Petition for Writ of Certiorari — Bailey v. Clay County

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\A 041688 JUN 1 4 2005

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IN THE

Supreme Court of the Anited States

BILLIE RENEE BAILEY,

Petitioner,

We

CLAY COUNTY, ALABAMA, SHERIFF RALPH TOLAND,

individually, and FRANK THREATS,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ALVIN T. PRESTWOOD *

PRESTWOOD & ASSOCIATES, P.C.

300 South Hull Street

Post Office Box 1910

Montgomery, Alabama 36102-1910

(334) 264-6401

* Counsel of Record Attorney for the Petitioner

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

Whether the Eleventh Circuit has so far departed from the

usual course of judicial proceedings as to call for the

exercise of this Court’s supervisory powers, when said

intermediate court has held that the constitutional rights of

an inmate are not violated by a jailer who misused his

position by having sex with a female inmate who was

incarcerated and under the jailer’s control.

Whether the Eleventh Circuit has so far departed from the

usual course of judicial proceedings as to call for the

exercise of this Court’s supervisory powers, when it

continues a practice of issuing non-published opinions

regarding the precedent necessary to warn an official and

others as to when and under what condition the official

may or may not be protected by the defense of qualified

immunity.

Whether the Eleventh Circuit has so far departed from the

usual course of judicial proceedings as to call for the

exercise of this Court’s supervisory powers, when it

sanctions the granting of summary judgment in favor of

an agency of local government and a county sheriff, when

they fail to provide the necessary funds, personnel, and

practices to protect a pretrial detainee inmate with the

minimum civilized measures of life’s necessities and

protection.

(i)

PARTIES, PARENT COMPANIES, AND

SUBSIDIARIES

In compliance with the provisions of Rule 14.1(b), the

Petitioner represents to the Court that Rule 29.6 is not

applicable to this proceeding. Also, ail of the parties to the

proceeding are named in the caption of the case.”

* The name of one Defendant, Frank Threats, sometimes appears as

“Frank Threat” in the documents. His actual name is Frank Threats, with

the “s” appropriately at the end of his surname. (R1-134-31).

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.................

PARTIES, PARENT COMPANIES, AND

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CITATIONS OF OPINIONS AND ORDER.G..............

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CONSTITUTIONAL PROVISIONS AND

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(i) Course of Proceedings and Disposition in the

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(iii) Facts not included in the District Court's

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1. -A jailer should be liable for having sexual

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TABLE OF CITED AUTHORITIES

CASES:

Adair v. Department of Community Affairs, 02-

1575011 (August 14, 2003) ..........sccssceeereeereees

Anderson vy. Creighton, 483 U.S. 635, 640............

CRIIET Biccsncssarcshnetsinitceitccnntdaanetanneacnipinenbiontantaveshnent

Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir.

Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th

Ce, SP inciatacntnecssnnsetenincanianiniuiiitnimnianniinanensainas

Boddie v. Schnieder, 105 F.3d 857, 861 (2nd Cir.

Celotex Corporation vy. Catrett, 477 U.S. 317

(RES ee rey ea Riel Reem neh epee

Estelle v. Gamble, 429 U.S. 97 (1976) ...........000000

Hamm v. DeKalb County, 774 F. 2d 1567, 1573

CER Ca: FI edict ieceiencabetcscditesiecheniesadictnense

Hope v. Pelzer, 536 U.S. 730, 739 (2002).........0++.

Hovater v. Robinson, | F.3d 1063, 1068 (10th

Ingraham vy. Wright, 430 U.S. 651, 670 (1977).....

Jackson v. Byrne, 738 F.2d 1443, 1446-1447 (7th

Ce: PN cise nctnsnsisiinsiiiiuaiattilliniiiteecieniniipaiadiipiiianiitaghiin

Johnson v. Breeden, 280 F. 3d 1308, 1320 (11th

Kitzman-Kelley v. Warner, 205 F.3d 454, 459

ES Ae RRR PN Rie ot EERO NWP

Lancaster v. Monroe County, Alabama, 116 F.

3d 1419, 1425 n. 6 (11th Cir. 1997)...

Lee v. Ferraro, 284 F. 3d 1188, 1193-94 (11th

Ce, Sine op vcepsnerinieisitieniindianiaabiiiaiintannies

V

TABLE OF CITED AUTHORITIES—Continued

‘ Page

Marsh v. Butler County, Alabama, 268 F. 2d

Pe CE PE Ce, BOD iitaaiictnisiasinteteoinnee 23

Mitchell v. Forsyth, 472 U.S. 511, 535, n. 12

UII Pista icisnnnistschcilsais idalsihisihiiaiuaciadia aoa 23

Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir.

SPIED ssnssinsnenhensidaiichsniteailichiikatnnisisesiiitcesbiliaiasisde’ 18

Newman v. State of Alabama, 503 F. 2d 1320,

RBS COUN COND ies shisatinsnndbintindisbacsaicash 16

Parham v. J.R., 442 U.S. 584, 619 (1979)... 18

Smith v. Cochran, 339 F.3d 1205, 1212 (10th

Ces Pe Peniieicinlonisaguamadiuansaatamncmitanbelhic ts 18

Spicer v. Williamson, 191 N.C. 487, 490 (1926)... 23

Stark v. Madison County, 678 So. 2d 787 (Ala.

COV, Ps BIN sihiininntisestaticieibbetabiaaiintaecaias 23

Stockman v. Lowndes County, Mississippi, 2000

WL 33907696 (N.D. Miss. 2000)..........:cccec0. 17

Turquitt v. Jefferson County, Alabama, 137 F. 3d

EZR, TAP C8 RG CAE, WED cnicccsasiccasacensonirdaniion 23

Whitley v. Albers, 475 U.S. 312, 319 (1986)......... 18

Youngberg v. Romeo, 457 U.S. 307, 315 (1982)... 18

OTHER AUTHORITIES:

Pee es OF RO Rect daaherckdicrsstategusiccitasigeceins 3

Se lattes UIE seinicchiosicaticssciaka Ucedilbigidings pede eat 4

Te Shao is SEO siesbiccisenttndicsinsbshnatntcnabinasectititattias 2,4,5

FAR, CR TO Fea s BPN cevsiciiniticcecrnntiakidaniasicn Tap 3

FOR: CRD FETs UE iissacicscecebedtccsndsincniecniccns y Rie ip x

Ala. Code 1975, §14-6-41(b).......cccsccsccsscsscsssssceees 2,3

PA COE FITS, BEG-GGD vivscisinicnisscnisiipmissiiabedianaios me

Alle. Cotle 1975, §146-G-97 ccccccsccsccsscaseiecosscssnennssnaan py Oy x

PRR VOTS, BEEP sctcniictiinsissssaninrencsnsatiing 3

PAR: COG ISIS, FE EP GS acsceiisnntosstndasonsncansias ds Se eo

Ala. Code 1975, §11-12-15(a)(1) vce cessceseeeee fs 3

vi

TABLE OF CITED AUTHORITIES—Continued

Page

Eleventh Circuit Local Rule 36.3 ..............cccceeeee 20

Fe eee ee eT ae Nee 4

COUP AD cikeccsinenctuiniinsttinniitiisieaiiliaintinigitapasbingibiilicaisieeats 20

PRUE TED cencstcsvinicenhetiniesinisiiastatialasasniiduiidinssieiniaeasiiuiibiaiiaie 3

Bee 646, HERD ceccecccecctiivecinteicncslitabansninisttcienncetiajaiisinn il

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United States Constitution, Eighth Amendment. 3, 17, 18, 19

United States Constitution, Fourteenth Amend-

SURDUIT cccccassstiannsuistichenaiebiameibidiadeioaie Se eT 3,4, 19

IN THE

Supreme Court of the United States

No.

BILLIE RENEE BAILEY.

Petitioner,

Vv,

CLAY COUNTY, ALABAMA, SHERIFF RALPH TOLAND,

individually, and FRANK THREATS,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

CITATIONS OF OPINIONS AND ORDERS

The opinions of the United States District Court for the

Northern District of Alabama are not reported, and are set out

at Appendix B (App. 4a), Appendix C (App. 5a-32a), and

Appendix E (App. 34a). The orders of that court denying

rehearing are not reported, but are set out at Appendix D

(App. 33a) and Appendix F (App. 35a-36a).

The opinion of the Eleventh Circuit Court of Appeals is not

reported, and is set out at Appendix A (App. la-3a), and the

decision of that court on rehearing is set out at Appendix G

(App. 37a).

2

The Appendix thus includes the following:

A. Decision of the Eleventh Circuit to be reviewed

(App. | -3a).

B. District Court judgment of September 16, 2003

(App. 4a).

C. District Court Memorandum Opinion of September

16, 2003 (App.Sa-32a).

D. District Court order of- October 30, 2003 (App.

33a).

E. District Court judgment of December 9, 2003 (App.

34a).

F. District Court order of January 8, 2004 (App. 35a-

36a). }

G. Decision of the Eleventh Circuit denying

application for rehearing or rehearing en banc

entered on March 16, 2005 (App. 37a).

H. Copies of Amendment VIII and XIV, Section |,

U.S. Constitution (App. 38a).

I. Copies of Ala. Code 1975 §11-12-15(a)(1); Copy of

Ala. Code 1975 §11-14-13; Copy of Ala. Code

1975 §14-6-1; Copy of Ala. Code 1975 §14-6-7;

Copy of Ala. Code 1975 §14-6-41(b); Copy of Ala.

Code 1975 §14-6-95; Copy of Ala. Code 1975 §14-

6-97; Copy of Ala. Code 1975 §22-3-5(3); (App.

39a-4 1a).

J. Copy of 42 U.S.C. §1983 (App. 42a).

CONCISE STATEMENT OF GROUNDS

FOR JURISDICTION

The judgment or order of the United States Court of

Appeals for the Eleventh Circuit being reviewed is dated on

August 9, 2004 (App. la-3a), and the decision denying the

Petition for Rehearing or Rehearing En Banc is dated on

March 16, 2005 (App. 37a).

3

The statutory provision conferring jurisdiction upon this

Court to review the judgment or decree in question by Writ of

Certiorari is 28 U.S.C. §1254(1). Rule 10(a) of the Rules of

this Court provides for review of a United States Court of

Appeals’ decision that has so far departed from the acceptable

and usual course of judicial proceedings, or sanctions such a

departure by a lower court, as to call for the exercise of this

Court’s supervisory powers.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

42 U.S.C. §1983 (App. 42a)

United States Constitution, FOURTEENTH AMEND-

MENT, Section | (App. 38a).

United States Constitution, EIGHTH AMENDMENT

(App. 38a).

Ala. Code 1975 §11-12-15(a)(1) (App. 39a).

Ala. Code 1975 §11-14-13 (App. 39a).

Ala. Code 1975 §14-6-1 (App. 39a).

Ala. Code 1975 §14-6-7 (App. 39a-40a)

Ala. Code 1975 §14-6-41(b) (App. 40a)

Ala. Code 1975 §14-6-95 (App. 40a)

Ala. Code 1975 §14-6-97 (App. 40a)

Ala. Code 1975 §22-3-5(3) (App. 40a-41a)

STATEMENT OF THE CASE

(i) Course of Proceedings and Disposition in the

Court Below |

This case is brought by the Plaintiff, Billie Renee Bailey

(hereinafter known as “Plaintiff” or “Bailey”), a former de-

tainee in the Clay County Jail, against Clay County, Alabama,

Sheriff Ralph Toland, and Jailer Frank Threats to seek relief

~

4

under the Fourteenth Amendment of the United States Consti-

tution and under 28 U.S.C. §1343, and 42 U.S.C. §1983 since

the Defendants acted under the color of state law. (R1-1).

The Defendants Toland and Clay County filed Motions to

Dismiss. (R!- 6,7). The Plaintiff filed an Amended Complaint

(R1-27), with the Defendants filing Amended Answers. (R1-

46,47,48). |

The trial court bifurcated this case, so that Defendants Clay

County and Toland and the claims of jail conditions and

medical care would be heard separately from Defendant

Threats and the alleged sexual contact between him and the

Plaintiff.

Defendants Clay County and Toland filed a Motion for

Summary Judgment. (R1-85). The Plaintiff responded to that

motion (R1-97), and the trial court entered summary judg-

ment for those Defendants on September 16, 2003. (R1-115).

A timely post-trial motion under Fed. R. Civ. P. 59 was filed

on September 30, 2003 (RI-116), which was denied on

October 30, 2003. (R1-122). The Plaintiff filed her notice of

appeal on or about November 28, 2003. (R1-124).

A trial! was held on December 8 and 9, 2003 concerning the

alleged sexual contact between the Plaintiff and Defendant

Threats. A verdict was rendered in favor of the Defendant on

December 9, 2003. (R1-129). A timely post-trial motion

under Fed. R. Civ. P. 59 was filed on or about December 27,

2003. (R1-130). The Plaintiff filed her notice of appeal on

January 14, 2004. (R1-132).

A Motion to Consolidate these two appeals was filed on or

about January 20, 2004, and the court granted the motion on

February 20, 2004. The Eleventh Circuit affirmed the lower

court’s decision on August 9, 2004 (App. la-3a), and a

Petition for rehearing or Rehearing en banc was denied on

March 16, 2004. (App. 37a).

5

(ii) Statement of Facts *(noted by the district court)!

The Defendant Toland was at all relevant times the Sheriff

of Clay County, Alabama. Plaintiff Billy Renee Bailey

(“Bailey”) was incarcerated at the Clay County Jail (“the

Jail”) beginning on November 30, 1999, and she was released

on January 18, 2000. Bailey alleged violations of 42 U.S.C.

§1983 as a result of a sexual assault and unconstitutional

conditions at the Jail and denial of medical care while

incarcerated. ;

Bailey asserted that although the Jail was built to house 24

inmates, at the time of her incarceration the inmate population

was averaging about 61 inmates per day. Bailey was given a

mattress and sheets for her bed. She also contended that the

overcrowding problem was reported by local news sources.

Defendants contended that Bailey herself admitted that often

she only had one cellmate, and at times she had the entire cell

to herself. At one point Bailey did have a cellmate that was

present only on weekends. At another point Bailey did

mention sharing her cell with four or five other inmates, but

that was apparently for one weekend only. With the exception

of one evening in which Bailey was in a cell that had no

bunk, she slept in her own bunk every night.

In her supplemental brief, Bailey alleged that Toland knew

of the overcrowding of the jail facility based on an August

1999 grand jury inspection in which Toland assisted. Also,

Toland admitted to discussing the overcrowding problems

with the County Commission but did not put anything in

writing because he wanted to work with the Commission ona

“personal level.” Toland apparently never applied to a judge

' With only minor variations or editing, the first portion of this State-

ment of the Facts is taken from the trial court's recitation of the facts

found in its Memorandum Opinion and Order therein supporting its entry

of summary judgment. See R-114-1 through 11. Also, references to

Exhibits have been omitted.

6

to rectify the crowding problems. As to Clay County, Bailey

argued that County Commissioner John Wheeles testified

as to awareness of the “crowded” condition of the Jail in

June 1999. According to Bailey, the County Commission

also knew of the overcrowding problem from a grand jury

inspection that informed the County that the problem should

be eliminated.

-Significantly, Toland contended that the evidence demon-

strates that there never were significant or sustained

overcrowding problems in the female cells. Toland testified

that from 1998 to 1999 the female inmate population declined

over fifty-percent” but the male inmate population in the male

cells increased, particularly in the upstairs cells which housed

only male inmates. Toland further testified that this increase

could largely-be explained by the presence of state prisoners

which the Department of Corrections refused to accept.’

Furthermore, Toland argues, he was doing all he could

to encourage the Department of Corrections to take these

excess inmates.

Similarly, Clay County alleges that the County Commis-

sioners like John Wheeles only knew about crowding prob-

lems in the upstairs, male-only section of the jail. According

to Clay County, in recognition of its duties to fund new jail

facilities or renovate old ones, the County sought more

funding for the jails through local acts in the state legislature.

> According to Toland, during 1998, 101 female inmates were incar-

cerated in the Clay County Jail, and during 1999 (the period of Bailey’s

incarceration), 50 female inmates were incarcerated there.

* Health Department Inspector Rusty Miller confirmed the overpopu-

lation in the upstairs portion of the jail but coulc not recall any problem

with overcrowding in the female cell area. See Ex. 5, ¥ 15.

7

Bailey described the food at the Jail as “inedible,” salty,’

often containing foreign objects such as human and cat hair

and other dried food, and lacking variety (“You were served

the same thing every day”). Bailey did not like what the Jail

was serving and quit eating at one point until a kitchen

employee began to make her grilled cheese sandwiches.

She eventually tired of that meal as well. Bailey contends

that another inmate suffered food poisoning, but apparently

neither Toland nor Jail Administrator Studdard were ever

aware of food contamination incidents. Health Inspector

Rusty Miller also stated that he had not been made aware of

complaints of contaminated food being served or of food

poisoning. '

The Jail’s policy was to serve inmates three well-balanced

meals each day. The Jail Administrator placed store orders

(including orders for bread, meats, poultry, fish, carned/dried

items, and other general food/supplies) based upon detailed

lists and accounting of the needed items and number of those

items remaining in storage. Kitchen trusties prepared the food

and were required to wear hairnets and gloves. Trays and

utensils were gathered after each meal, when trays were

cleaned and rinsed before being placed in a high-steam

sanitizer. Cups issued to inmates upon their incarceration

could be kept by inmates for use throughout the day.” The Jail

gave inmates soap and detergents to keep their cups clean. All

meal-time drinks were poured from a common tea or water

pitcher into each inmate’s cup.

When Mr. Miller inspected the kitchen in December 1999,

it received a rating of 89, which Defendants asserted is

acceptable. According to Defendants, the few deductions that

were taken had nothing to do with the Jail’s food protection

7 Bailey stated that the saltiness of the food was health risk since she

had been prescribed a low-sodium diet by a physician.

* Inmates could keep cups from home if they wished.

8

measures. The Defendants also note that the score of 89

showed improvement from the two previous inspections,

where the kitchen received scores of 87 and 88 on June 2,

1999 and September 29, 1999, respectively.

During his December 1999 inspection, Miller noted no

deficiencies in the following areas: food, food protection,

personnel (hygiene), water, sewage, garbage/refuse disposal,

pest control, kitchen ventilation, dressing rooms, and

miscellaneous areas. Miller found that all food protection

measures such as temperature control, thawing, and storage

met the requisite standards. Further, the hygiene of the food

handlers and preparers, food disposal, and water sources met

the requisite standards. The deficiencies noted in Miller’s

December 1999 inspection involved the tabletop surface upon

which foods were prepared, some plumbing maintenance,

broken areas of the floor and wall, and the shielding of light

fixtures.° The largest number of points deleted (4) was based

on having no separate locked bathroom facility for each

trusty cell.’

The Jail’s policy was to provide medical attention upon

any inmate’s written or oral request. In an emergency

situation, the inmate was to be transported to the emergency

° Consistent with Bailey’s allegations, Clay County health reports men-

tioned roaches and the refrigerator temperature in the Jail. The June,

September, and December 1999 health reports all mention eliminating

roaches. Although the June 1999 health report noted the need to repair or

replace the refrigerator since it did not operate at the proper temperature,

both the September and December 1999 health reports stated: “two re-

frigerator/freezers have been replaced.” See Def. Ex. 12-14.

” Health Inspector Miller testified that the bathroom facility is located a

few feet down the hallway from the trusty dorm and within ten yards of

the kitchen. According to Miller, the inspection report noted this

deficiency because the bathroom facility is not more conveniently

accessible within the trusty dorm area itself, and the deduction was made

because trusties work in the kitchen. See Ex. 5, § 12.

9

room or the Clay County rescue squad would be called. For

non-emergency situation, the inmates are generally scheduled

for the first available appointment at the Clay County

Medical Clinic. It was also the policy of the Jail to provide

inmates with any and all medications brought with them to

the Jail or prescribed to them during their incarceration. The

Defendants contended ihat Bailey was familiar with the

procedures, as she filled out a medical request form for her

cellmate, Kerrie Baker. Both Toland and Studdard Stated that,

to the best of their knowledge, Bailey received care and /or

medication every time that she requested it.

Bailey was booked into the Jail on November 30, 1999 at

8:30 p.m. by Jailer Joshua Gregg (“Gregg”). Bailey signed

the booking sheet® which indicated that she had given all

information “concerning [her] health during this medical

screening.” Bailey indicated that she suffered from (1)

mental illness, for which she took Xanax and Paxil, (2)

hypertension, (3) back trouble, and (4) a venereal disease

(genital herpes). On December 1, 1999, Jail staff contacted

Bailey’s treating physician upon her claim that she was

suffering a panic attack. The medical records reflect that an

“okay [was] given to Clay County jailer for pt [patient] to

have additional 1 mg Xanax in event of panic attack per Dr.

Chafe.” ” Bailey asserts that she suffered her first panic attack

at the jail; however, the Defendants contend that Bailey had a

past medical history of panic attacks.

st twenty-five question checklist concerning various health issues

accompanied this medical statement. A “yes” was marked for history

of suicidal tendencies and Strange behavior at the time of incarceration.

Def. Ex. 17.

” In her supplemental brief in the trial court Bailey noted that on vari-

Ous occasions her requests for medication were denied. On one particular

occasion, Bailey aileges, she asked her jailer, Defendant Frank Threats, to

bring her Aleve for fever, but he raged and reached for his mace. There

was no evidence that Toland was aware of that incident.

10

Five days later on December 6, 1999, Bailey asked Gregg

to arrange for her to see Investigator Jean Dot Alexander

because she said she could “smell . . . semen” when she

urinated. Investigator Alexander came to the Jail to meet with

Bailey, who stated that someone had sex with her. Alexander

began an investigation into the complaint and transported

Bailey to the Clay County Hospital. The doctors detected

semen, bruising on Bailey’s shoulder, thigh, and breasts, and

teeth marks on her breasts.

Bailey contends that she could not remember anything

about the incident until the next day, and she believes that she

was drugged because she had no memory and slurred speech.

However, the doctor’s notes from Bailey’s trip to the

emergency room state: “NAD [no apparent distress], alert,

speech is clear.” According to Toland, all of these records are

devoid of any mention of Bailey being drugged. No drug

screening was ordered, and Bailey herself admitted that no

one has actually ever told her that she was drugged.

The Clay County Hospital performed a number of tests on

Bailey, including a urine HCG pregnancy test, which was

positive, and a rape kit. Because the urine HCG test was

positive, a serum or blood HCG test (beta HCG) was also

performed. The result of the latter test was |, and the

Defendants contend that any number less than 5 is considered

a negative test for pregnancy. As Bailey had already left the

hospital when these results came back, a nurse called the jail

and informed Jailer Leroy Brown that the test was negative,

specifics about Bailey’s medication, and that Bailey should

see her “OB doctor ASAP.”

Later that same night, at 10:15 p.m., Bailey was readmitted

to the hospital to “R/O [rule out] ectopic pregnancy.” Bailey

had an ectopic pregnancy before, prior to her tubal ligation,

and she was concerned that she may have another one

because of the alleged rape. An ultrasound was performed

which found no “evidence of intrauterine pregnancy

11

identified,” although it did not rule out such a possibility -

because it may have been too early to tell. Bailey was taken

back to the hospital on December 8 and 10 for follow-up

HCG tests, but it was determined on December 10, 1999 that

no further treatment was needed. The December 10" test

confirmed she was not pregnant. The Defendants asserted that

the evidence shows that Bailey, even if she was pregnant,

could not have become so as a result of the alleged rape.

Bailey states that she miscarried “six days” after the

alleged assault. She further alleges that Jailers Jason Gentry

and Leroy Brown refused her request to taken to the doctor

after she noticed spotting; instead, Gentry “ignored” her and

Brown “snickered at [her] when he walked past and he

wouldn't stop.” Defendants counter that Brown was not on

duty on December 11 or December 12, 1999. Defendants also

again contend that the weight of evidence Suggests that

Bailey was not ever pregnant, and thus could not have

miscarried. Furthermore, Defendants contended that Bailey

could not show that the problems she suffered after leaving

the jail are attributable to events that occurred at the jail.

Bailey also contended that she began suffering from the flu

and requested medical attention, and that it was three or four

days before someone took her to the doctor, even though she

had been asking for medical care the entire time. On

December 29, 1999, Bailey was taken to the Clay County

Medical Clinic. Bailey was prescribed cough medicine, an

antibiotic, and anti-nausea medication. According to jail logs,

Bailey took the entire course of cough and antibiotic medi-

cines but refused to take the anti-nausea medication. Accord-

ing to Toland, on December 29, 1999, Bailey complained of

flu and was examined by Dr. Hensleigh of the Clay County

Medical Clinic. No evidence indicates that Bailey complained

to Hensleigh of having flu symptoms for several days or

suspecting a miscarriage.

12

Finally, on January 4, 2000, Bailey was taken to the emer-

gency room with a complaint of right knee pain.'” Medical

records show that Bailey refused aspiration of her knee,

which was swollen with “joint fluid.” She was given pre-

scription strength Motrin and released back to the jail with a

final diagnosis of arthritis. Jd. Toland contends that Bailey

made no other medical requests or complaints until the time

of her release on January 18, 2000.

Bailey contends that all of these requests were only made

to a jailer because Defendant Toland refused to see her after

she made several requests for a conference with him. Bailey

testified, “[W]hen you asked to be taken to the doctor...they

wouldn’t take you or they would ignore me. When you asked

why was your medication late, they would ignore you.”

Bailey admitted she never talked to Toland personally.

Toland testified that he never received any oral or written

complaint from Bailey concerning any condition within the

jail that was causing her to suffer, including any alleged

denial of medical treatment. Toland did however learn about

the alleged rape soon after it supposedly occurred.

(iii). Facts not included _in_ the District Court’s

Findings

As to the facts concerning Appellee Threats, he was

employed by Sheriff Ralph Toland in the position of jailer.

(R1-134-32). He mainly worked at night from 8 p.m. to 8

a.m. (R1-134-32). Appellee Threats was instructed to “stay

physically away from” the inmates. (R1-134-33). A part of

his duties was to check the cell sheet listing and number of

'’ On this occasion, Bailey alleges, she was denied medical treatment

for her knee injury for three or four days.

'' The remaining facts are taken from the transcript of the testimony at

the trial of the course, with appropriate reference to that transcript, and

from other evidence as indicated.

13

inmates, booking sheets, and to prepare inmates medica-

tion.(R 1-134-34),

Prior to the night in question, Bailey and Threats had

conversations about family, military, jailer schedules and,

according to Threats, sexual conversation, also. (R1-134-

36,37). Yet, Bailey could not remember what conversations

that she had with Threats. (R1-134-87).

On December 5, 1999, between 8:00 p.m. and 10:00 p.m.,

Threats admitted that he and Bailey had engaged in sexual

contact in the bathroom of the jail. (R1-134-42), Bailey,

however, could not recall anything that occurred at that time

(R1-134-88), however, the next day, she discovered semen in

her underwear along with marks and bruises on her body.

(R1-134-88,89). The Appellee Threats was off-duty for four

days after that incident. (R1-134-45).

Threats was ordeied not to have any physical contact with

female inmates (R1-134-33). Although he had been told

specifically to stay away from Bailey (/d., p. 40), he admitted

that he got a key and unlocked and opened Bailey’s cell door

and pointed for her to go toward the office (Id.. p. 41), and

then pointed for her to go into the bathroom, where he then

told her to turn around so he could have sex with her. (/d., p.

42). He stated that she dropped her shorts there and that he

had sex with her. (/d). Threats then said he made sure the

hallway was clear and told her to come out and go back into

her cell, and he locked the cell door behind her. (/d., p. 43).

Threats admitted that his conduct was inappropriate (/d., p.

45), and that he tried to conceal the fact that he had the sexual

encounter, but finally admitted it when he was subjected to a

DNA test. (/d., pp. 45-47).

Upon returning to work, Threats and Bailey engaged in a

conversation concerning the night of December 5. Threats

told Bailey that he did not know what happened. (R1-134-

45,90). After an investigation by the Clay County Jail and the

14

FBI, Threats admitted to having sexual relations with Bailey.

(R1-134-47). As a result of Threats’ conduct, he was ter-

minated from his position as a jailer (R1-134-48). The events

of December 5 caused Bailey to have various medical con-

ditions, such as panic attacks, (R1-134-91-93). The Appellant

had an extensive medical history prior to incarceration and

extensive legal issues. (R1-134- 94-100).

In its review of the evidence relating to Clay County and

Sheriff Toland, the trial court seemingly focused upon items

that tended to minimize the effect of the omissions of those

Defendants. Actually, the relevant health reports recorded

that some very serious conditions existed at the jail, including

the following:

1. Plumbing in poor repair.

2. All cells should have commode, lavatory should be

provided with temperate water. Trustees go to a

toilet and shower in a common toilet-on the main

hall.

3. Beds too close together to each other. Infectious

diseases could be transmitted to other inmates.

4. Walls should be in good repair.

5. Tea containers should be of approved construction.

6. The kitchen hood needs filters and a fan in hood.

7. Eliminate Roaches.

8

. Refrigerator not proper temperature. Should be

repaired or replaced.

9. Clean toilets and showers.

10. Provide adequate ventilation.

15

11. Eliminate overcrowded conditions. '?

12. Clean hallway and remove unnecessary items from

cells.

(R1-86-Ex. 12, 13, 14).

Other conditions that appeared in the reports were:

Eliminate unnecessary items outside of jail.

Repair roof to eliminate water from collecting in light

fixture.

Replace all the mattresses that are in poor condition.

Light fixtures in kitchen should be shielded.

Garbage cans should have tight fitting covers.

All floors should be kept clean.

(R1-97-17, 18).

The repeated reference to the same violations in the

corrective reports is clear evidence that Sheriff Toland and

the Clay County Commission were deliberately indifferent to

those inadequacies. (R1-97-17, 18).

The health reports also cautioned that “{t]ime and abuse

have severely deteriorated the plumbing, plumbing fixtures,

electrical systems, showers, ventilation systems, and heating

systems.” (/d). The filth made it very difficult for the

Plaintiff, whose cell was so dirty it could not be cleaned with

customary cleaning material, and the shower curtain was

covered with mildew. (/d). The jail was infested with

roaches, spiders, and lice, and the Plaintiff found roaches on

her body when she would awaken in the mornings, and was

infested with lice when she was released from jail. (id). A

jailer brought a live snake into the jail to terrorize inmates

(/d., p. 5), and a dirty cat was allowed to roam in the cell area

° The trial court observed that the overcrowding affected the male

prisoners only. (R1-114-3) (App. 7a).

