                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                            February 12, 2013
                                   PUBLISH                 Elisabeth A. Shumaker
                                                               Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 TRACY KEITH,

       Plaintiff - Appellee,

 v.                                                   No. 12-3101

 RICHARD D. KOERNER,

       Defendant - Appellant,

 and

 ANANSTACIO GALLARDO,

       Defendant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                 (D.C. No. 2:11-CV-02281-KHV-JPO)


John Wesley Smith, Assistant Attorney General (Michael J. Smith, Assistant
Attorney General, and Jeffery A. Chanay, Deputy Attorney General, on the briefs)
Office of Attorney General Derek Schmidt, Topeka, Kansas, for Defendant -
Appellant.

Paul W. Hughes (Charles A. Rothfeld, Miriam R. Nemetz, and Michael B.
Kimberly of Mayer Brown, L.L.P., Washington, D.C.; John Kurtz of Hubbard &
Kurtz, L.L.P., Kansas City, Missouri, with him on the briefs), for Plaintiff -
Appellee.


Before KELLY, MURPHY, and TYMKOVICH, Circuit Judges.
KELLY, Circuit Judge.



      Plaintiff-Appellee Tracy Keith, a former inmate, filed a civil rights

complaint pursuant to 42 U.S.C. § 1983, alleging violations of her rights under

the Eighth Amendment. App. 2. She named as Defendants former warden

Richard Koerner and other Kansas Department of Corrections employees. Id.

Mr. Koerner appeals from the district court’s denial of qualified immunity. See

Keith v. Werholtz, No. 11-2281-KHV, 2012 WL 1059858 (D. Kan. Mar. 28,

2012). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



                                    Background

      Ms. Keith was an inmate at the Topeka Correctional Facility (“TCF”), an

all-female state prison, between November 2006 and May 2010. App. 5. While

there, she participated in a vocational training program. Id. at 23. Her instructor,

Ananstacio Gallardo, engaged in unlawful sexual acts with Ms. Keith in October

of 2007, and she became pregnant as a result. Id. at 7, 23. The pregnancy was

terminated. Id. at 7. The Topeka Police Department then conducted an

investigation which ultimately led to Mr. Gallardo pleading guilty in June 2008 to

a charge of unlawful sexual relations and two charges of trafficking contraband.

Id. at 23, 126–37.


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      In May 2011, Ms. Keith filed a civil rights complaint alleging that prison

employees violated her constitutional rights. Id. at 1–39. Specifically, she

alleged that Defendants created and allowed a policy or culture of sexual

misconduct at TCF which placed her at substantial risk of harm, failed to take

reasonable measures to abate the culture of sexual misconduct, and were

deliberately indifferent to this substantial risk of harm. Id. at 34–35. She

incorporated as part of her complaint a 2010 Kansas Legislative Post Audit

Report (“Audit Report”) that contained multiple findings regarding the situation

at TCF during and subsequent to her incarceration. Id. at 23–31. Among other

things, Ms. Keith alleged facts indicating previous incidents of both sexual

misconduct and undue familiarity, inconsistent disciplinary responses to such

incidents, structural policy problems at TCF, and a lack of appropriate training

programs. Id. at 13–31. Defendants filed a motion to dismiss, arguing in part

that they were entitled to qualified immunity. Id. at 51–59. The district court

granted qualified immunity to all remaining Defendants except Mr. Koerner and

Mr. Gallardo and entered a default judgment against Mr. Gallardo. Keith, 2012

WL 1059858, at *7; App. 274.



                                     Discussion

      The denial of qualified immunity is an appealable final order under 28

U.S.C. § 1291 if it turns on legal issues. Brown v. Montoya, 662 F.3d 1152, 1162

                                         -3-
(10th Cir. 2011). Determining whether a complaint sufficiently alleges a clearly

established violation of law is an issue of law and, therefore, an appealable final

decision over which we have jurisdiction. Ashcroft v. Iqbal, 556 U.S. 662,

674–75 (2009). We review this decision de novo, applying the same standards as

the district court. Brown, 662 F.3d at 1162.

       “In resolving a motion to dismiss based on qualified immunity,” the court

considers (1) “whether the facts that a plaintiff has alleged make out a violation

of a constitutional right,” and (2) “whether the right at issue was clearly

established at the time of defendant’s alleged misconduct.” Id. at 1164 (quotation

omitted); see also Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (describing

the two-part test to analyze a qualified immunity defense and holding that courts

can undertake it in either order).

      As an initial matter, it is clearly established that a prison official’s

deliberate indifference to sexual abuse by prison employees violates the Eighth

Amendment. See Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008); see also

Ortiz v. Jordan, 131 S. Ct. 884, 892–93 (2011). Such a violation occurs where

“the official knows of and disregards an excessive risk to inmate health or

safety,” and there is an affirmative link between the constitutional deprivation and

the supervisor’s actions. Tafoya, 516 F.3d at 916 (quotation omitted); see also

Dodds v. Richardson, 614 F.3d 1185, 1198 n.6, 1204 (10th Cir. 2010). This

“affirmative link” has had three related, indistinct prongs in our case law: “(1)

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personal involvement, (2) sufficient causal connection, and (3) culpable state of

mind.” Dodds, 614 F.3d at 1195, 1199. We have held that a plaintiff may

establish the first prong with evidence that “the defendant promulgated, created,

implemented or possessed responsibility for the continued operation of a policy”

that caused the constitutional harm. Id. at 1199. The question here, then, is

whether Ms. Keith has alleged facts sufficient to support such a deliberate

indifference violation by Mr. Koerner.

      To state a claim, a plaintiff must only allege enough factual matter in her

complaint to make her “claim to relief . . . plausible on its face” and provide fair

notice to a defendant. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The district court found that Ms. Keith did so. Keith, 2012 WL 1059858, at *7.

In particular, it noted that she alleged facts that could tend to establish that Mr.

Koerner “was responsible for managing TCF and knew about multiple instances

of sexual misconduct at TCF over a period of years, inconsistently disciplined

corrections officers who engaged in prohibited sexual conduct with inmates and

thus purportedly tolerated at least an informal policy which permitted sexual

contact between prison staff and inmates.” Id.

      On appeal, Mr. Koerner argues that Ms. Keith relies heavily on the Audit

Report, created years after the events of which she complains and including

events and statistics that post-date those events. Aplt. Br. 15. He suggests that

applying a standard of objective reasonableness, the mere number of incidents is

                                          -5-
insufficient to demonstrate an unreasonable response to a substantial risk, id. at

16, a point with which we agree. He further argues that the complaint omits the

response of the Secretary of Corrections, the inconsistent discipline in the report

deals with claims of undue familiarity, not sexual misconduct, and is not specific

as to the time period. Id. at 17–18. Moreover, the incidents relied upon were

reported, investigated, and acted upon, demonstrating a reasonable response, and

certainly not one that suggests deliberate indifference. Id. at 18–19.

      Mr. Koerner characterizes Ms. Keith’s argument as: because Mr. Koerner

had the responsibility for managing the facility and imposing discipline, and did

in fact discipline employees for undue familiarity and sexual misconduct, he must

have been aware of Mr. Gallardo’s criminal intent and did nothing to prevent it.

Aplt. Reply Br. 4–5. Of course, that alone would be insufficient to withstand a

motion to dismiss. But there is more.

       We have reviewed the complaint and conclude that on a motion to

dismiss, Ms. Keith has provided notice and nudged her claims beyond the

conceivable to the plausible given that we must accept well-pleaded allegations as

true. First, Ms. Keith’s complaint refers to facts, primarily from the Audit

Report, that could support a conclusion that Mr. Koerner was aware of multiple

incidents of unlawful sexual conduct at TCF. Aplee. Br. 8–9. For example, Ms.

Keith points to reports of at least 54 incidents of sexual misconduct and 33

incidents of undue familiarity between 2005 and 2009 and to a 2005 lawsuit over

                                         -6-
strip searches at TCF, suggesting that Mr. Koerner may have had knowledge of

these accounts. App. 87, 14. 1 Second, Ms. Keith alleges facts indicating that

discipline in response to complaints of sexual misconduct and undue familiarity at

TCF was inconsistent. Aplee. Br. 9–11. In particular, she points to the Audit

Report which describes multiple failures to properly investigate allegations and to

terminate employees when allegations were substantiated. App. 13–17, 26–28.

Third, Ms. Keith alleges facts that tend to show the existence of structural policy

problems that contributed to the unlawful sexual conduct here. Aplee. Br. 11–12.

Specifically, she again cites to the Audit Report which determined that policy

decisions—particularly decisions not to address known problems with the

vocational training program and the insufficient use of cameras to monitor

inmates and staff—made TCF “ripe for staff misconduct.” App. 19, 23–24.

Fourth, Ms. Keith alleges that the lack of training programs tailored to the all-

female population of TCF contributed to the misconduct here. Aplee. Br. 13–14;

App. 29. These allegations go beyond formulaic labels and conclusions and meet

our intermediate pleading standard. See Twombly, 550 U.S. at 555; Khalik v.



      1
         We note that many of the objections of Mr. Koerner are better suited to a
summary judgment motion where the substance of allegations must be admissible.
For example, the repeated claim that Mr. Koerner had knowledge of all these
incidents based upon “information and belief” would be insufficient to comply to
the requirement that statements be made based upon personal knowledge. Fed. R.
Civ. P. 56(c)(4); Tavery v. United States, 32 F.3d 1423, 1427 n.4 (10th Cir.
1994).

                                         -7-
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

      Mr. Koerner’s arguments to the contrary do not carry the day. He argues

that although he may have had knowledge of other incidents of sexual

misconduct, he had no indication of potential harm to Ms. Keith specifically.

Aplt. Br. 18. But an “official’s knowledge of the risk need not be knowledge of a

substantial risk to a particular inmate, or knowledge of the particular manner in

which injury might occur.” Tafoya, 516 F.3d at 916.

      He further argues that due to inconsistent facts, the evidence will ultimately

show the reasonableness of his response. Aplt. Br. 17–19. As noted, he

maintains that the disciplinary inconsistencies primarily regarded claims of undue

familiarity rather than sexual misconduct. Aplt. Br. 18. He also challenges Ms.

Keith’s selective reading of the Audit Report which came out three years after the

events in question. Aplt. Br. 16–17. But these disputes involve issues of

admissibility and of what inferences to draw from the facts. In sum, these are

matters for later in these proceedings. Smith v. United States, 561 F.3d 1090,

1104 (10th Cir. 2009).

      The cases Mr. Koerner relies upon for a contrary result are not persuasive

in these circumstances. For example, in Hovater v. Robinson, a former female

inmate sued the county sheriff under § 1983 after being assaulted by a detention

officer. 1 F.3d 1063 (10th Cir. 1993). This court held that there was no basis for

showing a substantial risk of harm to an inmate based solely on the premise that

                                        -8-
every female inmate faces a risk of harm from every male prison guard. Id. at

1068. Ms. Keith’s complaint, however, is based on much more than the fact she

was a female inmate. Likewise, in Barney v. Pulsipher, we held that the plaintiff

presented no evidence of the actual knowledge required for § 1983 liability for

deliberate indifference. 143 F.3d 1299, 1310 (10th Cir. 1998). Here, however,

Ms. Keith has alleged facts that, if established, might lead to a determination of

actual knowledge. And, unlike both Hovater and Barney, we are not at the

summary judgment stage. At this point, Ms. Keith has alleged facts sufficient to

state a plausible claim to relief and survive a motion to dismiss. See Gonzales v.

Martinez, 403 F.3d 1179, 1186–87 (10th Cir. 2005) (holding pleadings were

sufficient to permit a claim against a sheriff for deliberate indifference when a

sexual assault occurred because he ignored similar complaints in the past).

      Two final matters require our attention. First, Mr. Koerner also argued

before the district court that he was entitled to dismissal because Ms. Keith’s

claims should be barred by a two-year statute of limitations. The district court,

however, found that Ms. Keith sufficiently alleged a factual basis for tolling the

statute. Keith, 2012 WL 1059858, at *5; see also App. 4–5. Mr. Koerner

“requests that this Court take up the statute of limitations as a pendent issue only

if this Court reverses the district court’s denial of qualified immunity.” Aplt. Br.

3; see also id. at 5. It is unclear why we would need to reach the statute of

limitations issue if we were to reverse and grant Mr. Koerner qualified immunity.

                                         -9-
Nevertheless, because we affirm the denial of qualified immunity, we do not

reach this issue. Moreover, because the district court’s ruling on the statute of

limitations is neither “inextricably intertwined with the appealable decision” nor

“necessary to ensure meaningful review of the appealable one,” pendent appellate

jurisdiction is unavailable. Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d

906, 915 (10th Cir. 2008) (quotations omitted).

      Finally, Ms. Keith attempts to supplement her brief. Fed. R. App. P. 28(j).

The material submitted—correspondence from the federal government—is not

proper new authority but rather additional evidence not submitted to the district

court. Therefore, we do not consider it. See Utah v. U.S. Dep’t of Interior, 535

F.3d 1184, 1195 n.7 (10th Cir. 2008).

      AFFIRMED. Mr. Koerner’s motion to strike is GRANTED.




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