Grissom v. Roberts

• Decision Date: 29 August 2018
• Docket Number: No. 17-3185,17-3185
• Citation: 902 F.3d 1162
• Parties: Richard GRISSOM, Plaintiff-Appellant v. Raymond ROBERTS, Secretary of Corrections, in his individual and official capacity ; Johnnie Goddard, Deputy Secretary for Facilities Management, in his individual and official capacity ; James Heimgartner, Warden, El Dorado Correctional Facility, in his individual and official capacity ; Gary Wilson, Classification Administrator, El Dorado Correctional Facility, in his individual and official capacity ; Susan Gibreal, Deputy Warden, El Dorado Correctional Facility, in her individual and official capacity ; Paul Snyder, Deputy Warden, El Dorado Correctional Facility, in his individual and official capacity ; Fred Early, Deputy Warden, El Dorado Correctional Facility, in his individual and official capacity ; Dale Call, Compliance Officer, El Dorado Correctional Facility, in his individual and official capacity ; Mary Wilson, Deputy Warden, El Dorado Correctional Facility, in her individual and official capacity ; Deane Donley, Classification Administrator, El Dorado Correctional Facility, in his individual and official capacity ; Maria Bos, Compliance Officer, El Dorado Correctional Facility, in her individual and official capacity ; Timothy Randa, Segregation Lieutenant, El Dorado Correctional Facility, in his individual and official capacity ; Connie Zabel, Clinical Staff, El Dorado Correctional Facility, in her individual and official capacity ; Roland Buchanan, Segregation Lieutenant, El Dorado Correctional Facility, in his individual and official capacity ; Matthew Moore, Correctional Counselor II, El Dorado Correctional Facility, in his individual and official capacity ; Katherine Clouser, Clinical Staff, El Dorado Correctional Facility, in her individual and official capacity ; Brandon Walmsley, Unit Team Manager, El Dorado Correctional Facility, in his individual and official capacity ; Billie Grey, Corrections Counselor I, El Dorado Correctional Facility, in her individual and official capacity ; Allison Austin, Corrections Counselor II, El Dorado Correctional Facility, in her individual and official capacity ; Charles Miller, Corrections Counselor II, El Dorado Correctional Facility, in his individual and official capacity ; Tammy Martin, Unit Team Manager, El Dorado Correctional Facility, in her individual and official capacity, Defendants-Appellees. Stuart Grassian, M.D.; Terry A. Kupers, M.D., M.S.P.; Pablo Stewart, M.D., Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

902 F.3d 1162

Richard GRISSOM, Plaintiff-Appellant

v. Raymond ROBERTS, Secretary of Corrections, in his individual and official capacity ; Johnnie Goddard, Deputy Secretary for Facilities Management, in his individual and official capacity ; James Heimgartner, Warden, El Dorado Correctional Facility, in his individual and official capacity ; Gary Wilson, Classification Administrator, El Dorado Correctional Facility, in his individual and official capacity ; Susan Gibreal, Deputy Warden, El Dorado Correctional Facility, in her individual and official capacity ; Paul Snyder, Deputy Warden, El Dorado Correctional Facility, in his individual and official capacity ; Fred Early, Deputy Warden, El Dorado Correctional Facility, in his individual and official capacity ; Dale Call, Compliance Officer, El Dorado Correctional Facility, in his individual and official capacity ; Mary Wilson, Deputy Warden, El Dorado Correctional Facility, in her individual and official capacity ; Deane Donley, Classification Administrator, El Dorado Correctional Facility, in his individual and official capacity ; Maria Bos, Compliance Officer, El Dorado Correctional Facility, in her individual and official capacity ; Timothy Randa, Segregation Lieutenant, El Dorado Correctional Facility, in his individual and official capacity ; Connie Zabel, Clinical Staff, El Dorado Correctional Facility, in her individual and official capacity ; Roland Buchanan, Segregation Lieutenant, El Dorado Correctional Facility, in his individual and official capacity ; Matthew Moore, Correctional Counselor II, El Dorado Correctional Facility, in his individual and official capacity ; Katherine Clouser, Clinical Staff, El Dorado Correctional Facility, in her individual and official capacity ; Brandon Walmsley, Unit Team Manager, El Dorado Correctional Facility, in his individual and official capacity ; Billie Grey, Corrections Counselor I, El Dorado Correctional Facility, in her individual and official capacity ; Allison Austin, Corrections Counselor II, El Dorado Correctional Facility, in her individual and official capacity ; Charles Miller, Corrections Counselor II, El Dorado Correctional Facility, in his individual and official capacity ; Tammy Martin, Unit Team Manager, El Dorado Correctional Facility, in her individual and official capacity, Defendants-Appellees.Stuart Grassian, M.D.; Terry A. Kupers, M.D., M.S.P.; Pablo Stewart, M.D., Amici Curiae.

No. 17-3185

United States Court of Appeals, Tenth Circuit.

Filed August 29, 2018

Susan M. Razzano, Eimer Stahl LLP, Chicago, Illinois (Brian Y. Chang, Eimer Stahl, LLP, Chicago, Illinois, Daniel M. Greenfield, Northwestern Pritzker School of Law, Bluhm Legal Clinic, Roderick and Solange MacArthur Justice Center, Chicago, Illinois, with her on the briefs), for Plaintiff-Appellant.

