Cannady v. Cradduck et al

Filing 36

MEMORANDUM OPINION AND ORDER adopting as modified 34 Report and Recommendations, granting Motion 28 and the County Defendants' Motion for Summary Judgment doc. 24 is GRANTED IN PART AND DENIED IN PART; see order for specifics. Signed by Honorable Timothy L. Brooks on March 7, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

PLAINTIFF

DAVID ALLEN CANNADY
Case No. 5:16-cv-05039

v.

SHERIFF KELLEY CRADDUCK;
DR. SAEZ; NURSE TYRANNY RAY;
NURSE PATRICIA DAVIS;
B. FRISCHMANN, Maintenance

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before the Court is the Report and Recommendation (''R&R") (Doc. 34)
of the Honorable James R. Marschewski , United States Magistrate Judge for the Western
District of Arkansas , filed in this case on December 29 , 2016 , regarding Defendants
Sheriff Kelley Cradduck's and B. Frischmann 's (together, the "County Defendants")
Motion for Summary Judgment (Doc. 24) and Brief in Support (Doc. 25) and Separate
Defendants Dr. Saez's, Tyranny Ray's, and Patricia Davis' (collectively, the "Medical
Defendants") Motion for Summary Judgment (Doc. 28) and Brief in Support (Doc. 29). In
the R&R, the Magistrate Judge recommended that the Court grant the Medical
Defendants' Motion in its entirety, and grant in part and deny in part the County
Defendants' Motion.
The

Court

has

reviewed

the

recommendations

concerning

the

Medical

Defendants' Motion , to which no objections were filed . As the Court agrees that these
claims should be dismissed , the Court will grant the Motion and dismiss the Medical
Defendants from the case. As to the County Defendants' Motion , the Magistrate Judge
recommended that all claims against them also be dismissed , with the exception of an

1

individual capacity claim made against Defendant Frischmann. This claim relates to
Plaintiff David Allen Cannady's assertion that he was subjected to excessively cold
temperatures in his cell , and that Frischmann , a maintenance supervisor, was put on
notice of the cold temperatures but was deliberately indifferent to them. Frischmann filed
Objections to the R&R (Doc. 35) , and in response , the Court has now conducted a de
nova review as to all proposed findings and recommendations pertaining to the claim

against Frischmann. 28 U.S.C. § 636(b)(1 ). In addition to evaluating this claim , the Court's
Order will also address the official capacity claims made against the County Defendants,
which are subject to dismissal , but which the R&R did not substantively discuss.
Accordingly, the Court finds that the R&R should be , and hereby is , ADOPTED AS
MODIFIED , with the additional reasoning and expanded analysis set forth below.

I. BACKGROUND
On February 18, 2016 , Cannady filed his Complaint against the County
Defendants and Medical Defendants, maintaining that his constitutional rights were
violated while he was incarcerated at Benton County Detention Center ("BCDC"). As to
the County Defendants, Cannady claimed that he was subjected to unconstitutional
conditions of confinement because the temperatures in his cell were too hot in the
summer1 and too cold in the winter.
Cannady was temporarily held at BCDC beginning on June 9, 2015, until he was
transferred to the Arkansas Department of Corrections, Grimes Unit, on March 1, 2016.

1

Cannady submitted one grievance as to the excessive heat on June 22 , 2015. During
the summary judgment hearing , Cannady agreed that Defendants fixed the problem with
the "chillers" on the air conditioning unit, and that he suffered no medical effects from it.
Accordingly, the Magistrate Judge recommended dismissing this cla im, and Cannady did
not object.

2

See Doc. 26-2 , pp . 1, 11 . Cannady first began complaining about the cold temperatures
in the BCDC on November 22 , 2015 , when he submitted his first grievance about the
cold . See Doc. 26-4, p. 12. Cannady went on to file a total of thirteen grievances about
the cold temperatures in the prison from November 22 , 2015 , to February 4, 2016 . See

id. at pp. 14, 16, 18-19, 22-23 , 26-32 . Nine of the thirteen grievance complaints were
directed towards the cold temperatures in Cannady's cell 2 and/or the fact that Cannady
could not sleep in his cell because it was too cold. See id. at pp . 14, 16, 18-19, 26-30 . At
the summary judgement hearing , Cannady testified that there was a heating vent on the
interior wall of his cell but that he could not feel any heat coming from the vent and that
the cold was so severe that ice formed at least twice on the exterior cell wall to which his
bunk was attached . Cannady further testified that, each time he complained about the
cold temperatures, an individual from maintenance would check the temperature by
pointing a "gun"3 at a vent in the pod day room , which has no exterior walls.
In order to help combat the cold , inmates are ordinarily given one blanket, but, if
they are placed in a corner cell with two exterior walls, then they are given two blankets.

See Doc. 26-7, p. 3. Cannady testified that inmates are also given a full set of clothing ,
which consists of a shirt, pants , boxers , and a pair of socks, but that the blanket(s) and
clothing were not adequate to combat the cold in his prison cell. As a result, Cannady
testified that he acquired a cold and a runny nose and that it was too cold to sleep, which

2

The numbers assigned to each room in the BCDC are unclear from the record. It
appears to the Court that Cannady was housed in cells E-153 and E-154 during all periods
relevant to this case and that E-107 and E-103 are the "pod day rooms. " See Doc. 26,
pp. 10-13.
3
The record does not describe the apparatus that maintenance used to check
temperatures , which Cannady recounts as a "gun ," but the Court presumes the device to
be some type of infrared thermometer.

3

caused him to go without sleep for a total of approximately ten nights during his period of
confinement at BCDC. See Doc. 26-6 , pp. 63-64. Cannady further testified that the cold
caused him to spend another 60-90 nights waking up because of the cold two to three
times each night, walking around his cell to get warm , and losing approximately 30-45
minutes of sleep each time . See Doc. 26-6 , pp. 63-64. Cannady suspected the
temperature was being turned down deliberately prior to the weekend until Monday or
when maintenance workers returned to work. He also believed the temperature was set
incorrectly, but does not believe that the facility-wide heating and cooling system was
broken during this time. See Doc. 26-6, p. 86.
During all times relevant to this case , Frischmann was employed by BCDC as a
supervisor for maintenance and upkeep, a 'position that he has held for over eighteen
years. See Doc. 26-7 , p. 1. In that position , Frischmann regularly checks the temperatures
in the BCDC to assure compliance with jail standards , which require the temperature not
to exceed 85 degrees and not to drop below 65 degrees. Id. During the winter months,
Frischmann sets the thermostats in the BCDC to 74 degrees, but, due to the construction
of the building, Frischmann states the temperature varies between 67 and 77 degrees.
Id. at 2. Frischmann further states in an affidavit, that, during his "entire 18 year

employment, the temperatures in the [BCDC] have .. . not dropped below 65 degrees"although he fails to provide any explanation as to why he knows this to be true or to
provide supporting maintenance records . See id. at 1. His statement also fails to explain
whethe r it pertains to temperatures of the facility in general , or to the individual cells, or
both . See id.

4

Each time an inmate submits a facility-related grievance, whether it is based upon
a complaint regarding cold temperatures or otherwise, Frischmann or another member of
maintenance checks the problem and addresses it as soon as possible. See id. at 3. In
the instant case , out of the nine grievances submitted by Cannady concerning the cold
cell temperatures and/or the fact that he could not sleep in his cell because of the cold ,
seven of them were replied to in writing by Frischmann. See Doc. 26-4, pp. 14, 16, 1819, 26-30 . Frischmann's respective responses to such grievances were as follows : (1)
'Temps are being checked daily. "; (2) "This is an issue we are working on daily. We will
get it in sync soon ."; (3) 'This is an issue we are working on daily. We will get it in sync
soon. "; (4) "We are working on this , now."; (5) "yes thanks"; (6) "ok"; (7) "ok. " See id. at
14, 16, 19, 26-27 , 29-30 . From this record , it is unclear what problems related to
temperature regulation actually existed in Cannady's cell or the pod in general , or what
specific actions were taken to address the problems as soon as possible , other than
simply checking the temperature.
Frischmann objects to the Magistrate Judge's recommendation that the Court
preserve for trial Cannady's claim regarding the excessively cold temperatures in his cell.
Frischmann argues that there are no genuine issues of material fact regarding the claim
because: (1) any deprivation caused by the cold temperatures in Cannady's cell did not
objectively rise to such a level that would pose a substantial risk of serious harm to
Cannady's health or safety; (2) even if an objectively serious deprivation occurred,
Frischmann was not deliberately indifferent to Cannady's health or safety; and (3)
Cannady suffered no injuries from the cold temperatures.

5

II. LEGAL STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure , summary judgment is
appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on
file , together with affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.
P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 , 322 (1986); Anderson v. Liberty

Lobby, Inc., 477 U.S . 242 , 250 (1986). When deciding a motion for summary judgment,
the Court must consider all the evidence and draw all reasonable inferences that arise
from the evidence in a light most favorable to the nonmoving party. Nitsche v. CEO of

Osage Valley Elec. Co-Op., 446 F.3d 841 , 845 (8th Cir. 2006). The moving party bears
the burden of showing that there is no genuine issue of material fact and that it is,
therefore , entitled to judgment as a matter of law. Enterprise Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996).
Once the moving party has met this burden , the nonmoving party must set forth
specific facts by affidavit and other evidence, showing that a genuine issue of material
fact exists. See Fed . R. Civ. P. 56(e). Genuine issues of material fact exist where "there
is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party." Anderson, 477 U.S. at 249. To withstand a defendant's motion for summary
judgment, a plaintiff must substantiate his or her allegations with "sufficient probative
evidence that would permit a finding in his favor on more than mere speculation ,
conjecture , or fantasy." Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992).
Summary judgment is properly granted to a defendant where no reasonable jury could
render a verdict for the plaintiff. Taylor v. White, 321 F.3d 710 , 715 (8th Cir. 2003).

6

Ill. DISCUSSION
Below the Court will address, first, Frischmann's objections to preserving
Cannady's individual capacity claim against him, and, second, Cannady's official capacity
claims against the County Defendants, which were not substantively addressed in the
R&R. Both issues are discussed in turn.

A. Unconstitutional Conditions of Confinement- Cold Temperatures
The Eighth Amendment protects a prisoner against cruel and unusual punishment
during his or her confinement. See U.S. Const. amend. VIII ; see a/so Hutto v. Finney, 437
U.S. 678, 685 (1978) . As it relates to the treatment of prisoners, the Supreme Court has
distinguished between two different kinds of conduct: (1) that which is part of the formal
punishment imposed for a crime and (2) that which does not purport to be punishment,
including the conditions of confinement, medical care , and restoration of control over
inmates. See Wilson v. Seiter, 501 U.S. 294, 297-303 (1991 ). As to the latter, the
Supreme Court has taken the position that harsh conditions and rough disciplinary
treatment are part of the price that a convict must pay for his or her offenses against
society. See Rhodes v. Chapman , 452 U.S . 337, 347-49 (1981). However, while the
Constitution does not mandate comfortable prisons, it also does not permit inhumane
ones. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The Eighth Amendment , however, "'has no application' until there has been a
'formal adjudication of guilt,"' [but] the Fourteenth Amendment gives state pretrial
detainees-just as the Fifth Amendment gives federal pretrial detainees-rights which
are 'at least as great as the Eighth Amendment protections available to a convicted
prisoner. "' Walton v. Dawson , 752 F.3d 1109, 1117 (8th Cir. 2014) (emphasis in original)

