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, this panel has determined 

unanimously that oral argument would not materially 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 Court
2 

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Kent Savage appeals the district court’s dismissal of his 42 U.S.C. § 1983 

claims on various grounds. Although we agree with the bulk of the district court’s 

order, we conclude that Savage’s claims against two defendants alleging unsafe 

prison conditions were prematurely dismissed and that the Governor is not entitled to 

legislative immunity with respect to her alleged administrative failures. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand 

for further proceedings. 

I 

 Savage is an inmate at the medium-security James Crabtree Correctional 

Center (“JCCC”) in Oklahoma. In his complaint, he claims that the defendants have 

acted with deliberate indifference toward serious danger resulting from prison 

overcrowding and understaffing. In particular, he alleges that only one correctional 

officer is generally on duty to monitor 230 inmates housed in the open dorms in his 

unit, and that only one officer—and sometimes no officer—is present during meals at 

the dining hall with over 250 inmates. Savage claims that open dormitory housing is 

especially dangerous because it cannot be effectively “locked down.” He claims that 

 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
3 

previous open spaces in his unit have been converted into bunk housing, leaving 

“virtually no unencumbered space.” And he alleges that staffing shortages render the 

prison unable to discipline inmates for infractions.

 Savage states that these conditions have led to endemic prisoner-on-prisoner 

violence. He has been threatened with beating and robbery. Savage has witnessed 

frequent inmate-on-inmate assaults in the 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 inmates. Because of 

understaffing, inmates who “fear for their life” are denied protective custody. Savage 

argues that the conditions place prisoners’ safety at substantial risk. He states that he 

“does not want to be the tragedy” that will prompt change but that it is “only a matter 

of time” before major incidents of violence occur. He claims that the conditions of 

his confinement cause him to suffer sleep deprivation, nightmares, anxiety, 

depression, severe headaches, and stomach problems. 

 In addition to safety concerns, Savage alleges that overcrowding and 

understaffing have resulted in inadequate sanitation facilities, cancelled programs, 

delayed mail and laundry services, insufficient clothing provisions, rodent infestation 

in the food service area, 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 system in general is 

 1

 Savage filed a separate case in the district court alleging inadequate medical 

care, which is not at issue in this appeal.
4 

operating at an average of 118 percent of capacity, although it is staffed at 67 percent 

of the authorized level. 

 Savage filed this suit, claiming violations of the Eighth Amendment and 

intentional infliction of emotional distress against the Governor of Oklahoma (Mary 

Fallin), the Director of the Oklahoma Department of Corrections (“DOC”) (Robert 

Patton), the Warden of the JCCC (Jason Bryant), the State Fire Marshall (Terry 

Cline), the Commissioner of the Oklahoma State Department of Health (Robert 

Doke), and several state legislators (Jeffrey Hickman, Brian Bingman, and Clark 

Jolley). The district court screened Savage’s complaint under 28 U.S.C. § 1915A. A 

magistrate judge issued a recommendation—later adopted by the district court— 

suggesting that the complaint be dismissed sua sponte.2

 The court held that all 

claims for damages against the defendants in their official capacities were barred by 

the Eleventh Amendment, and dismissed those claims without prejudice.3

 It also held 

that the Governor and legislator-defendants were entitled to absolute legislative 

immunity against any individual-capacity claims, and dismissed those claims with 

prejudice. The court dismissed without prejudice all federal claims against the 

 2

 Savage argues that he should not have been subject to the screening provision of 

§ 1915A because he is not proceeding in forma pauperis. We reject this argument. See 

Plunk v. Givens, 234 F.3d 1128, 1129 (10th 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 dismissal of his official-capacity claims for 

monetary damages. 
5 

remaining defendants for failure to state a claim. Having dismissed all federal 

claims, it declined to exercise supplemental jurisdiction over the state law claims. 

Savage timely appealed. Although they did not appear below, we invited 

defendants to submit a memorandum 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 immunity 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 are also entitled to absolute 

immunity when they are performing legislative acts. Id. at 54, 55 (quotation 

omitted). 

