Samantha Vazquez v. County of Kern

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMANTHA VAZQUEZ, Nos. 18-15060
Plaintiff-Appellant, 18-15671
v. D.C. No.
1:16-cv-01469-JLT
COUNTY OF KERN; HEATHE
APPLETON; GEORGE ANDERSON,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding
Argued and Submitted July 16, 2019
San Francisco, California
Filed January 31, 2020
Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and Paul C. Huck, * District Judge.
Opinion by Judge Paez
*
The Honorable Paul C. Huck, United States District Judge for the
U.S. District Court for Southern Florida, sitting by designation.
2 VAZQUEZ V. COUNTY OF KERN
SUMMARY **
Prisoner Civil Rights
The panel reversed the district court’s summary
judgment in favor of defendants in an action brought
pursuant to 42 U.S.C. § 1983 alleging that a Juvenile
Corrections Officer violated plaintiff’s constitutional rights
when he made sexual comments to her, groomed her for
sexual abuse, and looked at her inappropriately while she
was showering.
The panel held that, viewing the facts in the light most
favorable to plaintiff and drawing all reasonable inferences
in her favor, she had presented sufficient facts to establish a
violation of her right to bodily privacy, right to bodily
integrity, and right to be free from punishment as guaranteed
by the Fourteenth Amendment. Thus, the panel held that
the Corrections Officer violated plaintiff’s right to privacy
under the Fourteenth Amendment when he allegedly
watched her shower multiple times. Additionally, a jury
could find that the Officer’s alleged conduct, which included
touching plaintiff’s face and shoulders without her consent,
talking about her appearance in her shower gown, and telling
her about a sexual dream, violated plaintiff’s Fourteenth
Amendment right to bodily integrity. Finally, the panel held
that plaintiff asserted facts from which a jury could find that
the Officer violated plaintiff’s right to be free from
punishment because she alleged that the Officer’s conduct
caused her harm outside of the inherent discomforts of
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VAZQUEZ V. COUNTY OF KERN 3
confinement and did not serve a legitimate governmental
objective. The panel held that the Officer was not entitled to
qualified immunity.
The panel held that a jury could find that the Officer’s
supervisor knew or reasonably should have known of the
violations and failed to act to prevent them. Thus, viewing
the evidence in the light most favorable to plaintiff and
making all justifiable inferences in her favor, the panel held
that the district court erred when it concluded there was no
evidence supporting a causal link between the supervisor’s
conduct and the Officer’s alleged violation of plaintiff’s
constitutional rights.
In addition to reversing the summary judgment in favor
of the individual defendants, the panel also vacated the
district court’s judgment for Kern County and the district
court’s order awarding costs.
COUNSEL
Thomas C. Seabaugh (argued), The Law Office of Thomas
C. Seabaugh, Los Angeles, California; Paul Hoffman,
Schonbrun Desimone Seplow Harris & Hoffman LLP,
Hermosa Beach, California; David K. Cohn, Chain Cohn
Stiles, Bakersfield, California; for Plaintiff-Appellant.
Kathleen Sarah Rivera (argued), Deputy County Counsel;
Mark L. Nations, County Counsel; Office of the Kern
County Counsel, Bakersfield, California; for Defendants-
Appellees County of Kern and Heathe Appleton.
4 VAZQUEZ V. COUNTY OF KERN
James D. Weakley (argued) and Ashley N. Torres, Weakley
and Arendt PC, Fresno, California; for Defendant-Appellee
George Anderson.
Ian M. Kysel (argued) and Amanda Goad, ACLU
Foundation of Southern California, Santa Ana, California,
for Amicus Curiae ACLU of Southern California.
OPINION
PAEZ, Circuit Judge:
In January 2015, Samantha Vazquez was arrested on an
outstanding warrant and taken to Kern County Juvenile Hall.
Vazquez argues that while in custody at the hall, a Juvenile
Corrections Officer, George Anderson, made sexual
comments to her, groomed her for sexual abuse, and looked
at her inappropriately while she was showering.
Vazquez filed this action against Anderson, his
supervisor, Heathe Appleton, and the County of Kern (“Kern
County”). She brought claims under 42 U.S.C. § 1983,
alleging that Anderson’s conduct violated her constitutional
rights. She also alleged claims against Kern County and
Appleton for municipal and supervisory liability. The
district court ultimately granted Anderson’s and Appleton’s
motions for summary judgment. 1 We have jurisdiction
under 28 U.S.C. § 1291, and we reverse and remand.
