Full opinion text
MEMORANDUM AND ORDER KARLTON, Chief Judge. Plaintiff, JOSEPH SOTO, JR., has brought this action against defendants seeking damages under 42 U.S.C. § 1983 for the deprivation of his constitutional rights. Additionally, as pendant state claims, he alleges both the intentional and negligent infliction of emotional distress. Under both his federal and state causes of action he seeks to hold defendants liable for the damages he sustained as a result of his attempted suicide. Plaintiff, IMELDA SOTO, brings this action charging the, infringement of her constitutional right to a marital relationship. The action is before me now on cross motions for summary judgment as to plaintiff JOSEPH SOTO’s section 1983 claim. I STATEMENT OF FACTS On March 14,1978, one Ralph Talpas was attacked and robbed by three males and one female as he was crossing Plaza Park, in downtown Sacramento. Immediately after the attack, he located a telephone booth across the street from the park and called the police, giving them a description of his assailants. Defendant Sergeant LaChapelle, of the Sacramento City Police Force, responded to this call approximately five minutes later; he arrived on the scene with a police dog. LaChapelle entered Plaza Park and commenced a search for Mr. Talpas’ assailants. Upon doing so he saw three males and one female who appeared to match the description given by Mr. Talpas. One of them was the plaintiff. Plaintiff asserts, and Sergeant LaChapelle does not deny, that Sergeant LaChapelle was acquainted with him from prior contacts. The events which transpired thereafter are disputed.. At a preliminary hearing regarding the robbery LaChapelle testified that as he approached the four suspects they started to leave, whereupon he ordered them all to stop and lie face down on the ground. After he had done so he observed plaintiff JOSEPH SOTO crouching on his haunches as though to run or jump. According to Sergeant LaChapelle, he could not see Mr. SOTO’s hands and thus determine if he was armed. Accordingly, defendant testified, plaintiff was again ordered to lie down so that his hands could be seen; he was told this two more times but failed to comply. At about this time defendant Officer Brewer arrived on the scene with his police dog. Sergeant LaChapelle asserts that he walked over to plaintiff and told him to lie down. When plaintiff remained in his crouching position, Sergeant LaChapelle pushed him down with his boot. At about the same time Officer Brewer released his dog which bit plaintiff. Once bitten, LaChapelle testified, plaintiff laid down on the ground as instructed. In due course the suspects were arrested and taken to Sacramento County Jail. Plaintiff’s version of what happened in the park, as related to his brother, Frank Soto, is decidedly different. He alleges he was hiding behind some bushes when a policeman and his dog found him. He told the policeman that he was unable to get up whereupon he was ordered to stay down on the ground and to put his hands apart. Plaintiff claims he complied and was willing to give himself up; he asserts that despite these facts, the policeman released his dog and he was bitten. As noted, a preliminary hearing occurred and plaintiff was bound over for trial. On April 20,1978, approximately a month after the arrest, the incidents at the jail for which plaintiff also seeks compensation occurred. Plaintiff at this time was housed in Cell 3, North 1, a “tank” cell in which other detainees were present. Defendant Wayne Fidler, a commissary deputy and two trustees were making commissary rounds with a cart, containing candy and other things for sale. Here again the facts are in dispute. Defendant Fidler’s version of the ensuing incident is that he saw Joseph’s hand and the hand of another person (whom he could not identify) reaching through the bars of the cell for something in the tray. A trustee named Butner came up to the cell and looked at Joseph whereupon Joseph spat at Butner. Another inmate then hit Butner in the hand; another inmate was reaching for Butner, and a further disturbance ensued. Defendant Fidler removed himself, the trustees, and the commissary cart from the area and called for help. Defendants Deputy Sheriff Waters, Deputy Sheriff Thomas, and Deputy Sheriff Hasapis responded to the call. Plaintiff alleges that there was a threat made by one of the County defendants to the effect that, if he continued acting in a disruptive manner, he would be killed. Plaintiff claims that after restoring order, the defendants intended to and did move him to an “isolation” cell as punishment for the disruption they believed he had caused; defendants assert that they intended to move him to another tank cell only for the calming effect it would have on him. In any event, plaintiff was told to gather his personal belongings and to accompany the defendants; it is undisputed that he complied in a quiet and cooperative manner. It is also undisputed that after leaving the cell, plaintiff’s person and belongings were searched. The County defendants claim he was searched pursuant to a standard procedure requiring that an “inmate” and his belongings are searched whenever he is moved from one cell to another. (The jailers apparently do not distinguish between pretrial detainees and convicted prisoners in this regard.) It is undisputed that defendant Hasapis and defendant Waters conducted the body search while defendant Thomas searched plaintiff’s property. Defendant Thomas claims that he found a red toy balloon containing a white powdery substance which was tested and later identified as an opium derivative. Plaintiff contends that this substance was planted in his belongings by the County defendants as a “frame-up.” (See n. 5) He was given his Miranda rights and arrested for possession of drugs. Defendants claim that upon discovery of the contraband, they determined that plaintiff posed a security threat to the jail and decided to house him on the 5th floor in a single cell. Plaintiff claims this cell amounted to solitary confinement and that his confinement there was intended to punish him for his behavior. Plaintiff discussed these incidents with his brother, Frank Soto, the evening of April 20,1978. He expressed to Frank both anger and frustration about the drug arrest. Apparently, he thought that pending charges based on the attack of Ralph Talpas were going to be dropped. His frustration stemmed in part from his belief that the subsequent drug possession arrest would interfere with the dismissal of those charges. He also stated to his brother that he believed that County defendants had planted the drugs on him and that he had been set up. ' The County defendants, on the other hand, have a different view of plaintiff’s emotional state. They assert that they did not observe any indications of depression or severe emotional disturbance; rather, he appeared to them to react to the events in the jail with calmness and stoicism. It is undisputed that the next morning, April 21, 1978, at