Bass v. Pottawatomie County Public Safety Center

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 7, 2011
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
JOHNNY L. BASS,
Plaintiff-Appellee,
No. 10-6215
v. (D.C. No. 5:06-CV-00397-M)
(W.D. Okla.)
POTTAWATOMIE COUNTY
PUBLIC SAFETY CENTER,
Defendant-Appellant,
and
JERRY GOODWILL,
Defendant.
ORDER AND JUDGMENT *
Before MATHESON, McKAY, and EBEL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In this civil rights case brought under 42 U.S.C. § 1983, a jury in the
Western District of Oklahoma found that Defendant Pottawatomie County Public
Safety Center (the “Jail”) 1 violated Plaintiff Johnny L. Bass’s federal due process
rights as a pre-trial detainee by acting with deliberate indifference to his safety.
The jury reached its verdict after hearing evidence that Mr. Bass was brutally
assaulted by another detainee while awaiting booking and classification in an
intake holding cell following his arrest for driving under the influence of alcohol.
As compensation for the severe injuries he suffered in the assault, the jury
awarded Mr. Bass damages in the amount of $330,000, and the district court
subsequently entered a judgment in favor of Mr. Bass for that amount.
The Jail now appeals, arguing that: (1) the jury’s verdict in favor of Officer
Goodwill is inconsistent with its verdict against the Jail; and (2) there was
insufficient evidence to impose municipal liability on the Jail under § 1983 for
maintaining a custom and/or policy that was deliberately indifferent to a
substantial risk of serious harm to intoxicated detainees such as Mr. Bass.
Exercising jurisdiction under 28 U.S.C. § 1291, we reject the Jail’s inconsistent
verdict claim and hold that there was sufficient evidence presented at trial to
1
As the Jail explained in its opening brief, “[t]he Pottawatomie County
Public Safety Center . . . is a public trust organized under Title 60 of the
Oklahoma Statutes for the purposes of the operation and management of the jail
and detention facilities of Pottawatomie County, Oklahoma, and constitutes a
separate and distinct legal entity under Oklahoma law.” Aplt. Opening Br. at 8
n.2 (citing Okla. Stat. tit. 60, § 176.1(A)(2)).
-2-
support the jury’s finding that the Jail’s policy and/or custom of commingling
unclassified, intoxicated detainees with unclassified, non-intoxicated detainees at
the discretion of the detention officer when the intake facility was overcrowded
was deliberately indifferent to a substantial risk of serious harm to such
intoxicated detainees. Accordingly, we affirm the district court’s judgment and
its subsequent order denying the Jail’s motion for judgment as a matter of law
under Fed. R. Civ. P. 50(b).
I. BACKGROUND
Because the jury found only municipal liability under § 1983, we focus our
background discussion on the salient facts pertaining to the jury’s decision to
impose municipal liability on the Jail for following an unconstitutional policy
and/or custom in the way it detained intoxicated detainees. Because we are
concerned only with the question of municipal liability, many of the specific (and
hotly disputed) facts concerning the events that occurred in the Jail on the night
that Mr. Bass was assaulted are not directly relevant to the issues in this appeal.
We will therefore only discuss the specific circumstances surrounding the assault
to the extent necessary to resolve the question of municipal liability.
For our purposes, the key evidence presented at trial was the following.
First, Mr. Bass was intoxicated when he arrived at the Jail, yet Defendant
Goodwill placed him in a holding cell with a non-intoxicated detainee. Given
these facts and the other evidence presented at trial, the jury could have
-3-
concluded that the Jail violated the Oklahoma Department of Health’s Minimum
Jail Standards for housing intoxicated prisoners. See Okla. Admin. Code
§ 310:670-5-5(5) (“Prisoners who are intoxicated . . . shall be housed separately
from other prisoners until such time as the medical authority or jail administrator
determines their suitability for placement into general population or appropriate
housing.”). These standards were adopted by the State of Oklahoma as a safety
measure to protect intoxicated inmates due to their impaired and vulnerable
condition.
