Smith v. Cochran

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 12 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

PAMELA SMITH,

Plaintiff - Appellee,
v.
No. 01-5085
DON COCHRAN, in both his
individual and official capacity,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 00-CV-35-C)

Angela K. Berglan, Assistant Attorney General (Linda Soper, Assistant Attorney
General, on the briefs), Oklahoma City, Oklahoma, for Defendant-Appellant.

N. Kay Bridger-Riley (Christopher L. Camp and Charles A. McSoud, with her on
the briefs) of Bridger-Riley & Associates, P.C., Tulsa, Oklahoma, for Plaintiff-
Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ARMIJO, * District Judge.

EBEL, Circuit Judge.

The Honorable M. Christina Armijo, U.S. District Court Judge, District of
*

New Mexico, sitting by designation.
 Defendant Don Cochran appeals the district court’s denial of qualified

immunity in this 42 U.S.C. § 1983 action. Plaintiff Pamela Smith brought this

action in the United States District Court for the Northern District of Oklahoma

alleging violation, inter alia, of her Eighth Amendment right to be free from the

use of excessive force against her. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, see Mitchell v. Forsyth, 472 U.S. 511, 525 (1985), and AFFIRM.

BACKGROUND

During the period covering the incidents alleged in her complaint,

November 1997 through August 1998, Pamela Smith was a prisoner of the State

of Oklahoma and housed at the Tulsa Community Correction Center (“TCCC”).

A condition of incarceration at the TCCC was that inmates had to participate in

work programs, and the Oklahoma Department of Corrections was a party to

Prisoners Public Works Project Contracts with employers that arranged jobs for

TCCC inmates. Because the TCCC was a relatively low-security facility, its

inmates worked at jobs in the community that were covered by work project

contracts, but they returned to TCCC after work each day and remained confined

there when not working.

The Oklahoma Department of Corrections had a work project contract with

the Oklahoma Department of Public Safety (“DPS”) under which inmates would

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perform janitorial services at two driver license examination centers run by the

DPS in the Tulsa area, known as the Jenks and the Northside centers. Smith was

assigned to the DPS project and primarily worked at the Northside center. Ed

Spencer, a Senior License Examiner and the DPS supervisor for the Jenks and

Northside centers, would pick up Smith at the TCCC each work day and bring her

to one of the DPS centers. The defendant, Don Cochran, was a DPS employee

and a License Examiner during the period covering the incidents alleged in the

complaint, and from November 1997 until June 1998 he worked primarily at the

Northside DPS examination center.

Under the terms of the works project contract, the Department of

Corrections agreed to provide prisoners to the DPS for “clerical, maintenance,

mechanical, and in general other similar work as the need arises.” DPS, however,

did not have complete discretion in its use of the prisoners. DPS supervisors

could only assign prisoners to jobs on public property, could not permit prisoners

to operate motor vehicles, had to report unsatisfactory job performance and rule

infractions to the Department of Corrections, and had to cooperate with

Department of Corrections policies and procedures regarding monitoring

prisoners and security.

Although the Department of Corrections retained “full jurisdiction and

authority over discipline and control of the prisoners,” the contract required the

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Department of Corrections to provide DPS with copies of relevant operational

polices and procedures that DPS was to enforce. Under the applicable

Department of Corrections rules, the prisoners were prohibited from using alcohol

or drugs, engaging in sex, receiving visitors, using the telephone, or leaving the

DPS facility, except to return to TCCC. The Department retained the right to

conduct unscheduled inspections of the work sites to monitor compliance with the

terms of the contract.

As the supervisor for both the Jenks and Northside centers, Spencer split

his time between them and frequently was not present at the Northside center.

