F I L E D

United States Court of Appeals

Tenth Circuit

APR 14 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TEREZA GONZALES,

Plaintiff - Appellant,

v.

ROBERT MARTINEZ; DOMINICK

GONZALES; JOHN SALAZAR, as the

Sheriff of Huerfano County, Colorado;

HUERFANO COUNTY,

COLORADO,

Defendants - Appellees.

No. 03-1348

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 99-S-1152-OES)

Raphael M. Solot, (Darol C. Biddle, Pueblo, Colorado with him on the briefs), Denver,

Colorado for Plaintiff - Appellant.

David R. Brougham, Hall & Evans, Denver, Colorado for Defendants - Appellees.

Before SEYMOUR, PORFILIO, and HARTZ, Circuit Judges.

PORFILIO, Senior Circuit Judge.
1

In his deposition, Sheriff Salazar stated the jail administrator is in charge of

overseeing and monitoring all operations at the Jail, including the control room, booking,

security, meals, medical needs, and employee paperwork. Although Martinez held the

title, “Major,” and was called Major Bob in the Jail, Sheriff Salazar indicated Martinez

asked for the title. As jail administrator, Major Bob reported directly to Sheriff Salazar,

whose wife is Martinez’s niece. 

2Ms. Gonzales had then served about a week of a 30-day sentence imposed for her

failure to appear in court on a pending charge. Except for when she was sent to Fort

Logan, Colorado, after her father killed her mother, she had never been incarcerated

before.

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In Farmer v. Brennan, 511 U.S. 825, 847 (1994), the Court decided “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.” In this case, the

district court concluded plaintiff failed to meet her burden of establishing a constitutional

violation by presenting evidence jail officials knew of the substantial risk of physical

harm to prisoners in their facility and failed to take reasonable measures to prevent its

recurrence. Concluding the record indicates the contrary, we reverse.

I. Background

On the afternoon of October 13, 1998, Robert Martinez (Major Bob), the

administrator of the Huerfano County Jail in Walsenburg, Colorado,1

 escorted inmate

Tereza Gonzales2 to the Jail commissary after she requested a comb. Inside the small

room, Major Bob used his knife to open a package of combs and then, with the knife in

his hand, blade open, told Ms. Gonzales, “Once you’re in this room, you belong to me.” 
3Ms. Guel filed similar claims against the same parties. After settlement, the

district court dismissed her case. 

4Tereza Gonzales and Dominick Gonzales are not related. However, Dominick

Gonzales is Sheriff Salazar’s son-in-law. To avoid confusion, Dominick Gonzales will

be referred to as “Dominick.”

5At that time, the control room, the command center for Jail security, housed video

cameras to monitor some areas of the Jail. 

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Major Bob sexually assaulted her. On the same afternoon, Amanda Guel,3 another

inmate, was summoned to the control room by Dominick Gonzales,4

 the senior detention

officer, who sexually assaulted her.

That evening, both women handed written statements describing the assaults to

two detention officers who called Huerfano County Sheriff John Salazar. Sheriff Salazar

then went to the jail and instructed the officers on duty to tell Ms. Guel and Ms. Gonzales

he had been notified and would speak to them the next morning. 

Instead, Sheriff Salazar transported Ms. Gonzales to another of her court

appearances and learned she had written a second report on the sexual assault, which she

did not give him. Sheriff Salazar told her to give the statement to her public defender.

Shortly after her return to the women’s pod at the Jail, however, Major Bob,

speaking over the intercom, summoned Ms. Gonzales to the control room.5

 There, Major

Bob grabbed her arm and stated, “Let’s start off where we left off yesterday.” 

Ms. Gonzales told Major Bob “it was bad,” but he “pressed his body” against hers and
6The Magistrate Judge decided Sheriff Salazar was sued in his individual and

personal capacity. 

7Curiously, neither the district court nor defendants have challenged Ms. Gonzales’

designating “Huerfano County” as defendant. Under Colo. Rev. Stat. § 30-11-105, “the

name in which the county shall sue or be sued shall be, ‘The board of county

commissioners of the county of ...........’” “This statutory provision provides the exclusive

(continued...)

