Richard Hightower v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 24-1116

_______________

RICHARD HIGHTOWER,

Appellant

v.

CITY OF PHILADELPHIA; SERGEANT SHANTEL

MAJOR; CORRECTIONAL OFFICER JOHN DOES 1–10;

MEDICAL JOHN DOES 1–10

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:21-cv-04075)

District Judge: Honorable Karen S. Marston

_______________

Argued: December 2, 2024

Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges

(Filed: March 7, 2025)

Charles L. Becker [ARGUED]

Colin Burke

Ruxandra M. Laidacker

Michelle Paznokas

KLINE & SPECTER

1525 Locust Street

19th Floor

Philadelphia, PA 19102

Counsel for Appellant

Craig R. Gottlieb

Jennifer MacNaughton [ARGUED]

CITY OF PHILADELPHIA

LAW DEPARTMENT

1515 Arch Street

Philadelphia, PA 19102

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

Not every jail tragedy makes a municipality liable. Richard

Hightower, a pretrial detainee, was brutally attacked by his

cellmate and left paralyzed. So he sued the City of Philadelphia

over its jail-housing policy. But cities are seldom liable for ran-

dom, one-off attacks by one inmate against another. Because

Hightower cannot show that the city caused any constitutional

violation, the District Court properly granted it summary judg-

ment.

2

I. HIGHTOWER’S CELLMATE ATTACKED HIM,

LEAVING HIM PARALYZED

Hightower was arrested and charged with burglary, theft,

trespass, and receiving stolen property. He was held in a city

jail pending trial. While new inmates are in intake, the jail tests,

interviews, and medically examines them to classify them by

security status. That process is supposed to be finished within

three days. Then, the jail is supposed to assign the inmate to a

permanent cell based on his classification.

Hightower was sent to an intake cell to await transfer to the

general jail population. While he was there, the jail classified

him as the second-lowest security risk (out of four classes).

Hightower’s intake cellmate was Anthony Tyler. Tyler was

classified as the highest security risk. This was not Tyler’s first

time behind bars. When he had been imprisoned before, he had

screamed and kicked the walls, beaten his cellmate, fought

other inmates, destroyed prison property, and slapped a guard.

This time, he was arrested for aggravated and simple assault,

attempted arson, and having a criminal instrument. Before

joining Hightower in his cell, Tyler had been recovering from

stab wounds in the jail’s infirmary. Under the jail’s policy, he

should have gone from the infirmary straight to a permanent

cell because he had already been classified and medically

cleared. But a company that provides prison health services

made a mistake, sending him back to an intake cell.

Tyler arrived in Hightower’s cell angry. He started pacing

the cell, kicking the door, and arguing with Hightower. He

yelled at Hightower, saying he would “F” him up. App. 111–

12. Hightower lay down on his bunk and stayed quiet. About

3

twenty minutes later, Tyler had a guard turn on the TV outside

their cell. Hightower, trying to sleep, asked the guard to turn

down the volume. Tyler again threatened to “F [Hightower]

up.” App. 113. Hightower responded that if Tyler was going to

try anything, he should do it then. But the two stopped arguing,

so Hightower lay down again and fell asleep.

The next day, while Hightower was lying in his bunk, Tyler

started banging on the cell door. When a guard approached,

Tyler complained that the cell was dirty and so was Hightower.

Tyler demanded a new cell, but the guard said he could not be

moved right away.

Tyler shot back: “If I can’t get out of this cell, I’m going to

kill my cellee.” App. 170. “[H]e immediately turned around,

ran, and pulled Mr. Hightower off the top bunk.” App. 171.

Once Hightower was on the ground, Tyler punched and kicked

him. The guard radioed for medics and backup. Less than a

minute after the guard got to the cell and before her backup

arrived, she went in and pepper-sprayed Tyler, subduing him.

Backup arrived shortly after, handcuffing Tyler and taking

Hightower to the hospital. Even so, Hightower was left para-

lyzed.

Hightower sued the City of Philadelphia and the guards

under 42 U.S.C. § 1983. The District Court granted summary

judgment for defendants. Hightower does not appeal the

court’s judgment for the guard but does appeal the judgment

for the city. We review de novo, taking all facts from and draw-

ing all inferences for Hightower. Tundo v. County of Passaic,

923 F.3d 283, 286–87 (3d Cir. 2019).

4

II. HIGHTOWER’S MONELL CLAIM FAILS

Hightower alleges that the city violated his constitutional

rights by housing him with a dangerous inmate. To prove that

Monell claim, he must show both that his rights were violated

and that the city is liable for that violation. See Schneyder v.

Smith, 653 F.3d 313, 319 (3d Cir. 2011). The city is not vicar-

iously liable for the unconstitutional conduct of its employees.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead,

Hightower must show that the city’s choices were the “moving

force” behind the constitutional violation. Id. at 694.

