     Case: 12-10844       Document: 00512395463         Page: 1     Date Filed: 10/03/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                                                               October 3, 2013
                                       No. 12-10844
                                                                                Lyle W. Cayce
                                                                                     Clerk
DESMOND S. LOTT; THOMAS F. MILLS; MAURICE BUCHANAN;
ROBERT EDWARD MIZELL; ALAN E. HARWOOD; ERIC RICHARD
LONG; MORGAN E. WINDRIX; BILLY RAY THOMPSON; DENNIS BRUCE
HAMMONS; JAMES HUTSON; AUZIO HEWLETT; DEMETRIUS NASH;
JOHN LAPLANTE; STEVE R. HICKMAN; ALRICK THOMAS; DEWAYNE
BRADLEY; BENJAMIN CAHAFER; MICHAEL FLANAGAN; TIMOTHY D.
SMITH; MOSHE LEICHNER; PAUL PETER SWEHLA; MICHAEL
WESTLEY DEVER; ANDRE L. PERKINS; ELISHA MAYE,

                                                  Plaintiffs - Appellants,
v.

K. EDENFIELD, Warden; HARLEY G. LAPPIN, Director; ERIC HOLDER,
Attorney General; UNITED STATES OF AMERICA,

                                                  Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:09-CV-235


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       The plaintiffs, twenty-three men currently or formerly incarcerated at the
Federal Correctional Institution (“FCI”) in Big Spring, Texas, brought a Bivens


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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action seeking damages from three federal officials: Karen Edenfield, the warden
of FCI Big Spring; Harley G. Lappin, the director of the Federal Bureau of
Prisons (“BOP”); and Eric Holder, the Attorney General of the United States.1
The plaintiffs allege that the defendants failed to correct numerous
unconstitutional conditions at FCI Big Spring. The defendants filed a motion to
dismiss the plaintiffs’ claims for several reasons, which the district court
granted. The plaintiffs now appeal. Because the complaint fails to plead
sufficient facts to establish that the defendants were deliberately indifferent to
any clearly established rights, the defendants are entitled to qualified immunity.
Accordingly, we AFFIRM the judgment of the district court.
                                     BACKGROUND
      In 2009 and 2010, twenty-four prisoners2 incarcerated at FCI Big Spring
filed pro se complaints in the Northern District of Texas. The prisoners alleged
that they were subjected to cruel and unusual punishment as a result of
overcrowding at the prison, and sought injunctive relief as well as damages. The
district court consolidated the cases and appointed three volunteer attorneys to
represent the plaintiffs. The plaintiffs then filed an amended complaint against
Edenfield, Lappin, Holder, and the United States.
      The complaint alleges that the prison, which has a rated capacity of 891
inmates, housed 1,420 inmates at the time of filing. The complaint alleges that
inmates at FCI Big Spring were subjected to the following inhumane conditions:
      - an overloaded sewage system that regularly backed up into the
      bathrooms, exposing inmates to unsanitary conditions;


      1
         Edenfield is no longer the warden of FCI Big Spring, and Lappin is no longer the
director of the BOP. Additionally, although the United States was named as a defendant in
the plaintiffs’ suit, the present appeal concerns only the Bivens claims against the three
named officials.
      2
          One of the prisoners later withdrew from the suit and is not involved in the present
appeal.

