Keith v. Koerner

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 9, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
TRACY KEITH,
Plaintiff - Appellant
v.
No. 15-3219
RICHARD D. KOERNER,
Defendant - Appellee,
and
ANASTACIO GALLARDO,
Defendant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:11-CV-02281-DDC)
_________________________________
Ann Marie Duffy, Mayer Brown LLP, Washington, District of Columbia (John Kurtz,
Hubbard & Kurtz, LLP, Kansas City, Missouri, with her on the briefs), for Plaintiff-
Appellant.
John Wesley Smith, Assistant Attorney General, Office of the Attorney General for the
State of Kansas, Topeka, Kansas, for Defendant-Appellee.
_________________________________
Before HARTZ, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
While incarcerated at the Topeka Correctional Facility (TCF), an all-female state
prison, Tracy Keith was raped by a prison maintenance employee. Ms. Keith filed a
§ 1983 suit alleging that prison officials—including Warden Richard Koerner—violated
her Eighth Amendment rights by creating an environment in which sexual misconduct
was likely to occur. The district court granted summary judgment to Warden Koerner
based on qualified immunity. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm in part and reverse in part.
I. BACKGROUND1
A. Factual History
Tracy Keith was incarcerated at TCF from November 2006 to May 2010. During
Ms. Keith’s first year at TCF, Richard Koerner was warden and Anastacio “Ted”
Gallardo was a maintenance instructor. Mr. Gallardo taught a vocational plumbing class
for a group of inmates, including Ms. Keith and Sandra McMillan.
On October 1, 2007, Ms. McMillan proposed that Ms. Keith “would be helped out
financially” if she had a “sexual interaction” with Mr. Gallardo. Ms. Keith agreed to
perform oral sex but said she would not have intercourse with Mr. Gallardo. The next
day, Mr. Gallardo, Ms. Keith, and Ms. McMillan left the plumbing class under the
pretense of picking up a sink and went to an old gymnasium used for storage. The group
1
We described Ms. Keith’s basic factual allegations in Keith v. Koerner (Keith I),
707 F.3d 1185, 1187 (10th Cir. 2013), where we affirmed the district court’s denial of
Warden Koerner’s motion to dismiss. With the benefit of discovery, the parties presented
a more complete version of the facts at summary judgment. We therefore provide
additional facts relevant to the issues in this appeal.
2
entered the building and Ms. Keith performed oral sex on Mr. Gallardo, while Ms.
McMillan acted as a lookout. Mr. Gallardo then tried to kiss Ms. Keith. When she pulled
away, he pulled down her pants and forcibly penetrated her.
About two weeks later, Ms. Keith suspected she might be pregnant. She and Mr.
Gallardo discussed abortive options, but Mr. Gallardo soon abandoned his position at
TCF, coming to work for the last time on November 5, 2007. Ten days later, TCF
administrators received an anonymous note, which read, “Tracy Keith is pregnant. It is
Ted Gallardo’s.” An internal investigation began, including a test that confirmed Ms.
Keith’s pregnancy. Warden Koerner then referred the case to the Topeka Police
Department. Mr. Gallardo was prosecuted in Kansas state court and pled guilty to
unlawful sexual relations and two counts of traffic in contraband in a correctional
institution. At the end of December 2007, Ms. Keith terminated her pregnancy.
B. Procedural History
On May 17, 2011, Ms. Keith filed a § 1983 suit against Mr. Gallardo, Warden
Koerner, and other TCF and Kansas Department of Corrections (KDOC) employees.
When Mr. Gallardo failed to answer, the district court entered default judgment against
him. The district court also granted in part a Rule 12(b)(6) motion, dismissing the claims
against all other defendants except Warden Koerner. On interlocutory appeal, we
affirmed the denial of the motion to dismiss as to Warden Koerner individually. Keith v.
Koerner (Keith I), 707 F.3d 1185 (10th Cir. 2013).
Warden Koerner then filed two motions for summary judgment. He first argued
Ms. Keith’s claims were barred by the statute of limitations, but the district court denied
3
this motion. Warden Koerner later filed a second motion based on qualified immunity,
which the district court granted.
II. DISCUSSION
Ms. Keith now appeals. Warden Koerner maintains the district court correctly
granted summary judgment based on qualified immunity but also argues we can
alternatively affirm based on the statute of limitations. Upon reviewing the evidence
presented at summary judgment, we conclude genuine issues of material fact preclude
summary judgment in Warden Koerner’s favor on either basis.
A. Qualified Immunity
“Our review of summary judgment orders in the qualified immunity context
differs from that applicable to review of other summary judgment decisions.” Thomson v.
Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When a defendant asserts
qualified immunity at summary judgment, the burden shifts to the plaintiff to show that:
(1) the defendant violated a constitutional right and (2) the constitutional right was
clearly established.” Id. (citation omitted). Although “we will construe the facts in the
light most favorable to the plaintiff as the nonmoving party,” id., the plaintiff bears a
“heavy two-part burden,” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)
(citation omitted). “If, and only if, the plaintiff meets this two-part test does a defendant
then bear the traditional burden of the movant for summary judgment—showing that
there are no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law.” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (citation
omitted). But “[w]hile qualified immunity was meant to protect officials performing
4
discretionary duties, it should not present an insurmountable obstacle to plaintiffs seeking
to vindicate their constitutional rights.” Lawmaster v. Ward, 125 F.3d 1341, 1351 (10th
Cir. 1997).
1. Constitutional Violation
We must first determine whether Ms. Keith has established a constitutional
violation. “[A]n inmate has a constitutional right to be secure in her bodily integrity and
free from attack by prison guards.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir.
1993). But we address only the claims against Warden Koerner, which require proof that
Warden Koerner personally committed a constitutional violation. See Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits,
a plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”). Thus, it is not enough that Warden
Koerner acted in a supervisory role when Mr. Gallardo violated Ms. Keith’s
constitutional rights. Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). Rather,
Ms. Keith “must show an ‘affirmative link’ between [Warden Koerner] and the
constitutional violation,” which requires proof of three interrelated elements: (1) personal
involvement; (2) causation; and (3) state of mind. Schneider v. City of Grand Junction
Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614 F.3d at 1195).
a. Personal involvement
Before the Supreme Court’s decision in Ashcroft v. Iqbal, a § 1983 plaintiff had
some flexibility in how to establish a supervisory defendant’s personal involvement: she
could do so by showing personal participation; exercise of control or direction; failure to
5
supervise; or “promulgation, creation, implementation, or utilization of a policy that
caused a deprivation of plaintiff’s rights.” Dodds, 614 F.3d at 1195. We have since
recognized that “Iqbal may have changed the § 1983 supervisory liability landscape,” but
“we have not yet had occasion to determine what allegations of personal involvement . . .
meet Iqbal’s stricter liability standard.” Id. at 1198, 1199. In Dodds, however, we
explained,
Whatever else can be said about Iqbal, . . . we conclude the following basis
of § 1983 liability survived it and ultimately resolves this case: § 1983
allows a plaintiff to impose liability upon a defendant-supervisor who
creates, promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy the enforcement . . . of
which subjects, or causes to be subjected that plaintiff to the deprivation of
any rights secured by the Constitution.
