UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 98-50595

__________________

DEVLIN R. PALMER,

Plaintiff-Appellee,

versus

GARY L. JOHNSON, ET AL.,

Defendants;

BRYAN HARTNETT, Warden; OSCAR MENDOZA, Assistant Warden,

Defendants-Appellants.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

______________________________________________

October 19, 1999

Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Bryan Hartnett and Oscar Mendoza appeal the district court’s

denial of their motion for summary judgment on the ground of

qualified immunity. We affirm.

I

Devlin R. Palmer, an in mate of the Texas prison system,

initiated the instant suit under 42 U.S.C. § 1983, alleging

violations of his const itutional rights and seeking monetary

damages and injunctive relief. Palmer’s claims were based on

events that transpi red on October 29 and 30, 1996. According to1 Palmer elected to avoid defecating because he did not want to

have to remain in close proximity to his waste.

2 Palmer, at approximately 1:30 P

. M

. on October 29, Palmer and other

members of his squad were reporting to t he field for work after

lunch, when they were stopped and lectured by a sergeant. As the

squad resumed walking to the work sit e, some of its members made

profane remarks about the lecture. The sergeant responded by

halting the squad, drawing a firearm, and ordering th e squad

members to sit in the field. At approximately 3:00 P

. M

., Assistant

Warden Mendoza arrived at the scene. Palmer explained to Mendoza

why the squad had been stopped. Despite the fact that most of the

inmates indicated that they wanted to go to work, Mendoza ordered

them to remain seated in the field.

Warden Hartnett arrived at approximately 5:00 P

. M

. He ordered

the forty-nine inmates to remain overnight in the field. These

inmates were confined to an area measuring approximately twenty

feet by thirty feet, bounded by poles and a string of lights.

Hartnett directed the correctional officers overseeing the inmates

to shoot anyone who attempted to leave the designated area of the

field. When Palmer asked to leave the area to urinate and

d efecate, he was informed that he would have to do so within the

confined space or he would be sh ot for attempting to escape. 1

Palmer also requested and was denied medication to treat insect

bites. Palmer additionally asked that the nearby tractor engines

be turned off because their noxious fumes disturbed him. The

guards indicated that they could not shut the engines without the2 The parties dispute whether the inmates received dinner on the

evening of October 29.

3 warden’s permission because they were being used to keep the

bounded area lit throughout the night.

Palmer had been dressed for a day of work in the fields so he

wore only a short-sleeved shirt. Because he was denied a jacket,

blankets, or other means of keeping warm, Palmer became extremely

cold as the temperature fell below fifty-nine degrees Fahrenheit.

He and his fellow inmates tried to stay warm by huddling together,

piling on top of one another, and digging holes in the dirt in an

unsuccessful attempt to construct earthen walls to block the winds.

Meanwhile, the guards wore jackets and stayed warm by lighting a

fire and by p eriodically retreating to vehicles with running

heaters. Both Hartnett and Mendoza were aware of these conditions

and observed the inmates during the night.

At approximately 5:30 A

. M

. on October 30, each inmat e was

provided a meal consisting of milk, cereal, and a peanut butter and

jelly sandwich. 2 Soon after, Warden Hartnett informed the inmates

that, if they refused to go to work, they would be forced to remain

outside for another night to “freeze again.” Palmer and forty-six

of the other squad members then went to work until approximately

11:30 A

. M ., when they returned to their unit for lunch.

Soon after he filed his complaint, Pa lmer moved for partial

summary judgment on the issue of liability. The defendants

asserted the defense of qualified immunity in their answer. The

defendants then moved for summary judgment based on t he Eleventh4

Amendment and the doctrine of qualified immunity. The defendants

acknowledged the occurrence of the “sleep-out” and did not deny any

o f Palmer’s specific allegations regarding the conditions of his

confinement. According to Warden Hartnett, the sleep-out was not

punitive but was an administrative measure intended to gain control

of unruly inmates.

