Court tosses lawsuit over tear gas thrown into Utah prison rec yard that went into the ventilation system

Posted at 10:07 AM, Feb 10, 2018
and last updated 2018-02-10 12:07:51-05

SALT LAKE CITY — A federal appeals court has rejected a lawsuit over an incident where tear gas was lobbed into a prison recreation yard, only to go into the ventilation system of a nearby building.

While the three-judge panel of Denver’s 10th U.S. Circuit Court of Appeals called the incident “textbook negligence,” they ruled the officers at fault were protected by governmental immunity laws.

Timothy Redmond, representing a group of inmates, sued over the 2011 incident at the Olympus facility at the Point of the Mountain prison. An inmate had refused to return to his cell and walked into the recreation yard. Responding corrections officers contemplated using rubber bullets or a shield wall before deciding to use tear gas.

“But before doing so, [Officer Jason] Nicholes examined the recreation yard and looked for risks — he did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed [inmate James] Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless flipped off Nicholes and said ‘F*** you, fascist,'” Chief Judge Timothy Tymkovich wrote.

The officers lobbed tear gas into the recreation yard.

“The plan went smoothly except for a significant problem—the HVAC unit,” the judge wrote. “Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison.”

The botched plan led to the parts of the facility being evacuated, but Redmond and other inmates alleged officer Robert Powell told them: “If any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.”

Redmond claimed some inmates declined medical treatment they needed because of those comments. Powell declined to evacuate other parts of the Olympus facility.

The inmates sued alleging a violation of their Eighth Amendment constitutional rights. In the ruling, the 10th Circuit Court declined to find any reasonable juror could believe the officers intended to gas anyone besides Hill.

“Nicholes testified that he did not notice the HVAC unit before deploying the gas. And after deploying the gas, Powell exclaimed the ‘one thing we didn’t plan on is where is the intake air for this HVAC system.’ The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas—and required a large-scale evacuation of the prison,” Judge Tymkovitch wrote.

Read the full ruling here: