                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3704
                         ___________________________

                                      S.M., et al.

                       lllllllllllllllllllll Plaintiffs - Appellees

                                           v.

                             Michael Krigbaum, Sheriff

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 23, 2015
                             Filed: December 9, 2015
                                  ____________

Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       The Adult Drug Court, part of Missouri’s 45th Judicial Circuit, is a post-plea
program in which non-violent drug offenders’ sentences provide treatment and
rehabilitation and avoid felony convictions. In this 42 U.S.C. § 1983 action, five
female Drug Court participants (collectively, “plaintiffs”) seek damages for injuries
resulting from sexual abuse by Scott Edwards, a Lieutenant in the Lincoln County
Sheriff’s Department, while he acted as “tracker” for the Drug Court.1 Plaintiffs
alleged that Edwards violated their substantive due process rights. They also asserted
claims against Lincoln County, its Sheriff, Michael Krigbaum, and Heather Graham-
Thompson, an independent contractor who served as Drug Court Administrator,
alleging that inadequate policies and their failure to supervise Edwards caused his due
process violations. Krigbaum and Graham-Thompson moved for summary judgment
based on qualified immunity. The district court granted Graham-Thompson qualified
immunity and denied Krigbaum qualified immunity. Krigbaum appeals. Reviewing
the denial of qualified immunity de novo, we reverse.

                                   I. Background.

       A Memorandum of Understanding (“MOU”) established the Drug Court in
August 2006. The MOU was signed by two 45th Judicial Circuit Judges, who agreed
to serve as presiding Drug Court Judges; the Prosecuting Attorneys and Sheriffs of
Lincoln and Pike Counties; a probation and parole officer; a representative of the
criminal defense bar; a substance abuse treatment provider; and the Administrator.
The MOU recited broad “core competencies” for each team member. The county
sheriffs agreed to provide “a monitoring function to the team (along with supervision
and treatment): i.e., going on joint home visits, reporting on a participant’s activities
in the community, and supervising participation in community service.” The Drug
Court Policies and Procedures Manual provided that “[t]he 45th Judicial Circuit will
establish a standing team.” It identified team members as including a “Tracker” from
the Lincoln County Sheriff’s Department. The tracker’s role was:

      to conduct home visits and other participant contact in the community,
      as determined by the drug court team. The duties of the tracker will be,
      but not limited to, conduct home visits, inspect participants’ homes for

      1
        Edwards pleaded guilty to federal charges that, while acting under color of
law, he deprived plaintiffs of their rights. See 18 U.S.C. § 242.

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      indications of drug and/or alcohol use, curfew compliance, conduct
      breathalyzer tests, on-site UA [urine analysis] tests and employment
      verification. If the tracker finds that the participant has violated drug
      court policy, he will contact the judge to determine if the participant
      should be taken into custody as a sanction. The Tracker will complete
      the “tracker reporting form” and return it to the case manager prior to
      weekly staffing and will provide input, as needed, on participant
      compliance at weekly staffing.

       Krigbaum’s predecessor as Lincoln County Sheriff signed the MOU and
assigned Edwards to be the part-time Drug Court tracker. A full-time employee of
the Sheriff’s Department, Edwards was paid by Lincoln County. The Sheriff’s
Department budget received partial “reimbursement” from the Drug Court for
Edwards’s tracking activities. Edwards pleaded guilty to sexually assaulting
plaintiffs between February 1, 2009, and November 30, 2010. The Drug Court team
and Sheriff Krigbaum learned of the sexual assaults on December 1, when plaintiff
S.M. gave an audiotape incriminating Edwards to her probation officer. Krigbaum
immediately spoke to Edwards about the allegations and asked another police
department to investigate. That evening, Krigbaum told Edwards he would be fired,
then allowed Edwards to resign.

