ENTRY ON MOTION FOR SUMMARY JUDGMENT

DAVID HAMILTON, District Judge.

Named plaintiffs Kenneth Malone, Larry S. Denton, Sr., and James Robert Brown are all former inmates of the Clark County Jail. Plaintiffs have sued several Clark County officials and governing bodies alleging that severe under-staffing and inmate overcrowding created jail conditions that violated their constitutional rights as inmates. In addition to both state and federal constitutional claims, the plaintiffs have alleged several state tort claims. Plaintiffs seek only damages as relief.

The court previously certified two plaintiff classes. Class I, represented by plaintiffs Malone and Denton, is defined as those "individuals who were incarcerated at any time in the Clark County Jail after March 26, 1999, for 24 consecutive hours or more, but who were not incarcerated on March 26, 2001." Class I is the class of plaintiffs with claims arising under federal law. Those claims would be subject to the physical injury requirement of 42 U.S.C. § 1997e(e) if the class members had been prisoners when this action was filed on March 26, 2001. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (§ 1997e(e) does not apply to claims arising in custody if plaintiff was no longer a prisoner when action was filed). Class II, represented by plaintiff Brown, is defined as those "individuals who were incarcerated at any time after September 28, 2000, a date 180 days prior to the filing of the first notice of tort claim, for 24 consecutive hours or more." Class II is the class of plaintiffs with claims arising under state law that are subject to the notice requirement of the Indiana Tort Claims Act.

The defendants are Clark County Sheriff Michael Becher, the County Council of Clark County and all of its members from approximately 1999 to the present, and the Board of Commissioners of Clark County and all of its members from approximately 1999 to the present. All defendants are being sued in their individual and official capacities. Defendants have moved for summary judgment on all claims, and the motion raises a host of issues. As explained below, defendants' motion for summary judgment is granted. On the core issues concerning conditions at the Clark County Jail, plaintiffs have not come forward with evidence that would allow a reasonable jury to find that conditions were so poor as to violate minimal federal constitutional standards or that defendants acted with deliberate indifference to any condition that violated federal constitutional standards and caused any injury to any plaintiff.

The court is not saying that conditions at the Clark County Jail are desirable, wise, or prudent, or even that they meet the expected standards for Indiana jails. The evidence in this case nevertheless would not support an award of damages to any plaintiff.

I. Summary Judgment Standard

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving parties entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving parties must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing side.

II. Preliminary Matters

Evidence is admissible for purposes of summary judgment to the same extent that such evidence is admissible at trial. See Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) ("hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial"). Defendants have objected to virtually all of plaintiffs' evidentiary submissions. Plaintiffs have not responded to the objections. In a footnote to their statement of material facts, plaintiffs wrote: "should Defendants raise an issue about the admissibility of any of these exhibits, Plaintiffs ask for leave of court to supplement this statement with whatever is necessary to satisfy Defendants' objection." Pl. Statement of Material Facts at 1 n. 1. Plaintiffs' opportunity to respond to the objections is found under Local Rule 56.1(d), and not by order of this court. No leave of court was needed, and no response was filed. The court does not prepare preliminary or draft rulings on motions for summary judgment, and then invite the losing parties to supplement their submissions after they realize what they needed to submit. The time for plaintiffs to submit admissible evidence was in their first response to the motion for summary judgment, and no later than a surreply brief authorized by Local Rule 56.1(d) to respond to evidentiary objections.

A. Exhibits A-H, M, R, and S

Defendants object to Plaintiffs' Exhibits A-H, M, R, and S on the grounds that they have not been properly authenticated. Exhibits A-H all purport to be jail inspection reports with cover letters. Exhibit M appears to be an e-mail or letter from a jail inspector to one of plaintiffs' attorneys, but it is not sworn and has no affidavit or other document even authenticating it. Exhibit R appears to be a summary of grievances filed at the Clark County Jail, though it is not clear who compiled the summary or what data was used. Exhibit S appears to be a similar summary concerning maintenance reports, and it presents the same problems as Exhibit R. Both Exhibit R and Exhibit S are in the form of charts. It does not appear that the actual evidence summarized has been filed with the court.

With respect to Exhibits A-H, even if plaintiffs might easily have authenticated the documents and established the foundation for a hearsay exception, plaintiffs have not done so. On this record, defendants' objections must be sustained as to the entire reports. Exhibit M, in addition to not being authenticated, is also being offered for the truth of the matters asserted and so is hearsay. Defendants' objection to Exhibit M is also sustained.

Defendants' objections to Exhibits R and S are also sustained. Rule 1006 of the Federal Rules of Evidence permits the use of summaries, but the proponent must still establish a foundation for them. Needham v. White Laboratories, Inc., 639 F.2d 394, 403 (7th Cir. 1981) (reversing verdict based on summaries lacking a foundation). In this case, plaintiffs have not shown that they complied with Rule 1006 by authenticating the summaries or by showing that the underlying documentation is admissible as evidence. In any event, the summaries do not contain any evidence that would defeat summary judgment.

B. Exhibits I-K, N, O, and P

Defendants object to Plaintiffs' Exhibits I-K and N-P on hearsay grounds. Exhibits I-K and N-P appear to be copies of newspaper articles attributing various statements to Sheriff Becher and others. At least one article concerns this class action. See Pl. Ex. P. As defendants correctly point out, the newspaper articles are self-authenticating under Rule 902(6), but they also contain hearsay, including the reporters' statements about the various statements attributed to defendants. Direct evidence that a defendant made a statement would of course avoid the hearsay problem because such statements could be used as admissions, but plaintiffs have not taken that extra step. Defendants' hearsay objections to Exhibits I-K and N-P are sustained.

C. Exhibit L

Plaintiffs have also submitted the affidavit of William Smith, which was prepared for a separate case before this court, Smith v. Becher, Cause No. NA 01-88-C. The dates of Smith's confinement indicate that he is a member of plaintiff Class II but not Class I.

Defendants object to the Smith affidavit on the ground that it is not based on personal knowledge, citing Drake v. Minnesota Min. Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). In Drake, the Seventh Circuit stated that "`Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter, rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'" 134 F.3d at 887 (affirming district court's exclusion of portions of conclusory affidavit), citing Hadley v. County of Du Page, 715 F.2d 1238, 1243 (7th Cir. 1983). Smith's affidavit states that he was incarcerated at the Clark County Jail from January 28, 2000 until December 21, 2000, and from January 22, 2001 until April 17, 2001. Smith Aff. ¶ 1. The rest of the affidavit contains conclusory statements such as "because of the overcrowding, a cell boss system has developed," and "people who should be segregated are not because of the overcrowding." Id., ¶¶ 8, 10. "These are exactly the type of conclusory allegations that Rule 56 counsels should be disregarded on summary judgment." Drake, 134 F.3d at 887. The affidavit remains in the record, but it simply is not sufficient to raise genuine issues of material facts.

D. Statement of Material Facts

Local Rule 56.1 governs the presentation of motions for summary judgment and opposition to such motions in the Southern District of Indiana. Local Rule 56.1 requires a party opposing a motion for summary judgment to submit and to identify specifically any evidence the party relies upon to establish the existence of a genuine issue of material fact. Such specific references and submissions of evidence have always been at the core of the rule's requirements.

Local Rule 56.1(e) provides that "the Court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts: are specifically controverted in the opposing party's `Statement of Material Facts in Dispute' by admissible evidence. . . ."

