Paige v. Murry et al

Filing 102

MEMORANDUM AND ORDER re: 72 MOTION for Summary Judgment filed by Defendant Joe Jones, Defendant David Perkins, Defendant Ricky Alley, Defendant Jarrod Walters, Defendant David Kirkman, Defendant Michael Hart, Defendant Jackie Wate rs, Defendant James Hack, Defendant Heath Cooley, Defendant Jody Arnold, Defendant Jerry Murray, 88 MOTION to Compel filed by Plaintiff Lacey Kurt Paige, 97 PRO SE MOTION to Postpone Summary Judgment Decision Until Adequate Discovery has Been Completed filed by Plaintiff Lacey Kurt Paige. IT IS HEREBY ORDERED that plaintiff's motion to compel (#88) is DENIED as moot. IT IS FURTHER ORDERED that defendants' motion for summary judgment (#72) is DENIED in part and GRANTED in part. IT IS FURTHER ORDERED that defendants maintenance supervisors Ricky Alley, David Kirkman, David Perkins, and Joe Jones are DISMISSED. IT IS FINALLY ORDERED that plaintiff's motion to postpone a summary judgment decision until adequate discovery has been completed (#97) is DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 9/12/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

LACEY PAIGE

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Plaintiff,
vs.
JERRY MURRAY, et al.
Defendants.

Case No. 1:12-cv-40 SNLJ

MEMORANDUM AND ORDER
Pending before the Court is plaintiff’s motion to compel (#88), defendants’ motion
for summary judgment (#72), and plaintiff’s motion to postpone a summary judgment
decision until adequate discovery has been completed (#97).
I.

Factual Background
The following facts are undisputed except where indicated. At all times relevant

to the complaint, plaintiff was incarcerated at the Southeast Correctional Center
(“SECC”) in Charleston, Missouri. On or about October 9, 2010, plaintiff discovered
fluid leaking from the wall of his cell and reported it to defendant James Hack, a
correctional officer. The fluid was brownish with the consistency of water and increased
gradually, and plaintiff says that it smelled like sewage. Defendants do not identify the
source of the leak or dispute that it smelled like sewage.
Defendant Hack indicated that he would report the leak, and he states that he
reported the leak to the “bubble” officer. Defendant Jarrod Walters, another correctional

officer, also states that he reported a leak in plaintiff’s cell to a bubble officer. Plaintiff
requested cleaning supplies, but defendants explained that certain cleaning supplies,
including mops, cannot be distributed to inmates for security reasons. Instead, if an
inmate has water in his cell, defendants state that old sheets and towels may be used to
soak up the water. Plaintiff and his cellmate used their state-issued sheets and towels to
soak up the water.
Defendants state that correctional officers do not place work orders to
maintenance. Rather, they make such requests to the “bubble officers,” and maintenance
supervisors make repairs to cells when they get a work order. Plaintiff testified that he
spoke with a maintenance repairman, but does not know who that maintenance repairman
was. Plaintiff never spoke with defendant maintenance supervisors Ricky Alley, David
Kirkman, David Perkins, and Joe Jones from October 9, 2010 through November 8, 2010
regarding a leak in his cell.
Plaintiff testified that he developed an itchy rash because of the leak in his cell. A
nurse examined Plaintiff’s rash and provided him with an antiitch cream, which relieved
his symptoms. Plaintiff did not request any further medical treatment.
The leak in Plaintiff’s cell was repaired on or about November 10 or 12, 2010,
approximately 31 days after Plaintiff reported a leak. The Work Request was requested
by defendant corrections officer Jerry Murray on November 8, 2010 at 4:41 a.m., and it
was completed on November 12, 2010 at 10:51 a.m.

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Plaintiff filed this lawsuit on March 5, 2012 against correctional officers Jerry
Murray, Jody Arnold, Heath Cooley, James Hack, Michael Hart, Jarrod Walters, and
Jackie Waters (in their individual and official capacities), and maintenance supervisors
Ricky Alley, David Kirkman, David Perkins, and Joe Jones (in their official capacities
only)1. All defendants have moved for summary judgment.
II.

