                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3707
                         ___________________________

                                   Danzel Stearns,

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                        Inmate Services Corporation, et al.,

                      lllllllllllllllllllllDefendants - Appellants
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Jonesboro
                                   ____________

                          Submitted: September 25, 2019
                              Filed: April 29, 2020
                                 ____________

Before KELLY, MELLOY, and STRAS, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      Danzel Stearns filed a 42 U.S.C. § 1983 action against Inmate Services
Corporation (ISC). A county in Mississippi hired ISC to transport Stearns, a pretrial
detainee subject to extradition, from Colorado. The trip could have taken under 17
hours. Stearns alleged ISC violated Stearns’s right to be free from punishment when
ISC instead transported Stearns, shackled and unable to lie down, for eight
continuous days across twelve states, with only momentary breaks for bathroom use.
ISC moved for summary judgment, which the district court granted. Based on the
standards applicable to pretrial detainees as contrasted with convicted prisoners, ISC
is not entitled to summary judgment on the current record. Accordingly, we reverse.

                                          I.

       On appeal from a grant of summary judgment, we state the facts in the light
most favorable to Plaintiff. At all times relevant, Danzel Stearns was a pretrial
detainee. In 2016, a county in Mississippi hired ISC to transport Stearns from
Colorado to Mississippi, where Stearns was subject to an outstanding warrant for the
sale of a controlled substance. On September 17, an ISC vehicle driven by two
employees picked up Stearns at the county jail in Colorado Springs, Colorado. ISC
represented to the contracting county that Stearns’s transport would be 1,145 miles,
which is roughly the distance of a direct drive from Colorado Springs to New Albany,
Mississippi. The drive could be completed in under 17 hours. Stearns understood
that his transport would take no more than two days.

       Instead of driving directly east from Colorado to Mississippi, the ISC vehicle
traveled west through at least twelve other states, some states more than once,1 where
additional detainees2 were picked up and dropped off. Stearns was on the ISC vehicle
for eight days until he was dropped off on September 24. The ISC vehicle made no
overnight or lengthy stops—it drove essentially continuously. The two drivers took
turns sleeping on a mattress in the front of the vehicle. The detainees remained in

      1
        According to records kept by the drivers, the transport vehicle made stops in
the following states, in the following order, after picking Stearns up in Colorado:
Wyoming, Utah, Montana, Washington, Oregon, California, Nevada, California,
Nevada, California, Nevada, Arizona, New Mexico, Arizona, New Mexico, Texas,
Arkansas, Missouri, Arkansas, and Mississippi (where it delivered Stearns).
      2
       The passengers included pretrial detainees, like Stearns, and also convicted
prisoners.

                                         -22-
upright, seated positions, making it difficult to sleep for any period beyond “cat
naps.” Per ISC policy, Stearns and the other detainees were kept in handcuffs and leg
irons, connected by a belly chain. The restraints caused Stearns’s ankles and wrists
to become raw. ISC policy requires that restraints be removed “from inmates that are
on transport more than 48 hours.”

       There were no bathrooms in the vehicle. The van paused at rest stops and gas
stations infrequently. Stearns testified in a deposition that, because of the infrequent
bathroom stops, passengers needed to urinate in cups, which then spilled onto the
floor. He also testified that a female passenger defecated in her pants after stating
multiple times, to no avail, that she needed a bathroom stop. Stearns remained
shackled and partially handcuffed during bathroom stops, making hygiene difficult.
Stearns described developing “clogs of manure” in his underwear and developed a
perianal irritation as a result of being unable to properly clean himself after using the
bathroom. The drivers provided Stearns with an over-the-counter medication to treat
the irritation.

       The ISC vehicle was overcrowded at times, with 15 to 17 people. When
passing through Phoenix, Arizona, the air-conditioning unit broke for roughly 6
hours. Stearns was unable to shower or change clothes for the entire trip, causing his
clothes to become dirty and darker in color. ISC policy required that he be given new
clothes. Upon arriving in Mississippi, he discovered ringworm on his stomach. The
record does not make clear whether the ringworm developed purely as a result of the
conditions in the vehicle. Additionally, Stearns did not have open access to food and
drink. ISC policy provided that prisoners be provided with water and fast food.
Stearns testified that he was provided limited amounts of water and fast food two to
three times a day.

