                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-6373


JEAN B. GERMAIN,

                Plaintiff – Appellant,

           v.

BOBBY SHEARIN; JAMES HOLWAGER; LT. HARBAUGH; SERGEANT
SMITH; BRUCE A. LILLER; SGT. MCALPINE; LAURA MOULDEN,

                Defendants – Appellees.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:11-cv-01613-JFM)


Argued:   March 19, 2013                    Decided:   July 3, 2013


Before GREGORY, WYNN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED: Scott Martin, GIBSON, DUNN & CRUTCHER, LLP, Washington,
D.C., for Appellant.     Siobhan Kelly Madison, OFFICE OF THE
ATTORNEY   GENERAL   OF   MARYLAND,  Baltimore, Maryland,   for
Appellees.   ON BRIEF: Douglas F. Gansler, Attorney General of
Maryland, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Jean    Germain      filed      this    action      under   42    U.S.C.    § 1983

against    various    officials        and    employees     at   the     North   Branch

Correctional Institution (“NBCI”) in Maryland, 1 where he is an

inmate,     alleging       that        the        defendants,     with     deliberate

indifference to his medical needs, attempted to place him in a

double    cell,    and    that       the    conditions     of    confinement     in   a

contingency cell violated the Eighth Amendment.                          The district

court granted defendants summary judgment, concluding that the

defendants’ attempt to place Germain in a double cell was part

of a treatment plan for his anxiety issues and that there was no

evidence    that     he   had    a    serious       or   significant     physical     or

emotional injury resulting from the conditions of confinement. 2

For the following reasons, we affirm in part, vacate in part,

and remand.

                                             I.

                                             A.




     1
       The defendants are Bobby Shearin, Warden; Bruce Liller,
Acting Chief of Psychology; James Holwager, Chief of Psychology
Services;   Laura  Booth-Moulden,   Mental  Health  Professional
Counselor; and three correctional officers: Lieutenant Harbaugh,
Sergeant Smith, and Sergeant McAlpine.
     2
        The district court                 also granted defendants summary
judgment on a retaliation                   claim, which Germain does not
challenge on appeal.



                                             2
     This appeal has its origins in a prior lawsuit filed by

Germain,    where       he     sought       injunctive      relief      granting      him

permanent single-cell status.                Germain v. Shearin, No. 09-3097,

2010 WL 4792676 (D. Md. Nov. 18, 2010).                     In that suit, Germain

alleged that he was sexually assaulted by a cellmate at the

Jessup Correctional Institution (“JCI”) in 1998.                         In response,

Germain    stabbed      the     assailant        over   a   hundred     times,     which

resulted in German receiving an additional thirty years on his

sentence.       Shortly       thereafter,        Maryland   officials     transferred

Germain to the Maryland Correctional Adjustment Center, where he

stayed    until    he    returned      to   JCI    in   2003.     Dr.    Musk,     chief

psychologist at JCI, recommended that JCI place Germain in a

single cell.       In 2008, Germain was transferred to NBCI, where,

with some exceptions, he was housed in a single cell until late

2009.

     In June 2009, prison officials informed Germain that they

intended to place him in a double cell.                      As a result, Germain

suffered a panic attack, wrote letters to psychological staff,

and was eventually placed on suicide watch.                       In October 2009,

prison officials placed Germain in disciplinary segregation when

he   refused      to    accept    a    double      cell.      Psychologists        later

concluded      that     Germain       did    not    meet    the   criteria       to   be

permanently housed in a single cell, but he was returned to a

single cell for ninety days pending further evaluation.                          Germain

                                             3
then filed the prior lawsuit, seeking an injunction preventing

prison officials from placing him in a double cell.

     The district court dismissed the suit.                      While recognizing

that Germain had been diagnosed with anxiety disorder and had

acted violently in the past, the court concluded that prison

psychologists        were    adequately         treating      Germain’s     anxiety

disorder.      Id. at *4.    We affirmed.            See Germain v. Shearin, 430

F. App’x 220 (4th Cir. 2011).

                                       B.

        One   week   after   our   decision,         prison   officials    informed

Germain that they intended to place him with another inmate.

Germain contends that officials at NBCI never evaluated him to

determine whether he required housing in a single cell.                          Given

his anxiety, Germain expressed his unwillingness to be placed in

a double cell and informed at least one defendant, Sgt. Smith,

that he was suicidal.        Thereafter, officials placed Germain in a

“contingency” cell, 3 where he attempted suicide later that day.

