Paxton v. State of Idaho et al

Filing 43

MEMORANDUM DECISION AND ORDER granting in part and denying in part 28 Plaintiffs Reply to Defendant Response; Plaintiffs Second DiscoveryRequest; Motion for Summary Judgement; granting 29 Defendant's Motion for Extension of Time to File Rep ly to Plaintiffs Second Discovery Request and Motion for Summary Judgment; denying as moot 33 Plaintiff's Motion for Extension of Time to Complete Discovery; granting in part and denying in part 37 Defendant's Motion for Summary Judgmen t. The Reply (Dkt. 31 ) is considered timely filed. The parties shall notify the Court within 30 days whether they wish to proceed with settlement negotiations or litigation (both regarding injunctive relief only). The second amended complaint shall be due within 30 days of the earliest of termination of unsuccessful settlement negotiations or notice that the parties wish to proceed with litigation. If the case is settled, neither a second amended complaint nor an answer will be required. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WILLIAM ELDRIDGE PAXTON,
Case No. 1:12-cv-00136-REB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
IDAHO DEPARTMENT OF
CORRECTION, CORPORAL
SHILLING,1 WARDEN BLADES, and
CORIZON MEDICAL,
Defendants.

Plaintiff is proceeding in this prisoner civil rights case against only Corporal
Schillings. Pending before the Court are Plaintiff’s Second Discovery Request (Dkt. 28),
Defendant’s Motion for Extension of Time to File Reply (Dkt. 29), Plaintiff’s Motion for
Extension of Time on Discovery (Dkt. 33), and Defendant’s Motion for Summary
Judgment (Dkt. 37). Both parties that have appeared have consented to the jurisdiction of
a United States Magistrate Judge to enter final orders in this case. (Dkt. 23.) See 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73.

1

The correct spelling of Corporal Shilling’s name is Schillings.

MEMORANDUM DECISION AND ORDER - 1

After reviewing the parties’ arguments and exhibits, and the record in this matter,
the Court concludes that oral argument is unnecessary. Accordingly, the Court enters the
following Order granting in part and denying in part the Motion for Summary Judgment
and addressing the parties’ other motions.
BACKGROUND
Plaintiff’s pleadings in this matter have been difficult to decipher. (Dkt. 3, 9.)
Plaintiff is an 80-year-old inmate who suffers from diabetes, chronic back pain, peptic
ulcer disease, and Reynaud’s Phenomenon.2 He is housed in the Medical Annex at the
Idaho State Correctional Institution (ISCI). (Dkt. 3, p. 2.) Plaintiff was permitted to
proceed on a limited conditions of confinement claim asserted in his Amended Complaint
(Dkt. 9), based on the following allegations: (1) that the temperatures within the Medical
Annex on winter days when the windows and doors were open are essentially the same as
the outside temperatures, which on at least one occasion was no more than 39 degrees; (2)
that Plaintiff was not given adequate winter clothing to counter the chill caused by open
windows and doors, despite his requests; and (3) that exposure to cold temperatures
during the winter of 2012 resulted in a blood clot and loss of vision in Plaintiff’s left eye.
(Dkt. 11, p. 3.)
Although Plaintiff named Warden Randy Blades and Corporal Schillings in the
Amended Complaint, the Court permitted Plaintiff to proceed against only Corporal
2

Reynaud’s Phenomenon is the constriction of blood vessels and lack of blood to the hands and
feet, causing coldness and sometimes more severe problems related to lack of blood flow. (Cardona Aff.
& Exhibits, Dkt. 37-3.)
MEMORANDUM DECISION AND ORDER - 2

