FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN M. MORGAN, 

No. 04-35608

Plaintiff-Appellee,

D.C. No.

v. CV-03-00132-RSL

ERIC MORGENSEN,

 ORDER

Defendant, AMENDING

and OPINION AND

AMENDED TOM CANADY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

May 3, 2006—Seattle, Washington

Filed October 6, 2006

Amended November 30, 2006

Before: Stephen Reinhardt, M. Margaret McKeown, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

18833
COUNSEL

Christine O. Gregoire, Attorney General; John C. Dittman

(argued), Assistant Attorney General, Olympia, Washington,

for the appellant. 

Timothy K. Ford (argued), Katrin E. Frank, Cristobal Joshua

Alex, Seattle, Washington, for the appellee.

ORDER

The opinion filed on October 6, 2006, is amended as follows: 

On slip opinion page 17457, line 2 of the second full paragraph, change “California” to “Washington”. 

With this amendment, the panel has voted to grant Appellee’s petition for rehearing/error correction, and deny Appellant’s petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35. 

Appellee’s petition for rehearing/error correction is

GRANTED. Appellant’s petition for rehearing and the peti18836 MORGAN v. CANADY
tion for rehearing en banc are DENIED. No further petitions

shall be entertained.

OPINION

CLIFTON, Circuit Judge: 

Plaintiff Steven Morgan, a Washington prisoner, was

injured by a defective printing press while working at a prison

job for which he had voluntarily applied. Morgan alleges that

he told his supervisor, Defendant Tom Canady, about the

problem, but that Canady forced Morgan to keep working.

Morgan brought a complaint under 42 U.S.C. § 1983, alleging

that the requirement to continue working under those circumstances violated his Eighth and Fourteenth Amendment rights.

Canady moved for summary judgment, asserting a defense of

qualified immunity, which the district court denied. He

appeals that decision, and we affirm. In so doing, we hold

that, under certain circumstances, dangerous prison working

conditions can give rise to an Eighth Amendment claim, notwithstanding the fact that the prisoner initially obtained his

specific employment assignment through a voluntary application process within the prison system. We further hold that a

prison official is not entitled to qualified immunity when he

orders a prisoner to continue operating prison work equipment

that the official has been warned and has reason to believe is

unnecessarily dangerous. 

I. Background

Because this case comes to us at the stage of defendant’s

motion for summary judgment, where the underlying facts are

disputed, we “assum[e] that the version of events offered by

the non-moving party is correct” when determining whether

the defendant should nonetheless be entitled to qualified

immunity. Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th

MORGAN v. CANADY 18837
Cir. 2003). We thus recount the facts, where disputed, based

upon the evidence and inferences supporting Morgan’s position, recognizing that a trier of fact may make different determinations. See Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).

At the time of the events giving rise to this litigation, Morgan was an inmate in the Monroe Correctional Complex in the

State of Washington. He was employed in the prison print

shop, where Canady was his immediate supervisor. Print shop

work is a Class II Tax Reduction Industry under Washington

state law, meaning that prisoners within these industries produce goods for sale to public agencies or nonprofit organizations. See REV. CODE WASH. 72.09.100(2). Among prisoners,

such employment is desirable, because it requires specialized

skill and pays more than ordinary prison labor. Prisoners

desiring such work must apply; employment within the Class

II industries is “at [the prisoner’s] own choice. . . .” See id.

at (2)(e). It is not the prisoner’s choice whether he will or will

not work, though. Prisoners who fail to secure Class II work

may instead be assigned to work elsewhere, usually within the

prison’s Class III Institutional Support Industries. See id. at

(3). Morgan was one of the few prisoners who was selected

for Class II employment within the Monroe Correctional

Complex prison print shop. As part of his employment, he

operated an AB Dick 9800 printing press. 

According to Morgan, he and other prison print shop

employees noticed that his press was dangerously defective.

