# Petition for Writ of Certiorari — Shelby County Sheriff v. Leach

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1278%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 932

## Text

\1)89+1507 | Supreme Court, U.S.

FILED
No. MAR 26 1990

JOSEPH F. SAPNIOL, JR.
In The CLERK

|

Supreme Court of the United States
October Term, 1989

+

SHELBY COUNTY SHERIFF AND
MAYOR OF SHELBY COUNTY,
TENNESSEE,

Petitioners,

LARRY LEACH,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Sd

Peter M. BRown
Attorney for Petitioners
Suite 414

5384 Poplar Ave.
Memphis, TN 38119
(901) 682-3775

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I

Whether a municipality, in an official capacity suit
under 42 U.S.C. 1983, can be held liable for deliberate
indifference to the medica' needs of a prisoner when it
should have known of an unconstitutional custom or
policy without any governmental officials having actual
or constructive knowledge of the abuse.

II

Whether a municipality, in an official capacity suit
under 42 U.S.C. 1983, can be held liable for its failure to
investigate and punish, and hence ratify, an unconstitu-
tional policy or custom when its officials had no actual or
constructive knowledge of the acts that comprised the
policy or custom, and when those acts were done by
persons not under the control of, or employed by the
municipality.

il

TABLE OF CONTENTS

Page
CIR Pere POOL TOD oo nes ceassseccscavusenun i
Se ee EG 6 is cis eek sen ease wes enweheee wae 1
UNE os 06 S44 o a Seon ss vay es uns eeeaenteenees 2

CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED

oO FP 0.6 SSO C8 68 2 2 e- O-6.6 9.9 8 O16 See ee See
6. 6 @ @ O'6..3-9 6.4.8 6 28: 4-4 28-8 Ce
*e@. 6&2 6 © =.

ofa 0 2606 6 6 EU D-2 6. 66'S. 4 44 66.49 2 TO91S SS ee eee

ili

TABLE OF AUTHORITIES

Page
Cases
genes v. 5.71. Kress, 396 US. 144 (1970)............. 8
Brandon v. Allen, 516 F.Supp. 1355 (W.D. Tenn.
1981), aff'd in part, rev’d in part, 719 F.2d 151
(6th Cir. 1983), rev’d on other grounds sub nom,
Brandon v. Holt, 469 U.S. 464 (1985)........ ivi 7, 10
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ...6, 7
Daniels v. Williams, 106 S.Ct. 662 (1986) .............. 7
Jones v. City of Chicago, 787 F.2d 200 (7th Cir. 1986) ..... 6
Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977)............ 7
Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th
EE Sr ae ee ee 0
Marchese v. Lucas, 758 F.2d 181 (6th Cir.), cert.
nr Seat We CEO). ....... 2... ... 2. 10
Monell v. Dept. of Social Services, 436 U.S. 658
I 6, 8
Pembaur v. City of Cincinnati, 465 U.S. 469 (1986)..... 7
Polk County v. Dodson, 454 U.S. 312 (1981)............ 6
mezzo ©. Geome, 425 US. 362 (1976) ................... 7
Spell v. McDaniel, 824 F.2d 1380 (4th Cir.), cert.
denied sub nom, City of Fayetteville v. Spell, 108
I SU vase ees ssce ets ee esses 8, 9
uae we een, @ey LS. 42 (1988) ................... 11
Willis v. Barksdale, 625 F.Supp. 411 (W.D. Tenn.
EEE 1]

Zanghi v. Village of Old Brookville, 752 F.2d 42 (2nd
Cir. 1985)

iv

TABLE OF AUTHORITIES - Continued

Page
STATUTES AND OTHER AUTHORITIES
(Se eer eee | ere cnt REM ESS Le 2
Se Aas reac esc er kc Cee ees y ao
United States Constitution,
PP I eas code cece cb wkiihdns a teebicl: 2
Restatement, Agency Second,
Fi. SOR eR a Mee ALCO OCR Sous Ae yl mV REN SA, Jy 10

Section 94

No.

a
vy

In The

Supreme Court of the United States
October Term, 1989

a
_

SHELBY COUNTY SHERIFF AND
MAYOR OF SHELBY COUNTY,
TENNESSEE,

Petitioners,

LARRY LEACH,
Respondent.

7X
vw

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

a
\

Petitioners, the Shelby County Sheriff and the Mayor
of Shelby County, Tennessee, respectfully pray that a Writ
of Certiorari issue to review the Decision and Opinion of
the United States Court of Appeals for the Sixth Circuit
filed on December 20, 1989.

Ly.
4

OPINIONS BELOW

The decision of the United States District Court for
the Western District of Tennessee, Western Division, is
not reported. It was filed on September 23, 1987. The

Memorandum and Order Granting Judgment to Plaintiff
appears at Appendix A. The decision of the United States
Court of Appeals for the Sixth Circuit was entered on
December 20, 1989. It is reported at 891 F.2d 1241 (6th Cir.
1989), and appears at Appendix B. An Order Denying a
Rehearing En Banc was filed on February 8, 1990. This
Order has not been reported. It appears at Appendix C.

_
vw

JURISDICTION

The judgment of the Court of Appeals sought to be
reviewed was entered on December 20, 1989. An order
denying a rehearing en banc was entered on February 8,
1990. The jurisdiction of this Court is invoked under 28
U.S.C. 12540 |

&
4

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the
United States provides:

“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.”

42 U.S.C. 1983 provides, in pertinent part:

“Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Colum-
bia, subjects, or causes to be subjected, any citi-
zen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or other immunities secured
by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in
equity, or other proper proceeding for re-
dress... .”

STATEMENT OF THE CASE

In 1982, Larry Leach was shot by his victim while
committing a rape. He was rendered paralyzed from the
chest down. On July 30, 1983, he was found guilty of
aggravated rape and kidnapping, and immediately taken
to the Shelby County, Tennessee, jail to await sentencing.
Infra, at la-2a. A complaint under 42 U.S.C. 1983, was
filed in the United States District Court for the Western
District of Tennessee complaining that Leach’s treatment
while in the She'by County ‘ail violated his ig. th
Amendment right to be free fiom cruei and unusual
punishment. The Shelby County Sheriff and the Mayor of
Shelby County were named as defendants, in their official
capacities only. The matter was tried before the Honor-
able Odell Horton, Chief Judge, without a jury.

The trial court found that Leach’s treatment during
his first ten days in the jail was deplorable. During that
time, his mother contacted the Tennessee Department of
Human Services to complain about her son’s treatment.
Infra, at 4a, 9a. William Sellari, an employee of the De-
partment, made an investigation, including an on site
inspection with interviews. He found and prepared a
report finding that Leach and the other inmates in his
living area had been recently bathed, that the living area
was Clean, that Leach had no bed sores or ulcers on his
body, and that Leach had not complained of any mistreat-
ment. Infra, at 24a. After this visit, Leach received

humane treatment. When oe the jail some weeks later,
however, there was evidence that he had sores on his
ankles and buttocks. Infra, at 44A.

The treatment of prisoners in the jai’ was_.rdertaken
by the medical staff. These persons were not er ployed by
or under the control of the Shelby County Sheriff or
Mayor. They were there as a result of a contractual ar-
rangement with a local hospital to provide medical care
and treatment for prisoners in the jail. Leach’s own ac-
count involved only the jail medical staff, not the jail
security staff under the control of the Sheriff. Infra, at
16A-20A.

There was no evidence that the Sheriff or Mayor
knew about Leach’s treatment or in any way supported
the medical staff’s treatment of him. Infra, at 12B-13B.

The District Court found that “there was evidence of
numerous instances of abuse of paraplegic or physically
infirm inmates . . . (A medical corpsman) testified that the
same type of treatment provided (Leach) . . . was pro-
vided to at least 14 other paraplegics since the new jail
was opened.” Infra, at 51A. The facts do not support this
finding. The medical corpsmen indicated that up to sixty
paraplegic and quadraplegic prisoners had been in the
jail and none had filed any complaints. No proof of any
other complaints was presented. See testimony of medical
corpsmen Infra, at 13A-15A, 23A, 25A-27A.

The District Court found that there was deliberate
indifference to Leach’s serious medical needs and ruled
his Eighth Amendment right to be free from cruel and
unusual punishment had been violated. Deliberate indif-
ference was found because the medical corpsmen did not

carry out the orders of a doctor for Leach’s care. Infra, at
49A. He was awarded $10,000.00 damages. Infra, at 53A.

The Court made no specific finding that a custom or
policy of the Mayor or Sheriff was responsible for Leach’s
treatment. Infra, at 10B. Rather, the Court based liability
on the reasoning set out in the District Court’s opinion in
Brandon v. Allen, 516 F.Supp. 1355, 1361 (W.D. Tenn. 1981),
aff’d in part and rev'd in part, 719 F.2d 151 (6th Cir. 1983),
rev'd on other grounds sub nom, Brandon v. Holt, 469 U.S.
464 (1985). It held that “a supervisor employee, such as
the Sheriff, can be liable for the actions of a subordinate
when the supervisor knew, or should have known, of the
danger of a subordinate depriving an individual of a
constitutional right.” (Emphasis added) Infra, at 50A.

The Sixth Circuit affirmed. Leach v. Shelby County
Sheriff, 891 F.2d 1241 (6th Cir. 1989). It held that in an
official capacity suit, a suit against local government offi-
cials was actually an action against the local government.
Plaintiff must prove some “policy or custom so attributa-
ble to the municipality as to render it responsible for
payment of the damages found.” The Court first held that
the Sheriff should have known of the widespread viola-
tions involving treatment of paraplegics, even though he
had no actual knowledge of their treatment. The 14 ap-
parent incidents of paraplegic mistreatment were held
sufficient to create a custom or policy, and hence liability.
Next, the Court held that the failure of the Sheriff to
investigate and punish any wrongdoers amounted to a
“ratification of the illegal acts.” Finally, the Court held
that the contracting out of medical services did not re-
lieve the Sheriff of liability for the medical treatment of
prisoners in his jail.

¢

REASONS FOR GRANTING THE PETITION

Beginning with Monell v. Dept. of Social Services, 436
U.S. 658 (1978), this Court has defined the modern pa-
rameters of municipal liability under 42 U.S.C. 1983. Tak-
ing the express langauge of 1983, Monell held could be no
municipal liability on the basis of respondeat superior, but
rather only for a constitutional deprivation pursuant to
governmental policy or custom.

af

. a local government may not be sued
under 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execu-
tion of a government’s policy or custom, wheth-
er made by its lawmakers or by those whose
edicts or acts may fairly be said to represent
official policy, inflicts the injury that the govern-
ment as an entity is responsible under 1983.”

Id. at 694. Not only must a custom or policy be shown,
there must be an affirmative link between them and the
constitutional deprivation, City of Oklahoma City v. Tuttle,
471 U.S. 808, 823 (1985), such that they are the “moving

force” of the deprivation. Polk County v. Dodson, 454 U.S.
312, 326 (1981).

The affirmative link requirement in Tuttle, implies
that the municipality have some knowledge of the offend-
ing custom or policy and its consequences. Only then
could the municipality be shown to have acquiesced in or
implicitly approved the custom. Jones v. City of Chicago,
787 F.2d 200, 204 (7th Cir. 1986). The instant case held a
municipality liable without knowledge of the offending
policy or custom. This holding clearly goes beyond previ-

ous rulings on municipal liability and flies in the face of
reason.

Proof of a single incident is not sufficient to show a
custom. Tuttle, supra, at 821. If however, the single viola-
tion is the product of an unconstitutional custom or poli-
cy, liability may be shown. Pembaur v. City of Cincinnati,
465 U.S. 469, 480-81 (1986). Proof of fault must be proved
beyond mere negligence. See, Daniels v. Williams, 106 S.Ct.
662 (1986). The instant case showed only how Leach was
treated. While reference was made to 14 other para-
plegics, no proof of complaints by any of those persons

was presented; hence, there was proof of only one inci-
dent.

This Court has never addressed the specific issue of
whether a policy or custom can be shown based on the
inaction of the government when it should have known
of widespread unconstitutional conduct, without a show-
ing of actual or constructive knowledge of the abuse. See,
Brandon v. Holt, 469 U.S. at 473, fn. 25; Rizzo v. Goode, 423
U.S. 362 (1976). Such a standard bespeaks negligence, not
a constitutional deprivation.

The Court’s holding is more typical of negligent re-
tention of an employee in an action against supervisory
personnel in their individual capacities. See, i.e., Kostka v.
Hogg, 560 F.2d 37 (1st Cir. 1977). “Mere negligence in
permitting the continued employment of personnel, how-
ever, does not rise to the level of ‘action pursuant to
official municipal policy of some nature (which) caused a
constitutional tort.’ ” (Citations omitted) Zanghi v. Village
of Old Brookville, 752 F.2d 42, 45 (2nd Cir. 1985).

“There is no evidence that the Sheriff actu-
ally knew or supported the corpsmen’s actions
toward leach. Therefore, this is a situation
where the Sheriff should have known and acted.

Such a requirement implies an affirmative duty
to know and act.” (Emphasis added)

Leach v. Sheriff, supra, at 1247.

A custom or policy can be proved if it can be shown
that the unconstitutional practices were widespread and
persistent. Monell, supra, at 691; Adickes v. S.H. Kress, 398
U.S. 144, 167-68 (1970). This implies more than merely
showing the existence of a series of events; knowledge on
the part of the municipality must also be shown. The
Sixth Circuit failed to find that the Sheriff had any knowl-
edge of Leach’s treatment or of past alleged mistreatment
of paraplegics. Absent such a finding, the Court imposed
an onerous burden on the municipality and one that was
beyond previous holdings of this court.

The Leach court stated,

“The policy involved here is one of deliber-
ate indifference to the medical needs of para-
plegics and physically incapacitated prisoners in
the Shelby County Jail. The manifestation of this
policy here has two aspects: first, the Sheriff
failed to supervise his employees adequately
when he knew or should have known of the
danger that inmates such as Leach were likely to
receive inadequate care and second, the Sheriff
failed to investigate this incident and punish
those responsible, in effect ratifying their ac-
tions.”

Leach, supra, at 1247. The distinction between these two
“policies” was noted in Spell v. McDaniel, 824 F.2d 1380,
1389 (4th Cir.), cert. denied sub nom, City of Fayetteville v.
Spell, 108 S.Ct. 725 (1987). As to the first, the Court said,

4s

..., the specific deficiency or deficiencies
must be such as to make the specific violation

‘almost bound to happen, sooner or later,’ rather
than merely ‘likely to happen in the long run.’ ”
(citations omitted).

824 F.2d at 1390. As to the second policy, the Court stated,

“Municipal fault for allowing such a devel-
oped ‘custom or usage’ to continue requires (1)
actual or constructive knowledge of its existence by
responsible policymakers, and (2) their failure, as a
matter of specific intent or deliberate indif-
ference, thereafter to correct or stop the prac-
tices. Constructive knowledge may be inferred
from the widespread extent of the practice, gen-
eral knowledge of their existence, manifest op-
portunities and official duty of responsible
policymakers to be informed, or combinations of
these .

“A sufficiently close causal link between
such a known but uncorrected custom or usage and
a specific violation is established if occurrence
of the specific violation was made reasonably
probable by permitted continuation of the cus-
tom.” (Emphasis added)

Id. at 1391.

In Leach, the Sixth Circuit found a policy and custom
based upon both these theories, but without making a
finding that the Sheriff had actual knowledge of the
wrong. While a corpsman may have testified about 14
other incidents of mistreatment of paraplegics, Leach, su-
pra, at 1247, there was no evidence that any of those
persons filed complaints or otherwise set in motion a
series of events that would lead to a finding that the
Sheriff had constructive notice of paraplegic mistreat-
ment. In effect, the Sixth Circuit held the Sheriff, and
hence the County, liable for failing to supervise and

10

condoning actions about which he had no actual or con-
structive knowledge. Not even the event complained of
was shown to have been known by the Sheriff. If the
Sheriff had received any indication of Leach’s treatment,
it would have come from the Department of Human
Services investigator, who gave Leach a clean bill of
health and reported no complaints of mistreatment by
Leach or his cellmates.

There is no question but that the Sixth Circuit’s deci-
sion was based on prior knowledge. The District Court
decision in Brandon v. Allen, supra, was based on prior
complaints received by the police and testimony of the
general reputation of the police officer. On the ratification
issue, the court relied upon Marchese v. Lucas, 758 F.2d 181
(6th Cir.), cert denied, 480 U.S. 916 (1987). Knowledge of
a wrong, and a failure to act in face of that knowledge,
was the basis of Marchese. A judge ordered the Sheriff to
investigate complaints a prisoner made that he was beat-
en up. Condonation was implied when the Sheriff, in face
of the court’s order, failed to act or take corrective or
disciplinary action.

No finding of prior knowledge under either theory is
present in this case. The “should have known” standard
adopted by the Sixth Circuit is clearly a negligence stan-
dard, not a constitutional one.

Ratification is a concept under the law of agency. It is
an affirmation of a previous act by one acting on behalf of
a principal. There cannot be an affirmation, if the princi-
pal is ignorant of the facts involved in the original trans-
action. If one is unaware of the facts, he cannot affirm.
Restatement, Agency 2d, Sec. 91. While it is possible to

eR Oia Saati tre

11

affirm without acting. See, Restatement, Agency 2d, Sec.
94, comment a., when inaction acts a ratification, (here
must be some knowledge on the part of the principal of
the wrong, and a manifestation of approval through a
failure to act.

The Sixth Circuit found the Sheriff liable even though
the treatment of Leach was by the jail medical staff, who
were not employed by or under the control of the Sheriff.
Leach, supra, at 1248-50. Under Tennessee law, See, Willis
v. Barksdale, 625 F.Supp. 411 (W.D. Tenn. 1985), and under
this Court’s recent decision in West v. Atkins, 487 U.S. 42
(1988), it was held that contracting out the medical func-
tion did not relieve the Sheriff of his obligation to provide
at least minimal constitutional standards. The constitu-
tional infirmity was the deliberate indifference to Leach’s
medical needs. The proof was that Leach should have
been cared for by the medical staff, as per the doctor’s
orders. The Sheriff had no knowledge of his treatment,
nor was it shown that he had knowledge of other defi-
ciencies in the care of paraplegics generally. The perpetra-
tors of the wrongs were the medical staff, who were not
under the control of or employed by the Sheriff. The
proof is therefore totally devoid any causal connection
between the medics’ actions or inactions, and how the

Sheriff was the “moving force” of this “policy.” Supra, at
6.

rN
—_

CONCLUSION

This Court should grant the petition because the
Court of Appeals has decided an important issue that

12

goes beyond the holdings of this Court and is in conflict
with decisions of other federal appeals courts. Munici-
palities require a clear statement of the basis of their
liability so they can be guided in the management of their
affairs.

Respectfully submitted,

Peter M. Brown

Attorney for Shelby County Sheriff
and Mayor of Shelby County,
Petitioners.

Suite 414

5384 Poplar Ave.

Memphis, TN 38119

(901) 682-3775

» tat ieemntiehinetintanehietin stead ee oe

TABLE OF CONTENTS

APPENDIX A -—- Decision in the United States
Court for the Western District of Tennessee....... 1A

APPENDIX B —- Decision in the United States
Court of Appeals for the Sixth Circuit............ 1B

APPENDIX C - Order Denying Petition for Re-
hearing in the United States Court of Appeals
Ee 1C

errr

1A

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

Sheriff of Shelby County,
and BILL MORRIS, as Mayor
of Shelby County,

LARRY M. LEACH 7
Plaintiff, :
V. 5
* CASE NO.
EUGENE BARKSDALE, as 7 83-2745 H

Defendants.

MEMORANDUM AND ORDER
GRANTING JUDGMENT TO PLAINTIFF

(Filed Sep 23, 1987)
This lawsuit is one in which a state prisoner, Larry.
M. Leach, plaintiff, charges officials in the Shelby County
Jail, Memphis, Tennessee, were deliberately indifferent to
his serious medical needs while he was confined in that
jail from July 30, 1983, to September 11, 1983.

Larry Leach was convicted in the Criminal Court of
Shelby County, Tennessee, of the offenses of aggravated
kidnapping and aggravated rape. He was shot by his
female rape victim resulting in the paralysis he has suf-
fered since October 21, 1982. He is serving an eighty-
three (83) year sentence in the prison hospital at the State
Penitentiary in Nashville, Tennessee. In addition to the

2A

kidnapping and rape convictions, he has also been con-
victed of the offense of attempt to commit a felony. It is
therefore obvious Mr. Leach has been convicted of despi-
cable and deplorable crimes.

