15 F.4th 1296
10th Cir.
2021

JANET CRANE, as Administrator of Brock Tucker’s Estate v. UTAH DEPARTMENT OF CORRECTIONS; ALFRED BIGELOW, Warden of the Central Utah Correctional Facility; RICHARD GARDEN, Director of the Clinical Services Bureau for the Utah Department of Corrections; DON TAYLOR, Inmate Disciplinary Officer at the Central Utah Correctional Facility; FNU COX, Correctional Officer at Central Utah Correctional Facility; BRENT PLATT, Director of Utah Division of Child and Family Services; UNIVERSAL HEALTH SERVICES INC., a Private for-Profit Corporation; SUSAN BURKE; and FUTURES THROUGH CHOICES, a private corporation; JEREMY COTTLE, CEO and Managing Director of Provo Canyon School

No. 20-4032

United States Court of Appeals for the Tenth Circuit

October 21, 2021

PUBLISH

PUBLISH

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Appeal from the United States District Court for the District of Utah

(D.C. No. 2:16-CV-01103-DN)

Samuel Weiss, Rights Behind Bars, Washington, DC (Randall W. Richards, Richards & Brown PC, Clearfield, Utah, with him on the briefs), argued for Plaintiff – Appellant.

Joshua D. Davidson, Assistant Utah Solicitor General, Utah Attorney General’s Office, Salt Lake City, Utah, argued for Defendants - Appellees.

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

This is an appeal from the dismissal of a suit brought by the estate of a mentally ill and intellectually disabled prisoner who committed suicide while in Utah Department of Corrections (“UDC”) custody. Brock Tucker was seventeen when he was imprisoned at the Central Utah Correctional Facility (“CUCF”). His incarceration followed a childhood marred by abuse and tragedy, including a near fatal accident that caused severe brain damage and impulse control disorders. At CUCF, Mr. Tucker endured long periods of punitive isolation. CUCF officials rarely let Mr. Tucker out of his cell, and he was often denied recreation, exercise equipment, media, commissary, visitation, and library privileges. Mr. Tucker hanged himself approximately two years after his arrival at CUCF.

Plaintiff-appellant Janet Crane is Mr. Tucker’s grandmother and the administrator of his estate. She sued on his estate’s behalf, and she continues to pursue three types of claims on appeal: (1) Eighth Amendment claims against four prison officials (the “CUCF Defendants”); (2) statutory claims for violations of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act against UDC; and (3) a claim under the Unnecessary Rigor Clause of the Utah Constitution against both the CUCF Defendants and UDC. The CUCF Defendants are: (1) Alfred Bigelow, the warden of CUCF from approximately 2007 to July 2010 and April 2014 to February 2017; (2) Richard Garden, the Director of the Clinical Services Bureau for UDC during the relevant time period; (3) Don Taylor, an inmate disciplinary officer at CUCF; and (4) Officer Cox, a correctional officer at CUCF.1

The Defendants moved for judgment on the pleadings. The district court granted the motion, holding the CUCF Defendants were entitled to qualified immunity on the federal constitutional claims and the federal statutory claims did not survive Mr. Tucker’s death. As a result, the district court declined to exercise supplemental jurisdiction over the state cоnstitutional claim.

Ms. Crane timely appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History2

Brock Tucker lived a difficult life. His parents were heavy drug abusers, and they separated shortly after his birth. Mr. Tucker’s mother, father, grandmother, and Utah’s Division of Child and Family Services (“DCFS”) all had custody of Mr. Tucker at various points in time. He spent years rotating in and out of juvenile facilities and programs, during which he experienced severe abuse by staff. The Amended Complaint details the abuse Mr. Tucker suffered and the toll it took on his mental health, including numerous instances of self-mutilation and suicidal ideation. See App. at 25–27.3

Mr. Tucker’s mental health was already fragile prior to the abuse. He nearly drowned as a child, and the incident damaged his brain and stunted his cognitive development. When Mr. Tucker began having behavioral issues at age eleven, Ms. Crane took him to see Dr. David Nilsson, a certified clinical neuropsychologist who specialized in treating neurodevelopmental and neurobehavioral disorders resulting from brain injuries. Dr. Nilsson diagnosed Mr. Tucker with brain damage, an IQ of 70, and an impulse control disorder that left Mr. Tucker “unduly impressionable and overly influenced by his surroundings and other people.” Id. at 25.

The Amended Complaint alleges Mr. Tucker was “fully beaten down from repeated mental and physical abuse” and took solace in gang activity. Id. at 28. In March 2012, Mr. Tucker was charged with automоbile theft and related offenses. In August 2012, he was sentenced to imprisonment for 2 to 5 years. UDC transferred Mr. Tucker to CUCF shortly after his sentencing.

Once there, inmate disciplinary officers—including Defendant Taylor—punished Mr. Tucker for various non-violent infractions. This punishment included “punitive isolation” that kept Mr. Tucker isolated in his cell except for, at most, one hour every other day to shower. Id. Mr. Tucker was denied access to recreation, exercise equipment, the library, visitation, phone calls, and the commissary. Between February 2013–2014, Mr. Tucker spent more than 154 days in punitive isolation. CUCF staff also changed Mr. Tucker’s inmate classification code on June 9, 2014, resulting in his placement in maximum security housing and his confinement to a cell for 21 hours per day, with reduced visitation time and reduced privileges.

In June 2014, UDC physician Bruce Burnham diagnosed Mr. Tucker with unspecified psychosis and major depressive disorder, along with moderate back pain and hepatitis C. Dr. Burnham prescribed anti-depressant and anti-anxiety medications, and, in July 2014, he ordered Mr. Tucker to outpatient mental health treatment. Mr. Tucker also met with social worker Brian Droubay on September 12, 2014. At this meeting, Mr. Tucker complained about mistreatment by CUCF staff.

On September 19, 2014, Defendant Taylor sentenced Mr. Tucker to two consecutive 20-day periods of punitive isolation for having a new tattoo, making verbal threats to staff, and opening another inmate’s door and discharging a liquid from a container at the inmate. Defendant Taylor levied this punishment without consulting mental health staff, in apparent violation of CUCF Policy FD18/12.03. This policy provides “[w]hen disciplinary action is being considered for an offender in outpatient treatment, the psychiatrist mental health staff shall provide information to the discipline hearing officer stating whether or not the behavior was due to mental illness.” Id. at 33. Three days later, Mr. Tucker received two new disciplinary notices, meaning his time in punitive isolation would likely be extended. The record does not identify who sentenced Mr. Tucker to these additional punitive isolation terms.

On October 2, 2014, Defendant Cox argued with Mr. Tucker through his cell door. Defendant Cox refused to allow Mr. Tucker to leave his isolation cell for exercise that day, and Defendant Cox was seen entering Mr. Tucker’s cell by himself, in violation of prison policy. Shortly afterward, Mr. Tucker placed a towel over his cell door window, which the Amended Complaint characterizes as “a clear indication that [Mr. Tucker] was going to harm himself.” Id. at 34. His isolation cell had a top bunk bed, sheets, and towels, “thereby giving [Mr. Tucker] the means to commit suiсide.” Id. Later that evening, an officer distributing medication discovered Mr. Tucker dead, hanging from the top of his bunk bed in his isolation cell.

B. Procedural History

Ms. Crane filed suit under 42 U.S.C. § 1983 in Utah state court. Defendants removed the suit to federal court in October 2016. Thereafter, Ms. Crane filed a six-count amended complaint, asserting: (1) an Eighth Amendment claim against the CUCF Defendants collectively, alleging cruel and unusual punishment based on Mr. Tucker’s conditions of confinement and deliberate indifference to his serious medical needs; (2) an Eighth Amendment claim against Defendant Taylor, based on his choice to discipline Mr. Tucker with punitive isolation in September 2014; (3) an Eighth Amendment claim against Defendant Cox, based on the events of October 2, 2014; (4) a Fourteenth Amendment claim against five “DCFS Defendants,” based on the abuse Mr. Tucker suffered at various facilities overseen by those parties; (5) a claim for ADA and Rehabilitation Act violations against UDC;4 and (6) a claim for violation of article I, section 9, of the Utah Constitution (“Unnecessary Rigor”) against all Defendants. Ms. Crane sued the CUCF Defendants in their individual capacities.

