SUSAN ULLERY, Plaintiff - Appellee, v. BRUCE BRADLEY, in his individual and official capacity, Defendant - Appellant, and DANNY LAKE, in his individual and official capacity; TERRY JACQUES, in his individual and official capacity; RICK RAEMISCH, in his official capacity; DAVID JOHNSON, in his individual and official capacity; DAVID WANG, in his individual and official capacity; DAVID URICH, in his individual and official capacity; RAMONA AVANT, in her individual and official capacity; SCOTT SMITH, in his individual and official capacity, Defendants.
No. 19-1079
United States Court of Appeals for the Tenth Circuit
February 10, 2020
PUBLISH
Appeal from the United States District Court for the District of Colorado
(D.C. No. 1:18-CV-00839-STV)
Submitted on the briefs:*
David R. DeMuro, Vaughan & DeMuro, Denver, Colorado, for Defendant-Appellant.
David A. Lane and Liana G. Orshan, Killmer, Lane & Newman, LLP, for Plaintiff-Appellee.
Before PHILLIPS, BALDOCK, and MORITZ, Circuit Judges.
In this
We conclude the district court erred to the extent it held the contours of the asserted constitutional right were clearly established before August 11, 2015. But we further conclude any reasonable corrections officer in Defendant‘s position since August 11, 2015, would have known the alleged conduct violated the Eighth Amendment based upon the clearly established weight of persuasive authority. Because any actionable constitutional violations in this case would necessarily have occurred after this date, the law was clearly established for all relevant purposes, and the district court therefore correctly denied Defendant qualified immunity. Thus, exercising jurisdiction under
I.
Plaintiff is a former inmate at the Denver Women‘s Correctional Center, which is a prison in the Colorado state prison system. Between early 2014 and April 2016, Plаintiff worked in the canteen services at the prison under the direction of Defendant, a corrections officer and supervisor of inmates who worked in the department. During this time, Defendant sexually harassed, abused, and assaulted Plaintiff. Defendant‘s alleged verbal harassment includes, among other things, suggesting that “jacking off and [his] semen hitting [Plaintiff] in the face would make her feel better[,]” telling Plaintiff he wanted to “shove [his] dick in [her] ass[,]” and demanding Plaintiff expose her breasts to him under threat of reprisal. Plaintiff further alleges Defendant: (1) would “repeatedly approach [her] from behind and forcefully press his genitals into her buttocks” and “moan[ ] mmmmmm in [her] ear“; (2) “purposefully and knowingly used physical force against [her] by touching her breasts“; and on one occasion (3) “backed her into a wall, forcefully thrust
On April 10, 2018, Plaintiff filed a complaint in the United States District Court for the District of Colorado, alleging Defendant‘s sexual abuse violated her Eighth Amendment right to be free from excessive force and Fоurteenth Amendment right to be secure in her bodily integrity.2 Plaintiff‘s complaint also asserted claims against other defendants, including Defendant‘s supervisors, who were employees of the Colorado Department of Corrections. These other defendants and claims are not involved in this appeal.
Defendant filed a motion to dismiss the complaint under
II.
“We review de novo the district court‘s denial of a motion to dismiss based on qualified immunity.” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). In conducting this review, we accept аll factual allegations in the complaint as true and draw all reasonable inferences in Plaintiff‘s favor. Lowe, 864 F.3d at 1208. To survive a
Before turning to the merits of Defendant‘s challenge to the district court‘s conclusion regarding qualified immunity, we must first address Defendant‘s arguments concerning the inadequacy of the factual allegations in Plaintiff‘s complaint. Defendant takes issue with the district court‘s reading of the complaint and Plaintiff‘s presentation of the allegations on appeal. Specifically, Defendant argues the district court misconstrued the allegations in the complaint underlying Plaintiff‘s Eighth Amendment claim and erred in considering instances of alleged sexual abuse barred by the statute of limitations.
