                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         April 7, 2006
                          FOR THE TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


    JILL COIT,

            Plaintiff-Appellant,

     v.                                                No. 05-1045
                                                (D.C. No. 98-F-2031 (OES))
    ARISTEDES ZAVARAS; MIKE                             (D. Colo.)
    WILLIAMS; WAYNE MAIDEN;
    JASON GARDNER; TIMME
    PEARSON; DENNIS NIX; SHERRY
    HALL; KELLY BLACK; C. KELLY;
    JUDY LEE; JUANITA NOVAK;
    JERRY ROMANSKI; JILL NIELSON;
    JEFF KLEINHOLTZ; JOSEPH
    SMITH; GREG OWENS; JAMES
    ABBOTT,

            Defendants-Appellees.




                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and McCONNELL, Circuit Judges.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Plaintiff-Appellant Jill Coit, a Colorado state prisoner, sued defendants,

who are mostly prison employees at the Colorado Women’s Correctional Facility

(CWCF) located in Canon City, Colorado, under 42 U.S.C. § 1983 for

Constitutional violations. Her amended complaint asserted (1) violations of her

First Amendment rights of freedom of religion and access to the courts

(2) violations of her Eighth Amendment right to be free from cruel and unusual

punishment due to prison employees’ (a) harassment, discrimination, and

retaliation; (b) deliberate indifference to her serious medical needs; and (c) sexual

assaults and failure to protect her from those assaults.

      In orders dated May 28, 2003, and December 13, 2004, the district court

adopted recommendations of the magistrate judge and dismissed all of Ms. Coit’s

claims on various grounds, including but not limited to her failure to exhaust her

administrative remedies as to some claims under 42 U.S.C. § 1997e(a), the

frivolous nature of some claims under 28 U.S.C. § 1915(e)(2)(B), and mootness.

      We review the district court’s grant of summary judgment de novo and the

record is reviewed in the light most favorable Ms. Coit. Neal v. Lewis, 414 F.3d

1244, 1247 (10th Cir. 2005). “Summary judgment is appropriate if there is no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.” Id. Because Ms. Coit is proceeding pro se, we construe her

pleadings liberally, as the district court was also required to do. Id.

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      Following these standards we have reviewed the record on appeal and the

parties’ materials and determined that with one exception, the rulings in the

appealed from orders should be affirmed for substantially the reasons set forth

therein. The sole exception is the district court’s dismissal of Ms. Coit’s claim

that defendants Juanita Novak (assistant warden of CWCF), Mike Williams

(superintendent of CWCF), Wayne Maiden (officer at CWCF) and Aristedes

Zavaras (Director of the Colorado Department of Corrections (CDOC)) failed to

protect her from sexual assault by defendant Joseph Smith. 1

       “Prison officials are required to provide humane conditions of confinement

by ensuring inmates receive the basic necessities of adequate food, clothing,

shelter, and medical care and by taking reasonable measures to guarantee the

inmates’ safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).

      [I]n a claim that officials failed to prevent harm, an inmate must
      show, first, she is incarcerated under conditions posing a substantial
      risk of serious harm, and, second, that officials had a sufficiently
      culpable state of mind. Thus, the deliberate indifference standard in
      a prison-conditions case is a subjective and not an objective
      requirement. That is, a prison official is liable only if the official


1
       References to the “defendants” from this point on will be to these four
defendants. In the district court Ms. Coit alleged that defendants had also ignored
her claims that she had been sexually assaulted by another guard and that a female
officer inappropriately touched her during “pat downs.” On appeal, Ms. Coit
limits her failure to protect argument to defendants’ alleged failings regarding
defendant Smith’s predations. Our treatment of this issue is therefore likewise
limited. Phillips v. Calhoun, 956 F.2d 949, 950 n.2 (10th Cir. 1992) (holding
issues not properly presented on appeal will not be considered).

                                         -3-
      knows of and disregards an excessive risk to inmate health and
      safety. It is not enough to establish that the official should have
      known of the risk of harm.

Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir. 2005) (quotations and

citations omitted). “[W]e have expressly acknowledged that an inmate has a

constitutional right to be secure in her bodily integrity and free from attack by

prison guards,” Barney, 143 F.3d at 1310 (quotation omitted), and “a plaintiff’s

uncontroverted claim of deprivations resulting from sexual assault are sufficiently

serious to constitute a violation under the Eighth Amendment,” Gonzales,

403 F.3d at 1186 (quotations omitted). “[W]e have pointed out [that], ‘cases

involving constitutional or civil rights frequently are unsuitable for summary

judgment because a necessary element of the claim for relief presents an inquiry

into the state of mind of one or more of the parties.’” Norton v. City of Marietta,

432 F.3d 1145, 1152 (10th Cir. 2005) (quoting Seamons v. Snow, 206 F.3d 1021,

1028 n.2 (10th Cir. 2000)).

      In her verified amended complaint, Ms. Coit alleged that “Defendants

subjected [her] to ongoing sexual abuses and harassment by failing to

immediately remove [her] from the ong[o]ing sexual and other abuses or

otherwise take measures to protect her or properly investigate after receiving

actual notice of sexual assaults, abuse and harassment against [her].” R., Doc.

162 at 38. She alleged that she reported Smith’s attacks and abuses to the


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defendants “and anyone else that would listen in hopes of getting this stopped,”

but that “their only response was retaliatory actions by [Smith] and his peers and

CWCF Staff.” Id. at 41. She alleged that she was sexually abused by Smith for a

year and a half and that no significant action was taken until “an African

American [prison] officer took an interest in an African American inmate being

sexual[ly] harassed by Defendant Joseph Smith.” Id. at 38.

