Skelton v. Bruce, et al

Filing 920101103

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

N o v e m b e r 3, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E T E N T H CIRCUIT
C l e r k of Court

J O H N A. SKELTON, P l a i n t i f f - Appellant, v. L O U I S BRUCE, Warden, Hutchinson C o r r e c t i o n a l Facility; MARJORIE V A N H O O S E , Unit Manager, H u t c h i n s o n Correctional Facility; D E B R A MCCONAGHY, Unit Team M e mb e r , Hutchinson Correctional F a c i l i t y ; MISTY KROEKER, Unit T e a m Member, Hutchinson C o r r e c t i o n a l Facility; THOMAS M A C K , Unit Team Member, H u t c h i n s o n Correctional Facility; R U D Y RODRIGUEZ, Unit Team M e mb e r , Hutchinson Correctional F a c i l i t y ; ANTHONY MCELROY, Unit T e a m Member, Hutchinson C o r r e c t i o n a l Facility; JASON H A R D I N G , Sargent, Security Force of S e g r e g a t i o n Units, Hutchinson C o r r e c t i o n a l Facility, D e f e n d a n t s - Appellees. N o . 09-3348 ( D . C . No. 5:06-CV-03045-MLB) ( D . Kan.)

O R D E R AND JUDGMENT *

This order and judgment is not binding precedent, except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th C i r . R. 32.1.

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B e f o r e KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and G O R S U C H , Circuit Judge. I n this conditions of confinement case, Plaintiff-Appellant John Skelton a p p e a l s from an order of the district court granting summary judgment in favor of D e f e n d a n t s - A p p e l l e e s corrections officials. This court has jurisdiction pursuant t o 28 U.S.C. § 1291, and we affirm.

Background M r . Skelton was at all times relevant to this case an inmate at Hutchinson C o r r e c t i o n a l Facility ("HCF") in Hutchinson, Kansas. 1 Supp. R., Amended P r e t r i a l Order, Doc. 121 ¶ 4(a)(1). All Defendants were employed by HCF. Specifically, Defendant Louis Bruce was the warden of HCF. Id. ¶ 4(a)(2). Defendant Misti Kroeker was a Unit Team Counselor II assigned to A Cellhouse. Ex. E, Kroeker Affidavit, Doc. 127-5 at 1. Defendant Marge VanHoose was the U n i t Team Manager assigned to A Cellhouse. Ex. C, VanHoose Affidavit, Doc. 1 2 7 - 3 at 1. Defendant Anthony McElroy was a Unit Team Counselor in the I n t e n s i v e Management Unit in A-3 Cellhouse. Ex. HH, McConaghy Deposition, D o c . 127-32 at 33. M r . Skelton was housed in the segregation unit at HCF in A Cellhouse from N o v e mb e r 24, 2003 until March 24, 2004 and from July 24, 2005 until November 4 , 2005. 1 Supp. R., Amended Pretrial Order, Doc 121 ¶ 4(a)(5). He is currently
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h o u s e d at a different facility. Ex. A, Skelton Deposition, Doc. 127-2 at 146. Mr. S k e l t o n filed several grievances concerning the conditions of confinement while h e was in the segregation unit. On February 25, 2004, he filed a grievance c o mp l a i n i n g about the cold temperature in his cell. Ex. J., Grievance B A 0 0 0 1 1 6 2 8 , Doc. 127-9 at 2-4. On March 16, 2004, he filed a grievance c o mp l a i n i n g about the cold air and water temperatures in the showers and the use o f fan vents by officers while inmates showered. Ex. K, Grievance BA 00011668, D o c . 127-10 at 3-5. On March 21, 2004, he filed a grievance complaining that the o u t d o o r segregation exercise yard was not covered and that inmates were not g i v e n gloves or rain gear. Ex. L, Doc. 127-11, Grievance BA00011691 at 3-7. Defendant Kroeker denied all three grievances, and Defendant Bruce concurred w i t h her decisions. Ex. J., Grievance BA00011628, Doc. 127-9 at 1, 5; Ex. K, G r i e v a n c e BA 00011668, Doc. 127-10 at 1, 6; Ex. L, Doc. 127-11, Grievance B A 0 0 0 1 1 6 9 1 at 1, 8-9. O n February 7, 2006, Mr. Skelton filed a pro se civil rights action in K a n s a s federal district court against several HCF employees alleging violations of h i s Eighth Amendment rights. 1 R. Doc. 1. Counsel was appointed on January 2 4 , 2008, 2 R. Doc. 93, and Defendants moved for summary judgment on F e b r u a r y 20, 2009. 2 R. Doc. 126. The district court granted Defendants' motion f o r summary judgment on November 12, 2009. 3 R. Doc. 140. On appeal, Mr. Skelton maintains that the cold temperature in his cell, the
