Sherwood v. County of Oklahoma , 42 F. App'x 353 ( 2002 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUL 10 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    DAVID SHERWOOD,
    Plaintiff - Appellant,
    v.                                                          No. 01-6194
    (D. C. No. 00-CV-466-C)
    OKLAHOMA COUNTY, a political                            (W. D. Oklahoma)
    subdivision of the State of Oklahoma, by
    and through its Commissioners;
    JOHN WHETSEL, Sheriff of Oklahoma
    County; JOHNNY DIRCK, Colonel,
    Oklahoma County Sheriff’s Office;
    CARSON MARSHALL, Major,
    Oklahoma County Sheriff’s Office;
    and CHESTER LONGACRE,
    Captain, Oklahoma County Sheriff’s
    Office, Individually and in their
    official capacity,
    Defendants - Appellees.
    ORDER AND JUDGMENT*
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    Before EBEL, McKAY, Circuit Judges, and SAM, Sr. District Judge.**
    This 42 U.S.C. § 1983 action challenges the decision of Defendant Oklahoma
    County Sheriff John Whetsel and Defendants Oklahoma County, Johnny Dirck, Carson
    Marshall, and Chester Longacre (collectively the “Defendants”) to require Plaintiff
    David Sherwood to supervise inmates in the painting of various vehicles owned by
    Defendant Oklahoma County. Plaintiff alleges he was forced to supervise the painting
    even after Defendants were notified of the potential serious health hazards associated
    with the process and type of paint being used. Plaintiff asserts further that Defendants
    failed to provide proper equipment to ensure the painting could be done safely, and that
    on prior occasions the Oklahoma County Department of Health had stopped Defendants
    from painting due to lack of proper safety equipment. As a result of the painting, Plaintiff
    alleges he suffered serious harm.
    Plaintiff claims that Defendants are liable under § 1983 for abusing their power
    and thereby violating his substantive due process rights by recklessly and/or intentionally
    exposing him to an unreasonable risk of harm. Plaintiff claims Defendants’ actions are
    sufficient to meet the shock the contemporary conscience standard applied to substantive
    **
    The Honorable David Sam, Senior Judge, United States District Court for the
    District of Utah, sitting by designation.
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    due process claims. The district court rejected Plaintiff’s claims and granted Defendants
    summary judgment, holding that Plaintiff failed to demonstrate a constitutional violation.
    I. BACKGROUND
    Plaintiff was initially hired by the Oklahoma County Sheriff’s Office in January
    1992. Sometime in 1995 Plaintiff was transferred from detention functions to the
    maintenance center where his responsibilities included painting, among other things.
    Defendant John Whetsel took office as Sheriff of Oklahoma County in January
    1997. Early in his administration he made a decision to have the fleet of Sheriff’s
    vehicles repainted. After discussing the repainting operation with a county commissioner,
    it was determined that the repainting of the fleet would be accomplished at the County’s
    District 3 maintenance facility. Whetsel assigned the task of working out the plan to
    Defendant Undersheriff/Colonel Johnny Dirck.
    Early in 1997, the planned District 3 painting operation was shut down for health
    and safety reasons by the Oklahoma County Health and Safety Department because the
    County did not have a proper spray paint booth conducive to painting vehicles.
    Undersheriff Dirck discussed the shut down, and the reasons for it, with Sheriff Whetsel.
    The Sheriff and Undersheriff were also put on notice at this point that the procedure was
    governed by OSHA regulations.
    Nevertheless, shortly after the initial shut-down, and after determining that a
    commercial repainting would cost approximately $300.00 per vehicle, the Sheriff
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    continued his efforts to have the vehicles painted in-house. He ordered paint and
    materials for the construction of a make-shift paint booth at the Sheriff’s Training Center
    located in a remote, semi-rural part of Oklahoma County. Neither the Sheriff nor anyone
    else involved in the construction of the paint booth discussed the issue of proper
    ventilation, even though ventilation had been an issue involved in the shut-down of the
    District 3 painting operation.
