Harden v. Hedgecock

majority opinion

Appellate Case: 25-7052 Document: 31-1 Date Filed: 07/14/2026 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 14, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

MISTY HARDEN; ROBERT HARDEN,

as guardians and next friends of Shaun

Smith, an incapacitated adult;

SAVANAHA WORKS,

Plaintiffs - Appellants,

v. No. 25-7052

B.J. HEDGECOCK, Sheriff of Pushmataha

County, Oklahoma, in his official capacity,

Defendant - Appellee.

Appeal from the United States District Court

for the Eastern District of Oklahoma

(D.C. No. 6:19-CV-00379-EFM)

Robert M. Blakemore (Daniel Smolen with him on the brief), Smolen & Roytman, Tulsa, Oklahoma, for Plaintiffs-Appellants.

Alison B. Levine (Wellon B. Poe with her on the brief), Collins Zorn & Wagner, PLLC, Oklahoma City, Oklahoma, for Defendant-Appellee.

Before HOLMES, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.

TYMKOVICH, Circuit Judge.

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While incarcerated in an Oklahoma county jail, Shaun Smith and Savanaha

Works alleged they were sexually abused by jailers. 1 After release, they filed a civil

rights suit against the jailers for excessive force under 42 U.S.C. § 1983. They also

alleged that the County Sheriff’s policies of understaffing the jail and inadequately

supervising the jailers caused their abuse.

The district court granted summary judgment on the claim against the sheriff,

finding no evidence that the jail was understaffed or that the sheriff was deliberately

indifferent to the risk of unconstitutional sexual abuse. Exercising jurisdiction under

28 U.S.C. § 1291, we AFFIRM. A plaintiff asserting municipal liability based on a

policy that does not facially violate federal law must prove that the municipality

maintained the policy with deliberate indifference. This standard requires the

municipality to have actual or constructive notice that its action or failure to act is

substantially certain to result in an infringement on federal rights. The typical way to

establish notice is through a pattern of similar constitutional or federal-statutory

violations. Neither Smith nor Works has introduced evidence of a pattern of

unconstitutional sexual abuse at the jail. As a result, we find the Sheriff’s Office was

not deliberately indifferent in maintaining its staffing and supervision policies, and

the municipal liability claims therefore fail.

The named plaintiffs, Misty and Robert Harden, sued on Smith’s behalf because he is an incapacitated adult. For simplicity, we refer to Smith directly throughout this opinion without invoking the Hardens.

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I. Background

A. Factual History

1. Inmate Smith and Officer Nichols

Shaun Smith entered the Pushmataha County Jail in February 2016 for pretrial

detention on a burglary charge. On March 3, the Pushmataha County Sheriff’s Office

hired Tamara Nichols as a jailer and assigned her to the night shift. Nichols had

worked at the jail twice before and had been dismissed for various reasons. The

Sheriff’s Office first hired Nichols in 2012, fired her in 2013 for repeatedly missing

work, rehired her in 2014, and fired her again after she tested positive for

methamphetamine. Nichols also had several consensual sexual encounters with two

previous inmates. The encounters typically occurred in the jail laundry room, which

lacks security cameras because it is the room where inmates change from street

clothes into jail clothes.

The Pushmataha County Sheriff at the time, Terry Duncan, was aware of

Nichols’s previous sexual relationships. Though the jail had a sexual misconduct

policy prohibiting any sexual contact between jailers and inmates, Duncan did not

discipline Nichols. At some point in March or April 2016, Smith and Nichols

engaged in a sexual relationship. Smith argues the encounter was nonconsensual. He

says he has an IQ of 57, suffers from mental illness, and has abused drugs in the past.

And he argues Nichols had been using him as a conduit to smuggle drugs into the

prison and used that as leverage to manipulate him into nonconsensual sex.

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A few weeks after the incident, another jailer saw Nichols and Smith

rummaging through inmate property on the jail’s video surveillance system. The jail

then asked the Oklahoma State Bureau of Investigation (OSBI) to investigate

potential theft and mishandling of property. During her interview with an

investigator, Nichols disclosed that she had sex with Smith in the laundry room.

Nichols was arrested the same day, charged with second-degree rape, and terminated

for violating the jail’s sexual misconduct policy.

2. Sheriff Turnover and Reform Efforts

Sheriff Duncan lost his bid for reelection in June 2016 and resigned from

office in July. B.J. Hedgecock took over as sheriff in November and, aware of the

Nichols–Smith incident, immediately worked to improve conditions at the jail.

Sheriff Hedgecock fired several jailers, brought in new staff and officers, replaced

the jail administrator, and asked the Oklahoma Jail Inspection Division to conduct an

inspection and identify deficiencies he could address. He also revamped the sexual

misconduct policy and enforced it. But one policy Hedgecock left in place from the

previous administration was the practice of single staffing the jail during the

overnight shift.

3. Inmate Works and Officer Byers

Savanaha Works was an inmate in the jail from July 2017 to November 2017.

The Sheriff’s Office hired Timothy Byers as a jailer in October 2017 and assigned

him to the overnight shift. After “lights out” on November 13, Byers told Works he

needed her to get some jumpsuits and paper from the laundry room. Works’s role as

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a prison trustee afforded her more freedom of movement and allowed her to perform

work around the prison. Byers followed Works to the laundry room and eventually

told her to “drop them” and touch her toes. App. 441. He then initiated sexual

contact for about five minutes.

The morning after the incident, another inmate reported that Byers removed

Works from her cell and “forced her to have sex with him.” App. 318. Sheriff

Hedgecock contacted OSBI and requested an investigation. Interviews with inmates

produced conflicting stories about the event but confirmed a sexual encounter. A

security camera outside the laundry room partially captured the incident and reveals

Byers standing behind Works for about five minutes and likely engaging in some

kind of sexual contact.

Works claimed that the encounter was coerced, she was too scared to call for

help during the incident, and she did not report it out of fear. When investigators

asked Byers whether the encounter was consensual, he invoked the Fifth Amendment

and declined to answer. Hedgecock fired Byers, but because jail policy prohibits sex

between inmates and jailers regardless of consent, the Sheriff’s Office made no

determination on whether Works consented. Byers was later arrested and charged

with second-degree rape by instrumentation, but the charge was dismissed after

Works refused to cooperate with the prosecution.

B. Procedural History

Smith and Works jointly sued Nichols and Byers under § 1983 for allegedly

subjecting them to excessive force and failing to protect them in violation of the

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Eighth and Fourteenth Amendments. They also brought a municipal liability claim

by suing Sheriff Hedgecock in his official capacity, alleging he and his predecessor

caused the sexual abuse through deliberate indifference by inadequately staffing the

jail and failing to train and supervise the jailers.

Nichols moved to dismiss based on untimely service of process. The district

court granted the motion after Smith and Works did not reply. Byers then moved for

summary judgment based on qualified immunity, arguing there was no underlying

constitutional violation because Works had consented to sex. The district court

denied summary judgment because it determined Works’s consent was a contested

fact issue and a prisoner’s right to be free from nonconsensual sexual contact was

clearly established. Byers appealed, and we affirmed, holding Works had introduced

sufficient evidence of nonconsent to defeat qualified immunity at summary judgment.

Works v. Byers, 128 F.4th 1156, 1163 (10th Cir. 2025).

Sheriff Hedgecock also moved for summary judgment, arguing there were no

grounds for municipal liability because there was no underlying constitutional

violation. Alternatively, he asserted that no official policy caused the alleged

constitutional violations and neither he nor Duncan had acted with deliberate

indifference to an obvious risk of inmate sexual abuse. The district court recounted

its finding that Works had created a material fact issue over her consent and then

determined Smith had done the same regarding his consent. It therefore held, for

summary judgment purposes, that both Smith and Works had been sexually abused in

violation of their constitutional rights. Even so, the court ruled for Sheriff

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Hedgecock based on its findings that the prison was adequately staffed across both

administrations, that both Nichols and Byers were trained on jail rules and state law

governing sexual contact between inmates and jailers, and that neither Duncan nor

Hedgecock had been deliberately indifferent to an obvious risk of unconstitutional

sexual abuse of inmates.

On remand from Works’s appeal, Works and Byers settled and stipulated to

Byers’s dismissal from the case. That rendered the grant of summary judgment for

Sheriff Hedgecock a final order eligible for appellate review. Works and Smith

timely appealed.

II. Discussion

Smith and Works appeal the district court’s denial of their municipal liability

claims based on inadequate jail staffing and failure to supervise. 2 We reject their

arguments because, even assuming their constitutional rights were violated, they

cannot prove that either Sheriff Duncan or Sheriff Hedgecock acted with deliberate

indifference to an obvious risk that jailers would sexually abuse inmates.

“We review a district court’s grant of summary judgment de novo, using the

same standard applied by the district court pursuant to Fed. R. Civ. P. 56(a).” Cillo

v. City of Greenwood Village, 739 F.3d 451, 461 (10th Cir. 2013) (citation modified).

At this stage, “[w]e must ‘view facts in the light most favorable’ to the non-moving

Smith and Works also brought a claim based on failure-to-train, which the district court rejected. They do not argue for reversal of that ruling.

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part[y], . . . resolving all factual disputes and reasonable inferences in [his] favor.”

Id. (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)). “Summary

judgment must be granted if ‘there is no genuine dispute as to any material fact’ and

the moving party is ‘entitled to judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(a)).

A. Municipal Liability Standards

When a plaintiff sues a municipal employee in his official capacity under

§ 1983, the suit is an action “against the county or municipality.” Porro v. Barnes,

624 F.3d 1322, 1328 (10th Cir. 2010). While § 1983 allows claims against municipal

entities for violating federal rights, liability is strictly limited to instances when the

violation stems from “official municipal policy.” Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658, 691 (1978). Thus, on top of an underlying

constitutional or federal statutory violation, a municipal-liability plaintiff must prove

three elements: (1) an official policy or custom, (2) that caused the underlying injury,

and (3) culpable state of mind. Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760, 769 (10th Cir. 2013). When the plaintiff does not claim “the municipal

action itself violated federal law, or directed or authorized the deprivation of federal

rights,” the necessary state of mind is “deliberate indifference.” Bd. of Cnty.

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 406–07 (1997).

