FILED
United States Court of Appeals
Tenth Circuit
February 21, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MICHELLE TAFOYA,
Plaintiff-Appellant,
v. No. 06-1191
HUERFANO COUNTY SHERIFF
JOHN SALAZAR,
Defendant-Appellee,
and
ALAN RUIZ,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 02-CV-2378-RPM)
Jennifer Bisset, Bisset Law Firm, Englewood, Colorado, for Plaintiff-Appellant.
Andrew D. Ringel (David R. Brougham with him on the brief), Hall & Evans,
L.L.C., Denver, Colorado, for Defendant-Appellee.
Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
From 1995 to 2003, John Salazar served as the elected sheriff of Huerfano
County, Colorado, responsible for the management and supervision of the
Huerfano County Jail. In 1998, two independent incidents of sexual assault
occurred in the jail, both perpetrated by male detention officers against female
inmates. In Gonzales v. Martinez, 403 F.3d 1179 (10th Cir. 2005), we found
evidence that these assaults were the product of unconstitutional jail conditions
maintained through the deliberate indifference of Sheriff Salazar, and noted many
ways in which his administration of the jail fell below an acceptable standard.
Three years after the assaults, on December 21, 2001 and again on December 30,
2001, plaintiff-appellant Michelle Tafoya was sexually assaulted by detention
officer Alan Ruiz. Mr. Ruiz was later arrested for and convicted of the assaults.
Ms. Tafoya brings this civil action under 42 U.S.C. § 1983 against Sheriff
Salazar and Mr. Ruiz. 1 Ms. Tafoya claims that Sheriff Salazar demonstrated
deliberate indifference to the rights of inmates in his care and custody, subjecting
her to cruel and unusual punishment in violation of the Eighth Amendment. The
district court granted Sheriff Salazar’s motion for summary judgment, concluding
that Ms. Tafoya had failed to provide evidence that Sheriff Salazar was actually
aware of a substantial risk of harm to female inmates or to show a causal
connection between his managerial deficiencies and the sexual assaults committed
1
Mr. Ruiz failed to respond to the complaint and the district court entered a
default judgment against him. Order of Dismissal, Doc. 72 (Jan. 30th, 2007).
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by Mr. Ruiz. Because we find that Sheriff Salazar was aware of prison conditions
that were substantially likely to result in the sexual assault of a female inmate,
and conclude that a jury might infer that the assaults on Ms. Tafoya were caused
by these dangerous conditions, we reverse.
I. Background
In December, 2001, Ms. Tafoya was serving a one-year sentence at the
Huerfano County Jail. Through her good behavior, Ms. Tafoya earned an
appointment as a jail trustee. Jail trustees perform cooking and cleaning duties in
exchange for a sentence reduction. At the time of the assaults, Ms. Tafoya was
the only female trustee.
On December 21, 2001, Mr. Ruiz called Ms. Tafoya out of her cell to take
the trash to the dumpster — one of her trustee duties. Mr. Ruiz escorted Ms.
Tafoya outside to the dumpster, in violation of a jail policy that required female
trustees to be accompanied by a female officer while cleaning or taking out the
trash. Ms. Tafoya then returned to the kitchen to clean, where she was sexually
assaulted by Mr. Ruiz. Ms. Tafoya did not immediately report the assault because
she feared that she would not be believed by the other officer on duty and would
have her trustee status revoked.
On December 30, 2001, Mr. Ruiz was working the graveyard shift from
12:00 a.m. to 8:00 a.m. Ona Garcia, a female officer, was stationed in the control
room where she could monitor the hallway leading to the kitchen over the
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surveillance cameras. There was no camera inside the kitchen. Ms. Tafoya
entered the kitchen to perform her cooking and cleaning duties. While she was
there, Mr. Ruiz entered, again in violation of the jail’s “no-contact” policy
between male detention officers and female inmates. He informed Ms. Tafoya
that Ms. Garcia was asleep in the control room and sexually assaulted Ms. Tafoya
a second time.
