Opinion
CIVIL ACTION No. 99-3285-GTV.
December 14, 2000.
MEMORANDUM AND ORDER
Plaintiffs, former inmates in the Coffey County Jail, bring this lawsuit against the following Defendants: the Board of County Commissioners for Coffey County, Kansas; Randy Rodgers, in his individual capacity and as Sheriff of Coffey County; head jailer Jim Huginin in his individual capacity; jailers David Burns, Jan Koonce, Mike Glover, Keith Eccles, Brian Garland, and Melanie Snovell in their individual capacities; and maintenance supervisor John Andrick in his individual capacity. Plaintiffs allege in their complaint that Defendants violated their Eighth Amendment rights by (1) failing to provide adequate health care; (2) failing to properly heat the jail; (3) failing to keep the jail free of insect infestation; and (4) failing to protect Plaintiff Clayton Gish from inmate attack. Plaintiffs further allege that Defendants negligently breached duties under Kansas tort law. Defendants filed a motion for summary judgment (Doc. 45) addressing all of Plaintiffs' claims. The motion is based on the lack of constitutional violations alleged by Plaintiffs and the qualified immunity of Defendants sued in their individual capacity. For the reasons set forth below, that motion is granted.
The complaint does not clearly state in which capacities Plaintiffs are suing Defendants. In paragraph seven of their complaint, Plaintiffs allege that Defendants were acting in their official capacities. However, in section XI of Plaintiffs' response to Defendants' motion for summary judgment, Plaintiffs state that they "have filed claims against the defendants in their individual capacit[ies]." Where it is unclear whether officials are sued in their official capacities or their individual capacities or both, a court should look to the "`course of proceedings.'" Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) (quotingBrandon v. Holt, 469 U.S. 464, 469 (1985)). From the course of proceedings, the court concludes that the jailers and John Andrick are sued only in their individual capacities and that Sheriff Rodgers is sued in both his official capacity and individual capacity.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. See Anderson, 477 U.S. at 256. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id. The court must consider the record in the light most favorable to the nonmoving party. See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
II. FACTUAL BACKGROUND
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiffs' case. Immaterial facts and facts not properly supported by the record are omitted.
A. Facts Relevant to Douglas Prasko's Claims
Douglas Prasko was incarcerated in the Coffey County Jail from December 28, 1997 through March 5, 1998. When he entered the jail, Prasko told Defendant David Burns that he was taking prescription medication for a sinus and bronchial infection. However, neither the infection nor the prescription medication was noted on his inmate medical record.
The record is not clear; Prasko's incarceration may have begun on December 29, 2000. The factual discrepancy is immaterial, however.
On December 30, 1997, Prasko told Defendant Jim Huginin that he was having problems with his knee. The following day, he showed his knee to Defendant Jan Koonce, who acknowledged that it was swollen. Prasko was given anti-inflammatory medication later that day.
On January 1, 1998, Prasko asked Defendant Huginin for an extra blanket because of the cold temperature in his cell. Defendant Huginin did not give him one that night, but the next night, Prasko was issued an additional blanket.
Around 2:00 p.m. on January 3, 1998, Prasko informed Defendant Mike Glover that he had pain in his abdomen. Prasko had a lump above his navel, but did not show it to Defendant Glover at that time. Defendant Glover told him that all doctor visits had to be approved by Defendant Huginin, and that Huginin would not return until Monday (January 5). However, Defendant Glover continually checked on Prasko throughout the afternoon. Around 4:30 p.m., Defendant Glover asked a doctor to send some medication to the jail for Prasko. By 6:30 that night, Prasko was administered the medication. The pain subsided by 7:30 or 8:00 that night. Prasko was given more medication at approximately 8:45 p.m.
On January 5, 1998, Prasko broke out in hives and asked to see a doctor. The jail log reflects that he was given Benadryl cream the next day, on January 6. After two days, the hives had not subsided and were weeping and bleeding. On January 7, Prasko wrote a letter to Defendant Randy Rodgers, and on the morning of January 8, Defendant Rodgers looked at Prasko's hives and instructed Defendant Huginin that Prasko should see a doctor that day. Prasko believes that this was the first time that Defendant Rodgers had heard of his problems. On January 8, Prasko saw a doctor and was administered medication. Prasko mentioned to the doctor that his abdomen was feeling better. The hives cleared up after about a week.