Evidence presented to the Court during the trial
shows that Mr. Leach is a paraplegic who is paralyzed
from the nipples of his body down. He has severe mo-
bility problems. His knees stiffen or “freeze up” on him.
Without proper care, he is prone to decubitus ulcers
which are commonly called bed sores. He is unable to
handle many of his basic body functions.

Contentions of Plaintiff:

In general, plaintiff contends that while incarcerated
in the Shelby County Jail, his serious medical needs were
not met. Due to the gross negligence and deliberate indif-
ference of the defendants, Leach claims he was deprived
of the right to due process of law under the Fourteenth
Amendment and suffered cruel and unusual punishment
in violation of the Eighth Amendment to the Constitution
of the United States.

Larry M. Leach claims officials at the Shelby County
Jail were deliberately indifferent to his serious medical
needs during the time he was housed in that facility from
July 30, 1983, to September 11, 1983. He claims he was
denied basic essentials to provide for his serious medical
needs. Mr. Leach is a paraplegic. He is paralyzed from the
nipples of his body down. He has the use of his arms. He
has severe mobility problems. His knees stiffen or “freeze
up” on him. He is unable to handle many basic bodily
functions. |

es

eee

3A

He is extremely prone to life threatening bed sores or
decubitus ulcers as he is unable to move his body at
various pressure points. All medical care in the Shelby
County Jail is under the direction of Mr. John Bunso, who
is not a physician or nurse, but an ably trained Emergen-
cy Medical Technician. Mr. Leach saw a physician only on
one occasion during his confinement and that was when
he arrived at the jail. At no other time did he see a

physician while he was incarcerated in the Shelby County
Jail. |

When he was carried to the jail, he was placed in a
cell on a cot about two feet high. The cot did not have a
proper mattress. Because he must turn in bed to prevent
bed sores, an appropriate bed is a hospital or king or
queen size bed. A jail cot was not an appropriate bed for
a paraplegic. Leach must make transfers back and forth
from bed to chair. It is very difficult going back and forth
from a wheel chair to a bed.

While in jail, Mr. Leach was assisted by inmates. The
first ten days he was in jail, Leach was on a mattress
about 1'/2" thick. Its vinyl covering caused pressure prob-
lems which lead to bed sores.

Mr. Leach did not receive a bath until he had been in
the jail nine or ten days. This lack of a bath aids the
breakdown of skin and causes bed sores. Mr. Leach could
not use the tub in his cell. Mr. Leach must evacuate his
bowels every two days. He could not get on a commode.
Though he had bowel training, he did not have supposi-
tories. He had problems with catheters. He was constant-
ly wet in his own urine during his stay in the jail. There

4A

was another prisoner in his cell who had to lie in his own
body excretions unattended in the jail.

After Mr. Leach had been in the jail about ten days,
everything changed. This change in his level of care
occurred because a complaint had been made by his
parents to the Tennessee Department of Human Services.
After about ten days, the personal care of Mr. Leach
became the responsibility of Howard McClatcher, an in-
mate, who provided care as well as he could. Leaci
developed bed sores on his ankles, heel, and sacul area.
He had undergone surgery twice for bed sores.

The attitude in the jail was that jail personnel did not
want him in the jail. He was ignored and the overall
conduct of jail personnel responsible for his medical care
was shocking.

Contentions of Defendants

In general, the defendants contend Leach was pro-
vided adequate and sufficient medical care while incar-
cerated in the Shelby County Jail and deny that his
constitutional rights were violated. Defendants contend
the Shelby County Jail is only a pretrial detention center
and Leach was moved out of that jail as quickly as he was
sentenced.

Defendants contend deliberate indifference to serious
medical needs is a relative term. Mr. Leach was not an
acutely ill person. He was disabled as a result of a gun
shot wound. He did not have daily needs and did not
require extensive or intensive treatment. Leach went
through a program of rehabilitation and achieved a high

ae

5A

level of independence. He could take care of many of his
own needs. He chose not to do so. He was given the level
of medical care his condition required.

Issue Before the Court:

The issue before the Court is whether the defendants
were deliberately indifferent to the serious medical needs
of Larry Leach, a convicted rapist and paraplegic, while
he was confined in the Shelby County Jail from July 30,
1983, to September 11, 1983. In the pretrial order, the
parties stated the issue in a slightly different way:

Whether the actions of the defendants were

gross negligence or deliberate indifference to
the serious medical needs of plaintiff.

If the Court so finds, then:

What was the nature and extent of damages
to the plaintiff caused by the actions of the
defendants.

Larry Leach claims the defendants were grossly negligent
and deliberately indifferent to his serious medical needs.
The defendants deny they were grossly negligent and
deliberately indifferent to the serious medical needs of
Leach.

The plaintiff and defendants agreed to the following
stipulations.

1. That plaintiff suffered a gunshot wound on
October 21, 1982, which transected his spinal
cord at the level of T-3.

2. That plaintiff since October 21, 1982, has
been a paraplegic from the nipple level of his
chest down.

6A

3. That since October 21, 1982, plaintiff has had
no sensory or motor function in his body below
about nipple level of his chest.

4. That during plaintiff’s hospital stays prior to
incarceration in the Shelby County Correctional
Center (sic), plaintiff developed a severe scar-
odecubitus ulcer.

5. That plaintiff was incarcerated at the Mem-
phis, Shelby County Correctional Center (sic)
from July 30, 1983, to September 11, 1983.

Pid
6. That plaintiff's family presented medical
supplies for plaintiff's use to jail authorities on
July 31, 1983.

7. That plaintiff was denied the use of a “trans-
fer board” from July 30, 1983, to September 11,
1983.

The overwhelming preponderance of the evidence
leads the Court to find and conclude that during the first
ten or eleven days of Leach’s confinement in the Shelby
County Jail, officials in that jail charged with providing
medical care to Leach were grossly negligent and deliber-
ately indifferent to Leach’s serious medical needs. The
Supreme Court of the United States has ruled that a
person convicted of a crime is not “wholly stripped of
constitutional protections when he is imprisoned for
crime. There is no iron curtain drawn between the Consti-
tution and the prisons of this country.” Wolff v. McDon-

935 (1974); Mechum v. Fano, 427 U.S. 215, 224-225, 96S. Ct.
2532, 2538, 49 L.Ed.2d 451 (1975). Borrowing the words of
Justice Frankfurter, from another context, the conduct of
jail officials toward the paraplegic, Larry Leach,

. more than offended some fastidious squeamishness

or private sentimentalism ... ” “This is conduct that

a ye ee

7A

shocks the conscience.” Rochin v. California, 342 U.S. 165,
172 (1951). The Court will enter an appropriate judgment
in favor of plaintiff Leach and against the defendants
based upon the Court’s finding that the preponderance of
the evidence shows the defendants were, during the first
ten days of Leach’s confinement, deliberately indifferent
to his obviously serious medical needs.

Frances Leach, mother of Larry Leach, testified her son
is a paraplegic. He entered Baptist Memorial Hospital
Rehabilitation Center, Memphis, Tennessee, in March,
1983, where he remained several months for treatment.
During that time, she visited him regularly, at least five
times weekly and observed his treatment. She read books
pertaining to his treatment which were provided to her
by the Center.

He underwent surgery at St. Francis Hospital, Mem-
phis, Tennessee, for a decubitus ulcer located at the base
of his spine. After the surgery, he was moved to her home
where he remained until about May 25, 1983. At that
time, he was admitted to Baptist Hospital in Memphis,
Tennessee, for a second surgery to treat the reoccurrence
of the decubitus ulcer. From March of 1983 until May of
1983, he had a decubitus ulcer at the base of his spine that
would not heal. Rehabilitation center personnel taught
Mrs. Leach how to treat that type of ulcer. At the same
time, Leach’s hips and knees were getting stiffer. Reha-
bilitation personnel showed her how to prevent that from
happening.

Leach underwent the second surgery on or about
May 25, 1983, and was discharged from Baptist Hospital
to her home on June 6, 1983. The surgery was, she said,

8A

fine, though he was weak. He could sit up about twenty
minutes at a time. She said they used a transfer board, a
highly polished board which allows a paraplegic to be
moved about by sliding. She said Leach was on his stom-
ach a lot. He had to turn often to prevent bed sores. As he

gained strength, he could sit up about two hours at a
time.

From June 6, 1983, until he entered the jail on July 30,
1983, she assisted her son with bladder and bowel train-
ing and in the use of the transfer board. Bowel assistance
required his being turned on his left side, placing two
pads under him and one on top of him. He was given five
or six rubber gloves, lubricant ointment and supposito-
ries. He put on a glove and used his hands to evacuate
his bowels. After this process was completed, which re-
quired about forty-five minutes, he was bathed and dried
by Mrs. Leach. This procedure was followed every other
night from June 6, 1983, to July 30, 1983.

Bladder protocol required the use of a catheter which
was inserted into the bladder. This required the use of a
tray, lubricant jelly, forceps and rubber tube. Leach clean-
ed himself with a sterile pad and after following a pro-
cedure, inserted the catheter, with tube attached into his
bladder. Urine flowed through the tube into a plastic tray.
From June 6, 1983, to July 30, 1983, this procedure was
followed twice daily. Leach wore a catheter during the
day and urine flowed into a bag attached to his leg. At
night, a larger bag, called a bed bag, was attached to his
bed.

For bathing, Leach used a portable hand-held show-
er. He shaved his upper body. His father washed his back

SS

9A

and lower extremities. He was able to dress himself from
the top, such as put ona shirt. He could not reach his feet
and thus could not dress at that level.

When he entered the Shelby County Jail, on July 30,
1983, he had no bed sores. The surgical scar was visible.
Mr. and Mrs. Leach checked their son at night for bed
sores, for pressure points and for spots indicating pres-
sure. When such spots were seen, they were massaged
and Leach was turned.

To aid sleeping, pillows were used at night under
various pressure points, two at the head, one at the chest,

the hips, the knees, and one under and one between his
feet.

When the time approached for Leach to enter the
Shelby County Jail, Mrs. Leach talked with a man at the
jail by phone identified as Ronald Hester. She said this
person told her she could bring the various supplies to
the jail needed by Leach. She said he told her they did not
have those supplies in the jail and those she brought
would be used until supplies could be obtained. On Au-
gust 8 or 9, 1983, she complained to the Tennessee De-
partment of Human Services about the lack of care her
son was receiving in the Shelby County Jail.

