FILED
United States Court of Appeals
Tenth Circuit
June 22, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
CRYSTAL CASTILLO; LISA
GARELL; ANGELA GAYTAN;
DANA REEDER; NANCY
ROBINSON,
Plaintiffs - Appellees,
No. 14-6050
v.
CHARLOTTE DAY, in her individual
capacity,
Defendant - Appellant,
and
ANTHONY BOBELU, also known as
Tony Bobelu; RUSSELL
HUMPHRIES; BUD DOLAN; RUBY
JONES-COOPER; JOHN LARSEN;
JAMES SMITH; MARY PAVLISKA,
in their individual capacities,
Defendants.
_______________________________
CRYSTAL CASTILLO; LISA
GARELL; ANGELA GAYTAN;
DANA REEDER; NANCY
ROBINSON,
Plaintiffs - Appellees,
v. No. 14-6051
MARY PAVLISKA, in her individual
capacity,
Defendant - Appellant,
and
CHARLOTTE DAY; ANTHONY
BOBELU, also known as Tony
Bobelu; RUSSELL HUMPHRIES;
BUD DOLAN; RUBY JONES-
COOPER; JOHN LARSEN; JAMES
SMITH, in their individual capacities,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:12-CV-00448-HE)
Kevin L. McClure, Assistant Attorney General, Office of the Attorney General for
the State of Oklahoma, Oklahoma City, Oklahoma, for Defendant-Appellant
Charlotte Day.
David W. Lee (Emily B. Fagan with him on the briefs), Lee Law Center, P.C.,
Oklahoma City, Oklahoma, for Defendant-Appellant Mary Pavliska.
Derek S. Franseen (Micky Walsh with him on the briefs), Beeler, Walsh & Walsh,
P.L.L.C., Oklahoma City, Oklahoma, for Plaintiffs-Appellees.
Before GORSUCH, MURPHY, and MORITZ, Circuit Judges.
MURPHY, Circuit Judge.
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I. Introduction
Plaintiffs are five women who were formerly incarcerated at the Hillside
Community Corrections Center (“Hillside”) in Oklahoma City, Oklahoma. They
filed a 42 U.S.C. § 1983 action against multiple defendants, alleging they were
sexually abused and harassed in violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment. Plaintiffs’ complaint named fifteen
defendants, including Defendant-Appellant Charlotte Day and Defendant-
Appellant Mary Pavliska, both of whom were guards at Hillside during the
relevant period. Plaintiffs alleged Day and Pavliska were aware of the abuse and
did nothing to prevent it.
The claims against several defendants were dismissed without prejudice.
The remaining defendants, except the alleged perpetrator Anthony Bobelu, moved
for summary judgment. The district court granted summary judgment to all
movants except Day and Pavliska. The district ruled a jury could conclude from
the evidence presented that Day and Pavliska were deliberately indifferent to a
known substantial risk of serious harm to the Plaintiffs. In this interlocutory
appeal, Day and Pavliska argue the district court erred by ruling they were not
entitled to qualified immunity. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we dismiss Day’s appeal for lack of jurisdiction and affirm the denial of
qualified immunity as to Pavliska.
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II. Background
The district court’s order contains a comprehensive discussion of the
background facts involving all defendants. We focus only on the background
facts relevant to the appellate arguments raised by Day and Pavliska. Although
the facts are largely undisputed, the district court properly adopted the Plaintiffs’
account if the parties’ versions differed. Scott v. Harris, 550 U.S. 372, 378
(2007).
Day and Pavliska were employed by the Oklahoma Department of
Corrections and worked at Hillside. The Plaintiffs were all incarcerated at
Hillside from February 2008 until August 2009. As part of an off-site prison
work program, Plaintiffs performed landscaping work and grounds maintenance at
the Oklahoma Governor’s Mansion (the “Mansion”). While Plaintiffs were at the
Mansion their off-site supervisor was Anthony Bobelu, the Mansion’s
groundskeeper. No guard from Hillside remained with Plaintiffs during their off-
site assignment.
