* Pursuant to 5 t h CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 th CIR. R. 47.5.4.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60610

JARVIOUS COTTON, LARRY P. JACKSON, ROBERT BRENT LAYNE,

RONNIE SMITH and KENNETH W. GARRISON,

Plaintiffs-Appellees,

versus

SHIRLEY TAYLOR, BRENDA BROWN, WILLIAM HOSKINS,

STEVE W. PUCKETT, RALPH HAMES, LEE ROY BLACK,

and WILLIE BROWN,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Mississippi

(4:92-CV-63-D)

March 9, 1999

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM: *

T his case requires us to determine whether the district court committed clear err or or

otherwise misapplied the law in finding that the plaint iffs were deprived the minimum standard of

confinement required under the Ei ght Amendment. We must also determine whether the district

court erred in awarding plaint iff, Larry P. Jackson, damages after Jackson signed a notice voluntarily

dismissing himself as a party. For the reasons stated herein, we reverse.

Factual and Procedural Background

Jarvious Cotton, Mississippi prisoner # 34463; Larry P. Jackson, # 48890; Rober t Brent1 Aside from the duration of the conditions, the facts relating to the leaking roof, the conditions

created in the cells, and the defendants’ repair efforts are not in dispute.

2 Jim Harman was not named as a defendant.

2 Layne; Ronnie Smith, # 37556; and Kenneth Garrison, # 73717, filed this 42 U.S.C. § 1983 action

against Shirley Taylor, correctional officer; Bren da Brown, correctional officer; William Hoskins,

Associate Warden of Unit 29 at Parchman; Steven Puckett, Superintendent of the Mississippi State

Penitentiary; Ralph Hames, Assistant Unit Administrator of Unit 29; Lee Roy Black, Commissioner

of the Mississippi State Penitentiary; Ronald Welch, the class litigation counsel for the Mississippi

State Penitentiary; and Willie L. Brown, State Health Inspector. In their second amended complaint,

the plaint iffs alleged claims relating to the op ening of their mail, the policy concerning how many

packages they could receive, and a leaking roof in Unit 29 where they were housed.

The district court granted summary judgment for the defendan t s on t he mail and package

claims, and the case proceeded t o a t rial o n the leaky roof claim. A trial was held before the

magistrate judge. The magistrate judge recommended that judgment be entered for the defendants.

The magistrate judge stated that the evidence showed that the consensus of the witnesses was that

the ten-year-old roof of Unit 29 leaked during every heavy rain sometime during 1991. 1 The leaking

was so severe that sleeping bunks, clothing, and other personal possessions became saturated,

electrical outl ets sparked, and water collected on the floor. At least one correctional officer testified

that he wore a raincoat when working in Unit 29 during this period. The five plaintiffs testified that

they lost personal property

, suffered recurring colds, los t sleep, and suffered emotional distress.

Although the staff physician testified that only one plaint iff, Smith, sought medical attenti on for cold

or flu-like symptoms, the plaint iffs testified that they bought over-the-counter med ications every

month from the canteen. The magistrate judge found that the roof problem was severe and deprived

the plaintiffs of minimally safe housing.

The magi s trate judge stated that the physical plant director of the prison, Jim Harman, 2

became aware of the problem at Unit 29 in Dece mber 1991. Because the roof was still under3

warranty, notice was given to the company who had installed the roof, and the company had 30 days

to respond under the contract. Three crews worked on the roof, attempting to repair it with felt and

plastic roof cement yet their efforts were ultimately unsuccessful. Unit 29 needed a new roof which

would cost an estimated $400,000.00. The Bureau of Buildings requested bids and awarded a

contract. The new roof was installed in May 1992. In the interim, inmate crews worked to repair

the leaks with tar. Harmon testified that the authorities at the prison encouraged him to do whatever

was necessary and to work as quickly and efficient ly as possible. The magistrate judge found that the

evidence demonstrated the defendants’ efforts to remedy the problem effectively and expeditiously.

