KATHY CONTRERAS, on behalf of her minor child A.L., Plaintiff - Appellant, v. DOÑA ANA COUNTY BOARD OF COUNTY COMMISSIONERS, doing business as DOÑA ANA COUNTY DETENTION CENTER; PACO LUNA; JAIME CASADO; and SHAYLENE PLATERO, Defendants - Appellees.
No. 18-2176
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 20, 2020
Christopher M. Wolpert, Clerk of Court; PUBLISH
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 2:18-CV-00156-GBW-GJF)
Katherine Wray (Margaret Strickland, McGraw & Strickland, Las Cruces, New Mexico, with her on the briefs) Wray & Girard, PC, Albuquerque, New Mexico, for Appellant.
Damian L. Martinez (Haley R. Grant with him on the brief), Holt Mynatt Martinez P.C., Las Cruces, New Mexico, for Appellees.
Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
PER CURIAM
This appeal arises from allegations of deliberate indifference to violence among pretrial detainees at a juvenile detention facility in Doña Ana County, New Mexico.
Kathy Contreras, A.L.‘s mother, subsequently brought this lawsuit against the three corrections officers present during the attack, as well as the Doña Ana County Detention Center. She alleges the defendants violated A.L.‘s
We accordingly affirm the judgment of the district court.1 Chief Judge Tymkovich concurs, concluding that no constitutional violation occurred. Judge Carson concurs, cоncluding that he would dispose of this case without determining whether a constitutional violation occurred. Judge Baldock concurs in part and dissents in part. He concurs in the affirmance of summary judgment in favor of Defendants Jaime Casado and Shaylene Platero, but he dissents as to Defendants Paco Luna and Doña Ana County, concluding (1) Sergeant Luna violated A.L.‘s clearly established constitutional right to protection from violence, and (2) Doña Ana County should also be liable for that violation.
18-2176, Contreras v. Doña Ana Board of County Commissioners
TYMKOVICH, Chief Judge, concurring.
In my view, Ms. Contreras has failed not only to demonstrate the violation of a clearly established constitutional right, but also the violation of a constitutional right at all.
I. Background
On the evening of May 3, 2016, A.L. was booked into the Doña Ana County Detention Center (DACDC) for violating terms associated with his probation. As A.L. was led to his cell, three other detainees—A.H., J.S., and J.V.—spontaneously began banging on their cell doors and yelling to A.L. that they “were gonna f**k him up.”
In response, corrections officers placed all three aggressors on pre-disciplinary lockdown (“pre-disc“), which imposed a number of restrictions. While subject to pre-disc, A.H., J.S., and J.V. could only leave their cells for one of several enumerated purposes, and never at the same time. This regime also proscribed any contact with A.L. And it likewise sought to restrict communication among the three aggressors.
The next morning, Officer Casado, Cadet Platero, and Sergeant Luna were in the common area on the first floor of the juvenile pod. While A.L., J.S., and J.V. remained locked in separate cells on the second floor, A.H. obtained permission to
Video indicates all three correсtions officers watched television in the common area as A.H. finished his shower. Consistent with the restrictions imposed by A.H.‘s pre-disc, no other detainee appeared outside of the locked cells. Upon exiting the shower room, A.H. entered the common area, which houses both the commissary kiosk and the touchscreen control panel. The record discloses that Officer Casado had left the control panel unlocked.
A.H. obtained permission from Sergeant Luna to use the commissary kiosk. But as he stands at the kiosk, the video suggests A.H. glances over his shoulder to check whether the corrections officers were paying attention. He then walks off-screen. Moments later, one of the corrections officers—evidently recognizing something amiss—stands suddenly as A.H. reappears onscreen. Around this same time, J.S. and J.V. flee their newly-unlocked cells.
They enter A.L.‘s cell, closing the door behind them. J.S. and J.V. then begin assaulting A.L. As they do so, A.H. runs upstairs and locks himself inside his own cell, before Officer Casado can catch him. From downstairs, Cadet Platero re-opens A.L.‘s cell. Sergeant Luna eventually subdues A.L.‘s attackers with pepper spray. All of this transpires within twenty seconds.
II. Analysis
Ms. Contreras contends the district court erred in concluding the corrections officers’ behavior did not violate a clearly-established constitutional right to protection from violence.1
We review de novo the district court‘s decision to grant summary judgment. E.g., Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (citing Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006) (“On appeal, we review the award of summary judgment based on qualified immunity de novo.“)). Summary judgment becomes appropriate when there exists no genuine dispute of material fact, such that the moving party is entitled to judgment as a matter of law. Id. (citing
In conducting this exercise, we consider evidence and draw inferences in the manner most favorable to the non-moving party. Id. (citing Schutz v. Thorne, 415 F.3d 1128, 1132 (10th Cir. 2005)). But where, as here, a defendant asserts qualifiеd immunity, the plaintiff must also demonstrate that (1) the defendant violated a constitutional right, and (2) the constitutional right was “clearly established” at the time the violation transpired. Id. (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). Unless the plaintiff can satisfy both requirements, the defendant will prevail.
We examine each requirement in turn.
A. Constitutional Violation
The Supreme Court has explained that “the treatment a prisoner receives . . . and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”2 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Court has accordingly construed
The Supreme Court has likewise held that the
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). Most importantly for present purposes, the Court has held that prison officials “must take reasonable measures to guarantee the safety of [] inmates [].” Id. (citing same).
To the extent prison officials manifest deliberate indifference to any of these affirmative obligations, injured parties may seek redress under
To prevail on a constitutional claim for “deliberate indifference,” a plaintiff must demonstrate both an objective and a subjective failure on the part of prison officials. Id; see also Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006) (“[T]he plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm, the objective component, and that the prison official was deliberately indifferent to his safety, the subjective component.“).
1. Objective Inquiry
Where a
And where the plaintiff alleges deliberate indifference to the threats inmates may pose to one another, he must demonstrate a connection between the conditions of incarceration and the substantial (and particularized) risk of serious harm. See, e.g., Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (“To establish a cognizable Eighth Amendment claim for failure to protect [an inmate from harm by other inmates], the plaintiff must show that he [was] incarcerated under conditions posing a substantial risk of serious harm[,] the objective component . . .“) (emphasis added) (citations and quotation marks omitted)).3
from one another and from A.L. by imposing “pre-disc” requirements on A.H., J.S., and J.V. immediately upon their first and only threats to A.L. Corrections officers accordingly restricted the movements of A.H., J.S., and J.V., such that they were not permitted any contact with A.L., one another, or other detainees. Such defensive action on the part of the corrections officers cannot be characterized as objective disregard of substantial risk of serious harm.4
It is, of course, true that—despite these precautions—Officer Casado left the control panel unlocked when A.H. exited his cell to shower. And that doing so—whether consciously or not, and whether A.H. knew the panel was unlocked or not—created some risk that A.H. might access the control panel, despite the presence of two additional corrections officers nearby and the absence of any other detainees in the common area.
