Opinion
Case No. 3:16-cv-291-NJR-DGW
11-28-2018
FERNANDO GOMEZ, Plaintiff, v. JOSHUA SCHOENBECK, MICHAEL ATCHISON, RICHARD HARRINGTON, BARBARA MUELLER and KEVIN E. REICHART, Defendants.
REPORT AND RECOMMENDATION
WILKERSON, Magistrate Judge :
Pending before the Court is a Motion for Summary Judgment filed by Defendants Atchison, Harrington, Mueller, Reichert and Schoenbeck (Doc. 68). For the reasons set forth below it is RECOMMENDED the Court GRANT IN PART AND DENY IN PART the Motion for Summary Judgment. Specifically, that the Court GRANT summary judgment in favor of Defendant Mueller on Count 1 only, GRANT summary judgment in favor of Defendant Atchison on Count 2 only, DENY the remaining claims for summary judgment, and adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff Fernando Gomez filed this action alleging violation of his 8th and 14th Amendment rights (Doc. 1). Gomez's claims relate to his placement in Administrative Detention for over two years between January 11, 2013 and January 22, 2015. Specifically, the following claims are pending:
Count 1 : Fourteenth Amendment due process claim against Defendants Atchison, Harrington, Mueller, Schoenbeck and Reihert for placing and holding Plaintiff in administrative detention without notifying him of the reasons for this placement, providing him with a hearing to challenge the detention, or providing meaningful periodic review of his status;
Count 2: Eighth Amendment claim against Defendants Atchison, Harrington, Mueller and Schoenbeck for housing Plaintiff in a cell that lacked heat for approximately five months during the winter and lacked hot water for nine months.
Count 1 was originally dismissed on threshold review, but upon motion for reconsideration the claim was revived (Doc. 27).
Gomez was interviewed by Defendant Kevin Reichert, an Internal Affairs Supervisor at Menard Correctional Center, the day before he was placed in Administrative Detention, (Doc. 69-1, 25:4). The interview related to a staff assault that took place five months earlier (Doc. 69-1, 25:12-17). Although Gomez admitted he was a member of the security threat group, the Latin Kings, he denied any involvement in the assault and any leadership role in the group (Doc. 69-1, 26:6-23). Whether an inmate is a gang leader is significant because the facility separates leaders from other gang members for purposes of safety (Doc. 69-5, 18:21-25, 19:1-5). The next day Gomez was transferred to Administrative Detention (Doc. 69-1, 10:18-25, 11:1-3, 21:9-12).
Gomez received no explanation for his move to Administrative Detention for fifteen months (Doc. 69-1, 21:9-22). None of the review during this time indicated Gomez was engaging in gang activity after his placement in Administrative Detention and contained only boilerplate statements noting movement between phases of AD. (Docs. 73-6, 73-7, 73-8, 73-9). Gomez's first opportunity to appear before or present evidence to the Administrative Review Committee was on July 2, 2014 — 18 months after he was placed in Administrative Detention (Doc. 69-1, 37:19-25). The findings of the July 2, 2014 review, and all subsequent reviews, contained the same boilerplate justification for Gomez's continued placement in Administrative Detention (Docs. 73-4, 73-5, 73-6).
During the first 90 days Gomez was in Administrative Detention, his cell lacked heat (Doc. 1, pp. 5-6). At the same time, Gomez testified he was denied access to his personal property, including the warmer clothing contained in his property box (Doc. 69-1, 85:2-10). The following winter, his cell lacked both heat and hot water (Doc. 69-1, 110:5-8). Gomez testified it was cold in the cell, he was only allowed to keep his jacket in his cell periodically, and although he regularly requested additional blankets he testified "more than likely they're not going to give it to you." (Doc. 69-1, 98:24-99-1, 106:11-107:2). Gomez spoke directly with Defendant Harrington regarding the lack of heat and hot water and submitted several "kites" (notes) to him about those issues as well (Doc. 69-1, 119:25-120:10, 121:9-19). Further, at least one grievance complaining about the lack of hot water appears to have been reviewed and signed off on by Harrington (Doc. 1-1, p. 13).
