Opinion
Case No. 3:15-cv-01317-NJR-DGW
12-19-2018
OSBALDO JOSE-NICOLAS, Plaintiff, v. KIMBERLY BUTLER, Defendant.
REPORT AND RECOMMENDATIONS
WILKERSON, Magistrate Judge
Pending before the Court is a Motion for Summary Judgment filed by Defendant Butler (Doc. 57). For the following reasons it is RECOMMENDED the Court DENY the Motion for Summary Judgment and adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
This case was severed from Osbaldo v. Berry, et al., No. 15-cv-964-JPG, pursuant to a Memorandum and Order entered by the Court on November 30, 2015 (Doc. 1). Pending in this action are the following claims against Defendant Kimberly Butler: (1) Count V- a conditions of confinement claim; (2) Count IX - a supplemental state law claim for negligence or willful and wanton conduct; and (3) Count XI - a supplemental state law indemnification claim pursuant to the Illinois State Employee Indemnification Act, 5 ILCS §§ 350/1, et seq.
The original order severing this action also included claims against Defendant Richard Harrington which were subsequently dismissed without prejudice upon consent of the parties (Doc. 56).
On October 19, 2018, Defendant Butler filed the pending motion alleging she is entitled to summary judgment on Count V only (Doc. 57).
Undisputed Material Facts
Included in this section are the facts both parties agree are undisputed (see Docs. 59, 60) as well as the facts listed by Plaintiff as undisputed (Doc. 60) and not responded to by Defendant.
Plaintiff Osbaldo Jose-Nicolas filed this action alleging violations of his constitutional rights during the time he was detained in segregation at Menard Correctional Center—approximately April 24, 2014 through August 5, 2014 (Doc. 57-1, 10:4-9). When Jose-Nicolas arrived in segregation, his mattress was broken, dirty, smelled like urine and had what appeared to be feces stains (Doc. 57-1, 24:20-25:2). Jose-Nicolas asked the gallery officer for a new mattress but was told there were none available, so he attempted to clean the one in his cell (Doc. 57-1, 25:15-26:3). His mattress was never replaced and continued to smell (Doc. 57-1, 27:15-17). Jose-Nicolas's cellmate, Clifford Baker, testified that when he was placed in the cell almost three months later, the mattress still smelled of feces and urine (Doc. 59-9, 12:20-23).
In addition, the toilet in Jose-Nicolas' cell leaked the entire time he was in segregation, resulting in a constant puddle of standing water that was up to half a meter in diameter (Doc. 57, p. 3; Doc. 57-1, 38:20-40:12). Small white insects were in both the toilet and the puddle of water leaking from the toilet (Doc. 57-1, 41:23-42:2), and there was black-green mold on the walls (Doc. 57-1, 42:23-43:6). Menard work orders during the time period list over 150 plumbing repairs to the sinks, toilets and water in the cells of North II cellhouse (Doc. 59-11).
According to Defendant Butler's testimony, inmates in segregation were supposed to receive cleaning supplies once a week (59-1, 51:7-52:11). However, the office coordinator at Menard testified in deposition that he received six to ten grievances per month regarding inmates not receiving cleaning supplies (Doc. 59-6, 72:2-11). Jose-Nicolas testified that while he was given a mop or broom once a week, they were dirty (Doc. 57-1, 47:1-48:15). He asked for additional cleaning supplies but was told none were available (Doc. 59-15, 47:22-48:3). Jose-Nicolas' cellmate confirmed they were not given any cleaning supplies during the two months he was in the cell (Doc. 59-9, 22:21-23:1). The daily shift reports are consistent with that testimony, indicating that cleaning supplies were distributed only once in North II cellhouse the entire four months Jose-Nicolas was in detention (Doc. 57-9, pp. 1-244).
