S.M. v. Michael Krigbaum

United States Court of Appeals

For the Eighth Circuit

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No. 14-3704

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S.M., et al.

lllllllllllllllllllll Plaintiffs - Appellees

v.

Michael Krigbaum, Sheriff

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: September 23, 2015

Filed: December 9, 2015

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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.

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LOKEN, Circuit Judge.

The Adult Drug Court, part of Missouri’s 45th Judicial Circuit, is a post-plea

program in which non-violent drug offenders’ sentences provide treatment and

rehabilitation and avoid felony convictions. In this 42 U.S.C. § 1983 action, five

female Drug Court participants (collectively, “plaintiffs”) seek damages for injuries

resulting from sexual abuse by Scott Edwards, a Lieutenant in the Lincoln County

Sheriff’s Department, while he acted as “tracker” for the Drug Court.1 Plaintiffs

alleged that Edwards violated their substantive due process rights. They also asserted

claims against Lincoln County, its Sheriff, Michael Krigbaum, and Heather Graham-

Thompson, an independent contractor who served as Drug Court Administrator,

alleging that inadequate policies and their failure to supervise Edwards caused his due

process violations. Krigbaum and Graham-Thompson moved for summary judgment

based on qualified immunity. The district court granted Graham-Thompson qualified

immunity and denied Krigbaum qualified immunity. Krigbaum appeals. Reviewing

the denial of qualified immunity de novo, we reverse.

I. Background.

A Memorandum of Understanding (“MOU”) established the Drug Court in

August 2006. The MOU was signed by two 45th Judicial Circuit Judges, who agreed

to serve as presiding Drug Court Judges; the Prosecuting Attorneys and Sheriffs of

Lincoln and Pike Counties; a probation and parole officer; a representative of the

criminal defense bar; a substance abuse treatment provider; and the Administrator.

The MOU recited broad “core competencies” for each team member. The county

sheriffs agreed to provide “a monitoring function to the team (along with supervision

and treatment): i.e., going on joint home visits, reporting on a participant’s activities

in the community, and supervising participation in community service.” The Drug

Court Policies and Procedures Manual provided that “[t]he 45th Judicial Circuit will

establish a standing team.” It identified team members as including a “Tracker” from

the Lincoln County Sheriff’s Department. The tracker’s role was:

to conduct home visits and other participant contact in the community,

as determined by the drug court team. The duties of the tracker will be,

but not limited to, conduct home visits, inspect participants’ homes for

1

Edwards pleaded guilty to federal charges that, while acting under color of

law, he deprived plaintiffs of their rights. See 18 U.S.C. § 242.

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indications of drug and/or alcohol use, curfew compliance, conduct

breathalyzer tests, on-site UA [urine analysis] tests and employment

verification. If the tracker finds that the participant has violated drug

court policy, he will contact the judge to determine if the participant

should be taken into custody as a sanction. The Tracker will complete

the “tracker reporting form” and return it to the case manager prior to

weekly staffing and will provide input, as needed, on participant

compliance at weekly staffing.

Krigbaum’s predecessor as Lincoln County Sheriff signed the MOU and

assigned Edwards to be the part-time Drug Court tracker. A full-time employee of

the Sheriff’s Department, Edwards was paid by Lincoln County. The Sheriff’s

Department budget received partial “reimbursement” from the Drug Court for

Edwards’s tracking activities. Edwards pleaded guilty to sexually assaulting

plaintiffs between February 1, 2009, and November 30, 2010. The Drug Court team

and Sheriff Krigbaum learned of the sexual assaults on December 1, when plaintiff

S.M. gave an audiotape incriminating Edwards to her probation officer. Krigbaum

immediately spoke to Edwards about the allegations and asked another police

department to investigate. That evening, Krigbaum told Edwards he would be fired,

then allowed Edwards to resign.