7

(quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 , 244 (1983)). "The Constitution
affords greater protection to a pretrial detainee compared to a convicted inmate in the
sense that '[d]ue process requires that a pretrial detainee not be punished ."' Id. (quoting
Bell v. Wolfish, 441 U.S. 520 , 535 n. 16 (1979)) . Therefore , "the burden of showing a

constitutional violation is lighter for a pretrial detainee under the Fourteenth Amendment
than for a post-conviction prisoner under the Eighth Amendment. " Morris v. Zefferi, 601
F.3d 805 , 809 (8th Cir. 2010) (emphasis added) (quoting Wever v. Lincoln Cnty. , Neb. ,
388 F.3d 601, 606 n.6 (8th Cir. 2004)) . Although the Eighth Circuit has not established a
"clear standard for pretrial detainees," the Court has repeatedly applied the same
standard that is applied to Eighth Amendment claims made by convicted inmates.4 See
id. (quoting Vaughn v. Greene Cnty. , Ark. , 438 F.3d 845 , 850 (8th Cir. 2006)) .

Therefore , an individual challenging conditions of confinement in a prison must
prove both an objective and subjective element. See Revels v. Vincenz, 382 F.3d 870 ,
875 (8th Cir. 2004) (citing Wilson , 501 U.S. at 298) . "The defendant's conduct must
objectively rise to the level of a constitutional violation by depriving the plaintiff of the
minimal civilized measure of life's necessities. The defendant's conduct must also reflect
a subjective state of mind evincing deliberate indifference to the health or safety of the
prisoner." Id. (citations and quotations omitted) .

4

Cannady was confined at the BCDC from June 9, 2015 , until March 1, 2016 , and was
convicted on January 14, 2016 . (Doc. 26-2, pp . 1-2). His complaints relating to the cold
temperatures began on November 22 , 2015 , and lasted until February 5, 2016 . (Doc. 26,
pp . 10-13). Therefore, Cannady's claims relating to the cold cell temperatures that
occurred before January 14, 2016 , would arise under the Fourteenth Amendment and its
"lighter" burden , Morris , 601 F.3d at 809 , while his claims after that date would arise under
the Eighth Amendment. However, because the Eighth Circuit applies the same standard
~o pretrial detainees as that applied to Eighth Amendment claims made by convicted
inmates, the Court will discuss both timeframes together.

8

1. Objectively Serious Deprivation
In order to succeed in proving that certain conditions of confinement are
unconstitutional, the plaintiff must first demonstrate that the conditions objectively rise to
such a level that he or she is denied "the minimal civilized measure of life's necessities. "

Id. (citations omitted). The Eighth Amendment requires inmates to be provided with
"reasonably adequate ventilation , sanitation , bedding , hygienic materials, and utilities
(i .e. , hot and cold water, light, heat, plumbing). " Ramos v. Lamm, 639 F.2d 559 , 568 (10th
Cir. 1980), cert.

denied, 450

U.S. 1041

(1981) (citations omitted). To

prove an

unconstitutional deprivation , "a prisoner must show that conditions were more than
uncomfortable, and indeed rose to the level of 'conditions posing a substantial risk of
serious harm' to inmate health or safety. " DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir.
2001) (quoting Farmer, 511 U.S. at 834). Whether there is a substantial risk of serious
harm depends on "the particular facts of each situation ; the circumstances, nature , and
duration of the challenged conditions must be carefully considered. " Id. at 974. However,
a plaintiff need not suffer an injury in order to prove that the conditions in which he was
confined were, in fact, cruel and unusual punishment. See Helling v. McKinney, 509 U.S.
25 , 33 (1993).
The standards against which a court measures prison conditions are "the evolving
standards of decency that mark the progress of a maturing society." Estelle v.

Gamble, 429 U.S . 97, 102 (1976). It is well settled that inmates have the right to adequate
shelter, including "protection from extreme cold ," see McCarthy v. Mullins, 2007 WL
437868 , at *12 (W.D. Ark. Feb . 7, 2007) (quoting Dixon v. Godinez, 114 F.3d 640 , 642
(7th Cir. 1997)), and to "not be confined in a cell at so low a temperature as to cause

9

severe discomfort," Del Raine v. Williford, 32 F.3d 1024, 1034 (7th Cir. 1994) (citation
and quotation omitted). In determining whether cold temperatures in a cell violate the
Eighth Amendment , courts have examined the severity of the cold , its duration, whether
the prisoner had alternative means that were adequate to protect himself from the cold ,
and whether the prisoner must endure other uncomfortable conditions. See Dixon , 114
F.3d at 644. Further, "the question of whether the severity of the cold , in combination with
the length of time which the inmate had to endure it, was sufficient to violate the Eighth
Amendment is one wh ich will often be peculiarly appropriate for resolution by the trier of
facts" rather than on summary judgment. Id. at 643 .
"Because of the inherent subjectivity involved in deciding what is a comfortable
temperature , th[e) [c]ourt looks to objective criteria to determine whether the cold in [a]
case was severe. " Scotti v. Russell, 175 F. Supp. 2d 1099, 1103 (N.D. Ill. 2001 ). Thus, a
court should take note of any "concrete , objectively verifiable evidence . . . that
demonstrates the degree of cold " in an inmate's cell. See Dace v. Smith-Vasquez, 658 F.
Supp . 2d 865 , 879 (S .D. Ill. 2009). Courts have consistently found allegations of items
freezing inside the cell , including ice forming inside the cell on the cell wall , to provide the
concrete , objectively verifiable evidence needed to survive summary judgment. See, e.g.,
Corse/Ii v. Coughlin , 842 F.2d 23 , 27 (2d Cir. 1988) (holding that a genuine issue of