In September 2017, the district court dismissed two DCFS Defendants after determining the allegations against them were “conclusory statements devoid of supporting factual allegations.” Crane v. Utah Dep’t of Corr., No. 2:16-CV-1103 DN, 2017 WL 4326490, at *3 (D. Utah Sept. 28, 2017). The remaining Defendants moved for judgment on the pleadings, arguing Ms. Crane failed to state a plausible claim and the CUCF Defendants were entitled to qualified immunity.

In February 2020, the district court entered a written order granting the Motion for Judgment on the Pleadings. Before turning to the merits, the district court dismissed the remaining DCFS Defendants.5 It then analyzed the three categories of remaining allegations: (1) Eighth Amendment claims against all of the CUCF Defendants, including allegations of supervisor liability against Defendants Bigelow and Garden and the counts specific to Defendants Taylor and Cox; (2) the ADA claim against Defendant UDC; and

(3) the unnecessary rigor claims against all of the remaining Defendants—i.e., the CUCF Defendants and Defendant UDC.

The district court dismissed Ms. Crane’s claims against all three groups. First, the district court held qualified immunity shielded each CUCF Defendant from the Eighth Amendment claims because Ms. Crane failed to identify a clearly established constitutional right the Defendants allegedly violated. Because this was dispositive, the district court did not analyze whether any of the CUCF Defendants had violated Mr. Tucker’s constitutional rights. Second, the district court rejected the ADA claim, citing a District of Utah case that held ADA claims do not survive a plaintiff’s death under Utah’s state survival statute. Third, having dismissed all of Ms. Crane’s federal law claims, the court declined to exercise supplemental jurisdiction over the remaining state constitutional claim.

II. DISCUSSION

“We review a distriсt court’s grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Leiser v. Moore, 903 F.3d 1137, 1139 (10th Cir. 2018) (quotation marks omitted). To survive a motion for judgment on the pleadings,6 “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint pleading “facts that are ‘merely consistent with’ a defendant’s liability” does not meet this threshold. Id. (quoting Twombly, 550 U.S. at 557). Courts do not assume as true allegations that are legal conclusions, formulaic recitations of elements, or naked assertions devoid of further factual enhancement. See id.

A. Eighth Amendment Claims and Qualified Immunity

Ms. Crane alleges the CUCF Defendants subjected Mr. Tucker to cruel and unusual punishment in violation of the Eighth Amendment. The CUCF Defendants argue they are shielded from these claims by qualified immunity. See Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (noting qualified immunity “protects public employees from both liability and from the burdens of litigation arising from their exercise of discretion” (internal quotation marks omitted)). To defeat a qualified immunity defense, the plaintiff must demonstrate “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Id. (emphasis and internal quotations marks omitted). The court may address these two

government officials [will] be resolved prior to discovery.’” (second alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987))).

prongs in either order. Id. We begin by analyzing the second prong because it proved dispositive in the district court and proves dispositive here.

A right is clearly established for qualified immunity purposes if “every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). This ordinarily means “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.” Schwartz v. Booker, 702 F.3d 573, 587 (10th Cir. 2012) (quotation marks omitted). Precedent need not be “directly on point” so long as it places the “statutory or constitutional question beyond debate.” Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Still, clearly established law must remain moored in a specific set of facts. “The dispositive question is ‘whether the violative nature of particular conduct is clearly established,’” which means courts may not “‘define clearly established law at a high level of generality.’” Id. (emphasis in original) (quoting al-Kidd, 563 U.S. at 742). “The plaintiff bears the burden of citing to us what he thinks constitutes clearly established law.” Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010).

On appeal, Ms. Crane asserts that “putting the severely mentally ill in solitary confinement can constitute deliberate indifference to substantial harm.” Aplt. Br. at 10. She bases this assertion on the purportedly “well-recognized and clearly established right of seriously mentally ill prisoners at risk of suicide not to be confined in excessively punitive solitary confinement—particularly in conditions that facilitate suicide, such as

cells that contain hanging implements and a tie-off point.” Aplt. Reply at 6. We thus examine whether mentally ill prisoners have a clearly established right to be free from punitive isolation.7

Ms. Crane does not argue that a single case clearly establishes this right. Rather, she cites two lines of cases that she contends together do so. Specifically, Ms. Crane asserts the first line of cases clearly establishes “that placing the seriously mentally ill in solitary confinement can constitute deliberate indifference.” Aplt. Br. at 14. She argues the second line of cases clearly establishes “that housing seriously mentally ill prisoners

at risk of suicide in cells that facilitated hanging constituted deliberate indifference.” Id. at 16. Ms. Crane claims the combination of these cases provided the CUCF Defendants fair notice that their conduct was unconstitutional.8 Significantly, when defining the right-at-issue on appeal, Ms. Crane does not mention any requirement that a defendant have subjective knowledge of the inmate’s substantial risk of suicide.

The lines of cases Ms. Crane cites do not clearly establish either proposition she claims they stand for, nor do they together clearly establish the constitutional right Ms. Crane espouses on appeal. We address each line of cases in turn.

1. Confining Mentally Ill Inmates in Punitive Isolation

Ms. Crane contends that “placing the seriously mentally ill in solitary confinement can constitute deliberate indifference.” Aplt. Br. at 14. That is, she argues there is a

clearly established constitutional right of all seriously mentally ill inmates not to be placed in solitary confinement. In support, Ms. Crane cites four district court cases from outside this circuit. Even if they were controlling, these cases do not carry the weight she places upon them.

a. Cited precedent

First, in Madrid v. Gomez, the Northern District of California held that conditions in the security housing units of a state prison subjected mentally ill inmates to cruel and unusual punishment. 889 F. Supp. 1146 (N.D. Cal. 1995). These conditions included cells designed to reduce visual stimulation and views of the outside world; complete social isolation for 22.5 hours each day for weeks, months, or years; exclusion from prison job opportunities or other recreational or educational programs; and limited media and visitation privileges. Id. at 1228–30. The court said “subjecting individuals to [these] conditions that are ‘very likely’ to . . . seriously exacerbatе an existing mental illness . . . deprives [mentally ill] inmates of a minimal civilized level” of mental health, “especially when certain aspects of those conditions appear to bear little relation to security concerns.” Id. at 1266. The court then held the prison officials acted with deliberate indifference toward mentally ill inmates by failing to ameliorate the offending conditions, despite knowing of their detrimental effects on mentally ill inmates. Id. at 1266–67.

Second, in Ruiz v. Johnson, the Southern District of Texas held the conditions in the Texas prison system’s “administrative segregation units clearly violate constitutional standards when imposed on the subgroup of . . . mentally-ill prisoners.” 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999), rev’d on other grounds sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001). These conditions included stripping inmates of virtually all personal property and hygienic materials, restricting inmate diets, forcing inmates to wear paper gowns, and depriving inmates of exercise, social activity, and outside contact. Id. at 908 & n.91. Experts reported that incidents of self-mutilation, incessant babbling, and shrieking were almost daily events in the segregation units. Id. at 908. The court determined that prison officials were “well aware of both these conditions and these inmates’ ensuing ‍​​‌‌​‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​‌​​​‌‌​‌‌​‌‌​‌​​​‌​​​‌‌‌‍pain and suffering,” and “knowingly turned [their] back on this most needy segment of its population.” Id. at 913–14. Accordingly, the court held defendants were “deliberately indifferent to the serious risks posed by subjecting suсh inmates to confinement in administrative segregation for extended periods of time.” Id. at 915.

Third, in Jones‘El v. Berge, the Western District of Wisconsin granted in part a preliminary injunction to inmates at a supermaximum security facility, which was comprised of 500 segregation cells. 164 F. Supp. 2d 1096, 1125–26 (W.D. Wis. 2001). The injunction required the state to transfer several mentally ill inmates and to conduct mental health evaluations of others. Id. In granting the injunction, the court found plaintiffs’ claim that conditions in the facility’s segregation cells violated the Eighth Amendment rights of mentally ill inmates had a “better than negligible chance of succeeding.” Id. at 1098, 1117. The facility’s segregation cells created “almost total sensory deprivation” by isolating inmates for all but four hours a week, preventing incidental contact with others outside the cells, severely restricting programming and exercise opportunities, and keeping lights on at all hours of the day. Id. at 1118; see also id. at 1119–20 (comparing the supermax to the prisons in Madrid and Ruiz). Because prison officials knew the segregation cells exacerbated mental illness, the defendants’ “burden is to demonstrate that they took reasonable steps to keep seriously mentally ill inmates from being transferred to [the facility] and to transfer out any inmates who develop serious mental illnesses.” Id. at 1121. The court then determined defendants failed to carry this burden, meaning they acted with deliberate indifference towards this subset of inmates. Id. at 1121–23.

