Smith v. Cochran

Decision Date12 August 2003
Docket NumberNo. 01-5085.,01-5085.
Citation339 F.3d 1205
PartiesPamela SMITH, Plaintiff-Appellee, v. Don COCHRAN, in both his individual and official capacity, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Angela K. Berglan, Assistant Attorney General (Linda Soper, Assistant Attorney General, on the briefs), Oklahoma City, OK, for Defendant-Appellant.

N. Kay Bridger-Riley (Christopher L. Camp and Charles A. McSoud, with her on the briefs) of Bridger-Riley & Associates, P.C., Tulsa, OK, for Plaintiff-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ARMIJO,* District Judge.

EBEL, Circuit Judge.

Defendant Don Cochran appeals the district court's denial of qualified immunity in this 42 U.S.C. § 1983 action. Plaintiff Pamela Smith brought this action in the United States District Court for the Northern District of Oklahoma alleging violation, inter alia, of her Eighth Amendment right to be free from the use of excessive force against her. We have jurisdiction pursuant to 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and AFFIRM.


During the period covering the incidents alleged in her complaint, November 1997 through August 1998, Pamela Smith was a prisoner of the State of Oklahoma and housed at the Tulsa Community Correction Center ("TCCC"). A condition of incarceration at the TCCC was that inmates had to participate in work programs, and the Oklahoma Department of Corrections was a party to Prisoners Public Works Project Contracts with employers that arranged jobs for TCCC inmates. Because the TCCC was a relatively low-security facility, its inmates worked at jobs in the community that were covered by work project contracts, but they returned to TCCC after work each day and remained confined there when not working.

The Oklahoma Department of Corrections had a work project contract with the Oklahoma Department of Public Safety ("DPS") under which inmates would perform janitorial services at two driver license examination centers run by the DPS in the Tulsa area, known as the Jenks and the Northside centers. Smith was assigned to the DPS project and primarily worked at the Northside center. Ed Spencer, a Senior License Examiner and the DPS supervisor for the Jenks and Northside centers, would pick up Smith at the TCCC each work day and bring her to one of the DPS centers. The defendant, Don Cochran, was a DPS employee and a License Examiner during the period covering the incidents alleged in the complaint, and from November 1997 until June 1998 he worked primarily at the Northside DPS examination center.

Under the terms of the works project contract, the Department of Corrections agreed to provide prisoners to the DPS for "clerical, maintenance, mechanical, and in general other similar work as the need arises." DPS, however, did not have complete discretion in its use of the prisoners. DPS supervisors could only assign prisoners to jobs on public property, could not permit prisoners to operate motor vehicles, had to report unsatisfactory job performance and rule infractions to the Department of Corrections, and had to cooperate with Department of Corrections policies and procedures regarding monitoring prisoners and security.

Although the Department of Corrections retained "full jurisdiction and authority over discipline and control of the prisoners," the contract required the Department of Corrections to provide DPS with copies of relevant operational polices and procedures that DPS was to enforce. Under the applicable Department of Corrections rules, the prisoners were prohibited from using alcohol or drugs, engaging in sex, receiving visitors, using the telephone, or leaving the DPS facility, except to return to TCCC. The Department retained the right to conduct unscheduled inspections of the work sites to monitor compliance with the terms of the contract.

As the supervisor for both the Jenks and Northside centers, Spencer split his time between them and frequently was not present at the Northside center. According to Cochran, he sometimes "wouldn't see [Spencer] for days" at the Northside center. When he was at the Northside center, Spencer would personally check on Smith four or five times during the day, and when Spencer was not there "[u]sually there would be someone watching [the prisoners]." According to Smith, Cochran acted as the supervisor at the Northside center when Spencer was not there. Spencer and Cochran were the only DPS personnel to attend a training session held by Department of Corrections personnel to instruct them in proper supervision of prisoners working at the Jenks and Northside DPS testing centers.