      In their motion for summary judgment, the defendants set forth certain

facts, drawn solely from a sworn statement from Ms. Coit and her verified

amended complaint, that were undisputed for summary judgment purposes.

Defendants did not dispute that Ms. Coit had been sexually assaulted by defendant

Smith or that she reported these assaults to the defendants, including meeting with

Ms. Novak “five or six times” and with Mr. Williams “about six times.” Id., Doc.

386 at 19. It was also undisputed that when Ms. Coit reported the assaults to a

Major Bohm he took her out of the kitchen where she had been working with

Smith and made her his clerk. Finally, it was undisputed that the CDOC

eventually conducted an investigation and Mr. Smith was removed from CWCF.

      Defendants argued that the above facts showed “that [Ms. Coit’s]

accusations of sexual assault were investigated and acted upon, with the result

that [Ms. Coit] is no longer being subject[ed] to any form of sexual harassment”




                                         -5-
and that these facts therefore “negate[d] any claim that these Defendants were

deliberately indifferent to her personal safety.” Id. at 21.

      In recommending that Ms. Coit’s claim against the defendants be

dismissed, the magistrate judge found that “[t]he current state of the record [does]

not support an Eighth Amendment deliberate indifference claim” because “[e]ven

conceding the fact that these defendants knew that [Ms. Coit] was at risk from

Smith . . . , the response of the defendants, namely to remove [Smith] from the

facility, is plainly reasonable in the circumstances.” Id., Doc. 424 at 21.

      Objecting to the magistrate judge’s recommendation, Ms. Coit again argued

that the defendants’ deliberate indifference to her plight was shown by the fact

that no investigation of Smith was undertaken until a guard reported Smith’s

abuse of a different inmate, a year and a half after she first complained. She

argued that “Summary Judgment in favor of defendants should not be granted[;]

there is a very real material fact that is disputed mainly the time factor that

defenda[n]ts claim they took action to [Ms. Coit’s] reporting of rape.” R., Doc.

435 at 6.

      In its order adopting the recommendation, the district court noted that

“[t]he question then is whether the response of the defendants was timely and

reasonable in light of plaintiff’s complaints.” Id., Doc. 436 at 11. The court then

found that the amended complaint “g[a]ve no timeframe as to when plaintiff


                                          -6-
complained of the acts of physical abuse detailed in her Fifth Claim” and that the

court, therefore, “ha[d] no basis to compare the timing of defendant’s responses

to the time of plaintiff’s complaints.” Id. Nevertheless, the court proceeded to

dismiss Ms. Coit’s claim on the ground that the fact that Smith was eventually

removed precluded a finding of deliberate indifference. In so holding, the district

court committed error by improperly shifting the burden of production to

Ms. Coit.

      When a party that would not have the ultimate burden of persuasion at trial

on an issue, moves for summary judgment as to that issue, it has “both the initial

burden of production on a motion for summary judgment and the burden of

establishing that summary judgment is appropriate as a matter of law.” Trainor v.

Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). “The moving

party may carry its initial burden either by producing affirmative evidence

negating an essential element of the nonmoving party’s claim, or by showing that

the nonmoving party does not have enough evidence to carry its burden of

persuasion at trial.” Id. If the moving party carries its initial burden, the

nonmoving party must go beyond the pleadings and designate specific facts

showing that there is a genuine issue for trial or summary judgment is mandated.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

      If a moving party fails to carry its initial burden of
      production,[however,] the nonmoving party has no obligation to

                                          -7-
      produce anything, even if the nonmoving party would have the
      ultimate burden of persuasion at trial. In such a case, the nonmoving
      party may defeat the motion for summary judgment without
      producing anything.

Trainor, 318 F.3d at 979 (quoting Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

210 F.3d 1099, 1102-03 (9th Cir. 2000)).

      Here, the defendants’ motion did not negate Ms. Coit’s claim of deliberate

indifference as found by the district court. The motion showed only that

(1) Major Bohm took action to protect Ms. Coit, and (2) eventually Smith was

caught and removed from the CWCF. Neither of these necessarily forecloses the

possibility that defendants were deliberately indifferent to Ms. Coit’s plight. 2

      While the defendants’ motion did argue that “[n]o proof exists that any

Defendant failed to act in response to a threat to Ms. Coit’s safety,” R., Doc. 386

at 20, the defendants must make more than a simple conclusory assertion that

Ms. Coit does not have enough evidence to carry her burden of persuasion at trial,

otherwise summary judgment “would be converted into a tool for harassment.”

Windon Third Oil & Gas Drilling P’ship v. FDIC, 805 F.2d 342, 345 n. 7


2
       For example, Ms. Coit’s alleges on appeal that she only worked as Major
Bohm’s clerk for a month until she was placed in segregation for thirty days for a
disciplinary infraction. She alleges that Smith had access to her and continued to
assault her while she was in segregation and while she worked in the prison
library, where she was sent after segregation, and that the abuse continued for
another year until the defendants were forced into action by the involvement of a
prison guard. These allegations are not inconsistent with the uncontroverted facts
relied upon by defendants’ motion for summary judgment.

                                          -8-
(10th Cir.1986) (quotation omitted). In short, the undisputed facts presented by

defendants in their summary judgment motion did not show that they were entitled

to judgment as a matter of law.

      Consequently, we REVERSE the dismissal of Ms. Coit’s claim that

defendants Novak, Williams, Maiden and Zavaras were deliberately indifferent to

her safety in regards to Smith’s sexual assaults, and remand to the district court

for further proceedings on this claim. We AFFIRM the remainder of the district

court’s judgment and orders of May 28, 2003, and December 13, 2004, for

substantially the reasons set forth in those orders.



                                                       Entered for the Court



                                                       Monroe G. McKay
                                                       Circuit Judge




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