Morgan v. Canady , 465 F.3d 1041 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN M. MORGAN, 
Plaintiff-Appellee,
v. No. 04-35608
ERIC MORGENSEN,
Defendant,  D.C. No.
CV-03-00132-RSL
and OPINION
TOM CANADY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
May 3, 2006—Seattle, Washington
Filed October 6, 2006
Before: Stephen Reinhardt, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
17447
17450 MORGAN v. CANADY
COUNSEL
Christine O. Gregoire, Attorney General; John C. Dittman
(argued), Assistant Attorney General, Olympia, Washington,
for the appellant.
Timothy K. Ford (argued), Katrin E. Frank, Cristobal Joshua
Alex, Seattle, Washington, for the appellee.
OPINION
CLIFTON, Circuit Judge:
Plaintiff Steven Morgan, a Washington prisoner, was
injured by a defective printing press while working at a prison
job for which he had voluntarily applied. Morgan alleges that
he told his supervisor, Defendant Tom Canady, about the
problem, but that Canady forced Morgan to keep working.
Morgan brought a complaint under 42 U.S.C. § 1983, alleging
that the requirement to continue working under those circum-
stances violated his Eighth and Fourteenth Amendment rights.
Canady moved for summary judgment, asserting a defense of
qualified immunity, which the district court denied. He
appeals that decision, and we affirm. In so doing, we hold
that, under certain circumstances, dangerous prison working
conditions can give rise to an Eighth Amendment claim, not-
MORGAN v. CANADY 17451
withstanding the fact that the prisoner initially obtained his
specific employment assignment through a voluntary applica-
tion process within the prison system. We further hold that a
prison official is not entitled to qualified immunity when he
orders a prisoner to continue operating prison work equipment
that the official has been warned and has reason to believe is
unnecessarily dangerous.
I. Background
Because this case comes to us at the stage of defendant’s
motion for summary judgment, where the underlying facts are
disputed, we “assum[e] that the version of events offered by
the non-moving party is correct” when determining whether
the defendant should nonetheless be entitled to qualified
immunity. Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th
Cir. 2003). We thus recount the facts, where disputed, based
upon the evidence and inferences supporting Morgan’s posi-
tion, recognizing that a trier of fact may make different deter-
minations. See Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).
At the time of the events giving rise to this litigation, Mor-
gan was an inmate in the Monroe Correctional Complex in the
State of Washington. He was employed in the prison print
shop, where Canady was his immediate supervisor. Print shop
work is a Class II Tax Reduction Industry under Washington
state law, meaning that prisoners within these industries pro-
duce goods for sale to public agencies or nonprofit organiza-
tions. See REV. CODE WASH. 72.09.100(2). Among prisoners,
such employment is desirable, because it requires specialized
skill and pays more than ordinary prison labor. Prisoners
desiring such work must apply; employment within the Class
II industries is “at [the prisoner’s] own choice. . . .” See id.
at (2)(e). It is not the prisoner’s choice whether he will or will
not work, though. Prisoners who fail to secure Class II work
may instead be assigned to work elsewhere, usually within the
prison’s Class III Institutional Support Industries. See id. at
(3). Morgan was one of the few prisoners who was selected
17452 MORGAN v. CANADY
for Class II employment within the Monroe Correctional
Complex prison print shop. As part of his employment, he
operated an AB Dick 9800 printing press.
According to Morgan, he and other prison print shop
employees noticed that his press was dangerously defective.
Loose chains caused the press to buck and shake. Morgan
contends that, at some point after he first noticed that his press
was malfunctioning, the press bucked and almost tore off two
of his fingers while he was operating it. Morgan claims that
when he alerted Canady to the problem and asked that it be
fixed, Canady pointed to a pile of paper and told Morgan that
they had an urgent printing project and that there was no time
to stop the press for repairs. Canady told Morgan to continue
working and to “just be very careful.”
