Murithi v. Hardy et al
Filing
109
MEMORANDUM Opinion and Order: For the reasons explained in the Memorandum Opinion and Order, the defendants' motion for summary judgment 82 is granted. Civil case terminated. Signed by the Honorable John J. Tharp, Jr on 3/9/2016.Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MWENDA MURITHI,
Plaintiff,
v.
MARCUS HARDY and JAMES
LOUCH,
Defendants.
)
)
)
)
)
)
)
)
)
No. 13 C 00599
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Mwenda Murithi, a prisoner formerly confined at Stateville Correctional Center
(“Stateville”) brought this action under 42 U.S.C. § 1983 concerning a number of allegedly
unconstitutional conditions of confinement. Named as defendants are former Warden Marcus
Hardy and former Chief Engineer James Louch. The defendants’ motion for summary judgment
is currently before the Court. Mot. Summ. J., ECF No. 82. Because the undisputed facts show
that the conditions about which Murithi complains do not rise to the level of a constitutional
violation, the motion for summary judgment is granted and judgment will be entered for the
defendants.
The plaintiff has been ably represented in this case by Michael A. Weinberg and Julie
Johnston-Ahlen of Novack and Macey LLP, who were recruited and appointed by the Court. The
Court thanks these attorneys for their service, which has helped ensure meaningful access for all
to our judicial system and has been in keeping with the highest traditions of the Trial Bar of the
Northern District of Illinois.
BACKGROUND1
Plaintiff Murithi is currently in the custody of the Illinois Department of Corrections
(“IDOC”) and was incarcerated at Stateville Correctional Center (“Stateville”) from April 22,
2009 until February 2013. DSOF ¶¶ 1-2. While at Stateville, Murithi was initially housed in F
house from May 2009 until October or November 2009, then moved to B house until December
2012, then returned to F house until February 2013. Id. ¶ 2. Murithi was then transferred to a
different IDOC facility. Id. ¶ 1.
Defendant Hardy has been employed by IDOC for twenty-one years; from October 2009
until December 2009, he was the Assistant Warden of Operations at Stateville, and from
December 2009 until December 2012, Hardy served as the Warden of Stateville. Id. ¶ 3. As
Warden, Hardy was responsible for supervising the safety, security, and sanitation of the
Stateville facility. Id. ¶ 4. Hardy testified that he made rounds in the cell houses approximately
once per week to interact with the staff and offenders and to make sure the institution was
1
The Court takes the following facts from the defendants’ Statement of Material Facts
(ECF No. 84) (“DSOF”), where undisputed, Murithi’s Response to the defendants’ Statement of
Material Facts and Statement of Additional Material Facts (ECF No. 87) (“MSOF”), and the
defendants’ Response to Murithi’s Statement of Additional Facts (ECF No. 102) (D Resp.).
A number of Murithi’s statements of fact cite generally to hundreds of pages of exhibits.
See, e.g., MSOF ¶ 88. The defendants object, arguing that such a general citation is inadequate
for them to be able to properly respond and dispute the statement. The Court agrees that such
citations are insufficient under Local Rule 56.1. As such, the Court will not consider the
statements solely supported by these general citations in MSOF ¶¶ 93, 96, 98, 100.
Furthermore, Murithi’s statements of fact include three alleged admissions by IDOC,
citing various internal documents and emails between IDOC employees. MSOF ¶¶ 97, 101, 104
(allegedly admitting that there was a roach infestation at Stateville, that birds and their droppings
cause health issues, and that mice are unsanitary, respectively); see also M Ex. Q 2, 32, 47-48,
60, ECF No. 101. The defendants deny that such documentation constitutes a binding admission
of the IDOC. See D Resp. ¶ 104. While these documents may evidence knowledge of the
presence of these pests, and responses to reports of such problems, or other evidentiary
significance, they are insufficient evidence to constitute binding admissions on the IDOC’s
behalf in response to Murithi’s claims.
2
operating properly. Id. ¶ 4; D Ex. B 75:20–76:20, 84:7-15, ECF No. 84-2. Hardy reviewed
monthly reports—the Safety and Sanitation Inspection and the Safety and Sanitation Report—
that reported the results of monthly inspections regarding any safety and sanitation issues. MSOF
¶ 87.