A municipality may be liable for an employee’s violation of a person’s federal

rights when the claim is based on a formal policy or custom. Policies meeting this

standard include, among others, “decisions of municipal employees with final

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policymaking authority” and “the deliberately indifferent failure to adequately train

or supervise employees.” Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017)

(citing Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th

Cir. 2010)); see also Timothy M. Tymkovich, Municipal Liability: Tensions in the

Tenth Circuit, 100 Denv. L. Rev. 439, 444–58 (2023) (identifying and categorizing

types of municipal liability claims). “Under Oklahoma law, the sheriff is the final

policymaker for a county jail.” Est. of Crowell ex rel. Boen v. Bd. of Cnty. Comm’rs

of Cnty. of Cleveland, 237 P.3d 134, 142 (Okla. 2010).

“To establish the causation element, the challenged policy must be ‘closely

related to the violation of the plaintiff’s federally protected right.’” Schneider, 717

F.3d at 770 (quoting Martin A. Schwartz, Section 1983 Litigation: Claims &

Defenses § 7.12[B] (2013)). This means the plaintiff must show the policy “was the

‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520

U.S. at 404. One way to meet this burden is by demonstrating the policy facially

violates federal law. See Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).

But when a policy is facially lawful, “the burden of establishing causation . . . is

heavy.” Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1241 (10th

Cir. 2020) (citing Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 405 (“Where a

plaintiff claims the municipality has not directly inflicted an injury, but nonetheless

caused an employee to do so, rigorous standards of culpability and causation must be

applied to ensure that the municipality is not held liable solely for the actions of its

employee.”)).

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“[A] plaintiff seeking to establish municipal liability on the theory that a

facially lawful municipal action has led an employee to violate a plaintiff’s rights

must demonstrate that the municipal action was taken with ‘deliberate indifference’

as to its known or obvious consequences.” Bd. of Cnty. Comm’rs of Bryan Cnty., 520

U.S. at 407 (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). This

requires more than “[a] showing of simple or even heightened negligence.” Id. The

standard “may be satisfied when the municipality has actual or constructive notice

that its action or failure to act is substantially certain to result in a constitutional

violation, and it consciously or deliberately chooses to disregard the risk of harm.”

Hinkle, 962 F.3d at 1241 (quoting Waller v. City and County of Denver, 932 F.3d

1277, 1284 (10th Cir. 2019)). Such notice is typically established by proving

municipal actors were aware of a pattern of constitutional violations but can also be

proven “in a narrow range of circumstances where a violation of federal rights is a

highly predictable or plainly obvious consequence of a municipality’s action or

inaction.” Waller, 932 F.3d at 1284 (citation modified).

B. The Municipal Liability Claims

1. Underlying Constitutional Violations

Works claims Byers violated her Eighth and Fourteenth Amendment rights by

sexually abusing her and failing to protect her while she was imprisoned. A guard’s

sexual abuse of an inmate violates the Constitution because sexual abuse “has no

legitimate penological purpose, and is ‘simply not part of the penalty that criminal

offenders pay for their offenses against society.’” Giron v. Corr. Corp. of Am., 191

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F.3d 1281, 1290 (10th Cir. 1999) (quoting Boddie v. Schnieder, 105 F.3d 857, 861

(2d Cir. 1997)).

We have recognized, however, “that consent is a defense to a constitutional

claim for sexual abuse.” Brown v. Flowers, 974 F.3d 1178, 1186 (10th Cir. 2020)

(citing Graham v. Sheriff of Logan Cnty., 741 F.3d 1118, 1125–26 (10th Cir. 2013)).

That is so because “not all misbehavior by public officials, even egregious

misbehavior, violates the Constitution.” Graham, 741 F.3d at 1125. As we

explained in Graham, the Supreme Court has cautioned us against constitutionalizing

all tortious conduct by government actors. Id. (first citing DeShaney v. Winnebago

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 202 (1989) (“[T]he claim here is based on

the Due Process Clause of the Fourteenth Amendment, which, as we have said many

times, does not transform every tort committed by a state actor into a constitutional

violation.”); and then citing Baker v. McCollan, 443 U.S. 137, 146 (1979) (“Section

1983 imposes liability for violations of rights protected by the Constitution, not for

violations of duties of care arising out of tort law. Remedy for the latter type of

injury must be sought in state court under traditional tort-law principles.”)). As a

result, we found it “proper to treat sexual abuse of prisoners as a species of

excessive-force claim, requiring at least some form of coercion (not necessarily

physical) by the prisoner’s custodians.” Id. at 1126. Importantly, we have also

emphasized that courts should be attentive to the high risk of nonphysical coercion

based on the hierarchical relationship between guards and prisoners, and the

inherently restrictive and disciplinary nature of jails. See id. (“We agree with the

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Ninth Circuit that ‘[t]he power dynamics between prisoners and guards make it

difficult to discern consent from coercion.’” (quoting Wood v. Beauclair, 692 F.3d

1041, 1047 (9th Cir. 2012))); Brown, 974 F.3d at 1186–87 (considering “the

inherently coercive nature of prisons” when analyzing whether a prisoner consented

to sex with a jailer). Nonetheless, “in this circuit, the burden remains on the

plaintiff—not the defendant—to establish that sexual conduct is nonconsensual.”

Works, 128 F.4th at 1162.

Sheriff Hedgecock argues Works’s rights were not violated because she

consented to sex with Byers. As discussed earlier, in a previous appeal we have

already considered Works’s allegations and held “a reasonable jury could accept as

true that Byers used nonconsensual force to invade Works’[s] bodily integrity.” Id.

at 1165. We thereby affirmed the district court’s summary judgment determination

that Byers violated Works’s constitutional rights. We see no reason to revisit that

decision. 3 As a result, Works has established a constitutional violation for purposes

of her municipal liability claim.

