Thomas-El v. Francis et al

Filing 72

MEMORANDUM AND ORDER re: 59 PRO SE MOTION Deny the Use of Deposition of Plaintiff DeAngelo Thomas-El filed by Plaintiff DeAngelo Thomas-El, 62 MOTION for Summary Judgment filed by Defendant Nicole Francis, Defendant Jason Lee, [5 8] MOTION for Summary Judgment filed by Plaintiff DeAngelo Thomas-El: IT IS HEREBY ORDERED that plaintiff's motion to Deny the Use of Deposition of Plaintiff [Doc. 59] is DENIED as moot. IT IS FURTHER ORDERED that defendants' motion fo r summary judgment [Doc. 62] is GRANTED in part and DENIED in part. IT IS FINALLY ORDERED that plaintiff's motion for summary judgment [Doc. 58] is GRANTED in part and DENIED in part. Signed by District Judge Stephen N. Limbaugh, Jr on 11/17/2022. (CMH)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEANGELO THOMAS-EL,
Plaintiff,
v.
NICOLE FRANCIS, et al.,
Defendants.

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Case No. 4:20-CV-589-SNLJ

MEMORANDUM AND ORDER
Plaintiff DeAngelo Thomas-El, pro se, is a prisoner within the Missouri Department
of Corrections (“MDOC”). He brings this lawsuit under 42 U.S.C. § 1983, alleging that
defendants Nicole Francis and Jason Lee violated his constitutional rights by denying him
basic hygienic supplies of toothpaste, soap, and deodorant. Plaintiff and defendants filed
competing motions for summary judgment. Compare [Doc. 58] (plaintiff’s) with [Doc. 62]
(defendants’). Plaintiff filed a response to defendant’s motion. [Doc. 63.] After some
delay, defendant filed a response to plaintiff’s motion. [Doc. 68.]

Plaintiff did not file a

reply to defendants’ response [Doc. 68], and the time for doing so has now passed. For
reasons stated below, plaintiff’s motion will be granted in part and denied and part, and
defendants’ motion will be granted in part and denied in part. Furthermore, plaintiff’s
motion to Deny the Use of Deposition of Plaintiff DeAngelo Thomas-El is denied as moot.

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I.

Plaintiff’s Motion to Deny the Use of Deposition of Plaintiff DeAngelo
Thomas-El
Plaintiff filed a motion to deny defendants the use of plaintiff’s deposition because,

as plaintiff argues, he cannot afford to buy a transcript of the deposition and it would be
unfair for defendants to have use of the deposition but not plaintiff. [Doc. 59.] In short, if
plaintiff cannot have it, nobody should have it. Plaintiff attached a full copy of the
deposition to his response to defendant’s motion for summary judgment. [Doc. 63.] Thus,
plaintiff has obtained a copy of the deposition transcript. Therefore, plaintiff’s motion will
be denied as moot.

II.

Plaintiff’s and Defendants’ Motions for Summary Judgment
A. Factual Background
The discussed facts are undisputed unless otherwise indicated. At all times relevant

to this action, plaintiff was an inmate with MDOC and confined in the administrative
segregation housing unit at Potosi Correctional Center in Potosi, Missouri. Plaintiff never
had more than $2.20 per month in his offender account, and plaintiff needed but could not
afford basic hygiene items. Plaintiff contends that he was an indigent offender under the
prison’s policy because he could not afford to buy hygienic items. Defendants admit that
plaintiff was in need of basic hygiene items and could not afford basic hygiene items, but
they contend that plaintiff was not an indigent offender under the institutional policy. [Doc.
62-2 at 1–2, 5; Doc. 68 at 2.]

