For nearly a quarter of a century, I have been writing for The Voice about federal criminal cases. For my 250th – and last – column, I found a federal civil rights case with facts that are so beyond the pale that I wanted to bring them to your attention. On November 2, 2020, the Supreme Court, in a case from the United States Court of Appeals for the Fifth Circuit, held, per curiam and without oral argument, that
(1) The Court of Appeals properly ruled that the conditions of confinement alleged by Mr. Taylor, whereby for six full days he was confined in a pair of shockingly unsanitary cells, the first of which was covered nearly floor to ceiling in “massive amounts” of feces and the second of which was frigidly cold and equipped with only a clogged floor drain to dispose of bodily wastes, violated the Eighth Amendment’s prohibition on cruel and unusual punishments; but
(2) The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional and, thus, the Court of Appeals erred in granting the official qualified immunity with respect to Mr. Taylor’s claims.
Taylor v. Riojas 1
We are accustomed to the horrible fact situations that we find in some of our criminal cases. It just goes with the territory. Taylor, though, is concerned with the abuse that an inmate in a Texas prison suffered at the hands of his prison guards. We should all hope that nothing like this ever happens to one of our clients.
In their Petition for a Writ of Certiorari, Mr. Taylor’s lawyers included this Statement of the Case:
At the time of the events giving rise to this suit, Petitioner Trent Taylor was incarcerated in the John T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period. Id.
Taylor was transferred to Montford, a psychiatric prison unit, for mental health treatment following a suicide attempt. Electronic Record on Appeal (R.O.A.) 49 Instead of providing that treatment, Respondents stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface— including the floor, ceiling, windows, and walls—was covered in “massive amounts” of human feces belonging to previous occupants. Pet. App. 7a-8a;
R.O.A. 50. The smell was overpowering and could be discerned from the hallway. Pet. App. 8a; R.O.A. 50. Taylor was unable to eat because he feared that any food in the cell would become contaminated. Pet. App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in excrement: One Respondent asked several others whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor asked numerous prison staff members to clean the cell, but they refused. Pet. App. 8a n.8. When Taylor complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all these cells from years of psych patients,” Pet. App. 8a (brackets omitted).
Four days later, Respondents removed Taylor from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a. Montford inmates referred to this cell as “the cold room” because of its frigid temperature; Swaney told Taylor he hoped Taylor would “f***ing freeze” there. Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture. Pet. App. 8a. It contained only a drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.
Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he needed to urinate, he would not be escorted to the restroom but should urinate into the backed up drain. Pet. App. 8a. Taylor refused, not wanting to add to the pool of sewage in which he had to sleep naked. Pet. App. 8a-9a. Instead, Taylor avoided urinating for 24 hours until he involuntarily urinated on himself; he attempted to use the clogged drain as instructed, but Taylor’s urine “mix[ed] with the raw sewage and r[a]n all over [his] feet.” Pet. Appl. 91, 19a (alterations in original). As a result of holding his urine in a bacteria-laden environment for an extended period, Taylor developed a distended bladder required catheterization.2
The Supreme Court’s per curiam opinion reads as follows:
[Background]
Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in ‘ “massive amounts” of feces’: all over the floor, the ceiling, the window, the walls, and even ‘ “packed inside the water faucet.” ’ Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.
[The Eighth Amendment]
The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
[The Fifth Circuit Concluded That the Prison Officials Did Not Have Fair Warning]
But, based on its assessment that ‘[t]he law wasn’t clearly established’ that ‘prisoners couldn’t be housed in cells teeming with human waste’ ‘for only six days,’ the court concluded that the prison officials responsible for Taylor’s confinement did not have ‘ “fair warning” that their specific acts were unconstitutional.’ 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
[The Fifth Circuit Erred in Granting Qualified Immunity]
The Fifth Circuit erred in granting the officers qualified immunity on this basis. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.’ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct.
596, 160 L.Ed.2d 583 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that ‘ “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question”’ (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))); 536 U.S. at 745, 122 S.Ct. 2508 (holding that ‘[t]he obvious cruelty inherent’ in putting inmates in certain wantonly ‘degrading and dangerous’ situations provides officers ‘with some notice that their alleged conduct violate[s]’ the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was ‘ “going to have a long weekend” ’); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would ‘ “f***ing freeze” ’).
[Conclusion]
Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.
[Note: Justice Barrett took no part in the consideration order decision of this case. Justice Thomas dissented, without written opinion. Justice Alito concurred in the judgment, with a written opinion.][The Prequel to the Supreme Court’s Opinion in Taylor]
In 2014, Trent Taylor, a Texas inmate who was serving a sentence for robbery, began his journey through the federal courts. He filed, pro se, a civil rights complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of Texas. Mr. Taylor named eleven correctional officers and/or prison officials as defendants.
In his complaint, Mr. Taylor raised – among other issues – a cell conditions issue. All of the defendants relied on the affirmative defense of qualified immunity and moved for summary judgment. In the district court’s order are the following two sentences:
The Court finds that although the conditions of Plaintiff’s confinement may have been quite uncomfortable during the days he was held in the two cells in question, the conditions did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Accordingly, Plaintiff has failed to rebut Defendants’ assertion of qualified immunity on his conditions-of-confinement claim, and their Motions for Summary Judgment should be granted.3 (emphasis added)
After the district court granted summary judgment in favor of the defendants, Mr. Taylor appealed, pro se, to the United States Court of Appeals for the Fifth Circuit. On December 20, 2019, a panel of the Circuit held in Taylor v. Stevens, inter alia, that “[1] it had jurisdiction over appeal;… and, [3] correctional officers were entitled to qualified immunity from conditions-of- confinement claim; …”
The Court’s opinion reads, in brief part, as follows:
Taylor repeatedly alleged that the defendants knew that his cells were covered in feces and urine and that he had an overflowing sewage drain in his seclusion cell.
‘The risk’ posed by Taylor’s exposure to bodily waste ‘was obvious.’ And the risk was especially obvious here, as the defendants forced Taylor to sleep naked on a urine-soaked floor. Taylor also alleged that the defendants failed to remedy the paltry conditions, so he has shown factual disputes on deliberate indifference. In sum, Taylor has met his burden at the first QI prong to show that his Eighth Amendment rights were violated. See Arenas, 922 F.3d at 620.
* * *
The second prong of QI asks ‘whether the right was clearly established at the time of the violation.’
* * *
The ‘salient question,’ therefore, is whether the defendants had ‘fair warning’ that their specific actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). (emphasis added)
* * *
It was therefore not ‘beyond debate’ that the defendants broke the law. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. They weren’t on ‘fair warning’ that their specific acts were unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.4
Lawyers to the Rescue
After going 0 for 2 as a pro se litigant, Mr. Taylor’s luck changed for the better. Samuel Weiss, of RIGHTS BEHIND BARS in Washington, D.C., read the Fifth Circuit’s opinion in Taylor and decided to come to Texas and meet with Mr. Taylor. He did so and offered to represent him pro bono to seek relief at the Supreme Court. Mr. Taylor was pleased to become his newest client and accepted Mr. Weiss’ generous offer.
When Mr. Weiss returned to Washington, D.C., he met with his board of directors that included an associate with the Orrick, Herrington and Sutcliffe firm’s Washington, D.C. office. Orrick is a global firm with some 1,100 lawyers in the United States and in at least 12 other countries. At that time, Kelsi Brown Corkran was the head of U.S. Supreme Court practice at Orrick. After a meeting with Mr. Weiss, the decision was made that Orrick lawyers would join with Mr. Weiss in the representation of Mr. Taylor. At the Supreme Court, Ms. Corkran was counsel of record – with three other Orrick lawyers and Mr. Weiss as Mr. Taylor’s appellate team.
Ms. Corkran is now a Pro Bono Senior Fellow at Georgetown University’s Law Center’s Institute for Constitutional Advocacy and Protection. In talking with her about Taylor, she mentioned that this was the first time in 16 years that the Supreme Court has denied qualified immunity to a state official in a § 1983 case. For those representing plaintiffs or defendants in § 1983 cases, it is important to know that Taylor is already being cited in the trials of these cases.
My Thoughts
- Congratulations to Mr. Taylor’s appellate team for their successful representation of him. It is impressive to see this pooling of talent on behalf of an indigent Texas inmate.
- Over the years, some of our larger Texas law firms have committed their substantial legal resources to the representation of indigent inmates. It would be wonderful if more of these firms would rise to the challenge. Perhaps Taylor will inspire them to do so. If they do, they should get recognition for their efforts.
- Man’s Inhumanity to Man were the first words that came to mind as I was reading Taylor.
- I would have at least these questions:
- How many, if any, prison employees – in whatever capacity – were disciplined because of the abuse that Mr. Taylor suffered?
- How many other inmates at the Montford Unit endured the same cell conditions as Taylor?
- What, if any, remedial action has been taken by prison officials in response to Taylor’s original complaints or to the Supreme Court’s opinion?
- What, if anything, has the Texas Department of Criminal Justice done to address the issues raised by Mr. Taylor?
- I am surprised that Taylor has not been picked up by the print media. This is the kind of case that The Dallas Morning News and the Houston Chronicle would have jumped all over 25 or 30 years ago. The days of the investigative reporter may be over.
TCDLA Thanks You, Buck!
All previous installments in “The Federal Corner” series can be found online by logging into your TCDLA member account and visiting voiceforthedefenseonline.com.
Don’t despair–”The Federal Corner” will continue in future issues of the Voice. Our editors are busily compiling a team of authors with federal experience to contribute to this important topic.
If you have federal experience and would like to contribute, please reach out to one of our editors:
Sarah Roland:
Clay Steadman:
Jeep Darnell:
Amanda Hernandez:
Some Reflections and Some Thank Yous
Buck Files
Writing the “Federal Corner” has been both challenging and rewarding. The challenge has been to find a case for each edition of the VOICE that would be of interest to our members and to the judges who also receive a copy of the magazine. The case would have to be recent and not too long or too complex for me to fit it into the space that I was allocated.
The reward was in what I learned. For each column, I would usually review some six to twenty cases. I always found something in this research that I would never have known if I had not been writing this column.
As the turtle who was sitting on top of the fence post said, “I didn’t get here by myself.” I owe a word of thanks to:
- Our former executive director Joseph Martinez and our current executive director Melissa They supported my efforts enthusiastically. When I turned in my 100th column, Joseph said, “Keep writing.” When I turned in my 200th column or article, Melissa said, “Keep writing.” I listened to each of them, but now it’s time to hang it up. 250 columns or articles is enough for anyone.
- Sarah Roland, the current editor of the VOICE. It is her responsibility to turn out ten editions of the VOICE each year and she has done a magnificent job in working with others to improve the quality of the magazine. Sarah has been a pleasure to work with and I have no doubt that she will be a leader in our association for many years.
- The other editors with whom I have worked. I have good memories of each of you and enjoyed working with you.
- The TCDLA staff, both past and present, with whom I have worked—especially Craig Hattersley.
- The TCDLA members who have called to mention a case to me that I later wrote about.
- The TCDLA members who would have a kind word for me about one of my columns or articles. People who write for a publication are like radio announcers. We never know if anyone is paying attention to what we are trying to communicate.
Footnotes
- 141 S.Ct. 52, 208 L.Ed.2d 164 (2020)
- Taylor v. Riojas Docket Number 19-1261. Proceeding and Orders: Petition for a Writ of Certiorari filed April 24, 2020.
- CA No. 5:14-CV-149-C (USDC-N.D. Texas 2017)
- 946 F.3d 211 (5th Cir. 2019)
