UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ KENT G. SAVAGE, Plaintiff - Appellant,

v. MARY FALLIN, individually and in her official capacity as Governor of the State of Oklahoma; ROBERT PATTON, individually and in his official capacity as Director, Oklahoma Department of Corrections; JASON BRYANT, individually and in his official capacity as Warden, James Crabtree Correctional Center; TERRY CLINE, individually and in his official capacity as Commissioner of Health Department, State of Oklahoma; ROBERT DOKE, individually and in his official capacity as State Fire Marshall, State of Oklahoma; JEFFREY HICKMAN, individually and in his official capacity as Speaker of the House, State of Oklahoma; BRIAN BINGMAN, individually and in his official capacity as Senate President Pro Tem, State of Oklahoma; CLARK JOLLEY, individually and in his official capacity as Chairman of the Senate Appropriations Committee, State of Oklahoma, Defendants - Appellees. No. 16-6083 (D.C. No. 5:15-CV-01194-HE) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore FILED United States Court of Appeals Tenth Circuit 

### September 27, 2016
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.

________________ _________________ Kent Savage appeals the district cour t’s dismissal of his 42 U.S.C. § 1983 claims on various grounds. Although we ag ree with the bulk of the district court’s order, we conclude that Savage’s claims against tw o defendants alleging unsafe prison conditions were prematur ely dismissed and that the Governor is not entitled to legislative immunity with re spect to her alleged administ rative failures. Exercising jurisdiction under 28 U.S.C. § 1291, we af firm in part, reverse in part, and remand for further proceedings.
I Savage is an inmate at the medi um-security James Cr abtree Correctional Center (“JCCC”) in Oklahoma. In his complaint, he clai ms that the defendants have acted with deliberate indi fference toward serious danger resulting from prison overcrowding and understaffing. In particul ar, he alleges that only one correctional officer is generally on duty to monitor 23 0 inmates housed in the open dorms in his unit, and that only one officer—and someti mes no officer—is present during meals at the dining hall with over 250 inmates. Sava ge claims that open dormitory housing is especially dangerous because it cannot be effectively “loc ked down.” He claims that

ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 previous open spaces in his unit have b een converted into bun k housing, leaving “virtually no unencumbered sp ace.” And he alleges that st affing shortages render the prison unable to discipline inmates for infractions. Savage states that these conditions have led to endemi c prisoner-on-prisoner violence. He has been threatened with beating and robbery. Savage has witnessed frequent inmate-on-inmate assaults in th e dining hall and in open dorm housing. He also recounts an inmate homicide at JCCC, an incident in which an inmate’s throat was cut by a box cutter, and a large brawl involving 70 inmate s. Because of understaffing, inmates who “fea r for their life” are denied protective custody. Savage argues that the conditions place pr isoners’ safety at substantial risk. He states that he “does not want to be the traged y” that will prompt change but that it is “only a matter of time” before major incidents of violence occur. He claims th at the conditions of his confinement cause him to suffer sleep deprivati on, nightmares, anxiety, depression, severe headaches , and stomach problems. In addition to safety concerns, Sa vage alleges that overcrowding and understaffing have resulted in inadequate sanitation facilities, cancelled programs, delayed mail and laundry servi ces, insufficient clothing prov isions, rodent infestation in the food service ar ea, basic maintenance failures, long lines to access the Health Services Department, 1 and law library closures. Savage alleges that these issues are not isolated to JCCC. He claims that Oklahoma’s prison syst em in general is

1 Savage filed a separate case in the di strict court alleging inadequate medical care, which is not at issue in this appeal.4 operating at an average of 118 percent of cap acity, although it is staffed at 67 percent of the authorized level. Savage filed this suit, claiming vi olations of the Eighth Amendment and intentional infliction of emo tional distress against the G overnor of Oklahoma (Mary Fallin), the Director of the Oklahoma Depa rtment of Corrections (“DOC”) (Robert Patton), the Warden of the JCCC (Jason Brya nt), the State Fire Marshall (Terry Cline), the Commissioner of the Oklahoma Stat e Department of Health (Robert Doke), and several state legislators (Je ffrey Hickman, Bria n Bingman, and Clark Jolley). The district court screened Savage’s complain t under 28 U.S.C. § 1915A. A magistrate judge issued a recommendati on—later adopted by the district court— suggesting that the complain t be dismissed sua sponte. 2 The court held that all claims for damages against the defendants in their official capac ities were barred by the Eleventh Amendment, and dismis sed those claims without prejudice. 3 It also held that the Governor and legislator-defendant s were entitled to ab solute legislative immunity against any individual-capacity claims, and dismissed those claims with prejudice. The court dismis sed without prejudice all fe deral claims against the