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Under the policy, “Inmates may request basic hygiene items if: 1) The inmate has
not had funds within the previous 30 days, [and] 2) the inmate has spent his/her monthly
wage on needed legal postage or legal supplies, is in need of basic hygiene items and does
not have funds to pay for basic hygiene items.” [Doc. 62-6] (cleaned up) (emphasis added).
According to defendants:
Under institutional policy, an inmate may only request basic hygiene items
if the inmate has not had funds within the past 30 days, the inmate has spent
their entire monthly wage on necessary legal supplies, and the inmate is in
need of basic hygiene items but does not have the funds to pay for them.
While Plaintiff had no more than $2.20 in his offender account per month
and was in need of basic hygiene items, under policy Plaintiff was not
considered indigent because he spent all of his monthly wage on
discretionary legal filing fees. Therefore, as discussed in his Grieve Appeal
Response, Plaintiff was not entitled to request basic hygiene items. (Exhibit
D, Missouri Department of Corrections Access to Basic Hygiene Items
Institutional Policy 8-6.1(III)(B)(1)-(2); Exhibit F, Grievance Appeal
Response dated March 16, 2020).
Plaintiff filed a complaint that defendant Francis did not give him hygiene items
because he was indigent. [Doc. 58-5 at 4.] In response to this complaint, investigating
staff stated that “per policy [plaintiff] did not qualify for indigent status. State and Federal
filing fees are considered discretionary spends.” Id. Plaintiff filed a grievance, and
reviewing officials gave a similar response: “Information submitted to this review indicates
[plaintiff has] incurred debts owed to state or federal filing fees or other discretionary
spending which have been attached to [plaintiff’s] offender funds. Such discretionary

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spending is not cause for spending assistance.” [Doc. 58-6 at 2.] Thus, under the policy,
plaintiff did not qualify for “indigent status,” so the prison did not give him hygiene items. 1
On September 3, 2019, plaintiff sent a letter to defendant Francis requesting basic
hygiene supplies, stating that he had “enough soap, toothpast[e] and deodorant to last a
couple weeks” but he was worried of running out. [Doc. 58-3.]
Plaintiff alleges that on September 13, 2019, while defendant Francis made her
rounds, he asked about his request for hygiene items and she said, “you’re beat because
you spend all your money on filing fees.” 2 Defendant Francis does not deny that she talked
with plaintiff, but only denies the specific wording that she told plaintiff he was “beat.”
[Doc. 62-7 at 2.] Defendant Francis does not recall any specific conversation, but that if
she did speak with plaintiff, she would have told him that he may not qualify for free
hygiene items because he did not meet the institutional definition of “indigent.” Id. At the
very least, some conversation took place and defendant Francis explained why plaintiff
was not entitled to free hygiene items.

MDOC apparently maintains a distinction that unlike “needed postage and legal
supplies,” MDOC is not constitutionally required to provide enough funds in a monthly
allowance to pay for “discretionary” filing fees. See Myers v. Hundley, 101 F.3d 542, 544
(8th Cir. 1996). In any event, defendants do not rely on this distinction in either of their
briefs. Instead, defendants focus entirely on the elements of plaintiff’s Eighth Amendment
cruel and unusual punishment action, that is, whether plaintiff faced a substantial risk of
serious harm and whether defendants acted with deliberate indifference in failing to address
that risk.
1

According to plaintiff, “beat” is a term “they use when they say you ain’t going to get
nothing.” [Doc. 62, Ex. E at 10.]