Id. at 1199 (internal quotation marks, citations, and ellipses omitted). Similarly here, we
need not define the standard for personal involvement in all instances because Ms.
Keith’s theories of liability either fail on their merits or fall within the basis of liability
we recognized in Dodds as surviving Iqbal.
To establish personal involvement, Ms. Keith first alleges a failure to train by
Warden Koerner. Although we have not determined whether a failure to train satisfies the
post-Iqbal personal-involvement requirement, the evidence in this case does not support
Ms. Keith’s theory even under our pre-Iqbal precedent. Accordingly, we need not
determine whether the failure-to-train theory would be legally sufficient under a
heightened standard. Second, Ms. Keith argues Warden Koerner failed to implement and
enforce policies that would have prevented the sexual assault by Mr. Gallardo. Because
we concluded in Dodds that personal involvement may be established by a supervisor’s
6
responsibility for policies, Ms. Keith may rely on the same theory here. We discuss each
of these personal liability theories below.
i. Failure to train
Turning first to Ms. Keith’s failure-to-train theory, a supervising prison official
may be liable “[w]here there is essentially a complete failure to train, or training that is so
reckless or grossly negligent that future misconduct is almost inevitable.” Houston v.
Reich, 932 F.2d 883, 888 (10th Cir. 1991) (alteration in original) (citation omitted). It is
not enough to allege “general deficiencies” in a particular training program. Lopez v.
LeMaster, 172 F.3d 756, 760 (10th Cir. 1999). Rather, a plaintiff “must identify a specific
deficiency in the [entity’s] training program closely related to his ultimate injury, and
must prove that the deficiency in training actually caused his jailer to act with deliberate
indifference to his safety.” Id. Ms. Keith has not met this burden.
Ms. Keith relies on a Performance Audit Report (Audit Report),2 prepared by the
Kansas Legislative Division of Post Audit, in which auditors concluded TCF “failed to
provide targeted training” related to the unique issues arising in a female-only facility.
The Audit Report further stated KDOC does not require or provide specialized training
for investigative staff. But in her summary judgment briefing, Ms. Keith admitted that all
TCF employees, including Mr. Gallardo, were “given specific training tailored to issues
of supervising female inmates and staff-inmate relations.”
2
The district court concluded the Audit Report was admissible as a public record
under Rule 803(8) of the Federal Rules of Evidence. Because Warden Koerner does not
challenge this ruling on appeal, we will consider the Audit Report as evidence relevant to
the motion for summary judgment.
7
Even if the Audit Report creates a dispute about the extent of training provided to
TCF employees, it does not provide a basis from which a jury could find “essentially a
complete failure to train” that made sexual misconduct “almost inevitable.” Houston, 932
F.2d at 888. The Audit Report identifies only general training omissions, none of which
provide a basis from which a jury could conclude that the training of TCF employees was
so wholly inadequate that it left employees with the belief they could sexually assault
inmates. To the contrary, the evidence confirms Mr. Gallardo received specific training
about the impropriety of and potential consequences for engaging in sexual misconduct.
See Schneider, 717 F.3d at 774 (finding it “unclear how the training advocated by [the
plaintiff] would have prevented the assault on her” where the responsible officer was
specifically told “that it was unacceptable to engage in sexual relationships with women
whom he met through his job”).
During orientation, each new TCF employee receives a copy of KDOC Internal
Management Policy and Procedure 02-118 (IMPP 02-118), which “absolutely forbids
acts of undue familiarity, including sexual misconduct with offenders,” and defines
“sexual misconduct” as “[s]exual behavior that is directed by an employee toward an
offender(s).” Mr. Gallardo certified he read and received a copy of IMPP 02-118 and
understood a violation would result in disciplinary action, up to and including dismissal.
Mr. Gallardo also confirmed he had read and understood Kan. Stat. Ann. § 21-3520,
which makes it a felony for any KDOC employee to engage in unlawful sexual relations,
i.e., “consensual sexual intercourse, lewd fondling or touching, or sodomy with” an
8
inmate. And Mr. Gallardo acknowledged that violation of the statute would be grounds
for dismissal and possibly prosecution.
Because Warden Koerner provided multiple, explicit prohibitions against sexual
interaction with inmates, we cannot conclude he failed to train his employees in a way
that would establish his personal involvement in Ms. Keith’s injury. Indeed, we have held
that allegations of failure to train were inadequate to support a § 1983 claim where the
officer completed a state training program and we found no evidence of a deficiency in
the training. Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998). In Barney, we
further explained that, even if the training was “less than adequate, we [were] not
persuaded that a plainly obvious consequence of a deficient training program would be
the sexual assault of inmates. Specific or extensive training hardly seems necessary for a
jailer to know that sexually assaulting inmates is inappropriate behavior.” Id. Similarly
here, there is no evidence that additional training would have prevented Mr. Gallardo’s
misconduct. Indeed, Mr. Gallardo raped Ms. Keith after acknowledging that engaging in
sex with or sexually assaulting an inmate was grounds for termination and criminal
prosecution.
ii. Failure to implement and enforce policies
As an alternative basis to establish personal involvement, Ms. Keith asserts
Warden Koerner failed to create and enforce policies to protect TCF inmates from
misconduct by employees. In particular, Ms. Keith maintains Warden Koerner (1) failed
to respond appropriately to misconduct by Mr. Gallardo, (2) overlooked problems within
9
the TCF maintenance department, and (3) failed to enforce policies to curb misconduct
throughout TCF generally.
