UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50595
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DEVLIN R. PALMER,
Plaintiff-Appellee,
versus
GARY L. JOHNSON, ET AL.,
Defendants;
BRYAN HARTNETT, Warden; OSCAR MENDOZA, Assistant Warden,
Defendants-Appellants.
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Appeal from the United States District Court for the
Western District of Texas, San Antonio Division
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October 19, 1999
Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Bryan Hartnett and Oscar Mendoza appeal the district court’s
denial of their motion for summary judgment on the ground of
qualified immunity. We affirm.
I
Devlin R. Palmer, an inmate of the Texas prison system,
initiated the instant suit under 42 U.S.C. § 1983, alleging
violations of his constitutional rights and seeking monetary
damages and injunctive relief. Palmer’s claims were based on
events that transpired on October 29 and 30, 1996. According to
Palmer, at approximately 1:30 P.M. on October 29, Palmer and other
members of his squad were reporting to the field for work after
lunch, when they were stopped and lectured by a sergeant. As the
squad resumed walking to the work site, some of its members made
profane remarks about the lecture. The sergeant responded by
halting the squad, drawing a firearm, and ordering the squad
members to sit in the field. At approximately 3:00 P.M., Assistant
Warden Mendoza arrived at the scene. Palmer explained to Mendoza
why the squad had been stopped. Despite the fact that most of the
inmates indicated that they wanted to go to work, Mendoza ordered
them to remain seated in the field.
Warden Hartnett arrived at approximately 5:00 P.M. He ordered
the forty-nine inmates to remain overnight in the field. These
inmates were confined to an area measuring approximately twenty
feet by thirty feet, bounded by poles and a string of lights.
Hartnett directed the correctional officers overseeing the inmates
to shoot anyone who attempted to leave the designated area of the
field. When Palmer asked to leave the area to urinate and
defecate, he was informed that he would have to do so within the
confined space or he would be shot for attempting to escape.1
Palmer also requested and was denied medication to treat insect
bites. Palmer additionally asked that the nearby tractor engines
be turned off because their noxious fumes disturbed him. The
guards indicated that they could not shut the engines without the
1
Palmer elected to avoid defecating because he did not want to
have to remain in close proximity to his waste.
2
warden’s permission because they were being used to keep the
bounded area lit throughout the night.
Palmer had been dressed for a day of work in the fields so he
wore only a short-sleeved shirt. Because he was denied a jacket,
blankets, or other means of keeping warm, Palmer became extremely
cold as the temperature fell below fifty-nine degrees Fahrenheit.
He and his fellow inmates tried to stay warm by huddling together,
piling on top of one another, and digging holes in the dirt in an
unsuccessful attempt to construct earthen walls to block the winds.
Meanwhile, the guards wore jackets and stayed warm by lighting a
fire and by periodically retreating to vehicles with running
heaters. Both Hartnett and Mendoza were aware of these conditions
and observed the inmates during the night.
At approximately 5:30 A.M. on October 30, each inmate was
provided a meal consisting of milk, cereal, and a peanut butter and
jelly sandwich.2 Soon after, Warden Hartnett informed the inmates
that, if they refused to go to work, they would be forced to remain
outside for another night to “freeze again.” Palmer and forty-six
of the other squad members then went to work until approximately
11:30 A.M., when they returned to their unit for lunch.
Soon after he filed his complaint, Palmer moved for partial
summary judgment on the issue of liability. The defendants
asserted the defense of qualified immunity in their answer. The
defendants then moved for summary judgment based on the Eleventh
2
The parties dispute whether the inmates received dinner on the
evening of October 29.
3
Amendment and the doctrine of qualified immunity. The defendants
acknowledged the occurrence of the “sleep-out” and did not deny any
of Palmer’s specific allegations regarding the conditions of his
confinement. According to Warden Hartnett, the sleep-out was not
punitive but was an administrative measure intended to gain control
of unruly inmates.
The magistrate judge recommended dismissing with prejudice
Palmer’s claims against all of the defendants in their official
capacity and against defendant Gary L. Johnson in his individual
capacity. The magistrate judge concluded that defendants Hartnett
and Mendoza were not entitled to qualified immunity and recommended
that the district court issue a partial summary judgment granting
declaratory and injunctive relief against Hartnett and Mendoza in
their individual capacities and allow Palmer’s claims against them
for monetary damages to proceed to trial.
