from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:15-CV-00095-CVE-FHM)
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
M. Blakemore, Smolen, Smolen & Roytman, PLLC, Tulsa,
Oklahoma (Daniel E. Smolen, Smolen, Smolen & Roytman,
PLLC, with him on the briefs), for Plaintiff-Appellee.
HOLMES, MATHESON, and MORITZ, Circuit Judges.
MORITZ, CIRCUIT JUDGE.
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.
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.
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.
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).
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.
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.
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.
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.
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 ...