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c o l d air and water and use of fans in the showers, and lack of appropriate clothing a n d shelter in the outdoor exercise area violated his Eighth Amendment rights. 1 Specifically, Mr. Skelton alleges that Defendants Bruce and VanHoose violated h i s Eighth Amendment rights "by creating, allowing to be created, implementing, a n d / o r allowing to be implemented rules, regulations, policies, practices, p r o c e d u r e s , patterns, decisions, instructions, orders, and customs regarding e x e r c i s e for segregation inmates at HCF (Count 1); regarding the temperature in t h e intensive management unit at HCF (Count 5); [and] regarding the temperature i n the segregation unit at HCF (Count 6)." 1 Supp. R., Amended Pretrial Order, D o c . 121 ¶ 6(a)(2)(a) & (b). In addition, he alleges that Defendant Kroeker v i o l a t e d his Eighth Amendment rights "by being deliberately indifferent to p l a i n t i f f 's health or safety regarding air and water temperatures in the showers in t h e cells of the intensive management unit at HCF (Count 5); regarding air t e mp e r a t u r e s of the intensive management unit at HCF (Count 6); and regarding e x e r c i s e opportunities for inmates in the segregation unit at HCF (Count 8)." Id. ¶ 6(a)(2)(c). 2 Mr. Skelton originally included additional claims, but the only claims on a p p e a l concern the cold cell temperature, the shower conditions, and the lack of c l o t h i n g and covering for the segregation yard. Although Defendant McElroy has not been formally dropped as a d e f e n d a n t , the claims against him pertained to Mr. Skelton's complaints about s o c k supply, which have been dropped. See 1 Supp. R., Amended Pretrial Order, D o c . 121 ¶ 6(a)(2)(d) (describing allegations against Defendant McElroy); Aplt. R e p l y Br. at 23-24 (explaining decision to drop claims regarding socks).
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M r . Skelton seeks nominal damages, attorney's fees, costs, and injunctive r e l i e f requiring HCF to maintain air and water temperature at a certain range in t h e segregation units at HCF; provide adequate and warm clothing to inmates i n c l u d i n g hats, gloves, thermal underwear, and hooded sweatshirts to those using t h e outdoor exercise area; and construct a partial roof over the outdoor exercise a r e a . See Aplt. Br. at 16.

Discussion T h i s court reviews orders granting summary judgment de novo. See H o w a r d v. Waide, 534 F.3d 1227, 1235 (10th Cir. 2008). Summary judgment is a p p r o p r i a t e where the "pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and t h a t the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 ( c ) ( 2 ) . In reviewing an order of summary judgment, we "examine the record a n d all reasonable inferences that might be drawn from it in the light most f a v o r a b l e to the non-moving party." T-Mobile Cent., LLC v. Unified Gov't of W y a n d o t t e Cnty., 546 F.3d 1299, 1306 (10th Cir. 2008) (quotation marks and c i t a t i o n s omitted). "Where the record taken as a whole could not lead a rational t r i e r of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ( q u o t a t i o n marks and citation omitted).
