                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       December 1, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
NATASHA BLUEBERRY; LAMARA
GLAZE; DANA GRIGGS; JESSICA
REECE; KAREN THRASH,

      Plaintiffs - Appellants,

v.                                                        No. 16-6144
                                                   (D.C. No. 5:13-CV-00278-R)
COMANCHE COUNTY FACILITIES                                (W.D. Okla.)
AUTHORITY, a/k/a Comanche County
Detention Center, d/b/a Comanche County
Jail,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
                 _________________________________

      Appellants brought claims under 42 U.S.C. § 1983 alleging they were sexually

abused while in the custody of the Comanche County Detention Center (“CCDC”) in

violation of their Eighth Amendment rights. The district court granted summary

judgment in favor of the Comanche County Facilities Authority (“CCFA”), finding


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
there were no disputed genuine issues of material fact as to the CCFA’s potential

liability for the alleged abuse. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

I. Background

      For the purpose of this appeal, we accept appellants’ contention that their

constitutional rights were violated when a detention officer sexually assaulted them

or allowed other inmates to sexually assault them. The issue before us is whether the

CCFA may potentially be held liable for the alleged abuse. The district court

concluded that it could not be because appellants failed to establish deliberate

indifference by the administrator of the CCFA, who was the final policymaker for the

CCDC. It also found that appellants failed to establish that the CCFA’s policies or

lack of policies caused the alleged abuse.

      Appellants argue that the district court erred because the CCFA’s lack of

institutional control—as evidenced by its failure to supervise employees and enforce

polices concerning sexual assault investigations—rose to the level of deliberate

indifference and therefore establishes a basis for liability under § 1983.

II. Analysis

      “We review de novo the district court’s grant of summary judgment, applying

the same legal standard as the district court.” Harrison v. Eddy Potash, Inc.,

248 F.3d 1014, 1021 (10th Cir. 2001). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To survive

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summary judgment, a plaintiff “must go beyond the pleadings and designate specific

facts so as to make a showing sufficient to establish the existence of an element

essential to that party’s case.” Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151

(10th Cir. 2006) (internal quotation marks omitted).

      To establish municipal liability on a § 1983 claim, a plaintiff must show that

“the municipality itself cause[d] the constitutional violation at issue.” City of Canton

v. Harris, 489 U.S. 378, 385 (1989). We have identified three elements to such a

claim: “(1) official policy or custom, (2) causation, and (3) state of mind.”

Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir.

2013). An official policy or custom may take many forms, including “a formally

promulgated policy, a well-settled custom or practice, a final decision by a municipal

policymaker, or deliberately indifferent training or supervision.” Id. at 770. This

requirement is intended to limit the municipality’s liability to acts for which it is

actually responsible, not merely those of its employees. Id.; see also City of Canton,

489 U.S. at 385 (“Respondeat superior or vicarious liability will not attach under

§ 1983.”). Causation may be established if the plaintiff shows “the municipality was

the moving force behind the injury alleged.” Schneider, 717 F.3d at 770 (internal

quotation marks omitted). “Where a plaintiff claims that the municipality has not

directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous

standards of culpability and causation must be applied.” Id. (internal quotation marks

omitted). Finally, to show that “a facially lawful municipal action has led an

employee to violate a plaintiff’s rights,” the plaintiff must show that the action “was

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taken with deliberate indifference as to its known or obvious consequences.” Id.

(internal quotation marks omitted). In the context of a “failure to train” claim under

§ 1983, even a showing of gross negligence by the municipality is inadequate to meet

the state-of-mind requirement. City of Canton, 489 U.S. at 388 & n.7.

       We conclude, as did the district court, that the record fails to establish a basis

for holding the CCFA liable for appellants’ alleged injuries. “The mere fact that an

assault occurs does not establish the requisite indifference to a prisoner’s

constitutional rights.” Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir. 1993)

(internal quotation marks and ellipsis omitted). Rather, “[t]he 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.” Barney v.

Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).

       The notice required to show deliberate indifference “can be established by

proving the existence of a pattern of tortious conduct.” Id. To support a finding of

such a pattern, appellants point to evidence of three incidents of sexual misconduct at

the CCDC that occurred within about four years of the alleged misconduct underlying

their claims. However, as noted by the district court, each incident prompted an

investigation, all three of the employees involved ceased to work at the CCDC (two

were terminated and one resigned), and the conduct for which those employees were

disciplined was less egregious than that alleged in this case. Contrary to appellants’

argument, these incidents do not show the CCFA followed a pattern or custom of

                                              4
disregarding tortious conduct. Instead, the incidents show that inmate complaints

were taken seriously by the CCFA. Cf. Gonzales v. Martinez, 403 F.3d 1179, 1187

(10th Cir. 2005) (reversing summary judgment because the evidence supported an

inference that the sheriff’s “purported ignorance of the dangerous conditions in the

jail was a direct result of his lackadaisical attitude toward his responsibility to run the

institution”).