Defendants have submitted a properly supported motion for summary judgment, attaching affidavits and portions of depositions as evidence. In response, plaintiffs have identified the evidence on which they rely in opposition to the motion for summary judgment. Plaintiffs have not controverted any specific assertions contained in defendants' statement of material facts. Accordingly, the defendants' statements of undisputed material facts are deemed admitted for purposes of the motion. Id.

E. Additional Specific Objections

Defendants raise several additional specific objections in their response to plaintiffs' Statement of Material Facts in Dispute. Issues not addressed explicitly have been found to be without merit or immaterial to the admissibility of the evidence in question. As a result of these rulings, defendants' objections to paragraphs 1, 2, 4-18, and 19 are all sustained. Defendants' objections to paragraphs 3 and 20 are overruled, though the evidence is not sufficient to defeat summary judgment. Finally, defendants' objections to paragraphs 21-22 are also sustained.

III. Undisputed Facts

With the applicable legal standard in mind, and based on the submission of admissible evidence, the following facts are either undisputed or reflect the evidence when viewed in the light reasonably most favorable to the plaintiffs.

Plaintiff Malone was incarcerated in the Clark County Jail from August 17, 1999 until November 23, 1999 for a probation violation. Second Am. Cplt. ¶ 5; Malone Dep. 14. Plaintiff Denton was incarcerated in the Clark County Jail from September 5, 2000 until November 27, 2000, also for a probation violation. Second Am. Cplt. ¶ 6; Denton Dep. 10. Plaintiff Brown was incarcerated in the Clark County Jail from September 12, 2000 to November 7, 2000, while awaiting trial on charges of aggravated assault and failure to appear. Second Am. Cplt. ¶ 8; Brown Dep. 7.

During their confinement, Malone, Denton, and Brown were assigned to the dayroom of a cell block and slept on the floor. Malone Dep. 17; Brown Dep. 14; Denton Dep. 14. Within two days of booking, each of the three was issued a mattress, sheets, and a blanket. Malone Dep. 17; Brown Dep. 14, 25; Denton Dep. 14-15. The mattresses were placed on the floor of the dayroom to provide the plaintiffs a place to sleep. There were not enough bunks to accommodate all of the inmates. Each bunk consisted of a solid metal sheet upon which the mattress would be placed. Malone Dep. 17-18; Denton Dep. 16-17.

There was an insufficient number of tables in the jail for all inmates to eat at tables. As a result, Malone, Denton, and Brown often ate their meals while sitting on steps, on a friend's bunk, on the floor, or on their own mattresses. Malone Dep. 20; Brown Dep. 17; Denton Dep. 26. Brown testified that there were some days when he did not receive enough food, but that the amount varied on a day to day basis. Brown Dep. 18-19.

The Clark County Jail had a policy for classifying inmates. Becher Aff., Ex. A. Sheriff Becher testified that while the overcrowding had made classifying and segregating inmates more difficult, inmates are still classified when they are booked into the jail. Id., ¶ 11. The classification is subject to review and revision "upon any subsequent event or on obtaining additional information." Id.

Weekly recreation at the facility is scheduled for two periods of one and a half hours each. Beard Aff. ¶ 2. Inmates are also free to do calisthenics and other exercises in the dayroom area. Malone Dep. 26; Denton Dep. 35; Brown Dep. 26.

Each individual cell in the general population of the Clark County Jail has its own toilet and washbasin. Becher Aff. ¶ 16. At least one cell is left open and vacant so that prisoners housed in the dayroom have access to a toilet and washbasin 24 hours a day. Malone Dep. 29; Brown Dep. 27-28; Becher Aff. ¶ 17. Malone testified that there was never a time when he could not get access to a toilet or washbasin when he needed to. Malone Dep. 29. However, Brown testified that there were several occasions when he had to wait to use the toilet. Brown Dep. 27-28. Showers were located in the dayroom, to which plaintiffs had daily access. Malone Dep. 28. Plaintiffs testified that they never had difficulty bathing on a daily basis. See Malone Dep. 29; Brown Dep. 29; Denton Dep. 42.

Upon being booked into the jail, each inmate is issued a uniform, towel, blanket, mattress cover, and pillow. Beard Aff. ¶ 4. Brown and Malone both received clothing, bedding, and a towel. Malone Dep. 24; Brown Dep. 25. Malone testified that he received a clean towel, clothes, and bedding approximately once a week. Malone Dep. 23-24. When Denton was booked into the jail, by contrast, he received a mattress and sheets, but no pillow or blanket, but then received a blanket from a friend almost immediately and another blanket from the jailers approximately two days later. Denton Dep. 15. He received two sheets in lieu of a pillow, and later took the pillow of an inmate who was released. Id. at 15-16.

The jail has a contract with an exterminator who comes to the jail monthly to spray for insects. Becher Aff. ¶ 25; Beard Aff. ¶ 11; see Denton Dep. 47. The exterminator will also come to address a particular problem or complaint. Beard Aff. ¶ 11. Furthermore, the jail provides the inmates with cleaning supplies daily. Malone Dep. 31; Denton Dep. 47-48; Brown Dep. 30. Malone testified that there was a problem with flies coming into the jail from the showers and drains. Malone Dep. 30. However, he also testified that the exterminator attempted to control the problem but was unsuccessful. Id. Denton testified that there was a problem with worms coming into the jail through the drains, but that a maintenance person took care of the problem. Denton Dep. 47. Brown further testified that there were problems with leaks and pooling water. Brown Dep. 31. None of the plaintiffs claim that they suffered any harm from the alleged unsanitary conditions. See Malone Dep. 31; Brown Dep. 31; Denton Dep. 48.

The Clark County Jail is inspected by a state jail inspector at least once a year. Cf. Becher Aff. ¶¶ 29-30. The inspection reports for 1999 and 2000 both indicated that there was sufficient airflow in the cell blocks. Id., ¶ 30.

All three plaintiffs deny having received any injury due to an alleged insufficient number of staff at the Clark County Jail. See Malone Dep. 32; Brown Dep. 32; Denton Dep. 49-50. Malone, Brown, and Denton also testified that they did not suffer any psychological injuries as a result of the conditions of the jail. See Malone Dep. 52; Brown Dep. 38; Denton Dep. 50, 83.

Additional facts are noted below, keeping in mind the standard for a motion for summary judgment, which requires that all admissible evidence in the record be viewed in the light reasonably most favorable to the plaintiffs as the non-moving parties.

IV. Discussion

Plaintiffs have filed suit under 42 U.S.C. § 1983, alleging that the Clark County Jail was impermissibly overcrowded and that this overcrowding caused inhumane conditions in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs also assert several claims under the Indiana Constitution and other state law. The court first addresses several issues that preclude individual liability of the defendants, then turns to the merits of plaintiffs' claims against the defendants in their official capacities.

A. Individual Liability — County Council Members

The Clark County Council is the fiscal body of the county. See Ind. Code § 36-2-3-2. The members of the County Council are elected officials, Ind. Code § 36-2-3-3, and the County Council is responsible for adopting the county's annual budget and tax rate, Ind. Code § 36-2-3-7. All claims against the individual members of the Clark County Council in their individual capacities must be dismissed based on the doctrine of legislative immunity.

When sued in their individual capacities, local legislators enjoy absolute immunity from suit under Section 1983 for their legislative activities. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); De la Biblia Abierta v. Banks, 129 F.3d 899, 903-04 (7th Cir. 1997) (reversing denial of summary judgment based on absolute legislative immunity for local aldermen). Plaintiffs' federal claims against the members of the County Council are based on the theory that the members failed to appropriate sufficient funds to provide for humane conditions in the jail. Passing a budget ordinance and appropriating funds clearly fall within the protected sphere of legislative activity. Bogan, 523 U.S. at 55 ("Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official."). Thus, on plaintiffs' federal claims, the members of the Clark County Council are entitled to legislative immunity from suit in their individual capacities.