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M r . Skelton brings his claims under section 1983, alleging Eighth A me n d me n t violations based on the conditions of his confinement. "To prevail o n a claim for damages for a constitutional violation pursuant to 42 U.S.C. § 1983, a plaintiff must establish the defendant acted under color of state law and c a u s e d or contributed to the alleged violation." Jenkins v. Wood, 81 F.3d 988, 9 9 4 (10th Cir. 1996) (citation omitted). In an Eighth Amendment conditions of c o n f i n e me n t claim, a plaintiff must show an objective and subjective component. "First, the deprivation alleged must be, objectively, sufficiently serious . . . ." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation marks and citations o mi t t e d ) . Second, the prison official's "state of mind [must be] one of deliberate i n d i f f e r e n c e to inmate health or safety." Id. (quotation marks and citations o mi t t e d ) . Regarding the objective component, the Eighth Amendment does not r e q u i r e comfortable prisons at the expense of management prerogative, and c o n d i t i o n s may be restrictive or even harsh. See Barney v. Pulsipher, 143 F.3d 1 2 9 9 , 1311 (10th Cir. 1998) (citing Rhodes v. Chapman, 452 U.S. 337, 347, 349 ( 1 9 8 1 ) ) . Still, prison officials must provide "`the minimal civilized measure of l i f e ' s necessities'" based upon contemporary standards. Id. at 1310 (quoting W i l s o n v. Seiter, 501 U.S. 294, 298 (1991)). Against that backdrop, the Eighth A me n d me n t requires that a state "provide [an inmate] reasonably adequate v e n t i l a t i o n , sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold
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w a t e r , light, heat, plumbing)." Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1 9 8 0 ) , cert. denied, 450 U.S. 1041 (1981) (citations omitted). To prove an u n c o n s t i t u t i o n a l deprivation, "a prisoner must show that conditions were more t h a n uncomfortable, and indeed rose to the level of `conditions posing a s u b s t a n t i a l risk of serious harm' to inmate health or safety." DeSpain v. Uphoff, 2 6 4 F.3d 965, 973 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834). Whether t h e r e is a substantial risk of serious harm depends on "the particular facts of each s i t u a t i o n ; the circumstances, nature, and duration of the challenged conditions mu s t be carefully considered." Id. at 974 (quotation marks and citations omitted). "[T]he length of exposure to the conditions is often of prime importance." Id. T h e subjective component of an Eighth Amendment conditions of c o n f i n e me n t claim is not satisfied "unless the official knows of and disregards an e x c e s s i v e risk to inmate health or safety; the official must both be aware of facts f r o m which the inference could be drawn that a substantial risk of serious harm e x i s t s , and he must also draw the inference." Farmer, 511 U.S. at 837. "Prison o f f i c i a l s who actually knew of a substantial risk to inmate health or safety may be f o u n d free from liability if they responded reasonably to the risk, even if the harm u l t i ma t e l y was not averted." Id. at 844. With this framework in mind, we address M r . Skelton's three claims. 1. Cell Temperature I n his first grievance, Mr. Skelton complained that from November 24,
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2 0 0 3 to December 15, 2003 and January 28, 2004 to February 25, 2004, he s u b j e c t i v e l y believed that the temperature in his cell ranged from "40 degrees to 6 5 degrees," and at night, it "dropped to an almost unbearable low." Ex. J., G r i e v a n c e BA00011628, Doc. 127-9 at 3. In his December 22, 2008 deposition, h e stated that based on "subjective experience," the segregation cells was kept 10 t o 20 degrees cooler than the population cells and that an officer on duty agreed w i t h him that the temperature was cold but could not be changed because the t e mp e r a t u r e was preset. Ex. A, Skelton Deposition, Doc. 127 at 41:3-11, 42:2-18. Later in his deposition, he stated that he thought the temperature was 20 or 30 d e g r e e s . Id. at 46:5-6. He also stated that "I'm not saying that it was real cold e v e r y day, but there would be large segments of time where it would be cold." Id. a t 47:17-23. He assumed the cold conditions were based on a heater malfunction o r a broken window. Id. O n March 1, 2004, Defendant Kroeker denied the grievance after the ma i n t e n a n c e staff told her that the preset temperature was 68 degrees and that at 1 0 A.M. on February 25, the temperature was 70 degrees on the south side of the c e l l h o u s e and 67.5 degrees on the north side. Ex. J., Grievance BA00011628, D o c . 127-9 at 5. Defendant Bruce concurred with the decision. Id. at 1. In his d e p o s i t i o n , Mr. Skelton testified that he had requested temperature checks for v a r i o u s times during the day but that Defendant Kroeker "took one temperature c h e c k during the day at a time when I know that they have the heaters kicked on."
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E x . A, Skelton Deposition, Doc 127 at 44:9-18. In an affidavit, Kroeker stated t h a t the maintenance department kept a log of temperatures in the cellhouses, but h a d lost that information. Ex. E, Doc. 127-5, Kroeker Affidavit at 1. Mr. Skelton alleges that Defendants Bruce and VanHoose violated his E i g h t h Amendment rights by creating policies that kept the cell temperatures too l o w and that Defendant Kroeker violated his Eighth Amendment rights by being d e l i b e r a t e l y indifferent to his health and safety. 1 R., Amended Pretrial Order, D o c . 121 ¶ 6(a)(2)(a)-(c). The district court held that Mr. Skelton provided no e v i d e n c e to support his claim regarding the cold cell temperature. 3 R., Doc. 140 a t 12. A n allegation of inadequate heating may amount to a constitutional v i o l a t i o n , see Ramos, 639 F.2d at 568, but we must consider the severity of the t e mp e r a t u r e , its duration, and whether the inmate has adequate alternatives to p r o t e c t himself from the cold, along with other prison conditions. See Dixon v. G o d i n e z , 114 F.3d 640, 644 (7th Cir. 1997); see also Wilson, 501 U.S. at 304 ( n o t i n g that "a low cell temperature at night combined with a failure to issue b l a n k e t s " may establish an Eighth Amendment violation); Mitchell v. Maynard, 8 0 F.3d 1433, 1443 (10th Cir. 1996) (finding actionable Eighth Amendment claim w h e r e inmate alleged lack of heat, lack of bedding and clothing, deprivation of e x e r c i s e for a long period of time, lack of hot water, denial of toilet paper, r e mo v a l of prescription eyeglasses, and lack of adequate ventilation); Dixon, 114
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F . 3 d at 643 ("It is true that most successful Eighth Amendment claims often i n v o l v e allegations of cold in conjunction with other serious problems."). Here, w e cannot agree with the district court that "no evidence" supports the cold cell c l a i m. As discussed above, Mr. Skelton alleged cold cell temperatures within a r a n g e that certainly could be problematic for an extended period of time. At the s a me time, and as the district court noted, Mr. Skelton has not claimed that he w a s deprived of a blanket or clothing in his cell. 3 3 R., Doc. 140 at 13. Indeed, h e seemed to take the position in his grievance that the cell should be warm e n o u g h as to not require a blanket. See Ex. J., Grievance BA00011628, Doc. 1279 at 3 ("[I]t is ridiculous that inmates cannot move about their cell without w e a r i n g a coat or blanket."). We agree with the Seventh Circuit that the fact that i n ma t e s need to bundle up in a coat and blanket does not necessarily mean that t h e prison conditions are unconstitutional. See Dixon, 114 F.3d at 644 ("[J]ust b e c a u s e low temperature forces a prisoner to bundle up indoors during the winter d o e s not mean that prison conditions violate the Eighth Amendment."). S t i l l , the Dixon court held that there was a genuine issue of material fact w h e r e the inmate complained that ice persistently formed on the walls of his cell f o r several winters and the extreme cold made it impossible to do simple tasks, In his deposition, Mr. Skelton claimed that "[t]echnically, you are s u p p o s e d to have two [blankets] during the wintertime, but at that time I was only a b l e to get one." Ex. A, Doc. 127-1 at 46:24-47:1. He claimed that he requested a second blanket, but he never made a formal request for one and never filed a g r i e v a n c e about this. See id. at 47:9-12.
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s u c h as writing a letter or doing legal work. See 114 F.3d at 644; see also Lewis v . Lane, 816 F.2d 1165, 1171 (7th Cir. 1987) (finding genuine issue of material f a c t where prison inmate claimed that cell temperatures fell between 52 and 54 d e g r e e s even though prison officials maintained the temperature was set to a r a n g e of 68 to 72 degrees). W e need not decide whether Mr. Skelton has produced sufficient evidence t o preclude summary judgment on the objective prong of the Eighth Amendment, b e c a u s e even assuming he has, we hold that he has not produced sufficient e v i d e n c e for a rational jury to hold that the Defendants were deliberately i n d i f f e r e n t to his health or safety. Under Farmer, prison officials are free from l i a b i l i t y if they respond reasonably to the risk to inmates. See 511 U.S. at 844. Defendant Kroeker responded to Mr. Skelton's grievance by checking the t e mp e r a t u r e with maintenance and confirming that the heater had been set to 68 d e g r e e s . While we recognize that Mr. Skelton complains of nighttime t e mp e r a t u r e drops and that a single temperature check was performed during the d a y , we will not hold prison officials liable for what would at most amount to me r e negligence. See id. at 835. Mr. Skelton's allegation that the temperature c h e c k was a sham is pure speculation and does not raise a genuine issue of ma t e r i a l fact that Defendant Kroeker acted with deliberate indifference. Mr. Skelton contends that the cold conditions in his cell were caused by p o l i c i e s set by Defendants Bruce and VanHoose. The HCF regulations, however,
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s t a t e that the cell temperature is to be set at 68 degrees during winter. Ex. FF, D o c 127-30 at 2. Mr. Skelton has failed to raise a genuine issue of material fact a s to whether Defendants Bruce and VanHoose acted with deliberate indifference. 2. Shower Conditions I n his second grievance, Mr. Skelton complained about the cold air and w a t e r temperatures in the showers and the use of fan vents as punishment. Ex. K, D o c . 127-10, Grievance BA 00011668 at 2-5. Specifically, Mr. Skelton argued t h a t the air temperature was 68 degrees, the water temperature was "barely above b o d y temperature," and the fan created a draft in the showers that "caused severe d i s t r e s s from the cold and was enough to cause a hypothermic reaction in [his] b o d y temperature." Id. at 4. Defendant Kroeker testified that officers frequently u s e d fans to clear steam in the showers for security purposes and to control the g r o w t h of mold in the showers. Ex. E, Doc. 127-5, Kroeker Affidavit at 2. Mr. S k e l t o n alleged that on March 16, there was no steam and that Officer Curtis ( w h o is not a defendant here) maliciously used the fan as "an inmate management t o o l , knowing that it causes pain and detriment." Ex. K, Doc. 127-10, Grievance B A 00011668 at 5. In an affidavit, Mr. Skelton also stated that "[t]he use of fans i n the shower area was never a necessary security precaution in order to remove s t e a m and provide a line of sight for guards overseeing the area. In view of the w a t e r temperature, steam never became an issue." Ex. NN, Skelton Affidavit, D o c . 131-1 at 3. Mr. Skelton admitted that the incident with Officer Curtis was
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" t h e only time that I felt that [the fan] was being used maliciously" and that "[t]he o t h e r times, the other officers I'm sure were under some sort of directive, as later l e a r n e d by the unit team that the fans were to be used to prevent mold . . . ." Ex. A , Skelton Deposition, Doc. 127-1 at 36:12-16. In his grievance, he requested t h a t the officers be trained so that they would not use the fans as punishment. Ex. K , Doc. 127-10, Grievance BA 00011668 at 5. In his deposition, officer John Montoya stated that "[i]t seemed like [the i n ma t e s ] always complained about the water. That was an ongoing problem." 3 R . , Ex. RR, Doc. 131-5 at 24:13-14. In addition, he stated that corrective actions t o increase the heat were not always taken because of "the money crunch." Id. at 26:1-11. Noting that the water temperature had been raised on March 11 and that the f a n s were used to address steam and humidity issues, Defendant Kroeker denied t h e grievance and found no reason to train the officers. Ex. K, Doc. 127-10, G r i e v a n c e BA 00011668 at 6. Defendant Bruce concurred. Id. at 1. HCF policy r e q u i r e s that showers be maintained at 110 degrees. Ex. FF, Doc. 127-30 at 2. Defendant Kroeker stated, however, that "the water temperatures do vary s o me w h a t when the devices that mix hot and cold water do not function as d e s i g n e d . " Ex. E, Doc 127-5, Kroeker Affidavit at 2. She also stated that t e mp e r a t u r e s in the shower area were never taken. 3 R., Ex. VV, Doc. 131-8 at 50:3-19.
