Opposition Brief — Ortega v. Rowe

No. 86-1143

In The

Supreme Court of the United States

October Term, 1986

ft.

elie IE

NABOR ORTEGA, AURELIO GONZALEZ,

and all others similarly situated,

Petitioners,

v.

BILL M. ROWE, e# al.,

Respondents.

fy.

Vv

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Fifth Circuit

Vw

BRIEF IN OPPOSITION

tf.

Vv

JoHn Cunver Ross, Jr.

CITY ATTORNEY

P.O. Box 2000

Lubbock, Texas 79457

JAMES P. BREWSTER

CIVIL TRIAL ATTORNEY

Wiitu1am Ken JouNnson

ASSISTANT CITY

ATTORNEY

Attorneys for Respondent

The City of Lubbock, Texas

and Its Mayor

COCKLE LAW BRIEF PRINTING CO., (800) 225-6064

or call collect (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Whether the U.S. Court of Appeals for the Fifth

Circuit correctly applied the holdings of Daniels v. Wil-

liams, 474 U.S. —, 106 S.Ct. 662 (1986) and Davidson v.

Cannon, 474 U.S. —, 106 S.Ct. 668 (1986) to the circum-

stances of this case?

2. Whether Daniels v. Williams and Davidson v. Can-

non overrule Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861

(1979)?

3. Whether the courts below erred in holding that the

conditions of confinement in Lubbock City Jail did not

amount to punishment in violation of the Fifth Amend-

ment or to a deprivation of Petitioners’ constitutional or

legal right to due process?

4. Whether Petitioners have standing in federal court

to litigate a 42 U.S.C. § 1983 claim alleging due process

deprivations under the Fourteenth Amendment against Re-

spondent City of Lubbock, considering the restrictions of

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908 (1981), and

notwithstanding the modification of Parratt v. Taylor by

the holding in Daniels v. Williams?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW Wi

TABLE OF CONTENTS Pabeswred Wr etal ok eRe Ree ii

TADLE OF AUTHORICON 66 eee _ iii

STATEMENT OF TEE CR sic 1

SUMMARY OF ARGUMENT J... 6

ARGUMENT

ARGUMENTS UNDER QUESTION ONE

I. Petitioners’ argument regarding government poli-

ches dées not OBEY ...0. eee 9

Il. The Fifth Cireuit’s definition of negligence in

this case was not contrary to the definition in

Dapwtdons ¢, COMI aicnescccciincss Santa eaten 14

ARGUMENTS UNDER QUESTION TWO:

I. The opinions below do not conflict with Bell v.

WF OGD nicctitntininnoniamane 17

ARGUMENTS UNDER QUESTION THREE:

I. Case law and evidence miceres the holding of

the courts below 20

ARGUMENTS UNDER QUESTION FOUR

I. Petitioners have no standing to sue under 42

UBS. $1963 eee 26

CONCLUSION nincesisccnnccssesit es ae |

lil

TABLE OF AUTHORITIES

Page

CasEs

Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973) Wu... 25

Adams v. Pate, 445 F.2d 105 (7th Cir. 1971) uw... 22, 24

Anela v. City of Wildwood, 790 F.2d 1063 (3rd Cir.

as saliennieniatilii 19

Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689 (1979) 22

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861

EE EE ES A ee ee 1, passim

City of Oklahoma City v. Tuttle, — U.S. —, 105

Me aii codeedennieahas 10, 14

Crowe v. Leeke, 540 F.2d 740 (4th Cir. 1976) ow. 22

Crusoe v. DeRobertis, 714 F.2d 752 (7th Cir. 1983) ........ 25

Daniels v. Williams, 474 U.S. —, 106 S.Ct. 662

NSE GETRRURGE ET SS Or ee 6, passim

Davidson v. Cannon, 474 U.S. —, 106 S.Ct. 668

ERSTE ETS Sa Se NC a 6, passim

Griffin v. Smith, 493 F.Supp. 129 (W.D.N.Y. 1980) ... 23

Hoitt v. Vitek, 497 F.2d 598 (1st Cir. 1974) ow. 22

Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401

UT a CS Ace e yd ean 21

Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) .......... 21, 22

Lareau v. Manson, 651 F.2d 96 (2nd Cir. 1981) 2. 20, 22

Martinez v. California, 444 U.S. 277, 100 S.Ct. 553

AME etl Cc RLS eS ey OC ee 22

Medina v. O’Neill, 589 F.Supp. 1028 (S.D. Tex.

EERE TES Con eRe ce ee ea seth iabigladuamiic diatonic 21

Monell v. New York City Dept. of Social Services,

Nm, MUN, ED PO, EPS ROCCO coca ceeeecxtecseesecscneereeees 12,13

iv

TABLE OF AUTHORITIES—Continued)

Page

Nevak v. Beto, 453 F.2d 661 (5th Cir. 1971) 22, 23

Owen v. City of Independence, 445 U.S. 622, 100

Secs ee IE eld as oe ate 8 10, 13, 14, 22

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908

RUE ctiiicadeaaieeahs ati hietlbieles hath bids ie cectielenlometadatomenctsie 8, 26, 27

Pembaur v. City of Cincinnati, — U.S. —, 106 S.Ct.

TIER sin cishlihcliccesasaciariddenihiidbatbceskdiieriiaasuies Mek? ans 10, 12, 14

Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392

6S SERENE ON ISS LPS ENT OPED OEE C LOT NITES eh 23

Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976) ........... 22

Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) ow. 23

Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971),

cert. dented 404 U.S. 1049 (1972) oo eee 22

Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984) 27

Union County Jail Inmates v. DiBuono, 713 F.2d

A CN i I a tacracecnniesitiecsovn atau eiabeesnceeahbapaeninscianccaunaens 20

Via v. Cliff, 470 F.2d 271 (3rd Cir. 1972) cee 25

Whitley v. Albers, — U.S. —, 106 S.Ct. 1078 (1986) .....11, 19

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963

I ctiasastdiassbaseicccesihclascheibnikatasibesdaceieetadesciblapinahadandiassiesatsaaani 10, 13, 14

STATUTE

SS eae ena Mur 8, 11, 12, 22, 26, 27

CoNSTITUTION

Fifth Amendment to the U.S. Constitution ou... 1, 7, 18,

20, 21, 26

Eighth Amendment tu the U.S. Constitution 00. 20, 22, 24

Fourteenth Amendment to the U.S. Constitution ............... Be

STATEMENT OF THE CASE

The original suit in this case! was filed by Petitioners

on December 9, 1981, in the Northern District Court of

Texas, alleging that conditions of confinement in Lubbock

City Jail and cther jails where Petitioners and other class

members were incarcerated pending deportation amounted

to deprivation of their due process rights under the Fifth

and Fourteenth Amendments to the U.S. Constitution.

The case first came to trial on September 19-23, 1983.

Among other conditions which were subsequently dropped

on appeal, Petitioners complained of inadequate supervi-

sion and sanitation, lack of bedding, overcrowding, and

inadequate fire safety and attorney access. The named

plaintiffs, Ortega and Gonzalez, sought injunctive relief

against INS and the City of Lubbock on behalf of them-

selves and their class and damages for themselves.

More than thirty (30) witnesses testified before the

District Court issued a memorandum opinion July 23, 1985

(attached as Appendix B to Petitioner’s Petition). The

District Court found that Petitioners’ claims were ‘‘with-

out merit’’ and denied all relief sought by them; and, that

the constitutional standard for conditions of confinement

was not violated by defendants, pursuant to Bell v. Wolfish,

441 U.S. 520, 99 S.Ct. 1861 (1979).

Background facts may be found in the District Court’s

memorandum opinion which is App. B of the Petition. Such

' This statement of the case is based on the findings of

fact of the District Court and other undisputed facts in the

record to which the District Court made no reference.

eT

2

findings clearly dispute Petitioners’ allegations and were

upheld by the Fifth Cireuit Court, on appeal.

Petitioners complain of the conditions of confinement

in Lubbock City Jail [Petition 5-6] as grounds for a Writ

of Certiorari to issue. Petitioners allege that ‘‘the jail

was effectively abandoned’’. Petition 5. The District Court

did not find that the Lubbock City Jail had been abandoned,

but only that at the time Petitioners were held there the

City no longer used it to hold their own prisoners. The

Court further found that the City ‘‘continued to provide

personnel to supervise the jail as well as food, maintenance,

and bedding.’’ App. B 14a. Based on the evidence pre-

sented, the District Court determined that the supervision

provided, even though not organized or constant, protected

the Petitioners and other detainees from any harm that

might have occurred. App. B 18a.

Petitioners further allege that the District Court’s find-

ing that the City’s desk sergeants provided some supervi-

sion to the detainees was clearly erroneous because the

desk sergeants were not formally assigned to supervise

them. Petition 5. However, as a practical matter, the desk

sergeants did supervise them, e.g. they brought them meals

and bedding and were also in the same building with them.?

Petitioners exaggerate the bedding conditions in Lub-

bock Jail at the time Petitioners were housed there2 The

2 The testimony was that the desk sergeants didn’t have the

names of the detainees, nor were they willing to allow attor-

neys to visit detainees without prior Border Patrol approval.

But this didn’t prove that there was a lack of supervision. It

had nothing to do with supervision.

; They allege that “[T]he cotton mattresses which were oc-

casionally provided were never cleaned; they were simply left

in the cells unwashed until they disintegrated.” Petition 5.

District Court found no evidence to support such a claim.

The Petitioners paraded forth a number of witnesses who

allegedly went without adequate bedding while incarcerated

in Lubboek City Jail, awaiting deportation. App. B 15a-16a.

But the District Court found that 72 bunks were available

to the detainees. App. B 14a. It also found that the great

weight of credible testimony was to the contrary of those

witnesses. App. B 17a. Credible evidence indicated that

the cells utilized by Border Patrol in Lubbock City Jail

were equipped with bunks, commodes, drinking fountains,

and showers. App. B 14a.

Petitioner Gonzalez was not placed in a cell with over-

crowded conditions, but rather alone. App. B 12a. He was

provided a mattress and blanket once it was discovered

his cell lacked those. App. B 17a. Likewise, Ortega was not

placed in overcrowded conditions. App. B 12a.

The detainees usually didn’t inform anyone when they

lacked bedding, so the District Court believed. Id. The

City maintained a supply of mattresses and blankets for

use by detainees as late as December, 1981, (the date of the

filing of this lawsuit) and attempted to furnish detainees

with such when needed. App. B 14a. Any defects in Lub-

bock Jail brought to the attention of the City were cor-

rected. App. B 17a.

As to the allegation regarding overcrowding, the aver-

age stay of illegal aliens there was 1.4 days. As testified

to, any potential overcrowding in Lubbock Jail was allevi-

ated by use of other cells in the facility. There is no evi-

dence that Petitioners were ever forced to sleep on the

floor of Lubbock Jail.

There was also evidence that the detainees themselves

tore up the mattresses, and that such mattresses did not

vanish through the deterioration of being uncleaned. Id.

Petitioners further complain of the sanitary conditions

of Lubbock City Jail. Petition 5. The District Court found

that overall, ‘‘the evidence clearly indicates that Border

Patrol agents and City personnel cared for detainee com-

fort and safety and took steps to make the aliens’ short

stay more comfortable.’’ App. B 17a. Further testimony

supported the Trial Court’s finding that the sanitary con-

ditions of the detainees were acceptable.‘

Petitioners allege that in the Lubbock Jail, ‘‘| N]o one

even turned on the heat in the winter.’’ Petition 5. Peti-

tioners recite no evidence for their unfounded accusation.

To the contrary, the record clearly supports the Court’s

finding that Petitioners were adequately cared for while

in Lubbock Jail. App. B 17a.

