                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0189p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 WILLIAM SIM SPENCER,
                                                      -
                                                      -
                                                      -
                                                          No. 05-2562
          v.
                                                      ,
                                                       >
 MICHAEL J. BOUCHARD et al.,                          -
                             Defendants-Appellees. -
                                                     N
                      Appeal from the United States District Court
                      for the Eastern District of Michigan at Flint.
                    No. 03-40043—Paul V. Gadola, District Judge.
                                            Submitted: May 4, 2006
                                      Decided and Filed: June 6, 2006
                          Before: MOORE, COLE, and CLAY, Circuit Judges.
                                              _________________
                                                   COUNSEL
ON BRIEF: Keith J. Lerminiaux, OAKLAND COUNTY CORPORATION COUNSEL, Pontiac,
Michigan, for Appellees. William Sim Spencer, Ionia, Michigan, pro se.
                                              _________________
                                                  OPINION
                                              _________________
        KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant William Sim Spencer, a
Michigan state prisoner proceeding pro se, brought this civil rights action against     Defendants-
Appellees Michael J. Bouchard, Thomas Quisenberry, Snarey, and Wallace1 (collectively “the
defendants”), all officials with the Oakland County Sheriff’s Office. Spencer alleged various claims
under the First, Fourth, Eighth, and Fourteenth Amendments. After the magistrate judge
recommended granting dismissal or summary judgment to the defendants on all but one of Spencer’s
claims, the district court granted summary judgment on all of them. Spencer’s appeal has been
referred to a panel of the court pursuant to Sixth Circuit Rule 34(j)(1). Upon examination, we
unanimously agree that oral argument is not needed. FED. R. APP. P. 34(a).
       Because Spencer has offered sufficient evidence to create a genuine issue of material fact
with respect to his Eighth Amendment inadequate-shelter claim against Snarey and Wallace, we
REVERSE that part of the district court’s judgment. Because Spencer has failed to satisfy the

       1
           The full names of Snarey and Wallace are not in the record.


                                                          1
No. 05-2562           Spencer v. Bouchard et al.                                                Page 2


Prison Litigation Reform Act’s (“PLRA”) administrative exhaustion requirement with respect to his
First Amendment claim against Bouchard, Snarey, and Wallace, his Eighth Amendment inadequate-
shelter claim against Bouchard, and all claims against Quisenberry, we VACATE that part of the
judgment and instruct the district court instead to DISMISS the claims without prejudice. Because
Spencer has waived review of all other claims, we AFFIRM the balance of the judgment. We
REMAND for proceedings consistent with this opinion.
                                        I. BACKGROUND
        Spencer was a pretrial detainee at the Oakland County Jail in Pontiac, Michigan from
August 15, 2001 to February 4, 2002. In 2003, Spencer filed an action under 42 U.S.C. § 1983
against several officials in the Oakland County Sheriff’s Office, which operates the jail: Sheriff
Bouchard, Undersheriff Quisenberry, Lieutenant Snarey, and Captain Wallace. Spencer alleged that
the defendants violated the First Amendment by providing inadequate reading material; the Fourth
Amendment by opening his legal mail; the Eighth Amendment by maintaining overcrowded
conditions, denying out-of-cell exercise time, and failing to provide adequately warm and dry
shelter; and the Fourteenth Amendment by providing inadequate grievance procedures.
        The defendants moved for dismissal for failure to state a claim or, in the alternative,
summary judgment. 6 Joint Appendix (“J.A.”) at 384-414. The magistrate judge recommended that
all claims against Quisenberry and the First Amendment claim against Bouchard, Snarey, and
Wallace be dismissed for failure to exhaust the administrative remedies as required by the PLRA.
4 J.A. at 252-54, 260-61 (Report and Recommendation (“R&R”) at 5-7, 13-14). Proceeding to the
merits, the magistrate judge recommended that summary judgment be denied with respect to the
Eighth Amendment claim for inadequate shelter. 4 J.A. at 258 (R&R at 11). Finally, the magistrate
judge recommended the grant of summary judgment with respect to each of the remaining claims.
4 J.A. at 262 (R&R at 15). Spencer filed general objections to the magistrate judge’s adverse
recommendations. 7 J.A. at 465-67. The defendants filed an objection to the magistrate judge’s
recommendation on the Eighth Amendment inadequate-shelter claim, arguing, inter alia, that they
could not be held liable for the failure to act. 7 J.A. at 458-61.
       The district court rejected the magistrate judge’s recommendation regarding the Eighth
Amendment inadequate-shelter claim and reviewed no other aspect of the magistrate judge’s report.
The district court granted summary judgment to the defendants and dismissed the case with
prejudice. Spencer now appeals.
                                  II. SCOPE OF THE APPEAL
A. Objections to Magistrate Judge’s Report
         At the outset we must determine which, if any, claims to address on appeal. The magistrate
judge’s report included a notice requiring objections to be filed within ten days. 4 J.A. at 262 (R&R
at 15). A party who receives such notice yet fails timely to object is deemed to waive review of the
district court’s adoption of the magistrate judge’s recommendations. Mattox v. City of Forest Park,
183 F.3d 515, 519-20 (6th Cir. 1999); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (upholding the waiver rule as a valid
exercise of this court’s supervisory power, “at least when it incorporates clear notice to the litigants
and an opportunity to seek an extension of time for filing objections”). In the instant case, by
granting summary judgment to the defendants on all claims, the district court rejected the magistrate
judge’s recommendations (1) to dismiss all claims against Quisenberry for failure to exhaust under
the PLRA; (2) to dismiss the First Amendment claim against Bouchard, Snarey, and Wallace for
failure to exhaust under the PLRA; and (3) to deny summary judgment with respect to the Eighth
No. 05-2562           Spencer v. Bouchard et al.                                               Page 3


