Barbosa v. McCann et al
Filing
148
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 9/26/2012: Mailed notice(etv, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IRINEO BARBOSA R-45182
Plaintiff,
v.
TERRY McCANN, ED BUTKIEWICZ,
LT. BURZINSKI, and LT. VAUGHN,
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No. 08 C 5012
Judge Rebecca R. Pallmeyer
Defendants.
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Irineo Barbosa has brought this suit under 42 U.S.C. § 1983, asserting that
he suffered unconstitutional confinement conditions in segregation (a/k/a “F-House”) at Stateville
Correctional Center during the summer of 2007. Of the many claims advanced in Plaintiff’s initial
complaint, all but two have been dismissed in earlier orders. See Barbosa v. McCann, No. 08 C
5012, 2011 WL 4062469, *1-2 (N.D. Ill. Sept. 12, 2011). Defendants now move for summary
judgment on Plaintiff’s remaining claims: that he had inadequate bedding, and that his cell was
infested with cockroaches. For the reasons set forth here, the motion is granted.
FACTUAL BACKGROUND
Plaintiff lived in punitive segregation at Stateville Correctional Center’s F-House from
May 2, 2007 until November 2, 2007. (Plaintiff’s 56.1 Response (hereinafter “Pl.’s Resp.”) [99] ¶ 5.)
Plaintiff claims that he saw “gangs” of roaches in his cell on unspecified dates during that time.
(Pl.’s Resp. at ¶ 22.) Plaintiff asserts that the roaches kept him from sleeping more than a few
hours at night, leaving him sleep-deprived, unable to exercise or concentrate, and suffering from
memory problems. (Barbosa Aff. [100] at 11-12.) He also stated that he developed “red bumps”
due to the roaches, and was not provided cleaning supplies for his cell. (Barbosa Dep., Ex. A to
Defs.’ Mem. of Law in Support of Their Mot. for Summ. J. (hereinafter “Defs.’ Mem.”),
at 31:15-24, 32:1-13.) He complained to Defendant Edmund Butkiewicz, a counselor at Stateville,
on unspecified dates, and he saw exterminators in the building once or twice during his time at
F-House, but never in his own cell. (Pl.’s Resp. ¶¶ 23-24.)
In support of an earlier motion for summary judgment, Defendants presented evidence that
outside professional exterminators visited Stateville at least eight times per month during the
disputed period. (Defs’ Local Rule 56.1 Filing (hereinafter “Defs.’ 56.1") [63] ¶ 25, citing Critter
Ridder invoices, [65-2], at 30, 33, 36, 39, 42, 45, 48, 50.) Those records document repeated visits
to the visitor center, kitchen, laundry, chapel, barbershop, administrative offices, officers’ quarters,
and warden’s house. (Critter Ridder invoices, [65-2], at 30, 33, 36, 39, 42, 45, 48, 50.) They do
not contain any explicit reference to extermination of prisoners’ cells.
(Critter Ridder
invoices, [65-2], at 30, 33, 36, 39, 42, 45, 48, 50.) As Defendants point out, however, Plaintiff
himself acknowledged in his deposition that he witnessed exterminators spray “in front of the cells,”
“on the front of [his cell] door” and “at the bottom [of the door].” (Barbosa Dep. 30:3-7.)
Plaintiff also alleges that Defendants denied him denied reasonably adequate sleeping
arrangements because his cell’s mattress was black and lumpy and he was denied a pillow,
resulting in neck, head, and back pain. (Pl.’s Resp. ¶¶ 6, 8-9.) Plaintiff claims that he complained
to Defendants Butkiewicz and Vaughn on several unspecified dates about his bedding.
(Pl.’s Resp. ¶ 7.) Plaintiff conceded in his deposition, however, that he had received a clean sheet
once a week. (Barbosa Dep. 11:1-13.)
DISCUSSION
Summary judgment is proper when there is no genuine dispute of material fact such that the
movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Wackett v. Beaver Dam,
Wis., 642 F.3d 578, 581 (7th Cir. 2011). Although this court earlier denied their motion for summary
judgment on the merits of the roach-infestation and dirty-bedding claims (Memorandum Opinion and
Order [122], at 9-10), Defendants assert that they are entitled to qualified immunity, which “shields
government officials from civil damages liability unless the official violated a statute or constitutional
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right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 132
S. Ct. 2088, 2093 (2012). Qualified immunity doctrine provides “‘ample room for mistaken
judgments’ and protects all those but the ‘plainly incompetent and those who knowingly violate the
law.’” Purvis v. Oest, 614 F.3d 713, 720 (7th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S. 224,
227 (1991)).
The court earlier concluded that Plaintiff had presented a dispute of fact concerning alleged
constitutional violations. To prove such violations, Plaintiff would need to demonstrate, first, that
he suffered a sufficiently serious deprivation and, second, that Defendants acted with deliberate
indifference to his confinement conditions. Sain v. Wood, 512 F.3d 886, 893-94 (7th Cir. 2008).
The court concluded earlier that prolonged infestation of cockroaches that seriously impacts a
prisoner’s health may cause a severe enough deprivation to constitute a due process violation. See
Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996); but see Stanley v. Page, 44 F. App’x 13
(7th Cir. 2002) (infestation of pests in cell and finding roaches in ice cubes not Eighth Amendment
violation). Considering all facts in the light most favorable to Plaintiff, he has met the sufficientlyserious-deprivation requirement.
Government officials do have some discretion in how they address inadequate prison
conditions, such as roach infestation, without evidencing deliberate indifference. See Sain,
512 F.3d at 895. In this motion, Defendants emphasize this principle and point out that no case law
establishes that failure to exterminate within individual prison cells is an abuse of discretion. Thus,
Defendants urge, the unlawfulness of their conduct was not apparent. (Defs.’ Reply in Supp. of
Their Mot. for Summ. J. on the Issue of Qualified Immunity (hereinafter Defs.’ Reply) [137] at 3-4)
(“Plaintiff cannot cite to any Seventh Circuit law that requires prisons to do more than take
reasonable measures to abate infestation problems.”) Accordingly, Defendants urge, they are
entitled to qualified immunity. See Anderson v. Creighton, 483 U.S. 635, 637 (1997). In order to
show a “clearly established” right, Plaintiff need not identify a case holding that a prisoner has a
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constitutional right specific to the actions alleged against Defendants. Estate of Miller, ex rel.
Bertram v. Tobiasz, 680 F.3d 984, 991 (7th Cir. 2012) (“[C]ases in this circuit have understood the
term ‘right’ in a broader sense.”). Nevertheless, the qualified immunity doctrine shields public
officials from liabilty for “mere mistakes in judgment, whether the mistake is one of fact or one of
law.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations omitted).
Plaintiff here asserts that there was no extermination spraying inside his cell, and
Defendants have not contested this. On closer examination of the record, however, the court is no
longer certain that the failure to spray inside the cell clearly establishes that Defendants were
deliberately indifferent to the alleged unconstitutional conditions (as opposed to simply mistaken
about what steps were necessary). During the relevant months, an exterminator visited the prison
eight times per month, a frequency which itself belies deliberate indifference toward a pest
infestation problem. Moreover, though the exterminators did not actually enter Plaintiff’s own cell,
he acknowledges that they sprayed in front of his cell, on the door itself, and at the bottom of the
door. Spraying the inside of a confined living space may not be safe or practicable in a prison
setting, but Defendants have not explained their failure to take this additional step, and Plaintiff’s
testimony suggests that further efforts were necessary to rid his cell of the “gangs” of roaches he
witnessed there. Still, while Defendants’ efforts may have been ineffective, there were repeated
and well-documented visits from exterminators who sprayed in several locations throughout the
prison and made contact with the outside of Plaintiff’s own cell. This evidence is inconsistent with
a finding of deliberate indifference.
At a minimum, the evidence defeats the conclusion that
Defendants Butkiewicz and Vaughn, to whom Plaintiff complained, knew or should have known that
their conduct violated the Constitution.
As to Plaintiff’s claim that his bedding was inadequate, an uncomfortable mattress, by itself,
is not a constitutional violation. See Killen v. McBride, 70 F.3d 1274, 1995 WL 687626, *2
(7th Cir. 1995) (the Constitution “does not mandate comfortable prisons”) (internal quotation marks
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and citations omitted). Plaintiff’s allegation that his mattress was dirty might require further analysis
if he had not conceded in his deposition that he was furnished each week with a clean sheet to
cover the mattress. (Barbosa Dep. 11:1-13.) Clean sheets that cover an otherwise dirty mattress
are sufficient to prevent the type of serious deprivation prohibited under the Constitution.
See Thomas v. Winters, No. 04-3186, 2006 WL 2547961, at *8 (C.D. Ill. Aug. 31, 2006) (“[P]laintiff
did not have to lie directly on a soiled mattress, but instead slept on a clean sheet on top of the
mattress. Under these circumstances, the Court does not believe the soiled mattresses, as
described by the plaintiff, amounted to the kind of serious deprivation prohibited by the Eighth
Amendment, either viewed alone or viewed in the totality of conditions.”). The allegedly inadequate
bedding provided did not cause Plaintiff to suffer a violation of his constitutional rights.
CONCLUSION
Defendants’ motion for summary judgment [127] is granted. Judgment is entered in favor
of Defendants.
ENTER:
Dated: September 26, 2012
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
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