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Anderson Harrison Frye, Jr., Appellant, v. Pettis
County Sheriff Department; Gary Starke, Pettis County Sheriff; Bill Breuning,
Sergeant; Kevin Tylar, Corporal; John McCombs; Jason Atwell, Appellees.
No. 02-1809
UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
July 11, 2002,
Submitted
July 26, 2002, Filed
NOTICE:
RULES OF THE EIGHTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PER CURIAM.
Anderson Harrison Frye, Jr.
brought this 42 U.S.C. § 1983 action pro se against the Pettis County Sheriff
Department, the Sheriff, and his deputies alleging unsafe and hazardous living
conditions at the Pettis County jail violated his Eighth Amendment rights. The
district court * granted summary judgment to the officials, and Frye appeals
pro se. We affirm.
Frye, a pretrial detainee, was
placed in the Pettis County jail on May 2, 2000. According to Frye's amended
complaint and affidavit, the toilet in his cell leaked both sewage and water.
From the beginning, Frye complained to the Sheriff and deputies verbally and in
writing, stating the "foul water and sewage [were] making the cell unbearable
to live in." Frye asked them to have the toilet fixed, or to move him to
another cell. The deputies provided blankets to help absorb the leakage, but
did not move Frye. On
May 24, 2000, Frye slipped on water in his cell and fell, striking his head and
back on the toilet and floor. He was taken in an ambulance to the emergency
room at Bothwell Regional Health Center. The ambulance report states the
technicians found Frye lying on a wet floor and observed water puddles and a
sheet by the toilet soaked with water. Doctors examined Frye and diagnosed a
closed head injury, a concussion, and back and knee sprains. Frye was
discharged and returned to the same cell. On June 13, 2000, a plumber attempted
to repair the toilet. Frye was removed from the cell on July 21, 2000, and
convicted of forgery. He is now a state prisoner, and alleges his current medical
problems, including hearing loss and seizures, are a result of the fall.
To prevail on a
condition-of-confinement claim, inmates and pretrial detainees must show (1)
the condition was serious enough to deprive them of the minimal civilized
measure of life's necessities, or to constitute a substantial risk of serious
harm, and (2) officials were deliberately indifferent to the inmates' or
detainees' health and safety. Smith
v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996); Shannon v. Graves, 257 F.3d
1164, 1168 (10th Cir. 2001). The
district court concluded there is no evidence from which a jury could find the
officials were deliberately indifferent to Frye's complaints about the leaky
toilet or the health and safety of prisoners. On appeal, Frye asserts that
there was.
Frye argues that because his
cell was inundated with foul water and raw sewage for the ten weeks that he
lived there, the officials failed to act in the face of an unjustifiably high
risk of harm that was either known or so obvious that it should have been known
to them. "Constructive knowledge, or the 'should-have-known'
standard, is not sufficient to support a finding of deliberate
indifference," however. Spruce v.
Sargent, 149 F.3d 783, 786 (8th Cir. 1998). Deliberate indifference is a
difficult standard to meet. Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998).
[*908] Mere negligence is
not enough. Daniels v. Williams, 474
U.S. 327, 330-31, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). To show deliberate
indifference, Frye must prove the officials knew of facts from which they could
infer a substantial risk of serious harm existed and that the officials drew
that inference. Perkins v. Grimes, 161
F.3d 1127, 1130 (8th Cir. 1998). Here, Frye acknowledges the deputies
frequently provided blankets or towels to absorb water and a plumber who tried
to fix the toilet once after Frye fell. Thus, the officials responded to the
complaints and tried to remedy the problem. Undoubtedly, the blankets helped. The fact that the remedies fell
short of curing the problem does not show the officials were deliberately
indifferent to Frye's health and safety. As the district court stated,
"The uncontested evidence does not support a finding that the prison
officials were aware that the towels were insufficient to maintain a safe area
or that the leakage was sufficiently serious that the prisoners had a
substantial risk of falling which would cause serious harm."
Frye also asserts the district court should have allowed him to proceed
with discovery so he could show the officials knew of a serious risk of harm
and intentionally disregarded it for an offensive amount of time. Federal Rule
of Civil Procedure 56(c) does not require the completion of all discovery
before a court may properly grant summary judgment, however. Dulany v. Carnahan, 132 F.3d 1234, 1238 (8th
Cir. 1997). The Rule allows a party opposing summary judgment to seek a
continuance and postpone a summary judgment decision until adequate discovery
has been completed. Id. Although Frye sought continuances, he did not do so on
the basis that he needed more discovery. Thus, the district court did not abuse
its discretion in granting summary judgment based on the record before it. Id.
Besides, the discovery would not help Frye's case. Because we must view the
record in Frye's favor, we assume, as the district court did, only one repair
call by the plumber. Thus, Frye needs no proof to contradict the plumber's
affidavit that he made several repair calls. Further, the officials do not
dispute that the inmates filed grievances and made complaints about the leaky
toilet. The discovery sought is simply not material.
We affirm the district court's order granting summary judgment
to the officials. We grant Frye's unopposed motion to supplement the record
with the specific dates of his incarceration in the Pettis County jail, his
pre- and post-injury requests to be moved from the cell containing the leaky
toilet, and an account activity report received from the county auditor showing
payment to the plumber for stool repair at the jail on June 13, 2000.
* The Honorable Nanette K. Laughrey, United States District Judge
for the Western District of Missouri.