       With respect to most of the misconduct underlying their allegations, appellants

point to no evidence that the CCFA had actual knowledge of an excessive risk to

their safety. “An official’s failure to alleviate a significant risk of which he was

unaware, no matter how obvious the risk or how gross his negligence in failing to

perceive it, is not an infliction of punishment and therefore not a constitutional

violation.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). We reject

appellants’ contention that their vague and informal attempts to notify unspecified

CCDC employees constituted constructive notice to the CCFA about the alleged

assaults. As appellants concede, only one of them made a formal complaint about

being sexually assaulted. Her complaint triggered an investigation and the prompt

suspension of the detention officer involved. An inmate who participated in the

assault received a ten-year sentence upon being convicted, and additional security

cameras were installed to provide coverage of “blind spots” at the CCDC. Appellants

make no showing that these “blind spots” presented such an obvious risk that the

CCFA was aware of them before the incidents alleged in this case. These responsive



                                            5
actions by the CCFA suggest that once it became aware of risks the inmates faced it

chose not to ignore them but rather took steps to address them.

      Although appellants take issue with the district court’s characterization of the

detention officer as a “rogue employee,” Aplt. App., Vol. 8 at 2266, they concede

that prior to the formal complaint by one of them, the CCFA neither knew nor had

reason to suspect that the detention officer posed a threat to CCDC inmates. “At the

summary judgment stage, the requirement of deliberate indifference imposes a

burden on the plaintiff to present evidence from which a jury might reasonably infer

that the prison official was actually aware of a constitutionally infirm condition.”

Tafoya, 516 F.3d at 922. Yet appellants have not shown that the conditions at the

CCDC were such that it was highly predicable or plainly obvious that he would

violate their rights. See Barney, 143 F.3d at 1308; see also Hovater, 1 F.3d at 1066

(concluding that the sheriff did not disregard an obvious risk to inmate safety by

allowing a male guard to have custody of a female inmate absent any indication that

he would assault her).

      Appellants’ argument that the CCFA failed to enforce its policy of conducting

written performance evaluations of CCDC employees after 90 and 180 days of

employment is also unavailing. The detention officer at the center of appellants’

allegations (who was suspended from his job once the investigation began and died in

a car accident shortly thereafter) had not reached 90 days of employment at the

CCDC and so had not undergone an evaluation per the prescribed policies. In any

event, appellants make no showing or argument that an earlier evaluation would have

                                           6
prevented their alleged injuries or that the evaluation policies themselves violated

their rights. “[R]igorous standards of culpability and causation must be applied to

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

Barney, 143 F.3d at 1307 (internal quotation marks omitted).

      With respect to the four appellants who did not report their assaults to the

CCFA, there are no specific allegations that the absence of procedures or forms is

what prevented them from informing the CCFA. See Hovater, 1 F.3d at 1068 (“A

constitutional violation may not be established by a reliance upon unsupported

assumptions.”). Their contention that inmate complaints were not taken seriously is

conclusory and undermined significantly, if not entirely, by their admission that in

the only instance one of them made a formal complaint, the surviving perpetrator was

prosecuted and convicted.

      To the extent appellants argue that additional policies were needed to protect

them from serious harm, they do not specify what those would be. See Serna,

455 F.3d at 1151 (“Unsubstantiated allegations carry no probative weight in summary

judgment proceedings.” (internal quotation marks omitted)). The detention officer’s

conduct clearly violated existing policies at the CCDC, and the CCFA administrator

was conducting weekly audits and taking other steps to attempt to ensure that CCDC

policies were being followed. Cf. Gonzales, 403 F.3d at 1187 (listing several specific

facts to support the inference that the sheriff acted with deliberate indifference to an

excessive risk to the plaintiff). In the absence of any specifics on what additional

policies should have been put in place, we conclude that the failure to enact such

                                            7
policies did not cause their alleged injuries or amount to deliberate indifference that

their rights would be violated.

III. Conclusion

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Timothy M. Tymkovich
                                            Chief Judge




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