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Grissom v. Roberts

United States Court of Appeals, Tenth Circuit

August 29, 2018

RICHARD GRISSOM, Plaintiff - Appellant
v.
RAYMOND ROBERTS, Secretary of Corrections, in his individual and official capacity; JOHNNIE GODDARD, Deputy Secretary for Facilities Management, in his individual and official capacity; JAMES HEIMGARTNER, Warden, El Dorado Correctional Facility, in his individual and official capacity; GARY WILSON, Classification Administrator, El Dorado Correctional Facility, in his individual and official capacity; SUSAN GIBREAL, Deputy Warden, El Dorado Correctional Facility, in her individual and official capacity; PAUL SNYDER, Deputy Warden, El Dorado Correctional Facility, in his individual and official capacity; FRED EARLY, Deputy Warden, El Dorado Correctional Facility, in his individual and official capacity; DALE CALL, Compliance Officer, El Dorado Correctional Facility, in his individual and official capacity; MARY WILSON, Deputy Warden, El Dorado Correctional Facility, in her individual and official capacity; DEANE DONLEY, Classification Administrator, El Dorado Correctional Facility, in his individual and official capacity; MARIA BOS, Compliance Officer, El Dorado Correctional Facility, in her individual and official capacity; TIMOTHY RANDA, Segregation Lieutenant, El Dorado Correctional Facility, in his individual and official capacity; CONNIE ZABEL, Clinical Staff, El Dorado Correctional Facility, in her individual and official capacity; ROLAND BUCHANAN, Segregation Lieutenant, El Dorado Correctional Facility, in his individual and official capacity; MATTHEW MOORE, Correctional Counselor II, El Dorado Correctional Facility, in his individual and official capacity; KATHERINE CLOUSER, Clinical Staff, El Dorado Correctional Facility, in her individual and official capacity; BRANDON WALMSLEY, Unit Team Manager, El Dorado Correctional Facility, in his individual and official capacity; BILLIE GREY, Corrections Counselor I, El Dorado Correctional Facility, in her individual and official capacity; ALLISON AUSTIN, Corrections Counselor II, El Dorado Correctional Facility, in her individual and official capacity; CHARLES MILLER, Corrections Counselor II, El Dorado Correctional Facility, in his individual and official capacity; TAMMY MARTIN, Unit Team Manager, El Dorado Correctional Facility, in her individual and official capacity, Defendants - Appellees. STUART GRASSIAN, M.D.; TERRY A. KUPERS, M.D., M.S.P.; PABLO STEWART, M.D., Amici Curiae.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 5:15-CV-03221-JTM-DJW)

          Susan M. Razzano, Eimer Stahl LLP, Chicago, Illinois (Brian Y. Chang, Eimer Stahl, LLP, Chicago, Illinois, Daniel M. Greenfield, Northwestern Pritzker School of Law, Bluhm Legal Clinic, Roderick and Solange MacArthur Justice Center, Chicago, Illinois, with her on the briefs), for Plaintiff-Appellant.

          Dwight R. Carswell, Assistant Solicitor General, Topeka, Kansas (Toby Crouse, Solicitor General of Kansas, Bryan C. Clark, Assistant Solicitor General, Rachael D. Longhofer, Assistant Attorney General, Roger W. Slead, and Jeffrey T. Donoho, Horn, Aylward & Bandy, LLC, Kansas City, Missouri, with him on the brief), for Defendants-Appellees.

          Brook R. Long, Winston & Strawn, LLP, Chicago, Illinois, and Claire A. Fundakowski, Winston & Strawn, LLP, Washington, D.C. filed an Amici Curiae brief in support of Plaintiff-Appellant.

          Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

          HARRIS L HARTZ, CIRCUIT JUDGE

         Richard Grissom, a prisoner in the custody of the Kansas Department of Corrections, brought suit under 42 U.S.C. § 1983 against a number of state corrections and prison officials (collectively the Prison Officials), alleging violations of his constitutional rights stemming from his lengthy placement in solitary confinement. The district court granted summary judgment against Grissom, and he appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Prison Officials are entitled to qualified immunity because at the time of Grissom's confinement there was no clearly established law that would have alerted them that his asserted constitutional rights were being violated.

