DocketNumber: No. CV-R-84-315-ECR
Citation Numbers: 620 F. Supp. 59
Judges: Reed
Filed Date: 10/15/1985
Status: Precedential
Modified Date: 11/26/2022
ORDER
Plaintiff Christopher Warner filed a complaint on July 30, 1984, claiming damages and declaratory relief under 42 U.S.C. § 1983. Warner alleges that while in the custody of the Washoe County Jail, fellow prisoners brutally assaulted and raped him. Defendants Belie Williams, James Lillard, James King, Gene McDowell and Dick Rit-
There are two essential elements to a 42 U.S.C. § 1983 action: (1) the plaintiff must allege and prove that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived the plaintiff of rights, privileges, or immunities secured by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).
The thrust of Warner’s § 1983 claim against the Commissioners is that not only does NRS § 211.020
Warner had a “constitutional right to be reasonably protected from ... sexual assault from his fellow inmates ...” Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.1973) (per curiam). Nevertheless, not every injury in which a state official plays a part is actionable under § 1983. Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980).
Liability cannot be imposed on the Commissioners on a theory of vicarious liability. See Monell v. New York Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The test to determine liability is whether: (1) control or direction is exercised by a supervisory officer and (2) there is either personal participation in some form (giving orders, setting policy that led to violation, or a failure to supervise) thereby causing foreseeable harm to a constitutional right.
We find that NRS § 211.020 may impose a duty on the Commissioners to the prisoners. The statute charges county commissioners with the duty to inquire into the treatment and condition of the prisoners. The statute is silent on the issue whether the duty runs directly to the prisoners. Contra Donaghe v. County of Washoe, No. CV-R-82-337-BRT (D.Nev. April 11, 1983).
Warner also alleges that the Commissioners had knowledge of previous assaults in the Washoe County Jail. The Court finds that the Commissioners, by virtue of both NRS § 211.020 and their alleged knowledge of several prior sexual assaults, may have a custodial relationship with respect to the prisoners of Washoe County Jail. See Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983). There exists at this time a triable issue as to whether the Commissioners lack of inquiry, as mandated by statute, created a foreseeable risk of Warner’s alleged assault. See Howard v. Fortenberry, 723 F.2d at 1213-1214; see also Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982) (when an inmate in the custody of a county institution was found dead, there existed a triable issue as to whether the county’s lack of care in hiring and supervising their deputies was negligence creating a foreseeable risk of harm).
The Commissioners are charged with some degree of supervision over the Wash-oe County Jail. Warner’s complaint alleges specific knowledge of the Commissioners as to prior sexual assaults. Thus, based on the complaint, Warner states a claim for which relief may be granted and the Commissioners’ motion to dismiss is premature.
IT IS, THEREFORE HEREBY ORDERED that the motion to dismiss is DENIED.
. Former County Commissioner James Underwood, originally named in the complaint and joining in the motion before this Court was dismissed by this Court based upon stipulation of parties on September 18, 1984 (document #8).
. The Complaint, in a typographical error, refers to NRS § 211.010. We assume, as did the Commissioners in their motion that Warner is relying on NRS § 211.020.
. The Commissioners have been charged by NRS § 211.020 with supervisory duties. The statute provides:
'll 1.020 Duties of county commissioners: Supervision: inspection; precautions. The board of county commissioners:
1. Is responsible for building, inspecting and repairing any county or branch county jail located in its county.
2. Once every 3 months, shall inquire into the security of the jail and the treatment and condition of the prisoners.
3. Shall take all necessary precautions against escape, sickness or infection."