Steven Kulkay v. Tom Roy

United States Court of Appeals

For the Eighth Circuit

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No. 16-1801

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Steven Kulkay,

Plaintiff - Appellant

v.

Tom Roy, Commissioner of the Minnesota Department of Corrections; the

Minnesota Department of Corrections; the State of Minnesota; Jeremy Schwartz,

in his official and individual capacities; Alice Remillard, in her official and

individual capacities; John Doe, in his official and individual capacities; Richard

Doe, in his official and individual capacities,

Defendants - Appellees

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Appeal from United States District Court

for the District of Minnesota - Minneapolis

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Submitted: November 17, 2016

Filed: February 2, 2017

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Before BENTON and SHEPHERD, Circuit Judges, and EBINGER,1 District Judge.

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EBINGER, District Judge.

1

The Honorable Rebecca Goodgame Ebinger, United States District Judge for

the Southern District of Iowa, sitting by designation.

Former inmate Steven Kulkay injured himself while using industrial equipment

in the workshop of a Minnesota correctional facility. Kulkay sued the Minnesota

Department of Corrections and related parties alleging violations of his civil rights

under the Eighth and Fourteenth Amendments, as well as negligence of prison

employees. The district court2 dismissed all of Kulkay’s claims. On appeal, Kulkay

argues the district court erred in dismissing his Eighth Amendment claims against the

individual defendants. We affirm.

I.

We accept as true the material allegations in the complaint and present the facts

in the light most favorable to Kulkay. See Hager v. Ark. Dep’t of Health, 735 F.3d

1009, 1013 (8th Cir. 2013).

In 2013, Kulkay was incarcerated at the Faribault, Minnesota, correctional

facility. Officials assigned him to work in the prison’s industrial workshop. After one-

and-a-half months in the workshop, Kulkay was directed to operate the beam saw.

The beam saw is a large, stationary machine that uses computers to automatically

move and cut wood beams. After a worker loads a beam onto the saw’s work table,

sensors detect the beam’s size and location. The machine moves the beam into

position and circular blades extend to make the desired cuts. The operator is not

required to manually start or stop the blade. The beam saw in the Faribault workshop

was designed to utilize plastic safety guards to protect the operator from the blades.

Kulkay alleges Faribault officials never installed the safety guards while he was an

inmate and the parts sat unused in the workshop.

2

The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota, adopting the report and recommendation of the Honorable Tony N.

Leung, United States Magistrate Judge for the District of Minnesota.

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By August 2013, Kulkay had worked in the workshop for two-and-a-half

months and with the beam saw for one month. He received instruction on how to

operate the saw from an inmate with experience on the saw; he did not receive any

formal safety training from officials. Kulkay had never used or seen a beam saw

before his assignment to the workshop. On August 5, 2013, Kulkay severed three of

his fingers and part of a fourth while operating the saw. Doctors were unable to

reattach the severed fingers.

Kulkay brought a 42 U.S.C. § 1983 suit against several institutional and

individual defendants for violating his civil rights under the Eighth and Fourteenth

Amendments. The defendants include the State of Minnesota; the Minnesota

Department of Corrections; Tom Roy, the commissioner of the Department of

Corrections; Alice Remillard, the safety director at the Faribault facility; Jeremy

Schwartz, the supervising safety officer in charge of the facility’s workshop; and two

unknown prison employees. Kulkay also brought negligence claims against the State

of Minnesota and its Department of Corrections based on vicarious liability.

The defendants jointly filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). The magistrate judge issued a Report and

Recommendation (R&R) concluding the defendants’ motion should be granted. The

R&R determined a number of Kulkay’s claims were barred by Eleventh Amendment

immunity, his Fourteenth Amendment claims could be brought only under the Eighth

Amendment, and his Eighth Amendment claims failed because the individual

defendants were entitled to qualified immunity. Kulkay objected only to the

recommendation that his Eighth Amendment claims against the individual defendants

be dismissed. The district court adopted the R&R in its entirety and held Kulkay’s

complaint failed to state a claim under the Eighth Amendment on the basis of

qualified immunity. Kulkay appeals.

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II.

This court reviews a Rule 12(b)(6) dismissal based on qualified immunity de

novo. Hager, 735 F.3d at 1013. We accept the factual allegations in the complaint as

true and construe them in favor of the plaintiff. Id. We do not, however, “presume the

truth of legal conclusions couched as factual allegations.” Id.; accord Wiles v. Capitol

Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002) (“[T]he court is free to ignore legal

conclusions, unsupported conclusions, unwarranted inferences and sweeping legal

conclusions cast in the form of factual allegations.”).

To survive a motion to dismiss for failure to state a claim, “the complaint must

include sufficient factual allegations to provide the grounds on which the claim rests.”

Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544 (2007)). The stated claim for relief must be “plausible on

its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Although a plaintiff need not allege facts in painstaking detail, the facts

alleged “must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. This standard “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

On appeal, Kulkay argues the district court erred when it dismissed his Eighth

Amendment claims on the basis of qualified immunity. The doctrine of qualified

immunity generally shields public and government officials performing discretionary

functions from civil liability “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[D]efendants seeking

dismissal under Rule 12(b)(6) based on an assertion of qualified immunity ‘must

show that they are entitled to qualified immunity on the face of the complaint.’”

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Carter v. Huterson, 831 F.3d 1104, 1107 (8th Cir. 2016) (quoting Bradford v.

Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)).

To determine whether a public official is entitled to immunity, courts conduct

a two-pronged analysis: “whether the plaintiff has stated a plausible claim for

violation of a constitutional or statutory right and whether the right was clearly

established at the time of the alleged infraction.” Hager, 735 F.3d at 1013. Courts are

“permitted to exercise their sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 555

U.S. 223, 236 (2009). Because an official is entitled to qualified immunity unless

both prongs are satisfied, our analysis will end if either of the two is not met. See id.

We first consider whether Kulkay has stated a plausible claim for a constitutional

violation.

III.

Kulkay’s § 1983 claim alleges the defendants violated the Eighth Amendment’s

ban on “cruel and unusual punishment.” Eighth Amendment protection extends to

conditions of incarceration and confinement, including prison work assignments.

Farmer v. Brennan, 511 U.S. 825, 833 (1994); Ambrose v. Young, 474 F.3d 1070,

1075 (8th Cir. 2007). An inmate must make two showings—one objective and one

subjective—to successfully state an Eighth Amendment claim. Ambrose, 474 F.3d at

1075.

First, the inmate must show the alleged violation is “objectively [and]

sufficiently serious.” Farmer, 511 U.S. at 834 (citation and quotation marks omitted).

An alleged violation is “objectively [and] sufficiently serious” when the inmate “is

incarcerated under conditions posing a substantial risk of serious harm.” Id. (citation

and quotation marks omitted); accord Nelson v. Shuffman, 603 F.3d 439, 446 (8th

Cir. 2010). We have found this first requirement satisfied in various contexts. See,

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e.g., Nelson, 603 F.3d at 447 (holding an inmate faced a substantial risk of serious

harm when officials assigned him to share a room with an inmate known to have

sexually assaulted other inmates); Irving v. Dormire, 519 F.3d 441, 445, 448–49 (8th

Cir. 2008) (finding a sufficient risk of harm when a correctional officer made verbal

death threats to an inmate); Simmons v. Cook, 154 F.3d 805, 807–08 (8th Cir. 1998)

(finding a sufficient risk of harm when officials placed two paraplegic inmates in

solitary confinement for thirty-two hours without access to food and medical care).

Second, the inmate must show the defendant official acted with a “sufficiently

culpable state of mind.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S.

294, 297 (1991)). This subjective inquiry is “analyzed in light of the specific claim

raised.” Irving, 519 F.3d at 446. In a case challenging the conditions of confinement,

the requisite state of mind is “‘deliberate indifference’ to inmate health or safety.”

Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302–03). “An official is

deliberately indifferent if he or she actually knows of the substantial risk and fails to

respond reasonably to it.” Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007). This

requirement “follows from the principle that ‘only the unnecessary and wanton

infliction of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834

(quoting Wilson, 501 U.S. at 297).

This court has repeatedly held mere negligence or inadvertence does not rise

to the level of deliberate indifference. See, e.g., Schaub v. VonWald, 638 F.3d 905,

914–15 (8th Cir. 2011) (“Deliberate indifference is equivalent to criminal-law

recklessness, which is ‘more blameworthy than negligence,’ yet less blameworthy

than purposefully causing or knowingly bringing about a substantial risk of serious

harm to the inmate.” (quoting Farmer, 511 U.S. at 835)); Stephens v. Johnson, 83

F.3d 198, 200–01 (8th Cir. 1996); Estate of Rosenberg v. Crandell, 56 F.3d 35, 37

(8th Cir. 1995) (“The prisoner must show more than negligence, more even than gross

negligence, and mere disagreement with treatment decisions does not rise to the level

of a constitutional violation.”).

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In contrast to negligence, “deliberate indifference requires a highly culpable

state of mind approaching actual intent.” Choate v. Lockhart, 7 F.3d 1370, 1374 (8th

Cir. 1993). “In the prison work assignment context, prison officials are deliberately

indifferent when they knowingly compel ‘an inmate to perform labor that is beyond

the inmate’s strength, dangerous to his or her life or health, or unduly painful.’”

