Daniel Weathers v. S. Loumakis ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 15 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL T. WEATHERS, No. 17-17074
Plaintiff-Appellee, D.C. No.
2:15-cv-00027-JAD-PAL
v.
S. LOUMAKIS, Corrections Officer; M. MEMORANDUM*
SUEY, Corrections Officer; R. ADAMS,
Sergeant,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted November 13, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and KOBAYASHI,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Leslie E. Kobayashi, United States District Judge for the
District of Hawaii, sitting by designation.
Defendant correctional officers Loumakis, Suey, and Adams appeal from the
district court’s denial of qualified immunity on Plaintiff Daniel Weathers’ claim
that Defendants violated the Eighth Amendment by making him clean overflowing
sewage without giving him protective gear. Reviewing de novo, Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017), we affirm.
The district court correctly held that Defendants were not entitled to
qualified immunity. In his written statement and his deposition testimony, Plaintiff
stated that Defendants twice made him spend hours cleaning the sewage overflow
from a cell’s malfunctioning toilet without giving him any protective clothing or
gear, aside from a pair of latex gloves. While wearing open-toed sandals, Plaintiff
waded through water full of feces, blood, and vomit, and he was splashed with the
dirty water when he had to scoop feces into a bucket using a dustpan. Meanwhile,
Defendants (wearing rubber "duty boots") watched from a safe distance to avoid
coming into contact with the contaminated water. Viewing the record in the light
most favorable to Plaintiff, Isayeva, 872 F.3d at 946, Defendants deprived him of
"the minimal civilized measure of life’s necessities" by making him clean sewage
without adequate protective gear, and they did so knowing of the obvious risk to
his safety from coming into contact with feces and other human byproducts,
2
Grenning v. Miller-Stout, 739 F.3d 1235, 1238 (9th Cir. 2014) (quoting Hallett v.
Morgan, 296 F.3d 732, 744 (9th Cir. 2002)).
Plaintiff’s right to be free from such conditions while imprisoned was clearly
established by 2013. The Supreme Court "does not require a case directly on
point," Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam), and officials
can have "notice that their conduct violates established law even in novel factual
circumstances," Hope v. Pelzer, 536 U.S. 730, 741 (2002). We have never
squarely confronted a case with facts precisely like these, but we made it clear
decades ago that the Eighth Amendment prohibits depriving inmates of "basic
elements of hygiene" by making them endure prolonged exposure to "unsanitary
conditions such as standing water" and "flooded toilets." Hoptowit v. Spellman,
753 F.2d 779, 783 (9th Cir. 1985). Having to spend hours wading through water
filled with human waste—while wearing open-toed sandals—constitutes a severe,
and thus unconstitutional, "lack of sanitation." Anderson v. County of Kern, 45
F.3d 1310, 1314 (9th Cir. 1995).
AFFIRMED.
3