FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         February 5, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
LADONA A. POORE,

      Plaintiff - Appellee,

v.                                                         No. 16-5164
                                               (D.C. No. 4:11-CV-00797-JED-TLW)
STANLEY GLANZ, in his individual                           (N.D. Okla.)
capacity; VIC REGALADO, in his official
capacity,*

      Defendants - Appellants.
                      _________________________________

                            ORDER AND JUDGMENT**
                         _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and LUCERO, Circuit Judges.
                 _________________________________

      In 2010, detention officer Seth Bowers sexually abused then-seventeen-year-

old Ladona Poore while she was incarcerated at the David L. Moss Criminal Justice

Center in Tulsa, Oklahoma. Poore brought Eighth Amendment claims under 42

U.S.C. § 1983 against the Tulsa County sheriff, Stanley Glanz, in his individual and




      *
         Pursuant to Fed. R. App. P. 43(c)(2), Vic Regalado, the current Tulsa County
sheriff, is automatically substituted for former Tulsa County sheriff Michelle
Robinette as an appellant.
      **
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
official capacities,1 alleging that the jail provided inadequate housing, staffing, and

supervision for the area of the facility where juvenile female inmates were housed.

Following trial, the jury returned a verdict in favor of Poore, awarding $25,000 in

damages. The district court denied a post-verdict motion for judgment as a matter of

law (“JMOL”) or a new trial.

      Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Viewed in the light

most favorable to Poore, the evidence shows that Glanz knew the policies he

implemented with respect to juvenile female inmates created an excessive risk of

sexual assault and that he was deliberately indifferent to that risk. Although Glanz

acknowledged that juvenile female inmates were at a heightened risk of sexual abuse,

he chose to house them in an area of the jail that was visually isolated, unmonitored,

and often staffed by only one male officer, and where a prior incident of misconduct

had occurred. He did so despite written policies intended to prevent sexual abuse

that required direct supervision of juvenile inmates and prohibited male officers from

entering the cell of juvenile female inmates alone. We conclude that the evidence is

sufficient to support the jury’s conclusions that Glanz caused a violation of Poore’s

constitutional rights and that he acted with a sufficiently culpable state of mind. We

further conclude that the contours of the constitutional right at issue were sufficiently



      1
        After Michelle Robinette replaced Glanz as acting Tulsa County sheriff, she
took his place as the defendant with respect to Poore’s official capacity claim
pursuant to Fed. R. Civ. P. 25(d). As noted in the caption, Robinette was
subsequently replaced by Vic Regalado.

                                            2
clear that Glanz is not entitled to qualified immunity. We reject a number of other

evidentiary arguments advanced on appeal.

                                            I

                                           A

      We review a district court’s denial of JMOL de novo, drawing all reasonable

inferences in favor of the non-moving party. Hardeman v. City of Albuquerque, 

, 1112 (10th Cir. 2004). In conducting this review, we cannot “weigh the

evidence, pass on the credibility of the witnesses, or substitute our conclusions for

th[ose] of the jury.” Medlock v. Ortho Biotech, Inc., 

, 549 (10th Cir.

1999) (quotation omitted). “[W]e may find error only if the evidence points but one

way and is susceptible to no reasonable inferences supporting the party for whom the

jury found.” Ralston Dev. Corp. v. United States, 

, 512 (10th Cir. 1991)

(quotation omitted). “We review for abuse of discretion a district court’s denial of a

motion for a new trial under Rule 59(a).” M.D. Mark, Inc. v. Kerr-McGee Corp., 

, 762 (10th Cir. 2009) (citation omitted). If “a new trial motion asserts that

the jury verdict is not supported by the evidence, the verdict must stand unless it is

clearly, decidedly, or overwhelmingly against the weight of the evidence.” Anaeme

v. Diagnostek, Inc., 

, 1284 (10th Cir. 1999) (quotation omitted).

      In contrast to the deferential standard we apply in reviewing a jury’s verdict,

we review a district court’s doctrinal analysis regarding qualified immunity de novo.

