                                 ___________

                                No. 95-2703
                                 ___________

Felix D. Smith,                      *
                                     *
     Plaintiff/Appellant,            *
                                     *   Appeal from the United States
     v.                              *   District Court for the Eastern
                                     *   District of Missouri.
Norman Copeland,                     *
                                     *
     Defendant/Appellee,             *
                                     *
Capt. Hines, Mike Hurst, Boffe       *
Scott, John Bick, Officer            *
Morgan, Officer Holshouser,          *
John Doe #1, John Doe #2,            *
John Doe #3,                         *
                                     *
     Defendants,                     *
                                     *
John Rich, Robert Scott,             *
                                     *
     Defendants/Appellees,           *
                                     *
Cape Girardeau County Jail,          *
                                     *
     Defendant,                      *
                                     *
Leonard Hines, Michael Hurst,        *
Mike Morgan, John Holshouser,        *
Officer Stoffregen, Officer     *
Hampton, J.P. Mulcahy, Officer,      *
Gene Huckstep, Larry Bock,           *
E. C. Younghouse, Cape               *
Girardeau County,                    *
                                     *
     Defendants/Appellees.           *


                                 ___________

                   Submitted:    February 15, 1996

                       Filed:    June 27, 1996
                                 ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________
BEAM, Circuit Judge.


      Felix D. Smith appeals a district court1 order denying relief in his
prisoner civil rights action which involves an overflowed toilet.                      We
affirm.


I.   BACKGROUND


      Smith was a pretrial detainee on two occasions in Cape Girardeau
County Jail.       He filed a 42 U.S.C. § 1983 action against the county and
certain individuals (hereinafter "correctional officers") asserting that
his civil rights were violated during his imprisonments.            He challenged the
conditions    of    his   confinement   and    also   alleged    excessive     force   by
correctional    officers.      He   alleged    that   he   was   placed   in   solitary
confinement without clothing, bedding, or blankets; that he was denied food
and water; that he was forced to endure raw sewage in his cell; that
correctional officers used excessive force on him; and that he was denied
medical attention.


      The correctional officers moved to dismiss and also moved for summary
judgment.    In support of their motions, they submitted affidavits stating
that their actions were both provoked and justified and that there are
penological reasons for denying a pretrial detainee bedding and clothing
in solitary confinement.        The correctional officers further stated that
Smith was only denied one meal and that the "raw sewage" complained of was
a toilet overflow that was not cleaned up for two days.


      The district court granted summary judgment to the correctional
officers on the claim involving denial of food, clothing and bedding.                  It
also dismissed the exposure-to-raw-sewage




      1
      The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.

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claim.       Finding disputed issues of fact, the district court denied the
correctional officers' motion for summary judgment on the excessive force
claims and those claims proceeded to trial by a jury.           At trial, Smith
objected to the make-up of the venire panel, but his objection was
overruled.        Also, the district court refused to let Smith argue the
"missing witness inference" to the jury.         The jury found in favor of the
correctional officers.


        On appeal Smith asserts that the district court:           (1) erred in
granting summary judgment to defendants on the conditions of confinement
claim and in dismissing his claim regarding exposure to raw sewage; (2)
abused its discretion in overruling his objection to the venire panel; and
(3) abused its discretion in prohibiting Smith from arguing the "missing
witness inference" in closing.


II.   DISCUSSION


        A.    Conditions of Confinement Claims


        We review a district court's grant of summary judgment de novo,
affirming only if the record shows there is no genuine issue of material
fact.        Brandenburg v. Allstate Ins. Co., 23 F.3d 1438, 1440 (8th Cir.
1994); Fed. R. Civ. P. 56(c).         With respect to Smith's assertion that the
district court improperly granted summary judgment on his claim for denial
of clothing, bedding, running water, food and toiletries while in solitary
confinement, we affirm for the reasons stated in the district court's
opinion.       See 8th Cir. R. 47B.




