Samantha Vazquez v. County of Kern

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMANTHA VAZQUEZ, Nos. 18-15060

Plaintiff-Appellant, 18-15671

v. D.C. No.

1:16-cv-01469-JLT

COUNTY OF KERN; HEATHE

APPLETON; GEORGE ANDERSON,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of California

Jennifer L. Thurston, Magistrate Judge, Presiding

Argued and Submitted July 16, 2019

San Francisco, California

Filed January 31, 2020

Before: Richard A. Paez and Johnnie B. Rawlinson,

Circuit Judges, and Paul C. Huck, * District Judge.

Opinion by Judge Paez

*

The Honorable Paul C. Huck, United States District Judge for the

U.S. District Court for Southern Florida, sitting by designation.

2 VAZQUEZ V. COUNTY OF KERN

SUMMARY **

Prisoner Civil Rights

The panel reversed the district court’s summary

judgment in favor of defendants in an action brought

pursuant to 42 U.S.C. § 1983 alleging that a Juvenile

Corrections Officer violated plaintiff’s constitutional rights

when he made sexual comments to her, groomed her for

sexual abuse, and looked at her inappropriately while she

was showering.

The panel held that, viewing the facts in the light most

favorable to plaintiff and drawing all reasonable inferences

in her favor, she had presented sufficient facts to establish a

violation of her right to bodily privacy, right to bodily

integrity, and right to be free from punishment as guaranteed

by the Fourteenth Amendment. Thus, the panel held that

the Corrections Officer violated plaintiff’s right to privacy

under the Fourteenth Amendment when he allegedly

watched her shower multiple times. Additionally, a jury

could find that the Officer’s alleged conduct, which included

touching plaintiff’s face and shoulders without her consent,

talking about her appearance in her shower gown, and telling

her about a sexual dream, violated plaintiff’s Fourteenth

Amendment right to bodily integrity. Finally, the panel held

that plaintiff asserted facts from which a jury could find that

the Officer violated plaintiff’s right to be free from

punishment because she alleged that the Officer’s conduct

caused her harm outside of the inherent discomforts of

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

VAZQUEZ V. COUNTY OF KERN 3

confinement and did not serve a legitimate governmental

objective. The panel held that the Officer was not entitled to

qualified immunity.

The panel held that a jury could find that the Officer’s

supervisor knew or reasonably should have known of the

violations and failed to act to prevent them. Thus, viewing

the evidence in the light most favorable to plaintiff and

making all justifiable inferences in her favor, the panel held

that the district court erred when it concluded there was no

evidence supporting a causal link between the supervisor’s

conduct and the Officer’s alleged violation of plaintiff’s

constitutional rights.

In addition to reversing the summary judgment in favor

of the individual defendants, the panel also vacated the

district court’s judgment for Kern County and the district

court’s order awarding costs.

COUNSEL

Thomas C. Seabaugh (argued), The Law Office of Thomas

C. Seabaugh, Los Angeles, California; Paul Hoffman,

Schonbrun Desimone Seplow Harris & Hoffman LLP,

Hermosa Beach, California; David K. Cohn, Chain Cohn

Stiles, Bakersfield, California; for Plaintiff-Appellant.

Kathleen Sarah Rivera (argued), Deputy County Counsel;

Mark L. Nations, County Counsel; Office of the Kern

County Counsel, Bakersfield, California; for Defendants-

Appellees County of Kern and Heathe Appleton.

4 VAZQUEZ V. COUNTY OF KERN

James D. Weakley (argued) and Ashley N. Torres, Weakley

and Arendt PC, Fresno, California; for Defendant-Appellee

George Anderson.

Ian M. Kysel (argued) and Amanda Goad, ACLU

Foundation of Southern California, Santa Ana, California,

for Amicus Curiae ACLU of Southern California.

OPINION

PAEZ, Circuit Judge:

In January 2015, Samantha Vazquez was arrested on an

outstanding warrant and taken to Kern County Juvenile Hall.

Vazquez argues that while in custody at the hall, a Juvenile

Corrections Officer, George Anderson, made sexual

comments to her, groomed her for sexual abuse, and looked

at her inappropriately while she was showering.