Prasko began work-release on January 29, 1998. At about that time, he was moved to a new cell. He requested an additional blanket from Defendant Keith Eccles after the first night, but was not given one. The next morning, Defendant Koonce found Prasko wrapped up in a ball shivering. Defendant Koonce left the hall door open that night to let more heat in the cell. Prasko states that Defendant Koonce later closed the hall door, but gave him an extra blanket and moved him to another cell the following night.
The jail log reflects that he was moved on January 28, the day before he began work release. Prasko claims that he was moved two days after beginning work release.
After he began work release, Prasko's abdomen became sore and tender. On February 14, 1998, Prasko saw a doctor who told him that he had a hernia. The hernia was related to his abdominal pains which were treated in early January. Prasko claims that the hernia resulted from his persistent coughing caused by the cold jail which exacerbated his bronchitis. Prasko met with another doctor on February 24, who scheduled him for surgery on March 2, 1998. Prasko continued the work release program through March 2, and had surgery for the hernia on March 3. Prasko had a second, related surgery on a later date.
Prasko states that neither Defendant Koonce nor Defendant Rodgers did anything to harm him. He also states that he is not claiming that Defendant Melanie Snovell denied him medical treatment, and that he does not know whether Defendant Brian Garland was involved in denying him medical treatment.
B. Facts Relevant to Clayton Gish's Claims
Clayton Gish was incarcerated in the Coffey County Jail from August 20, 1997 through February 16, 1998. Prior to his incarceration, Gish had a history of various medical ailments, including back problems and seizures. At the time he entered the jail, Gish gave his medical information to Defendant Huginin. Gish informed Defendant Huginin that he was taking prescription medication, but did not inform him of the quantity of that medication. Instead, the jailers read the dosage off a prescription bottle.
Gish told Defendant Koonce on August 21, 1997 that the jailers were overmedicating him. He was feeling light-headed and stumbling and falling into things. Gish filled out an inmate sick call request dated August 22, 1997 which indicated that the jailers had given him too much medication that morning. Later that day, the health nurse examined him and scheduled a doctor's appointment for August 26. The jailers called the pharmacy, and the pharmacy told them that the prescription label on the bottle was wrong. The pharmacy and the jail corrected the problem, and Gish began receiving the correct amount of medication. Gish continued to feel the adverse effects from the incorrect dosage for awhile.
On August 24, 1997, a fellow prisoner attacked Gish. Gish claims that the jailers generally were afraid of the attacker and that they usually did what he wanted them to do when he became belligerent. Defendant Koonce was present at the time of the attack, but did not physically intervene. Gish claims that when he told Defendant Koonce to "make [the other prisoner] go away," she did not say anything in response. Defendant Koonce claims, and the jail log reflects, that she called for backup. Backup arrived shortly and stopped the altercation. Gish went to his previously scheduled doctor's appointment on August 26, and the doctor diagnosed him with a separated rib.
Sometime around the medication dosage mix-up and the inmate attack, Defendant Huginin told Gish twice that he would "lock him down" in his cell if his medical problems did not stop. However, Gish was never locked down.
Because of several of his medical problems, including his history of seizures and a bad back, Gish chose not to sleep in the top bunk in various cells. (He was "not supposed to be off ground level.") If the bottom bunk was already taken, he slept on a mattress on the floor. He slept on the floor for varying periods of time, but never for more than one-and-a-half months. Gish alleges that when he was sleeping on the floor, insects crawled into his bedding. The record shows that during the six months Gish was incarcerated, the jail was sprayed for pests twice. It also shows that the jail was sprayed approximately five months before Gish's incarceration began.
Coffey County records showing purchase orders dates and payment dates to A-1 Pest Control reflect one purchase order date as January 17, 1997. However, the court interprets this date as erroneous. The court instead infers that the date should be January 17, 1998, because the purchase order number is a larger number than the March and August 1997 purchase order numbers, the pay date is January 30, 1998, and the check number is larger than the check numbers for the March and August 1997 services.
When the temperature outside was cold, it became so cold in Gish's cell that Gish claims he could see his breath. Gish claims that it was "unbearably cold" seventy percent of the time. However, he says that the jailers told him that they were trying to get the furnace fixed. He saw maintenance men pull up two or three times in a big truck or van. The record shows that during the months of November 1997 through February 1998, Chaney, Inc. serviced the heating and cooling system at the jail on nine different occasions. In addition, jailers tried to circulate the heat when the cells were cold, and issued extra t-shirts and blankets for warmth. Gish alleges, however, that he was only issued an extra blanket after several days of complaining and that he was not issued "cold weather clothing" at all.
