Robert Smith v. State of Washington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SMITH,
Plaintiff,
and
CALVIN MALONE, Robert Smith, other;
GEORGE O. MITCHELL, Michael
Johnson, other; DARREN PERKINS, Glenn
Tilton, other; DARRELL KENT,
Plaintiffs-Appellants,
v.
STATE OF WASHINGTON,
Defendant,
and
KEVIN QUIGLEY, Secretary, Washington
Department of Social Health Services;
JOHN CLAYTON, Assistant Secretary of
Juvenile Justice and Rehabilitation,
Washington Department of Social Services;
MARK STRONG, Chief Medical Director,
Washington State Special Commitment
Center; LESLIE SZIEBERT, Chief Medical
Director, Washington State Special
No. 18-35263
D.C. No. 3:14-cv-05974-RBL
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Commitment Center; CATHI HARRIS,
Chief of Resident Life, Washington State
Special Commitment Center; CRYSTAL
MCCABE, Safety Officer, Washington State
Special Commitment Center; RICHARD
STEINBACH, Grievance Investigator,
Washington State Special Commitment
Center; TODD DUBBLE, Assistant Director
of Residential Medical, Washington Special
Commitment Center,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 12, 2019**
Seattle, Washington
Before: BOGGS,*** BERZON, and WATFORD, Circuit Judges.
Residents detained at the Washington State Special Commitment Center
sued Washington State under 42 U.S.C. § 1983, alleging that state officials
violated their rights under the Eighth and Fourteenth Amendments by exposing
them to environmental tobacco smoke (“ETS”). The district court granted
summary judgment to the state, concluding that the residents’ evidence failed to
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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show that the exposure to tobacco smoke violated the plaintiffs’ rights under either
the Eighth or Fourteenth Amendment. Because the district court analyzed the
plaintiffs’ Fourteenth Amendment claim under improper Eighth Amendment
standards, we vacate the district court’s grant of summary judgment and remand
for further proceedings consistent with this disposition.
1. “[C]onstitutional questions regarding the conditions and circumstances of
[civil detainees’] confinement are properly addressed under the due process clause
of the Fourteenth Amendment, rather than under the Eighth Amendment’s
protection against cruel and unusual punishment.” Or. Advocacy Ctr. v. Mink, 322
F.3d 1101, 1120 (9th Cir. 2003). Our circuit has “held that court decisions
defining the constitutional rights of prisoners could be relied upon to establish a
floor for the clearly established constitutional rights of persons who are civilly
detained as sexually violent predators.” Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir.
2012) (emphasis added). But we have also emphasized that “civilly detained
persons must be afforded ‘more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed to
punish.’” Id. (quoting Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982)).
A pre-trial detainee bringing a Fourteenth Amendment conditions of
confinement claim must show that the conditions under which that detainee was
confined “put the plaintiff at substantial risk of suffering serious harm.” Castro v.

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County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). The
plaintiffs here are entitled to at least this level of protection. Pre-commitment
detainees are “entitled to protections at least as great as those afforded to [] civilly
committed individual[s] and at least as great as those afforded to [] individual[s]
accused but not convicted of a crime.” Jones v. Blanas, 393 F.3d 918, 932 (9th
Cir. 2004). By contrast, an individual imprisoned upon conviction cannot succeed
by showing only that a condition of confinement put him at substantial risk of
suffering serious harm; under the Eighth Amendment’s Cruel and Unusual
Punishment Clause, applicable to such individuals, the condition of confinement
must cause “suffering . . . inconsistent with contemporary standards of decency.”
Estelle v. Gamble, 429 U.S 97, 103 (1976); see also, e.g., Helling v. McKinney,
509 U.S. 25, 32–33 (1993).
Relying on a line of Eighth Amendment cases related to environmental
tobacco smoke, including Helling, the district court here held that the plaintiffs’
Fourteenth Amendment claim failed because the plaintiffs “have not demonstrated
that they are being forced to endure an amount of ETS that violates contemporary
standards of decency.” But, as just explained, the “contemporary standards of
decency standard” does not apply to the plaintiffs’ claim. The applicable
Fourteenth Amendment standard is more generous: A condition of confinement
may not violate our contemporary standards of decency, yet still create a

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substantial risk of causing a plaintiff to suffer serious harm. See Youngberg v.
Romeo, 457 U.S. 307, 321–22 (1982). Thus, the district court erred in applying the
contemporary standards of decency standard to the plaintiffs’ Fourteenth
Amendment claim.
2. The District Court alternatively held that even if the plaintiffs had raised a
genuine issue of fact as to their exposure to environmental tobacco smoke, they
had demonstrated that defendants acted with deliberate indifference. But, here,
again, the district court improperly imported Eighth Amendment jurisprudence into
the Fourteenth Amendment context. Although a plaintiff must establish under the
Eighth Amendment that the defendant official demonstrated “a subjective
awareness of the risk of harm,” Castro, 833 F.3d at 1068 (quoting Conn v. City of
Reno, 591 F.3d 1081, 1096 (9th Cir. 2010)), under the Fourteenth Amendment a
pre-trial detainee need only prove that the official’s conduct was “objectively
unreasonable.”1 Id. at 1071. That is, the pre-trial detainee must “prove more than
negligence but less than subjective intent—something akin to reckless disregard.”
Id. Again, the plaintiffs here at minimum were entitled to the level of protection
afforded by the Fourteenth Amendment standard for pre-trial detainees. Jones, 393
1 We do not address here whether the current Fourteenth Amendment
standard should apply during the qualified immunity analysis. Cf. Horton ex rel.
Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir. 2019).

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F.3d at 932. So it was error to apply the less generous Eighth Amendment
standard to the plaintiffs’ claim. See, e.g., Gordon v. County of Orange, 888 F.3d
1118, 1125 n.4 (9th Cir. 2018).
3. We remand for further proceedings consistent with this disposition. As
the issues presented in this case are novel and non-frivolous, the district court
should seriously consider appointing counsel upon remand.
VACATED AND REMANDED.

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