McBride v. Deer

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 1 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JOE R. MCBRIDE,

Plaintiff - Appellant,

v. No. 00-6152

RUSSELL DEER, Major; SONNY
BRIGGS; DR. HARVEY; NURSE
HERBIT; NURSE SNYDER; NURSE
POTER; COURTNEY O'CONNOR;
OFFICER PERRY, Detention Officer;
OFFICER SEBER, Detention Officer;
SGT. FLEMMING; SGT. SAILIAS;
SGT. CAMBRIDGE; SGT. WADE,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CIV-99-274-M)

Submitted on the briefs:

Joe R. McBride, pro se .

Don G. Pope, Attorney at Law, Norman, Oklahoma, and Richard Mann, District
Attorney’s Office, Oklahoma City, Oklahoma, for the Defendants-Appellees.
Before HENRY , BALDOCK , and LUCERO , Circuit Judges. 1

HENRY , Circuit Judge.

Joe R. McBride, a state prisoner, brought suit pursuant to 42 U.S.C. § 1983

against Integrity Health Care, Inc., Wexford Health Services, and various

employees of the Oklahoma County Detention Center (“OCDC”), arguing that his

constitutional rights were violated while he was incarcerated at the OCDC.

During the proceedings below, the district court granted summary judgment to

some of the defendants and dismissed others on the basis of failure to state a

claim. Mr. McBride now appeals. We affirm in part, vacate in part, and remand.

I. DISCUSSION

On appeal, Mr. McBride asserts three arguments: (1) that his Eighth and

Fourteenth Amendment rights were violated when he was denied proper medical

care; (2) that his First, Fourth, and Fourteenth Amendment rights were violated

when he was deprived of access to the courts; and (3) that his Eighth and

Fourteenth Amendment rights were violated when he was forced to live in

1
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted
without oral argument.

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unsanitary conditions for three days. Because Mr. McBride is proceeding pro se,

we liberally construe his pleadings. See Haines v. Kerner , 404 U.S. 519, 520-21

(1972).

A. Standard of Review

We review a district court’s grant of summary judgment de novo. See

Adarand Constructors, Inc. v. Slater , 228 F.3d 1147, 1161 (10th Cir. 2000). We

also review de novo an order dismissing a prisoner’s case for failure to state a

claim. See Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir.

1999) (establishing de novo standard of review for a dismissal under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim); see also Sanders v. Sheahan , 198

F.3d 626, 626 (7th Cir. 1999) (noting the same standard of review for a dismissal

under 28 U.S.C. § 1915A for failure to state a claim). Notably, “[i]n reviewing

the dismissal of a complaint, [a]ll well-pleaded facts, as distinguished from

conclusory allegations, must be taken as true. In addition , we will take the

allegations in [the] plaintiff’s objections to the magistrate’s report [and

recommendation] as true.” Dunn v. White , 880 F.2d 1188, 1190 (10th Cir. 1989)

(emphasis added) (citations and internal quotation marks omitted).

B. Medical Care

Mr. McBride’s first argument is that defendant Dr. Harvey violated his

constitutional rights two different times: first, by failing to give proper medical

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care and, second, by delaying in providing medical care. As to the first part of

the claim (i.e., failure to give proper medical care), we conclude that the district

court properly granted summary judgment: Mr. McBride never demonstrated

deliberate indifference on the part of Dr. Harvey. See Estelle v. Gamble , 429

U.S. 97, 106 (1976) (“In order to state a cognizable claim, a prisoner must allege

acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs. It is only such indifference that can offend evolving

standards of decency in violation of the Eighth Amendment.”) (internal quotation

marks omitted).

However, as to the second part of the claim (i.e., delay in providing

medical care), we conclude that the district court erred. Mr. McBride alleged the

following facts in his complaint and objections to the magistrate’s report and

recommendation: (1) Prior to being incarcerated at the OCDC, Mr. McBride

suffered a gunshot wound to the leg and underwent surgery; (2) once at the

OCDC, Mr. McBride was treated by Dr. Harvey on April 10, 1997, because of

pain in his leg; (3) after being treated, Mr. McBride continued to experience pain;

(4) consequently, Mr. McBride filed multiple grievances and sick call slips

informing Dr. Harvey, among others, of the pain; (5) Dr. Harvey did not see Mr.

McBride again until May 30, 1997; and (6) Mr. McBride no longer has “full

functions of [his] leg to this day.” Rec., doc. 45, at 3.

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 According to the district court, Mr. McBride failed to state a claim because

he did not allege substantial harm as a result of Dr. Harvey’s delay. See Olson v.

Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (noting that a “[d]elay in medical care

can only constitute an Eighth Amendment violation if there has been deliberate

indifference which results in substantial harm”) (internal quotation marks

omitted). However, as noted above, Mr. McBride stated explicitly that Dr.

