Filed: Apr. 15, 2011
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Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0237n.06 FILED No. 09-6100 Apr 15, 2011 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT MARY BRASWELL, as conservator of FRANK D. ) HORTON, individually, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE CORRECTIONS CORPORATION OF AMERICA, ) ) Defendant-Appellee. ) ) BEFORE: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges. ROGERS, Circ
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0237n.06 FILED No. 09-6100 Apr 15, 2011 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT MARY BRASWELL, as conservator of FRANK D. ) HORTON, individually, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE CORRECTIONS CORPORATION OF AMERICA, ) ) Defendant-Appellee. ) ) BEFORE: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges. ROGERS, Circu..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0237n.06
FILED
No. 09-6100
Apr 15, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MARY BRASWELL, as conservator of FRANK D. )
HORTON, individually, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
CORRECTIONS CORPORATION OF AMERICA, )
)
Defendant-Appellee. )
)
BEFORE: BATCHELDER, Chief Judge; KEITH and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Mary Braswell, the conservator of prisoner Frank D. Horton,
appeals a grant of summary judgment to Corrections Corporation of America (CCA) in this 42
U.S.C. § 1983 suit claiming that CCA violated Horton’s Eighth Amendment rights by, among other
things, not removing him from a squalid cell for nine months. Reversal is required because there
is a genuine issue of material fact as to (1) whether administrative remedies were available to
Horton, see 42 U.S.C. § 1997e(a), (2) whether Horton’s injuries met the “physical injury”
requirement of § 1997e(e), and (3) whether a CCA policy or custom caused the alleged Eighth
Amendment violations.
I
No. 09-6100
Braswell v. Corrections Corp. of Am.
Viewed in the light most favorable to Braswell, these are the essential facts. Horton was
previously confined at the Metro Davidson County Detention Facility, a prison operated by CCA
under a contract with the Metropolitan Government of Nashville and Davidson County, Tennessee.
When Horton arrived at the detention facility on December 9, 2005, he had a history of psychiatric
treatment and was considered a special needs inmate. Because of behavioral problems, he was
placed in the segregation unit, where he was isolated from most of the prison population.
Prior to May 2007, CCA personnel used force against Horton on several
occasions—sometimes to stop him from fighting with other inmates, sometime to extract him from
his cell. According to CCA incident reports, prison guards used pepper spray to separate Horton
from another inmate in January 2006, and again in February 2006. On both occasions, Horton
sustained minor injuries and was treated by CCA medical staff.
Sometime after April 2006, Horton began remaining in his cell for multiple days at a time.
Despite being given daily opportunities to shower and exercise—in accordance with CCA
policy—Horton refused to exit his cell for increasingly lengthy periods of time. On January 26,
2007, CCA employees were authorized to force Horton out of his cell so that he could take a shower
and receive a mental health evaluation. Horton initially refused verbal commands to submit to
restraints, but after inflammatory agents were released inside his cell, he complied and was taken to
the shower. His cell was then cleaned and decontaminated. It is not clear from the record how many
times this process was repeated prior to May 2007.
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After Assistant Warden Michael Corlew started work at the detention facility in May 2007,
however, CCA personnel intentionally stopped the practice of extracting Horton from his cell.
Corlew instructed the officers that the use of force would be reserved for emergencies only. CCA
maintained activity records for each prisoner, and prison guards would simply mark “refused” after
Horton declined daily opportunities to come out of his cell. At the same time, CCA personnel
refused to give Horton cleaning supplies because they were afraid of what he might do with them.
Patrick Perry, an officer at the detention facility from August 2006 to January 2008, began
to notice that something was wrong late in 2007. In January 2008, Perry attempted to communicate
with Horton, but Horton was speaking “gibberish.” Perry testified that Horton’s cell was filthy, that
there were several food trays on the floor and bacteria growing in the toilet, that Horton’s beard and
hair were “matted” and “out of control,” and that it appeared Horton had not washed himself or had
his cell cleaned for months.
