Hovater v. Robinson

• Decision Date: 27 July 1993
• Docket Number: No. 92-3230,92-3230
• Citation: 1 F.3d 1063
• Parties: Jerrie HOVATER, Plaintiff-Appellee, v. Tommie ROBINSON; Sedgwick County Board of County Commissioners, Defendants, and Mike Hill, individually and in his official capacity as Sheriff of Sedgwick County, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1063

1 F.3d 1063

Jerrie HOVATER, Plaintiff-Appellee, v. Tommie ROBINSON; Sedgwick County Board of County

Commissioners, Defendants,

and

Mike Hill, individually and in his official capacity as

Sheriff of Sedgwick County, Defendant-Appellant.

No. 92-3230.

United States Court of Appeals, Tenth Circuit.

July 27, 1993.

Edward L. Keeley (Alan L. Rupe with him on the briefs) of Alan L. Rupe Law Offices, P.A., Wichita, KS, for defendant-appellant Hill.

Thomas M. Warner, Jr., of Pullman & Warner, Chartered, Wichita, KS, for plaintiff-appellee Hovater.

Before SEYMOUR, RONEY, ^* and MOORE, Circuit Judges.

SEYMOUR, Circuit Judge.

Jerrie Hovater brought this suit against officials of Sedgwick County under 42 U.S.C. Sec. 1983 (1988) alleging a violation of her constitutional rights under the Eighth and Fourteenth Amendments. Ms. Hovater alleges that while an inmate at the Sedgwick County Jail, she was sexually assaulted by defendant Tommie Robinson, a detention officer at the jail. She asserts that defendant Mike Hill, Sheriff of Sedgwick County, and defendant Board of Sedgwick County Commissioners are responsible for the constitutional violations due to their failure to properly protect her and their failure to supervise and train jail employees. Defendant Hill moved for summary judgment based on qualified immunity. The district court denied the motion. Mr. Hill appeals, and we reverse.

I.

The sexual assault allegedly occurred on the third floor of the Sedgwick County Jail ("the jail"). ¹ A brief description of the layout and policies of the jail is helpful to determine the liability of those involved. The jail houses both male and female inmates. The female inmates are housed on the fourth floor. Within the secure portion of the third floor, there is a medical clinic, five attorney-inmate visitation rooms, and a combination chapel/library. Sheriff Hill was, at all relevant times, in charge of the jail. He supervised over two hundred employees, of whom approximately eighty worked in the jail.

Tommie Robinson was hired by Sheriff Hill's predecessor and began employment in January 1985. Mr. Robinson was certified as eligible by the Sedgwick County Civil Service Board. He completed sixty-seven hours of training and was given high evaluations by his supervisors during his employment. Prior to the alleged sexual assault of Ms. Hovater, no female inmate had complained of sexual misconduct by Mr. Robinson or any other detention officer. Mr. Robinson was assigned to the third floor area. His primary duty was to escort inmates between the elevator and the appropriate rooms.

Ms. Hovater was arrested on April 7, 1988 and charged with driving under the influence of alcohol and other related traffic offenses. She pled guilty as charged and was incarcerated at the Sedgwick County Jail to serve a sentence of one year and thirty days. On June 7, 1988, Mr. Robinson called Ms. Hovater to the third floor to straighten the books in the library. While in the library, Ms. Hovater alleges that Mr. Robinson made a sexual advance, sexually propositioned her, and told her he would call her down the next day. She did not inform anyone within the Sheriff's Department of this incident but did tell her boyfriend during a phone call that night. Early the next day, Mr. Robinson called Ms. Hovater to the third floor. She alleges that Mr. Robinson forcibly sodomized her in the chapel/library. She returned to the fourth floor and did not mention the incident to anyone. After lunch on the same day, Mr. Robinson called Ms. Hovater to the third floor again. She told the fourth floor officer that she did not want to go but gave no reason. On the elevator, Ms. Hovater told the elevator operator that Mr. Robinson had made sexual advances toward her. After delivering Ms. Hovater to the third floor, the elevator officer contacted a supervisor immediately. Due to a class in the chapel/library, Mr. Robinson sent Ms. Hovater back to the fourth floor but said he would call her down later. Ms. Hovater again told the elevator operator that Mr. Robinson had made advances toward her. By this time, an investigation had begun. On June 9, Sheriff Hill placed Mr. Robinson on probation. Mr. Robinson later resigned.

