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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8284
(Summary Calendar)
ARTELIA M. SCOTT,
Plaintiff-Appellant,
versus
GEORGE E. MOORE, Individually
and as an Employee of Killeen
Police Department, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
(W-92-CA-06)
(March 3, 1993)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
The Plaintiff-Appellant Artelia M. Scott appeals from the
district court's summary judgment dismissing all claims contained

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in her 42 U.S.C. § 1983 civil rights case implicating a sexual
assault she allegedly suffered while in jail. Finding that the
defendants' motion for summary judgment and the court's judgment
based on that motion failed to address Scott's claim grounded in
the failure to staff the jail adequately, we vacate and remand the
judgment to the extent it purported to dismiss that claim, and
affirm the judgment in all other respects.
I
FACTS AND PROCEEDINGS
Scott filed a civil rights complaint against George Moore, the
Killeen Police Department, and the City of Killeen, pursuant to
28 U.S.C. § 1983, alleging that while she was in the Killeen Police
Department holding facility she was sexually assaulted by Moore, a
jailer. She then amended her complaint, dropping the Killeen
Police Department as a defendant, adding the Killeen Chief of
Police, Francis L. Giacomozzi as a defendant, and adding a state
law tort claim. Moore was dismissed from this action after being
discharged in bankruptcy.
After completion of discovery, which included interrogatories
as well as Scott's deposition, the defendants filed a motion for
summary judgment which failed to address Scott's allegation of
inadequate jail staffing. Scott did not respond to the defendants'
motion.
The district court granted summary judgment in favor of the
defendants and dismissed the case. In doing so, it too failed to
address Scott's allegation of inadequate jail staffing.

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II
ANALYSIS
On appeal, Scott contends that the district court erroneously
granted summary judgment in favor of the defendants on all claims.
She is mistaken regarding her claims that the City and Giacomozzi
permitted and tolerated a policy and practice of sexual assaults,
both by defendant Moore and by other unnamed jail employees or city
officials, and she is mistaken as to her state law tort claim. She
is correct, however, as to her claim of inadequate jail staffing.
We therefore affirm the district court's rulings as to all claims
except the inadequate staffing claim. As to that one claim, which
was not covered by defendants' summary judgment motion or the
court's judgment, we have no choice but to vacate that judgment and
remand for further consideration.
A. Standard of Review
[This Court] applies the same standards as those that
govern the district court's determination. Summary
judgment must be granted if the court determines that
"there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a
matter of law." To determine whether there are any
genuine issues of material fact, the court must first
consult the applicable substantive law to ascertain what
factual issues are material. The court must then review
the evidence bearing on those issues, viewing the facts
and inferences in the light most favorable to the
nonmoving party.
King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992) (citations
omitted).
B. Municipal Liability
Scott's § 1983 claims primarily focus on municipal liability.
There are "two different issues when a § 1983 claim is asserted

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against a municipality: (1) whether plaintiff's harm was caused by
a constitutional violation, and (2) if so, whether the city is
responsible for that violation." Collins v. City of Harker
Heights, Tex., U.S. , 112 S.Ct. 1061, 1066, 117
L.Ed.2d 261 (1992). Generally, the second issue is determined
first by assuming that the initial issue has been satisfied. See
id. at 1067.
"In a § 1983 action, a municipality may not be held strictly
liable for the acts of its non-policy-making employees under a
respondeat superior theory." Benavides v. County of Wilson,
955 F.2d 968, 972 (5th Cir.), cert. denied, 113 S.Ct. 79 (1992).
A local governing body "may be liable under § 1983, however, where
the alleged unconstitutional activity is inflicted pursuant to
official policy." Johnson v. Moore, 958 F.2d 92, 93 (5th Cir.
1992). "Official policy" is defined as:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and
promulgated by the municipality's lawmaking
officers or by an official to whom the
lawmakers have delegated policy-making
authority; or
2. A persistent, widespread practice of city
officials or employees, which, although not
authorized by officially adopted and
promulgated policy, is so common and well
settled as to constitute a custom that fairly
represents municipal policy.
Id. at 94. "A § 1983 plaintiff must plead specific facts with
sufficient particularity to meet all the elements of recovery.
This heightened pleading requirement applies to allegations of
municipal custom or policy." Fraire v. City of Arlington, 957 F.2d