Exhibits introduced into evidence showed that the area

where federal detainees were housed was an internal part

of the police station. To argue that this holding area’Was

inhumanly or harshly cold while the rest of the premises

attached to it were comfortably warm was not supported

by the evidence. There was no dispute that the cell area

4

The detainees were afforded functioning showers in Lub-

bock Jail [App. B 14a]; periodic, on-sight inspections were

made [App. B 17a]; the only “unsanitary” conditions in fed-

eral detainees’ cells were papers, cartons, and styrofoam con-

tainers strewn about the cell, or at times, torn up mattresses.

The only “unsanitary” conditions in Petitioner Gonzalez’s cell

consisted of “trashy papers and old paper plates”’.

was equipped with heating and cooling in working condi-

tion.°

Gonzalez alleged his cell was cold, but in light of the

facts and the testimony that he had all his clothes, a heavy

jacket, and eventually a blanket, it seems his complaint of

misery is exaggerated. Transcript 309-310, 319. Further-

more, he spent only one night in such alleged intolerable

conditions. App. B 12a.

Petitioners allege that access to attorneys for them was

difficult at best, as a result of the ‘‘policy’’ defendants had

regarding visitation rights. Petition 6. However, the Dis-

trict Court held that the evidence indicated otherwise.®

Respondent City of Lubbock contends that the basie

constitutional conditions at issue were factual in nature,

and therefore, the District Court’s findings of fact against

5 Of course, in the case of Ortega, the issue of heat was

not important since he was housed there in the summer, Sep-

tember 1981. App. B 11a. Furthermore, he made no complaint

about the heating.

© The District Court said, “aliens who wished to meet with

lawyers were able to do so and that Border Patrol personnel

did not interfere with this right... . [T]here is absolutely no

evidence to suggest a denial or serious infringement by Border

Patrol personnel of the detainees’ right to contact and meet with

attorneys.” App. B 24a-25a. Contrary to the Petitioners’ alle-

gations that such visitation and access was denied, the record

supported the Court's finding: federal detainees were extended

the right to attorney access by the City through the instructions

of Border Patrol. App. B 23a-25a; reasonable visitation was af-

forded for visitors of the illegal aliens housed in Lubbock Jail,

including attorneys and the Consul for the Republic of Mexico.

App. B 12a; Petitioner Ortega was afforded visitation and at-

torney access while incarcerated in Lubbock City Jail, [Id.],

as was Appellant Gonzalez. App. B 13a.

6

Petitioners were not clearly erroneous because they were

supported by the great weight of the evidence.

Even though Petitioners allege that the ‘‘Fifth Circuit

affirmed on other grounds’’, implying that the Circuit

Court was not ruling on the conditions of confinement, in

fact, that was precisely what it was affirming: the District

Court’s finding that the conditions of confinement existing

in the Lubbock City Jail did not amount to a constitutional

deprivation against Petitioners. App. A 2a.’

The Fifth Cireuit affirmed the District Court’s judg-

ment on all points, based upon the Cireuit Court’s reading

of Daniels v. Williams, 474 U.S. —, 106 S.Ct. 662 (1986)

and Davidson v. Cannon, 474 U.S. —, 106 S.Ct. 668 (1986).

o— —_

SUMMARY OF ARGUMENT

Respondent City of Lubbock argues the following

points in this Brief:

(1) The Fifth Cireuit Court of Appeals correctly

applied the holdings of Daniels v. Williams and Davidson

v. Cannon to the circumstances of this case.

This case dealt with the conditions of confinement

of INS detainees, not with negligent policies per se. The

Fifth Cireuit correctly applied the Daniels standard of

, The main factual issue was whether “the conditions de-

scribed violated their [Petitioners’] due process rights under

the fifth amendment.” App. A 3a. Only after the Circuit Court

agreed with the correctness of the District Court’s findings re-

garding the conditions, did the Circuit Court move on to the

legal questions involved in the case.

due care to the conduct of government officials and was

in no way creating a new or improper standard by which

to measure the negligence of official conduct.

The Fifth Cireuit’s holding and standard of negli-

gence applied in this case do not conflict with other court

holdings, so there is no justification for Court review.

The evidence is lacking that government ‘‘policy’’

caused the constitutional deprivations alleged. Under the

Daniels ruling, the conditions were held to be negligent

only.

The allegation that the Fifth Circuit adopted a higher

standard than Davidson is unfounded. The Cireuit Court

merely applied the negligence standard formulated in

Daniels and adopted in Davidson.

(2) The Fifth Cireuit did not ‘‘overrule’’ Bell v.

W olfish.

The Fifth Circuit was attempting to overlay the Bell

standard of evaluating conditions of confinement with

the Daniels decision. Bell did not directly apply to the

conditions in this ease, since such conditions did not

amount to punishment. The Fifth Circuit retained the

Bell standard for conditions of confinement that fell out-

side the Daniels scenario.

The cases cited by Petitioners that allegedly show

the Fifth Cireuit erred can be distinguished.

(3) The courts below did not err in holding that the

conditions of confinement in Lubbock City jail did not

amount to constitutional deprivation or punishment in

violation of the Fifth or Fourteenth Amendments.

The District Court found no violation of the Bell

standard. Each condition complained of failed to be

“proved up as a constitutional deprivation. Without first

showing a constitutional deprivation, damages or other

relief cannot be awarded under 42 U.S.C. § 1983.

(4) Petitioners have no standing in federal court

to litigate a 42 U.S.C. § 1983 claim alleging due process

deprivations against Respondent City of Lubbock because

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908 (1981)

mandates that Petitioners must seek relief in state court

where a post deprivation remedy satisfying due process

requirements is made available by state law. Although this

issue was never reached by the lower courts, Respondent

City of Lubbock maintains that negligence claims cannot

be brought under § 1983.

Respondent respectfully submits that the opinion ren-

dered in this case by the Fifth Cireuit Court was clearly

correct in all material holdings and that Petitioners’ ap-

plication for writ of certiorari should be denied.

