Still v. Davis et al

Filing 33

REPORT AND RECOMMENDATIONS re 25 Defendants' Motion for Summary Judgment. IT IS RECOMMENDED THAT Defendants' Motion for Summary Judgment 25 be GRANTED and that this case be dismissed from the active docket and closed. Objections to R&R due by 3/22/2018. Signed by Magistrate Judge Stephanie K. Bowman on 3/8/2018. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRANDON STILL,

Case No. 1:16-cv-640

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

CYNTHIA DAVIS, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, an incarcerated individual who proceeds pro se, filed suit against five
individuals employed at the Southern Ohio Correctional Facility (“SOCF”).
December 18, 2016, all Defendants jointly moved for summary judgment.

On
I now

recommend that Defendants’ motion be granted.
I.

Standard of Review

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” A dispute is “genuine” when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must view the
evidence and draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
moving party has the burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Rule 56(c) explains in relevant part that a party asserting that a fact cannot be

genuinely disputed must support the assertion by citing to “particular parts of materials
in

the

record,

including

depositions,

documents…affidavits

or

declarations,

stipulations…, admissions, interrogatory answers, or other materials” or alternatively by
showing that the adverse party “cannot produce admissible evidence to support the
fact.” This Court must consider the cited materials, but “may” consider other materials
in the record. Rule 56(c)(3).
Once the moving party has met its burden of production, the non-moving party
cannot rest on his pleadings, but must present significant probative evidence in support
of his complaint to defeat the motion for summary judgment.
Lobby, Inc., 477 U.S. at 248-49.

Anderson v. Liberty

The mere existence of a scintilla of evidence to

support the non-moving party’s position will be insufficient; the evidence must be
sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252.
Applying the relevant standards, and drawing all reasonable inferences in
Plaintiff’s favor, I turn now to the facts alleged by Plaintiff in this case.
II.

Facts Reasonably Construed in Plaintiff’s Favor

Plaintiff alleges that on August 6, 2015, he was placed in a disciplinary cell at
SOCF that contained a “puddle” of water that he later discovered was due to a “busted
sewage pipe in the Pipe Chase,” an area that Plaintiff describes as an access point to
the block’s plumbing that is used by maintenance staff to fix any plumbing issues. (Doc.
3 at ¶¶ 11-12). He alleges that during the time he remained in the disciplinary cell,
water “sprayed and leaked” through the damaged pipe into his cell whenever someone
in a cell above him flushed his toilet, with water coming “through a back vent” that was
located along a back wall. (Id. at ¶¶ 12-13).
2

An Informal Complaint Resolution (“ICR”) attached as an exhibit to Plaintiff’s
complaint states that Plaintiff did not realize that the “puddle of water in the back of my
cell” was growing until after he had been housed there for 24 hours. (Doc. 3 at ¶12).
According to the ICR, the fact that the leaking water was contaminated with human
waste became apparent to him “due to the smell after a couple of days.” (Doc. 3 at 12,
emphasis added).

He alleges that he first attempted to call Defendant Davis to alert

her of the puddle on August 7, 2015, when he caught a glimpse of her after she walked
by his cell, but “she refused to backtrack,” “ignored his plea,” and continued walking.
(See Plaintiff’s Affidavit, Exh. B to Doc. 29 at 19, ¶¶5-7; Doc. 3 at ¶¶ 16-17). In his ICR,
it is not clear how much Defendant Davis heard from Plaintiff, as he reports that “since
she was already past my cell she refused to return and would not come back to speak
to me.” (Doc. 3 at 12). However, Plaintiff maintains that he spoke loudly enough for her
to hear him over the range. (Doc. 29 at 19, ¶7).
In the complaint filed in this Court, but notably not in his Affidavit or in the ICR
attached as an exhibit, 1 Plaintiff further alleges that on August 8, August 9, and August
12, he allegedly informed and/or or requested cleaning supplies from five different “John
Does.” (See generally Doc. 3, Complaint at ¶¶19, 20, 21, 28, 29). However, Plaintiff
has never identified any John Does throughout the course of discovery, nor has he
produced any evidence to support these particular allegations. Plaintiff’s own affidavit
(produced in opposition to Defendants’ motion for summary judgment) contains no
reference to the referenced John Does. Moreover, Plaintiff has not alleged, much less
1

Plaintiff’s complaint is also inconsistent in this regard (alleging that he told additional John Doe
officers) with his appeal of the denial of his grievance, wherein Plaintiff states that “[m]y ICR tells
everyone I informed or tried to inform to no avail.” (Doc. 3 at 17).

3

produced any evidence, that any of the John Doe officers ever communicated any
complaint to any of the five named Defendants. Thus, the “John Doe” allegations do not
appear material or relevant to the issues presented.
Returning to allegations relating to the Defendants, Plaintiff alleges that, after
unsuccessfully attempting to yell to Defendant Davis, he first reported the sewage water
leaking into his cell to Defendant Bell on August 10, 2015, when Defendant Bell walked
through the housing unit.

