## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 08-3517/08-3518

___________ Summer Parrish, *
* Appellee/Cross-Appellant, *
* v. *
* Sheriff Ron Ball, individually and in * his official capacity as Sheriff of Hot * Spring County, *
* Appellant/Cross-Appellee, * Appeals from the United States * District Court for the Western Joseph Stephen Fite, individually and in * District of Arkansas. his official capacity as an officer for Hot * Spring County Sheriff's Department; * Hot Spring County Sheriff's * Department; Hot Spring County, *
* Defendants. *

___________ Submitted: September 22, 2009 Filed: February 10, 2010

___________ Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

___________ BEAM, Circuit Judge. Sheriff Ron Ball of the Hot Spring County Sheriff's Department appeals from the district court's order holding him liabl e in his official capacity under 42 U.S.C. §-2- 1983 for his alleged failure to train Deputy Sheriff Joseph Ste phen Fite. Appellee Summer Parrish brings a cross-appeal challe nging the district court's grant of qualified immunity to Sheriff Ball in his individual capacity. We reverse on the appeal and affirm on the cross-appeal.

I. BACKGROUND

On December 26, 2002, Hot Spring Co unty Sheriff Ron Ball hired Joseph Stephen Fite as a jailer. On March 14, 2003, Sheriff Ball transf erred Fite from his position with the jail to the position of Road Deputy. Fite subse quently resigned his position as Road Deputy to pursue a position with the Arkansas Department of Corrections. Fite's last scheduled day with the Hot Spring County Sheriff's Department was June 11, 2003.

Although Fite operated as a law enfor cement officer, he received littleto no training on how to properly serve in that capacity. In fact, the only training Fite received was one to two days of riding with the deputy whos e job he was hired to fill. Moreover, while Fite did receive a policy ma nual, he was not required to read it, and, in fact, he never actually r ead it. Fite was scheduled to go through the mandatory Law Enforcement Training Academy, but Fite had not yet attended the Academy at the time of the incident giving rise to this di spute. Nonetheless, Sheriff Ball permitted Fite to operate as an almost co mpletely unsupervised Road Deputy.

Approximately one week prior to his la st day, Fite came into contact with Summer Parrish while frequenting the J-Mart, a convenience store at which Parrish was employed. Parrish, who was having some legal troubles, sought Fite's advice in solving those problems. After advising he r, Fite asked Parrish if she would go on a date with him. Parrish declined the offer.-3- Subsequently, Fite learned that Parrishhad several outsta nding warrants for her arrest and that Parrish owedapproximately $800 in fees a nd fines as a result of those warrants. On June 11, 2003, Fite's last day with the Sh eriff's Department, Fite drove to the J-Mart, arrested Parrish, and transported her to the county jail. While en route to the county jail, Fite informed Parrish thathe would not have arrested her if she had simply agreed to go out with him.

Once they arrived at the jail, Fite bet Jason Farr, a jailer, that he could get Parrish to reveal her breasts. In furtheran ce of his scheme, Fite told Parrish that he could get her fines reduced if she woul d show him her breasts. After some trepidation, Parrish eventually complied with the request, raised her shirt, and exposed her breasts. Fite then grabbed Parrish's exposed breast. Although Fite had no formal training on the inappropriatene ss of sexually assaulting a wo man, he admitted at trial that he knew it was wrong to touch a woman's breast without her permission. Fite also stated that he would not ha ve pressured Parrish to expos e herself, nor grabbed her breast, if Sheriff Ball had been at the jail that day.

Fite was subsequently arrested and pledguilty to sexual a ssault in the second degree. Sexual assault in the second degree requires sexua l contact with another by forcible compulsion and is a Class B fel ony. Ark. Code A nn. § 5-14-125(a)(1) & (b)(1). He was sentenced to sixty-m onths' probation and wa s placed on the sex offender registry.

As relevant to this appeal, Parrish brought this § 1983 action against Fite and Sheriff Ball in their individual and official capacities. Prior to trial, Sheriff Ball moved for summary judgment, which the district court granted in part and denied in part. The court granted Sheriff Ball qualified immunity in his individual capacity, but permitted the action against Sheriff Ball in his official capacity.-4- After a one-day bench trial, the districtcourt found Fite liable in his individual capacity. Fite does not appeal this findi ng, and we do not address his individual liability. The district court also held Fite and Sheriff Ball jointly liable in their official capacities as a result of the county's failure to train Fite. Sheriff Ball appeals the finding of official capacity liability for the fa ilure to train Fite. In addition, Parrish brings a cross-appeal challenging the district court's grant of qualified immunity to Sheriff Ball in his individual capacity.

