Carolyn Arnett v. Larry Norris, In his individual capacity

United States Court of Appeals
For the Eighth Circuit
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No. 24-3144
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Carolyn Arnett
Plaintiff - Appellee
v.
Larry Norris, In his individual capacity; Ray Hobbs, In his individual capacity
(originally named as Roy Hobbs); Wendy Kelley, In her individual capacity
Defendants - Appellants
Linda Dixon, In her individual capacity; John Maples, In his individual capacity;
Maggie Capel, In her individual capacity
Defendants
Nurzuhal Faust, In his individual capacity; Christopher Budnik, In his individual
capacity; Linda Dykes, In her individual capacity
Defendants - Appellants
John Wheeler, In his individual capacity; Don Yancey, In his individual capacity;
Stacey Smith, In her individual capacity; Kenneth DeWitt, In his individual
capacity
Defendants
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: September 18, 2025
Filed: December 3, 2025
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Before BENTON, GRASZ, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
Carolyn L. Arnett, an inmate, sued officials of the Arkansas Division of
Correction, as relevant here under 42 U.S.C. § 1983. The ADC officials sought
summary judgment based on qualified immunity. The district court1 partly granted
and partly denied their motions, finding genuine issues of material fact in her claims
against Nurzuhal Faust, Christopher T. Budnik, and Linda D. Dykes. They appeal.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
This court “take[s] as true the facts that the district court found were
adequately supported, as well as the facts that the district court likely assumed, to
the extent that they are not blatantly contradicted by the record. Viewed in this
manner, the facts are these.” Dantzler v. Baldwin, 133 F.4th 833, 836 (8th Cir.
2025).
Arnett, an inmate, lives at the maximum-security McPherson Unit. Kenneth
L. DeWitt oversaw the Principles and Applications for Life program there. In 2000,
Arnett began in the PAL program. In 2001, DeWitt became the Chaplain there. The
same year, Arnett began working as a PAL clerk in his office. ADC policy allowed
DeWitt to be alone in his office with female inmates. In September 2014, DeWitt
resigned as Chaplain.
1 The Honorable Kristine G. Baker, Chief Judge, United States District Court
for the Eastern District of Arkansas.

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From 2010 until he resigned, DeWitt sexually assaulted Arnett in his office,
once a week, at the same time, and on the same day each week. He sexually assaulted
two other inmates in the same, regularly scheduled manner. In 2016, DeWitt pled
guilty to sexual assault in the third degree.
Arnett sued Faust, Budnik, and Dykes in their individual capacities under 42
U.S.C. § 1983. She alleged they failed to supervise DeWitt and failed to protect her
from his weekly sexual assaults. They moved for summary judgment, invoking
qualified immunity. The district court concluded that a reasonable jury could find
they were aware of DeWitt’s sexual abuse and failed to protect Arnett. As for the
failure-to-supervise claims, the court found a genuine issue of material fact as to
Faust’s and Budnik’s authority over him. They appeal.
II.
Summary judgment is proper if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Generally, “this court lacks jurisdiction over a denial of summary judgment
because such an order is not a final decision.” Morgan v. Robinson, 920 F.3d 521,
523 (8th Cir. 2019) (en banc) (internal quotation marks omitted). Qualified
immunity, however, “is effectively lost if a case is erroneously permitted to go to
trial.” Faulk v. City of St. Louis, 30 F.4th 739, 744 (8th Cir. 2022), quoting Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985). See Krout v. Goemmer, 583 F.3d 557, 564
(8th Cir. 2009) (denial of qualified immunity at summary judgment is a final
decision reviewable “through an interlocutory appeal under the collateral order
doctrine”). “This court reviews de novo denials of summary judgment based on
qualified immunity.” Morgan, 920 F.3d at 523.
The district court at summary judgment determines “whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The “facts must be viewed in the light most favorable to the nonmoving party only
if there is a genuine dispute as to those facts.” Torgerson v. City of Rochester, 643