The district court accepted the magistrate judge’s
recommendations, granting in part and denying in part both Palmer’s
summary judgment motion and the defendants’ summary judgment
motion. The district court dismissed with prejudice all of
Palmer’s claims against Johnson as well as his claims against
Hartnett and Mendoza in their official capacities. The district
court found Hartnett and Mendoza to be liable in their individual
capacities for violating Palmer’s rights under the Eighth Amendment
and enjoined them from forcing Palmer to endure any future sleep-
outs without adequate clothing or shelter. The district court
ordered Palmer’s claims for monetary damages against Hartnett and
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Mendoza in their individual capacities to proceed to trial.
Pursuant to Federal Rule of Civil Procedure 59(e), Hartnett
and Mendoza moved to alter or amend the judgment or for
reconsideration or in the alternative for leave to file a
supplemental motion for summary judgment. The magistrate judge
recommended the denial of the motion. The district court accepted
the magistrate judge’s recommendation and denied the defendants’
motion, leaving its previous decision intact. Hartnett and Mendoza
then filed a notice of interlocutory appeal, advancing their claim
of entitlement to the defense of qualified immunity and challenging
the magistrate judge’s recommendations, the district court’s
partial grant of summary judgment and injunctive relief in favor of
Palmer, and the district court’s denial of their motion for
reconsideration.
II
A
We first consider our jurisdiction to consider the merits of
this interlocutory appeal. Ordinarily, we do not have jurisdiction
to review a denial of a summary judgment motion because such a
decision is not final within the meaning of 28 U.S.C. § 1291.
Under the collateral order doctrine, however, a district court’s
denial of qualified immunity on a motion for summary judgment is
immediately appealable if it is based on a conclusion of law. See
Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1995); Mitchell v.
Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1985). Such orders are not
appealable if they are based on a claim regarding the sufficiency
5
of the evidence. See Naylor v. State of Louisiana, Dep’t of
Corrections, 123 F.3d 855, 857 (5th Cir. 1997) (per curiam).
Thus, orders denying qualified immunity are immediately
appealable only if they are predicated on conclusions of
law, and not if a genuine issue of material fact
precludes summary judgment on the question of qualified
immunity. Stated another way, we have jurisdiction over
law-based denials of qualified immunity, but do not have
jurisdiction over a genuine-issue-of-fact-based denial of
qualified immunity.
Id.; see Johnson, 515 U.S. at 313, 115 S. Ct. at 2156 (holding that
district court’s summary judgment order denying qualified immunity
is not immediately appealable when the decision “determines only a
question of ‘evidence sufficiency,’ i.e., which facts a party may,
or may not, be able to prove at trial”). Therefore, if the
district court concludes that the summary judgment record raises a
genuine issue of material fact with respect to whether the defense
of qualified immunity is applicable, then that decision is not
immediately appealable under the collateral order doctrine. See
Petta v. Rivera, 143 F.3d 895, 898 (5th Cir. 1998).
In this case, the district court’s summary judgment decision
addressed both qualified immunity and liability. The district
court’s denial of qualified immunity turned on its conclusion that
the alleged conduct of Hartnett and Mendoza violated Palmer’s
constitutional rights and was objectively unreasonable. To the
extent this determination involves a question of law, as opposed to
an assessment of the facts established by or inferable from the
evidence, we have jurisdiction to review the denial of defendant’s
motion for summary judgment on the basis of qualified immunity; but
on this interlocutory appeal we do not review in this connection
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the district court’s assessment of what facts are established by or
inferable from the evidence. Nor do we have jurisdiction to review
the district court’s grant of Palmer’s motion for summary judgment
holding that defendants are liable for violating his constitutional
rights and are not entitled to qualified immunity.
B
The doctrine of qualified immunity shields a state official
from personal liability for damages under 42 U.S.C. § 1983 when the
official’s exercise of discretionary authority results in a
violation of an individual’s federal constitutional or statutory
rights, “unless at the time and under the circumstances of the
challenged conduct all reasonable officials would have realized
that it was proscribed by the federal law on which the suit is
founded.” Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997). The
bifurcated test for qualified immunity asks whether the plaintiff
has alleged a violation of a clearly established right and, if so,
whether the defendant’s conduct was objectively unreasonable. See
Hare v. City of Corinth, 135 F.2d 320, 325 (5th Cir. 1998).
Currently applicable constitutional standards govern the first
prong of the analysis. See id. at 326. The second prong involves
“two separate inquiries: whether the allegedly violated
constitutional rights were clearly established at the time of the
incident; and, if so, whether the conduct of the defendants was
objectively unreasonable in the light of that then clearly
established law.” Id. at 326 (citations omitted).
