author: MURPHY, Circuit Judge. LOKEN, Circuit Judge, KELLY, Circuit Judge,

text:
    Dennis RYAN, Jr., as trustee for the heirs and next of kin of Jerome Deon Ladette Harrell, Plaintiff-Appellant v. Officer Mary ARMSTRONG; Officer Patrick Culloton; Officer Craig Stowell; Officer Gilbert Michalski; Officer Mark Hill; Officer Joseph Klebs; Sergeant Mark Maslonkowski; Officer Adam Seifferman, individually and in their official capacity; Captain Pam Jensen, individually and in her official capacity; Stearns County, Defendants-Appellees
    No. 16-1341
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: March 7, 2017
    Rehearing and Rehearing En Banc Denied April 19, 2017

      Counsel who presented argument on behalf of the appellant was Kenneth Ubong Udoibok, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Jason Michael Hiveley, of Bloomington, MN.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   MURPHY, Circuit Judge.

In February 2012 Jerome Harrell surrendered to the Stearns County jail in response to outstanding traffic warrants. He was booked and held overnight. During that time he exhibited bizarre and erratic behavior. The following morning corree-tional officers decided to remove Harrell from his cell for a medical assessment. Harrell became unresponsive during the removal procedure and died. The trustee of Harrell’s estate sued Stearns County and various correctional officers (collectively the defendants) under 42 U.S.C. § 1983 for violations of Harrell’s constitutional rights as well as other claims. The district court granted summary judgment to the defendants. We affirm in part, reverse in part, and remand for further proceedings.

I.

Early in the evening of February 23, 2012 Jerome Harrell surrendered to the Stearns County jail in response to outstanding traffic warrants. Although Harrell was initially cooperative with efforts to book him into the jail, the officer who completed Harrell’s initial classification worksheet marked that Harrell had “special needs” and noted that he “appear[ed] high.” During the intake process Harrell also began talking about a shooting that had occurred near St. Cloud State University a few days before. Harrell said he “wanted to help the cops figure [it] out” because “[the cops] think it was him” even though he had heard the suspect in the shooting “was wearing a face mask and that the guy had tattoos on his hands” which Harrell did not. Harrell also mentioned that he had just watched a documentary about the rapper Tupac Shakur and “needed to come clean.” Based on Harrell’s comments during the intake process, a detective from the St. Cloud police department went to the jail at 9:30 pm to meet with him. The meeting lasted approximately one hour; officers noted that Harrell “appeared anxious” after it.

At 11:00 pm that night there was a shift change for the correctional officers. Defendants Mary Armstrong and Patrick Cullo-ton came on duty and were informed at the start of their shift that Harrell appeared high and had exhibited strange behavior. One of the duties of officers at the jail was to perform well being checks (WBCs) evéry half hour on detainees. Armstrong and Culloton observed that Harrell was behaving oddly during their half hour checks from the beginning of their shift. When Armstrong checked on Harrell, she saw him “spring up from his bunk with lunging movements and start moving his body as though he was an animal.” She also said that Harrell made “loud howling and screaming vocals” throughout the night. Culloton stated that Harrell also banged on his cell door. His behavior was disruptive enough that other detainees asked to have him moved or quieted. Neither Armstrong nor Culloton talked to Harrell during their shift, however, nor did they enter his cell. Although they monitored his behavior by regular checks, they did not request any medical assistance. They were relieved by a new shift of officers shortly before 7:00 am and reported Harrell’s behavior to them.

Defendant Mark Hill, one of the officers on the hew shift, checked on Harrell shortly after he came on duty. In the course of his checks, Hill observed Harrell “making loud howling noises and pounding on the door.” He was also “splashing water from the sink all over the cell with a sheet.” At around the same time as Hill made these observations, supervising officer Pam Gacke asked the jail’s medical staff to assess Harrell. Since the medical staff believed that Harrell needed to be placed in a restraint chair during that process, he was removed from his cell by a team of four officers (defendants Craig Stowell, Joseph Klebs, Gilbert Michalski, and Adam Seifermann). At the time the team went to enter Harrell’s cell, it found him completely naked with a wet sheet draped over his head, screaming and banging on the door. Team members made a video of him shortly before his removal from the cell.

The team’s efforts to remove Harrell from his cell were videotaped. When Gacke directed Harrell to back away from his' door and lie on his bunk, he did not comply. Then, as the extraction team entered his cell, Harrell rushed at the first officer. The team attempted to subdue Harrell, but he continued actively resisting and bit one of the officers. During this struggle Harrell was knocked to the floor, and several officers held him down while attempting to place his wrists and ankles in restraints. One twice used a taser in drive stun mode.

Once the officers succeeded in handcuffing Harrell, they used scissors to cut away a sheet he had wrapped around his head. Approximately five minutes after the officers first entered Harrell’s cell, they found he was no longer responsive. They moved him from his cell to a lower level of the jail where staff attempted to revive him until an ambulance arrived. Harrell was transported to the hospital where he was pronounced dead at 10:00 am.

An autopsy found no significant injury or trauma. Harrell’s immediate cause of death was described as “sudden unexpected death during restraint.” An investigator who photographed the interior of Harrell’s cell shortly after his removal noted that “[tjhere was ... a large pool of blood on the floor that had come from a laceration to Jerome Harrell’s head.”

The trustee of Harrell’s estate filed this lawsuit after his death, alleging that individual correctional officers and Stearns County had violated Harrell’s constitutional rights with deliberate indifference to his serious medical needs and excessive force. The individual defendants moved for summary judgment on the basis of qualified immunity. The district court granted them summary judgment after concluding they had not violated Harrell’s constitutional rights. It also granted summary judgment on the trustee’s claims for failure to train or properly supervise and dismissed the trustee’s remaining state law claims without prejudice. The trustee appeals.

II.

Summary judgment is appropriate if “there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). Our review is de novo, construing the facts in the light most favorable to the nonmov-ing party. Letterman v. Does, 789 F.3d 856, 858, 861 (8th Cir. 2015). Before the district court and now again on appeal, the defendants argue that they are entitled to summary judgment on the basis of qualified immunity. A government official is entitled to qualified immunity unless he has violated a clearly established constitutional right. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

A.

The trustee first claims that the district court erred by granting summary judgment to defendants Armstrong and Culloton on the claim that they were deliberately indifferent to Harrell’s serious medical need by failing to seek treatment for him during their shift. The parties agree that Harrell was a pretrial detainee during his time at the jail and that his deliberate indifference claim is based on the due process clause of the Fourteenth Amendment. The standard we apply in this context “borrow[s] from the Eighth Amendment deliberate-indifference standard applicable to claims of prison inmates.” Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). In order to succeed on a deliberate indifference claim, a pretrial detainee must show that he “suffered from an objectively serious medical need” and that one or more defendants “had actual knowledge of that need but deliberately disregarded it.” Id. at 593-94. We have repeatedly observed that ascertaining “[wjhether an official was deliberately indifferent requires both an objective and a subjective analysis.” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014).

