FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   June 7, 2011
                                                               Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                    Clerk of Court



    JOHNNY L. BASS,

             Plaintiff-Appellee,
                                                       No. 10-6215
    v.                                         (D.C. No. 5:06-CV-00397-M)
                                                      (W.D. Okla.)
    POTTAWATOMIE COUNTY
    PUBLIC SAFETY CENTER,

             Defendant-Appellant,

    and

    JERRY GOODWILL,

             Defendant.


                          ORDER AND JUDGMENT *


Before MATHESON, McKAY, and EBEL, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In this civil rights case brought under 42 U.S.C. § 1983, a jury in the

Western District of Oklahoma found that Defendant Pottawatomie County Public

Safety Center (the “Jail”) 1 violated Plaintiff Johnny L. Bass’s federal due process

rights as a pre-trial detainee by acting with deliberate indifference to his safety.

The jury reached its verdict after hearing evidence that Mr. Bass was brutally

assaulted by another detainee while awaiting booking and classification in an

intake holding cell following his arrest for driving under the influence of alcohol.

As compensation for the severe injuries he suffered in the assault, the jury

awarded Mr. Bass damages in the amount of $330,000, and the district court

subsequently entered a judgment in favor of Mr. Bass for that amount.

      The Jail now appeals, arguing that: (1) the jury’s verdict in favor of Officer

Goodwill is inconsistent with its verdict against the Jail; and (2) there was

insufficient evidence to impose municipal liability on the Jail under § 1983 for

maintaining a custom and/or policy that was deliberately indifferent to a

substantial risk of serious harm to intoxicated detainees such as Mr. Bass.

Exercising jurisdiction under 28 U.S.C. § 1291, we reject the Jail’s inconsistent

verdict claim and hold that there was sufficient evidence presented at trial to


1
       As the Jail explained in its opening brief, “[t]he Pottawatomie County
Public Safety Center . . . is a public trust organized under Title 60 of the
Oklahoma Statutes for the purposes of the operation and management of the jail
and detention facilities of Pottawatomie County, Oklahoma, and constitutes a
separate and distinct legal entity under Oklahoma law.” Aplt. Opening Br. at 8
n.2 (citing Okla. Stat. tit. 60, § 176.1(A)(2)).

                                          -2-
support the jury’s finding that the Jail’s policy and/or custom of commingling

unclassified, intoxicated detainees with unclassified, non-intoxicated detainees at

the discretion of the detention officer when the intake facility was overcrowded

was deliberately indifferent to a substantial risk of serious harm to such

intoxicated detainees. Accordingly, we affirm the district court’s judgment and

its subsequent order denying the Jail’s motion for judgment as a matter of law

under Fed. R. Civ. P. 50(b).

                                I. BACKGROUND

      Because the jury found only municipal liability under § 1983, we focus our

background discussion on the salient facts pertaining to the jury’s decision to

impose municipal liability on the Jail for following an unconstitutional policy

and/or custom in the way it detained intoxicated detainees. Because we are

concerned only with the question of municipal liability, many of the specific (and

hotly disputed) facts concerning the events that occurred in the Jail on the night

that Mr. Bass was assaulted are not directly relevant to the issues in this appeal.

We will therefore only discuss the specific circumstances surrounding the assault

to the extent necessary to resolve the question of municipal liability.

      For our purposes, the key evidence presented at trial was the following.

First, Mr. Bass was intoxicated when he arrived at the Jail, yet Defendant

Goodwill placed him in a holding cell with a non-intoxicated detainee. Given

these facts and the other evidence presented at trial, the jury could have

                                         -3-
concluded that the Jail violated the Oklahoma Department of Health’s Minimum

Jail Standards for housing intoxicated prisoners. See Okla. Admin. Code

§ 310:670-5-5(5) (“Prisoners who are intoxicated . . . shall be housed separately

from other prisoners until such time as the medical authority or jail administrator

determines their suitability for placement into general population or appropriate

housing.”). These standards were adopted by the State of Oklahoma as a safety

measure to protect intoxicated inmates due to their impaired and vulnerable

condition.