Perry obtained Horton’s activity records and realized that Horton had not left his cell since
May 2007—a period of nine consecutive months. Perry took copies of those records, along with
photographs he had taken of Horton’s cell, to the detention facility’s quality assurance manager.
When nothing was done, Perry blew the whistle: he brought Horton’s records to the Davidson
County Health Department on January 31, 2008. Perry was fired that same day, and the Health
Department sent an employee to investigate Horton’s condition.
By court order, Horton was transferred out of CCA’s detention facility on April 11, 2008.
He received a mental health due process hearing on April 29, 2008, and the following day was
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transferred to the Lois DeBerry Special Needs Facility, where he was diagnosed with schizophrenia.
After he arrived at the special needs facility and began receiving mental health treatment, Horton’s
condition improved
Braswell filed her complaint on July 16, 2008, alleging that CCA violated Horton’s Eighth
Amendment rights by failing to provide him with mental health care, subjecting him to inhumane
conditions of confinement, and failing to protect him from other inmates and CCA employees.1
CCA moved to dismiss, arguing that Braswell had not exhausted available administrative remedies,
did not show that Horton sustained a physical injury, and could not maintain claims against CCA
under a theory of vicarious liability.
The district court converted CCA’s motion to dismiss into a motion for summary judgment
and ruled in favor of CCA. The court found that administrative remedies were unavailable after
Horton could no longer speak coherently, and that they remained unavailable after Horton was
transferred to the special needs facility because Horton was no longer in the custody of CCA or
subject to its grievance process. However, the court found that all of Braswell’s claims were barred
because she failed to make the required showing of physical injury. Finally, the district court noted
that Braswell had “articulate[d] evidence that could suggest a CCA policy regarding Plaintiff’s
Eighth Amendment claims,” but did not reach that issue. This appeal followed.
II
1
The complaint also asserted First Amendment claims alleging that CCA tampered with
Horton’s mail. Braswell does not appeal the district court’s grant of summary judgment in favor of
CCA on those claims.
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Three obstacles confront Braswell’s ability to advance Horton’s Eighth Amendment claims
in federal court. First, the PLRA requires a prisoner to exhaust “such administrative remedies as are
available” before filing suit under § 1983. 42 U.S.C. § 1997e(a). Second, the PLRA bars prisoner
suits “without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). And third, because
Braswell is suing CCA and not individual corrections officers, she must show that a CCA “policy
or custom” caused the alleged violation of Horton’s Eighth Amendment rights. See Monell v. City
of New York Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). At this stage of the proceeding,
Braswell has produced enough evidence to surmount all three obstacles.
A
As the district court found, there is a genuine factual dispute as to whether any administrative
remedies were “available” to Horton during his confinement at the CCA detention facility and after
his transfer to the special needs facility. Despite the existence of a grievance system at the detention
facility, the evidence raises a question about whether Horton was capable of availing himself of those
remedies given his mentally impaired condition.
Section 1997e(a) requires a prisoner to exhaust “such remedies as are available.” 42 U.S.C.
§ 1997e(a). The plain meaning of the term “available” is that a prisoner is required to exhaust only
those procedures that he is reasonably capable of exhausting. See Hoover v. West, 93 F. App’x 177,
181 (10th Cir. 2004) (citing Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.1998)). Section
1997e(a) is an affirmative defense. Jones v. Bock,
549 U.S. 199, 216 (2007). CCA must accordingly
demonstrate that its administrative remedies were “available” to Horton, meaning not only that
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Horton had access to CCA’s administrative grievance process in the segregation unit where he was
being held, but also that he was actually capable of filing such a grievance. See Brown v. Valoff,
422 F.3d 926, 936-37 (9th Cir. 2005).
Braswell has raised a genuine issue of material fact as to whether CCA has met that burden.
First, given the alleged deterioration of Horton’s mental state, there is some doubt that Horton even
knew that he needed mental health treatment—much less that he needed to communicate that need
to CCA personnel. Warden Brian Gardner testified that inmates in need of psychiatric care are not
always aware that they require specialized treatment. It is thus not clear that Horton was even aware
of his need for the mental health treatment he did not request, to say nothing of his ability to
understand the detention facility’s grievance process for requesting such treatment.
