Perry v. DurborowPerry v. Durborow
Defendant Terry Durborow appeals the district court‘s order denying his motion for summary judgment on the basis of qualified immunity in this
Background
Plaintiff Taunya Perry was arrested and booked into the Ottawa County Jail (the Jail) on December 28, 2012. According to Perry, detention officer Daniel Clements raped her approximately two months later, on February 25, 2013.
As a result of the alleged rape, Perry brought suit against Durborow under
The district court denied Durborow‘s motion. In doing so, the district court relied primarily on four factual findings. For purposes of resolving this interlocutory appeal, we accept these facts as true and recite them below. See Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014).
First, the district court noted that the Oklahoma Department of Health‘s “Jail Standards” prohibited male detention officers from entering the Jail‘s female pod unless there was “an emergency.” App. 565. Yet for much of Durborow‘s tenure as sheriff, the Jail hired only male detention officers. Thus, in the absence of any female
Second, citing the absence of any female detention officers, the district court inferred that Durborow was necessarily aware that the male detention officers were entering the female pod in non-emergency situations.
Third, the district court found that Durborow was also aware of “blind spots” in the Jail‘s video surveillance system: the system didn‘t monitor certain areas of the female pod, including the pod‘s individual cells, its showers, and its mechanical room. Id. at 577. These “blind spots” were also “known to inmates and detention officers.” Id.
Fourth, although Perry asserted that “there was a history of female inmates being sexually assaulted at [the] Jail and that Durborow was aware of these incidents,” the district court found insufficient evidence to support this assertion and therefore declined to consider it in determining whether Durborow was entitled to qualified immunity. App. 575. Instead, the district court seemed to credit Durborow‘s assertion that, as of February 25, 2013, Durborow “had received only one allegation of sexual misconduct by a jail employee during his tenure as Sheriff.” Id. at 568. Specifically, in 2008, “a female inmate alleged that she had been sexually assaulted” by a jail employee during her time there. Id. But the inmate later recanted, indicating that her allegation was the result of “a psychotic episode.” Id. Based on the inmate‘s “admission” and interviews with “approximately 20 witnesses,” the Oklahoma State
Relying on these findings, the district court ruled that a reasonable jury could conclude Durborow was “deliberately indifferent to the health and safety of [the Jail‘s] female inmates.” Id. at 578. And based on this conclusion, the district court then determined that Durborow wasn‘t entitled to qualified immunity because (1) Perry established “a violation of her constitutional rights” under the Eighth and Fourteenth Amendments, and (2) “the right of a female inmate to be protected from sexual assault is a clearly established right.” Id. Thus, the district court denied Durborow‘s motion for summary judgment. Durborow appeals.
Analysis
I. Jurisdiction
Before addressing the merits of Durborow‘s challenge to the district court‘s order denying his motion for summary judgment, we must first ensure we have jurisdiction to address that challenge at all. See Apodaca v. Raemisch, 864 F.3d 1071, 1074 (10th Cir. 2017).
As discussed above, the district court relied on four factual findings in determining that Durborow wasn‘t entitled to qualified immunity. And Durborow‘s opening brief repeatedly takes issue with one of these four findings. So does his reply brief. Specifically, Durborow doggedly insists that to the extent the Jail‘s male detention officers were freely entering the female pod in violation of the Jail‘s emergencies-only policy, he remained unaware of that fact. For instance, both
Durborow‘s repeated challenges to this key factual finding would normally deprive us of jurisdiction over this interlocutory appeal. See Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015) (explaining that although we typically lack jurisdiction to review an order denying summary judgment, “[t]he denial of qualified immunity to a public official . . . is immediately appealable“—but only “to the extent it involves abstract issues of law” (alterations in original) (quoting Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013))); Castillo v. Day, 790 F.3d 1013, 1018 (10th Cir. 2015) (dismissing interlocutory appeal from denial of qualified immunity for lack of jurisdiction because defendant‘s “argument [wa]s limited to a discussion of her version of the facts and the inferences that c[ould] be drawn therefrom” and thus was “actually a challenge to the district court‘s conclusion” that plaintiffs “presented sufficient evidence to survive summary judgment“).
