FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 23, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court LARRY ALLEN THOMPSON,
Plaintiff - Appellant,
v. No. 18-1257 (D.C. No. 1:18-CV-00588-LTB) JASON LENGERICH, Warden, Buena (D. Colo.) Vista Corr. Fac.; JENNIFER HANSEN, BVCF Security Svc. Captain; WILLIAM CATTELL, BVCF East Unit Supervisor,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, MORITZ, and EID, Circuit Judges. _________________________________
Larry Allen Thompson, a Colorado inmate proceeding pro se, appeals from the
district court’s determination on initial screening that his 42 U.S.C. § 1983
conditions-of-confinement claims are legally frivolous. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm in part and reverse in part, and we remand for further
proceedings.
* 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 ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. BACKGROUND
Thompson is incarcerated in Colorado Department of Corrections’ (CDOC)
Buena Vista Correctional Facility (BVCF). His complaint arises from two conditions
of his confinement at BVCF, which he states is one of Colorado’s oldest prisons.
First, BVCF’s lower East Unit has communal showers with no walls or privacy
partitions. As a result of childhood abuse, Thompson has been diagnosed with
Post-Traumatic Stress Syndrome/Disorder (PTSS/D) and cannot shower with other
male inmates, many of whom are sex offenders. CDOC’s Administrative Regulation
(A.R.) #100-40, passed to implement the Prison Rape Elimination Act, 34 U.S.C.
§§ 30301-30309, and its accompanying regulations, see 28 C.F.R. Pt. 115, requires
prisons to allow inmates who self-identify as transgender or intersex the opportunity
to shower separately from other offenders. The federal regulations and A.R. #100-40
do not provide for private showers for other inmates such as Thompson who have
special needs.
On September 16 or 17, 2017, Thompson was notified that he was being
moved to the lower East Unit. He spoke with defendant William Cattell, the East
Unit Supervisor, about his PTSS/D and his concerns about the communal showers.
Cattell participated in Thompson’s transfer and denied his grievance regarding the
communal showers, stating that he could have a private shower if he identified as
transgender or intersex.
Thompson moved to the lower East Unit on September 19. That day, he
declared a “Mental Health Emergency.” Defendant Jennifer Hansen, a
2 Custody/Control Manager, confronted Thompson “about what is, and/or is not
considered by the administration to be a mental health emergency or issue.” R. at 58.
She “informed [Thompson] in no uncertain terms that [his] ‘safety concerns’ were
‘irrelevant,’ and the fact that [he] ‘. . . doesn’t want to shower with other men is not
my (her) problem!’” Id.
Thompson elected not to shower communally, and staff did not force him to
shower, so he did not shower for approximately 25 days.1 During this time,
defendant Jason Lengerich, BVCF’s warden, communicated with Thompson’s wife,
stating that Thompson would not be granted a private shower because he did not
self-report as being transgender or intersex. The standoff ended when Travis Trani,
CDOC’s Director of Prison Operations, directed Lengerich to allow Thompson to
shower privately. Thompson claims that the BVCF shower conditions and policies
violate his rights under the Fourth, Eighth, and Fourteenth Amendments.
Second, Thompson alleges BVCF is overcrowded and understaffed. He asserts
that the cells were intended for single occupancy but are double-bunked. And he
alleges the cells are insufficient for even a single occupant. Specifically, he states
that although the American Correctional Association (ACA) recommends 25 square
feet of unencumbered square feet per occupant, his cell has only 21.5 total square feet
of unencumbered space, shared by two men for 18 to 24 hours per day. Also,
1 Thompson states that he did not shower for 19 days, but the amended complaint alleges that he moved to the lower East Unit on September 19 and finally was allowed to shower privately on October 14, which is a period of 25 days. 3 inmates are subject to multi-day lockdowns, including an 11-day lockdown in March
2018 when inmates were ill with the flu and no cleaning supplies were provided.
Further, he states that understaffing cuts two ways: inmates are kept in their cells
more, but when they are out of their cells, they are in greater danger from each other.
Thompson claims that these conditions violate his rights under the Eighth and
Fourteenth Amendments.
Thompson sued Lengerich, Hansen, and Cattell in both their official and their
individual capacities. The magistrate judge identified several deficiencies in
Thompson’s original complaint and directed him to file an amended complaint.
Upon screening Thompson’s amended complaint under 28 U.S.C. § 1915A and
D.C.Colo.L.CivR. 8.1(b)(3), the district court dismissed all of his claims as legally
frivolous. Thompson appeals.