Loose chains caused the press to buck and shake. Morgan

contends that, at some point after he first noticed that his press

was malfunctioning, the press bucked and almost tore off two

of his fingers while he was operating it. Morgan claims that

when he alerted Canady to the problem and asked that it be

fixed, Canady pointed to a pile of paper and told Morgan that

they had an urgent printing project and that there was no time

to stop the press for repairs. Canady told Morgan to continue

working and to “just be very careful.” 

18838 MORGAN v. CANADY
Morgan was subsequently injured when the press caught

his hand and tore off his right thumb. Morgan filed a § 1983

action against Canady and other prison officials.1 He alleged

that they subjected him to cruel and unusual punishment, in

violation of the Eighth Amendment, and deprived him of liberty without due process, in violation of the Fourteenth

Amendment, by compelling him to work under dangerous

conditions, resulting in his injury. Defendants brought a

motion for summary judgment on the ground of qualified

immunity. Morgan conceded that the claims against the other

defendants should be dismissed but opposed the motion as to

Canady. The district court granted summary judgment on

Morgan’s complaints as to the other defendants but denied the

motion for summary judgment on the basis of qualified

immunity as to Canady. 

II. Discussion

Ordinarily, a district court’s interlocutory order denying a

motion for summary judgment is not immediately appealable,

but there is an exception for a defendant’s motion for summary judgment on the basis of qualified immunity. Such an

order is immediately appealable. See Mitchell, 472 U.S. at

530. Not every issue is open to appellate review at this time,

though. In these circumstances, appellate review is generally

limited to issues of law and “does not extend to claims in

which the determination of qualified immunity depends on

disputed issues of material fact.” Wilkins, 350 F.3d at 951

(quoting Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001)

(per curiam)). This court’s review is de novo. See Osolinski

v. Kane, 92 F.3d 934, 936 (9th Cir. 1996). 

1Morgan also filed a workers’ compensation claim with the Washington

Department of Labor and Industries. The availability of a remedy under

state workers’ compensation law does not preclude a § 1983 claim. See

Jensen v. City of Oxnard, 145 F.3d 1078, 1084 n.3 (9th Cir. 1998). We

express no view on the merits of his workers’ compensation claim; our

review is limited to the question of qualified immunity. 

MORGAN v. CANADY 18839
[1] The doctrine of qualified immunity protects government

officials who perform discretionary functions from civil liability, as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). In analyzing whether a government official

is entitled to qualified immunity, we address two questions, in

a specific sequence. First, “[t]aken in the light most favorable

to the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right?” Saucier v.

Katz, 533 U.S. 194, 201 (2001). Second, is the right clearly

established such that a reasonable government official would

know that “his conduct was unlawful in the situation he confronted[?]” See id. at 202. We address each of these issues in

turn. 

A. Violation of a Constitutional Right

[2] The Eighth Amendment’s prohibition against cruel and

unusual punishment protects prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement. See Farmer v. Brennan, 511 U.S. 825,

832 (1994); see also Rhodes v. Chapman, 452 U.S. 337, 347

(1981). Incarceration itself renders prisoners dependent upon

their keepers and “strip[s] them of virtually every means of

self-protection.” Farmer, 511 U.S. at 833. Thus, while conditions of confinement may be, and often are, restrictive and

harsh, they “must not involve the wanton and unnecessary

infliction of pain.” Rhodes, 452 U.S. at 347. In other words,

they must not be devoid of legitimate penological purpose,

see Hudson v. Palmer, 468 U.S. 517, 548 (1984), or contrary

to “evolving standards of decency that mark the progress of

a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).

[3] A prisoner’s labor can constitute a condition of confinement, where the prisoner has no choice but to work in some

capacity within the prison. That is the case here, since Washington law provides that “[e]very prisoner in a state correc18840 MORGAN v. CANADY
tional facility shall be required to work.” REV. CODE WASH.

72.64.030. The prison officials supervising him have a constitutional obligation to take reasonable measures to guarantee

his safety. See Osolinski, 92 F.3d at 937. 