Amendment inadequate-shelter claim against Bouchard, Snarey, and Wallace. Therefore, Spencer
has not waived review of these claims.
        The district court did, however, adopt the rest of the magistrate judge’s report, so we must
assess whether Spencer satisfied the objection requirement for his other claims. Spencer filed
several objections, the first of which stated that “Plaintiff OBJECTS to the granting of summary
judgment in favor of the defendants regarding Plaintiff’s overcrowding Claim because the
Complaint, Exhibits, Depositions and Affidavits of record support that the relief requested by
Plaintiff regarding this issue should be GRANTED.” 7 J.A. at 466. Subsequent objections replaced
“overcrowding Claim” with “Cruel and Unusual Punishment/Confinement Claim,” “Due Process
Regarding the Grievance Procedure Claim,” and “Fourth Amendment Claims - Legal Mail,”
respectively. 7 J.A. at 466-67.
         Overly general objections do not satisfy the objection requirement. Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09 (6th
Cir. 1991). “The objections must be clear enough to enable the district court to discern those issues
that are dispositive and contentious.” Miller, 50 F.3d at 380. Spencer’s objections simply identified
the discrete claims for which the magistrate judge’s recommendations were adverse to Spencer and
then urged that they instead be resolved in his favor. We have held that “objections disput[ing] the
correctness of the magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to
be] in error” are too general. Id. Thus, we conclude that Spencer has waived review of all issues
other than the claims against Quisenberry and the First Amendment and Eighth Amendment
inadequate-shelter claims against Bouchard, Snarey, and Wallace.
B. PLRA Exhaustion
        Having determined that Spencer has preserved certain claims for review, we must next
address whether he has satisfied the requirements of the PLRA, which provides that “[n]o action
shall be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Oakland
County Jail provides a two-step grievance procedure in which the inmate first submits a written
complaint to the Lieutenant of Corrective Services and then appeals the decision to the Captain of
Corrective Services. 2 J.A. at 60. Spencer has attached documents indicating that he followed this
procedure. J.A. at 49-51, 57.
         Of course, it is not enough simply to follow the grievance procedure; in order to satisfy the
administrative exhaustion requirement, the content of the grievances must be adequate, too. First,
under our precedent a grievance must identify each defendant eventually sued. E.g., Curry v. Scott,
249 F.3d 493, 504-05 (6th Cir. 2001). Spencer’s grievances fail to identify (1) Quisenberry in the
context of any claims; (2) Bouchard, Snarey, or Wallace in the context of the First Amendment
claim; and (3) Bouchard in the context of the Eighth Amendment inadequate-shelter claim.
Accordingly, Spencer failed to exhaust these claims. We VACATE the district court’s grant of
summary judgment to Quisenberry on all claims; to Bouchard, Snarey, and Wallace on the First
Amendment claim; and to Bouchard on the Eighth Amendment inadequate-shelter claim. The
district court is instructed instead to DISMISS these claims without prejudice.
        One of Spencer’s grievances does, however, name Snarey and Wallace in the context of the
Eighth Amendment inadequate-shelter claim. We therefore proceed to the second requirement
regarding the content of grievances: “a prisoner must have alleged mistreatment or misconduct on
the part of the defendant” in his grievance. Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003). This
standard is not a particularly strict one:
No. 05-2562           Spencer v. Bouchard et al.                                                  Page 4


