October 20, 2018

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.

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