Burkle v. Patrick

Case: 20-50221 Document: 177-1 Page: 1 Date Filed: 03/28/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

March 28, 2025

No. 20-50221

____________ Lyle W. Cayce

Clerk

Jonathan S. Burkle,

Plaintiff—Appellant,

versus

Donte Patrick, as Estate Representative for Anthony J. Patrick;

Disciplinary Captain Richard W. Harvey; Sergeant,

Hughes Unit Corey L. Altum; Correctional Officer Brian

S. Han; Correctional Officer Deborah A. Snyder; Keith

Wheeler; Thomas Brooks,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:18-CV-141

______________________________

Before Jones, Haynes, and Douglas, Circuit Judges.

Edith H. Jones, Circuit Judge: *

Texas prison inmate Burkle was suspected of ingesting contraband

during a contact visit with a family member. Ingesting illegal drugs can cause

_____________________

*

Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited circumstances set

forth in 5th Circuit Rule 47.5.4.

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severe overdoses or even death. For lack of a single cell, he was placed in a

prison shower to avoid harm to himself and secure any illegal baggies that

might pass from his body. He claims it was hot, and he was deprived of food.

(Claiming deprivation of water in a functional shower is absurd on its face.)

Not only was the intent of this temporary placement to protect Burkle’s life,

but his claim of official “deliberate indifference” for at most 30 hours’

confinement borders on frivolity.

As a panel majority, we affirm qualified immunity for four prison

officers who had contact with Burkle during his brief sequestration, i.e.

defendants Snyder, Wheeler, Han and Brooks, but a different majority,

through Judge Douglas’s opinion, reverses the district court’s grant of

qualified immunity to Major Anthony Patrick. 1 For the reasons set forth

below, I would affirm the district court’s summary judgment for all

defendants. 2

The judgment is affirmed in part and reversed and remanded in part.

I.

On suspicion that Burkle had swallowed several balloons containing

illicit drugs, Major Anthony Patrick ordered Burkle’s detention in a shower

cell without food or drinking water until he relinquished the contraband.

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1

Judge Haynes, in other words, concurs to grant qualified immunity to

defendants Snyder, Wheeler, Han and Brooks on the basis that they took orders from Major

Patrick, and she joins Judge Douglas’s opinion insofar as it denies qualified immunity

to Patrick.

2

All concur that summary judgment for Captain Harvey and Sergeant Altum must

be affirmed because no evidence shows that either of them was aware of the nature or length

of Burkle’s detention in the shower.

Major Patrick died in 2023, and this court has substituted as a defendant a

representative of his estate.

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Burkle was placed in the shower cell at approximately 11:45 am on July 1,

2017. The outdoor high was ninety-one degrees that day, and Burkle asserts

it was uncomfortably hot in the shower cell.

Burkle was initially under the supervision of Correctional Officers

Deborah Snyder and Keith Wheeler, but their shifts ended at 5:30 that

afternoon. Following Major Patrick’s orders, neither Snyder nor Wheeler

provided Burkle food or drinking water.

Officers Bryan Han and Thomas Brooks relieved Snyder and Wheeler

and worked until 5:30 am the next morning, July 2. They also refused to

provide Burkle food or drinking water per Major Patrick’s orders. Later that

day, Burkle was found lying unconscious in the shower cell near his vomit

and feces. He was immediately released from the cell and given cold water.

Burkle was in the shower cell for at most thirty hours, was soon after checked

out at the infirmary, and suffered no lasting injury. With a functioning

showerhead, he had access to warm water while he was in the cell.

Burkle sued the prison officials involved in his confinement under

Section 1983 for violating his Eighth Amendment rights. The district court

granted summary judgment in favor of all Defendants. The majority reverses

as to Major Patrick only. That any defendant should have to stand trial in

this case is wrong as a matter of law. The conditions of Burkle’s confinement

were in no way objectively severe enough to violate the Eighth Amendment.

Nor do the facts support a finding that the guards were deliberately

indifferent to Burkle’s health or safety. And, Judge Haynes concurs with

me that the guards are entitled to qualified immunity for following the

major’s orders, as they were required to do.

II.

When determining whether an officer is entitled to qualified

immunity, “[t]he first question is whether the officer violated a

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constitutional right. The second question is whether the ‘right at issue was

“clearly established” at the time of [the] alleged misconduct.’” Morrow v.

Meachum, 917 F.3d 870, 874 (5th Cir. 2019) (citation omitted). I discuss each

element of qualified immunity in turn. The plaintiff has the burden of

negating qualified immunity. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.

2008). As I will show, there is no genuine material dispute of fact and

judgment should be affirmed as a matter of law. Fed. R. Civ. P. 56(a).

We must remember the basic principles, which have been in place for

more than forty years. Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986). Qualified immunity is based on

the “objective legal reasonableness” of the officer’s actions. Harlow v.

Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 2739 (1982). Finally,

“objective legal reasonableness,” in turn, means that “[t]he contours of the

right must be sufficiently clear that a reasonable officer would have

understood that what he is doing violates that right…[I]n light of the pre-

existing law, the unlawfulness must be apparent.” Anderson v. Creighton, 483

U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). Every one of these principles is

violated by holding any of these defendants to stand trial. These officers

were not “plainly incompetent.” They acted to prevent the inmate from

inadvertently overdosing and to prevent drug smuggling into the prison.

Contrary to the hyperbole permeating the competing opinion, not a bit of pre-

existing law made the “unlawfulness” of Burkle’s brief detention

“apparent.”

1.

Burkle’s Eighth Amendment claim against the defendants challenges

the conditions of his confinement. “Like other Eighth Amendment claims,

a conditions-of-confinement claim must satisfy tests for both objective and

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subjective components.” Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998).

The objective component requires proof that the deprivation alleged was,

viewed “objectively, ‘sufficiently serious’”—in other words, “extreme.”

Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994) (citation

omitted) (first quote); Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995,

1000 (1992) (second quote). “The Constitution . . . does not mandate

comfortable prisons, and only those deprivations denying the minimal

civilized measure of life’s necessities are sufficiently grave to form the basis

of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298, 111

S. Ct. 2321, 2324 (1991) (citation and quotation marks omitted). The

subjective component requires proof that the prison official acted with

“‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at

834, 114 S. Ct. at 1977. “To establish deliberate indifference, the prisoner

must show that the defendants (1) were aware of facts from which an

inference of an excessive risk to the prisoner’s health or safety could be drawn

and (2) that they actually drew an inference that such potential for harm

existed.” Rogers v. Boatright, 709 F.3d 403, 407–08 (5th Cir. 2013) (citation

and quotation marks omitted). Both the objective and subjective components

are lacking here.

Burkle contends that he suffered “cruel and unusual punishment”

from an overheated shower cell, unsanitary conditions, or a combination of

both. Judge Douglas’s opinion adds to these complaints the deprivation

of up to three meals over at most 30 hours. 3 These lapses will be addressed,

but to put the matter in context at the outset, Burkle is not suing for an

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3

Exactly how one calculates 30 hours’ of unconstitutional conditions is unclear,

because Burkle was accused of ingesting contraband about noon on July 1, was then placed

in the shower, and was set free the next day after being discovered by two of the defendants.

The record is vague, but I credit Burkle’s assertions for present purposes.

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injunction for himself or to change prison policies—he wants money damages

from Major Patrick. The large majority of cases cited by Judge Douglas

involve claims for injunctive relief against ongoing prison conditions. Burkle

was evaluated medically and mentally within three days of his sequestration

in the shower stall and was found not to have been hurt. The only Supreme

Court case that concerns damages for unconstitutional conditions (decided

three years after Burkle was confined) is Taylor v. Riojas, 592 U.S. 7, 141 S.

Ct. 52 (2020). In Taylor, the plaintiff was placed in a cell covered with feces

for four days, leading him not to eat or drink for fear of contamination in his

food; then he was placed in a frigid cell with no bed and a clogged drain in

lieu of a toilet, which overflowed, leading him to sleep naked in sewage two

more days. Such conditions plainly violated the Eighth Amendment. But the

Court also denied qualified immunity at summary judgment, holding that

“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.” Id. at 8–9, 141 S. Ct. at 53 (emphases added). Although these

“particularly egregious facts,” id. at 9, 141 S. Ct. at 54, required denial of

qualified immunity, however, the Court expressly distinguished a case that

found “no Eighth Amendment violation where [the] inmate was detained for

three days in [a] dirty cell and provided cleaning supplies,” Davis v. Scott, 157

F.3d 1003, 1004 (5th Cir. 1998). Id. at n.2. In other words, the Supreme

Court acknowledged the gravity of Taylor’s deprivation as a stark contrast

from the inmate in Davis. Burkle’s case involves even less onerous

conditions than Davis’s. To deny qualified immunity and potentially hold a

defendant liable for damages in this case, then, would mark a significant

extension of Taylor.

