                                  No. 95-2143



Paul Ferguson;                     *
                                   *
         Plaintiff-Appellant;      *
                                   *
         v.                        *
                                   *
Cape Girardeau County; Norman      *
Copeland, Sheriff, Cape            *
Girardeau County; Ripley   * Appeal from the United States
County; Nick Pepmiller;            * District Court for the
Harold Headly;                     * Eastern District of Missouri.
                                   *
        Defendants-Appellees;      *
                                   *
Irene X. Burghardt;                *
                                   *
                    Defendant;     *
                                   *
Log Cabin Realty/Century 21;       *
                                   *
          Defendant-Appellee.      *



                         Submitted:   March 15, 1996

                         Filed:   July 8, 1996


Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.



HEANEY, Circuit Judge.


     Paul Ferguson appeals the district court's order of summary judgment
and dismissal of all five counts of his suit alleging violations of 28
U.S.C. § 1983 and conversion.     We affirm in part and reverse in part.
                                  BACKGROUND


     On April 4, 1989, defendant Harold Headly, Deputy Sheriff for Ripley
County, and Bill Royce, a dispatcher of the City of Doniphan Police
Department, picked up the plaintiff, Paul Ferguson, in Florida, where he
had been arrested, and returned him to Missouri pursuant to a writ of
extradition.   Ferguson was incarcerated in the City of Doniphan Jail,
located within Ripley County, to await trial.      On May 17, 1989, at his
request, Ferguson was transferred to the Cape Girardeau County Jail.


     On April 22, 1991, Ferguson brought suit alleging that the conditions
of his pretrial confinement as well as certain actions taken during this
period were in violation of both federal and state law.       The first four
counts of his complaint allege deprivation of his constitutional rights in
violation of 28 U.S.C. § 1983.     These claims are based on the following
allegations:    1)   defendants   denied   Ferguson's   request   for   medical
treatment; 2) the conditions of his pretrial confinement in Cape Girardeau
County Jail constituted punishment in violation of the Due Process Clause;
3) Ferguson was denied access to a prison law library; and 4) Ferguson was
deprived of outside access resulting in monetary loss.    The fifth count of
the suit alleges that the foreclosure and sale of his home on July 24, 1989
constituted the state tort of conversion.      The defendants named in the
complaint are Ripley County; Nick Pepmiller, Sheriff of Ripley County;
Harold Headly; Cape Girardeau County; Norman Copeland, then Sheriff of Cape
Girardeau County; Irene Burghardt, the purchaser of Ferguson's foreclosed
home; Log Cabin Realty/Century 21,1 the real estate




     1
     Service was never properly obtained against Log Cabin Realty/
Century 21.

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agency responsible for carrying out the sale of Ferguson's home; and Ray
Segatti,2 a Century 21 agent.


        On September 10, 1993, the United States District Court for the
Eastern District of Missouri granted summary judgment in favor of Norman
Copeland and Cape Girardeau County.    On April 12, 1995, the district court
issued an order dismissing defendant Burghardt and granting summary
judgment to defendants Pepmiller, Headly, and Ripley County.    Ferguson now
appeals.


                                    ANALYSIS


A.      Count II: Pretrial Confinement in Cape Girardeau County Jail


        Count II of Ferguson's complaint alleges that the conditions in the
Cape Girardeau County Jail constituted punishment before a conviction in
violation of his rights to due process of law.    The district court ordered
summary judgment in favor of Cape Girardeau County and Norman Copeland on
two bases:       1) failure to allege that the conditions were pursuant to a
county policy or that Copeland had a role in creating or maintaining the
conditions, and 2) the pre-trial confinement did not constitute punishment.
We affirm the summary judgment on the latter ground.      Therefore, we need
not address what must be alleged regarding the direct responsibility of the
county or the county sheriff with respect to the conditions of the county
jail.       Nor do we need to address whether the district court should have
permitted the plaintiff to amend his complaint to allege any such requisite
facts.


        We review a district court's grant of summary judgment de novo.   See
United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.
1992).      Thus, the question before this court is




        2
     Plaintiff voluntarily dismissed his claim against Segatti on
August 30, 1994.

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whether the record, when viewed in the light most favorable to the
nonmoving party, shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).


     Specifically, Ferguson alleges that, upon his transfer to the Cape
Girardeau County Jail on May 17, 1989, he was confined to a 5-1/2 by 5-1/2
foot cell without a toilet or a sink and was forced to sleep on a mat on
the floor under bright lights, which were on twenty-four hours a day.
Ferguson also alleges that he was denied the privileges enjoyed by other
prisoners,    including     communication      with   other   prisoners     and    yard
privileges.      Although    there   is    some   factual   disputes   as   to    these
allegations, for the purposes of summary judgment, we take all facts and
reasonable inferences in the light most favorable to the nonmoving party.
See Ruby v. Springfield R-12 Public Sch. Dist., 76 F.3d 909, 911 (8th Cir.
1996).