Plaintiff alleges he asked to be moved or for cleaning

supplies, to which Defendant Bell responded “I will see what I can do.” (Doc. 3 at ¶¶ 2223; Doc. 29 at 19, ¶8). On the same day, Plaintiff alleges that he informed Defendant
Keating of “the situation” when Keating arrived to escort Plaintiff to the shower. Plaintiff
states that he asked to be moved or to be provided cleaning supplies. Defendant
Keating replied that he could do nothing about moving Plaintiff, but would “see about
cleaning supplies.” (Doc. 29 at 20, ¶9; Doc. 3 at ¶24). Plaintiff states that after his
return from the shower, he again inquired about a BioCart with which Plaintiff could
clean up the water, and Keating replied that he had not yet called for a cart because
“he’s been a little busy.” (Doc. 29 at 20, ¶ 10). Plaintiff asked Keating not to forget
about his request. Despite Keating verbally reassuring Plaintiff that he would not forget,
a BioCart did not arrive during his shift. (Id.)
During the first shift of the next day, August 11, Defendant Stringer arrived to
escort Plaintiff to the shower. At that time, Plaintiff informed Defendant Stringer of “the
situation and asked to be moved or be able to clean it up.” (Doc. 3 at ¶25). Defendant
Stringer allegedly replied by saying “I will see what I can do” but Plaintiff still did not
receive any supplies. (Id at ¶ 25; Doc. 29 at 20, ¶11). Upon his return from the shower,
4

Plaintiff states that he asked Defendant Stringer if he had yet requested a BioCart or
made a request for Plaintiff to be moved, and Stringer responded “no,” but assured
Plaintiff again that he planned to look into it, though no BioCart arrived on Stringer’s
shift. (Doc. 29 at 20, ¶ 12).
When he saw Defendant Bell later that same day, Plaintiff reminded him of his
earlier request to be moved or for cleaning supplies. (Doc. 29 at 21, ¶ 13). Plaintiff
alleges: “Once again Capt. Bell said he would see what he could do but nothing was
done during the shift.” (Id. at ¶ 26).
Finally, on August 13, Plaintiff “caught a last second glimpse” of Defendant
Lieutenant Eshum as he walked past Plaintiff’s cell. (Doc. 29 at 21 ¶ 14). Plaintiff states
that he was able to gain that Defendant’s attention by calling out “white shirt,” and that
he then informed Eshum - through the non-defendant correctional officers who
accompanied him - of the sewage water collecting in the cell and asked to be moved or
for a BioCart to be called. 2 “Although Lieutenant Eshum didn’t hear everything I said,
Officer Comer relayed what I said to him and in return Lieutenant Eshum responded by
saying “no” and continued his walk-thru.”

(Id. at ¶15, emphasis added).

Notwithstanding Eshum’s response, Plaintiff was moved the very next day to new cell,
following the expiration of his disciplinary confinement.
Plaintiff complains that he was forced to live in “unsanitary” conditions during his
2

In his ICR, Plaintiff mistakenly states that he spoke to a “Lt. Ison” but the correct name was
identified during the appeal of Plaintiff’s administrative grievance. Although Defendants briefly criticize
the timing of that grievance, (Doc. 30 at 3), this Court previously denied the Defendants’ motion to
dismiss Plaintiff’s lawsuit on grounds that the grievance and/or appeal were untimely filed. Finally, while
correctly identified in this proceeding, it is apparent from Defendants’ motion and discovery responses
that the surname has been misspelled as “Eshum” rather than “Eshem.” The Court will use the
uncorrected spelling for convenience, because no party has formally moved to correct the record.

5

8 day stay in the disciplinary cell, and that due to a continued leak, the puddle of
standing water grew to cover a third of the cell floor by the time he was moved. He
stated that the standing water “gave off a repugnant ammonia and excrement smell,”
which “made it difficult to do everyday activities and caused me to lay up in bed under
the covers to hide from the smell.” (Doc. 29 at 22, ¶ 17). Additionally, Plaintiff states in
his affidavit in opposition to summary judgment that the water made it “hard to access
the desk, sink and toilet” without getting his shoes and clothes wet, and “caused me to
suffer from headaches, a lost [sic] of appetite at times, and would cause me to gag
while eating.” (Doc. 29 at 22 ¶ 18; see also Doc. 3 at ¶33). 3 He further avers that the
lack of cleaning supplies for 8 days violated SOCF policy, which allows inmates to clean
their cells once per week. (Id. at 22). In his complaint he alleges that he was exposed
to a general “risk of slipping and falling and possibly contract[ing] a disease through
contact with standing water.” (Id. at ¶34). There is no evidence that Plaintiff actually
slipped, fell, or suffered any other serious health effects.
Because inmates must exhaust their administrative remedies before they may file
a federal lawsuit, Plaintiff filed an initial grievance on August 14, 2015; an official
responded that he would address the issue with the unit manager and maintenance.
Dissatisfied, Plaintiff filed an administrative appeal (Notice of Grievance). In a response