      Second, while the Jail generally tried to separately hold intoxicated

detainees in what was known as the “drunk pod” prior to their formal booking and

security classification, the Jail had an unwritten policy and/or custom of allowing

its detention officers to commingle unclassified, intoxicated detainees with

unclassified, non-intoxicated detainees in the drunk pod when the intake facility

was overcrowded. On the night that Mr. Bass was arrested, the intake facility was

crowded, so Officer Goodwill placed Jason Grass, a non-intoxicated detainee, in

the drunk pod together with four other detainees. Approximately forty minutes

later, Officer Goodwill also placed Mr. Bass in the drunk pod, and, within a

matter of minutes, Jason Grass viciously assaulted Mr. Bass, causing severe

injuries to his face in the form of multiple broken or shattered bones.

      Third, the Jail recognized that it was necessary from a safety perspective to

closely supervise detainees who were waiting to be booked and had not yet

                                         -4-
received a security classification. Specifically, the Jail had a written policy that

provided as follows: “To ensure the safety of arrestees, inmates, staff and

visitors, and to maintain the security of the booking area, the accepting officer

supervises persons held in the booking area at all times.” Aplt. App. at 237.

Further, the jury was informed by Mr. Bass’s expert witness that this “policy goes

on . . . to say . . . that the accepting officer closely watches all arrestees in the

booking area and holding cells for mood and behavior changes.” 

As the expert explained, such close supervision is necessary due to the likelihood

that detainees with different security classifications (i.e., minimum versus

maximum) will be mixed together in the booking area and holding cells during the

time they are waiting to be formally booked and classified. 

Consistent with this testimony, Rodney Bottoms, the executive director of the Jail

at the time of the events in question, confirmed the need to have policies and

procedures in place that provide for close supervision of detainees at the intake

facility. 

       To summarize, the State of Oklahoma’s policy against commingling

intoxicated and non-intoxicated detainees and the Jail’s written policy requiring

close supervision of unclassified detainees together demonstrate the existence of a

substantial risk of serious harm to intoxicated detainees who are commingled with

other detainees prior to classification. Mr. Bass was intoxicated when he arrived




                                            -5-
at the intake facility, he was placed together with an unclassified, non-intoxicated

detainee, and he was brutally assaulted by the other detainee.

                                   II. ANALYSIS

      A. Inconsistent Verdict Claim.

      Before addressing the evidentiary issues in this case, we must address the

Jail’s claim that the jury returned inconsistent verdicts. The Jail claims that,

because it cannot be held liable under § 1983 for Mr. Bass’s injuries under

principles of municipal liability unless Officer Goodwill violated Mr. Bass’s

constitutional rights, see Hinton v. City of Elwood, 

, 782 (10th Cir.

1993) (“[a] municipality may not be held liable where there was no underlying

constitutional violation by any of its officers”), the jury’s verdicts are inconsistent

since it returned a verdict in favor of Officer Goodwill, but still imposed

municipal liability on the Jail, see Aplt. Br. at 8 (“Because the verdict in favor of

Goodwill necessarily includes a finding that Goodwill’s actions were reasonable,

not deliberately indifferent to a substantial risk of serious harm to Bass, and

therefore were not unconstitutional, that verdict is inconsistent with the verdict

against the jail.”). As the district court pointed out in its order denying the Jail’s

motion for judgment as a matter of law, however, “this assertion ignores the

affirmative defense of qualified immunity which was asserted on behalf of

defendant Goodwill.” Aplt. App. at 451. It is also based on the faulty premise




                                          -6-
that the jury necessarily found that Officer Goodwill did not violate Mr. Bass’s

constitutional rights.

      To assert an inconsistent verdict claim, a party challenging a general jury

verdict must show that they objected to the verdict prior to the jury’s discharge.

See Oja v. Howmedica, Inc., 

, 790 (10th Cir. 1997). Because the Jail

failed to lodge such an objection to the jury’s general verdict in this case, the Jail

must show that the verdict is facially inconsistent such that entry of judgment

upon the verdict is plain error. 

whether the verdict is

inconsistent, we accept any reasonable explanation that reconciles the jury’s

verdict. See Domann v. Vigil, 

, 983 (10th Cir. 2001).

      We begin our analysis by noting that the Jail is not challenging any of the

jury instructions that were used by the district court at the trial of this case. We

also note that counsel for defendants submitted the two instructions regarding

Officer Goodwill’s affirmative defense of qualified immunity to the district court,

see R., Doc. 143 at 3-4, and the district court used the instructions that were

tendered by counsel for defendants when it instructed the jury about qualified

immunity, see Aplee. App. at 18-19. Further, the instructions tendered by counsel

for defendants permitted the jury to render the verdicts it returned, and the

verdicts are in no way facially inconsistent.