The objective component of a claim for deliberate indifference to serious medical needs is satisfied if the medical need in question “is supported by medical evidence, such as a physician’s diagnosis, or is ‘so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.’ ” Bailey, 810 F.3d at 594 (quoting McRaven v. Sanders, 577 F.3d 974, 982 (8th Cir. 2009)). The district court assumed arguendo that Harrell was suffering from an objectively serious medical need during his time at the jail, and the defendants have not contested that. The record shows that Harrell screamed, howled, and banged his head against the door of his cell for some eight hours. In such a situation “even a layperson would easily recognize the necessity for a doctor’s attention.” McRaven, 577 F.3d at 982 (internal quotation marks omitted). We agree with the district court that the key question here is not whether Harrell’s medical need was objectively serious, but whether Armstrong and Culloton “had actual knowledge of [Harrell’s] need but deliberately disregarded it.” Bailey, 810 F.3d at 594.

Establishing the subjective component of a deliberate indifference claim requires showing “a mental state akin to criminal recklessness” and neither negligence nor gross negligence are sufficient. Thompson v. King, 730 F.3d 742, 746-47 (8th Cir. 2013) (internal quotation marks omitted). The requisite mental state may be established through circumstantial evidence, as “a factfinder may determine that a defendant was actually aware of a serious medical need but deliberately disregarded it, from the very fact that the [medical need] was obvious.” Id. at 747 (quoting Vaughn v. Gray, 557 F.3d 904, 908-09 (8th Cir. 2009)). Similarly, an obvi-' ously inadequate response may create “an inference that the officer recognized the inappropriateness of his conduct.” Id. (internal quotation marks omitted).

Evaluating the record before us in the light most favorable to the trustee, we conclude that genuine issues of fact remain on the question of whether defendants Armstrong and Culloton were deliberately indifferent to Harrell’s serious medical needs when they allowed him to scream, howl, and bang against his cell door for eight hours without attempting to talk to him or seek medical intervention. It is undisputed that Armstrong and Culloton knew from the beginning of their shift that Harrell was acting peculiarly and both witnessed him engage in strange and disruptive behavior throughout the night. Other detainees even asked Culloton to move Harrell or to make him quiet down. From this evidence a reasonable factfinder could conclude that Harrell was suffering from an obvious medical need and that the failure to talk with Harrell or seek medical treatment for him was a clearly inadequate response that supports an inference of deliberate indifference. See Thompson, 730 F.3d at 747. A reasonable factfinder could therefore conclude that the defendants violated Harrell’s constitutional rights.

Additional facts in the record would also support that conclusion. For example, supervising officer Gacke heard about Harrell’s behavior shortly after she came on duty at 6:30 am on February 24, 2012 and immediately notified medical staff at the jail that they needed to see him. The fact that she told medical staff at once that Harrell needed attention on the basis of behavior that he had been exhibiting for nearly eight hours could support a finding that Harrell’s medical need was obvious and that the failure by Armstrong and Culloton to seek medical intervention was a deliberately indifferent response. Moreover, the investigator who examined Harrell’s cell shortly after his removal noted that there was “a large pool of blood on the floor that had come from a laceration to Jerome Harrell’s head.” It is unclear when this pool of blood appeared. Viewing the evidence in the light most favorable to the trustee, however, it is possible the laceration and blood resulted from Harrell’s banging his head throughout the night as Culloton observed, and that the laceration and blood appeared while he and Armstrong were on duty. If these facts were established, they could support a factfinder’s determination that Armstrong and Culloton were deliberately indifferent to Harrell’s serious medical needs.

We conclude that the district court erred by granting summary judgment to Armstrong and Culloton on the ground that they were entitled to qualified immunity. Because we conclude that a reasonable factfinder could determine that Armstrong and Culloton were deliberately indifferent to Harrell’s serious medical needs, we must consider whether Harrell’s right to be free of such treatment was clearly established at the time. See Pearson, 555 U.S. at 232, 129 S.Ct. 808. Although the district court did not reach this question, “[w]hether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law” which “must be resolved de novo on appeal.” Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). We may therefore consider whether the constitutional right at issue was clearly established in the first instance. See Canal Ins. Co. v. Ashmore, 126 F.3d 1083, 1086 (8th Cir. 1997).

It is a “longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ ” White v. Pauly, — U.S. -, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 551 (internal quotation marks omitted). A plaintiff need not produce a case directly on point for us to conclude that the right he alleges was violated was clearly established at the time of the violation, however. Id. In all cases, “[t]he dispositive question is whether the violative nature of particular conduct is clearly established ... in light of the specific context of the case.” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citations omitted) (internal quotation marks omitted).

As previously recognized, we “deemed it clearly established by 2008 that a pretrial detainee ... has a right to be free from deliberately indifferent denials of emergency medical care.” Bailey, 810 F.3d at 593. It may be inferred on this record that defendants Armstrong and Culloton were deliberately indifferent to Harrell’s objectively serious medical need. We conclude that the violated right alleged by the trustee was clearly established at the time of these actions. See also Thompson, 730 F.3d at 749 (affirming denial of qualified immunity to a correctional officer in a case where “anyone witnessing [the detainee’s] condition at the jail would have recognized he needed medical attention” and the defendant “did nothing in response”). We therefore reverse the grant of qualified immunity to defendants Armstrong and Culloton on the trustee’s deliberate indifference claims.

B.

The trustee also claims that the district court erred in granting qualified immunity to the defendants on his excessive force claims. We analyze the excessive force claims of pretrial detainees under an objective reasonableness standard. Kingsley, 135 S.Ct. at 2473. Whether the application of force is unreasonable “turns on the ‘facts and circumstances of each particular case.’ ” Id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). We must assess the actions of each officer “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. Factors relevant to assessing the objective reasonableness of force used by officers include:

the relationship between the need for the use of force and the amount of force used; the extent of the plaintiffs injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff wás actively resisting.

Id.

The trustee’s excessive force claim stems from the defendants’ actions in extracting Harrell from his jail cell on the morning of February 24, 2012. The trustee’s excessive force allegations primarily focus on two categories of force used by the defendants: (1) the placing of body weight on Harrell while he was on the ground in a prone position, and (2) the deployment of a taser in drive stun mode on two occasions against Harrell during the extraction. After careful review of the record, including the video of the extraction procedure, we conclude that the defendants’ actions, both individually and in combination, were objectively reasonable under the circumstances. We therefore conclude that the defendants are entitled to qualified immunity on the trustee’s excessive force claim.

