Opinion
Case No. 98-CV-1214-T-27TGW
June 29, 2001
SUPPLEMENTAL ORDER DENYING MOTION TO DISMISS
This cause comes before the Court on Defendant's Motion to Dismiss (doc. 44), on remand from the United States Court of Appeals for the Eleventh Circuit. On November 25, 1998, Defendant's motion to dismiss was denied. The Eleventh Circuit reversed and remanded, stating,
In its order denying Hester's motion to dismiss on qualified immunity grounds, the district court failed to set out the reasons for denying the motion, particularly the conduct engaged in by Hester, which violated a clearly established statutory or constitutional right that a reasonable person would have known. . . . This case is REMANDED to the district court for further discovery and with instructions for the district court to delineate the reasons for denying the motion.
(USCA Opinion, doc. 78) (emphasis added).
This Court's predecessor ordered Plaintiff to file a supplemental response to Defendant's motion to dismiss to demonstrate that the federal "rights" allegedly violated by Defendant were "clearly established" (doc. 85). Discovery was stayed pending resolution of the motion to dismiss. The case has since been transferred to the undersigned. This Court has reviewed the motion to dismiss, supplements and responses filed by Plaintiff and concludes the motion to dismiss should be denied as Plaintiff's allegations that Defendant forced him, under the threat of discipline, to clean up massive blood spills without furnishing Plaintiff available protective clothing and equipment, demonstrate a deliberate indifference to a known, substantial risk of serious harm in violation of a clearly established Eighth Amendment right of which a reasonable person would have known, given the consensus of United States Supreme Court decisions proscribing the exposure of inmates to contagious or infectious diseases and other obviously dangerous conditions likely to produce future harm.
Brooks v. Blue Cross and Blue Shield of Florida. Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997) (court can go outside four corners of complaint in analysis of motion to dismiss).
I. Deprivation of a Constitutional Right: Violation of the Eighth Amendment
Plaintiff alleges Defendant violated the Eighth Amendment to the United States Constitution by depriving him basic human needs during his imprisonment. (Doc. 40). The contours of the protections afforded an inmate by the Eighth Amendment are well-established:
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. . . . The rationale for this principle is simple enough: when 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 Eighth Amendment and the Due Process Clause.
DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989) (citations omitted).
The Eighth Amendment prohibits the infliction of cruel and unusual punishments. The Supreme Court has held that a guard's failure to take reasonable steps to avoid a substantial risk of serious harm to an inmate may constitute a violation of that right. Farmer v. Brennan, 511 U.S. 825 (1994). The Eighth Amendment also applies to conditions of confinement that are not formally imposed as part of a sentence. Wilson v. Seiter, 501 U.S. 294 (1991). Establishing a violation of the Eighth Amendment involves a two-pronged showing; one objective, the other subjective. First, the inmate must demonstrate that the conditions of confinement were objectively so serious as to amount to the denial of a basic human need. Wilson, 501 U.S. at 298. Next, it must be demonstrated that the official acted with deliberate indifference. Farmer, 511 U.S. at 834. The Court in Farmer undertook to define what constitutes "deliberate indifference." Having adopted "subjective recklessness" as it is used in criminal law as a "familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause" id. at 839-840, the Court observed that deliberate indifference is demonstrated when an inmate shows the official "acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842.
This subjective component requires a showing that the official "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and he must also [have drawn] the inference." Id. at 837. The official need only have been "aware of the risk of harm, as opposed to being aware of actual harm." Hope v. Pelzer, 240 F.3d 975, 978 (11th Cir. 2001). Furthermore, "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious" Id., citing Farmer, 511 U.S. at 842.
In his Amended Complaint, Plaintiff alleges that between approximately January and October 1995, while he was incarcerated at the Zephyrhills Correctional Institution, Defendant Hester, on three separate occasions, ordered Plaintiff to clean up large quantities of inmates' blood, that he was only provided with a pair of plastic or latex gloves, that Hester became concerned about the location of a mop that Plaintiff had used to clean up and scrub a blood-stained cell and that the Florida Prison System, including the Zephyrhills Correctional Institution, was equipped with blood-spill kits containing full body protective clothing to prevent HIV infection and contamination. Plaintiff alleges that on each occasion, he asked to open a blood-spill kit and on each occasion, Defendant Hester refused to provide Plaintiff with a blood spill kit. Plaintiff alleges that as a result, he was exposed to and contracted HIV. He further alleges that, "[i]t is commonly known by the Florida prison authorities and the medical community at large, as well as other agencies (that come into contact with blood) that this type of (full-body) protective clothing must be worn to prevent the spread of HIV." (Doc. 40).