2

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On October 30, 2019, while defendant made her rounds, plaintiff asked defendant
Francis about the status of his requested hygiene items. Plaintiff asserts that defendant
Francis told him, “you’re beat, I already told you that.” Defendant Francis again denies
ever telling plaintiff he was “beat.” She also denies that she denied plaintiff basic hygiene
items. Defendant Francis’s employment at the Potosi Correctional Center ended on
December 19, 2019.
On December 23, 2019, plaintiff sent a letter to defendant Lee asking for basic
hygiene items. On January 24, 2020, plaintiff sent defendant Lee a letter asking for hygiene
items and cited Jones v. Huffman-Phillips as case law showing it was unconstitutional to
deprive plaintiff of hygiene items long-term. [Doc. 58-4] (citing No. 1:12-CV-70-LMB,
2013 WL 5442906 (E.D. Mo. Sept. 30, 2013), on reconsideration in part, No. 1:12-CV70-LMB, 2014 WL 651360 (E.D. Mo. Feb. 19, 2014)). Plaintiff asserts that, on January
29, 2020, he asked defendant Lee about the requested items and defendant Lee responded,
“you’re not indigent because you spend your money on filing fees.” Defendant Lee does
not know if he was working that day, but denies he ever told plaintiff that he was not
indigent for spending his money on filing fees.
Plaintiff claims that defendants had actual knowledge of the law governing an
inmate’s right to have basic hygienic care because he asserted that right in his informal
resolution requests and grievances and cited to case law. [Doc. 58 at 3.] Defendants deny
having any knowledge of plaintiff’s request for hygiene products or that they knew of the
IRRs. Defendant Francis says she did not respond to the IRR because it was not her duty
to do so. [Doc. 62-4 at 2.] Though defendants deny the claim that they personally denied
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plaintiff access to hygiene items, they do not deny plaintiff’s claim that he was without
hygiene items roughly between September 17, 2019 through January 29, 2020: a period of
four and one half months split between the two defendants. [Doc. 62-2 at 3–4.] Plaintiff
also alleges that he even went longer without hygiene items, even into January 2021, but
plaintiff does not claim that the two defendants were responsible for his lack of access to
hygiene products going beyond January 2020. [Doc. 62-7 at 24.] Defendants deny that
they ever actively blocked plaintiff’s access to hygienic items. Both parties agree that
defendants never gave plaintiff any of his requested hygiene items.
Plaintiff claims that he had to perform oral and anal sex acts on other inmates to
obtain hygienic items. Defendants do not deny whether plaintiff actually engaged in such
sex acts, but they do deny that they had personal knowledge that plaintiff would perform
sex acts to get hygiene items. [Doc. 62-2 at 6.]

Regardless, all parties recognize that

plaintiff did not have deodorant or toothpaste for months. [Doc. 62-2 at 1–2.] But plaintiff
was given one small bar of soap, which was enough soap for plaintiff to shower once per
week and to wash his hands after using the bathroom. [Doc. 62-7 at 12] (plaintiff’s
deposition). As a result of having insufficient access to hygienic items, he had body odor,
toothaches, and dental cavities. Though plaintiff got dental care that helped with the
toothaches, he still suffered cavities in his teeth.
Additionally, plaintiff alleges that he was beat up by a cellmate over his body odor,
“resulting in me having a swollen jaw, migraine headaches, and being unable to chew food
for approximately six days.” [Doc. 1 at 9.] In his deposition, plaintiff alleges that he was
“beat up twice” by cellmates because his body odor was so bad. [Doc. 62-7 at 24.] He
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also testified that he suffered discomfort from having to perform oral and anal sex for
toothpaste, deodorant, and soap. Id. at 24–25. Defendants do not contest these facts.
B. Legal Standard
Under Federal Rule of Civil Procedure 56(a), a district court may grant a motion for
summary judgment if all the information before the court demonstrates that “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the
moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268,
273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party
bears the burden of setting forth affirmative evidence and specific facts by affidavit and
other evidence showing that there is a genuine dispute of a material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324. “A dispute about
a material fact is ‘genuine’ only ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Herring v. Canada Life Assur. Co., 207 F.3d 1026,
1030 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). A party resisting summary
judgment has the burden to designate the specific facts that create a triable controversy.
See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). Self-serving,
conclusory statements without support are not sufficient to defeat summary judgment.
Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).
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 any
inferences that logically can be drawn from those facts. Matsushita, 475 U.S. at 587;
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Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). 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). This motion is fully
briefed. All parties have access to plaintiff’s medical records and all parties have had the
chance to submit affidavits. Plaintiff has not articulated any facts indicating that further
discovery is necessary to support his claim. See Dulany v. Carnahan, 132 F.3d 1234, 1238
(8th Cir. 1997). The Court determines this motion is ripe for summary judgment.
When parties file cross motions for summary judgment, each summary judgment
motion must be evaluated independently to determine whether a genuine issue of material
fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v.
Federal-Mogul Ignition Co., 519 F. Supp. 2d 929, 942 (S.D. Iowa 2007). “[T]he filing of
cross motions for summary judgment does not necessarily indicate that there is no dispute
as to a material fact, or have the effect of submitting the cause to a plenary determination
on the merits.” Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir.
1983). “The usual Rule 56 standard applies to cross-motions for summary judgment.” Int’l
Brotherhood of Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402,
404 (7th Cir. 2002).