3

The allegations regarding the difficulty of access to the desk, sink and toilet appear only in
Plaintiff’s affidavit, which affidavit also references the fact that Plaintiff was offered frequent, if not daily,
showers. In contrast to his affidavit, Plaintiff does not allege anywhere else, including in his informal
grievance or related appeals, that the offensive water actually touched his skin or his clothing. Instead,
he previously states only that he was unable to use his desk and found it “hard to have access to my toilet
and sink.” (Doc. 3 at 17). The undersigned notes that the phrasing of the affidavit, while implying that the
water actually did come into contact with his shoes, socks and the hem of his pants, still says only that it
was “hard to access” his desk, sink and toilet without the (potential for) the water coming into contact with
his clothing.

6

dated October 5, 2015, Inspector Mahlman denied that appeal, stating that she had
spoken to Defendant Eshum and other officers, including Officer Upton and the Health
and Safety Officer, and that no one recalled any issue with the cell having a problem
with a broken pipe or leaking sewage, or Plaintiff contacting them to complain, such that
she was “unable to substantiate your allegations.” (Doc. 3 at 16). Plaintiff filed a final
appeal to the Chief Inspector, in which he alleged that staff had failed to inspect the cell
and discover the puddle prior to housing him in it. Plaintiff alleges that if the staff had
inspected the cell, they “would ha[ve] seen the puddle and had someone clean it up….”
(Doc. 3 at 17).
Plaintiff alleges that the five Defendants exhibited “deliberate indifference to
Plaintiff Still’s health and safety,” and violated his Eighth Amendment rights by causing
him pain and suffering.

(Doc. 3 at ¶ 39).

He seeks declaratory, monetary, and

injunctive relief.
Defendants filed the instant motion for summary judgment on October 30, 2017.
After obtaining an extension of time, Plaintiff filed a response on December 21, 2017, 4
to which Defendants filed a reply.
III.

Defendants Are Entitled To Judgment Under Prevailing Eighth
Amendment Standards

Plaintiff’s complaint alleges that all Defendants were “deliberately indifferent” to
his “health and safety” and/or that his conditions of confinement caused him

4

Although Defendants object to the filing of the response as untimely because the Court granted
Plaintiff an extension only through December 18, the undersigned finds good cause to consider the
response as if timely filed. Plaintiff’s certificate of service indicates that he placed the response in the
prison mail system on December 16, 2017, two days prior to the specified deadline.

7

unnecessary “pain and suffering.” (Doc. 3 at 9, ¶ 39). Plaintiff’s claim arises under the
Eighth Amendment.
The Constitution “does not mandate comfortable prisons,” Rhodes v.
Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59
(1981), but neither does it permit inhumane ones, and it is now settled that
“the treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.”
Farmer v. Brennan, 114 S.Ct. 1970, 1976, 511 U.S. 825, 832 (1994)(quoting Helling v.
McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 2480 (1993)). In order to prove that the
five identified Defendants exhibited deliberate indifference in violation of Eighth
Amendment standards, Plaintiff must produce evidence to support both an objective
component of his claim, and a subjective component. Based on the record presented,
and even construing all reasonable inferences in Plaintiff’s favor, the Defendants are
entitled to judgment as a matter of law because no reasonable fact-finder could find for
Plaintiff on either component of his claim.
A. Objective Component
In order to prove the objective element, Plaintiff must demonstrate that the harm
to which he was subjected was “objectively, sufficiently serious,” such “a prison official's
act or omission must result in the denial of ‘the minimal civilized measure of life's
necessities,’” Farmer v. Brennan, 114 S.Ct. at 1977 (quoting Rhodes, supra, 452 U.S. at
347, additional internal quotation marks and citations omitted). Put another way, for a
claim “based on a failure to prevent harm, the inmate must show that he is incarcerated
under conditions posing a substantial risk of serious harm.” Id. at 834, citing Helling,
supra, 509 U.S. at 35.

8

Citing institutional records beginning four days prior to Plaintiff being moved to
the cell and continuing through January 15, 2016, Defendants first argue that there is no
evidence that there was ever any leak of sewage water through the pipe chase into the
cell, other than Plaintiff’s statements in his administrative grievance. Plaintiff’s ICR was
denied because his allegations could not be substantiated. (Doc. 29 at 15-16; Doc. 3 at
16). Defendants have produced security check and sanitation inspections, dated for
August 2, 2015 through August 8, 2015 and August 9, 2015 through August 15, 2015,
Daily Shift Rosters dated August 6-15, 2015, Plaintiff’s August 14, 2015 ICR and
appeals of that grievance, the August 2015 weekly fire/safety sanitation inspection
reports, the August 2015 monthly fire/safety/sanitation report, and the Declaration of
Chris Abell, who was the Maintenance Supervisor at SOCF.