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1268, 1278 (5th Cir.) (footnotes omitted), cert. denied, 113 S.Ct.
462 (1992).
Scott has alleged a policy of permitting sexual assaults on
individuals detained in the city jail. That allegation can be
separated into two distinct components, which are 1) knowledge of
sexual assaults by Moore and by other jail employees, and 2)
failure adequately to staff the jail.
1. Knowledge of Moore's and Other Jail Employees' Alleged
Assaults.
Scott argues that the City and Giacomozzi knew or should have
known of prior assaults, both by Moore and by other jail employees.
She contends that this activity amounted to a persistent,
widespread practice which was so common as to constitute a custom
representing municipal policy. See Johnson, 958 F.2d at 94. She
has failed to satisfy the heightened pleading requirement, however,
and has not responded to defendants' Motion for Summary Judgment
with any factual assertions that would preclude its being granted.
See Fraire, 957 F.2d at 1278; see Cleckner v. Republican Van &
Storage Co., 556 F.2d. 766, 771 (5th Cir. 1977).
Defendants do not dispute that Giacomozzi was the official
with the authority to make or approve official policy. There is no
record evidence, however, that Giacomozzi or any other policy-
making official of the City was aware of any sexual assaults
committed either by Moore or by other jail employees.
In his affidavit attached as an exhibit to the defendants'
motion for summary judgment, Giacomozzi averred that he

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first became aware in February, 1989, of the complaint of
Artelia M. Scott concerning her treatment during the time
she was being held in the city facility . . . following
her arrest on December 31, 1988. I immediately assigned
the complaint to the Internal Affairs Division . . . [and
then] to the Criminal Investigation Division. At 3 p.m.
on April 20, 1989, I met with [defendant] Moore to advise
him that he had been placed on administrative leave
pending the investigation. . . . Moore [subsequently]
submitted his resignation . . . .
Prior to receiving the complaint of Artelia Scott,
I had never been made aware of any complaints concerning
treatment of prisoners by jailers involving sexual
advances to or sexual assaults on prisoners. No
complaints had been filed with the department prior to
that of Ms. Scott by anyone held in the city's facility
relating to sexual advances or assaults or the
preferential treatment of prisoners in return for sexual
favors. No complaints have been received since Ms.
Scott's . . . [and] no complaints of this nature against
any other jailer or officer other than George Moore have
ever been filed.
In her deposition, Scott testified that District Attorney Hughes
told her that there were five other complaints of sexual
impropriety lodged against Moore. But she also testified that
Hughes did not state that any of the alleged incidents had been
reported to Giacomozzi or any other city officials. When asked
whether she had any knowledge from any source that any person
involved in a supervisory or administrative capacity in the Killeen
Police Department knew about these alleged incidences, she stated
that "we're still looking off into it."
Scott specifically stated that Hughes did not tell her that
any person had complained to Giacomozzi or to anyone in the City of
Killeen Administration concerning incidences of alleged sexual
assaults in the city jail. She also stated that she and her lawyer
were attempting to locate individuals who had knowledge that this
information had been conveyed to Giacomozzi or other city officials

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but that she did not know of anyone as of the date of her
deposition.
Diane Van Helden, the attorney representing the defendants,
averred in her affidavit, attached to the defendants' motion for
summary judgment, that Scott never supplemented the answers to the
interrogatories or otherwise advised Van Helden that any of the
information contained in Scott's deposition or answers had changed.
Scott has failed to show that Giacomozzi or any other city
officials knew of or tolerated any sexual assaults in the city
jail. Furthermore, the Killeen Police Department's written policy
prohibited the personal abuse of prisoners. She has failed to
raise a material fact issue in this regard.
2. Failure to Staff the Jail Adequately
In her amended complaint, Scott alleged that the City and
Giacomozzi failed to provide proper and adequate staffing of the
city jail and that they knew or should have known that such
inadequate and improper staffing created an unsafe situation.
Defendants failed to address this matter in their motion for
summary judgment; neither did the district court address it. As
the parties seeking summary judgment, the defendants bore the
burden of demonstrating that there was no dispute as to any
material fact in the case. See Impossible Electronic Techniques,
Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031
(5th Cir. 1982). They have not met their burden and therefore we
must vacate and remand that aspect of the district court's grant of
summary judgment.

