FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMANTHA VAZQUEZ,

Plaintiff-Appellant,

v.

COUNTY OF KERN; HEATHE 

APPLETON; GEORGE ANDERSON,

Defendants-Appellees.

Nos. 18-15060

18-15671

D.C. No.

1:16-cv-01469-JLT

OPINION

Appeal from the United States District Court

for the Eastern District of California

Jennifer L. Thurston, Magistrate Judge, Presiding

Argued and Submitted July 16, 2019

San Francisco, California

Filed January 31, 2020

Before: Richard A. Paez and Johnnie B. Rawlinson, 

Circuit Judges, and Paul C. Huck,* District Judge.

Opinion by Judge Paez

* The Honorable Paul C. Huck, United States District Judge for the 

U.S. District Court for Southern Florida, sitting by designation.
2 VAZQUEZ V. COUNTY OF KERN

SUMMARY**

Prisoner Civil Rights

The panel reversed the district court’s summary 

judgment in favor of defendants in an action brought 

pursuant to 42 U.S.C. § 1983 alleging that a Juvenile 

Corrections Officer violated plaintiff’s constitutional rights 

when he made sexual comments to her, groomed her for 

sexual abuse, and looked at her inappropriately while she 

was showering. 

The panel held that, viewing the facts in the light most 

favorable to plaintiff and drawing all reasonable inferences 

in her favor, she had presented sufficient facts to establish a 

violation of her right to bodily privacy, right to bodily 

integrity, and right to be free from punishment as guaranteed 

by the Fourteenth Amendment. Thus, the panel held that 

the Corrections Officer violated plaintiff’s right to privacy 

under the Fourteenth Amendment when he allegedly 

watched her shower multiple times. Additionally, a jury 

could find that the Officer’s alleged conduct, which included 

touching plaintiff’s face and shoulders without her consent, 

talking about her appearance in her shower gown, and telling 

her about a sexual dream, violated plaintiff’s Fourteenth

Amendment right to bodily integrity. Finally, the panel held 

that plaintiff asserted facts from which a jury could find that 

the Officer violated plaintiff’s right to be free from 

punishment because she alleged that the Officer’s conduct 

caused her harm outside of the inherent discomforts of 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
VAZQUEZ V. COUNTY OF KERN 3

confinement and did not serve a legitimate governmental 

objective. The panel held that the Officer was not entitled to 

qualified immunity.

The panel held that a jury could find that the Officer’s 

supervisor knew or reasonably should have known of the 

violations and failed to act to prevent them. Thus, viewing 

the evidence in the light most favorable to plaintiff and 

making all justifiable inferences in her favor, the panel held 

that the district court erred when it concluded there was no 

evidence supporting a causal link between the supervisor’s 

conduct and the Officer’s alleged violation of plaintiff’s 

constitutional rights. 

In addition to reversing the summary judgment in favor 

of the individual defendants, the panel also vacated the 

district court’s judgment for Kern County and the district 

court’s order awarding costs.

COUNSEL

Thomas C. Seabaugh (argued), The Law Office of Thomas 

C. Seabaugh, Los Angeles, California; Paul Hoffman, 

Schonbrun Desimone Seplow Harris & Hoffman LLP, 

Hermosa Beach, California; David K. Cohn, Chain Cohn 

Stiles, Bakersfield, California; for Plaintiff-Appellant.

Kathleen Sarah Rivera (argued), Deputy County Counsel; 

Mark L. Nations, County Counsel; Office of the Kern 

County Counsel, Bakersfield, California; for DefendantsAppellees County of Kern and Heathe Appleton.
4 VAZQUEZ V. COUNTY OF KERN

James D. Weakley (argued) and Ashley N. Torres, Weakley 

and Arendt PC, Fresno, California; for Defendant-Appellee

George Anderson.

Ian M. Kysel (argued) and Amanda Goad, ACLU 

Foundation of Southern California, Santa Ana, California, 

for Amicus Curiae ACLU of Southern California.

OPINION

PAEZ, Circuit Judge:

In January 2015, Samantha Vazquez was arrested on an 

outstanding warrant and taken to Kern County Juvenile Hall. 

Vazquez argues that while in custody at the hall, a Juvenile 

Corrections Officer, George Anderson, made sexual 

comments to her, groomed her for sexual abuse, and looked 

at her inappropriately while she was showering.

