dissenting.
Fairly read, the opinion of the majority seems to hold that the basic questions for decision are whether the conditions of confinement of appellant could be found to be punitive and whether, either inferably or directly, the evidence of punitive intent was sufficient to go to the jury.
In seeking answers to these questions, the majority factually has painted an unnecessarily dismal picture. Thus, some brief recapitulation of fact is indicated.
Villanueva, a pretrial detainee charged with serious crimes of violence, was moved from the jail at Clayton, Missouri to the more rural setting at Gumbo while the Clayton facility was being renovated. Af*856ter transfer on June 23, 1978 he was initially held for a period of five days in what is called the lower treatment area. That area, evidently much the same as the upper treatment area but with somewhat more amenities, is one in which new arrivals charged with serious crimes are held for a brief time. Thereafter Villanueva was moved to the upper treatment area, a maximum security unit, where he was housed both day and night through July 16, a period of nineteen full days. On July 17 and July 18 Villanueva was away from Gumbo by day attending his trial on felony charges. He spent the nights of July 17 and July 18 at Gumbo and checked out finally the morning of July 19. Villanueva’s complaints, found possibly meritorious by the majority, principally relate to the nineteen days of confinement in the upper unit rather than to the entire period of twenty-six or twenty-seven days running June 23 to July 19.
Conditions said to be related to restricted confinement are overstated as well. The record reflects that Villanueva was bitten by a rodent described by him as a “rat” (probably a field mouse) three inches long. Only one other inmate had ever seen a rat in the unit, and no other evidence of the presence of rats, such as droppings, had been discovered although it did appear that at times field mice from nearby fields had come in. Whatever the genre of the vicious beast in question, it bit and broke the skin on Villanueva’s left hand for a distance of about Vie inch. The incident was reported to a medical officer but no treatment was administered (none is shown to have been required) and no serious consequences are shown to have developed. There is no justification for any conclusion that the rodent would not have bitten Villanueva had the cell door been opened wide or that the rodent was “housed”, as the majority declares, in Villanueva’s cell.
As to insects and sanitary conditions in general, there is no indication that the maximum security unit was permitted to remain in generally poor condition. The food preparation and service areas at Gumbo were sprayed regularly. The pipes through the cell walls which served as transit avenues for roaches were sprayed regularly as well. Each detainee had access to a broom and bedding was changed weekly. While there were some bugs, doubtless the bugs were not restricted to maximum security cells.
Maximum security detainees ate the same food as did all inmates and employees. While Villanueva found roaches in his food a couple of times, it is not suggested that their presence was deliberate or intentional on the part of defendants who ate from the same kitchen.1 Villanueva used the Commissary thirteen times, had visits, showered and exercised every second or third day, had law books brought to him, and used the telephone. He was not insulted, starved or physically abused in any way.
It is true that at times due to a shortage of officers he was not permitted to shower and exercise daily and his freedom of movement was more restricted than it had been during the last weeks he was at the Clayton jail. And it is this restriction of movement that must support the result reached by this court if that result is to be supported.
No complaint of the initial classification of Villanueva as a security risk could be voiced or is voiced. He was facing serious charges of assault with intent to kill, forcible rape and sodomy on two of which charges he was later convicted.2 His bail was fixed at $75,000.00, later reduced to $30,000.00. His keeper was obliged to keep Villanueva under restrictions reasonably related to the goals of insuring Villanueva’s presence and maintaining order in the jail. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981); Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980).
*857The initial classification was carried over or renewed when Villanueva was transferred to Gumbo and Gumbo authorities had no authority to change it without Clayton’s consent.
While it is true that Lenninger knew of the classification and of the restrictions on Villanueva’s movements, it is true also that Gumbo authorities undertook review of the classification with Clayton authorities each week and no change was ever ordered.
It is equally true that Lenninger and the other defendants knew or should have known that at times Villanueva was exercised and bathed less frequently than the prison rules required.
But Lenninger could not make bricks without straw. Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970). He could not alter classifications. He was a subordinate officer in the system and there is no reason to believe that he or the other defendants could either reject the prisoners thrust upon Gumbo by Clayton authorities or employ additional personnel to deal with those prisoners.
As the majority makes clear, we have said that an excuse such as shortage of officers is not a valid defense, but the cases from this circuit cited by the majority in support of its statement all refer to contexts in which injunctive relief is sought as a means of reform of an ongoing social institution. See, e. g., Seward v. Hutto, 525 F.2d 1024, 1025 (8th Cir. 1975), quoting Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). See generally O. Fiss, The Civil Rights Injunction (1978).
We have also held that an action for damages against state officials under section 1983 must be based upon a claim arising out of a clear violation of claimant’s federally protected rights. Villanueva has made no such showing of law or fact as would warrant submission of his case to a jury. Indeed, had the case been submitted and had the jury gone so far astray as to return a verdict for plaintiff, on motion for a new trial the district court would have been required to set aside the verdict.3
This dissent sounds no retreat, cf. Rhodes v. Chapman, - U.S. -, -, 101 S.Ct. 2392, 2402, 69 L.Ed.2d 59 (1981) (Brennan, J., concurring), from the policy of careful judicial scrutiny of prison conditions and practices that has obtained in this circuit at least since Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), but it is time to end judicial scrutiny of Villanueva’s claim which has twice been before the district court, twice been before the court of appeals, and is completely without merit. The judgment of the district court should be affirmed.
. It is not entirely clear that Villanueva testified that he found hair in his food. He said, “Well, since we got our food taken up there from the kitchen, you could expect to find hair in the food, or, as I found, a few roaches in my food a couple times.”
. Villanueva testified that he was convicted on the assault and sodomy charges.
. On motion for new trial, of course, the verdict is set aside if it is against the clear weight of the evidence, Fed.R.Civ.P. 59, while on motion for directed verdict or for judgment n.o.v. the standard is somewhat more restrictive on the district court. Firemans Fund Ins. Co. v. AAL-CO Wrecking Co., 466 F.2d 179, 186 (8th Cir. 1972).
Since juries ordinarily can be expected to render a proper verdict trial judges at times have found that reservation of ruling on a motion for directed verdict and submission of the case to the jury will make it unnecessary for the court ever to rule on the motion.