[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-2224

TROY JAMES UPHAM,

Plaintiff, Appellant,

v.

CHERYL GALLANT, AS PENOBSCOT COUNTY JAIL ADMINISTRATOR,

Defendant, Appellee. ____________________

DOUGLAS LITTLEFIELD,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

Before

Torruella, Chief Judge, Selya and Stahl, Circuit Judges.

September 15, 2000 Per Curiam. Plaintiff/appellant Upham appeals the

grant of summary judgment to defendant/appellee Gallant.

Upham alleges that, while he was a pretrial detainee in the

Penobscot County Jail, his civil rights were violated by

Gallant, the jail administrator, because she failed to take

reasonable steps to ensure his safety from the violent

behavior of another inmate. We affirm, albeit on grounds

different from those relied upon by the court below.

Under the Eighth Amendment, "prison officials . .

. must 'take reasonable measures to guarantee the safety of

the inmates.'" Giroux v. Somerset County,

, 31

(1st Cir. 1999) (quoting Farmer v. Brennan,

(1994) (internal quotations omitted)). While the

provisions of the Eighth Amendment do not extend to pretrial

detainees, the Due Process Clause of the Fourteenth

Amendment provides them with "rights [which] are at least as

great as the Eighth Amendment protections available to a

convicted prisoner." Revere v. Massachusetts General

Hospital,

(1983); see also Henderson v.

Sheahan,

, 844 n.2 (7th Cir. 1999) ("Although

the Eight Amendment does not extend to pretrial detainees .

. . the Due Process Clause of the Fourteenth Amendment

-2- protects pretrial detainees under the same standard as the

Eighth Amendment."); Hare v. City of Corinth,

(5th Cir. 1996) (same). Consequently, a pretrial

detainee is entitled to have reasonable measures taken to

insure his safety. See, e.g., Lopez v. LeMaster,

(10th Cir. 1999) (prison officials are responsible

for taking reasonable measures to insure safety of pretrial

detainees).

Still, not every injury suffered by a prisoner or

pretrial detainee at the hands of a fellow inmate gives rise

to a constitutional violation, but only one which, inter

alia, results from the "deliberate indifference" of prison

officials to the inmate's safety. Giroux, 178 F.3d at 32.

Viewed in the light most favorable to Upham, the facts in

this case are insufficient to support a finding that Gallant

acted with deliberate indifference.

Upham alleges that Gallant caused his injury

because she failed to institute a policy which would have

prevented Upham's being assigned to a cell in which he was

exposed to danger. However, for a supervisor to be liable

under § 1983 for failure to control her subordinates, it

must be shown that her failure to act caused the violation

"in the sense that it could be characterized as supervisory

-3- encouragement, condonation, or acquiescence or gross

negligence amounting to deliberate indifference." Lipsett

v. University of Puerto Rico,

(1st Cir.

1988) (quotations omitted). Gallant's policy of leaving

cell assignment to the discretion of lower level jail

personnel, subject to administrative review, cannot be so

characterized. Moreover, "[a]n important factor in making

the determination of liability is whether the official was

put on some kind of notice of the alleged violations; for

one cannot make a 'deliberate' or 'conscious' choice to act

or not to act unless confronted with a problem that requires

the taking of affirmative steps."

(quoting Pembaur v.

City of Cincinnati,

(1986)); see also Jane

Doe "A" v. Special School District,

, 645 (8th

Cir. 1990) (for supervisor to be subject to liability,

plaintiff must show, inter alia, that supervisor had

"received notice of a pattern of unconstitutional acts

committed by subordinates"). In the instant case, the

record fails to allege even a single prior incident which

might have put Gallant on notice that present procedures

were inadequate or that her failure to institute further

policies had resulted in, or in the future would likely

result in, the violation of an inmate's constitutional

-4- rights. Consequently, Gallant cannot be liable under

section 1983 for Upham's injuries.

Affirmed. See 1st Cir. Loc. R. 27(c).

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