material fact remained as to whether an objectively serious deprivation occurred when
the plaintiff was exposed to cold temperatures for approximately three months and it was
so cold that ice was forming in his toilet); Dixon v. Godinez, 114 F.3d 640, 644 (7th Cir.
1997) (holding that a genuine issue of material fact remained as to whether an objectively
serious deprivation occurred when the plaintiff's "unrefuted testimony that ice persistently

10

formed on the walls of the cells suggest[ed] that temperatures in the cell block were
literally freezing , during the day as well as at night, and that this condition continued
unchanged for several winters"); Bennett v. Chitwood, 519 F. App'x 569 , 574 (11th Cir.
2013) (holding that no genuine issue of material fact remained as to whether an
objectively serious deprivation occurred with one reason being that the "case [was] not
one in which ice formed inside the cell"); Diggs v. Godinez, 1997 WL 308847, at *6 (N.D.
Ill. June 3, 1997) (holding that a genuine issue of material fact remained as to whether an
objectively serious deprivation occurred when the defendants' "argument [did] not rebut
Plaintiff's assertion that ice often formed on the inside of [the plaintiff's] own cell , and that
[the plaintiff] lacked extra blankets or a space heater" for one year); Dillingham v.
Schofield, 2011 WL 3664470 , at *8 (E .D. Tenn . Aug . 19, 2011) (finding that plaintiff stated

a claim upon which relief may be granted when the plaintiff alleged that the temperature
outdoors was below zero and that ice formed in the cell for a period of three days, which
caused the skin on the plaintiff's fingers to crack and bleed).
While a plaintiff need not suffer an injury in order to prove that certain conditions
of confinement are unconstitutional , courts have also noted that "sleep is critical to human
existence, and conditions that prevent sleep have been held to violate the Eighth
Amendment. " See Walker v. Schult, 717 F.3d 119, 126-27 (2d Cir. 2013); see a/so Wright
v. McMann, 387 F.2d 519 , 521-22 , 526 (2d Cir. 1967) (finding that the inmate stated an

Eighth Amendment claim by alleging he was "forced to sleep completely nude on the cold
rough concrete floor and that the cell was so cold and uncomfortable that it was
impossible for him to sleep for more than an hour or two without having to stand and move
about in order to keep warm"); Tafari v. McCarthy, 714 F. Supp . 2d 317, 367 (N.D .N.Y.

11

2010) ("Courts have previously recognized that sleep constitutes a basic human need
and conditions that prevent sleep violate an inmate's constitutional rights ." (citing Harper
v. Showers, 174 F.3d 716 , 720 (5th Cir. 1999))); Robinson v. Danberg, 729 F. Supp . 2d

666 , 683 (D. Del. 2010) (denying motion to dismiss Eighth Amendment claims based on
allegations that "defendants took specific acts designed to deprive [plaintiff] of sleep").
Here, a genuine issue of material fact remains as to whether the cold temperatures
in Cannady's cell rose to such a level as to be an objectively serious deprivation under
the Eighth and Fourteenth Amendments. Cannady complained of cold temperatures in
his cell from November 2015 to February 2016-a period spanning approximately four
months. Frischmann states that "[t]he undisputed evidence is that the temperat ure did not
drop below 67 degrees in the facility under [his] watch ," (Doc. 35 , pp. 2-3), but this is not
true . While it is undisputed that "the thermostats were set to 74 degrees" and "[t]he
temperature during the winter is consistently between 67 to 77 degrees," (Doc. 26 , p. 20),
Cannady's unrefuted testimony is that maintenance only checked the temperature in the
pod day room , which had no exterior walls, and not in his or any other inmate's cell , and
that the temperature checks occurred during the day when thirty to forty inmates would
be in the room . See Doc. 26-6 , pp. 26-27, 68-69 . This creates a question of fact as to the
actual temperature in Cannady's cell . This is especially relevant because Cannady
testified that there was a heating vent on the interior wall of his cell , but that he could not
feel any heat coming from the vent. Cannady also testified that the cold was so severe
that ice formed at least twice on the exterior cell wall to which his bunk was attachedindicating that the temperatures in the cell were literally freezing- which is exactly the
type of concrete , objectively verifiable evidence in the record that many courts have found

12

to create a genuine issue of material fact as to the temperature in an inmate's cell. Viewing
the facts in the light most favorable to Cannady, a reasonable jury could find that an
inmate who is required to sleep in a cold cell with a malfunctioning vent that allowed no
heat to flow into the cell for a period of approximately four months , including at least two
nights where ice formed on the wall that supports the inmate's bunk, has suffered an
objectively serious deprivation sufficient to create a substantial risk of harm to health or
safety.
Frischmann also takes the position that Cannady was never subjected to "an
unreasonable risk of serious damage to [his] health" because Cannady was fully dressed ,
"was given two blankets with which to cover himself," and "[t]here was no evidence that
[Cannady] or any other inmate showed any signs of hypothermia." (Doc. 35, p. 3) . While
it is true that Cannady had access to clothing and blankets, developing hypothermia is
not a prerequisite for bringing a claim for unconstitutional conditions of confinement due
to the cold under the Eighth or Fourteenth Amendments . In fact , inmates need not suffer
any injury to succeed on such claims. See Helling , 509 U.S. at 33. 5

