                                                            FILED
                                                United States Court of Appeals
                    UNITED STATES COURT OF APPEALS      Tenth Circuit

                                 TENTH CIRCUIT                     September 12, 2016

                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

HEATHER SPURLOCK; SOPHIA
CARRASCO; NINA CARRERA,

          Plaintiffs-Appellants/Cross-
          Appellees,

v.                                                 Nos. 12-2094; 12-2101;
                                                     12-2168; 12-2210
ANTHONY TOWNES, in his                      (D.C. No. 1:09-CV-00786-WJ-SMV)
individual capacity; BARBARA                             (D.N.M.)
WAGNER, in her individual capacity;
CORRECTIONS CORPORATION OF
AMERICA,

          Defendants-Appellees/Cross-
          Appellants.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.


      Heather Spurlock, Sophia Carrasco, and Nina Carrera (collectively,

“Plaintiffs”) sued Corrections Corporation of America (“CCA”) and Warden

Barbara Wagner (collectively, “Defendants”), as well as Officer Anthony



      *
             This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Townes, 1 after they were sexually assaulted by Officer Townes at a private

detention center operated by CCA. They alleged violations of the Eighth

Amendment, through the vehicle of 42 U.S.C. § 1983, and also of New Mexico

tort law. The case was eventually tried before a jury. The jury found for

Plaintiffs on some claims and Defendants on others, and awarded damages

accordingly. These appeals and cross-appeals ensued, and raised five issues: (1)

whether Defendants must pay the judgment against Officer Townes under N.M.

Stat. Ann. § 33-1-17; (2) whether the special verdict form properly allowed for

Plaintiffs’ comparative fault to be assessed; (3) whether the jury instructions

impermissibly limited Plaintiffs’ Eighth Amendment claim to a single theory of

liability; (4) whether the district court erred in awarding costs to Plaintiff Carrera

under Federal Rule of Civil Procedure 54(d); and (5) whether Defendants are

liable to pay the attorneys’ fees Plaintiffs were awarded against Officer Townes

and whether the district court’s calculation of those fees was in error.

      In order to resolve the second issue, involving comparative fault, we

certified to the New Mexico Supreme Court (“NMSC”) the question of whether

New Mexico recognizes the affirmative defense of comparative fault on

negligent-supervision claims. In response, the NMSC issued a decision

recognizing a new theory of vicarious liability (for which it rejected the use of


      1
           Although there are technically three defendants—Officer Townes,
Barbara Wagner, and CCA—Officer Townes elected not to participate in this
appeal. Accordingly, references to “Defendants” include only Ms. Wagner and
CCA; Officer Townes is referred to as “Officer Townes.”

                                          2
comparative-fault principles). It applied that theory to Plaintiffs’ vicarious-

liability claim—which had been dismissed on summary judgment—and concluded

that Defendants CCA and Ms. Wagner should be held liable for all compensatory

damages resulting from Officer Townes’s tortious conduct. Because the NMSC

held that full compensatory damages should be awarded to all Plaintiffs under the

vicarious-liability claim, and because New Mexico law ordinarily prohibits

double recovery of compensatory damages, the NMSC declined to resolve the

issue of comparative fault with respect to Plaintiffs’ negligent-supervision claim.

      We exercise jurisdiction pursuant to 28 U.S.C. § 1291. And, with the

NMSC’s rulings in mind, we affirm in part, vacate in part, reverse in part, and

remand for further proceedings.

                                          I

      In 2007, Officer Townes sexually assaulted all three Plaintiffs while they

were inmates at the Camino Nuevo Correction Center (“Camino”)—a New

Mexico all-female prison privately operated under contract by CCA—where

Officer Townes was employed as a prison guard. Plaintiffs sued under 42 U.S.C.

§ 1983, alleging violations of, inter alia, the Eighth Amendment and also sought

relief under New Mexico state law. 2


      2
             “To state a claim under § 1983, a plaintiff . . . must show that the
alleged [constitutional] deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); accord Yanaki v. Iomed,
Inc., 415 F.3d 1204, 1207 (10th Cir. 2005); Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). Neither the district court nor the
parties question the proposition that, during the events material here, CCA—a

                                          3
      Before trial, the district court issued several rulings pertinent to this

appeal. The court granted summary judgment for Plaintiffs on the issue of

liability as to the Eighth Amendment § 1983 claim against Officer Townes.

