Sexton v. Cernuto

• Decision Date: 08 November 2021
• Docket Number: No. 21-1120,21-1120
• Parties: Linda Sue SEXTON; Michael Sexton, Plaintiffs-Appellees, v. Thomas CERNUTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

18 F.4th 177

Linda Sue SEXTON; Michael Sexton, Plaintiffs-Appellees,

v.Thomas CERNUTO, Defendant-Appellant.

No. 21-1120

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 8, 2021

ON BRIEF: Thomas L. Fleury, Gouri G. Sashital, Mindy Barry, KELLER THOMA, P.C., Southfield, Michigan, for Appellant. Jonathan R. Marko, MARKO LAW, PLLC, Detroit, Michigan, Issa G. Haddad, HADDAD LAW FIRM, PLC, Bingham Farms, Michigan, for Appellees.

Before: ROGERS, STRANCH, and DONALD, Circuit Judges.

JANE B. STRANCH, Circuit Judge.

In 2017, Linda Sexton was sexually assaulted while participating in a court-ordered work program. Thomas Cernuto and Larry Dunn supervised the program, and Sexton alleges that Cernuto actively sought to isolate her from other program participants to contribute to and enable Dunn to carry out the sexual assaults. Sexton and her husband, Michael Sexton, allege 42 U.S.C. § 1983 and state-law claims against Cernuto for his actions. Cernuto brings this interlocutory appeal, arguing that the district court erred in denying his summary judgment motion for qualified immunity.

We AFFIRM the district court's denial of qualified immunity to Cernuto.

I. BACKGROUND

A. Facts

In July 2017, Linda Sexton reported to the Redford Charter Township maintenance building to begin her assigned five days with the work-release program. Probationers performed clean-up tasks throughout the Township through the program, and Thomas Cernuto and Larry Dunn were the program supervisors. After receiving yellow vests and instructions to stay within yellow painted lines in the building, Sexton and other program participants were told the rules of the program: do not bring cellphones; do not leave the premises without a supervisor's permission; wear appropriate clothing; and follow the supervisors’ instructions. Sexton was the only woman in the group of approximately five program participants that first day.

Redford Charter Township policy prohibited supervisors from driving alone with female probationers, and the supervisors told the participants to ride in a van with Cernuto to a gas station. Dunn followed in a Township pickup truck. When Sexton tried to return to the van at the gas station, Cernuto instructed Sexton to get out of the vehicle and come over to where he and Dunn were talking. Cernuto explained to her that she would ride with Dunn in the pickup truck. According to Sexton, the men were laughing and whispering when they made this decision.

During the drive to the worksite, Dunn asked Sexton personal questions, including about her marital status. Dunn also told her she was beautiful, discussed his personal life, drove down a side street to show her his previous home with an ex-wife and to point out the houses of other family members on the street, and explained that he was divorced because his ex-wife had not been sufficiently sexually active with him. Dunn then drove Sexton to the worksite.

After the work program finished picking up trash at that worksite, Sexton asked to return to the van, but Cernuto again insisted that she ride with Dunn in the pickup truck. During her second ride alone with Dunn that day, Dunn asked Sexton about her clothes and complimented her body, which made her uncomfortable. According to Sexton, this treatment continued throughout the day, with Dunn stating that he wanted to take her to his home and that he could find her anywhere. At one worksite, Dunn showed a cucumber to Sexton, making suggestive comments, and he touched her hand on their ride back to the maintenance building at the end of the day. Sexton considered telling Cernuto about her discomfort but decided against doing so because Dunn had told her that he was close with Cernuto and Cernuto had gotten him the work program job.

Dunn and Cernuto released the program participants early that day, leaving Sexton without a ride. As she began walking home, Dunn drove up to her and asked her to get in the car. Sexton declined. Before driving off, Dunn said that he knew where Sexton lived and that he could not wait to see her again.

When Sexton returned to the maintenance building the next day, Cernuto again ordered her to ride with Dunn in the pickup truck. Later in the day, Sexton heard Dunn and Cernuto talking about where the brooms, shovels, and weed whackers were. According to Sexton, the two were whispering and laughing immediately before Cernuto told Dunn to go to the maintenance building to get the equipment and to take Sexton with him.

