                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 10, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 DWIGHT L. ALLEN,

               Plaintiff-Appellee,                       No. 11-6102
          v.                                            (W.D. of Okla.)
 DENNIS AVANCE,                                   (D.C. No. CV-08-00485-F)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, LUCERO, and TYMKOVICH, Circuit Judges.



      Dwight Allen filed a § 1983 suit against Dennis Avance, Captain and Jail

Administrator for Garvin County Sheriff’s Office, alleging that Avance violated

his constitutional rights while Allen was a pretrial detainee in Garvin County Jail.

He claims that he was locked in the county jail “drunk tank” for approximately

twelve days without any bedding, mattress, or toiletries in retaliation for his

decision to file an administrative grievance.




      *
         This order and judgment is not binding precedent except under the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.
      Avance moved for summary judgment, raising a defense of qualified

immunity. The district court denied qualified immunity on two of Allen’s claims

arising out of this incident, one alleging cruel and unusual punishment arising

from the cell conditions, and the other alleging retaliation for filing prison

grievances in violation of the First Amendment. This case comes to us on

Avance’s interlocutory appeal of the denial of qualified immunity under 28

U.S.C. § 1291. The grant of qualified immunity on the other claims was not

appealed.

      We affirm. The district court found disputed historical facts that preclude

summary judgment, and accepting those facts in the light most favorable to Allen,

he has sufficiently alleged a violation of clearly established constitutional rights

to defeat qualified immunity.

                                      I. Facts

      The district court on summary judgment assumed the following facts as true

for purposes of qualified immunity. Allen was a pretrial detainee in the Garvin

County Jail. On April 8, 2008, because a number of guards planned to attend a

funeral, they cancelled scheduled inmate visitation. Allen and his cell mates

protested this cancellation by refusing to return their lunch plates and utensils

when the correctional officers came to collect them. As a result of this protest,

Allen was placed in an observation cell, known as the “drunk tank,” but returned

to his own cell after a short time.

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        That evening Allen asked the guards about the procedure for filing a

grievance about the cancelled visitation. Instead of assisting with the grievance,

the guards took him back to the observation cell and “hogtied” him, placing him

in a four-point restraint. After an hour the guards untied him but left him in the

cell.

        The parties dispute how long Allen spent in this cell, with Avance insisting

that Allen was not left overnight, much less a week, and Allen claiming that he

was still in the observation cell during visiting day a week later on April 15. The

official incident report documents Avance’s order that Allen should be placed in

the observation cell and that he should not be provided with any bedding or

toiletries. Specifically, the report stated that “Avance advised that inmate Allen

is not to have anything (mat, pillow, comm., prop, visits, etc.)” and that “inmate

Allen is to remain in cell 3 untill [sic] further notice, per Capt. Avance.” R, Vol. I

at 206.

        No document records when Allen was returned to the general jail

population. Allen alleges that he spent the next week in the observation cell, with

no toilet paper, toothbrush or toothpaste, towel, mattress, blanket, or pillow.

Every time he needed to use the bathroom, he had to bang on the door of his cell

and ask his guards for toilet paper. Even then, it was delivered not by a guard but

by a trustee. According to Allen’s mother and sister, who visited him during this

time, the jail provided none of the necessities described above, and Allen

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appeared in a ragged condition. During this time, his cell was covered with

standing water, which was left uncleaned throughout his stay.

      When Allen was finally returned to his own cell, he filed a grievance

complaining about his treatment. According to Allen, Avance responded to this

grievance by telling him that “you don’t know a damn thing about the rules and

you don’t run a f***ing thing at this jail.” R., Vol II. at 529. He followed up

with another grievance on April 20 and was again placed back in the observation

cell, this time for four days.

      The district court found that Allen had produced enough evidence in

support of his allegations to create a genuine question of material fact, including

disputed facts about how long he was in the observation cell, the conditions of the

cell, and Avance’s motives.

                                   II. Analysis

      Avance argues on appeal that he is entitled to qualified immunity even

taking as true the allegations that the district court found sufficiently supported in

the record. Before examining whether Allen has properly overcome the qualified

immunity defense, we consider the scope of our appellate review.