Fourth, in Indianа Protection and Advocacy Services Commission v. Commissioner, Indiana Department of Correction, the Southern District of Indiana held state prison officials violated the Eighth Amendment rights of mentally ill inmates held in segregation units. No. 1:08-CV-01317-TWP-MJD, 2012 WL 6738517 (S.D. Ind. Dec. 31, 2012). These inmates spent up to 22.75 hours per day in isolation and had limited recreation, commissary, and media privileges. Id. at *3–5, *7. The court noted “the severe conditions in the segregation units cause a predictable deterioration of the mental health of seriously mentally ill prisoners [that the state] has explicitly observed.” Id. at *17. Yet, prison records regarding one prisoner who committed suicide “disclose[d] that there was only one correctional staff member for the entire area and the staff person was unable to visually supervise the prisoner.” Id. Records concerning another prisoner noted he was not brought to multiple mental health appointments shortly before his suicide, and after one missed appointment he was not seen for a week. Id. The court then held the state acted with deliberate indifference toward mentally ill prisoners confined in segregation units by failing to provide “minimally adequate mental health care in terms of scope, intensity, and duration,” even though they knew of the substantial risk of harm created by their failure to dо so. Id. at *22–23.

b. Analysis

These cases share a common theme. They stand for the proposition that isolating mentally ill inmates in conditions that seriously and predictably exacerbate their mental illness is cruel and unusual when the official has subjective knowledge of both the mental illness and the impact of isolation. Although these trial court decisions may portend future legal developments, they do not constitute clearly established law capable of overcoming qualified immunity here.

District court cases lack the precedential weight necessary to clearly establish the law for qualified immunity purposes. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (noting “[m]any Courts of Appeals . . . decline to consider district court precedent when determining if constitutional rights are clearly established for purposes of qualified immunity” because they are not binding precedent); Lowe v. Raemisch, 864 F.3d 1205, 1211 (10th Cir. 2017) (rejecting that district court’s holding clearly established underlying right because district court holdings are “not controlling in any jurisdiction”); Bailey v. Twomey, 791 F. App’x 724, 730 (10th Cir. 2019) (unpublished) (“[A] district court case . . . [does not] suffice to show the law is clearly established.”). Tellingly, Ms. Crane does not rely on these district court cases in her reply brief. See Aplt. Reply at 6 (claiming Defendants failed to “refute the chorus of circuit courts that have recognized this [espoused] right” (emphasis added). And Ms. Crane cites no on-point decisions from this сircuit or the Supreme Court, nor decisions from any other circuit court, that hold punitive isolation of mentally ill inmates violates the Eighth Amendment in the absence of knowledge that a specific inmate is suicidal. Thus, the CUCF Defendants’ general use of punitive isolation to discipline prisoners who happen to be mentally ill does not violate clearly established law.

2. Confining Suicidal Inmates in Cells that Facilitate Suicide

Ms. Crane next argues that “housing seriously mentally ill prisoners at risk of suicide in cells that facilitated hanging constituted deliberate indifference.” Aplt. Br. at 16. However, she does not support this claim with any precedent from the Supreme Court or this circuit—which is ordinarily required to demonstrate a right is clearly established. See Schwartz, 702 F.3d at 587. And even the out-of-circuit cases she cites do not stand for the proposition asserted. Specifically, the cited cases do not clearly establish that confining suicidal inmates in cells that facilitate hanging is unconstitutional per se. Rather, these cases stand for a more limited proposition that does not expand the right recognized by this circuit’s deliberate indifference jurisprudence. Namely, as we explained in Cox v. Glanz, prison officials are deliberately indifferent if they fail to take reasonable steps to protect a pre-trial detainee or an inmate from suicide when they have subjective knowledge that person is a substantial suicide risk. 800 F.3d 1231, 1248–49 (10th Cir. 2015).

a. Cited precedent

First, in Sanville v. McCaughtry, the Seventh Circuit held the allegations made by a decedent’s estate could, if proven, defeat qualified immunity for prison officials guarding the decedent’s cell during his suicide. 266 F.3d 724, 737–41 (7th Cir. 2001).

The decedent was a mentally ill inmate incarcerated in an isolation cell at the time of his death. Id. at 728, 731. His estate brought a § 1983 action against various prison officials for Eighth Amendment violations; the district court dismissed the action, finding all the named officials were entitled to qualified immunity. Id. at 732. In its complaint, the estate alleged certain prison guards knew the inmate presented a substantial suicide risk. Id. at 737. And that allegation was supported by specific factual assertions. The guards knew the inmate had written a last will and testament, had been told by the inmate that he was suicidal, were aware the inmate had previously attempted suicide and suffered from mental illness, had observed that the inmate had stopped eating and had lost significant weight, and knew the inmate’s mother had alerted the prison about his suicidality. Id. at 730, 737. His estate further alleged the inmate covered his cell window with toilet paper, the window remained covered for five hours, and three guards saw but ignored the obstructed window on four separate occasions. Id. at 739–40. During this time, the inmate hanged himself using a pillowcase. Id. at 731.

The Seventh Circuit held these allegations would, if proven, show the guards made “no apparent attempt to discern whether [the inmate] was stable . . . [which] could easily be considered egregious enough to rise to the level of deliberate indifference.” Id. at 739. Like Ms. Crane’s reliance on Cox in the district court, see note 7 supra, the Seventh Circuit cited deliberate indifference to a known risk of suicide as the clearly established right violated by the guards’ conduct. Id. at 740 (“There can be little debate that it was clearly established, long before 1998, ‘that prison officials will be liable under Section

1983 for a pretrial detainee’s suicide if they were deliberately indifferent to a substantial suicide risk.’” (quoting Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992))).

Second, in Jacobs v. West Feliciana Sheriff’s Department, the Fifth Circuit affirmed the denial of qualified immunity for two of three officers detaining an arrestee who committed suicide. 228 F.3d 388 (5th Cir. 2000). Survivors of the arrestee brought § 1983 claims against the officers,9 and a magistrate judge denied the officers’ motion for summary judgment based on qualified immunity. Id. at 392. On appeal, the Fifth Circuit noted the officers were aware the arrestee had attempted suicide following her arrest, deemed her a suicide risk, and placed her in an isolation cell. Id. at 390–91. Nevertheless, the officers provided her with loose bedding and assigned her a cell with a substantial blind spot and multiple tie-off points that two of the officers knew another inmate had used to commit suicide. Id. at 394, 395–97. The officers also violated unwritten departmental pоlicy by avoiding observation of the arrestee for a long period of time. Id. at 394.

The Fifth Circuit held these actions provided “sufficient evidence . . . for a jury to conclude [two of the officers] acted with deliberate indifference to [the arrestee’s] known suicidal tendencies.” Id. at 396 (discussing first officer); id. at 397–98 (reaching the same conclusion with respect to second officer); see also id. at 393 (“It is well-settled in the

law that “a state official‘s episodic act or omission violates a pretrial detainee‘s due process rights to medical care [and protection from harm] if the official acts with subjective deliberate indifference to the detainee‘s rights.” (alteration in original) (quoting Nerren v. Livingston Police Dep‘t, 86 F.3d 469, 473 (5th Cir. 1996))). The Fifth Circuit held the third officer, who had been on the job for only about six months prior to the arrestee‘s death, was entitled to qualified immunity because he did not have any direct control over the decisions to place the arrestee in the isolation cell or to give her loose bedding, and he did not know about the previous suicide in the isolation cell. Id. at 398 (noting this officer “was essentially following orders” and “cannot be said to have been on the same notice” as the other two officers that the isolation cell was obviously inadequate).