In addition to

documentation indicating that no leak was observed and no repair was made (per
institutional records), Mr. Abell states in his affidavit that if toilet water had been leaking
from the toilet above Plaintiff’s cell, the institutional plumbing was such that both toilets
would have been rendered inoperable. It is undisputed that Plaintiff did not complain
that his toilet was inoperable. Therefore, Defendants argue that there is no genuine
issue of material fact that no leak (or subsequent repair of any leak) ever occurred.
However, Plaintiff persuasively points to his August 14, 2015 ICR, in which he
first complained about the existence of a leak and that he was not moved or provided
appropriate cleaning supplies. Plaintiff also has offered as an exhibit to his response
his own affidavit, in which he states that he spoke to Defendants Bell, Eshum, Keeting
and Stringer “face to face and informed them of the sewage leak from the damaged
pipe,” and that three of them observed the puddle of standing water in his cell. Plaintiff
9

admits that he did not speak directly with Defendant Davis, but avers that he yelled loud
enough that she should have heard him. (Doc. 29 at 19, ¶¶ 5-7). Plaintiff’s ICR and
affidavit are sufficient to create a genuine issue of fact as to whether a puddle of
standing water existed during the 8 days in which he was confined in the cell. Accord
Krutko v. Franklin County, Ohio, Case No. 2:11-cv-610, 2014 WL 6687143 (S.D. Ohio
Nov. 26, 2014)(Marbley, J.) (denying summary judgment to six individual defendants
when presented with a similar conflict between institutional records and the plaintiff’s
affidavit).
Nevertheless, Defendants remain entitled to summary judgment because, even
assuming that a reasonable fact-finder might determine that the puddle existed, Plaintiff
cannot show that condition presented an “objectively, sufficiently serious” risk during the
8 days he was confined to the cell, or “a substantial risk of serious harm.” Farmer, 511
U.S. at 834. 5 Plaintiff describes a puddle of water that started out small, but that due to
a damaged pipe, grew larger over the following week until the water impacted (at most)
one third of his cell floor. The fact that the puddle was small at its outset is evident from
Plaintiff’s complaint and original grievance, in which he describes discovering only after
24 hours that “a puddle of water in the back of my cell” was “starting to get bigger.”
(Doc. 29 at 12). Plaintiff alleges that the source of the leak was a pipe chase – a central
pipe used by maintenance to access the plumbing system for the entire block.
5

The undersigned acknowledges that Defendants’ chiefly rely on the argument that Plaintiff has
failed to prove the objective component of his claim based on a lack of evidence of a leak – an argument
that is not persuasive on the record presented. Although the Defendants’ argument concerning the lack
of proof of the objective component of Plaintiff’s claim is limited, the undersigned finds it to be sufficient to
address the argument on the alternative legal and factual grounds stated, both because Plaintiff himself
has cited most of the relevant cases, and because Plaintiff may further respond through objections to this
R&R if he so chooses.

10

Presumably because the water was diluted by the normal water flow and not comprised
solely of human waste, Plaintiff did not infer the origins of the puddle until “after a couple
of days” based on the smell. (Doc. 29, ICR at 12). However over time, Plaintiff avers
that the malodorous puddle “made it difficult to do everyday activities and caused me to
lay up in bed under the covers to hide from the smell.” (Doc. 29 at 22, ¶ 17).
Conditions-of-confinement cases are highly fact-specific. “In general, the severity
and duration of deprivations are inversely proportional, so that minor deprivations
suffered for short periods would not rise to an Eighth Amendment violation, while
‘substantial deprivations of shelter, food, drinking water, and sanitation’ may meet the
standard despite a shorter duration.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.
2001)(internal citation omitted). Claims alleging unsanitary conditions due to clogged
toilets and leaky plumbing are relatively common in the prison system. In many cases,
inmates deliberately cause flooding of toilets, either as a means of protest, or because
they are mentally ill. In other cases, some form of accidental leak has caused the
problem, as is alleged here.
Colloquially speaking, the “yuck” factor influences the assessment of the severity
of the deprivation to sanitation and level of risk to health and safety. Thus, cases
involving excrement or feces, or raw sewage from toilet overflows, tend to evoke greater
concern than cases like the one presented, involving leaky pipes that result in a lesser
degree of non-potable or contaminated water. In assessing the risk of serious harm,
courts take a common sense approach. A condition that might not offend the Eighth
Amendment over a shorter period of time could violate the Eighth Amendment if the
inmate was subjected to the condition over a long period.
11