      In Instruction No. 15, the district court instructed the jury as follows with

regard to Mr. Bass’s failure to protect claim against Officer Goodwill:

                                          -7-
             In order to prove Plaintiff’s failure to protect claim against
       Defendant Jerry Goodwill, Plaintiff must demonstrate by the greater
       weight of the evidence the following:

             1. Defendant Jerry Goodwill knew or should have known that
       placing Plaintiff in the [drunk pod] with Jason Grass posed a
       substantial risk of serious harm to Plaintiff;

              2. Defendant Jerry Goodwill was deliberately indifferent to
       Plaintiff’s safety; and

             3. Defendant Jerry Goodwill’s conduct caused substantial
       harm to Plaintiff.

       The district court then gave two instructions regarding qualified immunity.

In Instruction No. 16, the court instructed the jury as follows:

              If you find that Plaintiff has proven his claim, you must then
       consider the affirmative defense of Defendant Jerry Goodwill that his
       conduct was objectively reasonable in light of legal rules clearly
       established at the time of the incident at issue and that he is therefore
       not liable. This defense is known as qualified immunity.

              The qualified immunity defense recognizes that it is sometimes
       difficult for an officer to determine how the relevant legal doctrine,
       here protection of a detainee, will apply to the factual situation the
       officer confronts. An officer might correctly perceive all of the
       relevant facts but have a mistaken understanding as to what the
       Constitution requires as protection of detainees in those
       circumstances. If the officer’s mistake as to what the law requires is
       reasonable, however, the officer is entitled to the qualified immunity
       defense.

In Instruction No. 17, the court then added the following:

              You are instructed that Defendant Jerry Goodwill cannot be
       held liable to Plaintiff in the event that you determine he is entitled
       to qualified immunity for his actions. If you find, after considering

                                          -8-
       all the evidence before you, that the actions of defendant Jerry
       Goodwill were such that a reasonable person would have believed
       them to be lawful and not violative of some established statutory or
       constitutional right, which a reasonable person would have known,
       Defendant Jerry Goodwill is entitled to qualified immunity.

       These instructions clearly contemplated that the jury could find:

(1) that Officer Goodwill was deliberately indifferent to Mr. Bass’s safety and

therefore violated Mr. Bass’s constitutional rights; but (2) that Officer Bass was

not liable to Mr. Bass for the violation because he made a reasonable mistake as

to what the law required in terms of protecting Mr. Bass from other detainees. As

the introductory sentence in Instruction No. 16 stated, “[i]f you find that Plaintiff

has proven his claim, you must then consider the affirmative defense of

Defendant Jerry Goodwill that his conduct was objectively reasonable in light of

legal rules clearly established at the time of the incident and that he is therefore

not liable.” 

(emphasis added). Accordingly, there is a reasonable

explanation that reconciles the jury’s verdicts, and the explanation is that the jury

found that Officer Goodwill violated Mr. Bass’s constitutional rights, as

necessary to support its verdict against the Jail under principles of municipal

liability, but the jury did not impose liability against Officer Goodwill because it

found that he nonetheless acted reasonably and was therefore entitled to qualified

immunity.




                                          -9-
      The Jail’s facially appealing response to this explanation is that

      the jury could not have found that Goodwill both violated Bass’s
      constitutional rights and that he acted ‘objectively reasonably’ . . .
      [because] a jail employee who knowingly and recklessly disregards a
      substantial risk of serious harm to an inmate would, by definition, be
      acting in an objectively unreasonable manner which would preclude a
      qualified immunity defense.

Aplt. Opening Br. at 11. But this argument fails for two reasons. First, if correct,

this argument means that the jury should not have been instructed on qualified

immunity in this case, and the Jail has never made such an argument either below

or before this court. Second, it ignores the leading Supreme Court case law in

this area which establishes that the reasonableness inquiry for purposes of the

affirmative defense of qualified immunity is separate and distinct from the

question of whether a government official had the mens rea required for the

underlying constitutional violation. See Saucier v. Katz, 

, 203-06

(2001) (excessive force claim), overruled in part on other grounds by Pearson v.

Callahan, 

, 818 (2009); Anderson v. Creighton, 

, 643

(1987) (unlawful search claim).

      In sum, because the jury was properly instructed that it could not impose

liability on Officer Goodwill if he acted reasonably in the qualified immunity

sense, even if it also found that he violated Mr. Bass’s constitutional rights, the

jury’s verdicts were not facially inconsistent and there was no plain error.




