Mervin v. Furlong, (10th Cir. 2000)

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UNITED STATESCOURT OF APPEALS

TENTH CIRCUIT

JAMES MERVIN,

Plaintiff-Appellee,

vs.

ROBERT FURLONG, DONALD

TORNOWSKI, TREVER WILLIAMS,

CAPTAIN JARVIS, BEN GRIEGO,

ARISTEDES ZAVARAS, LARRY

NUTTER, individually and in their official capacities,

Defendants-Appellants.No. 99-1135(D.C. No. 93-N-2129)(D.Colo.)

ORDER AND JUDGMENT(*)

Before BRISCOE and PORFILIO, Circuit Judges, andROGERS, Senior DistrictJudge.(**)

Plaintiff brought this action against the defendants, correctional officers at LimonCorrectional Facility (LCF) in Limon, Colorado, pursuant to 42 U.S.C. § 1983 for allegedviolations of his rights under the Eighth Amendment to the United States Constitution. Plaintiff contended that the defendants failed to protect him from a physical and sexualassault by another inmate. This is an appeal from the district court's denial of summaryjudgment to the defendants based on qualified immunity. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

This court reviews the district court's denial of qualified immunity on summaryjudgment de novo. Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir.1998). As with othersummary judgment appeals, we review the evidence in the light most favorable to thenonmoving party. Id. When we review summary judgment decisions involving aqualifiedimmunity defense, however, our review differs from other summary judgment rulings in thatwe must follow the analytical framework established in Siegert v. Gilley, 500 U.S. 226,231-33 (1991). Id. First, we must determine whether the plaintiff has alleged aviolation of aconstitutional right. See Siegert, 500 U.S. at 231-32; Radecki, 146F.3d at 1229. Second,we must consider whether the right allegedly implicated was clearly established at the timeof the events in question. Radecki, 146 F.3d at 1229. "Whether a plaintiff has allegedconduct by a defendant that violates the Constitution and whether that prior law clearlyprohibited the defendant's conduct are questions of law that we review de novo." Id.

II.

The record, when viewed in the light most favorable to the plaintiff, shows thefollowing events. In July 1993, plaintiff was an inmate at LCF. Marvin Gray, a large andpowerful individual with a violent past, was also an inmate at that facility. Gray hadpreviously been administratively punished in 1987 for raping another inmate.

During the latter part of July, 1993, the defendants were made aware that Gray hadbrutally raped another inmate at LCF. During the investigation, the defendants did notremove Gray from general population. Rather, Gray was transferred within the institutionto share a cell with plaintiff. On the night of July 24th, Gray assaulted plaintiff. He choked,beat and raped him. Mervin reported the assault on the morning of July 25th andthedefendants then took steps to isolate Gray.

The defendants do not contest in this appeal that the allegations made by the plaintiffestablish a violation of a constitutional right. Rather, they contend only that the lawconcerning an inmate's right to safety in prison in 1993 was not clearly established. Theyargue that the law did not become clear until the Supreme Court's decision in Farmer v.Brennan, 511 U.S. 825 (1994), one year after the incident in this case.

III.

A government official is entitled to qualified immunity from civil damages when his"conduct does not violate clearly established statutory or constitutional rights of which areasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant pleads qualified immunity, the plaintiff must make the following two-partshowing: (1) demonstrate that the defendant's actions violated a constitutional or statutoryright; and (2) show that the constitutional or statutory rights the defendant allegedly violatedwere clearly established at the time of the conduct at issue. Albright v. Rodriguez, 51F.3d1531, 1534 (10th Cir. 1995). In order for the law to be clearly established, theremust be aSupreme Court or Tenth Circuit decision on point, or the clearly established weight ofauthority from other courts must have found the law to be as the plaintiff maintains. Clantonv. Cooper, 129 F.3d 1147, 1156 (10th Cir. 1997). The contours of the rightmust besufficiently clear that a reasonable officer would understand that what he is doing violatesthat right. V-1 Oil Co. v. Means, 94 F.3d 1420, 1423 (10th Cir. 1996). This is not to saythat an official action is protected by qualified immunity unless the very action in questionhas previously been held unlawful, but it is to say that in the light of preexisting law theunlawfulness must be apparent. Id.