Before reviewing Ms. Keith’s evidence in each of these areas, we first pause to
explain the two types of conduct relied upon by Ms. Keith. The Audit Report and TCF
records document misconduct in the form of “undue familiarity” and “sexual
misconduct.” “Undue familiarity” includes conduct that “can range from casual
conversation all the way to sexual misconduct,” whereas “sexual misconduct” is defined
as “[s]exual behavior that is directed by an employee toward an offender(s).” As
explained below, Ms. Keith correctly asserts it is “clearly established that the
Constitution forbids a prison supervisor from acting with deliberate indifference to
known risks of sexual assault.” But Ms. Keith has not identified case law clearly
establishing a warden’s personal liability based solely on instances of inappropriate
conduct that may be considered undue familiarity but that do not rise to the level of
sexual misconduct. Consequently, we distinguish between these forms of misconduct in
analyzing Warden Koerner’s personal involvement, relying on the evidence relating to
undue familiarity to the extent it provides context for the conditions at TCF. See
Gonzales v. Martinez, 403 F.3d 1179, 1187 (10th Cir. 2005) (“The undisputed evidence
of the physical assaults on inmates set against the facts of Sheriff Salazar’s knowledge of
reported risks to inmate health or safety, including the documented lapse of security in
the control room, complaints of sexual harassment and intimidation, Dominick’s
demotion for, as Sergeant Zudar characterized it, ‘a combination of things,’ as well as the
presence in the record of Ms. Tefteller’s letter, which she attested was handed to Major
10
Bob, surely raise a reasonable inference that Sheriff Salazar knew of and disregarded an
excessive risk to Ms. Gonzales.” (emphasis added)). Moreover, because we must
“consider the conditions of confinement as a whole” to determine whether Warden
Koerner may be liable for a constitutional violation, Mitchell v. Maynard, 80 F.3d 1433,
1442 (10th Cir. 1996), we also consider the evidence of undue familiarity as part of the
totality of the circumstances present at TCF. Keeping in mind the distinction between
undue familiarity and sexual misconduct, we now turn to the evidence presented by Ms.
Keith at summary judgment.
1) Misconduct by Mr. Gallardo
Ms. Keith first argues Warden Koerner knew about but ignored previous
misconduct by Mr. Gallardo. Ms. Keith cites a July 9, 2007, grievance filed by an inmate
named Kelley Lane. Ms. Lane claimed Mr. Gallardo did not supervise the plumbing
class, singled her out for negative treatment, and had inappropriate conversations with
inmates about drinking, sex, and other personal topics. Ms. Lane was particularly
troubled when Mr. Gallardo asked about a tattoo on her boyfriend’s genitalia.
Warden Koerner testified he never saw this grievance until his deposition and was
unaware of any problems with Mr. Gallardo prior to the incident involving Ms. Keith.
But Deputy Warden William Cummings testified he gave Warden Koerner the grievance
when it was filed. Viewing this evidence and drawing all reasonable inferences in Ms.
Keith’s favor, as we must, we assume Warden Koerner received Ms. Lane’s grievance
and knew about the allegations.
11
Standing alone, however, these facts are insufficient to establish Warden Koerner
failed to respond to a known risk that Mr. Gallardo might sexually assault an inmate. Ms.
Lane reported conversations that were inappropriately sexual in nature, but none of the
allegations suggested Mr. Gallardo might sexually assault an inmate. Mr. Gallardo’s
conduct toward Ms. Lane is appropriately classified as “undue familiarity.” Although Mr.
Gallardo was not disciplined for undue familiarity based on Ms. Lane’s grievance, TCF
officials responded to Ms. Lane’s concerns by removing her from Mr. Gallardo’s class.
This evidence, viewed in isolation, could not support a finding that Warden
Koerner failed to respond to a known risk posed by Mr. Gallardo. It is relevant, however,
to our analysis of whether Ms. Keith generally presented evidence sufficient to support a
reasonable inference of Warden Koerner’s personal involvement in the constitutional
violation. See Gonzales, 403 F.3d at 1187 (“[A] prison official could not escape liability
by showing although ‘he was aware of an obvious, substantial risk to inmate safety, he
did not know that the complainant was especially likely to be assaulted by the specific
prisoner who eventually committed the assault.” (citation omitted)). As a result, we
consider Mr. Gallardo’s previous undue familiarity in conjunction with other evidence
offered by Ms. Keith of problems at TCF, both within the maintenance program and
throughout the facility.
2) Problems within the TCF maintenance program
Addressing issues specific to the TCF maintenance program, Ms. Keith relies on
the Audit Report’s statement that “conditions were ripe for staff misconduct to have
occurred in this Program without being detected.” Such conditions included (1) minimal
12
supervision and monitoring; (2) lack of a set curriculum; and (3) past instances of
improper behavior.
With respect to monitoring and supervision issues, the Audit Report explains,
Although cameras were in the classrooms, instructors received sporadic
supervision and no additional monitoring. When inmates and instructors
were moving around the Facility, no one monitored which inmates were
going with which staff person, where they were going, or how long they
were gone. Additionally, some buildings where supplies were stored and
work orders were being done didn’t have cameras.
In addition, Warden Koerner testified that the maintenance program lacked a structured
curriculum, which resulted in a failure to provide effective vocational training for the
inmates. And Warden Koerner agreed that the maintenance program provided
opportunities for employees “to be outside of other people’s eyesight, outside of cameras,
inside of rooms with individual inmates.” Ms. Keith contends that this evidence supports
an inference that conditions within the maintenance program contributed to an
environment where it was possible for abuse to occur.
According to Ms. Keith, the Audit Report’s description of three investigations of
maintenance employees in the two years prior to Mr. Gallardo’s assault of Ms. Keith,
further supports the inference that the maintenance program may be prone to misconduct.
These incidents involved “improper behavior with inmates, although that behavior wasn’t
always sexual misconduct.” That is, the incidents involved undue familiarity.
In the first case, “it was alleged that a male staff member was alone with an inmate
in a locked room.” Both the employee and inmate denied any inappropriate behavior. In
response to this incident, Warden Koerner established a policy prohibiting maintenance
13
staff from working alone with an inmate. This policy ultimately proved ineffective here
because Ms. McMillan acted as a lookout for Mr. Gallardo while he assaulted Ms. Keith.
In the second case, an employee was dismissed after five disciplinary actions, three of
which involved undue familiarity. Similarly, the third case involved an employee who
had a prior history of undue familiarity and who was dismissed when he gave an inmate
work gloves without following a formal request process.
Although these prior disciplinary actions against maintenance employees involved
undue familiarity rather than sexual misconduct, “[d]epartment and facility officials told
[the state auditors that] most instances of . . . sexual interactions . . . begin with undue
familiarity.” Thus, we view the incidents of undue familiarity as relevant to the totality of
the circumstances at TCF that may have contributed to the sexual misconduct by Mr.