It is also undisputed that the segregation cells were extremely hot during the summer (Doc. 59-1, 35:2-4). Officers took the temperature in the gallery of the segregation unit during each shift but did not take the temperature in the segregations cells (Doc. 59-1, 36:12-37:1). Butler testified that it was "fairly normal" for her to receive a report that the gallery in segregation was 85 degrees at two o'clock in the morning (Doc. 59-1, 125:15-20). For at least half of the time Jose-Nicolas was in segregation, the galleries of North II cell house did not have any oscillating fans in the hallways for circulation (Doc. 59-1, 170:23-171:10). Further, Jose-Nicolas' cell was behind a steel door, and he estimated the temperature was over 90 degrees in the cell during the summer (Doc. 59-15, 48:16-19). His cellmate testified the cell "felt like an oven" and described the temperature as over 100 degrees (Doc. 59-1, 13:10). The plastic oscillating fan Jose-Nicolas brought with him to segregation melted, destroying the fan (Doc. 59-15, 49:15-19). Although he asked for another fan, one was never provided (Doc. 59-15, 49:24-50:2).
Jose-Nicolas filed two related emergency grievances, both of which were denied by Defendant Kimberly Butler (Docs. 57-3, 57-4). The May 11, 2014 grievance primarily related to the denial of a prior emergency grievance dated March 30, 2014, but also includes a request for relief from North II's "condemn [sic] conditions" (Doc. 59-17, p. 2). After the May 11 grievance was denied as an emergency, Jose-Nicolas resubmitted it as a non-emergency grievance (Doc. 59-20). The resubmitted grievance was also denied by Butler because Jose-Nicolas submitted it to the grievance officer rather than his counselor (Doc. 59-20). The response by the grievance officer does not indicate that he investigated any of Jose-Nicolas' concerns about the conditions of his cell (Doc. 59-20). The other emergency grievance, dated July 10, 2014 specifically states that Jose-Nicolas' fan melted due to the heat in his cell, that he was confined behind a steel door and that the water in his cell never stopped running (Doc. 59-19). This grievance was also denied by Butler (Doc. 59-20).
The Court notes that additional undisputed material facts and well as disputed material facts exists in this action. However, because the Court believes the above statement of the facts provide a sufficient basis for ruling on the pending motion, the Court declines to further summarize the additional facts that merely serve to bolster Plaintiff's argument against summary judgment.
LEGAL STANDARDS
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 particular 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)).
CONCLUSIONS OF LAW
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, that 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 that evidence of human waste and deprivation of cleaning supplies are sufficient to meet the objective prong of the test. Jackson v. Duckworth, 955 F.2d 21, 22 (1989) (objective prong may be met by evidence of inadequate plumbing, vermin, smell of human waste, inadequate heating/light, lack of clean water, and other issues); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (objective prong may be met with evidence of six days confinement in a cell with feces smeared on walls, water on floor, and the deprivation of cleaning supplies and mattress/bedding).
Further, exposing inmates to extreme temperatures coupled with the inability to mitigate the condition, can violate the Eighth Amendment. See White v. Monohan, 326 Fed.Appx. 385, 387 (7th Cir. 2009) (discussing allegations of heat in excess of 110°F temperatures with lack of ventilation that caused an inmate to vomit blood); Jordan v. Milwaukee County, 680 Fed.Appx. 479, 483 (7th Cir. 2007) (discussing freezing temperatures during two consecutive winters with limited clothing to combat the cold).
Finally, conditions that alone may not rise to the level of a constitutional violation, may in combination create "a mutually enforcing effect that produces the deprivation of a single, identifiable human need" sufficient to meet the objective prong of the test. Budd v. Motley, 711 F.3d 840, 842-43 (7th Cir. 2013) (combination of poor sanitation and hygiene, lack of heat and bedding, blocked ventilation, overcrowding, and inadequate recreation in combination sufficient to create a constitutional deprivation).
Here, at the very least, the combination of conditions creates a material issue of fact as to whether the conditions in Jose-Nicolas' cell were unconstitutional. When Jose-Nicolas arrived in segregation, his mattress was broken, dirty, smelled like urine and had what appeared to be feces stains (Doc. 57-1, 24:20-25:2). He requested a new mattress but never received one (Doc. 57-1, 25:15-26:3, 27:15-17). Three months later, when his new cellmate Clifford Baker was transferred to the cell, the mattress still smelled of urine and feces (Doc. 59-9, 12:20-23). At the same time, the toilet in the cell leaked creating a large puddle of standing water filled with insects (Doc. 57, p. 3; Doc. 57-1, 38:20-40:12, 41:23-42:2) and black-green mold on the walls (Doc. 57-1, 42:23-43:6).
Further, it is undisputed that the segregation unit was extremely hot during the summer—regularly registering as 85 degrees in the gallery area at two o'clock in the morning (Doc. 59-1, 125:15-20). There is evidence that Jose-Nicolas' cell, which was behind a steel door, was even hotter. He estimated the temperature was over 90 degrees (Doc. 59-15, 48:16-19); his cellmate, Clifford Baker, testified the cell "felt like an oven" and described the temperature as over 100 degrees (Doc. 59-1, 13:10). Whatever the specific temperature, it was hot enough in the cell to melt the plastic on Jose-Nicolas' oscillating fan (Doc. 59-15, 49:24-50:2). The Seventh Circuit has found that prisoners' testimony of extreme temperatures is sufficient to create a genuine dispute of fact. Jordan v. Milwaukee Cty., 680 Fed.Appx. 479, 483 (7th Cir. 2017).
Thus, a jury could reasonably find that the combination of standing water, bugs, a mattress smelling of urine and feces, lack of cleaning supplies, and excessive heat, created conditions that did not provide the "basics necessities of a civilized life."
It is also possible that a jury could also find the individual conditions of confinement complained of by Jose-Nicolas violated the Eighth Amendment on their own. However, because the combination of the conditions of confinement are sufficient to survive summary judgment, the Court finds it unnecessary to address the conditions individually.
The second prong of an Eighth Amendment conditions of confinement claim requires an inmate to show a defendant was deliberately indifferent to the unconstitutional condition; that she "knew about it and could have prevented it but did not." Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009).
Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.
Farmer v. Brennan, 511 U.S. 825, 842 (1994) (citations omitted).
A plaintiff does not have to prove that his complaints were "literally ignored, only that the defendants' responses to it were "so plainly inappropriate as to permit the inference that the defendants intentionally or recklessly disregarded his needs." Hayes v. Snyder, 546 F.3d 516, 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)). A defendant is not liable, however, where she recognizes the substantial risk and "responded reasonably," even if the harm was not averted. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (quoting Farmer, 511 U.S. at 843).
Here, the evidence is sufficient for a jury to infer Warden Butler knew of the unconstitutional conditions and failed to respond reasonably. Butler was made aware of Jose-Nicolas' complaints through his grievances. The May 2014 grievance, which Butler denied as an emergency, complained of "condemn [sic] conditions" (Doc. 59-17, p. 2). The July 10, 2014 grievance, which Butler also denied as an emergency, specifically referenced that Jose-Nicolas' fan had melted due to the heat in his cell, that he was confined behind a steel door and that the water in his cell never stopped running (Doc. 59-20).
Jose-Nicolas' grievances, however, were not the only information Warden Butler had about the conditions in segregation. The Seventh Circuit has held that where an administrator "must have known" about a risk of harm posed by conditions of confinement, a jury can find deliberate indifference. Gray v. Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016) (citing Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001)). It is undisputed that Butler received daily shift reports indicating that cleaning supplies were not being distributed during the time Jose-Nicolas was in segregation (Docs. 59-7, 59-8). A jury could reasonably infer that Butler was therefore aware inmates in North II did not have sufficient supplies to keep their cells clean. This is compounded by the fact that Menard work orders list over 150 plumbing repairs to the sinks, toilets and water in the cells of North II, during the four months Jose-Nicolas was housed there (Doc. 59-11). There is also evidence Butler received an email in January 2014 drafted by the executive secretary for her office stating there had been several grievances related to black mold in some of the cells in North II cellhouse (Doc. 59-13). Further, it is undisputed that Butler was aware of the extreme heat in the segregation cells (Doc. 59-1, 35:2-4). Butler admitted in deposition that she received regular temperature reports for the North II cell and that a temperature of 85 degrees Fahrenheit in the gallery was "a fairly normal temperature report" for two o'clock in the morning (Doc. 59-1, 170:23-171:10). Thus, it is clear Butler was aware of both Jose-Nicolas' complaints and the general conditions regarding lack of cleaning supplies, plumbing, mold and excessive heat.
