                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      MAY 1 1998
                                    PUBLISH
                                          PATRICK FISHER
              UNITED STATES COURT OF APPEALS   Clerk
                       TENTH CIRCUIT



 SUSAN BARNEY, KATHY
 CHRISTENSEN,

       Plaintiffs-Appellants,

 v.

 GERALD R. PULSIPHER,
 individually and in his Official
 Capacity,

       Defendant,                                       No. 96-4192

 BOX ELDER COUNTY, UTAH, a
 political subdivision of the State of
 Utah; ROBERT E. LIMB; LEE
 ALLEN, Commissioner, in his official
 capacity; JAMES WHITE,
 Commissioner, in his official capacity;
 ALLEN JENSEN, Commissioner, in
 his official capacity,

       Defendants-Appellees.


                    Appeal from the United States District Court
                              for the District of Utah
                              (D.C. No. 94-CV-128)


Kathryn Collard, of The Law Firm of Kathryn Collard, L.C., Salt Lake City, Utah
(David Bert Havas and Sharon S. Sipes, of Gridley, Ward, Havas, Hamilton &
Shaw, Ogden, Utah, with her on the brief), for Plaintiffs-Appellants.
Karra J. Porter, of Christensen & Jensen, P.C. (Dale J. Lambert, of Christensen &
Jensen, with her on the brief), Salt Lake City, Utah, for Defendants-Appellees.




Before SEYMOUR, Chief Judge, ANDERSON, and HENRY, Circuit Judges.


SEYMOUR, Chief Judge.




                                        -2-
      While serving 48-hour sentences for minor offenses at Box Elder County

Jail in Utah, Kathy Christensen and Susan Barney were on separate occasions

sexually assaulted by jailer Gerald Pulsipher. Ms. Christensen and Ms. Barney

each brought suit against Gerald Pulsipher, Box Elder County, Sheriff Robert

Limb, and County Commissioners Lee Allen, James White, and Allen Jensen

under 42 U.S.C. § 1983 alleging violations under the First, Eighth, Ninth, and

Fourteenth Amendments based on Mr. Pulsipher’s sexual assault and other

conditions of confinement arising out of their two-day incarcerations. The two

actions were consolidated, and all defendants except Mr. Pulsipher moved for

summary judgment. The district court granted the motion. Ms. Christensen and

Ms. Barney appeal, 1 and we affirm.



                                         I

      In accordance with state law requiring “the separation of prisoners by sex,”

Utah Stat. Ann. § 17-22-5 (1995 repl.), women inmates at Box Elder County Jail

are placed in solitary confinement in a cell specifically designated for females.



      1
         Ms. Barney’s and Ms. Christensen’s complaints also alleged various
pendent state law claims. The parties stipulated to the dismissal of these claims
against all defendants except Mr. Pulsipher, and the district court dismissed the
state law claims on October 11, 1995. Aplt. App. at 559. The district court
certified the appeal under Fed. R. Civ. P. 54(b) and stayed the trial of Mr.
Pulsipher pending the outcome.

                                         -3-
The female cell is eight-by-eight feet in dimension, and the door to the cell

contains a small window which is covered by a manilla envelope taped to the

outside of the door. Below the covered window is a small opening with a trap

door which is used to provide inmates a food tray. The cell is located on the first

floor of the jail adjacent to the jail officer’s desk. On the separate occasions Ms.

Barney and Ms. Christensen were confined at Box Elder County Jail, they each

allege the following inadequate conditions:

             The mattress was soiled and torn; the pillow filthy and
             uncovered by a pillow case; there was no clean place for
             plaintiffs to place their clothing when they went to bed;
             the sink, toilet, shower fixtures and soap were dirty;
             there was profanity scribbled on the walls of the cell; the
             lighting was inadequate and the air in the cell during the
             summer months when the plaintiffs were confined there,
             was stifling due to the lack of any adequate circulation,
             ventilation, or air conditioning in the cell, and the food
             was cold and unappetizing.

Aplt. Br. at 14.

      Several closed circuit television cameras are in the jail and linked to

monitors in the dispatch area to aid jail officials in maintaining the security of the

facility. No cameras monitor the outside exercise area commonly known as the

“bullpen.” Aplt. App. at 216-17, 499. Although dispatchers generally watch the

monitors in concert with their dispatch duties, they are under no obligation to

view them continuously.



                                          -4-
      The Jail Policies and Procedures Manual specifically instructs jailers to

“give notification prior to entering the cell blocks of the opposite sex” to the

dispatcher who “will monitor the cell block.” Id. at 230-31. Moreover, male

jailers are prohibited from “remov[ing] female inmates from their cells without

another officer being physically present.” Id. at 229. Ordinarily two jailers are

required to be on duty per shift, but when one jailer is sick or on vacation a

second jailer is usually not called in due to understaffing and budgetary

constraints. The manual further prohibits jailers from accepting sex or other

favors from prisoners, forbids staff members from taking any prisoners out of the

jail for any reason except to perform authorized jail work assignments, and

prohibits discrimination against any prisoner on the basis of sex.

