                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 16-1046
                          ___________________________

                  Fineola Ingram; Justin Simmons; Brian Boykin

                        lllllllllllllllllllll Plaintiffs - Appellants

                                             v.

                 Cole County; Sheriff Greg White; John Wheeler

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                           Submitted: September 22, 2016
                              Filed: January 17, 2017
                                  ____________

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
                              ____________

SMITH, Circuit Judge.

      The laundry policy at the Cole County Detention Center leaves pretrial
detainees naked, with only a bed sheet and a blanket for cover, every four nights for
women and every two-to-three nights for men. During this time, guards and cellmates
may see the detainees naked. Because this plausibly amounts to unconstitutional
punishment, we reverse the district court’s dismissal of the plaintiffs’ complaint.
                                  I. Background
      The plaintiffs were detainees at the Cole County Detention Center (“Jail”).
Fineola Ingram was detained for 85 days beginning in November 2013. Justin
Simmons was detained from April–September 2013 and again from April–July 2015.
Brian Boykin was detained from March 2015 through at least July 2015, when this
suit was filed.1

       Jail policy prohibits detainees from wearing their own clothes. Instead, the jail
gives each detainee one set of clothes: underwear, undershirt, pants, outershirt, socks,
and shoes. Female detainees also get a bra. Female detainees’ clothes are washed
every four days; male detainees’ clothes are washed every two-to-three days. While
this set of clothes is being washed, detainees are not provided substitute garments.
They are, however, given a bed sheet and a blanket. Jail staff usually does the laundry
at night and returns the clothes the following morning. This takes about seven hours.
The cells have windows that, per jail policy, may not be covered. So during this time,
jail guards and cellmates may see the detainees unclothed if not concealed by their
bedding. Sometimes male guards return clothes to female detainees and female guards
return clothes to male detainees.

       The plaintiffs sued in July 2015 as two putative classes: current detainees and
former ones. They alleged that the laundry policy violates the Eighth and Fourteenth
Amendments to the United States Constitution and corresponding provisions of the
Missouri Constitution. They sought a temporary restraining order and a permanent
injunction against Cole County, Sheriff Greg White, and Chief Deputy John Wheeler,
and they sought damages against White and Wheeler. The district court denied the
request for a restraining order and set the preliminary injunction for a hearing. The

      1
       The plaintiffs’ complaint uses “detainees” to mean “pretrial detainees and
inmates.” The district court, though, addressed the plaintiffs as “pretrial detainees”
and therefore analyzed their claims under the Fourteenth Amendment rather than the
Eighth Amendment. We follow the district court’s path.

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parties held depositions, and the defendants produced limited documents. The
defendants moved to dismiss in late July 2015.

       The court ultimately cancelled the injunction hearing and granted the dismissal
motion. It held that the plaintiffs alleged “no more than minimal deprivation.”
Because the laundry was being done at night, the court observed, “[d]etainees are
sleeping in the nude, not going about their activities during the waking part of the day
in the nude. Furthermore, detainees are issued a sheet and a blanket . . . and may cover
themselves with sheet and blanket if they wish.” The court also noted that the
plaintiffs have no general right not to be seen by guards of the opposite sex. It
therefore concluded that “[t]he laundry policy at issue here creates no combination of
factors that establish a constitutional violation.” The court also identified cleanliness
and hygiene as a legitimate purpose for the laundry policy. And even if the policy had
no valid penological purpose, the court noted, that alone would not make it
unconstitutional—the focus is on the totality of the circumstances. The court then
granted qualified immunity to the individual defendants because the plaintiffs had not
alleged an underlying constitutional violation.

       The plaintiffs moved to set aside the judgment and for leave to file an amended
complaint. The court denied that motion because the plaintiffs’ proposed amended
complaint did not add any allegations based on new evidence—that is, evidence
unavailable before the court ruled on the motion to dismiss. The plaintiffs now appeal
the dismissal and the denial of their motion to set aside the judgment. Because we
reverse the district court’s dismissal, we do not review its refusal to set aside the
judgment in favor of amendment.

                                       II. Discussion
       We review the dismissal de novo. Braden v. Wal-Mart Stores, Inc., 588 F.3d
585, 591 (8th Cir. 2009). To survive a motion to dismiss, the plaintiffs must allege
sufficient facts to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.

                                            -3-
662, 678 (2009). They must show more than a sheer possibility of ultimate success,
but they need not establish a probability of it. Id. A complaint therefore may proceed
even if a savvy judge thinks ultimate success is unlikely. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007).

       In evaluating the constitutionality of pretrial-detention conditions, “the proper
inquiry is whether those conditions amount to punishment of the detainee.” Bell v.
Wolfish, 441 U.S. 520, 535 (1979). The Due Process Clause prohibits any punishment
before someone is adjudicated guilty. Id. We must first ask whether a given imposition
is of “a de minimis level . . . with which the Constitution is not concerned.” Id. at 539
n.21 (quoting Ingraham v. Wright, 430 U.S. 651, 674 (1977)). Then, if the imposition
is of constitutional concern, the second question is whether it “amounts to
‘punishment’ in the constitutional sense.” Id. at 537.