But Durborow unequivocally—if belatedly—clarified at oral argument that he accepts all of the district court‘s factual findings as true for purposes of this interlocutory appeal. And that concession necessarily includes the district court‘s finding that Durborow was aware the male detention officers were entering the female pod on a regular basis and in violation of the Jail‘s emergencies-only policy. Thus, we reject Perry‘s argument that we lack jurisdiction to resolve the purely legal question before us. See Cox, 800 F.3d at 1243 (exercising jurisdiction over appeal
But before we address the legal issue before us, we hasten to add this caveat: A defendant who brings an interlocutory appeal like this one and then “challenge[s] . . . the district court‘s determinations of evidentiary sufficiency” (as Durborow initially and repeatedly did here) does so at his or her own peril. Ralston v. Cannon, 884 F.3d 1060, 1062 (10th Cir. 2018); see also id. at 1067 (dismissing interlocutory appeal from denial of qualified immunity for lack of jurisdiction where defendant “assert[ed] the district court erred in determining a reasonable juror could conclude he acted intentionally or consciously“). As we pointed out in Ralston, the “jurisdictional limitation” at issue here “has been in place” for more than two decades. Id. at 1067. Thus, we “expect[] practitioners [to] be cognizant of, and faithful to” this limitation throughout the entire course of interlocutory appeals like this one, id. at 1068—not just when they are pressed, at oral argument, to abandon the factual challenges they repeatedly advance in their briefs.
“Qualified immunity ‘protects governmental officials from liability for civil damages insofar as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.“‘” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To that end, when a defendant asserts a qualified-immunity defense at summary judgment, we require the plaintiff “to shoulder” a heavy two-part burden to survive the defendant‘s assertion. Cox, 800 F.3d at 1245. First, “[t]he plaintiff must demonstrate on the facts alleged . . . that the defendant violated his [or her] constitutional or statutory rights.” Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). Second, the plaintiff must demonstrate “that the right was clearly established at the time of the alleged unlawful activity.” Id.
Here, the district court ruled that Perry made both of these showings. Specifically, it ruled that on the facts as alleged, Perry demonstrated (1) Durborow violated her Fourteenth Amendment right as “a female inmate to be protected from sexual assault” and (2) that right was clearly established at the time of the alleged violation. App. 578.
Critically, Durborow opts not to dispute the district court‘s ruling that he violated Perry‘s constitutional rights. Instead, he focuses solely on the second prong of the qualified-immunity analysis. That is, Durborow argues only that even assuming Perry demonstrated a constitutional violation, he is nevertheless entitled to qualified immunity because, as of February 25, 2013, no “clearly established law . . .
A. The Constitutional Violation
In determining whether Perry satisfied the first step of the qualified-immunity analysis, the relevant question before the district court wasn‘t whether Clements violated Perry‘s constitutional rights by raping her. To be sure, Perry had a constitutional right not to be raped by a detention officer in the facility where she was being detained. See Keith v. Koerner (Keith II), 843 F.3d 833, 837 (10th Cir. 2016) (“[A]n inmate has a constitutional right to be secure in her bodily integrity and free from attack by prison guards.” (alteration in original) (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993))); Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999) (“Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment. In determining whether [pretrial detainee‘s] rights were violated, however, we apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to
Perry could satisfy the personal-involvement requirement by showing that, e.g., Durborow was responsible for but “failed to create and enforce policies to protect” her from the rape. Keith II, 843 F.3d at 840. To establish causation, she had to show that Durborow “set in motion a series of events that [he] knew or reasonably should have known would cause others to deprive [Perry] of her constitutional rights.” Id. at 847 (quoting Schneider, 717 F.3d at 768). Finally, in the context of a Fourteenth Amendment claim like this one, Perry could establish the requisite state of mind by showing that Durborow “acted with deliberate indifference.” Id. at 847–48 (“[A]
In turn, the deliberate-indifference test itself has three requirements. Perry had to show (1) that Durborow was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]“; (2) that he actually drew that inference;1 and (3) that he was “aware of and fail[ed] to take reasonable steps to
For the reasons discussed above, we assume that Perry successfully demonstrated Durborow personally violated her Fourteenth Amendment rights under this framework. Nevertheless, Durborow is entitled to qualified immunity unless Perry can also show that the law was clearly established at the time of the constitutional violation. Riggins, 572 F.3d at 1107.
B. Clearly Established Law
For the law to be clearly established, “[t]he contours of” the constitutional right at issue “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013) (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). And the “contours of” a particular right are generally only “sufficiently clear” to put a reasonable official on notice if a plaintiff (1) “identif[ies] an on-point Supreme Court or published Tenth Circuit decision,” Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015), or (2) shows “the clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains,” id. (quoting Weise, 593 F.3d at 1167).
In applying this test, courts must not define the relevant constitutional right “at a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, as the Supreme Court “explained decades ago, the clearly established law must be ‘particularized’ to the
Critically, just as the constitutional-violation question in this case didn‘t turn on whether Clements violated Perry‘s constitutional rights by raping her, the clearly-established-law question doesn‘t turn on whether existing precedent would have put a reasonable detention officer in Clements’ position on notice that raping Perry would violate her constitutional rights. Instead, to satisfy the second part of the qualified-immunity test in the context of Perry‘s supervisory-liability claim against Durborow, Perry must show that as of February 25, 2013, “clearly established law . . . would . . . have put a reasonable official in [Durborow‘s] position on notice that his supervisory conduct would” violate Perry‘s constitutional rights. Cox, 800 F.3d at 1247 (emphasis added). In other words, Perry must “identify a case where an offic[ial] acting under similar circumstances as [Durborow] was held to have violated” the Constitution. Pauly, 137 S. Ct. at 552.