       In describing the alleged mistreatment or misconduct, . . . we would not require a
       prisoner’s grievance to allege a specific legal theory or facts that correspond to all
       the required elements of a particular legal theory. Rather, it is sufficient for a court
       to find that a prisoner’s [grievance] gave prison officials fair notice of the alleged
       mistreatment or misconduct that forms the basis of the constitutional or statutory
       claim made against a defendant in a prisoner’s complaint.
Id. This relaxed standard is consistent with the general practice of liberally construing pro se
prisoners’ filings. See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993); Boswell v. Mayer,
169 F.3d 384, 387 (6th Cir. 1999). Spencer’s grievance easily meets this burden, as it includes
details of disregard by Snarey and Wallace of the cold, wet conditions — the very facts that form
the basis of the Eighth Amendment inadequate-shelter claim in this suit. Based on the foregoing
analysis, we conclude that Spencer exhausted the available administrative remedies with respect to
his Eighth Amendment inadequate-shelter claim against Snarey and Wallace.
        Our conclusion means that Spencer’s complaint was “mixed,” i.e., it included both exhausted
and unexhausted claims. We are therefore confronted with an issue that has recently vexed this
court: when a prisoner submits a mixed complaint, do we apply a rule of partial exhaustion that
permits his exhausted claims to proceed or a rule of total exhaustion that requires the entire
complaint to be dismissed? We faced a similar situation in Hartsfield v. Vidor, 199 F.3d 305 (6th
Cir. 1999). There, the prisoner had exhausted his Eighth Amendment claim against three defendants
but had failed to exhaust his claim against two others. Id. at 309. We dismissed without prejudice
the unexhausted claims and reached the merits of the exhausted claims. Id. at 309-10. Of course,
we would have been unable to reach the merits of the exhausted claims under a total-exhaustion
regime, so a holding that a prisoner’s exhausted claims survive the dismissal of any unexhausted
claims was necessary to the result in Hartsfield.
        A panel of this court recently seized upon the implicit nature of this holding in deeming the
issue “an open question in this circuit” even after Hartsfield. Bey v. Johnson, 407 F.3d 801, 805 (6th
Cir. 2005), petition for cert. filed, 74 U.S.L.W. 3424 (U.S. Jan. 9, 2006) (No. 05-874). It then
purported to “definitively answer” the question by requiring the total dismissal of mixed complaints.
Id.; accord Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006). The Bey panel was apparently
unaware, however, that we had already explicitly reaffirmed Hartsfield’s implicit partial-exhaustion
holding two years before Bey was decided. In Burton v. Jones, we explained that “the Hartsfield
holding illustrates that a prisoner’s lawsuit, which alleges multiple claims against multiple
defendants, is not vulnerable to dismissal under § 1997e(a) simply because the prisoner has failed
to exhaust a particular claim as to a specific defendant.” 321 F.3d at 574 n.2. In other words, there
was no need for Bey to “definitively answer” the question, as Hartsfield and Burton, taken together,
had already done so.
         We note that the Supreme Court has granted certiorari to resolve the partial-/total-exhaustion
quandary. Williams v. Overton, — U.S. —, 126 S. Ct. 1463 (2006); Jones v. Bock, — U.S. —, 126
S. Ct. 1462 (2006). In the meantime, however, we have an obligation to decide the case before us.
Because Hartsfield and Burton were decided before Bey, we conclude that the partial-exhaustion
rule is the law of this circuit. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th
Cir. 1985); 6TH CIR. R. 206(c) (a later panel cannot overrule a prior panel’s published opinion).
        We now proceed to the merits of Spencer’s Eighth Amendment inadequate-shelter claim
against Snarey and Wallace.
No. 05-2562               Spencer v. Bouchard et al.                                                              Page 5


