Keith v. Koerner

• Decision Date: 09 December 2016
• Docket Number: No. 15-3219,15-3219
• Citation: 843 F.3d 833
• Parties: Tracy Keith, Plaintiff–Appellant v. Richard D. Koerner, Defendant–Appellee, and Anastacio Gallardo, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

843 F.3d 833

Tracy Keith, Plaintiff–Appellant

v. Richard D. Koerner, Defendant–Appellee,andAnastacio Gallardo, Defendant.

No. 15-3219

United States Court of Appeals, Tenth Circuit.

December 9, 2016

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 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 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 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 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 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 ...