In ruling that Perry made this showing, the district court first cited Durborow‘s knowledge that male detention officers were routinely entering the female pod in violation of the Jail‘s emergencies-only policy. The court then cited Durborow‘s knowledge that the Jail‘s surveillance system didn‘t monitor the female pod‘s individual cells, its showers, or its mechanical room. And the court reasoned that the
Taken together, the district court said, these circumstances “gave rise to an increased risk of sexual assault of female inmates” such that “a reasonable jury could find that Durborow was deliberately indifferent to the[ir] health and safety,” in violation of the Eighth and Fourteenth Amendments. Id. at 578. And because “it is clearly established that a prison official‘s deliberate indifference to sexual abuse by prison employees violates” the Constitution, the district court reasoned, Durborow wasn‘t entitled to qualified immunity. Id. (quoting Keith II, 843 F.3d at 849).
But as Durborow points out, the district court cited only two cases to support this conclusion: Keith II, 843 F.3d 833, and Cox, 800 F.3d at 1245. The court cited Cox for the threshold principle that a “plaintiff must show that the constitutional right was clearly established when the conduct occurred.” App. 578. And it cited Keith II for the general proposition that “it is clearly established that a prison official‘s deliberate indifference to sexual abuse by prison employees violates the Eighth Amendment.” Id. (quoting Keith II, 843 F.3d at 849).
We agree with Durborow that these statements of law define the right at issue here at an unacceptably “high level of generality.” Pauly, 137 S. Ct. at 552 (quoting al-Kidd, 563 U.S. at 742). Instead, “the clearly established law must be ‘particularized’ to the facts of the case.” Id. (quoting Creighton, 483 U.S. at 640). Thus, before the district court could determine the law was clearly established, it had
Cox is not such a case. There, we assumed the existence of a constitutional violation and held that the right at issue—“an inmate‘s right to proper prison suicide screening procedures during booking“—wasn‘t clearly established. Cox, 800 F.3d at 1247. Nor is Keith II, which we decided almost four years after Perry alleges Clements raped her. See Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004) (“[C]ases . . . that postdate the conduct in question . . . could not have given fair notice to [defendant-officer] and are of no use in the clearly[-]established inquiry.“). True, we stated in Keith II that it has been clearly established since 2007 that inmates have a constitutional right “to be free from attack by” prison employees and “to expect reasonable protection from [prison] officials . . . and a reasonable response when sexual misconduct occur[s].” 843 F.3d at 850. But in determining whether Durborow was entitled to qualified immunity, the district court should have looked to the “‘particularized’ . . . facts” of the cases upon which Keith II relied in reaching that conclusion, not to Keith II‘s “general statements of the law.” Pauly, 137 S. Ct. at 552 (first quoting Creighton, 483 U.S. at 640, then quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). Accordingly, to the extent the district court failed to tether its
On appeal, Perry cites additional cases not relied upon by the district court and argues these cases would have put a reasonable official in Durborow‘s position on notice that his conduct in this case violated the Constitution. Specifically, she cites the Supreme Court‘s decisions in Ortiz v. Jordan, 562 U.S. 180 (2011), and Farmer v. Brennan, 511 U.S. 825 (1994), and our decisions in Bryson v. City of Oklahoma City, 627 F.3d 784 (10th Cir. 2010), Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010), Tafoya, 516 F.3d 912, Gonzales v. Martinez, 403 F.3d 1179 (10th Cir. 2005), Smith v. Cochran, 339 F.3d 1205 (10th Cir. 2003), and Lopez, 172 F.3d 756.
