SEYMOUR, Chief Judge.
While serving 48-hour sentences for minor offenses at Box Elder County Jail in Utah, Kathy Christensen and Susan Barney were on separate occasions sexually assaulted by jailer Gerald Pulsipher. Ms. Christensen and Ms. Barney each brought suit against Gerald Pulsipher, Box Elder County, Sheriff Robert Limb, and County Commissioners Lee Allen, James White, and Allen Jensen under 42 U.S.C. § 1983 alleging violations under the First, Eighth, Ninth, and Fourteenth Amendments based on Mr. Pulsipher's sexual assault and other conditions of confinement arising out of their two-day incarcerations. The two actions were consolidated, and all defendants except Mr. Pulsipher moved for summary judgment. The district court granted the motion. Ms. Christensen and Ms. Barney appeal,
In accordance with state law requiring "the separation of prisoners by sex," Utah Stat. Ann. § 17-22-5 (1995 repl.), women inmates at Box Elder County Jail are placed in solitary confinement in a cell specifically designated for females. The female cell is eight-by-eight feet in dimension, and the door to the cell contains a small window which is covered by a manilla envelope taped to the outside of the door. Below the covered window is a small opening with a trap door which is used to provide inmates a food tray. The cell is located on the first floor of the jail adjacent to the jail officer's desk. On the separate occasions Ms. Barney and Ms. Christensen were confined at Box Elder County Jail, they each allege the following inadequate conditions:
Aplt. Br. at 14.
Several closed circuit television cameras are in the jail and linked to monitors in the dispatch area to aid jail officials in maintaining the security of the facility. No cameras monitor the outside exercise area commonly known as the "bullpen." Aplt.App. at 216-17, 499. Although dispatchers generally watch the monitors in concert with their dispatch duties, they are under no obligation to view them continuously.
The Jail Policies and Procedures Manual specifically instructs jailers to "give notification prior to entering the cell blocks of the opposite sex" to the dispatcher who "will monitor the cell block." Id. at 230-31. Moreover, male jailers are prohibited from "remov[ing] female inmates from their cells without another officer being physically present." Id. at 229. Ordinarily two jailers are required to be on duty per shift, but when one jailer is sick or on vacation a second jailer is usually not called in due to under-staffing and budgetary constraints. The manual further prohibits jailers from accepting sex or other favors from prisoners, forbids staff members from taking any prisoners out of the jail for any reason except to perform authorized jail work assignments, and prohibits discrimination against any prisoner on the basis of sex.
As a result of overcrowding in the jail, the indoor exercise area and library are used to house overflow male prisoners, and women are therefore excluded from using these spaces. Because of the lack of monitoring and services available to women inmates, a report evaluating the jail concluded "[t]he present configuration of space dictates that the facility not house women inmates for periods of time longer than several hours." Aplt.App. at 501. Recognizing that the facilities at Box Elder County Jail are inadequate for holding women prisoners for any considerable length of time, Sheriff Limb ordinarily follows a "verbal policy" of confining only women who need to be detained for 24-36 hours at the jail. Id. at 212-13. The County usually contracts out to jails in neighboring counties to house women prisoners sentenced for longer periods of time unless these jails are full, in which case female inmates are kept at Box Elder County Jail.
Early in the morning of May 15, 1993, Kathy Christensen arrived at Box Elder County Jail to serve a 48-hour sentence for a DUI conviction and was placed in the female cell. Later that day, Gerald Pulsipher, the only jailer on duty at the time, removed Ms. Christensen from her cell without informing the dispatcher as required by jail policy and led her outside to the unmonitored "bullpen" area where he sexually assaulted her. Mr. Pulsipher threatened to keep Ms. Christensen in jail longer than 48 hours if she did not perform oral sex as he demanded. After completing her sentence, Ms. Christensen did not report the incident of assault to the County.
On July 10, 1993, Susan Barney was placed in the female cell at Box Elder County Jail to
On August 24, 1993, Sheriff Limb terminated Mr. Pulsipher's employment. Criminal charges were filed against Mr. Pulsipher, who pled guilty to forcible sexual abuse of Ms. Christensen. As part of the plea agreement, the criminal charges relating to the sexual assault of Ms. Barney were dismissed.
