                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-4048
                                    ___________

Levester Gillard,                    *
                                     *
            Appellant,               *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Western District of Arkansas.
Amy Kuykendall, Jail Administrator,  *
Howard County Jail; Butch Morris,    * [UNPUBLISHED]
Sheriff, Howard County, Arkansas,    *
                                     *
            Appellees.               *
                                ___________

                              Submitted: September 4, 2008
                                 Filed: October 2, 2008
                                  ___________

Before MURPHY, BYE, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Arkansas inmate Levester Gillard appeals after the district court disposed of his
42 U.S.C. § 1983 lawsuit in a summary judgment order and a subsequent order
following a bench trial. Claiming First and Eighth Amendment violations, Gillard
sought damages against Howard County Sheriff Butch Morris and Howard County
Jail (HCJ) Administrator Amy Kuykendall.1 We affirm in part and reverse in part.


      1
       Gillard has waived his other claims on appeal by not addressing them. See
K.D. v. County of Crow Wing, 434 F.3d 1051, 1055 n.4 (8th Cir. 2006).
       Initially, we disagree with Gillard that the district court abused its discretion by
denying his motions to compel discovery as moot or as premature, see Elnashar v.
Speedway SuperAmerica, LLC, 484 F.3d 1046, 1052 (8th Cir. 2007) (standard of
review is for gross abuse of discretion), or that the court prematurely granted summary
judgment, see Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 911 (8th Cir.
1999) (party opposing summary judgment who believes he has not had adequate time
for discovery must seek relief under Federal Rule of Civil Procedure 56(f), which
requires filing of affidavit showing what specific facts further discovery might unveil).
Gillard also complains that he should have been granted leave to amend his complaint
to assert individual-capacity claims, but we need not entertain this argument because
the district court in fact considered individual-capacity claims.

       Turning to the merits, we conclude that the district court properly granted
summary judgment for defendants on Gillard’s Eighth Amendment claim arising from
delays in administering his medication. See Johnson v. Blaukat, 453 F.3d 1108, 1112
(8th Cir. 2006) (standard of review). First, there was no evidence that Sheriff Morris
knew of Gillard’s medical problems or of problems with the administration of his
medication. See Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir.) (to establish
personal liability of supervisory defendant, plaintiff must show personal involvement
in, or direct responsibility for, deprivation of constitutional rights), cert. denied, 128
S. Ct. 155 (2007). Second, while Kuykendall responded to Gillard’s grievances about
the administration of his medications, the record shows merely that on four occasions
over a two-month period, various jailers (not defendants here) were late in giving
Gillard his medications and did not always administer them with meals as Gillard
apparently desired. See Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006) (to
prevail on Eighth Amendment individual-capacity claims, inmate must show that
defendant prison officials deliberately disregarded objectively serious and known
medical need); see also Hartsfield v. Colburn, 491 F.3d 394, 396 (8th Cir. 2007)
(deliberate-indifference standard applies to pretrial detainees’ Eighth Amendment



                                           -2-
medical-care claims), cert. denied, 128 S. Ct. 1745 (2008).2 Significantly, Gillard
offered no evidence showing any adverse consequences from the delays in the receipt
of his medications. See Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005)
(objective seriousness of delay in treatment must be measured by reference to effect
of delay, which must be shown by verifying medical evidence).

       The First Amendment claims3 were resolved by the district court following a
bench trial, and we review the court’s related factual findings for clear error and its
legal conclusions de novo. See Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). We
conclude that Gillard’s claim regarding the decision to prohibit him on one occasion
from attending a weekly worship service was properly dismissed: he testified that his
pastor was allowed to visit him that week, and that in all subsequent weeks while at
HCJ, his pastor was allowed to visit for an hour of worship. See Brown v. Polk
County, Iowa, 61 F.3d 650, 660 (8th Cir. 1995) (religious adherent must show that
challenged governmental action substantially burdened religious practice, i.e.,
prevented him from engaging in conduct his religion requires). We further conclude,
however, that remand is warranted on the First Amendment claim arising from the
decision to punish Gillard for not cleaning his cell on Saturdays despite his
protestations that doing so contravened his religious beliefs. The testimony on this
claim was as follows.

      From March 1999 until Gillard was incarcerated on June 18, 2004, he had been
a member and regular attendee at a nondenominational church known as the New
Testament House of Prayer (NTHP). Based on interpretation of certain Biblical
passages, NTHP members believe that the Sabbath is on Saturday, and that from
6 p.m. on Friday until 6 p.m. on Saturday no work is to be done, and believers must


      2
       During part of Gillard’s incarceration at HCJ, he was a pretrial detainee.
      3
       We decline to consider Gillard’s newly asserted claim of religious
discrimination. See Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).

                                         -3-
engage in complete rest. The only exception is when a member must work to feed his
family, would lose his job if he refused to work when scheduled, and has no choice
in his schedule. Gillard’s pastor testified that making a bed did not constitute work,
but that all other household chores should be done before the Sabbath begins. Gillard
testified that since joining NTHP he had worked on the Sabbath only when he was
scheduled to work where he was employed; other witnesses confirmed this testimony.

       HCJ has a policy requiring inmates to clean their cells before breakfast.
Inmates must sweep, mop, and empty trash. If an inmate refuses to do so, telephone
and television access are withheld until the next day--if the inmate agrees to clean his
cell that day. The policy was instituted for health and safety reasons, because lack of
cleanliness and accumulated trash attract insects. Kuykendall testified that, while
Gillard was at HCJ, there was an ant problem in his cell because he had collected juice
boxes under his bed, and an exterminator was required to spray; Gillard did not recall
the ant problem. There were no exceptions made to the cell-cleaning policy, such as
allowing an inmate to clean at an alternate time, because other inmates would view
exceptions as special treatment and this would cause “mass confusion.”