Plaintiff has sufficiently alleged a deprivation of his rights under the Eighth Amendment. He claims he was forcibly exposed by Defendant to a potentially fatal contagion without the benefit of available protective gear. Accordingly, the objective prong is satisfied. Plaintiff has also met the subjective standard as required by Farmer. Plaintiff's supplemental response (doc. 86) argues that Defendant's actions breached Department of Corrections ("DOC") policy and procedure, DOC Health Services Bulletins, the Florida Administrative Code and DOC officer training guidelines, of which Defendant would have known. The DOC "Bloodborne Pathogens Exposure Control Plan," in place at the time of the alleged incidents and submitted in support of Plaintiff's response, repeatedly alerts DOC employees of the risk of Hepatitis and HIV transmission and the steps that should be taken to avoid transmission to either DOC employees or inmates when cleaning up large blood spills. (See exhibit to doc. 84). Defendant's own statements indicate he would never clean up blood spills as described by Plaintiff without full protective gear issued and required by the DOC for large blood spills. Defendant admitted in his deposition that he "assumed all body fluids were dangerous just automatically since Hepatitis B and HIV began to get some publicity." (See Hester depo. at p. 23, lines 9-12). Despite this knowledge, Defendant required Plaintiff to clean up massive blood spills with nothing more than gloves, which according to Plaintiff, were torn on at least one occasion. (Supplemental Response to Defendant Hester's Motion to Dismiss, p. 11).
Further supplements show that Defendant's actions have been characterized as criminal. In a suit based on the same alleged facts filed in the Sixth Judicial Circuit Court against Michael Moore, Secretary of the Department of Corrections, the state Attorney General argued the case should be dismissed because Defendant's actions were "a wanton and willful disregard of human rights . . . ultra vires and . . . criminal," and therefore the state was entitled to sovereign immunity. (See doc. 88). The judge agreed and the case was dismissed. (See doc. 89).
The inquiry, however, does not end simply because the Court finds Plaintiff's allegations are sufficient to state an Eighth Amendment violation. Defendant will only be subject to liability for violating Plaintiff's rights if stripped of the protection of qualified immunity. Hope. supra.
II. Oualified Immunity for Defendant's Constitutional Violation
Qualified immunity shields state officials from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see alsoWilson v. Layne, 526 U.S. 603, 609 (1999); Anderson v. Creighton, 483 U.S. 635, 638 (1987); Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.) (en banc), cert. denied, 522 U.S. 966 (1997); Lassiter v. Alabama A M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc). Unless a government agent's act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. Malley v. Briggs, 475 U.S. 335, 341-43 (1986).
A. Qulified Immunity Two-Step Analysis
An evaluation of the applicability of qualified immunity to a state actor requires a two-step analysis. First, the Court must first determine whether the Plaintiff has alleged, in the light most favorable to the Plaintiff, a deprivation of a constitutional right. County of Sacramento v. Lewis, 523 U.S. 833 (1998); Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir. 1999). As discussed in the previous section, this Court has determined Plaintiff has met this burden. Secondly, it must be determined whether those rights were clearly established at the time the alleged violation occurred. Wilson 526 U.S. at 609. If the rights were not clearly established, the state actor is entitled to qualified immunity and the case proceeds no further.
The recent decision in Saucier v. Katz, No. 99-1977, 2001 WL 672265 (2001) reaffirms this two-step analysis in the qualified immunity context.
B. Clearly Established Rights Described by Precedential Authorities
A right is clearly established if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. The qualified immunity test is "one of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith." Hope, 240 F.3d at 981, citing Swint v. City of Wadley. Ala., 51 F.3d 988, 995 (11th Cir. 1995) (internal citations omitted). Thus, the government actor's intent and motivation are insignificant in determining entitlement to qualified immunity. Flores v. Satz, 137 F.3d 1275, 1277 n. 4 (11th Cir. 1998).
