Ullery v. Bradley

949 F.3d 1282

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 10, 2020
• Docket: 19-1079
• Status: Published

Opinion

PUBLISH FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court SUSAN ULLERY,

Plaintiff - Appellee,

v. No. 19-1079

BRUCE BRADLEY, in his individual and official capacity,

Defendant - Appellant,

and

DANNY LAKE, in his individual and official capacity; TERRY JACQUES, in his individual and official capacity; RICK RAEMISCH, in his official capacity; DAVID JOHNSON, in his individual and official capacity; DAVID WANG, in his individual and official capacity; DAVID URICH, in his individual and official capacity; RAMONA AVANT, in her individual and official capacity; SCOTT SMITH, in his individual and official capacity,

Defendants. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-00839-STV) _________________________________ Submitted on the briefs: *

David R. DeMuro, Vaughan & DeMuro, Denver, Colorado, for Defendant-Appellant.

David A. Lane and Liana G. Orshan, Killmer, Lane & Newman, LLP, for Plaintiff- Appellee. _________________________________

Before PHILLIPS, BALDOCK, and MORITZ, Circuit Judges. _________________________________

BALDOCK, Circuit Judge. _________________________________

In this 42 U.S.C. § 1983 action, Defendant Bruce Bradley appeals the district

court’s order denying his motion to dismiss based on qualified immunity. Plaintiff

Susan Ullery alleges Defendant violated, among other things, her Eighth Amendment

right to be free from cruel and unusual punishment by using excessive force against

her in the form of sexual assault and abuse. On appeal, Defendant does not challenge

the district court’s determination that he violated a constitutional right. Rather,

Defendant argues he is entitled to qualified immunity even if he violated the

Constitution because Plaintiff’s asserted Eighth Amendment right to be free from

sexual abuse was not clearly established at the time of the alleged violations—between

2014 and April 2016.

We conclude the district court erred to the extent it held the contours of the

asserted constitutional right were clearly established before August 11, 2015. But we

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 2 further conclude any reasonable corrections officer in Defendant’s position since

August 11, 2015, would have known the alleged conduct violated the Eighth

Amendment based upon the clearly established weight of persuasive authority.

Because any actionable constitutional violations in this case would necessarily have

occurred after this date, the law was clearly established for all relevant purposes, and

the district court therefore correctly denied Defendant qualified immunity. Thus,

exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 1

I.

Plaintiff is a former inmate at the Denver Women’s Correctional Center, which

is a prison in the Colorado state prison system. Between early 2014 and April 2016,

Plaintiff worked in the canteen services at the prison under the direction of Defendant,

a corrections officer and supervisor of inmates who worked in the department. During

this time, Defendant sexually harassed, abused, and assaulted Plaintiff. Defendant’s

1 The district court’s order denying Defendant’s motion to dismiss is not a final judgment. See Ashcroft v. Iqbal, 556 U.S. 662, 671–72 (2009). Nevertheless, a “district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the meaning of § 1291” and is immediately appealable where the decision turns on a question of law. Id.; see also Matthews v. Bergdorf, 889 F.3d 1136, 1143 (10th Cir. 2018). Defendant argues this appeal is limited to the legal issue of whether he is entitled to qualified immunity under the facts alleged in Plaintiff’s amended complaint, focusing specifically on whether the asserted constitutional right was clearly established. Our resolution of this appeal does not hinge on any factual disputes because qualified immunity arises here on a motion to dismiss. Lowe v. Raemisch, 864 F.3d 1205, 1207 (10th Cir. 2017), cert. denied sub nom. Apodaca v. Raemisch, 139 S. Ct. 5 (2018) (“reviewing the sufficiency of a complaint . . . involves a pure issue of law”); see also Ortiz v. Jordan, 562 U.S. 180, 188 (2011) (explaining the clearly-established-law inquiry is a question of law). Accordingly, we have jurisdiction to determine whether Defendant’s alleged actions violated a clearly established right. Lowe, 864 F.3d at 1075. 3 alleged verbal harassment includes, among other things, suggesting that “jacking off

and [his] semen hitting [Plaintiff] in the face would make her feel better[,]” telling

Plaintiff he wanted to “shove [his] dick in [her] ass[,]” and demanding Plaintiff expose

her breasts to him under threat of reprisal. Plaintiff further alleges Defendant: (1)

would “repeatedly approach [her] from behind and forcefully press his genitals into

her buttocks” and “moan[ ] mmmmmm in [her] ear”; (2) “purposefully and knowingly

used physical force against [her] by touching her breasts”; and on one occasion (3)

“backed her into a wall, forcefully thrust his hand between her legs, and [ ] grop[ed]

her crotch.”

On April 10, 2018, Plaintiff filed a complaint in the United States District Court

for the District of Colorado, alleging Defendant’s sexual abuse violated her Eighth

Amendment right to be free from excessive force and Fourteenth Amendment right to

be secure in her bodily integrity. 2 Plaintiff’s complaint also asserted claims against

other defendants, including Defendant’s supervisors, who were employees of the

Colorado Department of Corrections. These other defendants and claims are not

involved in this appeal.

Defendant filed a motion to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim. In support of his motion, Defendant

asserted the defense of qualified immunity and argued he is entitled to a dismissal even

2 On July 6, 2018, Plaintiff filed her First Amended Complaint, which superseded her original complaint and is the operative pleading here. We will refer to Plaintiff’s First Amended Complaint simply as the “complaint” for purposes of resolving this appeal. 4 if he violated Plaintiff’s Eighth Amendment rights because the law was not clearly

established. 3 The district court first concluded Plaintiff’s allegations of sexual abuse

and assault sufficiently stated a violation of the Eighth Amendment’s prohibition of

cruel and unusual punishment. Second, the court denied Defendant qualified immunity

because it determined Plaintiff’s asserted Eighth Amendment right was clearly

established at the relevant time. Defendant timely noticed this appeal.

II.

“We review de novo the district court’s denial of a motion to dismiss based on

qualified immunity.” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). In

conducting this review, we accept all factual allegations in the complaint as true and

draw all reasonable inferences in Plaintiff’s favor. Lowe, 864 F.3d at 1208. To survive

a Rule 12(b)(6) motion, the complaint must contain factual allegations that plausibly

give rise to an entitlement to relief. Iqbal, 556 U.S. at 678. This standard “does not

require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

Before turning to the merits of Defendant’s challenge to the district court’s

conclusion regarding qualified immunity, we must first address Defendant’s arguments

3 The district court dismissed the Fourteenth Amendment claim against Defendant on the ground Plaintiff’s asserted right to bodily integrity is governed by the Eighth Amendment. In their briefs on appeal, the parties limit their arguments to the issue of the alleged Eighth Amendment violation. Thus, only the district court’s ruling on the Eighth Amendment claim against Defendant is before us. 5 concerning the inadequacy of the factual allegations in Plaintiff’s complaint.