The same conclusion applies to the plaintiffs' claims against the individual council members under Indiana law. Indiana law provides: "A member of a board, a committee, a commission, an authority, or another instrumentality of a governmental entity may not be named as a party in a civil suit that concerns the acts taken by a board, a committee, a commission, an authority, or another instrumentality of a governmental entity where the member was acting within the scope of the member's employment." Ind. Code § 34-13-3-5.

B. Individual Liability — Members of the Board of Commissioners

The Clark County Board of Commissioners acts as the county executive. Ind. Code § 36-2-2-2. According to state law, the Board of Commissioners "shall establish and maintain" a county jail. Ind. Code § 36-2-2-24(a). The members of the Board of Commissioners are also entitled to summary judgment.

On the state law claims, Ind. Code § 34-13-3-5, quoted above, bars any individual liability for actions taken as members of the Board of Commissioners. On the federal claims, the individual members of the Board of Commissioners are not entitled to legislative immunity because they are not legislators. Nevertheless, plaintiffs have not come forward with any evidence that would support a finding that any particular member of the Board of Commissioners has individual responsibility for any actionable wrong. The individual members of the Board of Commissioners are entitled to summary judgment on all claims against them in their individual capacities, without any need to address the scope of the Bogan holding regarding legislative acts by executive officials. See Bogan, 523 U.S. at 55.

C. Individual Liability — Sheriff Becher

The individual claims against Sheriff Becher present several issues. First, like the County Council members, Sheriff Becher in his individual capacity is also entitled to legislative immunity under Bogan on the federal claims to the extent they are based on his role in preparing and submitting proposed budgets to the Clark County Council.

On the state law claims against Sheriff Becher in his individual capacity, the Indiana Tort Claims Act provides that a "lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is: (1) criminal; (2) clearly outside the scope of the employee's employment; (3) malicious; (4) willful and wanton; or (5) calculated to benefit the employee personally." Ind. Code § 34-13-3-5(c). In addition, the "complaint must contain a reasonable factual basis supporting the allegations." Id. Plaintiffs have not put forth any facts that would support a theory that Sheriff Becher was acting outside the scope of his employment in anything he did relevant to this case. Rather, the nature of the claims — the administration and management of the Clark County Jail — is at the core of Sheriff Becher's employment. See, e.g., Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind.App. 1996) (holding that county employee's tort claim of wrongful discharge was based on acts within defendant county official's scope of employment). Also, as discussed below, there is no evidence that Sheriff Becher acted willfully, wantonly, or maliciously, let alone criminally or for his personal benefit. Thus, Sheriff Becher cannot be sued under Indiana law in his individual capacity, and summary judgment is granted on those claims.

On the remaining federal claims, Sheriff Becher has raised a defense of qualified immunity. Federal courts apply a two-part test to determine whether a government official is entitled to immunity from civil suit under 42 U.S.C. § 1983. Saucier v. Katz, 533 U.S. 194, 200-01 (2001); see also McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002); Marshall v. Teske, 284 F.3d 765, 771-72 (7th Cir. 2002). First a court asks whether the facts alleged demonstrate a constitutional violation when examined in the light most favorable to the plaintiff. Saucier, 533 U.S. at 201. If the facts as alleged reveal no constitutional violation, the inquiry ends and the officer prevails on the merits of the case. If the facts alleged would amount to a constitutional violation, the court next examines whether the right was "clearly established" at the relevant time. Id.; Marshall, 284 F.3d at 772. If both questions are answered in the affirmative, the official is not entitled to qualified immunity.

Plaintiffs point out that it has long been clearly established that overcrowded jails could lead to a constitutional violation. That much is certainly true, but it is not sufficient to defeat the qualified immunity defense. The challenge in applying qualified immunity doctrine is to frame the issue at the correct level of specificity. The ultimate question is not how a public official in the defendant's shoes would have answered an abstract question of constitutional doctrine. The question is whether a reasonable public official facing the factual circumstances the defendant faced would have recognized that his or her actions would violate the Constitution. That is precisely the issue decided in Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).

In the field of conditions of confinement, such as crowding levels, adequacy of bunks, tables, exercise and recreation, showers, toilets, sinks, clothing, bedding, towels, ventilation, medical care, staffing levels, and inmate classification, sufficiently extreme conditions combined with deliberate indifference can support individual liability against a sheriff or other local official responsible for jail management. As the vast body of case law on this topic shows, however, the boundaries between constitutional and unconstitutional conditions are not marked with great precision. See, e.g., Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997) (affirming summary judgment on claim that cells were too warm and stuffy during summer); Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988) (allowing inmates one shower per week constitutionally sufficient); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (depriving prisoner of toilet paper, soap, toothpaste and toothbrush while keeping him in filthy, roach-infested cell for a period of several days was not a constitutional violation); Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir. 1988) ("classification of inmates, whether or not desirable, is not a constitutional requirement."); Coughlin v. Sheahan, 1995 WL 12255, *2-3 (N.D.Ill. Jan. 12, 1995) (providing only one change of clothing in three month period did not violate Constitution). Compare also Robeson v. Squadrito, 57 F. Supp.2d 642, 647 (N.D.Ind. 1999) (nothing in the Constitution requires elevated bunks), with Marion County Jail Inmates v. Anderson, ___ F. Supp.2d ___, ___, 2003 WL 21557549, *1 (S.D.Ind. July 10, 2003) (holding sheriff in contempt for violations of court-ordered jail population caps and ordering that each inmate be given a bunk above the floor); and compare Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001) (finding that housing inmate for six months "in a cell the size of a phone booth without any meaningful chance to exercise" violated the constitution), with Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) (finding no Eighth Amendment violation where plaintiff could do pushups, sit-ups, and jog in place in his cell during a 70 day segregation).

As shown below in Part D, the court finds on the merits that plaintiffs have failed to come forward with evidence that would support a finding of unconstitutional conditions. Based on those conclusions, a fortiori, Sheriff Becher is entitled to qualified immunity on the federal claims against him in his individual capacity.

As a result of the issues addressed thus far, plaintiffs' federal and state claims against the defendants in their official capacities could still be viable. The federal official capacity claims require proof that the alleged constitutional violations were caused by a policy or custom of the local government entities. See Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978); Harris v. City of Marion, 79 F.3d 56, 58 (7th Cir. 1996). Plaintiffs "must point to either an express policy which caused the injury, a widespread practice that is so well-settled as to amount to a policy, or that the sheriff had the final policymaking authority for the decisions regarding the . . . treatment [plaintiffs] received." Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002) (affirming grant of summary judgment on § 1983 claim because plaintiff was unable to point to any custom or policy that caused his injury), citing Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 981 (7th Cir. 2000). For purposes of the day-to-day operation of the jail, the relevant policymaker is the sheriff, who is an independently elected official. See Weatherholt v. Spencer County, 639 N.E.2d 354, 356-57 (Ind.App. 1994). With respect to budget issues, the County Council is the relevant policymaker.