                                         -10-
      B. Sufficiency of the Evidence Against the Jail.

      In reviewing the sufficiency of the evidence to support the jury’s verdict

against the Jail, the procedural focus of this appeal is the district court’s denial of

the Jail’s post-judgment motion for judgment as a matter of law under Fed. R.

Civ. P. 50(b). “[T]his court reviews de novo the district court’s denial of a

motion for judgment as a matter of law[.]” Cummings v. Gen. Motors Corp., 

, 949 (10th Cir. 2004), abrogated in part on other grounds by Unitherm

Food Systems, Inc. v. Swift-Eckrich, Inc., 

(2006). “We will reverse

only if there is no legally sufficient evidentiary basis with respect to a claim or

defense under the controlling law.” 

marks and alterations

omitted). As we have further explained:

            To overturn a denial [of a motion for judgment as a matter of
      law], we must conclude that, viewed in the light most favorable to
      the non-moving party, the evidence and all reasonable inferences to
      be drawn from it point but one way, in favor of the moving party.
      That is, the [moving party] must demonstrate that there are no
      reasonable inferences supporting the jury’s verdict. In reviewing the
      record, we will not weigh the evidence, judge witness credibility, or
      challenge the factual conclusions of the jury. Most importantly, we
      may not substitute our judgment for that of the jury.

Rocky Mountain Christian Church v. Bd. of County Comm’rs, 

,

1235-36 (10th Cir. 2010) (internal quotation marks and citations omitted).

      As set forth above, Mr. Bass was being held in the Jail as a pretrial detainee

at the time he was assaulted. The Due Process Clause of the Fourteenth

Amendment protects pretrial detainees from unconstitutional conditions of

                                         -11-
confinement to the same extent that the Eighth Amendment protects convicted

criminals. See Frohmader v. Wayne, 

, 1028 (10th Cir. 1992); Craig

v. Eberly, 

, 495 (10th Cir. 1998). As a result, in the case of a

pretrial detainee such as Mr. Bass, unconstitutional conditions of confinement can

include violence at the hands of other prisoners if prison officials are deliberately

indifferent to substantial risks of serious harm. See Farmer v. Brennan, 

, 833-34 (1994). Moreover, “[i]n the Tenth Circuit [a] . . . municipality acts

with deliberate indifference if its conduct (or adopted policy) disregards a known

or obvious risk that is very likely to result in the violation of a prisoner’s

constitutional rights.” Mitchell v. Maynard, 

, 1442 (10th Cir. 1996)

(internal quotation marks omitted).

      “In this case, we review the sufficiency of the evidence against the

controlling law, which we find to be properly stated in the district court’s

[unchallenged] jury instructions.” Rocky Mountain Christian 

. Specifically, as relevant to the issues raised in this appeal with regard to

Mr. Bass’s failure to protect claim against the Jail, the jury was instructed that

Mr. Bass had to demonstrate by a greater weight of the evidence that the Jail

“maintained a policy and/or custom which created a substantial risk that [he]

would be seriously harmed.” See Aplee. App. at 10. Further, Mr. Bass was

required to show that the Jail was “deliberately indifferent to [his] safety.” 

to the latter showing, the jury was instructed as follows:

                                          -12-
              Deliberate indifference requires more than negligence or even
       gross negligence. An inadvertent failure to protect and the fact that
       an assault occurs is not sufficient to establish deliberate indifference.
       Deliberate indifference is established only if there is actual
       knowledge of a specific and substantial risk that Plaintiff would be
       assaulted and Defendants intentionally, willfully or recklessly
       disregarded that risk. Mere negligence does not constitute deliberate
       indifference.

             Plaintiff, at a minimum, must establish that Defendants
       possessed a sufficiently culpable state of mind. In order to meet his
       burden of proof, Plaintiff must show that Defendants were aware of
       and disregarded an excessive and specific risk to Plaintiff’s safety.

       Having carefully reviewed the trial testimony and other evidence in this

case, and viewing all the evidence in Mr. Bass’s favor, we conclude that the jury

was presented with sufficient evidence to support reasonable inferences that:

(1) the Jail maintained a policy and/or custom of permitting jailors to commingle

unclassified, intoxicated detainees with unclassified, non-intoxicated detainees,

and the Jail’s policy and/or custom created a substantial risk that intoxicated

detainees such as Mr. Bass would be seriously injured; (2) the Jail was aware of

the substantial risk that intoxicated detainees such as Mr. Bass would be

assaulted; (3) the Jail disregarded the risk by allowing jailors to inadequately

supervise the drunk pod; and (4) the Jail’s deficient supervision practices were a

proximate cause of Mr. Bass’s injuries.