J.A. 22-23.      After the suicide attempt, Germain was placed in a

holding cell, where he was continuously observed.

     The next day, Germain met with Dr. Bruce Liller, acting

chief    of    psychology    at    NBCI,       who    stressed    to   Germain    the

     3
       According to Sgt. Smith, “[a] contingency cell[] is like
any other cell, except that it has no bunks.      The inmate is
provided with a mattress and bedding material.” J.A. 20.



                                           4
importance of “demonstrating the ability to be double-celled.”

J.A. 108.       Germain, however, expressed reluctance.                             As a result,

Dr. Liller recommended that Germain be placed in a single cell

for    ninety     days    to    help     his       transition       to     a    double       cell.

Germain would have the opportunity to select a cellmate during

this period and receive further evaluation at the conclusion of

the ninety days.

       After    Germain     advised      Dr.        Liller    that    he       no    longer   had

suicidal thoughts, Germain was moved from a holding cell to a

contingency       cell.        Germain    contends           that    the       toilet    in    the

contingency cell was inoperable and filled with urine and feces;

he was deprived of toilet paper to clean himself after using the

toilet; and flies, ants, and other insects infested the cell.

Germain also contends that during his time in the contingency

cell   he   was    deprived      of    food,        lost   twenty-three             pounds,   and

suffered headaches.             Germain remained in the contingency cell

until June 12, 2011, when officials transferred him to a single

cell pursuant to Dr. Liller’s plan.

                                               C.

       On June 8, 2011, while still detained in the contingency

cell, Germain filed this § 1983 action against various officials

and employees at NBCI.            Defendants moved to dismiss or, in the

alternative, for summary judgment.                      The district court granted

defendants        summary      judgment,           concluding        that       one     of     the

                                               5
treatment goals for Germain was to acclimate him to a double

cell.       The    court    reasoned     that     defendants         did   not     act    with

deliberate indifference; rather, defendants instituted a course

of treatment that Germain disputed was the optimal treatment for

his     anxiety.           The   court      also     concluded          that       Germain’s

conditions-of-confinement            claim       failed       because      there    was    no

objective evidence that he had a serious or significant physical

or    emotional     injury.        Germain       moved    to    alter      or    amend     the

judgment, which the court denied.                 This appeal followed.



                                            II.

        The issues before us are whether the district court erred

in    granting      summary      judgment    on     Germain’s         claims       that   (1)

defendants        were   deliberately     indifferent          to    Germain’s       medical

needs, in violation of the Eighth Amendment, in assigning him to

a double cell and later keeping him in a contingency cell for

twelve days, and (2) the conditions in Germain’s contingency

cell violated the Eighth Amendment.

       We   review       Germain’s   challenges          to    the    district       court’s

entry of summary judgment de novo, viewing all facts and drawing

all inferences in his favor.                 See Emmett v. Johnson, 532 F.3d

291, 297 (4th Cir. 2008).              Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

                                             6
of law.”      Fed. R. Civ. P. 56(a).                A court must enter summary

judgment “against a party who fails to make a showing sufficient

to   establish      the   existence      of   an    element    essential      to   that

party’s case, and on which that party will bear the burden of

proof at trial.”          Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).      It is insufficient for the nonmovant to present “[t]he

mere existence of a scintilla of evidence,” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986), or “simply show that

there   is   some    metaphysical       doubt      as   to   the   material    facts,”

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).      Rather, the nonmovant must present “evidence on which

the jury could reasonably find for the plaintiff.”                           Anderson,

477 U.S. at 252.

      To survive summary judgment, therefore, Germain must put

forth evidence to create a material issue of fact as to both

elements of the familiar two-part test for an Eighth Amendment

claim, in which a plaintiff must prove “(1) that the deprivation

of a basic human need was objectively sufficiently serious, and

(2) that subjectively the officials acted with a sufficiently

culpable state of mind.”               De’lonta v. Angelone, 330 F.3d 630,

634 (4th Cir. 2003) (alterations and quotations omitted).

      With    respect     to     the    objective       prong,     “[o]nly     extreme

deprivations” are sufficient to constitute a violation of the

Eighth Amendment.          Id.     A prisoner may establish an extreme

                                          7
deprivation by showing “a serious or significant physical or

emotional injury resulting from the challenged conditions” or “a

substantial     risk    of    such   serious    harm    resulting       from   the

prisoner’s exposure to the challenged conditions.”                Id.