According to Cochran, he sometimes “wouldn’t see [Spencer] for days” at the

Northside center. When he was at the Northside center, Spencer would personally

check on Smith four or five times during the day, and when Spencer was not there

“[u]sually there would be someone watching [the prisoners].” According to

Smith, Cochran acted as the supervisor at the Northside center when Spencer was

not there. Spencer and Cochran were the only DPS personnel to attend a training

session held by Department of Corrections personnel to instruct them in proper

supervision of prisoners working at the Jenks and Northside DPS testing centers.

Smith alleges that Cochran repeatedly subjected her to unwanted sexual

acts between November 1997 and May 1998. She alleges that in November 1997,

during the first week that she worked at the Northside facility, Cochran made a

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comment to her about the size of her breasts. Then, while they were alone

together in a store room, Cochran allegedly told Smith that she “need[ed] to do

something to make him trust [her]” and asked her to expose herself to him. Smith

claims that she exposed herself because Cochran threatened to report to prison

officials that Smith’s brother had visited her at the Northside center, which

violated the rules imposed by the Department of Corrections on her custody while

working at the center. Smith also claims that Cochran forced her to have sexual

intercourse with him during her first two weeks on the job. Cochran denies ever

having had a sexual relationship with Smith.

Smith alleges that Cochran forced her to have intercourse with and perform

oral sex upon him several times between November 1997 and May 1998. She

alleges that the incidents that occurred during that period included Cochran giving

her a condom and suggesting that it would be for his later use, and his raping her

with a salt shaker. Smith also alleges that Cochran told her that two other female

prisoners from TCCC who had worked at the Northside center had exposed

themselves to him. Smith says that she confirmed this with one of the women that

Cochran named.

Cochran admits that during this period he took Smith off DPS grounds for

trips and to visit her family, and Smith alleges that he also permitted her to leave

the premises for other purposes and to receive gifts from family and friends.

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Smith alleges that Cochran would remind her that she was breaking the rules, and

if she did not have sex with him he would report her misconduct. This would

have had the likely result that she would be transferred out of the work program

and transferred from the TCCC to a higher security correctional facility.

Smith claims that, while she was working at DPS, she reported to Spencer

that Cochran was making inappropriate sexual comments to women at the

Northside center and that he had given her a condom. Smith first informed

Department of Corrections officials of Cochran’s alleged misconduct in

September 1998, after she had been transferred to another correctional facility and

was no longer working for DPS. Department of Corrections personnel informed

Spencer of the allegations, and the DPS commenced an internal affairs

investigation into Cochran’s conduct. Cochran resigned from DPS before the

internal affairs investigation was completed for reasons he says were unrelated to

the investigation.

After she was transferred from the TCCC, Smith claims she sought medical

treatment for vaginal pain she says was caused by Cochran’s alleged use of a salt

shaker to rape her and psychological counseling to treat the emotional trauma she

claims to have experienced as a result of Cochran’s alleged sexual abuse.

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 In January 2000, Smith filed the instant lawsuit against Cochran in his

individual and official capacities. 1 Her complaint advances three causes of

action, charging Cochran with violations of 42 U.S.C. § 1983 and with the

commission of the state law torts of sexual assault and battery and intentional

infliction of emotional distress. As part of her § 1983 allegation, Smith claims

that while acting under color of state law, Cochran violated rights guaranteed to

her under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United

States Constitution.

Cochran moved for partial summary judgment on the § 1983 and the

intentional infliction of emotional distress causes of action. While accepting as

true for the purposes of his motion Smith’s allegations of sexual abuse, Cochran

argued that those allegations did not support a § 1983 cause of action and he was

entitled to judgment as a matter of law. In addition, he argued that even if

Smith’s allegations amounted to constitutional violations on his part, he was

entitled to qualified immunity because the constitutional violations he was alleged

to have committed were not clearly established at the time he is supposed to have

committed them.

1
In the original complaint, Smith also named Spencer and the Oklahoma
Department of Public Safety as defendants. These defendants were dropped from
the suit pursuant to a stipulation by all parties. Order of May 9, 2001, at 1 n.1.

