Jackson v. Vasquez et al

Filing 66

OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court grants in part and denies in part Defendants' motion for summary judgment 49 . The Court grants Defendants' motion on Jackson's due process claim and denies Defendants' motion on his Eighth Amendment claim. Signed by the Honorable Sara L. Ellis on 1/18/2023:Mailed notice(rj, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ABRE JACKSON (M36475),
Plaintiff,
v.
DAVE VASQUEZ, et al.,
Defendants.

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No. 20 C 6004
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Abre Jackson, an inmate currently incarcerated at Pontiac Correctional Center
(“Pontiac”), brings this action pursuant to 42 U.S.C § 1983 alleging violations of the Eighth
Amendment against Defendants Marc Anastacio, Laith Elhaj, and Shadi Awad (the “Stateville
Defendants”), and his due process rights against Defendants Travis Bantista, Jesus Madrigal, and
Leonta Jackson (the “Pontiac Defendants”). Defendants move for summary judgment on the
merits of Jackson’s Eighth Amendment claim against Awad and his due process claim against
the Pontiac Defendants. As to all asserted claims, Defendants argue that qualified immunity
shields them from liability. Because disputed questions of material fact exist regarding the
Stateville Defendants’ use of force and Awad’s opportunity to intervene, Jackson’s Eighth
Amendment claim survives. However, because Jackson has not established a liberty interest
sufficient to trigger due process protections, the Court grants Defendants’ motion for summary
judgment on his due process claim.

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BACKGROUND 1
Before his incarceration at Pontiac, Jackson resided at Stateville Correctional Center
(“Stateville”). While at Stateville, on February 25, 2020, Jackson had an encounter with Officer
Penrod and the Stateville Defendants. Penrod approached Jackson’s cell to close its chuckhole
door, a small opening on the door to the cell. Jackson could fit both of his arms, but no other
parts of his body, through the door. As Penrod reached for the chuckhole door, Jackson placed
one of his arms through it. Elhaj thereafter approached the cell and attempted to help Penrod
close the chuckhole door. Jackson testified that an officer grabbed his arms and banged them
against the cell door and that Elhaj forcefully bent his middle finger. Video footage depicts
Elhaj grabbing Jackson’s arm to get it back into his cell, but Penrod’s body obscures most of the
rest of the parties’ interaction. A few seconds later, Anastacio approached the cell, shaking a
chemical agent in his right hand. Jackson asserts that Anastacio ground the spray canister into
Jackson’s hand; the video neither conclusively establishes nor refutes this. Around 30 seconds
after that, Awad approached the cell door and began speaking to the officers. Jackson recalls
that Awad alerted the other officers to the presence of a camera and told them to stop. Awad
never touched Jackson. Moments later, Jackson broke free of the officers’ grasps, after which
Anastacio discharged a chemical agent into Jackson’s cell. Jackson states that Anastacio
continued spraying the chemical agent at Jackson after he retreated completely into his cell.
Defendants dispute this, but the video does not conclusively resolve the dispute. The entire
interaction lasted just over one minute; after that, Penrod secured the chuckhole door. Jackson

The Court derives the facts in this section from the parties’ Joint Statement of Undisputed Material Facts
and exhibits attached thereto. The Court has considered Jackson’s additional facts and supporting
exhibits and included in this background section only those portions relevant to resolution of the pending
motion that Jackson appropriately presented and supported. The Court takes all facts in the light most
favorable to Jackson, the non-movant.
1

