                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         MAR 24 2000
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 ANGELA DeFOOR,

           Plaintiff-Appellee,


 v.                                                     No. 99-1202
 WILLIAM LOU ROTELLA,                               (D.C. No. 97-B-514)
                                                         (D.Colo.)
           Defendant-Appellant.

 and

 THOMAS DALESSANDRI, The
 Garfield County, Colorado, Sheriff,

           Defendant.


                                 ORDER AND JUDGMENT     *




Before BRORBY, McKAY, and BRISCOE , Circuit Judges .


       Defendant William Rotella appeals the district court’s denial of qualified

immunity in this 42 U.S.C. § 1983 and § 1985 action. Plaintiff Angela DeFoor

brought this action alleging violation of her Eighth Amendment rights and



       *
        This order and judgment is not binding precedent, except under the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.
conspiracy to violate those rights. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, see Mitchell v. Forsyth , 472 U.S. 511, 525 (1985), and affirm.

                                            I.

      In February and March 1995, DeFoor was an inmate at the Garfield

County, Colorado, jail where Rotella and Troy Howerton were guards. On

February 5, 1995, DeFoor wrote a letter alleging that Rotella and other guards

came to her cell while she was getting out of the shower and made sexually

harassing statements to her. DeFoor also complained that guards solicited sexual

favors from female inmates in exchange for cigarettes. There was a history of

sexual misconduct between guards and inmates in the Garfield County jail.      See

Aplt. App. at 260 (stating in August 1994 a guard was placed on leave for

allegations of sexual misconduct with a prisoner);   id. at 262 (stating a guard

resigned in November 1995 as a result of an allegation of fraternization with an

inmate); id. at 263 (stating a guard was warned in April 1995 for passing

cigarettes into cells after inmates allowed him to watch them remove their

clothing).

      On March 20, 1995, Howerton took DeFoor from her cell to a bathroom,

where they had sexual intercourse. DeFoor alleges Howerton raped her, but

Howerton contends it was consensual. Prior to having sex with DeFoor,

Howerton told Rotella he was going to take DeFoor out of her cell and have sex


                                            2
with her. Howerton asked Rotella to delay the trustee from going into the

kitchen area so he could take DeFoor through the kitchen. In response, Rotella

told Howerton “that he was crazy and not to do it.”      Id. at 57. Rotella claims he

took no affirmative action to keep the trustee out of the kitchen or to otherwise

act as a lookout. According to Howerton, Rotella agreed to detain the trustee.

       As Howerton took DeFoor down the hall from her cell, DeFoor allegedly

saw “Rotella looking at us. And he gave me a really weird look.”        Id. at 170.

DeFoor stated that “[i]t was his look that made me feel uncomfortable about

going down the hall” – “[i]t was a grin, some sort of grin.”      Id. DeFoor claims

she was shaking and crying as Howerton returned her to her cell after the sexual

encounter and she saw Rotella, who “smiled at me. I walked down the hall and at

that point a lot of things went through my head, that he had known all along.”

Id. at 141, 142. After Howerton returned DeFoor to her cell, Rotella allegedly

“made some comment about seconds.”         Id. at 147. Rotella later went to DeFoor’s

cell and allegedly “had that same smile on his face.”     Id. at 142. Rotella contends

he did not know that Howerton intended to rape DeFoor.

       On March 14, 1997, DeFoor filed a complaint against Rotella, Howerton,

and Thomas Dalessandri, the Garfield County Sheriff.       1
                                                               DeFoor’s complaint


       1
          DeFoor settled her claims with Howerton. At DeFoor’s request, the
district court dismissed her second and third claims against Dalessandri. The
                                                                     (continued...)

                                             3
stated a 42 U.S.C. § 1983 claim that defendants violated her Eighth Amendment

right to be free from cruel and unusual punishment. She also alleged that

Howerton and Rotella conspired with each other to deny her equal protection of

the laws and equal privileges and immunities of the laws, in violation of the Fifth

and Fourteenth Amendments.    2



      Rotella filed a motion for summary judgment, claiming he was entitled to

qualified immunity from DeFoor’s claims. In ruling on the motion, the district

court concluded with respect to DeFoor’s § 1983 claim:

             In support of his request for qualified immunity regarding Ms.
      DeFoor’s first claim, Mr. Rotella argues that he did not know or
      have reason to know that Mr. Howerton intended to rape Ms.
      DeFoor. Rather, he contends that he believed Mr. Howerton and Ms.
      DeFoor planned on having consensual sex. Construing the facts in a
      light most favorable to Ms. DeFoor, however, Mr. Rotella knew that
      Mr. Howerton intended to sexually assault Ms. DeFoor. Mr.
      Rotella’s facial expressions, exhibited before and after the alleged
      rape, contradict his contention that he had no reason to suspect foul
      play. Further . . . Mr. Howerton’s statement that he “was going to
      take [Ms. DeFoor] out of her cell and have sex with her” is
      ambiguous; sexual intercourse may be consensual or nonconsensual.
      Considering Ms. DeFoor’s earlier complaints of sexual harassment,
      her attempted suicide, and the ambiguity of Mr. Howerton’s
      statement, I conclude that Ms. DeFoor has satisfied her burden of

      1
         (...continued)
district court denied Dalessandri’s motion for summary judgment on DeFoor’s
first claim, but that claim is not at issue in this appeal.
      2
         DeFoor’s complaint also stated a § 1983 claim that defendants deprived
her of her Fourteenth Amendment right to be free from restraint and punishment
without due process of law. At DeFoor’s request, the district court dismissed this
claim against Rotella.

                                         4
       showing that Mr. Rotella violated the Eighth Amendment of the
       United States Constitution law by aiding and abetting, and otherwise
       acting with deliberate indifference towards, the alleged rape.

Id. at 282. Citing Hovater v. Robinson , 1 F.3d 1063, 1068 (10th Cir. 1993), the

district court found the law was clearly established that an inmate has a

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

prison guards,” and denied Rotella’s motion for summary judgment on DeFoor’s

Eighth Amendment claim. The district court dismissed DeFoor’s conspiracy

claim to the extent it relied on the Fifth and Fourteenth Amendments. The

district court read DeFoor’s claim as one of conspiracy under 42 U.S.C. § 1985,

and concluded there was evidence of an agreement between Rotella and

Howerton to violate DeFoor’s constitutional rights.

                                             II.

       Rotella appeals the district court’s denial of qualified immunity. Rotella

contends that even accepting DeFoor’s version of the facts, he did not violate

clearly established law. A denial of qualified immunity that accepts plaintiff’s

version of the facts and concludes that defendant violated clearly established law

is immediately appealable because it presents for appellate resolution an abstract

legal issue, rather than a mere factual dispute.   See Johnson v. Martin , 195 F.3d

1208, 1214-15 (10th Cir. 1999). While much of Rotella’s argument challenges

the district court’s resolution of the factual issue of whether Rotella did or did


                                              5
not know Howerton’s sexual encounter with DeFoor was nonconsensual, “a

defendant entitled to invoke a qualified immunity defense may not appeal a

district court’s summary judgment order insofar as that order determines whether

or not the pre-trial record sets forth a ‘genuine’ issue of fact for trial.”     Johnson

v. Jones , 515 U.S. 304, 319-20 (1995). “We review the district court’s denial of

qualified immunity on summary judgment de novo.”               Romero v. Fay , 45 F.3d

1472, 1475 (10th Cir. 1995).

       The doctrine of qualified immunity shields government officials

performing discretionary functions from liability for civil damages if their

conduct “does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.”             Prager v. LaFaver , 180 F.3d

1185, 1190 (10th Cir. 1999) (internal quotations omitted). DeFoor must

demonstrate (1) that the law was clearly established when the alleged violation

occurred, and (2) that defendant’s alleged conduct violated the law.           Dixon v.

Richer , 922 F.2d 1456, 1460 (10th Cir. 1991). To demonstrate that the law was

clearly established, DeFoor must show that the alleged unlawfulness of Rotella’s

conduct was apparent in light of preexisting law.          Armijo v. Wagon Mound Pub.

Schs. , 159 F.3d 1253, 1260 (10th Cir. 1998). “The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is

doing violates that right.”    Id. (internal quotation omitted). DeFoor has the


                                                6
burden to establish that “the asserted right’s contours are sufficiently clear such

that a reasonable official would understand that what he is doing violates that

right.” Id. (internal quotation omitted). If DeFoor meets her burden of showing

that Rotella’s conduct violated clearly established law, then Rotella “bears the

burden, as a movant for summary judgment, of showing no material issues of fact

remain that would defeat the claim of qualified immunity.”       Romero , 45 F.3d at

1475 (internal quotation omitted).