First, Defendant argues any constitutional violаtion arising from the allegation he would “repeatedly approach [Plaintiff] from behind and forcefully press his genitals into her buttocks” and “moan[ ] mmmmmm in [her] ear” is barred by the statute of limitations. “The forum state‘s
Colorado‘s two-year statute of limitations applies in this case. See Gee, 627 F.3d at 1190–91;
It is proper to dismiss a claim on the pleadings based on the statute of limitations only if the affirmative defense appears plainly on the face of the complaint itself. Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018). The face of the complaint at issue provides Defendant would “repeatedly approach [Plaintiff] from behind and forcefully press his genitals into her buttocks” and “moan[ ] mmmmmm in [her] ear[,]” and “Defendant [ ] repeated this behavior every time that [Plaintiff] worked inventory.” Plaintiff‘s complaint, however, does not identify specific dates when each alleged instance of sexual abuse occurred. Although claims arising out of constitutional violations Defendant committed before April 10, 2016 are time-barred, it is still plausible—when construing the complaint in the light most favorable to Plaintiff—Defendant engaged in this conduct at least once, and possibly on several occasions, within the limitations period. Thus, we will consider whether this allegеd sexual misconduct violated clearly established law.
Next, Defendant contends we should not consider the allegation he “purposefully and knowingly used physical force against [Plaintiff] by touching her breasts” because it is conclusory. We disagree. “[U]nder
Finally, regarding the allegation Defendant “backed [Plaintiff] into a wall, forcefully thrust his hand between her legs, and [ ] grop[ed] her crotch[,]” Defendant argues the district court erred in interpreting the complaint to state this groping occurred “for approximately three minutes.” Defendant‘s argument is, again, without mеrit. The complaint specifically provides prison officials “left [Plaintiff] alone with Defendant [ ] for approximately three minutes after he had begun to assault her.” These defendants, Plaintiff further alleges, “created the danger that caused [Plaintiff] to be sexually assaulted [by] Defendant [ ] [when he] forcibly grop[ed] her crotch for several minutes.”
Whether evidence supports these allegations, and to what extent the statute of limitations might limit Plaintiff‘s Eighth Amendment claims, are questions for further proceedings. It is sufficient at this stage for us to conclude the allegations in Plaintiff‘s complaint plausibly support her Eighth Amendment claim against Defendant. Having addressed Defendant‘s arguments concerning the well-pleaded facts underlying the alleged constitutional violatiоns, we next turn to whether the district court erred in denying Defendant qualified immunity against Plaintiff‘s Eighth Amendment claim.
III.
“The doctrine of qualified immunity protects government 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.‘” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests—[1] the need to hold public officials accountable when they exercise power irresponsibly and [2] the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. The purpose of the doctrine is to provide government officials “breathing room to make reasonable but mistaken judgments about open legal questions.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
“Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks omitted). When а defendant raises the qualified-immunity defense, the plaintiff must therefore establish (1) the defendant violated a federal statutory or constitutional right and (2) the right was clearly established at the time of the defendant‘s conduct. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). Under this two-part test, “immunity protects all but the plainly incompetent or those who knowingly violate the law.” Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).
For purposes of this appeal, Defendant does not dispute he violated Plaintiff‘s Eighth Amendment right to be free from excessive force in the form of sexual abuse. Defendant instead focuses on the second prong of the qualified-immunity inquiry, arguing he is entitled to qualified immunity because the law was not clearly established at the relevant time. The clearly-established-law prong therefore lies at the heart of this appeal. Because, however, the nature of the alleged constitutional violations are pertinent to our clearly-established-law analysis—and both parties devote substantial portions of their briefs to addressing the underlying violations—we first outline the framework for evaluating a prisoner‘s Eighth Amendment sexual abuse claim.
A.
The Eighth Amendment guarantees prisoners the right to be free from
Although the Supreme Court has not addressed the legal framework for analyzing prisoners’ sexual abuse claims against prison officials, we—along with our sister circuits—have drawn from excessive force precedents to analyze such claims.
See Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003); Ricks v. Shover, 891 F.3d 468, 474–75 (3d Cir. 2018). Under these precedents, a prison official violates the Eighth Amendment only (1) if the constitutional deprivation is “objectively sufficiently serious” and (2) the prison official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). To state a claim for sexual abuse against a prison official under the Eighth Amendment, a plaintiff must therefore satisfy two elements—one objective and one subjective. Smith, 339 F.3d at 1212.
To satisfy the objective component, the plaintiff must show the defendant‘s “alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Id. (quoting Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999)). This objective prong is “contextual and responsive to contemporary standards of decency.” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). But as the Supreme Court has explained, not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment‘s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9–10 (internal quotation marks omitted). Conduct is repugnant to the cоnscience of mankind when it is “incompatible with evolving standards of decency” or involves “the unnecessary and wanton infliction of pain.” Id. at 10 (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)).
