Apodaca v. Raemisch, 10th Cir. (2017)
Apodaca v. Raemisch, 10th Cir. (2017)
Apodaca v. Raemisch, 10th Cir. (2017)
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
Plaintiffs-Appellees,
v. No. 15-1454
Defendants-Appellants.
_________________________________
prison for roughly eleven months. During that time, the inmates were
outdoor exercise led the two inmates to sue the prison warden and the
1983 and claiming violation of the Eighth Amendment. For these claims,
The warden and director moved to dismiss, arguing that (1) the
Amendment and (2) qualified immunity applies. For these arguments, the
opinion in our court, Ajaj v. United States, 293 F. Appx 575 (10th Cir.
2008).
The district court denied the motion to dismiss, reasoning that the
two inmates had stated a plausible claim for relief. Because the warden and
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Amendment, the underlying constitutional right would not have been
clearly established.
The right would not have been clearly established because existing
precedent would have left the constitutional question within the realm of
outdoor exercise for eleven months. But, under a narrow reading, Perkins
I. Appellate Jurisdiction
Co. v. Citizens for a Better Envt, 523 U.S. 83, 94 (1998). The two inmates
district court. This challenge fails, for we have jurisdiction under the
collateral-order doctrine.
over final decisions. In this case, the warden and director are appealing
3
the district courts denial of a motion to dismiss. 1 This denial is not a final
judgment. See Ashcroft v. Iqbal, 556 U.S. 662, 671-72 (2009) (recognizing
that a similar denial did not constitute a final judgment). But under the
Indus. Loan Corp., 337 U.S. 541, 546 (1949). These rulings contain
decisions that are collateral to the merits but too important for us to deny
Here the district court denied qualified immunity to the warden and
director, reasoning that the underlying constitutional right had been clearly
for qualified immunity serves to protect the defendant not just from
purely legal issue. Ortiz v. Jordan, 562 U.S. 180, 188 (2011) (quoting
Johnson v. Jones, 515 U.S. 304, 313 (1995)). Thus, we may not reconsider
1
The defendants motion was titled Motion to Dismiss or Motion for
Summary Judgment. This motion included arguments for summary
judgment that are not presently before us. We therefore consider the
motion solely as a motion to dismiss.
4
a district courts assessment of which facts could be proven at trial. Walton
well-pleaded allegations. Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir.
2012). Thus, our decision regarding qualified immunity does not hinge on
any factual disputes. See Iqbal, 556 U.S. at 678. 2 In the absence of factual
constitutional right was clearly established. Ortiz, 562 U.S. at 188. Thus,
exercise their discretion, shielding them from personal liability for civil
2
The inmates argue that jurisdiction is absent because the warden and
director base their argument on the differences between the facts here and
in our prior cases. We disagree. The warden and director are asserting
qualified immunity based on the facts alleged in the inmates complaint.
The warden and director refer to the facts in our prior cases only to shed
light on whether the underlying constitutional right was clearly
established. These so-called arguments about facts are, in reality,
centered on the abstract legal principle of whether the inmates alleged
facts were governed by our existing precedents. See Iqbal, 556 U.S. at 672
(stating that the denial of a motion to dismiss, rejecting a defense of
qualified immunity, turned on an issue of law and was therefore
immediately appealable).
5
702 F.3d at 579. This type of immunity applies when a public officials
conduct does not violate clearly established rights that a reasonable person
See id. But if the right were not clearly established, we may find qualified
Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir. 2011). 3 This
3
Alternatively, a right can be clearly established by a Supreme Court
precedent or by the weight of authority from case law in other circuits.
Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). But
the plaintiffs do not rely on Supreme Court precedent or the weight of
authority in other circuits; thus, we do not consider these potential sources
for a clearly established right. See Washington v. Unified Govt of
Wyandotte Cty., 847 F.3d 1192, 1201 n.3 (10th Cir. 2017) (stating that the
plaintiff must identify the authorities that create the clearly established
right); Cox v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (noting that we
need not consider out-of-circuit authority unless the plaintiff brings this
authority to our attention).
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al-Kidd, 563 U.S. 731, 742 (2011). Rather, the precedent must be
particularized to the facts. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per
curiam). But even when such a precedent exists, subsequent Tenth Circuit
cases may conflict with or clarify the earlier precedent, rendering the law
similar facts. See White, 137 S. Ct. at 552. But the precedent may be
may clearly establish the law when the defendants conduct obvious[ly]
violates the law. See id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199
to the conduct at issue. Estate of Reat v. Rodriguez, 824 F.3d 960, 964-65
Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008)), cert. denied, ___ U.S.