      As a result of overcrowding in the jail, the indoor exercise area and library

are used to house overflow male prisoners, and women are therefore excluded

from using these spaces. Because of the lack of monitoring and services available

to women inmates, a report evaluating the jail concluded “[t]he present

configuration of space dictates that the facility not house women inmates for

periods of time longer than several hours.” Aplt. App. at 501. Recognizing that

the facilities at Box Elder County Jail are inadequate for holding women prisoners

for any considerable length of time, Sheriff Limb ordinarily follows a “verbal

policy” of confining only women who need to be detained for 24-36 hours at the


                                          -5-
jail. Id. at 212-13. The County usually contracts out to jails in neighboring

counties to house women prisoners sentenced for longer periods of time unless

these jails are full, in which case female inmates are kept at Box Elder County

Jail.

        Early in the morning of May 15, 1993, Kathy Christensen arrived at Box

Elder County Jail to serve a 48-hour sentence for a DUI conviction and was

placed in the female cell. Later that day, Gerald Pulsipher, the only jailer on duty

at the time, removed Ms. Christensen from her cell without informing the

dispatcher as required by jail policy and led her outside to the unmonitored

“bullpen” area where he sexually assaulted her. Mr. Pulsipher threatened to keep

Ms. Christensen in jail longer than 48 hours if she did not perform oral sex as he

demanded. After completing her sentence, Ms. Christensen did not report the

incident of assault to the County.

        On July 10, 1993, Susan Barney was placed in the female cell at Box Elder

County Jail to serve a 48-hour sentence for shoplifting. Mr. Pulsipher, who once

again was the only jailer on duty, took Ms. Barney to the same unmonitored area

without informing the dispatcher and sexually assaulted her. Ms. Barney also did

not report the incident to the County upon her release. However, Ms. Barney

showed her drug counselor a sexually explicit note Mr. Pulsipher had written her

while in jail and told her counselor about the assault. The counselor reported Mr.


                                         -6-
Pulsipher’s conduct to Ms. Barney’s probation officer, who in turn reported the

incident to Sheriff Limb. The County subsequently learned that Ms. Christensen

had also been previously assaulted by Mr. Pulsipher.

      On August 24, 1993, Sheriff Limb terminated Mr. Pulsipher’s employment.

Criminal charges were filed against Mr. Pulsipher, who pled guilty to forcible

sexual abuse of Ms. Christensen. As part of the plea agreement, the criminal

charges relating to the sexual assault of Ms. Barney were dismissed.

      During the time Mr. Pulsipher was employed by the Box Elder County

Sheriff’s Department, Utah law required all peace officers to be certified and

successfully complete a basic training course at a certified academy. See Utah

Code Ann. § 67-15-7 (1991) (subsequently amended and renumbered as Utah

Code Ann. § 53-6-205 (1994)). Before being accepted for admission to a state

certified training program, the applicant must undergo a background

investigation, which includes a criminal history check, to determine the

applicant’s “good moral character.” Id. § 67-15-6. If the criminal history check

reveals convictions for crimes punishable by imprisonment at a state or federal

penitentiary or an offense involving dishonesty, unlawful sexual conduct, physical

violence, or drugs, the applicant is denied admission. Id.

      Mr. Pulsipher was accepted for admission at the Utah Law Enforcement

Academy of Weber State University, a state certified basic training program. The


                                         -7-
background investigation on Mr. Pulsipher turned up one arrest for possession of

alcohol at age seventeen and several speeding tickets, but nothing serious enough

to deny him admission to the academy. Upon successfully graduating from the

academy, Mr. Pulsipher was certified as a peace officer.

      Mr. Pulsipher was hired as a Deputy Sheriff by the Box Elder County

Sheriff’s Department in 1991. The department followed its standard procedure in

hiring Mr. Pulsipher. After he submitted an application, Sergeant Yeates

interviewed him, checked his application, and contacted his references who all

provided positive statements about him. There was no policy in effect requiring

written letters of recommendations or written reports of the Sergeant’s

conversations with these references. Mr. Pulsipher’s application was then sent to

Sheriff Limb for final approval.

      Mr. Pulsipher satisfactorily completed the basic correctional officer course

offered by the Department of Corrections, fulfilling the minimum requirements to

exercise peace officer authority as a correctional officer in the state of Utah.

During the course, Mr. Pulsipher received instruction on offenders’ rights,

staff/inmate relations, sexual harassment, and cross-gender search and

supervision. He also took continuing education courses throughout his

employment at Box Elder County Jail to maintain his state certification as a peace

officer.


                                          -8-
      Mr. Pulsipher received a copy of the Jail Policy and Procedures Manual in

November 1992, and he was required to read it in its entirety and “be familiar

with its contents and comply with its directives.” Aplt. App. at 226. In an

employee performance appraisal dated February 2, 1993, Mr. Pulsipher received

satisfactory to above satisfactory grades in all categories. Before the incidents

involving Ms. Christensen and Ms. Barney, Mr. Pulsipher had not been the

subject of any disciplinary action and Sheriff Limb considered him one of his

better officers.