It is likewise true these circumstances created some risk that A.H. might somehow coordinate with J.S. and J.V.—who were segregated from one another upstairs—to unlock A.L.‘s cell. And that none of the three corrections officers present would intervene before some combination of A.H., J.S., and J.V. made
good on their threats against A.L. In my view, however, this cascade of unlikely events should not overshadow the countervailing reality that corrections officers responded swiftly and decisively to the sole incidence of threats directed against A.L. by imposing “pre-disc” on A.H., J.S., and J.V.
Given the unlikelihood that A.H.—while subject to “pre-disc“—would successfully access the unlocked control panel in the presence of three corrections officers, I would describe the risk these circumstances posed to A.L. as attenuated, rather than substantial. I would accordingly conclude the plaintiff has failed to demonstrate the requisite substantial risk of serious harm to carry her burden under the objective component of our inquiry.
2. Subjective Inquiry
I would also conclude the corrections officers lacked awareness of the facts necessary to infer subjective knowledge of this risk. Our subjective inquiry requires that prison officials manifest actual knowledge of facts from which an inference could be drawn regarding the existence of a substantial risk. Farmer, 511 U.S. at 837. The Supreme Court has likewise emphasized that prison officials must actually draw the appropriate inference. Id. at 837-38 (“[A]n official‘s failure to alleviate a significant risk that he should have perceivеd but did not, while no cause for commendation, cannot
As a threshold observation, the record discloses nothing to suggest the corrections officers actually drew the inference of substantial risk to A.L. To be sure, the record certainly suggests some level of negligence. Taken as a whole, however, the fact that three officers allowed A.H.—and only A.H.—outside of his cell while the control panel remains unlocked does not satisfy the subjective inquiry‘s requirement of actual knowledge.
As Judge Carson‘s concurring opinion acknowledges, and as Judge Baldock argues in his partial dissent, the case against Sergeant Luna is strongest, on account of his firsthand experience with at least one prior incident of unauthorized access.5 But even if Sergeant Luna or the others were familiar with these incidents, I do not believe we can conclude they actually drew the inference of substantial risk to A.L. For one, all of these incidents transpired more than a
year before the attack on A.L. Moreover, only two of them actually involved detainee-on-detainee violence.
From what best I can discern from the record, both incidents involved readily-distinguishable factual circumstances. In the first incident, one detainee lured the duty officer to a nearby closet on pretext of retrieving a mop so that a second detainee could access the control panel and unlock cells occupied by a third co-conspirator and their eventual victim. Notwithstanding a superficial resemblance, several significant differences undermine the connection between this incident and the assault on A.L. As a condition of “pre-disc,” A.H. was the sole detainee permitted in the common area. And three correctiоns officers—as opposed to just one—observed his movements from their perch, just yards away from the commissary kiosk and the control panel.
The record discloses fewer specifics about the details of the second incident. But we know a single detainee somehow accessed the control panel to unlock another detainee‘s cell. And that he attacked the second detainee. The record does not disclose whether other detainees were present within the common area, or how many, if any, corrections officers might have been supervising the detainees. For these reasons, I would conclude the same logic that undermines the applicability of the previous incident to the assault on A.L. applies to this incident.
None of these distinctions should excuse the non-constitutional significance of these incidents. Whenever a detainee—particularly a juvenile—suffers violence at the hands of another detainee, it is important for the facility to identify and to address whatever underlying issues may have contributed to that harm. By the same token, we must acknowledge that not every wrong will sound in constitutional right and remedy. And—in part because these prior incidents present distinguishable factual circumstances—I cannot infer subjective
To the extent, moreover, that we did infer subjective knowledge, Ms. Contreras has provided no evidence to suggest the corrections officers actually reached that inference. Even if I shared the conviction that reasonable corrections officers should have inferred A.H.‘s plans from two previous incidents that transpired more than a year prior to these events, the Supreme Court has emphasized that the
Although the corrections officers sought to protect A.L. from harm, it seems likely that negligence undermined their efforts. Negligence offers much cause for concern here; but precedent tells us it cannot elicit constitutional intervention. See, e.g., Berry v. City of Muskogee, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (observing that deliberate indifference requires a greater degree of fault than negligence or gross negligence). To be clear, the facility likely could have addressed the risk of detainee-on-detainee violence more effectively. But we must abide by the Supreme Court‘s mandate to assess both objective risk and subjective awareness of that risk.
The subjective inquiry requires that we ask whether the officers knew of a substantial risk and consciously disregarded the dangers that risk posed to A.L. I cannot infer subjective knowledge of any substantial risk to A.L. from this record. And no evidence indicates the corrections officers manifested the requisite actual knowledge of this risk, in any event. I would accordingly conclude that Ms. Contreras has failed to carry her burden.
B. Clearly Established Law
Even if we were to conclude a constitutional violation had occurred, the circumstances of this case nonetheless cannot satisfy the rigorous standards the Supreme Court has articulated for clearly established law. A “clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates thаt right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and quotation marks omitted).
We need not “require a case directly on point,” but the Supreme Court has cautioned that “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (citations and quotation marks omitted). This is because qualified immunity is meant to “protect[] all but the plainly incompetent or those who knowingly violate the law.” Id. (citations and quotation marks omitted). The Supreme Court has repeatedly instructed lower courts “not to define clearly established law at a high level of generality.” Id. (citations and quotation marks omitted).
As the Court has likewise emphasized “[t]he dispositive question is whether the violative nature of particular conduct is clearly established.” Id. (citations and quotation marks omitted) (emphasis in original). Such an inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. (citations and quotation marks omitted) (emphasis added).
Ms. Contreras frames the constitutional violation at a high level of generality: “[A] known but disregarded threat to an inmate‘s physical safety, combined with evidence
But even if—for the sake of argument—we take this rule as given, the two Tenth Circuit authorities cited most extensively by Ms. Contreras, Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990), and Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008), do not yield fair notice of a constitutional violation in this case.
In Berry, we held that a reasonable jury could conclude corrections officers had manifested deliberate indifference to the prospect of violence when one inmate was murdered by two others he had testified against at trial. 900 F.2d at 1498. Several observations readily distinguish this case from Berry. For one, the corrections officers in Berry took no action upon learning of the potential threat posed by the inmate‘s co-defendants. In this matter, by contrast, corrections officers placed all three aggrеssors onto “pre-disc” immediately upon their first and only threats to A.L.
Moreover, in Berry the perpetrators freely roamed the facility to access the murder weapon—a wire from a broom stored in a common area—under the
nominal supervision of just one corrections officer. Id. at 1497. In this case—on account of the “pre-disc” precautions we have already discussed—A.H. was permitted outside of his cell only when other detainees were locked securely within theirs. And only then when not one, but three officers were present to oversee his activities. In our view, Berry cannot clearly establish a constitutional violation under the circumstances we now consider.
In Howard, we reversed the district court‘s decision granting summary judgment to corrections officers who failed to intervene when a newly-transferred inmate complained that members of the same prison gang who sexually abused him at a prior facility once again had begun to threaten him. 534 F.3d at 1241-42. The inmate was sexually assaulted three times before corrections officers acted on his request to be relocated to a facility that did not contain members of this gang. Id. at 1233-34.
