                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         SEP 30 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    PRISCILLA ANN MAINE,

                Plaintiff-Appellant,

    v.                                                 No. 97-6027
                                                   (D.C. No. 95-CV-936)
    OKLAHOMA DEPARTMENT OF                             (W.D. Okla.)
    CORRECTIONS, sued as State of
    Oklahoma ex rel.; BOBBY BOONE,
    Warden, Mack Alford Correctional
    Center; BRUCE HOWARD, Deputy
    Warden, Mack Alford Correctional
    Center; WILLIS VIEUX, Chief of
    Security, Mack Alford Correctional
    Center; CARL GOODSON, Officer
    at Mack Alford Correctional Center,
    in their official capacities and
    individually,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before TACHA, McKAY, and BALDOCK, 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      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Priscilla Ann Maine appeals the district court’s grant of summary

judgment on her Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1983

gender discrimination and retaliation claims in favor of defendants, the State of

Oklahoma, the Oklahoma Department of Corrections and four individual

department officials. She also appeals the grant of summary judgment in favor of

the four individual department officials on a § 1983 claim that they violated her

substantive due process constitutional rights.

      We review de novo whether defendants are entitled to summary judgment,

applying the same legal standards applied by the district court under Fed. R. Civ.

P. 56(c). See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 781

(10th Cir. 1995). Summary judgment is appropriate if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). “‘When applying this standard, we examine the factual record

and reasonable inferences therefrom in the light most favorable to the party

opposing summary judgment.’” Hirase-Doi, 61 F.3d at 781 (quoting Applied




                                         -2-
Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.

1990)). We affirm.

                                   I. Background

      Plaintiff, a librarian employed at the Mack Alford Correctional Center

(MACC), was raped and assaulted by an inmate on June 23, 1993, while she was

alone and on duty in the library. Plaintiff had just locked the library for the mid-

day inmate count, remaining inside to eat lunch. However, an inmate had hidden

under a library table, and he assaulted plaintiff, dragged her into a store room and

raped her. Plaintiff had been employed at MACC since 1974, and had worked as

a prison librarian at MACC since 1987. When plaintiff took the librarian job, she

knew that she would have contact with inmates, including some convicted of

violent crimes. She had worked in the library without any other MACC staff

since late 1990.

      Plaintiff had, on numerous occasions, complained to MACC officials about

the lack of security provided to her. Her complaints included concerns that

security officers were not making periodic checks on her in the library, and that

her telephone was sometimes not working for days at a time. Plaintiff also

complained about inmates who were displaying overt sexual behavior towards her

in the library, and she alleges that defendants never disciplined these inmates for




                                          -3-
their behavior. Plaintiff requested, but did not receive, a two-way radio or a body

alarm to protect her.

        Several weeks before she was raped, the prison mail clerk intercepted an

obscene and threatening letter directed at plaintiff. MACC officials identified,

and disciplined, the inmate who sent the letter, though he was not the inmate who

later raped plaintiff. Although MACC’s deputy warden directed the chief of

security to provide more security checks for the library after the threatening letter,

this directive was not carried out. Moreover, although MACC’s policy statement

required security officers to check the library at least once an hour, records from

the thirty days preceding the date plaintiff was raped demonstrate that security

officers checked the library only once a day on twenty-two of those days, and only

twice a day on the other eight days. Plaintiff alleged that in the six years

preceding the rape, the required hourly security checks on her had never been

made.

        Plaintiff attributes the lack of security provided to her to retaliation for a

1989 sexual harassment complaint she made against defendant Carl Goodson, a

MACC correctional officer. In September 1989, Goodson put his arm around

plaintiff’s waist in a sexually offensive manner in front of an inmate. Plaintiff

filed a written complaint against Goodson, and Goodson was given a letter of

reprimand and apologized to her. Plaintiff alleged that after her complaint against


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Goodson, defendants retaliated against her by creating a dangerous and hostile

work environment by not disciplining inmates who displayed overt sexual

behavior towards her and by isolating her without adequate security and means of

communication.

      Plaintiff filed suit, alleging that defendants’ failure to provide her with

appropriate security caused her rape, and that the individual defendants’ actions

deprived her of her constitutional right to liberty without due process of law. The

district court granted defendants’ motion for summary judgment, finding that

plaintiff had not shown the existence of hostile work environment sexual

harassment or retaliation in violation of Title VII or a substantive due process

violation.

                                II. Title VII Claims

      We agree with the district court that plaintiff did not present evidence

showing the existence of a hostile work environment or retaliation in violation of

Title VII. A plaintiff may prove the existence of hostile work environment

sexual harassment in violation of Title VII “where sexual conduct has the

purpose or effect of unreasonably interfering with an individual’s work

performance or creating an intimidating, hostile, or offensive working

environment.” Hirase-Doi, 61 F.3d at 782 (quotation omitted). “For sexual

harassment to be actionable, it must be sufficiently severe or pervasive to alter the


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conditions of the victim’s employment and create an abusive working

environment.” Id. (quotation omitted).