Third, in Snow ex rel. Snow v. City of Citronelle, the Eleventh Circuit reversed summary judgment for one of six officers guarding a pretrial detainee who committed suicide. 420 F.3d 1262 (11th Cir. 2005). Thе administrator of the detainee‘s estate sued the officers under § 1983, and the district court granted summary judgment to all six officers on qualified immunity grounds. Id. at 1268. On appeal, the Eleventh Circuit reversed summary judgment as to one officer. Id. at 1265. The court noted that another correctional institution reported to this officer the detainee‘s recent attempt to cut her wrists and the officer personally observed the detainee wildly beat on her cell door and climb on the sink in her cell. Id. at 1266–67, 1270. The officer, however, went off duty without communicating to his colleagues his belief the detainee was a strong suicide risk, and he admitted to not monitoring the detainee as if she were suicidal. Id. at 1270. The detainee‘s parents also testified the officer informed them their daughter was suicidal. Id. The court held the officer was not protected by qualified immunity, as “a jury could find that [the officer] had subjective knowledge that there was a strong risk that [the detainee] would attempt suicide and deliberately did not take any action to prevent that suicide.” Id.

The court, however, affirmed dismissal of the claims against the other five officers based on qualified immunity because the plaintiff had “not presented any evidence that these five defendants had subjective knowledge of a strong likelihood that [the detainee] would attempt to cоmmit suicide.” Id. at 1269. The court reached this conclusion despite the detainee‘s “emergency room records show[ing] a strong likelihood that she would attempt to commit suicide” because “there [was] no evidence that these defendants knew about that information.” Id.

Fourth, in Coleman v. Parkman, the Eighth Circuit affirmed the denial of qualified immunity to two officers responsible for an arrestee who committed suicide. 349 F.3d 534 (8th Cir. 2003). The administrator of the arrestee‘s estate sued the officers for violating his constitutional rights, and the district court denied the officers’ motion for summary judgment based on qualified immunity. Id. at 536–37. On appeal, the Eighth Circuit concluded “the evidence supports an inference that [the officers] recklessly disregarded the risk that [the arrestee] would commit suicide.” Id. at 539. The court highlighted evidence suggesting the officers were told the arrestee was a suicide risk and would kill himself if jailed, the arrestee was on suicide watch, and the officers knew the arrestee recently threatened suicide. Id. at 536. Yet, the officers provided the arrestee with a bed sheet and placed him in a “drunk tank” with tie-off points that were difficult to observe. Id. The arrestee used the bed sheets to commit suicide, id., and the court held a “jury could reasonably deduce that [the officers] recklessly disregarded” the arrestee‘s suicide risk, id. at 539.

Importantly, the “sole issue on appeal [was] whether the district court erred when it found the allеged facts . . . show[ed] [the officers] violated the Constitution.” Id. at 538. The officers did “not argue that the [espoused] right was not ‘clearly established,‘” meaning this case did not affirm the existence of any constitutional right. Id. at 538 n.2. On the contrary, the court “pause[d] . . . to note the difficulty courts have experienced ‍​​‌‌​‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​‌​​​‌‌​‌‌​‌‌​‌​​​‌​​​‌‌‌‍when evaluating [the clearly established law prong] in deliberate indifference cases.”10 Id.

b. Analysis

Ms. Crane claims these cases give the CUCF Defendants fair notice that providing an inmate at substantial risk of suicide, like Mr. Tucker, with “a hanging implement in a solitary confinement cell with a tie-off point,” and “knowingly ignor[ing his cell‘s] window covering instead of investigating” it, constitute deliberate indifference under the Eighth Amendment. Aplt. Br. at 16. Yet, she overlooks a connective thread uniting these cases. It is true the defendants’ decision to give a suicidal arrestee bedding and their subsequent failure to monitor her in a cell with multiple tie-off points were key facts in Jacobs. 228 F.3d at 395–98. It is also true the defendants’ refusal to check on a suicidal inmate after he covered his cell window with toilet paper was critical in Sanville. 266 F.3d at 739–40. In Snow, the officer‘s failure to alert others to the known risk of suicide before going off duty drove the court‘s decision. 420 F.3d at 1270. And in Coleman, the officers provided bedsheets the decedent used to commit suicide despite being aware of that risk. 349 F.3d at 536, 539.

Even if these deсisions were sufficient to clearly establish the law of this circuit, they do not support Ms. Crane‘s position on appeal. None of the cases adopts a blanket rule against punitive isolation of mentally ill inmates, or against the placement of such inmates in cells with tie off points. At most, they reiterate the principle articulated in this court‘s decision in Cox—prison officials are deliberately indifferent if they fail to take reasonable steps to protect a pre-trial detainee or an inmate from suicide when they have subjective knowledge that person is a substantial suicide risk. Cox, 800 F.3d at 1248–49. But we see nothing in these cases clearly establishing a constitutional right where the defendant lacks that subjective knowledge.

To be sure, prison conditions may be so deficient that an inmate‘s constitutional rights are implicated, without regard to the inmate‘s mental health. See Wilson v. Seiter, 501 U.S. 294 (1991). But the clearly established law in this area is limited. This is because the facts of such cases vary significantly, and “general statements of law . . . provide fair warning that certain conduct is unconstitutional . . . [only] if they ‘apply with obvious clarity to the specific conduct in question.‘” Halley v. Huckaby, 902 F.3d 1136, 1157 (10th Cir. 2018) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)); see also Redmond v. Crowther, 882 F.3d 927, 939 (10th Cir. 2018) (“General legal standards . . . rarely clearly establish rights.”). Obvious cases are rare and inarguable. See, e.g., Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam) (stating general constitutional principles provided fair warning that confining an inmate in a cell covered in massive amounts of feces or forcing him to sleep naked in sewage was unconstitutional); Hope v. Pelzer, 536 U.S. 734–35, 738 (2002) (deeming the second instance of handcuffing a shirtless inmate to a hitching post for seven hours, in the sun, without bathroom breaks, and with minimal water, an “obvious” Eighth Amendment violation); Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015) (denying qualified immunity to a police officer who used his official squad car and activated its emergency lights to speed through city streets at more than sixty miles per hour and for over 8.8 miles, all for his personal pleasure rather than for official business, thereby causing a car crash, because his conduct was “so obviously unlawful”).

The CUCF Defendants’ actions—when viewed outside the context of this circuit‘s deliberate indifference standard as articulated in Cox, do not cross a clearly established constitutional line. Here, the facts are more analogous to cases where qualified immunity was granted. In Lowe v. Raemisch, for example, an inmate alleged prison staff violated his Eighth Amendment rights by refusing him outdoor exercise for two years and one month. 864 F.3d at 1206–07. Importantly, there was no allegation the inmate in Lowe was mentally ill or suicidal. The district court denied the officials qualified immunity after holding “Tenth Circuit cases and many other cases clearly establish[ed] . . . depriving [an inmate] of outdoor exercise for an extended period of time [is] likely a violation of his constitutional rights.” Id. at 1207. This court reversed, despite having previously rеcognized the “denial of outdoor exercise hinders an inmate‘s psychological and physical health,” because there was no clearly established precedent establishing how long the deprivation must last before the constitutional violation becomes obvious. Id. at 1211 & n.11. Citing one case noting “[r]estricting outdoor exercise to one hour per week does not violate the Eighth Amendment,” and another acknowledging “[t]he denial of outdoor exercise for three years could arguably involve deliberate indifference,” we held “[t]he deprivation of outdoor exercise for two years and one month is not so obviously unlawful that a constitutional violation would be undebatable.” Id. at 1209–10.

Ms. Crane dismisses the requirement to identify existing precedent with high levels of factual similarity by emphasizing the Tenth Circuit “has ‘adopted a sliding scale to determine when law is clearly established.‘” Aplt. Br. at 10 (quoting Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016)). Under the sliding scale approach, “[t]he more obviously egregious the conduct . . . , the less specificity is required from prior case law to clearly establish the violation.” Davis, 825 F.3d at 1136 (quotation marks omitted).

However, Ms. Crane provides no rationale for why the sliding scale should lower the level of factual similarity required here. She claims she has “alleged particularly egregious conduct,” Aplt. Br. at 12, so problematic that one “cannot dispute the obvious cruelty of [the CUCF Defendants‘] conduct,” Aplt. Reply at 9. But Ms. Crane neither compares the facts here to cases where we used the sliding scale to lower the level of factual similarity required, nor cites any precedent deeming similar conduct obviously egregious. The cases she cites as supportive include arguably more egregious facts than those here. See Sanville, 266 F.3d at 730, 737 (noting the defendants knew the inmate wrote a last will and testament contemplating his imminent suicide); Jacobs, 228 F.3d at 394, 395–97 (noting the defendants provided a detainee with bedding, even though they knew she was a suicide risk and other inmates had committed suicide in the same cell and manner). And as previously discussed, the CUCF Defendants’ actions do not rise to the level of egregiousness the Supreme Court and this court have declared obviously unlawful. Therefore, the sliding scale approach cannot save Ms. Crane‘s Eighth Amendment claims from the inability to locate a clearly established constitutional right.