Second, while the Jail generally tried to separately hold intoxicated
detainees in what was known as the “drunk pod” prior to their formal booking and
security classification, the Jail had an unwritten policy and/or custom of allowing
its detention officers to commingle unclassified, intoxicated detainees with
unclassified, non-intoxicated detainees in the drunk pod when the intake facility
was overcrowded. On the night that Mr. Bass was arrested, the intake facility was
crowded, so Officer Goodwill placed Jason Grass, a non-intoxicated detainee, in
the drunk pod together with four other detainees. Approximately forty minutes
later, Officer Goodwill also placed Mr. Bass in the drunk pod, and, within a
matter of minutes, Jason Grass viciously assaulted Mr. Bass, causing severe
injuries to his face in the form of multiple broken or shattered bones.
Third, the Jail recognized that it was necessary from a safety perspective to
closely supervise detainees who were waiting to be booked and had not yet
-4-
received a security classification. Specifically, the Jail had a written policy that
provided as follows: “To ensure the safety of arrestees, inmates, staff and
visitors, and to maintain the security of the booking area, the accepting officer
supervises persons held in the booking area at all times.” Aplt. App. at 237.
Further, the jury was informed by Mr. Bass’s expert witness that this “policy goes
on . . . to say . . . that the accepting officer closely watches all arrestees in the
booking area and holding cells for mood and behavior changes.” Id. at 240-41.
As the expert explained, such close supervision is necessary due to the likelihood
that detainees with different security classifications (i.e., minimum versus
maximum) will be mixed together in the booking area and holding cells during the
time they are waiting to be formally booked and classified. Id. at 242-43.
Consistent with this testimony, Rodney Bottoms, the executive director of the Jail
at the time of the events in question, confirmed the need to have policies and
procedures in place that provide for close supervision of detainees at the intake
facility. Id. at 82-83.
To summarize, the State of Oklahoma’s policy against commingling
intoxicated and non-intoxicated detainees and the Jail’s written policy requiring
close supervision of unclassified detainees together demonstrate the existence of a
substantial risk of serious harm to intoxicated detainees who are commingled with
other detainees prior to classification. Mr. Bass was intoxicated when he arrived
-5-
at the intake facility, he was placed together with an unclassified, non-intoxicated
detainee, and he was brutally assaulted by the other detainee.
II. ANALYSIS
A. Inconsistent Verdict Claim.
Before addressing the evidentiary issues in this case, we must address the
Jail’s claim that the jury returned inconsistent verdicts. The Jail claims that,
because it cannot be held liable under § 1983 for Mr. Bass’s injuries under
principles of municipal liability unless Officer Goodwill violated Mr. Bass’s
constitutional rights, see Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir.
1993) (“[a] municipality may not be held liable where there was no underlying
constitutional violation by any of its officers”), the jury’s verdicts are inconsistent
since it returned a verdict in favor of Officer Goodwill, but still imposed
municipal liability on the Jail, see Aplt. Br. at 8 (“Because the verdict in favor of
Goodwill necessarily includes a finding that Goodwill’s actions were reasonable,
not deliberately indifferent to a substantial risk of serious harm to Bass, and
therefore were not unconstitutional, that verdict is inconsistent with the verdict
against the jail.”). As the district court pointed out in its order denying the Jail’s
motion for judgment as a matter of law, however, “this assertion ignores the
affirmative defense of qualified immunity which was asserted on behalf of
defendant Goodwill.” Aplt. App. at 451. It is also based on the faulty premise
-6-
that the jury necessarily found that Officer Goodwill did not violate Mr. Bass’s
constitutional rights.
To assert an inconsistent verdict claim, a party challenging a general jury
verdict must show that they objected to the verdict prior to the jury’s discharge.
See Oja v. Howmedica, Inc., 111 F.3d 782, 790 (10th Cir. 1997). Because the Jail
failed to lodge such an objection to the jury’s general verdict in this case, the Jail
must show that the verdict is facially inconsistent such that entry of judgment
upon the verdict is plain error. Id. In determining whether the verdict is
inconsistent, we accept any reasonable explanation that reconciles the jury’s
verdict. See Domann v. Vigil, 261 F.3d 980, 983 (10th Cir. 2001).
We begin our analysis by noting that the Jail is not challenging any of the
jury instructions that were used by the district court at the trial of this case. We
also note that counsel for defendants submitted the two instructions regarding
Officer Goodwill’s affirmative defense of qualified immunity to the district court,
see R., Doc. 143 at 3-4, and the district court used the instructions that were
tendered by counsel for defendants when it instructed the jury about qualified
immunity, see Aplee. App. at 18-19. Further, the instructions tendered by counsel
for defendants permitted the jury to render the verdicts it returned, and the
verdicts are in no way facially inconsistent.