1
After issuing the orders granting the motions for summary
judgment filed by Anderson and Appleton, the district court issued an
order to show cause whether Vazquez could maintain this action against
Kern County considering the summary judgment rulings. Vazquez
VAZQUEZ V. COUNTY OF KERN 5
BACKGROUND
Vazquez entered Kern County Juvenile Hall in January
2015. She was housed in Unit 300A, an all-female unit,
where Anderson worked. Juvenile hall staff frequently
placed wards on work “details,” including laundry, kitchen,
and clean-up.
Vazquez contends that Anderson purposefully selected
her to work “details” with him. During her deposition,
Vazquez testified that Anderson said inappropriate things to
her such as calling her “babe” and telling her she had a “big
butt” in the juvenile hall pants. Vazquez also testified that
Anderson “grabbed [her] face,” “touched [her] shoulders,”
and talked with her about her shower gown.
In her testimony, Vazquez described one specific
incident where she was working a “detail” with Anderson
and he told her about a dream he had about her that was
“rated R.” She testified that he told her to shut the door and
then told her the details of the dream including that, in the
dream, she “grabbed him by his t-shirt,” “gave him a kiss”
and “after that [they] ended up going to a room and, like,
having fun and stuff.” After that, she testified that he told
her “to get close to him, like, to the point where he had
opened his knees and [she] was right in the middle of him,
and [he] told [her] that he wanted his dream to come true.”
Vazquez testified that she moved away from him after and
felt “really really awkward.”
responded and while preserving her right to appeal, agreed that the action
could not be maintained against Kern County in light of the district
court’s rulings. The district court then dismissed the action against Kern
County and entered judgment in favor of all defendants.
6 VAZQUEZ V. COUNTY OF KERN
Vazquez also alleged that Anderson would tell her which
shower stalls to use and that he looked at her inappropriately
while she was showering on three or four occasions. She
testified that she caught him staring at her in the shower
when he was standing at the staff counter and that she tried
to cover herself up. 2 She also testified that Anderson told
her he had seen her in the shower, and that she should leave
her boyfriend and “find someone better like him.”
Vazquez first reported her allegations to substance abuse
specialist Francisco Maldonado. Maldonado testified that
when Vazquez made the allegations he felt she was being
truthful. Maldonado reported the allegations and Kern
County opened an investigation into Vazquez’s complaints
that same day.
The investigation was led by Shaun Romans and lasted
approximately eight months. Romans interviewed fifty-five
people and reviewed three interviews conducted by the
Bakersfield Police Department. When questioned about the
allegations against Anderson, Romans testified that in his
investigative opinion, he “leaned toward them being true,
toward the belief that it was more likely than not that they
were true.” The allegations were also sustained by the
disciplinary review board at the probation department. Kern
County then began the process of terminating Anderson’s
employment.
Anderson testified that he selected Vazquez to work with
him once or twice and that “maybe once” they had been
alone in a room together for twenty minutes. He testified
2
The record reflects that a person sitting at the staff counter in Unit
300A could look into at least one of the shower stalls through a gap in
the shower curtains.
VAZQUEZ V. COUNTY OF KERN 7
that he selected Vazquez because she was a gang member
who supplied him with useful gang intelligence and because
she was a good worker. He contended that Vazquez told him
about her boyfriend, who was a gang member, and told him
that she had hidden some of her boyfriend’s guns at her
house. Anderson also testified that he remained at the staff
counter while Vazquez showered on one or two occasions,
but that he was never told that he could not sit at the staff
counter while female wards showered.
Several staff members testified that they observed
Anderson alone with female wards, including Vazquez.
Another staff member testified that she observed Anderson
sitting at the staff counter while female wards showered.
Shay Molennor, Director of Kern County Juvenile Hall,
testified that at the time of Vazquez’s allegations, Kern
County had policies in place at the juvenile hall to prevent
or deter sexual abuse of wards. She further testified that
certain standards in place at the time implemented the Prison
Rape Elimination Act (PREA). See 34 U.S.C. §§ 30301–
30309 (2017); 28 C.F.R. §§ 115.11–115.16.
