Contreras v. Dona Ana County Board ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH July 20, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
KATHY CONTRERAS, on behalf of
her minor child A.L.,
Plaintiff - Appellant,
v. No. 18-2176
DOÑA ANA COUNTY BOARD OF
COUNTY COMMISSIONERS, doing
business as DOÑA ANA COUNTY
DETENTION CENTER; PACO
LUNA; JAIME CASADO; and
SHAYLENE PLATERO,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:18-CV-00156-GBW-GJF)
Katherine Wray (Margaret Strickland, McGraw & Strickland, Las Cruces, New
Mexico, with her on the briefs) Wray & Girard, PC, Albuquerque, New Mexico,
for Appellant.
Damian L. Martinez (Haley R. Grant with him on the brief), Holt Mynatt Martinez
P.C., Las Cruces, New Mexico, for Appellees.
Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
PER CURIAM
This appeal arises from allegations of deliberate indifference to violence
among pretrial detainees at a juvenile detention facility in Doña Ana County, New
Mexico. After A.L. was booked into the Doña Ana County Detention Center,
three other detainees threatened him with physical harm. Corrections officers
responded by imposing a highly-restrictive lockdown regime on all three
aggressors. Despite these countermeasures, one of the aggressors—while
temporarily permitted outside of his cell—accessed the touchscreen control panel
that regulated access to cells within the juvenile pod. While corrections officers
were distracted, he opened several cells simultaneously. The other two aggressors
took this opportunity to physically assault A.L.
Kathy Contreras, A.L.’s mother, subsequently brought this lawsuit against
the three corrections officers present during the attack, as well as the Doña Ana
County Detention Center. She alleges the defendants violated A.L.’s Fourteenth
Amendment right to substantive due process through deliberate indifference to the
violence threatened by other detainees. The district court granted the defendants’
motion for summary judgment on the basis of qualified immunity. On appeal, a
majority of the court concludes the district court did not err. No legal authorities
clearly establish a constitutional violation under these circumstances.
-2-
We accordingly affirm the judgment of the district court. 1 Chief Judge
Tymkovich concurs, concluding that no constitutional violation occurred. Judge
Carson concurs, concluding that he would dispose of this case without
determining whether a constitutional violation occurred. Judge Baldock concurs
in part and dissents in part. He concurs in the affirmance of summary judgment
in favor of Defendants Jaime Casado and Shaylene Platero, but he dissents as to
Defendants Paco Luna and Doña Ana County, concluding (1) Sergeant Luna
violated A.L.’s clearly established constitutional right to protection from
violence, and (2) Doña Ana County should also be liable for that violation.
1
A majority of this court likewise affirms the district court’s decision to
grant summary judgment to the municipality. Chief Judge Tymkovich concurs on
the basis that no constitutional violation occurred, which forecloses municipal
liability entirely. Judge Carson concurs on the basis that—although qualified
immunity only shields individuals—municipal liability for claims of deliberate
indifference must follow only from clearly established constitutional violations.
-3-
18-2176, Contreras v. Doña Ana Board of County Commissioners
TYMKOVICH, Chief Judge, concurring.
In my view, Ms. Contreras has failed not only to demonstrate the violation
of a clearly established constitutional right, but also the violation of a
constitutional right at all.
I. Background
On the evening of May 3, 2016, A.L. was booked into the Doña Ana
County Detention Center (DACDC) for violating terms associated with his
probation. As A.L. was led to his cell, three other detainees—A.H., J.S., and
J.V.—spontaneously began banging on their cell doors and yelling to A.L. that
they “were gonna f**k him up.”
In response, corrections officers placed all three aggressors on pre-
disciplinary lockdown (“pre-disc”), which imposed a number of restrictions.
While subject to pre-disc, A.H., J.S., and J.V. could only leave their cells for one
of several enumerated purposes, and never at the same time. This regime also
proscribed any contact with A.L. And it likewise sought to restrict
communication among the three aggressors.
The next morning, Officer Casado, Cadet Platero, and Sergeant Luna were
in the common area on the first floor of the juvenile pod. While A.L., J.S., and
J.V. remained locked in separate cells on the second floor, A.H. obtained
permission to leave his cell for the permissible purpose of a shower. The shower
room sat on the first floor, just adjacent to the common area.
Video indicates all three corrections officers watched television in the
common area as A.H. finished his shower. Consistent with the restrictions
imposed by A.H.’s pre-disc, no other detainee appeared outside of the locked
cells. Upon exiting the shower room, A.H. entered the common area, which
houses both the commissary kiosk and the touchscreen control panel. The record
discloses that Officer Casado had left the control panel unlocked.
A.H. obtained permission from Sergeant Luna to use the commissary kiosk.
But as he stands at the kiosk, the video suggests A.H. glances over his shoulder to
check whether the corrections officers were paying attention. He then walks off-
screen. Moments later, one of the corrections officers—evidently recognizing
something amiss—stands suddenly as A.H. reappears onscreen. Around this same
time, J.S. and J.V. flee their newly-unlocked cells.
They enter A.L.’s cell, closing the door behind them. J.S. and J.V. then
begin assaulting A.L. As they do so, A.H. runs upstairs and locks himself inside
his own cell, before Officer Casado can catch him. From downstairs, Cadet
Platero re-opens A.L.’s cell. Sergeant Luna eventually subdues A.L.’s attackers
with pepper spray. All of this transpires within twenty seconds.
-2-
II. Analysis
Ms. Contreras contends the district court erred in concluding the
corrections officers’ behavior did not violate a clearly-established constitutional
right to protection from violence. 1
We review de novo the district court’s decision to grant summary judgment.
E.g., Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (citing Trask v.
Franco, 446 F.3d 1036, 1043 (10th Cir. 2006) (“On appeal, we review the award
of summary judgment based on qualified immunity de novo.”)). Summary
judgment becomes appropriate when there exists no genuine dispute of material
fact, such that the moving party is entitled to judgment as a matter of law. Id.(citing Fed. R. Civ. P. 56(a)).
In conducting this exercise, we consider evidence and draw inferences in
the manner most favorable to the non-moving party. Id. (citing Schutz v. Thorne,
415 F.3d 1128, 1132 (10th Cir. 2005)). But where, as here, a defendant asserts
qualified immunity, the plaintiff must also demonstrate that (1) the defendant
violated a constitutional right, and (2) the constitutional right was “clearly
established” at the time the violation transpired. Id. (citing Medina v. Cram, 252
1
I do not dispute that the officers acted negligently, but our precedent
mandates that negligent conduct cannot form the basis for relief under § 1983.
See, e.g., Davidson v. Cannon, 474 U.S. 344, 347 (1986) (citing Daniels v.
Williams, 474 U.S. 327 (1986)).
-3-
F.3d 1124, 1128 (10th Cir. 2001)). Unless the plaintiff can satisfy both
requirements, the defendant will prevail.
We examine each requirement in turn.
A. Constitutional Violation
The Supreme Court has explained that “the treatment a prisoner receives
. . . and the conditions under which he is confined are subject to scrutiny under
the Eighth Amendment.” 2 Helling v. McKinney, 509 U.S. 25, 31 (1993). The
Court has accordingly construed the Eighth Amendment’s prohibition against
“cruel and unusual punishments” to encompass certain “restraints on prison
officials.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). For example, officials
may not apply “excessive” physical force against inmates. Id. (citing Hudson v.
McMillian, 503 U.S. 1 (1992)).
The Supreme Court has likewise held that the Eighth Amendment imposes
certain affirmative obligations upon prison officials. Among these obligations are
provisions for “adequate food, clothing, shelter, and medical care.” Id. (citing
2
At the time of the assault, A.L. was a pretrial detainee, rather than a
convicted prisoner. We accordingly consider this lawsuit under the Fourteenth
Amendment’s provision for due process, although the Eighth Amendment’s
prohibition against “cruel and unusual punishments” guides our analysis. E.g.,
Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018) (citing Lopez v.
LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999) (“Pretrial detainees are
protected under the Due Process Clause rather than the Eighth Amendment. In
determining whether [pretrial detainee’s] rights were violated, however, we apply
an analysis identical to that applied in Eighth Amendment cases . . .”)).
-4-
Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). Most importantly for present
purposes, the Court has held that prison officials “must take reasonable measures
to guarantee the safety of [] inmates [].” Id. (citing same).
To the extent prison officials manifest deliberate indifference to any of
these affirmative obligations, injured parties may seek redress under § 1983. E.g.,
Estelle v. Gamble, 429 U.S. 97, 104–06 (1976). But this cause of action does not
imply that “every injury suffered by one prisoner at the hands of another will
translate into constitutional liability for prison officials responsible for the
victim’s safety.” Farmer, 511 U.S. at 834 (cleaned up).
To prevail on a constitutional claim for “deliberate indifference,” a plaintiff
must demonstrate both an objective and a subjective failure on the part of prison
officials. Id; see also Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006)
(“[T]he plaintiff must show that he is incarcerated under conditions posing a
substantial risk of serious harm, the objective component, and that the prison
official was deliberately indifferent to his safety, the subjective component.”).
1. Objective Inquiry
Where a § 1983 action is premised “on a failure to prevent harm, the inmate
must show that he is incarcerated under conditions posing a substantial risk of
serious harm.” See id. (citations and internal quotation marks omitted); see also
Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (“First, the alleged
-5-
deprivation must be sufficiently serious under an objective standard. In cases
involving a failure to prevent harm, this means that the prisoner must show that
the conditions of his incarceration present an objective substantial risk of serious
harm.” (emphasis added) (citing Smith, 445 F.3d at 1258)).
And where the plaintiff alleges deliberate indifference to the threats
inmates may pose to one another, he must demonstrate a connection between the
conditions of incarceration and the substantial (and particularized) risk of serious
harm. See, e.g., Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (“To
establish a cognizable Eighth Amendment claim for failure to protect [an inmate
from harm by other inmates], the plaintiff must show that he [was] incarcerated
under conditions posing a substantial risk of serious harm[,] the objective
component . . .”) (emphasis added) (citations and quotation marks omitted)). 3
To the extent any cognizable risk arose from the circumstances the
corrections officers faced in this case, it was the possibility that A.H., J.S., and
J.V. might make good on their threats to assault A.L., if given the opportunity.
The record, however, discloses that corrections officers separated the detainees
3
In analogous circumstances, we have held that substantial risk of serious
harm may exist “where prison officials disregard repeated warnings of danger to a
particular prisoner and continually refuse to make the situation safer, for example
by [] separating the prisoner from other inmates who previously have attacked
him on multiple occasions.” Grimsley v. MacKay, 93 F.3d 676, 681 (10th Cir.
1996) (emphases added) (citations omitted).
-6-
from one another and from A.L. by imposing “pre-disc” requirements on A.H.,
J.S., and J.V. immediately upon their first and only threats to A.L. Corrections
officers accordingly restricted the movements of A.H., J.S., and J.V., such that
they were not permitted any contact with A.L., one another, or other detainees.
Such defensive action on the part of the corrections officers cannot be
characterized as objective disregard of substantial risk of serious harm. 4
It is, of course, true that—despite these precautions—Officer Casado left
the control panel unlocked when A.H. exited his cell to shower. And that doing
so—whether consciously or not, and whether A.H. knew the panel was unlocked
or not—created some risk that A.H. might access the control panel, despite the
presence of two additional corrections officers nearby and the absence of any
other detainees in the common area.
It is likewise true these circumstances created some risk that A.H. might
somehow coordinate with J.S. and J.V.—who were segregated from one another
upstairs—to unlock A.L.’s cell. And that none of the three corrections officers
present would intervene before some combination of A.H., J.S., and J.V. made
4
Judge Baldock concludes the plaintiff has satisfied her burden to
demonstrate an objective and substantial risk of serious harm. But in reaching
that conclusion, he insists that reasonableness requires protective measures
sufficient to “ensure A.L.’s safety.” Concurring & Dissenting Op. at 14. The
failure to prevent harm, however, cannot on its own establish an objective
disregard of substantial risk. Put another way, Judge Baldock’s conclusion relies
on the fact of the assault to establish its likelihood.
-7-
good on their threats against A.L. In my view, however, this cascade of unlikely
events should not overshadow the countervailing reality that corrections officers
responded swiftly and decisively to the sole incidence of threats directed against
A.L. by imposing “pre-disc” on A.H., J.S., and J.V.
Given the unlikelihood that A.H.—while subject to “pre-disc”—would
successfully access the unlocked control panel in the presence of three corrections
officers, I would describe the risk these circumstances posed to A.L. as
attenuated, rather than substantial. I would accordingly conclude the plaintiff has
failed to demonstrate the requisite substantial risk of serious harm to carry her
burden under the objective component of our inquiry.
2. Subjective Inquiry
I would also conclude the corrections officers lacked awareness of the facts
necessary to infer subjective knowledge of this risk. Our subjective inquiry
requires that prison officials manifest actual knowledge of facts from which an
inference could be drawn regarding the existence of a substantial risk. Farmer,
511 U.S. at 837. The Supreme Court has likewise emphasized that prison
officials must actually draw the appropriate inference. Id. at 837–38 (“[A]n
official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be condemned
as the infliction of punishment.”).
-8-
As a threshold observation, the record discloses nothing to suggest the
corrections officers actually drew the inference of substantial risk to A.L. To be
sure, the record certainly suggests some level of negligence. Taken as a whole,
however, the fact that three officers allowed A.H.—and only A.H.—outside of his
cell while the control panel remains unlocked does not satisfy the subjective
inquiry’s requirement of actual knowledge.
As Judge Carson’s concurring opinion acknowledges, and as Judge Baldock
argues in his partial dissent, the case against Sergeant Luna is strongest, on
account of his firsthand experience with at least one prior incident of
unauthorized access. 5 But even if Sergeant Luna or the others were familiar with
these incidents, I do not believe we can conclude they actually drew the inference
of substantial risk to A.L. For one, all of these incidents transpired more than a
5
The record discloses four incidents involving the control panel in the
eighteen months that preceded this assault. Two of these cases—October 2014
and February 2015, respectively—apparently involved detainees taunting
corrections officers. In the latter instance, the incident report lists Sergeant Luna
as the supervising officer. Two other incidents—November 2014 and January
2015, respectively—bear greater similarity to the circumstances of this case.
In November 2014, one detainee lured the sole corrections officer present to a
nearby closet on the pretext of retrieving a mop so that a second detainee could
access the control panel and unlock cells occupied by a third co-conspirator and
their eventual victim. The third detainee then attacked the victim in his newly-
unlocked cell. In January 2015, a single detainee somehow accessed the control
panel to unlock another detainee’s cell. It is not clear whether any of the cases
involved detainees in pre disc.
-9-
year before the attack on A.L. Moreover, only two of them actually involved
detainee-on-detainee violence.
From what best I can discern from the record, both incidents involved
readily-distinguishable factual circumstances. In the first incident, one detainee
lured the duty officer to a nearby closet on pretext of retrieving a mop so that a
second detainee could access the control panel and unlock cells occupied by a
third co-conspirator and their eventual victim. Notwithstanding a superficial
resemblance, several significant differences undermine the connection between
this incident and the assault on A.L. As a condition of “pre-disc,” A.H. was the
sole detainee permitted in the common area. And three corrections officers—as
opposed to just one—observed his movements from their perch, just yards away
from the commissary kiosk and the control panel.
The record discloses fewer specifics about the details of the second
incident. But we know a single detainee somehow accessed the control panel to
unlock another detainee’s cell. And that he attacked the second detainee. The
record does not disclose whether other detainees were present within the common
area, or how many, if any, corrections officers might have been supervising the
detainees. For these reasons, I would conclude the same logic that undermines
the applicability of the previous incident to the assault on A.L. applies to this
incident.
-10-
None of these distinctions should excuse the non-constitutional significance
of these incidents. Whenever a detainee—particularly a juvenile—suffers
violence at the hands of another detainee, it is important for the facility to
identify and to address whatever underlying issues may have contributed to that
harm. By the same token, we must acknowledge that not every wrong will sound
in constitutional right and remedy. And—in part because these prior incidents
present distinguishable factual circumstances—I cannot infer subjective
knowledge of the supposed substantial risk these circumstances posed to A.L.
To the extent, moreover, that we did infer subjective knowledge, Ms.
Contreras has provided no evidence to suggest the corrections officers actually
reached that inference. Even if I shared the conviction that reasonable corrections
officers should have inferred A.H.’s plans from two previous incidents that
transpired more than a year prior to these events, the Supreme Court has
emphasized that the Eighth Amendment requires more than ordinary recklessness:
“[W]e cannot accept petitioner’s argument . . . that a prison official who was
unaware of the substantial risk of harm to an inmate may nevertheless be held
liable under the Eighth Amendment if the risk was obvious and a reasonable
prison official would have noticed it.” See Farmer, 511 U.S. at 841–42 (emphasis
added). Said simply, we do not require corrections officers to read minds.
-11-
Although the corrections officers sought to protect A.L. from harm, it
seems likely that negligence undermined their efforts. Negligence offers much
cause for concern here; but precedent tells us it cannot elicit constitutional
intervention. See, e.g., Berry v. City of Muskogee, 900 F.2d 1489, 1495–96 (10th
Cir. 1990) (observing that deliberate indifference requires a greater degree of
fault than negligence or gross negligence). To be clear, the facility likely could
have addressed the risk of detainee-on-detainee violence more effectively. But
we must abide by the Supreme Court’s mandate to assess both objective risk and
subjective awareness of that risk.
The subjective inquiry requires that we ask whether the officers knew of a
substantial risk and consciously disregarded the dangers that risk posed to A.L. I
cannot infer subjective knowledge of any substantial risk to A.L. from this record.
And no evidence indicates the corrections officers manifested the requisite actual
knowledge of this risk, in any event. I would accordingly conclude that Ms.
Contreras has failed to carry her burden.
B. Clearly Established Law
Even if we were to conclude a constitutional violation had occurred, the
circumstances of this case nonetheless cannot satisfy the rigorous standards the
Supreme Court has articulated for clearly established law. A “clearly established
right is one that is sufficiently clear that every reasonable official would have
-12-
understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (citations and quotation marks omitted).
We need not “require a case directly on point,” but the Supreme Court has
cautioned that “existing precedent must have placed the statutory or constitutional
question beyond debate.” Id. (citations and quotation marks omitted). This is
because qualified immunity is meant to “protect[] all but the plainly incompetent
or those who knowingly violate the law.” Id. (citations and quotation marks
omitted). The Supreme Court has repeatedly instructed lower courts “not to
define clearly established law at a high level of generality.” Id. (citations and
quotation marks omitted).
As the Court has likewise emphasized “[t]he dispositive question is whether
the violative nature of particular conduct is clearly established.” Id. (citations
and quotation marks omitted) (emphasis in original). Such an inquiry “must be
undertaken in light of the specific context of the case, not as a broad general
proposition.” Id. (citations and quotation marks omitted) (emphasis added).
Ms. Contreras frames the constitutional violation at a high level of
generality: “[A] known but disregarded threat to an inmate’s physical safety,
combined with evidence of prior assaults and information about a specific threat
can establish deliberate indifference.” Aplt. Br. 21. As a threshold matter, I
-13-
doubt this formulation can satisfy the rigorous standards for specificity required
by the Supreme Court. 6 See Mullenix, 136 S. Ct. at 308.
But even if—for the sake of argument—we take this rule as given, the two
Tenth Circuit authorities cited most extensively by Ms. Contreras, Berry v. City of
Muskogee, 900 F.2d 1489 (10th Cir. 1990), and Howard v. Waide, 534 F.3d 1227(10th Cir. 2008), do not yield fair notice of a constitutional violation in this case.
In Berry, we held that a reasonable jury could conclude corrections officers
had manifested deliberate indifference to the prospect of violence when one
inmate was murdered by two others he had testified against at trial. 900 F.2d at
1498. Several observations readily distinguish this case from Berry. For one, the
corrections officers in Berry took no action upon learning of the potential threat
posed by the inmate’s co-defendants. In this matter, by contrast, corrections
officers placed all three aggressors onto “pre-disc” immediately upon their first
and only threats to A.L.
Moreover, in Berry the perpetrators freely roamed the facility to access the
murder weapon—a wire from a broom stored in a common area—under the
6
As Judge Carson acknowledges, we have previously applied a “sliding
scale” analysis to determine whether clearly established law prohibits official
conduct. I share his reservations regarding the “sliding scale” approach, given
recent guidance from the Supreme Court. See also Mark. D. Standridge, Requiem
for the Sliding Scale: The Quiet Ascent—and Slow Death—of the Tenth Circuit’s
Peculiar Approach to Qualified Immunity, 20 Wyo. L. Rev. 43 (2020).
