An Alabama federal district Court ruled state prisoner Toby Fountain stated a cruel and unusual punishment claim under 42 U.S.C. 1983 for being tied to a hitching post for 9 hours. Alabama DOC authorizes the use of a "restraining bar," that is better known as the "hitching post," to punish prisoners who refuse to work or disrupt their work squad. It is a horizontal bar 57 and 45 inches from the ground to hitch prisoners of various heights.
Prior to hitching a prisoner, the health care unit must be called to check if the prisoner has medical problems that would inhibit work. There is to be an hourly opportunity to use the bathroom. Despite suffering a back problem that caused Fountain severe pain, he was assigned to the Farm Squad at Staton Correctional Facility.
On May 2, 1994, Fountain was unable to keep up with his squad. Guard Daniel Talley observed Fountain's physical difficulties. Fountain explained his medical problems, that he was up at sick call all night, and was given a laxative by medical staff. Talley radioed Lt. Jesse Smith requesting Fountain be hitched. Smith came and heard Fountain's medical explanation. Smith marched Fountain to the lowest post and hitched him bending in a painful position.
Around 9:45 a.m. Fountain explained to Sgt. Adair and Lt. Robinson the laxative was working and requested to use the bathroom. Both left Fountain in the 90 degree heat. Around noon Fountain was forced to defacate in his pants. He then informed CO Fuller what happened.
After consulting Lt. Smith, Fuller did nothing. Fountain was not removed from the hitching post until the next shift, and was deprived of food and water the entire time he was hitched.
The District Court denied the guards' motion to dismiss. It remains to be determined at trial if their actions were deliberately indifferent to Fountain's health and safety. See: Fountain v. Talley, 105 F.Supp.2d 1345 (M.D. Ala. 2000). Note: This isn't a ruling on the merits.
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Related legal case
Fountain v. Talley
|Cite||104 F.Supp.2d 1345 (MD AL 2000)|
 Thus, the sole specific allegation against former Warden White is that he did not respond to Fountain's request to go to the bathroom. As the court has noted, infra, there are certain circumstances where the refusal of access to a bathroom coupled with other circumstances gives rise to an a serious deprivation. None of those cases suggest, however, that the refusal of a single request by a warden engaged in other business is "deliberate indifference" to a known risk of harm. The court, thus, concludes that the allegations of deliberate indifference against former Warden White are insufficient to strip him of his qualified immunity. White is due to be dismissed.
 (3) Lt. Jesse Smith
 Smith personally shackled Fountain to the hitching post after Fountain had specifically told Smith about his medical problems and Smith had seen that he had difficulty walking.*fn21 Smith also deliberately chose a lower hitching post because it would be more painful to Fountain. Smith then refused to release Fountain from the hitching post on two occasions even after Fountain had defecated in his pants.*fn22 Smith told Correctional Officer Fuller to "Let his smart ass stay just like he is then." The regulation concerning the use of the hitching post required that the health care unit be contacted before an inmate was placed on the hitching post and that inmates be given the opportunity to go to the bathroom once each hour. Smith violated this regulation. The facts as pled by Fountain, establish that Smith knew that there was a significant risk of serious harm to Fountain because of his back injury, his lack of access to a restroom and the deprivation of water and that Smith knowingly disregarded that risk. The motion to dismiss, insofar as it applies to him, is due to be denied.
 (4) Lt. Robinson
 Lt. Robinson was on duty and saw Fountain on the hitching post. Fountain told him that his lower back was hurting, that he had taken a laxative and needed to use the bathroom. Another inmate who was present also pleaded with Robinson to allow Fountain to use the bathroom.*fn23 Robinson did nothing to assist Fountain and went through the back gate into a small building. He left the small building and again saw Fountain. Fountain again asked Robinson to be allowed to use the bathroom and Robinson again ignored his plea.*fn24 As with Smith, the facts as pled by Fountain about his treatment establish that Robinson knew that there was a significant risk of serious harm to him and that Robinson knowingly disregarded that risk. The motion to dismiss, insofar as it applies to Robinson, is due to be denied.
 (5) Sergeant Adair
 At approximately 9:45 AM., Sergeant Adair came to the back gate of the prison which is in close proximity to the hitching post. He saw Fountain bent over the lower rail of the hitching post and writhing in pain. Fountain told Adair that he had a bad back and was having severe pain in his back and left leg, that he could confirm that information with the nurses in the health unit, that he had taken a laxative which was beginning to work and that he urgently needed to go to the bathroom.*fn25 Adair smiled at Fountain and made a phone call.*fn26 Adair then left the back gate area without providing any relief to Fountain. The facts, as pled by Fountain, about his treatment establish that Adair knew of a significant risk of serious harm to Fountain and knowingly disregarded that risk. The motion to dismiss, insofar as it applies to him, is due to be denied.