°

ARGUMENT UNDER QUESTION ONE

QUESTION 1: Whether the United States Court of

Appeals for the Fifth Cireuit correctly applied the hold-

ings of Daniels v. Williams and Davidson v. Cannon to

the circumstances of this case?

I. Petitioners’ argument regarding government

policies does not apply.

Petitioners allege that one reason for issuing a writ

of certiorari in this case is that the Fifth Circuit’s opin-

ion conflicts ‘‘in principle’’ with Daniels. Petition 9.8 Pe-

titioners claim that their injuries were ‘‘caused by negli-

gent policies’’ not ‘‘[N]egligent acts of individual of-

ficials’’ [Petition 10], so Daniels does not even apply to

this case.

Respondent City of Lubbock urges the Court to re-

ject Petitioners’ argument because it is untimely made.

Petitioners never argued such a point on appeal, even

though the application of the Daniels case was at issue

at the appellate level. Therefore, they should not be al-

lowed to argue now on final appeal the idea that their

injuries were caused by certain government policies (as

opposed to certain government conduct, as has been the

issue since the trial on the merits), with the intent being

to limit the application of Daniels to this case.

This ground for appeal should also be rejected because

it is irrelevant to this case. The Fifth Circuit ruled on

the conduct of Defendants in operating the Lubbock City

Jail (i.e. conditions of confinement as maintained by City

and federal officials), not on the policies of such Defen-

dants. Therefore, the Fifth Circuit was correct in using

the standard of negligence as espoused in Daniels to judge

such conduct.

. Petitioners claim that “[T]he Fifth Circuit’s opinion in this

case extends Daniels to hold that injuries caused by negligent

government policies [emphasis added] do not state a due pro-

cess violation either.”

10

If negligent policies were ever at issue in this case,

the District Court long ago ruled that the evidence was

insufficient to find such. App. B 23a-26a, 30a-3la. Nor

did the Fifth Cireuit discover any evidence supporting

the allegation that negligent government policies deprived

Petitioners of their constitutional guarantees. App. A 2a,

4a.

The deprivation alleged in Daniels was the same type

alleged in this case: a deprivation of their rights under

the Due Process Clause of the Fourteenth Amendment.

App. B 10a; App. A 3a; Daniels, at 663. Petitioners may

allege the ground of negligent policies before this Court,

but their allegations throughout this case have zeroed in

on government officials’ conduct towards them, e.g. Bor-

dei Patrol agents. municipal officials, desk sergeants, etc.

Petitioners further discuss two lines of cases, once

they have assumed the issue as being one of ‘‘policies’’

rather than official conduct. Petition 10-14. They claim

that such cases conflict as to the standard of negligence

that should be used in testing government policies for due

process violations.?

Petitioners’ analysis of policy v. conduct is both mis-

leading and a waste of this Court’s time. Daniels pro-

vided the Fifth Cireuit a working definition of ‘‘negli-

gence’’ with which to rule upon the issues of this case,

9 “This case provides an opportunity to resolve the appar-

ent conflict between cases like Wolff, Pembaur, and Owen, in

which the negligence or good faith of a policy is irrelevant to

the finding of a due process violation, and cases like Tuttle and

the others cited above in which a policy must manifest delib-

erate indifference in order to constitute a due process viola-

tion.” Petition 14.

11

including testing government officials’ acts in confining

Petitioners. Id at 663.'!° As the record in this case clearly

reflects, there was no ecrelible evidence to support the

allegation that Defendants engaged in deliberate policies

so as to deprive Petitioners of Due Process.

Petitioners further assume that ‘‘[U]nconstitutional

conditions’’ existed in Lubbock City Jail. Petition 17.

This was a burden of proof not met by Petitioners. App.

B 29a. This Court held in Whitley v. Albers, — U.S. —,

106 S.Ct. 1078, 1088 (1986), ‘‘that any ground properly

raised below may be urged as a basis for affirmance of

the Court of Appeals’ decision,’’ including District Court

findings. The District Court found no constitutional de-

privations due to the conditions of confinement as meas-

ured by the standard set forth in Bell v. Wolfish. The

Fifth Cireuit found no constitutional violations under

Daniels or Davidson. App. A 6a-7a.

This Court ruled in Damels that Petitioners must

prove a violation of any underlying constitutional right

before it may make a claim under 42 U.S.C. § 1983."' Pe-

titioners failed to prove such. All other arguments, in-

cluding negligent policy arguments, become moot since

10 The Daniels Court said that negligence amounted to

“causing unintended loss of or injury to life, liberty or prop-

erty.” The very reason this Court heard Daniels was to decide

when a tort (negligence) rises to a constitutional deprivation.

at 664. The same question was reviewed by the Fifth Circuit.

ut Daniels, at 664: “ ... in any given 1983 suit, the plain-

tiff must still prove a violation of the underlying constitutional

right; and depending on the right, merely negligent conduct

may not be enough to state a claim.”

12

Petitioners failed to meet this threshold burden of proof.

The Fifth Cireuit merely upheld such a finding as negli-

gence under Daniels, based upon the District Court’s find-

ings of fact.

Petitioners listed numerous cases in an attempt to sup-

port their claim that the Fifth Cireuit had misapplied

Daniels by ‘‘extending’’ it to negligent government pol-

icies rather than individual acts by government officials.

They cited Pembaur v. City of Cincinnati, — U.S. —, 106

S.Ct. 1292 (1986) to argue a different standard of negli-

gence exists for government policies than for individuals

as established in Daniels. Petition 10-14. Petitioners then

allege that the Fifth Cireuit was using the wrong standard

to measure the negligence in this case by assuming the

question was one of negligent policies, not negligent con-

duct.

But even in Pembaur, the § 1983 action was based

upon the conduct of government officials (i.e. an illegal

search), not any policy per se. The facts of Pembaur sup-

port the obvious proposition that a policy is actionable

only if there is conduct under that policy which causes

a constitutional tort.”

Petitioners next allege that a government policy may

in and of itself cause a deprivation even though the negli-

gence of the officials carrying out the policy do not. Peti-

tion 11. In another context, this argument might be valid.