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tried to kiss her, before she “pushed [him] away and went back to the pod.” During the

encounter, she stated he did not “have anything unzipped.” 

Although he did not speak with Ms. Gonzales until after the second encounter with

Major Bob and another of her court appearances on October 14th, Sheriff Salazar did

interview Ms. Guel around 1:00 p.m. that day. Later, he met with Ms. Gonzales and her

public defender, who, along with a Deputy District Attorney, instructed her to remain

silent. 

Soon after, the District Attorney called Sheriff Salazar and told him to release

Ms. Guel and Ms. Gonzales immediately. That same afternoon, one of the District

Attorney’s investigators arrived at the Jail. Following her investigation, Major Bob and

Dominick were suspended and later charged with and convicted of the assaults.

Ms. Gonzales filed this action under 42 U.S.C. § 1983, alleging “there were other

incidents of sexual assault at the Huerfano County Jail involving Martinez, Gonzales

and/or others of which Salazar and Martinez were aware, and that Salazar and Martinez

failed to take those steps necessary to assure the safety of the plaintiff.” As defendants,

she named Sheriff Salazar,6 Huerfano County,7 Martinez, and Dominick Gonzales. Ms.
7

(...continued)

method by which jurisdiction over a county can be obtained. An action attempted to be

brought under any other designation is a nullity, and no valid judgment can enter in such a

case.” Calahan v. Jefferson County, 429 P.2d 301, 302 (Colo. 1967). Were we to

overlook this jurisdictional flaw, we are still guided by Bristol v. Bd. of County Comm’rs

of Clear Creek, 312 F.3d 1213, 1215 (10th Cir. 2002) (under the Colorado constitution,

the County Sheriff is a distinct position, separate from the Board of County

Commissioners). The only claims Plaintiff made against the County were based on a

faulty premise. She asserted the County owed her a duty “to employ competent law

enforcement officers and to supervise the conduct of its sheriff and Chief Jail

Administrator.” That is not a valid premise under Colorado law. Id. Had Plaintiff

claimed the Sheriff set official policy of the County or was following policy established

by the County in the operation of the jail, we might have to reach a different conclusion. 

See id. at 1221 (“counties can be held liable for the misdeeds of Sheriffs and their

employees when the Sheriff is held to set ‘official policy’ for the county.”). Yet, whether

because of the plain language of the statute or the Plaintiff’s failure to state a valid claim,

the action cannot lie against Huerfano County.

8Her second claim for negligent supervision against Sheriff Salazar and Huerfano

County is subsumed within the first. Her third claim for assault and battery against Major

Bob and Dominick, was dismissed with prejudice after the district court dismissed the

§ 1983 and negligent supervision claims. 

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Gonzales alleged defendants knew of the danger Major Bob and Dominick posed and

failed to protect her in violation of her Eighth Amendment rights.8

 Ms. Gonzales also

alleged Huerfano County owed a duty to employ competent law enforcement officers and

to supervise their conduct to prevent violations of prisoners’ civil rights. 

Sheriff Salazar and Huerfano County moved for summary judgment alleging the

undisputed facts sustained no constitutional violation and the doctrine of qualified

immunity barred any such claim against Sheriff Salazar. The Magistrate Judge

recommended granting the motion. 
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In an oral order from the bench, the district court embraced the Magistrate Judge’s

order in its entirety, holding that while the sexual assaults were undisputed, Sheriff

Salazar’s failure to prevent harm to Ms. Gonzales did not amount to deliberate

indifference. In response to prior incidents of sexual misconduct and violence at the Jail,

the court summarily concluded without citing any specific evidence, “Sheriff Salazar took

appropriate remedial measures at the time” but observed, Sheriff Salazar “was unable to

do anything” after the October 13th sexual assaults because Ms. Gonzales “refused to

discuss the matter with him on one occasion . . . on two occasions.” Ms. Gonzales seeks

de novo review of that judgment.