       Krigbaum testified that Edwards was working as tracker when Krigbaum was
elected Sheriff in 2008 and took office in January 2009. Krigbaum did not read the
Drug Court Manual or the MOU, did not know how they described the tracker’s
duties, and did not evaluate Edwards’s performance as tracker. Krigbaum believed
Edwards reported to the Drug Court team and considered the Drug Court Judge or the
Commissioner to be Edwards’s supervisor when he was acting as tracker. Not
surprisingly, government participants who signed the MOU all denied responsibility
for supervising Edwards as tracker and denied knowledge of his unlawful actions.
Circuit Judge James Sullivan, who served as Drug Court Commissioner, Drug Court
Judge Bennett Burkemper, and Administrator Graham-Thompson identified Sheriff


                                        -3-
Krigbaum as Edwards’s supervisor. Edwards considered Administrator Graham-
Thompson his supervisor.

      The Sheriff is responsible for Sheriff’s Department policies. One policy --
designed to protect both officers and suspects -- provided that “an officer who took
someone of the opposite sex . . . into custody would report on the radio their mileage
when they started and when they stopped.” This policy was not applied to Edwards
while working as tracker; he reported only when he started and ended tracker duty.
There was evidence that other Drug Court team members had some concerns about
Edwards before his sexual assaults were revealed. He took female participants who
were temporarily in jail for non-compliance out for cigarette breaks, which was
against jail policy. Graham-Thompson heard third-hand that Edwards had made “an
uncomfortable remark” to plaintiff C.A., which Commissioner Sullivan addressed
with Edwards. Just before Edwards’s misconduct came to light, Sullivan learned that
Edwards had moved plaintiff S.M. into a motel room and told Edwards this was
inappropriate. There is no evidence Krigbaum was told about any of these incidents.

      The district court denied Krigbaum qualified immunity because, while there
was “no evidence . . . Krigbaum received notice of a pattern of unconstitutional acts,”
he did not impose the policy of radioing mileage when Edwards as tracker took a
female participant into custody, and “there is a genuine issue whether any lack of
notice is attributable to Krigbaum turning a blind eye to portentous indications such
as Edwards taking drug court participants out of the jail to smoke cigarettes.”

                                  II. Jurisdiction.

       Qualified immunity shields a public official from damage liability unless the
official’s actions violate “clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity protects “all but the plainly incompetent or those

                                         -4-
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). When
a district court denies a defendant summary judgment based on qualified immunity,
“the defendant may immediately appeal the ‘purely legal’ issue of ‘whether the facts
. . . support a claim of violation of clearly established law.’” Kahle v. Leonard, 477
F.3d 544, 549 (8th Cir.), cert. denied sub nom. Malone v. Kahle, 552 U.S. 826 (2007),
quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985). But we do not have
jurisdiction to review issues of “‘evidence sufficiency,’ i.e., which facts a party may,
or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313 (1995).

       Plaintiffs argue that we lack jurisdiction over this appeal because Krigbaum is
challenging evidence sufficiency, not a “purely legal” issue. This contention is
without merit. “Denial of summary judgment often includes a determination that
there are controverted issues of material fact . . . and Johnson surely does not mean
that every such denial of summary judgment is nonappealable.” Behrens v. Pelletier,
516 U.S. 299, 312-13 (1996). In these cases, we have jurisdiction to decide, viewing
the facts in the light most favorable to plaintiffs, whether a reasonable fact-finder
could find a violation of plaintiffs’ rights, whether the law establishing the violation
was clearly established at the time in question, what was known to a person who
might be shielded by qualified immunity, and the reasonableness of defendant’s
actions. See Kahle, 477 F.3d at 549-50; see also Scott v. Harris, 550 U.S. 372, 380
(2007); Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014); Jones v. McNeese,
746 F.3d 887, 895 (8th Cir. 2014).

                                  III. The Merits.

       Government officials are personally liable only for their own misconduct.
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010), citing Otey v. Marshall, 121 F.3d
1150, 1155 (8th Cir. 1997). Thus, “[t]he doctrine of qualified immunity requires an
individualized analysis of each officer’s alleged conduct.” Walton, 752 F.3d at 1125
(quotation omitted). When a supervising official who had no direct participation in

                                          -5-
an alleged constitutional violation is sued for failure to train or supervise the
offending actor, the supervisor is entitled to qualified immunity unless plaintiff
proves that the supervisor (1) received notice of a pattern of unconstitutional acts
committed by a subordinate, and (2) was deliberately indifferent to or authorized
those acts. Livers v. Schenck, 700 F.3d 340, 355 (8th Cir. 2012).