Getting back to Burkle’s contentions, he argues first that the excessive

heat in the shower cell deprived him of the minimal civilized measure of life’s

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necessities. Burkle was confined to the shower cell for up to thirty hours, he

claims, when a high of ninety-one degrees existed outside the prison at some

point. This court’s caselaw does not dictate that such brief exposure to a hot

cell amounts to cruel and unusual punishment.

Judge Douglas’s opinion cites only cases that involved continuous

exposure to high temperatures in the summer months, with the

temperatures, or heat index, routinely exceeding ninety-one degrees inside

the prison. See Yates v. Collier, 868 F.3d 354, 358 (5th Cir. 2017) (“During

the summer months, indoor temperatures within the Pack Unit housing area

can reach 100 degrees and consistently exceed 90 degrees.”); Hinojosa v.

Livingston, 807 F.3d 657, 662 (5th Cir. 2015) (“The complaint specifically

alleges that the day before Hinojosa died, the temperature at the Unit

surpassed 100°F, and in twenty-seven of the twenty-eight days preceding his

death, the temperature rose above 95°F.”); Ball v. LeBlanc, 792 F.3d 584, 590

(5th Cir. 2015) (involving a prison with a “heat index rang[ing] from 81.5° to

107.79° F” during summer months); Gates v. Cook, 376 F.3d 323, 334 (5th

Cir. 2004) (“The summer temperatures in the Mississippi Delta average in

the nineties with high humidity . . . .”); Blackmon v. Garza, 484 F. App’x 866,

871 (5th Cir. 2012) (involving repeated exposure to temperatures exceeding

100 degrees). 4

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4

Unpublished opinions like Blackmon, of course, are non-precedential, 5th Cir. Loc.

Rule 47.5.4, and cannot properly be invoked in qualified immunity tests, where the standard

is whether “every reasonable officer” “would have known” that what he was doing was

unconstitutional. Further, the Supreme Court has repeatedly reserved the question

whether plaintiffs can rely on circuit court precedents, as opposed to those of the Supreme

Court itself, to demonstrate “clearly established law.” See District of Columbia v. Wesby,

583 U.S. 48, 66 n.8, 138 S. Ct. 577, 591 (2018); Reichle v. Howards, 566 U.S. 658, 665–66,

132 S. Ct. 2088, 2094 (2012).

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Burkle’s conditions were far less severe. The length of a prisoner’s

exposure to excessive heat is an important consideration in Eighth

Amendment cases, see Hutto v. Finney, 437 U.S. 678, 686–87, 98 S. Ct. 2565,

2571 (1978), but Burkle was in the shower cell for just over a day, not the

entire summer. Nor does Burkle provide evidence showing how excessive

the heat may have been. He simply asks us to take him at his word that the

shower cell was “extraordinarily hot.” There is no evidence how hot it was

in the shower during Burkle’s confinement. And common sense suggests

that the temperature dropped overnight, inside and outside the prison.

Finally, even a warm shower serves to cool the body as the water evaporates.

Burkle next contends that the unsanitary conditions of his shower cell

deprived him of the minimal civilized measure of life’s necessities. Yet three

cases the majority cites are not even remotely comparable. The thoroughly

disgusting conditions in Taylor have already been described. 592 U.S. at 8,

141 S. Ct. at 53. Burkle’s confinement was at most a single day, and he could

have minimized feces and vomit in the shower by using shower water, as

there is no evidence that the shower drain was clogged. Further, Burkle’s

confinement was totally unlike the conditions in Palmer v. Johnson, where

forty-nine inmates were “confined in the same small [20X30 feet] area,”

without toilets and were told that their “only option was to urinate and

defecate” on the ground. 193 F.3d 346, 352 (5th Cir. 1999). Finally, Gates v.

Cook rested on the unsanitary conditions of the entire prison; the issue there

was the general living conditions for prisoners, whose cells, for instance, were

“extremely filthy.” 376 F.3d 323, 338–40 (5th Cir. 2004).

Judge Douglas’s opinion actually goes beyond Burkle’s claims

and makes up a new one: that depriving Burkle of food and drinking water for

thirty hours may violate the Eighth Amendment. Burkle did not advance this

theory and even concedes that “depriving [him] of food and water when

viewed in isolation is likely not an obvious constitutional violation.” The

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majority’s principal support for this (forfeited) claim is Cooper v. Sheriff,

Lubbock County, 929 F.2d 1078 (5th Cir. 1991). Cooper held that a prisoner

alleged a cognizable Eighth Amendment conditions of confinement claim

where “he was continuously deprived of food” by prison officials for an

extended period. Id. at 1083 (emphasis added). Burkle’s deprivation lasted

for three meals, and he had continuous access to water through the

showerhead.

Finally, Judge Douglas’s opinion would hold that the

compounding effects of the above conditions deprived him of the minimal

civilized measure of life’s necessities. But it relies on only two opinions in

support of this argument. Palmer, as just noted, involved the tight

confinement—as intentional punishment--of 49 thinly clad prisoners

overnight, without a toilet, in an outdoor pen; there were neither blankets nor

a heat source as the winds blew and temperature dropped into the 50s. And

Palmer rejected a claim based on the denial of a meal. In Fountain v. Rupert,

819 F. App’x 215, 218 (5th Cir. 2020), another unpublished, nonprecedential

opinion, the alleged deprivations spanned six years. The attempt at analogy

to these cases is frankly ludicrous. All the temporary adverse conditions

endured by Burkle were not so “extreme” as to amount to an Eighth

Amendment violation. See Hudson, 503 U.S. at 9, 112 S. Ct. at 1000.

The reliance on truly extreme cases to support a jury trial for Burkle’s

comparatively mild mistreatment mocks the Supreme Court’s insistence that

“cruel and unusual” punishment actually means “extreme” conditions.

The irrelevance of such extreme cases is further obvious because Major

Patrick had a legitimate, non-punitive reason to confine Burkle and deny him

food and drink until the question whether he had ingested contraband drugs

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was resolved. 5 The conditions that Burkle experienced for a short period of

time, taken individually or collectively, were not objectively severe.

As to the subjective component of an Eighth Amendment claim, there

is no evidence creating a jury question on the prison guards’ deliberate

indifference—a standard that is more difficult to satisfy than gross

negligence. See Dyer v. Houston, 964 F.3d 374, 381 (5th Cir. 2020). Major

Patrick gave the orders. There is no evidence that he or the other defendant

guards were aware of a substantial risk to Burkle’s health or safety by keeping

him in a hot shower stall without three meals for up to thirty hours. I do not

see how Judge Douglas’s opinion can buy into a claim that Burkle was

without water from the showerhead. And as an additional fact, Burkle was

cleared by the infirmary before he was placed in the shower cell. They were

waiting for Burkle to pass or throw up balloons containing illegal drugs.

Because ejecting the contraband would be good for Burkle’s health, how can

it be said that enforcing conditions conducive to that goal would endanger

him? Again, this was known by all to be a temporary deprivation and an

isolated incident for a specific nonpunitive purpose.

All of the defendants should be exonerated of deliberate indifference

to Burkle’s constitutional rights.6 But if that is not enough, as Judge

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5

Judge Douglas characterizes any consideration of penological purpose as

misapplication of the “penological-purpose test,” which this court has held inapplicable to

Eighth Amendment claims. Garrett v. Lumpkin, 96 F.4th 896, 902 (5th Cir. 2024).

Articulating the purpose of Burkle’s sequestration here is not a defense to override the

Eighth Amendment, but is one among the totality of circumstances that will ultimately

determine whether Major Patrick acted unconstitutionally or was deliberately indifferent

to Burkle’s predicament. That is especially true where, as here, the confinement’s purpose

was to ensure the safety the inmate.

6

I acknowledge that Major Patrick admitted that his instructions to deny food and

drinking water were misinterpreted; he was later held to have violated prison regulations.

But those facts do not condemn the constitutionality of his conduct or prove he exhibited

deliberate indifference. From the standpoint of governing law, his erroneous orders were

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Haynes agrees, Officers Snyder, Wheeler, Han and Brooks simply followed

the orders of their superior, Major Patrick. This court holds that an officer

acting pursuant to the order of a superior officer is entitled to qualified

immunity if the superior’s order is not “facially outrageous.” Von Derhaar

v. Watson, 109 F.4th 817, 830 (5th Cir. 2024) (quoting Jacobs v. W. Feliciana

Sheriff’s Dep’t, 228 F.3d 388, 398 (5th Cir. 2000)); see also Cope v. Cogdill, 3

F.4th 198, 208 (5th Cir. 2021); Heaney v. Roberts, 846 F.3d 795, 804 (5th Cir.