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 The district court denied Cochran’s motion for summary judgment. It

construed Smith’s § 1983 claim as being based solely on the Eighth Amendment

violation because, although Smith also invoked the Fourth, Fifth, and Fourteenth

Amendments in her complaint, she failed to frame arguments concerning them. 2

The district court concluded first that Smith’s allegation of repeated sexual

assault by a state employee who acted as her supervisor in a prison work program

sufficiently alleged a violation of the Eighth Amendment’s prohibition of cruel

and unusual punishment. Second, the district court found that Cochran’s actions

were done under color of state law because they allegedly occurred while he was

acting as a state employee. Because the district court concluded that Smith had

shown that Cochran committed a constitutional violation while acting under color

of state law, the court ruled that the § 1983 allegations survived summary

judgment. In addition, the court denied summary judgment on Cochran’s claim of

qualified immunity because it found that the constitutional violation Smith

alleged was clearly established at the time of the claimed violation. Finally, the

2
The parties limited their arguments in their opening briefs on appeal to the
issue of the alleged Eighth Amendment violation. We subsequently ordered
supplemental briefing on whether Smith alleged facts establishing a violation of
her substantive rights under the Due Process Clause of the Fourteenth
Amendment. Because we resolve this case on Eighth Amendment grounds, and
the Eighth Amendment is the proper vehicle for evaluating excessive force claims
involving prisoners, we do not address the parties’ due process arguments. See
Whitley v. Albers, 475 U.S. 312, 327 (1986).

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district court denied summary judgment on the cause of action for intentional

infliction of emotional distress.

Cochran appeals the district court’s denial of his motion for summary

judgment. He confines his appeal to the district court’s denial of summary

judgment on the issue of qualified immunity. Cochran contends that, even taking

Smith’s allegations as true, Smith has not shown that he violated a constitutional

right that was clearly established at the time of the alleged violation. Because

Smith did not make this showing, Cochran argues, the district court erred in

denying his summary judgment motion on the issue of qualified immunity and

urges that we reverse the district court’s decision.

After Cochran commenced this appeal, we ordered briefing on whether the

district court’s order could be reviewed through this interlocutory appeal.

Because Cochran argues that he is entitled to qualified immunity under the

plaintiff’s version of the facts, focusing on the legal issue whether the

constitutional right he allegedly violated was clearly established, we conclude that

we have jurisdiction to hear this appeal. DeAnzona v. City & County of Denver,

222 F.3d 1229, 1233–34 (10th Cir. 2000) (“If the defendant argues that she is

entitled to qualified immunity under the plaintiff's version of the facts because the

plaintiff has not demonstrated a violation of clearly established law, this Court

may properly exercise jurisdiction over an interlocutory appeal.”). We emphasize

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that “‘immunity appeals . . . [are] limited to cases presenting neat abstract issues

of law.’” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997) (quoting

Johnson v. Jones, 515 U.S. 304, 317 (1995)).

DISCUSSION

Government officials are entitled to qualified immunity from liability for

civil damages under § 1983 when their “conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity is “an entitlement not to stand trial or face the other burdens of

litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Our review of a

denial of a summary judgment motion raising qualified immunity questions is

conducted de novo. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185

(10th Cir. 2001).

“Because of the underlying purposes of qualified immunity, we review

summary judgment orders deciding qualified immunity decisions differently from

other summary judgment decisions.” Medina v. Cram, 252 F.3d 1124, 1128 (10th

Cir. 2001). “After a defendant asserts a qualified immunity defense, the burden

shifts to the plaintiff, and the plaintiff must first establish that the defendant’s

actions violated a constitutional or statutory right.” Harrington, 268 F.3d at 1185

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(internal quotation marks omitted). “If a ‘favorable view’ of the facts alleged

show the violation of a constitutional right, ‘the next, sequential step is to ask

whether the right was clearly established’ at the time of the defendant’s unlawful

conduct.” Id. at 1186 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). When

“the plaintiff fails to satisfy either part of this two-part inquiry, the court must

grant the defendant qualified immunity.” Id. However, “[i]f the plaintiff

successfully establishes the violation of a clearly established right, the burden

shifts to the defendant, who must prove ‘that there are no genuine issues of

material fact and that he or she is entitled to judgment as a matter of law.’” 3

Medina, 252 F.3d at 1128 (quoting Hinton v. City of Elwood, 997 F.2d 774, 779

(10th Cir. 1993)) (internal quotation marks omitted).