2 Savage argues that he should not have been subject to the screening provision of § 1915A because he is not pr oceeding in forma pauperis. We reject this argument. See Plunk v. Givens, 234 F.3d 1128, 1129 (10t h Cir. 2000) (section 1915A applies to all prison litigants suing a governmental entity or employee regardless of in forma pauperis status).

3 Savage does not appeal the dismissa l of his official-c apacity claims for monetary damages.5 remaining defendants for failure to state a claim. Having dismissed all federal claims, it declined to exercise supplemental jurisdic tion over the state law claims. Savage timely appealed. Although they did not appear below, we invited defendants to submit a memora ndum brief to this court and they have done so.
II A “We review de novo a district court’ s conclusion on the question of absolute immunity.” Gagan v. Norton, 35 F.3d 1473 , 1475 (10th Cir. 1994). State legislators are entitled to absolute i mmunity from liability under § 1983 for their legislative activities. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998). And because “[a]bsolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity,” members of the executive branch ar e also entitled to absolute immunity when they are performing legi slative acts. Id. at 54, 55 (quotation omitted). Savage argues that the Governor and le gislators have been complicit in the overcrowding and understaffing in Oklaho ma prisons by failing to properly fund them. But choices about prison funding ar e “discretionary, policymaking decision[s] implicating the budgetary pr iorities of the [state] and the services the [state] provides.” Id. at 55-56. Thus, the legislat or-defendants’ alleged actions “bore all the hallmarks of traditional legislation,” id. at 55, and they are ent itled to legislative immunity.6 The same is true with resp ect to Governor Fallin as to her alleged failure to prompt the legislature to provide additi onal funding. See id. (executive official entitled to absolute immunity for quintessentia lly legislative policymaking decisions). However, Savage also allege s that Fallin has failed to take proper administrative actions to reduce overcro wding, including causing delays in the implementation of programs. Claims base d on these administrative actions are not barred by legislative immunity. See Kamp lain v. Curry Cty. Bd. of Comm’rs, 159 F.3d 1248, 1252 (10th Cir. 1998) (holding actions that do “not concern the enactment or promulgation of public policy” are not legi slative in nature). We thus reverse the district court’s dism issal of Savage’s § 1983 claim ag ainst Fallin based on her alleged administrative failures. 4
B We review de novo the district court’s dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6 ). Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 ( 2009) (quotation omitte d). Courts do not impose a “probability requireme nt,” but the pleadings must demonstrate “more than a