Gallardo, although standing alone they do not support a finding of Warden Koerner’s
personal involvement in the sexual assault of Ms. Keith.
3) Misconduct by TCF employees generally
The impact of the evidence related to Mr. Gallardo and the maintenance program
becomes more significant when viewed together with facility-wide practices related to
undue familiarity and sexual misconduct. Ms. Keith contends that although TCF policies
expressly prohibited sexual misconduct by employees, Warden Koerner’s actual practices
undermined these formal policies and created an environment where employees engaged
in inappropriate behavior without facing meaningful investigation or discipline.
At the time of Ms. Keith’s assault in 2007, there were multiple formal policies in
place that explicitly prohibited sexual misconduct. KDOC policy IMPP 02-118 forbade
14
any sexual misconduct between employees and inmates. Indeed, the Audit Report
recognized KDOC “ha[d] established policies and procedures designed to protect staff
and inmates.” In addition, effective August 14, 2007, Warden Koerner also enacted
General Order 03-108, a policy specific to TCF, which provided “[e]mployees and
volunteers shall maintain professional bound[a]ries between themselves and inmates at
all times” and reiterated the definitions of undue familiarity and sexual misconduct. By at
least 2005, Warden Koerner also implemented use of a Staff-Offender Relationship
Checklist which “provide[d] inmates a consistent, uniform and non-threatening means to
report inappropriate staff relations involving themselves or other inmates.” And as
discussed above, in 2006, Warden Koerner instituted a policy prohibiting maintenance
staff from working alone with any inmate.
If evidence of these policies had been presented in isolation at summary judgment,
we likely would conclude that Warden Koerner is immune from liability for Mr.
Gallardo’s clear violation of these policies. See Porro v. Barnes, 624 F.3d 1322, 1329
(10th Cir. 2010) (“[T]he county actively sought to protect [the plaintiff’s] rights and it
was (only) [the prison employee’s] improper actions, taken in defiance of county policy,
that caused [the plaintiff]’s injuries.”). But Ms. Keith came forward with additional
evidence supporting a reasonable inference that, in practice, Warden Koerner did not
enforce these policies.
First, Ms. Keith presented evidence that most cases of employee misconduct at
TCF were not seriously investigated. According to the Audit Report, TCF “had far more
investigations related to allegations of sexual misconduct than the other two facilities
15
[audited by the state]. At [TCF], 43 of the 74 investigations were related to sexual
misconduct—that’s 58%. [The other audited facilities] were 9% and 16% respectively.”
In addition, TCF had far more investigations per one hundred employees than the other
two facilities. Per one hundred staff members, TCF initiated 16 investigations for sexual
misconduct and 10.1 for undue familiarity. In comparison, the other audited facilities
reported .7 and 1.6 investigations for sexual misconduct and 4.6 and 5.2 investigations
for undue familiarity, respectively. Although the sheer number of investigations does not
establish Warden Koerner’s personal involvement, Lobozzo v. Colo. Dep’t of Corr., 429
F. App’x 707, 712 (10th Cir. 2011) (unpublished) (“[T]here is no reason to assume the
mere number of incidents is sufficient evidence of an unreasonable response to a
substantial risk in an isolated case.”), Ms. Keith presented evidence that Warden Koerner
failed to reasonably respond in the cases represented by these numbers. See Lopez, 172
F.3d at 759 (“We recognize at the outset that neither prison officials nor municipalities
can absolutely guarantee the safety of their prisoners. They are, however, responsible for
taking reasonable measures to insure the safety of inmates.” (citation omitted)).
In reviewing the evidence related to Warden Koerner’s response to particular
instances of misconduct, it is important to reiterate that most of the previously described
evidence relates to undue familiarity. And there is no claim here that undue familiarity—
even if crude, boorish, inappropriate, and disgusting—violates a prisoner’s constitutional
rights. But Ms. Keith also presented evidence suggesting Warden Koerner condoned
practices that created merely an illusion of investigation into prisoner allegations of
sexual misconduct. To be sure, fact-finding in sexual assault cases is difficult in any
16
setting and more so in the circumstances here. Indeed, the Audit Report acknowledged
that
[l]ack of evidence hampers some investigations. Some situations concern
allegations of inappropriate staff actions, such as inappropriate touching,
sexual misconduct, smuggling contraband, coercion and pat searches. Often
these cases are “he said, she said” in that the only evidence is the statement
of those involved. If there were no witnesses or video, the investigator does
not have much to work with.
Notwithstanding these difficulties, Ms. Keith provided evidence that TCF’s
treatment of sexual-misconduct complaints was significantly less effective than at other
facilities. Specifically, the Audit Report indicates that the majority of investigations at
TCF—60.8%—ended with a conclusion that the claims were “unsubstantiated.” In
contrast, the comparison facilities found claims “unsubstantiated” in only 11.1% and
23.1% of their respective investigations. These numbers could be interpreted as reflecting
a mere inability to resolve complaints that are inherently difficult to prove. And, if that
were the only reasonable inference to be drawn from the evidence, we might conclude
Warden Koerner had satisfied his obligation to “tak[e] reasonable measures to insure the
safety of inmates.” Lopez, 172 F.3d at 759. But Ms. Keith provided additional evidence
that supports at least a reasonable inference that the high number of “unsubstantiated”
claims at TCF may be explained by TCF’s investigation practices.
Warden Koerner explained that an allegation would be deemed unsubstantiated if
an inmate alleged misconduct but the officer denied the allegations and passed a
polygraph test, or where there was no other evidence of the officer’s wrongdoing. In
other words, “[a]n allegation is unsubstantiated when there is no evidence of guilt but no
17
way of disproving it.” Ms. Keith, however, presented evidence that, in every he-said-she-
said situation at TCF, officials accepted the employee’s word over the inmate’s without
further question or investigation. Indeed, Lieutenant Willie Tabor confirmed that while
he worked as an investigating officer at TCF, if a female inmate made an allegation of
misconduct and an employee denied it, all such allegations were deemed
unsubstantiated.3
In describing this evidence, we recognize that prison officials cannot always
determine what has happened when an inmate alleges sexual misconduct. We are not
suggesting that a warden must act as if each prisoner complaint is true. And we are not
suggesting that when a staff member denies the accusation, the warden must take the side
of the prisoner. But serious allegations must be investigated, not rejected simply because
they are denied. Unfortunately, there may be very little to investigate; the only evidence
may be the statements of the prisoner and the staff member. A polygraph test may be a
helpful tool (if not to confirm or reject a statement, at least to encourage truthfulness); but
if polygraph-examiner opinions are not allowed in disciplinary proceedings, imposition
of sanctions may be foreclosed. That does not mean, of course, that nothing can be done.