The magistrate judge recommended dismissing with prejudice

Palmer’s c laims against all of the defendants in their official

capacity and against defe ndant Gary L. Johnson in his individual

capacity. The magistrate judge concluded that defendants Hartnett

and Mendoza were not entitled to qualified immunity and recommended

that the district court issue a partial summary judgment granting

declaratory and injunctive relief against Hartnett and Mendoza in

their individual capacities and allow Palmer’s claims against them

for monetary damages to proceed to trial.

The district court accepted the magistrate judge’s

recommendations, granting in part and denying in part both Palmer’s

summary judgment motion and the defendants’ summary j udgment

motion. The district court dismissed with prejudice all of

Palmer’s claims against Johnson as well as his claims against

Hartnett and Mendoza in their official capacities. The district

court found Hartnett and Mendoza to be liable in their individual

capacities for violating Palmer’s rights under the Eighth Amendment

and enjoined them from forcing Palmer to endure any future sleepouts without adequate clothing or shelter. The district court

ordered Palmer’s claims for monetary damages against Hartnett and5

Mendoza in their individual capacities to proceed to trial.

Pursuant to Federal Rule of Civil Procedure 59(e), Hartnett

and Mendoza moved to alter or amend the judgment or for

reconsideration or in the alternative for leave to file a

supplemental motion for s ummary judgment. The magistrate judge

recommended the denial of the motion. The district court accepted

the magistrate ju dge’s recommendation and denied the defendants’

motion, leaving its previous decision intact. Hartnett and Mendoza

then filed a notice of interlocutory appeal, advancing their claim

of entitlement to the defense of qualified immunity and challenging

the magistrate judge’s recommendations, the district court’s

partial grant of summary judgment and injunctive relief in favor of

Palmer, and the district court’s denial of their motion for

reconsideration.

II

A

We first consider our jurisdiction to consider the merits of

this interlocutory appeal. Ordinarily, we do not have jurisdiction

to review a den ial of a summary judgment motion because such a

decision is not final within the meaning of 28 U.S.C. § 1291.

Under the collateral order doctrine, however, a district court’s

denial of qualified immunity on a motion for summary judgment is

immediately appealable if it is based on a conclusion of law. S ee

Johnson v. Jones

, 515 U.S. 304, 115 S. Ct. 2151 (1995); Mitchell v.

Forsyth

, 472 U.S. 511, 105 S. Ct. 2806 (1985). Such orders are not

appealable if they are based on a claim regarding the sufficiency6

of the evidence. S ee Naylor v. S tate of Louisiana, Dep’t of

Corrections , 123 F.3d 855, 857 (5th Cir. 1997) (per curiam).

Thus, orders denying qualified immunity are immediately

appealable only if they are predicated on conclusions of

law, and not if a genuine i ssue of material fact

precludes summary judgment on the question of qualified

immunity. Stated another way, we have jurisdiction over

law-based denials of qualified immunity, but do not have

jurisdiction over a genuine-issue-of-fact-based denial of

qualified immunity.

Id. ; see Johnson

, 515 U.S. at 313, 115 S. Ct. at 2156 (holding that

district court’s summary judgment order denying qualified immunity

is not immediately appealable when the decision “determines only a

question of ‘evidence sufficiency,’ i.e., which facts a party may,

or may not, be able to prove at trial”). Therefore, if the

district court concludes that the summary judgment record raises a

genuine issue of material fact with respect to whether the defense

of qualified immunity is applicable, then that decision is not

immediately appealable under the co llateral order doctrine. S ee

Petta v. Rivera , 143 F.3d 895, 898 (5th Cir. 1998).

In this case, the district court’s summary judgment decision

addressed both qualified immunity and liability. The district

court’s denial of qualified immunity turned on its conclusion that

the alleged conduct of Hartnett and Mendoza violated Palmer’s

constitutional rights and was objectively unreasonable. To the

extent this determination involves a question of law, as opposed to

an assessment of the facts established by or inferable from the

evidence, we have jurisdiction to review the denial of defendant’s

motion for summary judgment on the basis of qualified immunity; but

on this interlocutory appeal we do not review in this connection7

the district court’s assessment of what facts are established by or

inferable from the evidence. Nor do we have jurisdiction to review

the district court’s grant of Palmer’s motion for summary judgment

holding that defendants are liable for violating his constitutional

rights and are not entitled to qualified immunity.

B

T he doctrine of qualified immunity shields a state of ficial

from personal liability for damages under 42 U.S.C. § 1983 when the

official’s exerci se of discretionary authority results in a

violation of an individual’s federal constitutional or statut ory

rights, “unless at the time and under the circumstances of the

challenged conduct all reasonabl e officials would have realized

that it was proscribed by the feder al law on which the suit is

founded.” Pierce v. Smith , 117 F.3d 866, 871 (5th Cir. 1997). The

bifurcated test for qualified immunity asks whether the plaintiff

has alleged a violation of a clearly established right and, if so,

whether the defendant’s conduct was objectively unreasonable. S ee

Hare v. City of Corinth

, 135 F.2 d 320, 325 (5th Cir. 1998).

Currently applicable constitutional standards govern the first

prong of the analysis. S ee id. at 326. The second prong involves

“two separate inquiries: whether the allegedly violated

constitutional rights were clearly established at the time of the

incident; and, if so, whether the conduct of the defendants was

objectively unreasonable in the l ight of that then clearly

established law.” Id. at 326 (citations omitted).

Palmer argues that Hartnett and Mendoza violated his rights8

under the Eighth Amendment whereas the appellants argue t hat the

conditions Palmer experienced did not rise to the level of a

constitutional violation. Although the constitution “does not

mandate comfortable prisons,” Rhodes v. Chapman

, 452 U.S. 337, 349,

101 S. Ct. 2392, 2400 (1981), conditions of confinement “must not

involve the wanton and unnecessary infliction of pain.” I d. at

347, 101 S. Ct. at 2399. The Eighth Amendment’s prohibition

against cruel and unusual punishment requires prison officials to

provide “humane conditions of confinement,” ensuring that “inmates

receive adequate food, clothing, shelter, and medical care

. . . .”

Farmer v. Brennan

, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994).

The Supreme Court has held that an inmate must satisfy two

requirements to demonstrate that a prison official has violated the

Eighth Amendment. “First, the deprivation alleged must be,

objectively, ‘suf ficiently serious’; a prison official’s act or

omission must result in the denia l of ‘the minimal civilized

measure of life’s necessitie s.’” I d. at 834, 114 S. Ct. at 1977

(citations omitted). Second, “a prison official must have a

‘sufficiently culpable state of mind’” Id.

, 114 S. Ct. at 1977. In

prison conditions cases, that state of mind is one of deliberate

indiffere nce to inmate health or safety. S ee id.

, 114 S. Ct. at

1977. “To establish deliberate indifference . . ., the prisoner

must show that the defendants (1) were aware of facts from which an

inference of an excessive risk to the prisoner’s health or safety

could be drawn and (2) th at they actually drew an inference that

such potential for harm existed.” B radley v. Puckett

, 157 F.3d9

1022, 1025 (5th Cir. 1998).

Palmer claims that his overnight outdoor confinement without

shelter, protective clothing, or acceptable means to dispose of his

bodily waste deprived him of the “minimal civilized measures of

life’s necessities.” The appellants attempt to downplay the degree

of the claimed deprivation by deconstructing the elements of the

sleep-out and focusing on its relatively brief duration. We agree

that some aspects of the incident do not evince a constitutional

violation. That Palmer may have missed one meal and may have

endured irritating insect bites without immediate medical attention

does not rise to the level of a cognizable constitutional injury.

See Estelle v. Gamble

, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976)

(ho l ding that deliberate indifference to a prisoner’s serious

medical needs constitutes an Eighth Amendment violation); Talib v.

Gilley

, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (“Missing a mere one

out of every nine meals is hardly more than that missed by many

working citizens over the sa me period.”); G reen v. Ferrell

, 801

F.2d 765, 770-71(5th Cir. 1986) (finding that the provision of only

two nutritionally adequate meals daily does not violate the Eighth

Amendment). Other deprivations resulting from the challenged

conduct, however, are far more serious.

This court has observed that “certain prison conditions [are]

so ‘base, inh uman and barbaric’ that they violate the Eighth

Amendment.” N ovak v. Beto

, 453 F.2d 661, 665 (5th Cir. 1971). One

such condition is “the deprivation of basic elements of hygiene.”

Id. Palmer claims that he was not allowed to use a bathroom during10

the seventeen-hour outdoor confinement and was instead to ld that

his only option was to urinat e and defecate in the confined area

that he shared with forty-eight other inmates. The appellants

suggest that Palmer’s experience was no different than that of many

overnight campers and, relying on Smith v. Copeland

, 87 F.3d 265

(8th Cir. 1996), argue that the lack of toilet facilities did not

implicate constitutional concerns. In Smith , a pretrial detainee

claimed that he was forced to endure raw sewage because an

overflowed toilet in his cell was not cleaned for four days. The

detainee did not dispute that he declined to flush the toilet or

clean the mess. The S mith court acknowledged that exposure to raw

sewage may constitute cruel and unusual punishment in some cases,

but concluded that the totality of the circumstances in that case

did not amount to a constitutional violation. I d. at 268-69.

However persuasive Smith may be, it is unlike the case before us,

which involves a complete deprivation of toilets for scores of

inmates confi ned in the same small area. We find that these

conditions constitute a “deprivation of basic elements of hygiene.”

Also troubling is Palmer’s claim that he was forced to

withstand strong winds and cold without the protection afforded by

jackets or blankets. “Prisoners have a right to protection from

extreme cold.” D ixon v. Godinez

, 114 F.3d 640, 6 42 (7th Cir.

1997); see Murphy v. Walker , 51 F.3d 714, 721 (7th Cir. 1995)

(noting that a pretrial detainee has a right to adequate heat and

shelter); Beck v. Lynaugh

, 842 F.2d 759, 761 (5th Cir. 1988)

(holding that a prisoner’s allegations of exposure to the elements11

during winter months stated a cause of action under the Eighth

Amendment); see also Bienvenu v. Beauregard Parish Police Jury

, 705

F.2d 1457, 1460 (5th Cir. 1983) (per curiam) (finding that a

plaintiff’s statements that the defendant “intentionally subjected

him to a cold, rainy, roa ch-infested facility and furnished him

with inoperative scum-encrusted washing and toilet facilities

sufficiently alleges a cause of action cognizable under 42 U.S.C.

§ 1983 and the eighth and fourteenth amendments”). Palmer claims

that he and the other inmates were reduced to digging in the dirt

to construct loose earthen walls as feeble wind barriers while

their guards warmed themselves with jackets, a fire, and car

heaters. Although the degree to which the temperature actually

fell is relevant to a conclusive determin ation, Palmer’s

description of the incident suggests that his exposure to the

elements may have risen to the level of a constitutional

deprivation.