C. Discussion
In a conditions of confinement case, such as this one, a prison official is liable for
violating an inmate’s Eighth Amendment rights when two requirements are met: one
objective and one subjective. First, a plaintiff must show that the alleged deprivation was
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objectively sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). This
requirement is met if the alleged deprivation denied plaintiff “the minimal civilized
measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Second, a
plaintiff must show that the defendant acted with deliberate indifference, meaning that the
defendant actually knew of or should have known and deliberately disregarded an
excessive risk to inmate health or safety. Farmer, 511 U.S. at 834; Williams v. Delo, 49
F.3d 442, 445 (8th Cir. 1995).

1. The Alleged Constitutional Violation
“Generally, whether a constitutional violation occurs is a question of law,” but
whether “the eighth amendment has been violated is a mixed question of fact and law.”
Porth v. Farrier, 934 F.2d 154, 156 (8th Cir. 1991). The Eighth Amendment prohibits
punishments that are unnecessary and wanton infliction of pain, which include inflictions
that are totally without penological justification. Rhodes v. Chapman, 452 U.S. 337, 345–
46 (1981) (citing cases). Certain conditions that “deprive inmates of the minimal civilized
measure of life's necessities . . . . could be cruel and unusual under the contemporary
standard of decency.” Id. at 347 (citing Estelle v. Gamble, 429 U.S. 97, 103–04 (1976)).
“[A] long-term, repeated deprivation of adequate hygiene supplies violates inmates' Eighth
Amendment rights.” Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996) (citing Howard
v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989)). Though inmates cannot expect the
amenities or conveniences of hotel service, they are “entitled to reasonably adequate

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sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of
time.” Howard, 887 F.2d at 137.
Though routine discomfort and temporarily harsh conditions do not give rise to a
violation, see Hudson v. McMillian, 503 U.S. 1, 9 (1992), long-term, repeated denials of
adequate hygiene supplies can give rise to an Eighth Amendment violation. Myers, 101
F.3d at 544. The length of time an inmate suffered the deprivation is crucial in determining
whether there has been a constitutional violation. Filthy living conditions may be tolerable
for a few days, Howard v. Precythe, No. 4:21-CV-730-MTS, 2022 WL 670130 (E.D. Mo.
Mar. 7, 2022) (depriving plaintiff of a shower for 14 days did not give rise to a
constitutional violation), but intolerable over weeks and months. Howard v. Adkison, 887
F.2d 134, 137 (8th Cir. 1989) (quoting Hutto v. Finney, 437 U.S. 678, 687 (1978)) (noting
plaintiff lived with filthy conditions for two years, including a cell covered with human
waste; a urine-stained mattress for ten months; and a denial of laundry service for five
months). Thus, it has become well established among the district courts of this Circuit that
“a longterm, repeated deprivation of adequate hygiene supplies violates the Eighth
Amendment rights of prison inmates.” Jones-El v. Godert, No. 2:18-CV-65-JMB, 2019
U.S. Dist. Lexis 213247, at *41 (E.D. Mo. Dec. 15, 2019) (citing Myers, 101 F.3d at 544).
In Myers, inmates complained that they were given too little “idle pay” to pay for
both personal hygiene items and legal supply fees, so they opted to purchase hygienic
equipment and forgo legal supplies. 101 F.3d at 543. Here, the situation appears reversed:
plaintiff could not afford both his admittedly expensive legal filing and supply fees and to
pay for his personal hygiene items, so he opted to pay for the legal supplies in lieu of
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hygienic supplies. This Circuit recognizes the precarious situation of an inmate who, due
to indigency, must choose between good hygiene and pursuing legal claims. Cf. Myers,
101 F.3d 542 (holding that there was factual dispute whether inmate was “forced to choose
between being clean and pursuing legal claims”).
Under this Circuit’s case law—that long-term deprivation of basic hygiene items is
a constitutional violation—plaintiff has already made out a claim for a constitutional
violation. Thomas-El v. Francis, No. 4:20-CV-589-SNLJ, 2020 WL 4597124 (E.D. Mo.
Aug. 11, 2020); see also Jones v. Huffman-Phillips, No. 1:12-CV-70-LMB, 2013 WL
5442906, at *6 (E.D. Mo. Sept. 30, 2013); Jones-El v. Godert, 2019 U.S. Dist. Lexis
213247. The government’s argument that plaintiff “does not allege any deprivation
implicating a ‘minimal civilized measure of life’s necessities,’” [Doc. 62-1 at 7] is wrong.
Plaintiff already has sufficiently alleged a deprivation that goes beyond mere discomfort.
See Thomas-El, 2020 WL 4597124, at *3. The only remaining question is whether there
is a disputed fact issue as to the constitutional violation or—if there be no dispute of
material facts—whether this Court should grant summary judgment to defendants or
plaintiff.
First, the Court agrees with defendants that plaintiff’s lack of deodorant and soap
does not amount to a constitutional violation. In fact, plaintiff testified that he was given
one small bar of soap per week, which allowed him to take one shower per week and wash
his hands as needed.

Though this did not enable plaintiff to shower as often as he would

have liked, this inconvenience only amounts to the “routine discomfort” that does not result
in a constitutional violation. It would be a different story if plaintiff had no access to soap
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over the course of five months, but the facts show that plaintiff could occasionally shower
with soap and wash his hands as needed. Even though plaintiff had body odor stemming
from a lack of soap and deodorant, body odor alone is not so egregious an injury to be cruel
and unusual punishment. See Avery v. Ferguson, Civ. No. 8-5091, 2010 WL 3829433, at
12–13 (W.D. Ark. Sept. 3, 2010), report and recommendation adopted, Civ. No. 8-5091,
2010 WL 3829423 (W.D. Ark. Sept. 24, 2010) (holding that officials did not violate
inmate’s rights simply because he could not shave or cut his hair when he wanted to).
Plaintiff claims that he was beaten up because of his body odor and that he had to
engage in sex acts for deodorant, but he admits that any sex acts that he performed were
voluntary and cannot be traced to defendants’ lack of giving him soap or deodorant.
Furthermore, it is questionable whether these alleged sex acts actually occurred between
September 2019 and January 2020, the time period plaintiff complains of. In fact,
plaintiff’s attached affidavit suggests that he did not begin his sex-for-items transactions
until July 2020, which is well outside the complained-of time period. [Doc. 58-2 at 2–3.]
Tellingly, there is no evidence—outside of plaintiff’s own unsubstantiated claims—
that shows that plaintiff was beaten up specifically for body odor or that these beatings are
attributable to defendants’ conduct. Even then, plaintiff failed to put on any evidence to
indicate that defendants knew or should have known that, without access to deodorant,
plaintiff’s body odor would become so bad that his cellmates would beat him up. Although
plaintiff alleges that he sent a letter to defendant Francis on September 16, 2019, stating
that he would have to resort to prostitution to obtain needed-hygiene items [Doc. 1 at 17],
he failed to provide a copy of the letter to verify these claims. Additionally, defendants
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deny having any personal knowledge that plaintiff would engage in sexual favors to obtain
hygiene items, nor has plaintiff shown any evidence that defendants had such knowledge.
See Jones, 2013 WL 5442906, at *7 (“[P]laintiff has failed to establish a violation of his
constitutional rights as a result of the MDOC Defendants' failure to provide deodorant or
shower shoes. Plaintiff offers no evidence of any damages resulting from not having these
items.”).
Accordingly, the court will only consider whether plaintiff is entitled to summary
judgment on being denied toothpaste for the alleged tooth ache and cavity. Necessary
hygiene items include toothpaste. Myers, 101 F.3d at 543. “The denial of basic hygiene
items such as a toothbrush and toothpaste [for months] transcends mere discomfort or
temporary adverse conditions.” Jones v. Huffman-Philips, 2013 WL 5442906, at *7; see
also Jones-El v. Godert, 2019 U.S. Dist. LEXIS 213247, at *38–41. Plaintiff alleges that
he was denied toothpaste for four and one half months and, consequently, he suffered from
toothaches and cavities. He provides a medical record showing his complaints of tooth
decay and cavities. [Doc. 58-8.] Defendants admit that a lack of toothpaste caused
plaintiff’s injuries in their uncontroverted statement of material facts: “Plaintiff further
sustained toothaches as a result of not having toothpaste.” [Doc. 62-2 at 7] (emphasis
added). Defendants also admit that plaintiff suffers from cavities, an ongoing injury as a
result of not having toothpaste. Id. at 8. These admissions put the issue beyond dispute.
In arguing that plaintiff did not suffer any injury from denial of toothpaste,