       To begin with, based on the evidence introduced at trial regarding the State

of Oklahoma’s Minimum Jail Standards and the Jail’s own internal policies

                                          -13-
requiring close supervision of unclassified detainees, we believe the jury, relying

on its own common sense and intuition, could reasonably infer that the Jail

maintained a policy and/or custom that was deliberately indifferent to a

substantial risk that commingled intoxicated detainees such as Mr. Bass would be

assaulted and seriously injured. 2 This does not end our inquiry, however,

because, in accordance with the jury instructions, we must also determine whether

Mr. Bass presented sufficient evidence to show that the Jail “intentionally,

willfully or recklessly disregarded” the risk it created and was aware of. See

Aplee. App. at 15. Having carefully considered the trial testimony of Christy

Gunter and Officer Goodwill, and viewing this issue as part of the deliberate

indifference inquiry, we conclude that he did.

      Although the evidence introduced at trial showed that Christy Gunter, the

booking clerk, would watch a closed-circuit television monitor that is located on

her desk and hooked up to a camera in the drunk pod, Ms. Gunter testified that

she only looked up at the monitor “occasionally” or “when [she] had the time.”

Aplt. App. at 317. This was because Ms. Gunter had numerous other duties that

she also had to perform. 

314-17. Nonetheless, Ms. Gunter readily

acknowledged that commingled detainees in the drunk pod needed to be closely


2
       As we have concluded, the policies and/or customs at issue in this case are
sufficient in themselves to show the substantial risk of serious harm that they
address. Thus, Mr. Bass did not have to put forth evidence showing that there
had been similar assaults previously at the Jail.

                                        -14-
supervised because it was “very foreseeable” that the pod would contain a mix of

maximum security detainees and minimum security detainees, 

and

Officer Goodwill likewise testified regarding the need for close supervision of the

drunk pod, 

According to the testimony of Officer Goodwill,

however, it was difficult for Ms. Gunter to provide the needed close supervision

given all of her other job duties. 

In fact, on the night in question,

Ms. Gunter did not notice that anything was amiss in the drunk pod until she

observed Mr. Bass lying on the floor of the pod, which was after he was assaulted

by Jason Grass. 

      On the night Mr. Bass was assaulted, Officer Goodwill was the only other

Jail employee at the intake facility. 3 During the approximately forty minutes that

elapsed between the time that Officer Goodwill placed Jason Grass in the drunk

pod and the time that he placed Mr. Bass in the drunk pod, Officer Goodwill was

passing out meals to other detainees and performing other duties, but he testified

that he was always within “earshot” of the drunk pod. 

179. But

regardless of whether he was always within earshot of the drunk pod, Officer




3
       Ms. Gunter testified that there normally would be one additional Jail
employee who was a “roamer-type” and would go “back and forth between the
county and the city jail,” but she did not recall that person being on duty on the
night in question. See Aplt. App. at 311. There was no other reference to this
“roamer-type” during the trial, however, so it is not clear what the roamer’s duties
entailed.

                                         -15-
Goodwill acknowledged that some form of “eye-on observation” is still necessary.

His specific testimony was as follows:

      Q. Mr. Goodwill, we have a situation where you have a crowded jail,
      a noisy jail, a busy night, is it your testimony that during the 40
      minutes, or thereafter, that you could hear what is going on in [the
      drunk] pod at all times?

      A. A general conversation like we are having right now, probably
      not, but somebody whooping and hollering and yelling for help, yes,
      I would have.

      Q. Whether or not they were whooping or hollering and calling for
      help, there needs to be some type of eye-on observation, as well as
      being able to hear, would you agree?

      A. I understand that’s what the monitors were for.

Officer Goodwill further testified that, when he was performing his

duties of going from cell to cell throughout the intake facility to pass out meals to

other detainees, “[he] would rely on Ms. Gunter to be watching the camera.”

