Keith v. Koerner

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 9, 2016

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

TRACY KEITH,

Plaintiff - Appellant

v.
No. 15-3219
RICHARD D. KOERNER,

Defendant - Appellee,

and

ANASTACIO GALLARDO,

Defendant.
_________________________________

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:11-CV-02281-DDC)
_________________________________

Ann Marie Duffy, Mayer Brown LLP, Washington, District of Columbia (John Kurtz,
Hubbard & Kurtz, LLP, Kansas City, Missouri, with her on the briefs), for Plaintiff-
Appellant.

John Wesley Smith, Assistant Attorney General, Office of the Attorney General for the
State of Kansas, Topeka, Kansas, for Defendant-Appellee.
_________________________________

Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________
 While incarcerated at the Topeka Correctional Facility (TCF), an all-female state

prison, Tracy Keith was raped by a prison maintenance employee. Ms. Keith filed a

§ 1983 suit alleging that prison officials—including Warden Richard Koerner—violated

her Eighth Amendment rights by creating an environment in which sexual misconduct

was likely to occur. The district court granted summary judgment to Warden Koerner

based on qualified immunity. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm in part and reverse in part.

I. BACKGROUND1

A. Factual History

Tracy Keith was incarcerated at TCF from November 2006 to May 2010. During

Ms. Keith’s first year at TCF, Richard Koerner was warden and Anastacio “Ted”

Gallardo was a maintenance instructor. Mr. Gallardo taught a vocational plumbing class

for a group of inmates, including Ms. Keith and Sandra McMillan.

On October 1, 2007, Ms. McMillan proposed that Ms. Keith “would be helped out

financially” if she had a “sexual interaction” with Mr. Gallardo. Ms. Keith agreed to

perform oral sex but said she would not have intercourse with Mr. Gallardo. The next

day, Mr. Gallardo, Ms. Keith, and Ms. McMillan left the plumbing class under the

pretense of picking up a sink and went to an old gymnasium used for storage. The group

1
We described Ms. Keith’s basic factual allegations in Keith v. Koerner (Keith I),
707 F.3d 1185, 1187 (10th Cir. 2013), where we affirmed the district court’s denial of
Warden Koerner’s motion to dismiss. With the benefit of discovery, the parties presented
a more complete version of the facts at summary judgment. We therefore provide
additional facts relevant to the issues in this appeal.

2
entered the building and Ms. Keith performed oral sex on Mr. Gallardo, while Ms.

McMillan acted as a lookout. Mr. Gallardo then tried to kiss Ms. Keith. When she pulled

away, he pulled down her pants and forcibly penetrated her.

About two weeks later, Ms. Keith suspected she might be pregnant. She and Mr.

Gallardo discussed abortive options, but Mr. Gallardo soon abandoned his position at

TCF, coming to work for the last time on November 5, 2007. Ten days later, TCF

administrators received an anonymous note, which read, “Tracy Keith is pregnant. It is

Ted Gallardo’s.” An internal investigation began, including a test that confirmed Ms.

Keith’s pregnancy. Warden Koerner then referred the case to the Topeka Police

Department. Mr. Gallardo was prosecuted in Kansas state court and pled guilty to

unlawful sexual relations and two counts of traffic in contraband in a correctional

institution. At the end of December 2007, Ms. Keith terminated her pregnancy.

B. Procedural History

On May 17, 2011, Ms. Keith filed a § 1983 suit against Mr. Gallardo, Warden

Koerner, and other TCF and Kansas Department of Corrections (KDOC) employees.

When Mr. Gallardo failed to answer, the district court entered default judgment against

him. The district court also granted in part a Rule 12(b)(6) motion, dismissing the claims

against all other defendants except Warden Koerner. On interlocutory appeal, we

affirmed the denial of the motion to dismiss as to Warden Koerner individually. Keith v.

Koerner (Keith I), 707 F.3d 1185 (10th Cir. 2013).

Warden Koerner then filed two motions for summary judgment. He first argued

Ms. Keith’s claims were barred by the statute of limitations, but the district court denied

3
this motion. Warden Koerner later filed a second motion based on qualified immunity,

which the district court granted.

II. DISCUSSION

Ms. Keith now appeals. Warden Koerner maintains the district court correctly

granted summary judgment based on qualified immunity but also argues we can

alternatively affirm based on the statute of limitations. Upon reviewing the evidence

presented at summary judgment, we conclude genuine issues of material fact preclude

summary judgment in Warden Koerner’s favor on either basis.

A. Qualified Immunity

“Our review of summary judgment orders in the qualified immunity context

differs from that applicable to review of other summary judgment decisions.” Thomson v.

Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When a defendant asserts

qualified immunity at summary judgment, the burden shifts to the plaintiff to show that:

(1) the defendant violated a constitutional right and (2) the constitutional right was

clearly established.” Id. (citation omitted). Although “we will construe the facts in the

light most favorable to the plaintiff as the nonmoving party,” id., the plaintiff bears a

“heavy two-part burden,” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)

(citation omitted). “If, and only if, the plaintiff meets this two-part test does a defendant

then bear the traditional burden of the movant for summary judgment—showing that

there are no genuine issues of material fact and that he or she is entitled to judgment as a

matter of law.” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (citation

omitted). But “[w]hile qualified immunity was meant to protect officials performing
4
discretionary duties, it should not present an insurmountable obstacle to plaintiffs seeking

to vindicate their constitutional rights.” Lawmaster v. Ward, 125 F.3d 1341, 1351 (10th

Cir. 1997).

1. Constitutional Violation

We must first determine whether Ms. Keith has established a constitutional

violation. “[A]n 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). But we address only the claims against Warden Koerner, which require proof that

Warden Koerner personally committed a constitutional violation. See Ashcroft v. Iqbal,

556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits,

a plaintiff must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.”). Thus, it is not enough that Warden

Koerner acted in a supervisory role when Mr. Gallardo violated Ms. Keith’s

constitutional rights. Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). Rather,

Ms. Keith “must show an ‘affirmative link’ between [Warden Koerner] and the

constitutional violation,” which requires proof of three interrelated elements: (1) personal

involvement; (2) causation; and (3) state of mind. Schneider v. City of Grand Junction

Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614 F.3d at 1195).

a. Personal involvement

Before the Supreme Court’s decision in Ashcroft v. Iqbal, a § 1983 plaintiff had

some flexibility in how to establish a supervisory defendant’s personal involvement: she

could do so by showing personal participation; exercise of control or direction; failure to

5
supervise; or “promulgation, creation, implementation, or utilization of a policy that

caused a deprivation of plaintiff’s rights.” Dodds, 614 F.3d at 1195. We have since

recognized that “Iqbal may have changed the § 1983 supervisory liability landscape,” but

“we have not yet had occasion to determine what allegations of personal involvement . . .

meet Iqbal’s stricter liability standard.” Id. at 1198, 1199. In Dodds, however, we

explained,

Whatever else can be said about Iqbal, . . . we conclude the following basis
of § 1983 liability survived it and ultimately resolves this case: § 1983
allows a plaintiff to impose liability upon a defendant-supervisor who
creates, promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy the enforcement . . . of
which subjects, or causes to be subjected that plaintiff to the deprivation of
any rights secured by the Constitution.

