                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      September 27, 2016
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
KENT G. SAVAGE,

      Plaintiff - Appellant,

v.                                                        No. 16-6083
                                                  (D.C. No. 5:15-CV-01194-HE)
MARY FALLIN, individually and in her                      (W.D. Okla.)
official capacity as Governor of the State of
Oklahoma; ROBERT PATTON,
individually and in his official capacity as
Director, Oklahoma Department of
Corrections; JASON BRYANT,
individually and in his official capacity as
Warden, James Crabtree Correctional
Center; TERRY CLINE, individually and
in his official capacity as Commissioner of
Health Department, State of Oklahoma;
ROBERT DOKE, individually and in his
official capacity as State Fire Marshall,
State of Oklahoma; JEFFREY HICKMAN,
individually and in his official capacity as
Speaker of the House, State of Oklahoma;
BRIAN BINGMAN, individually and in
his official capacity as Senate President Pro
Tem, State of Oklahoma; CLARK
JOLLEY, individually and in his official
capacity as Chairman of the Senate
Appropriations Committee, State of
Oklahoma,

      Defendants - Appellees.
                      _________________________________

                               ORDER AND JUDGMENT*

       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
                        _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Kent Savage appeals the district court’s dismissal of his 42 U.S.C. § 1983

claims on various grounds. Although we agree with the bulk of the district court’s

order, we conclude that Savage’s claims against two defendants alleging unsafe

prison conditions were prematurely dismissed and that the Governor is not entitled to

legislative immunity with respect to her alleged administrative failures. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand

for further proceedings.

                                           I

      Savage is an inmate at the medium-security James Crabtree Correctional

Center (“JCCC”) in Oklahoma. In his complaint, he claims that the defendants have

acted with deliberate indifference toward serious danger resulting from prison

overcrowding and understaffing. In particular, he alleges that only one correctional

officer is generally on duty to monitor 230 inmates housed in the open dorms in his

unit, and that only one officer—and sometimes no officer—is present during meals at

the dining hall with over 250 inmates. Savage claims that open dormitory housing is

especially dangerous because it cannot be effectively “locked down.” He claims that


ordered submitted without oral argument. 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.

                                           2
previous open spaces in his unit have been converted into bunk housing, leaving

“virtually no unencumbered space.” And he alleges that staffing shortages render the

prison unable to discipline inmates for infractions.

      Savage states that these conditions have led to endemic prisoner-on-prisoner

violence. He has been threatened with beating and robbery. Savage has witnessed

frequent inmate-on-inmate assaults in the dining hall and in open dorm housing. He

also recounts an inmate homicide at JCCC, an incident in which an inmate’s throat

was cut by a box cutter, and a large brawl involving 70 inmates. Because of

understaffing, inmates who “fear for their life” are denied protective custody. Savage

argues that the conditions place prisoners’ safety at substantial risk. He states that he

“does not want to be the tragedy” that will prompt change but that it is “only a matter

of time” before major incidents of violence occur. He claims that the conditions of

his confinement cause him to suffer sleep deprivation, nightmares, anxiety,

depression, severe headaches, and stomach problems.

      In addition to safety concerns, Savage alleges that overcrowding and

understaffing have resulted in inadequate sanitation facilities, cancelled programs,

delayed mail and laundry services, insufficient clothing provisions, rodent infestation

in the food service area, basic maintenance failures, long lines to access the Health

Services Department,1 and law library closures. Savage alleges that these issues are

not isolated to JCCC. He claims that Oklahoma’s prison system in general is

      1
        Savage filed a separate case in the district court alleging inadequate medical
care, which is not at issue in this appeal.

                                            3
operating at an average of 118 percent of capacity, although it is staffed at 67 percent

of the authorized level.