II. Prior Incidents Establishing Notice

To meet the Farmer test that Sheriff Salazar knew of and disregarded “an

excessive risk to inmate health and safety,” 511 U.S. at 837, Ms. Gonzales presented a

series of incidents both preceding and following her assault to establish a genuine issue of

material fact that the sheriff was both “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and [] must also draw the inference.”

Id. Under this test, “an Eighth Amendment claimant need not show that a prison official

acted or failed to act believing that harm actually would befall an inmate; it is enough that

the official acted or failed to act despite his knowledge of a substantial risk of serious

harm.” Id. at 842 (emphasis added). “Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact subject to demonstration in the usual
9Sheriff Salazar stated “Mike” although the record consistently refers to Sgt. Paul

Zudar.

10Mr. Maldonado also reported he was beaten again on October 31, 1997, without

any intervention by guards. In his deposition, Sheriff Salazar did not remember whether

the investigation of these complaints established any fault on Dominick’s part but

believed Dominick was not disciplined. Mr. Maldonado’s attorney apparently did not

pursue an initial intent to sue notice.

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ways, including inference from circumstantial evidence.” Id. (emphasis added). To meet

this test, Ms. Gonzales presented a series of incidents at the Jail, which, she contends,

cumulatively establishes Sheriff Salazar failed to protect her “despite his knowledge of a

substantial risk of harm.” Id.

First, Ms. Gonzales presented evidence, including Sheriff Salazar’s testimony, he

had not conducted any employee performance evaluations since 1994, only occasionally

visited the jail, and left the investigation of all problems at the jail to his designee,

Sergeant Paul Zudar. Second, given this supervisory style, Ms. Gonzales set out a series

of specific incidents which occurred from August 1997 to October 1997. 

Explaining his response to those events, Sheriff Salazar stated although

Major Bob, the Jail Administrator, “was concerned about the allegations, [] he didn’t

want to take the step forward to investigate, so I assigned a Sergeant Mike9 Zudar.” In

one incident on August 7, 1997, inmate Brent Maldonado alleged he was beaten up in Cpod by fellow inmates who were drinking vodka; Dominick was in the control room and

failed to respond to his screams.10 On August 10, 1997, Detention Officer Ruiz filed an

incident report stating he saw inmates from C-pod sitting in the control room. He noted
11Sheriff Salazar agreed a third woman, Barbara Garcia, verified Ms. Flecksteiner’s

report as well, although her statement is not in the record.

12She wrote, “[t]he other women will not back me up - they will probably ostracize

me for this. Frankly, I don’t care. I would like to do my time in peace & be left alone. I

see no reason for our privileges to be up to the whims of Sgt. Gonzales. . . .”

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some inmates had bloodshot eyes and appeared to know how to run the controls and

“bragged about knowing how to run the controls.” The inmates remained in the control

room for several hours before returning to their pod. He stated, “I overlooked the

situation because I was new to the job and did not know what to do.” 

On October 14, 1997, Sergeant Montoya, a female deputy, received a report that

Dominick entered the women’s pod and exposed himself to inmates. Documenting their

complaints about the event, inmates Rebecca Flecksteiner11 and Josette Montez separately

wrote statements describing a setting of lax security in which Dominick would call female

inmates to the meds room and taunt them over the intercom operated in the control room

to “show us your tits.” Under his control, Ms. Flecksteiner complained Dominick

rewarded female inmates for participating or punished them for objecting.12 Asked about

these reports, Sheriff Salazar stated he did not believe them: “[t]he majority of the

inmates that we have in our facility would conjure up and work with other inmates to

disbelieve – or discredit one officer, because they are strict on rules.” When the matter

was referred for investigation, Sergeant Zudar testified he directly questioned Dominick

about the report and credited his direct eye contact and calm over the inmates’ reports. 

No discipline followed.
13Ms. Noga is also called Stella Duran in the depositions.

14Miguel Duran was a sheriff’s deputy at the Jail before he was seriously injured

while driving a Sheriff’s vehicle in a storm. 

15The bouncers described Dominick as “very big” and were scared by his threats to

injure them. 

