United States District Court, D. Kansas
CROW, U.S. DISTRICT SENIOR JUDGE
case is before the court upon plaintiff's motions to
amend. Doc. Nos. 19 and 20. Because this case is in its early
stages and service upon defendants has not yet been ordered,
the court treats the motions as presenting additional claims
for the court to screen pursuant to the court's
responsibilities under 28 U.S.C. § 1915A. Therefore, the
court applies the standards for screening pro se
pleadings that the court discussed in a prior screening
order. Doc. No. 8.
No. 19, plaintiff asks for leave to amend the complaint to
allege that his constitutional rights were violated in April
2018 when he was denied soap and shampoo for over 24 hours
and denied a toothbrush and toothpaste for four or five days.
In Doc. No. 20, plaintiff alleges that in October 2017 his
constitutional rights were violated when he was kept in his
cell for 17 hours without being able to flush the toilet.
Plaintiff asserts that the water was shut off to his cell
after plaintiff covered his cell walls, including the area of
the food port, with feces. Plaintiff claims that the water
was turned on after plaintiff agreed to clean the walls
himself. Plaintiff used a scrubber and water, but he was not
given gloves. He asserts that dirty water splashed all over
him and that he was denied a shower before he ate his dinner.
He also claims that that there was no way to wash his hands
and that puddles of dirty water collected in his cell, where
he was forced to sit.
is a pretrial detainee. As such, he has a liberty interest in
freedom from punishment, even though he is detained pending
trial. Bell v. Wolfish, 441 U.S. 520, 535 (1979).
There is, however, a de minimus level of impingement upon a
detainee's liberty interest with which the Constitution
is not concerned. Id. at 539 n.21; Dilworth v.
Adams, 841 F.3d 246, 252 (4th Cir.
2016)(acknowledging “de minimus” level exists,
but finding it was exceeded).
court finds that plaintiff's claims in Doc. Nos. 19 and
20 do not surpass the de minimus level required for
constitutional consideration. “Temporary discomfort
alone is not enough.” Ingram v. Cole County,
846 F.3d 282, 286 (8th Cir. 2017)(en banc
alleges he was denied soap, shampoo, toothpaste and a
toothbrush for a limited period of time. The short-term
denial of hygienic items, including toothpaste, toothbrushes
and toilet paper for 72 hours or sometimes longer do not rise
to the level of a constitutional violation. Gilland v.
Owens, 718 F.Supp. 665, 685 (W.D.Tenn. 1989). See
Peyton v. County of Ventura, 2017 WL 6816355 *3
(C.D.Cal. 8/23/2017)(short-term loss of commissary and
visitation privileges is de minimus); see also Gee v.
Pacheco, 627 F.3d 1178, 1192 (10th Cir.
2010)(denial of hygiene items for 25 hours and four week
periods does not violate Eighth Amendment); Harris v.
Fleming, 839 F.2d 1232, 1235-36 (7th Cir.
1988)(no toilet paper for five days, no soap, toothbrush and
toothpaste for ten days does not violate Eighth Amendment);
Brown v. Stacy, 2016 WL 4014639 *8 (E.D.Ky.
7/26/2016)(denial of soap and toothpaste for nine days does
not violate Eighth Amendment, citing cases involving much
longer deprivations of hygiene items).
also alleges that his exposure to unsanitary conditions was
for less than a day and could have been shortened if he had
agreed sooner to clean his cell. These kinds of allegations
are insufficient to state a plausible constitutional claim.
Twenty-four hours in unsanitary conditions is “too
short a time to constitute a due process violation.”
Beaulieu v. Ludeman, 690 F.3d 1017, 1045
(8th Cir. 2012). A due process violation is also
not shown by four days in a cell with the stench of one's
own feces where the inmate was offered an opportunity to
clean up the mess. Smith v. Copeland, 87 F.3d 265,
268 (8th Cir. 1996); see also Wozniak v.
Pricardo, 2012 WL 79016 *3-4 (D.Ariz. 1/11/12)(6 hours
in a cell with feces smeared on wall before receiving towels
and cleaning solution). Allegations of water on the floor,
bugs, feces, mold and dirty food port doors were insufficient
to allege an Eighth Amendment claim where inmates are given
the opportunity to clean their cells at least five days a
week. Ward v. Rice, 2018 WL 1278197 *7-8 (W.D.Ark.
3/12/2018). See also, Dellis v. Corr. Corp. of Am.,
257 F.3d 508, 511 (6th Cir. 2001)(temporary stay
in a wet cell without a working toilet does not violate
Eighth Amendment); Barney v. Pulsipher, 143 F.3d
1299, 1312 (10th Cir. 1998)(no Eighth Amendment violation
stated from incarceration in a filthy cell with inadequate
ventilation for only 48 hours); Whitnack v. Douglas
County, 16 F.3d 954, 958 (8th Cir. 1994)(deplorably
filthy and patently offensive cell with excrement and vomit
not unconstitutional because conditions lasted only for 24
court further notes that plaintiff does not have a
constitutional right to a particular amount or type of
cleaning supplies, such as gloves. Steimel v.
Fields, 1995 WL 530610 *3 (D.Kan. 8/21/95); see also
Lewis v. Justus, 2016 WL 1555157 *4 (S.D.Ill.
4/18/2016)(denying claim that cleaning supplies were limited
to a mop and water). Plaintiff does not allege facts
plausibly showing that the denial of gloves or the conditions
of which he complains were punitive and unconstitutional.
summary, for the above-stated reasons, the court finds that
plaintiff's motions to amend fail to allege facts
plausibly describing a constitutional violation. Therefore,
plaintiff's motions to amend - Doc. Nos. 19 and 20 -
shall be denied.