-14-
nominal supervision of just one corrections officer. Id. at 1497. In this case—on
account of the “pre-disc” precautions we have already discussed—A.H. was
permitted outside of his cell only when other detainees were locked securely
within theirs. And only then when not one, but three officers were present to
oversee his activities. In our view, Berry cannot clearly establish a constitutional
violation under the circumstances we now consider.
In Howard, we reversed the district court’s decision granting summary
judgment to corrections officers who failed to intervene when a newly-transferred
inmate complained that members of the same prison gang who sexually abused
him at a prior facility once again had begun to threaten him. 534 F.3d at1241–42. The inmate was sexually assaulted three times before corrections
officers acted on his request to be relocated to a facility that did not contain
members of this gang. Id. at 1233–34.
In my view, the same central observation that distinguished this case from
Berry applies with equal force to Howard. Here, corrections officers placed all
three aggressors onto “pre-disc” lockdown as soon as they threatened A.L. Of
course, Sergeant Luna, Officer Casado, and Cadet Platero should have been more
attentive. Perhaps more suspicious, too. And certainly less distracted by the
television. But we cannot ascribe constitutional significance to their negligence.
-15-
Both Berry and Howard clearly establish that credible threats merit
reasonable response. These authorities do not, however, demand perfection under
the challenging circumstances that corrections officers often confront; for the
Supreme Court has observed that “not . . . every injury suffered by one prisoner at
the hands of another [will] translate into constitutional liability.” Farmer, 511
U.S. at 834 (cleaned up).
The out-of-circuit authorities cited by Ms. Contreras fare little better. In
Erickson v. Holloway, 77 F.3d 1078, 1080 (8th Cir. 1996), an inmate accessed an
electronic control panel only after corrections officers left the room that housed
the panel entirely unattended for six minutes. Given the Supreme Court’s
insistence that we contemplate “the specific context of [this] case,” a world of
difference separates the facts of Erickson from the situation we confront. See
Mullenix 136 S. Ct. at 308. After all, Sergeant Luna, Officer Casado, and Cadet
Platero never left the common room unattended for any period of time.
The same problem undermines Ms. Contreras’ reliance upon Street v.
Corrs. Corp. of Am., 102 F.3d 810 (6th Cir. 1996). In that case, a corrections
officer—using an electronic control panel—opened every door in the unit after
one inmate had threatened to assault another. See id. at 813–14. The inmate
made good on this threat, and the Sixth Circuit reversed the district court’s
decision granting summary judgment to the corrections officer. Id. at 816. In this
-16-
case, by contrast, Sergeant Luna, Officer Casado, and Cadet Platero imposed and
enforced a regime of “pre-disc” lockdown against A.H. and his co-conspirators
that sought to mitigate the risks all three aggressors might pose to A.L.
Nor does the final authority Ms. Contreras cites extensively, Junior v.
Anderson, 724 F.3d 812 (7th Cir. 2013), clearly establish a constitutional
violation under these circumstances. In that case, a corrections officer all but
ignored the revelation that two cells that should have been secured remained
unlocked. See id. at 813–14. After an inmate who should have been secured in
one of these cells subsequently joined several others in attacking another prisoner,
the Seventh Circuit reversed the district court’s decision granting summary
judgment to the corrections officer, who had also abandoned her post for at least
fifteen minutes. See id. at 815.
In my view, the same differences that distinguish Erickson and Street from
“the specific context of [this] case” also diminish the significance of Junior. See
Mullenix 136 S. Ct. at 308. Although the record discloses that Officer Casado
and Cadet Platero may have realized that the control panel remained unsecured,
only one detainee—A.H., who was subject to “pre-disc” lockdown—was present
in the common area. And all three corrections officers remained just steps away
from their charge, as well as the electronic control panel.
-17-
It is, of course, true that some “constitutional violation[s] may be so
obvious that similar conduct seldom arises in our cases,” such that “it would be
remarkable if the most obviously unconstitutional conduct should be the most
immune from liability only because it is so flagrantly unlawful that few dare its
attempt.” Lowe v. Raemisch, 864 F.3d 1205, 1210–11 (10th Cir. 2017) (citations
and quotation marks omitted). But we have construed this functional exception to
the presumption against fair notice quite narrowly, as we must effectively
conclude “our precedents render the legality of the conduct undebatable.” See id.at 1211 (citing Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016)). This is
not such a case.
In sum, no authorities clearly establish a constitutional violation under
these circumstances.
III. Conclusion
For the reasons previously articulated, I would affirm the district court’s
decision to grant summary judgment in this matter.
-18-
18-2176, Contreras v. Dona Ana Board of County Commissioners
CARSON, J., Concurring in part and concurring in the judgment
Make no mistake. We expect corrections officers to protect those under their
supervision—especially children. The officers here—more attuned to a television show
than the juveniles in their charge—allowed violent inmates to brutally assault A.L. I find
their failure to protect A.L. inexcusable. But 42 U.S.C. § 1983 provides no remedy to
Plaintiff for unprofessional or negligent conduct. Instead, Plaintiff may only recover
against the officers if they violated a clearly established constitutional right. We begin,
therefore, by determining whether Plaintiff has met her burden.
Plaintiff credibly argues that the officers’ conduct violated A.L’s constitutional
rights. She presents a strong case against the supervisor—Officer Luna. After all, he
knew that inmates previously accessed the control panel to commit violence against one
another. But the other officers did not share Luna’s prior knowledge. So the case against
them is not so clear.
Even so, I would not reach the constitutional question because, even if the officers
violated A.L’s constitutional rights, those rights were not clearly established. When our
body of caselaw contains no case with remarkably similar facts, we look to a “sliding
scale” analysis to determine whether clearly established law prohibited an officer’s
conduct. Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Under
the sliding scale, the worse the conduct given prevailing constitutional principles, the less
specificity is required from prior caselaw to clearly establish the violation. Id.Some recent decisions suggest the sliding scale approach may conflict with current
Supreme Court authority, but no case has overruled it. See Lowe v. Raemisch, 864 F.3d
1205, 1211 n.10 (10th Cir. 2017) (noting our sliding scale approach may allow us to find
a clearly established right even when a precedent is neither on point nor obviously
applicable); Aldaba v. Pickens, 844 F.3d 870, 874 n.1 (10th Cir. 2016). With no case
overruling it, the sliding-scale approach lives in this Circuit. But that said, we must apply
it cautiously as contemporary Supreme Court cases require an ever-increasing level of
factual similarity for prior decisions to place a statutory or constitutional question beyond
debate.1 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (emphasizing that Court has
repeatedly told lower courts not to define clearly established law at a high level of
generality).
I view this case as exceedingly close on both prongs of the qualified immunity
analysis. Ultimately, however, I conclude the precedents from this Circuit and the
Supreme Court do not place the constitutional question beyond debate (even considering
the sliding scale approach). Plaintiff’s claims must therefore fail against the individual
officers. So I join Chief Judge Tymkovich’s opinion as far as it addresses the “clearly
established” prong of the qualified immunity analysis. Because I would not reach the
1
The Supreme Court has remanded at least one case we decided under the sliding
scale approach for further consideration of whether the relevant body of law “clearly
established” a constitutional question. Pickens v. Aldaba, 136 S. Ct. 479 (2015).
Although we originally decided the sliding scale warranted finding a right “clearly
established,” on remand we determined our prior caselaw did not sufficiently mirror the
factual circumstances of the case to sustain that finding. Aldaba, 844 F.3d at 879.
2
constitutional question, I join neither Judge Baldock’s nor Judge Tymkovich’s well-
presented analysis of that issue.
That leaves Plaintiff’s Monell claim against the Board. The district court
determined that Plaintiff’s claim against the Board failed as a matter of law because she
did not satisfy the third element for municipal liability—deliberate indifference. The
district court determined that the Board could not be deliberately indifferent to a
constitutional right unless the right is clearly established. See, e.g., Arrington-Bey v.
City of Bedford Heights, 858 F.3d 988, 994 (6th Cir. 2017). And because the district
court found the right was not clearly established, it ruled the Board could not have been
deliberately indifferent to A.L.’s rights. I agree.
Whether a municipal policymaker can be liable for deliberate indifference to a
constitutional right that has not yet been established is an interesting one. And the
answer depends on the type of claim alleged against the municipality. Consider first a
claim based directly on a municipal act such as the termination of a municipal employee
without due process. In that case, “the violated right need not be clearly established
because fault and causation obviously belong to the city.” Arrington-Bey, 858 F.3d at
994–95.
But then consider a claim based on a municipality’s failure to properly train its
employees. There, the theory stems from the municipality’s failure to teach its
employees not to violate a person’s constitutional rights. In that posture, the
“municipality’s alleged responsibility for a constitutional violation stems from an
employee’s unconstitutional act [and the municipality’s] failure to prevent the harm must
3
be shown to be deliberate under ‘rigorous requirements of culpability and causation.’”
Id. at 995 (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 415
(1997)). Thus, the violated right in a failure to train case “must be clearly established
because a municipality cannot deliberately shirk a constitutional duty unless that duty is
clear. Id. The Second, Sixth, and Eighth Circuits have each reached this conclusion.
Townes v. City of New York, 176 F.3d 138, 143–44 (2d Cir. 1999); Arrington-Bey, 858
F.3d at 995; Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en
banc).
Judge Baldock believes that in application this means the district court
inappropriately granted the Board qualified immunity. I agree that municipalities cannot
invoke the doctrine of qualified immunity. Owen v. City of Independence, 445 U.S. 622,
624–25 (1980) (holding that municipalities cannot assert the doctrine of qualified
immunity). But this case differs remarkably from Owen. Owen arose from a claim of
deliberate municipal indifference where the municipality directly caused the
constitutional injury. Id. at 633. Here, by contrast, Plaintiff advances a failure to train
theory in which she “must show not only that an employee’s act caused a constitutional
tort, but also that the city’s failure to train its employees caused the employee’s violation
and that the city culpably declined to train its ‘employees to handle recurring situations
presenting an obvious potential for such a violation.’” Arrington-Bey, 858 F.3d at 995
(citing Brown, 520 U.S. at 409). The Supreme Court’s statement “obvious potential for
such a violation” requires that the constitutional violation be obvious (i.e., clearly
established). Requiring that the right be clearly established in this context does not give
4
qualified immunity to municipalities; it simply follows the Supreme Court’s demand
“that deliberate indifference in fact be deliberate.” Arrington-Bey, 858 F.3d at 995
(citing Szabla, 486 F.3d at 394).
