Case 2:13-cv-00393-DAK Document 2 Filed 06/03/13 Page 1 of 15

John Mejia, Utah Bar No. 13965 Leah Farrell, Utah Bar No. 13696 American Civil Liberties Union of Utah Foundation, Inc. 335 North 300 West Salt Lake City, Utah, 84103
Karra Porter, Utah Bar No. 5223 CHRISTENSEN & JENSEN, P.C. 15 West South Temple, Suite 800 Salt Lake City, Utah 84101 Telephone: (801) 323-5000
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, STATE OF UTAH

TIMOTHY REDMOND, NICK WATSON, GEORGE MONFORT, DANIEL LASSCHE, KRAIG CANFIELD, and all others similarly situated,
Plaintiffs,
vs.
ALFRED BIGELOW, ROBERT POWELL, and SERGEANT ANDERSON,
Defendants.

PLAINTIFFS’ COMPLAINT FOR DAMAGES, AND FOR CLASS-WIDE DECLARATORY AND INJUNCTIVE
RELIEF
(CLASS ACTION)
Civil No.

INTRODUCTION The prisoners in the Olympus wing of the Utah State Prison in Draper, Utah all suffer from physical and mental health conditions. On August 3, 2011, prisoners housed in this wing
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were locked in their fully enclosed cells (no windows/no bars/no openings) while their cells were pumped with air contaminated with CS gas (commonly known as tear gas). Immediately upon being exposed to the gas, prisoners felt burning in their eyes, lungs, and skin. The prisoners began desperately trying to get the attention of prison officials by, among other things, kicking, screaming, and repeatedly pressing their emergency response buttons. However, no response was made to prisoners’ emergency calls. Many of the prisoners thought they were going to die. Adding to the prisoners’ distress, prison officials came into the Olympus wing wearing gas masks and at least one official laughed at the prisoners’ inability to breathe.
After twenty to thirty minutes of being “gassed,” some of the prisoners were released from their cells and taken to an outside courtyard. On information and belief, other prisoners were left in their cells to sit amidst the lingering gas. Some of those prisoners allowed access to clean air were called “sissies” for complaining. Defendants assured prison administrators that those affected would have access to medical treatment, but prisoners were told that they should only seek medical attention if it was an emergency and that prisoners would be responsible for paying for any medical care received. Additionally, prison officials threatened inmates with future “gassings” and told them that “this is what you get for misbehaving.”
On information and belief, prison policy does not prohibit the use of tear gas canisters in the circumstances described herein, that is, to respond to misconduct by a single prisoner. Moreover, on information and belief, it is also currently the policy of the prison to use chemical agents on a smaller scale against individual prisoners. Moreover, Plaintiffs are unaware of any policy that requires prison officials in the Olympus wing to adequately respond to prisoners in
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distress when chemical agents are used in the prison, whether it is the targeted individual or prisoners who are not specifically targeted but exposed to the agents nonetheless.
JURISDICTION AND VENUE 1. This action arises under the Eighth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, Section 9 of the Utah Constitution. 2. Jurisdiction exists pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 1367(a). 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), in that the Plaintiffs’ claims all arose within the District.
PLAINTIFFS 4. Named Plaintiff Timothy Redmond is an adult citizen and resident of the state of Utah. Plaintiff Redmond had been diagnosed with depression, panic anxiety disorder, and posttraumatic stress disorder stemming from a childhood incident. On August 3, 2011, Mr. Redmond was incarcerated in the Utah State Prison in the Olympus wing. However, Mr. Redmond was subsequently released. 5. Named Plaintiff Nick Watson is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Watson has a history of depression and attempted suicide. He also suffers from anxiety that stems from an electrical fire incident that occurred at his residence in 2002. 6. Named Plaintiff George Monfort is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Monfort has been diagnosed with paranoid schizophrenia and takes medication to treat his anxiety, depression, schizophrenia, and to help him sleep.
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7. Named Plaintiff Daniel Lassche is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Lassche has kidney problems and high blood pressure and receives dialysis treatment. 8. Named Plaintiff Kraig Canfield is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Canfield has been diagnosed with, among other things, obsessive-compulsive disorder, anxiety disorder, and psychotic disorder.
THE PLAINTIFF CLASS 9. The named Plaintiffs bring this action on their own behalf and as representatives of the following two classes:
1) All prisoners currently incarcerated in the Olympus wing of the Utah State Prison (the “Injunctive Class”); and 2) All prisoners and former prisoners who were in their cells in the Olympus wing of the Utah State Prison on August 3, 2011, and were thereby exposed to noxious ochlorobenzylidene malononitrile (“CS gas”) (the “Damages Class”). 10. Class certification of the Injunctive Class is appropriate under F.R.Civ.P. 23(a) and (b)(2) because the Defendants have acted or refused to act on grounds that apply generally to the Injunctive Class so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole and:
a. The members of the Injunctive Class are so numerous that joinder of all persons is impracticable. Upon information and belief, there are at least 150 inmates in the Olympus wing.
b. There are questions of fact or law common to the class:
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(i) Common questions of fact include the current policies, practices and customs regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison, including whether it is policy, practice or custom to:
- refuse to answer emergency call buttons when tear gas is deployed; - wait 20-30 minutes to allow affected prisoners to leave their cells; - refrain from providing medical treatment after prisoners are exposed to tear gas; and - discourage prisoners affected by chemical agents from filing grievances. (ii) Common questions of law include: whether Defendants’ current policies, practices and customs regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison comply with the federal and Utah constitutions, particularly given the mental and physical health conditions of the prisoners housed there; whether those policies, practices and customs create a risk of future harm to the Injunctive Class; and related issues. c. The representative Plaintiffs’ claim is typical of the claims of the class; in fact, the claims of all of the Injunctive Class members are identical. d. The representative Plaintiffs will fairly and adequately represent the interests of the Injunctive Class. The named Plaintiffs have manifested willingness and persistence to assert claims on their own behalf and that of their fellow prisoners, and have retained counsel experienced in class action and other complex litigation. 11. Class certification of the Damages Class is appropriate under F.R.Civ.P. 23(a) and (b)(3) because questions of law or fact common to the Damages Class predominate over any questions
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affecting only individual members, class action is superior to other available methods for fairly and efficiently adjudicating the controversy; and:
a. The members of the Damages Class are so numerous that joinder of all persons is impracticable. Upon information and belief, the total number of class members is approximately 150 men.
b. There are questions of fact or law common to the Damages Class that predominate over the only factual issue that may vary among members, i.e., damages:
(i) Common predominating questions of fact include: How and why the Olympus wing prisoners were exposed to CS gas; the circumstances under which CS gas was deployed against a prisoner in the wing; why there was no response to emergency calls from prisoners during the incident or other action to explain what was happening; whether Defendant Powell threatened or otherwise prevented prisoners from obtaining prompt medical attention following exposure to the CS gas; and other related issues.
(ii) Common predominating questions of law include: What standard of review applies to the defendants’ alleged conduct; whether the defendants’ conduct rose to the level of a constitutional deprivation; and related issues. c. The representative Plaintiffs’ claim is typical of the claims of the Damages Class; in fact, the liability claim is identical. d. The representative Plaintiffs will fairly and adequately represent the interests of the Damages Class. The named Plaintiffs have manifested willingness and
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persistence to assert claims on their own behalf and that of their fellow prisoners, and have retained counsel experienced in class action and other complex litigation.
DEFENDANTS 12. Defendant Alfred Bigelow is warden of the Utah State Prison in Draper, Utah. On information and belief, Defendant Bigelow is responsible for creation and oversight of policies, practices and customs regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison. Mr. Bigelow is sued in his official capacity for declaratory and injunctive relief only. 13. Defendant Robert Powell is, and was at all relevant times, a resident of the State of Utah, and was employed as a Captain at the Utah State Prison. He was the head supervisor of all of the correctional staff on duty during the incident that gives rise to this action. Captain Powell is sued in his personal capacity. 14. Defendant Anderson (first name unknown to Plaintiffs) is, and was at all relevant times, a resident of the State of Utah. Said defendant was employed as a guard at the Utah State Prison on August 3, 2011. Said defendant is sued in his personal capacity.
EXHAUSTION OF REMEDIES / INAPPLICABILITY OF PRISONER LITIGATION REFORM ACT 15. Plaintiff Redmond is not presently incarcerated. Consequently, this litigation is not subject to the provisions of the Prisoner Litigation Reform Act, including requirements of exhaustion of remedies. See Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005).
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16. In any event, any requirement of exhaustion of remedies is satisfied by a named Plaintiff’s exhaustion of such remedies. Named Plaintiff Nicholas Watson exhausted his remedies as follows:
a. Mr. Watson submitted a timely Inmate Grievance Form on August 8, 2011. The grievance was denied by a member of Prison staff on August 17, 2011, which denial was affirmed by Defendant Powell on August 25, 2011.
b. Mr. Watson submitted a Level 2 appeal on August 30, 2011. The Level 2 appeal was denied by Defendant Bigelow on September 22, 2011.
c. Mr. Watson filed a Level 3 appeal on October 3, 2011. The Level 3 appeal was denied, and Mr. Watson’s grievance was dismissed by the Utah Department of Corrections on October 26, 2011. No further administrative review was available.
STATEMENT OF FACTS The following allegations are pled in their totality and in the alternative. 17. On August 3, 2011, the Plaintiffs and all other members of the Class were incarcerated in the Olympus wing of the Utah State Prison. 18. The Olympus wing houses prisoners with physical and/or mental health conditions, including age-related infirmity. 19. Cells in the Olympus wing are fully enclosed; they do not have bars, windows, or other openings. Air is piped into cells through a ventilation system. 20. At approximately 4:00 p.m., the Plaintiffs and all other members of the Class were secured in their cells.
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21. Suddenly and without warning, each of the cells became infused with CS gas (commonly referred to as “tear gas”). 22. CS gas is composed of o-chlorobenzylidene malononitrile. The compound is a white solid powder mixed with a dispersal agent, like methylene chloride, which carries the particles through the air. 23. Defendants were each aware of the risks and effects of CS gas. In fact, guards at the Prison do not deploy CS gas unless they are themselves wearing masks. 24. Defendants knew that, if CS gas entered the ventilation system in the Olympus wing while prisoners were secured in their cells, the prisoners would experience pain, difficulty breathing, burning sensations in their lungs, eye, throat and skin irritation, panic, and other harm. 25. Prisoners began screaming, yelling, kicking their doors, and otherwise desperately attempting to get the attention of Prison personnel. Many prisoners believed that the wing was on fire, and/or that they were going to die. 26. Many prisoners pressed their emergency communication buttons, but received no response. Upon information and belief, the jail personnel who normally would have responded to prisoners’ emergency calls were instructed not to respond to such calls while the CS gas was permeating the Olympus wing. Consequently, inmates had no idea what was happening to them. 27. Approximately 15 minutes after the cells became infused with CS gas, the air flow of the Olympus wing’s ventilation system was reversed for about one minute when a sergeant entered the wing. After the sergeant’s departure from the wing, tainted air began flowing back into the cells again.
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28. While the prisoners were suffering the effects of the CS gas, Defendant Anderson entered the wing and began laughing at the prisoners’ inability to breathe. 29. After 20-30 minutes of the CS gas exposure, the prisoners in B and C blocks of Olympus were taken outside to a courtyard. Upon information and belief, prisoners in A and D blocks were not removed from their cells. 30. In the courtyard, Captain Powell discouraged the reporting of medical symptoms by prisoners, asking some of the assembled prisoners, “Any of you sissies need medical help?” Captain Powell indicated to the prisoners that only those who felt it was an emergency should see a med tech. 31. Defendant Powell was aware that, unless prisoners are permitted to shower and otherwise remove CS gas from their skin, surrounding air, and belongings, the CS gas would continue to burn and irritate inmate’s skin and lungs. 32. One of the assembled prisoners told Captain Powell that he was experiencing lung problems, and another reported having a panic attack. 33. Captain Powell and another prison official told some of the assembled prisoners that counselors would be provided to prisoners to address the incident, but no counselors were provided. 34. Even though the prisoners’ need for medical attention was caused entirely by the conduct of Defendants and the prisoners were wholly without fault with respect thereto, Captain Powell refused to waive the prohibitive cost of seeking medical care.
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35. Those Prisoners in Olympus wing who are capable of employment earn only 40 cents per hour. At the time of the incident, the Prison was charging $1 to fill out a request to see a prison doctor, and another $4 to see the doctor. 36. The Prison phones in the Olympus wing were shut down for approximately two days after the gassing. Upon information and belief, this action was taken to conceal the gassing incident from the public, or as an implicit threat against prisoners if they discussed the incident with others. 37. The Named Plaintiffs learned after the incident that several members of the Special Operations Unit personnel had deployed a CS gas “bomb” against a single, unarmed prisoner who was refusing to return to his cell from the courtyard. 38. Defendant Powell misleadingly reported to Prison administration that “a medical representative was called in to offer medical treatment to any affected inmates,” and that “[a]ll inmates affected by the gas were seen by medical staff.” In reality, a registered nurse told prisoners that the effects of the gas would simply go away in time and asked prisoners if they wanted to go to the infirmary. Only a few prisoners went to the infirmary. 39. Defendant Powell also falsely reported to Prison administration that only “small” amounts of CS gas was drawn into the air system, that the Prisoners’ exposure to the CS gas was “minimal,” and that the prisoners had been “immediately” evacuated once Prison officials learned of the exposure. These statements were untrue and, upon information and belief, were made as part of an effort to cover up or mischaracterize the incident. 40. Defendants have not apologized or taken steps to reassure prisoners that similar incidents will not occur again. To the contrary, guards have utilized the incident to threaten prisoners. For
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example, Officer Sergeant Forsath subsequently threatened to “gas again.” Other guards have characterized the incident as a “training mission.” 41. On information and belief, the policies, procedures, and customs of the Utah State Prison allow the conduct described herein with respect to the deployment of chemical agents in the Olympus wing and encourage the nature of the response to the prisoners affected by the gas. Accordingly, it is substantially likely that this incident will not be an isolated event in the Olympus wing.
FIRST CLAIM FOR RELIEF (Eighth Amendment, all Defendants) 42. All other paragraphs of this Complaint are re-alleged and incorporated as though fully set forth herein. 43. Based on the facts set forth above, the named Plaintiffs and the classes they represent assert that the Defendants violated their rights under the Eighth Amendment by creating an unconstitutional condition of confinement. 44. The conditions surrounding Plaintiffs’ confinement posed a substantial risk of serious harm to Plaintiffs’ health or safety. 45. Defendants acted with deliberate indifference to the risk of harm to Plaintiffs because they were aware that exposure to CS gas is harmful yet did not take steps to alleviate the risk to Plaintiffs by, for example, responding to Plaintiffs’ emergency calls, timely removing Plaintiffs from their cells; providing a mechanism by which Plaintiffs could remove the CS agent from their skin, clothing, and belongings; providing Plaintiffs access to medical treatment and counseling.
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46. Plaintiffs suffered physical and emotional injury from the deployment of CS gas in the Olympus wing. The physical injuries stem from the chemical compounds in the CS gas, and include intense and painful burning in the eyes, nose, throat and skin, and lung congestion, which made it difficult to breathe. Prisoners also suffered emotional damages, including increased and continuing anxiety, worsening of existing conditions such as PTSD, and so on. 47. An injunction is necessary to prevent future recurrences of these violations, because they stemmed from the policies, practices and/or customs of the Utah State Prison in Draper, Utah.
SECOND CLAIM FOR RELIEF (Eighth Amendment; Defendant Powell) 48. All other paragraphs of this Complaint are re-alleged and incorporated as though fully set forth herein. 49. Based on the facts set forth above, the named Plaintiffs and the Damages Class they represent assert that Defendant Powell violated their rights under the Eighth Amendment by failing to provide medical attention needed as a result of the Defendants’ own conduct, and threatening or otherwise improperly taking steps to prevent prisoners from seeking medical attention.
THIRD CLAIM FOR RELIEF (Eighth Amendment; all Defendants) 50. All other paragraphs of this Complaint are re-alleged and incorporated as though fully set forth herein. 51. The Defendants’ deployment of CS gas posed a substantial risk of serious harm to Plaintiffs’ health or safety.
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52. Defendants’ deployment of CS gas was not a good faith effort to restore discipline and order but was used sadistically for the very purpose of causing harm as demonstrated by, among other things, that: a. Defendants acted with force greater than necessary to quell the behavior of one unarmed prisoner; b. Defendants failed to institute a policy to minimize the effects of CS gas to inmate bystanders; c. Defendants used force indiscriminately when they had knowledge that CS gas had infiltrated the ventilation system and affected inmates that were locked in their cells and posed no threat and yet left these prisoners in their cells for 20 to 30 minutes. 53. An injunction is necessary to prevent Defendants from taking these actions again because, on information and belief, they were taken pursuant to the policies, practices, and/or customs of the Utah State Prison at Draper, Utah.
FOURTH CLAIM FOR RELIEF (Article I, § 9 of the Utah Constitution; all Defendants) 54. All other paragraphs of this Complaint are re-alleged and incorporated as though fully set forth herein. 55. The acts complained of by the Plaintiffs herein presented an obvious and known substantial risk of serious injury for which there was no reasonable justification at the time. 56. The acts complained of constituted a flagrant violation of the plaintiffs’ rights under Article I, § 9 of the Utah Constitution to be free from cruel and unusual punishment and not to be treated with unnecessary rigor. 57. Existing remedies do not redress the plaintiff’s injuries, because there are no comparable remedies under state common or statutory law, and because the protections of Article I, § 9 are broader than those of the United States Constitution.
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58. Equitable relief alone is wholly inadequate to remedy the alleged violations, which include personal and medical injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully prays for the following relief: 1. Certify the proposed Injunctive and Damages classes; 2. Declare that the events described above violated the United States Constitution and the Utah Constitution; 3. Enter an injunction directing that Defendants adopt and comply with written policies regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison at Draper Utah; 4. Enter an order enjoining Defendants from refusing to respond to emergency calls; 5. Award damages to each member of the Damages Class; 6. Grant an award of attorneys’ fees and expenses; 7. Grant such other equitable and other relief as the Court deems just and proper.
DATED THIS 3rd day of June, 2013.
ACLU of Utah
/s/ John Mejia John Mejia Leah Farrell
CHRISTENSEN & JENSEN, P.C. Karra J. Porter
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

TIMOTHY REDMOND, et al., Plaintiffs,
vs. ALFRED BIGELOW, et al.,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:13CV393DAK
Judge Dale A. Kimball

