White v. Monohan et al

Filing 243

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 2/14/2013Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY WHITE,

)
)
Plaintiffs,
)
)
v.
)
)
1
THOMAS MONAHAN, and individual, )
and TIMOTHY BUDZ, an individual.
)
)
Defendants.
)

07 C 437
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Gregory White, who at all times relevant to the complaint was a civil detainee at
the Joliet Sexually Violent Persons Treatment and Detention Facility (“TDF”), has sued
former TDF officials Thomas Monahan and Timothy Budz pursuant to 42 U.S.C. § 1983
and alleges that the conditions under which he was kept at the TDF violated his due
process rights as guaranteed by the Fourteenth Amendment to the U.S. Constitution.
Defendants have moved for summary judgment. For the reasons provided herein, the
Court grants in part and denies in part the motion.
Facts
Unless otherwise noted, the following facts are undisputed. From March 2, 2001
to June 2006, White was a civilly detained resident in the Joliet TDF, except for two
periods (April 4, 2002 to February 27, 2003 and April 2005 to May 25, 2006) during
which time he was incarcerated in the Will County Jail as a result of convictions for
committing battery upon staff members at the TDF. (Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 9-12.)

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Although the complaint’s caption misspelled defendant’s name as “Monohan,” the parties’ summary
judgment briefs and submissions spell defendant’s name as “Monahan,” and thus throughout this opinion,
the Court uses the parties’ agreed spelling.

From 2001 until September 2003, defendant Monahan was the Bureau Chief who
oversaw the overall operation of the TDF. (Id. ¶ 4.) From September 2003 until
September 2005, Monahan was not employed at the TDF. (Id. ¶ 5.) From September
2005 until June 2006, he was the Facility Director of the TDF. (Id. ¶ 6.) In June 2006,
White, as well as the entire TDF program, were relocated to Rushville, Illinois. (Id. ¶
12.)
From 2000 until August 31, 2005, defendant Budz was the Facility Director who
was responsible for the operation of the TDF. (Id. ¶ 7.) After August 31, 2005, Budz no
longer worked at the TDF. (Id.) The TDF’s security and administration reports to the
Facility Director, and the Facility Director reports to the Bureau Chief. (See Defs.’ Ex.
B, Monahan Dep. at 19-20.)
At the TDF, residents are given various status levels depending on their behavior
in the facility. (Defs.’ LR 56.1(a)(3) Stmt. ¶ 19.) For General Status, i.e., the default
status, residents were permitted to be out of their rooms and utilize other areas of the
TDF (such as the yard, gym, day room, etc.) from approximately 7:00 a.m. to 10:45 p.m.
with the exception of counts, during which time residents had to be in their respective
rooms. (Id.)
When residents commit rule violations, their status is lowered to Close
Management Status, Secure Management Status, or Temporary Secure Management
Status. (Id. ¶ 20.) This determination is made by the TDF’s Behavior Management
Committee (“BMC”), which is composed of security and treatment staff.2 (Id.)
A resident is placed on Close Management Status for reasons including, but not
limited to, an inability or refusal to follow facility rules or when a need for high levels of
2

Defendants Monahan and Budz were never members of the BMC. (Id. ¶ 20.)

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structure, support, and supervision is indicated. (See Defs.’ Ex. L, Resident Handbook at
10.) A detainee on Close Management Status is permitted to access only his room and
the day room. (Defs.’ LR 56.1(a)(3) Stmt. ¶ 21.) When the BMC determines a resident
is dangerous, the resident is placed on Secure Management Status and kept in his or
another room with one hour of shower and day room/recreation time per day. (Id. But see
Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 21.) Lastly, in some circumstances, security staff place a
resident on Temporary Secure Management status pending a determination by the
Behavior Committee, which results in the resident being placed in one of the two
observation units each with a Plexiglas panel in the wall to permit observation of the
resident. (Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 22-23.)
Plaintiff estimates that he spent the majority of his time on Secure Management
Status, Temporary Secure Management Status or Close Management Status while at the
TDF. (Id. ¶ 26.) According to Plaintiff, he spent roughly 50% on Temporary Secure
Management/Secure Management Status, 30% on Close Management Status, and 20% on
general status. (Id.) Plaintiff also states, and defendants dispute, that he was subject to a
consecutive, eight-month period of Temporary Secure Management Status during which
he was only allowed to take a shower or spend time in the day room on only five
occasions. (Id.) Defendants respond that their records show that plaintiff had not been
placed on Temporary Secure Management Status for any eight-month period.
Defendants also contend that Plaintiff failed to file a grievance as to this issue and cannot
specify when this allegedly occurred other than to say that it happened in “2003, 2005,
somewhere in that zone.” (Id.) Plaintiff counters that he, in fact, spent a consecutive,
eight-month period on Temporary Secure Management status and that during that period,

