Dexter v. Bosko

2008 UT 29
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Kelvin Dexter, 	No. 20060526
Plaintiff and Appellee,
v.
Jason Bosko, Barry Sanns, and 	F I L E D
Hank Galetka,
Defendants and Appellants. 	April 11, 2008
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Fourth District, American Fork
The Honorable Derek P. Pullan
No. 050102448
Attorneys: 	Peter W. Summerill, James R. Hasenyager, Ogden,
for plaintiff
Mark L. Shurtleff, Att’y Gen., Peggy E. Stone,
Philip S. Lott, Asst. Att’ys Gen., Salt Lake City,
for defendants
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WILKINS, Associate Chief Justice:
¶1 	Defendants, two corrections officers and the warden who
had charge of the plaintiff as a prisoner, appeal the district
court’s denial of their motion to dismiss plaintiff’s personal
injury claims. 	The plaintiff’s claims arise from injuries
suffered in a vehicle accident while being transported in
custody. 	The plaintiff brought the claims under our state
constitutional prohibition on unnecessary rigor in confinement.
On the basis of the pleadings alone, the trial court determined
that the complaint, if proven true, made sufficient allegations
to establish a violation of the Utah Constitution’s unnecessary
rigor clause. 	We agree but remand for additional proceedings in
due course on other material factual issues that may, or may not,
make the claim defective as a matter of law.
BACKGROUND
¶2 	When reviewing a motion to dismiss we assume the
factual allegations in the complaint are true and consider them

1 Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 9,
104 P.3d 1226.
2 Dexter was not one of the inmates who asked to be placed
in a seatbelt.
3 At the time of the accident, prison policy required that
inmates be in a seatbelt while in transport, a policy that was
regularly violated. 	Hank Galetka, then the Utah State Prison
Warden, knowingly disregarded the policy.
4 The district court dismissed Dexter’s claims arising under
Utah’s cruel and unusual punishment clause. 	Dexter did not
appeal that decision.
No. 20060526 	2
in the light most favorable to the nonmoving party.1 	In this
instance, that is the plaintiff, Kelvin Dexter. 	As such, we
recite the facts in that light.
¶3 	In December 2000, Utah State Prison guards Jason Bosko
and Barry Sanns loaded Dexter and eight other inmates into a
fifteen-passenger van for transport by freeway to the Beaver
County Jail. 	The van was equipped with working seatbelts; but
the inmates, who were handcuffed and shackled, were unable to
buckle their own seatbelts. 	Several inmates asked to have their
seatbelts fastened, 2 but Bosko and Sanns refused.3 	Bosko, the
driver, then fastened his own seatbelt and began driving. 	During
the journey, Bosko momentarily diverted his attention from the
road, the van drifted, Bosko overcorrected, and the van went into
the median. 	As a result, the van rolled three times, and Dexter
was thrown from the vehicle. 	Dexter was paralyzed as a result of
injuries sustained in the accident and died five years later due
to complications from those injuries.
¶4 	Dexter filed a complaint against Defendants in December
2004, contending that the prison officials’ failure to place him
in a seatbelt violated his rights under article I, section 9 of
the Utah Constitution. 	Defendants filed a motion to dismiss and
a motion for judgment on the pleadings. 	The district court
denied the motion to dismiss, holding that Dexter’s complaint was
sufficient to state a claim under the unnecessary rigor clause.4
Defendants subsequently filed an interlocutory appeal from the
denial of the motion to dismiss.
ANALYSIS
¶5 	The central question on appeal is the scope of the
unnecessary rigor clause of the Utah Constitution and how, if at