Defendant takes issue with the district court’s reading of the complaint and Plaintiff’s

presentation of the allegations on appeal. Specifically, Defendant argues the district

court misconstrued the allegations in the complaint underlying Plaintiff’s Eighth

Amendment claim and erred in considering instances of alleged sexual abuse barred

by the statute of limitations.

First, Defendant argues any constitutional violation arising from the allegation

he would “repeatedly approach [Plaintiff] from behind and forcefully press his genitals

into her buttocks” and “moan[ ] mmmmmm in [her] ear” is barred by the statute of

limitations. “The forum state’s statute of limitations for personal-injury actions sets

the limitations period for § 1983 actions,” Gee v. Pacheco, 627 F.3d 1178, 1190–91

(10th Cir. 2010), and the applicable limitations period in Colorado is two years. Colo.

Rev. Stat. § 13–80–102 (providing the general limitation for personal injury claims in

Colorado is two years from when the action accrues). Federal law, on the other hand,

governs when a § 1983 claim accrues and when the limitations period begins to run.

Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006). “A civil rights action accrues

when the plaintiff knows or has reason to know of the injury which is the basis of the

action.” Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (quoting Baker v. Bd.

of Regents, 991 F.2d 628, 632 (10th Cir. 1993)).

Colorado’s two-year statute of limitations applies in this case. See Gee, 627

F.3d at 1190–91; Colo. Rev. Stat. § 13–80–102. Plaintiff filed her original complaint

on April 10, 2018, and she does not argue for equitable tolling of the limitations period.

6 Accordingly, the applicable statute of limitations bars claims arising out of the alleged

constitutional violations Defendant committed before April 10, 2016.

It is proper to dismiss a claim on the pleadings based on the statute of limitations

only if the affirmative defense appears plainly on the face of the complaint itself.

Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018). The face of

the complaint at issue provides Defendant would “repeatedly approach [Plaintiff] from

behind and forcefully press his genitals into her buttocks” and “moan[ ] mmmmmm in

[her] ear[,]” and “Defendant [ ] repeated this behavior every time that [Plaintiff]

worked inventory.” Plaintiff’s complaint, however, does not identify specific dates

when each alleged instance of sexual abuse occurred. Although claims arising out of

constitutional violations Defendant committed before April 10, 2016 are time-barred,

it is still plausible—when construing the complaint in the light most favorable to

Plaintiff—Defendant engaged in this conduct at least once, and possibly on several

occasions, within the limitations period. Thus, we will consider whether this alleged

sexual misconduct violated clearly established law.

Next, Defendant contends we should not consider the allegation he

“purposefully and knowingly used physical force against [Plaintiff] by touching her

breasts” because it is conclusory. We disagree. “[U]nder Rule 8, specific facts are not

necessary; the statement need only give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” S.E.C. v. Shields, 744 F.3d 633, 641 (10th Cir.

2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)).

When read in the context of the entire complaint, rather than in isolation, this allegation

7 provides Defendant sufficient notice of the ground upon which Plaintiff’s claim for

relief rests. See Burnett v. Mortg. Elec. Registration Sys., 706 F.3d 1231, 1236 (10th

Cir. 2013) (explaining our review of a complaint is a “context-specific task”).

Finally, regarding the allegation Defendant “backed [Plaintiff] into a wall,

forcefully thrust his hand between her legs, and [ ] grop[ed] her crotch[,]” Defendant

argues the district court erred in interpreting the complaint to state this groping

occurred “for approximately three minutes.” Defendant’s argument is, again, without

merit. The complaint specifically provides prison officials “left [Plaintiff] alone with

Defendant [ ] for approximately three minutes after he had begun to assault her.” These

defendants, Plaintiff further alleges, “created the danger that caused [Plaintiff] to be

sexually assaulted [by] Defendant [ ] [when he] forcibly grop[ed] her crotch for several

minutes.” Reading the complaint in the light most favorable to Plaintiff and drawing

all reasonable inferences in her favor, it is therefore plausible this sexual assault lasted

three minutes or, at the very least, for several minutes. See Lowe, 864 F.3d at 1208.

Whether evidence supports these allegations, and to what extent the statute of

limitations might limit Plaintiff’s Eighth Amendment claims, are questions for further

proceedings. It is sufficient at this stage for us to conclude the allegations in Plaintiff’s

complaint plausibly support her Eighth Amendment claim against Defendant. Having

addressed Defendant’s arguments concerning the well-pleaded facts underlying the

alleged constitutional violations, we next turn to whether the district court erred in

denying Defendant qualified immunity against Plaintiff’s Eighth Amendment claim.

8 III.

“The doctrine of qualified immunity protects government officials ‘from

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

statutory or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). “Qualified immunity balances two important interests—[1] the

need to hold public officials accountable when they exercise power irresponsibly and

[2] the need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Id. The purpose of the doctrine is to provide

government officials “breathing room to make reasonable but mistaken judgments

about open legal questions.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).

“Because the focus is on whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of the law at the time of the

conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks

omitted). When a defendant raises the qualified-immunity defense, the plaintiff must

therefore establish (1) the defendant violated a federal statutory or constitutional right

and (2) the right was clearly established at the time of the defendant’s conduct. District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). Under this two-part test, “immunity

protects all but the plainly incompetent or those who knowingly violate the law.”

Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

9 For purposes of this appeal, Defendant does not dispute he violated Plaintiff’s

Eighth Amendment right to be free from excessive force in the form of sexual abuse.

Defendant instead focuses on the second prong of the qualified-immunity inquiry,

arguing he is entitled to qualified immunity because the law was not clearly established

at the relevant time. The clearly-established-law prong therefore lies at the heart of

this appeal. Because, however, the nature of the alleged constitutional violations are

pertinent to our clearly-established-law analysis—and both parties devote substantial

portions of their briefs to addressing the underlying violations—we first outline the

framework for evaluating a prisoner’s Eighth Amendment sexual abuse claim.

A.