Plaintiffs allege that Bobelu and Russell Humphries, a cook at the Mansion,
harassed and sexually assaulted them. Plaintiff Reeder alleges Bobelu began
sexually harassing her in October 2007. She testified that Bobelu sexually
assaulted her on multiple occasions, and Bobelu and Humphries raped her on
April 22, 2008. Reeder alleges on January 13, 2009, the day she was released
from DOC custody, Bobelu forced her to engage in oral sex by threatening to
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have her release date delayed. Plaintiff Garell testified that Bobelu raped her in
December 2008, February 2009, and April 2009. Plaintiff Robinson worked at
the Mansion until December 2008. She testified Bobelu made sexual advances
and directed inappropriate sexual remarks toward her. Plaintiff Gaytan testified
that Bobelu made sexual advances and touched her inappropriately. The dates of
the incidents involving Gaytan are not clear from the evidence presented.
Plaintiff Castillo testified she worked at the Mansion in April and May 2009.
During that time, Bobelu made inappropriate comments, propositioned her, and
fondled her.
The specific allegations against Day and Pavliska relate to their knowledge
of the sexual misconduct and assaults alleged by Plaintiffs. Plaintiff Reeder
testified she told Pavliska on January 12, 2009, that she had been sexually abused
by Bobelu and Humphries. Reeder admitted she did not provide any details of the
assaults but stated she used the phrase “sexual abuse.” According to Reeder,
Pavliska told her to return to her dorm and she never heard anything else about
the report she made to Pavliska. To the best of Reeder’s knowledge, Pavliska did
not refer her complaint to anyone. Pavliska testified she reported the
conversation to Day, but Day denies being told.
Plaintiff Garell testified she told Pavliska in February 2009 there were
“things going on at the governor’s mansion that shouldn’t be going on” and “he
was doing things that he shouldn’t be doing.” Pavliska told Garell “to be quiet”
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or she would only cause problems for herself. Although Garell did not refer to
Bobelu by name when she spoke to Pavliska, she testified she believed Pavliska
knew both that Bobelu was involved and that the conduct involved sexual assault
because Pavliska told her other inmates had made similar reports to her.
Garell also testified she had a discussion with Day about Bobelu and a
former inmate named Callie Johnson who was released from incarceration in July
2008. Plaintiffs have asserted Johnson had a sexual relationship with Bobelu that
began during her incarceration and continued after her release. According to
Garell, when Day picked the inmates up from the Mansion shortly after Johnson’s
release, Day asked her, “So, are you the new Callie Johnson? Are you going to
have sex with him, too?” Day also told the inmates seated in the van she knew
“there [were] things going on at the governor’s mansion and she wanted [the
inmates] to tell her about it.” Garell testified she was “kind of shocked” and did
not respond to Day’s comments.
Plaintiffs filed their original complaint on April 24, 2012, and their
amended complaint on August 15, 2012. Claims were raised against Day and
Pavliska only in their individual capacities. Both defendants moved for summary
judgment, asserting they were entitled to qualified immunity. Day argued the
facts, considered in the light most favorable to Plaintiffs, were insufficient to
show she had any knowledge of the alleged misconduct of the perpetrators.
Pavliska made a similar argument, and also asserted Plaintiffs’ allegations of
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harassment and abuse, even if true, did not amount to a constitutional violation.
The district court denied both motions and these interlocutory appeals followed.
III. Discussion
A. Appellate Jurisdiction
The denial of summary judgment is ordinarily not appealable. Ortiz v.
Jordan, 562 U.S. 180, 188 (2011). The Supreme Court, however, has “recognized
a limited exception to the categorization of summary-judgment denials as
nonappealable orders” applicable when a defendant has asserted a qualified
immunity defense. Id. “[I]mmediate appeal from the denial of summary
judgment on a qualified immunity plea is available when the appeal presents a
purely legal issue . . . . However, instant appeal is not available . . . when the
district court determines that factual issues genuinely in dispute preclude
summary adjudication.” Id. (quotation omitted). Thus, while this court “lack[s]
jurisdiction to review the district court’s rulings on the sufficiency of the
evidence, we nevertheless may determine whether a given set of facts violates a
clearly established constitutional right.” Riggins v. Goodman, 572 F.3d 1101,
1107 (10th Cir. 2009) (citation omitted). “Insofar as we have jurisdiction to
review the denial of a qualified-immunity motion for summary judgment, our
review is de novo.” Deutsch v. Jordan, 618 F.3d 1093, 1099 (10th Cir. 2010).