Regarding the subjective prong of an excessive force claim, we ask whether the defendant acted with a “sufficiently culpable state of mind.” Smith, 339 F.3d at 1212 (quoting Giron, 191 F.3d at 1289). When a prisoner alleges excessive force in the form of sexual abuse, the subjective element “turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. “In cases of sexual abuse or rape, the conduct itself constitutes sufficient evidence that force was used maliciously and sadistically for the very purpose of causing harm.” Id. at 1212-13 (internal quotation marks omitted) (quoting Giron, 191 F.3d at 1290).
Because the sexual misconduct alleged here is unquestionably “repugnant to the conscience of mankind[,]” see Hudson, 503 U.S. at 9–10, it is unsurprising Defendant has elected not to challenge the district court‘s conclusion regarding
Despite the intolerable conduct at issue, Defendant is nonetheless entitled to qualified immunity unless Plaintiff has cаrried her burden of showing the law was clearly established. For the reasons discussed below, we conclude Plaintiff has, for all relevant purposes, satisfied this burden.
B.
Turning to the issue of whether Defendant is entitled to qualified immunity under the circumstances giving rise to this § 1983 action, we conclude his actions violated clearly established law. Specifically, the clearly established weight of persuasive authority in our sister circuits as of August 11, 2015, would have put any reasonable corrections officer in Defendant‘s position on notice his alleged conduct would violate the Eighth Amendment. Because Plaintiff‘s asserted right to be free from sexual abuse was clearly established at the relevant time, Defendant is not entitled to qualified immunity.
1.
“A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. “The dispositive question is ‘whether the violative nature of the particular conduct is clearly established.‘” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). Accordingly, the Supreme Court has repeatedly admonished circuit courts “not to define clearly established law at a high level of generality.” Kisela, 138 S. Ct. at 1152. Though “a case directly on point” is not required, “existing precedent must have placed the constitutional question regarding the illegality of the defendant‘s conduct beyond debate.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir.), cert. denied sub nom. Cummings v. Bussey, 140 S. Ct. 81 (2019).
“Ordinarily . . . there 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.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (internal quotation marks omitted). But when a public official‘s conduct is so egregious even a general precedent applies with “obvious clarity,” the right can be clearly established notwithstanding the absence of binding authority involving materially similar facts. Lowe, 864 F.3d at 1210 (internal quotation makes omitted); see also Hope, 536 U.S. at 741 (stating defendants “can still be on notice that their conduct violates established law even in novel factual circumstances,” so long as the lаw provided “fair warning” their conduct was unconstitutional). Critically, “the federal right allegedly violated must have been ‘clearly established at the time of the defendant‘s unlawful conduct.‘” Cummings, 913 F.3d at 1240 (quoting Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013)).
Relying on a footnote in Wesby, Defendant argues only the Supreme Court can clearly establish law in the particular circumstances of a case. See Wesby, 138 S. Ct. at 591 n.8 (“We have not yet decided what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity.“). While Wesby may have suggested this is an open question, we do not think only Supreme Court precedents are relevant in deciding whether a right is clearly established. See Wilson v. Layne, 526 U.S. 603, 617 (1999) (Rehnquist, C.J.) (explaining courts may rely on “a consensus of cases of persuasive authority” to determine whether a “reasonable officer could not have believed that his actions were lawful“). In recent years, the Supreme Court has reaffirmed that “qualified immunity is lost when plaintiffs point either to ‘cases of controlling authority in their jurisdiction at the time of the incident’ or tо ‘a consensus of cases of persuasive authority.‘” al-Kidd, 563 U.S. at 742 (quoting Wilson, 526 U.S. at 617).
Following the Supreme Court‘s lead, nearly all of our sister circuits, like us, consider both binding circuit precedent and decisions from other circuits in determining whether the law is clearly established. See Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018); Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 762 (3d Cir. 2019); Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019); Werner v. Wall, 836 F.3d 751, 762 (7th Cir. 2016); Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014); Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014); Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011); Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011); Baker v. City of Hamilton, 471 F.3d 601, 606 (6th Cir. 2006); Wilson v. City of Boston, 421 F.3d 45, 56 (1st Cir. 2005); Turner v. Ark. Ins. Dep‘t, 297 F.3d 751, 755 (8th Cir. 2002); cf. Carruth v. Bentley, 942 F.3d 1047, 1054 (11th Cir. 2019) (“look[ing] only to decisions from the United States Supreme Court, this Court, or the [highest court of the relevant state] for clearly established law“).
