o s s also does not point to any widespread, permanent, or well settled practice of 18

v io la t in g the Morgan County policies regarding inmate medical care. Rather, in this case, w h e n Boss was transported back to the Morgan County jail, she was seen by a nurse within tw o and a half hours of her return. Because Boss cannot demonstrate a "policy" or "custom" th a t violated her right to adequate medical care, Morgan County and all defendants charged in their official capacities are entitled to summary judgment as a matter of law on Count I. 2. P r iv a c y and Disparate Treatment

T h e Court previously concluded that individual jailers were not entitled to qualified im m u n ity based on Boss's privacy claim. Nonetheless, Morgan County is not liable because B o ss has failed to meet Monell or Brown standards. In this case, Morgan County has a facially lawful policy of keeping male and female i n m a t e s out of sight and sound of each other. Nonetheless, it does not maintain a jail with s e p a r a te facilities for females. In order to demonstrate that Morgan County is liable because o f these policies, Boss must demonstrate that Morgan County was deliberately indifferent to th e known or obvious consequences of these policies to its female inmates. See, e.g., Moyle v . Anderson, 571 F.3d 814, 818 (8th Cir. 2009) ("Because the county's [written] policy was f a cia lly lawful and did not compel unconstitutional action, appellants have the high burden o f proving that the county's decision to maintain the policy was made with deliberate in d if f e re n c e to its known or obvious consequences."). Boss cannot demonstrate that a known or obvious consequence of maintaining a jail w ith o u t separate facilities for women would expose female inmates to the general male inmate 19

p o p u la tio n . Boss fails to allege facts demonstrating that such an incident occurred on any p rio r occasion, nor has she shown that the obvious consequence of maintaining a single g e n d e re d jail would lead to women being housed there when the county's policy is to keep w o m e n separate and in the past had resulted in women being taken to other facilities. Neither is Morgan County's policy so inadequate that it should have known a constitutional violation w a s inevitable. See, e.g., id. at 819 ("Appellants have not offered any evidence that the c o u n ty had notice of an alleged inadequacy in the booking policy or that the policy's alleged in a d e q u ac y was so patently obvious that the county should have known that a constitutional v io la tio n was inevitable."). As a result, the Court grants summary judgment in favor of M o r g a n County and all defendants charged in their official capacities. 3. T r a in in g and Supervision of Employees

A county and its officials can be held liable for any constitutional violation resulting f r o m a failure to adequately train employees if that failure rises to the level of "deliberate in d if f ere n c e." Larkin, 355 F.3d at 1117. "[To] survive a motion for summary judgment, [a p la in tif f ] must provide evidence that the [defendant] was on notice that its training procedures `w e re inadequate and likely to result in violation of constitutional rights.'" Id. (quotation o m itte d ). Notice is proven in two ways: (1) by showing that the failure to train "is so likely to result in a violation of constitutional rights that the need for training is patently obvious," T h e lm a D. ex. rel. Delores A. v. Bd. of Educ., 934 F.2d 929, 934 (8th Cir. 1991), or (2) by sh o w in g that "a pattern of misconduct indicates that the [defendant's] responses to a regularly 20

re c u rr in g situation are insufficient to protect the [plaintiff's] constitutional rights." P.H. v. S c h . Dist. of Kansas City, 265 F.3d 653, 660 (8th Cir.2001). B o s s has not demonstrated that Defendants were on notice that their training p ro c e d u re s were somehow inadequate or likely to result in a violation of Boss's constitutional rig h ts . Boss fails to assert any evidence of a specific training method she complains was in a d e q u ate . In fact, Boss does not provide any evidence of the existence, or nonexistence, of tra in in g materials. Without referencing the training received or not received, Boss cannot satisfy her burden of proof on failure to train. Moreover, Boss does not demonstrate that there is a pattern of misconduct in the Morgan County jail. Therefore, Morgan County and D ef en d an t Petty are entitled to summary judgment on Count III. III. Conclusion A c c o rd in g ly, it is hereby O R D E R E D that Plaintiff's Motion to Strike [Doc. # 50] is GRANTED in part and D E N IE D in part. It is further ORDERED that Defendants' Motion for Summary Judgment [Doc. # 27] is G R A N T E D with respect to Counts I and III. It is further ORDERED that, with respect to Count II, Defendants' Motion is GRANTED as to the in d iv id u a l defendants in their individual and official capacities only with regard to the issue o f Boss's confinement related to her sleeping conditions, and as to Defendant Morgan County,

21

M is s o u ri, with regard to Boss's sleeping conditions and her privacy claim and DENIED as to the individual defendants in their individual capacities related to Boss's privacy claim as s e t forth herein.

s/ Nanette K. Laughrey NANETTE K. LAUGHREY U n ite d States District Judge D a te d : October 20, 2009 Jefferson City, Missouri

22