Ezmerelda Rivera v. Manuel Fierros, Jr.

Case: 16-10675 Document: 00514061229 Page: 1 Date Filed: 07/06/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-10675 FILED

July 6, 2017

Lyle W. Cayce

EZMERELDA RIVERA, Clerk

Plaintiff–Appellant,

v.

A. J. BONNER; DAVID B. MULL,

Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

In December 2014, Appellant Ezmerelda Rivera was sexually assaulted

by Manuel Fierros, an officer at the Hale County Jail. Rivera subsequently

brought claims under 42 U.S.C. § 1983 against Fierros, Hale County Sheriff

David Mull, and Hale County Jail Administrator A.J. Bonner. Rivera claimed

that Mull and Bonner (collectively, “Appellees”) were deliberately indifferent

in hiring Fierros and that they inadequately trained and supervised jail

employees. The district court granted summary judgment and dismissed

Rivera’s claims against Appellees. We AFFIRM.

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I. BACKGROUND

Fierros was hired as a jailer at the Hale County Jail in October 2012.

During the hiring process, Appellees became aware that Fierros had been

arrested on two occasions when he was fifteen years old—once in Randall

County and once in Potter County—for indecency with a child by sexual

contact. After learning about these arrests, Bonner purportedly called the

Randall County district attorney’s and probation offices as well as the Potter

County district attorney’s office to inquire about the incidents. Bonner claims

that no records of the arrests were found, the individuals he spoke with had no

knowledge of the charges, and “no convictions [were] shown.”

In July 2014, a senior jailer at the Hale County Jail sexually abused a

female detainee. The jailer stood outside the detainee’s cell and directed her to

perform sexual acts on herself. This incident was caught on the jail’s video

surveillance system and was reported to jail authorities by another officer who

observed the abuse. After an investigation, the jailer admitted to the abuse and

resigned. In subsequent staff briefings, jail officials purportedly reminded jail

staff that sexual exploitation of detainees was prohibited, but they did not

implement any additional training regarding sexual misconduct. Jail officials

also displayed a poster at the facility that showed a red prohibition sign across

the words “sex with inmates,” followed by “it’s a felony.” No policies or

procedures were revised in response to the incident.

Approximately six months later, in the early morning hours of December

14, 2014, Rivera was arrested for public intoxication in connection with her

husband’s arrest for driving while intoxicated. Both Rivera and her husband

were transported to the Hale County Jail, where Fierros was the officer in

charge that night. After Rivera arrived at the jail, a female officer took her into

a private room and instructed her to change into orange scrubs with no

undergarments underneath. Fierros then took over the booking process.

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Fierros escorted Rivera into the jail’s “multipurpose room,” which was used by

the jail for bookings and arraignments, as well as for inmates to meet with

attorneys and chaplains. The room was not monitored by video surveillance.

Fierros instructed two female jailers to exit the room, leaving him alone with

Rivera. Fierros then groped Rivera’s breasts and forced her to perform oral sex

on him. Fierros was left alone with Rivera for approximately fifty-five minutes,

during which time he left and reentered the room at various times. Rivera was

released from the jail the following day. After Rivera filed a complaint with

state law enforcement, she was informed that Fierros had confessed to sexually

assaulting her.

In March 2015, Rivera filed this suit against Fierros and Appellees under

42 U.S.C. § 1983. In addition to claims against Fierros, Rivera brought

Fourteenth Amendment claims against Appellees, asserting that they were

deliberately indifferent to the risks associated with hiring Fierros and that

they inadequately trained and supervised jail employees. Appellees moved for

summary judgment on the basis of qualified immunity. The district court

granted the motion for summary judgment and dismissed Rivera’s claims

against Appellees. This appeal followed.

II. DISCUSSION

“We review a summary judgment de novo, ‘using the same standard as

that employed by the district court under Rule 56.’” Newman v. Guedry, 703

F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431,

435 (5th Cir. 2000)). Summary judgment is proper “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).

Under the doctrine of qualified immunity, public officials “are shielded

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

Supreme Court has “mandated a two-step sequence for resolving government

officials’ qualified immunity claims.” Pearson v. Callahan, 555 U.S. 223, 232

(2009). A court must decide (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. Importantly, the Supreme Court held in Pearson that courts

“should be permitted to exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light

of the circumstances in the particular case at hand.” Id. at 236. At the same

time, the Supreme Court recognized that deciding the two prongs in order “is

often beneficial.” Id.