Maestas v. Lujan, 

, 1007 (10th Cir. 2003). If a defendant asserts

qualified immunity, “the plaintiff has the heavy burden of establishing: (1) that the

                                           3
defendant’s actions violated a federal constitutional or statutory right; and (2) that the

right violated was clearly established at the time of the defendant’s actions.” Greene

v. Barrett, 

, 1142 (10th Cir. 1999).

      The Eighth Amendment’s prohibition of cruel and unusual punishment

imposes a duty on prison officials to provide humane conditions of confinement,

including “reasonable measures to guarantee the safety of the inmates.” Farmer v.

Brennan, 

, 832 (1994) (quotation omitted). However, this minimum

standard does not impose constitutional liability on prison officials for every injury

an inmate suffers during detention. First, the alleged injury must be “sufficiently

serious.” 

(quotation omitted). It is undisputed that sexual assault satisfies

this objective component of an Eighth Amendment claim. See Hovater v. Robinson,

, 1068 (10th Cir. 1993) (“[A]n inmate has a constitutional right to be

secure in her bodily integrity and free from attack by prison guards.”).

      Second, the prison official must have had “a sufficiently culpable state of

mind” amounting to “deliberate indifference.” 

(quotation

omitted). Under this standard, “a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane conditions of confinement unless

the official knows of and disregards an excessive risk to inmate health or safety.” 

The official must actually 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.” 

failure to alleviate a significant risk of which he was

unaware, no matter how obvious the risk or how gross his negligence in failing to

                                            4
perceive it, is not an infliction of punishment and therefore not a constitutional

violation.” Tafoya v. Salazar, 

, 916 (10th Cir. 2008).

       This mens rea standard extends to Eighth Amendment claims brought against

supervisors. To prevail on a supervisory liability claim, there must be an

“affirmative link between the constitutional deprivation and the supervisor’s actions.”

Keith v. Koerner, 

, 1188 (10th Cir. 2013) (“Keith I”). A supervisor is

directly responsible for an Eighth Amendment violation if the plaintiff can show:

“(1) personal involvement, (2) sufficient causal connection, and (3) culpable state of

mind.” Dodds v. Richardson, 

, 1195 (10th Cir. 2010). Similarly,

because we have recognized that “[s]uing individual defendants in their official

capacities under § 1983 . . . is essentially another way of pleading an action against

the county or municipality they represent,” Porro v. Barnes, 

, 1328

(10th Cir. 2010) (citations omitted), an official capacity claim can only be established

if the official’s own policies led to the deprivation of the plaintiff’s constitutional

rights. See Monell v. Dep’t of Soc. Servs., 

, 691 (1978) (“[A]

municipality cannot be held liable under § 1983 on a respondeat superior theory.”

(italics omitted)).

                                            B

       With this framework in mind, we turn to the evidence presented at trial. Poore

was housed at the Tulsa County jail from January to April of 2010. During that time

period, she occupied one of the few cells in the north wing of the jail’s medical unit.



                                             5
The cell was located near a nurses’ station, but curtains obscured the view from the

nurses’ station to the door to Poore’s cell. The area had no surveillance cameras.

       Poore testified that during the early portion of her detention, Bowers began

groping her. She stated that he entered her cell and engaged in this type of

misconduct more than fifty times. The sexual abuse escalated during the course of

her incarceration. Bowers watched Poore in the shower, asking if she was done and

then laughing at her. He later exposed himself to Poore and demanded oral sex.

Bowers engaged in oral sex with her on approximately ten occasions, and sexual

intercourse approximately five times. Poore did not inform jail staff of the abuse

because Bowers convinced her they would both face consequences if she reported

him.

       After Poore was released, jail officials received a report about possible

misconduct by Bowers. A material witness who had also been housed in the north

wing informed an investigator, Billy Joe McKelvey, that Bowers would enter Poore’s

cell and stay anywhere from five to twenty minutes at a time. The witness also

informed McKelvey that another officer knew about these “inappropriate relations.”

McKelvey met with the officer, who conceded he was aware of the misconduct and

agreed to write a report. However, McKelvey explained that he had to engage the

officer “pretty bluntly because he did not want to provide me this information.”