Morgan was subsequently injured when the press caught
his hand and tore off his right thumb. Morgan filed a § 1983
action against Canady and other prison officials.1 He alleged
that they subjected him to cruel and unusual punishment, in
violation of the Eighth Amendment, and deprived him of lib-
erty without due process, in violation of the Fourteenth
Amendment, by compelling him to work under dangerous
conditions, resulting in his injury. Defendants brought a
motion for summary judgment on the ground of qualified
immunity. Morgan conceded that the claims against the other
defendants should be dismissed but opposed the motion as to
Canady. The district court granted summary judgment on
Morgan’s complaints as to the other defendants but denied the
motion for summary judgment on the basis of qualified
immunity as to Canady.
1
Morgan also filed a workers’ compensation claim with the Washington
Department of Labor and Industries. The availability of a remedy under
state workers’ compensation law does not preclude a § 1983 claim. See
Jensen v. City of Oxnard, 145 F.3d 1078, 1084 n.3 (9th Cir. 1998). We
express no view on the merits of his workers’ compensation claim; our
review is limited to the question of qualified immunity.
MORGAN v. CANADY 17453
II. Discussion
Ordinarily, a district court’s interlocutory order denying a
motion for summary judgment is not immediately appealable,
but there is an exception for a defendant’s motion for sum-
mary judgment on the basis of qualified immunity. Such an
order is immediately appealable. See Mitchell, 472 U.S. at
530. Not every issue is open to appellate review at this time,
though. In these circumstances, appellate review is generally
limited to issues of law and “does not extend to claims in
which the determination of qualified immunity depends on
disputed issues of material fact.” Wilkins, 350 F.3d at 951
(quoting Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001)
(per curiam)). This court’s review is de novo. See Osolinski
v. Kane, 92 F.3d 934, 936 (9th Cir. 1996).
[1] The doctrine of qualified immunity protects government
officials who perform discretionary functions from civil lia-
bility, as long as “their conduct does not violate clearly estab-
lished statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). In analyzing whether a government official
is entitled to qualified immunity, we address two questions, in
a specific sequence. First, “[t]aken in the light most favorable
to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?” Saucier v.
Katz, 533 U.S. 194, 201 (2001). Second, is the right clearly
established such that a reasonable government official would
know that “his conduct was unlawful in the situation he con-
fronted[?]” See id. at 202. We address each of these issues in
turn.
A. Violation of a Constitutional Right
[2] The Eighth Amendment’s prohibition against cruel and
unusual punishment protects prisoners not only from inhu-
mane methods of punishment but also from inhumane condi-
tions of confinement. See Farmer v. Brennan, 511 U.S. 825,
17454 MORGAN v. CANADY
832 (1994); see also Rhodes v. Chapman, 452 U.S. 337, 347
(1981). Incarceration itself renders prisoners dependent upon
their keepers and “strip[s] them of virtually every means of
self-protection.” Farmer, 511 U.S. at 833. Thus, while condi-
tions of confinement may be, and often are, restrictive and
harsh, they “must not involve the wanton and unnecessary
infliction of pain.” Rhodes, 452 U.S. at 347. In other words,
they must not be devoid of legitimate penological purpose,
see Hudson v. Palmer, 468 U.S. 517, 548 (1984), or contrary
to “evolving standards of decency that mark the progress of
a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).
[3] A prisoner’s labor can constitute a condition of confine-
ment, where the prisoner has no choice but to work in some
capacity within the prison. That is the case here, since Wash-
ington law provides that “[e]very prisoner in a state correc-
tional facility shall be required to work.” REV. CODE WASH.
72.64.030. The prison officials supervising him have a consti-
tutional obligation to take reasonable measures to guarantee
his safety. See Osolinski, 92 F.3d at 937.