In summary, on appeal, Ms. Crane argues only that “[i]t was clearly established that subjecting a suicidal and intellectually disabled individual to these unusually harsh solitary confinement conditions was unconstitutional.” Aplt. Br. at 13. Yet, she fails to identify any precedent clearly establishing this theory. We therefore hold Ms. Crane has failed to satisfy the second requirement necessary to overcome qualified immunity, and accordingly, we do not evaluate the first prong of the qualified immunity test. See Cummings, 913 F.3d at 1239.

B. ADA Claim

The district court dismissed Ms. Crane‘s ADA claim after concluding it did not survive Mr. Tucker‘s death under state law, a result Ms. Crane disputes.11 We need not address this issue—or the parties’ broader arguments about federal common law, our circuit‘s precedent, or the correct interpretation of Utah‘s survival statute—to resolve this claim. Instead, we conclude the Amended Complaint fails to state a claim under Title II of the ADA.12 See United States v. Chavez, 976 F.3d 1178, 1203 n.17 (10th Cir. 2020) (noting this court can “affirm on any ground adequately supported by the record” (quotation marks omitted)).

Title II of the ADA provides “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “State prisons fall squarely within [Title II‘s] statutory definition of ‘public entity.‘” Pa. Dep‘t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To state a claim under Title II of the ADA, a plaintiff must allege: (1) he is “a qualified individual with a disability”; (2) he “was either excluded from participation in or denied the benefits of some public entity‘s services, programs, or activities, or was otherwise discriminated against by the public entity”; and (3) “such exclusion, denial of benefits, or discrimination was by reason of the plaintiff‘s disability.” J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir. 2016) (quotation marks omitted). Failure to satisfy any of these prongs defeats an ADA claim.13 See id. (stating, in the context of a motion for summary judgment, “a viable claim . . . require[s] proof of the foregoing three elements”); see also Cohon ex rel. Bass v. N.M. Dep‘t of Health, 646 F.3d 717, 725 (10th Cir. 2011) (affirming district court‘s order granting defendants’ motion to dismiss an ADA claim notwithstanding that parties did not dispute the first prong was satisfied).

We typically evaluate claims identically under the ADA and Rehabilitation Act. See Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998). Yet, a point of possible divergence is the different causation standards employed by the two statutes. The Rehabilitation Act prohibits discriminating against qualified individuals “solely by reason of [their] disability.” 29 U.S.C. § 794(a). The ADA, on the other hand, prohibits discriminating against qualified individuals “by reason of such disability.” 42 U.S.C. § 12132. The overwhelming majority of our sibling circuits have declined to import the Rehabilitation Act‘s “solely by reason of” causation standard into ADA claims. See, e.g., Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996); Parker v. Columbia Pictures Indus., 204 F.3d 326, 336–37 (2d Cir. 2000); Baird ex rel. Baird v. Rose, 192 F.3d 462, 469–70 (4th Cir. 1999); Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315 (6th Cir. 2012); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1074 (11th Cir. 1996). Our caselaw, however, is less certain. At times, we have suggested that the “solely by reason of” standard applies to ADA claims. See Fitzgerald v. Corr. Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005). More frequently, we have at least presumed that plaintiffs need only prove their disability was a but-for cause of the alleged discrimination—that is, they need only prove that the alleged discrimination was “by reason of” their disability. See, e.g., Taylor v. Colo. Dep‘t of Health Care Pol‘y & Fin., 811 F.3d 1230, 1233 & n.3 (10th Cir. 2016); J.H. ex rel. J.P. v. Bernalillo Cnty., 806 F.3d 1255, 1260 (10th Cir. 2015; Robertson v. Las Animas Cnty. Sheriff‘s Dep‘t, 500 F.3d 1185, 1193 (10th Cir. 2007). We resolve this tension today by joining our sibling circuits in holding the ADA merely requires the plaintiff‘s disability bе a but-for cause (i.e., “by reason of”) of the discrimination, rather than—as the Rehabilitation Act requires—its sole cause (i.e., “solely by reason of”).

Ms. Crane‘s averments do not permit her to plausibly plead her ADA claim under even the less onerous, but-for standard. The ADA claim, therefore, fails on the third prong. Ms. Crane argues UDC owed Mr. Tucker, who was disabled due to his mental illness, “access to safe, appropriate housing” under ADA regulations. Aplt. Br. at 36 (quoting 28 C.F.R. § 35.152(b)(3)). The Amended Complaint alleges UDC denied Mr. Tucker this housing benefit by “locking him in a solitary cell with an obvious tie-off point and a hanging implement,” which “endangered him.” App. at 55. Ms. Crane contends Mr. Tucker was therefore entitled to two reasonable modifications—those “to prevent his suicide and those to keep him out of solitary confinement in the first place.” Aplt. Br. at 37. And because these modifications never occurred, Ms. Crane alleges a trier of fact could reasonably infer UDC denied Mr. Tucker benefits he was owed. Even accepting all of these averments as true for purposes of analysis, the Amended Complaint fails to state an ADA claim.

Under the third prong of Title II of the ADA, the Amended Complaint must plausibly allege UDC denied Mr. Tucker appropriate housing “by reason of [his] disability.” J.V., 813 F.3d at 1295. Yet, the Amended Complaint fails to allege Mr. Tucker‘s disability wаs a but-for cause of the purported discrimination.

The closest the Amended Complaint comes to alleging this causal link is claiming the “CUCF Defendants knew . . . that [Mr. Tucker‘s] conduct for which he was being punished . . . and placed in isolation was a product of his brain damage, low IQ, and mental illnesses.” App. at 36–37. But this allegation is accompanied by only one factual averment, which appears to belie causality. Ms. Crane alleges the CUCF Defendants disciplined Mr. Tucker without first enlisting mental health staff “to determine if [his] conduct for which he was being punished by being placed in isolation were connected to [his] mental illnesses.” Id. at 33.

C. Unnecessary Rigor Claims

Section 1367(c) enables a federal district court to forgo exercising supplemental jurisdiction over a related state law claim if “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (quotation marks omitted). Ms. Crane does not allege the district court abused its discretion in denying supplemental jurisdiction after dismissing her federal claims. See Aplt. Br. at 42 (“As this Court should reverse the district court‘s dismissal of her claims under the Eighth Amendment and the ADA, it should reverse the dismissal of her state law claim as well because supplemental jurisdiction under 28 U.S.C. § 1367 is appropriate.”). Because we affirm the district court‘s decision to dismiss Ms. Crane‘s federal claims, and Ms. Crane does not argue the district court abused its discretion, we also affirm its dismissal of the unnecessary rigor claim without prejudice.

III. CONCLUSION

Qualified immunity shields the CUCF Defendants from Ms. Crane‘s Eighth Amendment claims, the Amended Complaint fails to state a plausible claim for relief under Title II of the ADA, and the district court appropriately declined to exercise supplemental jurisdiction over Ms. Crane‘s state constitutional claim. We AFFIRM the district court‘s order.

Crane v. Utah Department of Corrections, et al., No. 20-4032

BACHARACH, J., concurring.

Like the majority, I would affirm the district court‘s rulings. I agree with the majority‘s discussion of the claims under the Americans with Disabilities Act, the Rehabilitation Act, and the Utah Constitution. And I largely agree with the majority‘s discussion of the Eighth Amendment claims involving confinement in cells facilitating suicide. But I would take a different approach toward the Eighth Amendment claims involving lengthy and punitive isolation of mentally ill inmates.

On these claims, the majority declines to consider Ms. Crane‘s

  • reliance on a “sliding scale” to establish Mr. Tucker‘s right against punitive isolation and
  • claim of deliberate indifference to a ‍​​‌‌​‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​‌​​​‌‌​‌‌​‌‌​‌​​​‌​​​‌‌‌‍substantial risk of suicide under Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015).

I would consider these arguments and reject them on the merits.

I. The alleged constitutional right against lengthy, punitive isolation is not clearly established under a sliding scale of egregiousness.

Ms. Crane could overcome qualified immunity by showing the violаtion of a clearly established constitutional right. See Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017) (stating that a right is clearly established when a prior case involves “materially similar conduct” or “applies ‘with obvious clarity‘”) (quoting Est. of Reat v. Rodriguez, 824 F.3d 960, 964-65 (10th Cir. 2016)). In determining the clarity of a constitutional right, we apply a sliding scale. Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Under this sliding scale, the required specificity of the case law turns on the egregiousness of the conduct. Id. When the conduct is obviously egregious, even precedents with general principles might create a clearly established right. Id. On the other hand, greater specificity in the case law is required when the conduct is less egregious. Id.1

The majority states that Ms. Crane has not provided a rationale for softening the burden to present factually similar opinions. Maj. Op. at 26. But Ms. Crane argued that we should apply a sliding scale, and our precedents require it. See Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (“[O]ur circuit uses a sliding scale to determine when law is clearly established.”). So I would apply our sliding scale when considering whether Mr. Tucker‘s right is clearly established. Application of the sliding scale turns on the egregiousness of the conduct. Egregiousness can sometimes entail subjective judgments. So if we were to apply our own opinions on the egregiousness, we might differ in our assessments. No consensus exists among judges now, and none existed in 2014 (when Mr. Tucker died).

Only one circuit court has addressed whether mentally ill inmates had a clearly established right in 2014 to avoid lоng-term solitary confinement: Latson v. Clarke, 794 F. App‘x 266 (4th Cir. 2019) (unpublished). There the Fourth Circuit concluded that placement in solitary confinement might have violated the Eighth Amendment when the prisoner suffered from post-traumatic stress disorder, autism spectrum disorder, and intellectual disability. 794 F. App‘x at 270. But the court added that “this [had not been] the state of the law at the time of [the prisoner‘s] incarceration” in 2014–2015. Id. The court reasoned that prior case law had held that “long-term solitary confinement did not violate the Eighth Amendment.” Id. So reasonable prison officials might not have recognized a possible Eighth Amendment violation when the prisoner was put in solitary confinement. Id.

The Latson panel‘s reasoning is persuasive. Before Mr. Tucker committed suicide, some courts had held that imposing long-term solitary confinement for serious violations of prison rules does not violate the Eighth Amendment. See, e.g., Bass v. Perrin, 170 F.3d 1312, 1315–16 (11th Cir. 1999) (concluding that the Eighth Amendment did not prohibit imposing years of indoor solitary confinement on prisoners who had been convicted of violent crimes, were serving a life sentence with no opportunity for release in the foreseeable future, were continuing to engage in violent behavior, and had attempted to escape from prison). And we held after Mr. Tucker‘s suicide that

These opinions did not address an inmate with a major mental illness. But a panel of our court held that the Eighth Amendment doesn‘t necessarily require screening for mental illness before assigning a person to solitary confinement. Graham v. Van Der Veur, 986 F.2d 1427, 1992 WL 401584, at *4 (10th Cir. 1992) (unpublished table decision). And before Mr. Tucker committed suicide, the Eighth Circuit had held that keeping a mentally ill person in solitary confinement for nine months had not violated the Eighth Amendment. Orr v. Larkins, 610 F.3d 1032, 1034–35 (8th Cir. 2010) (per curiam).

Putting these opinions together,3 a prison official could have reasonably thought that the Eighth Amendment would not prohibit repeated placements of a mentally ill person in solitary confinement. When Mr. Tucker died, prison officials could have seen that

  • judges in our circuit had held that the Constitution didn‘t require screening for mental illness before imposing solitary confinement,
  • judges elsewhere had held that lengthy solitary confinement didn‘t violate the Eighth Amendment, and
  • judges in another circuit had concluded that the Eighth Amendment didn‘t prevent placement of a mentally ill inmate in solitary confinement for nine months.

So under a sliding scale, placement of Mr. Tucker in punitive isolation would not have been sufficiently egregious to loosen the need for an applicable precedent. See Hardaway v. Meyerhoff, 734 F.3d 740, 745 (7th Cir. 2013) (concluding that prison officials had qualified immunity because the circuit‘s earlier precedents had been ambiguous on the constitutionality of a disciplinary segregation for 182 days when combined with a solid metal door, a confrontational cellmate, and limited access to a shower and recreationаl yard); see also Porter v. Pa. Dep‘t of Corrs., 974 F.3d 431, 451 (3d Cir. 2020) (concluding that the defendants were entitled to qualified immunity because only one out-of-circuit court had held that the Eighth Amendment prohibited prolonged solitary confinement for an inmate on death row).

II. Though Mr. Tucker had a clearly established right against deliberate indifference to a substantial risk of suicide, Ms. Crane has not adequately alleged a violation of that right.

When Mr. Tucker committed suicide, our precedent clearly prohibited officials from acting with deliberate indifference toward an inmate‘s substantial risk of suicide. But Ms. Crane did not plausibly allege recognition of a substantial risk that Mr. Tucker would commit suicide.

A. By the time of Mr. Tucker‘s death, our precedent had clearly established a right against deliberate indifference to a substantial risk of suicide.

We stated in Cox v. Glanz that our precedents had long held that prison officials incur liability for deliberate indifference if they know “that a specific inmate presents a substantial risk of suicide” and disregard that risk. Cox v. Glanz, 800 F.3d 1231, 1249–50 (10th Cir. 2015) (citing Est. of Hocker v. Walsh, 22 F.3d 995, 1000 (10th Cir. 1994) and Barrie v. Grand Cnty., 119 F.3d 862, 868–69 (10th Cir. 1997)).

The majority does not consider this theory because Ms. Crane did not cite Cox in her opening brief. Maj. Op. at 12 n.7.4 This omission bears significance to the majority, which states that “the plaintiff bears the burden of citing to us what he thinks constitutes clearly established law.” Id. at 11 (citation omitted). But the plaintiff bears the burden only to present an argument for a clearly established right.

Ms. Crane did that. Aрpellant‘s Reply Br. at 1 (arguing that the defendants ignore Ms. Crane‘s allegations in the complaint regarding knowledge of, and deliberate indifference to, Mr. Tucker‘s risk of suicide). Even the defendants acknowledge Ms. Crane‘s reliance on cases providing liability under the Eighth Amendment for a prison suicide when the official knows and disregards “a substantial and significant risk that the defendant may imminently seek to commit suicide.” Appellees’ Answer Br. at 21. Regardless of whether Ms. Crane cited Cox for this argument, we must consider the applicable case law. See Elder v. Holloway, 510 U.S. 510, 516 (1994) (stating that a court reviewing qualified immunity should use its “full knowledge of its own [and other relevant] precedents”) (alteration in original) (quoting Davis v. Scherer, 468 U.S. 183, 192 n.9 (1984)); Williams v. Hansen, 5 F.4th 1129, 1133 (10th Cir. 2021) (stating that our review on qualified immunity isn‘t limited to the cited opinions because we must consider “all relevant case law”); see also Cortez v. McCauley, 478 F.3d 1108, 1122 n.19 (10th Cir. 2007) (en banc) (“While it is true that Plaintiffs should cite to what constitutes clearly established law, we are not restricted to the cases cited by them.”) (citing Elder v. Holloway, 510 U.S. 510, 513–14 (1994)). So I would consider Ms. Crane‘s theory of deliberate indifference to a substantial risk of suicide.5

B. The right against deliberate indifference to a substantial risk of suicide does not apply here.

When prison officials recognize a substantial risk of suicide, they must take reasonable steps to protect the inmate. Cox v. Glanz, 800 F.3d 1231, 1248–49 (10th Cir. 2015). For a violation of this right, Ms. Crane must allege each individual defendant‘s knowledge of Mr. Tucker‘s substantial risk of suicide. Id. at 1249. I would affirm because Ms. Crane failed to plausibly allege any defendant‘s knowledge of a substantial risk of suicide.

1. Many of Ms. Crane‘s key allegations are conclusory.

The district court determined that

  • the individual defendants had lacked “notice of mental illness or suicidal inclination” and
  • Ms. Crane had not alleged the defendants’ personal knowledge of Mr. Tucker‘s psychiatric history or his recent diagnosis of mental illness.

Appellant‘s App‘x at 137.