We disagree that these cases place the constitutional question in this case “beyond debate.” Pauly, 137 S. Ct. at 551 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In Farmer, the Court set forth the appropriate framework for determining whether a prison official‘s deliberate indifference violates the Eighth Amendment. 511 U.S. at 837. But it didn‘t apply that framework to the facts of the case; instead it remanded the constitutional question to the lower court for resolution. See id. at 849, 851. Similarly, the constitutional question wasn‘t before the Court in Ortiz; there, the Court addressed (1) whether a party may “appeal an order denying summary judgment after a full trial on the merits, 562 U.S. at 184; see also id. at 187–88, and (2) “the effect of [the defendant-officials‘] failure to renew their motion
We at least reached the constitutional question in Bryson. But we held that the plaintiff there failed to “present[] sufficient evidence to support a finding of deliberate indifference.” 627 F.3d at 789. And in Dodds, we both reached the constitutional question and found a constitutional violation. But in that case, the plaintiff alleged the defendant-official violated his Fourteenth Amendment rights under a theory of supervisory liability by “depriving him of his protected liberty interest in posting bail.” 614 F.3d at 1189, 1194–95. Thus, that case illuminated the contours of the right not to be “imprisoned . . . for longer than legally authorized.” Id. at 1192 (quoting Holder v. Town of Newton, 638 F. Supp. 2d 150, 153 (D.N.H. 2009)). It “would not have put a reasonable official in [Durborow‘s] position on notice that his supervisory conduct” in this case—i.e., his alleged failure to protect Perry from the known risk of sexual assault—violated the Constitution. Cox, 800 F.3d at 1247. And the same is true of Smith. Although that case involved the sexual assault of a prisoner, the plaintiff in that case brought suit against the individual who actually assaulted her—not that individual‘s supervisor. 339 F.3d at 1208, 1210. Thus, Smith says nothing about what kind of “supervisory conduct” might suffice to violate the Eighth or Fourteenth Amendments. Cox, 800 F.3d at 1247.
That leaves Tafoya, 516 F.3d 912, Gonzales, 403 F.3d 1179, and Lopez, 172 F.3d 756. In each of these cases, we found the evidence sufficient to demonstrate that the defendants failed to protect the plaintiffs from a known risk of assault. And we
But in each of these cases, the defendant-supervisors weren‘t just aware of the risk that such assaults might occur. Instead, in each of these cases, the defendants were aware that those known risks had, in fact, already previously materialized. For instance, by the time of the alleged constitutional violation at issue in Tafoya, the defendant-sheriff had already “faced three civil suits” arising from sexual assaults on female inmates by male detention officers. 516 F.3d at 915. And we relied heavily on the defendant‘s knowledge of these previous assaults in reversing the district court‘s order granting the defendant‘s motion for summary judgment. Id. at 915, 917, 921.
Here, on the other hand, the district court declined to credit Perry‘s assertions that Durborow was aware of any previous sexual assaults at the jail as of February 25, 2013. And as we explain above, for purposes of this interlocutory appeal, the district court‘s findings and assumptions make up “the universe of facts upon which we base our legal review.” Cox, 800 F.3d at 1242 (quoting Fogarty, 523 F.3d at 1154). Thus, in the absence of any finding by the district court that Durborow was aware of at least one previous assault at the Jail, neither Tafoya, 516 F.3d 912, Gonzales, 403 F.3d 1179, nor Lopez, 172 F.3d 756, were sufficient to “place[] the . . . constitutional question” in this case “beyond debate.” Pauly, 137 S. Ct. at 551 (quoting Mullenix, 136 S. Ct. at 308).2
Notes
We haven‘t yet addressed Kingsley‘s impact on Fourteenth Amendment claims like this one. And in the absence of briefing from either party, we decline to do so here, where resolution of the issue would have no impact on the result of this appeal. Even assuming Perry had to demonstrate that Durborow acted with subjective deliberate indifference, we must accept as true the district court‘s finding that he did so. See Cox, 800 F.3d at 1242. Conversely, even assuming Perry only had to demonstrate that Durborow acted with objective deliberate indifference, this lower standard wasn‘t clearly established as of February 25, 2013. See Riggins, 572 F.3d at 1107 (noting that to overcome qualified-immunity defense, “plaintiff must demonstrate . . . that the right was clearly established at the time of the alleged unlawful activity” (emphasis added)).
Perry cited Keith I for the first time at oral argument. Thus, we could potentially treat as waived and decline to consider her belated assertion that Keith I clearly establishes the contours of the right at issue here. See Ross v. Univ. of Tulsa, 859 F.3d 1280, 1292 n.10 (10th Cir. 2017) (“This argument is waived because it was presented for the first time at oral argument.“), cert. denied, 138 S. Ct. 1267 (2018). But we need not definitively resolve whether Perry waived her Keith I argument. Even if she didn‘t, we would reject that argument on the merits. Like the defendants in Tafoya, Gonzales, and Lopez, the defendant in Keith I was aware that the relevant risk had already materialized. See Keith I, 707 F.3d at 1186, 1189 (noting that plaintiff‘s complaint identified facts “that could support a conclusion that [defendant] was aware of multiple incidents of unlawful sexual conduct at [correctional facility where he served as warden],” including “at least 54 incidents of sexual misconduct and 33 incidents of undue familiarity“). Here, on the other hand, we must accept the district court‘s rejection of Perry‘s assertion that Durborow was aware of previous assaults at the Jail. See Al-Turki, 762 F.3d at 1191. Accordingly, this argument fails.