Defendant‘s argument therefore conflicts with Supreme Court authority, our precedents, and the decisions of our sister circuits. Limiting the source of clearly established law to only Supreme Court precedents also is unwarranted and impractical given the current state of the doctrine. Such a restriction would transform qualified immunity into an absolute bar to constitutional claims in most cases—thereby skewing the intended balance of holding public officials accountable while allowing them to perform their duties reasonably without fear of personal liability and harassing litigation. Seе Pearson, 555 U.S. at 231. Accordingly, Defendant‘s position is untenable.
2.
Our first step in the clearly-established-law inquiry is to consider cases of controlling authority in this jurisdiction, which would settle the question before us. We therefore start with Supreme Court and Tenth Circuit decisions that have addressed the asserted right. Neither the district court nor the parties cite a Supreme
In concluding Plaintiff carried her burden of showing the law was clearly established, the district court cited several of our prior cases involving sexual assaults of inmates. The district court cited Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998), for the threshold principle that an inmate‘s “deprivations resulting from [ ] sexual assaults are sufficiently serious to constitute a violation under the Eighth Amendment.” Similarly, the district court also cited our statement in Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008), that “[t]here is no question that sexual assault of the kind suffered by [plaintiff] meets the objective component of an Eighth Amendment claim.” And finally, the district court cited Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005), for the following proposition: “[A] plaintiff‘s uncontroverted claim of deprivations resulting from sexual assault are sufficiently serious to constitute a violation under the Eighth Amendment.” (Internal quotation marks omitted.). Plaintiff argues Defendant‘s alleged conduct is manifestly included within these precedents and the law was therefore clearly established at the relevant time.
But as Defendant correctly points out, these statements of law define the underlying constitutional right at an unacceptably “high level of generality.” Kisela, 138 S. Ct. at 1152. Although these cases describe an inmate‘s right to be free of sexual assault in clear and broad terms, “[t]he dispositive question is ‘whether the violative nature of the particular conduct is clearly established.‘” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). And these decisions fail to describe the sexual assaults at issue with sufficient detail to clearly establish that Defendant‘s particular conduct violated the Eighth Amendment. See Tafoya, 516 F.3d at 914–16 (using the general term “sexual assault” to dеscribe the misconduct); Barney, 143 F.3d at 1305–07, 1310 (same).
Plaintiff contends our published opinion in Gonzales clearly establishes Defendant‘s alleged actions violated the Eighth Amendment. In Gonzales, jail guards “sexually assaulted” female inmates on several occasions. 403 F.3d at 1181. Although we described one such instance in detail—where the guard grabbed the plaintiff‘s arm, said “[l]et‘s start off where we left yesterday[,]” “pressed his body against hers and tried to kiss her,” but did not “have anything unzipped” during the encounter—the nature of the other sexual assaults is unclear. Id.
While Gonzales does describe one instance of sexual assault in more detail than our other precedents, the decision is still insufficient to clearly establish the violative nature of the particular conduct alleged in this case. Because only the liability of the supervisory defendants was at issue in Gonzales, we did not analyze the constitutionality of the underlying sexual assaults or consider whether such conduct violated the Eighth Amendment. It might be possible for a case addressing only supervisory liability to put a reasonable, nonsupervisory official оn notice for purposes of qualified immunity. But Gonzales does not clarify whether the specific conduct Plaintiff argues is materially analogous to the sexual abuse alleged here would violate the Eighth Amendment. See id. at 1182 n.8 (noting the plaintiff-appellant‘s “third claim for assault and battery against [the sexual assaulters], was dismissed with prejudice after the district court dismissed the § 1983 and negligent supervision claims“). Thus, Plaintiff‘s reliance on Gonzales is unavailing.