From approximately September 29, 1997 through October 16, 1997, Gish made several sick call requests regarding pain in his eyes. He saw the health nurse on October 3 and told her that he wanted a dimmer light in his cell. On October 17, someone from the jail made a doctor's appointment for Gish for October 21. The doctor determined that he had photophobia. The jailers were told that the condition would not cause any permanent eye damage, but they did order an eye mask for Gish that never arrived.
III. DISCUSSION A. Personal Participation
Plaintiffs' claims against Defendants in their individual capacities are brought under 42 U.S.C. § 1983. "Individual liability under § 1983 must be based on personal involvement in the constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (citation omitted). Plaintiffs must allege facts that tend to "establish a connection or a link between the alleged misconduct and constitutional violations [of] any of the defendants." Aston v. Cunningham, No. 99-4156, 2000 WL 796086, at *3 (10th Cir. June 21, 2000).
Plaintiff Prasko admits that Defendant Koonce did nothing to harm him. In addition, he fails to allege facts that tend to show that either Defendant Snovell or Defendant Garland was the cause of any of his grievances. Consequently, the court concludes from the record that Defendants Koonce, Snovell, and Garland cannot be held individually liable for any of Prasko's claims.
Defendants do not address the lack of personal participation in their briefs. The court concludes based on an examination of the record that Prasko has not alleged facts sufficient to establish a link between Defendants Koonce, Snovell, and Garland and the claimed constitutional violations.
B. Qualified Immunity
In their motion for summary judgment, Defendants have asserted the affirmative defense of qualified immunity. Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Butler v. City of Prairie Village, 172 F.3d 736, 745 (10th Cir. 1999). To determine whether a government official is entitled to qualified immunity, the court first must decide whether the plaintiff has "`asserted a violation of a constitutional right at all.'" Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995) (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). If the plaintiff has made a valid claim, then the court must evaluate whether the asserted right was clearly established such that a reasonable person in the official's position would have known that his or her conduct violated that right. See id.; Merkel v. Leavenworth County Emergency Med. Servs., No. 98-2335-JWL, 2000 WL 127266, at *10 (D.Kan. Jan. 4, 2000).A defense based upon qualified immunity is ordinarily raised in a motion to dismiss, before the parties commence discovery. The purpose for addressing qualified immunity early is to protect the "substance" of the defense — to prevent defendants from being subjected to unnecessary and burdensome discovery. See Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). However, Defendants may be entitled to qualified immunity even after they have commenced discovery, if they raise the issue in a summary judgment motion. "Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Defendants in this case argue that they are entitled to qualified immunity because discovery failed to uncover evidence that Defendants' actions constituted violations of Plaintiffs' constitutional rights. The first prong of the qualified immunity test requires that there be a constitutional violation. In a prisoner case, prison officials commit a constitutional violation if they show deliberate indifference to prisoners' needs. The deliberate indifference standard requires a showing of more than mere negligence, or even gross negligence. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). It involves a two-part test. First, the prisoner must show that objectively, the alleged deprivation is "sufficiently serious." See Farmer, 511 U.S. at 834. Second, the prisoner must show that subjectively, the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. at 837. The deliberate indifference standard applies to each of Plaintiffs' claims. If Plaintiffs can show that Defendants exhibited deliberate indifference to their needs, then Plaintiffs can show that Defendants violated their constitutional rights, and the first prong of the qualified immunity test will be satisfied.
1. Lack of Health Care
A prisoner's Eighth Amendment rights are violated when deliberate indifference is shown to his "serious medical needs." See Estelle, 429 U.S. at 104. The court first must look to the objective component of the deliberate indifference test. A medical need is sufficiently serious "if it is `one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.C.N.H. 1977)). If a medical need is sufficiently serious, then the court then must evaluate whether, subjectively, the prison officials have shown deliberate indifference to that serious medical need.
