United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING CITY OF GULFPORT'S MOTION TO
H. WALKER UNITED STATES MAGISTRATE JUDGE.
Keith La-Dale Porter, proceeding pro se and in
forma pauperis, filed a 42 U.S.C. § 1983 prisoner
civil rights complaint alleging unconstitutional conditions
of confinement at the Gulfport Police Department's
holding cells; (2) denial of medical care; and (3) malicious
detainment. Doc.  & . Before the Court is a motion
to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed by the
City of Gulfport (City). Doc. . The City argues that it
cannot be held liable under a theory of respondeat superior
for the actions of its employees. Furthermore, the City
argues that Plaintiff failed to identify any custom or policy
that gave rise to the alleged constitutional violations;
therefore, Plaintiff has failed to state a cause of action
against it. On July 18, 2016, Plaintiff filed a response to
the motion to dismiss. Doc. . He did not assert any
argument against the City's motion to dismiss at that
time. On December 13, 2016, the Court conducted a screening
hearing. Plaintiff testified under oath and admitted that he
sued the City of Gulfport merely because it employed police
officers whom he alleges violated his constitutional rights.
Doc.  at 41-42.
December 19, 2016, Plaintiff filed a second response to the
motion to dismiss. Doc. . Plaintiff asserted that
Gulfport should be held liable because Defendant Detective
Christopher Werner is an employee of the City of Gulfport. He
also argued that the City is responsible for its employees
training; that the detectives are not following its policies;
and that the City was negligent in the hiring of untrained
employees. The City filed a motion to strike Plaintiff's
response and argued that it was an untimely and impermissible
second response. Doc. . The Court acknowledges that
Plaintiff filed what appeared to be a first response to the
City's motion to dismiss on July 18, 2016. See
Doc. . In this first response, Plaintiff did not address
the basis for the City's motion to dismiss. Nevertheless,
at the screening hearing on December 13, 2016, the Court
allowed Plaintiff the opportunity to file an additional
response. See Doc.  at 11. Accordingly, the
City's motion to strike is denied.
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court must accept all well-pleaded
facts as true and view the facts in the light most favorable
to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196
(5th Cir. 1996). Dismissal is warranted if “it appears
certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle him to relief.”
Doe v. Dallas Indep. School Dist., 153 F.3d 211, 215
(5th Cir. 1998). “[A] complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 663.
state a cause of action for municipal liability, Plaintiff
must establish three elements: (1) an official policy,
practice or custom; (2) the official policy must be linked to
the constitutional violation; and (3) the official policy
must reflect the municipality's deliberate indifference
to the injury. Lawson v. Dallas County, 286 F.3d
257, 263 (5th Cir. 2002); see also Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th
Cir. 2001). Plaintiff's primary argument against the City
is simply that it employed Defendants Christopher Werner and
Stephen Stieler. See Doc.  at 41-42. This is an
insufficient basis for finding liability against the City of
Gulfport under § 1983. It is well established that under
§ 1983, a defendant may not be held liable for the
unconstitutional conduct of its subordinates under a theory
of respondeat superior. See Kohler v.
Englade, 470 F.3d 1104, 1114-15 (5th Cir.
2006); Williams v. Luna, 909 F.2d 121, 123
(5th Cir. 1990). A governmental entity is not
liable for constitutional violations committed by its
employees unless those violations result directly from a
custom or policy. Sanders-Burns v. City of Plano,
594 F.3d 366, 380 (5th Cir. 2010). It is only when
the execution of a government's policy or custom inflicts
the injury that the government may be found liable.
Monell v. Dep't of Social Services, 436 U.S.
658, 679-80 (1978). Moreover, there is considerable precedent
calling into question whether a single alleged incident, such
as that alleged by Plaintiff, could result in liability based
on the training, hiring, or supervising of a defendant's
employees. See Board of County Comm. of Bryan County v.
Brown, 520 U.S. 397, 404 (1997); Estate of Davis v.
