Qualified Immunity Divides: Ordering Officer Can Face Liability for 30‑Hour “Hot‑Shower” Dry‑Cell; Subordinates Protected When Orders Are Not Facially Outrageous (Burkle v. Patrick, 5th Cir. 2025)

Court: United States Court of Appeals for the Fifth Circuit

Date: March 28, 2025

Disposition: Affirmed in part; reversed and remanded in part

Note on precedential status: The panel designated this opinion as unpublished under 5th Cir. R. 47.5; it is not binding precedent except under the limited circumstances set forth in Rule 47.5.4.

Introduction

This appeal tests the limits of Eighth Amendment protections and qualified immunity in a “dry cell” contraband-watch context. Texas inmate Jonathan S. Burkle alleged that, after officials suspected he had swallowed contraband, he was confined for approximately 30 hours in a hot, poorly ventilated shower without food, drinking water, a toilet, or cleaning supplies; he vomited and defecated on the floor, passed out, and lay next to his waste. He sued multiple officers under 42 U.S.C. § 1983 for cruel and unusual punishment.

The district court granted summary judgment to all defendants. On appeal, a fractured panel issued a split result:

By one majority, qualified immunity was affirmed for four line officers (Snyder, Wheeler, Han, and Brooks), largely on a “following orders” rationale under Fifth Circuit law.
By a different majority, relying on Judge Douglas’s reasoning, the court reversed as to Major Anthony Patrick—the ordering officer—holding that genuine disputes of material fact and clearly established law precluded summary judgment for him.

Judge Jones would have affirmed across the board, emphasizing the short duration, purported availability of shower water, and the penological objective of preventing overdose and smuggling. Judge Haynes supplied the decisive votes: she agreed that the four subordinates were entitled to qualified immunity because they followed the major’s orders, but she joined Judge Douglas’s view that qualified immunity should be denied to the ordering officer. Judge Douglas would have reversed as to all defendants except two supervisors (Harvey and Altum) against whom there was no evidence of knowledge of the conditions or duration.

Summary of the Opinion

The panel’s judgment is twofold:

Affirmed as to Captain Harvey and Sergeant Altum (no evidence they knew of or directed the challenged conditions).
Affirmed as to Officers Snyder, Wheeler, Han, and Brooks: they are entitled to qualified immunity because they were following a superior’s order that was not “facially outrageous.”
Reversed and remanded as to Major Anthony Patrick (substituted by his estate representative): a majority concluded that, under clearly established Eighth Amendment law, a jury could find that ordering 30 hours of confinement in a hot, unsanitary shower without food, drinking water, a toilet, or medical relief amounted to an obvious deprivation of the minimal civilized measure of life’s necessities and deliberate indifference.

In short, only claims against the ordering officer proceed; all others are dismissed.

Analysis

1) Precedents Cited and Their Influence

The panel engaged a familiar Eighth Amendment framework and a robust qualified immunity doctrine, drawing on numerous Supreme Court and Fifth Circuit decisions.

Eighth Amendment fundamentals:

Farmer v. Brennan, 511 U.S. 825 (1994): Conditions claims require an objective showing of “sufficiently serious” deprivation and a subjective showing of deliberate indifference—actual awareness and disregard of a substantial risk of serious harm.
Wilson v. Seiter, 501 U.S. 294 (1991): Only deprivations denying the “minimal civilized measure of life’s necessities” are sufficiently grave.
Hudson v. McMillian, 503 U.S. 1 (1992): “Extreme” conditions are required.
Helling v. McKinney, 509 U.S. 25 (1993): Unconstitutional conditions may be shown by substantial risk of serious future harm—actual injury is not required.

Heat, sanitation, food, and the “totality” concept:

Gates v. Cook, 376 F.3d 323 (5th Cir. 2004): Recognized the obvious, substantial risk from extreme heat; affirmed orders requiring remedial measures (fans, ice water, showers).
Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015); Yates v. Collier, 868 F.3d 354 (5th Cir. 2017); Hinojosa v. Livingston, 807 F.3d 657 (5th Cir. 2015): Fifth Circuit line establishing that exposure to dangerously high temperatures without adequate mitigation can violate the Eighth Amendment.
Taylor v. Riojas, 592 U.S. 7 (2020): Six-day confinement in cells covered in feces and sewage was “particularly egregious,” an “obvious” Eighth Amendment violation; qualified immunity denied. While post‑dating the 2017 incident here, Taylor amplifies the “obviousness” principle originally recognized in Hope v. Pelzer, 536 U.S. 730 (2002).
Davis v. Scott, 157 F.3d 1003 (5th Cir. 1998): Three days in a dirty cell did not violate the Eighth Amendment where cleaning supplies were provided; distinguished in Taylor.
Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999): The “mutually enforcing effect” of multiple deprivations (no toilets, overnight exposure, no blankets, dropping temperatures) can together cross the constitutional line.
Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998): Eighth Amendment requires adequate food; the amount and duration of deprivation matter (abrogated in part on a different point by Garrett).
Cooper v. Lubbock County, 929 F.2d 1078 (5th Cir. 1991): Continuous deprivation of food can state a claim, even if done under a policy.

Qualified immunity:

Harlow v. Fitzgerald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S. 635 (1987); Malley v. Briggs, 475 U.S. 335 (1986): The doctrine protects all but the plainly incompetent or those who knowingly violate the law; the right must be clearly established such that its unlawfulness would be apparent.
Pearson v. Callahan, 555 U.S. 223 (2009): Courts have discretion to decide either prong first (violation and clearly established law).
Hope v. Pelzer, 536 U.S. 730 (2002): “Obvious” constitutional violations can provide “fair warning” even absent a case on all fours.

“Following orders” defense for subordinates:

Von Derhaar v. Watson, 109 F.4th 817 (5th Cir. 2024); Jacobs v. W. Feliciana Sheriff’s Dep’t, 228 F.3d 388 (5th Cir. 2000); Heaney v. Roberts, 846 F.3d 795 (5th Cir. 2017); Cope v. Cogdill, 3 F.4th 198 (5th Cir. 2021): An officer acting pursuant to a superior’s order is generally entitled to qualified immunity unless the order is “facially outrageous.”

Penological-purpose test:

Johnson v. California, 543 U.S. 499 (2005): The “penological interest” framework does not govern Eighth Amendment conditions claims; the correct test is deliberate indifference. The Fifth Circuit recently reaffirmed this in Garrett v. Lumpkin, 96 F.4th 896 (5th Cir. 2024).

2) The Court’s Legal Reasoning

A. Conditions-of-confinement: Objective and subjective components

Applying Farmer, the panel (through competing opinions) assessed both the objective severity of conditions and the defendants’ subjective state of mind:

Objective severity. Judge Jones emphasized duration (≈30 hours), uncertainty over the precise temperature inside the shower, and the availability of shower water as potentially mitigating heat and sanitation. She distinguished long-term heat cases and argued the conditions were less severe than in Davis.
Judge Douglas, whose analysis controls the remand as to Patrick, underscored that multiple deprivations—extreme heat without mitigation, denial of potable drinking water and food, lack of a toilet leading to exposure to one’s own waste, and ignored requests for medical attention—can have a “mutually enforcing effect” that deprives an inmate of life’s basic necessities. She noted that actual, lasting injury is not required (Helling), and relied on Gates, Ball, Yates, and Hinojosa to show that serious heat risks were clearly established by 2017. She rejected equating a hot, forceful shower stream with “drinking water,” especially where the water exacerbated heat and humidity.

B. Deliberate indifference

Ordering officer (Patrick). The controlling analysis concludes a jury could find that Patrick knew of and disregarded an excessive risk by ordering 30 hours in a hot shower without food, drinking water, a toilet, or cleaning supplies, while allegedly ignoring pleas for relief and later admitting he “forgot” about the detainee. TDCJ disciplinary findings (that basic entitlements were denied and dry cell procedures were violated) support a jury finding of awareness of obvious risk. Under Taylor and Gates, exposure to human waste and extreme heat can present obvious risks; Hope allows a finding that the risk was so apparent that no further case on point is necessary.
Subordinate officers (Snyder, Wheeler, Han, Brooks). As to these defendants, a different majority (Jones + Haynes) concluded they were entitled to qualified immunity because they followed a superior’s orders that were not “facially outrageous.” Judge Jones emphasized that the subordinates could reasonably understand the orders as part of a contraband-recovery protocol, and the existence of a functioning water fixture lessened obviousness. Judge Douglas disagreed, arguing that orders to deny food and drinking water contravened TDCJ dry-cell policy and were facially outrageous, but her view did not prevail on this point.

C. Qualified immunity (clearly established law)

For Patrick: The controlling view holds that, by 2017, it was clearly established that inmates may not be subjected to dangerously high temperatures without mitigation (Gates, Ball, Hinojosa, Yates), forced to live amid human waste (Taylor’s recognition, read together with Palmer and related authority), or denied adequate food and drinking water (Green, Talib, Cooper), and that courts look to the combined effects of multiple deprivations (Palmer). Hope confirms that “obvious” violations can defeat qualified immunity even without a case squarely on point.
For the subordinates: The “following orders” line of Fifth Circuit cases (Von Derhaar, Jacobs, Heaney, Cope)—as applied by Judge Jones and joined by Judge Haynes—supplied the clearly established principle that subordinates are shielded unless the order was facially outrageous. The majority concluded that threshold was not met here, so the subordinates were immune.

D. Penological purpose is not a defense to conditions claims

Judge Douglas corrected the legal lens: under Johnson v. California and the Fifth Circuit’s recent Garrett, the “penological-interest” test does not apply to Eighth Amendment conditions-of-confinement analysis. The proper inquiry is the Farmer deliberate-indifference standard; a laudable goal (preventing contraband overdoses) does not itself negate unconstitutional conditions.