       On June 26, Gillard’s first Saturday at HCJ, he refused to clean his cell, and his
television and phone privileges were rescinded. Defendants denied knowing that any
other privileges were denied, but Gillard insisted that at times when he refused to
clean, he was also denied yard call and library time until the next morning when he
performed the requisite cleaning, which he testified included scrubbing the shower
and toilet and cleaning windows. In a June 26 grievance, Gillard complained that he
interpreted the Bible as requiring him to rest on the seventh day and thus he could not
be punished for refusing to clean his cell on Saturday. Kuykendall responded that,
because Gillard refused to clean, his phone was turned off just as it would be for any
inmate who so refused. On July 3, the next Saturday, Gillard’s privileges were again
taken away until the next day when he refused to clean his cell. Gillard testified that
at one point he complained directly to Sheriff Morris, who responded that there would

                                          -4-
be no exceptions to the cell-cleaning requirement. Gillard estimated he was punished
over twenty times at HCJ for refusing to clean.

       We conclude the district court erred in determining that requiring Gillard to
mop and sweep his cell on Saturdays did not substantially burden his sincerely held
religious belief. Defendants did not challenge the sincerity of Gillard’s religious
belief, and while they presented testimony that the cleaning took only five to ten
minutes, the evidence also showed that performing any work whatsoever on a
Saturday before 6 p.m. (other than making a bed, according to Gillard’s pastor)
violated Gillard’s religious belief unless a job that he was holding to support his
family required him to work on Saturday.4 Cf. Love v. Reed, 216 F.3d 682, 685-86
& nn.5-6 (8th Cir. 2000) (upholding conclusion that inmate’s sincerely held religious
belief--that from sundown on Saturday to sundown on Sunday he was prohibited from
benefitting from work of others, such as meal preparation--was substantially burdened
by prison’s refusal to provide peanut butter and bread in his cell on Saturday, so he
could prepare sandwiches for Sunday).

       We also disagree with the district court’s application of the factors announced
in Turner v. Safley, 482 U.S. 78 (1987), for determining whether a prison policy that
restricts an inmate’s constitutional rights is nonetheless valid because it is related to
legitimate penological interests. See Murphy v. Mo. Dep’t of Corr., 372 F.3d 979,
982-83 (8th Cir. 2004) (Turner factors are whether (1) there is valid, rational
connection between policy and government interest justifying it, (2) there are
alternative means available for inmate to exercise right, (3) to accommodate inmate
would have significant ripple effect on guards, other inmates, and prison resources,
and (4) there is alternative that fully accommodates inmate at de minimis cost to valid

      4
        This might be analogized to requiring a Muslim inmate to eat only a small
amount of pork. Cf. Hayes v. Long, 72 F.3d 70, 74 (8th Cir. 1995) (it is clearly
established that Muslim inmates have right to avoid all contact with pork or any pork-
contaminated food).

                                          -5-
penological interests). The Love court rejected the prison defendants’ assertions that
there was a rational, valid connection between the policy prohibiting inmate Love
from keeping kitchen food in his cell on the Sabbath and the purportedly legitimate
penological interests similar to the ones raised here. See Love, 216 F.3d at 690-91
(accommodating Love posed no more threat to sanitation than already common
practices, such as allowing kitchen food in cells on religious holidays, and dietary
accommodations given to Islamic prisoners during Ramadan could also lead to other
prisoners requesting such accommodations). Kuykendall testified that at one point the
ant problem arose due to a collection of juice boxes under Gillard’s bed, but we fail
to see how allowing Gillard to empty his trash and clean his cell after 6 p.m. instead
of around 6 a.m.--once a week, on Saturdays--would compromise HCJ’s sanitation.



       Further, we conclude that Gillard had no other consistent or dependable way of
exercising his right to observe the Sabbath: he was forced to choose between
violating his religious beliefs or suffering punishment. Cf. id. at 689-90 (Love had no
consistent and dependable way of exercising right to observe Sabbath without
requested accommodation, because he could not always afford to buy pre-packaged
food from commissary, and choice between fasting or compromising religious beliefs
was really no choice at all). Finally, there was no evidence presented at trial as to the
burden that accommodating Gillard would place on jail staff, and thus no basis for
concluding that permitting Gillard to clean his cell before 6 p.m. on Friday night, or
soon after 6 p.m. on Saturday--which would fully accommodate his right to observe
the Sabbath--would result in more than a de minimis cost to valid penological
interests. Cf. id. at 691 (providing food to Love on Saturdays fully accommodated his
rights at de minimis cost to valid penological interests); Murphy v. Carroll, 202 F.
Supp. 2d 421, 422-25 (D. Md. 2002) (finding no rational connection between policy
requiring inmates to clean cells on Saturdays and prison’s interest in efficiency, safety,




                                           -6-
and security, as there were obvious and readily available alternatives, such as
providing Orthodox Jewish inmate cleaning materials on Sundays).5

       Accordingly, we reverse and remand the First Amendment claim arising from
application of the cell-cleaning policy to Gillard on his Sabbath for entry of judgment
in favor of Gillard with an award of appropriate relief. In all other respects, we affirm.

                        ______________________________




      5
       The Murphy court found defendants entitled to qualified immunity, but
defendants in this case did not seek summary judgment on that basis or raise that as
an issue at the evidentiary hearing.

                                           -7-
