Michael D. Passmore v. Klayton Nauman

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 1, 2024*
Decided July 2, 2024
Before
DIANE S. SYKES, Chief Judge
THOMAS L. KIRSCH II, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2848
MICHAEL D. PASSMORE,
Plaintiff-Appellant,
v.
KLAYTON NAUMAN,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:20-cv-00584-JPH-MJD
James Patrick Hanlon,
Judge.
O R D E R
Michael Passmore, an Indiana prisoner, appeals the summary judgment on his
claim that a guard forced him and other prisoners to remain outside while the prison’s
medical dorm was sanitized in response to COVID-19. Passmore asserted that the
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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guard’s conduct, which led to a severe sunburn after several hours outdoors, reflected
deliberate indifference to a substantial risk of serious harm to Passmore and a violation
of his Eighth Amendment rights. See 42 U.S.C. § 1983. But because Passmore did not
meet his burden to overcome the guard’s qualified-immunity defense, we affirm.
We recite the facts by resolving all material disputes and drawing all reasonable
inferences in favor of Passmore, the nonmovant. See Stewart v. Wexford Health Sources,
Inc., 14 F.4th 757, 760 (7th Cir. 2021). On August 7, 2020, guards at Putnamville
Correctional Facility in Greencastle, Indiana, where Passmore is incarcerated, needed to
clear out the prison’s medical dorm to allow a “hazmat” team to sanitize the facility to
combat the spread of COVID-19. One guard, Klayton Nauman, relocated the dorm’s 60
prisoners, including Passmore, to an outdoor recreation area known as the “ballfield.”
Nauman estimated that the prisoners would be able to return to their dorm in one to
two hours. Passmore told Nauman that he was “lily white,” “Nordic,” and going to
burn in the sun. Nauman asked Passmore, “sarcastic[ally],” whether he had a “sun
pass,” presumably meaning a doctor’s orders to stay out of the sun—something
Putnamville’s doctors do not give out. When Passmore replied, “no,” Nauman laughed
and told him that the time outdoors would be good for him.
Passmore says that the hazmat team, which Nauman did not control, dawdled.
As a result, Nauman’s estimate for when prisoners could return to their dorm was off—
Passmore was outside without shade for eight hours. He ended up with severe sunburn
that blistered and hurt for “weeks.” He later developed a dark spot on his right arm
diagnosed as “seborrheic keratosis.” The record contains no medical evidence on the
cause or significance of this condition.
In this suit, Passmore accuses Nauman of violating the Eighth Amendment’s
prohibition on cruel and unusual punishment. His claim was originally part of a bigger
lawsuit against other defendants concerning, among other things, COVID-19 protocols
and medications. The district judge severed this claim, see F ED. R. C IV. P. 20(a)(2), and
Nauman moved for summary judgment. He argued that he was not liable because the
sun did not pose a substantial risk of serious harm to Passmore, the prison had a
penological interest in keeping Passmore outside while the building was sanitized, and
Nauman was entitled to qualified immunity because he did not violate a clearly
established right. See generally Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Passmore
responded that other buildings could have held the men while the dorm was cleaned,
and he cited three cases that, he thought, clearly established that Nauman violated his

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No. 23-2848 Page 3
Eighth Amendment rights: Rhodes v. Chapman, 452 U.S. 337 (1981); Hope v. Pelzer,
536 U.S. 730 (2002); and Helling v. McKinney, 509 U.S. 25 (1993).
The district judge granted Nauman’s motion, reasoning that Passmore had failed
to overcome Nauman’s qualified-immunity defense because the cases he cited were
“meaningfully distinguishable.” Further, the judge continued, no Supreme Court or
Seventh Circuit cases notified Nauman that leaving Passmore “in the sun for several
hours on a relatively mild summer day when necessitated by the need to disinfect the
facility for inmate safety” violated Passmore’s Eighth Amendment rights.
On appeal, Passmore contests the district judge’s conclusion that Nauman was
entitled to qualified immunity. First, he maintains that his cited cases met his burden.
Second, he argues that the judge resolved factual disputes against Passmore. One such
dispute—and Passmore’s primary concern—is whether other buildings had capacity to
hold the prisoners. He also insists that the judge “barely” acknowledged that the
ballfield was unshaded and the sun’s ultraviolet light (rather than the “mild”
temperature) injured him.
When a defendant raises a qualified-immunity defense, the plaintiff bears the
burden of showing that the defendant’s conduct violated a clearly established right.
Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019). A right is clearly established if, at the
time of the alleged conduct, sufficiently analogous caselaw would make it clear to a
reasonable official “that what he is doing violates that right.” Taylor v. Barkes, 575 U.S.
822, 825 (2015) (citation omitted).
The district judge’s ruling, which we review de novo, see Quinn v. Wexford Health
Sources, Inc., 8 F.4th 557, 565 (7th Cir. 2021), was proper. To begin, none of Passmore’s
cited cases would put a reasonable officer on notice that directing prisoners to remain
outside in the sun while an interior is cleansed of a harmful contaminant would violate
the Eighth Amendment. As Passmore concedes in his brief, Hope v. Pelzer was the only
case “that was even close.” But Hope involved guards who cuffed a prisoner to a post
outside for seven hours, forced him to remove his shirt, deprived him of water and
bathroom breaks, and taunted him by giving water to dogs and spilling it in front of
him. 536 U.S. at 734–35. The Supreme Court held that the guards’ actions were “totally
without penological justification.” Id. at 737, 745 (citation omitted). Further, the cruelty
of deliberately and needlessly subjecting a prisoner to dehydration, humiliation, and
topless sun exposure would put a reasonable officer on notice that the officer was
violating the prisoner’s Eighth Amendment rights. Id. at 745.

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By contrast, even on the facts that Passmore asks us to assume (the availability of
other interior space and the heightened ultraviolet radiation on his light skin), for three
reasons he must lose against the qualified-immunity defense. First, Nauman had a
legitimate penological interest, which Passmore does not dispute, in helping to mitigate
the spread of COVID-19 in the medical dorm by clearing the dorm for decontamination.
Second, no evidence suggests that Nauman had control over, or knowledge about, all
the factors that might harm Passmore. For example, even if interior space was available,
Passmore furnished no evidence that Nauman had the authority to move Passmore to
it. Likewise, despite his sarcasm, no evidence suggests that Nauman insincerely
estimated that Passmore would be outside for only two hours, that Nauman controlled
the slow pace of decontamination, or that he knew the ultraviolent radiation level that
day or its effect on Passmore’s skin. Finally, no evidence indicates that Nauman added
needlessly cruel conditions while Passmore was outdoors: He did not deny Passmore
water, a toilet, or clothing. On these facts, a reasonable officer assisting in the
decontamination of a prison by directing a light-skinned prisoner out into the sun
would not know that doing so violates the prisoner’s Eighth Amendment rights.
In closing, we note that Passmore’s brief suggests that he believes the judge’s
decision to sever his claim was in error. But he does not develop an argument about
this; thus, we have no reason to disturb that ruling.
AFFIRMED

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