Armstrong v. Cook County, Illinois et al

Filing 174

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 9/2/2019: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies defendant Tylor's motion for summary judgment 138 , grants defendan t Jacobs-El's motion for summary judgment 134 , and partly grants and partly denies defendants Dart and Smith's motion for summary judgment 129 . In addition, the joint motion for extension of pretrial deadlines 172 is granted, and the hearing date of September 3, 2019 is vacated. The deadline for the first exchange with respect to the final pretrial order is extended to September 9, 2019, the date for the second exchange is extended to September 16, and the deadline for the parties to meet and confer and resolve differences is extended to September 18, 2019. The final pretrial order remains due on September 20, 2019. Motions in limine remain due on September 11, 2019, and responses remain due on September 18, 2019. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IAN ARMSTRONG,
Plaintiff,
vs.
SHERIFF THOMAS DART;
CARA SMITH, BILQIS JACOBS-EL,
and MICHAEL TYLOR,
Defendants.

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Case No. 16 C 9215

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Ian Armstrong says that he was forced to spend 109 days in a Cook County Jail
cell with a malfunctioning toilet that leaked feces and urine into his cell. He has sued
Cook County Sheriff Thomas Dart; Cara Smith, the Sheriff's Chief of Policy; Bilqis
Jacobs-El, the director of Cook County's Department of Facilities Management; and
Michael Tylor, a correctional rehabilitation worker (CRW) at the Jail. The defendants
have moved for summary judgment. For the reasons stated below, the Court grants
summary judgment in favor of Jacobs-El and also partially in favor of Dart and Smith but
otherwise denies defendants' motions.
Facts
The relevant facts are as follows; the Court takes them in the light most favorable
to Armstrong, the non-moving party. Armstrong was confined in a cell in Division 10 of
the Jail starting on May 15, 2016. Even before that, this particular cell had a problem

with leaks and with the toilet backing up. Whenever Armstrong or his cellmate Ardamis
Sims flushed the toilet, or nearby inmates flushed theirs, the toilet in Armstrong's cell
would back up and leak feces, urine, and toilet water. At times when Armstrong got out
of his top bunk bed, he would step into feces and urine that was standing on the floor.
Armstrong says he tried to file grievances about the unsanitary conditions in his
cell on five separate occasions starting in early June 2016. He contends that Tylor, who
was responsible for (among other things) processing grievances for Armstrong's tier,
refused to accept them, saying that Armstrong's cellmate had already filed a grievance
about the same conditions. Armstrong kept copies of the grievances he says Tylor
refused to accept. See Pl.'s Exs. 3-7. They are dated June 6, June 12, June 18, July 1,
and July 5, 2016. Armstrong also says that he told a number of correctional officers
about the problems with the toilet and about Tylor's refusal to accept the grievances,
and he says that they observed the back-up firsthand. Armstrong also says that he
reported the problem to correctional sergeants and lieutenants, as well as the divisional
superintendent. None of these personnel, he contends, did anything to move him to
another cell or remedy the problem.
Via discovery, Armstrong obtained records from the Sheriff and the Department
of Facilities Management reflecting over a dozen reports of toilet or plumbing problems
in the cell where Armstrong was housed. Records also would permit a finding that nine
correctional officers, two sergeants, and two lieutenants saw or received reports about
the broken toilet in Armstrong's cell over the relevant period.
Armstrong contends that the Sheriff routinely ignores its own written grievance
procedure, at least with regard to plumbing issues. There is evidence that would

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support a finding that under procedures established by the Sheriff, plumbing problems
in a cell are considered a potential emergency and that emergency grievances are to be
immediately delivered to the superintendent of the jail division in question or to a watch
commander (another high-ranking officer). There is also evidence that under the
Sheriff's established procedures, when a grievance covers an issue addressed by a
prior grievance, the CRW must nonetheless respond to the later grievance in writing.
But it does not appear that any of this happened in Armstrong's case. And Tylor's
testimony would permit a finding that he simply doesn't follow the latter procedure.
Despite Armstrong's attempts to get relief for the toilet backup as early as June 6,
2016, he remained in the cell for nearly three months after that. During this same
period, Armstrong says, he repeatedly requested cleaning supplies, without success.
There is evidence reflecting that a plumber with Facilities Management responded to
eight work orders regarding the cell and marked each one complete but never actually
solved the problem. Armstrong says that the plumber who came to his cell was also
verbally abusive.
Armstrong points to testimony from a Rule 30(b)(6) deposition witness for the
Sheriff to the effect that a cell should be closed for repairs—which would result in
moving prisoners out of the cell—whenever a toilet is clogged, overflowing, or not
working. Armstrong also points to testimony that even the plumber who came to his cell
thought the cell should have been closed before the end of June 2016. But despite the
claimed widespread awareness of the backed-up toilet in Armstrong's cell, the cell was
not closed until on or about September 1, more than three months after he or his
cellmate first put Sheriff's personnel on notice of the problem. After that, there is