In my view, the same central observation that distinguished this case from Berry applies with equal force to Howard. Here, corrections officers placed all three aggressors onto “pre-disc” lockdown as soon as they threatened A.L. Of course, Sergeant Luna, Officer Casado, and Cadet Platero should have been more attentive. Perhaps more suspicious, too. And certainly less distracted by the television. But we cannot ascribe constitutional significance to their negligence.
Both Berry and Howard clearly establish that credible threats merit reasonable response. These authorities do not, however, demand perfection under the challenging circumstances that corrections officers often confront; for the Supreme Court has obsеrved that “not . . . every injury suffered by one prisoner at the hands of another [will] translate into constitutional liability.” Farmer, 511 U.S. at 834 (cleaned up).
The
The same problem undermines Ms. Contreras’ reliance upon Street v. Corrs. Corp. of Am., 102 F.3d 810 (6th Cir. 1996). In that case, a corrections officer—using an electronic control panel—opened every door in the unit after one inmate had threatened to assault another. See id. at 813-14. The inmate made good on this threat, and the Sixth Circuit reversed the district court‘s decision granting summary judgment to the corrections officer. Id. at 816. In this
case, by contrast, Sergeant Luna, Officer Casado, and Cadet Platero imposed and enforced a regime of “pre-disc” lockdown against A.H. and his co-conspirators that sought to mitigate the risks all three aggressors might pose to A.L.
Nor does the final authority Ms. Contreras cites extensively, Junior v. Anderson, 724 F.3d 812 (7th Cir. 2013), clearly establish a constitutional violation under these circumstances. In that case, a corrections officer all but ignored the revelation that two cells that should have been secured remained unlocked. See id. at 813-14. After an inmate who should have been secured in one of these cells subsequently joined several others in attacking another prisoner, the Seventh Circuit reversed the district court‘s decision granting summary judgment to the corrections officer, who had also abandoned her post for at least fifteen minutes. See id. at 815.
In my view, the same differences that distinguish Erickson and Street from “the specific context of [this] case” also diminish the significance of Junior. See Mullenix, 136 S. Ct. at 308. Although the record discloses that Officer Casado and Cadet Platero may have realized that the control panel remained unsecured, only one detainee—A.H., who was subject to “pre-disc” lockdown—was present in the common area. And all three corrections officers remained just steps away from their charge, as well as the electronic control panel.
It is, of course, true that some “constitutional violation[s] may be so obvious that similar conduct seldom arises in our cases,” such that “it would be remarkable if the most obviously unconstitutional conduct should be the most immune from liability only because it is so flagrantly unlawful that few dare its attempt.” Lowe v. Raemisch, 864 F.3d 1205, 1210–11 (10th Cir. 2017) (citations and quotation marks omitted). But we have construed this functional exception to the presumption against fair notice quite narrowly, as we must effectively conclude “our precedents render the legality of the conduct undebatable.” See id. at 1211 (citing Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016)). This is not such a case.
In sum, no authorities clearly establish a constitutional violation under these circumstances.
III. Conclusion
For the reasons previously articulated, I would affirm the district court’s decision to grant summary judgment in this matter.
CARSON, J., Concurring in part and concurring in the judgment
Make no mistake. We expect corrections officers to protect those under their supervision—especially
Plaintiff credibly argues that the officers’ conduct violated A.L.’s constitutional rights. She presents a strong case against the supervisor—Officer Luna. After all, he knew that inmates previously accessed the control panel to commit violence against one another. But the other officers did not share Luna’s prior knowledge. So the case against them is not so clear.
Even so, I would not reach the constitutional question because, even if the officers violated A.L.’s constitutional rights, those rights were not clearly established. When our body of caselaw contains no case with remarkably similar facts, we look to a “sliding scale” analysis to determine whether clearly established law prohibited an officer’s conduct. Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Under the sliding scale, the worse the conduct given prevailing constitutional principles, the less specificity is required from prior caselaw to clearly establish the violation. Id.
Some recent decisions suggest the sliding scale approach may conflict with current Supreme Court authority, but no case has overruled it. See Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10 (10th Cir. 2017) (noting our sliding scale approach may allow us to find a clearly established right even when a precedent is neither on point nor obviously applicable); Aldaba v. Pickens, 844 F.3d 870, 874 n.1 (10th Cir. 2016). With no case overruling it, the sliding-scale approach lives in this Circuit. But that said, we must apply it cautiously as contemporary Supreme Court cases require an ever-increasing level of factual similarity for prior decisions to place a statutory or constitutional question beyond debate.1 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasizing that Court has repeatedly told lower courts not to define clearly established law at a high level of generality).
I view this case as exceedingly close on both prongs of the qualified immunity analysis. Ultimately, however, I сonclude the precedents from this Circuit and the Supreme Court do not place the constitutional question beyond debate (even considering the sliding scale approach). Plaintiff’s claims must therefore fail against the individual officers. So I join Chief Judge Tymkovich’s opinion as far as it addresses the “clearly established” prong of the qualified immunity analysis. Because I would not reach the constitutional question, I join neither Judge Baldock’s nor Judge Tymkovich’s well-presented analysis of that issue.
That leaves Plaintiff’s Monell claim against the Board. The district court determined that Plaintiff’s claim against the Board failed as a matter of law because she did not satisfy the third element for municipal liability—deliberate indifference.
Whether a municipal policymaker can be liable for deliberate indifference to a constitutional right that has not yet been established is an interesting one. And the answer depends on the type of claim alleged against the municipality. Consider first a claim based directly on a municipal act such as the termination of a municipal employee without due process. In that case, “the violated right need not be clearly established because fault and causation obviously belong to the city.” Arrington-Bey, 858 F.3d at 994–95.
But then consider a claim based on a municipality’s failure to properly train its employees. There, the theory stems from the municipality’s failure to teach its employees not to violate a person’s constitutional rights. In that posture, the “municipality’s alleged responsibility for a constitutional violation stems from an employee’s unconstitutional act [and the municipality’s] failure to prevent the harm must be shown to be deliberate under ‘rigorous requirements of culpability and causation.’” Id. at 995 (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 415 (1997)). Thus, the violated right in a failure to train case “must be clearly established because a municipality cannot deliberately shirk a constitutional duty unless that duty is clear. Id. The Second, Sixth, and Eighth Circuits have each reached this conclusion. Townes v. City of New York, 176 F.3d 138, 143–44 (2d Cir. 1999); Arrington-Bey, 858 F.3d at 995; Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en banc).
Judge Baldock believes that in application this means the district court inappropriately granted the Board qualified immunity. I agree that municipalities cannot invoke the doctrine of qualified immunity. Owen v. City of Independence, 445 U.S. 622, 624–25 (1980) (holding that municipalities cannot assert the doctrine of qualified immunity). But this case differs remarkably from Owen. Owen arose from a claim of deliberate municipal indifference where the municipality directly caused the constitutional injury. Id. at 633. Here, by contrast, Plaintiff advances a failure to train theory in which she “must show not only that an employee’s act caused a constitutional tort, but also that the city’s failure to train its employees caused the employee’s violation and that the city culpably declined to train its ‘employees to handle recurring situations presenting an obvious potential for such a violation.’” Arrington-Bey, 858 F.3d at 995 (citing Brown, 520 U.S. at 409). The Supreme Court’s statement “obvious potential for such a violation” requires that the constitutional violation be obvious (i.e., clearly established). Requiring that the right be clearly established in this context does not give qualified immunity to municipalities; it simply follows the Supreme Court’s demand “that deliberate indifference in fact be deliberate.” Arrington-Bey, 858 F.3d at 995 (citing Szabla, 486 F.3d at 394).
