                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUL 10 2002
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 DAVID SHERWOOD,

       Plaintiff - Appellant,

 v.                                                          No. 01-6194
                                                      (D. C. No. 00-CV-466-C)
 OKLAHOMA COUNTY, a political                            (W. D. Oklahoma)
 subdivision of the State of Oklahoma, by
 and through its Commissioners;
 JOHN WHETSEL, Sheriff of Oklahoma
 County; JOHNNY DIRCK, Colonel,
 Oklahoma County Sheriff’s Office;
 CARSON MARSHALL, Major,
 Oklahoma County Sheriff’s Office;
 and CHESTER LONGACRE,
 Captain, Oklahoma County Sheriff’s
 Office, Individually and in their
 official capacity,

       Defendants - Appellees.




                                ORDER AND JUDGMENT*




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
            Before EBEL, McKAY, Circuit Judges, and SAM, Sr. District Judge.**



       This 42 U.S.C. § 1983 action challenges the decision of Defendant Oklahoma

County Sheriff John Whetsel and Defendants Oklahoma County, Johnny Dirck, Carson

Marshall, and Chester Longacre (collectively the “Defendants”) to require Plaintiff

David Sherwood to supervise inmates in the painting of various vehicles owned by

Defendant Oklahoma County. Plaintiff alleges he was forced to supervise the painting

even after Defendants were notified of the potential serious health hazards associated

with the process and type of paint being used. Plaintiff asserts further that Defendants

failed to provide proper equipment to ensure the painting could be done safely, and that

on prior occasions the Oklahoma County Department of Health had stopped Defendants

from painting due to lack of proper safety equipment. As a result of the painting, Plaintiff

alleges he suffered serious harm.

       Plaintiff claims that Defendants are liable under § 1983 for abusing their power

and thereby violating his substantive due process rights by recklessly and/or intentionally

exposing him to an unreasonable risk of harm. Plaintiff claims Defendants’ actions are

sufficient to meet the shock the contemporary conscience standard applied to substantive




       **
         The Honorable David Sam, Senior Judge, United States District Court for the
District of Utah, sitting by designation.

                                            -2-
due process claims. The district court rejected Plaintiff’s claims and granted Defendants

summary judgment, holding that Plaintiff failed to demonstrate a constitutional violation.

                                   I. BACKGROUND

       Plaintiff was initially hired by the Oklahoma County Sheriff’s Office in January

1992. Sometime in 1995 Plaintiff was transferred from detention functions to the

maintenance center where his responsibilities included painting, among other things.

       Defendant John Whetsel took office as Sheriff of Oklahoma County in January

1997. Early in his administration he made a decision to have the fleet of Sheriff’s

vehicles repainted. After discussing the repainting operation with a county commissioner,

it was determined that the repainting of the fleet would be accomplished at the County’s

District 3 maintenance facility. Whetsel assigned the task of working out the plan to

Defendant Undersheriff/Colonel Johnny Dirck.

       Early in 1997, the planned District 3 painting operation was shut down for health

and safety reasons by the Oklahoma County Health and Safety Department because the

County did not have a proper spray paint booth conducive to painting vehicles.

Undersheriff Dirck discussed the shut down, and the reasons for it, with Sheriff Whetsel.

The Sheriff and Undersheriff were also put on notice at this point that the procedure was

governed by OSHA regulations.

       Nevertheless, shortly after the initial shut-down, and after determining that a

commercial repainting would cost approximately $300.00 per vehicle, the Sheriff


                                            -3-
continued his efforts to have the vehicles painted in-house. He ordered paint and

materials for the construction of a make-shift paint booth at the Sheriff’s Training Center

located in a remote, semi-rural part of Oklahoma County. Neither the Sheriff nor anyone

else involved in the construction of the paint booth discussed the issue of proper

ventilation, even though ventilation had been an issue involved in the shut-down of the

District 3 painting operation.

       The Training Center paint booth was observed by an enforcement officer of the

County Health and Safety office in April 1997. Plaintiff and another county employee

were told by the enforcement officer that the make-shift paint booth was not OSHA-

approved1. In addition, that same month, Sheriff Wetsel was personally advised in

writing by the director of the Oklahoma County Health and Safety Department that the

planned painting operation at the Sheriff’s Training Center was dangerous to the health

and safety of workers and did not comply with applicable workplace safety regulations or

environmental regulations. The Sheriff’s office responded to the notice and indicated that

they would not attempt to do any more spray painting of vehicles.