A series of accusations against the same staff member can be sufficiently compelling to
override the most vehement denials. Or prophylactic measures may be introduced. If
3
Kansas Secretary of Corrections Roger Werholz confirmed “when you balance a
staff member’s word versus an inmate’s word, deference is often given or is expected to
be given to staff over inmates.” But this statement of general practice does not overcome
the specific evidence that TCF universally accepted the officer’s word, even where the
circumstances raised serious questions about the officer’s denial.
18
accusations are sufficiently common, they may warrant installing cameras to keep track
of behavior within the prison. And rules can prohibit conduct that provides an
opportunity for serious infractions. If, for example, a staff member admits that he was
alone with an inmate in a closed storage room but denies assaulting her, the staff member
could be disciplined for exercising bad judgment in being alone with an inmate in such a
setting and, as in this case, the warden could prohibit staff members from being alone
with an inmate.
Our task is to determine whether the warden’s response to an accusation is a
reasonable one or, instead, shows deliberate indifference to whether serious misconduct
is occurring. And even if the initial response was adequate, we must consider whether
later experience demonstrated the need for further action. In short, we must avoid
generalizing about responses to prisoner allegations. Although statistical information
provides some general insight, the reasonableness of the response can only be evaluated
in the context of the specific facts surrounding each allegation.
Here, in addition to the statistical information discussed above, the record on
summary judgment includes evidence of specific instances where TCF officials failed to
fully investigate claims of sexual misconduct.4 Specifically, we rely on testimony from
Warden Koerner, Lt. Tabor, and Chief of Security Joseph Essman, about these incidents.
4
To establish the specific details of individual cases of misconduct, Ms. Keith
relies on a Sexual Assault Information Report (SAI Report) which lists and describes the
sexual complaints made at TCF. At summary judgment, Warden Koerner argued the
report “contain[ed] multiple levels of inadmissible hearsay” because it is a “printout of an
Excel spreadsheet . . . created by Legislative Post Audit staff from information received
from ‘Bob Harrison at KDOC.’” Although the district court stated Ms. Keith “failed to
19
For example, in July 2006, an inmate alleged she and Officer Bradley Templeton
engaged in oral sex and intercourse. She passed a polygraph and he refused to take one.
As a result, the investigation was closed as unsubstantiated. When asked why this
incident was designated unsubstantiated despite the polygraph results, Lt. Tabor testified
“[t]here was no evidence” because he did not consider the inmate’s passing of a
polygraph as evidence that would warrant further investigation. A couple of weeks later,
Officer Templeton again faced allegations that he had engaged in a sexual relationship
with a different inmate. This time a polygraph was scheduled for Officer Templeton, but
he resigned and did not take it. After the incidents with Officer Templeton, TCF ceased
administering polygraphs to inmates, allegedly based on concerns about deterring reports
of misconduct.
It is true that Officer Templeton resigned without taking a polygraph with respect
to either incident and denied the inmates’ allegations. Nevertheless, the facts raise a
reasonable inference that full investigation of the first complaint may have resulted in
meaningful discipline and prevented further incidents involving Officer Templeton. A
reasonable fact finder could also infer that sexual misconduct generally would not be
adduce any admissible evidence that any prison employee continued working at TCF
during [Warden] Koerner’s time as warden after a claim of sexual misconduct was
substantiated,” the district court did not explicitly reach a conclusion on the admissibility
of the SAI Report in particular. We need not decide the admissibility of the SAI Report
here because several witnesses testified about particular incidents reflected in the report,
and neither party has challenged the admissibility of such testimony. We therefore
discuss only those incidents supported by witness testimony in the record.
20
effectively deterred where an officer’s unsubstantiated denial is accepted without further
inquiry over a prisoner’s polygraph-supported allegations.
Ms. Keith also presented evidence of an earlier incident in March 2005, when an
inmate alleged Officer Jared Bohn touched her vagina and kissed her. Officer Bohn
denied the allegations but failed a polygraph. No further investigation followed and the
incident was listed as unsubstantiated. Nevertheless, Officer Bohn received a five-day
suspension for his involvement in the incident. He was later terminated after developing a
personal relationship with another inmate. This evidence is particularly troubling as it
shows a failure by Warden Koerner to adequately investigate the allegations or to
discipline Officer Bohn despite a failed polygraph.
This evidence presented at summary judgment supports an inference that even
when a claim of sexual misconduct was supported by corroborating evidence, Warden
Koerner failed to impose meaningful discipline. Warden Koerner testified about his
general disciplinary practices and explained that, for cases of undue familiarity,
subordinate supervisors had authority to handle discipline informally, and he generally
was not aware of such actions. In situations involving substantiated allegations of sexual
misconduct, Warden Koerner generally terminated the employee but may have
suspended, counseled, or reprimanded the employee depending on the circumstances. But
under the circumstances involving Officer Bohn—a failed polygraph—his five-day
suspension evidences Warden Koerner’s failure to implement and enforce policies that
may have prevented the sexual assault by Mr. Gallardo.
21
Although there is no evidence that an employee continued working at TCF after a
substantiated incident of sexual misconduct, the Audit Report concluded TCF “was more
inconsistent and lenient in response to staff misconduct situations, especially in cases of
undue familiarity.” To support this statement, the Audit Report identifies the following
examples: one employee received a letter of reprimand for hugging an inmate, while
another was merely counseled when found in an office alone with an inmate with the
door closed and the lights out. In a different instance, the warden recommended dismissal
when an employee gave a former inmate a bike, but the Civil Service Board amended the
dismissal to a suspension, “citing inconsistent disciplinary measures and specifically . . .
cases where employees’ actions appeared to be much more egregious, yet those
employees received less stringent disciplinary action.”
And Warden Koerner “reduced punishment for several employees he determined
were ‘salvageable’ or who had shown sufficient remorse.” The Audit Report gives three
examples: (1) Warden Koerner reduced discipline from termination to a thirty-day
suspension for an employee who allegedly accepted responsibility and showed remorse
after distributing confidential information about male inmates to the female inmates
under that employee’s supervision; (2) Warden Koerner imposed a ten-day suspension
for an employee who in his third incident of undue familiarity caressed an inmate’s ear
and hung a sex toy from the ceiling; (3) Warden Koerner amended discipline from
termination to demotion and a thirty-day suspension where the employee showed remorse
for having an inappropriate relationship. Again, this evidence supports at least an
inference that Warden Koerner failed to punish employee misconduct consistently.