Second, there is substantial doubt as to whether Horton was mentally capable of filing a
grievance. “[O]ne’s personal inability to access the grievance system could render the system
unavailable.” Days v. Johnson, 322 F.3d 863, 867 (5th Cir. 2003). In Days, the prisoner argued that
his failure to file a grievance should be excused because he had suffered a broken right hand that
rendered him unable to fill out the prison’s grievance form.
Id. at 864. The Fifth Circuit agreed that
the prisoner’s failure to exhaust should be excused, at least where the prisoner’s subsequent attempt
to exhaust was rejected on timeliness grounds, recognizing that the exhaustion requirement may be
subject to equitable defenses.
Id. at 868; see also Pavey v. Conley,
544 F.3d 739, 740 (7th Cir.
2008). Likewise, the district court in Johnson-Ester v. Elyea, No. 07-CV-4190,
2009 WL 632250,
at *6 (N.D. Ill. Mar. 9, 2009), reasoned that a disabling mental illness may also render administrative
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remedies “unavailable,” such that efforts by family members were sufficient to meet the underlying
notice purpose of the PLRA. See Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
Third, even if Horton had been capable of filing a grievance, there is doubt as to whether
Horton sufficiently understood the detention facility’s grievance system or had access to the
necessary forms. To initiate CCA’s grievance procedure, an inmate must first fill out and submit
an “information request form” to request an informal discussion with CCA personnel. No CCA
official offered to give Horton a request form, even though at least one person was aware that
Horton’s mental condition was deteriorating as early as July 2007. CCA argues that a request form
would have been given to Horton had he asked for one. Yet according to Perry, the only way Horton
would have known that he needed to fill out a request form would be from watching other inmates
go through the process, which may have been impossible for a segregated prisoner to observe.
To compound these difficulties, Perry testified that there would often be no request forms
available in the segregation unit. Short of “beat[ing] on the door” and “maybe [getting] the right
person now and then,” it is not clear that Horton would have been able to receive the request form
necessary to initiate a grievance in a timely manner. A prisoner may lack available remedies when
prison officials deny him the necessary grievance forms or fail to provide access to grievance forms.
Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). Even if Horton had been able to communicate
his needs informally to CCA personnel, the prison’s grievance policy would then have required him
to file a formal grievance by placing a grievance form in the “grievance mail box.” But Horton
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would have been unable to do this, because he refused to leave his cell and CCA personnel did not
forcibly extract him for nine months.
Finally, as the district court found, there is also doubt as to whether Horton remained subject
to CCA’s grievance system once he was transferred to the special needs facility. CCA does not
allege that its grievance process was available to Horton at the time Braswell filed her complaint,
while Horton was being treated in the special needs facility. By its own terms, the CCA Grievance
Policy applies only to “inmates/residents” of a CCA facility—not former prisoners who are no longer
in CCA custody. The district court therefore correctly determined that these remedies remained
unavailable to Horton after his transfer to the special needs facility. See Bradley v. Washington, 441
F. Supp. 2d 97, 102-03 (D.D.C. 2006).
For all of these reasons, the existing record does not permit a conclusion that the remedies
Horton failed to exhaust were available to him for purposes of § 1997e(a). As the district court
found, there is a material factual dispute as to whether CCA’s grievance process was available to
Horton during his confinement at the detention facility and after his transfer to the special needs
facility.
B
Contrary to the district court’s finding, however, the existing record does not support a
conclusion that the physical injuries allegedly sustained by Horton were de minimis. See Flanory
v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010). The PLRA bars prisoner suits “for mental or emotional
injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
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There is no statutory definition of “physical injury” as used in § 1997e(e). However, we have
indicated that while the requisite physical injury need not be significant, it must be more than de
minimis. Flanory, 604 F.3d at 254.
Taking the facts in the light most favorable to Braswell, Horton sustained a number of
nontrivial physical injuries as a result of CCA’s failure to forcibly remove him from his cell.