      James White, Lee Allen, and Allen Jensen were the County Commissioners

at the time the events underlying this appeal took place. The Commissioners were

responsible for funding the jail but did not exercise day-to-day supervision or

administration of the jail, which was left entirely to Sheriff Limb. Under state

law, the Sheriff is charged with keeping the county jail and its prisoners and is the

final policymaking authority for jail operations. See Utah Stat. Ann. § 17-22-2 to

-4; Aplt. App. at 227.

      The sexual assaults on Ms. Christensen and Ms. Barney were the only

incidents of sexual misconduct by Box Elder County jailers of which Sheriff Limb

was aware during his more than thirty-year tenure as the County’s sheriff. The

Commissioners likewise lacked knowledge of any alleged sexual misconduct by

jailers or any complaints about inadequate conditions at the jail for female


                                         -9-
inmates prior to the Christensen and Barney incidents. The record reveals the

only problem Sheriff Limb mentioned to one of the Commissioners was that of

overcrowding, which resulted in his having to send prisoners elsewhere due to

lack of space in the jail.

       Susan Barney brought this action against Gerald Pulsipher, Box Elder

County, Sheriff Limb and Commissioners Allen, White, and Jensen in their

official and individual capacities under 42 U.S.C. § 1983 for the sexual assault by

Mr. Pulsipher and other conditions of confinement arising out of her two-day

incarceration at Box Elder County Jail. 2 Ms. Barney alleges that defendants’

inadequate policies and facilities for women inmates, their failure to adequately

staff, train, and supervise jailers, and their failure to take reasonable measures to

protect her well-being and bodily integrity violated her rights under the First,

Eighth, Ninth, and Fourteenth Amendments of the United States Constitution.

She seeks monetary damages, declaratory and injunctive relief, and attorneys fees

and costs.

       Ms. Christensen also brought a section 1983 action against the same

defendants, alleging similar constitutional violations and seeking similar relief for




       Ms. Barney also named as defendants unknown individuals, John Does I-
       2

IV, who supervised and trained Mr. Pulsipher.

                                         -10-
her two-day incarceration at the jail. These actions were subsequently

consolidated by the district court.

      The district court granted the motions of the County, Sheriff Limb, and

Commissioners Allen, White, and Jensen for summary judgment. The court was

persuaded that defendants had not acted with the required “deliberate

indifference” to violate the Eighth Amendment, noting the absence of any

previously reported incidents of sexual misconduct by Mr. Pulsipher or any

jailers, and holding that the conditions of plaintiffs’ confinement did not rise to

the level of cruel and unusual punishment in light of the brevity of their stay. The

court further found no evidence in the record demonstrating that jail conditions

for female prisoners violated clearly established equal protection rights, and

concluded that defendants’ policy of holding women inmates in solitary

confinement when arrangements could not be made to transport them to other jails

was reasonably related to the legitimate penal interest of providing separate

housing for men and women prisoners. The court thus granted the individual

defendants qualified immunity on all damage claims and granted judgment in

favor of defendants on all claims in the complaint. 3


      3
        Ms. Barney and Ms. Christensen contend the district court failed to
address their claims for declaratory and injunctive relief. Plaintiffs lack standing
to asssert these claims. A “plaintiff cannot maintain a declaratory or injunctive
action unless he or she can demonstrate a good chance of being likewise injured
                                                                        (continued...)

                                         -11-
                                         II

      We begin our review with Ms. Barney’s and Ms. Christensen’s claims

against the County and Sheriff Limb and the Commissioners in their official

capacities. 4 We review a district court’s grant of summary judgment de novo,

viewing all the evidence in the light most favorable to the nonmoving party.

Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir. 1997). Summary

judgment is appropriate only if there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Id. The moving

party does not have to negate the nonmovant’s claims in order to obtain summary

judgment. Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997). “[T]he

movant only bears the initial burden of ‘“showing”--that is pointing out to the

district court--that there is an absence of evidence to support the nonmoving

party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

      3
        (...continued)
in the future.” Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991); see also City
of Los Angeles v Lyons, 461 U.S. 95, 104-05 (1983); Green v. Branson, 108 F.3d
1296, 1299-1300 (10th Cir. 1997). Plaintiffs have failed to so demonstrate, and
we decline to speculate that Ms. Barney and Ms. Christensen will likely end up in
Box Elder County Jail again some time in the future. See Lyons, 461 U.S. at 104-
05. The only claims before us therefore are plaintiffs’ claims for damages.
      4
        A suit against individual defendants in their official capacities is
essentially the same as a suit against the County. See Monell v. Department of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978); Starrett v. Wadley, 876 F.2d 808, 813
(10th Cir. 1989).

                                        -12-
“If the movant carries this initial burden, the non-movant may not rest upon its

pleadings, but must set forth specific facts showing a genuine issue for trial as to

those dispositive matters for which it carries the burden of proof.” Kaul v.

Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

      The County may be held liable under 42 U.S.C. § 1983 only for its own

unconstitutional or illegal policies and not for the tortious acts of its employees.

See Monell v. Department of Soc. Servs., 436 U.S. 690, 694 (1978). The

Supreme Court recently revisited the issue of municipal liability and held that a

municipality is liable only when the official policy is the “‘moving force’ behind

the injury alleged. That is, a plaintiff must show that the municipal action was

taken with the requisite degree of culpability and must demonstrate a direct causal

link between the municipal action and deprivation of federal rights.” Board of

County Comm’rs v. Brown, 117 S. Ct. 1382, 1388 (1997).

      The Supreme Court observed in Brown that when an official municipal

policy itself violates federal law, issues of culpability and causation are

straightforward; simply proving the existence of the unlawful policy puts an end

to the question. See id. at 1388-89. The Court distinguished the above situation

from a case in which the policy at issue is lawful on its face and the municipality

therefore has not directly inflicted the injury through its own




                                         -13-
actions. The Court concluded that determining culpability and causation in the

latter circumstance “present[s] much more difficult problems of proof.” Id. at

1389. In these situations, in keeping with the dictates of Monell, the Court

believed that “rigorous standards of culpability and causation must be applied to

ensure that the municipality is not held liable solely for the actions of its

employee.” Id. Ms. Barney and Ms. Christensen do not contend the County

maintains an official policy of sexually harassing, assaulting, or discriminating

against women prisoners. Nor do they contend Sheriff Limb authorized Mr.

Pulsipher’s sexual assaults. Rather, plaintiffs essentially argue the County is

liable for its conduct in hiring and training Mr. Pulsipher. Accordingly, this

situation falls within that category of cases in which the Supreme Court has

mandated that “rigorous standards of culpability and causation must be applied.”

Id. at 1389.

      We turn first to the claim based on the alleged inadequate training. In City

of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court held that municipal

liability based on a policy of inadequate training requires proof of the

municipality’s “deliberate indifference” to its inhabitants--i.e., the failure to train

must “reflect[ ] a ‘deliberate’ or ‘conscious’ choice by a municipality.” Id. at




                                          -14-
389. 5 The deliberate indifference standard may be satisfied when the municipality

has actual or constructive notice that its action or failure to act is substantially

certain to result in a constitutional violation, and it consciously or deliberately

chooses to disregard the risk of harm. See Brown, 117 S. Ct. at 1390. In most

instances, notice can be established by proving the existence of a pattern of

tortious conduct. Id. In a “narrow range of circumstances,” however, deliberate

indifference may be found absent a pattern of unconstitutional behavior if a

violation of federal rights is a “highly predictable” or “plainly obvious”

consequence of a municipality’s action or inaction, such as when a municipality

fails to train an employee in specific skills needed to handle recurring situations,

thus presenting an obvious potential for constitutional violations. Brown, 117 S.

Ct. at 1391; Canton, 489 U.S. at 390 & n.10.

      Here, plaintiffs’ failure-to-train claim fails because the record contains no

evidence tending to show that the County acted with deliberate indifference. The



      5
        As we discuss infra, a finding of “deliberate indifference” is also required
to hold prison officials liable for violating inmates’ Eighth Amendment right to
humane conditions of confinement. Deliberate indifference, however, is defined
differently for Eighth Amendment and municipal liability purposes. In the prison
conditions context, deliberate indifference is a subjective standard requiring
actual knowledge of a risk by the official. In the municipal liability context,
deliberate indifference is an objective standard which is satisified if the risk is so
obvious that the official should have known of it. See generally Farmer v.
Brennan, 511 U.S. 825, 840-42 (1994) (discussing City of Canton v. Harris, 489
U.S. 378 (1989)).

                                          -15-
Sheriff and the Commissioners testified in their depositions they were unaware of

any previous incidents involving the sexual assault of an inmate by a Box Elder

County jailer or of any complaints about the treatment of women inmates at the

jail. Plaintiffs proffered no evidence to the contrary. Consequently, no pattern of

violations existed to put the County on notice that its training program was

deficient in this regard.

      In addition, this case does not fall within the narrow range of circumstances

justifying a finding of deliberate indifference absent a pattern of violations. Mr.

Pulsipher completed a state certified basic peace officer training program and a

correctional officer course after he was hired, which included instruction on

offenders’ rights, staff/inmate relations, sexual harassment, and cross-gender

search and supervision. Plaintiffs have not come forward with evidence

pertaining to the adequacy of the instruction he received in these courses. We

thus have no reason to conclude that Mr. Pulsipher received constitutionally

deficient training. See Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996).

Even if the courses concerning gender issues and inmates’ rights were less than

adequate, we are not persuaded that a plainly obvious consequence of a deficient

training program would be the sexual assault of inmates. Specific or extensive

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

inmates is inappropriate behavior. See id. (“In light of the regular law


                                         -16-
enforcement duties of a police officer, we cannot conclude that there was a

patently obvious need for the city to specifically train officers not to rape young

women.”)

      We next consider plaintiffs’ claim based on the decision to hire Mr.