Vazquez filed this action against Anderson, his 

supervisor, Heathe Appleton, and the County of Kern (“Kern 

County”). She brought claims under 42 U.S.C. § 1983, 

alleging that Anderson’s conduct violated her constitutional 

rights. She also alleged claims against Kern County and 

Appleton for municipal and supervisory liability. The 

district court ultimately granted Anderson’s and Appleton’s 

motions for summary judgment.1 We have jurisdiction 

under 28 U.S.C. § 1291, and we reverse and remand.

1 After issuing the orders granting the motions for summary 

judgment filed by Anderson and Appleton, the district court issued an 

order to show cause whether Vazquez could maintain this action against 

Kern County considering the summary judgment rulings. Vazquez 
VAZQUEZ V. COUNTY OF KERN 5

BACKGROUND

Vazquez entered Kern County Juvenile Hall in January 

2015. She was housed in Unit 300A, an all-female unit, 

where Anderson worked. Juvenile hall staff frequently 

placed wards on work “details,” including laundry, kitchen, 

and clean-up.

Vazquez contends that Anderson purposefully selected 

her to work “details” with him. During her deposition, 

Vazquez testified that Anderson said inappropriate things to 

her such as calling her “babe” and telling her she had a “big 

butt” in the juvenile hall pants. Vazquez also testified that 

Anderson “grabbed [her] face,” “touched [her] shoulders,” 

and talked with her about her shower gown.

In her testimony, Vazquez described one specific 

incident where she was working a “detail” with Anderson 

and he told her about a dream he had about her that was 

“rated R.” She testified that he told her to shut the door and 

then told her the details of the dream including that, in the 

dream, she “grabbed him by his t-shirt,” “gave him a kiss” 

and “after that [they] ended up going to a room and, like, 

having fun and stuff.” After that, she testified that he told 

her “to get close to him, like, to the point where he had 

opened his knees and [she] was right in the middle of him, 

and [he] told [her] that he wanted his dream to come true.” 

Vazquez testified that she moved away from him after and 

felt “really really awkward.”

responded and while preserving her right to appeal, agreed that the action 

could not be maintained against Kern County in light of the district 

court’s rulings. The district court then dismissed the action against Kern 

County and entered judgment in favor of all defendants.
6 VAZQUEZ V. COUNTY OF KERN

Vazquez also alleged that Anderson would tell her which 

shower stalls to use and that he looked at her inappropriately 

while she was showering on three or four occasions. She 

testified that she caught him staring at her in the shower 

when he was standing at the staff counter and that she tried 

to cover herself up.2 She also testified that Anderson told 

her he had seen her in the shower, and that she should leave 

her boyfriend and “find someone better like him.”

Vazquez first reported her allegations to substance abuse 

specialist Francisco Maldonado. Maldonado testified that 

when Vazquez made the allegations he felt she was being 

truthful. Maldonado reported the allegations and Kern 

County opened an investigation into Vazquez’s complaints 

that same day.

The investigation was led by Shaun Romans and lasted 

approximately eight months. Romans interviewed fifty-five 

people and reviewed three interviews conducted by the 

Bakersfield Police Department. When questioned about the 

allegations against Anderson, Romans testified that in his 

investigative opinion, he “leaned toward them being true, 

toward the belief that it was more likely than not that they 

were true.” The allegations were also sustained by the 

disciplinary review board at the probation department. Kern 

County then began the process of terminating Anderson’s 

employment.

Anderson testified that he selected Vazquez to work with 

him once or twice and that “maybe once” they had been 

alone in a room together for twenty minutes. He testified 

2 The record reflects that a person sitting at the staff counter in Unit 

300A could look into at least one of the shower stalls through a gap in 

the shower curtains.
VAZQUEZ V. COUNTY OF KERN 7

that he selected Vazquez because she was a gang member 

who supplied him with useful gang intelligence and because 

she was a good worker. He contended that Vazquez told him 

about her boyfriend, who was a gang member, and told him 

that she had hidden some of her boyfriend’s guns at her 

house. Anderson also testified that he remained at the staff 

counter while Vazquez showered on one or two occasions, 

but that he was never told that he could not sit at the staff 

counter while female wards showered.

Several staff members testified that they observed 

Anderson alone with female wards, including Vazquez. 

Another staff member testified that she observed Anderson 

sitting at the staff counter while female wards showered.

Shay Molennor, Director of Kern County Juvenile Hall, 

testified that at the time of Vazquez’s allegations, Kern 

County had policies in place at the juvenile hall to prevent 

or deter sexual abuse of wards. She further testified that 

certain standards in place at the time implemented the Prison 

Rape Elimination Act (PREA). See 34 U.S.C. §§ 30301–

30309 (2017); 28 C.F.R. §§ 115.11–115.16.