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avers that he received medical attention at Stateville before being transferred to Pontiac for
unknown reasons. Jackson also received medical attention upon arrival at Pontiac.
As a result of the February 25th incident, Anastacio issued Jackson a disciplinary ticket
for a major infraction. On March 13, 2020, Jackson attended an adjustment committee hearing at
Pontiac in connection with the ticket. The hearing committee, consisting of Defendants Bantista
and Madrigal (the “Hearing Committee”), permitted Jackson to ask questions and tell his side of
the story. Jackson states that they precluded him from calling witnesses or viewing the video of
the incident. After the hearing, the Hearing Committee recommended disciplinary action and
provided reasoning for their decision. Jackson’s disciplinary requirements, as reflected by the
Hearing Committee’s final summary report, consisted of three months C grade status, 2 three
months segregation, revoke GCC or SGT (also known as good time credit) one month (later
reduced to zero), three months commissary restriction, three months audio/visual restriction, and
six months contact visits restriction. The Hearing Committee based their decision on the
observations of Anastacio and Elhaj. Leonta Jackson (“Leonta”) approved the Hearing
Committee’s determination.
On March 18, 2020 and April 13, 2020, Jackson filed his first and second grievances
related to the February 25th incident. Jackson did not mention his March 13th disciplinary
hearing in either grievance.
LEGAL STANDARD
Summary judgment obviates the need for a trial where “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). To determine whether a genuine dispute of material fact exists, the Court must pierce the
For an Illinois prisoner, “C” grade status “entails the loss of privileges (except yard access), restricted
commissary access, and only video-based visits.” Miller v. Maue, 759 F. App’x 515, 515–16 (7th Cir.
2019) (citing ILL. ADMIN. CODE tit. 20, § 504.130(a)(3)).
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pleadings and assess the proof as presented in depositions, documents, answers to
interrogatories, admissions, stipulations, and affidavits or declarations that are part of the record.
Fed. R. Civ. P. 56(c)(1); A.V. Consultants, Inc. v. Barnes, 978 F.2d 996, 999 (7th Cir. 1992).
The party seeking summary judgment bears the initial burden of demonstrating that no genuine
dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Bunn v. Fed.
Deposit Ins. Corp. for Valley Bank Ill., 908 F.3d 290, 295 (7th Cir. 2018). In response, the nonmoving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above
to identify specific material facts that demonstrate a genuine dispute for trial. Fed. R. Civ. P.
56(c)(1); Celotex, 477 U.S. at 324; Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627
(7th Cir. 2014). The Court must construe all facts in the light most favorable to the non-moving
party and draw all reasonable inferences in that party’s favor. Wehrle v. Cincinnati Ins. Co., 719
F.3d 840, 842 (7th Cir. 2013). However, a bare contention by the non-moving party that an issue
of fact exists does not create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th
Cir. 2000), and the non-moving party is “only entitled to the benefit of inferences supported by
admissible evidence, not those ‘supported by only speculation or conjecture,’” Grant v. Trs. of
Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017) (citation omitted).
ANALYSIS
I.

Eighth Amendment Claim
Jackson asserts that Elhaj and Anastacio violated his Eighth Amendment rights when

they used excessive force to injure his arm and finger and sprayed him with a chemical aerosol.
Jackson also asserts that Awad, who did not himself inflict any force, failed to intervene in
preventing the use of excessive force. Defendants do not challenge Jackson’s excessive force
claim on the merits against Elhaj and Anastacio; instead, they raise a qualified immunity defense,

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which the Court addresses infra. Defendants do challenge the claim as asserted against Awad
however and construe Jackson’s theory of liability as one alleging failure to protect. Defendants
move for summary judgment on the basis that Awad “did not act with deliberate indifference”
toward Jackson when he witnessed the incident, evidenced by the fact that Awad told the other
officers to stop. Doc. 50 at 4 (citing the standard for “an Eighth Amendment failure to protect
claim”).
Defendants misconstrue Jackson’s claim, which the Court instead interprets as an
allegation of failure to intervene—a theory of liability that allows a plaintiff to prove the liability
of an official who did not directly participate in the challenged wrong. See Watkins v. Ghosh,
No. 11 C 1880, 2014 WL 840949, at *3 (N.D. Ill. Mar. 4, 2014) (“The Seventh Circuit
acknowledges a ‘failure to intervene’ basis for a constitutional violation under the Eighth
Amendment.” (citing Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005)); Fields v. City of
Chicago, No. 10 C 1168, 2014 WL 477394, at *10 (N.D. Ill. Feb. 6, 2014) (“Failure to intervene
is not a claim for relief; rather, it is a theory of liability under section 1983, specifically, a way to
prove the liability of a state actor who was not a direct participant in the challenged
wrongdoing.”); cf. Kyles v. Beaugard, No. 15 C 8895, 2017 WL 2559038, at *4 (N.D. Ill. June
13, 2017) (considering a failure to protect claim where another inmate assaulted the plaintiff and
explaining that “[c]orrectional officials have a duty to protect inmates from violent assaults by
other inmates” (emphasis added)). A plaintiff may prevail against an officer who did not himself
infringe on the plaintiff’s rights if the officer failed to prevent another officer from violating
those rights despite a “realistic opportunity to intervene to prevent the harm from occurring.”
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). “Whether an officer had sufficient time to
intervene or was capable of preventing the harm caused by the other officer is generally an issue