On similar facts involving leaks of unsanitary water from damaged pipes, courts
have held that even fairly long exposure will not satisfy the objective component of the
Eighth Amendment in the absence of any physical harm. See e.g. Keel v. Davidson
County Sheriff’s Office, 2015 WL 799724 *3 (M.D. Tenn. Feb. 25, 2015)(“Multiple courts
have found that exposure to leaking sewage in a prison cell with no accompanying
physical harm is insufficient to satisfy the objective component of a constitutional
violation,” collecting cases and granting summary judgment to defendants where inmate
complained of sewage leak above his cell for 3 weeks before a work order was placed,
but alleged no physical harm); Antonelli v. Walters, 2009 WL 921103 at *20 (E.D. Ky.
March 31, 2009)(claim of leak and raw sewage in cell resulting from failure to maintain
pipe chase failed to state Eighth Amendment violation in the absence of allegation of
physical harm); Smith v. Melvin, 94 F.3d 647 (7th Cir. Aug. 14, 1996)(inmate failed to
allege constitutional deprivation from leaky toilet and accumulating water on the floor,
where inmate did not allege how much standing water accumulated, how long he lived
in cell, or how extensive the damage, if any, to his personal belongings, nor did he
allege that toilet actually overflowed or flooded cell with raw sewage). Contrast Frazier
v. George, 2014 WL 4979315 at *12 (M.D. Tenn., Oct. 6, 2014)(exposure to raw
sewage on a daily basis for three months, including both urine and feces, created a
genuine issue of fact even though “[g]enerally, the mere presence of raw sewage,
without an accompanying physical injury, does not constitute a violation of a prisoner’s
Eighth Amendment rights.”).
In contrast to the leaky pipe cases, the cases cited by Plaintiff in opposition to
summary judgment are clearly distinguishable because they involve far more severe
12

deprivations to sanitation, greater and clearer risks to health and safety, and/or more
prolonged deprivations. For example in Krutko, a jailed inmate testified that he was
sleeping on a cell floor when a toilet overflowed profusely, such that “raw sewage
covered and soaked his clothes and body” from head to toe. Id., 2014 WL 6687143 at
*3. Mr. Krutko also alleged that the six defendant guards had cursed, laughed and
insulted him, refused to release him from the cell for 25 minutes, and deliberately left
him covered in excrement.

After he vomited, the defendants transferred him to a

medical cell but continued to deny him any personal hygiene items with which to clean
himself, and allegedly refused multiple requests for access to basic hygiene including
soap, water, a toothbrush, or a shower for five or six days. The plaintiff developed
scratches and scabs as a result of trying to remove the raw sewage from his body. Id.
at *5. 6 The court distinguished cases in which less offensive conditions did not satisfy
the objective component of the Eighth Amendment, holding that “because of the degree
of filth Plaintiff [allegedly] endured, and the fact that the filth festered [on his body] for
several days, the conditions of Plaintiff’s confinement were sufficiently serious and
resulted in the denial of the minimal civilized measures of life’s necessities.” Id. at *5.
Similarly distinguishable is the Tenth Circuit case cited by Plaintiff, 7 DeSpain v,
Uphoff, supra.

That case involved no small leak from a pipe chase, but massive

flooding including raw sewage and standing water four inches deep after inmates
clogged toilets in an entire cell block during a riot. Toilets were inoperable and requests
to clean the area were denied. Other inmates urinated through the bars of their cells into
6

Plaintiff also claimed to have required psychological treatment due to post-traumatic stress from
the incident.
7
Nearly all of the published case law on which Plaintiff relies is from outside the Sixth Circuit.

13

the standing water, which contained floating feces. A food cart with a ground clearance
that was “roughly the same as the water depth, making it difficult to avoid contact
between the food and the contaminated water” was rolled through the area. Id. at 972.
Mr. DeSpain was unable to eat at all. Food trays were not picked up, and the uneaten
and partially eaten food was added to the standing water. Plaintiff DeSpain spent
several days confined to his bed which was “the only dry area” in his cell, and required
psychological treatment with anti-anxiety medication for months later.

Id. at 973

(emphasis added). See also, e.g., Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990)(holding
that inmates who refused order to clean out underground wet-well portion of raw
sewage lift-pump station in 125 degree heat, without protective gear, stated prima face
case sufficient to avoid dismissal of Eighth Amendment claim, where expert testified to
dangers of heatstroke, explosive gases due to decomposing waste, as well as smaller
risk of disease from contact with raw sewage).
Although the instant case does not involve the level of exposure to raw sewage
the plaintiffs were exposed to in Krutko and DeSpain, it is worth noting that even in
similar cases involving exposure to raw feces, courts have found no violation of the
Eighth Amendment if the duration is short, and no injury occurred. The portion of the
cell that is impacted also is relevant in assessing the degree of filth or “severity” of the
condition. Thus, a case in which feces covered only the cell door, and the time period
was limited to 48 hours, was insufficient to state a claim under the Eighth Amendment,
whereas confinement in cells with multiple feces-covered walls for longer periods could
state a claim. Compare Gofarth v. Sumner County, 2013 WL 1943020 at *3 (M.D.
Tenn. May 9, 2013)(confinement in cell with door covered with feces failed to state
14