Krigbaum testified that Edwards was working as tracker when Krigbaum was

elected Sheriff in 2008 and took office in January 2009. Krigbaum did not read the

Drug Court Manual or the MOU, did not know how they described the tracker’s

duties, and did not evaluate Edwards’s performance as tracker. Krigbaum believed

Edwards reported to the Drug Court team and considered the Drug Court Judge or the

Commissioner to be Edwards’s supervisor when he was acting as tracker. Not

surprisingly, government participants who signed the MOU all denied responsibility

for supervising Edwards as tracker and denied knowledge of his unlawful actions.

Circuit Judge James Sullivan, who served as Drug Court Commissioner, Drug Court

Judge Bennett Burkemper, and Administrator Graham-Thompson identified Sheriff

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Krigbaum as Edwards’s supervisor. Edwards considered Administrator Graham-

Thompson his supervisor.

The Sheriff is responsible for Sheriff’s Department policies. One policy --

designed to protect both officers and suspects -- provided that “an officer who took

someone of the opposite sex . . . into custody would report on the radio their mileage

when they started and when they stopped.” This policy was not applied to Edwards

while working as tracker; he reported only when he started and ended tracker duty.

There was evidence that other Drug Court team members had some concerns about

Edwards before his sexual assaults were revealed. He took female participants who

were temporarily in jail for non-compliance out for cigarette breaks, which was

against jail policy. Graham-Thompson heard third-hand that Edwards had made “an

uncomfortable remark” to plaintiff C.A., which Commissioner Sullivan addressed

with Edwards. Just before Edwards’s misconduct came to light, Sullivan learned that

Edwards had moved plaintiff S.M. into a motel room and told Edwards this was

inappropriate. There is no evidence Krigbaum was told about any of these incidents.

The district court denied Krigbaum qualified immunity because, while there

was “no evidence . . . Krigbaum received notice of a pattern of unconstitutional acts,”

he did not impose the policy of radioing mileage when Edwards as tracker took a

female participant into custody, and “there is a genuine issue whether any lack of

notice is attributable to Krigbaum turning a blind eye to portentous indications such

as Edwards taking drug court participants out of the jail to smoke cigarettes.”

II. Jurisdiction.

Qualified immunity shields a public official from damage liability unless the

official’s actions violate “clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Qualified immunity protects “all but the plainly incompetent or those

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who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). When

a district court denies a defendant summary judgment based on qualified immunity,

“the defendant may immediately appeal the ‘purely legal’ issue of ‘whether the facts

. . . support a claim of violation of clearly established law.’” Kahle v. Leonard, 477

F.3d 544, 549 (8th Cir.), cert. denied sub nom. Malone v. Kahle, 552 U.S. 826 (2007),

quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985). But we do not have

jurisdiction to review issues of “‘evidence sufficiency,’ i.e., which facts a party may,

or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313 (1995).

Plaintiffs argue that we lack jurisdiction over this appeal because Krigbaum is

challenging evidence sufficiency, not a “purely legal” issue. This contention is

without merit. “Denial of summary judgment often includes a determination that

there are controverted issues of material fact . . . and Johnson surely does not mean

that every such denial of summary judgment is nonappealable.” Behrens v. Pelletier,

516 U.S. 299, 312-13 (1996). In these cases, we have jurisdiction to decide, viewing

the facts in the light most favorable to plaintiffs, whether a reasonable fact-finder

could find a violation of plaintiffs’ rights, whether the law establishing the violation

was clearly established at the time in question, what was known to a person who

might be shielded by qualified immunity, and the reasonableness of defendant’s

actions. See Kahle, 477 F.3d at 549-50; see also Scott v. Harris, 550 U.S. 372, 380

(2007); Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014); Jones v. McNeese,

746 F.3d 887, 895 (8th Cir. 2014).

III. The Merits.

Government officials are personally liable only for their own misconduct.

Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010), citing Otey v. Marshall, 121 F.3d

1150, 1155 (8th Cir. 1997). Thus, “[t]he doctrine of qualified immunity requires an

individualized analysis of each officer’s alleged conduct.” Walton, 752 F.3d at 1125

(quotation omitted). When a supervising official who had no direct participation in

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an alleged constitutional violation is sued for failure to train or supervise the

offending actor, the supervisor is entitled to qualified immunity unless plaintiff

proves that the supervisor (1) received notice of a pattern of unconstitutional acts

committed by a subordinate, and (2) was deliberately indifferent to or authorized

those acts. Livers v. Schenck, 700 F.3d 340, 355 (8th Cir. 2012).

(1) This rigorous standard requires proof that the supervisor had notice of a

pattern of conduct by the subordinate that violated a clearly established constitutional

right. Allegations of generalized notice are insufficient. “To impose supervisory

liability, other misconduct must be very similar to the conduct giving rise to liability.”

Id. at 356. For purposes of this appeal, Krigbaum concedes that Edwards’s sexual

assaults deprived plaintiffs of a clearly established constitutional right to substantive

due process when he committed “an egregious, nonconsensual entry into the body

which was an exercise of power without any legitimate governmental objective.”

Johnson v. Phillips, 664 F.3d 232, 239 (8th Cir. 2011) (quotation omitted). Sheriff

Krigbaum is entitled to qualified immunity unless he had notice of a pattern of

conduct that was sufficiently egregious in nature. Qualified immunity from

supervisory liability turns on what Sheriff Krigbaum knew of Edwards’s actions as

tracker, not what Drug Court Administrator Graham-Thompson or Commissioner

Sullivan knew.

The district court found that “[t]here is no evidence . . . Krigbaum received

notice of a pattern of unconstitutional acts,” and that “Krigbaum did not know of any

misconduct . . . nor had he heard any rumors about Edwards paying particular

attention to women.” These findings establish that plaintiffs did not meet their

burden to prove Krigbaum received notice of a pattern of unconstitutional acts;

therefore, Krigbaum is entitled to qualified immunity as a matter of law. See Livers,

700 F.3d at 357. The district court reasoned that Krigbaum’s “lack of notice” could

be “attributable to Krigbaum turning a blind eye to portentous indications such as

Edwards taking drug court participants out of the jail to smoke cigarettes.” Assuming

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without deciding that “turning a blind eye” could ever constitute actual notice, and

that Krigbaum knew of this conduct, being aware that Edwards violated jail policy

by taking Drug Court participants out for a cigarette break falls far short of notice of

a pattern of conduct that violated plaintiffs’ rights to substantive due process.2 Like

the defendant sheriff in Walton, Krigbaum acted to fire Edwards as soon as Krigbaum

learned of Edwards’s egregious misconduct.

(2) In addition to notice of a pattern of unconstitutional conduct, plaintiffs must

present sufficient evidence that Krigbaum acted with deliberate indifference to their

rights. When the issue is qualified immunity from individual liability for failure to

train or supervise, deliberate indifference is a subjective standard that “entails a level

of culpability equal to the criminal law definition of recklessness.” B.A.B., Jr. v. Bd.

of Educ. of St. Louis, 698 F.3d 1037, 1040 (8th Cir. 2012); see Liebe v. Norton, 157

F.3d 574, 579 (8th Cir. 1998). “[Plaintiffs] must prove [Krigbaum] personally knew

of the constitutional risk posed by [his] inadequate training or supervision” of

Edwards. Walton, 752 F.3d at 1118. To be deliberately indifferent, an “official must

both be aware of facts from which the inference could be drawn that a substantial risk

of [unconstitutional] harm exists, and he must also draw the inference.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994).3

In their Memorandum in Opposition to the district court, plaintiffs noted our

recent decision in Walton confirming this subjective standard and stated:

2

The district court also noted a 2012 incident in which Krigbaum hugged and

kissed his female deputy. This conduct occurred two years after Edwards’s firing and

did not involve similar misconduct.

3

The Supreme Court applied an objective standard of deliberate indifference

to a failure-to-supervise claim against a municipality in Canton v. Harris, 489 U.S.

378, 390 (1989). We noted this distinction in Walton, 752 F.3d at 1117-18, and the

Supreme Court carefully explained it in Farmer, 511 U.S. at 840-42.