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for the trier of fact unless, considering all the evidence, a reasonable jury could not possibly
conclude otherwise.” Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005) (citation
omitted).
Here, a reasonable jury could conclude that Awad had a realistic opportunity to intervene
to prevent the harm from occurring. First, he instructed the other officers to stop, which evinces
an opportunity to intervene. See Doc. 13 ¶ 30 (“Mr. Awad visited the scene, observed the
actions of Mr. Elhaj and Sgt. Anastacio, [and] advised them to stop with a reminder that a
mounted camera was capturing their activities[.]”); Abdullahi, at 774 (explaining that “a realistic
opportunity to intervene may exist whenever an officer could have called for a backup, called for
help, or at least cautioned [the excessive force defendant] to stop” (alteration in original)
(citation omitted) (internal quotation marks omitted)). Defendants assert that because Awad told
the officers to stop, Jackson’s claim must fail. Jackson, however, argues that Awad’s directive
did not suffice. He states that Awad did nothing further to attempt to stop the other officers from
their ongoing use of force. Although the video footage of the incident does not establish this, it
does not conclusively refute Jackson’s version of events, and the Court cannot make a credibility
determination at this stage. See Abdullahi, 423 F.3d at 773 (“At summary judgment a court may
not assess the credibility of witnesses, choose between competing inferences or balance the
relative weight of conflicting evidence[.]” (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986))). Moreover, the video footage does depict Awad at or near the scene while the other
officers continued to interact with Jackson. See Doc. 53. Construing the facts in a light most
favorable to Jackson, a jury could find that Awad “fail[ed] to take reasonable steps to attempt to
stop the use of excessive force . . . by his fellow officers.” Powell v. City of Berwyn, 68 F. Supp.
3d 929, 941 (N.D. Ill. 2014) (quoting Sanchez v. City of Chicago, 700 F.3d 919, 925–26 (7th Cir.

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2012)); see also Olmo v. Paterson Police Dep’t, No. CV 16-9414 (JMV), 2018 WL 1806054, at
*6 (D.N.J. Apr. 17, 2018) (“If true [that bystander officers had the time and ability to try to stop
behaviors of offending officer], then the [bystander officers] would have a duty to take
reasonable steps to protect the Plaintiff from the [offending] Officer’s use of excessive force.”);
7th Cir. Pattern Civil Jury Instructions 7.22 (“To succeed on his failure to intervene claim against
Defendant, Plaintiff must prove[,] . . . by a preponderance of the evidence . . . Defendant failed to
take reasonable steps to prevent harm from occurring.”). Therefore, the Court denies
Defendants’ motion on the merits of Jackson’s Eighth Amendment claim against Awad.
Defendants also assert, however, on behalf of all Stateville Defendants, that qualified
immunity shields them from liability on Jackson’s Eighth Amendment claim. “Qualified
immunity attaches when an official’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S.
73, 78–79 (2017) (citation omitted) (internal quotation marks omitted). The Court must ask
“(1) whether the facts alleged, taken in the light most favorable to the plaintiff, amount to a
constitutional violation; and (2) whether the constitutional right at issue was clearly established
at the time of the alleged violation.” McComas v. Brickley, 673 F.3d 722, 725 (7th Cir. 2012). If
the Court answers “yes” to both questions, then qualified immunity will not shield the Stateville
Defendants.
Turning to the first question, the facts in the record, when considered in a light most
favorable to Jackson, amount to a constitutional violation. “The Eighth Amendment prohibits
unnecessary and wanton infliction of pain, thus forbidding punishment that is so totally without
penological justification that it results in the gratuitous infliction of suffering.” Leiser v. Kloth,
933 F.3d 696, 703 (7th Cir. 2019) (citations omitted) (internal quotation marks omitted).