2017). Major Patrick’s order was not facially outrageous. 7 All four

subordinate officers could have viewed it as a justifiable response to Burkle’s

suspected drug smuggling earlier that morning. None of the regular guards,

nor even Major Patrick, could legitimately be found by a jury to have violated

Burkle’s Eighth Amendment rights.

2.

Because the conditions of Burkle’s confinement did not amount to an

Eighth Amendment violation, there is no need to reach the second prong of

qualified immunity. Nonetheless, it should be obvious that Judge

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at most negligence, which is not unconstitutional under the Eighth Amendment. Farmer,

511 U.S. at 835, 114 S. Ct. at 1977–78.

7

Judge Douglas concludes that neither Cope nor Heaney support affirming the

district court’s judgment. She suggests that Cope was different because (1) the jailer was

following jail policy, (2) the policy was not facially outrageous, and (3) jailers who follow

policies aimed at protecting the jailer should not be considered deliberately indifferent.

These facts are not all unique to Cope, and they fail to counsel a different outcome here.

The officers in this case were following orders of a superior. The jail’s policy did not

address what to do when there is suspected drug smuggling but no dry cell available, so this

aspect of the jail’s policy does not clearly conflict with Patrick’s orders. His orders were

not facially outrageous given that a functional water fixture was available for Burkle to clean

his cell and to obtain drinking water. The fact that Patrick’s orders were aimed at

protecting Burkle and confiscating contraband, rather than at protecting the officers, made

them no less reasonable or authoritative to the subordinate officers. Nor is deliberate

indifference established here just because the officers had some time to think about what

they were doing, unlike the officer in Heaney.

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Douglas’s analysis finds no support in clearly established law. Therefore,

there is no basis for denying qualified immunity to Major Patrick.

In July 2017, there were no remotely comparable cases holding that

Burkle’s thirty-hour confinement in a hot shower cell without food would

violate the Eighth Amendment. None of the cases cited by Judge

Douglas’s opinion involve anything like the circumstances here, hence no

cases existed to place any defendant on notice that his conduct violated the

Constitution. See Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020). Nor

is there even an attempt to liken this case to one of those rare, “obvious”

cases like Taylor, 592 U.S. at 9, 141 S. Ct. at 53–54 (citation omitted).

III.

The district court granted summary judgment to all Defendants. I

would have affirmed in toto. However, the judgment of the district court is

AFFIRMED to the extent it grants qualified immunity to officers Snyder,

Wheeler, Han and Brooks, Harvey and Altum, and is REVERSED and

REMANDED for further proceedings as to Major Patrick.

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Haynes, Circuit Judge, concurring in part as to each of the other opinions:

I concur in the following decision to affirm the district court as to

Harvey and Altum and reverse as to Patrick. I concur in the second sentence

of the last paragraph of II.1. of the decision above affirming the district court

as to Snyder, Wheeler, Han, and Brooks, because they followed Patrick.

Thus, the district court is affirmed on six of the appellees, but we reverse and

remand as to Appellee Patrick.

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Dana M. Douglas, Circuit Judge, dissenting in part:

Jonathan S. Burkle was locked in a hot prison shower for thirty hours

without food and drinking water. Alleging violations of his Eighth

Amendment right to be free from cruel and unusual punishment, Burkle sued

Defendants pursuant to 42 U.S.C. § 1983. The district court granted

summary judgment to Defendants. Based on the conditions of Burkle’s

confinement, and the genuinely disputed material facts regarding those

conditions, I respectfully dissent from the panel majority’s decision to affirm

the district court’s judgment as to Snyder, Wheeler, Han, and Brooks. I

would affirm the district court’s judgment as to Harvey and Altum and

reverse and remand as to all other Defendants.

Background

Burkle, Texas prisoner # 01526788, was previously housed in the

Alfred Hughes Unit of the Texas Department of Criminal Justice

(“TDCJ”). On the morning of July 1, 2017, Burkle visited with his cousin. 8

During the visit, prison officials informed Burkle that he was suspected of

smuggling drugs. Burkle was given a non-routine, mid-visit strip search, and

was allowed to return to visitation. Following the visit, officials strip

searched Burkle and allegedly saw contraband in Burkle’s mouth that was

then swallowed. Burkle contends that this was a false accusation. As a result

of the alleged sighting of contraband, Officer Harvey ordered a “pre-hearing

detention physical,” and Officer Altum escorted Burkle to medical

personnel, who determined that Burkle had “[n]o contraindications for

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8

Because this case is before us on a grant of summary judgment, we must view the

evidence in the light most favorable to Burkle, the non-moving party. See Tolan v. Cotton,

572 U.S. 650, 657 (2014).

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placement in segregation and cleared [Burkle] for placement in a dry cell

isolation.” Instead, Altum escorted Burkle into a shower cell.

According to TDCJ policy, dry cell isolation is “any area designated

by the warden” used to observe a prisoner and search his bodily waste to

determine if he ingested contraband or concealed it within his body. Dry cell

isolation limits a prisoner’s access to other prisoners, running water, and

standard toilet fixtures thereby eliminating opportunities for a prisoner to

destroy contraband, usually for a maximum of forty-eight hours. Any water

to the cell must be “turned off and the pipes drained prior to the offender

being placed in the dry cell.” Furthermore, per the prison’s policy, prisoners

should be provided meals, sufficient drinking water, and a bedpan upon

request; they should be monitored every 15 minutes, and their waste should

be searched if needed.

After obtaining approval for dry-cell isolation, Major Patrick ordered

that Burkle be locked in a hot and poorly ventilated shower cell. On that day,

United States Climate Data near the prison shows the high temperature was

ninety-one degrees Fahrenheit. Burkle told the officials that he had

documented heat restrictions and risked serious injury if left in the non-

airconditioned shower without food or water. Major Patrick “indicated he

was making an effort to prevent the introduction of contraband into the

facility.” But neither the shower was “turned off [nor] the pipes drained

prior to” the officials placing Burkle inside. Burkle further objected to being

placed in the shower, explaining that he had not ingested any contraband.

“Every staff member involved stated that Major Patrick gave

instructions for [Burkle] to receive no food or water.” Major Patrick

conceded that he ordered officials to ensure that Burkle “would not be

receiving anything” but Patrick argued that he meant to say Burkle “would

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not be receiving any of his property” in the shower. Further, Major Patrick

stated that he would be back the next day to check on Burkle.

Officer Wheeler followed Major Patrick’s orders and refused to

provide Burkle with food and drinking water. Burkle attempted to drink

water from the showerhead, but the water came out too forcefully and too hot

to provide relief from the heat and resulted in increasing the temperature

inside the shower. The locked shower was hot, humid, unsanitary, had no

toilet, and no place to sit or sleep. Throughout the day, Burkle continually

asked officers Wheeler and Snyder for food and drinking water, which they

refused to provide. Burkle was denied dinner and the use of the restroom by

Wheeler. Burkle was not provided food or water for thirty hours and missed

four meals.

During the thirty-hour period, Burkle experienced shortness of

breath, blurred vision, muscle cramps, a headache, stomach cramping, and

dry heaving. Subsequently, Burkle vomited and defecated on the shower

floor. He also passed out. After regaining consciousness, Burkle asked

Officer Han for food, water, medical attention, and cleaning supplies to clean

the vomit and feces from the shower floor. Officer Han denied those

requests, and Burkle laid on the shower floor next to his waste. According to

Officer Han, he checked on Burkle every fifteen minutes and found him

either “sleeping” or “sitting quietly on the shower cell floor.” Further,

Officer Han explained that he was simply “following orders” and “never

denied [Burkle] food or water with the knowledge that it would cause him

harm.”

Burkle requested medical attention from medical staff doing rounds

(occurring at least every twenty-four hours according to prison policy), but

they told him to submit written requests because his injuries were no longer

an emergency. TDCJ’s records lack proof of Burkle’s requests for medical

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attention during his confinement. Despite requesting both medical attention

and grievance forms from other prison officials immediately, no one provided

Burkle with these forms until July 5, 2017, three days after the incident.

The next morning, Major Patrick woke Burkle and requested the

contraband. Burkle denied that he had contraband and again asked for food,

water, and medical attention; Major Patrick refused. Then, Burkle asked

Officer Brooks, who again denied Burkle’s requests for food, water, and

medical attention. Later, Sergeant Winkfield found Burkle lying unconscious

next to his vomit and feces. He released Burkle from the shower, gave him a

bag to clean his own feces, and provided him with cold water.

