UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Cole

v. Civil No. 13-cv-274-LM Opinion No.

Corporal FNU Fluery and Corporal FNU Dube1

O R D E R

Christopher Cole, an inmate at the New Hampshire State

Prison (“NHSP”) has sued in three counts. Against Corporal

(“Cpl.”) Randy Fleury and Corrections Officer (“CO”) Michael

Dube, he asserts: (1) a claim that those officers used excessive

force against him in violation of the Eighth and Fourteenth

Amendments to the United States Constitution (Count I); and (2)

a claim that those officers are liable to him for assault and

battery under state common law (Count II). Cole also asserts a

claim against Cpl. Fleury for exposing him to inhumane prison

conditions that violated the Eighth and Fourteenth Amendments

1 While this is the official caption of the case, “Corporal FNU Fluery” is actually Cpl. Randy Fleury, and “Corporal FNU Dube” is actually CO Michel Dube.” In this order, the court refers to the defendants by their proper names and ranks. (Count III).2 Before the court is a motion for summary judgment

filed by Cpl. Fluery and CO Dube. Cole has not objected. For

the reasons that follow, defendants’ motion for summary judgment

is granted.

I. Summary Judgment Standard

“Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law.” Ponte v. Steelcase Inc.,

(1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of

Corr.,

(1st Cir. 2010)); see also Fed. R. Civ.

P. 56(a). When ruling on a motion for summary judgment, the

court must “view[] the entire record ‘in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.’” Winslow v.

Aroostook Cnty.,

(1st Cir. 2013) (quoting Suarez

v. Pueblo Int’l, Inc.,

(1st Cir. 2000)).

“The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

2 Counts I and III are brought through the vehicle of

, which provides, in pertinent part, that “[e]very person who, under color of any a statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law.”

2 order to determine whether trial is actually required.’”

Dávila v. Corp. de P.R. para la Diffusión Púb.,

(1st Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc.,

(1st Cir. 2004)). “[T]he court’s task is not to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Noonan

v. Staples, Inc.,

(1st Cir. 2009) (citations and

internal quotation marks omitted).

“The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that

a trialworthy issue persists.” Sánchez-Rodríguez v. AT&T

Mobility P.R., Inc.,

(1st Cir. 2012) (quoting

Iverson v. City of Boston,

(1st Cir. 2006)).

That is, “the party seeking to avoid summary judgment must be

able to point to specific, competent evidence to support his

claim.” Sánchez-Rodríguez,

(quoting Soto-Ocasio

v. Fed. Ex. Corp.,

(1st Cir. 1998)) (internal

quotation marks omitted).

II. Background

The court begins by identifying the sources of the facts

recited in this section. Defendants’ summary-judgment motion

includes a statement of material facts, supported by record

3 citations, as required by Local Rule 56(1)(a). Plaintiff has

not objected to defendants’ motion for summary judgment.

Ordinarily under such circumstances, all properly supported

facts set forth in defendants’ statement of facts would be

deemed admitted. See LR 56(1)(b). But, plaintiff has filed a

verified complaint, and that complaint is properly “treated as

the functional equivalent of an affidavit [for the purpose of

opposing a summary-judgment motion] to the extent that it

satisfies the standards explicated in Rule 56(e).” Sheinkopf v.

Stone,

(1st Cir. 1991). That said, except

as otherwise indicated, the following facts are undisputed.

At all times relevant to his claims, Cole was incarcerated

in a section of the NHSP’s Secure Psychiatric Unit called Echo

Ward. On the evening of May 18, 2013, inmates on Echo Ward

flooded the tier on which Echo Ward is located by plugging their

toilets and then flushing them. In response, Cpl. Fleury cut

off the water to the tier and began removing the water that had

flooded it. Plaintiff does not allege in his amended complaint,

nor may it be reasonably inferred from his allegations, that the

flooding involved anything but water. That is, Cole does not

allege, or even hint, that the water that flooded his cell

contained human waste.

4 Cpl. Fleury shut off water to the tier shortly before

midnight, and turned it back on at about 2:30 p.m. the next day.

That forced Cole to spend 15 hours in a cell with a toilet he

could not flush. He cleaned up the water on the floor of his

cell without gloves or disinfectant, did so barefooted, and was

denied the opportunity to take a shower immediately thereafter.

During the clean-up process, inmates on Echo Ward were yelling

and banging on their doors.