Plaintiff alleged the County engaged in deliberate indifference by failing to adequately train its correction officers. For the reasons discussed above, however, Plaintiff’s claim must fail because she cannot show the right the Board violated was obvious. I would therefore affirm the district
For these reasons, I respectfully concur in part and concur in the judgment.
BALDOCK, Circuit Judge, concurring in part, dissenting in part.1
Corrections officers cannot absolutely guarantee the safety of those in their care. Nor does the Constitution sweep so broadly as to require every cell in a detention center to always remain locked for the protection of its guests. But after violent threats have been made by a group of particularly violent detainees, any reasonable official cognizant of his duty to protect would know that the failure to secure the control panel while a would-be assailant is outside his cell is objectively unreasonable.
As my colleagues accurately point out, qualified immunity protects “all but the plainly incompetent.” Concurring Op. at 13 (Tymkovich, C.J.) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). Because Sergeant Luna’s conduct was plainly incompetent, qualified immunity should afford him no shelter. And because Doña Ana County Detention Center (DACDC) was deliberately indifferent to a pattern of tortious conduct by its employees, it cannot be shielded from liability on the ground that A.L.’s asserted constitutional right was not clearly established. For these reasons, I would reverse the district court’s grant of summary judgment to Sergeant Luna and the DACDC and remand for further proceedings. I therefore respectfully dissent.
I.
The historical facts relevant to this appeal, unlike the inferences to be drawn from them, are undisputed.2 On the evening of May 3, 2016, officials booked A.L., then fourteen years old, into the DACDC after he allegedly violated his probation by disregarding his curfew. At the time of A.L.’s detention, the three juveniles responsible for the forthcoming attack on him, J.V., J.S., and A.H., were also detained at the DACDC. All three juveniles hаd exhibited disciplinary problems just days and hours prior to their attack on A.L.
On April 25, 2016, for example, J.S. attacked another juvenile detainee in the dayroom “by punching him several times in the face.” Three other detainees were soon attacking the victim as well. J.S. stated he attacked the victim because he “had been talking shit the day before.” DACDC officials placed J.S. on “pre-disciplinary lockdown” (pre-disc) for his aberrant behavior.
A.H was also placed on pre-disc on April 22. A DACDC caseworker’s notes on A.H. indicate that on April 25 “[p]er Sgt. Luna[,] [A.H.] is not able to go to medical
When A.H. was taken off pre-disc on April 30 and allowed to leave his cell, he wasted no time in yelling out “it’s time to get on lockdown again.” Moments later, A.H. approached a table in the dayroom where J.V. sat with J.S. and said something to J.S. At this point, J.V. and A.H. began to argue. J.V. then stood up and “went towards [A.H.] and began punching him in the face and head with closed fists. [A.H.] . . . punched back with closed fists.” After officers separated the two miscreants and medical staff cleared A.H., he returned to the dayroom. There, A.H continued his disruptive behavior by yelling “obscenities and gang slurs toward [J.V.],” causing yet another fight. J.V. reported the fight broke out because “[A.H.] kept talking ‘shit’ to him and . . . went after him.” As a result of their altercation, both J.V. and A.H. were placed on pre-disc.
Following lockdown around 9:30 p.m. on May 3, the evening before the attack on A.L., the three soon-to-be assailants, all fresh off pre-disc, once again became disruptive. J.V. began banging on his cell door, broke his county-issued cup and deodorant stick, and covered his cell window with his mattress and sheets. Even after the officer on duty uncovered J.V.’s window, he continued to bang and kick on his door. Around 10:15 p.m., J.S. and A.H. joined J.V. and began kicking on their cell doors. The juveniles refused to discontinue their disruptive behavior.
Around 10:22 p.m., officials brought A.L. into the juvenile pod’s dayroom. The dayroom is surrounded by two levels of individual cells. J.V., J.S., and A.H. were housed separately on the pod’s second level. When A.L. entered the dayroom, the trio began yelling at A.L., telling him they were going to “fuck him up.” A.L. was placed in a cell on the second level near the others. As a result of their disruptive behaviors and threats, J.V., J.S., and A.H. were again placed on pre-disc. While on pre-disc, the three juveniles were to be confined to their cells except when they were individually permitted to engage in recreation time, shower, use the phone, and access the commissary kiosk. None of the three were allowed out of their cells while any one of the others or A.L. was out of his cell.
Shortly after 9:00 a.m. the next morning, A.H., still on pre-disc, was alone outside his cell. He had just finished showering in the shower room located on the north side of the dayroom. Consistent with their placement on pre-disc the night before, J.V. and J.S. remained locked in their cells, as did A.L. Defendants, Sergeant Luna, Officer Casado, and Cadet Platero, were sitting at tables in the juvenile pod’s dayroom watching television. Officer Casado, who had been employed at the DACDC for just over a year, was the assigned dayroom officer. Sergeant Luna, the supervising officer, had been employed at the DACDC for twenty-three years. Cadet Platero had been employed at the DACDC for just over twо months.
All three Defendants knew J.V., J.S., and A.H. had threatened to assault A.L. the night before and were on pre-disc as a result. The record is unclear as to whether Casado or Platero were aware of the precise nature of the trio’s recent disciplinary problems at the DACDC, but Defendants’ response brief tells us they knew the three were “generally violent.” The brief also tells us Sergeant Luna knew the three had “histories of assault at DACDC.” And Sergeant
Located on the juvenile pod’s west wall in front of where the individual Defendants were sitting was a commissary kiosk. Five to ten feet left of the kiosk, on a podium referred to as the “Officers’ Platform Station,” was a control panel used to electronically lock and unlock the juvenile pod’s cell doors. The control panel is a touchscreen device that allows an officer to lock or unlock individual cell doors with the touch of a button after entry of a security code or password. Officers may log off or lock the panel with the touch of a button rendering it ineffective until someone with a security code once again logs in.
The closest thing in the record to a written DACDC policy about locking the control panel is found in a code of ethics contained in the “Standard Operating Procedures” manual for the DACDC. The code provides:
- If an officer is going to leave his workstation, it must either be locked or the officer must log off.
- If an officer happens to come upon a workstation that was left open and unlocked by another user, it is the officer’s responsibility to log that user off and log in under their username and password if they are going to use it.
After showering, A.H. asked Sergeant Luna for permission to access the commissary kiosk. Sergeant Luna granted permission. On a security tape, one sees J.V. and J.S. standing in their second-level cells watching events transpire in the dayroom. As A.H. approached the kiosk, he looked over his shoulder to see if any of the Defendants were paying attention. They were watching TV. When A.H. sensed his opportunity, he approached the control panel, which he obviously suspected might be unlocked (he was right), and proceeded to open J.V.’s, J.S.’s, and A.L.’s cell doors.
