Despain v. Uphoff, 99-8003

• Decision Date: 10 July 2001
• Docket Number: No. 99-8003,99-8003
• Citation: 264 F.3d 965
• Parties: (10th Cir. 2001) ROBERT WILLIAM DESPAIN, Plaintiff-Appellant, v. JUDY UPHOFF, in her official capacity as Director, Wyoming Department of Corrections; DUANE SHILLINGER, in his official capacity as Warden, Wyoming State Penitentiary; JAMES FERGUSON, in his official capacity as Deputy Warden, Wyoming State Penitentiary; RONALD G. RUETTGERS, in his official capacity as Associate Warden, Wyoming State Penitentiary; STAN JAMES, in his official capacity as Security Manager, Wyoming State Penitentiary; TOMMY BUSTOS, in his official capacity as Corrections Officer, Wyoming State Penitentiary, Defendants-Appellees,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 965

264 F.3d 965 (10th Cir. 2001)

ROBERT WILLIAM DESPAIN, Plaintiff-Appellant, v. JUDY UPHOFF, in her official capacity as Director, Wyoming Department of Corrections; DUANE SHILLINGER, in his official capacity as Warden, Wyoming State Penitentiary; JAMES FERGUSON, in his official capacity as Deputy Warden, Wyoming State Penitentiary; RONALD G. RUETTGERS, in his official capacity as Associate Warden, Wyoming State Penitentiary; STAN JAMES, in his official capacity as Security Manager, Wyoming State Penitentiary; TOMMY BUSTOS, in his official capacity as Corrections Officer, Wyoming State Penitentiary, Defendants-Appellees,

No. 99-8003

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 10, 2001

Appeal from the United States District Court for the District of Wyoming

(D.C. No. 95-CV-207-D)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Paul H. Schwartz (Steven G. Sklaver with him on the briefs) of Cooley Godward LLP, Denver, Colorado, for Plaintiff-Appellant.

Karen Ashcraft Byrne of Cheyenne, Wyoming, for Defendants-Appellees.

Before TACHA, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Robert DeSpain, an inmate of the Wyoming State Penitentiary, appeals from a grant of summary judgment in favor of prison officials in an action he brought pursuant to 42 U.S.C. 1983 alleging the violation of his Eighth Amendment right to be free from cruel and unusual punishment. Mr. DeSpain based his claims on two separate incidents: the failure by Associate Warden Ron Ruettgers to rectify unsanitary flooding conditions caused by prisoners after a riot, and an unrelated incident two months later in which prison guard Tommy Bustos indiscriminately discharged pepper spray into the unit in which Mr. DeSpain was housed.

The magistrate judge issued a report and recommendation finding that Mr. DeSpain's claims for money damages against defendant prison officials in their official capacities were barred by the Eleventh Amendment. The judge further concluded that injunctive and declaratory relief was improper because Mr. DeSpain had failed to show the events at issue were susceptible to repetition. Finally, the judge concluded Mr. DeSpain had failed to state a claim based on supervisory liability. With respect to Mr. DeSpain's claims against defendants Ruettgers and Bustos individually, the magistrate judge determined these defendants were entitled to qualified immunity on the ground that Mr. DeSpain had failed to show either defendant's conduct violated the Eighth Amendment. The district court conducted a de novo review and adopted the magistrate's report and recommendation.

On appeal, Mr. DeSpain challenges only the district court's ruling that defendants Ruettgers and Bustos are entitled to qualified immunity based on the court's conclusion that, even accepting Mr. DeSpain's version of the disputed facts, he failed to state an Eighth Amendment violation. We exercise jurisdiction under 28 U.S.C. 1291, reverse the grant of summary judgment, and remand for further proceedings consistent with this opinion.

I. Qualified Immunity

In order to promote the efficient administration of public services, the doctrine of qualified immunity "shields government officials performing discretionary functions from individual liability under 42 U.S.C. 1983 unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "[Q]ualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset." Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). Once a defendant asserts qualified immunity as a defense, the plaintiff must carry the burden of showing qualified immunity is not proper under the circumstances. Id. To do this, the plaintiff must show that (1) the defendant's conduct violated a constitutional right and (2) the law governing the conduct was clearly established at the time of the alleged violation. Baptiste, 147 F.3d at 1255.

We review the legal issues surrounding the grant of qualified immunity de novo, viewing all evidence in the light most favorable to Mr. DeSpain as the non-moving party. See id.; Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir. 1992). We turn first to the requirement that the plaintiff show a constitutional violation, and determine whether Mr. DeSpain stated a sufficient claim for violations of his Eighth Amendment rights. As we explain below, Mr. DeSpain presented sufficient facts to support an Eighth Amendment claim stemming from each incident.

