Apodaca v. Raemisch , 864 F.3d 1071 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 25, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JONATHAN APODACA; JOSHUA
VIGIL, on behalf of themselves and
all others similarly situated,
Plaintiffs-Appellees,
v. No. 15-1454
RICK RAEMISCH, Executive
Director, Colorado Department of
Corrections, in his individual
capacity; TRAVIS TRANI, Warden,
Colorado State Penitentiary, in his
individual capacity,
Defendants-Appellants.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-00845-REB-MJW)
_________________________________
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warden and director distinguish Perkins, relying largely on an unpublished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 F. App’x 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
2
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 (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
3
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 (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 (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.
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, 134 S. Ct. 2012, 2019 (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 (2011) (quoting
Johnson v. Jones, 515 U.S. 304, 313 (1995)). Thus, we may not reconsider
1
The defendants’ motion was titled “Motion to Dismiss or Motion for
Summary Judgment.” This motion included arguments for summary
judgment that are not presently before us. We therefore consider the
motion solely as a motion to dismiss.
4
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. 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. 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 (1982); Schwartz,
2
The inmates argue that jurisdiction is absent because the warden and
director base their argument on the differences between the facts here and
in our prior cases. We disagree. The warden and director are asserting
qualified immunity based on the facts alleged in the inmates’ complaint.
The warden and director refer to the facts in our prior cases only to shed
light on whether the underlying constitutional right was clearly
established. These so-called arguments about “facts” are, in reality,
centered on the abstract legal principle of whether the inmates’ alleged
facts were governed by our existing precedents. See Iqbal, 556 U.S. at 672
(stating that the denial of a motion to dismiss, rejecting a defense of
qualified immunity, turned on an issue of law and was therefore
immediately appealable).
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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 (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.
3
Alternatively, a right can be clearly established by a Supreme Court
precedent or by the weight of authority from case law in other circuits.
Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). But
the plaintiffs do not rely on Supreme Court precedent or the weight of
authority in other circuits; thus, we do not consider these potential sources
for a clearly established right. See Washington v. Unified Gov’t of
Wyandotte Cty., 847 F.3d 1192, 1201 n.3 (10th Cir. 2017) (stating that the
plaintiff must identify the authorities that create the clearly established
right); Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (noting that we
need not consider out-of-circuit authority unless the plaintiff brings this
authority to our attention).
6
al-Kidd, 563 U.S. 731, 742 (2011). Rather, the precedent must be
particularized to the facts. White v. Pauly, 137 S. Ct. 548, 552 (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, 134 S. Ct. 2369, 2382-83 (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
(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 (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, 136 S. Ct. 305, 308
(2015) (per curiam)). Thus, qualified immunity protects all officials except
7
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 (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 psychological and physical
well being of inmates . . . .” Bailey v. Shillinger, 828 F.2d 651, 653 (10th
8
Cir. 1987) (per curiam). But we also made clear that a denial of outdoor
exercise does not per se violate the Eighth Amendment. Id.
In the absence of a per se violation, courts must examine the totality
of the circumstances. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 810 n.8
(10th Cir. 1999). These circumstances include the length of the
deprivation. See DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)
(stating that the length of time that an inmate is exposed to the conditions
“is often of prime importance” under the Eighth Amendment); Craig v.
Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (stating that the inquiry under
the Eighth Amendment turns in part on the duration of the deprivation).
III. The alleged constitutional right was not clearly established.
The plaintiffs rely on our published opinion in Perkins v. Kansas
Department of Corrections. In Perkins, a prisoner invoked the Eighth
Amendment, alleging a continuing inability to exercise outside of his cell
for more than nine months. Perkins, 165 F.3d at 806-07, 809. The district
court dismissed the claim, and we reversed. Id. at 805, 810.
In reversing, we expressed our holding in terms of the denial of
“outdoor exercise.” Id. at 810. But, as noted above, the plaintiff in Perkins
had alleged the inability to exercise not only outdoors but also anywhere
outside of his cell. Id. at 806-07. The resulting issue is whether our
holding was
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 expansive, prohibiting the extended denial of exercise outdoors
or
 narrow, prohibiting only the extended denial of exercise
outside of the cell.