II. DISCUSSION

A. Official Capacity – County Liability

"We review the district court's findi ngs of fact under the clearly erroneous standard and its conclusions of law de novo." Walker v. Maschner , 270 F.3d 573, 576 (8th Cir. 2001). As we have noted, "[a] su it against a public official in his official capacity is actually a suit against the entity fo r which the official is an agent." ElderKeep v. Aksamit , 460 F.3d 979, 986 (8th Cir. 2006) (citing Kentucky v. Graham , 473 U.S. 159, 165 (1985)). Thus, to sustain the action against Sheriff Ball in his official capacity, Parrish must prove that the county " itself caused the constitutional violation at issue." Id. (quotation omitted). The question we are presented with then is whether Hot Spring County itself caused the sexual assault by its alleged failure to train Fite.

In general, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or ag ents" on a respondeat superior theory of liability. Monnell v. New Yo rk Dep't of Soc. Servs. , 436 U.S. 658, 694 (1978). But, a local government may be subject to § 1983 liability for "inade quate training of its employees," City of Canton v. Harris , 489 U.S. 378, 388 (1989), "where (1) the [county's] . . . training practices [were] inadequate; (2) the [county] was deliberately indifferent to the rights of others in adop ting them, such that the 'failure to train reflects a deliberate or conscious choice by [the county]'; and (3) an alleged deficiency-5- in the . . . training procedures actually cau sed the plaintiff's injury." Andrews v. Fowler , 98 F.3d 1069, 1076 (8th Cir. 1996) (quoting City of Canton , 489 U.S. at 389).

Even though the training Fite received was minimal at best, that finding alone will not satisfy a § 1983 claim for failure to train. City of Canton , 489 U.S. at 390-91 ("That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the [local government] . . . .") Instead, to sa tisfy the standard, Parrish must demonstrate

that in light of the duties assigned to specific officers . . . the need for more or different training is so obvi ous, and the inadequacy so likely to result in the violation of constituti onal rights, that the policymakers of the [county] can reasonably be said to have been deliberately indifferent to the need.

Id. at 390; see also Bd. of County Comm'rs v. Brown , 520 U.S. 397, 411 (1997) (noting that to succeed on a claim for municipal liability the "plaintiff must demonstrate that a municipal decision reflect s deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision" (emphasis added)). "In othe r words, [Parrish] must dem onstrate that the [county] 'had notice that its procedures were inadequate and likely to result in a violation of constitutional rights.'" Andrews , 98 F.3d at 1076 (quoting Thelma D. v. Bd. of Educ. , 934 F.2d 929, 934 (8th Cir. 1991)).
Applying this standard, the district court found that "Fite was not aware at the time of the incident that what he did to Parrish was a felony." Parrish v. Fite , No. 06- 6024, 2008 WL 4495704, at *3 (W.D. Ark. Oct. 7, 2008). The district court then found that "[h]ad Fite been more familiar w ith the law . . . he would not have sexually assaulted the Plaintiff." Id. Thus, the court concluded th at since it was Sheriff Ball's decision to permit Fite to ope rate as a law enforcement officer without first training him on the "contents of the law," it was the Sheriff's deliberate and conscious decision-6- not to train him that caused th e incident with Parrish. Id. at *3, 5. As we read the district court's order, the court found that ha d Fite been trained th at sexual assault was a felony, he would not have se xually assaulted Parrish. See id. Thus, the court found that it was the failure to train Fite that if he sexually assaulted a woman, he would be committing a felony, that caused the depriva tion of Parrish's rights. We disagree.

We squarely addressed whether a failureto train officers not to engage in sexually deviant behavior was actionable under § 1983 in Andrews . In Andrews , officers were called to res pond to reports of underage drinking taking place at the plaintiff's residence. Andrews , 98 F.3d at 1073. During thatresponse, an officer took a particular interest in the plaintiff. Id. The chief of police noticed the officer's unusual interest in the plaintiff and warnedhim not to fraternize with minor females while on duty. Id. In addition, the chief of poli ce had previously received a number of complaints regarding an unnamed officer who was impermissi bly fraternizing with females while on duty. Id. Later that same evening, the officer returned to the plaintiff's house to respond to another reported disturbance. Id. During this second response, he invited the plaintiff into hi s police car, took her to his personal car, drove her to an isolated area, and raped her. Id. The plaintiff brought a § 1983 action against the chief of police in hi s official capacity for his failu re to train the officer. Id. at 1074.