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B. Appeal No. 14-6050 - Charlotte Day
“[A] prison 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 v.
Brennan, 511 U.S. 825, 837 (1994). Day moved for summary judgment, asserting
she was entitled to qualified immunity because Plaintiffs’ evidence was
insufficient to show she knew of any excessive risk to Plaintiffs’ health or safety.
Day argued the evidence failed to show she knew any of the Plaintiffs were being
sexually harassed, sexually assaulted, or raped. According to Day, she first
learned of the Plaintiffs’ allegations when she saw a television news story
exposing Bobelu’s romantic relationship with ex-inmate Callie Johnson. At that
time, Bobelu had already been removed from his job at the Mansion. Day
disputed she asked Plaintiff Garell, “So, are you the new Callie Johnson? Are
you going to have sex with him, too?” However, she argued that even if Garell’s
testimony is true, the most that could reasonably be inferred from the comment
was that she knew Bobelu and an ex-inmate began a consensual sexual
relationship after the inmate was released from incarceration. Thus, according to
Day, the undisputed facts show she had no knowledge of any sexual misconduct
at the time it was occurring.
The district court rejected Day’s argument, disagreeing with Day that her
comment to Garell about Callie Johnson could only be interpreted to mean Day
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was asking about a post-incarceration consensual relationship. The court also
pointed to other evidence from which a jury could conclude Day knew about
inappropriate conduct at the Mansion while Bobelu was employed there.
Specifically, the court referenced Reeder’s testimony that she told defendant
Pavliska she had been sexually abused at the Mansion and Pavliska’s testimony
that she reported this conversation to Day. According to the district court,
Pavliska’s testimony alone “is enough to create a fact question for the jury as to
whether Day was deliberately indifferent to a known substantial risk of serious
harm to the Hillside inmates.”
In her appellate briefing, Day challenges the district court’s sufficiency
determination, arguing she had “no knowledge of any facts of a substantial risk of
harm to any of the Plaintiffs from which she could have known that she would be
violating the Plaintiff’s Eighth Amendment rights.” Although Day attempts to
characterize the issue on appeal as Plaintiffs’ failure to assert a violation of a
constitutional right under clearly established law, her argument is limited to a
discussion of her version of the facts and the inferences that can be drawn
therefrom. Thus, Day’s argument is actually a challenge to the district court’s
conclusion Plaintiffs presented sufficient evidence to survive summary judgment. 1
1
Day’s appellate brief contains a lengthy discussion of supervisor liability,
arguing the mens rea standard applicable when a plaintiff asserts an Eighth
Amendment claim based on supervisory liability is not clearly established. Even
Day acknowledges this argument is wholly irrelevant, prefacing her discussion
(continued...)
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As such, this court lacks jurisdiction to review her appeal at the interlocutory
stage. See Gray v. Baker, 399 F.3d 1241, 1247-48 (10th Cir. 2005) (dismissing
an interlocutory appeal from the denial of summary judgment based on qualified
immunity because the “arguments involve[d] the district court’s determinations of
evidence sufficiency”). Accordingly, Day’s appeal is dismissed for lack of
appellate jurisdiction. 2
C. Appeal No. 14-6051 - Mary Pavliska
1. Qualified Immunity
Unlike Day, Pavliska presents an appellate argument over which we do
have jurisdiction. She asserts Plaintiffs cannot establish a violation of their
Eighth Amendment rights based on the facts they have alleged.