When a delay in medical treatment is involved, courts will only find a constitutional deprivation "`if there has been deliberate indifference which results in substantial harm.'" Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)). Courts frequently hold that delays violate the Eighth Amendment when they "`involve life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner's medical problems.'" Gresham v. Flowers, No. 99-6397, 2000 WL 192926, at *2 (10th Cir. Feb. 17, 2000) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (citation omitted)). See, e.g., Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) (holding that a delay in treating a heart attack was "sufficiently serious," even if no evidence of damage resulting from the delay was shown); Hunt, 199 F.3d 1220 (holding that summary judgment for the defendants was inappropriate where prisoner alleged that denial of medical treatment for diabetes and hypertension resulted in a heart attack and bypass surgery); cf., e.g., Gresham, 208 F.3d 226 (holding that summary judgment for the defendants was proper where a prisoner had to wait approximately twenty-four hours before his broken wrist was set); Grant v. Bernalillo County Detention Ctr., No. 98-2193, 1999 WL 157415 (10th Cir. Mar. 23, 1999) (affirming district court's dismissal of complaint where prisoner alleged that officials delayed treating a back injury, but failed to allege the time of delay or that the delay resulted in substantial harm).
a. Douglas Prasko's Medical Claims
Plaintiff Prasko alleges several medical needs which either were not treated or received delayed treatment. The court concludes that Prasko's knee problems and hives were not sufficiently serious to establish a constitutional deprivation. Prasko alleges that jailers delayed treatment in both instances. However, he does not allege in either instance that the delay involved a life-threatening situation or resulted in substantial harm. Moreover, even if the record supported a finding that either delay caused substantial harm, it does not support a finding that Defendants were subjectively deliberately indifferent to Prasko's health. Prasko's knee swelling was treated promptly. He was given Benadryl the day after his hives developed, even if he was not taken to a doctor for two more days. The court concludes that no reasonable jury could find that the jailers exhibited deliberate indifference in either of these instances.
The court is not able to dismiss Prasko's abdominal pain, however, as easily. Apparently as an end result of this pain, Prasko underwent hernia surgery twice. The court is not prepared to rule that, as a matter of law, this was not sufficiently serious. Consequently, the court must reach the second part of the two-part test for deliberate indifference.
Prasko does not allege that he was required to undergo hernia surgery because Defendants did not treat his abdominal pain. Rather, he alleges that because Defendants forced him to remain in cold cells when they knew that he had bronchitis, he developed a hernia from excessive coughing.
Prasko asked for an extra blanket on January 1, 1998. He was issued one on the night of January 2. The pain in his abdomen developed on January 3. Denial of a blanket for one night does not support a finding of deliberate indifference. Subjectively, Prasko has not shown that the jailers "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Farmer, 511 U.S. 825, 837.
This finding is discussed further in Section III.B.2. Although Prasko alleges that he was denied an extra blanket at another time, it was not until the end of January. Prasko does not claim that his bronchitis endured until late January or that he was still coughing incessantly at that time.
Because Prasko has not presented evidence of constitutional violations, he has not met the first prong of the qualified immunity test, and Defendants are entitled to summary judgment regarding all of Prasko's medical claims.
b. Clayton Gish's Medical Claims
Plaintiff Gish asserts that Defendants overmedicated him, delayed treatment for his eye pain, and threatened to "lock him down" if his medical problems did not cease. While the overmedication certainly had the potential to result in a "serious medical need," it was corrected within one day. Although he did not return to normal immediately, the record does not show that he suffered any lasting medical problems.
Likewise, while Gish had to wait for more than two weeks to hear from a doctor regarding his eye pain, the doctor indicated that it was not a serious condition, and that the bright light would cause him no long-term harm.
Finally, there is no other evidence in the record to support a finding that Gish had a "serious medical need." Even assuming, without deciding, that Defendant Huginin's threats to "lock down" Gish suggest subjective deliberate indifference on his part, absent evidence of a serious medical need, the court concludes that no reasonable jury could find that the threats to "lock down" Gish were a constitutional violation.
Even if Plaintiff Gish had established that his injuries were objectively serious enough, the record does not support a finding that Defendants acted with subjective deliberate indifference in treating him. Defendants are entitled to summary judgment regarding all of Gish's medical claims.
2. Lack of Heat
Cold prison conditions alone are not enough to establish a constitutional violation. "[I]t is not just the severity of the cold, but the duration of the condition, which determines whether the conditions of confinement are unconstitutional." Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997).
Thus, while an allegation of inadequate heating may state an Eighth Amendment violation, . . . cold temperatures for a short period of time do not alone necessarily result in a constitutional violation. [The prisoner's] general comments with respect to the cold temperature, in and of themselves, are not sufficient to establish an objectively serious threat to his life or health.