Id. at 1199 (internal quotation marks, citations, and ellipses omitted). Similarly here, we

need not define the standard for personal involvement in all instances because Ms.

Keith’s theories of liability either fail on their merits or fall within the basis of liability

we recognized in Dodds as surviving Iqbal.

To establish personal involvement, Ms. Keith first alleges a failure to train by

Warden Koerner. Although we have not determined whether a failure to train satisfies the

post-Iqbal personal-involvement requirement, the evidence in this case does not support

Ms. Keith’s theory even under our pre-Iqbal precedent. Accordingly, we need not

determine whether the failure-to-train theory would be legally sufficient under a

heightened standard. Second, Ms. Keith argues Warden Koerner failed to implement and

enforce policies that would have prevented the sexual assault by Mr. Gallardo. Because

we concluded in Dodds that personal involvement may be established by a supervisor’s

6
responsibility for policies, Ms. Keith may rely on the same theory here. We discuss each

of these personal liability theories below.

i. Failure to train

Turning first to Ms. Keith’s failure-to-train theory, a supervising prison official

may be liable “[w]here there is essentially a complete failure to train, or training that is so

reckless or grossly negligent that future misconduct is almost inevitable.” Houston v.

Reich, 932 F.2d 883, 888 (10th Cir. 1991) (alteration in original) (citation omitted). It is

not enough to allege “general deficiencies” in a particular training program. Lopez v.

LeMaster, 172 F.3d 756, 760 (10th Cir. 1999). Rather, a plaintiff “must identify a specific

deficiency in the [entity’s] training program closely related to his ultimate injury, and

must prove that the deficiency in training actually caused his jailer to act with deliberate

indifference to his safety.” Id. Ms. Keith has not met this burden.

Ms. Keith relies on a Performance Audit Report (Audit Report),2 prepared by the

Kansas Legislative Division of Post Audit, in which auditors concluded TCF “failed to

provide targeted training” related to the unique issues arising in a female-only facility.

The Audit Report further stated KDOC does not require or provide specialized training

for investigative staff. But in her summary judgment briefing, Ms. Keith admitted that all

TCF employees, including Mr. Gallardo, were “given specific training tailored to issues

of supervising female inmates and staff-inmate relations.”

2
The district court concluded the Audit Report was admissible as a public record
under Rule 803(8) of the Federal Rules of Evidence. Because Warden Koerner does not
challenge this ruling on appeal, we will consider the Audit Report as evidence relevant to
the motion for summary judgment.

7
 Even if the Audit Report creates a dispute about the extent of training provided to

TCF employees, it does not provide a basis from which a jury could find “essentially a

complete failure to train” that made sexual misconduct “almost inevitable.” Houston, 932

F.2d at 888. The Audit Report identifies only general training omissions, none of which

provide a basis from which a jury could conclude that the training of TCF employees was

so wholly inadequate that it left employees with the belief they could sexually assault

inmates. To the contrary, the evidence confirms Mr. Gallardo received specific training

about the impropriety of and potential consequences for engaging in sexual misconduct.

See Schneider, 717 F.3d at 774 (finding it “unclear how the training advocated by [the

plaintiff] would have prevented the assault on her” where the responsible officer was

specifically told “that it was unacceptable to engage in sexual relationships with women

whom he met through his job”).

During orientation, each new TCF employee receives a copy of KDOC Internal

Management Policy and Procedure 02-118 (IMPP 02-118), which “absolutely forbids

acts of undue familiarity, including sexual misconduct with offenders,” and defines

“sexual misconduct” as “[s]exual behavior that is directed by an employee toward an

offender(s).” Mr. Gallardo certified he read and received a copy of IMPP 02-118 and

understood a violation would result in disciplinary action, up to and including dismissal.

Mr. Gallardo also confirmed he had read and understood Kan. Stat. Ann. § 21-3520,

which makes it a felony for any KDOC employee to engage in unlawful sexual relations,

i.e., “consensual sexual intercourse, lewd fondling or touching, or sodomy with” an

8
inmate. And Mr. Gallardo acknowledged that violation of the statute would be grounds

for dismissal and possibly prosecution.

Because Warden Koerner provided multiple, explicit prohibitions against sexual

interaction with inmates, we cannot conclude he failed to train his employees in a way

that would establish his personal involvement in Ms. Keith’s injury. Indeed, we have held

that allegations of failure to train were inadequate to support a § 1983 claim where the

officer completed a state training program and we found no evidence of a deficiency in

the training. Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998). In Barney, we

further explained that, even if the training was “less than adequate, we [were] not

persuaded that a plainly obvious consequence of a deficient training program would be

the sexual assault of inmates. Specific or extensive training hardly seems necessary for a

jailer to know that sexually assaulting inmates is inappropriate behavior.” Id. Similarly

here, there is no evidence that additional training would have prevented Mr. Gallardo’s

misconduct. Indeed, Mr. Gallardo raped Ms. Keith after acknowledging that engaging in

sex with or sexually assaulting an inmate was grounds for termination and criminal

prosecution.

ii. Failure to implement and enforce policies

As an alternative basis to establish personal involvement, Ms. Keith asserts

Warden Koerner failed to create and enforce policies to protect TCF inmates from

misconduct by employees. In particular, Ms. Keith maintains Warden Koerner (1) failed

to respond appropriately to misconduct by Mr. Gallardo, (2) overlooked problems within

9
the TCF maintenance department, and (3) failed to enforce policies to curb misconduct

throughout TCF generally.