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Sometime in 1997, Stella Noga,13 who had served time at the Jail, met with 

Huerfano County Commissioner Charles Montoya at his office and complained of sexual

and drug-related activities at the Jail, as well as her inability to get her prescription drugs. 

Commissioner Montoya testified he met with Sheriff Salazar who “thought maybe it was

a personal vendetta, or to that effect. Because Stella was kind of – I don’t know how you

would describe her, but I think kind of an arrogant little girl. And she did occasionally

cause problems, or whatever.” Commissioner Montoya explained Ms. Noga’s brother,

Miguel Duran,14 is married to his daughter, and he stated, “I know she was a

troublemaker.” 

On October 16, 1997, police officers in Pueblo, Colorado, arrested Dominick, who

was hostile and combative after being removed from a local bar for harassing female

dancers. Finally restrained with pepper spray, Dominick told officers he was a “cop in

Walsenburg” and threatened injury.15 On October 21, 1997, Sergeant Zudar placed a

written warning in Dominick’s file for his violating “certain policies . . . one having

inmates in the control room,” although the additional allegations of sexual misconduct

were found unsubstantiated. However, because of the Pueblo arrest, Sergeant Zudar
16She described his angrily answering her call after her “blood pressure shot up,”

saying “he had a bone to pick with me. Didn’t I know Bob tells him everything I tell him

(Bob) & who they have in the control room is their business? (Referring to the Monday

night party.)” She wrote that Dominick “seems to enjoy” antagonizing inmates. “I’m

afraid someone, someday, is going to hurt that boy badly.”

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demoted Dominick from sergeant to deputy and placed him on probation for six months,

explaining Dominick had “basically been a good officer up until the Pueblo incident and .

. . him having inmates in the control room.” 

Ms. Gonzales further presented evidence of two incidents between October 1997

and October 1998, when the present sexual assaults occurred, to demonstrate the unsafe

atmosphere remained at the Jail. First, she listed an incident report in which an inmate

wrote that Dominick punched him after he had been restrained by other officers who had

left him alone with Dominick. Second, in April 1998, inmate Denise Tefteller wrote a

letter to Sheriff Salazar describing Dominick’s mercurial temperament and arbitrary

system of rewards and punishments based on his mood.16 In an affidavit, Ms. Tefteller

stated that when she was released, she gave her letter to Major Bob and asked him to give

it to Sheriff Salazar. In 2000, Sheriff Salazar responded to this affidavit in Ms. Guel’s

civil action, stating he never saw the letter before his attorney handed it to him at that

time. He attested that prior to the October 1998 incidents, “I had never received any

substantiated information concerning prior sexual improprieties by these Detention

Officers.” (emphasis added).
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Finally, Ms. Gonzales described in detail Major Bob’s sexual assault on

October 13, 1998, accompanied by the investigative report of the District Attorney’s

Office. She also included Sheriff Salazar’s incident report in which he noted the on duty

officer’s concern the two female inmates’ complaints involved Major Bob and Dominick

and the “females were showing signs of emotion as far as being upset. I then read the

other statement which will be done on a separate report. I then instructed Officer sierra

[sic] to inform these females that he notified me and that the statements they provided

would be Investigated [sic]” and that he would speak to them in the morning. Sheriff

Salazar described interviewing Ms. Guel and his meeting with Ms. Gonzales and her

public defenders. At that time, approximately 2:30 p.m., shortly after Ms. Gonzales’

second encounter with Major Bob, Sheriff Salazar wrote in his report Ms. Gonzales, on

the advice of counsel, refused to speak with him, telling him he had her statement from

the night before. Shortly after, he acknowledged the District Attorney’s order to release

both women. 