Plaintiff alleged the County engaged in deliberate indifference by failing to
adequately train its correction officers. For the reasons discussed above, however,
Plaintiff’s claim must fail because she cannot show the right the Board violated was
obvious. I would therefore affirm the district court’s order granting summary judgment
to the Board on the Monell claim. I thus concur in the judgment on the Monell claim,
although on a different ground than Chief Judge Tymkovich who concluded no
constitutional violation occurred.
For these reasons, I respectfully concur in part and concur in the judgment.
5
18-2176, Contreras v. Doña Ana Board of County Commissioners
BALDOCK, Circuit Judge, concurring in part, dissenting in part.1
Corrections officers cannot absolutely guarantee the safety of those in their care.
Nor does the Constitution sweep so broadly as to require every cell in a detention center to
always remain locked for the protection of its guests. But after violent threats have been
made by a group of particularly violent detainees, any reasonable official cognizant of his
duty to protect would know that the failure to secure the control panel while a would-be
assailant is outside his cell is objectively unreasonable.
As my colleagues accurately point out, qualified immunity protects “all but the
plainly incompetent.” Concurring Op. at 13 (Tymkovich, C.J.) (quoting Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam)). Because Sergeant Luna’s conduct was plainly
incompetent, qualified immunity should afford him no shelter. And because Doña Ana
County Detention Center (DACDC) was deliberately indifferent to a pattern of tortious
conduct by its employees, it cannot be shielded from liability on the ground that A.L.’s
asserted constitutional right was not clearly established. For these reasons, I would reverse
the district court’s grant of summary judgment to Sergeant Luna and the DACDC and
remand for further proceedings. I therefore respectfully dissent.
1
The parties have my apologies for the delay in issuing this decision. Unfortunately,
too many cases in our civil justice system today drag on for far too long. My colleagues
and I strive to counteract this lamentable trend by efficiently resolving appeals. But
sometimes we fail, and it is the parties who must bear the burden of our shortcomings.
I.
The historical facts relevant to this appeal, unlike the inferences to be drawn from
them, are undisputed.2 On the evening of May 3, 2016, officials booked A.L., then fourteen
years old, into the DACDC after he allegedly violated his probation by disregarding his
curfew. At the time of A.L.’s detention, the three juveniles responsible for the forthcoming
attack on him, J.V., J.S., and A.H., were also detained at the DACDC. All three juveniles
had exhibited disciplinary problems just days and hours prior to their attack on A.L.
On April 25, 2016, for example, J.S. attacked another juvenile detainee in the
dayroom “by punching him several times in the face.” Three other detainees were soon
attacking the victim as well. J.S. stated he attacked the victim because he “had been talking
shit the day before.” DACDC officials placed J.S. on “pre-disciplinary lockdown” (pre-
disc) for his aberrant behavior.
A.H was also placed on pre-disc on April 22. A DACDC caseworker’s notes on
A.H. indicate that on April 25 “[p]er Sgt. Luna[,] [A.H.] is not able to go to medical for lab
draw due to inmate being aggressive and uncooperative with staff at this time. Per Sgt.
Luna[,] ‘it is not safe to take [A.H.] out of his cell.’ Will continue to monitor.” As reflected
by a psychiatrist’s evaluation report, A.H. believed he had an “anger problem” and that
“people [were] wanting to get [him].” A.H. stated: “I go off on everyone when I get mad.”
2
To properly analyze whether Plaintiff has carried her burden to withstand the
defense of qualified immunity at the summary judgment stage, one must begin by
considering all material facts contained in the record. Chief Judge Tymkovich
conspicuously discounts, among other things, recent past incidents in the DACDC juvenile
pod where detainees accessed the control panel and the three assailants’ known violent
tendencies—in particular those of A.H.
2
When A.H. was taken off pre-disc on April 30 and allowed to leave his cell, he
wasted no time in yelling out “it’s time to get on lockdown again.” Moments later,
A.H. approached a table in the dayroom where J.V. sat with J.S. and said something
to J.S. At this point, J.V. and A.H. began to argue. J.V. then stood up and “went
towards [A.H.] and began punching him in the face and head with closed fists. [A.H.]
. . . punched back with closed fists.” After officers separated the two miscreants and
medical staff cleared A.H., he returned to the dayroom. There, A.H continued his
disruptive behavior by yelling “obscenities and gang slurs toward [J.V.],” causing yet
another fight. J.V. reported the fight broke out because “[A.H.] kept talking ‘shit’ to
him and . . . went after him.” As a result of their altercation, both J.V. and A.H. were
placed on pre-disc.
Following lockdown around 9:30 p.m. on May 3, the evening before the attack
on A.L., the three soon-to-be assailants, all fresh off pre-disc, once again became
disruptive. J.V. began banging on his cell door, broke his county-issued cup and
deodorant stick, and covered his cell window with his mattress and sheets. Even after
the officer on duty uncovered J.V.’s window, he continued to bang and kick on his
door. Around 10:15 p.m., J.S. and A.H. joined J.V. and began kicking on their cell
doors. The juveniles refused to discontinue their disruptive behavior.
Around 10:22 p.m., officials brought A.L. into the juvenile pod’s dayroom. The
dayroom is surrounded by two levels of individual cells. J.V., J.S., and A.H. were housed
separately on the pod’s second level. When A.L. entered the dayroom, the trio began
yelling at A.L., telling him they were going to “fuck him up.” A.L. was placed in a cell on
3
the second level near the others. As a result of their disruptive behaviors and threats, J.V.,
J.S., and A.H. were again placed on pre-disc. While on pre-disc, the three juveniles were
to be confined to their cells except when they were individually permitted to engage in
recreation time, shower, use the phone, and access the commissary kiosk. None of the
three were allowed out of their cells while any one of the others or A.L. was out of his cell.
Shortly after 9:00 a.m. the next morning, A.H., still on pre-disc, was alone
outside his cell. He had just finished showering in the shower room located on the
north side of the dayroom. Consistent with their placement on pre-disc the night
before, J.V. and J.S. remained locked in their cells, as did A.L. Defendants, Sergeant
Luna, Officer Casado, and Cadet Platero, were sitting at tables in the juvenile pod’s
dayroom watching television. Officer Casado, who had been employed at the
DACDC for just over a year, was the assigned dayroom officer. Sergeant Luna, the
supervising officer, had been employed at the DACDC for twenty-three years. Cadet
Platero had been employed at the DACDC for just over two months.
All three Defendants knew J.V., J.S., and A.H. had threatened to assault A.L. the
night before and were on pre-disc as a result. The record is unclear as to whether Casado
or Platero were aware of the precise nature of the trio’s recent disciplinary problems at the
DACDC, but Defendants’ response brief tells us they knew the three were “generally
violent.” The brief also tells us Sergeant Luna knew the three had “histories of assault at
DACDC.” And Sergeant Luna specifically was aware, as illustrated by the caseworker’s
April 25 notes on A.H., that A.H. was a problem and not to be trusted outside his cell.
4
Located on the juvenile pod’s west wall in front of where the individual
Defendants were sitting was a commissary kiosk. Five to ten feet left of the kiosk,
on a podium referred to as the “Officers’ Platform Station,” was a control panel used
to electronically lock and unlock the juvenile pod’s cell doors. The control panel is
a touchscreen device that allows an officer to lock or unlock individual cell doors
with the touch of a button after entry of a security code or password. Officers may
log off or lock the panel with the touch of a button rendering it ineffective until
someone with a security code once again logs in.
The closest thing in the record to a written DACDC policy about locking the
control panel is found in a code of ethics contained in the “Standard Operating
Procedures” manual for the DACDC. The code provides:
A. If an officer is going to leave his workstation, it must
either be locked or the officer must log off.
B. If an officer happens to come upon a workstation that was
left open and unlocked by another user, it is the officer’s
responsibility to log that user off and log in under their
username and password if they are going to use it.
After showering, A.H. asked Sergeant Luna for permission to access the
commissary kiosk. Sergeant Luna granted permission. On a security tape, one sees
J.V. and J.S. standing in their second-level cells watching events transpire in the
dayroom. As A.H. approached the kiosk, he looked over his shoulder to see if any of
the Defendants were paying attention. They were watching TV. When A.H. sensed
5
his opportunity, he approached the control panel, which he obviously suspected might
be unlocked (he was right), and proceeded to open J.V.’s, J.S.’s, and A.L.’s cell doors.
J.V. and J.S. immediately exited their cells and ran into A.L.’s neighboring cell,
closing the door and causing it to lock behind them. Making good on their threats, J.V.
and J.S. began to beat A.L. A.H. avoided Officer Casado’s pursuit, ran up the stairs,
and locked himself in his own cell while the chaos ensued. Sergeant Luna and Officer
Casado ran upstairs to A.L.’s cell. Cadet Platero opened A.L.’s cell from the control
panel down below. When J.V. and J.S. refused to stop beating A.L., Sergeant Luna
doused the two with pepper spray. A.L. was transported to the hospital. As a result
of the attack, he suffered a broken jaw, was rendered unconscious, and was left
bleeding from both ears.
The day after the attack on A.L., Lieutenant Mendoza of the DACDC’s Professional
Standards Unit interviewed Sergeant Luna and Officer Casado. Officer Casado said this
about securing the control panel in the juvenile pod:
[Casado] did confirm that the control panel can be locked if needed
but that he does not remember if he locked it in this instance. He stated
that he believes nobody on his shift logs off from the panel as normal
practice when he walks away from the officers’ podium. He stated that
since he has been assigned to juvenile . . . he has never been directed
to log off the panel. He did confirm that he was the last person at the
officers’ podium before the incident occurred.
