### The Honorable Scott O. Wright, United States District Judge 1 

### for the Western District of Missouri, adopting the Report an d Re commendation of The Honorable William A. Knox, United State s Magistrate Judge for the Western District of Missouri. ___________ No. 95-2476

___________ Jeffrey Tokar, *
* Appellant, *
* Appeal from the United States v. * District Court for the
* Western District of Missouri. Bill Armontrout; Robert * Drennen; Myrna E. Trickey, *
* Appellees. *

___________ Submitted: April 8, 1996 Filed: October 8, 1996

___________ Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN , Circuit Judge.

___________ HENLEY, Senior Circuit Judge.

Jeffrey Tokar appeals from a judgment of the distric t court granting 1 summary judgment in favor of Bill Armontrout, Ro bert Drennen, and Myrna E. Trickey, former officials with the Missouri Depa rtment of Corrections (the department). We affirm.

Tokar is an HIV-positive individual. From June 1989 to August 1989 and aga in from September 1991 to November 1991, he was an inmate at th e Jefferson City Correctional Center (JCCC) housed in

### Tokar was a n inmate in JCCC from June 15, 1989 to August 31, 2 

### 1989, September 11, 1991 to January 16, 1992, and April 28, 1992 to September 7, 1993. In November 1991, the department discontinued its policy of segregating HIV-positive inmates from the genera l po pulation. Tokar continued to live in Unit Six for some tim e after it was desegregated.
-2- Unit Six, a segregated unit for HIV-positive inmates. Armontrout wa s 2 warden of JCCC from J anuary 2, 1984 to December 31, 1990; Drennen was the hospital administrator of JCCC from November 2, 1987 to August 31, 1989; and Trickey was the d epartment's director of classification and treatment from October 15, 1988 to October 31, 1990.

In 1989, Tokar filed suit under 42 U.S.C. § 1983 against appellees, alleging that they had violated his right to equal protection by placing him in a segregated u nit due to his HIV-positive status. He also alleged that conditions of confinement in the unit violated his Eighth Amendment right to be free from cruel and unusual punishme nt. The action was stayed for a number of years. After the stay was lifte d, in 1993 appellees filed

a motion for summary judgment on qualified immunity grounds, asserting tha t they had not violated any clearly established right by segregating Tokar

on the ba sis of his HIV-positive status as a health and safety measure

. The district court granted the motion in part. As to the status challenge , the court held that a ppellees were entitled to qualified immunity, citing Muhammad v. Carlson , 845 F.2d 175, 179 (8th Cir. 1988) (court "refus[ed] to find a [due process] liberty interest in procedures established fo r identifying, treating , and isolating prisoners carrying the AIDS virus"), cert. denied , 489 U.S. 1068 (1989). However, th e district court held that appellees were not entitled to qualified immunit y on Tokar's conditions of confinement claims and allowed Tokar to restate his claims.

In an amended complaint, among other things Tokar alleged he

### -3-

had been subjected to cruel and unusual punishment because the unit ha d broken windows, a leaky roof, and unsanitary and insufficient toilet and shower facilities. He also alleged numerous denial-of- access claims , including denial of medical care and counseling and access to the la w library, gift and snack shop, church, recreational and exercise facilities , and ed ucational and rehabilitation opportunities. Throughout hi s complaint, Tokar claimed that segregation in Unit Six violated his right to privacy by disclosing his HIV status to other inmates and guards. Afte r appellees' motion to dismiss was denied, they filed a motion for summary judgment, asserting that Tokar failed to set forth facts demonstrating tha t the conditions deprived him of "the minimal civilized measure of life' s
nec essities," quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981), tha t defen dants had acted with deliberate indifference, citing Farmer v

. Brennan , 114 S. Ct. 1970 (1994), or that he had been harmed by an y condition or denial, see Lewis v. Casey , 116 S. Ct. 2174, 2179 (1996).

