Rhelda HOSTETLER, Plaintiff-Appellee, v. Justin GREEN, Defendant-Appellant, Bonnie Drewery; Choctaw County, Oklahoma; Lewis Collins, Choctaw County Sheriff, Defendants.
No. 08-7029
United States Court of Appeals, Tenth Circuit
April 15, 2009
323 Fed. Appx. 653
Before LUCERO, O‘BRIEN, and GORSUCH, Circuit Judges.
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Robert S. Lafferrandre, Pierce Couch Hendrickson Baysinger & Green, Oklahoma City, OK, Randall James Wood, Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, OK, for Defendant-Appellant.
Andrew A. Artus, Jodi S. Casey, Chris J. Collins, Jamison C. Whitson, Collins Zorn & Wagner, Oklahoma City, OK, for Defendants.
ORDER AND JUDGMENT*
NEIL M. GORSUCH, Circuit Judge.
Rhelda Hostetler seeks damages from Justin Green pursuant to
I
Viewing the facts in the light most favorable to Ms. Hostetler, as we must, they reveal that on March 18, 2004, Ms. Hostetler was arrested for traffic violations and placed in Choctaw County jail. Mr. Green was a jailer employed by the Choctaw County jail. He began his shift that day аt 5:58 p.m., and worked until 6:10 a.m. the following morning. During the course of this shift, Mr. Green dropped off and picked up inmates’ food trays from their cells. Mr. Green was assisted in this task by a convicted male felon, Bonnie Drewery, who had been assigned to the Choctaw County jail by the Oklahoma Department of Corrections.
Sometime in the late evening, Mr. Green and Mr. Drewery began picking uр food trays from inmates’ cells. Although the cell doors had an opening for the placement and retrieval of food trays, it was Mr. Green‘s practice to open the cell door in order to deliver and retrieve those trays. Mr. Green and Mr. Drewery arrived at Ms. Hostetler‘s cell and Mr. Green opened her cell door and retrieved the food tray without entering her cell. After Mr. Green placed the tray on the cart, Mr. Drewery entered Ms. Hostetler‘s cell. Mr. Green asked Mr. Drewery three or four times to come out of the cell, but Mr. Drewery ignored these demands and remained inside Ms. Hostetler‘s cell. Mr. Green, who had other trays to collect and medication to deliver, pushed the cell door shut with Mr. Drewery still inside with Ms. Hostetlеr. Mr. Green contends that he left Mr. Drewery in Ms. Hostetler‘s cell for no longer than ten minutes. When he returned to her cell, he heard knocking. He opened the cell door and Mr. Drewery walked out. Mr. Drewery remarked to Mr. Green that Ms. Hostetler was “crazy,” but when asked what he had done in the cell, Mr. Drewery answered “nothing.”
Ms. Hostetler contends that Mr. Drewery raped her while he was in the cell. She testified that, after having two to three bites of her dinner, she went to sleep. When she awoke, Mr. Drewery was standing by her bed, but she did not know how he had gotten into her cell. She claims that Mr. Drewery prevented her from getting off the bed and then raped her. Ms. Hostetler was released from the jail the following day. Rita Duncan, the Choctaw County Jail Administrator, was present when Ms. Hostetler checked out and reported that Ms. Hostetler did not mention the sexual assault. Ms. Hostetler did, however, call the jail later that day and tell Ms. Duncan about the assault. Thereafter, the Oklahoma State Bureau of Investigation initiated a formal investigation. Mr. Green was subsequently terminated from his employment.
In due course, Ms. Hostetler filed a complaint against Mr. Green and other defendants pursuant to
In considering the claim against Mr. Green, the court began by reciting the standard Ms. Hostetler had to meet to establish a violation of her Fourteenth Amendment rights. First, she had to show that she was “incarcerated under conditions posing a substantial risk of serious harm.” Dist. Ct. Op. at 8 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Sec-
The district court next concluded that there were genuine issues of fact precluding the entry of summary judgment in favor of Mr. Green. In particular, the court found that there was suffiсient evidence in the record to support an inference that Mr. Green “subjectively appreciated the risk of harm to [Ms.] Hostetler in allowing [Mr.] Drewery to remain in her cell.” Id. at 8-9. The court explained:
The evidence suggests that Green was aware of the jail policy of not allowing male inmates access to cells in which females were held and of the rationale for suсh policy, i.e. inmate safety and protection from possible sexual assaults. Green suggests liability cannot be imposed on him absent knowledge on his part that Drewery posed a particularized threat to Hostetler, as opposed to the more generalized threat posed by allowing any male inmate to remain in a female inmate‘s cell. Thе Court rejects this construction of the standard set forth in Farmer and finds that the evidence presents a genuine issue of fact as to whether Green drew the inference that a substantial risk of serious harm to Hostetler existed when he allowed Drewery to remain unsupervised in Hostetler‘s locked cell for upwards of ten minutes.