Mr. Ruiz was not the first Huerfano County Jail detention officer to
sexually assault a female inmate at the jail. Detention officers Robert Martinez
and Dominick Gonzales sexually assaulted two female inmates in 1998. Both
were convicted and imprisoned for the offenses. Sheriff Salazar faced three civil
suits as a result of these assaults. See Gonzales, 403 F.3d at 1179 (reversing the
grant of summary judgment by the district court).
After the 1998 assaults, Sheriff Salazar took some steps to remedy the risk
to female inmates of sexual assault. He fired Robert Martinez, the jail
administrator and perpetrator of one of the assaults. He installed four additional
surveillance cameras to cover unmonitored locations in the jail, including areas
where the 1998 assaults had occurred, but not including the kitchen where the
assault against Ms. Tafoya later took place. He also hired additional female staff
and implemented a half day sexual harassment training on November 7, 2001,
which Mr. Ruiz attended. The question we address here is whether,
notwithstanding these steps, Sheriff Salazar’s alleged failure to implement and
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enforce other policies to protect female inmates amounted to deliberate
indifference in violation of the Constitution.
II. Discussion
A.
The Eighth Amendment’s prohibition of cruel and unusual punishment
imposes a duty on prison officials to provide humane conditions of confinement,
including adequate food, clothing, shelter, sanitation, medical care, and
reasonable safety from serious bodily harm. Farmer v. Brennan, 511 U.S. 825,
832 (1994); Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980). However, this
minimum standard does not impose constitutional liability on prison officials for
every injury suffered by an inmate. First, the alleged injury or deprivation must
be sufficiently serious. The official’s act or omission must result in the denial of
“the minimal civilized measure of life’s necessities.” Farmer 511 U.S. at 834.
There is no question that sexual assault of the kind suffered by Ms. Tafoya meets
this objective component of an Eighth Amendment claim. Hovater v. Robinson, 1
F.3d 1063, 1068 (10th Cir. 1993) (“[A]n inmate has a constitutional right to be
secure in her bodily integrity and free from attack by prison guards.”).
Second, because the Eighth Amendment prohibits only cruel and unusual
punishment, the prison official must have a sufficiently culpable state of mind to
violate the constitutional standard. The standard of culpability necessary to an
Eighth Amendment violation is one of deliberate indifference. “[A] prison
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official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety . . . .” Farmer, 511 U.S. at
837. The standard is subjective, requiring that the official actually be “aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. An official’s failure to
alleviate a significant risk of which he was unaware, no matter how obvious the
risk or how gross his negligence in failing to perceive it, is not an infliction of
punishment and therefore not a constitutional violation. Id. at 844. The official’s
knowledge of the risk need not be knowledge of a substantial risk to a particular
inmate, or knowledge of the particular manner in which injury might occur. Id. at
843 (finding liability even though the prison official “did not know that the
complainant was especially likely to be assaulted by the specific prisoner who
eventually committed the assault.”). “It does not matter whether the risk comes
from a single source or multiple sources, any more than it matters whether a
prisoner faces an excessive risk of assault for reasons personal to him or because
all prisoners in his situation face such a risk.” Gonzales, 403 F.3d at 1187
(quoting Farmer, 511 U.S. at 843). However, even if a prison official has
knowledge of a substantial risk of serious harm to inmates, he is not deliberately
indifferent to that risk unless he is aware of and fails to take reasonable steps to
alleviate that risk. See LaMarca v. Turner, 995 F.2d 1526, 1536 (11th Cir. 1993).
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Although deliberate indifference is a subjective inquiry, a jury is permitted
to infer that a prison official had actual knowledge of the constitutionally infirm
condition based solely on circumstantial evidence, such as the obviousness of the
condition. Farmer, 511 U.S. at 842. “[I]f a risk is obvious, so that a reasonable
man would realize it, we might well infer that [the prison official] did in fact
realize it.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (quoting 1 W.