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Plaintiffs acknowledge that Sheriff Krigbaum had no actual knowledge

of these facts or any other facts that a supervisor would actually know

from engaging in even a modicum of actual supervision, so if the test is

a subjective one, he presumably escapes liability.

The district court erred when it ignored both this fatal admission and our decision in

Walton and denied Krigbaum qualified immunity. Likewise, the district court erred

in ruling that “[r]egardless whether Krigbaum was deliberately indifferent, it is

disputed whether the Sheriff of Lincoln County was.” Krigbaum is personally liable

only for his own misconduct.

The Drug Court’s multi-agency membership resulted in significant confusion

and ignorance regarding who was supervising Edwards on a day-to-day basis when

he served as tracker. In denying summary judgment, the district court declared that

Krigbaum’s “ability and duty to supervise Edwards” is a genuine issue of material

fact. On appeal, citing no supporting authority, plaintiffs assert that “[f]ailing to

supervise when one has a duty to supervise is to be deliberately indifferent.” We

reject this contention. Krigbaum could not be deliberately indifferent in failing to

satisfy a duty he did not know he had. “[L]iability for negligently inflicted harm is

categorically beneath the threshold of constitutional due process.” Cty. of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see Daniels v. Williams, 474 U.S.

327, 329-30 (1986). The claim that Sheriff Krigbaum unreasonably failed to exercise

a duty to supervise Edwards to prevent him from harming plaintiffs “is a claim of

negligence that cannot be the basis of a constitutional tort claim.” Moore v. Briggs,

381 F.3d 771, 774 (8th Cir. 2004) (quotation omitted).

Plaintiffs place great emphasis on a statement in Kahle that “[a] supervisor can

act with deliberate, reckless indifference even when he does not act knowingly.” 477

F.3d at 551-52 (quotation omitted). But that statement simply clarified that a

supervisor can be held liable if he knows of a substantial risk of harm, even if he was

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not “subjectively aware of the actual harm that the plaintiff experienced.” 477 F.3d

at 551. In Kahle, the jail supervisor knew that a male trainee was breaking the rules

by going in and out of a female inmate’s cell after lockdown and ignored the obvious

risk of sexual assault. 477 F.3d at 552. Krigbaum had no information that would

have raised an inference that Edwards was violating his training and duties as a police

officer by sexually assaulting the Drug Court participants he monitored.

Plaintiffs also rely on our statement that to be liable “[t]he supervisor must

know about the conduct and facilitate it, approve it, condone it, or turn a blind eye

for fear of what [he] might see.” Ottman v. City of Independence, 341 F.3d 751, 761

(8th Cir. 2003) (emphasis added), quoting Ripson v. Alles, 21 F.3d 805, 809 (8th Cir.

1994). The statement preceded the Supreme Court’s decision in Farmer and therefore

must be ignored to the extent it is inconsistent with the subjective test for deliberate

indifference. Here, plaintiffs presented no evidence that Krigbaum had knowledge

of sexual misconduct by Edwards that would create an inference Krigbaum turned a

blind eye to or consciously disregarded a substantial risk of the constitutional harm

Edwards was causing -- conscience-shocking violations of plaintiffs’ substantive due

process rights by a member of the Sheriff’s Department performing duties for the

Drug Court. See Kahle, 477 F.3d at 551.

(3) Finally, plaintiffs argue that Sheriff Krigbaum should be denied qualified

immunity from their claims of inadequate policy based on Krigbaum’s failure to

enforce the policy requiring Sheriff’s Department deputies to call in mileage when

transporting persons of the opposite sex. A supervisor may be liable if he “is

involved in creating, applying, or interpreting a policy that gives rise to

unconstitutional conditions.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014)

(quotation omitted). The policy in question was designed to protect persons; it did

not “give rise to unconstitutional conditions.”

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The Order of the District Court denying Sheriff Krigbaum qualified immunity

is reversed. We deny plaintiffs’ Motion for Prompt Dismissal of Appeal.

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