       1
          “[W]hile federal OSHA regulations do not directly apply to state agencies, they
are still binding on state agencies because they have been adopted, in whole, by the
Oklahoma Public Employees Occupational Safety and Health Administration (PEOSH)
and are mandatory workplace rules.” Appellant’s Application to Submit Supplemental
Appendix. Defendants did not oppose Appellant’s motion or this submission which
includes the quoted statement of law. Accordingly, the Court grants the
application/motion to file an additional appendix and has considered the supplemental
information in making its decision.

                                            -4-
       Despite the Sheriff’s response to the health department’s warning the previous

year, in March 1998 Defendants ordered Plaintiff Sherwood to supervise inmates in

painting the vehicles in question at the Training Center. His protests were dismissed and

Plaintiff alleges he was threatened with discharge if he did not complete the painting

project. No steps were taken by those in authority to ensure that the operation would

comply with OSHA regulations. The painting operation at the Training Center did not

have any ventilation and the workers were not given any safety equipment despite the

Sheriff’s Office having been put on notice that proper ventilation was an important issue

and despite Plaintiff’s requests for safety equipment. The paint used was highly toxic,

and Plaintiff and the inmates involved in the painting operation have suffered serious

health consequences as a result. Specifically, Plaintiff contracted occupational asthma,

difficulty in memory and concentration, and painful, uncontrollable twitching spasms, and

is disabled from working.

       Plaintiff brought this action predicated upon his substantive due process rights as

well as other pendant state law tort claims. The district court granted Defendants’ motion

for summary judgment on Plaintiff’s § 1983 claims ruling that Plaintiff had failed to

identify conduct which was shocking to the contemporary conscience and therefore had

failed to establish the existence of a Constitutional right, much less any violation of such

a right by Defendants. The district court thereafter dismissed, without discussion,




                                            -5-
Plaintiff’s pendant state claims. The district court did not discuss or rule on the issue of

qualified immunity. Plaintiff now appeals the district court’s ruling on his § 1983 claims.


                                     II. DISCUSSION

       We review “the grant of summary judgment de novo, applying the same standards

used by the district court.” Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.

1998). Since there are no material facts in dispute2, the Court proceeds to determine

whether the district court correctly applied the substantive law. See Uhlrig v. Harder, 64

F.3d 567, 571 (10th Cir. 1995) (quoting Applied Genetics Int’l, Inc. v. First Affiliated

Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

       Both the parties and the district court utilized the now-familiar shock the

conscience standard to analyze Plaintiff’s claims to determine if he had sufficiently

alleged facts which, if proven, state a substantive due process claim. Collins v. City of

Harker Heights Tex., 503 U.S. 115 (1992), offers guidance in considering the scope of

substantive due process violations. In Collins, the representative of a decedent sued the

City under § 1983 for providing an unsafe workplace when it caused a worker to enter a

sewer without adequate ventilation and the worker died as a result. The Court held that

the City did not violate the worker’s substantive due process rights, explaining that “[t]he

Due Process Clause ‘is not a guarantee against incorrect or ill-advised [government]




       2
           Aplt. App. at 246.

                                             -6-
decisions.’ Nor does it guarantee municipal employees a workplace that is free of

unreasonable risks of harm.” Id. at 129 (quoting Bishop v. Wood, 426 U.S. 341, 350

(1976)). Rather, “the Due Process Clause of the Fourteenth Amendment was intended to

prevent government ‘from abusing [its] power, or employing it as an instrument of

oppression.’” Id. at126 (quoting DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 196 (1989) (quotations omitted)). Hence, Collins held that only

government conduct that is arbitrary or conscience shocking in a constitutional sense can

form the basis for a substantive due process claim. See Collins, 503 U.S. at 116.

       Using that standard, the district court concluded that “while the conduct alleged by

Plaintiff is troublesome, it cannot be said it shocks the conscience.” Aplt. App at 261.

The district court cited and relied on Tenth Circuit authority to the effect that,

       to satisfy the ‘shock the conscience’ standard, a plaintiff must do more than
       show that the government actor intentionally or recklessly caused injury to
       the plaintiff by abusing or misusing government power. That is, the
       plaintiff must demonstrate a degree of outrageousness and a magnitude of
       potential or actual harm that is truly conscience shocking.

Id. (quoting Uhlrig, 64 F.3d at 574). The Court in Uhlrig went on to state that “[t]he level

of conduct required to satisfy this additional requirement cannot precisely be defined, but

must necessarily evolve over time from judgments as to the constitutionality of specific

government conduct.” Uhlrig, 64 F.3d at 574.

       County of Sacramento v. Lewis, 523 U.S. 833 (1998), is one such step in that

evolution and is directly relevant to Plaintiff’s claims. The issue in Sacramento was


                                             -7-
whether a police officer violates the Fourteenth Amendment’s guarantee of substantive

due process by causing death through deliberate or reckless indifference to life in a high-

speed automobile chase aimed at apprehending a suspected offender. The Court held in

such a situation that “only a purpose to cause harm unrelated to the legitimate object of

arrest” would amount to arbitrary conduct shocking to the conscience, thereby creating

substantive due process liability. Sacramento, 523 U.S. at 836.

