Henderson v. Glanz ( 2015 )


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  •                                                                                  FILED
                                                                         United States Court of Appeals
                                          PUBLISH                                Tenth Circuit
    
                          UNITED STATES COURT OF APPEALS                     December 28, 2015
    
                                                                             Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                           Clerk of Court
                             _________________________________
    
    ALESHIA CYRESE HENDERSON,
    
          Plaintiff - Appellee,
    
    v.                                                         No. 14-5077
    
    STANLEY GLANZ, Sheriff of Tulsa
    County, in his individual and official
    capacities; JALYNNA K. MOSER, as
    Administrator of the Estate of Dalean Lynn
    Johnson (Deceased); MICHAEL
    THOMAS,
    
          Defendants - Appellants.
                          _________________________________
    
               APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE NORTHERN DISTRICT OF OKLAHOMA
                        (D.C. No. 4:12-CV-00068-JED-FHM)
                       _________________________________
    
    Guy A. Fortney (Clark O. Brewster and Corbin C. Brewster, with him on the briefs),
    Brewster & De Angelis, Tulsa, Oklahoma, appearing for Appellants.
    
    Daniel E. Smolen (Robert M. Blakemore and Donald E. Smolen, with him on the brief),
    Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, appearing Appellee.
                          _________________________________
    
    Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
                     _________________________________
    
    MATHESON, Circuit Judge.
                       ________________________________
           On September 27, 2011, Aleshia Henderson, a jail inmate, was located in a
    
    holding cell in the medical unit of the David L. Moss Criminal Justice Center in Tulsa,
    
    Oklahoma (the “Jail”). She had been handcuffed and placed in leg restraints. Detention
    
    Officers Dalean Johnson and Michael Thomas were on duty at the medical unit, but they
    
    left to assist with a medical emergency elsewhere. In their absence, Inmate Jessie Earl
    
    Johnson entered Ms. Henderson’s unlocked holding cell and allegedly raped her.1
    
           Ms. Henderson sued the officers in their individual capacities and Tulsa County
    
    Sheriff Stanley Glanz in his individual and official capacities2 (collectively the
    
    “Defendants”) under 42 U.S.C. § 1983. She alleged an Eighth Amendment violation for
    
    deliberate indifference to the risk of assault. Defendants moved for summary judgment
    
    based on qualified immunity. The district court denied the motion because Ms.
    
    Henderson raised genuine issues of material fact regarding Defendants’ awareness of the
    
    risk of assault.
    
           Defendants now seek an interlocutory appeal of the district court’s decision. We
    
    dismiss the appeals of DO Johnson and Sheriff Glanz for lack of jurisdiction because they
    
    ask us to resolve issues of fact and do not turn on discrete questions of law. We have
    
    
           1
             Because Detention Officer Johnson and Inmate Johnson share the same last
    name, the district court referred to the defendant detention officers as DO Johnson and
    DO Thomas and to the inmates present in the medical unit as Inmate Johnson and Inmate
    Williams. We will do the same here. We also note that although DO Johnson is now
    deceased and her estate has been named as a defendant, we will refer to DO Johnson in
    place of her estate for ease of reference.
           2
               Sheriff Glanz did not appeal the district court’s order in his official capacity.
    
    
    
                                                    -2-
    jurisdiction over DO Thomas’s appeal and determine he is entitled to qualified immunity
    
    because Ms. Henderson could not show he violated a clearly established constitutional
    
    right.
    
                                        I. BACKGROUND
    
                                       A. Factual History
    
             The district court relied upon the following facts in its summary judgment order
    
    denying qualified immunity to Defendants.
    
    1. September 27 Incident
    
             Ms. Henderson was booked into the Jail on June 3, 2011. Jail personnel
    
    recognized that she was a special needs inmate because she exhibited mental health
    
    issues. On September 27, 2011, she experienced chest pain and was taken to the Jail’s
    
    medical unit. The medical unit contains one main hallway that houses a desk where
    
    nurses and officers sit. When Ms. Henderson entered the medical unit, DO Johnson and
    
    DO Thomas were on desk duty. Two nurses, Susan Pinson and Charity Chumley, were
    
    also in the medical unit.3
    
             Wearing handcuffs and leg restraints, Ms. Henderson was escorted to the tub
    
    room, a medical unit holding cell located near the desk. 4 The tub room door has a single,
    
    
    
    
             3
             The record does not clearly indicate the nurses’ whereabouts at all times relevant
    to this suit. We include here only the facts regarding the nurses that the district court
    relied upon.
             4
           DO Johnson and Nurse Pinson testified that a third officer escorted Ms.
    Henderson into the room. Ms. Henderson does not contest this fact, though Steven
                                                                               Continued . . .
    
                                                  -3-
    small window that generally remains covered. Jail policy required the tub room to be
    
    locked when it was being used as a holding cell. Nurse Pinson saw Ms. Henderson
    
    placed in the tub room.
    
           Two male inmates were located in the hallway. Inmate Williams was receiving a
    
    breathing treatment. Inmate Johnson was seated in a chair next to the shower room,
    
    which is adjacent to the tub room. Inmate Johnson was in the Jail for assault and battery
    
    on a police officer. The Tulsa County Sheriff’s Office (“TCSO”)5 had identified him as
    
    an “extreme escape risk” and worthy of “extreme caution” when being moved. Aplt.
    