Sergeant Luna disagreed with Casado, however, when Mendoza questioned him
about control panel procedures in the juvenile pod:
I questioned [Sgt. Luna] regarding whether or not officers on his shift
are locking the control panel when they locate themselves away from
the podium. He stated that it is common practice for staff on his shift
6
to lock the panel but that he was not watching to see if Casado locked
it in this instance. He stated that he has to assume that Casado would
have locked it as other officers do, but he does not stand next to all
officers each time they move away from the podium. He stated that
ever since juvenile had been moved to the adult side, there was never
a directive given to him about locking the panel although it was
getting done.
Rather than submitting to an interview the day after the incident, Cadet Platero
drafted a memorandum in which she indicated that “when she observed Officer Casado
get up from his post at the officers’ podium to sit at the table, she noticed that he did
not lock the control panel that opens each cell in the dayroom.” During an interview
with Lieutenant Mendoza about three weeks after the incident, Platero confirmed that
she witnessed “Officer Casado walk away from the officers’ podium without locking
the control panel.”
Notably, in an affidavit executed two months after the attack on A.L., Officer
Casado changed his story. Casado now attests that during his training at the DACDC,
he was “specifically” told (I wonder by whom) that the policy of the DACDC was to
log out of the control panel after he used it, rendering the control panel ineffective until
someone with a security code once again logged in. Casado says he was “never”
instructed nor allowed to leave the control panel unlocked.
Cadet Platero similarly attests that during her training she was instructed (I
wonder by whom) on the use of the control panel: “I was trained that I should always
lock or log out of a control panel before leaving it. Before the incident, I saw Casado
leave the control panel unlocked which I knew to be a policy violation, but I did not alert
anyone.” Sergeant Luna attests that he instructs all officers under his supervision “to lock
7
all pods’ control panels, including the juvenile pod.” Sergeant Luna states he has “never”
instructed a cadet or detention officer to leave the control panel unlocked at the DACDC;
nor is he aware of any other sergeants or supervising officers ever having done so.
Importantly, A.H.’s unauthorized use of the unlocked control panel was not the first
time a detainee at the DACDC had improperly accessed the control panel in the juvenile
pod’s dayroom. Juvenile detainees had accessed the control panel on at least four prior
occasions beginning in October 2014, or about eighteen months prior to the attack on A.L.
On October 25, 2014, a detainee insisted on crossing his body over the “red line” in front
of the control panel. After being warned, the detainee again crossed the red line and leaned
his body against the control panel. As a result, DACDC officials placed him on pre-disc.
The fourth incident was much like the first. On February 12, 2015, a juvenile detainee at
the DACDC “kept crossing the red line and laying [his] hands on the control panel.” When
the detainee crossed the line and touched the control panel a second time, he too was placed
on pre-disc. The incident report lists Sergeant Luna as the juvenile pod’s supervising
officer at the time of this infraction.
Unfortunately, the second and third incidents involving a juvenile detainee’s
unauthorized access to the control panel were not so harmless. The similarities between
those two incidents and the incident at issue are substantial. Less than a month after the
first incident, on November 23, 2014, a juvenile detainee asked the officer on duty to
retrieve a mop from the dayroom closet. When the officer did so, a second detainee
accessed the dayroom’s control panel, which was unlocked, and opened the cells of a third
and fourth detainee. The third detainee then ran from his unlocked cell into the unlocked
8
cell of the fourth detainee and attacked him. After order had been restored, an assisting
officer was escorting the third detainee to booking when he saw him toss a white object
toward the trash can. The object was a sharpened portion of a toothbrush designed for use
as a weapon.
A third incident occurred on January 20, 2015. On that date, a juvenile detainee
attacked another detainee in the latter’s cell. The assailant told officials that “he went
towards the officers’ desk, crossed the red line and opened the other detainee’s cell by
pushing a button on the dayroom [control] panel.” The assailant admitted he went into the
victim’s cell and threw the first punch because the victim had called him a “snitch.”
According to the incident report, both detainees were placed on pre-disc and the “dayroom
panel was disabled due to this incident.” When the control panel in the juvenile pod again
became operational is unclear from the record—certainly too soon from A.L.’s perspective.
II.
To survive summary judgment as to Defendants’ individual liability under § 1983,
Plaintiff must show (1) sufficient evidence exists for a factfinder to conclude one or
more of the individual Defendants violated A.L.’s constitutional right to due process
by failing to protect him from violence at the hands of other detainees, and (2) this right
was clearly established at the time of the violation. Matthews v. Bergdorf, 889 F.3d
1136, 1143 (10th Cir. 2018). Because the individual Defendants assert the defense of
qualified immunity, the burden is on Plaintiff to establish her right to proceed against each
Defendant individually. Id. at 1144–45. Plaintiff has undoubtedly carried this burden with
respect to her claim against Sergeant Luna.
9
A.
In determining whether A.L.’s constitutional rights were violated, we must view the
evidence in the light most favorable to Plaintiff and refrain from resolving factual disputes
in favor of the individual Defendants (i.e., the parties seeking summary judgment). See
McCoy v. Meyers, 887 F.3d 1034, 1044–45 (10th Cir. 2018). When all the evidence is
properly considered under this standard, a reasonable jury could find Sergeant Luna was
deliberately indifferent to the substantial risk of harm with which J.V., J.S., and A.H. had
threatened A.L.
1.
The point of departure for our inquiry into whether any of the individual
Defendants caused A.L. to suffer a constitutional deprivation is the Supreme Court’s
decision in Farmer v. Brennan, 511 U.S. 825 (1994). Farmer established that the Eighth
Amendment’s prohibition against cruel and unusual punishment imposes a duty on
officials to provide prisoners with “humane conditions of confinement.” Id. at 832.
Prison officials who are aware of a substantial risk to an inmate’s safety have a duty to
protect the inmate from harm and therefore must take reasonable steps to guarantee his
safety. Id. at 832–33.
But of course, absent a formal adjudication of guilt against A.L., the Eighth
Amendment has no application. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
Nevertheless, “[i]n evaluating the constitutionality of conditions . . . of pretrial detention
that implicate only the protection against deprivation of liberty without due process of law,
. . . the proper inquiry is whether those conditions amount to punishment of the detainee.”
10
Id. at 535. To determine whether the evidence is sufficient for a jury to find any or all of
the individual Defendants “punished” A.L. and deprived him of liberty without due process
of law in violation of the Fourteenth Amendment, Tenth Circuit precedent requires us to
employ an analysis identical to the analysis we employ in Eighth Amendment cases
challenging a prisoner’s conditions of confinement under a failure-to-protect theory. Perry
v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018); cf. Wolfish, 441 U.S. at 546 n.28
(finding “no reason” to distinguish between pretrial detainees and convicted inmates in
reviewing a correctional center’s security practices).
Before a jury may find an individual Defendant violated A.L.’s right to due
process, Plaintiff must satisfy two elements: one objective and one subjective.
Farmer, 511 U.S. at 834. To satisfy the objective component, Plaintiff must show
A.L. was detained “under conditions posing a substantial risk of serious harm.” Id.If Plaintiff satisfies this objective prong, she must then establish that at least one of
the individual Defendants was deliberately indifferent to the substantial risk A.L.
faced. Id. This is a subjective inquiry. Id.While “deliberate indifference entails something more than mere negligence, . . .
it is satisfied by something less than acts or omissions for the very purpose of causing
harm or with knowledge that harm will result.” Id. at 835. “[T]he official must both
be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id. at 837. “[A]n official’s
failure to alleviate a significant risk that he should have perceived but did not, while
11
no cause for commendation, cannot . . . be condemned as the infliction of punishment.”3
Id. at 838. In short, “deliberate indifference is equivalent to recklessness in this
context.” Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006).
2.
On this record, viewing the evidence in the light most favorable to Plaintiff, a
reasonable jury could conclude that A.L. faced an “objective ‘substantial risk of
serious harm.’” Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (quoting
Farmer, 511 U.S. at 834). When DACDC officials escorted A.L. to his cell the night
before the attack, three juvenile detainees with very recent histories of disciplinary
3
In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held
an objective reasonableness standard governs excessive force claims brought by
pretrial detainees under the Fourteenth Amendment. In Castro v. Cty. of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), the Ninth Circuit imaginatively
interpreted Kingsley and held an objective standard also governs failure-to-protect
claims of pretrial detainees raised under the Fourteenth Amendment. And In
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), the Second Circuit followed suit.
For years, however, federal courts across the land, including the Tenth Circuit, have
relied on Wolfish to apply Farmer’s subjective deliberate-indifference standard to
claims that state actors failed to protect pretrial detainees in violation of the
Fourteenth Amendment. See, e.g., Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th
Cir. 1999); Walton v. Dawson, 752 F.3d 1109, 1117–18 (8th Cir. 2014). To suggest
Kingsley overturned such long-standing precedent, uninvited and sub silentio,
simply proves too much. Absent the Supreme Court overturning its own precedent
or our own, we are bound by it. And I suspect the Court may never do so because,
as Judge Ikuta ably points out in her dissent to Castro, a fundamental difference
exists between the action underlying an excessive force claim and the inaction
underlying a deliberate-indifference claim: “[A] person who unknowingly fails to
act—even when such a failure is objectively unreasonable —is negligent at most.
And the Supreme Court has made clear that ‘liability for negligently inflicted harm
is categorically beneath the threshold of constitutional due process.’” Castro, 833
F.3d at 1086 (Ikuta, J., dissenting) (quoting Kingsley, 135 S. Ct. at 2472).
12
problems involving violent encounters at the DACDC, and housed in close proximity
to A.L., directly threatened to “fuck him up” while raising a ruckus. As a result, the
three juveniles, each of whom could turn violent with little warning, had been placed
on pre-disc precisely to alleviate a substantial risk of serious harm to A.L.,
themselves, and others.
According to Defendants and Chief Judge Tymkovich, these circumstances did
not present a substantial risk of harm because the juvenile assailants were placed on pre-
disc and three corrections officers were present—physically, at least—in the dayroom
when the attack occurred. Based on these “precautions,” Defendants maintain that an
unsecured control panel cannot, as a matter of law, result in § 1983 liability for failure
to protect A.L. What this conclusion conveniently fails to acknowledge is this: A.H.
was one very troubled and volatile miscreant on the loose within easy reach of an
unlocked control panel. That panel provided ready access to J.V.’s, J.S.’s, and A.L.’s
cells. And those cells were located upstairs in close proximity to one another but at a
distance from Defendants downstairs, who were charged with the duty to protect A.L.