In Instruction No. 15, the district court instructed the jury as follows with
regard to Mr. Bass’s failure to protect claim against Officer Goodwill:
-7-
In order to prove Plaintiff’s failure to protect claim against
Defendant Jerry Goodwill, Plaintiff must demonstrate by the greater
weight of the evidence the following:
1. Defendant Jerry Goodwill knew or should have known that
placing Plaintiff in the [drunk pod] with Jason Grass posed a
substantial risk of serious harm to Plaintiff;
2. Defendant Jerry Goodwill was deliberately indifferent to
Plaintiff’s safety; and
3. Defendant Jerry Goodwill’s conduct caused substantial
harm to Plaintiff.
Id. at 17.
The district court then gave two instructions regarding qualified immunity.
In Instruction No. 16, the court instructed the jury as follows:
If you find that Plaintiff has proven his claim, you must then
consider the affirmative defense of Defendant Jerry Goodwill that his
conduct was objectively reasonable in light of legal rules clearly
established at the time of the incident at issue and that he is therefore
not liable. This defense is known as qualified immunity.
The qualified immunity defense recognizes that it is sometimes
difficult for an officer to determine how the relevant legal doctrine,
here protection of a detainee, will apply to the factual situation the
officer confronts. An officer might correctly perceive all of the
relevant facts but have a mistaken understanding as to what the
Constitution requires as protection of detainees in those
circumstances. If the officer’s mistake as to what the law requires is
reasonable, however, the officer is entitled to the qualified immunity
defense.
Id. at 18. In Instruction No. 17, the court then added the following:
You are instructed that Defendant Jerry Goodwill cannot be
held liable to Plaintiff in the event that you determine he is entitled
to qualified immunity for his actions. If you find, after considering
-8-
all the evidence before you, that the actions of defendant Jerry
Goodwill were such that a reasonable person would have believed
them to be lawful and not violative of some established statutory or
constitutional right, which a reasonable person would have known,
Defendant Jerry Goodwill is entitled to qualified immunity.
Id. at 19.
These instructions clearly contemplated that the jury could find:
(1) that Officer Goodwill was deliberately indifferent to Mr. Bass’s safety and
therefore violated Mr. Bass’s constitutional rights; but (2) that Officer Bass was
not liable to Mr. Bass for the violation because he made a reasonable mistake as
to what the law required in terms of protecting Mr. Bass from other detainees. As
the introductory sentence in Instruction No. 16 stated, “[i]f you find that Plaintiff
has proven his claim, you must then consider the affirmative defense of
Defendant Jerry Goodwill that his conduct was objectively reasonable in light of
legal rules clearly established at the time of the incident and that he is therefore
not liable.” Id. at 18 (emphasis added). Accordingly, there is a reasonable
explanation that reconciles the jury’s verdicts, and the explanation is that the jury
found that Officer Goodwill violated Mr. Bass’s constitutional rights, as
necessary to support its verdict against the Jail under principles of municipal
liability, but the jury did not impose liability against Officer Goodwill because it
found that he nonetheless acted reasonably and was therefore entitled to qualified
immunity.
-9-
The Jail’s facially appealing response to this explanation is that
the jury could not have found that Goodwill both violated Bass’s
constitutional rights and that he acted ‘objectively reasonably’ . . .
[because] a jail employee who knowingly and recklessly disregards a
substantial risk of serious harm to an inmate would, by definition, be
acting in an objectively unreasonable manner which would preclude a
qualified immunity defense.
Aplt. Opening Br. at 11. But this argument fails for two reasons. First, if correct,
this argument means that the jury should not have been instructed on qualified
immunity in this case, and the Jail has never made such an argument either below
or before this court. Second, it ignores the leading Supreme Court case law in
this area which establishes that the reasonableness inquiry for purposes of the
affirmative defense of qualified immunity is separate and distinct from the
question of whether a government official had the mens rea required for the
underlying constitutional violation. See Saucier v. Katz, 533 U.S. 194, 203-06
(2001) (excessive force claim), overruled in part on other grounds by Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009); Anderson v. Creighton, 483 U.S. 635, 643
(1987) (unlawful search claim).