    App. at 718. Despite these cautions, Inmate Johnson was a trustee for the prison kitchen,
    
    which permitted him greater freedom to move about the Jail without an escort officer or
    
    restraints.
    
           At some point before 7:00 p.m., DO Johnson informed a nurse, apparently either
    
    Nurse Pinson or Nurse Chumley, that Ms. Henderson was in the tub room. The nurse
    
    responded, “Oh yeah, that’s right.” Aplt. Add. at 5. DO Johnson took this to mean that
    
    the nurse was ready to see Ms. Henderson, so DO Johnson unlocked the tub room door.
    
    DO Johnson was aware that Inmate Johnson was seated near the tub room and not
    
    
    
    
    Williams, another inmate, testified that DO Johnson escorted Ms. Henderson into the tub
    room.
           5
               TCSO supervised the Jail. Sheriff Glanz is TCSO’s top official.
    
    
    
                                                 -4-
    secured or otherwise restrained.6 She also was aware that Inmate Johnson could see her
    
    unlock the tub room door.
    
          Shortly before 7:00 p.m., a medical emergency was declared in a separate area of
    
    the Jail. When a gurney was requested from the medical unit, DO Thomas left to deliver
    
    it, though having an inmate deliver it would have been permissible under Jail policy.
    
    Nurse Chumley also left the medical unit to respond to the medical emergency.
    
          When Nurse Chumley returned with the gurney holding an injured inmate, DO
    
    Johnson accompanied her and Nurse Pinson around the corner of the hallway and into an
    
    examination room to assist them. At this point, DO Thomas had not returned from
    
    delivering the gurney, so only Inmates Johnson and Williams remained in the hallway.
    
    Neither Inmate Johnson nor Inmate Williams was secured or locked down before DO
    
    Thomas and DO Johnson departed.
    
          Inmate Johnson told Inmate Williams that he intended to make sexual contact with
    
    Ms. Henderson. Inmate Williams observed Inmate Johnson enter the unlocked tub room
    
    and exit approximately ten minutes later. DO Johnson and DO Thomas returned to the
    
    hallway of the medical unit when Inmate Johnson was exiting the tub room. Both
    
    observed the tub room door closing. DO Johnson immediately confronted Inmate
    
    Johnson about being in the tub room. He denied having been there.
    
    
    
          6
             DO Johnson later testified at her deposition that officers are required to lock
    down unsecured inmates who are going to be unsupervised, but that they are not required
    to lock down trustees. She was unaware, however, that Mr. Johnson was a trustee.
    
    
    
                                                -5-
           According to the TCSO investigative report, DO Johnson then entered the tub
    
    room, where the following exchange took place:
    
    
           [DO Johnson] asked Henderson if the male inmate had been in the room.
           Henderson put her head down, shook her head and didn’t talk. Johnson
           then told Henderson she needed to talk and say what had happened.
           Johnson asked Henderson, “Did he touch you?” With this, Henderson
           shook her head yes. Johnson asked “Did he touch your breasts?” and
           Henderson shook her head no. Johnson asked “did he touch your crotch?”
           and Henderson said “Yes.”
    
    Aplt. Add. at 6.
    
           DO Johnson exited the tub room and informed DO Thomas of this exchange. DO
    
    Johnson and DO Thomas told their supervisor, Sergeant James Pirtle, about the incident,
    
    and TCSO initiated its investigation.
    
           Ms. Henderson was taken to a hospital for examination. She had bruising,
    
    swelling, and some mid-line tearing of her vagina that was consistent with forced
    
    intercourse. Inmate Johnson was subsequently charged with rape.7
    
           The TCSO investigation reached the following conclusions regarding the officers’
    
    adherence to Jail policies:
    
           After conducting interviews and reviewing reports, I found policy was
           violated. The Medical Unit is essentially a segregation unit, requiring two
           officers at all times. D.O. Thomas left his post to respond to a medical
    
           7
              The rape charge was ultimately dismissed because Ms. Henderson briefly
    recanted. The district court seemed to question her recanting because (1) Ms. Henderson
    later stated that she recanted because she was fearful for her mother’s safety; (2)
    Defendants’ own expert stated he believed the facts in the record showed that Ms.
    Henderson was raped; and (3) she recanted during an interview by TCSO deputies
    without her counsel present after filing this suit. Aplt. Add. at 7 n.6.
    
    
    
                                               -6-
           emergency when the inmate worker could have accomplished the same
           task. Additionally, D.O. Johnson and D.O. Thomas failed to maintain the
           log book in the Medical Unit, as required by policy. While this is a shared
           responsibility, Johnson knew Henderson was on the unit at some time
           around 17:30 hours and the log never reflected her arrival.
    
           Regarding the alleged sexual assault, two major causal factors were
           identified. First, the tub room was unsecured at the time of the incident. It
           appears this was due to D.O. Johnson failing to relock the door when the
           medical emergency was called. The second was D.O. Thomas failing to
           remain at his assigned post. Thomas left the unit to respond to a medical
           emergency, thereby diminishing the ability of officers to properly supervise
           the unit. When D.O. [Johnson] entered the examination room, as required
           by policy, the main hall of the medical unit was left unsupervised and
           inmates were unsecured.
    