In her motion for summary judgment, Pavliska admitted that “an inmate has
a constitutional right to be secure in her bodily integrity and free from attack by
1
(...continued)
with the statement: “Assuming this Court ignores the fact that Plaintiffs did not
sue Day in her supervisory capacity . . . .” Day’s appellate brief also contains an
irrelevant discussion of the continuing violation theory, claiming the district court
erred by applying the continuing violations doctrine to deny her qualified
immunity because application of that doctrine to Plaintiffs’ claims is not clearly
established. This argument is puzzling in light of the district court’s
unchallenged conclusion that “Day did not move for summary judgment on the
ground that plaintiffs’ claims were barred by the statute of limitations.”
2
Plaintiffs have not argued this court lacks jurisdiction to hear Day’s
appeal. This court, however, has an independent obligation to examine its own
jurisdiction at every stage of the litigation. Devon Energy Prod. Co. v. Mosaic
Potash Carlsbad, Inc., 693 F.3d 1195, 1208 n.10 (10th Cir. 2012).
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prison guards.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993). She
likewise admitted that the sexual assault of an inmate by a guard is a violation of
the inmate’s Eighth Amendment rights. See Smith v. Cochran, 339 F.3d 1205,
1212 (10th Cir. 2003) (holding an inmate’s allegations of rape satisfy the
objective component of an Eighth Amendment excessive force claim because
“[s]exual abuse is repugnant to contemporary standards of decency”). She
argued, however, that she was entitled to qualified immunity because (1)
Plaintiffs did not allege she affirmatively violated their constitutional rights, (2)
she could not have failed to protect Plaintiffs from alleged constitutional
violations because the conduct of Bobelu and Humphries does not rise to the level
of a constitutional violation, and (3) she did not have actual knowledge of the bad
acts of Bobelu and Humphries. The district court rejected each of these
arguments. 3
When a defendant moves for summary judgment on the basis of qualified
immunity, the burden shifts to the plaintiff to demonstrate, on the facts alleged,
that (1) the defendant violated her constitutional or statutory rights, and (2) the
right was clearly established at the time of the alleged unlawful activity. Pearson
v. Callahan, 555 U.S. 223, 232 (2009). If the plaintiff cannot meet either part of
3
The district court, however, granted summary judgment to Pavliska as to
the claims raised by Plaintiff Robinson, concluding Robinson’s claims were time-
barred. Defendant Day did not move to dismiss Robinson’s claims as time-
barred.
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this burden, the defendant is entitled to qualified immunity. Swanson v. Town of
Mountain View, 577 F.3d 1196, 1199 (10th Cir. 2009).
As to the first part of their burden, Plaintiffs assert Pavliska violated their
Eighth Amendment right to be free from sexual harassment and physical assault
while incarcerated at Hillside by failing to take reasonable measures to abate the
risk they faced from Bobelu and Humphries. “[I]t is clearly established that a
prison official’s deliberate indifference to sexual abuse by prison employees
violates the Eighth Amendment.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th
Cir. 2013). “[A] prison official may be held liable under the Eighth Amendment
for denying humane conditions of confinement only if he knows that inmates face
a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847; id. at 844 (“[P]rison
officials who actually knew of a substantial risk to inmate health or safety may be
found free from liability if they responded reasonably to the risk, even if the harm
ultimately was not averted.”). Plaintiffs allege Pavliska’s own failure to
reasonably respond to a substantial risk of serious harm to them violated their
Eighth Amendment rights. Pavliska, however, argues she cannot be liable for the
actions of Bobelu and Humphries because she did not actively participate in the
sexual harassment and abuse alleged by Plaintiffs and she had no official
authority over Bobelu or Humphries. As we understand her position, she argues a
prison guard can never be liable under the Eighth Amendment when
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unconstitutional acts are committed by another guard unless the perpetrator was
her subordinate. 4
More than three decades ago, this court held that the Eighth Amendment
imposes a duty on prison officials to protect prisoners from violence at the hands
of other inmates. Ramos v. Lamm, 639 F.2d 559, 572-74 (10th Cir. 1980). In
Hovater v. Robinson, the county sheriff was accused of failing to protect female
inmates from a prison guard who was sexually assaulting them. 1 F.3d at 1064.