      To defeat a qualified immunity defense, the plaintiff must demonstrate that

the defendant’s actions violated a constitutional or statutory right and then show

that the constitutional or statutory rights the defendant allegedly violated were

clearly established at the time of the conduct at issue. Pearson v. Callahan, 555

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U.S. 223, 232 (2009). Qualified immunity “serves to insulate from suit all but the

plainly incompetent or those who knowingly violate the law.” Lewis v. Tripp,

604 F.3d 1221, 1225 (10th Cir. 2010) (quotation omitted).

      Importantly, before we can reach the question of qualified immunity, we

must have jurisdiction to consider the claim on appeal. Our cases establish our

appellate jurisdiction only over “purely legal issues raised by the denial of

qualified immunity.” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012).

      When reviewing a decision to deny summary judgment on the basis of

qualified immunity we take the facts that the district court found were supported

by the record and construe them in the light most favorable to the plaintiff.

Johnson v. Jones, 515 U.S. 304, 313 (1995). At the summary judgment stage, “it

is generally the district court’s exclusive job to determine which facts a jury

could reasonably find from the evidence presented to it by the litigants.” Lewis,

604 F.3d at 1225. “We may review whether the set of facts identified by the

district court is sufficient to establish a violation of a clearly established

constitutional right, but we may not consider whether the district court correctly

identified the set of facts that the summary judgment record is sufficient to

prove.” Morris, 672 F.3d at 1189 (citation and quotation omitted). Then we may

“consider the ‘abstract’ legal questions [of] whether those facts suffice to show a

violation of law and whether that law was clearly established at the time of the

alleged violation.” Id. (quoting Johnson, 515 U.S. at 313).

                                           -5-
       The district court here denied summary judgment determining that fact

issues remained on Allen’s constitutional claims. We do not have jurisdiction to

consider the correctness of this finding. We have jurisdiction only to determine

whether the facts assumed by the district court are sufficient to meet the legal

standards for qualified immunity.

       Even accepting the facts as alleged, Avance tries to overcome these hurdles

by arguing they do not rise to the level of a constitutional violation or show the

denial of a clearly established constitutional right. He thus claims that both the

retaliation claim and conditions of confinement claim are invalid as a matter of

law.

       We disagree. Both the conditions of confinement and retaliation claims are

sufficiently supported by disputed facts, which if true, could overcome qualified

immunity.

       A. Conditions of Confinement

       “Although the Due Process Clause governs a pretrial detainee’s claim of

unconstitutional conditions of confinement, the Eighth Amendment standard

provides the benchmark for such claims.” Craig v. Eberly, 164 F.3d 490, 495

(10th Cir. 1998) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979); McClendon v.

City of Albuquerque, 79 F.3d 1014, 1022 (10th Cir. 1996)). Corrections officials

have the responsibility under the Eighth Amendment, and therefore the Fourteenth

Amendment, “to provide humane conditions of confinement by ensuring inmates

                                         -6-
receive the basic necessities of adequate food, clothing, shelter, and medical care

and by taking reasonable measures to guarantee the inmates’ safety.” Barney v.

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).

      We apply a two-part test in evaluating conditions of confinement claims.

“To hold a jailer personally liable for violating an inmate’s right to humane

conditions of confinement, a plaintiff must satisfy two requirements, consisting of

an objective and subjective component.” Craig, 164 F.3d at 495. “The objective

component requires that the alleged deprivation be sufficiently serious,” and

“[t]he subjective component requires the jail official to have a sufficiently

culpable state of mind.” Id. (quotation omitted).

      The failure to provide basic necessities, if sufficiently prolonged and

severe, can satisfy the objective prong of this test. Mitchell v. Maynard, 80 F.3d

1433 (10th Cir. 1996). “This inquiry turns not only on the severity of the alleged

deprivations, but also on their duration.” Craig, 164 F.3d at 495. “[I]n

determining whether a pretrial detainee has sufficiently satisfied the Eighth

Amendment standard, it is particularly important to develop an adequate record

on factual disputes related to the seriousness and length of the alleged

deprivations, for these are essential elements of a conditions of confinement

claim.” Id. at 496. “The difference between enduring certain harsh conditions for

seven weeks versus six months may be constitutionally significant.” Id.