5 Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 15, 144 P.3d
1109.
6 Utah Const. art. I, § 9 (emphasis added).
7 See U.S. Const. amend. VIII (“Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”).
8 See Ind. Const. art. I, § 15 (“[N]o person arrested, or
confined in jail, shall be treated with unnecessary rigor.”); Or.
Const. art. I, § 13 (“No person arrested, or confined in jail,
shall be treated with unnecessary rigor.”); Tenn. Const. art. I,
§ 13 (“[N]o person arrested and confined in jail shall be treated
with unnecessary rigor.”); Wyo. Const. art. I, § 16 (“No person
arrested and confined in jail shall be treated with unnecessary
rigor. 	The erection of safe and comfortable prisons, and
inspection of prisons, and the humane treatment of prisoners
shall be provided for.”).
9 922 P.2d 732, 737 (Utah 1996).
3 	No. 20060526
all, the clause applies here. 	“[W]e review de novo a district
court’s interpretation of constitutional provisions, granting it
no deference.”5
I. 	SCOPE OF THE UNNECESSARY RIGOR CLAUSE
¶6 	Article I, section 9 of the Utah Constitution states as
follows: 	“Excessive bail shall not be required; excessive fines
shall not be imposed; nor shall cruel and unusual punishments be
inflicted. 	Persons arrested or imprisoned shall not be treated
with unnecessary rigor.”6
¶7 	Although the first sentence of article 1, section 9
closely approximates the language of the Eighth Amendment to the
United States Constitution,7 the unnecessary rigor provision has
no federal counterpart. 	Nearly identical provisions, however,
exist in only four other state constitutions. 8 	The relative
rarity of unnecessary rigor clauses results in a dearth of
unnecessary rigor jurisprudence in other jurisdictions, and we
have had few opportunities to interpret or apply the unnecessary
rigor clause of the Utah Constitution.
¶8 	In our 1996 decision in Bott v. DeLand, we said that
“the guarantee against unnecessarily rigorous treatment . . .
protects [prisoners and arrestees] against unnecessary abuse.”9
We also said that the applicable “definition of ‘abuse’ focuses

10 Id. at 740 (quoting Sterling v. Cupp, 625 P.2d 123, 131
(Or. 1981)).
11 Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 10, 140
P.3d 1235.
12 Id. ¶ 11.
13 	Webster’s Third New International Dictionary 1957
(1986).
No. 20060526 	4
on ‘needlessly harsh, degrading, or dehumanizing’ treatment of
prisoners.” 10
¶9 	Defendants argue that the somewhat broad interpretation
of unnecessary rigor in Bott should be rejected and that a
historical analysis supports a more narrow interpretation of the
clause. 	The unnecessary rigor clause, they contend, was meant by
the framers and Utah citizens as a proscription only against the
physically cruel and barbarous treatment of prisoners that
characterized the American colonial era. 	According to
Defendants, the only important distinction between the
unnecessary rigor clause and the cruel and unusual punishment
clause is the stage of criminal proceedings at which the
protection applies, rather than in the scope of the protection
granted.
¶10 	Dexter, on the other hand, argues that the
interpretation of the unnecessary rigor clause in Bott is
supported by the plain language and historical context of the
provision, and that Defendants’ proposed interpretation must be
rejected because it would render the unnecessary rigor clause
meaningless. 	Dexter further asserts that the authors of the Utah
Constitution intended the clause to provide protection from
inhumane treatment and to regulate conditions of confinement and
treatment of inmates.
¶11 	In interpreting provisions of the Utah Constitution, we
begin with a review of the constitutional text. 	We also “inform
our textual interpretation with historical evidence of the
framers’ intent.” 11 	Finally, we may consider well-reasoned and
meaningful decisions made by courts of last resort in sister
states with similar constitutional provisions.12
¶12 	The term “rigor” is defined as “an act or instance of
strictness, severity, harshness, oppression, or cruelty.”13 	Such
a meaning applies well in this context. 	It appears supported by
the plain language of the unnecessary rigor provision itself,