White, 137 S. Ct. at 551 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam)). Thus, qualified immunity protects all officials except
7
those who are plainly incompetent or those who knowingly violate the
pleading burden for a 1983 claim based on the Eighth Amendment. See
DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). To satisfy this
burden, the plaintiffs must make two plausible allegations: (1) the
protection and (2) the warden and director acted with deliberate
right to exercise outdoors for roughly eleven months. For the sake of
argument, we may assume that this deprivation would violate the Eighth
Amendment. Even with this assumption, the warden and director would
well being of inmates . . . . Bailey v. Shillinger, 828 F.2d 651, 653 (10th
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Cir. 1987) (per curiam). But we also made clear that a denial of outdoor
of the circumstances. Perkins v. Kan. Dept of Corr., 165 F.3d 803, 810 n.8
deprivation. See DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)
(stating that the length of time that an inmate is exposed to the conditions
Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (stating that the inquiry under
for more than nine months. Perkins, 165 F.3d at 806-07, 809. The district
outdoor exercise. Id. at 810. But, as noted above, the plaintiff in Perkins
had alleged the inability to exercise not only outdoors but also anywhere
outside of his cell. Id. at 806-07. The resulting issue is whether our
holding was
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expansive, prohibiting the extended denial of exercise outdoors
or
of Perkins and the later unpublished opinion in Ajaj v. United States, 293
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1. The plaintiff alleged deprivation of exercise anywhere outside
of his cell, not just outdoors. Id. at 807.
exercise did not violate the Eighth Amendment. Ajaj v. United States, 293
F. Appx 575, 584 (10th Cir. 2008); see Quinn v. Young, 780 F.3d 998,
confirms our view that the Officers had no guidance concerning the
Perkins. 4
For now, it is enough to conclude that the question is within the realm of
4
The Ajaj majority did not cite Perkins. In a concurrence, then-Chief
Judge Henry implied that Perkins had established a precedent involving the
denial of outdoor exercise. See Ajaj, 293 F. Appx at 590 (Henry, C.J.,
concurring). But Chief Judge Henry then seemed to detract from this
approach, concluding that the defendants were entitled to qualified
immunity in part because prison officials [had] afforded [Mr. Ajaj]
regular solitary indoor exercise opportunities. Id. at 591.
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reasonable debate, for Perkins can be read either expansively or narrowly.
See A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1147 & n.12 (10th Cir.
2016) (concluding that the law was not clearly established when the
his actions were permissible); see also Safford Unified Sch. Dist. No. 1 v.
Redding, 557 U.S. 364, 378-79 (2009) (concluding that the law was not
enough).
But on the other hand, [t]he discovery of what facts are material in
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given opinion. See id. at 81 (Most cases combine law and fact in ways
that emphasize the central role of the facts.). In Perkins, the court
means that our circuit has not clearly established a right to outdoor
The Supreme Court has recognized that liability extends not only to
violate the law. White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)
(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)); see
Ziglar v. Abbasi, 582 U.S. ___, 2017 WL 2621317, slip. op. at 29 (June 19,
5
The two inmates also rely on Fogle v. Pierson, 435 F.3d 1252, 1260
(10th Cir. 2006) and Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994).
But Fogles discussion of the duration of the deprivation was based on the
standard for frivolousness and the subjective prong of the Eighth
Amendment. See Lowe v. Raemisch, No. 16-1300, slip. op. at 8-10 (10th
Cir. July 25, 2017) (to be published). And Housley involved the denial of
exercise anywhere outside the cell (rather than a ban on outdoor exercise).
See id. at 10. These differences could reasonably have led the warden and
director to question the applicability of Fogle and Housley.
13
2017). Based on this language, the plaintiffs allege that the warden and
director knew that they were violating the Constitution in light of a district
Resp. Br. at 24-25 (citing Anderson v. Colorado, 887 F. Supp. 2d 1133 (D.
Colo. 2012)).
district court case, a conflict with Supreme Court precedent, and the
twelve years. Anderson v. Colorado, 887 F. Supp. 2d 1133, 1138 (D. Colo.
2012). Here the alleged deprivation lasted only about eleven months.
Ashcroft v. al-Kidd, 563 U.S. 731 (2011). There the Court concluded that a
district court opinion, which identified the same defendant and said that
his actions had been unconstitutional, did not clearly establish the
Ziglar v. Abbasi, 582 U.S. ___, 2017 WL 2621317, slip. op. at 29 (June 19,
14
2017) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2002)). If this standard
violator of the law. See id. (If so, then the defendant officer must have
been either incompetent or else a knowing violator of the law, and thus not
For these reasons, the district courts earlier ruling does not preclude
qualified immunity. See Lowe v. Raemisch, No. 16-1300, slip op. at Part
V. Disposition
We conclude that the warden and director did not violate a clearly
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