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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                No. 16-10675                          FILED
                                                                   July 6, 2017
                                                                 Lyle W. Cayce
EZMERELDA RIVERA,                                                     Clerk

             Plaintiff–Appellant,

v.

A. J. BONNER; DAVID B. MULL,

             Defendants–Appellees.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      In December 2014, Appellant Ezmerelda Rivera was sexually assaulted
by Manuel Fierros, an officer at the Hale County Jail. Rivera subsequently
brought claims under 42 U.S.C. § 1983 against Fierros, Hale County Sheriff
David Mull, and Hale County Jail Administrator A.J. Bonner. Rivera claimed
that Mull and Bonner (collectively, “Appellees”) were deliberately indifferent
in hiring Fierros and that they inadequately trained and supervised jail
employees. The district court granted summary judgment and dismissed
Rivera’s claims against Appellees. We AFFIRM.
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                                  No. 16-10675
                              I. BACKGROUND
      Fierros was hired as a jailer at the Hale County Jail in October 2012.
During the hiring process, Appellees became aware that Fierros had been
arrested on two occasions when he was fifteen years old—once in Randall
County and once in Potter County—for indecency with a child by sexual
contact. After learning about these arrests, Bonner purportedly called the
Randall County district attorney’s and probation offices as well as the Potter
County district attorney’s office to inquire about the incidents. Bonner claims
that no records of the arrests were found, the individuals he spoke with had no
knowledge of the charges, and “no convictions [were] shown.”
      In July 2014, a senior jailer at the Hale County Jail sexually abused a
female detainee. The jailer stood outside the detainee’s cell and directed her to
perform sexual acts on herself. This incident was caught on the jail’s video
surveillance system and was reported to jail authorities by another officer who
observed the abuse. After an investigation, the jailer admitted to the abuse and
resigned. In subsequent staff briefings, jail officials purportedly reminded jail
staff that sexual exploitation of detainees was prohibited, but they did not
implement any additional training regarding sexual misconduct. Jail officials
also displayed a poster at the facility that showed a red prohibition sign across
the words “sex with inmates,” followed by “it’s a felony.” No policies or
procedures were revised in response to the incident.
      Approximately six months later, in the early morning hours of December
14, 2014, Rivera was arrested for public intoxication in connection with her
husband’s arrest for driving while intoxicated. Both Rivera and her husband
were transported to the Hale County Jail, where Fierros was the officer in
charge that night. After Rivera arrived at the jail, a female officer took her into
a private room and instructed her to change into orange scrubs with no
undergarments underneath. Fierros then took over the booking process.
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                                  No. 16-10675
Fierros escorted Rivera into the jail’s “multipurpose room,” which was used by
the jail for bookings and arraignments, as well as for inmates to meet with
attorneys and chaplains. The room was not monitored by video surveillance.
Fierros instructed two female jailers to exit the room, leaving him alone with
Rivera. Fierros then groped Rivera’s breasts and forced her to perform oral sex
on him. Fierros was left alone with Rivera for approximately fifty-five minutes,
during which time he left and reentered the room at various times. Rivera was
released from the jail the following day. After Rivera filed a complaint with
state law enforcement, she was informed that Fierros had confessed to sexually
assaulting her.
      In March 2015, Rivera filed this suit against Fierros and Appellees under
42 U.S.C. § 1983. In addition to claims against Fierros, Rivera brought
Fourteenth Amendment claims against Appellees, asserting that they were
deliberately indifferent to the risks associated with hiring Fierros and that
they inadequately trained and supervised jail employees. Appellees moved for
summary judgment on the basis of qualified immunity. The district court
granted the motion for summary judgment and dismissed Rivera’s claims
against Appellees. This appeal followed.
                               II. DISCUSSION
      “We review a summary judgment de novo, ‘using the same standard as
that employed by the district court under Rule 56.’” Newman v. Guedry, 703
F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431,
435 (5th Cir. 2000)). Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
      Under the doctrine of qualified immunity, public officials “are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
Supreme Court has “mandated a two-step sequence for resolving government
officials’ qualified immunity claims.” Pearson v. Callahan, 555 U.S. 223, 232
(2009). A court must decide (1) “whether the facts that a plaintiff has
alleged . . . make out a violation of a constitutional right” and (2) “whether the
right at issue was ‘clearly established’ at the time of defendant’s alleged
misconduct.” Id. Importantly, the Supreme Court held in Pearson that courts
“should be permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Id. at 236. At the same
time, the Supreme Court recognized that deciding the two prongs in order “is
often beneficial.” Id.
      When an official pleads qualified immunity, “the burden then shifts to
the plaintiff, who must rebut the defense by establishing a genuine fact issue
as to whether the official’s allegedly wrongful conduct violated clearly
established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
However, “[b]ecause this case arises in a summary judgment posture, we view
the facts in the light most favorable to [Rivera], the nonmoving party.” City &
County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1769 (2015). That is,
“[t]he evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in [her] favor.” Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014)
(per curiam) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
A.    Deliberate Indifference in Hiring
      “In order to establish supervisor liability for constitutional violations
committed by subordinate employees, plaintiffs must show that the supervisor
act[ed], or fail[ed] to act, with deliberate indifference to violations of others’
constitutional rights committed by their subordinates.” Wernecke v. Garcia,
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                                  No. 16-10675
591 F.3d 386, 401 (5th Cir. 2009) (alterations in original) (internal quotation
marks omitted) (quoting Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 254
(5th Cir. 2005)). “‘[D]eliberate indifference’ to the ‘known or obvious
consequences’ of a hiring decision can amount to a constitutional violation on
the part of the decision maker.” Gros v. City of Grand Prairie, 209 F.3d 431,
433 (5th Cir. 2000) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407
(1997)). Rivera contends that Appellees were deliberately indifferent to obvious
safety risks when they hired Fierros despite his criminal record. In support of
this contention, Rivera’s expert opined that “[i]t should have been predictable
that . . . hiring a person with a known history of arrests for sexually based
offenses, without doing more to establish that the allegations were unfounded
or untrue, would expose detainees to a significant risk of sexual assault.”
      When a plaintiff alleges that a supervisor inadequately considered an
applicant’s background, “‘deliberate indifference’ exists where adequate
scrutiny . . . would lead a reasonable supervisor to conclude that the plainly
obvious consequences of the decision to hire would be the deprivation of a third
party’s constitutional rights.” Id. at 433–34; accord Brown, 520 U.S. at 411.
The Supreme Court has noted that “predicting the consequence of a single
hiring decision, even one based on an inadequate assessment of a record, is far
more difficult than predicting what might flow from the failure to train a single
law enforcement officer as to a specific skill necessary to the discharge of his
duties.” Brown, 520 U.S. at 410. Accordingly, a plaintiff must show that there
was “a strong connection between the background of the particular applicant
and the specific violation alleged” such that “the hired officer was highly likely
to inflict the particular type of injury suffered.” Gros, 209 F.3d at 434. “A
showing of simple or even heightened negligence will not suffice.” Brown, 520
U.S. at 407.