Several factors support the foregoing conclusion. Among the most important is the observation that Harrell was actively resisting the extraction procedure by ignoring directives to lie down on his bunk and resisting the defendants’ efforts to subdue him once they entered his cell. The defendants’ testimony about the degree of Harrell’s resistance is corroborated in that multiple defendants purportedly sustained minor injuries, including a defendant who was bitten by Harrell. The video of the extraction shows that the whole procedure lasted no more than five minutes and that the defendants used the weight of their bodies to restrain Harrell for approximately three minutes while he was actively resisting. The defendants’ use of a taser was also restricted to the period in which Harrell was fighting the defendants’ efforts to subdue him. The defendants are alleged to have twice used the taser set to drive stun mode, not an incapacitating mode. See De Boise v. Taser Int’l, Inc., 760 F.3d 892, 895 n.5 (8th Cir. 2014). The autopsy performed after Harrell’s death showed that he had suffered no significant injury or trauma and listed the immediate cause of death as “sudden unexpected death during restraint.”

Under, the totality of these circumstances, we conclude that none of the defendants’ actions, either singly or in combination, amounted to an objectively unreasonable application of force. See Blazek v. City of Iowa City, 761 F.3d 920, 923 (8th Cir. 2014) (noting that we have rejected an excessive force claim where an officer “ ‘forcefully threw’ the plaintiff to the ground, pinned him down, and placed his weight into the plaintiffs back before handcuffing him” even though the plaintiff had only been passively resisting); Carpenter, 686 F.3d at 649-50 (affirming grant of qualified immunity on excessive force claims to officers who twice tased an individual resisting arrest). The trustee has thus failed to show that there are genuine factual issues that remain on the question of whether the defendants violated Harrell’s right to be free from excessive force. We therefore affirm the district court’s grant of summary judgment on the basis of qualified immunity to the defendants on the trustee’s excessive force claim.

C.

The trustee also pled a failure to train claim. The district court granted the defendants’ motion for summary judgment on this claim on the ground that municipal liability cannot attach absent liability on an underlying substantive claim. See Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994). Since we have reversed the grant of summary judgment on the trustee’s substantive deliberate indifference claim, we also reverse on the trustee’s failure to train claim.

The district court declined to exercise supplemental jurisdiction over state law claims pled in the trustee’s complaint and therefore dismissed them without prejudice. See 28 U.S.C. § 1367(c)(3). Since we are remanding some of the trustee’s federal claims for further proceedings, we also vacate the dismissal of the trustee’s state law claims and remand them to the district court.

III.

Accordingly, we affirm in part and reverse in part the judgment of the district court. The case is remanded for further proceedings consistent with this opinion.

LOKEN, Circuit Judge,

concurring in part and dissenting in part.

I concur in Part II.B. of the court’s opinion. I respectfully dissent from Parts H.A., II.C., and III. In my view, the grant of summary judgment in favor of defendants Mary Armstrong and Patrick Cullo-ton should be affirmed for the reasons stated by the district court in its Memorandum Opinion and Order dated January 5, 2016. I would therefore affirm the judgment of the district court.

KELLY, Circuit Judge,

concurring in part and dissenting in part.

I concur in sections II.A and II.C of the court’s opinion, but I respectfully dissent as to II.B. In my view, genuine issues of material fact remain on the trustee’s excessive force claim. I do not dispute that the officers were entitled to use some degree of force to remove Harrell — who was acting oddly, kicking the door, and howling — from his cell. See Kingsley, 135 S.Ct. at 2472-73 (noting that to be held unconstitutional, force knowingly used against pretrial detainee must be objectively unreasonable). But evidence was offered that, viewed in the light most favorable to the trustee, the force the officers continued to use was excessive under the circumstances. See Murchison v. Rogers, 779 F.3d 882, 886-87 (8th Cir. 2015) (noting that our review of the grant of summary judgment is de novo, and we view the evidence in the light most favorable to the non-movant, giving the non-movant the benefit of all reasonable inferences). The video of the extraction showed five to six officers crowding into Harrell’s eight by ten foot cell, in which a bunk and a toilet consume most of the space. Harrell was almost immediately taken to the ground and was quickly handcuffed behind his back. For approximately the first minute and a half of the extraction, although he is heard yelling, Harrell is not visible on the video because he is surrounded by the officers. When Harrell appears, he is face down on the floor, naked and with a wet sheet tightly wrapped around his face; he is still being restrained but he has stopped making any noise at all.

The trustee presented evidence that the officers understood that placing a person in the prone position and applying pressure to his back, as the officers admitted they did here, could cause breathing difficulty. The trustee also presented evidence that the officers recognized that Harrell exhibited symptoms of a condition known as excited delirium syndrome (EDS), which they knew could exacerbate the risk of asphyxiation. While the court views the video as showing Harrell actively resisting for three minutes, in my opinion, the video shows that after about 80 to 90 seconds, Harrell stopped struggling. While their weight was still on Harrell’s back, the officers shackled his ankles with his legs crossed and bent back at the knees. Viewing the evidence in the light most favorable to the trustee, a reasonable jury could find that too many officers entered a small cell and exerted too much pressure on a distraught man lying prone, thus placing him at high risk of asphyxiation. A reasonable jury could likewise find that Harrell’s bizarre behavior warranted the use of multiple officers to restrain him in the manner that they did. But these are factual matters that remain in dispute, and are not for the court to decide at summary judgment.

      . In his opening brief and again at oral argument trustee’s counsel suggested that he had also alleged deliberate indifference by the other individual defendants for their actions immediately prior to and during the extraction of Harrell from his jail cell. This claim was not pled in the trustee’s complaint, however, and was not otherwise presented to the district court. Since we do not consider claims made for the first time on appeal, see Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004), we limit our consideration of the trustee’s deliberate indifference claim to the actions of defendants Armstrong and Culloton.

      . We have previously noted that in this circuit it is an open question whether the standard of the Fourth or the Fourteenth Amendment applies to medical care claims of arrestees. See Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). Since the trustee asserts here that Harrell was a pretrial detainee and "cites authorities applying due process analysis,” we address his arguments accordingly. Carpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012).

      . In Kingsley v. Hendrickson, - U.S. -, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), the Supreme Court rejected .analysis of a defendant’s subjective state of mind in excessive force cases and concluded "the appropriate standard for a pretrial detainee's excessive force claim is solely an objective one.” Id. at 2472-73; see also Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1069-71 (9th Cir. 2016) (en banc) (applying Kingsley to deliberate indifference claims).
      We need not decide the applicability of Kingsley to deliberate indifference claims here; even if subjective analysis of these claims is still warranted we conclude the district court erred in granting summary judgment to the defendants.


source: Caselaw Access Project

author: BENTON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Francisco ORTEGA-MONTALVO, also known as Jerry Ortega, Defendant-Appellant
    No. 16-1899
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 6, 2017
    Filed: March 8, 2017

      Ronna A. Holloman-Hughes, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.
    Brent B. Venneman, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
    Before RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Francisco G. Ortega-Montalvo was convicted of illegally re-entering the United States in violation of 8 U.S.C.§ 1326(a) and (b)(2). The district court sentenced him to 51 months’ imprisonment. He' appeals the denial of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

In 2011, Ortega-Montalvo, a Mexican citizen illegally in the United States, was convicted of aggravated assault after shooting at a police officer. In 2013, he was deported and prohibited from re-entering.

