Tapanga Hardeman v. David Wathen
Opinion
Water is vital for both health and sanitation. Dehydration affects practically every life function, including temperature regulation, digestion, brain function, toxin elimination, and oxygen distribution. See Jon Johnson, "Effects of having no water," MEDICAL NEWS TODAY , https://www.medicalnewstoday.com/articles/325174.php (last visited July 19, 2019). After a few days, total deprivation of water can be fatal. Id. Basic sanitation is also essential.
The plaintiffs in this case, all pretrial detainees at the Lake County Adult Correctional Facility, allege that they were *819 forced to learn this lesson the hard way. For approximately three days in 2017, the jail officials shut off all water in their jail without any warning. With no running water, the plaintiffs had only limited water that the defendants provided for their personal and sanitation uses. As a result, they became ill and feces built up and festered in the jails' toilets, attracting insects. When plaintiffs asked for more water, they were locked down in their cells as punishment. The pretrial detainees responded with this putative class action, in which they alleged that the defendants violated their Fourteenth Amendment due process rights. Defendants moved to dismiss on the ground of qualified immunity. The district court denied their motion, and this interlocutory appeal followed. We agree with the district court's decision and affirm.
I
Because this case comes to us as a motion to dismiss asserting qualified immunity, we accept all well pleaded factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs' favor.
Reed v. Palmer
,
Defendants Lake County Sheriff Mark Curran and Chief of Corrections David Wathen oversee the Lake County Adult Correctional Facility. (We refer to them, as well as the various yet-unnamed defendants, collectively as "Wathen.") At the time of these events, plaintiffs (all pretrial detainees) were housed there. On November 7, 2017, Wathen shut off the water at the jail. He did not forewarn any of the detainees that this shutoff was going to happen. The complaint does not reveal why Wathen shut off the water, although he avers in his briefing that he did so in order to replace a water booster pump.
During the shutoff, the detainees were not totally without water. Wathen provided them with five bottles (of indeterminate size) of water per day for their personal use. These five bottles were all that the detainees were given to drink, brush their teeth, wash their hands and faces, and take medication. When individual detainees asked for more water, they were refused. If a person repeatedly asked for more water, he was put on lockdown.
Wathen also provided a barrel of water (again, of unclear size) to each communal area, called a pod, within the jail. The barrel of water in each pod was to be used for bathing, cleaning the pod's cells, and flushing toilets within the cells. But not all flushing: the detainees were instructed to flush only when feces were present. They were forbidden to flush at all during the night.
Unfortunately, these arrangements for flushing were a failure, in that they often did not clear the toilets. This led to feces and urine sitting in toilets throughout the jail for prolonged periods of time. This was no small issue, as the jail has a capacity of approximately 740 inmates. There were thus hundreds of toilets holding feces and urine. Unsurprisingly, the continuous presence of excrement produced a powerful and putrid smell. Insects were also attracted to the unflushed feces.
The plaintiffs and other detainees say that these conditions were disgusting and caused them tangible harm. They allege that they became "sick, sleep deprived, and agitated" because of the continuous presence of excrement in their cells; that they were not provided with enough water to take needed medications; and that the lack of drinking water and unsanitary conditions caused numerous ailments, including "dehydration, migraine headaches, sickness, dizziness, constipation, and general *820 malaise." Three days later, on November 10, 2017, the water shutoff ended.
II
Because this appeal comes to us after a denial of qualified immunity, we must answer two questions: first, whether the constitutional right asserted by the plaintiffs was clearly established at the time the defendants acted; and second, whether defendants' actions violated that clearly established right.
Reed
,
When attempting to defeat an assertion of qualified immunity, the burden is on the plaintiffs to show that a particular right is "clearly established." To meet that burden, a plaintiff's asserted right must be defined "at the appropriate level of specificity."
Wilson v. Layne
,
A
Plaintiffs here focus on two conditions that they allege violated their clearly established rights: the denial of the minimal amount of water needed for necessary activities of life, and the deprivation of the basic sanitary measure of preventing the build-up of feces, which forced plaintiffs to be surrounded by their own and others' excrement. Both of these claims describe conditions of confinement that courts have long recognized as potential constitutional violations. It has been clearly established for decades that prisons must provide inmates with "the minimal civilized measure of life's necessities."
Rhodes v. Chapman
,
Wathen argues that despite the generally well-established nature of these rights, the circumstances of this case-a non-total deprivation caused by a three-day planned water shutdown-take us into novel territory. But what is so new about it? All but the most plainly incompetent jail officials would be aware that it is constitutionally unacceptable to fail to provide inmates with enough water for consumption and sanitation over a three-day period. Perhaps an official would be excused for miscalculating the amount of water needed ex *821 ante , so long as he worked to fix the problem once it manifested. But that is not the case before us. According to plaintiffs' allegations, Wathen provided a limited amount of water, he and his staff were quickly made aware that more water was needed both for consumption and for sanitation, and they failed to provide any additional water. Indeed, plaintiffs allege that Wathen punished them for continued water requests.