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Correctional officers violate the Eight Amendment when they use force “maliciously and
sadistically” to cause harm, rather than in a “good faith effort to maintain or restore discipline.”
Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir. 2018).
As to Elhaj and Anastacio, Defendants argue that they acted reasonably when they
attempted to secure Jackson’s chuckhole door using reasonable force, as purportedly shown in
the video of the incident. First, these contentions do little more “than gesture in the general
direction of the record and make conclusory assertions about what the record shows,” which
does not suffice to establish a qualified immunity defense. See Ortiz v. City of Chicago, No. 09CV-2636, 2010 WL 3833962, at *13 (N.D. Ill. Sept. 22, 2010) (“[Q]ualified immunity on the
excessive force claim is not available—at least at this time—based on a murky factual picture
and underdeveloped briefing.”). In any event, Jackson asserts that Elhaj slammed his forearm
against the cell door frame and bent his finger backwards, that Anastacio ground his chemical
spray canister into Jackson’s hand and thereafter sprayed the chemical into Jackson’s face and
chest, and that, even after he retreated completely into his cell, Anastacio continued to spray him
with the chemical agent. After the incident, Jackson claims he received medical attention from
both Pontiac and Stateville to address his injuries. 3 A reasonable jury viewing the video footage
could believe the Stateville Defendants’ version of events and conclude that they acted
reasonably; however, the footage could also support Jackson’s recollection of the incident. And
if the incident in fact occurred as Jackson claims, a jury could conclude that Elhaj and Anastacio
violated Jackson’s Eighth Amendment rights. See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.

In their reply brief, Defendants contend that Jackson has not provided evidence that Defendants acted
unreasonably or in violation of clearly established rights, despite his “self-serving” declaration. However,
the Court will not discredit Jackson’s recollection of the facts merely because he provided them in a “selfserving” declaration. See Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (finding the district court
erred when it discredited plaintiff’s testimony due to its “self-serving” nature because “testimony,
affidavits, responses to interrogatories, and other written statements by their nature are self-serving”).

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1984) (“[I]t is a violation of the Eighth Amendment for prison officials to use mace or other
chemical agents in quantities greater than necessary or for the sole purpose of punishment or the
infliction of pain.”); Moore v. Andrews, No. 2:20-CV-00124-JRS-MG, 2022 WL 672750, at *5
(S.D. Ind. Mar. 7, 2022) (allowing Eighth Amendment claim to proceed where genuine issues of
material fact existed as to defendant’s “intent when he administered the second burst of pepper
spray—that is, whether it was a good-faith effort to restore discipline or a malicious and sadistic
act”). The Court has already decided that a genuine dispute of material fact exists regarding
whether Awad’s behavior constitutes a failure to intervene in violation of the Eighth
Amendment. Therefore, the Court cannot resolve the first prong of the qualified immunity
assessment in favor of the Stateville Defendants. See Cyrus v. Town of Mukwonago, 624 F.3d
856, 862 (7th Cir. 2010) (“[S]ummary judgment is often inappropriate in excessive-force cases
because the evidence surrounding the officer’s use of force is often susceptible of different
interpretations.”).
Turning to the second prong of the qualified immunity inquiry, the Court considers
whether the officers would have realized that they acted unlawfully, construing the facts in a
light most favorable to Jackson. “Clearly established means that, at the time of the officer’s
conduct, the law was sufficiently clear that every reasonable official would understand that what
he is doing is unlawful.” Gupta v. Melloh, 19 F.4th 990, 1000 (7th Cir. 2021) (citation omitted)
(internal quotation marks omitted). As to Defendants Elhaj and Anastacio, despite their
conclusory assertions that they “had no reason to believe their actions were unlawful,” Doc. 50 at
10, “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary
standards of decency always are violated . . . whether or not significant injury is evident,”
Moore, 2022 WL 672750, at *5 (citing McCottrell v. White, 933 F.3d 651, 664 (7th Cir. 2019)).