Notably, the officer in Andrews had received substantially more training than Fite did. Specifically, the officer had enga ged in two weeks of on-the-job training and had attended the police academy. Id. at 1076-77. But, the plaintiff alleged that the officer was inadequately trained in that he was never instructed not to rape young women. We held that "[i]n light of the regular law enforcement duties of a police officer, we cannot conclude that there wa s a patently obvious need for the city to specifically train officers not to rape young women." Id. at 1077. We also noted, though, that even if the training procedures were "in some manner deficient," the plaintiff could not "demonstrate the close re lationship necessary to conclude that the-7- city's failure to properly train [the officer] caused him to rape [the plaintiff] or even raises a question of fact as to causation." Id. (second alteration in original).

Although Fite received subs tantially less training than did the officer in Andrews , this case, nonetheless, presents a less egregious case of failure to train than was at issue in Andrews . In Andrews , the municipality had constructive notice of a general need to train its officers not to fraternize with women while on duty. Id. at 1073. Moreover, the chief of police had actual notice that the offending officer was taking an interest in the plaintiff. Id. Here, no deputies under Sheriff Ball had ever engaged in sexually impermissible or s uggestive conduct. A nd nothing in Fite's record suggested that he had a proclivity to engage in sexually prurient behavior.

As in Andrews , where we found no patently obvious need to train an officer not to rape young women even in the face of actual knowledge of deviant behavior, we do not believe that there is a patently obvious need to train an officer not to sexually assault women, especially wher e there is no notice at all th at such behavior is likely. An objectively reasonable officer would know that it is impermissible to touch a detainee's sexual organs by fo rcible compulsion. See Barney v. Pulsipher , 143 F.3d 1299, 1308 (10th Cir. 1998) (holding that the c ourt was "not persuaded that a plainly obvious consequence of a deficient traini ng program would be the sexual assault of inmates" and that "[s]pecific or extensive training hardly seems necessary for a jailer to know that sexually assaulti ng inmates is inappropriate behavior"). Moreover, Fite himself acknowledged in his testimony that heknew such behaviorwas wrong. Thus, while it may have been wise to tell officer s not to sexually assault detainees, it is not so obvious that not doing so would result inan officer actually sexually assaulting a female detainee.

Parrish, nonetheless, asserts that even if, as we find today, there is no obvious need to train officers not to sexually assau lt women, that Sheriff Ball's duty to train arises specifically from Arkansas statute. Pursuant to the Arkansas Code, "all law-8- enforcement officers [must] complete a minimum of twenty (20) hours of training concerning sexual assaults." Ark. Code Ann. § 12-9-114( a)(1). Moreover, Arkansas Code provides that such training "shall cove r . . . the laws con cerning sexual assault." Id. § 12-9-114(b)(2). The record reflects thatFite did not receive any such training. Thus, avers Parrish, Sheriff Ball had a duty to train Fite on the laws concerning sexual assault.

Parrish's reliance on this section of th e Arkansas Code is misplaced for two reasons. First, the statute does not create a duty for the county to train its officers on the laws concerning sexual assault. Instead , the statute mandates that the "Arkansas Commission on Law Enforcement Standards and Training" train officers on the laws concerning sexual assault "as a part of th e Basic Police Training Course curriculum." Id. § 12-9-114(a)(1). As the record reflect s, Fite had one y ear within which to complete the Basic Police Training Course. Since Fite was only employed as a Road Deputy for three months, he was not yet re quired to have completed that course. Second, and more fundamentally, even if the statute does imply that the county has a duty to ensure its officers are trained on the laws concerning sexual assault, this obligation does not require thatthe county train its officers not to violate those laws, nor does it require that officers be trained on which violations constitute felonies. Thus, despite Parrish's contentions, the Arkansas Code did not impose a duty on Hot Spring County to train its officers not to sexually assault detainees.

Moreover, even if Sheriff Ba ll's decision not to train Fite on the "contents of the law" was made with a deliberate disregard for other's rights, Parrish still must show that this "deliberate conduct [of] the [county] was the 'moving force' behind the injury alleged." Brown , 520 U.S. at 404 (emphasis omitted). Here, while the district court did make a factual finding regarding the causal link between the county's deliberate misconduct and Parrish's ultimate injury, we find that causal connection too remote as a matter of law to "demonstr ate the close relationship necessary to conclude that the-9- [county's] failure to properly train [Fite] caused him" to sexually assault Parrish. Andrews , 98 F.3d at 1077 (third alteration in original).