Vazquez filed this action against Anderson, his

supervisor, Heathe Appleton, and the County of Kern (“Kern

County”). She brought claims under 42 U.S.C. § 1983,

alleging that Anderson’s conduct violated her constitutional

rights. She also alleged claims against Kern County and

Appleton for municipal and supervisory liability. The

district court ultimately granted Anderson’s and Appleton’s

motions for summary judgment. 1 We have jurisdiction

under 28 U.S.C. § 1291, and we reverse and remand.

1

After issuing the orders granting the motions for summary

judgment filed by Anderson and Appleton, the district court issued an

order to show cause whether Vazquez could maintain this action against

Kern County considering the summary judgment rulings. Vazquez

VAZQUEZ V. COUNTY OF KERN 5

BACKGROUND

Vazquez entered Kern County Juvenile Hall in January

2015. She was housed in Unit 300A, an all-female unit,

where Anderson worked. Juvenile hall staff frequently

placed wards on work “details,” including laundry, kitchen,

and clean-up.

Vazquez contends that Anderson purposefully selected

her to work “details” with him. During her deposition,

Vazquez testified that Anderson said inappropriate things to

her such as calling her “babe” and telling her she had a “big

butt” in the juvenile hall pants. Vazquez also testified that

Anderson “grabbed [her] face,” “touched [her] shoulders,”

and talked with her about her shower gown.

In her testimony, Vazquez described one specific

incident where she was working a “detail” with Anderson

and he told her about a dream he had about her that was

“rated R.” She testified that he told her to shut the door and

then told her the details of the dream including that, in the

dream, she “grabbed him by his t-shirt,” “gave him a kiss”

and “after that [they] ended up going to a room and, like,

having fun and stuff.” After that, she testified that he told

her “to get close to him, like, to the point where he had

opened his knees and [she] was right in the middle of him,

and [he] told [her] that he wanted his dream to come true.”

Vazquez testified that she moved away from him after and

felt “really really awkward.”

responded and while preserving her right to appeal, agreed that the action

could not be maintained against Kern County in light of the district

court’s rulings. The district court then dismissed the action against Kern

County and entered judgment in favor of all defendants.

6 VAZQUEZ V. COUNTY OF KERN

Vazquez also alleged that Anderson would tell her which

shower stalls to use and that he looked at her inappropriately

while she was showering on three or four occasions. She

testified that she caught him staring at her in the shower

when he was standing at the staff counter and that she tried

to cover herself up. 2 She also testified that Anderson told

her he had seen her in the shower, and that she should leave

her boyfriend and “find someone better like him.”

Vazquez first reported her allegations to substance abuse

specialist Francisco Maldonado. Maldonado testified that

when Vazquez made the allegations he felt she was being

truthful. Maldonado reported the allegations and Kern

County opened an investigation into Vazquez’s complaints

that same day.

The investigation was led by Shaun Romans and lasted

approximately eight months. Romans interviewed fifty-five

people and reviewed three interviews conducted by the

Bakersfield Police Department. When questioned about the

allegations against Anderson, Romans testified that in his

investigative opinion, he “leaned toward them being true,

toward the belief that it was more likely than not that they

were true.” The allegations were also sustained by the

disciplinary review board at the probation department. Kern

County then began the process of terminating Anderson’s

employment.

Anderson testified that he selected Vazquez to work with

him once or twice and that “maybe once” they had been

alone in a room together for twenty minutes. He testified

2

The record reflects that a person sitting at the staff counter in Unit

300A could look into at least one of the shower stalls through a gap in

the shower curtains.

VAZQUEZ V. COUNTY OF KERN 7

that he selected Vazquez because she was a gang member

who supplied him with useful gang intelligence and because

she was a good worker. He contended that Vazquez told him

about her boyfriend, who was a gang member, and told him

that she had hidden some of her boyfriend’s guns at her

house. Anderson also testified that he remained at the staff

counter while Vazquez showered on one or two occasions,

but that he was never told that he could not sit at the staff

counter while female wards showered.

Several staff members testified that they observed

Anderson alone with female wards, including Vazquez.

Another staff member testified that she observed Anderson

sitting at the staff counter while female wards showered.

Shay Molennor, Director of Kern County Juvenile Hall,

testified that at the time of Vazquez’s allegations, Kern

County had policies in place at the juvenile hall to prevent

or deter sexual abuse of wards. She further testified that

certain standards in place at the time implemented the Prison

Rape Elimination Act (PREA). See 34 U.S.C. §§ 30301–

30309 (2017); 28 C.F.R. §§ 115.11–115.16.