Alvin E. Leach, father of Larry Leach, testified, that
from March of 1983, to July 30, 1983, his son, Larry Leach,
lived in the family home. He is a paraplegic. He assisted
with the care of his son in his home. He obtained special
medical chairs for his son’s use as he could not get in and
out of the bath tub otherwise. One chair fit into the tub
and had suction caps on the legs to hold it in place. He
also had a commode chair which was placed over the

10A

commode. With the use of the transfer board, Leach could
be moved into the shower chair and could use a hand
shower. He washed his lower back and lower extremities.
He said Leach’s decubitus ulcer had healed, even though
it was tender. There was only the surgical scar.

He saw his son on Saturday, July 30, 1983, about 4:30
p-m., when he entered the Shelby County Jail. He had a
transfer board. He saw his son the following day, July 31,
1983, when he carried medical supplies to the jail, includ-
ing medications, catheter materials, rubber gloves, urine
bags, petroleum jelly and other items. To his surprise, the
officer on duty permitted him to visit with his son.

On August 1, 1983, he carried various items of
clothing to the jail for the use of his son, such as under-
shirts, shorts and socks. He next saw his son at the jail on
August 6, 1983. He said he looked like he was feeling all
right. He did not look sick but he did not look too clean.
His clothing was not fresh. A yellow stain was on his
socks, which appeared to him to be urine. He did not
appear to have had a bath.

Beverly Lewellen Burress, sister of Larry Leach, testi-
fied she visited her parent’s home almost daily. Before
Leach entered the jail on July 30, 1983, he was basically in
good health. He had recovered from surgery. He was
having some difficulty with stiffness in his joints. He was
clean.

Mrs. Burress said she visited Leach in the jail on July
31, 1983, and weekly thereafter. She said he seemed to be
okay. Later, when she visited him, he did not appear to
have had a bath. His hair was greasy, dirty looking. He
was wearing socks that had a golden looking stain on

11A

them. His pants were wet in the area of the fly. During
later visits, he appeared to be cleaner. On one visit, she
noticed his foot had a bandage on it. He told her his leg
jerked during the night and his foot hit his wheelchair
injuring his foot.

Howard McClatcher, forty-five, an inmate trusty at the
Shelby County Jail, testified he had been convicted of
rape and third degree burglary in 1967 and aggravated
rape in 1982. He said he was a trusty at the jail from mid
1982 to 1983. His duties included helping care for para-
plegic inmates, cleaning offices, cleaning the jail medical
clinic, and run errands and other chores. He said “Dr.
Bunso”! was in charge of the jail medical clinic along
with others identified as corpsmen. He said there were
nurses assigned to the jail but they treated female, not
male, inmates.

He said he saw Leach once on Leach’s fifth day in the
jail, which was after Leach’s family brought supplies to
him at the jail. He said Leach was ina cell which contain-
ed iron bunks with a mattress about three inches thick.
He said the bunk was lower than Leach’s wheelchair,
perhaps about ten to twelve inches lower. He said Leach
had trouble getting in and out of the bunk and into and
out of the wheelchair.

He said Leach requested something to support him
for getting out of the bunk into his wheelchair; but, he
said, Leach did not receive it. He said he had to help
Leach get on and off the steel commode. It was very
difficult for Leach to do. He said after Leach had been in

1 Mr. McClatcher referred to Mr. Bunson as Dr. Bunso.

12A

the jail about ten to twelve days, he asked “Dr. Bunso” if
he could use one of the jail’s hospital beds and “Dr.
Bunso” said it would be okay to do so.

When he first saw Leach in the jail, Leach was on his
jail bunk. His clothes were wet. His bag was wet. A man
called “John Doe” was in the cell at the time along with
an old man who was in bad shape and could not walk. He

said no one knew the old man and no one cared about
him.

He said he saw Leach again about the tenth day that
Leach had been in the jail. At that time he was assigned
to care for him constantly, which he did until he left the
jail. Mr. McClatcher said some “pretty strong” people
came by and Leach was provided with bedding, pillows,
and things relating to Leach’s care began to change. The
first time he bathed Leach his clothes were in real bad
shape from being soiled. His socks were soiled. He help-
ed him with bowel training. Some catheters were too
small and there was urine overflow. He said he told a Mr.
Joe and Dr. Bunso. Mr. McClatcher said he saw sores on
Leach’s lower back and a bruise in his “right cheek.” He
also saw a sore on his right ankle.

McClatcher said once he talked with Dr. Bunso and
asked him if he could take care of Leach. Dr. Bunso gave
him permission to do so. However, once he said Dr.
Bunso responded to a request for Leach by saying:

He’s getting everything he wants. What else

does he want. He put himself in this shape.

Mr. McClacher [sic] said he saw Leach on the fifth
day Leach had been in the jail and he smelled the odor of
urine. He said he asked Dr. Bunso if he could place a

13A

mattress from a hospital bed on Leach’s cot and was
given permission to do so. He said he told Dr. Bunso the
cell was filthy and needed cleaning. He said Dr. Bunso
responded “rock men” did that and it was not his respon-
sibility.

Willie C. Matthews, thirty-three, testified he was con-
fined in the Shelby County Jail in 1983 in L Pod for three
or four days and was known as “John Doe.” He suffered,
at the time, a leg injury and wore a leg brace, though he
did not wear the brace in jail as he then had an infected
foot. He said he met Larry Leach in the jail and did not
know him before that time.

He said he helped Leach out of the wheelchair into
bed. Leach complained of wrong size catheters, wet his
clothing and constantly complained of his physical condi-
tion while he was in the cell. Leach was unable to do
anything for himself. He said he did not see any medical
corpsmen assist Leach. He said he assisted Leach. During
the time he was in the cell, Leach was not taken out of L
Pod. He admitted he has been convicted of burglary,
attempted burglary and stolen mail offenses.

Robert Lee Alvoid, Medical Corpsman and trained
Emergency Medical Technician, testified he was employ-
ed in the Shelby County Jail during 1983. His duties were
to provide medical care to jail inmates under supervision
of a physician. He said he recalled Larry Leach who was a
paraplegic. He said the corpsman staff met to decide
what Leach’s needs were and discussed his care and
physical well being. He said a history was made and
Leach was physically observed for injuries and rashes.
His medications were discussed. He said Leach had no

14A

complaints about headaches or other pain. He said Leach
had no need to see a physician, and there was no reason
to take him to a hospital. He said he saw Leach twice
daily while working his 8:00 a.m. to 4:00 p.m. shift. He
said he saw Leach anytime he wanted, as well as during
his regular jail rounds. Mr. Alvoid further stated able-
bodied men were placed in the cell with Leach in case he
needed help.

He said Leach was in a special cell, L Pod. The cell
was clean. He never saw it dirty. He said there were no
pillows. No one in jail had pillows. Leach was given extra
blankets. He said a hospital mattress was supplied Leach
on or about the third day he was in the jail.

He said he was responsible for bathing Leach and
bathed him about four times during his first few days in
the jail. Later he stated he bathed Leach the first time
during Leach’s third day in the jail. After the first ten
days, Leach was bathed by Howard McClatcher, an in-
mate. He said Leach was taken to the medical area for
baths.

An extra supply of clothing and medical supplies
were available to Leach as well as additional clothing and
supplies for his cell use. He said he checked Leach’s
catheter for leaks and never saw or found him wet.

Discussing entries on the jail medical record, Mr.
Alvoid verified the following entries:

August 2, 1983, Leach given his meds and 9:00
am, given urine bag.

August 3, 1983, Two entries - given meds, and
one entry by Mr. Bunso

15A

August 4, 1983, given meds this a.m.
August 8, 1983, meds given this a.m.
August 9, 1983, meds given this a.m.

August 10, 1983, meds given this a.m., voiced no
complaints.

August 11, 1983, no complaints.
August 12, 1983, given bath.

August 15, 1983, given bath, enema, bowel train-
ing, no medical complaints, clean clothing, etc.

August 16, 1987, no medical complaints.

August 17, 1983, no medica! complaints

Mr. Alvoid admitted the record shows nothing but
meds the first ten days Leach was in the jail and that a big
improvement started on August 11, 1983. He said he did
not always put an entry into the records on everything,
but this procedure was out of line with his normal pro-
cedure. These entries in Leach’s jail medical record show
that Leach was given a bath on August 12, 1983, and a
bath, bowel training, and clean clothing on August 15,
1983. The Court does not find the testimony of Mr. Alvoid
relating to the care of Mr. Leach to be credible.

He said Leach had a bed bag but that Leach was a
very uncooperative person. He said it seemed like Leach
really did not appreciate the job they were doing for him
in the jail with what they had to work with. He said that
given the constraints they worked under, Leach was pro-
vided for adequately. At the time, he said the jail housed
about one thousand inmates. He said he spent about six
minutes with Leach in his cell each morning and that was
a long visit usually visits were shorter than six minutes.

16A

Larry M. Leach testified he is confined in the State
Prison Hospital, Nashville, Tennessee, and has been con-
fined there for three and one-half years. He is serving an
eighty-three year sentence following convictions for the
offenses of aggravated kidnapping and aggravated rape.
He was shot by his rape victim and has been paralyzed
since October 21, 1982. He said he has been hospitalized
twice for surgery to care for a decubitus ulcer condition,
first, at St. Francis Hospital for six to eight weeks and
thereafter at Baptist Hospital East because the first sur-
gery was not completely successful. He was also hospi-
talized in the Baptist Hospital Rehabilitation Center for
about eight weeks. There he was trained to care for
himself to the extent possible, including training in bowel
training, getting in and out of a wheelchair, catheterizing
himself, sterile procedures, physical/occupational thera-
py, and training in lifting weights and other exercise.

He said he is paralyzed from the chest down, has no
feeling in his legs, the trunk of his body or the hip area.
He suffers invoiuntary muscle spasms. He can do his own
bowel training with some assistance on the transfer board
and someone making sure he does not fall. Help is re-
quired to get pads under his body, get rubber gloves, K-y
jelly and suppositories. Afterwards, he needs help in
getting the pads from under him and in cleaning this area
of his body.

