No. 95-2143

Paul Ferguson; * * Plaintiff-Appellant; * * v. * * Cape Girardeau County; Norman * Copeland, Sheriff, Cape * Girardeau County; Ripley * Appeal from the United States County; Nick Pepmiller; * District Court for the Harold Headly; * Eastern District of Missouri. * Defendants-Appellees; * * Irene X. Burghardt; * * Defendant; * * Log Cabin Realty/Century 21; * * Defendant-Appellee. *

Submitted: March 15, 1996 Filed: July 8, 1996
Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.
Paul Ferguson appeals the district c ourt's order of summary judgment and dismissal of all five counts of his suit alleging violations of 2 8 U.S.C. § 1983 and conversion. We affirm in part and reverse in part.

### Service was never properly obtained again st Log Cabin Realty/ 1 

### Century 21.
2 BACKGROUND
On April 4, 1989, defendant Harold H eadly, Deputy Sheriff for Ripley County, a nd Bill Royce, a dispatcher of the City of Doniphan Polic e Department, picked up the plaintiff, Paul Ferguson, in Florida, where he had been arrested, and returned him to Missouri pursuant to a writ o f extradi tion. Ferguson was incarcerated in the City of Doniphan Jail , located within Ripley County, to await trial. On May 17, 1989, at hi s request, Ferguson was transferred to the Cape Girardeau County Jail.
On April 22, 1991, Ferguson brought suit alleging that the cond itions of his pretrial confinement as well as certain actions taken during this period were in violation of both federal and state law. The first fou r counts of his complaint allege deprivation of hi s constitutional rights in violati on of 28 U.S.C. § 1983. These claims are based on the followin g all egations: 1) defendants denied Ferguson's request for medica l treatment; 2) the conditions of his pretrial con finement in Cape Girardeau County Jail constituted punishment in violation of the Due Process Clause; 3) Ferguson was denied access to a prison law li brary; and 4) Ferguson was deprived of outside access resulting in monetary loss. The fifth count of the suit alleges that the foreclosure and sale of his home on July 24, 198 9 const ituted the state tort of conversion. The defendants named in th e compla int are Ripley County; Nick Pepmiller, Sheriff of Ripley County ; Harold Headly; Cape Girardeau County; Norman Copeland, then Sheriff of Cap e Girardeau County; Ire ne Burghardt, the purchaser of Ferguson's foreclosed home; Log Cabin Realty/Century 21, the real estate 1

### Plaintiff v oluntarily dismissed his claim against Segatti on 2 

### August 30, 1994. 3 agency responsible for carrying out the sale of Ferguson's home; and Ray Segatti, a Century 21 agent.

2

On Septem ber 10, 1993, the United States District Court for th e Eastern District of Missouri granted summary judgment in favor of Norman Copeland and Cape Girardeau County. On April 12 , 1995, the district court issue d an order dismissing defendant Burghardt and granting summar y judgment to defendants Pepmiller, Headly, and Ri pley County. Ferguson now appeals.

ANALYSIS

A. Count II: Pretrial Confinement in Cape Girardeau County Jail

Count II of Ferguson's complaint alleges that the conditions in the Cape Girardeau County Jail constituted punishment before a conviction in violation of his rights to due process of law. The district court ordered summary judgment in f avor of Cape Girardeau County and Norman Copeland on two bas es: 1) failure to allege that the conditions were pursuant to a county policy or that Copeland had a role in creating or maintaining the conditions, and 2) the pre-trial confinement did not constitute punishment

. We affirm the summary judgment on the latter ground. Therefore, we need not address what must be alleged regarding the direct responsibility of th e county or the county sheriff with respect to the conditions of the county jail. Nor do we need to address whether the district court should hav e permitted the plaintiff to amend his complaint to allege any such requisit e facts.
We review a district court's grant o f summary judgment de novo. See United States ex rel. Glass v. Medtronic, Inc. , 957 F.2d 605, 607 (8th Cir

. 1992). Thus, the question before this court is

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whe ther the record, when viewed in the light most favorable to th e nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to ju dgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett , 477 U.S. 317, 32 3 (1986).
Specifically, Ferguson alleges that, upon his transfer to the Cap e Girardeau County Jail on May 17, 1989, he was co nfined to a 5-1/2 by 5-1/2 foot cell without a toilet or a sink and was forced to sleep on a mat on the floor under bright lights, which were on twenty-four hours a day

. Ferguson also alleges that he was denied the privileges enjoyed by other priso ners, including communication with other prisoners and yar d pr ivileges. Although there is some factual disputes as to thes e allegations, for the purposes of summary judgment, we take all facts and reasonable inferences in the light most favorable to the nonmoving party. See Ruby v. Springfield R-12 Public Sch. Dist. , 76 F.3d 909, 911 (8th Cir. 1996).