14 1 Official Report of the Proceedings and Debates of the
Convention 257 (1898) (comment of Heber M. Wells).
15 James G. McLaren, The Meaning of the “Unnecessary Rigor”
Provision in the Utah Constitution, 10 BYU J. Pub. L. 27, 40
(1996).
16 Id. at 37. 	Other states have construed their unnecessary
rigor provisions to also protect persons from inhumane prison
conditions. 	Oregon, for example, has said that its unnecessary
rigor provision extends to the conditions of a prisoner’s
incarceration. 	See Sterling v. Cupp, 625 P.2d 123, 129 (Or.
1981) (“The guarantee against ‘unnecessary rigor’ is not . . .
confined only to such historically ‘rigorous’ practices as
shackles, the ball and chain, or to physically brutal treatment
or conditions, though these are the most obvious examples.”).
17 Compiled Laws of Utah 581 (1876) (repealed 1973).
5 	No. 20060526
which prohibits unnecessarily rigorous treatment of persons
arrested or imprisoned, particularly when considered in
conjunction with the other language of the same section regarding
excessive fines, bail, or punishments. 	The history of the
provision, which remains unchanged since statehood, is also
consistent with such a use of the word.
¶13 	At the Utah constitutional convention of 1895,
Delegate, and later Governor, Heber M. Wells proclaimed that the
object of the unnecessary rigor provision was to “protect persons
in jail if they shall be treated inhumanely.”14
¶14 	By today’s standards, the conditions in the prison and
county jails at the time of the Utah constitutional convention
were bleak. 	Surely this inhumane treatment influenced the
convention delegates to include the unnecessary rigor clause in
the Utah Constitution. 	The territorial prison was reportedly in
terrible condition, and the county jails were reported to have
“barbarous practices.”15 	“In Utah, the desire to eliminate
brutality and to ensure decent and humane treatment for convicts
may have been the catalyst of the unnecessary rigor provision.”16
¶15 	Statutes in effect at the time suggest the same
meaning. 	Officers guilty of willful acts of inhumanity or
oppression toward a prisoner were themselves subject to
prosecution resulting in imprisonment or fines.17 	Officers who,
without lawful necessity, assaulted or beat anyone were likewise

18 Id. (repealed 1973).
19 Id. at 650-51 (repealed 1973).
20 Bott v. Deland, 922 P.2d 732, 741 (Utah 1996).
No. 20060526 	6
punishable. 18 	Any injury to a prisoner not authorized by law was
also punishable as if the prisoner had not been convicted.19
¶16 	The prohibition against unnecessary rigor clearly
includes intentional physical abuse of persons under arrest or
imprisoned. 	“[A]lthough police may use ‘reasonable and necessary
force’ in making an arrest, the prohibition against unnecessary
rigor does not allow police officers to commit assault and
battery on a criminal suspect.”20
¶17 	The unnecessary rigor clause of the Utah Constitution
protects persons arrested or imprisoned from the imposition of
circumstances on them during their confinement that demand more
of the prisoner than society is entitled to require. 	The
restriction on unnecessary rigor is focused on the circumstances
and nature of the process and conditions of confinement. 	By
contrast, the cruel and unusual punishment clause in the state
constitution is directed to the sentence imposed. 	While there is
some overlap on a factual level, the purposes are different.
Torture may be cruel and unusual but strict silence during given
hours may not. 	Strict silence, however, may impose unnecessary
rigor or unduly harsh restrictions on the service of one’s
otherwise proper sentence.
¶18 	As with all such fact-intensive inquiries, the
particular event or act in question, and the context in which it
arose, are necessary elements to a determination of whether a
particular set of circumstances rises to the level of a
constitutionally prohibited act.
II. 	PLAINTIFF’S UNNECESSARY RIGOR CLAIM
¶19 	A prisoner suffers from unnecessary rigor when subject
to unreasonably harsh, strict, or severe treatment. 	This may
include being unnecessarily exposed to an increased risk of
serious harm. 	In Bott, we upheld a jury verdict holding prison
officials liable for violating a prisoner’s rights under article
I, section 9 when they failed to provide the prisoner with timely
medical attention despite his repeated requests and

21 922 P.2d 732.
22 Id. at 741. 	But see Sanders v. State, 392 S.W.2d 916,
918-19 (Tenn. 1965) (stating that there was no violation of the
unnecessary rigor clause where arresting officers provided
medical treatment for a fractured leg several hours after an
arrest).
There is some disagreement among courts as to whether a
prison official’s act that increases the risk of harm to an
inmate violates the cruel and unusual punishment clause. 	Compare
Brown v. Mo. Dep’t of Corrs., 353 F.3d 1038 (8th Cir. 2004)
(holding prison officials’ failure to seatbelt inmate upon
request, which resulted in injuries from an accident, could
constitute cruel and unusual punishment), with Dexter v. Ford
Motor Co., 92 F. App’x 637, 641 (10th Cir. 2004) (holding that
failure to seatbelt the inmate did not violate the Eighth
Amendment because “[t]he eventuality of an accident is not
hastened or avoided by whether an inmate is seatbelted”).
7 	No. 20060526
grievances. 21 	We also noted, however, that not every case of
retrospectively inadequate attention to prisoner requests was a
constitutional violation. 	We declared in Bott that a violation
of the prohibition on unnecessary rigor must arise from
“treatment that is clearly excessive or deficient and
unjustified, not merely the frustrations, inconveniences, and
irritations that are common to prison life.” 22 	When the claim of
unnecessary rigor arises from an injury, a constitutional
violation is made out only when the act complained of presented a
substantial risk of serious injury for which there was no
reasonable justification at the time.
¶20 	The allegations of the complaint in the record do not
address the necessity, if any, of the acts involved, nor do they
include any assessment of the risk inherent in the act. 	As such,
the allegations may be sufficient to withstand a motion to
dismiss for failure to state a claim but may not withstand
further evidentiary challenge. 	We leave it to the district court
to resolve the question in the course of further proceedings.
III. 	“FLAGRANT” VIOLATION
¶21 	On remand to the district court, we also offer guidance
on the requirement that the conduct at issue be more than
negligent to be actionable. 	In Bott, we held that the
unnecessary rigor clause is a self-executing provision that