approximately 10:40 a.m., plaintiff was found hanging in his cell. One Deputy Sheriff Develin was the deputy sheriff on duty on the fifth floor where plaintiff was housed. He states that prior to the discovery of plaintiff that morning he had noticed nothing unusual. (Under the present record it is unclear as to how plaintiff was actually discovered.) It appears undisputed that plaintiff had tied a mattress cover around the ventilator cover guarding a ventilation shaft in the cell in an attempt to commit suicide. Defendants do not contest that the ventilation cover was lacking a screen or protective device which would prevent the cover from being utilized as an anchor for suicide attempts. It appears uncontroverted that other persons incarcerated in the County Jail had either attempted to or did commit suicide by using unshielded ventilator covers as anchoring devices by which to hang themselves. Upon discovery plaintiff was immediately taken down, given cardio-pulmonary resuscitation, and removed by ambulance to a hospital. It is also undisputed that as a result of his suicide attempt plaintiff suffered severe brain damage and remains unable to care for himself or to communicate concerning these or any other events. II SUMMARY JUDGMENT STANDARD The conventional standards relative to motions for summary judgment are well known. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where it is demonstrated that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Avila v. Travelers Insurance Co., 651 F.2d 658, 660 (9th Cir.1981); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980). In determining whether summary judgment is appropriate, all the evidence, and the reasonable inferences which may be drawn therefrom, must be construed in the light most favorable to the party opposing the motion. United States v. First National Bank of Circle, 652 F.2d 882, 887 (9th Cir.1981); Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th Cir.1977); Mutual Fund Investors, Inc. v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir.1977). In this regard, then, where an issue of fact is not susceptible to direct evidence but must be resolved by drawing an inference from circumstantial evidence, the court may not draw an inference favorable to the moving party unless no other rational inference is possible. Thus relevant issues relating to the mental state of a person, since always a matter of inferences, are peculiarly decisions for the jury and are rarely, if ever, susceptible to resolution on summary judgment. See, e.g., Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); The White Motor Company v. United States, 372 U.S. 253, 259, 83 S.Ct. 696, 699, 9 L.Ed.2d 738 (1963); Los Angeles Airways, Inc. v. Davis, 687 F.2d 321, 326 (9th Cir.1982). The moving party has the burden of establishing that the standard provided in Rule 56 is satisfied. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Beltz Travel Service, Inc. v. International Air Transport Assn, 620 F.2d 1360, 1364 (9th Cir.1980). Once the moving party presents competent evidence (in the form of affidavits or otherwise) which, if not contradicted, establishes that the movant is entitled to judgment as a matter of law, the burden of coming forward with specific contravening facts shifts to the party opposing the motion. Fed.R.Civ.P. 56(e); Avila v. Travelers Insurance Co., 651 F.2d at 660; Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir.1973). If the facts set forth in the affidavits of the moving party are not contradicted by evidentiary material submitted by the opposing party, then the facts stated in movant’s affidavits must be accepted as true for the purpose of determining whether he has demonstrated he is entitled to judgment as a matter of law. Avila v. Travelers Insurance Co., 651 F.2d at 660; Jones v. Halekulani Hotel, Inc., 557 F.2d at 1310. If summary judgment is not possible, then by application of the same standards, the court “shall ... make an order specifying the facts that appear without substantial controversy. ... [U]pon the trial ... the facts so specified shall be deemed established and the trial shall be conducted accordingly.” Fed.R.Civ.P. 56(d). Ill THE STATE OF THE RECORD As a preliminary matter, I take note of the sprawling record on which the numerous, frequently ill-focused and often ill-defined arguments of the parties are based. Given this state of the record, the court has been forced to first identify what argument the parties may be making and determine whether it is supportable in the law; where relevant I have also sought to determine if there is evidence to support the assertion. In doing so I am required to begin at the beginning and initially determine whether plaintiff has stated a cause of action under his allegations. Once resolving that issue I then attempt to resolve the motion for summary judgment. In like fashion, when I turn to defendants’ motions, I first attempt to ascertain what defenses apply and then attempt to resolve the defendants’ motions. IV THE ELEMENTS OF A SECTION 1983 CLAIM “By the plain terms of section 1983 two— and only two — allegations are required in order to state a cause of action under [42 U.S.C. § 1983]. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state ... law.” Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). As this court has recently held, those are also the only elements that plaintiff need prove to establish liability at trial. Haygood v. Younger, 527 F.Supp. 808, 822 n. 17 (E.D.Cal.1981). Of course, if plaintiff seeks damages, he bears the burden of proof both as to whether the violation of his rights caused the injury and the extent of damages as well. Despite the simplicity of the initial analysis, lawsuits such as this tender a “complex interplay of the Constitution, statutes, and the facts which form the basis [of the] litigation.” Parratt v. Taylor, 451 U.S. 527, 531-32, 101 S.Ct. 1908, 1910-1911, 68 L.Ed.2d 420 (1981). Once it is determined that defendants were acting under color of state law, the court must nevertheless determine what federal right, if any, is at stake. In this case, so far as the court can determine, plaintiff makes no federal statutory claim (see Consortium of Community Based Organizations v. Donovan, 530 F.Supp. 520 (E.D.Cal.1982)); thus the first task is to ascertain what federal constitutional right, if any, is at issue. Identification of the constitutional right implicated by a plaintiffs allegation is not a mere academic exercise. The evolving section 1983 jurisprudence recognizes that each constitutional right carries its own standard for violation and thus identifies the necessary elements for the cause of action. “Because each constitutional protection has its own standards, and thus the requisites for violation of each may vary, it is necessary to examine each in turn.” Haygood v. Younger, 527 F.Supp. 808, 812 (E.D.Cal.1981). V PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT A. City Defendants 1. Alleged Use of Excessive Force To Effectuate An Arrest. Plaintiff alleges that the City defendants used unreasonable force to arrest him thereby violating his constitutional rights and giving rise to the present action in damages. He contends, first, that the use of police dogs in effectuating arrests is unreasonable per se; he goes on to assert that the use of police dogs and Sergeant LaChapelle’s conduct was, in any event, unreasonable under the circumstances. He contends that these acts deprived him of his constitutional rights in that they constitute cruel and unusual punishment in violation of the Eighth Amendment, and that they constitute the deprivation of due process in violation of the Fourteenth Amendment. (a) The Law Where, as here, no federal statutory right is asserted, the threshold issue to be addressed in any section 1983 lawsuit is whether a constitutional deprivation has been suffered by a plaintiff. If the harm suffered by a plaintiff is no more than the result of tortious conduct, an action under the Civil Rights Act will not lie. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495 (1945). See Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979); (“Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles.”) My initial inquiry, therefore, is whether plaintiff has alleged an injury of constitutional dimensions. The circuits in general seem to be in agreement that the excessive use of force in making an arrest constitutes a constitutional violation which may be redressed through section 1983; there is substantial conflict, however, as to which constitutional right is infringed by the use of such force. Some courts have found the use of excessive force to be an unreasonable seizure in violation of the Fourth Amendment. Carter v. Carlson, 447 F.2d 358, 363 (D.C.Cir.1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), reh’g denied, 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir.1970); Davis v. Murphy, 559 F.2d 1098, 1102 (7th Cir.1977). Others have found the use of unnecessary force to violate the Eighth Amendment. Howell v. Cataldi, 464 F.2d 272, 281-82 (3d Cir.1972). Still others have found Fourteenth Amendment due process violations. Davis v. Murphy, 559 F.2d at 1102; United States v. Delerme, 457 F.2d 156, 157 (3d Cir.1972). In this circuit the courts have repeatedly recognized that the use of excessive force by law enforcement personnel constitutes a violation of section 1983. See MacDonald v. Musick, 425 F.2d 373 (9th Cir.1970), cert. denied, 400 U.S. 852, 91 S.Ct. 54, 27 L.Ed.2d 90 (1971); Gill v. Manuel, 488 F.2d 799 (9th Cir.1973); Gillibeau v. City of Richmond, 417 F.2d 426 (9th Cir.1969). Moreover, the circuit court has recognized that allegations of physical brutality at the hands of jail or prison officials state a claim under section 1983 apart from any state torts provided for by state law. Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir.1969); Wiltsie v. California Department of Corrections, 406 F.2d 515, 517 (9th Cir.1968); Dodd v. Spokane County, Washington, 393 F.2d 330, 334 (9th Cir.1968); Brown v. Brown, 368 F.2d 992, 993 (9th Cir.1966). Unfortunately these cases rarely focus on which constitutional right is implicated by the allegations. But see Cohen v. Norris, 300 F.2d 24, 33 (9th Cir.1962) (unnecessary assault during the course of a search undertaken for improper purposes may violate the Fourth Amendment). I first turn to an ascertainment of which particular constitutional right is placed at issue by plaintiff’s claim of the use of excessive force in effectuating his arrest. (i) The Eighth Amendment Plaintiff argues that the use of excessive force gives rise to a claim under the Eighth Amendment’s prohibition of cruel and unusual punishment. That claim must be rejected. A claim under the Eighth Amendment arises only subsequent to conviction. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979). Nonetheless, as I have noted, the courts uniformly recognize that excessive force in the course of an arrest gives rise to a section 1983 claim. It appears to this court that such allegations implicate two underlying constitutional claims, one arising under the Due Process Clause, the other under the Fourth Amendment. (ii) The Fourth Amendment The Fourth Amendment provides that “The right of the People to be secure in their persons ... against unreasonable ... seizures, shall not be violated.... ” An arrest, of course, is a seizure of the person. See United States v. Watson, 423 U.S. 411, 416, 96 S.Ct. 820, 824, 46 L.Ed.2d 598 (1976). Thus if the application of excessive force is “unreasonable” within the meaning of the Fourth Amendment, a constitutional violation occurs. See Cohen v. Norris, supra. The rationale for this assertion is succinctly articulated by the Fourth Circuit in Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir.1970) as follows: The constitutional right to be free from unreasonable interference by police officers is incontrovertible. The Constitution has long been interpreted to embrace security from ‘arbitrary intrusion by the police.’ Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1948). This concept was reaffirmed when Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made the Fourth Amendment fully applicable to the states. It should not be forgotten that the Fourth Amendment expressly declares “the right of the people to be secure in their persons ... against unreasonable searches and seizures.” And “this inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.” Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). It is likewise clear that this shield covers the individual’s physical integrity. Injuries arbitrarily inflicted by the police are constitutionally cognizable and remediable. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1941); Stringer v. Dilger, 313 F.2d 536 (10th Cir.1963); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Jackson v. Duke, 259 F.2d 3 (5th Cir.1958); Brooks v. Moss, 242 F.Supp. 531 (W.D.S.C.1965); Jackson v. Martin, 261 F.Supp. 902 (N.D.Miss.1966). (Emphasis in original). I, likewise, hold that the use of unreasonable force, that is, force unnecessary to the pursuit of lawful law enforcement goals in effectuating arrests and securing the safety of police officers, constitutes the unreasonable “seizure” of one’s person in contravention of the Fourth Amendment. In accord, see Carter v. Carlson, 447 F.2d 358, 363 (D.C.Cir.1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). Cf. Cohen v. Norris, 300 F.2d 24, 33 (9th Cir.1962). That the individual officers had probable cause to believe plaintiff had committed a crime and to arrest him is no defense to the assertion of this Fourth Amendment violation. Regardless of the initial propriety of the arrest, the defendants had a continuing duty to conduct it in a reasonable manner. Analogously, the Ninth Circuit has held that even where a search warrant is lawfully acquired in that it is supported by specific affidavits setting forth probable cause for a search, the search pursuant thereto may