Thompson v. Lengerich ( 2023 )

Appellate Case: 22-1128 Document: 010110813861 Date Filed: 02/16/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 16, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
LARRY ALLEN THOMPSON,
a/k/a Larry Allen Range,
Plaintiff - Appellant,
v. No. 22-1128
(D.C. No. 1:18-CV-00588-RM-SKC)
JASON LENGERICH; JENNIFER (D. Colo.)
HANSEN; WILLIAM CATTELL;
COLORADO DEPARTMENT OF
CORRECTIONS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Larry Allen Thompson is a Colorado inmate. He filed this 42 U.S.C. § 1983lawsuit against several officials from the Colorado Department of Corrections. The
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 22-1128 Document: 010110813861 Date Filed: 02/16/2023 Page: 2
district court dismissed his claims under Federal Rule of Civil Procedure 12(b)(6).
He appeals,1 and we affirm.
I. Background
Mr. Thompson’s operative complaint alleged the following facts. Officials at
the Buena Vista Correctional Facility transferred him to a unit with communal
showers. As prison officials knew, however, he is unable to shower in such a setting
because he suffers posttraumatic stress stemming from sexual abuse he endured as a
child. After his transfer to the new unit, he refused to shower for twenty-five days
until prison officials again allowed him to shower in private.
Mr. Thompson also made allegations about conditions at Buena Vista more
broadly, asserting that the facility was understaffed and overcrowded. His cell
measured fifty-four square feet, with twenty-one-and-a-half square feet of
unencumbered floor space. It had sealed windows and “inadequate ventilation.”
R. at 136. Mr. Thompson shared the cell with another inmate, spending an average
of eighteen to twenty-four hours per day in it. During one lockdown for an influenza
outbreak, he had to remain in the cell for eleven days without cleaning supplies,
allowed out only four times for ten minutes to shower. He also described several acts
of violence (none involving him) that he attributed to staffing shortages. In addition
to describing these specific acts of violence, he alleged that understaffing had led to
1
Mr. Thompson represents himself, so we construe his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
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assaults and murders, but he did not offer specific information about how often such
violence occurred. He was ultimately transferred from Buena Vista to a different
facility.
Based on these allegations, Mr. Thompson raised four claims:
1. Prison officials violated his Fourteenth Amendment right to bodily
privacy by giving him access to only communal showers.
2. Prison officials violated his Fourteenth Amendment right to equal
protection by denying him private showers while providing them to
transgender and intersex inmates.
3. Prison officials violated his Eighth Amendment rights by giving him
access to only communal showers.
4. Jason Lengerich (the Buena Vista warden) violated his Eighth
Amendment rights because the facility was overcrowded and
understaffed.2
The district court dismissed the claims under Rule 12(b)(6), concluding the
defendants are entitled to qualified immunity.
II. Discussion
We review the district court’s dismissal de novo. See Doe v. Woodard,
912 F.3d 1278, 1288 (10th Cir. 2019). At this stage in the litigation, “it is the
defendant’s conduct as alleged in the complaint that is scrutinized for
constitutionality.” Thompson v. Ragland, 23 F.4th 1252, 1256 (10th Cir. 2022)
(brackets and internal quotation marks omitted). We accept as true all well-pleaded
2
Mr. Thompson also presented a claim against the Colorado Department of
Corrections, and the district court dismissed it. Mr. Thompson does not challenge
that ruling in his brief, so he has waived any argument against it. See Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).
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allegations in the complaint and construe them in the light most favorable to the
plaintiff. See Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014). “To survive
dismissal, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Id. (internal quotation marks
omitted).
When a defendant asserts qualified immunity in a motion to dismiss, the
plaintiff must show (1) that the defendant violated a constitutional right and (2) that
the constitutional right was clearly established. See Woodard, 912 F.3d at 1289.
Courts have discretion to decide which qualified-immunity prong to consider first.
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
An “official’s conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Frasier v.