16

and in the food area at the jail. (/d). Food would come to

Bailey “with hair in it.” (R1-97-13).

The evidence is clear that Sheriff Toland knew that he

needed more staffers, and that he had made that need known

to the individual members of the County Commission. (R1I-

97 Toland depos., p. 37). On the night of the sexual

encounter, Threats was the only jailer present, and if he had

been appropriately paired with another jailer it seems obvious

that the sexual encounter would have never occurred. /d.,

p. 40.

The sexual encounter obviously could have been avoided if

the Defendant Toland and the County Commission had

provided adequate back-up staffing or surveillance methods

to have exposed the efforts of Defendant Toland on the night

of December 5, 1999. The lack of attention to impending

dangers are matters of constitutional import, and the failure to

provide adequate staffing and protection procedures to insure

such attention are constitutionally prohibited. See Newman v.

State of Alabama, 503 F. 2d 1320, 1321 (Sth Cir. 1974).

At the conclusion of the evidence taken in the trial

involving Threats, at page R1-134-173 the Court gave the

following instruction:

Now you are not, in this case based on the evidence in

this case, you are not to decide one way or the other as to

whether it is or is not appropriate for a jailer to have

sexual relations with an inmate. That is not the basic

issue. The issue is is whether or not was or was not

with consent.

You cannot decide the case just based purely on the

basis that you just don’t think it’s appropriate for a jailer

to have sexual relations with an inmate. But you should

carefully consider as to whether it was with consent

or without consent, considering the totality of the

circumstances.

17

After all testimony was given, all evidence presented, and

jury instructions given, the jury deliberated and rendered a

verdict in favor of the Defendant Threats. on December 9,

2004. (R1-134-183; R1-129),

ARGUMENT

1. A jailer should be liable for having sexual contact

with an inmate under his control."

As to the jury instructions that the lower court gave prior to

deliberations, the instructions were flawed in that the jurors

were only to review whether the sexual contact was con-

sensual or not. The jurors were not allowed to consider that

Threats was in a position of authority over the Appellant.'* It

is true that some courts have held that while “consensual

conduct may violate municipal policy, it carries no consti-

tutional implication.” Stockman v. Lowndes C ounty, Missis-

sippi, 2000 WL 33907696 (N.D. Miss. 2000). The Eighth

Circuit has held that “welcomed and consensual sexual

contact between inmates and prison personnel does not

violate the Eighth Amendment.” Freitas y. Ault, 109 F.3d

1335, 1339 (8th Cir. 1997).

In this case, there was a special relationship between the

inmate and Jailer Threats. It is held that the “state’s duty to

protect those persons or to provide services for them arises

'* In this case, Bailey was a pre-trial detainee during her incarceration.

As such, she was entitled under the Fourteenth Amendment to the same

protections that are accorded to convicted persons under the Eighth

Amendment. Lancaster v. Monroe C ounty, Alabama, 116 F. 3d 1419,

1425 n. 6 (11th Cir. 1997); Hamm y. DeKalb County, 774 F. 2d 1567,

1573 (11th Cir. 1985). In fact, a pretrial detainee enjoys even more

protection than a convicted person, because an inmate who has not been

convicted may not be punished. See Hamm. supra.

'* Clay County Jail rules provided that an inmate may be disciplined

for “refusing to obey an order of any staff member.” (R1-85, Defendant

Ex. B).

18 .

from the custody or control.” Monfils v. Taylor, 165 F.3d 511,

517 (7th Cir. 1998). Within this special relationship, the

various circuits have followed the concept that “[s]pecific or

extensive training hardly seems necessary for a jailer to know

that sexually assaulting inmates is inappropriate behavior.”

Kitzman-Kelley v. Warner, 203 F.3d 454, 459 (7th Cir. 2000),

Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996).

There are circumsiances in which a “state had a duty to act on

behalf of those with whom it had a special relationship.”

Kitzman-Kelley at 459-460; see also Youngberg v. Romeo,

457 U.S. 307, 315 (1982); Parham v. J.R., 442 U.S. 584, 619

(1979); Estelle v. Gamble, 429 U.S. 97, 103-105 (1976);

Jackson v. Byrne, 738 F.2d 1443, 1446-1447 (7th Cir. 1984).

It is often stated “that the use of excessive force against a

prisoner can violate the Eighth Amendment, and that ‘the

unnecessary and wanton infliction of pain. . . constitutes cruel

and unusual punishment forbidden by the Eighth Amend-

ment.’” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir.

2003), quoting Whitley v. Albers, 475 U.S. 312, 319 (1986);

Ingraham v. Wright, 430 U.S. 651 (1977); Hudson vy.

McMillian, 503 U.S. 1, 5-6 (1992). The Tenth Circuit has

held that “an inmate has a constitutional right to be secure in

her bodily integrity and free from attack by prison guards.”

Cochran at 1212, quoting Hovater v. Robinson, | F.3d 1063,

1068 (10th Cir. 1993). This constitutional right includes the

right to be protected from sexual abuse. /d., Barney v.

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). The Second

Circuit has held that “[s]exual abuse of a prisoner by a

corrections officer has no penological purpose, and is simply

not part of the penalty that criminal offenders pay for their

offenses against society.” /d., Boddie v. Schnieder, 105 F.3d

857, 861 (2nd Cir. 1997). A prison guard or jailer employed

by the state can be liable under the Eighth Amendment for

using excessive force against prisoners in the form of sexual

abuse.” /d. at 1215, Barney at 1310.

19

Since there is a special relationship between a jailer and a

prisoner, the Defendants should have known, without ex-

cessive training sessions, that Bailey should have been

protected from the sexual encounter with Threats. Threats is

liable under the Fourteenth Amendment for the actions that

occurred, and the instructions by the trial court should have

covered the special relationship between the two parties.

Therefore, the jury instructions were inadequate and those

instructions that were given were misleading, and caused

prejudicial harm to the Appellant.

The Eleventh Circuit decision dealt briefly with the sexual

encounter itself by stating (App. 2a-3a):

“Second, Bailey contends that the district court erred

by not instructing the jury that she was incapable of

consenting to sexual intercourse with Jailer Threats

because_of the special relationship of authority that

Threats had with her, an inmate. . . ,' Here, Bailey

points to no legal authority in support of her position that

all jailer-inmate sex is nonconsensual. And, the

instruction that the district court gave comports with the

law of all other circuits which have considered whether

consent is a defense to an inmate’s charge that a jailer

raped her.”

In holding in a non-published opinion that consensual sex

between a jailer and an inmate does not involve a con-

Stitutional infringement, the Eleventh Circuit avoids advising

litigants by clearly established law whether such a jailer is

entitled to a defense of qualified immunity. In an earlier case

'° The Eleventh Circuit opinion also asserted that Bailey did not submit

such an instruction or distinctly object to the trial court’s failure to give

such an instruction. However, it was crystal clear from the record that

counsel for Bailey urged the position that sexual intercourse between a

jailer and an inmate was forbidden, and that the trial court would not

accept that position(R 1-134-129), and that the trial court recognized that

the objection was proper and that it was well understood. (R1-134-179),

20

of Adair v. Department of Community Affairs, 02-1575011

(August 14, 2003), this Court tacitly sanctioned another non-

published opinion essentially holding that reprisals against a

daughter because of her relationship with her own mother did

not violate clearly established constitutional law. The

Petitioner here has moved under Eleventh Circuit Local Rule

36.3 and I.0.P.-5 to have the Eleventh Circuit publish this

opinion so that lawyers and potential litigants ‘might be

advised of such holding.

2. The Liability of Sheriff Toland and Clay County

The trial court granted summary judgment in favor or

Sheriff Toland and Clay County by concluding that the

evidence did not show that Bailey suffered any injury from

overcrowding or from inadequate service. (RI-114-26).

(App.3la-32a). As to Toland, the trial court also con-

cluded that he was protected by the defense of qualified

immunity. (/d).

Even though the trial court minimized the effect of

inadequate jail conditions, the health reports revealed

significant deficiencies, including the following:

1. Plumbing in poor repair.

2. All cells should have commode, lavatory should be

provided with temperate water. Trustees go to a

toilet and shower in a common toilet on the main

hall.

3. Beds too close together to each other. Infectious

diseases could be transmitted to other inmates.

Walls should be in good repair. ~

Tea containers should be of approved construction.

The kitchen hood needs filters and a fan in hood.

a PS

Eliminate Roaches.

“, eae ee ee ee eee ee ee ee ge,

21

8. Refrigerator - not proper temperature. Should be

repaired or replaced.

9. Clean toilets and showers.

10. Provide adequate ventilation.

11. Eliminate overcrowded conditions. '©

12. Clean hallway and remove unnecessary items from

cells.

Other conditions that appeared in the other reports were:

Eliminate unnecessary items outside of jail.

Repair roof to eliminate water from collecting in light

fixture. :

Replace all the mattresses that are in pocr condition.

Light fixtures in kitchen should be shielded.

Garbage cans should have ti ght fitting covers.

All floors should be kept clean.

(R1-97-17, 18). The health reports also cautioned that

“[t]ime and abuse have severely deteriorated the plumbing,

plumbing fixtures, electrical Systems, showers, ventilation

systems, and heating systems.” (/d). The filth made it very

difficult for the Plaintiff, whose cell was so dirty it could not

be cleaned with customary cleaning material, and the shower

curtain was covered with mildew. (/d). The jail was infested

with roaches, spiders, and lice, and the Plaintiff found roaches

on her body when she would awaken in the mornings, and

was infested with lice when she was released from jail. (/d).

A jailer brought a live snake into the jail to terrorize inmates

(/d., p. 5), and a dirty cat was allowed to roam in the cell area

and in the food area at the jail. (/d). Food would come to

Bailey “with hair in it.” (R1-97-13),

'© The trial court observed that the overcrowding affected the male

prisoners only. (R1-114-3) ( App. 7a).

22

Sheriff Toland contended that he was not responsible for

the intolerable living conditions that existed at the jail, and

that it was “almost impossible” for him to keep “the current

facility safe and clean,” because the county had not provided

him with the funds to employ the staffing or security or

surveillance equipment necessary to provide inmates with a

safe environment. (/d., p. 7).'

While Sheriff Toland denies any knowledge of Bailey’s

repeated requests for medical attention, Bailey contended that

she repeatedly asked for a conference with Toland to

complain about the lack of medical attention, but he never

granted her an audience. (R1-114-10, 11).

It was established that the sexual encounter occurred

between midnight of December 5 and 6 a.m. on December 6,

1999, while the Defendant Frank Threats was the only jailer

in attendance, and while there were no back-up or safety or

warning or surveillance measures available for the protection

of the Plaintiff. (/d., p. 4). The sexual encounter probably

would not have occurred had two jailers been on duty. (R1-

77-4, Ex. A, p. 76). It is therefore clear that the lack of

staffing, resulting from inadequate funding, contributed to

Threats’s opportunity to carry out the sexual encounter. The

usual practice of the Defendant Toland was to have two

guards or jailers on duty at all times to insure the safety and

protection of inmates. (/d., p. 3).

It is now axiomatic that it is “but just that the public be

required to care for a prisoner, who cannot by reason of the

deprivation of his [her] liberty, care for himself.” Estelle v.

Gamble, 429 U.S. 97, 104 (quoting Spicer v. Williamson, 191

N.C. 487, 490 [1926]). However, in Alabama, sheriffs are

responsible for inmate care, and the duties of the counties

'’ There should be no question in this case about the awareness by the

Defendants of the inadequate jail conditions, because there was wide

publicity concerning those conditions. (R1-97-5).

23

“are limited to funding the operation of the jail and to

provided facilities to house the jail.” Turquitt v. Jefferson

County, Alabama, 137 F. 3d 1285, 1289 (11th Cir. 1998);

Stark v. Madison County, 678 So. 2d 787 (Ala. Civ. App.

1996). The Alabama Legislature has also imposed specific

requirements upon the counties regarding the establishment,

upkeep, and conditions of their Jails. See, e.g. Ala. Code

1975, §11-12-15(a)(1) and §11-14-13. (App. 39a-41a).

Alabama law places also upon sheriffs the strict responsibility

of providing a safe environment for prisoners. See Ala. Code

1975, §14-6-1, §14-6-7, and §14-6-97. (/d).

In Marsh v. Butler C ounty, Alabama, 268 F. 2d 1014 (11th

Cir. 2001), it was held that a county can be directly

responsible for a constitutional violation due to its acts or

omissions in failing to provide adequate jail safety, and even

when conditions only impose a significant threat to the safety

of inmates.

The Eleventh Circuit panel noted that it affirmed the

granting of summary judgment in favor of Sheriff Toland

based upon his qualified immunity defense (App. 32a). In

order for a court to deprive an official of the protection of

qualified immunity, it must be ascertained that the official,

acting within his discretionary authority, violated “clearly

established law.” In applying that standard, it is not

necessary to show that the specific action has been held to be

unlawful, but the unlawfulness must be apparent in the light

of pre-existing law. See Hope v. Pelzer, 536 U.S. 730, 739

(2002); Anderson v. Creighton, 483 U.S. 635, 640 (1987):

Mitchell v. Forsyth, 472 U.S. 511, 535, n. 12 (1985).

Under existing law, Sheriff Toland had no discretion

involving his duty to adequately care for and protect Bailey,

and that factor alone strips him of access to the defense of

qualified immunity. See Lee y. Ferraro, 284 F. 3d 1188,

1193-94 (11th Cir. 2002).

24

The qualified immunity defense has been denied in view of

cases holding that punishment of pre-trial detainees violates

due process principles. See Johnson v. Breeden, 280 F. 3d

1308, 1320 (11th Cir. 2002). This period of confinement was

filled with incidents that could be considered punishment.

For example, the district court identified one night where the

Plaintiff was placed in a cell with no bunk at all to sleep on as

a form of punishment. (R1-49-2).

For the reasons stated, neither Sheriff Toland nor Clay

County were entitled to the issuance of summary judgment

because there were significant and prevailing issues of

material fact as to the conditions existing at the jail. See

Celotex Corporation v. Catrett, 477 U.S. 317 (1986). Also,

Sheriff Toland is not entitled to an award of summary

judgment based upon his qualified immunity defense.

CONCLUSION

For all the foregoing reasons, it is respectfully submitted

that the Writ of Certiorari should be issued and the this cause

should be remanded to the courts below requiring them to

revisit the issues presented, in order to correct the errors

enumerated.

Respectfully submitted,

ALVIN T. PRESTWOOD *

PRESTWOOD & ASSOCIATES, P.C.

300 South Hull Street

Post Office Box 1910

Montgomery, Alabama 36102-1910

(334) 264-6401

* Counsel of Record Attorney for the Petitioner

APPENDICES

la

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed Aug. 9, 2004]

No. 03-16171

Non-Argument Calendar

D.C. Docket No. 01-03047-CV-PT-E

BILLY RENEE BAILEY,

Plaintiff-Appellant,

versus

CLAY COUNTY ALABAMA, RALPH TOLAND,

Sheriff of Clay County individually and

in-his official capacity, et al.,

Defendants-Appellees.

