## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 21 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BOBBY WOODS CRAIG, JR.,

Plaintiff - Appellant,

v. JOHN EBERLY, Sheriff Otero County, Defendant - Appellee,

--------------------------- UNITED STATES OF AMERICA,

Intervenor. No. 97-1308

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D. Ct. No. 95-M-368)
Elizabeth Alexander (Ayesha Khan, on the briefs), A CLU National Prison Project, Washington, DC, appearing for Appellant. Josh Adam Marks (David R. Brougham and Tracy P. Rob inson, with him on the brief), Hall & Evans, Denver, Colorado, appearing f or Appellee. Peter R. Maier, Attorney, Civil Division, United St ates Department of Justice (Frank W. Hunger, Assistant Attorney General, HenryL. Solano, United States Attorney, and Barbara L. Herwig, Attorney, Civil Di vision, United States Department of Justice, with him on the brief), appe aring for Intervenor.- 2 -

Before TACHA , BRORBY , and KELLY , Circuit Judges.

TACHA , Circuit Judge.

Plaintiff Bobby Woods Craig, Jr. appeals the order of the district court dismissing his claim for monetary damages under 42 U.S.C. § 1983 for alleged constitutional deprivations he suffered while a pre trial detainee at the Otero County Jail in LaJunta, Colorado. On appeal, plain tiff argues alternatively that: (1) the district court erred in retroactively apply ing 42 U.S.C. § 1997e(e), a provision of the Prison Litigation Reform Act (“PLRA”) of 1995, to his claim; (2) that even if § 1997e(e) applies to his claim, he ha s met its requirements; and (3) that if he cannot meet the requirements of § 1997e( e), it is unconstitutional as applied to him. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and, finding § 1997e(e) does not apply retroactively, we reverse the district court’s grant of summary judgment. Background Mr. Craig claims he was subjected to unconstitution al conditions of confinement while incarcerated at the Otero County Jail. In particular, Mr. Craig alleges that during his time of confinement: (1) he was placed in a cell measuring eleven by fifteen feet with five or six other men f or twenty-four hours a day; (2) his bed linens were never cleaned nor exchanged; (3 ) he was permitted only two- 3 -

showers a week in an unsanitary shower stall; (4) the sink in his cell was frequently clogged, thereby preventing basic hygien e; (5) his cell had poor ventilation; and (6) he was allowed out-of-cell rec reation on only two occasions, causing him to gain weight. Although the parties d ispute the relevant period of Mr. Craig’s incarceration for the purposes of this suit, it was somewhere between two-and-a-half and six months. On February 14, 1995, before the passage of the PLRA, Mr. Craig filed a § 1983 claim against the defendant-appellee John Eb erly, Sheriff of Otero County, in his individual capacity, and against Otero County. The complaint requests monetary relief in the amount of $500,000 for the “ pain and suffering” he endured in Otero County’s allegedly “inhumane and unsanitary” jail. On January 19, 1996, Sheriff Eberly filed a Motion to Dismiss or A lternatively Motion for Summary Judgment, arguing that plaintiff’s allegati ons did not establish a constitutional violation and that he was entitled t o qualified immunity. The motion was referred to a magistrate judge, who reco mmended granting partial summary judgment. The district court dismissed the claim against Otero County but rejected the magistrate’s recommendation as to Sheriff Eberly and remanded the case back to the magistrate for further discove ry and appointment of counsel for the plaintiff. On November 14, 1996, Sheriff E berly filed a second summary judgment motion which raised the same arguments pre sented in his first motion- 4 -

and an additional argument that 42 U.S.C. § 1997e(e ), which prohibits prisoners from bringing suits for mental or emotional injury suffered during incarceration without a prior showing of physical injury, barred plaintiff’s claim. The district court referred this motion to the magistrate, who r ecommended that it be denied. The district court rejected the magistrate’s recomm endation and granted defendant’s motion on the grounds that § 1997e(e) b arred Mr. Craig’s § 1983 claim. This appeal followed. Standard of Review We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. See Byers v. City of Albuquerque 150 F.3d 1271, 1274 (10th Cir.1998). Summary judg ment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). We view the evidence and draw reasonable inferences therefrom in the light m ost favorable to the nonmoving party. See Byers , 150 F.3d at 174. Although the movant must show the absence of a genu ine issue of material fact, he or she need not negate the nonmovant’s cla im. See, e.g. , Jenkins v. Wood , 81 F.3d 988, 990 (10th Cir. 1996). Once the movant carries this burden,- 5 -

the nonmovant cannot rest upon his or her pleadings , but “must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which [he or she] carries the burden of proof.” Id