Before reviewing Ms. Keith’s evidence in each of these areas, we first pause to

explain the two types of conduct relied upon by Ms. Keith. The Audit Report and TCF

records document misconduct in the form of “undue familiarity” and “sexual

misconduct.” “Undue familiarity” includes conduct that “can range from casual

conversation all the way to sexual misconduct,” whereas “sexual misconduct” is defined

as “[s]exual behavior that is directed by an employee toward an offender(s).” As

explained below, Ms. Keith correctly asserts it is “clearly established that the

Constitution forbids a prison supervisor from acting with deliberate indifference to

known risks of sexual assault.” But Ms. Keith has not identified case law clearly

establishing a warden’s personal liability based solely on instances of inappropriate

conduct that may be considered undue familiarity but that do not rise to the level of

sexual misconduct. Consequently, we distinguish between these forms of misconduct in

analyzing Warden Koerner’s personal involvement, relying on the evidence relating to

undue familiarity to the extent it provides context for the conditions at TCF. See

Gonzales v. Martinez, 403 F.3d 1179, 1187 (10th Cir. 2005) (“The undisputed evidence

of the physical assaults on inmates set against the facts of Sheriff Salazar’s knowledge of

reported risks to inmate health or safety, including the documented lapse of security in

the control room, complaints of sexual harassment and intimidation, Dominick’s

demotion for, as Sergeant Zudar characterized it, ‘a combination of things,’ as well as the

presence in the record of Ms. Tefteller’s letter, which she attested was handed to Major

10
Bob, surely raise a reasonable inference that Sheriff Salazar knew of and disregarded an

excessive risk to Ms. Gonzales.” (emphasis added)). Moreover, because we must

“consider the conditions of confinement as a whole” to determine whether Warden

Koerner may be liable for a constitutional violation, Mitchell v. Maynard, 80 F.3d 1433,

1442 (10th Cir. 1996), we also consider the evidence of undue familiarity as part of the

totality of the circumstances present at TCF. Keeping in mind the distinction between

undue familiarity and sexual misconduct, we now turn to the evidence presented by Ms.

Keith at summary judgment.

1) Misconduct by Mr. Gallardo

Ms. Keith first argues Warden Koerner knew about but ignored previous

misconduct by Mr. Gallardo. Ms. Keith cites a July 9, 2007, grievance filed by an inmate

named Kelley Lane. Ms. Lane claimed Mr. Gallardo did not supervise the plumbing

class, singled her out for negative treatment, and had inappropriate conversations with

inmates about drinking, sex, and other personal topics. Ms. Lane was particularly

troubled when Mr. Gallardo asked about a tattoo on her boyfriend’s genitalia.

Warden Koerner testified he never saw this grievance until his deposition and was

unaware of any problems with Mr. Gallardo prior to the incident involving Ms. Keith.

But Deputy Warden William Cummings testified he gave Warden Koerner the grievance

when it was filed. Viewing this evidence and drawing all reasonable inferences in Ms.

Keith’s favor, as we must, we assume Warden Koerner received Ms. Lane’s grievance

and knew about the allegations.

11
 Standing alone, however, these facts are insufficient to establish Warden Koerner

failed to respond to a known risk that Mr. Gallardo might sexually assault an inmate. Ms.

Lane reported conversations that were inappropriately sexual in nature, but none of the

allegations suggested Mr. Gallardo might sexually assault an inmate. Mr. Gallardo’s

conduct toward Ms. Lane is appropriately classified as “undue familiarity.” Although Mr.

Gallardo was not disciplined for undue familiarity based on Ms. Lane’s grievance, TCF

officials responded to Ms. Lane’s concerns by removing her from Mr. Gallardo’s class.

This evidence, viewed in isolation, could not support a finding that Warden

Koerner failed to respond to a known risk posed by Mr. Gallardo. It is relevant, however,

to our analysis of whether Ms. Keith generally presented evidence sufficient to support a

reasonable inference of Warden Koerner’s personal involvement in the constitutional

violation. See Gonzales, 403 F.3d at 1187 (“[A] prison official could not escape liability

by showing although ‘he was aware of an obvious, substantial risk to inmate safety, he

did not know that the complainant was especially likely to be assaulted by the specific

prisoner who eventually committed the assault.” (citation omitted)). As a result, we

consider Mr. Gallardo’s previous undue familiarity in conjunction with other evidence

offered by Ms. Keith of problems at TCF, both within the maintenance program and

throughout the facility.

2) Problems within the TCF maintenance program

Addressing issues specific to the TCF maintenance program, Ms. Keith relies on

the Audit Report’s statement that “conditions were ripe for staff misconduct to have

occurred in this Program without being detected.” Such conditions included (1) minimal

12
supervision and monitoring; (2) lack of a set curriculum; and (3) past instances of

improper behavior.

With respect to monitoring and supervision issues, the Audit Report explains,

Although cameras were in the classrooms, instructors received sporadic
supervision and no additional monitoring. When inmates and instructors
were moving around the Facility, no one monitored which inmates were
going with which staff person, where they were going, or how long they
were gone. Additionally, some buildings where supplies were stored and
work orders were being done didn’t have cameras.

In addition, Warden Koerner testified that the maintenance program lacked a structured

curriculum, which resulted in a failure to provide effective vocational training for the

inmates. And Warden Koerner agreed that the maintenance program provided

opportunities for employees “to be outside of other people’s eyesight, outside of cameras,

inside of rooms with individual inmates.” Ms. Keith contends that this evidence supports

an inference that conditions within the maintenance program contributed to an

environment where it was possible for abuse to occur.

According to Ms. Keith, the Audit Report’s description of three investigations of

maintenance employees in the two years prior to Mr. Gallardo’s assault of Ms. Keith,

further supports the inference that the maintenance program may be prone to misconduct.

These incidents involved “improper behavior with inmates, although that behavior wasn’t

always sexual misconduct.” That is, the incidents involved undue familiarity.

In the first case, “it was alleged that a male staff member was alone with an inmate

in a locked room.” Both the employee and inmate denied any inappropriate behavior. In

response to this incident, Warden Koerner established a policy prohibiting maintenance

13
staff from working alone with an inmate. This policy ultimately proved ineffective here

because Ms. McMillan acted as a lookout for Mr. Gallardo while he assaulted Ms. Keith.

In the second case, an employee was dismissed after five disciplinary actions, three of

which involved undue familiarity. Similarly, the third case involved an employee who

had a prior history of undue familiarity and who was dismissed when he gave an inmate

work gloves without following a formal request process.