On appeal, Ms. Crane argues that she plausibly alleged the defendants’ knowledge. The defendants characterized these allegations as conclusory. I agree with the defendants for six of the allegations:

  1. The individual defendants “knew [solitary confinement] would cause or exacerbate [Mr. Tucker‘s] well-documented brain damage, severe mental illness, mental anguish, helplessness, depression, anxiety, and suicidal tendencies.” Appellant‘s App‘x at 36–37 ¶ 82.
  2. The individual defendants “were aware that [Mr. Tucker] was already suffering from mental illness, that [Mr. Tucker] had repeatedly complained he was being mistreated by staff, and that [Mr. Tucker] was experiencing significant and lasting injury.” Id. at 39 ¶ 89.6
  3. Officer “Taylor should have known and did know that [Mr. Tucker] had a long history of severe mental health conditions including brain damage, unspecified psychosis and major depressive disorder and was under treatment for those conditions at the timе [Officer] Taylor imposed back-to-back sentences of 20 days in punitive isolation.” Id. at 43 ¶ 103.
  4. Officer Taylor “should have known, and did know, that holding [Mr. Tucker] in punitive isolation was likely to, and did, cause or exacerbate [his] severe mental illness . . . and risk of suicide.” Id.
  5. Officer Cox “knew . . . that [Mr. Tucker] had a long history of severe mental health conditions[,] . . . was under treatment . . . [,] and that prolonged periods of isolation tortured [Mr. Tucker] and would cause or exacerbate severe mental illness . . . and suicidal tendencies.” Id. at 45 ¶ 114.
  6. “On the day of [Mr. Tucker‘s] death, [Officer] Cox should have known, and did know, that [Mr. Tucker] was a significantly increased suicide risk.” Id. at 45 ¶ 115.

The defendants liken these allegations to complaints deemed conclusory in

As these opinions show, plaintiffs must do more than allege knowledge; they must allege facts making such knowledge plausible.

First, in Ashcroft v. Iqbal, a prisoner sued under § 1983, asserting a Fourteenth Amendment claim premised on discrimination. Id. at 663. He pleaded that the defendants had “‘kn[own] of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.‘” Id. at 680 (citation omitted). The Supreme Court held that these allegations had amounted to a “formulaic recitation of the elements” of the claim. Id. at 681.

Second, in Vega v. Davis, a prisoner alleged that a warden had violated the Eighth Amendment because he “knew about or was willfully ignorant of [the inmate‘s] medical needs.” Id. at 618–19. We regarded this allegation as conclusory. Id.

Ms. Crane‘s allegations resembled those in Iqbal, asserting knowledge but failing to say how or when the defendants had learned of the underlying fact. In Iqbal, that fact involved discriminatory conditions of confinement; here the fact involves Mr. Tucker‘s suicide risk. Ms. Crane said that Mr. Tucker‘s mental ‍​​‌‌​‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​‌​​​‌‌​‌‌​‌‌​‌​​​‌​​​‌‌‌‍disability and illnesses had been “well-documented,” but she did not allege how the defendants would have recognized Mr. Tucker‘s suicide risk—whether

  • Mr. Tucker himself told the defendants,
  • the defendants had access to and reviewed Mr. Tucker‘s medical records or spoke with medical staff,7 or
  • Mr. Tucker‘s behavior simply made his suicide risk apparent.

See Vega v. Davis, 572 F. App‘x 611, 618 (10th Cir. 2014) (unpublished) (holding that the plaintiff‘s allegation of the existence of prison medical records does not entitle the plaintiff to the inference that the warden read them). So Ms. Crane‘s allegations of knowledge are conclusory.

2. Officer Taylor

Ms. Crane points to two other allegations about Officer Taylor:

  1. Officer Taylor imposed “inappropriate and extremely disproportionate discipline for relatively minor offenses,” which led to a higher risk of Mr. Tucker‘s suicide.
  2. Officer Taylor did not “follow policies to obtain recommendations from [Mr. Tucker‘s] mental health treatment provider when sentencing [him] to his final periods of isolation.”

Appellant‘s App‘x at 43.

Officer Taylor would have been deliberately indifferent only if he had known of Mr. Tucker‘s “substantial risk of suicide.” Cox v. Glanz, 800 F.3d 1231, 1249 (10th Cir. 2015). But Ms. Crane didn‘t allege how Officer Taylor would have known that Mr. Tucker had a substantial risk of suicide. See Part 2(A)(1), above. No one could reasonably infer such knowledge from Officer Taylor‘s role as a hearing officer. So even if we credit these allegations, they would not have adequately alleged deliberate indifference.

3. Officer Cox

Beyond the allegations discussed earlier, Ms. Crane made two other allegations against Officer Cox. But these allegations don‘t suggest recognition of a substantial risk of suicide.

First, Ms. Crane alleged that Officer Cox had entered Mr. Tucker‘s cell and refused to permit out-of-cell exercise that day. No one could reasonably infer notice of a substantial suicide risk from this allegation about the inability to exercise one day.

Second, Ms. Crane alleged that Officer Cox had known that Mr. Tucker “hung a towel over the window of his cell.” Appellant‘s App‘x at 45. But Ms. Crane did not allege that Officer Cox had recognized the draping of a towel as a sign that Mr. Tucker might try to commit suicide. See Estate of Novack ex rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000) (stating that freaky behavior doesn‘t impute awareness of a substantial risk of suicide).

These two allegations don‘t suggest knowledge on the part of Officer Cox.

4. Warden Bigelow and Director Garden

Ms. Crane did not point to any other allegations that Warden Bigelow and Director Garden had recognized a substantial risk of suicide.

For supervisory liability under § 1983, a plaintiff must link supervisors to the constitutional violation through

  • their personal involvement,
  • a sufficient causal connection, and
  • a culpable state of mind.

Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015) (quoting Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). A plaintiff can often satisfy these three elements through “[p]roof of a supervisor‘s personal direction or knowledge of and acquiescence in” the continued operation of unconstitutional policies. Dodds, 614 F.3d at 1196–97 (citing Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996), and Woodward v. City of Worland, 977 F.2d 1392, 1399–1400 n.11 (10th Cir. 1992)).

But Ms. Crane does not allege that Warden Bigelow or Director Garden directed any actions toward Mr. Tucker. The only pertinent allegations are conclusory. See Appellant‘s App‘x at 20–21, 47, 51–52.8

* * *

In my view, we should consider all of the pertinent case law, including our recognition of a sliding scale and Cox. But reasonable prison officials might regard long stints of solitary confinement as constitutional even for a mentally ill prisoner. Given the lack of a judicial consensus in 2014, how could a prison official have regarded a possible constitutional violation as obvious?

And in my view, Ms. Crane failed to allege that any of the individual defendants recognized a substantial suicide risk. So she did not state a claim that would trigger liability under Cox.