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evidence that it took a month to fix the plumbing and install a new toilet, and even then
problems continued, Armstrong claims.
Discussion
During the relevant period of time, Armstrong was a pretrial detainee. This
means that the Fourth Amendment and a standard of objective reasonableness governs
his claims. See Miranda v. County of Lake, 900 F.3d 335, 351 (7th Cir. 2018); see also,
McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). A pretrial detainee's claim
regarding conditions of confinement differs from that of a convicted prisoner because
"pretrial detainees (unlike convicted prisoners) cannot be punished at all." Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2475 (2015). In bringing a conditions-of-confinement
claim, a pretrial detainee "can . . . prevail by showing that the actions are not 'rationally
related to a legitimate nonpunitive governmental purpose' or that the actions 'appear
excessive in relation to that purpose.'" Id. at 2473 (quoting Bell v. Wolfish, 441 U.S.
520, 561 (1979)). See Reed v. Bowen, 769 F. App'x 365, 369 (7th Cir. 2019).
1.

Claim against Tylor
A reasonable jury unquestionably could find that requiring Armstrong to live in a

cell with a backed-up, non-working toilet for the extended period he claims was
objectively unreasonable, as well as punitive. Cf. Vinning-El v. Long, 482 F.3d 923,
924-25 (7th Cir. 2007) (Eighth Amendment case). A reasonable jury could also find that
Tylor was responsible for Armstrong's continued exposure to this condition. First, the
evidence would permit a jury to find that Tylor ignored, refused to process, or refused to
even accept grievances from Armstrong regarding the backed-up toilet. Second, taking
the evidence in the light most favorable to Armstrong, a jury reasonably could find that

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Tylor's actions resulted in minimizing or concealing the fact that Armstrong remained
exposed to feces and sewage in his cell for an unusually extended period.
It is true, as Tylor notes, that the evidence shows that a plumber came to the cell
on multiple occasions during the relevant period. From this, Tylor asks the Court to
infer that his alleged inaction could not possibly have caused Armstrong's harm—
suggesting, without saying, that any continued exposure that Armstrong suffered should
be laid at the feet of the personnel who did not fix the problem or who failed to move
him. But this would require the Court to draw inferences in favor of Tylor—which the
Court cannot do on Tylor's summary judgment motion. A reasonable jury could find,
given Armstrong's testimony and other evidence tending to show that he tried to file
grievances something like every five days but was rebuffed, that if Tylor had processed
those grievances, responsible personnel within the Sheriff's office would have taken the
steps necessary to move Armstrong to a different cell until the backed-up toilet was
repaired once and for all. This is particularly so given the evidence that this was the
Sheriff's policy for cells with plumbing problems like the one in Armstrong's cell.
For these reasons, Tylor is not entitled to summary judgment.
2.

Monell claims against Dart, Smith, and Jacobs-El
The Court turns next to Armstrong's claims against Sheriff Dart, his chief of policy

Smith, and Facilities Management director Jacobs-El. There is no evidence that any of
these officials was personally involved in the alleged deprivation of Armstrong's rights.
Rather, Armstrong's claims against them are "official capacity" claims—effectively,
claims against the governmental entities involved—that arise under Monell v. New York
City Department of Social Services, 436 U.S. 658 (1978).