                                         -7-
      There is no bright line. For example, we have found that 24 hours was too

long to deprive a prisoner of food and water while conducting an inter-prison

transfer, Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010); or that three days

is too long to leave a prisoner in a cell covered in human feces, McBride v. Deer,

240 F.3d 1287, 1292 (10th Cir. 2001). By contrast, six hours is not too long to

spend barefoot in a cell with no toilet. Ledbetter v. City of Topeka, 318 F.3d

1183 (10th Cir. 2003).

      Avance argues that the facts are less severe than those assumed by the

district court. But at this stage of the proceedings, assuming the truth of his

allegations, Allen has stated sufficient facts to satisfy both the objective and

subjective components of his claim. Morris, 672 F.3d at 1189.

      First, as the district court recognized, under Allen’s version of events he

was placed in a holding cell for two periods of time—one seven days, and the

other four days. During those times, he was deprived of bedding materials,

including a mattress and blankets. Avance’s orders also can be construed to

require prison staff to deny him access to towels and basic toiletries, including

toilet paper, toothpaste, and a toothbrush. The cell had standing water on its floor

during at least part of Allen’s stay. Allen further claims Avance denied him legal

papers, personal property, access to the commissary and visitation.

      Second, the subjective element is met. The prison incident reports

document that Avance ordered Allen placed in the observation cell and specified

                                          -8-
that he should not receive basic necessities. Together, these facts, if found by the

jury, could support a constitutional violation.

      Having satisfied the requirement that the assumed facts may support a

constitutional violation of his right to be free from cruel and unusual punishment,

Allen still must show that the constitutional right was clearly established at the

time of the challenged conduct. Reichle v. Howards, 132 S. Ct. 2088, 2093

(2012). “To be clearly established, a right must be sufficiently clear ‘that every

reasonable official would have understood that what he is doing violates that

right.’” Id. (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2078 (2011)).

      That standard is met here. Under Supreme Court and Tenth Circuit law it is

well settled that prisoners cannot be denied access to basic necessities of life for

substantial periods. As we recognized in Mitchell v. Maynard, when a prisoner is

“provided no mattress, blankets or bedding of any kind, . . . not allowed to leave

his cell for exercise, not provided with writing utensils, not provided with

adequate ventilation, . . . and only sometimes allowed minimal amounts of toilet

paper” and “[t]hese conditions supposedly lasted for a period of days, weeks and

months” this could constitute a violation of the prisoner’s right to be free of cruel

and unusual punishments. Mitchell, 80 F.3d at 1443. “[A] state must provide

within such living space reasonably adequate ventilation, sanitation, bedding,

hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).”

Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980). See also McBride, 240

                                          -9-
F.3d at 1291 (“Under the Eighth Amendment, jail officials must provide humane

conditions of confinement by ensuring inmates receive the basic necessities of

adequate food, clothing, shelter, and medical care and by taking reasonable

measures to guarantee the inmates’ safety.”).

      In sum, we agree with the district court fact disputes preclude a finding of

qualified immunity on summary judgment.

      B. Retaliation

      Avance also argues Allen’s retaliation claim fails as a matter of law. Allen

alleges that Avance placed him in the observation cell in retaliation for his filing

grievances protesting jail policies and conditions.

      “‘[P]rison officials may not retaliate against or harass an inmate because of

the inmate’s exercise of his’ constitutional rights.” Peterson v. Shanks, 149 F.3d

1140, 1144 (10th Cir. 1998) (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th

Cir.1990)). In particular, we have found that officials may not retaliate against

prisoners for filing administrative grievances. Williams v. Meese, 926 F.2d 994,

998 (10th Cir. 1991). But “an inmate is not inoculated from the normal

conditions of confinement experienced by convicted felons serving time in prison

merely because he has engaged in protected activity.” Peterson, 149 F.3d at 1144.