                                   III. EIGHTH AMENDMENT CLAIM
A. Standard of Review
        We review de novo a district court’s grant of summary judgment. McQueen v. Beecher
Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006). Summary judgment is “rendered . . . if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine issue of material fact exists if a
reasonable jury could return a verdict for the nonmovant. Leary v. Daeschner, 349 F.3d 888, 897
(6th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In making this
determination, we must view the facts and the inferences drawn therefrom in the light most favorable
to the nonmovant. Bell v. United States, 355 F.3d 387, 392 (6th Cir. 2004).
B. Merits
        Spencer’s claim is based on the conditions of his pretrial detention. The Eighth Amendment
forbids the infliction of “cruel and unusual punishments.” U.S. CONST. amend. VIII. Because the
Cruel and Unusual Punishments Clause “is concerned” with punishment by the state “after it has
secured a formal adjudication of guilt in accordance with due process2 of law,” Ingraham v. Wright,
430 U.S. 651, 671 n.40 (1977), it does not apply to pretrial detainees. See Bell v. Wolfish, 441 U.S.
520, 535 n.16 (1979). However, state pretrial detainees are shielded         from cruel and unusual
punishments by the Fourteenth Amendment’s Due Process Clause,3 e.g., Miller v. Calhoun County,
408 F.3d 803, 812 (6th Cir. 2005), which provides similar if not greater protections than the Cruel
and Unusual Punishments Clause, County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998);
Bell, 441 U.S. at 545. For the sake of simplicity, we refer to the Eighth Amendment in the following
discussion.
        “It is undisputed that the treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney,
509 U.S. 25, 31 (1993). The Eighth Amendment “imposes duties on [prison] officials, who must
provide humane conditions of confinement; [these] officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee
the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)). An Eighth Amendment conditions-of-confinement claim
has two elements. “First, the deprivation alleged must be, objectively, sufficiently serious; a prison
official’s act or omission must result in the denial of the minimal civilized measure of life’s
necessities.” Id. at 834 (internal 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.
(quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)).




         2
            We have on occasion spoken in terms of the Amendment itself (rather than simply the Clause) not applying
to pretrial detainees. See, e.g., Barber v. City of Salem, 953 F.2d 232, 235 (6th Cir. 1992). Such statements were too
broad, as the Excessive Bail Clause clearly applies to federal pretrial detainees, see, e.g., United States v. Salerno, 481
U.S. 739, 752 (1987), and probably applies to state pretrial detainees, too, see Schilb v. Kuebel, 404 U.S. 357, 365 (1972)
(assuming incorporation); 1 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 2.6(b) (2d ed. 1999) (“[L]ower court
rulings . . . have unhesitantly viewed [the Excessive Bail Clause] as applicable to state proceedings through the
Fourteenth Amendment.”).
         3
         Federal pretrial detainees are similarly protected by the Fifth Amendment’s Due Process Clause. Daniels v.
Woodside, 396 F.3d 730, 735 (6th Cir. 2005).
No. 05-2562              Spencer v. Bouchard et al.                                                          Page 6


