                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 3, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 JOHN A. SKELTON,

          Plaintiff - Appellant,
                                                         No. 09-3348
 v.                                            (D.C. No. 5:06-CV-03045-MLB)
                                                          (D. Kan.)
 LOUIS BRUCE, Warden, Hutchinson
 Correctional Facility; MARJORIE
 VANHOOSE, Unit Manager,
 Hutchinson Correctional Facility;
 DEBRA MCCONAGHY, Unit Team
 Member, Hutchinson Correctional
 Facility; MISTY KROEKER, Unit
 Team Member, Hutchinson
 Correctional Facility; THOMAS
 MACK, Unit Team Member,
 Hutchinson Correctional Facility;
 RUDY RODRIGUEZ, Unit Team
 Member, Hutchinson Correctional
 Facility; ANTHONY MCELROY, Unit
 Team Member, Hutchinson
 Correctional Facility; JASON
 HARDING, Sargent, Security Force of
 Segregation Units, Hutchinson
 Correctional Facility,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.


      In this conditions of confinement case, Plaintiff-Appellant John Skelton

appeals from an order of the district court granting summary judgment in favor of

Defendants-Appellees corrections officials. This court has jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.



                                   Background

      Mr. Skelton was at all times relevant to this case an inmate at Hutchinson

Correctional Facility (“HCF”) in Hutchinson, Kansas. 1 Supp. R., Amended

Pretrial Order, Doc. 121 ¶ 4(a)(1). All Defendants were employed by HCF.

Specifically, Defendant Louis Bruce was the warden of HCF. Id. ¶ 4(a)(2).

Defendant Misti Kroeker was a Unit Team Counselor II assigned to A Cellhouse.

Ex. E, Kroeker Affidavit, Doc. 127-5 at 1. Defendant Marge VanHoose was the

Unit Team Manager assigned to A Cellhouse. Ex. C, VanHoose Affidavit, Doc.

127-3 at 1. Defendant Anthony McElroy was a Unit Team Counselor in the

Intensive Management Unit in A-3 Cellhouse. Ex. HH, McConaghy Deposition,

Doc. 127-32 at 33.

      Mr. Skelton was housed in the segregation unit at HCF in A Cellhouse from

November 24, 2003 until March 24, 2004 and from July 24, 2005 until November

4, 2005. 1 Supp. R., Amended Pretrial Order, Doc 121 ¶ 4(a)(5). He is currently

                                       -2-
housed at a different facility. Ex. A, Skelton Deposition, Doc. 127-2 at 146. Mr.

Skelton filed several grievances concerning the conditions of confinement while

he was in the segregation unit. On February 25, 2004, he filed a grievance

complaining about the cold temperature in his cell. Ex. J., Grievance

BA00011628, Doc. 127-9 at 2-4. On March 16, 2004, he filed a grievance

complaining about the cold air and water temperatures in the showers and the use

of fan vents by officers while inmates showered. Ex. K, Grievance BA 00011668,

Doc. 127-10 at 3-5. On March 21, 2004, he filed a grievance complaining that the

outdoor segregation exercise yard was not covered and that inmates were not

given gloves or rain gear. Ex. L, Doc. 127-11, Grievance BA00011691 at 3-7.

Defendant Kroeker denied all three grievances, and Defendant Bruce concurred

with her decisions. Ex. J., Grievance BA00011628, Doc. 127-9 at 1, 5; Ex. K,

Grievance BA 00011668, Doc. 127-10 at 1, 6; Ex. L, Doc. 127-11, Grievance

BA00011691 at 1, 8-9.

      On February 7, 2006, Mr. Skelton filed a pro se civil rights action in

Kansas federal district court against several HCF employees alleging violations of

his Eighth Amendment rights. 1 R. Doc. 1. Counsel was appointed on January

24, 2008, 2 R. Doc. 93, and Defendants moved for summary judgment on

February 20, 2009. 2 R. Doc. 126. The district court granted Defendants’ motion

for summary judgment on November 12, 2009. 3 R. Doc. 140.