Although these prior disciplinary actions against maintenance employees involved

undue familiarity rather than sexual misconduct, “[d]epartment and facility officials told

[the state auditors that] most instances of . . . sexual interactions . . . begin with undue

familiarity.” Thus, we view the incidents of undue familiarity as relevant to the totality of

the circumstances at TCF that may have contributed to the sexual misconduct by Mr.

Gallardo, although standing alone they do not support a finding of Warden Koerner’s

personal involvement in the sexual assault of Ms. Keith.

3) Misconduct by TCF employees generally

The impact of the evidence related to Mr. Gallardo and the maintenance program

becomes more significant when viewed together with facility-wide practices related to

undue familiarity and sexual misconduct. Ms. Keith contends that although TCF policies

expressly prohibited sexual misconduct by employees, Warden Koerner’s actual practices

undermined these formal policies and created an environment where employees engaged

in inappropriate behavior without facing meaningful investigation or discipline.

At the time of Ms. Keith’s assault in 2007, there were multiple formal policies in

place that explicitly prohibited sexual misconduct. KDOC policy IMPP 02-118 forbade

14
any sexual misconduct between employees and inmates. Indeed, the Audit Report

recognized KDOC “ha[d] established policies and procedures designed to protect staff

and inmates.” In addition, effective August 14, 2007, Warden Koerner also enacted

General Order 03-108, a policy specific to TCF, which provided “[e]mployees and

volunteers shall maintain professional bound[a]ries between themselves and inmates at

all times” and reiterated the definitions of undue familiarity and sexual misconduct. By at

least 2005, Warden Koerner also implemented use of a Staff-Offender Relationship

Checklist which “provide[d] inmates a consistent, uniform and non-threatening means to

report inappropriate staff relations involving themselves or other inmates.” And as

discussed above, in 2006, Warden Koerner instituted a policy prohibiting maintenance

staff from working alone with any inmate.

If evidence of these policies had been presented in isolation at summary judgment,

we likely would conclude that Warden Koerner is immune from liability for Mr.

Gallardo’s clear violation of these policies. See Porro v. Barnes, 624 F.3d 1322, 1329

(10th Cir. 2010) (“[T]he county actively sought to protect [the plaintiff’s] rights and it

was (only) [the prison employee’s] improper actions, taken in defiance of county policy,

that caused [the plaintiff]’s injuries.”). But Ms. Keith came forward with additional

evidence supporting a reasonable inference that, in practice, Warden Koerner did not

enforce these policies.

First, Ms. Keith presented evidence that most cases of employee misconduct at

TCF were not seriously investigated. According to the Audit Report, TCF “had far more

investigations related to allegations of sexual misconduct than the other two facilities

15
[audited by the state]. At [TCF], 43 of the 74 investigations were related to sexual

misconduct—that’s 58%. [The other audited facilities] were 9% and 16% respectively.”

In addition, TCF had far more investigations per one hundred employees than the other

two facilities. Per one hundred staff members, TCF initiated 16 investigations for sexual

misconduct and 10.1 for undue familiarity. In comparison, the other audited facilities

reported .7 and 1.6 investigations for sexual misconduct and 4.6 and 5.2 investigations

for undue familiarity, respectively. Although the sheer number of investigations does not

establish Warden Koerner’s personal involvement, Lobozzo v. Colo. Dep’t of Corr., 429

F. App’x 707, 712 (10th Cir. 2011) (unpublished) (“[T]here is no reason to assume the

mere number of incidents is sufficient evidence of an unreasonable response to a

substantial risk in an isolated case.”), Ms. Keith presented evidence that Warden Koerner

failed to reasonably respond in the cases represented by these numbers. See Lopez, 172

F.3d at 759 (“We recognize at the outset that neither prison officials nor municipalities

can absolutely guarantee the safety of their prisoners. They are, however, responsible for

taking reasonable measures to insure the safety of inmates.” (citation omitted)).

In reviewing the evidence related to Warden Koerner’s response to particular

instances of misconduct, it is important to reiterate that most of the previously described

evidence relates to undue familiarity. And there is no claim here that undue familiarity—

even if crude, boorish, inappropriate, and disgusting—violates a prisoner’s constitutional

rights. But Ms. Keith also presented evidence suggesting Warden Koerner condoned

practices that created merely an illusion of investigation into prisoner allegations of

sexual misconduct. To be sure, fact-finding in sexual assault cases is difficult in any

16
setting and more so in the circumstances here. Indeed, the Audit Report acknowledged

that

[l]ack of evidence hampers some investigations. Some situations concern
allegations of inappropriate staff actions, such as inappropriate touching,
sexual misconduct, smuggling contraband, coercion and pat searches. Often
these cases are “he said, she said” in that the only evidence is the statement
of those involved. If there were no witnesses or video, the investigator does
not have much to work with.

Notwithstanding these difficulties, Ms. Keith provided evidence that TCF’s

treatment of sexual-misconduct complaints was significantly less effective than at other

facilities. Specifically, the Audit Report indicates that the majority of investigations at

TCF—60.8%—ended with a conclusion that the claims were “unsubstantiated.” In

contrast, the comparison facilities found claims “unsubstantiated” in only 11.1% and

23.1% of their respective investigations. These numbers could be interpreted as reflecting

a mere inability to resolve complaints that are inherently difficult to prove. And, if that

were the only reasonable inference to be drawn from the evidence, we might conclude

Warden Koerner had satisfied his obligation to “tak[e] reasonable measures to insure the

safety of inmates.” Lopez, 172 F.3d at 759. But Ms. Keith provided additional evidence

that supports at least a reasonable inference that the high number of “unsubstantiated”

claims at TCF may be explained by TCF’s investigation practices.

Warden Koerner explained that an allegation would be deemed unsubstantiated if

an inmate alleged misconduct but the officer denied the allegations and passed a

polygraph test, or where there was no other evidence of the officer’s wrongdoing. In

other words, “[a]n allegation is unsubstantiated when there is no evidence of guilt but no

17
way of disproving it.” Ms. Keith, however, presented evidence that, in every he-said-she-

said situation at TCF, officials accepted the employee’s word over the inmate’s without

further question or investigation. Indeed, Lieutenant Willie Tabor confirmed that while

he worked as an investigating officer at TCF, if a female inmate made an allegation of

misconduct and an employee denied it, all such allegations were deemed

unsubstantiated.3

In describing this evidence, we recognize that prison officials cannot always

determine what has happened when an inmate alleges sexual misconduct. We are not

suggesting that a warden must act as if each prisoner complaint is true. And we are not

suggesting that when a staff member denies the accusation, the warden must take the side

of the prisoner. But serious allegations must be investigated, not rejected simply because

they are denied. Unfortunately, there may be very little to investigate; the only evidence

may be the statements of the prisoner and the staff member. A polygraph test may be a

helpful tool (if not to confirm or reject a statement, at least to encourage truthfulness); but

if polygraph-examiner opinions are not allowed in disciplinary proceedings, imposition

of sanctions may be foreclosed. That does not mean, of course, that nothing can be done.