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Because genuine disputes of fact exist regarding Elhaj and Anastacio’s use of force, qualified
immunity does not shield them from liability at this stage. See id. (declining to grant summary
judgment on qualified immunity grounds where the facts, when construed favorably to the
plaintiff, demonstrated an Eighth Amendment violation); Gupta, 19 F.4th at 1000 (“[W]here
there are disputes of material fact about the level of force used and the amount of force necessary
that are essential to the question of the reasonable use of force . . . it is impossible to conclude on
summary judgment whether [defendant is] entitled to qualified immunity.”).
As to Awad, the Court must consider whether it would have been clear to an officer in his
position that the others employed excessive force, thus triggering a duty to intervene. As
discussed above, questions of material fact exist regarding the extent and nature of Elhaj and
Anastacio’s use of force. But if the events unfolded as Jackson contends, then a jury could
conclude that Awad should have taken more steps to prevent or suppress the other officers’ use
of force. See Ellis v. Shurtz, No. 15-1155-SMY-RJD, 2018 WL 747425, at *3 (S.D. Ill. Feb. 7,
2018) (“At the time the underlying incidents occurred, it was clearly established law that
correctional officers, who have a realistic opportunity to step forward and prevent a fellow
officer from violating a plaintiff’s right through the use of excessive force but fail to do so, may
be held liable.”); Trepanier v. Davidson, No. 03 C 6687, 2006 WL 1302404, at *14 (N.D. Ill.
May 5, 2006) (finding a question of fact as to whether a reasonable officer would have thought
he had a duty to intervene where, “[i]f the events unfolded as Plaintiff alleges, the acts of
excessive force could . . . be understood by the jury to have taken place over an extended time
period and to have occurred in observable ways”). At trial, Awad “will be able to present
evidence showing that there was no cause to intervene, or that there was no reasonable
opportunity for intervention or no reasonable method to intervene.” Trepanier, 2006 WL

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1302404, at *14 (citing Yang, 37 F.3d at 286). At this stage, the Stateville Defendants have not
established their entitlement to qualified immunity. Therefore, Jackson’s Eighth Amendment
claim survives.

II.

Due Process Claim
Jackson asserts that the Hearing Committee and Leonta violated his rights under the

Fourteenth Amendment when they placed him in disciplinary segregation for three months,
along with ordering other disciplinary actions, without sufficient process. 4 Defendants move for
summary judgment on the bases that Jackson’s segregation did not trigger due process
protections and, even if it did, the Hearing Committee satisfied all due process requirements in
Jackson’s hearing. With respect to Leonta, Defendants argue that the Court should
independently grant their motion because he did not know of or participate in any of the alleged
due process violations. To proceed on his due process claim based on his disciplinary hearing,
Jackson must demonstrate (1) the deprivation of a liberty interest, and (2) constitutionally
deficient procedures. Lisle v. Welborn, 933 F.3d 705, 720 (7th Cir. 2019) (citation omitted).
Because Jackson has not identified deprivation of a liberty interest based on the record, the Court
need not consider the procedures afforded by Defendants. See Rodriguez v. Veath, No. 3:15-CV36-NJR-DGW, 2017 WL 1197241, at *9 (S.D. Ill. Mar. 31, 2017) (“Because no reasonable
factfinder could find that Rodriguez’s stint in segregation implicated a constitutionally protected
liberty interest, the Court need not consider whether the procedures followed during his
Adjustment Committee hearing were deficient.”).