As the appellants emphasize, the challenged conduct lasted

only seventeen hours. In addition to duration, however, we must

consider the totality of the specific circumstances that

constituted the conditions of Palmer’s confinement, with particular

regard for the manner in which some of those conditions had a

mutually enforcing effect. S ee Wilson v. Seiter

, 501 U.S. 294,

304, 111 S. Ct. 2321, 2327 (1991); cf. Dixon v. Godinez , 114 F.3d

640, 643 (7th Cir. 1997) (observing that “most succes sful Eighth

Amendment claims often involve allegations of cold in conjunction

with other serious problems”); McCray v. Burre ll , 516 F.2d 357,12

365-68 (4th Cir. 1975) (finding Eighth Amendment violatio n where

inmate was solitarily confined for forty-six hours in a cold cell

with no clothing or blankets, no running water or personal hygiene

items, and a toilet consisting of an excrement-encrusted hole in

the floor). We find that the totality of the specific

circumstances presented by Palmer’s claim--his overnight outdoor

confinement with no shelter, jacket, blanket, or source of heat as

the temperature dropped and the wind blew along with the total lack

of bathroom facilities for forty-nine inmates sharing a small

bounded area--constituted a denial of “‘the minimal civilized

measure of life’s necessities.’” Farmer v. Brennan , 511 U.S. 825,

834, 114 S. Ct. 1970, 1977 (1994) (citation omitted).

Having demonstrated a sufficiently serious deprivation, Palmer

must establ ish that Hartnett and Mendoza acted with deliberate

indifference to his health or safety. According to Palmer,

Hartnett ordered the sleep-out and both he and Mendoza were present

during the evening. Palmer also asserts that, on the morning of

October 30, Warden Hartnett t hreatened another night outdoors to

“freeze again” if they refused to work. This summary judgment

evidence suffices for the requisite showing of deliberate

indifference on the part of the appellants. Thus, for purposes of

the qualified immunity analysis, Palmer has demonstrated a

violation of his clearly established rights under the Eighth

Amendment.

The appellants co ntend that even if their conduct violated

Palmer’s constitutional rights, they did not act unreasonably in13

light of the circumstances and the law as established at the time

of the sleep-out. We disagree. When this incident occurred, an

inmate’s right to “humane conditions of confinement” and the prison

official’s concomitant duty to “ensure that inma tes receive

adequate food, clothing, shelter, and medical care . . . .” was

w ell-established. S ee, e.g., id.

, 114 S. Ct. at 1976 . More

specifically, this court had already made it clear that a prison

official may not subject inmates to significantly cold temperatures

or deprive them of the basic e lements of hygiene. S ee, e.g.

,

Bienvenu v. Beauregard Parish Police Jury

, 705 F.2d 1457 (5th Cir.

1983) (per curiam); Daigre v. Maggio, 719 F.2d 1311, 1312 (5th Cir.

1983) (“We concluded over a decade ago that the eighth amendment

forbids deprivation of the basic elements of hygiene.”); Novak v.

Beto

, 453 F.2d 661, 665 (5th Cir. 1971); cf. Chandler v. Baird

, 926

F.2d 1057, 1065-66 (11th Cir. 1991) (“[T]he right of a prisoner not

to be confined in a cell at so low a temperature as to cause severe

d iscomfort and in conditions lacking basic sanitation was well

established in 1986.”). We are confident that, given the law at

the time and t he circumstances of this case as found by the

district court, no reasonable prison official would have thought it

objectively acceptable to her d forty-nine inmates into a small

outdoor space, deprive them of any protection from excessive cold

and wind, and provide no sanitary means of disposing of their

bodil y waste for over seventeen hours. While this to a large

extent depends on just ho w low the temperature was and just what

the wind chill factor was and how such cold would affect those14

situated as were the prisoners, these are essentially factual

considerations that were at least implicitly determ ined by the

district court adversely to defendants’ motion for summary judgment

and are unreviewable on this interloc utory appeal. We therefore

hold that no error of law has been demonstrated in the denial of

defendants’ motion for summary judgment on the basis of qualified

immunity, and in that respect the denial of defendants’ motion is

AFFIRMED. To the extent that defendants challenge either the

district court’s assessment of the facts established by or

inferable from the evidence or the grant of summary judgment in

favor of Palmer on liability (inc luding qualified immunity), the

appeal is DISMISSED.

III.

Accordingly, we AFFIRM in p art; DISMISS the appeal in part;

and REMAND the cause for further proceedings.