Schillings on the claim for violations that occurred in the winter of 2012. In addition, the
Court did not permit Plaintiff to proceed on claims that the windows in the handicap
shower area were left open in the winter, letting cold air blow onto inmates who were
showering, or on a variety of other conditions of confinement claims too vague to state
viable claims. After Plaintiff was given an opportunity to amend, the Court dismissed all
of the claims against all Defendants without prejudice except those stated above against
Corporal Schillings, upon which Plaintiff was permitted to proceed.
In his Amended Complaint, Plaintiff seeks nominal, compensatory, and punitive
damages, as well as any other appropriate relief.
On January 4, 2013, Defendant filed a Motion to Dismiss for Failure to Exhaust
Administrative Remedies. (Dkt. 19.) The motion was denied. (Dkt. 24.) The discovery
deadline was set for October 31, 2013, with the summary judgment motion deadline set
for December 31, 2013. Rather than file an answer, Defendant Schillings filed a Motion
for Summary Judgment on December 17, that is now fully briefed. (Dkt. 37.) See Fed. R.
Civ. P. 56(b) (motion for summary judgment may be filed at any time within limits set by
Court).
MOTION FOR SUMMARY JUDGMENT
1.

Standard of Law
Summary judgment is appropriate where a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
MEMORANDUM DECISION AND ORDER - 3

summary judgment rule “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. Material facts are those “that might affect the
outcome of the suit.” Id. at 248. Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment. Id.
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a party
may cite to particular parts of materials in the record, or show that the adverse party is
unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) &
(B). The Court must consider “the cited materials,” but it may also consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
MEMORANDUM DECISION AND ORDER - 4

insufficient. Rather, “there must be evidence on which the jury could reasonably find for
the [non-moving party].” Liberty Lobby, 477 U.S. at 252.
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or in opposition to a motion “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). If a party “fails to
properly support an assertion of fact or fails to properly address another party’s assertion
of fact,” the Court may consider that fact to be undisputed. Fed. R. Civ. P. 56(e)(2). The
Court may grant summary judgment for the moving party “if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled to
it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence of
the non-moving party. Although all reasonable inferences which can be drawn from the
evidence must be drawn in a light most favorable to the non-moving party, the Court is
not required to adopt unreasonable inferences from circumstantial evidence, McLaughlin
v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

To state a claim under § 1983, a plaintiff must allege a violation of rights protected
by the Constitution or created by federal statute proximately caused by conduct of a
person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991).
MEMORANDUM DECISION AND ORDER - 5

Where conditions of confinement are challenged under the Eighth Amendment’s
Cruel and Unusual Punishment Clause, a plaintiff must make two showings. First, the
plaintiff must make an “objective” showing that the deprivation was “sufficiently serious”
to form the basis for an Eighth Amendment violation. Johnson v. Lewis, 217 F.3d 726,
731 (9th Cir. 2000).
Second, the plaintiff must make a “subjective” showing that the prison official
acted “with a sufficiently culpable state of mind.” Id. To violate the Eighth Amendment a
prison official must act in a manner that amounts to “deliberate indifference,” which is
“more than ordinary lack of due care for the prisoner’s interests or safety,” but
“something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Farmer, 511 U.S. at 835.
Stated another way, deliberate indifference exists when an “official knows of and
[recklessly] disregards an excessive risk to inmate health or safety,” which means that he
or she “must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 838.
To rebut the subjective inquiry, prison officials may present evidence that they
reasonably responded to the risk. Farmer, 511 U.S. at 844–45. Mere negligence is not
sufficient to establish deliberate indifference; rather, the official’s conduct must have
been wanton. Id. at 835.
A prisoner must be confined under conditions that do not violate the Eighth
Amendment. See Farmer, 511 U.S. at 832; Johnson, 217 F.3d at 731. The Eighth
MEMORANDUM DECISION AND ORDER - 6