The plaintiffs embrace the expansive interpretation of Perkins. This
interpretation is reasonable based on four facts:
1. Our court referred seven times to the plaintiff’s deprivation of
“outdoor exercise.” Id. at 805-06, 810.
2. Our court expressed the holding in terms of the denial of
outdoor exercise. Id. at 810.
3. Our court relied in part on Bailey v. Shillinger, which had held
that “some form of regular outdoor exercise is extremely
important to the psychological and physical well being of
inmates.” Id. at 810 (quoting Bailey v. Shillinger, 828 F.2d
651, 653 (10th Cir. 1987) (per curiam)); see pp. 8-9, above.
4. A person deprived of out-of-cell exercise is, logically, also
deprived of outdoor exercise. So, a precedent regarding the
denial of “outdoor” exercise could encompass every situation
involving the denial of out-of-cell exercise. But the reverse is
not true. If the court meant to create a precedent regarding the
denial of “out-of-cell” exercise, one might not expect the
holding to be framed more broadly in terms of “outdoor”
exercise.
The warden and director embrace the narrow interpretation of
Perkins, insisting that it applies only to deprivations of out-of-cell
exercise. This interpretation also appears reasonable based on the content
of Perkins and the later unpublished opinion in Ajaj v. United States, 293
F. App’x 575 (10th Cir. 2008).
Perkins contains three features supporting a narrow interpretation:
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1. The plaintiff alleged deprivation of exercise anywhere outside
of his cell, not just outdoors. Id. at 807.
2. The court relied in part on Housley v. Dodson, which had
involved a deprivation of exercise outside of the prisoner’s cell
rather than just outdoors. Id. at 810 (citing Housley v. Dodson,
41 F.3d 597, 599 (10th Cir. 1994)).
3. The court cited multiple cases from other circuits involving
out-of-cell exercise. Id.
In addition, a narrow interpretation is supported by our unpublished
opinion in Ajaj, where we held that a year-long deprivation of outdoor
exercise did not violate the Eighth Amendment. Ajaj v. United States, 293
F. App’x 575, 584 (10th Cir. 2008); see Quinn v. Young, 780 F.3d 998,
1012 n.4 (10th Cir. 2015) (“A recent unpublished opinion . . . further
confirms our view that the Officers had no guidance concerning the
propriety of the challenged [conduct] from extant clearly established
law.”). If Perkins is read broadly, Ajaj might appear to conflict with
Perkins. 4
Which reading of Perkins is correct? We need not decide that today.
For now, it is enough to conclude that the question is within the realm of
4
The Ajaj majority did not cite Perkins. In a concurrence, then-Chief
Judge Henry implied that Perkins had established a precedent involving the
denial of outdoor exercise. See Ajaj, 293 F. App’x at 590 (Henry, C.J.,
concurring). But Chief Judge Henry then seemed to detract from this
approach, concluding that the defendants were entitled to qualified
immunity in part because “prison officials [had] afforded [Mr. Ajaj]
regular solitary indoor exercise opportunities.” Id. at 591.
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reasonable debate, for Perkins can be read either expansively or narrowly.
See A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1147 & n.12 (10th Cir.
2016) (concluding that the law was not clearly established when the
plaintiff had relied on an opinion that “could be reasonably read” in a way
that led the defendant to “reasonably believe[] (even if mistakenly)” that
his actions were permissible); see also Safford Unified Sch. Dist. No. 1 v.
Redding, 557 U.S. 364, 378-79 (2009) (concluding that the law was not
clearly established by a prior Supreme Court opinion because it had been
read differently by “well-reasoned” judges in cases that were “numerous
enough”).
The availability of conflicting interpretations is unsurprising in light
of our competing principles guiding interpretation of precedents like
Perkins. On the one hand, “[t]he language of a judicial decision must be
interpreted with reference to the circumstances of the particular case and
the question under consideration.” Bryan A. Garner et al., The Law of
Judicial Precedent 80 (2016). In Perkins, these circumstances involved the
denial of any exercise opportunities outside of the prisoner’s cell. See
pp. 9-11, above.
