                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         DEC 11 1998
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


CAROL TRUJILLO,

          Plaintiff-Appellant,

v.

PAUL SHIELDS, individually, and as
an officer of the City of Pueblo Police
                                                        No. 97-1309
Department,
                                                   (District of Colorado)
                                                    (D.C. No. 96-D-406)
          Defendant,

     and

THE CITY OF PUEBLO, a
municipality,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
         Carol Trujillo appeals from the District Court of Colorado’s grant of

summary judgment in favor of the City of Pueblo (the “City”). Trujillo sued

under 42 U.S.C. § 1983, claiming that the City violated her federal civil rights by

failing to adequately train and supervise its police officers to prevent them from

sexually assaulting female crime victims while on duty. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

         Review of a grant of summary judgment is de novo, and this court applies

the same legal standard used by the district court. See Charter Canyon Treatment

Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998). A district court properly

grants summary judgment if “there is no genuine issue as to any material fact and

. . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c).

         The facts giving rise to Trujillo’s claim are brief. On May 17, 1995,

Trujillo called the Pueblo Police Department to report a burglary at her residence.

Two officers, including Paul Shields, responded to the call. The burglary suspect

was apprehended near Trujillo’s home and Shields remained in Trujillo’s home,

unaccompanied, to finalize the report. Trujillo claims that during this time

Shields sexually assaulted her.




                                           -2-
      The district court granted summary judgment in favor of the city. Citing

Gates v. Unified School District, 996 F.2d 1035, 1041 (10 th Cir. 1993), the court

stated that Trujillo provided no evidence that sexual assaults by Pueblo officers

were a widespread practice which “would have brought to the attention [of] the

chief that there was a problem that he needed to correct.” The court noted that

Trujillo’s claim was based upon a theory that because the police chief could have

foreseen a claim such as Trujillo’s, he created liability by failing to take measures

to prevent it. Citing City of Canton v. Harris, 489 U.S. 378, 388-90 (1989), and

Board of County Commissioners v. Brown, 117 S. Ct. 1382 (1997), the court ruled

that this is not a viable theory for a § 1983 claim against a municipality.

      Trujillo claims that City of Pueblo police officers receive no training on

how to prevent sexual misconduct or claims of sexual misconduct when they

answer calls which require them to be alone with women. Additionally, Trujillo

claims that officers are inadequately supervised when they answer calls which

require them to be alone with women.

      Trujillo argues two facts in her favor. First, she claims that Pueblo police

officers are frequently alone with women, and second, she states that high-ranking

officers in the Pueblo Police Department have known of other incidents of sexual

misconduct perpetrated by officers. These two factual allegations lead Trujillo to

argue that the City is liable under 42 U.S.C. § 1983 for violations of Trujillo’s


                                         -3-
constitutionally protected rights because they evince a custom or policy of

“grossly inadequate training and supervision of patrolmen” which caused Trujillo

to be deprived of her constitutional rights. 1

      Municipal liability under § 1983 is very narrow. See Brown, 117 S. Ct. at

1389. Municipalities may not be held liable under a theory of respondeat

superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985). Rather,

in order for a municipality to be held liable under § 1983, a plaintiff must prove

that a municipal policy or custom caused the plaintiff’s alleged deprivation. See

Brown, 117 S. Ct. at 1388. Furthermore, a plaintiff who seeks to establish

municipal liability “on the theory that a facially lawful municipal action has led

an employee to violate a plaintiff’s rights must demonstrate that the municipal

action was taken with ‘deliberate indifference’ as to its known or obvious

consequences.” Id. at 1390.

      The Brown court conceded that an inadequate training program could be the

basis for § 1983 liability, but only in “limited circumstances.” Id. In order for



      1
        Trujillo also argues that the deliberate indifference standard does not
apply and should be limited to Eighth Amendment contexts. She argues that a
“gross negligence” standard should be used instead. Trujillo failed to raise the
issue in the district court and thus waives it. See United States v. Allen, 16 F.3d
377, 379 (10 th Cir. 1994). Nonetheless, there is no question that the appropriate
standard is deliberate indifference. See Brown, 117 S. Ct. at 1390; Canton, 489
U.S. at 388.


                                           -4-
liability to attach for failure to train, a pattern of constitutional violations arising

directly from the failure to train must exist. Thus, “[i]f a program does not

prevent constitutional violations, municipal decisionmakers may eventually be put

on notice that a new program is called for.” Id. (emphasis added). Furthermore,

“the existence of a pattern of tortious conduct . . . may tend to show that the lack

of proper training . . . is the ‘moving factor’ behind the plaintiff’s injury.” Id.

(emphasis added).

      Consonant with Brown, the Tenth Circuit has created a three-part test that a

plaintiff must prove in order to hold a municipality liable in a § 1983 suit: (1)

“The existence of a continuing, persistent and widespread practice of

unconstitutional misconduct by the [municipality’s] employees”; (2) “Deliberate

indifference to or tacit approval of such misconduct by the [municipality’s]

policymaking officials . . . after notice to the officials of that particular

misconduct”; and (3) Injury to the plaintiff “by virtue of the unconstitutional acts

pursuant to the [municipality’s] custom and the custom was the moving force

behind the unconstitutional acts.” See Gates, 996 F.2d at 1041.

      Trujillo has not proved that sexual misconduct in the manner alleged here is

a continuing, persistent, and widespread practice to which the policymaking

officials in the Pueblo Police Department have demonstrated deliberate

indifference or tacit approval. Taking all of Trujillo’s factual allegations as true,


                                            -5-
she has proved only one other incident, occurring in 1980, of nonconsensual

sexual contact by an officer with a citizen while on-duty. In addition to the

Pueblo Police Department having a policy prohibiting sexual contact while on

duty, the officer in the 1980 sexual misconduct case was terminated, as was

Shields, the officer Trujillo claims to have sexually assaulted her.

      After a de novo review of the parties’ briefs and contentions, the district

court order, and the entire record on appeal, this court finds no reversible error

and affirms for substantially the same reasons set forth in the district court’s

Order Granting Motions for Summary Judgment. The judgment of the United

States District Court for the District of Colorado is AFFIRMED.

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




                                          -6-
