                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             November 14, 2016
                                   PUBLISH                  Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 JAMES DURKEE,

       Plaintiff-Appellee,
 v.                                                   No. 16-1003
 SHERIFF JOHN MINOR, in his
 individual capacities; SERGEANT
 RON HOCHMUTH, in his individual
 capacity,

       Defendants-Appellants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 14-CV-745-WYD-MJW)


Melanie B. Lewis (Josh A. Marks with her on the brief), Berg, Hill, Greenleaf,
Ruscitti LLP, Boulder, Colorado, for Defendants-Appellants.

Andrew McNulty (David A. Lane with him on the brief), Killmer, Lane & Newman,
LLP, Denver, Colorado, for Plaintiff-Appellee.


Before LUCERO, BALDOCK, and BACHRACH, Circuit Judges.


BALDOCK, Circuit Judge.


      Defendant John Minor is the Sheriff of Summit County, Colorado. Defendant

Ron Hochmuth is a sergeant with the Summit County Sheriff’s Department. Plaintiff
James Durkee sued them both in their individual capacities under 42 U.S.C. § 1983.

Plaintiff asserts Defendants violated his Eighth Amendment right to be free from

cruel and unusual punishment when he was attacked by Ricky Michael Ray Ramos,

a fellow inmate, at the Summit County Detention Center. In a written order, the

district court denied Defendants qualified immunity in the context of their motion

for summary judgment and they appealed. Durkee v. Minor, 2015 WL 8145257 (D.

Colo. 2015) (unpublished). To the extent we may exercise jurisdiction over the

district court’s decision, we do so under 28 U.S.C. § 1291. See Lynch v. Barrett,

703 F.3d 1153, 1158–60 (10th Cir. 2013).

      Both the Supreme Court and this Court have spoken repeatedly on the defense

of qualified immunity and our jurisdiction to review the denial of the same prior to

final judgment. See, e.g., Johnson v. Jones, 515 U.S. 304 (1995); Lewis v. Tripp,

604 F.3d 1221 (10th Cir. 2010). We will not reinvent the wheel here. For now,

suffice to say Defendants’ claim to qualified immunity imposes the burden on

Plaintiff to show Defendants violated a constitutional right that was clearly

established under the facts of this case at the time of the violation. Lynch, 703 F.3d

at 1159. In deciding whether Plaintiff has met his burden, we generally are not

empowered to consider which facts the parties might be able to prove at trial. Id. at

1160 & n.2. Rather, we may ask only whether the facts the district court found

support Plaintiff’s claim that Defendants violated clearly established law. Id. at

1159. In other words, if the district court concluded a reasonable jury could find

                                          2
“certain specified facts” in favor of Plaintiff, we “usually must take them as

true—and do so even if our own de novo review of the record might suggest

otherwise as a matter of law.” Id. (quoting Lewis, 604 F.3d at 1225). Applying the

appropriate legal standards, we affirm as to Defendant Hochmuth and reverse as to

Defendant Minor.

                                          I.

      The facts the district court recited are sufficient to justify the denial of

qualified immunity to Defendant Hochmuth. The district court’s factual statement,

by which we are bound in the current context, reads as follows:

      Inmate Ricky Michael Ray Ramos (“Ramos”) had a history of
      aggressive behavior at the jail, and had been charged with several
      violations of jail rules on several occasions for threatening behavior
      towards jail staff, including a threat to stab a deputy in the neck, and
      toward other inmates, including the Plaintiff. Ramos had threatened
      Plaintiff shortly after Plaintiff’s arrival at the jail, and Plaintiff
      requested that he be reassigned to another housing pod away from
      Ramos. After an argument between Ramos and Plaintiff, Plaintiff again
      expressed concern about Ramos’ aggression toward him. A deputy
      issued an incident report stating that “[f]or future reference [Plaintiff]
      and Ramos cannot attend any programs together or ever be in the
      hallways or [booking] passing.” Jail staff, including Defendant
      Hochmuth, acknowledged and initialed receipt of the notice.

      On December 28, 2012, Ramos was being escorted back from a court
      proceeding by Defendant Hochmuth, and was unshackled in the booking
      area of the jail, which is adjacent to the professional visitation room.
      At that time, Plaintiff was in the visitation room, meeting with a mental
      health counselor. There are windows in the visitation room and those
      meeting inside are visible to those in the booking area. Plaintiff states
      that he saw both Ramos and Defendant Hochmuth in the booking area
      through the visitation room window. Defendant Hochmuth contends he
      did not see the Plaintiff in the visitation room. Defendant Hochmuth

                                          3
      proceeded to unshackle Ramos in the booking area, and instructed him
      to return to his housing pod. After taking one or two steps toward the
      housing pod door, Ramos suddenly turned around and ran into the
      visitation room through its unlocked door and assaulted Plaintiff.
      Although the altercation was brief, Plaintiff suffered a facial fracture
      from the assault.

