Brown v. Flowers

• Decision Date: 14 September 2020
• Docket Number: No. 19-7011,19-7011
• Citation: 974 F.3d 1178
• Parties: Brittney BROWN, Plaintiff - Appellee, v. Roger FLOWERS, Defendant - Appellant, and John Christian, Pontotoc County Sheriff; Mike Sinnett, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

974 F.3d 1178

Brittney BROWN, Plaintiff - Appellee,

v. Roger FLOWERS, Defendant - Appellant,andJohn Christian, Pontotoc County Sheriff; Mike Sinnett, Defendants.

No. 19-7011

United States Court of Appeals, Tenth Circuit.

FILED September 14, 2020

Charles A. Schreck, Pierce Couch Hendrickson Baysinger & Green, LLP, Oklahoma City, Oklahoma (Robert S. Lafferrandre and Randall J. Wood with him on the brief), for Appellant.

Stephen J. Capron, Capron & Edwards, PLLC, Tulsa, Oklahoma, for Appellee.

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

Brittney Brown brought this 42 U.S.C. § 1983 case against Roger Flowers, who at the time was a jailer at the Pontotoc County Justice Center, alleging that he raped her while she was a pretrial detainee. Flowers sought summary judgment, arguing that sex between him and Brown was consensual and that, regardless, he was entitled to qualified immunity. The district court determined that a jury could find that Flowers had coercive, nonconsensual sex with Brown and that such conduct would have violated her clearly established rights. Accordingly, it denied Flowers's motion. Flowers appeals from this order. He first argues that the district court erred in finding that the question of consent and coercion was a jury question and that it therefore erred in finding a constitutional violation. But on this interlocutory appeal, we generally must accept the facts as the district court found them and therefore do not have jurisdiction to consider this argument. Flowers next argues that clearly established law did not put him on notice that the sex was coercive or nonconsensual. Because we find our existing caselaw on the sexual abuse of inmates clearly established the contours of Brown's rights, we affirm the denial of qualified immunity.

Background

In March 2016, Brown was a pretrial detainee at the Pontotoc County Justice Center, where Flowers worked as a jailer.¹ Flowers could communicate with residents of the pod where Brown was housed over an intercom and see them over video. On March 20, 2016, Flowers used the intercom system to tell Brown to come see him in the control tower, telling her "to hurry." App. vol. 5, 555. Brown felt that she had to comply with Flowers's orders because she was in jail and "ha[d] to do what [she was] told." Id. at 569. She felt that jailers "have control of your whole entire life," including "what you get, what you don't get, when you get to do anything, everything." Id. After she entered the control tower, Flowers said to Brown, "let me see your titties" and "he lifted [Brown's] shirt up." Id at 556. Flowers then began having sex with Brown. Brown began crying, which caused Flowers to turn Brown around so that he could penetrate her from behind. Brown explained that she did not physically resist because Flowers was "a guard and [she was] an inmate" and so if she used physical force to resist Flowers, that resistance could result in charges against her. Id. at 557.

After the incident, Flowers gave Brown cigarettes. Brown requested a "rape kit" from the jail nurse, and she told her sister, biological mother, and adoptive mother that she was "raped." Id. at 561, 564–65. A similar incident occurred a week later. Flowers later pleaded guilty in Oklahoma state court to two counts of second-degree rape under an Oklahoma statute that defines sex between a guard and a prisoner as rape. See Okla. Stat. Ann. tit. 21, § 1111(7).

Brown then filed this § 1983 action in federal district court. Relevant here, she alleged that Flowers raped her while in custody in violation of her constitutional rights. Flowers moved for summary judgment, arguing that he did not violate Brown's constitutional rights because Brown consented and that, regardless, he was entitled to qualified immunity. The district court first noted that Flowers's "guilty plea to two counts of second-degree rape is not dispositive," explaining that Flowers's criminal offense did not include coercion as an element. App. vol. 1, 106 (emphasis omitted). The district court next found that, here, "consent and coercion are issues for the fact[ ]finder in this case." Id. at 108. And the district court determined if there was coercion, it did "not involve any use of physical force." Id. at 111. Instead, the district court emphasized the inherently coercive nature of the prison setting. It further explained that because Flowers gave Brown cigarettes, there may have been "some quid pro quo" that affected Brown's actions. Id. at 107. The district court also credited Brown's testimony, including that "she told family members after the first incident that she was forced to have sex with [Flowers]." Id. at 104. Because the district court found that whether Brown consented is a question of fact, it determined that a jury could find that Flowers sexually abused Brown. And because "using excessive force against prisoners in the form of sexual abuse" violates the Constitution, the district court concluded that Flowers violated Brown's constitutional rights. Id. at 108 (quoting Smith v. Cochran , 339 F.3d 1205, 1215 (10th Cir. 2003) ).