      On appeal, Mr. Skelton maintains that the cold temperature in his cell, the

                                        -3-
cold air and water and use of fans in the showers, and lack of appropriate clothing

and shelter in the outdoor exercise area violated his Eighth Amendment rights. 1

Specifically, Mr. Skelton alleges that Defendants Bruce and VanHoose violated

his Eighth Amendment rights “by creating, allowing to be created, implementing,

and/or allowing to be implemented rules, regulations, policies, practices,

procedures, patterns, decisions, instructions, orders, and customs regarding

exercise for segregation inmates at HCF (Count 1); regarding the temperature in

the intensive management unit at HCF (Count 5); [and] regarding the temperature

in the segregation unit at HCF (Count 6).” 1 Supp. R., Amended Pretrial Order,

Doc. 121 ¶ 6(a)(2)(a) & (b). In addition, he alleges that Defendant Kroeker

violated his Eighth Amendment rights “by being deliberately indifferent to

plaintiff's health or safety regarding air and water temperatures in the showers in

the cells of the intensive management unit at HCF (Count 5); regarding air

temperatures of the intensive management unit at HCF (Count 6); and regarding

exercise opportunities for inmates in the segregation unit at HCF (Count 8).” Id.

¶ 6(a)(2)(c). 2

       1
        Mr. Skelton originally included additional claims, but the only claims on
appeal concern the cold cell temperature, the shower conditions, and the lack of
clothing and covering for the segregation yard.
       2
       Although Defendant McElroy has not been formally dropped as a
defendant, the claims against him pertained to Mr. Skelton’s complaints about
sock supply, which have been dropped. See 1 Supp. R., Amended Pretrial Order,
Doc. 121 ¶ 6(a)(2)(d) (describing allegations against Defendant McElroy); Aplt.
Reply Br. at 23-24 (explaining decision to drop claims regarding socks).

                                        -4-
      Mr. Skelton seeks nominal damages, attorney’s fees, costs, and injunctive

relief requiring HCF to maintain air and water temperature at a certain range in

the segregation units at HCF; provide adequate and warm clothing to inmates

including hats, gloves, thermal underwear, and hooded sweatshirts to those using

the outdoor exercise area; and construct a partial roof over the outdoor exercise

area. See Aplt. Br. at 16.



                                     Discussion

      This court reviews orders granting summary judgment de novo. See

Howard v. Waide, 534 F.3d 1227, 1235 (10th Cir. 2008). Summary judgment is

appropriate where the “pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2). In reviewing an order of summary judgment, we “examine the record

and all reasonable inferences that might be drawn from it in the light most

favorable to the non-moving party.” T-Mobile Cent., LLC v. Unified Gov’t of

Wyandotte Cnty., 546 F.3d 1299, 1306 (10th Cir. 2008) (quotation marks and

citations omitted). “Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(quotation marks and citation omitted).

                                          -5-
      Mr. Skelton brings his claims under section 1983, alleging Eighth

Amendment violations based on the conditions of his confinement. “To prevail

on a claim for damages for a constitutional violation pursuant to 42 U.S.C.

§ 1983, a plaintiff must establish the defendant acted under color of state law and

caused or contributed to the alleged violation.” Jenkins v. Wood, 81 F.3d 988,

994 (10th Cir. 1996) (citation omitted). In an Eighth Amendment conditions of

confinement claim, a plaintiff must show an objective and subjective component.

“First, the deprivation alleged must be, objectively, sufficiently serious . . . .”

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation marks and citations

omitted). Second, the prison official’s “state of mind [must be] one of deliberate

indifference to inmate health or safety.” Id. (quotation marks and citations

omitted).

      Regarding the objective component, the Eighth Amendment does not

require comfortable prisons at the expense of management prerogative, and

conditions may be restrictive or even harsh. See Barney v. Pulsipher, 143 F.3d

1299, 1311 (10th Cir. 1998) (citing Rhodes v. Chapman, 452 U.S. 337, 347, 349

(1981)). Still, prison officials must provide “‘the minimal civilized measure of

life’s necessities’” based upon contemporary standards. Id. at 1310 (quoting

Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Against that backdrop, the Eighth

Amendment requires that a state “provide [an inmate] reasonably adequate

ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold

                                          -6-
water, light, heat, plumbing).” Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.