I. The Alleged Violation of the Eighth Amendment

We turn first to whether Smith has established that Cochran’s actions

violated the Eighth Amendment. The Eight Amendment states that “[e]xcessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. The Supreme Court has said

3
This last element of the burden-shifting framework for summary judgment
on questions of qualified immunity, although part of the analysis that must be
conducted by the district court, is not relevant here. Cochran focuses his appeal
on the pure legal issue whether or not Smith has shown that he violated a clearly
established constitutional right.

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that the use of excessive force against a prisoner can violate the Eighth

Amendment, stating that “‘the unnecessary and wanton infliction of pain . . .

constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’”

Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430

U.S. 651, 670 (1977)) (internal quotation marks omitted); Hudson v. McMillian,

503 U.S. 1, 5–6 (1992). Smith claims that Cochran violated her right to be free

from cruel and unusual punishment by using excessive force against her in the

form of rape and sexual abuse.

“Ordinarily, an excessive force claim involves two prongs: (1) an objective

prong that asks ‘if the alleged wrongdoing was objectively harmful enough to

establish a constitutional violation,’ and (2) a subjective prong under which the

plaintiff must show that ‘the officials act[ed] with a sufficiently culpable state of

mind.’” Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir.

1999) (quoting Hudson, 503 U.S. at 8) (internal quotation marks omitted)

(alteration in original). The objective component of an excessive force claim is

“contextual and responsive to contemporary standards of decency.” Hudson, 503

U.S. at 8. “The subjective element of an excessive force claim ‘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.’” Giron, 191

F.3d at 1289 (quoting Whitley, 475 U.S. at 320–21).

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 Sexual abuse is repugnant to contemporary standards of decency and

allegations of sexual abuse can satisfy the objective component of an Eighth

Amendment excessive force claim. We have expressly acknowledged that “an

inmate has a constitutional right to be secure in her bodily integrity and free from

attack by prison guards.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir.

1993). The right to be secure in one’s bodily integrity includes the right to be

free from sexual abuse. See Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.

1998) (holding that “plaintiffs’ deprivations resulting from the sexual assaults are

sufficiently serious to constitute a violation under the Eighth Amendment.”). We

find that Smith’s allegation of sexual abuse by Cochran identifies acts that satisfy

the objective prong of Smith’s excessive force claim. She states in her deposition

testimony and in an affidavit that Cochran forced her to expose herself to him and

that he raped her on several occasions, including once with a salt shaker.

Smith’s allegations also satisfy the subjective prong of an excessive force

claim. 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.’” Giron, 191 F.3d at 1290 (quoting Whitley, 475 U.S. at 320–21).

“[S]exual abuse of a prisoner by a corrections officer has no legitimate

penological purpose, and is simply not part of the penalty that criminal offenders

pay for their offenses against society.” Id. (internal quotation marks omitted);

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Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997) (finding that the sexual

abuse itself may be sufficient evidence of a culpable state of mind). Because

there can be no legitimate purpose for the sexual abuse and rape alleged by Smith,

her allegations satisfy the requirement that she show Cochran acted maliciously

and sadistically.

