                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2429
                                   ___________

Frederick Lee Revels,                  *
                                       *
            Plaintiff/Appellant,       *
                                       *
      v.                               *
                                       *
Felix Vincenz, Superintendent; Dorn    *
Schuffman; Enrique Dos Santos;         *
Joseph F. Mangini,                     *
                                       *
            Defendants,                *
                                       *
Ralph Wimp, Dr.,                       *
                                       *
            Defendant/Appellee,        *   Appeal from the United States
                                       *   District Court for the
Max Teng,                              *   Western District of Missouri.
                                       *
            Defendant,                 *
                                       *
David Hunter,                          *
                                       *
            Defendant/Appellee,        *
                                       *
Mike Gordon; Judy Cohen,               *
                                       *
            Defendants,                *
                                       *
Linda Hollingsworth, also known as     *
Linda Schulte; David Neer,             *
                                       *
             Defendants/Appellees.    *
                                 ___________

                              Submitted: January 14, 2004
                                 Filed: August 27, 2004
                                  ___________

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

BYE, Circuit Judge.

       Frederick Revels is an involuntarily committed psychiatric patient at an
intermediate security facility. In this appeal, he argues the district court1 committed
three reversible errors in disposing of his 42 U.S.C. § 1983 claims. First, the court
entered summary judgment in favor of Linda Schulte with respect to Mr. Revels’s
claim she violated his Eighth Amendment and substantive due process rights by
denying him permission to use the restroom. Second, the district court granted
summary judgment in favor of Dr. David Hunter with respect to Mr. Revels’s claim
Dr. Hunter violated his First Amendment rights by retaliating against him for
engaging in protected speech. Finally, Mr. Revels appeals the court’s decision to
admit, during trial of his claims against Dr. Ralph Wimp and David Neer, testimony
he had heard voices in the past. We affirm.

                                           I

       On April 14, 2001, Security Aide Linda Schulte was supervising ten to twenty
patients who were forming the supper line in the hallway of Mr. Revels’s ward at
Fulton State Hospital. Mr. Revels had fallen asleep in a nearby reading room. The
noise in the hallway awoke him, and realizing it was time for supper, he hurried from

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

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the reading room to join the others in the back of the food line. Ms. Schulte was the
only supervisor in the area.

      When Mr. Revels joined the line, Ms. Schulte was occupied with an agitated
inmate she described as aggressive. Mr. Revels then felt a strong urge to urinate. He
began dancing around and asked Ms. Schulte for permission to use the restroom. She
denied his request, and almost immediately, he lost control of his bladder and rushed
around a corner to relieve himself. Mr. Revels admitted he began urinating even as
Ms. Schulte was responding to his request.

      Afterward, Ms. Schulte and Susan Hendricks, another staff member, took Mr.
Revels back to the ward. Two other staff members were present when Ms. Schulte
began complaining in front of Mr. Revels about the mess on the floor. She stated,
“This fool urinated on himself.” After investigating the incident, the Hospital
Superintendent dismissed Ms. Schulte, in part because of her handling of the incident.
However, the facility’s Personnel Advisory Board later reinstated her after finding
she had handled the situation according to Hospital policies.

       Dr. Hunter was the Fulton psychiatrist who supervised Mr. Revels’s medical
program. Mr. Revels alleged Dr. Hunter violated his First Amendment right to
engage in protected speech, by blocking reclassification opportunities and denying
him step-level increases, conditional releases, and placement in less-secure facilities
in retaliation for Mr. Revels’s filing grievances against Fulton staff members.

       Mr. Revels also claimed Dr. Wimp sexually assaulted him by performing an
unwanted rectal exam that caused an anal fissure. He also claimed David Neer, a
security aide at the hospital, forced him out of bed when he was injured and choked
him. At trial of these claims, counsel for Dr. Wimp and Mr. Neer asked Mr. Revels,
“And you admit that there were times in the past that you’ve heard voices?” Mr.