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      - lack of access to purified drinking water when the inmates were
      confined to their rooms, which required them to drink allegedly
      dangerous tap water from the sinks during those times;
      - small and inadequately staffed medical facilities, resulting in
      excessive delays in receiving medical treatment;
      - inadequate maintenance and ventilation, resulting in mold
      growing in inmate living areas;
      - inadequate living space;
      - an inadequate kitchen and cafeteria, resulting in long waits at
      meal times, insufficient food to properly feed all inmates,
      inadequately cleaned trays and utensils, and use of food not fit for
      human consumption;
      - a commissary that frequently lacked necessities such as
      toothpaste, toothbrushes, shampoo, and soap;
      - insufficient counseling facilities and counselors to provide inmates
      with required treatment; and
      - a library that was overcrowded and insufficient for the number of
      inmates currently housed at the prison.
The complaint alleges that these conditions, which “pose a substantial risk of
serious harm to Plaintiffs and all other inmates at FCI Big Spring,” violated the
Eighth Amendment’s prohibition against cruel and unusual punishment.
      The complaint alleges that Edenfield, as warden, was aware of the
overcrowding at FCI Big Spring and the health hazards it posed. The complaint
states that many of the plaintiffs filed administrative grievances concerning the
problems described above, and alleges that Edenfield “no doubt” knew about
these problems. The complaint alleges, however, that Edenfield took no steps
to remediate any of these conditions.       The complaint further alleges that
“Defendants Lappin and Holder, as the governmental authorities charged with
oversight of the United States Bureau of Prisons and FCI Big Spring, [we]re also
aware of the overcrowded conditions at FCI Big Spring and the health threats”
that they caused. Finally, the complaint alleges that the defendants, despite


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                                  No. 12-10844

being aware of these problems and the potential for more serious problems, had
been deliberately indifferent and had done nothing to abate the problems.
      The complaint requests that the district court certify a class of all current
and former inmates of FCI Big Spring and enter an injunction compelling the
defendants to reduce the inmate population at the prison and to remedy the
conditions described above. The complaint also requests money damages and all
other relief to which the plaintiffs are entitled.
      The defendants moved to dismiss the claims of twenty of the plaintiffs for
failure to exhaust administrative remedies; these motions were granted by the
district court. The defendants also moved to dismiss all individual capacity
claims against them based on qualified immunity. The defendants argued that
the complaint did not allege facts sufficient to show the personal involvement of
any defendant in any alleged constitutional violation. The defendants further
argued that the allegations, accepted as true, did not constitute a violation of the
Eighth Amendment. The district court granted the defendants’ motion “for
essentially the reasons argued by the Defendants on pages 8–23 of their well-
reasoned Motion,” dismissing the individual capacity claims without prejudice.
The claims for injunctive relief were not dismissed. However, the district court
entered final judgment on the dismissed claims pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure. The plaintiffs now appeal, arguing that they
adequately pleaded violations of clearly established Eighth Amendment rights
sufficient to overcome qualified immunity. The plaintiffs further argue that the
district court should have applied the doctrine of vicarious exhaustion as to the
twenty plaintiffs who did not personally exhaust administrative remedies.
                                 DISCUSSION
      The district court’s ruling on a Rule 12(c) motion for judgment on the
pleadings is reviewed de novo. Gentilello v. Rege, 627 F.3d 540, 543 (5th Cir.
2010) (citation omitted). As with a Rule 12(b)(6) motion to dismiss, the question

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is whether, viewed in the light most favorable to the plaintiffs, the complaint
states a valid claim for relief. Id. at 543–44 (citations omitted). “To avoid
dismissal, a plaintiff must plead sufficient facts to ‘state a claim to relief that is
plausible on its face.’” Id. at 544 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).
      Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
“established that the victims of a constitutional violation by a federal agent have
a right to recover damages against the official in federal court despite the
absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14,
18 (1980). “This implied right of action only applies against the individual
[officials] in their individual capacities.” Williamson v. U.S. Dep’t of Agric., 815
F.2d 368, 380 (5th Cir. 1987). A federal official is entitled to qualified immunity
unless the allegations in the complaint establish a violation of a constitutional
right that was clearly established at the time of the alleged misconduct.
Gentilello, 627 F.3d at 544 (citation omitted).
      The Eighth Amendment requires that prison officials “provide humane
conditions of confinement”; specifically, “prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quotation omitted). To state an Eighth
Amendment claim based on prison conditions, a plaintiff must show a
sufficiently serious deprivation, and must show that the relevant official or
officials acted with deliberate indifference to inmate health or safety. Herman
v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001) (citations omitted). “Deliberate
indifference” means that the officials “(1) were aware of facts from which an
inference of excessive risk to the prisoner’s health or safety could be drawn and