      Savage filed this suit, claiming violations of the Eighth Amendment and

intentional infliction of emotional distress against the Governor of Oklahoma (Mary

Fallin), the Director of the Oklahoma Department of Corrections (“DOC”) (Robert

Patton), the Warden of the JCCC (Jason Bryant), the State Fire Marshall (Terry

Cline), the Commissioner of the Oklahoma State Department of Health (Robert

Doke), and several state legislators (Jeffrey Hickman, Brian Bingman, and Clark

Jolley). The district court screened Savage’s complaint under 28 U.S.C. § 1915A. A

magistrate judge issued a recommendation—later adopted by the district court—

suggesting that the complaint be dismissed sua sponte.2 The court held that all

claims for damages against the defendants in their official capacities were barred by

the Eleventh Amendment, and dismissed those claims without prejudice.3 It also held

that the Governor and legislator-defendants were entitled to absolute legislative

immunity against any individual-capacity claims, and dismissed those claims with

prejudice. The court dismissed without prejudice all federal claims against the



      2
         Savage argues that he should not have been subject to the screening provision of
§ 1915A because he is not proceeding in forma pauperis. We reject this argument. See
Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000) (section 1915A applies to all
prison litigants suing a governmental entity or employee regardless of in forma pauperis
status).
      3
       Savage does not appeal the dismissal of his official-capacity claims for
monetary damages.

                                            4
remaining defendants for failure to state a claim. Having dismissed all federal

claims, it declined to exercise supplemental jurisdiction over the state law claims.

       Savage timely appealed. Although they did not appear below, we invited

defendants to submit a memorandum brief to this court and they have done so.

                                            II

                                             A

       “We review de novo a district court’s conclusion on the question of absolute

immunity.” Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). State legislators

are entitled to absolute immunity from liability under § 1983 for their legislative

activities. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998). And because “[a]bsolute

legislative immunity attaches to all actions taken in the sphere of legitimate

legislative activity,” members of the executive branch are also entitled to absolute

immunity when they are performing legislative acts. Id. at 54, 55 (quotation

omitted).

       Savage argues that the Governor and legislators have been complicit in the

overcrowding and understaffing in Oklahoma prisons by failing to properly fund

them. But choices about prison funding are “discretionary, policymaking decision[s]

implicating the budgetary priorities of the [state] and the services the [state]

provides.” Id. at 55-56. Thus, the legislator-defendants’ alleged actions “bore all the

hallmarks of traditional legislation,” id. at 55, and they are entitled to legislative

immunity.



                                             5
       The same is true with respect to Governor Fallin as to her alleged failure to

prompt the legislature to provide additional funding. See id. (executive official

entitled to absolute immunity for quintessentially legislative policymaking

decisions). However, Savage also alleges that Fallin has failed to take proper

administrative actions to reduce overcrowding, including causing delays in the

implementation of programs. Claims based on these administrative actions are not

barred by legislative immunity. See Kamplain v. Curry Cty. Bd. of Comm’rs, 159

F.3d 1248, 1252 (10th Cir. 1998) (holding actions that do “not concern the enactment

or promulgation of public policy” are not legislative in nature). We thus reverse the

district court’s dismissal of Savage’s § 1983 claim against Fallin based on her alleged

administrative failures.4

                                             B

       We review de novo the district court’s dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.

2010). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). Courts do not

impose a “probability requirement,” but the pleadings must demonstrate “more than a

       4
         The district court also stated briefly that any discretionary actions made by
the defendants were made in their official capacities, and the defendants would thus
be entitled to Eleventh Amendment immunity. But Eleventh Amendment immunity
does not apply to claims for injunctive relief. See Ellis v. Univ. of Kan. Med. Ctr.,
163 F.3d 1186, 1197 (10th Cir. 1998) (claims for prospective relief may be pursued
against state officials in either their official or individual capacities under the Ex
parte Young doctrine).
                                             6
sheer possibility that a defendant has acted unlawfully.” Id. (quotation omitted). We

construe Savage’s pro se filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

                                            1

      In weighing whether prison conditions violate the Eighth Amendment, we

“must be sensitive to the State’s interest in punishment, deterrence, and

rehabilitation, as well as the need for deference to experienced and expert prison

administrators faced with the difficult and dangerous task of housing large numbers

of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011). However, we

“must not shrink from [our] obligation to enforce the constitutional rights of all

persons, including prisoners.” Id. (quotation omitted). “No static test can exist by

which courts determine whether conditions of confinement are cruel and unusual, for

the Eighth Amendment must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.” Rhodes v. Chapman, 452

U.S. 337, 346 (1981) (quotation omitted).

      Prison conditions that are “restrictive and even harsh . . . are part of the

penalty that criminal offenders pay for their offenses against society.” Id. at 347.