According to Perry’s testimony, Horton was left in a disgustingly unsanitary cell for nine consecutive
months, without a shower or an opportunity to exercise. Perry testified that the cell was filthy, that
there was mold growing in the toilet, that the cell floor was littered with food trays, and that the
window in Horton’s cell was covered, blocking out all natural sunlight.
The physical injuries Braswell alleges are similar in kind and degree to other injuries that
have been found to violate a prisoner’s Eighth Amendment rights—and a fortiori to satisfy the
PLRA’s “more than de minimis” physical injury requirement. For example, this court has said that
claims of excessive cold or dampness in a prison constitute Eighth Amendment violations, without
even addressing whether such claims rise above the PLRA’s de minimis standard. See Spencer v.
Bouchard, 449 F.3d 721, 728 (6th Cir. 2006); Franklin v. Franklin,
215 F.3d 1326, at *4 (6th Cir.
2000) (unpublished table decision). Likewise, a denial of exercise for an extended period of time
has been held to constitute more than a de minimis physical injury. Williams v. Goord,
111 F. Supp.
2d 280, 291 (S.D.N.Y. 2008). Consistent with these cases, a claim that a prisoner has languished
in a filthy and unsanitary cell for nine consecutive months asserts more than a de minimis physical
injury.
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The PLRA’s physical injury requirement weeds out frivolous claims where only emotional
injuries are alleged. E.g., Cox v. Malone, 199 F. Supp. 2d 135, 140 (S.D.N.Y. 2002). At this stage
of the case, Braswell has cleared that hurdle. There is a material factual dispute as to whether the
allegedly inhumane conditions of Horton’s confinement exceed the PLRA’s de minimis threshold
for legitimate Eighth Amendment claims.
C
Finally, there is a genuine issue of material fact as to whether a CCA policy or custom was
responsible for the alleged violation of Horton’s Eighth Amendment rights. The district court did
not reach this issue because it dismissed the suit in part for failure to exhaust administrative remedies
and in part for failure to show a physical injury. The court noted, however, that Braswell “articulates
evidence that could suggest a CCA policy regarding Plaintiff’s Eighth Amendment claims.”
This appears correct. A private corporation that performs the traditional state function of
operating a prison acts under color of state law for purposes of § 1983. Street v. Corr. Corp. of Am.,
102 F.3d 810, 814 (6th Cir.1996). However, CCA cannot be held liable under a theory of respondeat
superior. See
Monell, 436 U.S. at 691-92. To prevail in a § 1983 action against CCA, Braswell must
show that a policy or well-settled custom of the company was the “moving force” behind the alleged
deprivation of Horton’s rights. See Miller v. Sandilac,
606 F.3d 240, 254-55 (6th Cir. 2010). For
purposes of withstanding a motion for summary judgment, Braswell had made such a showing.
Braswell presented testimony from which a jury could infer that CCA had a policy or custom
of not using force against prisoners, and that this policy or custom caused Horton to be left in his cell
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for nine months. First, there was evidence that CCA had a policy or custom of limiting uses of force
to emergencies only. Warden Brian Gardner testified that CCA policy was to use the minimum
amount of force necessary to resolve inmate situations. Gardner testified that CCA maintained
records of each use of force incident, that officers had to forward incident reports to CCA’s corporate
office, and that use-of-force incidents could be used to determine annual bonuses and pay raises for
CCA employees. Viewing the evidence in the light most favorable to Braswell, CCA corrections
officers thus had both a carrot and a stick—an incentive to minimize uses of force, and a corporate
policy requiring them to do so.
Because of this policy, inmates that needed to be restrained and forcibly medicated were left
untreated for excessive periods of time. Horton was not the only inmate affected by this policy.