TDCJ’s records confirm that “[m]ultiple staff members failed to take

action to see that” Burkle was placed into a secure cell and Burkle was

“denied three consecutive meals and drinking water.” Officer Han was

informed by his direct supervisor that “Patrick had ordered that we were not

to provide [Burkle] with food or water until [Burkle] gave up the drugs he was

suspected of smuggling into the prison.” Following the incident, Major

Patrick said that he had forgotten Burkle was in the shower and knew that he

had “made a mistake” and wanted to “take full responsibility” for his

“actions or inactions” in placing Burkle in the shower.

TDCJ formally reprimanded Patrick for violating the dry-cell policy

and failing “to ensure [Burkle] was provided meals and drinking water.” He

received a two-day unpaid suspension from work and was placed on

disciplinary probation for nine months. For their roles in the incident,

Captain Harvey and Sergeant Altum were reprimanded for “substandard

duty performance.” The remaining supervisors and correctional officers

received “Letters of Instruction pertaining to unlawful orders . . . and

requirements for providing offenders basic entitlements.” No contraband was

ever found.

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Proceeding pro se and in forma pauperis, Burkle filed a § 1983 action

against Patrick,9 Harvey, Altum, Han, Snyder, Wheeler, and Brooks.

Defendants filed motions for summary judgment asserting that Burkle’s

claims were meritless and that they were entitled to qualified immunity. The

district court granted Defendants’ motions for summary judgment,

concluding that Defendants were not deliberately indifferent to Burkle’s

conditions of confinement, and Defendants were entitled to qualified

immunity and sovereign immunity. Burkle filed a timely notice of appeal and

has been appointed counsel.

Analysis

Burkle argues that there are genuine issues of material fact as to

whether his conditions of confinement constituted an Eighth Amendment

violation and whether the prison officials were deliberately indifferent to his

health and safety risks. In addition, Burkle contends that the officials are not

entitled to qualified immunity because the conditions of his confinement

were obvious constitutional violations, which were clearly established before

his confinement in 2017. I discuss each argument in turn.

Eighth Amendment

“‘The unnecessary and wanton infliction of pain . . . constitutes cruel

and unusual punishment forbidden by the Eighth Amendment.’” Hope v.

Pelzer, 536 U.S. 730, 737–38 (2002) (quoting Whitley v. Albers, 475 U.S. 312,

319 (1986)) (alteration omitted). The Supreme Court has explained that

“[a]mong ‘unnecessary and wanton’ inflictions of pain are those that are

_____________________

9

On January 4, 2024, Defendants filed a suggestion of death, stating that Appellee

Anthony J. Patrick has died. Subsequently, this court granted Burkle’s unopposed motion

to substitute Patrick with the representative of his estate pursuant to Federal Rule of

Appellate Procedure 43(a)(1).

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‘totally without penological justification.’” Id. (quoting Rhodes v. Chapman,

452 U.S. 337, 346 (1981)); see Turner v. Safley, 482 U.S. 78, 89 (1987). “In

making this determination in the context of prison conditions, we must

ascertain whether the officials involved acted with ‘deliberate indifference’

to the inmates’ health or safety.” Id. (quoting Hudson v. McMillian, 503 U.S.

1, 8 (1992)). “We may infer the existence of this subjective state of mind

from the fact that the risk of harm is obvious.” Id. (citing Farmer v. Brennan,

511 U.S. 825, 842 (1994)). Prison conditions that result in “unquestioned

and serious deprivation of basic human needs” or deprive incarcerated

individuals of “the minimal civilized measure of life’s necessities” violate

the Eighth Amendment. Rhodes, 452 U.S. at 347. 10

Deprivation of Minimum Necessities

I begin by asking whether Burkle’s confinement resulted in a

deprivation of the minimal measure of life’s necessities. “No static test

exists that measures whether conditions of confinement are cruel and

unusual, for the Eighth Amendment draws its meaning from the ‘evolving

standards of decency that mark the progress of a maturing society.’” Talib

v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998), abrogated on other grounds by

Garrett v. Lumpkin, 96 F.4th 896, 901 (5th Cir. 2024), (quoting Rhodes, 452

U.S. at 346). Further, in assessing whether conduct is “cruel and unusual

punishment,” we consider the “totality of the specific circumstances that

constituted the conditions of [the plaintiff’s] confinement, with particular

_____________________

10

Contrary to the suggestion of my esteemed colleague, the fact that some of the

cases discussed in the foregoing analysis involve prisoners seeking injunctive relief, rather

than damages, does not make them less instructive on the issue of whether the officers’

conduct here violated Burkle’s Eighth Amendment right to be free from cruel and unusual

punishment. See Carey v. Piphus, 435 U.S. 247, 255 (1978) (explaining that whether a

constitutional violation occurred and whether the violation caused compensable injury are

separate requirements for a § 1983 damages claim).

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regard for the manner in which some of those conditions had a mutually

enforcing effect.” Palmer v. Johnson, 193 F.3d 346, 352–53 (5th Cir. 1999);

see, e.g., Fountain v. Rupert, 819 F. App’x 215, 219 (5th Cir. 2020) (holding

that a district court erred in dismissing plaintiff’s Eighth Amendment claims

because denial of adequate showers, filthy prison conditions, and extreme

shower water temperatures had a mutually enforcing effect to deprive the

plaintiff of the minimum necessity of hygiene).

Exposure to Excessive Heat

First, Burkle argues that (1) his confinement to a hot and humid

shower cell for thirty hours deprived him of the minimal civilized measure of

life’s necessities and that (2) the prison officials failed to take remedial

measures to protect him from extreme heat by providing fans, ice water, and

showers. See Gates v. Cook, 376 F.3d 323, 338–40 (5th Cir. 2004).

Defendants argue that Burkle has failed to show scientific evidence or

documentary support of the temperature inside the shower cell and, and even

if he had, it was not clear that heat measures were necessary based on the

temperatures inside the prison. Furthermore, Defendants contend that

Burkle lacks physical injury, pointing to a mental health examination

performed on July 3, 2017, which showed that Burkle “did not present as

being in acute distress.” A subsequent examination on July 7, 2017, indicated

that Burkle was “normal.” Similarly, the district court found that Burkle

“did not suffer a lasting physical injury.”

“As the Supreme Court has explained, ‘it is cruel and unusual

punishment to hold convicted criminals in unsafe conditions,’ regardless of

whether those conditions actually cause injury.” Garrett, 96 F.4th at 900

(quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). After all, “it would be

odd to deny an injunction to inmates who plainly proved an unsafe, life-

threatening condition in their prison on the ground that nothing yet had

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happened to them.” Id. (alteration omitted). Thus, “inmates need not show

that death or serious injury has already occurred” to prove that

unconstitutional prison conditions exist. Ball v. LeBlanc, 792 F.3d 584, 593

(5th Cir. 2015). Rather, they “need only show that there is a ‘substantial risk

of serious harm.’” Id. (quoting Gates, 376 F.3d at 333).

“It is well-established in our circuit that the Eighth Amendment

guarantees inmates a right to be free from exposure to extremely dangerous

temperatures without adequate remedial measures.” Yates v. Collier, 868

F.3d 354, 360 (5th Cir. 2017) (internal quotation marks omitted) (quoting

Hinojosa v. Livingston, 807 F.3d 657, 669 (5th Cir. 2015)); see, e.g., Ball, 792

F.3d at 592–94 (affirming district court’s finding that plaintiffs’ exposure to

temperatures ranging from the seventies to the hundreds presented a

substantial risk of serious harm to plaintiffs); Blackmon v. Garza, 484 F.

App’x 866, 872–73 (5th Cir. 2012) (reversing district court’s judgment where

plaintiff’s evidence showed, inter alia, that the substantial risk to plaintiff’s

health and safety was obvious where temperatures were regularly in the

hundreds and plaintiff was denied cool drinking water); Blackmon v. Kukua,

758 F. Supp. 2d 398, 408 (S.D. Tex. 2010) (finding genuine issue of material

fact as to whether conditions of confinement precluded summary judgment);

Gates, 376 F.3d at 338 (affirming trial court’s enjoining correctional facility

to provide fans, ice water, and showers when heat index was ninety degrees

Fahrenheit or higher after finding that heat was openly and obviously a

substantial risk to inmate health and safety).