4 The district court also st ated briefly that any disc retionary actions made by the defendants were made in their official capacities, a nd the defendants would thus be entitled to Eleventh Am endment immunity. But Elev enth Amendment immunity does not apply to claims for injunctive relief . See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1197 (10th Cir. 1998) (claims for prospec tive relief may be pursued against state officials in eith er their official or indivi dual capacities under the Ex parte Young doctrine).7 sheer possibility that a defenda nt has acted unlawfully.” Id . (quotation omitted). We construe Savage’s pro se filings libera lly. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
1 In weighing whether prison conditions violate the Eighth Amendment, we “must be sensitive to the State’s interest in puni shment, deterrence, and rehabilitation, as well as the need for deference to ex perienced and expert prison administrators faced with th e difficult and dangerous ta sk of housing large numbers of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011). However, we “must not shrink from [our] obligation to enforce the constitutional rights of all persons, including prisoners.” Id. (quotati on omitted). “No static test can exist by which courts determine whethe r conditions of confinement are cruel and unusual, for the Eighth Amendment must draw its m eaning from the evolving standards of decency that mark the progr ess of a maturing society.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) ( quotation omitted). Prison conditions that are “restrictive a nd even harsh . . . are part of the penalty that criminal offenders pay for their offenses agai nst society.” Id. at 347. But conditions of confinement violate th e Eighth Amendment if they result in “serious deprivations of ba sic human needs.” Id. Th ese needs include “shelter, sanitation, food, personal sa fety, and medical care.” Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980). In pa rticular, inmates have a “constitutional right to be reasonably protected from cons tant threats of violence a nd sexual assaults from other8 inmates.” Id. at 572. To st ate an Eighth Amendment claim for failure to protect, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Construing his pro se fili ngs liberally, Savage makes two general allegations. First, he claims that st aff shortages and overcrowdi ng have strained sanitation facilities, food supplies, pr ison maintenance, and other pr ograms. The district court concluded that Savage’s allegations as to this sub-clai m rise merely to the level of discomfort or inconvenience, and are not sufficiently serious to support an Eighth Amendment claim. We agr ee. Savage has not allege d that these problems have deprived him “of the minimal civilized measure of lif e’s necessities.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (quotation omitted). To the extent Savage attempts to rely on indignities suffer ed by other inmates, he lacks standing to seek redress for injuries committed against others. Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993). Savage also claims that the number of correctional officers overseeing inmates is so low as to constitute a substantial risk to inmate safety. The district court concluded this sub-claim was deficient because it relate s to potential dangers posed by overcrowded prisons, but not realized da ngers which involve Sa vage himself. We disagree with this reasoning. “That the Eighth Amendment protects agains t future harm to inmates is not a novel proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Accordingly, courts may not “deny an in junction to inmates who plai nly proved an unsafe, life-9 threatening condition in their prison on th e ground that nothing yet had happened to them.” Id. Simply stated , “a remedy for unsafe conditions need not await a tragic event.” Id.; see also Ramos, 639 F.2d at 572 (an inmate “does not need to wait until he is actually assaulted befo re obtaining relief”). Savage discussed the assaults of other inmates in his complaint. But we do not read the complaint as relying on injuries to those inma tes, which Savage would lack standing to do. See Swoboda, 992 F.2d at 290. Instead, it appears Savage included these allegations to support th e claim that he personally fa ces an unreasonable risk of physical assault at JCCC. 5 Evidence that th e inmate population is “plagued with violence and the fear of violence” may suppor t an Eighth Amendment claim. Ramos, 639 F.2d at 572. And staffing that is insuff icient to provide ad equate security for inmates and staff may also contribut e to a violation. Id. at 573. In this regard, we conclude that Sava ge has met his initia l pleading burden. He alleges JCCC is plagued by inmate-on-inmate violen ce, and that he has been threatened with assault. Sa vage further alleges that onl y one correctional officer is generally on duty in his open dorm unit housi ng 230 prisoners, and th at at most, one officer monitors 250 inmates during mealtime s. These staffing ratios are similar to those at issue in other cases in which c ourts found Eighth Amendment violations. See Brown, 563 U.S. at 502 (“As many as 200 prisoners may liv e in a gymnasium, monitored by as few as two or three corr ectional officers.”); Hutto v. Finney, 437