LaFave & A. Scott, Substantive Criminal Law, § 3.7, at 335 (1986)). In response,
the defendant may present evidence to show that he was in fact unaware of the
risk, in spite of the obviousness.
B.
After the 1998 assaults, Sheriff Salazar was on notice of the dangerous
conditions in the jail and was aware that his own indifference toward jail
operations had contributed to those conditions. Given his knowledge, Sheriff
Salazar was under a duty not only to take reasonable measures to remedy the
circumstances that directly led to the sexual assaults, but to cure his own lack of
attention and unresponsiveness to inmate complaints and other indicators of
serious problems with his detention staff.
1.
In Gonzales v. Martinez, 403 F.3d 1179 (10th Cir. 2005), we described the
egregiously undisciplined behavior of the detention staff at the Huerfano County
Jail prior to 1998, and Sheriff Salazar’s “lackadaisical attitude toward his
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responsibility to run the institution.” Id. at 1187. In Gonzales, we specifically
called attention to Sheriff Salazar’s failure to adequately address inmate
complaints, conduct employee reviews and background checks, be physically
present at the jail, and discipline the inappropriate conduct of detention officers.
Because the opinion extensively laid out the deficiencies in Sheriff Salazar’s
performance, we will summarize these deficiencies in some detail.
As noted in Gonzales, Sheriff Salazar did not take an active role in the
investigation of inmate complaints, in spite of his knowledge that his jail
administrator did not take complaints seriously and was actively opposed to
investigations. Id. at 1183, 1187. Those few complaints that were brought to
Sheriff Salazar’s attention he dismissed by “attributing them to attitudes of the
complainants, characterizing them as ‘troublemakers’ or ‘conjuring up’ incidents
to ‘discredit’ his deputies.” Id. at 1187. Furthermore, Sheriff Salazar did not
conduct regular employee evaluations, either to discipline poor performance or to
determine which officers ought to be placed in positions of responsibility. Id. at
1183. He also did not conduct regular criminal background checks on his
employees, and knowingly hired employees with criminal records showing a
propensity for violent and dangerous behavior. 2
2
Sheriff Salazar admitted that he hired Dominick Gonzales even though his
record indicated a DWAI and a period of six months probation for “fighting.”
App. 521. Sheriff Salazar also admitted that he “had to” have seen Mr. Ruiz’s
criminal record which indicated an arrest and conviction for “resistance,
(continued...)
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As further noted in Gonzales, Sheriff Salazar rarely visited the jail,
allowing the undisciplined behavior of his staff to continue unchecked and
unnoticed by him. Id. at 1183. The incidents that were documented suggest that
disorderly behavior and debauchery were pervasive throughout the jail’s
operations. For example, in a recorded incident, a detention officer allowed
intoxicated inmates into the control room to learn how to operate the jail’s
controls. Id. There were also several complaints by female inmates of sexual
harassment and intimidation by Dominick Gonzales, one of the detention officers.
In 1997, Mr. Gonzales entered the female dormitory and exposed himself to the
inmates. He also made inappropriate comments to female inmates over the
intercom, taunting the women to lift their shirts and expose themselves to the
security cameras. Id. Mr. Gonzales was demoted for this behavior, in
conjunction with another incident in which Mr. Gonzales was arrested at a local
bar for harassing female dancers and threatening injury to the arresting officers,
but this discipline did not prevent him from assaulting Amanda Guel in 1998. Id.
at 1184–87.
Ms. Tafoya claims that many of the same deficiencies identified by this
Court in Gonzales remained uncorrected thereafter, and were responsible, in part,
for her assault by Mr. Ruiz.
2
(...continued)
destruction of city property, disturbance, and assault,” and a three months
suspended license for DWAI. App. 555.
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2.
After the 1998 assaults, Sheriff Salazar made only minimal efforts to
address the glaring safety problems at the jail. He established a “no-contact”
policy for male officers and female inmates, installed several new surveillance
cameras, hired additional female staff, and provided for a half-day staff training
by an outside agency regarding the prohibition against sexual contact between
staff and inmates. However, Ms. Tafoya provided evidence to show deliberate
indifference by Sheriff Salazar, in spite of these reforms, including the fact that
he made no effort to alter his own managerial strategy, impose a serious threat of
discipline for policy violations upon his detention staff, or establish an adequate
grievance procedure by which inmates could report officer misconduct with a
reasonable expectation of serious investigation. In additional support of her
claims, Ms. Tafoya offered the expert testimony of Tom Dalessandri to
substantiate the degree to which conditions at the Huerfano County Jail deviated
from generally accepted standards. 3
A prison official may be liable for a substantial risk of serious harm to
inmates in spite of efforts reasonably calculated to reduce the risk, if he
intentionally refuses other reasonable alternatives and the dangerous conditions
3
Tom Dalessandri served for twenty years in law enforcement, including
eight years as sheriff of Garfield County, Colorado. He is a member of the
National Sheriffs’ Association, the Garfield County Jail Advisory Board, and a
Chairman in the County Sheriffs of Colorado.
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persist. In LaMarca, 995 F.2d 1526, the court found that the plaintiffs presented
sufficient evidence to avoid summary judgment even though Mr. Turner, the
superintendent of the facility in question, provided evidence that he had made
efforts to improve safety conditions: “he attempted to secure additional funds,
make improvements to GCI’s physical plant, expand recruitment efforts, and
institute policies that would have reduced the risk of violence if his staff had
followed them.” Id. at 1537. This evidence was, however, matched by plaintiffs’
evidence that Mr. Turner did not take any steps to minimize other serious
problems at the facility, including “(1) improper and inadequate staff training . . .
(2) a staff out of control who did not report rapes, assaults, and illegal activities .
. . (3) [f]ailure to supervise staff . . . [and] (4) failure to employ any standard
procedure to investigate incidents of alleged rapes. . . .” Id. at 1537–38.
Similarly, although Sheriff Salazar instituted some new safety measures, they
were insufficient to prevent liability because there is evidence that he ignored
numerous other problems of which he had knowledge and for which he was aware
of remedies that he chose not to implement.
Sheriff Salazar’s “no-contact” policy might have reduced the opportunity
for assaults on female inmates by male detention officers if it had been enforced.
However, Ms. Tafoya provided testimony that the policy was frequently violated,
in part because there was not always a female detention officer on duty. The
knowing failure to enforce policies necessary to the safety of inmates may rise to
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the level of deliberate indifference. See, LaMarca, 995 F.2d at 1537 (finding
deliberate indifference where prison official “failed to ensure that his direct
subordinates followed the policies he established”); Goka v. Bobbitt, 862 F.2d
646, 652 (7th Cir. 1988) (holding that failure to enforce a policy where the policy
is critical to inmate safety may rise to the level of deliberate indifference). Even
with adequate staffing, an oral “no-contact” policy is an empty gesture without
corresponding supervision and a legitimate threat of discipline for infractions. In
his report on the Huerfano County Jail, Mr. Dalessandri emphasized the lack of
supervision and enforcement of policies by Sheriff Salazar that resulted in an
undisciplined and unprofessional staff: “Sheriff Salazar allowed his staff to ignore
the policies and procedures he laid out through his lack of follow up,
investigation, and discipline . . . contact with female prisoners was a common
practice.” App. 211, 215. “Sheriff Salazar failed to remedy violations of policy
and law . .. allowing individuals to believe that their acts had no consequences,
robbing the Sheriff of his own credibility and leaving the staff with the sense that
‘anything goes.’” App. 216. Sheriff Salazar explicitly agreed in his testimony
that policies alone are not enough to stop a detention officer from committing a
sexual assault. A jury might conclude from this statement that Sheriff Salazar
was aware that his failure to enforce the no-contact policy would likely lead to
widespread violation by the detention staff.