Because the kiosk and control panel were in such close proximity, and J.V.’s,
J.S.’s, and A.L.’s cells were far removed from the control panel, a dozen DACDC guards
in the dayroom watching TV would not have prevented A.H. from rushing the control
panel and pushing the few buttons necessary to unlock the cell doors and facilitate the
attack on A.L. After all, what did A.H. have to lose? Another placement on pre-disc?
The facts well illustrate that A.H. could not have cared less whether he was on pre-
disc. He was on pre-disc repeatedly. Under these circumstances, branding the attack
13
on A.L. as the culmination of a “cascade of unlikely events” and labeling the risk
he faced as “attenuated,” see Concurring Op. at 7–8 (Tymkovich, C.J.), wholly ignores
both the reality of the situation presented and the reality of involuntary detention.
Defendants further argue the fact the three assailants, after threatening A.L., had
been placed on pre-disc with its accompanying restrictions illustrates reasonable
measures were taken to avert the attack. The question, however, is not whether placing
the three miscreants on pre-disc was a reasonable thing to do. It surely was given the
trio’s recent unruly and violent behavior at the DACDC. But pre-disc is nothing more
than a label. Its terms must be enforced by reasonable and appropriate measures.
The central question here is whether the individual Defendants acted reasonably
by leaving the control panel unsecured given the circumstances described above. Placing
the three juveniles on pre-disc and “segregating” them from each other and A.L. could
not alone ensure A.L.’s safety if such segregation was not maintained through the
implementation of reasonable measures such as securing the cell doors. “In
determining whether prison officials acted reasonably, we consider what actions they
took, if any, as well as available alternatives that might have been known to them”—
like securing the juvenile pod’s control panel precisely because the assailants were on
pre-disc for threatening A.L. with bodily harm. Howard, 534 F.3d at 1240.
A.H. was a known problem with a recent history of violent outbursts at the DACDC.
In fact, just one week before the attack on A.L., Sergeant Luna reported it was not safe to
take A.H. out of his cell. Half measures—such as sitting in the juvenile pod watching TV
near an unlocked control panel while A.H. wandered the dayroom—availed A.L. nothing.
14
Defendants’ delayed reactions when A.H. rushed the control panel, as the video of the
incident shows, belies any claim that the corrections officers “observed his movements
from their perch[.]” See Concurring Op. at 7–8 (Tymkovich, C.J.).
Just as the effectiveness of prison segregation depended on keeping cell door keys
out of the hands of would-be assailants prior to advances in technology, the effectiveness
of the segregation in this case depended on the control panel being locked and
inaccessible—a wholly unremarkable proposition. As Defendants admit in their brief:
“Excluding the unlocked control panel and [A.H.’s] access to it, DACDC’s preventative
discipline and supervision were reasonable.” (emphasis added). With that much I agree.
Thus, I would conclude that Plaintiff has created a triable issue as to whether the individual
Defendants disregarded the substantial risk of serious harm A.L. faced “by failing to take
reasonable measures to abate it.” See Farmer, 511 U.S. at 847.
3.
The next question is whether a reasonable jury could find any of the individual
Defendants recklessly disregarded the risk of serious harm to A.L when the control panel
was left unlocked and accessible to A.H. on the morning of the attack. A jury cannot decide
a detention center official’s failure to protect a victim amounted to deliberate indifference
if they preliminarily find he or she failed to perceive the significant risk of harm to the
victim, no matter how objectively obvious. Id. at 838. Where the risk is obvious such that
a reasonable person would realize it, a jury certainly may infer that a defendant did in fact
realize it. Id. at 842. Such an inference cannot be conclusive, however, “for we know that
15
people are not always conscious of what reasonable people would be conscious of.” Id.(quoting 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.7, p. 335 (1986)).
Although it is an extremely close call, I would conclude that Plaintiff has failed to
carry her burden on the subjective prong with respect to Officer Casado and Cadet Platero.
To be sure, sufficient evidence exists to conclude these Defendants knew they were
required to keep the control panel locked when not in use. Cadet Platero also knew that
Officer Casado’s failure to secure the panel was a violation of DACDC policy because she
was trained (who trained her she does not say) to lock the panel before leaving it. And of
course, any reasonable person would realize it is unsafe to leave a control panel unlocked
in a juvenile detention center at any point—much less after violent threats have been made.
But what is missing from the calculus is evidence that these junior officers were
aware of facts from which the inference could be drawn, and also drew the inference, that
leaving the control panel unlocked posed a serious risk of harm to A.L. See id. at 837–
38. Nothing suggests, for example, that either of these corrections officers were aware of
the past incidents at the DACDC where detainees accessed the unsecured control panel and
opened the cell doors to attack other detainees. Although Officer Casado and Cadet Platero
indisputably acted negligently—and, in my view, with gross negligence—their
nonfeasance ultimately falls short of deliberate indifference.
The same cannot be said for Sergeant Luna, however. Based on the conflicting
record evidence, a jury could infer that Sergeant Luna was aware the control panel was
unlocked at the time of the attack on A.L because it was routinely unlocked. Such an
inference arises from (1) Defendant Casado’s statements (in direct conflict with Sergeant’s
16
Luna’s statements) that he believed nobody on his shift ever logged off the control panel
in the juvenile pod and he had never been trained or directed to do so; (2) Defendant
Platero’s statement that she witnessed Casado move away from the control panel without
locking it just prior to the attack but said or did nothing; (3) the “pervasive” factual dispute,
as recognized by the district court, surrounding DACDC control panel protocol or lack
thereof; and (4) A.H.’s decision to access the panel the morning of the attack.
A reasonable jury could further infer that, as a DACDC sergeant with supervisory
responsibilities and direct knowledge of one prior incident, Luna was aware of past
problems surrounding operation of the control panel in the juvenile pod. On two previous
occasions within the past eighteen months, juvenile detainees accessed an unlocked control
panel in order to precipitate attacks on other detainees—the same unfortunate scenario we
face here. Notably, the second of these two incidents prompted DACDC officials to disable
the control panel in the juvenile pod for an unspecified time period. Sergeant Luna must
have known that the control panel in the juvenile pod was disabled for a time precisely
because of these attacks given his supervisory position at the DACDC. Moreover, Sergeant
Luna was the supervising officer in the juvenile pod on a subsequent occasion when a
detainee approached the control panel and, as a result, was placed on pre-disc.
The past incidents involving the control panel at the DACDC cannot be dismissed
as too remote from and dissimilar to the facts presented here to bear on Sergeant Luna’s
state of mind. It is true that the first incident involved two detainees outside their cells,
whereas A.H. was the sole detainee permitted in the dayroom at the time of the attack on
A.L. But this begs the question: How many juvenile detainees does it take to access an
17
unsecured control panel and push a button or two? If past incidents at the DACDC are any
indication, two may be better, but one is enough.
Indeed, the January 20, 2015 incident involved a single detainee who accessed the
control panel, opened another detainee’s cell, and then proceeded to assault his fellow
detainee in the latter’s cell. Because the record does not provide any additional details,
Chief Judge Tymkovich attempts to discount this incident by summarily “conclud[ing] the
same logic that undermines the applicability of the previous incident to the assault on A.L.
applies to this incident.” Concurring Op. at 10 (Tymkovich, C.J.). Properly viewing the
evidence in the light most favorable to Plaintiff, however, leads to the opposite
conclusion—that is, the similarities between this incident and the incident at issue are
substantial. See McCoy, 887 F.3d at 1044–45 (explaining we must consider the facts and
all inferences in the light most favorable to the party asserting the injury).
Last, but not least, don’t forget about Sergeant Luna’s particular knowledge
regarding A.H.’s violent propensities. Recall that Sergeant Luna specifically was aware,
as illustrated by the DACDC caseworker’s April 25 notes, that A.H. was especially
dangerous and could not be trusted outside his cell. Yet, rather than keep an eye on A.H.
while he roamed free in the dayroom, Sergeant Luna decided to watch TV. Based on
Sergeant Luna’s delayed reaction after A.H. accessed the control panel, there must’ve been
a good show on that morning.
As John Adams once reminded us: “Facts are stubborn things; and whatever may
be our wishes, inclinations, or the dictates of our passions, they cannot alter the state of the
facts and evidence.” John Bartlett, Familiar Quotations 380 (15th ed. 1980). Given
18
Sergeant Luna’s knowledge of past incidents involving the control panel and the particular
risk A.H. posed outside his cell—combined with all the other material facts in the record—
Luna’s mental state at the time of the attack is within the province of a jury, not this
Court. For these reasons, I would conclude Plaintiff has carried her burden of
demonstrating Sergeant Luna was deliberately indifferent to A.L.’s safety and violated his
constitutional right to protection from violence.
B.
This brings me to the second part of our qualified-immunity analysis. My
colleagues conclude that Sergeant Luna is entitled to qualified immunity even if he violated
the Constitution because A.L.’s asserted constitutional right was not clearly established at
the time of the violation. Respectfully, I remain unpersuaded.
1.
Whether Sergeant Luna may be held liable for his wrongdoing at this point
turns on the “objective legal reasonableness” of his conduct assessed in light of (1)
the factual context of this case and (2) the legal rules that were “clearly established”
at the time of the attack. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)
(facts); Anderson v. Creighton, 483 U.S. 635, 639 (1987) (rules). Sergeant Luna has
nothing to worry about if his “actions could reasonably have been thought consistent
with the [rules] [he] [is] alleged to have violated.” Anderson, 483 U.S. at 638.
In every case, we first look for a Supreme Court or Tenth Circuit decision on point
to determine whether the legal rule under which a plaintiff seeks to hold a defendant liable
is clearly established. Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009). Absent
19
any such decision, we consider whether the clearly established weight of authority from
our sister circuits holds the rule to be as the plaintiff maintains. Id. Neither the Supreme
Court nor this Court, however, has ever required “the very action in question” to have
“previously been held unlawful.” Anderson, 483 U.S. at 640; Halley v. Huckaby, 902 F.3d
1136, 1149 (10th Cir. 2018) (“[A] prior case need not be exactly parallel to the conduct
here for the officials to have been on notice of clearly established law.”). Instead, “in the
light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640.