A series of accusations against the same staff member can be sufficiently compelling to

override the most vehement denials. Or prophylactic measures may be introduced. If

3
Kansas Secretary of Corrections Roger Werholz confirmed “when you balance a
staff member’s word versus an inmate’s word, deference is often given or is expected to
be given to staff over inmates.” But this statement of general practice does not overcome
the specific evidence that TCF universally accepted the officer’s word, even where the
circumstances raised serious questions about the officer’s denial.

18
accusations are sufficiently common, they may warrant installing cameras to keep track

of behavior within the prison. And rules can prohibit conduct that provides an

opportunity for serious infractions. If, for example, a staff member admits that he was

alone with an inmate in a closed storage room but denies assaulting her, the staff member

could be disciplined for exercising bad judgment in being alone with an inmate in such a

setting and, as in this case, the warden could prohibit staff members from being alone

with an inmate.

Our task is to determine whether the warden’s response to an accusation is a

reasonable one or, instead, shows deliberate indifference to whether serious misconduct

is occurring. And even if the initial response was adequate, we must consider whether

later experience demonstrated the need for further action. In short, we must avoid

generalizing about responses to prisoner allegations. Although statistical information

provides some general insight, the reasonableness of the response can only be evaluated

in the context of the specific facts surrounding each allegation.

Here, in addition to the statistical information discussed above, the record on

summary judgment includes evidence of specific instances where TCF officials failed to

fully investigate claims of sexual misconduct.4 Specifically, we rely on testimony from

Warden Koerner, Lt. Tabor, and Chief of Security Joseph Essman, about these incidents.

4
To establish the specific details of individual cases of misconduct, Ms. Keith
relies on a Sexual Assault Information Report (SAI Report) which lists and describes the
sexual complaints made at TCF. At summary judgment, Warden Koerner argued the
report “contain[ed] multiple levels of inadmissible hearsay” because it is a “printout of an
Excel spreadsheet . . . created by Legislative Post Audit staff from information received
from ‘Bob Harrison at KDOC.’” Although the district court stated Ms. Keith “failed to
19
 For example, in July 2006, an inmate alleged she and Officer Bradley Templeton

engaged in oral sex and intercourse. She passed a polygraph and he refused to take one.

As a result, the investigation was closed as unsubstantiated. When asked why this

incident was designated unsubstantiated despite the polygraph results, Lt. Tabor testified

“[t]here was no evidence” because he did not consider the inmate’s passing of a

polygraph as evidence that would warrant further investigation. A couple of weeks later,

Officer Templeton again faced allegations that he had engaged in a sexual relationship

with a different inmate. This time a polygraph was scheduled for Officer Templeton, but

he resigned and did not take it. After the incidents with Officer Templeton, TCF ceased

administering polygraphs to inmates, allegedly based on concerns about deterring reports

of misconduct.

It is true that Officer Templeton resigned without taking a polygraph with respect

to either incident and denied the inmates’ allegations. Nevertheless, the facts raise a

reasonable inference that full investigation of the first complaint may have resulted in

meaningful discipline and prevented further incidents involving Officer Templeton. A

reasonable fact finder could also infer that sexual misconduct generally would not be

adduce any admissible evidence that any prison employee continued working at TCF
during [Warden] Koerner’s time as warden after a claim of sexual misconduct was
substantiated,” the district court did not explicitly reach a conclusion on the admissibility
of the SAI Report in particular. We need not decide the admissibility of the SAI Report
here because several witnesses testified about particular incidents reflected in the report,
and neither party has challenged the admissibility of such testimony. We therefore
discuss only those incidents supported by witness testimony in the record.

20
effectively deterred where an officer’s unsubstantiated denial is accepted without further

inquiry over a prisoner’s polygraph-supported allegations.

Ms. Keith also presented evidence of an earlier incident in March 2005, when an

inmate alleged Officer Jared Bohn touched her vagina and kissed her. Officer Bohn

denied the allegations but failed a polygraph. No further investigation followed and the

incident was listed as unsubstantiated. Nevertheless, Officer Bohn received a five-day

suspension for his involvement in the incident. He was later terminated after developing a

personal relationship with another inmate. This evidence is particularly troubling as it

shows a failure by Warden Koerner to adequately investigate the allegations or to

discipline Officer Bohn despite a failed polygraph.

This evidence presented at summary judgment supports an inference that even

when a claim of sexual misconduct was supported by corroborating evidence, Warden

Koerner failed to impose meaningful discipline. Warden Koerner testified about his

general disciplinary practices and explained that, for cases of undue familiarity,

subordinate supervisors had authority to handle discipline informally, and he generally

was not aware of such actions. In situations involving substantiated allegations of sexual

misconduct, Warden Koerner generally terminated the employee but may have

suspended, counseled, or reprimanded the employee depending on the circumstances. But

under the circumstances involving Officer Bohn—a failed polygraph—his five-day

suspension evidences Warden Koerner’s failure to implement and enforce policies that

may have prevented the sexual assault by Mr. Gallardo.

21
 Although there is no evidence that an employee continued working at TCF after a

substantiated incident of sexual misconduct, the Audit Report concluded TCF “was more

inconsistent and lenient in response to staff misconduct situations, especially in cases of

undue familiarity.” To support this statement, the Audit Report identifies the following

examples: one employee received a letter of reprimand for hugging an inmate, while

another was merely counseled when found in an office alone with an inmate with the

door closed and the lights out. In a different instance, the warden recommended dismissal

when an employee gave a former inmate a bike, but the Civil Service Board amended the

dismissal to a suspension, “citing inconsistent disciplinary measures and specifically . . .

cases where employees’ actions appeared to be much more egregious, yet those

employees received less stringent disciplinary action.”

