Thurmond v. Andrews

972 F.3d 1007

Sam Edward THURMOND, Sr., Plaintiff - Appellee

James Cunningham, Plaintiff

Rashan Dixon; Khalan Ellington; Bobby Ray Wyles, Jr.; Terry Don Beaver; Jeremy Todd Haley, Plaintiffs - Appellees

v.Gary ANDREWS, Lieutenant, Faulkner County Detention Facility; Chris Riedmueller, Captain, Faulkner County Detention Facility (originally named as C Reedmiller), Defendants - Appellants

Tim Ryals, Sheriff, Faulkner County Detention Facility, Defendant

Faulkner County, Defendant - Appellant

No. 19-1557

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2020

Filed: August 28, 2020

Matthew L. Brunson, Sainabou M. Sonko, Mitchell & Williams, Little Rock, AR, for Plaintiffs-Appellees.

Sam Edward Thurmond, Sr., Drew County Detention Facility, Monticello, AR, Pro. Se.

Kaylen Suzanne Lewis, Jason E. Owens, Jason Owens Law Firm, Conway, AR, for Defendants-Appellants.

Before LOKEN and GRASZ, Circuit Judges, and PITLYK¹ , District Judge.

GRASZ, Circuit Judge.

Six former inmates of the Faulkner County Detention Center sued Faulkner County, Arkansas, and two of the jail's employees under 42 U.S.C. § 1983. They claim their conditions of confinement were unconstitutional because of mold in and around the jail's shower. Both the employees and the County moved for summary judgment. The district court found a broad right to sanitary prison conditions to be clearly established, denied qualified immunity to the employees, and denied the County's summary judgment motion. Both the jail employees and the County now appeal. The jail employees argue they are entitled to summary judgment based on qualified immunity because the right at issue was not clearly established. And the County argues its motion for summary judgment was appropriate because no constitutional violation occurred. We reverse the denial of summary judgment as to the employees concluding they were entitled to qualified immunity, and find that we lack jurisdiction to reach the County's appeal.

I. Background

Six former inmates at the Faulkner County Detention Center (the "jail") allege they were confined in unconstitutional living conditions during various periods between 2016 and 2018. Specifically, the inmates claim a "black mold" was present on the walls, ceilings, floors, and shower curtains of the showers that serviced a portion of the jail. In addition to allegations of mold, the plaintiffs also testified they were never given any cleaning supplies beyond a mop, brush, and bucket — never any cleaning chemicals.

It is disputed as to when the jail became aware of mold complaints. But the first written complaint in the record indicates that by February 2017, inmates were submitting written complaints alleging the presence of "black mold." And at some point after these written complaints, the jail began utilizing the labor from Act 309² inmates to powerwash the showers and apply a paint primer or sealer on the walls designed to block heavy stains and odors.

Lieutenant Gary Andrews testified that cleaning and inspections of the jail are a part of his job. He also explained that when he inspected the showers and observed some discoloration, he tried to use the primer/sealer to remedy the issue. According to Andrews, the Act 309 inmates power-washed twice a week and scrubbed the showers daily with a brush and cleaning materials. Jail Administrator Captain Chris Riedmueller oversaw the overall operations of the jail and talked with Andrews about the possible source of the unsightly stains in the shower.

In June 2017, the jail hired ATOKA, Inc., a professional engineering and environmental consulting company. ATOKA conducted a mold and indoor air quality assessment. The ATOKA report found no aerial mold problem, but did find that four of eleven surfaces tested contained a mold called Cladosporium — "a common indoor contaminant and the most common genera, worldwide. It is implicated as an allergen ...." The report concluded that the mold growth was confined to the areas that remain wet and that there was "no widespread, buildingrelated mold problem." The report also contained a list of suggestions including sanitizing the showers with Perasan A and Perafoam (a two-product cleaning regimen of strong, chemical cleaning materials), limiting showering to specific time periods, and drying off surfaces after use.

When asked, Riedmueller admitted the jail did not implement the ATOKA report recommendations nor did it change its cleaning method. Andrews testified he had never read the report, but was briefed on the results.

