NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0713n.06
No. 10-3100
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

AL AN F RANCI S, : : Plaintiff-Appellant, : : : ON APPEALFROM THE
v. : UNI TED STATES DI STRI CT : COURT FOR THE N ORTHERN : DI STRI CT OF OH I O THOMAS AL TI ERE, : : Def endant- Appellee

. :

BEFORE: BOGG S and WHITE , Circuit Judges; BERTEL SMAN, Distr ict Judge. *


### O P I N I O N

P ER CURIAM
. Plaintiff-Appellant Alan Fr ancis attempted suicide twice in twenty -four hours while he was
housed at the Trumbull County J ail. Specifica lly , Fr ancis tried to hang himself with blankets in his
cell. He was resc ued by office rs and other inmates, and afte r he was examined at a hospital, he was

returne d to his cell and provided some form of paper outfit and a three -ply paper blanket given to
suicidal inmates. Once back in his cell, P laintiff t old a C orre ctions Offic er that h e wa s n o t go ing

to sta y in prison f

or twenty y ear s and that he was g oing to “ try something ag ain.” L ater that night,

a C orre ctions Offic er found Fr ancis with part of the paper g own wra pped around his neck.

T h e H o n o r a b l e W i l l i a m O
. B e r t e l s m a n , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e E a s t e r n D i s t r i c t o f K e n t u c k y , s i t t i n g * b y d e s i g n a t i o n .No. 10-3100

Francis v. Altiere Consequently , the Assistant Warden on duty o rd ered the Correc tions Offic er to remove even the

paper blanket and g own. Additionally , for rea son s t h at are not entirely clea r from the rec ord,
Fr anci s wa s h o used i n a cell that did not contain a mattress and so was force d to sleep either on a
stainless steel bed or

the conc rete floor.
Plaintiff broug ht suit pro se pursuant to 42 U.S.C. § 1983 ag ainst Thomas Altiere, the Sheriff
of Trumbull County

. I n ad d i t ion to the bedding and clothing claim, Plaintiff asser ted numerous
al l egations over the course of three documents. The mag istrate judge , to whom the parties 1

consente d, considere d all three documents as the “Complaint.” See Br

. of Appellee at 1 (citing Doc.
#74 at 1). Plaintiff’s claims fall into three g ener al cate g ories: Eig hth Amendment claims based on the depr ivations of bedding and clothing; Eig hth Amendment claims base d on other c onditions of
confine ment ; and Fir st Amendment-re lated cla ims.

2
Altiere filed a motion to dismiss all of Plaintiff’s claims, which the mag istrate judge g rante d in pa rt and denied in pa

rt. Orde r, at 13, R.74. Specifica lly , the mag istrate judge dismiss ed cer tain
of t he “other” Eighth Amendme nt conditions claims without prejudice : (1) unsanitary conditions; (2 ) exercise; (3) shower; (4) clothing and bedding ; and (5) medical car e claims. Henc e, th e o n l y Eig hth Amendment claim rema ining afte r the mag istrate judge ’s Orde r was Plaintiff’s bedding and clothing claim. There aft er , De fenda nt moved for summary judgme nt on this claim, and the

C i t a t i o n s t o “ D o c
. ” r e f

l e c t t h e d i s t r i c t c o u r t C M / E C F n u m b e r s f o r t h e d o c u m e n t s
. 1 S p e c i f i c a l l y , a m o n g o t h e r t h i n g s , P l a i n t i f f a l l e g e d t h e f

o l l o w i n g : t h a t h e w a s d e n i e d a c c e s s t o a n t i

- a n x i e t y m e d i c i n e 2 h e h a d b e e n p r e s c r i b e d ; t h a t t h e a d m i n i s t r a t i o n k e p t h i m i n s u i c i d e l o c k d o w n f o r 2 0 9 d a y s , w i t h o n l y t w o r e e v a l u a t i o n s , w h e n t h e u s u a l p r o c e d u r e r e q u i r e s a w e e k l y r e e v a l u a t i o n ; t h a t h e w a s f o r c e d t o g o w i t h o u t a s h o w e r f o r t h i r t e e n d a y s ; t h a t h e w a s d e n i e d a c c e s s t o t h e l a w l i b r a r y ; t h a t f e c a l m a t t e r o n t h e w a l l s a n d f l o o r s w a s c l e a n e d i n e f