Pulsipher. In Brown, the Supreme Court specifically examined the showing

required to hold a municipality liable for a single inadequate hiring decision. 6

The Court emphasized the difference between failure-to-train and inadequate-

hiring claims and refused to simply “import the reasoning of Canton into the

hiring context.” Id. at 1391. The Court observed that basing municipal liability

on an official’s failure to carefully scrutinze an application for employment poses

the “greatest risk” that a municipality will be held liable for the actions of its

employees rather than its own actions, since every injury inflicted by a municipal

employee can be traced to hiring in a but-for sense. Id. at 1391, 1394. The Court

therefore held that when reviewing hiring decisions, courts must take even greater

care to adhere to stringent culpability and causation standards, id. at 1394, and

carefully “test the link” between the policymaker’s hiring decision and the

particular injury alleged, id. at 1391.




      6
        Plaintiffs cannot base their inadequate hiring claim on a pattern of poor
hiring decisions since, as stated above, no previous incidents of sexual assault
have occurred in the thirty-three years of Sheriff Limb’s tenure.

                                          -17-
      Merely showing that a municipal officer engaged in less than careful

scrutiny of an applicant resulting in a generalized risk of harm is not enough to

meet the rigorous requirements of “deliberate indifference.” Id. at 1392.

Culpability requires a strong connection between the background of the particular

applicant and the specific constitutional violation alleged. Establishing municipal

liability in the hiring context requires a finding that “this officer was highly likely

to inflict the particular injury suffered by the plaintiff.” Id. 7

      Mr. Pulsipher’s background investigation revealed an arrest at age

seventeen for possession of alcohol and several speeding tickets. He completed a

state certified basic training program, to which he would have been denied

admission had he been convicted of any crimes involving unlawful sexual conduct


      7
         We note that the focus of the inquiry in determining when a single poor
hiring decision is sufficient to constitute deliberate indifference appears to be on
the actual background of the individual applicant and not on the thoroughness or
adequacy of the municipality’s review of the application itself. As the Supreme
Court took great pains to point out, unlike the obvious “risk from a particular
glaring omission in a training regimen” (such as a failure to train a police officer
in the use of deadly force), it is much harder to predict the consequences of a
single instance of a municipality’s failure to adequately screen an applicant.
Brown, 117 S. Ct. at 1382. Whether or not an unsuitable applicant is ultimately
hired depends more on his actual history than the actions or inactions of the
municipality. Take, for example, a situation in which a hiring official completely
fails to screen an application and hires an applicant, but the applicant actually has
a spotless background. In such cases, the Court has stated that the hiring official
cannot be said to have consciously disregarded an obvious risk that the applicant
would inflict constitutional harm on the citizens of the municipality when even a
thorough investigation would have revealed no cause for concern. Id. at 1391-92.


                                           -18-
or physical violence. Plaintiffs have presented no evidence that Mr. Pulsipher’s

background could have led Sheriff Limb to conclude Mr. Pulsipher was highly

likely to inflict sexual assault on female inmates if hired as a correctional officer.

See id. at 1393 (applicant’s pleas of guilty to various traffic violations and assault

and battery, resisting arrest, and public drunkenness arising out of college fight

did not make use of excessive force a plainly obvious consequence of decision to

hire him as a police officer). The County is therefore not liable for Sheriff

Limb’s decision to hire Mr. Pulsipher. 8



                                           III

      Ms. Barney and Ms. Christensen also sued the Sheriff and the

Commissioners in their individual capacities. Qualified immunity is an

affirmative defense against section 1983 damage claims available to public


      8
         We also reject plaintiffs’ assertions that the County should be held liable
for adopting an “official defacto policy,” Aplt. Br. at 20, of permitting a single
jail officer to be on duty alone when the second jailer is sick or on vacation, and
for failing to adopt various policies to adequately supervise jailers and protect
women prisoners, including notifying inmates of their rights to be free from
sexual assault and providing formal avenues of complaint for inmates and formal
sanctioning procedures for jailers. The record reveals no previous incidents of
sexual harassment or assault of female inmates at Box Elder County Jail which
would provide actual or constructive notice to the County that its one-jailer policy
and failure to adopt certain policies would result in the specific injuries alleged
here. Nor are we persuaded that a plainly obvious consequence of failing to adopt
such policies or having one male jailer on duty is the sexual assault of female
inmates. Cf. Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir. 1993).

                                           -19-
officials sued in their individual capacities. Wilson v. Meeks, 52 F.3d 1547, 1552

(10th Cir. 1995). Government officials are shielded from liability if “their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Plaintiffs maintain the district court erred in granting qualified

immunity to the individual defendants, contending defendants violated their

clearly established rights under the Eighth Amendment and Equal Protection

Clause.

      “In analyzing qualified immunity claims, we first ask if a plaintiff has

asserted the violation of a constitutional right at all, and then assess whether the

right was clearly established at the time of a defendant’s actions.” Gehl Group v.

Koby, 63 F.3d 1528, 1533 (10th Cir. 1995) (citing Siegert v. Gilley, 500 U.S. 226,

232 (1991)). “We review summary judgment decisions involving a qualified

immunity defense somewhat differently than other summary judgment rulings.”

Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). Once a

defendant raises the defense, the plaintiff assumes the burden of “(1) coming

forward with sufficient facts to show that the defendant’s conduct violated the

law; and (2) demonstrating that the relevant law was clearly established when the

alleged violation occurred.” Gehl Group, 63 F.3d at 1533. “Where a plaintiff

fails to demonstrate that a defendant’s conduct violated the law, we need not


                                         -20-
reach the issue of whether the law was clearly established.” Id. 9 The district

court here held that plaintiffs failed to state claims under the Eighth Amendment

or the Equal Protection Clause, and granted qualified immunity on these grounds.

We address plaintiffs’ claims in turn.

A.    Eighth Amendment

      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. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Plaintiffs

contend Sheriff Limb and the Commissioners violated their Eighth Amendment

rights by failing to protect them from Mr. Pulsipher’s sexual harassment and

assaults and by the inhumane conditions they allegedly suffered during their two-

day incarcerations. 10

      9
        Deciding the “purely legal question” of whether a constitutional violation
exists at all first allows courts “expeditiously to weed out” essentially meritless
claims early in the proceedings. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
Qualified immunity provides immunity from suit as well as from liability and
serves the important purpose of protecting public officials from unnecessarily
going forward with the costly burdens of trial. Id.; Wilson v. Meeks, 52 F.3d
1547, 1552 (10th Cir. 1995).
      10
         Although plaintiffs generally invoke other constitutional amendments in
their complaints, their claims concerning conditions of confinement “remain[ ]
bounded by the Eighth Amendment, the explicit textual source of constitutional
protection in the prison context.” Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th
Cir. 1995) (internal quotations and citations omitted); see also Riddle v.
                                                                       (continued...)

                                         -21-
      In order to hold prison officials liable for violating an inmate’s right to

humane conditions of confinement, two requirements must be met. First, the

deprivation alleged must be objectively “sufficiently serious,” Wilson v. Seiter,

501 U.S. 294, 298 (1991), depriving the inmate of “‘the minimal civilized

measure of life’s necessities,’” id. (quoting Rhodes v. Chapman, 452 U.S. 337,

347 (1981)). Second, the official must have a “sufficiently culpable state of

mind,” which in this context means the official must exhibit “deliberate

indifference” to a substantial risk of serious harm to an inmate. Farmer, 511 U.S.

at 834; Wilson, 501 U.S. at 297. 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 knows of and disregards an

excessive risk to inmate health and safety.” Farmer, 511 U.S. at 837. It is not

enough to establish that the official should have known of the risk of harm. Id.

      With regard to plaintiffs’ sexual assault claims, 11 we have expressly

      10
        (...continued)
Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (inmate’s claim of inadequate
medical care analyzed under Eighth Amendment and not more general provisions
of substantive due process).

      11
         Although plaintiffs allege Mr. Pulsipher subjected them to severe verbal
sexual harassment and intimidation, these acts of verbal harassment alone are not
sufficient to state a claim under the Eighth Amendment. See Adkins, 59 F.3d at
1037. Plaintiffs’ claims of verbal harassment are only actionable “[i]n
combination” with the assaults. See, e.g., Women Prisoners v. District of
                                                                      (continued...)

                                          -22-
acknowledged that an “inmate has a constitutional right to be secure in her bodily

integrity and free from attack by prison guards.” Hovater v. Robinson, 1 F.3d

1063, 1068 (10th Cir. 1993). Clearly plaintiffs’ deprivations resulting from the

sexual assaults are sufficiently serious to constitute a violation under the Eighth

Amendment. Nevertheless, Ms. Barney and Ms. Christensen have not shown that

Sheriff Limb and the Commissioners were deliberately indifferent in failing to

protect them from Mr. Pulsipher’s assaults. Plaintiffs maintain defendants knew

of the substantial risk posed by permitting Mr. Pulsipher to be the sole guard on

duty and consciously disregarded that risk. To support their claims of defendants’

knowledge, plaintiffs rely primarily on defendants’ official policy requiring two

jailers to be present when female prisoners were removed from their cell. 12 This

      11
        (...continued)
Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994) (observing that “when officers
make sexual remarks in an environment where sexual assaults of women prisoners
by officers are well known and inadequately addressed” such conduct “mutually
heighten[s]” the injury to women prisoners), vacated in part, modified in part, 899
F. Supp. 659 (D.D.C. 1995), vacated in part and remanded, 93 F.3d 910 (D.C. Cir.
1996). We therefore focus on plaintiffs’ sexual assault claims.
      12
         Plaintiffs also point to a report stating that Box Elder County Jail was
overcrowded, did not meet regulatory standards, lacked adequate monitoring, and
was particularly inadequate for detaining female prisoners for extended lengths of
time as evidence of the County’s knowledge of the substantial risk of harm faced
by female inmates at the jail. However, if a prison official responds reasonably to
a risk of harm, he will not be held liable even if the harm ultimately is not
prevented. Farmer, 511 U.S. at 844-45. (“A prison official’s duty under the
Eighth Amendment is to ensure reasonable safety, a standard that incorporates
due regard for prison officials’ unenviable task of keeping dangerous men [and
                                                                        (continued...)