The Eighth Amendment guarantees prisoners the right to be free from “cruel and

unusual punishments” while in custody. Whitley v. Albers, 475 U.S. 312, 318 (1986)

(quoting U.S. Const. amend. VIII). “The unnecessary and wanton infliction of pain

constitutes cruel and unusual punishment forbidden by the Eighth Amendment”; and

“among unnecessary and wanton inflictions of pain are those that are totally without

penological justification.” Hope v. Pelzer, 536 U.S. 730, 737 (2002) (alterations and

internal quotation marks omitted). Plaintiff alleges Defendant violated her right to be

free from cruel and unusual punishment by using excessive force against her in the

form of sexual assault and abuse.

Although the Supreme Court has not addressed the legal framework for

analyzing prisoners’ sexual abuse claims against prison officials, we—along with our

sister circuits—have drawn from excessive force precedents to analyze such claims.

10 See Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003); Ricks v. Shover, 891 F.3d

468, 474–75 (3d Cir. 2018). Under these precedents, a prison official violates the

Eighth Amendment only (1) if the constitutional deprivation is “objectively

sufficiently serious” and (2) the prison official has a “sufficiently culpable state of

mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks

omitted). To state a claim for sexual abuse against a prison official under the Eighth

Amendment, a plaintiff must therefore satisfy two elements—one objective and one

subjective. Smith, 339 F.3d at 1212.

To satisfy the objective component, the plaintiff must show the defendant’s

“alleged wrongdoing was objectively harmful enough to establish a constitutional

violation.” Id. (quoting Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289

(10th Cir. 1999)). This objective prong is “contextual and responsive to contemporary

standards of decency.” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). But

as the Supreme Court has explained, not “every malevolent touch by a prison guard

gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth

Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes

from constitutional recognition de minimis uses of physical force, provided that the use

of force is not of a sort repugnant to the conscience of mankind.” Id. at 9–10 (internal

quotation marks omitted). Conduct is repugnant to the conscience of mankind when it

is “incompatible with evolving standards of decency” or involves “the unnecessary and

wanton infliction of pain.” Id. at 10 (quoting Estelle v. Gamble, 429 U.S. 97, 102–03

(1976)).

11 Regarding the subjective prong of an excessive force claim, we ask whether the

defendant acted with a “sufficiently culpable state of mind.” Smith, 339 F.3d at 1212

(quoting Giron, 191 F.3d at 1289). When a prisoner alleges excessive force in the form

of sexual abuse, the subjective element “turns on whether force was applied in a good

faith effort to maintain or restore discipline or maliciously and sadistically for the very

purpose of causing harm.” Id. “In cases of sexual abuse or rape, the conduct itself

constitutes sufficient evidence that force was used maliciously and sadistically for the

very purpose of causing harm.” Id. at 1212–13 (internal quotation marks omitted)

(quoting Giron, 191 F.3d at 1290).

Because the sexual misconduct alleged here is unquestionably “repugnant to the

conscience of mankind[,]” see Hudson, 503 U.S. at 9–10, it is unsurprising Defendant

has elected not to challenge the district court’s conclusion regarding the existence of a

constitutional violation. To be sure, Defendant’s alleged actions—(1) approaching

Plaintiff from behind and forcibly pressing his genitals into her buttocks while

lasciviously moaning “mmmmmm” in her ear; (2) purposefully and knowingly using

physical force against Plaintiff by touching her breasts; and (3) forcibly grabbing and

fondling Plaintiff’s crotch without her consent—are each sufficiently serious to satisfy

the Eighth Amendment’s objective component and without any penological

justification. Given the factual circumstances of this case, any one of these three

alleged uses of force, even when viewed in isolation, deeply offends contemporary

standards of decency and therefore violates the Eighth Amendment. See Crawford v.

Cuomo, 796 F.3d 252, 257, 259–60 (2d Cir. 2015) (Crawford I) (explaining “a single

12 incident of sexual abuse, if sufficiently severe or serious, may violate an inmate’s

Eighth Amendment rights no less than repetitive abusive conduct”).

Despite the intolerable conduct at issue, Defendant is nonetheless entitled to

qualified immunity unless Plaintiff has carried her burden of showing the law was

clearly established. For the reasons discussed below, we conclude Plaintiff has, for all

relevant purposes, satisfied this burden.

B.

Turning to the issue of whether Defendant is entitled to qualified immunity

under the circumstances giving rise to this § 1983 action, we conclude his actions

violated clearly established law. Specifically, the clearly established weight of

persuasive authority in our sister circuits as of August 11, 2015, would have put any

reasonable corrections officer in Defendant’s position on notice his alleged conduct

would violate the Eighth Amendment. Because Plaintiff’s asserted right to be free

from sexual abuse was clearly established at the relevant time, Defendant is not entitled

to qualified immunity.

1.

“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) (per curiam) (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). “To be clearly established, a legal principle must have a sufficiently

clear foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. “The

dispositive question is ‘whether the violative nature of the particular conduct is clearly

13 established.’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742).

Accordingly, the Supreme Court has repeatedly admonished circuit courts “not to

define clearly established law at a high level of generality.” Kisela, 138 S. Ct. at 1152.

Though “a case directly on point” is not required, “existing precedent must have placed

the constitutional question regarding the illegality of the defendant’s conduct beyond

debate.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir.), cert. denied sub nom.

Cummings v. Bussey, 140 S. Ct. 81 (2019).

“Ordinarily . . . there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must have found

the law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.

2012) (internal quotation marks omitted). But when a public official’s conduct is so

egregious even a general precedent applies with “obvious clarity,” the right can be

clearly established notwithstanding the absence of binding authority involving

materially similar facts. Lowe, 864 F.3d at 1210 (internal quotation makes omitted);

see also Hope, 536 U.S. at 741 (stating defendants “can still be on notice that their

conduct violates established law even in novel factual circumstances,” so long as the

law provided “fair warning” their conduct was unconstitutional). Critically, “the

federal right allegedly violated must have been ‘clearly established at the time of the

defendant’s unlawful conduct.’” Cummings, 913 F.3d at 1240 (quoting Cillo v. City of

Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013)).

Relying on a footnote in Wesby, Defendant argues only the Supreme Court can

clearly establish law in the particular circumstances of a case. See Wesby, 138 S. Ct.