1980), cert. denied, 450 U.S. 1041 (1981) (citations omitted). To prove an

unconstitutional deprivation, “a prisoner must show that conditions were more

than uncomfortable, and indeed rose to the level of ‘conditions posing a

substantial risk of serious harm’ to inmate health or safety.” DeSpain v. Uphoff,

264 F.3d 965, 973 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834). Whether

there is a substantial risk of serious harm depends on “the particular facts of each

situation; the circumstances, nature, and duration of the challenged conditions

must be carefully considered.” Id. at 974 (quotation marks and citations omitted).

“[T]he length of exposure to the conditions is often of prime importance.” Id.

      The subjective component of an Eighth Amendment conditions of

confinement claim is not satisfied “unless the official knows of and disregards an

excessive risk to inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “Prison

officials who actually knew of a substantial risk to inmate health or safety may be

found free from liability if they responded reasonably to the risk, even if the harm

ultimately was not averted.” Id. at 844. With this framework in mind, we address

Mr. Skelton’s three claims.

1.    Cell Temperature

      In his first grievance, Mr. Skelton complained that from November 24,

                                        -7-
2003 to December 15, 2003 and January 28, 2004 to February 25, 2004, he

subjectively believed that the temperature in his cell ranged from “40 degrees to

65 degrees,” and at night, it “dropped to an almost unbearable low.” Ex. J.,

Grievance BA00011628, Doc. 127-9 at 3. In his December 22, 2008 deposition,

he stated that based on “subjective experience,” the segregation cells was kept 10

to 20 degrees cooler than the population cells and that an officer on duty agreed

with him that the temperature was cold but could not be changed because the

temperature was preset. Ex. A, Skelton Deposition, Doc. 127 at 41:3-11, 42:2-18.

Later in his deposition, he stated that he thought the temperature was 20 or 30

degrees. Id. at 46:5-6. He also stated that “I’m not saying that it was real cold

every day, but there would be large segments of time where it would be cold.” Id.

at 47:17-23. He assumed the cold conditions were based on a heater malfunction

or a broken window. Id.

      On March 1, 2004, Defendant Kroeker denied the grievance after the

maintenance staff told her that the preset temperature was 68 degrees and that at

10 A.M. on February 25, the temperature was 70 degrees on the south side of the

cellhouse and 67.5 degrees on the north side. Ex. J., Grievance BA00011628,

Doc. 127-9 at 5. Defendant Bruce concurred with the decision. Id. at 1. In his

deposition, Mr. Skelton testified that he had requested temperature checks for

various times during the day but that Defendant Kroeker “took one temperature

check during the day at a time when I know that they have the heaters kicked on.”

                                         -8-
Ex. A, Skelton Deposition, Doc 127 at 44:9-18. In an affidavit, Kroeker stated

that the maintenance department kept a log of temperatures in the cellhouses, but

had lost that information. Ex. E, Doc. 127-5, Kroeker Affidavit at 1.

         Mr. Skelton alleges that Defendants Bruce and VanHoose violated his

Eighth Amendment rights by creating policies that kept the cell temperatures too

low and that Defendant Kroeker violated his Eighth Amendment rights by being

deliberately indifferent to his health and safety. 1 R., Amended Pretrial Order,

Doc. 121 ¶ 6(a)(2)(a)-(c). The district court held that Mr. Skelton provided no

evidence to support his claim regarding the cold cell temperature. 3 R., Doc. 140

at 12.

         An allegation of inadequate heating may amount to a constitutional

violation, see Ramos, 639 F.2d at 568, but we must consider the severity of the

temperature, its duration, and whether the inmate has adequate alternatives to

protect himself from the cold, along with other prison conditions. See Dixon v.

Godinez, 114 F.3d 640, 644 (7th Cir. 1997); see also Wilson, 501 U.S. at 304

(noting that “a low cell temperature at night combined with a failure to issue

blankets” may establish an Eighth Amendment violation); Mitchell v. Maynard,

80 F.3d 1433, 1443 (10th Cir. 1996) (finding actionable Eighth Amendment claim

where inmate alleged lack of heat, lack of bedding and clothing, deprivation of

exercise for a long period of time, lack of hot water, denial of toilet paper,

removal of prescription eyeglasses, and lack of adequate ventilation); Dixon, 114