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Even beyond nonenforcement of the no-contact policy, the undisciplined
culture of “anything-goes” among the detention officers remained unaddressed
and unmitigated by Sheriff Salazar, who continued to employ a hands-off
approach to jail management. Mr. Gene Tafoya, one of the detention officers at
the jail, 4 testified that detention officers would arrive to work out of uniform,
would sleep through their shifts, would be intoxicated while working, and would
watch pornographic movies in the control room while on duty. Mr. Tafoya also
testified that on several occasions Mr. Ruiz commented that he would like to have
sex with certain female inmates and stated that he would like to see the female
inmates with their “feet in the air.” App. 219. From such evidence of pervasive
delinquency on the part of his staff, a jury might reasonably conclude that Sheriff
Salazar was either aware of their behavior or aware that his lack of attention
might result in dangerous conditions, particularly in light of the prior assaults.
To improve surveillance, Sheriff Salazar installed four additional cameras
in the jail after the 1998 assaults. We agree that additional surveillance equipment
was a reasonable response to the presence of blind spots where assaults could, and
did, take place. However, Sheriff Salazar knew that blind spots remained even
after the installation of the new cameras, and knew that having some cameras in
4
Gene Tafoya is plaintiff-appellant Michelle Tafoya’s uncle. Although this
relationship may present a question of credibility, we do not consider credibility
on a motion for summary judgment. Seamons v. Snow, 206 F.3d 1021, 1026 (10th
Cir. 2000).
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the jail was not enough to deter assaults in unmonitored areas. 5 See Gonzales,
403 F.3d at 1181 n.5. Detention officers and inmates were aware of the
unmonitored locations where illegal activity could take place out of sight of
personnel in the control room. The kitchen where Ms. Tafoya was assaulted
contained only a malfunctioning audio surveillance device, leaving Ms. Tafoya
vulnerable to an attack. Sheriff Salazar claims that he did not install more
surveillance cameras because of budget constraints. Whether or not he failed to
install more cameras out of deliberate indifference or lack of funding is a genuine
issue of material fact to be considered by a jury.
Sheriff Salazar knowingly continued to employ detention officers with
criminal records. He admits that he reviewed Mr. Ruiz’s application for
employment prior to his hiring, which included a background check showing a
DWAI conviction, a conviction for assault, and an arrest for resistance,
destruction of city property, disturbance, and assault. After hiring, Sheriff
Salazar failed to conduct any regular review of his employees. While employed
at the jail, Mr. Ruiz was arrested for domestic violence in 1998 and DWAI in
2001. Mr. Dalessandri explained in his report that periodic evaluations including
criminal background checks could have identified staff members that posed a
particular threat to inmates. Contrary to the conclusion of the district court that
5
Sheriff Salazar stated that in 1998 there were no surveillance cameras in
the control room where Ms. Guel was assaulted nor in the library or commissary
areas were Ms. Gonzales was assaulted. App. 551.
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“[t]here is nothing in the submitted record to suggest that the defendant Salazar
had any knowledge that Ruiz had a proclivity toward sexual crimes,” Tafoya v.
Salazar, 2006 WL 827288, *2 (D. Colo. March 28, 2006), Mr. Dalessandri stated
in his report that prior history of even minor crimes may indicate that the
individual ought not to be trusted with the responsibilities required of detention
officers.
Sheriff Salazar also failed to implement regular training programs in spite
of the availability of such programs offered at little or no cost through
organizations such as the County Sheriffs of Colorado, the National Sheriffs
Association, the National Institute of Corrections in Colorado, and the American
Jail Association, which give information and support to sheriffs regarding
management and training of detention staff. To be sure, Sheriff Salazar
implemented a half day training course on sexual harassment on a single occasion
in November 2001. This demonstrates that the Sheriff was aware of the need for
training, but a reasonable jury could conclude that this effort fell far short of what
was reasonably required.