    Aplt. App. at 605.
    
           When later asked how she could be unaware of a risk of assault to Ms. Henderson,
    
    DO Johnson stated, “I don’t know how to answer that.” Aplt. App. at 638.
    
    2. Jail Policies and Previous Incidents of Sexual Misconduct
    
           TCSO policy requires constant double staffing in the medical unit. Despite this
    
    policy, both DO Thomas and DO Johnson testified it was common for one of the two
    
    medical unit officers to temporarily leave the unit to escort inmates or see to other duties.
    
    DO Thomas testified he was not trained on whether or when it was proper to leave the
    
    medical unit to perform other duties.
    
           DO Johnson and DO Thomas underwent 160 hours of training at TCSO’s Jail
    
    Academy. This training included prevention of sexual assaults. TCSO maintains a zero-
    
    tolerance policy against inmate rape and sex-related offenses:
    
           The Tulsa County Sheriff’s Office has a zero tolerance standard for the
           incidence of inmate rape and sex-related offenses and attempts thereof and
           will make every effort to prevent these incidents. The Sheriff’s Office will
    
                                                 -7-
           strictly enforce all federal and state laws regarding inmate sexual
           misconduct, threats of sexual assault or intimidation by providing clear
           definitions of prohibited conduct, establishing uniform methods of the
           prompt reporting and investigation of allegations of sex-related offenses or
           threats, identification of predators, protection of victims and prescribing
           sanctions for substantiated sexual offenses as well as false allegations.
    
    TCSO Policy 20-12.1, found at Aplt. App. at 324.
    
           In 2010, TCSO investigated two violations of its zero-tolerance sexual assault
    
    policy alleged by L.P. and L.S., who were juvenile female inmates housed in the medical
    
    unit. The investigation uncovered allegations that Officer Seth Bowers sexually assaulted
    
    L.P. at the Jail, and TCSO recommended that he be criminally prosecuted. Officer
    
    Bowers also allegedly subjected L.S. to sexually inappropriate behavior. Officer Bowers
    
    resigned because of the investigation.
    
           Former TCSO Officer Cherry Anjorin gave the following testimony in this case
    
    about the medical unit:
    
           [T]here were a lot of reported cases of the nurses having sex in the back
           medical rooms because there is nothing back there. I mean, you can go
           back there and sleep if you want to because there is no one to—and they are
           open to staff and to trustees that are in medical or inmates that come down
           to medical because the medical you had called down 80, 90—60, 70
           inmates for physicals. That’s excluding the people that are housed in
           medical. And so you have inmates just moving around in medical, and it
           was mostly only one person in there so you couldn’t watch all the places.
           So there were inmates coming out of the rooms, the back rooms with
           nurses, and, of course, that’s why I say a lot of nurses were fired.
    
    Aplt. App. at 967.
    
           Other accounts of sexual misconduct in the medical unit included a nurse in the
    
    medical unit allegedly sexually assaulting Inmate D.P., a therapist subjecting female
    
    
    
    
                                                -8-
    inmates to inappropriate conduct, and a nurse having a sexual relationship with a male
    
    inmate.
    
           Former TCSO nurse Robin Mason, who worked at the Jail from March 2009 to
    
    October 2010, testified that there was “a persistent lack of security within the medical
    
    unit” because the inmates and staff were aware of the lack of video surveillance. Aplt.
    
    App. at 994. Officer Anjorin asserted, however, that when an inappropriate relationship
    
    between staff and an inmate was discovered, the staff member was immediately fired,
    
    and detention officers were reminded of that fact at the next staff meeting. All instances
    
    of sexual misconduct referenced by Officer Anjorin and Nurse Mason involved staff-on-
    
    inmate sexual misconduct.
    
           When asked what remedial measures he took to address the allegations of sexual
    
    assault, Sheriff Glanz said he told the staff to be more attentive. When asked whether he
    
    took other measures, he responded, “I can’t specifically say that any that I’m aware of
    
    were made.” Aplt. App. at 852-53.
    
                                     B. Procedural History
    
           Ms. Henderson brought suit under 42 U.S.C. § 1983 against Defendants for
    
    violation of her Eighth Amendment rights. Defendants moved for summary judgment,
    
    arguing they were entitled to qualified immunity because Ms. Henderson could not show
    
    they had violated her constitutional right. Specifically, they contended Ms. Henderson
    
    could not show that Defendants were deliberately indifferent to a substantial risk of harm
    
    to her. See Farmer v. Brennan, 
    511 U.S. 825
    , 847 (1994). The district court determined
    
    
    
    
                                                 -9-
    there existed genuine issues of material fact regarding whether DO Johnson and DO
    
    Thomas were aware of the risk of assault:
    