     During Stearns’s transport, ISC had policies and procedures governing food,
medical care, and restraints. ISC policies did not expressly cover whether the proper

                                          -33-
driving route for prisoner transport is the most direct route. Nor did ISC policies
expressly require their vehicles to drive through the night. However, according to the
record, it was normal for ISC to pick up and drop off multiple prisoners during a trip,
resulting in a prisoner’s transport, like Stearns’s, being extended far beyond what a
direct route would require. The record shows that the length of Stearns’s trip, and the
lack of overnight stops, was within ISC’s normal operations. For example, ISC’s
medical policy expressly contemplated transporting inmates for up to 10 days.
Further, an ISC employee testified in a deposition that Stearns was transported west
instead of east simply because the ISC vehicle already had inmates on it that needed
to go to Wyoming and Utah. The parties dispute the extent to which Stearns’s
transport was governed by ISC custom. In support of his opposition to summary
judgment, Stearns filed multiple affidavits from other prisoners transported by ISC
in conditions, and for lengths of time, similar to those at issue here.

                                           II.

       Stearns initially filed suit in the Eastern District of California. On Defendant’s
motion, the suit was transferred to the Eastern District of Arkansas pursuant to 28
U.S.C. § 1404(a).3 Stearns’s complaint brought class action claims under 42 U.S.C.
§ 1983 for violations of the Fourth, Eighth, and Fourteenth Amendments and under
California state law. Because Stearns was incarcerated when he filed his initial
complaint, ISC filed an initial motion for summary judgment under the Prison
Litigation Reform Act. The district court denied the motion.

        ISC filed a second motion for summary judgment, which Stearns resisted.
The district court granted summary judgment for ISC on all of Stearns’s § 1983
claims: excessive force, inadequate medical care, and conditions of confinement. As


      3
      ISC admits it is a citizen of Arkansas with its principal place of business in
West Memphis, Arkansas. Stearns is a citizen of Mississippi.

                                          -44-
to Stearns’s conditions-of-confinement claim, the district court applied a deliberate
indifference standard and found ISC was entitled to summary judgment because
Stearns was unable to show evidence that he “endured an extreme deprivation that
resulted in the denial of the minimal civilized measures of life’s necessities or created
a substantial risk to his health or safety.” Stearns timely appealed, challenging the
district court’s ruling as to his conditions-of-confinement claim.

                                          III.

      We review a grant of summary judgment de novo. Jackson v. Stair, 944 F.3d
704, 709 (8th Cir. 2019). In doing so, we view the evidence in the light most
favorable to Stearns and draw all reasonable inferences in his favor. Id. Summary
judgment is appropriate when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       ISC has conceded for purposes of summary judgment that it was acting under
color of state law when it transported Stearns. West v. Atkins, 487 U.S. 42, 48
(1988). As such, ISC may be liable under § 1983 for harms caused by its own
unconstitutional customs or policies. Monell v. Dep’t of Social Servs., 436 U.S. 658,
690 (1978); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975–76 (8th Cir. 1993).
“The proper test is whether there is a policy, custom, or action by those who
represent” ISC’s official policy “that inflicts injury actionable under § 1983.”
Sanders, 984 F.2d at 976. Contrary to a great majority of our § 1983 cases, qualified
immunity was not raised in ISC’s motion for summary judgment. Therefore, we are
not asked whether ISC’s policies violated a clearly established constitutional right,
but rather, whether ISC is entitled to summary judgment.




                                          -55-
                                          A.

       We analyze Stearns’s claim under the Fourteenth Amendment’s Due Process
Clause rather than the Eighth Amendment because the claim relates to his status as
a pretrial detainee. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). “Due process
requires that a pretrial detainee not be punished.” Id. “[O]n the other hand,” an
inmate who has been convicted and sentenced “may be punished, although that
punishment may not be ‘cruel and unusual’ under the Eighth Amendment.” Id.
(emphasis added). The parties argue as to what Stearns must prove under Bell. They
point out possible inconsistencies within our precedent and ask for clarification as to
the appropriate standards. ISC argues that Stearns must show deliberate indifference.
Stearns argues that Bell requires an objective showing.

       In Bell v. Wolfish, the Supreme Court articulated the standard governing
pretrial detainees’ claims related to conditions of confinement. The court held that
the government may detain defendants pretrial and “may subject [them] to the
restrictions and conditions of [a] detention facility so long as those conditions and
restrictions do not amount to punishment, or otherwise violate the Constitution.” Id.
at 536–37. The Court articulated two ways to determine whether conditions rise to
the level of punishment. A plaintiff could show that the conditions were intentionally
punitive. Id. at 538. Alternatively, if there is no expressly demonstrated intent to
punish, the plaintiff could also show that the conditions were not reasonably related
to a legitimate governmental purpose or were excessive in relation to that purpose.
Id. at 538–39. If conditions are found to be arbitrary or excessive, it is permissible
to “infer that the purpose of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.” Id. at 539.