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M r . Skelton contends that Defendants Bruce and VanHoose violated his E i g h t h Amendment rights by creating policies regarding the air and water t e mp e r a t u r e s in the shower and that Defendant Kroeker violated his Eighth A me n d me n t rights by being deliberately indifferent to his health and safety in the s h o w e r . 1 R., Amended Pretrial Order, Doc. 121 ¶ 6(a)(2)(a)-(c). The district c o u r t held that the facts failed to show that the conditions were sufficiently severe t o constitute an Eighth Amendment violation. Prisons are required to provide inmates with hot and cold water, see Ramos, 6 3 9 F.2d at 568, but we held, in an unpublished order and judgment, that there w a s no Eighth Amendment violation where inmates were forced to use showers t h a t "produced water sometimes too hot and other times too cold." See Rhodes v. L a r a mi e Cnty. Bd. of Cnty. Com'rs, No. 94-8046, 1995 WL 539739, at *1 (Sept. 1 2 , 1995) (unpublished). 4 Relying upon that order and judgment, the district c o u r t implied that there could be no constitutional violation where the showers w e r e equipped to produce hot water but sometimes malfunctioned. 3 R., Doc. 140 a t 13-14. E v e n assuming without deciding that the shower temperatures could meet t h e objective component of the Eighth Amendment standard, Mr. Skelton has f a i l e d to produce evidence that the Defendants were deliberately indifferent.

Unpublished decisions are not binding precedent, but may be cited for p e r s u a s i v e value. See 10th Cir. R. 32.1(A).
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D e f e n d a n t Kroeker responded reasonably to Mr. Skelton's grievance by stating t h a t the water temperatures had been raised. In addition, Mr. Skelton fails to s h o w that Defendants Bruce and VanHoose set an unconstitutional policy because t h e HCF regulations state that shower water should be maintained at 110 degrees. I n addition, we agree with the district court that one occasion of alleged ma l i c i o u s fan use does not meet the objective prong of the Eighth Amendment s t a n d a r d . Mr. Skelton stated that March 16 was the only time that an officer ma l i c i o u s l y used a fan on him. One occasion of malicious fan use does not create a condition posing a "substantial risk of serious harm to inmate health or safety." DeSpain, 264 F.3d at 973 (quotation marks and citation omitted). 3. Exercise Yard Conditions I n Mr. Skelton's third grievance, he complained about the lack of gloves, r a i n gear, and outdoor covering in the segregation exercise area during the winter mo n t h s . Ex. L, Doc. 127-11, Grievance BA00011691 at 3-7. Inmates in the s e g r e g a t i o n unit are given the option to exercise in an uncovered outdoor yard for o n e hour five days a week. Barring inclement weather, once the exercise period b e g i n s , inmates are not permitted to re-enter the cellhouse until the end of the h o u r - l o n g period "in order to maintain security and adequate staff supervision." Ex. CC, Doc. 127-27, Kroeker Affidavit at 2. If inclement weather starts once the e x e r c i s e period has begun, inmates are permitted to re-enter the facility as a group a t the discretion of the officers on duty. Id. Officer Rudy Rodriguez testified
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t h a t inmates in segregation are under "special management," which requires a " mo r e intense moving of the inmate population," and that once inmates decide to g o outside, they are not permitted back inside unless there is lightning. 3 R., Ex. J J , Doc. 131-7, Rodriguez Deposition. Inmates are told the weather conditions p r i o r to going outside and have the option to remain in their cells, where they can e x e r c i s e according to a program provided by an activity therapist at HCF. Id. In h i s grievance, Mr. Skelton complained that he was unable to do the indoor e x e r c i s e program because his cell was too small. Ex. L, Doc. 127-11, Grievance B A 0 0 0 1 1 6 9 1 at 6. All inmates are given a denim jacket with wool lining before going o u t s i d e ; some are given stocking caps. Ex. A, Doc 127 at 20:12-20. Officer John M o n t o y a testified that inmates were never given hooded sweatshirts, sweatpants, g l o v e s , or rain gear before entering the exercise yard. 3 R., Doc. 131-5, Montoya D e p o s i t i o n at 17:17-18:5. The yard is not covered. M r . Skelton testified that "we didn't have enough clothing to stay warm. And the fact of the cold was exacerbated when it snowed and rained." Ex. A, S k e l t o n Deposition, Doc. 127-1 at 24:2-4. He described four occasions where the c l o t h i n g provided was not sufficient to protect him from snow or rain. On one o c c a s i o n , freezing rain started about 30 minutes into the hour-long exercise p e r i o d , and the officers on duty refused to allow Mr. Skelton back inside despite M r . Skelton's request. Id at 25:21-25:10. Mr. Skelton wrote in his grievance that
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h e was "soaked and frozen when he came back in" and that "his feet, hands, and l e g s burned and itched fiercely when [he] was able to take a shower." Ex. L, D o c . 127-11, Grievance BA00011691 at 5. On two occasions, it snowed while M r . Skelton was outside. One time, Mr. Skelton chose to go outside after the o f f i c e r s had told him it was snowing. Ex. A, Skelton Deposition, Doc. 127-1 at 2 7 : 1 - 1 4 . The other time, the snow began after Mr. Skelton decided to go outside, b u t he did not ask to come back in because he assumed the officers would not a l l o w it. Id. at 27:17-28:2. On one last occasion, it began to rain and sleet forty mi n u t e s into the exercise hour, and the officers refused to allow Mr. Skelton i n s i d e . Id. at 28:18-29:2. Mr. Skelton did not seek medical care after any of t h e s e incidents, Id. at 32:16-33:2, but he stated in response to an interrogatory t h a t he: s u f f e r e d extreme coldness and chills and resultant health and rest and s l e e p difficulties because of these actions and failures. Furthermore, d u e to his diabetic condition, Mr. Skelton needed exercise to avoid e x c e s s i v e levels of blood sugar. The exercise was an important c o mp o n e n t of his therapy. He had worries about the conflict between t h e need to exercise and the adverse effects of the inclement weather. A l l of this made it much more difficult for him to maintain his h e a l t h ­ p a s t , present, and future. E x . GG, Doc. 127-31, Skelton Response to Interrogatories at 5. On March 31, 2004, Defendant Kroeker denied Mr. Skelton's grievance, s t a t i n g that "it is not fiscally possible for the facility to invest in building another i n d o o r exercise area or to place rooves [sic] over the disciplinary segregation yard

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a r e a " and that "[t]here is no plan to issue gloves and/or rain gear to segregation i n ma t e s for use during yard periods." Ex. L, Doc. 127-11, Grievance B A 0 0 0 1 1 6 9 1 at 8, 9. Defendant Bruce concurred with her denial. Id. at 1. Mr. S k e l t o n alleges that Defendants Bruce and VanHoose violated his Eighth A me n d me n t rights by creating the policies regarding the exercise yard and that D e f e n d a n t Kroeker violated his Eight Amendment rights by being deliberately i n d i f f e r e n t to his health and safety regarding exercise opportunities for inmates in s e g r e g a t i o n . 1 R., Doc. 121, Amended Pretrial Order ¶ 6(a)(2)(a)-(c). The d i s t r i c t court granted summary judgment for the Defendants, holding that Mr. S k e l t o n ' s minimal exposure to the elements without gloves and a hat did not a mo u n t to an Eighth Amendment violation. 3 R., Doc. 140 at 16. We have held that the Eighth Amendment requires humane living c o n d i t i o n s , including adequate clothing and shelter. See Barney v. Pulsipher, 143 F . 3 d at 1310 (citing Farmer, 511 U.S. at 832-33). Other circuits have found E i g h t h Amendment violations where inmates were forced to experience inclement w e a t h e r without adequate clothing. See e.g., Gordon v. Faber, 973 F.2d 686 (8th C i r . 1992) (affirming Eighth Amendment violation where prison official forced i n ma t e s outside in sub-freezing temperatures and refused to provide hats and g l o v e s ) ; Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992) (affirming district court's o r d e r requiring prison to provide inmates with coats, hats, gloves, and, under s p e c i f i e d circumstances, boots during winter). In Faber, the prison official forced
