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Tenth Circuit: Qualified Immunity Defeats 22-Year Solitary Confinement Claims

by Mark Wilson

The U.S. Court of Appeals for the Tenth Circuit held on August 29, 2018 that prison officials were entitled to qualified immunity in a lawsuit challenging a prisoner’s 22 years in solitary confinement. 

Kansas prisoner Richard Grissom was placed in solitary on August 4, 1996, due to allegations of drug trafficking. He has remained there ever since after accruing additional serious rule violations.

Grissom filed suit challenging his continued placement in solitary confinement, but a federal district court granted summary judgment to prison officials in 2012 and the Tenth Circuit affirmed. See: Grissom v. Werholtz, U.S.D.C. (D. Kan.), Case No. 5:07-cv-03302-SAC (D. Kan.) (Grissom I), aff’d, Grissom v. Werholtz, 524 Fed. Appx. 467 (10th Cir. 2013) (Grissom II).

Nevertheless, Grissom brought a second federal suit in 2015, alleging due process, equal protection and Eighth Amendment violations. The district court granted the defendants’ motion for summary judgment in July 2017. See: Grissom v. Roberts, U.S.D.C. (D. Kan.), Case No. 5:15-cv-03221-JTM (Grissom III).

The Tenth Circuit affirmed, again holding the defendants were entitled to qualified immunity. It first declared that Grissom’s previous lawsuit was “a great hurdle in his path, and he has not ... surmounted it.” Given the absence of any new Supreme Court or Tenth Circuit case law, the Court of Appeals wrote it must determine “whether something significant has happened since” its 2013 opinion. 

Applying the four-factor test in Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334 (10th Cir. 2007) to determine if segregated confinement imposes an atypical and significant hardship, the Court affirmed the dismissal of Grissom’s due process claim on qualified immunity grounds.

Most notably, the Tenth Circuit rejected Grissom’s claim that the reasons for his continued segregation were stale and no longer applicable. While Grissom was first placed in solitary in 1996 for drug trafficking, he subsequently committed numerous other serious disciplinary violations.

In 2001, Grissom’s status was changed to “extreme escape risk” after prison officials intercepted a letter sent from an outside source. In 2003, a cell phone, extra batteries and accessories were found in Grissom’s segregation cell. On January 26, 2005, another cell phone was found near Grissom during a strip search. And during a June 1, 2005 search of Grissom’s cell, guards found two cell phones, chargers, sandpaper, razors, a soldering iron, box cutter blades, a screwdriver and drill bits.

Those factors justified Grissom’s continued solitary confinement in 2013, and he offered no authority preventing the Court of Appeals from relying on those same factors in his current lawsuit. 

Nevertheless, the appellate court noted that Grissom continued to engage in serious misconduct since the Grissom II decision. In October 2015, he had propositioned a female guard in a sexually explicit note, instructing her on how to communicate with him using a non-traceable cell phone maintained by someone on the outside.

“Given Grissom’s failure to point to any controlling Supreme Court or Tenth Circuit precedent that would change the established law since his prior appeal, and his failure to point to any factual changes since that appeal that would be decisive under clearly established law,” the Court of Appeals held the defendants were entitled to qualified immunity on his due process claim. 

The Court also upheld the dismissal of Grissom’s equal protection claim, as he had not demonstrated that he was treated more harshly as an African American than any similarly situated white prisoners.

Finally, the Tenth Circuit concluded that Grissom had failed to point to any clearly established law to overcome the qualified immunity defense on his Eighth Amendment claim. Indeed, another panel of the same circuit court had rejected a similar claim by a federal prisoner who had been held in solitary for over 30 years. [See: PLN, April 2015, p.20]. 

Accordingly, the district court’s summary judgment order was affirmed. See: Grissom v. Roberts, 902 F.3d 1162 (10th Cir. 2018). 

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Related legal case

Grissom v. Roberts