f e c t i v e l y b y o t h e r i n m a t e s ; t h a t h e w a s d e n i e d a n y r e c r e a t i o n a l a c t i v i t y f o r t h e e n t i r e t i m e h e w a s i n c a r c e r a t e d ; a n d t h a t h e r e q u e s t e d g r i e v a n c e f

o r m s b u t w a s b l a t a n t l y i g n o r e d

. C o m p l a i n t , R

. 1 ; S t a t e m e n t o f C l a i m s , R

. 3 ; E x t e n d e d S t a t e m e n t o f C l a i m s , R

. 7

. 2No. 10-3100

Francis v. Altiere
mag istrate judge enter ed s ummary judgme nt in favor of Def endant on the Plaintiff’s bedding and clothing c laim, as well. See id. at 2 (c iting Doc . #92).
Plaintiff timely appea led, seeking permission to proce ed in f o r ma p a uperis and asser

ting

t h ree assig nments of err or: (1) the district court overlooke d sever al claims; (2) the distr i ct co u rt

er re d in g ranting summary judgme nt when the fac ts of this case are like those in Spencer v. Bouchard, 449 F.3d 721 (6th Cir. 2006), abrogated on other grounds by Jones v. Bock , 549 U.S. 199 (2 0 0 7 ); and (3) some circ uits require “notice” to prisoners about the Rule 56 summary judgm en t require ments, something the district c ourt here did not affor d Plaintiff.
For the rea sons stated below, we g rant Plaintiff in forma pauperis status on appea l, reve rse
the district court’s e ntry

of summary

judgme nt, and re mand for f urther pr ocee dings.
I.
Def endant conce des that the “trial court never adjudicate d Fr ancis’ alleg ations not based on
the Eig hth Amendment.” Br

. of Appellee at 11. We conclude that the mag istrate judge ’s failure to
addre ss claims was not limited to non-Eighth Amendme nt claims.
P l aintiff char acte rizes the claims that the mag istrate judge overlooke d as: (a) First
Amendment claims based on fre edom of relig ion, fre edo m of speec h, and fre edom to petition for
redr ess; (b) Six th a

nd Four teenth Amendment claims of denial of rig hts to acc ess to the courts and

a notary public, and not to have leg al mail opened outside his prese nce; (c) a Due Process violation
for not having been aff

orded the opportunity to challeng e the withholding of relig ious materia ls; and (d) an Eig hth Amendment claim “for being subjected to disease of the mouth wher ein appellant was
g iven a plastic thimble for a toothbrush with extremely flimsy bristles.” B r. of Appe llant at 1-2.

3No. 10-3100

Francis v. Altiere
Plaintiff raised the toothbrush claim in one of his supple m ental documents along with a plethora of other assertions. See Doc. #7 at 6. The magistra te j udg e d i d n o t s p ec i fi cally mention
the toothbrush an d sever al of Plaintiff’s other asser tions when dismiss ing all but the Eig hthAmendment beddi n g and clothing claims. I nstead, the mag istrate judge only discussed some of
those alleg ations and did not explain why revie w was limit ed to cer tain ones. Compare Doc. #7 at
1-12 with Doc. #74 a t 6-11. Thus, it appea

rs that the mag istrate judge over l o o k ed Eig hth Amendment claims as well.
Since rema

nd is conce dedly war

rante d for some claims, on rema nd the district court should asce rtain

prec isely which cla ims were ove rlooked.
II.
Plaintiff next asser

ts that the mag istrate judge err ed in g ranting summary judgme nt in favor
of Def endant on the bedding and clothing claim. We revie w a g rant of summary judgme nt de novo , employ ing the same standard as the court below. See Dixon v. Gonzales, 481 F.3d 324, 330 (6th Cir. 2007). That is, summary judgme nt is appropr iate wher e the rec ord shows that “ther e is no g enuine
issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.”
Fe d. R. Civ. P. 56(c)

. Viewing the evidenc e in the light most favor able to Plaintiff, Def endant bore
the burden of proving the absenc e of any g enuine issue of materia l f act. I n response , Plaintiff w as require d to prese nt “sig nificant probative evidenc e” showing more than some “metaphy sical doubt”
as to the mater ial fac ts. Id.
An Eig hth Amendment condit ions-of-c onfinement claim consists of two prong s, both of
which must be met to merit relief

