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Redmond v. Crowther

United States Court of Appeals, Tenth Circuit

February 9, 2018

TIMOTHY REDMOND; NICK WATSON; GEORGE MONFORT; DANIEL LASSCHE; KRAIG CANFIELD, and all others similarly situated, Plaintiffs - Appellants,
SCOTT CROWTHER, as successor to Alfred Bigelow in his official capacity; ROBERT POWELL, in his individual capacity; and JASON NICHOLES, in his individual capacity, Defendants - Appellees.

          Karra J. Porter (Kristen C. Kiburtz with her on the briefs), Christensen & Jensen, P.C., Salt Lake City, Utah, for Appellants.

          Joshua D. Davidson, Assistant Utah Solicitor General (Sean D. Reyes, Utah Attorney General, with him on the brief), Office of the Utah Attorney General, Salt Lake City, Utah, for Appellees.

          Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.


          TYMKOVICH, Chief Judge.

         This appeal arises from prison officials' attempt to gain control over an agitated prisoner who refused to obey their orders, locked himself in the prison's outdoor recreation yard, and threatened prison officials. To subdue the prisoner, prison officials decided to drop CS gas, a commonly used tear gas, into the recreation yard.

         The plan went awry. The recreation yard contained a prison ventilation system intake vent, which draws air in from the recreation yard and circulates it inside the prison. So when prison officials deployed the gas, the intake vent drew the gas in and filtered it into the prison. Numerous prisoners in their cells were exposed to the gas, which caused a burning sensation in their eyes, ears, and noses, and made it difficult for them to breathe. Prison officials evacuated the prisoners housed in two sections of the prison after they secured the prisoner in the recreation yard. The officials did not, however, evacuate the prisoners in two other sections.

         On behalf of a class of about one-hundred prisoners, Timothy Redmond sued three of the prison officials for constitutional violations under 42 U.S.C. § 1983, claiming the officials violated the Eighth Amendment and Utah's Constitution by exposing the prisoners to gas, and then failing to provide adequate medical care.

          The district court granted the defendants' summary judgment motion. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. The prison officials' conduct, at most, only accidently exposed the prisoners to CS gas, and qualified immunity shields government officials from liability for mistakes like this one. And the rest of Redmond's claims fail, too, either because Redmond forfeited them, failed to prove a constitutional violation occurred, or did not cite case law that clearly established the alleged rights. Finally, violating the Utah Constitution requires more-than-negligent conduct, and the prison officials' conduct was textbook negligence.

         I. Background

         Redmond and the entire plaintiff class[1] were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus's HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D.

         James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

         But Hill did not return to his cell. He instead walked into Section D's recreation yard and closed the door behind him, which caused it to lock. Hill then took off his glasses and began sharpening them on the wall. He declared he would "stick or cut the first pig that came out there, " paced aggressively, swung his arms in the air, swore, and spit at prison officials. App. at 283.

         In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas.

         But before doing so, Nicholes examined the recreation yard and looked for risks-he did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless flipped off Nicholes and said "F*** you, fascist." App. at 288.

         Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem-the HVAC unit. Because the recreation yard contained the HVAC unit's intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners' eyes, ears, and noses, and made it difficult for them to breathe.

         It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them:

if any of you sissies absolutely need medical treatment, that's fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I'm going to put you on lockdown or see about having you removed from this facility. I'm not going to have you wasting time with those complaints. If you're about to die, that's one thing.

App. at 1284. Two prisoners claim they would have sought medical treatment had Powell not made this statement.

         Next, Powell entered sections A and D.[2] Powell thought the gas had dissipated in these sections and that the prisoners no longer complained about the gas. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells' doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

         II. Analysis

         Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution's unnecessary-rigor clause by exposing the prisoners to CS gas.

         We first discuss our standard of review before turning to Redmond's claims under the Eighth Amendment and the Utah Constitution.

         A. Standard of Review

         Ordinarily, we grant summary judgment only if no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). But our "review of summary judgment orders in the qualified immunity context differs from that applicable to review of other summary judgment decisions." Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011). "When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established." Id. "If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment . . . ." Id.

          In determining whether the plaintiff meets this burden, we "ordinarily accept the plaintiff's version of the facts-that is, the 'facts alleged.'" A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016) (quoting Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)). But "because at summary judgment we are beyond the pleading phase of the litigation, [the] plaintiff's version of the facts must find support in the record." Id. (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009)). Thus, if the non-moving party's version of the facts is "blatantly contradicted by the record, so that no reasonable jury could believe it, " then we "should not adopt that version of the facts." Thomson, 584 F.3d at 1312.

         To qualify as clearly established, a constitutional right must be "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). A case clearly establishes a right "when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as [the] plaintiff maintains." PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197-98 (10th Cir. 2010). And although there need not be a case precisely on point for a right to be clearly established, "existing precedent must have placed the statutory or constitutional question beyond debate." Mul ...

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