                                         -3-
Revels’s attorney objected on the ground the question assumed facts not in evidence,
and the judge overruled. Mr. Revels answered the question affirmatively.

      On appeal, Mr. Revels argues the district court erred in granting summary
judgement for Ms. Schulte and Dr. Hunter and in admitting Mr. Revel's testimony he
had heard voices in the past. We affirm in all respects.

                                           II

       We review summary judgment de novo, viewing the record in the light most
favorable to the non-moving party. Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d
1212, 1214 (8th Cir. 1999). Summary judgment is proper if there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of law.
See Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir. 1999); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

A.    Mr. Revels’s Eighth Amendment Claim

       Although an involuntarily committed patient of a state hospital is not a prisoner
per se, his confinement is subject to the same safety and security concerns as that of
a prisoner. Cf. Andrews v. Neer, 253 F.3d 1051, 1061 (8th Cir. 2001) (holding that
an excessive-force claim from an involuntarily committed state hospital patient
should be evaluated under the same standard as an excessive-force claim brought by
pretrial detainee). However, because an involuntarily committed psychiatric patient
is confined for treatment rather than incarcerated for the purpose of punishment
following conviction, the Eighth Amendment does not apply. See Neely v. Feinstein,
50 F.3d 1502, 1508 (9th Cir. 1995); see also Youngberg v. Romeo, 457 U.S. 307,
324-35 (1982) (concluding that an involuntarily committed patient has substantive
due process rights under the Fourteenth Amendment and the Eighth Amendment was
not the proper standard of liability); DeShaney v. Winnebago County Dep’t of Soc.

                                          -4-
Servs., 489 U.S. 189, 199 n.6 (1989) (“The State does not acquire the power to punish
with which the Eighth Amendment is concerned until after it has secured a formal
adjudication of guilt in accordance with due process of law.”). The rights of patients
in psychiatric hospitals more appropriately arise under the Fourteenth Amendment.
Neely, 50 F.3d at 1508.

      That being said, neither party in this case questioned the applicability of the
Eighth Amendment to Ms. Schulte’s conduct. Therefore, we will analyze Mr.
Revels’s claim as if he were a prisoner with standing to make an Eighth Amendment
claim, while acknowledging that his claim properly arises under the Fourteenth
Amendment.

       A prisoner alleging an Eighth Amendment violation must prove both an
objective and subjective element. See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
The defendant’s conduct must objectively rise to the level of a constitutional
violation, id., by depriving the plaintiff of the “minimal civilized measure of life’s
necessities,” Rhodes v. Chapman, 452 U.S. 337, 342 (1981). The defendant’s
conduct must also reflect a subjective state of mind evincing deliberate indifference
to the health or safety of the prisoner. Estelle v. Gamble, 429 U.S. 97, 104 (1977).
To establish deliberate indifference, the plaintiff must show the defendant was
substantially aware of but disregarded an excessive risk to inmate health or safety.
Farmer v. Brennan, 511 U.S. 825, 835 (1994).

      Viewed under this two-part standard, Mr. Revels’s claim fails as a matter of
law. First, the momentary deprivation of the right to use the bathroom, in the absence
of physical harm or a serious risk of contamination, does not rise to the level of an
Eighth Amendment violation. See Knop v. Johnson, 977 F.2d 996, 1013 (6th Cir.
1992) (holding that defendants’ being required to urinate occasionally in their cells
when officers were unavailable to take them to the toilet did not violate the Eighth
Amendment); Whitted v. Lazerson, No. 96 Civ. 2746(AGS), 1998 WL 259929, at *2

                                         -5-
(S.D.N.Y. May 21, 1998) (stating the alleged violation was not objectively serious
where the defendant civilian cook continually told the inmate assistant he had to wait
a few minutes to go to the toilet and the inmate ultimately urinated on himself after
waiting for an hour and a half). Mr. Revels was deprived of the opportunity to use
the toilet for only a few seconds before he lost control of his bladder. Ms. Schulte’s
conduct simply does not rise to the level of an Eighth Amendment violation.