J.V. and J.S. immediately exited their cells and ran into A.L.’s neighboring cell, closing the door and causing it to lock behind them. Making good on their threats, J.V. and J.S. began to beat A.L. A.H. avoided Officer Casado’s pursuit, ran up the stairs, and locked himself in his own cell while the chaos ensued. Sergeant Luna and Officer Casado ran upstairs to A.L.’s cell. Cadet Platero opened A.L.’s cell from the control panel down below. When J.V. and J.S. refused to stop beating A.L., Sergeant Luna doused the two with pepper spray. A.L. was transported to the hospital. As a result of the attack, he suffered a broken jaw, was rendered unconscious, and was left bleeding from both ears.
The day after the attack on A.L., Lieutenant Mendoza of the DACDC’s Professional Standards Unit interviewed Sergeant Luna and Officer Casado. Officer Casado said this about securing the control panel in the juvenile pod:
[Casado] did confirm that the control panel can be locked if needed but that he does not remember if he locked it in this instance. He stated that he believes nobody on his shift logs off from the panel as normal practice when he walks away from the officers’ podium. He stated that since he has been assigned to juvenile . . . he has never been directed to log off the panel. He did confirm that hе was the last person at the officers’ podium before the incident occurred.
Sergeant Luna disagreed with Casado, however, when Mendoza questioned him about control panel procedures in the juvenile pod:
I questioned [Sgt. Luna] regarding whether or not officers on his shift are locking the control panel when they locate themselves away from the podium. He stated that it is common practice for
staff on his shift
to lock the panel but that he was not watching to see if Casado locked it in this instance. He stated that he has to assume that Casado would have locked it as other officers do, but he does not stand next to all officers each time they move away from the podium. He stated that ever since juvenile had been moved to the adult side, there was never a directive given to him about locking the panel although it was getting done.
Rather than submitting to an interview the day after the incident, Cadet Platero drafted a memorandum in which she indicated that “when she observed Officer Casado get up from his post at the officers’ podium to sit at the table, she noticed that he did not lock the control panel that opens each cell in the dayroom.” During an interview with Lieutenant Mendoza about three weeks after the incident, Platero confirmed that she witnessed “Officer Casado walk away from the officers’ podium without locking the control panel.”
Notably, in an affidavit executed two months after the attack on A.L., Officer Casado changed his story. Casado now attests that during his training at the DACDC, he was “specifically” told (I wonder by whom) that the policy of the DACDC was to log out of the control panel after he used it, rendering the control panel ineffective until someone with a security code once again logged in. Casado says he was “never” instructed nor allowed to leave the control panel unlocked.
Cadet Platero similarly attests that during her training she was instructed (I wonder by whom) on the use of the control panel: “I was trained that I should always lock or log out of a control panel before leaving it. Before the incident, I saw Casado leave the control panel unlocked which I knew to be a policy violation, but I did not alert anyone.” Sergeant Luna attests that he instructs all officers under his supervision “to lock all pods’ control panels, including the juvenile pod.” Sergeant Luna states he has “never” instructed a cadet or detention officer to leave the control panel unlocked at the DACDC; nor is he aware of any other sergeants or supervising officers ever having done so.
Importantly, A.H.’s unauthorized use of the unlocked control panel was not the first time a detainee at the DACDC had improperly accessed the control panel in the juvenile pod’s dayroom. Juvenile detainees had accessed the control panel on at least four prior occasions beginning in October 2014, or about eighteen months prior to the attack on A.L. On October 25, 2014, a detainee insisted on crossing his body over the “red line” in front of the control panel. After being warned, the detainee again crossed the red line and leaned his body against the control panel. As a result, DACDC officials placed him on pre-disc. The fourth incident was much like the first. On February 12, 2015, a juvenile detainee at the DACDC “kept crossing the red line and laying [his] hands on the control panel.” When the detainee crossed the line and touched the control panel a second time, he too was placed on pre-disc. The incident report lists Sergeant Luna as the juvenile pod’s supervising оfficer at the time of this infraction.
Unfortunately, the second and third incidents involving a juvenile detainee’s unauthorized access to the control panel were not so harmless. The similarities between those two incidents and the incident at issue are substantial. Less than a month after the first incident, on November 23, 2014, a juvenile detainee asked the officer on duty to retrieve a mop from the dayroom closet. When the officer did so, a second detainee accessed the dayroom’s control panel, which was unlocked, and opened the cells of a third and fourth detainee. The third detainee then ran from
A third incident occurred on January 20, 2015. On that date, a juvenile detainee attacked another detainee in the latter’s cell. The assailant told officials that “he went towards the officers’ desk, crossed the red line and opened the other detainee’s cell by pushing a button on the dayroom [control] panel.” The assailant admitted he went into the victim’s cell and threw the first punch because the victim had called him a “snitch.” According to the incident report, both detainees were placed on pre-disc and the “dayroom panel was disabled due to this incident.” When the control panel in the juvenile pod again became operational is unclear from the record—certainly too soon from A.L.’s perspective.
II.
To survive summary judgment as to Defendants’ individual liability under
A.
In determining whether A.L.’s constitutional rights were violated, we must view the evidence in the light most favorable to Plaintiff and refrain from resolving factual disputes in favor of the individual Defendants (i.e., the parties seeking summary judgment). See McCoy v. Meyers, 887 F.3d 1034, 1044–45 (10th Cir. 2018). When all the evidence is properly considered under this standard, a reasonable jury could find Sergeant Luna was deliberately indifferent to the substantial risk of harm with which J.V., J.S., and A.H. had threatened A.L.
1.
The point of departure for our inquiry into whether any of the individual Defendants caused A.L. to suffer a constitutional deprivation is the Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825 (1994). Farmer established that the Eighth Amendment’s prohibition against cruel and unusual punishment imposes a duty on officials to provide prisoners with “humane conditions of confinement.” Id. at 832. Prison officials who are aware of a substantial risk to an inmate’s safety have a duty to protect the inmate from harm and therefore must take reasonable steps to guarantee his safety. Id. at 832–33.
But of course, absent a formal adjudication of guilt against A.L., the Eighth Amendment has no application. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Nevertheless, “[i]n evaluating the constitutionality of conditions . . . of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, . . . the proper inquiry is whether those conditions amount to punishment of the detainee.”
Id. at 535. To determine whether the evidence is sufficient
Before a jury may find an individual Defendant violated A.L.’s right to due process, Plaintiff must satisfy two elements: one objective and one subjective. Farmer, 511 U.S. at 834. To satisfy the objective component, Plaintiff must show A.L. was detained “under conditions posing a substantial risk of serious harm.” Id. If Plaintiff satisfies this objective prong, she must then establish that at least one of the individual Defendants was deliberately indifferent to the substantial risk A.L. faced. Id. This is a subjective inquiry. Id.
While “deliberate indifference entails something more than mere negligence, . . . it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. “[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot . . . be condemned as the infliction of punishment.”3 Id. at 838. In short, “deliberate indifference is equivalent to recklessness in this context.” Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006).
2.
