Richard Hightower v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-1116
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RICHARD HIGHTOWER,
Appellant
v.
CITY OF PHILADELPHIA; SERGEANT SHANTEL
MAJOR; CORRECTIONAL OFFICER JOHN DOES 1–10;
MEDICAL JOHN DOES 1–10
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:21-cv-04075)
District Judge: Honorable Karen S. Marston
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Argued: December 2, 2024
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Filed: March 7, 2025)
Charles L. Becker [ARGUED]
Colin Burke
Ruxandra M. Laidacker

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Michelle Paznokas
K LINE & SPECTER
1525 Locust Street
19th Floor
Philadelphia, PA 19102
Counsel for Appellant
Craig R. Gottlieb
Jennifer MacNaughton [ARGUED]
C ITY OF P HILADELPHIA
L AW D EPARTMENT
1515 Arch Street
Philadelphia, PA 19102
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Not every jail tragedy makes a municipality liable. Richard
Hightower, a pretrial detainee, was brutally attacked by his
cellmate and left paralyzed. So he sued the City of Philadelphia
over its jail-housing policy. But cities are seldom liable for ran-
dom, one-off attacks by one inmate against another. Because
Hightower cannot show that the city caused any constitutional
violation, the District Court properly granted it summary judg-
ment.

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I. H IGHTOWER’S C ELLMATE A TTACKED H IM,
L EAVING H IM P ARALYZED
Hightower was arrested and charged with burglary, theft,
trespass, and receiving stolen property. He was held in a city
jail pending trial. While new inmates are in intake, the jail tests,
interviews, and medically examines them to classify them by
security status. That process is supposed to be finished within
three days. Then, the jail is supposed to assign the inmate to a
permanent cell based on his classification.
Hightower was sent to an intake cell to await transfer to the
general jail population. While he was there, the jail classified
him as the second-lowest security risk (out of four classes).
Hightower’s intake cellmate was Anthony Tyler. Tyler was
classified as the highest security risk. This was not Tyler’s first
time behind bars. When he had been imprisoned before, he had
screamed and kicked the walls, beaten his cellmate, fought
other inmates, destroyed prison property, and slapped a guard.
This time, he was arrested for aggravated and simple assault,
attempted arson, and having a criminal instrument. Before
joining Hightower in his cell, Tyler had been recovering from
stab wounds in the jail’s infirmary. Under the jail’s policy, he
should have gone from the infirmary straight to a permanent
cell because he had already been classified and medically
cleared. But a company that provides prison health services
made a mistake, sending him back to an intake cell.
Tyler arrived in Hightower’s cell angry. He started pacing
the cell, kicking the door, and arguing with Hightower. He
yelled at Hightower, saying he would “F” him up. App. 111–
12. Hightower lay down on his bunk and stayed quiet. About

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twenty minutes later, Tyler had a guard turn on the TV outside
their cell. Hightower, trying to sleep, asked the guard to turn
down the volume. Tyler again threatened to “F [Hightower]
up.” App. 113. Hightower responded that if Tyler was going to
try anything, he should do it then. But the two stopped arguing,
so Hightower lay down again and fell asleep.
The next day, while Hightower was lying in his bunk, Tyler
started banging on the cell door. When a guard approached,
Tyler complained that the cell was dirty and so was Hightower.
Tyler demanded a new cell, but the guard said he could not be
moved right away.
Tyler shot back: “If I can’t get out of this cell, I’m going to
kill my cellee.” App. 170. “[H]e immediately turned around,
ran, and pulled Mr. Hightower off the top bunk.” App. 171.
Once Hightower was on the ground, Tyler punched and kicked
him. The guard radioed for medics and backup. Less than a
minute after the guard got to the cell and before her backup
arrived, she went in and pepper-sprayed Tyler, subduing him.
Backup arrived shortly after, handcuffing Tyler and taking
Hightower to the hospital. Even so, Hightower was left para-
lyzed.
Hightower sued the City of Philadelphia and the guards
under 42 U.S.C. § 1983. The District Court granted summary
judgment for defendants. Hightower does not appeal the
court’s judgment for the guard but does appeal the judgment
for the city. We review de novo, taking all facts from and draw-
ing all inferences for Hightower. Tundo v. County of Passaic,
923 F.3d 283, 286–87 (3d Cir. 2019).

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II. H IGHTOWER’S M ONELL C LAIM F AILS
Hightower alleges that the city violated his constitutional
rights by housing him with a dangerous inmate. To prove that
Monell claim, he must show both that his rights were violated
and that the city is liable for that violation. See Schneyder v.
Smith, 653 F.3d 313, 319 (3d Cir. 2011). The city is not vicar-
iously liable for the unconstitutional conduct of its employees.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead,
Hightower must show that the city’s choices were the “moving
force” behind the constitutional violation. Id. at 694.
Of course, Hightower has a Fourteenth Amendment right to
“security from physical assault by fellow prisoners.” Davidson
v. O’Lone, 752 F.2d 817, 821 (3d Cir. 1984). Thus prisons have
a duty to protect inmates from other inmates’ violence. Farmer
v. Brennan, 511 U.S. 825, 833 (1994). A prison violates that
duty if it (1) creates conditions that “pos[e] a substantial risk of
serious harm” and (2) is deliberately indifferent “to inmate
health or safety.” Id. at 834. How this two-step test works for
pretrial detainees’ Fourteenth Amendment claims is not entirely
clear in this circuit. Though the circuits agree that deliberate
indifference refers to prison officials’ subjective mental state
under the Eighth Amendment, they differ on whether the Four-
teenth Amendment standard is subjective or objective. Com-
pare, e.g., Short v. Hartman, 87 F.4th 593, 604–11 & n.9 (4th
Cir. 2023) (collecting cases) (objective), with Strain v. Rega-
lado, 977 F.3d 984, 989–93 (10th Cir. 2020) (subjective).
But we need not take sides here. Even if Hightower’s right
to security were violated, no reasonable jury could find the city
responsible for Hightower’s injuries. To show that the city was

