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.
J. Porter (Kristen C. Kiburtz with her on the briefs),
Christensen & Jensen, P.C., Salt Lake City, Utah, for
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.
TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH (D.C. NO. 2-13-CV-00393-DAK)
TYMKOVICH, Chief Judge.
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.
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
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.
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.
and the entire plaintiff class 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.
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.
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.
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.
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.
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.
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.
Powell entered sections A and D. 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
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.
first discuss our standard of review before turning to
Redmond's claims under the Eighth Amendment and the Utah
Standard of Review
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.
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
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."