Garmon v. Roeckeman et al

Filing 91

ORDER granting in part and denying in part 80 Motion for Summary Judgment. The case will continue as to Defendant Brown. Signed by Judge Staci M. Yandle on 6/7/2016. (rlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESSE C. GARMON, B23470,
Plaintiff,
v.

Case Number: 3:13-cv-00287-SMY-PMF

ZACHARY ROECKEMAN,
ROBERT CRAIG, JACK TOWNLEY,
ERIC RUSSELL, K. BROWN and
MAJOR ROUSEY,
Defendants.
MEMORANDUM AND ORDER
This is a prisoner civil rights lawsuit. Plaintiff Jesse Garmon is an inmate with the Illinois
Department of Corrections (“IDOC”) and Defendants are IDOC employees. Garmon filed suit on
March 22, 2013 (Doc. 1) asserting that Defendants violated his constitutional rights when he was
at Big Muddy River Correctional Center (“BMRCC”). Judge Gilbert screened Garmon’s
Complaint pursuant to 28 U.S.C. § 1915A and held that Garmon articulated two colorable
claims:
Count 1: Eighth Amendment claim against Roeckeman, Craig, Townley, and Russell for
failing to provide the plaintiff with adequate hygiene supplies,
Count 2: First Amendment retaliation claim against Brown and Russell for retaliating
against the plaintiff because he filed grievances regarding the hygiene supply issue.

Defendants Roeckeman, Townley, Craig and Brown now move for summary judgment. 1 For the
following reasons, Defendants’ motion is GRANTED as to Defendants Roeckeman, Craig and
Townley and DENIED as to Defendant Brown.

BACKGROUND
Garmon has been in and out of IDOC custody since the early 1990’s, but the incidents
that give rise to this litigation occurred in January through March of 2013 at BMRCC. (Garmon
deposition, Doc. 81-1, p. 9). Garmon was initially arrested on July 4, 2012 and placed in county
jail. Id. at p. 17. He was transferred to IDOC intake at Graham Correctional Center (“Graham”)
on October 12, 2012. Id at p. 17. Garmon was then transferred from Graham to BMRCC on
January 23, 2013. Id. at p. 11.
When Garmon arrived at BMRCC, he received a one week supply of hygiene products.
Id. at p. 18. This consisted of two small boxes of Whisk laundry detergent, a small bar of soap, a
small toothbrush, a container of toothpaste, a comb, a disposable razor, a roll of toilet paper and
an ink pen. Id. at p. 26. Garmon also arrived at BMRCC with a negative balance of about $10.00
in his prison trust fund account (he owed the IDOC for some unrelated legal fees and for some
underwear he had purchased at Graham), and was unable to purchase additional hygiene items at
the prison commissary. 2 Id. at p. 17. When Garmon’s supply of hygiene products ran out in early
February 2013, he was forced to trade his food trays for more supplies, or as was often the case,
go without. Id. at p. 16.

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Defendant Major Rousey was dismissed in Judge Gilbert’s 28 U.S.C. § 1915A screening order. Defendant Eric
Russell was not dismissed, but has not participated in this lawsuit since being served. An entry of default of was
issued against Russell (Doc. 46) but a default judgment has not been entered.
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Garmon testified at his deposition; “So anyway, July 4th, 2012 I got arrested. I had no money when I went to jail,
and I had a pair of shorts and a dago t-shirt and a pair of tennis shoes and socks. No visits. No money.” (Doc. 81-1,
p. 16-17).