Cochran contends, however, that even if we take Smith’s allegations as

true, his alleged rape and sexual abuse of Smith does not implicate the Eighth

Amendment because the Amendment acts as a restraint only on the acts of prison

guards or prison officials. He characterizes his relationship to Smith as being

merely that of a co-worker to whom the Eighth Amendment does not apply. We

find this line of argument unavailing. Although we do agree that the scope of the

Eighth Amendment is limited, it is not so limited as to be inapplicable to a person

in Cochran’s position.

In explaining the scope of the Eighth Amendment, the Supreme Court has

said that “[t]he primary purpose of [the Cruel and Unusual Punishment Clause] . .

. has always been considered, and properly so, to be directed at the method or

kind of punishment imposed for the violation of criminal statutes . . . .” Powell v.

Texas, 392 U.S. 514, 531–32 (1968). The purpose of the Amendment indicates

that it contains a limitation on what types of state actors can violate it. The

Supreme Court has instructed that “the text of the Amendment suggests an

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intention to limit the power of those entrusted with the criminal-law function of

government.” Ingraham v. Wright, 430 U.S. 651, 664 (1977) (emphasis added).

Consistent with this teaching, we conclude that only prison officials and those to

whom they delegate penological responsibilities for prisoners have Eighth

Amendment duties and attendant liabilities.

The fact that Cochran was not a prison guard or prison official per se does

not render the Eighth Amendment inapplicable to him. Important penological

responsibilities were delegated to him as an employee of the DPS. One of the

Oklahoma Department of Corrections’s core penological functions is supervising

the behavior of the inmates in the custody of its prison system, and another

penological function embraced by the TCCC was to provide job experience to

some of its inmates. The Department of Corrections delegated a portion of these

responsibilities to the DPS by entrusting DPS personnel, pursuant to the terms of

a contract, to supervise the activities of Oklahoma state prisoners who were

permitted to work at DPS. We conclude that those acting under that delegated

authority also bore the duty under the Eighth Amendment to refrain from using

excessive force against prisoners.

Cochran argues that the Department of Corrections did not, in fact, delegate

any supervisory authority to DPS. The works project contract did state, as

Cochran emphasizes, that the Department of Corrections would retain “full

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jurisdiction and authority over discipline and control of the prisoners.” We do

not, however, read this provision as saying that DPS personnel had no supervisory

duties under the contract. The provision is better understood as preventing the

DPS from substituting its own disciplinary standards for those of the Department

of Corrections when supervising prisoners and as making clear that, even though

a prisoner was off the grounds of the TCCC while at work, he or she was still

subject to the control of state penal authorities. In fact, the contract invoked a

state law that extends, as a legal matter, the boundaries of the prisoner’s place of

confinement to the site of the prisoner’s public works project. Okla. Stat. Ann.

tit. 57, § 510.1(A)(4) (“The Department of Corrections may extend the limits of

the place of confinement of a committed offender at any of the state correctional

facilities . . . [t]o participate in public works projects.”)

Thus, under Oklahoma law, Smith was effectively in prison even as she

worked at DPS. Pursuant to Okla. Stat. Ann. tit. 57, § 510.1(F), a prisoner who is

away from the Department of Corrections facility where he is incarcerated “is,

during his absence, to be considered as in the custody of the correctional facility

and the time of such absence is to be considered as part of the term of sentence.”

Construing the meaning of this provision in Hunt v. Oklahoma, 793 P.2d 1366

(Okla. Crim. App. 1990), the Oklahoma Court of Criminal Appeals said:

This section clearly provides that the inmate remains in custody and
is honor bound to return from his excursion outside the prison walls.

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 The inmate is continuously “restrained” from exercising his liberty in
any manner other than that approved by the penal institution. While
outside the boundaries of the institution to which he is confined, the
inmate is fully aware that he is not free to do as he pleases and that
any deviation from the terms of his [absence] will result in
prosecution.

Id. at 1368.