DISCUSSION
Our review is de novo because the district court based its frivolousness
determination on questions of law. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.
2006). “[A] complaint . . . is frivolous where it lacks an arguable basis either in law
or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolous claims include
those “based on an indisputably meritless legal theory” or “describing fantastic or
delusional scenarios.” Id. at 327-28. But “frivolousness . . . refers to a more limited
set of claims than does [Fed. R. Civ. P.] 12(b)(6)[.]” Id. at 329. Accordingly, a
complaint may fail to state a claim upon which relief may be granted, yet not
necessarily be frivolous. See id. at 331. “A pro se litigant’s pleadings are to be
4 construed liberally and held to a less stringent standard than formal pleadings drafted
by lawyers.” Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. Fourth Amendment Claim
Thompson claims that requiring him to use communal showers violates his
Fourth Amendment rights to bodily privacy and security. The Fourth Amendment,
however, protects against unreasonable searches and seizures. While many of our
cases regarding prisoners’ bodily privacy arise from strip searches, see, e.g., Farmer
v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002); Hayes v. Marriott, 70 F.3d 1144,
1146-47 (10th Cir. 1995), thus implicating the Fourth Amendment, Thompson’s case
involves neither a search nor a seizure. Accordingly, his allegations more properly
invite analysis under other constitutional provisions: personal security under the
Eighth Amendment, see Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980)
(recognizing under the Eighth Amendment that “an inmate does have a right to be
reasonably protected from constant threats of violence and sexual assaults from other
inmates”), and bodily privacy under the Fourteenth Amendment, see Cumbey v.
Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (per curiam) (citing, in non-search
prison context, Fourteenth Amendment precedent regarding inmate bodily privacy).
Accordingly, we affirm the dismissal of the Fourth Amendment claim and instead
consider the allegations under the Eighth and Fourteenth Amendments.
II. Eighth Amendment Claims
Thompson seeks to pursue Eighth Amendment claims based on both the
shower conditions and BVCF’s being overcrowded and understaffed.
5 “The Eighth Amendment’s prohibition of cruel and unusual punishment
imposes a duty on prison officials to provide humane conditions of confinement,
including adequate food, clothing, shelter, sanitation, medical care, and reasonable
safety from serious bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.
2008). “Although prison officials have broad administrative and discretionary
authority to manage and control prisons, they must provide humane conditions of
confinement guided by contemporary standards of decency.” Penrod v. Zavaras,
94 F.3d 1399, 1405 (10th Cir. 1996) (citation and internal quotation marks omitted).
There are two elements to an Eighth Amendment conditions-of-confinement
claim. “First, the alleged injury or deprivation must be sufficiently serious. The
official’s act or omission must result in the denial of ‘the minimal civilized measure
of life’s necessities.’” Tafoya, 516 F.3d at 916 (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)). “Second, . . . the prison official must have a sufficiently
culpable state of mind to violate the constitutional standard. The standard of
culpability necessary to an Eighth Amendment violation is one of deliberate
indifference.” Id. “‘[A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety . . . .’”
Id. (quoting Farmer, 511 U.S. at 837).
A. Shower Conditions
Thompson asserts that requiring him to use communal showers violates his
rights to sanitary conditions, treatment for his diagnosed mental condition, and
6 personal safety. The district court held that the amended complaint had failed to
adequately allege both the objective and subjective elements of an Eighth
Amendment claim. It held that being deprived of a shower for a period of a few
weeks was not an extreme deprivation, and that Thompson had failed to allege that
the defendants acted with deliberate indifference to his health and safety, given that
they did not force him to take a communal shower.
The allegations are that the BVCF communal showers carry significant mental
concerns for Thompson, a survivor of childhood abuse who has been diagnosed with
PTSS/D and cannot shower with other men. It is a reasonable inference from the
allegations that by transferring Thompson to the lower East Unit, which has only
communal showers, and then by refusing to provide him the opportunity to shower
privately until they were ordered to do so, the defendants essentially presented
Thompson with a Hobson’s choice between hygiene/sanitation, on the one hand, and
personal safety and/or care for his diagnosed PTSS/D, on the other. Either way,
Thompson would be deprived of humane conditions of confinement. These
allegations are not legally frivolous.
Thompson further alleges, however, that after 25 days, he was allowed to
begin showering privately. Thus, by the time he commenced his suit, Thompson was
no longer being subjected to the Hobson’s choice of which he complains. In these
circumstances, Thompson has failed to allege sufficient facts to establish standing to
sue defendants in their official capacities.