Amendment “embodies broad and idealistic concepts of dignity, civilized standards,
humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). While conditions of
confinement may be harsh and uncomfortable without being a violation of the Eighth
Amendment, they cross the line of acceptability when they (1) involve “the wanton and
unnecessary infliction of pain,” (2) are “grossly disproportionate to the severity of the
crime warranting imprisonment,” (3) result “in unquestioned and serious deprivation of
basic human needs, or (4) deny an inmate “the minimal civilized measure of life’s
necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “The circumstances, nature,
and duration of a deprivation of these necessities must be considered in determining
whether a constitutional violation has occurred.” Johnson, 217 F.3d at 731.
The “minimal civilized measure of life’s necessities” includes adequate shelter.
Rhodes, 452 U.S. at 347. Under the Eighth Amendment, inmates have a right to
protection from extremely cold indoor temperatures. Antonelli v. Sheahan, 81 F.3d 1422,
1433 (7th Cir.1996). Cold temperatures in a prison cell need not imminently threaten an
inmate’s health to violate the Eighth Amendment. Dixon v. Godinez, 114 F.3d 640, 644
(7th Cir. 1997) (“Viewing the record in Dixon's favor, it appears that a material dispute
remains as to whether the prison’s standard-issue clothing and bedding provided Dixon
with the constitutionally necessary minimum protection against severe cold, particularly
for daytime activities. That precludes summary judgment on this issue.”).
In addition, continued exposure to short periods of unreasonably cold temperatures
can violate the Eighth Amendment. In Del Rarine v. Williford, 32 F.3d 1024, 1050-51
MEMORANDUM DECISION AND ORDER - 7

(7th Cir. 1994), the court held that a prisoner could proceed on his claim that he was
routinely placed in a cell with unreasonably low temperatures and without adequate
clothing while he waited to be strip-searched. That inmate alleged:
Every few days I'm striped (sic) searched in my cell (notwithstanding
the bitter cold resulting from the open window above my cell), cuffed
behind my back, pulled backwards from my cell, put in an empty cell while
cuffed, from fifteen to thirty minutes, ... This practice continues to the
present time. On December 23, 1983 while the chill factor was minus 40
degrees to 50 degrees below zero, according to the radio weather reports, I
was strip searched and placed in an empty cell ... No hats, jackets, or gloves
were allowed, nor could we put a blanket over our cell bars to warm the
cell. Many other days were also bitterly cold. Repeated requests to Unit
Manager Deer, Associate Warden Keohane, and Warden Miller to close the
windows and fix broken ones were futile.
Id. at 1050.
2.

Undisputed Material Facts
This section includes facts that are undisputed and material to the resolution of the

issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record.
Defendant Corporal Schillings worked the swing-shift in the Medical Annex,
where the most vulnerable inmates are housed, including those with serious illnesses and
those of advanced age. Plaintiff describes the building as follows:
The Medical Annex Unit is a cigar shaped building, open bay room
220 feet long and 72 feet wide with 26 foot by 4 foot windows on the North
end and 2 sets of double doors on the south end with 3 each 6 foot by 4 foot
windows. When the rear windows and front doors are opened it is like a
wind [tunnel] with the heat pump in a separate room.
MEMORANDUM DECISION AND ORDER - 8

(Dkt. 7, p. 1.)
In February and March of 2012, Schillings regularly opened both doors and
windows or allowed inmates to open them to air out the unit. Plaintiff alleges that this
practice is ongoing, including the opening of windows in the handicap shower units while
elderly inmates shower.
Plaintiff states that he and other inmates complained to Corporal Schillings and to
correctional officers under him that it was cold and some of them did not have winter
clothing and sufficient body fat to keep them warm. (Dkt. 18, p. 2.) Plaintiff states that
Inmate Jones complained to Schillings about the cold air from the window on December
2, 2012, and Schillings did not close the window. (Id., p. 3.)
Plaintiff alleges that “[i]nmates grow old[,] have poor circulation and cannot stand
these cold temperatures.” (Id., p. 4.) He further alleges that he suffers from diabetes,
chronic back pain, peptic ulcer disease, and Reynaud’s Phenomenon. Plaintiff believes
that the regular exposure to extreme cold in the Medical Annex is a constitutional
violation and exacerbated his medical conditions, resulting in partial loss of sight.
Defendant has submitted the expert medical opinion of Joseph Cardona, R.N., who
declares under oath that there is no medical evidence or medical research to support the
contention that Reynaud’s is connected to any problems other than hand and foot
problems, and that there is particularly no evidence to suggest a connection of Reynaud’s
to loss of vision. (Cardona Aff. & Exhibits, Dkt. 37-3.) Nurse Cardona provides records
from Plaintiff’s visit to a retinal specialist, who drew no causal connection between the
MEMORANDUM DECISION AND ORDER - 9