Dunn began assaulting Sexton once they reached the equipment at the maintenance building. After handing Sexton two pieces of equipment, Dunn kissed her, put his tongue in her mouth, and touched her breasts. As Sexton let go of the equipment, Dunn put his hands in her pants and underwear. The assault culminated with Dunn touching and inserting his finger into her vagina. Sexton rode with Dunn back to the worksite and later to the maintenance building again. Before Sexton left the truck, Dunn explained to her that Cernuto had gotten him the supervisor job and that neither "told on" the other.

Later that afternoon, Cernuto again left Sexton with Dunn. Dunn took her to an old concession stand near the maintenance building to get a cooler and ice. After unlocking the door, Dunn instructed Sexton to go in first to the dark room and then began kissing and fondling her. Sexton told Dunn she was dizzy and left the concession building. When Sexton pointed out that there was no ice or water in the concession building, Dunn laughed and explained that he already had both in his truck.

At the end of the day, Sexton began walking home. Dunn drove up to her several blocks from the maintenance building and offered her a ride. She refused. Cernuto drove up while Dunn and Sexton were talking, told Dunn to "have a good time," laughed, and drove off. Sexton understood this to mean that Cernuto knew what had happened between herself and Dunn. She did not return to complete the program.

Sexton reported the incidents to the Michigan State Police within a few weeks. Dunn initially denied to police that anything inappropriate had happened, but he later told the police that he and Sexton had consensually kissed. Dunn was later charged with criminal sexual conduct and pleaded no contest. The Township fired both Cernuto and Dunn after Sexton reported the assaults.

B. Procedural History

In 2019, Sexton and her husband sued Cernuto, Dunn, and Redford Charter Township, alleging constitutional and state-law tort claims. At issue in this appeal are Sexton's claims against Cernuto for failure to protect (Count III)¹ and bystander liability/joint tortfeasor (Count IV) under 42 U.S.C. § 1983. Sexton's husband also brought a state-law loss of consortium claim (Claim X) that is not at issue here. Cernuto moved for summary judgment on all claims, arguing that he is entitled to qualified immunity on the § 1983 claims and that the loss of consortium claim must be dismissed as derivative of the constitutional claims.

The district court denied Cernuto's motion. It concluded that Cernuto could be liable for depriving Sexton of her right to personal security and bodily integrity because there were genuine disputes of material fact as to whether Cernuto took an active role in the assaults by isolating Sexton, and because a special relationship existed between Cernuto and Sexton such that he had an obligation to protect her from the assaults.² In denying Cernuto qualified immunity, the district court explained that "[i]t is a clearly established right under the substantive component of the Due Process Clause that an individual has a constitutional right to personal security and to bodily integrity," and that "no rational individual could believe that sexual abuse by a state actor is constitutionally permissible under the Due Process Clause." The court explained that "taking the facts in the light most favorable to Sexton, she has created a triable issue that Cernuto violated" that right.

Cernuto timely appealed.

II. ANALYSIS

A. Jurisdiction & Standard of Review

Subject matter jurisdiction derives from 28 U.S.C. §§ 1331 and 1343 for suits brought under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1291, a district court's denial of qualified immunity at the summary judgment stage is immediately appealable as a final decision, "but only ‘to the extent that it turns on an issue of law.’ " Austin v. Redford Twp. Police Dep't , 690 F.3d 490, 495 (6th Cir. 2012) (quoting Estate of Carter v. City of Detroit , 408 F.3d 305, 309 (6th Cir. 2005) ). A defendant may not appeal such an order "insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial." Johnson v. Jones , 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; see also Berryman v. Rieger , 150 F.3d 561, 563 (6th Cir. 1998) ("A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law."). An appellate court may overrule a district court's finding that a factual dispute exists only when the record shows that the determination is "blatantly and demonstrably false."

Bishop v. Hackel , 636 F.3d 757, 769 (6th Cir. 2011) (quoting Blaylock v. City of Philadelphia , 504 F.3d 405, 414 (3d Cir. 2007) ).

Qualified immunity "shields government officials from ‘liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Smoak v. Hall , 460 F.3d 768, 777 (6th Cir. 2006) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). The qualified immunity analysis has two parts. One prong requires the court to ask whether "[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the...