Durkee, 2015 WL 8145257, at *1 (brackets in original).

      In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held a prison

official’s deliberate indifference to a substantial risk of serious harm to an inmate

violates the Eighth Amendment. To establish deliberate indifference on the part of

Defendant Hochmuth, Plaintiff must prove that Hochmuth knew of and disregarded

a substantial risk to Plaintiff. 1 See id. at 837–38. In other words, Hochmuth must

have been aware of facts from which he could draw the inference that a substantial

risk of serious harm to Plaintiff existed, and he must also have drawn the inference.

Id. at 837. Defendant Hochmuth does not dispute that he knew Ramos posed a

substantial risk of serious harm to Plaintiff “generally.” Instead, Hochmuth tells us

he never appreciated the risk to Plaintiff that Ramos posed while in the booking area

because he did not see Plaintiff in the visitation room before he unshackled Ramos.



      1
         Plaintiff’s repeated reference in his brief to an erroneous legal standard that
would hold Defendant Hochmuth liable for an Eighth Amendment violation if he
should have known Plaintiff was in the visitation room is unacceptable. To establish
deliberate indifference, the law requires actual knowledge. Farmer plainly tells us
so: “We . . . hold that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837 (emphasis added).

                                           4
Defendant Hochmuth insists that without specific knowledge of facts from which he

could infer Plaintiff was at imminent risk of attack while in the visitation room, he

could not have been deliberately indifferent to Plaintiff’s safety.

      Defendant Hochmuth is quite correct in suggesting that “an official’s failure

to alleviate a significant risk that he should have perceived but did not, while no

cause for condemnation, cannot . . . be condemned as the infliction of punishment.”

Id. at 838. The Supreme Court has pointed out, however, that if the risk is obvious

such that a reasonable man would realize it, a jury might infer that a defendant did

in fact realize it. “[B]ut the inference cannot be conclusive, for we know that people

are not always conscious of what reasonable people would be conscious of.” Id. at

842 (internal quotations omitted). This means that where the facts as found by the

district court show—as they do here—that a substantial risk of an inmate attack

against Plaintiff was well-documented and expressly noted by prison officials prior

to the attack in question, and those facts further show—as they do here—that

Defendant Hochmuth was informed of and acknowledged the risk and was

accompanying Ramos in an area where Ramos and Plaintiff were visible to each

other, such facts are sufficient to permit a jury to find Hochmuth had actual

knowledge of the risk and disregarded it. Id. at 842–43.

      As the district court recited the facts, the success of Defendant Hochmuth’s

defense of this suit may very well turn on whether a jury finds credible his testimony

that he never saw Plaintiff in the visitation room. Of course, no one other than

                                          5
Hochmuth may testify to what he actually saw while preparing to unshackle Ramos

in the booking area. But others may testify to the surrounding circumstances and

what they witnessed. Obviously, Ramos saw Plaintiff through the large rectangular

window providing visual access from the booking area into the visitation room.

Plaintiff says he saw Ramos in the booking area through the same window. Based

both on the district court’s factual findings and what Farmer teaches us, a jury could

reject Defendant Hochmuth’s testimony and infer that he too saw Plaintiff in the

visitation room before unshackling Ramos.         “[W]hether a prison official had

the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial evidence.”

Id. at 842. The question whether Defendant Hochmuth was aware of facts from

which he drew the inference that a risk of harm to Plaintiff existed while in the

visitation room is for the factfinder. 2

                                           II.

       While the district court’s factual findings are sufficient at this stage to

overcome Defendant Hochmuth’s qualified immunity defense, we cannot say the


       2
         To complete our qualified immunity analysis as to Defendant Hochmuth, we
easily conclude, based on the district court’s findings and the state of the law during
the relevant time period, that a reasonable officer cognizant of Plaintiff’s presence
in the unsecured visitation room would have understood that unshackling Ramos in
the booking area posed a substantial risk of harm to Plaintiff in violation of the
Eighth Amendment. See Lynch, 703 F.3d at 1160–61. Therefore, the law on which
Plaintiff bases his claim against Hochmuth was clearly established at the time of the
subject incident.

                                           6
same for its findings as they bear upon Defendant Minor’s defense. Those findings

are as follows: (1) Defendant Minor was responsible for managing the staff at the

detention center and for implementing the policies and procedures under which the

center operated; (2) the policy of the detention center was to unshackle inmates

in the booking area adjacent to the unlocked professional visitation room once

they returned from court; and (3) Defendant Minor undertook a post-assault review

and determined further inquiry into the conduct of Defendant Hochmuth was

unwarranted. Based on these facts, the court concluded: “A fact finder could impose

liability against Defendant Minor in his individual capacity by virtue of his control

or direction of the jail staff, or by his failure to properly supervise staff members,

including Defendant Hochmuth. Accordingly, summary judgment on this issue is

precluded.” Durkee, 2015 WL 8145257, at *4.