City of North Richland Hills, 406 F.3d 375, 381-85 (5th
Cir. 2005). Finally, Porter simply has failed to identify a
municipal custom or policy that resulted in his alleged
constitutional deprivations. His complaint is completely
devoid of such an allegation. In his second response to the
motion to dismiss, he makes only vague references to
unspecified policies. This is not sufficient to state a claim
against the City of Gulfport.
construed Plaintiff's complaint also alleges that the
City of Gulfport maintained unconstitutional conditions of
confinement at the Gulfport Police Department's holding
cells. Plaintiff alleges that while attempting to purchase
drugs, he was robbed at gunpoint and stripped naked. Doc.
 at 19-24, 30, 47. When arrested shortly after the
robbery, he was wearing only his boxer shorts and socks.
Id. at 47-48. Plaintiff alleges that on the night
that he was arrested, he was kept in an ice cold holding cell
for several hours. Plaintiff eventually received a jumpsuit,
but not until he was transferred from the Gulfport Police
Department to the Harrison County Adult Detention Center
(HCADC) approximately eight hours after his arrest.
Id. at 34, 50. Plaintiff has remained in custody at
the HCADC and is charged with being a felon in possession of
a firearm stemming from this incident. Id. at 12,
14-15. At the time of his screening hearing, he indicated
that he was not eligible for bond. Id. at 16.
purposes of this motion, the Court assumes that Plaintiff was
a pretrial detainee during the time in question. The
Constitutional rights of a pretrial detainee flow from both
the procedural and substantive due process guarantees of the
Fourteenth Amendment. Olabisiomotosho v. City of
Houston, 185 F.3d 521, 525 (5th Cir. 1999).
Constitutional challenges may be brought by a pretrial
detainee under two alternative theories: as an attack on the
“conditions of confinement” or as an
“episodic act or omission”. Shepherd v.
Dallas County, 591 F.3d 445, 452 (5th Cir. 2009). Any
punishment of a pretrial detainee will run afoul of the
Constitution. Duvall v. Dallas County, Texas, 631
F.3d 203, 206 (5th Cir. 2011). With respect to the City,
Plaintiff's complaints of a cold holding cell appear to
be in the nature of a condition-of-confinement claim. See
Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997)
(recognizing “inadequate food, heating or sanitary
conditions” as possible bases for
conditions-of-confinement claim). The harm is caused by the
unconstitutional condition itself. Id. If a
condition of pretrial confinement is reasonably related to a
legitimate governmental objective, it does not, without more,
amount to punishment. See Hare v. City of Corinth,
74 F.3d 633, 640 (5th Cir. 1996); Duvall, 631 F.3d
at 207. “Punishment” may be loosely defined as
“a restriction or condition that is not reasonably
related to a legitimate goal-if it is arbitrary or
purposeless”. Bell v. Wolfish, 441 U.S. 520,
539 (1979). “Reasonably related” means that the
resolution is (1) rationally related to a legitimate
governmental purpose, and (2) not excessive in relation to
that purpose. Id. at 561. “[T]his test is
deferential to jail rulemaking; it is in essence a rational
basis test of the validity of jail rules.”
Hare, 74 F.3d at 646.
detainees have a right to protection from extreme cold.
See Palmer v. Johnson, 193 F.3d 346, 352-53 (5th
Cir. 1999)(finding in the Eight Amendment context that
exposure to cold without adequate protection can state a
claim for unconstitutional conditions of confinement);
Spencer v. Bouchard, 449 F.3d 721, 728-29 (6th Cir.
2006)(pretrial detainee subjected to cold cell with leaking
ceiling continuously for several months); Dixon v.
Godinez, 114 F.3d 640, 642 (7th Cir. 1997); Murphy
v. Walker, 51 F.2d 714, 721 (7th Cir. 1995)(pretrial
detainee kept in cell for a week and a half without bedding,
clothes or heat in middle of November); Bienvenu v.
