                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 12, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
JOSEPH Z. WOMBLE,

      Plaintiff - Appellant,

v.                                                          No. 17-7023
                                               (D.C. No. 6:16-CV-00328-RAW-SPS)
KAMERON HARVANEK,                                           (E.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Plaintiff Joseph Z. Womble, proceeding pro se, brought an action under

42 U.S.C. § 1983 against defendant Kameron Harvanek, the warden at the Mack

Alford Correctional Center (“MACC”), alleging that Harvanek was deliberately

indifferent to Womble’s unconstitutional conditions of confinement when Womble

was a prisoner at MACC. The district court dismissed the complaint after concluding

that it failed to state a claim upon which relief could be granted. The court then



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
assessed a “strike” against Womble under 28 U.S.C. §1915(g).1 Womble now

appeals from the dismissal of his complaint and the district court’s assessment of a

strike against him. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and

remand.

                                            I

      In his complaint, Womble alleged that Harvanek “is wholly responsible for the

day to day operations of the [MACC] and is responsible for Plaintiff’s injury.”

Womble explained that in August 2015, the ice machine and water fountain in his

housing unit at MACC stopped working and neither was replaced.

      He alleged that the temperatures in his cell exceeded 90 degrees over 15 times

in June 2016 and that he became severely dehydrated on three different occasions

that month. He asserted that he filed a complaint with the warden on two different

occasions that month and that “[t]he complaint was regarding the heat and lack of

cold[,] uncontaminated drinking water.”

      Harvanek responded to Womble’s initial complaint (also called a “request to

staff”) by “telling Plaintiff to drink the water from his cell sink.” But Womble


      1
        Congress enacted the Prison Litigation Reform Act (PLRA) in 1996 to bring
prisoner litigation under control. See Childs v. Miller, 713 F.3d 1262, 1264-65
(10th Cir. 2013). As part of PLRA, Congress added 28 U.S.C. § 1915(g), which
revokes in forma pauperis (ifp) privileges “for any prisoner who has filed three or
more lawsuits that fail to state a claim, or are malicious or frivolous.” Id. at 1265
(quotation marks omitted). “Under the PLRA, prisoners obtain a ‘strike’ against
them for purposes of future ifp eligibility when their action or appeal . . . is dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted . . . .” Id. (quotation marks omitted).

                                            2
alleged that the water from his cell sink “is contaminated, brown in color, and often

made Plaintiff sick from drinking [it]. Plaintiff would vomit many times after

drinking this water.”

      In his next complaint/request, Womble “complained that because the

temperature was so high on Plaintiff’s cellblock, and in Plaintiff’s cell, Defendant

must provide cold[,] uncontaminated drinking water by providing a water fountain.”

He alleged that “Defendant responded denying relief stating ‘You have [enough] ice

and water to prevent dehydration.[’]” But Womble alleged that “the cell water was

contaminated and warm, and ice was being provided once per day. Plaintiff received

one 6 oz scoop of ice per day, half-melted because of the heat.”

      He further alleged:

      By subjecting Plaintiff to extreme conditions of confinement, specifically
      excessive heat, forcing Plaintiff to choose between drinking warm,
      contaminated drinking water or no water at all with full knowledge that this
      was causing Plaintiff injury and that these conditions are extremely
      dangerous, Defendant has acted with deliberate indifference to Plaintiff’s
      health and safety needs, in violation of his rights under the Eighth and
      Fourteenth Amendments to the United States Constitution.
                                            II

      We have given the following guidance for reviewing a district court’s decision

to grant a motion to dismiss:

      We review de novo a district court’s dismissal under Federal Rule of Civil
      Procedure 12(b)(6). We assume the truth of all well-pleaded facts in the
      complaint, and draw all reasonable inferences therefrom in the light most
      favorable to the plaintiffs. A complaint will survive dismissal only if it
      alleges a plausible claim for relief—that is, the factual allegations must be
      enough to raise a right to relief above the speculative level. Even so,
      granting a motion to dismiss is a harsh remedy which must be cautiously

                                            3
       studied, not only to effectuate the spirit of the liberal rules of pleading but
       also to protect the interests of justice. Thus, a well-pleaded complaint may
       proceed even if it strikes a savvy judge that actual proof of those facts is
       improbable, and that a recovery is very remote and unlikely.
Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks,

citations, and brackets omitted).