                                         -9-
F.3d at 643 (“It is true that most successful Eighth Amendment claims often

involve allegations of cold in conjunction with other serious problems.”). Here,

we cannot agree with the district court that “no evidence” supports the cold cell

claim. As discussed above, Mr. Skelton alleged cold cell temperatures within a

range that certainly could be problematic for an extended period of time. At the

same time, and as the district court noted, Mr. Skelton has not claimed that he

was deprived of a blanket or clothing in his cell. 3 3 R., Doc. 140 at 13. Indeed,

he seemed to take the position in his grievance that the cell should be warm

enough as to not require a blanket. See Ex. J., Grievance BA00011628, Doc. 127-

9 at 3 (“[I]t is ridiculous that inmates cannot move about their cell without

wearing a coat or blanket.”). We agree with the Seventh Circuit that the fact that

inmates need to bundle up in a coat and blanket does not necessarily mean that

the prison conditions are unconstitutional. See Dixon, 114 F.3d at 644 (“[J]ust

because low temperature forces a prisoner to bundle up indoors during the winter

does not mean that prison conditions violate the Eighth Amendment.”).

      Still, the Dixon court held that there was a genuine issue of material fact

where the inmate complained that ice persistently formed on the walls of his cell

for several winters and the extreme cold made it impossible to do simple tasks,

      3
        In his deposition, Mr. Skelton claimed that “[t]echnically, you are
supposed to have two [blankets] during the wintertime, but at that time I was only
able to get one.” Ex. A, Doc. 127-1 at 46:24-47:1. He claimed that he requested
a second blanket, but he never made a formal request for one and never filed a
grievance about this. See id. at 47:9-12.

                                        - 10 -
such as writing a letter or doing legal work. See 114 F.3d at 644; see also Lewis

v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987) (finding genuine issue of material

fact where prison inmate claimed that cell temperatures fell between 52 and 54

degrees even though prison officials maintained the temperature was set to a

range of 68 to 72 degrees).

      We need not decide whether Mr. Skelton has produced sufficient evidence

to preclude summary judgment on the objective prong of the Eighth Amendment,

because even assuming he has, we hold that he has not produced sufficient

evidence for a rational jury to hold that the Defendants were deliberately

indifferent to his health or safety. Under Farmer, prison officials are free from

liability if they respond reasonably to the risk to inmates. See 511 U.S. at 844.

Defendant Kroeker responded to Mr. Skelton’s grievance by checking the

temperature with maintenance and confirming that the heater had been set to 68

degrees. While we recognize that Mr. Skelton complains of nighttime

temperature drops and that a single temperature check was performed during the

day, we will not hold prison officials liable for what would at most amount to

mere negligence. See id. at 835. Mr. Skelton’s allegation that the temperature

check was a sham is pure speculation and does not raise a genuine issue of

material fact that Defendant Kroeker acted with deliberate indifference.

      Mr. Skelton contends that the cold conditions in his cell were caused by

policies set by Defendants Bruce and VanHoose. The HCF regulations, however,

                                        - 11 -
state that the cell temperature is to be set at 68 degrees during winter. Ex. FF,

Doc 127-30 at 2. Mr. Skelton has failed to raise a genuine issue of material fact

as to whether Defendants Bruce and VanHoose acted with deliberate indifference.

2.    Shower Conditions

      In his second grievance, Mr. Skelton complained about the cold air and

water temperatures in the showers and the use of fan vents as punishment. Ex. K,

Doc. 127-10, Grievance BA 00011668 at 2-5. Specifically, Mr. Skelton argued

that the air temperature was 68 degrees, the water temperature was “barely above

body temperature,” and the fan created a draft in the showers that “caused severe

distress from the cold and was enough to cause a hypothermic reaction in [his]

body temperature.” Id. at 4. Defendant Kroeker testified that officers frequently

used fans to clear steam in the showers for security purposes and to control the

growth of mold in the showers. Ex. E, Doc. 127-5, Kroeker Affidavit at 2. Mr.