On this record, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that A.L. faced an “objective ‘substantial risk of serious harm.’” Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (quoting Farmer, 511 U.S. at 834). When DACDC officials escorted A.L. to his cell the night before the attack, three juvenile detainees with very reсent histories of disciplinary problems involving violent encounters at the DACDC, and housed in close proximity to A.L., directly threatened to “fuck him up” while raising a ruckus. As a result, the three juveniles, each of whom could turn violent with little warning, had been placed on pre-disc precisely to alleviate a substantial risk of serious harm to A.L., themselves, and others.
According to Defendants and Chief Judge Tymkovich, these circumstances did not present a substantial risk of harm because the juvenile assailants were placed on pre-disc and three corrections officers were present—physically, at least—in the dayroom when the attack occurred. Based on these “precautions,” Defendants maintain that an unsecured control panel cannot, as a matter of law, result in
Because the kiosk and control panel were in such close proximity, and J.V.’s, J.S.’s, and A.L.’s cells were far removed from the control panel, a dozen DACDC guards in the dayroom watching TV would not have prevented A.H. from rushing the control panel and pushing the few buttons necessary to unlock the cell doors and facilitate the attack on A.L. After all, what did A.H. have to lose? Another placement on pre-disc? The facts well illustrate that A.H. could not have cared less whether he was on pre-disc. He was on pre-disc repeatedly. Under these circumstances, branding the attack on A.L. as the culmination of a “cascade of unlikely events” and labeling the risk he faced as “attenuated,” see Concurring Op. at 7–8 (Tymkovich, C.J.), wholly ignores both the reality of the situation presented and the reality of involuntary detention.
Defendants further argue the fact the three assailants, after threatening A.L., had been placed on pre-disc with its accompanying restrictions illustrates reasonable measures were taken to avert the attack. The question, however, is not whether placing the three miscreants on pre-disc was a reasonable thing to do. It surely was given the trio’s recent unruly and violent behavior at the DACDC. But pre-disc is nothing more than a label. Its terms must be enforced by reasonable and appropriate measures.
The central question here is whether the individual Defendants acted reasonably by leaving the control panel unsecured given the circumstances described above. Placing the three juveniles on pre-disc and “segregating” them from each other and A.L. could not alone ensure A.L.’s safety if such segregation was not maintained through the implementation of reasonable measures such as securing the cell doors. “In determining whether prison officials acted reasonably, we consider what actions they took, if any, as well as available alternatives that might have been known to them”—like securing the juvenile pod’s control panel precisely because the assailants were on pre-disc for threatening A.L. with bodily harm. Howard, 534 F.3d at 1240.
A.H. was a known problem with a recent history of violent outbursts at the DACDC. In fact, just one week before the attack on A.L., Sergeant Luna reported it was not safe to take A.H. out of his cell. Half
Defendants’ delayed reactions when A.H. rushed the control panel, as the video of the incident shows, belies any claim that the corrections officers “observed his movements from their perch[.]” See Concurring Op. at 7–8 (Tymkovich, C.J.).
Just as the effectiveness of prison segregation depended on keeping cell door keys out of the hands of would-be assailants prior to advances in technology, the effectiveness of the segregation in this case depended on the control panel being locked and inaccessible—a wholly unremarkable proposition. As Defendants admit in their brief:
“Excluding the unlocked control panel and [A.H.‘s] access to it, DACDC‘s preventative discipline and supervision were reasonable.” (emphasis added).
With that much I agree. Thus, I would conclude that Plaintiff has created a triable issue as to whether the individual Defendants disregarded the substantial risk of serious harm A.L. faced “by failing to take reasonable measures to abate it.” See Farmer, 511 U.S. at 847.
3.
The next question is whether a reasonable jury could find any of the individual Defendants recklessly disregarded the risk of serious harm to A.L. when the control panel was left unlocked and accessible to A.H. on the morning of the attack. A jury cannot decide a detention center official‘s failure to protect a victim amounted to deliberate indifference if they preliminarily find he or she failed to perceive the significant risk of harm to the victim, no matter how objectively obvious. Id. at 838. Where the risk is obvious such that a reasonable person would realize it, a jury certainly may infer that a defendant did in fact realize it. Id. at 842. Such an inference cannot be conclusive, however, “for we know that people are not always conscious of what reasonable people would be conscious of.” Id. (quoting 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.7, p. 335 (1986)).
Although it is an extremely close call, I would conclude that Plaintiff has failed to carry her burden on the subjective prong with respect to Officer Casado and Cadet Platero. To be sure, sufficient evidence exists to conclude these Defendants knew they were required to keep the control panel locked when not in use. Cadet Platero also knew that Officer Casado‘s failure to secure the panel was a violation of DACDC policy because she was trained (who trained her she does not say) to lock the panel before leaving it. And of course, any reasonable person would realize it is unsafe to leave a control panel unlocked in a juvenile detention center at any point—much less after violent threats have been made.
But what is missing from the calculus is evidence that these junior officers were aware of facts from which the inference could be drawn, and also drew the inference, that leaving the control panel unlocked posed a serious risk of harm to A.L. See id. at 837–38. Nothing suggests, for example, that either of these corrections officers were aware of the past incidents at the DACDC where detainees accessed the unsecured control panel and opened the cell doors to attack other detainees. Although Officer Casado and Cadet Platero indisputably acted negligently—and, in my view, with gross negligence—their nonfeasance ultimately falls short of deliberate indifference.
The same cannot be said for Sergeant Luna, however. Based on the conflicting record evidence, a jury could infer that Sergeant Luna was aware the control panel was unlocked at the time of thе attack
A reasonable jury could further infer that, as a DACDC sergeant with supervisory responsibilities and direct knowledge of one prior incident, Luna was aware of past problems surrounding operation of the control panel in the juvenile pod. On two previous occasions within the past eighteen months, juvenile detainees accessed an unlocked control panel in order to precipitate attacks on other detainees—the same unfortunate scenario we face here. Notably, the second of these two incidents prompted DACDC officials to disable the control panel in the juvenile pod for an unspecified time period. Sergeant Luna must have known that the control panel in the juvenile pod was disabled for a time precisely because of these attacks given his supervisory position at the DACDC. Moreover, Sergeant Luna was the supervising officer in the juvenile pod on a subsequent occasion when a detainee approached the control panel and, as a result, was placed on pre-disc.
The past incidents involving the сontrol panel at the DACDC cannot be dismissed as too remote from and dissimilar to the facts presented here to bear on Sergeant Luna‘s state of mind. It is true that the first incident involved two detainees outside their cells, whereas A.H. was the sole detainee permitted in the dayroom at the time of the attack on A.L. But this begs the question: How many juvenile detainees does it take to access an unsecured control panel and push a button or two? If past incidents at the DACDC are any indication, two may be better, but one is enough.
Indeed, the January 20, 2015 incident involved a single detainee who accessed the control panel, opened another detainee‘s cell, and then proceeded to assault his fellow detainee in the latter‘s cell. Because the record does not provide any additional details, Chief Judge Tymkovich attempts to discount this incident by summarily “conclud[ing] the same logic that undermines the applicability of the previous incident to the assault on A.L. applies to this incident.” Concurring Op. at 10 (Tymkovich, C.J.). Properly viewing the evidence in the light most favorable to Plaintiff, however, leads to the opposite conclusion—that is, the similarities between this incident and the incident at issue are substantial. See McCoy, 887 F.3d at 1044–45 (explaining we must consider the facts and all inferences in the light most favorable to the party asserting the injury).
