                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 9, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 JOHNNY L. BASS,

          Plaintiff-Appellee,
                                                        No. 08-6168
 v.
                                                (D.C. No. 5:06-CV-00397-M)
                                                       (W.D. Okla.)
 JERRY GOODWILL,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges. **


      Jerry Goodwill, the detention officer at the Pottawatomie County Public

Safety Center (“the jail”) appeals the district court’s interlocutory order denying

his motion for summary judgment regarding the 42 U.S.C. § 1983 due

process/conditions of confinement claim brought by the plaintiff Jerry L. Bass.

Mr. Bass alleged that while he was detained at the jail, Officer Goodwill placed


      *
        This order and judgment is not binding precedent, except under the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.
      **
        After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
him in a cell with a violent inmate who proceeded to assault him. The district

court rejected Officer Goodwill’s argument that he was entitled to qualified

immunity.

      Officer Goodwill now argues that (1) the evidence is insufficient to support

Mr. Bass’s due process claim; (2) the district court committed legal error by (a)

conflating the objective and subjective prongs of the due process/conditions of

confinement claim; and (b) rejecting his contention that he is entitled to qualified

immunity because he relied on an official jail policy in placing Mr. Bass in the

cell with the inmate who committed the assault. We lack jurisdiction to consider

the first argument, and we are not persuaded by Officer Goodwill’s other

contentions. We therefore dismiss in part, affirm in part, and remand the case to

the district court for further proceedings consistent with our decision.



                                I. BACKGROUND

      Because Officer Goodwill is appealing the denial of his motion for

summary judgment, we view the record in the light most favorable to the non-

moving party—here Mr. Bass. See Fisher v. City of Las Cruces, 584 F.3d 888,

893 (10th Cir. 2009).

A. The Assault at the Jail

      On the night of June 5, 2003, police in Pottawatomie County, Oklahoma,

arrested Mr. Bass on suspicion of drunk driving and took him to the jail. That

                                         -2-
same night, police arrested two brothers, Jason and Solomon Grass. While Mr.

Bass waited in the booking area for classification, Officer Goodwill observed a

verbal confrontation in the lobby between the Grass brothers that possibly

involved Mr. Bass. Officer Goodwill placed Solomon Grass in the “H pod,” a

one-man cell, and Jason Grass in the “G pod” or drunk pod, a cell generally

reserved for intoxicated individuals, while the Grass brothers awaited their turn

for booking. There is no evidence that Jason Grass was intoxicated.

      In an attempt to relieve the booking area from overcrowding, Officer

Goodwill also placed Mr. Bass into the G pod with Jason Grass and several other

inmates. Within minutes, Jason Grass severely beat Mr. Bass. Officer Goodwill

received a call that Mr. Bass was injured in the drunk pod and requested medical

assistance. Mr. Bass was then transported to a local hospital.

      According to Officer Goodwill, Solomon and Jason Grass were arguing and

had to be separated. Officer Goodwill placed Solomon Grass in the single-man H

pod (because he was the aggressor) and Jason Grass in the G pod (to await his

turn for booking). Officer Goodwill maintains that, at the time he placed Mr.

Bass in the G pod with Jason Grass, he had no concerns that Mr. Bass was going

to be attacked.

       Mr. Bass has almost no personal knowledge of the event, in part due to his

intoxication and in part due to his significant injuries. Mr. Bass, nonetheless,

contends that Officer Goodwill knew that Jason Grass was dangerous because he

                                        -3-
was initially arrested for creating a disturbance with his brother. Mr. Bass also

cites media reports that he had had a verbal dispute with the Grass brothers

before he was placed in the drunk pod with Jason Grass. In particular, Rod

Bottoms, the director of the jail, originally reported to the media that Mr. Bass

was involved in the Grass brothers’ altercation. In subsequent deposition

testimony, Mr. Bottoms stated that further investigation revealed that the dispute

involved only the Grass brothers.

      Mr. Bass also offered a report prepared by Thomas Rosazza, an expert in

correctional management and custodial care. Mr. Rosazza summarized the

evidence and concluded that “it is my opinion that [jail] officials failed to

provide a safe environment for Mr. Bass by failing to place him in a cell where

he was safe from predatory arrestees such as Mr. Grass.” Aplt’s App. at 277.

Mr. Rosazza added, “It is also my opinion that [jail] officials failed to provide a

safe environment for Mr. Bass by not posting officers in or immediately adjacent

to the booking area so that they could hear or see and respond immediately to the

assault on Mr. Bass.” Id.