. “The mere existence of a scintilla of evidence in support of the nonmovant’s position is insufficient to create a dispute of fact that is ‘genuine’; an issu e of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant.” Lawmaster v. Ward , 125 F.3d 1341, 1347 (10th Cir. 1997).
I. This court should not address the constitutionalityof 42 U.S.C. § 1997e(e) unless it finds that § 1997e(e) applies retroactive ly to cases filed prior to the passage of the PLRA. See United States v. Cusumano , 83 F.3d 1247, 1250 (10th Cir. 1996) (“[F]ederal courts should address consti tutional questions only when necessary to a resolution of the case or controvers y before it.”). The issue of whether § 1997e(e) applies retroactively is one of first impression in this circuit. In general, there is a strong judicial presumption against the retroactive application of new laws to pending cases. See Federal Deposit Insurance Corp. v. UMIC, Inc. , 136 F.3d 1375, 1385 (10th Cir. 1998), cert. denie d , 67 U.S.L.W. 3105 (U.S. Nov. 2, 1998). Against this backdrop, the Supreme Court, in Landgraf v. USI Film Products , 511 U.S. 244 (1994), and Lindh v. Murphy , — U.S. — , 117 S. Ct. 2059 (1997), established a three-part te st for determining whether a- 6 -

statute may apply retroactively. See UMIC , 136 F.3d at 1385-86. First, the court must determine “whether Congress has expressly pres cribed the statute’s proper reach.” Landgraf

, 511 U.S. at 280; accordUMIC , 136 F.3d at 1386. Second, if Congress did not expressly speak to the issue, the court employs normal rules of statutory construction to ascertain the statute’s t emporal scope. See Lindh , — U.S. at — , 117 S. Ct. at 2063; UMIC , 136 F.3d at 1386. Finally, in situations where statutory interpretation techniques do not an swer the question of the statute’s temporal scope, the court must consider w hether the statute will have a retroactive effect. See Landgraf , 511 U.S. at 280; UMIC , 136 F.3d at 1386. A statute has a retroactive effect if it “would impai r rights a party possessed when he acted, increase a party’s liability for past con duct, or impose new duties with respect to transactions already completed.” Landgr af , 511 U.S. at 280. If the court finds that the statute has a retroactive effe ct, it triggers the traditional judicial presumption against retroactivity and the new law will not be applied to pending cases. See id. Nonetheless, statutes conferring or ousting juris diction or involving rules of procedure are generally applied retroactively. See id. at 274-
75. Utilizing the Landgraf /Lindhtest, we find that 42 U.S.C. § 1997e(e) cannot be applied retroactively to pending cases. Section 1997e(e) states: “No federal civil actionmay be broughtby a prisoner confined in a jail, prison, or other- 7 -

correctional facility, for the mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U. S.C.A. § 1997e(e) (emphasis added). Nowhere in § 1997e(e)’s language is there an express command to apply it retroactively, as is the case with other provisi ons of the PLRA. See Hadix v. Johnson , 143 F.3d 246, 254 (6th Cir. 1998), cert. granted , 67 U.S.L.W. 2183 (U.S. Nov. 16, 1998) (No. 98-262) (noting that section 80 2 of the PLRA, 18 U.S.C. § 3626, specifically states that it shall apply to pending cases, whereas section 803(d) of the PLRA, which includes § 1997e(e), does not). Indeed, § 1997e(e) contains neither an express mention of retroactivity nor an effective date. See Thomas v. Hill , 963 F. Supp. 753, 757 (N.D. Ind. 1997); Harris v. Lord , 957 F. Supp. 471, 474 (S.D.N.Y. 1997). Therefore, the fir st prong of the Landgraf /Lindh test is not satisfied. We find, however, that the question of § 1997e(e)’s temporal scope can be resolved through normal principles of statutory con struction. The plain language of § 1997e(e) compels its prospective application. The language “may be brought” clearly indicates that § 1997e(e) applies only to cases commenced after its enactment, not to those pending at the time