       To establish the subjective prong, a prisoner must prove

“that a prison official actually [knew] of and disregard[ed] an

objectively serious condition, medical need, or risk of harm.”

Id.    This deliberate indifference standard is not satisfied by

“a showing of mere negligence,” Grayson v. Peed, 195 F.3d 692,

695 (4th Cir. 1999), a “mere error of judgment or inadvertent

failure to provide medical care,” Boyce v. Alizaduh, 595 F.2d

948,     953   (4th    Cir.    1979)   (internal       quotations       omitted),

abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319

(1989), or mere disagreement concerning “[q]uestions of medical

judgment,” see Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir.

1975).      With this legal framework in mind, we now turn to the

substance of Germain’s claims.

                                       A.

       We   first   consider    Germain’s    argument    that     the    district

court erred in granting defendants summary judgment on his claim

that   defendants      were   deliberately     indifferent   to    his    medical

needs by (1) assigning him to a double cell on May 31, 2011; and

(2) delaying his reassignment to a single cell for almost two



                                       8
weeks following his suicide attempt and subsequent psychiatric

examination.

                                               1.

      According          to     Germain,       the     district         court         erred    in

concluding that his assignment to a double cell was pursuant to

a   treatment       plan       because    it    relied       solely      on     Dr.    Liller’s

report,     which       he     prepared      only    after      Germain’s       transfer      and

suicide attempt.              Thus, Germain argues that there is nothing in

the record to establish that defendants made a medical judgment

at the time of the transfer.                   Rather, Germain maintains that a

factfinder might infer deliberate indifference from defendants’

knowledge of his history of anxiety and his statement that he

was suicidal.

      For    the        most    part,     however,      Germain         does     not    present

sufficient        evidence        that       defendants        acted      with      deliberate

indifference.            Defendants’         knowledge       of    Germain’s        history    of

anxiety     is    insufficient          to    support      a      finding      of   deliberate

indifference with respect to the May 31, 2011, transfer because

there is no evidence that defendants believed Germain required a

single    cell.          To    the   contrary,       Dr.       Holwager     had     previously

concluded        that    Germain’s        anxiety      was        not   severe      enough    to




                                                9
require assignment to a single cell. 4                  And Dr. Liller’s June 1,

2011,        note,     together      with      the      other     record        evidence,

demonstrates that prison officials had a longstanding treatment

goal of assigning Germain to a double cell.                        At most, Germain

establishes         that    defendants    acted      negligently       in   transferring

him     without       an    evaluation.          Mere   negligence,         however,     is

insufficient to give rise to a § 1983 claim.                       Grayson, 195 F.3d

at 695.

        We reach a different conclusion as to Germain’s claim that

Sgt.        Smith   acted    with   deliberate       indifference       after    Germain

informed Sgt. Smith that he was suicidal.                       Defendants presented

no evidence to the district court at the summary judgment stage

to directly contradict this claim, and they failed to respond in

their brief to this particular argument.                    Moreover, none of the

district        court’s      grounds     for     granting       Sgt.    Smith    summary

judgment on this narrow issue withstand scrutiny.

        The district court concluded that Germain’s sworn statement

was contradicted by the record and that there was no evidence

that        defendants      took    Germain’s        suicide      threat      seriously.

However, whether Germain’s sworn statement is in fact false is a

credibility          determination,      which     is   properly       resolved     by    a

        4
       We may properly take judicial notice of Dr. Holwager’s
affidavit in Germain’s prior, related lawsuit.        See United
States v. White, 620 F.3d 401, 415 n.14 (4th Cir. 2010).



                                            10
factfinder,       not    a     “judge       ruling         on        a    motion    for     summary

judgment.”        Anderson,         477     U.S.    at     255.           Moreover,       Germain’s

sworn statement indicates that he informed Sgt. Smith of the

serious    risk     of       the     precise        type        of       harm   that      followed.

Certainly Germain’s statement to Sgt. Smith that he was suicidal

is sufficient for a factfinder to find that Sgt. Smith knew that

Germain posed a suicide risk.                   See Farmer v. Brennan, 511 U.S.

825, 837 (1994).