When an official pleads qualified immunity, “the burden then shifts to

the plaintiff, who must rebut the defense by establishing a genuine fact issue

as to whether the official’s allegedly wrongful conduct violated clearly

established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

However, “[b]ecause this case arises in a summary judgment posture, we view

the facts in the light most favorable to [Rivera], the nonmoving party.” City &

County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1769 (2015). That is,

“[t]he evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in [her] favor.” Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014)

(per curiam) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986)).

A. Deliberate Indifference in Hiring

“In order to establish supervisor liability for constitutional violations

committed by subordinate employees, plaintiffs must show that the supervisor

act[ed], or fail[ed] to act, with deliberate indifference to violations of others’

constitutional rights committed by their subordinates.” Wernecke v. Garcia,

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591 F.3d 386, 401 (5th Cir. 2009) (alterations in original) (internal quotation

marks omitted) (quoting Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 254

(5th Cir. 2005)). “‘[D]eliberate indifference’ to the ‘known or obvious

consequences’ of a hiring decision can amount to a constitutional violation on

the part of the decision maker.” Gros v. City of Grand Prairie, 209 F.3d 431,

433 (5th Cir. 2000) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407

(1997)). Rivera contends that Appellees were deliberately indifferent to obvious

safety risks when they hired Fierros despite his criminal record. In support of

this contention, Rivera’s expert opined that “[i]t should have been predictable

that . . . hiring a person with a known history of arrests for sexually based

offenses, without doing more to establish that the allegations were unfounded

or untrue, would expose detainees to a significant risk of sexual assault.”

When a plaintiff alleges that a supervisor inadequately considered an

applicant’s background, “‘deliberate indifference’ exists where adequate

scrutiny . . . would lead a reasonable supervisor to conclude that the plainly

obvious consequences of the decision to hire would be the deprivation of a third

party’s constitutional rights.” Id. at 433–34; accord Brown, 520 U.S. at 411.

The Supreme Court has noted that “predicting the consequence of a single

hiring decision, even one based on an inadequate assessment of a record, is far

more difficult than predicting what might flow from the failure to train a single

law enforcement officer as to a specific skill necessary to the discharge of his

duties.” Brown, 520 U.S. at 410. Accordingly, a plaintiff must show that there

was “a strong connection between the background of the particular applicant

and the specific violation alleged” such that “the hired officer was highly likely

to inflict the particular type of injury suffered.” Gros, 209 F.3d at 434. “A

showing of simple or even heightened negligence will not suffice.” Brown, 520

U.S. at 407.

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In Brown, the Supreme Court held that a county sheriff was not

deliberately indifferent in hiring a police officer who had a criminal record. Id.

at 415–16. After the officer used excessive force during an arrest, the arrestee

brought a § 1983 claim alleging that the sheriff had failed to conduct an

adequate review of the officer’s background when hiring him. Id. at 399–401.

The officer had previously pleaded guilty to several misdemeanors—assault

and battery, resisting arrest, and public drunkenness—arising from a fight

during college. Id. at 413. The sheriff’s testimony at trial indicated that, despite

obtaining a background report during the hiring process, the sheriff “did not

inquire into the underlying conduct or the disposition of any of the

misdemeanor charges.” Id. at 401, 411. Although the Supreme Court noted

that a jury could find the sheriff’s “assessment of [the officer’s] background was

inadequate,” the Court ultimately concluded that the officer’s use of excessive

force was not “a plainly obvious consequence of the hiring decision.” Id. at 412,

415. The link between the officer’s prior convictions and his use of excessive

force was too tenuous to show that the sheriff had disregarded a known or

obvious risk of injury. Id. at 412–14.

This Court has reached similar conclusions in cases involving allegations

of sexual assault. See Hardeman v. Kerr County, 244 F. App’x 593, 596 (5th

Cir. 2007) (per curiam); Gros, 209 F.3d at 436. In Gros, this Court held that

there was not a “strong causal connection” between an officer’s background and

the plaintiffs’ allegations that the officer sexually, physically, and verbally

abused them during routine traffic stops. 209 F.3d at 436. Arguing that the

police chief was deliberately indifferent in hiring the officer, the plaintiffs

pointed to “scattered statements” in the officer’s “pre-employment file that

suggest[ed] he was sometimes too aggressive” during his previous employment

with a campus police department. Id. at 435. However, the officer “had never

sexually assaulted, sexually harassed, falsely arrested, improperly searched or

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seized, or used excessive force against any third party.” Id. In addition, the

former colleagues who had characterized the officer as overly aggressive “also

had positive things to say about [him] and ultimately recommended him as a

good hire.” Id. at 435–36. In the end, this Court concluded that the comments

in the personnel file were, “at worst, mixed” and thus that the evidence was

insufficient to show deliberate indifference in hiring. Id. at 436.