Gomez further alleges that while in Administrative Detention he was "chained up everywhere," was denied contact visits, access to educational service and the chaplain (Doc. 69-1, 7:16-18, 127:18-128:5). Gomez testified that the conditions were "way worse" in Administrative Detention than in general population (Doc. 69-1, 128:6-9).
CONCLUSIONS OF LAW
Summary judgment is proper only if the moving party can demonstrate there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any doubt as to the existence of a genuine issue of fact must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004).
A moving party is entitled to judgment as a matter of law where the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Carett, 477 U.S. 317, 323 (1986). A party asserting that a fact is genuinely disputed must support that assertion by citing to specific materials in the record or by showing that the materials in the record do not establish the absence of a genuine dispute. FED. R. CIV. P. 56. If the non-moving party does not show evidence exists that would reasonably allow a fact-finder to decide in their favor on a material issue, the court must enter summary judgment against them. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
The Seventh Circuit has stated summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).
I. 14TH AMENDMENT DUE PROCESS
Due process claims under the Fourteenth Amendment require a two-part analysis: first, was the plaintiff deprived of a protected interest; and if so, what process was due under the circumstances. Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017).
Protected Liberty Interest
Prisoners do not have a constitutional right to remain in the general population. Isby, 856 F.3d at 524. A protected liberty interest can exist, however, when a prison official restrains the freedom of an inmate in a manner that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). The Seventh Circuit has been clear that "both the duration and the conditions of confinement must be considered in the due process analysis." Marion v. Columbia Correction Inst., 559 F.3d 693, 698 (7th Cir. 2009). Thus, when an inmate is placed in conditions more restrictive than those in the general prison population, his liberty is affected only if the more restrictive conditions are particularly harsh compared to ordinary prison life or if he remains subject to those conditions for a significantly long time. Earl v. Racine County Jail, 718 F.3d 689, 691 (7th Cir. 2013) (emphasis added).
Here, Gomez spent 741 days in Administrative Detention, 537 of those days without any opportunity to contest his detention (Doc. 73-1, 37:19-22). The extended time spent in Administrative Detention alone implicates a protected liberty interest. Further, the only evidence before the Court suggests the conditions of Gomez's confinement during those 741 days was particularly harsh compared to ordinary prison life. To begin with, for the first ninety days Gomez states he was denied access to his personal property, including the warmer clothing contained in his property box (Doc. 69-1, 85:2-10). During that time, Gomez claims his cell lacked any heat (Doc. 1, pp. 5-6). The following winter, Gomez's cell lacked both heat and hot water (Doc. 1, pp. 5-6; Doc. 69-1, 110:5-8). Gomez testified the other conditions were "way worse" in Administrative Detention than in general population (Doc. 69-1, 128:6-9). Specifically, that he was "chained up everywhere," was denied contact visits, access to educational service and the chaplain (Doc. 69-1, 127:18-128:5).
Defendants do not contest Gomez's characterization of the conditions he suffered. Further, the former Warden of Menard admitted that placement in Administrative Detention was sometimes used for purpose of punishment (Doc. 73-2, 19:1-5). It is hard to see how placement in Administrative Detention could be punishment if the conditions did not differ significantly from those of the general population. Thus, there is sufficient evidence that the duration and conditions of Gomez's confinement in Administrative Detention created a protected liberty interest.
Process Due
The Supreme Court has instructed that an inmate confined to administrative detention is entitled to due process, but that such process can be informal and non-adversarial in nature. Hewitt v. Helms, 459 U.S. 460, 474 (1983) (abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472, 480 (1995): Isby, 856 F.3d at 524-25; accord Proctor v. LeClaire, 846 F.3d 597, 609 (2d Cir. 2017)); Westefer v. Neal, 682 F.3d 679, 684-86 (7th Cir. 2012). Thus, within a "reasonable time" of his placement in administrative detention, an inmate must be given "some notice of the reasons for [his] placement" and "an opportunity to present his views" to the prison official who decided to place him in administrative detention. Hewitt, 459 U.S. at 476; Westefer, 682 F.3d at 684.
