42 USC § 1983 action alleging deliberate indifference to a serious risk of harm to an inmate; Municipal liability for an employee’s misconduct; Monell v Department of Soc Servs of City of NY; Liability based on inmate transportation policies; Liability for “inaction”; Failure to train theory; Qualified immunity; Supervisory liability

In this case involving claims of deliberate indifference to a serious risk of harm to an inmate based on sexual assault by a jail officer, the court held that defendant-County was not liable for plaintiff-Franklin’s sexual assault by a jail officer while she was an inmate. Franklin became ill and had to be transported for medical care. The transportation officer (P) sexually assaulted her in the transport van. He was fired and later pled guilty to second-degree sexual abuse. Franklin filed this suit asserting claims of deliberate indifference to a serious risk of harm, and failure to train and supervise, under § 1983. At issue in this appeal was the district court’s grant of summary judgment to the defendants other than P. As to Franklin’s claims against the County, the court held that it was not liable under Monell. It rejected her claim that the County’s policy of allowing only one male officer to transport an ill female inmate resulted in the inmate’s exposure to possible sexual assault, in violation of the Eighth Amendment. The court noted the “practice of permitting one male officer to transport a lone female inmate appears to be a custom rather than a policy.” It concluded her argument showed “only that the Jail’s transportation custom provided the opportunity for [P’s] unlawful behavior. Opportunity alone, however, fails to show that the Jail’s custom ‘direct[ly]’ caused Franklin’s assault.” She was required to “‘show that the particular injury was incurred because of the execution of’” the custom. Yet she did not “explain how her assault was ‘a direct result of [the Jail’s] . . . custom,’ as opposed to [P’s] unilateral, unlawful actions.” The court also held that the County was not liable under an “inaction” theory, which required Franklin to “show a clear and persistent pattern of unconstitutional conduct.” It found that the three instances of sexual misconduct she highlighted were “insufficiently similar to [P’s] conduct.” It concluded that the record instead showed his “actions were ‘rogue.’” There was also no liability under a failure-to-train theory where Franklin’s “contention that the Jail did not have written policies on preventing sexual abuse is belied by the record.” Finally, her claims against P’s supervisor failed. Affirmed.