Keith v. Koerner

• Citation: 707 F.3d 1185
• Decision Date: 12 February 2013
• Docket Number: No. 12–3101.,12–3101.
• Parties: Tracy KEITH, Plaintiff–Appellee, v. Richard D. KOERNER, Defendant–Appellant, and Ananstacio Gallardo, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

707 F.3d 1185

Tracy KEITH, Plaintiff–Appellee,

v. Richard D. KOERNER, Defendant–Appellant,andAnanstacio Gallardo, Defendant.

No. 12–3101.

United States Court of Appeals, Tenth Circuit.

Feb. 12, 2013.

John Wesley Smith, Assistant Attorney General (Michael J. Smith, Assistant AttorneyGeneral, and Jeffery A. Chanay, Deputy Attorney General, on the briefs) Office of Attorney General Derek Schmidt, Topeka, KS, for Defendant–Appellant.

Paul W. Hughes (Charles A. Rothfeld, Miriam R. Nemetz, and Michael B. Kimberly of Mayer Brown, L.L.P., Washington, D.C.; John Kurtz of Hubbard & Kurtz, L.L.P., Kansas City, MO, with him on the briefs), for Plaintiff–Appellee.

Before KELLY, MURPHY, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff–Appellee Tracy Keith, a former inmate, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of her rights under the Eighth Amendment. App. 2. She named as Defendants former warden Richard Koerner and other Kansas Department of Corrections employees. Id. Mr. Koerner appeals from the district court's denial of qualified immunity. See Keith v. Werholtz, No. 11–2281–KHV, 2012 WL 1059858 (D.Kan. Mar. 28, 2012). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

Ms. Keith was an inmate at the Topeka Correctional Facility (“TCF”), an all-female state prison, between November 2006 and May 2010. App. 5. While there, she participated in a vocational training program. Id. at 23. Her instructor, Ananstacio Gallardo, engaged in unlawful sexual acts with Ms. Keith in October of 2007, and she became pregnant as a result. Id. at 7, 23. The pregnancy was terminated. Id. at 7. The Topeka Police Department then conducted an investigation which ultimately led to Mr. Gallardo pleading guilty in June 2008 to a charge of unlawful sexual relations and two charges of trafficking contraband. Id. at 23, 126–37.

In May 2011, Ms. Keith filed a civil rights complaint alleging that prison employees violated her constitutional rights. Id. at 1–39. Specifically, she alleged that Defendants created and allowed a policy or culture of sexual misconduct at TCF which placed her at substantial risk of harm, failed to take reasonable measures to abate the culture of sexual misconduct, and were deliberately indifferent to this substantial risk of harm. Id. at 34–35. She incorporated as part of her complaint a 2010 Kansas Legislative Post Audit Report (“Audit Report”) that contained multiple findings regarding the situation at TCF during and subsequent to her incarceration. Id. at 23–31. Among other things, Ms. Keith alleged facts indicating previous incidents of both sexual misconduct and undue familiarity, inconsistent disciplinary responses to such incidents, structural policy problems at TCF, and a lack of appropriate training programs. Id. at 13–31. Defendants filed a motion to dismiss, arguing in part that they were entitled to qualified immunity. Id. at 51–59. The district court granted qualified immunity to all remaining Defendants except Mr. Koerner and Mr. Gallardo and entered a default judgment against Mr. Gallardo. Keith, 2012 WL 1059858, at *7; App. 274.

Discussion

The denial of qualified immunity is an appealable final order under 28 U.S.C. § 1291 if it turns on legal issues. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.2011). Determining whether a complaint sufficiently alleges a clearly established violation of law is an issue of law and, therefore, an appealable final decision over which we have jurisdiction. Ashcroft v. Iqbal, 556 U.S. 662, 674–75, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We review this decision de novo, applying the same standards as the district court. Brown, 662 F.3d at 1162.

“In resolving a motion to dismiss based on qualified immunity,” the court considers (1) “whether the facts that a plaintiff has alleged make out a violation of a constitutional right,” and (2) “whether the right at issue was clearly established at the time of defendant's alleged misconduct.” Id. at 1164 (quotation omitted); see also Pearson v. Callahan, 555 U.S. 223, 232, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (describing the two-part test to analyze a qualified immunity defense and holding that courts can undertake it in either order).