14 at 591 n.8 (“We have not yet decided what precedents—other than our own—qualify

as controlling authority for purposes of qualified immunity.”). While Wesby may have

suggested this is an open question, we do not think only Supreme Court precedents are

relevant in deciding whether a right is clearly established. See Wilson v. Layne, 526

U.S. 603, 617 (1999) (Rehnquist, C.J.) (explaining courts may rely on “a consensus of

cases of persuasive authority” to determine whether a “reasonable officer could not

have believed that his actions were lawful”). In recent years, the Supreme Court has

reaffirmed that “qualified immunity is lost when plaintiffs point either to ‘cases of

controlling authority in their jurisdiction at the time of the incident’ or to ‘a consensus

of cases of persuasive authority.’” al-Kidd, 563 U.S. at 742 (quoting Wilson, 526 U.S.

at 617).

Following the Supreme Court’s lead, nearly all of our sister circuits, like us,

consider both binding circuit precedent and decisions from other circuits in

determining whether the law is clearly established. See Perry v. Durborow, 892 F.3d

1116, 1123 (10th Cir. 2018); Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 762 (3d

Cir. 2019); Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019); Werner v. Wall, 836

F.3d 751, 762 (7th Cir. 2016); Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir.

2014); Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014); Bame v. Dillard, 637

F.3d 380, 384 (D.C. Cir. 2011); Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011);

Baker v. City of Hamilton, 471 F.3d 601, 606 (6th Cir. 2006); Wilson v. City of Boston,

421 F.3d 45, 56 (1st Cir. 2005); Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 755 (8th Cir.

2002); cf. Carruth v. Bentley, 942 F.3d 1047, 1054 (11th Cir. 2019) (“look[ing] only

15 to decisions from the United States Supreme Court, this Court, or the [highest court of

the relevant state] for clearly established law”).

Defendant’s argument therefore conflicts with Supreme Court authority, our

precedents, and the decisions of our sister circuits. Limiting the source of clearly

established law to only Supreme Court precedents also is unwarranted and impractical

given the current state of the doctrine. Such a restriction would transform qualified

immunity into an absolute bar to constitutional claims in most cases—thereby skewing

the intended balance of holding public officials accountable while allowing them to

perform their duties reasonably without fear of personal liability and harassing

litigation. See Pearson, 555 U.S. at 231. Accordingly, Defendant’s position is

untenable.

2.

Our first step in the clearly-established-law inquiry is to consider cases of

controlling authority in this jurisdiction, which would settle the question before us.

We therefore start with Supreme Court and Tenth Circuit decisions that have addressed

the asserted right. Neither the district court nor the parties cite a Supreme Court

decision explicitly discussing an inmate’s right under the Eighth Amendment to be free

from sexual abuse. But the parties do dispute whether our prior decisions have clearly

established the law on the particular circumstances of this case.

In concluding Plaintiff carried her burden of showing the law was clearly

established, the district court cited several of our prior cases involving sexual assaults

of inmates. The district court cited Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th

16 Cir. 1998), for the threshold principle that an inmate’s “deprivations resulting from [ ]

sexual assaults are sufficiently serious to constitute a violation under the Eighth

Amendment.” Similarly, the district court also cited our statement in Tafoya v.

Salazar, 516 F.3d 912, 916 (10th Cir. 2008), that “[t]here is no question that sexual

assault of the kind suffered by [plaintiff] meets the objective component of an Eighth

Amendment claim.” And finally, the district court cited Gonzales v. Martinez, 403

F.3d 1179, 1186 (10th Cir. 2005), for the following proposition: “[A] plaintiff’s

uncontroverted claim of deprivations resulting from sexual assault are sufficiently

serious to constitute a violation under the Eighth Amendment.” (Internal quotation

marks omitted.). Plaintiff argues Defendant’s alleged conduct is manifestly included

within these precedents and the law was therefore clearly established at the relevant

time.

But as Defendant correctly points out, these statements of law define the

underlying constitutional right at an unacceptably “high level of generality.” Kisela,

138 S. Ct. at 1152. Although these cases describe an inmate’s right to be free of sexual

assault in clear and broad terms, “[t]he dispositive question is ‘whether the violative

nature of the particular conduct is clearly established.’” Mullenix, 136 S. Ct. at 308

(quoting al-Kidd, 563 U.S. at 742). And these decisions fail to describe the sexual

assaults at issue with sufficient detail to clearly establish that Defendant’s particular

conduct violated the Eighth Amendment. See Tafoya, 516 F.3d at 914–16 (using the

general term “sexual assault” to describe the misconduct); Barney, 143 F.3d at 1305–

07, 1310 (same).

17 Plaintiff contends our published opinion in Gonzales clearly establishes

Defendant’s alleged actions violated the Eighth Amendment. In Gonzales, jail guards

“sexually assaulted” female inmates on several occasions. 403 F.3d at 1181. Although

we described one such instance in detail—where the guard grabbed the plaintiff’s arm,

said “[l]et’s start off where we left yesterday[,]” “pressed his body against hers and

tried to kiss her,” but did not “have anything unzipped” during the encounter—the

nature of the other sexual assaults is unclear. Id.

While Gonzales does describe one instance of sexual assault in more detail than

our other precedents, the decision is still insufficient to clearly establish the violative

nature of the particular conduct alleged in this case. Because only the liability of the

supervisory defendants was at issue in Gonzales, we did not analyze the

constitutionality of the underlying sexual assaults or consider whether such conduct

violated the Eighth Amendment. It might be possible for a case addressing only

supervisory liability to put a reasonable, non-supervisory official on notice for

purposes of qualified immunity. But Gonzales does not clarify whether the specific

conduct Plaintiff argues is materially analogous to the sexual abuse alleged here would

violate the Eighth Amendment. See id. at 1182 n.8 (noting the plaintiff-appellant’s

“third claim for assault and battery against [the sexual assaulters], was dismissed with

prejudice after the district court dismissed the § 1983 and negligent supervision

claims”). Thus, Plaintiff’s reliance on Gonzales is unavailing.

Defendant, on the other hand, argues our unpublished decision in Joseph v. U.S.

Fed. Bureau of Prisons, No. 00-1208, 232 F.3d 901, 2000 WL 1532783 (10th Cir.

18 2000) (unpublished), demonstrates the law was not clearly established at the time of

the alleged constitutional violations. In Joseph, a male inmate alleged a female

secretary who worked in the education department of the prison “violated his Eighth

Amendment rights by subjecting him to sexual harassment” when she “touched him

several times in a suggestive manner and exposed her breasts to him.” Id. at *1. We

held “the alleged instances of sexual harassment were not ‘objectively, sufficiently

serious’ to demonstrate a use of force of constitutional magnitude” in violation of the

Eighth Amendment. Id. at *2 (quoting Farmer, 511 U.S. at 834).

