Perry v. Durborow
892 F.3d 1116
10th Cir.2018Background
- Taunya Perry, a pretrial detainee, was arrested Dec. 28, 2012; she alleges detention officer Daniel Clements raped her on Feb. 25, 2013 at the Ottawa County Jail.
- Perry sued Sheriff Terry Durborow under 42 U.S.C. § 1983 alleging supervisory liability for the rape (failure to protect; deliberate indifference).
- District court found four relevant facts (accepted on appeal): male officers routinely entered the female pod contrary to policy; Durborow knew this; surveillance had known blind spots in female areas; district court found insufficient evidence that Durborow knew of prior sexual assaults.
- District court concluded a constitutional violation occurred and held the right of a female inmate to be protected from sexual assault was clearly established; denied qualified immunity.
- Durborow appealed only the clearly-established prong of qualified immunity, conceding the district court’s factual findings for purposes of the interlocutory appeal.
- Tenth Circuit reversed, holding the district court erred by failing to identify pre-February 25, 2013 cases with sufficiently particularized facts putting a reasonable supervisor on notice his conduct was unlawful; granted qualified immunity and directed entry of summary judgment for Durborow.
Issues
| Issue | Perry's Argument | Durborow's Argument | Held |
|---|---|---|---|
| Whether Durborow is entitled to qualified immunity given the alleged supervisory liability for sexual assault of an inmate | Durborow knowingly allowed male officers into female pod and knew of surveillance blind spots; a reasonable supervisor would be on notice that such deliberate indifference violates inmates’ Fourteenth/Eighth Amendment rights | Even accepting the district court’s facts, the law was not clearly established as to supervisory liability in these circumstances as of Feb. 25, 2013 | Reversed: Durborow entitled to qualified immunity because plaintiff failed to identify pre-2013 case law with sufficiently particularized facts putting a reasonable official on notice |
| Whether Keith II and related general pronouncements alone clearly established the law for supervisory failure to protect from employee sexual abuse | General precedent shows deliberate indifference to employee sexual abuse is unconstitutional | General statements are too high-level; must point to cases with similar supervisory facts pre-dating the conduct | Held: General statements (including Keith II decided after the conduct) insufficient to defeat qualified immunity |
| Whether prior Tenth Circuit decisions (Tafoya, Gonzales, Lopez) put Durborow on notice | These cases show supervisors can be liable where they knew risks materialized and failed to act | Those cases relied on defendants’ knowledge of prior actual assaults — a critical factual distinction absent here | Held: Those precedents did not place the constitutional question beyond debate because Durborow was not found to have known of prior assaults |
| Whether jurisdiction exists to review denial of summary judgment when defendant originally contested district court facts | Perry argues appellate review is proper only for legal issues; defendant’s factual disputes should bar review | Durborow conceded district court facts at oral argument for appellate purposes, preserving jurisdiction to decide the legal question | Held: Appellate jurisdiction exists because Durborow accepted the district court’s factual findings for the appeal; caution issued against challenging facts then conceding them late |
Key Cases Cited
- Keith v. Koerner (Keith II), 843 F.3d 833 (10th Cir. 2016) (recognizing inmates’ right to be free from attack by prison guards and that deliberate indifference to sexual abuse by prison employees violates the Constitution)
- Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015) (qualified-immunity interlocutory-appeal principles; requirement that clearly established law put official on notice)
- White v. Pauly, 137 S. Ct. 548 (2017) (clearly established law must be particularized to similar facts)
- Farmer v. Brennan, 511 U.S. 825 (1994) (deliberate-indifference framework for Eighth Amendment claims)
- Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008) (supervisory liability where sheriff knew of prior sexual assaults and dangerous conditions)
- Gonzales v. Martinez, 403 F.3d 1179 (10th Cir. 2005) (reversal where jail officials knew of substantial risk and failed to take measures)
- Lopez v. LeMaster, 172 F.3d 756 (10th Cir. 1999) (issues of fact precluded summary judgment where staffing/monitoring policies alleged to be deliberately indifferent)