Apodaca v. Raemisch

• Decision Date: 25 July 2017
• Docket Number: No. 15-1454,15-1454
• Citation: 864 F.3d 1071
• Parties: Jonathan APODACA; Joshua Vigil, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees, v. Rick RAEMISCH, Executive Director, Colorado Department of Corrections, in his individual capacity; Travis Trani, Warden, Colorado State Penitentiary, in his individual capacity, Defendants–Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

864 F.3d 1071

Jonathan APODACA; Joshua Vigil, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees,

v.Rick RAEMISCH, Executive Director, Colorado Department of Corrections, in his individual capacity; Travis Trani, Warden, Colorado State Penitentiary, in his individual capacity, Defendants–Appellants.

No. 15-1454

United States Court of Appeals, Tenth Circuit.

FILED July 25, 2017

Chris W. Alber, Senior Assistant Attorney General, Denver, Colorado (Cynthia H. Coffman, Attorney General, with him on the briefs), for Defendants–Appellants.

Elisabeth L. Owen, Prisoners' Justice League of Colorado LLC, Denver, Colorado, for Plaintiffs–Appellees.

Before TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, Circuit Judges.

BACHARACH, Circuit Judge.

Two inmates were kept in administrative segregation at a Colorado prison for roughly eleven months. During that time, the inmates were allegedly prohibited from exercising outdoors, although they were brought to a "recreation room" five times each week. The alleged prohibition on outdoor exercise led the two inmates to sue the prison warden and the director of the Colorado Department of Corrections, invoking 42 U.S.C. § 1983 and claiming violation of the Eighth Amendment. For these claims, the inmates relied largely on a published opinion in our court, Perkins v. Kansas Department of Corrections , 165 F.3d 803 (10th Cir. 1999).

The warden and director moved to dismiss, arguing that (1) the alleged prohibition on outdoor exercise did not violate the Eighth Amendment and (2) qualified immunity applies. For these arguments, the warden and director distinguish Perkins , relying largely on an unpublished opinion in our court, Ajaj v. United States , 293 Fed.Appx. 575 (10th Cir. 2008).

The district court denied the motion to dismiss, reasoning that the two inmates had stated a plausible claim for relief. Because the warden and director enjoy qualified immunity, we reverse. We conclude that even if the alleged prohibition on outdoor exercise had violated the Eighth Amendment, the underlying constitutional right would not have been clearly established.

The right would not have been clearly established because existing precedent would have left the constitutional question within the realm of reasonable debate. The underlying right turns on our opinion in Perkins . But Perkins can be read either expansively or narrowly. Under an expansive reading, Perkins would squarely prohibit the alleged denial of outdoor exercise for eleven months. But, under a narrow reading, Perkins would apply only to denials of out-of-cell exercise—a situation not present here. We need not decide which reading is correct. Because Perkins is ambiguous, our opinions do not clearly establish that an eleven-month deprivation of outdoor exercise would violate the Eighth Amendment.

I. Appellate Jurisdiction

Before addressing the merits, we must ensure our jurisdiction. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The two inmates challenge jurisdiction based on the absence of certain factual findings in district court. This challenge fails, for we have jurisdiction under the collateral-order doctrine.

In appeals from district court decisions, we generally obtain jurisdiction under 28 U.S.C. § 1291, which creates appellate jurisdiction over "final decisions." In this case, the warden and director are appealing the district court's denial of a motion to dismiss.¹ This denial is not a final judgment. See Ashcroft v. Iqbal , 556 U.S. 662, 671–72, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (recognizing that a similar denial did not constitute a final judgment). But under the collateral-order doctrine, some rulings are immediately appealable notwithstanding the absence of a final judgment. Id. ; Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). These rulings contain decisions that are collateral to the merits but too important for us to deny review and too independent of the underlying claim for us to postpone review. Iqbal , 556 U.S. at 671, 129 S.Ct. 1937.

Here the district court denied qualified immunity to the warden and director, reasoning that the underlying constitutional right had been clearly established. This ruling generally falls within the collateral-order doctrine, for qualified immunity serves to protect the defendant not just from personal liability but also from the ordeal of litigation. Plumhoff v. Rickard , ––– U.S. ––––, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014).

The collateral-order doctrine is triggered only if the appeal turns on a " ‘purely legal issue.’ " Ortiz v. Jordan , 562 U.S. 180, 188, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) (quoting Johnson v. Jones , 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ). Thus, we may not reconsider a district court's assessment of which facts could be proven at trial. Walton v. Powell , 821 F.3d 1204, 1209–10 (10th Cir. 2016).