Moreover, Molennor testified that Section 1425 of the
Juvenile Hall Basic Staff Rules, which were in effect at the
time of the allegations, stated: “Staff members are not
permitted alone in the rooms with minors of the opposite
gender except during an emergency. For security purposes,
staff should avoid being alone with any minor in their room.”
She testified that the Juvenile Hall Administrative Manual
required supervision of the showers to be provided by staff
of the same gender as the youth and that “except in exigent
circumstances or incidental to a routine youth safety check
the youth will be permitted to shower, perform bodily
functions, and change clothing without nonmedical staff of
8 VAZQUEZ V. COUNTY OF KERN
the opposite gender viewing their breasts, buttocks, or
genitalia.”
STANDARD OR REVIEW
We review de novo a district court’s “grant of summary
judgment.” Branch Banking & Tr. Co. v. D.M.S.I., LLC,
871 F.3d 751, 759 (9th Cir. 2017). “We must determine,
viewing the evidence in the light most favorable to the
nonmoving party and drawing all justifiable inferences in its
favor, whether there are any genuine issues of material fact
and whether the moving party is entitled to judgment as a
matter of law.” Orr v. Bank of Am., NT & SA, 285 F.3d 764,
772 (9th Cir. 2002).
We review de novo a district court’s decision on
qualified immunity. Entler v. Gregoire, 872 F.3d 1031,
1038 (9th Cir. 2017). We review for abuse of discretion a
district court’s award of costs. Draper v. Rosario, 836 F.3d
1072, 1087 (9th Cir. 2016).
DISCUSSION
On appeal, Vazquez challenges the district court’s orders
granting Anderson’s motion for summary judgment,
Appleton’s motion for summary judgment on Vazquez’s
supervisory liability claim, and the district court order
awarding costs.
I. Anderson’s Motion for Summary Judgment
The district court granted Anderson’s motion for
summary judgment of Vazquez’s claims to the extent they
were based on sexual abuse or a violation of Vazquez’s right
to privacy. First, Anderson argued that even if Vazquez’s
sexual abuse allegations were true, his alleged conduct did
VAZQUEZ V. COUNTY OF KERN 9
not violate her constitutional rights. The district court
agreed, concluding that it could not find “harm of
constitutional proportions” regarding the sexual abuse claim.
Second, regarding the privacy claim, the district court
acknowledged there was a “dispute regarding whether—and
to what extent—Anderson watched [Vazquez] in the
shower.” Taking the facts in the light most favorable to
Vazquez, the district court concluded that Anderson’s
alleged conduct was not sufficiently frequent to violate
Vazquez’s right to privacy. Finally, the district court
proceeded to conclude that even assuming Anderson’s
conduct rose to the level of a constitutional violation, he was
entitled to qualified immunity.
We disagree. We hold that, viewing the facts in the light
most favorable to Vazquez and drawing all reasonable
inferences in her favor, she has presented sufficient facts to
establish a violation of her right to bodily privacy, right to
bodily integrity, and right to be free from punishment as
guaranteed by the Fourteenth Amendment. We also hold
that Anderson is not entitled to qualified immunity.
A. Fourteenth Amendment Right to Bodily Privacy
“The right to bodily privacy [under the Fourteenth
Amendment] was established in this circuit in 1963.”
Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th Cir.
1992) (citing York v. Story, 324 F.2d 450 (9th Cir. 1963)). 3
3
In York, the female plaintiff alleged that after she went to the police
department to report an assault, a male officer took and later distributed
photographs of her in nude positions that did not depict her injuries and
were not made for any lawful or legitimate purpose. 234 F.2d at 452.
We “relied upon the [F]ourteenth Amendment as the source of the
woman’s protection, reasoning that the security of one’s privacy against
10 VAZQUEZ V. COUNTY OF KERN
We extended “this right to prison inmates in 1985,” id.
(citation omitted), and we have held that a pretrial detainee
has “at least the same right to bodily privacy as a prisoner,”
Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923
(9th Cir. 2017).
In Grummett, we considered a class action asserting that
a “policy and practice of allowing female correctional
officers to view male inmates in states of partial or total
nudity while dressing, showering, being stripped searched,
or using toilet facilities violated [the inmates’] rights of
privacy guaranteed by the United States Constitution.”