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TDF staff inaccurately stated on his chart that he had refused shower and day room when
he had never done so. (Id. ¶ 31.) Plaintiff also counters that he did not provide a written
grievance during that time period because: (1) he was not allowed to have any paper, pen
or pencil in the cell and (2) when he asked the TDF staff, the BMC, the sergeants, the
captains, and the lieutenants to be let out for a shower or yard or dayroom time, they
responded that “they would look into it.” (Defs.’ Ex. H, White Dep. at 180; Defs.’ LR
56.1(a)(3) Stmt. ¶ 29.) Plaintiff states that during the eight-month period, he complained
verbally to Budz and Monahan about not being let out. (Pl.’s LR 56.1(b)(3)(B) Stmt. ¶
40.)
In addition, Plaintiff asserts that the TDF was infested with insects. (Defs.’ LR
56.1(a)(3) Stmt. ¶ 41; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 19.) Specifically, he states that the
TDF was infested with cockroaches, bees, wasps, ants, mosquitoes, spiders, and gnats.
(Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 19.) From 2001 to 2006, Plaintiff suffered insect bites
that caused sores on his arms, legs, chest, stomach, and back. (Id. ¶ 20.) He sought and
received medical attention for the insect bites on ten occasions. (Id.) Although Budz
does not recall Plaintiff speaking to him about the insect infestation, Plaintiff asserts that
he spoke to Budz about the infestation in 2004 and stated that he was “getting eaten
alive” by bugs in his cell. (Id. ¶¶ 21-22.) Plaintiff also spoke to Monahan about the
cockroach infestation. (Id. ¶ 23.) Budz and Monahan received complaints from other
residents regarding the insect infestation at the TDF. (Id. ¶ 24.) Budz does not recall if
he received or followed up on any complaints from the TDF residents regarding insects.
(Id. ¶ 25.)

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Plaintiff also claims that he was exposed to extreme temperatures at the TDF.
(Defs.’ LR 56.1(a)(3) Stmt. ¶ 55.) He states that the temperatures were freezing during
the winters and unbearably hot in the summers. (Id.)
As to this issue, Plaintiff states, and Defendants dispute, that the temperatures
each winter from 2001 to 2006 were so cold that it affected his ability to sleep. (Pl.’s LR
56.1(b)(3)(C) Stmt. ¶ 31.) Plaintiff states that (1) the windows in his cells did not close
all the way which contributed to the extreme cold and (2) he only had a room with a
properly opening and closing window for approximately fifteen days during the
approximately five-year period that he resided at the TDF. (Id. ¶ 30.) Defendants note
that, while in his cell, Plaintiff was allowed to have long underwear, blankets, sweatshirts
and other clothing, and while in an observation room, he was allowed to have a jumpsuit,
underwear, socks, t-shirts, two sheets and a blanket. (Defs.’ LR 56.1(a)(3) Stmt. ¶ 59.)
In December 2003, Plaintiff filed a grievance stating that his cell window could not close
completely and it was so cold in his cell that he could see his own breath. (Pl.’s LR
56.1(b)(3)(C) Stmt. ¶ 31.) In February 2005, Plaintiff filed a grievance stating that that it
was freezing in his cell and requesting a heated cell. (White Decl. Ex. M, 2/4/05
Grievance.) White also asserts that he verbally complained to Monahan in 2005 about
the cold temperature in his cell. (Defs.’ Ex. H, White Dep. at 47-49.)
The summers were not much better. Plaintiff states that the temperature in his
cell felt like it reached 130 degrees in the summer months. (Id. ¶¶ 55-56.) Defendants
state that the TDF maintenance staff took temperature readings on February 28, 2002,
and August 3, 2003, that show that temperatures were within the acceptable range for
living. (Id. ¶ 65.) Although Plaintiff concedes that the temperature readings in the TDF’s

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A and B living units on August 3, 2003 was between 85.8 and 86.3 degrees, Plaintiff
states that the temperature readings taken on a select number of days were inaccurate
because they were taken in front of blowing fans. (Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 63.)
Additionally, although the engineer of the TDF opined that leaving the food pass door
open on the resident room doors was adequate for allowing air circulation to cool resident
rooms (Defs.’ LR 56.1(a)(3) Stmt. ¶ 58), Plaintiff asserts that the TDF staff members
denied his requests to have his food pass door, i.e., the “chuck hole,” opened for air
circulation.

(Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 58.)