      Allen must allege three elements to show a First Amendment retaliation

claim: “(1) that the plaintiff was engaged in constitutionally protected activity;

(2) that the defendant’s actions caused the plaintiff to suffer an injury that would

                                        -10-
chill a person of ordinary firmness from continuing to engage in that activity; and

(3) that the defendant’s adverse action was substantially motivated as a response

to the plaintiff’s exercise of constitutionally protected conduct.” Shero v. City of

Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

      The first two prongs of this test are easily met here. Allen filed a prison

grievance, which our cases have held are constitutionally protected activity. Gee

v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010); Penrod v. Zavaras, 94 F.3d

1399, 1404–05 (10th Cir. 1996). And, as discussed above, Allen has alleged

sufficient facts to establish an Eighth Amendment claim. The prospect of

punishment severe enough to satisfy the Eighth Amendment is sufficient to “chill

a person of ordinary firmness” from exercising his constitutional rights.

      The third prong requires the plaintiff to allege specific facts that, if

credited, establish that “but for” the defendant’s improper retaliatory motive “the

incidents to which he refers, including the disciplinary action, would not have

taken place.” Peterson, 149 F.3d at 1144. Allen must therefore show that

Avance would not have placed him in the observation cell if he had not attempted

to file and filed the grievances.

      Avance claims he was responding to Allen’s disruptive behavior and not to

Allen’s protected activities. But the district court found, and we agree, Allen

alleged sufficient facts, with support in the record, to create a genuine question of

material fact about Avance’s motivation for placing Allen in the observation cell.

                                         -11-
       Our cases allow an inference of whether the defendant’s response was

“substantially motivated” by protected conduct where evidence showed (1) the

defendants were aware of the protected activity; (2) the plaintiff directed his

complaint to the defendants’ actions; and (3) the alleged retaliatory act “was in

close temporal proximity to the protected activity.” Gee, 627 F.3d at 1189. All

three of these factors were present here, along with other facts suggesting

causation.

       The district court found it was possible to infer causation from the fact that

Avance ordered Allen into the observation cell on the same day he protested the

cancellation of visitation. The court also credited Allen’s testimony that when he

did file additional grievances after his release from the observation cell, Avance

responded, “you don’t know a damn thing about the rules and you don’t run a

[f***ing] thing at this jail.” R., Vol. 2 at 529. The court found the fact that when

Avance placed Allen to the observation cell the second time he specified that no

visitors would be allowed, after Allen had complained about visitation policy.

Finally, the evidence shows Avance was aware of Allen’s activities and that he

personally made the decision to put him in the observation cell with severe

restrictions. Allen has alleged sufficient facts to support an inference of

retaliation.

       The constitutional right to be free from retaliation for the exercise of first

amendment rights was also clearly established. It is well settled that prisoners

                                         -12-
cannot be retaliated against when they exercise their First Amendment rights.

Smith, 899 F.2d at 947–48; see also, Gee, 627 F.3d at 1189 (“It is well-settled

that prison officials may not retaliate against or harass an inmate because of the

inmate’s exercise of his right of access to the courts.”); Fogle v. Pierson, 435

F.3d 1252, 1264 (10th Cir. 2006) (“[I]f in fact DOC officials retaliated against

Fogle based on his filing administrative grievances, they may be liable for a

violation of his constitutional rights.”); Peterson, 149 F.3d at 1144 (“We have

held that prison officials may not retaliate against or harass an inmate because of

the inmate’s exercise of his constitutional rights.”); Penrod, 94 F.3d at 1404–05

(“[I]t is well established that prison officials . . . may not harass or retaliate

against an inmate for exercising his right . . . to petition the Government for

redress of . . . grievances.”).

       In sum, Allen has alleged sufficient facts that a jury could find Avance

violated a clearly established constitutional right to be free from retaliation for

filing prison grievances.

                                  III. Conclusion

       For the reasons stated above, we affirm the district court.

       AFFIRMED.

                                                  ENTERED FOR THE COURT

                                                  Timothy M. Tymkovich
                                                  Circuit Judge


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