                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 27, 2009
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                    Clerk of Court
                          FOR THE TENTH CIRCUIT


 AARON LEE BENSHOOF,

             Plaintiff–Appellee,

 v.                                                    No. 09-6044
                                               (D.C. No. 5:08-CV-000510-R)
 LEWIS LAYTON, Correctional                            (W.D. Okla.)
 Officer; ERIC MOFIELD,
 Correctional Officer; JERRY ELROD,
 Case Manager,

             Defendants–Appellants.


                          ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.



      Correctional officers Lewis Layton and Eric Mofield and case manager

John Elrod appeal the district court’s order denying their motion for summary

judgment on the basis of qualified immunity in a 42 U.S.C. § 1983 action. In the

underlying suit, Aaron Benshoof claims that the defendants subjected him to


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
unconstitutional conditions of confinement. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the denial of qualified immunity.

                                         I

      Viewed in the light most favorable to Benshoof, the record indicates that on

December 14, 2007, he was placed into a cell in the segregated housing unit at

Mack Alford Correctional Center that contained hundreds to thousands of fire

ants. That day he began suffering ant stings, which, over the next several days,

grew to number approximately two hundred. As a result, he suffered burning

pain, pus-filled blisters, swollen appendages, and nausea, and he was seen twice

for medical treatment. When he requested insecticide, he was given a clear

disinfectant that only slowed the ants. His repeated requests for a transfer to

another cell and for an insecticide were denied. On December 20, the deputy

warden received a complaint that Benshoof wrote on December 16. The deputy

warden responded by immediately providing Benshoof with the insecticide, which

ended the problem. Benshoof’s filings provide specific evidence that each of the

three defendants actually knew about the ant infestation and that he was suffering

injuries from ant stings, and yet refused to do anything to alleviate the problem.

      In a report and recommendation addressing defendants’ summary judgment

motion, the magistrate judge concluded that genuine issues of material fact

precluded summary judgment on either the objective or the subjective components

of an Eighth Amendment conditions-of-confinement claim, see Farmer v.

                                         -2-
Brennan, 511 U.S. 825, 834 (1994) (requiring a plaintiff to show “conditions

posing a substantial risk of serious harm” (objective component) and the

defendant’s “deliberate indifference to inmate health or safety” (subjective

component) to proceed with a claim that prison conditions violated the Eighth

Amendment (quotation omitted)). The magistrate judge also concluded that

qualified immunity should be denied because Benshoof alleged a violation of a

clearly established constitutional right. Engaging in de novo review, the district

court agreed there were genuine issues of material fact as to the objective and

subjective components of the Eighth Amendment claim and adopted the report

and recommendation. Defendants appeal.

                                         II

                                          A

      We first must satisfy ourselves that we have jurisdiction to hear this

interlocutory appeal. Johnson v. Martin, 195 F.3d 1208, 1213 (10th Cir. 1999).

For a collateral order to be appealable, a district court decision must:

(1) conclusively determine the disputed question; (2) resolve an important issue

completely separate from the merits of the action; and (3) be effectively

unreviewable on appeal from a final judgment. See Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978). A party is entitled to summary judgment if

evidence establishes that “there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

                                         -3-
56(c); Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1326 (10th Cir. 1999). A denial of summary judgment on the

basis of qualified immunity is immediately appealable to the extent that it

determines an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 527-30

(1985). Thus we may review both whether a constitutional right was clearly

established at the time of the alleged violation, Fogarty v. Gallegos, 527 F.3d

1147, 1153-54 (10th Cir. 2008), and whether, taking the plaintiff’s allegations as

true, the defendant violated clearly established law, see Johnson v. Martin,

195 F.3d at 1214; Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997).

However, a defendant denied qualified immunity “may not appeal a district

court’s summary judgment order insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones,

515 U.S. 304, 319-20 (1995).

      The defendants contend that at trial Benshoof will not be able to prove

either the objective or the subjective components of an Eighth Amendment

violation. To the extent the defendants argue that Benshoof has failed to produce

sufficient evidence to raise a genuine issue of material fact for trial, we may not

hear them. See id. at 313, 319-20. To the extent that they argue that the

plaintiff’s allegations, taken as true, fail to establish the objective and subjective

components of an Eighth Amendment violation, we may review the decision of

the district court. See Johnson v. Martin, 195 F.3d at 1214.