. See Swan v. Banks , — F.3d —, 1998 WL 813376, at *1 (9th Cir. Nov. 25, 1998) (“th e plain meaning of the section is that it applies only to actions that wer e brought after enactment of the PLRA”); Friedland v. Fauver , 6 F. Supp. 2d 292, 310 (D.N.J. 1998) (“The plain- 8 -

language of § 1997e(e) limits its application to th e bringing of a civil action in this Court. The language does not authorize or rel ate to the dismissal of an action or to the entry of summary judgment for defendants in an action that has already been brought.”); cf. Bishop v. Lewis , 155 F.3d 1094, 1095-96 (9th Cir. 1998) (interpreting nearly identical language in § 1997e( a) and concluding that its plain meaning made it prospective); Wright v. Morris , 111 F.3d 414, 418 (6th Cir. 1997), cert. denied , 118 S. Ct. 263 (1997) (same). Thus, under the se cond prong of the Landgraf

/Lindhtest, we conclude that § 1997e(e) does not apply retroactively. Our recent decision in Garcia v. Silbert , 141 F.3d 1415 (10th Cir. 1998), bolsters our conclusion regarding the prospective l anguage of § 1997e(e). In Garcia , we held that another provision of the PLRA, 28 U. S.C. § 1915(g), applied prospectively because “the plain language of § 1915 (g) restricts a prisoner’s ability to ‘ bringa civil action or appeal a judgment in a civil act ion’ in forma pauperis.” Id. at 1416 (quoting 28 U.S.C. § 1915(g)) (emphasis inoriginal). The language in § 1997e(e) (“no civil action may be bro ught”) is sufficiently similar to that in § 1915(g) (“In no event shall a prisonerbring”) that our decision in Garciavirtually compels our conclusion in this case. Because we find that § 1997e(e) does not apply retr oactively to Mr. Craig’s § 1983 claim, we need not address the constitutiona lly of § 1997e(e), its scope, or- 9 -

whether Mr. Craig has otherwise met its requirement s. II. Having concluded that § 1997e(e) does not bar Mr. C raig’s § 1983 claim, we address the defendant’s contention that summary judgment is nonetheless appropriate because plaintiff’s claim fails on its merits. The underlying basis of plaintiff’s § 1983 claim is that he was subjected t o unconstitutional conditions of confinement during his incarceration at the Otero C ounty Jail. Although the Due Process Clause governs a pretrial detainee’s claim of unconstitutional conditions of confinement, see Bell v. Wolfish , 411 U.S. 520, 535 (1979), the Eighth Amendment standard provides the benchmark for such claims. See McClendon v. City of Albuquerque , 79 F.3d 1014, 1022 (10th Cir. 1996). The Eighth Amendment requires jail officials “to provide human e conditions of confinement by ensuring inmates receive the basic necessities o f adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates’ safety.” Barney v. Pulsipher , 143 F.3d 1299, 1310 (10th Cir. 1998). To hold a jailer personally liable for violating an in mate’s right to humane conditions of confinement, a plaintiff must satisfy two requir ements, consisting of an objective and subjective component. See id. The objective component requires that the alleged d eprivation be “sufficiently serious.” Wilson v. Seiter , 501 U.S. 294, 298 (1991). Although- 10 -