Harvey’s delay caused him “not to have full functions of [his] leg to this day.”

Rec., doc. 45, at 2-3. Because officials may be “held liable when [a] delay results

in a lifelong handicap or a permanent loss,” Hunt v. Uphoff , 199 F.3d 1220, 1224

(10th Cir. 1999), we fail to see how Mr. McBride did not allege substantial harm.

See also id. (“Delays that courts have found to violate the Eighth Amendment

have [also] frequently involved life-threatening situations and instances in which

it is apparent that delay would exacerbate the prisoner’s medical problems.”). Of

course, whether Mr. McBride will in fact be able to prove substantial harm – or a

“sufficiently serious” medical need, Farmer v. Brennan , 511 U.S. 825, 834 (1994)

– is a different question; but, for the purposes of this appeal, our concern is

otherwise. We need only ask whether Mr. McBride, proceeding pro se, has

alleged sufficient facts to overcome the pleading hurdle.

C. Access to Courts

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 Mr. McBride next contends that defendants Major Dear and Sgt. Wade

violated his constitutional rights by failing to act on his requests to have checks

issued to the Oklahoma County court clerk and law library so as to obtain legal

materials. The district court held that Mr. McBride failed to state a claim because

he did not allege, in his complaint, actual injury as a result of the defendants’

inaction. See Lewis v. Casey , 518 U.S. 343, 351 (1996) (“Because [there is not]

an abstract, freestanding right to a law library or legal assistance, an inmate

cannot establish relevant actual injury simply by establishing that his prison’s law

library or legal assistance program is subpar in some theoretical sense. That

would be the precise analog of the healthy inmate claiming constitutional

violation because of the inadequacy of the prison infirmary. Insofar as the right .

. . is concerned, meaningful access to the courts is the touchstone, and the inmate

therefore must go one step further and demonstrate that the alleged shortcomings

in the library or legal assistance program hindered his efforts to pursue a legal

claim.”) (citations and internal quotation marks omitted).

We hold that the district court properly dismissed this claim. Admittedly,

Mr. McBride claimed, in his objections to the report and recommendation, that he

suffered actual injury because the defendants’ actions prevented him from filing

pretrial motions on his criminal charges: “I repeatedly requested to [Major] Dear

and [Sgt.] Wade to make me a check for the purpose of getting legal material, but

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one was never made, therefore, I was deprived of meaningful access to the courts,

for I had no way of knowing how to file a pre trial motion, nor how to file an

appeal after I was convicted, I lost my appeal because of this denial, and could

not file illegal search and seizour [sic] motions.” Rec., doc. 45, at 5. However,

Mr. McBride still failed to allege sufficient facts to satisfy the actual injury

requirement: For example, he did not describe sufficiently the legal materials he

was seeking, see Petrick v. Maynard , 11 F.3d 991, 995 (10th Cir. 1993) (noting

that “a prisoner must do more than make a mere conclusory allegation of need for

unspecified or unlimited materials”); he did not clarify that the OCDC library and

its resources were inadequate for his needs, see id. (noting that the library and its

resources were “inadequate” for the plaintiff’s “legitimate queries”); and he did

not explain that his legal claim was nonfrivolous. See Penrod v. Zavaras , 94 F.3d

1399, 1403 (10th Cir. 1996) (holding that the “[p]laintiff failed to allege that the

library restrictions placed on unassigned prisoners hindered his effort to pursue a

nonfrivolous legal claim”). Although “pro se complaints, like the one involved

here, are held to less stringent standards than formal pleadings drafted by

lawyers,” Dunn , 880 F.2d at 1190 (internal quotation marks omitted), the pleading

hurdle is not automatically overcome.

D. Living Conditions

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 Finally, Mr. McBride argues that defendants Major Dear, Sgt. Salilis, and

Sgt. Cambridge 2
violated his constitutional rights by forcing him to live in squalor

– more specifically, a feces-covered cell – for three days. 3
Under the Eighth

Amendment, jail officials must

provide humane conditions of confinement by ensuring inmates
receive the basic necessities of adequate food, clothing, shelter, and
medical care and by taking reasonable measures to guarantee the
inmates’ safety. To hold a jailer personally liable for violating an
inmate’s right to humane conditions of confinement, a plaintiff must
satisfy two requirements, consisting of an objective and subjective
component.

The objective component requires that the alleged deprivation
be sufficiently serious. . . .

The subjective component requires the jail official to have a
sufficiently culpable state of mind. In the context of prison-
conditions claims, the required state of mind is one of deliberate
indifference to inmate health and safety.

