United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-1809

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Anderson Harrison Frye, Jr., *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Western

Pettis County Sheriff Department; * District of Missouri.

Gary Starke, Pettis County Sheriff; *

Bill Breuning, Sergeant; Kevin Tylar, * [UNPUBLISHED]

Corporal; John McCombs; Jason *

Atwell, *

*

Appellees. *

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Submitted: July 11, 2002

Filed: July 26, 2002

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Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

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PER CURIAM.

Anderson Harrison Frye, Jr. brought this 42 U.S.C. § 1983 action pro se against

the Pettis County Sheriff Department, the Sheriff, and his deputies alleging unsafe

and hazardous living conditions at the Pettis County jail violated his Eighth
*

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri. 

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Amendment rights. The district court*

 granted summary judgment to the officials,

and Frye appeals pro se. We affirm.

Frye, a pretrial detainee, was placed in the Pettis County jail on May 2, 2000.

According to Frye’s amended complaint and affidavit, the toilet in his cell leaked

both sewage and water. From the beginning, Frye complained to the Sheriff and

deputies verbally and in writing, stating the “foul water and sewage [were] making

the cell unbearable to live in.” Frye asked them to have the toilet fixed, or to move

him to another cell. The deputies provided blankets to help absorb the leakage, but

did not move Frye. On May 24, 2000, Frye slipped on water in his cell and fell,

striking his head and back on the toilet and floor. He was taken in an ambulance to

the emergency room at Bothwell Regional Health Center. The ambulance report

states the technicians found Frye lying on a wet floor and observed water puddles and

a sheet by the toilet soaked with water. Doctors examined Frye and diagnosed a

closed head injury, a concussion, and back and knee sprains. Frye was discharged

and returned to the same cell. On June 13, 2000, a plumber attempted to repair the

toilet. Frye was removed from the cell on July 21, 2000, and convicted of forgery.

He is now a state prisoner, and alleges his current medical problems, including

hearing loss and seizures, are a result of the fall. 

To prevail on a condition-of-confinement claim, inmates and pretrial detainees

must show (1) the condition was serious enough to deprive them of the minimal

civilized measure of life’s necessities, or to constitute a substantial risk of serious

harm, and (2) officials were deliberately indifferent to the inmates’ or detainees’

health and safety. Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996); Shannon v.

Graves, 257 F.3d 1164, 1168 (10th Cir. 2001). The district court concluded there is

no evidence from which a jury could find the officials were deliberately indifferent
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to Frye’s complaints about the leaky toilet or the health and safety of prisoners. On

appeal, Frye asserts that there was. 

Frye argues that because his cell was inundated with foul water and raw sewage

for the ten weeks that he lived there, the officials failed to act in the face of an

unjustifiably high risk of harm that was either known or so obvious that it should

have been known to them. “[C]onstructive knowledge, or the ‘should-have-known’

standard, is not sufficient to support a finding of deliberate indifference,” however.

Spruce v. Sargent, 149 F.3d 783, 786 (8th Cir. 1998). Deliberate indifference is a

difficult standard to meet. Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998). Mere

negligence is not enough. Daniels v. Williams, 474 U.S. 327, 330-31 (1986). To

show deliberate indifference, Frye must prove the officials knew of facts from which

they could infer a substantial risk of serious harm existed and that the officials drew

that inference. Perkins v. Grimes, 161 F.3d 1127, 1130 (8th Cir. 1998). Here, Frye

acknowledges the deputies frequently provided blankets or towels to absorb water

and a plumber who tried to fix the toilet once after Frye fell. Thus, the officials

responded to the complaints and tried to remedy the problem. Undoubtedly, the

blankets helped. The fact that the remedies fell short of curing the problem does not

show the officials were deliberately indifferent to Frye’s health and safety. As the

district court stated, “The uncontested evidence does not support a finding that the

prison officials were aware that the towels were insufficient to maintain a safe area

or that the leakage was sufficiently serious that the prisoners had a substantial risk of

falling which would cause serious harm.” 

Frye also asserts the district court should have allowed him to proceed with

discovery so he could show the officials knew of a serious risk of harm and

intentionally disregarded it for an offensive amount of time. Federal Rule of Civil

Procedure 56(c) does not require the completion of all discovery before a court may

properly grant summary judgment, however. Dulany v. Carnahan, 132 F.3d 1234,

1238 (8th Cir. 1997). The Rule allows a party opposing summary judgment to seek
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a continuance and postpone a summary judgment decision until adequate discovery

has been completed. Id. Although Frye sought continuances, he did not do so on the

basis that he needed more discovery. Thus, the district court did not abuse its

discretion in granting summary judgment based on the record before it. Id. Besides,

the discovery would not help Frye’s case. Because we must view the record in Frye’s

favor, we assume, as the district court did, only one repair call by the plumber. Thus,

Frye needs no proof to contradict the plumber’s affidavit that he made several repair

calls. Further, the officials do not dispute that the inmates filed grievances and made

complaints about the leaky toilet. The discovery sought is simply not material. 

We affirm the district court’s order granting summary judgment to the officials.

We grant Frye’s unopposed motion to supplement the record with the specific dates

of his incarceration in the Pettis County jail, his pre- and post-injury requests to be

moved from the cell containing the leaky toilet, and an account activity report

received from the county auditor showing payment to the plumber for stool repair at

the jail on June 13, 2000. 

A true copy.

Attest:

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