But conditions of confinement violate the Eighth Amendment if they result in

“serious deprivations of basic human needs.” Id. These needs include “shelter,

sanitation, food, personal safety, and medical care.” Ramos v. Lamm, 639 F.2d 559,

566 (10th Cir. 1980). In particular, inmates have a “constitutional right to be

reasonably protected from constant threats of violence and sexual assaults from other

                                            7
inmates.” Id. at 572. To state an Eighth Amendment claim for failure to protect, “the

inmate must show that he is incarcerated under conditions posing a substantial risk of

serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

      Construing his pro se filings liberally, Savage makes two general allegations.

First, he claims that staff shortages and overcrowding have strained sanitation

facilities, food supplies, prison maintenance, and other programs. The district court

concluded that Savage’s allegations as to this sub-claim rise merely to the level of

discomfort or inconvenience, and are not sufficiently serious to support an Eighth

Amendment claim. We agree. Savage has not alleged that these problems have

deprived him “of the minimal civilized measure of life’s necessities.” Barney v.

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (quotation omitted). To the extent

Savage attempts to rely on indignities suffered by other inmates, he lacks standing to

seek redress for injuries committed against others. Swoboda v. Dubach, 992 F.2d

286, 290 (10th Cir. 1993).

      Savage also claims that the number of correctional officers overseeing inmates

is so low as to constitute a substantial risk to inmate safety. The district court

concluded this sub-claim was deficient because it relates to potential dangers posed

by overcrowded prisons, but not realized dangers which involve Savage himself. We

disagree with this reasoning.

      “That the Eighth Amendment protects against future harm to inmates is not a

novel proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Accordingly,

courts may not “deny an injunction to inmates who plainly proved an unsafe, life-

                                            8
threatening condition in their prison on the ground that nothing yet had happened to

them.” Id. Simply stated, “a remedy for unsafe conditions need not await a tragic

event.” Id.; see also Ramos, 639 F.2d at 572 (an inmate “does not need to wait until

he is actually assaulted before obtaining relief”).

      Savage discussed the assaults of other inmates in his complaint. But we do not

read the complaint as relying on injuries to those inmates, which Savage would lack

standing to do. See Swoboda, 992 F.2d at 290. Instead, it appears Savage included

these allegations to support the claim that he personally faces an unreasonable risk of

physical assault at JCCC.5 Evidence that the inmate population is “plagued with

violence and the fear of violence” may support an Eighth Amendment claim. Ramos,

639 F.2d at 572. And staffing that is insufficient to provide adequate security for

inmates and staff may also contribute to a violation. Id. at 573.

      In this regard, we conclude that Savage has met his initial pleading burden.

He alleges JCCC is plagued by inmate-on-inmate violence, and that he has been

threatened with assault. Savage further alleges that only one correctional officer is

generally on duty in his open dorm unit housing 230 prisoners, and that at most, one

officer monitors 250 inmates during mealtimes. These staffing ratios are similar to

those at issue in other cases in which courts found Eighth Amendment violations.

See Brown, 563 U.S. at 502 (“As many as 200 prisoners may live in a gymnasium,

monitored by as few as two or three correctional officers.”); Hutto v. Finney, 437


      5
        Savage’s allegations regarding violence at other facilities, however, would
not bear on Savage’s claim that he is endangered at JCCC.
                                            9
U.S. 678, 682 n.6 (1978) (“Although it had 1,000 prisoners, Cummins employed only

eight guards who were not themselves convicts.”); Coleman v. Schwarzenegger, 922

F. Supp. 2d 882, 930-31 (E.D. Cal. 2009) (describing scenario in which two officers

supervise 200 inmates as “extremely dangerous”); Ramos v. Lamm, 485 F. Supp.

122, 141 (D. Colo. 1979) (three prison employees cannot maintain security over 91

inmates housed in various locations), aff’d in relevant part Ramos, 639 F.2d 559.