Moreover, Molennor testified that Section 1425 of the 

Juvenile Hall Basic Staff Rules, which were in effect at the 

time of the allegations, stated: “Staff members are not 

permitted alone in the rooms with minors of the opposite 

gender except during an emergency. For security purposes, 

staff should avoid being alone with any minor in their room.” 

She testified that the Juvenile Hall Administrative Manual 

required supervision of the showers to be provided by staff 

of the same gender as the youth and that “except in exigent 

circumstances or incidental to a routine youth safety check 

the youth will be permitted to shower, perform bodily 

functions, and change clothing without nonmedical staff of 
8 VAZQUEZ V. COUNTY OF KERN

the opposite gender viewing their breasts, buttocks, or 

genitalia.”

STANDARD OR REVIEW

We review de novo a district court’s “grant of summary 

judgment.” Branch Banking & Tr. Co. v. D.M.S.I., LLC, 

871 F.3d 751, 759 (9th Cir. 2017). “We must determine, 

viewing the evidence in the light most favorable to the 

nonmoving party and drawing all justifiable inferences in its 

favor, whether there are any genuine issues of material fact 

and whether the moving party is entitled to judgment as a 

matter of law.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 

772 (9th Cir. 2002).

We review de novo a district court’s decision on 

qualified immunity. Entler v. Gregoire, 872 F.3d 1031, 

1038 (9th Cir. 2017). We review for abuse of discretion a 

district court’s award of costs. Draper v. Rosario, 836 F.3d 

1072, 1087 (9th Cir. 2016).

DISCUSSION

On appeal, Vazquez challenges the district court’s orders 

granting Anderson’s motion for summary judgment, 

Appleton’s motion for summary judgment on Vazquez’s 

supervisory liability claim, and the district court order 

awarding costs.

I. Anderson’s Motion for Summary Judgment

The district court granted Anderson’s motion for 

summary judgment of Vazquez’s claims to the extent they 

were based on sexual abuse or a violation of Vazquez’s right 

to privacy. First, Anderson argued that even if Vazquez’s 

sexual abuse allegations were true, his alleged conduct did 
VAZQUEZ V. COUNTY OF KERN 9

not violate her constitutional rights. The district court 

agreed, concluding that it could not find “harm of 

constitutional proportions” regarding the sexual abuse claim.

Second, regarding the privacy claim, the district court 

acknowledged there was a “dispute regarding whether—and 

to what extent—Anderson watched [Vazquez] in the 

shower.” Taking the facts in the light most favorable to 

Vazquez, the district court concluded that Anderson’s 

alleged conduct was not sufficiently frequent to violate 

Vazquez’s right to privacy. Finally, the district court 

proceeded to conclude that even assuming Anderson’s 

conduct rose to the level of a constitutional violation, he was 

entitled to qualified immunity.

We disagree. We hold that, viewing the facts in the light 

most favorable to Vazquez and drawing all reasonable 

inferences in her favor, she has presented sufficient facts to 

establish a violation of her right to bodily privacy, right to 

bodily integrity, and right to be free from punishment as 

guaranteed by the Fourteenth Amendment. We also hold 

that Anderson is not entitled to qualified immunity.

A. Fourteenth Amendment Right to Bodily Privacy

“The right to bodily privacy [under the Fourteenth 

Amendment] was established in this circuit in 1963.” 

Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th Cir. 

1992) (citing York v. Story, 324 F.2d 450 (9th Cir. 1963)).3 

3 In York, the female plaintiff alleged that after she went to the police 

department to report an assault, a male officer took and later distributed 

photographs of her in nude positions that did not depict her injuries and 

were not made for any lawful or legitimate purpose. 234 F.2d at 452. 

We “relied upon the [F]ourteenth Amendment as the source of the 

woman’s protection, reasoning that the security of one’s privacy against 
10 VAZQUEZ V. COUNTY OF KERN

We extended “this right to prison inmates in 1985,” id.

(citation omitted), and we have held that a pretrial detainee 

has “at least the same right to bodily privacy as a prisoner,” 

Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923

(9th Cir. 2017).

In Grummett, we considered a class action asserting that 

a “policy and practice of allowing female correctional 

officers to view male inmates in states of partial or total 

nudity while dressing, showering, being stripped searched, 

or using toilet facilities violated [the inmates’] rights of 

privacy guaranteed by the United States Constitution.” 