Palmer argues that Hartnett and Mendoza violated his rights
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under the Eighth Amendment whereas the appellants argue that the
conditions Palmer experienced did not rise to the level of a
constitutional violation. Although the constitution “does not
mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349,
101 S. Ct. 2392, 2400 (1981), conditions of confinement “must not
involve the wanton and unnecessary infliction of pain.” Id. at
347, 101 S. Ct. at 2399. The Eighth Amendment’s prohibition
against cruel and unusual punishment requires prison officials to
provide “humane conditions of confinement,” ensuring that “inmates
receive adequate food, clothing, shelter, and medical care . . . .”
Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994).
The Supreme Court has held that an inmate must satisfy two
requirements to demonstrate that a prison official has violated the
Eighth Amendment. “First, the deprivation alleged must be,
objectively, ‘sufficiently serious’; a prison official’s act or
omission must result in the denial of ‘the minimal civilized
measure of life’s necessities.’” Id. at 834, 114 S. Ct. at 1977
(citations omitted). Second, “a prison official must have a
‘sufficiently culpable state of mind’” Id., 114 S. Ct. at 1977. In
prison conditions cases, that state of mind is one of deliberate
indifference to inmate health or safety. See id., 114 S. Ct. at
1977. “To establish deliberate indifference . . ., the prisoner
must show that the defendants (1) were aware of facts from which an
inference of an excessive risk to the prisoner’s health or safety
could be drawn and (2) that they actually drew an inference that
such potential for harm existed.” Bradley v. Puckett, 157 F.3d
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1022, 1025 (5th Cir. 1998).
Palmer claims that his overnight outdoor confinement without
shelter, protective clothing, or acceptable means to dispose of his
bodily waste deprived him of the “minimal civilized measures of
life’s necessities.” The appellants attempt to downplay the degree
of the claimed deprivation by deconstructing the elements of the
sleep-out and focusing on its relatively brief duration. We agree
that some aspects of the incident do not evince a constitutional
violation. That Palmer may have missed one meal and may have
endured irritating insect bites without immediate medical attention
does not rise to the level of a cognizable constitutional injury.
See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976)
(holding that deliberate indifference to a prisoner’s serious
medical needs constitutes an Eighth Amendment violation); Talib v.
Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (“Missing a mere one
out of every nine meals is hardly more than that missed by many
working citizens over the same period.”); Green v. Ferrell, 801
F.2d 765, 770-71(5th Cir. 1986) (finding that the provision of only
two nutritionally adequate meals daily does not violate the Eighth
Amendment). Other deprivations resulting from the challenged
conduct, however, are far more serious.
This court has observed that “certain prison conditions [are]
so ‘base, inhuman and barbaric’ that they violate the Eighth
Amendment.” Novak v. Beto, 453 F.2d 661, 665 (5th Cir. 1971). One
such condition is “the deprivation of basic elements of hygiene.”
Id. Palmer claims that he was not allowed to use a bathroom during
9
the seventeen-hour outdoor confinement and was instead told that
his only option was to urinate and defecate in the confined area
that he shared with forty-eight other inmates. The appellants
suggest that Palmer’s experience was no different than that of many
overnight campers and, relying on Smith v. Copeland, 87 F.3d 265
(8th Cir. 1996), argue that the lack of toilet facilities did not
implicate constitutional concerns. In Smith, a pretrial detainee
claimed that he was forced to endure raw sewage because an
overflowed toilet in his cell was not cleaned for four days. The
detainee did not dispute that he declined to flush the toilet or
clean the mess. The Smith court acknowledged that exposure to raw
sewage may constitute cruel and unusual punishment in some cases,
but concluded that the totality of the circumstances in that case
did not amount to a constitutional violation. Id. at 268-69.
However persuasive Smith may be, it is unlike the case before us,
which involves a complete deprivation of toilets for scores of
inmates confined in the same small area. We find that these
conditions constitute a “deprivation of basic elements of hygiene.”
Also troubling is Palmer’s claim that he was forced to
withstand strong winds and cold without the protection afforded by
jackets or blankets. “Prisoners have a right to protection from
extreme cold.” Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.
1997); see Murphy v. Walker, 51 F.3d 714, 721 (7th Cir. 1995)
(noting that a pretrial detainee has a right to adequate heat and
shelter); Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir. 1988)
(holding that a prisoner’s allegations of exposure to the elements
10
during winter months stated a cause of action under the Eighth
Amendment); see also Bienvenu v. Beauregard Parish Police Jury, 705
F.2d 1457, 1460 (5th Cir. 1983) (per curiam) (finding that a
plaintiff’s statements that the defendant “intentionally subjected
him to a cold, rainy, roach-infested facility and furnished him
with inoperative scum-encrusted washing and toilet facilities
sufficiently alleges a cause of action cognizable under 42 U.S.C.
