Bentz et al v. Butler et al
Filing
145
ORDER GRANTED IN PART and DENIED IN PART AS MOOT 113 Motion for Summary Judgment. Summary Judgment is GRANTED on Counts 1 and 3 against Bentz and in favor of Defendants. Summary Judgment is DENIED as moot as to Count 2 against these Defendants. Co unt 2 is DISMISSED without prejudice. Furthermore, to the extent that Counts 1 and 2 state a claim on behalf of unnamed class members, those claims are DISMISSED. This matter remains pending on Counts 1, 2, and 3 against Defendant Westley Spiller onl y. Pursuant to Federal Rule or Civil Procedure 56(f), the parties are informed that the Court is inclined to grant judgment on Counts 1 and 3 and to dismiss Count 2 as to Defendant Spiller for the same reasons set forth in the attached Order. The parties shall file briefs, not to exceed five pages, as to why such a ruling should or should not be made as to Defendant Spiller on or before June 15, 2017. Signed by Judge Nancy J. Rosenstengel on 5/15/17. (klh2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID ROBERT BENTZ,
Plaintiff,
vs.
KIMBERLY BUTLER, AIMEE LANG,
BILL WESTFALL, JAMES BEST,
FRANK EOVALDI,
MICHAEL SAMUELS,
NICHOLAS BEBOUT, CLINT MAYER,
JOSHUA BERNER, SHANE QUANDT,
DONALD LINDENBERG,
JARED PHILLIPS, JAY MCMILLAN,
and WESTLEY SPILLER,
Defendants.
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Case No. 3:14-CV-996-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Currently pending before the Court is the Motion for Summary Judgment filed by
all Defendants, except Westley Spiller, on January 11, 2017 (Doc. 113). 1 For the reasons
set forth below, the Motion is granted in part and denied as moot in part.
INTRODUCTION
On September 12, 2014, David Robert Bentz, along with five other inmates, filed a
purported class action complaint on behalf of themselves and other inmates incarcerated
at the Menard Correctional Center alleging they were subjected to unconstitutional
conditions of confinement because of excessive heat in the North-2 cellhouse (“N-2”)
Bentz was granted leave to amend his complaint and add Westley Spiller as a Defendant on April 10,
2017, which was after the motion for summary judgment had already been filed (Doc. 133).
1
Page 1 of 22
during the summers (Doc. 1). That complaint was dismissed without prejudice on
October 16, 2014, for failure to state a claim (Doc. 15). After Plaintiffs filed an amended
complaint on November 6, 2014 (Doc. 18), they were issued a warning about the perils of
proceeding jointly and directed to notify the Court if they still wished to proceed with
the suit (Doc. 22). Only two Plaintiffs, Bentz and Jesse Perez, adopted the amended
complaint (Docs. 31, 35). Perez, however, later sought and was granted leave to dismiss
his claims (Docs. 61, 67). As such, Bentz is the only remaining Plaintiff.
In a nutshell, the amended complaint alleges that prison officials at Menard,
individually and in conspiracy with one another, do not take adequate measures to
ensure the health and safety of Bentz and the members of the proposed class when
temperatures in N-2 rise above a heat index of 90 degrees (Docs. 18, 36). According to
the amended complaint, there are few or no fans circulating air through the unit as a
whole (Id.). Ice and water are not regularly available in sufficient quantities and intervals
(Id.). Routine wellness checks are not made during these periods (Id.). Bentz alleges the
high heat and humidity is not merely uncomfortable, it poses a scientifically recognized
health risk, and an even greater danger to those with certain preexisting health
conditions (Id.).