He can shower his upper body with a flexible shower
apparatus, shampoo his hair, but cannot shower his lower
extremities. The joints of his body stiffen and this causes
him considerable problems. He said his joints freeze. He

cannot dress his lower extremities but has been trained to

17A

use a dressing stick,, which is about three feet long. It
helps him put on a belt, pants and socks to some extent.

After his trial, he entered the Shelby County Jail. He
had some clothing in case he suffered an accident. He had
a transfer board which is used to siide his body from one
area to another. That board was taken away from him
when he entered the jail. He saw it again when he was
transferred to Nashville, Tennessee, where he does have a
transfer board for his use.

When he entered the jail, he saw a person he believed
to be a physician who interviewed him and asked him
about his physical condition. Leach said he explained
what he thought his needs would be. He said he told the
physician about his clothing, bowel movements, medica-
tions and his physical limitations. The physician took his
blood pressure, temperature and talked with him in gen-
eral and he was then sent upstairs. When he arrived
upstairs, he was “dressed out.” That is, his street clothing
was taken and he was issued color coded jail clothing. He
was then assigned to L Pod on the second floor of the jail
where he remained during his confinement in that jail.

Leach said the cell in which he was confined had two
steel bunks with about a one and one-half inch to two
inch fiber filled mattress on it. He had his wheelchair in
the cell. He said it was very difficult to get out of and
onto the cell bunk from his wheelchair. He said there was

about a twelve inch height difference between the two.
He was afraid to try the transfer because of the difficulty
and because of his two surgical procedures. He said these
efforts caused his feet and ankles to bang around quite a
bit. He said it would take him ten to fifteen minutes to

18A

get from bed to chair. He attracted attention by banging
on his cell door. He said the jail bunk was not suitable to
his needs as it was not adequate for rolling or turning. He
said he complained time and time again to jail personnel
about his situation. Their response, he said, was they did
not have items for his needs. Leach testified this was not
correct as there was a hospital section in the medical area
of the jail with an appropriate bed and adjustable tables
and other items. At the Shelby County Jail, Leach said he
specifically complained to Dr. Bunso and a corpsman
named Joe. He said “Dr. Bunso” told him that was all
they had. He said when he received medication, he com-
plained about his hygiene problems. The response he
received were usually along this line:

We will have you see the doctor tomorrow.
Wait until later.

We don’t know what to do about that.

He said Dr. Bunso was not cooperative at all and seemed
not to care whether he had any help. He said the bath tub
was too high and he could not get into it. The commode
was too low and had no padding on it. He said he had
soap. He tore off part of a towel and used it for a wash
cloth. He said he could not wash his legs and “rear end.”

He said another inmate in the cell named John L.
Johnson was in bad shape and jail personnel would not
care for him. He was lying on the floor, sick at the
stomach, moaning and groaning and lying in his own
excrement which Leach called debris and urine.

Leach said he got to see a “real doctor” on or about
his fourth day in the jail. He talked with the physician in
the office and Mr. Bunso was in another office. Leach said

19A

he told the doctor he was a T-5 complete invalid. The
physician put him on an every other day bowel training
schedule in bed as there were no facilities for commode
accommodation. He said the doctor told Dr. Bunso to let
him have bowel movements using suppositories. He said
Dr. Bunso told him, Leach, they did not have supposito-
ries and he could use an enema. Finally, he said Dr. Bunso
told him to hell with the procedure, sent him back with
the promise to take care of it later. He said he had a bowel
movement the first time on his fifth day in the jail and
again five days later.

Leach said he had problems with his use of the
catheter. He wore a leg bag when he was out of bed and
had the use of a bed bag when in bed. He said he had
problems with wet clothing as the catheter he had was
too large and he did not have skin bond cement. He said
he repeatedly complained about leg bag/bed bag prob-
lems and wetness. He said Mr. Bunso told him you will
have to do what you have to do.

He said his mattress was changed after he had been
in the jail about ten days. He said he received a bath
about the ninth or tenth day in the jail. He said he was
filthy from having lain in his own urine and feces. He
said he suffered muscle spasms and once injured his foot
due to a muscle spasm causing his foot to hit his wheel-
chair. He said he did not receive any range of motion
exercises while he was in the Shelby County Jail.

He said he could not take his socks off. His family
washed his socks and inmates washed his underclothing

He said there was a call button on the w all behind
the commode in his cell but he could not reach it. He did

————eee™”™~™”—”—s—s-Sst (

20A

have telephone privileges. He called his family and tried
to reach his attorney to tell them he was miserable and
feared a reoccurrence of bed sores and the decubitus
ulcer.

After he had been in the jail about ten days, a crew of
inmates entered his cell with mops, buckets, cleaning
materials and cleaned the place from top to bottom. He
was given clean clothing. There had been no such clean-
ing before. Then, he said a man from the Tennessee
Department of Human Services or the Health Department
visited his cell after complaints made by his mother.

After the visit of that official, his treatment in the jail
“turned around one hundred percent.” They brought a
mattress in. He was given clean sheets and extra clothing.
He had a bath for the first time and bowel training which
was supposed to be every two days. It got better but
never reached the medically prescribed schedule He was
taken to the hospital side of the jail for services. After
about two weeks, when the inmate who agreed to help
him was transferred, his treatment reverted back to about
like it was at first, such as missed medications, baths and
bowel training.

The first ten days he was in the jail, his lack of
treatment was a mental strain upon him and he said it
took a lot out of him physically. He said he experienced
frequent headaches and a burning pain sensation 1n his
tail bone area.

On cross examination, Leach admitted he was shot by
the victim of the rape he committed and has, in addition
to his present conviction for aggravated kidnapping and
aggravated rape, been convicted of attempt to commit a

21A

felony. During cross examination, he testified to the fol-
lowing chronology of events.

1) From May - 1983 to June 6, 1983, he under-
went surgery at Baptist Hospital East for surgi-
cal treatment of a decubitus ulcer which had not
completely healed from a previous surgery.

2) From June 6, 1983, until July 30, 1983, when
he entered the Shelby County Jail, he was at the
home of his parents in Memphis, Tennessee.

3) After he left the Baptist Hospital Rehabilita-
tion Unit from on or about March 25, 1983, to
May 25, 1983, he was in the home of his parents.

4) He entered the jail July 30, 1983, and re-
mained in the jail for about forty-one days -
until September 12, 1983, when he was trans-
ferred to the State Penitentiary in Nashville
Tennessee. He is confined in the penitentiary’s
hospital and has been there three and a halt
years

Captain A. Guasco, Detention Officer, testified the jail
Operates a computerized tracking system which records
the movements of prisoners within the jail. His testimony
related to movements of Larry Mason Leach within the
jail from July 30, 1983, to September 12, 1983. While the
records showed Leach was returned to his cell on thirty-
six movements, there could have been more. Those re-
cords show that from July 30, 1983 to August 12, 1983,
Leach visited the medical clinic four times, On August 1,
1983, August 2, 1983, August 3, 1983, and August 12,
1983. He said the hospital facility within the jail had
never been opened, even though some inmates spend as
long as a year in that jail

22A

Dr. Albert M. Jones, M.D., testified he was employed
by the mayor of Shelby County and assigned to the jail
part time from July, 1983, until August, 1983. He left his’
employment with the jail by resigning on August 6, 1983.
He said on July 1, 1983 the Shelby County Health Depart-
ment turned the jail over to the county and the mayor
employed him.

He saw Larry Leach the first time on August 1, 1983.
He noticed Leach was a paraplegic, spastic with no sensa-
tion from the nipple down and posteriorly from the scap-
ula down. His general physical condition was good and
he was in no acute distress. He observed no tenderness.
There was a surgical scar from treatment of a decubitus
ulcer. The skin was intact and he did not need acute
medical care. His symptoms related to his paralysis. He
noted that on July 31, 1983, Leach was seen by a jail
corpsman. He was on a stool softener and a urinary
antiseptic. He was not on any medication for pain. He
said Mr. Bunso is a corpsman with a very good academic
record and may have been first in his class. He was
impressed by his ability to handle inmate patients.

He said Leach was not facing any life threatening
ailment. He has observed the care of paraplegic patients.
They need to be kept clean. An ordinary mattress is
insufficient. He did not visit Leach’s cell. He saw Leach
only once and that was on August 1, 1983

Dr. Jones said his orders for Leach were for Leach to:
1) Return to the clinic daily.

2) Receive saline enema in clinic every third
day.

3) Flush leg bag in dispensary

23A

Dr. Jones said he never observed these things being done.
Dr. Jones said it is very bad for skin to be wet with urine.
He said moist feces on skin will cause skin problems
depending upon how wet or dry the skin is, and the
amount of feces. He said at Oakville Hospital in Mem-
phis, Tennessee, when he was on the staff, paraplegics
were bathed daily.

Joseph Charles Bukewicz, Corpsman at the jail, testified
he served as a U. S. Navy Corpsman First Class for
fourteen years. His assignment at the jail was to perform
reguldr medical services to its inmates. He said he saw
Leach a few times and talked with him and was familiar
with his case and his treatment. He said he did not havea
great deal of contact with Leach and was not responsible
for his care. He said he did not really treat Leach except
once when he put a bandage on his foot and ordered
supplies for him.

He said Leach was taken to the infirmary about twice
during his first ten days in the jail. He said Leach really
did not complain too much. He did not hear him com-
plain about any pain. He testified the first time Leach had
a bath was on August 9, 1983. He is not sure he saw
Leach during his first ten days of confinement in the jail.
He said Leach had been in isolation where there are two
to four hospital beds with bath tubs and sinks. He said at
the time Leach told him he did not want an enema. He
said Leach always had assistance when he bathed. He
said “there were always a few people back there.” He
said when hands-on treatment is provided an inmate, an

entry should be made in that inmate’s medical record

24A

William Sellari, Supervisor, Department of Human
Services, State of Tennessee, testified he was assigned to
investigate the complaint about Leach’s treatment in the
Shelby County Jail. He said the complaint was received
on August 9, 1983. He said the complaint reported that
Leach was a paraplegic, that he was not receiving ade-
quate care in the jail, had not received a bath in about
eleven days and had trouble with internal and external
catheter, and was on a plastic covered mattress. The
complaint also indicated the physician’s orders were ap-
propriate but not carried out. At that point, he said
Leach’s care had cost the state approximately $122,401.00.