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F.3d 1031, 1042 (8th Cir. 2011) (en banc) (internal quotation marks omitted),
quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009). A genuine dispute over a
fact exists only when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Torgerson, 643
F.3d at 1042, quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000).
After a denial of summary judgment based on qualified immunity, this court
has “jurisdiction to resolve a dispute concerning an abstract issue of law relating to”
the defense. Pool v. Sebastian Cnty., 418 F.3d 934, 943 (8th Cir. 2005) (cleaned
up). This court’s review is “limited to determining whether all of the conduct that
the district court deemed sufficiently supported for purposes of summary judgment
violated the plaintiff’s clearly established” constitutional rights. Thompson v. City
of Monticello, 894 F.3d 993, 997–98 (8th Cir. 2018). This court may review a
challenge about “what was known to a person who might be shielded by qualified
immunity” to determine if such facts “would inform a reasonable actor that his
actions violate an established legal standard.” Pool, 418 F.3d at 943. However, this
court lacks jurisdiction to review a sufficiency-of-the-evidence claim cloaked in
qualified-immunity garb. Taylor v. St. Louis Cmty. Coll., 2 F.4th 1124, 1127 (8th
Cir. 2021). See Pool, 418 F.3d at 943 (“A district court’s determination of
evidentiary sufficiency is not subject to an interlocutory appeal . . . simply because
the determination occurs in a qualified immunity case.”).
The defendants argue that the district court erred in denying summary
judgment. All three defendants challenge the denial for the failure-to-protect claims,
and Faust and Budnik challenge the denial for the failure-to-supervise claims.
The doctrine of qualified immunity protects public officials and officers from
§ 1983 claims when their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Mullenix v.

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Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted), quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009). To overcome qualified immunity, a plaintiff
must show (1) the presented facts “make out a violation of a constitutional or
statutory right,” and (2) “that right was clearly established at the time of the
defendant[s’] alleged misconduct.” Morgan, 920 F.3d at 523. This court need not
examine whether Arnett’s constitutional rights were clearly established because the
defendants failed to raise the issue in their briefing or at oral argument. See United
States v. Grace, 893 F.3d 522, 525 (8th Cir. 2018) (an argument not raised in the
opening brief is waived). This court thus addresses only whether the facts
demonstrate a violation of the Eighth Amendment.
III.
Arnett’s failure-to-protect claim has two components: an objective
component, which examines the substantial risk of harm to the inmate, and a
subjective component, which examines the deliberate indifference of the prison
official to that risk. See Tucker v. Evans, 276 F.3d 999, 1001 (8th Cir. 2002).
The objective component “ensures that the deprivation is sufficiently serious
to amount to a deprivation of constitutional dimension.” Lenz v. Wade, 490 F.3d
991, 995 (8th Cir. 2007). “A risk of sexual assault is ‘substantial’ if it occurs with
sufficient frequency that prisoners are put in reasonable fear for their safety.” Dean
v. Bearden, 79 F.4th 986, 989 (8th Cir. 2023) (cleaned up) (emphasis added). Here,
it is undisputed that DeWitt’s frequent sexual abuse posed a substantial risk of
serious harm to Arnett.
The subjective component requires that the prison officials have a sufficiently
culpable state of mind. See Farmer v. Brennan, 511 U.S. 825, 835–40 (1994)
(finding “punishment” under the Eighth Amendment where recklessness is “more
blameworthy than negligence,” but “less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result”); Vandevender v. Sass,
970 F.3d 972, 978 (8th Cir. 2020) (“[A]n official’s failure to alleviate a significant

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risk that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of Eighth Amendment
punishment.”), quoting Farmer, 511 U.S. at 838; Kulkay v. Roy, 847 F.3d 637, 643
(8th Cir. 2017) (“This court has repeatedly held mere negligence or inadvertence
does not rise to the level of deliberate indifference.”). For deliberate indifference,
“the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837.
“The showing of actual knowledge is a ‘question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence.’” Krout, 583 F.3d at 567, quoting Farmer, 511 U.S. at 842. “An obvious
risk of a harm justifies an inference a prison official subjectively disregarded a
substantial risk of serious harm to the inmates.” Lenz, 490 F.3d at 995, citing Hope
v. Pelzer, 536 U.S. 730, 738 (2002). While “[a] single incident, or a series of isolated
incidents, usually provides an insufficient basis upon which to assign supervisor
liability,” “as the number of incidents grow, and a pattern begins to emerge, a finding
of tacit authorization or reckless disregard becomes more plausible.” Howard v.
Adkison, 887 F.2d 134, 138 (8th Cir. 1989) (emphasis added).
At issue here is whether the record, viewed most favorably to Arnett, raises a
genuine dispute about the subjective component of her failure-to-protect claims, that
is, whether the defendants were deliberately indifferent to DeWitt’s sexual assault.
See Farmer, 511 U.S. at 834–43.
IV.
The defendants contend that the facts do not show deliberate indifference but
are only “speculation” and “conjecture.” The record, viewed most favorably to
Arnett, shows a violation of the defendants’ duty to protect her against DeWitt’s
sexual abuse, of which they were aware.