      Stearns does not allege ISC’s policies or customs were intentionally punitive.
Therefore, to succeed on his conditions-of-confinement claim, he must show that



                                         -66-
ISC’s policies or customs caused conditions that were not reasonably related to a
legitimate governmental purpose or were excessive in relation to that purpose. In
Morris v. Zefferi, 601 F.3d 805, 809 (8th Cir. 2010), for example, a pretrial detainee
raised a conditions-of-confinement claim based on a jail’s decision to transport him
in a dog cage. We applied Bell to determine whether the conditions of confinement
were reasonably related to the proffered legitimate penological goal of preventing
escape. Id. at 811. As part of our qualified immunity analysis, we found the jail’s
decision to transport a pretrial detainee “in a small, unsanitary dog cage for the
ninety-minute drive . . . with no compelling urgency and other options available, was
excessive in relation to the goal of preventing escape, and thus, an inference may
reasonably be made” that the conditions rose to the level of punishment. Id.

      We conducted similar analysis in Haslar v. Megerman, 104 F.3d 178, 179–80
(8th Cir. 1997), when a pretrial detainee challenged a hospital’s policy of keeping
inmates shackled during treatment both as (1) a failure to provide him with adequate
medical care for renal failure, and (2) punishment. As to the plaintiff’s claim that the
shackling policy constituted punishment, we applied Bell, compared “the legitimate
penological goal of preventing inmates awaiting trial from escaping [a hospital’s] less
secure confines” to the conditions of “restraining hospitalized inmates to their beds,”
and found no constitutional violation for qualified immunity purposes. Id. at 180.
However, as to the plaintiff’s claim of a failure to meet his medical needs, we applied
the deliberate indifference standard. Id.

       ISC argues that instead of applying Bell to Stearns’s claim, we should apply
a subjective deliberate indifference standard. ISC relies on isolated dicta to argue that
we should effectively ignore the clear command of Bell. Specifically, in Morris, we
stated that “[a]lthough this court has yet to establish a clear standard for pretrial
detainees, we repeatedly have applied the same ‘deliberate indifference’ standard as
is applied to Eighth Amendment claims made by convicted inmates.” Morris, 601



                                          -77-
F.3d at 809 (quotation omitted). Despite this dicta, we applied Bell in Morris because
the case involved a conditions-of-confinement claim. Id. at 810–11.

       There is simply no need to rely upon dicta to determine the standard applicable
to Stearns’s claim. Since Bell became law, we have applied its standard to
conditions-of-confinement claims brought by pretrial detainees. See, e.g., Putman v.
Gerloff, 639 F.2d 415, 418–19 (8th Cir. 1981); Campbell v. Cauthron, 623 F.2d 503,
505 (8th Cir. 1980). In Putman, following an attempted escape, prison guards
chained together pretrial detainees and placed them in a cell overnight, where they
were “forced to remain sitting up all night and could not sleep.” Id. at 418. A jury
returned a verdict for the defendant–sheriff. The plaintiffs appealed, claiming that
the jury instructions improperly required them to prove the conditions “amounted to
cruel and unusual punishment.” Id. Citing Bell, we ruled that the instructions
improperly borrowed Eighth Amendment standards.4 Id. at 419. We held that the
standard applicable to the plaintiffs’ claim of overnight chaining and handcuffing was
Bell’s no-punitive-conditions standard. Id. (“Bell states that ‘the proper inquiry is
whether (the) conditions amount to punishment of the detainee.’” (quoting Bell, 441
U.S. at 535)).

      4
          Rather, applying Bell, we stated:

      [A] proper instruction on the overnight chaining would have told the
      jury that as pretrial detainees, [the plaintiffs] had the right not to be
      punished. If the plaintiffs were chained overnight to be punished, they
      were then deprived of liberty without due process. The jury may find
      direct evidence of intent to punish, or it may infer that this intent existed
      if it finds that the overnight chaining was not reasonably related to
      insuring the presence of [the plaintiffs] at trial and preserving the
      security of the jail, or if those purposes could have been achieved by
      alternative and less harsh methods.

Putman, 639 F.2d at 420.


                                              -88-
       Stearns’s claim is based on his allegations that he was affirmatively subjected
to conditions—by way of ISC’s policies or customs—that were punitive. In
particular, he alleges he was shackled and transported for eight days in foul
conditions resulting in sores, infections, and loss of liberty, when all that was
necessary was a 17 hour drive. Therefore, the objective5 standard of Bell controls.6

                                          B.

       Because this is a case “based on a pretrial detainee’s right to be free from
punishment,” it is governed by Bell. Butler, 465 F.3d at 344. Under Bell, the
fighting question is whether ISC’s policies or customs that caused the conditions of
Stearns’s confinement were reasonably related to a legitimate goal or were excessive
as compared to that goal. If found to be arbitrary or excessive, it is permissible to
“infer that the purpose of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.” 441 U.S. at 539.