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                                  No. 16-10675
      In Brown, the Supreme Court held that a county sheriff was not
deliberately indifferent in hiring a police officer who had a criminal record. Id.
at 415–16. After the officer used excessive force during an arrest, the arrestee
brought a § 1983 claim alleging that the sheriff had failed to conduct an
adequate review of the officer’s background when hiring him. Id. at 399–401.
The officer had previously pleaded guilty to several misdemeanors—assault
and battery, resisting arrest, and public drunkenness—arising from a fight
during college. Id. at 413. The sheriff’s testimony at trial indicated that, despite
obtaining a background report during the hiring process, the sheriff “did not
inquire into the underlying conduct or the disposition of any of the
misdemeanor charges.” Id. at 401, 411. Although the Supreme Court noted
that a jury could find the sheriff’s “assessment of [the officer’s] background was
inadequate,” the Court ultimately concluded that the officer’s use of excessive
force was not “a plainly obvious consequence of the hiring decision.” Id. at 412,
415. The link between the officer’s prior convictions and his use of excessive
force was too tenuous to show that the sheriff had disregarded a known or
obvious risk of injury. Id. at 412–14.
      This Court has reached similar conclusions in cases involving allegations
of sexual assault. See Hardeman v. Kerr County, 244 F. App’x 593, 596 (5th
Cir. 2007) (per curiam); Gros, 209 F.3d at 436. In Gros, this Court held that
there was not a “strong causal connection” between an officer’s background and
the plaintiffs’ allegations that the officer sexually, physically, and verbally
abused them during routine traffic stops. 209 F.3d at 436. Arguing that the
police chief was deliberately indifferent in hiring the officer, the plaintiffs
pointed to “scattered statements” in the officer’s “pre-employment file that
suggest[ed] he was sometimes too aggressive” during his previous employment
with a campus police department. Id. at 435. However, the officer “had never
sexually assaulted, sexually harassed, falsely arrested, improperly searched or
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                                  No. 16-10675
seized, or used excessive force against any third party.” Id. In addition, the
former colleagues who had characterized the officer as overly aggressive “also
had positive things to say about [him] and ultimately recommended him as a
good hire.” Id. at 435–36. In the end, this Court concluded that the comments
in the personnel file were, “at worst, mixed” and thus that the evidence was
insufficient to show deliberate indifference in hiring. Id. at 436.
      Similarly, in Hardeman, an inmate alleged that a jailer “forced her to
perform oral sex on him, and took her into the shower area where he forcibly
raped her.” 244 F. App’x at 595. When the county hired the jailer several
months earlier, a record from the Texas Employment Commission indicated
that he had previously been fired by a school district for making “improper
advances towards high school (female) students.” Id. at 594–95. Though the
county conducted a background investigation, there was no evidence that the
county found out that the jailer had been fired or even contacted the school
district regarding the jailer’s previous employment. Id. at 594, 596. Yet this
Court noted that “[e]ven if the County had done a thorough job of
investigating” the jailer’s background, it would have required “an enormous
leap to connect ‘improper advances’ towards female students to the sexual
assault.” Id. at 596. Consequently, there were “no grounds to find that the
alleged rape in question was a ‘plainly obvious consequence’ of hiring him.” Id.
      It does not require an enormous leap to connect an applicant’s prior
arrests for sex crimes with at least some risk—though perhaps not a plainly
obvious one—that the applicant might sexually assault detainees at a jail.
“[W]hen the State takes a person into its custody and holds him there against
his will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being.” DeShaney v. Winnebago
Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989). Indeed, detainees in
jails and prisons are “restricted in their ability to fend for themselves” and are
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                                       No. 16-10675
therefore far more vulnerable than the general population. See Hare v. City of
Corinth, 74 F.3d 633, 639 (5th Cir. 1996). As illustrated by the instant case,
officers in detention facilities are often able to exercise almost complete control
over detainees, which creates real risks that officers will sexually assault the
people in their care. These risks have received substantial and deserved
attention and should, by now, be well-known to corrections officials.
Accordingly, when hiring officers for detention facilities, officials must be
careful to thoroughly examine applicants’ backgrounds and diligently inquire
about the conduct underlying any prior offenses. The Department of Justice’s
“Standards to Prevent, Detect, and Respond to Prison Rape,” promulgated
pursuant to the Prison Rape Elimination Act (“PREA”), describe detailed best
practices for vetting applicants’ backgrounds before they are hired by detention
facilities. See 28 C.F.R. § 115.17 (2012).
       Nevertheless, under the specific circumstances of this case, the
connection between Fierros’s prior arrests and the injury to Rivera is not
strong enough to show that Appellees were deliberately indifferent in hiring
him. Much like the officer in Brown, Fierros’s prior arrests for indecency with
a child by sexual contact “may well have made him an extremely poor
candidate” for a position as jailer. See 520 U.S. at 414. But Fierros’s juvenile
record provided no detail regarding the alleged offenses, and there was no
evidence that Fierros was ever charged or convicted. At the time of Fierros’s
arrests, the Texas crime of indecency with a child broadly prohibited all “sexual
contact” with “a child younger than 17 years.” Tex. Penal Code § 21.11(a)
(2001). 1 Fierros was fifteen years old at that point, and it is entirely possible