However, it refused to hold Defendant CCA strictly liable under a respondeat

superior theory for the constitutional harms caused by Officer Townes; it

reasoned in part that N.M. Stat. Ann. § 33-1-17 does not make private prison-

private company operating Camino under contract with the State of New
Mexico—and its employees, Defendant Wagner and Officer Townes, were acting
under color of state law and, thus, subject to suit under § 1983. Guided by
Supreme Court and persuasive circuit court authority, we have no reason to
question this collective judgment. See West, 487 U.S. at 54 (“Respondent, as a
physician employed by North Carolina to provide medical services to state prison
inmates, acted under color of state law for purposes of § 1983 when undertaking
his duties in treating petitioner’s injury. Such conduct is fairly attributable to the
State.”); id. at 55–56 (“The fact that the State employed respondent pursuant to a
contractual arrangement that did not generate the same benefits or obligations
applicable to other ‘state employees’ does not alter the analysis. It is the
physician’s function within the state system, not the precise terms of his
employment, that determines whether his actions can fairly be attributed to the
State.”); see Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir.
2003) (per curiam) (ruling as to a “private prison-management corporation”
operating a prison on the State of Texas’s behalf that such entities “and their
employees may be sued under § 1983 by a prisoner who has suffered a
constitutional injury. Clearly, confinement of wrongdoers—though sometimes
delegated to private entities—is a fundamentally governmental function”);
Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (holding as to a
private corporation operating a detention center under contract with a county that
it “no doubt [is] performing a public function traditionally reserved to the state”
and concluding that it “was acting under color of law”); see also Evans v.
Newton, 382 U.S. 296, 299 (1966) (“[W]hen private individuals or groups are
endowed by the State with powers or functions governmental in nature, they
become agencies or instrumentalities of the State and subject to its constitutional
limitations.”); Smith v. Cochran, 339 F.3d 1205, 1215–16 (10th Cir. 2003)
(“[P]ersons to whom the state delegates its penological functions, which include
the custody and supervision of prisoners, can be held liable for violations of the
Eighth Amendment.”).


                                          4
management companies like CCA strictly liable for the tortious conduct of their

employees. Further, the court granted summary judgment for Defendants as to all

but two of the claims against them (specifically, as to all but the Eighth

Amendment and negligent-supervision claims). Notably, in this regard, the court

granted Defendants summary judgment on Plaintiffs’ state-law vicarious-liability

claim. It explained that Defendants could not be held vicariously liable for

Officer Townes’s intentional torts under a respondeat superior theory because he

was not acting within the course and scope of his employment when he sexually

assaulted Plaintiffs.

      The case proceeded to trial: the jury was called on to decide liability

regarding only the two claims against Defendants that survived summary

judgment—i.e., the Eighth Amendment and negligent-supervision claims—and

also the damages to be awarded for the claims for which the court had already

determined that Officer Townes was liable. The jury found for Defendants on the

Eighth Amendment claim, and for Plaintiffs Spurlock and Carrasco—but not for

Plaintiff Carrera—on the negligent-supervision claim.

      As to the Eighth Amendment § 1983 claim against Officer Townes, each

Plaintiff was awarded some compensatory damages and $1,000,000 in punitive

damages. In addition, Plaintiffs Spurlock and Carrasco were awarded $51,000

and $130,000, respectively, in compensatory and punitive damages against

Defendants for the negligent-supervision claim.




                                         5
       In calculating the damages awards for the negligent-supervision claim, the

jury was instructed by the court as to each Plaintiff on a special verdict form,

which used essentially identical language, to “[s]tate in a percentage how

comparatively negligent Defendants CCA and Barbara Wagner were, and how

comparatively negligent [each Plaintiff] was.” Aplts.’ App. at 1268, 1274

(Special Verdict Form, filed Feb. 16, 2012). The jury found Ms. Spurlock fifty-

four percent comparatively negligent and Ms. Carrasco twenty percent

comparatively negligent, and reduced their compensatory-damages awards

accordingly.

       These cross-appeals ensued. Because they presented, inter alia, an

important open question regarding Defendants’ ability to raise a comparative-

fault defense against Plaintiffs under New Mexico law, we requested that the

NMSC exercise its discretion to accept the following certified question of state

law:

               When an inmate is sexually assaulted by a corrections officer,
               does New Mexico recognize the affirmative defense of
               comparative fault—permitting the comparison of the
               correctional facility/employer’s alleged negligence with the
               alleged fault of the inmate victim—for the purpose of reducing
               the amount of a judgment entered on the inmate’s state-law
               claim of negligent supervision of the tortfeasor-officer by the
               employer?