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(2) that they actually drew an inference that such potential for harm existed.”
Id. (quotation omitted).3 But “prison officials who actually knew of a substantial
risk to inmate health or safety may be found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not averted.” Farmer,
511 U.S. at 844. In other words, “prison officials who act reasonably cannot be
found liable under the Cruel and Unusual Punishments Clause.” Id. at 845.
       Even if the actions (or inaction) of the defendants did in fact violate the
constitutional rights of the plaintiffs, qualified immunity shields them from
personal liability unless these rights were “clearly established.” Hope v. Pelzer,
536 U.S. 730, 739 (2002) (citation omitted). “For a constitutional right to be
clearly established, its contours must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.”                         Id.
(quotation omitted). “The qualified immunity standard gives ample room for
mistaken judgments by protecting all but the plainly incompetent or those who
knowingly violate the law.”            Hunter v. Bryant, 502 U.S. 224, 229 (1991)
(quotations omitted).
       The complaint fails to adequately allege that either Lappin or Holder had
knowledge of the alleged unconstitutional conditions at FCI Big Spring. The
complaint does not recite a single fact that would establish that either Lappin
or Holder actually received notice of the conditions. Instead, the complaint
suggests that Lappin and Holder were aware of the conditions because they are
“the governmental authorities charged with oversight of the United States
Bureau of Prisons and FCI Big Spring.”                   This is essentially a theory of


       3
         Personal liability for an official also requires that he or she be personally responsible
for the constitutional violation. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”).
Because this overlaps with the Eighth Amendment’s deliberate indifference requirement, it
is not addressed separately in this opinion.

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respondeat superior, which is not applicable in Bivens suits. See Iqbal, 556 U.S.
at 676. In the absence of any facts showing that Lappin and Holder received
notice, knowledge may not be imputed to them based on their supervisory
positions.
      Although it is a close question, we conclude that the complaint adequately
alleges knowledge on the part of Edenfield. The complaint states that many of
the plaintiffs filed administrative grievances concerning the alleged
unconstitutional conditions. These grievances, along with Edenfield’s presence
at the prison and immediate responsibility for the prison, support a plausible
inference that Edenfield actually received notice of the conditions. However,
even if Edenfield was aware of the conditions, the complaint does not include
sufficient facts to allow this court to draw the inference that she was deliberately
indifferent to the plaintiffs’ clearly established rights.
      The plaintiffs do not suggest that Edenfield personally caused the
overcrowding at FCI Big Spring or the alleged conditions related to it. Rather,
they argue that she is liable because she was aware of the conditions but failed
to address them. Relying on Farmer v. Brennan, 511 U.S. at 832, the plaintiffs
argue that the Eighth Amendment imposes a duty on prison officials to provide
humane conditions of confinement. Although this is true, Farmer requires only
that prison officials act reasonably in dealing with prison conditions that they
know to be dangerous or inhumane. Applying the doctrine of qualified immunity
in the context of deliberate indifference, we conclude that the plaintiffs must
plead facts from which we can infer that Edenfield responded to the conditions
in a way that any reasonable official in her position would understand to be
unacceptable.
      There are numerous allegations in the complaint regarding the conditions
at the prison. The plaintiffs connect every alleged inhumane condition to the
broader condition of overcrowding. At no point have the plaintiffs explained

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what Edenfield could have done to correct the overcrowding at FCI Big Spring,
either in the complaint, in subsequent briefing, or at oral argument. The
complaint alleges only that Edenfield “has taken no steps to remediate” the
conditions. Without additional facts, we are unable to draw a reasonable
inference that Edenfield is liable for the alleged harm to the plaintiffs.4
                                    CONCLUSION
       Because the complaint does not include facts establishing that Lappin and
Holder were aware of the alleged unconstitutional conditions at FCI Big Spring,
or that Edenfield responded unreasonably to the conditions, the defendants are
entitled to qualified immunity. The judgment of the district court is therefore
AFFIRMED.




       4
         Because we conclude that the plaintiffs’ claims should be dismissed for the reasons
explained above, we do not consider whether the conditions described in the complaint would
violate the plaintiffs’ Eighth Amendment rights, clearly established or otherwise. Similarly,
we do not consider whether the doctrine of vicarious exhaustion could be used to excuse the
failure of twenty plaintiffs to properly exhaust available administrative remedies.

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