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C. State Tort Claim: Defective Jail Design
Scott also alleges that the district court erred in dismissing
her state law tort claim. In her amended complaint, Scott alleged
that the design and layout of the city jail were "such that there
exists no adequate safeguards and protection for plaintiff when she
was confined there." She further alleged that the defendants knew
that the design and layout rendered the jail unsafe. And she
alleged that the defendants failed to take any action to protect
individuals confined in the jail from the opportunity for
uncontrolled abuse resulting from its "structural defects," such as
lack of visibility or monitoring cameras, and the existence of
enclosed cells.
In the district court, Scott's pleadings set forth a claim for
premises defect under the Texas Tort Claims Act. See Tex. Civ.
Prac. Rem. Code §§ 101.001, et seq. A governmental unit's
sovereign immunity is waived for claims of personal injury caused
by the condition of real property. Tex. Civ. Prac. Rem. Code
§ 101.021(2). Yet claims based on the intentional torts of
government employees, including assaults, are exempted from this
waiver of sovereign immunity. Id. at § 101.057(2).
Defendants maintain that Scott's allegations arise from the
intentional tort committed by Moore. Scott did not assert
negligence as the basis for her cause of action. Her attempted
reliance on City of Waco v. Hester, 805 S.W.2d 807 (Tex. Ct. App.
1990), is misplaced.
While Hester held that sovereign immunity was waived when an

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inmate was raped by another inmate, it clearly predicated that
decision on the fact that the person who raped Hester was not a
government employee. Thus, the claim did not arise out of an
intentional tort but from the City's antecedent negligence: The
jailers had been warned prior to the assault that the rapist had
been intimidating Hester, yet they ignored the warning. Hester,
805 S.W.2d at 813-14.
In the instant case a governmental employee, not a third
party, was the actor who perpetrated the sexual assault. There is
absolutely no evidence to suggest that Giacomozzi or any city
officials knew, prior to the assault, that Moore had a propensity
to be sexually violent.
On appeal, Scott recharacterizes her claim as one that "arose
out of the antecedent negligence of the City of Killeen's and
Employee's and not a premises defect." She also alleges that the
defendants negligently implemented the policy regarding adequate
jail security. It appears that she is alleging both negligence
claims, as opposed to her claim for premises defect, for the fist
time on appeal. If so, the claims are not properly before us
unless their preclusion would work a manifest miscarriage of
justice, a circumstance she has not alleged. See Delesdernier v.
Porterie, 666 F.2d 116, 124-25 (5th Cir.), cert. denied, 459 U.S.
839 (1982).
Assuming, arguendo, that Scott properly raised both negligence
claims in the district court, they still fail. Scott did not
respond to the defendants' motion for summary judgment. She has

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shown no defect in the jail, and thus, has shown no antecedent
negligence. She has also failed to make a showing regarding the
negligent implementation of a jail security policy. Even if she
had, she has not shown a causal connection between that negligence
and the assault. Moore, the only jailer on duty at the time of the
alleged assault, could have turned off or ignored the cameras.
Scott has not shown how any of the alleged defects or policy
implementation caused the assault. Her argument fails.
III
CONCLUSION
As the defendants failed to discharge their burden with
respect to Scott's allegation of failure adequately to staff the
jail, and as the district court did not address that issue, we
vacate and remand solely as to that issue. In all other respects,
the district court's judgment is affirmed.
AFFIRMED in part, VACATED and REMANDED in part.

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