The question to be posed, therefore, is could "a reasonable official have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." Hope, 240 F.3d at 981 (citing Swint, 51 F.3d at 995) (citations omitted). The Eleventh Circuit has explained that to meet the "clearly established" requirement, "the federal law by which the government official's conduct should be evaluated must be preexisting, obvious and mandatory so that a similarly situated, reasonable government agent would be on notice that his or her questioned conduct violates federal law under the circumstances." Id., citing Hill v. Dekalb Regional Youth Det. Ctr., 40 F.3d 1176, 1185 (11th Cir. 1994). The court clarified that precedent cases relied upon to meet the "clearly established" requirement must be more than analogous. There must be a material similarity in order to meet the bright-line test. Id. The facts of precedent cases need not be the same as the facts of the immediate case, but they do need to be "materially similar." Walker v. Schwalbe, 112 F.3d 1127, 1132 (11th Cir. 1997). "[I]n the light of pre-existing law, the unlawfulness must be apparent." Anderson, 483 U.S. at 640;Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). Consequently, qualified immunity is a sharply focused, situation-bound analysis. Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999). The Supreme Court and Eleventh Circuit have stated that a plaintiff cannot strip a § 1983 defendant of qualified immunity by citing to general rules or abstract rights. See Anderson, 483 U.S. at 639; Walker, 12 F.3d at 1132. Rather, "[q]ualified immunity focuses on the actual, specific details of concrete cases." Id. (citing Lassiter v. Alabama A M Univ., 28 F.3d 1146, 1149-50 (11th Cir. 1994). In this Circuit, the law may be clearly established for qualified immunity purposes only by opinions from the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the highest court of the state in whose law is at issue. Hamilton v. Cannon, 80 F.3d 1525, 1531-31 n. 7 (11th Cir. 1996).
1. Unsafe Prison Conditions
It is "cruel and unusual punishment to hold convicted criminals in unsafe conditions." Youngberg v. Romeo, 457 U.S. 307, 315-16(1982). The Eighth Amendment may be violated by intentional exposure to serious contagious diseases. Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) (approved by the United States Supreme Court in Helling v. McKinney, 509 U.S. 25, 34-35(1993)) ("The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event."). In Gates, the Fifth Circuit held that inmates were entitled to relief under the Eighth Amendment, having shown their personal safety was threatened by, among other conditions, the mingling of inmates with serious contagious diseases with other inmates. The Fifth Circuit stated,
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.
[t]herefore, we agree with the district court's conclusion that the prison authorities have abused their discretion and that the confinement of inmates at Parchman, in barracks unfit for human habitation and in conditions that threaten their physical health and safety and deprive them of basic hygiene and medical treatment by reason of gross deficiencies in plant, equipment and medical staff, not only departs from state law, but constitutes cruel and unusual punishment.Gates, 501 F.2d at 1303.
In Helling, the Supreme Court wrestled with the contention that future health risks were not actionable, stating "[w]e have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmates's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year." Helling, 509 U.S. at 33 (Inmate stated a cause of action under the Eighth Amendment alleging that prison officials, with deliberate indifference, exposed him to environmental tobacco smoke to such a degree that it posed an unreasonable risk to his health). Referring to a prior decision, Hutto v. Finney, 437 U.S. 678 (1978), where prisoners were being held in overcrowded conditions and exposed to infectious diseases such as hepatitis and sexually transmitted diseases, the Court observed with approval that Hutto was one situation "for which the Eighth Amendment required a remedy" despite the fact that disease transmission was not guaranteed for all those exposed. Helling, 509 U.S. at 33. In Hutto, the facts established that "[a]lthough some prisoners suffered from infectious diseases such as hepatitis and venereal disease, mattresses were removed and jumbled together each morning, then returned to the cells at random in the evening." Hutto, 437 U.S. at 682-683. Continuing, the Court in Helling found it could not "hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms." Helling, 509 U.S. at 33.