Here, it is undisputed that Gomez was held in Administrative Detention with no process whatsoever for 537 days (Doc. 73-1, 37:19-22; Doc. 73-2, 48:1-10), until he received the June 2014 letter from Director Godinez (Doc. 69-1, 21:9-22). Further, the prison denied Gomez an opportunity to explain his side of the story until his first committee hearing on July 2, 2014 — 18 months after he was placed in Administrative Detention (Doc. 69-1, 37:19-25). Both time-periods quite plainly exceed all boundaries of reasonableness.
Further, there is evidence upon which a jury could find the process eventually provided Gomez was not meaningful. Prison officials are required to provide periodic review to determine whether an inmate "remains a security risk." Hewitt, 459 U.S. at 477 n.9; Westefer, 682 F.3d at 686. While the periodic reviews can be informal, they must still be "meaningful and non-pretextual." Westefer, 682 F.3d at 686; Isby, 856 F.3d at 527. A meaningful review "evaluates the prisoner's current circumstances and future prospects, and, considering the reason(s) for his confinement to the program, determines whether that placement remains warranted." Isby, 856 F.3d at 527.
Here, there is little to no evidence of what the periodic reviews entailed prior to July 2014 and it is unclear what standard, if any, was used to evaluate Gomez. The forms filled out for each of these early periodic reviews provide no justification for his continued placement in Administrative Detention and appear to have only included administrative decisions, such as "upgrade to Phase II." (Doc. 73-3, pp. 1-6). Further, Gomez testified he was not even aware that any of the reviews prior to July 2014 took place and therefore was given no opportunity to provide input. As such, there is a genuine issue as to whether the periodic reviews prior to July 2014 were anything more than empty formalities.
While not dispositive, the Court notes the Notice of Administrative Detention Review forms themselves state inmates are entitled to an Initial Administrative review placement review, followed by reviews every ninety days (Doc. 73-4, p. 1). Inmates are entitled to appear at the initial placement reviewed and every review 180 days thereafter (Doc. 73-4, p. 1). Thus, it is clear Gomez was denied the process he was entitled to under the IDOC's own guidelines.
Further, a question of fact exists as to whether the July 2014 and subsequent reviews were meaningful. Each such review gave the same boilerplate reasoning for Gomez's continued placement in Administrative Detention:
ID'd as a Latin King Leader at Menard CC during the timeframe a Lt. was assaulted by a latin [sic] King. Intelligence further indicated Gomez sanctioned the assault and attempted to initiate another.
(See Docs. 73-4, p. 3; 73-5, p. 3; 73-6, p. 3).
What, if any, basis exists for this conclusion is unclear from the record. Gomez insists he was not a leader of the gang and was not involved in the staff assault (Doc. 69-1, 26:6-23). He never received a ticket for gang activity and none of the periodic review forms indicate that any gang-related activity was observed after Gomez was placed in Administrative Detention (Docs. 73-6, 73-7, 73-8, 73-9). While it may be true that Gomez was a gang leader and responsible for the staff assault, such information is not borne out by the evidence that is currently before the Court. Furthermore, there was no explanation of why continued placement was necessary or any indication that Gomez was told how he could out of the Administrative Detention Unit.
Given the length of his administrative detention, the lack of evidence as to the reasons for it, and the repeated continuance of detention with only boilerplate language or no justification at all, there is a genuine issue of fact as to whether Gomez's periodic reviews were actual, meaningful reviews — ".i.e., one open to the possibility of a different outcome"— or a pretext to keep him in confined in segregation indefinitely. Isby, 856 F.3d at 528.