779 F.2d at 492. In our analysis, we noted that female
guards were “not assigned to positions requiring unrestricted
and frequent surveillance”; female guards routinely walked
past cells, but did not stop for prolonged inspection; female
guards did not accompany male inmates to the showers; and
“females [were] assigned to the more distant gunrail
position, overlooking showers, where . . . the surveillance
[was] obscured.” Id. at 494–95. From these circumstances,
we concluded that “the inmates have not demonstrated that
these restricted observations by members of the opposite sex
are so degrading as to require intervention by this court.” Id.
at 494.
arbitrary intrusion by the police is basic to a free society and therefore
‘implicit in the concept of ordered liberty’ under the due process clause.”
Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985) (quoting York,
234 F.2d at 455). “We held that the plaintiff had stated a privacy claim
under the [F]ourteenth [A]mendment because we could not conceive of
a more basic subject of privacy than the naked body. Id. (citation
omitted). We noted that “[t]he desire to shield one’s unclothed figure
from [the] view of strangers, and particularly strangers of the opposite
sex, is impelled by elementary self-respect and personal dignity.” Id.
(internal quotation marks and citation omitted).
VAZQUEZ V. COUNTY OF KERN 11
Similarly, in Sepulveda, we considered the claim of a
female parolee who alleged that a male officer entered the
restroom while she was providing a urine sample for drug
tests. 967 F.2d at 1415. The female parolee objected to his
presence and asked him to leave, but the male officer
laughed at her and remained in the restroom. Id. We
affirmed the district court’s order that the officer was not
entitled to summary judgment on the basis of qualified
immunity, concluding that the plaintiff’s “experience was far
more degrading . . . than the situation faced by the inmates
in Grummett.” Id. at 1415–16. We pointed out that, unlike
in Grummett, the defendant’s view of the parolee was
“neither obscured nor distant.” Id.
Here, Vazquez contends that Anderson violated her right
to privacy under the Fourteenth Amendment when he
allegedly watched her shower multiple times and on one
occasion looked into her room when her privacy sign was
up. 4 First, Anderson concedes that “[t]he right to not be
viewed naked by members of the opposite sex is protected
under the Constitution,” but contends that “there is a
compelling state interest for the safety and security of the
juvenile detention facility for the guards to be present (in a
separate room and behind a computer desk during the wards’
shower time.)” 5
Anderson’s argument that there is a compelling state
interest for his alleged actions is not persuasive as there is
4
Indeed, Vazquez testified that Anderson told her he had seen her
in the shower.
5
“[W]hen a prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see also
Byrd, 845 F.3d at 923.
12 VAZQUEZ V. COUNTY OF KERN
evidence in the record that his actions, at least with respect
to the shower allegations, were against institution policy.
See Byrd, 845 F.3d at 924 (noting that the fact that the
challenged observation violated the prison’s policy
“suggests that there may be no ‘valid rational connection’
between the observation and a legitimate prison interest”).
For example, another corrections officer testified that she
was trained that male staff should not be in the unit while
females are showering and that if she had observed
Anderson at the staff counter while female wards were
showering she would have reported it. A substance abuse
counselor also testified that if he had observed a male staff
member sitting at the staff counter while female wards were
showering he would have reported it. And the director of the
juvenile hall testified that the Juvenile Hall Administrative
Manual required supervision of the showers to be provided
by staff of the same gender as the youth, and that “except in
exigent circumstances or incidental to a routine youth safety
check the youth will be permitted to shower . . . without
nonmedical staff of the opposite gender viewing their
breasts, buttocks, or genitalia.”
Second, Anderson argues that his alleged conduct, even
if true, did not violate Vazquez’s right to privacy because his
view into the showers was infrequent, from a distance, and
did not involve an inappropriate amount of contact. Yet
viewing the evidence in the light most favorable to Vazquez,
even if Anderson observed her from a distance, the question
of whether his observation was “infrequent and casual”
remains in dispute. Moreover, there is evidence that
Anderson directed Vazquez to use a certain shower stall so
he could obtain the best view.