         1. Sufficiently Serious Deprivation
        Spencer complains that the state provided inadequate shelter during his pretrial detention by
subjecting him to cold, wet conditions. Shelter is, of course, one of the basic needs enumerated in
Farmer, so the question is whether Spencer’s shelter was constitutionally inadequate. We have held
that the Eighth Amendment may be violated when prison officials provide inadequate clothing to
inmates required to go outside in the winter. Knop v. Johnson, 977 F.2d 996, 1012-13 (6th Cir.
1992), cert. denied, 507 U.S. 973 (1993). So, too, may the Eighth Amendment be violated when
prison officials let the cold inside, exposing inadequately protected inmates. See Wilson v. Seiter,
501 U.S. 294, 304 (1991) (noting that “a low cell temperature at night combined with a failure to
issue blankets” may establish an Eighth Amendment violation); Franklin v. Franklin, No. 97-4365,
2000 WL 687434, at *4 (6th Cir. May 16, 2000) (unpublished opinion). Because “[t]he
circumstances, nature, and duration of a deprivation . . . must be considered in determining whether
a constitutional violation has occurred,” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000), cert.
denied, 532 U.S. 1065 (2001), we turn now to the specifics of Spencer’s claim.
         Spencer was detained in cell I-R4 from September 1, 2001 to February 4, 2002, i.e., during
the fall and winter. 1 J.A. at 18 (Compl. ¶¶ 13, 19); 2 J.A. at 112-13 (Wilhelm Dep. ¶ 6). For more
than ninety days of this period, he had to sleep on a mattress on the floor due to overcrowding. 1
J.A. at 20 (Compl. ¶ 34); 2 J.A. at 115 (Wilhelm Dep. ¶ 21). Spencer’s cell block was “very cold,”
prompting the complaints of other inmates. 2 J.A. at 115 (Wilhelm Dep. ¶¶ 12, 18). It was
particularly cold at the end of the cell block where Spencer’s cell was located. 2 J.A. at 115
(Wilhelm Dep. ¶ 20). Although it was cold enough for the officers to wear their winter coats
indoors, Spencer and the other inmates were dressed only in their standard jumpsuits. 1 J.A. at 20
(Compl. ¶ 40), 35 (Spencer Aff. ¶ 25). Worse yet, whenever it rained or snowed, water leaked “real
bad” through the ceiling above Spencer’s mattress. 2 J.A. at 115 (Wilhelm Dep. ¶ 22). The leaks
caused the area where Spencer slept to be flooded. 1 J.A. at 20 (Compl. ¶ 35), 42 (Spencer Aff.
¶ 57).
        Although Spencer’s evidence is sufficient to conclude that it was cold inside his cell, there
is some question as to just how cold it was.4 We observe, however, that Spencer’s evidence is also
sufficient to conclude that he lived in cold temperatures continuously for several months (including
all of December and January), subject only to the occasional relief of an unseasonably warm day.
By way of comparison, the Knop inmates experienced more direct contact with the cold when they
were forced to go outdoors without adequate clothing, but this exposure obviously was not
continuous; and Franklin was continuously exposed to “close to freezing” temperatures inside his
cell, but for “only” twenty-two days. Franklin, 2000 WL 687434, at *1, *4. Because even “modest
deprivations can . . . form the objective basis of a violation . . . if such deprivations are lengthy or
ongoing,” Johnson, 217 F.3d at 732, we have little trouble concluding that any doubts about the
severity of the cold in the instant case are compensated by the duration of Spencer’s exposure to it.
And this is before we add to the scales the evidence that large quantities of water leaked onto
Spencer’s bed whenever it rained or snowed. Thus, Spencer has presented sufficient evidence to
create a genuine issue of material fact with respect to the objective component of his Eighth
Amendment claim.
         2. Deliberate Indifference
        The deliberate-indifference requirement is satisfied “only if [the official] knows that inmates
face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures


         4
          Spencer alleges that ice formed on the walls, 1 J.A. at 20 (Compl. ¶ 41), but his complaint was not verified
and he has offered no evidence to support this allegation.
No. 05-2562                Spencer v. Bouchard et al.                                                                Page 7


