___________ No. 95-2703

___________ Felix D. Smith, * * Plaintiff/Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Norman Copeland, * * Defendant/Appellee, * * Capt. Hines, Mike Hurst, Boffe * Scott, John Bick, Officer * Morgan, Officer Holshouser, * John Doe #1, John Doe #2, * John Doe #3, * * Defendants, * * John Rich, Robert Scott, * * Defendants/Appellees, * * Cape Girardeau County Jail, * * Defendant, * * Leonard Hines, Michael Hurst, * Mike Morgan, John Holshouser, * Officer Stoffregen, Officer * Hampton, J.P. Mulcahy, Officer, * Gene Huckstep, Larry Bock, * E. C. Younghouse, Cape * Girardeau County, * * Defendants/Appellees. *

___________ Submitted: February 15, 1996 Filed: June 27, 1996

___________ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

### The Honorable Donald J. Stohr, United States District Judge 1 

### for the Eastern District of Missouri.
-2- BEAM, Circuit Judge.
Felix D. Smith appeals a district court order denying relief in his 1 prisone r civil rights action which involves an overflowed toilet. W e affirm.

I. BACKGROUND

Sm ith was a pretrial detainee on two occasions in Cape Girardea u Count yJail. He filed a 42 U.S.C. § 1983 action against the county an d certain individuals (hereinafter "correctional officers") asserting tha t his civil rights were violated during his imprisonments. He challenged th e condit ions of his confinement and also alleged excessive force b y
corre ctional officers. He alleged that he was placed in solitar y confinement without clothing, bedding, or blankets; that he was denied foo d and water; that he was forced to endure raw sewage in his cell; tha t correctional officers used excessive force on him; and that he was denied medical attention.

The correctional officers moved to dismiss and also moved for s ummary judgment. In support of their motions, they submitted affidavits stating that their actions were both provoked and justified and that there ar e penological reasons for denying a pretrial detainee bedding and clothing in sol itary confinement. The correctional officers further stated tha t Smith was only denied one meal and that the "raw sewage" complained of was a toilet overflow that was not cleaned up for two days.

The district court granted summary judgment to the correctiona l officers on the claim involving denial of food, clothing and bedding. It also dismissed the exposure-to-raw-sewage

### -3-

claim

. Finding disputed issues of fact, the district court denied th e correctional officers ' motion for summary judgment on the excessive force claims a nd those claims proceeded to trial by a jury. At trial, Smit h obj ected to the make-up of the venire panel, but his objection wa s overruled

. Also, the district court refused to let Smith argue th e "missing witness inference" to the jury. The jury found in favor of the correctional officers.

On ap peal Smith asserts that the district court: (1) erred i n granting summary judgment to defendants on the conditions of confinement claimand in dismissing his claim regarding exposure to raw sewage; (2 ) abused its discretion in overruling his objectio n to the venire panel; and (3) abused its discretion in prohibiting Smith from arguing the "missing witness inference" in closing.

II. DISCUSSION

A. Conditions of Confinement Claims

We review a district court's grant of summary judgment de novo , affirming only if the record shows there is no genuine issue of material fac t. Brandenburg v. Allstate Ins. Co. , 23 F.3d 1438, 1440 (8th Cir

. 1994); Fed. R. Civ. P . 56(c). With respect to Smith's assertion that the district court improperly granted summary judgme nt on his claim for denial of clothing, bedding, running water, food and to iletries while in solitary confine ment, we affirm for the reasons stated in the district court' s opinion. See 8th Cir. R. 47B.

### The distric t court may be affirmed on this ground if lack of 2 

### "p ersonal involvement" is interpreted as lack of notice t o supervisors so as to impose supervisory liability on them. Se e Howard v. Adkison , 887 F.2d 134, 138 (8th Cir. 1989) ("[a] single inc ident, or a series of isolated incidents, usually provides a n in sufficient basis upon which to assign supervisory liability")

. The record supports such a reading with respect to supervisor y personnel.
-4- Smith al so argues that the district court improperly dismissed his claimrelating to exposure to raw sewage. The district court found that Smith had not alleged either sufficient "personal involvement" in th e episode by individual defendants or any custom or policy by the county to support liability. Thus, the claim was subject to dismissal for failure to state a claim. We are not convinced that def endants' lack of "personal involvement" requires judgment in their favor, but we nonetheless affirm the distri ct court's decision. We may affirm the judgment on any ground 2 supported by the record, even if not relied upon by the district court

. Monterey Dev. Corp. v. Lawyer's Title Ins. Corp. , 4 F.3d 605, 608 (8th Cir

. 1993).

The st andard applicable to conditions of confinement claims b y pretrial detainees was enunciated in Bell v. Wol fish , 441 U.S. 520 (1979). The proper inquiry is whether those conditions a mount to punishment of the detainee, for, under the Due Process Clause, a detainee may not be punishe d prior to an adjudication of guilt. Id. at 535. However, not ever y disability imposed during pretrial detention amounts to "punishment" in th e constitutional sense. Id. at 537. Thus, if a particular condition o r restri ction of pretrial detention is reasonably related to a legitimat e governmental objective, it does not, without mor e, amount to "punishment." Id. at 53 9. The Government has legitimate interests that stem from it s need to manage the facility in which the individual is detained. Id. at 540. Furthermore, there is a de minimis level of imposition with which th e Constitution is not concerned. Id. at 539 n.21.