Defendant Louch served as the Acting Chief Engineer at Stateville from December 2009
until February 2015 and reported to the Assistant Warden of Operations. DSOF ¶ 5. As chief
engineer, Louch was responsible for overseeing maintenance for the Stateville facility. Id. Louch
testified that if an inmate submitted a grievance regarding a maintenance issue, whoever received
that grievance would submit a work order and it would be forwarded to him to address. MSOF
¶ 85; D Ex. C. 174:22–176:11, ECF No. 84-3. Louch was not involved with sanitation at
Stateville or overseeing pest control. DSOF ¶¶ 19, 49.
I.
Cleaning Supplies
Murithi alleges that the common areas of both B and F house had dirt, dust, and animal
excrement on the floor, stairs, and walkways. MSOF ¶¶ 89-90. Cell house cleaning is handled by
a safety and sanitation detail made up of inmate workers who report to security staff. DSOF ¶ 11.
These inmate porters were responsible for daily cleaning in the common areas of B and F houses,
which included tasks such as picking up garbage, sweeping, mopping, and buffing the floors
once or twice each week.2 Id. ¶ 12. Inmates were responsible for cleaning their own cells. Id.
Murithi cleaned his cell approximately twice per week using towels and shampoo from
commissary.3 Id. ¶ 15. Murithi testified that there was no procedure in place for inmates to obtain
cleaning supplies (other than those available for purchase at commissary) during the beginning
2
Murithi does not dispute that inmate porters were responsible for and did perform
cleaning in the common areas; he disputes the adequacy of their cleaning efforts. MSOF ¶ 12.
3
Murithi does not dispute that he cleaned his cell twice per week but disputes that he was
able to sufficiently clean and sanitize his cell. MSOF ¶ 15.
3
of his incarceration at Stateville, but at some point (the parties disagree when), cleaning supplies
began to be passed out to inmates on a regular basis, at least in B house.4 Id. ¶¶ 13-14; MSOF
¶¶ 13-14. Murithi used these cleaning supplies to clean his cell between ten to fifteen times.
DSOF ¶ 14.
Murithi testified that he spoke to Hardy a total of three times while incarcerated at
Stateville, specifically while Hardy made rounds in B house. Id. ¶ 17. Murithi asked Hardy for
cleaning supplies on each of these three occasions. Id. ¶ 17. Murithi testified that Hardy did not
respond to one request for cleaning supplies and that his response to the other two requests was
that they would look into it. Id. Murithi never met Louch nor did he request cleaning supplies
from Louch. Id. ¶ 18; MSOF ¶ 18.
II.
Ventilation and Mold
Murithi claims that the cells in which he was housed at Stateville in both F house and B
house had inadequate ventilation. F house is a round building, separate from the other cell houses
at Stateville, with cells around the outside of the building and a window in each cell. DSOF
¶¶ 10, 26. Murithi had a fan in each of the three cells in which he was housed in F house that he
could use to circulate air. DSOF ¶ 26. F house also had exhaust fans and large commercial
pedestal fans in the common area of the cell house. Id. ¶ 27. An air handler provided ventilation
in F house, and its filters were regularly replaced. Id.
B house is part of a building divided into four separate cell houses (B, C, D, and E
houses). Id. ¶ 9. It has five galleries, or floors, with cells along one side of the building and
4
Murithi asserts that cleaning supplies were never available upon request in F house and
that they began to be passed out in B house once every two weeks a few months before he left B
house. MSOF ¶¶ 13-14. The defendants assert that Hardy established a schedule for cleaning
supplies to be distributed in the cell houses and that between 2009 and 2012, cleaning supplies
were available to inmates in F house and B house upon request and also made available by
security on a weekly basis by security staff. DSOF ¶¶ 13, 16.
4
windows facing the cells running along the opposite wall. Id.; D Ex. B 84:16-19. Some of those
windows open to allow air to circulate in B house, and those windows are usually open during
the summer. DSOF ¶ 28. The front of the cells in B house are bars, with nothing to prevent air
from flowing between the cells and the common area. Id. Although there were a number of fans
in the common area of B house, the fan five feet outside of Murithi’s cell did not function. Id.
Murithi and his cellmate in B house each had a fan in their cell to circulate air. Id. The cells in B
house have a return air vent; the parties dispute whether these vents are regularly cleaned. DSOF
¶ 29; MSOF ¶¶ 29, 91. Murithi testified that the vent in his cell was covered with a thick layer of
dirt and dust and that, although he attempted to clean the vent, he was unable to because of the
grate covering the vent. MSOF ¶ 91.