Legal Standard
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment

if all of the information before the court demonstrates that “there is no genuine issue as to
material fact and the moving party is entitled to judgment as a matter of law.” Poller v.
Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the
moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this
burden, the nonmoving party must do more than show that there is some doubt as to the
facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of

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Plaintiff does not specify in what capacity he names defendants Alley, Kirkman, Perkins,
or Jones. The Eighth Circuit has held that unless a plaintiff is unambiguous in this regard, the
Court presumes that defendants are sued in their official capacities. Johnson v. Outboard Marine
Corp., 172 F.3d 531, 536 (8th Cir. 1999).
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any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in
favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541
F.2d 207, 210 (8th Cir. 1976). With these principles in mind, the Court turns to the
discussion.
III.

Discussion
Government officials have a duty under the Eighth Amendment to provide

humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In
order to prevail on his condition of confinement claim, plaintiff must show that the
conditions constituted a substantial risk of serious harm or a deprivation of the minimal
civilized measure of life’s necessities. Crow v. Montgomery, 403 F.3d 598, 602 (8th
Cir. 2005); Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir. 1998); Frye v. Pettis
County Sheriff Dept., 41 Fed. Appx. 906, 2002 WL 1726919, *1 (8th Cir. 2002). The
Constitution does not mandate comfortable prisons. Wilson v. Seiter, 501 U.S. 294, 298
(1991). Prison conditions that create temporary inconveniences or discomforts or that
make confinement unpleasant do not constitute Eighth Amendment violations. White v.
Nix, 805 F. Supp. 721, 724 (S.D. Iowa 1992).
Defendants state that plaintiff had “some water in his cell for a period of
approximately thirty-one days, which he soaked up with towels.” (#73 at 6.) Therefore,
defendants maintain, plaintiff cannot show the that the conditions to which he was

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subjected either constituted a substantial risk of serious harm or a deprivation of the
minimal civilized measure of life’s necessities.
Plaintiff disagrees. The Court notes that plaintiff did not respond to the
defendants’ statement of undisputed facts paragraph by paragraph, but he did provide a
“statement of material facts in opposition of defendants’ motion.” (#92.) In the interests
of justice and fairness, the Court has reviewed the submissions of both parties. Even if
the Court accepted the defendants’ statement of facts as undisputed, however, the
defendants’ statement of facts does not entitle them to summary judgment because they
omit material facts raised by plaintiff.
First, the defendants’ recitation of the facts does not include plaintiff’s contention
(which has been consistent throughout this proceeding) that the fluid leaking into his cell
had the consistency of water but was brown and foul-smelling, suggesting it was sewage.
Defendants do not identify the source of the leak, nor do they affirmatively state that it
originated from the clean water line and not a sewage drain. Further, defendants state that
plaintiff and his cellmate used “state-issued sheets and towels” to mop up the mess, citing
plaintiff’s own complaint. (#73-1 at ¶8 (citing #1 at 9).) But plaintiff and his cellmate —
despite their requests for cleaning supplies — were left to clean the mess with the sheets
and towels with which they also slept and bathed. Defendants do not state that is untrue.
Rather, defendants contend that because plaintiff had a sink and running water, he was
free to mop up raw sewage2 and then “rinse” his sheets and towels. (#95 at 3-4.)
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Defendants state that plaintiff describes the fluid as “brown and foul-smelling” but that
plaintiff does not allege there were feces present. A small leak in a sewage drain would naturally
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The Constitution does not mandate “comfortable prisons,” but the Eighth
Amendment “prohibits punishments that ‘deprive inmates of the minimal civilized
measure of life’s necessities” such as “reasonably adequate sanitation, personal hygiene,
and laundry privileges, particularly over a lengthy course of time.” Howard v. Adkison,
887 F.2d 134, 137 (8th Cir. 1989) (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)). Short durations of poor sanitation in a prison cell may not rise to the level of a
Constitutional violation, particularly where cleaning supplies are available. See, e.g.,
Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994) (“the intolerable
conditions lasted not more than 24 hours before the availability of adequate cleaning
supplies would make them tolerable”); White v. Nix, 7 F.3d 120, 121 (8th Cir.1993)
(holding no constitutional violation where unsanitary conditions lasted eleven days and
cleaning supplies available). However, for example, requiring inmates to work for even
ten minutes in “a shower of human excrement without protective clothing and equipment
would be inconsistent with any standard of decency.” Fruit v. Norris, 905 F.2d 1147,
1151 (8th Cir. 1990); cf. Good v. Olk–Long, 71 F.3d 314, 316 (8th Cir. 1995)
(distinguishing Fruit because inmates were given protective eyewear, gloves, and boots
while cleaning sewage back-up). “Conditions, such as a filthy cell, may ‘be tolerable for
a few days and intolerably cruel for weeks or months.’ ” Howard, 887 F.2d at 137
(quoting Hutto v. Finney, 437 U.S. 678, 687 (1978)).