. Fr om an objective standpoint, the depriva tion m u s t be

4No. 10-3100

Francis v. Altiere
“suff iciently serious,” resulting in a denial of the “minimal civiliz ed measure of life’s nece ssities.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Spence r v. Bouchard, 449 F.3d 721, 728 (6th Cir. 2006), abrogat ed o n o t h er g r ounds by Jones v. Bock , 549 U.S. 199 (2007). Also, the prison
officia l's “state of mind [m ust be] one of delibera te indiffer ence to inmate health or safe ty .” Spence r, 449 F.3d a t 728 (internal quotation and c itation omit ted).
Plaintiff arg ues that he prese nted sufficie nt evidenc e to survive summary judgme nt for two

rea sons. First, since in Spence r the “mer e” alleg ation that the prison was “ver y cold” was sufficie nt,

so too does Plaintiff’s alleg ation that “it was ‘ver y cold’ in his cell” defe at summary judgme nt. Br

. of Appellant at 5. Second, Plaintiff was place d on suicide watch under those conditions perha ps for months, bey ond what wa s rea sonable for the purpose of preve nting a suicide. Id. He is imprec ise
and inconsist ent i n his alleg ations, both in the t rial court and on appea l, about the num ber of day s
he endure d the conditions. They rang e from a few day s to months. There in lies another rea son for 3

rema nd.
I n his verifie d complaint, Plaintiff asser ted that he was “plac ed in a cell naked without bedding , mattress or linen and made to sleep on [a] concr ete floor (48 day s).” Doc . 1 at 3. When
the mag istrate judge initially d eclined to dismiss these claims on Def endant’ s Rule 12(c) motion,
it noted t hat P laintiff allege d “fr om November 30, 2005 throug h J anuar y 1, 2006 , h e wa s p rovide ( sic ) with only a sleeve less paper towel vest and bottom as clothing

. . that he slept on the concr ete
floo r s i nce it was war

mer than the steel bunk [and] was not provided a mattress until J anuar y 2,

C o m p a r e B r i e f

A p p e l l a n t a t 6 ( “ h e h a d t o b e a w a k e f o r t w o a n d a h a l f

d a y s f r o m l a c k o f

a n y t h i n g
. . . i n a c e l l s o c o l d 3
t h a t h e c a n n o t l a y [ s i c ] d o w n a n d g o t o s l e e p c a u s i n g h i m t o b e u p f o r d a y s
. ” ) , w i t h i d

. a t 5 ( t h e “ o u t s i d e a g e n c y w h o c o n d u c t s t h e s o c a l l e d s u i c i d e w a t c h r e v i e w s
. . . c l e a r e d a p p e l l a n t t o b e r e l e a s e d f r o m s u i c i d e w a t c h o n A p r i l 8 2 0 0 5 , h o w e v e r , a p p e l l a n t w a s n o t r e l e a s e d f r o m t h e c o n d i t i o n s u n t i l J u n e 2 0 , 2 0 0 6

. ” )

.

5No. 10-3100

Francis v. Altiere
2006.” Do c. # 7 4 at 8

. The mag istrate judge further noted that it was unclea r from Plaintiff’s complaint “whe ther he is alleg ing two separ ate incidents of being without clothes in a cold cell ( i.e. , one p er i o d o f s i x d ay s and one of 48 day s)” and, for the purposes of the m otion, the di strict court “assume[d] two separate incidents are alleg ed.” Id. at 8, n.4.
As the mag istrate judge held in deny ing the motion t o dismiss , Plaintiff’s alleg ations
satisfied the objective prong of an Eig hth Amendment conditions-of-c onfinement claim. I n g ranting
the motion for summary judgme nt, the mag istrate judge held, howeve r, that Plaintiff’s claim failed
the subjective, delibera te-indiffe renc e prong
. Orde r at 5, R.92. When i t i ssued its summary judgme nt decision, howeve r, the mag istrate judge did not indicate what time fra mes h e was considering

. Def

endant also m akes no mention of any in his arg uments on appea l. I nstead, the

mag istrate judge relied exclusively on Def endant’ s leg itimate motivation to preve nt Plaintiff from
another suicide attempt in g rantingDef endant’ s motion for summary judgme nt.
T h e m ag istrate judge found the following undisputed fac ts conclusive of the deliberat e
indiffer ence question: Plaintiff did “not deny he attempted suicide; ” d i d n o t dispute “that the jail
house staff believed Plaintiff attempted t o co m m i t suicide first with a bed sheet and later with a
paper suicide g own;” did not dispute that “af ter the second perc eived suicide attem p t , De fendant
took awa y any items that Plaintiff could p o t entially use to commit suicide” until such time as
Plaintiff could be scre en ed by a mental health ag ency ; and did not dispute that staff acte d “in

acc ordanc e with jail proce dure and in further ance of the jail’s g oal to protec t the health and sa fety of its prisoners.” D oc. #92 at 4.