12 Pembaur, at 1297, quoting Monell v. New York City Dept.

of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978):

“Congress did not intend municipalities to be held liable unless

action pursuant to official municipal policy of some nature

caused a constitutional tort.” [emphasis added].

13

However, where there is no proof of such deprivation-

causing policies, the argument is only a mere whimsy. This

Court’s practice has been to not hear arguments which are

not presented by the facts of the case on appeal.

Petitioners cite Wolff v. McDonnell, 418 U.S. 539, 94

S.Ct. 2963 (1974) for the proposition that government

‘‘officials were liable because of the policy they were pur-

suing.’’ Petition 11. This is a misreading of how Daniels

distinguished Wolff. The Daniels decision distinguished

Wolff on the standard of negligence applied to the conduct

of the prison officials involved, not on the issue of individ-

ual negligence versus policy negligence."

Petitioners further claim that ‘‘[T]he Fifth Cireuit’s

decision to excuse ‘negligent policies’ directly contradicts

Owen,’’ infra. Petition 12-13. If Owen is saying that the

‘interactive behavior of ... government officials’’ [Peti-

tion 13] unintentionally causes constitutional infringe-

ments, then perhaps this part of Owen is pared back by

Daniels and Davidson. However, contrary to Petitioners’

reading, Owen was still addressing injurious conduct, not

negligent policies. It merely stated that official policies gov-

erning or promoting such unconstitutional conduct may

make the policy makers themselves liable for such depriving

conduct on the part of their agents. Granted, a municipal-

ity’s policy will not be exonerated under Owen or Monell,

even if the policy is implemented in good faith, but this does

13 The plaintiff in Daniels had cited Wolff for the proposi-

tion that “it is almost certain that some negligence claims are

within 1983.” The Supreme Court responded that in Wolff, the

prison officials’ deliberate decision to deprive (i.e. a state of

mind, not a question of policy) was more than mere negligence,

as found in the facts of Daniels. at 666.

14

not make such cases inconsistent with either Daniels or this

Case.

In this case, no constitutional harm was found, only

lack of due care on the part of some officials. Under the

Owen holding, the policies in issue were likewise exoner-

ated because there was no proof such policies either pro-

moted the negligence of officials or caused its own depriva-

tions. The cases that Petitioners cite found first that a

municipality or other government entity was liable for

policies that were fostering constitutionally depriving offi-

cial acts. But these ‘‘policy’’ cases are relevant only if

the policy is found to be depriving. There is no legal

ground under our facts to justify resolving any apparent

conflict between the cases cited by Petitioners."

II. Fifth Circuit’s definition of negligence not

contrary to Davidson.

Petitioners allege a second ground in their attempt to

get a writ granted: that the Fifth Circuit’s definition of

‘deliberate indifference’’ was contrary to the reasoning of

Davidson v. Cannon. Petition 18. Petitioners see the

Fifth Circuit defining negligence as ‘‘deliberate indiffer-

“ Petitioners urged that this case provides an opportunity

to resolve the apparent conflict between cases life Wolff, Pem-

baur, and Owen, in which the negligence or good faith of a

policy is irrelevant to the finding of a due process violation,

and cases like Tuttle and the others cited above in which a

policy must manifest deliberate indifference in order to con-

stitute a due process violation. Petition 15-16. Under our facts,

the standard of negligence as established by Daniels is clear

when applied to questions of government officials’ conduct.

There is no need for such “apparent conflict” to be resolved.

15

ence’’ then claim that this is fundamental error. Appar-

ently to Petitioners, the Fifth Circuit erred by citing to

Davidson for a standard of negligence because (1) David-

son involved only a single isolated event, while this case

had ‘‘blind neglect’’ for more than four years, and, (2)

Davidson’s negligence was not nearly as malicious as the

‘deliberate indifference’’ that was shown by defendants

in this case.’

The findings of fact by the courts below do not sup-

port Petitioners’ position. The conduct of officials in

Davidson was much more reckless than the conduct in this

ease. App. A 8a, fn 5. The conditions complained of in

this case also involved single isolated events, not ‘‘blind

neglect’? going on for over four years. Evidence abounds

that defendants corrected conditions once they knew about

them. Such conditions were held to be simple negligence

under Pavidson and Daniels.

The allegations regarding the Slaton, Texas jail, at

Petition 19, were not part of the findings by the District

15 Petitioners mystically equated negligence with deliberate

indifference by stating “[T]he question of negligence or delib-

erate indifference was not before the Court in that [Davidson]

case... . Since Davidson conceded the issue of negligence, the

Court did not need to decide whether the same actions might

have been characterized as deliberate or reckless indifference,”

Petition 18. Apparently, Petitioners think that defendant’s con-

duct amounted to deliberate indifference. By allowing such

conduct to be considered “negligence”, the Fifth Circuit has

vis a vis adopted the standard of conduct at the level of de-

liberate indifference. So the argument goes.

16 Petitioners alleged that “[s]uch repeated failure to take

corrective action should give rise to a presumption of deliberate

indifference. . . . The record is clear that INS and the City of

Lubbock knew or should have known of the squalid conditions

in the Lubbock Jail.” Petition 19.

16

Court, in this case nor were they ruled upon by the Fifth

Circuit. App. B 9a, fn 1. They are obviously added for

inflammatory effect and should be disregarded as irrele-

vant to this case.

Petitioners demand a definition of ‘‘deliberate indif-

ference’’ even though it is not a standard ef negligence

that was relied upon, either in this case, or in the com-

panion flagship cases of Daniels and Davidson. Petition

20. The Davidson decision relied on the Daniels standard

of negligence, which was something less than a deliberate

decision to deprive. Id at 670.

The apparent problem that Petitioners allege here is

that the courts have not set forth a cookbook, black-and-

white definition of the various standards of negligence

which can be printed in a paragraph or less. The courts

have the judicial discretion and duty to decide what stan-

dard of negligence fits what facts. The justices in David-

son dissented not because the majority had failed to de-

fine or clarify the standard of negligence they relied upon,

but rather, because the dissent believed that the conduct of

the officials amounted to more than a lack of due care, i.e.

recklessness. Id at 673.