But on the other hand, “‘[t]he discovery of what facts are material in
any decision is by no means easy.’” Bryan A. Garner et al., The Law of
Judicial Precedent 80 (2016) (citation omitted). Generally, we ascertain
the materiality of individual facts based on which ones are emphasized in a
12
given opinion. See id. at 81 (“Most cases combine law and fact in ways
that emphasize the central role of the facts.”). In Perkins, the court
appeared to emphasize that the plaintiff was prohibited from exercising
outdoors. See pp. 9-10, above.
At a minimum, Perkins would not render the warden and director
“plainly incompetent” for failing to recognize a constitutional prohibition
against an eleven-month ban on outdoor exercise. Perkins’s ambiguity
means that our circuit has not clearly established a right to outdoor
exercise over an eleven-month period. As a result, the warden and director
are entitled to qualified immunity. 5
IV. The defendants did not knowingly violate the Constitution.
The Supreme Court has recognized that liability extends not only to
“‘plainly incompetent’” officials but also to officials who “‘knowingly
violate the law.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)
(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)); see
Ziglar v. Abbasi, 582 U.S. ___, 2017 WL 2621317, slip. op. at 29 (June 19,
5
The two inmates also rely on Fogle v. Pierson, 435 F.3d 1252, 1260
(10th Cir. 2006) and Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994).
But Fogle’s discussion of the duration of the deprivation was based on the
standard for frivolousness and the subjective prong of the Eighth
Amendment. See Lowe v. Raemisch, No. 16-1300, slip. op. at 8-10 (10th
Cir. July 25, 2017) (to be published). And Housley involved the denial of
exercise anywhere outside the cell (rather than a ban on outdoor exercise).
See id. at 10. These differences could reasonably have led the warden and
director to question the applicability of Fogle and Housley.
13
2017). Based on this language, the plaintiffs allege that the warden and
director knew that they were violating the Constitution in light of a district
court opinion addressing similar conditions at the same prison. Appellees’
Resp. Br. at 24-25 (citing Anderson v. Colorado, 887 F. Supp. 2d 1133 (D.
Colo. 2012)).
We reject this argument based on a key factual distinction with the
district court case, a conflict with Supreme Court precedent, and the
presence of an erroneous assumption.
First, the deprivation in the district court’s earlier case spanned
twelve years. Anderson v. Colorado, 887 F. Supp. 2d 1133, 1138 (D. Colo.
2012). Here the alleged deprivation lasted only about eleven months.
Second, the Supreme Court rejected a nearly identical argument in
Ashcroft v. al-Kidd, 563 U.S. 731 (2011). There the Court concluded that a
district court opinion, which identified the same defendant and said that
his actions had been unconstitutional, did not clearly establish the
underlying right because a district court’s holding is not controlling in any
jurisdiction. al-Kidd, 563 U.S. at 741-42. The same is true here.
Third, the plaintiffs suggest that a defendant’s knowledge affects the
availability of qualified immunity. We reject this suggestion, for there is a
single standard: “whether it would have been clear to a reasonable officer
that the alleged conduct ‘was unlawful in the situation he confronted.’”
Ziglar v. Abbasi, 582 U.S. ___, 2017 WL 2621317, slip. op. at 29 (June 19,
14
2017) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2002)). If this standard
is met, the defendant would be either plainly incompetent or a knowing
violator of the law. See id. (“If so, then the defendant officer must have
been either incompetent or else a knowing violator of the law, and thus not
entitled to qualified immunity.”).
For these reasons, the district court’s earlier ruling does not preclude
qualified immunity. See Lowe v. Raemisch, No. 16-1300, slip op. at Part
2(d) (10th Cir. July 25, 2017) (to be published).
V. Disposition
We conclude that the warden and director did not violate a clearly
established constitutional right. Thus, the district court erred in denying
the motion to dismiss.
Reversed and remanded with instructions to grant the motion to
dismiss the personal-capacity claims based on qualified immunity.
15