what constitutes cruel and unusual punishment underthe Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Rhodes v. Chapman , 452 U.S. 337, 346 (1981) (quoting Trop v. Dulles , 356 U.S. 86, 101 (1958) (plurality opinion)), the Constitution “does not mandate comfortable prisons, ” id. at 349. To the contrary, jail conditions may be “‘restrictive and even harsh ’” without violating constitutional rights. Barney , 143 F.3d at 1311 (quoting Rhodes , 452 U.S. at 347). Indeed, “only those deprivations denying the minimal civilized measure of life’s necessities . . . are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson , 501 U.S. at 298 (internal quotation marks and citation omitted); accordFarmer v. Brennan , 511 U.S. 825, 834 (1994). This inquiry turns not only on the severity of the alleg ed deprivations, but also on their duration. See Barney , 143 F.3d at 1311 (“An important factor in determi ning whether the conditions of confinement meet constitutional standards is the length of the incarceration.”). Additionally, when, as in this case, a claim involves numerous alleged inhumane conditions, we must bear in mind that “[s]ome conditions of confinement may establish an Eighth A mendment violation ‘in combination’ when each would not do so alone, but o nly when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Wil son , 501 U.S. at 304.- 11 -

However, “[n]othing so amorphous as ‘overall condit ions’ can rise to the level of cruel and unusual punishment when no specific depri vation of a single human need exists.” Id. at 305. The subjective component requires the jail official to have a “sufficiently culpable state of mind.” Id. at 297. In the context of prison-conditions claim s, the required state of mind is one of “‘deliberate i ndifference’ to inmate health and safety.” Farmer , 511 U.S. at 834 (quoting Wilson , 501 U.S. at 302-03). In other words, the jailer is liable only if he or she “know s of and disregards an excessive risk to inmate health and safety; the official mustboth be aware of facts from which the inference could be drawn that a substanti al risk of serious harm exists, and he must also draw the inference.” Id. at 837. “It is not enough to establish that the official should have known of the risk of harm.” Barney v. Pulsipher , 143 F.3d 1299, 1310 (10th Cir. 1998). As alluded to above, in determining whether a pretr ial detainee has sufficiently satisfied the Eighth Amendment standar d, it is particularly important to develop an adequate record on factual disputes r elated to the seriousness and length of the alleged deprivations, for these are e ssential elements of a conditions of confinement claim. On this record, both of thes e elements involve disputed issues of fact that preclude summary judgment at th is point. The record indicates that with respect to the natur e and seriousness of Mr.- 12 -

Craig’s alleged deprivations, numerous factual issu es are disputed. For example, Mr. Craig alleges that he was allowed only two one- hour periods of out-of-cell recreation during his confinement, whereas the defe ndant argues that each prisoner, including Mr. Craig, was given one hour o f outside recreation time per week unless it was too cold. Mr. Craig also claims that the sink in his cell was often clogged, thereby preventing basic hygiene, but the defendant argues that the sink was sufficient for hygiene purposes because itran clean water and Mr. Craig had access to cleaning supplies. Perhaps more importantly, the relevant periods of t ime Mr. Craig was subjected to the alleged unconstitutional condition s of confinement are disputed. Defendant argues that plaintiff’s relevant period o f incarceration in the Otero County Jail for the purposes of this suit is roughl y two-and-a-half months and is comprised of two distinct periods of confinement, F ebruary 15, 1994, to March 15, 1994 (4 weeks), and April 15, 1994, to June 3, 1994 (7 weeks). According to defendant, plaintiff spent the period from March 15 , 1994, through April 15, 1994, housed at the Centennial Mental Health Facili ty. Plaintiff, on the other hand, argues that his relevant period of incarcerat ion for the purposes of this suit is approximately six months because he claims he wa s confined in the Otero County Jail for the entire period from February 15, 1994, through June 3, 1994, and for additional periods between November 1994 an d January 1995. The- 13 -

difference between enduring certain harsh condition s for seven weeks versus six months may be constitutionally significant. Furthe rmore, it is not clear from the record that all of plaintiff’s alleged deprivations lasted the entire period of incarceration. For example, plaintiff claims that his sink was frequently clogged, but stops short of saying that it was always clogged. Because these important issues of fact remain in dispute, we conclude that it is premature to grant summary judgment on the merits of this case. Conclusion For the above reasons, the order of the district co urt granting summary judgment in favor of defendant is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opin ion.