Frankie Tatum, Appellant, v. Sheriff Jake Houser, Individually and Collectively, in Hisofficial Capacity, Appellee, 642 F.2d 253 (8th Cir. 1981)

Frankie Tatum was detained in the Pemiscott County Jail in Caruthersville, Missouri, from December 2 through December 20, 1977, while awaiting trial on a charge of first degree murder. After transfer from that jail, he commenced a civil rights action against the Sheriff of Pemiscott County, Jake Houser, in the United States District Court for the Eastern District of Missouri. In a trial before the court, he alleged violations of his Fifth and Fourteenth Amendment rights as a result of his confinement in a maximum security cell and other conditions of confinement. He prayed for $250,000 in money damages and injunctive relief.

The district court ruled that Tatum was not entitled to recover because (1) the Sheriff did not have actual knowledge of Tatum's complaints; (2) Tatum failed to establish that he was actually damaged as a result of his confinement; and (3) the evidence did not support the claim that his constitutional rights had been violated. Tatum v. Houser, 480 F. Supp. 683 (E.D. Mo. 1980). Although the court below erred in resting its decision on the first two grounds, we cannot say the trial judge's credibility finding was clearly erroneous and, therefore, affirm the judgment of the district court on the third ground.

In Missouri, the state of the law is such that "(t)he sheriff of each county in this state shall have the custody, rule, keeping and charge of the jail within his county, and all of the prisoners in such jail, and may appoint a jailer under him, for whose conduct he shall be responsible." Mo.Stat.Ann. § 221.030 (Vernon). This statute, in our view, makes the Sheriff liable for jail conditions even though he may not have had actual knowledge of them. Dimarzo v. Cahill, 575 F.2d 15, 17-18 & n.3 (1st Cir.), cert. denied sub nom. Hall v. Dimarzo, 439 U.S. 927, 99 S. Ct. 312, 58 L. Ed. 2d 320 (1978); Campise v. Hamilton, 382 F. Supp. 172, 177 & n.5 (S.D. Tex. 1974), appeal dismissed, 541 F.2d 279 (5th Cir. 1976), cert. denied, 429 U.S. 1102, 97 S. Ct. 1127, 51 L. Ed. 2d 552 (1977). Accordingly, the district court erred in ruling that the Sheriff was not responsible for the conditions existing in his own jail.

Moreover, the district court's ruling that Tatum could not recover because he had failed to show actual damages as a result of his treatment in the Pemiscott County Jail is also erroneous. In Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978), the Supreme Court ruled that deprivations of certain constitutional rights, even without a showing of actual injury, may be vindicated, at a minimum, by making such actionable for nominal damages. Id. at 266, 98 S. Ct. at 1053.

Finally, the district court's factual finding that the plaintiff failed to prove that his constitutional rights had been violated is not clearly erroneous. The plaintiff presented evidence tending to show that he was confined in a thirty-five-square-foot cell and not permitted to exercise on a daily basis; that he was not permitted to take showers; and that he was required to obtain drinking water from the toilet in his cell. That evidence was characterized by the district court, however, as unbelievable. After a thorough review of the entire file, we concur in the district court's credibility findings. The findings of the lower court are not clearly erroneous. See Bowers v. Kraft Foods Corp., 606 F.2d 816, 818 (8th Cir. 1979); Marshall v. Kirkland, 602 F.2d 1282, 1291 (8th Cir. 1979).¹  Had the district court found the evidence presented by the plaintiff to be credible, a different end result on the merits of this case might well have been required. See Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980).

The judgment of the district court is affirmed.