* Pursuant to Local Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________________________

No. 95-10786

(Summary Calendar)

____________________________________

WILLIAM ROBERT McCORMICK,

Plaintiff-Appellant

vs.

RUSTY WEST, M.D.;

MONTAGUE COUNTY JAIL,

Defendants-Appellees

_______________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:94-CV-490-E)

_______________________________________ April 18, 1996

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM: *

In this pro se prisoner action, William Robert McCormick filed

a § 1983 suit in forma pauperis against Rusty West, M.D. and the

Montague County Jai l for violations of his civil rights. The

complaint alleged that Dr. West and the jail failed to provide him

adequate medical care and placed him overnight in a “Chinese

cell”

-- a cell that had no toilet facilities, save a hole in the floor,

or bedding

-- all in violation of the Eigh th Amendment.

McCormick subsequently moved to subst i tute Sheriff Kevin

Benton for the jail as party defendant. The district court granted

Dr. West’s m o tion for summary judgment and dismissed as2

frivolous the claims agains t the jail and sheriff. McCormick

appeals from the district court’s disposi tion of the case,

complaining that t he court abused its discretion in refusing to

accept various pleadings for filing, and that it reversibly erred

both in granting Dr. West’s summary judgment mo tion and

dismissing the claims against th e jail and sheriff. We affirm in

part, reverse in part, and remand for further proceedings.

In adjudicating D r. West’s motion for summary judgment,

the district court found that “McCormick’s allegations amount to,

at most, neg ligence and a difference of opinion with the Jail

doctor as to his treatment,” and that he therefore had not

demonstrated the “deliberate indifference” necessary to prevail

in a § 1983 suit based on the failure to provide constitutionally

sufficient medical care under the Eighth Amendment. We find

no error in this ruling and affirm.

We also find that the trial court did not abuse its discretion

in refusing to accept certain filings because they did not comport

with local rules. The record reveals that, with the exception of

the documents requ e sting a temporary restraining order, the

pleadings ordered unfiled by the district court were either not

required to be filed or were subsequently accepted for filing. The

district court apparently co nstrued the pleadings responsive to

its show cause order and gave them “full consideration,” despite

their late filing date, in ruling on the frivolousness of the case

against the Montague County jail. As McCormick could not have

shown he was entitled to a temporary restraining order, and was3

not materially affected by the failure to accept filing of the other

pleadings, he was not denied access to the court and was not

prejudiced by the district court’s refusal to accept the pleadings

for filing.

We nonetheless determine that remand is required in this

matter. The district court dismissed as frivolous the claims

against the jail, even assuming the substitution of Sheriff Benton,

on the ground that McCormick had failed to allege an official

policy or custom, a necessary element in a suit against

government officials in t heir official, rather than individual,

capac ity. S ee Thompkins v. Belt

, 828 F.2d 298, 304 (5th Cir. 1987).

A lthough we find no error with respect to the district court’s

dismissal of McCormick’s claim that the jail and Sheriff Benton

denied him adequate medical care, his complaint t hat he was

placed in a “Chinese cell” lacking toilet and bed facilities should

not have been dismissed as frivolous under 28 U.S.C. § 1915(d).

Courts have found such prison conditions to be cruel and

unusual punishment violating the Eighth Amendment. S ee, e.g.

Kirby v. Blackledge , 530 F.2d 583, 586 (4th Cir. 1976) (placement in

“Chinese cell” in which there is no bedding, no light and no toilet

facilities save a hole in the wall violates Eighth Amendment);

McCray v. Sullivan

, 509 F.2d 1332, 1336 (5th Cir. 1975)(placement of

prisoners in small cell with no beds, toilets, sinks or other

facilities, other than hole in the cell floor that serves as toilet, is

c r uel and unusual punishment); see also Bienvenu v. Beauregard Parish

P olice Jury , 705 F.2d 1457, 1460 (5th Cir. 1983)(allegation that4

defendant intentionally subjected prisoner to “cold, rainy, roachinfested facility and furnish ed him with inoperative, scumencrusted washing and toilet facilities sufficiently alleges a cause

of action cognizable under 42 U.S.C. § 1983 and the eighth and

fourteenth amendments.”). Moreover, the existence and use of

such facilities clearly suggest a custom or polic y of the prison

implicating the sheriff in his official capacity. As such,

McCormick has stated a nonfrivolous claim that must be

remanded for further development.

DECREE

For the foregoing reasons, the district cour t’s order dated

J une 21, 1995, dismissing the claims against Dr. West is

affirme d; the district court’s order dated August 7, 1995, is

reversed to the extent that it dismissed McCor mick’s claim of

impermissible placement in a “Chinese cell”; and the case is

remanded for further proceedings.