Hastings, Senior Circuit Judge, and Cummings and Kerner, Circuit Judges.
HASTINGS, Senior Circuit Judge.
Plaintiffs James J. Kish and John J. Pine instituted this action for damages in the United States District Court pursuant to the Civil Rights Act of 1871, Title 42, U.S.C.A. § 1983,*fn1 for alleged deprivation of their rights guaranteed by the Eighth*fn2 and Ninth*fn3 Amendments to the United States Constitution. The complaint charged the County of Milwaukee, Wisconsin, the Board of Supervisors of the County of Milwaukee and the Sheriff of Milwaukee, Edwin T. Purtell,*fn4 with failing to secure the plaintiffs' safety from physical and homosexual assaults during their confinement in the Milwaukee County Jail.
The trial court granted motions to dismiss defendants Milwaukee County and the Board of Supervisors, D.C., 48 F.R.D. 102. Such action is not challenged here. A motion to dismiss defendant Purtell was denied and trial on the merits proceeded before the court without the intervention of a jury.
The facts are largely undisputed. Kish and Pine were prisoners in the Milwaukee County Jail in December, 1967 and January, 1968. While incarcerated, both were subjected to physical and homosexual assaults by other prisoners.*fn5
Plaintiffs' witnesses Erwin J. Heinzelman,*fn6 Director of the Wisconsin Correctional Services, and Joseph R. Rowan, Executive Director of the John Howard Association,*fn7 testified that the Milwaukee County Jail had long-standing problems, including instances of physical and homosexual abuse. The problems were generally related to the overcrowding of the jail and the jail physical layout which combined to make reasonable supervision and separation extremely difficult.*fn8
Dr. Karl Menninger testified for plaintiffs as an expert in psychiatry and penology. It was his testimony that homosexual assault is a usual and predictable problem in jail environments throughout the United States and that jailors are aware of such activities among inmates. In response to a hypothetical question based upon the circumstances attending plaintiff Kish's imprisonment, Dr. Menninger said it was highly probable that a prisoner would be sexually assaulted and that the sheriff and the guards would be aware of such probability.*fn9
Following introduction of the plaintiffs' case in chief, the motion to dismiss defendant Purtell was renewed and denied. The trial court found that the plaintiffs had "made out a prima facie case of knowledgeable deprivation of a protected right under Section 1983."
Defendant Purtell, the sole defense witness, testified concerning the substantial overcrowding that occurred between the jail's erection in 1930 and the incidents complained of in 1967 and 1968. He stated that he agreed with Dr. Menninger's opinions regarding the problems and effects of overcrowding. He also said that overcrowding in the Milwaukee County Jail made it virtually impossible to segregate prisoners according to age, offense and past records or to remove emotionally disturbed or homosexually aggressive prisoners.
Purtell recounted his own considerable efforts at publicizing the problems of overcrowding and inadequate supervision in the jail, including appeals to the public through the media and numerous appearances before the Milwaukee County Board of Supervisors. He told of his attempts to get money for more personnel and described the various stages of review that his budgetary requests must survive, ending with the Board of Supervisors.
Purtell testified that he attempted to alleviate the overcrowded condition of the jail by transferring female prisoners to an old jail in Waukesha County and using the vacated space for men. He also took advantage of other limited avenues open to him to alleviate overcrowding. He requested the early release of prisoners nearing the end of their terms and arranged transfers, where possible, to other correctional institutions.
He worked during the summer of 1968 to investigate and select possible sites for the construction of Huber quarters*fn10 after the Board of Supervisors abandoned previously approved plans to convert garage facilities into a Huber dormitory. The removal of Huber prisoners from the jail would have temporarily provided 140 more spaces for male jail inmates.
At the conclusion of the trial, the court found:
"* * * The record is very forceful in its exposition of the vigorous efforts made by the Defendant Purtell to alleviate the problem created by the physical layout of an old building and also to alleviate the overcrowding of that jail. * * * In my view, the Defendant Purtell is not personally liable because he has personally done nothing wrong. The jail which he supervised at the time in question was and is inefficient with reference to its means of avoiding assaults of a prisoner by another prisoner, but I believe that Mr. Purtell, as this record has amply demonstrated, acted reasonably in an effort to correct the flaws inherent in the antiquated construction and in the ...