Perry testified that one inmate would run from the back of his cell to the front and repeatedly bang
his head against the door. The inmate would put his mattress against the door, flood his cell with
the toilet until the water was ankle deep, and throw feces against the wall. CCA personnel waited
nearly two weeks before giving him medication to calm him down. Another inmate exhibited
similar psychotic behavior, running into the cell door with his head. One night he attempted to
commit suicide by suffocating himself with a paper gown. Despite Perry’s anguished requests for
permission, CCA personnel refused to place the inmate in restraints and forcibly medicate him.
Instead, the inmate was transferred to a holding cell in the coldest area of the prison, where he
remained naked without a blanket for at least two weeks during the winter months of 2007.
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Second, there was evidence that this use-of-force policy caused the alleged deprivation of
Horton’s Eighth Amendment rights. To provide medical care to Horton, Braswell maintains, CCA
would have needed to use force to remove Horton from his cell or to restrain him to administer
medication. But any time an inmate had to be forcibly extracted from his cell, officers had to record
the incident as a “use of force,” and forward the incident report to the CCA corporate office. Perry
testified that prior to the arrival of Assistant Warden Corlew in May 2007, an inmate would not have
been allowed to refuse to come out of his cell for more than a few days at a time, because CCA’s
policy was that inmates were to regularly shower and clean their cells. Indeed, according to Perry,
before Corlew arrived at the detention facility, Horton had been forcibly removed from his cell
several times in order to have his cell cleaned, give him a haircut, and force him to take a shower.
All that changed, according to Perry, when Corlew started work in May 2007. Perry testified
that Corlew “put the word out that we would not be using force under any, under any—unless it was
an emergency,” and that any emergencies would be deemed the fault of CCA personnel. The need
to clean Horton’s cell and give him a shower was not an emergency that warranted a cell extraction.
CCA personnel simply marked “refused” after Horton declined daily opportunities to come out of
his cell—day after day, until the days turned into months. This is sufficient evidence from which
a jury could find that CCA’s newly instated policy of limited uses of force caused the alleged
deprivation of Horton’s Eighth Amendment rights.
Viewing the evidence in the light most favorable to Braswell, a jury could find that this
practice “reflect[s] a course of action deliberately chosen from among various alternatives.” Doe v.
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Claiborne Cnty., 103 F.3d 495, 508 (6th Cir. 1996) (citing City of Oklahoma v. Tuttle,
471 U.S. 808,
823 (1985)). After Corlew took over at the detention facility, CCA could have continued to forcibly
extract Horton from his cell in order to give him a shower and clean the cell. A jury could find that
CCA instead deliberately chose to reserve the use of force for “emergencies.”
Braswell has also presented evidence from which a jury could find that Corlew’s directives
had become a “deeply embedded traditional way[] of carrying out . . . policy.” Doe, 103 F.3d at 507.
Perry’s testimony suggests that CCA’s failure to forcibly treat prisoners was not limited to Horton’s
case. Given the examples of other inmates who were left untreated for excessive periods of time,
a jury could find that CCA’s practice of limiting the use of force was an ongoing and widespread
pattern throughout the detention facility. There is therefore a material factual dispute as to whether
a policy or custom of CCA caused the alleged deprivation of Horton’s Eighth Amendment rights.
D
It may be that further development of the record will indicate that administrative remedies
were available to Horton, or that the physical injuries he sustained were de minimis, or that the
alleged Eighth Amendment violations he endured were not caused by a CCA policy or custom. At
this stage of the case, however, it is sufficient that the evidence, viewed in the light most favorable
to Braswell, creates a material factual dispute on these points.
III
For these reasons, we reverse the district court’s grant of summary judgment.
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ALICE M. BATCHELDER, Chief Judge, dissenting. Frank Horton’s situation is a
sympathetic one. The neglect and lack of care he received while incarcerated is disturbing and
Braswell’s crusade to seek justice for him is compelling. However, I cannot ignore the fact that
Braswell has sued the wrong party. I respectfully dissent from the majority’s opinion.
It is well established that there is no respondeat superior liability under 42 U.S.C. § 1983.