In sum, because the jury was properly instructed that it could not impose
liability on Officer Goodwill if he acted reasonably in the qualified immunity
sense, even if it also found that he violated Mr. Bass’s constitutional rights, the
jury’s verdicts were not facially inconsistent and there was no plain error.
-10-
B. Sufficiency of the Evidence Against the Jail.
In reviewing the sufficiency of the evidence to support the jury’s verdict
against the Jail, the procedural focus of this appeal is the district court’s denial of
the Jail’s post-judgment motion for judgment as a matter of law under Fed. R.
Civ. P. 50(b). “[T]his court reviews de novo the district court’s denial of a
motion for judgment as a matter of law[.]” Cummings v. Gen. Motors Corp., 365
F.3d 944, 949 (10th Cir. 2004), abrogated in part on other grounds by Unitherm
Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). “We will reverse
only if there is no legally sufficient evidentiary basis with respect to a claim or
defense under the controlling law.” Id. (internal quotation marks and alterations
omitted). As we have further explained:
To overturn a denial [of a motion for judgment as a matter of
law], we must conclude that, viewed in the light most favorable to
the non-moving party, the evidence and all reasonable inferences to
be drawn from it point but one way, in favor of the moving party.
That is, the [moving party] must demonstrate that there are no
reasonable inferences supporting the jury’s verdict. In reviewing the
record, we will not weigh the evidence, judge witness credibility, or
challenge the factual conclusions of the jury. Most importantly, we
may not substitute our judgment for that of the jury.
Rocky Mountain Christian Church v. Bd. of County Comm’rs, 613 F.3d 1229,
1235-36 (10th Cir. 2010) (internal quotation marks and citations omitted).
As set forth above, Mr. Bass was being held in the Jail as a pretrial detainee
at the time he was assaulted. The Due Process Clause of the Fourteenth
Amendment protects pretrial detainees from unconstitutional conditions of
-11-
confinement to the same extent that the Eighth Amendment protects convicted
criminals. See Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992); Craig
v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). As a result, in the case of a
pretrial detainee such as Mr. Bass, unconstitutional conditions of confinement can
include violence at the hands of other prisoners if prison officials are deliberately
indifferent to substantial risks of serious harm. See Farmer v. Brennan, 511 U.S.
825, 833-34 (1994). Moreover, “[i]n the Tenth Circuit [a] . . . municipality acts
with deliberate indifference if its conduct (or adopted policy) disregards a known
or obvious risk that is very likely to result in the violation of a prisoner’s
constitutional rights.” Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996)
(internal quotation marks omitted).
“In this case, we review the sufficiency of the evidence against the
controlling law, which we find to be properly stated in the district court’s
[unchallenged] jury instructions.” Rocky Mountain Christian Church, 613 F.3d
at 1236. Specifically, as relevant to the issues raised in this appeal with regard to
Mr. Bass’s failure to protect claim against the Jail, the jury was instructed that
Mr. Bass had to demonstrate by a greater weight of the evidence that the Jail
“maintained a policy and/or custom which created a substantial risk that [he]
would be seriously harmed.” See Aplee. App. at 10. Further, Mr. Bass was
required to show that the Jail was “deliberately indifferent to [his] safety.” Id.With regard to the latter showing, the jury was instructed as follows:
-12-
Deliberate indifference requires more than negligence or even
gross negligence. An inadvertent failure to protect and the fact that
an assault occurs is not sufficient to establish deliberate indifference.
Deliberate indifference is established only if there is actual
knowledge of a specific and substantial risk that Plaintiff would be
assaulted and Defendants intentionally, willfully or recklessly
disregarded that risk. Mere negligence does not constitute deliberate
indifference.
Plaintiff, at a minimum, must establish that Defendants
possessed a sufficiently culpable state of mind. In order to meet his
burden of proof, Plaintiff must show that Defendants were aware of
and disregarded an excessive and specific risk to Plaintiff’s safety.
Id. at 15.
Having carefully reviewed the trial testimony and other evidence in this
case, and viewing all the evidence in Mr. Bass’s favor, we conclude that the jury
was presented with sufficient evidence to support reasonable inferences that:
(1) the Jail maintained a policy and/or custom of permitting jailors to commingle
unclassified, intoxicated detainees with unclassified, non-intoxicated detainees,
and the Jail’s policy and/or custom created a substantial risk that intoxicated
detainees such as Mr. Bass would be seriously injured; (2) the Jail was aware of
the substantial risk that intoxicated detainees such as Mr. Bass would be
assaulted; (3) the Jail disregarded the risk by allowing jailors to inadequately
supervise the drunk pod; and (4) the Jail’s deficient supervision practices were a
proximate cause of Mr. Bass’s injuries.