loss of vision and Plaintiff’s exposure to cold temperatures. (Id.)
Plaintiff grieved the issue of the handicap shower windows being opened during
showering on June 16, 2009. On June 20, and 22, 2011, Plaintiff notified prison officials
that the windows were once again being opened. On July 12, 2011, a prison official
responded that the air conditioning system needed to be repaired, that it was subsequently
repaired, and that “the windows are now closed all the time.” ( Dkt. 21-2, p. 16.) Despite
this response, the shower windows are regularly opened during showering.
When Plaintiff submitted a grievance complaining of cold air on January 4, 2012,
Sergeant Ultis checked temperatures on January 10, 2012, at which time the temperature
showed between 70 and 73 degrees. Plaintiff was offered an opportunity to move to a
bunk that was not as close to the front doors, which Plaintiff declined. (Ultis Aff., Dkt.
37-1, p. 2.) Plaintiff alleges that the single temperature reading measured by Sergeant
Ultis was not taken when the doors and windows were open. (Dkt. 39, p. 9.) Sergeant
Ultis states in the grievance response that he informed staff that, if they continued to air
out the unit, they had to make sure the temperatures did not drop in the process. (Id.)
Plaintiff’s Complaint details the following dates he was subjected to cold drafts of
outdoor air from open windows and doors in the Medical Annex:
January 15, 2012

Doors blocked open.

January 24, 2012

Doors blocked open.

February 1, 2012

Doors blocked open.

February 2, 2012

Windows and doors blocked open.

MEMORANDUM DECISION AND ORDER - 10

February 3, 2012

Doors blocked open.

February 4, 2012

Doors blocked open.

(Complaint, Dkt. 3; see also Dkt. 3-1 (providing a different list of dates.))
This log, with similar entries, continues through March 9, 2012, when Plaintiff
alleges that he spoke to an unnamed deputy warden about the conditions. (Dkt. 3, p. 3.)
Also, on February 24, 2012, Grievance Coordinator Jill Whittington rejected a second
grievance from Plaintiff on the temperature issues because he had already grieved the
issue in January 2012. (Dkt 3, p. 4.)
Both parties have submitted evidence outside of the time period of February and
March 2012 (the time period specified in the Complaint regarding the allegations against
Corporal Schillings). Prison officials electronically monitored the temperature in the
Medical Annex from October 29, 2013, through December 2, 2013. (Christensen Aff.,
Dkt. 37-2, p. 2.) The ambient air temperature during that period of tine ranged between 71
and 75 degrees. (Id.) No other written inmate complaints about continuously cold
temperatures in the Medical Annex have been received by Deputy Warden of Security
Jay Christensen. (Christensen Aff., Dkt. 37-2, p. 2.)
As in the winter of 2012, Plaintiff again kept logs of daily exposure to cold in the
medical unit during 2013, of which the following is a sample:
November 1, 2013

Windows open in dayroom. (35 to 56 degrees outside)

November 2, 2013

Front doors blocked open at noon. (42 to 59 degrees
outside)

MEMORANDUM DECISION AND ORDER - 11

November 9, 2013
November 18, 2013

Windows open by showers. (34 to 52 degrees outside)

November 20, 2013

Plaintiff filed a grievance about the windows being
open during use of the handicap showers on November
18, 2013 at noon, when it was 44 degrees outside. On
the same day, the doors were blocked open by the
sergeant on duty. (38 to 42 degrees outside) (Dkt. 39,
p. 15.)

November 22, 2013

Window was jammed opened, and Correctional Officer
Lund tried to tape it closed. (22 to 36 degrees outside)

November 28, 2013

Plaintiff filed an offender concern form (kite) with
Warden Blades, complaining that the windows near the
handicap showers were open at 9:30 a.m. during
showering time, when the temperature outside was less
than 40 degrees. Blades said that the kite would be
forwarded to the unit sergeant. (Dkt. 39, p. 14.)

December 10, 2013

Doors open from 8 to 10 p.m. (5 to 19 degrees outside)

December 15, 16, 2013

3.

Window open. (36-54 degrees outside)

Officers requested that maintenance raise the
temperatures in the unit; officers had to wear their
coats to work in the unit.

Discussion of Claims Against Corporal Schillings arising from February and
March 2012
To prevail in the face of a summary judgment motion and proceed to trial, Plaintiff

must show that he has sufficient facts upon which a factfinder could find that he can meet
the elements of his claim, including both the objective and the subjective prongs of the
deliberate indifference standard of law.

MEMORANDUM DECISION AND ORDER - 12

A.

Objective Prong

Defendant argues that a brief exposure to cold air, even if uncomfortable, does not
meet the objective component of an Eighth Amendment claim. Plaintiff counters by
offering a section from Adult Correctional Institutions, Fourth Edition, on recommended
prison living conditions that provides: “Temperature and humidity should be capable of
being mechanically raised or lowered to an acceptable comfort level.” (Dkt. 39, p. 18.) In
reply, Defendant has produced evidence that “the HVAC unit in the medical annex is
capable of creating a continuous temperature read out that can be retrieved by a
technician. During that time the ambient air temperature inside the medical annex ranged
between 71 and 75 degrees.” (Christensen Aff., p. 2.)3
However, Defendant offers no information about whether the cold breezes blow
near the HVAC unit. The cold breezes may blow on Plaintiff, but not on or near the
thermostat, and the windows and doors may be closed before the ambient temperature
near the thermostat descends below 71 degrees.
Plaintiff was offered a different bed, away from the front doors, to minimize his
exposure to extremely cold air coming into the unit. Plaintiff declined the offer to move to
a back bunk. Plaintiff, however, says that the same conditions exist in the front and back
of the building, because both the doors and the windows are opened regularly. There is no
evidence in the record that prison officials offered Plaintiff gloves, a hat, or other warm

3

Plaintiff disputes these electronic readings as fraudulent, but he offers no evidence to support
his contention. Therefore, this allegation does not create a “genuine dispute of material fact.”
MEMORANDUM DECISION AND ORDER - 13

clothing, during time periods when the doors and windows are opened in the winter.
An allegation of inadequate living temperature may amount to a constitutional
violation, but key to that determination are the factors of the severity of the temperature,
its duration, and whether the inmate has adequate alternatives to protect himself from the
cold. See Dixon v. Godinez, 114 F.3d at 644; Wilson v. Seiter, 501 U.S. 294, 304 (1991)
(noting that “a low cell temperature at night combined with a failure to issue blankets”
may establish an Eighth Amendment violation). Here, an 80-year-old frail man with
significant health problems alleges that he is subjected to freezing cold winter breezes
blowing on him for several hours nearly every day, and that he has not been offered
winter clothing or a place of refuge from the cold during that time period. While it is
possible that the heater continues to warm the entire area to remain in the 70s, it is
impossible to instantaneously warm freezing cold air coming into a building. In other
words, few people would find it acceptable to sit in a warm room with a cold wind
blowing on them for several hours a day.
In considering whether Plaintiff’s deprivation was “sufficiently serious,” the
Court particularly has considered whether consistent exposure to drafts of cold outside air
during periods of time when the weather is at or near the freezing level accords with
society’s standards of decency regarding treatment of geriatric patients in a medical
housing unit, who may be more sensitive to cold weather conditions because of advanced
age. See Brown, Lyle B., The Joint Effort to Supervise and Treat Elderly Offenders: A
New Solution to a Current Corrections Problem, 59 Ohio St. L. J. 259, 270 (1998)
MEMORANDUM DECISION AND ORDER - 14