Given the evidence that there was no rational connection
between Anderson’s conduct and a legitimate prison interest
VAZQUEZ V. COUNTY OF KERN 13
and the evidence that Anderson’s view was not necessarily
“obscured and from a distance,” we disagree with the district
court that Anderson’s alleged viewings were not sufficiently
frequent to violate Vazquez’s right to privacy under the
Fourteenth Amendment. See Byrd, 845 F.3d at 922, 924
(concluding allegations that female prison guards regularly
viewed a male pretrial detainee’s bathroom and shower use
violated his Fourteenth Amendment right to bodily privacy
could not be dismissed without an answer). Viewing the
evidence in the light most favorable to Vazquez, we hold that
a reasonable jury could conclude that Anderson violated
Vazquez’s Fourteenth Amendment right to bodily privacy.
B. Fourteenth Amendment Right To Bodily
Integrity
“Most cases that involve unwanted sexual contact or
harassment by public officials have been analyzed under the
substantive due process right to be free from violations of
bodily integrity under the Fourteenth Amendment.”
Fontana v. Haskin, 262 F.3d 871, 881–82 n.6. (9th Cir.
2001). 6 “Under the Fourteenth Amendment’s substantive
due process prong, we use the ‘shocks the conscience’ test.”
Id. at 882 n.7 (citing Cty. of Sacramento v. Lewis, 523 U.S.
833, 846 (1998)). “The threshold question is ‘whether the
behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the
contemporary conscience.’” Id. (quoting Sacramento,
523 U.S. at 848 n. 8).
6
Cases involving unwanted sexual contact or harassment by public
officials during an arrest or custodial situation are evaluated under the
Fourth Amendment. Fontana, 262 F.3d at 881–82 n.6. As Vazquez did
not raise any Fourth Amendment arguments in her appellate briefing, we
only address the Fourteenth Amendment.
14 VAZQUEZ V. COUNTY OF KERN
Vazquez asserts that Anderson selected her for isolated
work details so that he could groom her for sex. She alleges
that Anderson referred to her as “babe,” told her she had a
“big butt,” touched her face and shoulders without her
consent, talked to her about her appearance in her shower
gown, told her he had seen her in the shower, and told her
that she should leave her boyfriend and “find someone better
like him.” Moreover, she testified that during a work detail,
Anderson told her to close the door and proceeded to tell her
about a sexual dream he had about her. Vazquez testified
that Anderson then told her “to get close to him . . . to the
point where he had opened his knees and [she] was right in
the middle of him, and he told [her] that he wanted his dream
to come true.”
As he did before the district court, Anderson continues
to argue that even assuming Vazquez’s version of events is
true, his alleged conduct was too insignificant to constitute a
violation of Vazquez’s Fourteenth Amendment right to
bodily integrity. Thus, we must consider whether
Anderson’s alleged conduct, if true, would violate
Vazquez’s Fourteenth Amendment right to bodily integrity.
In Fontana, we considered whether similar conduct was
sufficient to allege a section 1983 claim. 7 262 F.3d at 875–
76. There, the plaintiff was arrested for drunk driving,
handcuffed, and placed in the back of a police vehicle as she
was driven to jail. Id. at 875. The plaintiff alleged a police
officer sexually harassed her during the drive to the station.
7
We analyzed Fontana under the Fourth Amendment because it
involved an arrest but noted that if it had not involved an arrest, we would
have analyzed the case under the Fourteenth Amendment. Fontana,
262 F.3d at 881–82 n.6. We ultimately said that even if we were to apply
the Fourteenth Amendment analysis, using the “shocks the conscience”
test, we would have reached the same result. Id. at 882 n.7.
VAZQUEZ V. COUNTY OF KERN 15
Id. She alleged that an officer sat in the back seat next to her
where he told her she had nice legs, put his arm around her,
massaged her shoulders, told her he could be her “older
man,” and made other sexual comments. Id. The defendant
officer argued that his alleged behavior did not violate any
of the plaintiff’s constitutional rights as a matter of law. Id.
at 878. We disagreed, concluding that the allegations, if true,
were “an abuse of power” and violations of the plaintiff’s
bodily integrity. Id. at 881. Significantly, in our analysis,
we also took note of the context of the allegations. See id.
at 880–81 (noting the plaintiff alleged she was “helpless,
handcuffed, and frightened and, thus, in a vulnerable
position when [the defendant] began to prey upon her”
because “[s]he had just been in a disorienting, high speed car
accident at two o’clock in the morning”).