Given the divided responsibilities under Indiana law among county councils, boards of commissioners, and sheriffs for county jails, there is a danger in jail condition cases that each entity can blame the others for truly unconstitutional conditions. The sheriff can say that he has no control over the number of inmates assigned to the jail and that he is doing the best he can with inadequate funding from the county council. The county council in turn can blame the sheriff for not doing enough with adequate funding, and so on. See generally Marion County Jail Inmates v. Anderson, ___ F. Supp.2d ___, ___, 2003 WL 21557549, *1 (S.D.Ind. July 10, 2003) (holding sheriff in contempt for violating injunction on jail conditions, while finding that failures were not willful but reflected "the cumulative results of derelictions of duty in every branch and at every level of county, city, and state government"). In this case, the court need not sort through these issues of institutional responsibility because the plaintiffs have failed to show the existence of unconstitutional conditions in the Clark County Jail. The court now turns to the merits of the official capacity claims.

D. The Merits of the Eighth and Fourteenth Amendment Claims

Plaintiffs have alleged claims under both the Eighth and the Fourteenth Amendments. The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishment on convicted persons. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). Under the Due Process Clause of the Fourteenth Amendment, which applies directly to pretrial detainees, the proper inquiry is whether the conditions of confinement amount to punishment of the detainee. Bell v. Wolfish, 441 U.S. 520, 535 (1979). As the Seventh Circuit has taught on a number of occasions, however, that the distinction between the Eighth and Fourteenth Amendment makes "no practical difference" because claims brought by pre-trial detainees under the Fourteenth Amendment are to be analyzed under the Eighth Amendment test. Henderson v. Sheahan, 196 F.3d 839, 844 n. 2 (7th Cir. 1999), citing Higgins v. Correctional Medical Services of Illinois, Inc., 178 F.3d 508, 511 (7th Cir. 1999); Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003) (pretrial detainee was "entitled to at least the same protection against deliberate indifference to his basic needs as is available to convicted prisoners under the Eighth Amendment"); Estate of Cole v. Fromm, 94 F.3d 254, 259 n. 1 (7th Cir. 1996) (a "pretrial detainee's rights are `at least as great as the Eighth Amendment protections available to a convicted prisoner'"), quoting City of Revere v. Massachusetts General Hosp., 463 U.S. 239 (1983).

Thus, to demonstrate a constitutional violation on the part of the defendants for the conditions of his confinement, plaintiffs must prove both the objective component of the claim ("Was the [condition] sufficiently serious?") and the subjective or state of mind component ("Did the officials act with a sufficiently culpable state of mind?"). Wilson, 501 U.S. at 298; Tesch v. County of Green Lake, 157 F.3d 465, 473 (7th Cir. 1998).

1. Objective Conditions

To meet the objective test, the hardships suffered by the plaintiffs, either alone or in combination, must have deprived them of basic human needs, "of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); accord, James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992) ("not all prison conditions trigger eighth amendment scrutiny — only deprivations of basic human needs like food, medical care, sanitation, and physical safety."). The Supreme Court has instructed lower courts that "extreme deprivations are required to make out a conditions-of-confinement claim," Hudson v. McMillian, 503 U.S. 1, 9 (1992), and that such claims require proof of "significant injury," Porter v. Nussle, 534 U.S. 516, 528 (2002). See also Robeson v. Squadrito, 57 F. Supp.2d 642, 646 (N.D.Ind. 1999) ("The Constitution `does not mandate comfortable prisons' or jails, and only those deprivations denying `the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.'"), quoting Wilson v. Seiter, 501 U.S. at 298. Further, in an action like this seeking money damages, unlike cases seeking only injunctive relief, conditions that cause only a fear or risk of serious injury that never actually occurred do not meet the objective criteria for an Eighth Amendment claim. Babcock v. White, 102 F.3d 267, 271-72 (7th Cir. 1996).

The root of plaintiffs' claims is that the Clark County Jail was overcrowded. Overcrowding itself, however, is not an Eighth Amendment violation unless it leads "to deprivations of essential food, medical care, or sanitation. . . . [or] increase[s] violence among inmates or create[s] other conditions intolerable for prison confinement." Rhodes, 452 U.S. at 348.

In their brief opposing summary judgment, plaintiffs make clear that they are inviting this court to disregard controlling precedents of the Supreme Court and the Seventh Circuit. Plaintiffs "submit that this court is not obligated to blindly follow those precedents," for conditions of confinement claims are to be determined by consulting the "evolving standards of decency that mark the progress of a maturing society." Pl. Br. at 4, quoting Rhodes, 452 U.S. at 346. On a pivotal issue here, defendants argue that a general fear for a prisoner's safety is not compensable with damages under the Eighth Amendment, citing Babcock, 102 F.3d at 271-72 (holding that prisoner who was not assaulted by fellow inmates could not seek damages under the Eighth Amendment based on prison officials' past failure to protect the prisoner from inmates known to pose a danger to the prisoner, at least where exposure to risk of harm did not result from an official's malicious or sadistic intent), and Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997). Plaintiffs respond that they "challenge those holdings." Pl. Br. at 10. The court appreciates plaintiffs' candor. Plaintiffs are welcome to challenge those holdings before the Seventh Circuit by inviting that court to reconsider. The role of a district court in the Seventh Circuit, however, is self-evident: to follow controlling decisions of the Seventh Circuit.

Notwithstanding the Supreme Court's teaching in Hudson and Porter, plaintiffs also maintain that they do not need to show "extreme deprivations" or "significant injury" in this conditions of confinement case because nominal damages are available under the Eighth Amendment. See Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003) ("Although § 1997e(e) would bar recovery of compensatory damages `for' mental and emotional injuries suffered, the statute is inapplicable to awards of nominal or punitive damages for the Eighth Amendment violation itself."). Even if nominal damages are available for violations of the Eighth Amendment, though, plaintiffs must still prove a violation in the first place. Thus, plaintiffs are still required to prove that the conditions of their confinement were sufficiently serious to constitute cruel and unusual punishment.

As a result of the alleged overcrowding, plaintiffs claim, the jail's inmates experienced a number of conditions that they say violate the Eighth Amendment: that there were insufficient bunks and tables; that classification and segregation did not occur frequently enough; that they did not receive sufficient exercise and recreation; that there were problems with the toilets, showers, and washbasins; that the clothing, bedding, and towels were inadequate; that the ventilation system was inadequate; that there was not enough staff to safely monitor all inmates; and that the jail was not maintained in a safe and sanitary condition. Plaintiffs further argue that, even if the individual conditions did not rise to the level of a constitutional violation, they did when considered in combination. Plaintiffs have failed to come forward with evidence that would allow a reasonable jury to find that any of these conditions, taken individually or in combination, violated Eighth and Fourteenth Amendment standards.

a. Insufficient Bunks and Tables

Plaintiffs Malone, Denton, and Brown testified that during their incarceration, they were assigned to sleep in the dayroom of a cell block. All were issued mattresses that were placed on the floor rather than on suspended steel platforms. Courts have held that nothing in the Constitution requires elevated bunks for inmates. See, e.g., Robeson v. Squadrito, 57 F. Supp.2d 642, 647 (N.D. Ind. 1999) (collecting cases). The court assumes that crowded conditions, including mattresses on floors, can contribute to uncomfortable and even dangerous conditions in a jail. See Marion County Jail Inmates v. Anderson, ___ F. Supp.2d ___, ___, 2003 WL 21557549, *1 (S.D.Ind. July 10, 2003) (holding sheriff in contempt for violations of court-ordered jail population caps and ordering that each inmate be given a bunk above the floor). Plaintiffs in this case, however, have not come forward with evidence comparable to that presented in the Marion County case. Plaintiffs have not come forward with any evidence of significant injury or, in the words of Hudson, "extreme deprivation" that resulted from sleeping on mattresses on the floor.