     In response, the county submitted an affidavit of Robert C. Scott,
the Assistant Jail Administrator during the time of Ferguson's confinement.
In that affidavit, Scott asserted that Ferguson was confined upon his
arrival in the vestibule area of the jail, where he could remain under
constant observation, due to         concern for Ferguson's medical condition
(Ferguson had been complaining of chest pains) as well as the perceived
danger that Ferguson represented.         (Aff. of Robert C. Scott, ¶ 13).        On May
30th, Ferguson was permitted to move to a regular cell in the maximum
security wing of the jail.      Id. at ¶ 24.      Although there was no steel bunk
in the vestibule cell, Ferguson was provided with a standard mattress and
pillow.    Id. at ¶ 15.   Ferguson was allowed to use bathroom facilities upon
request.   Id. at ¶ 17.     Despite his complaint of the constant light, he was
observed sleeping ninety-three hours of the fourteen days spent in the
vestibule.    Id. at ¶ 21.     Ferguson was also allowed out of the vestibule
for various




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purposes approximately forty-nine hours over the fourteen-day period.           Id.
at ¶ 20.    These factual assertions are uncontradicted by the plaintiff.
Although the moving party has the burden of showing that there is no
genuine issue of fact, the nonmoving party may not rest on allegations, but
must set forth specific facts sufficient to raise a genuine issue for
trial.   See Trindle v. Caudell, 56 F.3d 966, 969 (8th Cir. 1995).


         Conditions   of    pretrial   confinement   are   impermissible   if   they
constitute punishment as determined by the due process standards of the
Fifth and Fourteenth Amendments.       See Bell v. Wolfish, 441 U.S. 520 (1979).
"[I]f a particular condition or restriction of pretrial detention is
reasonably related to a legitimate governmental objective, it does not,
without more, amount to `punishment.'"         Id. at 539.      In evaluating the
conditions, the court must look to a number of factors, including the size
of the detainee's living space, the length of the confinement, the amount
of time spent in the confined area each day, and the opportunity for
exercise.    See A.J. v. Kierst, 56 F.3d 849, 854-55 (8th Cir. 1995)
(citations omitted).       Ferguson alleges that he was confined to a space of
just over thirty square feet.      Although this figure raises the question of
impermissible pretrial confinement, see Campbell v. Cauthron, 623 F.2d 503,
506-07 (8th Cir. 1980), the totality of the circumstances--which include
the relative short duration of the confinement, the necessity to keep the
detainee under observation for both his medical condition as well as
general safety concerns, and the amount of time that he spent out of the
cell--supports the assertion of legitimate governmental interest, see Bell,
441 U.S. at 539, and therefore, does not constitute a violation of
Ferguson's due process rights.         Nor is the use of a floor mattress for
thirteen nights, when viewed in the totality of the circumstances, a
violation of Ferguson's due process rights.      Cf. Kierst, 56 F.3d at 855-56.
Thus, we affirm the district court's order of summary judgment on this
count.




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B.   Counts I, III & IV


     We also affirm the district court's order of summary judgment on
Counts I, III, and IV.   Although amendment of a complaint should be allowed
liberally to ensure that a case is decided on its merits,   Chestnut v. St.
Louis County, Mo., 656 F.2d 343, 349 (8th Cir. 1981), there is no absolute
right to amend.   Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989).
We review the district court's decision for an abuse of discretion.   Zenith
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971).    In this
case, Ferguson never asked the court for permission to amend.   Instead, in
response to the defendants' motion for summary judgment, Ferguson requested
that any dismissal be without prejudice to refiling.   While the failure to
make a formal motion to amend may not be preclusive, see McLaughlin v.
Anderson, 962 F.2d 187, 195 (2d Cir. 1992) ("the lack of a formal motion
to amend is not sufficient ground for a district court's dismissal without
leave to amend, so long as the plaintiff has made its willingness to amend
clear"), the plaintiff's clear willingness is not readily apparent from the
record.   Moreover, permission need not be granted after undue delay or
where amendment would be futile.   Foman v. Davis, 371 U.S. 178, 182 (1962).
In light of these considerations, we hold that the district court did not
abuse its discretion.


C.   Count V


     The district court dismissed Count V for lack of subject-matter
jurisdiction.   Although we concur with the district court as to the lack
of supplemental jurisdiction, as provided by 28 U.S.C. § 1367 (1994), the
question of diversity jurisdiction is more difficult given that the
plaintiff has asserted diversity of citizenship.        Complaint ¶¶ 4, 5.
Therefore, we remand this count to the district court for a finding of
jurisdictional facts.    See Osborn v. United States, 918 F.2d 724, 730 (8th
Cir. 1990).




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                                 CONCLUSION


     For the above-stated reasons, we affirm the district court's decision
with regard to Counts I through IV and remand plaintiff's claim as stated
in Count V of his complaint for further proceedings consistent with this
opinion.


     A true copy.


           Attest:


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




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