Further, a jury could reasonably find that Butler's failure to respond to the information she received about the conditions of Jose-Nicolas' cell was plainly inappropriate. In Haywood v. Hathaway, the warden's only response to extreme cold in the prison cells was to check that the generators were operating properly and to direct maintenance to perform periodic temperature checks. 842 F.3d 1026, 1031 (7th Cir. 2016). The Seventh Circuit found that response to be "plainly inappropriate" given the inmate's grievance and the warden's knowledge of the extreme weather. Id.
Here, there is evidence upon which a jury could find Butler's response was similarly inappropriate. As discussed above, there is substantial evidence that Butler was aware of the extreme heat in the segregation unit, the plumbing issues, concerns about mold and lack of cleaning supplies. Despite that knowledge, she denied Jose-Nicolas' two emergency grievances. Butler then denied the May 11th grievance Jose-Nicolas had resubmitted as a non-emergency on purely procedural grounds—the grievance was submitted to the grievance officer rather than Jose-Nicolas' counselor (Doc. 59-20). Nothing in the grievance officer's report indicated he investigated the complaints regarding the conditions of the cell. Butler concurred with denying the grievance on technical grounds without an investigation into the facts (Doc. 59-20).
Thus, a jury could reasonably find that despite being aware of excessive heat, lack of cleaning supplies, water leakage and black mold, Butler unreasonably chose not to investigate Jose-Nicolas' claims about the condition of his cell. Jordan v. Milwaukee County, 680 Fed.Appx 479, 482 (7th Cir. 2017). As such, summary judgment is improper.
Defendant also argues that Jose-Nicolas has a duty to provide "verifiable medical evidence" showing he suffered harm as a result of the substandard conditions (Doc. 57, p. 8). The Court disagrees. The case cited by Defendant, Vasquez v. Frank, 290 Fed.Appx. 927 (7th Cir. 2008), was decided on the grounds that Vasquez did not show the conditions of his cell constituted an extreme deprivation or that officials were deliberately indifferent. Id. at 929. While the district court mentioned a lack of evidence connecting the deprivation to the injury, the Seventh Circuit did not rely on that finding. Id. at 928. Further, nowhere in the opinion does the Court mention any requirement that an injury be supported by "verifiable medical evidence." Thus, the Court finds Defendant's claim that a plaintiff is required to provide verifiable medical evidence of injury to be unsupported by the provided law. --------
II. 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 so 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). As discussed above, Jose-Nicolas has alleged facts that state a violation of his Eighth Amendment rights based on the conditions of his confinement.
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 Seventh Circuit has repeatedly found that evidence of human waste and deprivation of cleaning supplies are sufficient to meet the objective prong of the test. Jackson v. Duckworth, 955 F.2d 21, 22 (1989); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007). Further, at the time Jose-Nicolas was in segregation, the law was clear that exposing inmates to extreme temperatures coupled with the inability to mitigate the condition, can violate the Eighth Amendment. See White v. Monohan, 326 Fed.Appx. 385, 387 (7th Cir. 2009); Jordan v. Milwaukee County, 680 Fed.Appx. 479, 482-83 (7th Cir. 2007). Finally, prior to the events in this case, the Seventh Circuit had made clear that conditions that alone may not rise to the level of a constitutional violation, may in combination create "a mutually enforcing effect that produces the deprivation of a single, identifiable human need" sufficient to meet the objective prong of the test. Budd v. Motley, 711 F.3d 840, 842-3 (7th Cir. 2013).
Thus, it was clearly established by the time Jose-Nicolas was placed in segregation that the conditions of confinement he was allegedly subjected to, violated the Constitution. Defendants are therefore not entitled to qualified immunity.
RECOMMENDATIONS
For the above stated reasons, it is RECOMMENDED the Motion for Summary Judgment (Doc. 57) be is DENIED and the Court adopt the foregoing findings of fact and conclusions of law.
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: December 19, 2018
/s/
DONALD G. WILKERSON
United States Magistrate Judge