5

The Eighth Circuit has stated that nominal damages may be awarded to vindicate a
violation of an individual's constitutional rights if such deprivation has not caused an
actual , provable injury. See Westcott v. Crinklaw, 133 F.3d 658 , 662 (8th Cir. 1998)
(citation omitted). In addition , punitive damages may be awarded in a § 1983 claim if a
factfinder finds that a "defendant's conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected rights
of others." Williams v. Hobbs , 662 F.3d 994, 1011 (8th Cir. 2011) (quoting Smith v. Wade ,
461 U.S. 30 , 56 (1983)) (citation and quotations omitted). Because a successful plaintiff
bringing a § 1983 conditions of confinement claim need not suffer a present injury, and
may be entitled to nominal and/or punitive damages even if no actual , provable injury is
suffered , Frischmann's argument that Cannady has suffered no injury fails to establish a
basis to grant summary judgment in Frischmann's favor in the instant case .

13

Even if it were true that inmates had to show some sort of present, objective injury
caused by the cold , Cannady testified that the temperature in his cell was too cold to
sleep . See Doc. 26-6 , pp . 63-64. This caused him to go without sleep for approximately
ten nights, and to spend another 60-90 nights waking up repetitively and walking around
his cell to get warm . See id. Cannady lost approximately 30-45 minutes of sleep each
time he was forced to do this. See id. While Frischmann argues that sleep loss is not a
"physical injury," as other courts have noted , sleep is critical to our existence as humans,
and a condition that causes sleep deprivation may violate an inmate's constitutional
rights. Cf. Tafari, 714 F. Supp . 2d at 367 . Additionally, Cannady complained about the
excessively cold temperatures in his cell for a period of approximately 75 days. Viewing
the facts in the light most favorable to Cannady, a reasonable jury could find that the cold
temperatures in Cannady's cell that caused ten nights of sleeplessness plus another 65
consecutive nights of sleep loss was an objectively serious deprivation that created a
substantial risk of harm to Cannady's health and/or safety.
In sum , material issues of fact remain as to whether the severity of the cold in
Cannady's cell, its duration, and the adequate alternative means to protect himself from
such cold created an objectively serious deprivation as to deny him of "the minimal
civilized measure of life's necessities" guaranteed under the Eighth and Fourteenth
Amendments . See Revels, 382 F.3d at 875 (citation omitted) . As such , these questions
are precluded from summary judgment and reserved for the trier of fact.
2. Deliberate Indifference

In addition to proving an objectively serious deprivation , the plaintiff must also
prove a subjective element-that the defendant acted with a "sufficiently culpable state

14

of mind ." Wilson , 501 U.S. at 298 . With respect to condition of confinement claims , the
"deliberate indifference" standard is used to determine whether the individual acted with
such a state of mind . Id. at 301-05 . Under this standard , individuals may be found liable
for denying humane conditions of confinement only if they knew that an inmate faced a
substantial risk of serious harm and disregarded that risk by failing to take reasonable
measures to abate it; the individual "must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists , and he must also draw the
inference." See Farmer, 511 U.S. at 837-42 . In other words , "[t]he deliberate indifference
element has two components: an actor must 'know[) of and disregard[] an excessive risk
to inmate health or safety."' Letterman v. Does, 789 F.3d 856 , 862 (8th Cir. 2015)
(alterations in original) (quoting Farmer, 511 U.S. at 837) .
a. Knowledge of the Risk

To meet the first component, a plaintiff "must first demonstrate that [a] defendant[]
knew of the substantial risk of serious harm to the victim ." Letterman , 789 F.3d at 862
(citing Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998)). However, the plaintiff is
not required to show that the actor actually knew of the substantial risk of harm to an
inmate; the district court can infer knowledge if the risk was obvious . See, e.g., Farmer,
511 U.S. at 842-43 (explaining that factfinders can infer knowledge from a variety of
sources and that "a factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious"); Gregoire v. Class, 236 F.3d 413 , 417
(8th Cir. 2000) ("[T]his knowledge[, that the defendant was aware of a substantial risk of
serious harm ,] is subject to proof by all the usual ways , including inferences based on the
obviousness of the risk ."); Jackson, 140 F.3d at 1152 (stating that the question of

15

knowledge turns on "whether an excessive risk to [the inmate's] health or safety was
known or obvious"). It is , therefore , "sufficient to show that 'the defendant[] being sued
had been exposed to information concerning the risk and thus 'must have known ' about
it.'" Letterman , 789 F.3d at 862 (quoting Farmer, 511 U.S. at 842).
Here, there are genuine issues of material fact regarding whether Frischmann
knew of the substantial risk of serious harm posed by the cold temperatures in Cannady's
cell. Although Frischmann states that there is no proof in the record that he was personally
aware of the cold temperatures, see Doc. 35 , p. 2, Cannady filed thirteen separate
grievances regarding the cold temperatures , nine of which specifically mentioned the cold
temperatures in his cell and/or the fact that he could not sleep at night in his cell because
of the cold temperatures. See Doc. 26-4, pp. 14, 16, 18-19, 22-23 , 26-32. Frischmann
personally replied to seven of these grievances. See id. These repeated complaints were
specific enough to create a genuine issue of material fact regarding whether Frischmann
was put on notice about the risk of harm to Cannady so that "he 'must have known ' about
it. "' See Letterman , 789 F.3d at 862 (quoting Farmer, 511 U.S. at 842) ; see also

McCarthy, 2007 WL 437868 , at *12 (stating that filing a grievance is only effective if an
inmate submits a grievance or request that specifically mentions the condition of
confinement, such as the cold temperatures in his or her cell or the need for additional
heat, clothing , or bedding because of the cold) ; Bennett, 519 F. App'x at 575 (holding that
the plaintiff failed to establish that the defendants acted with deliberate indifference when
the plaintiff submitted complaints about not having clothes or "the situation generally"
instead of the cold temperatures specifically) .