Mr. Sellari said he went to the jail and saw Leach on
August 11, 1983. He said he called the sheriff's office on
August 11, 1983. He said his call was referred to an
Inspector Battle who was reluctant to discuss the circum-
stances concerning Leach’s confinement. He said he con-
tacted Corpsman Bunso who was somewhat irritated. He
said he went to the jail, talked with Leach but did not
find any evidence of neglect. He said Leach’s clothing
were clean, the sink in the room was clean, Leach had
been recently bathed. There was no odor or visible evi-
dence of feces or urine. There was no condition of de-
cubitus ulcer or bed sores on Leach. Two men in the cell
said both received plenty of food to eat. He noted there
was air conditioning and a color television in the cell. He
said Mr. Bunso gave information that Leach was receiving
adequate medical care. He said Leach was concerned
about his bowel training, getting that training started,
and he wanted more bowel training and medical atten-
tion.

25A

John Joseph Bunso, Jr., Chief Hospital Corpsman, testi-
fied he has been with the Shelby County Jail since Sep-
tember 16, 1969. He has had extensive training as a
corpsman and Emergency Medica: Technician. He has
served in various U. S. Navy hospitals and medical facili-
ties. He said his duties in the jail relate to anything that
has to do with medical treatment. He said the Shelby
County Jail has an infirmary and a hospital area in the
rear of the infirmary. He said the hospital area for mone-
tary reasons has never been used. He said the cell pod
Leach was in is different from other cells. It is designed
especially for paraplegics. It has two bunks about fifteen
inches from the floor, commode with bars, an emergency
bell within arms reach and the tub is equipped with bars.
He said there were no pillows in the jail, but when and
where pillows were needed, blankets were substituted.

He said he first saw Leach on August 1, 1983, when
Leach was seen by Dr. Albert M. Jones. He said Leach
was taken to baths in the hospital isolation area. He said
he was bathed at least twice in his first ten days in jail.
He was also taken to that area for enemas. He said Leach
received a hospital mattress within his first three or four
days in jail after he complained about his mattress. He
said Leach’s wheelchair came to the top of his, Bunso’s
knee cap — about twenty-two to twenty-four inches.

He said Leach always had access to his external
catheters and rubber gloves. His father did bring items to
the jail for Leach’s use. He said Leach used eighty-seven
catheters in forty-tour days. He was given four blankets
to use as pillows. He had a linen drawer which had
twelve sheets, six towels and four or five sets of clothing
He said Leach was in the infirmary August 1, twice

26A

August 3, August 4, August 5, August 8, August 10,
August 18, 1983. He saw him in the infirmary every time
he was there. He was there almost daily to use the tele-
phone. Leach was provided refreshments and allowed to
use the phone as long as he desired. His clothing was in
fair shape a majority of the time. It is possible he was wet
at times with urine. It happens to everyone who wears a
bag. He said Leach needed close attention w hen he enter-
ed the jail as he appeared depressed. After seven or eight
days, he assigned inmate trusty Howard McClatcher to
help him. Before this medical staff assisted Leach.

Mr. Bunso said he could not recall if Leach asked for
a transfer board but stated he did not need it anyway
Bunso stated sixty to eighty paraplegics formerly housed
in the jail never needed a transfer board Thus, he ques-
tioned, why should one be needed by Leach

Mr. Bunso said Leach hardly ever complained. The
only complaints came from his parents which was just
about every day. They thought he should be ina hospital
Leach was thankful for the treatment he received. It
Leach needed to go to the hospital, he would have been
sent. He did not need hospital care. He had no tempera-
ture, drowsiness or headaches. There was always some-
one assigned to L Pod with Leach

On cross examination, it was established that the
tracking system does not show Leach was 1n the infirm-
ary on the days Bunso claims.

Mr. Bunso admits he became agitated by Mr. Leach’s
father calling him and complaining he (Bunso) was not
doing his job.

A
A v
\
aw s
4+ bat
Cu >
|
SS
, j
> ‘
t
° r
\
‘
. 2 QO
» ~,\yT a
ral
‘ ra tne 6 ‘
i I
-
fae
’
toad } ‘
. a iil
\ 1s
Aigt » *
a la

si A .s
~
**
~
A 4
‘ .
( .
\ 4
~
~ \ 4
eZ s ( . ~
r4 \4 ; - /
if ~
rr r
4 -

2B

eighth amendment rights through their deliberate indif-
ference to his serious medical needs while he was incar-
cerated in the Shelby County Jail.

i.

In 1982, Leach, shot by his victim while committing a
rape, was paralyzed from his chest down. He was treated
in various local hospitals for several months afterward,
his treatment including surgical repair of a sacro-
decubitus ulcer in May of 1983. On July 30, 1983, Leach
was found guilty of aggravated rape and kidnapping. He
was immediately incarcerated at the Shelby County Jail to
await sentencing. His treatment while at the Shelby
County Jail is the subject matter of this litigation.

Before entering the Shelby County Jail, Leach had
received rehabilitative care and training. Although able to
perform his own catheterization and bowel training with
some assistance, he was unable to touch his feet, change
his socks or move his lower extremities. To avoid recur-
rence of the ulcer, he required a firm mattress of sufficient
width to permit him to turn around in bed. He also
required particular attention to his cleanliness to avoid
infection.

The evidence clearly shows that during the first ten
days of his incarceration at the Shelby County Jail,

Leach’s treatment was deplorable. He was given a steel

(Continued from previous page)
official capacity suit, the entity that is ultimately liable is the
County. Therefore the omission or addition of the Mayor in his
official capacity is inconsequential here.

3B

cot with an inadequate mattress and it was not until
several days after he had arrived at the jail that it was
) replaced with a hospital mattress. Despite his medical
need for cleanliness, he was not bathed for several days.
He was forced to remain for long periods of time in his

own urine due to inadequate catheter supplies and was
given inadequate aid for his bowel training needs despite
his repeated requests for help.

On August 9, Leach’s mother filed a complaint about
her son’s treatment with the Tennessee Department of
Human services. William Sellari, an employee of the De-
partment, contacted Sheriff Barksdale about the com-
plaint. He was referred to the Chief Jailer and then to
Corpsman Bunso who had personal contact with Leach
Sellari visited Leach on August 11 and concluded that he
and other inmates had been recently bathed, were not in
their own urine or feces and that there did not appeal to
be any abuse. It was not until after the Sheriff was noti-
fied of this complaint, however, that Leach’s treatment
changed and he began to receive humane treatment.

There is evidence that when Leach entered the Shelby
County Jail, his skin was in good condition and he had no
sores on his body. Upon leaving, he had sores on his
ankles and buttocks. He claimed that his treatment at the
jail caused him great distress, that he developed a burn-
ing sensation on the lower part of his back, and that he
was plagued with frequent headaches

Following a bench trial, the district court found that

Leach’s injuries were the result of deliberate indifference

a

4B

to Leach’s medical needs by the jail personnel, in viola-
tion of the eighth amendment. The court further deter-
mined that there was evidence that other paraplegic or
physically infirm inmates at the Shelby County Jail had
been similarly mistreated and that, at least in this in-
stance, the Sheriff took no action to correct the situation
or to discipline the employees. The court held that the
Sheriff in his official capacity knew, or should have
known, of the inferior and substandard treatment of
paraplegics and that such treatment would deprive an
individual of a constitutional right. Brandon v. Allen, 516
F. Supp. 1355, 1361 (W.D. Tenn. 1981), aff'd in part and
rev'd in part, 719 F.2d 151 (6th Cir. 1983), rev'd on other
v. Holt, 469 U.S. 464 (1985)

Accordingly, the court awarded Leach the sum of $10,000

42 U.S.C. § 1983 states

Every person who, under color of any statute
Ordinance, regulation, custom, or usage of any
State subjects, or causes to be subjected, any
citizen of the United States to the deprivation of
any rights, privileges, Or immunities secured by the
Constitution and laws shall be liable to the party

injured in an action at law, suit in equity, or other
proper proceeding for redress

6B

The Supreme Court has held that deliberate indif-
ference to a prisoner’s serious medical needs by a prison
doctor or a prison guard is prohibited by the eighth
amendment. Estelle v. Gamble, 429 U.S. at 104-05. The
district court’s findings of fact show that during the first
ten days of his incarceration, Leach’s serious medical
needs arising from his paraplegic condition were deliber-
ately ignored by the Shelby County Jail personnel. These
findings are supported by the evidence and are not clear-
ly erroneous. Thus, Leach has satisfied the first require-
ment of section 1983, that he was deprived of a right
guaranteed by the Constitution

Next, Leach must show that a person acting under
color of state law committed the deprivation of his rights
Although the jail personnel were directly involved,* they
are not named as defendants herein. Rather, Leach sued
the Mayor and the Sheriff in their official capacities. The
question before this court then is whether the Mayor and
Sheriff may be held liable in their official capacities under
section 1983 for Leach’s damages and what that means in
terms of actual responsibility to pay the determined dam-
ages.

In 1978, the Supreme Court overruled Monroe v. Pape
365 U.S. 167 (1961), insofar as Monroe had held that local
governments were not “persons” within the meaning of
section 1983 and thus were wholly immune from suit
under the statute. Monell, 436 U.S. at 690. In Monell, the

> Leach’s claim is therefore unlike the case of Parrish
Johnson, 800 F.2d 600 (6th Cir. 1986), where the jail personne!
themselves were sued tor their mistreatment of paraplegic
inmates

7B

Court determined that a municipality is a “person” with-
in the meaning of section 1983 who can be sued directly if
it causes a constitutional tort through “a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Jd. The Court re-
jected the doctrine of respondeat superior as an infallible
bellwether to establish municipal liability. Instead, it de-
termined that “municipalities could be held liable only
when an injury was inflicted by a government's ‘lawmak-
ers or by those whose edicts or acts may fairly be said to
represent official policy.’ ” City of St. Louis v. Praprotnik,
108 S. Ct. 915, 923 (1988) (quoting Monell, 436 U.S. at 694).
Depending upon the relief sought, a suit under section
1983 normally should be brought against either or both of
two defendants: the local public official in his individual
capacity and the local government which employs or is
sought to be held responsible for the acts of that local
public official.4

A successful suit against an individual acting under
color of law results in personal liability of the individual
to the injured party for the amount of his injuries. In this
individual capacity, the local public official may prevail
on the affirmative defenses of absolute or qualified im-
munity if they are applicable. See Harlow v. Fitzgerald, 457
U.S. 800 (1982). This doctrine and the theories of liability
and immunity applicable thereto are not relevant to suits
directly against a governmental entity.