22
Although the Constitution does not require a wooden system of punishment that
ignores an offender’s remorse, his or her track record, or the severity of the offense,
looking at the totality of the circumstances at TCF—particularly the lax response to
Officer Bohn’s failed polygraph in response to allegations of sexual assault—and
viewing the evidence in the light most favorable to Ms. Keith, a reasonable jury could
infer that Warden Koerner’s practices created an atmosphere where employees,
particularly maintenance employees, faced minimal supervision and little threat of
investigation or discipline for inappropriate sexual behavior with inmates. Although TCF
had formal policies prohibiting sexual misconduct, the evidence raises questions about
whether those policies were being followed or enforced. Despite facing a higher number
of allegations of sexual misconduct and undue familiarity than similar facilities, Warden
Koerner’s most common response was to deem the allegations unsubstantiated whenever
the employee denied them. In turn, even when breach of polices designed to protect
inmates from undue familiarity and sexual misconduct was independently corroborated,
discipline was lax.
Considering the evidence as a whole, a jury could reasonably infer that Warden
Koerner was personally involved in failing to enforce policies in a way that allowed
sexual misconduct to occur at TCF. See Tafoya v. Salazar, 516 F.3d 912, 920 (10th Cir.
2008) (recognizing several failures by the defendant sheriff but finding “perhaps most
troubling” his failure to implement an adequate grievance procedure including “serious
investigation and response”).
23
b. Causation
The second element of the “affirmative link” between a supervisor and an alleged
constitutional deprivation requires proof of causation. “A plaintiff must establish the
‘requisite causal connection’ by showing ‘the defendant set in motion a series of events
that the defendant knew or reasonably should have known would cause others to deprive
the plaintiff of her constitutional rights.’” Schneider, 717 F.3d at 768 (quoting Dodds,
614 F.3d at 1195–96). Warden Koerner maintains Ms. Keith cannot prove causation
because she caused her own injury—specifically, “[Ms.] Keith would not have been put
in a situation to be taken advantage of by [Mr.] Gallardo if she had not agreed to remove
herself from the standard protections of the other officers, inmates, and security cameras
and seclude herself with someone she knew or should have known to be a criminal.” We
find no basis for this argument, either in the facts or the applicable law.
First, Warden Koerner provides no support for the assertion that Ms. Keith should
have known Mr. Gallardo would assault her. Even if Ms. Keith consented to the initial
sexual encounter with Mr. Gallardo, Warden Koerner does not dispute Ms. Keith’s
version of events or her allegations that she did not consent to intercourse with Mr.
Gallardo. In the summary judgment proceedings before the district court, Warden
Koerner argued he could not be liable because Ms. Keith consented to the encounter with
Mr. Gallardo, but the district court rejected this argument because it found evidence that
“present[ed] a triable issue of fact about consent.” But on appeal, Warden Koerner does
not reassert his consent argument. Accordingly, we find no basis for the implication that
24
Ms. Keith somehow caused the sexual assault by Mr. Gallardo by agreeing to some
sexual activity.
Moreover, we have held that a supervising official’s management actions may be
sufficient to establish causation. In Tafoya, the defendant-sheriff argued that, even if his
management decisions established his personal involvement in the constitutional
violation, those decisions did not proximately cause his subordinate officer to sexually
assault the plaintiff. 516 F.3d at 922. We disagreed, concluding that “acts or deficiencies
that result in a jail atmosphere in which discipline and supervision is entirely lacking,
may be sufficiently related to a particular instance of assault that a jury is permitted to
conclude that the conditions proximately caused the assault.” Id.
As explained above, a jury question exists as to whether Warden Koerner was
personally involved in the violation of Ms. Keith’s rights based on his responses to sexual
misconduct and his other management practices. With respect to causation, the Audit
Report stated, “[F]acility officials should have recognized certain red flags and acted on
them. Doing so likely would have prevented the incidents from occurring.” Under
Tafoya, the jury should be permitted to consider whether Warden Koerner’s practices
created an atmosphere that proximately caused Ms. Keith’s injury.
c. State of mind
Finally, to establish the third prong of the constitutional-violation analysis—
culpable state of mind—a § 1983 plaintiff alleging an Eighth Amendment violation must
prove that the defendant acted with deliberate indifference. Id. at 916. “The standard is
subjective, requiring that the official actually be ‘aware of facts from which the inference
25
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To satisfy this
standard, the plaintiff must produce “evidence showing that the defendant knowingly
created a substantial risk of constitutional injury.” Schneider, 717 F.3d at 769 (internal
quotation marks omitted). Inaction, in certain instances, can be enough—“a local
government policymaker is deliberately indifferent when he deliberately or consciously
fails to act when presented with an obvious risk of constitutional harm which will almost
inevitably result in constitutional injury of the type experienced by the plaintiff.” Id. at
769 (citation omitted). But “even if a prison official has knowledge of a substantial risk
of serious harm to inmates, he is not deliberately indifferent to that risk unless he is aware
of and fails to take reasonable steps to alleviate that risk.” Tafoya, 516 F.3d at 916. In
identifying the relevant risk, we do not focus on the risk to a specific inmate by a specific
employee; we instead analyze whether the combined circumstances created a risk for
inmates in the plaintiff’s situation. See Farmer, 511 U.S. at 843 (“[I]t does not matter
whether the risk comes from a single source or multiple sources, any more than it matters
whether a prisoner faces an excessive risk of attack for reasons personal to him or
because all prisoners in his situation face such a risk.”).
In Gonzales v. Martinez, where two corrections officers sexually assaulted the
plaintiff-inmates, we concluded there was sufficient evidence of deliberate indifference
by the sheriff because it could be “fairly inferred” that his “purported ignorance of the
dangerous conditions in the jail was a direct result of his lackadaisical attitude toward his
responsibility to run the institution.” 403 F.3d at 1187. Specifically, the evidence showed
26
the sheriff’s investigating officer did not want to investigate claims, the sheriff
consistently ignored complaints because he discredited inmates’ allegations, and the
sheriff left the two plaintiffs under the supervision of the very men who had assaulted
them in the first place. Id. In addition, the sheriff knew of a “documented lapse of
security” and knew about complaints of sexual harassment and intimidation throughout
the jail. Id. We concluded these facts raised a reasonable inference that the sheriff
disregarded an excessive risk to the plaintiffs. Id.
The same sheriff was again sued in Tafoya, but even after facing suit in Gonzales,
the sheriff “made only minimal efforts to address the glaring safety problems at the jail.”