No. 04-10252

Non-Argument Calendar

D. C. Docket No. 01-03047-CV-PT-E

BILLY RENEE BAILEY,

Plaintiff-Appellant,

versus

FRANK THREAT, Jailor of Clay County, individually

and in his official capacity,

Defendant-Appellee.

Appeals from the United States District Court

for the Northern District of Alabama

2a

(AUGUST 9, 2004)

BEFORE: CARNES, HULL and COX, Circuit Judges.

PER CURIAM:

Plaintiff Billy Renee Bailey appeals the judgment entered

for the Defendants Ralph Toland (in his individual capacity),

Frank Threats (in his individual capacity), and Clay County,

Alabama, in Bailey’s 42 U.S.C. § 1983 action alleging viola-

tions of her Fourteenth Amendment rights. We affirm.

Bailey makes two contentions on appeal: first, that the

district court erred in entering summary judgment for Clay

County and Sheriff Toland on Bailey’s conditions-of-confine-

ment claim, and second, that the district court erred by im-

properly instructing the jury on Bailey’s rape claim against

Jailer Threats. We take up these contentions in turn.

First, the district court entered summary judgment for Clay

County and Sheriff Toland on Bailey’s conditions-of-confine-

ment claim pursuant to a thorough and well-reasoned opinion.

After reviewing the record in light of Bailey’s contentions,

we conclude that the district court properly entered summary

judgment. On appeal, Bailey points to no evidence showing

that she sustained any injury from the overcrowding or food

at the jail, or that either Clay County or Sheriff Toland knew

of and was deliberately indifferent to a serious medical need

of hers. Thus, we affirm the summary judgment which was

based on qualified immunity as to Sheriff Toland and on the

merits as to Clay County.

Second, Bailey contends that the district court erred by not

instructing the jury that she was incapable of consenting to

sexual intercourse with Jailer Threats because of the special

relationship of authority that Threats had with her, an inmate.

But Bailey neither submitted such an instruction, Fed. R. Civ.

P. 51(a), nor distinctly objected to the court’s failure to give

such an instruction, id. at (d)(2). See Heath v. Suzuki Motor

3a

Corp., 126 F.3d 1391, 1394 (11th Cir. 1997). Here, Bailey

points to no legal authority in support of her position that all

jailer-inmate sex is nonconsensual. And, the instruction that

the district court gave comports with the law of all the other

circuits which have considered whether consent is a de-

fense to an inmate’s charge that a jailer raped her. Thus, we

conclude that the district court did not commit plain error in

instructing the jury.

AFFIRMED.

4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

[Filed Sept. 16, 2003]

Civil Action No.: 01-PT-3047-E

BILLY RENEE BAILEY,

Plaintiff,

Vv.

CLAY COUNTY, ALABAMA; RALPH TOLAND, et al.,

Defendants.

FINAL JUDGMENT

In accordance with a memorandum opinion filed contem-

poraneously herewith, the motions for summary judgment

filed by defendants Clay County, Alabama and Ralph Toland

are granted in full. All claims against said Clay County,

Alabama and Ralph Toland are dismissed, with prejudice.

The court expressly determines that there is no just reason for

delay and expressly directs the entry of a final judgment in

favor of defendants Clay County, Alabama and Ralph Toland

on all claims against them. Costs are assessed against the

plaintiff.

This 15th day of September 2003.

/s/ Robert B. Propst

ROBERT B. PROPST

Senior United States District Judge

Sa

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

[Filed Sept. 16, 2003]

Civil Action No.: 01-PT-3047-E

BILLY RENEE BAILEY,

Plaintiff,

¥

CLAY COUNTY, ALABAMA; RALPH TOLAND, et al.,

Defendants.

MEMORANDUM OPINION

This cause comes on to be heard upon supplemental sub-

missions to Clay County, Alabama’s (“Clay County”) and

Ralph Toland’s (“Toland”) (collectively “defendants”) Mo-

tion for Summary Judgment (Doc. 85), filed on May 21,

2003.' In its July 25, 2003 Memorandum Opinion, this court

ordered plaintiff Billy Renee Bailey (“Bailey”) and defendant

Toland to brief the issues of “overcrowding at the jail,”

- “inedible food; lack of variety of food,” and medical care.

This court further ordered defendant Clay County to brief the

overcrowding and food issues.

' Sheriff Toland and Clay County both request awards of attorney’s

fees and costs in defending this matter “pursuant to 42 U.S.C. § 1488 and

other law.”

6a

FACTS AND PROCEDURAL HISTORY’

Toland was at all relevant times the Sheriff of Clay

County, Alabama. Plaintiff Billy Renee Bailey (“Bailey”)

was incarcerated at the Clay County Jail (“the Jail”). This

lawsuit surrounds Bailey’s incarceration in the Jail beginning

on November 30, 1999. See Def. Ex. 15.

Bailey was released on January 18, 2000. Bailey alleges

violations of 42 U.S.C. § 1983 as a result of unconstitutional

conditions at the Jail and denial of medical care while

incarcerated.

I. Overcrowding at the Jail

Bailey asserts that although the Jail was built to house 24

inmates, at the time of her incarceration the inmate population

was averaging about 61 inmates per day. She also contends

that the overcrowding problem was reported by local news

sources. Defendants contend that Bailey herself admitted that

often she only had one cellmate, and at times she had the

entire cell to herself. See Def. Ex. 23 at 124, 131. At one

point Bailey did have a cellmate that was present only on

weekends. /d. at 131-32. At one point Bailey did mention

sharing her cell with four or five other inmates, but that

was apparently for one weekend only. See Def. Ex. 24 at 106,

206-07. With the exception of one evening in which Bailey

was in a cell that had no bunk, she slept in her own

bunk every night. /d. at 205-06. Bailey was given a mattress

and sheets for her bed. /d. at 179. According to defendants,

Bailey never attributed any injury to overcrowding during her

deposition.

> This memorandum opinion restates facts addressed is its July 25,

2003, memorandum opinion regarding overcrowding, food, and medical

care at the jail, and adds new facts raised by the parties in their

supplemental briefs.

Ta

In her supplemental brief, Bailey alleges that Toland knew

of the overcrowding of the jail facility based on an August

1999 grand jury inspection in which Toland assisted. Also,

Bailey notes, Toland admitted to discussing the overcrowding

problems with the County Commission but did not put any-

thing in writing because he wanted to work with the Commis-

sion on a “personal level.” Toland apparently never applied to

a judge to rectify the crowding problems. As to Clay County,

Bailey argues, County Commissioner John Wheeles testified

to awareness of the “crowded” condition of the jail in June

1999. According to Bailey, the County Commission also

knew of the overcrowding problem from a grand jury in-

spection that informed the County the problem should be

eliminated.

Significantly, Toland contends, the evidence demonstrates

that there never were significant or sustained overcrowding

problems in the female cells. Toland testified that from 1998

to 1999 the female inmate population declined over fifty per-

cent’ but the male inmate population in the male cells

increased, particularly in the upstairs cells which housed only

male inmates. Toland further testified that this increase could

largely be explained by the presence of state prisoners which

the Department of Corrections refused to accept.’ Further-

more, Toland argues, he was doing all he could to encourage

the Department of Corrections to take these excess inmates.

Similarly, Clay County alleges, County Commissioners like

- John Wheeles only knew about crowding problems in the

upstairs, male-only section of the jail. See Ex. 34, p. 23.

According to Clay County, in recognition of its duties to fund

: According to Toland, during 1998, 101 female inmates were incarcer-

ated in the Clay County Jail, and during 1999 (the period of Bailey’s

incarceration), 50 female inmates were incarcerated there.

* Health Department Inspector Rusty Miller testified to overpopulation

in the upstairs portion of the jail but could not recall any problem with

overcrowding in the female cell area. See Ex. 5, 415.

8a

new jail facilities or renovate old ones, the County sought

more funding for the jails through iocal acts in Montgomery.

Clay County notes that the County Commission lacks taxing

power. See Ex. 34. p. 70.° In the 2000 and 2001 Legislative

Sessions, Clay County asserts, the Clay County legislative

delegation (at the Commission’s request) introduced local acts

authorizing the County Commission to impose a cigarette tax,

increase court costs, and raise the gasoline tax two cents per

gallon in the County, in order to fund the purchase of the

Russell Corporation Building and construction of a new jail.

These local acts passed, and the County Commission then

imposed the additional taxes and court costs. See Ex. 4, hg

During the time that the County Commission was working

with its legislative delegation to obtain financing for a new

jail, funds for ongoing maintenance at the existing Clay

County Jail were budgeted as in previous years with increases

in each budget. See Ex. 34, pp. 109-10.

II. Food at the Jail

Bailey described the food at the Jail as “inedible,” salty,’

often containing foreign objects such as human and cat hair

*In 1996 the Commission undertook to finance construction of a new

jail, with funding sources to include additional court costs, a two cent gaso-

line tax, and a tobacco tax. /d. In Fall 1996, the Commission appointed a

Blue-Ribbon Committee comprised of Clay County business leaders to

consider how to obtain funds to build a new jail. See Ex. 4, J 6. An

occupational tax proposal on the 1998 ballot failed by a large margin. /d.

“In October 2000, the County Commission gave the Chairman and

County Administrator authority to negotiate the purchase of the vacant

Russell Corporation Building in Ashland, in order that the building could

be converted into a new county jail as well as offices for the Sheriff, the

adult probation officers, and the County Commission. An agreement was

reached in 2001 and the jail portion of the building was scheduled for

completion at the end of July 2003. See Ex. 4, 4 8. This court does not

know the current status of the jail construction.

’ Bailey stated that the saltiness of the food was a health risk since she

had been prescribed a low-sodium diet by a physician.

9a

and other dried food, and lacking variety (“You were served

the same thing every day”). See Def. Ex. 24 at 114-16."

Bailey did not like what the Jail was serving and quit eating at

one point until a kitchen employee began to make her grilled

cheese sandwiches. /d. at 118. She eventually tired of that

meal as well. /d. at 119. Bailey contends that another inmate

suffered food poisoning, but neither Toland nor Jail Admin-

istrator Studdard has ever been made aware of food con-

tamination incidents. See Def. Ex. | at J 13; Ex. 3 at at q 2.”

Health Inspector Rusty Miller also stated that he had not been

made aware of complaints of contaminated food being served

or of food poisoning. See Def. Ex. 5 at q 14:

The Jail’s policy was to serve inmates three well-balanced

meals each day. The Jail Administrator placed store orders

(including orders for bread, meats, poultry, fish, canned/dried

items, and other general foods/supplies) based upon detailed

lists and accounting of the needed items and the number of

those items remaining in storage. Kitchen trusties prepared

the food and were required to wear hairnets and gloves. Trays

and utensils were gathered after each meal, when trays were

cleaned and rinsed before being placed in a high-steam

sanitizer. See Def. Ex. 3 at 11 13-14. Cups issued to inmates

upon their incarceration could be kept by inmates for use

throughout the day.'° The Jail gave inmates soap and deter-

gent to keep their cups clean. /d. at 15. All meal-time drinks

were poured from a common tea or water pitcher into each

inmate’s cup.

When Rusty Miller inspected the kitchen in December

1999, it received a rating of 89, which defendants assert is

* Specifically. Bailey stated, she tired of peanut butter and baloney

sandwiches.

” Tolend testified that he had not heard complaints about the food in

several years. See Ex. 1, 9 13; Ex. 3,4 12.

’ Inmates could keep cups from home if they wished.

10a

acceptable. According to defendants, the few deductions that

were taken had nothing to do with the Jail’s food protection

measures. See Def. Motion at 25. Defendants also note that

the score of 89 showed improvement from the two previous

inspections, where the kitchen received scores of 87 and 88

on June 2, 1999 and September 29, 1999, respectively. See

Def. Ex. 5 at 9 13; Exs. 12-14.

During his December 1999 inspection, Miller noted no

deficiencies in the following areas: food, food protection,

personnel (hygiene), water, sewage, garbage/refuse disposal,

pest control, kitchen ventilation, dressing rooms, and miscel-

laneous areas. Miller found that all food protection measures

such as temperature control, thawing, and storage met the

requisite standards. Further, the hygiene of the food handlers

and preparers, food disposal, and water sources met the requi-

site standards. The deficiencies noted in Miller’s December

1999 inspection involved the tabletop surface upon which

foods were prepared, some plumbing maintenance, broken

areas of the floor and wall, and the shielding of light fix-

tures.'' The largest number of points deleted (4) was based on

having no separate locked bathroom facility for each “trusty”

cell. “

'' Consistent with Bailey’s allegations. Clay County health reports did

mention roaches and the refrigerator temperature at the Jail. The June,

September, and December 1999 health reports all mention eliminating

roaches. However, although the June 1999 health report noted the need to

repair or replace the refrigerator since it did not operate at the proper tem-

perature, both the September and December 1999 health reports stated:

“two refrigerator/freezers have been replaced.” See Def. Ex. 12-14.

'? Health Inspector Miller testified that the bathroom facility is located

a few feet down the hallway from the trusty dorm and within ten yards of

the kitchen. According to Miller, the inspection report noted this defi-

ciency because the bathroom facility is not more conveniently accessible

within the trusty dorm area itself, and the deduction was made because

trusties work in the kitchen. See Ex. 5, | 12.

lla

III. Medical Care at the Jail

A. The Jail’s Medical Care/Medication Policies and

Procedures

The Jail’s policy is to provide medical attention upon any

inmate’s written or verbal request. In an emergency situation,

the inmate will be transported to the emergency room or the

Clay County rescue squad will be called. For non-emergency

Situations, the inmates are generally scheduled for the first

available appointment at the Clay County Medical Clinic. See

Def. Ex. | at 9 5; Ex. 3 at 9 5-6. It was also the policy of the

Jail to provide inmates with any and all medications brought

with them to the Jail or prescribed to them during their in-

carceration. /d. Defendants assert that Bailey was familiar

with the procedures, as she filled out a medical request form

for her cellmate, Kerrie Baker. See Def. Ex. 23 at 49. Both

Toland and Studdard stated that, to the best of their knowl-

edge, Bailey received care and/or medication every time that

she requested it. See Def. Ex. | at ¥ 5; Ex. 3 atq 5.

B. Medical Care Received by Bailey While Incarcerated

Bailey was booked into the Jail on November 30, 1999 at

8:30 p.m. by Jailer Joshua Gregg (“Gregg”). See Def. Ex. 16.

Bailey signed the booking sheet'’ which indicated that she

‘had given all information “concerning [her] health during this

medical screening.” /d. Bailey indicated that she suffered

from (1) mental illness, for which she took Xanax and Paxil,

(2) hypertension, (3) back trouble, and (4) a venereal disease

(genital herpes). See Def. Ex. 17. On December 1, 1999, Jail

staff contacted Bailey’s treating physician upon her claim that

She was suffering a panic attack. The medical records reflect

that an “okay [was] given to Clay County jailer for pt [patient]

to have additional | mg Xanax in event of panic attack per

3 . . . . .

MA twenty-five question checklist concerning various health issues ac-

companied this medical statement. A “yes” was marked for history of sui-

cidal tendencies and strange behavior at time of incarceration. Def. Ex. 17.

12a

Dr. Chafe.”'* See Def. Ex. 18; Ex. 19. Bailey asserts that she

suffered her first panic attack at the Jail, see Def. Ex. 24 at

70; however, defendants contend that Bailey had a past medi-

cal history of panic attacks. See Def. Ex. 21(a) at page 3 (list-

ing “panic attack” under pastmed/surg column).