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Prisoners in IDOC custody are generally entitled to a minimum of $10.00 in state pay per
month. (Doc. 81-1, p. 21). Garmon received his first state pay at BMRCC in mid-February 2013.
Id. at p. 18. Sometime shortly thereafter, he went to the prison commissary to purchase soap and
other needed supplies. However, at the commissary, Garmon became aware that he had only
received a little over $2.00 in state pay (it is unclear from the record as to why he did not receive
the full $10.00) and that his prison trust fund account still maintained a negative balance of about
$7.70. Id. at p. 18. Garmon was therefore unable to purchase any items.
Garmon spoke to and filed a grievance with his counselor, Eric Russell, regarding the
hygiene supply issue. (Doc. 81-1, p. 18). Garmon requested that Russell provide him with an
“indigent bag.” Id. at p. 19. Russell responded by telling Garmon that BMRCC does not provide
indigent bags to prisoners. Id. Garmon testified at his deposition that Kenneth Brown, Garmon’s
wing officer, also became aware that Garmon was protesting his lack of hygiene supplies. Id. As
a result, Brown repeatedly punished Garmon by locking him and his cellmate in their cell during
otherwise open dayroom periods. Id. at p. 20. Garmon also testified at his deposition that Brown
destroyed or otherwise obstructed the grievances he had filed. Id. at p. 63.
In addition to Russell and Brown, Garmon also complained about his hygiene supply
problem to Jack Townley, a lieutenant at BMRCC, Assistant Warden Robert Craig and Zachary
Roeckeman, BMRCC Warden. One evening, Garmon spoke to Townley, notifying him of the
hygiene supply issue. (Doc. 81-1, p. 44). Townley told Garmon that he should contact the prison
clothing office. Id. Townley did not provide any additional assistance. Garmon also discussed the
issue with Assistant Warden Craig as Garmon was walking to chow one day. (Doc. 81-1, p. 55).
Craig instructed Garmon to send a request to the Warden. Id. Sometime in late February or early
March, 2013, Garmon sent a written request to Warden Roeckeman for an indigent bag. (Doc.

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81-1, p. 53). Warden Roeckeman apparently dismissed the issue and notified Garmon that he
would not qualify as indigent if there was any money in his trust fund account. Id.
The record is not clear as to when Garmon had the ability to start purchasing his own
hygiene products at the prison commissary, but one of Garmon’s prison trust fund statements
indicates that he was able to make regular purchases from at least June, 2013 onwards. (Doc. 501, p. 12). Attached to Defendants’ Motion for Summary Judgment are declarations signed by
Roeckeman (Doc. 81-1, p. 1), Townley (Doc. 81-1, p. 79) and Brown (Doc. 81-1, p. 80).
Defendants note that a prisoner in Garmon’s situation would have been directed to contact the
BMRCC clothing unit and that he would not have been subject to retaliation for filing
grievances. Garmon filed this lawsuit on March 22, 2013. (Doc. 1). Defendants Roeckeman,
Townley, Craig and Brown now move for summary judgment. (Doc. 80). Garmon filed a
response in opposition. (Doc. 87).
ANALYSIS
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment 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.” When presented with a motion for
summary judgment “all evidence must be construed in the light most favorable to the party
opposing summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261 (1986). The
summary judgment phase of litigation has been described as the “‘put up or shut up’ moment in a
lawsuit, when a party must show what evidence it has that would convince a trier of fact to
accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.
2003).

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Defendants’ motion for summary judgment presents several arguments: (1) that
Defendants Roeckeman and Craig were not personally involved in the alleged constitutional
deprivation; (2) that Defendant Townley did not exhibit deliberate indifference; (3) that the
retaliation claim against Brown must fail because there is no causal link to any First Amendment
activity; and (4) that Defendants are entitled to qualified immunity. Each argument will be
addressed in turn.
The Eighth Amendment prohibits cruel and unusual punishment and it is applicable to the
states through the Fourteenth Amendment. Rhodes v. Chapman, 452 U.S. 337, 344 – 345 (1981).
“[A] prison official violates the Eighth Amendment only when two requirements are met.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the prisoner plaintiff’s claimed deprivation
must be objectively serious and second; the prison official must demonstrate “deliberate
indifference.” Id. Deliberate indifference is a level of culpability above ordinary negligence, and
it means to consciously disregard a known risk. Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir.
2004).
Pursuant to the Eighth Amendment, prisoners may not be deprived the “minimal civilized
measure of life's necessities.” Rhodes, 452 U.S. at 347. However “[n]o static test exists that
measures whether conditions of confinement are cruel and unusual, for the Eighth Amendment
draws its meaning from the ‘evolving standards of decency that mark the progress of a maturing
society.’” Talib v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998) (quoting Rhodes v. Chapman, 452
U.S. 337, 346 (1981)). In determining whether a deprivation violates the Eighth Amendment,
courts must consider the “amount and duration of the deprivation” Reed v. McBride, 178 F.3d
849, 853 (7th Cir. 1999) while being mindful of the “[S]tate's interests in prison safety and
security.” Washington v. Harper, 494 U.S. 210, 223 (1990). The Seventh Circuit has repeatedly