       Rotella focuses on whether the law was clearly established that consensual

sex between an inmate and a guard violates the Eighth Amendment. We have

noted that the law regarding consensual sex between an inmate and a guard is not

clearly established.   Giron v. Corrections Corp. of Am.     , 191 F.3d 1281, 1287

(10th Cir. 1999) (stating that “[t]he Tenth Circuit has not previously determined

whether a prison guard may raise consent as an affirmative defense to a § 1983

allegation of [excessive force], nor is the law clearly established elsewhere”).

However, DeFoor alleged that Howerton raped her, not that they engaged in

consensual sex. The district court concluded there was sufficient evidentiary

support for DeFoor’s allegation that she was raped by Howerton to sustain her

burden at the summary judgment stage. Rape of an inmate by a guard, and

conspiring to commit such an act, would be a violation of clearly established law.

See Hovater , 1 F.3d at 1068 (stating that “an inmate has a constitutional right to


                                            7
be secure in her bodily integrity and free from attack by prison guards”).

       It is equally clear that Rotella’s alleged conduct violated the Eighth

Amendment. DeFoor must establish two conditions before Rotella will be liable

for a § 1983 Eighth Amendment violation. First, she must prove that the alleged

deprivation was “objectively ‘sufficiently serious,’” depriving her of “the

minimal civilized measure of life’s necessities.”   Barney v. Pulsipher , 143 F.3d

1299, 1310 (10th Cir. 1998) (internal quotations omitted). Accepting DeFoor’s

versions of the events, Howerton raped her while Rotella acted as a lookout.

This is a sufficiently serious deprivation to implicate the Eighth Amendment.

Second, Rotella must have had “a ‘sufficiently culpable state of mind,’” meaning

he exhibited “‘deliberate indifference’ to a substantial risk of serious harm to an

inmate.” Id. (quoting Farmer v. Brennan , 511 U.S. 825, 834 (1994)). Rotella

acted with deliberate indifference if he “disregard[ed] a known or obvious risk

that [was] very likely to result in the violation of a prisoner’s constitutional

rights.” Hovater , 1 F.3d at 1066 (internal quotations omitted). Accepting the

facts as alleged by DeFoor, Rotella knew that Howerton intended to rape DeFoor,

did nothing to deter Howerton, and agreed to assist Howerton by detaining the

trustee. Although the Garfield County Sheriff’s Department had a policy

forbidding sexual relations between guards and inmates, the record suggests this

policy was essentially ignored and that sexual relations and sexual misconduct


                                             8
between guards and inmates were commonplace at the jail. It was in this setting

that Rotella agreed to act as a lookout while Howerton had sex with DeFoor.

DeFoor presented sufficient evidence that Rotella exhibited deliberate

indifference to a substantial risk of serious harm.

      DeFoor also claims Rotella and Howerton conspired to violate her Eighth

Amendment rights. To succeed on her § 1985 conspiracy claim, DeFoor “must

prove both the existence of a conspiracy and the deprivation of a constitutional

right.” Thompson v. City of Lawrence , 58 F.3d 1511, 1517 (10th Cir. 1995). As

noted above, DeFoor presented evidence of the deprivation of a constitutional

right. DeFoor also must show “a meeting of the minds or agreement among”

Howerton and Rotella to establish a conspiracy.       Abercrombie v. City of Catoosa   ,

896 F.2d 1228, 1230-31 (10th Cir. 1990). When asked by Howerton to keep the

trustee from going into the kitchen area while he was with DeFoor, Rotella

allegedly told him “that he was crazy and not to do it,” but did not refuse the

request. Aplt. App. at 57 (affidavit of Rotella). According to Howerton, Rotella

agreed to his request. Although Rotella ultimately did not keep the trustee from

entering the kitchen area, his alleged agreement to act as a lookout may have

provided Howerton with a sense of security that he could engage in sexual

activity with DeFoor without the risk of detection. DeFoor presented sufficient

evidence to survive summary judgment on her § 1985 claim.


                                           9
                               III.

The judgment of the district court is AFFIRMED.

                                      Entered for the Court

                                      Mary Beck Briscoe
                                      Circuit Judge




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