The evidence does not support a finding of deliberate

indifference in this case. The Fifth Circuit merely applied

a simple negligence standard to conduct that was much less

reckless or willful than what was ruled upon by Davidson.

The Fifth Circuit was well aware of Petitioner’s conten-

tion and held otherwise. App. A 8a.

Comparing the facts of this case to the allegations of

Petitioners and to the holdings in Davidson, it is clear that

17

the Fifth Cireuit applied the correct standard of negli-

gence in which to review defendants’ conduct.

ray

Vv

ARGUMENT UNDER QUESTION TWO

QUESTION 2: Whether Daniels v. Williams and

Davidson v. Cannon overrule Bell v. Wolfish?

I. The opinions below do not conflict with Bell

v. Wolfish.

Petitioners argue a third reason for granting the

writ of certiorari: the Fifth Cireuit’s decision in this case

conflicts with Bell. Petition 20. They claim that the Fifth

Circuit opinion ‘‘overrules ...in part’’ the Bell standard

regarding jail conditions and unconstitutional punishment.

ia.*

The effect of the Fifth Cireuit’s ruling on Bell is min-

imal in this case. The Circuit Court was not attempting

to ‘‘overrule’’ Bell (how could a circuit court overrule a

Supreme Court decision?), but instead was attempting to

harmonize and integrate the Pell case with the Daniels and

Davidson decisions.

Daniels directly centers on conditions of confinement

[at 663], as does Davidson [at 669]. This case likewise

bottomed on conditions of confinement. To ignore Dan-

17 The Fifth Circuit’s discussion of Bell v. Wolfish is found

in context at App. A, 51-61. Nowhere in its opinion does the

Circuit Court expressly attempt to overrule the Bel/ holding, in

toto or in part. Its ruling must be read in context with the

impact Daniels has on Bell.

18

iels and Davidson would be as unwise by the Circuit Court

as it would be to pay blind homage to Bell.

This case still doesn’t alter the fact that in cases where

the conditions of confinement amount to punishment under

the Fifth Amendment, the Beli standard should apply.

However, pursuant Daniels and Davidson, where such con-

ditions are caused by the mere negligence (lack of due

eare) of officials, then such negligence does not amount

to a deprivation of due process. Daniels does not say that

such conditions do not have to be abated if they amount

to punishment under the Fifth Amendment, nor does the

opinion in this case. In fact, such an application of Dan-

zels never presented itself to the Fifth Cireuit because

the conditions of confinement in the Lubbock Jail were

never shown to amount to punishment under the Bell

standard.

Petitioners assume without proof that defendants’

‘*policies were inadequate to protect detainees from sense-

less punishment’’ [Petition 21-22] and that the Fifth Cir-

cuit imposed no liability for such ‘‘punishment’’. As a

matter of proof, Petitioners failed woefully to prove such

punishing conditions of confinement in this case. A case

built on rhetoric and unproved accusations is not a legiti-

mate case for a writ of certiorari. Daniels and Davidson

makes conduct based on mere negligence not elevate to

Fourteenth Amendment protection. The Fifth Circuit was

merely following that dictate.

By clear implication, the Fifth Circuit was not in-

tending to ‘‘overrule’”’ Bell v. Wolfish as the Petitioners

19

allege.'® Petitioners make much ado about nothing be-

cause the Circuit Court didn’t say ‘‘knew or should have

known’’ instead of merely ‘‘knew’’. Petition 21-22, fn 17.

The point is, the Fifth Circuit was distinguishing between

standards of conduct and not looking for a way to excuse

hability. By this language, the Circuit Court simply said

that it would take more than mere negligence before con-

ditions would come under the microscope of Bell.

But even if the Fifth Circuit deemphasized the hold-

ing of Bell in this case, the District*Court adequately test-

ed the circumstances against the Bell standard. App. B

28a-3ia. In a thorough discussion, the District Court

found that the conditions of confinement did not amount

to punishment under Bell. Id.'°

Petitioners again attempt to create a conflict be-

tween cases, hoping this Court will hear this case for that

reason. Petition 23. However, the cases cited by Petition-

ers as being in apparent conflict with this case clearly do

not govern.2°. The decision in this case does not necessarily

conflict with Bell.

is “Only if the evidence suggests that the appellees [de-

fendants Lubbock and INS] knew of the jails’ conditions, or

intended to force the detainees to endure such conditions,

would a Bell analysis retain vitality.” App. A 6a.

as Accordingly, under Whitley v. Albers, at 1088, such a find-

ing may be urged to affirm the Fifth Circuit’s decision on this

point. And even though the Circuit Court minimized the im-

pact of Bell to these circumstances to some extent, it still in-

corporated the holding of the District Court regarding the Bell

standard: “[T]he District Court found that the individual ap-

pellees lacked any intent to punish the detainees.’’ App. A 6a.

se Anela v. City of Wildwood, 790 F.2d 1063 (3rd Cir. 1986),

can be distinguished on the harshness of the conditions alone;

(Continued on following page)

20

ARGUMENT UNDER QUESTION THREE

QUESTION 3: Whether the courts below erred in

holding that the conditions of confinement in Lubbock City

Jail did not amount to punishment in violation of the Fifth

Amendment or to a deprivation of Petitioners’ constitu-

tional or legal right to due process?

I. Case law and evidence supports the holding

of the courts below.

Petitioners allege throughout this lawsuit that spe-

cific conditions of confinement amounted to constitutional

deprivations and/or punishment, in spite of the evidence

ruled upon by the courts below. Petition 6, 8, 23.

