Barney v. Pulsipher

Citation143 F.3d 1299
Decision Date01 May 1998
Docket NumberNo. 96-4192,96-4192
Parties98 CJ C.A.R. 2165 Susan BARNEY, Kathy Christensen, Plaintiffs-Appellants, v. Gerald R. PULSIPHER, individually and in his Official Capacity, Defendant, Box Elder County, Utah, a political subdivision of the State of Utah; Robert E. Limb; Lee Allen, Commissioner, in his official capacity; James White, Commissioner, in his official capacity; Allen Jensen, Commissioner, in his official capacity, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Kathryn Collard, of The Law Firm of Kathryn Collard, L.C., Salt Lake City, UT (David Bert Havas and Sharon S. Sipes, of Gridley, Ward, Havas, Hamilton & Shaw, Ogden, UT, with her on the brief), for Plaintiffs-Appellants.

Karra J. Porter, of Christensen & Jensen, P.C. (Dale J. Lambert, of Christensen & Jensen, with her on the brief, Salt Lake City, UT), for Defendants-Appellees.

Before SEYMOUR, Chief Judge, ANDERSON, and HENRY, Circuit Judges.

SEYMOUR, Chief Judge.

While serving 48-hour sentences for minor offenses at Box Elder County Jail in Utah, Kathy Christensen and Susan Barney were on separate occasions sexually assaulted by jailer Gerald Pulsipher. Ms. Christensen and Ms. Barney each brought suit against Gerald Pulsipher, Box Elder County, Sheriff Robert Limb, and County Commissioners Lee Allen, James White, and Allen Jensen under 42 U.S.C. § 1983 alleging violations under the First, Eighth, Ninth, and Fourteenth Amendments based on Mr. Pulsipher's sexual assault and other conditions of confinement arising out of their two-day incarcerations. The two actions were consolidated, and all defendants except Mr. Pulsipher moved for summary judgment. The district court granted the motion. Ms. Christensen and Ms. Barney appeal, 1 and we affirm.

I

In accordance with state law requiring "the separation of prisoners by sex," Utah Stat. Ann. § 17-22-5 (1995 repl.), women inmates at Box Elder County Jail are placed in solitary confinement in a cell specifically designated for females. The female cell is eight-by-eight feet in dimension, and the door to the cell contains a small window which is covered by a manilla envelope taped to the outside of the door. Below the covered window is a small opening with a trap door which is used to provide inmates a food tray. The cell is located on the first floor of the jail adjacent to the jail officer's desk. On the separate occasions Ms. Barney and Ms. Christensen were confined at Box Elder County Jail, they each allege the following inadequate conditions:

The mattress was soiled and torn; the pillow filthy and uncovered by a pillow case; there was no clean place for plaintiffs to place their clothing when they went to bed; the sink, toilet, shower fixtures and soap were dirty; there was profanity scribbled on the walls of the cell; the lighting was inadequate and the air in the cell during the summer months when the plaintiffs were confined there, was stifling due to the lack of any adequate circulation, ventilation, or air conditioning in the cell, and the food was cold and unappetizing.

Aplt. Br. at 14.

Several closed circuit television cameras are in the jail and linked to monitors in the dispatch area to aid jail officials in maintaining the security of the facility. No cameras monitor the outside exercise area commonly known as the "bullpen." Aplt.App. at 216-17, 499. Although dispatchers generally watch the monitors in concert with their dispatch duties, they are under no obligation to view them continuously.

The Jail Policies and Procedures Manual specifically instructs jailers to "give notification prior to entering the cell blocks of the opposite sex" to the dispatcher who "will monitor the cell block." Id. at 230-31. Moreover, male jailers are prohibited from "remov[ing] female inmates from their cells without another officer being physically present." Id. at 229. Ordinarily two jailers are required to be on duty per shift, but when one jailer is sick or on vacation a second jailer is usually not called in due to understaffing and budgetary constraints. The manual further prohibits jailers from accepting sex or other favors from prisoners, forbids staff members from taking any prisoners out of the jail for any reason except to perform authorized jail work assignments, and prohibits discrimination against any prisoner on the basis of sex.