See Tafoya, 516 F.3d at 918. His efforts included a “no-contact” policy, installation of
new surveillance cameras, hiring additional female staff, and providing a half-day
training regarding sexual contact between staff and inmates. Id. But the evidence also
showed the sheriff made no effort to alter his “lackadaisical” managerial style; he did not
impose serious threats of discipline for policy violations; he enforced the no-contact
policy only infrequently; he continued to employ officers with known criminal records;
and he eliminated the jail’s grievance system because there were “too many complaints.”
Id. at 918–21. We explained that even with policies in place to respond to misconduct,
such policies may be “empty gesture[s] without corresponding supervision and a
legitimate threat of discipline for infractions.” Id. at 919. We therefore concluded “[t]he
knowing failure to enforce policies necessary to the safety of inmates may rise to the
level of deliberate indifference.” Id.
27
Based on the evidence presented thus far, Warden Koerner’s failure to act is less
egregious than the sheriff’s lackadaisical behavior in Gonzales and Tafoya. Nevertheless,
Ms. Keith has presented sufficient evidence to create a jury question about whether
Warden Koerner failed to take reasonable steps to alleviate known risks within TCF. It is
undisputed that Warden Koerner implemented policies to address undue familiarity and
sexual misconduct, but as in Tafoya, there is at least a reasonable inference that there was
no corresponding supervision or meaningful threat of discipline. Although Warden
Koerner expressed concern about the ongoing problems with undue familiarity and
sexual misconduct, he did not credit inmates’ testimony when they raised allegations
against an employee. Rather, he presumptively accepted his employees’ word and
designated most claims as unsubstantiated. Indeed, Ms. Keith presented evidence that he
endorsed a policy that weighed employee testimony more favorably than an inmate’s,
even when the employee refused to take a polygraph and the inmate’s polygraph results
corroborated her allegations. And when Officer Bohn failed a polygraph administered in
the face of allegations of sexual misconduct, there was no further investigation and the
punishment imposed was a mere five-day suspension.
Viewing this evidence together with the high volume of complaints at TCF, the
multiple complaints against individual employees, and the lackluster response to such
complaints, we conclude Ms. Keith has demonstrated a genuine issue of material fact
about whether Warden Koerner acted with deliberate indifference to the risk of sexual
misconduct by his employees. Cf. Hovater, 1 F.3d at 1064, 1068 (holding sheriff was
entitled to qualified immunity where he had no knowledge that officer was a threat to
28
female inmates in part because “no female inmate had complained of sexual misconduct
by [the officer in question] or any other detention officer”). At trial, Warden Koerner may
introduce evidence to rebut any inference of knowledge or to show his actions were
reasonable under the circumstances, Farmer, 511 U.S. at 844, but the weighing of such
evidence is the jury’s role, not ours, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
In summary, Ms. Keith has presented sufficient evidence to establish Warden
Koerner’s personal involvement, causation, and state of mind, as necessary to present her
constitutional violation to a jury. Viewing the circumstances at TCF as a whole, there is
sufficient evidence from which a reasonable jury could infer that Warden Koerner was
aware of but failed to address a substantial risk that his employees would engage in
sexual misconduct and thereby harm TCF inmates, including Ms. Keith.
2. Clearly Established Law
In addition to establishing a constitutional violation by Warden Koerner, Ms.
Keith also had the burden at summary judgment to show that her constitutional right was
clearly established. Thomson, 584 F.3d at 1312. As we stated in our previous decision in
this case, “it is clearly established that a prison official’s deliberate indifference to sexual
abuse by prison employees violates the Eighth Amendment.” Keith v. Koerner (Keith I),
707 F.3d 1185, 1188 (10th Cir. 2013). We have further concluded “an inmate has a
constitutional right to be secure in her bodily integrity and free from attack by prison
guards,” and “a prison official’s failure to protect an inmate from a known harm may
constitute a constitutional violation.” Hovater, 1 F.3d at 1068. In other words, “prison
29
officials . . . must ‘take reasonable measures to guarantee the safety of inmates.’”
Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). And
we have held that such “reasonable measures” include “serious investigation and
response” when a prison official becomes aware of a risk to inmates, including sexual
misconduct by prison employees. See Tafoya, 516 F.3d at 920. Thus, at the time of the
constitutional violation in October 2007, it was clearly established that Ms. Keith not
only had a right to be free from attack by Mr. Gallardo, she also had a constitutional right
to expect reasonable protection from TCF officials such as Warden Koerner and a
reasonable response when sexual misconduct occurred.
And Ms. Keith presented sufficient evidence that these clearly established rights
were violated. She presented evidence of inappropriate behavior by Mr. Gallardo,
systemic problems within the maintenance program, and misconduct throughout the
facility. To be sure, the misconduct fell along a broad spectrum, ranging from undue
familiarity to confirmed sexual assault. But we must consider the totality of the
circumstances, including all instances of employee misconduct. Moreover, we must
consider the evidence of limited investigation and lax discipline for both undue
familiarity and sexual misconduct, evidence which supports an inference that a culture
existed where TCF employees faced no real consequences for misconduct. Importantly,
the evidence includes the inadequate investigation of the sexual misconduct allegations
against Officers Bohn and Templeton, and the slack discipline imposed on Officer Bohn.
In other words, viewing the evidence as a whole, a reasonable jury could conclude
that Warden Koerner created an atmosphere where policies were honored only in the
30
breach, and, as a result, he failed to take reasonable measures to ensure inmates were safe
from the risk of sexual misconduct by TCF employees. Because Ms. Keith possessed a
clearly established constitutional right and presented evidence of a constitutional
violation by Warden Koerner, summary judgment was inappropriate on qualified-
immunity grounds.
B. Statute of Limitations
As an alternative basis to affirm, Warden Koerner asserts that Ms. Keith filed her
claim outside the statute of limitations and failed to establish the applicability of the
statutory tolling provision. The district court denied Warden Koerner’s motion for
summary judgment on this basis. We review this order de novo. Howard v. Waide, 534
F.3d 1227, 1235 (10th Cir. 2008).
“No statute of limitations is expressly provided for civil rights claims brought
under section 1983.” Garcia v. Wilson, 731 F.2d 640, 642 (10th Cir. 1984). Accordingly,
we look to state law to determine the applicable limitations period. Id. In doing so, we
have held “that every section 1983 claim is in essence an action for injury to personal
rights” and therefore apply the statute of limitations for personal injury actions in the
state where the claim accrued. Id. at 651; see also Pfeiffer v. Hartford Fire Ins. Co., 929
F.2d 1484, 1493 (10th Cir. 1991) (“[W]e held in Garcia . . . that every claim under 42
U.S.C. § 1983 is a claim for injury to personal rights governed by the relevant statute of
limitations for the state in which the claim accrued.” (internal quotation marks omitted)).