Although this court affirmed the grant of qualified immunity to the sheriff based
on his lack of knowledge, we stated “a prison official’s failure to protect an
inmate from a known harm may constitute a constitutional violation.” Id. at 1068
(relying on Santiago v. Lane, 894 F.2d 218, 225 (7th Cir. 1990), in which the
Seventh Circuit held that “where it can be inferred that an institutional employee
should have realized that there was a strong likelihood of an attack that employee
can be held liable for violating the Eighth Amendment” (quotation omitted)).
4
Relying on authority from other circuit courts of appeals, Pavliska also
argues she cannot be held liable under a theory of bystander liability because
Plaintiffs do not claim she was present when any of the alleged sexual assaults
occurred. See Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (holding
bystander liability “will not attach where a [state actor] is not present at the scene
of the constitutional violation”). To the extent Pavliska’s arguments could be
construed as addressing either supervisory or bystander theories of liability, they
are misplaced because Plaintiffs’ claims are not premised on either theory. See
Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (holding a defendant-
supervisor is not responsible for constitutional violations under a theory of
supervisory liability unless the plaintiff can demonstrate, inter alia, “the
defendant promulgated, created, implemented or possessed responsibility for the
continued operation of a policy”).
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More recently, we reversed the grant of qualified immunity to prison officials in a
§ 1983 civil rights suit alleging employees of the Colorado Department of
Corrections knew an inmate had been physically assaulted by members of a prison
gang but failed to protect him from future harm. Howard v. Waide, 534 F.3d
1227, 1234 (10th Cir. 2008) (involving claims “prison officials acted with
deliberate indifference to a known substantial risk of serious harm”). This court’s
precedent confirms Plaintiffs’ position that a prison guard’s failure to take
reasonable steps to protect an inmate from a known risk of sexual abuse by
another prison guard 5 can be a violation of the Eighth Amendment. 6 Accordingly,
we reject Pavliska’s argument that a prison guard who knows of, yet fails to
reasonably respond to, a risk of harm created by another guard can only be liable
if the perpetrator is a subordinate.
5
“[P]ersons to whom the state delegates its penological functions, which
include the custody and supervision of prisoners, can be held liable for violations
of the Eighth Amendment.” Smith v. Cochran, 339 F.3d 1205, 1215-16 (10th Cir.
2003).
6
Pavliska briefly argues for the first time in her appellate brief that it was
not clearly established that a prison guard can violate an inmate’s Eighth
Amendment rights by failing to report sexual abuse perpetrated by another guard
over which she has no official authority. See Estate of Booker v. Gomez, 745
F.3d 405, 411 (10th Cir. 2014) (“To determine whether the right was clearly
established, we ask whether the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is doing violates
that right.” (quotation omitted)). Because this argument was not presented to the
district court, it is not developed and we will not address it. Salazar v. Butterball,
LLC, 644 F.3d 1130, 1142 n.8 (10th Cir. 2011).
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Pavliska makes one additional challenge to the denial of qualified
immunity. Because “only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment,” a prison official must act with “deliberate
indifference to inmate health or safety” to violate the inmate’s constitutional
rights. Farmer, 511 U.S. at 834 (quotation omitted). Deliberate indifference has
both an objective and a subjective component. Callahan v. Poppell, 471 F.3d
1155, 1159 (10th Cir. 2006). A plaintiff can meet her burden under the objective
component by showing the harm she suffered was sufficiently serious. Id. In her
motion for summary judgment, Pavliska argued the conduct of Bobelu and
Humphries, while inappropriate and “despicable,” was not sufficiently serious to
constitute a constitutional violation. 7 Thus, she further argued, any failure on her
part to protect Plaintiffs could not, itself, be a constitutional violation.