Respondent City contends that the courts below did

not err in holding that the conditions of confinement in

Lubbock City Jail did nof amount to punishment in viola-

tion of the Fifth Amendment or to a deprivation of Peti-

(Continued from previous page)

such conditions were found to be constitutionally depriving,

unlike the conditions in this case. Lareau v. Manson, 651 F.2d

96 (2nd Cir. 1981), is a case dealing with long-term detainees’

conditions that were alleged to be cruel and unusual punish-

ment under the Eighth Amendment. The Eighth Amendment

prohibition is inapplicable to pretrial detainees, Bell at 535, so

such cases should also be inapplicable. Union County Jail In-

mates v. Di Buono, 713 F.2d 984 (3rd Cir. 1983) was a case de-

cided before Daniels, which also can be distinguished on the

facts from this case. In Union, there was a finding by the dis-

trict court that the conditions of confinement were constitu-

tionally depriving under Bell.

21

tioners’ constitutional or legal right to due process. There-

fore, there is no issue in this matter upon which writ of

review should issue.

The District Court in this case ruled, ‘‘in determining

the constitutionality of [Petitioners’] confinement, the

court must apply the due process clause of the Fifth

Amendment....’’ App. B 28a. The Court also said that

a trial court should apply this constitutional standard

‘‘after considering the totality of the circumstances sur-

rounding [Petitioners’] claims.’’ Id. The District Court

further noted that the Supreme Court ‘‘recognized in form-

ulating this test that de minimus violations do not trigger

liability. Ingraham v. Wright, 430 U.S. 651 (1977)... .”’

App. B 29a.

The District Court then ruled, ‘‘[A]pplying the Bell

standard to the claims of the [Petitioners], the court de-

termines that no constitutional violation has occurred.’’

App. B 29a.

Petitioners likened the problems in Medina v. O’Neill,

589 F.Supp. 1028 (S.D. Tex. 1984) to the conditions in this

ease. Petition 24. However, the District Court distin-

guished such case on the facts.”

Other case law supports the District Court’s ruling.

Compensatory damages can be awarded only if complain-

21 “[T]he voluminous record accumulated at trial wholly

fails to revea! constitutional violations such as those identified

in Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), and Medina

v. O'Neill, 589 F.Supp. 1040 (S.D. Tex. 1984).”” App. B 31a.

22

ants can prove an infringement of federal constitutional

rights. 42 U.S.C.4 1983; Owen v. City of Independence,

445 U.S. 622 (1980); Baker v. McCollan, 443 U.S. 137

(1979); Martinez v. California, 444 U.S. 277 (1980). Fur-

thermore, only conditions of confinement that are severe

or unconscionably intolerable or that violate basic concepts

of decency constitute unconstitutional deprivations. Novak

v. Beto, 453 F.2d 661 (5th Cir. 1971); Adams v. Pate, 445

F.2d 105 (7th Cir. 1971) ; Hoitt v. Vitek, 497 F.2d 598 (1st

Cir. 1974); Crowe v. Leeke, 540 F.2d 740 (4th Cir. 1976) ;

Sostre v. McGinnis, 442 F.2d 178 (2nd Cir. 1971), cert.

denied 404 U.S. 1049 (1972).

As to Petitioners’ claim of lack of supervision con-

stituting a due process deprivation, generally, alleging in-

adequate supervision, direction, or control, or supervisory

liability for inaction, will not support a claim for § 1983

purposes. Rizzo v. Goode, 423 U.S. 362 (1976).

An overview of complainants’ authorities on this ques-

tion of supervision indicates their reliance on cases that

have no weight to the instant case. Cases like Lareau are

cases turning on the issue of cruel and unusual punish-

ment under the Kighth Amendment. The Eighth Amend-

ment prohibition of cruel and unusual punishment is in-

applicable to pre-trial detainees. Bell, at 535. Lareau

also made a clear distinction in standards as regards the

length of the confinement. Id at 104-105. The law does not

require constant supervision unless to do otherwise would

constitute cruel and unusual punishment in violation of the

Eighth Amendment. Jones v. Diamond, 636 F.2d 1364

(5th Cir. 1981).

23

Petitioners complain that defendants deprived them

by ‘‘senselessly overcrowding them to the point that de-

tainees had to sleep on the concrete floor with only the

trash for bedding.’’ Petition 6. The facts prove there

was no overcrowding while Petitioners were incarcerated

in Lubbock City Jail. Furthermore, Petitioners’ argument

that overcrowding is unconstitutional is not even a valid

argument.” For overcrowding to be unconstitutional per

se, there must be such an effect on other conditions so as

to reduce them below a constitutional minima. Rhodes v.

Chapman, 452 U.S. 337 (1981); Pell. Petitioners failed to

prove that the conditions at the Lubbock City Jail fell be-

low a constitutional minima.

Numerous other cases with worse conditions than the

allegations in the instant case were held not to be viola-

tive of constitutional standards for incarceration. Griffin

v. Smith, 493 F.Supp. 129 (W.D.N.Y. 1980), included chal-

lenged prison conditions of ‘‘fungus-infested showers,’’

failure of officials to timely respond to inmate calls, and

‘lack of access to the regular visiting rooms.’’ The Dis-

trict Court in that case further said ‘‘that as uncomfortable

or disagreeable as these claimed conditions may be to

Plaintiffs, they simply fail to describe deprivations of con-

stitutional proportions.”’

In Novak v. Beto, supra, the court’s constitutional

standard was whether such conditions were ‘‘base, inhu-

man and barbaric.’’ In Novak, plaintiff had no mattress,

22 “Neither the number of inmates in one cell nor the amount

of space provided for an inmate in a dormitory alone deter-

mines whether confinement is cruel and unusual.” Ruiz v.

Estelle, 679 F.2d 1115, 1146 (5th Cir. 1982).

24

but it was not ruled to be depriving. Rather, a constitu-

tional deprivation was when plaintiff was subjected to un-

scionably unsanitary conditions. Id at 665.

The conditions in Adams v. Pate, supra, are similar to

the instant case, e.g. ‘‘dusty and dirt infested’’, yet they

were not ‘‘so foul, so inhuman and so violative of basic con-

cepts of decency’’ to be a deprivation of constitutional

magnitude under the Eighth Amendment, or any other

Amendment.