                                         -23-
policy, in plaintiffs’ view, clearly reflects defendants’ understanding that a

substantial risk of sexual misconduct to female inmates existed when only one

male jailer was present.

      We explicitly rejected this argument in Hovater, which involved very

similar facts and controls here. There, Mr. Robinson, a detention officer, called

Ms. Hovater, a female inmate, from her cell to the library. In violation of jail

policy which required that female inmates be accompanied by either a female

officer or at least two male officers, Ms. Hovater was left alone with Mr.

Robinson, who then sexually assaulted her. Id. at 1064-65. Prior to this incident,

neither the sheriff nor the county commissioners knew of any complaints from

female inmates about sexual misconduct by Mr. Robinson or any other jail officer.

Id. at 1064. We held Ms. Hovater failed to establish that the sheriff and the

county commissioners acted with deliberate indifference--i.e., that the defendants

“disregarded an obvious risk to the safety of female inmates by allowing a single



      12
         (...continued)
women] in safe custody under humane conditions.”) (internal quotations and
citations omitted). Sheriff Limb acknowledged these problems and took
reasonable measures to alleviate the risk of harm to female inmates. He
contracted out to neighboring county jails with better facilities for women and
whenever possible detained women only for 24-36 hours at the jail. Ms. Barney’s
and Ms. Christensen’s confinements exceeded this limit by only twelve hours. In
light of the reasonable measures taken in response to the conditions listed in the
report, plaintiffs cannot establish that County defendants acted with deliberate
indifference.

                                         -24-
male guard to have custody of a female inmate absent any indication that the

guard would assault her.” Id. at 1066. 13 We further stated:

               [T]he mere existence of the policy at issue does not
               establish an obvious risk that females left alone with
               male guards are likely to be assaulted.

               Sheriff Hill had no knowledge that Mr. Robinson was a
               threat to the female inmates. Any known harm could
               stem only from the mere fact of Mr. Robinson’s gender.
               To find harm present in these circumstances would, in
               effect, require the conclusion that every male guard is a
               risk to the bodily integrity of a female inmate whenever
               the two are left alone. There is absolutely no evidence
               in this record to support that conclusion.

Id. at 1068.

      Nor does the record here contain any evidence to indicate that male guards

at Box Elder County Jail, if left alone with female inmates, posed a risk to their

health and safety. As in Hovater, we decline to find knowledge by Sheriff Limb

and the Commissioners of a substantial risk of harm from the mere fact of Mr.

Pulsipher’s gender. Without any evidence of sexual misconduct in Mr.

Pulsipher’s background or any evidence of previous incidents of sexual

misconduct by Box Elder County jailers, plaintiffs have failed to raise a fact

question on whether the Sheriff and the Commissioners acted with deliberate

indifference under either an objective or subjective standard.


      13
        Because Hovater was decided before the Supreme Court’s decision in
Farmer, we applied the objective test under the deliberate indifference standard.

                                          -25-
      With regard to the general conditions of confinement, plaintiffs specifically

allege a filthy cell, inadequate lighting and ventilation, lack of enclosures around

the shower and toilet, unappetizing food, and no access to recreational facilities.

The Eighth Amendment “does not mandate comfortable prisons,” and conditions

imposed may be “restrictive and even harsh.” Rhodes, 452 U.S. at 347, 349. An

important factor in determining whether conditions of confinement meet

constitutional standards is the length of the incarceration. Thus, a “filthy,

overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and

intolerably cruel for weeks or months.” Hutto v. Finney, 437 U.S. 678, 686-87

(1978). Courts have repeatedly held that similar and far worse conditions fail to

state a claim because of the brief nature of the incarceration. See, e.g., Whitnack

v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994) (deplorably filthy and

patently offensive cell with excrement and vomit not unconstitutional because

conditions lasted only for 24 hours); White v. Nix, 7 F.3d 120, 121 (8th Cir.

1993) (eleven day stay in unsanitary cell not unconstitutional because of relative

brevity of stay and availability of cleaning supplies); Harris v. Fleming, 839 F.2d

1232, 1235-36 (7th Cir. 1988) (five day stay in “filthy, roach-infested cell” not

unconstitutional); see also Ogbolu v. McLemore, 1997 WL 49449, at *2 (10th Cir.