3) Impact and Practical Implications

For supervisory decision-makers: The ordering official can face personal liability even when subordinates are immune. The decision flags acute risk in using non–dry-cell spaces (like hot, unventilated showers) and deviating from dry-cell policies that require meals, sufficient drinking water, bedpans, and close monitoring. Supervisors who authorize conditions with obvious risks—heat exposure, lack of sanitation, deprivation of food/water, denial of medical attention—may not obtain qualified immunity.

For line officers: The Fifth Circuit’s “following orders unless facially outrageous” protection remains potent. Officers who carry out a superior’s direction will ordinarily be immune unless an order is so obviously unlawful that no reasonable officer could think it permissible. The panel majority found that threshold unmet here for the four subordinates—though the dissent forcefully argued otherwise.

On heat litigation: Even relatively short durations (≈30 hours) can support an Eighth Amendment claim when multiple severe deprivations mutually reinforce one another, especially in heat-risk contexts historically recognized as dangerous in this circuit. Facilities should implement and document heat mitigation measures (fans, ice/cold water, showers with safe temperatures, medical checks), and honor documented heat restrictions.

Policy compliance as fair warning: While violations of internal policy do not themselves create constitutional liability, they can “bolster” fair notice in the clearly established analysis when aligned with governing precedent (see Banks v. Herbrich, relying on Hope and Groh). Here, TDCJ’s dry-cell policy requiring meals, sufficient drinking water, and a bedpan was a significant factor.

Damages vs. injunctive relief cases: The panel rejects any bright-line rule that injunctive-relief cases are inapposite to constitutional-violation analysis in damages suits. The existence of a constitutional violation is distinct from damages issues; injunctive cases remain instructive on what the Eighth Amendment forbids.

Unpublished status: The opinion is nonprecedential, but it synthesizes and applies published authority in a way likely to be persuasive in similar cases, especially on (i) the separation between supervisory and subordinate liability; (ii) the misfit of penological-purpose argument in conditions claims; and (iii) the continued salience of heat, sanitation, and sustenance as “basic entitlements” in contraband-watch scenarios.

Complex Concepts Simplified

Section 1983: A federal cause of action allowing individuals to sue state actors for violating constitutional rights.
Conditions-of-confinement claim: Challenges the overall living conditions (heat, sanitation, food, water, medical access), not a single-use-of-force event.
Objective vs. subjective components (Farmer): The conditions must be seriously harmful (objective) and the official must actually know of and disregard a substantial risk (subjective deliberate indifference).
Qualified immunity (QI): Shields officials from damages liability unless (1) the facts show a constitutional violation and (2) the right was clearly established such that a reasonable official would know the conduct was unlawful. “Obvious” cases can satisfy prong two without a factually identical precedent.
“Following orders” QI: In the Fifth Circuit, subordinates who follow superior orders are generally immune unless the order is “facially outrageous”—so obviously unlawful that any reasonable officer would refuse to carry it out.
Dry cell: A controlled setting to observe whether a prisoner excretes contraband. Policies typically require cutting off water, providing meals and drinking water, a bedpan, frequent checks, and a limited duration.
Penological-interest test: A rational-relationship analysis used for some prison regulations is not the test for Eighth Amendment conditions claims; the correct inquiry is deliberate indifference to serious risks.

Key Takeaways

Supervisors can face personal liability even when subordinates are immune. Here, only the ordering officer (Major Patrick) faces remand because a jury could find deliberate indifference and the law was clearly established in 2017.
Multiple short-term deprivations can add up. Thirty hours in a hot shower without food, drinking water, or a toilet, with exposure to one’s own waste and ignored pleas for help, may cross the Eighth Amendment line when considered in totality.
Heat remains a constitutional flashpoint in the Fifth Circuit. Prison officials must mitigate obvious heat risks; relying on hot shower water as “drinking water” is not a constitutionally adequate response.
Internal policy matters for notice. While not dispositive, policies requiring meals, drinking water, and sanitation in dry-cell settings can provide fair warning that contrary orders are unlawful.
Penological goals do not excuse unconstitutional conditions. The deliberate-indifference standard—not a penological-interest test—governs Eighth Amendment conditions claims.
Subordinate officers retain a robust “following orders” shield. Unless the order is facially outrageous, line officers will typically be immune.

Conclusion

Burkle v. Patrick delivers a nuanced, two-track message. First, it underscores that a supervisor who authorizes a contraband-watch regime that combines heat exposure, denial of basic sustenance, and unsanitary conditions over a sustained period can be denied qualified immunity under clearly established Eighth Amendment law. Second, it reaffirms the Fifth Circuit’s protective stance toward subordinates who implement a superior’s orders that are not facially outrageous, even in a difficult, fast-evolving correctional context. Although unpublished, the opinion synthesizes and applies longstanding Supreme Court and Fifth Circuit principles with practical significance for prisons: adhere to dry-cell policies scrupulously, mitigate heat risk, ensure access to adequate food and drinking water, provide sanitation and medical care, and document compliance. Supervisory decision-makers who deviate from these basic entitlements do so at substantial litigation risk.