Plaintiffs complain that they were required to sit on the floor or on bunks while eating meals due to an inadequate number of tables. However, while "eating on the floor is less comfortable than at a table, this side effect of overcrowding adds little to [plaintiffs'] efforts to state a constitutional claim." Chavis v. Fairman, 1994 WL 55719, *3 (N.D.Ill. Feb. 22, 1994). Again, plaintiffs have not shown any significant injury or extreme deprivation that resulted from the shortage of tables. The shortages of tables and bunks above the floor do not show a violation of the objective component of an Eighth or Fourteenth Amendment violation.

b. Classification, Segregation, and Security

Plaintiffs next contend that the jail's overcrowding has resulted in the lack of procedures for classification and segregation, and that this lack led to fear of physical attack and transmission of disease. Specifically, plaintiffs argue that the defendants' failure to screen inmates for communicable diseases and the subsequent failure to segregate those inmates with diseases amounts to a constitutional violation because the plaintiffs are forced to live in fear. Their primary complaint appears to be that they there was no mandatory screening and segregation of inmates who were HIV positive. See Pl. Br. at 9-10. In support of this proposition, plaintiffs cite Anderson v. Romero, 72 F.3d 518 (7th Cir. 1995), in which the Seventh Circuit held that it was permissible (not mandatory) for prisons to segregate inmates who had tested positive for HIV, and Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996), in which the Eighth Circuit held that assigning cellmates randomly, without regard to a classification system constituted cruel and unusual punishment due to the concern of physical violence.

The undisputed facts show that the Clark County Jail had a classification and segregation policy. See Becher Aff. Exs. A-C. Sheriff Becher testified that, while overcrowding made classification and segregation more difficult, those policies were carried out to the fullest extent possible. Id., ¶ 11. The undisputed evidence shows that the inmate screening process for classification included a medical evaluation. See id., Ex. A. In any event, without more, "classification of inmates, whether or not desirable, is not a constitutional requirement." Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir. 1988). Even more to the point, none of the plaintiffs claim to have experienced any harm, other than fear, as a result of the allegedly inadequate classification system. At least absent willful intent by a defendant to cause fear, an inmate's mere fear of harm will not support a finding of a constitutional violation. See Babcock v. White, 102 F.3d 267, 272-73 (7th Cir. 1996); Goss v. Sullivan, 839 F. Supp. 1532, 1536-37 (D.Wyo. 1993) (collecting cases; failure to implement prison wide screening and segregation of HIV positive inmates did not amount to a constitutional violation). Problems in the jail's classification system may create serious risks that could cause harms (and liability), and that could call for injunctive relief in some cases. See Harris v. Fleming, 839 F.2d 1232, 1234 (7th Cir. 1988), citing Pugh v. Locke, 406 F. Supp. 318 (M.D.Ala. 1976), aff'd as modified sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781 (1978), and Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), as cases showing needs for injunctive relief to deal with abysmal jail conditions. In the absence of resulting harm to a plaintiff, however, there is no viable claim for damages.

c. Exercise and Recreation

Malone testified that he was taken to the recreation area once a week for approximately one hour. Malone Dep. 24-25. Denton testified that he was taken to recreation three times a week, but that at one time he went one and a half weeks without recreation because of a construction project at the facility. Denton Dep. 72. Brown testified that inmates were supposed to receive recreation time twice a week for approximately three and a half hours, but that he did not always receive it. Brown Dep. 26.

According to jail policy, each inmate is supposed to receive two periods of recreation each week. Beard Aff. ¶ 2. Each period is supposed to last for one and a half hours. Id. If recreation time must be cancelled, the guards are instructed to reschedule the recreation period within the week. Id., ¶ 3. The recreation periods take place in the recreation room, which opens into an outdoor recreation area and is equipped with a basketball goal. Denton Dep. 34; Malone Dep. 25; Brown Dep. 26. In addition, plaintiffs testified that they were permitted to exercise in the dayroom by doing pushups and some calisthenics. Malone Dep. 26; Denton Dep. 35; Brown Dep. 26.

The complete absence of the ability to exercise may rise to a constitutional violation, but "short-term denials of exercise may be inevitable in the prison context and are not so detrimental as to constitute a constitutional deprivation." Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001) (finding that housing inmate for six months "in a cell the size of a phone booth without any meaningful chance to exercise" violated the constitution); Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) (finding no Eighth Amendment violation where plaintiff could do pushups, sit-ups, and jog in place in his cell during a 70 day segregation); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) ("Lack of exercise may rise to a constitutional violation in extreme and prolonged situations where movement is denied to the point that the inmate's health is threatened."). By comparison, plaintiffs in this case were allowed weekly recreation time in a recreation room and allowed daily access to a dayroom in which they could do calisthenics and pushups. Even if they were not able to use all scheduled opportunities, the evidence does not show a constitutional violation.

d. Toilets, Washbasins, and Showers

Plaintiffs next argue that they did not have sufficient access to functional toilets, washbasins, and showers. Each individual cell in the Clark County Jail is equipped with its own toilet and washbasin. Becher Aff. ¶ 16. One cell in each block is left open at all times so that inmates housed in the dayroom have access to a toilet and washbasin. Malone Dep. 29. The showers are located in the dayroom. They are unlocked at approximately 6:00 a.m. and remain open until approximately 11:00 p.m. Denton Dep. 42; Malone Dep. 29.

Plaintiffs' only evidence about access to toilets is that they occasionally had to wait in line. Malone Dep. 29; Denton Dep. 41; Brown Dep. 28. Plaintiffs also testified that they had no problem gaining access to the showers. Malone Dep. 29; Denton Dep. 42; Brown Dep. 29. Brown testified that he was able to take a shower daily. Brown Dep. 29. To the extent there were plumbing problems from time to time, plaintiffs have not shown that defendants failed to respond with repairs. Consequently, plaintiffs have not been deprived of any constitutionally required access to showers, toilets, or washbasins. See Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988) (allowing inmates one shower per week constitutionally sufficient); cf. Boland v. Coughlin, 622 F. Supp. 736, 737 (E.D.N.Y. 1985) ("In short, the inconvenience of not having bathroom facilities in plaintiff's cell does not violate the eighth amendment proscriptions against conditions which `shock the conscience,' are `barbarous,' or `result in a deprivation of the minimal civilized measures of life's necessities.'").

e. Clothing, Bedding, and Towels

Plaintiffs also argue that having one's clothes and bedding laundered only once a week, particularly when taken in conjunction with the other allegations, amounts to a constitutional violation. Plaintiffs offer no support for this proposition.

On entry to the general population of the Clark County Jail, each inmate is supposed to be issued a uniform, towel, blanket, pillow, and sheets for his mattress. Beard Aff. ¶ 4. Malone testified that he received a clean uniform, clean blankets and sheets, and a clean towel once a week. Malone Dep. 23-24. Denton testified that when he was booked in, he received sheets, but no blanket or pillow. Rather than request those items, he testified, he simply took them from other inmates who either had extras or were being booked out of the jail. Denton Dep. 15-16. However, Denton also testified that the jail provided him with a blanket approximately two days later. Id. at 15, 33. Brown testified that he received a blanket, sheets, a pillow, and a towel, but he was not happy with the quality. Brown Dep. 25. The clothing and bedding should be laundered once a week. Beard Aff. ¶ 5. Brown and Denton both testified that while the clothing was being washed, the inmates had no clothes to wear except their underwear or a blanket. Brown Dep. 23; Denton Dep. 31. Denton testified that they were left without clothes for approximately five hours at a time. Denton Dep. 31-32.