The day after the flooding on Echo Ward, the inmates housed

there were still acting disruptively, and were served bag

lunches, rather than lunches on trays, in an effort to minimize

contact between inmates and correctional officers. Inmates

housed on Echo Ward received all their meals in their cells.

Their food was delivered by sliding it through a “tray slot,”

which is an opening in a cell door that consists of a smaller

door that may be opened, closed, and locked.

When Cpl. Fleury and CO Dube attempted to push Cole’s bag

lunch through his tray slot, Cole responded by declining his

lunch and then attempting to push a wet trash bag back through

the slot. Neither Cpl. Fleury nor CO Dube knew what was in the

bag, but feared that it might contain a urine-soaked blanket

and/or feces. Presumably because Cole was attempting to dispose

of trash outside the designated time for doing so, Cpl. Fleury

5 ordered Cole to stop pushing the bag through the slot. It is

undisputed that Cole failed to comply; he has testified to that

effect. Cpl. Fleury then ordered Cole to pull his arms and the

bag back into his cell. Cole again failed to comply, and

actually succeeded in pushing the trash bag all the way out of

his cell. Then, when Cole continued to hold onto the edge of

the tray slot, Cpl. Fleury and CO Dube pushed Cole’s hands and

arms back through and locked the door of the tray slot.

In his verified complaint, Cole alleges that Cpl. Fleury

and CO Dube: (1) slammed the tray-slot door on his hands; (2)

held, twisted, and pulled his fingers while applying pressure to

them with the tray-slot door; and (3) stomped on his fingers.

However, defendants have produced deposition testimony, elicited

from Cole while viewing a videotape of the incident, in which he

admitted that the tape showed no pulling or stomping by Cpl.

Fleury or CO Dube. It is undisputed that the entire incident

took about a minute and was captured in its entirety on the

videotape.

This action followed. In Count I, Cole asserts that Cpl.

Fleury and CO Dube pulled, twisted, and stomped on his fingers,

hands, and arms, in violation of his Eighth-Amendment right to

be free from cruel and unusual punishment in the form of

excessive force. In Count II, he asserts that Cpl. Fleury and

6 CO Dube are liable to him for committing assault and battery,

under the common law of New Hampshire. In Count III, he asserts

that Cpl. Fleury violated his Eighth-Amendment rights by acting

with deliberate indifference to his medical needs by subjecting

him to an unsanitary and unhygienic cell.

III. Discussion

Defendants move for summary judgment of each of Cole’s

claims, under a variety of legal theories. In the section that

follows, the court considers each claim in turn, beginning with

the two federal claims and concluding with Cole’s claim under

the common law of New Hampshire.

A. Count I

Count I is Cole’s excessive-force claim against Cpl. Fleury

and CO Dube. Defendants argue that they are entitled to

judgment as a matter of law on Count I because: (1) they are

entitled to qualified immunity ; (2) Cole has failed to state an

excessive-force claim; (3) Cole has failed to exhaust the

administrative remedies available to him, which bars his claim

under the Prison Litigation Reform Act of 1995, 42 U.S.C. §

1997e(a); and (4) Cole has failed to disclose an expert witness

within the timeframe established in the court’s discovery order.

7 Defendants are entitled to qualified immunity from Cole’s

excessive-force claim.

“Generally speaking, ‘[a]fter incarceration, only the

unnecessary and wanton infliction of pain . . . constitutes

cruel and unusual punishment forbidden by the Eighth

Amendment.’” Skinner v. Cunningham,

(1st Cir.

2005) (quoting Whitley v. Albers,

(1986)).

Thus, “[t]he critical question in such a case is whether the

force was applied ‘maliciously and sadistically for the very

purpose of causing harm,’ rather than ‘in a good-faith effort to

maintain or restore discipline.’” Skinner,

(quoting Whitley,

; Hudson v. McMillian,

(1992)). In other words, “not ‘every push or shove’

will reach the level required for an actionable excessive force

claim.” Mlodzinski v. Lewis,

(1st Cir. 2011)

(quoting Alexis v. McDonald’s Rests. of Mass., Inc.,

(1st Cir. 1995)).

Turning to qualified immunity, the court of appeals for

this circuit has described the purpose of that doctrine and the

framework for applying it:

Qualified immunity is a judge-made doctrine designed to curtail the legal liability of public officials. See Pagán v. Calderón,

(1st Cir. 2006). All state actors except “the plainly incompetent [and] those who knowingly violate the

8 law,” are shielded from individual liability for damages under this doctrine. Malley v. Briggs,

(1986).