2. Prison Discipline or Punishment
The most recent and instructive case from the Eleventh Circuit on the issue of qualified immunity in a prison setting is Hope v. Pelzer, supra. In that case, prison guards violated an inmate's Eighth Amendment rights by tying him to a hitching post as a disciplinary measure, without the benefit of bathroom breaks or sufficient water breaks, long after he no longer posed a security threat. Hope, 240 F.3d at 982. However, the court determined that at the time of the guards' actions, there was "no clear, bright-line test established . . . that would survive [the] circuit's qualified immunity analysis." Id. at 981. The court did not find any language in arguably analogous cases which "established that impermissible use of the hitching post constitutes cruel and unusual punishment clearly enough that `a reasonable official would understand that what he is doing violates that right.'" Id. at 981-982, citingAnderson, 483 U.S. at 640. Thus, the second prong of the qualified immunity analysis was lacking and the guards were entitled to qualified immunity.
The instant case differs from Hope in two significant ways. First, review of pertinent case law preceding the complained of events establishes that there are materially similar cases which proscribe the exposure of inmates to infectious disease or threat of future ills. See Helling, Hutto and Gates, supra. Although the diseases or dangers were not HIV or AIDS, they were similarly highly contagious diseases such as hepatitis and sexually transmitted diseases or obviously dangerous conditions likely to produce future harm, such as second-hand smoke, to which inmates were being exposed against their will. As the Supreme Court stated in Helling with regard to the Hutto scenario, the Eighth Amendment required a remedy when inmates were crowded into cells with inmates with contagious diseases, even though "it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed." Helling, 509 U.S. at 33. The instant situation is materially similar. Certainly, a remedy is required when a guard intentionally exposes an inmate to almost certain infection though contact with contaminated blood of other inmates.
The second important aspect that distinguishes this case from Hope v. Pelzer, supra, lies in the difference between cases involving disciplinary action and cases involving conditions of confinement. InHope, the Eleventh Circuit stressed the necessity of finding a materially similar case which could serve as a bright line rule against which the defendant's disciplinary actions could be measured for reasonableness. In this respect, when the complained of actions fall within the realm of punishment, as opposed to conditions of confinement, it is crucial to find factually similar cases in order to judge the reasonableness of the nature and manner of the punishment; that is, a bright-line test must be met. In the context of exposure to a substantial risk of harm to an inmate's health as a result of general prison conditions such as, for example, exposure to hazardous waste, asbestos, second-hand smoke, threat of inmate violence, or as in the instant case, exposure to potentially contaminated blood, the courts have found it unnecessary for a prisoner plaintiff to point to "a prior case holding the very action in question to be unlawful." Powell, 914 F.2d at 1463, (citing to Anderson v. Creighton, 483 U.S. at 640). Instead, Plaintiff must show and has shown that the unlawfulness of Defendant's actions was "apparent in light of pre-existing law." Id.
See, e.g., Burton v. Armontrout, 975 F.2d 543 (8th Cir. 1992), affirming jury verdict in favor of prisoner plaintiff who contended that correctional officers were deliberately indifferent to the risk of harm, such as exposure to the AIDS virus, posed to inmates working with raw sewage. See also Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990), finding that appellant prisoner plaintiffs presented "sufficient evidence of a prima facie violation" of the Eighth Amendment (to survive a Rule 41(b) motion to dismiss) where the inmates alleged they were forced to clean out a 125 degree well into which raw sewage from the prison's toilets flowed continuously, without appropriate protective gear or escape procedures, exposing the inmates to potentially lethal levels of toxic and explosive gases, infectious disease, and heat stroke.
See Powell v. Lennon,, 914 F.2d 1459 (1 1th Cir. 1990).
Helling v. McKinnev, 509 U.S. 25 (1993).
See Farmer v. Brennan, 511 U.S. 825 (1994).