To be sure, prior decisions involving similar facts provide strong support for a
conclusion that the law was clearly established. This is why, in most cases, “like”
decisions are necessary before we reach such a conclusion. They are not necessary
in every case, however, because the Supreme Court has told us that “general
statements of the law are not inherently incapable of giving fair and clear warning”
to reasonable persons. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United
States v. Lanier, 520 U.S. 259, 271 (1997)).
Hope recognized that “a general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific conduct in question,
even though ‘the very action in question has not previously been held unlawful.’” Id.(quoting Lanier, 520 U.S. at 271). Such recognition was possible because, in Hope,
the Court “shifted the qualified immunity analysis from a scavenger hunt for prior
cases with precisely the same facts toward the more relevant inquiry of whether the
law put officials on fair notice that the described conduct was unconstitutional.”
Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004) (McConnell, J.).
20
Accordingly, qualified immunity should not be granted “if government defendants
fail to make reasonable application of the prevailing law to their circumstances.” Id.(internal quotations omitted).
While “like cases” undoubtedly bear upon “fair notice,” the relevant standard in
ascertaining “clearly established law” is the latter, not the former. The qualified-
immunity standard simply does not call for a “single level of [rule] specificity sufficient
in every instance.” Hope, 536 U.S. at 740 (quoting Lanier, 520 U.S. at 271); see also
Cordova, 569 F.3d at 1192. Rather, the precedent on which a court relies to conclude
the law was clearly established need only “be clear enough that every reasonable
official would interpret it to establish the particular rule the plaintiff seeks to apply.”
Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (emphasis added).
Throughout the development of the “clearly established law” standard, the Supreme
Court has stressed that the specificity of the rule is especially important in Fourth
Amendment cases. See, e.g., City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)
(per curiam) (excessive force); Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)
(same); Wesby, 138 S. Ct. at 590 (unlawful arrest); Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (excessive force). The concerns associated with defining clearly
established law “at a high level of generality” is most salient in the Fourth Amendment
context due to the imprecise nature of the relevant legal standards and how such standards
apply in rapidly evolving circumstances. Mullenix, 136 S. Ct. at 308; see also Wesby, 138
S. Ct. at 590. This is particularly true in excessive force cases because “officers are often
forced to make split-second judgments—in circumstances that are tense, uncertain, and
21
rapidly evolving—about the amount of force that is necessary in a particular situation.”
Kisela, 138 S. Ct. at 1152 (citation omitted).
Because every § 1983 case does not sit at one end of a spectrum or the other, we
have recognized, based on what the Supreme Court has told us, that the degree of
specificity required from prior caselaw depends on the character of the challenged
conduct. Pierce, 359 F.3d at 1298. Thus, in Browder v. City of Albuquerque, we
explained that “[i]n deciding the ‘clearly established law’ question, [the Tenth Circuit]
employs a ‘sliding scale’ under which ‘the more obviously egregious the conduct in light
of prevailing constitutional principles, the less specificity is required from prior case
law to clearly establish the violation.’” 787 F.3d 1076, 1082 (10th Cir. 2015)
(Gorsuch, J.) (quoting Shroff v. Spellman, 604 F.3d 1179, 1189–90 (10th Cir. 2010)).
My colleagues’ reservations about our sliding-scale approach comes as no surprise
given the Supreme Court’s recent qualified-immunity decisions. The Court’s slew of
per curiam reversals in the past five years—nearly all of which concern the use of excessive
force—appears to have most circuit courts tiptoeing around qualified immunity’s clearly
established prong. But as Judge Carson recognizes: “With no case overruling it, the
sliding-scale approach lives in this Circuit.” Concurring Op. at 2 (Carson, J.). Until either
this Court or the Supreme Court sounds the death knell for our sliding-scale approach, we
are bound to apply it rather than merely pay lip service to it.4
4
In Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10 (10th Cir. 2017), we questioned
whether our sliding-scale approach conflicted with Supreme Court precedent post Hope.
“The possibility of a conflict arises because the sliding-scale approach may allow us to find
a clearly established right even when a precedent is neither on point nor obviously
22
2.
With this understanding of the applicable standard in mind, let’s consider whether
Sergeant Luna is entitled to qualified immunity. Four decades ago, this Court held that
the Constitution imposes a duty on corrections officers to take reasonable measures to
protect inmates under their charge from violence at the hands of other inmates. Ramos v.
Lamm, 639 F.2d 559, 572–74 (10th Cir. 1980). Then in Farmer, decided in 1994, the
Supreme Court clarified the contours of this rule, holding that a breach of this duty violates
the Constitution where a corrections officer “knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate it.”
511 U.S. at 847.
No one can reasonably dispute post Farmer and its progeny that once Sergeant Luna
learned of the substantial risk of harm to A.L from the assailants’ threats and subjectively
perceived such threats, he had a duty to take reasonable measures to protect A.L. Thus,
the rule under which Plaintiff seeks to hold Sergeant Luna liable is just this: When a
detention center officer knows a detainee faces a substantial risk of serious harm from
applicable.” Id. (emphasis added) (citing Aldaba v. Pickens, 844 F.3d 870, 874 n.1 (10th
Cir. 2016)). But this brings us back to the point we made in Pierce: Should the second
prong of qualified-immunity analysis turn solely on the results of a “scavenger hunt” for
prior cases with the same facts, or should it focus on the “more relevant inquiry” of whether
the law put reasonable officials on fair notice that the described conduct was
unconstitutional? 359 F.3d at 1298 (emphasis added). The majority apparently thinks the
former. Only the Supreme Court, however, can definitively resolve this question. And as
Lowe recognized, so far its precedents send us mixed signals. But one thing is certain: The
Supreme Court has neither directly commented upon nor overruled our sliding-scale
approach. The “possibility of a conflict” is simply not enough to conclude such an
approach is no longer the law in this circuit.
23
another detainee yet fails to employ reasonable available measures to lessen the risk, the
officer breaches his or her constitutional duty to protect the vulnerable detainee.
But the fact a constitutional duty to protect arises in the face of an officer’s
knowledge does not mean it is necessarily clear in every case, or even most cases,
what reasonable measures consist of or, in other words, what such duty to protect
specifically requires of the officer. See, e.g., Cox v. Glanz, 800 F.3d 1231, 1247 (10th
Cir. 2015) (holding an inmate’s right to proper suicide screening procedures during
booking was not clearly established). The salient question here is whether this rule
was sufficiently specific in the factual context of this case to give Sergeant Luna fair
warning that his failure to secure the control panel could give rise to constitutional
liability. Mullenix, 136 S. Ct. at 308 (explaining courts must undertake the clearly
established inquiry in light of the specific context of the case).
Here, viewing the facts in the light most favorable to Plaintiff, Sergeant Luna was
aware: (1) J.V., J.S., and A.H. had been placed on pre-disc for collectively threatening A.L.
less than twelve hours earlier; (2) the three assailants were generally unruly and willing to
fight; (3) the three assailants were to be kept away from one another and from A.L. until
further notice; (4) the three assailants would be allowed outside their cells daily but only
with restrictions; (5) A.H. was outside his cell and in the dayroom just prior to the attack;
(6) A.H. could not be trusted outside his cell; (7) the control panel securing the cells had
been left unlocked; and (8) two incidents occurred in the juvenile pod in the past eighteen
months where, to precipitate an attack, one detainee opened the cell door of another
detainee from the unsecured control panel. See Tolan v. Cotton, 572 U.S. 650, 657 (2014)
24
(stressing need to view facts and draw inferences in favor of the nonmovant when deciding
the clearly established prong). What Sergeant Luna effectively contests is whether a
reasonable corrections officer under these circumstances would have understood the state
of the law on the morning of the attack required him to ensure the control panel was locked.
The constitutional question here is beyond “beyond debate.” Wesby, 138 S. Ct. at
589. Mindful that qualified immunity does not protect “the plainly incompetent,” Kisela,
138 S. Ct. at 1152, the unlawfulness of Sergeant Luna’s conduct in failing to secure the
control panel follows immediately from the rule that corrections officers must employ
reasonable measures to mitigate a known risk of serious harm to a threatened detainee.5
“After all, some things are so obviously unlawful that they don’t require detailed
explanation . . . .” Browder, 787 F.3d at 1082.
The clearly established standard for determining whether an official has violated a
detainee’s right to reasonable protection from a known risk of serious harm “is not
extremely abstract or imprecise under the facts alleged here, but rather is relatively
straightforward and not difficult to apply.” A.N. ex rel. Ponder v. Syling, 928 F.3d 1191,
5
The circuit court case closest factually to the one at bar may be Erickson v.
Holloway, 77 F.3d 1078 (8th Cir. 1996). There, the defendant jail guard left the dayroom
control panel unattended for about six minutes to make a routine check of the cell block.
Id. at 1080. Contrary to jail policy, the defendant had not disabled the control panel to
prevent inmates from operating the locks. Id. While the defendant was away, an inmate
opened the electronic lock to the recreation area allowing the assailant to access and beat
the plaintiff. Id. Nearly two decades later, the Eighth Circuit, citing cases from the Third,
Seventh, Eighth, and Eleventh Circuits, commented that “prison officials have an
obligation, in a variety of circumstances, to protect non-violent inmates from violent
inmates by keeping cell doors locked.” Walton v. Dawson, 752 F.3d 1109, 1121 (8th Cir.
2014) (emphasis added).
25
1198–99 (10th Cir. 2019); see also Pauly, 137 S. Ct. at 552 (explaining the requirement
that clearly established law be “particularized to the facts of the case” is intended to shield
officers from liability based on alleged violations of “extremely abstract rights”). Put
differently, this rule is sufficiently specific to have put Sergeant Luna on notice that his
failure to ensure the control panel was secure violated A.L.’s constitutional right to
protection from violence at the hands of J.V., J.S., and A.H. Because any reasonable
corrections officer in Sergeant Luna’s position would have known his conduct violated
A.L.’s asserted right, Luna should not be entitled to qualified immunity.
III.
Finally, I turn to Defendant DACDC’s “municipal” liability. Plaintiff focuses her
constitutional claim of municipal liability on a failure-to-train theory. To prevail against
the DACDC under this theory, Plaintiff must show (1) a municipal employee committed a
constitutional violation against A.L. and (2) a DACDC policy or custom was the moving
force behind such violation. Cordova, 569 F.3d at 1193. As noted above, a jury could
conclude that Sergeant Luna violated A.L.’s Fourteenth Amendment right to substantive
due process. The question that remains, then, is whether a DACDC policy or custom was
the moving force behind the underlying constitutional violation.