      The only evidence of sexual harassment plaintiff presented was the isolated

Goodson incident, which, as the district court correctly concluded, is neither

severe nor pervasive enough to create an objectively hostile work environment.

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (identifying factors to be

considered in determining whether environment is hostile). The actions of those

inmates who behaved in an overtly sexual manner in front of plaintiff and sent her

the obscene letter cannot, as the district court concluded, be attributed to

defendants. See Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572,

579-80 (10th Cir. 1990). The record demonstrates MACC officials did discipline

many of these inmates in response to plaintiff’s complaints, including the inmate

who wrote the threatening letter.

      Plaintiff also failed to present evidence that other similarly-situated men

were treated differently than she. Although plaintiff complained of continuing

lax security measures, there is nothing in the record to indicate the security

provided to her differed from that provided to other similarly-situated MACC

employees. The record demonstrates that all of the areas required to be checked

hourly were actually checked only once or twice a day; thus, the lack of periodic

security checks was not unique to plaintiff. It is uncontested that no MACC


                                          -6-
employee had a body alarm, and that two-way radios were assigned on a first-

come-first-served basis.

      We also agree with the district court that plaintiff did not present evidence

showing the existence of retaliation in violation of Title VII. In order to establish

a retaliation claim under Title VII, a plaintiff initially must establish a prima facie

case of retaliation by establishing “(1) protected opposition to Title VII

discrimination or participation in a Title VII proceeding; (2) adverse action by

the employer subsequent to or contemporaneous with such employee activity; and

(3) a causal connection between such activity and the employer’s adverse action.”

Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996). “The causal

connection may be demonstrated by evidence of circumstances that justify an

inference of retaliatory motive, such as protected conduct closely followed by

adverse action.” Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th

Cir. 1982) (emphasis supplied). An inference of retaliatory motive can be made

only if there is a close temporal proximity between the bringing of charges and

the adverse action. See Candelaria v. EG & G Energy Measurements, Inc., 33

F.3d 1259, 1262 (10th Cir. 1994).

      The district court correctly found that plaintiff failed to provide evidence

demonstrating a causal connection between any adverse action and plaintiff’s

complaint against Goodson, which occurred four years prior to the assault and


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rape of plaintiff. There is nothing in the record to show that security levels

provided to plaintiff changed after the Goodson incident other than the library

reorganization which caused her to be working alone. That change did not occur

until late 1990, almost two years after the Goodson complaint. According to

plaintiff, MACC officials had not been making the required periodic security

checks for six years, well before the Goodson incident. Moreover, as noted

above, there is nothing in the record to indicate the security provided to plaintiff

differed from that provided to similarly-situated MACC employees. Accordingly,

plaintiff failed to establish a prima facie case of retaliation under Title VII.

                         III. Substantive Due Process Claim

      The district court concluded plaintiff failed to establish that defendants

violated her right to substantive due process under the Fourteenth Amendment

and, even if plaintiff had established a constitutional violation, the defendants

were entitled to qualified immunity because it was not clearly established in June

1993 that the alleged conduct would violate plaintiff’s substantive due process

rights. We agree.

      We must decide first whether plaintiff asserted the violation of her due

process rights. See Siegert v. Gilley, 500 U.S. 226, 231-33 (1991) (in reviewing

claims of qualified immunity, court must first determine whether plaintiff asserted

a violation of a constitutional right at all, and if so, then determine whether that


                                           -8-
right was clearly established). Generally, state actors are liable under the due

process clause only for their own acts and not for the violent acts of third parties.

See Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). We have recognized an

exception to this general rule, relied upon here, referred to as the “danger

creation” theory. Id. It provides that a state may be liable for an individual’s

safety “if it created the danger that harmed the individual. . . .” Id.

      In Medina v. City & County of Denver, 960 F.2d 1493, 1496-97 (10th Cir.

1992), we concluded that a state actor could be held responsible under § 1983

for harm caused by a third person if he acted in reckless disregard of the rights of

a limited group. Later, in Uhlrig, we reexamined the elements of a substantive

due process claim in light of a subsequent Supreme Court opinion, Collins v. City

of Harker Heights, 503 U.S. 115 (1992). In Uhlrig, where a mental hospital

therapist was killed by a patient, we held that a plaintiff asserting such a claim

must show that the challenged conduct was “reckless” as defined by Medina, and

must further show that “such conduct, when viewed in total, is conscience

shocking.” Uhlrig 64 F.3d at 574 (citing Collins, 503 U.S. at 126-30). 1



1
       “[T]o satisfy the ‘shock the conscience’ standard, a plaintiff must do more
than show that the government actor intentionally or recklessly caused injury to
the plaintiff by abusing or misusing government power. That is, the
plaintiff must demonstrate a degree of outrageousness and a magnitude of
potential or actual harm that is truly conscience shocking.” Uhlrig, 64 F.3d at
574.