(“Prisons were, and still are, designed primarily for a younger population. As a result,
uncomfortable temperatures . . . provide an inhospitable environment for many aged.”).
The Court concludes that Plaintiff’s allegations raise a genuine dispute regarding whether
such conditions violate the Eighth Amendment.
As to Plaintiff’s claims of physical injury, he has provided no evidence showing
that his loss of sight was causally connected to his exposure to cold drafts from open
doors and windows. The retinal specialist did not draw a connection in the medical
records provided, and Plaintiff does not have the medical training to draw such a
connection. As a result, Plaintiff has not met the objective prong of this test on this aspect
of his claim, but only on whether he endures wanton and unnecessary suffering while
being housed near open windows when the temperatures are near freezing outside.
B.

Subjective Prong

Currently, the only Defendant against whom Plaintiff is authorized to proceed is
Corporal Schillings. Plaintiff’s Statement, attached to his Amended Complaint, explains
his cause of action against Corporal Schillings: “I have Reynaud’s disease and peptic
ulcer disease and in the Spring of 2012 Officer Shillings [sic] Inmate Gillespie #80145
opened the windows and doors to the Medical Annex claiming it needed to be aiired [sic]
out during freezing wether [sic] for hours at a time without turning up the heat to
compensate for the cold even though many inmates complained about the cold.” (Dkt. 93, p. 1.)

MEMORANDUM DECISION AND ORDER - 15

Plaintiff states that he and other inmates complained to Schillings and officers
under him that it was cold and some of them did not have winter clothing to keep them
warm or were thin. (Dkt. 18, p. 2.) He states that Inmate Jones complained to Schillings
about the cold air from the window on December 2, 2012, and Schillings did not close the
window. (Id., p. 3.) Plaintiff alleges that “[i]nmates grow old[,] have poor circulation and
cannot stand these cold temperatures.” (Id., p. 4.)
The Court finds that Plaintiff has stated sufficient facts to demonstrate a genuine
dispute as to a material fact regarding whether Corporal Schillings regularly ignored
elderly inmates’ pleas to close the windows and doors because they did not have adequate
winter clothing to combat the cold breezes, despite the temperature near the thermostat in
the Medical Annex remaining in the 70s. Because a factfinder could find that these
allegations, if true, meet the subjective prong of the deliberate indifference test, the Court
concludes that Defendant Schillings is not entitled to summary judgment. There is a
genuine dispute as to whether Schillings was deliberately indifferent to a circumstance
that amounted to inhumane treatment that caused an elderly inmate wanton and
unnecessary suffering.
4.

Qualified Immunity Defense
Defendant Schillings alternatively argues that he is entitled to qualified immunity.

In § 1983 actions, the doctrine of qualified immunity protects state officials from personal
liability from paying an award of damages to a plaintiff for on-the-job conduct, so long as
the conduct is objectively reasonable and does not violate clearly-established federal
MEMORANDUM DECISION AND ORDER - 16

rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). A qualified
immunity analysis consists of two prongs: (1) whether the facts as alleged by plaintiff
establish a violation of a constitutional right, and (2) whether that right was clearly
established given the state of the law at the time of the alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009), citing Saucier v. Katz, 533 U.S. 194, 201 (2001).
Courts may “exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Id. at 818. The qualified immunity inquiry is “a pure question of
law.” Elder v. Holloway, 510 U.S. 510, 514 (1994).
As to the first prong, the court considers whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the [defendants’]
conduct violated a constitutional right.” Saucier, 533 U.S. at 201. As to the second prong,
whether the law was clearly established, such inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition.” Id. at 201. The Court
must consider the “objective legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was taken.” Pearson, 555 U.S. at
243 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). If the public official can
demonstrate he did not know, nor should he have known the relevant legal standard, then
qualified immunity applies. Harlow, 457 U.S. at 819.
Defendant Schillings argues that he is entitled to qualified immunity because the
law is not clearly established that a correctional officer who did nothing more than open
MEMORANDUM DECISION AND ORDER - 17