Here, Burkle has shown a substantial risk of serious harm related to

heat exposure. He alleged that the shower cell was “small, hot, poorly

ventilated, [and] humid . . . with only hot water . . . in a building with no air

conditioning.” And Burkle not only attested that it was ninety-one degrees

outside the prison without accounting for the heat index, but also that during

the incident, he started feeling “heat related illness” as his “physical

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condition worsened due to heat and dehydration.” 11 Further, the United

States Climate Data near the prison corroborates that the outside

temperature was ninety-one degrees Fahrenheit. Indeed, “the probability of

heat-related illness” may present “a substantial risk of serious harm to the

inmates” which is “open and obvious.” Gates, 376 F.3d at 340. Unlike Ball,

the prison officials here did not implement heat-relief measures to protect

Burkle from the substantial risk posed to him by the heat in the prison or

shower cell. See Ball, 792 F.3d at 590. Moreover, as a mitigation measure, it

is improper to equate prison shower water with drinking water, as it

improperly suggests that any bathroom fixture will suffice. That would be

antithetical to the Eighth Amendment’s “‘evolving standards of decency

that mark the progress of a maturing society.’” Talib, 138 F.3d at 214

(quoting Rhodes, 452 U.S. at 346). Even the prison’s records in this case

clarified that access to the shower does not constitute “basic entitlements”

with respect to drinking water. Thus, a jury could reasonably conclude that

Burkle’s exposure to high temperatures, without mitigation measures,

constitutes the deprivation of life’s necessities, particularly when that

deprivation may have caused an obvious risk of serious harm such as

dehydration and heat exhaustion.

Exposure to Unsanitary Conditions

Burkle next asserts that the officials denied him the minimal civilized

measure of life’s necessities by confining him to an unhygienic shower cell.

_____________________

11

We have held that self-serving attestations can create a fact dispute that

precludes summary judgment. See, e.g., Luna v. Davis, 59 F.4th 713, 716 (5th Cir. 2023)

(explaining that self-serving affidavits may support the denial of summary judgment where

they “proffer[] ‘potential explanations, based on . . . personal observations’ and other

specific facts” (quoting Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 513 (5th Cir. 1999),

superseded by statute on other grounds, as noted in Mathis v. Exxon Corp., 302 F.3d 448, 459

n.16 (5th Cir. 2002))).

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Burkle notes that he was not provided cleaning supplies, which would have

allowed him to clean his cell and mitigate the intolerable conditions, and that

although he had access to water from the showerhead, the water was hot and

would have only increased the temperature and humidity in the cell.

Defendants contend that Burkle could have used the shower water to

clean the feces and vomit from the cell floor. Further, Defendants argue that

Burkle’s defecation and vomiting was less severe than that previously held to

violate the Eighth Amendment in Taylor v. Riojas, 592 U.S. 7 (2020), because

Burkle had not shown a clogged drain.

It is well-established that filthy and unsanitary cell conditions may

violate a prisoner’s Eighth Amendment rights. See, e.g., id. at 9 n.2 (holding

that “massive amounts” of feces in plaintiff’s seclusion cell, his being

deprived restroom facilities, forced to relieve himself in his cell, and forced

to sleep on the cell floor violated the Eighth Amendment); Palmer, 193 F.3d

at 352–53 (determining that plaintiff’s confinement to a small area without

restroom facilities and in unsanitary conditions for seventeen hours deprived

him of the basic elements of hygiene); Gates, 376 F.3d at 338–40 (holding that

plaintiff’s confinement to unsanitary cell conditions implicated the Eighth

Amendment’s protections); see also Hope v. Harris, 861 F. App’x 571, 584

(5th Cir. 2021) (vacating district court’s dismissal of plaintiff’s claim against

one defendant after finding that mold, urine, and feces covering cell had a

mutually enforcing effect to cause the injuries plaintiff alleged); but see Davis

v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (finding no Eighth Amendment

violation where plaintiff confined to filthy conditions for three days because

“cleaning supplies were made available to [the plaintiff], mitigating any

intolerable conditions”).

Like the guards in Taylor, the prison officials denied Burkle the use of

a toilet, which forced him to defecate, urinate, and vomit on the floor of his

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locked shower cell and sleep next to his own waste. See Taylor, 592 U.S. at 9.

Those conditions would allow a jury to find that the shower cell was

unconstitutionally unsanitary. See Harris, 861 F. App’x at 584. Nothing in

the record suggests that the shower cell was sanitary for housing purposes,

nor was it adequate for dry cell purposes. 12 Even if water alone could sanitize

surfaces of feces and vomit, which it cannot, the potential ability to clean a

cell is not dispositive. See Taylor, 592 U.S. at 13 (Alito, J., concurring) (“A

reasonable officer could not think that . . . [Davis v. Scott, 157 F.3d 1003, 1006

(5th Cir. 1998)] meant that it is constitutional to place a prisoner in the

filthiest cells imaginable for up to six days despite the availability of other

preferable cells or despite the ability to arrange for cleaning of the cells in

question.”). Because hygienic conditions of confinement are disputed

material facts, a jury should resolve this issue.

Deprivation of Food and Water

Burkle also argues that he was deprived of meals and drinking water

while being confined to the shower cell for thirty hours. 13 The Eighth

Amendment requires that inmates be provided “well-balanced meals,

containing sufficient nutritional value to preserve health.” Green v. Ferrell,

801 F.2d 765, 770 (5th Cir. 1986) (alteration omitted); see Eason v. Thaler, 73

F.3d 1322, 1327 (5th Cir. 1996) (“To comply with the Constitution, inmates

must receive ‘reasonably adequate’ food.” (quoting George v. King, 837 F.2d

705, 707 (5th Cir. 1988))). “The deprivation of food constitutes cruel and

unusual punishment only if it denies a prisoner the ‘minimal civilized

_____________________

12

Recall that TDCJ dry cell isolation procedures mandate access to a bedpan,

upon request.

13

The previous dissenting opinion takes out of context Burkle’s statement that

“depriving [him] of food and water when viewed in isolation is likely not an obvious

constitutional violation.” Burkle advances throughout his brief the claim that deprivation

of food and water violates the Eighth Amendment.

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measure of life’s necessities.’” Talib, 138 F.3d at 214 n.3 (quoting Wilson v.

Seiter, 501 U.S. 294, 298 (1991)). “Whether the deprivation of food falls

below this threshold depends on the amount and duration of the

deprivation.” Id.; see also Cooper v. Lubbock County, 929 F.2d 1078, 1083 (5th

Cir. 1991) (per curiam).

For example, in Talib, the plaintiff “failed to allege facts showing that

his diet was nutritionally or calorically deficient,” rejected some meals based

on his own personal preference and refused to kneel with his hands behind

his back before being served meals—which was required for inmates on

lockdown. Talib, 138 F.3d at 212–13. Because the prison officials had “a

legitimate penological interest in having” prisoners on lockdown “assume a

non-threatening position,” and nothing in the record showed the plaintiff

was deprived of meals, the official responsible for serving the meals did not

violate the Eighth Amendment when serving the plaintiff his meals. Id. at

214. “A facially permissible form of punishment may, for example, through

continual use inflict cruel and unusual punishment.” Cooper, 929 F.2d at

1083 (citing Dearman v. Woodson, 429 F.2d 1288, 1289 (10th Cir. 1970)

(explaining that prison officials’ “refus[al] to provide prisoner food for 50 ½

hours states cause of action under 42 U.S.C. § 1983”)).

On the other hand, in Cooper, an inmate stated a § 1983 claim for relief

when he alleged a prison did not serve him meals when he refused to fully

dress, even though the denial of meals was consistent with prison policy.

Cooper, 929 F.2d at 1082–83 (holding that plaintiff’s “assertion that he was

continuously deprived of food presents a set of facts that may entitle him to

relief”). “Because depriving a prisoner of adequate food is a form of corporal

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punishment, the [E]ighth [A]mendment imposes limits on prison officials’

power to so deprive a prisoner.” Id. at 1083.

As in Cooper, Burkle has sufficiently alleged that the prison officials

continuously deprived him of meals which tends to show that he lacked

adequate nutrition within a single period. Id. at 1082–83 (holding that

plaintiff’s “assertion that he was continuously deprived of food presents a

set of facts that may entitle him to relief.”). In this case, thirty hours without

any food is a deprivation of the minimal civilized measure of life’s necessities.

While Defendants argue that Burkle was placed in a dry cell for a penological

purpose, he was actually placed in a shower cell which would seemingly

defeat any penological purpose. And though my esteemed colleague

contends that deprivation of food and water is “conducive” to ejecting

contraband and “good for [Burkle’s] health,” even under TDCJ’s dry cell

procedures, whose purpose is to recover contraband, prisoners are to be

provided meals and sufficient drinking water. Moreover, even if dry cell

procedures required officials to deprive prisoners of food and drinking water,

and no one heard Burkle’s pleas for food, prisoners remain entitled to

adequate nutrition under the Constitution. Cooper, 929 F.2d at 1082–83.