      Under this standard, ISC is not entitled to summary judgment as a matter of
law. Here, prior to being found guilty of any offense, Stearns was subjected to
painful, unsanitary, and severe conditions and restraints for over one week. However,


      5
         Here, where the jailor’s own policies and customs are at issue for allegedly
giving rise to punishment, knowledge is implied through the policies and customs.
It still remains true that “liability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.” County of Sacramento v. Lewis,
523 U.S. 833, 849 (1998). ISC remains sheltered from liability for mere negligence
under the Bell standard.
      6
        The parties cite Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015), which
clarified that the standard for a pretrial detainee’s excessive force claim is objective
reasonableness. The parties argue over Kingsley’s impact on all pretrial-detainee
claims. Without deciding the impact of Kingsley, we decline to address it here.


                                          -99-
what appeared to be necessary, based on ISC’s own representations in its contract,
was a much shorter transport of no more than 24 hours. “[T]he length of time a
prisoner is subjected to harsh conditions is a critical factor in our analysis.” Smith
v. Copeland, 87 F.3d 269, 269 (8th Cir. 1996).

       Importantly, we are concerned with the totality of circumstances of Stearns’s
confinement and not any particular condition in isolation. Therefore, to the extent the
parties conduct “piecemeal analysis of the conditions,” they “miss[] the point.”
Morris, 601 F.3d at 810. Stearns “did not experience these conditions in isolation.”
Id. ISC relies on Wilson v. Seiter, 501 U.S. 294, 305 (1991), an Eighth Amendment
case, to argue that the totality of the circumstances will not rise to unconstitutional
levels unless there is a “specific deprivation of a single human need.” This standard,
however, comes from our understanding of cruel and unusual punishment. Id.
(“Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and
unusual punishment when no specific deprivation of a single human need exists.”).
In contrast, “[d]ue process requires that a pretrial detainee not be punished.” Bell,
441 U.S. at 535 n.16 (emphasis added). Therefore, our analysis cannot turn on a
standard that merely prohibits cruel and unusual punishment.7 See Putman, 639 F.2d
at 419 (stating that an improper jury instruction “effectively immunized the


      7
        To the extent ISC argues that our court’s decision in Whitnack v. Douglas
Cty., 16 F.3d 954, 957 (8th Cir. 1994), mandates the application of Wilson and the
deliberate indifference standard to a pretrial detainee’s conditions of confinement
case, we disagree. The facts in Whitnack are nothing like those here. There, the
plaintiffs were moved into a jail cell with a filthy toilet. The plaintiffs complained
and received cleaning supplies three or four hours later. Id. at 956. We ruled that the
evidence of those conditions, and the failure of the jail to provide a cleaner cell, was
insufficient to constitute a deprivation of constitutional rights. Id. at 957. Further,
to the extent Whitnack contradicts our prior ruling in Putman, 639 F.2d at 418–19,
Putman controls. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011).



                                         -110-
defendants from liability for all but punishment that was cruel and unusual, while Bell
teaches that ‘under the Due Process Clause, a detainee may not be punished prior to
an adjudication of guilt in accordance with due process of law’” (quoting Bell, 441
U.S. at 535)).

       Viewing the totality of the circumstances, we do not focus narrowly and require
deprivation of any single need. Although, “[t]here is . . . a de minimis level of
imposition with which the Constitution is not concerned.” Bell, 441 at 539 n.21
(quoting Ingraham v. Wright, 430 U.S. 651, 674 (1977)). The conditions of Stearns’s
confinement were far from de minimis and a jury could reasonably conclude that, on
this record, the conditions were arbitrary or excessive when compared to the
government’s perceived goal of securely transporting Stearns to his destination.

       Whether, in the end, ISC had policies and customs that caused the conditions
of Stearns’s confinement, is a jury question.8 ISC has no express policy for the length
of time a prisoner should be kept in transit. However, ISC policies clearly
contemplate transports as long as 7 to 10 days. Further, the record, including
affidavits by other prisoners transported by ISC, shows that it was well within ISC
practice to pick up and drop off prisoners on multi-state journeys such as this one.
If ISC is found to have a custom of extending a pretrial detainee’s transport in this
way, given the totality of the circumstances present in this case, a jury could
reasonably view the extension as causing conditions that are excessive in comparison
to the presumed goal of securely transporting Stearns from Colorado to Mississippi.
See Bell, 441 U.S. at 535–38. Therefore, viewing the totality of the circumstances
endured by Stearns, ISC is not entitled to summary judgment as a matter of law.




      8
          Stearns raised his argument about ISC custom below.



                                         -111-
                                        IV.

      For these reasons, we reverse the district court’s ruling that ISC was entitled
to judgment as a matter of law and remand for further proceedings.

STRAS, Circuit Judge, concurs in the judgment.
                       ___________________________




                                        -112-