On appeal, Pavliska has abandoned her argument that Plaintiffs have failed
to allege a cognizable deliberate indifference claim based on allegations they
were sexually harassed and assaulted by Bobelu and Humphries, conceding “the
objective component is not at issue.” Cf. Smith, 339 F.3d at 1212 (holding an
7
Pavliska made this argument as to the claims raised by Plaintiffs Castillo
and Gaytan but the district court rejected it. Although this court has previously
stated that not all sexual harassment by prison guards is “the sort of violence or
threats of violence cognizable in the conditions of confinement cases the
[Supreme Court] has addressed,” Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th
Cir. 1995), we have also stated that allegations of verbal harassment of female
prisoners by officers may be cognizable when such harassment is combined with
sexual assaults, Barney v. Pulsipher, 143 F.3d 1299, 1310 n.11 (10th Cir. 1998).
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inmate’s allegations of rape satisfy the objective component of an Eighth
Amendment excessive force claim because “[s]exual abuse is repugnant to
contemporary standards of decency”); Barney v. Pulsipher, 143 F.3d 1299, 1310
n.11 (10th Cir. 1998) (noting allegations of verbal harassment of female inmates
by officers may be cognizable when such harassment is combined with sexual
assaults on the inmates). She contends, however, that Plaintiffs’ evidence is
insufficient to show she acted with deliberate indifference to their health or
safety, focusing on the subjective component of the deliberate indifference
standard which “examines the state of mind of the defendant, asking whether
[she] knew of and disregarded an excessive risk to inmate health or safety.” Al-
Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014) (quotation omitted).
“To prevail on the subjective component, the prisoner must show that the
defendant[ ] knew [the prisoner] faced a substantial risk of harm and disregarded
that risk, by failing to take reasonable measures to abate it.” Callahan, 471 F.3d
at 1159 (quotation omitted). Pavliska asserts Plaintiffs’ evidence, at most, shows
she acted negligently. See Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1286
(10th Cir. 1999) (“[D]eliberate indifference is a stringent standard of fault. A
showing of simple or even heightened negligence will not suffice.” (quotations
and citation omitted)). We lack jurisdiction to consider Pavliska’s argument
because it involves a determination of evidence sufficiency and not an abstract
question of law. Behrens v. Pelletier, 516 U.S. 299, 313 (1996)
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(“[D]eterminations of evidentiary sufficiency at summary judgment are not
immediately appealable merely because they happen to arise in a
qualified-immunity case . . . .”). Pavliska, herself, concedes in her appellate brief
that she is challenging the district court’s conclusion “the reports of Garell and
Reeder to Pavliska were sufficient to create a jury question as to whether Pavliska
violated their rights.” See Bass v. Richards, 308 F.3d 1081, 1086 (10th Cir. 2002)
(“Those portions of the summary judgment denial . . . which involve a
determination of evidence sufficiency . . . are not appealable.” (citing Johnson v.
Jones, 515 U.S. 304, 313 (1995)). She summarizes her argument as follows:
“[T]he facts in this case did not prove the subjective component of the Eighth
Amendment’s deliberate indifference standard.” The question of what Pavliska
subjectively knew is a question of fact. Farmer, 511 U.S. at 842. Thus, we have
no jurisdiction to consider this argument.
2. Continuing Violations Doctrine
Finally, Pavliska argues the district court erred by applying the continuing
violations doctrine to Plaintiffs’ claims. She asserts she cannot be liable for any
alleged act that occurred prior to January 12, 2009, the day Reeder approached
her and told her about sexual misconduct at the Mansion. Plaintiffs, however,
concede this point in their opening brief, stating: “Mary Pavliska should be liable
for the violations for failing to act once she became aware of Dana Reeder’s
allegations.” Further, the district court’s ruling against Pavliska’s motion for
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summary judgment was based on its conclusion Reeder’s conversation with
Pavliska put Pavliska on notice of a risk to Plaintiffs. Accordingly, Pavliska’s
argument is irrelevant because the claims asserted against her are based only on
incidents occurring after January 12, 2009.
3. Conclusion
To the extent Pavliska’s appeal raises issues of law, we affirm the denial of
summary judgment by the district court. To the extent her appeal challenges the
district court’s ruling that a jury could conclude she acted with subjective
deliberate indifference, we dismiss the appeal for lack of appellate jurisdiction.
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