Danny J. Scott v. Robert Carpenter , 24 F. App'x 645 ( 2001 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-1322
    ___________
    Danny J. Scott,                      *
    *
    Plaintiff-Appellant,      *
    * Appeal from the United States
    v.                             * District Court for the
    * Southern District of Iowa.
    Robert Carpenter; David Wagner, Lt., *
    Deputy; Mark Petence; Luke Hruby;    *      [UNPUBLISHED]
    Roy Smith, Waldsmith, Sergeant;      *
    Brian Adolph,                        *
    *
    Defendants-Appellees.     *
    ___________
    Submitted: November 16, 2001
    Filed: December 11, 2001
    ___________
    Before LOKEN, LAY, and RILEY, Circuit Judges.
    ___________
    PER CURIAM.
    Danny J. Scott, a pretrial detainee, brought a § 1983 claim against the county
    sheriff and the jail administrator alleging deliberate indifference to Scott’s serious
    medical needs and conditions of his confinement. He brings the claim under the
    Eighth and Fourteenth Amendments. Magistrate Judge Celeste F. Bremer made
    thorough fact findings in an excellent sixteen-page opinion, denied his claim, and
    entered judgment for the defendants. We affirm.
    Scott was incarcerated at the county jail in Johnson County, Iowa, as a pretrial
    detainee from September 1997 until March 1998. He weighed between 350 and 385
    pounds. His left leg is amputated below the knee. He suffers from diabetes and a
    chronic ulcer on his right leg.
    Scott alleges he only showered fifteen times during his six month incarceration,
    while published jail policies mandate that prisoners shower at least once every three
    days. He contends his inability to bathe constituted deliberate indifference to his
    hygiene needs on the part of defendants; he also asserts a related claim, deliberate
    indifference to his medical needs, arising from a leg infection he suffered near the end
    of his incarceration.
    It is undisputed that the jail in Johnson County lacks handicapped accessible
    showering facilities. It also is undisputed that, because of Scott’s size and disability,
    he was unable to use showering facilities in his cellblock. When Scott did shower,
    officials took him to the larger shower in the jail’s booking room. This facility also
    lacked handrails, and officials provided Scott with a chair on which to sit or lean.
    The magistrate judge found that jail officials also provided other means for
    Scott to keep himself clean. Each cell was equipped with soap, running water, wash
    cloths, and towels. Officials provided Scott with a wash basin he could use to bathe
    himself in his cell and a small plastic wastebasket, purchased new, to allow Scott to
    soak his stump. However, jail records reflect that Scott rarely, if ever, took advantage
    of these alternatives. For example, it appears he requested the opportunity to bathe
    himself in his cell only once.
    On September 5, 1997, the day after Scott was incarcerated, he was taken to the
    University of Iowa Hospitals and Clinics where he was diagnosed with superficial
    cellulitis, a bacterial infection of the skin and subcutaneous tissue marked by
    discomfort and redness, swelling, and warmth of the infected area. Scott was released
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    to custody of the jail and prescribed antibiotics. Apparently these were effective.
    Subsequent doctors over the next several months found Scott’s legs free from
    infection despite his frequent complaints.
    On January 24, 1998, Scott again complained of infection. Officials took him
    to the hospital where he was diagnosed with cellulitis in his right leg. He was
    hospitalized for five days and received antibiotics.
    On February 16, 1998, Scott again complained of infection in his legs. He was
    not taken to the hospital immediately because he had a scheduled appointment for
    February 19. It is unclear from the record whether this decision was made by Scott
    or jail officials. At that appointment, Scott was diagnosed with an abscess on his left
    knee. That infection was incised and drained the next day. Scott remained
    hospitalized for approximately two weeks and then was released to home arrest. In
    all, officials took Scott to the hospital on twelve separate occasions during his
    incarceration and he spent nineteen nights in a hospital bed.
    Discussion
    A prison official can only be held to have violated the Eighth Amendment
    when two requirements are met: (1) the deprivation alleged must be, objectively,
    sufficiently serious; and (2) the official must be deliberately indifferent to the
    prisoner’s health. Farmer v. Brennan, 
    511 U.S. 825
    , 834 (1994); Reece v. Groose, 
    60 F.3d 487
    , 491 (8th Cir. 1995). As to both of Scott’s claims, there is no dispute that
    the first requirement is met. Defendants concede the risk of infection was objectively
    serious. They also agree that basic personal hygiene falls within “the minimal
    civilized measure of life’s necessities” to which a prisoner is entitled. See Farmer,
    
    511 U.S. at
    834 (citing Rhodes v. Chapman, 
    452 U.S. 337
    , 347 (1981)). Rather,
    defendants limit argument on both issues to their subjective state of mind.
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    A. Deliberate Indifference to Hygiene Needs
    Scott asserts a number of facts in support of his position. He notes he received
    only fifteen showers over six months, stating he once went twenty-eight days
    without.1 He contends he initially requested showers, but these requests were refused
    by jail officials. This, he asserts, eventually caused him to give up making further
    requests. Even when he was allowed to shower, he claims, he had to drag himself
    across the floor before he could reach the stall.