     The district court also erred in concluding that a suicide

cell was not materially different than the contingency cell in

which defendants placed Germain.                     The record demonstrates that a

suicide cell would have been stripped of any items Germain could

use to cause himself harm.                  The contingency cell, on the other

hand, had bedding--the very instrument Germain used to attempt

suicide.

     By submitting admissible evidence that he warned Sgt. Smith

of a serious risk of injury and that Sgt. Smith acted with

deliberate    indifference            to    that     risk,           Germain       has    raised   a

triable issue of fact.                See Odom v. S.C. Dep’t of Corr., 349

F.3d 765, 771 (4th Cir. 2003).                        Accordingly, this aspect of

Germain’s claim survives summary judgment.

                                               2.

     Germain      further          argues    that     a     factfinder          could      conclude

that defendants acted with deliberate indifference in continuing

                                               11
his   double-cell       status    and   contingency          cell     confinement       for

nearly    two     weeks    following     his       suicide      attempt.            Germain

complains that while Dr. Liller’s June 1, 2011, note indicated

an    intent    to   recommend      a   temporary        single-cell          assignment,

prison officials did not transfer him back to a single cell

until twelve days later.

      We conclude, however, that Germain fails to establish that

defendants      acted     with    deliberate       indifference.           During      this

time, Germain was never placed with another cellmate.                               Indeed,

the record indicates that defendants acted diligently following

Germain’s       apparent    suicide     attempt:         they    placed       him     under

observation;      evaluated       his   mental      health      the     following      day,

confirming that he was no longer a suicide risk; and put in

place a treatment plan, which provided an additional ninety-day

adjustment period before moving him to a double cell.                          In short,

Germain   has     failed    to    present    a     triable      issue    of    fact    that

defendants acted with deliberate indifference when keeping him

in a contingency cell while putting in place a treatment plan

for his anxiety.

                                         B.

       We next consider Germain’s argument that the district court

erred in granting defendants summary judgment on his claim that

the   conditions     in     his   contingency        cell    violated         the   Eighth

Amendment.        Germain    contends       that    he   should       survive       summary

                                         12
judgment on the objective prong of this claim because he has

provided (1) a sworn affidavit that he was deprived of food and

lost twenty-three pounds, and (2) a statement that his cell was

infested     with   bugs     and    had    an       inoperable      toilet   filled     with

human     waste.      According      to     Germain,         this    is    sufficient    to

establish an extreme deprivation of human needs and it is up to

the factfinder to determine whether these conditions actually

existed.

      Once      again,      however,       Germain         has    failed     to   provide

sufficient      evidence     to    allow        a    factfinder      to    conclude     that

defendants      acted    with      deliberate         indifference.          He   has    not

pointed    to   anything      in    the    record         that   demonstrates     that   he

notified defendants of the infestation or inoperable toilet in

his cell, or the purportedly resulting headaches.                            Cf. Rish v.

Johnson, 131 F.3d 1092, 1099 (4th Cir. 1997) (finding no direct

evidence that prison officials knew proximity to waste posed a

substantial risk of harm).                Likewise, there is no evidence that

he notified any of the named defendants that he was being denied

his   regular      meals,    or    that    any       of   the    named    defendants     was

responsible for denying him his regular meal. 5                           Because Germain


      5
       We also note that Germain’s medical records, the prison’s
daily event logs, and the prison’s observation logs fail to show
weight loss, complaints of insufficient nutrition, or denial of
meals.   The record does contain a sick call slip dated June 6,
2011, and received June 9, 2011, where Germain complained about
(Continued)
                                            13
has failed to present evidence establishing that defendants knew

of the purported deficient conditions of confinement or failed

to respond to his complaints, this claim must fail.



                                  III.

       For these reasons, we affirm the judgment of the district

court, except that we vacate its grant of summary judgment to

Sgt.   Smith   on   Germain’s   claim    that   Sgt.   Smith   acted   with

deliberate indifference to Germain’s suicide threat.            We remand

for further proceedings on that ground only.


                                                        AFFIRMED IN PART;
                                                         VACATED IN PART;
                                                             AND REMANDED




the lack of a high-calorie diet. J.A. 82. However, there is no
indication that any named defendant was aware of this complaint.
Moreover, the slip includes a notation that Germain was placed
on the high-calorie diet in December 2010, and Germain concedes
that he received his high-calorie bag on June 9, 2011.     Thus,
the record demonstrates that Germain’s only documented complaint
was promptly addressed.



                                   14