[4] Not every injury that a prisoner sustains while in prison

represents a constitutional violation. A prisoner claiming an

Eighth Amendment violation must show (1) that the deprivation he suffered was “objectively, sufficiently serious”; and

(2) that prison officials were deliberately indifferent to his

safety in allowing the deprivation to take place. Farmer, 511

U.S. at 834. More specifically, the Eighth Amendment is

implicated in the prison work context only when a prisoner

employee alleges that a prison official compelled him to “perform physical labor which [was] beyond [his] strength,

endanger[ed his life] or health, or cause[d] undue pain.” Berry

v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam);

see also Wallis v. Baldwin, 70 F.3d 1074 (9th Cir. 1995) (analyzing under the Eighth Amendment a prisoner’s claim that

his health was endangered when he was forced to remove

asbestos without protective gear). 

Canady argues that, as a matter of law, Morgan cannot

make out a constitutional violation because Morgan worked

at the print shop, a Class II industry, “at [his] own choice,”

REV. CODE WASH. 72.09.100(2)(e), and therefore could not

have been “compelled” to perform physical labor that endangered life and limb. Morgan, on the other hand, argues that

the fact that he chose to work in a Class II industry does not

transform the statutorily mandated labor he performed into a

voluntary act. 

[5] We agree with Morgan. Regardless of how a prisoner

obtains his work, once he is employed and not in a position

to direct his own labor, his supervisors are not free to visit

cruel and unusual punishments upon him. Morgan did not

apply to work with a dangerously defective printing press. See

Bagola v. Kindt, 131 F.3d 632, 645 n.18 (7th Cir. 1997)

MORGAN v. CANADY 18841
(“Whether or not a [prisoner] worker’s voluntary participation

[in a prison work program] would ordinarily remove him

from the Eighth Amendment’s protective umbrella, it is

apparent that voluntariness ends at the point where cruel and

unusual punishments begin.”). He did not waive his Eighth

and Fourteenth Amendment rights by taking a job in the print

shop. 

[6] Canady also argues that, as a matter of fact, Morgan

was not “compelled” to work, because he could have refused

to work, resigned from his Class II position, filed an administrative grievance within the prison system, or filed a Washington Industrial Safety and Health Act complaint. Morgan

argues, however, that refusing to work was not a viable

option. He submitted to the district court prison rules and regulations, provisions of the Washington Administrative Code,

and the testimony of other prisoners as evidence tending to

support that claim. Whether Morgan was actually free to disregard a work order is a factual question that the parties

argued about below. The district court expressly found that it

was a disputed factual issue and that summary judgment in

Canady’s favor based on that argument was precluded. As

noted above, at this early stage, we have no jurisdiction to

review the district court’s conclusion that there is a disputed

issue of material fact. See Wilkins, 350 F.3d at 951. For our

purposes, we conclude that the evidence, viewed in the light

most favorable to Morgan, shows that Canady violated Morgan’s constitutional right not to be compelled to perform work

that endangered his health and caused undue pain. 

B. Whether the Constitutional Right was Clearly

Established

[7] We proceed to the second qualified immunity inquiry:

whether that right was clearly established. A prison official is

not entitled to qualified immunity if the law governing his

conduct was clearly established such that a reasonable prison

official would know that his conduct was unlawful. See Har18842 MORGAN v. CANADY
low, 457 U.S. at 818. Qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). 

As an initial matter, Canady argues that he is entitled to

qualified immunity as a matter of law, because at the time of

the alleged violation, there existed no case law in this circuit,

and there was a conflict among the other circuits, as to

whether a prisoner could make out an Eighth Amendment

violation when he alleges that a prison official compelled him

to continue working with defective prison equipment. Canady

argues that given the state of the law, he could not have

known that he was violating Morgan’s clearly established

constitutional rights. 

Canady’s view is not entirely correct. At the time of the

alleged constitutional violation, there did exist a conflict

among other courts as to whether a prisoner could make out

an Eighth Amendment claim when he alleged that a prison

official ordered him to work with prison equipment that the

official has been told is dangerously defective. See Arnold v.