Savage argues that the Governor and legislators have been complicit in the 

overcrowding and understaffing in Oklahoma prisons by failing to properly fund 

them. But choices about prison funding are “discretionary, policymaking decision[s] 

implicating the budgetary priorities of the [state] and the services the [state] 

provides.” Id. at 55-56. Thus, the legislator-defendants’ alleged actions “bore all the 

hallmarks of traditional legislation,” id. at 55, and they are entitled to legislative 

immunity. 
6 

The same is true with respect to Governor Fallin as to her alleged failure to 

prompt the legislature to provide additional funding. See id. (executive official 

entitled to absolute immunity for quintessentially legislative policymaking 

decisions). However, Savage also alleges that Fallin has failed to take proper 

administrative actions to reduce overcrowding, including causing delays in the 

implementation of programs. Claims based on these administrative actions are not 

barred by legislative immunity. See Kamplain 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 legislative in nature). We thus reverse the 

district court’s dismissal of Savage’s § 1983 claim against 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 omitted). Courts do not 

impose a “probability requirement,” but the pleadings must demonstrate “more than a 

 4

 The district court also stated briefly that any discretionary actions made by 

the defendants were made in their official capacities, and the defendants would thus 

be entitled to Eleventh Amendment immunity. But Eleventh 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 prospective relief may be pursued 

against state officials in either their official or individual capacities under the Ex 

parte Young doctrine). 
7 

sheer possibility that a defendant has acted unlawfully.” Id. (quotation omitted). We 

construe Savage’s pro se filings liberally. 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 punishment, deterrence, and 

rehabilitation, as well as the need for deference to experienced and expert prison 

administrators faced with the difficult and dangerous task 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. (quotation omitted). “No static test can exist by 

which courts determine whether conditions of confinement are cruel and unusual, for 

the Eighth Amendment must draw its meaning from the evolving standards of 

decency that mark the progress of a maturing society.” Rhodes v. Chapman, 452 

U.S. 337, 346 (1981) (quotation omitted). 

Prison conditions that are “restrictive and even harsh . . . are part of the 

penalty that criminal offenders pay for their offenses against society.” Id. at 347. 

But conditions of confinement violate the Eighth Amendment if they result in 

“serious deprivations of basic human needs.” Id. These needs include “shelter, 

sanitation, food, personal safety, and medical care.” Ramos v. Lamm, 639 F.2d 559, 

566 (10th Cir. 1980). In particular, inmates have a “constitutional right to be 

reasonably protected from constant threats of violence and sexual assaults from other 
8 

inmates.” Id. at 572. To state 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 filings liberally, Savage makes two general allegations. 

First, he claims that staff shortages and overcrowding have strained sanitation 

facilities, food supplies, prison maintenance, and other programs. The district court 

concluded that Savage’s allegations as to this sub-claim rise merely to the level of 

discomfort or inconvenience, and are not sufficiently serious to support an Eighth 

Amendment claim. We agree. Savage has not alleged that these problems have 

deprived him “of the minimal civilized measure of life’s necessities.” Barney v. 

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (quotation omitted). To the extent 

Savage attempts to rely on indignities suffered 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 relates to potential dangers posed 

by overcrowded prisons, but not realized dangers which involve Savage himself. We 

disagree with this reasoning. 

“That the Eighth Amendment protects against future harm to inmates is not a 

novel proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Accordingly, 

courts may not “deny an injunction to inmates who plainly proved an unsafe, life-
9 

threatening condition in their prison on the 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 before 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 inmates, which Savage would lack 

standing to do. See Swoboda, 992 F.2d at 290. Instead, it appears Savage included 

these allegations to support the claim that he personally faces an unreasonable risk of 

physical assault at JCCC.5

 Evidence that the inmate population is “plagued with 

violence and the fear of violence” may support an Eighth Amendment claim. Ramos, 

639 F.2d at 572. And staffing that is insufficient to provide adequate security for 

inmates and staff may also contribute to a violation. Id. at 573. 