The Court’s analysis focuses on disciplinary segregation, rather than on the other disciplinary actions
imposed by the Hearing Committee, because Jackson focuses his response on disciplinary segregation and
the record does not contain sufficient evidence suggesting that the other actions would trigger due process
protections. See, e.g., Miller, 759 F. App’x at 516 (“[W]e have already ruled that deprivations upon
demotion to C grade status do not implicate a liberty interest.”).

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Disciplinary segregation may implicate due process concerns only where the conditions
of detention impose an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In assessing
whether disciplinary segregation triggers due process protections, courts consider “the duration
and conditions of segregation.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir.
2009) (citing Wilkinson v. Austin, 545 U.S. 209, 224 (2005)). “The length of confinement must
be ‘substantial’ and the conditions of confinement ‘unusually harsh.’” Miller, 759 F. App’x at
516 (citing Marion, 559 F.3d at 698). The length of Jackson’s disciplinary segregation—three
months—does not on its own implicate the Fourteenth Amendment. See Hardaway v.
Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (six month and one day segregation insufficient to
trigger due process protections); Trainauskas v. Fralicker, No. 18-CV-00193-SPM, 2021 WL
1171674, at *5 (S.D. Ill. Mar. 29, 2021) (“[F]our months of segregation . . . is not such an
extreme term and, standing alone, would not trigger due process rights.”); Bentz v. Atchinson,
No. 314CV01132SMYRJD, 2017 WL 5999054, at *7 (S.D. Ill. Dec. 4, 2017) (“[N]either the
Seventh Circuit nor the Supreme Court has specifically held that a 90 day period of segregation
constitutes an atypical and significant hardship.”). However, if Jackson suffered unusually harsh
conditions of confinement or additional punishments, he may successfully establish a violation.
Kervin v. Barnes, 787 F.3d 833, 836–37 (7th Cir. 2015) (explaining that a period of segregation
shorter than six months “may, depending on the conditions of confinement and on any additional
punishments, establish a violation”); Nichols v. Best, No. 15 C 2946, 2017 WL 3872488, at *4
(N.D. Ill. Sept. 5, 2017) (“It is true that the Seventh Circuit has recently taken issue with courts
considering any segregation confinement less than six months to be too short to implicate a
liberty interest.”). But see Smith v. Akpore, 689 F. App’x 458, 460 (7th Cir. 2017) (finding