South Carolina Dep’t of Corrs., 843 F. Supp. 110, 112-14

(D.S.C. 1994) (surveying case law). There was, however, case

law within this circuit governing prison officials’ conduct in

the situation that Canady confronted. See Osolinski, 92 F.3d

934.2

In Osolinski, a prisoner was injured when an oven door in

the prison’s family visiting unit fell off its hinges and burned

his arm. He brought a § 1983 action alleging that prison officials violated his Eighth Amendment right against cruel and

unusual punishment by failing to repair the oven door despite

numerous maintenance requests. See 92 F.3d at 935. In ana2The fact that there was a potential circuit split on this issue does not

preclude our holding that the law was clearly established for the purposes

of the § 1983 inquiry. See Rivero v. City and County of San Francisco,

316 F.3d 857, 865 (9th Cir. 2002). 

MORGAN v. CANADY 18843
lyzing whether it was clearly established that prisoners had a

constitutional right to have prison officials repair known

safety hazards, the Osolinski court turned to the only precedent from our court at the time governing dangerous prison

conditions, Hoptowit v. Spellman, 753 F.2d 779 (9th Cir.

1985). 

In Hoptowit, this court concluded that various conditions of

confinement at a Washington prison violated the Eighth

Amendment. Among these conditions, “safety hazards found

throughout the penitentiary’s occupational areas, exacerbated

by the institution’s inadequate lighting, seriously threaten[ed]

the safety and security of inmates and create[d] an unconstitutional infliction of pain” in violation of the Eighth Amendment. Id. at 784. The Osolinski court then interpreted

Hoptowit to require a prisoner alleging Eighth Amendment

violations arising out of prison safety hazards to show what

might be called “danger-plus.” That is, he must demonstrate

the existence of not only a threat to his safety (in Hoptowit,

the unsafe occupational areas), but also some additional condition exacerbating that threat (in Hoptowit, inadequate lighting). Osolinski, 92 F.3d at 938. 

The Osolinski court favorably cited Gill v. Mooney, 824

F.2d 192 (2d Cir. 1987), as an example of when a “dangerplus” condition would violate the Eighth Amendment. In Gill,

a prisoner alleged an Eighth Amendment violation as a result

of an injury he sustained after a prison official ordered him to

continue working on a ladder that the prisoner had told him

was defective and unsafe. Id. at 195. The Osolinski court

noted that “[t]he order to remain on the ladder in Gill exacerbated the inherent dangerousness of the defective ladder, rendering the ladder a serious safety hazard, akin to those found

in Hoptowit.” 92 F.3d at 939. 

[8] The factual situation in the present case is essentially

like Gill. Morgan, like Gill, alerted his supervisor to a dangerous defect in the equipment he was using as a part of his

18844 MORGAN v. CANADY
prison employment. Canady, like Gill’s supervisor, ordered

the prisoner to continue working with the defective equipment. Both prisoners were injured as a result of following

those orders. Osolinski, and its extensive embedded discussion of Hoptowit and Gill, clearly established that a safety

hazard in an occupational area, the dangerousness of which is

exacerbated when a prison official orders a prisoner to continue working with it after the prisoner raised a concern about

whether it was safe to do so, constituted a violation of the

prisoner’s Eighth Amendment rights. 

[9] Before Morgan’s injury, the contours of this right were

sufficiently clear that a reasonable prison official would or

should have understood that compelling an inmate to continue

operating defective and dangerous prison work equipment

would violate the Eighth Amendment. Thus, Canady’s conduct was not reasonable in light of the precedent that existed

at the time of the alleged violation. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).3

 The district court properly

denied Canady’s motion for summary judgment on the basis

of qualified immunity. 

AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS. 

3We “need not reach the question whether the facts alleged show that

appellants acted with deliberate indifference. The focus of our review is

the objective requirement. We review Eighth Amendment law to determine whether, in light of clearly established principles at the time of the

incident, the officials could have believed their conduct was lawful.”

Osolinski, 92 F.3d at 937. 

MORGAN v. CANADY 18845