 (6) Correctional Officer Talley
 Talley was the farm squad officer who supervised the farm squad to which Fountain was assigned. Talley saw that Fountain was unable to keep up with his squad. Fountain explained his medical problems to Talley, including the fact that he had severe pain in his lower back which was causing severe leg pains making it very difficult to walk. He also told Talley that he had been up all night at sick call until 4:30 that morning and that he had been given a laxative by prison medical staff.*fn27 Despite these warnings about Fountain's physical problems, Talley asked that Fountain be placed on the hitching post. The facts, as pled by Fountain about his treatment, establish Talley knew that Fountain faced a significant risk of serious harm if he were placed on the hitching post and knowingly disregarded that risk. The motion to dismiss, as it concerns Talley, is due to be denied.
 (7) Correctional Officer Fuller
 After not being allowed to use the bathroom, Fountain was forced to defecate in his pants. Fountain told Fuller, an officer at the back gate, what had happened and Fuller responded, "I didn't put you there; my lieutenant did." Fuller then radioed Lieutenant Smith and asked if he could release Fountain and was told that he could release him only if he could return to his farm squad. Fountain explained to Fuller why he could not return to the farm squad. Fuller relayed the information to Smith and Smith refused to allow Fuller to release him. Fuller did not ignore Fountain's condition, but rather called Smith to see if Fountain could be released. Smith refused his request. Fuller cannot be said to have been deliberately indifferent if he responded "reasonably" to Fountain's request. Farmer v. Brennan, 511 U.S. at 844, 114 S.Ct. 1970. The facts as pled show that Fuller made no attempt to release Fountain other than to radio Smith. At the summary judgment stage, the court will have more facts on which to assess the reasonableness of Fuller's actions. On the facts, as pled, however, Fuller knew that Fountain had defecated on himself and did not release him to allow himself to clean up. Thus, he knew that Fountain faced a significant risk of serious harm because he was forced to remain on the hitching post covered in his own feces and knowingly disregarded that risk. The motion to dismiss, at it applies to Fuller, is due to be denied.
 IV. CONCLUSION
 For the foregoing reasons, it is hereby ORDERED that the motion to dismiss filed by the defendants on October 30, 1999 be GRANTED as to defendants Hopper, Herring, and White and DENIED as to defendants Smith, Robinson, Adair, Talley and Fuller.
 *fn1 The parties have since consented to have the magistrate judge exercise case dispositive jurisdiction pursuant to the provisions of 28 U.S.C. § 636(c).
 *fn2 The second amended complaint specifically dismisses all claims against defendants Henry, Shine, Dennis, Lane, mendez, Vaughn and Hollons.
 *fn3 White is now deceased. No one has filed a suggestion of death and Fountain has not attempted to add White's estate as a defendant.
 *fn4 This recitation of facts is taken from the plaintiff's complaint. At this stage of the proceedings, the court must accept the facts as pled by the plaintiff as true. Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th Cir. 1997).
 *fn5 Austin v. Hopper, 15 F. Supp.2d at 1240-44.
 *fn6 Id. at p. 1241.
 *fn7 Id. at p. 1242.
 *fn8 Second amended complaint ¶ 18-21.
 *fn9 Second amended complaint ¶ 22-28.
 *fn10 Second amended complaint ¶ 29-30.
 *fn11 Second amended complaint ¶ 40.
 *fn12 Second amended complaint ¶ 46.
 *fn13 Second Amended Complaint par. 47.
 *fn14 Second amended complaint ¶ 48-52.
 *fn15 To be sufficiently serious, a deprivation need not rise to the level of serious injury as that term is used in claims involving the use of excessive force. See Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
 *fn16 The court may consider the cumulative effect of adverse conditions of confinement when such conditions have a "mutually enforcing effect that produces the deprivation of a single identifiable human need such as food, warmth or exercise." Wilson v. Seiter, 501 U.S. at 304, 111 S.Ct. 2321.
 *fn17 The law can be "clearly established" for qualified immunity purposes only by decisions of the United States Supreme Court, the Eleventh Circuit Court of Appeals or the highest court of the state where the case arose. Santamorena v. Georgia Military College, 147 F.3d 1337, 1342 n. 4(11th Cir. 1998).
 *fn18 Second amended complaint ¶ 27.
 *fn19 Second amended complaint ¶ 28.
 *fn20 Second amended complaint ¶ 40.
 *fn21 Second amended complaint ¶¶ 24-26.
 *fn22 Second amended complaint ¶¶ 43-45.
 *fn23 Second amended complaint ¶ 36.
 *fn24 Second amended complaint ¶¶ 37-38.
 *fn25 Second amended complaint ¶¶ 31-32.
 *fn26 Fountain alleges that the phone call was made to Lieutenant Robinson but provides no facts to support that belief.
 *fn27 Second amended complaint ¶¶ 20-21.