The conditions that plaintiffs depict are very similar to those we have seen in previous cases, in both duration and severity. In
Woods v. Thieret
, we stated that an allegation of three days without food (more specifically, one full day without food, sandwiched between days without dinner or break-fast) stated a claim for a violation of the Eighth Amendment.
We recently reaffirmed in
Budd v. Motley
that conditions-of-confinement cases often involve "a mutually enforcing effect that produces the deprivation of a single, identifiable human need."
B
Wathen argues that his motive for shutting off the water is important, but that is so only if there is a subjective element to the plaintiffs' case. As we now explain, that would be true if they were convicted prisoners, but it is not for pretrial detainees. Courts more commonly see suits of this nature brought by prisoners, whose rights are rooted in the Eighth Amendment's prohibition on cruel and unusual punishment. Pretrial detainees are in a different position, because their detention is unrelated to punishment.
Kingsley v. Hendrickson
, --- U.S. ----,
For many years, we analyzed pre-conviction Fourteenth Amendment and post-conviction Eighth Amendment conditions-of-confinement claims under the same standard: that of the Eighth Amendment, which has both a subjective and an objective component.
Farmer
,
[T]he appropriate standard for a pretrial detainee's excessive force claim is solely an objective one. For one thing, it is consistent with our precedent. We have said that "the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment." Graham [ v. Connor,490 U.S. 386 ,] 395, n. 10,109 S.Ct. 1865 ,104 L.Ed.2d 443 [ (1989) ]. And in Bell [ v. Wolfish ], we explained that such "punishment" can consist of actions taken with an "expressed intent to punish." 441 U.S. [520,] 538,99 S.Ct. 1861 ,60 L.Ed.2d 447 [ (1979) ]. But the Bell Court went on to explain that, in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not "rationally related to a legitimate non-punitive governmental purpose" or that the actions "appear excessive in relation to that purpose." Id., at 561,99 S.Ct. 1861 . The Bell Court applied this latter objective standard to evaluate a variety of prison conditions, including a prison's practice of double-bunking.
It is true that
Kingsley
directly addressed only claims of excessive force, and so some circuits have understood its holding to be confined to those facts. See
Miranda v. Cnty. of Lake
,
The plaintiffs in this case suggest that we should extend
Kingsley
further from the medical context to the general conditions-of-confinement problem we have here. We see no principled reason not to do so. To the contrary, as we recognized in
Miranda
, there is "nothing in the logic the Supreme Court used in
Kingsley
that would support this kind of dissection of the different types of claims that arise under the Fourteenth Amendment's Due Process Clause."
*823
As we recognized in
Miranda
, several of our sister circuits have viewed
Kingsley
's holding as establishing that an objective inquiry applies to a variety of conditions-of-confinement claims, not just those involving excessive force.
Miranda
,
Like the Second and Tenth Circuits, we see no doctrinal reason to distinguish among different types of conditions-of-confinement claims for purposes of applying
Kingsley
's objective standard. Neither the Supreme Court's logic nor its language suggests that such a distinction is proper. See
Wilson
,
C
Though the right to water for drinking and personal sanitation, and the right to live in an environment free of accumulated human waste is clearly established, we must still ensure that plaintiffs have properly invoked that right in their complaint. To survive a challenge under Rule 12(b)(6), a complaint need plead only "enough facts to state a claim for relief that is plausible on its face."
Bell Atl. Corp. v. Twombly
,
A single clogged toilet does not violate the Constitution, and prisoners are not entitled to Fiji Water on demand. But on the other end of the spectrum, a defendant
*824
cannot purposefully deny water until a prisoner is on the brink of death or force a prisoner permanently to live surrounded by her own excrement and that of others. The latter actions would be so obviously unconstitutional that qualified immunity could not protect the perpetrators. See
McDonald by McDonald v. Haskins
,
This would be our conclusion even if we took into account the County's reason for shutting down the water. For present purposes, we will assume that Wathen's stated reason-that a water booster pump needed to be replaced-is accurate. We do note that he might not be entitled to this favorable assumption, as the complaint makes no mention of why the water in the jail was turned off. It is anyone's guess what discovery will reveal. Ensuring that repairs are done in a timely manner so that a jail has clean water is an obviously legitimate governmental objective. But regardless of the legitimacy of that objective, taking as true the conditions described in the complaint, with the plausible inferences we may draw from them, we find conditions of confinement that were objectively unreasonable and "excessive in relation to" any legitimate non-punitive purpose.