And Warden Koerner “reduced punishment for several employees he determined

were ‘salvageable’ or who had shown sufficient remorse.” The Audit Report gives three

examples: (1) Warden Koerner reduced discipline from termination to a thirty-day

suspension for an employee who allegedly accepted responsibility and showed remorse

after distributing confidential information about male inmates to the female inmates

under that employee’s supervision; (2) Warden Koerner imposed a ten-day suspension

for an employee who in his third incident of undue familiarity caressed an inmate’s ear

and hung a sex toy from the ceiling; (3) Warden Koerner amended discipline from

termination to demotion and a thirty-day suspension where the employee showed remorse

for having an inappropriate relationship. Again, this evidence supports at least an

inference that Warden Koerner failed to punish employee misconduct consistently.

22
 Although the Constitution does not require a wooden system of punishment that

ignores an offender’s remorse, his or her track record, or the severity of the offense,

looking at the totality of the circumstances at TCF—particularly the lax response to

Officer Bohn’s failed polygraph in response to allegations of sexual assault—and

viewing the evidence in the light most favorable to Ms. Keith, a reasonable jury could

infer that Warden Koerner’s practices created an atmosphere where employees,

particularly maintenance employees, faced minimal supervision and little threat of

investigation or discipline for inappropriate sexual behavior with inmates. Although TCF

had formal policies prohibiting sexual misconduct, the evidence raises questions about

whether those policies were being followed or enforced. Despite facing a higher number

of allegations of sexual misconduct and undue familiarity than similar facilities, Warden

Koerner’s most common response was to deem the allegations unsubstantiated whenever

the employee denied them. In turn, even when breach of polices designed to protect

inmates from undue familiarity and sexual misconduct was independently corroborated,

discipline was lax.

Considering the evidence as a whole, a jury could reasonably infer that Warden

Koerner was personally involved in failing to enforce policies in a way that allowed

sexual misconduct to occur at TCF. See Tafoya v. Salazar, 516 F.3d 912, 920 (10th Cir.

2008) (recognizing several failures by the defendant sheriff but finding “perhaps most

troubling” his failure to implement an adequate grievance procedure including “serious

investigation and response”).

23
 b. Causation

The second element of the “affirmative link” between a supervisor and an alleged

constitutional deprivation requires proof of causation. “A plaintiff must establish the

‘requisite causal connection’ by showing ‘the defendant set in motion a series of events

that the defendant knew or reasonably should have known would cause others to deprive

the plaintiff of her constitutional rights.’” Schneider, 717 F.3d at 768 (quoting Dodds,

614 F.3d at 1195–96). Warden Koerner maintains Ms. Keith cannot prove causation

because she caused her own injury—specifically, “[Ms.] Keith would not have been put

in a situation to be taken advantage of by [Mr.] Gallardo if she had not agreed to remove

herself from the standard protections of the other officers, inmates, and security cameras

and seclude herself with someone she knew or should have known to be a criminal.” We

find no basis for this argument, either in the facts or the applicable law.

First, Warden Koerner provides no support for the assertion that Ms. Keith should

have known Mr. Gallardo would assault her. Even if Ms. Keith consented to the initial

sexual encounter with Mr. Gallardo, Warden Koerner does not dispute Ms. Keith’s

version of events or her allegations that she did not consent to intercourse with Mr.

Gallardo. In the summary judgment proceedings before the district court, Warden

Koerner argued he could not be liable because Ms. Keith consented to the encounter with

Mr. Gallardo, but the district court rejected this argument because it found evidence that

“present[ed] a triable issue of fact about consent.” But on appeal, Warden Koerner does

not reassert his consent argument. Accordingly, we find no basis for the implication that

24
Ms. Keith somehow caused the sexual assault by Mr. Gallardo by agreeing to some

sexual activity.

Moreover, we have held that a supervising official’s management actions may be

sufficient to establish causation. In Tafoya, the defendant-sheriff argued that, even if his

management decisions established his personal involvement in the constitutional

violation, those decisions did not proximately cause his subordinate officer to sexually

assault the plaintiff. 516 F.3d at 922. We disagreed, concluding that “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.” Id.

As explained above, a jury question exists as to whether Warden Koerner was

personally involved in the violation of Ms. Keith’s rights based on his responses to sexual

misconduct and his other management practices. With respect to causation, the Audit

Report stated, “[F]acility officials should have recognized certain red flags and acted on

them. Doing so likely would have prevented the incidents from occurring.” Under

Tafoya, the jury should be permitted to consider whether Warden Koerner’s practices

created an atmosphere that proximately caused Ms. Keith’s injury.

c. State of mind

Finally, to establish the third prong of the constitutional-violation analysis—

culpable state of mind—a § 1983 plaintiff alleging an Eighth Amendment violation must

prove that the defendant acted with deliberate indifference. Id. at 916. “The standard is

subjective, requiring that the official actually be ‘aware of facts from which the inference

25
could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To satisfy this

standard, the plaintiff must produce “evidence showing that the defendant knowingly

created a substantial risk of constitutional injury.” Schneider, 717 F.3d at 769 (internal

quotation marks omitted). Inaction, in certain instances, can be enough—“a local

government policymaker is deliberately indifferent when he deliberately or consciously

fails to act when presented with an obvious risk of constitutional harm which will almost

inevitably result in constitutional injury of the type experienced by the plaintiff.” Id. at

769 (citation omitted). But “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.” Tafoya, 516 F.3d at 916. In

identifying the relevant risk, we do not focus on the risk to a specific inmate by a specific

employee; we instead analyze whether the combined circumstances created a risk for

inmates in the plaintiff’s situation. See Farmer, 511 U.S. at 843 (“[I]t 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 attack for reasons personal to him or

because all prisoners in his situation face such a risk.”).

In Gonzales v. Martinez, where two corrections officers sexually assaulted the

plaintiff-inmates, we concluded there was sufficient evidence of deliberate indifference

by the sheriff because it could be “fairly inferred” that his “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. Specifically, the evidence showed

26
the sheriff’s investigating officer did not want to investigate claims, the sheriff

consistently ignored complaints because he discredited inmates’ allegations, and the

sheriff left the two plaintiffs under the supervision of the very men who had assaulted

them in the first place. Id. In addition, the sheriff knew of a “documented lapse of

security” and knew about complaints of sexual harassment and intimidation throughout

the jail. Id. We concluded these facts raised a reasonable inference that the sheriff

disregarded an excessive risk to the plaintiffs. Id.

The same sheriff was again sued in Tafoya, but even after facing suit in Gonzales,

the sheriff “made only minimal efforts to address the glaring safety problems at the jail.”