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the “moving force” behind the alleged injury, Hightower
would have to show either that the city (1) had an unconstitu-
tional policy or custom or (2) was deliberately indifferent to
inmates’ rights. Forrest v. Parry, 930 F.3d 93, 105–06 (3d Cir.
2019) (internal quotation marks omitted). He cannot show either.
A. There was no unconstitutional policy or custom
Hightower says the city had a policy or custom of not sep-
arating inmates by security-risk level during intake. But he
cannot identify any policy saying that. True, the city had a pol-
icy of separating general population inmates by security level.
But it did not have any separation policy for inmates during
intake. And the lack of a policy is not a policy. A policy requires
“an official proclamation, policy or edict by a decisionmaker
possessing final authority.” Id. at 105. Plus, the city did have a
different written intake policy that, if followed, would have
prevented this attack; Tyler should have gone from the infir-
mary straight to the general jail population. But the city is not
liable just because its employees did not follow this policy. See
Monell, 436 U.S. at 691. Challenges to “failures and inadequa-
cies by municipalities” must take the deliberate-indifference
path, not the custom-or-policy path. Forrest, 930 F.3d at 105.
Nor has Hightower shown a custom that violated his right.
Even if he could show that the city had a custom of commin-
gling pretrial detainees that was “so persistent and widespread
as to practically have the force of law,” the custom would be
facially constitutional because the Fourteenth Amendment
does not require the city to reshuffle inmates in intake once
they are classified. Connick v. Thompson, 563 U.S. 51, 61
(2011). And the city’s policy of separating general

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population inmates by security classification does not, as
Hightower suggests, make its practice of housing differently
classified inmates together in intake for mere hours unconsti-
tutional on its face. For a facial constitutional challenge, it
would be too speculative to assume that higher-classification
inmates inherently pose a substantial risk of harm to lower-
classification ones while they are briefly comingled in intake. Bis-
trian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012), abrogated on
other grounds as recognized by Fisher v. Hollingsworth, 115
F.4th 197, 204 (3d Cir. 2024).
B. Nor has Hightower shown that the city acted with
deliberate indifference
Hightower also argues that the city caused his alleged con-
stitutional injury by failing to separate inmates in intake by
classification status, a choice that was deliberately indifferent
to inmates’ rights. Under Monell, deliberate indifference requires
“proof that a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cnty. Comm’rs v. Brown,
520 U.S. 397, 410 (1997). Ordinarily, this means that a plaintiff
must show that “[a] pattern of similar constitutional violations”
put the city on notice that, by failing to act, it was being delib-
erately indifferent to inmates’ rights. Connick, 563 U.S. at 62.
Here, too, Hightower falls short. Though a deputy warden
testified that other violent inmates in intake had attacked non-
violent ones, she could not identify a single example. And
Hightower’s expert just rehashed equally empty deposition tes-
timony. Though the expert opined that housing Hightower and
Tyler together was like “mixing predator with prey,” a lurid
metaphor, he offered no factual support. Without that support,

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we cannot say that his opinion could sustain a jury’s verdict.
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509
U.S. 209, 242 (1993). And at oral argument, counsel could not
cite any other evidence of a pattern.
Hightower says the city can be liable even absent any pat-
tern because Tyler’s attack was such an obvious consequence
of the city’s failure to reshuffle inmates in intake after classifi-
cation. But this single incident of a higher-classification inmate
assaulting a lower-classification one is not enough to hold the
city liable. True, the Supreme Court has “hypothesized” that
“in a narrow range of circumstances, a pattern of similar viola-
tions might not be necessary to show deliberate indifference.”
Connick, 563 U.S. at 63 (internal quotation marks omitted).
But it has never found this bar satisfied. And the only hypothet-
ical example of this liability that it has recognized is extreme: if
a city armed its police with guns and set them loose without
any legal training on when to use them. City of Canton v. Har-
ris, 489 U.S. 378, 390 n.10 (1989). Not even failing to train
prosecutors on their Brady disclosure duties is enough. Con-
nick, 563 U.S. at 64 (referring to Brady v. Maryland, 373 U.S.
83, 87 (1963)).
Thus, the risk to Hightower was not “so patently obvious”
that the city can be held liable. Id. Failing to temporarily seg-
regate inmates falls far short of giving police guns without
training them on the law of deadly force.
* * * * *
Hightower suffered greatly. But the city cannot be held lia-
ble. Because the city adopted a reasonable policy for handling
inmates who are often violent and dangerous, we will affirm.

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