16

Frischmann 's final argument on this point is that he lacked specific knowledge that
the temperature inside Cannady's particular cell was dangerously low at night and that
such temperature could actually cause a serious injury. However, courts have not
required a showing of specific knowledge of particular temperatures in order to meet the
deliberate indifference test. Instead, the test is met when a defendant knows that the
temperatures in a plaintiff's cell are cold. See, e.g., Dixon, 114 F.3d at 645 (finding that
there were questions of material facts regarding whether the defendants were deliberately
indifferent when the defendants knew about the bitterly cold cells) ; Walker, 717 F.3d at
129-30 (finding that the plaintiff adequately alleged deliberate indifference when the
plaintiff alleged that the defendants were aware of the plaintiff's cold cell) . For these
reasons , a genuine issue of material fact remains as to whether Frischmann knew of the
substantial risk of serious harm to Cannady caused by the cold temperatures in
Cannady's cell.

b. Deliberate Disregard of the Risk
Once the knowledge component has been satisfied, then the plaintiff "must
demonstrate [that) the actor deliberately disregarded that [substantial) risk" of serious
harm to the victim . Letterman , 789 F.3d at 862 (citing Jackson, 140 F.3d at 1152). 'The
plaintiff must show [that] the [defendant] 'knew that their conduct was inappropriate in
light of' the risk to the prisoner. " Id. (quoting Krout v. Goemmer, 583 F.3d 557 , 567 (8th
Cir. 2009)) . However, "[d]eliberate indifference constitutes more than mere negligence."

Id. (citing Farmer, 511 U.S. at 835) . To meet this standard , there must be "more than
ordinary lack of due care for the prisoner's . . . safety." Farmer, 511 U.S. at 835 (quotation
omitted) . "Although the level of blameworthiness must rise above negligence , a plaintiff

17

does not have to show that the [defendants] acted 'for the very purpose of causing harm
or with knowledge that harm w[ould] result."' Letterman , 789 F.3d at 862 (quoting Farmer,
511 U.S. at 835) . "[T]he obvious inadequacy of a response to a risk may support an
inference that the [defendant] recognized the inappropriateness of his conduct. " Krout,
583 F.3d at 567 . Therefore , when deciding whether an actor deliberately disregarded a
risk , a court should consider "his actions in light of the information he possessed at the
time, the practical limitations of his position and alternative courses of action that would
have been apparent to an [individual] in that position ," Gregoire, 236 F.3d at 419 , and a
court should avoid determining the question "with hindsight's perfect vision," Jackson, 140
F.3d at 1152.
Defendants "who actually knew of a substantial risk to inmate health or safety[,
including the risk of cold temperatures in an inmate's cell ,] may be found free from liability
if they responded reasonably to the risk, even if the harm ultimately was not averted ."
Farmer, 511 U.S. at 844 . For example , in Skelton v. Bruce , the Tenth Circuit held that the

plaintiff did not produce sufficient evidence for a rational jury to find that the defendants
were deliberately indifferent when one of the defendants, the unit team counselor of
plaintiff's "cellhouse," responded to plaintiff's only grievance regarding the cold
temperatures in his cell by checking the temperature with maintenance and confirming
that the temperature was set to 68 degrees, which was the temperature setting required
in the prison's regulations. 409 F. App-' x 199, 201 , 204-05 (10th Cir. 2010) . The court
reasoned that, even though the plaintiff "complain[ed] of nighttime temperature drops and
that a single temperature check was performed during the day, [the court would] not hold
[defendants] liable for what would at most amount to mere negligence." Id. at 205 . The

18

court also noted that the plaintiff's allegation that the temperature check was a sham was
"pure speculation and [such allegation would] not raise a genuine issue of material fact
that [the defendant] acted with deliberate indifference." Id.
Likewise , in Scotti v. Russell, the district court held that the plaintiff failed to prove
deliberate indifference when the defendants, a correctional captain and caseworker
supervisor at the prison where plaintiff was located , offered alternative means to protect
the plaintiff from the cold , including insulating the windows of the cells, cleaning out the
paper that was stuffed in the vents , and maintaining the heating system by having it
regularly examined . 175 F. Supp. 2d at 1104. The court stated that this work "indicate[d
the defendants'] honest efforts to provide adequate living conditions. " Id. On the other
hand , in Walker v. Schult, the Second Circuit held that the plaintiff adequately alleged
deliberate indifference on the part of the defendants, which included wardens , associate
wardens , a unit manager, and a counselor, and the district court erred by dismissing the
complaint when the plaintiff alleged that the defendants knew that the cell was cold in the
winter and the conditions in the plaintiff's cell never changed . 717 F.3d at 129-30. The
court stated that, while "courts have the power and duty to dismiss complaints that contain
only conclusory, frivolous , or implausible allegations , . .. the district court improperly
assayed the weight of the evidence[] . . . and failed to draw all reasonable inferences in
[the plaintiff's] favor. " Id. at 128, 130.
In addition , defendants who knew of a substantial risk to an inmate's health or
safety may also be free from liability if they do not have the power to correct the condition
or conditions of concern. See Del Raine, 32 F.3d at 1038. For example, in Dace v. SmithVasquez , the court held that the defendants were not "indifferent, " let alone "deliberately