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           Smith also argues that the district court improperly dismissed his
claim relating to exposure to raw sewage.       The district court found that
Smith had not alleged either sufficient "personal involvement" in the
episode by individual defendants or any custom or policy by the county to
support liability.      Thus, the claim was subject to dismissal for failure
to state a claim.     We are not convinced that defendants' lack of "personal
involvement" requires judgment in their favor, but we nonetheless affirm
the district court's decision.2     We may affirm the judgment on any ground
supported by the record, even if not relied upon by the district court.
Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 608 (8th Cir.
1993).


       The standard applicable to conditions of confinement claims by
pretrial detainees was enunciated in Bell v. Wolfish, 441 U.S. 520 (1979).
The proper inquiry is whether those conditions amount to punishment of the
detainee, for, under the Due Process Clause, a detainee may not be punished
prior to an adjudication of guilt.           Id. at 535.   However, not every
disability imposed during pretrial detention amounts to "punishment" in the
constitutional sense.       Id. at 537.   Thus, if a particular condition or
restriction of pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount to "punishment."
Id. at 539.       The Government has legitimate interests that stem from its
need to manage the facility in which the individual is detained.       Id. at
540.   Furthermore, there is a de minimis level of imposition with which the
Constitution is not concerned.      Id. at 539 n.21.




       2
     The district court may be affirmed on this ground if lack of
"personal involvement" is interpreted as lack of notice to
supervisors so as to impose supervisory liability on them. See
Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) ("[a] single
incident, or a series of isolated incidents, usually provides an
insufficient basis upon which to assign supervisory liability").
The record supports such a reading with respect to supervisory
personnel.

                                       -4-
     In this case, Smith's allegations regarding "raw sewage" do not rise
to a level of constitutional significance.      Smith alleges that he was
subject to an overflowed toilet in his isolation cell from July 25 to July
29, 1992.   He alleges that he was "made to endure the stench of [his] own
feces and urine" for those four days.3    Appendix at 222.     Smith did not
allege that he was exposed to disease or suffered any other consequences
of the exposure.    In support of their motion for summary judgment, the
correctional officers stated by affidavit that Smith was offered an
opportunity to flush the toilet and to clean up the mess but he declined.
Smith did not dispute that point.   Applying the Bell v. Wolfish standard,
we find, under the circumstances of this case, that the "raw sewage"
allegation amounts to a de minimis imposition and thus does not implicate
constitutional concerns.


     Although this case is governed by Bell v. Wolfish, Smith cites Eighth
Amendment jurisprudence to support the contention that his constitutional
rights were violated.4     The Eighth Amendment prohibits punishments that
deprive inmates of the minimal civilized measure of life's necessities.
Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989).        Exposure to raw
sewage may in some cases




      3
       Smith asserts in his affidavit that he used the toilet on
July 25, 1992, shortly after being placed in isolation, at which
time it overflowed. He states that he was not provided protective
clothing and equipment to clean it up until the morning of July 29,
when he was released from isolation. The correctional officers, on
the other hand, state by affidavits and through supporting prison
logs, that Smith "had stuffed his paper gown in the toilet and
repeatedly flushed it causing a minor flood in the jail area" on
July 27, 1992 and that the water was turned off at that time.
Appendix at 119. We need not resolve this factual dispute since we
find that even Smith's scenario of a toilet overflow of four days'
duration does not amount to a constitutional violation.
      4
      Under Bell v. Wolfish, a pretrial detainee faces a lighter
burden to show a constitutional violation than under the Eighth
Amendment. See Bell, 441 U.S. at 535 n.16 (due process requires
that a pretrial detainee not be punished; the Eighth Amendment
requires that the punishment imposed not be cruel and unusual).