In 2014, the U.S. Department of Homeland Security Investigations (HSI) received a tip that Ortega-Montalvo illegally re-entered the United States and was working at Maria’s Mexican Restaurant in Platte City, under the alias “Jerry Ortega.” According to the tip, he drove a white pickup truck with the Arkansas license plate “087MID.” Special Agent Scott Lindsey corroborated the tip, confirming that the Arkansas plate was registered to Francisco Ortega and that he had been deported after conviction for aggravated assault. Agents visited Maria’s Mexican Restaurant and observed a white truck with the Arkansas license plate in the parking lot.

Based on the corroborated tip, information about Ortega-Montalvo’s illegal status and criminal history, and an online database search revealing an apartment address in Platte 'City, Agent Lindsey and his supervisor decided to locate and arrest him. Officer Lindsey briefed a team of five HSI special agents and two Platte City police officers on Ortega-Montalvo’s illegal status, physical description (including pictures), and criminal history of aggravated assault against a police officer.

The morning of the arrest, an HSI agent surveilled the apartment’s parking lot, finding the white truck. An agent rang the apartment’s doorbell from outside the apartment complex. HSI special agents Timothy Ditter and Tim Kixmiller, uniformed in protective armor with guns holstered, waited outside the door. An Hispanic male (not Ortega-Montalvo) opened the door “partially dressed,” looking “like he had literally just gotten out of bed.” The agents introduced themselves and displayed their badges. Determining that the man (later identified as Juan Maldonado), did not speak English, Agent Ditter, fluent in Spanish, asked his country of citizenship and whether “he had documents to be in the United States.” Maldonado replied he was a citizen of Mexico and did not have documents. Agent Ditter asked permission to enter the apartment to talk. Maldonado consented.

Inside, Agent Ditter asked if anyone else was present. Maldonado said his friend was there, pointing to the back of the apartment. Agent Ditter told Maldonado “we’re going to do a protective search for everyone’s safety.” Maldonado said nothing. Special agent José Covarrubias, a native Spanish speaker who entered during the conversation, sat with Maldonado and questioned him.

With guns drawn, Agents Ditter and Kixmiller conducted a protective sweep, finding one bedroom door locked. They knocked on it. An Hispanic man identifying himself as Jerry Ortega opened the door. Immediately recognizing him as Ortega-Montalvo, they handcuffed him and placed him under arrest. The agents continued the protective sweep, finding no one else in the apartment.

After the protective sweep, the agents holstered their guns and asked Maldonado and Ortega-Montalvo — both handcuffed and under arrest — for consent to search the apartment. According to agents, both consented. In Ortega-Montalvo’s bedroom, officers seized three identification documents. Officers took Ortega-Montalvo to the Enforcement Removal Operations Office, advised him of his Miranda rights, and took a written statement. In the statement, he admitted he was a citizen of Mexico who had been deported from the United States and re-entered illegally.

A grand jury indicted Ortega-Montalvo on one count of illegal re-entry. He moved to suppress all evidence and testimony from the search, arrest, booking, and questioning. At the suppression hearing, a magistrate judge heard testimony from Maldonado and HSI agents Lindsey, Dit-ter, and Covarrubias. Maldonado testified he opened the door to police pointing guns at him; an officer grabbed him by the neck, pushed him against the wall, and entered the apartment without his permission. He denied that officers asked whether he had documentation to be in the country. Rejecting Maldonado’s testimony as not credible, the magistrate judge concluded his consent was “given voluntarily and without coercion.” Finding the protective sweep lawful, he recommended denying the motion. The district court adopted the recommendation. At a bench trial, it found Ortega-Montalvo guilty.

“On review of a motion to suppress,” this court reviews “factual findings for clear error” and “legal , conclusions de novo” United States v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014), quoting United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013). This court affirms the denial unless it is “unsupported by substantial evidence, based on an erroneous interpre-' tation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir. 2011).

I.

Ortega-Montalvo argues that Maldonado did not voluntarily consent to the agents’ entry into the apartment. At the suppression hearing, the magistrate judge rejected Maldonado’s testimony on this issue, instead crediting the testimony of an HSI agent that Maldonado voluntarily consented to entry. The district court adopted the finding.

“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the ■ totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See United States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005) (“Whether consent is voluntarily given is a question of fact.”). Evaluating consent, courts consider: (1) age; (2) general intelligence and education; (3) whether the person was intoxicated at the time of consent; (4) whether the person consented after receiving Miranda rights; and (5) whether the person was aware of his or her rights and protections due to previous arrests. United States v. Comstock, 531 F.3d 667, 676 (8th Cir. 2008). Other relevant factors include: (6) the length of detention time; (7) whether the officers acted in a threatening manner; (8) whether officers made any promises or misrepresentations; (9) whether the person was in custody or under arrest when giving consent; (10) whether the person consented in public; and (11) whether the person was silent as the search was conducted. Id. at 676-77. “Determination of consent necessarily involves judging the credibility of witnesses, a task generally left to the district court.” United States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th Cir. 2005). “A district court’s credibility findings are well-nigh unreviewable, so long as the findings are not internally inconsistent or based on testimony that is incoherent, implausible, or contradicted by objective evidence.” Sigillito, 759 F.3d at 923.

Here, there is no evidence that Maldonado’s age, intelligence, or education inhibited his ability to voluntarily consent, or that he was intoxicated. He was not in custody, threatened, or made any promises or misrepresentations to obtain his consent. The agents introduced themselves, showed their badges, and requested, in Spanish, to enter the apartment. Their guns were holstered; they did not raise their voices. Ortega-Montalvo’s assertion that Maldonado was “deliberately de-eeived” because the agents requested to “talk” rather than informing him they were searching for Ortega-Montalvo is without merit. There is no requirement that officers “gratuitously advertiste] [their] every move to anyone [they] might encounter.” United States v. Crisolis-Gonzalez, 742 F.3d 830, 835 (8th Cir. 2014) (alterations in original), quoting United States v. Briley, 726 F.2d 1301, 1305 (8th Cir. 1984). “Importantly, [Maldonado] agreed to let the agents inside without further inquiry as to the nature of the visit.” Id. There was “nothing misleading about [the agents’] request to speak with [Maldonado] because it was consistent with the overall goal of locating [Ortega-Mon-talvo].” Id.