In suppo rt of their motion for summary judgment, appellees filed a copy of Tokar's December 1994 deposition. In th e deposition, Tokar stated that windows were broken and the roof leaked in spots, but acknowledge d that his cubicle did not have a window and the r oof above it did not leak. He also admitted that after he notified a staff member that windows were broken, they were replaced, and before they were replaced he could use a blanket to stay warm. He also complained that t here were only two toilets and showe rs for sixty inmates, but admitted that he could take a showe r whenever he needed to and that the longest he had to wait to use a toilet

was fifte en to thirty minutes. Although he claimed that the toile t facilities were filth y, Tokar could not say for how long a period of time the toilets remained filthy, acknowledging that inmates were assigned to clean them and that he had never asked for cleaning supplies because "it wasn't [his] job." I n support of his denial of medical care claim, Tokar stated that he had to wait about three weeks to see a doctor about ear and back

### Appellees also filed copies of Tokar's medical records , 3

### including a 1989 form in which he acknowledged that he had "posttest counseling regarding the AIDS virus."
-4- "problems" and had no t received a blood test he had requested. As to his counseling claim, Tokar admitted that when he was diagnosed as HIV-positiv e in June 1983 at a department medical facility, a nurse spoke with him abou t his condition and inf ormed him he could obtain more information about HIV at JCCC, but that he did not request information or request to see anyone until 1991, even though he knew that a doctor visited the unit once a week , a nurse came by on a regular basis, a nd a counselor was available. As to 3 his denial-of-access claims, Tokar, among other things, admitted that he had access to an outdoor recreational yard several times a day, weight

lifting equipment, a television and a pool table. Although he complained about a denial of access to the law library, Tokar admitted that he wa s able to file the inst ant suit in 1989 and could not state how he had been harmed in pursuing the action, noting that sometime in 1991 he saw a paralegal from whom h e could request legal materials, and did not know if he had access to a paralegal before that time be cause he "wasn't concerned with the issue too much."

As to appellees' liability, Tokar co nceded that prior to filing suit he had never spoken t o appellees or filed grievances about his conditions of co nfinement. He explained that he sought to hold Armontrout liabl e bec ause "it was [his] responsibility to make sure everybody was treate d fairly and just"; Trickey liable because she "failed to competently perfor m her job"; and Drennen liable because he failed to train his staff in the "handling of HIV-positive inmates."

In opposition to appellees' motion, Tokar submitted several new spaper articles which discussed the problems of HIV in prisons across the country and a 1995 affidavit by Sister Ruth Heaney, a

### -5-

nun who visited and counseled inmates. Although the newspaper article s quote several Missouri prison officials, the officials discussed condition s in 1987 and none of the officials were appellees. In her affidavit, Siste r Ruth stated that she had observed broken windows , mice and insects in Unit Six, but she did not indicate when she saw those conditions or that she ha d reported them to prison officials.

At an oral argument, the district court expressed several concern s about the case, including its concern that altho ugh Tokar had alleged that numerous conditions of confinement were inhumane , he had failed to produce evidence i n support of his generalized allegations or how he had bee n harm ed by any condition. Counsel told the court that Tokar's Eight h Amendment claim was not necessarily based on "a particular issue . . . but [wa]s based on all the conditions in general." Counsel also conceded that To kar had not had "any adverse medical reaction" other than jus t "emotional." The district court granted appellees' motion, holding that there were no triable issues of fact.

Based on our de novo review, the district court did not err i n granting appellees' m otion for summary judgment. "As a general matter, a prison official commits an Eighth Amendment violation only when tw o requir ements are met: (1) the deprivation alleged must be objectively , sufficiently serious, and (2) a prison official must be, as a subjective state of mind, deliberately indifferent to the prisoner's health o r safety." Aswegan v. Henry , 49 F.3d 461, 464 (8th Cir. 1995) (interna l quotations omitted). Although appellees had the initial burden of showing tha t there were no genuine issues of material fact and that they wer e entitled to judgment as a matter of law, once they supported their motion the burden shifted to Tokar to go beyond his pleadings and "by affidavits or . . . otherwise . . . set forth specific facts showing that there is a genuine dispute for trial." Fed. R. Civ. P. 56(e).