      To be sure, an allegation of prison overcrowding is not per se sufficient to

support an Eighth Amendment claim. “Establishing the population at which the State

could begin to provide constitutionally adequate [conditions] . . . requires a degree of

judgment.” Brown, 563 U.S. at 538. “The inquiry involves uncertain predictions

regarding the effects of population reductions, as well as difficult determinations

regarding the capacity of prison officials to provide adequate care at various

population levels.” Id.; see also Rhodes, 452 U.S. at 348 (rejecting argument that

housing 38 percent more inmates than prison’s design capacity violated Eighth

Amendment). But Savage alleges that prison officials have made statements

acknowledging a link between staffing shortages and a high risk of prison violence.

At this preliminary phase, we conclude that Savage has plausibly pled that he is

subjected to overcrowding and staffing conditions that pose a substantial risk of

serious harm. Farmer, 511 U.S. at 834.

                                           2

      This conclusion does not end our inquiry. To hold a prison official liable for

unconstitutional prison conditions, a plaintiff must show that “the official knows of

                                           10
and disregards an excessive risk to inmate health or safety; the 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.” Id. at 837. Savage “need

not show that a prison official acted or failed to act believing that harm actually

would befall an inmate”; but he must show “that the official acted or failed to act

despite his knowledge of a substantial risk of serious harm.” Id. at 842. If a risk is

“expressly noted by prison officials in the past, and the circumstances suggest that

the defendant-official being sued had been exposed to information concerning the

risk and thus must have known about it,” then a trier of fact may find that the

defendant-official had actual knowledge of the risk. Id. at 842-43. Moreover,

because § 1983 does not impose vicarious liability, “a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676.

      We agree with the district court that Savage has not adequately pled the

subjective element of an Eighth Amendment violation as to Fire Marshall Hickman

or Commissioner of the Health Department Doke. Savage merely alleges that despite

regular inspections of the JCCC, these defendants have not taken appropriate action

to enforce the law. This allegation does not plausibly suggest that the heads of these

agencies were personally aware of conditions at JCCC giving rise to a substantial risk

that inmates would suffer serious harm.

      We reach the opposite conclusion as to Warden Bryant and DOC Director

Patton. Savage cited statements made by Patton noting that prison understaffing has

                                           11
created dangerous situations in Oklahoma. He also claims that Patton personally

made the decision to transfer inmates from county jails to DOC custody, causing

overcrowding at JCCC. As to Bryant, Savage alleges that he has failed to

appropriately discipline inmates and cites to public statements from the previous

JCCC warden decrying understaffing at the facility. See Farmer, 511 U.S. at 842

(subjective element may be satisfied by showing that problems were “longstanding,

pervasive, well-documented, or expressly noted by prison officials in the past”).

Given that deliberate indifference may be demonstrated through “circumstantial

evidence, and a factfinder may conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious,” see id. (citation omitted), we

conclude Savage has satisfied his initial pleading burden as to the subjective prong.6

                                            C

      The district court declined to exercise supplemental jurisdiction over Savage’s

state law claims.7 In their memorandum brief, defendants argue that Savage’s state law

claims are barred by the Oklahoma Governmental Tort Claims Act. We leave that


      6
         The district court did not consider whether Savage adequately alleged these
elements as to Governor Fallin. We leave that issue to the district court to address in
the first instance on remand. We similarly do not reach any other defenses or bars to
liability that may arise on remand.
      7
         Savage argues that in addition to a state law claim for intentional infliction of
emotional distress, he also advances an independent federal claim, citing Estate of
Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 851 (10th Cir. 2005). But
Estate of Trentadue merely allowed an Oklahoma state law claim for intentional
infliction of emotional distress to proceed under the Federal Tort Claims Act. Id. at
852, 855. We consider only Savage’s state-law claim.

                                           12
argument, and any other issues not considered in this order and judgment, for

consideration by the district court in the first instance.

                                              III

       The district court’s dismissal of all claims against Hickman, Bingman, and Jolley

is AFFIRMED. Its dismissal of Savage’s § 1983 claims against Cline and Doke is

AFFIRMED. And the district court’s dismissal of all official capacity claims for

damages is AFFIRMED. We REVERSE the court’s dismissal of the claims against

Governor Fallin to the extent they rest on her administrative actions. And we REVERSE

the dismissal of Savage’s § 1983 claims against Bryant and Patton. We REMAND for

further proceedings not inconsistent with this order and judgment.



                                                Entered for the Court


                                                Carlos F. Lucero
                                                Circuit Judge




                                              13