Maldonado’s partial dress, lack of sleep, or admission that he was illegally in the United States also did not make the situation “inherently coercive” as Ortega-Montalvo asserts. See United States v. Quintero, 648 F.3d 660, 670 (8th Cir. 2011) (holding that a person’s “subjective state of mind at the time he allegedly gave his consent is not determinative” and that “[t]he internal psychological pressure associated with a suspect’s knowledge of his or her own guilt, or fears that evidence of such guilt has been discovered by police” does not bear on whether consent was voluntary); United States v. Johnson, 619 F.3d 910, 918 (8th Cir. 2010) (finding voluntary consent despite defendant’s state of undress, noting that defendant “chose to open the door when he was not fully clothed”); United States v. Mancias, 350 F.3d 800, 805-06 (8th Cir. 2003) (“Although [defendant] was extremely tired at the time of his encounter with [law enforcement], we do not find [defendant’s]physical state rendered his consent involuntary.”).

The district court properly found Maldonado voluntarily consented to entry.

II.

Ortega-Montalvo contends that even if Maldonado consented to entry, the protective sweep exceeded the scope of consent and was unlawful.

“A protective sweep is permitted under the Fourth Amendment when an officer has ‘articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.’ ” Crisolis-Gonzalez, 742 F.3d at 836, quoting Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). “Protective sweeps need not always occur in conjunction with an arrest” where “a reasonable officer could conclude that it was necessary for his safety to secure the premises before obtaining a warrant.” Id. quoting United States v. Cisneros-Gutierrez, 598 F.3d 997, 1006 (8th Cir. 2010).

Articulable facts warranted the agents’ protective sweep. Agents went to Ortega-Montalvo’s apartment after learning he was in the country illegally. From their briefing, they knew he had a prior conviction for aggravated assault on a police officer, and from Maldonado, they knew he may be present in the apartment. These facts were “sufficient to alert the agents as to the possibility that the apartment harbored dangerous individuals.” Id.

Citing United States v. Hassock, Ortega-Montalvo argues the protective sweep was unreasonable because the agents used consent to gain entry and thereby created the exigent circumstances. United States v. Hassock, 631 F.3d 79, 88 (2d Cir. 2011) (“[A] protective sweep is reasonable only to safeguard officers in the pursuit of an otherwise legitimate purpose. Where no other purpose is being pursued, a sweep is no different from any other search and, therefore, requires a warrant, exigency, or authorized consent, none of which were present here.”). This argument is precluded by this court’s decision in United States v. Crisolis-Gonzalez, 742 F.3d 830 (2014). There, agents received a tip that the defendant had entered the country illegally and was involved in meth trafficking. Id. at 833. Surveilling his apartment complex, they saw his car. Id. Two agents knocked on the apartment’s door. Id. A man, not the defendant, answered and consented to the agents entering “to speak with him.” Id. Once inside, the man indicated others were in the house, and the agents conducted a protective sweep for their safety. Id. at 833-34. This court held the protective sweep lawful. Id. at 836.

The district court did not err in finding the protective sweep lawful.

III.

Ortega-Montalvo maintains he did not voluntarily consent to the search of his bedroom.

The totality of the circumstances shows that Ortega-Montalvo did voluntarily consent. Like Maldonado, there is no evidence that Ortega-Montalvo’s age, intelligence, or education inhibited his ability to voluntarily consent, nor is there any evidence he was intoxicated. Although he was under arrest, there is no evidence he was threatened or coerced by the agents or they made any promises or misrepresentations to him. See United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998) (holding the district court did not err in finding consent where there was no “evidence of duress, intimidation, or over-reaching by the officers”). Similarly, the fact that he was not informed of his right to refuse consent does not, in itself, make consent involuntary. United States v. Watson, 423 U.S. 411, 425, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding that the “failure to inform the arrestee that he could withhold consent” does not automatically make consent involuntary); United States v. Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000) (considering the voluntariness of consent, the “relevant inquiry ... is whether the officers did anything to affirmatively communicate to the defendant that [he] was not free to ... refuse the consent request”). Finally, his criminal history suggests he would have been aware of his rights and protections. See United States v. Dunning, 666 F.3d 1158, 1165 (8th Cir. 2012) (finding consent voluntary “[a]l-though [defendant] was not read his Miranda rights prior to the search” partly because “he was experienced in the legal system and likely aware of his rights”).

The district court properly found Ortega-Montalvo’s consent voluntary.

IV.

Ortega-Montalvo requests suppression of “all evidence obtained as a result of the agents’ unlawful entry into the apartment and the unlawful protective sweep.” Because the agents had Maldonado’s voluntary consent to enter the apartment, lawfully conducted the protective sweep, and had Ortega-Montalvo’s voluntary consent to search his bedroom, this argument is without merit.

⅝ ⅝ ⅝ ⅜ ⅜ ⅜: ⅜

The judgment is affirmed.

      . The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.


author: BENNETT, District Judge:

text:
    Victoria ZETWICK, Plaintiff-Appellant, v. COUNTY OF YOLO; Edward G. Prieto, Sheriff of Yolo County, Defendants-Appellees.
    No. 14-17341
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016. San Francisco, California
    Filed February 23, 2017

      Manolo Olaso (argued) and Johnny L. Griffin, III, Law Offices of Johnny L. Griffin III, Sacramento, California, for Plaintiff-Appellant.
    John A. Whitesides (argued), Cori R. Samo, and Carolee G. Kilduff, Angelo Kil-day & Kilduff LLP, Sacramento, California, for Defendants-Appellees.
    Before: SUSAN P. GRABER and MARY H. MURGUIA, Circuit Judges, and MARK W. BENNETT, District Judge.

       The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, sitting by designation.

   ORDER

Appellant’s request for publication is GRANTED. The mandate issued December 2, 2016, is recalled.

The memorandum disposition filed November 9, 2016, is redesignated as an authored opinion by Judge Bennett with modifications.

OPINION

BENNETT, District Judge:

Plaintiff Victoria Zetwick, a county correctional officer, alleges that defendant Edward G. Prieto, the county sheriff, created a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12900 et seq., by, among other things, greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once, during a 12-year period. The defendants, Prieto and the County of Yolo, argue that such conduct was not objectively severe or pervasive enough to establish a hostile work environment, but merely innocuous, socially acceptable conduct. The district court granted the defendants’ motion for summary judgment, and Zetwick appeals. We reverse and remand.