Id. at 9.
II
Mr. Green now appeals the district court‘s deniаl of qualified immunity on two grounds. First, he argues that the facts, taken in the light most favorable to Ms. Hostetler, do not establish a violation of Ms. Hostetler‘s Fourteenth Amendment rights because they do not show that Mr. Green had the requisite subjective intent. Second, he argues in the alternative that the law was not clearly established at the time of the incident. At our direction, the parties filed jurisdictional briefs addressing whether the district court‘s decision denying qualified immunity was immediately appealable. We first address this jurisdictional issue before turning to the remaining merits of this appeal.
A
We have jurisdiction to revisit a district court‘s denial of a defendant‘s summary judgment motion based on qualified immunity “only to the extent that the appeal is based on an issue of law.” Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (10th Cir. 2009) (emphasis in original). Under this familiar exception to the final judgment rule, then, our role is limited to reviewing the district court‘s “abstract legal conclusions, such as whether the law was clearly established at the time of the alleged infraction.” Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir.2008). “At this stage, however, we are not at liberty to review a district court‘s factual conclusions, such as the existence of a genuinе issue of material fact for a jury to decide, or that a plaintiff‘s evidence is sufficient to support a particular factual inference.” Id. (emphasis added).
Under this rubric, our jurisdiction extends only over a subset of the questions Mr. Green asks us to consider on appeal. It is clear we have jurisdiction over the legal question whether the law was clearly established at the time of the alleged infraction. But whether we have jurisdiction over Mr. Green‘s argument that he did not
B
As always, we assess the district court‘s grant of summary judgment de novo, and view the facts, and all reasonable inferences those facts support, in the light most favorable to the non-movant. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir.2008). When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to demonstrate a violation оf clearly established law. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009).
We consider first Mr. Green‘s assertion that the district court impermissibly considered his violation of prison policy as a fact supporting the inference that he was subjectively aware of the risk under which he placed Ms. Hostetler. We entirely agree with him that “a failure to adhere to administrative regulations does not equate to а constitutional violation.” Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993) (citing Davis v. Scherer, 468 U.S. 183, 194 (1984)); see also Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996) (“[A] prison official‘s failure to follow the prison‘s own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.“). However, here the district court did not rely solely on a violation of prison policy as supporting an inference of delibеrate indifference. It pointed to Mr. Green‘s knowledge of the policy and his awareness of its rationale—“inmate safety and protection from possible sexual assaults“—as one fact, among many, supporting an inference about his subjective knowledge. Dist. Ct. Op. at 9. Surely a guard‘s knowledge that a policy was enacted specifically to prevent sexual assault, combined with his knowledge that he did violate that policy, tends to support—even if it does not mandate—an inference that he was aware of an increased risk of sexual assault to Ms. Hostetler when he violated the policy on this particular occasion. Cf. Hovater, 1 F.3d at 1068 (where rationale behind enactment of prison policy was unconnected to risk of sexual assault, violation of such a policy did not support an inference that a prison official had subjective knowledge of an increased risk of sexual assault); Goka v. Bobbitt, 862 F.2d 646, 652 (7th Cir.1988) (where rationale for prison policy—preventing inmate violence—is “evident on the face” of the policy, prison official‘s failure to enforce the policy can support a finding of deliberate indifference); Weatherholt v. Bradley, 316 Fed.Appx. 300 (4th Cir.2009) (unpublished) (reversing grant of summary judgment to prison official on inmate‘s Eighth Amendment claim where district court accorded insufficient weight to fact that official violated prison policy because it did not “adequately consider[] the rationale of the prison policy in question“). We thus reject Mr. Grеen‘s legal challenge to the district court opinion on this score.2
We turn next to consider whether the law was clearly established at the time of the alleged infraction. This inquiry “must be undertaken in the light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson, 129 S.Ct. at 818. “[T]here must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). Because qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law,” Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir.2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)), “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlaw-
Although Ms. Hostetler, as a pretrial detainee, asserts a right stemming from the Fourteenth Amendment Due Process Clause, Lopez v. LeMaster, 172 F.3d 756, 759 n. 2 (10th Cir.1999) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)), in determining whether her right was violated we apply an analysis identical to that applied in Eighth Amendment cases brought under
Affirmed.
NEIL M. GORSUCH
UNITED STATES CIRCUIT JUDGE