B. The District Court Proceedings

      Mr. Bass filed this 42 U.S.C. § 1983 action against the jail, Officer

Goodwill, and several other defendants. Relevant to this appeal, Mr. Bass

alleged that Officer Goodwill subjected him to cruel and unusual punishment,

thereby violating his due process rights as a pretrial detainee. In response,

                                         -4-
Officer Goodwill filed a motion for summary judgment asserting the defense of

qualified immunity.

      In denying Officer Goodwill’s motion, the district court observed that the

Due Process Clause of the Fourteenth Amendment protects pretrial detainees

from unconstitutional conditions of confinement to the same extent that the

Eighth Amendment protects convicted criminals. Aplt’s App. at 462 (Order,

filed July 31, 2008) (citing Bell v. Wolfish, 441 U.S. 520, 537 n.16 (1979)).

Unconstitutional conditions of confinement may include “violence at the hands

of other prisoners” if prison officials are deliberately indifferent to substantial

risks of serious harm. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)

(alteration omitted).

      To establish a violation of his due process rights based on the conditions

of confinement at the jail, Mr. Bass was required to establish both (1) that he

faced “a substantial risk of serious harm” (an objective inquiry), and (2) that

Officer Goodwill had “a sufficiently culpable state of mind”—“one of deliberate

indifference” to his health or safety (a subjective inquiry). Id. at 834 (internal

quotation marks and citations omitted). Before liability can be imposed, “a

prison official ‘must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the

inference.’” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quoting

Farmer, 511 U.S. at 837).

                                         -5-
      The district court found that Mr. Bass faced a substantially serious risk,

satisfying the objective component of the inquiry. The parties hotly disputed the

subjective component. Reviewing the evidence, the district court determined that

there were genuine issues of material fact as to whether Officer Goodwill had a

“sufficiently culpable state of mind.” Aplt’s App. at 464. The court explained

that “it is disputed whether defendant Goodw[i]ll heard Jason Grass make a

menacing statement toward plaintiff before placing the two together in the drunk

pod. In this regard, the Court finds that plaintiff has presented sufficient

evidence to demonstrate that defendant Goodw[i]ll appeared to be deliberately

indifferent to the substantial risk of serious harm.” Id. Thus, Officer Goodwill

was not entitled to qualified immunity on Mr. Bass’s due process/conditions of

confinement claim.


                                 II. DISCUSSION

      Officer Goodwill now appeals the district court’s ruling that he is not

entitled to qualified immunity. He argues that (1) Mr. Bass failed to present

sufficient evidence to support his due process/conditions of confinement claim;

and (2) the district court incorrectly applied the law regarding Mr. Bass’s claim

by (a) citing evidence related to the subjective prong in its discussion of the

objective prong and (b) rejecting Officer Goodwill’s contention that he is entitled




                                         -6-
to qualified immunity because he relied on an official jail policy in placing Mr.

Bass in the G pod with Jason Grass.

A. Jurisdiction

      We have only limited jurisdiction to review district court decisions

denying summary judgment on qualified immunity grounds. In particular, we

may review those decisions only if they are based on issues of law, “such as

whether the law was clearly established at the time of the alleged infraction.”

Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008); see generally

Johnson v. Jones, 515 U.S. 304, 313 (1995) (discussing the limited appellate

jurisdiction to review the denial of qualified immunity). Additionally, “[i]f the

defendant argues that [he] is entitled to qualified immunity under the plaintiff’s

version of the facts because the plaintiff has not demonstrated a violation of

clearly established law, this Court may properly exercise jurisdiction over an

interlocutory appeal.” DeAnzona v. City and County of Denver, 222 F.3d 1229,

1233 (10th Cir. 2000).

      In contrast, “[a] defendant may not immediately appeal a district court’s

order denying qualified immunity . . . merely to dispute the district court’s

conclusions that plaintiff’s claims are supported by sufficient evidence in the

record or that disputed issues of material fact exist which preclude summary

judgment.” Walker v. City of Orem, 451 F.3d 1139, 1154 (10th Cir. 2006). We

“scrupulously avoid second-guessing the district court’s determinations regarding

                                        -7-
whether [plaintiff] has presented evidence sufficient to survive summary

judgment.” Garrett v. Stratman, 254 F.3d 946, 952 (10th Cir. 2001) (quotation

omitted). “Those facts explicitly found by the district court, combined with

those that it likely assumed, . . . form the universe of facts upon which we base

our legal review of whether defendants are entitled to qualified immunity.”