To begin with, based on the evidence introduced at trial regarding the State
of Oklahoma’s Minimum Jail Standards and the Jail’s own internal policies
-13-
requiring close supervision of unclassified detainees, we believe the jury, relying
on its own common sense and intuition, could reasonably infer that the Jail
maintained a policy and/or custom that was deliberately indifferent to a
substantial risk that commingled intoxicated detainees such as Mr. Bass would be
assaulted and seriously injured. 2 This does not end our inquiry, however,
because, in accordance with the jury instructions, we must also determine whether
Mr. Bass presented sufficient evidence to show that the Jail “intentionally,
willfully or recklessly disregarded” the risk it created and was aware of. See
Aplee. App. at 15. Having carefully considered the trial testimony of Christy
Gunter and Officer Goodwill, and viewing this issue as part of the deliberate
indifference inquiry, we conclude that he did.
Although the evidence introduced at trial showed that Christy Gunter, the
booking clerk, would watch a closed-circuit television monitor that is located on
her desk and hooked up to a camera in the drunk pod, Ms. Gunter testified that
she only looked up at the monitor “occasionally” or “when [she] had the time.”
Aplt. App. at 317. This was because Ms. Gunter had numerous other duties that
she also had to perform. Id. at 98-100, 314-17. Nonetheless, Ms. Gunter readily
acknowledged that commingled detainees in the drunk pod needed to be closely
2
As we have concluded, the policies and/or customs at issue in this case are
sufficient in themselves to show the substantial risk of serious harm that they
address. Thus, Mr. Bass did not have to put forth evidence showing that there
had been similar assaults previously at the Jail.
-14-
supervised because it was “very foreseeable” that the pod would contain a mix of
maximum security detainees and minimum security detainees, id. at 320-21, and
Officer Goodwill likewise testified regarding the need for close supervision of the
drunk pod, id. at 151-52. According to the testimony of Officer Goodwill,
however, it was difficult for Ms. Gunter to provide the needed close supervision
given all of her other job duties. Id. at 146-47. In fact, on the night in question,
Ms. Gunter did not notice that anything was amiss in the drunk pod until she
observed Mr. Bass lying on the floor of the pod, which was after he was assaulted
by Jason Grass. Id. at 334-35.
On the night Mr. Bass was assaulted, Officer Goodwill was the only other
Jail employee at the intake facility. 3 During the approximately forty minutes that
elapsed between the time that Officer Goodwill placed Jason Grass in the drunk
pod and the time that he placed Mr. Bass in the drunk pod, Officer Goodwill was
passing out meals to other detainees and performing other duties, but he testified
that he was always within “earshot” of the drunk pod. Id. at 172, 179. But
regardless of whether he was always within earshot of the drunk pod, Officer
3
Ms. Gunter testified that there normally would be one additional Jail
employee who was a “roamer-type” and would go “back and forth between the
county and the city jail,” but she did not recall that person being on duty on the
night in question. See Aplt. App. at 311. There was no other reference to this
“roamer-type” during the trial, however, so it is not clear what the roamer’s duties
entailed.
-15-
Goodwill acknowledged that some form of “eye-on observation” is still necessary.
His specific testimony was as follows:
Q. Mr. Goodwill, we have a situation where you have a crowded jail,
a noisy jail, a busy night, is it your testimony that during the 40
minutes, or thereafter, that you could hear what is going on in [the
drunk] pod at all times?
A. A general conversation like we are having right now, probably
not, but somebody whooping and hollering and yelling for help, yes,
I would have.
Q. Whether or not they were whooping or hollering and calling for
help, there needs to be some type of eye-on observation, as well as
being able to hear, would you agree?
A. I understand that’s what the monitors were for.
Id. at 196. Officer Goodwill further testified that, when he was performing his
duties of going from cell to cell throughout the intake facility to pass out meals to
other detainees, “[he] would rely on Ms. Gunter to be watching the camera.”
Id. at 151.