I. INTRODUCTION

A. Factual Background

Zetwick began her employment with the Yolo County Sheriffs Department in 1988 as a correctional officer. She was promoted to sergeant in 2002. In 1999, Edward G. Prieto was elected as the county sheriff. He was in charge of a sheriffs office with approximately 250 employees, including the correctional officers. The defendants acknowledge that, after his election, Prieto introduced himself to the corrections staff and hugged all the female officers present, including Zetwick. Zetwick contends that, thereafter, from 1999 to 2012, Prieto subjected her to numerous unwelcome hugs and at least one unwelcome kiss that, taken as a whole, created a sexually hostile work environment.

Zetwick estimates that, from about 1999 to 2002, Prieto hugged her at least two dozen times and that, between 2003 and 2011, Prieto hugged her at least a hundred times. The defendants dispute the number and frequency of the hugs. They point out that, during 2000, Zetwick worked the night shift and rarely, if ever, encountered Prieto, whose office was not in the jail; during 2001, Zetwick worked in the courthouse holding facility and saw Prieto only occasionally; and, in 2002, after Zetwick was promoted and returned to the night shift, Prieto visited the jail perhaps once and hugged her. The defendants contend that most of the incidents in which Prieto hugged Zetwick were at parties involving sheriffs office employees, awards banquets, GED graduations for prisoners, and some training sessions or meetings, but no incidents when Prieto and Zetwick were alone.

In one particular incident, in May 2003, at an awards ceremony, Prieto kissed Zet-wick, ostensibly to congratulate Zetwick on her recent marriage to a sheriffs deputy. The kiss landed on or, because Zetwick turned her head, partially on the lips. Zet-wick states that she expressed her shock at this incident to her husband, co-workers, and supervising lieutenants, but not to Prieto. Her supervising lieutenants did not forward her complaints for investigation or resolution. Zetwick contends that, over the years, her co-workers and supervising lieutenants teased her that Prieto was going to kiss her on the lips. She contends that, on another occasion, in 2010, when she was working in the booking area with another female sergeant named Malugani, Prieto approached Zetwick, reached out to hug her, then stopped himself, and told her that people had complained, so he would not give her a hug. He then promptly hugged both Zetwick and Malugani anyway. Zetwick avers that the last hug that Prieto gave her was in December 2011. The defendants point out that Prieto first became aware of Zetwick’s dislike of his hugs when she filed her administrative claim in early 2012.

Zetwick also contends that, from 1999 to 2013, she saw Prieto hug and kiss several dozen other female employees, but did not see him hug male employees. Rather, she observed that Prieto gave male employees handshakes. She also details an incident in which Prieto repeatedly asked Malugani how much Mulagani weighed, until Malu-gani answered. Zetwick contends that, during this incident, Prieto stared at Maluga-ni’s body in a sexually suggestive manner and that Zetwick believed that Malugani was embarrassed and uncomfortable. The defendants counter that Malugani stated in a declaration that she was embarrassed, because her weight loss was from a health problem, but that she was not offended by-Prieto’s questions or hugs. The defendants also contend that even Zetwick described Prieto’s hugs as the kind that one might give a relative or friend, lasting only a couple of seconds, and not .involving sexual comments or other touching. Zetwick contends that the hugs were, nevertheless, chest to breasts. The defendants contend that, even if Zetwick did not see it, Prieto also hugged male employees on occasion. They add that Zetwick admits that she also hugged male co-workers and occasionally joined in banter about Prieto’s hugs.

Zetwick contends that her workplace changed, and that she found it difficult to concentrate, because of Prieto’s conduct, in that she was constantly stressed and anxious about Prieto’s touching, which she believed had sexual overtones. She testified in a deposition that she sometimes cried at work, in the locker room, because of stress from Prieto’s conduct, that she lost sleep, and that she had to take sleep aids because of her anxiety.

B. Procedural Background

After exhausting administrative remedies, Zetwick filed suit on October 3, 2012, against the County of Yolo, Prieto, and Does 1 through 50. She asserted claims of sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the County and Does 1 through 50; sexual harassment in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12.900 et seq., against all defendants; and failure to prevent sexual harassment, in violation of the FEHA, Cal. Gov’t Code § 12940(k), against the County and Does 1 through 50. Zetwick sought compensatory, general, and special damages, punitive and exemplary damages, costs and attorney’s fees, and such other relief, including injunctive and/or declaratory relief, as the court might deem appropriate. The County and Prieto filed a joint Answer on November 16, 2012, denying Zetwick’s claims and asserting various affirmative defenses.

On October 3, 2013, the County and Prieto filed a Motion for Summary Judgment. Zetwick filed her Opposition on October 17, 2013, and the defendants filed their Reply on October 24, 2013. The district court heard oral arguments on the defendants’ Motion for Summary Judgment on October 31, 2013. Just over a year later, on November 6, 2014, the district court granted the defendants’ Motion for Summary Judgment, dismissed Zetwick’s claims, and directed the Clerk of Court to close the case. Zetwick v. Cty. of Yolo, 66 F.Supp.3d 1274 (E.D. Cal. 2014). Judgment was entered accordingly on November 6, 2014. Zetwick timely filed her Notice Of Appeal on November 24, 2014. We have jurisdiction under 28 U.S.C. § 1291.

II. LEGAL ANALYSIS

A. Summary Judgment Standards

Our review of a summary judgment ruling is de novo. Animal Legal Def. Fund v. FDA, 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam). The standard for summary judgment is familiar: “Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact.” See, e.g., United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir. 2016) (internal quotation marks omitted). This statement does not fully explain the role of the courts at summary judgment, however.

As to that, the Supreme Court recently reiterated:

[Cjourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment. See Brosseau v. Haugen, 543 U.S. 194, 195 n.2 [125 S.Ct. 596, 160 L.Ed.2d 583] (2004) (per curiam); Saucier [v. Katz, 533 U.S. 194,] 201 [121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ]; Hope [v. Pelzer, 536 U.S. 730,] 733 n.1 [122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ]. This ... is simply an application of the more general rule that a “judge’s function” at summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242,] 249 [106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ].

Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam). It is also clear that the court must not make any credibility determinations. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (explaining that the standard for summary judgment “mirrors” the standard for judgment as a matter of law).

Similarly, the district court must recognize that, where evidence is genuinely disputed on a particular issue — such as by conflicting testimony — that “issue is inappropriate for resolution on summary judgment.” Direct Techs., LLC v. Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th Cir. 2016); Pan Pac. Retail Props., Inc. v. Gulf Ins. Co., 471 F.3d 961, 970 (9th Cir. 2006) (“[T]he district court erred in granting summary judgment to the defendants, resolving [an] issue in light of the disputed and conflicting evidence before it.”). To put it another way, “where the district court has made a factual determination, summary judgment cannot be appropriate.” Animal Legal Def. Fund, 836 F.3d at 990. The proper question for the district court is whether, viewing the facts in the non-moving party’s favor, summary judgment for the moving party is appropriate. See Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1207 (9th Cir. 2016) (“We express no view on whether [the plaintiff] was actually sexually harassed or harassed on the basis of her sex, but hold that viewing the facts in her favor, the district court erred in dismissing [the plaintiffs] hostile work environment claim.”), cert. denied, 2017 WL 69195, — U.S. -, 137 S.Ct. 623, 196 L.Ed.2d 515 (U.S. Jan. 9, 2017) (No. 16-30).