           Both DO Johnson and DO Thomas were aware that Henderson was in the
           tub room at the time in question and that she was restrained. DO Johnson
           was specifically aware that Inmate Johnson was seated near the tub room
           and unrestrained. She also knew that Inmate Johnson was in a position
           such that he could have observed her unlock the tub room door. DO
           Johnson acknowledges unlocking the tub room door, but states that she
           thought it was locked when she left the main area of the medical unit. She
           did not, however, do anything to lock down or otherwise restrain Inmate
           Johnson despite the fact that TCSO policy mandated that unsecured inmates
           be secured in such situations and the fact that she was fully aware that
           Inmate Johnson would be without the supervision of a Detention Officer.
           Nor did DO Thomas attempt to restrain Inmate Johnson prior to DO
           Thomas’ departure from the medical unit, despite the fact that his departure
           inhibited the ability of DO Johnson to properly supervise the medical unit,
           which requires the presence of two Detention Officers. Neither Detention
           Officer checked on Henderson prior to their discrete departures, or made
           any effort to ensure that the tub room door was locked. When faced with
           these facts, DO Johnson could not explain why she believed no substantial
           risk was posed to Henderson, other than to say that a nurse remained at the
           medical desk—a fact directly controverted by other parts of the record.
           Construing these facts in the light most favorable to Henderson, a
           reasonable trier of fact could infer that that [sic] DO Johnson and DO
           Thomas had knowledge of a substantial risk of harm to Henderson based
           upon the obviousness of the risk and that they failed to take steps to
           alleviate that risk. As such, the Court finds that genuine issues of material
           fact exist as to whether DO Johnson and DO Thomas were deliberately
           indifferent. They are therefore not entitled to qualified immunity on the
           basis that no constitutional violation occurred as a matter of law.
    
    Aplt. Add. at 15-16 (footnotes omitted).
    
           The district court did not make any specific factual determinations regarding
    
    whether DO Johnson or DO Thomas knew that the door to the tub room was locked when
    
    they left the medical unit hallway.
    
    
    
    
                                                - 10 -
           As for Sheriff Glanz, the district court determined he was not entitled to qualified
    
    immunity because there were genuine issues of material fact regarding his awareness of
    
    the risk of assault to Ms. Henderson. The court noted the Jail’s policies regarding sexual
    
    assaults and double staffing in the medical unit. On the other hand, it determined a
    
    reasonable jury could find that the sexual assaults on L.P. and L.S. put Sheriff Glanz on
    
    notice of the risk of assault to inmates due to lack of surveillance and adequate staffing in
    
    the medical unit. Based on this factual dispute regarding the Sheriff’s awareness of the
    
    risk of assault, the district court determined that a reasonable jury could find that Sheriff
    
    Glanz’s lack of response could amount to deliberate indifference under the Eighth
    
    Amendment.
    
           Finally, the district court, having determined there were genuine factual disputes
    
    regarding whether Defendants violated a constitutional right, concluded in a footnote that
    
    this right was clearly established in 2011:
    
           The defendants do not challenge the “clearly established” prong of the
           qualified immunity standard, other than in a single sentence stating that
           “Plaintiff failed to show that the Sheriff violated a clearly established
           right.” (Doc. 82, at 21). Nevertheless, the Court finds that it is clearly
           established that inmates have a right to be free from assaults resulting from
           a jail official’s failure to ensure sufficient staffing and/or supervision of
           inmates.
    
    Aplt. Add. at 16 n.10.
    
                                        II. JURISDICTION
    
           Our first task is to determine whether we have jurisdiction over this interlocutory
    
    appeal. Circuit court appellate jurisdiction is generally limited to final district court
    
    orders, with some limited exceptions. In this section, we discuss the jurisdictional
    
    
                                                  - 11 -
    requirements for interlocutory review of a district court’s denial of qualified immunity
    
    and apply them to each defendant. We conclude this court lacks jurisdiction over DO
    
    Johnson’s and Sheriff Glanz’s appeals but that we have jurisdiction to decide DO
    
    Thomas’s appeal.
    
                                      A. Legal Background
    
           This court has jurisdiction under 28 U.S.C. § 1291 to review “all final decisions of
    
    the district courts of the United States.” Ordinarily, “[o]rders denying summary
    
    judgment are . . . not appealable final orders for purposes of 28 U.S.C. § 1291.”
    
    Roosevelt-Hennix v. Prickett, 
    717 F.3d 751
    , 753 (10th Cir. 2013).
    
           Under the collateral order doctrine, however, a circuit court may review certain
    
    orders as appealable final decisions within the meaning of 28 U.S.C. § 1291 even though
    
    the district court has not entered a final judgment. See Cohen v. Beneficial Indus. Loan
    
    Corp., 
    337 U.S. 541
    , 546 (1949). “To establish jurisdiction under the collateral order
    
    doctrine, defendants must establish that the district court’s order (1) conclusively
    
    determined the disputed question, (2) resolved an important issue completely separate
    
    from the merits of the case, and (3) is effectively unreviewable on appeal from a final
    
    judgment.” Gray v. Baker, 
    399 F.3d 1241
    , 1245 (10th Cir. 2005) (citing Midland Asphalt
    
    Corp. v. United States, 
    489 U.S. 794
    , 799 (1989)).
    
           Applying this standard we have determined “[t]he denial of qualified immunity to
    
    a public official . . . is immediately appealable under the collateral order doctrine to the
    
    extent it involves abstract issues of law.” Fancher v. Barrientos, 
    723 F.3d 1191
    , 1198
    
    (10th Cir. 2013); see also Fogarty v. Gallegos, 
    523 F.3d 1147
    , 1153 (10th Cir. 2008)
    
    
                                                 - 12 -
    (explaining we have interlocutory jurisdiction “over denials of qualified immunity at the
    
    summary judgment stage to the extent they ‘turn[ ] on an issue of law’” (alteration in
    
    original) (quoting Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985))).
    
           On interlocutory appeal, we may review: “‘(1) whether the facts that the district
    
    court ruled a reasonable jury could find would suffice to show a legal violation, or (2)
    
    whether that law was clearly established at the time of the alleged violation.’” Roosevelt-
    
    Hennix, 717 F.3d at 753 (quoting Allstate Sweeping, LLC v. Black, 
    706 F.3d 1261
    , 1267
    
    (10th Cir. 2013)). Under the Supreme Court’s direction in Johnson v. Jones, 
    515 U.S. 304
     (1995), however, this court has no interlocutory jurisdiction to review “whether or
    
    not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” 515 U.S. at 320.
    
           Johnson does not preclude review of all district court orders that deny qualified
    
    immunity on factual grounds. Rather, “[e]ven when the district court concludes issues of
    
    material fact exist, ‘we have reviewed the legal question of whether a defendant’s
    
    conduct, as alleged by the plaintiff, violates clearly established law.’” Holland ex rel.
    
    Overdorff v. Harrington, 
    268 F.3d 1179
    , 1186 (10th Cir. 2001) (quoting Medina v. Cram,
    
    
    252 F.3d 1124
    , 1130 (10th Cir. 2001)). “We need not . . . decline review of a pretrial
    
    order denying summary judgment [in the qualified-immunity context] solely because the
    
    district court says genuine issues of material fact remain; instead, we lack jurisdiction
    
    only if our review would require second-guessing the district court’s determinations of
    
    evidence sufficiency.” Medina, 252 F.3d at 1130.
    
           Thus, if on interlocutory appeal from a denial of qualified immunity a defendant-
    
    appellant’s “argument is limited to a discussion of [his or her] version of the facts and the
    
    
                                                  - 13 -
    inferences that can be drawn therefrom” and presents only “a challenge to the district
    
    court’s conclusion [p]laintiffs presented sufficient evidence to survive summary
    
    judgment,” we lack jurisdiction to consider that argument. Castillo v. Day, 
    790 F.3d 1013
    , 1018 (10th Cir. 2015); see also Gray, 399 F.3d at 1247-48. Conversely, our
    
    jurisdiction “is clear when the defendant does not dispute the facts alleged by the
    
    plaintiff” and raises only legal challenges to the denial of qualified immunity based on
    
    those facts. Farmer v. Perrill, 
    288 F.3d 1254
    , 1258 n.4 (10th Cir. 2002). “[I]f the
    
    defendant does dispute the plaintiff’s allegations[,] ‘the defendant must nonetheless be
    
    willing to concede the most favorable view of the facts to the plaintiff for purposes of the
    
    appeal.’” Id. (quoting Berryman v. Rieger, 
    150 F.3d 561
    , 563 (6th Cir. 1998)).
    
           Even when an appellant challenges the district court’s findings of genuine issues
    
    of material fact, the Supreme Court has recognized two circumstances in which we may
    
    nonetheless exercise interlocutory review. First, “if a district court fails to specify which
    
    factual disputes precluded a grant of summary judgment for qualified immunity, . . . we
    
    ‘may have to undertake a cumbersome review of the record to determine what facts the
    
    district court, in the light most favorable to the nonmoving party, likely assumed.’”
    
    Estate of Booker v. Gomez, 
    745 F.3d 405
    , 410 (10th Cir. 2014) (quoting Johnson, 515
    
    U.S. at 319). “Second, when the ‘version of events’ the district court holds a reasonable
    
    jury could credit ‘is blatantly contradicted by the record,’ we may assess the case based
    
    on our own de novo view of which facts a reasonable jury could accept as true.” Lewis v.
    
    Tripp, 
    604 F.3d 1221
    , 1225-26 (10th Cir. 2010) (quoting Scott v. Harris, 
    550 U.S. 372
    ,
    
    380 (2007)).
    
    
                                                 - 14 -
                                           B. Analysis
    
           We discuss each defendant to determine whether we have jurisdiction to conduct
    
    interlocutory review of his or her appeal.
    
    1. DO Johnson
    
           Appellants’ brief argues we have jurisdiction to consider DO Johnson’s appeal
    
    because “a question of law exists as to whether a jailer’s decision to assist a nurse in the
    
    jail’s medical unit during a medical emergency satisfies the deliberate indifference
    
    requirement to establish liability when that jailer believed [Ms. Henderson] was secure
    
    within a locked holding cell.” Aplt. Br. at 6. This argument does not accept as true Ms.
    
    Henderson’s version of the facts or view the facts in the light most favorable to Ms.
    
    Henderson. Because it instead challenges the district court’s factual determinations, we
    
    lack jurisdiction over DO Johnson’s appeal.
    
