                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a0713n.06

                                                 No. 10-3100
                                                                                                     FILED
                               UNITED STATES COURT OF APPEALS                                   Jul 03, 2012
                                    FOR THE SIXTH CIRCUIT
                                                                                         LEONARD GREEN, Clerk

ALAN FRANCIS,                                       :
                                                    :
        Plaintiff-Appellant,                        :
                                                    :
                                                    :                ON APPEAL FROM THE
v.                                                  :                UNITED STATES DISTRICT
                                                    :                COURT FOR THE NORTHERN
                                                    :                DISTRICT OF OHIO
THOMAS ALTIERE,                                     :
                                                    :
        Defendant-Appellee.                         :



BEFORE: BOGGS and WHITE, Circuit Judges; BERTELSMAN, District Judge.*

                                                 OPINION


PER CURIAM.

        Plaintiff-Appellant Alan Francis attempted suicide twice in twenty-four hours while he was

housed at the Trumbull County Jail. Specifically, Francis tried to hang himself with blankets in his

cell. He was rescued by officers and other inmates, and after he was examined at a hospital, he was

returned to his cell and provided some form of paper outfit and a three-ply paper blanket given to

suicidal inmates. Once back in his cell, Plaintiff told a Corrections Officer that he was not going

to stay in prison for twenty years and that he was going to “try something again.” Later that night,

a Corrections Officer found Francis with part of the paper gown wrapped around his neck.


*
 The Honorable W illiam O. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
No. 10-3100
Francis v. Altiere

Consequently, the Assistant Warden on duty ordered the Corrections Officer to remove even the

paper blanket and gown. Additionally, for reasons that are not entirely clear from the record,

Francis was housed in a cell that did not contain a mattress and so was forced to sleep either on a

stainless steel bed or the concrete floor.

         Plaintiff brought suit pro se pursuant to 42 U.S.C. § 1983 against Thomas Altiere, the Sheriff

of Trumbull County. In addition to the bedding and clothing claim, Plaintiff asserted numerous

allegations over the course of three documents.1 The magistrate judge, to whom the parties

consented, considered all three documents as the “Complaint.” See Br. of Appellee at 1 (citing Doc.

#74 at 1). Plaintiff’s claims fall into three general categories: Eighth Amendment claims based on

the deprivations of bedding and clothing; Eighth Amendment claims based on other conditions of

confinement2; and First Amendment-related claims.

         Altiere filed a motion to dismiss all of Plaintiff’s claims, which the magistrate judge granted

in part and denied in part. Order, at 13, R.74. Specifically, the magistrate judge dismissed certain

of the “other” Eighth Amendment conditions claims without prejudice: (1) unsanitary conditions;

(2) exercise; (3) shower; (4) clothing and bedding; and (5) medical care claims. Hence, the only

Eighth Amendment claim remaining after the magistrate judge’s Order was Plaintiff’s bedding and

clothing claim. Thereafter, Defendant moved for summary judgment on this claim, and the


1
  Citations to “Doc.” reflect the district court CM/ECF numbers for the documents.
2
  Specifically, among other things, Plaintiff alleged the following: that he was denied access to anti-anxiety medicine
he had been prescribed; that the administration kept him in suicide lockdown for 209 days, with only two reevaluations,
when the usual procedure requires a weekly reevaluation; that he was forced to go without a shower for thirteen days;
that he was denied access to the law library; that fecal matter on the walls and floors was cleaned ineffectively by other
inmates; that he was denied any recreational activity for the entire time he was incarcerated; and that he requested
grievance forms but was blatantly ignored. Complaint, R.1; Statement of Claims, R.3; Extended Statement of Claims,
R.7.

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Francis v. Altiere

magistrate judge entered summary judgment in favor of Defendant on the Plaintiff’s bedding and

clothing claim, as well. See id. at 2 (citing Doc. #92).

       Plaintiff timely appealed, seeking permission to proceed in forma pauperis and asserting

three assignments of error: (1) the district court overlooked several claims; (2) the district court

erred in granting summary judgment when the facts of this case are like those in Spencer v.

Bouchard, 449 F.3d 721 (6th Cir. 2006), abrogated on other grounds by Jones v. Bock, 549 U.S. 199

(2007); and (3) some circuits require “notice” to prisoners about the Rule 56 summary judgment

requirements, something the district court here did not afford Plaintiff.

       For the reasons stated below, we grant Plaintiff in forma pauperis status on appeal, reverse

the district court’s entry of summary judgment, and remand for further proceedings.

                                                 I.

       Defendant concedes that the “trial court never adjudicated Francis’ allegations not based on

the Eighth Amendment.” Br. of Appellee at 11. We conclude that the magistrate judge’s failure to

address claims was not limited to non-Eighth Amendment claims.

       Plaintiff characterizes the claims that the magistrate judge overlooked as: (a) First

Amendment claims based on freedom of religion, freedom of speech, and freedom to petition for

redress; (b) Sixth and Fourteenth Amendment claims of denial of rights to access to the courts and

a notary public, and not to have legal mail opened outside his presence; (c) a Due Process violation

for not having been afforded the opportunity to challenge the withholding of religious materials; and

(d) an Eighth Amendment claim “for being subjected to disease of the mouth wherein appellant was

given a plastic thimble for a toothbrush with extremely flimsy bristles.” Br. of Appellant at 1-2.


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Francis v. Altiere

        Plaintiff raised the toothbrush claim in one of his supplemental documents along with a

plethora of other assertions. See Doc. #7 at 6. The magistrate judge did not specifically mention

the toothbrush and several of Plaintiff’s other assertions when dismissing all but the Eighth-

Amendment bedding and clothing claims. Instead, the magistrate judge only discussed some of

those allegations and did not explain why review was limited to certain ones. Compare Doc. #7 at

1-12 with Doc. #74 at 6-11.

        Thus, it appears that the magistrate judge overlooked Eighth Amendment claims as well.

Since remand is concededly warranted for some claims, on remand the district court should ascertain

precisely which claims were overlooked.

                                                 II.

        Plaintiff next asserts that the magistrate judge erred in granting summary judgment in favor

of Defendant on the bedding and clothing claim. We review a grant of summary judgment de novo,

employing the same standard as the court below. See Dixon v. Gonzales, 481 F.3d 324, 330 (6th Cir.

2007). That is, summary judgment is appropriate where the record shows 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). Viewing the evidence in the light most favorable to Plaintiff, Defendant bore

the burden of proving the absence of any genuine issue of material fact. In response, Plaintiff was

required to present “significant probative evidence” showing more than some “metaphysical doubt”

as to the material facts. Id.

        An Eighth Amendment conditions-of-confinement claim consists of two prongs, both of

which must be met to merit relief. From an objective standpoint, the deprivation must be


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Francis v. Altiere

“sufficiently serious,” resulting in a denial of the “minimal civilized measure of life’s necessities.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir.

2006), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Also, the prison

official's “state of mind [must be] one of deliberate indifference to inmate health or safety.”

Spencer, 449 F.3d at 728 (internal quotation and citation omitted).

         Plaintiff argues that he presented sufficient evidence to survive summary judgment for two

reasons. First, since in Spencer the “mere” allegation that the prison was “very cold” was sufficient,

so too does Plaintiff’s allegation that “it was ‘very cold’ in his cell” defeat summary judgment. Br.

of Appellant at 5. Second, Plaintiff was placed on suicide watch under those conditions perhaps for

months, beyond what was reasonable for the purpose of preventing a suicide. Id. He is imprecise

and inconsistent in his allegations, both in the trial court and on appeal, about the number of days

he endured the conditions. They range from a few days to months.3 Therein lies another reason for

remand.

         In his verified complaint, Plaintiff asserted that he was “placed in a cell naked without

bedding, mattress or linen and made to sleep on [a] concrete floor (48 days).” Doc. 1 at 3. When

the magistrate judge initially declined to dismiss these claims on Defendant’s Rule 12(c) motion,

it noted that Plaintiff alleged “from November 30, 2005 through January 1, 2006, he was provide

(sic) with only a sleeveless paper towel vest and bottom as clothing . . that he slept on the concrete

floor since it was warmer than the steel bunk [and] was not provided a mattress until January 2,

3
  Compare Brief Appellant at 6 (“he had to be awake for two and a half days from lack of anything . . . in a cell so cold
that he cannot lay [sic] down and go to sleep causing him to be up for days.”), with id. at 5 (the “outside agency who
conducts the so called suicide watch reviews . . . cleared appellant to be released from suicide watch on April 8 2005,
however, appellant was not released from the conditions until June 20, 2006.”).

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No. 10-3100
Francis v. Altiere

2006.” Doc. #74 at 8. The magistrate judge further noted that it was unclear from Plaintiff’s

complaint “whether he is alleging two separate incidents of being without clothes in a cold cell (i.e.,

one period of six days and one of 48 days)” and, for the purposes of the motion, the district court

“assume[d] two separate incidents are alleged.” Id. at 8, n.4.