Hawkes v. Wyoming Dep't of Corrections Honor Conservation Camp, No. 97-8006, 1997 WL 545594, at *2 (10th Cir. Sept. 4, 1997) (internal citation omitted). A prisoner's allegations in Dixon v. Godinez, a Seventh Circuit case, provide an example of complaints about cold cell temperatures that are specific enough to survive summary judgment proceedings. The prisoner alleged that for three years, during the winter, water would freeze on the inside walls of the jail. See Dixon, 114 F.3d at 642. He also stated that the standard prison clothing was inadequate to protect his extremities from the cold, which prevented him from writing or doing legal work. See id. Finally, he alleged without contradiction by the prison officials that the temperature averaged about forty degrees throughout the winters. See id. The Seventh Circuit held that summary judgment was inappropriate based on the specific complaints of the prisoner.
While specific complaints about continuous frigid conditions may meet the objective prong of the deliberate indifference test, the subjective prong requires proof of another factor, for example, failure to issue blankets or clothing to combat the cold conditions. "Some conditions of confinement may establish an Eighth Amendment violation `in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets."Wilson v. Seiter, 501 U.S. 294, 304 (1991). The Wilson court also recounted with approval the plaintiffs' acknowledgment "that if a prison boiler malfunctions accidentally during the cold winter, an inmate would have no basis for an Eighth Amendment claim, even if he suffers objectively significant harm." Id. at 300.
The Seventh Circuit has addressed the issue of cold prison cells several times. In Holleman v. Duckworth, prison officials took four days to fix a broken heating system. See Holleman v. Duckworth, No. 99-1004, 1999 WL 1082511, at *1 (7th Cir. Nov. 29, 1999). While the system was broken, officials did not issue additional blankets. See id. The Seventh Circuit held that the delay coupled with failure to issue blankets could support a finding of deliberate indifference, and reversed the district court's granting of summary judgment. See id. This case is instructive in the consideration of Prasko's claims.
a. Douglas Prasko's Claims of Inadequate Heat
Both of Prasko's complaints about his cold prison cell were remedied within one day. The first time, he was issued an additional blanket the night after he was refused one. Likewise, he was given an extra blanket and moved within one day after Defendant Koonce found him wrapped up in a ball shivering. Because "cold temperatures for a short period of time do not alone necessarily result in a constitutional violation," Hawkes, 1997 WL 545594, at *2, the court concludes that no reasonable jury could find that one night in a cold cell without an additional blanket is a serious deprivation.
b. Clayton Gish's Claims of Inadequate Heat
Gish makes a general claim that the jail continuously was cold. He alleges that he only received an extra blanket after several days of complaining and that he was not issued any "cold weather clothing." He also states that he could see his breath at times. While these specific facts are not quite as compelling as the facts in the Dixon case, the court concludes that a reasonable jury could find that Gish's allegations "establish an objectively serious threat to his life or health." Hawkes, 1997 WL 545594, at *2.
Even if Gish has alleged a serious threat to his life, however, he has not shown subjective deliberate indifference on the part of Defendants. To the contrary, the record shows that Defendants had maintenance workers in to work on the heating system nine times during the months of November 1997 through February 1998. The jailers made attempts to circulate heat, and issued extra blankets and t-shirts for warmth. Defendants are entitled to summary judgment regarding Gish's claims of inadequate heat.
c. Both Plaintiffs' Claims Against John Andrick
Plaintiffs state broadly that the Coffey County Jail was inadequately heated. Presumably because he is the maintenance supervisor, they name John Andrick as a defendant. However, Plaintiffs do not allege anything specific that Defendant Andrick has done wrong.
Defendant Andrick signed an affidavit which states that he inspected the boiler/cooler on a daily basis to ensure that it was functioning properly. On the several occasions during the winter of late 1997 and early 1998 when it was malfunctioning, Defendant Andrick either repaired the boiler, reset it, or promptly called Chaney, Inc., the maintenance company. He states that Chaney always quickly responded and repaired the problem.