19

indifferent, " when the plaintiff was given winter clothing and a blanket, and some of the
defendants, who were prison employees, addressed plaintiff's complaints about his cold
cell by submitting work orders for the heating system , while other defendants, a counselor
and public service administrator, did not directly respond to plaintiff's complaints. 658 F.
Supp. 2d at 880. The court stated that there was no evidence that "indicate[d] that [the
prison employees] had the authority to do anything else" or that the counselor and public
service administrator "had the power to treat [p]laintiff's complaints" and that, "[a]t best,
the record shows that the [d]efendants might have been negligent. " Id. at 880-81 . On the
other hand , in Diggs v. Godinez, the court held that summary judgment was inappropriate
and a question remained "as to whether [the d]efendants did everything in their power to
keep cell temperatures at reasonable levels" when one defendant, a former warden,
referred plaintiff's grievances to the chief engineer, and the other defendant, a unit
manager/superintendent, issued a standing order to provide inmates with extra blankets.
1997 WL 308847 , at *1, *7. The court reasoned that "[t]here [was] no evidence ... [in the
record] that [d]efendants had no power to improve the heat in" plaintiff's unit and that the
chief engineer did not start working at the prison until the year after plaintiff began
complaining of cold temperatures in his cell. Id. at *7 .
Here, the question of whether a genuine issue of material fact exists regarding
whether Frischmann deliberately disregarded the risk of cold temperatures in Cannady's
cell is a much closer question than in the cases previously discussed . Frischmann makes
two arguments concerning deliberate disregard. The first argument, which can be
disposed of immediately, concerns whether Frischmann deliberately disregarded the risk
of cold temperatures by incorrectly setting, or intentionally turning down , the thermostat,

20

as Cannady claims . See Doc. 35, p. 4. Without any other facts substantiating such a
claim , Cannady's allegations are pure speculation and will not raise a genuine issue of
material fact that Frischmann deliberately disregarded the substantial risk posed by the
cold temperatures in his cell.
Frischmann's second argument is that he did not deliberately disregard the risk of
cold temperatures in Cannady's cell because, each time Cannady filed grievances about
the cold temperatures, a member of maintenance "came into the cell block to check the
temperature and addressed any issues they found. " See Doc. 35 , p. 4. Frischmann states
that, if anything, such conduct would amount to "mere negligence ," which would not
satisfy the standard for deliberate disregard . See id. In other words, Frischmann argues
that this response was reasonable under the circumstances , but the Court finds that
genuine issues of material fact persist as to this point.
First, as to Frischmann's heavy reliance on Skelton for the contention that his
actions amount to , at most, mere negligence, (Doc. 35 , p. 4) , the Court finds that case
distinguishable from the instant one. Skelton involved a unit team counselor who inquired
with maintenance about the temperatures in the prison and determined that the unit's
temperature was set to 68 degrees, which was the temperature setting required in the
prison's regulations . See Skelton, 409 F. App'x at 201 , 204-05 . Frischmann , on the other
hand , is a supervisor for the maintenance and upkeep of BCDC . (Doc. 26-7 , p. 1). A
response that is deemed reasonable for a unit team counselor is not necessarily
reasonable for a maintenance supervisor whose duties may fairly be assumed to include
investigating and fixing malfunctioning equipment or other problems in the jail.

21

Second , even if temperature checks alone were a reasonable response to
complaints about cold temperatures, all the readings here were taken in the cell block
and not in Cannady's cell. Frischmann has not presented , and the Court has not found ,
any evidence in the record that anyone from maintenance , including Frischmann , set foot
in Cannady's cell to check the temperatures and/or perform any type of maintenance
work. Like the defendants in Walker, Frischmann knew about Cannady's complaints of
cold temperatures in his cell. 717 F.3d at 129-30. Even with this knowledge , the
complaints of the cold cell temperatures recurrently persisted without change. See id.
Third , the Court cannot absolve Frischmann of liability on summary judgment
simply because he makes the conclusory claim that, in response to Cannady's
complaints, maintenance "addressed any issues they found ." (Doc. 35 , p. 4) . Unlike the
defendants in Scotti who did such things as insulate the windows of the cells and clean
out paper that was stuffed in heating vents, Frischmann has not noted , and the Court has
not located , a single, specific example of how he or anyone else from maintenance
"addressed" any issues found relating to the cold temperatures in Cannady's cell.
Frischmann agrees that the only specific response he or any other maintenance worker
under his supervision made after receiving Cannady's complaints was to check the
temperatures "in the cell block." Id. Furthermore , in Frischmann's responses to some of
Cannady's grievances , he admitted that there was some type of problem with the heating
in the prison and that "[t]his [was] an issue [they were] working on daily ... [and they
would] get it in sync soon ." See Doc. 26-7 , pp. 16, 19, 26 .
Fourth , the Court disagrees that there is no dispute of material fact regarding
whether Frischmann was powerless to correct the cold temperatures in Cannady's cell.