nevertheless be “unreasonable,” and thus fall within the prohibitions of the Fourth Amendment because of the manner in which the officers executed the warrant. VonderAhe v. Howland, 508 F.2d 364, 370 (9th Cir.1975). To hold otherwise would be to immunize law enforcement officials from the consequences of outrageous or brutal acts inflicted in the course of an arrest because their initial acts were based on probable cause. The court concludes that plaintiff has alleged a constitutional predicate to his section 1983 action under the Fourth Amendment. (iii) Due Process Simpliciter As I have noted, excessive force used in the course of an arrest does not implicate the Eighth Amendment, because until a criminal conviction is obtained pursuant to a formal adjudication “ ‘the state does not acquire the power to punish’ ” at all. Bell v. Wolfish, 441 U.S. 520, 535 n. 17, 99 S.Ct. 1861, 1872 n. 17, 60 L.Ed.2d 447 (1979) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-1413 n. 40, 51 L.Ed.2d 711 (1977)). Accordingly, claims relating to the pretrial application of physical force are properly governed by the Due Process Clause of the Fourteenth Amendment. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In the words of the Supreme Court, such a claim alleges a violation of “the Due Process Clause simpliciter.” Parratt v. Taylor, 451 U.S. 527, 536, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981); see also Haygood v. Younger, 527 F.Supp. 808, 812 (E.D.Cal.1981). Under this provision, “[a]fter showing that the defendants were acting under color of state law, [plaintiff] must prove: a. That the interest deprived was constitutionally protected (i.e., life, liberty, or property); b. That the deprivation was without due process of law; and c. That the charged defendants subjected him, or caused him to be subjected to the deprivation.” Haygood v. Younger, 527 F.Supp. at 812. First, I will consider whether plaintiff has alleged the deprivation of a constitutionally protected interest. It appears to the court that the use of excessive force in an arrest deprives a citizen of a liberty interest, that is, his right to be free from preconviction punishment without due process of law. While the test for distinguishing “punishment” from legitimate governmental conduct may be “impossible to compress ... into a sentence,” Bell v. Wolfish, 441 U.S. at 537, 101 S.Ct. at 1913, one traditional method of determining one from the other has been described as: Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of -punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point to differing directions. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), cited with approval in Bell v. Wolfish, 441 U.S. at 537, 101 S.Ct. at 1913. Application of these criteria to the question of excessive use of force (i.e., force in excess of that requisite to accomplish an arrest) necessarily suggests that it would constitute punishment and thus give rise to application of due process standards. That is, since one test of punishment is excessive conduct, the use of excessive force would require its condemnation as punitive. “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In the instant case resolution of that question seems plain. The Supreme Court held in Bell that no punishment may precede a formal adjudgment of guilt, i.e., a criminal prosecution. It follows that the process due plaintiff in the instant case is such a formal criminal proceeding. It is of course undisputed that at the time of the arrest, plaintiff had not been afforded this process. That is, if under the applicable standards plaintiff is entitled to be free from punishment, and is nonetheless subjected to physical abuse, his liberty interest in a due process adjudication prior to punishment has been infringed upon, and he has stated a claim under section 1983. A second liberty interest protected by the Fourteenth Amendment, closely related but distinctive, is also implicated by the facts. The Supreme Court has recognized a citizen’s right “to be free from ... unjustified intrusions on personal security” as a liberty interest. Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). See also Kerr v. City of Chicago, 424 F.2d 1134, 1139 (7th Cir.1970), cert. denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 64 (1971); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir.1974), (“It is well established that § 1983 provides a remedy for one who has been the victim of an assault and battery at the hands of a person acting under color of state law. [citations omitted] The right violated by an assault has been described as the right to be secure in one’s person, and is grounded in the due process clause of the Fourteenth Amendment, [citations omitted]”). Here again, the liberty interest requires as the process due a formal adjudication of guilt. Ingraham v. Wright, supra. See § VB(ii), infra. I conclude that plaintiff in the instant case has alleged both the deprivation of a liberty interest sufficient to satisfy the first prong of the Parratt Due Process Simpliciter test and that this deprivation occurred without the process due. The third inquiry under Parratt is causation. Causation here refers to the question of whether a given defendant deprived the plaintiff of the constitutional right and not the correlative question of whether specified damages have been suffered by virtue of being proximately caused by the defendant’s violation of his rights. See § VII, infra. The statute makes liable a defendant who “subjects” another or “causes” another to be subjected to a loss of a constitutional right. The meaning of “subjects or causes to be subjected to” has been defined by the Ninth Circuit in Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978) and Arnold v. International Business Machines Corporation, 637 F.2d 1350, 1355 (9th Cir.1981). In Johnson the circuit court held that: A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made, [citation omitted] Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who ‘causes’ any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Id. at 743-44. Thus, whether defendants’ alleged wrongful conduct were acts of omission or commission, the question is whether, in traditional tort terms, the acts alleged were a proximate or legal cause of the deprivation of plaintiff’s constitutional rights. Arnold v. International Business Machines Corporation, 637 F.2d at 1355. Foreseeability of injury to plaintiff’s constitutional rights is therefore the primary inquiry in determining whether there is adequate causation to support plaintiff’s claim. Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982). Thus where a plaintiff alleges that a given defendant has, by his acts, proximately caused a violation of constitutional rights, a cause of action under the Due Process Clause has been stated, and where he proves that the violation was a foreseeable consequence, liability is established. The above analysis was undertaken to provide the analytical framework to determine whether plaintiff has stated a cause of action under section 1983, for only then can a meaningful inquiry be undertaken as to whether material issues of fact exist which preclude granting plaintiff’s motion for summary judgment. That is, the inquiry as to whether a fact is material turns on the substantive law. Having ascertained the applicable law, I now turn to resolution of the motion. (b) The Facts (i) Plaintiffs Fourth Amendment Claims Central to plaintiff’s Fourth Amendment claim is that the defendants LaChapelle and Brewer were guilty of excessive use of force in his arrest. Plaintiff also claims that Chief Kearns is liable for his failure to train his officers in the use of dogs. Finally, he claims the City is liable for permitting the use of dogs as a custom or usage. See Monell v. New York Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Thus both Chief Kearns’ and the City’s liability, if any, turns initially on whether LaChapelle and Brewer are liable. Brewer and LaChapelle’s liability, in turn, is dependent upon whether excessive use of force occurred during the course of the arrest. Accordingly, then, plaintiff’s summary judgment motion could only be granted if plaintiff had demonstrated that no material issue of fact was tendered as to those issues. For reasons that are almost self-evident plaintiff’s motion cannot be granted. Even if it were the case that a substantial dispute as to the events surrounding the arrest were not contested (clearly not the case, see Statement of Facts, § I, supra), summary judgment would not be appropriate. The question would then be whether, under those facts, the force used was “reasonable.” It is a commonplace of federal practice that questions of reasonableness are factual determinations to be made by the jury and thus inappropriate for disposition by the court on summary judgment. See Wilcher v. Curley, 519 F.Supp. 1, 7 (D.C.Md.1980); Durkin v. Bristol Township, 88 F.R.D. 613, 617 (D.C.Penn.1980); Simms v. Reiner, 419 F.Supp. 468, 475 (D.C.Ill.1976); and West v. Wheatley, 313 F.Supp. 656, 659 (D.C.Del.1970). Plaintiff argues that Sergeant LaChapelle’s previous acquaintance with him and the fact that LaChapelle had never known him to use a gun establishes the unreasonableness of his conduct. Defendants do not dispute these two factual predicates. Nevertheless, I cannot say these facts make Sergeant LaChapelle’s actions unreasonable as a matter of law. There are other possible inferences to be drawn from this set of undisputed facts; under the summary judgment standard I am required to draw all reasonable inferences in favor of City defendants. United States v. First National Bank of Circle, 652 F.2d 882, 887 (9th Cir.1981). For instance, a jury could easily decide that plaintiff’s failure to possess a gun previously did not necessarily preclude defendant from fearing that he possessed one on March 14, 1978, and thus find his actions under those circumstances reasonable. Moreover the extent of Sergeant LaChapelle’s knowledge of plaintiff and the inferences to be drawn therefrom are but one factor in evaluating the reasonableness of his actions. The reasonableness of both Sergeant LaChapelle’s and Officer Brewer’s conduct is a call which the jury must make; summary judgment as to these two defendants on this basis must be denied. Plaintiff also argues that the use of police dogs is unreasonable per se, that is, that any use of a police dog in effectuating an arrest is constitutionally unsound. He cites no relevant authority for this proposition, however, and this court is aware of none. Rather, I conclude that the reasonableness of the use of police dogs is to be evaluated in light of all the circumstances surrounding plaintiff’s arrest. Guyton v. Phillips, 532 F.Supp. 1154, 1162 (N.D.Cal.1981). Cf. Kerr v. City of Chicago, 424 F.2d 1134, 1141 (7th Cir.1970). Summary judgment on this ground must also be denied. (ii) Due Process Simpliciter As the court noted above, the question of whether plaintiff was being punished at all is dependent upon whether excessive force was used. Since excessive force is simply the obverse of reasonable force, this also is a question of fact for the jury, and plaintiff’s motion on this branch of his section 1983 claim must also be denied. Finally, plaintiff’s liberty interest claim in bodily security is also dependent upon whether excessive force was employed. Accordingly, summary judgment on this claim must also be denied. 2. City Defendants’ Liability For Events Occurring in the County Jail Plaintiff argues that the use of excessive force is not the only injury he suffered at the hands of City defendants. He asserts that they are also liable for the deprivations which occurred at the County Jail. He argues, specifically, that Police Chief Kearns knew or should have known that unconstitutional conditions existed at the jail; thus, he contends, its use to house him pending trial makes the police chief responsible for the constitutional infractions he suffered there. For brevity’s sake I here incorporate my discussion of which constitutional rights are at issue from my analysis of plaintiff’s motion for summary judgment against the County defendants. See Section VB, infra. There I conclude that plaintiff has met the section 1983 requirement of alleging the deprivation of a constitutional right rather than merely tortious harm. I also conclude that major questions of fact exist which preclude the grant of summary judgment; since plaintiff has not carried his burden of proof as to County defendants, it follows he has likewise failed to carry his burden as to City defendants and his motion must be denied. Plaintiff also argues that the actions of Sergeant LaChapelle and Officer Brewer were “substantial factors in inducing a morbid state of mind” which ultimately resulted in his attempted suicide. As I subsequently discuss in the context of plaintiff’s motion relating to the County defendants, plaintiff’s motion cannot be granted. Summary judgment as to Police Chief Kearns, Sergeant LaChapelle, and Officer Brewer on these grounds is denied. B. County Defendants Plaintiff seeks summary judgment against the County defendants as it relates to purported violations of his constitutional rights occurring while he was incarcerated as a pretrial detainee in the county jail. He predicates his asserted right to recovery upon an undigested melange of theories and facts, frequently disparate and ill-focused. Broadly, he attacks a variety of regulations and standard practices engaged in by the jail officials. More narrowly, he attacks his removal from a particular cell and his placement in another “isolation” cell; this cell contained a ventilation shaft guarded by a cover which was constructed so as to enable its use as an anchor in suicide attempts. He claims that such covers had been previously used by incarcerated persons to attempt or accomplish suicide, and that it was from this cover that plaintiff hanged himself, sustaining the massive physical injuries