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Perry v. Durborow

United States Court of Appeals, Tenth Circuit

June 12, 2018

TAUNYA PERRY, Plaintiff-Appellee,
v.
TERRY DURBOROW, in his individual capacity, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:15-CV-00095-CVE-FHM)

          Ambre C. Gooch, Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma (Jordan L. Miller, Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma, with her on the briefs), for Defendant-Appellant.

          Robert M. Blakemore, Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma (Daniel E. Smolen, Smolen, Smolen & Roytman, PLLC, with him on the briefs), for Plaintiff-Appellee.

          Before HOLMES, MATHESON, and MORITZ, Circuit Judges.

          MORITZ, CIRCUIT JUDGE.

         Defendant Terry Durborow appeals the district court's order denying his motion for summary judgment on the basis of qualified immunity in this 42 U.S.C. § 1983 action. On appeal, Durborow doesn't challenge the district court's conclusion that he committed a constitutional violation. Instead, he argues only that-even assuming he violated the Constitution-the district court erred in finding that the contours of the constitutional right at issue were clearly established. We agree. Accordingly, we reverse the district court's order and remand with directions to enter summary judgment in Durborow's favor.

         Background

         Plaintiff Taunya Perry was arrested and booked into the Ottawa County Jail (the Jail) on December 28, 2012. According to Perry, detention officer Daniel Clements raped her approximately two months later, on February 25, 2013.

         As a result of the alleged rape, Perry brought suit against Durborow under § 1983, asserting that as the Ottawa County Sheriff, Durborow was responsible for the alleged rape under a theory of supervisory liability. In response, Durborow moved for summary judgment, arguing that he was entitled to qualified immunity.

         The district court denied Durborow's motion. In doing so, the district court relied primarily on four factual findings. For purposes of resolving this interlocutory appeal, we accept these facts as true and recite them below. See Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014).

         First, the district court noted that the Oklahoma Department of Health's "Jail Standards" prohibited male detention officers from entering the Jail's female pod unless there was "an emergency." App. 565. Yet for much of Durborow's tenure as sheriff, the Jail hired only male detention officers. Thus, in the absence of any female detention officers, it should come as no surprise that-as the district court found- male detention officers frequently entered the female pod in non-emergency situations.

         Second, citing the absence of any female detention officers, the district court inferred that Durborow was necessarily aware that the male detention officers were entering the female pod in non-emergency situations.

         Third, the district court found that Durborow was also aware of "blind spots" in the Jail's video surveillance system: the system didn't monitor certain areas of the female pod, including the pod's individual cells, its showers, and its mechanical room. Id. at 577. These "blind spots" were also "known to inmates and detention officers." Id.

         Fourth, although Perry asserted that "there was a history of female inmates being sexually assaulted at [the] Jail and that Durborow was aware of these incidents, " the district court found insufficient evidence to support this assertion and therefore declined to consider it in determining whether Durborow was entitled to qualified immunity. App. 575. Instead, the district court seemed to credit Durborow's assertion that, as of February 25, 2013, Durborow "had received only one allegation of sexual misconduct by a jail employee during his tenure as Sheriff." Id. at 568. Specifically, in 2008, "a female inmate alleged that she had been sexually assaulted" by a jail employee during her time there. Id. But the inmate later recanted, indicating that her allegation was the result of "a psychotic episode." Id. Based on the inmate's "admission" and interviews with "approximately 20 witnesses, " the Oklahoma State Bureau of Investigation ultimately concluded that "no sexual assault had occurred." Id.

         Relying on these findings, the district court ruled that a reasonable jury could conclude Durborow was "deliberately indifferent to the health and safety of [the Jail's] female inmates." Id. at 578. And based on this conclusion, the district court then determined that Durborow wasn't entitled to qualified immunity because (1) Perry established "a violation of her constitutional rights" under the Eighth and Fourteenth Amendments, and (2) "the right of a female inmate to be protected from sexual assault is a clearly ...


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