During the time Mr. Pulsipher was employed by the Box Elder County Sheriff's Department, Utah law required all peace officers to be certified and successfully complete a basic training course at a certified academy. See Utah Code Ann. § 67-15-7 (1991) (subsequently amended and renumbered as Utah Code Ann. § 53-6-205 (1994)). Before being accepted for admission to a state certified training program, the applicant must undergo a background investigation, which includes a criminal history check, to determine the applicant's "good moral character." Id. § 67-15-6. If the criminal history check reveals convictions for crimes punishable by imprisonment at a state or federal penitentiary or an offense involving dishonesty, unlawful sexual conduct, physical violence, or drugs, the applicant is denied admission. Id.
Mr. Pulsipher was accepted for admission at the Utah Law Enforcement Academy of Weber State University, a state certified basic training program. The background investigation on Mr. Pulsipher turned up one arrest for possession of alcohol at age seventeen and several speeding tickets, but nothing serious enough to deny him admission to the academy. Upon successfully graduating from the academy, Mr. Pulsipher was certified as a peace officer.
Mr. Pulsipher was hired as a Deputy Sheriff by the Box Elder County Sheriff's Department in 1991. The department followed its standard procedure in hiring Mr. Pulsipher. After he submitted an application, Sergeant Yeates interviewed him, checked his application, and contacted his references who all provided positive statements about him. There was no policy in effect requiring written letters of recommendations or written reports of the Sergeant's conversations with these references. Mr. Pulsipher's application was then sent to Sheriff Limb for final approval.
Mr. Pulsipher satisfactorily completed the basic correctional officer course offered by the Department of Corrections, fulfilling the minimum requirements to exercise peace officer authority as a correctional officer in the state of Utah. During the course, Mr. Pulsipher received instruction on offenders' rights, staff/inmate relations, sexual harassment, and cross-gender search and supervision. He also took continuing education courses throughout his employment at Box Elder County Jail to maintain his state certification as a peace officer.
Mr. Pulsipher received a copy of the Jail Policy and Procedures Manual in November 1992, and he was required to read it in its entirety and "be familiar with its contents and comply with its directives." Aplt.App. at 226. In an employee performance appraisal dated February 2, 1993, Mr. Pulsipher received satisfactory to above satisfactory grades in all categories. Before the incidents involving Ms. Christensen and Ms. Barney, Mr. Pulsipher had not been the subject of any disciplinary action and Sheriff Limb considered him one of his better officers.
James White, Lee Allen, and Allen Jensen were the County Commissioners at the time the events underlying this appeal took place. The Commissioners were responsible for funding the jail but did not exercise day-to-day supervision or administration of the jail, which was left entirely to Sheriff Limb. Under state law, the Sheriff is charged with keeping the county jail and its prisoners and is the final policymaking authority for jail operations. See Utah Stat. Ann. § 17-22-2 to -4; Aplt.App. at 227.
Susan Barney brought this action against Gerald Pulsipher, Box Elder County, Sheriff Limb and Commissioners Allen, White, and Jensen in their official and individual capacities under 42 U.S.C. § 1983 for the sexual assault by Mr. Pulsipher and other conditions of confinement arising out of her two-day incarceration at Box Elder County Jail.
Ms. Christensen also brought a section 1983 action against the same defendants, alleging similar constitutional violations and seeking similar relief for her two-day incarceration at the jail. These actions were subsequently consolidated by the district court.
The district court granted the motions of the County, Sheriff Limb, and Commissioners Allen, White, and Jensen for summary judgment. The court was persuaded that defendants had not acted with the required "deliberate indifference" to violate the Eighth Amendment, noting the absence of any previously reported incidents of sexual misconduct by Mr. Pulsipher or any jailers, and holding that the conditions of plaintiffs' confinement did not rise to the level of cruel and unusual punishment in light of the brevity of their stay. The court further found no evidence in the record demonstrating that jail conditions for female prisoners violated clearly established equal protection rights, and concluded that defendants' policy of holding women inmates in solitary confinement when arrangements could not be made to transport them to other jails was reasonably related to the legitimate penal interest of providing separate housing for men and women prisoners. The court thus granted the individual defendants qualified immunity on all damage claims and granted judgment in favor of defendants on all claims in the complaint.
We begin our review with Ms. Barney's and Ms. Christensen's claims against the County and Sheriff Limb and the Commissioners in their official capacities.
The County may be held liable under 42 U.S.C. § 1983 only for its own unconstitutional or illegal policies and not for the tortious acts of its employees. See Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). The Supreme Court recently revisited the issue of municipal liability and held that a municipality is liable only when the official policy is the "`moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and deprivation of federal rights." Board of County Comm'rs v. Brown, 520 U.S. 397, ___, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997).