Last, but not least, don‘t forget about Sergeant Luna‘s particular knowledge regarding A.H.‘s violent propensities. Recall that Sergeant Luna specifically was aware, as illustrated by the DACDC caseworker‘s April 25 notes, that A.H. was especially dangerous and could not be trusted outside his cell. Yet, rather than keep an eye on A.H. while he roamed free in the dayroom, Sergeant Luna decided to watch TV. Based on Sergeant Luna‘s dеlayed reaction after A.H. accessed the control panel, there must‘ve been a good show on that morning.
As John Adams once reminded us: “Facts are stubborn things; and whatever may be our wishes, inclinations, or the
B.
This brings me to the second part of our qualified-immunity analysis. My colleagues conclude that Sergeant Luna is entitled to qualified immunity even if he violated the
1.
Whether Sergeant Luna may be held liable for his wrongdoing at this point turns on the “objective legal reasonableness” of his conduct assessed in light of (1) the factual context of this case and (2) the legal rules that were “clearly established” at the time of the attack. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (facts); Anderson v. Creighton, 483 U.S. 635, 639 (1987) (rules). Sergeant Luna has nothing to worry about if his “actions could reasonably have been thought consistent with the [rules] [he] [is] alleged to have violated.” Anderson, 483 U.S. at 638.
In every case, we first look for a Supreme Court or Tenth Circuit decision on point to determine whether the legal rule under which a plaintiff seeks to hold a defendant liable is clearly established. Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009). Absent any such decision, we consider whether the clearly established weight оf authority from our sister circuits holds the rule to be as the plaintiff maintains. Id. Neither the Supreme Court nor this Court, however, has ever required “the very action in question” to have “previously been held unlawful.” Anderson, 483 U.S. at 640; Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (“[A] prior case need not be exactly parallel to the conduct here for the officials to have been on notice of clearly established law.“). Instead, “in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640.
To be sure, prior decisions involving similar facts provide strong support for a conclusion that the law was clearly established. This is why, in most cases, “like” decisions are necessary before we reach such a conclusion. They are not necessary in every case, however, because the Supreme Court has told us that “general statements of the law are not inherently incapable of giving fair and clear warning” to reasonable persons. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
Hope recognized that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has not previously been held unlawful.‘” Id. (quoting Lanier, 520 U.S. at 271). Such recognition was possible because, in Hope, the Court “shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put officials on fair
While “like cases” undoubtedly bear upon “fair notice,” the relevant standard in ascertaining “clearly established law” is the latter, not the former. The qualified-immunity standard simply does not call for a “single level of [rule] specificity sufficient in every instance.” Hope, 536 U.S. at 740 (quoting Lanier, 520 U.S. at 271); see also Cordova, 569 F.3d at 1192. Rather, the precedent on which a court relies to conclude the law was clearly established need only “be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (emphasis added).
Throughout the development of the “clearly established law” standard, the Supreme Court has stressed that the specificity of the rule is especially important in
Because every
My colleagues’ reservations about our sliding-scale approach comes as no surprise given the Supreme Court‘s recent qualified-immunity decisions. The Court‘s slew of per curiam reversals in the past five years—nearly all of which concern the use of excessive force—appears to have most circuit courts tiptoeing around qualified immunity‘s clearly established prong. But as Judge Carson recognizes: “With no case overruling it, the sliding-scale approach lives in this Circuit.” Concurring Op. at 2 (Carson, J.). Until either this Court or the Supreme Court sounds the death knell for our sliding-scale approach, we are bound to apply it rather than merely pay lip service to it.4
With this understanding of the applicable standard in mind, let‘s consider whether Sergeant Luna is entitled to qualified immunity. Four decades ago, this Court held that the
No one can reasonably dispute post Farmer and its progeny that once Sergeant Luna learned of the substantial risk of harm to A.L. from the assailants’ threats and subjectively perceived such threats, he had a duty to take reasonable measures to protect A.L. Thus, the rule under which Plaintiff seeks to hold Sergeant Luna liable is just this: When a detention center officer knows a detainee faces a substantial risk of serious harm from another detainee yet fails to employ reasonable available measures to lessen the risk, the officer breaches his or her constitutional duty to protect the vulnerable detainee.
But the fact a constitutional duty to protect arises in the face of an officer‘s knowledge does not mean it is necessarily clear in every case, or even most cases, what reasonable measures consist of or, in other words, what such duty to protect specifically requires of the officer. See, e.g., Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (holding an inmate‘s right to proper suicide screening procedures during booking was not clearly established). The salient question here is whether this rule was sufficiently specific in the factual context of this case to give Sergeant Luna fair warning that his failure to secure the control panel could give rise to constitutional liability. Mullenix, 136 S. Ct. at 308 (explaining courts must undertake the clearly established inquiry in light of the specific context of the case).
Here, viewing the facts in the light most favorable to Plaintiff, Sergeant Luna was aware: (1) J.V., J.S., and A.H. had been placed on pre-disc for collectively threatening A.L. less than twelve hours earlier; (2) the three assailants were generally unruly and willing to fight; (3) the three assailants were to be kept away from one another and from A.L. until further notice; (4) the three assailants would be allowed outside their cells daily but only with restrictions; (5) A.H. was outside his cell and in the dayroom just prior to the attack; (6) A.H. could not be trusted outside his cell; (7) the control panel securing the cells had
The constitutional question here is beyond “beyond debate.” Wesby, 138 S. Ct. at 589. Mindful that qualified immunity does not protect “the plainly incompetent,” Kisela, 138 S. Ct. at 1152, the unlawfulness of Sergeant Luna‘s conduct in failing to secure the control panel follows immediately from the rule that corrections officers must employ reasonable measures to mitigate a known risk of serious harm to a threatened detainee.5 “After all, some things are so obviously unlawful that they don‘t require detailed explanation . . . .” Browder, 787 F.3d at 1082.
The clearly established standard for determining whether an official has violated a detainee‘s right to reasonable protection from a known risk of serious harm “is not extremely abstract or imprecise under the facts alleged here, but rather is relatively straightforward and not difficult to apply.” A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1198–99 (10th Cir. 2019); see also Pauly, 137 S. Ct. at 552 (explaining the requirement that clearly established law be “particularized to the facts of the case” is intended to shield officers from liability based on alleged violations of “extremely abstract rights“). Put differently, this rule is sufficiently specific to have put Sergeant Luna on notice that his failure to ensure the control panel was secure violated A.L.‘s constitutional right to protection from violence at the hands of J.V., J.S., and A.H. Because any reasonable corrections officer in Sergeant Luna‘s position would have known his conduct violated A.L.‘s asserted right, Luna should not be entitled to qualified immunity.
III.
Finally, I turn to Defendant DACDC‘s “municipal” liability. Plaintiff focuses her constitutional claim of municipal liability on a failure-to-train theory. To prevail against the DACDC under this theory, Plaintiff must show (1) a municipal employee committed a constitutional violation against A.L. and (2) a DACDC policy or custom was the moving force behind such violation. Cordova, 569 F.3d at 1193. As noted above, a jury could conclude that Sergeant Luna violated A.L.‘s
A.