An unpublished decision from this court “can be quite relevant in showing that the law was not clearly established,” especially when “the same alleged victim and same defendant conduct are involved.” Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018) (emphasis added). Joseph, however, is not such a decision because the allegations of sexual harassment mentioned therein are ambiguous and unspecified. Due to the vague and limited factual description of the conduct underlying the plaintiff‘s Eighth Amendment claim, which we speculate was less egregious than the sexual abuse alleged here, Joseph is not helpful in determining whether the law was or was not clearly established. For the same reason the factual discussions in our binding precedents discussed above are inadequate to clearly establish the law, Joseph fails to carry the day for Defendant.
Neither the district court nor Plaintiff have identified any case from the Supreme Court or this court squarely addressing whether Defendant‘s alleged conduct violates the Eighth Amendment. Our clearly-еstablished-law inquiry, however, does not end here. Despite the lack of on-point, binding authority addressing the issue, we must now consider whether the right was clearly established based on either a consensus of persuasive authority or general constitutional principles.
3.
In the absence of binding precedent specifically adjudicating the right at issue, the right may still be clearly established based on a “consensus of cases of persuasive authority” from other jurisdictions. al-Kidd, 563 U.S. at 742 (quoting Wilson, 526 U.S. at 617); see also Perry, 892 F.3d at 1123. Plaintiff argues the clearly established weight of out-of-circuit authorities would have put any reasonable corrections officer in Defendant‘s position on notice his conduct violated the Constitution. Accordingly, we now proceed to examine the relevant decisions of our sister circuits addressing the right of inmates under the Eighth Amendment to be free from sexual abuse.
a.
The consensus of persuasive authority from our sister circuits since August 11, 2015, places the constitutional question in this case “beyond debate.” See Cummings, 913 F.3d at 1239. The Second, Seventh, Eighth, and Ninth Circuits have all held—in published decisions involving materially analogous facts—sexual abuse of the nature alleged here violates the Eighth Amendment. Even more, the Third and Sixth Circuits have recognized an inmate‘s right to be free from sexual abuse under the Eighth Amendment was clearly established at the time of Defendant‘s unlawful conduct.
We begin our discussion of the relevant out-of-circuit authority with the Second
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997), the Second Circuit recognized “sexual abuse of a prisoner by a corrections officer may in some circumstances violate the prisoner‘s right [under the
Eighteen years later—on August 11, 2015—the Second Circuit reevaluated its opinion in Boddie in light of evolved, contemporary standards of decency. Crawford I, 796 F.3d at 254. The court first clarified “the rule set forth in Boddie: A corrections officer‘s intentional contact with an inmate‘s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer‘s sexual desire or to humiliate the inmate, violates the
Although the court applied the same general standard set forth in Boddie, which had not changed, it concluded the defendant‘s alleged actions “unquestionably” violated the
The Second Circuit‘s holding in Crawford I paralleled the decisions of other circuit courts addressing sexual misconduct materially analogous to Defendant‘s alleged actions. In Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012), for instance, the plaintiff alleged the defendant violated the
The Eighth Circuit‘s decision in Berry v. Oswalt, 143 F.3d 1127 (8th Cir. 1998),
The Seventh Circuit‘s decision in Washington v. Hively, 695 F.3d 641 (7th Cir. 2012) (Posnеr, J.), likewise informs our clearly-established-law analysis. The plaintiff in Hively, a pretrial detainee in county jail, alleged a guard “spent five to seven seconds gratuitously fondling [his] testicles and penis through [his] clothing and then while strip searching him fondled his nude testicles for two or three seconds.” Id. at 642.5
The district court granted summary judgment in the guard‘s favor on the plaintiff‘s
Defendant argues Hively is inapposite because the decision seeks “to retire the principle of de minimis uses of force” and
The Third and Sixth Circuits have also recognized an inmate‘s right to be free from sexual abuse under the
Given the persuasive authority in the Second, Third, Sixth, Seventh, Eighth, and Ninth Circuits, we are compelled to conclude Plaintiff‘s right to be free from sexual abuse was clearly established under the
b.
Despite the consensus of published circuit court opinions discussed above, Defendant contends a body of case law in this circuit and decisions in other jurisdictions demonstrate the asserted right was not clearly established at the time of the alleged violations. The case law muddying the water, Defendant argues, includes the Second Circuit‘s summary order in Crawford v. Cuomo, 721 F. App‘x 57 (2d Cir. 2018) (unpublished) (Crawford II); Ricks v. Shover, 891 F.3d 468 (3d Cir. 2018); Boxer X v. Harris, 437 F.3d 1107 (11th Cir. 2006); the Fourth Circuit‘s per curiam opinion in Jackson v. Holley, 666 F. App‘x 242 (4th Cir. 2016) (unpublished); and four district court decisions from the District of Colorado. None of these decisions alter our conclusion the right was clearly established as of August 11, 2015.