23 922 P.2d at 737-39.
24 Id. at 740.
25 2000 UT 87, ¶ 21, 16 P.3d 533.
26 Id. ¶¶ 23-25.
No. 20060526 	8
allows for awards of money damages.23 	We also held, however,
that prison employees may not be liable for all constitutional
violations: 	“To engender liability, an employee’s conduct must
be voluntary and sufficiently culpable to contravene a prisoner’s
right to be free from . . . unnecessary rigor.”24
¶22 	In Spackman v. Board of Education, we noted that the
common law gives the judiciary authority to provide civil
remedies for constitutional violations under appropriate
circumstances. 25 	Taking advantage of that authority, we
specified that to proceed with a private suit for damages under a
constitutional tort theory, a plaintiff must establish three
elements:
First, a plaintiff must establish that he
or she suffered a “flagrant” violation of
his or her constitutional rights. . . .
Second, a plaintiff must establish that
existing remedies do not redress his or
her injuries. . . .
Third, a plaintiff must establish that
equitable relief, such as an injunction, was
and is wholly inadequate to protect the
plaintiff’s rights or redress
his or her injuries.26
¶23 	The flagrant violation element
means that a defendant must have violated
clearly established constitutional rights of
which a reasonable person would have known.
To be considered clearly established, the
contours of the right must be sufficiently
clear that a reasonable official would
understand that what he is doing violates
that [constitutional] right. 	The requirement
that the unconstitutional conduct be flagrant
ensures that a government employee is allowed