In short, what is required to defeat summary judgment is simply evidence “such that a reasonable juror drawing all inferences in favor of the respondent could return a verdict in the respondent’s favor.” Reza v. Pearce, 806 F.3d 497, 505 (9th Cir. 2015) (internal quotation marks omitted); accord Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”). On the other hand, the Supreme Court has made clear: “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial,” and summary judgment is appropriate. Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

The district court must not only properly consider the record on summary judgment, but must consider that record in light of the “governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Animal Legal Def. Fund, 836 F.3d at 989 (appellate review of a summary judgment ruling involves, inter alia, “decid[ing] whether the district court correctly applied the relevant substantive law”). Thus, where application of incorrect legal standards may have influenced the district court’s conclusion, remand is appropriate. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

B. Zetwick’s Sexually Hostile Work Environment Claim

The “governing law,” see Anderson, 477 U.S. at 248, 106 S.Ct. 2505, requires Zetwick to generate genuine issues of material fact that Prieto’s conduct “was sufficiently severe or pervasive to alter the conditions of [Zetwick’s] employment and create an [objectively] abusive working environment.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (internal quotation marks omitted); see id. (identifying the elements of a prima facie case of a sex-based hostile work environment (internal quotation marks omitted)); accord Geo Grp., Inc., 816 F.3d at 1206 (“An employer is liable under Title VII for conduct giving rise to a hostile environment where the employee proves (1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (internal quotation marks omitted)). We hold that, giving the record proper consideration, a reasonable juror could conclude that the differences in hugging of men and women were not, as the defendants argue, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation marks omitted). Thus, summary judgment was inappropriate. Reza, 806 F.3d at 505. We also hold that the district court’s contrary conclusion may have been influenced by application of incorrect legal standards. Harris, 510 U.S. at 23, 114 S.Ct. 367.

1. Application of incorrect legal standards

The first incorrect legal standard the district court applied involved extraction of a sort of black letter rule, from just a few cases, that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. Zetwick, 66 F.Supp.3d at 1280-81. In support of this proposition, the district court cited three cases: Lefevre v. Design Prof'ls Ins. Cos., No. C 93-20720 RPA, 1994 WL 514020 (N.D. Cal. Sept. 15, 1994); Graves v. City of Durant, No. C 09-0061, 2010 WL 785850 (N.D. Iowa Mar. 5, 2010); and Joiner v. Wal-Mart Stores, Inc., 114 F.Supp.2d 400, 409 (W.D.N.C. 2000). None of these decisions states or properly stands for that proposition. Furthermore, none identified either the number of times or the period of time over which unwelcome hugging, occurred; they are factually distinguishable.

This is particularly true of the decision in Joiner, which states that the plaintiff complained “that he was subjected to unwanted propositions and hugs and kisses from female coworkers,” but does not indicate the frequency or period of time over which such conduct occurred. 114 F.Supp.2d at 407-09. What makes the decision in Joiner more interesting, however, is that the district court stated only that flirting, hugging, and even kissing in the workplace “are very ordinary things that people do and are not per se intimidating, hostile, humiliating, or offensive.” Id. at 409. The court then recognized that “[i]t is only when such conduct is both unwelcome and pervasive that [it] become[s] unlawful.” Id. Thus, Joiner does not state a black letter rule that hugging cannot create a hostile or abusive workplace. Rather, it actually recognizes that such conduct can create a hostile or abusive workplace, .when “[i]t is ... unwelcome and pervasive.” Id.

The district court also applied an incorrect legal standard when it “f[ound] that Defendant Prieto’s conduct in this case was not severe and pervasive.” Zetwick, 66 F.Supp.3d at 1285 (emphasis added). The proper standard, however, is whether the defendant’s conduct was “severe or pervasive.” Geo Grp., Inc., 816 F.3d at 1206 (emphasis added). Summary judgment is appropriate only if the conduct was “neither severe nor pervasive enough to alter the conditions of [Zet-wick’s] employment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 799 (9th Cir. 2003) (emphasis added). We do not dismiss this mistake as simply a typographical error, notwithstanding that the district court properly stated the requirement as “severe or pervasive elsewhere in its decision. The incorrect statement of the legal standard occurred precisely where the district court made the pertinent finding that Zetwick had not met the standard. Zetwick, 66 F.Supp.3d at 1285.

We conclude that the application of these incorrect legal standards may have influenced the district court’s decision to grant summary judgment. Harris, 510 U.S. at 23, 114 S.Ct. 367.

2. Improper analysis of the record

Turning to the district court’s analysis of the record, on de novo review, Animal Legal Def. Fund, 836 F.3d at 988, we cannot accept the conclusion that Zet-wick did not state an actionable claim of a sexually hostile work environment. “To be actionable under Title VII, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Geo Grp., Inc., 816 F.3d at 1206 (internal quotation marks omitted). A reasonable juror could credit Zetwick’s testimony that Prieto’s conduct “was sufficiently severe or pervasive to alter the conditions of [Zetwick’s] employment and create an [objectively and subjectively] abusive working environment.” Craig, 496 F.3d at 1055. This is so, where her testimony is that Prieto hugged her more than one hundred times over the period from 1999 to 2012, that he hugged female employees much more often than male employees and, indeed,' from Zet-wick’s observations, he hugged female employees exclusively. Because a reasonable juror could find in Zetwick’s favor, sum-mary judgment was inappropriate. Reza, 806 F.3d at 505.

More specifically, while it may appear that Prieto’s hugs were “common” in the workplace, and that some other cross-gender hugging occurred, neither of those things demonstrates beyond dispute that Prieto’s hugging was within the scope of “ordinary workplace socializing.” A reasonable juror could find, for example, from the frequency of the hugs, that Prieto’s conduct was out of proportion to “ordinary workplace socializing” and had, instead, become abusive. See Geo Grp., Inc., 816 F.3d at 1206 (citing factors relevant to the determination of whether the environment was sufficiently hostile or abusive, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” (internal quotation marks omitted)). This is so, at least in part, because it is not possible to determine whether the environment was “hostile or abusive” without considering the cumulative effect of the conduct at issue to determine whether it was sufficiently “severe or pervasive” to alter the conditions of the workplace. Id. at 1207.