22

In fact, such an argument would be almost inconceivable because Frischmann , as a
supervisor of maintenance and upkeep, would likely be in one of the best, if not the best,
positions at BCDC to correct, or refer someone to correct, such a condition . Based on the
four reasons described above, a reasonable jury could find that Frischmann deliberately
disregarded the substantial risk of harm to Cannady.
In sum, viewing all facts and drawing all inferences in favor of Cannady as the nonmoving party, while also taking care not to assay the weight of the evidence, this Court
finds that genuine issues of material fact remain . Such issues remain , first, as to whether
the cold temperatures in Cannady's cell was an objectively serious deprivation under the
Eighth and Fourteenth Amendments and , second , as to whether Frischmann was
deliberately indifferent to the risk posed by the cold temperatures in Cannady's cell.
B. Official Capacity Claims

County Defendants also contend that there are no genuine issues of material fact
regarding the official capacity claims , and that Cannady has failed to allege any facts that
establish an unconstitutional policy or custom related to the cold temperatures in his cell.
Although the Court agrees with the Magistrate Judge's ultimate conclusion that these
claims should be dismissed , it believes the reason ing beh ind that conclusion requires
some elaboration .
A suit against the Sheriff in his or her official capacity is the equivalent of a suit
against the county itself. See Liebe v. Norton, 157 F.3d 574 , 578 (8th Cir. 1998); see also
Kentucky v. Graham, 473 U.S. 159, 105 (1985) . "Thus , the actions of the Sheriff will be

deemed actions of the County .. .. [l]n a § 1983 action , a [governmental entity] may only
be held liable for constitutional deprivations if the deprivation is the result of a policy or

23

custom of the" governmental entity. Liebe, 157 F.3d at 578-79 (citation omitted). A plaintiff
seeking to impose liability on a governmental entity under § 1983 must show that the
governmental entity "itself cause[d] the constitutional violation at issue. Respondeat
superior or vicarious liability will not attach ." City of Canton, Ohio v. Harris , 489 U.S. 378,
385 (1989) ; Monell v. Dep 't of Soc. Servs., 436 U.S. 658 , 694 (1978) . "There are two
basic circumstances under which [governmental entity] liability will attach : (1) where a
particular .. . policy or custom itself violates federal law, or directs an employee to do so;
and (2) where a facially lawful . . . policy or custom was adopted with 'deliberate
indifference' to its known or obvious consequences ." Moyle v. Anderson , 571 F.3d 814,
817-18 (8th Cir. 2009) (citation omitted) .
"Because an official policy speaks for itself about the intent of public officials , proof
of a single act by a policymaker may be sufficient to support liability." Jenkins v. Cnty. of

Hennepin, Minn., 557 F.3d 628 , 633 (8th Cir. 2009) (citing McGautha v. Jackson Cnty.,
36 F.3d 53 , 56 (8th Cir. 1994)). To establish the existence of an unconstitutional policy, a
plaintiff "must point to 'a deliberate choice of a guiding principle or procedure made by the
. . . official who has final authority regarding such matters. "' Id. (quoting Mettler v.

Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). In addition to showing the policy is
unconstitutional, a plaintiff "must also show that . . . it was 'the moving force ' behind the
harm that he suffered ." Id. (quoting Mettler, 165 F.3d at 1204). On the other hand , "a
custom can be shown only by adducing evidence of a 'continu ing , widespread , persistent
pattern of unconstitutional misconduct. "' Id. at 634 (quoting Mettler, 165 F.3d at 1204). In
order to establish an unconstitutional custom , "[a] plaintiff must also show either that

24

policymakers were deliberately indifferent to the misconduct or that they tacitly authorized
it. " Id. (citing Mettler, 165 F.3d at 1204).
Here, Cannady has failed to allege any facts that would establish an
unconstitutional policy or custom on the part of Benton County. In fact , most of Cannady's
claims relate, not to a policy or custom, but to how the County Defendants treated him
individually while he was at the BCDC . In his form complaint, Cannady did not describe
a policy or custom relating to the County Defendants at all. See Doc. 1. The only possible
policies or customs that can be adduced from Cannady's hearing testimony that relate to
the County Defendants are that: (1) maintenance incorrectly set, or intentionally turned
down, the thermostats before the weekends during the winter months ; and (2) that
maintenance only checked the temperatures in the pod day room when they received
complaints regarding cold temperatures . As to the former, without any substantiating
evidence, such an allegation is mere speculation and will not serve as a basis to
overcome summary judgment on this issue. As to the latter, Cannady has failed to set
forth any possible guiding principle or procedure that is made , not by a member of
maintenance, but by the government official with final authority regarding the matter. In
addition, while Cannady has set forth sufficient facts to survive summary judgment on the
issue of deliberate indifference as it applies to Frischmann individually, Cannady has set
forth no facts that any policymakers were deliberately indifferent, yet alone that any
policymakers tacitly authorized the conduct. Stating that Sherriff Cradduck is generally in
charge of employee decisions will not suffice to create a genuine issue of material fact in
order to survive summary judgment.

25

In sum , Cannady has failed to allege facts that would establish an unconstitutional
policy or custom on the part of Benton County. Therefore , no genuine issues of material
fact exist regarding the official capacity claims against the County Defendants, so
summary judgment is appropriate on those claims .

IV. CONCLUSION
The Court, being well and sufficiently advised after its de nova review of the record,
finds that the R&R (Doc. 34) should be and hereby is ADOPTED AS MODIFIED.
Accordingly, the Medical Defendants' Motion for Summary Judgment (Doc. 28) is

GRANTED, and the County Defendants' Motion for Summary Judgment (Doc. 24) is
GRANTED IN PART AND DENIED IN PART. The County Defendants' Motion is DENIED
as to Cannady's unconstitutional conditions of confinement claim against Frischmann in
his individual capacity based on the cold temperatures in Cannady's prison cell. The
Motion is GRANTED as to all of Cannady's other claims .

IT IS SO ORDERED on

this ~ day of March , 2017 .

OKS
S DISTRICT JUDGE

26