The issue here is legal, not factual. Because qualified immunity arises here on a motion to dismiss, we must credit all of the plaintiffs' well-pleaded allegations. Schwartz v. Booker , 702 F.3d 573, 579 (10th Cir. 2012). Thus, our decision regarding qualified immunity does not hinge on any factual disputes. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.² In the absence of factual disputes, we confront a purely legal issue: whether the underlying constitutional right was clearly established. Ortiz , 562 U.S. at 188, 131 S.Ct. 884. Thus, we have appellate jurisdiction under the collateral-order doctrine.

II. The Standard of Review, the Standard for Qualified Immunity, and the Plaintiffs' Pleading Burden

Qualified immunity protects public officials who are required to exercise their discretion, shielding them from personal liability for civil damages. Harlow v. Fitzgerald , 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ; Schwartz , 702 F.3d at 579. This type of immunity applies when a public official's conduct does not violate clearly established rights that a reasonable person would have known about. Schwartz , 702 F.3d at 579.

We review de novo the district court's denial of a motion to dismiss based on qualified immunity. Id. In conducting this review, we consider whether the plaintiffs have alleged facts showing

• that the defendants violated a constitutional right and

• that the right was clearly established.

See id. But if the right were not clearly established, we may find qualified immunity without deciding the constitutionality of the conduct. Pearson v. Callahan , 555 U.S. 223, 236–42, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

A constitutional right is clearly established when a Tenth Circuit precedent is on point, making the constitutional violation apparent. Mascorro v. Billings , 656 F.3d 1198, 1208 (10th Cir. 2011).³ This precedent cannot define the right at a high level of generality. Ashcroft v. al-Kidd , 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Rather, the precedent must be particularized to the facts. White v. Pauly , –––U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam). But even when such a precedent exists, subsequent Tenth Circuit cases may conflict with or clarify the earlier precedent, rendering the law unclear. See Lane v. Franks , ––– U.S. ––––, 134 S.Ct. 2369, 2382–83, 189 L.Ed.2d 312 (2014).

A precedent is often particularized when it involves materially similar facts. See White , 137 S.Ct. at 552. But the precedent may be adequately particularized even if the facts differ, for general precedents may clearly establish the law when the defendant's conduct " ‘obvious[ly]’ " violates the law. See id. (quoting Brosseau v. Haugen , 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)). Thus, a right is clearly established when a precedent involves " ‘materially similar conduct ’ " or applies " ‘with obvious clarity ’ " to the conduct at issue. Estate of Reat v. Rodriguez , 824 F.3d 960, 964–65 (10th Cir. 2016) (emphasis in Estate of Reat ) (quoting Buck v. City of Albuquerque , 549 F.3d 1269, 1290 (10th Cir. 2008) ), cert. denied , ––– U.S. ––––, 137 S.Ct. 1434, 197 L.Ed.2d 647 (2017) (Mem.).

By requiring precedents involving materially similar conduct or obvious applicability, we allow personal liability for public officials only when our precedent puts the constitutional violation " ‘beyond debate.’ " White , 137 S.Ct. at 551 (quoting Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam)). Thus, qualified immunity protects all officials except those who are " ‘plainly incompetent or those who knowingly violate the law.’ " Id. (quoting Mullenix , 136 S.Ct. at 308 ).

In the present case, we apply this test in light of the plaintiffs' pleading burden for a § 1983 claim based on the Eighth Amendment. See DeSpain v. Uphoff , 264 F.3d 965, 971 (10th Cir. 2001). To satisfy this burden, the plaintiffs must make two plausible allegations: (1) the conditions were " ‘sufficiently serious' to implicate constitutional protection" and (2) the warden and director acted with " ‘deliberate indifference’ " to the inmates' health. Id. (quoting Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ).

This appeal focuses on the first requirement, which addresses the seriousness of the deprivation. Id. The plaintiffs allege a deprivation of the right to exercise outdoors for roughly eleven months. For the sake of argument, we may assume that this deprivation would violate the Eighth Amendment. Even with this assumption, the warden and director would enjoy qualified immunity because the underlying constitutional right had not been clearly established.

Roughly three decades ago, we recognized a consensus in the case law regarding the importance of outdoor exercise for prisoners: "There is substantial agreement among the cases ... that some form of regular outdoor exercise is extremely important to the...