Notes

1
Officer Cox’s first name is not in the record on appeal. We‘ve questioned the viability of the sliding scale under Supreme Court authority. Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10 (10th Cir. 2017) (citing Aldaba ex rel. Leija v. Pickens, 844 F.3d 870, 874 n.1 (10th Cir. 2016)). But we‘ve not overruled our precedent recognizing the sliding scale. As a result, two judges recently concluded that our circuit‘s case law continues to require use of the sliding scale. See Contreras ex rel. A.L. v. Dona Ana Cnty. Bd. Of Cnty. Comm‘rs, 965 F.3d 1114, 1123 (10th Cir. 2020) (per curiam) (Carson, J., concurring in part and concurring in the judgment) (“With no case overruling it, the sliding-scale approach lives in this Circuit.”), cert. denied, 141 S. Ct. 1382 (2021); id. at 1135 n.4 (Baldock, J., concurring in part and dissenting in part) (stating that the sliding scale continues to be “the law in this circuit” because “[t]he Supreme Court has neither directly commented upon nor оverruled our sliding-scale approach”).
2
For purposes of this appeal, we accept all facts Ms. Crane pleaded as true, and we grant all reasonable inferences from the pleadings in her favor. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (“We review a district court’s grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12(b)(6) motion. [W]e accept all faсts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.” (alteration in original) (quotation marks omitted)). Unpublished opinions can show that the law was not clearly established. See Apodaca v. Raemisch, 864 F.3d 1071, 1078 (10th Cir. 2017) (relying in part on an unpublished case to show that the officials reasonably embraced a different interpretation of the law from the plaintiffs); Quinn v. Young, 780 F.3d 998, 1012 n.4 (10th Cir. 2015) (same); see also Denno v. Sch. Bd. of Volusia Cnty., 218 F.3d 1267, 1274 (11th Cir. 2000) (“We have noted that it would be inappropriate to hold government officials to a higher level of knowledge and understanding of the legal landscape than the knowledge and understanding displayed by judges whose everyday business it is to decipher the meaning of judicial opinions.”).
3
The allegations of abuse do not concern either the Defendants or the issues remaining on appeal. They were lodged against five Defendants since dismissed from the case. See App. at 46–53. Ms. Crane also relies on rulings by several district courts. Appellant’s Opening Br. at 15. But these rulings did not clearly establish a constitutional right. See Lowe v. Raemisch, 864 F.3d 1205, 1211 (10th Cir. 2017) (noting that a district court opinion was not controlling in any jurisdiction in determining whether a constitutional right was clearly established) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
4
We adopt the convention used by the district court and the parties of referring to both Ms. Crane’s ADA and Rehabilitation Act claims as her ‘ADA claim’ and analyze them as such. With few limited exceptions, courts evaluate claims under these Acts identically. One such exception is the additional requirement under the Rehabilitation Act that entities receive federal funding. See Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998). Another exception involves the different causation standards articulated by each statute. See infra, Part II.B. The majority also reasons that Mr. Tucker had committed suicide before we decided Cox. Maj. Op. at 12 n.7. In Cox, however, we recognized that the state-of-mind requirement in jail-suicide cases had “been settled since at least the mid-1990s.” Cox v. Glanz, 800 F.3d 1231, 1248 (10th Cir. 2015). Cox thus sheds light on the status of our precedents by 2014 (when Mr. Tucker committed suicide).
5
Ms. Crane has not challenged the dismissal of any DCFS Defendant on appeal. The majority agrees that Ms. Crane failed “to allege a constitutional violation even under Cox.” Maj. Op. at 12 n.7.
6
Ms. Crane argues it is typically inappropriate to resolve qualified immunity cases at the Rule 12 stage. See Oral Arg. at 11:57–12:09 (asserting “it is very rare that a motion to dismiss based on qualified immunity is appropriate”). This position, however, conflicts with Supreme Court guidance to “resolv[e] immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“[T]he ‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that ‘“insubstantial claims” against Ms. Crane also alleged that “[i]t should have been obvious to the [prison officials] and to any reasonablе person that the conditions imposed on [Mr. Tucker] would cause tremendous mental anguish, suffering, pain, and a much higher risk of suicide.” Appellant’s App’x at 39 ¶ 89. But Ms. Crane bears the burden to allege actual knowledge, not merely constructive knowledge. See Cox v. Glanz, 800 F.3d 1231, 1249 (10th Cir. 2015).
7
Before the district court, Ms. Crane argued the operative right was provided by Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015). In Cox, we explained that Eighth Amendment claims based on a jail suicide “must be judged against the deliberate indifference to serious medical needs test.” 800 F.3d at 1248 (quotation marks omitted). We then held prison officials satisfied the subjective component of the deliberate indifference test only when they failed “to take reasonable steps to protect” an inmate from suicide despite having “actual knowledge . . . of an individual inmate’s substantial risk of suicide.” Id. at 1248–49 (internal quotation marks omitted). In the district court, Ms. Crane asserted the deliberate indifference standard for Eighth Amendment liability, as applied to a prison suicide in Cox, was the clearly established law the CUCF Defendants violated here. On appeal, however, she does not cite or rely on Cox, and we do not consider it. See generally Aplt. Br.

In any event, we agree with the concurrence that Ms. Crane could not prevail under a traditional deliberate indifference theory because she fails to allege each defendant had actual knowledge of Mr. Tucker’s substantial risk of suicide. See Concurrence at 8–14. Ms. Crane therefore fails to allege a constitutional violation even under Cox. And because we decided Cox after Mr. Tucker’s suicide, it could not have notified the CUCF Defendants that their alleged conduct was unconstitutional in any event. See Elder v. Holloway, 510 U.S. 510, 516 (1994) (instructing courts to review “all relevant authority” to determine “[w]hether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit”) (emphasis added). Finally, Ms. Crane does not argue the caselaw undergirding Cox—specifically Estelle v. Gamble, 429 U.S. 97 (1976) and Farmer v. Brennan, 511 U.S. 825 (1994)—is similar enough to the circumstances here to provide clearly established law.

For the ADA claim, Ms. Crane alleged that prison officials had “reviewed [Mr. Tucker’s] personal and medical history.” Appellant’s App’x at 54. For two reasons, this allegation does not imply awareness of Mr. Tucker’s substantial suicide risk:
  1. This allegation came later in the pleading and was not incorporated into the § 1983 claims. See Appellant’s App’x at 35, ‍​​‌‌​‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​‌​​​‌‌​‌‌​‌‌​‌​​​‌​​​‌‌‌‍42, 44 (each claim incorporating by reference “the allegations contained in the preceding paragraphs”) (emphasis added).
  2. The complaint does not suggest that Mr. Tucker’s prison medical records would have shown a substantial suicide risk. See id. at 31 (noting that a diagnosis of “major depressive disorder” does not necessarily involve suicidality); id. at 25–27 (failing to allege that Mr. Tucker’s self-mutilation and suicide attempts had appeared in his prison medical records).
8
Ms. Crane cites Wilson v. Seiter, 501 U.S. 294 (1991), for the proposition that “[s]ome combinations of inhumane conditions may establish an Eighth Amendment violation when each alone would not do so.” Aplt. Br. at 9. In Wilson, the Court held an Eighth Amendment violation could be established by combining multiple “conditions of confinement . . . when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets.” Wilson, 501 U.S. at 304. There, the Court was evaluating whether the objective component of the deliberate indifference test for Eighth Amendment liability could be satisfied by a combination of prison conditions, not whether different conditions could be combined to clearly establish the illegality of specific conduct for qualified immunity purposes. The latter interpretation of Wilson advanced by Ms. Crane seems to conflict with the Court’s repeated instruction that clearly established law must render the violative nature of particular conduct beyond debate. See Mullenix v. Luna, 577 U.S. 7, 12 (2015). Under the circumstances here, however, we need not determine whether a plaintiff can combine different lines of precedent to clearly establish the illegality of a defendant’s specific conduct. That is because, as we shall explain, neither line of cases Ms. Crane presents clearly establishes the constitutional rights she claims. Ms. Crane argues that this conclusion burdens her “with an unworkable pleading standard, as this information is simply impossible to obtain before discovery with Tucker dead.” Appellant’s Reply Br. 12. But “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
9
The § 1983 claims alleged Fourteenth Amendment violations. Unlike convicted prisoners whose right to be free from cruel and unusual punishment is protected by the Eighth Amendment, the Fourteenth Amendment’s due process protections prohibit the state from inflicting punishment on pretrial detainees. See Bell v. Wolfish, 441 U.S. 520, 535 (1979); Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019).
10
Ms. Crane also relies on the Middle District of Alabama’s decision in In Braggs v. Dunn, 257 F. Supp. 3d 1171, 1267 (M.D. Ala. 2017). As discussed in Part II.A.1.b., supra, however, a district court decision cannot provide clearly established law for purposes of qualified immunity.
11
Both the ADA and the Rehabilitation Acts are silent on whether claims brought under them abate at the time of a claimant’s death. See 42 U.S.C. § 12101-12213 (ADA) and 29 U.S.C. §§ 701-796 (Rehabilitation Act).
12
Ms. Crane argues Defendants conceded this issue in the district court “by not refuting or even mentioning any оf [Ms.] Crane’s responses to their initial arguments” about the plausibility of Ms. Crane’s ADA claim in their Reply in Support of Defendants’ Motion for Judgment on the Pleadings. Aplt. Br. at 29–30. She is mistaken. As Defendants note, they “raised and fully argued the point in [their] motion for judgment on the pleadings, and reply briefs are optional.” Aple. Br. at 66 (citing App. at 79–98). Ms. Crane does not cite any binding authority for her argument.
13
Ms. Crane satisfies the prong unique to the Rehabilitation Act by plausibly alleging UDC receives federal funds. See App. at 53; see also Cohon ex rel. Bass v. N.M. Dep‘t of Health, 646 F.3d 717, 725 (10th Cir. 2011) (describing the elements of a claim under the Rehabilitation Act, including the requirement that “the program or activity in question receives federal financial assistance” (quotation marks omitted)).