We recognize that causation is generally a question of fact. Ricketts v. City of Columbia , 36 F.3d 775, 779 (8th Cir. 1994). Howe ver, where the causal link is too tenuous such that "the question is so free from doubt as to justify taking it from the [fact finder]" we may decide the issue as a matter of law. Id. 779-80; see also Andrews , 98 F.3d at 1077 (finding that summary judgment was appropriate on the causation issue because the plaintiff "could not even raise[] a question of fact as to causation").

The district court found a causal connec tion by holding that since Fite would not have sexually assaulte d Parrish if he knew he was committing a felony, that training on the contents of the law would have prevented the constitutional violation. Parrish , 2008 WL 4495704, at *3. While this finding may establish "but for" causation, it ignores the additional requirement that "'the identified deficiency in [the county's] training program . . . be closely related to the ultimate injury.'" Andrews , 98 F.3d at 1076 (quoting City of Canton , 489 U.S. at 391); see also Martinez v. California , 444 U.S. 277, 285 (1980) (holding that a constitutional violation was "too remote a consequence" of the defendants' action "to hold them responsible under the federal civil rights law"). As we have noted, in cases such as this where the "'plaintiff claims that the [local government] has not di rectly inflicted an injury, but nonetheless has caused an employee to do so,'" the causation standard we apply is a "rigorous" one. Szabla v. City of Brooklyn Park , 486 F.3d 385, 390 (8th Cir. 2007) (en banc) (quoting Brown , 520 U.S. at 405).

Here, even though Fite should have been more properly trained on the "contents of the law," Fite's intentional sexual assau lt of Parrish is too remote a consequence of such a failure to meet the rigorous causation standard necessary to hold the county liable. Indeed, under the district court's findi ngs, even if Fite had been trained that to-10- sexually assault a detainee was "wrong," th e municipality would still be liable for its failure to specifically state that sexual assault constitutes a felony. We see no immediate significant distinction for the purposes of municipal liability between knowing that an act is wrong and knowing that something is so wrong that it is punishable by a year or more of jail time. Since a reasonable officer would know that intentionally sexually assaulting a detainee was inappropriate, and indeed, since Fite himself knew that such conduct was impermi ssible, Parrish has not demonstrated the close relationship necessary to conclude th at the county's failure to train Fite that sexual assault constitutes a felony caused Fite to sexually assault Parrish.

We, therefore, hold that Hot Spring County is not liable for its alleged failure to train Fite. Accordingly, we reverse th e district court on its finding of official capacity liability for failure to train.

B. Individual Capacity – Qualified Immunity

In addition to her allegations of offici al capacity liability, Parrish also alleged that Sheriff Ball was liable in his indivi dual supervisory capacity for his own failure to train and supervise Fite. The districtcourt granted Sheriff Ball summary judgment on this individual capacity claim, finding th at he was entitled to qualified immunity. In her cross-appeal, Parrish challenges this finding.

"We review a district court's qualif ied immunity determination on summary judgment de novo." Davis v. Hall , 375 F.3d 703, 711 (8th Cir. 2004). Pursuant to this standard, we "view the summary judgment reco rd in the light most favorable to the non-moving party, . . . afford[ing] [her] a ll reasonable inferences to be drawn from that record." Id. And, we will affirm the entry of summary judgment resting on qualified immunity "if, viewed through this lense, no genuine issue of material facts exists regarding whether the officials' ac tions, even if unlawful, were objectively reasonable 'in light of the le gal rules that were clearly established at the time [the1 The Supreme Court's recent pronouncement in Iqbal may further restrict the incidents in which the "failure to s upervise" will result in liability. See Iqbal , 129 S. Ct. at 1949 (noting that a government offici al can only be liable for his or her own misconduct); see also Maldonado v. Fontanes , 568 F.3d 263, 274 n.7 (1st Cir. 2009). However, we do not address the extent to which Iqbal so limits our supervisory liability precedent because, even under our prior precedent, Sheriff Ball is entitled to qualified immunity.
-11- actions were] taken.'" Id. (alteration in original) (quoting Anderson v. Creighton , 483 U.S. 635, 639 (1987).

"Because vicarious liability is inapplicab le to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal , 129 S. Ct. 1937, 1948 (2009). Thus, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Id. at 1949. As we have held, a supervising officer can be liable for an inferior o fficer's constitutional violation only "'if he directly participated in the constitutional viola tion, or if his failure to train or supervise the offending actor caused the deprivation.'" 1 Otey v. Marshall , 121 F.3d 1150, 1155 (8th Cir. 1997) (quoting Tilson v. Forrest City Police Dep't , 28 F.3d 802, 806 (8th Cir. 1994)); see also Wever v. Lincoln County , 388 F.3d 601, 606-07 (8th Cir. 2004).