Skelton alleged that on March 16, there was no steam and that Officer Curtis

(who is not a defendant here) maliciously used the fan as “an inmate management

tool, knowing that it causes pain and detriment.” Ex. K, Doc. 127-10, Grievance

BA 00011668 at 5. In an affidavit, Mr. Skelton also stated that “[t]he use of fans

in the shower area was never a necessary security precaution in order to remove

steam and provide a line of sight for guards overseeing the area. In view of the

water temperature, steam never became an issue.” Ex. NN, Skelton Affidavit,

Doc. 131-1 at 3. Mr. Skelton admitted that the incident with Officer Curtis was

                                        - 12 -
“the only time that I felt that [the fan] was being used maliciously” and that “[t]he

other times, the other officers I’m sure were under some sort of directive, as later

learned by the unit team that the fans were to be used to prevent mold . . . .” Ex.

A, Skelton Deposition, Doc. 127-1 at 36:12-16. In his grievance, he requested

that the officers be trained so that they would not use the fans as punishment. Ex.

K, Doc. 127-10, Grievance BA 00011668 at 5.

      In his deposition, officer John Montoya stated that “[i]t seemed like [the

inmates] always complained about the water. That was an ongoing problem.” 3

R., Ex. RR, Doc. 131-5 at 24:13-14. In addition, he stated that corrective actions

to increase the heat were not always taken because of “the money crunch.” Id. at

26:1-11.

      Noting that the water temperature had been raised on March 11 and that the

fans were used to address steam and humidity issues, Defendant Kroeker denied

the grievance and found no reason to train the officers. Ex. K, Doc. 127-10,

Grievance BA 00011668 at 6. Defendant Bruce concurred. Id. at 1. HCF policy

requires that showers be maintained at 110 degrees. Ex. FF, Doc. 127-30 at 2.

Defendant Kroeker stated, however, that “the water temperatures do vary

somewhat when the devices that mix hot and cold water do not function as

designed.” Ex. E, Doc 127-5, Kroeker Affidavit at 2. She also stated that

temperatures in the shower area were never taken. 3 R., Ex. VV, Doc. 131-8 at

50:3-19.

                                        - 13 -
      Mr. Skelton contends that Defendants Bruce and VanHoose violated his

Eighth Amendment rights by creating policies regarding the air and water

temperatures in the shower and that Defendant Kroeker violated his Eighth

Amendment rights by being deliberately indifferent to his health and safety in the

shower. 1 R., Amended Pretrial Order, Doc. 121 ¶ 6(a)(2)(a)-(c). The district

court held that the facts failed to show that the conditions were sufficiently severe

to constitute an Eighth Amendment violation.

      Prisons are required to provide inmates with hot and cold water, see Ramos,

639 F.2d at 568, but we held, in an unpublished order and judgment, that there

was no Eighth Amendment violation where inmates were forced to use showers

that “produced water sometimes too hot and other times too cold.” See Rhodes v.

Laramie Cnty. Bd. of Cnty. Com’rs, No. 94-8046, 1995 WL 539739, at *1 (Sept.

12, 1995) (unpublished). 4 Relying upon that order and judgment, the district

court implied that there could be no constitutional violation where the showers

were equipped to produce hot water but sometimes malfunctioned. 3 R., Doc. 140

at 13-14.

      Even assuming without deciding that the shower temperatures could meet

the objective component of the Eighth Amendment standard, Mr. Skelton has

failed to produce evidence that the Defendants were deliberately indifferent.


      4
       Unpublished decisions are not binding precedent, but may be cited for
persuasive value. See 10th Cir. R. 32.1(A).

                                        - 14 -
Defendant Kroeker responded reasonably to Mr. Skelton’s grievance by stating

that the water temperatures had been raised. In addition, Mr. Skelton fails to

show that Defendants Bruce and VanHoose set an unconstitutional policy because

the HCF regulations state that shower water should be maintained at 110 degrees.

      In addition, we agree with the district court that one occasion of alleged

malicious fan use does not meet the objective prong of the Eighth Amendment

standard. Mr. Skelton stated that March 16 was the only time that an officer

maliciously used a fan on him. One occasion of malicious fan use does not create

a condition posing a “substantial risk of serious harm to inmate health or safety.”

DeSpain, 264 F.3d at 973 (quotation marks and citation omitted).