       Second, Ms. Schulte did not act with the requisite state of mind to meet the
subjective component of an Eighth Amendment claim. We fail to see how delaying
Mr. Revels’s visit to the toilet for a few seconds reflects a deliberate indifference to
his health or safety. See Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990)
(holding one-month delay in providing medical treatment after complaints of leg pain
did not reflect deliberate indifference). Moreover, Mr. Revels lost bladder control
just after he uttered the request to Ms. Schulte who was occupied with the other
inmate. Under these circumstances, no reasonable person would find she had the
opportunity to discern, much less disregard, Mr. Revels’s crisis. Thus, Mr. Revels
failed to raise a triable issue as to either element of his Eighth Amendment claim.

      Even if Mr. Revels had standing to bring an Eighth Amendment claim, his
claim fails as a matter of law because Ms. Schulte’s actions never rose to the level of
a constitutional violation and she did not act with the required culpability.

B.    Mr. Revel’s Fourteenth Amendment Claim

       Next, Mr. Revels claims Ms. Schulte violated substantive due process by
unreasonably denying him the fundamental right to bodily integrity. To prevail on
such a claim, the plaintiff must generally show the defendant acted with deliberate
indifference to a constitutional right in a manner that shocks the conscience. Putnam,
332 F.3d at 548. Where the defendant did not have time for actual deliberation before
committing the wrongful act, however, the plaintiff must show the defendant acted

                                          -6-
with a degree of fault evincing malice or sadistic behavior. County of Sacramento v.
Lewis, 523 U.S. at 833, 852-53 (citing Whitley, 475 U.S. 312, 320-21 (1986)).

      Mr. Revels argues the court in Glaspy v. Malicoat held the opportunity to
urinate, under certain conditions, is a fundamental right subject to due process
protection as “a matter of bodily integrity.” 134 F.Supp.2d 890, 895 (W.D. Mich.
2001). Assuming for the sake or argument that we agree with Glaspy, Mr. Revel’s
claim still fails as a matter of law because, as we have already determined, Ms.
Schulte did not act with even deliberate indifference toward his welfare.

                                           II

        Dr. David Hunter was the Fulton psychiatrist who supervised Mr. Revels’s
medical program. Mr. Revels claims Dr. Hunter violated his First Amendment right
to free speech in retaliation for the grievances Mr. Revels filed against Fulton staff
members. Mr. Revels asserts Dr. Hunter blocked reclassification opportunities and
denied him step-level increases, conditional releases, and placement in less-secure
facilities.

       To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the
plaintiff must show (1) he engaged in a protected activity, (2) the government official
took adverse action against him that would chill a person of ordinary firmness from
continuing in the activity, and (3) the adverse action was motivated at least in part by
the exercise of the protected activity. Naucke v. City of Park Hills, 284 F.3d 923,
927-28 (8th Cir. 2002). In brief, the plaintiff must show the official took the adverse
action because the plaintiff engaged in the protected speech. See id. The causal
connection is generally a jury question, but it can provide a basis for summary
judgment when the “question is so free from doubt as to justify taking it from the
jury.” Id. at 928 (quoting Ricketts v. Columbia, 36 F.3d 775, 779 (8th Cir. 1994)).



                                          -7-
       The district court properly granted Dr. Hunter’s motion for summary judgment.
Under the third prong of a retaliation claim, the plaintiff needs to present evidence of
a causal connection between the constitutionally protected activity and the adverse
action. Id. Not only did Mr. Revels fail to present any evidence showing a retaliatory
motive, he actually admitted he could not say Dr. Hunter denied him any step-level
increases because of his grievances. Additionally, Mr. Revels acknowledged he
frequently disengaged from treatment, a factor in determining whether he deserved
the privileges he sought. Thus, the only evidence Mr. Revels presented suggests his
own conduct may have caused the denial of the privileges.