doors and windows in cold weather to air out a housing unit should be subjected to
personal liability. The Court agrees. Temperature readings in the Medical Annex
remained in the 70s, notwithstanding the freezing cold breezes that blew through the
building for several hours during the regular “airing out” of the building in the winter. In
addition, the conditions are unduly harsh only as to some geriatric inmates; other inmates
did not complain, but seem to have welcomed, the fresh air. The Court finds no case law
that would specifically place Schillings on notice of the alleged constitutional violation.
During this time period, prison officials consistently believed and gave orders that – so
long as the overall temperature remained constant – the windows and doors could be
opened. The Court found no cases from the United States Court of Appeals for the Ninth
Circuit particularly dealing with the effect of cold upon elderly inmates. Rather, how the
prisons can accommodate the needs of a growing number of geriatric inmates appears to
be a seldom-addressed topic.
Accordingly, because there was no clearly established law at the time of the
alleged incidents that would have put Officer Schillings on notice that he might have been
violating Plaintiff’s constitutional rights by opening the doors and windows to air out the
Medical Annex and letting in freezing cold air without providing Plaintiff with additional
winter clothing for indoors – despite a relatively warm temperature reading near the
building’s thermostat – Officer Schillings is entitled qualified immunity.

MEMORANDUM DECISION AND ORDER - 18

5.

Amendment Permitted
Plaintiff complains that the cold breezes in the building remain a problem. Because

Plaintiff earlier attempted to bring a claim against Warden Blades, but was not permitted
to do so, the Court finds it appropriate to allow Plaintiff to file a second amended
complaint to proceed against the warden of the facility for injunctive relief. In addition,
Plaintiff has provided additional information in his more recent submissions about the
shower windows being left open, letting in freezing cold air while elderly inmates shower
in the handicap showers.4 As a result, the Court will also permit Plaintiff to proceed on
this part of his claim against the warden. Plaintiff’s second amended complaint should
contain all of his allegations of drafty windows and doors, including shower windows,
related to current conditions in the Medical Annex.
6.

Conclusion and Referral to Settlement Conference
Accordingly, the Court will grant Defendant Schillings’ Motion for Summary

Judgment as to the claim of Plaintiff’s loss of vision and the damages claim for inflicting
wanton suffering against Corporal Schillings, but the Court will permit Plaintiff to file a
second amended complaint to proceed against Warden Blades on the ongoing wanton
suffering claim, including the shower window claim, as to injunctive relief only (an order

4

On November 28, 2013, Plaintiff filed an offender concern form with Warden Blades,
complaining that the windows near the handicap showers were open at 9:30 a.m. during showering time,
when the temperature outside was less than 40 degrees. (Dkt. 39, p. 14.) Plaintiff alleges that the 3-foot by
4-foot windows by the handicap showers were open all morning on December 23, 2013. (Dkt. 30, p. 21.)
He alleges; “It’s hard for me to shower even in the handicap showers because of the temperature kept by
Officers in here.” (Dkt. 18, p. 4.) “It is also hell to shower with the windows open and 20 to 30 mph wind
blowing on you[;] this is inhumane treatment.” (Dkt. 7, p. 2.)
MEMORANDUM DECISION AND ORDER - 19

to do or to stop doing something).5 Because the warden has not had an opportunity to
respond to Plaintiff’s claim that the conditions are ongoing and he should be afforded
injunctive relief, the Court will permit the parties to select one of following paths.
One alternative is for the parties to meet together before a second amended
complaint is filed and attempt to settle this case between themselves regarding (1) how to
address temperature variations affecting Plaintiff during times when the building is aired
out in the winter, for example, by providing him with additional winter clothing to wear
indoors, and/or providing him with a bed in the rear of the building and not opening the
back windows at all; (2) how to determine a schedule for airing out the handicap shower
area other than when elderly inmates are showering; and/or (3) any other set of terms
acceptable to both parties.6 At the end of 90 days, the parties may file a stipulation to
request a supervised settlement conference if they have not been able to work out a
solution between them and they wish to continue negotiations.
Another alternative is for Plaintiff to file a second amended complaint to state the
ongoing conditions, and for the warden to respond to the second amended complaint
regarding injunctive relief. The parties then may engage in any additional discovery, and
the case will be set for a bench trial on the claims for injunctive relief.

