Shannon v. Graves

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 10 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RACHELLE SHANNON,

Plaintiff - Appellant,
vs. No. 00-3029

BILL GRAVES, Governor of the State
of Kansas; RICHARD D. KOERNER,

Defendants - Appellees.

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

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.

KELLY, 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

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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

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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,

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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

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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

1
In connection with another complaint, Ms. Shannon surmised that
“Diarrhea frequently spreads here, possibly because of all the exposure to raw
sewage (drains & pit) . . . .” R. Doc. 1 (Form 9 dated 12/27/96). This statement
cannot be considered evidence of actual injury because it is purely speculative.

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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 negligence–not a wanton and obdurate disregard for inmate

health and safety. See Good v. Olk-Long, 71 F.3d 314, 316 (8th Cir. 1995)

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(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 warmth. Despite the undisputed evidence that the sewage-soaked

blankets are washed in a commercial washer, using clean water, detergent and

bleach, the jury could conclude that those efforts are insufficient to remove the

fecal contamination based upon the following evidence: (1) blankets are not

simply splashed with sewage but are, instead, used to soak up sewage when

toilets and drains back up; (2) blankets and clothing continue to smell of sewage

after being laundered; and (3) inmates feel compelled to re-rinse their clothing

after it returns from the laundry and, when they do so, the resulting rinse water is

brown. Viewing the evidence in the light most favorable to Ms. Shannon, her

claim is that the items are still contaminated with sewage after laundering with a

consequent risk to human health.

Turning to the subjective component of an Eighth Amendment claim

concerning the blankets and clothing, nothing in the record indicates that prison

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officials were aware of this condition prior to Ms. Shannon’s filing of her

complaint; Ms. Shannon did not adequately controvert that section of the

Martinez report indicating that she has never complained that the laundry process

results in items being contaminated with sewage, or filed a grievance about it.

Doc. 14, at 11. She did respond that she had turned in a grievance a month

before filing the complaint about having to store dirty laundry in cells prior to

laundering, that blues and whites were not clean, and that many items are not

returned. Doc. 18 at 6. Although prison officials will not be able to rely upon

their ignorance of the problem in the future, Ms. Shannon has not made a

showing of deliberate indifference in this case.

The sewage backups at the facility are equally troubling. Evidence in the

record suggests that prison officials are aware that the existing sewage system is

inadequate. Yet cases must be decided on the record, and what is before us does

not establish that these incidents are of such frequency and duration so as to

create a genuine issue of material fact concerning the objective component of an

Eighth Amendment violation. Although it is clear that there is a problem, its

scope is not defined in other than general terms without adequate reference to

frequency and duration. Cf. Hall v. Bellmon, 935 F.2d 1106, 1110-11 (10th Cir.

1991) (“a pro se plaintiff requires no special legal training to recount the facts

surrounding his alleged injury”). Also, the summary judgment evidence tends to

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show that problems are corrected by the maintenance staff, often within the next

day or two. R. Doc. 14, at Ex. 16. Although Ms. Shannon contends that “it is

most common that inmates have to complain to more than one officer, often for

weeks, before a work order is turned in for maintenance work,” R. Doc. 18 at 9,

she provides no specifics. While we believe that the Martinez report seriously

underestimates the potential hazard of exposure to raw sewage and the need for a

system-wide solution, what has been presented by Ms. Shannon concerning the

sewage backups is insufficient to withstand summary judgment on the objective

component of an Eighth Amendment claim.

AFFIRMED.

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No. 00-3029, SHANNON v. GRAVES, et al.

McKAY, Circuit Judge, concurring in part and dissenting in part:.

Ms. Shannon’s complaint alerts us to serious problems at the Topeka

Correctional Facility. Systemic sewage backups cause flooding in private cells;

the routine practice is to mop sewage with inmates’ blankets; soiled blankets are

then washed for reissue without special laundering treatment. Each of those

material facts are admitted or not denied. Further, Ms. Shannon alleges that

standing sewage has been ignored for as long as weeks and that reissued blankets

often weep brown liquid. Those assertions find no answer in Defendants’

response that the maintenance staff often corrects problems within a day or two

and that laundering procedures are according to policy. I join the majority’s

concluding remark that the “Martinez report seriously underestimates the potential

hazard of exposure to raw sewage,” but the deficiencies do not end there. Given

the material facts admitted and not denied, Defendants’ “deliberate indifference”

is genuinely at issue. Therefore, I must dissent.

The Constitution requires adequate conditions of confinement, and facility

officials may not be deliberately indifferent to inadequacies. I concur with the

majority’s legal framework but depart from the conclusion that there are no

genuine issues of material fact. First, regarding the inadequate laundering claim,

the majority holds that the complaint satisfies the objective component of the two-

part test but fails the subjective component because evidence does not expressly
confirm that facility officials were aware of inadequacies prior to Ms. Shannon’s

complaint. However, the record specifies that the obvious health risks attach to

Defendants’ own conduct, not in some unknown circumstance to which officials

might be ignorant prior to the filing of a complaint. See Farmer v. Brennan, 511

U.S. 825, 835-47 (1994) (explaining that deliberate indifference lies “somewhere

between the poles of negligence at one end and purpose or knowledge at the

other”). Because the health risks are obvious, the majority misplaces the burden

of proof. When there exists “an obvious risk to inmate health,” the burden is on

the “officials to prove that they were unaware.” Id. at 844. Defendants have

failed to carry that burden.

Defendants knowingly soak up sewage with inmates’ blankets and

supervise the laundering that precedes reissue. It is the inadequacy of these

routines that is genuinely at issue. The majority questions why inmates’ blankets

must be used at all, and the absence of an answer leaves me persuaded that

officials are deliberately indifferent–at the very least, these facts raise a prima

facie case that cannot be disposed of on summary judgment. This case cries out

for discovery and trial. Defendants do not deny that they replaced their own

carpet because it was futile to clean the damage done by sewage overflow, but

they continue to issue the sewage-soaked blankets to inmates. Defendants’

meager defense–that all articles are washed according to guidelines–manifests

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indifference to the fact that the unusual soiling of these blankets may well exceed

the degree of filth contemplated by usual washing guidelines. All told, the

evidence admitted and not denied easily establishes “genuine issues” about

official indifference to laundering practices, which is a material fact in this case.

Second, regarding the exposure to raw sewage claim, relying on lack of

“frequency and duration” evidence, the majority holds that Ms. Shannon failed to

satisfy the objective portion of the two-part test. Interpreting the evidence in a

light most favorable to Ms. Shannon, as we are required to do, she has been

exposed to raw sewage for as long as weeks at a time and, in my view, that is

clearly an objective problem, even if the maintenance crew often cleans up within

a day or two. In addition, Defendants concede that the root of the entire problem

is an inadequate grinder, which they imply could be remedied by installing a

heavy-duty grinder. With that known alternative available, cost may not be an

adequate defense to this continuing, serious medical threat. Defendants have

failed to refute the fact that, given past experience and the continuing nature of

the problem, Ms. Shannon has a reasonable expectation of future exposure to a

serious health hazard.

Given the genuine issues of material fact, I would reverse and remand.

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