Shannon v. Graves, No. 00-3029

• Decision Date: 10 July 2001
• Docket Number: No. 00-3029
• Citation: 257 F.3d 1164
• Parties: (10th Cir. 2001) RACHELLE SHANNON, Plaintiff - Appellant, v. BILL GRAVES, Governor of the State of Kansas; RICHARD D. KOERNER, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1164

257 F.3d 1164 (10th Cir. 2001)

RACHELLE SHANNON, Plaintiff - Appellant, v. BILL GRAVES, Governor of the State of Kansas; RICHARD D. KOERNER, Defendants - Appellees.

No. 00-3029

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 10, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 98-CV-3395-KHV)

[Copyrighted Material Omitted] Steven G. Sklaver, Cooley Godward, L.L.P., Denver, Colorado, for Plaintiff - Appellant.

Brian R. Johnson, Assistant Attorney General (and Carla J. Stovall, Attorney General, on the brief), Topeka, Kansas, for Defendants - Appellees.

Before KELLY, McKAY, and MURPHY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant Rachelle Shannon appeals from the summary judgment in favor of state officials on her conditions-of-confinement claim, 42 U.S.C. 1983. Shannon v. Graves, 2000 WL 206315 (D. Kan. Jan. 5, 2000). On appeal, she contends that the district court (1) conducted trial by affidavit, and (2) ignored the Seventh Amendment. She contends that discovery was needed and that the district court failed to recognize her showing of numerous constitutional violations. We appointed counsel who supplemented Ms. Shannon's brief, focusing on the claims involving exposure to raw sewage and inadequate laundering of blankets issued to inmates. We affirm.

Background

Ms. Shannon sued the Kansas Governor and the Warden of the Topeka Correctional Facility (TCF) claiming that her conditions of confinement violated the Fifth, Eighth and Fourteenth Amendments. She sought monetary, declaratory and injunctive relief, as well as costs and attorneys' fees. Although Ms. Shannon raised thirteen claims relating to her conditions of confinement, only the claims identified in the supplemental brief merit extended discussion given the substantive law that we discuss below.

The summary judgment evidence established that plumbing and sewer problems are frequent at TCF. Because of the site's topography, there is an inadequate gravity flow for the sewage system, thereby necessitating a lift station. All sewage flows into a lift station and a basket catches large items such as washcloths and sanitary napkins. Although there is a small grinding blade that operates on the sewage before it reaches the lift station, it is not sufficient to eliminate the need for the lift basket. The prison does not have a "muffin monster" or large industrial grinding apparatus that would replace the lift basket. When the waste reaches a certain level at the lift station, pumps are automatically activated and the sewage is pumped into city lines.

The lift basket must be cleaned at least daily, and that work is performed by inmates. After the inmates have cleaned the basket, the resulting waste is placed in regular trash bags and disposed of with the facility's other trash. R. Doc. 26, at 20. Although the prison does not consider the sewage to be hazardous waste, it does provide inmates with protective gear. The prison allows inmates coming into contact with the waste to shower after the basket has been cleaned; in the case of "excessive" contact, a shower will be permitted prior to the complete cleaning of the basket. R. Doc. 14, at 12-13 (Martinez report). In her verified complaint, Plaintiff maintains that she "was given a suit in which the sleeve did not reach the top of the glove. During the basket cleaning she got some of the solid waste on her arm, but was not allowed to clean it off until she had finished and gone back inside." R. Doc. 1, at 3, 20.

It is uncontroverted that the lift system has been the subject of staff and inmate complaints for many years given "mechanical problems that have caused the system to back up and/or require the basket to be emptied by inmates several times a day." R. Doc. 14, at 13. Sewage backups occur from time to time, resulting in sewage coming up through various drains; Ms. Shannon's evidence tends to show backups in the kitchen, laundry, showers, halls and pods. R. Doc. 26, at 17; Doc. 1 (Form 9 dated 12/14/1996). Also, when one toilet is flushed, the sewage may backup into another cell's toilet. Apart from the flooding, there apparently is an odor problem. According to the Plaintiff, "[t]he carpeting in the OIC's [officer-in-charge's] office was removed recently because the odor from the pit floods could not be eliminated." R. Doc. 18, at 9.

When there is a sewage overflow, blankets are used to mop up the sewage. According to the complaint, the blankets are then "sent out, given no special cleaning, and issued to the inmates while they still smell." R. Doc. 1, at 3, 18. The complaint also alleges that when inmate clothes are returned from the laundry and rinsed, "brown water comes out, plus they stink." Id. at 4, 27. Defendants included an affidavit from the deputy warden for support services indicating that laundry items "are washed in commercial washing machines using clean water, detergent, and bleach and then dried in commercial air dryers." R. Doc. 23, Ex. C. The Martinez report indicates that laundry items used in a clean up would be processed in accordance with the Kansas Department of Corrections policy and program for the prevention and control of communicable, environmental and infectious diseases, though specifics are not given. R. Doc. 14 at 7, 15, Ex. 16a (policy).

Discussion

We review a district court's grant of summary judgment de novo. Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A court considers all evidence and reasonable inferences therefrom in the light most favorable to the non-movant; however, the summary judgment material must contain probative evidence that would allow a trier of fact to find in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The Seventh Amendment is not violated by proper entry of summary judgment, because such a ruling means that no triable issue exists to be submitted to a jury. Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-20 (1902).

Prison officials are required to insure that inmates receive adequate food, clothing, shelter and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). An inmate making an Eighth Amendment claim for constitutionally inadequate conditions of confinement must allege and prove an objective component and subjective component associated with the deficiency. The objective component requires conditions sufficiently serious so as to "deprive inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Alternatively, a condition must be sufficiently serious so as constitute a substantial risk of serious harm. Helling v. McKinney, 509 U.S. 25, 33-35 (1993). The subjective component requires that a defendant prison official have a culpable state of mind, that he or she acts or fails to act with deliberate indifference to inmate health and safety. Wilson v. Seiter, 501 U.S. 294, 297, 303 (1991).

Inmate exposure to sewage can constitute a serious risk to inmate health and safety and satisfy the objective component. McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001); Ramos v. Lamm, 639 F.2d 559, 569-70 (10th Cir. 1980); Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990). Evidence in the record confirms what is obvious: exposure to the human waste of others carries a significant risk of contracting infectious diseases such as Hepatitis A, shigella, and others.¹ There is no requirement that an inmate suffer serious medical problems before the condition is actionable. Helling, 509 U.S. at 33 ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life threatening condition in their prison on the ground that nothing yet had happened to them."). At the same time, the frequency and duration of the condition, as well as the measures employed to alleviate the condition, must be considered when considering the objective component. Hutto v. Finney, 437 U.S. 678, 686-87 (1978); McBride, 240 F.3d at 1291; Tokar v. Armontrout, 97 F.3d 1078, 1082 n.4 (8th Cir. 1996); see also Craig v. Eberly, 164 F.3d 490, 496 (10th Cir. 1998) ("[I]t is particularly important to develop an adequate record on factual disputes relating to the seriousness and length of the alleged deprivations, for these are essential elements of a conditions of confinement claim.").

With these standards in mind, we address Ms. Shannon's claims relating to exposure to sewage. Though Ms. Shannon may be able to satisfy the objective component, she cannot demonstrate that prison officials acted with deliberate indifference (subjective component) insofar as her one-time exposure to sewage while she was cleaning the lift basket. This is not a case where inmates were denied the necessary protective equipment. See Rish v. Johnson, 131 F.3d 1092, 1097 (4th Cir. 1997). Rather, it is uncontroverted that Ms. Shannon was provided with protective clothing and gear and was allowed to shower after the exposure. She disputes the adequacy of the protective gear supplied to her and not being allowed to clean off the waste until the job was finished. At best, these complaints suggest negligencenot a wanton and obdurate disregard for inmate health and safety. See Good v. Olk-Long, 71 F.3d 314, 316 (8th Cir. 1995) (granting qualified immunity where inmates not provided protective gear).

Ms. Shannon's claim concerning the alleged fecal contamination of blankets and clothing raises a material issue of fact as to the objective component of an Eighth Amendment claim. She claims that improper laundering results in blankets and clothing with an odor, and clothing in need of rinsing. One might question the necessity of using blankets that will be issued to inmates to mop up sewage, particularly when it is obvious that inmates will need to use those blankets for...