Plaintiff states that he spoke to

Monahan about the hot temperatures in his cell in 2005. (Defs.’ LR 56.1(a)(3) Stmt. ¶
68.) Plaintiff also complained to Budz about the excessively hot temperatures in the
TDF. (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 32.)
Discussion
Summary judgment is appropriate if “the movant shows that 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). The Court views “the facts in a light most favorable to the
nonmovant, and draw[s] all reasonable inferences in that party’s favor.”

Lane v.

Williams, 689 F.3d 879, 881 (7th Cir. 2012).
I.

Statute of Limitations
Defendants first argue that the summary judgment record establishes that

Plaintiff’s § 1983 claim is time-barred. In Illinois, the statute of limitations for a § 1983
claim is two years. Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012); 735 Ill. Comp.
Stat. 5/13-202. The “continuing violation” doctrine governs the accrual of a claim and
“permits a plaintiff in certain circumstances to reach back to the beginning of a claim

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‘even if that beginning lies outside of the statutory period, when it would be unreasonable
to require or even permit him to sue separately over every incident of the defendant’s
unlawful conduct.’” Macklin v. United States, 300 F.3d 814, 824 (7th Cir. 2002) (quoting
Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001)); see Heard, 253 F.3d at 319 (“We
have enough prisoners’ suits without having to create incentives to bring multiple suits
arising out of the same course of events.”)
Plaintiff’s due process claim is based on insect infestation, extreme hot and cold
conditions, and permission to leave his cell only five times during an eight-month period.
Plaintiff’s application for leave to appeal in forma pauperis was granted on March 2,
2007, and thus the Court deems his complaint to have been filed on that date. See Local
Rule 3.3(d). Accordingly, any claim based on events that occurred prior to March 2,
2005, is barred by the statute of limitations unless the continuing violation doctrine
applies such that the claim does not accrue until after that date.
Because Plaintiff has created a triable issue of fact regarding whether his claims
accrued after March 2, 2005, the Court holds that entry of summary judgment in
Defendants’ favor is inappropriate. As to his claim based on insect infestation and
extreme hot or cold conditions, genuine disputes of material fact exist as to whether such
deprivations occurred throughout his time at the TDF from 2001 to June 2006. (Defs.’
LR 56.1(a)(3) Stmt. ¶¶ 3, 9-12; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 19-20 (infestation), 2324 (same), 30 (infestation/extreme cold), 31 (extreme cold), 32-34 (extreme heat); 37
(infestation/extreme heat); see Defs.’ Ex. H, White Dep. at 47, 69-70, 123 (stating he
complained to Budz and Monahan about all of these issues in 2004-05).) As to his claim
of being let out of his cell only five times during a consecutive eight-month period,

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plaintiff states and defendant disputes that this deprivation occurred in “2003, 2005,
somewhere in that zone.” (Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 26, 29; see Defs.’ Ex. H, White
Dep. at 180; Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 40.)

Because a reasonable jury could

conclude from the summary judgment record that White’s claims accrued after March 2,
2005, the Court denies Defendants’ summary judgment motion based on the statute of
limitations.
II.

Due Process Claim
Civilly committed detainees are protected by the Due Process Clause of the

Fourteenth Amendment. Sain v. Wood, 512 F.3d 886, 893 (7th Cir. 2008). “Detainees
are entitled to no less protection than prisoners whose treatment must meet the standards
of the Eighth Amendment.” King v. Kramer, 680 F.3d 1013, 1017 (7th Cir. 2012). The
Court therefore refers to cases brought under either constitutional provision. See id. at
1018.
“Prison conditions may be harsh and uncomfortable without violating the Eighth
Amendment’s prohibition against cruel and unusual punishment.” Dixon v. Godinez, 114
F.3d 640, 642 (7th Cir. 1997).