[4] Not every injury that a prisoner sustains while in prison
represents a constitutional violation. A prisoner claiming an
Eighth Amendment violation must show (1) that the depriva-
tion he suffered was “objectively, sufficiently serious”; and
(2) that prison officials were deliberately indifferent to his
safety in allowing the deprivation to take place. Farmer, 511
U.S. at 834. More specifically, the Eighth Amendment is
implicated in the prison work context only when a prisoner
employee alleges that a prison official compelled him to “per-
form physical labor which [was] beyond [his] strength,
endanger[ed his life] or health, or cause[d] undue pain.” Berry
v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam);
see also Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995) (ana-
lyzing under the Eighth Amendment a prisoner’s claim that
his health was endangered when he was forced to remove
asbestos without protective gear).
MORGAN v. CANADY 17455
Canady argues that, as a matter of law, Morgan cannot
make out a constitutional violation because Morgan worked
at the print shop, a Class II industry, “at [his] own choice,”
REV. CODE WASH. 72.09.100(2)(e), and therefore could not
have been “compelled” to perform physical labor that endan-
gered life and limb. Morgan, on the other hand, argues that
the fact that he chose to work in a Class II industry does not
transform the statutorily mandated labor he performed into a
voluntary act.
[5] We agree with Morgan. Regardless of how a prisoner
obtains his work, once he is employed and not in a position
to direct his own labor, his supervisors are not free to visit
cruel and unusual punishments upon him. Morgan did not
apply to work with a dangerously defective printing press. See
Bagola v. Kindt, 131 F.3d 632, 645 n.18 (7th Cir. 1997)
(“Whether or not a [prisoner] worker’s voluntary participation
[in a prison work program] would ordinarily remove him
from the Eighth Amendment’s protective umbrella, it is
apparent that voluntariness ends at the point where cruel and
unusual punishments begin.”). He did not waive his Eighth
and Fourteenth Amendment rights by taking a job in the print
shop.
[6] Canady also argues that, as a matter of fact, Morgan
was not “compelled” to work, because he could have refused
to work, resigned from his Class II position, filed an adminis-
trative grievance within the prison system, or filed a Washing-
ton Industrial Safety and Health Act complaint. Morgan
argues, however, that refusing to work was not a viable
option. He submitted to the district court prison rules and reg-
ulations, provisions of the Washington Administrative Code,
and the testimony of other prisoners as evidence tending to
support that claim. Whether Morgan was actually free to dis-
regard a work order is a factual question that the parties
argued about below. The district court expressly found that it
was a disputed factual issue and that summary judgment in
Canady’s favor based on that argument was precluded. As
17456 MORGAN v. CANADY
noted above, at this early stage, we have no jurisdiction to
review the district court’s conclusion that there is a disputed
issue of material fact. See Wilkins, 350 F.3d at 951. For our
purposes, we conclude that the evidence, viewed in the light
most favorable to Morgan, shows that Canady violated Mor-
gan’s constitutional right not to be compelled to perform work
that endangered his health and caused undue pain.
B. Whether the Constitutional Right was Clearly
Established
[7] We proceed to the second qualified immunity inquiry:
whether that right was clearly established. A prison official is
not entitled to qualified immunity if the law governing his
conduct was clearly established such that a reasonable prison
official would know that his conduct was unlawful. See Har-
low, 457 U.S. at 818. Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
As an initial matter, Canady argues that he is entitled to
qualified immunity as a matter of law, because at the time of
the alleged violation, there existed no case law in this circuit,
and there was a conflict among the other circuits, as to
whether a prisoner could make out an Eighth Amendment
violation when he alleges that a prison official compelled him
to continue working with defective prison equipment. Canady
argues that given the state of the law, he could not have
known that he was violating Morgan’s clearly established
constitutional rights.
Canady’s view is not entirely correct. At the time of the
alleged constitutional violation, there did exist a conflict
among other courts as to whether a prisoner could make out
an Eighth Amendment claim when he alleged that a prison
official ordered him to work with prison equipment that the
official has been told is dangerously defective. See Arnold v.