Order Certifying Question to NMSC (“Certification Order”), at 15 (Dec. 8, 2014).

In our Certification Order, we made clear that “[o]ur phrasing of this question

[was] not intended to limit the New Mexico Supreme Court’s scope of inquiry.



                                          6
Rather, we acknowledge[d] that the court may reformulate our question, and we

invite[d] the court to do so in any way it [found] helpful.” Id. Pending the

NMSC’s resolution of our certified question, we abated the appeal. See id.

      On March 14, 2016, the NMSC issued an opinion responding to our

Certification Order. See Spurlock v. Townes, 368 P.3d 1213 (N.M. 2016). In its

opinion, the NMSC “exercise[d] [its] discretion to reformulate the [certified]

question.” Id. at 1216 (citation omitted). It “h[e]ld that under New Mexico law

CCA and Wagner are vicariously liable for all compensatory damages caused by

the corrections-officer employee when he was aided in accomplishing his assaults

by his agency relationship with CCA and Wagner who were his employers[,]” and

“[n]o affirmative defense of comparative fault is available in this context.” Id.

      The NMSC explained that under an “aided-in-agency theory” of vicarious

liability, an employer may be held liable for the intentional torts of an

employee—even if the employee was acting outside the scope of his or her

employment—if the employee “was aided in accomplishing the tort by the

existence of the agency relation.” Id. at 1216–17 (quoting Ocana v. Am.

Furniture Co., 91 P.3d 58, 71 (N.M. 2004)). The NMSC established that, “[i]n

order to prevail under an aided-in-agency theory, Plaintiffs had to prove that

Townes was aided in accomplishing his assaults by his status as a corrections

officer that afforded him substantial power and control over Plaintiffs.” Id. at

1217–18. And the court concluded that Plaintiffs did prevail on this theory

because Officer Townes “used the authority vested in him by his position as a


                                          7
corrections officer to coerce Plaintiffs, who were inmates entrusted to his care,

into submitting to sexual assault and false imprisonment.” Id. at 1218.

      As a result of this holding, the NMSC concluded: “Because CCA and

Wagner are fully liable for [the compensatory damages] award under vicarious

liability principles regardless of any direct negligence on their part, we do not

reach the claim of negligent supervision nor any theories of comparative fault

that might have been applicable to that theory.” Id. at 1219. The NMSC

explained that it was “declin[ing] to determine the availability of an affirmative

defense alleging Plaintiffs’ comparative fault in a claim of liability for negligent

supervision of an intentional tortfeasor because the vicarious liability of CCA and

Wagner ma[de] th[at] determination unnecessary.” Id. at 1216. In this regard,

the NMSC referred to New Mexico’s prohibition on double recovery and noted its

desire to avoid addressing unnecessary certified issues which could result in it

handing down an advisory opinion. See id.

                                           II

      With the NMSC’s answer to our certified question in hand, we now address

all five claims that Plaintiffs previously raised on appeal—as well as a sixth

claim that Plaintiffs raise for the first time on appeal in their post-certification

briefing. Specifically, we address: (1) whether Defendants must pay the

judgment against Officer Townes under N.M. Stat. Ann. § 33-1-17; (2) whether

the district court’s special verdict form properly allowed for Plaintiffs’

comparative fault to be assessed regarding the negligent-supervision claim; (3)


                                           8
whether the court’s jury instructions impermissibly limited Plaintiffs’ Eighth

Amendment claim to a single theory of liability; (4) whether the court erred in

awarding costs under Federal Rule of Civil Procedure 54(d); and (5) whether

Defendants are liable to pay the attorneys’ fees Plaintiffs were awarded against

Officer Townes and whether the district court correctly calculated those fees. In

addition, we address Plaintiffs’ claim that the NMSC’s certified answer opened

the door for them to receive punitive damages for their vicarious-liability claim, a

claim the district court previously dismissed on summary judgment. We address

each of these six issues in order.

                                         A

      Regarding the first issue, we conclude that N.M. Stat. Ann. § 33-1-17 does

not require Defendant CCA to pay the full judgment against Officer Townes. We

review de novo the district court’s interpretation of a state law. See Cent. Kan.

Credit Union v. Mut. Guar. Corp., 102 F.3d 1097, 1104 (10th Cir. 1996).