       Mr. Revels argues Dr. Hunter testified he told Mr. Revels he would not be
recommended for step-level increases if he kept filing baseless grievances. Evidence
of the statement, however, does not appear to be in the designated record. If such
evidence was presented, then the statement could permit the inference Dr. Hunter
denied Mr. Revels increases for a retaliatory reason. However, Mr. Revels’s own
testimony negates the inference. Mr. Revels testified he did not believe Dr. Hunter
denied him increases because of his filing of grievances.

       Moreover, Mr. Revels failed to present evidence Dr. Hunter took any adverse
action against him. On the contrary, Mr. Revels admitted he had not requested a
conditional release or an unconditional release since 1997. He also admitted he
frequently disengaged from his treatment, a fact which would disqualify him for the
privileges he sought. Without evidence he requested or was qualified for such
privileges, his bare allegations do not show he suffered any adverse action.

      Because Mr. Revels did not come forward with evidence showing Dr. Hunter
denied him privileges in retaliation for filing grievances, the district court properly
granted Dr. Hunter’s motion for summary judgment.




                                          -8-
                                          III

       Mr. Revels’s claims against two defendants survived summary judgment. He
claimed Dr. Wimp sexually assaulted him by performing an unwanted rectal exam
that caused an anal fissure. He also alleged Mr. Neer, a security aide at the hospital,
forced him out of bed when he was injured and choked him. The jury found for the
defendants.

       On cross examination, defense counsel asked Mr. Revels, “And you admit that
there were times in the past that you’ve heard voices?” Mr. Revels’s attorney
objected on the ground the question assumed facts not in evidence, and the judge
overruled. Mr. Revels answered the question affirmatively. On appeal, he argues the
district court erred for two reasons in its admission of the testimony. First, the
admission of evidence that he heard voices in the past was outside the scope of direct
examination. Second, the risk of unfair prejudice substantially outweighed the
probative value of the evidence.

        We normally review rulings regarding the admission of evidence for abuse of
discretion. See Andrews v. Neer, 253 F.3d 1052, 1063 (8th Cir. 2001). However, we
review for plain error when admitted evidence was objected to for one reason but
appealed for another. Cross v. Cleaver, 142 F.3d 1059, 1068-69 (8th Cir. 1998).
Because Mr. Revels appeals the evidence on grounds different from his objection at
trial, we apply the plain-error standard.

       Mr. Revels first argues the question went to matters outside the scope of direct
examination. “It is standard and proper,” however, “for a cross-examiner to delve
into matters which, although not mentioned on direct examination, bear on the
witness’s credibility.” United States v. Moore, 917 F.2d 215, 222 (6th Cir. 1993).
We have specifically approved the use of a witness’s mental condition to challenge
his credibility. See Andrews, 253 F.3d at 1062-63 (stating that counsel could use the

                                         -9-
witness’s status as an involuntarily committed schizophrenic in cross-examination of
the witness); see also United States v. Phibbs, 999 F.2d 1053, 1069-70 (6th Cir. 1993)
(concluding the district court did not abuse its discretion when it permitted defense
counsel to use the plaintiffs’ psychiatric records, as well as other indicia of their
mental capacity, to vigorously attack their credibility).

       Mr. Revels also contends the testimony’s likelihood of prejudice substantially
outweighed its probative value, in violation of Fed. R. Evid. 403. Where he alleged
facts that only he and the defendants could testify to, the credibility of each party and
his ability to discern and tell the truth carried great probative value not substantially
outweighed by the risk of unfair prejudice. Thus, the district court properly admitted
Mr. Revel’s testimony he had heard voices in the past.

                                           IV

      For the foregoing reasons, we affirm in all respects.
                      ______________________________




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