defendants cite to Myers v. Hundley for the proposition that “inmates must specifically
assert that the amounts left over from their [prison] allowances after purchasing personal
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necessities caused actual injury [because of lack of access to hygiene items].” [Doc. 68 at
10] (citing 101 F.3d 542, 544 (8th Cir. 1996)). Myers was not just a case about an
insufficient amount of inmate allowances, but that denying inmates access to hygiene
products is a Constitutional violation for whatever the reason: including denying inmates
such hygiene products because they spent their allowances elsewhere. See Jones, 2013
WL 5442906, at *9–10 (citing Myers, 101 F.3d at 544) (denying defendant’s motion for
summary judgment because plaintiff had alleged enough facts to establish that denial of
toothpaste and toothbrush led to “great pain to his teeth, deterioration of his teeth and gums,
looseness of his teeth, bleeding teeth and gums, potential loss of his two front teeth”). Also,
plaintiff specifically asserted that amounts leftover from his prison account were
insufficient to buy both legal supplies and basic hygiene items, a fact that defendants admit.
[Doc. 62-2 at 2] (“[Plaintiff] had no more than $2.20 in his offender account per month and
was in need of basic hygiene items. . . .”); [Doc. 68 at 2] (“[Plaintiff] had no more than
$2.20 in his offender account per month and was in need of basic hygiene items. . . .”);
[Doc. 58-1] (plaintiff’s sales history account sheet, showing that he spent his money on
legal supplies).
Defendants argue that cavities and toothaches posed no risk of substantial harm to
plaintiff. [Doc. 68 at 11.] This Court disagrees. “[A] tooth cavity is a degenerative
condition, and if it is left untreated indefinitely, it is likely to produce agony and to require
more invasive and painful treatments, such as root canal therapy or extraction.” Harrison
v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (citing 1993 Public Health Reports 1993, U.S.
Dept. of Health and Human Services, Pub. No. 108: 657–672, Toward Improving the Oral
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Health of Americans: an Overview of Oral Health Status and Care Delivery 3).
“Consequently, because a tooth cavity will degenerate with increasingly serious
implications if neglected over sufficient time, it presents a ‘serious medical need.’ . . .” Id.
at 137. A lack of access to toothpaste can create a serious medical need. Cannata v. Hoag,
No. 3:21-CV-5307-BJR-DWC, 2022 WL 2134496, at *6–8 (W.D. Wash. Mar. 8, 2022)
(discussing the objectively serious medical need for toothpaste). Critically, defendants
concede that plaintiff’s toothaches and cavities were caused by a lack of access to
toothpaste [Doc. 62-2 at 7; Doc. 68 at 8.] Plaintiff testified that he needed medical
treatment for his tooth problems, which defendants do not dispute. He has provided a
record showing that he received medical treatment for his tooth problems, which
defendants do not dispute. [Doc. 58-8.]
Later on, defendants argue that plaintiff failed “to provide any evidence that the lack
of toothpaste during the time period alleged in his Complaint caused such cavities.” [Doc.
62-1 at 8.] This is true, but irrelevant, because defendants have already admitted that a
lack of toothpaste caused such cavities. An admitted fact shows that there is no dispute as
to that fact. E.D.Mo. L.R. 4.01(E) (“All matters set forth in the moving party’s Statement
of Uncontroverted Material Facts shall be deemed admitted for purposes of summary
judgment unless specifically controverted by the opposing party.”). Thus, plaintiff did not
need to present any evidence on causation because the parties do not dispute the fact that
plaintiff got cavities and toothaches, nor do they dispute that plaintiff’s injuries came from
lack of toothpaste.