       During McKelvey’s investigation, two other detention officers reluctantly

admitted they heard from an inmate that “an employee of the sheriff’s office was

having relations with the females on the . . . north end of the medical unit.” The

                                           6
inmate explained that Bowers entered the cells of juvenile female inmates by himself

and stayed for approximately twenty minutes. A juvenile female inmate who was

housed across from Poore informed McKelvey that Bowers entered both of their

cells.

         At the time of these events, Glanz was responsible for overseeing operation of

the Tulsa County jail. Glanz recognized that rates of sexual abuse are much higher

for incarcerated juveniles than for incarcerated adults. He acknowledged that girls

are disproportionately represented among sexual abuse victims. And he agreed with

Poore’s counsel that “youth incarcerated with adults are probably at the highest risk

of sexual abuse.”

         Glanz further agreed that eliminating “blind spots” is key to effective

supervision and that it is “critical” that individuals within the jail are aware that their

conduct will be monitored or subject to surveillance. He stated that juvenile male

inmates are housed in a “direct supervision” unit because very few inmate assaults

occur in such settings. Female juvenile inmates, however, were not placed in a direct

supervision environment. Glanz conceded that this placement decision violated his

own policies. He further admitted that jail policies prohibiting a male officer from

entering the cell of a juvenile female alone were instituted to protect those inmates

from sexual assault, and that the policy was disregarded.

         Glanz also admitted he was aware of a prior incident in which a male nurse

had been watching a juvenile female inmate shower in the medical unit. Although he

conceded that better monitoring in that unit could discourage future incidents, Glanz

                                             7
had not made any change to the manner in which juvenile female inmates were

supervised after this prior incident.

                                          II

                                           A

      On appeal, defendants argue that Poore’s Eighth Amendment claim fails

because she merely established a generalized risk of sexual assault rather than

identifying any threat Bowers posed to herself. But an “official’s knowledge of the

risk need not be knowledge of a substantial risk to a particular inmate, or knowledge

of the particular manner in which injury might occur.” 

(citing 

). Nor must a defendant be aware of the “specific

[individual] who eventually committed the assault . . . and it 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.” 

.

      Poore does not argue that all the inmates in the jail faced a general risk of

sexual assault. Instead, she contends that Glanz was deliberately indifferent to a

specific subset of individuals incarcerated in the jail: juvenile female inmates housed

in the north wing of the medical unit—a small, clearly defined group. At the time of

the incidents at issue, there were two or three such inmates. At most, six juvenile

female inmates were present at any one time during Glanz’s tenure. Poore presented

evidence showing that Glanz was subjectively aware that these inmates were at a

high risk of sexual assault and that conditions in the north wing were especially

                                           8
dangerous. The jury permissibly inferred that he was aware of the specific risk faced

by Poore and other juvenile female inmates housed in the north wing. See generally

(noting that “because of petitioner’s youth and feminine

appearance,” respondents admitted that he was “likely to experience a great deal of

sexual pressure in prison” (quotation omitted)).

      Defendants further argue that they cannot be liable because no juvenile female

inmate housed in the north wing of the medical unit had ever been sexually assaulted

prior to Poore. Many of our prior cases in which a supervisor was held liable for

sexual misconduct involved prior instances of abuse. See, e.g., 

; Gonzales v. Martinez, 

, 1182-85 (10th Cir. 2005). But Poore did

present evidence of a prior instance of sexual misconduct in the medical unit. Glanz

was aware that a male nurse employed by the jail inappropriately watched a fifteen-

year-old female inmate while she showered in the medical unit. He also conceded

that this type of misconduct could have been discouraged by changes to the jail’s

monitoring policy for that area. Despite his knowledge of this prior instance of

sexual misconduct, Glanz did not make any changes to the manner in which juvenile

female inmates were housed or how the medical unit was supervised, staffed, or

monitored.

      Nevertheless, defendants argue that the shower incident was distinct enough

from the events at issue in this case that it could not establish deliberate indifference.