Next, the district court addressed Flowers's argument that he was entitled to qualified immunity because "he believed the sexual activity was consensual." Id. at 108–09. The district court criticized this argument as "conflat[ing]" the "factual question" of consent "with a legal one." Id. at 109. And it held that, because it is clearly established that sexual abuse—including nonconsensual, coerced sex—violates the Constitution, Flowers violated a clearly established right. Thus, the district court found that Flowers was not entitled to qualified immunity and denied his motion for summary judgment.

Analysis

On appeal, Flowers argues that the district court erred in finding a constitutional violation and in finding Brown's right clearly established. Flowers also moves to seal a portion of the record.

I. Qualified Immunity

When reviewing a summary-judgment order denying qualified immunity, "[w]e review the district court's grant of summary judgment de novo, employing the same legal standard applicable in the district court."

Thomson v. Salt Lake Cnty. , 584 F.3d 1304, 1311 (10th Cir. 2009). Under that standard, we must grant Flowers qualified immunity unless "(1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of [Flowers's] conduct." Henderson v. Glanz , 813 F.3d 938, 952 (10th Cir. 2015).

Given the procedural posture of this case, we have jurisdiction to review "abstract issues of law" but not the "district court's factual conclusions." Fancher v. Barrientos , 723 F.3d 1191, 1198–99 (10th Cir. 2013) (second quoting Fogarty , 523 F.3d at 1154 ). Here, the district court determined that "consent and coercion are issues for the fact[ ]finder in this case." App. vol. 1, 108. And, even on Flowers's appeal from a denial of qualified immunity, we "view the facts in the light most favorable to [Brown] and resolve all factual disputes and reasonable inferences in [her] favor." Henderson , 813 F.3d at 952. Thus, for purposes of this appeal, we must assume that the sex was coerced and nonconsensual. Moreover, "[w]hen the factual and legal inquiries blur because the district court fails to make its factual assumptions explicit," we review the record to determine which facts "the district court ‘likely assumed.’ " Fogarty , 523 F.3d at 1154 (quoting Behrens v. Pelletier , 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) ). Therefore, "[t]hose facts explicitly found by the district court, combined with those that it likely assumed, ... form the universe of facts upon which we base our legal review of whether [Flowers is] entitled to qualified immunity." Id. ; see also Henderson , 813 F.3d at 949–50 (assuming fact that district court did not explicitly find because fact supported district court's conclusion to deny summary judgment based on qualified immunity and was construed in light most favorable to nonmoving plaintiff).

A. Constitutional Violation

On appeal, Flowers argues that the district court erred in finding a constitutional violation. As a preliminary matter, we note that because Brown was a pretrial detainee, she was protected by the Fourteenth Amendment. See Colbruno v. Kessler , 928 F.3d 1155, 1162 (10th Cir. 2019). And although the district court stated as much, it analyzed her claim as an Eighth Amendment violation. As such, it considered both prongs of the Eighth Amendment test: the objective component, or whether "the alleged wrongdoing was objectively harmful enough," and the subjective component, or whether "the officials act[ed] with a sufficiently culpable state of mind." Smith , 339 F.3d at 1212 (alteration in original) (quoting Giron v. Corr. Corp. of America , 191 F.3d 1281, 1289 (10th Cir. 1999) ). And on appeal, the parties likewise consider both prongs.

Such an analysis is in line with our previous statement that the Eighth and Fourteenth Amendment analyses are "identical." Lopez v. LeMaster , 172 F.3d 756, 759 n.2 (10th Cir. 1999). But this statement is no longer good law after the Supreme Court's decision in Kingsley v. Hendrickson , 576 U.S. 389, 135 S. Ct. 2466, 192 L.Ed.2d 416 (2015). There, the Court held that "the appropriate standard for a pretrial detainee's excessive[-]force claim is solely an objective one" and that therefore "a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose." Kingsley , 135 S. Ct. at 2473–74 ; see also Colbruno , 928 F.3d at 1163 ("[T]here is no subjective element of an excessive-force claim brought by a pretrial detainee."). And because we "treat sexual abuse of prisoners as a species of excessive-force claim," Graham v. Sheriff of Logan Cnty. , 741 F.3d 1118, 1126 (...