This matter is before the court on Plaintiffs Timothy Redomond, Nick Watson, Justin Strong, George Montfort, Daniel Lassche, and Kraig Canfield’s Motion for Class Certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. The court held a hearing on the motion on April 2, 2014. At the hearing, Plaintiffs were represented by Karra Porter and John Mejia, and Defendants were represented by Joni J. Jones and Kyle J. Kaiser. The court has carefully considered the materials submitted by the parties, as well as the facts and law relevant to the motion. Now being fully advised, the court renders the following Memorandum Decision and Order.
BACKGROUND This potential class action arose out of an incident on August 3, 2011, at the Olympus Facility at the Utah State Prison, in which prison guards used ochlorobenzylidenemalononitrile (“CS gas”) against an inmate who refused to leave one of the recreation yards and return to his cell. The guards released the CS gas grenade near two air vents which distributed the gas to

several cell blocks within the Olympus Facility. Plaintiffs are inmates who were in their cells at the time the CS gas was released. The Olympus Facility is a self-contained housing unit on the grounds of the Utah State Prison. It houses up to a maximum of 168 medically fragile inmates and inmates with serious mental health issues.
Plaintiffs seek to certify the following two classes: (1) the Injunctive Class, defined as “all prisoners currently incarcerated in the Olympus wing of the Utah State Prison,” and (2) the Damages Class, defined as “all prisoners and former prisoners who were in their cells in the Olympus Wing of the Utah State Prison on August 3, 2011, and were thereby exposed to noxious ochlorobenzylidenemalononitrile (“CS gas”).”
The Injunctive Class seeks an injunction requiring Defendants to adopt and comply with written policies regarding the deployment of chemical agents in the Olympus Facility of the Utah State Prison. The Damages Class seeks damages for harm suffered by the class from the incident on August 3, 2011.
DISCUSSION Plaintiffs’ Motion for Class Certification Plaintiffs ask this court to certify two subclasses, to certify the named inmates as class representatives, and to certify their counsel as Class Counsel. There is no dispute that the ACLU and Christensen & Jensen are adequate class counsel. Therefore, the only dispute is whether the two proposed subclasses meet the requirements for certification and whether the named inmates are adequate class representatives. Rule 23 of the Federal Rules of Civil Procedure governs class certification. Rule 23(a) provides four prerequisites that must be met for a representative party to bring an action on behalf of all members of a class: “(1) the class is so numerous that joinder of all members is
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impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); see also Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988).
If the prerequisites of Rule 23(a) are met, then one of the requirements of Rule 23(b) must also be satisfied in order to maintain a class action. Id. R. 23(b). The three requirements in Rule 23(b) include (1) whether the prosecution of separate actions by members of the class would produce inconsistent or dispositive results, (2) whether the defendant has acted or refused to act on grounds that apply generally to the class, and (3) whether the court finds that questions of law or fact common to class members predominates over questions affecting only individual members and that a class action is superior to other methods of adjudicating the controversy.
The party seeking certification bears the burden of establishing that certification is proper. Ditty v. Check Rite Ltd., 182 F.R.D. 639, 641 (D. Utah 1998). For purposes of class certification, the well-pleaded facts of the Complaint are taken as true. In re Playmobil Antitrust Litigation, 35 F. Supp. 2d 231, 236 (E.D.N.Y. 1998). Furthermore, “[w]hen there is a question as to whether certification is appropriate, the Court should give the benefit of the doubt to approving the class.” In re Workers’ Compensation, 130 F.R.D. 99, 103 (D. Minn. 1990).
The parties dispute whether Plaintiffs have met both Rule 23(a)’s and Rule 23(b)’s requirements. The court, therefore, will address each requirement in turn. 1. Rule 23(a) Requirements
A. Numerosity Plaintiffs argue that the joining every member of the proposed classes, or litigating individual suits, would be impracticable. The Tenth Circuit has not adopted a specific numerical
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threshold for class certification and has stated that the inquiry must be made based on the particular circumstances of the case. Rex v. Owens, 585 F.2d 432, 436 (10th Cir. 1978). “Satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.” Lowery v. City of Albuquerque, 273 F.R.D. 668, 678 (D.N.M. 2011).
“Rule 23(a)(1) is an impracticability of joinder rule, not a strict numerosity rule. It is based on considerations of due process, judicial economy, and the ability of claimants to institute suits.” 1 William R. Rubenstein, Alba Conte, Herbert Newberg, Newberg on Class Actions § 3:11 (5th ed. 2011). Factors relevant in determining whether Plaintiffs have proven numerosity include “the class size, the geographic diversity of the class members, the relative ease or difficulty in identifying members of the class for joinder, the financial resources of the class members, and the ability of class members to institute individual lawsuits.” Pueblo of Zuni v. United States, 243 F.R.D. 436, 445 (D.N.M. 2007).
The parties dispute the number of inmates at issue. The Injunctive Class is defined as all prisoners currently incarcerated in the Olympus Wing of the Utah State Prison. The facility can house a maximum of 169 inmates. Defendants question whether the current prisoners within the class would even have standing to bring this claim unless they were incarcerated on August 3, 2011. A class has standing to request injunctive relief where they complain of “officially endorsed policies” and where “there is a likelihood of recurring injury” as a result of those policies. Deshaen E. v. Safir, 156 F.3d 340, 345 (2d Cir. 1998). Plaintiffs allege that the policies, practices, and/or customs of the Utah State Prison allow the use of CS gas in a manner that poses a threat to the Injunctive Class. Plaintiffs allege that the gassing event occurred pursuant to prison policy and that it is substantially likely that this incident will not be an isolated
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event in the Olympus Facility. As such, the proposed Injunctive Class has standing in this case.
Defendants also argue that joinder of class members is not impracticable because all the current inmates are in the same geographic area, their identifies are easily ascertainable, and they can be contacted. Plaintiffs admit that the Injunctive Class is in the same geographic area and their identities are easily ascertainable, but Plaintiffs point out that those are not the only considerations that apply. Numerosity looks at whether the Plaintiffs would suffer “a strong litigational hardship or inconvenience” if joinder is required. Lowery v. City of Albuquerque, 273 F.R.D. 668, 678 (D.N.M. 2011). Plaintiffs are prisoners who enjoy very little freedom in their daily lives. They are not at liberty to meet and confer with counsel without permission from Defendants. The fact that Plaintiffs are all in one place does not mean that individual suits would not be difficult.
Whether there are fifty or one hundred and fifty members of the class, the logistics of representing a large number of inmates is unquestionably difficult. Plaintiffs cannot easily communicate with counsel by email or telephone. Communication with each Plaintiff must be done through visits. In addition, Plaintiffs are not in control of their housing assignments and can be moved or released at any time. Joining each member of the proposed Injunctive Class individually is impracticable.
Moreover, the remedy requested by the Injunctive Class is requiring the prison to adhere to written policies regarding the deployment of chemical agents near ventilation systems. The nature of this remedy does not allow for the prosecution of separate claims. Such an injunction must be effective as to all of the class or none of the class. Individual remedies are not available.
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The Damages Class is limited to all prisoners and former prisoners who were in their cells in the Olympus Wing of the Utah State Prison on August 3, 2011, and were thereby exposed to CS gas. Plaintiffs’ alleged Eighth Amendment violations require an analysis of whether the inmate was confined under conditions posing a substantial risk of serious harm to which prison officials were deliberately indifferent, or whether force was excessive. See DeSpain v. Uphoff, 264 F.3d 965, 977-78 (10th Cir. 2001). DeSpain does not require serious harm to be shown in cases when the use of chemical agents, such as pepper spray, can be considered the use of excessive force. Id. at 978. In reviewing the pepper spray claim, the court expressly refused to apply the Farmer test and its serious harm requirement. Id. The court noted that the plaintiff had not alleged “any significant physical harm from the pepper spray,” and instead of adopting a significant physical harm requirement, noted that “the ultimate constitutional inquiry is directed at whether an unnecessary and wanton infliction of pain has occurred.” Id.
This case is similar to the pepper spray in DeSpain. The issue is whether an unnecessary and wanton infliction of pain has occurred. The members of the Damages Class did not pose any security threat when they were gassed while locked in their cells. In any event, Plaintiffs have alleged various serious injuries as a result of the gas exposure. Moreover, at this stage of the litigation, the court is looking only at Plaintiffs’ allegations. The court is not weighing the merits or considering whether the claims can or will survive a qualified immunity analysis.
Defendants further contend that the named Plaintiffs indicate a wide degree of variation in the effects of the CS gas from inmate to inmate and section to section. However, there is no legal support for Defendants’ contention that Plaintiffs have the burden to show that the CS gas affected inmates in each section similarly. To the extent that some prisoners in certain sections may have been exposed to higher levels of gas than others, Defendants may simply be
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responsible for a greater amount of damages to those class members. The potential differences in damages do not prevent class certification. Classes certified under Rule 23(b)(3) may have “highly individualized claims or require an individualized plaintiff-by-plaintiff determination of monetary damages.” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999). The important issue for class certification is that there is a common legal grievance shared by the Damages Class.
Defendants also claim that it is not impracticable to join each member of the Damages Class because Plaintiffs know each of the inmates affected, many are still in the prison system, and others are likely still on probation. However, as stated above, Defendants ignore the difficulties inherent in representing inmates. Their lack of freedom, restrictions on contact, and inability to control their location all present significant difficulties that make joinder of each member of the class impracticable. Accordingly, the court finds that Plaintiffs have demonstrated the numerosity requirement.
B. Commonality “A finding of commonality requires only a single question of law or fact common to the entire class.” Miller v. Basic Research LLC, 285 F.R.D. 647, 654 (D. Utah 2010). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). In this case, both of the proposed classes’ claims arise from the same event – the inmates’ exposure to CS gas in the Olympus Facility. For the Damages Class, common issues of fact include the circumstances under which the CS gas was deployed, Plaintiffs’ inability to exit their cells despite the gas exposure, delayed responses to emergency calls, and the actions taken toward the inmates. The common questions of law for the Damages Class include the proper
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standard of review to apply to the claims, whether Defendants’ conduct rose to the level of a deprivation of constitutional rights, and how to measure of damages.
The common issues of fact for the Injunctive Class include the current policies, practices, and customs regarding the deployment of chemical agents in the Olympus Facility and whether it is policy, practice, or custom to refuse to answer emergency calls when CS gas is deployed, to wait 20-30 minutes to allow affected prisoners to leave their cells, to refrain from providing medical treatment after exposure to CS gas, to refuse to provide medical treatment to inmates who have been harmed by the CS gas, and/or to discourage inmates from filing grievances. Common questions of law for the Injunctive Class include: whether Defendants’ current policies, practices, and customs regarding the deployment of chemical agents in the Olympus Facility comply with constitutional standards and whether those policies, practices and customs create a risk of future harm to the Injunctive Class. All of the members of the Injunctive Class face the risk of future gassing if the prison’s policy is not changed. Therefore, the court concludes that Plaintiffs have met the commonality requirement.
C. Typicality To satisfy the typicality requirement, the named Plaintiffs must show that they “possess the same interests and suffered the same injuries as the proposed class members.” Swisher v. United States, 189 F.R.D. 638, 640 (D. Kansas 1999). The named Plaintiffs’ claims need not be identical to those of the other class members, but “must resemble the class’s claims to an extent that adequate representation can be expected.” Id. A claim is typical if it arises from the same event or course of conduct and is based on the same legal theory. Rosario, 963 F.2d 1013, 1018 (7th Cir. 1993). For the Damages Class, the named Plaintiffs’ claims arose from the exact same event as
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the rest of the proposed class – they were locked in their cells when the CS gas went through the ventilation system. The named Plaintiffs were treated the same as the other inmates and seek damages under the same legal theories. To defeat a finding of typicality, Defendants mention the inmate who caused the gassing, however, he is explicitly not a member of the class. In addition, as stated above, slight variances on the effect of the gas on class members may be relevant for damages but they are not significant enough to defeat class certification.
For the Injunctive Class, four of the named Plaintiffs remain housed in the Olympus Facility and have claims that are exactly representative of the Injunctive Class. The named Plaintiffs face the likelihood of future harm if Defendants continue their current policies, practices, and/or customs regarding the deployment of chemical agents. The named Plaintiffs have the same interest in obtaining injunctive relief requiring Defendants to adopt and adhere to policies and procedures that would prevent unwarranted CS gas exposure.
With respect to the Injunctive Class, Defendants contend that Plaintiffs have provided no representatives who have exhausted their administrative remedies. This defense creates an irreconcilable conflict. Vicarious exhaustion has not been explicitly adopted by the Tenth Circuit. However, it requires at least one member of the class to have exhausted his or her administrative remedies. McGoldrick v. Werhotlz, 185 F. Appx. 741, 743 (10th Cir. June 22, 2006).
However, Plaintiff George Montfort has exhausted his administrative remedies. Thus, the exhaustion requirement is satisfied for the rest of the class. Goldrick v. Werhotlz, 185 Fed. Appx. 741, 743 (10th Cir. 2006). Montfort filled out a grievance form the day after the gassing incident. He gave the form to Lieutenant Zorn, who threw it away. As such, Montfort attempted to exhaust his administrative remedies but was prevented from doing so. By law, he has
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exhausted his remedies. Baughman v. Harless, 142 Fed. Appx. 354, 358-59 (10th Cir. 2005) (“If prison officials prevent a prisoner from proceeding with exhaustion of administrative remedies, prison officials render that remedy unavailable such that a court will deem the procedure exhausted.”).
Accordingly, the court concludes that Plaintiffs have met the typicality requirement for both proposed classes.
D. Adequacy of Representation The adequate representation requirement of Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Rutter, 314 F.3d at 1188-89. “Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members? and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Id. In this case, there is no reason to believe that the interests or goals of the named Plaintiffs and the class will diverge at any point. The named Plaintiffs and members of the class were harmed by the same event or face the possibility of similar harm by the same actions taken by the Utah State Prison guards and policies. The named Plaintiffs and classes share the same interest in procuring declaratory and injunctive relief. Again, Defendants assert that the class representatives for the Injunctive Class are inadequate because they have failed to exhaust their administrative remedies. However, George Montfort has exhausted his administrative remedies. Defendants also argue that George Montfort is not an adequate representative because they did not like the answers he gave in his deposition and Defendants doubt that his current mental condition makes him capable of acting in the best interest of the class. Plaintiffs dispute Defendants’ characterization that Monfort did
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not answer questions appropriately at his deposition. The court does not believe that his mental illness disqualifies him or that specific answers call his role into question. Therefore, Montfort can adequately represent the Injunctive Class.
With respect to the Damages Class, Defendants state that several of the named Plaintiffs are not adequate representatives for their class because in their depositions they indicated that they do not expect to get any damages. However, testimony that a prisoner does not expect to get money out of this lawsuit does not create an irreconcilable conflict between the class representative and class members. An indication as to expectations does not indicate that the prisoner will not seek damages or believe that he is legally entitled to damages. The testimony merely states an expectation and could have been an attempt to not look greedy. The testimony shows no real conflict between the representatives and the class. Therefore, the court concludes that the named Plaintiffs are adequate representatives of the Damages Class. 2. Rule 23(b) Requirements
Having determined that Plaintiffs meet the prerequisites of Rule 23(a), the court must analyze whether Plaintiffs have demonstrated that they also meet one of the requirements under Rule 23(b). Plaintiffs seek certification for the Injunctive Class under Rule 23(b)(2) and certification for the Damages Class under Rule 23(b)(3).
A. Injunctive Class Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) certification is appropriate when “a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011). Rule
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23(b)(2) certification “is an especially appropriate vehicle for civil rights actions.” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980).
The Injunctive Class seeks an injunction that would benefit each member of the class by requiring the Utah State Prison to adopt and adhere to policies regarding the deployment and response to CS gas. The members of the Injunctive Class are inmates currently incarcerated in the Olympus Facility. The lack of action by Defendants with respect to a CS gas policy makes certification appropriate. Individual remedies are not at issue. Moreover, due to the change in the population of the Olympus Facility, which is outside of any of the named Plaintiffs’ control, could make an individual Plaintiff’s claim moot. However, a class defined as the current inmates of the Olympus Facility allows the action to avoid mootness concerns.
Defendants argue that the claims in this case related to the deployment of CS gas to restrain a mentally challenged prisoner is extremely fact-specific and each inmate’s particular reaction to CS gas is also unique. But, the Injunctive Class seeks an injunction that would apply to each member of the class without reference to individual circumstances.
Defendants also attack certification by arguing that Plaintiffs seek an injunction directing Defendants to adopt and comply with written policies regarding the deployment of chemical agents in the Olympus Facility but they do not spell out what these polices are or how they would prevent any unconstitutional conditions. Defendants attack class certification on the grounds that the requested injunction is too vague. However, the Tenth Circuit has specifically held that plaintiffs are not required to “come forward with a finished injunction at the class certification stage.” Shook v. Bd. of County Comm’rs of El Paso, 543 F.3d 597, 603 (10th Cir. 2008). The court concludes that Plaintiffs in this case have been sufficiently specific about the policy they seek to meet the requirements of Shook and Rule 65. Accordingly, the court finds that Plaintiffs
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have met the requirements of Rule 23(b)(2) for certification of the Injunctive Class. B. Damages Class Rule 23(b)(3) requires a showing that (1) issues common to the class predominate over
those affecting individual class members; and (2) prosecuting the litigation as a class action is superior to other available methods of adjudicating the controversy.
In this case, while all of the members of the Damages Class were exposed to CS gas, there is a variance between the length of exposure and harm. Although those variance are individual differences, the vast majority of facts and law at issue in the case are common to all members of the class.
In addition, “[t]he superiority requirement is grounded in the idea that the litigation is to be carried out as efficiently and as fairly as possible for all parties.” Hillis, 237 at 504. This requirement “directs the court’s attention to ‘the relative advantages of a class action suit over whatever other forms of litigation might be realistically available to plaintiffs.” Id. (citation omitted). “The matters pertinent to the findings [of predominance and superiority] include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against the members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.” Amchem, 521 U.S. at 615.
A class action is the fairest and most efficient manner of litigating the claims at issue in the present case. A class action eliminates the possibility of inconsistent verdicts or results for individual plaintiffs. It also eliminates the logistical problems that would arise if all of the class members were to file individual suits or were individually joined to the present case.
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Defendants improperly conflate the issues of liability and damages. The predominance requirement focuses on the issue of liability. The questions of liability in this case are common to the entire class. Damages may be individualized but that does not raise predominance concerns. In an effort to show differences, Defendants also improperly refer to the inmate who refused to go to his cell and caused the gassing incident to occur. However, as stated above that inmate is explicitly not a part of the class. The class is defined as inmates in their cells at the time. Despite individual variances, the court concludes that common liability issues predominate and a class action is the superior means for prosecuting Plaintiffs claims. Accordingly, the court concludes that Plaintiffs have met the requirements of Rule 23(b)(3) for certification of the Damages Class.
CONCLUSION Based on the above reasoning, Plaintiffs’ Motion for Class Certification is GRANTED. The court certifies two subclasses–a Damages Class and an Injunctive Class, as defined above. The court also certifies the named Plaintiffs as class representatives, and certifies Plaintiffs’ counsel as Class Counsel. DATED this 17th day of June, 2014.
BY THE COURT:
DALE A. KIMBALL United States District Judge
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 Case 2:13-cv-00393-DAK Document 69 Filed 01/29/15 Page 1 of 18

John Mejia, Utah Bar No. 13965 Leah Farrell, Utah Bar No. 13696 American Civil Liberties Union of Utah Foundation, Inc. 335 North 300 West Salt Lake City, Utah, 84103
Karra Porter, Utah Bar No. 5223 Eric K. Jenkins, Utah Bar No. 10783 CHRISTENSEN & JENSEN, P.C. 257 East 200 South, Suite 1100 Salt Lake City, Utah 84111-2048 Telephone: (801) 323-5000
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT CENTRAL DIVISION, STATE OF UTAH

TIMOTHY REDMOND, NICK WATSON, GEORGE MONFORT, DANIEL LASSCHE, KRAIG CANFIELD, and all others similarly situated,

PLAINTIFFS’ AMENDED COMPLAINT FOR DAMAGES, AND FOR CLASSWIDE DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

(CLASS ACTION)

vs.