claim under 8th Amendment where no injury occurred) with McBride v. Deer, 240 F.3d
1287 (10th Cir. 2001)(Eighth Amendment violation could be stated based upon
confinement to a cell covered by feces for three days); see also Johnson v. Pelker, 891
F.2d 136 (7th Cir. 1989)(wet bedding and clothing, while disquieting and not condoned,
did not approach unconstitutional proportions, but placing prisoner in cell for three days
with no running water, with feces smeared on the walls, while defendants ignored
requests for water to be turned on or for cleaning supplies, required further review);
McCord v. Maggio, 927 F.2d 844 (5th Cir. 1991)(Eighth Amendment violation shown
where prisoner was forced repeatedly to live 23 hours per day over two year period with
no bunk, but only a bare, wet mattress placed on a floor covered in filthy water
contaminated with human waste, in a roach-infested, windowless, dark and unlighted
cell with only a small hole cut in steel door for outside access). 8
Although Plaintiff here complains of exposure to contaminated water in his cell
over 8 days, the puddle was confined to the back of the cell at the outset. Unlike in
many cases, Plaintiff was not denied basic hygiene or access to running water. He also
never alleges that the contaminated water ever touched his skin - quite unlike the
degree of filth that the plaintiff in Krutko alleged he was forced to endure. 9 Plaintiff
alleges that he feared slipping and falling, but there is no evidence that he could not
avoid contact with the puddle, and slip-and-fall cases do not present Eighth Amendment
concerns. See generally, Lamb v. Howe, 677 Fed. Appx. 204 (6th Cir. 2017)(upholding
8

In McCord, the prisoner-plaintiff was incarcerated for approximately two years in cells where he
was often if not continually subjected to “harsh and occasionally disgusting” conditions, and prison
officials did not deny the substance of his allegations The defendant admitted the placement of
mattresses on the floor over a 10-month period. Id., 927 F.3d at 846.
9
The defendants in Krutko prevailed at trial, when a jury found in their favor and against the
plaintiff on all counts.

15

dismissal for failure to state a claim, when prisoner alleged that he was denied a mop
with which to clean up a cell flooded with several inches of toilet water by neighboring
inmates who intentionally flooded their cell, and that he slipped and fell causing head
injury that required stitches). Assuming that a jury would find that a leak caused the
puddle to grow, the partially wet floor and offensive odor that Plaintiff describes does not
rise to the level of an objectively “severe or prolonged” condition that violates the Eighth
Amendment.

Accord Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.

2001)(dismissing for failure to state a claim a prisoner’s complaint alleging
unconstitutional conditions of confinement where the prisoner was temporarily deprived
of a working toilet and was subjected to a flooded cell); see also generally, Smith v.
Copeland, 87 F.3d 265, 269 (8th Cir. 1996)(no Eighth Amendment violation where an
inmate complained that he was exposed to raw sewage from an overflowed toilet in his
cell for four days, but suffered no physical harm); Bey v. Luoma, 2009 WL 884630, at
*2-3 (W.D. Mich. Mar. 30, 2009)(holding, where plaintiff alleged that he was exposed to
human waste fumes for approximately six months causing sickness, migraine
headaches, nosebleeds, and lack of appetite, that defendants’ conduct did not violate
the Eighth Amendment); Williams v. Luetzow, 2006 WL 1627468 at *5-6 (W.D. Mich.
Jun. 9, 2006) (no Eighth Amendment violation was stated where inmate was housed
with mentally ill inmates who created unsanitary conditions by smearing excrement on
walls and doors, with puddle of urine on the floor, and threw urine and feces at other
inmates).
Even construing all facts in Plaintiff’s favor, the growing puddle of contaminated
water covered a relatively small portion of his cell, and was alleged to emanate from a
16

damaged central pipe chase, not directly from an overflowing toilet. Other than claiming
that he yelled to Defendant Davis, who did not give any indication of hearing him,
Plaintiff first notified one of the Defendants of the puddle on August 10 – four days prior
to his transfer to a new cell.

He does not allege in his complaint or ICR that the

offensive water ever so much as touched his clothing or skin, or that he was unable to
avoid contact, or that he was denied the means to clean off any incidental contact. See
Dyer v. Hadwick, 2011 WL 4036681 at *10 (E.D. Mich. Aug. 1, 2011) (noting that
plaintiff’s potential ability to avoid exposure and failure to allege any physical illness
failed to state any Eighth Amendment violation); Mills v. C.C.A., 2010 WL 5155478, at
*5 (M.D. Tenn. Dec. 14, 2010) (Even if the Court takes as true the allegations that
[unsanitary] water flowed from a nearby shower in the Plaintiff’s cell three times a week
for several weeks, these facts simply do not show that he was subjected to the type of
extreme deprivation necessary to implicate the Eighth Amendment.”).
In his complaint, he alleges that he was effectively unable to use his desk and
found it “hard to have access to my toilet and sink,” (Doc. 3 at ¶17), suggesting he may
have had to step over the puddle, but that access was not impossible. It is true that his
affidavit in opposition to summary judgment implies contact with the contaminated
water, but that statement remains ambiguous and cannot not be fully credited. Plaintiff
avers that the water made it “hard to access the desk, sink and toilet without saturating
my shoes, socks, and the bottom of my pants legs. It also caused me to suffer from
headaches, a lost [sic] of appetite at times, and would cause me to gag while eating.”
(Doc. 29 at 22 ¶ 18 (emphasis added); see also Doc. 3 at ¶33). However, the same
affidavit references daily showers, (Doc. 29 at 20, ¶¶9, 10, 11, 12), and Plaintiff does
17