7 “[T]he core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III” of the United States Constitution.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The requirement that
jurisdiction be established as a threshold matter springs from the nature and limits of
the judicial power of the United States and is inflexible and without exception.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (brackets and
internal quotation marks omitted). “[W]e raise the issue sua sponte because it
involves the court’s power to entertain the suit.” Jordan v. Sosa, 654 F.3d 1012,
1019 (10th Cir. 2011) (brackets and internal quotation marks omitted).
“Standing is determined as of the time the action is brought.” Id. (internal
quotation marks omitted). “To establish Article III standing, the plaintiff bears the
burden of demonstrating the following three elements: (1) an injury in fact; (2) a
causal connection between the injury and the challenged action; and (3) a likelihood
that a favorable decision will redress the injury.” Id. “This triad of injury in fact,
causation, and redressability constitutes the core of Article III’s case-or-controversy
requirement . . . .” Steel Co., 523 U.S. at 103-04 (footnote omitted). The relevant
elements here are injury in fact and redressability.
“The ‘injury in fact’ requirement differs depending on whether the plaintiff
seeks prospective or retrospective relief.” Colo. Cross-Disability Coal. v.
Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (internal quotation
marks omitted). With regard to defendants in their official capacities, Thompson
may seek only injunctive relief. See Brown v. Buhman, 822 F.3d 1151, 1162 n.10
8 (10th Cir. 2016). “When prospective relief—such as an injunction—is sought, the
plaintiff must be suffering a continuing injury or be under a real and immediate threat
of being injured in the future.” Colo. Cross-Disability Coal., 765 F.3d at 1211
(internal quotation marks omitted). But Thompson’s shower allegations fail to
demonstrate that he is suffering a continuing injury or is under a real and immediate
threat of being injured in the future. To the contrary, he has been allowed private
showers since October 2017, well before he filed this litigation. Thompson thus has
failed to establish sufficient injury in fact to seek prospective relief with regard to his
shower allegations.
A lack of a continuing violation also precludes showing redressability. To
satisfy this element, “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal
quotation marks omitted). In Steel Co., where the defendant’s conduct had ceased
before the filing of the complaint, the Supreme Court held:
If respondent had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested would remedy that alleged harm. But there is no such allegation here—and on the facts of the case, there seems no basis for it. Nothing supports the requested injunctive relief except respondent’s generalized interest in deterrence, which is insufficient for purposes of Article III.
523 U.S. at 108-09. “Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief if unaccompanied by any
continuing, present adverse effects.” Id. at 109 (ellipsis and internal quotation marks
omitted). In light of the rule stated in Steel Co., Thompson’s past exposure to
9 communal showers does not in itself show a present case or controversy regarding
injunctive relief.
This standing problem with regard to official-capacity claims, however, does
not preclude Thompson from proceeding with his individual-capacity claims.
See Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 185
(2000) (“[A] plaintiff must demonstrate standing separately for each form of relief
sought.”). Unlike the official-capacity claims, Thompson is not limited to injunctive
relief with regard to the individual-capacity claims. And while 42 U.S.C. § 1997e(e)
may foreclose an award of compensatory damages, he may still recover nominal and
punitive damages from defendants in their individual capacities. See Searles v.
Van Bebber, 251 F.3d 869, 879-81 (10th Cir. 2001).
The amended complaint alleges that the defendants had actual knowledge that
Thompson’s PTSS/D precluded him from taking communal showers and personally
participated in transferring Thompson to the lower East Unit and in denying his
requests for private showers. Moreover, a factfinder “is permitted to infer that a
prison official had actual knowledge of the constitutionally infirm condition based
solely on circumstantial evidence, such as the obviousness of the condition.” Tafoya,
516 F.3d at 916. The attachment to Thompson’s complaint, a statement under
penalty of perjury from another inmate, supports an inference that the BVCF
communal shower conditions are well-known to staff. In short, Thompson’s
allegations regarding the defendants’ personal knowledge and participation also are
10 sufficient to rise above the level of a legally frivolous Eighth Amendment claim, with
regard to his allegations against defendants in their individual capacities.
B. Overcrowding and Understaffing
Thompson further asserts Eighth Amendment violations from BVCF being
overcrowded and understaffed. The district court held this claim was frivolous
because an allegation that cell size fails to meet recommended standards does not
demonstrate a constitutional violation, and Thompson’s allegations of being
subjected to an 11-day lockdown in March 2018 due to a flu epidemic does not
amount to intolerable conditions.