However, “[t]he Eighth Amendment prohibits

punishments that involve the unnecessary and wanton infliction of pain, are grossly
disproportionate to the severity of the crime for which an inmate was imprisoned, or are
totally without penological justification.” Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir.
1986); see Rhodes v. Chapman, 452 U.S. 337, 346 (1981). “Because conditions of
confinement are part of the penalty imposed upon criminal offenders, they too fall within
the ambit of the Eighth Amendment.” Caldwell, 790 F.2d at 600; see Whitley v. Albers,
475 U.S. 312, 319 (1986); Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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“[T]his protection means that the government may not, through deliberate
indifference to a known risk of serious injury, deny White ‘adequate food, clothing,
shelter, and medical care.’” White v. Monahan, 326 Fed. Appx. 385, 387 (7th Cir. 2009)
(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). For example, “[a] lack of heat,
clothing, or sanitation can violate the Eighth Amendment.” Gillis v. Litscher, 468 F.3d
488, 494 (7th Cir. 2006). The analysis is two-fold: (1) “we must determine whether the
conditions at issue were sufficiently serious so that a prison official’s act or omission
results in the denial of the minimal civilized measure of life’s necessities”; and (2) “[i]f
the inmate successfully establishes that the conditions were sufficiently serious, we then
examine whether prison officials acted with deliberate indifference to the conditions in
question.” Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (quotations omitted).
“Deliberate indifference . . . means that the official knew that the inmate faced a
substantial risk of serious harm, and yet disregarded that risk by failing to take reasonable
measures to address it.” Id. (quotation omitted). “The minimum intent required is actual
knowledge of impending harm easily preventable.” Jackson v. Duckworth, 955 F.2d 21,
22 (7th Cir. 1992) (quotation omitted).
As an initial matter, Defendants argue that they should be afforded qualified
immunity as to Plaintiff’s due process claim. “Qualified immunity shields a government
official from liability for civil damages unless his or her conduct violates a clearly
established principle or constitutional right of which a reasonable person would have
known at the time.” Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012); see Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “There is a two-part test for qualified immunity:
(1) whether the facts, taken in the light most favorable to the plaintiff, show that the

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defendants violated a constitutional right; and (2) whether that constitutional right was
clearly established at the time of the alleged violation. Betker, 692 F.3d at 860 (quotation
omitted). However, “[w]hen the qualified immunity inquiry cannot be disentangled from
disputed facts, the issue cannot be resolved without a trial.” Gonzalez v. City of Elgin,
578 F.3d 526, 540 (7th Cir. 2009).
Here, the undisputed facts show that the Court must grant summary judgment in
favor of Monahan and Budz with regard to (1) any claim based on the time periods when
White did not reside at the TDF and (2) any claim based on events that occurred when
Monahan or Budz was not employed at the TDF. The factual record, taken in the light
most favorable to the Plaintiff, show that Monahan and/or Budz could not have violated
his constitutional right during those time periods. The parties agree that: (1) White was
not a detainee at the TDF from April 4, 2002 to February 27, 2003 and April 2005 to May
25, 2006; (2) Monahan did not work at the TDF from September 2003 until September
2005; and (2) Budz no longer worked at the TDF after August 31, 2005. (Defs.’ LR
56.1(a)(3) Stmt. ¶¶ 5, 7.)
However, with regard to the claims against Monahan during his employment at
the TDF as Bureau Chief from 2001 to September 2003 and as Facility Director from
September 1, 2005 to June 2006 and against Budz as Facility Director from 2000 to
August 31, 2005 (excluding, of course, those months during which White was not a
detainee at the TDF), the parties present conflicting versions of the material facts that
underlie Plaintiff’s due process claims as discussed below. Accordingly, it would be
inappropriate for the Court to grant defendants’ summary judgment motion based either

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on qualified immunity or on the merits. The Court addresses each basis for Plaintiff’s
due process claim in turn.
A.

Claim That Plaintiff Was Let Out of Cell Only Five Times During
Eight-month Period

“[W]here a plaintiff is provided with adequate food, clothing, and sanitation, the
conditions of solitary confinement do not on their face violate the Eighth Amendment.”
Del Raine v. Williford, 32 F.3d 1024, 1033 (7th Cir. 1994) (quotation omitted). The
Seventh Circuit has held that one shower a week for inmates of a segregation unit is
constitutionally sufficient. Davenport v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir.
1988). Further, “the principles that can be drawn from this circuit’s case law manifest a
clear aversion to denying prisoners outside exercise time for extended periods absent an
acute need to do so.” Pearson v. Ramos, 237 F.3d 881, 889 (7th Cir. 2001) (citing
Davenport, 844 F.2d at 1315, and Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir.
1988)).
Plaintiff states that (1) he was placed on Secure Management Status for a
consecutive eight-month period, and (2) he was only allowed to leave his cell five times
during that period. (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 14-16.) Defendants respond that
Plaintiff was never placed in Secure Management Status for a consecutive eight-month
period and that he repeatedly refused to take showers. (Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 29,
33.) Although Defendants state generally that Plaintiff was placed on Close Management
Status during eight non-consecutive periods for various rule violations, including
threatening of staff, Defendants do not provide any factual basis for each period of unit
restriction or any acute security situation that required any deprivation that may have
occurred. (See id. ¶¶ 32-34.) Plaintiff further argues that he never refused to take