         I. BACKGROUND

         After being convicted in 1989 of a number of crimes, including the murders of three women and aggravated kidnapping, Grissom began serving four consecutive life sentences. He spent six years in general population until he was placed in solitary confinement in 1996 based on allegations that he was trafficking drugs. (Grissom uses the term solitary confinement. The Prison Officials speak of administrative segregation, a less emotive term. For convenience, we will generally use Grissom's nomenclature.) Grissom remained in solitary at several Kansas prisons-Lansing Correctional Facility (LCF), El Dorado Correctional Facility (EDCF), and Hutchinson Correctional Facility (HCF)-for nearly 20 years before being returned to general population in 2016.

         This is Grissom's second lawsuit challenging his solitary confinement. In his first lawsuit the district court granted summary judgment against him, holding that there had been no constitutional violation. See Grissom v. Werholtz, No. 07-3302-SAC, 2012 WL 3732895 (D. Kan. August 28, 2012) (Grissom I). We affirmed. See Grissom v. Werholtz, 524 Fed.Appx. 467 (10th Cir. 2013) (Grissom II).

         In September 2015 Grissom filed his pro se complaint in this case, asserting that his two decades in solitary violated his Fourteenth Amendment rights to due process and equal protection. He later filed an amended complaint expanding on his allegations and adding an Eighth Amendment claim, and then he filed a supplemental complaint adding new defendants who allegedly retaliated against him. The district court considered both his amended and supplemental complaints and again granted summary judgment against him. See Grissom v. Roberts, No. 15-3221-JTM, 2017 WL 3130591, at *7 (D. Kan. July 24, 2017) (Grissom III). For our purposes the amended complaint is the relevant pleading, as Grissom does not raise on appeal any of the additional claims from his supplemental complaint.

         II. STANDARD OF REVIEW AND QUALIFIED IMMUNITY

         “We review summary judgments de novo, applying the same standards that the district court should apply.” United States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017). “When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied.” Id. (internal quotation marks omitted).

         Individual defendants sued for damages under § 1983 may raise a defense of qualified immunity. “Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (internal quotation marks omitted). This standard arises from balancing two important but contrary interests. On the one hand, “an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). On the other hand, exposing public officials to liability for damages presents its own “social costs[, ] includ[ing] the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” Id. And, perhaps most significantly, “there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties.” Id. (brackets and internal quotation marks omitted).

         “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Kisela, 138 S.Ct. at 1152 (internal quotation marks omitted). Thus, when a defendant has raised qualified immunity as a defense, the plaintiff must establish (1) that the defendant's action violated a federal constitutional or statutory right; and (2) that the right violated was clearly established at the time of the defendant's actions. See Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009). Under this test, “immunity protects all but the plainly incompetent or those who knowingly violate the law.” Kisela, 138 S.Ct. at 1152 (internal quotation marks omitted).

         The test imposes a “heavy two-part burden.” Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007) (internal quotation marks omitted). If the plaintiff fails to satisfy either part of the two-part inquiry, a court must grant the defendant qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). The court has discretion to decide which of the two prongs of the qualified- immunity analysis to address first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment . . . .” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (internal quotation marks omitted).

         This court has stated that “[o]rdinarily, 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 law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (internal quotation marks omitted). When we say “on point, ” we do not mean that the precedent has merely stated a general proposition of applicable law. The Supreme Court has repeatedly advised the lower courts “not to define clearly established law at a high level of generality.” Kisela, 138 S.Ct. at 1152. Although Supreme Court precedent “does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (emphasis added) (internal quotation marks omitted).

         The role of an unpublished nonprecedential opinion in this enterprise depends on whether the opinion is being used to show that the plaintiff's proffered proposition is clearly established law or to show that the proposition is unsettled. We have held that “[a]n unpublished opinion . . . provides little support for the notion that the law is clearly established on [a] point.” Mecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007). But an unpublished opinion can be quite relevant in showing that the law was not clearly established. If we make the collegial, and quite legitimate, assumption that panels of this court render reasonable decisions, we would be hard pressed to say that a proposition of law was clearly established at a time when an unpublished opinion by a panel of this court said the opposite. To do so we would have to say that the panel's decision was contrary to clearly established law at the time it was rendered. Our assumption does not require us to credit the unpublished opinion as being correct, only as being debatably correct.