Given the other conditions that have been held permissible, these allegations do not amount to a constitutional violation. See Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (negligently depriving prisoner of toilet paper, soap, toothpaste and toothbrush while keeping him in filthy, roach-infested cell for period of days did not violate Constitution where prisoner suffered no demonstrable harm); see also Coughlin v. Sheahan, 1995 WL 12255, *2-3 (N.D.Ill. Jan. 12, 1995) (providing only one change of clothing in three month period did not rise to level of constitutional violation); Chavis v. Fairman, 1994 WL 55719, *5 (N.D.Ill. Feb. 22, 1994) (providing inmate with one change of clothing once every three weeks did not violate the Constitution).

f. Maintenance and Ventilation

Plaintiffs next allege that the defendants failed to maintain the jail in a safe and sanitary condition. They argue that they feared physical violence and that the jail had pest infestations and was unsanitary. Plaintiffs further ask the court "to look at all of the evidence presented by the Plaintiffs in support of this claim" without pointing to any specific facts that would support a finding of unconstitutionally unsanitary conditions. See Pl. Br. at 12. Even if plaintiffs had submitted admissible evidence to support this claim, this unguided invitation would not be sufficient to defeat summary judgment. A district court "is not required to `wade through improper denials and legal argument in search of a genuinely disputed fact.'" Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (judges need not conduct unguided hunt for treasures buried in the evidence).

Malone testified that during his incarceration, there was an infestation of fruit flies. Malone Dep. 30. Denton complained that there were black worms coming up from the sinks. Denton Dep. 47. The jail has a contract with an exterminator who comes to the jail once a month to spray for insects. Beard Aff. ¶ 11. The exterminator will also come to address specific problems. Id. In both instances, exterminators were called to address the problem. However, while the black worms were eradicated with one spraying, Denton Dep. 47, the fruit flies proved to be more persistent. Malone Dep. 30 (exterminator was unable to remove fruit flies).

The Seventh Circuit has stated that prolonged pest infestations may violate the Eighth Amendment. See Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996) ("sixteen months of infestation and significant physical harm" sufficiently implicate the constitution to defeat a motion to dismiss). However, in Antonelli, the plaintiff had alleged "cockroaches that were `everywhere,' `crawling on his body' (along with mice) and `constantly awaken[ing]' him, and `causing the environment to be unsanitary.'" Id. By contrast, the facts of this case do not rise to such levels. None of the plaintiffs identified any harm they suffered from these infestations. Furthermore, even if these conditions were sufficiently serious, the fact that exterminators were called would negate the second element of plaintiffs' case — that the officials were deliberately indifferent to the problem — at least in the absence of evidence that the effort was a deliberately hollow gesture. Cf. id. (spraying for insects only twice in a 16-month period indicated some concern for plaintiff's rights but did not automatically bar a finding of deliberate indifference).

With respect to the issue of ventilation, at most, plaintiffs have alleged that at times the air was "stale," "nasty," or "funky." See Brown Dep. 27; Malone Dep. 26-27. Plaintiffs have not offered any admissible evidence of a serious ventilation problem, let alone one that had risen to the level of a constitutional violation. See Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997) (affirming summary judgment on claim that cells were too warm and stuffy during summer). Plaintiffs have come forward with some evidence of cold temperatures from time to time. See Denton Dep. 38-40; Brown Dep. 24. They have not made the showing of persistent cold and inadequate response that would support a finding of a constitutional violation. Cf. Dixon, 114 F.3d at 643-44 (collecting cases and reversing summary judgment for prison officials where freezing cold in cells persisted for several winters, without additional clothing and blankets for prisoners).

g. Adequacy of Staff

Plaintiffs next argue that inadequate staffing caused an increase in violence, fear, and intimidation. Malone testified that it was difficult to get a guard's attention, but that he was never harmed by this deficiency. Malone Dep. 32. Brown testified that the staffing level resulted in fights among the inmates and the inability to get his pencils sharpened. Brown Dep. 32. Denton also testified that the lack of staff made it more difficult for him to go to the law library and slowed the delivery of clothing and paperwork. Denton Dep. 48. The only incident of violence in which any plaintiff was involved was when Denton, as the instigator, attempted to retrieve from another inmate a personal item that had been stolen. See id. at 48-49. As noted above, the fear of assault alone does not rise to the level of a constitutional violation. Babcock v. White, 102 F.3d 267, 271-72 (7th Cir. 1996).

h. The Combination of Conditions

Plaintiffs finally argue that all of these conditions taken together show a constitutional violation. See Pl. Br. at 8-9. "Some conditions of confinement may establish an Eighth Amendment violation `in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets." Wilson v. Seiter, 501 U.S. 294, 304 (1991) (emphasis in original). Plaintiffs have not come forward with evidence that would support a finding of any relationship or mutually enforcing effects between any of the allegations that have been made. This theory fails.

2. The Subjective Element

Even if plaintiffs had raised a genuine issue of fact as to whether objective conditions at the Clark County Jail violated the Eighth and Fourteenth Amendments, they have not come forward with evidence that Sheriff Becher or the County Council or Board of Commissioners acted with deliberate indifference to those conditions.

To establish that defendants had a sufficiently culpable state of mind, plaintiffs must put forward evidence from which a reasonable jury could conclude that a defendant acted with deliberate indifference to a serious risk to their health or safety. Wilson, 501 U.S. at 302-303. "The key is that the individuals must have actual knowledge of the risk." Washington v. LaPorte County Sheriff's Dep't, 306 F.3d 515, 518 (7th Cir. 2002) (emphasis in original); see Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992) ("The minimum intent required is `actual knowledge of impending harm easily preventable.'") (emphasis in original). A jury may infer the subjective awareness of a substantial risk from proof of the obviousness of a risk, but the jury is not required to make that inference. See Estate of Cole v. Fromm, 94 F.3d 254, 259 (7th Cir. 1996), citing Farmer v. Brennan, 511 U.S. 825, 844 (1994). At the summary judgment stage, however, plaintiffs are entitled to the benefit of that inference if the risk was sufficiently obvious to make the inference reasonable.

Plaintiffs have made no showing of deliberate indifference on the part of Sheriff Becher or the other defendants. In arguing deliberate indifference, plaintiffs cite generally to their statement of material facts. The court assumes that Sheriff Becher and the other defendants knew that the Clark County Jail had more inmates than was desirable. However, to show a violation of their Eighth and Fourteenth Amendment rights, plaintiffs must show not only that the defendant officials knew of a dangerous condition, but also that the defendant official disregarded that risk and failed to respond to it reasonably. Farmer, 511 U.S. at 847.

During the relevant time period, the undisputed facts show that Sheriff Becher attempted to cut the inmate population by not renewing a contract to house federal prisoners and by making repeated requests to the Indiana Department of Correction to remove inmates who had already been sentenced to state custody. Becher Aff. ¶ 7. In addition, there had been recommendations to purchase stackable bunks that could be removed from the dayroom during the day to allow for more space to move. Sheriff Becher testified that he elected not to request those bunks in order to request additional funding for safety items, such as security systems and increased staffing. Id., ¶ 36. As a result, attempts were made to assign inmates who had medical problems to the bunks. Id., ¶ 5.

With respect to the issue of inadequate table space, Sheriff Becher determined that additional permanent tables would have decreased the amount of living space available, and non-permanent tables would have created a safety hazard to the staff and inmates. As a result, Sheriff Becher testified that the jail policy was changed to allow inmates to eat meals while sitting on their bunks. Id., ¶ 6.

