           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 7, 2008

                                     No. 07-40284                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ROSS LYN VALIGURA,

                                                  Plaintiff–Appellee,
v.

O. MENDOZA; R. FORD; LIEUTENANT KEMPT; FRED LANGEHENNIG,

                                                  Defendants–Appellants.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:05-CV-0513


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Robert Ford, Dean Kempt, Fred Langehennig, and Oscar Mendoza,
supervisory Texas Department of Criminal Justice–Correctional Institutions
Division (TDCJ) employees, appeal the district court’s denial of their motion for
summary judgment on the grounds of qualified immunity from the 42 U.S.C.
§ 1983 suit brought by Ross Lyn Valigura. Valigura, who was an inmate
confined at a TDCJ facility, alleges appellants violated his Eighth Amendment


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-40284

right to be free from cruel and unusual punishment. We affirm in part and
dismiss the appeal in part for lack of appellate jurisdiction.
                                         I
      Valigura was incarcerated at the Garza East Unit in Beeville, Texas—a
TDCJ facility. Valigura filed this civil rights action in 2005, alleging that he was
not permitted to leave his bunk during certain lockdowns and was denied
adequate time to eat his meals in violation of his rights under the Eighth
Amendment. He further alleges that temperatures in the bunk area reached
into the nineties and hundreds due to poor ventilation and that he was not
allowed to exercise or even stretch for significant periods of time. Additionally,
Valigura contends that he was not able to use the restroom and showers without
lengthy waits, which caused him severe discomfort and his personal hygiene to
suffer.
      Appellants filed a motion for summary judgment.             The magistrate
recommended that appellants’ motion be granted with respect to Valigura’s
claims for monetary damages against appellants in their official capacity, but
denied with respect to all other claims. The district court accepted these
recommendations, including the recommendation to deny appellants’ motion for
summary judgment on the ground of qualified immunity. The district court also
dismissed Valigura’s claims for injunctive relief as moot because Valigura was
released from TDCJ custody in the period between the magistrate’s
recommendations and the district court’s adoption.
      Appellants filed an interlocutory appeal of the district court’s adverse
determination on qualified immunity. Appellants argue that the district court
erred by failing to explain with sufficient particularity the fact issues that
overcome each appellant’s entitlement to qualified immunity. Specifically,
appellants argue that they were not personally involved in the alleged
constitutional deprivations, appellants’ actions did not violate Valigura’s


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                                         No. 07-40284

constitutional rights, and Valigura suffered no more than a de minimis injury.
Appellants further argue that their actions were objectively reasonable at the
time they were taken.
                                                II
       Appellate courts ordinarily do not have jurisdiction to review a denial of
a motion for summary judgment.1 However, a district court’s order denying
qualified immunity is immediately reviewable to the extent that it turns on an
issue of law.2 Thus, we only have jurisdiction to determine whether appellants
are entitled to qualified immunity as a matter of law, viewing all facts in the
light most favorable to Valigura.3 Should an appellant argue that, contrary to
the district court’s determination, there is insufficient evidence in the record to
support the plaintiff’s version of the facts, we must dismiss the appeal for lack
of jurisdiction.4        To determine whether an official is entitled to qualified
immunity as a matter of law, we must examine (1) whether Valigura has alleged
a violation of a constitutional right, and (2) whether appellants’ conduct was
objectively reasonable given the clearly established law at the time of the events
underlying the complaint.5
       The district court found that there are factual disputes over whether all
the defendants were involved in the alleged constitutional violations and
whether Valigura suffered more than a de minimis physical injury. We agree




       1
       Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing 28 U.S.C. § 1291
and Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
       2
           Connelly v. Tex. Dep’t of Criminal Justice, 484 F.3d 343, 345 (5th Cir. 2007).
       3
           Id. at 436.
       4
           Kinney, 367 F.3d at 346-47.
       5
           Connelly, 484 F.3d at 346 (citations omitted).