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To demonstrate liability under Monell, a plaintiff must establish three things: the
existence of an unconstitutional policy; the culpability of the governmental entity, "which
means the [entity's] policymakers were deliberately indifferent to a known or obvious
risk that a policy or custom would lead to constitutional violations"; and causation of the
deprivation of the plaintiff's constitutional rights. See, e.g., J.K.J. v. Polk County, 928
F.3d 576, 587-88 (7th Cir. 2019). The first of these elements, the existence of an
unconstitutional policy, can be satisfied by showing that there was an express policy
that, when enforced, caused a constitutional deprivation; there was a widespread
practice that, though not authorized by express policy, was so well-settled as to
constitute a custom or usage; or the constitutional injury was caused by a person with
final policymaking authority. Id. In addition, "in situations that call for procedures, rules
or regulations, the failure to make policy itself may be actionable." Glisson v. Ind. Dep't
of Corrs., 849 F.3d 372, 381 (7th Cir. 2017) (en banc) (quoting Sims v. Mulcahy, 902
F.2d 524, 543 (7th Cir. 1990); see also Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d
293, 202 (7th Cir. 2016).
In this case Armstrong does not cite other examples of actions or failings by
Facilities Management or Sheriff's personnel directed at detainees other than himself.
Defendants rely on this to argue that, as a result, Armstrong may not sustain any claims
under Monell. That is an overstatement. A plaintiff is not "foreclosed from pursuing
Section 1983 claims where she can demonstrate that repeated actions directed at [him]
truly evince the existence of a policy." Phelan v. Cook County, 463 F.3d 773, 789-90
(7th Cir. 2006). But the plaintiff "must demonstrate that there is a policy at issue rather
than a random event." Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir.

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2010). "This may take the form of an implicit policy or a gap in expressed policies, or a
series of violations to lay the premise of deliberate indifference." Id. (internal quotation
marks and citations omitted).
In considering Armstrong's claims, it is worth noting that personnel at the Jail
could have avoided the claimed violation of his constitutional rights in one of two ways.
The first was by promptly repairing the condition; the second was by moving Armstrong
out of the cell. Either would have been sufficient; neither was done.
a.

Jacobs-El

Starting with defendant Jacobs-El, Armstrong cannot maintain a Monell policy
claim involving Facilities Management's failure to promptly repair the condition in his
cell. As just indicated, the constitutional deprivation at issue involves a combination of a
broken and unrepaired toilet (or plumbing connected to the toilet) and Armstrong's
continued presence in the cell. Facilities Management had responsibility only for the
former. To be sure, this by itself does not absolve Facilities Management of
responsibility. But the only way it could resolve the problem was to repair the cell's
plumbing once and for all, as there is no evidence that Facilities Management had any
input into detainee cell assignments. The evidence reflects that a plumber or plumbers
were assigned on multiple occasions during the relevant period, but the problem did not
get fixed. That is not evidence that would support a finding that Facilities Management
had a policy or common practice of ignoring or delaying repairs of plumbing problems in
cells. 1 Rather, there is no basis for a finding that Facilities Management's failure to

Armstrong says that the plumber showed up "a week or two" after officers told him that
a work order had been or would be submitted. For purposes of a Monell claim involving
the practices of Facilities Management, the relevant interval would appear to be the time

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remedy the problem resulted from anything worse than negligence or incompetence on
the part of the individual plumber or plumbers involved. And on that point, Armstrong
has offered no evidence to support a finding that there was a widespread practice of
incompetence on the part of Facilities Management that led to constitutional violations.
For these reasons, defendant Jacobs-El is entitled to summary judgment on
Armstrong's Facilities Management-related Monell claim.
b.

Dart and Smith

With regard to the Sheriff and his chief of policy, Armstrong's primary contention
is that the Sheriff's office had a policy of refusing to accept grievances documenting
unconstitutional conditions of confinement. The evidence is insufficient to permit a
reasonable jury to find a widespread practice in this regard. Armstrong cites only the
five occasions on which Tylor refused to accept his grievances. Though there are some
situations in which actions vis-à-vis a single plaintiff can permit a finding of a policy
under Monell, this is not one of those situations. The evidence that Armstrong cites
reflects only misconduct by Tylor; there is nothing in this evidence that suggests a
broader practice. See Grieveson v. Anderson, 538 F.3d 763, 774–75 (7th Cir. 2008)
(four repeat incidents experienced by a single individual did not raise a triable issue
regarding the existence of a widespread unconstitutional government practice).
Anderson also contends that the evidence shows an unconstitutional policy on
the Sheriff's part of failing to close cells with backed-up or broken toilets—or, to put it
another way, failing to move inmates from such cells. Defendants argue that this