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Neither does the prison’s labeling of plaintiff as “non-indigent” shield defendants
from liability. A prison following its own policy to deny basic hygiene items to inmates
who do not meet that prison’s definition of “indigent” does not allow the prison to dodge
its Constitutional duty to provide basic hygiene items to inmates. See Myers, 101 F.3d at
544 (“Prisons may either regularly provide [hygiene] supplies to inmates free of charge, or
they may give inmates a sufficient allowance with which to buy them [while still being
able to pay for legal mail.]”) (emphasis added). In any event, the defendants do not argue
otherwise.
Under this Circuit’s standard, prison officials are not required to furnish any and all
hygiene items to inmates and in whatever quantities that inmates demand. For instance,
defendants did not violate plaintiff’s Constitutional rights when plaintiff went without extra
soap or deodorant, even if this deprivation was unseemly. But prison officials must give
inmates those bare necessities to maintain their hygiene and prevent illness: toothpaste
being one of them. See Howard, 887 F.2d at 137 (holding that denial of basic hygiene and
sanitation are inconsistent with standards of decency, not just mere inconveniences);
Myers, 101 F.3d at 543–44.
In sum, defendants put plaintiff in the position of having to choose between his legal
rights and his personal hygiene. See Myers 101 F.3d at 542. Whatever prison policy may
be with regards to indigency, plaintiff was still entitled to basic hygiene supplies to prevent
the risk of injury from tooth decay, aches, and cavities. Because there is no dispute of
materials facts that 1) defendants denied plaintiff toothpaste and 2) plaintiff suffered
toothaches and cavities as a result, there is no triable issue of fact on this point, and only a
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matter of law to be decided. In accordance with the law of this Circuit, defendants caused
a substantial risk of serious harm when they deprived plaintiff of toothpaste for months at
a time and that lead to toothaches and cavities.

2. Defendants’ Deliberate Indifference
There remains the issue of whether defendants knew or should have known of an
excessive risk to plaintiff’s health or safety. Farmer, 511 U.S. at 834.
A litigant need not prove that supervisors had actual knowledge of constitutional
violations, “but whether they knew or should have known of them.” Howard, 8878 F.2d
at 138. A single incident or a series of isolated incidents is typically insufficient to assign
liability, but a repeated pattern of incidents can support a finding of reckless disregard for
constitutional rights. Id. at 138 (citing Williams v. Willits, 853 F.2d 586, 588–89 (8th Cir.
1988)).
Both defendants claim that they did not have a culpable state of mind. However,
the uncontroverted facts indicate that plaintiff sent letters to both defendants highlighting
his need for hygiene items. Likewise, plaintiff indicated he had several conversations with
both defendants where he made a request for hygiene items, including toothpaste.
Defendants deny that they ever personally denied his request, but they do not deny that
plaintiff made such requests. Plaintiff alerted defendant Francis to his need of toothpaste
on three separate occasions: a September 3, 2019 letter, a September 13, 2019 conversation,
and another conversation on October 30, 2019. There may have been another letter sent
on September 16, but this remains unproven.
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Later, plaintiff alerted defendant Lee to his need for toothpaste on December 23,
2019 and again in January 24, 2020. Defendant Lee testifies that he has no knowledge of
speaking with plaintiff, but this does not act as a denial that such conversations took place,
only that defendant Lee does not remember those conversations. This evidence goes
beyond mere allegations that defendants knew of the problem. Taking the evidence in the
light most favorable to the plaintiff, plaintiff has supported his claim with specific evidence
showing that he alerted defendants to his lack of hygiene items, and that defendants chose
not to respond to his requests.
Just because defendants knew that plaintiff was without toothpaste is not enough for
plaintiff to prevail on summary judgment. Rather, plaintiff must also show that the
defendants should have drawn an inference that a substantial risk of serious harm existed.
Davis v. Oregon Cnty., Mo., 607 F.3d 543, 548–49 (8th Cir. 2010).
Recognizing the competing claims for summary judgment, the Court must consider
each side’s claims by placing the facts in the light most favorable to them to see if there is
any dispute as to the subjective knowledge of the defendants. According to the facts in the
light most favorable to the plaintiff, both defendants should have known that plaintiff faced
the risk of tooth decay and illness without access to toothpaste. Defendants were on notice
by plaintiff’s letters and conversations that he needed toothpaste, and their disregard for
that need was deliberate indifference.
But if the facts are read in the light most favorable to the defendants, then their
conduct is only merely negligent, not deliberately indifferent, because they lacked
subjective knowledge that their conduct endangered plaintiff. Defendant Francis testifies
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that she does not remember denying plaintiff any personal hygiene items and that if she did
not give plaintiff any, it was because she did not have access to them. [Doc. 62-4 at 2–3.]
Defendant Lee testifies that he has no knowledge of ever speaking with defendant [Doc.
62-5 at 2.] He likewise denies ever personally denying plaintiff access to hygiene items.
[Doc. 68 at 7.] Accordingly, both defendants testify that they lacked subjective knowledge
that plaintiff faced a substantial risk of serious injury.
There is a triable issue of fact whether the defendants subjectively knew and
consciously disregarded a known risk of plaintiff going without toothpaste for extended
periods. Therefore, summary judgment is improper as to both motions on this second
element. Both motions will be denied, and it will be up to the trier of fact to determine
whether defendants had a culpable state of mind.

