Jones v. Baldwin et al
Filing
69
OPINION entered by Chief Judge James E. Shadid on 10/26/2018. IT IS THEREFORE ORDERED: 1) Defendants' motion for summary judgment is denied. (d/e 61 .) 2) Plaintiff's motions for status are moot. (d/e's 67 , 68 .) 3) A status conference by telephone is scheduled for November 7, 2018, at 10:00 a.m. The clerk is directed to issue a writ to secure Plaintiff's presence. SEE FULL WRITTEN OPINION.(JS, ilcd)
E-FILED
Friday, 26 October, 2018 02:43:04 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KEDRON JONES JR.,
Plaintiff,
v.
JOHN R. BALDWIN, IDOC
DIRECTOR, et al.,
Defendants.
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16-CV-3143
OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff, proceeding pro se, alleges that he was repeatedly
exposed to the raw sewage of other inmates during his incarceration
in the Western Illinois Correctional Center from June 10, 2015 to
May 17, 2017. This allegedly occurred when an inmate in the
adjoining cell would flush the toilet, causing the contents to travel
to the toilet in Plaintiff’s cell.
Defendants’ first motion for summary judgment was denied
because the Court needed more information to determine whether a
disputed material fact exists for trial. (11/21/17 Order, d/e 56.)
Defendants have renewed their summary judgment motion, but the
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motion still does not demonstrate the absence of a disputed
material fact. Disputed facts remain about the extent of this
plumbing problem, Defendants’ knowledge of the extent of the
problem, and Defendants’ authority to fix the problem. Summary
judgment is denied.
Analysis
Plaintiff claims that the toilets at Western Correctional Center,
other than the toilets on housing unit four and the upper galleries,
flush into the toilet in the adjoining cell, causing an inmate’s feces
and urine to splash into the adjoining cell’s toilet. Sometimes the
traveling sewage spills onto the floor of the adjoining cell or
splashes onto an unsuspecting inmate sitting on the adjoining cell’s
toilet. Plaintiff describes the problem thus:
Q. So maybe you can, can you just describe for
me how, how, how the sewage comes up and out of
the toilet? Is it unexpected or it’s a slow flow up
out? Can you just describe it for me?
A. No it comes up with, it just shoots up. Like you
ever, if you take, if you take a straw and blow it in a cup
and the bubbles come up, same thing. You are sitting on
your toilet and all of a sudden (witness making audible
sounds). And it’s, your next door neighbor’s manure and
urine splashes all over your rear end or your penis. I’m
saying, you know, stuff hanging down in the toilet. I’m
not trying to be funny but, you know.
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*
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*
A. You are sitting there and your behind is sitting
in somebody else’s mess. And it just –
Q. Fair enough.
A. –doesn’t—
Q. Okay. So then once the sewage comes up
and out of the toilet how, how are you cleaning that
up?
A. With a rag.
Q. Do you have to scoop it, like scoop - A. Yeah.
Q. –it back into the toilet—
A. Yes ma’am.
(Pl.’s Dep. 19-20.) Plaintiff would use his own towels and
newspaper to try to clean the mess. Id. p. 21. If Plaintiff was
in his cell when this happened, he could prevent the waste
from reaching the floor by flushing the toilet. However, if
Plaintiff was not in his cell, an overflow of sewage could occur:
Q. Does it happen every time another inmate flushes?
A. Every time. If I’m in cell, like I’m in cell 20 right now,
the guy in cell 21, when he flushes his toilet, his manure
and urine fills my toilet. When I was in One House, I was
in 28 cell. When the guy in 27 cell used the washroom and
flushes his toilet, it fill mine up. If I don’t flush it
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immediately, if he flushes his toilet three or four more
times, which most guys do, the whole time they are
urinating they will flush the toilet so no more splash and
everything, your toilets fill to the rim. If you flush it one
more time, it’s flowing your cell. If you are not in your cell
to flush it, then you got a problem. When you walk in your
door, you have got to clean up some mess I’m saying. . . .”
(Pl.’s Dep. 14-15.) Plaintiff maintains that sufficient cleaning
supplies were not provided to clean up the sewage when it did
spill out onto the floor. (Pl.’s Dep. 15)(“They are not going to
give you anything to clean it up with. You have got to buy
shampoo or body wash, or whatever, from the commissary . . .
.”). Plaintiff has filed grievances from other inmates at Western
supporting Plaintiff’s claim that this is a systemic, ongoing
problem. (d/e 65-1, 65-2, 65-3, 65-5.)
Defendants admit that sometimes cross-flushing occurs
due to the poor design of the pipes, but they deny that urine or
feces “shoot up out of the toilets” or that the toilets fill with
urine or feces. According to the Chief Engineer at Western:
The housing units at Western were built with the cells
sharing a common pipe chase between two cells. Both
toilets adjacent from each other drain to the same pipe
causing sometimes what we refer to as a cross flush if
the main sewer is slow. Due to the age of the facility,
piping, and the high pressure toilets we use here this
does happen. After a work order has been issued and we
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are aware of this happening we do what we can to
prevent a further problem, clean the pipe, and inspect for
any blockages that may be causing the problem and
correct them. In most all cases, the toilet may have a
little sign of cross flush on its side, but a simple flush of
the toilet cures the problem. The toilets do not backup or
fill with urine/feces but they do show signs of cross flush
occasionally due to poor design. Urine or feces does not
shoot up out of the toilets due.1
(Robinson Aff. ¶ 10.) The Chief Engineer also avers that he
performed a blue dye test on Plaintiff’s toilet in May 2016 and
did not see any evidence of cross-flushing. Plaintiff disputes
this, contending that Plaintiff himself witnessed the blue dye
travel into Plaintiff’s toilet during the test. (Pl.’s Dep. pp. 2224.)
