                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2410
                                   ___________

Clayton James Hanks,                    *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
David Prachar, Jail Administrator;      *
Brad Kenney; Penny Wheatman, and        * [PUBLISHED]
numerous St. Louis County,              *
Minnesota, Jail staff,                  *
                                        *
            Defendants - Appellees.     *
                                   ___________

                             Submitted: July 5, 2006
                                Filed: August 4, 2006
                                 ___________

Before ARNOLD, BYE, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Former Minnesota inmate Clayton James Hanks appeals the district court’s
adverse grant of summary judgment in his 42 U.S.C. § 1983 action. Hanks sued for
injunctive relief and damages against St. Louis County Jail (Jail) Administrator David
Prachar, Brad Kenney, and Penny Wheatman. He claimed Eighth Amendment and
due process violations based on incidents that he alleged occurred when he was a
pretrial detainee in 1998 and 1999: he was placed in four-point restraints, chained
to a wall in a “rubber room,” forced to shower in waist chains and shackles, and
denied hearings before being punished. He also alleged that he pleaded guilty to then
pending criminal charges only to escape the abuse.

       We conclude that the district court erred by ignoring Hanks’s request, in his
preservice challenge to the denial of appointed counsel, for permission to resubmit
his complaint with a correction as to the capacity in which he was suing defendants.
Cf. Thornton v. Phillips County, Ark., 240 F.3d 728, 729 (8th Cir. 2001) (per curiam)
(while original complaint was subject to dismissal for failure to state claim, plaintiff’s
objections to magistrate’s report should have been treated as motion for leave to
amend complaint). We further conclude that it was an abuse of discretion to deny
Hanks’s subsequent motion for leave to amend. As one reason for the denial, the
court cited prejudice to defendants from the delay, but defendants--who on appeal
indicate they were not served with the motion to amend--were not directed to respond
to the motion, and they readily admit that Hanks had sued them in their individual
capacities in another lawsuit filed around the same time. See Roberson v. Hayti
Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001) (standard of review; under liberal
amendment policy, delay alone is not reason to deny leave, and burden of proving
prejudice is on party opposing amendment).

       We agree with the district court that Hanks’s requests for injunctive relief are
moot because he is no longer incarcerated at the Jail, see Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985), and that the capable-of-repetition-yet-evading-review
exception does not apply here, see Randolph v. Rodgers, 170 F.3d 850, 856 n.7 (8th
Cir. 1999) (discussing exception).

      As to the damages claims, however, we find that summary judgment was
improperly granted. See Beck v. Skon, 253 F.3d 330, 332-33 (8th Cir. 2001)
(standard of review). Prachar’s affidavit and the Jail records--which support many
of Hanks’s verified complaint allegations, see Roberson, 241 F.3d at 994-95 (verified
complaint is equivalent of affidavit for summary judgment purposes)--create a

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genuine issue of material fact as to whether defendants punished Hanks (age 17
during most of the period at issue) by using one- to four-point restraints for long
intervals when he was also locked down, and by periodically confining him in the
padded unit. See Bell v. Wolfish, 441 U.S. 520, 535-38 (1979) (pretrial detainees
may be subjected to restrictions so long as they do not amount to punishment; absent
showing of express intent to punish, determination generally turns on whether
alternative purpose to which restriction may rationally be connected is assignable for
it, and whether it appears excessive in relation to that purpose); A.J. by L.B. v. Kierst,
56 F.3d 849, 854 (8th Cir. 1995) (pretrial detainees’ conditions-of-confinement
claims come under more protective Fourteenth Amendment; due process standard
applied to juvenile pretrial detainees should be even more liberally construed).
Incidents of property destruction are arguably constitutionally valid reasons for
restraining Hanks for short periods when he was already locked down, to prevent
further damage. See Bell, 441 U.S. at 540 (steps to maintain security and order do not
amount to unconstitutional punishment). But long periods of in-cell restraints would
not be justified by such property destruction, by the staff’s fears of Hanks due to his
mere threats, or by Hanks’s improper and excessive phone calls. See id. at 539 &
n.20 (if restriction or condition is not reasonably related to legitimate goal, court
permissibly may infer that purpose is punishment, and retribution and deterrence are
not legitimate nonpunitive government objectives). Finally, the Jail’s restraint policy
on its face is consistent with the standards announced in Bell, but there are
trialworthy issues as to the application of the policy to Hanks.

       We agree with Hanks that Heck v. Humphrey, 512 U.S. 477 (1994), likely did
not apply, given that he had already served his sentence on the 1998 charges when he
filed the instant lawsuit, see Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th
Cir. 2004) (suggesting Heck does not apply when plaintiff is no longer in custody for
offense); and that Sandin v. Conner, 515 U.S. 472 (1995), does not apply to pretrial
detainees, see Surprenant v. Rivas, 424 F.3d 5, 17 (1st Cir. 2005). While the record
shows that Hanks either waived a hearing or pleaded guilty when charged with

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disciplinary offenses, it does not reveal what process was provided when the
decisions were made to otherwise keep him in restraints.

      Accordingly, we affirm the grant of summary judgment on the claims for
injunctive relief, we reverse the grant of summary judgment on the claims for
damages, and we remand for further proceedings consistent with this opinion.
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