    He also disputes defendants’ assertions that alternative means were available
    to clean himself. He claims he could not fill the provided basin with water and the
    wastebasket provided for him to soak his leg was unsanitary. In any event, he
    contends, these alternatives do not trump the jail’s policy that prisoners receive
    showers at least every three days. Similarly, he contends that regardless of these
    alternative means, society’s “evolving standards of decency” mandate regular
    showers, not sponge baths.
    Defendants assert Scott bore more responsibility for his own hygiene than he
    admits. They state that jail policies place ultimate responsibility for cleanliness on
    the individual detainee. Each cell has soap, water, wash cloths, and towels. They
    state they twice told Scott that a shower or warm water for his basin would be
    provided on his request. Contrary to Scott’s allegations, they state that Scott rarely
    requested the opportunity to bathe and there is no evidence he was ever refused or
    interfered with in such a request. See Opinion and Judgment (Dec. 6, 2000) at 10
    (“Nothing in the record indicates that he asked for showers on a regular basis. . . . No
    evidence suggests that either Defendant ever denied or interfered with Scott’s request
    for hygiene supplies or a shower.”). They assert that accommodating Scott’s requests
    and providing alternative means to wash in light of Scott’s special circumstances falls
    1
    Magistrate Judge Bremer states that the longest period was eighteen days.
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    far short of the “wantonness” required to prove a constitutional violation. Moreover,
    to the extent our “evolving standards of decency” allow officials to require prisoners
    to take some responsibility for their own hygiene, officials do not violate those
    standards by giving prisoners access to bathing facilities and responding to their
    requests rather than taking affirmative steps.
    We hold the magistrate judge did not err in finding defendants were not
    deliberately indifferent to Scott’s hygiene needs. Indeed, fifteen showers in six
    months plus the unavailability of handicapped accessible facilities raises some red
    flags, and we agree with Magistrate Judge Bremer’s assessment that defendants could
    and probably should have done more to accommodate Scott’s special needs.
    However, we agree with defendants that prisoners can be expected to bear some
    responsibility for their own hygiene. An Eighth Amendment violation requires a
    jailer to deprive a prisoner of a “single, identifiable human need.” Wilson v. Seiter,
    
    501 U.S. 294
    , 304 (1991). The magistrate judge found that defendants offered Scott
    showers or warm water for sponge baths at his request and never interfered with his
    requests, but Scott rarely asked. Under those circumstances, it is difficult to see how
    he was deprived by any other than his own choice. Under the totality of the
    circumstances, see Howard v. Adkison, 
    887 F.2d 134
    , 137 (8th Cir. 1989), we hold
    that Magistrate Judge Bremer was not clearly erroneous in finding defendants did not
    wantonly deprive Scott of his basic needs. See Farmer, 
    511 U.S. at 834
    .
    B. Deliberate Indifference to Medical Needs
    Scott asserts the poor hygiene imposed upon him by defendants caused the
    infections which required hospitalization and, in one case, surgery. He also asserts
    defendants were aware of the “substantial risk of serious harm,” Farmer, 
    511 U.S. at 842
    , these infections posed. According to Scott, defendants knew he had been
    hospitalized for leg infections. They also knew he had not bathed regularly and that
    poor hygiene promotes infection. More specifically, defendants knew Scott was
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    running a fever prior to February 16, 1998, one possible cause of which was his body
    fighting infection. Nonetheless, defendants refused Scott’s requests for medical
    treatment for three days because he already had a regularly scheduled appointment
    with his doctor.
    Defendants dispute Scott’s assertion that they were aware of any serious risk
    of substantial harm to Scott’s health. They assert the proper standard is whether they
    unnecessarily and wantonly inflicted pain, see Wilson, 
    501 U.S. at 297
    , and they
    argue that they did not. They assert there is no evidence in jail or hospital records
    that jail officials ever neglected to follow physician or hospital instructions pertaining
    to Scott. Likewise, the court found that rather than ignoring Scott’s frequent
    complaints, they took him to the hospital twelve times during his incarceration.
    Moreover, Scott had “cried wolf” several times, telling officials he had an infection
    when doctors could find none. The court held in response to this observation, “[i]f
    doctors could not diagnose a serious medical need requiring treatment, then the Court
    declines to hold that a reasonable layperson such as a jail employee should have done
    so.” Opinion and Judgment (Dec. 6, 2000) at 14 (citing Aswegan v. Henry, 
    49 F.3d 461
    , 464 (8th Cir. 1995)).
    We hold the magistrate judge did not err in finding that defendants were not
    aware of a serious risk of harm and did not deliberately ignore risks to Scott’s health.
    Officials regularly took Scott to the hospital in response to his complaints. The final
    instance followed a period of months where doctors had repeatedly found no infection
    in response to Scott’s complaints. Under the circumstances, waiting three days for
    Scott’s appointment with his physician did not amount to deliberate indifference.
    The judgment of the district court is AFFIRMED.
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    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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