27 Id. ¶ 23 (internal quotation marks and citations
omitted).
9 	No. 20060526
the ordinary human frailties of
forgetfulness, distractibility, or
misjudgment without rendering [himself]
liable for a constitutional violation.27
¶24 	Defendants argue that, even if they violated the
constitutional prohibition on unnecessary rigor when they failed
to buckle Dexter’s seatbelt, the failure to act did not
constitute a flagrant violation. 	They argue that because there
was no meaningful Utah law establishing the contours of the
unnecessary rigor clause, the right to have the seatbelt buckled
was not then a clearly established right. 	Defendants make a
reasonable point. The factual circumstances surrounding Dexter’s
treatment, however, are insufficiently presented to allow us to
decide as a matter of law just how clearly established this
particular concern may have been at the time.
¶25 	If an official knowingly and unjustifiably subjects an
inmate to circumstances previously identified as being
unnecessarily rigorous, that is obviously a flagrant violation.
Where a clear prohibition has not been previously known to the
official, more may be required to establish a flagrant violation.
We are satisfied that a flagrant violation of the unnecessary
rigor clause has occurred whenever the following two elements are
established: 	First, the nature of the act presents an obvious
and known serious risk of harm to the arrested or imprisoned
person; and second, knowing of that risk, the official acts
without other reasonable justification.
¶26 	Whether a violation has occurred will depend on the
specific facts of the case. 	The finder of fact must first
determine whether the risk of harm was serious, and whether that
risk was obvious and known to the defendants. 	If so, the finder
of fact must then address what, if any, justification existed for
the act, as well as the reasonableness of that justification.
¶27 	Affirmed and remanded for proceedings consistent
herewith.
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¶28 	Justice Durrant concurs in Associate Chief Justice
Wilkins’ opinion.
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No. 20060526 	10
NEHRING, Justice, concurring:
¶29 	The lead opinion explores with skill and accuracy the
text and historical context of the Utah Constitution’s
unnecessary rigor clause. 	Moreover, Associate Chief Justice
Wilkins has formulated tests for assaying whether unnecessary
rigor is present and whether it is unconstitutional that are true
to the history and text of article I, section 9. 	I therefore
join the opinion of the court.
¶30 	I write separately to emphasize that the test for
unnecessary rigor formulated by the lead opinion in this case is
limited to claims of a constitutional violation arising from
personal injury sustained by an inmate. 	I believe that this
underscoring is necessary because neither the lead opinion’s test
for what constitutes unnecessary rigor nor the test for when an
actor inflicting unnecessary rigor may be liable applies to
unnecessary rigor claims generally.
¶31 	As the lead opinion notes, Bott v. DeLand defined
unnecessary rigor to include “‘needlessly harsh, degrading, or
dehumanizing’ treatment of prisoners.” 	922 P.2d 732, 740 (Utah
1996) (quoting Sterling v. Cupp, 625 P.2d 123, 131 (Or. 1981)).
Not all needlessly harsh, degrading, or dehumanizing treatment
will result in serious injury. 	Degradation and dehumanization
certainly inflict a heavy toll on a person, but not always in the
form of physical injuries. 	Our nation’s recent and unfortunate
experience with the treatment of Iraqi prisoners is but one
illustration of unjustifiable human degradation unaccompanied, in
most instances, by serious physical injury. 	It is not necessary
in this case to formulate tests to apply to claims of unnecessary
rigor where serious injury is not present. 	It is clear to me,
however, that the focus of such tests is properly on the nature
of the acts to which the inmate was exposed and not on the
foreseeability of injury, serious or otherwise.
¶32 	While the lead opinion makes clear that our test for
making out a constitutional violation in Mr. Dexter’s case
applies only “[w]hen the claim of unnecessary rigor arises from
an injury,” supra ¶ 22, it is less clear that our test for
establishing the flagrant nature of the violation is similarly
limited. 	As applied to Mr. Dexter and to those whose claims
arise from a physical injury, a person who inflicts unnecessary
rigor will be exposed to liability only if “the nature of the act
presents an obvious and known serious risk of harm to the
arrested or imprisoned person; and second, knowing of that risk,
the official acts without other reasonable justification.” 	Supra
¶ 30. 	This two-part test presumes that the official’s act
resulted in physical injury to the person in custody. 	As

11 	No. 20060526
formulated, the test may also be read to imply that money damages
are recoverable only by victims of unnecessary rigor who sustain
demonstrable physical injury. 	No such inference should be
extracted from the adoption of our flagrant violation test. 	It
is a test crafted to address this case and others that involve
physical injury. 	We leave for another day the question of
whether money damages may be recovered by persons in custody who
may have been subjected to unnecessary rigor but who have not
sustained physical injuries.
¶33 	Finally, I turn to the broader issue of whether and how
to apply an originalist interpretation to article I, section 9.
Drawing an analogy between the unnecessary rigor clause and an
originalist interpretation of the Eighth Amendment prohibition
against cruel and unusual punishment in the United States
Constitution, one that would deem constitutional any punishment
not found to be offensive in colonial times, Defendants would
have us similarly circumscribe our assessment of unnecessary
rigor to the practices of that era. 	The lead opinion effectively
employs textual and historical analysis to disable Defendants’
argument. 	Although I endorse that analysis, I believe that the
text of article I, section 9 renders improper an originalist
interpretation of its protections. 	The clause proscribes the use
of “unnecessary rigor.” 	These two words permit several
interpretations to be extracted from them. 	First, some rigor in
the treatment of persons in custody is permitted. 	Only
unnecessary rigor is not. 	This means that necessary rigor is
permitted. 	Necessity is, at least in this context, a protean
term. 	The rigor necessary to manage a prison riot is likely
greater than that required to manage a work release crew.
Similarly, the shifting tides of penal philosophy will affect the
necessity of certain forms of rigor. 	Thus, the presence of the
term unnecessary imposes a temporal relativity on article I,
section 9 that is not present in the text of the Eighth Amendment
and makes this provision of the Utah Constitution a poor
candidate for an originalist interpretation.
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¶34 	Chief Justice Durham and Justice Parrish concur in
Justice Nehring’s opinion.