Moreover, Molennor testified that Section 1425 of the

Juvenile Hall Basic Staff Rules, which were in effect at the

time of the allegations, stated: “Staff members are not

permitted alone in the rooms with minors of the opposite

gender except during an emergency. For security purposes,

staff should avoid being alone with any minor in their room.”

She testified that the Juvenile Hall Administrative Manual

required supervision of the showers to be provided by staff

of the same gender as the youth and that “except in exigent

circumstances or incidental to a routine youth safety check

the youth will be permitted to shower, perform bodily

functions, and change clothing without nonmedical staff of

8 VAZQUEZ V. COUNTY OF KERN

the opposite gender viewing their breasts, buttocks, or

genitalia.”

STANDARD OR REVIEW

We review de novo a district court’s “grant of summary

judgment.” Branch Banking & Tr. Co. v. D.M.S.I., LLC,

871 F.3d 751, 759 (9th Cir. 2017). “We must determine,

viewing the evidence in the light most favorable to the

nonmoving party and drawing all justifiable inferences in its

favor, whether there are any genuine issues of material fact

and whether the moving party is entitled to judgment as a

matter of law.” Orr v. Bank of Am., NT & SA, 285 F.3d 764,

772 (9th Cir. 2002).

We review de novo a district court’s decision on

qualified immunity. Entler v. Gregoire, 872 F.3d 1031,

1038 (9th Cir. 2017). We review for abuse of discretion a

district court’s award of costs. Draper v. Rosario, 836 F.3d

1072, 1087 (9th Cir. 2016).

DISCUSSION

On appeal, Vazquez challenges the district court’s orders

granting Anderson’s motion for summary judgment,

Appleton’s motion for summary judgment on Vazquez’s

supervisory liability claim, and the district court order

awarding costs.

I. Anderson’s Motion for Summary Judgment

The district court granted Anderson’s motion for

summary judgment of Vazquez’s claims to the extent they

were based on sexual abuse or a violation of Vazquez’s right

to privacy. First, Anderson argued that even if Vazquez’s

sexual abuse allegations were true, his alleged conduct did

VAZQUEZ V. COUNTY OF KERN 9

not violate her constitutional rights. The district court

agreed, concluding that it could not find “harm of

constitutional proportions” regarding the sexual abuse claim.

Second, regarding the privacy claim, the district court

acknowledged there was a “dispute regarding whether—and

to what extent—Anderson watched [Vazquez] in the

shower.” Taking the facts in the light most favorable to

Vazquez, the district court concluded that Anderson’s

alleged conduct was not sufficiently frequent to violate

Vazquez’s right to privacy. Finally, the district court

proceeded to conclude that even assuming Anderson’s

conduct rose to the level of a constitutional violation, he was

entitled to qualified immunity.

We disagree. We hold that, viewing the facts in the light

most favorable to Vazquez and drawing all reasonable

inferences in her favor, she has presented sufficient facts to

establish a violation of her right to bodily privacy, right to

bodily integrity, and right to be free from punishment as

guaranteed by the Fourteenth Amendment. We also hold

that Anderson is not entitled to qualified immunity.

A. Fourteenth Amendment Right to Bodily Privacy

“The right to bodily privacy [under the Fourteenth

Amendment] was established in this circuit in 1963.”

Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th Cir.

1992) (citing York v. Story, 324 F.2d 450 (9th Cir. 1963)). 3

3

In York, the female plaintiff alleged that after she went to the police

department to report an assault, a male officer took and later distributed

photographs of her in nude positions that did not depict her injuries and

were not made for any lawful or legitimate purpose. 234 F.2d at 452.

We “relied upon the [F]ourteenth Amendment as the source of the

woman’s protection, reasoning that the security of one’s privacy against

10 VAZQUEZ V. COUNTY OF KERN

We extended “this right to prison inmates in 1985,” id.

(citation omitted), and we have held that a pretrial detainee

has “at least the same right to bodily privacy as a prisoner,”

Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923

(9th Cir. 2017).

In Grummett, we considered a class action asserting that

a “policy and practice of allowing female correctional

officers to view male inmates in states of partial or total

nudity while dressing, showering, being stripped searched,

or using toilet facilities violated [the inmates’] rights of

privacy guaranteed by the United States Constitution.”