not claim that he was denied access to personal hygiene or that he asked for clean
clothes and was refused, such that he would have been able to clean himself if in fact
any portion of his clothing or skin had come into physical contact with the water.
Considering that at the end of 8 days, the offensive water did not impact more than one
third of the cell floor, any construed assertion in the affidavit that the puddle had grown
deep enough to soak his shoes, socks, and bottom of his pants legs is so wholly
incredible that it need not be accepted. Unless the cell floor contained a moat, the laws
of physics would not have permitted containment of such deep water to such a small
portion of the cell. Still, for purposes of the summary judgment motion, the undersigned
finds that a reasonable jury could find that at the end of 8 days, one third of the floor
was dampened or made wet by a growing puddle of smelly, unsanitary water.
The referenced puddle of unsanitary water is not a condition that any court would
condone. However, at least two thirds of the cell floor remained dry, and Plaintiff’s main
complaint is the odor to which he was subjected, an odor that by his own admission he
did not observe until after a couple of days. Drawing reasonable inferences in Plaintiff’s
favor, the smell grew increasingly foul and eventually diminished his appetite, causing
him to “gag while eating” at times and/or contribute to occasional headaches (which
were not severe enough to require medical attention). 10 (Doc. 29 at 22, ¶ 18). As
unpleasant and distasteful as the cell conditions may have been, they were not so
inhumane or intolerable as to violate the objective standards of the Eighth Amendment

10

Plaintiff does not allege that he vomited, or reported nausea or headache, or requested any
form of medical treatment from anyone, much less any of the Defendants.

18

as a matter of law, in the absence of any evidence of serious risk to health or safety or
physical injury.
B. Subjective Component
In addition to proving the objective component of his claim, Plaintiff must prove a
subjective component by showing that each Defendant subjectively perceived facts from
which he or she inferred a substantial risk existed to Plaintiff of serious harm, actually
drew that inference, and then disregarded the risk. See Krutko v. Franklin County, Ohio,
559 Fed. Appx. 509, 511 (6th Cir. 2014)(remanding to district court to conduct an
individualized inquiry to determine whether any of the defendants were entitled to
qualified immunity based upon the evidence presented as to the defendants’ subjective
state of mind). Proof of the subjective component as to each Defendant is required, as
the Supreme Court has long rejected “a reading of the Eighth Amendment that would
allow liability to be imposed on prison officials solely because of the presence of
objectively inhumane prison conditions.” Farmer v. Brennan, 114 S.Ct. at 1979 (quoting
Wilson v. Seiter, 501 U.S. 294, 299-300, 111 S. Ct. 2321, 2324-2326 (1991)).
On the record presented, the lack of evidence to support the subjective element
of Plaintiff’s claim against any Defendant is even more striking than the lack of proof of
an objectively serious risk of harm. Plaintiff has produced no evidence at all to suggest
that Defendants were aware of any serious health or safety concern, even assuming
that Plaintiff’s affidavit is sufficient to establish that he spoke to (or yelled at) each
Defendant over the course of several days and requested a cell change and/or cleaning

19

supplies. 11 Notably, Plaintiff does not allege that he ever complained of any headache
or other health impact, or that he expressed any health concern to any Defendant.
Instead, he alleges only that he complained about a puddle of standing water that he
believed to be toilet waste based upon the odor and location of the perceived leak.
Unlike in Krutko where the plaintiff alleged that the defendants cursed, laughed, and
insulted him, Plaintiff here alleges that three of the five Defendants responded positively
and stated that they would attempt to provide him with cleaning supplies. Construing all
facts in Plaintiff’s favor, he has shown – at most – that some of the Defendants were
negligent because after listening to his complaint and stating that they would respond,
they failed to timely return with the requested cleaning supplies during their shifts.
More specifically, although Plaintiff complains that Defendant Davis “ignored” him
and did not return when he called after her on the second day he was housed in the
cell, there is no indication that she heard him.