Sheriff Hedgecock argues for reconsideration because the Works panel “weighed an adverse inference against Byers due to his having invoked his Fifth Amendment rights” on the consent question. Resp. Br. 42–43. He says the inference “cannot be drawn against [him],” and we should therefore review Works’s consent de novo. Resp. Br. 43. But the Works panel addressed the adverse inference only after it had considered the other evidence and determined a jury could find the encounter was nonconsensual. 128 F.4th at 1164–65. Since the adverse inference was not essential to Works’s holding on the issue of an underlying constitutional violation, we need not revisit the determination that Byers violated Works’s constitutional rights.

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Similarly, Sheriff Hedgecock contends Smith’s rights were not violated

because he consented to sex with Nichols. The district court found the issue of

Smith’s consent was a disputed fact and proceeded to the municipal liability analysis.

Given that finding and the significant factual and legal overlap between Smith’s and

Works’s municipal liability claims, we too assume Smith has established an

underlying constitutional violation and move on to municipal liability.

2. Municipal Liability

Works argues for municipal liability based on Sheriff Hedgecock’s alleged

failures to staff the prison adequately and to supervise Byers. Smith makes a similar

argument based on Sheriff Duncan’s continuation of the allegedly insufficient

staffing policy and inadequate supervision of Nichols. We have recognized both

inadequate jail staffing and failure to supervise as official policies that can support

municipal liability. See Lopez v. LeMaster, 172 F.3d 756, 763 (10th Cir. 1999)

(discussing inadequate jail staffing and failure to supervise in the context of a

municipal failure-to-protect claim); see also Prince v. Sheriff of Carter Cnty., 28

F.4th 1033, 1049–50 (10th Cir. 2022) (denying summary judgment based on evidence

that a jail’s deliberately indifferent failure to retain any medical staff contributed to a

prisoner’s death). Importantly, while jail staffing can be so inadequate that it violates

minimum constitutional standards, see Lopez, 172 F.3d at 763, neither Smith nor

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Works advanced that theory before the district court. 4 Instead, they argued that the

sheriffs’ one-jailer-per-shift policy fell short of Oklahoma state standards for staffing

and allowed Nichols and Byers to perpetrate the alleged sexual abuse. See App. 723–

25.

But evidence of state law violations, even criminal misconduct, does not show

a violation of federal law actionable under § 1983. See Graham, 741 F.3d at 1125–

26 (explaining that § 1983 protects against violations of constitutional rights, not

common torts and criminal misconduct); Fee v. Herndon, 900 F.2d 804, 808 (5th Cir.

1990) (“[T]he Constitution is not a criminal or civil code to be invoked invariably for

the crimes or torts of state educators who act in contravention of the very laws

designed to thwart abusive disciplinarians.”). Since Smith and Works do not claim

that the staffing policy violated federal law itself, they must prove the sheriffs

maintained it with deliberate indifference. That same culpability standard applies to

their failure-to-supervise claim. See Brammer-Hoelter, 602 F.3d at 1190.

The opening brief might be read as arguing that the policy of inadequate staffing is itself unconstitutional, based on citations to Lopez and a statement that “the sexual misconduct is highly probative of Plaintiffs’ claim that the Sheriff’s staffing and supervision was constitutionally infirm.” Opening Br. 23–25. If so, this is a new theory not advanced in the district court or alleged in the complaint. As a result, Smith and Works forfeited the argument, and their failure to argue for plain error on appeal waives the issue. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

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Smith and Works point to no evidence that either Sheriff Duncan or Sheriff

Hedgecock acted with deliberate indifference. 5

Beginning with Sheriff Duncan, Smith argues that Duncan should have known

that inadequate staffing and supervision “was substantially certain to result in a

constitutional violation.” Opening Br. 28. It is true that “deliberate indifference may

be found absent a pattern of unconstitutional behavior if a violation of federal rights

is a ‘highly predictable’ or ‘plainly obvious’ consequence of a municipality’s action

or inaction.” Barney, 143 F.3d at 1307–08 (first quoting Bd. of Cnty. Comm’rs of

Bryan Cnty., 520 U.S at 409; and then citing City of Canton, 489 U.S. at 390 & n.10).

But the “range of circumstances” that can satisfy this standard is “narrow,” id. at

1308, and we have previously rejected the argument that prisoner sexual abuse is a

plainly obvious consequence of having a single jailer on duty, id. at 1309 n.8 (citing

Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir. 1993)).

Smith next argues that if a pattern of prior incidents is necessary, Sheriff

Duncan had notice of a substantial risk that Nichols would sexually abuse inmates

based on her prior sexual misconduct. As we describe above, before the episode with

Smith, the record shows that Nichols had maintained sexual relationships with two

other inmates. Both relationships took place despite the jail’s misconduct policy

prohibiting sex between jailers and inmates. Further, Oklahoma law criminalizes

Since we decide the case based on the lack of deliberate indifference, we express no opinion on whether Smith and Works have met their burden to overcome summary judgment on the other elements of municipal liability.

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such conduct by a jailer as statutory rape. Okla. Stat. tit. 21, § 1111(7) (2015).