779 F.2d at 492. In our analysis, we noted that female

guards were “not assigned to positions requiring unrestricted

and frequent surveillance”; female guards routinely walked

past cells, but did not stop for prolonged inspection; female

guards did not accompany male inmates to the showers; and

“females [were] assigned to the more distant gunrail

position, overlooking showers, where . . . the surveillance

[was] obscured.” Id. at 494–95. From these circumstances,

we concluded that “the inmates have not demonstrated that

these restricted observations by members of the opposite sex

are so degrading as to require intervention by this court.” Id.

at 494.

arbitrary intrusion by the police is basic to a free society and therefore

‘implicit in the concept of ordered liberty’ under the due process clause.”

Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985) (quoting York,

234 F.2d at 455). “We held that the plaintiff had stated a privacy claim

under the [F]ourteenth [A]mendment because we could not conceive of

a more basic subject of privacy than the naked body. Id. (citation

omitted). We noted that “[t]he desire to shield one’s unclothed figure

from [the] view of strangers, and particularly strangers of the opposite

sex, is impelled by elementary self-respect and personal dignity.” Id.

(internal quotation marks and citation omitted).

VAZQUEZ V. COUNTY OF KERN 11

Similarly, in Sepulveda, we considered the claim of a

female parolee who alleged that a male officer entered the

restroom while she was providing a urine sample for drug

tests. 967 F.2d at 1415. The female parolee objected to his

presence and asked him to leave, but the male officer

laughed at her and remained in the restroom. Id. We

affirmed the district court’s order that the officer was not

entitled to summary judgment on the basis of qualified

immunity, concluding that the plaintiff’s “experience was far

more degrading . . . than the situation faced by the inmates

in Grummett.” Id. at 1415–16. We pointed out that, unlike

in Grummett, the defendant’s view of the parolee was

“neither obscured nor distant.” Id.

Here, Vazquez contends that Anderson violated her right

to privacy under the Fourteenth Amendment when he

allegedly watched her shower multiple times and on one

occasion looked into her room when her privacy sign was

up. 4 First, Anderson concedes that “[t]he right to not be

viewed naked by members of the opposite sex is protected

under the Constitution,” but contends that “there is a

compelling state interest for the safety and security of the

juvenile detention facility for the guards to be present (in a

separate room and behind a computer desk during the wards’

shower time.)” 5

Anderson’s argument that there is a compelling state

interest for his alleged actions is not persuasive as there is

4

Indeed, Vazquez testified that Anderson told her he had seen her

in the shower.

5

“[W]hen a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see also

Byrd, 845 F.3d at 923.

12 VAZQUEZ V. COUNTY OF KERN

evidence in the record that his actions, at least with respect

to the shower allegations, were against institution policy.

See Byrd, 845 F.3d at 924 (noting that the fact that the

challenged observation violated the prison’s policy

“suggests that there may be no ‘valid rational connection’

between the observation and a legitimate prison interest”).

For example, another corrections officer testified that she

was trained that male staff should not be in the unit while

females are showering and that if she had observed

Anderson at the staff counter while female wards were

showering she would have reported it. A substance abuse

counselor also testified that if he had observed a male staff

member sitting at the staff counter while female wards were

showering he would have reported it. And the director of the

juvenile hall testified that the Juvenile Hall Administrative

Manual required supervision of the showers to be provided

by staff of the same gender as the youth, and that “except in

exigent circumstances or incidental to a routine youth safety

check the youth will be permitted to shower . . . without

nonmedical staff of the opposite gender viewing their

breasts, buttocks, or genitalia.”

Second, Anderson argues that his alleged conduct, even

if true, did not violate Vazquez’s right to privacy because his

view into the showers was infrequent, from a distance, and

did not involve an inappropriate amount of contact. Yet

viewing the evidence in the light most favorable to Vazquez,

even if Anderson observed her from a distance, the question

of whether his observation was “infrequent and casual”

remains in dispute. Moreover, there is evidence that

Anderson directed Vazquez to use a certain shower stall so

he could obtain the best view.