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plaintiff’s “approximately 3 months in disciplinary segregation were not long enough to raise a
concern under the Due Process Clause” without considering conditions of segregation). 5
Although neither the Supreme Court nor the Seventh Circuit has “established a clear, bright line
standard for determining how harsh prison conditions must be to constitute an atypical and
significant hardship,” Moore v. Hughes, No. 15-CV-0092-MJR-RJD, 2017 WL 1233855, at *4
(S.D. Ill. Apr. 4, 2017) (citing Kervin, 787 F.3d at 835–37), considerations include human
contact and access to facilities, see Wilkinson, 545 U.S. at 224 (finding a liberty interest where
conditions included, indefinitely, almost no human contact, 24-hour lighting, no parole
eligibility, and one permitted hour of exercise, but acknowledging that “any of these conditions
standing alone might not be sufficient”); Hardaway, 734 F.3d at 744 (“[P]risoners’ liberty
interests will be implicated when they are placed in segregation that deprives them of virtually
all sensory stimuli or human contact for an indefinite period of time.”).
Here, Jackson asserts in his statement of additional facts that his disciplinary segregation
cell, unlike the general population area, had feces and urine on the walls, constant noise with
inmates banging on cell doors, water contaminated with bacteria that causes Legionnaires’
disease, and roaches and mice. He also states that inmates in the disciplinary segregation cells,
unlike inmates in general population, throw feces and urine at other inmates while they pass by
The Seventh Circuit has described the appropriate benchmark for assessing whether a plaintiff suffered
from “unusually harsh” segregation conditions differently in various opinions. Some opinions contend
that courts should compare conditions in disciplinary segregation with conditions in nondisciplinary
segregation (e.g., segregation for administrative or protective purposes) rather than with conditions in the
general prison population because “in every state’s prison system, any member of the general prison
population is subject, without remedy, to assignment to administrative segregation or protective custody
at the sole discretion of prison officials” and therefore, “the conditions of discretionary segregation
provide the most apt benchmark.” Lekas v. Briley, 405 F.3d 602, 609 (7th Cir. 2005) (citing Wagner v.
Hanks, 128 F.3d 1173, 1175 (7th Cir.1997)). Others, however, suggest that courts should use the
ordinary conditions of a high-security prison as the benchmark. See Kervin, 787 F.3d at 836 (“[T]he right
comparison is between the ordinary conditions of a high-security prison in the state, and the conditions
under which a prisoner is actually held.” (citing Marion v. Radtke, 641 F.3d 874, 876 (7th Cir. 2011))).
Because Jackson has not demonstrated that he suffered atypical and significant hardship in either case, the
Court need not decide the appropriate benchmark.
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the cells to attend hearings, reach the shower, or to attend mental health treatment. As a
threshold matter, Defendants move to strike these facts because Jackson did not allege them in
his complaint, citing to cases wherein courts prevented plaintiffs from adding new claims or
amending their complaints in response to the defendants’ summary judgment motions. See
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (“[Plaintiff’s] attempt to amend
his complaint by way of a footnote in his response to defendants’ motion for summary judgment
was properly denied by the district court.”); Bassiouni v. C.I.A., No. 02 C 4049, 2004 WL
1125919, at *8 (N.D. Ill. Mar. 31, 2004) (rejecting plaintiff’s attempt to raise a new claim and
argument in opposition to defendant’s motion for summary judgment), aff’d, 392 F.3d 244 (7th
Cir. 2004). However, Jackson neither proffers new claims nor attempts to amend his complaint;
he merely provides facts based on personal knowledge in order to support a claim already in his
complaint—Defendants’ purported violation of his due process rights. Moreover, Defendants’
assertion does not comport with this Court’s summary judgment procedures, which provide that
a non-movant may include facts in his response demonstrating a genuine issue of material fact
and must cite supporting materials—as Jackson does here. See Judge Sara L. Ellis, Case
Procedures, Summary Judgment Practice, http://www.ilnd.uscourts.gov/judgeinfo.aspx?VyU/OurKKJRDT+FUM5tZmA==; see also Sweatt v. Union Pac. R.R. Co., 796 F.3d
701, 711–12 (7th Cir. 2015) (affirming this Court’s summary judgment case management
procedures); McKinney v. Off. of Sheriff of Whitley Cnty., 866 F.3d 803, 814 (7th Cir. 2017)
(“Our cases for at least the past fifteen years teach that [s]elf-serving affidavits can indeed be a
legitimate method of introducing facts on summary judgment.” (citation omitted) (internal
quotation marks omitted)); Lake v. Litscher, No. 02-C-0964, 2006 WL 2168824, at *2 (E.D. Wis.
July 31, 2006) (rejecting defendants’ argument that the court should disregard information in