Perhaps most troubling, Sheriff Salazar failed to implement an adequate
grievance procedure through which inmates could make complaints without fear
of retribution, and which included serious investigation and response. In
Gonzales, we found that Sheriff Salazar’s casual dismissal of complaints by
inmates was an example of his deliberate indifference. 403 F.3d at 1187. Despite
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the assaults against Ms. Guel and Ms. Gonzales, which should have served as a
wake-up call, Sheriff Salazar “failed to assert clear guidelines for female inmates
assuring them that complaints against staff would be acted upon decisively and
promptly without prejudice ... [and] failed to involve himself by staying aware of
developing investigations and decisively affecting the outcome.” App. 215–16
(expert report). To make matters worse, Sheriff Salazar’s jail administrator told
inmates that Sheriff Salazar would back up his officers “one hundred percent,”
making clear that any efforts to file a grievance would be futile. App. 136. Mr.
Dalessandri’s report provides evidence that with an appropriate grievance
procedure, “the inmate should be made to feel comfortable in filing a complaint
and have every expectation that it will be investigated fairly and without bias.”
App. 190. In contrast, Ms. Tafoya testified that she was afraid to report the first
assault by Mr. Ruiz because “I didn’t think anybody would believe me . . . if I
went through the jailers . . . they would try to cover it up, or try to say it was my
fault.” App. 135.
In 2001, the jail administrator eliminated the grievance system entirely
because there were “too many complaints.” App. 82. Although there is no direct
evidence in the record that Sheriff Salazar was actually aware of the elimination
of the grievance procedure, a jury might reasonably conclude that Sheriff Salazar
must have been aware of a significant obstacle to the filing of complaints based
on their sudden scarcity as compared to the former inundation.
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3.
As was true in Gonzales, Ms. Tafoya has presented evidence of disputed
material facts sufficient to create a genuine question as to whether Sheriff Salazar
was deliberately indifferent to the conditions at the Huerfano County Jail. In
Hovater v. Robinson, 1 F.3d 1063 (10th Cir. 1993), and Barney v. Pulsipher, 143
F.3d 1299 (10th Cir. 1998), we did not find a constitutional violation because the
only proof of prison officials’ knowledge of a substantial risk of serious harm to a
female inmate was the violation of written jail policy. “[A] prison official is
liable only if the ‘official knows of and disregards an excessive risk to inmate
health and safety.’ It is not enough to establish that the official should have
known of the risk of harm.” Pulsipher, 143 F.3d at 1310 (quoting Farmer, 511
U.S. at 837). Unlike the absence of any such evidence in Hovater and Pulsipher,
Ms. Tafoya provided testimony that would allow a reasonable jury to infer that
Sheriff Salazar knew of the dangerous conditions at the jail and deliberately
elected not to remedy them. Indeed, the timing of discovery in Ms. Gonzales’
suit against Mr. Martinez and Sheriff Salazar and the content of that evidence as
we discussed in our opinion in Gonzales, reveals that Sheriff Salazar must have
been informed of deficiencies in his jail administration leading to sexual assaults
on female inmates by jail personnel through the process of discovery. 6 Yet even
6
The three civil suits against Sheriff Salazar were filed on July 21, 1999,
October 8, 1999, and January 28, 2000. The district court docket in Gonzales
(continued...)
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after the three civil suits for the 1998 assaults were filed against him, Sheriff
Salazar continued to abstain from any meaningful presence at the jail, did not
ensure an adequate grievance procedure was in place, and vested responsibility
for jail management in unqualified administrators and supervisory staff with
criminal histories. Just as in Gonzales, “it may be fairly inferred Sheriff Salazar’s
purported ignorance of the dangerous conditions in the jail was a direct result of
his lackadaisical attitude toward his responsibility to run the institution.” 403
F.3d at 1187.
C.