779 F.2d at 492. In our analysis, we noted that female 

guards were “not assigned to positions requiring unrestricted 

and frequent surveillance”; female guards routinely walked 

past cells, but did not stop for prolonged inspection; female 

guards did not accompany male inmates to the showers; and 

“females [were] assigned to the more distant gunrail 

position, overlooking showers, where . . . the surveillance 

[was] obscured.” Id. at 494–95. From these circumstances, 

we concluded that “the inmates have not demonstrated that 

these restricted observations by members of the opposite sex 

are so degrading as to require intervention by this court.” Id.

at 494.

arbitrary intrusion by the police is basic to a free society and therefore 

‘implicit in the concept of ordered liberty’ under the due process clause.” 

Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985) (quoting York, 

234 F.2d at 455). “We held that the plaintiff had stated a privacy claim 

under the [F]ourteenth [A]mendment because we could not conceive of 

a more basic subject of privacy than the naked body. Id. (citation 

omitted). We noted that “[t]he desire to shield one’s unclothed figure 

from [the] view of strangers, and particularly strangers of the opposite 

sex, is impelled by elementary self-respect and personal dignity.” Id.

(internal quotation marks and citation omitted).
VAZQUEZ V. COUNTY OF KERN 11

Similarly, in Sepulveda, we considered the claim of a 

female parolee who alleged that a male officer entered the 

restroom while she was providing a urine sample for drug 

tests. 967 F.2d at 1415. The female parolee objected to his 

presence and asked him to leave, but the male officer 

laughed at her and remained in the restroom. Id. We 

affirmed the district court’s order that the officer was not 

entitled to summary judgment on the basis of qualified 

immunity, concluding that the plaintiff’s “experience was far 

more degrading . . . than the situation faced by the inmates 

in Grummett.” Id. at 1415–16. We pointed out that, unlike 

in Grummett, the defendant’s view of the parolee was 

“neither obscured nor distant.” Id.

Here, Vazquez contends that Anderson violated her right 

to privacy under the Fourteenth Amendment when he 

allegedly watched her shower multiple times and on one 

occasion looked into her room when her privacy sign was 

up.4 First, Anderson concedes that “[t]he right to not be 

viewed naked by members of the opposite sex is protected 

under the Constitution,” but contends that “there is a 

compelling state interest for the safety and security of the 

juvenile detention facility for the guards to be present (in a 

separate room and behind a computer desk during the wards’ 

shower time.)”5

Anderson’s argument that there is a compelling state 

interest for his alleged actions is not persuasive as there is 

4 Indeed, Vazquez testified that Anderson told her he had seen her 

in the shower.

5 “[W]hen a prison regulation impinges on inmates’ constitutional 

rights, the regulation is valid if it is reasonably related to legitimate 

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see also 

Byrd, 845 F.3d at 923.
12 VAZQUEZ V. COUNTY OF KERN

evidence in the record that his actions, at least with respect 

to the shower allegations, were against institution policy. 

See Byrd, 845 F.3d at 924 (noting that the fact that the 

challenged observation violated the prison’s policy 

“suggests that there may be no ‘valid rational connection’ 

between the observation and a legitimate prison interest”). 

For example, another corrections officer testified that she 

was trained that male staff should not be in the unit while 

females are showering and that if she had observed 

Anderson at the staff counter while female wards were 

showering she would have reported it. A substance abuse 

counselor also testified that if he had observed a male staff 

member sitting at the staff counter while female wards were 

showering he would have reported it. And the director of the 

juvenile hall testified that the Juvenile Hall Administrative 

Manual required supervision of the showers to be provided 

by staff of the same gender as the youth, and that “except in 

exigent circumstances or incidental to a routine youth safety 

check the youth will be permitted to shower . . . without 

nonmedical staff of the opposite gender viewing their 

breasts, buttocks, or genitalia.”

Second, Anderson argues that his alleged conduct, even 

if true, did not violate Vazquez’s right to privacy because his 

view into the showers was infrequent, from a distance, and 

did not involve an inappropriate amount of contact. Yet 

viewing the evidence in the light most favorable to Vazquez, 

even if Anderson observed her from a distance, the question 

of whether his observation was “infrequent and casual” 

remains in dispute. Moreover, there is evidence that 

Anderson directed Vazquez to use a certain shower stall so 

he could obtain the best view.