           Ms. Henderson asserted in her summary judgment briefing and asserts on appeal
    
    that DO Johnson knew the door to the tub room was unlocked when she left the medical
    
    unit hallway. DO Johnson’s argument8 does not accept as true Ms. Henderson’s version
    
    of this fact. The district court did not make any factual determination about DO
    
    Johnson’s knowledge of the door being unlocked, but it did determine that DO Johnson
    
    was aware of a substantial risk of harm to Ms. Henderson. DO Johnson’s argument is
    
    therefore not based on the facts viewed in the light most favorable to Ms. Henderson.
    
           8
             Although the opening brief was filed on behalf of all Appellants, we refer to a
    particular appellant—in this instance DO Johnson—when the argument in the brief is
    specific to that person.
    
    
    
                                                 - 15 -
           Instead, DO Johnson’s argument presents “a challenge to the district court’s
    
    conclusion [that Ms. Henderson] presented sufficient evidence to survive summary
    
    judgment.” Castillo, 790 F.3d at 1018. We may not consider it on appeal unless the
    
    district court’s view of the facts is blatantly contradicted by the record or the court failed
    
    to specify the facts on which it rested its denial of qualified immunity to DO Johnson.
    
           The district court’s factual determination of DO Johnson’s awareness of the risk of
    
    assault is not clearly contradicted by the record. 9 Further, although the district court did
    
    not say whether a reasonable jury could find that DO Johnson knew the door was
    
    unlocked when she left the hallway of the medical unit, the court determined there was a
    
    genuine issue of material fact about whether DO Johnson was aware of a risk of assault to
    
    Ms. Henderson based on (1) DO Johnson’s failure to secure Inmates Johnson and
    
    Williams before leaving the hallway of the medical unit, (2) her failure to check on Ms.
    
    Henderson before leaving, and (3) her inability to express why there was no risk of
    
    assault to Ms. Henderson. DO Johnson’s argument challenges the district court’s finding
    
    of a disputed issue regarding risk awareness.
    
    
    
    
           9
            Indeed, the record indicates that when DO Johnson was asked whether she knew
    the door to the tub room was unlocked, she answered the following:
    
           Okay. Yes, I unlocked the door. Yes, the medical emergency happened.
           Yes, I went down to the treatment room. It is always my practice to lock
           the door. I didn’t lock the door.
    
    Aplt. App. at 632.
    
    
    
                                                  - 16 -
            Under this circumstance, where the district court specified the facts on which it
    
    based the denial of summary judgment, see Johnson, 515 U.S. at 319, we lack
    
    jurisdiction over DO Johnson’s interlocutory appeal because it “would require second-
    
    guessing the district court’s determinations of evidence sufficiency,” Medina, 252 F.3d at
    
    1130.
    
    2. Sheriff Glanz
    
            Appellants’ brief argues we have jurisdiction to consider Sheriff Glanz’s appeal
    
    because it presents an “abstract question[] of law” regarding whether “a § 1983 claim
    
    based on supervisory liability can be supported absent any allegation that the
    
    defendant/supervisor had any notice of the risk of inmate-on-inmate assault in the
    
    medical unit of the jail, based upon alleged understaffing and alleged insufficient video
    
    surveillance, when there had never been a documented instance of an inmate-on-inmate
    
    assault in the jail’s medical unit’s history.” Aplt. Br. at 6.
    
            This argument does not accept as true Ms. Henderson’s version of the facts or
    
    view the facts in the light most favorable to Ms. Henderson. Because it instead
    
    challenges the district court’s factual determinations about the sheriff’s risk awareness
    
    and does not fall within one of the exceptions to the rule that we may only consider
    
    purely legal questions on appeal from a denial of qualified immunity, we lack jurisdiction
    
    over Sheriff Glanz’s appeal.
    
            The district court determined that Sheriff Glanz was not entitled to qualified
    
    immunity because there were genuine issues of material fact regarding his awareness of
    
    the risk of assault to Ms. Henderson. The court acknowledged the Jail’s policies
    
    
                                                  - 17 -
    regarding sexual assaults and double staffing in the medical unit. But it also noted the
    
    evidence of sexual assaults on L.P. and L.S. and the evidence suggesting there was often
    
    only one officer in the medical unit and no video surveillance. Based on these facts, the
    
    district court determined that a reasonable jury could find Sheriff Glanz had notice of a
    
    risk of assault to inmates and that he was unresponsive to this risk.
    
           Instead of accepting these facts as true or viewing the facts in the light most
    
    favorable to Ms. Henderson, Defendants argue Sheriff Glanz had no notice of a risk of
    
    assault because there had been no documented instances of inmate-on-inmate assault in
    
    the Jail. This argument ignores the district court’s factual determination that staff-on-
    
    inmate assaults gave Sheriff Glanz notice about the risk of other kinds of assault—
    
    including the risk of sexual assault to female inmates by male inmates in the medical
    
    unit—caused by lack of surveillance and adequate staffing. Sheriff Glanz’s argument
    
    poses “a challenge to the district court’s conclusion [that Ms. Henderson] presented
    
    sufficient evidence to survive summary judgment.” Castillo, 790 F.3d at 1018.
    
           We may not consider this challenge on appeal unless the record clearly contradicts
    
    the district court’s factual determinations or the district court failed to identify the factual
    
    disputes on which it rested its decision to deny qualified immunity. Defendants do not
    
    argue that either circumstance arises here. The district court clearly stated, and the record
    
    does not contradict, the facts it relied on in denying qualified immunity to Sheriff Glanz.
    