Similarly, in Hardeman, an inmate alleged that a jailer “forced her to

perform oral sex on him, and took her into the shower area where he forcibly

raped her.” 244 F. App’x at 595. When the county hired the jailer several

months earlier, a record from the Texas Employment Commission indicated

that he had previously been fired by a school district for making “improper

advances towards high school (female) students.” Id. at 594–95. Though the

county conducted a background investigation, there was no evidence that the

county found out that the jailer had been fired or even contacted the school

district regarding the jailer’s previous employment. Id. at 594, 596. Yet this

Court noted that “[e]ven if the County had done a thorough job of

investigating” the jailer’s background, it would have required “an enormous

leap to connect ‘improper advances’ towards female students to the sexual

assault.” Id. at 596. Consequently, there were “no grounds to find that the

alleged rape in question was a ‘plainly obvious consequence’ of hiring him.” Id.

It does not require an enormous leap to connect an applicant’s prior

arrests for sex crimes with at least some risk—though perhaps not a plainly

obvious one—that the applicant might sexually assault detainees at a jail.

“[W]hen the State takes a person into its custody and holds him there against

his will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.” DeShaney v. Winnebago

Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989). Indeed, detainees in

jails and prisons are “restricted in their ability to fend for themselves” and are

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therefore far more vulnerable than the general population. See Hare v. City of

Corinth, 74 F.3d 633, 639 (5th Cir. 1996). As illustrated by the instant case,

officers in detention facilities are often able to exercise almost complete control

over detainees, which creates real risks that officers will sexually assault the

people in their care. These risks have received substantial and deserved

attention and should, by now, be well-known to corrections officials.

Accordingly, when hiring officers for detention facilities, officials must be

careful to thoroughly examine applicants’ backgrounds and diligently inquire

about the conduct underlying any prior offenses. The Department of Justice’s

“Standards to Prevent, Detect, and Respond to Prison Rape,” promulgated

pursuant to the Prison Rape Elimination Act (“PREA”), describe detailed best

practices for vetting applicants’ backgrounds before they are hired by detention

facilities. See 28 C.F.R. § 115.17 (2012).

Nevertheless, under the specific circumstances of this case, the

connection between Fierros’s prior arrests and the injury to Rivera is not

strong enough to show that Appellees were deliberately indifferent in hiring

him. Much like the officer in Brown, Fierros’s prior arrests for indecency with

a child by sexual contact “may well have made him an extremely poor

candidate” for a position as jailer. See 520 U.S. at 414. But Fierros’s juvenile

record provided no detail regarding the alleged offenses, and there was no

evidence that Fierros was ever charged or convicted. At the time of Fierros’s

arrests, the Texas crime of indecency with a child broadly prohibited all “sexual

contact” with “a child younger than 17 years.” Tex. Penal Code § 21.11(a)

(2001). 1 Fierros was fifteen years old at that point, and it is entirely possible

1 It was an “affirmative defense to prosecution” that the defendant (1) “was not more

than three years older than the victim and of the opposite sex;” (2) “did not use duress, force,

or a threat against the victim at the time of the offense;” and (3) “was not required . . . to

register for life as a sex offender” and did not have “a reportable conviction or adjudication”

for a Texas sexual offense. Tex. Penal Code § 21.11(b).

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that he was arrested simply for engaging in uncoerced sexual activity with

another minor who was under the age of consent—acts that would not

necessarily evince an obvious risk that Fierros would engage in future sexual

violence. Moreover, Bonner testified that he made some attempt, albeit a

limited one, to investigate Fierros’s prior arrests and was unable to gather any

additional information regarding the incidents. Rivera has not supplied

evidence to contradict these assertions.

Because the information available to Appellees was vague and

inconclusive, a jury could not find that a plainly obvious consequence of hiring

Fierros was that he would sexually assault a detainee. We hold that Rivera

has failed to allege facts sufficient to show that Appellees were deliberately

indifferent to known or obvious risks associated with hiring Fierros. Therefore,

the district court did not err in holding that Appellees were entitled to qualified

immunity on this claim.

B. Inadequate Training and Supervision

Rivera also argues that Appellees inadequately trained and supervised

jail employees, which constituted deliberate indifference and resulted in the

sexual assault. “For an official to act with deliberate indifference, the

[supervisor] 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.” Estate of Davis ex rel. McCully v. City of North Richland Hills,

406 F.3d 375, 381 (5th Cir. 2005) (quoting Smith v. Brenoettsy, 158 F.3d 908,

912 (5th Cir. 1998)). The Supreme Court has explained that supervisors’

“continued adherence to an approach that they know or should know has failed

to prevent tortious conduct by employees may establish the conscious disregard

for the consequences of their action—the ‘deliberate indifference’—necessary

to trigger . . . liability.” Brown, 520 U.S. at 407.

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According to Rivera, even though a prior incident of sexual abuse

occurred in July 2014, Appellees took little action to train and educate jailers

regarding sexual misconduct and failed to implement “proper protocols to

guard against sexual exploitation.” Rivera also contends that Appellees

“continued to allow female detainees to be taken by male jailers into the

multipurpose room, which they knew was a blind zone, unmonitored by jail

surveillance cameras, and did nothing to restrict access to this room, or to

install security cameras to deter sexual abuse there.”

Appellees respond that all jailers, including Fierros, were required to be

licensed by the state and that the state licensing process included training on

sexual contact and proper interaction with inmates. Appellees also contend

that they provided training to jail employees that addressed sexual

misconduct, a sign was posted reminding jailers that “sex with inmates” was

prohibited, and Fierros signed a document when he was hired stating that he

understood there was to be no sexual contact with detainees. In addition,

Appellees point out that the multipurpose room was used by attorneys,

chaplains, and mental health workers for private consultations with detainees.

Appellees claim that they decided not to install cameras in that room out of

“concern for privacy.” Finally, Appellees highlight that the first incident of

sexual misconduct occurred in an area of the jail monitored by cameras and

was in fact discovered when another officer reported the conduct after

observing the incident on the video surveillance system. As a result, Appellees

argue that this prior incident would not have served as notice that the jail’s

existing system of video monitoring amounted to inadequate supervision.

Other circuits have held that officials can be found deliberately

indifferent if they fail to modify training and policies after sexual assault

occurs in their facilities. Cash v. County of Erie, 654 F.3d 324, 336–39 (2d Cir.

2011); Tafoya v. Salazar, 516 F.3d 912, 914–20 (10th Cir. 2008). In Cash, a

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pretrial detainee was sexually assaulted by a sheriff’s deputy at a detention

facility. 654 F.3d at 327. A few years earlier, a deputy at the same facility had

engaged in sexual acts with another pretrial detainee. Id. at 329. In response

to the prior incident, the facility’s superintendent merely “issued a one-page

memorandum entitled ‘Sexual Conduct,’ reminding facility personnel of [the

facility’s] ‘no-contact’ policy.” Id. at 330. The Second Circuit noted that “a

reasonable jury could have concluded that the [prior sexual assault] complaint

would have alerted [the sheriff] to the fact that mere proscriptions on sexual

contact between guards and prisoners had proved an insufficient deterrent to

sexual exploitation.” Id. at 336. Therefore, the court held that the jury could

find that the county and its sheriff were deliberately indifferent to their

“affirmative duty to protect prisoners from sexual exploitation.” Id. at 339.

Likewise, a few months before Rivera was sexually assaulted, another

senior jailer sexually abused a female detainee at the Hale County Jail. This

event should have alerted Appellees that a substantial risk of serious harm

existed in their facility and that they needed to do more to protect detainees

from sexual exploitation. Yet the record suggests that Appellees did not make

any modifications to their training, policies, or supervision. Instead, Appellees

merely reminded jailers that they should not sexually exploit detainees and

posted a sign indicating that “sex with inmates” was prohibited. A jury could

conclude that these reminders did not constitute an adequate response to the

serious incident of sexual abuse that had recently transpired in the jail. See id.

at 330, 336. 2

2 Rivera’s expert argued that Appellees would have been wise to implement additional

training and policies consistent with the PREA in response to the July 2014 incident. We

agree that the PREA may have been a helpful guide to Appellees in revising their training

and procedures, but we note that Appellees were not constitutionally obligated to conform

their training and policies to the PREA. We agree with the Second Circuit in Cash that

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Nonetheless, we must determine whether the constitutional right at

issue was clearly established at the time of Appellees’ alleged misconduct. In

doing so, we look to “cases of controlling authority in [this] jurisdiction at the

time of the incident which clearly established the rule” or “a consensus of cases

of persuasive authority such that a reasonable [official] could not have believed

that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999).

It has long been clearly established that detainees like Rivera have the

right to be protected from sexual abuse, both at the hands of correctional

officers and fellow inmates, and that jail officials violate inmates’

constitutional rights “by showing ‘deliberate indifference’ to a substantial risk”

of sexual abuse “when the official[s] ‘know[] of and disregard[] an excessive

risk” of that harm occurring. Doe v. Robertson, 751 F.3d 383, 388 (5th Cir. 2014)

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). By now, the substantial

risk of sexual assault in jails and prisons is well-documented and obvious. See,

e.g., 42 U.S.C. § 15601 (congressional finding in the PREA that “experts have

conservatively estimated that at least 13 percent of the inmates in the United

States have been sexually assaulted in prison”). Jail administrators are not

permitted to “bury their heads in the sand” and ignore these obvious risks to

the inmate populations they have an affirmative duty to protect. Walton v.