§ 1983 and the eighth and fourteenth amendments”). Palmer claims
that he and the other inmates were reduced to digging in the dirt
to construct loose earthen walls as feeble wind barriers while
their guards warmed themselves with jackets, a fire, and car
heaters. Although the degree to which the temperature actually
fell is relevant to a conclusive determination, Palmer’s
description of the incident suggests that his exposure to the
elements may have risen to the level of a constitutional
deprivation.
As the appellants emphasize, the challenged conduct lasted
only seventeen hours. In addition to duration, however, we must
consider the totality of the specific circumstances that
constituted the conditions of Palmer’s confinement, with particular
regard for the manner in which some of those conditions had a
mutually enforcing effect. See Wilson v. Seiter, 501 U.S. 294,
304, 111 S. Ct. 2321, 2327 (1991); cf. Dixon v. Godinez, 114 F.3d
640, 643 (7th Cir. 1997) (observing that “most successful Eighth
Amendment claims often involve allegations of cold in conjunction
with other serious problems”); McCray v. Burrell, 516 F.2d 357,
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365-68 (4th Cir. 1975) (finding Eighth Amendment violation where
inmate was solitarily confined for forty-six hours in a cold cell
with no clothing or blankets, no running water or personal hygiene
items, and a toilet consisting of an excrement-encrusted hole in
the floor). We find that the totality of the specific
circumstances presented by Palmer’s claim--his overnight outdoor
confinement with no shelter, jacket, blanket, or source of heat as
the temperature dropped and the wind blew along with the total lack
of bathroom facilities for forty-nine inmates sharing a small
bounded area--constituted a denial of “‘the minimal civilized
measure of life’s necessities.’” Farmer v. Brennan, 511 U.S. 825,
834, 114 S. Ct. 1970, 1977 (1994) (citation omitted).
Having demonstrated a sufficiently serious deprivation, Palmer
must establish that Hartnett and Mendoza acted with deliberate
indifference to his health or safety. According to Palmer,
Hartnett ordered the sleep-out and both he and Mendoza were present
during the evening. Palmer also asserts that, on the morning of
October 30, Warden Hartnett threatened another night outdoors to
“freeze again” if they refused to work. This summary judgment
evidence suffices for the requisite showing of deliberate
indifference on the part of the appellants. Thus, for purposes of
the qualified immunity analysis, Palmer has demonstrated a
violation of his clearly established rights under the Eighth
Amendment.
The appellants contend that even if their conduct violated
Palmer’s constitutional rights, they did not act unreasonably in
12
light of the circumstances and the law as established at the time
of the sleep-out. We disagree. When this incident occurred, an
inmate’s right to “humane conditions of confinement” and the prison
official’s concomitant duty to “ensure that inmates receive
adequate food, clothing, shelter, and medical care . . . .” was
well-established. See, e.g., id., 114 S. Ct. at 1976. More
specifically, this court had already made it clear that a prison
official may not subject inmates to significantly cold temperatures
or deprive them of the basic elements of hygiene. See, e.g.,
Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457 (5th Cir.
1983) (per curiam); Daigre v. Maggio, 719 F.2d 1311, 1312 (5th Cir.
1983) (“We concluded over a decade ago that the eighth amendment
forbids deprivation of the basic elements of hygiene.”); Novak v.
Beto, 453 F.2d 661, 665 (5th Cir. 1971); cf. Chandler v. Baird, 926
F.2d 1057, 1065-66 (11th Cir. 1991) (“[T]he right of a prisoner not
to be confined in a cell at so low a temperature as to cause severe
discomfort and in conditions lacking basic sanitation was well
established in 1986.”). We are confident that, given the law at
the time and the circumstances of this case as found by the
district court, no reasonable prison official would have thought it
objectively acceptable to herd forty-nine inmates into a small
outdoor space, deprive them of any protection from excessive cold
and wind, and provide no sanitary means of disposing of their
bodily waste for over seventeen hours. While this to a large
extent depends on just how low the temperature was and just what
the wind chill factor was and how such cold would affect those
13
situated as were the prisoners, these are essentially factual
considerations that were at least implicitly determined by the
district court adversely to defendants’ motion for summary judgment
and are unreviewable on this interlocutory appeal. We therefore
hold that no error of law has been demonstrated in the denial of
defendants’ motion for summary judgment on the basis of qualified
immunity, and in that respect the denial of defendants’ motion is
AFFIRMED. To the extent that defendants challenge either the
district court’s assessment of the facts established by or
inferable from the evidence or the grant of summary judgment in
favor of Palmer on liability (including qualified immunity), the
appeal is DISMISSED.
III.
Accordingly, we AFFIRM in part; DISMISS the appeal in part;
and REMAND the cause for further proceedings.
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