SCOTT CROWTHER as successor to ALFRED BIGELOW in his official capacity, ROBERT POWELL, in his individual capacity, and JASON NICHOLES, in his individual capacity,

Civil No. 2:13-cv-00393-PMW Magistrate Judge: Paul M. Warner

Defendants.

INTRODUCTION The prisoners in the Olympus wing of the Utah State Prison in Draper, Utah all suffer from physical and mental health conditions. On August 3, 2011, prisoners housed in this wing were locked in their fully enclosed cells (no windows/no bars/no openings) while their cells were

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pumped with air contaminated with CS gas (commonly known as tear gas). Immediately upon being exposed to the gas, prisoners felt burning in their eyes, lungs, and skin. The prisoners began desperately trying to get the attention of prison officials by, among other things, kicking, screaming, and repeatedly pressing their emergency response buttons. However, no response was made to prisoners’ emergency calls. Many of the prisoners thought they were going to die. Adding to the prisoners’ distress, prison officials came into the Olympus wing wearing gas masks.
After twenty to thirty minutes of being “gassed,” some of the prisoners were released from their cells and taken to an outside courtyard. Other prisoners were left in their cells to sit amidst the lingering gas. Some of those prisoners allowed access to clean air were called “sissies” for complaining. Defendants assured prison administrators that those affected would have access to medical treatment, but prisoners were told that they should only seek medical attention if it was an emergency and that prisoners would be responsible for paying for any medical care received. Additionally, prison officials threatened inmates with future “gassings” and told them that “this is what you get for misbehaving.”
Prison policy does not prohibit the use of tear gas canisters in the circumstances described herein, that is, to respond to a refusal to comply by a single prisoner. It is consistent with policy to use chemical agents on a smaller scale against individual prisoners. Moreover, Plaintiffs are unaware of any policy or mechanism that requires prison officials in the Olympus wing to adequately respond to prisoners in distress when chemical agents are used in the prison, whether it is the targeted individual or prisoners who are not specifically targeted but exposed to the agents nonetheless.
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JURISDICTION AND VENUE 1. This action arises under the Eighth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, Section 9 of the Utah Constitution. 2. Jurisdiction exists pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 1367(a). 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), in that the Plaintiffs’ claims all arose within the District.
PLAINTIFFS 4. Named Plaintiff Timothy Redmond is an adult citizen and resident of the state of Utah. Plaintiff Redmond had been diagnosed with depression, panic anxiety disorder, and posttraumatic stress disorder stemming from a childhood incident. On August 3, 2011, Mr. Redmond was incarcerated in the Utah State Prison in the Olympus wing. However, Mr. Redmond was subsequently released. 5. Named Plaintiff Nick Watson is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. On or before January 31, 2015, Mr. Watson will no longer be incarcerated in the prison. Mr. Watson has a history of depression and attempted suicide. He also suffers from anxiety that stems from an electrical fire incident that occurred at his residence in 2002. 6. Named Plaintiff George Monfort is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Monfort has been diagnosed with paranoid schizophrenia and takes medication to treat his anxiety, depression, schizophrenia, and to help him sleep.
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7. Named Plaintiff Daniel Lassche is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Lassche has kidney problems and high blood pressure and receives dialysis treatment.
8. Named Plaintiff Kraig Canfield is a prisoner at the Utah State Prison who was incarcerated in the Olympus wing on August 3, 2011. Mr. Canfield has been diagnosed with, among other things, obsessive-compulsive disorder, anxiety disorder, and psychotic disorder.
THE PLAINTIFF CLASS 9. The named Plaintiffs bring this action on their own behalf and as representatives of the following two classes:
1) All prisoners currently incarcerated in the Olympus wing of the Utah State Prison (the “Injunctive Class”); and
2) All prisoners and former prisoners who were in their cells in the Olympus wing of the Utah State Prison on August 3, 2011, and were thereby exposed to noxious o-chlorobenzylidene malononitrile (“CS gas”) (the “Damages Class”).
10. Class certification of the Injunctive Class is appropriate under F.R.Civ.P. 23(a) and (b)(2) because the Defendants have acted or refused to act on grounds that apply generally to the Injunctive Class so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole and:
a. The members of the Injunctive Class are so numerous that joinder of all persons is impracticable. the Olympus wing houses at least 130 inmates.
b. There are questions of fact or law common to the class: (i) Common questions of fact include the current policies, practices and customs regarding the deployment of chemical agents in the
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Olympus wing of the Utah State Prison, including whether it is policy, practice or custom to: - refuse to answer emergency call buttons when tear gas is
deployed; - wait 20-30 minutes to allow affected prisoners to leave their
cells; - refrain from providing medical treatment after prisoners are
exposed to tear gas; and - discourage prisoners affected by chemical agents from filing
grievances. (ii) Common questions of law include: whether Defendants’ current
policies, practices and customs regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison comply with the federal and Utah constitutions, particularly given the mental and physical health conditions of the prisoners housed there; whether those policies, practices and customs create a risk of future harm to the Injunctive Class; and related issues. c. The representative Plaintiffs’ claim is typical of the claims of the class; in fact, the claims of all of the Injunctive Class members are identical. d. The representative Plaintiffs will fairly and adequately represent the interests of the Injunctive Class. The named Plaintiffs have manifested willingness and persistence to assert claims on their own behalf and that of their fellow prisoners, and have retained counsel experienced in class action and other complex litigation. 11. Class certification of the Damages Class is appropriate under F.R.Civ.P. 23(a) and (b)(3) because questions of law or fact common to the Damages Class predominate over any
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questions affecting only individual members, class action is superior to other available methods for fairly and efficiently adjudicating the controversy; and:
a. The members of the Damages Class are so numerous that joinder of all persons is impracticable. Upon information and belief, the total number of class members is at least 130 men.
b. There are questions of fact or law common to the Damages Class that predominate over the only factual issue that may vary among members, i.e., damages: (i) Common predominating questions of fact include: How and why the Olympus wing prisoners were exposed to CS gas; the circumstances under which CS gas was deployed against a prisoner in the wing; why there was no response to emergency calls from prisoners during the incident or other action to explain what was happening; whether Defendant Powell threatened or otherwise prevented prisoners from obtaining prompt medical attention following exposure to the CS gas; and other related issues. (ii) Common predominating questions of law include: What standard of review applies to the defendants’ alleged conduct; whether the defendants’ conduct rose to the level of a constitutional deprivation; and related issues.
c. The representative Plaintiffs’ claim is typical of the claims of the Damages Class; in fact, the liability claim is identical.
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d. The representative Plaintiffs will fairly and adequately represent the interests of the Damages Class. The named Plaintiffs have manifested willingness and persistence to assert claims on their own behalf and that of their fellow prisoners, and have retained counsel experienced in class action and other complex litigation. DEFENDANTS
12. Defendant Scott Crowther is successor to Alfred Bigelow as warden of the Utah State Prison in Draper, Utah. For purposes of this litigation and the relief sought therein, Defendant Crowther is responsible for creation and oversight of policies, practices and customs regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison. Mr. Crowther is sued in his official capacity for declaratory and injunctive relief only.
13. Defendant Robert Powell is, and was at all relevant times, a resident of the State of Utah. At the times alleged in this Complaint, Defendant Powell was employed as a Captain at the Utah State Prison. He was the head supervisor of all of the correctional staff on duty during the incident that gives rise to this action. Defendant Powell is sued in his personal capacity.
14. Defendant Jason Nicholes is, and was at all relevant times, a resident of the State of Utah. Defendant Nicholes is, and was at all relevant times, employed with the Utah Department of Corrections as a captain with the Special Operations Unit. Defendant Nicholes is sued in his personal capacity.
EXHAUSTION OF REMEDIES / INAPPLICABILITY OF PRISONER LITIGATION REFORM ACT
15. Plaintiff Redmond is not presently incarcerated in the Utah State Prison. On or before January 30, 2015, Plaintiff Watson will no longer is be incarcerated in the prison.
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Consequently, this litigation is not subject to the provisions of the Prisoner Litigation Reform Act, including requirements of exhaustion of remedies. See Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005).
16. In any event, any requirement of exhaustion of remedies is satisfied by a named Plaintiff’s exhaustion of such remedies. Named Plaintiff Nicholas Watson exhausted his remedies as follows:
a. Mr. Watson submitted a timely Inmate Grievance Form on August 8, 2011. The grievance was denied by a member of Prison staff on August 17, 2011, which denial was affirmed by Defendant Powell on August 25, 2011.
b. Mr. Watson submitted a Level 2 appeal on August 30, 2011. The Level 2 appeal was denied by Defendant Bigelow on September 22, 2011.
c. Mr. Watson filed a Level 3 appeal on October 3, 2011. The Level 3 appeal was denied, and Mr. Watson’s grievance was dismissed by the Utah Department of Corrections on October 26, 2011. No further administrative review was available. STATEMENT OF FACTS
The following allegations are pled in their totality and in the alternative. 17. On August 3, 2011, the Plaintiffs and all other members of the Class were incarcerated in the Olympus wing of the Utah State Prison. 18. The Olympus wing houses prisoners with physical and/or mental health conditions, including age-related infirmity.
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19. Cells in the Olympus wing are fully enclosed; they do not have bars, windows, or other openings. Air is piped into cells through a ventilation system.
20. At approximately 4:09 p.m., the Plaintiffs and all other members of the Class were secured in their cells.
21. Suddenly and without warning, each of the cells became infused with CS gas (commonly referred to as “tear gas”).
22. CS gas is composed of o-chlorobenzylidene malononitrile. The compound is a white solid powder mixed with a dispersal agent, like methylene chloride, which carries the particles through the air.
23. Defendants were each aware of the risks and effects of CS gas. In fact, guards at the Prison do not deploy CS gas unless they and other officers potentially subject to exposure are themselves wearing masks.
24. Defendants knew that, if CS gas entered the ventilation system in the Olympus wing while prisoners were secured in their cells, the prisoners would experience pain, difficulty breathing, burning sensations in their lungs, eye, throat and skin irritation, panic, and other harm. Members of the Damages Class did, in fact, experience such consequences.
25. Prisoners began screaming, yelling, kicking their doors, and otherwise desperately attempting to get the attention of Prison personnel. Many prisoners believed that the wing was on fire, and/or that they were going to die.
26. Many prisoners pressed their emergency communication buttons, but received no response. Consequently, inmates had no idea what was happening to them.
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27. After 20-30 minutes of the CS gas exposure, the prisoners in B and C blocks of Olympus were taken outside to a courtyard. Prisoners in A and D blocks were not removed from their cells.
28. In the courtyard, Defendant Powell discouraged the reporting of medical symptoms by prisoners, asking some of the assembled prisoners, “Any of you sissies need medical help?” Captain Powell indicated to the prisoners that only those who felt it was an emergency should see a med tech.
29. Prison protocol following exposure to CS gas is for the exposed inmate(s) to shower. Defendant Powell was aware that, unless prisoners are permitted to shower and otherwise remove CS gas from their skin, surrounding air, and belongings, the CS gas would continue to burn and irritate inmate’s skin and lungs.
30. One of the assembled prisoners told Captain Powell that he was experiencing lung problems, and another reported having a panic attack.
31. Captain Powell and another prison official told some of the assembled prisoners that counselors would be provided to prisoners to address the incident, but no counselors were provided.
32. Even though the prisoners’ need for medical attention was caused entirely by the conduct of Defendants and the prisoners were wholly without fault with respect thereto, Captain Powell refused to waive the prohibitive cost of seeking medical care.
33. Those Prisoners in Olympus wing who are capable of employment earn only 40 cents per hour. At the time of the incident, the Prison was charging $1 to fill out a request to see a prison doctor, and another $4 to see the doctor.
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34. The Prison phones in the Olympus wing were shut down for approximately two days after the gassing. Upon information and belief, this action was taken to conceal the gassing incident from the public, or as an implicit threat against prisoners if they discussed the incident with others.
35. The Named Plaintiffs learned after the incident that several members of the Special Operations Unit personnel had deployed a CS gas “grenade” against a single, unarmed prisoner who was refusing to return to his cell from the courtyard.
36. On August 3, 2011, an inmate named James Hill was in a recreational yard during a scheduled recreational period. At approximately 4:00 p.m., Mr. Hill refused to “rack in” (return to his cell from the recreation yard).
37. Approximately five minutes after Mr. Hill refused to rack in, prison officials under Defendant Powell’s command contacted the prison’s Special Operations Unit (sometimes colloquially called “SWAT”).
38. Initially, a report was made that Mr. Hill was possibly attempting to sharpen a possible weapon. Defendants knew that the only potential object in Mr. Hill’s possession was a pair of plastic eyeglasses authorized by prison personnel.
39. While under police observation, Mr. Hill threw the eyeglasses up onto a nearby roof, out of his range. At that point, officers knew that Mr. Hill had no weapon.
40. While refusing to rack in, Mr. Hill showed his hands to be empty on multiple occasions. Neither Defendant Powell nor Defendant Nicholes saw a weapon or potential weapon after Mr. Hill threw his eyeglasses out of reach. Defendants knew that Mr. Hill was, at that point, unarmed.
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41. From the moment that Mr. Hill refused to rack in until the CS gas was deployed, Mr. Hill was under constant observation, and was physically separated from other inmates and prison personnel by a wall.
42. Contrary to practice and policy, SOU made no attempt to converse or negotiate with Mr. Hill before using against him. Defendant Nicholes made a single verbal command to Mr. Hill before deploying CS gas, a Taser, and a beanbag sponge against Mr. Hill.
43. Defendant Nicholes formulated the plan of force used against Mr. Hill. However, Defendant Powell was present in the multipurpose room when Defendant Nicholes’s plan was being described.
44. Defendant Powell had the authority, and duty, to intervene when observing a constitutional violation by Defendant Nicholes and others.
45. As part of his plan of force, Defendant Nicholes directed an officer to go up on the roof above Mr. Hill. Defendant Nicholes then directed that officer to fire a CS grenade down into the rec yard.
46. Defendant Powell was present during the formation of this plan, and when the plan was implemented. Defendant Powell was responsible for the safety of prisoners housed in the Olympus facility.
47. The rec yard was enclosed on all four sides by walls. On two walls were large intake vents. It was plain from their appearance that the vents were air vents. Defendant Powell knew that these were the air intake vents for the entire Olympus facility.
48. Defendants Nicholes and Powell knew that, if CS gas were released in the walled rec yard, some or all of the gas would enter the air intake vents. Defendant Powell knew that
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these vents provided ventilation to the entire facility (except for E Wing, which was on a different system).
49. Defendants Nicholes and Powell knew that CS cannot safely be deployed near an intake vent, particularly in a walled area.
50. Mr. Hill did not pose a threat to anyone, or a material threat to administration of the prison, at the time that force was used against him. Instead, Defendants Powell and Nicholes authorized the use of force based solely upon, and in retaliation for, Mr. Hill’s non-compliance with a verbal command.
51. At least 18 officers were deployed to “extract” the single unarmed prisoner. 52. Because the CS gas went into the air vents within a matter of seconds, it did not disable Mr. Hill. The two Taser deployments did not strike Mr. Hill. Defendant Nicholes then ordered the deployment of a single bean bag sponge round. The sponge round struck Mr. Hill’s thigh, and he immediately complied. 53. The optimal range for firing a sponge round is up to 30 feet. A sponge round is materially lower level of force than CS gas. A sponge round also poses no risk of harm to other inmates within the facility. Defendant Nicholes claimed that he did not consider using a sponge round earlier because he did not want any of his 17+ officers within 30 feet of Mr. Hill. However, even if that were true, the bean bag could have been deployed by the officer already deployed on the roof, or another officer on the roof. 54. Defendant Powell misleadingly reported to Prison administration that “a medical representative was called in to offer medical treatment to any affected inmates,” and that “[a]ll inmates affected by the gas were seen by medical staff.” In reality, a registered nurse told
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prisoners that the effects of the gas would simply go away in time and asked prisoners if they wanted to go to the infirmary. Only a few prisoners went to the infirmary.
55. Defendant Powell also falsely reported to Prison administration that only “small” or “trace” amounts of CS gas was drawn into the air system, that the Prisoners’ exposure to the CS gas was “minimal,” and that the prisoners had been “immediately” evacuated once Prison officials learned of the exposure. These statements were untrue and, upon information and belief, were made as part of an effort to cover up or mischaracterize the incident.
56. Defendants have not taken steps to reassure prisoners that similar incidents will not occur again. To the contrary, guards have utilized the incident to threaten prisoners. For example, Officer Sergeant Forsath subsequently threatened to “gas again.” Other guards have characterized the incident as a “training mission.” (In fact, Defendant Powell did delegate some or all of his responsibilities during the event to an officer in training, Officer McClain.)
57. CS gas has been deployed on prisoners in their cells at Olympus facility, including in the presence of a bystander cellmate.
58. The Defendants’ actions toward both James Hill and the Class Members were consistent with, and permitted by, the policies, procedures, and customs of the Utah State Prison. Further, no changes have been made to prison policy in response to the events of August 3, 2011, or for the purpose of preventing future occurrences. Accordingly, it is substantially likely that this incident will not be an isolated event in the Olympus wing.
59. There are no written restrictions on the use of CS gas on prisoners in the Olympus facility. Nor are there any defined parameters for such use.
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FIRST CLAIM FOR RELIEF (Eighth Amendment, all Defendants) 60. All other paragraphs of this Complaint are re-alleged and incorporated as though fully set forth herein. 61. Based on the facts set forth above, the named Plaintiffs and the classes they represent assert that the Defendants violated their rights under the Eighth Amendment by creating an unconstitutional condition of confinement. 62. The conditions surrounding Plaintiffs’ confinement posed a substantial risk of serious harm to Plaintiffs’ health or safety. 63. Defendants acted with deliberate indifference to the risk of harm to Plaintiffs because they were aware that exposure to CS gas is harmful yet did not take steps to alleviate the risk to Plaintiffs by, for example, restricting the use of CS gas adjacent to the air intake vents, responding to Plaintiffs’ emergency calls, timely removing Plaintiffs from their cells; providing a mechanism by which Plaintiffs could remove the CS agent from their skin, clothing, and belongings; providing Plaintiffs access to medical treatment and counseling. 64. Plaintiffs suffered physical and emotional injury from the deployment of CS gas in the Olympus wing. The physical injuries stem from the chemical compounds in the CS gas, and include intense and painful burning in the eyes, nose, throat and skin, and lung congestion, which made it difficult to breathe. Prisoners also suffered emotional damages, including increased and continuing anxiety, worsening of existing conditions such as PTSD, and so on. 65. The Defendants’ deployment of CS gas posed a substantial risk of serious harm to Plaintiffs’ health or safety.
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Case 2:13-cv-00393-DAK Document 69 Filed 01/29/15 Page 16 of 18

66. Defendant Nicholes planned and executed the unlawful use of force. Defendant

Powell also participated in the planning and execution of the use of force. Defendant Powell was

aware of the impending and actual constitutional violations but did not intervene.