The Magistrate Judge rejected all of Ms. Gonzales’ evidence of prior events either

as insubstantial and unsubstantiated or disconnected from any specific evidence that

Major Bob, the jail administrator, posed a substantial risk; that is, the generalized

atmosphere of the Jail would not suffice. Instead, “Salazar’s deliberate indifference must

be tied specifically to acts of [Major Bob] of which Salazar was aware.” Hence, to prove

Sheriff Salazar’s deliberate indifference, the Magistrate Judge, citing Hovater v.
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Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993), and Lopez v. LeMaster,172 F.3d 756, 761

(10th Cir. 1999), asserted “plaintiff must present evidence that would establish that

Salazar had knowledge of facts that would lead to an inference that [Major Bob], not

other deputies, presented a ‘substantial risk of harm.’” Embracing this recommendation,

the district court exonerated Sheriff Salazar from any constitutional consequence, finding,

because Ms. Gonzales refused to speak with him, “he was unable to do anything.” The

court further found Sheriff Salazar “took appropriate remedial measures at the time” in

addressing past conduct, evidencing “his policy to take appropriate remedial measures

when anything was reported to him, including investigation and further disciplinary action

where appropriate.” In granting the motion for summary judgment, the court concluded

Ms. Gonzales failed to present a triable issue of fact Sheriff Salazar knew Major Bob

posed a substantial risk of harm to her. 

III. Summary Judgment

The district court adopted the Magistrate Judge’s order denying Ms. Gonzales’

Eighth Amendment claim on the merits. Having found no constitutional violation in the

first instance, neither the Magistrate Judge nor the district court ruled on the issue of

qualified immunity; thus, we do not review summary judgment here “somewhat

differently than other summary judgment rulings.” Hovater, 1 F.3d at1066, citing

Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). Rather, we review

the district court's grant of summary judgment on the merits of Ms. Gonzales’ Eighth
17This standard of review does not ignore the fact that, in the end, defendant still

bears the usual summary judgment burden of showing that no material facts remain in

dispute that would defeat the qualified immunity defense. Farmer v. Perrill, 288 F.3d

1254, 1259 (10th Cir. 2002).

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Amendment claim de novo, applying the same legal standard used by the district court

under Fed. R. Civ. P. 56(c) and viewing the evidence in the light most favorable to the

nonmovant. Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir. 1997).

Summary judgment is appropriate only if there is no genuine issue as to any material fact,

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Thus,

we ask the “threshold question: Taken in the light most favorable to the party asserting

the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001).17

IV. Deliberate Indifference

We preface each foray into this difficult area (“Prisons are necessarily dangerous

places; they house society’s most antisocial and violent people in close proximity with

one another.” Farmer, 511 U.S. at 858 (Thomas, J., dissenting)) with the Eighth

Amendment proviso requiring “prison officials to ‘provide humane conditions of

confinement,’ which includes taking ‘reasonable measures to guarantee the safety of

inmates.’” Giron v. Corr. Corp. of America, 191 F.3d 1281, 1285 (10th Cir. 1999),

quoting Farmer, 511 U.S. at 832; see also, Barney v. Pulsipher, 143 F.3d 1299, 1310

(10th Cir. 1998). Thus, in a claim that officials failed to prevent harm, an inmate must
- 14 -

show, first, “she is incarcerated under conditions posing a substantial risk of serious

harm,” and, second, that officials had a “sufficiently culpable state of mind.” Farmer,

511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “Thus, the

deliberate indifference standard in a prison-conditions case is a ‘subjective’ and not an

‘objective’ requirement. That is, a prison official is liable only if the ‘official knows of

and disregards an excessive risk to inmate health and safety.’ It is not enough to establish

that the official should have known of the risk of harm.” Pulsipher, 143 F.3d at 1310

(quoting Farmer, 511 U.S. at 837). 