Murithi complained to Hardy about air quality while Hardy was doing his rounds in B
house. DSOF ¶ 31. Murithi testified that he wrote approximately ten notes called “kites” to
Louch mentioning his concerns with air quality. DSOF ¶ 32. Hardy and Louch testified that they
are not aware of any staff or inmate illnesses resulting from the air quality at Stateville. DSOF
¶¶ 31-32.
Murithi testified that he overheard officers complaining about black mold in the
Healthcare Unit at Stateville. DSOF ¶ 20. He also testified that he saw a black spongey substance
in the back of his cell that he believed was black mold. MSOF ¶ 106. Murithi testified that he
wrote three or four kites to Louch about the black substance in his cell and spoke to Hardy once
or twice about the substance as Hardy made his rounds in B house. Id. Hardy responded that he
would look into it. DSOF ¶ 22; D Ex. A 32:16–33:21, ECF No. 84-1. Murithi also mentioned
mold in his cell in one of his grievances. See M Ex. J IDOC 1323, ECF No. 91. When an
offender filed a grievance about potential mold in his cell, the IDOC procedure was as follows:
5
contact maintenance, have maintenance inspect the area to determine if there is a possibility of
mold, and if so, contact Mark Gerdes (IDOC’s environmental liaison) to further look into the
issue. MSOF ¶ 107. To the best of Murithi’s knowledge, the substance in his cell was never
tested. MSOF ¶ 106.
Murithi never tried to clean the black substance in case it was black mold because he
heard “a rumor that if you mess with it you will get sick.” D Ex. A 31:13-18. When asked how
he knew mold was dangerous to his health, Murithi stated that he took it seriously because he
overheard officers complaining about mold, but he could not identify any symptoms of exposure
to black mold. Id. 32:1-15. Hardy testified that he did not recall any instances of mold at
Stateville between 2009 and 2012. DSOF ¶ 22. Louch also testified that he could not remember
any mold issues, but if there were, safety and sanitation personnel, not anyone under his
direction, would be responsible for looking into it. D Ex. C 25:18–27:9.
III.
Birds, Mice, and Other Pests
Murithi observed birds, mice, cockroaches, spiders, ants, mosquitos, flies, gnats, and
moths in the Stateville facility. DSOF ¶ 37. He testified regarding the frequency with which he
observed these pests: he saw approximately ten to fifteen birds and ten to fifteen mice during his
incarceration at Stateville; he saw cockroaches every day in both cell houses (although the
cockroach situation in F house was worse than B house initially, the situation had improved
somewhat by the time Murithi returned to F house, see M Ex. J ¶ 15); he saw spiders, ants, gnats,
and moths once a month; and he saw flies and mosquitoes regularly in the summer months. D
Ex. A 50:23–51:23, 55:14–61:6. Murithi complained to Hardy about the pests at some point
during the three conversations he had with Hardy and testified that he wrote between five and ten
letters to Louch about the pests. DSOF ¶¶ 46, 48. Staff also complained about the presence of
6
cockroaches at Stateville. MSOF ¶ 97. Hardy and Louch were aware of the presence of birds,
mice, and cockroaches at Stateville. DSOF ¶ 39.
Murithi saw a number of birds in both B and F house; there was a bird’s nest in the nonfunctioning fan outside of his cell in B house. DSOF ¶ 34. Inmate workers cleaned the bird
excrement in the common areas, but Murithi alleges that much of the excrement remained after
the cleaning and that when the inmate workers buffed the floors, they scattered the excrement
around and made it airborne. DSOF ¶ 35; MSOF ¶ 35. If Murithi found any bird excrement in his
cell, he cleaned it up himself. DSOF ¶ 35. Hardy testified that he developed a schedule to power
wash areas of the cell house where birds congregated in response to complaints about bird
excrement. DSOF ¶ 45. Murithi disputes that the power washing reached all of the affected areas
and disputes the effectiveness of the power washing at removing bird excrement. MSOF ¶ 35.
The State of Illinois has a contract with an extermination company, Critter Ridder, which
includes extermination services at Stateville. DSOF ¶ 40. Critter Ridder sprays the common area
of the cell houses at Stateville once per month. Id. Hardy testified that he received numerous
complaints about Critter Ridder’s performance when he first arrived at Stateville, including
complaints from staff members that cockroaches persisted after Critter Ridder sprayed the area.