* The analysis which follows applies only in the context of
“local government units which are not considered part of the
State for Eleventh Amendment purposes.” Monell, 436 U.S. at
690 n.54.

8B

A suit against an individual “in his official capacity”
has been held to be essentially a suit directly against the
local government unit and can result in that unit’s lia-
bility to respond to the injured party for his injuries.

Official capacity suits, ... “generally represent
only another way of pleading an action against
an entity of which an officer is an agent.” ... As
long as the governmental entity receives notice
and an opportunity to respond, an official ca-
pacity suit is, in all respects other than name, to
be treated as a suit against the entity.

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations
omitted). In such suits, however, the governmental entity
is not entitled to assert the immunity defenses available
to individual actors sued in their individual capacities.
See Owen v. City of Independence, 445 U.S. 622 (1980).
Further, before a local government can be held liable for
injuries under section 1983, whether the suit is pleaded as
an official capacity suit or a suit against the local govern-
ment, a plaintiff must show that his injuries were the
result of some “policy or custom” attributable to the
governmental entity. Monell, 436 U.S. at 690. As the Su-
preme Court stated in Kentucky v. Graham:

On the merits, to establish personal liability
in a § 1983 action, it is enough to show that the
official, acting under color of state law, caused
the deprivation of a federal right. . . . More is
required in an official-capacity action, how ever,
for a governmental entity is liable under § 1983
only when the entity itself is a “moving force”
behind the deprivation, . . . thus, in an official-
capacity suit the entity’s “policy or custom”
must have played a part in the violation of
federal law.

473 U.S. at 166 (citations omitted).

9B

Because a suit under section 1983 against a defendant
“in his official capacity” is equivalent to a suit against the
local government entity, provided that the entity receives
notice and an opportunity to respond, the prudent course
for a plaintiff who seeks to hold a local goverment entity
liable for damages resulting from an allegedly uncon-
stitutional action under 42 U.S.C. § 1983 would be to
name in his pleadings the government entity itself. Al-
though the omission is not fatal in light of Kentucky v.
Graham, supra,> the governmental unit was not named
here. Notwithstanding the language in Kentucky v.
Graham, it is a wise course to name the unit specifically to
ensure the requisite notice and to provide an opportunity
to respond. As Chief Justice Burger noted:

It does not make a fetish out of orderly
procedure to say that if a claimant seeks dam-
ages from a municipality, this should be done by
making it a named defendant; that will assure

the municipality has notice and an opportunity
to respond.

Brandon v. Holt, 469 U.S. at 473 (Burger, C.J. concurring).

Leach’s suit against the Mayor and the Sheriff of
Shelby County in their official capacities is, therefore,
essentially and for all purposes, a suit against the County
itself. The issue, therefore, is whether there was a policy
or custom so attributable to the municipality as to render

it responsible for payment of the damages found

There is no dispute that the County, although not a
named party here, received adequate notice and an oppor-
tunity to respond.

10B

The district court made no explicit finding regarding
the existence of a policy or custom in this case. Rather the
court determined that the Sheriff was liable in his official
capacity because his failure to supervise the jail personnel
indicated his deliberate indifference to the rights of para-
plegic inmates at the Shelby County Jail. The court found
support for the conclusion of deliberate indifference be-
cause the Sheriff knew or should have known that the
maltreatment of paraplegic inmates was occurring and,
by such indifference, failed to prevent it.

1. Supervisory Responsibility

Supervisory liability under section 1983 arises from
the Supreme Court’s opinion in Rizzo v. Goode, 423 US.
362 (1976). In Rizzo, the Court found that the mayor, city
managing director, and police commissioner were not
liable for the constitutional violations by the city’s police
officers because “there was no affirmative link between
the occurrence of the various incidents of police miscon-
duct and the adoption of any plan or policy by [the
defendants] - express or otherwise - showing their au-
thorization or approval of such misconduct.” Id. at 371.
The Court rejected the idea that supervisory liability un-
der section 1983 could attach on the basis of respondeat
superior holding that the mere failure to act was not a
sufficient basis for liability. Instead, officials should be
personally liable in damages only for their own uncon-
stitutional behavior.®

© Note that Rizzo was decided before Monell! and therefore, |
the city was not a party to the lawsuit

eT |

11B

The Supreme Court left open the question of whether
a supervisor could be liable for inaction where he or she
knew or should have known of widespread violations by
subordinates. Our circuit has addressed this issue. “The
law is clear that liability of supervisory personnel must
be based on more than merely the right to control em-
ployees.” Hays v. Jefferson, 668 F.2d 869, 872 (6th Cir.), cert.
denied, 459 U.S. 833 (1982). Further, a claim of failure to
supervise or properly train under section 1983 cannot be
based on simple negligence. Id.; Daniels v. Williams, 474
U.S. 327 (1986).

[A] failure of a supervisory official to supervise,
control, or train the offending individual [em-
ployees] is not actionable absent a showing that
the official either encouraged or in some way
directly participated in it. At a minimum a
plaintiff must show that the official at least im-
plicitly authorized, approved or knowingly ac-
quiesced in the unconstitutional conduct of the
offending [employees].

Hays, 668 F.2d at 874. There is no claim in this case that
the Sheriff directly participated in or encouraged the
alleged deprivations of Leach. There is, however, at least
some evidence that the Sheriff “implicitly authorized,
approved, or knowingly acquiesced” in the action of the
responsible jail personnel as shown by the fact that it was
not isolated or confined to plaintiff Leach and that he
failed subsequently to punish the responsible individuals
Court are not required to ignore the fact of life that
policies can be and often are subtly but effectively pro-
mulgated by seemingly benign conduct.

Thus, we must determine whether supervisory lia-

bility, as discussed in Rizzo, is a necessary component of
\ }

12B

an official capacity suit. We find that an official capacity
suit does not require a showing of supervisory liability.
Since an official capacity suit is, for our purpose here, a
Suit against a governmental entity, the allegedly uncon-
stitutional action need only be based on a policy or
custom of that entity for liability to attach. While the
district court made no explicit finding of a policy or
custom, the court’s crediting of evidence implicitly made
such a finding. While we would not dictate any firm rules
as to when a failure to supervise rises to the level of a
policy or custom of deliberate indifference, we uphold

the finding of such a policy or custom in this case.

Policy or custom

Under the principles articulated in Monell, Leach
must demonstrate that his maltreatment was the result of
a policy or custom of the governmental entity. The policy
involved here is one of deliberate indifference to the
medical needs of paraplegic and physically incapacitated
prisoners in the Shelby County Jail. The manifestation of
this policy here has two aspects: first, the Sheriff failed to
supervise his employees adequately when he knew or
should have known of the danger that inmates such as
Leach were likely to receive inadequate care and second,
the Sheriff failed to investigate this incident and punish
those responsible, in effect ratifying their actions.

The district court determined that the Sheriff knew or
should have known of Leach’s deprivations yet failed to

correct the situation and was, therefore, deliberately in-

different to Leach’s needs. There is no evidence that the

13B

Sheriff actually knew or supported the corpsman’s ac-
tions toward Leach. Therefore, this is a situation where
the Sheriff should have known and acted. Such a require-
ment implies an affirmative duty to know and to act. The
district court found that the Sheriff was under an affirma-
tive obligation toward Leach:

In Tennessee, the Sheriff has the “custody and

charge” of the County Jail and all prisoners

committed thereto. Tenn. Code Ann.

§ 41-4-101. .. . The Sheriff had an obligation

under state law to provide [Leach] with ade-

quate care. Further, the Sheriff had a constitu-

tionally imposed duty to provide Mr. Leach with
adequate medical care.

Further, Tennessee law provides that the Sheriff has a
duty to provide adequate food and bedding, maintain
cleanliness and provide toiletries and showers. Tenn.
Code Ann. §§ 41-4-109, 41-4-111.

Not only was there a duty on the part of the Sheriff to
provide adequate care to Leach, but there had been
enough similar incidents to put the Sheriff, in his official
capacity, on notice that Leach would be subject to consti-
tutional deprivation. The district court found that:

there was evidence of numerous instances of

abuse of paraplegic or physically infirm in-
mates. Both John Johnson and Willie Matthews
were provided inadequate care and substandard
treatment. [A medical corpsman] testified that
the same type of treatment provided

[Leach] .. . was provided to at least 14 other

paraplegics since the new jail was opened.

These findings are adequately supported by the record
here and are not clearly erroneous. Based upon these

findings, we agree with the district court’s conclusion

a

14B

that the Sheriff was deliberately indifferent to Leach’s

needs while he was incarcerated in the Shelby County
Jail.

The next issue, then, is whether a municipality can be
held liable for damages where the Sheriff's failure to
supervise amounts to deliberate indifference to the rights
of persons incarcerated at the jail. Guiding this deter-
mination is the Supreme Court's recent decision in City of
Canton v. Harris, 109 S. Ct. 1197 (1989). In Canton, the City
appealed a Sixth Circuit decision which held that a mu-
nicipality could be liable for failing adequately to train its
police force where the municipality recklessly, inten-
tionally, or with gross negligence failed to train its offi-
cers under circumstances in which a deprivation of
constitutional rights was substantially certain to result.
The Supreme Court determined that this standard was
too broad and instead held that:

the inadequacy of police training may Serve as
the basis for § 1983 liability only where the
failure to train amounts to deliberate indif-

ference to the rights of persons with whom the
dob: - p
police come into contact.

Id. at 1204. The Court emphasized that municipal liability
was based on the finding of a policy of the municipality
and that therefore the deliberate indifference must
amount to a policy of the municipality. Noting that it
would seem contrary to common sense that a city W ould
have a policy of inadequately training Its police force, the
Court stated:

it may happen that in light of the duties assign-
ed to specific officers or employees the need for
more or different training is so obvious, and the
inadequacy so likely to result in the violation of

15B

constitutional rights, that the policymakers of
the city can reasonably be said to have been
deliberately indifferent to the need. In that
event, the failure to provide proper training
may fairly be said to represent a policy for
which the city may be held liable if it actually
Causes injury.

Id. at 1205. Given the district court’s finding of deliberate
indifference by the Sheriff in that at least 14 other para-
plegics had received similar deplorable treatment, it is
fair to say that tne need for more adequate supervision
was so obvious and the likelihood that the inadequacy
would result in the violation of constitutional rights was
so great that the County as an entity can be held liable
here for the extent of Leach’s determined damages.