Dawson, 752 F.3d 1109, 1119 (8th Cir. 2014).

Accordingly, this Court has previously held that jail officials who provide

“no training” on sexual abuse and leave their employees “virtually

unsupervised” are deliberately indifferent to the substantial risk that jailers

might abuse detainees. See Drake v. City of Haltom City, 106 F. App’x 897, 900

(5th Cir. 2004) (per curiam). Still, in the case at bar, Rivera concedes that

Appellees had discretion to determine what specific reforms were appropriate so long as they

took significant action to better safeguard the safety of detainees.

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officers at the jail received at least some state-sanctioned training aimed at

sexual assault prevention. She also agrees that Appellees took some limited

responsive action following the prior incident of sexual abuse. In other words,

we are not faced with a case in which jail officials took no preventive measures

to address the risk of sexual assault. And unfortunately, when Rivera was

sexually assaulted, our case law did not provide much clarity on the scope of

jail officials’ obligations with respect to protecting detainees from sexual abuse.

Indeed, Rivera has not identified any controlling Fifth Circuit authority

establishing the constitutional inadequacy of Appellees’ response to the risk of

sexual assault in their jail.

On the contrary, one Fifth Circuit case may have led reasonable officials

in Appellees’ position to believe that their minimal response did not run afoul

of the Constitution. See Robertson, 751 F.3d at 391–93. In Robertson, we held

that federal officials did not violate clearly established law in failing to prevent

a subcontractor’s employee from sexually assaulting detainees while

transporting them out of an immigrant detention center. Id. Although one of

the subcontractor’s employees had previously sexually assaulted a detainee in

her cell, we noted that the previous incident “did not stem from any persistent

risk related to detainee transport” and thus did not warn the federal officials

that they needed to make changes to their transportation practices. Id. at 391–

92. Robertson is distinguishable from the instant case. Here, the July 2014

sexual abuse occurred in the same facility where Fierros later sexually

assaulted Rivera, and a jury could certainly find that this prior incident placed

Appellees on notice that they needed to do more to protect detainees in the

jail. 3 Nevertheless, in light of Robertson’s holding that federal officials did not

3 Robertson also distinguished Cash, explaining: “Cash held that despite a rule (and

laws) prohibiting any sexual contact between inmates and jail staff, a jury could have

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need to adjust their transportation policies after a previous sexual assault

occurred in their facility, reasonable officials in Appellees’ position could have

concluded that their limited response to the prior incident of sexual abuse did

not violate the Constitution.

Furthermore, at the time of the sexual assault in this case, there was not

a consensus of persuasive authority such that reasonable officials in Appellees’

position would have known their actions were unlawful. Cash appears to be

the only case that is closely analogous to the present one. See 654 F.3d at 330,

336. Especially in light of Robertson, a single case from one of our fellow circuits

did not provide sufficient notice to Appellees that their actions were

inadequate. In addition, Tafoya bears some similarities to the case at hand,

but the facts in that case were far more extreme and egregious than those we

consider today. See 516 F.3d at 914–20. There, the Tenth Circuit held that a

county sheriff could be liable for a detention officer’s sexual assault of an

inmate because two other inmates had previously been sexually assaulted at

the same jail and, in response to those prior incidents, the sheriff “made only

minimal efforts to address the [facility’s] glaring safety problems.” Id. at 918–

21. In contrast to the present case, however, Tafoya involved a jail with an

“undisciplined culture of ‘anything-goes’” and “pervasive delinquency” by staff.

Id. at 919. Officers at the jail frequently violated the facility’s “no-contact”

policy, watched pornographic movies in the control room during their shifts,

and commented on which inmates they would like to have sex with. Id.

Reasonable officials in Appellees’ position might well have concluded that the

facts of Tafoya were distinguishable from the situation at the Hale County Jail.

concluded that, based on evidence of a prior rule violation, the county was deliberately

indifferent in failing to do more to prevent assaults.” 751 F.3d at 391 n.10.

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As a result, we conclude that it was not clearly established at the time of

the alleged misconduct that Appellees needed to make significant changes to

their training, supervision, and policies in response to the July 2014 incident

of sexual abuse. We hold that the district court did not err in concluding that

the defendants were entitled to qualified immunity with respect to Rivera’s

inadequate training and supervision claims.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment and its dismissal of Rivera’s claims against Appellees.

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