Defendants first argue that they lack personal
responsibility. However, Plaintiff’s evidence allows an
inference that Defendants knew about the problem and
consciously took no action to fix the problem. Plaintiff
maintains that he wrote to the IDOC director and copied all
Defendants on that letter. (Pl.’s Dep. 33-34, 37, 39.) Plaintiff
also contends that he also talked directly to Defendant Korte
1
This is where the sentence ends in the Engineer’s affidavit.
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multiple times. (Pl.’s Dep. 38.) Additionally, if Plaintiff is
believed, the Chief Engineer who performed the blue dye test
acknowledged the cross flush, stating that it was a design flaw
and needed a cross flush valve to fix the problem, but there
was no money. (Pl.’ Dep. p. 22.)
The grievances filed by other inmates also allow a
reasonable inference that Plaintiff’s description of the problem
is accurate and Defendants knew about it. Some of the
responses to those grievances, which appear to be signed off
on by Defendants Korte and Watson and possibly Baldwin,
admit to the problem and admit that the only fix is to replace
the plumbing. See, e.g., d/e 65-1, p. 11 (“maintenance came
to the cell and was explained why the toilet does that and that
nothing can be done about it.”); d/e 65-2, p. 17 (response to
2015 grievance)(“due to the age of the facility, parts are
wearing out and being replaced as they wear out. They are
aware of the problem.”); d/e 65-2, p. 11 (same); d/e 65-3
(“This is done [sic] to poor design and other inmates flushing
non-flushable items down the toilet. A work order will only
free debris not fix the problem. At this time, the State does
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not have the fund to fix this poor design.”); d/e 65-3, p. 17
(“[T]he problem is being addressed. It is due to the age of the
facility and parts are becoming hard to get to replace defective
ones.”); see also d/e 65-4, p. 4, email from grievance officer
Goins to Administrative Review Board Johnson (“We have had
issues with the toilets for years. I was always told that the
problem was the way the plumbing was installed when the
institution was built. Hope you can get a better answer!”); see
also Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th Cir.
1996)(supervisory officials “can be expected to know of or
participate in creating systemic, as opposed to localized,
situations.”). In any event, Defendants offer no affidavits of
their own, which is in part why Defendants’ first summary
judgment motion was denied.
Judge Bruce reached the same conclusion in Garrett v.
Korte (17-cv-3009 (C.D. Ill.) as to Defendant Korte. The
plaintiff in that case maintains that, during his seven years in
Western, the toilets would overflow with waste from the next
cell on a daily basis, and waste would run down the sides of
the toilet and onto the floor. (7/30/18 summary judgment
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order, 17-cv-3009.) Summary judgment has been denied in
that case, and a trial is set in April 2019, pro bono counsel
having been appointed.
Defendants also argue that the toilet problem is not objectively
serious enough to rise to a constitutional violation. But accepting
this argument requires ignoring Plaintiff’s description of the
problem, and Plaintiff’s version governs at the summary judgment
stage. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014)(record
must be construed in favor of nonmovant—Court must “avoid the
temptation to decide which party's version of the facts is more likely
true.”). Believing Plaintiff’s description, a reasonable juror could
find that the plumbing problem deprived Plaintiff of the “minimal
civilized measure of life’s necessities” according to “evolving
standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346
(1981); Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir.2006) (“A lack
of heat, clothing, or sanitation can violate the Eighth Amendment.”);
DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (“Exposure
to human waste…evokes both the health concerns emphasized in
Farmer, and the more general standards of dignity embodied in the
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Eighth Amendment.”)(cited by Vinning-El v. Long, 482 F.3d 923 (7th
Cir. 2007)(broken sink/toilet, water covering floor, walls smeared
with blood and feces). Defendants next contend that they were not
deliberately indifferent to the problem but again that argument
requires accepting the Chief Engineer’s description of gravity the
problem rather than Plaintiff’s. Drawing inferences in Plaintiff’s
favor, simply unplugging the pipe may help but does not fix or
prevent the problem. Gray v. Hardy, 826 F.3d 1000 (7th Cir.
2016)(“Knowingly persisting in an approach that does not make a
dent in the problem is evidence from which a jury could infer
deliberate indifference.”).
Similarly, Defendants’ qualified immunity argument fails
because the argument is based on drawing competing inferences in
Defendants’ favor, which the Court cannot do. Gutierrez v. Kermon,
722 F.3d 1003, 1010 (7th Cir. 2013)(defendant not entitled to
qualified immunity based on his version of disputed facts).
The Court does agree with Defendants that Plaintiff’s request
for injunctive relief appears moot since he is no longer incarcerated
in Western Illinois Correctional Center. “If a prisoner is transferred
to another prison, his request for injunctive relief against officials of
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the first prison is moot unless ‘he can demonstrate that he is likely
to be retransferred.’” Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.
1996)(quoted cite omitted).
IT IS THEREFORE ORDERED:
1)
Defendants’ motion for summary judgment is denied.
(d/e 61.)
2)
Plaintiff’s motions for status are moot. (d/e’s 67, 68.)
3)
A status conference by telephone is scheduled for
November 7, 2018, at 10:00 a.m. The clerk is directed to issue a
writ to secure Plaintiff’s presence.
ENTERED: 10/26/2018
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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