The magistrate judge further found that because of limit ed space at the Mississippi State Penitentiary,

the defendants had no meaningful alternative but to continue to house the prisoners in that unit. The

magistrate judge concluded that the de fendants were not deliberately indifferent to the living

conditions of the plaintiffs.

The plaint iffs f

iled objections to the magistrate judge’s report. The district court judge

ordered transcription of the trial for his review. The district court did not adopt the recommendation

of the magistrate judge, stating that the magistrate judge did not correctly assess the facts in evidence

when reaching his conclusions. The district court found that the leaky roof condition existed from

sometime late in 1991 to May 1992. I d

. The district court briefly summarized the severity of the

leaks and the efforts of the def endants to repai r i t. The di stri ct court acknowl edged that the

magistrate judge had correctly stated the applicable deliberate indifference standard for analyzing the

plaint iffs Eighth Amendment conditions-of-confinement claim and agreed with the magistrate judge

that the conditions deprived the plaintiffs of minimally safe housing.

However, the district court did not agree with the magistrate judg e’s conclusi on that the

defendants were not deliberately indifferent. According to the district court, there was insufficient

evidence to support this finding. The district court reasoned:

In light of the defendant’s knowledge of the housing dilemma and of

their inabilit

y to remedy the problem, the court finds that the plaint iffs

have made a prima facie showing that the def endants’ deci si on to

continue housing the plaint iffs in Unit 2 9K was unreasonable, and4 evinced a deliberate indifference to a substantial risk of serious harm.

5 Record 1072. The district court explained that the defendants had failed to rebut this p rima facie

case with any evidence to support a finding of reasonableness. “While there was sufficient evidence

placed before the Magistrate Judge concerning efforts to repair the roof of Unit 29K, there is nothing

before the court which indicates that the state penitentiary was so crowded during the time period

in question that the defendants `had no meaningful alterna t ive’ but to continue housing inmates in

Unit 29K.” 5 Record 1072-73. The district court stated that there was no evidence placed before

the court regarding the availability or expense of temporary housing such as a “quick-bed” facility,

the renting or purchasing of manufactured housing, or even tents. Also, there was no proof regarding

the feasibilit

y of converting the use of other buildings at the penitentiary for use as temporary housing

until the roof leak was fixed. The district court opined that the defendants had the opportunity to

present such evidence to rebut the plaintiffs’ prima facie showing but did not do so.

The distr ict co urt observed that it could take judicial notice of generally overcrowded

conditions at Parchman throughout the years yet declined to do so. According to the district court,

judicial notice was an incomplete substitute and could not be stretched to protect the defendants in

this case. The district court held:

The undersigned cannot take judicial notice of the fact that the state

penitentiary was so financially and logistically constrained during the

time period at bar that no alternative space was reasonably available

for th e inmates of Unit 29K. In light of the admitted knowledge on

the part of the defendants regarding the living conditions in Unit 29K,

t his court sees no alternative but to find that the defendant s subjectively knew of a substantial risk of serious harm to the plaint iffs

in this case and disregarded t hat risk by failing to take reasonable

measures to abate it.

5 Record 1073. The district court found for the plaint iffs and entered judgment for them in the

amount of $2,000 each for a total verdict against the defendants of $10,000. The defendants

appealed.

Discussion

On appeal from a bench trial, this court reviews factual findings for clear error and issues of5

law de novo. O dom v. Frank

, 3 F.3d 839, 843 (5th Cir. 1993). If the factfinder's account of the

evidence is plausible, this court may not reverse it. Also, when two views o f t he evidence are

permissible, "the factfinder's choice between them cannot be clearly erroneous." A nderson v. City

of Bessemer City , 470 U.S. 564, 573-74 (1985).

The Eighth Amendment, made applicable to the states through the Fourteenth Amendment,

prohibits cruel and unusual punishment as a condition of imprisonment. Consequently, the conditions

under which prisoners are confined are subject to scrutiny under the Eighth Amendment. F armer v.