Applying this rule here, the statute of limitations for Ms. Keith’s claim is two years. Kan.
Stat. Ann. § 60-513(a)(4); see also Cameron v. Stotts, 43 F.3d 1482, at *1 (10th Cir.
31
1994) (unpublished) (“The two-year statute of limitations for injuries to the rights of
others, Kan. Stat. Ann. 60-513(a)(4), applies to civil rights actions brought pursuant to
section 1983.”).
Ms. Keith’s cause of action arose on October 2, 2007, the date of the sexual
assault by Mr. Gallardo. But Ms. Keith did not file her complaint until May 17, 2011,
three years and seven months after the incident. Ms. Keith does not dispute this timeline.
She instead contends the statute of limitations was tolled during the time she was
incarcerated at TCF. Under Kan. Stat. Ann. § 60-515(a), a person “imprisoned for a term
less than such person’s natural life” is entitled to bring an action within one year after
being released from custody. Ms. Keith was released from TCF on May 18, 2010, and
filed her complaint within the year, on May 17, 2011. She therefore maintains she timely
filed her complaint.
But section 60-515(a) does not apply to an incarcerated person who “has access to
the court for purposes of bringing an action.” See also Parker v. Bruce, 109 F. App’x
317, 319 (10th Cir. 2004) (unpublished) (“[T]he Kansas legislature has expressly
instructed that any inmate who has access to the court is not entitled to any tolling of the
limitation period.”). Accordingly, we are left with the question of whether Ms. Keith had
access to the court such that the tolling provision did not apply to save her claim.
Warden Koerner relies on the following undisputed facts to argue that Ms. Keith
had the requisite access: (1) in January and September 2007, before her encounter with
Mr. Gallardo, Ms. Keith filed two motions in the Kansas state court criminal case that led
to her incarceration at TCF; (2) in 2008, Ms. Keith filed a motion in a case related to
32
custody of her son; (3) in 2009, Ms. Keith filed motions and was represented by a public
defender in two criminal cases filed concurrently in Kansas and Missouri; (4) Ms. Keith
attended court proceedings at least twice while incarcerated at TCF; and (5) Ms. Keith
had access to a law library at TCF.
We agree with the district court “that a reasonable jury might find these facts
persuasive” and might agree with Warden Koerner’s position. And, as a matter of law, if
this evidence were considered in isolation, it may have established sufficient access to the
courts. See, e.g., Cameron, 43 F.3d at *1 (“Mr. Cameron contends that his claim for
alleged constitutional violations . . . is not time-barred because the statute of limitations is
tolled pursuant to section 60-515(a). He argues that administrative segregation denies him
access to the courts. We are not persuaded. The very filing of this claim undermines his
argument.”); Williams v. Olathe, Kan. Police Dep’t, 945 F.2d 412, at *2 (10th Cir. 1991)
(unpublished) (holding plaintiff had access to the court as of the date he filed a complaint
in an unrelated case while incarcerated); Ventris v. Kansas, No. 11-3013-SAC, 2012 WL
4933324, at *7 (D. Kan. Oct. 16, 2012) (unpublished) (holding that tolling provision did
not apply where plaintiff had access to a law library and filed documents, thus
“illustrating his access to the courts”); Brown v. Gray, No. 06-3003-JTM, 2011 WL
1097766, at *4 (D. Kan. Mar. 22, 2011) (“Plaintiff was able to file suit to bring this
action and he has filed several other motions and documents during the course of this
litigation. His ability to file suit and to file pleadings with this court dooms his legal
disability argument.”).
33
But Ms. Keith presented additional evidence that creates a genuine dispute of
material fact about her ability to access the courts. In particular, when TCF began its
internal investigation, the investigator had Ms. Keith sign a Confidentiality Agreement in
which she agreed “not to discuss or divulge any information” provided in the
investigation against Mr. Gallardo. The Confidentiality Agreement further provided that
“a breach of confidentiality can result in disciplinary action.” Ms. Keith “was under the
impression that [she] would be bound by this form as long as [she] was incarcerated” and
that during her incarceration she would be “in trouble for speaking about [the assault by
Mr. Gallardo].” She also described the fear she felt at TCF, related to potential
disciplinary action or other retaliation if she discussed the assault.
Warden Koerner maintains the significance of the Confidentiality Agreement is
undermined by Ms. Keith’s participation in court proceedings as outlined above, and by
her other conduct while incarcerated at TCF. Specifically, in August 2009, Ms. Keith met
with an attorney who requested a meeting and brought a reporter with him, whom the
attorney identified as a legal assistant. Ms. Keith discussed the sexual assault with these
two men. Ms. Keith also told her father about the assault when he visited her at TCF.
Then, in October 2009, Ms. Keith filed a formal grievance with KDOC related to the
assault by Mr. Gallardo. Warden Koerner maintains these facts belie Ms. Keith’s position
that the Confidentiality Agreement restricted her from disclosing the sexual assault, and
with these facts, no reasonable jury could conclude Ms. Keith lacked access to the court.
While we agree that these facts may prove problematic for Ms. Keith and may damage
her credibility, “[c]redibility determinations, the weighing of the evidence, and the
34
drawing of legitimate inferences from the facts are jury functions, not those of a judge”
when “ruling on a motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Rather, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [her] favor.” Id.
Applying this standard here, we find it significant that Ms. Keith signed the
Confidentiality Agreement in which she contractually agreed not to speak about the
sexual assault by Mr. Gallardo. Warden Koerner has not presented evidence that anyone
at TCF rescinded the Confidentiality Agreement in a way that allowed Ms. Keith to
freely file a § 1983 claim while incarcerated at TCF. Moreover, Ms. Keith provided
testimony explaining that she subjectively feared retaliation from inmates and TCF
administration if she were to file a claim. Viewing these facts in the light most favorable
to Ms. Keith, there is a triable issue about whether Ms. Keith lacked access to the courts
and therefore, a triable issue as to whether her claim is barred by the statute of
limitations.
III. CONCLUSION
For the above reasons, we REVERSE the grant of summary judgment in favor of
Warden Koerner on qualified immunity grounds and AFFIRM the denial of summary
judgment on the statute of limitations. We therefore REMAND for further proceedings
consistent with this decision.
35