Based on the testimony of Christy Gunter and Officer Goodwill, we believe
the jury could reasonably infer that the Jail’s supervision practices (i.e., only
“occasionally” watching the television monitor and remaining only within
“earshot” of the drunk pod) 4 were deliberately indifferent to a substantial risk that
4
The jury could reasonably infer that the conduct of Christy Gunter and
Officer Goodwill reflected the Jail’s relevant supervision practices because, as
their testimony indicated, their conduct was a function of the official job duties
assigned to them. Further, the Jail put forth no evidence suggesting that they
(continued...)
-16-
intoxicated detainees such as Mr. Bass would be assaulted. Importantly, we also
believe the jury could have drawn a reasonable inference that these deficient
supervision practices were a proximate cause of Mr. Bass’s injuries.
With regard to causation, the most significant evidence presented at trial
was the written statement of one of the other detainees who was being held in the
drunk pod at the time Jason Grass was placed in the pod. As presented during the
trial through a colloquy between counsel for Mr. Bass and Officer Goodwill, the
statement was as follows:
Q. (By Mr. Bisher) This statement was obtained through
Mr. Glandon, the internal affairs investigator; is that correct?
A. I would guess so, yes.
Q. The second page of this is actually the handwritten statement of
Mr. Martinez and then Mr. Glandon had it translated, did you
understand that?
A. Yes.
Q. “On Wednesday, 6/5/03,” that’s the date . . . Jason Grass, and
Johnny Bass were arrested, correct?
A. Yes.
Q. “In the evening between 6 p.m. and 7 p.m., I, Manuel Martinez,
was locked up in the jail with another three young prisoners.
Everybody was peaceful until another prisoner entered. He had long
hair and tattoos on his body. He acted desperate. He started to
scream, looked like he was talking to friends in another cell, and
4
(...continued)
were in any way acting contrary to the Jail’s customary practices.
-17-
[was] hitting the door very hard over and over. Later, the food
arrived,” that’s when you were feeding; is that correct?
A. I would assume so, yes.
Q. “Later the food arrived and he took two plates. He told us to take
– he told us to take one of the plates he had and so I had to take the
plate, because everyone had one. I was uncomfortable taking the
plate. He offered me some tea and I said nicely, no. He looked at
me funny and I thought he had mental problems. Later on another
prisoner arrived who was older, he asked me for a place to sit. The
moment the old man sat down, the man with the long hair attacked
him, hitting him directly in the face.” He is referring to Mr. Bass,
isn’t he, Johnny Bass?
A. Yes.
Id. at 148-49.
In response to follow-up questions regarding Mr. Martinez’s description of
Jason Grass’s behavior, Officer Goodwill testified as follows:
Q. If somebody . . . was acting that way, would you be concerned?
A. If I had seen it, yes.
Q. Anyone who would have been able to appreciate that behavior
would be able to appreciate that that person had the propensity of
hurting someone, is that a fair statement?
A. If that’s the way it happened, yeah.
Q. At anytime did you hear this loud banging on the door that was
described by Mr. Martinez?
A. No, I did not.
....
-18-
Q. Would you agree, Mr. Goodwill, that Mr. Martinez’s statement,
assuming that that’s a credible statement and the truth of what he
wrote down, that wouldn’t describe someone who was calm?
A. Would you repeat that?
Q. Sure. Mr. Martinez, who described Jason Grass’s behavior,
banging on the door, yelling, quote, “thought he was mental,” that
wouldn’t describe someone who was, quote, “calm,” would it?
A. No, it would not.
Q. If that existed, if that behavior was exhibited, and you are aware
of that behavior, you would have taken him out of the cell, right?
A. Yes, I would have.
Q. That is something that you knew to do?
A. Yes.
Id. at 150-51, 161.
Viewing this testimony in the light most favorable to Mr. Bass, the jury
could reasonably have found that Mr. Martinez’s statement was credible, and that
either Christy Gunter would have seen or Officer Goodwill would have heard the
commotion that Jason Grass made after he was placed in the drunk pod if they
had been closely supervising the pod. By his own admission, if this had occurred,
Officer Goodwill would have removed Jason Grass from the drunk pod, and it is
reasonable to infer that Mr. Bass would not have been assaulted. Because Christy
Gunter and Officer Goodwill were acting pursuant to the Jail’s policies and/or
-19-
customs and their assigned duties, the Jail was properly found liable for the
resulting assault.
The judgment of the district court is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
-20-