Given the evidence that there was no rational connection 

between Anderson’s conduct and a legitimate prison interest 
VAZQUEZ V. COUNTY OF KERN 13

and the evidence that Anderson’s view was not necessarily 

“obscured and from a distance,” we disagree with the district 

court that Anderson’s alleged viewings were not sufficiently 

frequent to violate Vazquez’s right to privacy under the 

Fourteenth Amendment. See Byrd, 845 F.3d at 922, 924 

(concluding allegations that female prison guards regularly 

viewed a male pretrial detainee’s bathroom and shower use 

violated his Fourteenth Amendment right to bodily privacy 

could not be dismissed without an answer). Viewing the 

evidence in the light most favorable to Vazquez, we hold that 

a reasonable jury could conclude that Anderson violated 

Vazquez’s Fourteenth Amendment right to bodily privacy.

B. Fourteenth Amendment Right To Bodily 

Integrity

“Most cases that involve unwanted sexual contact or 

harassment by public officials have been analyzed under the 

substantive due process right to be free from violations of 

bodily integrity under the Fourteenth Amendment.” 

Fontana v. Haskin, 262 F.3d 871, 881–82 n.6. (9th Cir. 

2001).6 “Under the Fourteenth Amendment’s substantive 

due process prong, we use the ‘shocks the conscience’ test.” 

Id. at 882 n.7 (citing Cty. of Sacramento v. Lewis, 523 U.S. 

833, 846 (1998)). “The threshold question is ‘whether the 

behavior of the governmental officer is so egregious, so 

outrageous, that it may fairly be said to shock the 

contemporary conscience.’” Id. (quoting Sacramento, 

523 U.S. at 848 n. 8).

6 Cases involving unwanted sexual contact or harassment by public 

officials during an arrest or custodial situation are evaluated under the 

Fourth Amendment. Fontana, 262 F.3d at 881–82 n.6. As Vazquez did 

not raise any Fourth Amendment arguments in her appellate briefing, we 

only address the Fourteenth Amendment.
14 VAZQUEZ V. COUNTY OF KERN

Vazquez asserts that Anderson selected her for isolated 

work details so that he could groom her for sex. She alleges 

that Anderson referred to her as “babe,” told her she had a 

“big butt,” touched her face and shoulders without her 

consent, talked to her about her appearance in her shower 

gown, told her he had seen her in the shower, and told her 

that she should leave her boyfriend and “find someone better 

like him.” Moreover, she testified that during a work detail, 

Anderson told her to close the door and proceeded to tell her 

about a sexual dream he had about her. Vazquez testified 

that Anderson then told her “to get close to him . . . to the 

point where he had opened his knees and [she] was right in 

the middle of him, and he told [her] that he wanted his dream 

to come true.”

As he did before the district court, Anderson continues 

to argue that even assuming Vazquez’s version of events is 

true, his alleged conduct was too insignificant to constitute a 

violation of Vazquez’s Fourteenth Amendment right to 

bodily integrity. Thus, we must consider whether 

Anderson’s alleged conduct, if true, would violate 

Vazquez’s Fourteenth Amendment right to bodily integrity.

In Fontana, we considered whether similar conduct was 

sufficient to allege a section 1983 claim.7 262 F.3d at 875–

76. There, the plaintiff was arrested for drunk driving, 

handcuffed, and placed in the back of a police vehicle as she 

was driven to jail. Id. at 875. The plaintiff alleged a police 

officer sexually harassed her during the drive to the station. 

7 We analyzed Fontana under the Fourth Amendment because it 

involved an arrest but noted that if it had not involved an arrest, we would 

have analyzed the case under the Fourteenth Amendment. Fontana,

262 F.3d at 881–82 n.6. We ultimately said that even if we were to apply 

the Fourteenth Amendment analysis, using the “shocks the conscience” 

test, we would have reached the same result. Id. at 882 n.7.
VAZQUEZ V. COUNTY OF KERN 15

Id. She alleged that an officer sat in the back seat next to her 

where he told her she had nice legs, put his arm around her, 

massaged her shoulders, told her he could be her “older 

man,” and made other sexual comments. Id. The defendant 

officer argued that his alleged behavior did not violate any 

of the plaintiff’s constitutional rights as a matter of law. Id.

at 878. We disagreed, concluding that the allegations, if true, 

were “an abuse of power” and violations of the plaintiff’s 

bodily integrity. Id. at 881. Significantly, in our analysis, 

we also took note of the context of the allegations. See id.

at 880–81 (noting the plaintiff alleged she was “helpless, 

handcuffed, and frightened and, thus, in a vulnerable 

position when [the defendant] began to prey upon her” 

because “[s]he had just been in a disorienting, high speed car 

accident at two o’clock in the morning”).