to abate it.” Farmer, 511 U.S. at 847. The Supreme Court has explicitly acknowledged that “a
factfinder may conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious.” Id. at 842. The instant case would seem to be the perfect candidate for imputing
knowledge based on the obviousness of the risk, for two reasons having to do with salient features
of the particular risk at issue here. First, unlike conditions that can be hidden (such as the threat of
violence from another inmate), the fact that cold, wet conditions existed would have been obvious
to anyone in the vicinity. (Snarey and Wallace might have been ignorant of the risk if they had
never set foot in the area, but there is no indication in the record that they were so derelict in their
duties.) Second, although jail officials might be unaware (due to unfamiliarity) that certain
conditions are dangerous, the fact that exposure to cold, wet conditions for months at a time is a
substantial risk is so obvious as to merit no further discussion.
        We need not rely solely on the obviousness of the risk, however, because Spencer has offered
much evidence in support of the deliberate-indifference element. Snarey and Wallace were among
the officers seen wearing their winter coats indoors. 1 J.A. at 20 (Compl. ¶ 40), 35 (Spencer Aff.
¶ 25). They also personally received complaints about the cold, wet conditions from Spencer and
other inmates. 2 J.A. at 114, 115-16 (Wilhelm Dep. ¶¶ 12, 23-26). Therefore, Snarey and Wallace
obviously knew “that inmates face[d] a substantial risk of serious harm.” Farmer, 511 U.S. at 847.
The very fact that the cold, wet conditions persisted for months demonstrates that the two officers
“disregard[ed] th[e] risk by failing to take reasonable measures to abate it,” id., such as by providing
adequate clothing and blankets, fixing the leaks, bringing in heaters, or moving the inmates to other
quarters. In fact, Snarey and Wallace went the extra step of actively interfering with the inmates’
own arguably reasonable attempts to abate the risk. First, when they received complaints about the
cold, the two officers responded by conducting “shake downs” and confiscating extra blankets that
any inmates had obtained on their own. 1 J.A. at 20 (Compl. ¶¶ 44-45); 2 J.A. at 114 (Wilhelm Dep.
¶ 12). Second, Snarey and Wallace repeatedly tore down “awnings” fashioned out of garbage bags
that Spencer and his cellmates had attached to the ceiling in an attempt to divert the leaks away from
Spencer’s bed. 1 J.A. at 20 (Compl. ¶¶ 36-37), 42 (Spencer Aff. ¶ 57); 2 J.A. at 115-16 (Wilhelm
Dep. ¶¶ 22-25). The officers’ obstruction of the inmates’ attempts to help themselves apparently
served no penological purpose, as Snarey once said to Spencer while tearing down an awning, “It’s
your own damn fault you [sic] in here so deal with it!” 2 J.A. at 116 (Wilhelm Dep. ¶ 26). Thus,
we conclude that Spencer has offered sufficient evidence of deliberate indifference to survive
summary judgment.
                                                          * * *
        The defendants press only one argument in urging us to affirm the district court on this
claim: “supervisory liability under § 1983 cannot be based on a mere failure to act.” Appellee Br.
at 17. This proposition is, of course, true. See, e.g., Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir.
2002) (“Supervisory liability under § 1983 cannot be based upon a mere failure to act but must be
based upon active unconstitutional behavior.”). Yet the defendants’ reliance on it here is misplaced,
as Spencer’s claim is based on the active unconstitutional conduct of Snarey and 5Wallace themselves
rather than on their supervision of others engaging in unconstitutional conduct. In fact, there is no
indication in the record that Snarey and Wallace actually supervised anybody at all. The oddity of
invoking the obviously inapplicable failure-to-act doctrine here leads us to believe that the
defendants understand the doctrine to reach beyond supervisors to direct actors, too. This reflects
a serious misunderstanding of Eighth Amendment law, which we aim to correct.



         5
           A failure to act also does not give rise to § 1983 liability for state-created-danger claims, see, e.g., Cartwright
v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003) (“[F]ailure to act is not an affirmative act under the
state-created danger theory.”), but Spencer’s claim is not premised on this doctrine.
No. 05-2562                Spencer v. Bouchard et al.                                                            Page 8


         The phrase “failure to act” has a lay meaning; colloquially, a “failure to act” is an omission.
Yet the phrase is also a legal term of art that means the absence of state action, which is required for
most constitutional claims. A colloquial “failure to act” (i.e., an omission) often will translate into
a legal “failure to act” (i.e., the absence of the element of state action). This equivalence is precisely
what the defendants are attempting to establish. According to the defendants, they colloquially
failed to act by not addressing the jail’s wet, cold conditions, so they also legally failed to act and
therefore are not liable.
        What the defendants miss, however, is that in the prison context, an omission often is state
action, which means that a colloquial “failure to act” often is not a legal “failure to act.” As the
Supreme Court has explained, “when the State by the affirmative exercise of its power so restrains
an individual’s liberty that it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable
safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the
Due Process Clause.” DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200
(1989) (emphases added); see also Farmer, 511 U.S. 832 (explaining that the Eighth Amendment
“imposes duties on [prison] officials, who must provide humane conditions of confinement; [these]
officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and
must ‘take reasonable measures to guarantee the safety of the inmates.’” (quoting Hudson v. Palmer,
468 U.S. 517, 526-27 (1984))). The obligation to “provide” these basic needs would have no
meaning if a prison official could fail to provide them and then evade liability simply by pleading
that he “failed to act.” That is why the Supreme Court has explicitly stated  that a prisoner’s Eighth
Amendment claim may be based on “a prison official’s act or omission.”6 Farmer, 511 U.S. at 834
(emphasis added); see also id. at 836 (discussing “acting or failing to act with deliberate
indifference” (emphasis added)). Thus, it is clear that Spencer’s Eighth Amendment claim may
properly be premised on the defendants’ failure to provide adequate shelter.
                                                IV. CONCLUSION
        For the reasons set forth above, we REVERSE in part, VACATE in part, and AFFIRM in
part the district court’s order granting summary judgment to the defendants and REMAND for
proceedings consistent with this opinion.




        6
            Farmer itself involved a quintessential failure to act: the “failure to prevent harm.” 511 U.S. at 834.