A two-part framework governs whether a defendant is entitled to qualified immunity. See Haley v. City of Boston,

(1st Cir. 2011). First, we inquire whether the facts, taken most favorably to the party opposing summary judgment, make out a constitutional violation. See Pearson v. Callahan,

(2009). Second, we inquire whether the violated right was clearly established at the time that the offending conduct occurred. See

The second, “clearly established,” step itself encompasses two questions: whether the contours of the right, in general, were sufficiently clear, and whether, under the specific facts of the case, a reasonable defendant would have understood that he was violating the right. Maldonado v. Fontanes,

(1st Cir. 2009).

Ford v. Bender,

(1st Cir. 2014) (parallel

citations omitted).

Courts often “bypass the first step of the qualified

immunity framework and . . . focus instead on the second step.”

Ford,

(citing Maldonado,

); see

also Hunt v. Massi,

(1st Cir. 2014). Based

upon the undisputed facts of this case, however, the court can

rule on qualified immunity at the first step.

It is undisputed that: (1) Cole repeatedly disobeyed orders

from Cpl. Fleury and CO Dube to stop pushing trash through his

tray slot and to pull his hands and arms back into his cell; and

(2) the officers used their hands and arms (but not their feet)

9 to push Cole’s hands and arms back into his cell, which Cole

resisted by holding onto the edge of the slot. It is also

undisputed that the videotape of the incident did not show

either of the officers: (1) trying to pull Cole’s hands and arms

out through the slot; or (2) stomping on Cole’s hands or arms.

If presented with the undisputed facts in this case, no

reasonable jury could conclude that those facts make out a

violation of Cole’s right to be free from the application of

excessive force. That is, even when viewed most favorably to

Cole, the facts would not allow a reasonable jury to find that

Cpl. Fleury or CO Dube applied force against Cole in anything

other than a properly calibrated good-faith attempt to maintain

order on E-ward. Thus, as a matter of law, no excessive force

was used against Cole by either defendant. That entitles Cpl.

Fleury and CO Dube to qualified immunity from Count I.

B. Count III

Count III is Cole’s deliberate-indifference claim against

Cpl. Fleury. He frames that claim this way:

The failure of defendant [Fleury] to provide adequate sanitation and the basic elements of hygiene constitutes deliberate indifference to the plaintiff[’]s physical and mental health needs in violation of the Eighth Amendment of the United States Constitution.

10 Am. Compl. (doc. no 29) 6. More specifically, Cole claims that

Cpl. Fleury violated his Eighth-Amendment rights by: (1) denying

him cleaning supplies such as disinfectant; (2) not allowing him

to take a shower immediately after pushing water from

overflowing toilets (but not human waste) out of his cell while

barefoot and without gloves; (3) tossing a food bag on the wet

floor of his cell the day after the flood; and (4) subjecting

him to 15 hours in his cell with no running water, which exposed

him to odors emanating from his unflushed toilet.

While Count III is framed as a claim for deliberate

indifference to a serious medical need, see Kosilek v. Spencer,

(1st Cir. 2014) (describing the elements of such

a claim), that count is best construed as an “inhumane-

conditions-of-confinement” claim, i.e., a claim that Cpl.

Fleury’s actions denied Cole “the minimal civilized measure of

life’s necessities,” Feijoo v. Mass. Dep’t of Pub. Safety, ---

F. Supp. 3d ---, ---,

(D. Mass. Dec. 2,

2014) (quoting Hudson,

)). Pro se complaints are

to be construed liberally. See Foley v. Wells Fargo Bank, N.A.,

(1st Cir. 2014) (citing Erickson v. Pardus,

(2007) (per curiam)). And the court’s construction

of Count III is more favorable to Cole than his own framing of

that claim, owing to the difficulties he would face in

11 establishing a serious medical need, see Kosilek,

. Accordingly, the court construes Count II as an inhumane-

conditions claim rather than a claim that Cpl. Fleury was

deliberately indifferent to a serious medical need.

Cpl. Fleury argues that he is entitled to judgment as a

matter of law on Count III because, in the first instance, Cole

has failed to state a claim on which relief can be granted,

under the standard applicable to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Determining whether a claim meets

that standard requires the court to conduct a limited inquiry,

focusing not on “whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support

the claims.” Scheuer v. Rhodes,

(1974). To

survive a Rule 12(b)(6) motion, a complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” González-Maldonado

v. MMM Healthcare, Inc.,

(1st Cir. 2012)

(quoting Ashcroft v. Iqbal,

(2009); citing

Bell Atl. Corp. v. Twombly,

(2007)).

