                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 30 2002
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 CYNTHIA COYKENDALL, as
 personal representative of the estate of
 Christina T. Anderson, individually
 and as mother and next friend of Faith
 Nowel Anderson,

              Plaintiff - Appellant,
                                                       No. 02-1155
 v.                                                 D.C. No. 98-B-1268
                                                      (D. Colorado)
 ROBERT L. HAWKINS, individually;
 BARBARA MCDONELL,
 individually; and MICHAEL
 WILLIAMS, individually,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

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

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without



      *
       This order and judgment is not binding precedent, except under the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.
oral argument.

      Ms. Anderson and Mr. Hawkins died during the pendency of this appeal;

however, both parties’ interests and rights are represented here. Ms. Anderson’s

personal representative has been substituted as the Appellant and is referred to

herein as “Appellant,” and Ms. Anderson is referred to by name. Mr. Hawkins

has been indemnified by the State of Colorado, which proceeds with his

representation on appeal. The summary judgment in favor of Mr. Hawkins is the

only judgment that has been appealed; therefore the other named Defendants-

Appellees in this case are not involved in this appeal. Mr. Hawkins alone is

referred to herein as “Appellee.” 1

      This is a state prisoner § 1983 civil rights appeal stemming from Ms.

Anderson’s sexual assault while she was temporarily incarcerated at the Colorado

Mental Health Institute in Pueblo where Appellee was the superintendent.

Appellant alleges that while housed at the Pueblo mental health facility, Ms.

Anderson was improperly placed in Ward F-1 where she was the only woman

among twenty-seven male prisoners without meaningful segregation. Appellant

further alleges that while housed in this facility, Ms. Anderson was sexually


      1
       In connection with the death of Mr. Hawkins, the state filed a Suggestion
of Death, to which the Appellant has filed a Motion for Leave to File Response on
the Suggestion of Death Out of Time. We hereby GRANT the motion to file out
of time and accept the Appellant’s Response on the Suggestion of Death.


                                         -2-
assaulted.

      Ms. Anderson claimed in the district court that Appellee violated her right

to protection against cruel and unusual punishment pursuant to the Eighth

Amendment. The district court granted Appellee’s motion for summary judgment

with respect to the Eighth Amendment claim on the basis of qualified immunity.

Appellant appeals the grant of summary judgment.

      Appellant asserts that Appellee violated Ms. Anderson’s Eighth

Amendment right to protection from cruel and unusual punishment by failing to

adequately supervise her incarceration. Appellee allowed Ms. Anderson to be

placed in a facility with twenty-seven male prisoners without adequate

segregation despite information suggesting she was in danger of sexual assault.

We agree with the district court that Appellee is entitled to qualified immunity

with respect to the constitutional claim.

      The doctrine of qualified immunity shields government officials from the

burden of standing trial “unless their conduct violates ‘clearly established

constitutional or statutory rights.’” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985); Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999). Appellant

therefore bears the burden of establishing that 1) Appellee violated Ms.

Anderson’s constitutional rights, and 2) that those rights were clearly established

at the time of the alleged deprivation. Greene, 174 F.3d at 1142.


                                            -3-
      In a § 1983 claim based on a failure to supervise, a plaintiff must show that

the constitutional deprivation occurred and that there is “an ‘affirmative link’ . . .

between the [constitutional] deprivation and [] the supervisor’s . . . ‘exercise of

control or direction, or his failure to supervise.’” Meade v. Grubbs, 841 F.2d

1512, 1527 (10th Cir. 1988) (quoting Specht v. Jensen, 832 F.2d 1516, 1524 (10th

Cir. 1987)). Furthermore, in an analogous case, the Supreme Court recognized

that the relevant test is a subjective one noting that

      a prison official cannot be found liable under the Eighth Amendment
      for denying an inmate humane conditions of confinement unless the
      official knows of and disregards an excessive risk to inmate health or
      safety; the official must both be aware of facts from which the
      inference could be drawn that a substantial risk of serious harm
      exists, and he must also draw the inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

      This case was resolved in the district court at the summary judgment stage.

Therefore, we must view all evidence in the light most favorable to the Appellant.

However, Appellant cannot rely upon her allegations alone, “without ‘any

significant probative evidence tending to support the complaint.’” Schell v.

Prose, 125 F.3d 863 (Table), 1997 WL 618725, at **1 (10th Cir.) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

      While the facts alleged by Appellant would indicate possible constitutional

violations by the Ward F-1 staff, our inquiry is limited to a review of Appellee’s

supervision of the Ward F-1 staff. Appellant has alleged that Appellee knew that

                                          -4-
mentally ill women were housed with male inmates and that he specifically knew

that Ms. Anderson was in danger of sexual assault in the male ward. Specifically,

Appellant points to complaints by other female inmates of previous sexual

assaults of a much less egregious nature and to reports from the Ward F-1 staff

regarding Ms. Anderson’s behavior. The facts further indicate that Appellee

responded to these reports by ordering supervision and counseling for Ms.

Anderson, and that Appellee received subsequent reports that the situation had

improved.

      Viewing these facts in the light most favorable to Appellant, and even

assuming unconstitutional behavior on the part of the Ward F-1 staff, Appellant

has failed to show an “affirmative link” between the deprivation of Ms.

Anderson’s constitutional rights and Appellee’s supervision of the Ward F-1 staff.

      While Appellant has pointed to certain allegations of previous sexual

assaults as well as Ms. Anderson’s own behavioral difficulties, Appellant has not

pointed to any specific evidence suggesting that these reports or information

actually reached Appellee. The only evidence that Appellant has produced of

Appellee’s knowledge includes: 1) a report that Ms. Anderson was behaving in a

sexually provocative manner, 2) a report of a previous complaint of sexual assault

by another female inmate, and 3) the general fact that women patients were

occasionally housed in Ward F-1 with male patients.


                                        -5-
      Appellant has produced no evidence to suggest that Appellee was aware of

attempted or successful sexual assaults on Ms. Anderson in the past, or that he

was apprized of legitimate threats of future attacks. In fact, the reports received

by Appellee indicated misconduct on Ms. Anderson’s part rather than potential

threats to her safety. He responded to these reports with corrective and

preventive action and was told that the situation had improved. While Appellant

suggests that a factual issue exists as to whether Appellee actually received a

report that Ms. Anderson’s behavior had improved following the report of her

sexually provocative behavior, this factual issue does not lead to a conclusion that

Appellee knew that she faced a substantial threat of sexual assault.

      While the Supreme Court in Farmer noted that “a factfinder may conclude

that a prison official knew of a substantial risk from the very fact that the risk

was obvious,” in that case there was actual evidence of a substantial risk from

which a factfinder could reach such a conclusion. Farmer, 511 U.S. at 842. In

this case, Appellant has not produced sufficient evidence, but rather she has relied

upon her allegations alone.

      Appellant has failed to meet the “heavy burden” of showing an “affirmative

link” between the deprivation of Ms. Anderson’s constitutional rights and

Appellee’s exercise of supervision or control. Absent a genuine issue of material

fact suggesting a constitutional violation on the part of the Appellee, we need not


                                          -6-
consider whether that right was clearly established.

      After a thorough review of the briefs and the record and for substantially

the same reasons set forth in the district court’s well-reasoned March 6, 2002,

Order, we hold the district court did not err in granting summary judgment to the

Appellee with respect to the Eighth Amendment claim.

      AFFIRMED.

                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge




                                         -7-