      Based on the testimony of Christy Gunter and Officer Goodwill, we believe

the jury could reasonably infer that the Jail’s supervision practices (i.e., only

“occasionally” watching the television monitor and remaining only within

“earshot” of the drunk pod) 4 were deliberately indifferent to a substantial risk that


4
       The jury could reasonably infer that the conduct of Christy Gunter and
Officer Goodwill reflected the Jail’s relevant supervision practices because, as
their testimony indicated, their conduct was a function of the official job duties
assigned to them. Further, the Jail put forth no evidence suggesting that they
                                                                       (continued...)

                                         -16-
intoxicated detainees such as Mr. Bass would be assaulted. Importantly, we also

believe the jury could have drawn a reasonable inference that these deficient

supervision practices were a proximate cause of Mr. Bass’s injuries.

      With regard to causation, the most significant evidence presented at trial

was the written statement of one of the other detainees who was being held in the

drunk pod at the time Jason Grass was placed in the pod. As presented during the

trial through a colloquy between counsel for Mr. Bass and Officer Goodwill, the

statement was as follows:

      Q. (By Mr. Bisher) This statement was obtained through
      Mr. Glandon, the internal affairs investigator; is that correct?

      A. I would guess so, yes.

      Q. The second page of this is actually the handwritten statement of
      Mr. Martinez and then Mr. Glandon had it translated, did you
      understand that?

      A. Yes.

      Q. “On Wednesday, 6/5/03,” that’s the date . . . Jason Grass, and
      Johnny Bass were arrested, correct?

      A. Yes.

      Q. “In the evening between 6 p.m. and 7 p.m., I, Manuel Martinez,
      was locked up in the jail with another three young prisoners.
      Everybody was peaceful until another prisoner entered. He had long
      hair and tattoos on his body. He acted desperate. He started to
      scream, looked like he was talking to friends in another cell, and


4
(...continued)
were in any way acting contrary to the Jail’s customary practices.

                                        -17-
      [was] hitting the door very hard over and over. Later, the food
      arrived,” that’s when you were feeding; is that correct?

      A. I would assume so, yes.

      Q. “Later the food arrived and he took two plates. He told us to take
      – he told us to take one of the plates he had and so I had to take the
      plate, because everyone had one. I was uncomfortable taking the
      plate. He offered me some tea and I said nicely, no. He looked at
      me funny and I thought he had mental problems. Later on another
      prisoner arrived who was older, he asked me for a place to sit. The
      moment the old man sat down, the man with the long hair attacked
      him, hitting him directly in the face.” He is referring to Mr. Bass,
      isn’t he, Johnny Bass?

      A. Yes.

      In response to follow-up questions regarding Mr. Martinez’s description of

Jason Grass’s behavior, Officer Goodwill testified as follows:

      Q. If somebody . . . was acting that way, would you be concerned?

      A. If I had seen it, yes.

      Q. Anyone who would have been able to appreciate that behavior
      would be able to appreciate that that person had the propensity of
      hurting someone, is that a fair statement?

      A. If that’s the way it happened, yeah.

      Q. At anytime did you hear this loud banging on the door that was
      described by Mr. Martinez?

      A. No, I did not.

             ....




                                       -18-
       Q. Would you agree, Mr. Goodwill, that Mr. Martinez’s statement,
      assuming that that’s a credible statement and the truth of what he
      wrote down, that wouldn’t describe someone who was calm?

      A. Would you repeat that?

      Q. Sure. Mr. Martinez, who described Jason Grass’s behavior,
      banging on the door, yelling, quote, “thought he was mental,” that
      wouldn’t describe someone who was, quote, “calm,” would it?

      A. No, it would not.

      Q. If that existed, if that behavior was exhibited, and you are aware
      of that behavior, you would have taken him out of the cell, right?

      A. Yes, I would have.

      Q. That is something that you knew to do?

      A. Yes.

161.

      Viewing this testimony in the light most favorable to Mr. Bass, the jury

could reasonably have found that Mr. Martinez’s statement was credible, and that

either Christy Gunter would have seen or Officer Goodwill would have heard the

commotion that Jason Grass made after he was placed in the drunk pod if they

had been closely supervising the pod. By his own admission, if this had occurred,

Officer Goodwill would have removed Jason Grass from the drunk pod, and it is

reasonable to infer that Mr. Bass would not have been assaulted. Because Christy

Gunter and Officer Goodwill were acting pursuant to the Jail’s policies and/or




                                       -19-
customs and their assigned duties, the Jail was properly found liable for the

resulting assault.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    David M. Ebel
                                                    Circuit Judge




                                        -20-