Given the evidence that there was no rational connection

between Anderson’s conduct and a legitimate prison interest

VAZQUEZ V. COUNTY OF KERN 13

and the evidence that Anderson’s view was not necessarily

“obscured and from a distance,” we disagree with the district

court that Anderson’s alleged viewings were not sufficiently

frequent to violate Vazquez’s right to privacy under the

Fourteenth Amendment. See Byrd, 845 F.3d at 922, 924

(concluding allegations that female prison guards regularly

viewed a male pretrial detainee’s bathroom and shower use

violated his Fourteenth Amendment right to bodily privacy

could not be dismissed without an answer). Viewing the

evidence in the light most favorable to Vazquez, we hold that

a reasonable jury could conclude that Anderson violated

Vazquez’s Fourteenth Amendment right to bodily privacy.

B. Fourteenth Amendment Right To Bodily

Integrity

“Most cases that involve unwanted sexual contact or

harassment by public officials have been analyzed under the

substantive due process right to be free from violations of

bodily integrity under the Fourteenth Amendment.”

Fontana v. Haskin, 262 F.3d 871, 881–82 n.6. (9th Cir.

2001). 6 “Under the Fourteenth Amendment’s substantive

due process prong, we use the ‘shocks the conscience’ test.”

Id. at 882 n.7 (citing Cty. of Sacramento v. Lewis, 523 U.S.

833, 846 (1998)). “The threshold question is ‘whether the

behavior of the governmental officer is so egregious, so

outrageous, that it may fairly be said to shock the

contemporary conscience.’” Id. (quoting Sacramento,

523 U.S. at 848 n. 8).

6

Cases involving unwanted sexual contact or harassment by public

officials during an arrest or custodial situation are evaluated under the

Fourth Amendment. Fontana, 262 F.3d at 881–82 n.6. As Vazquez did

not raise any Fourth Amendment arguments in her appellate briefing, we

only address the Fourteenth Amendment.

14 VAZQUEZ V. COUNTY OF KERN

Vazquez asserts that Anderson selected her for isolated

work details so that he could groom her for sex. She alleges

that Anderson referred to her as “babe,” told her she had a

“big butt,” touched her face and shoulders without her

consent, talked to her about her appearance in her shower

gown, told her he had seen her in the shower, and told her

that she should leave her boyfriend and “find someone better

like him.” Moreover, she testified that during a work detail,

Anderson told her to close the door and proceeded to tell her

about a sexual dream he had about her. Vazquez testified

that Anderson then told her “to get close to him . . . to the

point where he had opened his knees and [she] was right in

the middle of him, and he told [her] that he wanted his dream

to come true.”

As he did before the district court, Anderson continues

to argue that even assuming Vazquez’s version of events is

true, his alleged conduct was too insignificant to constitute a

violation of Vazquez’s Fourteenth Amendment right to

bodily integrity. Thus, we must consider whether

Anderson’s alleged conduct, if true, would violate

Vazquez’s Fourteenth Amendment right to bodily integrity.

In Fontana, we considered whether similar conduct was

sufficient to allege a section 1983 claim. 7 262 F.3d at 875–

76. There, the plaintiff was arrested for drunk driving,

handcuffed, and placed in the back of a police vehicle as she

was driven to jail. Id. at 875. The plaintiff alleged a police

officer sexually harassed her during the drive to the station.

7

We analyzed Fontana under the Fourth Amendment because it

involved an arrest but noted that if it had not involved an arrest, we would

have analyzed the case under the Fourteenth Amendment. Fontana,

262 F.3d at 881–82 n.6. We ultimately said that even if we were to apply

the Fourteenth Amendment analysis, using the “shocks the conscience”

test, we would have reached the same result. Id. at 882 n.7.

VAZQUEZ V. COUNTY OF KERN 15

Id. She alleged that an officer sat in the back seat next to her

where he told her she had nice legs, put his arm around her,

massaged her shoulders, told her he could be her “older

man,” and made other sexual comments. Id. The defendant

officer argued that his alleged behavior did not violate any

of the plaintiff’s constitutional rights as a matter of law. Id.

at 878. We disagreed, concluding that the allegations, if true,

were “an abuse of power” and violations of the plaintiff’s

bodily integrity. Id. at 881. Significantly, in our analysis,

we also took note of the context of the allegations. See id.

at 880–81 (noting the plaintiff alleged she was “helpless,

handcuffed, and frightened and, thus, in a vulnerable

position when [the defendant] began to prey upon her”

because “[s]he had just been in a disorienting, high speed car

accident at two o’clock in the morning”).