Ambrose, 474 F.3d at 1077 (quoting Sanchez v. Taggart, 144 F.3d 1154, 1156 (8th

Cir. 1998)). The defendant-official’s state of mind “must be measured by the

official’s knowledge at the time in question, not by ‘hindsight’s perfect vision.’”

Schaub, 638 F.3d at 915 (quoting Lenz v. Wade, 490 F.3d 991, 993 n.1 (8th Cir.

2007)).

Kulkay argues the alleged conditions that led to his injury—Faribault officials’

failure to install the beam saw’s safety guards or provide Kulkay with any formal

safety training—constitute an objectively serious risk of harm. Kulkay further

contends officials had knowledge of this risk but failed to act. Kulkay argues several

factors demonstrate officials knew of the risk posed by directing him to operate the

beam saw: 1) the manufacturer’s safety guards sat unused in the workshop and were

not installed on the saw; 2) officials knew other inmates had previously suffered

injuries while using workshop equipment; 3) Kulkay did not receive safety training

from officials on the proper use of the saw; 4) officials were aware the lack of safety

guards on workshop equipment violates state and federal safety regulations; and 5)

the primary responsibility of two of the named defendants, Schwartz and Remillard,

was to ensure safety in the workshop and the overall facility. Kulkay contends the

combination of these factors sets forth a plausible claim Faribault officials knew of

the substantial risk of harm posed by the beam saw but assigned Kulkay to operate

the saw anyway.

Even if we assume, without deciding, Kulkay’s assignment to operate the beam

saw with no safety guards and no formal training presents an objective risk of serious

harm, Kulkay has not alleged facts sufficient to show Faribault officials were

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deliberately indifferent to that risk. A necessary element of deliberate indifference is

that the defendant officials had actual knowledge of the substantial risk posed to an

inmate’s health and safety. Young, 508 F.3d at 873. Kulkay’s allegations in this

regard are lacking. At most, he suggests officials should have realized the safety risks

posed by assigning him to the beam saw. But even accepting the allegations as true

and construing them in Kulkay’s favor, the allegations fail to create the inference that

officials had actual knowledge of those safety risks at the time in question.

The absence of certain safety equipment or training and the occurrence of

similar injuries does not impute Faribault officials with knowledge of these

conditions or the risk of harm they represent. To show deliberate indifference via

circumstantial evidence, “the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Farmer, 511 U.S. at 837; accord Young, 508 F.3d at 873.

Kulkay’s allegations are not enough to show officials had actual knowledge of the

allegedly dangerous conditions in the workshop or that they willfully overlooked

those dangers.

This court has rejected similar Eighth Amendment claims by inmates alleging

unsafe workplace conditions based on failures as to evidence of deliberate

indifference. In Bibbs v. Armontrout, an inmate working at a prison license-plate

factory lost portions of his fingers after they became entangled in a machine’s gears.

943 F.2d 26, 26 (8th Cir. 1991). The inmate argued his Eighth Amendment rights

were violated because the safety guards covering the gears had been removed. Id. We

found the inmate had not alleged sufficient facts because he “point[ed] to no evidence

showing that the prison officials knew that guards were not covering the gears of the

[machine] or that they willfully overlooked the condition of the equipment.” Id. at 27.

Similarly, in Warren v. Missouri, an inmate injured his wrist while operating

a table saw in a prison furniture factory. 995 F.2d 130, 130 (8th Cir. 1993). The

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inmate argued prison officials were deliberately indifferent to his safety because they

failed to install safety equipment despite knowing of similar prior injuries. Id. We

granted qualified immunity for the defendants and found that “[e]ven assuming that

one or more defendants had knowledge of the allegedly similar prior accidents[,] . . .

this showing falls far short of creating a genuine issue of deliberate indifference to

a serious issue of work place safety.” Id. at 131.

In Choate v. Lockhart, an inmate fell off a roof while working as part of a

prison construction crew. 7 F.3d at 1373. The district court concluded prison officials

violated the inmate’s Eighth Amendment rights based on several allegedly unsafe

conditions at the worksite. Id. On appeal, this court reversed the district court and

found the defendant officials did not possess the state of mind necessary for liability

under the Eighth Amendment. Id. at 1376. We held that “although the [workplace]

was perhaps not a model of workplace safety, the various safety deficiencies that the

district court cited [did] not establish that [the officials] acted with deliberate

indifference.” Id. at 1375.