We therefore conclude that, pursuant to the terms of the contract governing

the prisoner works program, DPS personnel effectively acted as agents of the

Department of Corrections in monitoring Smith while she was away from the

TCCC but restrained and in state custody on the DPS premises. As the district

court found, “[b]y reason of their significant engagement in performing the

contract between [the Department of Corrections] and DPS, these DPS surrogates

[i.e., DPS employees] perform the jobs for which [Department of Corrections]

officers are chartered.” 4 Am. Order of May 9, 2001, at 17. DPS personnel were

required to enforce the Department of Corrections rules prohibiting prisoners

from using alcohol or drugs, engaging in sex, receiving visitors, receiving gifts,

using the telephone, or leaving the DPS facility, except to return to the TCCC.

DPS personnel were required to report violations of the rules to the Department of

Corrections and to cooperate with Corrections officials in monitoring the

prisoners and implementing security policies. And the contract permitted

4
The district concluded that Cochran acted as a “de-facto guard” with
respect to Smith.

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Department of Corrections officials to make unannounced visits at DPS facilities

to ensure that DPS personnel were complying with the terms of the contract.

Moreover, at the times when the sexual abuse alleged by Smith took place,

Smith said that Cochran was the only supervisor present at the Northside center.

Although Cochran argues that he was not authorized by his superior to act as a

supervisor over Smith, Smith’s allegations, which Cochran agrees we must take as

true for purposes of considering his interlocutory appeal, indicate that he in fact

acted as a supervisor over her. She stated that Cochran “was the man running the

place up there when Ed [Spencer] wasn’t there.” When she broke the rules of her

custody by leaving the Northside center premises and by visiting with family and

friends there and receiving cash and gifts from them, Smith claims she did so

“with Don Cochran’s permission.” From these alleged facts, and from Spencer’s

frequent absence from the Northside center and the fact that Cochran was the only

DPS employee besides Spencer to be trained in prisoner supervision by the

Department of Corrections, we draw the reasonable inference, as we are permitted

to do, Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003), that Cochran

had responsibility for administering the conditions of Smith’s custody while she

worked at the Northside center.

We conclude that the contract between the Department of Corrections and

the DPS delegated to the DPS one of its core penological functions: supervising

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Smith’s compliance with Department of Corrections disciplinary policies during

extended periods of her custody. Cochran, as an employee of DPS who acted as a

supervisor over Smith, exercised the authority delegated by the Department of

Corrections. Because Cochran wielded authority over Smith that was delegated

by the state prison authority in the state’s exercise of its penological functions, we

hold that the use of excessive force by him can constitute a violation of the Eighth

Amendment, and that Smith has met her burden under our standard of review for

summary judgment orders deciding qualified immunity claims of showing that

Cochran violated her constitutional right.

II. Whether the Eighth Amendment Right Was Clearly Established

We next turn to the issue whether Smith has met her burden of showing that

the violation of her Eighth Amendment right was clearly established. Harrington,

268 F.3d at 1186. “In showing that the law was clearly established, the plaintiff

does not have to show that the specific action at issue had been held unlawful, but

that the alleged unlawfulness of the defendant’s conduct must be apparent in light

of preexisting law.” Armijo v. Wagon Mound Public Schools, 159 F.3d 1253,

1260 (10th Cir. 1998). In other words, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Id. A plaintiff may meet the burden of making this showing

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by pointing to “a Supreme Court or Tenth Circuit opinion on point, or that his or

her proposition is supported by the weight of authority from other courts.

However, we do not require plaintiffs to produce a factually identical case, but

allow some degree of generality in factual correspondence.” Id.

It is clearly established that prison guards employed by the state can be

liable under the Eighth Amendment for using excessive force against prisoners in

the form of sexual abuse. See Barney, 143 F.3d at 1310 (“Clearly plaintiffs’

deprivations resulting from the sexual assaults are sufficiently serious to

constitute a violation under the Eighth Amendment.”); Hovater, 1 F.3d at 1068

(stating that “an inmate has a constitutional right to be secure in her bodily

integrity and free from attack by prison guards”). In determining what state

employees may act as prison guards, we employ a common-sense, self-evident

definition: prison guards include those government employees who have among

their official responsibilities supervisory or custodial responsibilities for

prisoners. Indeed, Cochran himself equates the role of prison guard generally

with being a prisoner’s custodian, and he says that “[a]s an inmate, Smith had a

constitutional right under the Eighth Amendment to be protected by her

custodian.” Aplt. B. at 10 (emphasis in original).

