each jail argue they had no responsibility for those county facilities on a day to day basis, it can only be concluded, albeit sadly, that Judge Joelson was correct all along. It is clear to this court that while prior to Executive Order No. 106 Fauver's authority was merely supervisory, after Executive Order No. 106 Fauver's authority extended as far as necessary to implement the goals set forth therein. Having decided to use county facilities to house state inmates, Fauver assumed responsibility for those county facilities. Similar reasoning applies to defendant Call.
Be that as it may, lack of power and lack of duty are clearly defenses to liability. But, equally as clearly, "the entitlement is an immunity from suit rather than a mere defense to liability, and . . . is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985) (emphasis in original).
We return to where we began -- the Anderson test: should reasonable officials, acting in the capacities of these defendants, have understood that their actions violated what I have found to be clearly established rules? More specifically, could defendants have believed their actions to be lawful in light of those rules and the information they possessed.
Without belaboring what has already been belabored, the answer as to defendants Fauver and Call is clearly "No," and their description of their conduct as an attempt to be "as fair and equitable as possible in the allocation of inmates," Br. at 30, even if true, is "irrelevant," as Anderson put it. While the jury may well find that the acts of Fauver and Call were not a proximate cause of plaintiff's injuries, those same acts mandate that Fauver and Call's motion for summary judgment on the ground of qualified immunity be denied.
Defendant Hogan's motion will be granted. Hogan understood the constitutional dimensions of the problems at the Burlington County Jail and, whether player or functionary, the record reveals Hogan's continued efforts to alleviate these problems, not to ignore them or place them on the back burner. In his letter to Fauver of November, 1981, he warned that there was a potential for a "major disaster" at the Burlington County Jail. Viewed objectively, Hogan's hands at that point were tied and it was reasonable for him to accept Fauver's offer of at least a piecemeal solution and hope, perhaps, for complete relief without the necessity for filing suit as other counties had done.
The Daniels & Davidson Issue
Defendant Hogan argues that the complaint should be dismissed because the evidence as to him shows nothing more than negligent misconduct and, thus, as a matter of law, he cannot be held liable. Given my disposition on qualified immunity as to defendant Hogan, I need not reach this issue but note that the determination he would have me make is more properly made by the jury. Defendants Fauver and Call argue for dismissal because the allegations that they were deliberately indifferent and grossly negligent fail to state a claim under § 1983. This argument is unavailing.
In Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) and Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986), the Supreme Court held that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." 106 S. Ct. at 663. However, neither Daniels nor Davidson decided the issue of whether "recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause." Daniels, 106 S. Ct. at 667 n.3. See also 474 U.S. 344, 106 S. Ct. 668, 672-75, 88 L. Ed. 2d 677 (Blackmun, J., concurring in Daniels and dissenting in Davidson).
Absent Supreme Court precedent, this court is bound by the decision of the Third Circuit. In Davidson, Judge Sloviter, writing for the majority of the Third Circuit sitting en banc, held that "actions may be brought in federal court under § 1983 when there has been infringement of a liberty interest by intentional conduct, gross negligence or reckless indifference, or an established state procedure." 752 F.2d at 828 (emphasis added). While Judges Weis and Garth did not join in the reference to gross negligence, 752 F.2d at 828 n.8, it is fair to assume that the three dissenting judges who found mere negligence to be enough to state a claim under § 1983 would agree with that aspect of the holding. See Hicks v. Feeney, 770 F.2d 375, 378 (3d Cir. 1985). Certainly, district courts within this circuit have assumed that gross negligence is sufficient to state a claim under § 1983. See, e.g., Heine v. Connelly, 644 F. Supp. 1508, 1513 n.5 (D. Del. 1986) (Longobardi, J.); Kempski v. Ellingsworth, 633 F. Supp. 685 (D. Del. 1986) (Roth, J.).
Plaintiff alleges that defendants were deliberately indifferent to and grossly negligent concerning the above listed constitutional violations. Complaint, paras. 63-71. There is evidence in this record which would enable a jury to find that the conduct of Fauver and Call constituted deliberate indifference and/or gross negligence. Moreover, plaintiff's incarceration in an overcrowded cell with a state prisoner may be characterized under Executive Order No. 106 as a formalized state procedure. I, therefore, conclude that plaintiff's cause of action is not barred by Daniels and Davidson.
The Question of Causation
Defendants Fauver and Call, relying on Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980), move to dismiss on the ground that it was not foreseeable to them that Ryan would be injured by Scott while in custody. Defendant Hogan argues that under the doctrine enunciated in Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976), he should be dismissed because plaintiff can establish no affirmative link between his injuries and Hogan's conduct. I deal with these arguments together because they both revolve around the question of proximate cause: what did these defendants do which caused plaintiff's injuries. I note in passing that plaintiff has the right to appeal the qualified immunity decision as to defendant Hogan and in the event my decision is reversed, this issue would then have to be addressed. I address it now.
The Third Circuit recently summarized the Rizzo holding as follows:
In Rizzo v. Goode, 423 U.S. 362, [46 L. Ed. 2d 561, 96 S. Ct. 598] (1976), the Supreme Court addressed and rejected the argument that a supervising public official has an affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates. It held that even where a pattern of constitutional violations by subordinates is shown, supervising officials do not violate the constitutional rights of the victims of such misconduct unless they have played an "affirmative part" in that misconduct.