An unpublished decision from this court “can be quite relevant in showing that

the law was not clearly established,” especially when “the same alleged victim and

same defendant conduct are involved.” Grissom v. Roberts, 902 F.3d 1162, 1168 (10th

Cir. 2018) (emphasis added). Joseph, however, is not such a decision because the

allegations of sexual harassment mentioned therein are ambiguous and unspecified.

Due to the vague and limited factual description of the conduct underlying the

plaintiff’s Eighth Amendment claim, which we speculate was less egregious than the

sexual abuse alleged here, Joseph is not helpful in determining whether the law was or

was not clearly established. For the same reason the factual discussions in our binding

precedents discussed above are inadequate to clearly establish the law, Joseph fails to

carry the day for Defendant.

Neither the district court nor Plaintiff have identified any case from the Supreme

Court or this court squarely addressing whether Defendant’s alleged conduct violates

the Eighth Amendment. Our clearly-established-law inquiry, however, does not end

19 here. Despite the lack of on-point, binding authority addressing the issue, we must

now consider whether the right was clearly established based on either a consensus of

persuasive authority or general constitutional principles.

3.

In the absence of binding precedent specifically adjudicating the right at issue,

the right may still be clearly established based on a “consensus of cases of persuasive

authority” from other jurisdictions. al-Kidd, 563 U.S. at 742 (quoting Wilson, 526 U.S.

at 617); see also Perry, 892 F.3d at 1123. Plaintiff argues the clearly established

weight of out-of-circuit authorities would have put any reasonable corrections officer

in Defendant’s position on notice his conduct violated the Constitution. Accordingly,

we now proceed to examine the relevant decisions of our sister circuits addressing the

right of inmates under the Eighth Amendment to be free from sexual abuse.

The consensus of persuasive authority from our sister circuits since August 11,

2015, places the constitutional question in this case “beyond debate.” See Cummings,

913 F.3d at 1239. The Second, Seventh, Eighth, and Ninth Circuits have all held—in

published decisions involving materially analogous facts—sexual abuse of the nature

alleged here violates the Eighth Amendment. Even more, the Third and Sixth Circuits

have recognized an inmate’s right to be free from sexual abuse under the Eighth

Amendment was clearly established at the time of Defendant’s unlawful conduct.

We begin our discussion of the relevant out-of-circuit authority with the Second

Circuit’s key decisions addressing Eighth Amendment claims for sexual abuse. In

20 Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997), the Second Circuit recognized

“sexual abuse of a prisoner by a corrections officer may in some circumstances violate

the prisoner’s right [under the Eighth Amendment] to be free from cruel and unusual

punishment.” Id. at 860–61. There, the plaintiff alleged a female corrections officer

“squeezed his hand, touched his penis, and said, “[Y]ou know your [sic] sexy black

devil, I like you.” Id. 859–60. The plaintiff further claimed the defendant, on a

separate occasion, bumped into him “with both her breast so hard [he] could feel the

points of her nipples against [his] chest,” and also “bumped into him . . . with her whole

body vagina against penis pinning [him] to the door.” Id. at 860. Though the court

held sexual abuse of an inmate could violate the Eighth Amendment, it concluded the

“small number of incidents in which [the plaintiff] allegedly was verbally harassed,

touched, and pressed against without [ ] consent” were not “objectively sufficiently

serious” to state a cognizable claim. Id. at 861.

Eighteen years later—on August 11, 2015—the Second Circuit reevaluated its

opinion in Boddie in light of evolved, contemporary standards of decency. Crawford

I, 796 F.3d at 254. The court first clarified “the rule set forth in Boddie: A corrections

officer’s intentional contact with an inmate’s genitalia or other intimate area, which

serves no penological purpose and is undertaken with the intent to gratify the officer’s

sexual desire or to humiliate the inmate, violates the Eighth Amendment.” Id. Turning

to the facts of the case, the court concluded a corrections officer violated one of the

plaintiff’s constitutional rights by “fondl[ing] and squeeze[ing] [his] penis” during a

frisk in the middle of a visit with the inmate’s wife to “make sure [the plaintiff] did not

21 have an erection.” Id. at 255, 258. The court also determined the same officer violated

the other plaintiff’s rights when he allegedly “squeezed” and “fondled” the plaintiff’s

penis, “roamed” his hands down the inmate’s thigh, and made demeaning comments

during a purported search. Id. at 255, 258–59.

Although the court applied the same general standard set forth in Boddie, which

had not changed, it concluded the defendant’s alleged actions “unquestionably”

violated the Eighth Amendment. Id. at 259–60. The court explained “conduct that

might not have been seen to rise to the severity of an Eighth Amendment violation 18

years ago may now violate community standards of decency.” Id. at 260. And for this

reason, the court pronounced “the officer’s conduct in Boddie would flunk its own test

today.” Id. at 260.

The Second Circuit’s holding in Crawford I paralleled the decisions of other

circuit courts addressing sexual misconduct materially analogous to Defendant’s

alleged actions. In Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012), for instance, the

plaintiff alleged the defendant violated the Eighth Amendment when she entered the

inmate’s prison cell and “cupped his groin” and, on a separate occasion, “reached her

hand into his gym shorts[ ] and stroked his penis.” Id. at 1044–45. The Ninth Circuit

concluded these allegations supported the plaintiff’s Eighth Amendment claims for

sexual abuse. Id. at 1049–51; see also Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th

Cir. 2000) (holding the law was clearly established because no reasonable prison guard

could have believed it was lawful to “enter the cell of a prisoner . . . unzip his pants,

22 expose himself, demand oral sex, and then, after being refused, grab the prisoner, push

her up against the bars of the cell, and grind his naked penis into her buttocks”).

The Eighth Circuit’s decision in Berry v. Oswalt, 143 F.3d 1127 (8th Cir. 1998),

points in the same direction. In Berry, a female prisoner claimed a male guard “had

attempted to perform nonroutine patdowns on her, had propositioned her for sex, had

intruded upon her while she was not fully dressed, and had subjected her to sexual

comments.” Id. at 1131. After the jury found for the prisoner, the guard challenged

the verdict on appeal and argued the prisoner could not satisfy the objective element

necessary for an Eighth Amendment claim. Id. The Eighth Circuit disagreed, holding

it was “within the jury’s discretion to find that [the guard’s] alleged harassing behavior

was ‘harmful enough,’ to be a violation of the Eighth Amendment.” Id. at 1133. 4

The Seventh Circuit’s decision in Washington v. Hively, 695 F.3d 641 (7th Cir.