Of course, Hightower has a Fourteenth Amendment right to

“security from physical assault by fellow prisoners.” Davidson

v. O’Lone, 752 F.2d 817, 821 (3d Cir. 1984). Thus prisons have

a duty to protect inmates from other inmates’ violence. Farmer

v. Brennan, 511 U.S. 825, 833 (1994). A prison violates that

duty if it (1) creates conditions that “pos[e] a substantial risk of

serious harm” and (2) is deliberately indifferent “to inmate

health or safety.” Id. at 834. How this two-step test works for

pretrial detainees’ Fourteenth Amendment claims is not entirely

clear in this circuit. Though the circuits agree that deliberate

indifference refers to prison officials’ subjective mental state

under the Eighth Amendment, they differ on whether the Four-

teenth Amendment standard is subjective or objective. Com-

pare, e.g., Short v. Hartman, 87 F.4th 593, 604–11 & n.9 (4th

Cir. 2023) (collecting cases) (objective), with Strain v. Rega-

lado, 977 F.3d 984, 989–93 (10th Cir. 2020) (subjective).

But we need not take sides here. Even if Hightower’s right

to security were violated, no reasonable jury could find the city

responsible for Hightower’s injuries. To show that the city was

5

the “moving force” behind the alleged injury, Hightower

would have to show either that the city (1) had an unconstitu-

tional policy or custom or (2) was deliberately indifferent to

inmates’ rights. Forrest v. Parry, 930 F.3d 93, 105–06 (3d Cir.

2019) (internal quotation marks omitted). He cannot show either.

A. There was no unconstitutional policy or custom

Hightower says the city had a policy or custom of not sep-

arating inmates by security-risk level during intake. But he

cannot identify any policy saying that. True, the city had a pol-

icy of separating general population inmates by security level.

But it did not have any separation policy for inmates during

intake. And the lack of a policy is not a policy. A policy requires

“an official proclamation, policy or edict by a decisionmaker

possessing final authority.” Id. at 105. Plus, the city did have a

different written intake policy that, if followed, would have

prevented this attack; Tyler should have gone from the infir-

mary straight to the general jail population. But the city is not

liable just because its employees did not follow this policy. See

Monell, 436 U.S. at 691. Challenges to “failures and inadequa-

cies by municipalities” must take the deliberate-indifference

path, not the custom-or-policy path. Forrest, 930 F.3d at 105.

Nor has Hightower shown a custom that violated his right.

Even if he could show that the city had a custom of commin-

gling pretrial detainees that was “so persistent and widespread

as to practically have the force of law,” the custom would be

facially constitutional because the Fourteenth Amendment

does not require the city to reshuffle inmates in intake once

they are classified. Connick v. Thompson, 563 U.S. 51, 61

(2011). And the city’s policy of separating general

6

population inmates by security classification does not, as

Hightower suggests, make its practice of housing differently

classified inmates together in intake for mere hours unconsti-

tutional on its face. For a facial constitutional challenge, it

would be too speculative to assume that higher-classification

inmates inherently pose a substantial risk of harm to lower-

classification ones while they are briefly comingled in intake. Bis-

trian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012), abrogated on

other grounds as recognized by Fisher v. Hollingsworth, 115

F.4th 197, 204 (3d Cir. 2024).

B. Nor has Hightower shown that the city acted with

deliberate indifference

Hightower also argues that the city caused his alleged con-

stitutional injury by failing to separate inmates in intake by

classification status, a choice that was deliberately indifferent

to inmates’ rights. Under Monell, deliberate indifference requires

“proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bd. of Cnty. Comm’rs v. Brown,

520 U.S. 397, 410 (1997). Ordinarily, this means that a plaintiff

must show that “[a] pattern of similar constitutional violations”

put the city on notice that, by failing to act, it was being delib-

erately indifferent to inmates’ rights. Connick, 563 U.S. at 62.

Here, too, Hightower falls short. Though a deputy warden

testified that other violent inmates in intake had attacked non-

violent ones, she could not identify a single example. And

Hightower’s expert just rehashed equally empty deposition tes-

timony. Though the expert opined that housing Hightower and

Tyler together was like “mixing predator with prey,” a lurid

metaphor, he offered no factual support. Without that support,

7

we cannot say that his opinion could sustain a jury’s verdict.

Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509

U.S. 209, 242 (1993). And at oral argument, counsel could not

cite any other evidence of a pattern.

Hightower says the city can be liable even absent any pat-

tern because Tyler’s attack was such an obvious consequence

of the city’s failure to reshuffle inmates in intake after classifi-

cation. But this single incident of a higher-classification inmate

assaulting a lower-classification one is not enough to hold the

city liable. True, the Supreme Court has “hypothesized” that

“in a narrow range of circumstances, a pattern of similar viola-

tions might not be necessary to show deliberate indifference.”

Connick, 563 U.S. at 63 (internal quotation marks omitted).

But it has never found this bar satisfied. And the only hypothet-

ical example of this liability that it has recognized is extreme: if

a city armed its police with guns and set them loose without

any legal training on when to use them. City of Canton v. Har-

ris, 489 U.S. 378, 390 n.10 (1989). Not even failing to train

prosecutors on their Brady disclosure duties is enough. Con-

nick, 563 U.S. at 64 (referring to Brady v. Maryland, 373 U.S.

83, 87 (1963)).

Thus, the risk to Hightower was not “so patently obvious”

that the city can be held liable. Id. Failing to temporarily seg-

regate inmates falls far short of giving police guns without

training them on the law of deadly force.

*****

Hightower suffered greatly. But the city cannot be held lia-

ble. Because the city adopted a reasonable policy for handling

inmates who are often violent and dangerous, we will affirm.

8