See Tafoya, 516 F.3d at 918. His efforts included a “no-contact” policy, installation of

new surveillance cameras, hiring additional female staff, and providing a half-day

training regarding sexual contact between staff and inmates. Id. But the evidence also

showed the sheriff made no effort to alter his “lackadaisical” managerial style; he did not

impose serious threats of discipline for policy violations; he enforced the no-contact

policy only infrequently; he continued to employ officers with known criminal records;

and he eliminated the jail’s grievance system because there were “too many complaints.”

Id. at 918–21. We explained that even with policies in place to respond to misconduct,

such policies may be “empty gesture[s] without corresponding supervision and a

legitimate threat of discipline for infractions.” Id. at 919. We therefore concluded “[t]he

knowing failure to enforce policies necessary to the safety of inmates may rise to the

level of deliberate indifference.” Id.

27
 Based on the evidence presented thus far, Warden Koerner’s failure to act is less

egregious than the sheriff’s lackadaisical behavior in Gonzales and Tafoya. Nevertheless,

Ms. Keith has presented sufficient evidence to create a jury question about whether

Warden Koerner failed to take reasonable steps to alleviate known risks within TCF. It is

undisputed that Warden Koerner implemented policies to address undue familiarity and

sexual misconduct, but as in Tafoya, there is at least a reasonable inference that there was

no corresponding supervision or meaningful threat of discipline. Although Warden

Koerner expressed concern about the ongoing problems with undue familiarity and

sexual misconduct, he did not credit inmates’ testimony when they raised allegations

against an employee. Rather, he presumptively accepted his employees’ word and

designated most claims as unsubstantiated. Indeed, Ms. Keith presented evidence that he

endorsed a policy that weighed employee testimony more favorably than an inmate’s,

even when the employee refused to take a polygraph and the inmate’s polygraph results

corroborated her allegations. And when Officer Bohn failed a polygraph administered in

the face of allegations of sexual misconduct, there was no further investigation and the

punishment imposed was a mere five-day suspension.

Viewing this evidence together with the high volume of complaints at TCF, the

multiple complaints against individual employees, and the lackluster response to such

complaints, we conclude Ms. Keith has demonstrated a genuine issue of material fact

about whether Warden Koerner acted with deliberate indifference to the risk of sexual

misconduct by his employees. Cf. Hovater, 1 F.3d at 1064, 1068 (holding sheriff was

entitled to qualified immunity where he had no knowledge that officer was a threat to

28
female inmates in part because “no female inmate had complained of sexual misconduct

by [the officer in question] or any other detention officer”). At trial, Warden Koerner may

introduce evidence to rebut any inference of knowledge or to show his actions were

reasonable under the circumstances, Farmer, 511 U.S. at 844, but the weighing of such

evidence is the jury’s role, not ours, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

In summary, Ms. Keith has presented sufficient evidence to establish Warden

Koerner’s personal involvement, causation, and state of mind, as necessary to present her

constitutional violation to a jury. Viewing the circumstances at TCF as a whole, there is

sufficient evidence from which a reasonable jury could infer that Warden Koerner was

aware of but failed to address a substantial risk that his employees would engage in

sexual misconduct and thereby harm TCF inmates, including Ms. Keith.

2. Clearly Established Law

In addition to establishing a constitutional violation by Warden Koerner, Ms.

Keith also had the burden at summary judgment to show that her constitutional right was

clearly established. Thomson, 584 F.3d at 1312. As we stated in our previous decision in

this case, “it is clearly established that a prison official’s deliberate indifference to sexual

abuse by prison employees violates the Eighth Amendment.” Keith v. Koerner (Keith I),

707 F.3d 1185, 1188 (10th Cir. 2013). We have further concluded “an inmate has a

constitutional right to be secure in her bodily integrity and free from attack by prison

guards,” and “a prison official’s failure to protect an inmate from a known harm may

constitute a constitutional violation.” Hovater, 1 F.3d at 1068. In other words, “prison

29
officials . . . must ‘take reasonable measures to guarantee the safety of inmates.’”

Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). And

we have held that such “reasonable measures” include “serious investigation and

response” when a prison official becomes aware of a risk to inmates, including sexual

misconduct by prison employees. See Tafoya, 516 F.3d at 920. Thus, at the time of the

constitutional violation in October 2007, it was clearly established that Ms. Keith not

only had a right to be free from attack by Mr. Gallardo, she also had a constitutional right

to expect reasonable protection from TCF officials such as Warden Koerner and a

reasonable response when sexual misconduct occurred.

And Ms. Keith presented sufficient evidence that these clearly established rights

were violated. She presented evidence of inappropriate behavior by Mr. Gallardo,

systemic problems within the maintenance program, and misconduct throughout the

facility. To be sure, the misconduct fell along a broad spectrum, ranging from undue

familiarity to confirmed sexual assault. But we must consider the totality of the

circumstances, including all instances of employee misconduct. Moreover, we must

consider the evidence of limited investigation and lax discipline for both undue

familiarity and sexual misconduct, evidence which supports an inference that a culture

existed where TCF employees faced no real consequences for misconduct. Importantly,

the evidence includes the inadequate investigation of the sexual misconduct allegations

against Officers Bohn and Templeton, and the slack discipline imposed on Officer Bohn.

In other words, viewing the evidence as a whole, a reasonable jury could conclude

that Warden Koerner created an atmosphere where policies were honored only in the

30
breach, and, as a result, he failed to take reasonable measures to ensure inmates were safe

from the risk of sexual misconduct by TCF employees. Because Ms. Keith possessed a

clearly established constitutional right and presented evidence of a constitutional

violation by Warden Koerner, summary judgment was inappropriate on qualified-

immunity grounds.

B. Statute of Limitations

As an alternative basis to affirm, Warden Koerner asserts that Ms. Keith filed her

claim outside the statute of limitations and failed to establish the applicability of the

statutory tolling provision. The district court denied Warden Koerner’s motion for

summary judgment on this basis. We review this order de novo. Howard v. Waide, 534

F.3d 1227, 1235 (10th Cir. 2008).

“No statute of limitations is expressly provided for civil rights claims brought

under section 1983.” Garcia v. Wilson, 731 F.2d 640, 642 (10th Cir. 1984). Accordingly,

we look to state law to determine the applicable limitations period. Id. In doing so, we

have held “that every section 1983 claim is in essence an action for injury to personal

rights” and therefore apply the statute of limitations for personal injury actions in the

state where the claim accrued. Id. at 651; see also Pfeiffer v. Hartford Fire Ins. Co., 929

F.2d 1484, 1493 (10th Cir. 1991) (“[W]e held in Garcia . . . that every claim under 42

U.S.C. § 1983 is a claim for injury to personal rights governed by the relevant statute of

limitations for the state in which the claim accrued.” (internal quotation marks omitted)).