allow only liquid through. The Court is not comforted by the absence of visible fecal matter in
light of plaintiff’s sworn statements about the nature of the leak. As indicated above, defendants
never reveal the source of the leak, let alone do they assure the Court or plaintiff that the leak
occurred in a clean water line.
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Here, it appears undisputed that the plaintiff had to sop up foul-smelling, brown
liquid from his cell floor with his own sheets and towels and wring the liquid into his
toilet (presumably with his bare hands). Then he had to reuse those same sheets and
towels for daily living activities, and plaintiff was rarely permitted to leave the cell.
Plaintiff experienced an itchy rash from exposure to the liquid. These conditions
persisted for a month.
The Eighth Circuit suggests that a constitutional violation is found only where the
“conditions are of proven adverse consequence to the health or other basic human needs
of the plaintiff.” Whitnack, 16 F.3d at 958. In Whitnack, for example, confinement in a
filthy cell lasted for 24 hours until cleaning supplies were provided, and “given the
brevity of their confinement,” no constitutional violation was found. Id. Conditions in
the Whitlock cell were described by the Court as “deplorable.” Id. The “toilet was
covered with dried feces on both the inside and outside, the sink was covered with hair
and vomit, the floor was covered with garbage and rotting food, and the walls were
covered with dried human mucus.” Id. at 956. But there, the plaintiff prisoners were
given limited cleaning supplies within hours and the next day were given cleaning
supplies such as a broom, dust pan, sponge, mop, toilet brush, and chemical cleaners. Id.
A plaintiffs’ jury verdict was overturned by the Eighth Circuit because there was no
proven adverse consequence to plaintiffs’ health or other basic human need due to the
short duration of the deplorable conditions. But the Court of Appeals suggested that

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longer exposure to a “filthy cell” without cleaning supplies — such as “weeks or months”
— could be “intolerably cruel.” Id. at 958 (citing Hutto, 437 U.S. at 687).
Here, plaintiff has at least raised a question of fact as to whether the conditions
were of proven adverse consequence to health and human needs. He was required to
walk through the brown, foul-smelling liquid any time he left his bunk, including to
retrieve his meals, and he had only thin shower shoes (flip-flops) to wear on his feet. He
had to reuse the linens he used to clean up the floor. He developed a documented itchy
rash. The cases upon which defendants rely in support of their position are
distinguishable because in those cases, the prisoner plaintiffs were supplied with — at a
minimum — additional linens with which to mop up the foul liquid. (See #95 at 4, 6
(citing Garner v. Sanders, No. 08-6031, 2009 WL 2905586 (W.D. Ark. Sept. 4, 2009);
Frye v. Pettis Cnty. Sheriff Dep’t, 41 Fed. App’x 906, 908 (8th Cir. 2002)).
Looking to each of the defendants, it does appear that some are entitled to
dismissal. The complaint is silent as to whether maintenance supervisors Ricky Alley,
David Kirkman, David Perkins, and Joe Jones are being sued in their official or
individual capacities. Where a complaint is silent about the capacity in which the
defendant is sued, the Court must interpret the complaint as including only
official-capacity claims. Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th
Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a government
official in his or her official capacity is the equivalent of naming the government entity
that employs the official, in this case the State of Missouri. Will v. Michigan Dept of

