                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 19-1557
                          ___________________________

                              Sam Edward Thurmond, Sr.

                           lllllllllllllllllllllPlaintiff - Appellee

                                   James Cunningham

                                 lllllllllllllllllllllPlaintiff

   Rashan Dixon; Khalan Ellington; Bobby Ray Wyles, Jr.; Terry Don Beaver;
                             Jeremy Todd Haley

                         lllllllllllllllllllllPlaintiffs - Appellees

                                              v.

     Gary Andrews, Lieutenant, Faulkner County Detention Facility; Chris
Riedmueller, Captain, Faulkner County Detention Facility (originally named as C Reedmiller)

                        lllllllllllllllllllllDefendants - Appellants

               Tim Ryals, Sheriff, Faulkner County Detention Facility

                                lllllllllllllllllllllDefendant

                                     Faulkner County

                         lllllllllllllllllllllDefendant - Appellant
                                         ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Little Rock
                                   ____________
                             Submitted: June 17, 2020
                              Filed: August 28, 2020
                                  ____________

Before LOKEN and GRASZ, Circuit Judges, and PITLYK1, District Judge.
                            ____________

GRASZ, Circuit Judge.

       Six former inmates of the Faulkner County Detention Center sued Faulkner
County, Arkansas, and two of the jail’s employees under 42 U.S.C. § 1983. They
claim their conditions of confinement were unconstitutional because of mold in and
around the jail’s shower. Both the employees and the County moved for summary
judgment. The district court found a broad right to sanitary prison conditions to be
clearly established, denied qualified immunity to the employees, and denied the
County’s summary judgment motion. Both the jail employees and the County now
appeal. The jail employees argue they are entitled to summary judgment based on
qualified immunity because the right at issue was not clearly established. And the
County argues its motion for summary judgment was appropriate because no
constitutional violation occurred. We reverse the denial of summary judgment as to
the employees concluding they were entitled to qualified immunity, and find that we
lack jurisdiction to reach the County’s appeal.

                                 I. Background

      Six former inmates at the Faulkner County Detention Center (the “jail”) allege
they were confined in unconstitutional living conditions during various periods
between 2016 and 2018. Specifically, the inmates claim a “black mold” was present


      1
       The Honorable Sarah E. Pitlyk, United States District Judge for the Eastern
District of Missouri, sitting by designation.

                                        -2-
on the walls, ceilings, floors, and shower curtains of the showers that serviced a
portion of the jail. In addition to allegations of mold, the plaintiffs also testified they
were never given any cleaning supplies beyond a mop, brush, and bucket — never
any cleaning chemicals.

       It is disputed as to when the jail became aware of mold complaints. But the
first written complaint in the record indicates that by February 2017, inmates were
submitting written complaints alleging the presence of “black mold.” And at some
point after these written complaints, the jail began utilizing the labor from Act 3092
inmates to powerwash the showers and apply a paint primer or sealer on the walls
designed to block heavy stains and odors.

       Lieutenant Gary Andrews testified that cleaning and inspections of the jail are
a part of his job. He also explained that when he inspected the showers and observed
some discoloration, he tried to use the primer/sealer to remedy the issue. According
to Andrews, the Act 309 inmates power-washed twice a week and scrubbed the
showers daily with a brush and cleaning materials. Jail Administrator Captain Chris
Riedmueller oversaw the overall operations of the jail and talked with Andrews about
the possible source of the unsightly stains in the shower.

       In June 2017, the jail hired ATOKA, Inc., a professional engineering and
environmental consulting company. ATOKA conducted a mold and indoor air
quality assessment. The ATOKA report found no aerial mold problem, but did find

       2
       “Act 309 of 1983 as amended is an inmate program operated by the Arkansas
Department of Correction. The Director of the Department of Correction signs
cooperative agreements with county and city officials for the purpose of providing
additional space for the care and custody of State inmates on a temporary basis in
detention facilities operated by counties and cities. The inmates may be used to work
in and around governmental property/projects while under supervision of the sheriff
or chief of police or designee.” Brown v. Moore, 93 F. Supp. 3d 1032, 1037 n.4
(W.D. Ark. 2015).

                                           -3-
that four of eleven surfaces tested contained a mold called Cladosporium — “a
common indoor contaminant and the most common genera, worldwide. It is
implicated as an allergen . . . .” The report concluded that the mold growth was
confined to the areas that remain wet and that there was “no widespread, building-
related mold problem.” The report also contained a list of suggestions including
sanitizing the showers with Perasan A and Perafoam (a two-product cleaning regimen
of strong, chemical cleaning materials), limiting showering to specific time periods,
and drying off surfaces after use.

       When asked, Riedmueller admitted the jail did not implement the ATOKA
report recommendations nor did it change its cleaning method. Andrews testified he
had never read the report, but was briefed on the results.

      Additionally, in preparation for the lawsuit, the inmates retained Dr. Jim
Ingram, who is board certified in Pediatrics and Allergy and Immunology. Dr.
Ingram tested each of the plaintiffs and found that only one was allergic to
Cladosporium. He also testified that a person must be allergic to a mold before that
mold would cause a person to be sick. But if a person was allergic to Cladosporium
and was exposed to it, Dr. Ingram explained, he or she could suffer “deleterious
health effects.”

       Both the individual jail employees and Faulkner County moved for summary
judgment — the individuals asserting qualified immunity and the County asserting
it had no policy or custom of constitutional violations. Defining the constitutional
right at issue broadly, the district court found the inmates’ right to sanitary prison
conditions was clearly established, and also found there were genuine disputes of
material fact as to whether Andrews and Riedmueller had violated those rights by
acting with deliberate indifference or reckless disregard. Therefore, the district court
found qualified immunity was improper, and denied summary judgment to Andrews,
Riedmueller, and Faulkner County. Andrews and Riedmueller now appeal, arguing

                                          -4-
they are entitled to qualified immunity because the conduct at issue does not violate
a clearly established constitutional right. Likewise, the County now appeals, arguing
it was also entitled to summary judgment because no constitutional violation
occurred.

                                    II. Analysis

       We review a district court’s denial of summary judgment based on qualified
immunity de novo, reviewing the record in the light most favorable to the nonmoving
parties and making all reasonable inferences in their favor. Robinson v. Hawkins, 937
F.3d 1128, 1135 (8th Cir. 2019).

        In undertaking this interlocutory review for an order denying qualified
immunity, our jurisdiction is limited. Raines v. Counseling Assocs., Inc., 883 F.3d
1071, 1074 (8th Cir. 2018). “[W]e have authority to decide the purely legal issue of
whether the facts alleged by the plaintiff are a violation of clearly established law.”
Id. (alteration in original) (quoting Franklin ex rel. Franklin v. Peterson, 878 F.3d
631, 635 (8th Cir. 2017)). “Appellate review in these circumstances is therefore
limited to ‘determin[ing] whether all of the conduct that the district court “deemed
sufficiently supported for purposes of summary judgment” violated the plaintiff’s
clearly established federal rights.’” Shannon v. Koehler, 616 F.3d 855, 861 (8th Cir.
2010) (alteration in original) (quoting Lockridge v. Bd. of Trs. of Univ. of Ark., 315
F.3d 1005, 1008 (8th Cir. 2003) (en banc)).



                             A. Individual Defendants

       “Qualified immunity shields public officials from liability for civil damages if
their conduct did not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Dillard v. O’Kelley, 961 F.3d 1048,

                                         -5-
1052 (8th Cir. 2020) (en banc) (internal quotation marks omitted). We must therefore
determine “(1) whether the facts shown by the plaintiff make out a violation of a
constiutitonal or statutory right, and (2) whether that right was clearly established at
the time of the defendant[s’] alleged misconduct.” Brown v. City of Golden Valley,
574 F.3d 491, 496 (8th Cir. 2009). We are permitted to decide which of these two
prongs of qualified immunity to analyze first. Pearson v. Callahan, 555 U.S. 223,
236 (2009). Given both our limited jurisdiction and the presence of factual disputes
in this case, we will begin and end our inquiry with the clearly established prong.

       “A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation omitted). We do not
“define clearly established law at a high level of generality.” Dillard, 961 F.3d at
1052 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). “Rather, we look for
a controlling case or a robust consensus of cases of persuasive authority. There need
not be a prior case directly on point, but ‘existing precedent must have placed the
statutory or constitutional question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)).

       While prisoners certainly have an Eighth Amendment right to sanitary prison
conditions including “reasonably adequate sanitation, personal hygiene, and laundry
privileges, particularly over a lengthy course of time,” the articulation of this broad
right does not answer whether the presence of non-toxic environmental allergens are
necessarily violative of this right. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.
1989). A more specific and particularized inquiry is necessary in order to assess
clearly established law in the context of an assertion of qualified immunity. Hamner
v. Burls, 937 F.3d 1171, 1179 (8th Cir. 2019).

       The only thing clearly established in this case is that the definition of the
asserted constiutitonal right embraced by the district court — a right to sanitary

                                          -6-
prison conditions — was impermissibly broad. See Anderson v. Creighton, 483 U.S.
635, 639 (1987) (noting that “if the test of ‘clearly established law’ were to be applied
at this level of generality, it would bear no relationship to the ‘objective legal
reasonableness’ that is the touchstone of Harlow [v. Fitzgerald, 457 U.S. 800
(1982)]”). And the finding that such a right was clearly established based on this
general definition was therefore in error.

       Because the right at issue has not been properly defined and there are genuine
disputes of material fact at play, it is not possible for us to determine whether the
individual officers committed a constitutional violation in the Faulkner County
Detention Center due to the presence of Cladosporium. To do so would require us
to delve into genuinely disputed facts beyond our jurisdiction. This is not to say that
there can never be a case in which the presence of mold or another environmental
allergen may give rise to unsanitary prison conditions that violate inmates’ Eighth
Amendment rights. Nor does it mean that truly dangerous environmental conditions
could not reach such a high level where the violation was obvious. Hope v. Pelzer,
536 U.S. 730, 738 (2002). But that is not the case here.

       Despite our limited ability to address whether a constiutitonal violation has
occurred, we can still reach the second prong of the qualified immunity analysis. A
grant of qualified immunity is inappropriate, absent an obvious violation, if the right
was not clearly established. Here there is no controlling case and no robust consensus
of persuasive authority able to place the question beyond debate.

       Neither our research nor the parties’ briefing uncovered any controlling Eighth
Circuit cases addressing prison conditions and issues related to mold or other
allergens more broadly. Instead, tangential and sparse references to mold or allergens
in our precedent arise specifically in the adequate medical care context, and not the
conditions of confinement context. Cf. Christian v. Wagner, 623 F.3d 608, 610, 612
(8th Cir. 2010) (explaining that a jury found the inmate did not have a serious medical

                                          -7-
need after alleging an adverse reaction to a cleaning product, and affirming the denial
of post-trial motions). As such, a reasonable officer could glean little to no guidance
from Eighth Circuit precedent about how to address the presence of a common mold
in the jail, especially at the levels alleged.

       Likewise, there is a dearth of persuasive authority from outside the Eighth
Circuit. Of the two published circuit-level cases, the Seventh Circuit’s decision in
Budd v. Motley is the most on point. 711 F.3d 840, 842 (7th Cir. 2013). In that case,
the inmate alleged unconstitutional conditions of confinement including the presence
of moldy toilets, but also went on to describe broken windows, rust, sinks without
running water, spider webs, and a broken heating system. Id. Because the conditions
in Faulkner County included none of these other extenuating circumstances, this case
is clearly distinguishable. See also Chandler v. Crosby, 379 F.3d 1278, 1290–91 &
n.22 (11th Cir. 2004) (defining the Eighth Amendment inquiry in a case involving
“heat and ventilation” in a Florida prison specifically rather than as a generic prison
condition case).

       In short, we have not identified either “controlling authority” or a “robust
consensus of persuasive authority” clearly establishing a right to be free from
Cladosporium, mold, or other allergens in the prison context at the levels alleged
here. The right in question, even if properly defined, was not clearly established. As
such, a grant of qualified immunity was appropriate. We therefore reverse the district
court’s denial of summary judgment as to Andrews and Riedmueller.

                               B. County Defendant

      We now turn to Faulkner County’s appeal from the district court’s denial of its
motion for summary judgment. Unlike the individual officers considered above,
municipalities do not enjoy qualified immunity. Mogard v. City of Milbank, 932 F.3d
1184, 1192 (8th Cir. 2019). If we had held that no constitutional violation occurred

                                          -8-
here, then Faulkner County may be correct in asserting that we would also have to
conclude that the “inextricably intertwined” claim against the County fails as a matter
of law. See Manning v. Cotton, 862 F.3d 663, 671 (8th Cir. 2017).

       But that is not our holding. Rather, we hold only that the individual jail
employees are immune from suit because their actions did not violate clearly
established law. This conclusion does not necessarily mean Faulkner County did not
violate the rights of the plaintiffs, and so the determination of liability does not flow
from the resolution of the qualified immunity issue.3 Because the determination of
Faulkner County’s liability does not “flow ineluctably from a resolution of the
qualified-immunity issue, the question of whether [the County] is liable for failing to
train its officers is not inextricably intertwined with the matter of qualified
immunity.” Ivey v. Audrain Cnty., No. 19-2507, 2020 WL 4458776, at *4 (8th Cir.
Aug. 4, 2020). As such, we lack jurisdiction to hear the County’s appeal. Id.

                                   III. Conclusion

      For the foregoing reasons, the order of the district court is reversed and the case
is remanded for proceedings consistent with this opinion.
                      ______________________________




      3
       We have held in the past that the lack of a clearly established right can, in
some instances, foreclose a plaintiff’s claim of municipal liability. See Szabla v. City
of Brooklyn Park, 486 F.3d 385, 393–94 (8th Cir. 2007) (en banc). As that issue was
neither briefed nor argued here, we leave it for initial consideration by the district
court on remand.


                                          -9-