Five days later on December 6, 1999, Bailey asked Gregg

to arrange for her to see Investigator Jean Dot Alexander be-

cause she could “smell . . . semen” when she urinated. See

Def. Ex. 23 at 148-49. Investigator Alexander came to the Jail

to meet with Bailey, who stated that someone had sex with

her. Jd at 149.'° Alexander began an investigation into the

complaint and transported Bailey to the Clay County Hospi-

tal. See Am. Compl. at § 11; Def. Ex. 23 at 150.'° The doctors

detected semen, bruising on Bailey’s shoulder, thigh, and

breasts, and teeth marks on her breasts. See Def. Ex. 23 at

150-52.

Bailey contends that she could not remember anything

about the incident until the next day, and she believes that she

was drugged because she had no memory and slurred speech.

See Def. Ex. 23 at 149-50; 158-59. However, the doctor’s

notes from Bailey’s trip to the emergency room stated: “NAD

[no apparent distress], alert, speech is clear.” See Def. Ex.

'* In her supplemental brief, Bailey notes that on various occasions her

requests for medication were denied. On one particular occasion, Bailey

alleges, she asked her jailer, defendant Frank Threat, to bring her Aleve

for fever, but he raged and reached for his mace. There is no evidence that

Toland was aware of the incident.

'S Bailey alleges that she was raped by defendant Frank Threat. This

court has previously dismissed all claims against Toland and Clay County

concerning the alleged rape.

'© Toland denies any delay in transporting Bailey to a physician after

she transported her alleged rape on December 6, 1999. Citing excerpts

from Bailey’s first deposition, Toland contends that Alexander's “investi-

gation” consisted of asking the question “what happened,” to which Bailey

responded “someone had sex with me.” Immediately afterward, Toland

contends, Bailey was transported to the hospital.

13a

21(a). According to Toland, all of these records are devoid of

any mention of Bailey being drugged. No drug screening was

ordered, and Bailey herself admitted that no one has actually

ever told her that she was drugged. See Def. Ex. 23 at 158."’

The Clay County Hospital performed a number of tests on

Bailey, including a urine HCG pregnancy test, which was

positive, and a rape kit. See Def. Ex. 21(a). Because the urine

HCG test was positive, a serum, or blood HCG test (beta

HCG) was also performed. The result of the latter test was 1,

and defendants contend that any number less than 5 is consid-

ered a negative test for pregnancy. See Def. Ex. 27 (expert

report); Def. Motion at 31. As Bailey had already left the

hospital when these results came back, a nurse called the Jail

and informed Jailer Leroy Brown that the test was negative,

specifics about Bailey’s medication, and that Bailey should

see her “OB doctor ASAP.” See Def. Ex. 2] (a).

Later that same night, at 10:15 p.m., Bailey was readmitted

to the hospital to “R/O [rule out] ectopic pregnancy.” See Ex.

21(b). Bailey had an ectopic pregnancy before, prior to her

tubal litigation, and she was concerned that she may have

another one because of the alleged rape. See Def. Ex. 21(a).

An ultrasound was performed which found no “evidence of

intrauterine pregnancy identified,” although it did not rule out

such a possibility because it may have been too early to tell.

See Def. Ex. 21(b). Bailey was taken back to the hospital on

December 8 and 10 for follow-up HCG tests, but it was

determined on December 10, 1999 that no further treatment

was needed. /d., Def. Motion at 32-33.'* The December 10th

’ Defendants note that three and one-half months earlier, Bailey appar-

ently thought that she had been drugged by her estranged husband while

they were at dinner together. See Def. Motion at 30 n.10.

a: Apparently, on December 7, 1999, Bailey’s general physician asked

that she be transported to Dadeville for an examination. While the jail staff

was prepared to facilitate this request, Toland contends, Bailey refused to

go. See Def. Ex. 22.

I4a

test confirmed she was not pregnant. Defendants assert that

the evidence shows that Bailey, even if she was pregnant,

could not have become so as a result of the alleged rape. See

Def. Motion at 32.

Bailey states that she miscarried “six days” after the

alleged assault. See Def. Ex. 24 at 47-48: She further alleges

that Jailers Jason Gentry and Leroy Brown refused her

request to be taken to the doctor after she noticed spotting;

instead, Gentry “ignored” her and Brown “snickered at [her]

when he walked past and he wouldn't stop.” /d. Defendants

counter that Brown was not on duty on December I1 or

December 12, 1999. Defendants also again contend that the

weight of evidence suggests that Bailey was not ever preg-

nant, and thus could not have miscarried. See Def. Motion at

34-35; Def. Ex. 27.'" Furthermore, Defendants contend, Bailey

cannot show that the problems she suffered after leaving the

Jail are attributable to events that occurred at the Jail. See

Def. Br. at 36-37 (discussing cause of Bailey’s subsequent

surgery. etc.).

Bailey also contends that she began suffering from the flu

and requested medical attention. See Def. Ex. 23 at 52-53.

However, Bailey contends, it was three or four days before

someone took her to the doctor, even though she had been

Toland relies upon medical testimony provided by Dr. Lee Sharma,

a board-certified gynecologist practicing in Alabama. After examining

Bailey's medical records, Dr. Sharma concluded that Bailey most likely

was never pregnant, never suffered a miscarriage, and experienced any

subsequent problems because of a pre-existing disease rather than any-

thing that happened at the Clay County Jail. See Def. Ex. 27, p. | of Affi-

davit, pp. 5-6 of Report.

Bailey previously attacked Dr. Sharma's opinion, noting that she had

not deposed Dr. Sharma, Dr. Sharma never personally examined her, and

the doctor had only been practicing medicine for six years, etc. Bailey also

noted that Sharma's medical opinions, even if accepted, have no bearing

on her jail conditions claims. See Pl. Toland Reply Br. at 3-4.

1Sa

asking for medical care the entire time. /d. On December 29.

1999, Bailey was taken to the Clay County Medical Clinic.

Bailey was prescribed cough medicine, an antibiotic, and anti-

nausea medication. See Def. Ex. 25. According to jail logs,

Bailey took the entire course of cough and antibiotic medi-

cines but refused to take the anti-nausea medication. See Def.

Ex. 19. According to Toland, on December 29, 1999, Bailey

complained of flu and was examined by Dr. Hensleigh of the

Clay County Medical Clinic. No evidence indicates Bailey

complained to Hensleigh of having flu symptoms for several

days or suspecting a miscarriage.

Finally, on January 4, 2000, Bailey was taken to the emer-

gency room with a complaint of right knee pain.”’ Medical

records show that Bailey refused aspiration of her knee,

which was swollen with “joint fluid.” See Def. Ex. 21(e). She

was given prescription strength Motrin and released back to

the jail with a final diagnosis of arthritis. Id. Toland contends

that Bailey made no other medical requests or complaints

until the time of her release on January 18, 2000. See Ex. 5.

Bailey contends that all these requests were only made to

jailers because defendant Toland refused to see her after she

made several requests for a conference with him. Bailey

testified, “[W]hen you asked to be taken to the doctor...

they wouldn't take you or they would ignore me. When you

asked why was your medication late. they would ignore you.”

Bailey admitted she never talked to Toland personally. Toland

testified that he never received any verbal or written com-

plaint from Bailey concerning any condition within the jail

that was causing her to suffer, including any alleged denial of

medical treatment. Toland did learn about the alleged rape

soon after it supposedly occurred.

™ ‘ , , . .

™ On this occasion, Bailey alleges, she was denied medical treatment

for her knee injury for three to four days.

16a

IV. Procedural Posture

Bailey filed her original complaint on November 29, 2001,

against Clay County, Toland and defendant Frank Threat. On

March 5, 2002, the court dismissed all state and federal

claims against Clay County and Toland in his official capac-

ity. All state claims were dismissed against Toland in his

individual capacity. See Docs. 24-25. Bailey filed an amended

complaint against Toland and Threat on March 19, 2002. On

June 24, 2002, the court again dismissed any claims against

Toland in his official capacity. As to his individual capacity,

the court allowed Bailey to maintain federal claims for un-

constitutional jail conditions (which presumably would in-

clude denial of medical care), but not for claims related to the

alleged rape. See Docs. 39-40. The rape claims were allowed

against Threat, but the court noted that any trial would be

bifurcated so that no evidence of the rape could be introduced

against Toland. fd. Additionally, the court allowed Bailey to

maintain federal claims for alleged unconstitutional jail con-

ditions against Clay County.

On July 25, 2003, the court issued a memorandum opinion

striking most of the violations alleged by Bailey, except for

overcrowding, food, and medical care. As to Toland, the court

ordered defendant to brief all three alleged violations. As to

Clay County, the court ordered briefing on overcrowding and

food (as the only possible bases for Clay County’s liability).

‘ SUMMARY JUDGMENT STANDARD

Summary judgment may be granted based upon facts de-

veloped through pleadings, discovery and supplemental affi-

davits, etc., if together, they show that there is no genuine

issue as to any material fact. Celotex Corp. v. Garrett, 477

U.S. 317, 322-323 (1986). A dispute is genuine “if the evi-

dence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby Inc., 477

U.S. 242, 248 (1986). The party moving for summary judg-

17a

ment bears the initial burden of explaining the basis of his

motion. Celotex, 477 U.S. at 323. “It is never enough [for the

movant] simply to state that the non-moving party could not

meet their burden at trial.” Mullins v. Crowell, 228 F.3d 1305,

1313 (11th Cir. 2000) (quotation omitted). The non-moving

party then bears the burden of pointing to specific facts dem-

onstrating that there is a genuine issue of fact for trial.

Celotex, 477 U.S. at 324. The non-moving party “must either

point to evidence in the record or present additional evidence

‘sufficient to withstand a directed verdict motion at trial

based on the alleged evidentiary deficiency.’”” Hammer y.

Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quotation

omitted). Summary judgment is required where the non-mov-

ing party merely repeats its conclusory allegations, unsup-

ported by evidence showing an issue for trial. Comer y. City

of Palm Bay, 265 F.3d 1186, 1192 (11th Cir. 2001) (citation

omitted).

Summary judgment will not be granted until a reasonable

time has been allowed for discovery. Comer, 265 F.3d at

1192. Moreover, “[w]hen deciding whether summary judg-

ment is appropriate, all evidence and reasonable factual infer-

ences drawn therefrom are reviewed in a light most favorable

to the non-moving party.” Korman v. HBC F lorida, Inc., 182

F.3d 1291, 1293 (11th Cir. 1999). Finally, the trial court must

resolve all reasonable doubts in favor of the non-moving

party, although it need not resolve all doubts in a similar

fashion. Earley v. Champion Int’1 C orp., 907 F.2d 1077, 1080

(1 1th Cir. 1990).

ARGUMENTS

I. General Legal Observations

Bailey observes that the public is responsible for prisoner

care because prisoners cannot care for themselves. See Estelle

-v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). Re-

garding county jails, the county’s duty is limited to providing

facilities and funding the operation of the jail. See Turquitt v

18a

Jefferson County Alabama, 137 F.3d 1285, 1289 (11th Cir.

1998) (citation omitted).”' Bailey argues, “A local government

can be directly responsible for a constitutional violation due to

its acts or omissions” Marsh v. Butler County, Alabama, 268

F.3d 1014, 1026 (11th Cir. 2001). Furthermore, Bailey

contends, a sheriff's legal! duties are founded upon “the legal

custody and charge of the jail in his county and all prisoners

committed thereto, except in cases otherwise provided by law,

and may appoint a jailer for whose acts he is civilly

responsible.” See Ala. Code 4 14-6-1 (1975). As such, Bailey

argues, Sheriff Toland “is responsible for the more specific jail

conditions that the Court has found attributable to him.”””

99Le

The Alabama Code, Bailey concludes, intended that county

commissioners and sheriffs be responsible for their actions.

According to Bailey, neither defendant followed Alabama

statutory law, and each defendant is liable. Bailey observes

that “the conditions for which the Defendants are responsible

are intertwined. For example, the overcrowded condition has

likely contributed to the inattention to the medical and nutri-

tional needs of the inmates—there were simply too many

prisoners for the limited staff that was provided.”

Defendant Clay County observes that the Constitution only

requires jail authorities to provide the “minimal civilized

measure of life’s necessities . . . . [not] comfortable prisons.”

See Rhodes v. Chapman, 452 U.S. 337, 347-49 (1981). Fur-

*' Plaintiff relies upon Hamm vy. Dekalb County, 774 F.3d 1567, 1573

(11th Cir. 1985) for the following: “[I]t has also been held that govern-

ments can always improve the food, living conditions, and medical treat-

ment at these detention facilities by increasing the funds for those

facilities.” As noted in this court’s July 25, 2003 Memorandum Opinion,

Hanm also stated: “Thus, a state’s decision to maintain at a reasonable

level the quality of food, living space, and medical care rather than

improve or increase its provisions of those necessities serves a legitimate

purpose: to reasonably limit the cost of detention.’” /d.

2? . ‘ : ”

~ The court does not recall any such specific “findings.

19a

ther, Clay County contends. deprivations must be “suffi-

ciently grave” to rise to the level of Eighth (or Fourteenth)

Amendment violations. See Wilson y. Seiter, 501 U.S. 294,

298 (1991). According to Clay County, Bailey has not shown

that she was denied the minimal necessities of civilized life or

that she experienced anything more than discomfort (if that)

due to the Jail’s alleged overcrowding and inadequate food

service. Moreover, Clay County contends, Bailey has demon-

strated no deliberate indifference on the part of Clay County.

Finally, Clay County argues, even if it is true that govern-

ments can improve food and living condition in Jails by

increasing funds for them, “it does not follow that the failure

to perpetually increase funding equates to a constitutional

violation.” See Def. Supp. Brief at p. 2, relying upon Hamm

v. DeKalb County, 774 F.2d 1567, 1573 (11th Cir. 1985),

II. Overcrowding at the Jail

A. Bailey’s Position

I. Liability of Clay County

First, Bailey reminds this court of its observation that Clay

County can be held liable for jail overcrowding.”° Bailey

relies upon Alabama Code §§ 14-6-103 and 11-14-13 re-

garding county jails:

Each county jail or town or city prison must be of suf-

ficient size and strength to contain and keep securely the

prisoners confined therein and must contain separate

apartments for men and women... .

The county jail must be of sufficient size and strength to

keep securely the prisoners which may be confined there-

in and must contain at least two apartments, properly

*’ The July 25, 2003 memorandum Opinion stated: “The only reasona-

bly (perhaps) arguable basis for liability of the county are as stated in

numbers 3 (food) and 9 (overcrowding).”

20a

ventilated so as to secure the health of those confined

therein: one for men and one for women.

Housing excessive numbers of inmates, see Nicholson at

308, or having prison conditions that result ‘unquestioned and

serious deprivation of basic human needs,’” see Johnson v.

U.S., 816 F.Supp, 1519, 1523 (N.D. Ala. 1993) (citation omit-

ted), constitutes cruel and unusual punishment.