Monell v. Dep’t of Soc. Servs. of City of New York , 436 U.S. 658, 691–92 (1978); Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999). A plaintiff must sue the actual individuals acting “under color
of [law]” responsible for “the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. 42 U.S.C. § 1983. However, a municipality (or in this
case, a private corporation acting under color of state law) can be held liable for its unconstitutional
policies or customs. Miller v. Sanilac Cnty.,
606 F.3d 240, 254–55 (6th Cir. 2010); Little v.
Corrections Corp. of Am., 103 F. App’x 898, 900 (6th Cir. 2004) (applying § 1983 to corporate
defendant acting under color of state law). “Policy” and “custom” are two distinct concepts. See
Ford v. Cnty. of Grand Traverse,
535 F.3d 483, 496 (6th Cir. 2008) (“[W]e note that § 1983
municipal-liability jurisprudence distinguishes between ‘policy’ and ‘custom.’”). A policy refers to
the “policies promulgated by the official vested with final policymaking authority for the
municipality.” Miller v. Calhoun Cnty.,
408 F.3d 803, 813 (6th Cir. 2005). A custom, on the other
hand, refers to an informal rule or way of doing things that “has not received formal approval
through . . . official decisionmaking channels.”
Monell, 436 U.S. at 690–91. The custom must “be
so permanent and well settled as to constitute a custom or usage with the force of law.”
Id. at 691
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(internal quotation marks and citation omitted). It must reflect a “[d]eeply embedded traditional
way[] of carrying out . . . policy.” Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996).
Most importantly, the proper policymaking officials must acknowledge and acquiesce in the
custom. See Paige v. Coyner, 614 F.3d 273, 284 (6th Cir. 2010) (“[P]olicy or custom does not have
to be written law; it can be created ‘by those whose edicts or acts may fairly be said to represent
official policy.’”); Spears v. Ruth,
589 F.3d 249, 256 (6th Cir. 2009) (“A municipality can be shown
to have a ‘custom’ causing constitutional violations, even if that custom was not formally sanctioned,
provided that the plaintiff offers proof of policymaking officials’ knowledge and acquiescence to the
established practice.”); Gregory v. City of Louisville,
444 F.3d 725, 752 (6th Cir. 2006) (“A city’s
custom or policy can be unconstitutional in two ways: 1) facially unconstitutional as written or
articulated, or 2) facially constitutional but consistently implemented to result in constitutional
violations with explicit or implicit ratification by city policymakers.” (emphasis added)); Memphis,
Tenn. Area Local, Am. Postal Workers Union, AFL-CIO v. City of Memphis,
361 F.3d 898, 902 (6th
Cir. 2004) (“A municipal ‘custom’ may be established by proof of the knowledge of policymaking
officials and their acquiescence in the established practice.”). While the language in these cases
appears to be permissive, sometimes stating that custom “may” or “can” be established in this way,
it is clear that this is a required element. See
Monell, 436 U.S. at 694 (“[I]t is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.”). In short, there must be at least knowledge and acquiescence by the
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official policymakers of the municipality or corporation. Requiring anything less would devolve into
establishment of respondeat superior liability.
Braswell’s case fails because she has done nothing to connect any possible unconstitutional
custom at the prison to the defendant Corrections Corporation of America (“CCA”). Braswell’s only
plausible argument for the existence of a custom is that Assistant Warden Corlew instituted an
informal policy that force would not be used except in emergency situations, and that the need to
extract Horton from his cell for cleaning, hygiene, and mental health evaluation did not constitute
an emergency situation. Officer Perry stated that “There was a constant cessation of the use of force
on all inmates after [Assistant] Warden Corlew got there [in May 2007].” R.23-7 (Perry Dep.) at
24. Perry explained, “Corlew put the word out that we would not be using force under any, under
any—unless it was an emergency, and then if the emergency occurred, it was still our fault and we’d
still catch an ass chewing from it.” Id. at 22. But when asked whether or not Corlew explicitly
stated any of that, Perry admitted, “He never put it out there like that, sir, but from the time he got
there it was understood. It was one of them [sic] things where you all have lost control over this
facility, I am here to put control back into this facility. All the cowboys, people that think they want
to do it their way, can hit the door.”