This court in Stephens v. Johnson also considered whether failing to provide

various safety measures and failing to train inmates on safety procedures amounted

to an Eighth Amendment violation. 83 F.3d at 199. The inmate-plaintiffs in Stephens

worked in a prison warehouse and jointly filed Eighth Amendment claims against

prison officials for allegedly unsafe working conditions. Id. at 199–200. The inmates’

complaints were extensive:

(1) inmates were not issued safety equipment such as hard hats,

protective eyewear, back braces, and steel-toed boots; (2) the forklift

had no backup warning beeper; (3) the forklift and trucks had

mechanical problems; (4) inmates were lifted up on bare forks of the

forklift to retrieve materials from high shelves; (5) inmates were

required to climb onto high shelves to retrieve objects; (6) dollies used

to move furniture did not have safety straps; (7) inmates were required

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to lift heavy furniture up stairs and into awkward places; (8) inmates had

to obtain drinking water from the bathroom sink; (9) the trucks had no

first aid kits; and (10) inmates did not receive safety training.

Id. at 200. We held that “even assuming [an official] was aware of safety problems

at the warehouse, such a showing falls short of creating a genuine issue of deliberate

indifference to workplace safety.” Id. at 201.

Like in the above cases, the absence of safety equipment or procedures and an

awareness of similar injuries fail to show the Faribault officials were deliberately

indifferent to the risk of harm posed to Kulkay by the beam saw. Moreover, we join

other circuits in concluding that state and federal safety regulations do not establish

a standard for Eighth Amendment violations. See, e.g., Franklin v. Kan. Dep’t of

Corr., 160 F. App’x 730, 736 (10th Cir. 2005) (unpublished); French v. Owens, 777

F.2d 1250, 1257 (7th Cir. 1985). The mere existence of state and federal safety

regulations does not charge prison officials with knowledge of potentially unsafe

conditions in their facility.

The Faribault officials’ actions as to potential safety precautions in the

workshop at most amount to negligence. But mere negligence is insufficient to state

a claim under the Eighth Amendment. Cruel and unusual punishment does not result

whenever a prison official may be to blame for an inmate’s injuries. In the words of

our Supreme Court, “an official’s failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation, cannot under our cases

be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.

As discussed above, the two-pronged qualified immunity analysis asks

“whether the facts shown by the plaintiff make out a violation of a constitutional or

statutory right, and . . . whether that right was clearly established at the time of the

defendant’s alleged misconduct.” Mitchell v. Shearrer, 729 F.3d 1070, 1074 (8th Cir.

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2013). Taking the alleged facts in Kulkay’s favor, Kulkay fails to state a plausible

claim for an Eighth Amendment violation because he has not shown the defendant

officials were deliberately indifferent to his health or safety. Without a plausible

constitutional claim, Kulkay fails the first prong of the qualified immunity analysis.

We need not proceed to the second prong to determine whether the alleged

constitutional violation was also clearly established at the time in question. See

Ransom v. Grisafe, 790 F.3d 804, 812 n.4 (8th Cir. 2015) (per curiam) (citing

Pearson, 555 U.S. at 236; Fields v. Abbott, 652 F.3d 886, 894 (8th Cir. 2011)); cf.

Stoner v. Watlingten, 735 F.3d 799, 803 (8th Cir. 2013) (considering whether a

constitutional right was clearly established after concluding the defendant violated

the right). We conclude the individual defendants are therefore entitled to qualified

immunity.

IV.

Kulkay argues that even if the defendants are entitled to qualified immunity,

this court should still reverse and remand to the district court to allow Kulkay the

opportunity to conduct discovery. But “[u]nless the plaintiff’s allegations state a

claim of violation of clearly established law, a defendant pleading qualified immunity

is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). Kulkay is therefore not entitled to discovery before his

claims are dismissed. See Iqbal, 556 U.S. at 671 (explaining qualified immunity is

“both a defense to liability and a limited ‘entitlement not to stand trial or face the

other burdens of litigation’” (quoting Mitchell, 472 U.S. at 526)); id. at 678–79

(“Rule 8 marks a notable and generous departure from the hyper-technical, code-

pleading regime of a prior era, but it does not unlock the doors of discovery for a

plaintiff armed with nothing more than conclusions.”); Neitzke v. Williams, 490 U.S.

319, 326–27 (1989) (“[By] operating on the assumption that the factual allegations

in the complaint are true, [Rule 12(b)(6)] streamlines litigation by dispensing with

needless discovery and factfinding.”).

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V.

For the foregoing reasons, Kulkay’s claims were properly dismissed. Kulkay has

not sufficiently alleged the defendant officials were deliberately indifferent to his

health or safety and so has not stated a plausible claim for an Eighth Amendment

violation. The officials are thus entitled to qualified immunity. Moreover, because

Kulkay fails to state a claim of violation of clearly established law, he is not entitled

to discovery before dismissal. The judgment of the district court is affirmed.

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