Moreover, persons to whom the state delegates its penological functions,

which include the custody and supervision of prisoners, can be held liable for

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violations of the Eighth Amendment. Cf. Evans v. Newton, 382 U.S. 296, 299

(1966) (“[W]hen private individuals or groups are endowed by the State with

powers or functions governmental in nature, they become agencies or

instrumentalities of the State and subject to its constitutional limitations.”); West

v. Atkins, 487 U.S. 42, 57 (1988) (holding that a private doctor treating prisoners

under a contract with state prison authorities acted under color of state law for

purposes of § 1983 suit alleging Eighth Amendment violation); Richardson v.

McKnight, 521 U.S. 399, 412–13 (1997) (holding that prison guards employed by

a private prison are not entitled to qualified immunity from suits under § 1983,

but that whether the private defendants acted under color of state law in violation

of § 1983 was a matter to be determined by the district court); Dellis v.

Corrections Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001) (holding that

plaintiff adequately stated claim under Eighth Amendment against a private prison

and personnel employed there); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th

Cir. 1991) (holding that a private prison under contract with state acted under

color of state law for purposes of § 1983 suit alleging violations of the Eighth

Amendment) ; Ancata v. Prison Health Svcs., 769 F.2d 700, 703 (11th Cir. 1985)

(holding that a private medical service responsible for treating state prisoners

engaged in state action subjecting it to suit under § 1983 because it performed “a

function which is traditionally the exclusive prerogative of the state”); Mauldin v.

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Burnette, 89 F. Supp. 2d 1371, 1376 (M.D. Ga. 2000) (holding the defendant, a

private person to whom plaintiff, a prisoner, was entrusted on work release,

potentially liable under § 1983 for constitutional violations because defendant

“was authorized by [the county] . . . to sign an inmate out of jail, supervise him

throughout the week, maintain discretion and authority over his actions and

behavior, and then return him to . . . jail [and that] all of these actions are

custodial in nature”). In his supervisory position over Smith, Cochran acted as

the functional equivalent of a prison guard. He was an employee of the state who,

pursuant to a contract with the Department of Corrections, was responsible for

administering the conditions of Smith’s confinement during her work day at the

Northside center. Under the contract with the Department of Corrections, DPS

was required to enforce the rules of conduct for prisoners and report violations,

and at the time of the alleged sexual abuse, Cochran was the only DPS supervisor

present at the Northside center. We hold that because Smith acted as the

functional equivalent of a prison guard by virtue of the penological responsibility

delegated to the DPS by the state, “the alleged unlawfulness of the defendant’s

conduct [was] . . . apparent in light of preexisting law.” Armijo, 159 F.3d at

1260. 5

For the purposes of this appeal, we have accepted as true Smith’s
5

allegations that Cochran in fact had supervisory authority over her. As our
(continued...)

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 CONCLUSION

We conclude that the Smith has carried her burden of showing that the

Cochran violated her constitutional right to be free from the use of the excessive

force against her and that the right was clearly established at the time of the

alleged violation. Accordingly, Cochran is not entitled to qualified immunity and

we AFFIRM the decision of the district court denying Cochran’s motion for

summary judgment on that issue.

5
(...continued)
opinion makes clear, Cochran must have possessed custodial or supervisory
authority over Smith in order for him to be liable under § 1983 for the alleged
Eighth Amendment violation. Whether he did possess such authority at the time
of the alleged sexual abuse in this case is a factual matter to be determined at
trial.

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