67. Defendants Nicholes and Powell violated inmate Hill’s rights under the Eighth

Amendment, and are liable to bystanders harmed by such violation.

70. Defendants’

deployment of CS gas was not a good faith effort to restore discipline and order, as demonstrated

by, among other things, that: a. Defendants acted with force substantially greater than necessary to

quell the behavior of one unarmed prisoner; b. Defendants failed to institute a policy to minimize

the effects of CS gas to inmate bystanders; c. Defendants used force indiscriminately when they

had knowledge that CS gas had infiltrated the ventilation system and affected inmates that were

locked in their cells and posed no threat and yet left these prisoners in their cells for 20 to 30

minutes.

68. An injunction is necessary to prevent Defendants from taking these actions again

because, on information and belief, they were taken pursuant to the policies, practices, and/or

customs of the Utah State Prison at Draper, Utah.

SECOND CLAIM FOR RELIEF (Eighth Amendment; Defendant Powell)

69. All other paragraphs of this Complaint are re-alleged and incorporated as though

fully set forth herein.

70. Based on the facts set forth above, the named Plaintiffs and the Damages Class they

represent assert that Defendant Powell violated their rights under the Eighth Amendment by

failing to provide medical attention needed as a result of the Defendants’ own conduct, and

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Case 2:13-cv-00393-DAK Document 69 Filed 01/29/15 Page 17 of 18
threatening or otherwise improperly taking steps to prevent prisoners from seeking medical attention.
THIRD CLAIM FOR RELIEF (Article I, § 9 of the Utah Constitution; all Defendants) 71. All other paragraphs of this Complaint are re-alleged and incorporated as though fully set forth herein. 72. The acts complained of by the Plaintiffs herein presented an obvious and known substantial risk of serious injury for which there was no reasonable justification at the time. 73. The acts complained of constituted a flagrant violation of the plaintiffs’ rights under Article I, § 9 of the Utah Constitution to be free from cruel and unusual punishment and not to be treated with unnecessary rigor. 74. Existing remedies do not redress the plaintiff’s injuries, because there are no comparable remedies under state common or statutory law, and because the protections of Article I, § 9 are broader than those of the United States Constitution. 75. Equitable relief alone is wholly inadequate to remedy the alleged violations, which include personal and medical injury.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully prays for the following relief: 1. Certify the proposed Injunctive and Damages classes; 2. Declare that the events described above violated the United States Constitution and the Utah Constitution;
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Case 2:13-cv-00393-DAK Document 69 Filed 01/29/15 Page 18 of 18
3. Enter an injunction directing that Defendants adopt and comply with written policies regarding the deployment of chemical agents in the Olympus wing of the Utah State Prison at Draper Utah;
4. Enter an order enjoining Defendants from refusing to respond to emergency calls; 5. Award damages to each member of the Damages Class; 6. Grant an award of attorneys’ fees and expenses; 7. Grant such other equitable and other relief as the Court deems just and proper. DATED this 29th day of January, 2015.
ACLU OF UTAH /s/ John Mejia John Mejia Leah Farrell CHRISTENSEN & JENSEN, P.C. /s/ Karra J. Porter Karra J. Porter Eric K. Jenkins Attorneys for Plaintiffs
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

TIMOTHY REDMOND, et al., Plaintiffs,
vs. SCOTT CROWTHER, et al.,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:13CV393DAK
Judge Dale A. Kimball

This matter is before the court on Defendants’ Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The court held a hearing on the motion on May 18, 2014. At the hearing, Plaintiffs were represented by Karra Porter and John Mejia, and Defendants were represented by Joni J. Jones and Kyle J. Kaiser. The court has carefully considered the materials submitted by the parties, as well as the facts and law relevant to the motion. Now being fully advised, the court renders the following Memorandum Decision and Order.
BACKGROUND This case arises from an incident on August 3, 2011, at the Olympus Facility at the Utah State Prison, in which prison guards used ochlorobenzylidenemalononitrile (“CS gas”) against an inmate who refused to leave one of the recreation yards and return to his cell. The guards released the CS gas grenade near two air vents which distributed the gas to several cell blocks within the Olympus Facility. Plaintiffs are inmates who were in their cells at the time the CS gas

was released. The Olympus Facility is a self-contained housing unit on the grounds of the Utah State Prison. It houses medically fragile inmates, such as inmates requiring dialysis, and inmates with serious mental health issues.
Plaintiffs have asserted an Eighth Amendment excessive force claim against each Defendant, an Eighth Amendment medical neglect claim against Defendant Powell, and a claim under Article I, Section 9 of the Utah Constitution for a permanent injunction against each Defendant. Defendant Jason Nicholes was a captain of the Special Operations Unit, and in charge of the incident with the hostile inmate. Defendant Robert Powell was a captain assigned to the Olympus Facility and the head supervisor of the correctional staff on duty during the incident. Defendant Scott Crowther is the warden of the Utah State Prison in Draper, Utah, and is sued in his official capacity for declaratory and injunctive relief only.
On the afternoon of August 3, 2011, an inmate at the Olympus Facility, James Hill, refused to return to his cell after violating prison policy by passing a container of cornflakes underneath another inmate’s cell door. He became agitated, aggressive, and confined himself to the “D Section” recreation yard. The yard is open to the sky, with four walls surrounding it.
In the recreation yard, Hill began pacing, swearing, and yelling threats at security officers. He pulled his glasses off and appeared to be sharpening them against the brick wall. Hill threatened to “stick or cut the first pig” who entered the yard and also threatened to kill prison officers.
For over an hour, multiple prison officers and staff attempted to talk to Hill in an effort to calm him down and get him to return to his cell. Two Crisis Intervention Team staff members and a therapist were sent to talk to him. The officers also decided to leave him alone to give him a chance to cool down.
2

Pursuant to prison protocol when an inmate refuses to comply with orders and is not under control, the other inmates in the facility were required to return to their cells, which were then locked. Also, because Hill refused to return to his cell or submit to any authority, the Special Operations Unit was requested. The Special Operations Unit arrived at approximately 4:30 p.m.
Defendant Nicholes and the Special Operations Unit arrived at the Olympus Facility and analyzed the situation involving inmate Hill. The team met in a room to consider options. Nicholes and his team considered many different types of force and developed a plan to remove Hill from the yard. Nicholes decided to use a CS gas canister to force Hill closer to them. Once he was closer, they intended to use a taser on Hill to gain control of him.
When the team went to the recreation yard, Nicholes first tried using a show of force, which can sometimes be enough, but Hill did not respond. Nicholes also gave Hill one last command to be cuffed and return to his cell. However, Hill flipped him off. Hill then used the CS gas grenade as the team had planned.
At 5:24, over an hour and fifteen minutes after inmate Hill had been in the recreation yard and threatening staff, the Special Operations Unit deployed the CS gas grenade in the yard. When the CS gas grenade was deployed, some of the gas was sucked into the two air handlers located at the top of the “D Section” recreation yard. The CS gas was distributed throughout the facility to housing units and administrative offices through the facility’s HVAC system. Plaintiffs’ cells were fully enclosed with no open bars. Some of the Plaintiffs believed that they were being gassed. Many had irritated, watery eyes, and difficulty breathing. Some kicked and screamed, while others placed towels or blankets over their heads. Many also pressed their emergency call buttons that were located in their cells.
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Defendant Powell realized there was a problem with CS gas entering the intake air units. Powell said, “Okay. This is going to get ugly folks. The one thing we didn’t plan on is where is the intake air for this HVAC system. Right there, baby.” Powell contacted the control room and confirmed that gas was entering some of the cells. He ran to the roof of the facility to turn off the air vents to keep the gas from going through the ventilation system. He then informed officers to go through the facility to check on the inmates.
Powell instructed officers and staff to evacuate Sections B and C of the Olympus Facility. The evacuated inmates were taken to a different recreation yard. At approximately 5:30, six minutes after the CS gas grenade was used, the staff began to air out the building and evacuate the inmates from Sections B and C. The control room and officers worked to get the cells unlocked and the inmates escorted to the other recreation yard. All of the prisoners in Sections B and C were fully evacuated by 5:46 p.m., sixteen minutes later.
A medical staff member came and walked down the line of inmates making contact with inmates and offering medical assistance. A few inmates were assisted in line and a few inmates went to the infirmary. Although some inmates were provided treatment, Plaintiffs allege that Powell discourage such treatment and referred to anyone needing medical assistance as a “sissy.” The parties agree that Powell instructed the inmates not to seek treatment if their eyes were only stinging, that the inmates should only seek treatment if they thought their reaction was an emergency.
Plaintiffs take some issue as to whether the inmates were allowed to shower to help with the effects of the CS gas exposure. However, the evidence demonstrates that Plaintiffs Lassche, Watson, and Canfield were allowed to shower that evening. Plaintiff Monfort did not shower that evening, but he did not want to. Plaintiff Watson testified that “99 percent” of the affected
4

inmates showered. There is no evidence supporting Plaintiffs’ assertion that the inmates were not allowed to shower.
Sections A and D were not as badly affected as Sections B and C and were not evacuated. Due to security classifications, inmates in Sections A and D are not allowed to be around other inmates. Thus, Sections A and D could not be evacuated at the same time as Sections B and C. They would have had to have been restrained and placed in a segregated area for the safety of staff and offenders. Officers went from cell to cell, opening cuff ports to help with ventilation and setting up industrial fans. One officer testified that while the officers were talking to the inmates in Section D, the inmates were not comfortable but they did not seem like they were in distress. Another officer noticed an inmate who looked a little fatigued and he took him to the nurse. After Sections B and C had been evacuated, Powell entered Sections A and D. He testified that the CS gas had dissipated and that inmates were no longer complaining of exposure. Medical staff also went around and checked on the welfare of the inmates.
After the incident, Defendant Nicholes and his team reviewed the video and took the location of the air vents into account for future planning and implemented various practices into their order of operations. They also reviewed the whole incident, the use of force, the deployment of weapons, and the hands on force. Defendant Powell reviewed the incident and concluded that the actions of prison staff were consistent with Utah Department of Corrections policy.
EVIDENTIARY OBJECTIONS Plaintiffs make evidentiary objections to Defendants’ Olympus Chronological Shift Log and Incident Report as being irrelevant or inadmissable hearsay. The materials are clearly relevant. Plaintiffs may object to the shift log and incident report if the facts within the records
5

“cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Defendants need only explain an admissible form through which the records would be admissible. Id. Adv. Comm. Note.
The shift logs and incident report would be admissible at trial under the business records exception to hearsay. Fed. R. Evid. 803(6). The shift log and incident report meet all of the requirements for a business records exception. First, the shift log is a detailed log of events taken by Officer Eskelson as the events happened. The incident report is a record of the events signed by Officer St. Germain, an officer involved in the events, one day after the events in question. Thus, both were made at or near the time by someone with knowledge. Further, while under oath, both Officer Eskelson and Officer St. Germain acknowledged the records and stated that they were the respective authors. During their depositions, Plaintiffs had the opportunity to question both officers regarding the records’ accuracy and the practice of keeping the records. Keeping and making records, such as the shift log and the incident report, is the regular course of business for the prison. Therefore, the records are admissible.
Plaintiffs also make evidentiary objections for lack of foundation to Plaintiffs’ own statements under oath that the inmates received medical care following the exposure to the CS gas. Defendants have no burden to produce evidence substantiating the accuracy of Plaintiffs’ sworn statements. Plaintiffs have failed to come forward with evidence contradicting their own sworn statements that inmates were offered medical services, those inmates requesting medical services were transferred to the infirmary, almost all of the inmates, but certainly the Plaintiffs who wanted to, were allowed to shower, and that by the time all the inmates were evacuated, the symptoms experienced by Plaintiffs and many of the inmates had subsided.
Plaitniffs also object to Nurse Gappmeyer’s statement, “To [everyone’s] surprise it went 6

to the intake vent,” because Plaintiffs maintain that Nurse Gappmeyer lacked foundation to testify about others’ states of mind. But Nurse Gappmeyer’s statement was based on observations that could be made by a lay witness. Such testimony is allowed by Rule 701 of the Federal Rules of Evidence. “The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons . . . . [T]estimony that a person was ‘excited’ or ‘angry’ is more evocative and understandable than a long physcial description of the person’s outward manifestations.” United States v. Denny, 48 Fed. Appx. 732, 737-38 (10th Cir. 2002). Nurse Gappmeyer was present and perceived the surprise on the part of those near him when the gas was taken up into the air intake vents. Therefore, he is competent to testify about his own perceptions.
Furthermore, Plaintiffs object to Defendants’ assertion that the prison staff who were not wearing gas masks were experiencing the same effects of CG gas that the inmates were experiencing. Plaintiffs contend that there is no foundation to say that the intensity of the officers’ experience matched the intensity of the Plaintiffs’ experiences. Defendants, however, assert that they do not claim that the officers experienced the same intensity level as the inmates. Defendants simply assert that the officers were experiencing the same objective effects from the CS gas–such as skin irritation, watery eyes, and coughing. The degree of intensity to which separate individuals feel the effects is subjective. However, there is sufficient foundation for Officers Eskelson, McClain, and Anderson to testify that they were not wearing gas masks, they experienced the objective effects of CS gas, and were able to complete their tasks.
Finally, Plaintiffs object to Defendants’ assertion that Captain Powell, personally or by directing his staff, entered Section A and checked with medical or clinical staff to check on the inmates’ well-being. Although Powell used language at one point in his deposition that he
7

“would have” required something, he also clearly testified that he entered section A and D with his staff and directed the medical personnel to check each inmate according to policy.
DISCUSSION Defendants’ Motion for Summary Judgment 1. Qualified Immunity Plaintiffs seek damages from Defendants Powell and Nicholes in their individual capacities. However, Powell and Nicholes argue that Plaintiffs’ claims against them should be dismissed because they are entitled to qualified immunity. First, Defendants argue that no clearly established law could have alerted Defendants that their actions were unconstitutional. To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995). There are no Supreme Court or Tenth Circuit cases specifically holding that accidentally exposing inmates to CS gas while trying to restrain a resistant inmate is unconstitutional. Instead of identifying clearly established law, Plaintiffs argue that the law Defendants cited is distinguishable. But distinguishing case law declining to find an Eighth Amendment violation when an inmate is exposed to chemical dispersant used to control another inmate, does not meet the burden of showing clearly established law. In addition, it is well settled that negligent conduct is not sufficient to show a violation of the Eight Amendment. To be cruel and unusual punishment, “conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Whether “that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring
8

officer control over a tumultuous cellblock,” it is “obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause.” Id.
Consistent with Whitley, courts have held that accidental exposure to pepper spray or gas does not state a claim under the Eighth Amendment. In an inadvertent pepper spray case, the Tenth Circuit denied the inmate’s Eighth Amendment deliberate indifference claim against prison officials because the inmate failed to allege that the defendants acted with a sufficiently culpable state of mind. Gargan v. Gabriel, 50 F. App’x. 920, 924 (10th Cir. 2002). The court stated that “[n]owhere does [plaintiff] state . . . the defendants deliberately exposed him to pepper spray.” Id. Plaintiff alleged that following the second pepper spray incident, a nurse “remarked to him she should have removed him from the area prior to using the spray.” Id. But the court found that “at most, this states a claim of negligence insufficient to constitute an Eighth Amendment violation.” Id.
As one court explained, there is no “transferred intent” in Section 1983 actions: “Thus, when a correctional officer, in an attempt to restore order or compliance, sprays pepper spray into one inmate’s cell and another inmate is inadvertently exposed to the spray, the second inmate does not have a claim for an Eighth Amendment violation based on excessive force.” Koon v. Dyson, 2004 WL 3217870 (D.S.C. Sept. 30, 2004).
The evidence in this case is clear that the officers did not consider the air intake vents. Defendant Powell’s statement on the video of the incident clearly demonstrates that there was no deliberate intention to expose the other inmates to the CS gas. The nurse who was present also testified that it surprised everyone that the gas went to the air intake vent. Moreover, the fact that the CS gas was distributed among the administrative areas of the facility shows that the gas
9

exposure to Plaintiffs was accidental. Plaintiffs speculate that the whole incident was a training exercise, but there is no
evidence supporting such speculation. The fact that the facility previously ordered gas masks does not demonstrate or suggest that the officers intended to expose any of the inmates except Hill. Plaintiffs’ further point to a schedule listing training at the Fred House training academy on that day. However, the Fred House facility is nowhere near the Olympus facility and the fact that training was to occur at a separate training academy in no way suggests that the officers intended to conduct training on actual inmates. There is no evidence to suggest that Plaintiffs, who were in their cells, were the intended recipients of the gas. The evidence is clear that Defendants’ failure to consider the air intake vents was a mistake and negligence at worst.
Because the law is clearly established that negligence is not sufficient to satisfy the subjective intent requirement of an Eighth Amendment claim, Defendants are entitled to qualified immunity. Accordingly, the court dismisses Plaintiffs’ Eighth Amendment claims. 2. Excessive Force
Plaintiffs’ Eighth Amendment claim for secondary exposure to CS gas must be analyzed as an excessive force claim, not a conditions of confinement claim. In Despain v. Uphoff, 264 F.3d 965 (10th Cir. 2001), the Tenth Circuit applied the excessive force standard when the officer used a dispersant on inmates. Id. at 978. The district court had analyzed the case as a conditions of confinement claim. But the Tenth Circuit reversed, explaining that “while it may be tempting to apply the Farmer test for conditions of confinement” because the pepper spray created a general condition that affected the prisoners’ environment, pepper spray “is an instrument with which prison officers wield their authority, or force, and thus its use implicates the excessive use of force.” Id.
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The Ninth Circuit has held that a secondary exposure claim can succeed if the force used on the intended target is excessive. See Clement v. Gomez, 298 F.3d 898, 903 n.3 (9th Cir. 2002). The Ninth Circuit case law appears to be at odds with the Tenth Circuit. Moreover, the fact that the Ninth Circuit applies a different standard also demonstrates that there is no clearly established law on this point. Thus, qualified immunity would still be appropriate.
Nonetheless, the force used against Hill was not excessive. The officers used several means of intervention involving no force before using the CS gas. And, in the Olympus Facility, the situation needed to be dealt with so that other inmates could be allowed out of their cells. Other inmates are required to be in lock down when another inmate is uncontrolled. Thus, other inmates were missing doctor’s appointments and otherwise adversely affected. It was not constitutionally unreasonable after more than an hour of using other means of intervention to employ the CS gas.
Plaintiffs incorrectly argue that CS gas was not necessary and unreasonable under the circumstances. But the Supreme Court has expressly rejected the unnecessary and unreasonable standards. Instead, the Supreme Court has emphasized that the question of whether force was unconstitutional turns on whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the purpose of causing harm. The facts in this case do not show that using CS gas on Hill evinced wantonness so as to be malicious and sadistic. The use of CS gas is considered less force than other physical means of force because there are no lasting effects. Whereas other physical interventions could have resulted in permanent or more serious injuries.
Defendants were not required to wait out Hill or use other types of force. The fact that there could have been better approaches might show an error in judgment, but the Whitley court
11

found that insufficient. “At most, this [expert opinion] evidence . . . establishes that prison officials arguably erred in judgment when they decided on [their] plan . . . It falls far short of showing that there was no plausible basis for the officials’ belief that this degree of force was necessary.” 475 U.S. at 323.
Hill repeatedly refused to obey direct orders from prison officials. “Inmates cannot be permitted to decide which orders they will obey, and when they will obey them.” Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984). Hill did not get to decide how long he got to stay in the recreation yard, and Defendants were not constitutionally required to wait it out. The Tenth Circuit has favorably cited to Soto for the principle that prison officials did not unjustifiably use excessive force against inmates when they used mace in response to a refusal to obey orders. Hunter v. Young, 238 Fed. Appx. 336, 339 (10th Cir. 2007). While after the fact evaluation of the use of force is valuable in helping officers to improve their practices, it does not show that the officers violated constitutional rights in the first instance.
The Tenth Circuit has clearly rejected the deliberate indifference standard in determining cases of excessive use of force. The facts surrounding a disturbance do not determine which standard should apply. The type of force determines the applicable standard. CS gas is an instrument with which prison officers wield their authority and force. Therefore, controlling Tenth Circuit law applies the Whitley standard. Despain, 264 F.3d at 978.
The Tenth Circuit has held that “where no penological purpose can be inferred from a prison employee’s conduct . . . the conduct itself constitutes sufficient evidence that force was used maliciously and sadistically for the very purpose of causing harm.” Id. This case is far from the case in which the Tenth Circuit has held that no legitimate penological purpose can be inferred. Here there was obvious penological interest in using tear gas on Hill after he escaped to
12

an outdoor recreation area, started sharpening his eyeglasses to use as a knife, stated he would stick the first pig who came in, refused to respond to officers’ commands, responded with vulgarity and threats of violence, and kept up this behavior for over an hour. The CS gas was used to restore order, maintain discipline, and prevent Hill from harming himself or officers. 3. Deliberate Indifference to Medical Needs
Plaintiffs’ Eighth Amendment medical neglect claim against Defendant Powell fails because Powell did not disregard the risk posed to Plaintiffs’ health after they had accidentally been exposed to CS gas. He immediately tried to find out where the gas was going, went to the roof to turn off the intake vents, made officers check on each inmate, evacuated the lower security inmates in a timely manner, brought in fans for the higher security units, and had medical personnel make contact with each inmate.
There is no evidence that officials ignored the risk to inmates following the exposure of other inmates to CS gas. It is obvious from the video that prison officials were surprised by the gas going into the intake vents. Once Defendants were aware of the risk, they took many steps to alleviate the harm. There is no genuine material dispute that the inmates in Sections B and C were evacuated, provided medical attention, and allowed to shower.
Although Plaintiffs point to remarks Powell made discouraging Plaintiffs from seeking medical assistance, there is no evidence that anyone who needed medical assistance failed to receive it. Plaintiffs further argue that their group counselor shut down discussion of the incident too quickly and there were delays in getting one-on-one counseling sessions. However, these allegations do not rise to evidence that an official knew of and disregarded an excessive risk to the inmates health or safety.
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4. Utah Constitutional Claim Plaintiffs Utah Constitutional Claim under the Unnecessary Rigor Clause fails because
Plaintiffs have not suffered any constitutional violation and their claims are redressable under Section 1983. The Utah Supreme Court has acknowledged that there is no federal counterpart for the Unnecessary Rigor Clause in the Utah Constitution but that the court has had “few opportunities to interpret or apply” the clause. Dexter v. Bosko, 2008 UT 29, ¶ 7, 184 P.3d 592, 595 (Utah 2008). The Utah Supreme Court has held that the clause guarantees against “unnecessary abuse” of prisoners or arrestees that is “needlessly harsh, degrading, or dehumanizing.” Id. “When a claim of unnecessary rigor arises from an injury, a constitutional violation is made out only when the act complained of presented substantial risk of serious injury for which there was no reasonable justification at the time.” Id. ¶¶ 16-17. The Unnecessary Rigor Clause “applies where a prisoner shows that a prison employee was deliberately indifferent to the prisoner’s medical needs or subjected him to clearly excessive or deficient or unjustified treatment. Id.
Because Utah has no statutory cause of action for constitutional violations similar to 42 U.S.C. Section 1983, a cause of action for monetary damages only arises against a governmental agent for violation of the Utah constitution if (1) the provision alleged to be violated is “selfexecuting,” (2) the plaintiff suffered a flagrant violation of rights, (3) existing remedies do not redress the plaintiff’s injuries, and (4) equitable relief is inadequate to protect the plaintiff’s rights or redress the plaintiff’s injuries. Spackman v. Bd. of Educ., 2000 UT 87, ¶¶ 20-26. The Utah Supreme Court urges caution in expanding new judicial remedies where existing remedies are sufficient, and gives deference to other remedies out of respect for separation of powers. Id.
Plaintiffs’ state law constitutional claims are barred because the existing remedy of
14

Section 1983 would redress their injuries. Helling v. McKinney, 509 U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”).
The Utah Supreme Court has defined the protections of the Unnecessary Rigor Clause in an identical way in medical treatment cases as the federal courts have defined protections of the Eighth Amendment. The Utah Supreme Court has stated that the Unnecessary Rigor Clause “applies where a prisoner shows that a prison employee was deliberately indifferent to the prisoner’s medical needs or subjected him to clearly excessive or deficient or unjustified treatment.” State v. M.L.C., 933 P.2d 380, 385 (Utah 1997). The Tenth Circuit has used the same evidence to weigh Eighth Amendment and Unnecessary Rigor claims. See, e.g., Childress v. Harms, 449 F. App’x. 758, 759 (10th Cir. 2011) (unpublished).
It does not matter if the Unnecessary Rigor Clause and the Eight Amendment have different “contours,” so long as a plaintiff’s injuries may be redressed under Section 1983. Cavanaugh v. Woods Cross City, 2009 WL 4981591, at *6 & n.8 (D. Utah Dec. 19, 2009) (unpublished). Therefore, the court concludes that for the same reasons Plaintiffs’ Eighth Amendment claims fail, Plaintiffs’ state law claim fails as well. 4. Injunction
Finally, Plaintiffs maintain that they have a viable claim for injunctive relief because the prison’s policies and procedures create an “objectively intolerable risk” that a similar situation may recur. But, risk is insufficient grounds for injunctive relief. To have standing to sue for injunctive relief, Plaintiffs must demonstrate that they are immediately in danger of sustaining some direct injury as a result of the challenged official conduct and that “the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles v.
15

Lyons, 461 U.S. 95, 101-02 (1983). A subjective apprehension that Defendant may not take steps to ensure inmate safety in future incidents is not enough for a permanent injunction.
Because the court has found that there was no constitutional violation and the same incident is not likely to occur in the future, Plaintiffs are not entitled to an injunction. Prison officials have changed their practices and procedures relating to the implementation of CS gas. Therefore, there is no cognizable danger that a similar incident will recur.
Moreover, Plaintiffs do not allege any particular UDOC policy is unconstitutional, but rather seek a permanent injunction ordering Defendants to adopt and comply with written policies regarding the deployment of chemical agents in the Olympus facility. There must be some cognizable danger of a future incident. Defendants have already taken reasonable steps to prevent a similar accidental exposure to CS gas in the future. When using CS gas, the teams now must take the additional step of identifying the location of the HVAC system. Therefore, the court finds no basis for entering the permanent injunction requested by Plaintiffs.
CONCLUSION Based on the above reasoning, Defendants’ Motion for Summary Judgment is GRANTED. Because this order disposes of all the claims at issue in the case, the Clerk of Court is directed to enter judgment in favor of Defendants and close the case. Each party shall bear his own fees and costs. DATED this 23rd day of June, 2016.
BY THE COURT:
___________________________________ DALE A. KIMBALL United States District Judge
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 Appellate

Case 2:13-cv-00393-DAK Document 134 Case: 16-4131 Document: 01019942580

FilDedat0e3F/0il5eU/d1n:8i0te2dP/0aS9gtT/a2eet0ne1F1st8IohCLfCo2Eui5PrDrcatugoietf:A1ppeals

February 9, 2018

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY REDMOND; NICK WATSON; GEORGE MONFORT; DANIEL LASSCHE; KRAIG CANFIELD, and all others similarly situated,
Plaintiffs - Appellants,
v.
SCOTT CROWTHER, as successor to Alfred Bigelow in his official capacity; ROBERT POWELL, in his individual capacity; and JASON NICHOLES, in his individual capacity,
Defendants - Appellees.

No. 16-4131

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. NO. 2-13-CV-00393-DAK)
Karra J. Porter (Kristen C. Kiburtz with her on the briefs), Christensen & Jensen, P.C., Salt Lake City, Utah, for Appellants.
Joshua D. Davidson, Assistant Utah Solicitor General (Sean D. Reyes, Utah Attorney General, with him on the brief), Office of the Utah Attorney General, Salt Lake City, Utah, for Appellees.
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