The amended complaint was screened pursuant to 28 U.S.C. § 1915A, and Bentz
was permitted to proceed on three counts:
Count 1:
Since the summer of 2014 (in an ongoing violation),
Defendants, individually and/or in conspiracy, by their acts
and their failure to cure the conditions of confinement,
endangered inmates’ health and safety whenever the heat
index exceeded 90 degrees, in violation of the Eighth
Page 2 of 22
Amendment;
Count 2:
Since the summer of 2014 (in an ongoing violation),
Defendants, individually and/or in conspiracy, by their acts
and their failure to cure the conditions of confinement,
negligently endangered inmates’ health and safety whenever
the heat index exceeded 90 degrees, in violation of Illinois
common law; and
Count 3:
Since the summer of 2014 (in an ongoing violation),
Defendants, individually and/or in conspiracy, have by their
acts and their failure to cure the conditions of confinement,
retaliated against Bentz in violation of the First Amendment.
(Doc. 36).
To the extent that Counts 1 and 2 are pursuing claims on behalf of a class, those
claims are dismissed because, to date, no motion for class certification under Federal
Rule of Civil Procedure 23 has been filed. Consequently, the Court construes Counts 1, 2,
and of course 3, as pertaining to Bentz only.
The fourteen current Defendants were all employed at Menard during the
relevant time period as either correctional officers or medical staff, except for Kimberly
Butler, who is the former Warden of Menard. Each of the Defendants, except for Butler,
worked in or around N-2, which houses both general population inmates and those
subject to segregation.
In their motion for summary judgment, Defendants argue that they are entitled to
judgment as a matter of law because they did not subject Bentz to unconstitutional
conditions of confinement, they did not violate his Eighth Amendment rights, they did
not retaliate against him, and they are otherwise entitled to qualified immunity
(Doc. 114). Bentz filed a response in opposition to the motion for summary judgment on
Page 3 of 22
March 31, 2017 (Doc. 128). One week later, he filed an amended response, to which he
attached an affidavit that purports to verify that both the amended complaint and the
response itself are “true and correct” (Doc. 131, p. 13). Defendants filed a reply to Bentz’s
response on April 24, 2017 (Doc. 138).
LEGAL STANDARD
“Summary judgment is appropriate where the admissible evidence shows that
there is no genuine dispute as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th
Cir. 2014) (citing FED. R. CIV. P. 56(a)). In determining whether a genuine issue of
material fact exists, the Court views the record in the light most favorable to the
nonmoving party, and construes all facts and draws all reasonable inferences in favor of
that party. Bunn, 753 F.3d at 681.
On a motion for summary judgment where the nonmovant bears the ultimate
burden of proof on a claim, the moving party still has the “initial burden of
production . . . to inform the district court why a trial is not necessary.” Modrowski v.
Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). The movant can satisfy their burden by either
“presenting
affirmative
evidence
that
negates
an
essential
element
of
the nonmoving party’s claim” or by simply “showing that there is an absence of
evidence to support the nonmoving party’s case.” Hummel v. St. Joseph Cty. Bd. of
Comm’rs, 817 F.3d 1010, 1016 (7th Cir. 2016); Modrowski, 712 F.3d at 1169.
If the movant takes the latter approach, the non-moving party “must respond by
offering evidence that would allow a reasonable trier of fact to find in that party’s favor
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on the issue.” Hummel, 817 F.3d at 1016 (citation omitted). “The non-moving party ‘need
not depose her own witnesses or produce evidence in a form that would be admissible at
trial, but she must go beyond the pleadings (e.g., produce affidavits, depositions,
answers to interrogatories, or admissions on file).” Id. (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986)).
Here, Bentz states in his response and affidavit that he “will produce evidence of
retaliation [and other things] with testimony of witnesses and/or previous Plaintiffs in
this action and other” (Doc. 131, p. 13). Such a response to a Rule 56 motion is
insufficient. Summary judgment is “not a dress rehearsal or practice run; it is 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 the events.” Steen v. Myers, 486 F.3d
1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859
(7th Cir. 2005)). Bentz cannot merely inform the Court that certain individuals will
provide testimony at trial to support his case. He is “required to marshal and present the
court with the evidence [he] contends will prove his case” right now, as part of his
response to summary judgment. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th
Cir. 2010); See also Parker v. Trustees of Indiana University School of Medicine, 800 F.3d 843,
848 (7th Cir. 2015) (“Federal Rule of Civil Procedure 56 demands that the non-movant
‘cite to particular parts of materials in the record’ in order to show that there is a genuine
dispute of fact between the parties . . . .” (quoting FED. R. CIV. P. 56(c)(1)(A)). To the
extent that Bentz has not presented any evidence to dispute Defendants’ statement of
undisputed material facts, those material facts, as long as they are supported by
Page 5 of 22
evidence, shall be accepted as true.