In respo nse, the county submitted an affidavit of Robert C. Scott , the Assistant Jail Administrator during the time of Ferguson's confinement

. In that affidavit, Scott asserted that Ferguson was confined upon hi s arrival in the vestibule area of the jail, where he could remain unde r consta nt observation, due to concern for Ferguson's medical conditio n (Ferguson had been complaining of chest pains) as well as the perceive d danger that Ferguson represented. (Aff. of Robert C. Scott, ¶ 13). On Ma y 30t h, Ferguson was permitted to move to a regular cell in the maximu m security wing of the jail. Id. at ¶ 24. Althou gh there was no steel bunk in the vestibule cell , Ferguson was provided with a standard mattress and pillow. Id. at ¶ 15. Ferguson was allowed to use bathroom facilities upo n request. Id. at ¶ 17. Despite his complaint of the constant light, he wa s observed sleeping ninety-three hours of the fourteen days spent in th e vestibule. Id. at ¶ 21. Ferguson was also allowed out of the vestibule for various

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purposes approximately forty-nine hours over the fourteen-day period. Id. at ¶ 20. These factual assertions are uncontradicted by the plaintiff

. Althou gh the moving party has the burden of showing that there is n o genuine issue of fact, the nonmoving party may not rest on allegations, bu t must set f orth specific facts sufficient to raise a genuine issue fo r trial. See Trindle v. Caudell , 56 F.3d 966, 969 (8th Cir. 1995).

Conditions of pretrial confinement are impermissible if the y
con stitute punishment as determined by the due process standards of th e Fifth and Fourteenth Amendments. See Bell v. Wolfish , 441 U.S. 520 (1979)

. "[I]f a particular condition or restriction of pretrial detention i s
reason ably related to a legitimate governmental objective, it does not , without more, amount to `punishment.'" Id. at 539. In evaluating th e conditions, the court must look to a number of f actors, including the size of the detainee's liv ing space, the length of the confinement, the amount of tim e spent in the confined area each day, and the opportunity fo r exercise. See A.J. v. Kierst , 56 F.3d 849, 854-55 (8th Cir. 1995 ) (citations omitted). Ferguson alleges that he was confined to a space of just over thirty square feet. Although this fig ure raises the question of impermissible pretrial confinement, see Campbell v. Cauthron , 623 F.2d 503 , 506-07 (8th Cir. 1980), the totality of the circumstances--which include the relative short du ration of the confinement, the necessity to keep the deta inee under observation for both his medical condition as well a s general safety concerns, and the amount of time that he spent out of the cell--supports the assertion of legitimate governmental interest, see Bell , 441 U.S. at 539, and therefore, does not constitute a violation o f Ferguson 's due process rights. Nor is the use of a floor mattress fo r thir teen nights, when viewed in the totality of the circumstances, a violation of Ferguson's due process rights. Cf. Kierst , 56 F.3d at 855-56

. Thus, we affirm the district court's order of summary judgment on thi s count.

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B. Counts I, III & IV

We also affirm the district court's order of summary judgment o n Counts I, III, and IV. Although amendment of a complaint should be allowe d liberally to ensure that a case is decided on it s merits, Chestnut v. St. Louis County, Mo. , 656 F.2d 343, 349 (8th Cir. 1 981), there is no absolute right t o amend. Thompson-El v. Jones , 876 F.2d 66, 67 (8th Cir. 1989)

. We review the district court's decision for an abuse of discretion. Zenit h Radio Corp. v. Hazeltine Research, Inc. , 401 U.S. 321, 330 (1971). In thi s case, Ferguson never asked the court for permiss ion to amend. Instead, in response to the defendants' motion for summary judgment, Ferguson requeste d that any dismissal be without prejudice to refil ing. While the failure to make a formal motion to amend may not be preclusive, see McLaughlin v

. Anderson , 962 F.2d 187, 195 (2d Cir. 1992) ("the lack of a formal motion to amend is not sufficient ground for a district court's dismissal without leave to amend, so long as the plaintiff has mad e its willingness to amend clear"), the plaintiff's clear willingness is not readily apparent from th e
recor d. Moreover, permission need not be granted after undue delay o r where amendment would be futile. Foman v. Davis , 371 U.S. 178, 182 (1962)

. In light of these con siderations, we hold that the district court did not abuse its discretion.

C. Count V

The district court dismissed Count V for lack of subject-matte r jurisdiction. Although we concur with the district court as to the lack of supplemental juris diction, as provided by 28 U.S.C. § 1367 (1994), the questi on of diversity jurisdiction is more difficult given that th e plai ntiff has asserted diversity of citizenship. Complaint ¶¶ 4, 5

. Therefore, we remand this count to the district court for a finding o f jurisdictional facts. See Osborn v. United Stat es , 918 F.2d 724, 730 (8th Cir. 1990).

### 7 CONCLUSION
For the above-stated reasons, we affirm the district court's de cision with regard to Counts I through IV and remand plaintiff's claim as stated in Count V of his complaint for further proceedings consistent with this opinion.

A true copy.

Attest:

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