South Carolina Dep’t of Corrs., 843 F. Supp. 110, 112-14
MORGAN v. CANADY 17457
(D.S.C. 1994) (surveying case law). There was, however, case
law within this circuit governing prison officials’ conduct in
the situation that Canady confronted. See Osolinski, 92 F.3d
934.2
In Osolinski, a prisoner was injured when an oven door in
the prison’s family visiting unit fell off its hinges and burned
his arm. He brought a § 1983 action alleging that prison offi-
cials violated his Eighth Amendment right against cruel and
unusual punishment by failing to repair the oven door despite
numerous maintenance requests. See 92 F.3d at 935. In ana-
lyzing whether it was clearly established that prisoners had a
constitutional right to have prison officials repair known
safety hazards, the Osolinski court turned to the only prece-
dent from our court at the time governing dangerous prison
conditions, Hoptowit v. Spellman, 753 F.2d 779 (9th Cir.
1985).
In Hoptowit, this court concluded that various conditions of
confinement at a California prison violated the Eighth
Amendment. Among these conditions, “safety hazards found
throughout the penitentiary’s occupational areas, exacerbated
by the institution’s inadequate lighting, seriously threaten[ed]
the safety and security of inmates and create[d] an unconstitu-
tional infliction of pain” in violation of the Eighth Amend-
ment. Id. at 784. The Osolinski court then interpreted
Hoptowit to require a prisoner alleging Eighth Amendment
violations arising out of prison safety hazards to show what
might be called “danger-plus.” That is, he must demonstrate
the existence of not only a threat to his safety (in Hoptowit,
the unsafe occupational areas), but also some additional con-
dition exacerbating that threat (in Hoptowit, inadequate light-
ing). Osolinski, 92 F.3d at 938.
2
The fact that there was a potential circuit split on this issue does not
preclude our holding that the law was clearly established for the purposes
of the § 1983 inquiry. See Rivero v. City and County of San Francisco,
316 F.3d 857, 865 (9th Cir. 2002).
17458 MORGAN v. CANADY
The Osolinski court favorably cited Gill v. Mooney, 824
F.2d 192 (2d Cir. 1987), as an example of when a “danger-
plus” condition would violate the Eighth Amendment. In Gill,
a prisoner alleged an Eighth Amendment violation as a result
of an injury he sustained after a prison official ordered him to
continue working on a ladder that the prisoner had told him
was defective and unsafe. Id. at 195. The Osolinski court
noted that “[t]he order to remain on the ladder in Gill exacer-
bated the inherent dangerousness of the defective ladder, ren-
dering the ladder a serious safety hazard, akin to those found
in Hoptowit.” 92 F.3d at 939.
[8] The factual situation in the present case is essentially
like Gill. Morgan, like Gill, alerted his supervisor to a danger-
ous defect in the equipment he was using as a part of his
prison employment. Canady, like Gill’s supervisor, ordered
the prisoner to continue working with the defective equip-
ment. Both prisoners were injured as a result of following
those orders. Osolinski, and its extensive embedded discus-
sion of Hoptowit and Gill, clearly established that a safety
hazard in an occupational area, the dangerousness of which is
exacerbated when a prison official orders a prisoner to con-
tinue working with it after the prisoner raised a concern about
whether it was safe to do so, constituted a violation of the
prisoner’s Eighth Amendment rights.
[9] Before Morgan’s injury, the contours of this right were
sufficiently clear that a reasonable prison official would or
should have understood that compelling an inmate to continue
operating defective and dangerous prison work equipment
would violate the Eighth Amendment. Thus, Canady’s con-
duct was not reasonable in light of the precedent that existed
at the time of the alleged violation. See Anderson v. Creigh-
ton, 483 U.S. 635, 640 (1987).3 The district court properly
3
We “need not reach the question whether the facts alleged show that
appellants acted with deliberate indifference. The focus of our review is
the objective requirement. We review Eighth Amendment law to deter-
mine whether, in light of clearly established principles at the time of the
incident, the officials could have believed their conduct was lawful.”
Osolinski, 92 F.3d at 937.
MORGAN v. CANADY 17459
denied Canady’s motion for summary judgment on the basis
of qualified immunity.
AFFIRMED; REMANDED FOR FURTHER PRO-
CEEDINGS.