The district court found that Ms. Tafoya presented insufficient evidence
regarding Sheriff Salazar’s knowledge of the substantial risk of harm to female
inmates at the jail because of passage of three years between the 1998 assaults
and the assault on Ms. Tafoya in 2001. Although Sheriff Salazar is correct that
no grievances were filed during this time period, this argument rings hollow given
that there was no grievance procedure in place, and both inmates and staff were
actively discouraged from making complaints. The elimination of the grievance
procedure and the corresponding lack of complaints is indicative of the very
supervisory problems with the Huerfano County Jail from which a jury might
6
(...continued)
reveals that, at least in that case, discovery and additional discovery based on
defendant’s motion to dismiss had been completed prior to May 31, 2001 when
the plaintiff’s response brief was filed. See Docket sheet, Gonzales v. Martinez,
No. 99-CV-1152 (D. Colo., filed June 21, 1999).
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infer that Sheriff Salazar was aware of the likelihood that an assault would take
place.
Sheriff Salazar additionally argues that even if he were deliberately
indifferent to some conditions in the jail, this particular assault did not result
from those conditions. Section 1983 “requires proof of an affirmative causal
connection between the actions taken by a particular person ‘under color of state
law’ and the constitutional deprivation.” Williams v. Bennett, 689 F.2d 1370,
1380 (11th Cir. 1982). The relevant inquiry is “whether an official’s acts or
omissions were the cause — not merely a contributing factor — of the
constitutionally infirm condition.” LaMarca, 995 F.2d at 1538. However, “[i]f a
plaintiff establishes a causal link between the defendant’s acts or omissions and
the infirm condition, the defendant is precluded from contending that the
unconstitutional condition was not at least a proximate cause of . . . injuries that
arose from that condition.” Id. (internal quotation marks omitted).
Sheriff Salazar argues that his management decisions did not proximately
cause Mr. Ruiz to sexually assault Ms. Tafoya, and to hold him accountable for
actions taken by Mr. Ruiz, when Mr. Ruiz had no history of sexual misconduct, is
essentially to adopt a theory of respondeat superior. However, acts or
deficiencies that result in a jail atmosphere in which discipline and supervision is
entirely lacking, may be sufficiently related to a particular instance of assault that
a jury is permitted to conclude that the conditions proximately caused the assault.
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See Hale v. Tallapoosa County, 50 F.3d 1579, 1585 (11th Cir. 1995) (“[A]
reasonable jury could find that the beating was caused by the excessive risk of
harm which resulted from the atmosphere of deliberate indifference.”); LaMarca,
at 1538 (“[D]ue to [their] very nature as acts of violence, the rapes that occurred
are not isolated incidents of sexual conduct, but rather flow directly from [the]
lawless prison conditions ...”).
The defendant’s concern that our holding here effectively imposes a theory
of respondeat superior is misplaced. At the summary judgment stage, the
requirement of deliberate indifference imposes a burden on the plaintiff to present
evidence from which a jury might reasonably infer that the prison official was
actually aware of a constitutionally infirm condition. Although a plaintiff may
satisfy this burden by offering circumstantial evidence of the prison official’s
knowledge, because a jury is permitted to infer deliberate indifference based
solely on the obviousness of the threat posed to inmates, Garrett v. Stratman, 254
F.3d 946, 950 (10th Cir. 2001), the mere showing of negligence by an employee
over whom the official exercised supervisory responsibility is insufficient for
liability to attach. A prison official may only be held liable if a jury finds that he
first had actual notice that a constitutional violation was substantially likely to
occur.
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III.
Because Ms. Tafoya did not address the dismissal of her state law claims in
her opening brief, she has waived her state tort claims. Harman v. Pollock, 446
F.3d 1069, 1082 n.1 (10th Cir. 2006); Silverton Snowmobile Club v. United States
Forest Service, 433 F.3d 772, 783 (10th Cir. 2006).
We REVERSE the judgment of the district court dismissing the plaintiff’s
§ 1983 claim, AFFIRM the dismissal of her state tort claims, and REMAND for
further proceedings.
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