      N.M. Stat. Ann. § 33-1-17 provides, in relevant part, that New Mexico’s

“corrections department may contract for the operation of any adult female

facility or for housing adult female inmates in a private facility with a person or

entity in the business of providing correctional or jail services to government

entities[,]” N.M. Stat. Ann. § 33-1-17(A), and that any such contract “shall

include provisions:”

             ....




                                          9
             (2) that the contractor assumes all liability caused by or
             arising out of all aspects of the provision or operation of the
             facility; [and]

             (3) for liability insurance or other proof of financial
             responsibility acceptable to the general services department
             covering the contractor and its officers, employees and agents
             in an amount sufficient to cover all liability caused by or
             arising out of all aspects of the provision or operation of the
             facility[.]

Id. § 33-1-17(D)(2)–(3). Plaintiffs contend that subsections (2) and (3) require

CCA to assume all liability for injuries caused by Officer Townes (its former

employee).

      The district court rejected Plaintiffs’ interpretation of section 33-1-17. The

court observed that it is “patently false” that § 33-1-17’s indemnification

language—which requires the contractor to assume “all liability” arising from the

contract—states that CCA is “strictly liable for any torts committed by its

employees.” Aplts.’ App. at 185–86. (Dist. Ct. Order, filed May 26, 2010).

Instead, the court explained, “any plaintiff suing CCA under the contract must

first show that CCA is actually liable for misconduct under some viable legal

theory.” Id. at 186. Thus, in the district court’s view, “CCA is merely agreeing

[in the contract] to hold New Mexico harmless for any liability which may arise

and to indemnify New Mexico for any expenses it incurs in defending against

such liability. CCA is not agreeing to be held strictly liable under a respondeat

superior theory for the constitutional violations of its employees.” Id. at 187.




                                         10
      We deem the district court’s reasoning to be sound and cogent. We uphold

its order for substantially these same reasons. In other words, we agree that N.M.

Stat. Ann. § 33-1-17 does not require Defendant CCA to assume liability for

injuries caused by Officer Townes. As a result, we affirm as to this issue.

                                         B

                                         1

      Turning to the second issue, involving the viability of an alleged

comparative-fault defense to Plaintiffs’ negligent-supervision claim and our

certified question, we begin with the NMSC’s holding regarding vicarious

liability under an aided-in-agency theory, because it impacts our disposition of

the comparative-fault negligent-supervision issue. In brief, we adopt the NMSC’s

vicarious-liability holding but only deem it applicable to Defendant CCA because

only CCA and not Ms. Wagner is named in the operative complaint.

Consequently, we conclude that the district court erred in its summary-judgment

ruling regarding vicarious liability. We therefore remand for the district court to

enter judgment in favor of all Plaintiffs and against Defendant CCA on the

vicarious-liability claim, with instructions to award full compensatory damages to

all Plaintiffs on that claim. But, for the reasons noted below, we conclude that

Plaintiffs cannot recover compensatory damages from either Defendant CCA or

Ms. Wagner based on their negligent-supervision claim and do not reach the

comparative-fault issue that we actually certified to the NMSC.




                                        11
      More specifically, we adopt the NMSC’s holding of vicarious liability

under an aided-in-agency theory. However, we apply that holding only to

Defendant CCA; only CCA is a named defendant in the vicarious-liability claim

of the operative complaint—not Ms. Wagner. Accordingly, we hold that

Defendant CCA is fully liable for Officer Townes’s intentional torts under an

aided-in-agency theory.

      It goes without saying that the NMSC is the final word regarding New

Mexico tort law. Defendants argue nevertheless that it would be unfair for us to

adopt the NMSC’s holding because the NMSC did not answer the certified

question, and because the NMSC “effectively amended the Plaintiffs’ complaint

to add [a] new theory of liability.” Aplees.’ Suppl. Mem. Br. at 1. We disagree.

      The vicarious-liability claim as to Defendant CCA was present in the

operative complaint and—even though it did not specifically mention an aided-in-

agency theory—it provides the ultimate predicate for CCA’s liability. 3 In its

certified answer, the NMSC simply clarified the scope and substance of

Plaintiffs’ vicarious-liability claim; in particular, it clarified the permissible

conditions under which relief could be obtained on that pleaded claim—notably,

      3
            See Second Amended Complaint ¶ 48 (filed Sept. 7, 2010)
(“Defendant CCA, the employer of both Defendant Townes and Defendant
Wagner, is vicariously liable for torts these two Defendants committed within the
scope and course of their duties as a corrections officer and as warden of the
Camino Nuevo facility.”); see also Aplees.’ Suppl. App. at 65 (Answer Br.)
(evincing Defendants’ acknowledgment before the NMSC in the certification
proceedings that “Plaintiffs . . . alleged that CCA was vicariously liable for
Townes’ torts” in the operative complaint).