Defendant Mueller
The only Defendant not directly involved in the placement or retention of Gomez in Administrative Detention was Defendant Mueller. Direct participation is not required where there is a showing the defendant acquiesced in some demonstrable way in the alleged constitutional violation. Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003). Prison officials who simply process or review inmate grievances, however, generally lack personal involvement in the conduct forming the basis of the grievance. Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017) (citing Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)).
Here, there is insufficient evidence upon which a jury could find that Defendant Mueller acquiesced in some demonstrable way in the placement or retention of Gomez in administrative detention. In deposition Gomez could not remember if Mueller was involved in any of the Administrative Detention hearings (Doc. 69-1, 54:4-9). He testified he felt Mueller should have told him why he was placed in administrative detention, but there is no evidence that she had access to those records (Doc. 69-1, 55:6-19). His primary objection was her finding that his placement in detention was not subject to the prison's grievance procedure (Doc. 69-1, 56:21-25). There is no evidence presented that Mueller's finding was incorrect. Thus, although Mueller had knowledge of Gomez's situation there is no evidence she had any personal involvement in the conduct that was the basis for the grievance, his placement in Administrative Detention.
Thus, it is RECOMMENDED the Court GRANT summary judgment in favor of Defendant Mueller on Count 1 but DENY summary judgment on that Court as to the remaining Defendants.
II. 8TH AMENDMENT CONDITIONS OF CONFINEMENT
Conditions of confinement do not violate the Eighth Amendment unless they are in effect the "unnecessary and wanton infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 297 (1991). Inmates are entitled to "humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotations marks and citations omitted). However,
the Eighth Amendment does not provide a fixed formula for determining whether the effect of particular conditions constitutes cruel and unusual punishment, but rather draws its meaning from the evolving standards of decency that mark the progress of a maturing society. Conditions, alone or in combination, that do not, however, fall below the contemporary standards of decency, are not unconstitutional, and to the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.
Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986) (internal citations omitted).
Two elements are required to establish a violation of the Eighth Amendment due to conditions of confinement. First, the prisoner must show the conditions deny the inmate "the minimal civilized measure of life's necessities," creating an excessive risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the plaintiff must establish the defendant had a subjectively culpable state of mind; specifically, the defendant was aware the inmate faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847.
As to the first objective prong, prison officials have a duty to provide the "basic necessities of civilized life" which include sanitation and utilities. Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989). The Seventh Circuit has repeatedly found lack of heating is sufficient to meet the objective prong of the test. Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016); Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006); Jackson v. Duckworth, 955 F.2d 21, 22 (1989) (objective prong may be met by evidence of inadequate heating/light). The Seventh Circuit has specifically stated the lack of heat alone can violate the Eighth Amendment, particularly when alternative means to combat the cold that are inadequate, or the cold persists for months." Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997)); see also Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999) (finding that exposure to extreme cold for seventeen hours could constitute Eighth Amendment violation); Henderson v. DeRobertis, 940 F.2d 1055, 1058 (7th Cir. 1991) (finding that deprivation of blankets for four days in extreme cold could constitute Eighth Amendment violation).
Here, during the first 90 days Gomez was in Administrative Detention, his cell lacked heat (Doc. 1, pp. 5-6) and Defendants denied Gomez access to his personal property, including the warmer clothing contained in his property box (Doc. 69-1, 85:2-10). The following winter, his cell lacked both heat and hot water (Doc. 69-1, 110:5-8). Gomez testified it was cold in the cell, he was only allowed to keep his jacket in his cell periodically, and although he regularly requested additional blankets he testified "more than likely they're not going to give it to you." (Doc. 69-1, 98:24-99-1, 106:11-107:2). As such, Hoskins' testimony provides sufficient evidence for a jury to conclude the cell he was placed in did not provide the "basics necessities of a civilized life," and summary judgment is improper.
The second prong of an Eighth Amendment conditions of confinement claim requires an inmate to show Defendants were deliberately indifferent to the unconstitutional condition; that they "knew about it and could have prevented it but did not." Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009). Liability is based on each defendant's knowledge and action, not the actions of those they supervise. Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009).