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State Police, 491 U.S. 58, 71 (1989). Neither a State nor its officials acting in their
official capacity are persons under § 1983. Id. As a result, claims against defendants
Alley, Kirkman, Perkins, and Jones will be dismissed. In addition, the claims made
against defendants Murray, Arnold, Cooley, Hack, Hart, Walters, and Waters in their
official capacities will be dismissed.
Correctional officer defendants Hack and Walters specifically argue that they are
entitled to summary judgment because they reported the leak to the bubble officer, who
was apparently responsible for placing a work order. Defendants Hack and Walters state
that their obligations ended after they reported the leak because their duties did not
include reporting work orders or conducting repairs. Defendants state that, as for the other
five defendants, the evidence would show at trial that those remaining defendants did not
have any knowledge of a “significant” water leak, and thus they had no opportunity or
reason to remedy the problem. However, plaintiff states that he repeatedly told
defendants Hack, Arnold, Waters, Walters, Hart, Murray, and Cooley about the leak and
repeatedly asked for cleaning supplies or to be moved to another cell pending repair of
the (apparent) sewer leak. Plaintiff also specifically stated that defendants Hack, Walters,
and Murray “made jokes to plaintiff about the sewer water in his cell and how bad it
smelled.” The work order that resulted in repair of the leak was dated November 8, so
there is no dispute that a work order was not promptly placed when plaintiff first
complained on October 9. To the extent the correctional officers informed the “bubble
officer” as required, there is at least an issue of fact as to whether they should have

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followed up on the work order request or supplied plaintiff with, for example, short term
use of cleaning supplies such as gloves or extra towels. However, the plaintiff’s evidence
suggests that defendants did nothing except make jokes about the situation until, plaintiff
says, his cellmate slipped in the sewer water after getting out of the top bunk to retrieve
his medication. Plaintiff says that incident caused defendant Murray to report the sewer
leak on November 8. It is significant to this Court’s determination that, although the
defendants state they do not write work orders3, one defendant — Murray — actually
submitted the work order for the leak in plaintiff’s cell. Defendants do not explain this
apparent discrepancy.
The Court notes that the plaintiff has tried diligently to determine which
correctional officers would have been present and who was the “bubble officer”
allegedly responsible for placing the work orders. Defendants — although they state in
affidavits that they informed the “bubble officer” of the leak — do not identify to whom
they reported. Plaintiff has filed another motion to compel (#88) and a motion seeking a
stay of the summary judgment decision (#97). It appears that defendants supplied
plaintiff with the shift schedule for the days in question, but it is not clear to the Court just
who was the responsible bubble officer.
The Court will deny summary judgment as to the seven named correctional
officers in their individual capacities. Counsel will be appointed for plaintiff in a separate
and later-dated order, and discovery will be re-opened.

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Defendants state that “Correctional officers do not place work orders to maintenance.
The correct procedure is to make such requests to bubble officers.” (#73-1 at ¶ 9.)
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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to compel (#88) is DENIED
as moot.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment
(#72) is DENIED in part and GRANTED in part.
IT IS FURTHER ORDERED that defendants maintenance supervisors Ricky
Alley, David Kirkman, David Perkins, and Joe Jones are DISMISSED.
IT IS FINALLY ORDERED that plaintiff’s motion to postpone a summary
judgment decision until adequate discovery has been completed (#97) is DENIED as
moot.
Dated this 12th

day of September, 2014.

____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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