Here, Vazquez’s assertions are sufficiently similar to

those in Fontana for us to conclude that a reasonable jury

could find that Anderson’s alleged conduct violated

Vazquez’s Fourteenth Amendment right to bodily integrity.

Moreover, the context of Vazquez’s allegations demonstrate

that she was at least as vulnerable as the Fontana plaintiff.

At the time of the alleged events, Vazquez was a female

ward at juvenile hall, whereas Anderson was 45 years old,

was larger than Vazquez, wore a uniform, and had the power

to discipline her if she refused to follow his instructions.

Thus, a jury could find that Anderson’s alleged conduct “was

egregious and outrageous and shocks the conscience as a

matter of law.” Fontana, 262 F.3d at 882 n.7.

C. Fourteenth Amendment Right to be Free From

Punishment

“The status of the detainees determines the appropriate

standard for evaluating conditions of confinement.” Gary H.

v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). “Due

16 VAZQUEZ V. COUNTY OF KERN

process requires that a pretrial detainee not be punished. A

sentenced inmate, on the other hand, may be punished,

although that punishment may not be ‘cruel and unusual’

under the Eighth Amendment.” Bell v. Wolfish, 441 U.S.

520, 537 n.16 (1979).

“For a particular governmental action to constitute

punishment, (1) that action must cause the detainee to suffer

some harm or ‘disability,’ and (2) the purpose of the

governmental action must be to punish the detainee.”

Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004)

(citing Bell, 441 U.S. at 538). “[T]o constitute punishment,

the harm or disability caused by the government’s action

must either significantly exceed, or be independent of, the

inherent discomforts of confinement.” Id. at 1030 (citation

omitted). Once harm is established, the court considers

“whether this harm is imposed ‘for the purpose of

punishment or whether it is but an incident of some other

legitimate governmental purpose.’” Id. (quoting Bell,

441 U.S. at 538).

Here, we evaluate Vazquez’s right to be free from

punishment under the Fourteenth Amendment. See Gary H.,

831 F.2d at 1432 (concluding that the district court correctly

evaluated the conditions of confinement at a facility for

adolescent wards of the juvenile court under the Fourteenth

Amendment due process clause rather than the Eighth

Amendment). 8 The district court acknowledged that

Vazquez’s claim stems from the Fourteenth Amendment,

8

In an amicus brief filed in support of Vazquez, the American Civil

Liberties Union of Southern California (“the ACLU”) argues that we

should evaluate Vazquez’s claims under an even more protective

standard than the Constitution provides to adult pretrial detainees. We

do not address this argument because Vazquez can prevail under our

existing Fourteenth Amendment standards.

VAZQUEZ V. COUNTY OF KERN 17

rather than the Eighth Amendment, but erred in its

conclusion that it should evaluate the Fourteenth

Amendment claim under “the same standards” as an Eighth

Amendment claim. Rather, the Fourteenth Amendment is

more protective than the Eighth Amendment “because the

Fourteenth Amendment prohibits all punishment of pretrial

detainees, while the Eighth Amendment only prevents the

imposition of cruel and unusual punishment of convicted

prisoners.” Demery, 378 F.3d at 1029 (citing Bell, 441 U.S.

at 535 n.16) (emphasis added).

In Byrd, we considered, among other issues, whether

allegations that female guards observed a pretrial detainee in

the bathroom and shower violated his Fourteenth

Amendment right to be free from cruel and unusual

punishment. 845 F.3d at 921–22, 924. There, the district

court sua sponte dismissed the complaint under 28 U.S.C.

§ 1915A after concluding that the policy of allowing cross-

gender supervision had long been held constitutional in the

Ninth Circuit. Id. at 922. Because no evidence had yet been

presented to support potential goals behind the observation

policy and because the prison’s strip search policy

potentially banned this type of observation, we concluded

that the allegations were sufficient to proceed past the

screening stage. Id. at 924.

