from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-01830-RBJ)
Kathryn A. Starnella, Assistant Attorney General, Denver,
Colorado (Cynthia H. Coffman, Attorney General, with her on
the briefs), for Defendants-Appellants.
Elisabeth L. Owen, Prisoners' Justice League of Colorado
LLC, Denver, Colorado, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, Circuit
BACHARACH, Circuit Judge.
appeal grew out of a state prisoner's alleged deprivation
of outdoor exercise for two years and one month. The alleged
deprivation led the prisoner (Mr. Donnie Lowe) to sue two
senior prison officials, invoking 42 U.S.C. § 1983 and
alleging violation of the Eighth Amendment. The district
court declined to dismiss the personal liability claims
against the two officials, and they appeal.
sake of argument, we may assume a violation of the Eighth
Amendment. Even with this assumption, the two officials would
enjoy qualified immunity unless the denial of outdoor
exercise for two years and one month had violated a clearly
established constitutional right. In our view, the right was
not clearly established. Thus, we reverse.
Lowe moves to dismiss the appeal, arguing that we lack
appellate jurisdiction. We disagree and deny Mr. Lowe's
motion to dismiss.
the district court has not entered a final judgment, the
collateral-order doctrine creates appellate jurisdiction over
certain intermediate rulings on pure issues of law. See
Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). Denials of
qualified immunity ordinarily fall within the
collateral-order doctrine. Plumhoff v. Rickard, 134
S.Ct. 2012, 2019 (2014).
to Mr. Lowe, the collateral-order doctrine does not apply
because our issue of qualified immunity is fact intensive. We
disagree: We are reviewing the sufficiency of a complaint,
which involves a pure issue of law. See Iqbal, 556
U.S. at 674; see also Ortiz v. Jordan, 562 U.S. 180,
188 (2011) (stating that the inquiry regarding what is
"clearly established" entails a matter of law).
district court concluded that the alleged facts precluded
qualified immunity. Order at 7, Lowe v. Raemisch,
No. 15-cv-01830-RBJ (D. Colo. July 18, 2016) (Dkt. No. 35)
("I find that a reasonable official . . . almost
certainly did know (and Tenth Circuit cases and many other
cases clearly established) that, at the time of Mr.
Lowe's confinement, depriving him of outdoor exercise for
an extended period of time was likely a violation of his
constitutional rights."). The correctness of this
conclusion involves a pure question of law. See
Iqbal, 556 U.S. at 672 (stating that denial of a motion
to dismiss, which had been based on qualified immunity, was
immediately appealable). Thus, we have jurisdiction under the
issue of qualified immunity arose in district court, where
the court denied the motion to dismiss. For this ruling, we
engage in de novo review, viewing the complaint's
allegations in the light most favorable to Mr. Lowe.
Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir.
2012). Viewing the allegations in this light, we conclude
that the two officials are entitled to qualified immunity.
Qualified immunity protects all officials except those who
are plainly incompetent or knowingly violate the
is clearly established when a Supreme Court or Tenth Circuit
precedent is on point or the alleged right is clearly
established from case law in other circuits. Roska ex
rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir.
2003). The precedent is considered on point if it involves
"'materially similar conduct'" or
applies "'with obvious clarity'"
to the conduct at issue. Estate of Reat v.
Rodriguez, 824 F.3d 960, 964-65 (10th Cir. 2016)
(emphasis in Estate of Reat) (quoting Buck v.
City of Albuquerque, 549 F.3d 1269, 1290 (10th
Cir. 2008)), cert. Denied, __ U.S.__, 137 S.Ct. 1434
(2017). Because the prior case must involve materially
similar conduct or apply with obvious clarity, qualified
immunity generally protects all public officials except those
who are "'plainly incompetent or those who knowingly
violate the law.'" White v. Pauly, 137
S.Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (per curiam)).
The alleged deprivation of outdoor exercise for two years and
one month did not violate a clearly established
acknowledged the absence of any "doubt that total denial
of exercise for an extended period of time would constitute
cruel and unusual punishment prohibited by the Eighth
Amendment." Housley v. Dodson, 41 F.3d 597, 599
(10th Cir. 1994), abrogated on other grounds by Lewis
v.Casey, 518 U.S. 343 (1996), as
recognized in Tucker v. Graves, 107 F.3d 881, 1997 WL
100884, at *1 n.2 (10th Cir. Mar. 6, 1997) (unpublished).
Prison officials sometimes disallow exercise outside an
inmate's cell and sometimes disallow exercise outdoors
(while still permitting out-of-cell exercise). See
Apodaca v. Raemisch, No. 15-1454, slip. op. ...