                             NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                        JUL 15 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

ROBERT SMITH,                                   No.    18-35263

                Plaintiff,                      D.C. No. 3:14-cv-05974-RBL

and
                                                MEMORANDUM*
CALVIN MALONE, Robert Smith, other;
GEORGE O. MITCHELL, Michael
Johnson, other; DARREN PERKINS, Glenn
Tilton, other; DARRELL KENT,

                Plaintiffs-Appellants,

 v.

STATE OF WASHINGTON,

                Defendant,

and

KEVIN QUIGLEY, Secretary, Washington
Department of Social Health Services;
JOHN CLAYTON, Assistant Secretary of
Juvenile Justice and Rehabilitation,
Washington Department of Social Services;
MARK STRONG, Chief Medical Director,
Washington State Special Commitment
Center; LESLIE SZIEBERT, Chief Medical
Director, Washington State Special

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Commitment Center; CATHI HARRIS,
Chief of Resident Life, Washington State
Special Commitment Center; CRYSTAL
MCCABE, Safety Officer, Washington State
Special Commitment Center; RICHARD
STEINBACH, Grievance Investigator,
Washington State Special Commitment
Center; TODD DUBBLE, Assistant Director
of Residential Medical, Washington Special
Commitment Center,

                Defendants-Appellees.

                  Appeal from the United States District Court
                    for the Western District of Washington
                  Ronald B. Leighton, District Judge, Presiding

                            Submitted July 12, 2019**
                              Seattle, Washington

Before: BOGGS,*** BERZON, and WATFORD, Circuit Judges.

      Residents detained at the Washington State Special Commitment Center

sued Washington State under 42 U.S.C. § 1983, alleging that state officials

violated their rights under the Eighth and Fourteenth Amendments by exposing

them to environmental tobacco smoke (“ETS”). The district court granted

summary judgment to the state, concluding that the residents’ evidence failed to



      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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show that the exposure to tobacco smoke violated the plaintiffs’ rights under either

the Eighth or Fourteenth Amendment. Because the district court analyzed the

plaintiffs’ Fourteenth Amendment claim under improper Eighth Amendment

standards, we vacate the district court’s grant of summary judgment and remand

for further proceedings consistent with this disposition.

      1. “[C]onstitutional questions regarding the conditions and circumstances of

[civil detainees’] confinement are properly addressed under the due process clause

of the Fourteenth Amendment, rather than under the Eighth Amendment’s

protection against cruel and unusual punishment.” Or. Advocacy Ctr. v. Mink, 322

F.3d 1101, 1120 (9th Cir. 2003). Our circuit has “held that court decisions

defining the constitutional rights of prisoners could be relied upon to establish a

floor for the clearly established constitutional rights of persons who are civilly

detained as sexually violent predators.” Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir.

2012) (emphasis added). But we have also emphasized that “civilly detained

persons must be afforded ‘more considerate treatment and conditions of

confinement than criminals whose conditions of confinement are designed to

punish.’” Id. (quoting Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982)).

      A pre-trial detainee bringing a Fourteenth Amendment conditions of

confinement claim must show that the conditions under which that detainee was

confined “put the plaintiff at substantial risk of suffering serious harm.” Castro v.


                                           3
County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). The

plaintiffs here are entitled to at least this level of protection. Pre-commitment

detainees are “entitled to protections at least as great as those afforded to [] civilly

committed individual[s] and at least as great as those afforded to [] individual[s]

accused but not convicted of a crime.” Jones v. Blanas, 393 F.3d 918, 932 (9th

Cir. 2004). By contrast, an individual imprisoned upon conviction cannot succeed

by showing only that a condition of confinement put him at substantial risk of

suffering serious harm; under the Eighth Amendment’s Cruel and Unusual

Punishment Clause, applicable to such individuals, the condition of confinement

must cause “suffering . . . inconsistent with contemporary standards of decency.”

Estelle v. Gamble, 429 U.S 97, 103 (1976); see also, e.g., Helling v. McKinney,

509 U.S. 25, 32–33 (1993).

      Relying on a line of Eighth Amendment cases related to environmental

tobacco smoke, including Helling, the district court here held that the plaintiffs’

Fourteenth Amendment claim failed because the plaintiffs “have not demonstrated

that they are being forced to endure an amount of ETS that violates contemporary

standards of decency.” But, as just explained, the “contemporary standards of

decency standard” does not apply to the plaintiffs’ claim. The applicable

Fourteenth Amendment standard is more generous: A condition of confinement

may not violate our contemporary standards of decency, yet still create a


                                            4
substantial risk of causing a plaintiff to suffer serious harm. See Youngberg v.

Romeo, 457 U.S. 307, 321–22 (1982). Thus, the district court erred in applying the

contemporary standards of decency standard to the plaintiffs’ Fourteenth

Amendment claim.

      2. The District Court alternatively held that even if the plaintiffs had raised a

genuine issue of fact as to their exposure to environmental tobacco smoke, they

had demonstrated that defendants acted with deliberate indifference. But, here,

again, the district court improperly imported Eighth Amendment jurisprudence into

the Fourteenth Amendment context. Although a plaintiff must establish under the

Eighth Amendment that the defendant official demonstrated “a subjective

awareness of the risk of harm,” Castro, 833 F.3d at 1068 (quoting Conn v. City of

Reno, 591 F.3d 1081, 1096 (9th Cir. 2010)), under the Fourteenth Amendment a

pre-trial detainee need only prove that the official’s conduct was “objectively

unreasonable.”1 Id. at 1071. That is, the pre-trial detainee must “prove more than

negligence but less than subjective intent—something akin to reckless disregard.”

Id. Again, the plaintiffs here at minimum were entitled to the level of protection

afforded by the Fourteenth Amendment standard for pre-trial detainees. Jones, 393



      1
        We do not address here whether the current Fourteenth Amendment
standard should apply during the qualified immunity analysis. Cf. Horton ex rel.
Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir. 2019).


                                          5
F.3d at 932. So it was error to apply the less generous Eighth Amendment

standard to the plaintiffs’ claim. See, e.g., Gordon v. County of Orange, 888 F.3d

1118, 1125 n.4 (9th Cir. 2018).

      3. We remand for further proceedings consistent with this disposition. As

the issues presented in this case are novel and non-frivolous, the district court

should seriously consider appointing counsel upon remand.

      VACATED AND REMANDED.




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