Here, Vazquez’s assertions are sufficiently similar to 

those in Fontana for us to conclude that a reasonable jury 

could find that Anderson’s alleged conduct violated 

Vazquez’s Fourteenth Amendment right to bodily integrity. 

Moreover, the context of Vazquez’s allegations demonstrate 

that she was at least as vulnerable as the Fontana plaintiff. 

At the time of the alleged events, Vazquez was a female 

ward at juvenile hall, whereas Anderson was 45 years old, 

was larger than Vazquez, wore a uniform, and had the power 

to discipline her if she refused to follow his instructions.

Thus, a jury could find that Anderson’s alleged conduct “was 

egregious and outrageous and shocks the conscience as a 

matter of law.” Fontana, 262 F.3d at 882 n.7.

C. Fourteenth Amendment Right to be Free From 

Punishment

“The status of the detainees determines the appropriate 

standard for evaluating conditions of confinement.” Gary H. 

v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). “Due 
16 VAZQUEZ V. COUNTY OF KERN

process requires that a pretrial detainee not be punished. A 

sentenced inmate, on the other hand, may be punished, 

although that punishment may not be ‘cruel and unusual’ 

under the Eighth Amendment.” Bell v. Wolfish, 441 U.S. 

520, 537 n.16 (1979).

“For a particular governmental action to constitute 

punishment, (1) that action must cause the detainee to suffer 

some harm or ‘disability,’ and (2) the purpose of the 

governmental action must be to punish the detainee.” 

Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) 

(citing Bell, 441 U.S. at 538). “[T]o constitute punishment, 

the harm or disability caused by the government’s action 

must either significantly exceed, or be independent of, the 

inherent discomforts of confinement.” Id. at 1030 (citation 

omitted). Once harm is established, the court considers 

“whether this harm is imposed ‘for the purpose of 

punishment or whether it is but an incident of some other 

legitimate governmental purpose.’” Id. (quoting Bell, 

441 U.S. at 538).

Here, we evaluate Vazquez’s right to be free from 

punishment under the Fourteenth Amendment. See Gary H., 

831 F.2d at 1432 (concluding that the district court correctly 

evaluated the conditions of confinement at a facility for 

adolescent wards of the juvenile court under the Fourteenth 

Amendment due process clause rather than the Eighth 

Amendment).8 The district court acknowledged that 

Vazquez’s claim stems from the Fourteenth Amendment, 

8 In an amicus brief filed in support of Vazquez, the American Civil 

Liberties Union of Southern California (“the ACLU”) argues that we 

should evaluate Vazquez’s claims under an even more protective 

standard than the Constitution provides to adult pretrial detainees. We 

do not address this argument because Vazquez can prevail under our 

existing Fourteenth Amendment standards.
VAZQUEZ V. COUNTY OF KERN 17

rather than the Eighth Amendment, but erred in its 

conclusion that it should evaluate the Fourteenth 

Amendment claim under “the same standards” as an Eighth 

Amendment claim. Rather, the Fourteenth Amendment is 

more protective than the Eighth Amendment “because the 

Fourteenth Amendment prohibits all punishment of pretrial 

detainees, while the Eighth Amendment only prevents the 

imposition of cruel and unusual punishment of convicted 

prisoners.” Demery, 378 F.3d at 1029 (citing Bell, 441 U.S. 

at 535 n.16) (emphasis added).

In Byrd, we considered, among other issues, whether 

allegations that female guards observed a pretrial detainee in 

the bathroom and shower violated his Fourteenth 

Amendment right to be free from cruel and unusual 

punishment. 845 F.3d at 921–22, 924. There, the district 

court sua sponte dismissed the complaint under 28 U.S.C. 

§ 1915A after concluding that the policy of allowing crossgender supervision had long been held constitutional in the 

Ninth Circuit. Id. at 922. Because no evidence had yet been 

presented to support potential goals behind the observation 

policy and because the prison’s strip search policy 

potentially banned this type of observation, we concluded 

that the allegations were sufficient to proceed past the 

screening stage. Id. at 924.