5

Damages against the warden would be barred by qualified immunity for the same reasons set
forth above regarding Defendant Schillings.
6

These are examples only of what the parties may wish to consider in negotiations, not court

orders.
MEMORANDUM DECISION AND ORDER - 20

REVIEW OF OTHER PENDING MOTIONS
Plaintiff has filed an extension of time because he has requested issuance of
subpoenas duces tecum for six inmates. (Dkt. 33.) However, subpoenas duces tecum are
for trial testimony; therefore, the motion and requests are premature. Plaintiff may file a
motion for issuance of subpoenas duces tecum should a trial in this matter be set.
Plaintiff filed a “Reply to Defendant Response; Plaintiff’s Second Discovery
Request; Motion for Summary Judgement” (Dkt. 28) and an “Extraordinary Motion for
Review of Misconduct” (Dkt. 42).The basis for Plaintiff’s motions is that he believes
prison officials have been untruthful about the facts in their responses to discovery
requests and that he believes prison officials falsified the electronic temperature readings.
However, if material facts are in dispute, as they are in this case, summary judgment is
inappropriate.
Plaintiff asserts that Defendant should be compelled to produce daily unit logs that
show when actions such as turning off window alarms, opening doors and windows, and
other actions are listed. Plaintiff alleges that Defendant has failed to provide a full copy of
Policy 303.02.001.003.
The Court concludes that, if logs are kept of such actions, they should be provided
to Plaintiff. If the provision of such logs to Plaintiff poses a security issue, the logs should
be provided to the Court in camera. If a full copy of Policy 303.02.001.003 has not been
provided to Plaintiff, and it is relevant to Plaintiff’s causes of action as stated in the
pleadings, the warden should provide the entirety of the Policy to the Plaintiff.
MEMORANDUM DECISION AND ORDER - 21

ORDER
IT IS ORDERED:
1.

Plaintiff’s “Reply to Defendant Response; Plaintiff’s Second Discovery
Request; Motion for Summary Judgement” (Dkt. 28) is DENIED in part as
to his summary judgment request, and GRANTED in part as to his request
for discovery, as noted in the limited fashion above, to be provided within
30 days after a second amended complaint is filed.

2.

Plaintiff’s Motion for Extension of Time for Discovery (Dkt. 33) is
DENIED as moot, to the extent it is a premature request for issuance of trial
subpoenas.

3.

Defendant’s Motion for Extension of Time to file Reply to Plaintiff’s
Second Discovery Request and Motion for Summary Judgment (Dkt. 29) is
GRANTED. The Reply (Dkt. 31) is considered timely filed.

3.

Defendant’s Motion for Summary Judgment (Dkt. 37) is GRANTED in part
as to the claim of Plaintiff’s loss of vision and all claims against Corporal
Schillings, and DENIED as to Plaintiff’s claim for injunctive relief against
Warden Blades for allegedly maintaining constitutionally inadequate living
conditions resulting from cold drafts from open doors and windows,
including in the handicap shower areas during times of showering.

4.

The parties shall notify the Court within 30 days whether they wish to
proceed with settlement negotiations or litigation (both regarding injunctive

MEMORANDUM DECISION AND ORDER - 22

relief only).
5.

The second amended complaint shall be due within 30 days of the earliest
of termination of unsuccessful settlement negotiations or notice that the
parties wish to proceed with litigation. If the case is settled, neither a second
amended complaint nor an answer will be required.
DATED: January 31, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 23