       Conditions of confinement violate the Eighth Amendment’s prohibition

against cruel and unusual punishment when “they result[] in unquestioned and

serious deprivation of basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347

(1981). “The Constitution . . . does not mandate comfortable prisons, and only those

deprivations denying the minimal civilized measure of life’s necessities are

sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v.

Seiter, 501 U.S. 294, 298 (1991) (quotation marks and citations omitted).

       “To prevail on a conditions of confinement claim under the Eighth

Amendment, an inmate must establish that (1) the condition complained of is

sufficiently serious to implicate constitutional protection, and (2) prison officials

acted with deliberate indifference to inmate health or safety.” DeSpain v. Uphoff,

264 F.3d 965, 971 (10th Cir. 2001) (quotation marks omitted). To show deliberate

indifference, “a plaintiff must establish that defendant(s) knew he faced a substantial

risk of harm and disregarded that risk, by failing to take reasonable measures to abate

it.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation marks omitted).

       Womble argues on appeal that the district court erred in determining that his

complaint did not state a claim for an Eighth Amendment violation. He asserts that


                                              4
his complaint sufficiently alleged that Harvanek took inadequate measures to respond

to the risk of serious harm caused by high temperatures in his cell given the lack of

adequate, uncontaminated water. He further asserts that the district court erred in

concluding that Harvanek’s only involvement was the denial of his grievances.

Womble argues that he properly alleged Harvanek’s personal participation in the

alleged constitutional deprivation. Womble also asserts that the court erred in

assessing a strike against him when it dismissed his complaint, because he has stated

a valid Eighth Amendment claim.

                                           A

      The district court first determined that Womble had failed to show that the

broken water fountain, the broken ice machine, or the temperature of his cell

qualified as a sufficiently serious deprivation. The court noted that Womble received

a daily cup of ice during the summer months, and he had water from the sink in his

cell. The court further noted that “[a]lthough Plaintiff claims the water in his cell

was contaminated, he offers only conclusory allegations. In addition, there is no

indication that Plaintiff’s symptoms of dehydration and vomiting were serious

enough to warrant treatment.”

      We disagree with the district court’s determination that Womble offered only

conclusory allegations regarding his claim that the water in his cell was

contaminated. Womble came forward with sufficiently specific allegations that the

water was contaminated. He alleged the water was brown, and that it often made him

sick, including causing him to “vomit many times after drinking [it].” These are

                                            5
well-pleaded factual allegations that should be accepted as true; these are not

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” that the Supreme Court found to be insufficient in Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

      We are not persuaded by Harvanek’s argument on appeal that Womble needed

to provide “evidence” to support his allegation that the water was contaminated. The

district court was considering the complaint on a motion to dismiss, not summary

judgment. At this stage in the proceedings, Womble did not need to come forward

with actual evidence of contamination and, as discussed above, he did make specific

allegations to support his claim that the water was contaminated.

      Lack of access to chilled water and ice would not, standing alone, constitute a

sufficiently serious deprivation to sustain an Eighth Amendment conditions of

confinement claim. However, access to a sufficient supply of uncontaminated

drinking water is a basic human need. Womble alleged that the water fountain was

broken; the ice machine was broken; the heat in his cell was excessive; he received

only six ounces of ice per day; and he couldn’t drink the water in his cell because it

was contaminated and made him sick. Taking Womble’s allegations as true, he has

plausibly alleged a sufficiently serious deprivation to survive a motion to dismiss and

the district court erred in concluding to the contrary.

                                            B

      Next, the district court determined that Womble had failed to sufficiently

allege deliberate indifference. This determination was based on the court’s

                                            6
conclusion that “Defendant’s denial of Plaintiff’s grievances is not evidence of

deliberate indifference.”

      Again, we disagree with the district court’s characterization of Womble’s

allegations. Womble did more than allege deliberate indifference based on the denial

of a grievance. He alleged that Harvanek was “wholly responsible for the day to day

operations of the [MACC].” He then alleged that he made an “initial request to staff”

requesting a water fountain due to the lack of cold, uncontaminated drinking water.