Petitioners further claimed that ‘‘lack of mattresses’’

in this case violated due process. Petition 23. The Dis-

trict Court ruled the great weight of evidence showed that

Petitioners were given adequate bedding. Petitioner Or-

tega never even complained about his alleged lack of a

mattress or any other conditions of his cell, even though

he had ample opportunity to do so. App. B 1la, 12a. Peti-

tioner Gonzalez was provided both a mattress and a blank-

et, and he slept on a bunk. App. B 12a-13a. Petitioners

did not prove as a matter of fact or law that they were

unconstitutionally deprived of bedding.

Further, there is no proof submitted that complainants

ever slept on the floor while housed in Lubbock City Jail.

Petitioner Ortega admitted that he slept on a bunk in a

cell with fifteen bunks. Transcript 215, 219, 230, 900.

Rather, the City cells utilized by defendant Border Patrol

were always equipped with metal bunks. App. B 14a. The

City also maintained a supply of mattresses and blankets

for use by detainees as late as when this lawsuit was filed,

and attempted to furnish detainees with such when needed.

Transcript 120, 186, 413-415, 422, 622-625. The District

Court likewise found that the City ‘‘continued to provide

25

personnel to supervise the jail as well as food, maintenance,

and bedding.’’ App. B 14a.

Petitioners complain of a lack of fire safety, but the

District Court found otherwise when weighing the testi-

mony and other evidence. App. B 18a.

Petitioners likewise complain that INS policy ‘‘severe-

ly limited visitation rights’’ of Petitioners.2> However,

the District Court found a legitimate justification for such

INS procedures. The court did not find any legitimacy to

Petitioners’ claim regarding attorney access, especially

since they were both afforded legal counsel. App. B 12a,

13a, 23a-24a. Petitioners wholly failed to prove any un-

constitutional deprivation based on delay in visitation and

attorney access. Via v. Cliff, 470 F.2d 271, 274 (3rd Cir.

1972); Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973) ;

Crusoe v. DeRobertis, 714 F.2d 752 (7th Cir. 1983). Crusoe

says that ‘‘the Due Process Clause provides that a pris-

oner must be allowed ‘meaningful access’ to the courts ...

in order to present. . . ‘violations of constitutional

rights.’ ’’ But it is only obstruction or prohibition of attor-

ney access that arises to constitutional infringement, not

a delay based upon the legitimate interests of the authori-

ties. Id at 755-756.

There was no evidence that Petitioners were ever de-

nied attorney access, only that it was ‘‘delayed’’ until Re-

spondent City could get the approval from INS. The City

had a compelling reason to seek such approval: Federal

23 “TA]s a result many aliens were deported before their

attorneys were able to speak with them or before they knew

an attorney had been hired for them.’ Petition 6.

26

detainees kept in City’s jail were INS prisoners, not City

prisoners. App. B 3la-32a. Respondent City had no jur-

isdiction or authority other than to feed and house the fed-

eral detainees. Id.

The findings of fact recited by the courts below, coup-

led with the cases argued above, clearly show that the

courts below did not err in holding that the conditions

complained of did not violate Petitioners’ rights nor

amount to punishment under the Fifth Amendment.

fay

Vv

ARGUMENT UNDER QUESTION FOUR

QUESTION 4: Whether Petitioners have standing in

federal court to litigate a 42 U.S.C. § 1983 claim alleging

due process deprivations under the Fourteenth Amend-

ment against Respondent City of Lubbock, considering the

restrictions of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.

1908 (1981), and notwithstanding the modification of Par-

ratt by the holding in Daniels v. Williams?

I. Petitioners have no standing to sue under

42 U.S.C. § 1983.

The decision in Dantels overruled Parratt ‘‘to the ex-

tent that it states mere lack of due care by a state official

may ‘deprive’ an individual of life, liberty or property un-

der the Fourteenth Amendment.’’ Id at 665. However, the

rest of the impact in Parratt apparently remains intact. It

is the remaining rule of Parratt that Respondent City con-

tends initially barred Petitioners from suing Respondent

City of Lubbock under 42 U.S.C. § 1983 upon the facts

found in this case.

27

Although Respondent timely filed its motion to dis-

miss pursuant to Parratt, the District Court never decided

on its merit but instead found for the defendants on other

grounds. App. B. The Fifth Cireuit affirmed, also on

other grounds besides Parratt. App. A.

Respondent City still contends that it is not liable as

a matter of law under the doctrine of post-deprivation rem-

edy as set forth in Parratt. Respondent alleges that Peti-

tioners are afforded an adequate post-deprivation remedy

available in state court that satisfies the requirements of

due process. Therefore, they are barred from bringing a

claim in federal district court under 42 U.S.C. § 1983 against

Respondent City of Lubbock. Parratt v. Taylor; Thibo-

deaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984).

ra’

Vv

CONCLUSION

Respondent City of Lubbock respectfully submits that

the opinion rendered in this case by the U.S. Court of Ap-

peals for the Fifth Circuit was clearly correct in all ma-

terial holdings; that the decision in this case is not in con-

flict with the decision of another federal court of appeals

or with applicable decisions of the U.S. Supreme Court on

the same matter, so as to call for a review by this Court;

that the decision in this case is not one which decided an

important question of federal law which has not been, but

should be, settled by this Court; and that, therefore, a re-

view on writ of certiorari should not issue in this case

because there are no special or important reasons to grant

such writ.

28

WHEREFORE, Respondent City of Lubbock, Texas,

and its Mayor, pray that the Petition for Writ of Cer-

tiorari be denied.

Respectfully submitted,

JoHn Cutver Ross, Jr.

CITY ATTORNEY

P.O. Box 2000

Lubbock, Texas 79457

JAMES P. BREWSTER

CIVIL TRIAL ATTORNEY

WiiuiaM Ken JoHNSON

ASSISTANT CITY

ATTORNEY

Attorneys for Respondent

The City of Lubbock, Texas

and Its Mayor

Pe ee oe rk eS

PETES ROT tes