2012) (Posner, J.), likewise informs our clearly-established-law analysis. The plaintiff

in Hively, a pretrial detainee in county jail, alleged a guard “spent five to seven seconds

4 In Williams v. Prudden, 67 F. App’x 976, 977–78 (8th Cir. 2003) (unpublished), the Eighth Circuit also held a female inmate sufficiently alleged an Eighth Amendment claim for sexual abuse on facts nearly identical to those at issue here. There, the female inmate alleged a male guard “forcibly ground his pelvis against her, grabbed her breast, verbally demanded sexual favors, made physical sexual advances, and attempted to force himself upon her.” Id. at 977. The court held this conduct was objectively serious to satisfy the Eighth Amendment and also concluded the defendant was not entitled to qualified immunity. Id. at 977–78. Williams is an unpublished out-of-circuit decision entitled to minimal, if any, consideration in our clearly-established-law inquiry. See Cummings, 913 F.3d at 1244. Accordingly, our conclusion the law was clearly established does not turn on Williams. Rather, we cite this decision merely to highlight the Eighth Circuit’s consistent and longstanding position on what type of sexual abuse violates the Eighth Amendment. 23 gratuitously fondling [his] testicles and penis through [his] clothing and then while

strip searching him fondled his nude testicles for two or three seconds.” Id. at 642. 5

The district court granted summary judgment in the guard’s favor on the plaintiff’s

Eighth Amendment claim. Id. But the Seventh Circuit reversed, holding “[a]n

unwanted touching of a person’s private parts, intended to humiliate the victim or

gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights

whether or not the force exerted by the assailant is significant.” Id. at 643.

Defendant argues Hively is inapposite because the decision seeks “to retire the

principle of de minimis uses of force” and “effectively eliminate the objective prong

5 The plaintiff’s status as a pretrial detainee rather than a convicted inmate does not alter our conclusion or otherwise render Hively inapplicable for our purposes. “Pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment. In determining whether [a pretrial detainee’s] rights were violated, however, we apply an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.” Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999). But as we recently explained:

[A]fter Lopez, the Supreme Court said the Eighth Amendment standard for excessive force claims brought by prisoners, which requires that defendants act “maliciously and sadistically to cause harm,” does not apply to Fourteenth Amendment excessive force claims brought by pretrial detainees, which require showing only that the defendants’ use of force was “objectively unreasonable.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 2473, 2475, 192 L.Ed.2d 416 (2015).

Burke v. Regalado, 935 F.3d 960, 991 n.9 (10th Cir. 2019). Thus, following Kingsley, we no longer apply an identical analysis to an excessive force claim regardless of whether the claim arises under the Fourteenth or Eighth Amendment. Nevertheless, because Kingsley only deleted the subjective prong of the Fourteenth Amendment analysis, and only the objective prong of Plaintiff’s Eighth Amendment claim is at issue here, the holding in Hively is still persuasive for our purposes. 24 of the Eighth Amendment excessive force claim, contrary to Supreme Court authority

and other circuit courts.” We disagree. The Seventh Circuit’s opinion simply

recognizes—consistent with Supreme Court precedent—even de minimis uses of force,

particularly in sexual abuse cases, violate the Eighth Amendment when the conduct is

“repugnant to the conscience of mankind.” See Hively, 695 F.3d at 642–43; accord

Hudson, 503 U.S. at 9–10 (“The Eighth Amendment’s prohibition of cruel and unusual

punishments necessarily excludes from constitutional recognition de minimis uses of

physical force, provided that the use of force is not of a sort repugnant to the

conscience of mankind.”) (emphasis added) (internal quotation marks and citation

omitted); cf. Copeland v. Nunan, 250 F.3d 743, 743 (5th Cir. 2001) (unpublished)

(noting “sexual assaults against inmates by prison guards without lasting physical

injury may be actionable under the Eighth Amendment as acts which are offensive to

human dignity”) (internal quotation marks omitted). But nowhere did the court suggest

a plaintiff could state a cognizable claim under the Eighth Amendment without

showing the defendant’s conduct is objectively, sufficiently serious.

The Third and Sixth Circuits have also recognized an inmate’s right to be free

from sexual abuse under the Eighth Amendment was clearly established at the time of

Defendant’s alleged misconduct. Rafferty v. Trumbull Cty., Ohio, 915 F.3d 1087, 1091

(6th Cir. 2019) (holding it was clearly established in 2014 “that sexual abuse of

prisoners could rise to the level of an Eighth Amendment violation” and finding

allegations a prison guard required a female inmate to expose her breasts and

masturbate on several occasions could support an Eighth Amendment claim); Beers-

25 Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (“There is no question that

the plaintiffs’ constitutional right that was violated—the right not to be sexually abused

by a state employee while in confinement—was clearly established at the time of [the

defendant’s] relevant actions.”). 6 Though not directly binding on this court, these

decisions reflect the contours of Plaintiff’s right to be free from sexual abuse were

clearly established at the relevant time.

Given the persuasive authority in the Second, Third, Sixth, Seventh, Eighth, and

Ninth Circuits, we are compelled to conclude Plaintiff’s right to be free from sexual

abuse was clearly established under the Eighth Amendment. Following Crawford I,

no “reasonable [corrections] officer, looking at the entire legal landscape at the time

of the [alleged sexual misconduct], could have interpreted the law as permitting”

Defendant’s actions. Wesby, 138 S. Ct. at 593. If Defendant did not “knowingly

6 Although the court spent most of its time addressing supervisory liability on appeal, Beers-Capitol describes both the sexual assaults and outcome of the plaintiff’s claim against the defendant who committed the sexual abuse in sufficient detail to put a reasonable officer on notice such conduct violated the Eighth Amendment. One of the plaintiffs, a female inmate at a detention facility for juveniles, alleged one of the facility’s employees violated her Eighth Amendment rights when he “cornered [her] in the back office at the unit, prevented her from leaving, grabbed her, kissed her, put his hands down her pants and then tried to pick her up and lick her chest.” Id. at 129. After the jury returned a verdict for the plaintiff on this claim, the plaintiff appealed the district court’s grant of summary judgment for the supervisory defendants. Id. at 125. The supervisory defendants did not dispute the sexual abuse at issue was sufficiently serious to support an Eighth Amendment claim; rather, they argued they did not exhibit the deliberate indifference necessary to support the plaintiffs’ claims against them. Id. at 130. In deciding the “live issue” of whether one of the defendants was entitled to qualified immunity, the court pronounced “[t]here is no question that the plaintiffs’ constitutional right that was violated—the right not to be sexually abused by a state employee while in confinement—was clearly established at the time of [the defendant’s] relevant actions.” Id. at 142 n.15. 26 violate the law” when he sexually abused Plaintiff, which we doubt is the case here,

then he is “plainly incompetent.” See Kisela, 138 S. Ct. at 1152. Either way, qualified

immunity affords Defendant no shelter for the alleged constitutional violations he

committed after August 11, 2015.