       This second question—whether there is punishment in the constitutional
sense—arises in pretrial detainee cases because detention always involves some loss
of freedom and of life’s ordinary comforts. Id. Yet “the Government concededly may
detain [someone] to ensure his presence at trial and may subject him to the restrictions
and conditions of the detention facility so long as those conditions and restrictions do
not amount to punishment.” Id. at 536–37. The relationship of the condition or
restriction to nonpunitive government purposes is key. If a pretrial-detention condition
or restriction “is reasonably related to a legitimate governmental objective, it does not,
without more, amount to ‘punishment.’” Id. at 539. But if it “is not reasonably related
to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer
that the purpose of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.” Id.


       The defendants contend, relying on Butler v. Fletcher, 465 F.3d 340 (8th Cir.
2006), that Bell does not apply and that all conditions-of-confinement claims are
tested for deliberate indifference. The deliberate-indifference standard examines

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whether the state deprived the detainee of “the minimal civilized measure of life’s
necessities” and knowingly disregarded an excessive safety risk created by that
deprivation. Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). Butler indeed purported to “hold that deliberate
indifference is the appropriate standard of culpability for all claims that prison
officials failed to provide pretrial detainees with adequate food, clothing, shelter,
medical care, and reasonable safety.” 465 F.3d at 345. We decline, however, to depart
from Bell.


       First, Butler was a medical-care case, so its statement about food, clothing, and
shelter claims is dictum. See John Morrell & Co. v. Local Union 304A of the United
Food & Commercial Workers, AFL–CIO, 913 F.2d 544, 550 (8th Cir. 1990) (“We
need not follow dicta . . . .). Second, our cases often apply Bell’s punishment standard
to prison-conditions claims. See, e.g., Smith v. Copeland, 87 F.3d 265, 268 (8th Cir.
1996) (overflowing toilet). And third, the Supreme Court recently reaffirmed, albeit
in “considered dict[um],” McDonough v. Anoka County, 799 F.3d 931, 942 (8th Cir.
2015), that Bell remains the standard for evaluating prison conditions for pretrial
detainees. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). In Kingsley, the
Court addressed whether an excessive-force plaintiff must prove only that the force
used was objectively unreasonable, or must also prove that the officer knew that it
was. Id. In holding that only objective unreasonableness is required, the Court relied
on Bell, which it construed as applying an objective standard “to evaluate a variety of
prison conditions, including a prison’s practice of double-bunking.” Id. Bell, then,
remains the standard in conditions cases like this one.


       Prisons must provide detainees with basic necessities, including clothing. Green
v. Baron, 879 F.2d 305, 309 (8th Cir. 1989). But “[a] minimal deprivation does not
violate the Constitution.” Id. Temporary discomfort alone is not enough. See id. at
310. Is going without clothing every few nights, while having a blanket and a bed

                                          -5-
sheet for cover, more than a de minimis imposition? We have no prior cases
addressing the precise question. In our cases, the duration of the alleged deprivation
varies, and there is no magic moment when the clock or calendar converts a condition
of confinement into a constitutionally significant event. Beaulieu v. Ludeman held that
24 hours in unsanitary conditions is “too short a time to constitute a due process
violation.” 690 F.3d 1017, 1045 (8th Cir. 2012). Giving a detainee one roll of toilet
paper per week, even though he must wait 30 minutes to wash himself in the shower
after the roll runs out, does not violate the Constitution. Stickley v. Byrd, 703 F.3d
421, 424 (8th Cir. 2013). And four days in a cell with the stench of one’s own feces
“do[es] not rise to a level of constitutional significance.” Smith, 87 F.3d at 268.


       Clothing-deprivation cases usually turn on the reason for the deprivation.
Twelve hours naked in solitary with no penological purpose is enough to “justify a
factual finding that [the inmate] has indeed been deprived of his constitutional rights.”
Porth v. Farrier, 934 F.2d 154, 156 (8th Cir. 1991). Keeping a non-suicidal and non-
dangerous prisoner in his underwear for five days “serve[s] no justifiable penological
objective and [is therefore] a punitive measure.” Rodgers v. Thomas, 879 F.2d 380,
384 (8th Cir. 1989). Fourteen days in solitary with only undershorts and a mattress,
if unrelated to security, may also be punishment. Maxwell v. Mason, 668 F.2d 361,
363 (8th Cir. 1981).2


      The reason for the deprivation may make its duration acceptable. Nine days in
lockdown in boxer shorts is not punishment when the lack of clothing was an
oversight and the prisoner apparently never requested more. Rust v. Grammer, 858
F.2d 411, 412, 414 (8th Cir. 1988). And even several weeks in unclothed


      2
       Because Porth and Rodgers were Eighth Amendment cases, the punishment
issue was not dispositive, as it is here. See Rodgers, 879 F.2d at 384 (condition not
unconstitutional just because it serves no valid penological purpose).