### We no te that "[c]onditions, such as a filthy cell, may b e 4 

### tolerable for a few days and intolerably cruel for weeks o r months." Whitnack v. Douglas County , 16 F.3d 954, 958 (8th Cir

. 1994) (quoting Howard v. Adkison , 887 F.2d 134, 137 (8th Cir

. 1989)). For example, in Howard this court found condition s inhumane w here for two years a prisoner was "placed in a cel l covered with filth and human waste[,] . . . requests for remedial measures went unheeded, and he was denied access to proper c leaning supplies." 887 F.2d at 137. We also note that "[w]hile the length of time a prisoner must endure an unsanitary cell is undoubtedl y one factor in the constitutional calculus, the degree of filt h endure d is surely another." Whitnack , 16 F.3d at 958. In othe r word s, "the length of time required before a constitutiona l violation is made out decrease s as the level of filthiness endured increases." Id. For example, in Fruit v. Norris , 905 F.2d 1147, 1151 (8th Cir. 1990), this court indicated that requiring inmates to work for even ten minutes in a well where they faced "a shower of human excrement without pro tective clothing and equipment would be inconsistent with any standard of decency." In Estelle v

. Gamble , 429 U.S. 97, 102 (1976) (internal quotation omitted), the Supreme Court made clear that the standards against which a court measures prison conditions are "the evolving standards of decency that mark the progress of a maturing society" and not, as ap pellees suggest in their brief, the st andards in effect during the time of the drafters of the Eighth Amendment. In contrast, here, Tokar could not say how long the toilet s were "filthy." Also importantly, he admitted that he never asked for cleaning supplies. In Whitnack , this court accepted tha t unsanitary toilet conditions were "deplorable," but nonetheles s held that the inmates had failed to prove the objective component of their Eighth Amendment claim, noting that requests for use o f alternative facilities had not been denied and that within a couple of hours after the inmates had requested cleaning supplies, "they had been furnished with a spray cleaner . . . which could ha ve been used to clean the toilet seat and sink bowl." 16 F.3d at 958.
-6- It is cle ar that "the record that [Tokar] developed did not satisfy that burden." Davis v. Fulton County , 90 F.3d 1 346, 1353 (8th Cir. 1996). As to the objective components of his Eighth Ame ndment claims, we need not address each specific condition Tokar had allege d to be inhumane. Indeed, in the district court and on appeal Tokar appears to concede, as he should , that he fa iled to produce evidence showing that any one condition wa s inhumane. Instead, he argues that his "overall" conditions we re inhumane.

4
However , the Supreme Court has stated that "[n]othing so amorphous a s 'overall conditions' can rise to the level of cruel and unusual

### Conversely, we note that the combination of sealed windows, 5 

### inadequate ventilation, and crowded cells has been found to b e unc onstitutional because the combination caused the cells t o "become like 'ovens.'" Hamilton v. Love , 328 F. Supp. 1182, 1190 (E.D. Ark. 1971). See also Fruit , 905 F.2d at 1151 (combina tion of working in "shower of human excrement without protective clothing and equipment" inhumane); cf. Good v. Olk-Long , 71 F.3d 314, 31 6 (8th C ir. 1995) (distinguishing Fruit because inmates were give nprotective eyewear, gloves, and boots while cleaning sewage backup).
-7- pun ishment when no specific deprivation of a single human need exists. " Wilson v. Seiter , 501 U.S. 294, 305 (1991). Although

[s]om e conditions of confinement may establish an Eight h Amendment violation 'in combination' when each would not do so alone, [they do so] only when they have a mutually enforcin g effect that produces the deprivation of a single, identifiable hum an need such as food, warmth, or exercise--for example, a low cell temperature at night combined with a failure to issue blankets.

Id. at 30 4. Although it is conceivable that under certain conditions a combination of broken windows and a leaky roof in a cell could deprive an inmate of warmth, in this case Tokar did not make such a showing. Tokar 5 admitted that his cubicle did not have a window, that the roof above it di d not leak, and that before broken windows were repaired he could use a blanket to stay warm. Moreove r, even if Tokar had put forth evidence to create a triabl e issu e of fact as to the objective components of his Eighth Amendmen t cla ims, he failed to set forth any evidence to create a triable issu e concerning the subjective components of his clai ms. Tokar admits that the doctri ne of respondeat superior is unavailable to impose liability o n app ellees, see White v. Holmes , 21 F.3d 277, 280 (8th Cir. 1994), bu t

ass erts they are liable based on their alleged failure to train o r supervise their employees. However, this court has stated that an inmate' s section 1983 "cause of action predicated on a supervisor's failure t o supervise or control his subordinates may be maintained only if a defendan t

