Meadows v. Knight

Filing 57

ORDER rejecting 42 Report and Recommendations and denying 25 Motion for Summary Judgment by Judge Philip A. Brimmer on 7/30/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00015-PAB-BNB
KENNITH MEADOWS,
Plaintiff,
v.
LIEUTENANT JUDY KNIGHT,
Defendant.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge Boyd N. Boland (the “Recommendation”) [Docket No. 42], which
recommends that the Court grant the motion for summary judgment filed by defendant
Judy Knight [Docket No. 25]. On July 6, 2012, plaintiff Kennith Meadows filed timely
objections [Docket No. 45] to the Recommendation.1 The Court therefore will
“determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3).2
The Recommendation concluded that the evidence in the record raised a triable
issue of fact about whether defendant’s actions violated plaintiff’s Eighth Amendment
rights. Docket No. 42 at 9. The Recommendation, however, determined that defendant
was entitled to qualified immunity because the law was not clearly established at the
1

2

Defendant did not object to the Recommendation.

Because the Recommendation contains a detailed summary of the facts, the
Court will not recite them here.

time of plaintiff’s accident that a reasonable prison official would have known that an
injury suffered by a prisoner cleaning defective prison equipment could raise an Eighth
Amendment violation. Id. at 12-13.
Plaintiff objects to the Recommendation’s conclusion that the law was not clearly
established as of April 20, 2010. Docket No. 45 at 3. He argues that the Tenth Circuit’s
decisions in Blay v. Reilly, 241 F. App’x 520 (10th Cir. 2007), and Smith v. United
States, 561 F.3d 1090 (10th Cir. 2009), clearly establish that a prisoner’s Eighth
Amendment rights may be violated if the prisoner is injured because of unsafe working
conditions.3 Docket No 45 at 8.
The doctrine of qualified immunity “shields government officials performing
discretionary functions from liability for damages ‘insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To avoid judgment for defendant
based on qualified immunity, plaintiff must show that (1) defendant’s actions violated a
specific statutory or constitutional right, and (2) the constitutional or statutory right

3

Plaintiff cites these cases for the first time in his objections. As noted in the
Recommendation, plaintiff relied solely on out-of-circuit cases in front of the magistrate
judge. Given that plaintiff has the burden to show that the constitutional right he claims
was violated was “clearly established,” his citation of Smith and Blay may constitute
new arguments, as opposed to additional support for previously made arguments,
which this Court should not properly consider on review. Compare United States v.
McCoy, 407 F. App’x 514, 516 (2d Cir. 2010) (finding that the government did not
present a new argument when it cited additional cases in its objection to a magistrate
judge’s recommendation, but rather supplied further support for an earlier presented
contention). However, since defendant does not raise this argument, the Court will
consider Smith and Blay.
2

defendant allegedly violated was clearly established at the time of the conduct at issue.
Pearson v. Callahan, 555 U.S. 223, 231 (2009); Steffey v. Orman, 461 F.3d 1218, 1221
(10th Cir. 2006). Plaintiff must satisfy both prongs of this two-part test in order to
survive defendant’s qualified immunity defense. Pearson, 555 U.S. at 236.
The Recommendation determined that plaintiff presented sufficient facts to
satisfy the first prong of the qualified immunity test. Docket No. 42 at 9. Defendant has
not appealed this aspect of the Recommendation and the Court is otherwise satisfied
that there is “no clear error on the face of the record.” Fed. R. Civ. p. 72(b), Adv.
Comm. Notes.
As to the second prong, a constitutional right is clearly established when, at the
time of the alleged violation, the contours of the right were so clear that a reasonable
official would understand that his actions violated that right. Walker v. City of Orem,
451 F.3d 1139, 1151 (10th Cir. 2006). The question of whether a right is clearly
established must be answered “in light of the specific context of the case, not as a
broad general proposition.” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012)
(citation omitted). In order for the law to be clearly established, “there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight of
authority from other courts must have found the [right] to be as the plaintiff maintains.”
Klen v. City of Loveland, Colo., 661 F.3d 498, 511 (10th Cir. 2011). It is not necessary,
however, to find cases that are “fundamentally similar” or even “materially similar,”
because “officials can still be on notice that their conduct violates established law even
in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

3

Consequently, the salient question is “whether the state of the law [at the time of the
action] gave [defendant] fair warning that [her conduct] was unconstitutional.” Id.; see
also Saucier v. Katz, 533 U.S. 194, 202 (2001), abrogated in part by Pearson v.
Callahan, 555 U.S. 223 (2009) (“[t]he relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”).
Plaintiff argues that Smith “clearly established in the Tenth Circuit that unsafe
working conditions can rise to the level of an Eighth Amendment violation.”4 Docket No.
45 at 5. In Smith, the plaintiff alleged that on two separate occasions he was required
to work on light fixtures in a closet at the United States Penitentiary at Leavenworth
(“Leavenworth”) while another prisoner pulled insulation containing asbestos from pipes
in the closet, releasing white dust into the air and thereby exposing him to asbestos.
561 F.3d at 1094. Plaintiff claimed that prison officials knew that the closet contained
asbestos due to a survey that had been conducted of the prison and of the closet in
particular. Id. The Tenth Circuit found that these allegations were sufficient for plaintiff
to survive a motion to dismiss his Eighth Amendment deliberate indifference claim
against the warden, the safety department manager, the person who provided access
to the closet, and the plaintiff’s work supervisor. Id. at 1104.
Defendant tries to distinguish Smith on the grounds that the risk of harm “was far
more obvious and egregious than the risk alleged in this case.” Docket No. 46 at 5.
4

In regard to Blay, an unpublished decision, the Court notes that plaintiff cannot
rely on an unpublished decision to prove that a law is clearly established. Green v.
Post, 574 F.3d 1294, 1306 n.10 (10th Cir. 2009); Duran-Hernandez v. Ashcroft, 348
F.3d 1158, 1162 n.3 (10th Cir. 2003).
4

The Court disagrees. While the dangers of asbestos exposure are well-known, a oneor two-time exposure to asbestos dust, which could potentially cause disease in the
future, is not as obvious or egregious as the danger of a heavy metal lid falling on a
prisoner’s head, thereby causing immediate and likely serious injury. Moreover, while
the procedural posture of Smith and this case are different,5 Smith clearly held that a
variety of prison officials, from the warden to the plaintiff’s immediate supervisor, could
be liable under the Eighth Amendment for one or two discrete exposures to a
hazardous substance during the course of a prison work assignment. The Court finds
that a reasonable official would understand that Smith, which was published over a year
before plaintiff’s injury, established that allowing prisoners to clean kettles without
adequate means to prevent the 30 pound lids from falling on them was unconstitutional.
The magistrate judge has already held that a factfinder could conclude that the risk of
this practice was so obvious that defendant was aware of and disregarded it. Docket
No. 42 at 9. As a result, defendant is not entitled to summary judgment on her claim of
qualified immunity.
Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 42] is REJECTED. It is further
ORDERED that defendant’s Motion for Summary Judgment [Docket No. 25] is
DENIED.

5

Defendant does not argue that the procedural posture of Smith, namely review
of a dismissal pursuant to Fed. R. Civ. P. 12(b)(6), is material to the issue of whether it
provided clearly established precedent.
5

DATED July 30, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

6