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A.
The district court found the following facts adequately supported:
DeWitt sexually assaulted Arnett on a weekly basis from December 2010 until
September 2014 (until the day he was placed on leave), at the same time, on the same
day each week. He similarly assaulted two other inmates. One swore that DeWitt
called for her early in the morning during the prisoner count. Once in his office, he
would re-arrange items to obscure both windows before sexually assaulting her.
DeWitt’s method was corroborated by Arnett’s contemporaneous statement and a
civilian-volunteer’s email summarizing the complaints of two victims. In her
statement, Arnett stated she caught DeWitt having sexual relations with two other
victims. Yet another inmate told investigators she detected a change in the three
victims’ behaviors after they were sexually abused by DeWitt.
The district court examined the Department of Justice’s 2003 investigation of
McPherson. The DOJ there identified a failure to fully comply with the Prison Rape
Elimination Act, 34 U.S.C. § 30301 et seq. The ADC then entered into a
Memorandum of Agreement with the DOJ to resolve the issues related to sexual
assault at the unit. The district court found that between 2012 and 2015, the ADC
neither completely complied with PREA nor conducted official PREA audits. A
2015 DOJ press release showed continued concern over sexual abuse and
harassment at McPherson.
The district court considered other accusations of sexual misconduct at
McPherson. Arnett swore about multiple accusations of sexual harassment against
DeWitt before 2010. She stated that an inmate accused DeWitt of sexual assault in
2001 or 2002. In 2006, a PAL clerk complained about the sexual nature of DeWitt’s
teachings, including explicit discussions of sexual behavior.
Defendant Faust claims she did not know of any allegations against DeWitt
before December 29, 2014 (the date Arnett first tried to make a statement about

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DeWitt’s abuse to the Warden). The district court, however, identified evidence that
Faust oversaw the Chaplains, and that it was her responsibility to monitor DeWitt
from 2014 to 2015. Faust acknowledged that ADC policy prohibited the obstruction
of the PREA window. However, she gave conflicting testimony about non-PREA
windows, saying: first, that the prohibition on obstructing windows applied only to
PREA windows, but later, that windows were not to be obstructed at all. Faust
confirmed, at some time in 2010, that her office was 25 or 30 feet from DeWitt’s, in
the same hallway, and on the same side of the hallway. Faust admitted she saw
DeWitt alone with female inmates in his office. A reasonable jury could find she
was aware from 2010 through 2014 that DeWitt had regular, early-morning visits
alone with inmates.
The district court found a genuine dispute of material fact about whether Faust
saw DeWitt’s obstructed windows, or whether she saw DeWitt sexually assault the
victims if the windows were not obstructed. Two victims swore that, for years,
DeWitt covered the window to his office when he assaulted them weekly. A
reasonably jury could conclude Faust was deliberately indifferent to DeWitt’s sexual
assault.
Defendant Budnik was a Deputy Warden of security, classification, and field
operations at McPherson from June 2014 to August 2015. He testified he was
“always doing rounds” of the facility looking for issues, which took him by DeWitt’s
office. Budnik’s office was in the same hallway as DeWitt’s, “fifty paces” away.
He testified that PREA windows were not to be obscured, but that the non-PREA
windows could be obstructed. Budnik confirmed that if a non-PREA window was
completely covered, he would do nothing about it. Budnik testified he never saw
DeWitt obscure his PREA window, but could not recall if DeWitt ever blocked his
non-PREA window. Arnett swore that Budnik once walked in right after DeWitt
had raped her, and was adjusting his pants and acting strangely. Based on the
reasonable inferences, a reasonable jury could conclude that Budnik was deliberately
indifferent to DeWitt’s frequent sexual assault of Arnett.