Turning to the relevant substantive law, an Eighth-

Amendment inhumane-conditions claim “must meet both objective

and subjective criteria.” Surprenant v. Rivas,

, 18

12 (1st Cir. 2005) (citing Farmer v. Brennan,

(1994)). Specifically:

[T]he plaintiff must [first] establish that, from an objective standpoint, the conditions of his confinement deny him the minimal measure of necessities required for civilized living. [Farmer,

.] Second, the plaintiff must show that, from a subjective standpoint, the defendant was deliberately indifferent to inmate health or safety.

Deliberate indifference, in this sense, is a mental state akin to criminal recklessness.

at 836–37.

Surprenant,

(footnote and parallel citation

omitted). It is well established in the prison context that the

necessities required for civilized living include sanitation.

See Rhodes v. Chapman,

(1981); see also

Masonoff v. DuBois,

(D. Mass. 1995)

(describing the constitutional standard for sanitation as

“reasonably adequate sanitation and the ability to eliminate and

dispose of one’s bodily wastes without unreasonably risking

contamination”) (quoting Whitnack v. Douglas Cty.,

(8th Cir. 1994)).

Cole’s inhumane-conditions claim is that he was denied

constitutionally sufficient sanitation in the immediate

aftermath of the flooding on Echo Ward. As the court

understands Cole’s complaint, it is based upon two conditions:

13 (1) his exposure to water from overflowing toilets; and (2) his

deprivation of a flushable toilet for about 15 hours.

Before moving to those specific issues, the court notes

that “[i]n determining whether a deprivation of a basic

necessity is sufficiently serious to satisfy the objective

component of an Eighth Amendment claim, [it should] consider the

circumstances, nature, and duration of the deprivation.” Bender

v. Sullivan, No. 1:09-cv-00575-LJO-GBC (PC),

, at

*2 (E.D. Cal. Jan. 30, 2012) (citing Johnson v. Lewis,

(9th Cir. 2000)); see also Masanoff,

(explaining that the “length of confinement cannot be

ignored in deciding whether the confinement meets constitutional

standards [and that a] filthy, overcrowded cell and a diet of

‘grue’ [sic] might be tolerable for a few days and intolerably

cruel for weeks or months”) (quoting Hutto v. Finney,

(1978)).

With regard to the allegedly inhumane conditions in this

case, one court has explained that “[t]he Eighth Amendment is

generally not violated . . . where unsanitary conditions are

temporary.” Ortiz v. Dep’t of Corr., No. 08 Civ.

2195(RJS)(HBP),

, at *7 (S.D.N.Y. Apr. 29, 2011)

(quoting Kee v. Hasty, No. 01 Civ.2123(KMW)(DF),

,

at 26 n.24 (S.D.N.Y. Apr. 14, 2004)). To the contrary, only a

14 “[s]ubstantial deprivation[] of . . . sanitation over an

extended time [is] sufficiently serious to satisfy the objective

component of an Eighth Amendment claim.” Bender,

, at *2. The durational requirement is particularly

relevant in this case, given that Cole does not allege that he

was unable to flush his toilet for any more than one day. That

said, the court turns to the factual bases for Cole’s claim,

exposure to toilet water, and his brief lack of a flushable

toilet.

A. Exposure to Toilet Water

With regard to Cole’s exposure to toilet water, “[a]

housing area flooded with water, urine, and feces may amount to

a serious deprivation,” for the purpose establishing the

objective component of an inhumane-conditions claim. Alvarez v.

Yates, No. 1:09-cv-02148-MJS (PC),

, at *3 (E.D.

Cal. Apr. 24, 2012) (citing Anderson v. Cty. of Kern,

(9th Cir. 1995)) (emphasis added). Here, however,

Cole’s complaint does not allege that his cell was flooded with

anything but water. That is, the complaint does not allege the

presence of human waste in the water that came into Cole’s cell.

That seriously undermines a claim based upon Cole’s exposure to

the flood water in his cell.

15 In Green v. French, the court granted summary judgment to a

defendant correctional officer where the plaintiff prisoner

alleged that his cell was flooded with water contaminated with

urine and feces but, at summary judgment, “presented no evidence

to support [his] claim other than his own guess as to the

contents of the water,” No. 05-4075,

, at *3

(C.D. Ill. June 25, 2007). That is, without any evidence of

contamination in the water that flooded the plaintiff’s cell,

the court granted summary judgment to the defendant.