This argument ignores the fact that during the course of Bowers’ escalating

misconduct, he engaged in precisely the same action, watching Poore while she

                                            9
showered. In any event, we reject the suggestion that the only possible prior incident

that could have alerted jail officials to the risk Poore faced would be a prior sexual

assault of a juvenile female inmate by a detention officer in the north wing of the

medical unit. As appellants themselves point out, the population of juvenile female

inmates housed in the jail was very small. Defendants thus ask us to reverse a jury

verdict based on the notion that, in an exceedingly small sample size, a prior incident

must be identical rather than merely similar to the misconduct at issue to demonstrate

a sufficiently serious risk. This we cannot do. As we have previously recognized,

instances of sexual assault often begin with lesser violations of prison policy and are

thus “relevant to the totality of the circumstances at [a prison] that may have

contributed to the sexual misconduct.” Keith v. Koerner, 

, 842 (10th

Cir. 2016) (“Keith II”).

      “Whether a prison official had the requisite knowledge of a substantial risk is a

question of fact . . . .” 

. We do not suggest that the shower

incident, standing alone, would place every reasonable prison official on notice of a

substantial risk. Instead, given the evidence presented in this case—including

Glanz’s admissions of the dangers at issue—we conclude that the jury acted within

its discretion when it determined that Glanz was subjectively aware of Poore’s risk of

sexual assault in the north wing of the medical unit and that his decision to house her

there evinced deliberate indifference.




                                           10
                                            B

      For similar reasons, we reject the argument that defendants are entitled to

qualified immunity because this court has not previously held that the precise

combination of policies implemented by Glanz constituted deliberate indifference.

We have recognized “it is clearly established that a prison official’s deliberate

indifference to sexual abuse by prison employees violates the Eighth Amendment.”

Keith 

. And because “a prison official’s failure to protect an

inmate from a known harm may constitute a constitutional violation,” we have

further held it to be clearly established that inmates possess “a constitutional right to

expect” that jail officials will “reasonabl[y] protect[]” them from such abuse. Keith

(quotation and citation omitted).

      Principles regarding supervisory liability in this context are also firmly

established. In Dodds, we explained that “the clearly established prong of the

qualified immunity inquiry asks whether the contours of the right the plaintiff claims

the defendant violated are sufficiently clear that a reasonable official would

understand that what he is doing violates that 

(quotations

and alteration omitted). We concluded it was “clearly established by 2007 that

officials may be held individually liable for policies they promulgate, implement, or

maintain that deprive persons of their federally protected rights.” 

      We have held corrections supervisors liable for failing to protect inmates from

sexual abuse from staff on several occasions. In Keith I, we affirmed the denial of

qualified immunity to a warden following sexual misconduct by an officer toward a

                                           11
female inmate who was participating in a vocational training 

. We concluded that prior instances of sexual misconduct and undue familiarity

along with “structural policy problems” relating to “the vocational training program

and the insufficient use of cameras to monitor inmates and staff” suggested that the

warden disregarded a substantial risk of such abuse despite being aware of the

problem. 

In Tafoya, we concluded that a sheriff was liable for failing to

prevent sexual assaults at a jail for several reasons, including: maintaining a staff

who “did not report rapes, assaults, and illegal activities”; failing to enforce a “no

contact policy . . . because there was not always a female detention officer on duty”;

and failing to fully eliminate “blind spots where assaults could, and did, take place”

when coupled with knowledge “that having some cameras in the jail was not enough

to deter assaults in unmonitored 

. And in Keith II, we

identified, among other factors that put the prison warden on notice, three prior

incidents of “undue familiarity” and “opportunities for employees to be outside of

other people’s eyesight, outside of cameras, inside of rooms with individual inmates”

in the area of the facility where the incident 

(quotation

omitted).

      Defendants rely heavily on our prior decisions holding that merely placing a

female inmate in the custody of a single male guard does not amount to a

constitutional violation. See Barney v. Pulsipher, 

, 1311 (10th Cir.

1998); 

. In those cases, “however, a constitutional violation

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

                                           12
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.” 

;

see also Keith 

(noting that, in Barney, “the plaintiff presented no

evidence of the actual knowledge required for § 1983 liability for deliberate

indifference” and that, in Hovater, plaintiff’s claim was based on nothing more “than

the fact she was a female inmate”). In this case, Poore has identified particular

conditions in the north wing of the medical unit and adduced evidence that enabled

the jury to find that Glanz was subjectively aware that those conditions constituted an

excessive risk. See Keith 

(rejecting reliance on Barney and

Hovater if prison official has “actual knowledge” of threat).