Evans, 992 F.3d 1003, 1014 (10th Cir.) (brackets and internal quotation marks
omitted), cert. denied, 142 S. Ct. 427 (2021). To show that law is clearly established
in our circuit, ordinarily the plaintiff must identify “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.” Id. (internal quotation
marks omitted). The precedent must establish the right in “the specific context of the
case, not as a broad general proposition.” Id. (internal quotation marks omitted).
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A. Fourteenth Amendment Right to Bodily Privacy
Prison officials may restrict an inmate’s privacy rights “only to the extent
necessary to further the correction system’s legitimate goals and policies.” Cumbey
v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982).
Mr. Thompson has not shown a clearly established right to shower in private.
Arguing otherwise, he points to Farmer v. Perrill, 288 F.3d 1254 (10th Cir. 2002).
But Perrill involved strip searches, so it does not clearly establish a right in the
context of this case. See id. at 1257. The district court correctly concluded that the
defendants are entitled to qualified immunity.
B. Fourteenth Amendment Right to Equal Protection
The Equal Protection Clause requires the government to treat similarly situated
people alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). “Individuals are similarly situated only if they are alike in all relevant
respects.” Requena v. Roberts, 893 F.3d 1195, 1210 (10th Cir. 2018) (internal
quotation marks omitted).
Mr. Thompson is not like transgender and intersex inmates in all relevant
respects. Whether an inmate is transgender or intersex is relevant to the inmate’s
need for a private shower because transgender and intersex inmates may face an
additional risk of assault.
This conclusion does not conflict with our prior decision in this case. In an
earlier appeal, we concluded that Mr. Thompson’s equal-protection claim was not
frivolous. Thompson v. Lengerich, 798 F. App’x 204, 213 (10th Cir. 2019). But the
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fact that a claim is not frivolous does not mean it will necessarily survive scrutiny
under Rule 12(b)(6). See Neitzke v. Williams, 490 U.S. 319, 329 (1989).
Mr. Thompson faults the district court for saying that he is not similarly
situated to transgender and intersex inmates in all material respects rather than all
relevant respects. But the district court merely used material as a synonym for
relevant, and we see no error in that. Besides, our de novo review confirms that
Mr. Thompson is not similarly situated to transgender and intersex inmates in all
relevant respects. The district court correctly dismissed his equal-protection claim.
C. Eighth Amendment Conditions-of-Confinement Claims
The Eighth Amendment “does not mandate comfortable prisons.” Rhodes v.
Chapman, 452 U.S. 337, 349 (1981). Conditions may be “restrictive and even
harsh.” Id. at 347. Still, prison officials must “provide humane conditions of
confinement, including adequate food, clothing, shelter, sanitation, medical care, and
reasonable safety from serious bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916
(10th Cir. 2008). A conditions-of-confinement claim has two elements. First, the
alleged conditions must be sufficiently serious—that is, they must “deprive an inmate
of the minimal civilized measure of life’s necessities” or “subject an inmate to a
substantial risk of serious harm.” Brooks v. Colo. Dep’t of Corr., 12 F.4th 1160,
1173 (10th Cir. 2021) (internal quotation marks omitted). Second, the prison official
must act with deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
An official will not be liable unless he “knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
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inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837.
1. Communal showers
Mr. Thompson failed to allege facts that could show officials violated the
Eighth Amendment by giving him access to only communal showers for twenty-five
days. He did not allege that they deprived him of all ways to clean himself, only that
they refused to provide a specific way to do so—private showers. Nor does he allege
facts showing that, in giving him access to only communal showers for twenty-five
days, the defendants disregarded a substantial risk to his health or safety.
2. Overcrowding and understaffing
Requiring Mr. Thompson to share a cell with another inmate did not itself
amount to an Eighth Amendment violation. See Rhodes, 452 U.S. at 348–49. And
Mr. Thompson did not allege facts showing that the cramped conditions and
inadequate ventilation subjected him to a risk of harm.
We are not persuaded otherwise by Mr. Thompson’s reliance on Ramos v.