                                           12
under an aided-in-agency theory. Moreover, as we see it, the NMSC’s holding

regarding vicarious liability is inextricably intertwined with the negligent-

supervision comparative-fault issue as to which we did seek certification;

notably, the NMSC declined to reach the latter issue in light of its holding

regarding the vicarious-liability claim. So, in factoring into our decisional

calculus the NMSC’s answer to our certified question (which queried the NMSC

about the comparative-fault negligent-supervision issue) we think it is proper to

consider and ultimately adopt that court’s associated vicarious-liability holding

and apply it to Defendant CCA.

      Furthermore, Defendants had an adequate opportunity to challenge on the

merits the aided-in-agency theory of vicarious liability when Plaintiffs asserted it

before the NMSC during the certification proceedings, but they did not do so;

instead, they elected merely to argue that the theory was not properly before the

NMSC. That Defendants chose not to respond on the merits to Plaintiffs’

arguments regarding the aided-in-agency theory—for strategic reasons or

otherwise—does not mean that they were unfairly deprived of an opportunity to

do so. 4 Therefore, in our view, Defendants do not have a cogent argument that


      4
             In fact, Defendants had special notice that they should respond to all
state-law arguments raised in the NMSC because our Certification Order made
clear that “Our phrasing of th[e] question [wa]s not intended to limit the New
Mexico Supreme Court’s scope of inquiry[,]” and explicitly “invite[d]” the
NMSC to reformulate the certified question “in any way it [found] helpful.”
Certification Order at 15.



                                         13
they would be denied due process or otherwise treated unfairly if we adopt the

NMSC’s holding on vicarious liability. See, e.g., West v. Grand Cty., 967 F.2d

362, 367 (10th Cir. 1992) (“The individual entitled to due process protection

needs only to be given notice and an opportunity to respond.”); accord Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (“The essential

requirements of due process, and all that respondents seek or the Court of

Appeals required, are notice and an opportunity to respond.”).

      Thus, having properly adopted the NMSC’s holding and applied it to

Defendant CCA, we reverse the district court’s grant of summary judgment for

Defendants on the vicarious-liability claim, and remand with instructions for the

district court to enter judgment in favor of all Plaintiffs on that claim against

Defendant CCA, and to award them full compensatory damages.

                                               2

      Because we adopt the NMSC’s decision regarding vicarious liability, we

decline to reach the merits of Plaintiffs’ negligent-supervision comparative-fault

challenge—which was the issue that we certified to the NMSC. Specifically, as

to Defendant CCA, we deem the issue moot. Because Plaintiffs will recover all

compensatory damages against Defendant CCA under the vicarious-liability

claim, and because they cannot recover for the same harm twice under New

Mexico law, see, e.g., Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop., Inc., 301

P.3d 387, 400 (N.M. 2013); Hood v. Fulkerson, 699 P.2d 608, 611 (N.M. 1985),

we agree with the NMSC that the negligent-supervision comparative-fault


                                          14
challenge is moot as to Defendant CCA. In other words, because Plaintiffs

cannot recover anything, as a matter of law, on their negligent-supervision claim

from Defendant CCA, we cannot afford any relief on that claim, and Plaintiffs’

comparative-fault challenge with respect to that claim is therefore legally

irrelevant—viz., it matters not whether a negligent-supervision recovery from

Defendant CCA could be permissibly reduced for comparative fault because there

will not be such a recovery for negligent supervision from CCA.

      However, importantly, we do not apply the NMSC’s aided-in-agency

vicarious-liability holding to Defendant Wagner because she was not a named

defendant in the vicarious-liability claim of the operative complaint. We

acknowledge that because Ms. Wagner was not a named defendant under the

vicarious-liability claim, the double-recovery rationale—stemming from

Plaintiffs’ full relief on that claim—would not seemingly apply to her. If that

were true, then Plaintiffs conceivably would not be precluded, as a matter of law,

from recovering relief against Ms. Wagner on their negligent-supervision claim

and the viability of a comparative-fault defense relative to such a claim would

still be a question for us to resolve. However, Plaintiffs’ supplemental briefing

does not evince any intention of continuing to prosecute their negligent-

supervision claim against Ms. Wagner, so long as they are permitted to receive

full relief on their vicarious-liability claim against Defendant CCA.