Case 2:13-cv-00393-DAK Document 134 Filed 03/05/18 Page 2 of 25 Appellate Case: 16-4131 Document: 01019942580 Date Filed: 02/09/2018 Page: 2
TYMKOVICH, Chief Judge.
This appeal arises from prison officials’ attempt to gain control over an agitated prisoner who refused to obey their orders, locked himself in the prison’s outdoor recreation yard, and threatened prison officials. To subdue the prisoner, prison officials decided to drop CS gas, a commonly used tear gas, into the recreation yard.
The plan went awry. The recreation yard contained a prison ventilation system intake vent, which draws air in from the recreation yard and circulates it inside the prison. So when prison officials deployed the gas, the intake vent drew the gas in and filtered it into the prison. Numerous prisoners in their cells were exposed to the gas, which caused a burning sensation in their eyes, ears, and noses, and made it difficult for them to breathe. Prison officials evacuated the prisoners housed in two sections of the prison after they secured the prisoner in the recreation yard. The officials did not, however, evacuate the prisoners in two other sections.
On behalf of a class of about one-hundred prisoners, Timothy Redmond sued three of the prison officials for constitutional violations under 42 U.S.C. § 1983, claiming the officials violated the Eighth Amendment and Utah’s Constitution by exposing the prisoners to gas, and then failing to provide adequate medical care.
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The district court granted the defendants’ summary judgment motion. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. The prison officials’ conduct, at most, only accidently exposed the prisoners to CS gas, and qualified immunity shields government officials from liability for mistakes like this one. And the rest of Redmond’s claims fail, too, either because Redmond forfeited them, failed to prove a constitutional violation occurred, or did not cite case law that clearly established the alleged rights. Finally, violating the Utah Constitution requires more-than-negligent conduct, and the prison officials’ conduct was textbook negligence.
I. Background
Redmond and the entire plaintiff class1 were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D.
James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away.
1 For ease of reading, we use “Redmond” as short-hand for the entire plaintiff class.
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The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.
But Hill did not return to his cell. He instead walked into Section D’s recreation yard and closed the door behind him, which caused it to lock. Hill then took off his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. App. at 283.
In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas.
But before doing so, Nicholes examined the recreation yard and looked for risks—he did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless flipped off Nicholes and said “F*** you, fascist.” App. at 288.
Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem—the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in
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and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe.
It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them:
if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing. App. at 1284. Two prisoners claim they would have sought medical treatment had Powell not made this statement. Next, Powell entered sections A and D.2 Powell thought the gas had dissipated in these sections and that the prisoners no longer complained about the gas. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an
2 The prisoners housed in Sections A and D cannot mingle with other prisoners. They consequently could not be evacuated alongside the prisoners in Sections B and C.
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industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.
II. Analysis
Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas.
We first discuss our standard of review before turning to Redmond’s claims under the Eighth Amendment and the Utah Constitution.
A. Standard of Review Ordinarily, we grant summary judgment only if no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). But our “review of summary judgment orders in the qualified immunity context differs from that applicable to review of other summary judgment decisions.” Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011). “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Id. “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment . . . .” Id.
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In determining whether the plaintiff meets this burden, we “ordinarily accept the plaintiff’s version of the facts—that is, the ‘facts alleged.’” A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016) (quoting Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)). But “because at summary judgment we are beyond the pleading phase of the litigation, [the] plaintiff’s version of the facts must find support in the record.” Id. (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009)). Thus, if the non-moving party’s version of the facts is “blatantly contradicted by the record, so that no reasonable jury could believe it,” then we “should not adopt that version of the facts.” Thomson, 584 F.3d at 1312.
To qualify as clearly established, a constitutional right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). A case clearly establishes a right “when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as [the] plaintiff maintains.” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197-98 (10th Cir. 2010). And although there need not be a case precisely on point for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308. This high bar ensures qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Id.
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And it is a “longstanding principle that clearly established law should not be defined at a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam). The “dispositive question is whether the violative nature of particular conduct is clearly established.” Mullenix, 136 S. Ct. at 308. We therefore must determine whether a right is clearly established “in light of the specific context of the case, not as a broad general proposition.” Id.; see also White, 137 S. Ct. at 552.
B. Eighth Amendment Claims Redmond claims Powell and Nicholes violated the Eighth Amendment by (1) exposing plaintiffs to CS gas; (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower; (3) verbally abusing and intimidating plaintiffs; and (4) failing to train prison staff regarding the use of CS gas. We examine each claim in turn, and find none persuasive.
1. Exposure to Gas Redmond contends Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas. To begin with, the parties dispute whether we should analyze this claim under the conditions-of-confinement framework or the excessive-force framework. Redmond argues that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure
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to force does not further the purpose of maintaining and restoring discipline,” the
conditions-of-confinement framework applies. Aplt. Br. at 40. We disagree.
The Supreme Court made clear in Whitley v. Albers that when prison
officials employ force “to resolve a disturbance . . . that indisputably poses
significant risks to the safety of inmates and prison staff,” we must analyze that
use of force under the excessive-force rubric. 475 U.S. 312, 320 (1986); see
DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001). That the officials intended
to only expose Hill to the gas—and Redmond and the other prisoners were thus
secondarily exposed to it—does not transform this into a conditions-of-
confinement claim. Which framework applies turns not on whom the force was
applied to but, rather, on why the officials deployed the force in the first place.
See Whitley, 475 U.S. at 320–21. And we use the excessive-force framework
whenever prison officials “mak[e] and carry[] out decisions involving the use of
force to restore order in the face of a prison disturbance.” Id. at 320. The
decision to deploy CS gas indisputably involved the use of force to restore order, so we employ the excessive-force framework.3
3 Even if Redmond were correct that the conditions-of-confinement framework governed, the officials would still be entitled to qualified immunity. Conditions-of-confinement claims have two prongs: (1) an objective prong, under which the alleged injury must be sufficiently serious, and (2) a subjective prong, under which the prison official who imposed the condition must have done so with deliberate indifference. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). An official acts with deliberate indifference when he “knows of and disregards an excessive risk to inmate health or safety; the official must both be
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Nicholes and Powell are entitled to qualified immunity on the claim they used excessive force by exposing the prisoners to gas. Redmond fails to meet his burden of showing a constitutional violation occurred. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond fails to show this right was clearly established.
a. Constitutional Violation “[A]n excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind.” Giron v. Corr. Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999). An official has a culpable state of mind if he uses force “maliciously and sadistically for the very purpose of causing harm,” rather than “in a good faith effort to maintain or restore discipline.” Whitley, 475 U.S. at 320–21. Redmond fails to meet his burden of proving Nicholes and Powell acted with the subjective intent required to use excessive force. The record reveals the
3(...continued) 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.” Id. at 837.
Redmond cannot show the officers acted with the subjective intent required for a conditions-of-confinement claim. At most, the record reveals negligent conduct. And deliberate indifference “describes a state of mind more blameworthy than negligence.” Id. at 835.
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defendants inadvertently—not intentionally or maliciously—exposed the prisoners to CS gas. And accidently deploying force is antithetical to deploying that force maliciously or sadistically. Compare DeSpain, 264 F.3d at 978–80 (10th Cir. 2001) (holding a prison official would act maliciously and sadistically by indiscriminately spraying pepper spray along a prison tier as a practical joke), with Gargan v. Gabriel, 50 F. App’x 920, 923 (10th Cir. 2002) (unpublished) (concluding prison officials did not act with deliberate indifference when they exposed a prisoner with a heart condition to pepper spray, but did not know the spray would aggravate his heart condition). Simply put, because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent.
Redmond argues that whether the “exposure was truly inadvertent” is a jury question, so we must accept Redmond’s alleged version of the facts—Nicholes and Powell intended to gas all the prisoners, not just Hill. Aplt. Br. at 47. But because we are beyond the pleading stage, we will only accept Redmond’s version of the facts if a reasonable juror could believe it. See Holmes, 830 F.3d at 1136. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous.
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But after reviewing the record, we conclude that no reasonable juror could believe the officers intended to expose any prisoner besides Hill to gas. Indeed, Nicholes testified that he did not notice the HVAC unit before deploying the gas. And after deploying the gas, Powell exclaimed the “one thing we didn’t plan on is where is the intake air for this HVAC system.” App. at 133. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas—and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.
Redmond also argues that because the officers used excessive force against Hill by subduing him with CS gas, the officers also employed excessive force against all the prisoners exposed to the gas. But even assuming an excessive-force claim is transferable in this way, Redmond fails to show the officers maliciously and sadistically deployed force against Hill.
To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, we consider (1) the need for the force, and (2) whether the officers used a disproportionate amount of force. See Whitley, 475 U.S. at 321. Redmond argues both factors support the inference that the officers deployed the gas maliciously and sadistically. For several reasons, we disagree.
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First, the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders.4 Redmond makes much of the fact that Hill had allegedly thrown his sharpened glasses over the wall, leaving him unarmed. And he argues our summary-judgment standard of review requires us to assume the officers knew Hill was unarmed. Even assuming they knew Hill had no weapon before deploying the gas—which they deny—it matters not. Armed or not, prisoners “cannot be permitted to decide which orders they will obey, and when they will obey them.” Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984).
Second, Redmond argues the officers used a disproportionate amount of force. Specifically, he claims the force employed must be disproportionate because it “was so great that over one hundred innocent Prisoners’ cells were doused in CS gas.” Aplt. Br. at 35. To be sure, it would be disproportionate to intentionally expose over one-hundred prisoners to gas just to secure one prisoner. In such a case, the ends would not justify the means. But that intention, of course, is not present in this case. Rather, the record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether
4 Redmond claims Hill did not “refuse[] to comply with commands” because “it was unclear what Hill was being commanded to do.” Aplt. Br. at 34. We disagree. Indeed, Hill reacted to the commands by giving Nicholes the finger and saying “F*** you, fascist.” App. at 288. We think this reaction is as clear an indication as any that Hill had no plans to comply with the orders.
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it was disproportionate to use CS gas to secure Hill, when the officers did not realize other prisoners would be incidentally exposed to the gas as well.
Against the backdrop of the deference we afford prison officials in these situations, we cannot conclude it was disproportionate to use CS gas. Indeed, when prison officials must act to “preserve internal order and discipline,” we afford them “wide-ranging deference.” See Whitley, 475 U.S. at 320–21. This deference “does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice.” Id. at 322. And here, the record demonstrates Nicholes considered other ways to subdue Hill, but ultimately chose to use CS gas because the other options involved too great a risk to prison staff.5 We therefore must defer to that “considered choice.” Id.
b. Clearly Established Even if we assume a constitutional violation occurred, moreover, the officers would still be entitled to qualified immunity because no case clearly establishes this right. To prove “the contours of an excessive-force claim . . . were well established,” Redmond cites Whitley for the general proposition that
5 Redmond claims from “the very beginning Nicholes had decided and received permission to use CS gas.” Aplt. Br. at 8. True, before considering other ways to secure Hill, Nicholes told his supervisor he would “probably be using CS gas.” App. 857. But the fact that Nicholes thought he would ultimately decide to deploy gas does not undercut or somehow invalidate his subsequent consideration of different options.
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“‘conduct that does not purport to be punishment at all’ violates the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain.’” Aplt. Br. at 48 (quoting Whitley, 475 U.S. at 312, 319). We certainly agree with this proposition in the abstract, but Whitley did not involve even remotely similar facts. See Whitley, 475 U.S. at 317–19 (examining whether a prison official used excessive force when he shot a prisoner in the knee while trying to quell a prison riot).
And although Whitley repeats the Eighth Amendment’s general framework, the Supreme Court recently reminded us that it is a “longstanding principle that clearly established law should not be defined at a high level of generality.” White, 137 S. Ct. at 552. General legal standards therefore rarely clearly establish rights. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). They only do so in “an obvious case.” White, 137 S. Ct. at 552. That is, a case in which the “contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft, 563 U.S. at 741; see, e.g., Hope v. Pelzer, 536 U.S. 730, 739 (2002). This is no such case.
Indeed, White is instructive. In that case, the Supreme Court reversed our circuit’s conclusion that a right was clearly established. White, 137 S. Ct. at 552. Our circuit erred, the Court explained, by relying on cases which laid out “excessive-force principles at only a general level” to clearly establish the right, rather than “identify[ing] a case where an officer acting under similar
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circumstances” violated that right. Id. Redmond asks us to repeat this same mistake.
Nor do the most factually similar cases from our circuit clearly establish that inadvertent exposure to gas violates the Eighth Amendment. To the contrary, in Gargan, a non-precedential unpublished decision, we held spraying an unarmed prisoner secured in his segregation cell with pepper spray did not violate the Eighth Amendment. 50 F. App’x at 923. And in DeSpain, we held it would violate the Eighth Amendment to “indiscriminately” spray a prison tier with pepper spray as a practical joke. 264 F.3d at 978–80. Neither case clearly establishes that it violates the Eighth Amendment to use CS gas to secure an uncooperative prisoner and, in doing so, inadvertently expose other prisoners to the gas.
In sum, Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.
2. Deliberate Indifference to Serious Medical Needs Redmond next contends Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. “[D]eliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To establish
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an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. Self v. Crum, 439 F.3d 1227, 1230–31 (10th Cir. 2006). The objective component requires showing the alleged injury is “sufficiently serious.” Id. at 1230. A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). A “lifelong handicap, permanent loss, or considerable pain” may satisfy the substantial harm requirement. Id.
The subjective component requires showing the prison official “knew [the inmate] faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it.” Martinez v. Beegs, 563 F.3d 1082, 1088–89 (10th Cir. 2009). The subjective prong is met if prison officials “intentionally deny[] or delay[] access to medical care or intentionally interfere[] with the treatment once prescribed.” See Estelle, 83 F.3d at 104–05.
Redmond claims Powell acted with deliberate indifference to the prisoners’ serious medical needs in two ways: (1) by not allowing the prisoners to leave their cells to get fresh air or to shower, and (2) by discouraging them from seeking medical attention. Even assuming these allegations are true, qualified immunity shields Powell from liability.
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a. Access to Fresh Air and Showers On the fresh-air claim, Redmond fails to show a constitutional violation occurred. Redmond makes two separate arguments as to the prisoners in Sections B and C and those in Sections A and D. First, since Powell did not evacuate the prisoners in Sections B and C until Hill was secured, Redmond argues Powell acted with deliberate indifference to the prisoners’ serious medical needs by failing to promptly evacuate them from their cells. But Redmond offers no evidence that satisfies the subjective prong of a medical neglect claim. Nor does the record support a finding that any prisoner was substantially harmed by the officer’s conduct. In fact, the record demonstrates that rather than disregard the risks prisoners in Sections B and C faced by remaining in their cells after the gas was released, Powell did his best to swiftly evacuate them. Just minutes after the gas was released, Powell ordered the opening of doors to air the facility out. And once the special operations team secured Hill—about ten minutes after the gas was deployed—Powell ordered Sections B and C evacuated. Redmond makes much of this ten-minute delay. In his view, the fact that Powell did not immediately order the facility evacuated demonstrates he acted with deliberate indifference. We disagree. Given the circumstances, we find it wholly unsurprising that Powell did not immediately order a full evacuation. After all, not only did the HVAC unit drawing in gas surprise Powell, but he also had a
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more pressing problem to deal with—securing Hill. Once Hill was secured, Powell ordered the evacuation. Thus, Powell’s delay in ordering the evacuation does not suggest he acted with deliberate indifference.
Second, Redmond argues that Powell acted with deliberate indifference to the medical needs of the prisoners in Sections A and D because he did not evacuate them at all. Instead, to flush the gas out of their cells, he opened the cells’ ports and placed an industrial fan by the door. Even assuming this violates the Eighth Amendment, Redmond cites nothing that clearly establishes this right. Nor would it be obvious to every reasonable prison official that to decontaminate prisoners exposed to gas, the Eighth Amendment requires removing the prisoners from their cells, rather than opening their cells’ ports and placing a fan by the door. See Mullenix, 136 S. Ct. at 308. This right is therefore not clearly established.
On the shower claim, even assuming that failing to allow all prisoners to shower violates the Eighth Amendment, Redmond cites no case clearly establishing this right.
b. Discouraging Prisoners from Seeking Medical Treatment
Redmond forfeited his argument that Powell violated the Eighth Amendment by discouraging prisoners from seeking medical assistance because he
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inadequately briefed it.6 Arguments are forfeited when they rest on bare assertions and cursory arguments made in the opening brief. See, e.g., Leathers v. Leathers, 856 F.3d 729,750–51 (10th Cir. 2017). Redmond’s argument is cursory, and he fails to explain what sufficiently serious injury the prisoners suffered.
Even if Redmond had not forfeited this claim, qualified immunity would shield Powell from liability because Redmond proffers no evidence that satisfies the objective component of a medical neglect claim. Redmond claims prisoners did not seek medical attention because Powell discouraged them from doing so. Assuming this is true, to satisfy the objective component of a medical neglect claim Redmond must show that this denial of medial care caused a sufficiently serious injury. He has not done so.
To be sure, the prisoners were injured by being exposed to CS gas. But that injury is the subject of the excessive-force claim we have already addressed. Redmond never alleges what injury could be caused by not seeing medical staff after being exposed to gas. In fact, Redmond’s brief repeatedly notes that the decontamination process for gas exposure involves showering and exposure to fresh air, thus suggesting medical professionals could not have even alleviated the
6 In his opening brief, Redmond has only one conclusory sentence on this claim. Aplt. Br. at 44. He also summarily states that Powell “discouraged Prisoners from seeking [medical attention]” and there was “no legitimate penological purpose to . . . actively discourage or disallow proper . . . medical attention.” Id. All of these statements are within a section entitled “Powell violated the Prisoners’ Eighth Amendment rights by denying them access to fresh air and irrigation after the CS gas exposure.” Id. at 43.
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prisoners’ symptoms through some sort of professional medical care. And we are aware of no prisoner who, in fact, asked for medical care and had it denied.
In sum, Redmond forfeited his claim that Powell acted with deliberate indifference to the prisoners’ serious medical needs in violation of the Eighth Amendment. And had Redmond not forfeited this claim, Powell would nonetheless be entitled to qualified immunity.
3. Other Eighth Amendment Claims Redmond makes two additional Eighth Amendment claims we can easily dismiss.7 First, he argues Nicholes and Powell created an unconstitutional condition of confinement by insulting and intimidating the prisoners. But the objective component of a conditions-of-confinement claim requires Redmond to allege a condition that is either “sufficiently serious so as to deprive inmates of the minimal civilized measure of life’s necessities” or “constitute[s] a substantial risk of serious harm.” Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001). All Redmond cites for the proposition that isolated insults meet either requirement is a Supreme Court concurrence no other Justice joined. See Hudson v. McMillian, 503 U.S. 1, 16 (Stevens, J., concurring in part and concurring in the judgment).
7 Redmond also argues Powell created an unconstitutional condition of confinement by failing to “establish prompt, verbal contact with inmates” after the gassing to “alleviate their panic and anxiety.” Aplt. Br. at 44. We can easily dismiss this argument, however, as Redmond cites no case to show this violates any constitutional right, much less a clearly established one.
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He thus falls far short of meeting his burden of proving a constitutional violation occurred.
Second, Redmond argues Nicholes and Powell created an unconstitutional condition of confinement by failing to adequately train prison staff on the use of CS gas. But even assuming this violates the Eighth Amendment, Redmond fails to cite anything that clearly established this right. Indeed, his brief cites only the general conditions-of-confinement standard laid out in Farmer v. Brennan, 511 U.S. 825, 834 (1994). And as we discussed above, general propositions of law usually do not clearly establish rights. See, e.g., Ashcroft, 563 U.S. at 742.
C. Utah Constitution Claims Lastly, Redmond claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. The clause, a variation on excessive-force principles, states that “[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor.” Utah Const. art. I, § 9. To recover under the clause, Redmond must establish, among other things, that the prisoners suffered a flagrant violation of their constitutional rights. See Jensen ex rel. Jensen v. Cunningham, 250 P.3d 465, 478 (Utah 2011).8 The Utah Supreme Court has explained that conduct must be “more than negligent” to flagrantly violate the unnecessary-rigor clause. See Dexter v. Bosko, 184 P.3d
8 To recover monetary damages under the Utah Constitution, Redmond would also need to show that existing remedies do not redress his injuries and equitable relief would be inadequate. See Cunningham, 250 P.3d at 478.
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Case 2:13-cv-00393-DAK Document 134 Filed 03/05/18 Page 23 of 25 Appellate Case: 16-4131 Document: 01019942580 Date Filed: 02/09/2018 Page: 23
592, 597 (Utah 2008). Redmond’s Utah Constitution claim thus fails for the same reason as his Eighth Amendment claims: the prison officials’ conduct inadvertently—or, in other words, negligently—exposed the prisoners to gas.
Redmond also sues Crowther in his official capacity and asks that we enjoin Crowther and direct him to adopt and comply with written policies regarding the deployment of gas. But Redmond lacks standing to sue for injunctive relief. “Plaintiffs have the burden to demonstrate standing for each form of relief sought.” Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006). And if a plaintiff seeks injunctive relief based on the threat of future harm, the “threat of injury must be both real and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983).
Redmond argues he has standing to sue for injunctive relief because the defendants are “disregarding an objectively intolerable risk of harm” that a similar situation with CS gas may occur. Aplt. Br. at 55. Yet he offers just speculation that a similar incident will occur. True, Redmond claims the prison has failed to “adopt[] a formal policy regarding the steps that should be undertaken to protect innocent prisoners from secondary exposure.” Id. But Nicholes has implemented a new procedure on his team to “take into account the HVA[C] system.” App. 865. Given this, Redmond’s argument that a similar incident will occur is “contingent upon speculation or conjecture” and thus “beyond the bounds of a
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Case 2:13-cv-00393-DAK Document 134 Filed 03/05/18 Page 24 of 25 Appellate Case: 16-4131 Document: 01019942580 Date Filed: 02/09/2018 Page: 24
federal court’s jurisdiction.” Lippoldt, 468 F.3d at 1218. Redmond therefore lacks standing to sue for injunctive relief.
In sum, Redmond’s claim for monetary damages and injunctive relief under the Utah Constitution fails.
III. Conclusion
The district court properly granted summary judgment. Redmond forfeited his claim based on Powell discouraging prisoners from seeking medical attention, and Powell and Nicholes are entitled to qualified immunity on all of Redmond’s other Eighth Amendment claims. Redmond cannot sue for damages under the Utah Constitution because he failed to show Powell and Nicholes flagrantly violated the Utah Constitution. And Redmond lacks standing to sue for injunctive relief under the Utah Constitution.
We accordingly AFFIRM.
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Case 2:13-cv-00393-DAK Document 134 Filed 03/05/18 Page 25 of 25 Appellate Case: 16-4131 Document: 01019942582 Date Filed: 02/09/2018 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
February 09, 2018

Chris Wolpert Chief Deputy Clerk

Ms. Karra J. Porter Ms. Kristen C. Kiburtz Christensen & Jensen 257 East 200 South, Suite 1100 Salt Lake City, UT 84111
RE: 16-4131, Redmond, et al v. Crowther, et al Dist/Ag docket: 2:13-CV-00393-DAK
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 6 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

cc: All Parties on Appeal

Elisabeth A. Shumaker Clerk of the Court

 
 Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 1 of 15
CLOSED,OPEN_MJ
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:13−cv−00393−DAK

Redmond et al v. Bigelow et al Assigned to: Judge Dale A. Kimball Case in other court: USCA Tenth Circuit, 16−04131 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/03/2013 Date Terminated: 06/28/2016 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Timothy Redmond

represented by Bryson R. Brown CHRISTENSEN & JENSEN PC 257 E 200 S STE 1100 SALT LAKE CITY, UT 84111 (801)323−5000 Email: bryson.brown@chrisjen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric K. Jenkins GOEBEL ANDERSON PC 405 S MAIN ST STE 200 SALT LAKE CITY, UT 84111 (801)441−9393 Email: ejenkins@gapclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M. Mejia ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 Email: jmejia@acluutah.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karra J. Porter CHRISTENSEN & JENSEN PC 257 E 200 S STE 1100 SALT LAKE CITY, UT 84111 (801)323−5000 Email: karra.porter@chrisjen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen C. Kiburtz CHRISTENSEN & JENSEN PC 257 E 200 S STE 1100 SALT LAKE CITY, UT 84111 (801)323−5000 Email: kristen.kiburtz@chrisjen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah M. Farrell ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 Email: lfarrell@acluutah.org

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 2 of 15

ATTORNEY TO BE NOTICED

Plaintiff Nick Watson

represented by Bryson R. Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric K. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karra J. Porter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen C. Kiburtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff George Monfort

represented by Eric K. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karra J. Porter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen C. Kiburtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Daniel Lassche

represented by Eric K. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 3 of 15

John M. Mejia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karra J. Porter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen C. Kiburtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kraig Canfield

represented by Eric K. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karra J. Porter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen C. Kiburtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Alfred Bigelow TERMINATED: 01/29/2015

represented by Joni J. Jones UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: jonijones@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kyle J. Kaiser UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 4 of 15

160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: kkaiser@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Robert Powell

represented by Joni J. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle J. Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucia Maloy UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: lmaloy@agutah.gov ATTORNEY TO BE NOTICED

Defendant Jason Nicholes

represented by Joni J. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle J. Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucia Maloy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Scott Crowther as successor to Alfred Bigelow in his official capacity

represented by Joni J. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle J. Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucia Maloy (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 5 of 15

Neil Andersen TERMINATED: 01/29/2015

Joni J. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle J. Kaiser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/03/2013
06/03/2013 06/05/2013 06/05/2013 06/05/2013 06/11/2013 06/11/2013 06/11/2013

# Docket Text
1 Case has been indexed and assigned to Magistrate Judge Paul M. Warner. Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson is directed to E−File the Complaint and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $ 400.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is electronically filed and the filing fee paid in the CM/ECF system. Civil Summons may be issued electronically. Prepare the summons using the courts PDF version and email it to utdecf_clerk@utd.uscourts.gov for issuance. (rls) (Entered: 06/03/2013)
2 COMPLAINT against All Defendants (Filing fee $ 400, receipt number 1088−1842066), filed by Timothy Redmond, George Monfort, Daniel Lassche, Kraig Canfield, Nick Watson. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet) Assigned to Magistrate Judge Paul M. Warner (Farrell, Leah) (Entered: 06/03/2013)
3 **RESTRICTED DOCUMENT**Summons Issued Electronically as to FNU Anderson. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (jds) (Entered: 06/05/2013)
4 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Alfred Bigelow. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (jds) (Entered: 06/05/2013)
5 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Robert Powell. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (jds) (Entered: 06/05/2013)
6 Defendant's MOTION for Extension of Time to File Answer re 2 Complaint, filed by Defendants FNU Anderson, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 06/11/2013)
7 NOTICE OF ADR, e−mailed or mailed to Defendants FNU Anderson, Alfred Bigelow, Robert Powell, Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (alp) (Entered: 06/11/2013)
8 NOTICE − This case is assigned to a magistrate judge. To consent or request reassignment, use the form on this link or use the included form for non−efilers and send it to consents@utd.uscourts.gov within 15 days or mail to the court with Attention: Consent Clerk on the envelope. Notice e−mailed or mailed to Defendants FNU Anderson, Alfred Bigelow, Robert Powell, Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. Form due by 6/26/2013. (alp) (Entered: 06/11/2013)