Feb. 2, 1997) (cold, wet, drafty, and unsanitary solitary cell for two days does not




                                         -26-
violate Eighth Amendment). Plaintiffs’ allegations simply do not rise to the level

of a constitutional violation. 14



B.     Equal Protection

       Ms. Barney and Ms. Christensen contend defendants discriminated against

them on the basis of their sex in violation of the Equal Protection Clause by

subjecting them to sexual harassment and assault, 15 placing them in solitary

       14
          Plaintiffs’ reliance on Women Prisoners v. District of Columbia, 877 F.
Supp. 634 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659
(D.D.C. 1995), vacated in part and remanded, 93 F.3d 910 (D.C. Cir. 1996), to
support their Eighth Amendment claims is misplaced. Women Prisoners involved
repeated reports and incidents of prison guards sexually assaulting and harassing
women inmates. Despite prison officials’ knowledge of this longstanding abuse,
the officials ignored the reports and took no reasonable measures to alleviate
these conditions. See id. at 639-43, 664-67. As to the general conditions of
confinement, the plaintiff class in Women Prisoners included prisoners
incarcerated for longer periods of time and the conditions alleged were far more
extensive and serious than the ones alleged here. See id. at 648-53, 670-72
(finding general prison conditions violated Eighth Amendment “not because they
produce surroundings which are unattractive or food which is unappetizing” but
“because they combine to create an unconstitutionally high exposure to illness or
injury”).

        Plaintiffs assert that sexual harassment and sexual assault are actionable
       15

as an equal protection violation under 42 U.S.C. § 1983 without a showing that a
comparable group of males are likewise being harassed, citing Starrett v. Wadley,
876 F.2d 808, 814 (10th Cir. 1989). Starrett involved a suit brought by a female
county employee against the county and her male supervisor for sexual
harassment and retaliatory discharge. Id. at 812, 814. We are not confronted here
with a charge of sexual harassment in the employment context. Claims of sexual
harassment and assault of inmates by prison guards are more properly analyzed
under the Eighth Amendment. See supra at pp. 21-22. The Equal Protection
                                                                      (continued...)

                                        -27-
confinement when male inmates are not ordinarily placed in solitary confinement,

and denying them access to educational and recreational facilities and programs

offered to male inmates. The Equal Protection Clause requires the government to

treat similarly situated people alike. City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). In order to assert a viable equal protection claim,

plaintiffs must first make a threshold showing that they were treated differently

from others who were similarly situated to them. See Gehl Group, 63 F.3d at

1538.

        Plaintiffs have not come forward with any evidence indicating that women

serving two-day sentences at Box Elder County Jail received treatment different

from men serving similar lengths of time. 16 Nor have they presented evidence of

the relative number of men and women prisoners, the average length of stays of

men and women prisoners, and what programs are offered to male prisoners.



        (...continued)
        15

Clause in the prison-conditions context is usually invoked to remedy disparities in
educational, vocational, and recreational programs offered to male and female
inmates. See, e.g., Women Prisoners v. District of Columbia, 93 F.3d 910, 924-
27 (D.C. Cir. 1996); Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir.
1994).

        In responding to plaintiffs’ Equal Protection argument, defendants rely
        16

on the majority opinions in Women Prisoners v. District of Columbia, 93 F.3d 910
(D.C. Cir. 1996), and Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir.
1994). In view of our determination that plaintiffs have presented no evidence in
support of their Equal Protection claim, we need not assess the analyses of the
majority and dissenting opinions set out in those cases.

                                        -28-
Absent any relevant information about male prisoners at Box Elder County Jail,

plaintiffs cannot make the required threshold showing that they were treated

differently from male inmates who were similarly situated to them. Plaintiffs’

equal protection claims therefore fail. See Women Prisoners v. District of

Columbia, 93 F.3d 910, 925-26 (D.C. Cir. 1996) (female inmates at co-

correctional facility foreclosed from making equal protection claim because no

evidence regarding programs available to male inmates at same facility). 17

      In sum, plaintiffs failed to meet their burden of presenting sufficient facts

to show that Sheriff Limb and the Commissioners violated either the Eighth

Amendment or the Equal Protection Clause. Consequently, the district court

properly granted summary judgment for these defendants. 18




      17
         Moreover, considering that state law requires the separation of men and
women inmates and that the jail houses primarily male prisoners while female
inmates are ordinarily detained for only brief periods of time and contracted out
to neighboring jails, the County defendants’ policy of keeping women in solitary
confinement reflects a legitimate and rational decision to provide for the safety of
inmates and the efficient running of the jail. We hesitate to interfere with prison
officials’ decisions concerning the day-to-day administration of prisons, to which
we must accord deference. See Turner v. Safley, 482 U.S. 78, 84-85 (1987).
      18
         Defendants urged us to grant the Commissioners in their individual
capacities absolute legislative immunity. Since we uphold summary judgment in
favor of the Commissioners on the merits, we need not address this issue. We
also find meritless plaintiffs’ final argument that the district court’s grant of
summary judgment violated their right to a jury trial.

                                        -29-
                                         IV

      As the County defendants readily concede, Mr. Pulsipher’s conduct towards

Ms. Barney and Ms. Christensen was inexcusable and “outrageous.” Aplee Br. at

23. Such outrageous conduct by Mr. Pulsipher, without more, is not enough to

impose liability on the County, or the Sheriff and the Commissioners in their

individual capacities. Mr. Pulsipher has been criminally convicted for his

behavior and the section 1983 suit against him is pending below. Ms. Barney and

Ms. Christensen are therefore not left entirely without relief.

      We AFFIRM.




                                        -30-
