Megan McGuire v. Cory Cooper

United States Court of Appeals

For the Eighth Circuit

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No. 18-2809

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Megan McGuire

lllllllllllllllllllllPlaintiff - Appellee

v.

Cory Cooper

lllllllllllllllllllllDefendant

Timothy F. Dunning, Individually and in his official capacity as Sheriff of

Douglas County, Nebraska

lllllllllllllllllllllDefendant - Appellant

Douglas County

lllllllllllllllllllllDefendant

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Appeal from United States District Court

for the District of Nebraska - Omaha

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Submitted: November 14, 2019

Filed: March 6, 2020

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Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.

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ERICKSON, Circuit Judge.

Megan McGuire (“McGuire) was sexually assaulted by Cory Cooper

(“Cooper”), a deputy acting within the scope of his employment with the Sheriff’s

Office in Douglas County, Nebraska. McGuire alleged claims of unreasonable search

and seizure, equal protection, due process, supervisory liability, and municipal

liability under the Civil Rights Act, 42 U.S.C. § 1983. Sheriff Timothy F. Dunning

(“Sheriff Dunning”) moved for summary judgment based on qualified immunity.

Douglas County also moved for summary judgment. The district court denied both

motions. Sheriff Dunning filed this interlocutory appeal, arguing he is entitled to

qualified immunity. We reverse with directions to enter judgment in favor of Sheriff

Dunning on the basis of qualified immunity.

I. Background

At around 8:00 p.m. on February 10, 2013, Cooper, an on-duty deputy officer

employed by the Douglas County Sheriff’s Office, approached Kyle Worland’s truck

parked at Zorinsky Lake Park in Omaha, Nebraska. Worland, McGuire’s boyfriend,

was seated in the driver’s seat and McGuire was seated in the passenger’s seat. When

Cooper approached the passenger side of the truck, he smelled marijuana. While

shining his flashlight into the interior of the truck, he observed a mason jar containing

marijuana located on the center console.

Cooper took possession of the jar and told McGuire to step out of the truck.

Cooper walked McGuire to his patrol car and directed her to sit in the back seat. He

put the jar with marijuana on the roof of his car. After ascertaining information about

McGuire and Worland, Cooper retrieved Worland from the front seat of his truck and

placed him next to McGuire in the back of his patrol car. Cooper proceeded to search

Worland’s truck and found drug paraphernalia.

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After the search, Cooper walked Worland back to his truck and spoke to

Worland out of McGuire’s earshot. Cooper then returned to his car and informed

McGuire that he had “found stuff” and that Worland could go to jail if he reported the

incident. Instead of reporting the incident, Cooper began asking McGuire questions

about what she would do to keep her boyfriend out of jail. As Cooper was talking to

McGuire in the patrol car, Worland walked toward the lake and discarded the drug

paraphernalia.

Cooper pressed McGuire for nearly an hour about what she was willing to do

to keep her boyfriend out of jail. Confused and scared, McGuire eventually asked

Cooper if he wanted her to undress. Cooper purportedly replied, “I am not going to

say no” or words to that effect. Cooper stared at McGuire through his rearview

mirror while McGuire removed her shirt and bra. Cooper then got out of the front

seat, opened McGuire’s passenger side door, unzipped his pants, and asked McGuire

what else she would do. McGuire performed oral sex on Cooper for about five

seconds, at which point Cooper released McGuire and she ran to Worland’s truck and

they drove away.

McGuire reported the incident to the Omaha Police Department on February

14, 2013. The Omaha Police Department contacted the Douglas County Sheriff’s

Office about a week later to inform the Sheriff that it was investigating a sexual

assault by a law enforcement officer in Zorinsky Lake Park. The Sheriff’s Office did

not commence its own investigation.

On April 1, 2013, a sheriff’s deputy reported that Cooper had a suspicious

interaction with a woman with an arrest warrant whom Cooper had asked to meet at

a secluded park at 9:00 p.m. Cooper was placed on limited duty status on April 4,

2013. Only after this report of suspicious behavior did the Sheriff’s Office commence

its own investigation. The Sheriff’s Office discovered that Cooper had run a record

check on Worland and McGuire, and that the GPS in Cooper’s car placed Cooper at

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Zorinsky Lake Park on February 10, 2013, at the time of McGuire’s assault. Cooper

was terminated on May 13, 2013.

In June 2013, Cooper was charged with first degree sexual assault. Cooper

pled no contest on April 14, 2015, and was found guilty of third degree assault and

attempted tampering with evidence, class I misdemeanors. On June 10, 2015, a state

district judge in Douglas County sentenced Cooper to consecutive terms of six

months in jail on each count.

At the time of the incident with McGuire, the Douglas County Sheriff’s Office

did not have a policy of reviewing employees’ behavior to determine those at risk for

sexual misconduct and it did not have a comprehensive policy addressing sexual

misconduct. The Sheriff’s Office had implemented, however, a citizen complaint

process where citizens could submit complaints for review. Since Sheriff Dunning’s

appointment in 1995, there had been at least fifteen complaints of sexual misconduct

by deputies employed by the Douglas County Sheriff’s Office.

As to the claims against Sheriff Dunning and his potential liability, the district

court found: (1) because Sheriff Dunning was notified of every citizen complaint

regarding deputies under his supervision and he had actual notice of at least eleven

complaints of sexual misconduct in his department, a jury could find there was a

pattern and practice of Douglas County sheriff deputies involved in inappropriate

sexual misconduct; (2) the lack of policies and training on sexual misconduct, the

lack of investigation into allegations of sexual misconduct by deputies, and the

alleged “cavalier attitude” by the Sheriff was sufficient evidence to give rise to a jury

question regarding deliberate indifference; and (3) there was sufficient evidence of

a causal link between Sheriff Dunning’s failure to train or supervise his employees

and Cooper’s assaultive behavior such that he is not immune from McGuire’s due

process, equal protection, and Fourth Amendment claims.