Lamm, a case involving unconstitutional prison conditions. 639 F.2d 559, 567–70
(10th Cir. 1980). Granted, Mr. Thompson’s cell offered fewer square feet per inmate
than most of the cells in Ramos.3 See id. at 568–69. But the facility in Ramos had
many problems beyond its small cells. For example, the facility had leaky roofs, a
heating and ventilation system that could not provide adequate temperature control
3
The record in Ramos did not disclose the exact size of some cells at issue in
that case. See 639 F.2d at 569 & nn.12 & 14.
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and ventilation, excessive mold and fungus growth, sewage accumulating in cells,
rodent and insect infestations, exposed electrical wiring, broken cell windows, and
stained and soiled bedding. Id. at 569–70. Although Mr. Thompson also alleged
inadequate ventilation in his cell, he failed to allege facts showing that the poor
ventilation created risks to his health. Cf. id. at 569 (explaining that inadequate
ventilation caused excessive odors, heat, and humidity, “creating stagnant air as well
as excessive mold and fungus growth”). In short, we agree with the district court that
Mr. Thompson’s complaint did not allege facts showing conditions anywhere “near
as egregious as the conditions” in Ramos. R. at 270.
Although Mr. Thompson described a handful of violent acts involving other
inmates, he failed to allege facts showing that Mr. Lengerich disregarded a risk that
Mr. Thompson himself would be harmed. A prison official may be liable if “a
prisoner faces an excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843. Mr. Thompson
did not allege facts providing any reason to think he faced a higher risk of attack than
the average Buena Vista inmate. Nor did he allege facts showing that violence at
Buena Vista was so widespread that all inmates in his situation obviously faced a
substantial risk of serious harm.
Here again, Mr. Thompson’s comparison of the conditions at Buena Vista to
those in Ramos does not persuade us. In Ramos, the evidence showed that the facility
in that case had been “plagued with violence and the fear of violence.” 639 F.2d at
572. Indeed, many inmates at the facility in Ramos directed their efforts “at merely
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staying alive.” Id. at 573. Prison records showed “a significant number of stabbings,
assaults, fights, and threats.” Id. And expert witnesses concluded that staffing levels
could not “provide a reasonably safe environment for inmates.” Id. Mr. Thompson’s
complaint does not allege facts showing inmates at Buena Vista faced a comparable
environment.
As for the eleven-day lockdown to address an influenza outbreak,
Mr. Thompson did not allege facts showing that it imposed more than temporary
discomfort. See Hutto v. Finney, 437 U.S. 678, 686–87 (1978) (recognizing that a
“filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and
intolerably cruel for weeks or months”). Nor did he allege facts showing that
Mr. Lengerich disregarded a risk to Mr. Thompson’s health or safety during the
lockdown.
For these reasons, the district court correctly concluded that Mr. Lengerich is
entitled to qualified immunity.
D. Discretionary Rulings
Mr. Thompson challenges the district court’s rulings denying him appointed
counsel and staying discovery. We review these rulings for an abuse of discretion.
See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (appointed counsel);
Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir. 2002) (staying
discovery). Mr. Thompson’s claims are not complicated, and they lack merit. In
addition, he capably presented the claims. So the district court did not abuse its
discretion by declining to appoint counsel. See Rucks, 57 F.3d at 979 (identifying
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factors bearing on whether to appoint counsel). Nor did the court abuse its discretion
when it stayed discovery, for “a district court may stay discovery upon the filing of a
dispositive motion based on qualified immunity.”4 Stonecipher v. Valles, 759 F.3d
1134, 1148 (10th Cir. 2014).
III. Conclusion
We affirm the district court’s dismissal. We deny as moot Mr. Thompson’s
motion to proceed without prepaying costs or fees; he has paid the filing fee in full.
Entered for the Court
Bobby R. Baldock
Circuit Judge
4
To the extent Mr. Thompson separately argues that the district court should
have conducted an “independent judicial investigation,” we reject that argument.
Aplt. Br. at 6. Mr. Thompson cites no authority requiring a judicial investigation.
10