3. Deliberate Indifference to Inmates' Medical Needs
"It is clearly established that prison officials who show deliberate indifference to an inmate's serious medical needs violate the Eighth Amendment." Powell, 914 F.2d at 1463 (citing Estelle, 429 U.S. 97, 104-05 (1976) (Supreme Court stated that deliberate indifference to a prisoner's serious medical needs constitutes cruel and unusual punishment). InPowell, the prisoner informed officials of the existence of friable asbestos in his cell and the danger the asbestos posed to his health. The court found the prison officials' actions in ignoring the plaintiff's request to be moved to an asbestos-free environment constituted deliberate indifference, stating, "[c]ertainly the unlawfulness of these actions should have been apparent to the defendants in light of Estelle." Powell, 914 F.2d at 1464, (citing to Anderson, 483 U.S. at 640). The court also noted that simply because "the plaintiff was requesting preventive treatment in asking to be placed in an asbestos-free environment does not make his medical need not to breathe asbestos any less serious." Id. at 1464 n. 10 (citations omitted). Thus, despite the absence of a factually similar case, the Eleventh Circuit found the prison officials in Powell could not have been unaware of the unlawfulness of their conduct in light of the clearly established law of Estelle. Analogously, while the case at bar does not involve a specific, diagnosed medical need of Plaintiff, it does involve a prison official's deliberate indifference to a known, substantial risk of serious harm.
The Court notes that Defendant does not contest whether exposure to the potentially tainted blood in this case posed a substantial risk to Plaintiff's health.
Notwithstanding the absence of a factually identical case involving deliberate indifference to an inmate's forced exposure to contaminated blood, the Court concludes that Plaintiffs allegations qualify this case as one fitting into that "slender category of cases" where the prison official's conduct lies so obviously at the very core of what the Eighth Amendment prohibits that the unlawfulness of the conduct was or should have been readily apparent to the official. See Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000); Smith v. Maddox, 127 F.3d 1416, 1419 (11th Cir. 1997). This case evidences a situation where there exists a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful. Wilson v. Layne, 526 U.S. 603 (1999). Given the holdings ofEstelle v. Gamble, Farmer v. Brennan, Powell v. Lennon, Helling v. McKinney, Gates v. Collier, and Hutto v. Finney supra, all of which were cases decided well before the acts Plaintiff complains of, the Court finds that Plaintiff's right not to be forcibly exposed to a substantial risk of harm due to dangerous and potentially fatal blood borne contagion without available protective clothing and equipment was a clearly established federal right of which a reasonable person would have known.
III. Defendant Exceeded the Scope of his Discretionary Authority
Alternatively, where the Defendant allegedly violated Department of Corrections' written policies, disregarded state law and in essence ignored the constitutional protections against cruel and unusual punishment, he arguably exceeded the scope of his discretionary authority and ceased acting as a governmental official. Once he began to act, in essence, entirely on his own, "the policies underlying the doctrine of qualified immunity no longer support its application" and, for that reason, Defendant would not be entitled to qualified immunity regardless of whether the law in this area was clearly established. Harbart Int'l. Inc. v. James, 157 F.3d 1271 (11th Cir. 1998). Given the position that the Department of Corrections' has taken in related litigation, one could conclude that Defendant, in ignoring Department of Corrections' written policies, the known risk of harm for exposure to contaminated blood and the availability of protective clothing and equipment, stepped outside the scope of his discretionary authority and lost the protection of qualified immunity, if applicable.
IV. Conclusion
For these reasons Defendant's Motion to Dismiss should be denied. A "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Tiftarea Shopper.Inc., v. Georgia Shopper. Inc., 786F.2d 1115, 1117-18 (11th Cir. 1986) (quoting Conley). In his Amended Complaint, Plaintiff alleges that Defendant acted knowingly, recklessly and intentionally and that Defendant exhibited concern about the storage location of the mop used by the Plaintiff in cleaning the blood spills. While not articulating the "deliberate indifference" standard, it is apparent that Plaintiff could, with appropriate amendments, plead a factually sufficient cause of action under the "deliberate indifference" theory of an Eighth Amendment violation, at least sufficient to meet, if not defeat, Defendant's assertion of qualified immunity. Accordingly, it is
ORDERED AND ADJUDGED that:
Defendant's Motion to Dismiss (doc. 44) is DENIED. The stay on discovery is lifted and the parties are directed to file a status report with the Court within 45 days of this Order so that a revised discovery order may be entered.