           We lack jurisdiction over Sheriff Glanz’s interlocutory appeal because it “would
    
    require second-guessing the district court’s determinations of evidence sufficiency.”
    
    Medina, 252 F.3d at 1130.
    
    
                                                  - 18 -
    3. DO Thomas
    
           The district court determined that a reasonable jury could find that DO Thomas
    
    was aware of the risk of assault to Ms. Henderson. But this determination is “blatantly
    
    contradicted by the record.” See Lewis, 604 F.3d at 26 (quoting Scott, 550 U.S. at 380).
    
    The record indicates that, when DO Thomas left to deliver the gurney for the medical
    
    emergency, he knew only that Ms. Henderson was in the tub room and that DO Johnson
    
    was in the medical unit outside the tub room. DO Thomas testified that he believed the
    
    door to the tub room was locked when he left. Ms. Henderson presented no evidence to
    
    the contrary.
    
           These undisputed record facts blatantly contradict the district court’s factual
    
    determination that DO Thomas could have been subjectively aware of a substantial risk
    
    of bodily harm to Ms. Henderson. We therefore have jurisdiction to determine whether,
    
    as a matter of law, DO Thomas violated Ms. Henderson’s clearly established
    
    constitutional right. We turn to that issue next.
    
                                  III. MERITS – DO THOMAS
    
                                     A. Legal Background
    
    1. Section 1983 and Qualified Immunity
    
           Title “42 U.S.C. § 1983 allows an injured person to seek damages against an
    
    individual who has violated his or her federal rights while acting under color of state
    
    law.” Cillo v. City of Greenwood Vill., 
    739 F.3d 451
    , 459 (10th Cir. 2013). “Individual
    
    defendants named in a § 1983 action may raise a defense of qualified immunity,” id. at
    
    460, which “shields public officials . . . from damages actions unless their conduct was
    
    
                                                 - 19 -
    unreasonable in light of clearly established law,” Gann v. Cline, 
    519 F.3d 1090
    , 1092
    
    (10th Cir. 2008) (alteration in original) (quotations omitted). Generally, “when a
    
    defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1)
    
    that the defendant’s actions violated a federal constitutional or statutory right, and, if so,
    
    (2) that the right was clearly established at the time of the defendant’s unlawful conduct.”
    
    Cillo, 739 F.3d at 460; see also Pearson v. Callahan, 
    555 U.S. 223
    , 232 (2009).
    
           To determine whether the right was clearly established, we ask whether “the
    
    contours of a right are sufficiently clear that every reasonable official would have
    
    understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 
    131 S. Ct. 2074
    , 2083 (2011) (alterations and quotations omitted). “Ordinarily, in order for the law
    
    to be clearly established, 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.” Fogarty, 523 F.3d at 1161 (quotations omitted).
    
    “The plaintiff is not required to show, however, that the very act in question previously
    
    was held unlawful . . . to establish an absence of qualified immunity.” Weigel v. Broad,
    
    
    544 F.3d 1143
    , 1153 (10th Cir. 2008) (quotations omitted).
    
    2. Summary Judgment Standard
    
           “We review de novo the district court’s denial of a summary judgment motion
    
    asserting qualified immunity.” McBeth v. Himes, 
    598 F.3d 708
    , 715 (10th Cir. 2010)
    
    (quoting Bowling v. Rector, 
    584 F.3d 956
    , 963 (10th Cir. 2009)). A district “court shall
    
    grant summary judgment if the movant shows that there is no genuine dispute as to any
    
    material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
    
    
                                                  - 20 -
    56(a). “An issue of material fact is genuine if a ‘reasonable jury could return a verdict for
    
    the nonmoving party.’” Henderson v. Inter-Chem Coal Co., 
    41 F.3d 567
    , 569 (10th Cir.
    
    1994) (quoting Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986)), as modified
    
    on denial of reh’g . “In applying this standard, we construe the evidence in the light most
    
    favorable to [the plaintiff] as the nonmoving party.” McBeth, 598 F.3d at 715.
    
           When the defendant has moved for summary judgment based on qualified
    
    immunity, we still view the facts in the light most favorable to the non-moving party and
    
    resolve all factual disputes and reasonable inferences in its favor. See Estate of Booker,
    
    745 F.3d at 411. Unlike most affirmative defenses, however, the plaintiff would bear the
    
    ultimate burden of persuasion at trial to overcome qualified immunity by showing a
    
    violation of clearly established federal law. See id. Thus, at summary judgment, we
    
    must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could
    
    find facts supporting a violation of a constitutional right, which (2) was clearly
    
    established at the time of the defendant’s conduct. See Saucier v. Katz, 
    533 U.S. 194
    ,
    
    201-02 (2001) (asking whether “a violation could be made out on a favorable view of the
    
    parties’ submissions”), overruled in part on other grounds by Pearson v. Callahan, 
    555 U.S. 223
     (2009); see also Riggins v. Goodman, 
    572 F.3d 1101
    , 1107 (10th Cir. 2009)
    
    (“[T]he Supreme Court has held that qualified immunity is proper when the record
    
    plainly demonstrates no constitutional right has been violated, or that the allegations do
    
    not offend clearly established law.”).
    
           “We may, at our discretion, consider the two parts of this test in the sequence we
    
    deem best ‘in light of the circumstances in the particular case at hand.’” Bowling, 584
    
    
                                                 - 21 -
    F.3d at 964 (quoting Pearson, 555 U.S. at 236). If a “plaintiff successfully carries his
    
    two-part burden,” the “defendant bears the burden, as an ordinary movant for summary
    
    judgment, of showing no material issues of fact remain that would defeat the claim of
    
    qualified immunity.” Mick v. Brewer, 
    76 F.3d 1127
    , 1134 (10th Cir. 1996); see also
    
    Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 
    847 F.2d 642
    , 646 (10th Cir. 1988)
    
    (same).
    
                                           B. Analysis
    
           The district court erred in denying DO Thomas summary judgment because Ms.
    
    Henderson did not meet her burden of establishing the second element of qualified
    
    immunity—that any violation of the Eighth Amendment she may have suffered was
    
    based on a clearly established constitutional right.10
    
           “[A] prison official may be held liable under the Eighth Amendment for denying
    
    humane conditions of confinement only if he knows that inmates face a substantial risk of
    
    serious harm and disregards that risk by failing to take reasonable measures to abate it.”
    
    
           10
              Ms. Henderson argues on appeal that Defendants have forfeited their argument
    that any violation of a constitutional right was not clearly established by failing to
    adequately raise this argument in district court. We have recently determined that
    because the plaintiff has the burden at summary judgment to identify a violation of a
    clearly established constitutional right after a defendant asserts qualified immunity, “even
    assuming arguendo that [a defendant] forfeited his appellate arguments based on the
    clearly-established-law prong of the qualified-immunity standard, we would deem
    consideration of these arguments to be an appropriate exercise of our discretion.” Cox v.
    Glanz, 
    800 F.3d 1231
    , 1244 (10th Cir. 2015). Because it was Ms. Henderson’s burden to
    show a clearly established constitutional right, even assuming Defendants did not
    adequately raise this issue in district court, we will consider these arguments to the extent
    we have jurisdiction to do so.
    
    
    
                                                 - 22 -
    Farmer, 511 U.S. at 847; see also Howard v. Waide, 
    534 F.3d 1227
    , 1239 (10th Cir.
    
    2008) (“[P]rison officials who ‘actually knew of a substantial risk to inmate health or
    
    safety may be found free from liability if they responded reasonably to the risk, even if
    
    the harm ultimately was not averted.’”) (quoting Farmer, 511 at 844-45).
    
           Ms. Henderson relies on the district court’s brief footnote analysis concluding it
    
    was clearly established that “inmates have a right to be free from assaults resulting from a
    
    jail official’s failure to ensure sufficient staffing and/or supervision of inmates.” Aplt.
    
    Add. at 16 n.10. Although Supreme Court and Tenth Circuit cases support this general
    
    proposition, see Hovater v. Robinson, 
    1 F.3d 1063
    , 1068 (10th Cir. 1993); Farmer, 511
    
    U.S. at 847, the Supreme Court has admonished “not to define clearly established law at a
    
    high level of generality,” al-Kidd, 131 S. Ct. at 2084. Though “a case directly on point”
    
    is not required, “existing precedent must have placed the statutory or constitutional
    
    question beyond debate.” Stanton v. Sims, 
    134 S. Ct. 3
    , 5 (2013) (per curiam) (quoting
    
    al-Kidd, 131 S. Ct. at 2083).
    
           Ms. Henderson has provided no authority clearly establishing that an officer
    
    violates the Eighth Amendment when that officer, as here with DO Thomas, has no
    
    subjective knowledge of risk of assault to an inmate, leaves to attend to a medical
    
    emergency, and does so believing the inmate is in a locked room under the guard of
    
    another officer. Moreover, although DO Thomas may have violated Jail policy by
    
    leaving the medical unit in the care of only DO Johnson, Ms. Henderson offers no
    
    authority to show this was a clearly established constitutional violation. Because Ms.
    
    
    
    
                                                 - 23 -
    Henderson has not carried her burden to show violation of a clearly established
    
    constitutional right, the district court erred in denying DO Thomas qualified immunity.
    
                                        IV. CONCLUSION
    
           Because DO Johnson’s and Sheriff Glanz’s appeals would require us to second-
    
    guess the district court’s factual determination that the evidence sufficed to show that
    
    they were aware of a risk of assault to Ms. Henderson, we lack jurisdiction to consider
    
    them. Although DO Thomas’s appeal similarly challenged the district court’s factual
    
    determinations, the court relied on a version of the facts that is blatantly contradicted by
    
    the record, and we therefore have jurisdiction to consider his appeal. On the merits of
    
    DO Thomas’s appeal, because Ms. Henderson has not carried her burden of establishing
    
    he violated a constitutional right that was clearly established, we conclude the district
    
    court erred in holding he is not entitled to qualified immunity.
    
           We therefore dismiss the appeals of DO Johnson and Sheriff Glanz for lack of
    
    jurisdiction. We reverse the district court’s denial of qualified immunity to DO Thomas.
    
    
    
    
                                                 - 24 -