Showers were available daily, and all inmates had 24-hour access to toilets. Opportunities for exercise were constitutionally adequate. Sheriff Becher testified that during the summer of 2000, he was advised of the need for more uniforms. He further testified that he was not aware that the situation had resulted in the inability to provide inmates with an exchange of clothing. See id., ¶ 23. As a result, on July 12, 2000, he sought an additional appropriation for clothing, which was approved on August 14, 2000. Id., ¶ 24.

With respect to issues of sanitation, all jail inspection reports for the years 1999 and 2000 indicated that there was sufficient airflow in the cell blocks. Id., ¶ 30. All complaints regarding temperature are referred to the maintenance staff who address the problem in a reasonably prompt manner. Id., ¶¶ 31-33. Furthermore, the jail has a contract with an outside exterminator who sprays for bugs on a monthly and as needed basis. The local board of health inspects the kitchen twice a year, and any deficiencies are noted and addressed. Id., ¶ 27. In addition, a second full-time maintenance position was approved in 2000. Id., ¶ 28.

The jail has a classification policy whereby each inmate is screened and assigned a classification. Attempts are made to house inmates according to their classifications, and reclassifications are done as needed. Also, procedures are in place to segregate inmates for disciplinary, medical, and classification purposes.

In response, plaintiffs argue in part that Sheriff Becher failed to comply with Indiana Code § 35-33-11-3, which allows courts to transfer inmates upon the request of the local sheriff if the local jail is overcrowded. However, that statute applies only when another sheriff or the commissioner of the Indiana Department of Correction has first agreed to accept custody of the inmate. See id. There is no indication in the record that any other sheriff was willing to accept any inmates from the Clark County Jail or that DOC was willing to speed up its acceptance of inmates from the Clark County Jail. Under the circumstances, a reasonable juror could not conclude that Sheriff Becher's actions amounted to deliberate indifference to a known risk, even if plaintiffs had raised a genuine issue of material fact regarding the objective conditions in the jail.

E. Prison Litigation Reform Act

Defendants argue that the requirement for exhaustion of administrative remedies requirement in the Prison Litigation Reform Act ("PLRA") applies to defendant Brown. See 42 U.S.C. § 1997e(a). If the PLRA applied to Brown's claims, he would be barred from asserting them for failing to exhaust administrative remedies because he was incarcerated in the Clark County Jail at the time this suit was filed. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). However, Brown's claims as representative of a class that asserts only state law claims are not subject to the PLRA exhaustion requirement, which applies to actions "under section 1983 of this title, or any other Federal law. . . ." 42 U.S.C. § 1997e(a).

F. Claims for Damages Under the Indiana Constitution

Plaintiffs also seek damages for alleged violations of their rights under Sections 15 and 16 of Article I of the Indiana Constitution. Section 15 provides: "No person arrested, or confined in jail, shall be treated with unnecessary rigor." Section 16 provides in part: "Cruel and unusual punishments shall not be inflicted." Defendants contend that alleged violations of these provisions do not support an implied cause of action for damages under Indiana law. The court agrees.

The Supreme Court of the United States has recognized an implied right of action under the United States Constitution to sue individual federal agents for damages for violations of federal constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Indiana Supreme Court has never recognized such an implied right of action for damages under the Indiana Constitution, though it has allowed damages under the "just compensation" provisions that explicitly authorize damages when private property or a person's "particular services" are taken for public purposes.

Recognizing such an implied right to sue for damages under the Indiana Constitution would work a dramatic change in Indiana law, in the relationships between citizens and their state and local governments, and between those governments and their employees. If such a step is to be taken, it will need to be taken by the Indiana courts, not by a federal court whose duty is to apply existing Indiana law. See Craig v. Christ, No. IP 96-1570-C H/G, Entry on Def. Motions for Summary Judgment and to Dismiss and City's Motion to Strike (S.D.Ind. Dec. 15, 1998). Recent decisions in this district have consistently reached the same conclusion. See, e.g., Willits v. Wal-Mart Stores, Inc., 2001 WL 1028778, *15 (S.D. Ind. July 30, 2001) (McKinney, J.); Pearson v. Indiana High School Athletic Ass'n, 1999 WL 33117389, *3-4 (S.D.Ind. Feb. 8, 2000) (Tinder, J.).

Plaintiffs rely on Discovery House, Inc. v. Consolidated City of Indianapolis, 43 F. Supp.2d 997, 1004 (N.D.Ind. 1999), in which the court predicted that the Indiana Supreme Court would imply a cause of action for violations of the equal protection provision of the Indiana Constitution. As this court has written before, it respectfully disagrees with Discovery House on this point. The court in Discovery House acknowledged that the Indiana courts had not decided the issue. In making its prediction, the court relied on the Indiana Supreme Court's decision in Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991), which assumed that compensation would be available in a proper case under the Indiana Constitution provision that a person's "particular services" not be demanded for public use without just compensation. The Discovery House court also cited Orr v. Sonnenburg, 542 N.E.2d 201 (Ind.App. 1989), which was an earlier step in the same case and involved the same "particular services" provision. Bayh v. Sonnenburg thus dealt with a constitutional provision that explicitly provided for "just compensation." It provides no reliable basis for predicting that the state court would find a new implied right of action for violating other constitutional provisions that lack such explicit authority for damages.

To support its prediction on this point, the court in Discovery House also cited Hilburt v. Town of Markleville, 649 N.E.2d 1036, 1041 (Ind.App. 1995), which simply assumed for purposes of argument that a cause of action might be implied under the "due course of law" provision of the Indiana Constitution, but ruled against the plaintiff on other grounds. The Hilburt court's assumption for purposes of argument, while resolving the case on other grounds, offers no reliable basis for predicting such a major shift in Indiana law.

In short, the cases cited in Discovery House do not, in this court's view, support the prediction that the Indiana Supreme Court would revise state law in such an important way as to recognize an implied cause of action for damages for violating provisions of the Indiana Constitution that do not expressly provide for just compensation. The court must also note that the eventual final judgment for plaintiff in Discovery House was reversed and judgment for defendant was ordered by the Seventh Circuit, without reaching the Indiana constitutional issue. See Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277 (7th Cir. 2003).

Finally, the nest of issues surrounding plaintiffs' claims in this case illustrates the complexities that the state courts would face if they were to imply a cause of action for damages from a constitutional provision. Who should be liable? Individual officials, as under Bivens, and if so, which ones? Or the responsible agencies of local government, or both? Do principles of respondeat superior apply to such claims? Are any defenses of immunity available, such as the federal doctrines of qualified immunity and absolute immunity for prosecutors, judges, and legislators, or the state law doctrine of immunity for discretionary actions? Are punitive damages available against any defendants? These are matters that the Indiana legislature has addressed in enacting and amending the Indiana Tort Claims Act. With implied causes of action under the Indiana Constitution, however, courts would have to resolve these matters one case at a time, with little guidance from the Constitution itself.

For these reasons, plaintiffs' claims for damages under the Indiana Constitution fail as a matter of law.

G. Claims for Damages Under the Indiana Jail Standards

Pursuant to a statutory directive, Ind. Code § 11-12-4-1, the Indiana Department of Correction has promulgated the Indiana Jail Standards as administrative regulations. See 210 Ind. Admin. Code § 3-1-1 et seq. Plaintiffs claim that alleged violations of the Indiana Jail Standards entitle them to damages. Second Am. Cplt. ¶ 62. Defendants argue that there is no implied private cause of action under the Indiana Jail Standards. Plaintiffs have not responded to this argument.