Here, Vazquez has asserted facts from which a jury could

find that Anderson violated her right to be free from

punishment. First, Vazquez alleged that Anderson’s conduct

caused her harm outside of the inherent discomforts of

confinement. Second, Anderson’s alleged conduct did not

serve a legitimate governmental objective. As discussed

above, there is evidence that Anderson’s alleged viewing of

Vazquez in the shower served no legitimate purpose as such

observations were against institution policy. See Byrd,

18 VAZQUEZ V. COUNTY OF KERN

845 F.3d at 924. Anderson’s other alleged conduct—

including selecting Vazquez for work details so they could

be alone together; calling Vazquez “babe”; telling her she

had a “big butt”; touching her face and shoulders;

commenting on her shower gown; telling her that he had

seen her in the shower and that she should leave her

boyfriend to find someone like him; directing her to use

certain showers; telling her about a sexual dream he had

about her and that he wanted the dream to come true; and

directing her “to get close to him . . . to the point where he

had opened his knees and [she] was right in the middle of

him”—serves no legitimate purpose. In light of this record

evidence, we hold that a jury could find that Anderson

violated Vazquez’s Fourteenth Amendment right to be free

from punishment.

D. Qualified Immunity

“Qualified immunity attaches when an official’s conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (internal quotation marks and citation omitted). “A

clearly established right is one that is sufficiently clear that

every reasonable official would have understood that what

he is doing violates that right.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (internal quotation marks and citation

omitted). “[T]he clearly established right must be defined

with specificity.” City of Escondido, Cal. v. Emmons, 139 S.

Ct. 500, 503 (2019). However, “there can be the rare

‘obvious case,’ where the unlawfulness of the officer’s

conduct is sufficiently clear even though existing precedent

does not address similar circumstances.” D.C. v. Wesby,

138 S. Ct. 577, 590 (2018). Thus, “[w]hen a violation is

obvious enough to override the necessity of a specific factual

VAZQUEZ V. COUNTY OF KERN 19

analogue, . . . it is almost always wrong for an officer in

those circumstances to act as he did.” Sharp v. Cty. of

Orange, 871 F.3d 901, 912 (9th Cir. 2017). Training

materials and regulations are also relevant, although not

dispositive, to determining whether reasonable officers

would have been on notice that their conduct was

unreasonable. Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003); see also

Hope v. Pelzer, 536 U.S. 730, 741–42 (2002) (considering

an Alabama Department of Corrections regulation and a

Department of Justice report in its qualified immunity

analysis).

i. Bodily Privacy

In this circuit, “[i]t is clearly established that the

Fourteenth Amendment protects a sphere of privacy, and the

most ‘basic subject of privacy . . . the naked body.’” Hydrick

v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007), cert. granted,

judgment vacated on other grounds, 556 U.S. 1256 (2009)

(quoting Grummet, 779 F.2d at 494); see also Sepulveda,

967 F.2d at 1416 (“The right to bodily privacy is

fundamental. . . . and was clearly established at the time

. . . .”).

Anderson also likely attended a PREA training. 9 Under

the PREA, sexual abuse includes “[v]oyeurism, which is

defined as the inappropriate visual surveillance of a detainee

for reasons unrelated to official duties.” 6 C.F.R. § 115.6.

Moreover, Kern County Juvenile Hall’s policies require

9

Catherine Gonzalez, a Deputy Probation Officer, testified that she

taught Kern County’s PREA course and that she believed that Anderson

and Appleton completed the PREA training. Gonzalez testified that the

PREA course “goes over the policy,” but did not explicitly explain what

was covered in the training.

20 VAZQUEZ V. COUNTY OF KERN

supervision of showers to be provided by staff of the same

gender, and, absent exigent circumstances or incidental to a

routine safety check, require that a ward be allowed to

shower and perform bodily functions without nonmedical

staff of the opposite gender from viewing them.

Therefore, given that we have clearly recognized a

Fourteenth Amendment right to bodily privacy, the Juvenile

Hall administrative policies, and the training Anderson

likely attended, he is not entitled to qualified immunity for

Vazquez’s Fourteenth Amendment bodily privacy claim.

ii. Bodily Integrity and Right to Be Free From

Punishment

“Where guards themselves are responsible for the rape

and sexual abuse of inmates, qualified immunity offers no

shield.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir.

2000) (emphasis in original). “In the simplest and most

absolute of terms the . . . right of prisoners to be free from

sexual abuse [is] unquestionably clearly established [in the

Ninth Circuit] . . . and no reasonable prison guard could

possibly [believe] otherwise.” Schwenk v. Hartford,

204 F.3d 1187, 1197 (9th Cir. 2000).

Anderson argues that his alleged conduct—including

sexual comments and contact—is not equivalent to the

sexual abuse that we have found unconstitutional. Yet, in

Fontana, we noted that the alleged similar conduct, was

“malum in se” and that “[n]o reasonable officer could

believe that this conduct did not violate [the plaintiff’s]

constitutional rights.” Fontana, 262 F.3d at 882 n.8.