Thus, a jury could reasonably find that Burkle’s continuous captivity was

cruel and unusual punishment.

Compounding Effects

Next, Burkle contends that the district court failed to consider

whether his conditions of confinement had the “mutually enforcing effect”

of depriving him of the minimal civilized measure of life’s necessities. See

Palmer, 193 F.3d at 353–54; Fountain, 819 F. App’x at 219.

In Palmer, the plaintiff alleged a violation of the Eighth Amendment

where prison officials denied him and other inmates toilet facilities to relieve

themselves for seventeen hours and kept them outdoors overnight with no

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shelter or source of heat while temperatures dropped below fifty-nine

degrees. 193 F.3d at 352–53. We held that the “totality of the specific

circumstances presented by Palmer’s claim . . . constituted a denial of the

minimal civilized measure of life’s necessities.” Id. at 353 (citations and

quotation marks omitted). Similarly, in Fountain, we determined that the

plaintiff’s allegations that he was subjected to extreme temperatures, shower

water temperatures, and filthy prison conditions, when considered together,

collectively deprived him of the basic elements of hygiene in violation of the

Eighth Amendment because the shower’s high temperature effectively

discouraged the plaintiff from using the shower. 819 F. App’x at 219.

Here, the shower’s high temperature, the humidity, and the

conditions of the cell coexist and operated together to deny Burkle freedom

from extreme temperatures and the basic elements of hygiene. Like Palmer,

Burkle was exposed to extreme temperatures, and the prison officials denied

Burkle relief. Thus, Burkle’s simultaneous exposure to heat and deprivation

of a toilet, food, water, and medical attention had a mutually enforcing effect

to deprive him of his “basic entitlements.” Moreover, a jury could find that

such deprivations would compound Burkle’s conditions of confinement, as

the lack of food and water would obviously contribute to dehydration and

heat exhaustion. 14

Furthermore, even if the prison officials had a “facially permissible

form of punishment” for Burkle as they suspected he had ingested

contraband, the “continual use” of the shower cell and deprivation of food

and drinking water were antithetical to its stated purposes and could lead a

_____________________

14

See Popkin et al., Water, hydration, and health, 68 Nutrition Revs. 439, 439–

40, 443–46 (2010) (explaining that humans are hydrated by consuming both food and liquid

water, twenty two percent of water is consumed through food, and that dehydration can

have both physical and cognitive effects).

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fact finder to determine that these circumstances constitute “cruel and

unusual punishment.” Cooper, 929 F.2d at 1083.

Because a jury could find that Burkle’s Eighth Amendment rights

were violated when Defendants denied him food and drinking water and

subjected him to a filthy and hot shower cell, I would reverse the district

court’s determinations as it pertains to the above.

Deliberate Indifference

Having concluded that Burkle’s conditions of confinement resulted in

an extreme deprivation of the minimal measure of life’s necessities, I next

consider whether the prison officials acted with deliberate indifference.

“The question under the Eighth Amendment is whether prison officials,

acting with deliberate indifference, exposed a prisoner to a sufficiently

substantial ‘risk of serious damage to his future health’ . . . and it does not

matter whether the risk comes from a single source or multiple sources, any

more than it matters whether a prisoner faces an excessive risk of attack for

reasons personal to him or because all prisoners in his situation face such a

risk.” Farmer, 511 U.S. at 843 (citation omitted). “To establish deliberate

indifference, the prisoner must show that the defendants (1) were aware of

facts from which an inference of an excessive risk to the prisoner’s health or

safety could be drawn and (2) that they actually drew an inference that such

potential for harm existed.” Rogers v. Boatright, 709 F.3d 403, 407–08 (5th

Cir. 2013).

Burkle states that Defendants were deliberately indifferent because

the heat risk was obvious, he told officers that the heat was especially

dangerous for him because he had documented heat restrictions, and he

repeatedly complained to them that he was suffering from heat-related

illness, yet they ignored his pleas for relief. As to the unsanitary conditions,

Burkle asserts that the officers were aware that he was in the small shower

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with his own waste for the majority of his thirty-hour confinement and

refused to supply any means for him to clean the shower. 15 Specifically,

Burkle contends that he presented ample evidence that correctional officers

Wheeler, Snyder, Brooks, and Han were aware of a risk to his safety and were

deliberately indifferent to it because the record indicates that they knew the

prison was unairconditioned; had received training on the danger of heat

exposure; knew of the high temperature and that Burkle had defecated,

vomited, and urinated on the cell floor; knew that Burkle had documented

heat restrictions, that the cell was poorly ventilated, that only hot water

flowed from the showerhead; and heard him calling out for assistance, food,

water, and cleaning supplies. Burkle notes that the district court stated that

Snyder, Brooks, and Han claimed that Burkle never asked for help and that

his evidence to the contrary creates a genuine issue of material fact

precluding summary judgment.

Defendants argue that Burkle fails to satisfy the deliberate indifference

standard because the prison officials were not aware of a serious risk of harm

to Burkle concerning heat, and the officials could disregard his heat

restrictions because he passed the physical exam required for dry cell

isolation. Further, Defendants contend that Burkle has not shown that prison

officials were aware that he had no drinking water or that he was unable to

drink the shower water.

Here, the district court erred when it failed to draw all reasonable

inferences in favor of Burkle, as required at the summary judgment stage. See

_____________________

15

Burkle states that he vomited and defecated in the shower cell shortly after

dinnertime on July 1, 2017. He asked officers for food, water, medical help, and for means

to clean his waste, but was denied until the next day when Winkfield brought him cold water

and Brooks gave him a bag for the feces before placing him in a solitary cell and giving him

a dinner tray.

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Santos v. White, 18 F.4th 472, 475 (5th Cir. 2021). The district court

erroneously concluded that “there [was] no evidence that any defendant was

deliberately indifferent to Plaintiff’s health and safety,” a conclusion only

reachable by disregarding Burkle’s allegations in violation of the summary

judgment standard. Below I consider the actions of each Defendant in turn.

a. Harvey and Altum

For Harvey and Altum, although they were present when Patrick

ordered that Burkle be confined to the shower cell without food and water,

there is nothing in the summary judgment record indicating that they knew

how long Burkle would be confined to the shower, the conditions he was

exposed to, or that he would actually be denied food, water, and a toilet. In

particular, Harvey ordered Burkle’s “pre-hearing detention physical,” and

Altum escorted Burkle to medical personnel, who determined that Burkle

had “[n]o contraindications for placement in segregation and cleared

[Burkle] for placement in a dry cell isolation.” Then, Altum escorted Burkle

into a shower cell. What followed after that were the actions of the

correctional officers, not Harvey and Altum.

Absent knowledge on the part of Harvey and Altum, Burkle fails to

show that these Defendants knew that he faced a substantial risk of serious

harm and disregarded that risk; thus, the district court correctly determined

that Harvey and Altum were not deliberately indifferent to Burkle’s health or

safety and properly granted summary judgment in their favor. See Farmer,

511 U.S. at 837; see also Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983)

(stating that to be liable under § 1983, a defendant “must be either personally

involved in the acts causing the deprivation of a person’s constitutional

rights, or there must be a causal connection between an act of the [defendant]

and the constitutional violation sought to be redressed.”). Accordingly,

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because Burkle has not demonstrated deliberate indifference for Harvey and

Altum, those Defendants are entitled to summary judgment.

Snyder, Wheeler, Han, Brooks

The district court erred, however, as to correctional officers Snyder,

Wheeler, Han, and Brooks. First, for Snyder and Wheeler, the district court

determined that based on the time that Burkle was placed in the shower cell

and the shift they worked on that day, they were aware of, at most, five hours

during which Burkle was denied food and water. The court then stated that

even if Burkle made requests to the officers, there was no evidence to

contradict that they believed the shower cell was not uncomfortably warm.

In doing so, the district court credited Snyder’s and Wheeler’s statements

over Burkle’s complaint and sworn affidavit.

Second, as to Han and Brooks, who worked the nightshift, the district

court determined that they were responsible only for providing Burkle with

breakfast on July 2nd and that although they knew they were not to provide

Burkle with food and water, they knew that Burkle had access to water from

the shower. Brooks denied Burkle’s requests for food, water, and medical

attention. Again, “it does not matter whether the risk comes from a single

source or multiple sources[.]” Farmer, 511 U.S. at 843. The focus is whether

the correctional officers knew that the deprivation of meals, water, and

exposure to excessive heat may cause excessive health risks, and whether the

correction officers drew an inference that such potential for harm existed.

See Boatright, 709 F.3d at 407–08. Given that heat exposure posed an obvious

risk to inmates in Gates and Blackmon, the extreme heat and poor ventilation

in the shower posed an obvious risk to Burkle. See Gates, 376 F.3d at 339–40;

Blackmon, 484 F. App’x at 872–73. “[T]his subjective state of mind” may

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be inferred “from the fact that the risk of harm is obvious.” Pelzer, 536 U.S.

at 737–38 (citing Farmer, 511 U.S. at 842).

The district court’s attempt to separate each correctional officer’s

conduct by a matter of hours does not negate the fact that each officer

deprived Burkle of food, water, and medical attention. Farmer, 511 U.S. at

843. None of the correctional officers contend that they provided Burkle

with adequate food, drinking water, or medical care. Indeed, Burkle

continually asked Wheeler and Snyder for food and drinking water, which

they refused to provide. As discussed above, the Eighth Amendment

requires such minimal civilized measures of life’s necessities. Moreover,

TDCJ’s records confirm that “[m]ultiple staff members failed to take action

to see that” Burkle was placed into a secure cell and Burkle was “denied three

consecutive meals and drinking water.” Indeed, according to TDCJ records

immediately following the incident, the correctional officers stated that they

were told by Patrick not to provide food or water to Burkle and they followed

those orders. Defendants do not argue that the Eighth Amendment allows

for the deprivation of these basic entitlements. With good reason, as even

TDCJ instructed the correctional officers of their “requirements for

providing offenders basic entitlements.”

Moreover, the district court determined that Burkle did not refute the

evidence showing that when Han checked on Burkle, he appeared not to be

in distress; that he did not make requests for food or water; and that Han

would have provided the items requested if he believed Burkle’s distress was

related to the denial of those items. Again, Burkle provided evidence that

these were material facts in dispute, thus summary judgment was improper.

Moreover, as to Brooks’ and Han’s alleged denial of medical attention, “the

medical care a prisoner receives is just as much a ‘condition’ of his

confinement as the food he is fed, the clothes he is issued, the temperature

he is subjected to in his cell, and the protection he is afforded against other

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inmates.” Wilson, 501 U.S. at 303. Deliberate indifference to “serious

medical needs of prisoners constitutes the ‘unnecessary and wanton

infliction of pain,’ Gregg v. Georgia, [428 U.S. 153, 173 (1976)], proscribed by

the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); accord

Farmer, 511 U.S. at 832.

In Gates, we found prison officials deliberately indifferent because

they failed to provide adequate heat relief, when the heat index was ninety

degrees Fahrenheit or above, and inmates’ complaints made obvious the risk

posed by heat conditions. Here, the heat risk to Burkle was obvious because

it was ninety-one degrees Fahrenheit outside, he told the officers that the

heat was especially dangerous for him and that he had documented heat

restrictions, and he repeatedly complained to them that he was suffering from

heat-related illness. See 376 F.3d at 339–40. Moreover, a “lack of knowledge

of [the plaintiff’s] individual susceptibility to heat-related dangers cannot

defeat an Eighth Amendment claim.” Hinojosa, 807 F.3d at 667. Indeed, in

light of our precedent, deliberate indifference may be established when the

plaintiff, as here, has alleged “dangerous conditions that we have previously

held to be unconstitutional for general inmate populations.” Id. at 668.

Thus, a reasonable factfinder could determine that the correctional officers

here refused to provide Burkle any relief from the heat, in the form of

drinking water, food, or otherwise. See Gates, 376 F.3d at 339–40. This is

particularly true here because every staff member involved stated that Patrick

gave instructions for Burkle to receive no food or water and the risks of heat

exposure and dehydration are obvious.

In addition, exposure to human waste poses an obvious risk to inmate

health and safety. See Taylor, 592 U.S. at 9. In Taylor, the Court held that

the risk posed to an inmate housed in cells covered in human waste for six

days was obvious, and that prison officials were deliberately indifferent when

they knew of the cell conditions and did not provide any way to mitigate

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them. Id. The Court found that the prison officials were aware of the

conditions, and showed deliberate indifference, when one official said the

inmate was going to have a “long weekend.” Id.

Similarly, here, Burkle’s prolonged exposure to waste posed an

obvious risk as he was confined for thirty hours, most of which he spent in

close proximity to vomit, urine, and excrement. At minimum, a reasonable

factfinder could find that Han and Brooks were deliberately indifferent as

Burkle asked both for food, water, medical attention, and cleaning supplies

to clean the vomit and feces from the shower floor. Because Han and Brooks

denied those requests, Burkle passed out on the shower floor next to his

waste. Importantly, Han knew that Burkle was locked in a shower cell for

thirty hours without food and drinking water because he stated that he

checked on Burkle every fifteen minutes. Therefore, Han, as with the other

correctional officers, were aware of the risks to Burkle’s health and safety.

According to TDCJ records, Snyder, Wheeler, Han, and Brooks

received “Letters of Instruction pertaining to unlawful orders . . . and

requirements for providing offenders basic entitlements.” Although

“[u]nder our current caselaw, violations of internal procedures or policies are

insufficient to give rise to constitutional violations,” “when properly

supported by precedent, these internal procedures bolster a finding that

defendants had “fair and clear warning” of the clearly established right at

issue.” Banks v. Herbrich, 90 F.4th 407, 416 (5th Cir. 2024) (citing Pelzer,

536 U.S. at 745–46 (“Even if there might once have been a question regarding

the constitutionality of this practice, the Eleventh Circuit precedent . . . as

well as the DOJ report condemning the practice, put a reasonable officer on

notice . . . .”)); Groh v. Ramirez, 540 U.S. 551, 564 (2004) (“In fact, the

guidelines of petitioner’s own department placed him on notice that he might

be liable . . . .”). Now, the officials have proffered affidavits that suggest they

had no knowledge or were merely following orders. This supports the notion,

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at the very least, that material factual disputes remain on summary judgment.

Thus, the district court improperly concluded that correctional officers

Snyder, Wheeler, Han, and Brooks, lacked awareness that their conduct

exposed Burkle to excessive and obvious health risks. 16

In addition, Defendants repeatedly argue that “there was a legitimate

penological purpose” for their “behavior” because they suspected Burkle

had contraband. The Defendants’ and the district court’s reliance on the

penological-purpose test, is misplaced.

The Supreme Court has explained that the penological-purpose test

does not apply to Eighth Amendment conditions-of-confinement claims. See

Garrett, 96 F.4th at 900 (citing Johnson v. California, 543 U.S. 499, 511

_____________________

16

Even if it were not disputed that the officers were merely following Patrick’s

orders, this fact would not demonstrate a lack of deliberate indifference as my esteemed

colleague suggests.

In Cope v. Cogdill, a prisoner strangled himself and the officer declined to enter

until after another jailer arrived pursuant to the jail’s policy. 3 F.4th 198, 208 (5th Cir.

2021). We determined that the jailer was entitled to qualified immunity, not only because

he was following the jail’s policy, but also because the policy was not “facially outrageous”

and our caselaw suggests that for inmate-suicide cases, “jailers who follow policies aimed

at protecting the jailer should not be considered deliberately indifferent to an inmate’s

medical need.” Id. Here, Patrick’s orders were aimed at obtaining suspected contraband,

not protecting officers supervising a suicidal prisoner. Moreover, given that TDCJ’s dry

cell procedure requires that prisoners be provided food and drinking water, Patrick’s orders

to deny Burkle food and drinking water was facially outrageous.

Heaney v. W. Feliciana Sheriff’s Dep’t, 846 F.3d 795 (5th Cir. 2017), also does not

support affirming the district court’s judgment as to Sydney, Wheeler, Han, and Brooks

because they followed Patrick’s orders. There, we held that the officer was entitled to

qualified immunity when he followed an order to remove the plaintiff from a council

meeting because the officer had no time or reason to believe that he was violating the

plaintiff’s First Amendment rights by following the order. Id. at 804. The officers, here,

denied Burkle food and drinking water for hours during his confinement in an extremely hot

and filthy cell in contravention of both TDCJ policy to provide dry cell inmates food and

drinking water, and the clearly established caselaw holding that such conduct violates the

Eighth Amendment.

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(2005)). In Johnson, the Court explained, in detail, contexts in which the

penological-interest test governs and where it does not. 543 U.S. at 510–12.