Here, Vazquez’s assertions are sufficiently similar to
those in Fontana for us to conclude that a reasonable jury
could find that Anderson’s alleged conduct violated
Vazquez’s Fourteenth Amendment right to bodily integrity.
Moreover, the context of Vazquez’s allegations demonstrate
that she was at least as vulnerable as the Fontana plaintiff.
At the time of the alleged events, Vazquez was a female
ward at juvenile hall, whereas Anderson was 45 years old,
was larger than Vazquez, wore a uniform, and had the power
to discipline her if she refused to follow his instructions.
Thus, a jury could find that Anderson’s alleged conduct “was
egregious and outrageous and shocks the conscience as a
matter of law.” Fontana, 262 F.3d at 882 n.7.
C. Fourteenth Amendment Right to be Free From
Punishment
“The status of the detainees determines the appropriate
standard for evaluating conditions of confinement.” Gary H.
v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). “Due
16 VAZQUEZ V. COUNTY OF KERN
process requires that a pretrial detainee not be punished. A
sentenced inmate, on the other hand, may be punished,
although that punishment may not be ‘cruel and unusual’
under the Eighth Amendment.” Bell v. Wolfish, 441 U.S.
520, 537 n.16 (1979).
“For a particular governmental action to constitute
punishment, (1) that action must cause the detainee to suffer
some harm or ‘disability,’ and (2) the purpose of the
governmental action must be to punish the detainee.”
Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004)
(citing Bell, 441 U.S. at 538). “[T]o constitute punishment,
the harm or disability caused by the government’s action
must either significantly exceed, or be independent of, the
inherent discomforts of confinement.” Id. at 1030 (citation
omitted). Once harm is established, the court considers
“whether this harm is imposed ‘for the purpose of
punishment or whether it is but an incident of some other
legitimate governmental purpose.’” Id. (quoting Bell,
441 U.S. at 538).
Here, we evaluate Vazquez’s right to be free from
punishment under the Fourteenth Amendment. See Gary H.,
831 F.2d at 1432 (concluding that the district court correctly
evaluated the conditions of confinement at a facility for
adolescent wards of the juvenile court under the Fourteenth
Amendment due process clause rather than the Eighth
Amendment). 8 The district court acknowledged that
Vazquez’s claim stems from the Fourteenth Amendment,
8
In an amicus brief filed in support of Vazquez, the American Civil
Liberties Union of Southern California (“the ACLU”) argues that we
should evaluate Vazquez’s claims under an even more protective
standard than the Constitution provides to adult pretrial detainees. We
do not address this argument because Vazquez can prevail under our
existing Fourteenth Amendment standards.
VAZQUEZ V. COUNTY OF KERN 17
rather than the Eighth Amendment, but erred in its
conclusion that it should evaluate the Fourteenth
Amendment claim under “the same standards” as an Eighth
Amendment claim. Rather, the Fourteenth Amendment is
more protective than the Eighth Amendment “because the
Fourteenth Amendment prohibits all punishment of pretrial
detainees, while the Eighth Amendment only prevents the
imposition of cruel and unusual punishment of convicted
prisoners.” Demery, 378 F.3d at 1029 (citing Bell, 441 U.S.
at 535 n.16) (emphasis added).
In Byrd, we considered, among other issues, whether
allegations that female guards observed a pretrial detainee in
the bathroom and shower violated his Fourteenth
Amendment right to be free from cruel and unusual
punishment. 845 F.3d at 921–22, 924. There, the district
court sua sponte dismissed the complaint under 28 U.S.C.
§ 1915A after concluding that the policy of allowing cross-
gender supervision had long been held constitutional in the
Ninth Circuit. Id. at 922. Because no evidence had yet been
presented to support potential goals behind the observation
policy and because the prison’s strip search policy
potentially banned this type of observation, we concluded
that the allegations were sufficient to proceed past the
screening stage. Id. at 924.