Id. Elsewhere, Perry testified that, “it was told to us that we
were the top facility in the . . . division for uses of force and that all uses of force was [sic] supposed
to come down. I mean, there was supposed to be no force used unless it was the absolute last resort.”
Id. at 6. Perry does not identify the source of this message.1 But Perry later states that Corlew talked
1
Normally, one would think of the goal of reducing uses of force in a prison as a laudable one.
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about the official, written CCA policy all the time, constantly emphasizing it, making sure it was
followed at all times. Id. at 49. The official, written policy explicitly authorized uses of force for
certain circumstances, while stating the steps that should be taken prior to using force to address a
situation. See infra. Following the written policy would not require a total cessation of the use of
force.
Even assuming that Corlew’s directions amounted to a new, deeply embedded,
unconstitutional way of doing things, what is ultimately fatal to Braswell’s claim is that she makes
no connection between Corlew’s supposed new custom and the corporate defendant, CCA. Braswell
does not submit any evidence that CCA had given official policymaking power to Corlew. She does
not allege that any other officials above Corlew even knew about his new custom.2 She does not
even allege that Warden Gardner, Corlew’s supervisor, knew about his supposedly unconstitutional
directions. And of course, a policymaker’s knowledge of Corlew’s custom is essential to his
acquiescence in it. The record sheds no light on the chain of command at CCA, how policies are
created, and who at CCA is authorized to make policy of this kind.3 See Feliciano v. City of
Cleveland, 988 F.2d 649, 655 (6th Cir. 1993) (holding that determination of official’s authority to
make policy is dependent on relevant state and local law). Absent this, Braswell’s claim is simply
one of respondeat superior liability.
2
W arden Gardner’s testimony did establish that he met regularly with CCA Vice President Steve Conry and
Managing Director Kevin Myers to discuss uses of force. R.23-8 (Gardner Dep.) at 22. This is unremarkable and should
probably be regular operating procedure in any prison system.
3
Perry did testify as to the chain of command within the prison, but that does nothing to establish who— if
anyone in the corporately run prison— had policymaking authority. R.23-7 (Perry Dep.) at 17.
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The majority errs by glossing over the requirement that any custom be traceable to a
policymaker. The words “knowledge” and “acquiescence” appear nowhere in the majority’s opinion.
The majority does not claim that those elements are not required; it points to no cases in which we
have ever held a municipal or corporate defendant liable for an unconstitutional custom under § 1983
without knowledge and acquiescence by a decisionmaking official. The majority simply ignores this
requirement. This record, even viewed in the light most favorable to Braswell—as is
required—contains no evidence to connect the alleged custom to any CCA policymaker.
The majority opinion appears to use “policy” and “custom” interchangeably, but those
concepts are distinct. See Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 496 (6th Cir. 2008). Here,
the majority can only be referring to custom, because as Perry testified repeatedly, CCA employees
were violating CCA policy when they failed to remove Horton from his cell for several months. See
R.23-7 (Perry Dep.) at 4, 5, 22, 55.
Furthermore, CCA’s official written policy on the use of force cannot possibly be
unconstitutional. That policy states: “Every effort will be made to prevent and defuse situations that
might require the use of force. If at all possible, non-forcible means, verbal intervention, negotiation,
show of force, etc., will be attempted before using force as a last resort.” See id. at 48. Elsewhere,
the policy states: “The amount and type of force used will be the minimum amount necessary to
control the situation [or] individual, and then only as a last resort consistent with the safety of the
public, staff and inmates.”
Id. This is exactly the policy one would ordinarily expect a prison to
have, and the lack of such a policy would undoubtedly open the door to even more prisoner
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Braswell v. Corrections Corp. of Am.
complaints. Also unremarkable are CCA’s requirement that all uses of force be reported to its
corporate office, and its practice of keeping records of these reports and reviewing the uses of force
with the Warden of each facility.4 R.23-8 (Gardner Dep.) at 19, 22. Prisoners routinely raise Eighth
Amendment claims about the use of excessive force, and these records are indispensable to the
operation of a prison facility. But the keeping of these records is hardly an indication that CCA had
a policy of using insufficient force in managing the prisoners in its charge.