      Specifically, Plaintiffs have indicated that their negligent-supervision

claim—and thus the issue of comparative fault—“drops out of the analysis[,]” if


                                        15
they prevail on their vicarious-liability claim against Defendant CCA. Aplts.’

Suppl. Mem. Br. at 2; accord id. at 4, 8. And, perhaps more to the point, with

their gaze seemingly focused on the recovery of damages on their vicarious-

liability claim from Defendant CCA, Plaintiffs have not specifically sought in

explicit terms relief against Ms. Wagner on their negligent-supervision claim.

Accordingly, at least under the circumstances present here, where the condition

of Plaintiffs’ recovery of full relief from Defendant CCA on the vicarious-

liability claim is satisfied, we conclude that Plaintiffs have effectively waived

and abandoned—through the averments of their supplemental briefing or the lack

thereof—any negligent-supervision claim against Ms. Wagner. See, e.g., Bronson

v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007); Tran v. Trs. of State Colls. of

Colo., 355 F.3d 1263, 1266 (10th Cir. 2004). Consequently, we have no need to

decide as to Ms. Wagner whether the district court erred in permitting the

comparative-fault defense to be presented to the jury on the negligent-supervision

claim.

         To summarize: we reverse the district court’s grant of summary judgment

for Defendants on the vicarious-liability claim, and remand with instructions to

enter judgment for all Plaintiffs on the vicarious-liability claim as to Defendant

CCA. Due to New Mexico’s prohibition on double recovery, and Plaintiffs’

effective waiver of their negligent-supervision claim as to Defendant Wagner, we

need not, and thus do not, resolve any issues regarding the negligent-supervision




                                         16
claim—notably, the issue of whether a comparative-fault defense to such a claim

is viable under the circumstances here.

                                               C

      Turning to the third issue in the case, we reject Plaintiffs’ claim that the

jury instructions impermissibly limited their Eighth Amendment claim to a single

theory of liability. “We review ‘a district court’s refusal to give a requested

[jury] instruction for abuse of discretion[,]’ [b]ut we review the jury instructions

de novo to determine ‘whether, as a whole, they accurately state the governing

law.’” Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1251 (10th Cir. 2013)

(citation omitted) (quoting United States v. Crockett, 435 F.3d 1305, 1314 (10th

Cir. 2006)).

      At the outset, we hold that Plaintiffs’ jury-instructions challenge is fatally

infirm because they failed to identify in their opening brief an additional CCA

policy or custom that was supported by sufficient evidence to warrant a jury

instruction, beyond the policy or custom that was the subject of the district

court’s instruction—viz., a policy or custom of discouraging the reporting of staff

misconduct. 5 Specifically, in order to establish CCA’s liability under 42 U.S.C. §


      5
             Early in the district court litigation, Defendants moved for summary
judgment on, inter alia, Plaintiffs’ Eight Amendment claim on the ground that
there was “no evidence that CCA had a policy or custom that was the moving
force behind Mr. Townes’[s] conduct.” Aplts.’ App. at 304 (Defs.’ Mot. for
Summ. J., filed Sept. 29, 2010). Plaintiffs responded by setting forth several
CCA policies that they alleged were constitutionally infirm, one of which was
that Defendant CCA had a policy of discouraging “the reporting of staff
misconduct.” Id. at 481. The district court found that Plaintiffs had raised a

                                          17
1983, Plaintiffs were obliged to point to a policy or custom of CCA “that caused

their injury.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997); see

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[A] local government

may not be sued under § 1983 for an injury inflicted solely by its employees or

agents. Instead, it is when execution of a government’s policy or custom . . .

inflicts the injury that the government as an entity is responsible under § 1983.”);

Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (“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.”). 6

      In their opening brief, Plaintiffs insist that the district court erred “[b]y

focusing on the search for a single, express policy or policymaking decision by

Defendant Wagner”; as a consequence, they reason, it “ignored the combined


genuine issue of material fact as to whether Defendant CCA had a policy of
discouraging the reporting of staff misconduct, but there was no evidence to
support any of Plaintiffs’ other theories for § 1983 liability. See id. at 500. As a
result, at trial, the jury was instructed that Plaintiffs could only succeed on their
Eighth Amendment claim if they proved that Defendant “CCA had an official
policy or custom of discouraging inmate complaints.” Id. at 1291 (Instruction
No. 13, filed Feb. 15, 2012). During the remainder of their time in district court,
Plaintiffs merely asserted general objections to limiting their Eighth Amendment
claim to the single theory permitted by the summary-judgment proceeding; they
never identified evidence supporting any other theory of § 1983 liability.
6
       In addressing Plaintiffs’ Eighth Amendment § 1983 claim, the district court
applied the legal principles of municipal liability established by Monell and its
progeny to CCA. In other words, for purposes of this claim, the court assessed
the scope of CCA’s liability just as if it were a unit of local government.
Plaintiffs do not object on appeal to the application of Monell’s rubric to CCA in
the context of this claim, though they do contend in their instructional challenge
that the court misapplied that rubric.

                                          18
effect of the circumstantial evidence showing deliberate ignorance from other

angles.” Aplts.’ Opening Br. at 55. In this regard, Plaintiffs stress that “[a]

conscious or deliberate choice to disregard the risk of harm can reasonably be

inferred from the fact” that Officer Townes engaged in a pattern of tortious

conduct that “was viewable on security cameras” or otherwise noticeable. Id. at

54.

      Plaintiffs’ argument is fundamentally misguided, however, because it

conflates their burden to establish that CCA’s agents acted pursuant to a policy or

custom—such that their conduct may be properly attributed to CCA—with their

additional obligation to show that CCA’s conduct involved the requisite

culpability, that is, deliberate indifference. See Brown, 520 U.S. at 404 (“[I]t is

not enough for a § 1983 plaintiff merely to identify conduct properly attributable

to the municipality. The plaintiff must also demonstrate that, through its

deliberate conduct, the municipality was 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 . . . .”); Simmons v. Uintah Health Care Special

Dist., 506 F.3d 1281, 1284 (10th Cir. 2007) (“When employees take actions

specifically authorized by policy or custom, their actions can be fairly said to be

the municipality’s.”); see also City of Canton v. Harris, 489 U.S. 378, 392 (1989)

(“[W]hile claims such as respondent’s—alleging that the city’s failure to provide

training to municipal employees resulted in the constitutional deprivation she

suffered—are cognizable under § 1983, they can only yield liability against a


                                         19
municipality where that city’s failure to train reflects deliberate indifference to

the constitutional rights of its inhabitants.” (emphasis added)); Barney, 143 F.3d

at 1307 (“The deliberate indifference standard may be satisfied when the

municipality has actual or constructive notice that its action or failure to act is

substantially certain to result in a constitutional violation, and it consciously or

deliberately chooses to disregard the risk of harm. In most instances, notice can

be established by proving the existence of a pattern of tortious conduct.” (citation

omitted)); cf. Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,

770 (10th Cir. 2013) (“A challenged practice may be deemed an official policy or

custom for § 1983 municipal-liability purposes if it is a formally promulgated

policy, a well-settled custom or practice, a final decision by a municipal

policymaker, or deliberately indifferent training or supervision.” (emphasis

added)).

      In other words, deliberate indifference is not legally actionable under §

1983 in a vacuum; it must pertain to a substantial risk of unconstitutional effects

resulting from municipal conduct—viz., conduct undertaken pursuant to a

municipality’s policy or custom. Therefore, it is not enough for Plaintiffs to

point to circumstantial proof that establishes that Defendant CCA possessed a

generally callous or reckless mindset regarding the conduct of its agents—that is,

a mindset rising to the level of deliberate indifference. They must identify an

actionable CCA policy or custom.




                                          20
      In their reply brief, Plaintiffs endeavor to remedy this fatal deficiency by

alluding to a second ostensible policy or custom—“a failure to supervise[,]”

Aplts.’ Reply Br. at 51—but this identification of an additional policy comes too

late. See, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir.

2011); Wheeler v. Comm’r of Internal Revenue, 521 F.3d 1289, 1291 (10th Cir.