from which he presently suffers. As with the previous motion against the City, the court must first undertake to ascertain what is the applicable law, for only then can the court determine what facts are material. (1) The Law The court again notes that, as presently tendered, plaintiff has limited his assertions to violations of section 1983. To recapitulate, once plaintiff has overcome the threshold problem of demonstrating that activity was undertaken “under color of state law,” the second inquiry is whether he has been deprived “of any rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983. It appears to this court that the Due Process Clause of the Fourteenth Amendment may be implicated by plaintiff’s claims. I now turn to an examination of this provision of the Constitution. (i) Due Process Simpliciter It is critical to begin this examination by understanding what this case is not about. In his claims against the County defendants, plaintiff does not assert a constitutional violation pertaining to the initial decision to detain him and the curtailment of liberty that such a decision necessarily entails. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Rather, plaintiff’s claim is properly characterized as a due process simpliciter claim to be free from punishment pending resolution of his outstanding trial. As I noted above, the Supreme Court has recently squarely held that “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979). That is to say, pretrial detainees retain a liberty interest in being free from punishment without due process of law. Id. at 545, 99 S.Ct. at 1877. As Mr. Justice Stevens noted, the majority opinion in Bell v. Wolfish recognizes that “the source of this fundamental freedom is the word ‘liberty’ itself as used in the Due Process Clause, and as informed by ‘history, reason, the past course of decision,’ and the judgment and experience of ‘those whom the Constitution entrusted’ with interpreting that word.” [citations omitted]. Ibid at 580, 99 S.Ct. at 1895, (Stevens, J. dissenting). On the other hand, as the Court also explained, “the Government concededly may detain [a person subjected to arrest and proper detention after a probable cause hearing] to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. at 536-37, 99 S.Ct. at 1872-1873. Thus the initial task under the instant claim is one of distinguishing between those conditions whose purpose is to effectuate detention and those conditions which are punitively imposed. That is to say, “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 536, 99 S.Ct. at 1872. Under Bell, then, when plaintiff seeks to impose liability for a prison regulation or practice, the initial question tendered by a motion for summary judgment is whether the particular regulation or standard practice is punitive or regulatory in nature. The Supreme Court has taught that the issue of determining the punitive character of a particular disability arising from a regulation or practice of the nature discussed herein turns upon the “intent” of those adopting the regulation or countenancing the practice. “Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Bell v. Wolfish, 441 U.S. at 538, 99 S.Ct. at 1873. Thus, in effect, the Court has held that although intent is not an element of a cause of action under section 1983 or a requisite for a violation of the Due Process Clause, see Parratt v. Taylor, 451 U.S. at 534, 101 S.Ct. at 1912 and Haygood v. Younger, 527 F.Supp. at 812, it is a pertinent inquiry in determining whether a regulation or practice infringes on liberty interests protected by the Due Process Clause. The questions tendered in seeking to resolve this “intent” question are quite different, however, from those tendered by consideration of an individual defendant’s intent, because here we consider a legal rather than factual question. Because the issue is subtle and complex, before I undertake further analysis, I wish to restate it. Under Bell a pretrial detainee states a cause of action under section 1983 for a violation of his rights under the Due Process Clause if he has been subjected to punishment. Nonetheless, he may be required to submit to regulations which are non-punitive in character. When he seeks to impose liability upon the governmental agency or individual from which the questioned policy emanated, or which countenanced the policy or practice, the task becomes one of distinguishing whether the practice or regulation (once proved) is punitive or legitimately administrative in character. That question in turn is resolved as a matter of “intent.” Nonetheless, as I shall now explain, determining the character of a regulation or standard practice is a legal rather than factual inquiry. To distinguish between punitive and administrative purposes the Supreme Court has promulgated a three pronged test: whether the regulation serves a legitimate governmental purpose; whether a reasonable relationship exists between the regulation and the purpose; and whether there is an absence of excessive response to the circumstances giving rise to the need for regulations. If a regulation satisfies the three pronged test the court should then ordinarily find that the intent of the regulation is administrative rather than punitive. It seems clear upon analysis that the “intent” question here is not one of historical fact (a jury question) but of “legislative” intent (a judge question). Although, as I will point out, the determination is record based (i.e., made within a factual context), it is nonetheless legal in character. My reason for so holding is based both on the purpose served in making the determination and the method of resolution. It must be recalled that the purpose of the entire exercise is to determine the constitutionality of a regulation or practice, a legal question— i.e., does the Constitution prohibit X — not did A do X — a historical fact question. It is for the court to determine whether a particular practice or regulation is constitutional vel non, while it is for the jury to determine whether a particular act which violated the constitution occurred. Indeed, it is only in the context of “intent” understood as “legislative intent” that Bell v. Wolfish’s three part test as an exclusive set of criteria makes sense. While each of the factors which the court has mandated as the legal test might reasonably be viewed as evidence if the inquiry were one of intent as a historical fact, they cannot be viewed either as conclusive, or for that matter as the only relevant evidence for such an inquiry. Thus, as a historical fact question the effect of the conduct on the victim seems clearly relevant circumstantial evidence in determining the intent of the perpetrator, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); and see Bell v. Wolfish, 441 U.S. at 538 n. 19, 99 S.Ct. at 1873 n. 19, yet such evidence need not be considered under the Bell test. The only conclusion is that the standard enunciated in Bell is a test of a “legislative fact,” i.e., is the regulation constitutional. Accordingly, a legal question is tendered to be resolved by the court and not by the jury. The conclusion that the existence of a liberty interest in this context tenders a legal question does not mean, however, that it is not fact oriented. Indeed quite the contrary is true. The Court, at several places in Bell, emphasizes the need for a factual record. “[I]n the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Bell v. Wolfish, at 548, 99 S.Ct. at 1878 quoting from Pell v. Procunier, 417 U.S. 817 at 827, 94 S.Ct. 2800 at 2806, 41 L.Ed.2d 495. See also Bell v. Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874. The question that is tendered by plaintiff’s instant motion then reduces down as an initial matter to whether this court can determine pretrial whether the regulations and practices at issue are punitive or administrative in character. (2) Resolution of the Motion As noted in the Statement of Facts, supra, defendants assert that there is a standard practice of segregation of prisoners (whether pretrial detainees or convicts) who have caused a disturbance. Plaintiff apparently asserts that if such a practice exists it is unconstitutional as punitive. Moreover, plaintiff has tendered to the court a document entitled “Rules & Information For Prisoners.” That document prohibits “all persons in ... custody” from engaging in various conduct. Without doubt, if plaintiff engaged in the conduct the defendants allege, he was in violation of those rules. Moreover, the document provides for “punishment” for violation of those rules. It warns that “[t]he following activities are prohibited and may be cause for disciplinary action .. . [depending upon the circumstances, penalties could include loss of privileges, transfer to a security unit, and/or misdemeanor or felony prosecution.” I note that the regulations speak in several places of “disciplinary action” and “loss of privileges.” To the extent these regulations are “express” manifestations of punitive intent (that is, action taken solely for retribution or deterrence), they are invalid under Bell. To the extent these terms allow for actions taken for maintenance of jail security only, they would seem to be constitutionally sound. The question before this court is whether plaintiff was, in fact, transferred to the alleged security cell under regulations permitting such transfers for punitive reasons. To the extent that the terms of the regulations may be viewed as being expressions of intention, they constitute highly persuasive evidence on the issue. Indeed, since plaintiff has met his initial burden of coming forward with evidence on this issue, the duty now devolves upon the County defendants to respond with evidence that the purpose of the regulations were other than punitive. They have failed to do so. Accordingly, the court holds that the regulations, insofar as they permit the punishment of pretrial detainees by transfer to isolation cells, violate the Due Process Clause of the Fourteenth Amendment. Nonetheless, plaintiff’s motion for summary judgment cannot be granted. First, a material issue of fact exists as to whether plaintiff was transferred to an isolation cell. Moreover, as I discuss in connection with plaintiff’s motion directed to the individual County defendants, there is a material issue of fact as to whether plaintiff was transferred pursuant to the regulation at all. Clearly, if plaintiff was transferred for reasons unconnected with the regulations, he has failed to prove causation within the standards of Johnson v. Duffy, 588 F.2d 740 (9th Cir.1978) and Arnold v. International Business Machines Corporation, 637 F.2d 1350 (9th Cir.1981). That is to say, the individual County defendants have filed declarations concerning plaintiffs transfer from the tank cell. In those declarations they do not allude to the regulations in question here. Rather, they claim that plaintiff was moved pursuant to a standard practice of the jail to remove any prisoners from a tank cell after he has caused a disturbance or otherwise posed a threat to jail security. Of course, if there is such a standard practice it is a policy or custom within the meaning of Monell v. New York Department of Social Services, 436 U.S. at 690, 98 S.Ct. at 2035, and if unconstitutional would render the County liable if applied to plaintiff. Knight v. Carlson, 478 F.Supp. 55 (E.D.Cal.1979). I must thus consider whether plaintiff is entitled to summary judgment on this premise. The individual County defendants assert in their affidavits that the reason for the standard practice of removing disruptive prisoners is jail security and the safety of other prisoners. Such a tendered justification, if proven, would demonstrate a legitimate government interest. See Bell v. Wolfish, 441 U.S. at 540, 99 S.Ct. at 1874. Certainly, a practice permitting removal of a pretrial detainee from a tank cell after he has caused a disturbance in that cell is a reasonable response given the governmental interest, and the court finds that such a standard practice would be reasonably related to the security interest. Moreover, standing alone, such conduct would not be excessive. Thus, such a standard practice without more would be constitutional and plaintiff’s motion as to such a practice must be denied. Nonetheless, a conflict exists between the terms of the regulations and the testimony of individual jailers as to their purpose under the alleged standard practice. A question exists as to whether plaintiff was removed under the regulations or the alleged standard practice and thus as to the purpose of the jailers. Moreover, as noted infra, the motives of the individual jailers are a question of historical fact and thus for the jury. Summary judgment must be denied. Plaintiff, however, also asserts that he was placed in an isolation cell equivalent to solitary confinement. It is unclear as to whether he claims that this is a result of a standard practice, and thus a question of County liability, or only an action attributable to the individual defendants. In any event, the defendants dispute plaintiff’s characterization of the cell. A conflict in the evidence thus exists which must be resolved. If indeed the cell was in fact an isolation cell equivalent to solitary confinement — a jury question — a clear question of “excessiveness” is raised which must be resolved by the court as a matter of law. Because the issue is in dispute the court must defer resolution of the question to trial. Because this initial question cannot be resolved on the present record, summary judgment cannot be granted. The claims against the individual jailers who removed the plaintiff from the cell present a somewhat different issue. As I have noted, under Bell v. Wolfish a pretrial detainee is entitled to be free from punishment pending a determination of guilt. Under the Supreme Court’s current view of the Due Process Clause, whether or not the acts of an individual jailer (as contrasted with a standard practice or