         And there is perhaps a more important reason to presume that an unpublished decision was not contrary to clearly established law at the time. The purpose of the qualified-immunity test is to limit liability to those public officials who are “plainly incompetent or . . . knowingly violate the law.” Kisela, 138 S.Ct. at 1152 (internal quotation marks omitted). This purpose would be ill served if liability were imposed on an official for conduct that had been held to be lawful, even in an unpublished opinion, by the federal appellate court with jurisdiction over the conduct, at least in the absence of later contrary authority issued before the official acted. Could we properly say that an official was plainly incompetent for taking guidance from an unpublished appellate opinion? See Apodaca v. Raemisch, 864 F.3d 1071, 1078 (10th Cir. 2017) (relying in part on an unpublished opinion to hold that law was not clearly established); Fields v. City of Phila., 862 F.3d 353, 361 (3d Cir. 2017) (prior unpublished decision indicates that law was not clearly established at the time it was issued). The argument favoring consideration of an unpublished opinion is particularly compelling if the same alleged victim and same defendant conduct are involved. See Prison Legal News v. Cook, 238 F.3d 1145, 1152 & n.8 (9th Cir. 2001) (determination that law was not clearly established in plaintiff's favor is supported by two unpublished district-court opinions that had upheld the same regulation of the state department of corrections, which had notice of the two opinions); Brown v. Wilson Cty., No. 00-50893, 2001 WL 650397 at *2 (5th Cir. May 28, 2001) (unpublished) (per curiam) (“Although the opinion in the prior appeal [in the same case] is nonprecedential, its analysis of the issue whether the seizure of the Browns' animals presents a violation of a clearly established constitutional right applies with equal force to the instant case.”).

         We now address Grissom's three constitutional claims.

         III. FOURTEENTH AMENDMENT DUE PROCESS

         The Fourteenth Amendment to the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” To establish a due-process violation, a prison inmate challenging the conditions of his confinement must show that the defendants deprived him of a constitutionally protected liberty interest. See Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). Conditions of confinement do not implicate a liberty interest unless they “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

         On appeal the parties agree that to determine whether Grissom's solitary confinement violated a liberty interest under the Fourteenth Amendment, we should apply the four-factor test of Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007), for determining whether segregated confinement imposes an atypical and significant hardship: “whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement . . .; and (4) the placement is indeterminate.”

         Grissom contends that three of the four factors support his claim. He correctly concedes that he certainly loses on the third factor; he is not eligible for parole until 2093, so his segregation will not affect the overall length of his confinement. As to the first factor, he claims that “the prison's stated penological interests for keeping him in segregation were stale and also excessive in relation to their purpose.” Aplt. Br. At 20. He points to documents in which the Prison Officials repeatedly justified his solitary confinement on the basis of “placement fact[s], ” but the only such fact described in the documents was his 1996 drug activity. Id. And he asserts that he had fewer disciplinary incidents than other inmates who were returned to general population much sooner.

         Regarding the second DiMarco factor, Grissom complains that he was subjected to heightened restrictions and fewer privileges than comparable prisoners and that his confinement was “injurious.” Id. at 23. Some of the adverse conditions he described are the following: The solitary cells are “eight-by-fourteen feet[, ] contain a solid concrete bed with a two-inch mattress[, and] are designed to maximize sensory deprivation-they have solid metal doors trimmed with rubber seals such that, when the cell door is closed, no sound can enter or exit the cell.” Aplt. Br. at 6. He was able to use library materials only if he made a written request; his cell was always more or less lighted, even at night; he spent 23 to 24 hours a day in his cell and ate all his meals alone; and visitation was restricted to one hour by video on Saturdays and Sundays.[1]Grissom asserts that he has “suffered significant psychological and physiological injury” because of these conditions:

He has become emotionally detached, non-emotive, and bitter. He suffers from insomnia, exhaustion, paranoia, and depression. The one meaningful relationship Grissom did have while in prison-his marriage-eventually collapsed because of his psychological changes. Human contact now causes Grissom discomfort.

Id. at 8-9 (citations to record omitted).[2]

         With respect to the fourth DiMarco factor, Grissom argues that his confinement was indefinite because there was no fixed ...


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