Here, Vazquez has asserted facts from which a jury could 

find that Anderson violated her right to be free from 

punishment. First, Vazquez alleged that Anderson’s conduct 

caused her harm outside of the inherent discomforts of 

confinement. Second, Anderson’s alleged conduct did not 

serve a legitimate governmental objective. As discussed 

above, there is evidence that Anderson’s alleged viewing of 

Vazquez in the shower served no legitimate purpose as such 

observations were against institution policy. See Byrd, 
18 VAZQUEZ V. COUNTY OF KERN

845 F.3d at 924. Anderson’s other alleged conduct—

including selecting Vazquez for work details so they could 

be alone together; calling Vazquez “babe”; telling her she 

had a “big butt”; touching her face and shoulders; 

commenting on her shower gown; telling her that he had 

seen her in the shower and that she should leave her 

boyfriend to find someone like him; directing her to use 

certain showers; telling her about a sexual dream he had 

about her and that he wanted the dream to come true; and 

directing her “to get close to him . . . to the point where he 

had opened his knees and [she] was right in the middle of 

him”—serves no legitimate purpose. In light of this record 

evidence, we hold that a jury could find that Anderson 

violated Vazquez’s Fourteenth Amendment right to be free 

from punishment.

D. Qualified Immunity

“Qualified immunity attaches when an official’s conduct 

does not violate clearly established statutory or 

constitutional rights of which a reasonable person would 

have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 

(2018) (internal quotation marks and citation omitted). “A 

clearly established right is one that is sufficiently clear that 

every reasonable official would have understood that what 

he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 

305, 308 (2015) (internal quotation marks and citation 

omitted). “[T]he clearly established right must be defined 

with specificity.” City of Escondido, Cal. v. Emmons, 139 S. 

Ct. 500, 503 (2019). However, “there can be the rare 

‘obvious case,’ where the unlawfulness of the officer’s 

conduct is sufficiently clear even though existing precedent 

does not address similar circumstances.” D.C. v. Wesby, 

138 S. Ct. 577, 590 (2018). Thus, “[w]hen a violation is 

obvious enough to override the necessity of a specific factual 
VAZQUEZ V. COUNTY OF KERN 19

analogue, . . . it is almost always wrong for an officer in 

those circumstances to act as he did.” Sharp v. Cty. of 

Orange, 871 F.3d 901, 912 (9th Cir. 2017). Training 

materials and regulations are also relevant, although not 

dispositive, to determining whether reasonable officers 

would have been on notice that their conduct was 

unreasonable. Drummond ex rel. Drummond v. City of 

Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003); see also 

Hope v. Pelzer, 536 U.S. 730, 741–42 (2002) (considering 

an Alabama Department of Corrections regulation and a 

Department of Justice report in its qualified immunity 

analysis).

i. Bodily Privacy

In this circuit, “[i]t is clearly established that the 

Fourteenth Amendment protects a sphere of privacy, and the 

most ‘basic subject of privacy . . . the naked body.’” Hydrick 

v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007), cert. granted, 

judgment vacated on other grounds, 556 U.S. 1256 (2009) 

(quoting Grummet, 779 F.2d at 494); see also Sepulveda, 

967 F.2d at 1416 (“The right to bodily privacy is 

fundamental. . . . and was clearly established at the time 

. . . .”).

Anderson also likely attended a PREA training.9 Under 

the PREA, sexual abuse includes “[v]oyeurism, which is 

defined as the inappropriate visual surveillance of a detainee 

for reasons unrelated to official duties.” 6 C.F.R. § 115.6. 

Moreover, Kern County Juvenile Hall’s policies require 

9 Catherine Gonzalez, a Deputy Probation Officer, testified that she 

taught Kern County’s PREA course and that she believed that Anderson 

and Appleton completed the PREA training. Gonzalez testified that the 

PREA course “goes over the policy,” but did not explicitly explain what 

was covered in the training.
20 VAZQUEZ V. COUNTY OF KERN

supervision of showers to be provided by staff of the same 

gender, and, absent exigent circumstances or incidental to a 

routine safety check, require that a ward be allowed to 

shower and perform bodily functions without nonmedical 

staff of the opposite gender from viewing them.

Therefore, given that we have clearly recognized a 

Fourteenth Amendment right to bodily privacy, the Juvenile 

Hall administrative policies, and the training Anderson 

likely attended, he is not entitled to qualified immunity for 

Vazquez’s Fourteenth Amendment bodily privacy claim.

ii. Bodily Integrity and Right to Be Free From 

Punishment

“Where guards themselves are responsible for the rape 

and sexual abuse of inmates, qualified immunity offers no

shield.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 

2000) (emphasis in original). “In the simplest and most 

absolute of terms the . . . right of prisoners to be free from 

sexual abuse [is] unquestionably clearly established [in the 

Ninth Circuit] . . . and no reasonable prison guard could 

possibly [believe] otherwise.” Schwenk v. Hartford, 

204 F.3d 1187, 1197 (9th Cir. 2000).

Anderson argues that his alleged conduct—including 

sexual comments and contact—is not equivalent to the 

sexual abuse that we have found unconstitutional. Yet, in 

Fontana, we noted that the alleged similar conduct, was 

“malum in se” and that “[n]o reasonable officer could 

believe that this conduct did not violate [the plaintiff’s] 

constitutional rights.” Fontana, 262 F.3d at 882 n.8. 