Instead of giving proper consideration to the cumulative effect of the conduct at issue, the district court attempted to apply “a mathematically precise test” to determine whether or not Zetwick had generated genuine issues of material fact that the environment created by Prieto’s hugging was sufficiently hostile. See Harris, 510 U.S. at 22-23, 114 S.Ct. 367 (rejecting such a test). The district court stated: “While both parties acknowledged that the frequency of the interactions varied, simple math indicates that Plaintiff experienced this conduct an average of around seven or eight times per year for a couple [of] seconds on each occurrence,” the encounters were not “on a daily basis,” “most ... occurred outside of normal work hours,” and the encounters were not physically threatening or humiliating. Zetwick, 66 F.Supp.3d at 1285. The district court correctly conceded that there was no “magic number of harassing incidents” that would give rise to liability. Id. In any event, there remain disputes concerning how many hugging incidents there were; whether or not the hugs were concentrated during certain periods of Zetwick’s employment, when she was on certain shifts, resulting in periods of relatively high frequency hugging, or spread evenly or “sporadically” over the entire 12-year period; and what percentage of the times the two met that Prieto hugged Zetwick.

The district court erred in concluding as a matter of law that, “[b]ased on the totality of the circumstanees[,] Defendant Prieto’s conduct did not create a severe or pervasive work environment with respect to Plaintiff.” Id. at 1285-86. We conclude that the district court had not properly considered the totality of the circumstances, however. For example, the district court failed to consider whether a reasonable juror would find that hugs, in the kind, number, frequency, and persistence described by Zetwick, create a hostile environment. Zetwick relies, in part, on Alvarado v. Federal Express Corp., 384 Fed.Appx. 585, 589 (9th Cir. 2010) (unpublished), in which we noted that the hugging included chest to breast contact, which a reasonable juror (and a reasonable woman) could find created a hostile environment. Alvarado suggests that the hugs to which Zetwick was subjected raise a jury question on the objective abusiveness of the environment. In addition, Zetwick is correct “that a hostile work environment is ambient and persistent, and that it continues to exist between overt manifestations.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 n.1 (9th Cir. 1998). This is yet another reason why simply looking at the number of hugs over the period of time did not adequately address whether Zetwick had generated genuine issues of material fact that the environment she faced was sexually hostile.

The district court also completely overlooked legal recognition of the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department. The Supreme Court has recognized that “acts of supervisors have greater power to alter the environment than acts of coem-ployees generally.” Faragher, 524 U.S. at 805, 118 S.Ct. 2275. Indeed, the Court has recognized that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Thus, Prieto’s position as Zetwick’s supervisor was significant to whether or not a reasonable juror could find the hugs and the kiss to which Zetwick was subjected created an abusive environment.

The district court also overlooked the import óf its observation that Zetwick had stated in a deposition that it was difficult for her to. go to work and that she was always stressed, suffered from anxiety, and took a sleep aid, which the district court conceded “[c]ertainly [would] interfere with an individual’s job.” Zetwick, 66 F.Supp.3d at 1284. This concession suggests that a reasonable juror would have an evidentiary basis to find that Zetwick’s environment was abusive. See Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008) (“A working environment is abusive if hostile conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.” (emphasis added) (internal quotation marks omitted)).

It was also improper for the district court to disregard Zetwick’s evidence that Prieto hugged and kissed other women. Zetwick argues that such evidence helps to generate genuine issues of material fact that the environment was objectively hostile. We have long recognized that “[t]he sexual harassment of others, if shown to have occurred, is relevant and probative of [a defendant’s] general attitude of disrespect toward his female employees, and his sexual objectification of them.” Heyne v. Caruso, 69 F.3d 1475, 1479-81 (9th Cir. 1995); see also Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005) (concluding that evidence that other women were harassed showed that hostility pervaded the workplace and helped show that it was hostile).

As to one specific incident of Prieto’s conduct towards other women, the district court observed that Zetwick’s description of the incidents involving Malugani “do[] not survive factual scrutiny in discovery,” in light of Malugani’s declaration. Zetwick, 66 F.Supp.3d at 1283. It was improper for the district court to determine that Zet-wick’s testimony that Malugani was embarrassed by Prieto’s questions and hugs, based on her firsthand observation of the incident, was necessarily less credible than Malugani’s assertion, in her post hoc declaration, that she was embarrassed about her weight loss, but not by Prieto’s questions and hugs. A reasonable juror could conclude that Malugani had reasons not to complain about past treatment by her employer and to make a declaration, not subject to cross-examination, to support her employer’s position. This was the sort of conflict in the testimony that makes resolution of the issue at summary judgment inappropriate. Direct Techs., LLC, 836 F.3d at 1067. This conflict cannot be ignored, because it is not clear that one of the versions of the incident “is blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Finally, the defendants assert that the record shows that Prieto also hugged men, but they do not suggest that Prieto hugged men as often as he hugged women. Zetwick has submitted evidence that she never saw Prieto hug men and evidence that others agreed that Prieto hugged women more frequently than men. Thus, she submitted evidence from which a reasonable juror could conclude that, even if Prieto also hugged men on occasion, there were “qualitative and quantitative differences” in the hugging conduct toward the two genders. Geo Grp., Inc., 816 F.3d at 1207 n.12 (internal quotation marks omitted). The offensive conduct does not have to be “facially sex-specific.” Id. (internal quotation marks omitted).

III. CONCLUSION

We reverse the grant of summary judgment in favor of the defendants and remand for a trial on the merits of Zetwick’s federal and state sexual harassment claims and her state claim of failing to prevent sexual harassment.

REVERSED and REMANDED.

      . Essentially the same legal analysis applies to Zetwick's hostile work environment sexual harassment claims under the FEHA as federal courts apply to Title VII claims. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). Therefore, like the district court, we will focus on Title VII standards.

      . Indeed, in Lefevre, the court confusingly states that the plaintiff alleged that the harasser "forced her to shake hands with him each time they met and would frequently hug her at business meetings where [the plaintiff] was the only women [sic] in attendance,” but then dismisses the plaintiff's complaints as inadequate to create an objectively hostile work environment, because "[flrequent handshakes and occasional hugs at business meetings do not amount to pervasive harassment.” 1994 WL 514020, at *3 (emphasis added). The decision in Graves gives no indication of the frequency of the unwelcome hugging at issue. See 2010 WL 785850, at *3 (referring to “being leaned into, touched or hugged,” but without indicating the frequency or period of time over which such conduct occurred); id. at *11 (again referring to “unwanted leaning, touching, or hugging,” without indicating the frequency or period of time over which such conduct occurred).

      . The defendants argue that the hugging to which Zetwick was subjected was "friendly” and "socially acceptable” and that Zetwick has "exaggerated the evidence.” These arguments rely on weighing of the evidence, which is not appropriate at the summary judgment stage of the proceedings, see Tolan, 134 S.Ct. at 1866; Geo Grp., Inc., 816 F.3d at 1207, even if such arguments may be presented to a jury.