Bailey notes that jail health reports had admonished Clay

County to eliminate overcrowded conditions and raised the

issue of “[b]eds too close together.” Moreover, Bailey argues,

Clay County should have been aware of the alleged uncon-

stitutional jail conditions due to the various established re-

porting methods. The Department of Corrections must inspect

the jails to secure justice, humanity, and economic manage-

ment. See Turquitt at 1289. Likewise, the County was re-

quired to stay informed about conditions within the jail, as

reflected in the statutory mandate regarding county health

officers. Id. at 1290." Pursuant to its right, Bailey notes, Clay

County inspected the county jail. Alabama law also imposes

a duty on the County Commission to appropriate money for

the county jail and to order the issuance of a warrant payable

to the sheriff regarding this appropriation. See Ala. Code

q 11-14-20.

** Pursuant to Ala Code q 22-3-5(3)(1975), county health officers

must:

[ Visit all jails... and... make careful investigation as respects the

drinking water, food, clothing, and bedding supplied to prisoners

and as to the ventilation, air space, heating and bathing facilities,

drainage, etc., of these institutions; and when any of said supplies

are found to be inadequate in quantity or deficient in quality or any

said conditions unsanitary, the county health officer shall make in

writing a report thereof to the . . . county commission or the proper

municipal authorities, as the case may be. [These same parties] shall

carry out whatever recommendations are made by the county health

officer. ...

2la

Specifically, Bailey points to Commissioner Wheeles’s

awareness of the “crowded” conditions at the Clay County

jail, as well as Clay County’s awareness stemming from a

1999 grand jury inspection and previous discussions among

Commission members.

2. Liability of Toland

Bailey cites from the Alabama Code:

If the jail of any county is destroyed, or becomes in-

sufficient or unsafe, or any epidemic dangerous to life is

prevalent in the vicinity or there be danger of rescue or

lawless violence to any prisoner, any circuit court judge

may, on the application of the sheriff and proof of fact,

direct the removal of any prisoner or prisoners to the

nearest sufficient jail in any other county; and it is the

duty of such judge, in such case, tO make an en-

dorsement on the order or process of commitment,

Stating the reason why such removal is ordered, and to

date and sign such endorsement.

Ala. Code § 14-6-7(1975), Although Sheriff Toland knew of

the overcrowding problem at the jail, Bailey asserts, he did

not attempt to put the issues in writing because he wanted

to work with the Commission on a “personal level.” No evi-

dence suggests that Toland petitioned a judge io rectify this

condition,

B. Toland’s Position

Sheriff Toland emphasizes Bailey’s failure to connect over-

crowding in the male inmates’ section of the jail with her own

constitutional rights. Even if Bailey proved part of the jail

was exceeding its design capacity, Defendants argue, that fact

does not mean Bailey herself suffered a constitutional depri-

vation. Plaintiffs do not have standing to assert other inmates’

claims, Toland contends. See, e.g., Bass v. Singletary, 143

F.3d 1442, 1446 (1 Ith Cir. 1998): Weaver vy. Wilcox, 650 F.2d

22a

22.27 (3d Cir. 1981); Johnson v. Jones, 2001 WL 102343, *5

n.3 (S.D. Ala. 2001).

Toland highlights Bailey’s testimony about having only

one cellmate, sometimes the cell to herself, multiple cellmates

for just one weekend, and her own bunk except for one night

when she was in the administrative segregation cell.” Fur-

thermore, Toland notes, in her deposition Bailey does not

attribute any injury to the alleged overcrowding.

While the record reveals male overcrowding in the Jail,

Toland asserts, there is no evidence of female overcrowd-

ing.’ Additionally, Toland argues, even if Bailey had suf-

fered some constitutional deprivation due to overcrowding,

Toland could only be held liable if he knew about her situa-

tion and was deliberately indifferent to it. Here, Toland con-

tends, Bailey has presented no evidence of Toland’s knowl-

edge or deliberate indifference.

C. Clay County’s Position

Clay County adopts and incorporates arguments contained

in Toland’s suppplemental brief. Most importantly, Clay

County contends, Bailey has shown no link between her own

constitutional rights and overcrowding in the male section of

the jail. Moreover, Clay County argues, Bailey has offered no

evidence that Clay County knew of specific injuries to Bailey

and was deliberately indifferent to them. Clay County asserts

that Bailey’s reliance on certain Alabama statutes is mis-

placed, since “such objective knowledge is insufficient to

establish notice after the United States Supreme Court’s rul-

ing in Farmer v. Brennan, 511 U.S. 825 (1994).” While pre-

Farmer cases suggested that objective awareness would suf-

*° Toland draws the court’s attention to the holding in Castillo v.

Bowles, 687 F. Supp. 277, 281 (N.D. Tex. 1988) (“[T]}he fact that Plaintiff

was temporarily forced to sleep on the jail floor does not give rise to a

violation of his constitutional rights and is not cognizable under § 1983.”)

» . . . ae

°° These facts are addressed earlier in this memorandum opinion.

23a

fice to establish deliberate indifference to plaintiff’s needs,

Clay County contends, Farmer rejected that understanding

and required a subjective component. See Steele v. Shah, 87

F.3d 1266, 1270 (1 Ith Cir. 1996). According to Clay County,

County Commissioners like Commissioner Wheeles were

only aware of overcrowding in the male section of the Clay

County Jail.?’

Moreover, Clay County argues, the Commission’s concrete

actions in responding to the problem—seeking to enhance

revenue through local acts, appointing a Blue Ribbon Com-

mittee of business leaders to study the problem, authorizing

the purchase of the Russell Corporation Building as a new

county jail—demonstrate “anything but” deliberate indiffer-

ence. In light of this evidence, Clay County contends, Bailey

has created no genuine issues of fact as to whether she

suffered injuries stemming from overcrowding in other parts

of the jail, whether Clay County knew of any such injuries.

and whether Clay County was deliberately indifferent to her

Situation.

III. Food at the Jail

A. Bailey’s Position

Bailey recounts specific problems she encountered with jail

food and specific problems with the condition of the kitchen,

as revealed by health reports.** On the issue of Clay County’s

- Clay County observes that constitutional violation does not necessar-

ily follow from excess capacity; instead, courts consider whether the over-

crowding led to deprivation of food, medical care, or sanitation. See Rhodes

v. Chapman, 452 U.S. 337, 345 (1982) (finding no Eighth Amendment

violation in a situation where “double celling made necessary by the un-

anticipated increase in Prison population . . . neither. . . [led] to

deprivations of food, medical care, Or sanitation... [nJor.. . increase[d]

violence among inmates or create other conditions intolerable for prison

continement.”

> . . . . Ba

* These facts are addressed earlier in this Memorandum Opinion.

wee:

24a

liability, Bailey argues, Alabama law mandates: “(t]he county

commission of each county shall supervise the feeding of all

prisoners in the county jails over which it has jurisdiction.”

Ala. Code § 14-6-41(6)(1975). Furthermore, Bailey argues,

“(t]he failure to properly prepare and serve nutritionally ade-

quate food to inmates who are unable, due to their confine-

ment, to seek alternative sources of nutrition constitutes a

violation of the inmates’ Eight and Fourteenth Amendment

rights.” See Nicholson v. Choctaw County Alabama, 498 F.

Supp. 295, 309 (S.D. Ala. 1980).

Regarding Toland’s liability, Bailey contends, the foun-

dation of a sheriff’s duties is the legal custody and charge of

his jail and its prisoners. See Ala. Code § 14-6-1 (1975).

Moreover, Bailey contends, Sheriff Toland is charged with

feeding (whether in person or through a jailer) prisoners in

the jail under his jurisdiction, see Ala. Code § 14-6-40 (1975),

and “shall see that the food for the inmates of the jail . . . is

nutritious, clean, wholesome and of sufficient quantity and

variety and shall have kitchens where food is prepared for the

inmates adequately screened against flies.” Ala. Code § 14-6-

97 (1975). The lack of variety of food at the Jail, Bailey

argues, violated this statute.

B. Toland’s Position

Despite Bailey’s allegation that another inmate suffered

from food poisoning, Toland asserts, neither Toland, the jail

administrator, nor Health Inspector Miller were aware of any

such incident. Toland testified that he had heard no com-

plaints about food for several years. See Ex. 1, § 13; Ex. 3,

q{ 12. Toland cites facts mentioned earlier in this memoran-

dum opinion regarding food service and preparation in the jail

and _ health/sanitation measures. Toland realleges that the

December 22, 1999 kitchen inspection score of 89 demon-

strated improvement over the prior two inspections. Toland

contends that Bailey’s food-related complaints do not rise to

the level of a constitutional claim or prove deliberate indiffer-

25a

ence. See Hamm v. DeKalb County, 774 F.2d 1567, 1575

(1985) (“The fact that the food occasionally contains foreign

objects or sometimes is served cold, while unpleasant, does

not amount to a constitutional deprivation.”) Furthermore.

Toland contains, there is no proof that Toland personally

knew of Bailey’s food-related complaints and Bailey has

not identified clearly established law which would have put

Toland on notice that his conduct (regarding Bailey’s food

complaints) was unconstitutional.

C. Clay County’s Position

Clay County adopts and incorporates Toland’s supple-

mental arguments, including Toland’s reliance on the Hamm

case and Toland’s detailed account of the Jail’s enforced

policies to ensure adequate food service and health measures.

Additionally, Clay County argues, Bailey never demonstrated

that Commissioner Wheeles was aware of alleged food prob-

lems in the jail, so plaintiff has not made a case for deliberate

indifference.

IV. Medical Care at the Jail

A. Bailey’s Position

Bailey cites Alabama Code § 14-6-9:

When the life or health of any prisoner, who is not

confined under process from any court of the United

States, may be seriously endangered by longer confine-

ment in jail and that fact is made to appear Clearly to any

circuit court judge, such judge must, by an order in

writing, direct the sheriff or jailer to remove him to some

suitable place or hospital, as near as may be to the jail,

and there safely to keep him until his health is suffic-

iently restored to authorize his recommitment to jail.

This statutory provision also requires the sheriff or jailer to

provide “necessary medicines and medical attention to those

who are sick or injured, when they are unable to provide for

themselves.” /d.

26a

Bailey contends that Toland violated both her Eighth and

her Fourteenth Amendment rights. Bailey notes that these two

amendments place limitations on the “treatment and condi-

tions that states impose on prisoners.” See Hamm at 1571.

Importantly, Bailey asserts, the minimum standards for pro-

viding medical care and basic necessities to pre-trial detainees

and convicted prisoners are the same. See Lancaster v.

Monroe County, Alabama, 116 F.3d 1419, 1425 (11th Cir.

1997); Hamm at 1574. However, Bailey contends, pre-trial

detainees have some rights that inmates do not have: “While a

sentenced inmate may be punished in any fashion not cruel

and unusual, the due process clause forbids punishment of a

person awaiting trial but not yet adjudged guilty of any

crime.” Hamm at 1572. If a condition is not reasonably

related to a legitimate goal, /.e., is arbitrary or purposeless, a

court may infer that the purpose of the governmental action is

“punishment” that may not be inflicted upon detainees. /d. at

1573. Furthermore, Bailey argues, “it is an unreasonable

response for an official to do nothing when confronted with

prison conditions . .. that pose a risk of serious physical harm

to inmates.” Marsh at 1034. Bailey notes generally that

Alabama law gives the sheriff control over inmates, jail em-

ployees, and the jail. See Ala. Code § 14-6-1 (1975).

Despite Toland’s deposition testimony to the contrary,”

Bailey argues, Toland knew or should have known of Bailey’s

medical needs, since Toland required her to provide informa-

tion about her medical history and current medications during

* Toland’s deposition stated:

Q: What about, do you know whether or not Ms. Bailey asked for

medical attention during the course of the time she was there; and

during the course of time she said she had a miscarriage, whether

she asked for medical care that she didn’t get?

A: I don’t have any—any knowledge of that.

See Pi. Supp. Brief. Attach. B.

27a

the initial booking process. The initial booking sheet included

her medical conditions, e.g. “back problems,” “hypertension,”

and “mental illness,” her medications, e.g., Xanax and Paxil,

and a twenty-five question checklist that revealed Bailey’s

history of mental illness, suicidal tendencies, and strange

behavior at incarceration. Toland’s extensive submission of

Bailey’s medication jogs, Bailey contends, actually supports

the inference that Toland had full knowledge of Bailey’s sub-

standard medical conditions. i

Bailey argues that the most important medical condition

she suffered in jail and the condition “that could possibly be

the most severe with respect to long-term physical, psy-

chological and emotional trauma producing irreparable harm”

was her alleged rape. Her alleged rape, Bailey contends

“presented the Defendant with a situation of the utmost

importance and one where time was of the essence to see that

[1] received the appropriate medical attention.” By subjecting

her to interrogation instead of immediately addressing her

physical needs, Bailey argues, Toland delayed the urgent

need for treatment. According to Bailey, this untimely delay

exacerbated the medical conditions she suffered upon ad-

mittance to the Clay County Jail and resulted in the develop-

ment of additional medical conditions after her release.”

Bailey admits that she must allege at a minimum that

Toland acted with “deliberate indifference” to her medical

conditions. See Wilson v. Setter, 111 S. Ct. 2321 (1991)!

When considering a “deliberate indifference” claim, Bailey

contends, courts should consider whether the official knew of

The court adheres to its previous position that it will not admit any

evidence related to the alleged rape against Toland or the County. The

medical attention in that regard was certainly not indifferent. Persistence

in pursuing this claim against Toland does not add to its validity.

* Wiison further held that “only those deprivations denying ‘the mini-

mum civilized measure of life’s necessities,’ are sufficiently grave to form

the basis of an Eighth Amendment violation.” /d. at 298 (citation omitted).

28a

the plaintiff's need for medical care.” Additionally, Bailey

argues, plaintiff's showing that a doctor took the “easier and

less efficacious route in treating an inmate” or that medical

care was delayed or denied would be sufficient to prove de-

liberate indifference to the inmate’s health and safety. See

McDuffie v. Hopper, 982 F. Supp. 817, 826 (M.D. Ala 1997)

(citation omitted). Furthermore, Bailey argues, “grossly in-

competent, inadequate, or excessive [medical care] as to

shock the conscience or to be intolerable to fundamental

fairness,” has been held to violate the Eighth Amendment.

See Rogers v. Evans, 792 F.2d 1052, 1058 (1 1th Cir. 1986).

Bailey adds that “failure to provide prompt attention to

serious medical treatment for non-medical reasons” consti-

tutes deliberate indifference. Lancaster at 1425.” Bailey

* Bailey quotes from Justice White’s concurrence in Wilson: “{a}n

express intent to inflict unnecessary pain is not required.” (citation omit-

ted). Justice White concurred in the judgment, not the opinion.

“On the issue of delay, Bailey relies upon Hill vy Dekalb Reg’! Youth

Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994, which indicated that delay

in medical treatment is a primary factor in considering the seriousness of

an inmate’s medical reeds. This court notes that Hill also stated:

Where the delay results in an inmate's suffering “a life-long handi-

cap or permanent loss, the medical need is considered serious.” An

inmate who complains that delay in medical treatment rose to a con-

stitutional violation must place verifying medical evidence in the

record to establish the detrimental effect of delay in medical treat-

ment to succeed. Further, we have held that “[t}he tolerable length

of delay in providing medical attention depends on the nature of

the medical need and the reason for the delay (Emphasis added).

Consequently, delay in medical treatment must be interpreted in the

context of the seriousness of the medical need, deciding whether the

delay worsened the medical condition, and considering the reason

for the delay.

