IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10786
(Summary Calendar)
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WILLIAM ROBERT McCORMICK,
Plaintiff-Appellant
vs.
RUSTY WEST, M.D.;
MONTAGUE COUNTY JAIL,
Defendants-Appellees
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Appeal from the United States District Court
for the Northern District of Texas
(4:94-CV-490-E)
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April 18, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
In this pro se prisoner action, William Robert McCormick filed
a § 1983 suit in forma pauperis against Rusty West, M.D. and the
Montague County Jail for violations of his civil rights. The
complaint alleged that Dr. West and the jail failed to provide him
adequate medical care and placed him overnight in a “Chinese
cell” -- a cell that had no toilet facilities, save a hole in the floor,
or bedding -- all in violation of the Eighth Amendment.
McCormick subsequently moved to substitute Sheriff Kevin
Benton for the jail as party defendant. The district court granted
Dr. West’s motion for summary judgment and dismissed as
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in Local Rule 47.5.4.
frivolous the claims against the jail and sheriff. McCormick
appeals from the district court’s disposition of the case,
complaining that the court abused its discretion in refusing to
accept various pleadings for filing, and that it reversibly erred
both in granting Dr. West’s summary judgment motion and
dismissing the claims against the jail and sheriff. We affirm in
part, reverse in part, and remand for further proceedings.
In adjudicating Dr. West’s motion for summary judgment,
the district court found that “McCormick’s allegations amount to,
at most, negligence and a difference of opinion with the Jail
doctor as to his treatment,” and that he therefore had not
demonstrated the “deliberate indifference” necessary to prevail
in a § 1983 suit based on the failure to provide constitutionally
sufficient medical care under the Eighth Amendment. We find
no error in this ruling and affirm.
We also find that the trial court did not abuse its discretion
in refusing to accept certain filings because they did not comport
with local rules. The record reveals that, with the exception of
the documents requesting a temporary restraining order, the
pleadings ordered unfiled by the district court were either not
required to be filed or were subsequently accepted for filing. The
district court apparently construed the pleadings responsive to
its show cause order and gave them “full consideration,” despite
their late filing date, in ruling on the frivolousness of the case
against the Montague County jail. As McCormick could not have
shown he was entitled to a temporary restraining order, and was
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not materially affected by the failure to accept filing of the other
pleadings, he was not denied access to the court and was not
prejudiced by the district court’s refusal to accept the pleadings
for filing.
We nonetheless determine that remand is required in this
matter. The district court dismissed as frivolous the claims
against the jail, even assuming the substitution of Sheriff Benton,
on the ground that McCormick had failed to allege an official
policy or custom, a necessary element in a suit against
government officials in their official, rather than individual,
capacity. See Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
Although we find no error with respect to the district court’s
dismissal of McCormick’s claim that the jail and Sheriff Benton
denied him adequate medical care, his complaint that he was
placed in a “Chinese cell” lacking toilet and bed facilities should
not have been dismissed as frivolous under 28 U.S.C. § 1915(d).
Courts have found such prison conditions to be cruel and
unusual punishment violating the Eighth Amendment. See, e.g.
Kirby v. Blackledge, 530 F.2d 583, 586 (4th Cir. 1976) (placement in
“Chinese cell” in which there is no bedding, no light and no toilet
facilities save a hole in the wall violates Eighth Amendment);
McCray v. Sullivan, 509 F.2d 1332, 1336 (5th Cir. 1975)(placement of
prisoners in small cell with no beds, toilets, sinks or other
facilities, other than hole in the cell floor that serves as toilet, is
cruel and unusual punishment); see also Bienvenu v. Beauregard Parish
Police Jury, 705 F.2d 1457, 1460 (5th Cir. 1983)(allegation that
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defendant intentionally subjected prisoner to “cold, rainy, roach-
infested facility and furnished him with inoperative, scum-
encrusted washing and toilet facilities sufficiently alleges a cause
of action cognizable under 42 U.S.C. § 1983 and the eighth and
fourteenth amendments.”). Moreover, the existence and use of
such facilities clearly suggest a custom or policy of the prison
implicating the sheriff in his official capacity. As such,
McCormick has stated a nonfrivolous claim that must be
remanded for further development.
DECREE
For the foregoing reasons, the district court’s order dated
June 21, 1995, dismissing the claims against Dr. West is
affirmed; the district court’s order dated August 7, 1995, is
reversed to the extent that it dismissed McCormick’s claim of
impermissible placement in a “Chinese cell”; and the case is
remanded for further proceedings.
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