Kingsley
,
Some inconvenience was to be expected when Wathen shut off the jail's water. Yet, as we have stressed, the conditions alleged by the plaintiffs went far beyond inconvenience. Exposure to hundreds of unflushable toilets is objectively unreasonable. See
DeSpain
,
Wathen points to
Tesch v. County of Green Lake
,
Finally, we note that because the water shutdown was planned, none of these issues was unforeseeable or incurable. Even cursory Internet research would have given Wathen a general idea of how much water the jail would need to allow the inmates to flush their toilets each day. And if Wathen could not procure enough water to fix that problem, there was a still more obvious solution: portable toilets. If, as the complaint alleges, Wathen was able to transport thousands of bottles of water (five per day for several hundred inmates) and additional tubs of water into the jail, it is not clear why he could not similarly import portable toilets into the jail. Indeed, recognizing that a lack of indoor plumbing is a common problem at campgrounds, county fairs, music festivals, and other large gatherings, numerous companies have sprung up to provide this exact service, including to government entities. See, e.g. Vendor, Contract, and Payment Search , Contract to Service Sanitation , CITY OF CHICAGO , https://webapps1.chicago.gov/vcsearch/city/contracts/24835 (showing "multiple awards for rental and maintenance of portable chemical toilets, sinks, waste water barrels, waterless hand sanitizer dispensers and fresh water trailers" between 2011 and 2020). Had a longer time for the outage been likely, Wathen perhaps could have transported the affected inmates to another facility until the Lake County jail's repairs were completed. At the least, Wathen should have known that he needed to procure more water on the second and third days of the shutdown than he supplied for the first.
We do not list these alternatives to suggest that Wathen must have done one or more of these things to satisfy due process. The Constitution is not so inflexible. Instead, we merely note these examples to show that Wathen appears to have had numerous options that would have allowed the alleged pump repair without depriving the detainees of adequate water and sanitation facilities in the interim. Whether the detainees can prove what they have alleged, and what Wathen and his co-defendants can show in response, remains to be seen.
III
"[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs-
e.g.
, food, clothing, shelter, medical care, and reasonable safety-it transgresses the substantive limits on state action set by the ... Due Process Clause."
DeShaney v. Winnebago Cnty. Dep't of Soc. Servs.
,
We thus AFFIRM the district court's order denying the defendants' request for qualified immunity.
Sykes, Circuit Judge, concurring in the judgment.
After
Miranda v. County of Lake
,
The first concerns the defendant's state of mind with respect to his physical acts- i.e. , his state of mind with respect to the bringing about of certain physical consequences in the world. The second question concerns the defendant's state of mind with respect to whether his use of force was "excessive."
As to the first question, the Court reiterated the rule that negligently inflicted harm is not actionable as a constitutional violation; rather, "the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind."
In
Miranda
we extended
Kingsley
's "objective unreasonableness" standard to a claim that a pretrial detainee received constitutionally inadequate medical care.
Like my colleagues, I see no principled reason to treat general conditions-of-confinement claims differently than medical conditions-of-confinement claims. I therefore agree that this case is governed by
Kingsley
's objective standard-but importantly, only at the step in the liability framework that requires an
interpretation
of the conditions to which the plaintiffs were subjected during the three-day water shutoff. As I've just explained, under
*827
Kingsley
the constitutional claim still carries a subjective component. To prevail, the plaintiffs must prove that the defendants acted purposefully, knowingly, or recklessly; negligence is not enough. In addition, nothing in
Kingsley
removed the threshold requirement in every conditions-of-confinement claim: "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm."
Farmer v. Brennan
,
So to prevail on a claim alleging unconstitutional conditions of pretrial confinement, the plaintiff must prove three elements: (1) the conditions in question are or were objectively serious (or if the claim is for inadequate medical care, his medical condition is or was objectively serious); (2) the defendant acted purposefully, knowingly, or recklessly with respect to the consequences of his actions; and (3) the defendant's actions were objectively unreasonable-that is, "not rationally related to a legitimate governmental objective or ... excessive in relation to that purpose."
Kingsley
,
With these understandings, I agree that the qualified-immunity defense fails at this early stage of the litigation. Qualified immunity is normally hard to win on a Rule 12(b)(6) motion.
See, e.g.
,
Reed v. Palmer
,
The defendants say they had a legitimate purpose for shutting off the water (to replace a water pump) and the ensuing conditions in the jail were not excessive in relation to that purpose. As my colleagues note, the factual basis for this argument lies outside the complaint. Regardless, we cannot evaluate the defendants' response to the water-pump contingency without a factual record. At this stage we take the allegations in the complaint as true, and the plaintiffs are entitled to all reasonable inferences in their favor. The defendants may of course renew their immunity claim as the facts develop.
Reed
,
Reference
- Full Case Name
- Tapanga HARDEMAN, Et Al., Plaintiffs-Appellees, v. Sheriff Mark CURRAN, Et Al., Defendants-Appellants.
- Cited By
- 615 cases
- Status
- Published