Smith alleges that Cochran repeatedly subjected her to unwanted sexual acts between November 1997 and May 1998. She alleges that in November 1997, during the first week that she worked at the Northside facility, Cochran made a comment to her about the size of her breasts. Then, while they were alone together in a store room, Cochran allegedly told Smith that she "need[ed] to do something to make him trust [her]" and asked her to expose herself to him. Smith claims that she exposed herself because Cochran threatened to report to prison officials that Smith's brother had visited her at the Northside center, which violated the rules imposed by the Department of Corrections on her custody while working at the center. Smith also claims that Cochran forced her to have sexual intercourse with him during her first two weeks on the job. Cochran denies ever having had a sexual relationship with Smith.

Smith alleges that Cochran forced her to have intercourse with and perform oral sex upon him several times between November 1997 and May 1998. She alleges that the incidents that occurred during that period included Cochran giving her a condom and suggesting that it would be for his later use, and his raping her with a salt shaker. Smith also alleges that Cochran told her that two other female prisoners from TCCC who had worked at the Northside center had exposed themselves to him. Smith says that she confirmed this with one of the women that Cochran named.

Cochran admits that during this period he took Smith off DPS grounds for trips and to visit her family, and Smith alleges that he also permitted her to leave the premises for other purposes and to receive gifts from family and friends. Smith alleges that Cochran would remind her that she was breaking the rules, and if she did not have sex with him he would report her misconduct. This would have had the likely result that she would be transferred out of the work program and transferred from the TCCC to a higher security correctional facility.

Smith claims that, while she was working at DPS, she reported to Spencer that Cochran was making inappropriate sexual comments to women at the Northside center and that he had given her a condom. Smith first informed Department of Corrections officials of Cochran's alleged misconduct in September 1998, after she had been transferred to another correctional facility and was no longer working for DPS. Department of Corrections personnel informed Spencer of the allegations, and the DPS commenced an internal affairs investigation into Cochran's conduct. Cochran resigned from DPS before the internal affairs investigation was completed for reasons he says were unrelated to the investigation.

After she was transferred from the TCCC, Smith claims she sought medical treatment for vaginal pain she says was caused by Cochran's alleged use of a salt shaker to rape her and psychological counseling to treat the emotional trauma she claims to have experienced as a result of Cochran's alleged sexual abuse.

In January 2000, Smith filed the instant lawsuit against Cochran in his individual and official capacities.1 Her complaint advances three causes of action, charging Cochran with violations of 42 U.S.C. § 1983 and with the commission of the state law torts of sexual assault and battery and intentional infliction of emotional distress. As part of her § 1983 allegation, Smith claims that while acting under color of state law, Cochran violated rights guaranteed to her under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Cochran moved for partial summary judgment on the § 1983 and the intentional infliction of emotional distress causes of action. While accepting as true for the purposes of his motion Smith's allegations of sexual abuse, Cochran argued that those allegations did not support a § 1983 cause of action and he was entitled to judgment as a matter of law. In addition, he argued that even if Smith's allegations amounted to constitutional violations on his part, he was entitled to qualified immunity because the constitutional violations he was alleged to have committed were not clearly established at the time he is supposed to have committed them.

The district court denied Cochran's motion for summary judgment. It construed Smith's § 1983 claim as being based solely on the Eighth Amendment violation because, although Smith also invoked the Fourth, Fifth, and Fourteenth Amendments in her complaint, she failed to frame arguments concerning them.2 The district court concluded first that Smith's allegation of repeated sexual assault by a state employee who acted as her supervisor in a prison work program sufficiently alleged a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Second, the district court found that Cochran's actions were done under color of state law because they allegedly occurred while he was acting as a state employee. Because the district court concluded that Smith had shown that Cochran committed a constitutional violation while acting under color of state law, the court ruled that the § 1983 allegations survived summary judgment. In addition, the court denied summary judgment on Cochran's claim...

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