Waterman v. Cherokee County Jail et al

Filing 21

ORDER ENTERED: Plaintiff's motions to amend 19 & 20 are denied. Signed by U.S. District Senior Judge Sam A. Crow on 07/27/18. Mailed to pro se party Brian Michael Waterman by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,
Plaintiff,
vs.

Case No. 18-3092-SAC

CHEROKEE COUNTY JAIL, et al.,
Defendants.

O R D E R
This case is before the court upon plaintiff’s motions to
amend.

Doc. Nos. 19 and 20.

Because this case is in its early

stages and service upon defendants has not yet been ordered, the
court treats the motions as presenting additional claims for the
court to screen pursuant to the court’s responsibilities under 28
U.S.C. § 1915A.

Therefore, the court applies the standards for

screening pro se pleadings that the court discussed in a prior
screening order.
In

Doc.

Doc. No. 8.

No.

19,

plaintiff

asks

for

leave

to

amend

the

complaint to allege that his constitutional rights were violated
in April 2018 when he was denied soap and shampoo for over 24 hours
and denied a toothbrush and toothpaste for four or five days.
Doc.

No.

20,

plaintiff

alleges

that

in

October

2017

In
his

constitutional rights were violated when he was kept in his cell
for 17 hours without being able to flush the toilet.

1

Plaintiff

asserts that the water was shut off to his cell after plaintiff
covered his cell walls, including the area of the food port, with
feces.

Plaintiff claims that the water was turned on after

plaintiff agreed to clean the walls himself.

Plaintiff used a

scrubber and water, but he was not given gloves.

He asserts that

dirty water splashed all over him and that he was denied a shower
before he ate his dinner.

He also claims that that there was no

way to wash his hands and that puddles of dirty water collected in
his cell, where he was forced to sit.
Plaintiff is a pretrial detainee.

As such, he has a liberty

interest in freedom from punishment, even though he is detained
pending trial.

Bell v. Wolfish, 441 U.S. 520, 535 (1979).

There

is, however, a de minimus level of impingement upon a detainee’s
liberty interest with which the Constitution is not concerned.
Id. at 539 n.21; Dilworth v. Adams, 841 F.3d 246, 252 (4th Cir.
2016)(acknowledging “de minimus” level exists, but finding it was
exceeded).
The court finds that plaintiff’s claims in Doc. Nos. 19 and
20 do not surpass the de minimus level required for constitutional
consideration. “Temporary discomfort alone is not enough.” Ingram
v.

Cole

County,

846

F.3d

282,

286

(8th

Cir.

2017)(en

banc

reconsideration pending).
Plaintiff alleges he was denied soap, shampoo, toothpaste and
a toothbrush for a limited period of time.
2

The short-term denial

of hygienic items, including toothpaste, toothbrushes and toilet
paper for 72 hours or sometimes longer do not rise to the level of
a constitutional violation.
685 (W.D.Tenn. 1989).

Gilland v. Owens, 718 F.Supp. 665,

See Peyton v. County of Ventura, 2017 WL

6816355 *3 (C.D.Cal. 8/23/2017)(short-term loss of commissary and
visitation privileges is de minimus); see also Gee v. Pacheco, 627
F.3d 1178, 1192 (10th Cir. 2010)(denial of hygiene items for 25
hours and four week periods does not violate Eighth Amendment);
Harris v. Fleming, 839 F.2d 1232, 1235-36 (7th Cir. 1988)(no toilet
paper for five days, no soap, toothbrush and toothpaste for ten
days does not violate Eighth Amendment); Brown v. Stacy, 2016 WL
4014639 *8 (E.D.Ky. 7/26/2016)(denial of soap and toothpaste for
nine days does not violate Eighth Amendment, citing cases involving
much longer deprivations of hygiene items).
Plaintiff

also

alleges

that

his

exposure

to

unsanitary

conditions was for less than a day and could have been shortened
if he had agreed sooner to clean his cell.

These kinds of

allegations are insufficient to state a plausible constitutional
claim. Twenty-four hours in unsanitary conditions is “too short a
time to constitute a due process violation.”
690 F.3d 1017, 1045 (8th Cir. 2012).

Beaulieu v. Ludeman,

A due process violation is

also not shown by four days in a cell with the stench of one’s own
feces where the inmate was offered an opportunity to clean up the
mess.

Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996); see
3

also Wozniak v. Pricardo, 2012 WL 79016 *3-4 (D.Ariz. 1/11/12)(6
hours in a cell with feces smeared on wall before receiving towels
and cleaning solution).

Allegations of water on the floor, bugs,

feces, mold and dirty food port doors were insufficient to allege
an Eighth Amendment claim where inmates are given the opportunity
to clean their cells at least five days a week.
2018 WL 1278197 *7-8 (W.D.Ark. 3/12/2018).

Ward v. Rice,

See also, Dellis v.

Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001)(temporary
stay in a wet cell without a working toilet does not violate Eighth
Amendment); Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir.
1998)(no Eighth Amendment violation stated from incarceration in
a filthy cell with inadequate ventilation for only 48 hours);
Whitnack

v.

Douglas

County,

16

F.3d

954,

958

(8th

Cir.

1994)(deplorably filthy and patently offensive cell with excrement
and vomit not unconstitutional because conditions lasted only for
24 hours).
The court further notes that plaintiff does not have a
constitutional right to a particular amount or type of cleaning
supplies, such as gloves.

Steimel v. Fields, 1995 WL 530610 *3

(D.Kan. 8/21/95); see also Lewis v. Justus, 2016 WL 1555157 *4
(S.D.Ill. 4/18/2016)(denying claim that cleaning supplies were
limited to a mop and water).

Plaintiff does not allege facts

plausibly showing that the denial of gloves or the conditions of
which he complains were punitive and unconstitutional.
4

In summary, for the above-stated reasons, the court finds
that plaintiff’s motions to amend fail to allege facts plausibly
describing a constitutional violation.

Therefore, plaintiff’s

motions to amend – Doc. Nos. 19 and 20 – shall be denied.
IT IS SO ORDERED.
Dated this 27th day of July, 2018, at Topeka, Kansas.

s/Sam A. Crow __________________________
Sam A. Crow, U.S. District Senior Judge

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