DSOF ¶ 41. Hardy learned that there was a problem with the stock chemical Critter Ridder was
using (it used expired product for approximately six months because IDOC had not paid Critter
Ridder as required under the contract) and worked with the company to change the chemical. Id.;
MSOF ¶ 99. In response to increased complaints of pests in the individual cells, particularly in F
house, Hardy testified that he developed a schedule for Critter Ridder to spray within the cells.
DSOF ¶ 41; D Ex. B 57:22–60:13. The parties dispute the frequency with which the individual
cell spraying occurred. See DSOF ¶¶ 41-42; MSOF ¶¶ 41-42. Hardy testified that the
7
exterminator sprayed within individual cells in F house approximately once per month (he could
not recall whether individual cells in B house were sprayed). DSOF ¶¶ 41-42. Murithi cites to the
Critter Ridder sign-in sheets, which indicate that Critter Ridder sprayed the individual cells in F
house four times between July 2010 and May 2013 and sprayed the individual cells in B house
once.5 See MSOF ¶¶ 41-42, Ex. P IDOC 626, 629, 631, 649, 664, 687, ECF No. 87-12.
To address issues with mice, Hardy asked Critter Ridder for additional glue traps for the
common areas of the facility. DSOF ¶ 44. Hardy testified that inmates were not permitted to have
glue traps in their cells for security reasons. D Ex. B 56:11-19.
IV.
Murithi’s Health Problems
Murithi testified that he experienced health problems while incarcerated at Stateville,
including stomach problems, breathing problems, racing heart rate, chest pains, and skin
irritation (i.e.—bumps on his skin). DSOF ¶ 78. During his almost-four-year stay at Stateville,
Murithi sought and saw a doctor for these complaints only twice. Id. The doctor conducted tests,
which came back normal. Id. The doctor did not prescribe any medication for these complaints
or diagnose Murithi with any medical conditions.6 Id.
Murithi alleges that that the conditions at Stateville about which he is complaining caused
these health problems. M Ex. J ¶ 18. He does not attempt to link any specific condition to a
specific health problem but rather generally asserts that the conditions of confinement caused the
aforementioned health problems. See, e.g., D Ex. A. 32:9-12. In his deposition, Murithi testified
5
Murithi states that the exterminator never sprayed in the individual cells in B house,
citing to the Critter Ridder sign-in sheets. See MSOF ¶ 98. From this Court’s review of the signin sheets, it appears that the exterminator sprayed in the individual cells in B house on December
13, 2012. See M Ex. P IDOC 687.
6
Murithi does not dispute the factual accuracy of these statements but disputes the
adequacy of the medical care he received at Stateville. MSOF ¶ 78. This lawsuit, however, does
not contain a claim pertaining to the quality of medical care he received.
8
that no doctor ever told him that any of the conditions at Statesville affected his health in any
way. See D Ex. A 24:13-16, 32:1-15, 47:22–48:3, 55:2-8, 56:3-8, 57:13-15, 58:3-17, 59:11-13,
60:4-18, 61:11-13. Murithi also testified that he did not believe he “ever got bit by anything”
while incarcerated at Stateville. Id. 60:21-22, 62:2-5. Murithi testified that his health problems
subsided when he was transferred out of Stateville and into Pontiac Correctional Center and that
the conditions with respect to vermin were much better at Pontiac as compared to Stateville.
MSOF ¶ 112.
Murithi alleges that he experienced “significant anxiety and emotional distress” as a
result of the conditions of confinement at Stateville. MSOF ¶ 111. The sole example Murithi
offers of this distress is that he had trouble sleeping because he was concerned that roaches
would crawl on him and in his mouth and ears while he was sleeping. Id. Murithi does not claim,
however, that this ever happened. During his deposition, moreover, Murithi testified that he slept
approximately six hours per day while in B house and eight to ten hours per day while in F
house. D Ex. A 71:20-22, 72:4-5. Murithi never saw a doctor regarding a lack of sleep or for any
health concerns related to sleeping. Id. 72:20–73:4.
Murithi spoke to Hardy about all of these conditions at some point during the three
conversations he had while Hardy made rounds in B House. MSOF ¶ 82. Murithi testified that he
sent a number of kites to Louch about these conditions, as well. Id. ¶ 83. He also filed grievances
about these conditions-of-confinement issues. M Ex. J. The defendants have not asserted that
Murithi failed to exhaust his administrative remedies.
Murithi filed this lawsuit in February 2013 alleging unconstitutional conditions of
confinement, including unsanitary cell conditions, lack of access to cleaning supplies, the
presence of black mold, inadequate ventilation/poor air quality, and various pest infestations.