                                    -5-
amount to cruel and unusual punishment.       Fruit v. Norris, 905 F.2d 1147,
1151 (8th Cir. 1990).    However, any analysis of confinement conditions must
be based on the totality of the circumstances.        Howard, 887 F.2d at 137.
To prevail on an Eighth Amendment claim in this context, an inmate must
show that correctional officers were deliberately indifferent to the risk
of harm posed by the raw sewage.     See Burton v. Armontrout, 975 F.2d 543,
546 (8th Cir. 1992), cert. denied, 508 U.S. 972 (1993).        Thus, not every
overflowed toilet in a prison amounts to a constitutional violation.


        We have found a constitutional violation where inmates were forced
to work without protective gear "in a shower of human excrement."            Fruit,
905 F.2d at 1151.    We have also ordered prisons to provide protective gear
and to warn of the dangers of working in AIDS-contaminated waste.           Burton,
975 F.2d at 545.     We have similarly found a violation where an inmate was
forced to endure a cell covered with filth and human waste for two full
years.    Howard, 887 F.2d at 137.      Thus, the length of time a prisoner is
subjected to harsh conditions is a critical factor in our analysis.            See,
e.g.,    id. ("inmates are entitled to reasonably adequate sanitation,
personal hygiene, and laundry privileges, particularly over a lengthy
course of time").    Conditions such as a filthy cell that may be tolerable
for a few days are intolerably cruel for weeks or months.          Id.


        In the present case, Smith submitted an affidavit in opposition to
the correctional officers' motion for summary judgment.            Viewed in the
light    most favorable to Smith, those materials show that Smith was
subjected to an overflowed toilet in his cell for four days.              Under the
totality of circumstances presented here, we find that the correctional
officers were entitled to judgment as a matter of law on the raw sewage
claim,     whether   analyzed   under    Eighth   Amendment   or    Due     Process
jurisprudence.




                                        -6-
     B.     Venire Panel


     At oral argument, counsel for Smith conceded that his argument
regarding the make-up of the venire panel is foreclosed by United States
v. Rogers, 73 F.3d 774, 775 (8th Cir.), cert. denied, 64 U.S.L.W. 3807
(1996).    In Rogers, we reaffirmed our earlier holding in United States v.
Garcia, 991 F.2d 489, 491 (8th Cir. 1993), that a jury selection plan based
on registered voter lists withstands constitutional scrutiny unless there
is a showing of systematic exclusion of blacks in the jury selection
process.     Rogers, 73 F.3d at 775.        Only the court en banc can overrule
another panel's decision.        Campbell v. Purkett, 957 F.3d 535, 536 (8th Cir.
1992).    Accordingly, we are bound by Rogers and Garcia.         Because Smith has
failed to prove systematic exclusion of blacks in the jury selection
process, we affirm the district court's denial of Smith's objection to the
venire panel.


     C.     "Missing Witness Inference"


         In closing argument, Smith sought to argue that the jury could draw
an inference from the failure of John Rich, a correctional officer and
named defendant, to testify.       The district court sustained the correctional
officers' objection to that argument.              The district court has broad
discretion in ruling on the propriety of closing argument.            United States
v. Collins, 996 F.2d 950 (8th Cir.), cert. denied, 114 S. Ct. 412 (1993).
We will not disturb the court's ruling absent an abuse of that discretion.
Slather v. Sather Trucking Corp., 78 F.3d 415, 420 (8th Cir. 1996).                To
constitute reversible error, we must find that the district court's action
resulted in injury or prejudice.          Id.   Here, Smith had an opportunity to
depose    the   witness    and   could   have   offered   the   witness'   deposition
testimony.      See Campbell v. Coleman Co., 786 F.2d 892, 897-98 (8th Cir.
1986) (under Missouri law, a negative inference may not be raised if the
witness is equally available to both parties).            In addition, the witness
was a party defendant and




                                          -7-
Smith was allowed to argue to the jury that he had not "show[n] up to
defend himself."      Transcript Vol. 2 at 92.   Under the circumstances, we
find no abuse of discretion.


III.   CONCLUSION


       For the reasons set forth above, the judgment of the district court
is affirmed.


       A true copy.


            Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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