We again respectfully disagree with the district court’s analysis. As the
district court noted, there is no per se Eighth Amendment prohibition on
double-celling. See Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981). But that does
not mean that an inmate cannot complain about overcrowding. Rhodes considered,
and ultimately rested on, the district court’s findings of fact regarding the plaintiffs’
particular circumstances. Id. at 347-48.
The conditions alleged in the amended complaint are worse than the conditions
Rhodes upheld as constitutional. Thompson’s cell allegedly is 54 square feet (with
only 21.5 square feet of unencumbered space), while the cells in Rhodes were 63
square feet, id. at 341. And Thompson alleges that the amount of unencumbered
space fails to comply with current recommended ACA standards even for one inmate,
let alone two. Even though the ACA standards do not themselves establish whether
conditions are constitutional, they may be relevant to determining the constitutional
11 claim. See Battle v. Anderson, 564 F.2d 388, 395, 401 (10th Cir. 1977) (upholding
district court’s adoption of American Public Health Association standards calling for
60 square feet per cell). Further, Thompson states that he generally is allowed out of
his cell for only 4 to 4.5 hours per day, whereas the Rhodes inmates had access to a
day room for 15 hours per day, see 452 U.S. at 341. Thompson also is subject to
multi-day lockdowns, which, combined with the small size of his cell, conceivably
could deprive him of the ability to exercise. See Wilson v. Seiter, 501 U.S. 294, 304
(1991) (“Some conditions of confinement may establish an Eighth Amendment
violation ‘in combination’ when each would not do so alone, but only when they
have a mutually enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth, or exercise[.]”); Hutto v. Finney,
437 U.S. 678, 686–87 (1978) (“A filthy, overcrowded cell and a diet of ‘grue’ might
be tolerable for a few days and intolerably cruel for weeks or months.”). In sum, the
allegations regarding overcrowding are not legally frivolous.
Further, the district court did not address Thompson’s allegations that the
prison is understaffed, increasing the danger to inmates. In addition to stating that he
is forced to spend more time in his inadequate cell space because of staffing levels,
Thompson claims that understaffing causes him to be less safe when he is among
other inmates. For example, he avers that staff responses to inmate fights have been
delayed, leaving inmates injured. This circuit has stated that “an inmate does have a
right to be reasonably protected from constant threats of violence and sexual assaults
from other inmates,” and that “[v]iolence and illegal activity between inmates at Old
12 Max is further facilitated by the inadequacy of the staffing levels.” Ramos, 639 F.2d
at 572, 573. Accordingly, Thompson’s allegations that understaffing contributes to a
violation of his Eighth Amendment rights are not legally frivolous.
For these reasons, we reverse the dismissal of this Eighth Amendment claim,
but only as to defendant Lengerich. It is reasonable at this stage of the litigation to
infer that as BVCF’s warden, he has actual knowledge of and participation in setting
and maintaining BVCF’s conditions. But Thompson has not alleged any facts to
show that defendants Hansen or Cattell have any involvement with or responsibility
for overcrowding or understaffing at BVCF. Accordingly, we affirm the dismissal of
this claim as against Hansen and Cattell.
III. Fourteenth Amendment Claims
As stated above, Thompson’s bodily privacy allegations invoke the Fourteenth
Amendment. In addition, Thompson explicitly alleges an equal protection violation
with regard to the shower policy and a due process violation from being transferred
to the lower East Unit.2
A. Bodily Privacy – Shower Conditions
An inmate’s interest in bodily privacy may be restricted “only to the extent
necessary to further the correction system’s legitimate goals and policies.” Cumbey,
684 F.2d at 714. In Cumbey, this court held that the district court erred in dismissing
2 Thompson’s opening brief does not challenge the dismissal of another equal protection claim predicated upon double-bunking prisoners in the lower East Unit while single-bunking prisoners elsewhere in BVCF. 13 as frivolous a prisoner’s claim that being viewed naked by female guards violated his
privacy. Id. Although in this case the district court stated it had found no cases
holding “that an inmate has a constitutional right to a private shower,” R. at 95, it is
not legally frivolous for Thompson to seek to extend precedent such as Cumbey to the
proposition that an inmate with PTSS/D from childhood abuse has an interest in
bodily privacy that would preclude being required to shower communally with other
inmates, including sex offenders.
As discussed above, however, because Thompson has been allowed to shower
privately since before he commenced this lawsuit, he lacks standing to proceed with
this claim against defendants in their official capacities. This claim may only
proceed against defendants in their individual capacities.