As an initial matter, it is clearly established that a prison official's deliberate indifference to sexual abuse by prison employees violates the Eighth Amendment. See Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.2008); see also Ortiz v. Jordan, ––– U.S. ––––, 131 S.Ct. 884, 892–93, 178 L.Ed.2d 703 (2011). Such a violation occurs where “the official knows of and disregards an excessive risk to inmate health or safety,” and there is an affirmative link between the constitutional deprivation and the supervisor's actions. Tafoya, 516 F.3d at 916 (quotation omitted); see also Dodds v. Richardson, 614 F.3d 1185, 1198 n. 6, 1204 (10th Cir.2010). This “affirmative link” has had three related, indistinct prongs in our case law: “(1) personal involvement, (2) sufficient causal connection, and (3) culpable state of mind.” Dodds, 614 F.3d at 1195, 1199. We have held that a plaintiff may establish the first prong with evidence that “the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy” that caused the constitutional harm. Id. at 1199. The question here, then, is whether Ms. Keith has alleged facts sufficient to support such a deliberate indifference violation by Mr. Koerner.

To state a claim, a plaintiff must only allege enough factual matter in her complaint to make her “claim to relief ... plausible on its face” and provide fair notice to a defendant. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The district court found that Ms. Keith did so. Keith, 2012 WL 1059858, at *7. In particular, it noted that she alleged facts that could tend to establish that Mr. Koerner “was responsible for managing TCF and knew about multiple instances of sexual misconduct at TCF over a period of years, inconsistently disciplined corrections officers who engaged in prohibited sexual conduct with inmates and thus purportedly tolerated at least an informal policy which permitted sexual contact between prison staff and inmates.” Id.

On appeal, Mr. Koerner argues that Ms. Keith relies heavily on the Audit Report, created years after the events of which she complains and including events and statistics that post-date those events. Aplt. Br. 15. He suggests that applying a standard of objective reasonableness, the mere number of incidents is insufficient to demonstrate an unreasonable response to a substantial risk, id. at 16, a point with which we agree. He further argues that the complaint omits the response of the Secretary of Corrections, the inconsistent discipline in the report deals with claims of undue familiarity, not sexual misconduct, and is not specific as to the time period. Id. at 17–18. Moreover, the incidents relied upon were reported, investigated, and acted upon, demonstrating a reasonable response, and certainly not one that suggests deliberate indifference. Id. at 18–19.

Mr. Koerner characterizes Ms. Keith's argument as: because Mr. Koerner had the responsibility for managing the facility and imposing discipline, and did in fact discipline employees for undue familiarity and sexual misconduct, he must have been aware of Mr. Gallardo's criminal intent and did nothing to prevent it. Aplt. Reply Br. 4–5. Of course, that alone would be insufficient to withstand a motion to dismiss. But there is more.

We have reviewed the complaint and conclude that on a motion to dismiss, Ms. Keith has provided notice and nudged her claims beyond the conceivable to the plausible given that we must accept well-pleaded allegations as true. First, Ms. Keith's complaint refers to facts, primarily from the Audit Report, that could support a conclusion that Mr. Koerner was aware of multiple incidents of unlawful sexual conduct at TCF. Aplee. Br. 8–9. For example, Ms. Keith points to reports of at least 54 incidents of sexual misconduct and 33 incidents of undue familiarity between 2005 and 2009 and to a 2005 lawsuit over strip searches at TCF, suggesting that Mr. Koerner may have had knowledge of these accounts. App. 87, 14.¹ Second, Ms. Keith alleges facts indicating that discipline in response to complaints of sexual misconduct and undue familiarity at TCF was inconsistent. Aplee. Br. 9–11. In particular, she points to the Audit Report which describes multiple failures to properly investigate allegations and to terminate employees when allegations were substantiated. App. 13–17, 26–28. Third, Ms. Keith alleges facts that tend to show the existence of structural policy problems that contributed to the unlawful sexual conduct here. Aplee. Br. 11–12. Specifically, she again cites to the Audit Report which determined that policy decisions—particularly decisions not to address known problems with the vocational training program and the insufficient use of cameras to monitor inmates and staff—made TCF “ripe for staff misconduct.” App. 19, 23–24. Fourth, Ms. Keith alleges that the lack of training programs tailored to the all-female population of TCF contributed to the misconduct here. Aplee. Br. 13–14; App. 29. These allegations go beyond formulaic labels and conclusions and meet our intermediate pleading standard. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955;Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012).

Mr. Koerner's arguments to the contrary do not carry the day. He argues that although he may have had knowledge of other incidents of sexual misconduct, he had no indication of potential harm to Ms. Keith specifically. Aplt. Br. 18. But an “official's knowledge of the risk need not be knowledge of a substantial risk to a particular inmate, or knowledge of the particular manner in which injury might occur.” Tafoya, 516 F.3d at...