### In Farmer the Supreme Court rejected application of th e 6 

### objective deliberate indifference test set forth in Canton v

. Harris , 489 U.S. 378, 396 (1989), which allowed municipal li ability based on a failure to train if policy makers "were on actual o r constructive notice of the need to train." 114 S. Ct. at 1981

. The Court explained that the objective standard was "not a n appropriate test for determini ng the liability of prison officials under the Eighth Amendment" because the amendment "ensure[s] that only inflictions of punishment carry liability." Id.
-8- demonstrated delibera te indifference or [] authorization of the offensive acts." Id. (internal quotation omitted). Under the deliberat e indi fference standard, "a prison official cannot be found deliberatel y indifferent under the Eighth Amendment, 'unless the official knows of and disregards an excessive risk to inmate health or safety.'" Prater v. Dahm , 89 F.3d 538, 541 (8th Cir. 1996) (quoting Farmer , 114 S. Ct. at 1970). "I n other words, . . . 'the official must both be aw are of facts from which an inference could be drawn that substantial risk o f harm exists, and he must also draw the inference.'" Id. (quoting Farmer , 114 S. Ct. at 1982-83). See also Jensen v. Clarke , No. 95-1105, 1996 WL 498960 at *6 (8th Cir

. Sept. 5, 1996). 6

Although Farmer requires a showing of actual knowledge, in Farm er the Court made clear that an inmate's "failure to give advance notice is not dis positive" of the issue and that an inmate need not prove actua l knowledg e by direct evidence. 114 S. Ct. at 1984. Instead, the Cour t stated that "[w]hethe r a prison official had the requisite knowledge of a substantial risk [of harm] is a question of fact subject to demonstration in the usual ways, including inference from circ umstantial evidence." Id. at 1981. For example, the Court explained that "a factfinder may conclude that a prison officia l knew of a substantial risk from the very fact that the risk was obvious" or was "longstanding, perv asive, well-documented, or expressly noted by prison officials in the past, and the circumstance s suggest that the defendant-official being sued had been exposed to th e information concerning the risk

### In ad dition, in Lewis the Court held that in an access-to

7 

### courts claim to establish an actual injury an inmate has to show an impairment of his ability to " attack [his] sentence[], directly or collaterally, [or] . . . challenge the conditions of [his] confin ement." 116 S. Ct. at 2182. Even assuming that Tokar wa s alleging an access-to-courts c laim, we do not believe he set forth facts demonstrating an actual injury. In lig ht of Lewis , we note that dicta in Hamm v. Groose , 1 5 F.3d 110 , 112 (8th Cir. 1993), indicating that if an inmate wer e denied complete access to the law library, he need not prove actual injury, may be incorrect. See Lewis , 116 S. Ct. at 2181 n.4.
-9- and thus must have known about it." Id. (intern al quotation omitted). In this case, although T okar's failure to complain or file a grievance about any condition is not dispositive of the question whether appellees ha d actual knowledge, Tokar also failed to offer any circumstantial evidence fromwhich a trier of fact could infer the officials had the requisit e knowledge. See Prater , 89 F.3d at 541-42.

Also, we agree with appellees that as to many of Tokar's claims , especially his denial-of-access claims, summary judgment, or even a Fed. R. Civ. P 12(b)(6) di smissal, was appropriate because either Tokar failed to allege a constitutional claim or failed to allege or demonstrat e suffici ent harm. We believe it is unnecessary to set forth th e deficiencies in Tokar's showings of harm as to e ach claim or set forth the allegations which fail to state a claim. Howeve r, we note that we know of no constitutional right of access to a prison gi ft or snack shop. We also note that Tokar had alleged that he had been den ied physical access to the law library. However, recently the Supreme Court has made clear that an inm ate does not have a constitutional right to "turn[] pages in a la w library." Lewis v. Casey , 116 S. Ct. at 2182. In Lewis , the Cour t clarified that although in Bounds v. Smith , 430 U.S. 817, 828 (1977), it had held that "the fundamental constitutional right of access to the court s requires prison authorities to assist inmates in the preparation and filin g of mea ningful legal papers by providing prisoners with adequate la w libraries or adequate assistance from persons trained in the law[,]" the

cas e did not establish a right of access to a law library or to lega l assistance, but only "acknowledged [] the (alrea dy well-established) right of access to the courts ." 116 S. Ct. at 2179. 7

### In An derson the court noted that in Hudson v. Palmer , 46 8 8 

### U.S. 517 (1984), the Supreme Court had held that prisoners had no Fourth Amendment right to privacy, but believed it was "premature to assume that the Court meant to extinguish claims of privacy of an entirely different kind." 72 F.3d at 522. The Seventh Circuit als o believed that even if no privacy rights existed, certai n act ions of prison officials in disclosing HIV status, such a s branding or tattooing HIV-posi tive inmates, might constitute cruel and unusual punishment under the Eighth Amendment. Id. at 523.