A.
In City of Canton v. Harris, the Supreme Court held § 1983 permitted a factfinder
to hold a municipality liable for its failure to train employees. 489 U.S. 378, 380 (1989).
The “critical question” before the Court was: “Under what circumstances can inadequate
training be found to be a ‘policy’ that is actionable under § 1983?” Id. at 383. Identifying
26
conduct, or lack thereof, properly attributable to the DACDC is hardly enough to impose
municipal liability on it. “Only where a municipality’s failure to train its employees in a
relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can
such a shortcoming be properly thought of as a . . . ‘policy or custom’ that is actionable
under § 1983.” Id. at 389. When, like here, a plaintiff does not claim the municipality has
directly inflicted a constitutional injury, as in the case of a facially unconstitutional policy,
but has caused an employee to do so, “rigorous standards of culpability and causation must
be applied” to ensure the municipality is not held vicariously liable for its employees’
actions.”6 Bd. Of Cty. Commr’s v. Brown, 520 U.S. 397, 405 (1997).
To establish a municipality’s deliberate indifference under a failure-to-train theory,
a plaintiff usually must show a “pattern of tortious conduct.” Bryson v. City of Oklahoma
City, 627 F.3d 784, 789 (2010). Decisionmakers’ “continued adherence to an approach
they know or should know has failed to prevent tortious conduct by employees may
establish the conscious disregard for the consequences of their action—the ‘deliberate
indifference’—necessary to trigger municipal liability.” Brown, 520 U.S. at 407. In
6
Based on the record—in particular Sergeant Luna’s admission of supervisory
authority in his personal affidavit and the failure of the DACDC to make any effort
to rebut the same—Sergeant Luna was responsible for the operation of an unwritten
discretionary policy in the juvenile pod regarding the securing of the control panel.
Thus, at the time of the attack, Sergeant Luna possessed authority to establish
municipal policy in the juvenile pod over use of the control panel. In Pembaur v.
City of Cincinnati, the Supreme Court recognized that if a county board delegates its
power to establish final policy to a delegatee, the delegatee’s decisions would
represent county policy and could give rise to municipal liability. 475 U.S. 469, 483
n.12 (1986). Notably, however, Plaintiff does not seek to hold the DACDC liable
based on the theory that Sergeant Luna’s alleged wrongdoing was the DACDC’s
wrongdoing.
27
addition, such a pattern “may tend to show that the lack of proper training, rather than a
one-time negligent administration of the program or factors peculiar to the officer involved
in a particular incident, is the ‘moving force’ behind the plaintiff’s injury.” Id. at 408.
In Canton, however, the Supreme Court acknowledged “the possibility that
evidence of a single violation of federal rights, accompanied by a showing that a
municipality has failed to train its employees to handle recurring situations presenting an
obvious potential for such a violation, could trigger municipal liability.” Brown, 520 U.S.
at 1391; accord Canton, 489 U.S. at 390 & n.10. Violent encounters between detainees
“may be a highly predictable or plainly obvious consequence” of the DACDC’s failure to
train its officials on the fundamentals necessary to address recurring situations like threats
of violence or more specifically how, in the presence of such threats, to secure the control
panel when not in use. Bryson, 627 F.3d at 789; cf. Canton, 489 U.S. at 396–97 (O’Connor,
J., concurring in part) (recognizing a claim that officers were inadequately trained in
diagnosing mental illness fell short of the kind of “obvious” need for training sufficient to
show deliberate indifference). But we need not ask whether the attack on A.L., considered
in a vacuum, is sufficient to sustain municipal liability. Here, we most certainly have a
pattern of detainees improperly accessing the control panel in the juvenile pod sufficient to
have placed the DACDC on notice that, sooner or later, its purported failure to train was
“substantially certain to result in a constitutional violation.” Bryson, 627 F.3d at 789.
The district court concluded Plaintiff failed to establish a pattern of tortious conduct
surrounding the control panel and therefore DACDC officials would not have understood
their failure to train officers on appropriate control panel protocol was substantially certain
28
to result in a constitutional violation. Nonsense. Detainees on four separate occasions
within eighteen months of the attack on A.L. inappropriately accessed the control panel in
the juvenile pod’s dayroom. Fortunately, on the first and fourth occasions no harm
resulted. Nonetheless, DACDC officials placed the culprits on pre-disc precisely because
they realized such conduct was unacceptable and wrought with peril. On the second and
third occasions, neither DACDC officials nor targeted detainees were so fortunate. Rather,
targeted detainees were ruthlessly attacked and beaten because the control panel had been
left unlocked. These four occasions considered in the aggregate were sufficient to place
DACDC officials on notice that an unsecured control panel in the juvenile pod may result
in problems of constitutional proportions for the DACDC, making the questions of
causation and deliberate indifference in this case for the jury.
B.
One final point deserves clarification. Relying on cases from our sister circuits, the
district court alternatively concluded that because a failure-to-train claim requires a
showing of deliberate indifference on the part of the DACDC, Plaintiff must also show the
asserted right was clearly established at the time of the attack. See Arrington-Bey v. City
of Bedford Heights, 858 F.3d 988 (6th Cir. 2017); Szabla v. City of Brooklyn Park, 486
F.3d 385 (8th Cir. 2007) (en banc); Townes v. City of New York, 176 F.3d 138, 143 (2d Cir.
1999). Judge Carson accepts this approach. I have my doubts.
To be sure, not all Monell claims are created equal. But neither are all failure-to-
train theories. As explained above, the Supreme Court has distinguished deliberate-
indifference claims based on “a pattern of tortious conduct by inadequately trained
29
employees” from those based on “evidence of a single violation of federal rights.” Brown,
520 U.S. at 407–09; Canton, 489 U.S. at 390 & n.10. Brown’s statement regarding an
“obvious potential for such a violation” concerned the latter. 520 U.S. at 409; see also id.
at 402 (“We granted certiorari . . . to decide whether the county was properly held liable
for respondent’s injuries based on Sheriff Moore’s single decision to hire Burns.”
(emphasis added)); id. at 415–16 (concluding that “Bryan County is not liable for Sheriff
Moore’s isolated decision to hire Burns without adequate screening” (emphasis added)).
As this Court has explained, “deliberate indifference may be found absent a pattern
of unconstitutional behavior if a violation of federal rights is a highly predictable or plainly
obvious consequence of a municipality’s action or inaction.” Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d 760, 771 (10th Cir. 2013) (emphasis added; citation and
brackets omitted). Conversely, when a deliberate-indifference claim is based on a pattern
of tortious conduct by inadequately trained employees, a plaintiff need not also prove the
underlying violation was obvious (i.e., clearly established). This is because the pattern of
unlawful behavior puts a municipal policymaker on sufficient “notice that its action or
failure to act is substantially certain to result in a constitutional violation[.]” Id. Thus, a
municipality can manifest deliberate indifference even when its employee (i.e., the
individual defendant) did not violate clearly established law.
The out-of-circuit authorities Judge Carson cites do not compel a contrary
conclusion. In each of these cases, the plaintiff’s deliberate-indifference claim was based
on evidence of a single violation of federal rights, not a pattern of past tortious conduct by
municipal employees. See, e.g., Szabla, 486 F.3d at 392–93 (“[T]his was a one-time
30
incident, and there is no evidence of a pattern of constitutional violations making it
‘obvious’ that additional training or safeguards were necessary.”); see also Arrington-Bey,
858 F.3d at 990–92; Townes, 176 F.3d at 142. Indeed, Judge Colloton recognized this
critical distinction in Szabla. 486 F.3d at 392–93.
Perhaps requiring the violated right to be clearly established is the proper approach
when dealing with deliberate-indifference claims premised on an isolated constitutional
violation. On the other hand, maybe not. Consider the following hypothetical, which is
based on a recent Eleventh Circuit decision:
A municipal policymaker arms its police officers with firearms because it knows
the officers will sometimes need to arrest dangerous individuals. Yet, the municipality
fails to train the officers regarding the lawful use of deadly force. During an investigation,
an officer shoots a ten-year-old child lying on the ground within arm’s reach of the officer,
while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The child’s
mother sues the officer for excessive force and also brings a Monell claim against the
municipality for its failure to train the officer. A court holds, as the Eleventh Circuit did,
that the officer is entitled to qualified immunity because his actions did not violate any
clearly established rights. See Corbitt v. Vickers, 929 F.3d 1304, 1323 (11th Cir. 2019)
(“Because we find no violation of a clearly established right, we need not reach the other
qualified immunity question of whether a constitutional violation occurred in the first
place.”), cert. denied, No. 19-679, 2020 WL 3146693 (U.S. June 15, 2020).
Applying the rule Judge Carson champions today, does this also “spell the end of
th[e] Monell claim” against the municipality? See Arrington-Bey, 858 F.3d at 995. If the
31
answer is “yes,” I fail to see how this deliberate-indifference standard doesn’t effectively
afford a form of vicarious immunity to municipalities. Cf. Hagans v. Franklin Cty.
Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012) (“Because Ratcliff did not violate a
clearly established right, it follows that his employer, the Franklin County Sheriff’s Office,
is also entitled to summary judgment.”). In my view, these are dangerous waters. See
Owen v. City of Independence, 445 U.S. 622, 650 (1980) (“[W]e can discern no
‘tradition so well ground in history and reason’ that would warrant the conclusion
that in enacting [§ 1983], the 42nd Congress sub silentio extended to municipalities
a qualified immunity based on the good faith of their officers.”).
Fortunately, we have no occasion in this case to lay down a categorical rule one way
or the other because Plaintiff’s deliberate-indifference claim against the DACDC is based
on a pattern of tortious conduct by inadequately trained employees. Both the Supreme
Court and this Court have unequivocally held such evidence may satisfy the deliberate-
indifference element of a Monell claim. Brown, 520 U.S. at 407–08; Schneider, 717 F.3d
at 771. Because that settles the issue before us, I would leave for another day the question
whether a deliberate-indifference claim based on a single violation of federal rights
necessarily requires the asserted right to be clearly established.
IV.
For the reasons stated above, I would affirm the district court’s decision to grant
summary judgment to Defendants Casado and Platero, but I would reverse the judgment
with respect to Sergeant Luna and the DACDC and remand for further proceedings.
I respectfully dissent.
32