    The Training Center paint booth was observed by an enforcement officer of the
    County Health and Safety office in April 1997. Plaintiff and another county employee
    were told by the enforcement officer that the make-shift paint booth was not OSHA-
    approved1. In addition, that same month, Sheriff Wetsel was personally advised in
    writing by the director of the Oklahoma County Health and Safety Department that the
    planned painting operation at the Sheriff’s Training Center was dangerous to the health
    and safety of workers and did not comply with applicable workplace safety regulations or
    environmental regulations. The Sheriff’s office responded to the notice and indicated that
    they would not attempt to do any more spray painting of vehicles.
    1
    “[W]hile federal OSHA regulations do not directly apply to state agencies, they
    are still binding on state agencies because they have been adopted, in whole, by the
    Oklahoma Public Employees Occupational Safety and Health Administration (PEOSH)
    and are mandatory workplace rules.” Appellant’s Application to Submit Supplemental
    Appendix. Defendants did not oppose Appellant’s motion or this submission which
    includes the quoted statement of law. Accordingly, the Court grants the
    application/motion to file an additional appendix and has considered the supplemental
    information in making its decision.
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    Despite the Sheriff’s response to the health department’s warning the previous
    year, in March 1998 Defendants ordered Plaintiff Sherwood to supervise inmates in
    painting the vehicles in question at the Training Center. His protests were dismissed and
    Plaintiff alleges he was threatened with discharge if he did not complete the painting
    project. No steps were taken by those in authority to ensure that the operation would
    comply with OSHA regulations. The painting operation at the Training Center did not
    have any ventilation and the workers were not given any safety equipment despite the
    Sheriff’s Office having been put on notice that proper ventilation was an important issue
    and despite Plaintiff’s requests for safety equipment. The paint used was highly toxic,
    and Plaintiff and the inmates involved in the painting operation have suffered serious
    health consequences as a result. Specifically, Plaintiff contracted occupational asthma,
    difficulty in memory and concentration, and painful, uncontrollable twitching spasms, and
    is disabled from working.
    Plaintiff brought this action predicated upon his substantive due process rights as
    well as other pendant state law tort claims. The district court granted Defendants’ motion
    for summary judgment on Plaintiff’s § 1983 claims ruling that Plaintiff had failed to
    identify conduct which was shocking to the contemporary conscience and therefore had
    failed to establish the existence of a Constitutional right, much less any violation of such
    a right by Defendants. The district court thereafter dismissed, without discussion,
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    Plaintiff’s pendant state claims. The district court did not discuss or rule on the issue of
    qualified immunity. Plaintiff now appeals the district court’s ruling on his § 1983 claims.
    II. DISCUSSION
    We review “the grant of summary judgment de novo, applying the same standards
    used by the district court.” Byers v. City of Albuquerque, 
    150 F.3d 1271
    , 1274 (10th Cir.
    1998). Since there are no material facts in dispute2, the Court proceeds to determine
    whether the district court correctly applied the substantive law. See Uhlrig v. Harder, 
    64 F.3d 567
    , 571 (10th Cir. 1995) (quoting Applied Genetics Int’l, Inc. v. First Affiliated
    Sec., Inc., 
    912 F.2d 1238
    , 1241 (10th Cir. 1990).
    Both the parties and the district court utilized the now-familiar shock the
    conscience standard to analyze Plaintiff’s claims to determine if he had sufficiently
    alleged facts which, if proven, state a substantive due process claim. Collins v. City of
    Harker Heights Tex., 
    503 U.S. 115
    (1992), offers guidance in considering the scope of
    substantive due process violations. In Collins, the representative of a decedent sued the
    City under § 1983 for providing an unsafe workplace when it caused a worker to enter a
    sewer without adequate ventilation and the worker died as a result. The Court held that
    the City did not violate the worker’s substantive due process rights, explaining that “[t]he
    Due Process Clause ‘is not a guarantee against incorrect or ill-advised [government]
    2
    Aplt. App. at 246.