6No. 10-3100

Francis v. Altiere
What the mag istrate judge evidently found dispositi ve was the result in Daniels. See Daniels

v. W oodside , 3 9 6 F. 3 d 7 30, 736 (6th Cir. 2005). As he noted, in Daniels this Court found no
constitutional violation when jail sta ff confined a prisoner to “twenty -four hour lock-down,” deprive d him “of exercise ,” and dr essed him “in suicide g own that did not completely close in the
back.” See Doc. # 92 at 4 (interna l quotations and citation omitted). As that quotation reve als, the
duration of the Daniels depriva tion was for one day

. The Spence r decision, which the m agi s t ra t e judge did acknow ledg e, was decide d afte r Daniels, and in fac t cites Daniels, but did not consi der
Daniels conclusive of the delibera te-indiffe renc e prong
. I t cited Da niels in a footnote for the proposition that the s ame standards apply to pretrial de tainees, a

nd did not cite or di scuss Daniels

at all with respe ct to either prong of the Eig hth Amendment analy sis. See Spence r, 449 F.3d at 727-
30 & n.7.
Under Spence r , obvious and extreme conditions can constitute “deliber ate indiffer ence .” Id.

at 6. The mag istrate judge distinguished Spence r beca use Plaintiff did n o t p rese nt “any direc t or
indirect evidence as t o the t emper ature of hi s cell ... or t hat i t would have been obvious to any one
that sleeping on the floor in the Trumbull County J ail is an inhumane condition.” Orde r at 6, R.92.
I n Spence r, as here , no specific tempera ture rea ding was mentioned or proven, but there the pri s o n was so cold office rs wore their winter coats indoors. Moreove r, whene ver it snowed or
raine d, water leake d into the sleep i n g area and flooded it. This situation lasted “ continuously for

seve ral months (including all of Dec ember and J anuar y ), subject only to the occa sional relief of an

unseasona

bly war m day .” Spence r, 449 F.3d a t 728.

7No. 10-3100

Francis v. Altiere
Whil e the mag istrate judge ostensibly considere d Plaintiff’s claim about the depriva tion of
his clothing, bedding , and a m at t ress in combination, in rea lity , he addre ssed eac h condition in
isolation. For example, the mag istrate judge addre ssed the depriva tion of Plaintiff’s clothing, then
considere d the depriva

tion of the mattress, and then considere d the cold tempera tur e. He did not
consider the combined ef fec t of the leng th of time these conditions persisted, along with the other
rele vant verifie d asser

tions and evidenc e su b m i t t ed. A component of the Spence r delibera te
indiffer ence analy sis was the fac t that obvious objectively “seve re” conditions lasted for months,
and those conditions went unreme diated even in the fac e of inmate complaints and self help, while
office rs ac tively

obstructed inmates’ attempts to improve t heir circumstance s. I n other wor ds, we
think it plain t h at u n der Spence r, while it is appropr iate to consider asser ted depriva tions individually and in combination, the court should also consider the interre lationship betwee n the

sever e conditions and their duration, co u p led wit h any other relevant evidence in the record. The

mag istrate judge did not do so, and the rec ord on appea l is not sufficie ntly clea r for us to make that
deter mination in the first instance. 4

III.
There fore , we REVERSE the district court’s entry of summary judgme nt and REMAND the
matter to the district cour t for fur ther proc eeding s not inconsistent with t his opinion.

P l a i n t i f f a l s o c o n t e n d s t h a t h e d i d n o t r e c e i v e n o t i c e o f t h e r e q u i r e m e n t s a n d s t a n d a r d s g o v e r n i n g a m o t i o n f o r 4

s u m m a r y j u d g m e n t , a n d t h u s , h e i s e n t i t l e d t o a u t o m a t i c r e v e r s a l

. S e e g e n e r a l l y U n i t e d S t a t e s v

. N i n e t y
- T h r e e ( 9 3 ) F i r e a r m s , 3 3 0 F

. 3 d 4 1 4 , 4 2 7

- 2 8 ( 6 t h C i r
. 2 0 0 3 ) ( c i t i n g c a s e s a n d d i s c u s s i n g i s s u e )

. G i v e n o u r d i s p o s i t i o n , t h i s a s s i g n m e n t o f e r r o r i s m o o t

. 8