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 6 of 15

06/12/2013
06/12/2013 06/12/2013 06/13/2013 06/14/2013
06/14/2013
06/14/2013
06/27/2013
07/11/2013 07/12/2013
07/18/2013 07/18/2013 07/18/2013 07/19/2013 07/19/2013

9 DOCKET TEXT ORDER granting 6 Defendants' MOTION for Extension of Time to File Answer re: 2 Complaint. Answer deadline updated for All Defendants. Answers due 07/12/2013. Signed by Magistrate Judge Paul M. Warner on 06/12/2013. (docket text order; no attached document) (jcd) (Entered: 06/12/2013)
10 RECEIVED Consent/Reassignment Form from Defendants FNU Anderson, Alfred Bigelow, Robert Powell. (alp) (Entered: 06/12/2013)
11 CLERKS ORDER of Granting Extension of time to file response re 2 Complaint on or before 7/12/13 signed by LSY (alp) (Entered: 06/13/2013)
12 RECEIVED Consent/Reassignment Form from Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond. (alp) (Entered: 06/13/2013)
13 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Timothy Redmond, George Monfort, Daniel Lassche, Kraig Canfield, Nick Watson as to Robert Powell served on 6/7/2013, answer due 7/12/2013. (Attachments: # 1 Exhibit Court Ordered Summons)(Farrell, Leah) (Entered: 06/14/2013)
14 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Timothy Redmond, George Monfort, Daniel Lassche, Kraig Canfield, Nick Watson as to Alfred Bigelow served on 6/7/2013, answer due 7/12/2013. (Attachments: # 1 Exhibit Court Ordered Summons)(Farrell, Leah) (Entered: 06/14/2013)
15 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Timothy Redmond, George Monfort, Daniel Lassche, Kraig Canfield, Nick Watson as to FNU Anderson served on 6/7/2013, answer due 7/12/2013. (Attachments: # 1 Exhibit Court Ordered Summons)(Farrell, Leah) (Entered: 06/14/2013)
16 All Consent/Reassignment Forms have now been received. After review of all forms, Case Reassigned to District Judge per request of one or more party(s). Case randomly assigned to Judge Dale A. Kimball. Magistrate Judge Paul M. Warner no longer assigned to the case. (alp) (Entered: 06/27/2013)
17 Defendant's MOTION for Extension of Time to File Answer re 2 Complaint, filed by Defendants FNU Anderson, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 07/11/2013)
18 ORDER granting 17 Motion for Extension of Time to Answer re 2 Complaint. Answer deadline updated for FNU Anderson answer due 7/19/2013; Alfred Bigelow answer due 7/19/2013; Robert Powell answer due 7/19/2013. Signed by Judge Dale A. Kimball on 7/12/13. (jlw) (Entered: 07/12/2013)
19 ANSWER to Complaint with Jury Demand filed by Robert Powell.(Kaiser, Kyle) (Entered: 07/18/2013)
20 ANSWER to Complaint with Jury Demand filed by Alfred Bigelow.(Kaiser, Kyle) (Entered: 07/18/2013)
21 ANSWER to Complaint with Jury Demand filed by FNU Anderson.(Kaiser, Kyle) (Entered: 07/18/2013)
22 NOTICE FROM THE COURT re: Initial Scheduling The court's IPT Clerk will now set the case for the Initial Pretrial Scheduling Conference (asp) (Entered: 07/19/2013)
23 NOTICE OF INITIAL PRETRIAL CONFERENCE: (Notice generated by Amy Pehrson, IPT Clerk) The Attorneys Planning Meeting Report and Proposed Scheduling Order forms, available on the court web site at http://www.utd.uscourts.gov/documents/formpage.html, should be prepared 21 days before the Initial Pretrial Conference hearing date.

NOTICE TO COUNSEL, The Court may enter a scheduling order and vacate the hearing if counsel (a) file a stipulated Attorneys Planning Meeting Report; and (b) e−mail a Proposed Scheduling Order to ipt@utd.uscourts.gov 21 days before the scheduled hearing. See instructions at http://www.utd.uscourts.gov/documents/ipt.html

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 7 of 15

08/21/2013 08/21/2013 08/22/2013 08/28/2013
09/03/2013
09/04/2013 09/05/2013 09/05/2013 09/10/2013 09/10/2013 09/19/2013
09/19/2013 10/17/2013
10/17/2013
10/28/2013

If counsel or the parties would like to participate by phone they must contact chambers at least two days in advance at utdecf_furse@utd.uscourts.gov to make arrangements.
Initial Pretrial Conference set for 9/12/2013 10:30 AM in Room 477 before Magistrate Judge Evelyn J. Furse. (alp) (Entered: 07/19/2013)
24 Joint MOTION for Disclosure of Records filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Jones, Joni) (Entered: 08/21/2013)
25 ORDER granting 24 Motion for Disclosure. Signed by Judge Dale A. Kimball on 8/21/13. (jlw) (Entered: 08/21/2013)
26 REPORT OF ATTORNEY PLANNING MEETING. (Mejia, John) (Entered: 08/22/2013)
27 SCHEDULING ORDER FOR PHASE ONE OF BIFURCATED DISCOVERY: Initial Pretrial Hearing set for September 12, 2013, at 10:30 a.m. is vacated. See order for further details. Signed by Magistrate Judge Evelyn J. Furse on 8/28/13. (jlw) (Entered: 08/28/2013)
28 Joint MOTION to Take Deposition from Nick Watson, George Monfort, Daniel Lassche and Kraig Canfield filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 09/03/2013)
29 ORDER granting 28 Motion to Take Depositions from Nick Watson, George Monfort, Daniel Lassche, and Kraig Canfield. Signed by Judge Dale A. Kimball on 9/4/13 (alt) (Entered: 09/04/2013)
30 NOTICE of Appearance by Eric K. Jenkins on behalf of All Plaintiffs (Jenkins, Eric) (Entered: 09/05/2013)
31 MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Jenkins, Eric) (Entered: 09/05/2013)
32 Joint MOTION to Take Deposition from Timothy K. Redmond filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 09/10/2013)
33 ORDER granting 32 Motion to Take Deposition from Timothy Redmond. Signed by Judge Dale A. Kimball on 9/10/13. (jlw) (Entered: 09/10/2013)
34 MOTION for Writ of Habeas Corpus ad testificandum re: Timothy Redmond filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order Writ of Habeas Corpus Ad Testificandum)(Kaiser, Kyle) (Entered: 09/19/2013)
35 Writ of Habeas Corpus ad Testificandum Issued as to Timothy Redmond for 09/20/2013 before Judge Dale A. Kimball (asp) (Entered: 09/19/2013)
36 Defendant's MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Certify Class and Memorandum in Support until October 28, 2013 and extension for Plaintiffs' Reply until November 14, 2013 filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 10/17/2013)
37 ORDER granting 36 Motion for Extension of Time to File Response/Reply re 31 MOTION to Certify Class and Memorandum in Support . Responses due by 10/28/2013. Signed by Judge Dale A. Kimball on 10/17/13. (jlw) (Entered: 10/17/2013)
38 MOTION for Leave to File Excess Pages for Opposition Memorandum filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 10/28/2013)

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 8 of 15

10/28/2013 10/28/2013
10/29/2013 10/29/2013 10/29/2013 11/07/2013 11/07/2013 11/21/2013 11/21/2013 12/05/2013 12/06/2013 12/09/2013
12/09/2013 12/09/2013

39 MOTION to Seal Exhibits Filed in Support of Defendants' Opposition to Motion for Class Certification filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) (Entered: 10/28/2013)
40 MEMORANDUM in Opposition re 31 MOTION to Certify Class and Memorandum in Support filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1−Facility Diagram Filed Under Seal, # 3 Exhibit 2− Board of Pardons Records, # 4 Exhibit 3− Deposition Transcript of Tim Redmond, # 5 Exhibit 4− Deposition Transcript of Kraig Canfield, # 6 Exhibit 5− Deposition Transcript of George Monfort, # 7 Exhibit 6− Deposition Transcript of Daniel Lassche, # 8 Exhibit 7− Deposition Transcript of Nick Watson, # 9 Exhibit 8− Olympus Central Shift Log Filed Under Seal, # 10 Exhibit 9− Olympus Housing Shift Log Filed Under Seal, # 11 Exhibit 10− Declaration of Robert Powell, # 12 Exhibit 11− Declaration of Billie Casper, # 13 Exhibit 12− incident Report Filed Under Seal)(Kaiser, Kyle) (Entered: 10/28/2013)
41 ORDER granting 38 Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 10/29/13. (jlw) (Entered: 10/29/2013)
42 ORDER granting 39 Motion to Seal. Signed by Judge Dale A. Kimball on 10/29/13. (jlw) (Entered: 10/29/2013)
43 **SEALED DOCUMENT** Exibits 1, 8, 9 & 12 re 40 Memorandum in Opposition to Motion filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Attachments: # 1 Exhibit 8, # 2 Exhibit 9, # 3 Exhibit 12)(jlw) (Entered: 10/31/2013)
44 MOTION for Extension of Time to File Response/Reply as to 40 Memorandum in Opposition to Motion,,, and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Farrell, Leah) (Entered: 11/07/2013)
45 ORDER granting 44 Motion for Extension of Time to File Response/Reply. Replies due by 11/25/2013. Signed by Judge Dale A. Kimball on 11/7/13. (jlw) (Entered: 11/07/2013)
46 Second MOTION for Extension of Time to File Response/Reply as to 40 Memorandum in Opposition to Motion,,, and Memorandum in Support [Unopposed Motion] filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Jenkins, Eric) (Entered: 11/21/2013)
47 ORDER granting 46 Motion for Extension of Time to File Response/Reply. Replies due by 12/9/2013. Signed by Judge Dale A. Kimball on 11/21/13. (jlw) (Entered: 11/21/2013)
48 MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiffs Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Jenkins, Eric) (Entered: 12/05/2013)
49 ORDER granting 48 Motion for Leave to File Excess Pages. Signed by Judge Dale A. Kimball on 12/6/13. (jlw) (Entered: 12/06/2013)
50 REDACTION to 31 MOTION to Certify Class and Memorandum in Support Reply Memorandum ISO Motion for Class Certification by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Exhibit 1: George Monfort Deposition, # 2 Exhibit 3: Powell Declaration, # 3 Exhibit 4: Daniel Lassche Deposition, # 4 Exhibit 5: Kraig Canfield Deposition, # 5 Exhibit 6: Tim K. Redmond Deposition, # 6 Exhibit 7: Nick Watson Deposition)(Jenkins, Eric) (Entered: 12/09/2013)
51 NOTICE OF CONVENTIONAL FILING filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson re 50 Redacted Document,, Unredacted Reply Memo ISO Motion for Class Certification and Exhibit 2: Hill Video (Jenkins, Eric) (Entered: 12/09/2013)
52 **SEALED DOCUMENT** Reply Memorandum in Support of 31 MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 9 of 15

12/16/2013
02/06/2014 04/02/2014
06/18/2014 07/07/2014 07/08/2014 07/17/2014 07/18/2014
10/14/2014 10/15/2014 11/22/2014 12/09/2014 12/15/2014

Lassche, George Monfort, Timothy Redmond, Nick Watson. Exhibit containing video (entitled "Hill video") has been placed in permanent storage. (jlw) (Entered: 12/10/2013)
53 REPLY to Response to Motion re 31 MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Exhibit 1 George Monfort Depo, # 2 Exhibit 2 Hill Video Previously Filed Under Seal [Dkt 52], # 3 Exhibit 3 Powell Declaration, # 4 Exhibit 4 Daniel Lassche Depos, # 5 Exhibit 5 Kraig Canfield Depo, # 6 Exhibit 6 Tim K. Redmond Depo, # 7 Exhibit 7 Nick Watson Deposit)(Jenkins, Eric) (Entered: 12/16/2013)
54 NOTICE OF HEARING ON MOTION re: 31 MOTION to Certify Class : (Notice generated by Chambers) Motion Hearing is set for Wednesday, 4/2/2014 at 03:00 PM in Room 150 (Clerks Office) before Judge Dale A. Kimball. (kmj) (Entered: 02/06/2014)
55 Minute Entry for proceedings held before Judge Dale A. Kimball: Motion Hearing held on 4/2/2014 re 31 MOTION to Certify Class and Memorandum in Support filed by George Monfort, Kraig Canfield, Timothy Redmond, Daniel Lassche, Nick Watson. The Court heard the arguments of counsel and took the motion under advisement. Attorney for Plaintiff: Karra Porter & John Mejia. Attorney for Defendant: Kyle Kaiser & Joni Jones. Court Reporter: Patti Walker. (kmj) (Entered: 04/02/2014)
56 MEMORANDUM DECISION granting 31 Motion to Certify Class. The court certifies two subclasses−a Damages Class and an Injunctive Class. The court also certifies the named Plaintiffs as class representatives, and certifies Plaintiffs' counsel as Class Counsel. Signed by Judge Dale A. Kimball on 6/17/14. (jlw) (Entered: 06/18/2014)
57 Stipulated MOTION for Extension of Time to file a Proposed Schedule Order filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Farrell, Leah) (Entered: 07/07/2014)
58 ORDER granting 57 Motion for Extension of Time to File Proposed Scheduling Order. Signed by Judge Dale A. Kimball on 7/8/2014. (jds) (Entered: 07/08/2014)
59 Stipulated MOTION for Scheduling Order filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Farrell, Leah) (Entered: 07/17/2014)
60 ORDER granting 59 Motion for Scheduling Order Amended Pleadings due by 10/17/2014. Joinder of Parties due by 10/17/2014. Discovery due by 3/30/2015. Motions due by 5/29/2015. Final Pretrial Conference set for 11/2/2015 02:30 PM in Rm 3.400 before Judge Dale A. Kimball. 5 Day Jury Trial set for 11/16/2015 08:30 AM in Rm 3.400 before Judge Dale A. Kimball. Signed by Judge Dale A. Kimball on 7/18/2014. (jds) (Entered: 07/18/2014)
61 Stipulated MOTION for Extension of Time Deadline for Motions to Amend Pleadings and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Jenkins, Eric) (Entered: 10/14/2014)
62 ORDER granting 61 Stipulated Motion to Extend Deadline for Motions to Amend Pleadings. All motions to amend pleadings are now due no later than seven days after defendants have served their responses to plaintiffs first set of written discovery. Signed by Judge Dale A. Kimball on 10/15/2014. (jds) (Entered: 10/15/2014)
63 NOTICE of Change of Address by Eric K. Jenkins Effective December 8, 2014 (Jenkins, Eric) (Entered: 11/22/2014)
64 Stipulated MOTION for Scheduling Order , Second Amended, filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order)(Mejia, John) (Entered: 12/09/2014)
65 ORDER granting 64 Second Amended Motion for Scheduling Order Amended Pleadings due by 12/19/2014. Joinder of Parties due by 12/19/2014. Discovery due by

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 10 of 15

12/19/2014 12/31/2014 01/27/2015 01/29/2015
02/12/2015 03/31/2015
04/01/2015 04/01/2015 04/01/2015 05/01/2015 06/02/2015 08/24/2015 08/25/2015 09/28/2015

7/1/2015. Motions due by 8/28/2015. Final Pretrial Conference set for 3/21/2016 at 02:30 PM in Rm 3.400 before Judge Dale A. Kimball. 5 Day Jury Trial set for 4/4/2016 at 08:30 AM in Rm 3.400 before Judge Dale A. Kimball. Signed by Judge Dale A. Kimball on 12/12/2014. (jds) (Entered: 12/15/2014)
66 MOTION to Amend/Correct Complaint for Damages, and for Class−Wide Declaratory and Injunctive Relief filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Exhibit 1 − Amended Complaint)(Porter, Karra) (Entered: 12/19/2014)
67 RESPONSE to Motion re 66 MOTION to Amend/Correct Complaint for Damages, and for Class−Wide Declaratory and Injunctive Relief filed by Defendants Neil Andersen, Alfred Bigelow, Robert Powell. (Kaiser, Kyle) (Entered: 12/31/2014)
68 ORDER granting 66 Leave to Amend Complaint. Plaintiffs shall file their Amended Complaint within ten days of the date of this Order. Signed by Judge Dale A. Kimball on 1/27/2015. (jds) (Entered: 01/27/2015)
69 AMENDED COMPLAINT against Neil Andersen, Alfred Bigelow, Scott Crowther, Robert Powell, Jason Nicholes, filed by Timothy Redmond, George Monfort, Daniel Lassche, Kraig Canfield, Nick Watson. (Porter, Karra) Modified on 3/31/2015: removed unnecessary text, added names of new dfts and struck out names of dfts no longer named in the case (alt) (Entered: 01/29/2015)
70 WAIVER OF SERVICE Returned Executed filed by Timothy Redmond, George Monfort, Daniel Lassche, Kraig Canfield as to Jason Nicholes Waiver sent on 1/22/2015, answer due 3/23/2015. (Farrell, Leah) (Entered: 02/12/2015)
Modification of Docket re 69 Amended Complaint. Error: Filer did not use prompts to correctly identify parties being added and removed via the amended filing. Opposing counsel could not file their answer as the parties were not added to the case. Correction: Had filer verify changes and then added and removed dft parties from the case and from the entry − also removed unnecessary text from the entry. (alt) (Entered: 03/31/2015)
71 ANSWER to 69 Amended Complaint, with Jury Demand filed by Scott Crowther. Attorney Kyle J. Kaiser added to party Scott Crowther(pty:dft)(Kaiser, Kyle) (Entered: 04/01/2015)
72 ANSWER to 69 Amended Complaint, with Jury Demand filed by Robert Powell.(Kaiser, Kyle) (Entered: 04/01/2015)
73 ANSWER to 69 Amended Complaint, with Jury Demand filed by Jason Nicholes.(Kaiser, Kyle) (Entered: 04/01/2015)
74 EXPERT REPORT of Eldon Vail Witness filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Exhibit Vail Expert Report)(Jenkins, Eric) (Entered: 05/01/2015)
75 DESIGNATION OF EXPERTS Donald L. Leach II filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Supplement Copy of Expert Witness Docs)(Kaiser, Kyle) (Entered: 06/02/2015)
76 MOTION for Extension of Time to File Dispositive Motions and to Exclude Expert Testimony (Unopposed) filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Kaiser, Kyle) Modified by changing event type on 8/25/2015 (jwt). (Entered: 08/24/2015)
77 ORDER granting 76 Motion for Extension of Time to File Dispositive Motions and to Exclude Expert Testimony. Scheduling Order Amended: Dispositive Motion Deadline 9/28/2015; Deadline for Filing Motions to Exclude Expert Testimony 9/28/2015. Signed by Judge Dale A. Kimball on 8/25/2015. (jwt) (Entered: 08/25/2015)
78 Stipulated MOTION for Extension of Time to File Dispositive Motions and Re−Open Fact Discovery for Deposition filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order) Attorney Joni J. Jones added to party Scott Crowther(pty:dft), Attorney Joni J. Jones added to party Jason Nicholes(pty:dft)(Jones, Joni) (Entered: 09/28/2015)