Assuming, without deciding, that Plaintiffs have made an objectively serious claim, the court concludes that a reasonable jury could not find that Defendant Andrick's conduct was subjectively deliberately indifferent. The record does not show that he ignored any problems with the boiler. To the contrary, it shows that he responded to problems promptly. The boiler was new in 1995, and a contractor inspected it every three months for preventative maintenance. None of these facts indicate that Defendant Andrick showed deliberate indifference in his role as maintenance supervisor. Defendant Andrick is entitled to summary judgment as to the one claim against him.
3. Insect Infestation
"A state must provide within such living space reasonably adequate . . . sanitation." Ramos, 639 F.2d at 568. In Ramos, the court noted that there was "an extensive problem with rodent and insect infestation in the cellhouses." The Tenth Circuit held that prison conditions were unsanitary to a point of constitutional violation. However, the infestation was only one factor in the court's decision that the prison "fail[ed] to meet minimal health and safety needs of the prisoners." Id. at 569-72 (listing other inadequacies of the prison, including small cells, poor heating and ventilation systems, defective plumbing and leaking pipes, lack of cleaning programs, and lack of routine maintenance).
Plaintiff Gish complains that while he slept on a mattress on the floor, insects crawled into his bedding. Because this is Gish's only allegation, the court finds that, objectively, it is not "sufficiently serious." Even if it were, Gish has failed to show that subjectively, Defendants showed deliberate indifference. Although Gish states that he complained about the bugs, again the record includes no specific evidence that supports a finding of deliberate indifference. The record shows that the jail was sprayed twice for pests while he was incarcerated. It also was sprayed five months before he arrived. The court concludes that there was no constitutional violation, and absent a constitutional violation, Defendants are entitled to summary judgment.
This court has held that forcing a prisoner to sleep on a mattress that is on the floor is not cruel and unusual punishment. See Perkins v. Kansas Dep't of Corrections, No. 95-3520, 1997 WL 383072 (D.Kan. June 9, 1997), aff'd, 131 F.3d 152 (10th Cir. 1997).
4. Inmate Attack
Prisoners have a right to be protected from violence. See Farmer, 511 U.S. at 833. "[G]ratuitously allowing the beating or rape of one prisoner by another serves no `legitimate penological objectiv[e].'" Id. (quotingHudson v. Palmer, 468 U.S. 517, 548 (1984) (Stevens, J., concurring in part and dissenting in part)). However, every injury inflicted by another prisoner does not justify constitutional liability for prison officials.See Farmer, 511 U.S. at 834. An inmate seeking to hold an official liable for failing to prevent harm must show: (1) that there is a "substantial risk of serious harm" (Farmer, 511 U.S. at 834); and (2) that the official had a "`sufficiently culpable state of mind'" (Id. (quotingWilson, 501 U.S. at 297)). If an official responds reasonably to a risk of harm, he still may be free from liability. See Farmer, 511 U.S. at 844-45.
Gish was involved in an altercation with another prisoner. Gish claims that the jailers were afraid of the instigator, and that they usually did what the prisoner wanted when he became belligerent. The court concludes that a reasonable jury could find that a jail fight involving such a prisoner constitutes a substantial risk of serious harm.
However, even if a substantial risk of serious harm existed, Defendant Koonce did not have a "sufficiently culpable state of mind." Defendant Koonce witnessed the altercation, but did not physically intervene. According to Gish, she also did not say anything when he asked her to "make [the other prisoner] go away." Defendant Koonce's affidavit states that she acted pursuant to department policy which required that she not go into the room, but instead call for backup. Two other jailers arrived shortly, and broke up the fight. The court concludes that no reasonable jury could find that Defendant Koonce's response was unreasonable.
C. Municipal Liability and Supervisory Liability
None of Plaintiffs' claims thus far have survived summary judgment. The court has concluded that Defendants sued in their individual capacity are entitled to qualified immunity because Plaintiffs have not established that any constitutional violations occurred. Absent a constitutional violation, Defendants sued in their individual capacity are immune from liability. Likewise, before municipal liability or supervisory liability can be imposed, there must be an underlying constitutional violation. Because the court has concluded that no reasonable jury could find constitutional violations in this case, neither Defendant Board of County Commissioners nor Defendant Rodgers can be held liable on theories of municipal liability or supervisory liability.
D. State Tort Claims
Having dismissed all of Plaintiffs' claims over which the court has original jurisdiction, the court declines to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3) (1994); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' summary judgment motion is granted.
The case is closed. Copies of this order shall be mailed to counsel of record.
IT IS SO ORDERED.