A. Constitutional Violation Prison Flooding

Mr. DeSpain claims the conditions during an incident of prison flooding were so egregious as to violate his Eighth Amendment right to be free from cruel and unusual punishment. To prevail on a "conditions of confinement" claim under the Eighth Amendment, an inmate must establish that (1) the condition complained of is "'sufficiently serious'" to implicate constitutional protection, and (2) prison officials acted with "'deliberate indifference' to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 302-03 (1991)). In order to satisfy the first requirement, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. With regard to the second requirement, the Supreme Court has explained that "deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result." Id. at 835. The Court defined this "deliberate indifference" standard as equal to "recklessness," in which "a person disregards a risk of harm of which he is aware." Id. at 836-37. We apply this standard to the prison flooding situation described by Mr. DeSpain.

Nearly every material fact related to the flooding incident is hotly contested, but in reviewing a grant of summary judgment we consider the material facts as they were alleged by the non-moving party, Mr. DeSpain. Those facts show that Mr. DeSpain was one of several prisoners classified as potentially disruptive who were transferred to administrative segregation after another prisoner was murdered in March 1994. Rec., vol. III, doc. 111, exh. V (DeSpain Aff.), 2-3.¹ Several days later, angry at the prison's delay in explaining the transfer, a number of the segregated prisoners plugged their toilets with styrofoam cups and then flushed, resulting in water overflows that left the unit standing in approximately four inches of water. Id. 9-10; doc. 112 (DeSpain Aff.), 11. The prison shut off water to the toilet system to prevent further flooding and sent guards with video cameras to document the flood. Doc. 111, exh. V, 11, 13. The tier janitor was ordered to clean the mess, but he refused and quit his job. Id. 12.

The flooding occurred at approximately 11:30 p.m. on March 28, and the cell unit was ultimately cleaned on the morning of March 30. Id. 9, 24, 25. The toilet system remained off for most of this thirty-six-hour period but was turned on once at around 5:30 p.m. on March 29 so that prisoners could flush their toilets. Id. 21. Mr. DeSpain was exposed to the stench of sitting urine in his toilet and attempted to cover the toilet with a plastic bag, which provided little remedy. Id. 28. Wishing to avoid the same problem, many prisoners eschewed the toilets altogether and urinated through the bars of their cells into the standing water in the walkways. Id. 15, 17; doc. 112, 18. Mr. DeSpain describes hearing prisoners urinate into the water and seeing feces floating amidst other debris in the water near his cell. Doc. 112 19, 23.

The prisoners were served breakfast on the morning of March 29, with officers rolling the food cart through the urine-mixed water. Id. 20. The cart's ground clearance was roughly the same as the water depth, making it difficult to avoid contact between the food and the contaminated water. Id. Food trays were not picked up after lunch service, and at future meals the officers merely kicked the trays out of their way, adding uneaten and partially eaten food to the standing water. Doc. 111, exh. V, 18-19. At supper service, the officers began wearing rubber boots to protect themselves from the mess. Id. 20, 22.

Repulsed by the conditions and fearful of food contamination, Mr. DeSpain avoided eating during the course of the flood. Id. 26. He spent nearly the entire period "confined to [his] bed in [his] cell as if it was an island because it was the only dry area in [his] cell." Id. 27. During lunch service on March 29, he asked a guard if he might clean the tier and his own cell, and the guard responded that no one was to clean, "by orders of [Associate Warden] Ron Ruettgers." Doc. 112, 26-27. Mr. DeSpain describes hearing similar requests from other prisoners, who received the same response. Id. 36. Finally, at mid-morning on March 30, Ron Ruettgers announced there would be no canteen privileges until the tier was clean. Doc. 111, exh. V, 24. Prisoners responded by "[y]elling obscenities and also that they had been trying to clean it for Two Days." Id. Two prisoners were asked to clean the tier, and they did so immediately. Id. 25.

Mr. DeSpain began to suffer psychological distress in the aftermath of the flooding situation. Doc. 112, 99-123. Prison psychiatrists diagnosed him with anxiety and prescribed an anti-anxiety medication. Id. 100. He remained on the medication for several months and eventually replaced the drug therapy with religious techniques for mental discipline. Id. He alleges that his anxiety continues to the present day. Id. 119.²

"Sufficiently Serious" Conditions

The...