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showers, and any report that he refused to take a shower is false. (Pl.’s LR 56.1(b)(3)(C)
Stmt. ¶¶ 14-16.)
The Court holds that when viewing the facts in the light most favorable to the
nonmovant, a reasonable jury could conclude that Plaintiff suffered a sufficiently serious
deprivation of the minimal civilized measure of life’s necessities. It is for the trier of fact
to determine whether the deprivation actually occurred, the duration of any such
deprivation, and whether there was a particularly acute need for such a deprivation.
Further, the parties dispute whether Monahan and Budz were deliberately
indifferent in this regard. Although Plaintiff states that he complained to Monahan and
Budz about not being allowed out of his room when placed on Close or Secure
Management Status (Defs.’ Ex. H, White Dep. at 99-100) and that they failed to take any
action to address it, neither Monahan nor Budz recall such a complaint (Defs.’ Ex. D,
Budz Dep. at 89; Defs.’ Ex. H, White Dep. at 48-49). Given the disputed material facts,
and because “credibility determinations are inappropriate on summary judgment”, see
Walker v. Sheahan, 526 F.3d 973, 980 (7th Cir. 2008), the Court denies Defendants’
motion for summary judgment as to this claim.
B.

Insect Infestation

“[A] prolonged pest infestation, specifically a significant infestation of
cockroaches and mice, may be considered a deprivation sufficient to constitute a due
process violation.” Sain, 512 F.3d at 894.
Depending on how extensive the infestation of a prisoner’s
cell is, what the infesting pests are, what odors or bites or
risk of disease they create, what particular psychological
sensitivities the prisoner was known to have . . . , and how
long the infestation continues, a trier of fact might
reasonably conclude that the prisoner had been subjected to

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harm sufficient to support a claim of cruel and unusual
punishment even if he had not contracted a disease or
suffered any physical pain.
Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012). There are “three different types of
harm that infestation of a prisoner’s cell can create. One is disease. A second is
psychological harm.

And a third . . . is hazard, or probabilistic harm—‘loss of a

chance[.]’” Id. at 615.
“[C]ockroaches can transmit bacteria that aggravate asthma and cause other
disease.” Id. (citations omitted). “The potential psychological harm from living in a small
cell infested with mice and cockroaches is pretty obvious.” Id. Under the third type of
harm, “heavy, protracted infestation of a prisoner’s cell with such pests might be found to
be a compensable hazard even if the prisoner plaintiff had been lucky and escaped
disease and had had sufficient psychological fortitude (or ignorance) to avoid suffering
mental distress whether from knowledge that he might become seriously ill as a
consequence of the conditions in his cell or from sheer disgust.” Id. at 615-16.
In Sain v. Wood, a case upon which Defendants rely, the summary judgment
record showed that a detainee during his six-year confinement at the TDF, “often saw
‘several’ cockroaches crawling in his cell,” “was bitten by a cockroach twice during his
detention”, and “an exterminator regularly visited his cell-every month or month and a
half-and also would come in response to Mr. Sain’s complaints.” 512 F.3d 886, 894 (7th
Cir. 2008). The Sain court stated that, although “[t]he conditions of Mr. Sain’s detention
were certainly unpleasant” and “[t]he state deserves no praise for permitting them to
persist”, “we cannot say that, whether considered individually or collectively, they
constitute a constitutional violation.” Id. The court concluded that “a reasonable jury

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could not concluded that Mr. Sain’s conditions of confinement were objectively serious
enough to establish a constitutional violation.” Id.
On the other hand, in Antonelli v. Sheahan, a Cook County Jail inmate alleged
that defendants were deliberately indifferent to the prolonged pest infestation in his jail
cell in that cockroaches were “everywhere,” “crawling on his body (along with mice) and
“constantly awaken[ing] him, and “causing the environment to be unsanitary,” and
alleged that his cell had been sprayed twice by a pest control service in sixteen months.
81 F.3d 1422, 1431 (7th Cir. 1996). Because the plaintiff had alleged that the infestation
existed during a prolonged period of time and the above conditions alleged significant
physical harm, the Antonelli court held that these allegations, if proven, would violate the
Due Process Clause or the Eighth Amendment.

Id.

The Antonelli court therefore

reversed the district court’s granting defendant’s motion to dismiss as to this claim. Id.
Similar to Antonelli, and in contrast to Sain, here, Plaintiff has presented
sufficient facts such that a reasonable jury could conclude that the pest infestation was
objectively serious enough to establish a constitutional violation. Plaintiff states that the
TDF and his cells were infested with cockroaches, ants, wasps, bees, spiders, gnats, and
mosquitoes from 2001 through 2005 and that he complained about the infestation
throughout this period. (Defs.’ Ex. H, White Dep. at 55, 69-70; see White Decl., Ex. I,
8/15/03 Grievance (cockroaches, bees, spiders, ants).)

He states that mostly he saw

insects in his cell and that he would wake up with red welts from insect bites that puffed
up or turned into sores. (Id. at 55-56.) Plaintiff estimates that, from 2001 to 2006, there
were cumulatively only nine weeks (including winters) that he was not bitten by an
insect. (Id. at 159.) He estimates that he saw a doctor to treat infections due to his insect

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bites over ten times but does not know the specific dates or times. (Id. at 58.) Plaintiff
states that the bites were treated with Bacitracin and bandages. (Id. at 57, 60.) He states
that during a period of time when he was being held in an observation cell on “temp
special” status, he showed Monahan through the Plexiglas panel that Plaintiff’s food trays
were stacked as high as his waist due to the TDF staff members’ refusal to remove them
and that they were covered in maggots and roaches. (Id. at 74, 78.) Monahan stated that
he would take care of it, but the trays and insects remained for two weeks to a month and
smelled so bad that the staff and residents would not even come within five to ten feet of
his cell. (Id. at 47-48, 78-79.) Plaintiff also complained to Budz about the insect
infestation. (Id. at 61, 69-70, 77.) Plaintiff states that he asked TDF staff members on
five occasions to send exterminators to spray his observation cell, but the staff members
were not allowed to open the observation cell door to enable an exterminator to enter.
(Id. at 67.)
Given the state of the record and again, viewing all disputed facts in Plaintiff’s
favor, the Court holds that there are triable issues regarding both the seriousness of the
insect infestation in Plaintiff’s cells and the state of mind of Budz and Monahan.
Summary judgment as to this ground is also denied.
C.

Extreme Cold and Extreme Heat/Lack of Ventilation

Inmates have “a right to be free from extreme hot and cold temperatures.” Shelby
County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir. 1986). Inmates also have
a right to adequate ventilation. Id. “To determine whether extreme heat or cold amount
to a serious constitutional deprivation, courts look to various factors, including the
severity of the cold or heat, its duration, whether the prisoner has alternative means to

15

protect himself, and whether the prisoner must endure other uncomfortable or harsh
conditions.” Moore v. Monahan, No. 06 C 6088, 2009 WL 310963, at *6 (N.D. Ill. Feb.
9, 2009). As the Seventh Circuit has observed, “[m]any things-beating with a rubber
truncheon, water torture, electric shock, incessant noise, reruns of “Space 1999”-may
cause agony as they occur yet leave no enduring injury. The state is not free to inflict
such pains without cause just so long as it is careful to leave no marks.” Powers v.
Snyder, 484 F.3d 929, 932 (7th Cir. 2007) (quotation omitted). The Court addresses
Plaintiff’s assertion that he had been exposed to extreme cold and extreme heat in turn.
In cases dealing with cold conditions, the plaintiff must establish both that he was
exposed to cold and he lacked alternative means to keep warm. See Dixon v. Godinez,
114 F.3d 640, 643 (7th Cir. 1997) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th
Cir.1996) (no blankets); Murphy v. Walker, 51 F.3d 714, 720-21 (7th Cir.1995) (no
clothes, bed, or bedclothing in mid-November); Del Raine, 32 F.3d at 1031 (no clothing,
broken window, and forty-degrees-below-zero wind chill); Henderson v. DeRobertis, 940
F.2d 1055 (7th Cir. 1991) (malfunctioning heating system, broken window, subzero air
temperature)); see Wilson v. Seiter, 501 U.S. 294, 304 (1991) (“Some conditions of
confinement may establish an Eighth Amendment violation ‘in combination’ when each
would not do so alone, but only when they have a mutually enforcing effect that produces
the deprivation of a single, identifiable human need such as food, warmth, or exercise-for
example, a low cell temperature at night combined with a failure to issue blankets.”).
“The question, however, is not simply whether the inmate had some alternative means of
warmth, but whether the alternative was adequate to combat the cold.” Dixon, 114 F.3d
at 643. “Moreover, it is not just the severity of the cold, but the duration of the condition,

16

which determines whether the conditions of confinement are unconstitutional.” Id. (citing
Del Raine, 32 F.3d at 1031 (extreme exposure to brutal cold during a strip search), and
Henderson, 940 F.2d at 1060 (failure to issue extra blankets, winter coats, or additional
shirts during four-day period when temperature plummeted below zero and prison
heating system malfunctioned)). “A condition which might not ordinarily violate the
Eighth Amendment may nonetheless do so if it persists over an extended period of time.”
Id. “[T]he minimal standards required by the Eighth Amendment include the right of a
prisoner ‘not to be confined in a cell at so low a temperature as to cause severe
discomfort[.]” Id. at 644 (quoting Del Raine, 32 F.3d at 1035).) Therefore, “courts
should examine several factors in assessing claims based on low cell temperature, such as
the severity of the cold; its duration; whether the prisoner has alternative means to protect
himself from the cold; the adequacy of such alternatives; as well as whether he must
endure other uncomfortable conditions as well as cold.” Id.
Plaintiff spent six months to a year in a general status room (Cell 101A),
including winter months, that had a damaged window that remained permanently half
way open. (Defs.’ Ex. H, White Dep. at 111-12.) Plaintiff spent three to six months,
including winter months, in another regular room (Cell 118B, 119B, or 120B) that had a
window that remained a quarter of the way open. (Id. at 112-13.) Plaintiff attempted to
plug the space in these windows with towels or clothing. (Id. at 112-13.) The record
shows that during the winter of 2003, Plaintiff wore three pairs of socks, three pairs of
sweatpants, two t-shirts, one sweatshirt, one jacket, and one Bulls coat in a regular room.
(Pl.’s Decl. Ex. J, 12/5/03 Grievance.) The record also shows that at one point, Plaintiff
had two blankets while in a regular room. (Defs.’ Ex. H, White Dep. at 126.) During the

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winter months from 2001 to 2005, when White asked the TDF staff for a jacket, coat,
long underwear, long sleeve shirt and extra blankets, he never received anything in
response to his requests. (Id. at 127-28.)
In addition, Plaintiff spent periods of time in the A and B observation rooms
during the winter. (Id. at 113-14.) The window in the A observation room was open all
the way and the window in the B observation room was open half way, and Plaintiff had
nothing to cover the gaps in the windows. (Id.) Plaintiff states that during the winter
months while in an observation room, he wore a jumpsuit, three pairs of underwear, three
t-shirts, and three pairs of socks and had a blanket and two sheets. (Defs.’ Ex. H, White
Dep. at 125.)
To counter these statements, Defendants provide a temperature log from a single
day, i.e., February 28, 2001, that shows that when the outside temperature was 21.1
degrees, the temperature in Rooms A403, A206, B416, and B121 ranged between 71.3
and 74.6 degrees. (Defs.’ LR 56.1(a)(3) Stmt. ¶ 63.) On the other hand, Plaintiff
questions the reliability of their measurements. Plaintiff states that the radiator heat to his
rooms was unreliable and broke down with great regularity. (Pl.’s LR 56.1(b)(3)(B)
Stmt. ¶ 59; Pl.’s Ex. 1, Bloyer Decl. ¶ 7.) Plaintiff states that he was unable to sleep for a
total of three weeks due to the cold temperatures in the regular and observation cells.
(See Defs.’ Ex. H, White Dep. at 169 (“The temperatures was so cold I . . . was freezing,
I was shaking almost the whole night. I could not sleep because of that.”).) Plaintiff
complained to TDF staff to have the windows repaired to no avail. (Id. at 113-16.)
While in a regular cell, Plaintiff claims that he often could not sleep due to the cold,
sometimes up to three days. (Id. at 185.)

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Among the material facts in dispute are:

(1) whether the temperatures in

Plaintiff’s cells were so cold that he could see his breath; (2) whether he felt he was
freezing; (3) whether he was unable to sleep for three nights; (4) whether the temperature
log from a single day on February 28, 2001, was indicative of the internal temperatures
throughout the period from 2001 to 2006; (5) whether cold conditions of which Plaintiff
complains persisted each winter from 2001 to 2006; (6) whether Plaintiff was actually
provided any long underwear, long-sleeve shirts, sweatshirt, and a jacket when in a
regular cell during the winter months other than 2003; and (7) whether a jumpsuit, three
pairs of underwear, three t-shirts, three pairs of socks, a blanket and two sheets were
adequate to protect Plaintiff from severe cold during winter months while in an
observation room.

In short, the Court holds that there are material issues of fact

regarding the severity of the cold, its duration, whether the clothing and bedding provided
Plaintiff with alternative means of protection from the cold, and the adequacy of such
alternatives.
Additionally, whether Defendants acted with the requisite intent is hotly
contested.

Plaintiff states that he complained to them about the coldness and the

malfunctioning windows. (Defs.’ Ex. H, White Dep. at 47, 69-70, 123, 164-65; see Pl.’s
LR 56.1(b)(3)(C) Stmt. ¶¶ 2-3, 5-11, 31; Pl.’s LR 56.1(b)(3)(B) Stmt. ¶¶ 60-61.) Budz
claims that he reviewed temperature logs and decided that the temperatures were within
the acceptable range for living and not much different than the general community. (Id. ¶
65.) In December 2003, White filed a grievance stating that the cell window would not
close, the temperature in his cell was so cold that he could see his own breath, and the
cold was intolerable despite his wearing several layers of clothes. (Pl.’s LR 56.1(b)(3)(C)

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Stmt. ¶ 31; Defs.’ Ex. H, White Dep. at 123-24; Pl.’s Ex. 23, White Decl. ¶ 13; id., Ex. J,
12/5/03 Grievance.)

Given the state of the record, the Court denies Defendants’

summary judgment motion regarding Plaintiff’s due process claim based on the extreme
cold because a reasonable jury could find that an objectively serious deprivation
occurred.
Plaintiff also bases his due process claim on the extreme hot temperatures at the
TDF. Plaintiff presents evidence, and Defendants provide contrary evidence, that the
combination of poor ventilation and extreme hot temperatures constituted a constitutional
violation. Although it is undisputed that the resident rooms are not air conditioned,
Defendants state that during the summer months, the A and B units at the TDF had air
conditioning in the day rooms, large barn fans were placed in the halls outside resident
rooms, and residents were permitted to obtain ice, have fans in their rooms, open their
windows, and open chuck holes in their doors to increase air flow. (Defs.’ LR 56.1(a)(3)
Stmt. ¶ 58.)

Plaintiff counters that the air conditioning broke down regularly, the

electricity would shut off two to three times per day, he had no fan and his requests for
one were denied, and the TDF staff would constantly turn the power off in his
observation room during the day and night for periods up to 48 hours, deny his requests
to open his chuck hole in both observation rooms and regular rooms, and refuse to give
him ice. (Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 58; Defs.’ Ex. H, White Dep. at 93-97; Pl.’s Ex.
1, Bloyer Decl. ¶ 7.)
Plaintiff also states that the extreme heat and lack of ventilation caused him to
sweat through his clothes and bed sheets, made him feel constantly exhausted and tired,
and caused him to feel like he was going to pass out. (Pl.’s LR 56.1(b)(3)(B) Stmt. ¶ 57.)

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Defendants provide a single temperature log from August 3, 2003 (at an unspecified time
of day) that shows that the temperature in Unit A’s day room was 85.4 degrees and Unit
B’s day room was 84.8 degrees. (Defs.’ Ex. N, TDF Temperature Logs.) Viewing the
facts in the record in the light most favorable to Plaintiff, a reasonable jury could find that
(1) the temperatures in Plaintiff’s rooms were much hotter than the day rooms, which
were equipped with air conditioning and fans; (2) any fan to alleviate extreme heat would
not work without electricity which Plaintiff claims was often shut off in both his
observation and regular rooms; (3) any relief provided by fans in any hallway would not
provide air circulation in Plaintiff’s rooms if the chuck hole door remained closed; (4)
Plaintiff was often denied ice as a way of coping with the extreme heat; and (5) the
extreme heat persisted each summer from 2001 to 2006. Accordingly, the Court holds
that Plaintiff has raised a triable issue of fact regarding whether the extreme heat and lack
of ventilation constituted an objectively serious deprivation.
Lastly, it is disputed whether Defendants were deliberately indifferent with regard
to any deprivation based on extreme heat and lack of ventilation. Plaintiff states that he
complained directly to Monahan and Budz about the extreme heat, inadequate ventilation
and lack of alternative ways to cope with these issues. He also claims that Defendants
said that they would look into it, and no changes were made to relieve the extreme heat
and lack of ventilation. (Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 36-40; Defs.’ Ex. H, White Dep.
102, 104-06.) Defendants contest these statements. (Id.) Accordingly, this issue also
requires a trial.

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Conclusion
For the reasons provided herein, the Court grants in part and denies in part
Defendants’ summary judgment motion [doc. no. 198]. The motion is granted as to any
claim based on any purported deprivation that occurred when: (1) Plaintiff was not a
detainee at the TDF from April 4, 2002 to February 27, 2003 and April 2005 to May 25,
2006; (2) Monahan did not work at the TDF from September 2003 until September 2005;
and (2) Budz no longer worked at the TDF after August 31, 2005. In all other respects,
the Court denies the motion. Defendants’ motion to strike [217] is stricken as moot
because the Court, as a matter of course, determines whether statements of fact are
supported by admissible evidence that is appropriately before the Court. The parties shall
be prepared to schedule a settlement conference, final pretrial conference, final pretrial
order due date, and trial date at the status hearing set for February 26, 2013 at 9:15 a.m.
SO ORDERED

ENTER: 2/14/13

____________________________________
JOHN Z. LEE
U.S. District Judge

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