                                          -6-
psychological treatment is not excessive if reasonably related to a legitimate
governmental objective. Green, 879 F.2d at 308, 310.


      In this case, the detainees’ outer garments and underwear are taken for
laundering overnight at least twice—and sometimes three times—a week. During this
time, they may be exposed to cellmates and guards when not covered by their
bedding. They cannot block their cell windows. The defendants argue that these facts
present “only a de minimis discomfort which is a necessary consequence of
detention.” We disagree.


        We conclude that this practice constitutes more than a de minimis deprivation.
Of course “[l]oss of freedom of choice and privacy are inherent incidents of [prison]
confinement.” Bell, 441 U.S. at 537. “And the fact that such detention interferes with
the detainee’s understandable desire to live as comfortably as possible and with as
little restraint as possible during confinement does not convert the conditions or
restrictions of detention into ‘punishment.’” Id. Even four days in a cell with one’s
own feces, for example, may be de minimis despite the constitutional interest in
sanitary conditions. Smith, 87 F.3d at 268. But the distinguishing fact here is
frequency. Each deprivation is not exceedingly long, but the deprivations are
repetitive and are expected to last the full duration of confinement. See Green, 879
F.2d at 309 (duration of deprivation matters). And while there is “no general right not
to be seen naked by guards of the opposite sex,” Hill v. McKinley, 311 F.3d 899, 909
(8th Cir. 2002), and a detainee’s expectation of privacy is “of a diminished scope,”
Bell, 441 U.S. at 557, detainees are still entitled to clothing.


       Because the laundry policy’s imposition is more than de minimis, we ask
whether it is reasonably related to a legitimate governmental purpose. Id. The
defendants have not asserted one. The district court, reviewing the jail regulations
cited by the plaintiffs, concluded that the policy promoted cleanliness and hygiene. A

                                         -7-
policy of cleanliness, though, does not explain why the jail is unable to stock and
wash enough clothes to avoid extended periods without clothing on a more or less
permanent basis. Because the record reveals no legitimate objective behind this policy,
it plausibly amounts to unconstitutional punishment.


        The district court also noted that even if “the policy could serve no valid
penological purpose, such conclusion alone would not make it unconstitutional.” The
district court is correct under the Eighth Amendment cases it cited. But this is not an
Eighth Amendment case—it is, as framed by the district court, a pretrial detainee case
under Bell. And under Bell, “if a restriction or condition is not reasonably related to
a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that
the purpose of the governmental action is punishment that may not constitutionally
be inflicted on detainees qua detainees.” 441 U.S. at 539.


       Because the plaintiffs have alleged more than a de minimis imposition that is
not reasonably related to a legitimate governmental purpose, the district court erred
in dismissing their complaint. And because the district court based its qualified-
immunity ruling on the perceived lack of a constitutional violation, this too was error.


                                     III. Conclusion
       Accordingly, we reverse the dismissal and remand for further proceedings.




MURPHY, Circuit Judge, concurring in part and concurring in the judgment.


       I concur in the court's well reasoned analysis of the pretrial detainees' claims but
write separately to address the claims of the convicted prisoners. While the district

                                           -8-
court addressed all plaintiffs as pretrial detainees, the complaint and briefs make clear
that plaintiffs also include convicted prisoners.


       Claims by convicted prisoners are analyzed under the Eighth Amendment. See
Hott v. Hennepin Cty., 260 F.3d 901, 905 (8th Cir. 2001). To state an Eighth
Amendment claim, "[a] prisoner must allege both that a deprivation of rights is
'objectively, sufficiently serious,' and that a state official is deliberately indifferent to
inmate health or safety." Zink v. Lombardi, 783 F.3d 1089, 1107 (8th Cir. 2015) (en
banc) (per curiam) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A
deprivation is serious enough to satisfy the objective element only if it denies the
prisoner "the minimal civilized measure of life's necessities." Rhodes v. Chapman,
452 U.S. 337, 347 (1981).


      The "length of time the prisoner was subjected to the harsh confinement" is a
"crucial factor" in determining whether a practice deprives a prisoner of life's
necessities. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989); see also Hutto v.
Finney, 437 U.S. 678, 686–87 (1978). Deprivations of clothing may violate the
Eighth Amendment, but not always. Rodgers v. Thomas, 879 F.2d 380, 384 (8th Cir.
1989).


      Here, plaintiffs allege that jail officials have deprived them of clean clothing
overnight between one and three times a week. They are sometimes left with only a
bed sheet and blanket which are only intermittently washed. In the meantime they are
not allowed to cover their cell windows and can be seen naked without their
permission.


      This claim is sufficient to satisfy the Eighth Amendment's objective component.
The responsible jail officials would have known this practice caused humiliation to

                                            -9-
inmates. The prisoners have alleged sufficient facts to state a claim for relief against
the responsible officials.


      For these reasons I concur in the court's reversal of the dismissal of this action.
                        ______________________________




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