Moreover, the Kern County Juvenile Hall policy prohibiting 

staff members from being alone in a room with minors 

absent an emergency as well as Anderson’s likely PREA 

training provided him with notice that his alleged conduct 
VAZQUEZ V. COUNTY OF KERN 21

was unreasonable. 10 And, beyond the clearly established 

case law, training, and juvenile hall policies, it is “obvious” 

that a juvenile corrections officer should not sexually harass 

or abuse a juvenile ward as it is always wrong for a juvenile 

corrections officer to engage in such conduct. See Sharp, 

871 F.3d at 912 (9th Cir. 2017). Accordingly, we conclude 

that Anderson is not entitled to qualified immunity for 

Vazquez’s bodily integrity or punishment claims.

II. Appleton’s Motion for Summary Judgment

Appleton sought summary adjudication of Vazquez’s 

claim for relief for supervisory liability under § 1983. 

“Although there is no pure respondeat superior liability 

under § 1983, a supervisor is liable for the acts of his 

subordinates if the supervisor participated in or directed the 

violations, or knew of the violations [of subordinates] and 

failed to act to prevent them. Preschooler II v. Clark Cty. 

Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) 

(internal quotation marks and citation omitted). “The 

requisite causal connection may be established when an 

official sets in motion a series of acts by others which the 

actor knows or reasonably should know would cause others 

to inflict constitutional harms.” Id. at 1183 (internal 

quotation marks and citation omitted).

Vazquez identified facts from which a jury could find 

that Appleton “set[] in motion a series of acts” which he 

reasonably should have known would cause Anderson to 

10 PREA defines “sexual harassment” as “[r]epeated verbal 

comments or gestures of a sexual nature to an inmate, detainee, or 

resident by a staff member, contractor, or volunteer, including 

demeaning references to gender, sexually suggestive or derogatory 

comments about body or clothing, or obscene language or gestures.” 

28 C.F.R. § 115.6.
22 VAZQUEZ V. COUNTY OF KERN

inflict constitutional harm. Id. at 1183. First, he observed 

Anderson alone with female wards on more than one 

occasion and failed to intervene. Anderson also testified that 

Appleton gave him permission to be alone in a cell with 

female wards during work details.

Second, Appleton was aware of a prior incident 

involving Anderson’s supervision of female wards’ showers. 

Approximately six months before Vazquez raised her 

allegations, a staff member overheard Anderson tell a female 

ward to get ready to shower when the female staff and other 

wards were outside at physical education. The staff member 

was concerned by Anderson’s actions, partly because the 

gap in the shower curtains would allow someone sitting at 

the staff counter to see into the showers. She took notes 

about the incident and reported it to Appleton. Appleton did 

not write Anderson up, but he did bring up the incident with 

his supervisor. 11 Appleton testified that his supervisor told 

him to remind Anderson to have a female staff member in 

the unit while showers were conducted. Appleton testified 

he did not recall exactly how he spoke to Anderson about the 

matter but that he would have conveyed to him something 

“along the lines” of needing “to have a female present during 

showers.”

From this evidence a jury could find that Appleton knew 

or reasonably should have known of Anderson’s violations 

and failed to act to prevent them. See Preschooler II, 

479 F.3d at 1182. Thus, viewing the evidence in the light 

most favorable to Vazquez and making all justifiable 

inferences in her favor, we hold that the district court erred 

11 Appleton was trained that if he observed any red flags of sexual 

abuse or if he received any reports from other staff members, he had to 

document and report the observations.
VAZQUEZ V. COUNTY OF KERN 23

when it concluded there was no evidence supporting a causal 

link between Appleton’s conduct and Anderson’s alleged 

violation of Vazquez’s constitutional rights.

CONCLUSION

The district court erred when it granted Anderson’s and 

Appleton’s motions for summary judgment. Because we 

conclude the district court erred in granting summary 

judgment, we need not consider Vazquez’s argument that the 

district court erred when it imposed costs. Accordingly, for 

the reasons described above, we REVERSE and REMAND

for further proceedings consistent with this opinion.12

12 Furthermore, we vacate the district court’s order awarding costs. 

We also vacate the district court’s judgment in favor of Kern County and 

remand for further proceedings consistent with this opinion.