In City of Canton v. Harris, 489 U.S. 378, 380 (1989), the Supreme Court held
To establish a municipality‘s deliberate indifference under a failure-to-train theory, a plaintiff usually must show a “pattern of tortious conduct.” Bryson v. City of Oklahoma City, 627 F.3d 784, 789 (2010). Decisionmakers’ “continued adherence to an approach they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference‘—necessary to trigger municipal liability.” Brown, 520 U.S. at 407. In addition, such a pattern “may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the ‘moving force’ behind the plaintiff‘s injury.” Id. at 408.
In Canton, however, the Supreme Court acknowledged “thе possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.” Brown, 520 U.S. at 1391; accord Canton, 489 U.S. at 390 & n.10. Violent encounters between detainees “may be a highly predictable or plainly obvious consequence” of the DACDC‘s failure to train its officials on the fundamentals necessary to address recurring situations like threats of violence or more specifically how, in the presence of such threats, to secure the control panel when not in use. Bryson, 627 F.3d at 789; cf. Canton, 489 U.S. at 396–97
The district court concluded Plaintiff failed to establish a pattern of tortious conduct surrounding the control panel and therefore DACDC officials would not have understood their failure to train officers on appropriate control panel protocol was substantially certain to result in a constitutional violation. Nonsense. Detainees on four separate occasions within eighteen months of the attack on A.L. inappropriately accessed the control panel in the juvenile pod‘s dayroom. Fortunately, on the first and fourth occasions no harm resulted. Nonetheless, DACDC officials placed the culprits on pre-disc precisely because they realized such conduct was unacceptable and wrought with peril. On the second and third occasions, neither DACDC officials nor targeted detainees were so fortunate. Rather, targeted detainees were ruthlessly attacked and beaten because the control panel had been left unlocked. These four occasions considered in the aggregate were sufficient to place DACDC officials on notice that an unsecured control panel in the juvenile pod may result in problems of constitutional proportions for the DACDC, making the questions of causation and deliberate indifference in this case for the jury.
B.
One final point deserves clarification. Relying on cases from our sister circuits, the district court alternatively concluded that because a failure-to-train claim requires a showing of deliberate indifference on the part of the DACDC, Plaintiff must also show the asserted right was clearly established at the time of the attack. See Arrington-Bey v. City of Bedford Heights, 858 F.3d 988 (6th Cir. 2017); Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007) (en banc); Townes v. City of New York, 176 F.3d 138, 143 (2d Cir. 1999). Judge Carson accepts this approach. I have my doubts.
To be sure, not all Monell claims are created equal. But neither are all failure-to-train theories. As explained above, the Supreme Court has distinguished deliberate-indifference claims based on “a pattern of tortious conduct by inadequately trained employees” from those based on “evidence of a single violation of federal rights.” Brown, 520 U.S. at 407–09; Canton, 489 U.S. at 390 & n.10. Brown‘s statement regarding an “obvious potential for such a violation” concerned the latter. 520 U.S. at 409; see also id. at 402 (“We granted certiorari . . . to decide whether the county was properly held liable for respondent‘s injuries based on Sheriff Moore‘s single decision to hire Burns.” (emphasis added)); id. at 415–16 (concluding that “Bryan County is not liable for Sheriff Moore‘s isolated decision to hire Burns without adequate screening” (emphаsis added)).
As this Court has explained, “deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a highly predictable or plainly obvious consequence of a municipality‘s action or inaction.” Schneider v. City of Grand Junction Police Dep‘t, 717 F.3d 760, 771 (10th Cir. 2013) (emphasis added; citation and brackets omitted). Conversely, when a deliberate-indifference claim is based on a pattern of tortious conduct by inadequately trained employees, a plaintiff need not also prove the underlying violation was obvious (i.e., clearly established). This is because the pattern of unlawful behavior puts a municipal policymaker on sufficient “notice that its action or failure to act is substantially certain to result in a constitutional violation[.]” Id. Thus, a municipality can manifest deliberate indifference even when its employee (i.e., the individual defendant) did not violate clearly established law.
The out-of-circuit authorities Judge Carson cites do not compel a contrary conclusion. In each of these cases, the plaintiff‘s deliberate-indifference claim was based on evidence of a single violation of federal rights, not a pattern of past tortious conduct by municipal employees. See, e.g., Szabla, 486 F.3d at 392–93 (“[T]his was a one-time incident, and there is no evidence of a pattern of constitutional violations making it ‘obvious’ that additional training or safeguards were necessary.“); see also Arrington-Bey, 858 F.3d at 990–92; Townes, 176 F.3d at 142. Indeed, Judge Colloton recognized this critical distinction in Szabla. 486 F.3d at 392-93.
Perhaps requiring the violated right to be clearly established is the proper approach when dealing with deliberate-indifference claims premised on an isolated constitutional violation. On the other hand, maybe not. Consider the following hypothetical, which is based on a recent Eleventh Circuit decision:
A municipal policymaker arms its pоlice officers with firearms because it knows the officers will sometimes need to arrest dangerous individuals. Yet, the municipality fails to train the officers regarding the lawful use of deadly force. During an investigation, an officer shoots a ten-year-old child lying on the ground within arm‘s reach of the officer, while repeatedly attempting to shoot a pet dog that wasn‘t posing any threat. The child‘s mother sues the officer for excessive force and also brings a Monell claim against the municipality for its failure to train the officer. A court holds, as the Eleventh Circuit did, that the officer is entitled to qualified immunity because his actions did not violate any clearly established rights. See Corbitt v. Vickers, 929 F.3d 1304, 1323 (11th Cir. 2019) (“Because we find no violation of a clearly established right, we need not reach the other qualified immunity question of whether a constitutional violation occurred in the first place.“), cert. denied, No. 19-679, 2020 WL 3146693 (U.S. June 15, 2020).
Applying the rule Judge Carson champions today, does this also “spell the end of th[e] Monell claim” against the municipality? See Arrington-Bey, 858 F.3d at 995. If the answer is “yes,” I fail to see how this deliberate-indifference standard doesn‘t effectively afford a form of vicarious immunity to municipalities. Cf. Hagans v. Franklin Cty. Sheriff‘s Office, 695 F.3d 505, 511 (6th Cir. 2012) (“Because Ratcliff did not violate a clearly established right, it follows that his employer, the Franklin County Sheriff‘s Office, is also entitled to summary judgment.“). In my view, these are dangerous waters. See Owen v. City of Independence, 445 U.S. 622, 650 (1980) (“[W]e can discern no ‘tradition so well ground in history and reason’ that would warrant the conclusion that in enacting [
Fortunately, we have no occasion in this case to lay down a categorical rule one way or the other because Plaintiff‘s deliberate-indifference
IV.
For the reasons stated above, I would affirm the district court‘s decision to grant summary judgment to Defendants Casado and Platero, but I would reverse the judgment with respect to Sergeant Luna and the DACDC and remand for further proceedings.
I respectfully dissent.