by R. Bailey
The Tenth Circuit Court of Appeals held that Utah State Prison officials were entitled to qualified immunity and were properly granted summary judgment in an excessive use of force suit, because the gassing of 100 prisoners during an attempt to quell a disturbance was inadvertent, void of serious injuries and not protected by any clearly established constitutional right.
Prisoner Timothy Redmond, representing a class of Utah prisoners, filed a 42 U.S.C. § 1983 suit against prison officials Scott Crowther, Robert Powell, and Jason Nicholes. He alleged that on August 3, 2011, the officials violated Eighth Amendment and Utah Constitutional rights by exposing prisoners to tear gas, discouraging and disallowing adequate medical attention, verbally abusing prisoners, and failing to train prison staff in the proper use of tear gas.
The exposure occurred when prisoner James Hill refused an order to return to his cell and instead locked himself in the recreation yard in defiance of prison guards. Powell informed Nicholes of the situation, and tear gas was used to force Hill’s compliance.
After the CS gas was deployed, the officials realized that the HVAC intake vent supplying four housing units and a staff administrative area was drawing in the gas and spreading it to the units. Prisoners experienced breathing problems and irritated eyes, noses, and ears.
Despite the exposure, officials continued to focus on Hill who was already secured on the recreation yard. When Powell finally evacuated two of the four units, he threatened prisoners with lockdown or a transfer if they complained and sought medical attention. He did not attempt to evacuate the other two units because he said he had made sufficient effort to air them out.
The district court held that because the actions taken were used to restore order following a disturbance, the standard of review was based on excessive use of force, not conditions of confinement, and qualified immunity attached unless Redmond could show a violation of clearly established constitutional rights.
The Tenth Circuit held that there was no clearly established right to not be “inadvertently” exposed to tear gas, to be evacuated from the exposed area instead of just airing it out, and to have staff adequately trained in the use of tear gas.
The claims would also fail because Redmond could not show evidence of any serious injury resulting from the exposure to the gas, any difference to medical needs, verbal abuse, or inadequate training.
The Tenth Circuit concluded that the defendants were entitled to qualified immunity and summary judgment. Redmond’s request for injunctive relief was also denied because it was based on speculation that similar future harm was real and immediate. The claim was not credible because new procedures had already been implemented to consider the HVAC vents before using tear gas.
Summary judgment was affirmed.
See: Redmond v. Crowther, __ f.3d __ (10th Cir., 2018) Karra J. Porter, counsel for Redmond
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Related legal case
Redmond v. Crowther
|Cite||__ f.3d __ (10th Cir., 2018)|
|Level||Court of Appeals|