Sheriff Duncan was aware of the relationships and even confronted one of the

inmates, who simply laughed and walked away. 6 According to Smith, the fact that

Sheriff Duncan knew Nichols had repeatedly violated prison rules and state law

governing sexual contact between inmates and jailers means he was aware of the risk

of sexual abuse presented by inadequate staffing and supervision.

Smith’s argument fails because even deplorable prior violations of prison rules

and state law do not establish a pattern of infringement against federal rights. See

Bd. of Cnty. Comm’rs of Bryan Cnty., 520 U.S. at 409 (explaining notice ordinarily

requires “showing a pattern of constitutional violations”); cf. Schneider, 717 F.3d at

774 (holding police officers’ consensual sexual relationships with private citizens

they met while on duty, though a violation of department policy, did “not amount to

constitutional violations”). Since our precedent holds that uncoerced sex between a

jailer and inmate is not a constitutional violation, see Brown, 974 F.3d at 1186, Smith

must prove a pattern of nonconsensual sex at the jail to establish that Sheriff Duncan

had notice that his policies would lead to sexual abuse. Smith does not make an

argument that the relationship was nonconsensual.

Smith does not identify any evidence that Sheriff Duncan was aware of Nichols’s prior relationship with a second inmate. While the Sheriff’s Office acknowledged the relationship in its motion for summary judgment, it did not admit Sheriff Duncan knew about the relationship when the Smith–Nichols incident occurred. Nonetheless, the Sheriff’s Office conceded at oral argument that Duncan was aware of both relationships. Oral Arg. at 16:45–16:57,

https://www.ca10.uscourts.gov/sites/ca10/files/oralarguments/25-7052.mp3.

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As we noted above, the line between consent and coercion in this context is

hard to draw, and our concerns about “the power dynamics between prisoners and

guards” have led us to scrutinize claims by jailers that prisoners consented to sex.

Graham, 741 F.3d at 1126 (citation modified); see also Brown, 974 F.3d at 1186.

But we recognized in Graham that a prisoner’s claim of sexual abuse certainly fails

when there is no genuine dispute over consent. 741 F.3d at 1123. The evidence of

Nichols’s conduct with one of the inmates satisfies that standard because the inmate

testified that all the encounters were consensual. App. 877–78; see Brown, 974 F.3d

at 1186–87 (discussing the role of testimony in establishing consent or nonconsent).

Similarly, Nichols claims that her relationship with a second prior inmate was

consensual, and Smith and Works have not identified any contradictory evidence.

Thus, the only prisoner–jailer relationships that Duncan knew about were apparently

consensual and therefore not constitutional violations.

Pointing to our decision in Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008),

Smith suggests that prison officials’ failure to enforce a no-contact policy can, by

itself, prove deliberate indifference. But that misunderstands the case. In Tafoya, a

sheriff implemented a no-contact policy between male officers and female inmates

after a series of known sexual assaults at a prison under his control. Despite the new

policy, a male guard sexually assaulted a female inmate three years later. When the

inmate sued and alleged deliberate indifference, the sheriff pointed to the no-contact

policy as evidence that he had worked to improve conditions and protect inmates

from abuse and was thus not deliberately indifferent. We rejected the sheriff’s

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argument because there was testimony that he had not enforced the policy and knew

that jailers routinely violated it. Instead, we drew an inference of deliberate

indifference based on the sheriff’s notice of the prior assaults and his failure to

enforce his own mitigation measures despite that notice. The pattern of prior

constitutional violations was key to our decision because it showed the sheriff was

aware of a specific risk of more violations and made only a faithless effort at

improvement. But in Sheriff Duncan’s case, the requisite notice is absent. Without

such notice, we cannot infer that his non-enforcement of the jail’s sexual misconduct

policy was undertaken with deliberate indifference.

No doubt, Sheriff Duncan’s lax enforcement of rules and willful disregard for

criminal sexual conduct inside the jail is inexcusable. But evidence that Nichols

engaged in a consensual sexual relationship with a prisoner, while outrageous, does

not indicate a high likelihood that Nichols would also force an inmate into sex

against his will. Since Smith has not introduced evidence of any constitutional

violation prior to his abuse, let alone a pattern of them, he cannot prove that Sheriff

Duncan acted with deliberate indifference.

Thus, his municipal liability claim fails.

Works similarly argues that Sheriff Hedgecock was deliberately indifferent

because he was aware of the prior sexual misconduct between Smith and Nichols and

chose not to change the staffing policy. She also claims that Hedgecock knew that

double-staffing with jailers of each sex would make sexual abuse much less likely.

According to Works, the combination of these facts proves that Hedgecock’s

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persistence in single-staffing the jail was done with deliberate indifference to the risk

of prisoner sexual abuse. We disagree.

Once again, sexual misconduct under prison rules and state law is not evidence

of a constitutional violation. See Graham, 741 F.3d at 1125–26. But even assuming

that Smith was sexually abused would not change the outcome. As we noted earlier,

prisoner sexual abuse is not a plainly obvious consequence of a single-staffing

policy. Barney, 143 F.3d at 1309 n.8 (citing Hovater, 1 F.3d at 1066). So we are

outside the “narrow range of circumstances” where a single prior incident is adequate

to give notice of a policy deficiency. Id. at 1307 (quoting Bd. of Cnty. Comm’rs of

Bryan Cnty., 520 U.S. at 409). Further, the Smith–Nichols incident did not establish

a pattern of similar constitutional violations that would alert Sheriff Hedgecock to a

problem with his staffing policy. See Waller, 932 F.3d at 1287 (“[O]ne prior

incident, even if it was a constitutional violation sufficiently similar to put officials

on notice of a problem, does not describe a pattern of violations.” (quoting Coffey v.