Ms. Hovater filed this suit against Sedgwick County, Mr. Robinson, and Sheriff Hill in his individual and official capacities, alleging violations of her constitutional rights under the Eighth and Fourteenth Amendments to be protected from harm perpetrated by jail guards and to be secure in her bodily integrity. Specifically, she alleges that defendants are responsible

for implementing a de facto policy and custom of allowing defendant Robinson to have unsupervised access and custody of female inmates over an extended period of time with deliberate indifference to the consequences, for failure to train the detention officers to prevent the policy and custom from occurring in the first place, for failure to supervise and protect.

Aplee. Br. at 9. ²

The policies and procedures which govern operation of the jail were revised in 1986 and set forth in a new Policy and Procedure Manual (the manual). Captain Ed Pavey was responsible for drafting the manual. He gathered information from several sources, including manuals from various jails throughout the country, the Kansas Jail Advisory Standards, and previous unwritten policies. Aplt. App., vol. II, at 353-55. This information formed the basis of the manual. One policy relevant here provides that a female detention officer, if available, would escort a female inmate moved within the jail. Id., vol. III, at 646. If a female officer was not available, two male detention officers were to escort a female inmate. Id. Ms. Hovater alleges that this procedure was not followed. She also asserts that Mr. Robinson "developed a practice of ... call[ing] the fourth floor detention officer and request[ing] that certain female inmates be delivered to his care and custody on the third floor." Aplee. Br. at 5. Ms. Hovater contends this practice violated jail policy in a number of ways. First, Mr. Robinson violated jail policy by calling Ms. Hovater to the third floor. The professional visitation clerk was the jail employee responsible for the movement of inmates to and from the third floor. Second, straightening the library was a task assigned only to male inmates who were trustees. Third, in contradiction to the manual, once on the third floor, the female inmate was left in the supervision of Mr. Robinson. Ms. Hovater contends these violations were carried out with the "knowledge and acquiescence" of the three female staff members on the third floor. Id. at 5-6. In fact, defendants admit that the normal "procedure was not followed in the small third floor area of the Jail because video cameras monitored the hallways and three female staff members worked in that area." Aplt. Br. at 9-10. ³ Although the manual required only one detention officer on the third floor, the Sheriff's department did not employ a sufficient number of female officers to permanently assign a female officer on the third floor. Id.

Defendants Hill and Sedgwick County moved for summary judgment. Sheriff Hill asserted the defense of qualified immunity. The district court denied the motion. The court found no evidence that Sheriff Hill had actual knowledge of Mr. Robinson's violations of the policies. However, the court held Sheriff Hill had "constructive notice that Robinson, a single male officer, had unsupervised care and custody of female inmates.... It is apparent to this court that Sheriff Hill and Sedgwick County were aware that the very injury which Hovater allegedly suffered was likely to result when a single male officer had unsupervised care and custody of a single female inmate." Aplt. App. at 150. Sheriff Hill appeals the denial of qualified immunity, arguing that the district court did not apply the correct legal principles.

II.

"We review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.1990). Once a defendant raises the defense of qualified immunity, the plaintiff bears the burden of establishing that the defendant has violated clearly established law. Id. at 131. Courts have placed this burden on the plaintiff because qualified immunity is "intended to protect the defendant from the burdens associated with trial." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). To meet her burden, a plaintiff must demonstrate a "substantial correspondence between the conduct in question and prior law ... establishing that the defendant's actions were clearly prohibited." Hannula, 907 F.2d at 131. If the plaintiff meets this burden, then the defendant "as the movant in a motion for summary judgment bears the normal burden of showing that no material issues of fact remain that would defeat his or her claim of qualified immunity." Pueblo Neighborhood Health Centers, 847 F.2d at 646. See also Hannula, 907 F.2d at 131.

Sheriff Hill contends that his conduct must be reviewed under the "malicious and sadistic" standard set forth in Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986). We disagree. The proper standard for an Eighth Amendment claim based on conditions of confinement, such as the present claim, is "deliberate indifference." Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir.1990). Under this standard, "an official or municipality acts with deliberate indifference if its conduct (or adopted policy) disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Id. at 1496. See also Helling v. McKinney, --- U.S. ----, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (applying deliberate indifference standard to inmate's Eighth Amendment claim based on conditions of confinement)....