                                           -4-
      The defendants further argue that any constitutional right allegedly violated

was not clearly established as of December 2007. We do have jurisdiction to

consider this purely legal argument. See Garrett v. Stratman, 254 F.3d 946,

951-52 & n.8 (10th Cir. 2001); Johnson v. Martin, 195 F.3d at 1214-15.

                                         B

      We first consider the defendants’ argument that Benshoof has failed to

produced sufficient evidence to establish the objective component of his Eighth

Amendment claim. We review de novo the district court’s resolution of qualified

immunity issues, Foote, 118 F.3d at 1424, looking only to whether Benshoof’s

version of the facts would allow a reasonable fact finder to conclude the

defendants violated his Eighth Amendment rights, Johnson v. Martin, 195 F.3d at

1211, 1214.

      To establish a violation of his Eighth Amendment rights, an inmate must

first establish the “objective component” — that “he [was] incarcerated under

conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834.

Liability for a violation of the Eighth Amendment requires “more than ordinary

lack of due care for the prisoner’s interests or safety.” Whitley v. Albers,

475 U.S. 312, 319 (1986).

      Benshoof has alleged facts that, if true, establish the objective component

of an Eighth Amendment violation. Construed in the light most favorable to

Benshoof, the material facts include that Benshoof was placed in a cell infested

                                         -5-
with thousands of fire ants. The fire ants stung him approximately 200 times, and

the stings caused burning, sizzling pain, pus-filled blisters, and swollen

appendages. Moreover, Benshoof was forced to remain in the cell with the

stinging fire ants for six days. If true, these allegations establish that Benshoof

was incarcerated under conditions posing a substantial risk of serious harm.

                                          C

      The defendants next contend that Benshoof has failed to allege sufficient

facts to establish the subjective component of an Eighth Amendment violation.

Again, we review the district court’s decision de novo. Foote, 118 F.3d at 1424.

We must accept Benshoof’s version of the facts and grant summary judgment only

if he fails to allege facts that would allow a reasonable fact finder to conclude

that the defendants violated his rights under the Eighth Amendment. Farmer,

511 U.S. at 834. In order to satisfy the subjective prong of an Eighth Amendment

violation, an inmate must establish that the prison official had a “sufficiently

culpable state of mind.” Id. (quotation omitted). In conditions-of-confinement

cases, the inmate must establish “deliberate indifference” to inmate health or

safety. Id. Deliberate indifference requires that “the official . . . 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.

      Benshoof has alleged sufficient facts to allow a reasonable fact finder to

conclude that the defendants were deliberately indifferent to the substantial risk

                                          -6-
of harm he faced. Benshoof has produced evidence that he informed Layton of

the infestation; that he showed Mofield some of the fire ant bites and alerted the

medical unit; that the medical unit treated him for 15-20 bites on his hand and

20-25 on his foot; that he asked Mofield for transfer to a new cell or access to an

ant-killing insecticide and was denied; that Elrod observed Benshoof’s injuries

but did not transfer him; and that he remained in the cell for six days before

receiving the ant-killing insecticide. A reasonable fact finder could conclude

from these facts that the prison officials were aware of a substantial risk of

serious harm to Benshoof but purposefully chose not to provide the requested

relief.