Here, Defendants Harrington and Atchison argue there is no evidence they were aware of the problems with the heat and hot water. However, Gomez testified in deposition that he spoke directly with Harrington regarding the lack of heat and hot water and submitted several "kites" (notes) to him about those issues as well (Doc. 69-1, 119:25-120:10, 121:9-19). Further, at least one grievance complaining about the lack of hot water appears to have been reviewed and signed off on by Harrington (Doc. 1-1, p. 13). Thus, there is evidence upon which a jury could find Harrington was aware of both the heat and hot water issues.
No arguments were raised regarding the other Defendants for Count 2 and are therefore deemed waived for purposes of summary judgment. --------
Conversely, there does not appear to be any evidence in the record to support that Atchison was aware of the heat or hot water problems. Although Gomez testified he wrote to Atchison regarding the lack of heat, he admitted in deposition he had no idea whether Atchison received his correspondence (Doc. 69-1, 117:22-118:13). Further, Gomez was placed in Administrative Detention on January 11, 2013. His first grievance appears to have been filed on January 24, 2013 — 3 days before Atchison left Menard (Doc. 69-2, 20:22-21:4). That grievance was signed off on by Defendant Mueller, not Atchison (Doc. 1-1, p. 2). Thus, there is no evidence in the record that Atchison was aware of the issues regarding the heat or hot water in Gomez's cell.
It is therefore RECOMMENDED the Court GRANT summary judgment in favor of Defendant Atchison on Count 2 only and DENY summary judgment as to the remaining Defendants on that count.
III. QUALIFIED IMMUNITY
Defendants also argue they are entitled to qualified immunity (Doc. 104, p. 10). Qualified immunity protects government officials from liability for civil damages as long as their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009). To determine whether a defendant is entitled to qualified immunity, the Court must consider two questions. First, do the facts alleged by the plaintiff state a violation of a constitutional right? Pearson, 555 U.S. at 232; Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, was that right was clearly established at the time of the alleged misconduct? Saucier, 533 U.S. at 202. In determining whether a right is clearly established, the relevant question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation. Id.
The Court has already determined that Gomez put forth evidence sufficient to establish a genuine issue of fact as to whether his due process rights and his Eighth Amendment right to constitutional conditions of confinement were violated. The only remaining issue is whether those were clearly established. With respect to Count 1, "prison officials have been on notice since Hewitt that periodic reviews of administrative segregation are constitutionally required, and it is self-evident that they cannot be a sham." Isby, 856 F.3d at 530 (citing Hewitt v . Helms, 459 U.S. 460 (1983)). Consequently, Defendants are not entitled to qualified immunity on Count 1. As for Count 2, it is well established that prisoners have a right to adequate shelter, particularly protection from extreme cold. See, e.g., Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997); Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir. 1991). Consequently, Defendants are not entitled to qualified immunity on Count 2.
RECOMMENDATIONS
For the above state reasons, it is RECOMMENDED the Court GRANT summary judgment in favor of Defendant Mueller on Count 1 only, GRANT summary judgment in favor of Defendant Atchison on Count 2 only, DENY the remaining claims for summary judgment, and adopt the foregoing statement of facts and conclusions of law. Resulting in the following claims remaining before the Court:
Count 1: Fourteenth Amendment due process claim against Defendants Atchison, Harrington, Schoenbeck and Reihert for placing and holding Plaintiff in administrative detention without notifying him of the reasons for this placement, providing him with a hearing to challenge the detention, or providing meaningful periodic review of his status;
Count 2: Eighth Amendment claim against Defendants Harrington, Mueller and Schoenbeck for housing Plaintiff in a cell that lacked heat for approximately five months during the winter and lacked hot water for nine months.
NOTICE REGARDING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service. Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).
You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge. DATED: November 28, 2018
/s/
DONALD G. WILKERSON
United States Magistrate Judge