First, Defendant‘s reliance on the Second Circuit‘s decision in Crawford II is misplaced. There the defendant was entitled to qualified immunity for wrongdoings he allegedly committed in 2011 because the court did not have the benefit of its holding in Crawford I and out-of-circuit authorities existing at that time did not clearly foreshadow the outcome. Crawford II, 721 F. App‘x at 59. Given the developments in circuit authority since 2011, we speculate the outcome in Crawford II may have been different if the alleged misconduct occurred a few years later. See Hively, 695 F.3d at 642–43 (holding materially similar sexual abuse violated the
In Ricks, the Third Circuit stated “[w]hether sexual abuse can constitute ‘cruel and unusual punishment’ under the
Turning to judicial authority in the Eleventh Circuit, Defendant‘s reliance on Boxer X is patently misguided. In Boxer X, the Eleventh Circuit “join[ed] other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the
It is true Sconiers did not recognize Boxer X as abrogated until after Defendant‘s conduct and therefore fails to provide adequate notice for our clearly-established-law determination. McCoy v. Meyers, 887 F.3d 1034, 1053 n.24 (10th Cir. 2018) (“The dispositive clearly established law inquiry is whether the preexisting law gave adequate notice that the complained of conduct was unconstitutional.”). Nevertheless, Boxer X does not alter our conclusion because the case is factually inapposite. Boxer X might be relevant to our clearly-established-law analysis if Defendant‘s alleged sexual misconduct did not involve any physical contact or touching. Cf. Barney, 143 F.3d at 1311 n.11 (noting allegations of “severe verbal sexual harassment and intimidation” alone are insufficient to state an
Nor does Jackson persuade us that
We are not inclined to accord any weight to Jackson, which is sparely reasoned and involves allegations of “sexual harassment” less severe than the sexual abuse alleged here. See Jackson, 666 F. App‘x at 244 (summarily concluding prison staff psychologist did not violate the
Defendant also cites four district court decisions from the District of Colorado in arguing Plaintiff‘s
For these reasons, we decline to consider district court opinions in evaluating the legal landscape for purposes of qualified immunity. But even if we were to characterize the district court decisions Defendant proffers as “persuasive authority” for purposes of our clearly-established-law analysis, they are “no match for the Circuit precedents.” Hope, 536 U.S. at 747. When weighed against the published circuit precedents, there is still a robust consensus of persuasive authority demonstrating inmates possess an
In sum, persuasive out-of-circuit authority addressing the constitutional right in question was not divided or otherwise unclear following the Second Circuit‘s decision in Crawford I. Defendant violated clearly established
4.
As for any sexual misconduct which occurred before August 11, 2015, we cannot agree with Plaintiff that Defendant‘s alleged actions so obviously violated the
We recognize our parsing of the relevant case law and time period may appear unduly formalistic considering the despicable nature of Defendant‘s alleged misconduct. But this is the task required of us under the qualified-immunity precedents we are obligated to follow. And while Plaintiff asks us to reject the current qualified-immunity framework as unconstitutional, her competent counsel is well-aware it is not this appellate court‘s place to issue such edicts. We, of course, decline to do so here.
Nevertheless, after August 11, 2015, any reasonable corrections officer would have known Defendant‘s alleged conduct violated the
AFFIRMED.
Notes
[A]fter Lopez, the Supreme Court said the
Eighth Amendment standard for excessive force claims brought by prisoners, which requires that defendants act “maliciously and sadistically to cause harm,” does not apply toFourteenth Amendment excessive force claims brought by pretrial detainees, which require showing only that the defendants’ use of force was “objectively unreasonable.” Kingsley v. Hendrickson, — U.S. —, 135 S. Ct. 2466, 2473, 2475, 192 L.Ed.2d 416 (2015).
Burke v. Regalado, 935 F.3d 960, 991 n.9 (10th Cir. 2019). Thus, following Kingsley, we no longer apply an identical analysis to an excessive force claim regardless of whether the claim arises under the