2
In his brief, Mr. McBride identifies the third defendant as Detention
Officer Flemming. However, in his complaint, Mr. McBride named Sgt.
Cambridge.
3
Mr. McBride also asserts that Sgt. Salilis and Sgt. Cambridge violated his
constitutional rights by threatening to spray him with mace. However, acts or
omissions resulting in an inmate being subjected to nothing more than threats and
verbal taunts do not violate the Eighth Amendment. See Collins v. Cundy , 603
F.2d 825, 827 (10th Cir. 1979) (“Verbal harassment or abuse of the sort alleged in
this case [i.e., sheriff threatened to hang prisoner following prisoner’s request to
mail some legal correspondence] is not sufficient to state a constitutional
deprivation under 42 U.S.C. § 1983.”).

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Craig v. Eberly , 164 F.3d 490, 495 (10th Cir. 1998) (citations and internal

quotation marks omitted).

The district court held that Mr. McBride failed to state a claim because he

admitted in his amended complaint that cleaning supplies (namely, a broom, a

mop, a bucket, water, and a half-gallon of disinfectant) were provided to the

inmates every afternoon. Had Mr. McBride so admitted, then the district court’s

conclusion would be proper but, in his objections to the report and

recommendation, Mr. McBride clarified the situation:

I state in my amended complaint that 2 inmates are picked to clean
the pod not the cells[.] . . . [T]he pod officer comes into the pod then
he counts the inmates, then he goes and gets the mop, broom, and
bucket and comes make all but 2 inmates stay in [their] cell, then he
allows the 2 inmates to clean the pod area . . . . Then after the 2
inmates get does the pod [officer] takes the mop bucket and broom
and stuff back out of the pod and then the other inmates are let out of
[their] cage/cell.

Rec., doc. 45, at 7 (emphasis added); see also Howard v. Adkison , 887 F.2d 134,

140 (8th Cir. 1989) (“The simple fact that the cleaning supplies were present in

[the plaintiff’s] unit does nothing to show that he was provided with them.”).

Because of Mr. McBride’s clarification, we must undertake the inquiry

anew – i.e., did Mr. McBride fail to state a claim given not only the allegations in

his pleadings and but also his objections to the report and recommendation? In

arriving at our answer, we note first that conditions, such as a filthy cell, may be

“tolerable for a few days.” Hutto v. Finney , 437 U.S. 678, 687 (1978). However,

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“the length of time a prisoner must endure an unsanitary cell is [simply] one

factor in the constitutional calculus”; equally important is “the degree of filth

endured.” Whitnack v. Douglas County , 16 F.3d 954, 958 (8th Cir. 1994). In

other words, “the length of time required before a constitutional violation is made

out decreases as the level of filthiness endured increases.” Id. ; see also Fruit v.

Norris , 905 F.2d 1147, 1151 (8th Cir. 1990) (holding that requiring inmates to

work for even ten minutes in a well where they faced “a shower of human

excrement without protective clothing and equipment would be inconsistent with

any standard of decency”) (internal quotation marks omitted).

Not surprisingly, human waste has been considered particularly offensive

so that “courts have been especially cautious about condoning conditions that

include an inmate’s proximity to [it].” Id. ; see also LaReau v. MacDougall , 473

F.2d 974, 978 (2d Cir. 1972) (holding that “[c]ausing a man to live, eat[,] and

perhaps sleep in close confines with his own human waste is too debasing and

degrading to be permitted”). Given the totality of the circumstances – i.e., the

three-day period and the proximity of human waste – we hold that Mr. McBride

alleged sufficient facts to demonstrate a sufficiently serious condition of

confinement. Cf. Sperow v. Melvin , No. 96-4219, 1999 WL 450786, at *1-2 (7th

Cir. June 24, 1999) (unpublished opinion) (holding that plaintiff’s claim that he

was placed in an unsanitary cell – i.e., human feces and urine on the walls and

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floor, pieces of a mattress on the floor caked with feces and urine, and a dozen

plastic food trays with decayed food – and refused cleaning supplies for three

days was sufficient to overcome Fed. R. Civ. P. 12(b)(6) motion to dismiss for

failure to state a claim). Because Mr. McBride also alleged sufficient facts to

establish deliberate indifference on the part of the defendants, we conclude that

the district court erred in dismissing on the basis of failure to state a claim. See

Craig , 164 F.3d at 495 (noting that, to prove an Eighth Amendment violation, the

plaintiff must prove a sufficiently serious deprivation and deliberate

indifference).

E. Title 42 U.S.C. § 1997e(a) and § 1997e(e)

As a final note, we emphasize that our review of this case has focused

primarily on the issue of whether Mr. McBride alleged sufficient facts to state a

claim. We do not address on appeal, but the district court must consider, whether

Mr. McBride’s suit might be barred on other grounds such as 42 U.S.C. §

1997e(a), which requires exhaustion of administrative remedies, and § 1997e(e),

which requires a prior showing of physical injury for mental or emotional injury

suffered while in custody.

For the forgoing reasons, we AFFIRM the district court’s decision in part,

VACATE in part, and REMAND for further proceedings consistent with this

opinion.

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