9
Compl., ECF No. 1. He also asserts claims based on bright lighting, water quality, lead paint, and
overcrowding.7 Murithi alleges that defendants Hardy and Louch were aware of and deliberately
indifferent to these conditions and seeks monetary damages and injunctive relief. Hardy and
Louch filed the instant motion for summary judgment.
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); Jajeh v. County of Cook, 678 F.3d 560, 566 (7th Cir. 2012). When considering a motion
for summary judgment, the Court construes the facts and makes all reasonable inferences in
favor of the non-moving party. Jajeh, 678 F.3d at 566. “[D]istrict courts presiding over summary
judgment proceedings may not weigh conflicting evidence, . . . or make credibility
determinations.” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011)
(internal quotation marks and citation omitted). Rather, the Court’s role is “to determine whether
there is a genuine issue for trial.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
Incarcerated persons are entitled to confinement under “humane conditions that satisfy
‘basic human needs.’” Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 664 (7th
Cir. 2012) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). The Eighth Amendment
imposes a duty on “prison officials [to] ensure that inmates receive adequate food, clothing,
shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison conditions,
however, “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
7
Because Murithi failed to respond to arguments based on these claims and has therefore
waived these claims, the Court need not discuss the facts surrounding these particular
complaints. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010).
10
Cir. 1997) (citing Farmer, 511 U.S. at 833-34); see also Rhodes v. Chapman, 452 U.S. 337, 349
(1981) (“the Constitution does not mandate comfortable prisons”). A claim of constitutionally
inadequate confinement requires a two-step analysis: (1) “whether the conditions at issue were
sufficiently serious so that a prison official’s act or omission result[ed] in the denial of the
minimal civilized measure of life’s necessities”; and (2) “whether prison officials acted with
deliberate indifference to the conditions in question.” Townsend v. Fuchs, 522 F.3d 765, 773 (7th
Cir. 2008) (internal quotation marks and citation 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. Mere negligence is insufficient
to constitute deliberate indifference. Eddmonds v. Walker, 317 F. App’x 556, 558 (7th Cir.
2009). Moreover, even if a prison official is aware of a substantial risk of serious injury to an
inmate, “he is free from liability if he responded to the situation in a reasonable manner.” Id.
(quoting Fisher v. Lovejoy, 414 F.3d 659, 664 (7th Cir. 2005)); see also Farmer, 511 U.S. at 847.
I.
Waived Claims
In his complaint, Murithi asserts claims based on bright lighting, water quality, lead
paint, and overcrowding. In his response to the motion for summary judgment, however, Murithi
makes no argument on these claims. So, too, with respect to his request for injunctive relief;
Murithi failed to respond to the defendants’ arguments regarding the availability of injunctive
relief. As such, he has waived these claims, see Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th
Cir. 2010), and the motion for summary judgment is granted as to these claims.8
8
In any event, having been transferred from Stateville, Murithi’s claim for injunctive
relief applicable to the Stateville facility is moot.
11
II.
Unhygienic Conditions and Access to Cleaning Supplies
Murithi claims that the conditions at Stateville were “highly unsanitary” and that such
conditions, combined with the denials of his requests for cleaning supplies, constituted a
sufficiently serious condition in satisfaction of the first prong of the two-step analysis. Resp. 12,
ECF No. 86. The defendants argue that cleaning supplies are a luxury, not a necessity of life and,
therefore, Murithi does not have a constitutional right to cleaning supplies in his cell. Mem. in
Supp. 9, ECF No. 83. They argue that even if he did have such a right, Murithi’s admission that
he was able to clean his cell twice per week using towels and shampoo from commissary defeats
a showing of the objective seriousness of the conditions.
