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Brosh v. Duke

United States Court of Appeals, Tenth Circuit

July 17, 2015

JEFF BROSH; JOHN COON, Plaintiffs - Appellants,
v.
LINDA DUKE, in her individual capacity, Defendant-Appellee.

D.C. No. 1:12-CV-00337-RM-MJW, D. Colo.

Before BRISCOE, Chief Judge, McKAY and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT [*]

MARY BECK BRISCOE, CHIEF JUDGE

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.

Plaintiffs Jeff Brosh and John Coon, both former inmates at the Fremont Correctional Facility (FCF) in Canon City, Colorado, appeal from the district court's grant of summary judgment on their 42 U.S.C. § 1983 claims against defendant Linda Duke, an FCF guard who allegedly violated their Eighth Amendment rights by closing them inside of a walk-in refrigerator for a brief period of time. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's grant of summary judgment in favor of Duke.

I

We construe the summary judgment record in the light most favorable to Brosh and Coon as the non-moving parties. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). On February 12, 2010, Brosh and Coon, both inmates confined at FCF, were working a 3 p.m. to 7 p.m. shift in the kitchen under the supervision of Sergeant Rhonda Wheeler. Part of those duties included returning leftover milk to and removing food items (e.g., milk, butter, fruit) from a large, industrial refrigerator known as Cooler 4. Cooler 4 measures twenty-five feet by sixteen feet, has a front exit door equipped with a window, and is lit inside. The temperature inside of Cooler 4 is monitored regularly and, as of 5:41 p.m. on February 12, 2010, was approximately thirty-nine degrees.

Near the end of their shift that day, Brosh and Coon were directed by Sergeant Wheeler to "stand by [C]ooler 4 and wait for [her] while [she] went and checked the production worksheet to see what [food items] needed to [be] pull[ed] out of [C]ooler 4." Aplt. App. at 373. Before Sergeant Wheeler returned, Brosh and Coon entered Cooler 4 in order to return cartons of leftover milk. Inside Cooler 4, Brosh and Coon encountered defendant Duke and another inmate who was working under Duke's supervision. Shortly after Brosh and Coon entered Cooler 4, Duke left Cooler 4 with her inmate, padlocked the cooler door from the outside, and placed bread racks in front of the cooler door.

Brosh, after realizing what Duke had done, ran to the front of the cooler and began banging on and kicking the cooler door. Coon likewise began beating on the cooler door and screaming. Both Brosh and Coon tried unsuccessfully to open the cooler by "push[ing] on [a] large knob on the left-hand side of the door." Id. at 342, 361. Neither Brosh nor Coon reported observing the sticker on the inside of the cooler door that stated, "You are not locked in. Push handle to exit." Id. at 345. As a result, Brosh did not push on the small knob that was located directly to the left of, and that was referenced in, the sticker. Id. For his part, Coon reported pushing on both knobs, but was unaware that the cooler door could be opened from the inside. Id. at 363. It is undisputed that the emergency exit knob on the inside of the cooler door was designed to prevent anyone from being locked inside, even in the event that the exterior padlock was in place, as was the case here.

When Sergeant Wheeler returned to the front of Cooler 4, she "saw a face staring at [her] from within the cooler." Id. at 373. Sergeant Wheeler immediately opened the door to Cooler 4 and released Brosh and Coon. By Sergeant Wheeler's estimation, this occurred "approximately 10 to 12 minutes" after she had initially directed Brosh and Coon to stand outside of Cooler 4. Id. Brosh, who was not wearing a watch and did not have access to a clock, "guesstimate[d]" that he and Coon were inside of Cooler 4 "between 20 to 30 minutes." Id., Ex. 1 at 343. Coon, who likewise was not wearing a watch and did not have access to a clock, reported only that he was "told that it was over 20 minutes." Id. at 365. At the time of the incident, Brosh and Coon were wearing prison-issued "boots, socks, . . . pants, . . . t-shirt[s], underwear, " and "kitchen smock[s]." Id. at 343, 363.

Following the incident, Sergeant Wheeler notified her shift commander. In Sergeant Wheeler's view, Duke acted out of spite towards Wheeler.[1] Ultimately, the associate warden at FCF concluded that Duke's "actions constitute[d] willful misconduct, and violat[ed] agency rules that affect[ed] [her ability to perform [her] job effectively and directly affect[ed] the safety and security of the facility." Id. at 397. As a result, Duke was disciplined by the associate warden.

Neither Brosh nor Coon filed a grievance regarding the incident. Both Brosh and Coon have since been released from custody.

II

Plaintiffs, represented by counsel, filed this suit against Duke claiming that her actions violated their Eighth Amendment rights. More specifically, plaintiffs' complaint, in the ...


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