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II. Discussion

When reviewing an interlocutory appeal from the denial of a motion for

summary judgment, we must first address our jurisdiction. Austin v. Long, 779 F.3d

522, 524 (8th Cir. 2015) (citing White v. McKinley, 519 F.3d 806, 812 (8th Cir.

2008)). “Summary judgment ‘determinations are appealable when they resolve a

dispute concerning an abstract issue of law relating to qualified immunity–typically,

the issue whether the federal right allegedly infringed was clearly established.’” Id.

(quoting Behrens v. Pelletier, 516 U.S. 299, 313 (1996)). We lack jurisdiction to

consider an interlocutory “appeal if ‘at the heart of the argument is a dispute of fact.’”

Id. (quoting Pace v. City of Des Moines, 201 F.3d 1050, 1053 (8th Cir. 2000)).

Qualified immunity is a doctrine that “shields a government official from

liability unless his conduct violates ‘clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Burns v. Eaton, 752 F.3d

1136, 1139 (8th Cir. 2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The party asserting the defense of qualified immunity has the burden of establishing

“the relevant predicate facts, and at the summary judgment stage, the nonmoving

party is given the benefit of all reasonable inferences.” White, 519 F.3d at 813 (citing

Pace, 201 F.3d at 1056). “Because our jurisdiction is limited in an interlocutory

appeal from an order denying qualified immunity, we are constrained by the version

of the facts that the district court assumed or likely assumed in reaching its decision,

to the extent that version is not blatantly contradicted by the record.” Thompson v.

Murray, 800 F.3d 979, 983 (8th Cir. 2015) (cleaned up).

Even in the absence of an allegation of direct participation in a constitutional

violation, a supervising officer may still face liability for an alleged failure to train

and supervise subordinates. Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010). In

order to establish a claim for failing to supervise Cooper, McGuire must show that

Sheriff Dunning: “1) Received notice of a pattern of unconstitutional acts committed

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by subordinates; 2) Demonstrated deliberate indifference to or tacit authorization of

the offensive acts; 3) Failed to take sufficient remedial action; and 4) That such

failure proximately caused injury to [McGuire].” Parrish, 594 F.3d at 1002 (quoting

Jane Doe A v. Special Sch. Dist. of St. Louis Cty., 901 F.2d 642, 645 (8th Cir. 1990)).

Sheriff Dunning contends that, even taking in a light most favorable to

McGuire all of the reported incidents of prior sexual misconduct by deputies

employed by the Sheriff’s Office, he is entitled to qualified immunity because these

incidents are insufficient to provide notice that an on-duty deputy might sexually

assault a member of the public like Cooper did. The circumstances of the prior

incidents are contained in the record at paragraph 86 of Sheriff Dunning’s declaration

dated March 28, 2018. The district court listed in a footnote fifteen prior incidents

of sexual misconduct that Sheriff Dunning knew about, but neither made detailed

findings regarding them nor reasoned how they were similar to the sexual misconduct

at issue in this case.

Constraining ourselves to the version of facts in the record that the district

court assumed or likely assumed in favor of McGuire, we conclude that the prior

instances of sexual misconduct are not similar in kind or sufficiently egregious in

nature to demonstrate a pattern of sexual assault against members of the public by

deputies. In order to establish a pattern, our case law requires a showing of more than

general allegations of a wide variety of sexual misconduct. It requires the other

misconduct to “be very similar to the conduct giving rise to liability.” Livers v.

Schenck, 700 F.3d 340, 356 (8th Cir. 2012). Put another way, the conduct must be

“sufficiently egregious in nature.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir.

2015).

In this case, the other misconduct included trading cigarettes for a detainee’s

display of her breasts; licking a minor stepdaughter’s nipples during horseplay;

asking “deeply personal and inappropriate questions” to members of the public;

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engaging in verbal sexual harassment; having consensual sexual contact at the office;

and abusing work hours to conduct personal business or ask women out on a date.

While this behavior is troubling, it is not enough to put a supervising official on

notice that a deputy might use his position and authority to separate a woman from

her boyfriend at the park and coerce her to engage in sexual contact with him. The

summary judgment record, even when viewed in a light most favorable to McGuire,

fails to establish that Sheriff Dunning received notice of a pattern of similar

unconstitutional acts being committed by his subordinates. A reasonable officer in

Sheriff Dunning’s position would not have known that he needed to more closely

supervise his deputies, including Cooper, or they might sexually assault a member of

the public.

A supervisor’s failure to train an inferior officer may also give rise to

individual liability under § 1983 if (1) “the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into contact,”

Parrish, 594 F.3d at 1002 (quoting Otey v. Marshall, 121 F.3d 1150, 1156 (8th Cir.

1997)), and (2) “the alleged failure to train ‘actually caused’ the constitutional

deprivation.” Id. (quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)).

We have previously explained “that there is no patently obvious need to train officers

not to sexually assault women, nor is there a patently obvious need to train officers

that if they sexually assault a woman, they may be charged with a felony.” Id. A

reasonable supervisor in Sheriff Dunning’s position would not know that a failure to

specifically train Cooper not to sexually assault a woman would cause Cooper to

engage in that behavior. Parrish, 594 F.3d at 1002–03; Andrews, 98 F.3d at 1078.

Sheriff Dunning is entitled to qualified immunity in his individual capacity.

III. Conclusion

We reverse the district court’s decision and direct the court to enter judgment

in favor of Sheriff Dunning on the basis of qualified immunity.

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