As a result of overcrowding in the jail, the indoor exercise area and library are used to house overflow male prisoners, and women are therefore excluded from using these spaces. Because of the lack of monitoring and services available to women inmates, a report evaluating the jail concluded "[t]he present configuration of space dictates that the facility not house women inmates for periods of time longer than several hours." Aplt.App. at 501. Recognizing that the facilities at Box Elder County Jail are inadequate for holding women prisoners for any considerable length of time, Sheriff Limb ordinarily follows a "verbal policy" of confining only women who need to be detained for 24-36 hours at the jail. Id. at 212-13. The County usually contracts out to jails in neighboring counties to house women prisoners sentenced for longer periods of time unless these jails are full, in which case female inmates are kept at Box Elder County Jail.

Early in the morning of May 15, 1993, Kathy Christensen arrived at Box Elder County Jail to serve a 48-hour sentence for a DUI conviction and was placed in the female cell. Later that day, Gerald Pulsipher, the only jailer on duty at the time, removed Ms. Christensen from her cell without informing the dispatcher as required by jail policy and led her outside to the unmonitored "bullpen" area where he sexually assaulted her. Mr. Pulsipher threatened to keep Ms. Christensen in jail longer than 48 hours if she did not perform oral sex as he demanded. After completing her sentence, Ms. Christensen did not report the incident of assault to the County.

On July 10, 1993, Susan Barney was placed in the female cell at Box Elder County Jail to serve a 48-hour sentence for shoplifting. Mr. Pulsipher, who once again was the only jailer on duty, took Ms. Barney to the same unmonitored area without informing the dispatcher and sexually assaulted her. Ms. Barney also did not report the incident to the County upon her release. However, Ms. Barney showed her drug counselor a sexually explicit note Mr. Pulsipher had written her while in jail and told her counselor about the assault. The counselor reported Mr. Pulsipher's conduct to Ms. Barney's probation officer, who in turn reported the incident to Sheriff Limb. The County subsequently learned that Ms. Christensen had also been previously assaulted by Mr. Pulsipher.

On August 24, 1993, Sheriff Limb terminated Mr. Pulsipher's employment. Criminal charges were filed against Mr. Pulsipher, who pled guilty to forcible sexual abuse of Ms. Christensen. As part of the plea agreement, the criminal charges relating to the sexual assault of Ms. Barney were dismissed.

During the time Mr. Pulsipher was employed by the Box Elder County Sheriff's Department, Utah law required all peace officers to be certified and successfully complete a basic training course at a certified academy. See Utah Code Ann. § 67-15-7 (1991) (subsequently amended and renumbered as Utah Code Ann. § 53-6-205 (1994)). Before being accepted for admission to a state certified training program, the applicant must undergo a background investigation, which includes a criminal history check, to determine the applicant's "good moral character." Id. § 67-15-6. If the criminal history check reveals convictions for crimes punishable by imprisonment at a state or federal penitentiary or an offense involving dishonesty, unlawful sexual conduct, physical violence, or drugs, the applicant is denied admission. Id.

Mr. Pulsipher was accepted for admission at the Utah Law Enforcement Academy of Weber State University, a state certified basic training program. The background investigation on Mr. Pulsipher turned up one arrest for possession of alcohol at age seventeen and several speeding tickets, but nothing serious enough to deny him admission to the academy. Upon successfully graduating from the academy, Mr. Pulsipher was certified as a peace officer.

Mr. Pulsipher was hired as a Deputy Sheriff by the Box Elder County Sheriff's Department in 1991. The department followed its standard procedure in hiring Mr. Pulsipher. After he submitted an application, Sergeant Yeates interviewed him, checked his application, and contacted his references who all provided positive statements about him. There was no policy in effect requiring written letters of recommendations or written reports of the Sergeant's conversations with these references. Mr. Pulsipher's application was then sent to Sheriff Limb for final approval.

Mr. Pulsipher satisfactorily completed the basic correctional officer course offered by the Department of Corrections, fulfilling the minimum requirements to exercise peace officer authority as a correctional officer in the state of Utah. During the course, Mr. Pulsipher received instruction on offenders' rights, staff/inmate relations, sexual harassment, and cross-gender search and supervision. He also took continuing education courses throughout his employment at Box Elder County Jail to maintain his state certification as a peace officer.

Mr. Pulsipher received a copy of the Jail Policy and Procedures Manual in November 1992, and he was required to read it in its entirety and "be familiar with its contents and comply with its directives." Aplt.App. at 226. In an employee performance appraisal dated February 2, 1993, Mr. Pulsipher received satisfactory to above satisfactory grades in all categories. Before the incidents involving Ms. Christensen and Ms. Barney, Mr. Pulsipher had not been the subject of any disciplinary action and Sheriff Limb considered him one of his better officers.

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