Upham v. Galant ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-2224
TROY JAMES UPHAM,
Plaintiff, Appellant,
v.
CHERYL GALLANT, AS PENOBSCOT COUNTY JAIL ADMINISTRATOR,
Defendant, Appellee.
____________________
DOUGLAS LITTLEFIELD,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
September 15, 2000
Per Curiam. Plaintiff/appellant Upham appeals the
grant of summary judgment to defendant/appellee Gallant.
Upham alleges that, while he was a pretrial detainee in the
Penobscot County Jail, his civil rights were violated by
Gallant, the jail administrator, because she failed to take
reasonable steps to ensure his safety from the violent
behavior of another inmate. We affirm, albeit on grounds
different from those relied upon by the court below.
Under the Eighth Amendment, "prison officials . .
. must 'take reasonable measures to guarantee the safety of
the inmates.'" Giroux v. Somerset County, 178 F.3d 38, 31
(1st Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825,
832 (1994) (internal quotations omitted)). While the
provisions of the Eighth Amendment do not extend to pretrial
detainees, the Due Process Clause of the Fourteenth
Amendment provides them with "rights [which] are at least as
great as the Eighth Amendment protections available to a
convicted prisoner." Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244 (1983); see also Henderson v.
Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999) ("Although
the Eight Amendment does not extend to pretrial detainees .
. . the Due Process Clause of the Fourteenth Amendment
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protects pretrial detainees under the same standard as the
Eighth Amendment."); Hare v. City of Corinth, 74 F.3d 633,
643 (5th Cir. 1996) (same). Consequently, a pretrial
detainee is entitled to have reasonable measures taken to
insure his safety. See, e.g., Lopez v. LeMaster, 172 F.3d
756, 759 (10th Cir. 1999) (prison officials are responsible
for taking reasonable measures to insure safety of pretrial
detainees).
Still, not every injury suffered by a prisoner or
pretrial detainee at the hands of a fellow inmate gives rise
to a constitutional violation, but only one which, inter
alia, results from the "deliberate indifference" of prison
officials to the inmate's safety. Giroux, 178 F.3d at 32.
Viewed in the light most favorable to Upham, the facts in
this case are insufficient to support a finding that Gallant
acted with deliberate indifference.
Upham alleges that Gallant caused his injury
because she failed to institute a policy which would have
prevented Upham's being assigned to a cell in which he was
exposed to danger. However, for a supervisor to be liable
under § 1983 for failure to control her subordinates, it
must be shown that her failure to act caused the violation
"in the sense that it could be characterized as supervisory
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encouragement, condonation, or acquiescence or gross
negligence amounting to deliberate indifference." Lipsett
v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir.
1988) (quotations omitted). Gallant's policy of leaving
cell assignment to the discretion of lower level jail
personnel, subject to administrative review, cannot be so
characterized. Moreover, "[a]n important factor in making
the determination of liability is whether the official was
put on some kind of notice of the alleged violations; for
one cannot make a 'deliberate' or 'conscious' choice to act
or not to act unless confronted with a problem that requires
the taking of affirmative steps." Id. (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 483 (1986)); see also Jane
Doe "A" v. Special School District, 901 F.2d 642, 645 (8th
Cir. 1990) (for supervisor to be subject to liability,
plaintiff must show, inter alia, that supervisor had
"received notice of a pattern of unconstitutional acts
committed by subordinates"). In the instant case, the
record fails to allege even a single prior incident which
might have put Gallant on notice that present procedures
were inadequate or that her failure to institute further
policies had resulted in, or in the future would likely
result in, the violation of an inmate's constitutional
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rights. Consequently, Gallant cannot be liable under
section 1983 for Upham's injuries.
Affirmed. See 1st Cir. Loc. R. 27(c).
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