He further alleged that it was Harvanek who responded directly to his request,

denying it and “telling Plaintiff to drink the water from his cell sink.” When Womble

complained a second time about the high temperature in his cell and the need for a

water fountain to provide cold, uncontaminated drinking water, it was Harvanek who

again denied the request and told Womble he had enough “ice and water to prevent

dehydration.” Womble alleged that Harvanek knew that the situation was causing

him harm and that Harvanek was forcing him to choose between drinking no water or

drinking contaminated water. As he stated in his complaint:

      By subjecting Plaintiff to extreme conditions of confinement, specifically
      excessive heat, forcing Plaintiff to choose between drinking warm,
      contaminated drinking water or no water at all with full knowledge that this
      was causing Plaintiff injury and that these conditions are extremely
      dangerous, Defendant has acted with deliberate indifference to Plaintiff’s
      health and safety needs, in violation of his rights under the Eighth and
      Fourteenth Amendments to the United States Constitution.
      This situation is also distinguishable from Stewart v. Beach, 701 F.3d 1322

(10th Cir. 2012), which the district court cited for support. Stewart was an inmate at

the El Dorado Correctional Facility. He requested a transfer to be closer to his

                                           7
mother who had cancer, but the day of the transfer Officer Agnes Beach refused to let

him board the transport vehicle because he would not comb out his dreadlocks. Id. at

1326. Beach consulted with her supervisor, Thad Wilson, and he gave Stewart a

choice – either cut his hair or forego the transfer. Stewart informed Beach and

Wilson that he was a practicing Rastafarian and therefore was strictly forbidden to

cut his hair. Wilson ultimately cancelled the transfer and sent Stewart to

administrative segregation. Stewart later filed a grievance, which was denied. He

then filed a grievance appealing that denial to Warden Ray Roberts, and Roberts

denied the appeal. Id.

       Stewart subsequently filed a pro se complaint against Beach, Wilson and

Roberts, asserting the defendants forced him to choose between his religious beliefs

and transferring to a facility closer to his ailing mother, and that this violated his

rights under the Free Exercise Clause and the Religious Land Use and

Institutionalized Persons Act. As is relevant here, the district court granted summary

judgment and dismissed the claims against Roberts “for lack of personal participation

because his only act was to deny Stewart’s grievance appeal.” Id. at 1327.

       On appeal, this court upheld the district court’s decision because the only fact

Stewart pointed to regarding Roberts’s participation was “Roberts’s summary denial

of his grievance appeal.” Id. at 1328. This court explained that “[t]he denial of a

grievance, by itself without any connection to the violation of constitutional rights

alleged by plaintiff, does not establish personal participation under § 1983.” Id.

(quotation marks omitted). And therefore, “[w]hatever knowledge Roberts may have

                                             8
had when he denied the appeal, his only involvement was to deny the grievance

appeal, which is insufficient for § 1983 liability.” Id.

      Roberts’s participation in the alleged constitutional violation in the Stewart

case was very attenuated, because it was Beach and Wilson who told Stewart to cut

his hair and Roberts did not even deny the initial grievance related to the incident but

instead denied the appeal of that grievance. But Womble asserts Harvanek was

directly involved with the alleged constitutional violation. Womble requested a

drinking fountain to provide cold, uncontaminated water, and Harvanek denied that

request, telling him to drink the water in his cell. Womble further alleges that his cell

water was contaminated, brown in color, and made him vomit. Therefore, Harvanek

“forc[ed] [him] to choose between drinking warm, contaminated water or no water at

all with full knowledge that this was causing Plaintiff injury and that these conditions

are extremely dangerous . . . .” Because Womble alleged that Harvanek participated

in the alleged constitutional violation by doing more than just denying a grievance,

the reasoning in Stewart is inapplicable, and the district court erred in granting the

motion to dismiss on that basis.

                                           III

      “[G]ranting a motion to dismiss is a harsh remedy” and therefore a

well-pleaded complaint should proceed, even if seems “that actual proof of those

facts is improbable, and that a recovery is very remote and unlikely.” Dias, 567 F.3d

at 1178 (quotation marks and brackets omitted). Accepting as true Womble’s

well-pleaded factual allegations, Womble has alleged a plausible claim for relief.

                                            9
Accordingly, we reverse the district court’s judgment dismissing Womble’s

complaint for failure to state a claim upon which relief can be granted and we vacate

the district court’s assessment of a strike on that basis. We remand for further

proceedings consistent with this decision.

      The district court granted Womble leave to proceed on appeal without

prepayment of costs and fees. We remind Womble that he is obligated to continue

making partial payments until his fees are paid in full.

                                             Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




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