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                                       No. 07-40284

with the district court that Valigura’s allegations in this regard are material.6
To the extent appellants challenge the sufficiency of the evidence, we lack
jurisdiction on interlocutory appeal.7
       Appellants also argue that Valigura’s allegations do not amount to a
constitutional deprivation. To establish an Eighth Amendment conditions of
confinement claim, Valigura must establish “‘first, that the deprivation alleged
was sufficiently serious (i.e., an official’s act or omission must have resulted in
the denial of the minimal civilized measure of life’s necessities); and second, that
the prison official possessed a sufficiently culpable state of mind.’”8
       The magistrate found that based on the summary judgment evidence, and
a jury’s belief of such evidence, that after fifteen days of being confined to a bunk
for 24 hours a day except to use the bathroom and to shower on occasion, sack
lunches only for the first week, all meals eaten in the cell, and temperatures
above the eighties and into the hundreds, appellants deprived Valigura of the
minimal civilized measure of life’s necessities required by the Eighth
Amendment.9 In accepting the magistrate’s recommendations, the district court
did not err in concluding that should a jury believe Valigura’s allegations,
appellants deprivations are sufficiently serious to implicate the minimal civilized
measure of life’s necessities. We have held that temperatures consistently in the
nineties without remedial measures, such as fans, ice water, and showers,


       6
         Kinney, 367 F.3d at 347 (“‘[W]e can review the materiality of any factual disputes, but
not their genuineness.’” (quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000))).
       7
           Id. at 346-47.
       8
      Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 589 (5th Cir. 2004) (quoting
Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001) (internal quotation marks omitted)).
       9
        Hudson v. McMillian, 503 U.S. 1, 8-10 (1992) (“[O]nly those deprivations denying the
minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an
Eighth Amendment violation.” (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal
quotation marks omitted))).

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                                         No. 07-40284

sufficiently increase the probability of death and serious illness so as to violate
the Eighth Amendment.10                Further, we have held that in “particular
circumstances ‘a deprivation [of exercise] may constitute an impairment of
health forbidden under the eighth amendment.’”11 Here, Valigura presents
evidence that he was not permitted to get up from his bunk to stretch his legs or
to get a drink of water. Combined with the excessive heat and other potential
denials of life’s basic necessities, Valigura presents evidence to support a finding
of an Eighth Amendment violation.
       As to the second prong, the district court found that there was a factual
dispute over whether appellants possessed a sufficiently culpable state of mind.
We do not have jurisdiction to review that finding. Accordingly, the district
court properly found that Valigura has survived summary judgment.
                                               III
       Lastly, appellants argue that their actions were objectively reasonably in
light of the information and circumstances that existed at the time. The district
court found that genuine issues of fact exist as to why and how the bunk
restrictions were imposed. However, the district court did not analyze whether
appellants’ violated clearly established law. As we have held, “officials enjoy
qualified immunity to the extent that their conduct is objectively reasonable in
light of clearly established law.”12
       For a right to be clearly established “for purposes of qualified immunity,
‘the contours of the right must be sufficiently clear that a reasonable official



       10
          Gates v. Cook, 376 F.3d 323, 339-40 (5th Cir. 2004) (affirming district court
injunction).
       11
         Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir. 1982) (quoting Miller v. Carson, 563
F.2d 741, 751 n.12 (5th Cir. 1977)), vacated in part on other grounds, 688 F.2d 266 (5th Cir.
1986).
       12
            Kinney, 367 F.3d at 346 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

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would understand that what he is doing violates that right.’”13 In September
2004—the earliest point in time of Valigura’s allegations—it was clearly
established that Valigura had a right to be free from cruel and unusual
punishment.14 As discussed above, requiring an inmate to remain on his bunk
almost twenty-four hours a day for several days in a row in temperatures into
the nineties and hundreds are allegations that are sufficiently serious to
implicate the minimal civilized measure of life’s necessities.15 Additionally, the
contours of these rights were sufficiently clear at the time of the alleged
deprivation.16 Accordingly, we reject appellants’ argument that their actions
were objectively reasonable.
                                         *        *         *
       For the foregoing reasons, we AFFIRM the judgment of the district court
in part; DISMISS in part; and REMAND the cause for further proceedings.




       13
            Id. at 349-50 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
       14
         See, e.g, Hope v. Peltzer, 536 U.S. 730 (2002) (infliction of pain that is totally without
penological justification violates the Eighth Amendment).
       15
            Gates, 376 F.3d at 339-40; Ruiz, 679 F.2d at 1152.
       16
            Gates, 376 F.3d at 339-40.

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