                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    December 19, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    RA M I CO LW ELL,

                Plaintiff-Appellee,

    v.                                                   No. 06-2149
                                               (D.C. No. CIV-05-450-W P/RH S)
    LESLIE JOHNSO N, in her personal                      (D . N.M .)
    capacity and under color of state law;
    and TO NY HALPA IN, in his personal
    capacity and under color of state law,

                Defendants-Appellants.



                             OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




         Defendants Leslie Johnson and Tony Halpain appeal the district court’s

order denying their motion for summary judgment. W e AFFIRM in part and

DISM ISS in part.




*
  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 This order is not binding
precedent except under the doctrines of law of the case, res judicata and collateral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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      W hile imprisoned at the Eddy County Detention Center (“ECDC”), Rami

Colwell discovered that a prison guard, M ike M itchell, was having an intimate

physical relationship with another female inmate. In early September 2004,

Colwell alleges that she told Sergeant Todd Halpain, a guard supervisor, what she

had learned. Halpain denies any knowledge of M itchell’s affair and also denies

having any conversation about that affair with Colwell. At least one guard

testified in a deposition that M itchell and Halpain were good friends and that

other guards were aware of M itchell’s relationship.

      Sometime on or around September 3, 2004, Colwell submitted a written

statement accusing M itchell of inappropriate behavior. Based on Colwell’s

accusation, ECDC personnel commenced an investigation into M itchell’s

activities and reassigned him to another section of the facility. W arden Leslie

Johnson w as aw are of this investigation. During the investigation, ECDC

officials did not reassign Colwell to another facility or transfer her to a different

cell, although these steps were taken in a prior case when an inmate accused a

guard of misconduct.

      On the evening of September 7, ECDC personnel were summoned by

Colwell to her cell. W hen they arrived, they found her bound, gagged, and

severely bruised in both her face and genital area. Colwell stated that she had

been raped and beaten by at least tw o assailants, but was unable to identify them.

One of the assailants, Colwell noted, told her “that she asked for it.”

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      Colwell filed suit under 42 U.S.C. § 1983 against Johnson and Halpain, in

both their individual and official capacities. She alleged that defendants violated

her Eighth Amendment right to be free from “cruel and unusual punishment”

because they failed to take reasonable steps to ensure her safety after she filed a

written accusation against a prison guard. Defendants moved for summary

judgment, arguing that they were entitled to qualified immunity for their actions

and that Colwell failed to present sufficient evidence to support the municipal

liability claim. The district court denied the motion, and this appeal followed. 1

      W e review the district court’s denial of qualified immunity de novo,

making all reasonable inferences in favor of the non-moving party. Romero v.

Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). Summary judgment is inappropriate

when, viewing the facts in the light most favorable to the non-moving party, there

is a “genuine issue as to any material fact.” Fed. R. Civ. P. 56(c).

      Once a defendant asserts a defense of qualified immunity, plaintiff must

(1) allege facts showing a violation of a constitutional right, and (2) show that the




1
  Defendants appeal both the district court’s decision denying them qualified
immunity and its finding that sufficient evidence existed to support the municipal
liability claim. An order denying summary judgment is generally not appealable
to this court, but “a district court’s decision denying a government official
qualified immunity, to the extent it turns on an issue of law , is an immediately
appealable final collateral order.” Kirkland v. St. Vrain Valley Sch. Dist. No.
Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006). On appeal, our jurisdiction is
limited to this issue, and thus w e do not address the defendants’ challenge to
Colw ell’s municipal liability claim. See id.

                                          -3-
right was clearly established at the time the defendant acted. Kirkland, 464 F.3d

at 1188. It is w ell settled that the Eighth Amendment requires prison officials to

“provide humane conditions of confinement,” w hich includes taking “reasonable

measures to guarantee the safety of the inmates.” See Farmer v. Brennan,

511 U.S. 825, 832-33 (1994). A prison official violates this right when the

inmate is imprisoned under conditions posing an objectively substantial risk of

serious harm, and the official acted w ith “deliberate indifference” to the inmate’s

health or safety. Id. at 834; Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir.

2003). An official exhibits “deliberate indifference” when she was subjectively

aware of the substantial risk posed by the inmate’s circumstances and failed to

take reasonable steps to ensure her safety. Id.

      M aking all inferences in favor of Colwell, it is clear that a colorable claim

under the Eighth Amendment was alleged. Because of Colwell’s formal

complaint, M itchell was likely to be terminated (and he was in fact suspended,

and notified of this suspension on September 8th). Halpain, M itchell’s close

friend, was aware that Colwell was the informant and probably told M itchell of

this fact. During the investigation, Colwell was neither transferred to a more

secure section of ECDC nor a new facility. In fact, the cell where she continued

to be housed was located in a remote area of the prison and thus had fewer staff

members assigned to monitor the inmates. Finally, although the prison had

adopted general safety measures to ensure the security of all inmates, it was

                                         -4-
possible for someone to gain access to Colwell’s cell for the purpose of harming

her. 2 On these facts, a jury could easily conclude that the defendants’ failure to

move Colwell to a new location placed her in a location posing an objectively

substantial risk of harm.

      A jury could also find that the defendants were aware of this risk and failed

to take reasonable precautions to protect her. W hen ECDC officials were faced

with a similar incident in 2001 – an inmate informed ECDC officials that a prison

guard had sexual relations w ith a female inmate – that inmate w as transferred to

another facility. A jury could infer from this evidence that the defendants’ were

aware of the risk posed to an inmate in Colwell’s circumstances, and that the

defendants’ actions w ere unreasonable because similar steps w ere not taken with

respect to Colwell.

      Defendants argue that they took reasonable steps to protect Colwell as a

matter of law because she was placed in a cell located behind seven m etal doors,



2
  Colwell submitted an affidavit from an expert in this field, M ichael Hackett,
who stated that ECDC’s security system w as not fail-safe, largely because the
electronic locks on the metal doors w ere capable of being voided. Defendants
argue that Hackett’s testimony is false and unreliable because there is no evidence
that the locks on the metal doors were voided by the assailants. If defendants are
requesting that we look at post-incident evidence to determine whether Colwell
was objectively secure, we note that Colwell was found bound, gagged, and
beaten. Under defendants’ analysis, it seems that there would be no question
Colwell was placed in objectively dangerous conditions. Surely, she did not
inflict these wounds on herself. To the benefit of the defendants, however, our
review is limited to whether she was objectively safe based upon preexisting
evidence.

                                         -5-
all equipped with electronic locks requiring separate key cards, and was closely

monitored. They further argue that they conducted a quiet investigation into her

claim. The “steps” taken by the defendants, however, were no steps at all:

During the investigation, Colwell remained in the same cell she was housed in

when the complaint was filed, and the security identified by the defendants is the

same security given to all inmates. The reasonableness of these measures is

questioned by Halpain himself, who testified that he “absolutely” would have

suggested moving Colwell to another facility if he was aware that Colwell had

formally accused M itchell. For purposes of this appeal, we assume that he had

such knowledge. M oreover, Colwell’s expert stated that keeping her in that cell

was unreasonable. To the extent defendants emphasize the safety of Colwell’s

cell, this is a matter of dispute properly presented to a jury.

      Accordingly, we A FFIR M the district court’s order denying defendants’

claim of qualified immunity, and DISM ISS for lack of jurisdiction with respect to

all other issues raised by defendants on appeal.

                                                      Entered for the Court


                                                      Carlos F. Lucero
                                                      Circuit Judge




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