That included the Court’s pronouncement that the penological-interest test

does not apply to Eighth Amendment actions. Id. at 511. Indeed, “the

integrity of the criminal justice system depends on full compliance with the

Eighth Amendment.” Id. Thus, I would remand for the district court to

apply to the correct legal standard under Johnson. See Garrett, 96 F.4th at

901–02.

The issue of whether Burkle made requests for food and water,

complained about the conditions of the cell, and informed Snyder, Wheeler,

Han, and Brooks of his medical distress constitutes a genuine issue of

material fact as to the correctional officer’s deliberate indifference that the

district court impermissibly resolved against Burkle. See Fed. R. Civ. P.

56(a); see also United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993)

(explaining that assessing the credibility of the witnesses and weighing the

evidence is the exclusive province of the jury); Cuadra v. Houston Indep. Sch.

Dist., 626 F.3d 808, 812 (5th Cir. 2010) (stating that a factual issue is

“material” if its resolution would affect the outcome of the fact under the

applicable law); Bibbs v. Early, 541 F.3d 267, 271–72 (5th Cir. 2008)

(determining that Bibbs had raised a genuine issue of material fact on his §

1983 retaliation claim where he claimed that he was subjected to below-

freezing temperatures for four hours, four nights in a row, in retaliation for

exercising his First Amendment rights). Therefore, I would reverse the

district court’s decision as to Snyder, Wheeler, Han, and Brooks.

Patrick

Lastly, the district court credited Major Patrick’s assertion that he

was unaware of Burkle’s injuries and that his orders were misunderstood,

while other evidence in the record, including Burkle’s affidavit and prison

records, create a genuine issue as to these material facts. Specifically, Patrick

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contended that his order was misunderstood and that he actually meant that

Burkle was not to be given anything from his regular cell. The court noted

that there was no dispute that Burkle had no heat restrictions placed on his

housing, that Patrick was implementing dry cell isolation to recover

contraband, and that he failed to follow the proper dry cell procedures.

However, the court determined that, at most, Patrick prevented Burkle from

receiving food and water for thirty hours and that there was no evidence that

Patrick knew of facts from which an inference could be drawn that a

substantial risk of harm existed or that he drew such an inference.

There is no dispute that Patrick ordered that Burkle be confined in the

shower stall. Moreover, by ordering that Burkle be confined to the shower

cell and denied food, water, and bathroom facilities for an unspecified period

of time, and by ignoring Burkle’s complaints, a reasonable factfinder could

conclude that Patrick was aware of a substantial risk to Burkle’s health and

safety. See Taylor, 592 U.S. at 9; see also Gates, 376 F.3d at 339–40; Ball, 792

F.3d at 595–96. And, just as the “long weekend” comment indicated

deliberate indifference in Taylor, so too does Patrick’s statement that he

would be back to check on Burkle after ordering that he receive no food or

drinking water. See Taylor, 592 U.S. at 9. TDCJ’s records confirmed that

Burkle was “denied three consecutive meals and drinking water.” TDCJ

formally reprimanded Patrick for failing “to ensure [Burkle] was provided

meals and drinking water.” Because the facts concerning deliberate

indifference are disputed and material to Burkle’s Eighth Amendment claim,

Patrick is also precluded from summary judgment. See Fed. R. Civ. P.

56(a).

Based on the totality of circumstances, Burkle was denied his

minimum entitlements. Because Defendants’ affidavits suggest otherwise,

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the credibility of such evidence is a question left to a jury. 17 See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, (1986). Therefore, the district court

was wrong to grant summary judgment for Snyder, Wheeler, Han, Brooks,

and Patrick. Drawing all reasonable inferences in favor of Burkle, a jury could

reasonably find that Snyder, Wheeler, Han, Brooks, and Patrick were

deliberately indifferent.

Qualified Immunity

Although the above-named officials violated Burkle’s Eighth

Amendment rights, qualified immunity may nevertheless shield the officers

from liability. An officer is entitled to qualified immunity 18 on summary

judgment unless the facts, when viewed in the light most favorable to the

plaintiff, would permit a reasonable juror to find that: (1) the defendant

violated a constitutional right; and (2) the right was clearly established. See,

e.g., Pearson v. Callahan, 555 U.S. 223, 232 (2009); Cole v. Carson, 935 F.3d

_____________________

17

Our sister circuits have similarly denied qualified immunity where a genuine

issue of material fact existed as to whether the prison official knew of a prisoner’s

conditions of confinement, see Wilk v. Neven, 956 F.3d 1143 (9th Cir. 2020); Gordon v.

Schilling, 937 F.3d 348 (4th Cir. 2019); Bishop v. Hackel, 636 F.3d 757 (6th Cir. 2011);

Townsend v. Fuchs, 522 F.3d 765 (7th Cir. 2008); Johnson v. Wright, 412 F.3d 398 (2d Cir.

2005); Nei v. Dooley, 372 F.3d 1003 (8th Cir. 2004), and whether the prison official’s

conduct constituted cruel and unusual punishment, see Harris v. Miller, 818 F.3d 49 (2d

Cir. 2016); Stringer v. Rowe, 616 F.2d 993 (7th Cir. 1980).

18

Separately, as to sovereign immunity, the district court determined that, to the

extent defendants are sued in their official capacity for monetary damages, defendants are

immune under the Eleventh Amendment. The parties do not challenge this issue on

appeal. Nonetheless, we must ensure our subject-matter jurisdiction. See Pervasive

Software Inc. v. Lexware GmbH & Co., 688 F.3d 214, 231 (5th Cir. 2012). Pursuant to the

Eleventh Amendment, federal courts lack jurisdiction over suits against a state unless that

state waived its sovereign immunity, or Congress has clearly abrogated it. See Moore v. La.

Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). Here, Burkle has

sued the prison officials in their individual capacity, and thus his claims are subject to the

qualified immunity defense, not sovereign immunity.

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444, 451 (5th Cir. 2019) (en banc); Tolan, 572 U.S. at 657. In defining clearly

established law “‘the salient question . . . is whether the state of the law’ at

the time of an incident provided ‘fair warning’ to the defendants ‘that their

alleged [conduct] was unconstitutional.’” Tolan, 572 U.S. at 656 (quoting

Pelzer, 536 U.S. at 741 (further explaining that “officials can still be on notice

that their conduct violates established law even in novel factual

circumstances”—i.e., even without a prior case that had “fundamentally

similar” or “materially similar” facts)).

Burkle contends that the officials are not entitled to qualified

immunity because the conditions of his confinement were obvious

constitutional violations, which were clearly established before his

confinement in 2017. As noted, Burkle has satisfied the first step in rebutting

the qualified immunity defense as a jury could find that Snyder, Wheeler,

Han, Brooks, and Patrick violated Burkle’s Eighth Amendment right to be

free from cruel and unusual punishment. 19

Accordingly, the focus is on the second step of the qualified immunity

analysis—that is, whether the officers violated clearly established law. Burkle

contends that Defendants had notice that their acts were unconstitutional

because analogous case law is not necessary when the conduct constitutes an

obvious constitutional violation; and it was clearly established in 2017 that

Burkle’s conditions of confinement, individually and in their totality, violated

the Eighth Amendment. Defendants argue that their conduct was not an

obvious constitutional violation, and they lacked notice because there was no

case on point.

_____________________

19

As discussed above, Harvey and Altum are entitled to summary judgment as

Burkle has not shown they violated his constitutional rights.

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As thoroughly discussed above, it was clearly established before 2017

that subjecting inmates to excessive heat conditions, depriving inmates of

food and drinking water for a period of time, and subjecting inmates to filthy

cells violates the Eighth Amendment. See Gates, 376 F.3d at 339–40; McCord

v. Maggio, 927 F.2d 844, 847 (5th Cir. 1991); Green, 801 F.2d at 770; Pelzer,

536 U.S. at 738. Therefore, our precedent and the Supreme Court’s

precedent compels a finding that the obvious risks to health in this case were

clearly established for decades before Burkle’s confinement.

Conclusion

Locking Burkle in a hot prison shower for thirty hours, while ignoring

his pleas for food, water, and cleaning supplies, as he passed out next to his

own vomit, urine and excrement, clearly violated his Eighth Amendment

rights. Thus, the genuinely disputed material facts regarding the conditions

of Burkle’s confinement preclude summary judgment for all Defendants,

except Harvey and Altum whom the record does not show were aware of such

conditions. I therefore respectfully dissent from the panel majority’s

decision to affirm the district court’s grant of summary judgment in favor of

Snyder, Wheeler, Han, and Brooks. I would affirm the district court’s

judgment only as to Harvey and Altum and reverse and remand as to all

remaining Defendants.

40