Here, Cole alleges that his cell was flooded with water

that came out of toilets, but does not allege that the flood

water contained any human waste. And as regards a cell flooded

by water, “it is clear that confining a prisoner to a flooded

cell for a brief period of time does not violate the Eighth

Amendment.” Bagwell v. Brewington-Carr, No. CIV.A. 97-321-GMS,

, at *19 (D. Del. Apr. 27, 2000) (ruling that

corrections officer did not violate Eighth Amendment by

confining prisoner for “at most, a few days in a cell where

water coated the floor”) (citing Evans v. Fogg,

(S.D.N.Y. 1979)).

Moreover, assuming that Cole had alleged that his cell was

flooded with water containing human waste, that alone would be

insufficient to state a plausible claim for relief. It is, of

16 course, beyond reasonable dispute that exposure to human waste

is both offensive and unhealthy. See DeSpain v. Uphoff,

(10th Cir. 2001) (collecting cases). Even so,

mere exposure to human waste is not enough to establish the

objective component of an inhumane-conditions claim; the court

must still examine the duration and intensity of the exposure.

See McBride v. Deer,

(10th Cir. 2001).

In Alvarez, the plaintiff alleged that the floor of his

housing unit was flooded with water, urine, and feces, and that

he slipped and fell into the flood while complying with a

correctional officer’s instruction to cross the flooded floor by

stepping on mattresses laid across it, see

, at

*1. But, absent further allegations concerning the

circumstances and duration of the flooded conditions, the court

was unable to determine whether the plaintiff suffered a

sufficiently serious deprivation of his right to sanitation.

See

Alvarez is not the only case in which mere exposure to

human waste was insufficient to establish the objective

component of an inhumane-conditions claim. See, e.g., Spears v.

Ferguson, Civil No. 08-5203,

, at *6 (W.D. Ark.

Mar. 11, 2010) (objective component not satisfied when inmate

spent 19 hours in cell with residue from flooding, including

excrement); Davis v. Scott,

(5th Cir. 1998)

17 (objective component not established when plaintiff was placed

in a cell with blood on the walls and excrement on the floor);

Herring v. Tabor, No. 9:12-cv-1739 (GLS/DEP),

,

at *6 (N.D.N.Y. June 30, 2014) (adopting report and

recommendation in which magistrate judge acknowledged that “[a]n

inmate’s exposure to human waste may, in extreme situations,

satisfy the objective element of an Eighth Amendment analysis,”

but recommended dismissal of inmate’s inhumane-conditions claim

where inmate was obligated to clean up human feces in recreation

yard, but was exposed only briefly and was issued gloves)

(emphasis added).

In short, to the extent that Count III is based upon

exposure to the water that flooded into his, Cole has failed to

state a claim because he has not alleged, in the first instance,

that the flood water contained any human waste. But, even if he

had so alleged, he has not made allegations concerning the

conditions and duration of the resulting contamination

sufficient to allege a deprivation that satisfies the objective

component of an inhumane-conditions claim. Accordingly, the

court turns to the second aspect of Count III, Cole’s claim that

Cpl. Fleury violated his Eighth-Amendment rights by depriving

him of of a working toilet for approximately 15 hours.

18 B. Lack of a Flushable Toilet

As the court has already noted, constitutionally adequate

prison sanitation includes an inmate’s “ability to eliminate and

dispose of [his or her] bodily wastes without unreasonably

risking contamination.” Masonoff, 899 F. Supp. 2d at 788

(citation omitted). Here, however, Cole has fallen short of

stating an actionable claim based upon his lack of a working

toilet.

In Smith v. United States, the court adopted a report and

recommendation in which the magistrate judge determined that the

objective component of an inhumane-conditions claim was

satisfied by allegations that: (1) for two weeks, correctional

officers refused to flush the toilet in the plaintiff’s cell;

(2) the toilet overflowed, allowing feces and urine to flow onto

the floor; (3) the plaintiff was required to sleep on the floor,

near the raw sewage; and (4) he became ill from the odor of the

sewage, see No. 9:09-CV-729 (TJM/DRH),

, at *10

(N.D.N.Y. Feb. 3, 2011). Here, by contrast, Cole alleges only a

15-hour interruption of his ability to flush his toilet, does

not allege any overflow, and alleges no injury other than the

unpleasantness of having to smell his own waste.