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Finally, Dykes was a Captain at McPherson from 2010 to 2017, making daily
rounds through the hallway in front of DeWitt’s office. Some days, she walked past
DeWitt’s office several times. Dykes was also responsible for making sure staff
office windows were unobstructed in compliance with PREA and ADC policy. She
confirmed that, according to ADC policy, PREA windows had to be completely
uncovered, but it would not have concerned her if a non-PREA window was
obscured, even if a male staff member was meeting with female inmates. A
reasonable jury could conclude that Dykes saw DeWitt obscure the view into his
office and was deliberately indifferent to DeWitt’s sexual abuse of McPherson
inmates.
B.
This court lacks jurisdiction to review the defendants’ challenges to the
sufficiency of the district court’s findings and inferences about, among other
contested issues, the 2003 DOJ investigation, ADC’s PREA policy, ADC’s
investigations of sexual misconduct, the obstruction of DeWitt’s windows, or the
defendants’ actual knowledge of DeWitt’s abuse. Krout, 583 F.3d at 567. This court
cannot review these points that “challenge only the district court’s determination that
the pre-trial record sets forth a genuine issue of fact.” Pool, 418 F.3d at 944 (cleaned
up). And nothing in this record “clearly contradicts the district court’s factual
determinations or [Arnett]’s assertion[s]” on these points. Taylor, 2 F.4th at 1127.
This court cannot “cast aside the district court’s factual findings, analyze the factual
record, and resolve genuine factual disputes against the non-moving party.” Id.
This court has jurisdiction to review whether the facts the district court found
adequately supported by the record vindicate its legal conclusion. See Kong ex rel.
Kong v. City of Burnsville, 960 F.3d 985, 991 (8th Cir. 2020). Viewing the facts
most favorably to Arnett, a reasonable jury could find the defendants were
deliberately indifferent to DeWitt’s abuse, violating her clearly established Eighth
Amendment rights. See Farmer, 511 U.S. at 834–36, 844–45; Young v. Selk, 508
F.3d 868, 873–74 (8th Cir. 2007). Cf. Tucker, 276 F.3d at 1002–03. The district

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court did not err in denying the defendants’ motions for summary judgment against
Arnett’s failure-to-protect claims.
V.
Faust and Budnik argue that qualified immunity bars the failure-to-supervise
claims. They argue neither of them directly supervised DeWitt nor were above him
in the chain of command.
A supervisor may be liable under § 1983 if “his failure to properly supervise
and train the offending employee caused the constitutional violation at issue.”
Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (internal quotation marks
omitted). A failure-to-supervise claim faces a rigorous standard that the superior (1)
had notice of a pattern of conduct by the subordinate that violated a clearly
established constitutional right; (2) was deliberately indifferent to or authorized such
violations; (3) failed to take remedial action; and (4) that failure caused the inmate’s
injury. See Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010); S.M. v. Krigbaum,
808 F.3d 335, 340 (8th Cir. 2015). “The supervisors must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might
see.” Ripson v. Alles, 21 F.3d 805, 809 (8th Cir. 1994), quoting Jones v. City of
Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Even if the supervisors are not involved
in the day-to-day operations that led to the incident at issue, personal involvement
may be found if the supervisors were involved in “creating, applying, or interpreting
a policy that gives rise to unconstitutional conditions.” Nixon, 747 F.3d at 543
(internal quotation marks omitted). See generally Wadsworth v. Nguyen, 129 F.4th
38, 63 (1st Cir. 2025) (to qualify as a “supervisor,” one “must have had some degree
of control over” the offending official (cleaned up)).
Faust and Budnik emphasize that they lacked the requisite knowledge to
notice a pattern of unconstitutional acts and did take some remedial action. This
court lacks jurisdiction to review Faust’s and Budnik’s challenges to the district
court’s findings and inferences about their supervisory role and remedial actions.

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See Krigbaum, 808 F.3d at 340; Pool, 418 F.3d at 943–44. Construing the record
most favorably to Arnett, a reasonable jury could conclude that Faust and Budnik
had authority to supervise and give orders to DeWitt and that they failed to take
remedial action. And, viewing the record as described above, the district court found
a genuine issue of material fact about Faust’s and Budnik’s deliberate indifference
to DeWitt’s frequency and pattern of sexual assault.
The district court did not err in denying summary judgment on the failure-to-
supervise claims.
* * * * * * *
The judgment is affirmed.
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