The Supreme Court observed in Brown that when an official municipal policy itself violates federal law, issues of culpability and causation are straightforward; simply proving the existence of the unlawful policy puts an end to the question. See id. at ___-___, 117 S.Ct. at 1388-89. The Court distinguished the above situation from a case in which the policy at issue is lawful on its face and the municipality therefore has not directly inflicted the injury through its own actions. The Court concluded that determining culpability and causation in the latter circumstance "present[s] much more difficult problems of proof." Id. at ___, 117 S.Ct. at 1389. In these situations, in keeping with the dictates of Monell, the Court believed that "rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Id. Ms. Barney and Ms. Christensen do not contend the County maintains an official policy of sexually harassing, assaulting, or discriminating against women prisoners. Nor do they contend Sheriff Limb authorized Mr. Pulsipher's sexual assaults. Rather, plaintiffs essentially argue the County is liable for its conduct in hiring and training Mr. Pulsipher. Accordingly, this situation falls within that category of cases in which the Supreme Court has mandated that "rigorous standards of culpability and causation must be applied." Id. at ___, 117 S.Ct. at 1389.
We turn first to the claim based on the alleged inadequate training. In City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court held that municipal liability based on a policy of inadequate training requires proof of the municipality's "deliberate indifference" to its inhabitants — i.e., the failure to train must "reflect[ ] a `deliberate' or `conscious' choice by a municipality." Id. at 389, 109 S.Ct. at 1205.
Here, plaintiffs' failure-to-train claim fails because the record contains no evidence tending to show that the County acted with deliberate indifference. The Sheriff and the Commissioners testified in their depositions they were unaware of any previous incidents involving the sexual assault of an inmate by a Box Elder County jailer or of any complaints about the treatment of women inmates at the jail. Plaintiffs proffered no evidence to the contrary. Consequently, no pattern of violations existed to put the County on notice that its training program was deficient in this regard.
In addition, this case does not fall within the narrow range of circumstances justifying a finding of deliberate indifference absent a pattern of violations. Mr. Pulsipher completed a state certified basic peace officer training program and a correctional officer course after he was hired, which included instruction on offenders' rights, staff/inmate relations, sexual harassment, and cross-gender search and supervision. Plaintiffs have not come forward with evidence pertaining to the adequacy of the instruction he received in these courses. We thus have no reason to conclude that Mr. Pulsipher received constitutionally deficient training. See Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir.1996). Even if the courses concerning gender issues and inmates' rights were less than adequate, we are 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. See id. ("In light of the regular law enforcement duties of a police officer, we cannot conclude that there was a patently obvious need for the city to specifically train officers not to rape young women.")
We next consider plaintiffs' claim based on the decision to hire Mr. Pulsipher. In Brown, the Supreme Court specifically examined the showing required to hold a municipality liable for a single inadequate hiring decision.
Merely showing that a municipal officer engaged in less than careful scrutiny of an applicant resulting in a generalized risk of harm is not enough to meet the rigorous requirements of "deliberate indifference." Id. at ___, 117 S.Ct. at 1392. Culpability requires a strong connection between the background of the particular applicant and the specific constitutional violation alleged. Establishing municipal liability in the hiring context requires a finding that "this officer was highly likely to inflict the particular injury suffered by the plaintiff." Id.
Mr. Pulsipher's background investigation revealed an arrest at age seventeen
Ms. Barney and Ms. Christensen also sued the Sheriff and the Commissioners in their individual capacities. Qualified immunity is an affirmative defense against section 1983 damage claims available to public officials sued in their individual capacities. Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir.1995). Government officials are shielded from liability if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Plaintiffs maintain the district court erred in granting qualified immunity to the individual defendants, contending defendants violated their clearly established rights under the Eighth Amendment and Equal Protection Clause.
"In analyzing qualified immunity claims, we first ask if a plaintiff has asserted the violation of a constitutional right at all, and then assess whether the right was clearly established at the time of a defendant's actions." Gehl Group v. Koby, 63 F.3d 1528, 1533 (10th Cir.1995) (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)). "We review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.1990). Once a defendant raises the defense, the plaintiff assumes the burden of "(1) coming forward with sufficient facts to show that the defendant's conduct violated the law; and (2) demonstrating that the relevant law was clearly established when the alleged violation occurred." Gehl Group, 63 F.3d at 1533. "Where a plaintiff fails to demonstrate that a defendant's conduct violated the law, we need not reach the issue of whether the law was clearly established." Id.