Bentz’s affidavit also leaves a lot to be desired. In this brief affidavit, Bentz
essentially states that every fact contained in the amended complaint (Doc. 18), and his
response (Doc. 131), are true and accurate. This assertion presents a problem with
respect to the amended complaint because that document was signed by six Plaintiffs,
including Bentz. Bentz does not parse out which statements of fact, vague as they may
be, are the result of his own personal knowledge as opposed to the personal knowledge
of the other individuals. Furthermore, the amended complaint itself is not verified such
that the Court could consider factual statements made in it by the other individuals who
are no longer Plaintiffs in this suit. In any event, given the limited length of both the
amended complaint and the response, the Court will consider facts contained therein
that can be reasonably based on Bentz’s own personal knowledge.
FACTUAL BACKGROUND
On May 12, 2014, Kimberly Butler, the Warden of Menard, issued a “Procedural
Bulletin” setting forth how to combat excessive summer temperatures and how to
recognize and report heat related health conditions (Doc. 114-3, pp. 1-2). The Bulletin
was issued to all staff and offenders and provided, in particular, that: (1) on “extremely
hot days,” fans should be provided and placed around the cells and galleries to achieve a
gentle breeze; (2) when temperatures reach 95°F, inmates should be permitted to shower
frequently to reduce body temperature, ice water should be made available “at all times
during the working hours,” temperatures in the cells should be monitored, and hard
labor activities limited; and (3) frequent medical rounds should be made and signs of
Page 6 of 22
heat exhaustion or heat stroke should be reported immediately to health personnel (Id.)
(emphasis in original). The Bulletin also indicated that all inmates would be permitted to
purchase fans (even if restricted in their commissary purchases) during the summer
months and that ice would be handed out beginning on June 1, 2014 (Id.). This Bulletin
was reissued in 2015 and 2016 (Doc. 114-2, p. 2).
On May 29, 2014, shortly after Butler originally issued her Bulletin, the Medical
Director for the Illinois Department of Corrections, Dr. Louis Shicker, issued a
memorandum to upper-level administrators (i.e., Wardens and Directors) on the
prevention of heat-related illnesses (Doc. 114-4). The memo sets forth certain procedures
that should be followed and measures that should be instituted depending on the heat
index. 2 For instance, when the heat index reaches 90°F, water must be made available,
According to the National Weather Service, “the heat index is a measure of how hot it really feels when
relative
humidity
is
factored
in
with
the
actual
air
temperature.”
http://www.nws.noaa.gov/om/heat/heat_index.shtml (last visited May 8, 2017). See also (Doc. 114-4, p.
4). A chart presented by Defendants indicates that a heat index of 80°F to 90°F requires caution because
fatigue is possible with prolonged sun exposure or physical activity (Doc. 114-4, p. 4). A heat index
between 90°F to 105°F (or 103°F according to the National Weather Service) requires extreme caution
because heat stroke, muscle cramps, and heat exhaustion are possible with prolonged sun exposure or
physical activity (Doc. 114-4, p. 4). A heat index between 105°F to 129°F (or 103°F to 124°F according to the
National Weather Service) indicates danger because muscle cramps and heat exhaustion are likely, and
heat stroke is possible, with prolonged sun exposure or physical activity (Doc. 114-4, p. 4). And 130°F and
above (or 126°F according to the National Weather Service) indicates extreme danger because heat stroke
is likely (Doc. 114-4, p. 4).