Cole’s allegations place the conditions of his confinement

on the mild end of the spectrum of cases involving prison

19 toilets in which courts have found that plaintiffs have not

established the objective component of an inhumane-conditions

claim. See, e.g., Smith v. Copeland,

(8th Cir.

1996) (inmate was exposed to raw sewage from toilet overflow for

about four days, but alleged no adverse consequences from

exposure); Ortiz,

, at *8 (inmate was exposed to

waste from overflowing cell toilet on three occasions for no

more than 24 hours in total); Dennis v. Therman,

, 1261-63 (C.D. Cal. 1997) (water to cell toilets was shut

off for 36 hours following prison disturbance); Burgos v.

Canino,

(3d Cir. 2009) (inmate was

deprived of water and sanitary conditions for two days after

flood at prison) (citing Bell v. Wolfish,

(1979)); Willey v. Kirkpatrick, No. 07-CV-6484 (MAT),

, at *9 (W.D.N.Y. Feb. 4, 2013 (inmate’s toilet was shut

off for several days but inmate claimed neither overflow nor

illness resulting from smelling his own waste); Kidwell v.

Buchanan,

,

(9th Cir. 1993)

(unpublished table decision) (inmate’s toilet was disabled from

flushing for approximately 12 hours).

The court concludes by quoting from Odom v. Keane, in which

Judge Sotomayer addressed a prisoner’s claim that his jailors

violated his Eighth-Amendment rights by incarcerating him in a

20 cell in which the toilet was inoperable for ten hours per day

for several months:

Plaintiff’s claim that his toilet did not flush between the hours of 9:00 p.m. and 7:00 a.m. for a period of several months also fails to state a constitutional violation. “[R]easonably adequate sanitation and the ability to eliminate and dispose of one’s bodily wastes without unreasonably risking contamination are basic identifiable human needs of a prisoner protected by the Eighth Amendment. . . .” Whitnack v. Douglas County,

([8th] Cir. 1994). Although it is difficult to fathom how one toilet flushing mechanism, and not all of the flushing mechanisms on one water line, could malfunction on a regular basis only between the hours of 9:00 p.m. and 7:00 a.m., this condition does not amount to cruel and unusual punishment. While I have no doubt that such a situation would be patently offensive to plaintiff, the fact that plaintiff was made uncomfortable by the stench, these conditions in and of themselves do not sustain a constitutional claim. See Rhodes,

(inconvenience is considered a part of the penalty criminal offenders pay for their offenses against society). Plaintiff’s toilet functioned approximately twelve hours every day, time enough to dispose of plaintiff’s bodily wastes. Plaintiff makes no assertion that he risked contamination by contact with human waste.

Plaintiff has failed to prove the objective component of his claim, as required by Wilson[, 501 U.S. at 298].

No. 95 Civ. 9941(SS),

, at *5 (S.D.N.Y. Sept. 17,

1997). If the conditions in Odom did not satisfy the objective

component of an inhumane-conditions claim, the conditions

alleged in this case surely do not.

21 Based upon the foregoing, the court concludes that Cole has

not established the objective component of an Eighth-Amendment

inhumane-conditions claim based upon his 15-hour lack of access

to a flushable toilet. Accordingly, Cpl. Fleury is entitled to

judgment as a matter of law on Count III.

C. Count II

Count II is Cole’s state-law claim for assault and battery

against Cpl. Fleury and CO Dube. Defendants argue that they are

entitled to judgment as a matter of law on Count II because they

enjoy sovereign immunity from that claim. Rather than wade into

the merits of defendants’ sovereign-immunity argument, which is

rooted in state law, the court dismisses Count II on a different

ground. “Courts generally decline to exercise supplemental

jurisdiction over state claims if the federal predicate is

dismissed early in the litigation.” O’Connor v. Commonwealth

Gas Co.,

(1st Cir. 2001) (citing Camelio v.

Am’ Fed’n,

(1st Cir. 1998)). This case is in

its early stages. Cole’s federal claims are gone. The court

declines to exercise supplemental jurisdiction over Cole’s state

claim, which is, therefore, dismissed.

22 IV. Conclusion

For the reasons detailed above, defendants’ motion for

summary judgment, document no. 34, is granted. The clerk of the

court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 20, 2015

cc: Christopher Cole, pro se Lynmarie C. Cusack, Esq. Nancy J. Smith, Esq.

23