McKinley Cnty., 504 F. App’x 715, 719 (10th Cir. 2012))). Thus, Hedgecock’s

knowledge of that incident did not make it plainly obvious that another, similar

constitutional violation would result from continuing to single-staff the jail. Nor

does his acknowledgment of the potential virtues of double-staffing tip the scales. At

most, it shows Sheriff Hedgecock knew that increased staffing was one possible

mitigation tool among many. And he acted to abate the risk of prisoner abuse,

including through strict enforcement of the sexual misconduct policy. Whatever the

theoretical benefits of double-staffing, absent some notice that single-staffing would

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lead to sexual abuse, Sheriff Hedgecock did not act with deliberate indifference by

choosing to implement different mitigation measures.

Without notice that his staffing and supervisory policies carried a high

probability of causing jailers to sexually abuse prisoners, Sheriff Hedgecock’s

maintenance of those policies was not done with deliberate indifference. Works has

not introduced evidence sufficient to find that Sheriff Hedgecock had the necessary

notice. As a result, her municipal liability claim fails.

III. Conclusion

For the foregoing reasons, we affirm the district court’s judgment.

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25-7052, Harden v. Hedgecock

MORITZ, Circuit Judge, concurring.

I join the majority opinion because it faithfully applies our precedent in

Graham v. Sheriff of Logan County, which implicitly adopted a weak presumption—

but a presumption nevertheless—that inmates consent to sexual encounters with

correctional officers absent “some form of coercion.” 741 F.3d 1118, 1126 (10th Cir.

2013); see also Works v. Byers, 128 F.4th 1156, 1162 (10th Cir. 2025) (explaining

that the burden is on plaintiff, not defendant, “to establish that sexual conduct is

nonconsensual”). But prison, as we have recognized, is an inherently coercive

environment. Works, 128 F.4th at 1160; see also Brown v. Flowers, 974 F.3d 1178,

1187 (10th Cir. 2020). Presuming consent in such an environment legally sanctions

institutional coercion and transforms a plain constitutional violation into a permissive

interaction. Instead, we should adopt a straightforward presumption that inmates do

not consent to sexual activity with prison staff, and that such sexual activity violates

the Eighth Amendment, absent compelling evidence of consent put forth by the

defendant.

At the same time, this appeal is not well-suited to reconsidering Graham:

plaintiffs have not asked us to do so, nor have they advanced the arguments I present

below. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (explaining that our adversarial

system “follow[s] the principle of party presentation,” meaning the parties frame the

issues and the court decides them (quoting United States v. Sineneng-Smith, 590 U.S.

371, 375 (2020))). Nevertheless, this appeal offers an opportunity to evaluate

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Graham both in the municipal-liability context and in light of evolving standards of

decency and relevant case law. See, e.g., Walton v. Nehls, 135 F.4th 1070, 1075 (7th

Cir. 2025) (noting that federal law and “all 50 states have made a prison official’s

sexual conduct with a prisoner a crime”). So I take this opportunity to write

separately, recognizing that this will not be the last time we will be asked to review

cases arising from sexual encounters between inmates and correctional officers.

As the majority explains, Graham held that consent is a defense to inmate

claims of sexual assault asserted under the Eighth Amendment, rejecting the

plaintiff’s argument that prisoners can’t legally consent to sex with their custodians. 1

741 F.3d at 1124. To do so, Graham first surveyed the case law, noting that the Sixth

and Eighth circuits permitted a consent defense, several district courts did not, and

the Ninth Circuit followed a “middle ground” of presuming nonconsent. Id. at 1124–

25. Graham thus found “no consensus in the federal courts on whether, or to what

extent, consent is a defense to an Eighth Amendment claim based on sexual contact

with a prisoner.” Id. at 1125. So, falling back on warnings from the Supreme Court

“against constitutionalizing . . . tortious conduct by government agents,” Graham

This holding, on its own, is unobjectionable. See Wood v. Beauclair, 692 F.3d 1041, 1048 (9th Cir. 2012) (expressing “concern[] about the implications of removing consent as a defense for Eighth Amendment claims” of sexual assault); Walton, 135 F.4th at 1075 (“A per se nonconsent rule would run counter to the Supreme Court’s instruction by broadly and indeed categorically expanding Eighth Amendment liability in one fell swoop—without regard to the unique factual circumstances that could arise in future cases.” (cleaned up)).

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held consent was a defense but declined to adopt a presumption of nonconsent. 2 Id. at

1125–26.

Viewing Graham through the lens of Smith’s municipal-liability claim reveals

some of its limitations. As the majority accurately explains, Smith’s municipalliability claim requires a showing of deliberate indifference, a standard typically

satisfied by showing that officials failed to act in the face of a pattern of

constitutional violations. Here, Smith showed that Sheriff Duncan failed to act in the

face of a pattern of violations of prison policy and state law—violations that bear an

exceedingly close resemblance to the conduct underlying Smith’s claim. But “[s]ince

our precedent holds that uncoerced sex between a jailer and inmate is not a

constitutional violation,” that’s not enough. Maj. Op. 16. Instead, “Smith must prove

a pattern of nonconsensual sex at the jail to establish that Sheriff Duncan had notice

that his policies would lead to sexual abuse.” Id. I agree with the majority that Smith

did not attempt to make such a showing here.