-10- Last, we address Tokar's argument that appellees violated hi s constitutional right to privacy by segregating h im in Unit Six because the fact of segregation disclosed his HIV-positive s tatus to other inmates and

correc tional officers. The district court held that appellees wer e entitled to qualified immunity on this issue, concluding that during the time s in 1989 and 1991 that Tokar was segregated in Unit Six he had n o clearly established c onstitutional right to non-disclosure of HIV status. We agree.

In Anderson v. Romero , 72 F.3d 518 (7th Cir. 1995), the Sevent h Circui t recently held that prison guards were entitled to qualifie d imm unity on an inmate's claim that they had violated his constitutiona l right to privacy by disclosing his HIV-positive status to other guards and inmates. After the court surveyed "the history of the legal concept o f privacy," id. at 521, it held that "[n]either in 1992 nor today was (is) the law clearly established that a prison cannot without violating th e constitutional rights of its HIV-positive inmates reveal their condition to other inmates and to guards in order to enable those other inmates and guards to protect themselves from infection." Id. at 524. For the reason s set forth in Anderson , we agree. We note that the court could not find a Suprem e Court case or "appellate holding that prisoners have a constitutional right to confidentiality of their medical records." Id. at 523. The "closest" appellate case the court 8

### We note that in Robbins v. Clarke , 946 F.2d 1331, 1333 (8th 9 

### Cir. 1991), in the context of rejecting an inmate's claim tha t prison officials had illegally conspired to conceal the identities of HIV-positive inmates, this court held that "prison offici als who decline to reveal to the gener al population the identities of HIVpositive prisoners do not by so declining commit an illegal act." In the opinion, we cited Doe v . Coughlin , 697 F. Supp. 1234, 1240- 43 (N.D. N.Y. 1988), in which the court had held that segregation of HIV-positive inmates violated their privacy rights. By citing to Doe , we did not hold that an inmate had a clearly establishe d consti tutional right to privacy. In any event, "district cour t decisions cannot clearly establish a constitutional right. " Anderson , 72 F.3d at 525.
-11- found was the Eleventh Circuit's decision in Harris v. Thigpen , 941 F.2d 1495 (11th Cir. 1991). In Harris , HIV-positive inmates challenged a pri son's policy of segregating them from the general population and, a s does T okar, argued that "the involuntary disclosure of inmates' [HIV

positi ve] status resulting from such segregation . . . violat[ed ] constitutionally-guaranteed privacy rights." Id. at 1512. The Eleventh Circuit noted that the privacy right asserted in the case was "rather illdefined," but for purposes of the opinion the court assumed a privacy righ t existed. Id. at 1513. However, the court held that the segregation polic y
was "a reasonable infringement [of the right] in light of the inmat e intere st at stake . . . and the difficult decisions that the [priso n officials] must make in determining how best to treat and control within [the ] correctional facilities the spread of a communicable, incurable , always fatal disease." Id. at 1521 (footnote omitted). See also Anderson , 72 F.3d at 524 ("even if a right of prisoners to the confidentiality o f their medical records in general had been clearly established in 1992, it would not follow that a prisoner had the right to conceal his HIV status") ; cf. Moore v. Mabus , 976 F.2d 268, 271 (5th Cir. 1992) ("identification and segreg ation of HIV-positive inmates obviously serves a legitimat e penological interest"), Muhammad , 845 F.2d at 17 9 (in context of rejecting due process liberty interest claim court expressed "reluctance to hinder prison officials' attempts to cope with the extraordinarily difficul t problems AIDS poses in a prison setting"). 9

### -12- In conclus ion, we hold that the district court did not err i n granting appellees' m otion for summary judgment. We do so simply because Tokar either failed to allege constitutional violations or set fort h evidence sufficient t o create triable issues of fact. On another record, the result could have been different.

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

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