2
Heat cramps are the first stage of heat-related illness and involve painful muscle cramps and spasms,
usually in the legs or abdomen, very heavy sweating, fatigue, and thirst. Heat exhaustion is the next stage
of heat-related illness; people with heat exhaustion may experience headache; weakness; lethargy;
dizziness or fainting; nausea or vomiting; pale, clammy skin; and a rapid, weak pulse. Heat stroke is the
most serious heat-related illness. Heat stroke occurs when the body is no longer able to regulate its
temperature, and it keeps rising. Symptoms of heatstroke include, fever; dry, hot, red, skin; rapid, shallow
breathing; rapid, strong pulse; irrational behavior; extreme confusion; seizures; and unconsciousness.
Heat stroke is a severe medical emergency, and a delay in treatment could lead to shock, brain damage,
organ failure, and even death. (All information regarding heat-related illnesses was obtained from the
websites of the National Weather Service, the National Institute of Health, and the Center for Disease
Control and Prevention, available at http://www.nws.noaa.gov/om/heat/heat-illness.shtml (last visited
Page 7 of 22
and hard labor should be curtailed (Doc. 114-4). When the heat index reaches 95°F, hard
labor must be stopped, and frequent showers should be permitted (Id.). And when the
heat index reaches 100°F, all non-essential labor must be stopped, and ice and water
should be made available in housing units (Id.).
With respect to monitoring temperatures, Bill Westfall, a Correctional Sergeant
assigned to the N-2 cell house between April 2014 and May 2015, indicated that a Unit
Shift Report was completed during each shift memorializing the temperature of the cell
house, measured by thermometers located on one of the four galleries, and the time it
was recorded (Doc. 114-5, pp. 1-2).
Notably, while Defendants presented that policies were in place at Menard to
address high heat and high heat indexes—specifically, the Procedural Bulletin and the
Director’s Memorandum—they did not present any evidence that those policies were
actually followed during the relevant time period by any of the named Defendants. Nor
is there any evidence that Unit Shift Reports were actually generated for each of the
three shifts during the relevant time period. Finally, Defendants have presented no
evidence of the actual temperature or heat index within the cells, galleries, or the N-2
cellblock itself. The pieces of evidence that Defendants have presented, therefore, are
only tangentially relevant to Bentz’s claim that none of the Defendants actually did
anything to combat excessive heat in the cells where he was housed. Thus the actual
conditions of Bentz’s confinement can only be gleaned from his deposition and the
May 8, 2017); https://medlineplus.gov/ency/article/000056.htm (last visited
https://www.cdc.gov/extremeheat/warning.html (last visited May 8, 2017)).
Page 8 of 22
May
8,
2017);
statements of fact made in his response and the amended complaint. 3
Bentz testified that he was housed in the N-2 cellhouse in general population in
an open-bar cell in 2014 (Doc. 114-1, pp. 3, 4). He further testified that he knew the
temperature or heat index was over 100 degrees because he watched the Weather
Channel and local weather channel for Chester, Illinois (the town next to where Menard
is located) (Id. at pp. 4, 5). No ice or ice water was passed out during the 7:00 a.m. to 3:00
p.m. shift, however, regardless of temperature (Id. at pp. 3, 4). At the time, Bentz heard
guards tell other inmates that no ice/ice water would be passed out because it was not
“over a hundred degrees,” 4 but he claims that no ice was passed out even when it did
reach that temperature (Id. at pp. 3-4). Bentz had a personal fan throughout the relevant
time period, but “when it gets that hot, the fan doesn’t cut it,” and there were no other
fans located in the gallery where he was housed (Id. at p. 4). He testified that three
oscillating fans were not installed in the gallery until 2015 (Id. at p. 5). And while there
were windows in each cell on the gallery, not all of them were operational; according to
Bentz, for “every 10 or 15, maybe 20 cells you only got four little windows that open” (Id.
at p.4).