Dwight R. Carswell, Assistant Solicitor General, Topeka, Kansas (Toby Crouse, Solicitor General of Kansas, Bryan C. Clark, Assistant Solicitor General, Rachael D. Longhofer, Assistant Attorney General, Roger W. Slead, and Jeffrey T. Donoho, Horn, Aylward & Bandy, LLC, Kansas City, Missouri, with him on the brief), for Defendants-Appellees.

Brook R. Long, Winston & Strawn, LLP, Chicago, Illinois, and Claire A. Fundakowski, Winston & Strawn, LLP, Washington, D.C. filed an Amici Curiae brief in support of Plaintiff-Appellant.

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Richard Grissom, a prisoner in the custody of the Kansas Department of Corrections, brought suit under 42 U.S.C. § 1983 against a number of state corrections and prison officials (collectively the Prison Officials), alleging violations of his constitutional rights stemming from his lengthy placement in solitary confinement. The district court granted summary judgment against Grissom, and he appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Prison Officials are entitled to qualified immunity because at the time of Grissom's confinement there was no clearly established law that would have alerted them that his asserted constitutional rights were being violated.

I. BACKGROUND

After being convicted in 1989 of a number of crimes, including the murders of three women and aggravated kidnapping, Grissom began serving four consecutive life sentences. He spent six years in general population until he was placed in solitary confinement in 1996 based on allegations that he was trafficking drugs. (Grissom uses the term solitary confinement . The Prison Officials speak of administrative segregation , a less emotive term. For convenience, we will generally use Grissom's nomenclature.) Grissom remained in solitary at several Kansas prisons—Lansing Correctional Facility (LCF), El Dorado Correctional Facility (EDCF), and Hutchinson Correctional Facility (HCF)—for nearly 20 years before being returned to general population in 2016.

This is Grissom's second lawsuit challenging his solitary confinement. In his first lawsuit the district court granted summary judgment against him, holding that there had been no constitutional violation. See Grissom v. Werholtz , No. 07-3302-SAC, 2012 WL 3732895 (D. Kan. August 28, 2012) ( Grissom I ). We affirmed. See Grissom v. Werholtz , 524 F. App'x. 467 (10th Cir. 2013) ( Grissom II ).

In September 2015 Grissom filed his pro se complaint in this case, asserting that his two decades in solitary violated his Fourteenth Amendment rights to due process and equal protection. He later filed an amended complaint expanding on his allegations and adding an Eighth Amendment claim, and then he filed a supplemental complaint adding new defendants who allegedly retaliated against him. The district court considered both his amended and supplemental complaints and again granted summary judgment against him. See Grissom v. Roberts , No. 15-3221-JTM, 2017 WL 3130591, at *7 (D. Kan. July 24, 2017) ( Grissom III ). For our purposes the amended complaint is the relevant pleading, as Grissom does not raise on appeal any of the additional claims from his supplemental complaint.

II. STANDARD OF REVIEW AND QUALIFIED IMMUNITY

"We review summary judgments de novo, applying the same standards that the district court should apply." United States v. Turley , 878 F.3d 953, 956 (10th Cir. 2017). "When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied." Id. (internal quotation marks omitted).

Individual defendants sued for damages under § 1983 may raise a defense of qualified immunity. "Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kisela v. Hughes , ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (internal quotation marks omitted). This standard arises from balancing two important but contrary interests. On the one hand, "an action for damages may offer the only realistic avenue for vindication of constitutional guarantees." Harlow v. Fitzgerald , 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). On the other hand, exposing public officials to liability for damages presents its own "social costs[,] includ[ing] the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Id. And, perhaps most significantly, "there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties." Id. (brackets and internal quotation marks omitted).

"Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Kisela , 138 S.Ct. at 1152 (internal quotation marks omitted). Thus, when a defendant has raised qualified immunity as a defense, the plaintiff must establish (1) that the defendant's action violated a federal constitutional or statutory right; and (2) that the right violated was clearly established at the time of the defendant's actions. See Thomson v. Salt Lake Cty. , 584 F.3d 1304, 1312 (10th Cir. 2009). Under this test, "immunity protects all but the plainly incompetent or those who knowingly violate the law." Kisela , 138 S.Ct. at 1152 (internal quotation marks omitted).

The test imposes a "heavy two-part burden." Casey v. W. Las Vegas Indep. Sch. Dist. , 473 F.3d 1323, 1327 (10th Cir. 2007) (internal quotation marks omitted). If the plaintiff fails to satisfy either part of the two-part inquiry, a court must grant the defendant qualified immunity. See Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). The court has discretion to decide which of the two prongs of the qualified-immunity analysis to address first. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). "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...." Clark v. Edmunds , 513 F.3d 1219, 1222 (10th Cir. 2008) (internal quotation marks omitted).

This court has stated that "[o]rdinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Toevs v. Reid , 685 F.3d 903, 916 (10th Cir. 2012) (internal quotation marks omitted). When we say "on point," we do not mean that the precedent has merely stated a general proposition of applicable law. The Supreme Court has repeatedly advised the lower courts "not to define clearly established law at a high level of generality." Kisela , 138 S.Ct. at 1152. Although Supreme Court precedent "does not require ...