In this regard, we conclude that Savage has met his initial pleading burden. 

He alleges JCCC is plagued by inmate-on-inmate violence, and that he has been 

threatened with assault. Savage further alleges that only one correctional officer is 

generally on duty in his open dorm unit housing 230 prisoners, and that at most, one 

officer monitors 250 inmates during mealtimes. These staffing ratios are similar to 

those at issue in other cases in which courts found Eighth Amendment violations. 

See Brown, 563 U.S. at 502 (“As many as 200 prisoners may live in a gymnasium, 

monitored by as few as two or three correctional officers.”); Hutto v. Finney, 437 

 5

 Savage’s allegations regarding 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 prisoners, Cummins employed only 

eight guards who were not themselves convicts.”); Coleman v. Schwarzenegger, 922 

F. Supp. 2d 882, 930-31 (E.D. Cal. 2009) (describing scenario in which two officers 

supervise 200 inmates as “extremely dangerous”); Ramos v. Lamm, 485 F. Supp. 

122, 141 (D. Colo. 1979) (three prison employees cannot maintain security over 91 

inmates housed in various locations), aff’d in relevant part Ramos, 639 F.2d 559. 

To be sure, an allegation of prison overcrowding is not per se sufficient to 

support an Eighth Amendment claim. “Establishing the population at which the State 

could begin to provide constitutionally adequate [conditions] . . . requires a degree of 

judgment.” Brown, 563 U.S. at 538. “The inquiry involves uncertain predictions 

regarding the effects of population reductions, as well as difficult determinations 

regarding the capacity of prison officials to provide adequate care at various 

population levels.” Id.; see 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 shortages and a high risk of prison violence. 

At this preliminary phase, we conclude that Savage has plausibly pled that he is 

subjected to overcrowding and staffing conditions that pose a substantial risk of 

serious harm. Farmer, 511 U.S. at 834. 

2 

This conclusion does not end our inquiry. To hold a prison official liable for 

unconstitutional prison conditions, a plaintiff must show that “the official knows of 
11 

and disregards an excessive risk to inmate health or safety; the official must both be 

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. Savage “need 

not show that a prison official acted or failed to act believing that harm actually 

would befall an inmate”; but he must show “that the official acted or failed to act 

despite his knowledge of a substantial risk of serious harm.” Id. at 842. If a risk is 

“expressly noted by prison officials in the past, and the circumstances suggest that 

the defendant-official being sued had been exposed to information concerning the 

risk and thus must have known 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 plaintiff 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 defendants have not taken appropriate action 

to enforce the law. This allegation does not plausibly suggest that the heads of these 

agencies were personally aware 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 statements made by Patton noting that prison understaffing has 
12 

created dangerous situations in Oklahoma. He also claims that Patton personally 

made the decision to transfer inmates from county jails to DOC custody, causing 

overcrowding at JCCC. As to Bryant, Savage 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 showing that problems were “longstanding, 

pervasive, well-documented, or expressly noted by prison officials in the past”). 

Given that deliberate indifference may be demonstrated through “circumstantial 

evidence, and a factfinder may conclude that a prison official knew of a substantial 

risk from the very fact that the risk was obvious,” see id. (citation omitted), we 

conclude Savage has satisfied 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 Governmental Tort Claims Act. We leave that 

 6

 The district court did not consider whether Savage adequately alleged these 

elements as to Governor Fallin. We leave that issue to the district court to address in 

the first instance on remand. We similarly do not reach any other defenses or bars to 

liability that may arise on remand. 

7

 Savage argues that in addition to a state law claim for intentional infliction of 

emotional distress, he also advances an independent federal claim, citing Estate of 

Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 851 (10th Cir. 2005). But 

Estate of Trentadue merely allowed an Oklahoma state law claim 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 considered in this order and judgment, for 

consideration by the district court in the first instance. 

III 

 The district court’s dismissal of all claims 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 extent they rest on her administrative actions. And we REVERSE

the dismissal of Savage’s § 1983 claims 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