3.    Exercise Yard Conditions

      In Mr. Skelton’s third grievance, he complained about the lack of gloves,

rain gear, and outdoor covering in the segregation exercise area during the winter

months. Ex. L, Doc. 127-11, Grievance BA00011691 at 3-7. Inmates in the

segregation unit are given the option to exercise in an uncovered outdoor yard for

one hour five days a week. Barring inclement weather, once the exercise period

begins, inmates are not permitted to re-enter the cellhouse until the end of the

hour-long period “in order to maintain security and adequate staff supervision.”

Ex. CC, Doc. 127-27, Kroeker Affidavit at 2. If inclement weather starts once the

exercise period has begun, inmates are permitted to re-enter the facility as a group

at the discretion of the officers on duty. Id. Officer Rudy Rodriguez testified

                                        - 15 -
that inmates in segregation are under “special management,” which requires a

“more intense moving of the inmate population,” and that once inmates decide to

go outside, they are not permitted back inside unless there is lightning. 3 R., Ex.

JJ, Doc. 131-7, Rodriguez Deposition. Inmates are told the weather conditions

prior to going outside and have the option to remain in their cells, where they can

exercise according to a program provided by an activity therapist at HCF. Id. In

his grievance, Mr. Skelton complained that he was unable to do the indoor

exercise program because his cell was too small. Ex. L, Doc. 127-11, Grievance

BA00011691 at 6.

       All inmates are given a denim jacket with wool lining before going

outside; some are given stocking caps. Ex. A, Doc 127 at 20:12-20. Officer John

Montoya testified that inmates were never given hooded sweatshirts, sweatpants,

gloves, or rain gear before entering the exercise yard. 3 R., Doc. 131-5, Montoya

Deposition at 17:17-18:5. The yard is not covered.

      Mr. Skelton testified that “we didn’t have enough clothing to stay warm.

And the fact of the cold was exacerbated when it snowed and rained.” Ex. A,

Skelton Deposition, Doc. 127-1 at 24:2-4. He described four occasions where the

clothing provided was not sufficient to protect him from snow or rain. On one

occasion, freezing rain started about 30 minutes into the hour-long exercise

period, and the officers on duty refused to allow Mr. Skelton back inside despite

Mr. Skelton’s request. Id at 25:21-25:10. Mr. Skelton wrote in his grievance that

                                        - 16 -
he was “soaked and frozen when he came back in” and that “his feet, hands, and

legs burned and itched fiercely when [he] was able to take a shower.” Ex. L,

Doc. 127-11, Grievance BA00011691 at 5. On two occasions, it snowed while

Mr. Skelton was outside. One time, Mr. Skelton chose to go outside after the

officers had told him it was snowing. Ex. A, Skelton Deposition, Doc. 127-1 at

27:1-14. The other time, the snow began after Mr. Skelton decided to go outside,

but he did not ask to come back in because he assumed the officers would not

allow it. Id. at 27:17-28:2. On one last occasion, it began to rain and sleet forty

minutes into the exercise hour, and the officers refused to allow Mr. Skelton

inside. Id. at 28:18-29:2. Mr. Skelton did not seek medical care after any of

these incidents, Id. at 32:16-33:2, but he stated in response to an interrogatory

that he:

      suffered extreme coldness and chills and resultant health and rest and
      sleep difficulties because of these actions and failures. Furthermore,
      due to his diabetic condition, Mr. Skelton needed exercise to avoid
      excessive levels of blood sugar. The exercise was an important
      component of his therapy. He had worries about the conflict between
      the need to exercise and the adverse effects of the inclement weather.
      All of this made it much more difficult for him to maintain his
      health–past, present, and future.

Ex. GG, Doc. 127-31, Skelton Response to Interrogatories at 5.

      On March 31, 2004, Defendant Kroeker denied Mr. Skelton’s grievance,

stating that “it is not fiscally possible for the facility to invest in building another

indoor exercise area or to place rooves [sic] over the disciplinary segregation yard


                                          - 17 -
area” and that “[t]here is no plan to issue gloves and/or rain gear to segregation

inmates for use during yard periods.” Ex. L, Doc. 127-11, Grievance

BA00011691 at 8, 9. Defendant Bruce concurred with her denial. Id. at 1. Mr.

