MARK BOWERS and GERALD RENAUD v. LIVINGSTON COUNTY and BOB BEZOTTE, Sheriff

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0377n.06
No. 10-1003
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARK BOWERS and GERALD RENAUD,
Plaintiffs-Appellants,
v.
LIVINGSTON COUNTY and BOB BEZOTTE,
Sheriff,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
Before: ROGERS and KETHLEDGE, Circuit Judges; RUSSELL, Chief District Judge.*
KETHLEDGE, Circuit Judge. Plaintiffs Mark Bowers and Gerald Renaud contracted
methicillin-resistant Staphylococcus aureus (MRSA) infections while they were inmates in the
Livingston County jail awaiting trial. Each received proper treatment, and neither suffered long-term
harm from the infections. But they sued the county and the jail supervisor (the Sheriff) under 42
U.S.C. § 1983 anyway, claiming that the defendants unconstitutionally failed to protect them from
MRSA. The defendants moved for summary judgment, which the district court granted. We review
that decision de novo. See Dowling v. Cleveland Clinic Found., 593 F.3d 472, 476 (6th Cir. 2010).
The Honorable Thomas B. Russell, United States Chief District Judge for the Western*
District of Kentucky, sitting by designation.

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No. 10-1003
Bowers v. Livingston County
The plaintiffs claim that the conditions of their confinement posed a serious risk of
substantial harm to their health, in violation of the Eighth and Fourteenth Amendments. They must
show that the county and Bezotte were deliberately indifferent to that risk. See Napier v. Madison
Cty., 238 F.3d 739, 742 (6th Cir. 2001).
The county is a municipal entity, so to establish municipal liability under § 1983, the inmates
must show that their injuries were caused by a county policy or custom. See Monell v. N.Y. City
Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). The inmates do not identify any such policy. They
do seem to argue that there was an unofficial custom of tolerating unsanitary conditions, but they
have neither asserted nor demonstrated any of the elements required for such a claim. See Doe v.
Claiborne Cty., 103 F.3d 495, 508 (6th Cir. 1996). The inmates also argue that jail personnel did
not follow or enforce the official policies intended to stop MRSA from spreading. But the failure
to implement an official policy is different from showing that the policy itself was the “moving
force” behind the alleged constitutional violation. See id. So the inmates have not identified a
county policy or custom that injured them, which means they have no claim against the county.
To establish Bezotte’s deliberate indifference, the inmates must show that he was personally
aware of facts from which he could infer “an unreasonable risk of serious damage to [their] future
health,” and that he did in fact draw the inference. See Farmer v. Brennan, 511 U.S. 825, 837
(1994); Helling v. McKinney, 509 U.S. 25, 35 (1993). Here, it is undisputed that, once contracted,
an MRSA infection can be quite serious. And the inmates argue that Bezotte knew that there had
been MRSA infections in the jail before and that the jail’s lack of preventative measures made
infections likely in the future. In the five years preceding the inmates’ infections, however, the jail
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No. 10-1003
Bowers v. Livingston County
averaged just ten MRSA infections annually among approximately 5300 prisoners. That is an
infection rate of 0.19%. (By way of contrast, a jail in Texas recently suffered an infection rate of
nearly 20%. See Duvall v. Dallas Cty., 631 F.3d 203, 208 (5th Cir. 2011).) Based on that data, there
was no reason for Bezotte to infer that conditions in the jail posed an unreasonable risk that the
inmates would contract MRSA. Bezotte also is not liable in his supervisory capacity, because he did
not “encourage[] or in some way directly participate[] in” decisions that contributed to the risk of
MRSA infections. See Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). Bezotte
did not handle the jail’s day-to-day operations, and the inmates otherwise point to no evidence
suggesting that Bezotte was personally aware of the allegedly unsanitary conditions in the jail. Thus,
the record here does not permit a finding that Bezotte was deliberately indifferent to a risk that the
inmates would contract MRSA, which means the inmates have no claim against him.
The district court’s judgment is affirmed.
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