Keith v. Koerner
2016 U.S. App. LEXIS 21917
| 10th Cir. | 2016Background
- Tracy Keith, incarcerated at Topeka Correctional Facility (TCF), was sexually assaulted by maintenance instructor Anastacio “Ted” Gallardo in October 2007; Gallardo later pled guilty in state court and Keith terminated a resulting pregnancy.
- Keith sued under 42 U.S.C. § 1983 against Gallardo (defaulted) and Warden Richard Koerner, alleging Koerner was personally liable for violating her Eighth Amendment right to bodily integrity by creating/allowing an environment conducive to sexual misconduct.
- At summary judgment the district court granted qualified immunity to Koerner; Keith appealed. The Tenth Circuit previously affirmed denial of dismissal as to Koerner (Keith I).
- Evidence developed at discovery included: an Audit Report describing systemic problems at TCF (higher incidence of sexual-misconduct/undue-familiarity investigations, many closed as unsubstantiated), prior incidents involving maintenance and other staff, policies prohibiting sexual misconduct, and testimony suggesting investigations routinely favored staff statements.
- Koerner enacted formal policies and some remedial measures (e.g., prohibiting maintenance staff from being alone with inmates), but discovery evidence created disputes on whether policies were enforced, whether investigations were adequate, and whether discipline was consistent.
- Procedural/time issue: Keith filed suit May 17, 2011; assault occurred October 2007. Kansas tolling statute for prisoners (Kan. Stat. § 60-515(a)) was invoked; Koerner argued Keith had access to courts while incarcerated and thus tolling did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualified immunity / Constitutional violation: whether Koerner was personally liable for Eighth Amendment violation | Koerner’s supervisory practices (failure to enforce policies, lax investigations/discipline, maintenance program deficiencies, and pattern of undue familiarity) created a risk and satisfy personal involvement, causation, and deliberate indifference | Koerner relied on formal policies prohibiting misconduct, argued lack of personal involvement, adequate training/policies, and that Keith’s actions contributed to the assault | Reversed district court: genuine issues of material fact exist as to Koerner’s personal involvement, causation, and deliberate indifference; summary judgment on qualified immunity inappropriate |
| Clearly established law at time of conduct | Right to protection from sexual abuse by prison employees and a supervisor’s deliberate indifference were clearly established | Koerner argued qualified immunity applied (discretionary duties, no clearly established law applicable to his conduct) | Held: law was clearly established; Keith met burden to show constitutional right was clearly established |
| Failure-to-train theory | Training was inadequate per Audit Report and contributed to risk | Koerner showed employees received IMPP 02-118 and statutory warnings; training evidence insufficient to show complete failure or recklessness | Held: failure-to-train theory insufficient on these facts—training evidence showed explicit prohibitions—claim pursued instead on policy enforcement/supervision theory |
| Statute of limitations / tolling under Kan. Stat. § 60-515(a) | Tolling applies because Keith was imprisoned and signed Confidentiality Agreement and feared retaliation, creating a triable issue about access to courts | Koerner argued Keith had access (filed motions, used law library, attended proceedings, spoke to visitors and an attorney) so tolling does not apply | Affirmed denial of summary judgment on limitations: factual disputes (Confidentiality Agreement, fear of retaliation vs. examples of filings/access) create triable issue whether tolling applies |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (supervisory liability requires personal involvement through individual actions)
- Farmer v. Brennan, 511 U.S. 825 (1994) (prison officials must take reasonable measures to guarantee inmate safety; deliberate indifference standard)
- Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993) (inmate’s right to bodily integrity; protection from guard attacks)
- Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008) (failure to enforce safety policies can show deliberate indifference)
- Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) (supervisory liability survives Iqbal where supervisor is responsible for policy enforcement)
- Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760 (10th Cir. 2013) (elements for linking supervisor to constitutional violation)
- Thomson v. Salt Lake Cty., 584 F.3d 1304 (10th Cir. 2009) (qualified immunity summary-judgment burden-shifting framework)
- Lawmaster v. Ward, 125 F.3d 1341 (10th Cir. 1997) (qualified immunity should not be insurmountable for plaintiffs)
- Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010) (existence of policy does not automatically shield supervisor if policies are not enforced)