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t h e segregation inmates outside to exercise­despite their request to stay i n d o o r s ­ f o r an hour to an hour and forty-five minutes while guards searched for a w e a p o n in the cellhouse. 973 F.2d at 687. The official refused to supply readily a v a i l a b l e hats and gloves, and inmates were not allowed to see a nurse until s e v e r a l hours after the incident, despite their complaints of frostbite. See id. In K n o p , the district court found that the jackets provided to the inmates­either l i g h t w e i g h t unlined or medium-weight lined­were insufficient to protect inmates f r o m Michigan winters and ordered the prison to provide "constitutionally a d e q u a t e winter coats, hats, gloves, and, under specified circumstances, boots." See Knop v. Johnson, 667 F. Supp. 467, 475-77 (W.D. Mich. 1987). Exposure to inclement weather without proper clothing can meet the o b j e c t i v e prong of an Eighth Amendment violation, but based on Mr. Skelton's l i mi t e d exposure to adverse conditions, there could be no such violation here. See D e S p a i n , 264 F.3d at 974 ("[T]he length of exposure to the conditions is often of p r i me importance."). The previously cited cases are distinguishable. Unlike the i n ma t e s in Faber, Mr. Skelton was never forced to go outside. He was always i n f o r me d of the outside conditions and always had the option to stay indoors. On t w o occasions­totaling 20 and 30 minutes­he was not allowed to return inside d e s p i t e his requests. In addition, unlike the inmates in Knop, he was provided a w o o l - l i n e d denim coat. "Mere discomfort or temporary adverse conditions which p o s e no risk to health and safety do not implicate the Eighth Amendment."
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W h i t i n g t o n v. Ortiz, No. 07-1425, 2009 WL 74471, at *6 (10th Cir. Jan. 13, 2009) ( u n p u b l i s h e d ) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Given the t e mp o r a r y nature of Mr. Skelton's exposure to inclement weather, a rational jury c o u l d not find that he faced a "substantial risk of serious harm to [his] health or s a f e t y . " See DeSpain, 264 F.3d at 973 (quotation marks and citation omitted). M r . Skelton also claims that HCF violated a 1996 civil order requiring p r i s o n facilities in Kansas to provide a cover in their segregation exercise yards a n d to provide gloves, coats, hooded sweatshirts, and hats to inmates during w i n t e r months. See Porter v. Graves, Case No. 77-3045-RDR (D. Kan. 1996); 3 R . , Doc. 139-2 at 5, 6. The district court rejected that argument, finding that it w a s unclear whether the order applied to HCF, and even if it did, the order was no l o n g e r in effect, as the case was closed on October 22, 1996. 3 R., Doc. 140 at 1 5 . In addition, the court noted that Mr. Skelton cannot prove an Eighth A me n d me n t violation merely by pointing to non-compliance with a court order. Although the Porter case was closed on October 22, 1996, the final order e x p r e s s l y stated that "neither party is estopped from raising the application of the P r i s o n Litigation Reform Act and the parties may by motion seek any relief p r o v i d e d for by the Prison Litigation Reform Act." 3 R., Doc. 139-3 at 2. Even i f the order still applies, we agree with the district court that non-compliance with a n order does not, on its face, violate the Eighth Amendment. 3 R., Doc. 140 at 1 6 . As discussed above, we conclude that there was no Eighth Amendment
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v i o l a t i o n based on the conditions in the exercise yard. AFFIRMED. E n t e r e d for the Court P a u l J. Kelly, Jr. C i r c u i t Judge

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