2008). In any event, even if we were inclined to assess the viability of Plaintiffs’

instructional challenge in light of this late-blooming policy or custom, they would

not prevail. Despite Plaintiffs’ vigorous efforts to demonstrate otherwise, they

have failed to present sufficient evidence that would have warranted a failure-to-

supervise instruction. More specifically, they have failed to present adequate

evidence that Defendant CCA was on “actual or constructive notice” that its

failure to supervise was “substantially certain to result in a constitutional

violation, and it consciously or deliberately [chose] to disregard the risk of

harm.” Barney, 143 F.3d at 1307; see Brown, 520 U.S. at 397 (“As our decision

in Canton makes clear, ‘deliberate indifference’ is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.”); see also City of Canton, 489 U.S. at 396 (Brennan,

J., concurring) (“Where a § 1983 plaintiff can establish that the facts available to

city policymakers put them on actual or constructive notice that the particular

omission is substantially certain to result in the violation of the constitutional

rights of their citizens, the dictates of Monell are satisfied.”).




                                           21
      For example, Plaintiffs have failed to adequately demonstrate that

Defendants were put on actual or constructive notice by a pattern of officer

sexual assaults at Camino before Officer Townes assaulted them. See Brown, 520

U.S. at 411 (“A plaintiff must demonstrate that a municipal decision reflects

deliberate indifference to the risk that a violation of a particular constitutional or

statutory right will follow the decision.” (emphasis added)); Barney, 143 F.3d at

1308 (“[P]laintiffs’ 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.”); see also City of Canton, 489 U.S. at 385 (“[O]ur first inquiry in any case

alleging municipal liability under § 1983 is the question whether there is a direct

causal link between a municipal policy or custom and the alleged constitutional

deprivation. (emphases added)).

      In other words, in our view, Plaintiffs’ evidence did not present a triable

issue regarding whether Defendants were deliberately indifferent to a substantial

risk that their purported failure-to-supervise policy would cause an Eighth

Amendment violation. Consequently, Plaintiffs have failed to show that the

evidence adduced at trial could have supported Eighth Amendment liability for a

policy other than discouraging inmate complaints. Accordingly, the district court




                                          22
did not err in charging the jury only regarding the policy of discouraging inmate

complaints.

                                                D

       Next, we conclude that the district court should revisit the fourth issue

remaining in the case, regarding Federal Rule of Civil Procedure 54(d) costs.

Both parties acknowledge that if we adopt the NMSC’s ruling regarding vicarious

liability (as we have), the cost equation will be dramatically altered, not the least

of which because Plaintiff Carrera will now be a prevailing party as to the

vicarious-liability claim, and because there will be no reduction for comparative

fault. So, we vacate and remand for the district court to address this issue in the

first instance.

                                           E

       On the fifth issue, for much the same reason that we vacate and remand as

to costs, we do so as to attorneys’ fees. Adopting the NMSC’s ruling scrambles

the decisional chess board, and we deem it prudent to allow the district court to

address in the first instance whether to allow attorneys’ fees. Moreover, we

decline Plaintiffs’ request for appellate attorneys’ fees, which they advance in

skeletal fashion—without citation to pertinent authorities or argument—only in

their opening brief and in their supplemental brief. Cf. Zinna v. Congrove, 755

F.3d 1177, 1183 (10th Cir. 2014) (“Because there is no argument, authority, or

record citations . . . the appellate fee issue is not sufficiently raised on appeal.”).




                                           23
                                          F

       Finally, in their post-certification briefing, Plaintiffs seek punitive damages

based on their newly-obtained victory on the vicarious-liability claim. Because

we adopt the NMSC’s view as to vicarious liability, we remand for the district

court to address Plaintiffs’ punitive-damages claim in the first instance. More

specifically, we leave to the district court to decide in the first instance whether

Plaintiffs should be allowed to pursue such punitive damages and, if so, what

procedures should govern the resolution of this damages issue. We do this

recognizing that the vicarious-liability claim for which Plaintiffs seek punitive

damages never went to the jury, and that, prior to their post-certification

supplemental briefing, Plaintiffs did not argue on appeal for punitive damages

relative to this claim. 7

                                          III

       In sum, for the foregoing reasons, we affirm in part, vacate in part,

reverse in part, and remand for further proceedings consistent with this order




       7
              Plaintiffs initially sought punitive damages for their vicarious-
liability claim in the district court, but after that court dismissed their vicarious-
liability claim on summary judgment, they did not raise their request for punitive
damages on that claim in their pre-certification appellate briefing. They argue
that the certified answer put their request for punitive damages for vicarious
liability back into play. We agree, but at this time only to the extent that
Plaintiffs should have an opportunity to argue for punitive damages before the
district court; we do not opine on the merits of those arguments.

                                          24
and judgment.



                ENTERED FOR THE COURT


                Jerome A. Holmes
                Circuit Judge




                 25
