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

                             FOR THE TENTH CIRCUIT                         August 26, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
CRYSTAL CASTILLO; LISA GARELL;
ANGELA GAYTAN; DANA REEDER;
NANCY ROBINSON,

      Plaintiffs - Appellants,

v.                                                         No. 15-6203
                                                   (D.C. No. 5:12-CV-00448-HE)
RUBY JONES-COOPER; JOHN                                    (W.D. Okla.)
LARSEN; BUD DOLAN,

      Defendants - Appellees,

and

ANTHONY BOBELU, in his individual
capacity, a/k/a Tony Bobelu; JANE DOE;
RUSSELL HUMPHRIES, in his individual
capacity; MARY PAVLISKA; JOHN
DOE,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, GORSUCH, and PHILLIPS, Circuit Judges.
                  _________________________________

      Appellants Crystal Castillo, Lisa Garell, Angela Gaytan, Dana Reeder, and

Nancy Robinson appeal the grant of summary judgment dismissing, on qualified-


      *
         This order and judgment is not binding precedent, except under the doctrines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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
immunity grounds, their 42 U.S.C. § 1983 claims against Appellees Ruby Jones-

Cooper, an Oklahoma Department of Corrections (DOC) supervisor; John Larsen, a

DOC supervisor; and Bud Dolan, the State Capitol Park Administrator. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                      FACTS

      Appellants Crystal Castillo, Lisa Garell, Angela Gaytan, Dana Reeder, and

Nancy Robinson are former inmates of the DOC at Hillside Correctional. As part of

the prison’s offsite prison work program (PPWP), Appellants did landscaping and

grounds-maintenance work at the Oklahoma Governor’s Mansion. All five women

participated in the program at various times between February 2008 and August

2009. While at the Mansion, Appellants’ offsite supervisor was Anthony Bobelu, the

Mansion’s groundskeeper. No guards remained with the inmates at the Mansion.

      Appellants allege that Bobelu and Russell Humphries, a cook at the Mansion,

harassed and sexually assaulted them. The issue before this court does not directly

concern Bobelu and Humphries, so we will not recount the allegations Appellants

have made against them. At issue here is what Appellees knew and when they knew

it.

      Bobelu began working at the Mansion in 2006. Sometime in 2007, a temporary

employee (non-inmate) at the Mansion alleged, during a discussion Dolan initiated

about her poor-performance issues, that Bobelu had earlier referred to her as a

“switch hitter,” apparently meaning bisexual. R. vol. 3 at 559. Dolan investigated the

allegation but concluded that Bobelu had not said that. According to Dolan, that

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particular employee had constant performance problems, unlike Bobelu, who had

been an exemplary employee. Dolan believed that the employee was attempting to

divert attention from her performance issues. The employee was reassigned to

another location, and the investigation closed with no repercussions for Bobelu.

      In May 2009, Dolan twice observed Bobelu having a one-on-one interaction

with two different female inmates. He removed one inmate, Callie Johnson, from the

Mansion until she agreed that she would no longer be in one-on-one situations with

Bobelu. Dolan also issued verbal and written warnings to Bobelu, reminding him that

he should not be in one-on-one situations with inmates. In April 2009, Dolan saw a

woman he thought was Johnson driving Bobelu’s car. He reported the incident to his

supervisor but, because Johnson had been released eight months earlier, they decided

that the relationship “was not any of [their] business.” Id. at 566. At worst, they

considered it “poor judgment.” Id.

      On May 29, 2009, Gaytan, who had already been released, requested a letter of

recommendation from Dolan. Dolan agreed to write the letter and told her that she

could pick it up from either him or Bobelu. Gaytan told him that she didn’t want to

pick the letter up from Bobelu because she was offended by his actions. When

Gaytan came to pick up the letter, Dolan asked for more information, and Gaytan told

him about an incident when Bobelu came into an office where Gaytan was alone, shut

the door, and made unwelcome sexual advances. Gaytan also told him that Bobelu

had done the same to other inmates.



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      Dolan immediately changed Bobelu’s work assignment and told Bobelu about

Gaytan’s allegations. On June 1, Dolan notified the DOC about the situation, and its

Administrator of Internal Affairs authorized an investigation. The investigation

uncovered a number of other Bobelu incidents, including one in which two inmates

alleged that Bobelu had raped them. Bobelu denied all of the allegations. Ultimately,

the Department of Central Services (DCS) terminated Bobelu and recommended

prosecution.

      Appellants appeal the grant of summary judgment to Dolan, Jones-Cooper, and

Larsen, which the district court had based on qualified-immunity grounds.

                                    DISCUSSION

      We review de novo a district court’s grant of summary judgment. Hinds v.

Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir. 2008). In doing so, we view

the evidence and all reasonable inferences from it in the light most favorable to the

nonmoving party. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 533 (10th Cir.

2014). Summary judgment is appropriate “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).

      All Appellees have asserted a qualified-immunity defense. Qualified immunity

protects government officials from suit, not just from liability. Mitchell v. Forsyth,

472 U.S. 511, 527 (1985). “In resolving a motion to dismiss based on qualified

immunity, a court must consider whether the facts that a plaintiff has alleged make

out a violation of a constitutional right, and whether the right at issue was clearly

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established at the time of defendant’s alleged misconduct.” Brown v. Montoya, 662

F.3d 1152, 1164 (10th Cir. 2011) (quoting Leverington v. City of Colo. Springs, 643

F.3d 719, 732 (10th Cir. 2011)).

       To succeed on their claims, Appellants must show that the Appellees acted

with deliberate indifference to the risk that the inmates would be sexually assaulted.

Deliberate indifference requires that the official know of and disregard a substantial

risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words,

the official must know of facts that would allow the inference and must actually infer

that there is that risk. Id.

       The parties dispute whether a continuing-violations theory could apply in a

§ 1983 case. We assume without deciding that the continuing-violations theory

applies here. Thus, we will not address the parties’ discussion of whether these

incidents constitute discrete acts.

       1. Dolan is Entitled to Qualified Immunity

       Appellants allege that Dolan knew about Bobelu’s “multiple incidents of

inappropriate conduct.” Appellants’ Opening Br. at 15. They argue that Dolan

inadequately responded to Bobelu’s conduct by only issuing him oral warnings. Their

claims fail because Appellants have provided no evidence that Dolan knew that

Bobelu might sexually assault inmates.

       As evidence that Dolan knew about the risks that Bobelu presented, Appellants

point to Bobelu’s allegedly calling a temporary employee a “switch hitter.” R. vol. 3

at 559. Appellants do not argue that Bobelu would have violated the Constitution

                                          5
with this statement, but instead argue that “Dolan’s response to this allegation

indicates why Defendant Bobelu believed [that he would be able to succeed] and was

able to succeed in a sexual predator manner of assaulting multiple female inmates.”

Appellants’ Opening Br. at 16. But nothing overcomes Dolan’s position that he

disbelieved that Bobelu made the statement because he thought that the temporary

employee was trying to deflect attention from her constant poor-performance issues.

Until then, Dolan had not heard any complaints against Bobelu.

      In addition, Appellants rely on Dolan’s having seen Bobelu violate a rule

against being in one-on-one situations with female inmates, in particular, Johnson

and Garell. Again, nothing in the summary-judgment evidence suggests that these

interactions would reasonably cause Dolan to believe that Bobelu presented a risk of

sexual assault. At most, Dolan would be concerned about overfamiliarity between

Bobelu and the inmates. The deliberate-indifference standard is not a negligence

standard—Dolan had to actually know of the risk. We agree with the district court

that Appellants fail to show that Dolan knew of such a risk. Once he knew of the

risk—when Gaytan told him why she did not want to see Bobelu on May 29, 2009—

Dolan quickly removed Bobelu from his position. Apart from what Dolan learned

from Gaytan, Appellants rely only on their own beliefs that Dolan should have

inferred that Bobelu might sexually assault a worker based on unrelated disciplinary

incidents. Nothing in the record presents a genuine dispute of material fact that Dolan

knew of the risk of sexual assault before meeting with Gaytan. Thus, Appellants have

failed to show deliberate indifference sufficient to overcome qualified immunity.

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      2. Jones-Cooper is Entitled to Qualified Immunity

      Appellants allege that Jones-Cooper’s decision to require only eight hours of

training for PPWP supervisors was inadequate and exposed female inmates to an

unacceptable risk of sexual assault. We disagree.

      We are unpersuaded that eight weeks of training, rather than eight hours of

training, would have prevented Bobelu’s behavior. People should understand without

training that they shouldn’t sexually assault people because it’s a criminal act. See

Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998) (“Specific or extensive

training hardly seems necessary for a jailer to know that sexually assaulting inmates

is inappropriate behavior.”); see also Flores v. Cty. of L.A., 758 F.3d 1154, 1160 (9th

Cir. 2014) (“Given that the penal code prohibits sexual battery, it is not plausible that

inclusion in the Manual of [language instructing deputies not to sexually harass or

assault inmates] would have prevented the assault . . . .”); Andrews v. Fowler, 98 F.3d

1069, 1077 (8th Cir. 1996) (“[W]e cannot conclude that there was a patently obvious

need for the city to specifically train officers not to rape young women.”); Campbell

v. Anderson Cty., 695 F. Supp. 2d 764, 774 (E.D. Tenn. 2010) (“Here, the proper

course of conduct—refraining from sexual assault and rape—is patent and obvious;

structure[d] training programs are not required to instill it.” (quotation mark

omitted)). Thus, Jones-Cooper’s decision on the amount of training PWPP

supervisors received is irrelevant to the allegations here.

      Appellants claim that Jones-Cooper caused the sexual assaults by not training

Dolan sufficiently so that he would have known to terminate Bobelu based on the

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earlier incidents. To succeed on a claim for failure to train, the Appellants must prove

at the outset that the person who was allegedly inadequately trained violated the

Constitution. See Thomson v. Salt Lake Cty., 584 F.3d 1304, 1322 (10th Cir. 2009)

(discussing excessive force claims); see also Parrish v. Ball, 594 F.3d 993, 1002 (8th

Cir. 2010) (noting that “[t]he plaintiff must also prove that the alleged failure to train

‘actually caused’ the constitutional deprivation” (quoting Andrews, 98 F.3d at 1078)).

But as discussed above, Dolan was not deliberately indifferent and thus did not

violate any clearly established constitutional law in his reaction. Therefore Jones-

Cooper is also not responsible.

      3. Larsen is Entitled to Qualified Immunity

      Appellants claim that Larsen is liable for two separate reasons: first, for failure

to adequately train Bobelu and second, for deliberate indifference. Appellants’ claims

against Larsen for failure to train fail for the same reason the claims against Jones-

Cooper do.

      Appellants’ remaining allegations of deliberate indifference against Larsen are

insufficient to overcome qualified immunity. Again, deliberate indifference requires

actual knowledge of the risk of a constitutional violation. And yet, Appellants

repeatedly refer to Larsen’s “reckless” behaviors. Appellants’ Opening Br. at 23.

They refer to what Larsen “should” have done. Id. at 22. But Appellants have

provided no evidence of actual knowledge. Therefore, Appellants have failed to show

deliberate indifference.



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                            CONCLUSION

For the reasons stated above, we affirm the district court.


                                     Entered for the Court


                                     Gregory A. Phillips
                                     Circuit Judge




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