D. Defendants’ Qualified Immunity
Defendants assert that they are entitled to qualified immunity. Courts apply a twopart test in assessing a government official's claim of qualified immunity, first asking
whether the plaintiff demonstrated a violation of a constitutional right and then asking
whether that right was clearly established at the time of the violation. Williams v. Jackson,
600 F.3d 1007, 1012 (8th Cir. 2010). “[T]he Supreme Court has repeatedly instructed that
clearly established law ... must be particularized to the facts of the case.” Boudoin v.
Harsson, 962 F.3d 1034, 1039 (8th Cir. 2020) (internal quotation marks and quoted cases
omitted). “To overcome the defendants' qualified immunity claims, the plaintiffs must
show that: (1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the
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deprivation of a constitutional right; and (2) the right was clearly established at the time of
the deprivation.” Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010)
(cleaned up). In determining what confinement conditions violate the Eighth Amendment,
“common sense is sometimes helpful.” Howard v. Adkison, 887 F.2d 134, 140 (8th Cir.
1989).
Defendants are not entitled to qualified immunity. First, as discussed, a deprivation
of toothpaste that leads to tooth aches and cavities is a violation of Eighth Amendment
rights. Second, the law of this Circuit is well-established as to that right: a months-long
deprivation of basic hygiene supplies is a constitutional violation, especially when the
deprivation of such supplies can lead to foreseeable risk of injury. Jones v. HuffmanPhillips, 2013 WL 5442906, at *9–10 (citing Whittington v. Ortiz, 307 Fed. Appx. 179,
189 (10th Cir. Jan. 13, 2009) (unpublished); (Keenan v. Hall, 83 F.3d 1083, 1091 (9th
Cir.1996)); see also Jones-El v. Godert, 2019 U.S. Dist. LEXIS 213247, at *38–41. There
may be no constitutional right to “Comet” or “Lysol”, but “inmates are entitled to
reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over
a lengthy course of time.” Howard, 887 F.2d at 137 (citing Green v. Ferrell, 801 F.2d 765,
771 (5th Cir.1986)) (emphasis added). The facts, construed in the light most favorable to
the plaintiff, indicate a violation of an established constitutional right.

III.

Conclusion

Plaintiff had a constitutional right to have his basic hygienic needs met. Plaintiff
has failed to present enough facts to show a reasonable dispute on whether his lack of extra
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soap and deodorant violated his constitutional rights. Plaintiff’s request for summary
judgment on that point is denied, and defendants’ is granted. There is no dispute of material
fact that plaintiff went without toothpaste and suffered because of that.

Therefore,

summary judgment on the first element of plaintiff’s claim is granted as to the deprivation
of toothpaste, and defendants’ is denied. The only remaining dispute is whether defendants
knew or should have known of the constitutional violation. In reviewing the competing
motions for summary judgment, a dispute of material facts emerges as to defendants’ level
of knowledge, and so summary judgment on this issue is improper. Therefore, both
motions as to the second element will be denied. Finally, as discussed, defendants are not
entitled to qualified immunity.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to Deny the Use of Deposition
of Plaintiff [Doc. 59] is DENIED as moot.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment
[Doc. 62] is GRANTED in part and DENIED in part.
IT IS FINALLY ORDERED that plaintiff’s motion for summary judgment
[Doc. 58] is GRANTED in part and DENIED in part.
Dated this 17th day of November, 2022.

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

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