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    decisions.’ Nor does it guarantee municipal employees a workplace that is free of
    unreasonable risks of harm.” 
    Id. at 129
    (quoting Bishop v. Wood, 
    426 U.S. 341
    , 350
    (1976)). Rather, “the Due Process Clause of the Fourteenth Amendment was intended to
    prevent government ‘from abusing [its] power, or employing it as an instrument of
    oppression.’” 
    Id. at126 (quoting
    DeShaney v. Winnebago County Dept. of Social
    Services, 
    489 U.S. 189
    , 196 (1989) (quotations omitted)). Hence, Collins held that only
    government conduct that is arbitrary or conscience shocking in a constitutional sense can
    form the basis for a substantive due process claim. See 
    Collins, 503 U.S. at 116
    .
    Using that standard, the district court concluded that “while the conduct alleged by
    Plaintiff is troublesome, it cannot be said it shocks the conscience.” Aplt. App at 261.
    The district court cited and relied on Tenth Circuit authority to the effect that,
    to satisfy the ‘shock the conscience’ standard, a plaintiff must do more than
    show that the government actor intentionally or recklessly caused injury to
    the plaintiff by abusing or misusing government power. That is, the
    plaintiff must demonstrate a degree of outrageousness and a magnitude of
    potential or actual harm that is truly conscience shocking.
    
    Id. (quoting Uhlrig,
    64 F.3d at 574). The Court in Uhlrig went on to state that “[t]he level
    of conduct required to satisfy this additional requirement cannot precisely be defined, but
    must necessarily evolve over time from judgments as to the constitutionality of specific
    government conduct.” 
    Uhlrig, 64 F.3d at 574
    .
    County of Sacramento v. Lewis, 
    523 U.S. 833
    (1998), is one such step in that
    evolution and is directly relevant to Plaintiff’s claims. The issue in Sacramento was
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    whether a police officer violates the Fourteenth Amendment’s guarantee of substantive
    due process by causing death through deliberate or reckless indifference to life in a high-
    speed automobile chase aimed at apprehending a suspected offender. The Court held in
    such a situation that “only a purpose to cause harm unrelated to the legitimate object of
    arrest” would amount to arbitrary conduct shocking to the conscience, thereby creating
    substantive due process liability. 
    Sacramento, 523 U.S. at 836
    .
    As a foundation for its analysis of the facts in Sacramento, the Court outlined the
    development of constitutional law in this area. It is well-established that negligent
    conduct is “categorically beneath the constitutional due process threshold.” See Daniels
    v. Williams, 
    474 U.S. 327
    , 328 (1986) (“[T]he Due Process Clause is simply not
    implicated by a negligent act of an official causing unintended loss of or injury to life,
    liberty, or property.” (emphasis in original)). At the other end of the culpability spectrum
    discussed in Sacramento is conduct deliberately intended to injure in some way
    unjustifiable by any government interest. See 
    Sacramento, 523 U.S. at 331
    (quoting
    
    Daniels, 474 U.S. at 331
    (“Historically, this guarantee of due process has been applied to
    deliberate decisions of government officials to deprive a person of life, liberty, or
    property.” (emphasis in original)). Unfortunately, Plaintiff Sherwood’s claims do not fall
    at either end of this culpability spectrum. Rather, his claims of reckless/deliberate
    indifference fall within the middle range. Nevertheless, the Court has “recognized the
    possibility that some official acts in [the middle] range may be actionable under the
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    Fourteenth Amendment, . . .” 
    Sacramento, 523 U.S. at 849
    . This is particularly so when
    defendants have an opportunity to deliberate.
    [L]iability for deliberate indifference to inmate welfare rests upon the
    luxury enjoyed by prison officials of having time to make unhurried
    judgments, upon the chance for repeated reflection, largely uncomplicated
    by the pulls of competing obligations. When such extended opportunities to
    do better are teamed with protracted failure even to care, indifference is
    truly shocking. But when unforeseen circumstances demand an officer’s
    instant judgment, even precipitate recklessness fails to inch close enough to
    harmful purpose to spark the shock that implicated “the large concerns of
    the governors and the governed.”