Brennan

, 511 U.S. 825, 832 (1994). Prison officials must provide humane conditions of confinement,

including adequate shelter, and must take reasonable measures to guarantee the safety of the inmates.

Id

. To establish an Eighth Amendment violation, an inmate must first show that the deprivation

alleged, viewed objectively, is sufficiently serious. Specifically, a prison official’s act or omission

must result in the denial of the minimal civilized measure of life’s necessities. Farmer , 511 U.S. at

834. Next, the prison official must have a sufficiently culpable state of mind. Id

.

This court reviews a prisoner's allegations challenging the conditions of confinement under

the "deliberate indifference" standard. W ilson v. Seiter

, 501 U.S. 294, 302-03 (1991). To establish

deliberate indifference in the context of the Eighth Amendment, a prisoner must show that t he

defendants (1) were aware of facts from which an inference of an excessive risk to inmate health or

safety could be drawn; and (2) drew an inference that such potential for harm existed. F armer

, 511

U.S. at 837. A prison official acts with deliberate indifference under the Eighth Amendment "only

if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to

take reasonable measures to abate it." I d

. at 847. Prison officials who actually knew of a substantial

risk to inmate health or safety may be found free from liability if they responded reasonably to the

risk, even if the harm ultimately was not averted. Prison officials who act reasonably cannot be found

liable under the Eighth Amendment. Id . at 844-45.

The appellants argue that the district court erred in finding that they violated the plaint iffs’

Eighth Amendment rights by not providing them with minimally safe housing. They contend that the6

district court could have taken judicial notice of sev ere overcrowding at the State Penitentiary

.

Appellants further emphasize that they explained during trial that prison officials have no authority

to house inmates in facilit ies not approved by the court and that all approved places were full. They

challenge the district court’s finding that they continued to house the plaint iffs in Unit 29K and failed

to present evidence at trial to show that there were no feasible housing alternatives. They argue that

the evidence of their repairs upon becoming aware of the pro blem proves that they were not

d eliberately indifferent. They also dispute the district court’s finding that the leaking roof caused

Unit 29K to be unsafe to the extent that the plaintiffs were deprived of a basic human need. While

appellants concede that they could be considered negligent at most, they request reversal of t he

district court’s decision.

Appellants also raise other errors in the district court’s judgment. They argue that the district

court erred in holding all the defen dant s liable without making findings of individual culpability.

They correctly point out that the only allegations made by the plaint iffs against correctional officers

Shirley Taylor and Brenda Brown related to the mail policy. They note that the basis of the district

court’s finding of liabilit

y was the failure to make a housing change, and they argue that the district

co urt failed to make any findings, and that the record does not contain any evidence, as to which

defendants, if any, had the authority to make such a housing change. Finally, appellants point out an

error in the district court’s judgment invo lving plaintiff Larry P. Jackson. Jackson filed a voluntary

motion to dismiss which was granted before the district court entered final judgment in the case.

Jackson was no longer a party to the case when the district court granted judgment in his favor.

Both the magistrate judge and the district court found that the prisoners’ testimony about the

conditions created by the water leaks were sufficiently serious as to deprive the plaint iffs of minimally

safe housing. We agree. The plaint iffs testified that there was so much water on the floor at times

that the electrical receptacles would spark and smoke and that they feared electrocution. Based on

this testimony, the district court’s finding that the conditions were sufficiently serious as required to

establish an Eighth Amendment violation was not clearly erroneous.7

However, the district court’s finding that the prison o fficials failed to pres ent evidence to

show that they took reasonable measures to abate the problem must be reversed. We are mindful that

the prison officials must take reasonable efforts to abate the problem even if harm is ultimately not

averted. F armer

, 511 U.S. at 847. It is undisputed that from the time prison officials became aware

of the leaking roof at Unit 29K in December 1991, they began measures to repair the leaks. They

continuously performed in-house repairs, which stopped most of the leaks, up until the time the roof

was replaced in May 1992.

Conclusion

For the reasons ascribed, we REVERSE the judgment of the district court.