(Citations omitted). /d. at 1188.

Furthermore, this court notes, Hill defined a serious medical need as

“one that has been diagnosed by a physician as mandating treatment or

one that is so obvious that even a lay person would easily recognize the

29a

repeats her factual contentions that medication and treatment

. . . . . 3

were delayed at various times during her incarceration.”*

B. Toland’s Position

Bailey’s complaint, Toland states. alleged Toland’s failure

“to provide adequate medical care to the Plaintiff when she

miscarried a few days [after becoming pregnant], resulting

in serious consequences to her health [and] [sJeveral months

later, she underwent surgery as a result of health problems

created thereby.” Toland argues that he is entitled to summary

judgment for the following three reasons:*° (1) Bailey offered

no competent medical evidence that she was pregnant,

miscarried, or suffered “any serious consequences to

her health” as a result of her incarceration at Clay County

Jail; (2) Bailey offered no evidence or legal authority to

justify a finding that Toland was “deliberately indifferent” to

a serious medical need (even if Bailey could prove she had

one); and (3) Bailey offered no “clearly established law” suf-

ficient to deprive Sheriff Toland of qualified immunity.

Addressing the first reason, Toland argues that Bailey has

not “set forth evidence of an objectively serious medical

need.” See Farrow v. West, 320 F.3d 1235. 1243 (11th Cir.

2003). On the other hand, Toland argues, defendants have

offered competent medical testimony by a board-certified

gynecologist (Dr. Sharma) that Bailey was most likely never

necessity for a doctor’s attention.” Jd. at 1187 (quoting Laaman y.

Heigemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)).

™ Bailey alleges that Jailer Threat refused to provide Aleve for her

fever when she asked, Jailer Gentry refused to take her to the doctor when

She miscarried, jailers waited three to four days before taking her to the

doctor for the flu, and jailers waited three to four days before taking her to

the doctor for her injured knee. According to plaintiff, she only went to

jailers with these requests because Toland refused to see her.

35 , _

The first two reasons, Toland argues, are relevant to his qualified

immunity claim.

30a

pregnant, never miscarried, and experienced any subsequent

problems due to a pre-existing disease rather than what hap-

pened at Clay County Sail. According to Toland, Bailey has

not refuted Dr. Sharma’s opinions.

Addressing the second reason, Toland recounts facts con-

cerning medical attention Bailey received in jail.°° Toland

emphasizes that Sheriff Toland, sued in his individual capac-

ity, can be held liable: only for actions he took or policies he

instituted. See Hardin v. Hayes, 957 F.2d 845, 849 (11th Cir.

1992) (“Supervisory officials are not liable under section

1983 on the basis of respondeat superior or vicarious liabil-

ity.”) Rather, Toland argues, policymakers and supervisors

are liable only when “there is a causal connection between

actions of the supervising official and the alleged constitu-

tional deprivation.” See Belcher v. City of Foley, 30 F.3d

1390, 1396-97 (11th Cir. 1994) (citation omitted). Indisputa-

bly, Toland asserts, Toland had no interaction or personal

involvement with Bailey,’ and Bailey has not challenged

Toland’s policies. Furthermore, Toland argues, Bailey’s con-

tention that Toland can be personally liable for facts he did

not know but “should have known” contradicts the U.S. Su-

preme Court’s Farmer standard (requiring subjective knowl-

edge on the part of the official).

Even if Toland could be held liable on the medical care

issue, Toland contends, Bailey received care far exceeding

constitutional requirements. In support of this contention,

Toland repeats facts about Bailey’s in-take assessment and

° These facts are addressed earlier in this Memorandum Opinion.

” These facts are addressed earlier in this Memorandum Opinion.

* Toland testified as follows: Plaintiff's Complaint was his first indica-

tion of Bailey’s problems with jail conditions, Bailey neither wrote nor

spoke to him about jail conditions or denial of medical treatment while

she was in jail, and if any of the inmates had concerns about basic sanita-

tion or comfort, they weren't telling him about it.

3la

prescribed medication.” After Bailey’s alleged rape, Toland

notes, no evidence indicates a delay in getting her to a physi-

cian. Rather, Bailey has testified that Inspector Jean Dot

Alexander took her to the hospital right after their meeting

concerning the alleged rape. Toland also provides evidence

about Bailey’s multiple hospital and physician visits after the

alleged December 6, 1999 rape.” Incidentally, Toland con-

tends, while Bailey’s supplemental brief briefly touched upon

“back problems,” “hypertension,” “mental illness,” and “suici-

dal tendencies,” she has not developed arguments about these

conditions.*!

Finally, on the qualified immunity issue, Sheriff Toland

adopts and incorporates the citations contained in his previous

summary judgment submissions and argues that Bailey has

not cited legal authority to justify denying him qualified

immunity.”

CONCLUSIONS OF THE COURT

The court, after further consideration, concludes that there

is not sufficient evidence to establish liability of Clay County

for unconstitutional overcrowding or food service. There is

no substantial evidence that the plaintiff herself suffered any

injury as a result of either overcrowding or inadequate food

service. Plaintiff was incarcerated for slightly over one and

one-half months. Her primary complaint resulted from the

alleged rape and the other claims against Clay County appear

to be merely attempts to avoid abandonment of her un-

founded rape claim against Clay County as opposed to the

3 ° P . ae

” These facts are addressed earlier in this Memorandum Opinion.

* These facts are addressed earlier in this Memorandum Opinion.

. According to Toland, these additional conditions are not con-tained

in the Complaint, were not proven to be serious medical concerns, and

were never connected to Sheriff Toland.

“Toland relies generally upon Willingham vy. Loughnan, 321 F.3d

1299, 1301 (11th Cir. 2003).

32a

alleged culprit. All claims against Clay County will be dis-

missed, with prejudice.

For similar reasons, the overcrowding and food service

claims against Toland will be dismissed, wirh prejudice.

Further, the court concludes that the deliberate indifference to

medical needs claims against Toland are due to be dismissed

either because of lack of knowledge by Toland or because of

qualified immunity. In addition, there appears to be in-

sufficient evidence of serious medical needs other than as

related to the alleged rape for which plaintiff received prompt

attention. It appears that plaintiff has merely attempted to add

lagniappe to what may be a serious rape claim in order to aim

for target defendants.

This 15th day of September 2003.

/s/ Robert 8. Propst

ROBERT B. PROPST

Senior United States District Judge

33a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

[Filed Oct. 30, 2003]

CV 01-PT-3047-E

BILLIE RENEE BAILEY

Plaintiff,

1

CLAY COUNTY, ALABAMA; RALPH TOLAND

Defendants.

ORDER

This cause comes on to be heard on plaintiff's Motion to

Alter, Amend or Vacate Judgment filed on September 30,

2003. The motion is DENIED.

/s/ Robert B. Propst

ROBERT B. PROPST

SENIOR UNITED STATES DISTRICT JUDGE

34a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

[Filed Dec. 9, 2003]

CV 01-PT-3047-E

BILLY RENEE BAILEY

Plaintiff,

-

FRANK THREAT

Defendant.

FINAL JUDGMENT

In accordance with Special Jury Verdicts returned on

December 9, 2003, judgment is entered in favor of the

defendant Frank Threat. The plaintiff's claims against defen-

dant Frank Threat are DISMISSED WITH PREJUDICE.

Each party to bear own costs.

DONE and ORDERED this the 9th day of December,

2003.

/s/ Robert B. Propst

ROBERT B. PROPST

SENIOR UNITED STATES DISTRICT JUDGE

35a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

[Filed Dec. 22, 2003]

Civil Action No: CV-0] -PT-3047-E

BILLY RENEE BAILEY,

Plaintiff,

Vv.

FRANK THREAT,

Defendant.

PLAINTIFF’S RENEWED MOTION FOR

JUDGMENT AS A MATTER OF LAW. OR

IN THE ALTERNATIVE, MOTION TO ALTER,

AMEND OR VACATE JUDGMENT!

COMES NOW, the Plaintiff, Billie Renee Bailey, by and

through her attorneys, and submits this her renewed motion

for judgment as a matter of law, or in the alternative, motion

to alter, amend or vacate judgment, pursuant to Fed.R.Civ.P.

50 and 59. As grounds therefore the Plaintiff shows into the

Court as follows:

1. The Defendant, Frank Threats, was required under the

Due Process Clause to provide the basic necessities to the

Plaintiff while she was incarcerated in the Clay County Jail.

The Defendant was also to refrain from ac.ing with deliberate

' The original motion for judgment as a matter of law and the final

judgment entered December 9, 2003 are attached hereto.

CC

36a

indifference to the Plaintiff's health and safety. The undis-

puted evidence clearly established that the Defendant failed to

do so. Hope v. Pelzer, 536 U.S. 730, 739 (2002); Hudson v.

McMillion, 503 U.S. 1, 8 (1992).

2. The Defendant was required under the Due Process

Clause to provide reasonable protection to the Plaintiff while

she was incarcerated. The undisputed evidence clearly estab-

lishes that the Defendant failed to do so. Newman v. State of

Alabama, 583 F.2d 1320, 1331(Sth Cir.

Denied 1-8-04

RBPropst AL SDJ

Jury found consent.

37a

APPENDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed March 16, 2005]

Nos, 03-16171-AA & 04-10252-AA

BILLY RENEE BAILEY,

Plaintiff-Appellant,

versus

CLAY COUNTY, ALABAMA, et al.,

Defendants,

FRANK THREAT, Jailor of Clay County,

individually and in his official Capacity,

Defendant-Appellee.

On Appeal from the United States District Court for the

Northern District of Alabama

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion, 11th Cir., 19, F.2d_.

BEFORE: CARNES, HULL and COX, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Petition(s) for Rehearing En

Banc are DENIED.

ENTERED FOR THE COURT:

/s/_ E.R. Cox

UNITED STATES CIRCUIT JUDGE

38a

APPENDIX H

[AMENDMENT VIII]

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

[AMENDMENT XIV]

Section I.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. No state shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

39a

APPENDIX I

§ 11-12-15. Preferred claims and order of their priority;

payment of same.

(a) The following claims are declared to be preferred

claims against the county, and they shall be given priority in

the order named:

(1) Costs of heating the county jail, of supplying it

with wholesome water for drinking and bathing, of

keeping it in a cleanly condition and free from offensive

odors and of providing it with necessary water closets

and dry earth, beds, bedding and clothing; fuel; water:

light; janitor’s services of the courthouse and jail;

premiums for fire insurance on the public buildings of

the county; and premiums on surety bonds of public

officers where authorized by law to be paid by the

county.

§ 11-14-13. Construction and arrangement of county jail.

The county jail must be of sufficient size and strength to ,

contain and keep securely the prisoners which may be

confined therein and must contain at least two apartments,

properly ventilated so as-to secure the health of those

confined therein; one for men and one for women.

§ 14-6-1. Legal custody and charge of jails and prisoners;

appointment of jailer.

The sheriff has the legal custody and charge of the jail in

his county and all prisoners committed thereto, except in

cases otherwise provided by law, and may appoint a jailer for

whose acts he is civilly responsible.

§ 14-6-7. Removal of prisoners—When made to nearest

sufficient jail.

If the jail of any county is destroyed, or becomes in-

sufficient or unsafe, or an epidemic dangerous to life is

40a

prevalent in the vicinity or there be danger of rescue or

lawless violence to any prisoner, any circuit court judge may,

on the application of the sheriff and proof of the fact, direct

the removal of any prisoner or prisoners to the nearest

sufficient jail in any other county; and it is the duty of such

judge, in such case, to make an endorsement on the order or

process of commitment, stating the reason why such removal

is ordered, and to date and sign such endorsement.

§ 14-6-41. Supervision.

(b) The county commission of each county shall supervise

the feeding of all prisoners in the county jails over which it

has jurisdiction.

§ 14-6-95. Jails, etc., to be kept clean, etc.

The sheriff, chief of police, town marshal or other keepers

of jails or prisons or the keeper or manager of the almshouse

shall keep their respective jails, prisons and almshouses in a

clean and sanitary condition, shall use every means and effort

to prevent spitting on the floors and the walls of the jails,

prisons and almshouses and shall exercise every precaution to

prevent the spread of disease among the inmates.

§ 14-6-97. Duty of sheriff, etc., as to food.

The sheriff, the chief of police or town marshal or the

keeper or manager of the almshouse shall see thatthe food for

the inmates of the jail, prison and almshouse, respectively, is

nutritious, clean, wholesome and of sufficient quantity and

variety and shall have all kitchens where food is prepared for

the inmates adequately screened against flies.

§ 22-3-5. County health officers—Duties generally.

It shall be the duty of the county health officer:

(3) To visit all jails, whether county or municipal, and

to make careful investigation as respects the drinking

water, food, clothing and bedding supplied to prisoners

4la

and as to the ventilation, air space, heating and bathing

facilities, drainage, etc., of these institutions; and, when

any of said supplies are found to be inadequate in

quantity or deficient in quality or any of said conditions

insanitary, the county health officer shall make in

writing a report thereof to the judge of probate and the

county commission or the proper municipal authorities,

as the case may be; whereupon, said judge of probate

and county commission, or-the proper municipal

authorities, as the case may be, shall carry out whatever

recommendations are made by the county health officer,

and said health officer shall forward duplicates of his

reports to the state health officer. In the event of failure

of compliance with said recommendations, it shall be the

duty of the proper state authorities to take appropriate

action.

He shall visit, as the need dictates, all places where

the public gathers and the county courthouse and any

other public building belonging to the county; should he

find insanitary conditions existing, he shall report the

same to the county commission, and the county com-

mission shall remedy the insanitary conditions in

accordance with the recommendations of the county

health officer

42a

APPENDIX J

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof 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, except that in any action

brought against a judicial officer for an act or omission taken

in such officer’s judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

x Bs ee!

No. 04-1688 AUG 17 206

rerenreremarcnicememacmRE

3n The

Supreme Court of the United States

¢

BILLY RENEE BAILEY,

Petitioner,

v.

CLAY COUNTY, ALABAMA,

SHERIFF RALPH TOLAND and

FRANK THREATS,

Respondents.

,

vw

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

4

BRIEF IN OPPOSITION

KENDRICK E. WEBB* Kristi A. DowDY

BART HARMON Attorney for Frank Threats

Attorneys for Clay County, | MCDONALD & Dowpby

Alabama, and 1005 Montgomery Highway

Ralph Toland Birmingham, Alabama 35216

WEBB & ELEY, P.-C. (205) 824-0507

7475 Halcyon Pointe Road

(36117)

P. O. Box 240909

Montgomery, Alabama 36124

(334) 262-1850

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

Il.

QUESTIONS PRESENTED

WHETHER PETITIONER'S CONTENTION THAT

ALL SEXUAL INTERCOURSE BETWEEN A JAILER

AND AN INMATE VIOLATES THE FOURTEENTH

AMENDMENT (DESPITE EVIDENCE WHICH THE

JURY APPARENTLY CREDITED THAT THE IN-

MATE INITIATED THE CONTACT AND PLANNED

TO USE THE CONTACT AS A BASIS TO MANIPU-

LATE THE JAILER) PRESENTS A BASIS FOR

GRANTING THE WRIT AND TO OVERTURN A

JURY VERDICT IN FAVOR OF RESPONDENT

THREATS?