Under certain factual circumstances—i.e. confinement, even for a short period of time, in
the presence of human waste or blood—unhygienic conditions and lack of access to cleaning
supplies has constituted the basis of a conditions-of-confinement claim. See Vinning–El v. Long,
482 F.3d 923, 924-25 (7th Cir. 2007) (reversing summary judgment where prisoner was held for
six days without sanitation items in cell contaminated with human waste and blood with nonfunctioning sink and toilet); Johnson v. Pelker, 891 F.2d 136, 139-40 (7th Cir. 1989) (reversing
summary judgment where prisoner was denied cleaning supplies and confined for three days to
cell that was smeared with human waste and lacked running water). Here, Murithi complains of
dust, dirt, and bird excrement in the common area of Stateville (he cleaned any excrement that
made its way into his cell); this does not compare with the extremely unsanitary conditions in
Vinning-El and Johnson, involving contamination with human waste and blood and nonfunctioning plumbing. Moreover, Murithi admits that he was able to clean his cell twice per
week using towels and shampoo he purchased from commissary, and he admits that cleaning
supplies became available towards the end of his stay in B house that he used to clean his cell
12
between ten to fifteen times. Thus, although it is hard to understand why a prison staff would not
readily facilitate the efforts of prisoners who seek to clean their cells (indeed, one might expect
regular cleaning to be a requirement), Murithi’s claim that the defendants did not supply
adequate cleaning supplies does not amount to a constitutional violation. See Allen v. Hardy, No
11 C 4147, 2012 WL 5363415, at *5 (N.D. Ill. Oct. 26, 2012) (lack of cleaning supplies did not
result in constitutional violation because plaintiff was able to receive cleaning supplies without
incident for the last year and was always able to clean cell with soap and personal towel);
Sanchez v. Walker, No. 09 C 2289, 2010 WL 5313815, at * 9 (N.D. Ill. Dec. 17, 2010) (lack of
cleaning supplies did not result in constitutional violation because plaintiff could have used
available water and clothing to clean his cell).
The motion for summary judgment is granted as to this claim.9
III.
Mold and Ventilation
Murithi believes that the black substance he saw in the back of his cell was black mold,
and he voiced concern about the potential mold on a number of occasions. Hardy acknowledged
the proper procedure when confronted with potential mold: contact maintenance to assess the
situation and then contact the environmental liaison if necessary. According to the evidence in
the record, this policy was not followed; there is no evidence of maintenance ever examining or
testing the substance in Murithi’s cell. Therefore, it is impossible to know whether or not the
black spongey substance was actually black mold.
Regardless, Murithi has failed to demonstrate that the alleged mold caused him any harm.
His subjective belief that any one, or a combination, of the conditions at Stateville may have
9
Murithi’s claim against Louch based on unsanitary conditions and lack of cleaning
supplies also fails because it is undisputed that Louch was not involved with cleaning and
sanitation at Stateville. See DSOF ¶ 19; see also DSOF ¶ 18 (Murithi never asked Louch for
cleaning supplies).
13
caused any one of a number of health problems does not create a genuine dispute of fact. Indeed,
the medical tests conducted in response to his complaints returned normal results. The rumor
Murithi heard, “if you mess with [mold] you will get sick,” is insufficient to create a triable
issue. D Ex. A 31:13-18. “‘[C]onclusory allegations, without backing from medical or scientific
sources, that [the plaintiff was exposed] to diseases and . . . problems which he would not
otherwise have suffered’ are insufficient to survive summary judgment.” Mejia v. McCann, No.
08 C 4534, 2010 WL 5149273, at *7 (N.D. Ill. Dec. 10, 2010) (quoting Dixon v. Godinez, 114
F.3d 640, 645 (7th Cir. 1997)) (brackets in original). Murithi has not claimed that he suffered any
psychological distress over the presence of the alleged mold nor is there prospect of future harm
as he no longer resides at Stateville. See Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012)
(identifying three different types of harm in the context of a pest infestation—physical harm,
psychological harm, and probabilistic harm). Murithi has failed to demonstrate that the presence
of the suspect mold is an objectively serious condition that violates the Eighth Amendment.
The same is true with respect to Murithi’s claims of inadequate ventilation. The dusty
vent in his cell, when considered in conjunction with his access to windows for fresh air and
personal fans for air circulation, is not an objectively serious condition that falls below “the
minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 833-34.
The defendants’ motion for summary judgment is granted as to these claims.
IV.
Birds, Mice, and Other Pests
Murithi asserts that the constant presence of cockroaches and the regular incidence of
birds, mice, and assorted insects constitute cruel and unusual punishment. The Seventh Circuit
has held that “a prolonged pest infestation, specifically a significant infestation of cockroaches
and mice, may be considered a deprivation sufficient to constitute a [constitutional] violation.”