       1 It was an “affirmative defense to prosecution” that the defendant (1) “was not more
than three years older than the victim and of the opposite sex;” (2) “did not use duress, force,
or a threat against the victim at the time of the offense;” and (3) “was not required . . . to
register for life as a sex offender” and did not have “a reportable conviction or adjudication”
for a Texas sexual offense. Tex. Penal Code § 21.11(b).
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that he was arrested simply for engaging in uncoerced sexual activity with
another minor who was under the age of consent—acts that would not
necessarily evince an obvious risk that Fierros would engage in future sexual
violence. Moreover, Bonner testified that he made some attempt, albeit a
limited one, to investigate Fierros’s prior arrests and was unable to gather any
additional information regarding the incidents. Rivera has not supplied
evidence to contradict these assertions.
      Because the information available to Appellees was vague and
inconclusive, a jury could not find that a plainly obvious consequence of hiring
Fierros was that he would sexually assault a detainee. We hold that Rivera
has failed to allege facts sufficient to show that Appellees were deliberately
indifferent to known or obvious risks associated with hiring Fierros. Therefore,
the district court did not err in holding that Appellees were entitled to qualified
immunity on this claim.
B.    Inadequate Training and Supervision
      Rivera also argues that Appellees inadequately trained and supervised
jail employees, which constituted deliberate indifference and resulted in the
sexual assault. “For an official to act with deliberate indifference, the
[supervisor] must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Estate of Davis ex rel. McCully v. City of North Richland Hills,
406 F.3d 375, 381 (5th Cir. 2005) (quoting Smith v. Brenoettsy, 158 F.3d 908,
912 (5th Cir. 1998)). The Supreme Court has explained that supervisors’
“continued adherence to an approach that they know or should know has failed
to prevent tortious conduct by employees may establish the conscious disregard
for the consequences of their action—the ‘deliberate indifference’—necessary
to trigger . . . liability.” Brown, 520 U.S. at 407.


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                                 No. 16-10675
      According to Rivera, even though a prior incident of sexual abuse
occurred in July 2014, Appellees took little action to train and educate jailers
regarding sexual misconduct and failed to implement “proper protocols to
guard against sexual exploitation.” Rivera also contends that Appellees
“continued to allow female detainees to be taken by male jailers into the
multipurpose room, which they knew was a blind zone, unmonitored by jail
surveillance cameras, and did nothing to restrict access to this room, or to
install security cameras to deter sexual abuse there.”
      Appellees respond that all jailers, including Fierros, were required to be
licensed by the state and that the state licensing process included training on
sexual contact and proper interaction with inmates. Appellees also contend
that they provided training to jail employees that addressed sexual
misconduct, a sign was posted reminding jailers that “sex with inmates” was
prohibited, and Fierros signed a document when he was hired stating that he
understood there was to be no sexual contact with detainees. In addition,
Appellees point out that the multipurpose room was used by attorneys,
chaplains, and mental health workers for private consultations with detainees.
Appellees claim that they decided not to install cameras in that room out of
“concern for privacy.” Finally, Appellees highlight that the first incident of
sexual misconduct occurred in an area of the jail monitored by cameras and
was in fact discovered when another officer reported the conduct after
observing the incident on the video surveillance system. As a result, Appellees
argue that this prior incident would not have served as notice that the jail’s
existing system of video monitoring amounted to inadequate supervision.
      Other circuits have held that officials can be found deliberately
indifferent if they fail to modify training and policies after sexual assault
occurs in their facilities. Cash v. County of Erie, 654 F.3d 324, 336–39 (2d Cir.
2011); Tafoya v. Salazar, 516 F.3d 912, 914–20 (10th Cir. 2008). In Cash, a
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                                     No. 16-10675
pretrial detainee was sexually assaulted by a sheriff’s deputy at a detention
facility. 654 F.3d at 327. A few years earlier, a deputy at the same facility had
engaged in sexual acts with another pretrial detainee. Id. at 329. In response
to the prior incident, the facility’s superintendent merely “issued a one-page
memorandum entitled ‘Sexual Conduct,’ reminding facility personnel of [the
facility’s] ‘no-contact’ policy.” Id. at 330. The Second Circuit noted that “a
reasonable jury could have concluded that the [prior sexual assault] complaint
would have alerted [the sheriff] to the fact that mere proscriptions on sexual
contact between guards and prisoners had proved an insufficient deterrent to
sexual exploitation.” Id. at 336. Therefore, the court held that the jury could
find that the county and its sheriff were deliberately indifferent to their
“affirmative duty to protect prisoners from sexual exploitation.” Id. at 339.
       Likewise, a few months before Rivera was sexually assaulted, another
senior jailer sexually abused a female detainee at the Hale County Jail. This
event should have alerted Appellees that a substantial risk of serious harm
existed in their facility and that they needed to do more to protect detainees
from sexual exploitation. Yet the record suggests that Appellees did not make
any modifications to their training, policies, or supervision. Instead, Appellees
merely reminded jailers that they should not sexually exploit detainees and
posted a sign indicating that “sex with inmates” was prohibited. A jury could
conclude that these reminders did not constitute an adequate response to the
serious incident of sexual abuse that had recently transpired in the jail. See id.
at 330, 336. 2




       2 Rivera’s expert argued that Appellees would have been wise to implement additional
training and policies consistent with the PREA in response to the July 2014 incident. We
agree that the PREA may have been a helpful guide to Appellees in revising their training
and procedures, but we note that Appellees were not constitutionally obligated to conform
their training and policies to the PREA. We agree with the Second Circuit in Cash that
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                                      No. 16-10675
       Nonetheless, we must determine whether the constitutional right at
issue was clearly established at the time of Appellees’ alleged misconduct. In
doing so, we look to “cases of controlling authority in [this] jurisdiction at the
time of the incident which clearly established the rule” or “a consensus of cases
of persuasive authority such that a reasonable [official] could not have believed
that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999).
       It has long been clearly established that detainees like Rivera have the
right to be protected from sexual abuse, both at the hands of correctional
officers and fellow inmates, and that jail officials violate inmates’
constitutional rights “by showing ‘deliberate indifference’ to a substantial risk”
of sexual abuse “when the official[s] ‘know[] of and disregard[] an excessive
risk” of that harm occurring. Doe v. Robertson, 751 F.3d 383, 388 (5th Cir. 2014)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). By now, the substantial
risk of sexual assault in jails and prisons is well-documented and obvious. See,
e.g., 42 U.S.C. § 15601 (congressional finding in the PREA that “experts have
conservatively estimated that at least 13 percent of the inmates in the United
States have been sexually assaulted in prison”). Jail administrators are not
permitted to “bury their heads in the sand” and ignore these obvious risks to
the inmate populations they have an affirmative duty to protect. Walton v.
Dawson, 752 F.3d 1109, 1119 (8th Cir. 2014).
       Accordingly, this Court has previously held that jail officials who provide
“no training” on sexual abuse and leave their employees “virtually
unsupervised” are deliberately indifferent to the substantial risk that jailers
might abuse detainees. See Drake v. City of Haltom City, 106 F. App’x 897, 900
(5th Cir. 2004) (per curiam). Still, in the case at bar, Rivera concedes that