In a concluding aside, Graham opined that “[e]ven were we to adopt the same presumption as the Ninth Circuit, the presumption against consent would be overcome by the overwhelming evidence of consent.” 741 F.3d at 1126. Given this concluding aside, at least one member of this court, in a concurring opinion, read Graham as simply declining to decide whether to adopt a presumption of nonconsent, rather than expressly rejecting it. See Works, 128 F.4th at 1170 (Matheson, J., concurring) (stating that Graham “did not reject” the Ninth Circuit’s presumption). While I appreciate any attempt to soften Graham, I view its concluding language as dicta that unsuccessfully attempts to moderate its actual, unforgiving holding, which presumes—contrary to the reality of prison life— that sexual interactions between inmates and correctional officers are consensual absent “some form of coercion.” 741 F.3d at 1126.

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That leaves us in the untenable position of permitting the municipality to avoid

§ 1983 liability on Smith’s sexual-assault claim even though Sheriff Duncan

concedes knowing about Nichols’s prior and repeated sexual activity with multiple

inmates in violation of prison policy and state law. And it’s worth noting that Sheriff

Duncan not only chose to overlook this repeated sexual activity, he directed the

inmate—not his employee—to knock it off. To be sure, violations of policy and state

law don’t inherently rise to the level of constitutional violations, and I respect the

Supreme Court’s admonitions “against constitutionalizing all tortious conduct by

government actors.” Id. at 11. In the abstract, the idea that consensual sexual

encounters are tortious, but not cruel and unusual, is not necessarily objectionable.

But given the inherently coercive nature of the relationship between correctional

officers and inmates, cases falling into that category are likely to be exceedingly rare.

Freely given, uncoerced consent in the prison environment is highly unlikely because

“prisoners depend on prison officials ‘for nearly everything in their lives—their

safety as well as their access to food, medical care, recreation, and even contact with

family members.’” Walton, 135 F.4th at 1075 (quoting J.K.J. v. Polk County, 960

F.3d 367, 381 (7th Cir. 2020)).

Given these dynamics, the risk of misinterpreting a nonconsensual sexual

encounter as consensual is far higher—and far more damaging to Eighth Amendment

rights—than the alternative, misinterpreting a consensual encounter as

nonconsensual. As Graham itself acknowledged, “‘the power dynamics between

prisoners and guards make it difficult to discern consent from coercion.’” 741 F.3d at

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1126 (quoting Wood, 692 F.3d at 1047). And one can imagine many reasons an

inmate might testify that past sexual encounters were consensual, even though they

were not. In fact, I would hesitate before relying wholesale on inmate testimony to

the exclusion of other evidence. “[F]avors, privileges, or any type of exchange for

sex” can “indicate coercion” as much as “explicit assertions or manifestations of

non[]consent.” Wood, 692 F.3d at 1049; see also Brown, 974 F.3d at 1185

(explaining that our case law “do[es] not delineate between sexual abuse carried out

through physical and nonphysical coercion”). 3

Even assuming consensual and nonconsensual sexual encounters are readily

distinguishable in the prison context, permitting sexual encounters between staff and

inmates creates a prison environment in which constitutional violations in the form of

nonconsensual sex are much more likely. Our current case law nevertheless insulates

a municipality from § 1983 liability when its officials fail to correct, and even

tolerate, that environment. As Smith puts it, Nichols’s prior “sexual misconduct

[wa]s highly probative” of the nature of her conduct toward Smith, and Sheriff

Duncan’s nonplussed response to Nichols’s prior misconduct shows “an abject failure

to supervise.” Aplt. Br. 25–26. Stated plainly, common sense suggests that Sheriff

Duncan’s failure to investigate, discipline, or fire Nichols constituted deliberate

indifference to sexual misconduct. Common sense would in turn suggest that Sheriff

For instance, the Sixth Circuit held consent was a question for the jury when the inmate testified that “all sexual contact was the product of [her] agreeing to have sex” but the evidence showed that the correctional officer provided gifts, privileges, and offers of assistance in the legal process. Hale v. Boyle County, 18 F.4th 845, 855 (6th Cir. 2021).

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Duncan was deliberately indifferent to an increased risk of nonconsensual sexual

activity in his jail, an Eighth Amendment violation. But the law does not permit

municipal liability because all Sheriff Duncan had notice of was presumably

consensual sex, which means he only had notice of a pattern of tortious (or criminal),

rather than unconstitutional, behavior.

Adopting a presumption of nonconsent would go a long way toward rectifying

this mismatch between common sense and legal doctrine. It would acknowledge the

rarity of truly consensual sexual encounters in the prison setting. And it would

address the difficulty of discerning consensual from nonconsensual sexual activity by

placing the burden on prison staff and municipalities to prove consent, thereby

creating an incentive to enforce zero-tolerance policies, in turn curtailing violations

of prisoners’ Eighth Amendment rights.

In this case, starting with the presumption that Nichols’s sexual interactions

with the two other inmates were nonconsensual would mean that Sheriff Duncan was

on notice of a pattern of constitutional violations, rendering his failure to discipline

or terminate Nichols deliberately indifferent. It’s of course possible the evidence here

(or in some future case) could overcome the presumption. For instance, the majority

opines that “[t]he evidence of Nichols’s conduct with one of the inmates”

demonstrates no genuine dispute over consent “because the inmate testified that all

the encounters were consensual.” Maj. Op. 17. In the limited context of this case, I

don’t disagree. But taking a broader perspective, I find it troubling that this

conclusion rests on uncritically accepting inmate testimony elicited approximately

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seven years after the sexual activity at issue and without considering the inmate’s

possible motivations for denying any nonconsensual sex.

A presumption of nonconsent would allay this concern. Without one, prison

administrators in this circuit have no incentive to conduct more reliable,

contemporaneous investigations into whether sexual interaction between correctional

officers and inmates is consensual. Neither state law nor the prison policy at issue

provide such an incentive because neither turn on consent. See Walton, 135 F.4th at

1075 (noting national consensus that consent isn’t a defense to correctional officer

engaging in sexual activity with a prisoner). So administrators like Sheriff Duncan

can simply decline to investigate repeated incidents of sexual interactions, knowing

that if the evidence is left unclear or undeveloped, this court will presume consent

unless the inmate can retrospectively show “some form of coercion” under Graham. 4

741 F.3d at 1126. On the other hand, if we presume for purposes of Eighth

Amendment sexual-assault claims that all sexual activity between inmates and

correctional officers is nonconsensual, prison administrators will be encouraged to

conduct contemporaneous investigations to marshal evidence on consent if they want

to preserve their ability to avoid § 1983 liability for such claims. Contemporaneous

investigations would obviously be more reliable and would have the added benefit of

Of course, it will be even more difficult for inmates asserting municipal liability to prove that previous sexual encounters between correctional officers and other inmates were nonconsensual, a reality this case underscores.

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being conducted by prison officials in a better position to gather relevant materials

than an inmate, including an inmate who is assaulted many years later.

The contemporary legal landscape and evolving standards of decency also

support reconsidering Graham. “Supreme Court precedent is clear that bedrock

Eighth Amendment principles require us to assess a prison official’s conduct against

‘the evolving standards of decency that mark the progress of a maturing society.’”

Walton, 135 F.4th at 1074 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)); see

also Crawford v. Cuomo, 796 F.3d 252, 259–60 (2d Cir. 2015) (relying on evolving

standards of decency to adopt broad definition of sexual assault for Eighth

Amendment claims, such that conduct permitted under 18-year-old precedent “would

flunk its own test today”). We need not look far to find strong indications that our

standard of decency has evolved in this context. As already noted, all 50 states and

the District of Columbia prohibit sexual activity between inmates and correctional

officers regardless of consent. 5 See Walton, 135 F.4th at 1075. “Federal law similarly

makes it a criminal offense for a federal law[-]enforcement officer to ‘knowingly

engage in a sexual act’ with a prisoner, regardless of consent.” Id. at 1075 (cleaned

up) (quoting 18 U.S.C. § 2243(b)). In fact, federal law has only become stricter over

time. Since 1986, when § 2243(b) was first enacted, Congress has increased the

statutory maximum sentence and expanded the definition of individuals in federal

Specifically, the District of Columbia and 27 states “explicitly state that consent is not an affirmative defense,” and “[t]he remaining 2[3] states make it essentially a strict[-]liability offense for prison officials to engage in sexual activity with prisoners, omitting consent as an available affirmative defense.” Walton, 135 F.4th at 1079–81.

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custody. See Violence Against Women and Department of Justice Reauthorization

Act of 2005, Pub. L. No. 109-162, § 1177, 119 Stat. 2960, 3125; Adam Walsh Child

Protection and Safety Act of 2006, Pub. L. No. 109-248, § 207, 120 Stat. 587, 615;

Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, § 1202, 136 Stat. 49,

923–25.

“[T]he takeaway is clear: our country’s legislatures have determined that

sexual activity between prisoners and prison officials is a crime, intolerable conduct

in a civilized society.” Walton, 135 F.4th at 1075. Moreover, this “aligned judgment

of elected officials at the state and national level is consistent with Eighth

Amendment jurisprudence recognizing the inherently vulnerable position of

prisoners, especially in relation to prison officials.” Id. Indeed, in the years since

Graham, the Sixth Circuit has joined the Ninth in presuming nonconsent in this

context. See Hale, 18 F.4th at 854. And the Seventh Circuit, though it was not called

upon to adopt the presumption in the case before it, saw “many reasons for why a

presumption of nonconsent may prove to be the right answer to a difficult question.” 6

Walton, 135 F.4th at 1074.

So I urge this court to consider—albeit in some future case—whether a

presumption of nonconsent is “the right answer.” Id. Without such a presumption,

Graham’s acknowledgment of “the power dynamics between prisoners and guards

Of course, Graham does not stand alone in refusing to presume nonconsent; the Eighth Circuit takes the same approach. See Richardson v. Duncan, 117 F.4th 1025, 1030 (8th Cir. 2024).

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[that] make it difficult to discern consent from coercion” is mere lip service. 741 F.3d

at 1126 (cleaned up) (quoting Wood, 692 F.3d at 1047). To truly recognize the

inherently coercive nature of the prison environment, we should depart from Graham

and adopt a rebuttable presumption of nonconsent for sexual interactions between

correctional officers and inmates.

Harden v. Hedgecock

Authorities cited

Opinion · public domain