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 11 of 15

09/28/2015
10/13/2015
10/13/2015 10/14/2015 10/15/2015 10/15/2015 10/27/2015 10/27/2015 11/10/2015
11/12/2015 12/07/2015

79 ORDER granting 78 Stipulated MOTION for Extension of Time to File Dispositive Motions and Re−Open Fact Discovery for Deposition filed by Robert Powell, Scott Crowther, Jason Nicholes. Motions due by 10/12/2015. All other deadlines in the Third Revised Scheduling Order (doc. 77) shall remain in effect. Except that the parties may re−open fact discovery for the purpose of Plaintiffs taking the deposition of Mr. St. Germaine. Signed by Judge Dale A. Kimball on 9/28/2015. (jwt) (Entered: 09/28/2015)
80 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Exhibit Exhibit Index, # 2 Exhibit 1 − Neil Anderson Depo Transcript, # 3 Exhibit 2 − Kraig Canfield Depo Transcript, # 4 Exhibit 3 − Nancy Eskelson Depo Transcript, # 5 Exhibit 4 − Daniel R. Gappmayer Depo Transcript, # 6 Exhibit 5 − Daniel Lassche Depo Transcript, # 7 Exhibit 6 − David Maloney Depo Transcript, # 8 Exhibit 7 − Jason McClain Depo Transcript, # 9 Exhibit 8 − George Monfort Depo Transcript, # 10 Exhibit 9 − Jason Nicholes Depo Transcript, # 11 Exhibit 10 − Robert Powell Declaration, # 12 Exhibit 11 − Robert Powell Depo Transcript, # 13 Exhibit 12 − Timothy Redmond Depo Transcript, # 14 Exhibit 13 − Nick Watson Depo Transcript, # 15 Exhibit 14 − Incident Report (filed under seal), # 16 Exhibit 15 − Control Logs (filed under seal), # 17 Exhibit 16 − Video (filed under seal))(Jones, Joni) (Entered: 10/13/2015)
81 Defendant's MOTION to Seal Document Exhibits Filed in Support of Motion for Summary Judgment filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Jones, Joni) (Entered: 10/13/2015)
82 ORDER granting 81 Motion to Seal Document Exhibits to 80 Defendant's MOTION for Summary Judgment and Memorandum in Support . Signed by Judge Dale A. Kimball on 10/14/2015. (jwt) (Entered: 10/14/2015)
83 NOTICE OF CONVENTIONAL FILING of Exhibits 14, 15, and 16 filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell re 80 Defendant's MOTION for Summary Judgment and Memorandum in Support (Jones, Joni) (Entered: 10/15/2015)
84 **SEALED DOCUMENT** Exhibits 14, 15 & 16 re 80 Defendant's MOTION for Summary Judgment filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell (Attachments: # 1 Exhibit 14 − Incident Report, # 2 Exhibit 15 − Control Logs, # 3 Exhibit 16 − James Hill Video − Exhibit is a video file that cannot be uploaded to the docket; disc will be permanently retained in sealed room) (blh) (Entered: 10/15/2015)
85 NOTICE of Appearance by Lucia Maloy on behalf of Scott Crowther, Jason Nicholes, Robert Powell (Maloy, Lucia) (Entered: 10/27/2015)
86 Amended NOTICE of Appearance by Lucia Maloy on behalf of Scott Crowther, Jason Nicholes, Robert Powell (Maloy, Lucia) Modified on 11/2/2015 − added amended text (jwt). (Entered: 10/27/2015)
87 Stipulated MOTION for Extension of Time to File Response/Reply as to 80 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Plaintiffs Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order Proposed Order Extending Deadline for Opposition Defendants' Motion for Summary Judgment) Attorney Bryson R. Brown added to party Timothy Redmond(pty:pla), Attorney Bryson R. Brown added to party Nick Watson(pty:pla)(Brown, Bryson) (Entered: 11/10/2015)
88 ORDER granting 87 Motion for Extension of Time to File Response/Reply re 80 Defendant's MOTION for Summary Judgment. Plaintiffs' deadline is extended to 12/8/2015. Signed by Judge Dale A. Kimball on 11/12/2015. (jds) (Entered: 11/12/2015)
89 Second MOTION for Extension of Time to Oppose Defendants' Motion for Summary Judgment and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order Proposed Order)(Porter, Karra) (Entered: 12/07/2015)

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 12 of 15

12/08/2015 12/18/2015 12/18/2015
12/18/2015 12/21/2015 12/22/2015 12/22/2015 12/23/2015 12/23/2015 12/23/2015
01/04/2016 01/05/2016

90 ORDER granting 89 Motion for Extension of Time. The deadline to file an Opposition to Defendants' Motion for Summary Judgment is December 18, 2015. Signed by Judge Dale A. Kimball on 12/8/2015. (eat) (Entered: 12/08/2015)
91 MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order Proposed Order)(Porter, Karra) (Entered: 12/18/2015)
92 MEMORANDUM in Opposition re 80 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Exhibit A − Depo of David Maloney, # 2 Exhibit B − Depo of Eric St. Germain, # 3 Exhibit D − Depo of Jason Nicholes, # 4 Exhibit E − Depo of Daniel Gappmayer, # 5 Exhibit F − Depo of Robert Powell, # 6 Exhibit G − Map of Olympus, # 7 Exhibit H − Depo of Jason McClain, # 8 Exhibit I − Depo of Daniel Lassche, # 9 Exhibit J − Depo of Timothy Redmond, # 10 Exhibit K − Depo of Nick Watson, # 11 Exhibit L − Depo of George Monfort, # 12 Exhibit M − Depo of Kraig Canfield, # 13 Exhibit N − Depo of Nancy Eskelson, # 14 Exhibit O − Depo of Tyrell Shephard, # 15 Exhibit P − Depo of Calvin Welch, # 16 Exhibit Q − Depo of Robert Kempe, # 17 Exhibit R − Depo of Neil Andersen, # 18 Exhibit S − Photographs, # 19 Exhibit T − Depo of Eldon Vail, # 20 Exhibit U − Kempe Drawing, # 21 Exhibit V − Chronological Shift Log)(Porter, Karra) (Entered: 12/18/2015)
93 NOTICE OF CONVENTIONAL FILING of Exhibit C filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson re 92 Memorandum in Opposition to Motion,,,, (Porter, Karra) (Entered: 12/18/2015)
94 ORDER granting 91 Motion for Leave to File Excess Pages. Plaintiffs may have an additional 9 pages of argument for a total of 34 pages of argument in their Memorandum in Opposition to Defendants Motion for Summary Judgment 80 . Signed by Judge Dale A. Kimball on 12/21/2015. (eat) (Entered: 12/21/2015)
95 Modification of Docket: re 92 Memorandum in Opposition to Motion. Exhibits G, P, Q, S, and V of the memorandum were sealed per chambers instruction. Counsel may include these items in a motion to file under seal. (jwt) (Entered: 12/22/2015)
96 MOTION to Seal and Memorandum in Support Exhibits C, G, P, Q, S, V, W to Memorandum in Opposition to Motion for Summary Judgment filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Text of Proposed Order Proposed Order)(Porter, Karra) (Entered: 12/22/2015)
97 ORDER granting 96 Motion to Seal. Signed by Judge Dale A. Kimball on 12/23/2015. (jwt) (Entered: 12/23/2015)
98 EXHIBITS filed by Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson re 96 MOTION to Seal and Memorandum in Support Exhibits C, G, P, Q, S, V, W to Memorandum in Opposition to Motion for Summary Judgment, 97 Order on Motion to Seal. (Porter, Karra) (Entered: 12/23/2015)
99 **SEALED DOCUMENT** Exhibits re 80 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. Exhibit C is a video and is not attached to this entry, but is included on the disk attached to the paper filing. (Attachments: # 1 Exhibit G − Map of Olympus, # 2 Exhibit P − Deposition of Calvin Welch, # 3 Exhibit Q − Deposition of Robert Kempe, # 4 Exhibit S − Photographs, # 5 Exhibit V − Chronological Shift Log, # 6 Exhibit W − Bullet Report)(jwt) (Entered: 12/28/2015)
100 Stipulated MOTION for Extension of Time to File Response/Reply as to 99 Sealed Document,, filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Jones, Joni) (Entered: 01/04/2016)
101 ORDER granting Stipulated 100 Motion for Extension of Time to File Response/Reply re 100 Stipulated MOTION for Extension of Time to File Response/Reply as to 99 Sealed Document. Replies due by 2/4/2016. Signed by Judge Dale A. Kimball on 1/5/16. (jmr) (Entered: 01/05/2016)

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 13 of 15

02/02/2016 02/03/2016 02/05/2016 02/09/2016
02/09/2016
02/09/2016
02/25/2016 02/26/2016 02/26/2016 02/29/2016 03/03/2016 05/13/2016
05/16/2016 05/18/2016

102 Second MOTION for Extension of Time to File Response/Reply as to 80 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Jones, Joni) (Entered: 02/02/2016)
103 ORDER granting 102 Motion for Extension of Time to File Response/Reply re 80 Defendant's MOTION for Summary Judgment and Memorandum in Support. Reply Memorandum due by 2/25/2016. Signed by Judge Dale A. Kimball on 2/3/2016. (eat) (Entered: 02/03/2016)
104 Stipulated MOTION for Scheduling Order and Memorandum in Support to Amend Trial−Related Deadlines filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Mejia, John) (Entered: 02/05/2016)
105 REVISED SCHEDULING ORDER granting 104 Stipulated Motion for Scheduling Order. Final Pretrial Conference set for 8/29/2016 at 02:30 PM in Rm 3.400 before Judge Dale A. Kimball. 5 Day Jury Trial set for 9/12/2016 at 08:30 AM in Rm 3.400 before Judge Dale A. Kimball. Signed by Judge Dale A. Kimball on 2/9/2016. (eat) (Entered: 02/09/2016)
106 NOTICE OF HEARING ON MOTION re: 80 Defendant's MOTION for Summary Judgment : (Notice generated by DAK Chambers) Motion Hearing is set for Thursday, 4/14/2016 at 03:00 PM in Rm 1.100 (Clerk's Office) before Judge Dale A. Kimball. Court Address: 351 South West Temple, Salt Lake City, Utah (kmj) (Entered: 02/09/2016)
107 AMENDED NOTICE OF HEARING ON MOTION re: 80 Defendant's MOTION for Summary Judgment : (Notice generated by DAK Chambers) Motion Hearing is reset for Wednesday, 5/18/2016 at 03:00 PM in Rm 3.400 before Judge Dale A. Kimball, at the request of Karra Porter, Esq. Court Address: 351 South West Temple, Salt Lake City, Utah (kmj) (Entered: 02/09/2016)
108 REPLY to Response to Motion re 80 Defendant's MOTION for Summary Judgment and Memorandum in Support filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Exhibit Declaration of Greg Peay)(Jones, Joni) (Entered: 02/25/2016)
109 MOTION to Seal Document Exhibit A in Support of Defendant's Motion for Summary Judgment filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order)(Jones, Joni) (Entered: 02/26/2016)
110 ORDER granting 109 Motion to Seal Document. Signed by Judge Dale A. Kimball on 2/26/2016. (eat) (Entered: 02/26/2016)
111 **SEALED DOCUMENT** Exhibit A re 108 Reply Memorandum/Reply to Response to Motion, filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (eat) (Entered: 02/29/2016)
112 NOTICE OF CONVENTIONAL FILING of Exhibit A filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell (Jones, Joni) (Entered: 03/03/2016)
113 MOTION for Leave to File Supplemental Brief Regarding Recent Incident in Support of 92 Opposition to Defendant's Motion for Summary Judgment and Memorandum in Support filed by Plaintiffs Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Attachments: # 1 Exhibit 1, Proposed Supplemental Brief re: Recent Incident, # 2 Exhibit to Proposed Supplemental Brief)(Mejia, John) Modified by creating docket entry relationship and adding docket text on 5/13/2016 (eat). (Entered: 05/13/2016)
114 AFFIDAVIT of Kraig Canfield, as an Exhibit to Proposed Supplemental Brief re 113 MOTION for Leave to File Supplemental Brief Regarding Recent Incident and Memorandum in Support filed by Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. (Mejia, John) (Entered: 05/16/2016)
115 Minute Entry for proceedings held before Judge Dale A. Kimball: Motion Hearing held on 5/18/2016 re 80 Defendant's MOTION for Summary Judgment filed by Robert Powell, Scott Crowther, Jason Nicholes. The Court heard the arguments of counsel and

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 14 of 15

05/19/2016 05/19/2016 05/24/2016 06/23/2016 06/28/2016 07/21/2016 07/22/2016
07/22/2016 07/22/2016 08/04/2016 08/30/2016

took the motion under advisement. Attorneys for Plaintiff: Karra Porter, John Mejia, Leah Farrell. Attorneys for Defendant: Joni Jones, Kyle Kaiser. Court Reporter: Phoebe Moorhead of Reporters, Inc..(kmj) (Entered: 05/18/2016)
116 RESPONSE to Motion re 113 MOTION for Leave to File Supplemental Brief Regarding Recent Incident and Memorandum in Support filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Exhibit Exhibit 1 − Declaration)(Jones, Joni) (Entered: 05/19/2016)
117 NOTICE OF CONVENTIONAL FILING of Exhibit 1 to Exhibit 1 to Response to Plaintiff's Supplemental Brief Regarding Recent Incident filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell re 116 Response to Motion, (Jones, Joni) (Entered: 05/19/2016)
118 **SEALED DOCUMENT** Exhibit 1 to Exhibit 1 of 116 Defendants' Response to Plaintiffs' Motion to File Supplemental Brief Regarding Recent Incident. Filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (eat) (Entered: 05/24/2016)
119 MEMORANDUM DECISION AND ORDER granting 80 Defendants' Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendants and close the case. Each party shall bear his own fees and costs. Signed by Judge Dale A. Kimball on 6/23/2016. (eat) (Entered: 06/23/2016)
120 CLERK'S JUDGMENT in favor of Defendants Jason Nicholes, Robert Powell, Scott Crowther; and against Plaintiffs Daniel Lassche, George Monfort, Kraig Canfield, Nick Watson, and Timothy Redmond. Signed by Anne W. Morgan. Case Closed. (eat) (Entered: 06/28/2016)
121 NOTICE of Appearance by Kristen C. Kiburtz on behalf of All Plaintiffs (Kiburtz, Kristen) (Entered: 07/21/2016)
122 NOTICE OF APPEAL as to 119 Order on Motion for Summary Judgment, Memorandum Decision,, 120 Clerk's Judgment filed by Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson. Appeals to the USCA for the 10th Circuit. Filing fee $ 505, receipt number 1088−2557287. (Porter, Karra) (Entered: 07/22/2016)
123 Transmission of Preliminary Record to USCA for the 10th Circuit re 122 Notice of Appeal. (Attachments: # 1 Appendix) (eat) (Entered: 07/22/2016)
124 USCA Case Number Case Appealed to USCA Tenth Circuit Case Number 16−4131 for 122 Notice of Appeal, filed by George Monfort, Kraig Canfield, Timothy Redmond, Daniel Lassche, Nick Watson. (jwt) (Entered: 07/22/2016)
125 TRANSCRIPT REQUEST by Kraig Canfield, Daniel Lassche, George Monfort, Timothy Redmond, Nick Watson for proceedings held on 05/18/16 before Judge Dale Kimball.. (Porter, Karra) (Entered: 08/04/2016)
126 **RESTRICTED DOCUMENT** Document will not be released, 128 Notice of Intent to Redact. See 132 Transcript Redaction. NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motions for Summary Judgment Hearing held on May 18, 2016, before Judge Dale A. Kimball, re 122 Notice of Appeal. Court Reporter/Transcriber Phoebe S. Moorhead, CSR, RPR, Telephone number (801)746−5080.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After

Case: 2:13-cv-393 As of: 06/11/2019 05:48 PM MDT 15 of 15

09/12/2016 09/20/2016
09/21/2016
10/06/2016 10/11/2016 12/01/2016 03/05/2018

that date it may be obtained through PACER. Redaction Request due 9/20/2016. Redacted Transcript Deadline set for 9/30/2016. Release of Transcript Restriction set for 11/28/2016. (eat) Modified on 9/26/2016 by adding non−release info. (las). Modified by adding docket entry relationship to redacted transcript on 10/11/2016 (eat). (Entered: 08/30/2016)
128 NOTICE of Intent to Request Redaction by Joni J. Jones re 126 Transcript −Appeal,,,,,. (Jones, Joni) (Entered: 09/12/2016)
129 Joint MOTION to Redact 126 Transcript −Appeal,,,,, filed by Defendants Scott Crowther, Jason Nicholes, Robert Powell. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit A −− Redacted Transcript)(Jones, Joni) (Entered: 09/20/2016)
130 ORDER granting 129 Motion to Redact 126 Transcript. Based on the Joint Motion to Redact May 16, 2016 Hearing Transcript and good cause appearing, the Court hereby grants the parties motion to redact page 24 lines 10−16 and page 55 lines 14−17 of the May 16, 2016 hearing transcript. Signed by Judge Dale A. Kimball on 9/21/16. (jlw) (Entered: 09/21/2016)
131 Please be advised the Record is complete for purposes of appeal for USCA case number 16−04131 re 122 Notice of Appeal. (eat) (Entered: 10/06/2016)
132 TRANSCRIPT REDACTION of 126 Transcript −Appeal re 122 Notice of Appeal. (eat) Modified on 11/28/2016 by removing restricted text (las). (Entered: 10/11/2016)
Transcript Deadlines terminated for 126 as there is a redacted transcript. (rks) (Entered: 12/01/2016)
134 MANDATE of the USCA for the 10th Circuit as to 122 Notice of Appeal filed by George Monfort, Kraig Canfield, Timothy Redmond, Daniel Lassche, and Nick Watson. According to the USCA, the order of the USDC for the Dist of UT granting summary judgment is Affirmed. Judgment included with mandate: Yes. (Attachments: # 1 Judgment, # 2 Mandate Letter) (eat) (Entered: 03/05/2018)