Moreover, the Kern County Juvenile Hall policy prohibiting

staff members from being alone in a room with minors

absent an emergency as well as Anderson’s likely PREA

training provided him with notice that his alleged conduct

VAZQUEZ V. COUNTY OF KERN 21

was unreasonable. 10 And, beyond the clearly established

case law, training, and juvenile hall policies, it is “obvious”

that a juvenile corrections officer should not sexually harass

or abuse a juvenile ward as it is always wrong for a juvenile

corrections officer to engage in such conduct. See Sharp,

871 F.3d at 912 (9th Cir. 2017). Accordingly, we conclude

that Anderson is not entitled to qualified immunity for

Vazquez’s bodily integrity or punishment claims.

II. Appleton’s Motion for Summary Judgment

Appleton sought summary adjudication of Vazquez’s

claim for relief for supervisory liability under § 1983.

“Although there is no pure respondeat superior liability

under § 1983, a supervisor is liable for the acts of his

subordinates if the supervisor participated in or directed the

violations, or knew of the violations [of subordinates] and

failed to act to prevent them. Preschooler II v. Clark Cty.

Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007)

(internal quotation marks and citation omitted). “The

requisite causal connection may be established when an

official sets in motion a series of acts by others which the

actor knows or reasonably should know would cause others

to inflict constitutional harms.” Id. at 1183 (internal

quotation marks and citation omitted).

Vazquez identified facts from which a jury could find

that Appleton “set[] in motion a series of acts” which he

reasonably should have known would cause Anderson to

10

PREA defines “sexual harassment” as “[r]epeated verbal

comments or gestures of a sexual nature to an inmate, detainee, or

resident by a staff member, contractor, or volunteer, including

demeaning references to gender, sexually suggestive or derogatory

comments about body or clothing, or obscene language or gestures.”

28 C.F.R. § 115.6.

22 VAZQUEZ V. COUNTY OF KERN

inflict constitutional harm. Id. at 1183. First, he observed

Anderson alone with female wards on more than one

occasion and failed to intervene. Anderson also testified that

Appleton gave him permission to be alone in a cell with

female wards during work details.

Second, Appleton was aware of a prior incident

involving Anderson’s supervision of female wards’ showers.

Approximately six months before Vazquez raised her

allegations, a staff member overheard Anderson tell a female

ward to get ready to shower when the female staff and other

wards were outside at physical education. The staff member

was concerned by Anderson’s actions, partly because the

gap in the shower curtains would allow someone sitting at

the staff counter to see into the showers. She took notes

about the incident and reported it to Appleton. Appleton did

not write Anderson up, but he did bring up the incident with

his supervisor. 11 Appleton testified that his supervisor told

him to remind Anderson to have a female staff member in

the unit while showers were conducted. Appleton testified

he did not recall exactly how he spoke to Anderson about the

matter but that he would have conveyed to him something

“along the lines” of needing “to have a female present during

showers.”

From this evidence a jury could find that Appleton knew

or reasonably should have known of Anderson’s violations

and failed to act to prevent them. See Preschooler II,

479 F.3d at 1182. Thus, viewing the evidence in the light

most favorable to Vazquez and making all justifiable

inferences in her favor, we hold that the district court erred

11

Appleton was trained that if he observed any red flags of sexual

abuse or if he received any reports from other staff members, he had to

document and report the observations.

VAZQUEZ V. COUNTY OF KERN 23

when it concluded there was no evidence supporting a causal

link between Appleton’s conduct and Anderson’s alleged

violation of Vazquez’s constitutional rights.

CONCLUSION

The district court erred when it granted Anderson’s and

Appleton’s motions for summary judgment. Because we

conclude the district court erred in granting summary

judgment, we need not consider Vazquez’s argument that the

district court erred when it imposed costs. Accordingly, for

the reasons described above, we REVERSE and REMAND

for further proceedings consistent with this opinion. 12

12

Furthermore, we vacate the district court’s order awarding costs.

We also vacate the district court’s judgment in favor of Kern County and

remand for further proceedings consistent with this opinion.