WHETHER PETITIONER’S CONTENTION THAT

THE DISTRICT COURT ERRONEOUSLY CON-

CLUDED THAT SHE HAD FAILED TO CREATE A

GENUINE ISSUE OF FACT AS TO HER JAIL CON-

DITION CLAIMS AGAINST RESPONDENTS CLAY

COUNTY AND RALPH TOLAND PRESENTS A BA-

SIS FOR GRANTING THE WRIT?

ee

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................:0csseeeeseeseceees i

TABLE OF COTE eiccoesisciesk:€scevorestavcaisveces Ta ii

Rael ale SIE A PAAR Cem taeh cis iciconsccdeodatunesavechiadeisces iv

STATEMENT OF THE CASE ....00.............cccceeseeeeeeees 1

REASONS FOR DENYING THE WRIT...................... 14

I. THE PETITIONER HAS NOT PRESENTED

ANY BASIS FOR THE GRANTING OF A

WRIT OF CERTIORARI WITH RESPECT

TO THE JURY VERDICT IN FAVOR OF

RESPONDENT FRANK THREATGB................ 15

A. Bailey Failed To Properly Preserve For

Appeal Her Objection To The Jury In-

WEI sds is osteo ceninataiescatnachsnaasesvednsees 15

B. Bailey Was Not Entitled To A “Special

Relationship”/*Position Of Authority”

oe Rep oe eaten pe py aetna Pee eters 17

II. THE PETITIONER HAS NOT PRESENTED

ANY BASIS FOR THE GRANTING OF A WRIT

OF CERTIORARI WITH RESPECT TO THE

SUMMARY JUDGMENT GRANTED TO RE-

SPONDENTS CLAY COUNTY AND RALPH

SARIS si spits Fo nsuintaeeeatiin jinsiseacsueesebsnsaectesenses 20

A. The District Court Properly Granted

Sheriff Toland Summary Judgment As To

All Claims Made By Petitioner - Having

Found Each Claim To Be Factually And

Legally Insufficient. ..................ss.cccseseseees 20

TABLE OF CONTENTS ~- Continued

Page

B. The District Court Properly Granted

Clay County Summary Judgment As To

All Claims Made By Petitioner — Having

Found Each Claim To Be Factually And

Legaily Insufficient. «5.2... <<.ciccsascisiss cases acces 25

OCORG LORIN iain nmiiass Hieabinec ee eialorass 30

lV

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635, 107 S. Ct.

SOD E LAGE) wisckscssévicncccdskavitngiinscbek ca die deemas aaa 25

Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970

COI io nec eee ee 24, 26, 29

Farrow v. West, 320 F.3d 1235 (11th Cir. 2003) ................ 23

Fisher v. Goord, 981 F. Supp. 140 (W.D. NY 1997)........... 19

Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997)............00..... 18

French v. Owens, 777 F.2d 1250 (7th Cir. 1985)............... 22

Gaudreault v. Municipality of Salem, 923 F.2d 203

(Rak Sa FO sei crn cicocces eg Soe eee 23

Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir.

SOD ii co a enabceesgsbhevnisincncssonibianLsaaaieasaaaeete 22, 25, 26, 27

Hardin v. Hayes, 957 F.2d 845 (11th Cir. 1992)................ 24

Heath v. Suzuki Motor Corp., 126 F.3d 1391 (11th

TSR |} Reape ene Clg RT ONE Goer ON hore tem ho CEE, 16, 17

Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2179 (1996)....... 21

Marsh v. Butler County, 268 F.3d 1014 (11th Cir.

(LS FE SOMO DM ME RUESM NVR Se T TY BNO eT Fe YS 28

McClow v. Warrior & Gulf Nav. Co., 842 F.2d 1250

CHARI Cite Tosi sas ooiccgscciicincccscaccee ena 17

Osterneck v. E.T; Barwick Indus., Inc., 825 F.2d

PER CRIS Ge DTD iv svicvis canscasdacdstacasaneacetcdeeaeaneomeatens 16

Parker v. Williams, 862 F.2d 1471 (11th Cir. 1989).......... 17

Petty v. Venus Correctional Unit, 2001 WL 360868,

PS COC, TR. UR DD iia sveancnnndccccuaschitavcctaeci ue tedkomaaene 19

v

TABLE OF AUTHORITIES -— Continued

Page

Provost v. City of Newburgh, 262 F.3d 146 (2nd Cir.

2 e RERA RMR 2 TS See Ree P RE OV RO MC 24

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980)................ 22

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

ce a eo acs sisadpdneobeines 22, 25, 27

Rogers v. City of Little Rock, Ark., 152 F.3d 790 (8th

oR «GUESS INE RE Dat ol ip Ree PS te ARERR rae 18

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151

| 4 GREER RAR GARR AC EEE eae 2 SN ae erated 24

Steele v. Shah, 87 F.3d 1266 (11th Cir. 1996) ............. 24, 26

Stockman v. Lowndes County, Miss., 2000 WL

33907696, *4 (N.D. Miss. 2000)..............ccccccsssssssssssseeees 19

Turquitt v. Jefferson County, Ala., 137 F.3d 1285

ne me a 17, 18

Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321

2 eG RSE ee EA a Re OS Eo 22, 25

1

STATEMENT OF THE CASE

Course of Proceedings Below

Respondents have no objection to Petitioner’s “Course

of Proceedings Below” found on pages 3-4 of her Petition.

Statement of Facts

Petitioner Billy Renee Bailey was incarcerated in the

Clay County Jail several times during the latter part of

1999. The claims made the basis of her Complaint in the

instant case, however, originate from her incarceration in

the Clay County Jail on November 30, 1999 on charges of

reckless endangerment and menacing,\as a result of

shooting a rifle at her husband. See R1-86-Ex. 15. Bailey

was released on January 18, 2000 after pleading guilty to

those charges.

I. FACTS WITH RESPECT TO ALLEGATIONS

AGAINST RESPONDENT FRANK THREATS

(ALLEGED SEXUAL ASSAULT).

Threats began work at the Clay County Jail in Sep-

tember 1998. R3-134-31. In December 1999, he worked the

evening shift from 8 p.m. until 8 a.m. four nights a week.

He was off the other three days of the week. R3-134-32, 37.

He first met Bailey during the second time she was incar-

cerated in the jail. R3-134-50. During the nights of De-

cember 2nd, 3rd, and 4th, Threats had short conversations

with Bailey wherein she asked him questions about his

family, his military career, and jailer schedules. R3-134-36.

During those conversations, Bailey asked him if he would

like to be with her and if he would “f__ _” her. R3-134-34,

50. Each time prior to December 5, 1999, Threats told

Pailey no. R3-134-38, 50. In addition to the sexually

explicit comments Bailey made to Threats, she also ex-

posed herself to him through a tray hole in her cell door.

R3-134-38, 39, 50, 51.

2

On the night of December 5, 1999, Threats came to

work at 8 p.m. R3-134-32, 39. While he was distributing

the medications to the inmates, Bailey was calling out to

him saying that she wanted him and that she wanted to

“f _ _” him. He told her he would have to think about it.

Later, after giving out all the medications, Threats got the

key to Bailey's cell and unlocked her cell door Bailey

mouthed the word “where” and he pointed toward the

office. Bailey and Threats then proceeded to go across the

hall into the bathroom in the office where they had sex.

R3-134-41 to 43. Afterward, Threats walked with Bailey

back to her cell and shut her door. Bailey then turned and

looked at Threats, pointed her finger at him and said, “see

this, this is you and I. I’m going to own you.” R3-134-43,

54. This entire episode lasted approximately eight to ten

minutes. R3-134-53.

Threats testified that Bailey came out of her cell of

her own free will. She never told him she did not want to

come out. She never told him she did not want to have sex

with him. She never told him she had changed her mind.

According to Threats, Bailey was alert during this whole

episode. R3-134-53 to 54.

Bailey’s cell was located downstairs in the jail ap-

proximately three feet away from the office door and about

three and one-half feet from the entrance door to the jail.

R3-134-26 to 27. The jail was small, housing only 26

inmates, including males and females. R3-134-27. The

trusties’ cells were also located on the first floor of the jail.

The trusties have privileges that allow them to go in and

out of their cells provided they stay in the building. R3-

134-28 to 29. The jail is a block building so everything

echoes throughout the building. R3-134-28.

Threats testified that he knew he was to have no

physical contact with the inmates. R3-134-33. He knew

that if he had sex with Bailey and someone found out, he

would lose his job. R3-134-55. When he was first ques-

tioned as to whether he had sex with Bailey, Threats

3

denied it. R3-134-25, 45 to 49. Later, he admitted having

had sex with her and was terminated. R3-134-25, 26, 47,

55. He testified that he initially denied it because he was

embarrassed and did not want to lose his wife or ruin his

military career. R3-134-45, 47, 48, 55. Threats knew what

he had done was wrong. R3-134-45.

On the afternoon of December 6, 1999, Deputy Jean

Alexander (now the Sheriff of Clay County), was called to

the jail to talk to Bailey. R3-134-21. Bailey initially re-

ported to Deputy Alexander that “he is in me” and that she

“smelled him.” R3-134-21, 22. Upon further investigation

by Deputy Alexander, Bailey stated that she felt pressure

in her vaginal area and that she heard her cell door open

during the night. R3-134-30. Deputy Alexander then took

Bailey to the Clay County Emergency Room where a rape

kit was done. R3-134-21, 22.

Bailey testified at trial that she did not recall any of

the events on the night of December 5, 1999, other than

being given some tea with or after she was given her

medication. R3-134-88, 104. She testified that on Decem-

ber 6th, she woke up in the afternoon and could tell that

she had been penetrated. R3-134-88.

Leonard Riley was in the Clay County Jail in Decem-

ber 1999, when Bailey was incarcerated. At that time, he

was on work release. R3-134-136. Riley testified that while

incarcerated, he had conversations with Bailey wherein

she told him that she had sued another law enforcement

agency and had received money as a result. R3-134-137 to

139. Bailey told Riley that she had a plan in effect to try

and get money out of Clay County by “throwing herself at”

(seducing) one of the jailers. R3-134-139 to 140, 145. She

told him she was going to “bring the place down” (referring

to the Clay County Jail). R3-134-144.

On the morning Riley testified at trial, he had a

conversation with Bailey prior to going into the court-

house. At that time, Bailey told him she was going to bring

+

this place (Clay County Jail) down, just like she said she

was going to do. R3-134-140.

The jury was given the following special interrogato-

ries to answer following the trial: Question 1 — Do you find

that the Plaintiff Bailey proved by a preponderance of the

evidence that she is entitled to recover on her federal

claim that the Defendant Threats engaged in sexual

intercourse with her by force, intimidation, or while she

was not consciously aware of his conduct and without her

consent? The jury answered the question no. R3-134-182

to 183. Question 2 — Do you find that the Plaintiff Bailey

proved by a preponderance of the evidence that she is

entitled to recover on her state law claim that Defendant

Threats committed an assault and battery on her by

touching her person in rudeness or anger or in a hostile

manner by engaging in sexual intercourse with her,

without her consent? The jury also answered no to this

question. R3-134-183. A verdict was then entered in favor

of Threats. R3-134-183.

At the outset of the trial, Petitioner’s counsel submit-

ted suggested jury charges as ordered by the Court. None

of these suggested charges discussed how consensual sex

between a jailer and inmate has constitutional implica-

tions based on the jailer’s position of authority or special

relationship with the inmate. Further, Bailey's counsel did

not clearly state her request that such a charge be given

during the charge conference held before the district court

and outside the presence of the jury. R3-134-120 to 133.

Il. FACTS RELEVANT TO RESPONDENTS CLAY

COUNTY AND RALPH TOLAND.

Clay County Jail Facility

The Clay County Jail, located in Ashland, Alabama,

was constructed in 1948. Extensive renovations were

conducted on the jail in 1986, including the addition of a

5

new kitchen and food storage area, additional jail space,

and a trusty dormitory. Additional renovations were

made between 1991 and 1995, during Sheriff Toland’s

administration, including the refitting of the cell locking

mechanisms by Federal Corrections Institute, the addi-

tion of a bathroom for use by trusties, and the addition of

a storage facility for the storage of uniforms, personal

property, work release clothing, files, and other paper-

work. Throughout the years, general maintenance, such as

painting, replacement of fixtures, and purchasing new

mattresses and linens, has been done on a continual basis.

In fact, the entire 5-‘l, including showers, was painted

about two times each year to keep the facility clean and

maintained. See R1-86-Ex. 1, J 17 and Ex. 3, 7 24.

The Petitioner was housed in Cell #1, a large cell used

to house female inmates in the downstairs portion of the

jail. Cell #I has two bunk beds, a shower, a toilet, and a

sink. There is a catwalk behind the Cell and a large

window on the other side of the catwalk. See R1-86-Ex. 3,

| 23. Also located downstairs are Cells #2 and #3; a Hold-

ing Cell, an administrative cell used for high security

inmates and potentially suicidal inmates (including

intoxicated inmates); the trusty dormitory and bathroom;

and the kitchen.

Jail Administration and Policies and Procedures

Sheriff Toland had no personal participation in the

day-to-day operations or activities of the Clay County Jail.

See R1-86-Ex. 1, | 15. Rather, Sheriff Toland appointed a

Jail Administrator, Jim Studdard, to oversee the daily

functioning and operation of the jail facility. Id. As Jail

Administrator, it was Studdard’s responsibility to oversee

and conduct the day-to-day operation of the jail. See R1-

86-Ex. 3, J 4.

At the time Jim Studdard became Jail Administrator,

there was in place a Standard Operating Procedure, which

6

was given to all jailers for their review. See R1-86-Ex. 3,

{ 3 and Ex. 11. A copy of the Standard Operating Proce-

dure was kept in the jail at all times. Jd. The policy and

procedure was approved by Sheriff Toland. Id.

Sheriff Toland was not aware of Bailey’s complaints

about conditions at the jail until he received a copy of the

Complaint. Of course, he was informed about the alleged

rape soon after the incident was supposed to have oc-

curred. R1-86-Ex. 1, J 2. Toland never received any com-

plaint from Bailey, either written or verbal, concerning

any condition within the jail that was causing her to suffer

in any way or causing any problems. R1-86-Ex. 1, 7 3.

According to Bailey, she never talked to Toland. See R1-86-

Ex. 24, pp. 54, 152-53. If any of the inmates had concerns

about basic sanitation or comfort, they were not telling

him about it. R1-86-Ex. 1, { 3. Toland did not receive any

requests, either written or verbal, complaints or griev-

ances concerning any alleged denial of medical treatment

for Bailey. As far as Sheriff Toland knew, Bailey was

getting the treatment she needed. Jd.

Clay County Commission and Efforts to Build New

Jail

Lou Ann Hanners has served as the county adminis-

trator for Clay County, Alabama since April 1997. In her

capacity as county administrator, she is familiar with the

budget for both the Clay County Sheriff’s Department and

the Clay County Jail. The budgets for the Clay County Jail

have increased every year since Ms. Hanners has been

county administrator. If ever the Sheriff’s Department

exceeded its budget for a particular line item, such as

cleaning supplies for the jail or medical care for inmates,

those line items would be adjusted upwards to meet the

need. See R1-86-Ex. 4, 7 5.

The Commission, realizing its duty to “fund the [jail]

facility, build a new one or [renovate the] existing [jail],”