       As the magistrate judge held in denying the motion to dismiss, Plaintiff’s allegations

satisfied the objective prong of an Eighth Amendment conditions-of-confinement claim. In granting

the motion for summary judgment, the magistrate judge held, however, that Plaintiff’s claim failed

the subjective, deliberate-indifference prong. Order at 5, R.92. When it issued its summary

judgment decision, however, the magistrate judge did not indicate what time frames he was

considering. Defendant also makes no mention of any in his arguments on appeal. Instead, the

magistrate judge relied exclusively on Defendant’s legitimate motivation to prevent Plaintiff from

another suicide attempt in granting Defendant’s motion for summary judgment.

       The magistrate judge found the following undisputed facts conclusive of the deliberate

indifference question: Plaintiff did “not deny he attempted suicide;” did not dispute “that the jail

house staff believed Plaintiff attempted to commit suicide first with a bed sheet and later with a

paper suicide gown;” did not dispute that “after the second perceived suicide attempt, Defendant

took away any items that Plaintiff could potentially use to commit suicide” until such time as

Plaintiff could be screened by a mental health agency; and did not dispute that staff acted “in

accordance with jail procedure and in furtherance of the jail’s goal to protect the health and safety

of its prisoners.” Doc. #92 at 4.




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No. 10-3100
Francis v. Altiere

       What the magistrate judge evidently found dispositive was the result in Daniels. See Daniels

v. Woodside, 396 F.3d 730, 736 (6th Cir. 2005). As he noted, in Daniels this Court found no

constitutional violation when jail staff confined a prisoner to “twenty-four hour lock-down,”

deprived him “of exercise,” and dressed him “in suicide gown that did not completely close in the

back.” See Doc. # 92 at 4 (internal quotations and citation omitted). As that quotation reveals, the

duration of the Daniels deprivation was for one day. The Spencer decision, which the magistrate

judge did acknowledge, was decided after Daniels, and in fact cites Daniels, but did not consider

Daniels conclusive of the deliberate-indifference prong. It cited Daniels in a footnote for the

proposition that the same standards apply to pretrial detainees, and did not cite or discuss Daniels

at all with respect to either prong of the Eighth Amendment analysis. See Spencer, 449 F.3d at 727-

30 & n.7.

       Under Spencer, obvious and extreme conditions can constitute “deliberate indifference.” Id.

at 6. The magistrate judge distinguished Spencer because Plaintiff did not present “any direct or

indirect evidence as to the temperature of his cell ... or that it would have been obvious to anyone

that sleeping on the floor in the Trumbull County Jail is an inhumane condition.” Order at 6, R.92.

       In Spencer, as here, no specific temperature reading was mentioned or proven, but there the

prison was so cold officers wore their winter coats indoors. Moreover, whenever it snowed or

rained, water leaked into the sleeping area and flooded it. This situation lasted “continuously for

several months (including all of December and January), subject only to the occasional relief of an

unseasonably warm day.” Spencer, 449 F.3d at 728.




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No. 10-3100
Francis v. Altiere

        While the magistrate judge ostensibly considered Plaintiff’s claim about the deprivation of

his clothing, bedding, and a mattress in combination, in reality, he addressed each condition in

isolation. For example, the magistrate judge addressed the deprivation of Plaintiff’s clothing, then

considered the deprivation of the mattress, and then considered the cold temperature. He did not

consider the combined effect of the length of time these conditions persisted, along with the other

relevant verified assertions and evidence submitted. A component of the Spencer deliberate

indifference analysis was the fact that obvious objectively “severe” conditions lasted for months,

and those conditions went unremediated even in the face of inmate complaints and self help, while

officers actively obstructed inmates’ attempts to improve their circumstances. In other words, we

think it plain that under Spencer, while it is appropriate to consider asserted deprivations

individually and in combination, the court should also consider the interrelationship between the

severe conditions and their duration, coupled with any other relevant evidence in the record. The

magistrate judge did not do so, and the record on appeal is not sufficiently clear for us to make that

determination in the first instance.4

                                                       III.

        Therefore, we REVERSE the district court’s entry of summary judgment and REMAND the

matter to the district court for further proceedings not inconsistent with this opinion.




4
   Plaintiff also contends that he did not receive notice of the requirements and standards governing a motion for
summary judgment, and thus, he is entitled to automatic reversal. See generally United States v. Ninety-Three (93)
Firearms, 330 F.3d 414, 427-28 (6th Cir. 2003) (citing cases and discussing issue). Given our disposition, this
assignment of error is moot.

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