In short, CCA has adopted a specific policy designed to reduce the chances that excessive
force will be used in its prisons. The majority would now use that policy against CCA by holding
that Assistant Warden Corlew’s failure to use force was the result of that policy, and that failure
caused Horton’s injury. While it is entirely possible that such an insufficient force claim could have
been brought on Horton’s behalf, it would have to have been brought against the proper defendants,
that is, against the individuals who inflicted the injury by failing to use the requisite force, or against
4
The majority emphasizes the allegation that CCA uses the number of use-of-force incidents to determine
bonuses and pay raises for CCA employees. Perry’s testimony is vague and equivocal on this matter:
There is a— I’m not in the corporate structure and I don’t understand how they do it, but there is
what’s called zero tolerances at the facility, escape being one, rape . . . , riots, . . . escapes, hostage
situations, and unnatural deaths, those things right there count against you majorly. They can be the
difference between getting an $80 bonus check and a $500 bonus check. If you have any of those
certain five things in a calendar year or a physical year, I don’t know how they do it, you are toast as
far as getting any kind of a substantial bonus. Other things come into play, you know, the budget, are
you able to, you know, stay below budget, are you able to stay below use of force, are you able to keep
certain inmates in school, you know, have them reporting to classes. And they track all of that and
they reward you when you, you know, monetarily, when you do a good job, when you run the facility
the way it need to be run.
R.23-7 (Perry Dep.) at 7. W hen asked later if the use of force to extract Horton from his cell would have affected
bonuses, Perry simply responded, “It affected everything.” Id. at 22. Gardner stated only that uses of force “could be”
a factor in determining his bonus. R.23-8 (Gardner Dep.) at 22–23.
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the policymakers who were responsible for the policy that resulted in that failure. But Braswell has
brought this action only against CCA, and has presented evidence only that Corlew’s failure to
require a necessary use of force against Horton was in violation of CCA’s policy that inmates be
forced to regularly shower and clean their cells.
No doubt prison policymaking officials are unavoidably positioned between Scylla and
Charybdis, that is, between permitting the use of too much force on the prisoners in their charge and
not requiring the use of enough force. But we ought not further narrow that strait by holding, as the
majority opinion does, that proof of an official policy of minimizing the use of force is enough to
demonstrate an official policy of deliberate failure to use appropriate force. To survive a motion for
summary judgment, Braswell was required to show evidence that Defendant CCA had a policy or
custom that led to Horton’s injuries. She has not provided that evidence. Because this issue is
dispositive, I would not address the exhaustion and physical injury issues.
This case is a difficult one, not because of the legal issues involved, but because of the stakes
for the Plaintiff. For whatever reason, Braswell decided to sue CCA instead of the individual
persons responsible for the alleged unconstitutional treatment of Horton, and this required her to
demonstrate an unconstitutional policy or custom on the part of CCA. Perry’s testimony that Corlew
instituted a new way of doing things gave Braswell a glimmer of hope, but she has ultimately failed
to carry the day, even on summary judgment, because she cannot attribute this custom to any
policymaker in CCA. This issue has been ignored or treated cursorily throughout the entire
litigation. The district court’s opinion merely stated, “Plaintiff articulates evidence that could
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suggest a CCA policy regarding Plaintiff’s Eighth Amendment claims.” R.48 (Dist. Ct. Order) at
22. Braswell’s opening brief on appeal made no mention of any alleged policy; her reply brief stated
that any discussion of “official policy or custom at this time is premature and irrelevant to Plaintiff’s
appeal,” Reply Br. at 14; and at oral argument, Braswell’s counsel addressed the issue only in the
final minutes. The majority opinion continues this pattern by failing even to discuss any connection
between the alleged custom and CCA. Our sympathy for Mr. Horton’s situation cannot permit us
to ignore the law. I would affirm the district court’s order granting summary judgment to the
defendant.
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