Applying this rule here, the statute of limitations for Ms. Keith’s claim is two years. Kan.

Stat. Ann. § 60-513(a)(4); see also Cameron v. Stotts, 43 F.3d 1482, at *1 (10th Cir.

31
1994) (unpublished) (“The two-year statute of limitations for injuries to the rights of

others, Kan. Stat. Ann. 60-513(a)(4), applies to civil rights actions brought pursuant to

section 1983.”).

Ms. Keith’s cause of action arose on October 2, 2007, the date of the sexual

assault by Mr. Gallardo. But Ms. Keith did not file her complaint until May 17, 2011,

three years and seven months after the incident. Ms. Keith does not dispute this timeline.

She instead contends the statute of limitations was tolled during the time she was

incarcerated at TCF. Under Kan. Stat. Ann. § 60-515(a), a person “imprisoned for a term

less than such person’s natural life” is entitled to bring an action within one year after

being released from custody. Ms. Keith was released from TCF on May 18, 2010, and

filed her complaint within the year, on May 17, 2011. She therefore maintains she timely

filed her complaint.

But section 60-515(a) does not apply to an incarcerated person who “has access to

the court for purposes of bringing an action.” See also Parker v. Bruce, 109 F. App’x

317, 319 (10th Cir. 2004) (unpublished) (“[T]he Kansas legislature has expressly

instructed that any inmate who has access to the court is not entitled to any tolling of the

limitation period.”). Accordingly, we are left with the question of whether Ms. Keith had

access to the court such that the tolling provision did not apply to save her claim.

Warden Koerner relies on the following undisputed facts to argue that Ms. Keith

had the requisite access: (1) in January and September 2007, before her encounter with

Mr. Gallardo, Ms. Keith filed two motions in the Kansas state court criminal case that led

to her incarceration at TCF; (2) in 2008, Ms. Keith filed a motion in a case related to

32
custody of her son; (3) in 2009, Ms. Keith filed motions and was represented by a public

defender in two criminal cases filed concurrently in Kansas and Missouri; (4) Ms. Keith

attended court proceedings at least twice while incarcerated at TCF; and (5) Ms. Keith

had access to a law library at TCF.

We agree with the district court “that a reasonable jury might find these facts

persuasive” and might agree with Warden Koerner’s position. And, as a matter of law, if

this evidence were considered in isolation, it may have established sufficient access to the

courts. See, e.g., Cameron, 43 F.3d at *1 (“Mr. Cameron contends that his claim for

alleged constitutional violations . . . is not time-barred because the statute of limitations is

tolled pursuant to section 60-515(a). He argues that administrative segregation denies him

access to the courts. We are not persuaded. The very filing of this claim undermines his

argument.”); Williams v. Olathe, Kan. Police Dep’t, 945 F.2d 412, at *2 (10th Cir. 1991)

(unpublished) (holding plaintiff had access to the court as of the date he filed a complaint

in an unrelated case while incarcerated); Ventris v. Kansas, No. 11-3013-SAC, 2012 WL

4933324, at *7 (D. Kan. Oct. 16, 2012) (unpublished) (holding that tolling provision did

not apply where plaintiff had access to a law library and filed documents, thus

“illustrating his access to the courts”); Brown v. Gray, No. 06-3003-JTM, 2011 WL

1097766, at *4 (D. Kan. Mar. 22, 2011) (“Plaintiff was able to file suit to bring this

action and he has filed several other motions and documents during the course of this

litigation. His ability to file suit and to file pleadings with this court dooms his legal

disability argument.”).

33
 But Ms. Keith presented additional evidence that creates a genuine dispute of

material fact about her ability to access the courts. In particular, when TCF began its

internal investigation, the investigator had Ms. Keith sign a Confidentiality Agreement in

which she agreed “not to discuss or divulge any information” provided in the

investigation against Mr. Gallardo. The Confidentiality Agreement further provided that

“a breach of confidentiality can result in disciplinary action.” Ms. Keith “was under the

impression that [she] would be bound by this form as long as [she] was incarcerated” and

that during her incarceration she would be “in trouble for speaking about [the assault by

Mr. Gallardo].” She also described the fear she felt at TCF, related to potential

disciplinary action or other retaliation if she discussed the assault.

Warden Koerner maintains the significance of the Confidentiality Agreement is

undermined by Ms. Keith’s participation in court proceedings as outlined above, and by

her other conduct while incarcerated at TCF. Specifically, in August 2009, Ms. Keith met

with an attorney who requested a meeting and brought a reporter with him, whom the

attorney identified as a legal assistant. Ms. Keith discussed the sexual assault with these

two men. Ms. Keith also told her father about the assault when he visited her at TCF.

Then, in October 2009, Ms. Keith filed a formal grievance with KDOC related to the

assault by Mr. Gallardo. Warden Koerner maintains these facts belie Ms. Keith’s position

that the Confidentiality Agreement restricted her from disclosing the sexual assault, and

with these facts, no reasonable jury could conclude Ms. Keith lacked access to the court.

While we agree that these facts may prove problematic for Ms. Keith and may damage

her credibility, “[c]redibility determinations, the weighing of the evidence, and the

34
drawing of legitimate inferences from the facts are jury functions, not those of a judge”

when “ruling on a motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). Rather, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in [her] favor.” Id.

Applying this standard here, we find it significant that Ms. Keith signed the

Confidentiality Agreement in which she contractually agreed not to speak about the

sexual assault by Mr. Gallardo. Warden Koerner has not presented evidence that anyone

at TCF rescinded the Confidentiality Agreement in a way that allowed Ms. Keith to

freely file a § 1983 claim while incarcerated at TCF. Moreover, Ms. Keith provided

testimony explaining that she subjectively feared retaliation from inmates and TCF

administration if she were to file a claim. Viewing these facts in the light most favorable

to Ms. Keith, there is a triable issue about whether Ms. Keith lacked access to the courts

and therefore, a triable issue as to whether her claim is barred by the statute of

limitations.

III. CONCLUSION

For the above reasons, we REVERSE the grant of summary judgment in favor of

Warden Koerner on qualified immunity grounds and AFFIRM the denial of summary

judgment on the statute of limitations. We therefore REMAND for further proceedings

consistent with this decision.

35