Appellees had discretion to determine what specific reforms were appropriate so long as they
took significant action to better safeguard the safety of detainees.
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officers at the jail received at least some state-sanctioned training aimed at
sexual assault prevention. She also agrees that Appellees took some limited
responsive action following the prior incident of sexual abuse. In other words,
we are not faced with a case in which jail officials took no preventive measures
to address the risk of sexual assault. And unfortunately, when Rivera was
sexually assaulted, our case law did not provide much clarity on the scope of
jail officials’ obligations with respect to protecting detainees from sexual abuse.
Indeed, Rivera has not identified any controlling Fifth Circuit authority
establishing the constitutional inadequacy of Appellees’ response to the risk of
sexual assault in their jail.
      On the contrary, one Fifth Circuit case may have led reasonable officials
in Appellees’ position to believe that their minimal response did not run afoul
of the Constitution. See Robertson, 751 F.3d at 391–93. In Robertson, we held
that federal officials did not violate clearly established law in failing to prevent
a subcontractor’s employee from sexually assaulting detainees while
transporting them out of an immigrant detention center. Id. Although one of
the subcontractor’s employees had previously sexually assaulted a detainee in
her cell, we noted that the previous incident “did not stem from any persistent
risk related to detainee transport” and thus did not warn the federal officials
that they needed to make changes to their transportation practices. Id. at 391–
92. Robertson is distinguishable from the instant case. Here, the July 2014
sexual abuse occurred in the same facility where Fierros later sexually
assaulted Rivera, and a jury could certainly find that this prior incident placed
Appellees on notice that they needed to do more to protect detainees in the
jail. 3 Nevertheless, in light of Robertson’s holding that federal officials did not



      3 Robertson also distinguished Cash, explaining: “Cash held that despite a rule (and
laws) prohibiting any sexual contact between inmates and jail staff, a jury could have
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                                    No. 16-10675
need to adjust their transportation policies after a previous sexual assault
occurred in their facility, reasonable officials in Appellees’ position could have
concluded that their limited response to the prior incident of sexual abuse did
not violate the Constitution.
      Furthermore, at the time of the sexual assault in this case, there was not
a consensus of persuasive authority such that reasonable officials in Appellees’
position would have known their actions were unlawful. Cash appears to be
the only case that is closely analogous to the present one. See 654 F.3d at 330,
336. Especially in light of Robertson, a single case from one of our fellow circuits
did not provide sufficient notice to Appellees that their actions were
inadequate. In addition, Tafoya bears some similarities to the case at hand,
but the facts in that case were far more extreme and egregious than those we
consider today. See 516 F.3d at 914–20. There, the Tenth Circuit held that a
county sheriff could be liable for a detention officer’s sexual assault of an
inmate because two other inmates had previously been sexually assaulted at
the same jail and, in response to those prior incidents, the sheriff “made only
minimal efforts to address the [facility’s] glaring safety problems.” Id. at 918–
21. In contrast to the present case, however, Tafoya involved a jail with an
“undisciplined culture of ‘anything-goes’” and “pervasive delinquency” by staff.
Id. at 919. Officers at the jail frequently violated the facility’s “no-contact”
policy, watched pornographic movies in the control room during their shifts,
and commented on which inmates they would like to have sex with. Id.
Reasonable officials in Appellees’ position might well have concluded that the
facts of Tafoya were distinguishable from the situation at the Hale County Jail.




concluded that, based on evidence of a prior rule violation, the county was deliberately
indifferent in failing to do more to prevent assaults.” 751 F.3d at 391 n.10.
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                                 No. 16-10675
      As a result, we conclude that it was not clearly established at the time of
the alleged misconduct that Appellees needed to make significant changes to
their training, supervision, and policies in response to the July 2014 incident
of sexual abuse. We hold that the district court did not err in concluding that
the defendants were entitled to qualified immunity with respect to Rivera’s
inadequate training and supervision claims.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment and its dismissal of Rivera’s claims against Appellees.




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