At a threshold level, plaintiffs have not identified any specific violations of the Indiana Jail Standards. The most specific standard that might apply here requires jails to provide inmates with clean clothing weekly and to ensure that each inmate has the opportunity to shower three times a week. See 210 Ind. Admin. Code § 3-1-10. These standards appear to exceed federal constitutional requirements. Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988) ("No doubt Americans take the most showers per capita of any people in the history of the world, but many millions of Americans take fewer than three showers (or baths) a week without endangering their physical or mental health, and abroad people as civilized and healthy as Americans take many fewer showers on average, as every tourist knows."); but see id. at 1317 (Cudahy, J., dissenting in part) (also addressing global bathing habits, and arguing that district court did not clearly err by requiring three showers per week for inmates in solitary confinement); see also Pritchett v. Page, 2002 WL 1129891, *7 (N.D.Ill. Aug. 9, 2000) (dismissing claim where plaintiff received one clean uniform each month and clean sheets every three weeks); Coughlin v. Sheahan, 1995 WL 12255, *2-3 (N.D.Ill. Jan. 12, 1995) (providing only one change of clothing in three month period did not rise to level of constitutional violation); Chavis v. Fairman, 1994 WL 55719, *5 (N.D.Ill. Feb. 22, 1994) (providing inmate with one change of clothing once every three weeks did not violate the Constitution). The undisputed facts of this case demonstrate that plaintiffs had the opportunity to shower daily and received clean clothing and bedding on a weekly basis.

In addition, as a general rule, a state's administrative regulations do not provide the source of an implied cause of action for damages against a local government. Rather, would-be plaintiffs must look to the statute to determine whether an express or implied cause of action is permitted. The Indiana courts have stated that "when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. `When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.'" Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind.App. 1991), citing National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 459 (1974); accord, Vaughn v. Daniels Co. (West Virginia), Inc., 777 N.E.2d 1110, 1134 (Ind.App. 2002) (declining to imply private cause of action in act containing "elaborate scheme for monitoring compliance with the safety regulations for the protection of coal miners"); cf. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1260 (Ind. 2000) ("As a general rule, a private party may not enforce rights under a statute designed to protect the public in general and containing a comprehensive enforcement mechanism."). See also Groce v. Eli Lilly and Co., 193 F.3d 496, 503-04 (7th Cir. 1999) (holding that Indiana law did not provide implied common law remedy for discharge of employee in retaliation for complaining about health or safety issue; state statute on occupational safety and health provided the intended remedy under state law).

The Indiana legislature has provided a specific remedy for failures to comply with the jail standards. Under Indiana Code § 11-12-4-2, if the Commissioner of the Department of Correction provides notice that a county jail does not comply with the Indiana Jail Standards, the sheriff may file suit in a circuit court against the "board of county commissioners or county council for appropriate mandatory or injunctive relief." Nothing in the statute suggests that the legislature intended to give inmates or anyone else a private cause of action for damages, and the court sees no basis for implying one. See Coons, 567 N.E.2d at 852. Thus, plaintiffs' claims for damages under the Indiana Jail Standards also fail as a matter of law.

H. Intentional Infliction of Emotional Distress

Defendants argue that plaintiffs cannot establish their claims for intentional infliction of emotional distress, which are not the subject of a class action. To state a claim for intentional infliction of emotional distress, each individual plaintiff must demonstrate that the defendants, "by extreme and outrageous conduct intentionally or recklessly cause[d] severe emotional distress to" the plaintiffs. Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). Thus, an essential element of the claim is that the individual must have suffered severe emotional distress.

According to the named plaintiffs' own testimony, none suffered any kind of emotional or psychological harm at the hands of the defendants. See Malone Dep. 52; Denton Dep. 50, 83; Brown Dep. 38. Furthermore, there is no evidence that any of the alleged conduct was directed specifically or intentionally towards these three individual plaintiffs. Plaintiffs have not rebutted this evidence submitted by defendants. Based on the record evidence, no reasonable jury could find in favor of plaintiffs on these claims. Accordingly, defendants' motion for summary judgment on these claims is granted.

I. Negligence Claims

Plaintiffs have alleged that defendants committed the torts of failure to protect and failure to maintain. Second Am. Cplt. ¶¶ 57, 60. Under Indiana law, these claims are not recognized as independent tort theories but fall under the rubric of general negligence claims. Defendants argue that plaintiffs cannot establish the two essential elements of the claim for negligence. Again, plaintiffs have not responded with any particularity, nor have they come forward with evidence that would preclude summary judgment. See Pl. Br. at 18. That failure is a sufficient basis for granting summary judgment. See Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003) ("Although this Court recently noted that respondeat superior liability exists in Indiana tort law and that under Indiana law summary judgment is generally not appropriate in negligence actions, because Palmer failed to delineate his negligence claim in his district court brief in opposition to summary judgment . . . his negligence claim is deemed abandoned.") (citations omitted).

In any event, the court agrees with defendants that no reasonable juror could conclude that defendants acted negligently toward the plaintiffs so as to cause them harm. To "establish a claim of negligence, a plaintiff must show: (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach proximately caused the plaintiff's injury." Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 970-71 (Ind. 1999). Defendants argue that plaintiffs are unable to demonstrate the second and third elements of the claim. As a basic principle, "there can be no tort without an injury." Midwest Commerce Banking Co. v. Elkhart City Centre, 4 F.3d 521, 524 (7th Cir. 1993). Here, there simply is no evidence of a compensable injury, so defendants are entitled to summary judgment on these claims. The court need not address defendants' arguments concerning immunities under the Indiana Tort Claims Act, such as immunity for performance of discretionary functions. See Ind. Code § 34-13-3-3(7).

J. Punitive Damages

In their complaint, plaintiffs have also requested punitive damages. Punitive damages are not recoverable against defendants in their official capacities in a Section 1983 suit. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Punitive damages against the defendants in their individual capacities are available only upon a showing of conduct motivated by malice or evil intent. Erwin v. County of Manitowoc, 872 F.2d 1292, 1299 (7th Cir. 1989). Plaintiffs have not come forward with evidence that would support a finding that any defendant acted with malice. Punitive damages also are not available under the Indiana Tort Claims Act. Ind. Code § 34-13-3-4(b). Accordingly, even if any claim survived summary judgment on the merits, defendants would be entitled to summary judgment on the punitive damages request regarding all counts.

K. Class Issues

In response to the motion for summary judgment, which pointed out the absence of evidence that any of the named plaintiffs suffered any cognizable harm from conditions at the Clark County Jail, plaintiffs reminded the court that the named plaintiffs' claims were not required to be identical to those of all class members. Pl. Br. at 2. This response has prompted the court, which has a duty to protect the interests of absent class members, to consider whether the named representatives could still adequately represent the interests of absent class members, as the court found they could when certifying the plaintiff classes.

If plaintiffs and their counsel had come forward with evidence tending to show that any absent class members had suffered some significant harm from the jail conditions that might support at least individual claims for damages, the court would reconsider its decision granting class certification, or at least the adequacy of the named class representatives. In this case, however, the plaintiffs and their counsel have had ample opportunity, ability, and incentive to find and develop such evidence if it existed. It apparently does not exist. Accordingly, the court is satisfied that the original decision to certify the plaintiff classes was correct. The final judgment in this action shall apply to all class members who did not opt out.

V. Conclusion

For the foregoing reasons, defendants' motion for summary judgement is granted on all claims. Final judgment shall be entered accordingly.

So ordered.