      In addition, defendants correctly point out that other facts not present in this

case supported a finding of deliberate indifference in Keith I, Tafoya, and Keith II.2

But the qualified immunity analysis is not “a scavenger hunt for prior cases with

precisely the same facts”; the relevant inquiry is “whether the law put officials on fair

notice that the described conduct was unconstitutional.” Casey v. City of Fed.

Heights, 

, 1284 (10th Cir. 2007) (quotations omitted). “We cannot find

      2
         Defendants place special emphasis on the general lack of discipline at the
facilities at issue in these cases, in contrast to a “zero tolerance” policy they contend
was indisputably present at the Tulsa County jail. See 

(official may be “free from liability” if he “responded reasonably to the risk, even if
the harm ultimately was not averted”). But the record does not clearly demonstrate
that such a policy was enforced. See Keith 

(“[E]ven with policies
in place to respond to misconduct, such policies may be empty gestures without
corresponding supervision and a legitimate threat of discipline for infractions.”
(quotation and alteration omitted)). Three officers were aware of the sexual
misconduct and failed to report it until confronted during McKelvey’s investigation.
There is no evidence that these individuals were ever sanctioned.
                                           13
qualified immunity wherever we have a new fact pattern.” 

of the

conditions identified by Poore taken individually would not constitute a clearly

established violation of Poore’s Eighth Amendment rights, the confluence of factors

in this case impels us to affirm the district court’s denial of qualified immunity. See

Keith 

(“[W]e must consider the conditions of confinement as a

whole.” (quotation omitted)). A reasonable official in Glanz’s position, who had his

subjective knowledge of the dangers posed by conditions in the north wing, would

have been on fair notice that his conduct was unlawful.

                                           C

      We also affirm the district court’s denial of JMOL as to Poore’s official

capacity claim. Because an official capacity claim “is essentially another way of

pleading an action against the county or municipality [the official] represent[s],”

, we consider whether the Monell factors are satisfied. Under

that test, “a plaintiff asserting a § 1983 claim must show 1) the existence of a

municipal policy or custom and 2) a direct causal link between the policy or custom

and the injury alleged.” Mocek v. City of Albuquerque, 

, 933 (10th Cir.

2015) (quotation omitted).

      A policy or custom may take a variety of forms, including:

      (1) a formal regulation or policy statement; (2) an informal custom amounting
      to a widespread practice that, although not authorized by written law or
      express municipal policy, is so permanent and well settled as to constitute a
      custom or usage with the force of law; [or] (3) the decisions of employees with
      final policymaking authority . . . .



                                           14
Bryson v. City of Okla. City, 

, 788 (10th Cir. 2010) (quotations and

alteration omitted). For the same reasons we have concluded that the jury

permissibly found Glanz liable on Poore’s supervisory liability claim, we uphold its

verdict on her official capacity claim. A jury could have concluded in light of the

evidence presented that the jail’s policy as to housing juvenile females directly

caused the sexual assaults Poore endured.3

                                           III

      Defendants also raise a number of evidentiary challenges on appeal. A district

court’s evidentiary rulings are reviewed for abuse of discretion. Cartier v. Jackson,

, 1048 (10th Cir. 1995). To warrant a new trial, evidentiary errors must

“affect a party’s substantial rights.” Tanberg v. Sholtis, 

, 1162 (10th

Cir. 2005).