Fogarty, 523 F.3d at 1154.

      Nevertheless, “[w]hen opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for purposes of ruling

on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Accordingly, even in an appeal of the denial of qualified immunity, we need not

accept the district court’s factual determinations to the extent that they are

“blatantly contradicted by the record, so that no reasonable jury could believe

[them].” Id.; see also Blossom v. Yarbrough, 429 F.3d 963, 967 (10th Cir. 2005)

(raising the possibility that a complete lack of evidence supporting the plaintiff’s

claim might involve “a jurisdictionally permissible abstract question of law that

may be resolved in a qualified immunity appeal” but concluding that the issue

need not be decided).

B. Standard of Review

      When the district court denies a motion for summary judgment in which a

defendant asserts the defense of qualified immunity, this court reviews its legal

                                         -8-
determinations de novo. Poolaw v. Marcantel, 565 F.3d 721, 728 (10th Cir.

2009). Summary judgment is warranted “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

       However, “[b]ecause of the underlying purposes of qualified immunity,

we review summary judgment orders deciding qualified immunity questions

differently from other summary judgment decisions.” Price-Cornelison v.

Brooks, 524 F.3d 1103, 1108 (10th Cir. 2008). “The doctrine of qualified

immunity shields government officials performing discretionary functions from

liability for damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (internal quotation

marks omitted).

      Thus, in order to defeat a summary judgment motion raising the qualified

immunity defense, a plaintiff “must satisfy a ‘heavy’ two-part burden,

establishing that (1) the defendant violated a constitutional or statutory right, and

(2) the right was clearly established at the time of the defendant’s unlawful

conduct.” Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir. 2007). Moreover,

for a right to be clearly established, “there must be a Supreme Court or Tenth

Circuit decision on point, or the clearly established weight of authority from

                                         -9-
other courts must have found the law to be as the plaintiff maintains.” Cortez v.

McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007) (en banc) (internal quotation

marks omitted). Officials may be on notice that their conduct violates

established law even in novel factual circumstances. Id.

C. This court lacks jurisdiction to consider Officer Goodwill’s challenges to
the sufficiency of the evidence.

         In his appellate brief, Officer Goodwill first contends that Mr. Bass

“cannot establish a constitutional violation.” See Aplt’s Br. at 10-19. The

majority of Officer Goodwill’s argument challenges the district court’s

assessment of the evidence. Thus, he argues that: “the evidence upon which the

court purportedly relied in reaching its decision does not support its ruling,”

Aplt’s Br. at 8; Mr. Bass “failed to present any evidence that Goodwill had any

actual awareness of a substantial risk of harm,” id. at 12; “a review of the expert

report upon which the district court relied reveals that it does not in any way

support the district court’s findings,” id. at 13; “there was no evidence presented

indicating that there was a menacing statement between [Jason] Grass and [Mr.

Bass],” id. at 13; “[n]either of these statements [of fellow prisoners] support [Mr.

Bass’s] claims,” id. at 16; and “[t]he record is clear that Goodwill had no notice

of an impending assault,” id. at 17. Under Supreme Court and Tenth Circuit

precedent, we lack jurisdiction to consider Officer Goodwill’s arguments on this

issue.


                                         - 10 -
       Officer Goodwill acknowledges the limitation on our jurisdiction over

district court decisions denying qualified immunity—that we cannot review “the

district court’s conclusions that plaintiff’s claims are supported by sufficient

evidence in the record or that disputed issues of material fact exist which

preclude summary judgment.” Walker, 451 F.3d at 1154. Nevertheless, he

maintains, we may consider his arguments because Mr. Bass’s claim is supported

by no evidence whatsoever. See Aplt’s Reply Br. at 3-4 (discussing Blossom,

429 F.3d at 967).

      We are not persuaded. The district court’s finding that “[Mr. Bass] has

presented sufficient evidence to demonstrate that defendant [Officer Goodwill]

appeared to be deliberately indifferent to the substantial risk of serious harm,”

Aplt’s App. at 464, is supported by evidence submitted by Mr. Bass in support of

his allegations, including (a) Mr. Bottoms’s initial statements to the media that

there was an altercation between Mr. Bass and the Grass brothers before Mr.

