APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 4:12-CV-00068-JED-FHM).
Guy A. Fortney (Clark O. Brewster and Corbin C. Brewster, with him on the briefs), Brewster & De Angelis, Tulsa, Oklahoma, appearing for Appellants.
Daniel E. Smolen (Robert M. Blakemore and Donald E. Smolen, with him on the brief), Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, appearing Appellee.
Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
MATHESON, Circuit Judge.
On September 27, 2011, Aleshia Henderson, a jail inmate, was located in a holding cell in the medical unit of the David L. Moss Criminal Justice Center in Tulsa, Oklahoma (the " Jail" ). She had been handcuffed and placed in leg restraints. Detention Officers Dalean Johnson and Michael Thomas were on duty at the medical unit, but they left to assist with a medical emergency elsewhere. In their absence, Inmate Jessie Earl Johnson entered Ms. Henderson's unlocked holding cell and allegedly raped her.
Ms. Henderson sued the officers in their individual capacities and Tulsa County Sheriff Stanley Glanz in his individual and official capacities (collectively the " Defendants" ) under 42 U.S.C. § 1983. She alleged an Eighth Amendment violation for deliberate indifference to the risk of assault. Defendants moved for summary judgment based on qualified immunity. The district court denied the motion because Ms. Henderson raised genuine issues of material fact regarding Defendants' awareness of the risk of assault.
Defendants now seek an interlocutory appeal of the district court's decision. We dismiss the appeals of DO Johnson and Sheriff Glanz for lack of jurisdiction because they ask us to resolve issues of fact and do not turn on discrete questions of law. We have jurisdiction over DO Thomas's appeal and determine he is entitled to qualified immunity because Ms. Henderson could not show he violated a clearly established constitutional right.
A. Factual History
The district court relied upon the following facts in its summary judgment order denying qualified immunity to Defendants.
1. September 27 Incident
Ms. Henderson was booked into the Jail on June 3, 2011. Jail personnel recognized that she was a special needs inmate because she exhibited mental health issues. On September 27, 2011, she experienced chest pain and was taken to the Jail's medical unit. The medical unit contains one main hallway that houses a desk where nurses and officers sit. When Ms. Henderson entered the medical unit, DO Johnson and DO Thomas were on desk duty. Two nurses, Susan Pinson and Charity Chumley, were also in the medical unit.
Wearing handcuffs and leg restraints, Ms. Henderson was escorted to the tub room, a medical unit holding cell located near the desk. The tub room door has a single, small window that generally remains covered. Jail policy required the tub room to be locked when it was being used as a holding cell. Nurse Pinson saw Ms. Henderson placed in the tub room.
Two male inmates were located in the hallway. Inmate Williams was receiving a breathing treatment. Inmate Johnson was seated in a chair next to the shower room, which is adjacent to the tub room. Inmate Johnson was in the Jail for assault and battery on a police officer. The Tulsa County Sheriff's Office (" TCSO" ) had identified him as an " extreme escape risk" and worthy of " extreme caution" when being moved. Aplt. App. at 718. Despite these cautions, Inmate Johnson was a trustee for the prison kitchen, which permitted him greater freedom to move about the Jail without an escort officer or restraints.
At some point before 7:00 p.m., DO Johnson informed a nurse, apparently either Nurse Pinson or Nurse Chumley, that Ms. Henderson was in the tub room. The nurse responded, " Oh yeah, that's right." Aplt. Add. at 5. DO Johnson took this to mean that the nurse was ready to see Ms. Henderson, so DO Johnson unlocked the tub room door. DO Johnson was aware that Inmate Johnson was seated near the tub room and not secured or otherwise restrained. She also was aware that Inmate Johnson could see her unlock the tub room door.
Shortly before 7:00 p.m., a medical emergency was declared in a separate area of the Jail. When a gurney was requested from the medical unit, DO Thomas left to deliver it, though having an inmate deliver it would have been permissible under Jail policy. Nurse Chumley also left the medical unit to respond to the medical emergency.
When Nurse Chumley returned with the gurney holding an injured inmate, DO Johnson accompanied her and Nurse Pinson around the corner of the hallway and into an examination room to assist them. At this point, DO Thomas had not returned from delivering the gurney, so only Inmates Johnson and Williams remained in the hallway. Neither Inmate Johnson nor Inmate Williams was secured or locked down before DO Thomas and DO Johnson departed.
Inmate Johnson told Inmate Williams that he intended to make sexual contact with Ms. Henderson. Inmate Williams observed Inmate Johnson enter the unlocked tub room and exit approximately ten minutes later. DO Johnson and DO Thomas returned to the hallway of the medical unit when Inmate Johnson was exiting the tub room. Both observed the tub room door closing. DO Johnson immediately confronted Inmate Johnson about being in the tub room. He denied having been there.
According to the TCSO investigative report, DO Johnson then entered the tub room, where the following exchange took place:
[DO Johnson] asked Henderson if the male inmate had been in the room. Henderson put her head down, shook her head and didn't talk. Johnson then told Henderson she needed to talk and say what had happened. Johnson asked Henderson, " Did he touch you?" With this, Henderson shook her head yes. Johnson asked " Did he touch your breasts?" and Henderson shook her head no. Johnson asked " did he touch your crotch?" and Henderson said " Yes."
Aplt. Add. at 6.
DO Johnson exited the tub room and informed DO Thomas of this exchange. DO Johnson and DO Thomas told their supervisor, Sergeant James Pirtle, about the incident, and TCSO initiated its investigation.
Ms. Henderson was taken to a hospital for examination. She had bruising, swelling, and some mid-line tearing of her vagina that was consistent with forced intercourse. Inmate Johnson was subsequently charged with rape.
The TCSO investigation reached the following conclusions regarding the officers' adherence to Jail policies:
After conducting interviews and reviewing reports, I found policy was violated. The Medical Unit is essentially a segregation unit, requiring two officers at all times. D.O. Thomas left his post to respond to a medical emergency when the inmate worker could have accomplished the same task. Additionally, D.O. Johnson and D.O. Thomas failed to maintain the log book in the Medical Unit, as required by policy. While this is a shared responsibility, Johnson knew Henderson was on the unit at some time around 17:30 hours and the log never reflected her arrival.
Regarding the alleged sexual assault, two major causal factors were identified. First, the tub room was unsecured at the time of the incident. It appears this was due to D.O. Johnson failing to relock the door when the medical emergency was called. The second was D.O. Thomas failing to remain at his assigned post. Thomas left the unit to respond to a medical emergency, thereby diminishing the ability of officers to properly supervise the unit. When D.O. [Johnson] entered the ...