A. Eighth Amendment
Prison officials are required to provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety. See Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 1976-77, 128 L.Ed.2d 811 (1994). Plaintiffs contend Sheriff Limb and the Commissioners violated their Eighth Amendment rights by failing to protect them from Mr. Pulsipher's sexual harassment and assaults and by the inhumane conditions they allegedly suffered during their two-day incarcerations.
In order to hold prison officials liable for violating an inmate's right to humane conditions of confinement, two requirements must be met. First, the deprivation alleged must be objectively "sufficiently serious," Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991), depriving the inmate of "`the minimal civilized measure of life's necessities,'" id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Second, the official must have a "sufficiently culpable state of mind," which in this context means the official must exhibit "deliberate indifference" to a substantial risk of serious harm to an inmate. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977; Wilson, 501 U.S. at 297, 111 S.Ct. at 2323. Thus, the deliberate indifference standard in a prison-conditions case is a "subjective" and not an "objective" requirement. That is, a prison official is liable only if the "official knows of and disregards an excessive risk to inmate health and safety." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. It is not enough to establish that the official should have known of the risk of harm. Id.
With regard to plaintiffs' sexual assault claims,
We explicitly rejected this argument in Hovater, which involved very similar facts and controls here. There, Mr. Robinson, a detention officer, called Ms. Hovater, a female inmate, from her cell to the library. In violation of jail policy which required that female inmates be accompanied by either a female officer or at least two male officers, Ms. Hovater was left alone with Mr. Robinson, who then sexually assaulted her. Id. at 1064-65. Prior to this incident, neither the sheriff nor the county commissioners knew of any complaints from female inmates about sexual misconduct by Mr. Robinson or any other jail officer. Id. at 1064. We held Ms. Hovater failed to establish that the sheriff and the county commissioners acted with deliberate indifference — i.e., that the defendants "disregarded an obvious risk to the safety of female inmates by allowing a single male guard to have custody of a female inmate absent any indication that the guard would assault her." Id. at 1066.
Id. at 1068.
Nor does the record here contain any evidence to indicate that male guards at Box Elder County Jail, if left alone with female inmates, posed a risk to their health and safety. As in Hovater, we decline to find knowledge by Sheriff Limb and the Commissioners of a substantial risk of harm from the mere fact of Mr. Pulsipher's gender. Without any evidence of sexual misconduct in Mr. Pulsipher's background or any evidence of previous incidents of sexual misconduct by Box Elder County jailers, plaintiffs have failed to raise a fact question on whether the Sheriff and the Commissioners acted with deliberate indifference under either an objective or subjective standard.
With regard to the general conditions of confinement, plaintiffs specifically allege a filthy cell, inadequate lighting and ventilation, lack of enclosures around the shower and toilet, unappetizing food, and no access to recreational facilities. The Eighth Amendment "does not mandate comfortable prisons," and conditions imposed may be "restrictive and even harsh." Rhodes, 452 U.S. at 347, 349, 101 S.Ct. at 2399, 2400. An important factor in determining whether conditions of confinement meet constitutional standards is the length of the incarceration. Thus, a "filthy, overcrowded cell and a diet of
B. Equal Protection
Ms. Barney and Ms. Christensen contend defendants discriminated against them on the basis of their sex in violation of the Equal Protection Clause by subjecting them to sexual harassment and assault,
Plaintiffs have not come forward with any evidence indicating that women serving two-day sentences at Box Elder County Jail received treatment different from men serving similar lengths of time.
In sum, plaintiffs failed to meet their burden of presenting sufficient facts to show that Sheriff Limb and the Commissioners violated either the Eighth Amendment or the Equal Protection Clause. Consequently, the district court properly granted summary judgment for these defendants.
As the County defendants readily concede, Mr. Pulsipher's conduct towards Ms. Barney and Ms. Christensen was inexcusable and "outrageous." Aplee Br. at 23. Such outrageous conduct by Mr. Pulsipher, without more, is not enough to impose liability on the County, or the Sheriff and the Commissioners in their individual capacities. Mr. Pulsipher has been criminally convicted for his behavior and the section 1983 suit against him is pending below. Ms. Barney and Ms. Christensen are therefore not left entirely without relief.