IV.

The law is well-settled that the Eighth Amendment requires prison officials to "takereasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468U.S.517, 526-27 (1984). Suffering physical assaults while in prison is not "part of the penaltythat criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452U.S. 337, 347 (1981). A prison official violates the Eighth Amendment only when tworequirements are met. First, the deprivation alleged must be objectively, "sufficientlyserious." Wilson v. Seiter, 501 U.S. 294 , 298 (1991). For a claim like this one, theinmatemust show that he is incarcerated under conditions posing a substantial risk of serious harm. Helling v. McKinney, 509 U.S. 25, 35 (1993). Second, the official must have acted with"deliberate indifference" to inmate health or safety. Wilson, 501 U.S. at 302-03.

In Farmer, the Supreme Court clarified the "deliberate indifference" standard. TheCourt explicitly rejected an objective test and held that the Eighth Amendment deliberateindifference standard is subjective. Farmer, 511 U.S. at 837. A prison official who"knowsof and disregards an excessive risk to inmate health or safety" is deliberately indifferent forthese purposes. Id.

The arguments of the defendants fail to acknowledge two distinct lines of cases. Inthe prison context, the Supreme Court and other courts have established two very differentstandards depending upon the circumstances. In the normal prison custodial situation, courtshave long applied "deliberate indifference" as the standard. See Estelle v.Gamble, 429 U.S.97, 104, 106 (1976); accord County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998). Inviolent disturbance or excessive force situations, courts have applied a "malicious andsadistic" standard of liability. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986); accord Lewis, 523 U.S. at 852-53. The defendants have confused these differing standards andtheir application to the particular circumstances of the cases cited. The application of thedeliberate indifference standard to the duty of prison officials to protect prisoners from eachother has long been established. The fact that several cases from this Circuit addressinginmate-on-inmate violence cite Whitley rather than Estelle does not absolve thedefendantsfrom liability. These cases do not cite Whitley for the proposition that the"malicious andsadistic" test applies to claims involving assaults by other inmates. Instead, these cases citeWhitley and its progeny for the proposition that "obdurate and wanton" conduct byprisonofficials violates the Eighth Amendment--a point that is entirely consistent with Estelle.

Nor does the definition of "deliberate indifference" announced by the Supreme Courtin Farmer absolve the defendants from liability. In Berry v. City of Muskogee,900 F.2d1489 (10th Cir. 1990) we considered an Eighth Amendment claim by relatives of aprisonerwho had been murdered by fellow inmates. In applying the deliberate indifference standard,we determined that a prison official acts with deliberate indifference if his conductdisregards a known or obvious risk that is very likely to result in the violation of a prisoner'sconstitutional rights. 900 F.2d at 1496. Contrary to the argument of the defendants,subsequent Tenth Circuit decisions did not change or confuse this standard. The SupremeCourt in Farmer rejected this definition of "deliberate indifference." The standardadoptedby the Court heightened the requirements for a finding of deliberate indifference. Thissubsequent change in the law does not create any confusion where the law was well-settledin the Tenth Circuit prior to it. The change in the law does not benefit the defendants wherethe facts support a constitutional violation under both Berry and Farmer. Thedefinitionadopted by the Court in Farmer created a higher standard for the plaintiff to meet. Accordingly, we do not find that the defendants were entitled to qualified immunity. Thedecision of the district court is AFFIRMED.

Entered for the Court

Richard D. Rogers

District Judge

FOOTNOTES

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*.This order and judgment is not bindingprecedent, except under the doctrines of lawof the case, res judicata, and collateral estoppel. The court generally disfavors the citationof orders and judgments; nevertheless, an order and judgment may be cited under the termsand conditions of 10th Cir.R.36.3.

**.The Honorable Richard D. Rogers, SeniorUnited States District Judge for theDistrict of Kansas, sitting by designation.

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