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), ACLU National Prison Project,

Washington, DC, appearing for Appellant.

Josh Adam Marks (David R. Brougham and Tracy P. Robinson, with him on the

brief), Hall & Evans, Denver, Colorado, appearing for Appellee.

Peter R. Maier, Attorney, Civil Division, United States Department of Justice

(Frank W. Hunger, Assistant Attorney General, Henry L. Solano, United States

Attorney, and Barbara L. Herwig, Attorney, Civil Division, United States

Department of Justice, with him on the brief), appearing for Intervenor.
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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 pretrial detainee at the Otero

County Jail in LaJunta, Colorado. On appeal, plaintiff argues alternatively that:

(1) the district court erred in retroactively applying 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 has 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 unconstitutional 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 for twenty-four hours a day; (2)

his bed linens were never cleaned nor exchanged; (3) he was permitted only two
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showers a week in an unsanitary shower stall; (4) the sink in his cell was

frequently clogged, thereby preventing basic hygiene; (5) his cell had poor

ventilation; and (6) he was allowed out-of-cell recreation on only two occasions,

causing him to gain weight. Although the parties dispute 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 Eberly, 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 Alternatively Motion for

Summary Judgment, arguing that plaintiff’s allegations did not establish a

constitutional violation and that he was entitled to qualified immunity. The

motion was referred to a magistrate judge, who recommended 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 discovery and appointment of counsel

for the plaintiff. On November 14, 1996, Sheriff Eberly filed a second summary

judgment motion which raised the same arguments presented in his first motion
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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 recommended that it be denied. 

The district court rejected the magistrate’s recommendation and granted

defendant’s motion on the grounds that § 1997e(e) barred Mr. Craig’s § 1983

claim. This appeal followed.

Standard of Review

We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. See Byers v. City of

Albuquerque 150 F.3d 1271, 1274 (10th Cir.1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if 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 most favorable to the

nonmoving party. See Byers, 150 F.3d at 174. 

Although the movant must show the absence of a genuine issue of material

fact, he or she need not negate the nonmovant’s claim. See, e.g., Jenkins v.

Wood, 81 F.3d 988, 990 (10th Cir. 1996). Once the movant carries this burden,
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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 issue 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 constitutionality of 42 U.S.C. § 1997e(e)

unless it finds that § 1997e(e) applies retroactively 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 constitutional questions only when

necessary to a resolution of the case or controversy 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. denied, 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 test for determining whether a
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statute may apply retroactively. See UMIC, 136 F.3d at 1385-86. First, the court

must determine “whether Congress has expressly prescribed the statute’s proper

reach.” Landgraf, 511 U.S. at 280; accord UMIC, 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 temporal 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 answer the question of the

statute’s temporal scope, the court must consider whether 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 impair rights a party possessed when

he acted, increase a party’s liability for past conduct, or impose new duties with

respect to transactions already completed.” Landgraf, 511 U.S. at 280. If the

court finds that the statute has a retroactive effect, 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 jurisdiction or

involving rules of procedure are generally applied retroactively. See id. at 274-

75. 

Utilizing the Landgraf/Lindh test, we find that 42 U.S.C. § 1997e(e) cannot

be applied retroactively to pending cases. Section 1997e(e) states: “No federal

civil action may be brought by a prisoner confined in a jail, prison, or other
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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 provisions 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 802 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 first 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 construction. 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) (“the plain meaning of the

section is that it applies only to actions that were brought after enactment of the

PLRA”); Friedland v. Fauver, 6 F. Supp. 2d 292, 310 (D.N.J. 1998) (“The plain
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language of § 1997e(e) limits its application to the bringing of a civil action in

this Court. The language does not authorize or relate 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 second prong

of the Landgraf/Lindh test, 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 language 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 ‘bring a civil action or appeal a judgment in a civil action’ in forma

pauperis.” Id. at 1416 (quoting 28 U.S.C. § 1915(g)) (emphasis in original). The

language in § 1997e(e) (“no civil action may be brought”) is sufficiently similar

to that in § 1915(g) (“In no event shall a prisoner bring”) that our decision in

Garcia virtually compels our conclusion in this case. 

Because we find that § 1997e(e) does not apply retroactively to Mr. Craig’s

§ 1983 claim, we need not address the constitutionally of § 1997e(e), its scope, or
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whether Mr. Craig has otherwise met its requirements.

II. 

Having concluded that § 1997e(e) does not bar Mr. Craig’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 to unconstitutional conditions of

confinement during his incarceration at the Otero County 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 humane conditions of confinement

by ensuring inmates receive the basic necessities of 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 inmate’s right to humane conditions

of confinement, a plaintiff must satisfy two requirements, consisting of an

objective and subjective component. See id.

The objective component requires that the alleged deprivation be

“sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). Although
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what constitutes cruel and unusual punishment under the 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); accord Farmer v. Brennan, 511 U.S. 825, 834 (1994). This

inquiry turns not only on the severity of the alleged deprivations, but also on their

duration. See Barney, 143 F.3d at 1311 (“An important factor in determining

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 Amendment violation ‘in

combination’ when each would not do so alone, but only when they have a

mutually enforcing effect that produces the deprivation of a single, identifiable

human need such as food, warmth, or exercise.” Wilson, 501 U.S. at 304. 
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However, “[n]othing so amorphous as ‘overall conditions’ can rise to the level of

cruel and unusual punishment when no specific deprivation 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 claims,

the required state of mind is one of “‘deliberate indifference’ 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 “knows of and disregards an excessive

risk to inmate health and safety; the official must both be aware of facts from

which the inference could be drawn that a substantial 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 pretrial detainee has

sufficiently satisfied the Eighth Amendment standard, it is particularly important

to develop an adequate record on factual disputes related to the seriousness and

length of the alleged deprivations, for these are essential elements of a conditions

of confinement claim. On this record, both of these elements involve disputed

issues of fact that preclude summary judgment at this point.

The record indicates that with respect to the nature and seriousness of Mr.
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Craig’s alleged deprivations, numerous factual issues 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 defendant argues that each

prisoner, including Mr. Craig, was given one hour of 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 it ran clean water and Mr. Craig

had access to cleaning supplies. 

Perhaps more importantly, the relevant periods of time Mr. Craig was

subjected to the alleged unconstitutional conditions of confinement are disputed. 

Defendant argues that plaintiff’s relevant period of incarceration in the Otero

County Jail for the purposes of this suit is roughly two-and-a-half months and is

comprised of two distinct periods of confinement, February 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 Facility. Plaintiff, on the other

hand, argues that his relevant period of incarceration for the purposes of this suit

is approximately six months because he claims he was 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 and January 1995. The
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difference between enduring certain harsh conditions for seven weeks versus six

months may be constitutionally significant. Furthermore, 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 court granting summary

judgment in favor of defendant is REVERSED and the case is REMANDED for

further proceedings not inconsistent with this opinion.