Moreover, a supervising officer will not be individually liable for an otherwise unlawful act if he is entitled to qualified immunity. Qualified immunity shields government officials from liability in their individual capacity so long as the official has not violated "clearly established st atutory or constitutional rights of which a reasonable person would have know n." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). To overcome the defense of qualifie d immunity the plaintiff must show: "(1) the facts, viewed in the light most favor able to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation. " Howard v. Kansas City Police Dep't , 570-12- F.3d 984, 988 (8th Cir. 2009). Recently, the Supreme Court instructed that we are "permitted to exercise [our] sound discreti on in deciding which of the two prongs of the qualified immunity analysis should be a ddressed first in light of the circumstances in the particular case at hand." Pears on v. Callahan , 129 S. Ct. 808, 818 (2009). Because Sheriff Ball's actions do not amount to the violation of a clearly established constitutional right of which a reasonable person would have known, the second prong of the analysis is dispositive of this cas e. We, therefore, address only the second prong of the qualified immunity analysis.

Parrish has not alleged that Sheriff Ba ll ordered, directed , or even suggested that Fite sexually assault Parrish. Thus, Sh eriff Ball's alleged lia bility cannot be based on his direct participation in the constituti onal violation. Instead, the cross-appellant avers that Sheriff Ball's liability arises from his alleged failure to supervise and train Fite. For Sheriff Ball to have violatedParrish's constitutional rights by failing to supervise Fite, Parrish must show that Sheriff Ball:

1) Received notice of a pattern of unconstitutional acts committed by subordinates; 2) Demonstrated deliberate indifference to or tacit authorization of the offensive acts; 3) Failed to take sufficient remedial action; and 4) That such failure proximately caused injury to [Parrish].

Jane Doe A v. Special Sch. Dist. of St. Louis County , 901 F.2d 642, 645 (8th Cir. 1990); see also Otey , 121 F.3d at 1155 (applying this sta ndard to an allegation that a supervisory officer failed to supervise an inferior officer).

The summary judgment record , even when viewed in a light most favorable to Parrish, reveals nothing that suggests that Sheriff Ball received any notice of a pattern of unconstitutional acts committed by any of Sheriff Ball's subordinates. Moreover,-13- pursuant to the parties' stipulation of f acts at summary judgment, the parties agreed that Sheriff Ball had no occasion to know that Fite was about to engage in a sexual assault. Thus, a reasonable officer in Sh eriff Ball's shoes woul d not have known that he needed to more closely supervise Fite. Therefore, to the exte nt that such a failure to supervise may survive Iqbal , Sheriff Ball was, neverthe less, entitled to qualified immunity on such a claim.

We have also noted that a supervisor's failure to train an inferior officer may subject the superior to § 1983 liability in his individual capacity, "where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Otey , 121 F.3d at 1156 (quotation omitted). The plaintiff must also prove that the alleged failure to train "actually caused" the constitutional deprivation. Andrews , 98 F.3d at 1078 (applying the same standard from official capacity failure to train to the individual capacity allegation). Thus, it follows that a supervisory officer is entitled to qualified i mmunity for a § 1983 failure to train action unless a reasonable supervisor would have known that his training program (or lack thereof) was likely to result in the specifi c constitutional violation at issue. See Gold v. City of Miami , 121 F.3d 1442, 1447 (11th Cir. 1997) (noting that a supervisor is entitled to qualified immunity unless "a reas onable person in the supervisor's position would have known that his conduct infringed the constitutional rights of the plaintiff and his conduct was causally related to the constitutiona l violation committed by his subordinate" (quotation omitted)).

As we noted in our analysis above, we find that there is no patently obvious need to train officers not to sexually assault women, nor is there a patently obvious need to train officers that if they sexually assault a woman, they may be charged with a felony. Moreover, a reasonable supe rvisor in Sheriff Ball's position would not know that a failure to specifically train F ite not to sexually assault a woman would cause Fite to engage in thatvery behavior. Thus, the di strict court correctly found that Sheriff Ball is entitled to qualified immunity in his individual capacity.-14- III. CONCLUSION

We affirm the district court's grant of qualified immunity to Sheriff Ball in his individual capacity. But, we reverse the di strict court's finding of official capacity liability for failure to train and remand for further proceedings consistent with this opinion.

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