14
Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (citing Antonelli v. Sheahan, 81 F.3d 1422,
1431 (7th Cir. 1996)). As an initial matter, Murithi’s allegations about the incidence of pests
other than cockroaches do not rise to the level of significant infestation. Over the course of
nearly four years, Murithi saw approximately ten to fifteen birds and mice and only saw the
occasional spider, ant, gnat, moth, fly, and mosquito. See D Ex. A 50:23–51:23, 55:14–61:6. An
occasional insect and a dozen or so mice and birds over a four-year period do not a significant
infestation make. Compare Antonelli, 81 F.3d at 1431 (serious infestation where cockroaches
and mice were “everywhere,” “crawling on [plaintiff’s] body” and “‘constantly awaken[ing]’
him”); White v. Monahan, No. 07 C 437, 2013 WL 587511, at *2 (N.D. Ill. Feb. 14, 2013) (such
pervasive insect presence that plaintiff was bitten all but nine weeks out of six-year incarceration
and sought medical attention for insect bites on ten occasions).
For a successful Eighth Amendment claim based on pest infestation, moreover, the
plaintiff must prove some type of harm: “physical injury is not the only type of injury actionable
in a prisoner’s civil rights suit . . . A second is psychological harm. And a third, . . . is hazard, or
probabilistic harm—‘loss of a chance,’ as it is called.” Thomas, 697 F.3d at 614-15. Murithi has
claimed psychological and physical harm: he stated that he “experienced significant anxiety and
emotional distress,” which manifested as trouble sleeping, M Ex. J ¶ 20, and that he suffered
from stomach problems, breathing problems, racing heart rate, chest pains, and skin irritation.
The only evidence in the record of Murithi’s emotional distress, however, is the statement in his
affidavit that he had trouble sleeping “because he was very concerned that roaches would be
crawling on him . . . .” M Ex. J ¶ 20. He testified, however, that he slept approximately six hours
per day while in B house and eight to ten hours per day while in F house. D Ex. A at 71:20-22,
72:4-5. Notably, and inconsistently, Murithi claims to have slept more in F house, where he
15
claims that the cockroach infestation was more severe. There is no evidence of record, moreover,
that Murithi ever reported to medical staff any emotional or anxiety problems. No trier of fact
could “reasonably conclude that [Murithi] had been subjected to harm”—i.e. an insufficient
amount of sleep—“sufficient to support a claim of cruel and unusual punishment.” Thomas, 697
F.3d at 614.
As to his claim of physical harm, Murithi is unable to specifically link any health
problems to the pests and affirmatively testified that he was never bitten by anything while at
Stateville. See D Ex. A 60:21-22, 62:2-5. When Murithi saw a doctor for these complaints, the
test results came back normal; there is, therefore, no medical evidence linking his physical
complaints to pest infestation (or any of the other problems about which Murithi complains). His
argument that the conditions at Stateville caused his health problems is solely based on timing;
Murithi states that these problems subsided when he transferred out of Stateville and into Pontiac
Correctional Center. MSOF ¶ 112. Although Murithi, as the non-movant, is entitled to all
reasonable inferences in his favor, timing alone is an insufficient basis from which to infer
causation at the summary judgment stage. Cf. Nehan v. Tootsie Roll Indus., Inc., 621 F. App’x
847, 852 (7th Cir. 2015) (“timing alone rarely creates a fact issue [at the summary judgment
stage]” in a retaliation context); Holyfield-Cooper v. Bd. of Educ. of the City of Chicago, 604 F.
App’x 504, 508 (7th Cir. 2015) (“suspicious timing alone is not enough to support a finding of
causation” in a retaliation context). Simply put, Murithi offers no evidence indicating that the
pests, as opposed to some other unidentified problem or condition, caused his stomach problems,
breathing problems, racing heart rate, chest pains, and skin irritation. “Any inferences [Murithi]
asks us to draw . . . are based on speculation and thus insufficient to withstand summary
judgment.” Hooper v. Proctor Health Care Inc., 804 F.3d 846, 855 (7th Cir. 2015). “Speculation
16
does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is
a primary goal of summary judgment.” Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th
Cir. 1995) (emphasis in original).