                                           D

          Mofield, Layton, and Elrod argue that, even if they did violate Benshoof’s

Eighth Amendment rights, they are entitled to qualified immunity because the

constitutional right was not clearly established when they acted. “The doctrine of

qualified immunity protects public officials performing discretionary functions

unless their conduct violates clearly established statutory or constitutional rights

of which a reasonable person would have known.” Johnson v. Martin, 195 F.3d

at 1216 (quotation omitted). “Ordinarily, in order for the law to be clearly

established, there must be a Supreme Court or Tenth Circuit decision on point, or

the clearly established weight of authority from other courts must have found the

law to be as the plaintiff maintains.” Medina v. City & County of Denver,

                                           -7-
960 F.2d 1493, 1498 (10th Cir. 1992). We review de novo the district court’s

determination of the state of the law in December 2007. See Anderson v. Blake,

469 F.3d 910, 913 (10th Cir. 2006).

      It does not appear that this court has considered a case in which an inmate

was placed in a cell with hundreds of fire ants and, while suffering numerous

painful stings, was refused a transfer and effective means of eradicating the pests

for six days. But such a high degree of factual similarity is not required to

conclude that the law was clearly established:

       To be clearly established, the contours of a right must be
       ‘sufficiently clear that a reasonable official would understand that
       what he is doing violates that right.’ . . . This means that there need
       not be precise factual correspondence between earlier cases and the
       case at hand, because ‘general statements of the law are not
       inherently incapable of giving fair and clear warning . . . .’

Id. at 913-14 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). As we have

previously explained, Hope, “shifted the qualified immunity analysis from a

scavenger hunt for prior cases with precisely the same facts toward the more

relevant inquiry of whether the law put officials on fair notice that the described

conduct was unconstitutional.” Casey v. City of Fed. Heights, 509 F.3d 1278,

1284 (10th Cir. 2007) (quotations omitted).

      It was clearly established long before 2007 that the Eighth Amendment

imposes a duty on prison officials to provide humane conditions of confinement,

including adequate shelter and reasonable safety from serious bodily harm.


                                         -8-
See Farmer, 511 U.S. at 832; cf. Rhodes v. Chapman, 452 U.S. 337, 347 (1981)

(“Conditions must not involve the wanton and unnecessary infliction of

pain . . . .”). Farmer further established that a prison official violates the Eighth

Amendment when he displays deliberate indifference to “conditions posing a

substantial risk of serious harm.” 511 U.S. at 834; see also id. at 837 (holding

that an official may be liable under the Eighth Amendment if “the official knows

of and disregards an excessive risk to inmate health or safety”). Further, to

establish deliberate indifference, “it is enough that the official acted or failed to

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

      Even earlier, this court held in Ramos v. Lamm that “a state must provide

an inmate with shelter which does not cause his degeneration or threaten his

mental and physical well being.” 639 F.2d 559, 568 (10th Cir. 1980). Thus,

prison officials must provide living space with “reasonably adequate ventilation,

sanitation, bedding, hygienic materials, and utilities.” Id. Ramos is sufficient to

put a reasonable officer on notice that it would be unconstitutional to house an

inmate in a cell containing a swarm of stinging insects and to refuse the inmate

either a transfer to another cell or any effective means of eradicating the

infestation.

      In addition, before December 2007, this court explicitly addressed the

unconstitutionality of hazardous cell conditions. See DeSpain v. Uphoff,

264 F.3d 965, 974 (10th Cir. 2001); McBride v. Deer, 240 F.3d 1287,

                                           -9-
1291-92(10th Cir. 2001). Admittedly, these cases involved prolonged exposure to

human waste rather than incarceration with pests. But they are also generally

sufficient to put a reasonable officer on notice that the Eighth Amendment

prohibits forcing an inmate to inhabit a cell with conditions presenting an obvious

health hazard. Further, both DeSpain and McBride indicate that even a short

exposure to substantially hazardous conditions can support an Eighth Amendment

claim: DeSpain involved an exposure of thirty-six hours, see 264 F.3d at 974, and

McBride, an exposure of three days, see 240 F.3d at 1291-92.

      In light of this precedent, we conclude that the constitutional prohibition

against allowing an inmate to remain in a cell rendered hazardous by pervasive

infestations of pests was clearly established in December 2007.

                                        III

      The district court’s denial of qualified immunity to defendants-appellants

on Benshoof’s Eighth Amendment claims is AFFIRMED. Any motions pending

before this court are DENIED as moot.


                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                        -10-