Further evidence of a policy of deliberate indif-
ference is found in the Sheriff’s failure to investigate this
incident and punish the responsible parties. It was the
same type of “ratification of the illegal acts” that the Sixth
Circuit found to be a sufficient “official policy” of the
county and sheriff in Marchese v. Lucas, 758 F.2d 181, 188
(6th Cir. 1985), cert. denied, 480 U.S. 916 (1987). In
Marchese, a prisoner who had threatened a police officer
was twice beaten while in the presence and custody of
the police. The fact of the abuse came to the trial court’s
attention and the sheriff was ordered to investigate the
incident. The sheriff failed to investigate the incident or
discipline the officers involved. In a section 1983 action
the Sixth Circuit affirmed a judgment for the prisoner
against both the sheriff in his official capacity and the
County. The court first noted that even though the sheriff

was not present during the beatings, because he was sued

16B

in his official capacity, “in that capacity, he had a duty to
both know and act.” Id.

The court concluded that the official policy of the
sheriff and the County” in that case (1) did not require
appropriate training or discipline of the police officers,
and (2) would not engender either investigation or sanc-
tlons against officers when such an assault occurred. “It is
this latter official policy which we also regard as ratifica-
tion of the illegal acts “ Id. On this basis, the court
found liability on the part of the County and the sheriff.

The similarities to this case are twofold. First, Sheriff
Barksdale is sued here in his official capacity. The district
court determined that under state law he had a duty to
supervise the medical care and treatment of the prison
inmates. Therefore in his capacity as Sheriff, he had a
duty to know and act upon this constitutional depriva-
tion. Second, the district court concluded that “[t]he re-
cord reflects that Sheriff Barksdale took no action to
correct the situation nor to discipline [the employee re-
sponsible] for the mistreatment.” Thus, like Marchese, the
Sheriff here ratified the unconstitutional acts. In March:
such ratification was deemed sufficient to attach liability
to the sheriff and the County. We find it equally sufficient

in this context

Consequently, we find that the policy or custom of
deliberate indifference to the needs of paraplegic prison

ers in the Shelby County Jail is adequately demonstrated

? Note that in Marchese the County was a named defen
dant in contrast to this case. For this reason the court in
Marchese made an explicit finding of a policy or custom

in the findings of the district court and supported by the
record before us. The Sheriff’s failure to supervise and
correct the situation in view of the numerous similar
incidents and his failure subsequently to punish the re-
sponsible individuals is more than sufficient evidence of
a policy or custom to render the County liable for Leach’s

damages in this official Capacity suit.

B. Contracting Out Medical Responsibility

The Sheriff and Mayor contend that they are not
liable for Leach’s injuries because, under Tennessee law,
the medical care of prisoners at the Shelby County Jail is
by contract performed by an outside health care provider
[hev argue that the facts show that only the medical
personnel involved with caring for Leach caused his inju-
ries through deliberate indifference to his needs and be-
cause these personnel were employed by a separate entity
and not the Sheriff, the Sheriff cannot be liable for their

actions.

Che Sheriff relies on Willis v. Barksdale, 625 F Supp
411 (W.D. Tenn. 1985), to assert that Tennessee law does
vot require the Sheriff to address the unique medical
needs of each prisoner but rather is permitted to rely on
the county’s medical personnel in this area. In Willis, the
same district court questioned the sheriff's obligation to

know and act in a section 1983 action involving the same

Sheriff, the same jail, the jail administrator and the Coun-
ty.

18B

In Willis, the court recognized that:

The sheriff is an official popularly elected by
county residents who has the statutory respon-
sibility for safekeeping all prisoners within the
jail. T.C.A. Sections 8-8-201 and 41-4-101.

Id. at 414. The case was brought on behalf of a prisoner
who died of heat stroke during a heat wave. He had been
on medication which made him particularly susceptible
to the heat. The defendants were charged with deliberate
indifference arising from their failure to know of the
deceased's special needs and act upon them. In denying
relief against the chief jailer the court explained that:

Here, defendant Coop, as chief jailer, had a duty
derived from the constitution, from Tennessee
statutory law, and from Tennessee common law,
to maintain reasonably safe conditions. Implicit
in that duty is some responsibility to confront
prisoners’ basic medical needs. Towards that
end, defendant Coop ordered certain measures
to minimize the heat wave’s impact on the pris-
oners’ health. Yet Coop’s duty did not extend to
developing procedures to discover the special
medical needs of individual inmates. Tennessee
by statute specifically delegates to others the
duty to address inmates’ specific medical prob-
lems. Further, health department employees, not
Coop, had direct responsibility for providing
medical care, including administering medica-
tions, to particular inmates. It was their duty to
discover the medical needs of particular inmates
and to advise jail administrators of those needs
Absent evidence to the contrary, defendant
Coop constitutionally could operate on the as-
sumption that those responsible for providing
medical care to particular inmates were dis-
charging that duty properly and that they
would communicate to him their professional

19B

judgment about medical needs of prisoners re-
quiring his action

Id. at 417 (footnotes omitted). Later, in addressing a pen-
dent state claim the court elaborated:

Tennessee common law imposes upon the
sheriff and his chief jailer a duty to treat prison-
ers “kindly and humanely.” Hale v. Johnston, 140
Tenn. 182, 203 S.W. 949 (Tenn. 1918); State ex rel.
Morris v. National Surety Co., 162 Tenn. 547, 39
S.W.2d 581 (1931). Tennessee statutory law im-
poses upon them, in impressive breadth and
detail, a multitude of mandatory duties de-
signed to promote the inmate’s welfare. By con-
trast, Tennessee does not impose upon the
sheriff or his jailer any statutory duties directly
and immediately related to the medical ca.e of
inmates. In fact, Tennessee expressly assigns
those duties to others. For example, T.C.A. Sec-
tion 41-4-115(a) states that “[t]he county legisla-
tive bodies shall alone have the power, and it
shall be their duty, to provide medical atten-
dance upon all prisoners " Furthermore,
T.C.A. Section 41-4-116(c)(2) permits the county
legislative body to appoint jail inspectors whose
“duties” include the making of “rules and regu
lations for the preservation of the health and
decorum of the prisoners “ Finally, T.C.A
Section 41-4-140(a)(1) directs the Tennessee Cor
rections Institute to “establish minimum stan-
dards . for the safekeeping, health and
welfare of inmates

fennessee law, therefore, did not require de
fendants to ferret out and address the unique
medical needs of each individual prisoner. Ten-
1essee law permitted them to rely upon the
county’s medical personnel to treat prisoners
medical problems properly. True, it might have
been wise for the sheriff or his jailer, consistent
with their general common law duty to provide

20B

a relatively safe environment, to establish stan-
dard mechanisms by which the medical person-
nel would communicate effectively with the
regular jail staff. However, it was well within
their discretion how best to accomplish the task
of promoting communication between the jail’s
medical and regular staffs so as to ensure the
physical well-being of inmates with special
medical needs.

Id. at 421 (footnotes omitted). The Sheriff contends that
this excuses him from liability in his official capacity for
his deliberate indifference to Leach’s needs while he was
incarcerated in the Shelby County Jail.

The recent case of West v. Atkins, 108 S. Ct. 2250
(1988), sheds some light on this issue. In West, a doctor
under contract to provide medical services for prison
inmates was charged with a violation of section 1983 for
deliberate indifference to a prisoner’s medical needs in
violation of the eighth amendment. The issue in West was
whether a physician under contract with the State to
provide medical services to prison inmates acts “under
color of state law” within the meaning of section 1983. Id
at 2252. The Court found in the affirmative and also
observed that a contrary decision would diminish a pris-
oner’s eighth amendment right “since few of those with
supervisory and custodial functions are likely to be in
volved directly in patient care.” Id. at 2258 n.12. The
Sheriff here claims that this indicates that he should not
be held liable in this case as a supervisory employee
because the medical care of inmates is the responsibility
of the medical personnel and that only they should bs

liable for the injuries that they cause. Although West may

support an argument that he is not personally liable as a

21B

supervisor, it does not support any argument that the
County should not be liable here. As the court 1 ted in
West:

Contracting out prison medical care does
relieve the State of its co nstitutional duty ¢
provide adequate medical treatment to those

its custody, and it does not deprive the State 5
prisoners of the means to vindicate their F
Amendment rights. The State bore an affirma

g

tive obligation to provide medical ire t
West

oye
“
—
-
-_

Id. at 2259 (footnote omitted i nis
to the Sheriff’s contentions. the St
ty) retains responsibility de SI

the medical care of its pris
Sheriff is here in his official] iT
the County involved here), the She:

liability due to having contracted

Finally, the Sheriff's argume
pletely ignores the fa
ever may |
personnel under Will:
Sibility of conforming |
standards in providing and
ding, toiletries and cleanling
tary conditions and bedding were d
medical care was deplorably defi
cy of deliberate indifference |

Leach IS not CXCUSeCOd

ittendant medical staff

22B

policy or custom of deliberate indifference sufficient to
establish the liability of the County.

Ill.

Accordingly, for the reasons stated above, the deci-
sion of the district court awarding plaintiff Leach $10,000
against the Sheriff in his official capacity is AFFIRMED.

arene ————

1C

APPENDIX C
No. 87-6141

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LARRY M. LEACH, )
MD )
Plaintiff-Appellee, ) ORDER
V. ) (Filed
EUGENE BARKSDALE, ETC., ) Feb. 8 1990)
ET AL., )
Defendants-Appellants )

BEFORE: BOGGS, Circuit Judge; ENGEL, Senior Circuit
Judge; and McQUADE”*, U.S. District Judge

The Court having received a petition for rehearing en
banc, and the petition having been circulated not only to
the original panel members but also to all other active
judges of this Court, and no judge of this Court having
requested a vote on the suggestion for rehearing en banc,
the petition for rehearing has been referred to the original
hearing panel.

The panel has further reviewed the petition for re-
hearing and concludes that the issues raised in the peti-
tion were fully considered upon the original submission
and decision of the case. Accordingly, the petition is
denied. |

* Hon. Richard B. McQuade, Jr., sitting by designation
from the Northern District of Ohio, resigned effective October
1, 1989.

2C

ENTERED BY ORDER OF THE
COURT

/s/ Leonard Green
Leonard Green, Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1278%3A1. Public record. Not legal advice.