Additionally, in preparation for the lawsuit, the inmates retained Dr. Jim Ingram, who is board certified in Pediatrics and Allergy and Immunology. Dr. Ingram tested each of the plaintiffs and found that only one was allergic to Cladosporium. He also testified that a person must be allergic to a mold before that mold would cause a person to be sick. But if a person was allergic to Cladosporium and was exposed to it, Dr. Ingram explained, he or she could suffer "deleterious health effects."

Both the individual jail employees and Faulkner County moved for summary judgment — the individuals asserting qualified immunity and the County asserting it had no policy or custom of constitutional violations. Defining the constitutional right at issue broadly, the district court found the inmates’ right to sanitary prison conditions was clearly established, and also found there were genuine disputes of material fact as to whether Andrews and Riedmueller had violated those rights by acting with deliberate indifference or reckless disregard. Therefore, the district court found qualified immunity was improper, and denied summary judgment to Andrews, Riedmueller, and Faulkner County. Andrews and Riedmueller now appeal, arguing they are entitled to qualified immunity because the conduct at issue does not violate a clearly established constitutional right. Likewise, the County now appeals, arguing it was also entitled to summary judgment because no constitutional violation occurred.

II. Analysis

We review a district court's denial of summary judgment based on qualified immunity de novo, reviewing the record in the light most favorable to the nonmoving parties and making all reasonable inferences in their favor. Robinson v. Hawkins , 937 F.3d 1128, 1135 (8th Cir. 2019).

In undertaking this interlocutory review for an order denying qualified immunity, our jurisdiction is limited. Raines v. Counseling Assocs., Inc. , 883 F.3d 1071, 1074 (8th Cir. 2018). "[W]e have authority to decide the purely legal issue of whether the facts alleged by the plaintiff are a violation of clearly established law." Id. (alteration in original) (quoting Franklin ex rel. Franklin v. Peterson , 878 F.3d 631, 635 (8th Cir. 2017) ). "Appellate review in these circumstances is therefore limited to ‘determin[ing] whether all of the conduct that the district court "deemed sufficiently supported for purposes of summary judgment" violated the plaintiff's clearly established federal rights.’ " Shannon v. Koehler , 616 F.3d 855, 861 (8th Cir. 2010) (alteration in original) (quoting Lockridge v. Bd. of Trs. of Univ. of Ark. , 315 F.3d 1005, 1008 (8th Cir. 2003) (en banc)).

A. Individual Defendants

"Qualified immunity shields public officials from liability for civil damages if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Dillard v. O'Kelley , 961 F.3d 1048, 1052 (8th Cir. 2020) (en banc) (internal quotation marks omitted). We must therefore determine "(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant[s’] alleged misconduct." Brown v. City of Golden Valley , 574 F.3d 491, 496 (8th Cir. 2009). We are permitted to decide which of these two prongs of qualified immunity to analyze first. Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Given both our limited jurisdiction and the presence of factual disputes in this case, we will begin and end our inquiry with the clearly established prong.

"A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Mullenix v. Luna , ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (internal quotation omitted). We do not "define clearly established law at a high level of generality." Dillard , 961 F.3d at 1052 (quoting Kisela v. Hughes , ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) ). "Rather, we look for a controlling case or a robust consensus of cases of persuasive authority. There need not be a prior case directly on point, but ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ " Id. (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ).

While prisoners certainly have an Eighth Amendment right to sanitary prison conditions including "reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time," the articulation of this broad right does not answer whether the presence of non-toxic environmental allergens are necessarily violative of this right. Howard v. Adkison , 887 F.2d 134, 137 (8th Cir. 1989). A more specific and particularized inquiry is necessary in order to assess clearly established law in the context of an assertion of qualified immunity. Hamner v. Burls , 937 F.3d 1171, 1179 (8th Cir. 2019).

The only thing clearly established in this case is that the definition of the asserted constitutional right embraced by the district court — a right to sanitary prison conditions — was impermissibly broad. See Anderson v. Creighton , 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (noting that "if the test of ‘clearly established law’ were to be applied at this level...