       As a foundation for its analysis of the facts in Sacramento, the Court outlined the

development of constitutional law in this area. It is well-established that negligent

conduct is “categorically beneath the constitutional due process threshold.” See Daniels

v. Williams, 474 U.S. 327, 328 (1986) (“[T]he Due Process Clause is simply not

implicated by a negligent act of an official causing unintended loss of or injury to life,

liberty, or property.” (emphasis in original)). At the other end of the culpability spectrum

discussed in Sacramento is conduct deliberately intended to injure in some way

unjustifiable by any government interest. See Sacramento, 523 U.S. at 331 (quoting

Daniels, 474 U.S. at 331 (“Historically, this guarantee of due process has been applied to

deliberate decisions of government officials to deprive a person of life, liberty, or

property.” (emphasis in original)). Unfortunately, Plaintiff Sherwood’s claims do not fall

at either end of this culpability spectrum. Rather, his claims of reckless/deliberate

indifference fall within the middle range. Nevertheless, the Court has “recognized the

possibility that some official acts in [the middle] range may be actionable under the


                                             -8-
Fourteenth Amendment, . . .” Sacramento, 523 U.S. at 849. This is particularly so when

defendants have an opportunity to deliberate.

       [L]iability for deliberate indifference to inmate welfare rests upon the
       luxury enjoyed by prison officials of having time to make unhurried
       judgments, upon the chance for repeated reflection, largely uncomplicated
       by the pulls of competing obligations. When such extended opportunities to
       do better are teamed with protracted failure even to care, indifference is
       truly shocking. But when unforeseen circumstances demand an officer’s
       instant judgment, even precipitate recklessness fails to inch close enough to
       harmful purpose to spark the shock that implicated “the large concerns of
       the governors and the governed.”

Id. at 853 (emphasis added, citation omitted).

       In such middle-range cases, the totality of the facts in a given case, combined with

circumstance and context, become critical factors to use in evaluating behavior of

government actors that amounts to more than negligence but less than intent to harm. For

it follows that “[d]eliberate indifference that shocks in one environment may not be so

patently egregious in another, and our concern with preserving the constitutional

proportions of substantive due process demands an exact analysis of circumstances before

any abuse of power is condemned as conscience shocking.” Id. at 850.

       In comparing Defendants’ actions to the specific government conduct in the cases

cited in Sacramento, the following facts are compelling. Defendants ordered Plaintiff to

paint the vehicles using hazardous paint in a make-shift paint booth with no ventilation or

other safety equipment. Plaintiff was at risk of losing his job if he refused, despite clear

information that the painting operation was in violation of law and in violation of state


                                             -9-
and federal safety regulations that had been brought to Defendants’ attention by the

director of the Oklahoma County Health and Safety Department. His employment and his

right to work and earn a living were threatened by those in authority over him if he failed

to comply with the order from Defendants to paint the vehicles; yet, the uncontroverted

facts indicate Defendants’ deliberate indifference to Plaintiff’s health and safety put

Plaintiff at serious risk if he did comply with the order. Plaintiff was in a classic lose/lose

situation.

       These facts compel a different result than those in Collins where the plaintiff’s

allegations that failure to train and warn employees about existing, known workplace

hazards created a constitutional deprivation were unsuccessful. Collins, 503 U.S. at 115.

Plaintiff’s facts are also distinguishable from those in Sacramento where the state actors

did nothing to create the dangerous situation, they merely reacted to it under

circumstances requiring an immediate response. See Sacramento, 523 U.S. at 855. In

the case before this court, the hazardous conditions were created by the state actors who

then ordered Plaintiff to expose himself to almost certain injury or lose his job.

       Time and opportunity to deliberate are additional factors affecting the standard of

fault. See, e.g., Barrie v. Grand County, Utah, 119 F.3d 862, 867 (10th Cir. 1997);

Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (deliberately indifferent conduct is

enough to satisfy the fault requirement for due process claims based on the medical needs

of someone jailed while awaiting trial). “[J]ust as the description of the custodial prison


                                             - 10 -
situation shows how deliberate indifference can rise to a constitutionally shocking level,

so too does it suggest why indifference may well not be enough for liability in the

different circumstances of ” cases involving high speed chases or violent disturbances

like prison riots. See Sacramento, 523 U.S. at 852 (no substantive due process violation

where a police officer fulfilling legitimate government objective engages in a high speed

chase with no time or opportunity for deliberate, reflective thought, despite fatal end

results); see also Whitley v. Albers, 475 U.S. 312, 320 (1986) (in cases involving violent

prison disturbances, a deliberate indifference standard does not adequately capture the

importance of the competing obligations faced by prison officials, or convey the

appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under

pressure, and frequently without the luxury of a second chance). Hence, the standard of

fault is necessarily influenced by the state actor’s immediate circumstances. Where there

is time for thoughtful deliberation, defendants are held to a higher standard. Conversely,

where circumstances necessitate split second judgments, the Court has held a much higher

standard of fault than deliberate indifference has to be shown for liability.

       In the present case, Defendants had over a year to contemplate their actions and the

consequences of their conduct. Defendants conceived of the painting plan early in 1997

and it was eventually accomplished, despite two ordered shut-downs, in March 1998.

The undisputed evidence suggests the repeated warnings and safety communications from

all sides did little or nothing to deter Defendants from their plan to paint the vehicles. To


                                            - 11 -
the contrary, Defendants simply moved the operation to a remote part of Oklahoma

County and proceeded to order Plaintiff and the inmates to do the job without any safety

equipment or proper ventilation and without any apparent regard for Plaintiff’s safety.

       Applying the reasoning outlined in Sacramento, Plaintiff has pled facts which are

sufficient to allow the question of Defendants’ conduct to go before a jury. The law

recognizes a constitutional violation based on deliberate indifference where defendants

create a dangerous situation, enjoy the luxury of making an unhurried judgment, have the

chance for repeated reflection largely uncomplicated by competing obligations, and

nevertheless take action which at “best sanction[s], at worst intend[s]” Plaintiff’s injury.

See Eddy v. Virgin Islands Water and Power Authority, 955 F.Supp. 468, 475,

reconsidered, 961 F. Supp. 113 (D.V.I 1997) (“Although Mr. Eddy does not state that the

defendants specifically intended to injure him, he does allege that they were virtually

certain that he would suffer injury. Plaintiff further alleges that, notwithstanding this

knowledge, [defendant] ordered him to perform the work after providing him equipment

which violated numerous OSHA regulations.”). See also Sacramento, 523 U.S. at 855

(Finding of no substantive due process cause of action affected by fact that police had

done nothing to cause the high-speed driving of the suspect, nothing to cause the suspect

to flout the commonly understood law enforcement authority to control traffic, and

nothing to encourage the suspect to race through traffic at breakneck speed forcing other

drivers out of their travel lanes. Rather, the suspect’s outrageous behavior was


                                            - 12 -
instantaneous and so was the officer’s instinctive response.). Concern about Plaintiff’s

and the inmates’ welfare was not only possible, but one would think obligatory, given

Defendants’ position of authority over Plaintiff and the undisputed information given to

Defendants about the serious safety and health hazards posed by the planned painting.

Hence, the facts and circumstances presented to the Court evidence the possibility that a

reasonable jury could find Defendants’ behavior was egregious, outrageous and recklessly

indifferent to the serious consequences imposed on Plaintiff.

       Finally, the exercise of governmental power by the Defendants in the instant case

is without any reasonable justification in the service of a legitimate governmental

objective. Neither was Defendants’ judgment impeded by the pulls of competing

obligations. In the case of a high-speed police chase, the legitimate governmental

objective is apprehension of suspected criminals and the need to “show that flight from

the law is no way to freedom.” See Sacramento, 523 U.S. at 853. Defendants’

“competing interests” in the instant case pale by comparison. With time to make an

unhurried judgment and with accurate information outlining the applicable regulations

and attendant risks and dangers involved with the proposed painting operation,

Defendants placed their desire to paint old vehicles (which were not even worth spending

$300.00 a piece on) over the health, safety, and welfare of Plaintiff. Such arbitrary action

pursued without any reasonable justification makes the Defendants’ deliberate

indifference to the rights, health and welfare of the Plaintiff actionable.


                                            - 13 -
       The parties raised additional issues in connection with the motion for summary

judgment before the district court which were not addressed by the district court opinion.

Whether the individual Defendants are entitled to qualified immunity, and whether the

municipality is liable either because of its own conduct or because of the actions of

Defendants, or any of them, in their official capacity are questions the district court found

unnecessary to decide given its disposition of the constitutional question. This Court

declines to rule on those issues where the district court has not made findings in the first

instance.

       Accordingly, we reverse the judgment of the district court and remand the case for

further consideration.

                                    III. CONCLUSION

       For the reasons set forth above, the district court’s order granting Defendants’

motion for summary judgment is REVERSED and the matter is REMANDED to the

district court.



                                                     Entered for the Court



                                                     David Sam
                                                     Senior District Judge




                                            - 14 -
