___________

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.

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BEAM, Circuit Judge.

Felix D. Smith appeals a district court order denying relief in his 1

prisoner civil rights action which involves an overflowed toilet. We

affirm.

I. BACKGROUND

Smith was a pretrial detainee on two occasions in Cape Girardeau

County Jail. He filed a 42 U.S.C. § 1983 action against the county and

certain individuals (hereinafter "correctional officers") asserting that

his civil rights were violated during his imprisonments. He challenged the

conditions of his confinement and also alleged excessive force by

correctional officers. He alleged that he was placed in solitary

confinement without clothing, bedding, or blankets; that he was denied food

and water; that he was forced to endure raw sewage in his cell; that

correctional officers used excessive force on him; and that he was denied

medical attention. 

The correctional officers moved to dismiss and also moved for summary

judgment. In support of their motions, they submitted affidavits stating

that their actions were both provoked and justified and that there are

penological reasons for denying a pretrial detainee bedding and clothing

in solitary confinement. The correctional officers further stated that

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 correctional

officers on the claim involving denial of food, clothing and bedding. It

also dismissed the exposure-to-raw-sewage
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claim. Finding disputed issues of fact, the district court denied the

correctional officers' motion for summary judgment on the excessive force

claims and those claims proceeded to trial by a jury. At trial, Smith

objected to the make-up of the venire panel, but his objection was

overruled. Also, the district court refused to let Smith argue the

"missing witness inference" to the jury. The jury found in favor of the

correctional officers. 

On appeal Smith asserts that the district court: (1) erred in

granting summary judgment to defendants on the conditions of confinement

claim and in dismissing his claim regarding exposure to raw sewage; (2)

abused its discretion in overruling his objection 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

fact. 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 judgment on his claim for denial

of clothing, bedding, running water, food and toiletries while in solitary

confinement, we affirm for the reasons stated in the district court's

opinion. See 8th Cir. R. 47B.
 The district court may be affirmed on this ground if lack of 2

"personal involvement" is interpreted as lack of notice to

supervisors so as to impose supervisory liability on them. See

Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) ("[a] single

incident, or a series of isolated incidents, usually provides an

insufficient basis upon which to assign supervisory liability").

The record supports such a reading with respect to supervisory

personnel.

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 Smith also argues that the district court improperly dismissed his

claim relating to exposure to raw sewage. The district court found that

Smith had not alleged either sufficient "personal involvement" in the

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 defendants' lack of "personal

involvement" requires judgment in their favor, but we nonetheless affirm

the district 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 standard applicable to conditions of confinement claims by

pretrial detainees was enunciated in Bell v. Wolfish, 441 U.S. 520 (1979).

The proper inquiry is whether those conditions amount to punishment of the

detainee, for, under the Due Process Clause, a detainee may not be punished

prior to an adjudication of guilt. Id. at 535. However, not every

disability imposed during pretrial detention amounts to "punishment" in the

constitutional sense. Id. at 537. Thus, if a particular condition or

restriction of pretrial detention is reasonably related to a legitimate

governmental objective, it does not, without more, amount to "punishment."

Id. at 539. The Government has legitimate interests that stem from its

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 the

Constitution is not concerned. Id. at 539 n.21. 
 Smith asserts in his affidavit that he used the toilet on

3

July 25, 1992, shortly after being placed in isolation, at which

time it overflowed. He states that he was not provided protective

clothing and equipment to clean it up until the morning of July 29,

when he was released from isolation. The correctional officers, on

the other hand, state by affidavits and through supporting prison

logs, that Smith "had stuffed his paper gown in the toilet and

repeatedly flushed it causing a minor flood in the jail area" on

July 27, 1992 and that the water was turned off at that time.

Appendix at 119. We need not resolve this factual dispute since we

find that even Smith's scenario of a toilet overflow of four days'

duration does not amount to a constitutional violation.

 Under Bell v. Wolfish, a pretrial detainee faces a lighter

4

burden to show a constitutional violation than under the Eighth

Amendment. See Bell, 441 U.S. at 535 n.16 (due process requires

that a pretrial detainee not be punished; the Eighth Amendment

requires that the punishment imposed not be cruel and unusual).

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In this case, Smith's allegations regarding "raw sewage" do not rise

to a level of constitutional significance. Smith alleges that he was

subject to an overflowed toilet in his isolation cell from July 25 to July

29, 1992. He alleges that he was "made to endure the stench of [his] own

feces and urine" for those four days. Appendix at 222. Smith did not

3

allege that he was exposed to disease or suffered any other consequences

of the exposure. In support of their motion for summary judgment, the

correctional officers stated by affidavit that Smith was offered an

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 find, 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 jurisprudence to support the contention that his constitutional

rights were violated. The Eighth Amendment prohibits punishments that

4

deprive inmates of the minimal civilized measure of life's necessities.

Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989). Exposure to raw

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 must

be based on the totality of the circumstances. Howard, 887 F.2d at 137.

To prevail on an Eighth Amendment claim in this context, an inmate must

show that correctional 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 forced

to work without protective 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-contaminated 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 full

years. Howard, 887 F.2d at 137. Thus, the length of time a prisoner is

subjected to harsh conditions is a critical factor in our analysis. See,

e.g., id. ("inmates are entitled to reasonably adequate sanitation,

personal hygiene, and laundry privileges, particularly over a lengthy

course of time"). Conditions such as a filthy cell that may be tolerable

for a few days are intolerably cruel for weeks or months. Id. 

In the present case, Smith submitted an affidavit in opposition to

the correctional officers' motion for summary judgment. Viewed in the

light most favorable to Smith, those materials show that Smith was

subjected to an overflowed toilet in his cell for four days. Under the

totality of circumstances presented here, we find that the correctional

officers were entitled to judgment as a matter of law on the raw sewage

claim, whether analyzed under Eighth Amendment or Due Process

jurisprudence. 
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B. Venire Panel

At oral argument, counsel for Smith conceded that his argument

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. 3807

(1996). In Rogers, we reaffirmed our earlier holding in United States v.

Garcia, 991 F.2d 489, 491 (8th Cir. 1993), that a jury selection plan based

on registered voter lists withstands constitutional scrutiny unless there

is a showing of systematic exclusion of blacks in the jury selection

process. Rogers, 73 F.3d at 775. Only the court en banc can overrule

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

failed to prove systematic exclusion of blacks in the jury selection

process, we affirm the district court's denial of Smith's objection to the

venire panel. 

C. "Missing Witness Inference"

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

an inference from the failure of John Rich, a correctional officer and

named defendant, to testify. The district court sustained the correctional

officers' objection to that argument. The district court has broad

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 an abuse of that discretion.

Slather v. Sather Trucking Corp., 78 F.3d 415, 420 (8th Cir. 1996). To

constitute reversible error, we must find that the 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' deposition

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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Smith was allowed to argue to the jury that he had not "show[n] up to

defend himself." Transcript Vol. 2 at 92. Under the circumstances, we

find no abuse of discretion.

 

III. CONCLUSION

For the reasons set forth above, the judgment of the district court

is affirmed.

A true copy.

Attest:

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