Here, Vazquez has asserted facts from which a jury could
find that Anderson violated her right to be free from
punishment. First, Vazquez alleged that Anderson’s conduct
caused her harm outside of the inherent discomforts of
confinement. Second, Anderson’s alleged conduct did not
serve a legitimate governmental objective. As discussed
above, there is evidence that Anderson’s alleged viewing of
Vazquez in the shower served no legitimate purpose as such
observations were against institution policy. See Byrd,
18 VAZQUEZ V. COUNTY OF KERN
845 F.3d at 924. Anderson’s other alleged conduct—
including selecting Vazquez for work details so they could
be alone together; calling Vazquez “babe”; telling her she
had a “big butt”; touching her face and shoulders;
commenting on her shower gown; telling her that he had
seen her in the shower and that she should leave her
boyfriend to find someone like him; directing her to use
certain showers; telling her about a sexual dream he had
about her and that he wanted the dream to come true; and
directing her “to get close to him . . . to the point where he
had opened his knees and [she] was right in the middle of
him”—serves no legitimate purpose. In light of this record
evidence, we hold that a jury could find that Anderson
violated Vazquez’s Fourteenth Amendment right to be free
from punishment.
D. Qualified Immunity
“Qualified immunity attaches when an official’s conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (internal quotation marks and citation omitted). “A
clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what
he is doing violates that right.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (internal quotation marks and citation
omitted). “[T]he clearly established right must be defined
with specificity.” City of Escondido, Cal. v. Emmons, 139 S.
Ct. 500, 503 (2019). However, “there can be the rare
‘obvious case,’ where the unlawfulness of the officer’s
conduct is sufficiently clear even though existing precedent
does not address similar circumstances.” D.C. v. Wesby,
138 S. Ct. 577, 590 (2018). Thus, “[w]hen a violation is
obvious enough to override the necessity of a specific factual
VAZQUEZ V. COUNTY OF KERN 19
analogue, . . . it is almost always wrong for an officer in
those circumstances to act as he did.” Sharp v. Cty. of
Orange, 871 F.3d 901, 912 (9th Cir. 2017). Training
materials and regulations are also relevant, although not
dispositive, to determining whether reasonable officers
would have been on notice that their conduct was
unreasonable. Drummond ex rel. Drummond v. City of
Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003); see also
Hope v. Pelzer, 536 U.S. 730, 741–42 (2002) (considering
an Alabama Department of Corrections regulation and a
Department of Justice report in its qualified immunity
analysis).
i. Bodily Privacy
In this circuit, “[i]t is clearly established that the
Fourteenth Amendment protects a sphere of privacy, and the
most ‘basic subject of privacy . . . the naked body.’” Hydrick
v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007), cert. granted,
judgment vacated on other grounds, 556 U.S. 1256 (2009)
(quoting Grummet, 779 F.2d at 494); see also Sepulveda,
967 F.2d at 1416 (“The right to bodily privacy is
fundamental. . . . and was clearly established at the time
. . . .”).
Anderson also likely attended a PREA training. 9 Under
the PREA, sexual abuse includes “[v]oyeurism, which is
defined as the inappropriate visual surveillance of a detainee
for reasons unrelated to official duties.” 6 C.F.R. § 115.6.
Moreover, Kern County Juvenile Hall’s policies require
9
Catherine Gonzalez, a Deputy Probation Officer, testified that she
taught Kern County’s PREA course and that she believed that Anderson
and Appleton completed the PREA training. Gonzalez testified that the
PREA course “goes over the policy,” but did not explicitly explain what
was covered in the training.
20 VAZQUEZ V. COUNTY OF KERN
supervision of showers to be provided by staff of the same
gender, and, absent exigent circumstances or incidental to a
routine safety check, require that a ward be allowed to
shower and perform bodily functions without nonmedical
staff of the opposite gender from viewing them.
Therefore, given that we have clearly recognized a
Fourteenth Amendment right to bodily privacy, the Juvenile
Hall administrative policies, and the training Anderson
likely attended, he is not entitled to qualified immunity for
Vazquez’s Fourteenth Amendment bodily privacy claim.
ii. Bodily Integrity and Right to Be Free From
Punishment
“Where guards themselves are responsible for the rape
and sexual abuse of inmates, qualified immunity offers no
shield.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir.
2000) (emphasis in original). “In the simplest and most
absolute of terms the . . . right of prisoners to be free from
sexual abuse [is] unquestionably clearly established [in the
Ninth Circuit] . . . and no reasonable prison guard could
possibly [believe] otherwise.” Schwenk v. Hartford,
204 F.3d 1187, 1197 (9th Cir. 2000).
Anderson argues that his alleged conduct—including
sexual comments and contact—is not equivalent to the
sexual abuse that we have found unconstitutional. Yet, in
Fontana, we noted that the alleged similar conduct, was
“malum in se” and that “[n]o reasonable officer could
believe that this conduct did not violate [the plaintiff’s]
constitutional rights.” Fontana, 262 F.3d at 882 n.8.