regulation) are punitive also turns upon the intent of the jailer. As the Supreme Court observed “[rjetribution and deterrence are not legitimate nonpunitive governmental objectives.” Bell v. Wolfish, 441 U.S. at 539 n. 20, 99 S.Ct. at 1874 n. 20. Here, however, the issue tendered is one of historical fact and is therefore a jury question — that is, whether defendants’ actions vis-a-vis plaintiff were motivated by feelings of retribution or deterrence. The facts of this case could certainly give rise to a reasonáble inference by the jurors that the particular officer’s conduct was motivated by either retribution or deterrence (whatever the regulations or policy permit). If such were the case plaintiff would have made out his case of a violation of his due process right to be free from pretrial punishment. Determinations of intent inevitably involve judging the credibility of witnesses and/or drawing inferences from the proven circumstances. As such they are within the province of the jury, Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); The White Motor Company v. United States, 372 U.S. 253, 259, 83 S.Ct. 696, 699, 9 L.Ed.2d 738 (1963); Los Angeles Airways, Inc. v. Davis, 687 F.2d 321, 326 (9th Cir.1982) and summary judgment thus must be denied. Plaintiff argues, however, that inferences are not at issue in the matter sub judice since one of the deputy sheriffs made life-threatening remarks to him. This evidence, even if uncontested, constitutes no more than persuasive circumstantial evidence of the speaker’s frame of mind. Accordingly, it is not conclusive, but must be weighed along with all the other relevant evidence in determining the purpose of the jailors. Nonetheless, plaintiff argues that he is entitled to summary judgment by virtue of a certain report, “Attachment R,” a “Sheriff’s Case Summary,” apparently written by one Inspector Robertson as to the incident. Plaintiff contends that this evidence conclusively establishes that the decision to remove the defendant was punitive in character. This argument must be rejected. Assuming arguendo that the report is admissible evidence (generally characterizations of the historical facts by non-percipient witnesses are prima facie hearsay), the conclusions of the report are no more than an opinion. As with any expert’s opinion (if such the report is), the jury must determine whether to accept it. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 444 F.2d 372, 378 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971). Plaintiff also argues that even if his isolation were proper, and even if the particular cell was not one which was the equivalent of solitary confinement, his being placed in a cell that contained a ventilator cover from which he could hang himself violated his constitutional rights. As the court understands this issue, it really is composed of two distinct arguments: One, that placing the defendant in such a cell violated his constitutional rights, and two, that the terrible physical injuries that plaintiff sustained by virtue of having attempted to hang himself were a proximate result of the initial violation of his constitutional rights. These are separate issues which I will treat seriatim. (ii) The Condition of the Cell as a Violation of Plaintiff’s Constitutional Rights. As in the previous discussion, the first effort of the court is to determine whether or not plaintiff’s placement in a cell with the physical characteristics in issue can implicate a constitutional interest. The County defendants argue that the absence of a protective screen in plaintiff’s cell is no more than a hazardous condition existing on public property; while conceding that such a condition might give rise to tort liability, they argue that no constitutional claim is stated. It appears to the court, however, that the Fourteenth Amendment liberty interest in freedom from unjustified intrusions upon physical security is directly implicated by plaintiff’s allegations. Plaintiff does not plead the physical condition of the cell in isolation. On the contrary, he alleges that he was placed in an isolation cell, with the dangerous condition, when defendants were on notice that just such a condition had led to suicides and attempted suicides. Moreover, he alleges that this occurred after the defendants had framed him for possession of narcotics and thus it was reasonably foreseeable that he would be in a depressed state of mind. The question is whether, on such a showing, the historic liberty interest in being “free from ... unjustified intrusions on personal security,” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977) is implicated. In some ways the issue tendered here is analogous to the problems tendered by claims of convicted persons arising under the cruel and unusual punishment clause. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). As I observed in Haygood v. Younger, maltreatment of a prisoner’s medical condition does not in itself convert lawful punishment into cruel and unusual punishment for such a risk is “run by every patient whether the patient is in prison or in a penthouse.” 527 F.Supp. 808, 821. Nonetheless, a prisoner patient “must rely on prison authorities to treat his medical needs ... it is this necessary reliance which in an appropriate case can transmute deliberate indifference (which in the case of a free person would be no more than tortious conduct) into cruel and unusual punishment.” Id. In like fashion, a dangerous condition of public property is a risk of both the detainee and his guard, and thus ordinarily poses no more than a question of tortious conduct. When, however, the condition of public property poses a special risk of grave physical harm peculiar to a prisoner’s incarceration and when, because plaintiff is confined at the instigation of the state he must rely on the state to protect him from that very danger, the condition necessarily infringes on the detainee’s liberty interest in bodily safety. That is, a pretrial detainee has a liberty interest in a minimally safe cell as measured by the facts peculiar to confinement in general and his confinement in particular. A violation of that interest without the process due gives rise to a cause of action under section 1983 Given plaintiff’s allegations, he has alleged a sufficient interest under the Due Process Clause. Having ascertained a liberty interest protected by the Fourteenth Amendment, I next consider what process is due before the State may intrude on that interest. As Mr. Justice Powell has noted, as long ago as the Magna Carta “an individual could not be deprived of this right of personal security ‘except by the legal judgment of his peers or by the law of the land, [citation omitted] By subsequent enactments of Parliament during the time of Edward III, the right was protected from deprivation except ‘by due process of law.’ [citation omitted].” Ingraham v. Wright, 430 U.S. 651 at 673 n. 41, 97 S.Ct. 1401 at 1413 n. 41, 51 L.Ed.2d 711 (1979). Indeed in the same case Mr.