                                           -9-
      We applied Uhlrig’s conscience-shocking standard in Liebson v. New

Mexico Corrections Dep’t, 73 F.3d 274 (10th Cir. 1996), where, like here, a

prison librarian was raped by an inmate, and alleged that corrections officials

violated her substantive due process rights by recklessly failing to provide her

with adequate security. We concluded that the defendants’ negligence in

removing a corrections officer from the library for the librarian’s protection was

not “‘so egregious, outrageous and fraught with unreasonable risk so as to shock

the conscience.’” Id. at 276 (quoting Uhlrig, 64 F.3d at 576).

      In this case, the district court applied our Liebson analysis, and found, on

similar facts, that plaintiff failed to present evidence that the defendants’ conduct

was conscience-shocking. However, the Supreme Court has recently granted

certiorari in a case in order to address the legal standard of conduct necessary to

establish a substantive due process violation in a police pursuit case. See Lewis

v. Sacramento County, 98 F.3d 434 (9th Cir. 1996), cert. granted, 65 U.S.L.W.

3793, 3798 (U.S. June 2, 1997) (No. 96-1337). Circuit courts are divided as to

whether a state actor’s conduct must display “deliberate indifference” or “reckless

disregard,” as we initially held in Medina, or must meet the higher “shock the

conscience,” standard, as we subsequently adopted in Uhlrig and Liebson.

Nevertheless, we conclude that there is no need to abate this case pending the

Lewis decision, because we find that defendants’ conduct in this case did not rise


                                         -10-
to the level of either the “conscience-shocking” standard or the “deliberately

indifferent or reckless disregard” standard. 2

      “An act is reckless when it reflects a wanton or obdurate disregard or

complete indifference to risk, for example ‘when the actor does not care whether

the other person lives or dies, despite knowing that there is a significant risk of

death’ or grievous bodily injury.” Medina, 960 F.2d at 1496 (quoting Archie v.

City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) (en banc)). Plaintiff’s

evidence does not show that defendants’ conduct displayed such indifference or

recklessness.

      The evidence supports, at most, a claim that defendants’ failure to provide

a reasonably safe work environment was negligent, which, as the Supreme Court

explained in Collins, is insufficient to support a substantive due process violation

claim. See 503 U.S. at 126. In Collins, the Supreme Court held that a

governmental employer’s failure to warn or train its employees about known

hazards in the workplace did not support a substantive due process claim. It



2
       We issued an opinion in Williams v. City & County of Denver, 99 F.3d
1009 (10th Cir. 1996), vacated & reh'g en banc granted, No. 94-1190 (10th Cir.
Mar. 3, 1997), in which we held that, under Collins, 503 U.S. 115 “a substantive
due process violation requires (1) that the defendant act with reckless intent, and
(2) that the defendant's conduct shock the conscience.” Williams, 99 F.3d at
1015. We subsequently vacated our opinion in Williams, pending the Supreme
Court’s decision in Lewis.


                                         -11-
emphasized the importance of respecting the competing social, political and

economic forces that shape policy-makers’ public safety decisions, and explained

that “[t]he Due Process Clause ‘is not a guarantee against incorrect or ill-advised

personnel decisions.’” Id. at 129-29 (quoting Bishop v. Wood, 426 U.S. 341, 350

(1976).

      Here, as in Collins, plaintiff’s evidence that defendants failed to provide

her with adequate security does not constitute a constitutionally arbitrary

deprivation of her life and liberty. See Collins, 503 U.S. at 129-30. The record

indicates that MACC lacked sufficient security officers to make the required

hourly security checks of the library and other prison areas, and lacked funds to

provide its employees with sufficient two-way radios or body alarms. As the

district court correctly found, “there is no evidence that defendants intentionally

isolated plaintiff or took affirmative steps to place her in danger. . . .” Dist. Ct.

order at 8. Nor do we find that their conduct reflects a wanton or obdurate

disregard or complete indifference to risk.

      Moreover, we agree with the district court that, even if we assume for the

purpose of argument that plaintiff had proven a cognizable § 1983 claim, she

failed to demonstrate that the due process rights at issue were so clearly

established in June 1993 that reasonable officials in defendants’ situation would




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have understood their conduct violated those rights. See Liebson, 73 F.3d at

277-78. Thus, defendants are entitled to qualified immunity.

      Accordingly, the judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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