between when it received a work order and when it dispatched a plumber. But that
aside, in this case at least, a single instance of undue delay does not permit a
reasonable inference of a widespread practice. See Thomas, 604 F.3d at 303.
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claimed policy was not identified in Armstrong's complaint. That is true, but a court may
permit amendment of a pleading, even as late as trial, and a "court should freely permit
[such] an amendment when doing so will aid in presenting the merits and the objecting
party fails to satisfy the court that the evidence would prejudice that party's action or
defense on the merits." Fed. R. Civ. P. 15(b)(1). The first of the two parts of this test is
plainly satisfied here; as the Court has indicated, the core of the problem underlying
Armstrong's lawsuit is that he was left in a cell with backed-up plumbing, and a key
question is why. On the second part of the test, though defendants argue an inability to
obtain evidence regarding a separate unalleged policy—concerning the failure to
provide cleaning supplies to detainees, see Dart/Smith Reply at 5-6—they do not
suggest any such problem with regard to the failure-to-move claim. Unlike the cleaning
supplies contention, which involves unidentified correctional personnel who allegedly
refused Armstrong access to cleaning supplies for his cell, the failure-to-move
contention does not appear to involve any unidentified persons, and it is fair to assume
that all of the evidence regarding why Armstrong was not moved is already in the
Sheriff's hands. And defendants still have significant time before trial to marshal
whatever evidence they may need to offer on this point. For these reasons, the Court
will permit Armstrong to pursue this theory of Monell liability. 2
The evidence is sufficient to permit a reasonable jury to find in Armstrong's favor
on this theory of liability. Armstrong again cites only evidence relating to his own (and
his cellmate's) situation, but here it is sufficient to clear the summary judgment hurdle.

If defendants contend they need more time and can show this promptly, they may ask
the Court for a continuance under the last sentence of Rule 15(b)(1).
2

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Specifically, unlike his other claims, the evidence does not simply involve a single CRW
who would not accept grievances or a single plumber (or two or three) who could not fix
a problem. Rather, Armstrong cites evidence that would permit a reasonable jury to find
that a dozen or more correctional personnel, including some in higher ranks, were
directly aware of the condition in his cell over an extended period but that none of them
took any steps to get him moved out. The breadth of this evidence is sufficient to permit
a reasonable jury to find that Armstrong was left in the cell not due to a random or
isolated event but rather due to a widespread practice of inattention or indifference to
unconstitutional conditions of confinement of this sort. A reasonable jury likewise could
find in Armstrong's favor on the remaining elements of liability under Monell. 3 Dart and
Smith are not entitled to summary judgment on this particular Monell claim.
The Court is constrained to note that there are some arguable inconsistencies
between Armstrong's claim against Tylor and his remaining claim against Dart and
Smith. Specifically, the premise of the claim against Tylor is that if he had accepted and
processed Armstrong's grievances in the manner required, they would have caught the
attention of the appropriate personnel and would have led to Armstrong being promptly
moved if the condition could not be remedied quickly. By contrast, the premise of
Armstrong's Monell claim against Dart and Smith is that despite awareness of the
condition by multiple correctional personnel, including higher-ups, there was a practice
of ignoring such problems and leaving the affected detainees in place. But the law does
not preclude a party from pleading and pursing inconsistent claims or theories, see,

Armstrong's evidence on the claimed policy of failing to provide cleaning supplies is
much narrower, as it does not involve anywhere near as many Sheriff's personnel, and
as a result it is insufficient to permit a reasonable jury to clear the first Monell hurdle.
3

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e.g., Fed. R. Civ. P. 8(d)(3), and questions of trial strategy are best left to parties and
their counsel.
Conclusion
For the reasons stated above, the Court denies defendant Tylor's motion for
summary judgment [138], grants defendant Jacobs-El's motion for summary judgment
[134], and partly grants and partly denies defendants Dart and Smith's motion for
summary judgment [129]. In addition, the joint motion for extension of pretrial deadlines
[172] is granted, and the hearing date of September 3, 2019 is vacated. The deadline
for the first exchange with respect to the final pretrial order is extended to September 9,
2019, the date for the second exchange is extended to September 16, and the deadline
for the parties to meet and confer and resolve differences is extended to September 18,
2019. The final pretrial order remains due on September 20, 2019. Motions in limine
remain due on September 11, 2019, and responses remain due on September 18,
2019.
Date: September 2, 2019
________________________________
MATTHEW F. KENNELLY
United States District Judge

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