Despite the consensus of published circuit court opinions discussed above,

Defendant contends a body of case law in this circuit and decisions in other

jurisdictions demonstrate the asserted right was not clearly established at the time of

the alleged violations. The case law muddying the water, Defendant argues, includes

the Second Circuit’s summary order in Crawford v. Cuomo, 721 F. App’x 57 (2d Cir.

2018) (unpublished) (Crawford II); Ricks v. Shover, 891 F.3d 468 (3d Cir. 2018); Boxer

X v. Harris, 437 F.3d 1107 (11th Cir. 2006); the Fourth Circuit’s per curiam opinion

in Jackson v. Holley, 666 F. App’x 242 (4th Cir. 2016) (unpublished); and four district

court decisions from the District of Colorado. None of these decisions alter our

conclusion the right was clearly established as of August 11, 2015.

First, Defendant’s reliance on the Second Circuit’s decision in Crawford II is

misplaced. There the defendant was entitled to qualified immunity for wrongdoings

he allegedly committed in 2011 because the court did not have the benefit of its holding

in Crawford I and out-of-circuit authorities existing at that time did not clearly

foreshadow the outcome. Crawford II, 721 F. App’x at 59. Given the developments

in circuit authority since 2011, we speculate the outcome in Crawford II may have

been different if the alleged misconduct occurred a few years later. See Hively, 695

27 F.3d at 642–43 (holding materially similar sexual abuse violated the Eighth

Amendment in 2012); Wood, 692 F.3d at 1044–45 (same). Nevertheless, the court

explained “an officer who sexually abuses an inmate following Crawford I will not

prevail by arguing that he did not violate clearly established law.” Crawford II, 721

F. App’x at 59. Crawford II therefore only bolsters our conclusion the law has been

clearly established since August 2015.

In Ricks, the Third Circuit stated “[w]hether sexual abuse can constitute ‘cruel

and unusual punishment’ under the Eighth Amendment is a matter of first impression

in our Court.” 891 F.3d at 471. But as we discussed above, this was not the first time

the Third Circuit recognized the existence of such a right under the Eighth Amendment.

See Beers-Capitol, 256 F.3d at 142 n.15 (“There is no question that the plaintiffs’

constitutional right that was violated—the right not to be sexually abused by a state

employee while in confinement—was clearly established at the time of [the

defendant’s] relevant actions.”). Even assuming arguendo the Third Circuit had not

previously recognized the existence of such a right, the absence of persuasive authority

in this circuit addressing the issue would not tip the scales in Defendant’s favor. See

Morgan, 659 F.3d at 372 (explaining the law is not clearly established “when the

federal circuit courts are split on the issue”). Ricks provides little, if any, succor to

Defendant’s argument.

Turning to judicial authority in the Eleventh Circuit, Defendant’s reliance on

Boxer X is patently misguided. In Boxer X, the Eleventh Circuit “join[ed] other circuits

recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can

28 violate the Eighth Amendment.” 437 F.3d at 1111. The court concluded, however, “a

female prison guard’s solicitation of a male prisoner’s manual masturbation, even

under threat of reprisal, does not present more than de minimis injury” and therefore

did not violate the Eighth Amendment. Id. As the Eleventh Circuit recently

recognized, the Supreme Court’s decision in Wilkins v. Gaddy, 559 U.S. 34, 38–39

(2010), abrogated Boxer X’s conclusion regarding the existence of an Eighth

Amendment violation. Sconiers v. Lockhart, No. 16-16954, 2020 WL 64319, at *7–8

(11th Cir. Jan. 7, 2020). “Although Boxer X’s holding that ‘severe or repetitive sexual

abuse of a prisoner by a prison official can violate the Eighth Amendment,’ remains

good law, Wilkins clarified that courts cannot find excessive force claims not

‘actionable’ because the prisoner did not suffer ‘more than de minimis injury.’” Id. at

*8 (quoting Boxer X, 437 F.3d at 1111). Thus, the portion of Boxer X which Defendant

relies on is no longer good law.

It is true Sconiers did not recognize Boxer X as abrogated until after Defendant’s

conduct and therefore fails to provide adequate notice for our clearly-established-law

determination. McCoy v. Meyers, 887 F.3d 1034, 1053 n.24 (10th Cir. 2018) (“The

dispositive clearly established law inquiry is whether the preexisting law gave adequate

notice that the complained of conduct was unconstitutional.”). Nevertheless, Boxer X

does not alter our conclusion because the case is factually inapposite. Boxer X might

be relevant to our clearly-established-law analysis if Defendant’s alleged sexual

misconduct did not involve any physical contact or touching. Cf. Barney, 143 F.3d at

1311 n.11 (noting allegations of “severe verbal sexual harassment and intimidation”

29 alone are insufficient to state an Eighth Amendment claim and are actionable only in

combination with sexual assaults); Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir.

2002) (per curiam) (affirming dismissal of Eighth Amendment claim where a female

prison employee asked a male prisoner “to have sex with her and to masturbate in front

of her and other female staffers”); but see Rafferty, 915 F.3d at 1095–96 (concluding

allegations corrections officer repeatedly demanded a female prisoner expose her

breasts and masturbate, without any physical contact, were sufficiently serious to

violate the Eighth Amendment). But each allegation of sexual abuse at issue here does,

in fact, involve physical contact or touching. Thus, no reasonable corrections officer

could have concluded based on Boxer X that the sexual abuse Plaintiff suffered did not

violate the Eighth Amendment—especially given the consensus of persuasive circuit

authority to the contrary. 7

Nor does Jackson persuade us that Eighth Amendment law was not clearly

established at the relevant time. Although “an unpublished opinion by a panel of this

court” can be used to show a proposition of law was unsettled, Grissom, 902 F.3d at

1168 (emphasis added), Jackson is an out-of-circuit unpublished decision without

controlling force in the Fourth Circuit. Edmonson v. Eagle Nat’l Bank, 922 F.3d 535,

7 While the distinction between physical and nonphysical sexual abuse is important for purposes of our clearly-established-law analysis, we recognize the Sixth Circuit recently held “sexual abuse of inmates can violate the Eighth Amendment even in the absence of physical touching by a corrections officer.” Rafferty, 915 F.3d at 1095–96. Because Plaintiff alleges Defendant violated her Eighth Amendment right to be free from excessive force in the form of physical sexual abuse, we need not address whether nonphysical sexual abuse of inmates can ever violate the Eighth Amendment. 30 545 n.4 (4th Cir. 2019) (“Unpublished decisions, of course, do not constitute binding

precedent in this Circuit.”). Moreover, the Fourth Circuit has repeatedly held

“unpublished opinions ‘cannot be considered in deciding whether particular conduct

violated clearly established law for purposes of adjudging entitlement to qualified

immunity.’” Feminist Majority Found. v. Hurley, 911 F.3d 674, 706 n.18 (4th Cir.