Bass was placed in the G pod; (b) statements by other inmates that Jason Grass

began beating on the door and yelling when he was placed in the G pod; and (c)

the report of Mr. Rosazza, the expert in correctional management and custodial

care, who concluded that “[jail] officials failed to provide a safe environment for

Mr. Bass by failing to place him in a cell where he was safe from predatory

arrestees such as Mr. Grass.” Aplt’s App. at 277. Despite Officer Goodwill’s

arguments to the contrary, we cannot say that this evidence is “blatantly

                                        - 11 -
contradicted by the record, so that no reasonable jury could believe [it].” Scott,

550 U.S. at 380. Because this court cannot reweigh the evidence in the manner

Officer Goodwill now urges, we lack jurisdiction to consider his challenges to

the sufficiency of the evidence.

D. The district court applied the correct legal standards in addressing Mr.
Bass’s conditions-of-confinement claim.

      Apart from his attacks on the district court’s factual conclusions, Officer

Goodwill argues that the district court incorrectly applied the controlling legal

standards governing his due process/conditions of confinement claim. These

arguments involve legal questions, and we therefore have jurisdiction to consider

them. See Fogarty, 523 F.3d at 1153. We hold that the district court correctly

applied the law.

      1. The court’s statements regarding the objective and subjective
      components of Mr. Bass’s claim are not grounds for reversal.

      Officer Goodwill argues that “in determining [Mr. Bass] has met the

objective component of his claim, the court referenced alleged evidence related

to whether Goodwill had actual knowledge of substantial risk.” Aplt’s Br. at 18.

Officer Goodwill cites the district court’s statement that

             plaintiff has presented a preliminary expert report which
             sufficiently illustrates a genuine issue of material fact
             concerning whether defendant Goodwill properly
             monitored prisoners under his charge, had knowledge of
             Jason Grass’s pending and past charges and Jason
             Grass’s purportedly violent behavior. Furthermore,
             because plaintiff was allegedly intoxicated, the Court

                                       - 12 -
             finds sufficient evidence that he may have been impaired
             [in] his ability to defend himself when placed in the drunk
             pod with Jason Grass. Therefore, plaintiff has met the
             objective component of the deliberate indifference test.

Aplt’s App. at 463 (emphasis added).

      As we have noted, Mr. Bass’s claim has (1) an objective component (that

he faced “a substantial risk of serious harm,” Farmer, 511 U.S. at 834); and (2) a

subjective component (that the government official had a sufficiently culpable

state of mind). Here, even though it refers to the “objective component,” some

of the court’s discussion does seem to address the evidence pertaining to the

subjective component of Mr. Bass’s claim (e.g., the evidence regarding Officer

Goodwill’s alleged knowledge of Jason Grass’s violent behavior).

      But Officer Goodwill does not now dispute the objective component of

Mr. Bass’s claim. Instead, he challenges the evidence regarding the subjective

component of that claim. See Aplt’s Br. at 12 (arguing that Mr. Bass “failed to

present any evidence that Goodwill had any actual awareness of a substantial

risk of harm”) (emphasis added). Accordingly, we discern no reversible error in

the district court’s discussion of evidence related to the subjective component in

concluding that Mr. Bass “has met the objective component of the deliberate

indifference test.” Id.

      2. Officer Goodwill’s alleged reliance on official policy does not
      entitle him to qualified immunity.




                                       - 13 -
      As we have noted, the doctrine of qualified immunity “shields government

officials performing discretionary functions from liability for damages insofar as

their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Boles, 486 F.3d at

1180 (internal quotation marks omitted). Thus, absent exceptional

circumstances, a defendant will not ordinarily be entitled to summary judgment

on qualified immunity grounds if the plaintiff establishes that (1) the defendant

violated a constitutional or statutory right and (2) the right was clearly

established at the time of the defendant’s unlawful conduct. Mecham, 500 F.3d

at 1204.

      Nevertheless, in certain instances, qualified immunity may be warranted

even if a defendant violates a clearly established constitutional right. See

Roska v. Peterson, 328 F.3d 1230, 1251-52 (10th Cir. 2003) (observing that

when a right is clearly established, “a defendant should only rarely be able to

succeed with a qualified immunity defense”) (internal quotation marks omitted).

“The circumstances must be such that the defendant was so prevented from

knowing that his actions were unconstitutional that he should not be imputed

with knowledge of a clearly established right.” Id. (internal quotation marks

omitted).

      For example, an officer’s “reliance on a state statute, regulation, or official

policy that explicitly sanctioned the conduct in question may absolve the officer

                                        - 14 -
from knowing that his conduct was unlawful.” Kay v. Bemis, 500 F.3d 1214,

1221 n.6 (10th Cir. 2007) (emphasis added) (internal quotation marks omitted).

However, an officer’s reliance on those authorities is only “a factor which

militates in favor of the conclusion that a reasonable official would find that

conduct constitutional.” Roska, 328 F.3d at 1252. An authorizing statute,

regulation, or policy does not render the officer’s conduct reasonable per se. Id.

      Here, Officer Goodwill argues that his actions were reasonable because he

relied upon the jail’s unwritten policy directing officials to place intoxicated

inmates with non-intoxicated inmates when the intake area became too crowded

“unless the detention officer felt it could not be safely accomplished.” Aplt’s Br.

at 5 (citing Aplt’s App. at 66-67). The only evidence he offers as to this policy

is his own deposition. There, he stated that the jail’s practice was to place

intoxicated and non-intoxicated inmates together. See Aplt’s App. at 67. In

effect, he now maintains that the policy “prevented [him] from knowing that his

actions were unconstitutional.” Roska, 328 F.3d at 1252 (internal quotation

marks omitted).

      The decisions cited by Officer Goodwill do not suggest that a defendant

may be entitled to qualified immunity based only upon his own testimony about

the terms of an alleged official policy. See Kay, 500 F.3d at 1221 n.6 (discussing

“prison regulations” but providing no indication that the terms of such

regulations could be established merely by an officer’s testimony); Lawrence v.

                                        - 15 -
Reed, 406 F.3d 1224, 1231 (10th Cir. 2005) (stating that “reliance on a state

statute, regulation, or official policy that explicitly sanctioned the conduct in

question may absolve the officer from knowing that his conduct was unlawful”)

(internal quotation marks and alteration omitted); Roska, 328 F.3d at 1252-53

(discussing reliance on a state statute). Because the qualified immunity inquiry

is an objective one, see Poolaw, 565 F.3d at 735, we doubt that a defendant’s

own testimony, standing alone, could be sufficient to establish qualified

immunity in these circumstances.

          In any event, the official policy that Officer Goodwill describes does not

explicitly authorize his alleged conduct. According to Officer Goodwill, jail

policy allowed placement of intoxicated inmates with non-intoxicated ones when

it could be accomplished in a safe manner. Aplt’s Br. at 5 (citing Aplt’s App. at

66-67). The district court found evidence to support Mr. Bass’s contention that

Officer Goodwill was deliberately indifferent to the fact that it was unsafe to

place Mr. Bass and Jason Grass together. Therefore, the unwritten policy, by

Officer Goodwill’s own formulation, did not authorize his conduct, and he is not

entitled to qualified immunity because he relied upon it. 1


      1
         We also note that the alleged unwritten policy appears inconsistent with
the Oklahoma State Department of Health Standards regarding segregation of
prisoners. Okla. Admin. Code § 310:670-5-5(5) (“Prisoners who are intoxicated
or under the influence of a controlled substance shall be housed separately from
other prisoners until such time as the medical authority or the jail administrator
                                                                       (continued...)

                                          - 16 -
                                 III. CONCLUSION

          For the reasons set forth above, we lack jurisdiction to consider Officer

Goodwill’s challenges to the sufficiency of the evidence. As to Officer

Goodwill’s other arguments, we conclude that the district court properly applied

the applicable law.

          We therefore DISMISS in part, AFFIRM in part, and REMAND the case

for proceedings consistent with this opinion. 2



                                   Entered for the Court,

                                   Robert Henry
                                   Chief Judge


          1
       (...continued)
determines their suitability for placement into general population or other
appropriate housing.”).

      2
         Mr. Bass also asks us to “award attorney fees and costs, and for any and
all further relief to which he may be entitled.” Aple’s Br. at 37. Because Mr.
Bass has only prevailed on this interlocutory appeal, he is not yet a “prevailing
party” entitled to attorneys fees under the statute. See Hewitt v. Helms, 482 U.S.
755, 760 (1987) (holding that “a plaintiff [must] receive at least some relief on
the merits of his claim before he can be said to prevail [under 42 U.S.C. §
1988]”), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472
(1995); Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir. 1994)
(explaining that “[p]laintiffs who prevail at trial in § 1983 suits and successfully
defend those judgments on appeal are entitled to recover attorneys’ fees . . . . ”)
(emphasis added). Should Mr. Bass prevail at trial, he may seek attorneys’ fees at
that point.
       With respect to costs, Mr. Bass may file with the Clerk of this court a bill
of costs, subject to Officer Goodwill’s objections. See Fed. R. App. P. 39.

                                         - 17 -