Moreover, the Kern County Juvenile Hall policy prohibiting
staff members from being alone in a room with minors
absent an emergency as well as Anderson’s likely PREA
training provided him with notice that his alleged conduct
VAZQUEZ V. COUNTY OF KERN 21
was unreasonable. 10 And, beyond the clearly established
case law, training, and juvenile hall policies, it is “obvious”
that a juvenile corrections officer should not sexually harass
or abuse a juvenile ward as it is always wrong for a juvenile
corrections officer to engage in such conduct. See Sharp,
871 F.3d at 912 (9th Cir. 2017). Accordingly, we conclude
that Anderson is not entitled to qualified immunity for
Vazquez’s bodily integrity or punishment claims.
II. Appleton’s Motion for Summary Judgment
Appleton sought summary adjudication of Vazquez’s
claim for relief for supervisory liability under § 1983.
“Although there is no pure respondeat superior liability
under § 1983, a supervisor is liable for the acts of his
subordinates if the supervisor participated in or directed the
violations, or knew of the violations [of subordinates] and
failed to act to prevent them. Preschooler II v. Clark Cty.
Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007)
(internal quotation marks and citation omitted). “The
requisite causal connection may be established when an
official sets in motion a series of acts by others which the
actor knows or reasonably should know would cause others
to inflict constitutional harms.” Id. at 1183 (internal
quotation marks and citation omitted).
Vazquez identified facts from which a jury could find
that Appleton “set[] in motion a series of acts” which he
reasonably should have known would cause Anderson to
10
PREA defines “sexual harassment” as “[r]epeated verbal
comments or gestures of a sexual nature to an inmate, detainee, or
resident by a staff member, contractor, or volunteer, including
demeaning references to gender, sexually suggestive or derogatory
comments about body or clothing, or obscene language or gestures.”
28 C.F.R. § 115.6.
22 VAZQUEZ V. COUNTY OF KERN
inflict constitutional harm. Id. at 1183. First, he observed
Anderson alone with female wards on more than one
occasion and failed to intervene. Anderson also testified that
Appleton gave him permission to be alone in a cell with
female wards during work details.
Second, Appleton was aware of a prior incident
involving Anderson’s supervision of female wards’ showers.
Approximately six months before Vazquez raised her
allegations, a staff member overheard Anderson tell a female
ward to get ready to shower when the female staff and other
wards were outside at physical education. The staff member
was concerned by Anderson’s actions, partly because the
gap in the shower curtains would allow someone sitting at
the staff counter to see into the showers. She took notes
about the incident and reported it to Appleton. Appleton did
not write Anderson up, but he did bring up the incident with
his supervisor. 11 Appleton testified that his supervisor told
him to remind Anderson to have a female staff member in
the unit while showers were conducted. Appleton testified
he did not recall exactly how he spoke to Anderson about the
matter but that he would have conveyed to him something
“along the lines” of needing “to have a female present during
showers.”
From this evidence a jury could find that Appleton knew
or reasonably should have known of Anderson’s violations
and failed to act to prevent them. See Preschooler II,
479 F.3d at 1182. Thus, viewing the evidence in the light
most favorable to Vazquez and making all justifiable
inferences in her favor, we hold that the district court erred
11
Appleton was trained that if he observed any red flags of sexual
abuse or if he received any reports from other staff members, he had to
document and report the observations.
VAZQUEZ V. COUNTY OF KERN 23
when it concluded there was no evidence supporting a causal
link between Appleton’s conduct and Anderson’s alleged
violation of Vazquez’s constitutional rights.
CONCLUSION
The district court erred when it granted Anderson’s and
Appleton’s motions for summary judgment. Because we
conclude the district court erred in granting summary
judgment, we need not consider Vazquez’s argument that the
district court erred when it imposed costs. Accordingly, for
the reasons described above, we REVERSE and REMAND
for further proceedings consistent with this opinion. 12
12
Furthermore, we vacate the district court’s order awarding costs.
We also vacate the district court’s judgment in favor of Kern County and
remand for further proceedings consistent with this opinion.