    
    Id. at 853
    (emphasis added, citation omitted).
    In such middle-range cases, the totality of the facts in a given case, combined with
    circumstance and context, become critical factors to use in evaluating behavior of
    government actors that amounts to more than negligence but less than intent to harm. For
    it follows that “[d]eliberate indifference that shocks in one environment may not be so
    patently egregious in another, and our concern with preserving the constitutional
    proportions of substantive due process demands an exact analysis of circumstances before
    any abuse of power is condemned as conscience shocking.” 
    Id. at 850.
    In comparing Defendants’ actions to the specific government conduct in the cases
    cited in Sacramento, the following facts are compelling. Defendants ordered Plaintiff to
    paint the vehicles using hazardous paint in a make-shift paint booth with no ventilation or
    other safety equipment. Plaintiff was at risk of losing his job if he refused, despite clear
    information that the painting operation was in violation of law and in violation of state
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    and federal safety regulations that had been brought to Defendants’ attention by the
    director of the Oklahoma County Health and Safety Department. His employment and his
    right to work and earn a living were threatened by those in authority over him if he failed
    to comply with the order from Defendants to paint the vehicles; yet, the uncontroverted
    facts indicate Defendants’ deliberate indifference to Plaintiff’s health and safety put
    Plaintiff at serious risk if he did comply with the order. Plaintiff was in a classic lose/lose
    situation.
    These facts compel a different result than those in Collins where the plaintiff’s
    allegations that failure to train and warn employees about existing, known workplace
    hazards created a constitutional deprivation were unsuccessful. 
    Collins, 503 U.S. at 115
    .
    Plaintiff’s facts are also distinguishable from those in Sacramento where the state actors
    did nothing to create the dangerous situation, they merely reacted to it under
    circumstances requiring an immediate response. See 
    Sacramento, 523 U.S. at 855
    . In
    the case before this court, the hazardous conditions were created by the state actors who
    then ordered Plaintiff to expose himself to almost certain injury or lose his job.
    Time and opportunity to deliberate are additional factors affecting the standard of
    fault. See, e.g., Barrie v. Grand County, Utah, 
    119 F.3d 862
    , 867 (10th Cir. 1997);
    Weyant v. Okst, 
    101 F.3d 845
    , 856 (2d Cir. 1996) (deliberately indifferent conduct is
    enough to satisfy the fault requirement for due process claims based on the medical needs
    of someone jailed while awaiting trial). “[J]ust as the description of the custodial prison
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    situation shows how deliberate indifference can rise to a constitutionally shocking level,
    so too does it suggest why indifference may well not be enough for liability in the
    different circumstances of ” cases involving high speed chases or violent disturbances
    like prison riots. See 
    Sacramento, 523 U.S. at 852
    (no substantive due process violation
    where a police officer fulfilling legitimate government objective engages in a high speed
    chase with no time or opportunity for deliberate, reflective thought, despite fatal end
    results); see also Whitley v. Albers, 
    475 U.S. 312
    , 320 (1986) (in cases involving violent
    prison disturbances, a deliberate indifference standard does not adequately capture the
    importance of the competing obligations faced by prison officials, or convey the
    appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under
    pressure, and frequently without the luxury of a second chance). Hence, the standard of
    fault is necessarily influenced by the state actor’s immediate circumstances. Where there
    is time for thoughtful deliberation, defendants are held to a higher standard. Conversely,
    where circumstances necessitate split second judgments, the Court has held a much higher
    standard of fault than deliberate indifference has to be shown for liability.
    In the present case, Defendants had over a year to contemplate their actions and the
    consequences of their conduct. Defendants conceived of the painting plan early in 1997
    and it was eventually accomplished, despite two ordered shut-downs, in March 1998.