### Smith asserts in his affidavit that he used the toilet o n 3 

### July25, 1992, shortly after being placed in isolation, at whic h time it overflowed. He states that he was not provided protective clothing and equipment to clean it up until the morning of J uly 29, when he was released from isolation. The correctional offic ers, on the other hand, state by affidavits and through supporting prison lo gs, that Smith "had stuffed his paper gown in the toilet an d repeated lyflushed it causing a minor flood in the jail area" o n July27, 1992 and that the water was turned off at that time

. Appendix at 119. We need not resolve this factual dispute s ince we find that even Smith's scenari o of a toilet overflow of four days' duration does not amount to a constitutional violation.
Under Bell v. Wolfish , a pretrial detainee faces a lighte r 4 

### burden to show a constitutional violation than under the Eight h Amendmen t. See Bell , 441 U.S. at 535 n.16 (due process require s that a pretrial detainee not be punished; the Eighth Amendmen t requires that the punishment imposed not be cruel and unusual).
-5- In this case, Smith's allegations re garding "raw sewage" do not rise to a level of constitutional significance. Smith alleges that he wa s subject to an overflowed toilet in his isolationcell from July 25 to July 29, 1992. He alleges that he was "made to endure the stench of [his] own fe ces and urine" for those four days. Appendix at 222. Smith did no t 3 allege that he was exposed to disease or suffered any other consequences of the exposure. In support of their motion for summary judgment, th e
correc tional officers stated by affidavit that Smith was offered a n opportunity to flush the toilet and to clean up the mess but he declined. Smith did not dispute that point. Applying the Bell v. Wolfish standard,
we f ind, under the circumstances of this case, that the "raw sewage " allegation amounts to a de minimis imposition and thus does not implicate constitutional concerns.
Although this case is governed by Bell v. Wolfish , Smith cites Eighth Amendment jurispruden ce to support the contention that his constitutional rights w ere violated. The Eighth Amendment prohibits punishments tha t 4 depriv e inmates of the minimal civilized measure of life's necessities

. Howard v . Adkison , 887 F.2d 134, 137 (8th Cir. 1989). Exposure to ra w sewage may in some cases

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amount to cruel and unusual punishment. Fruit v. Norris , 905 F.2d 1147, 1151 (8th Cir. 1990). However, any analysis of confinement conditions mus t be based on the totality of the circumstances. Howard , 887 F.2d at 137. To prevai l on an Eighth Amendment claim in this context, an inmate mus t show that correctiona l officers were deliberately indifferent to the risk of harm posed by the raw sewage. See Burton v. Armontrout , 975 F.2d 543, 546 (8th Cir. 1992), cert. denied , 508 U.S. 972 (1993). Thus, not every overflowed toilet in a prison amounts to a constitutional violation.

We have found a constitutional violation where inmates were force d to work without prote ctive gear "in a shower of human excrement." Fruit , 905 F.2d at 1151. We have also ordered prisons to provide protective gear and to warn of the dangers of working in AIDS-co ntaminated waste. Burton , 975 F.2d at 545. We have similarly found a violation where an inmate was forced to endure a cell covered with filth and human waste for two ful l years. Howard , 887 F.2d at 137. Thus, the length of time a prisoner is subjected to harsh co nditions is a critical factor in our analysis. See , e.g. , id. ("inmates are entitled to reasonably adequate sanitation , persona l hygiene, and laundry privileges, particularly over a length y course of time"). Co nditions such as a filthy cell that may be tolerable for a few days are intolerably cruel for weeks or months. Id.

In the p resent case, Smith submitted an affidavit in opposition t o the correctional officers' motion for summary judgment. Viewed in th e light mo st favorable to Smith, those materials show that Smith wa s subject ed to an overflowed toilet in his cell for four days. Under th e totali tyof circumstances presented here, we find that the correctiona l officer s were entitled to judgment as a matter of law on the raw sewag e claim, whether analyzed under Eighth Amendment or Due Proces s jurisprudence.

### -7- B. Venire Panel

At oral argument, counsel for Smith conceded that his argumen t regarding the make-up of the venire panel is foreclosed by United States

v. Rogers , 73 F.3d 774, 775 (8th Cir.), cert. denied , 64 U.S.L.W. 380 7 (1996). In Rogers , w e reaffirmed our earlier holding in United States v. Garcia , 991 F.2d 489, 491 (8th Cir. 1993), that a jury selection plan base d on registered voter l ists withstands constitutional scrutiny unless there is a showing of systematic exclusion of blacks in the jury selectio n proc ess. Rogers , 73 F.3d at 775. Only the court en banc can overrul e another panel's decision. Campbell v. Purkett , 957 F.3d 535, 536 (8th Cir

. 1992). Accordingly, we are bound by Rogers and Garcia . Because Smith has fail ed to prove systematic exclusion of blacks in the jury selectio n process, we affirm the district court's denial o f Smith's objection to the venire panel.

C. "Missing Witness Inference"

In closing argument, Smith sought t o argue that the jury could draw

an in ference from the failure of John Rich, a correctional officer an d named defendant, to testify. The district court sustained the correctiona l officers' objection to that argument. The district court has broa d discretion in ruling on the propriety of closing argument. United States v. Collins , 996 F.2d 950 (8th Cir.), cert. denied , 114 S. Ct. 412 (1993). We will not disturb the court's ruling absent anabuse of that discretion. Slather v. Sather Trucking Corp. , 78 F.3d 415, 420 (8th Cir. 1996). T o constitute reversible error, we must find that t he district court's action resulted in injury or prejudice. Id. Here, Smith had an opportunity to depose the witness and could have offered the witness' depositio n testimony

. See Campbell v. Coleman Co. , 786 F.2d 892, 897-98 (8th Cir

. 1986) (under Missouri law, a negative inference may not be raised if the witness is equally available to both parties). In addition, the witness was a party defendant and

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Smi th was allowed to argue to the jury that he had not "show[n] up t o defend hi mself." Transcript Vol. 2 at 92. Under the circumstances, w e find no abuse of discretion.

III. CONCLUSION

For the r easons set forth above, the judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.