      First, defendants contend that the district court erred in refusing to permit

Bowers to testify live, as opposed to by deposition, at trial. It is uncontested that at

the time of his deposition, and at the time of trial, Bowers resided in Illinois, much

farther than one hundred miles from the district court in Oklahoma. As a result, he

was “unavailable” to testify at trial. See Fed. R. Civ. P. 32(a)(4)(B). The pretrial

      3
         We thus affirm the district court’s denial of defendants’ motion for JMOL on
both the individual and official capacity claims. For the same reasons, we affirm the
denial of defendants’ motion for a new trial to the extent that it is grounded on
insufficiency of the evidence. See Lompe v. Sundridge Partners, LLC, 

, 1062 (10th Cir. 2016) (“[a]s with the JMOL standard, the trial court must view
the evidence in the light most favorable to the prevailing party” when evaluating a
motion for a new trial); Miller v. Eby Realty Grp. LLC, 

, 1110 (10th
Cir. 2005) (affirming district court’s denial of motion for JMOL or in the alternative
for a new trial where the “same three issues” were raised).
                                           15
order listed Bowers as a witness by deposition. However, shortly before trial,

defendants sought to call him live, apparently to withdraw his prior invocations of the

Fifth Amendment during the deposition. The district court reasonably concluded that

such conduct would be unfairly prejudicial. See Sec. & Exch. Comm’n v. Graystone

Nash, Inc., 

, 190-91 (3rd Cir.1994) (noting that “because the [Fifth

Amendment] privilege may be initially invoked and later waived at a time when an

adverse party can no longer secure the benefits of discovery, the potential for

exploitation is apparent” and thus “belated waiver of the privilege could be unfair”).

      Second, defendants object to the district court’s admission of evidence

regarding Bowers’ prior criminal history. A witness’ prior bad acts are generally

inadmissible. See Fed. R. Evid. 608(b). However, “[a]dmission of rebuttal evidence,

particularly when the defendant ‘opens the door’ to the subject matter, is within the

sound discretion of the district court.” United States v. Troutman, 

,

1450 (10th Cir. 1987). During opening statement, counsel for the defendants stated

that Bowers had “not even a speeding ticket in his life.” We rule that the district

court did not abuse its discretion in permitting admission of evidence regarding

Bowers’ criminal history.

      Third, defendants assert that the district court erred in permitting Poore’s

counsel to question an expert witness about another alleged sexual assault of a female

inmate in the jail’s medical unit. During cross-examination, defense counsel asked

questions about that witness’ deposition testimony in a case arising from the incident.

On re-direct, Poore’s counsel elicited additional testimony regarding the other case.

                                          16
Because the district court issued a curative instruction to the jury to disregard this

evidence, we hold that even were it erroneously admitted, defendants’ substantive

rights were not violated as a result. See United States v. Morgan, 

,

1042 (10th Cir. 2014) (holding that “juries are presumed to follow curative

instructions” to disregard evidence).

      Fourth, defendants argue that the district court erred in denying their motion to

permit the jury to view the jail’s medical unit. “Whether the jury is permitted to

view evidence outside the courtroom is a matter for the discretion of the trial court.”

United States v. Culpepper, 

, 883 (10th Cir. 1987). At trial, the jury saw

photographs of the medical unit and heard evidence concerning the structure of this

portion of the jail. And by the time trial commenced, the medical unit had changed

significantly from the time when Poore was incarcerated.4 We conclude that the

district court did not abuse its discretion in denying this request.

      Finally, defendants argue that the trial court erroneously excluded evidence of

the crimes Poore committed. They suggest that admission of this evidence was

necessary because Poore’s counsel cross-examined Glanz and Robinette on the jail’s

policies regarding youthful offenders. By not allowing counsel to explain Poore’s

status as an adult offender, defendants contend the district court prejudiced them.


      4
        Ironically, defendants moved to exclude as an improper subsequent remedial
measure under Fed. R. Evid. 407 evidence that cameras had been added to the jail
since Poore’s release, which the trial court granted. A jury view thus would have
presumably prejudiced the defendants by revealing to the jury the addition of
cameras.

                                            17
We are not persuaded. Weighing against this limited probative value was the danger

of unfair prejudice to Poore. See United States v. Moore, 

, 1223 (10th

Cir. 2005) (noting “the introduction of evidence” of an individual’s “prior crimes

risks significant prejudice”) (quotation omitted). We rule that the district court did

not abuse its discretion in weighing the competing factors and excluding this

evidence.5

                                           IV

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




      5
         Defendants also contend that if we reverse on the merits, we must vacate the
district court’s cost award. Because we reject defendants’ arguments on the merits,
there are no grounds for us to do so.
                                           18