    The undisputed evidence suggests the repeated warnings and safety communications from
    all sides did little or nothing to deter Defendants from their plan to paint the vehicles. To
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    the contrary, Defendants simply moved the operation to a remote part of Oklahoma
    County and proceeded to order Plaintiff and the inmates to do the job without any safety
    equipment or proper ventilation and without any apparent regard for Plaintiff’s safety.
    Applying the reasoning outlined in Sacramento, Plaintiff has pled facts which are
    sufficient to allow the question of Defendants’ conduct to go before a jury. The law
    recognizes a constitutional violation based on deliberate indifference where defendants
    create a dangerous situation, enjoy the luxury of making an unhurried judgment, have the
    chance for repeated reflection largely uncomplicated by competing obligations, and
    nevertheless take action which at “best sanction[s], at worst intend[s]” Plaintiff’s injury.
    See Eddy v. Virgin Islands Water and Power Authority, 
    955 F. Supp. 468
    , 475,
    reconsidered, 
    961 F. Supp. 113
    (D.V.I 1997) (“Although Mr. Eddy does not state that the
    defendants specifically intended to injure him, he does allege that they were virtually
    certain that he would suffer injury. Plaintiff further alleges that, notwithstanding this
    knowledge, [defendant] ordered him to perform the work after providing him equipment
    which violated numerous OSHA regulations.”). See also 
    Sacramento, 523 U.S. at 855
    (Finding of no substantive due process cause of action affected by fact that police had
    done nothing to cause the high-speed driving of the suspect, nothing to cause the suspect
    to flout the commonly understood law enforcement authority to control traffic, and
    nothing to encourage the suspect to race through traffic at breakneck speed forcing other
    drivers out of their travel lanes. Rather, the suspect’s outrageous behavior was
    - 12 -
    instantaneous and so was the officer’s instinctive response.). Concern about Plaintiff’s
    and the inmates’ welfare was not only possible, but one would think obligatory, given
    Defendants’ position of authority over Plaintiff and the undisputed information given to
    Defendants about the serious safety and health hazards posed by the planned painting.
    Hence, the facts and circumstances presented to the Court evidence the possibility that a
    reasonable jury could find Defendants’ behavior was egregious, outrageous and recklessly
    indifferent to the serious consequences imposed on Plaintiff.
    Finally, the exercise of governmental power by the Defendants in the instant case
    is without any reasonable justification in the service of a legitimate governmental
    objective. Neither was Defendants’ judgment impeded by the pulls of competing
    obligations. In the case of a high-speed police chase, the legitimate governmental
    objective is apprehension of suspected criminals and the need to “show that flight from
    the law is no way to freedom.” See 
    Sacramento, 523 U.S. at 853
    . Defendants’
    “competing interests” in the instant case pale by comparison. With time to make an
    unhurried judgment and with accurate information outlining the applicable regulations
    and attendant risks and dangers involved with the proposed painting operation,
    Defendants placed their desire to paint old vehicles (which were not even worth spending
    $300.00 a piece on) over the health, safety, and welfare of Plaintiff. Such arbitrary action
    pursued without any reasonable justification makes the Defendants’ deliberate
    indifference to the rights, health and welfare of the Plaintiff actionable.
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    The parties raised additional issues in connection with the motion for summary
    judgment before the district court which were not addressed by the district court opinion.
    Whether the individual Defendants are entitled to qualified immunity, and whether the
    municipality is liable either because of its own conduct or because of the actions of
    Defendants, or any of them, in their official capacity are questions the district court found
    unnecessary to decide given its disposition of the constitutional question. This Court
    declines to rule on those issues where the district court has not made findings in the first
    instance.
    Accordingly, we reverse the judgment of the district court and remand the case for
    further consideration.
    III. CONCLUSION
    For the reasons set forth above, the district court’s order granting Defendants’
    motion for summary judgment is REVERSED and the matter is REMANDED to the
    district court.
    Entered for the Court
    David Sam
    Senior District Judge
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