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plaintiff’s response “beyond that which he presented in his complaint” in part because local rule
allowed non-movants to include affidavits in response to summary judgment motions and
defendants had an opportunity to respond to plaintiff’s affidavit in their reply brief). And, as
expressly contemplated by the Court’s rules, Defendants could have “respond[ed] to these facts
in [their] reply.” Judge Sara L. Ellis, Case Procedures, Summary Judgment Practice; see also
Lake, 2006 WL 2168824, at *2 (finding defendants did not suffer prejudice where they “could
have responded to this information in their reply brief”).
However, even construing the facts in the light most favorable to Jackson, when coupled
with his relatively short segregation time, he has not sufficiently raised a genuine issue of
material fact regarding whether he suffered “atypical and significant hardship.” See Obriecht v.
Raemisch, 565 F. App’x 535, 540 (7th Cir. 2014) (“Although Obriecht submitted a declaration
recounting deplorable conditions (in particular having to sleep on a mattress placed directly on
the wet floor), he was released from segregation after only 78 days.”); Whitfield v. Atchingson,
No. 13-CV-653-SMY-RJD, 2017 WL 3707180, at *5 (S.D. Ill. Aug. 28, 2017) (finding no
deprivation of a protected liberty interest where plaintiff’s segregation lasted three months, with
conditions including a steel door, cellmates with mental health issues, unpleasant odors, constant
noise, and other inmates throwing feces at him); cf. McKinley v. Atchison, No. 3:16-CV-661NJR-MAB, 2019 WL 4744839, at *7 (S.D. Ill. Sept. 30, 2019) (finding conditions including
mice and cockroach infestation, cracked window, no heat, no hot water for months on end, and
no cleaning supplies implicated plaintiff’s due process rights where conditions lasted more than
three years); Basemore v. Brookman, No. 16-CV-562-SMY-RJD, 2018 WL 1366587, at *3 (S.D.
Ill. Mar. 16, 2018) (conditions including mold, mice, other inmates throwing feces, and banging
on doors potentially constituted “atypical and significant hardship,” even though general

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population at Pontiac experienced similar conditions, where plaintiff’s segregation lasted nine
months). Although Jackson describes deplorable conditions of confinement, poor conditions of
confinement do not necessarily give rise to a due process claim, particularly when coupled with a
shorter segregation period. See Hopkins v. Klindworth, 556 F. App’x. 497, 499 (7th Cir. 2014)
(finding “allegations concerning the extreme cold air stated an Eighth Amendment claim,” but
affirming dismissal of due process claim based on same allegations where plaintiff’s segregation
lasted 16 days); Obriecht, 565 F. App’x at 540 (although the “deplorable conditions” of
plaintiff’s 78-day segregation did not suffice for due process claim, he “might have challenged
the conditions . . . under the Eighth Amendment”); Nichols, 2017 WL 3872488, at *5 (explaining
that although “increased exposure to cold” during 60-day confinement period may implicate the
Eighth Amendment, “it was not sufficiently harsh or atypical from ordinary prison life.”). Here,
Jackson does not claim that he experienced “significant psychological or other injury” resulting
from his segregation, Kervin, 787 F.3d at 837, nor that segregation deprived him of all, or even
some, human contact or sensory stimuli. 6 See Stallings v. Best, No. 16 C 11063, 2018 WL
4300488, at *6 (N.D. Ill. Sept. 10, 2018) (“While indefinite placement in an environment
designed to deprive a prisoner of human contact or sensory stimuli, along with revocation of
parole eligibility [constitutes atypical and significant hardship,] . . . mere exposure to unsavory
conditions worse than those experienced in general population housing generally will not.”
(citing Wilkinson, 545 U.S. at 224 and Hardaway, 734 F.3d at 744)). Because Jackson has not
raised, based on evidence in the record, a genuine dispute of material fact regarding his liberty

Although Jackson testified that he suffers from bipolar affective disorder and posttraumatic stress
disorder, he has not asserted what effect, if any, his disciplinary segregation had on these disorders.

6

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interest, the Court grants Defendants’ motion for summary judgment on Jackson’s due process
claim. 7
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion
for summary judgment [49]. The Court grants Defendants’ motion on Jackson’s due process
claim and denies Defendants’ motion on his Eighth Amendment claim.

Dated: January 18, 2023

___
______
SARA L. ELLIS
United States District Judge

Defendants also argue that qualified immunity protects them from Jackson’s due process claim.
Because the Court has granted summary judgment on the merits of the claim itself, the Court need not
address this argument.
7

17