Beaureguard Parish Police Jury, 705 F.2d 1457, 1460 (5th
Cir. 1983). The Seventh Circuit has provided some guidance in
this matter. See Dixon, 114 F.3d at 644. Factors to
consider include the severity of the cold; its duration;
whether the prisoner had alternative means to protect himself
from the cold; the adequacy of those alternative means; and
whether the prisoner must endure other uncomfortable
conditions in addition to the cold. Id.
on Plaintiff's allegations and testimony, it appears that
he remained in a holding cell for approximately six to eight
hours on August 28-29, 2015. Doc.  at 33-34, 51. He was
not provided a blanket or clothing by officers at the jail.
Id. at 32-34. The Court takes judicial notice that
it is hot and humid in South Mississippi in August. Plaintiff
conceded at the hearing that it was warm outside on the day
of his arrest. Id. at 32, 49. Plaintiff complains
that the air conditioning was turned down too low in the
holding cells. Id. at 32. He referred to the
temperatures as “freezing”, “ice
cold”, and “real cold”. Doc.  at 6; Doc.
 at 32, 34-35. Taking the Plaintiff's allegations as
true, he was kept in a cold, steel and concrete cell for six
to eight hours; wearing only boxer shorts and socks; without
provision of a blanket or other clothing; and all the while
suffering from head trauma. At the screening hearing,
Plaintiff also testified that he beat on the window and told
Defendant Werner that he “was freezing, because it was
cold.” According to Plaintiff, Werner responded
“that if I told him what he wanted to hear on my
interview, he would keep me upstairs where it was
warm”. Doc.  at 35.
Court finds that the City has a legitimate, non-punitive
objective to run air conditioning in the police department
holding cells during the sweltering month of August.
Plaintiff only remained in the holding cell for a maximum of
eight hours. Compare Spencer, 449 F.3d at 728-29
(pretrial detainee confined in cold cell for several months
during fall and winter); Murphy, 51 F.3d at 721
(pretrial detainee kept in cell without heat for
week-and-a-half in middle of November). Testimony at the
screening hearing suggested that he was arrested some time
after 11:00 pm, removed from a holding cell for an
unspecified period of time to be interviewed, and eventually
transferred to the Harrison County Adult Detention Center at
approximately 7:00 am. Plaintiff's conclusory assertions
that the temperatures were “ice cold” or
“real cold” do not rise to the level of severity
needed to state an unconstitutional condition of confinement,
especially in light of the fact that his confinement occurred
during what is typically the hottest part of the summer.
Compare Dixon, 114 F.3d at 642 (inmate alleged cell
temperatures of 40 degrees Fahrenheit); Murphy, 51
F.3d at 721 (confinement in mid-November in Illinois);
Del Raine v. Williford, 32 F.3d 1024, 1031 (7th Cir.
1995)(no clothing, broken window, and wind chill forty
degrees below zero); Henderson v. DeRobertis, 940
F.2d 1055 (7th Cir. 1991)(malfunctioning heating system,
broken window, sub-zero air temperature). Nor does he allege
any other unsanitary or hazardous conditions in the holding
cell that would contribute to the alleged unconstitutionality
of the conditions of his confinement. Compare
Spencer, 449 F.3d at 728-29 (cold cell with continuously
leaking ceiling); Foulds v. Corley, 833 F.2d 52 (5th
Cir. 1987)(inmate forced to sleep on floor with rats crawling
over him); Bienvenu, 705 F.2d at 1460 (5th Cir.
1983)(cold, rainy, roach-infested jail cell equipped with
inoperative, scum-encrusted washing and toilet facilities).
Based on the totality of the circumstances, the Court finds
that the City's motion to dismiss should be granted.
Plaintiff's relatively brief confinement in an overly
air-conditioned holding cell, without more, does not state a
cause of action for an unconstitutional condition of
THEREFORE ORDERED AND ADJUDGED that Defendant City of
Gulfport's  Motion to Dismiss is GRANTED, and that
the City of Gulfport is dismissed from this action with
FURTHER ORDERED that the City of Gulfport's  ...