B. Equal Protection – Shower Policy
The Equal Protection Clause requires the government to treat similarly situated
people alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). “This provision creates no substantive rights,” but “[i]nstead, it embodies a
general rule that States must treat like cases alike but may treat unlike cases
accordingly.” Vacco v. Quill, 521 U.S. 793, 799 (1997). “[T]o establish an equal
protection violation, [Thompson] must allege facts that [the defendants] treated him
differently than other similarly situated prisoners.” Requena v. Roberts, 893 F.3d
1195, 1210 (10th Cir. 2018), cert. denied, 139 S. Ct. 800 (2019). “Individuals are
‘similarly situated’ only if they are alike in all relevant respects.” Id. (internal
quotation marks omitted). Inmates must also show that “the difference in treatment
14 was not reasonably related to legitimate penological interests.” Fogle, 435 F.3d at
1261 (internal quotation marks omitted).
Thompson argues that it is an equal protection violation for A.R. #100-40 to
guarantee private showers to transgender and intersex inmates but not to other
inmates with special needs such as his PTSS/D. The district court found this claim
frivolous on the ground that Thompson had not satisfied the “similarly situated”
element “because he is not transgender nor intersexual.” R. at 96. “Further, there is
a legitimate penological interest for allowing transgender and intersexual inmates to
shower privately. Therefore, [Thompson] has failed to demonstrate that he was
treated differently than others similarly situated as a result of intentional or
purposeful discrimination.” Id.
For purposes of surviving initial screening for frivolity, however, Thompson
adequately alleged that he is similarly situated to transgender and intersex inmates
with regard to the relevant respect – prisoners who, for legitimate reasons of personal
safety (either mental or physical), have a need for private showers. We also conclude
that it is not legally frivolous for Thompson to contend that there is no legitimate
penological interest in privileging some inmates with special needs for private
showers while rejecting the requests of other inmates with special needs. The claim
may fail upon further examination, but at this stage we are not satisfied that it is
legally frivolous. Nevertheless, as discussed above, because Thompson has been
allowed to shower privately since before he commenced this lawsuit, he lacks
15 standing to proceed with this claim against defendants in their official capacities.
This claim may only proceed against defendants in their individual capacities.
C. Due Process – Transfer to Lower East Unit
Finally, the amended complaint seeks to assert a due process claim arising
from Thompson’s placement on the lower East Unit. It states that Thompson “is
classified as a Minimum/Minimum Restrictive Level prisoner, yet, he is housed in
what is supposed to be a Medi[]um Custody level area of BVCF which is in fact
managed like a Close and/or Maximum Security level facility.” R. at 71. “Without
any [administrative] due process procedures, proceedings, and/or protections,
Plaintiff was arbitrarily re-classified and forced to be housed in a higher custody
level housing unit than his CDOC classification requires.” Id. at 73 (brackets in
original). The district court properly dismissed this claim as legally frivolous.
“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.” Grissom v. Roberts, 902 F.3d 1162, 1169
(10th Cir. 2018). The Constitution itself does not create the required liberty interest
for state inmates. See Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334,
1339 (10th Cir. 2007) (internal quotation marks omitted). Instead, “[a] protected
liberty interest only arises from a transfer to harsher conditions of confinement when
an inmate faces an atypical and significant hardship in relation to the ordinary
incidents of prison life.” Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012)
(ellipsis and quotation marks omitted). Thompson’s description of a transfer from a
16 general population living situation that provided various incentives to another general
population ward with harsher conditions does not satisfy this difficult standard. See
id. at 1014, 1015 (noting that the appropriate comparison is between “the nature of
the challenged conditions to the type of nonpunitive confinement routinely imposed
on inmates serving comparable sentences” and holding that the conditions in the
general population unit at ADX “are not extreme as a matter of law”).
CONCLUSION
Thompson’s second motion for appointment of counsel is denied. We reverse
the dismissal of the following claims and remand for further proceedings: (1) the
Eighth Amendment claim as to BVCF’s shower conditions and policy against
defendants in their individual capacities; (2) the Eighth Amendment claim as to
overcrowding and understaffing at BVCF against defendant Lengerich; (3) the
Fourteenth Amendment bodily privacy claim against defendants in their individual
capacities; and (4) the Fourteenth Amendment equal protection claim against
defendants in their individual capacities.3 We affirm the dismissal of all other
claims.
3 On September 23, 2019, Mr. Thompson filed in this court a notice of change of address. We leave it to the district court on remand to assess the implications, if any, of Mr. Thompson’s change of address. 17 We note that this decision rests on the narrow ground of legal frivolity, and
nothing herein should be read to limit the district court’s ability to decide the
remanded claims on any other ground that may arise or be asserted on remand.
Entered for the Court
Allison H. Eid Circuit Judge