Skelton alleges that Defendants Bruce and VanHoose violated his Eighth

Amendment rights by creating the policies regarding the exercise yard and that

Defendant Kroeker violated his Eight Amendment rights by being deliberately

indifferent to his health and safety regarding exercise opportunities for inmates in

segregation. 1 R., Doc. 121, Amended Pretrial Order ¶ 6(a)(2)(a)-(c). The

district court granted summary judgment for the Defendants, holding that Mr.

Skelton’s minimal exposure to the elements without gloves and a hat did not

amount to an Eighth Amendment violation. 3 R., Doc. 140 at 16.

      We have held that the Eighth Amendment requires humane living

conditions, including adequate clothing and shelter. See Barney v. Pulsipher, 143

F.3d at 1310 (citing Farmer, 511 U.S. at 832-33). Other circuits have found

Eighth Amendment violations where inmates were forced to experience inclement

weather without adequate clothing. See e.g., Gordon v. Faber, 973 F.2d 686 (8th

Cir. 1992) (affirming Eighth Amendment violation where prison official forced

inmates outside in sub-freezing temperatures and refused to provide hats and

gloves); Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992) (affirming district court’s

order requiring prison to provide inmates with coats, hats, gloves, and, under

specified circumstances, boots during winter). In Faber, the prison official forced

                                        - 18 -
the segregation inmates outside to exercise–despite their request to stay

indoors–for an hour to an hour and forty-five minutes while guards searched for a

weapon in the cellhouse. 973 F.2d at 687. The official refused to supply readily

available hats and gloves, and inmates were not allowed to see a nurse until

several hours after the incident, despite their complaints of frostbite. See id. In

Knop, the district court found that the jackets provided to the inmates–either

lightweight unlined or medium-weight lined–were insufficient to protect inmates

from Michigan winters and ordered the prison to provide “constitutionally

adequate winter coats, hats, gloves, and, under specified circumstances, boots.”

See Knop v. Johnson, 667 F. Supp. 467, 475-77 (W.D. Mich. 1987).

      Exposure to inclement weather without proper clothing can meet the

objective prong of an Eighth Amendment violation, but based on Mr. Skelton’s

limited exposure to adverse conditions, there could be no such violation here. See

DeSpain, 264 F.3d at 974 (“[T]he length of exposure to the conditions is often of

prime importance.”). The previously cited cases are distinguishable. Unlike the

inmates in Faber, Mr. Skelton was never forced to go outside. He was always

informed of the outside conditions and always had the option to stay indoors. On

two occasions–totaling 20 and 30 minutes–he was not allowed to return inside

despite his requests. In addition, unlike the inmates in Knop, he was provided a

wool-lined denim coat. “Mere discomfort or temporary adverse conditions which

pose no risk to health and safety do not implicate the Eighth Amendment.”

                                        - 19 -
Whitington v. Ortiz, No. 07-1425, 2009 WL 74471, at *6 (10th Cir. Jan. 13, 2009)

(unpublished) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Given the

temporary nature of Mr. Skelton’s exposure to inclement weather, a rational jury

could not find that he faced a “substantial risk of serious harm to [his] health or

safety.” See DeSpain, 264 F.3d at 973 (quotation marks and citation omitted).

      Mr. Skelton also claims that HCF violated a 1996 civil order requiring

prison facilities in Kansas to provide a cover in their segregation exercise yards

and to provide gloves, coats, hooded sweatshirts, and hats to inmates during

winter months. See Porter v. Graves, Case No. 77-3045-RDR (D. Kan. 1996); 3

R., Doc. 139-2 at 5, 6. The district court rejected that argument, finding that it

was unclear whether the order applied to HCF, and even if it did, the order was no

longer in effect, as the case was closed on October 22, 1996. 3 R., Doc. 140 at

15. In addition, the court noted that Mr. Skelton cannot prove an Eighth

Amendment violation merely by pointing to non-compliance with a court order.

      Although the Porter case was closed on October 22, 1996, the final order

expressly stated that “neither party is estopped from raising the application of the

Prison Litigation Reform Act and the parties may by motion seek any relief

provided for by the Prison Litigation Reform Act.” 3 R., Doc. 139-3 at 2. Even

if the order still applies, we agree with the district court that non-compliance with

an order does not, on its face, violate the Eighth Amendment. 3 R., Doc. 140 at

16. As discussed above, we conclude that there was no Eighth Amendment

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violation based on the conditions in the exercise yard.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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