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held that deprivations of hygiene supplies for extended periods of time violate the Eighth
Amendment. Board v. Farnham, 394 F.3d 469, 479 (7th Cir. 2005) (county sheriff not entitled to
qualified immunity on pretrial detainee’s claim that he was denied toothpaste for three weeks);
James v. O'Sullivan, 62 F. App'x 636, 639 (7th Cir. 2003) (IDOC prisoner stated Eighth
Amendment claim when denied soap, toothpaste and toothbrush for 49 days); cf. Myrick v.
Anglin, 496 F. App'x 670, 675 (7th Cir. 2012).
Defendants Roeckeman, Craig and Townley do not argue that the Garmon’s lack of
hygiene supplies was not objectively serious, but instead argue that they were not deliberately
indifferent to the problem. Specifically, Roeckeman and Craig argue that their lack of personal
involvement precludes liability and Townley argues that he did not exhibit deliberate
indifference. The Court agrees.
Garmon only mentioned the hygiene supply issue in passing to Craig and Townley. Craig
told Garmon to write to the Warden and Townley told Garmon to contact the clothing
department. In the absence of some emergency, such minimal contact is insufficient to attach §
1983 liability. Moreover, Warden Roeckeman’s communications with Garmon indicate that he
believed Garmon did have money in his trust fund account. Although he was mistaken, Warden
Roeckeman’s conduct is not actionable under these circumstances. See Vance v. Peters, 97 F.3d
987, 992 (7th Cir. 1996) (“a supervising prison official cannot incur § 1983 liability unless that
officer is shown to be personally responsible for a deprivation of a constitutional right”). Of
course, Garmon’s Eighth Amendment claim against Russell survives because he was not a party
to the motion for summary judgment.
The next issue is Garmon’s retaliation claim against Brown and Russell. Brown argues
that he is entitled to summary judgment because Garmon has failed to establish a causal link

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between the alleged wrongful conduct and any First Amendment activity. To succeed on a First
Amendment retaliation claim, a prisoner must establish that “(1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment
activity in the future; and (3) the First Amendment activity was “at least a motivating factor” in
the Defendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009).
In this case, the filing of non-frivolous prison grievances is protected by the First
Amendment, see Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) and being denied dayroom
privileges would likely deter such activity in the future. Brown argues that there is no causal link
or “motivating factor” evidence, but Garmon asserts that he and his cellmate were locked in their
cell (when other prisoners were allowed out) not long after he started complaining about the
hygiene supply issue. Under these circumstances, Garmon has provided sufficient circumstantial
evidence to survive summary judgment on his retaliation claim.
Defendants also argue in general terms that they are entitled to summary judgment on the
basis of qualified immunity. As to Defendant Brown, this argument is without merit. Qualified
immunity shields government officials “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Here, Garmon presents sufficient facts to show that he
was subject to First Amendment retaliation. Moreover, the right to not be subject to such
retaliation was clearly established in early 2013 when the alleged unlawful conduct occurred. See
Bridges, 557 F.3d at 546.

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CONCLUSION
Defendants’ Motion for Summary Judgment is GRANTED as to Roeckeman, Craig and
Townley and DENIED as to Brown.

IT IS SO ORDERED.
Dated: June 7, 2016
s/ Staci M. Yandle
STACI M. YANDLE
UNITED STATES DISTRICT JUDGE

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