Even if the evidence were sufficient to infer that the pests caused Murithi’s health
problems, the evidence does not establish that the defendants were deliberately indifferent to the
pest situation. An extermination company sprayed the prison monthly, and in response to
additional complaints, Hardy investigated the cause of the exterminator’s ineffectiveness,
remedied it, and initiated spraying within individual cells. Murithi concedes, moreover, that the
situation improved over time, at least in F house. Although the parties disagree as to the
frequency of the additional spraying, that Hardy attended to the increased complaints by
implementing individual cell extermination services with any regularity evidences a reasonable
response. “Although an only-occasional extermination does not, by itself, necessarily negate a
showing of deliberate indifference, the policy of ‘frequent’ exterminations ‘certainly cannot
support a claim of deliberate indifference.’” Mejia, 2010 WL 5149273, at *11 (quoting Sain, 512
F.3d at 895) (internal citation omitted); see also Chavis v. Fairman, 51 F.3d 275 (7th Cir. 1995)
(unpublished opinion) (“Courts have routinely recognized that [k]eeping vermin under control in
jails, prisons and other large institutions is a monumental task, and that failure to do so, without
any suggestion that it reflects deliberate and reckless conduct in the criminal law sense, is not a
constitutional violation.” (internal quotation marks omitted)). Hardy also actively responded to
complaints of bird excrement by developing a schedule to power wash areas where birds
congregated. That Hardy could have “done more,” Resp. 13, to control pests at the facility, as
17
Murithi argues, does not establish that he was deliberately indifferent to the problem. Plainly he
was not.10
In short, while pest infestations can rise to the level of a constitutional violation, Murithi
has failed to establish a triable issue of fact as to whether the defendants violated his right to be
free from cruel and unusual punishment by deliberately failing to address the pest infestation
problems at Stateville. See, e.g., Smith v. Dart, 803 F.3d 304, 312 (7th Cir. 2015) (affirming
dismissal of pest-infestation claim that alleged “[s]piders, rats, roaches, centerpides [sic], flys,
gnats and beetles are on the tier[,] also there are nests of spiders under the radiators[,] roaches
and gnats make their home in the showers and toilet area.”); Gray v. Hardy, No. 11 C 7097, 2013
WL 5433280, at *5 (N.D. Ill. Sept. 30, 2013) (“The existence of pests and birds does not
establish an objectively serious condition, particularly where, as here, the prison actively seeks to
prevent their presence); Moore v. Monahan, No. 06 C 6088, 2009 WL 310963, at *7 (N.D. Ill.
Feb. 9, 2009) (over five months of exposure to insects, during which inmate was never bitten, did
not amount to a constitutional violation). Though undoubtedly unpleasant, his experience in this
regard does not rise to the level of infestation claims that have supported findings of
constitutional violation. Compare, e.g., White v. Monohan, 326 F. App’x 385, 388 (7th Cir.
2009) (describing as a “close call” whether plaintiff’s five-year exposure to roaches, mice, bees,
and wasps that stung and bit detainee leaving scars on his legs, arms, and back, stated a claim of
unconstitutional condition of confinement); Antonelli, 81 F.3d at 1431 (allegation that roaches
and mice were rampant and crawling on inmate’s body, and that inmate had suffered significant
10
Nor was Louch: the undisputed evidence shows that Louch was not responsible for pest
control at Stateville. DSOF ¶ 49. Murithi’s claim against Louch with respect to the pest situation,
therefore, must be dismissed.
18
physical injury, stated a claim for unconstitutional conditions of confinement, particularly where
the jail had sprayed only twice during a 16–month period).
V.
Combination of Conditions
Murithi last claims that, even if none of these conditions, individually, is sufficient to
violate the Eighth Amendment, the combination of conditions are objectively serious. See Gillis
v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) (“Some conditions of confinement may establish
an Eighth Amendment violation in combination when each alone would not do so.”). A
combined-conditions violation is possible “when the deprivations have a mutually enforcing
effect which produces the deprivation of a single, identifiable human need, such as food or
warmth . . . .” Id. Murithi’s claims, viewed in isolation or combination, fall short of this mark. To
be sure, his claims describe unpleasant conditions, but those conditions did not deprive him of
basic human necessities, and he has adduced no evidence that that the defendants were
deliberately indifferent to them or that he was harmed by those conditions.11 The combination of
conditions, therefore, is no more violative of the Eighth Amendment than any of the conditions
individually.
11
It bears noting that the absence of physical harm, and the mooting of Murithi’s claim
for injunctive relief, would limit Murithi’s potential recovery to nominal damages and punitive
damages, even if Murithi had established actionable deliberate indifference to one or more of the
conditions about which he complains. See 42 U.S.C. § 1997e(e); Thomas v. Illinois, 697 F.3d
612, 614 (7th Cir. 2012).
19
*
*
*
Murithi has failed to demonstrate that the conditions of his confinement at Stateville were
objectively substandard, as required to make out a conditions-of-confinement claim. Because
there is no disputed issue for trial as to the constitutionality of the conditions of confinement
about which Murithi complains, the defendants’ motion for summary judgment is granted.
Dated: March 9, 2016
John J. Tharp, Jr.
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?