        (1) This rigorous standard requires proof that the supervisor had notice of a
pattern of conduct by the subordinate that violated a clearly established constitutional
right. Allegations of generalized notice are insufficient. “To impose supervisory
liability, other misconduct must be very similar to the conduct giving rise to liability.”
Id. at 356. For purposes of this appeal, Krigbaum concedes that Edwards’s sexual
assaults deprived plaintiffs of a clearly established constitutional right to substantive
due process when he committed “an egregious, nonconsensual entry into the body
which was an exercise of power without any legitimate governmental objective.”
Johnson v. Phillips, 664 F.3d 232, 239 (8th Cir. 2011) (quotation omitted). Sheriff
Krigbaum is entitled to qualified immunity unless he had notice of a pattern of
conduct that was sufficiently egregious in nature. Qualified immunity from
supervisory liability turns on what Sheriff Krigbaum knew of Edwards’s actions as
tracker, not what Drug Court Administrator Graham-Thompson or Commissioner
Sullivan knew.

       The district court found that “[t]here is no evidence . . . Krigbaum received
notice of a pattern of unconstitutional acts,” and that “Krigbaum did not know of any
misconduct . . . nor had he heard any rumors about Edwards paying particular
attention to women.” These findings establish that plaintiffs did not meet their
burden to prove Krigbaum received notice of a pattern of unconstitutional acts;
therefore, Krigbaum is entitled to qualified immunity as a matter of law. See Livers,
700 F.3d at 357. The district court reasoned that Krigbaum’s “lack of notice” could
be “attributable to Krigbaum turning a blind eye to portentous indications such as
Edwards taking drug court participants out of the jail to smoke cigarettes.” Assuming

                                           -6-
without deciding that “turning a blind eye” could ever constitute actual notice, and
that Krigbaum knew of this conduct, being aware that Edwards violated jail policy
by taking Drug Court participants out for a cigarette break falls far short of notice of
a pattern of conduct that violated plaintiffs’ rights to substantive due process.2 Like
the defendant sheriff in Walton, Krigbaum acted to fire Edwards as soon as Krigbaum
learned of Edwards’s egregious misconduct.

       (2) In addition to notice of a pattern of unconstitutional conduct, plaintiffs must
present sufficient evidence that Krigbaum acted with deliberate indifference to their
rights. When the issue is qualified immunity from individual liability for failure to
train or supervise, deliberate indifference is a subjective standard that “entails a level
of culpability equal to the criminal law definition of recklessness.” B.A.B., Jr. v. Bd.
of Educ. of St. Louis, 698 F.3d 1037, 1040 (8th Cir. 2012); see Liebe v. Norton, 157
F.3d 574, 579 (8th Cir. 1998). “[Plaintiffs] must prove [Krigbaum] personally knew
of the constitutional risk posed by [his] inadequate training or supervision” of
Edwards. Walton, 752 F.3d at 1118. To be deliberately indifferent, an “official must
both be aware of facts from which the inference could be drawn that a substantial risk
of [unconstitutional] harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).3

      In their Memorandum in Opposition to the district court, plaintiffs noted our
recent decision in Walton confirming this subjective standard and stated:



      2
        The district court also noted a 2012 incident in which Krigbaum hugged and
kissed his female deputy. This conduct occurred two years after Edwards’s firing and
did not involve similar misconduct.
      3
         The Supreme Court applied an objective standard of deliberate indifference
to a failure-to-supervise claim against a municipality in Canton v. Harris, 489 U.S.
378, 390 (1989). We noted this distinction in Walton, 752 F.3d at 1117-18, and the
Supreme Court carefully explained it in Farmer, 511 U.S. at 840-42.

                                           -7-
      Plaintiffs acknowledge that Sheriff Krigbaum had no actual knowledge
      of these facts or any other facts that a supervisor would actually know
      from engaging in even a modicum of actual supervision, so if the test is
      a subjective one, he presumably escapes liability.

The district court erred when it ignored both this fatal admission and our decision in
Walton and denied Krigbaum qualified immunity. Likewise, the district court erred
in ruling that “[r]egardless whether Krigbaum was deliberately indifferent, it is
disputed whether the Sheriff of Lincoln County was.” Krigbaum is personally liable
only for his own misconduct.

       The Drug Court’s multi-agency membership resulted in significant confusion
and ignorance regarding who was supervising Edwards on a day-to-day basis when
he served as tracker. In denying summary judgment, the district court declared that
Krigbaum’s “ability and duty to supervise Edwards” is a genuine issue of material
fact. On appeal, citing no supporting authority, plaintiffs assert that “[f]ailing to
supervise when one has a duty to supervise is to be deliberately indifferent.” We
reject this contention. Krigbaum could not be deliberately indifferent in failing to
satisfy a duty he did not know he had. “[L]iability for negligently inflicted harm is
categorically beneath the threshold of constitutional due process.” Cty. of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see Daniels v. Williams, 474 U.S.
327, 329-30 (1986). The claim that Sheriff Krigbaum unreasonably failed to exercise
a duty to supervise Edwards to prevent him from harming plaintiffs “is a claim of
negligence that cannot be the basis of a constitutional tort claim.” Moore v. Briggs,
381 F.3d 771, 774 (8th Cir. 2004) (quotation omitted).

       Plaintiffs place great emphasis on a statement in Kahle that “[a] supervisor can
act with deliberate, reckless indifference even when he does not act knowingly.” 477
F.3d at 551-52 (quotation omitted). But that statement simply clarified that a
supervisor can be held liable if he knows of a substantial risk of harm, even if he was


                                         -8-
not “subjectively aware of the actual harm that the plaintiff experienced.” 477 F.3d
at 551. In Kahle, the jail supervisor knew that a male trainee was breaking the rules
by going in and out of a female inmate’s cell after lockdown and ignored the obvious
risk of sexual assault. 477 F.3d at 552. Krigbaum had no information that would
have raised an inference that Edwards was violating his training and duties as a police
officer by sexually assaulting the Drug Court participants he monitored.

       Plaintiffs also rely on our statement that to be liable “[t]he supervisor must
know about the conduct and facilitate it, approve it, condone it, or turn a blind eye
for fear of what [he] might see.” Ottman v. City of Independence, 341 F.3d 751, 761
(8th Cir. 2003) (emphasis added), quoting Ripson v. Alles, 21 F.3d 805, 809 (8th Cir.
1994). The statement preceded the Supreme Court’s decision in Farmer and therefore
must be ignored to the extent it is inconsistent with the subjective test for deliberate
indifference. Here, plaintiffs presented no evidence that Krigbaum had knowledge
of sexual misconduct by Edwards that would create an inference Krigbaum turned a
blind eye to or consciously disregarded a substantial risk of the constitutional harm
Edwards was causing -- conscience-shocking violations of plaintiffs’ substantive due
process rights by a member of the Sheriff’s Department performing duties for the
Drug Court. See Kahle, 477 F.3d at 551.

      (3) Finally, plaintiffs argue that Sheriff Krigbaum should be denied qualified
immunity from their claims of inadequate policy based on Krigbaum’s failure to
enforce the policy requiring Sheriff’s Department deputies to call in mileage when
transporting persons of the opposite sex. A supervisor may be liable if he “is
involved in creating, applying, or interpreting a policy that gives rise to
unconstitutional conditions.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014)
(quotation omitted). The policy in question was designed to protect persons; it did
not “give rise to unconstitutional conditions.”




                                          -9-
       The Order of the District Court denying Sheriff Krigbaum qualified immunity
is reversed. We deny plaintiffs’ Motion for Prompt Dismissal of Appeal.
                       ______________________________




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