5 Savage’s allegations re garding violence at other facilities, however, would not bear on Savage’s claim that he is endangered at JCCC.10 U.S. 678, 682 n.6 (1978) (“ Although it had 1,000 pris oners, Cummins employed only eight guards who were not themselves convi cts.”); Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 930-31 (E.D. Cal. 2009) (d escribing scenario in which two officers supervise 200 inmates as “extremely da ngerous”); Ramos v. Lamm, 485 F. Supp. 122, 141 (D. Colo. 1979) (three prison empl oyees cannot maintain security over 91 inmates housed in various locations), aff’d in relevant part Ra mos, 639 F.2d 559. To be sure, an allegation of prison overc rowding is not per se sufficient to support an Eighth Amendment claim. “Establishing the popul ation at which the State could begin to provide constitutionally ade quate [conditions] . . . requires a degree of judgment.” Brown, 563 U.S. at 538. “T he inquiry involves uncertain predictions regarding the effects of popul ation reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various population levels.” Id.; se e also Rhodes, 452 U.S. at 348 (rejecting argument that housing 38 percent more inmates than prison’s design capacity violated Eighth Amendment). But Savage alleges that prison officials have made statements acknowledging a link between staffing shortage s and a high risk of prison violence. At this preliminary phase, we conclude that Savage has plausibl y pled that he is subjected to overcrowding and staffing cond itions that pose a s ubstantial risk of serious harm. Farmer, 511 U.S. at 834.
2 This conclusion does not end our inquiry. To hold a prison o fficial liable for unconstitutional prison conditions, a plaintiff must show that “the official knows of11 and disregards an excessive ri sk to inmate health or safe ty; the official must both be aware of facts from which the inference coul d be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. Savage “need not show that a prison official acted or failed to act believi ng that harm actually would befall an inmate”; but he must show “that the offici al acted or failed to act despite his knowledge of a substa ntial risk of serious harm.” Id. at 842. If a risk is “expressly noted by prison officials in the past, and the circumst ances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have kno wn about it,” then a trier of fact may find that the defendant-official had actual knowledge of the risk. Id. at 842-43. Moreover, because § 1983 does not impose vicarious liability, “a plain tiff must plead that each Government-official defendant , through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. We agree with the district court that Savage has not adequately pled the subjective element of an Eighth Amendment violation as to Fire Marshall Hickman or Commissioner of the Health Department Doke. Savage merely alleges that despite regular inspections of the JCCC, these de fendants have not take n appropriate action to enforce the law. This allegation does not plausibly suggest that the heads of these agencies were personally awar e of conditions at JCCC giving rise to a substantial risk that inmates would suffer serious harm. We reach the opposite conclusion as to Warden Bryant and DOC Director Patton. Savage cited stat ements made by Patton noting that prison understaffing has12 created dangerous situations in Oklahoma. He also cl aims that Patton personally made the decision to transfer inmates from county jails to DOC custody, causing overcrowding at JCCC. As to Bryant, Sa vage alleges that he has failed to appropriately discipline inmates and cites to public statements from the previous JCCC warden decrying understaffing at the facility. See Farmer, 511 U.S. at 842 (subjective element may be satisfied by s howing that problems were “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past”). Given that deliberate indifference may be demonstrated thro ugh “circumstantial evidence, and a factfinder may conclude that a prison official kne w of a substantial risk from the very fact that the risk was obvious,” see id. (c itation omitted), we conclude Savage has satisfie d his initial pleading burden as to the subjective prong. 6
C The district court declined to exercise supplemental jurisdiction over Savage’s state law claims. 7 In their memorandum brief, defendants argue that Savage’s state law claims are barred by the Oklahoma Government al Tort Claims Act. We leave that

6 The district court did not consider wh ether Savage adequately alleged these elements as to Governor Fallin. We leave that issu e to the district c ourt to address in the first instance on remand. We similarly do not reach any other de fenses or bars to liability that may arise on remand.

7 Savage argues that in addition to a stat e law claim for intentional infliction of emotional distress, he also advances an indepe ndent federal claim, citing Estate of Trentadue ex rel. Aguilar v. United Stat es, 397 F.3d 840, 851 (10th Cir. 2005). But Estate of Trentadue merely allowed an Oklahoma state law cl aim for intentional infliction of emotional distress to proceed under the Federal Tort Claims Act. Id. at 852, 855. We consider only Savage’s state-law claim.13 argument, and any other issues not consid ered in this order and judgment, for consideration by the district court in the first instance.
III The district court’s dismissal of all cl aims against Hickman, Bingman, and Jolley is AFFIRMED . Its dismissal of Savage’s § 1983 claims against Cline and Doke is AFFIRMED . And the district court’s dismissal of all official capacity claims for damages is AFFIRMED . We REVERSE the court’s dismissal of the claims against Governor Fallin to the exte nt they rest on her admini strative actions. And we REVERSE the dismissal of Savage’s § 1983 clai ms against Bryant and Patton. We REMAND for further proceedings not inconsistent with this order and judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge