Hardeman v. Kerr County Texas , 244 F. App'x 593 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 8, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-50636
BRANDI LYNN HARDEMAN
Plaintiff-Appellant,
v.
KERR COUNTY TEXAS, MOSES MARRERO,
In His Individual Capacity,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Texas, San Antonio Division
(04-CV-584)
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This case arises from jail guard Moses Marrero’s alleged rape
of Plaintiff-Appellant Brandi Lynn Hardeman while she was an inmate
at Kerr County Jail. Hardeman appeals the district court’s grant
of summary judgment in favor of Kerr County. At issue is whether
or not Kerr County was deliberately indifferent in its hiring and
supervision of Marrero. We affirm.
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In early 2002, Moses Marrero applied for employment as a
jailer in Kerr County, Texas. His application reflected that he
had previously worked as a police officer in the Harlandale
Independent School District (“Harlandale ISD”) from April 1992
until March 1994, and as a juvenile detention officer with the
Bexar County Juvenile Detention Center (“Bexar JDC”). Marrero did
not answer the application’s question as to whether he had ever
been fired, and did not sign the application certifying the
statements as true and correct.
Kerr County subsequently performed an applicant background
investigation on Marrero. Bexar JDC described Marrero as honest,
dependable and reliable. When asked if he was eligible for re-
hire, Bexar JDC referred Kerr County to its human resources
department, but there is no evidence that Kerr County continued the
inquiry. There is also no evidence that Kerr County contacted
Harlandale ISD. A record from the Texas Employment Commission,
however, indicates that Harlandale ISD fired him for making
“improper advances towards high school (female) students.” Kerr
County hired Marrero, effective March 11, 2002.
Not long after being hired, Marrero committed the first of
what would be several infractions over the short span of his
employment with Kerr County. On April 19, 2002, a jail
administrator counseled Marrero about “putting his hands on
inmates,” and being “too friendly” with female inmates. Ten days
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later, Marrero admitted to calling a female ex-inmate to establish
a sexual relationship. Kerr County suspended him two days without
pay. At that time, Marrero was also counseled for taking female
inmates out of the recreation yard and putting them back in their
cells without a female officer present. On May 21, Marrero called
a female inmate a “lazy ass bitch.” On July 8, Marrero called some
of the inmates “bitches,” among other names. He admitted his
actions, but added his own comment to the supervisor’s report,
asserting that “I will not let any inmate punk me out.” Kerr
County suspended Marrero another two days without pay and warned
him that “termination may result” in the future.
Hardeman alleges that Marrero entered her cell on July 26,
2002, forced her to perform oral sex on him, and took her into the
shower area where he forcibly raped her. After initially denying
any improper conduct, Marrero later admitted that he had
“consensual” sex with Hardeman.
Kerr County immediately suspended Marrero pending further
investigation, then terminated him on August 1, 2002. Marrero
subsequently pled guilty to the offense of Violation of Civil
Rights of a Person in Custody; Improper Sexual Activity, and is now
serving a five-year probated sentence. On July 1, 2004, Hardeman
filed this lawsuit in the district court, alleging that Kerr County
violated her rights under 42 U.S.C. § 1983 when Marrero attacked
her. Following discovery, Kerr County moved for, and the district
court granted summary judgment. Hardeman appeals.
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II. DISCUSSION
This Court reviews a grant of summary judgment de novo, using
the same criteria as the district court. Hanks v. Transcon. Gas
Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Summary
judgment is appropriate if the record reflects “that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
A court’s role at the summary judgment stage is not to weigh the
evidence or determine the truth of the matter, but rather to
determine only whether a genuine issue exists for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Kerr County acknowledges that Marrero had sexual relations
with Hardeman during her incarceration and that he was convicted
for that offense. The County, however, maintains that it is not
liable for Marrero’s actions. In order to hold a municipality
liable under 42 U.S.C. § 1983 for its employee’s acts, a Plaintiff
must show that a policy of hiring or supervising caused those acts.
It is not enough for a § 1983 Plaintiff to merely identify conduct
properly attributable to the municipality, but rather, the
Plaintiff must demonstrate that “the municipality, through its
deliberate conduct, was the ‘moving force’ behind the injury
alleged.” Bd. of County Comm’rs of Bryan County, Okla. v. Brown,
520 U.S. 397, 404 (1997). Hardeman argues that liability arises
from both the hiring and the supervision of Marrero. We consider
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each potential basis in turn.
A. Kerr County is not liable based on hiring Marrero.
The Supreme Court has established two fundamental requirements
for holding a city liable under § 1983 for inadequate hiring
policies. First, the municipal policy must have been adopted with
“deliberate indifference” to its known or obvious consequences.
Snyder v. Repagnier, 142 F.3d 791, 795 (5th Cir. 1998). Second,
the municipality must be the “moving force” behind the
constitutional violation. Id. For Kerr County to be liable based
upon hiring Marrero, we must find that adequate scrutiny of his
background would have led a reasonable supervisor to conclude that
the plainly obvious consequence of hiring him would have been the
alleged rape of a female inmate. See Gros v. City of Grand
Prairie, 209 F.3d 431, 433–34 (5th Cir. 2000) (quotations
omitted)(“[D]eliberate indifference exists where adequate scrutiny
of an applicant’s background would lead a reasonable supervisor to
conclude that the plainly obvious consequences of the decision to
hire would be the deprivation of a third party’s constitutional
rights.”). Even a showing of heightened negligence in hiring will
not give rise to a constitutional violation. Id. at 434(“[D]eliberate indifference to the known or obvious consequences of
a hiring decision can amount to a constitutional violation on the
part of the decision maker, but a showing of simple or even
heightened negligence will not suffice.”).
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There must be a strong connection between the background
of the particular applicant and the specific violation
alleged. Accordingly, plaintiffs cannot succeed in
defeating summary judgment merely because there was a
probability that a poorly-screened officer would violate
their protected rights; instead, they must show that the
hired officer was highly likely to inflict the particular
type of injury suffered by them.
Id.It is obvious that Kerr County should have done a better job
screening Marrero. His omission of answers to key questions,
such as whether he had previously been fired, alone should have
been cause for alarm. Furthermore, had the County contacted
Harlandale ISD it likely would have learned that the district
fired Marrero for making improper advances towards female
students. Such information may have prompted the County to
rethink hiring him for a position that would place him in close
proximity to female inmates on a regular basis. Even if the
County was negligent in hiring him, however, that still is not
sufficient to hold the County liable for the constitutional
violation. Id. at 433 (stating that “a showing of simple or
even heightened negligence will not suffice”).
There are no grounds to find that the alleged rape in
question was a “plainly obvious consequence” of hiring him. Id.Even if the County had done a thorough job of investigating
Marrero, there was absolutely no history of violence, sexual or
otherwise, to be found. While the grounds for his discharge from
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Harlandale ISD were troubling, especially in retrospect, it
requires an enormous leap to connect “improper advances” towards
female students to the sexual assault at issue here. Id. (“There
must be a strong connection between the background of the
particular applicant and the specific violation alleged.”).
Because Hardeman cannot establish that Marrero was highly likely
to commit rape, there is no genuine issue of material fact, and
summary judgment was proper as to the hiring of Marrero.
B. Kerr County is not liable based on its supervision of
Marrero.
The rape was a “discrete, episodic act . . . committed with
deliberate indifference” to the Plaintiff’s rights. Scott v.
Moore, 114 F.3d 51, 54 (5th Cir. 1997) (en banc). In order for
the County to be liable, however, the Plaintiff must put forth
facts “sufficient to demonstrate that the [rape] resulted from a
municipal custom, rule, or policy adopted or maintained with
objective deliberate indifference to the detainee’s
constitutional rights.” Id. (citations omitted). As with hiring
decisions, this is a hefty burden for the Plaintiff to meet.
There is no real question that Kerr County maintained any
official rules or policies, including training, with deliberate
indifference to detainees’ constitutional rights. It assuredly
did not. To the contrary, Kerr County set in place a variety of
regulations to assure the protection of detainees’ rights. New
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guards receive a copy of the policy manual and undergo an
informal training program. The County’s policy prohibits any
person from engaging in any form of sexual misconduct with an
inmate, even if consensual on the part of the inmate. Staff
members are required to report any violations to the jail
administrator or sheriff. The jail’s policies dictate that a
male guard conducting “checks” on a female inmate is required to
summon a female officer. If a female officer is not available,
the male guard must notify the control room so that monitoring
can take place. Actions and regulations such as these, as we
indicated in Scott, “indicate[] not apathy, but concern.” 114
F.3d at 55.
Marrero’s supervisors warned him not to touch the inmates,
told him that he could not pursue relationships with past or
present inmates, and counseled him about the jail’s rules on
multiple occasions. Within a short time, he nevertheless
violated what he knew were the rules and policies of the jail and
raped Hardeman. As unfortunate as that turn of events was, Kerr
County is not liable. At most, it could be argued that the
County was negligent in not firing Marrero after his earlier
violation of the jail rules. Mere negligence, however, is not a
basis to impose liability on the County in this situation. See
Gros, 209 F.3d at 433. We find that the County did not display
deliberate indifference in supervising Marrero, and is not
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liable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment.
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