Ms. Davis states that she has no

recollection of visiting the cell block that day, or of speaking with Plaintiff. (Doc. 25-2 at
1). Plaintiff’s affidavit states only that he “attempted to call Ms. Davis back to my cell to
inform her of the damaged pipe and sewage water collecting,” but that she “continued
with her walk thru,” which is equally consistent with the Defendant not hearing him as it
is with Plaintiff’s interpretation that she ignored his “yelling” about his “plight.” (Doc. 29
at 19, ¶¶6, 7). Even if Ms. Davis heard Plaintiff yelling about the puddle on Day 2 of his
confinement in the cell, Plaintiff admits he had just realized that the puddle “was starting

11

None of the five Defendants recalls speaking with Plaintiff at any time during the week of August
6-14, 2015, nor do any of the Defendants recall Plaintiff informing them of the existence of a sewage leak
or standing water in J2-15. All five Defendants deny being aware of any such issue during the time
period of August 6-14, 2015. See Doc. 25-2, Exhibit B, Interrogatory Responses.

20

to get bigger” such that Ms. Davis cannot be held liable for subjectively exposing him to
a substantial risk of serious harm.
Plaintiff alleges that he first notified Defendant Bell on August 10, four days prior
to being moved from the cell on August 14. Bell responded by stating that he would
“see what I can do” but failed to return with cleaning supplies during his shift. The next
day on August 11, Plaintiff avers that he saw Bell again and reminded him of problem,
asking that he be moved to another cell or cleaning supplies be brought in. Defendant
Bell again responded positively by saying he would look into having something done,
but nothing further occurred that day. Plaintiff asserts similar facts against Defendant
Keating, that on August 10 he asked to be moved or for a BioCart and that Keating
replied that he could not move Plaintiff, but “would see about the cleaning supplies.”
(Doc. 29 at 20, ¶9). After Keating returned to escort Plaintiff back from his shower,
Plaintiff asked if he had yet called for the cleaning cart, whereupon Keating replied “not
yet, he’s been a little busy,” but assured Plaintiff he would not forget. (Id. at ¶10). On
August 11, Plaintiff states he had a similar interaction with Defendant Stringer, wherein
Stringer replied by stating he would see what he could do, and that when Plaintiff
followed up with him a short time later (when Plaintiff was done showering), Stringer
responded that he had not yet looked into the matter but assured Plaintiff he planned to
do so. (Doc. 29 at 20, ¶¶ 11-12).
In interrogatory responses, Bell and Keating flatly deny that Plaintiff ever
informed them at any time of any standing water or leak on August 10 or August 11
(Doc. 25-2 at 6, 16-17). Stringer, by contrast, does not deny the conversation but
instead states that he has no recollection of any conversation, nor any knowledge of a
21

leak from the pipe chase. (Doc. 25-2 at 20). However, even assuming the truth of
Plaintiff’s assertions, all three Defendants verbally indicated their intention to assist
Plaintiff in obtaining cleaning supplies. The fact that no supplies were forthcoming
during the referenced shifts reflects - at most - inattention and negligence, not deliberate
indifference or wanton indifference to a serious risk of harm.
The only Defendant who allegedly told Plaintiff “no” was Defendant Eshum, who
Plaintiff acknowledges stopped after being called to while walking down the range
during the second shift of August 13, 2015, accompanied by other officers, and who
“didn’t hear everything I said.” (Doc. 29 at 21, ¶15). Yet, there is no dispute that
Plaintiff was moved less than 24 hours later, on August 14, 2015.
Based on the facts alleged, all five Defendants are entitled to summary judgment
because none exhibited conduct that is sufficient to satisfy the subjective component of
Plaintiff’s Eighth Amendment claim.
C. Defendants Are Entitled To Qualified Immunity
For similar reasons, the undersigned finds that all Defendants are entitled to
qualified immunity. Plaintiff has not demonstrated either a constitutional violation or that
any Defendant acted in a manner that was “objectively unreasonable” in light of clearly
established law.

Ratcliff v. Moore, 614 F. Supp.2d 880, 890 (S.D. Ohio 2009).

Although case law generally supports an inmate’s right to be housed in conditions that
do not violate the Eighth Amendment, for the reasons discussed, the facts alleged (a
leaky pipe that caused a wastewater puddle to spread over a third of Plaintiff’s cell over
an 8 day period) did not clearly violate the Eighth Amendment. See also generally RuizBueno III v. Scott, 639 Fed. Appx. 354 (6th Cir. Feb. 2, 2016). To violate the Eighth
22

Amendment, the condition complained of must be sufficiently serious to warrant
constitutional protection, meaning that there is a non-theoretical risk to the inmate’s
health and safety. Based on the lack of any controlling Supreme Court or Sixth Circuit
case establishing an Eighth Amendment violation on any similar facts, a reasonable
officer would not have known that a failure to immediately provide cleaning supplies or
to move Plaintiff after he complained of a slow-growing puddle of contaminated water
violated any clearly established constitutional right.
IV.

Conclusion and Recommendation

Accordingly, and for the reasons stated IT IS RECOMMENDED THAT
Defendants’ motion for summary judgment (Doc. 25) be GRANTED and that this case
be dismissed from the active docket and closed.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRANDON STILL,

Case No. 1:16-cv-640

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

CYNTHIA DAVIS, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time.

All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections.

A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

24