Further, as stated in Pulsipher, a plaintiff’s uncontroverted claim of “deprivations

resulting from sexual assault” are “sufficiently serious to constitute a violation under the

Eighth Amendment.” Id. In both Hovater and Pulsipher, however, a constitutional

violation was not found because the only proof of prison officials’ knowledge of a

substantial risk of serious harm to a female inmate and failure to protect was predicated

on the existence of a per se violation of a written jail policy. In Hovater, the policy

dictated that a male guard never enter a woman’s cell alone, except in an emergency, 1

F.3d at 1068; and, in Pulsipher, two jailers were required to be present when female

prisoners were removed from their cell, 143 F.3d at 1310-1311. We explicitly stated in

Hovater, however, “[h]ad Sheriff Hill possessed information that Mr. Robinson as an

individual posed a threat to the safety of female inmates, our decision would be

different.” 1 F.3d at 1068.
18 Indeed, in 2002 deposition testimony submitted in Defendants’ supplemental

appendix, Sheriff Salazar described instituting written policies and procedures, including

hiring additional female staff and new hiring practices, to address a 2001 incident

involving four counts of sexual assault of a female inmate by a male detention officer in

the Jail. 

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Material facts remain in dispute on Ms. Gonzales’ Eighth Amendment claim that

stand in stark contrast to the absence of any such evidence in Hovater and Pulsipher. 

Here, Ms. Gonzales did not rely upon any official policy which could be substituted for

Sheriff Salazar’s knowledge the Huerfano County Jail where she was assaulted was not a

safe place.

18 Instead, viewing the evidence in a light most favorable to her, as we must, it

may be fairly inferred Sheriff Salazar’s purported ignorance of the dangerous conditions

in the jail was a direct result of his lackadaisical attitude toward his responsibility to run

the institution. An inference of the sheriff’s lack of responsiveness can also be drawn

from other facts. 

First, Sheriff Salazar explicitly stated his Jail Administrator did not want to

investigate allegations of problems at the Jail. Second, the evidence indicates the

sheriff’s consistent willingness to ignore inmate complaints by attributing them to

attitudes of the complainants, characterizing them as “troublemakers” or “conjuring up”

incidents to “discredit” his deputies,” allowed him to excuse his failure to pursue the

issues any further. Finally, and most astonishing, when first advised two visibly “upset”

female inmates accused two of his jailers of sexually assaulting them, he not only left the

prisoners unprotected in the jail, but also in the custody and control of the very men
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accused of the assaults. When the women were removed for their protection, the decision

to do so was not made by Sheriff Salazar, but by the District Attorney. None of this

evidence is controverted, and its significance was seemingly ignored by the district court.

Finally, we are constrained to note the district court misread Farmer, believing it

required Ms. Gonzales to show Sheriff Salazar specifically knew Major Bob posed a

substantial risk of harm to her. Rather, the Farmer Court noted a prison official could not

escape liability by showing although “he was aware of an obvious, substantial risk to

inmate safety, he did not know that the complainant was especially likely to be assaulted

by the specific prisoner who eventually committed the assault.” 511 U.S. at 843 (emphasis

added). “[I]t does not matter whether the risk comes from a single source or multiple

sources, any more than it matters whether a prisoner faces an excessive risk of attack for

reasons personal to him or because all prisoners in his situation face such a risk.” Id.

The undisputed evidence of the physical assaults on inmates set against the facts of

Sheriff Salazar’s knowledge of reported risks to inmate health or safety, including the

documented lapse of security in the control room, complaints of sexual harassment and

intimidation, Dominick’s demotion for, as Sergeant Zudar characterized it, “a combination

of things,” as well as the presence in the record of Ms. Tefteller’s letter, which she attested

was handed to Major Bob, surely raise a reasonable inference that Sheriff Salazar knew of

and disregarded an excessive risk to Ms. Gonzales. Under these circumstances, at the

least, Ms. Gonzales has raised a triable issue of material fact that Sheriff Salazar had the
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“requisite knowledge of a substantial risk,” which, Farmer acknowledges, may be

demonstrated “in the usual ways, including inference from circumstantial evidence.” 

511 U.S. at 842 (emphasis added).

In the interstice between the facts presented and the inferences arising from

evidence of Sheriff Salazar’s knowledge of activities at the Jail, this triable issue was

prematurely dismissed at the summary judgment stage. Left on remand is for the trier of

fact, then, to decide whether these inferences are sufficiently strong to cast constitutional

responsibility on Sheriff Salazar’s conduct. We therefore REVERSE the district court’s

order granting summary judgment and REMAND for further proceedings.