      The district court was wrong to conclude—based on its limited findings—that

a jury could hold Defendant Minor liable to Plaintiff in his individual capacity.

Plaintiff’s claim against Defendant Minor in his individual capacity amounts to a

claim of direct supervisory liability. 3 To establish such liability, Plaintiff must show

Defendant Minor’s “direct personal responsibility” for the claimed deprivation of

his Eighth Amendment right. Porro v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010)



      3
         While Plaintiff also sues Defendant Minor in his official capacity, we have
no jurisdiction over the district court’s decision to deny him summary judgment in
such capacity. See Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015).

                                           7
(emphasis in original) (quoting Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.

2006)). “Simply put, there’s no special rule of [individual capacity] liability for

supervisors. The test for them is the same as the test for everyone else.” Id. at 1328.

Accordingly, Plaintiff must prove Defendant Minor caused his injury with a state of

mind amounting to deliberate indifference for Plaintiff’s safety. See Dodds v.

Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010) (recognizing the elements of

individual supervisory liability as (1) personal involvement, (2) causation, and

(3) a culpable state of mind equal to that required to establish the underlying

constitutional violation).

      In Dodds, we decided a sheriff could be held individually liable for his

deliberately indifferent maintenance of a policy that prevented arrestees from posting

preset bail for no legitimate reason, in violation of the Fourteenth Amendment’s

liberty guarantee. Id. at 1206. Plaintiff tells us the parallels of his case to Dodds are

clear. To us those parallels are clear as mud. Dodds involved a policy or procedure

that was constitutionally infirm in the overwhelming majority of its applications, if

not on its face. See also Wilson v. Montano, 715 F.3d 847, 857–58 (10th Cir. 2013)

(relying on Dodds to hold a warden and sheriff could be held individually liable for

maintaining a policy permitting prolonged warrantless detentions in violation of the

Fourth Amendment). The policy Plaintiff challenges here presents us with no such

dilemma. The detention center’s policy of unshackling inmates in the booking area

next to the visitation room does not appear problematic on its face; nor has it proven

                                           8
problematic in its application—at least on the record before us—save the present

isolated incident. See Lynch, 703 F.3d at 1160 n.2 (where a district court’s findings

are insufficient to withstand a qualified immunity defense, the court of appeals may

look behind the district court’s order to ascertain whether the record supports

plaintiff’s claim).

      Apart from a supervisor’s promulgation of the sort of policy at issue in Dodds,

some of our sister circuits have held a supervisor may cause a constitutional

violation when he has actual knowledge of subordinates’ past constitutional

violations but does nothing to stop future occurrences. Dodds, 614 F.3d at 1212

(Tymkovich, J., concurring) (citing cases). Nothing in the present record suggests,

however, that the policy in question here led to any constitutional violations prior

to Ramos’s assault on Plaintiff. That Defendant Minor undertook a post-assault

review and determined further inquiry into the conduct of Defendant Hochmuth was

unwarranted does not assist Plaintiff. As we explained in Cordova v. Aragon, 569

F.3d 1183, 1194 (10th Cir. 2009), “basic principals of linear time prevent us from

seeing how conduct that occurs after the alleged violation could have somehow

caused that violation.” (emphasis in original).

      We suppose cases of supervisory liability under § 1983 are not necessarily

limited to those two factual scenarios we have just outlined. But whether Plaintiff’s

theory of causation is based on an improper or inadequate policy or something else

such as failure to train or supervise, the fact remains that he must still present record

                                           9
evidence sufficient to permit a jury to find that Defendant Minor caused his injury

while deliberately indifferent to his safety. This Plaintiff has not done, which

perhaps accounts for the district court’s inadequate findings.       That Plaintiff

misunderstands his burden is well illustrated by his argument to both the district

court and us that Defendant Minor’s “inadequate training and supervision of

Hochmuth and others at the jail led to Hochmuth’s deliberate indifference to

[Plaintiff’s] safety.” Apellee’s Br. at 35 (emphasis added); see also Durkee, 2015

WL 8145257, at *3. Plaintiff’s argument in support of his individual liability claim

against Defendant Minor amounts to little more than Minor should be held liable

because he was in charge of the detention center. This simply is not enough to hold

Defendant Minor liable in his individual capacity.

      AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. 4




      4
     Defendants’ outstanding motion to file their Appendix Vol. II under seal is
GRANTED.

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