2018) (quoting Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 542 (4th Cir. 2017)

(declining to consider unpublished Fourth Circuit opinions showing the constitutional

right at issue was not clearly established)).

We are not inclined to accord any weight to Jackson, which is sparely reasoned

and involves allegations of “sexual harassment” less severe than the sexual abuse

alleged here. See Jackson, 666 F. App’x at 244 (summarily concluding prison staff

psychologist did not violate the Eighth Amendment and was entitled to qualified

immunity “[g]iven the lack of circuit authority regarding whether sexual harassment

by prison officials amounts to a constitutional violation”). But even assuming Jackson

“is entitled to any consideration at all in the clearly-established-law analysis,” see

Cummings, 913 F.3d at 1244, the decision does not tip the scales against the numerous

published circuit court opinions showing Defendant’s alleged sexual misconduct

violated clearly established law. Thus, Jackson does not help Defendant either.

Defendant also cites four district court decisions from the District of Colorado

in arguing Plaintiff’s Eighth Amendment right to be free from sexual abuse was not

clearly established at the relevant time. As we have previously remarked, “a district

court’s holding is not controlling in any jurisdiction.” Apodaca, 864 F.3d at 1079; see

31 also al-Kidd, 563 U.S. at 741–42 (explaining a district court decision holding the

defendant’s actions were unconstitutional did not clearly establish the underlying right

on the same ground). Accordingly, “[m]any Courts of Appeals [ ] decline to consider

district court precedent when determining if constitutional rights are clearly established

for purposes of qualified immunity.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).

“Otherwise said, district court decisions—unlike those from the courts of appeals—do

not necessarily settle constitutional standards or prevent repeated claims of qualified

immunity.” Id.

For these reasons, we decline to consider district court opinions in evaluating

the legal landscape for purposes of qualified immunity. But even if we were to

characterize the district court decisions Defendant proffers as “persuasive authority”

for purposes of our clearly-established-law analysis, they are “no match for the Circuit

precedents.” Hope, 536 U.S. at 747. When weighed against the published circuit

precedents, there is still a robust consensus of persuasive authority demonstrating

inmates possess an Eighth Amendment right to be free from sexual abuse of the nature

alleged here.

In sum, persuasive out-of-circuit authority addressing the constitutional right in

question was not divided or otherwise unclear following the Second Circuit’s decision

in Crawford I. Defendant violated clearly established Eighth Amendment law by: (1)

approaching Plaintiff from behind and forcibly pressing his genitals into her buttocks

while lasciviously moaning “mmmmmm” in her ear; (2) purposefully and knowingly

using physical force against Plaintiff by touching her breasts; and (3) forcibly grabbing

32 and fondling Plaintiff’s crotch without her consent. Moreover, based on the consensus

of persuasive authority addressing the right in question, any one of these three uses of

force on its own—regardless of whether Plaintiff’s allegations are viewed in isolation

or as a pattern of pervasive sexual abuse—violated clearly established law. Defendant

does not point to a single decision from this circuit or a published opinion from one of

our sister circuits—and we have found none—shedding doubt on our conclusion today.

Rather, the unanimity among our sister circuits since Crawford I demonstrates the

constitutional question here is “beyond debate.” See Cummings, 913 F.3d at 1239.

4.

As for any sexual misconduct which occurred before August 11, 2015, we

cannot agree with Plaintiff that Defendant’s alleged actions so obviously violated the

Eighth Amendment there is no need for case law clearly establishing the point. Before

the Second Circuit’s decision in Crawford I, it was not beyond debate Defendant’s

alleged conduct satisfied the Eighth Amendment’s objective component. See Boddie,

105 F.3d at 859–61. Contrary to Plaintiff’s argument, the allegations in Boddie are

quite similar to the allegations here. A reasonable officer could therefore have believed

based on Boddie, which was widely followed until recent years, that the sexual abuse

at issue—even if it might subject Defendant to criminal or tort liability—did not violate

the Eighth Amendment. See Cummings, 913 F.3d at 1243 (explaining “the district

court’s reasoning is flawed because it equates a violation of a clear obligation under

state law with a violation of clearly-established federal law”); Dahn v. Amedei, 867

F.3d 1178, 1189 (10th Cir. 2017) (reversing denial of qualified immunity upon finding

33 no violation of clearly-established federal law although the defendants’ conduct could

“very well expose them to tort liability” under state law).

We recognize our parsing of the relevant case law and time period may appear

unduly formalistic considering the despicable nature of Defendant’s alleged

misconduct. But this is the task required of us under the qualified-immunity precedents

we are obligated to follow. And while Plaintiff asks us to reject the current qualified-

immunity framework as unconstitutional, her competent counsel is well-aware it is not

this appellate court’s place to issue such edicts. We, of course, decline to do so here.

Nevertheless, after August 11, 2015, any reasonable corrections officer would

have known Defendant’s alleged conduct violated the Eighth Amendment based upon

the consensus of persuasive circuit authority addressing the right in question. 8 As we

explained above, any constitutional violations Defendant committed before April 10,

2016, fall outside the applicable statute of limitations. Because all actionable

constitutional violations in this case—that is, those occurring within the two-year

limitation period—would necessarily have occurred after August 11, 2015, the law was

clearly established for all relevant purposes here. Accordingly, Defendant is not

entitled to qualified immunity.

AFFIRMED.

8 Although this is not the ground upon which the district court denied Defendant qualified immunity, we can affirm on any ground supported by the record if the parties had a fair opportunity to address the ground—which we conclude they did here. See Thomas v. City of Blanchard, 548 F.3d 1317, 1327 n.2 (10th Cir. 2008). 34