There is no indication of where Bentz was housed during the summer of 2015
(see Doc. 114-1). It is also not completely clear where Bentz was housed during the
The amended complaint, filed on November 6, 2014, can only provide evidence as to the conditions in
the summer of 2014. Plaintiff’s deposition occurred on October 18, 2016 (Doc. 114-1, p. 1), and his amended
response was filed on April 7, 2017 (Doc. 131). The amended complaint and Bentz’s response provide facts
that are generally consistent with his deposition.
3
4
The guards’ statements appear consistent with Dr. Shicker’s memo.
Page 9 of 22
summer of 2016, but it appears that he spent time in both the South Uppers and a
segregation cell in the North cell house (see id. at pp. 5, 7, 10–11). His segregation cell had
a solid core door, but the door had a chuckhole that he was allowed to leave open for
ventilation (Id.) He also had his fan while he was in segregation (Id. at p. 6). In the South
Uppers, there were no fans along the gallery, although there was a large, six-foot fan at
the entrance of the gallery (Id). Bentz states, however, that during the winter months on
that gallery, it was hotter than the summer months “when it was a hundred degrees”
because the heater would be on (Id.). At one point in his deposition, Bentz indicated that
the heat was stifling, caused nose bleeds, and reached temperatures of 120°F (Id. at p. 17).
Bentz also claims that some of the cells he was housed in did not have cold water,
but he did not specify which cells (Doc. 114-1, p. 5). He explained that he does not have a
good recollection of when he was without cold water because the lack of cold water, or
the lack of water period, and general plumbing issues occurred so frequently at Menard
(Id. at pp. 5-6). With respect to showers, Bentz testified that he was allowed two showers
per week in 2014 and three showers per week beginning in 2016 (Id. at p. 6). He testified
that only two medical rounds were made during the summer of 2014: in the morning
and the evening to pass out medication (Id. at p. 8). No additional rounds were made
(Id.).
Essentially, Bentz’s main gripes are that ice or ice water was not passed out
during the hottest time of the day but rather in the evening when its effectiveness was
mitigated by falling temperatures; that medical personnel did not make extra rounds
during hot days to ensure inmates’ well-being; that there were no fans for ventilation;
Page 10 of 22
that there was no air movement, especially in cells with solid doors; and that there was
no way to open windows in all cells (Doc. 114-1, pp. 16-17).
Bentz believes that when the heat is 80°F or hotter, old injuries that he has to his
neck and hand get inflamed and swell (Doc. 114-1, pp. 7, 9). The inflammation in his
neck (which he claims is also affected by stress and dental issues) causes pressure behind
his eyes and vision problems (Id. at p. 9). With respect to the inflammation in his hand,
Bentz testified that it became difficult to write, and he was in “chronic pain” (Id.). Bentz
testified that he also suffered from muscle cramps and faintness in 2014 (Id.). In 2016, he
suffered from dehydration, muscle cramps, faintness, weight loss, and chest pains
because of the heat (at the time, he was in segregation behind a solid door) (Id. at p. 7-8).
Bentz claims that he complained about the excessive heat to Defendant Aimee
Lang in 2014 whenever he would see her (Doc. 114-1, 8). He also went to the Healthcare
Unit and complained about his neck and hand issues that were related to the excessive
heat (Id.). 5 When asked about the other Defendants, Bentz almost uniformly indicated
that they worked in or around the N-2 cellblock, that he mentioned the conditions of his
confinement (i.e., the lack of ice/ice water and ventilation/fans) to them in passing, and
that they did nothing (See generally Id. at pp. 10-17). It is not clear during which year(s)
Bentz encountered each individual Defendant.
Bentz admitted at his deposition that the actions of Defendants Kimberly Butler,
Bentz appears to agree that he only saw a nurse (presumably Lang) on May 11, 2014, when he injured his
neck and then saw a doctor the following year in August 2015 for that injury (Doc. 114-1, p. 9). The
implication is that he was not seen by healthcare in between. Bentz next testified that he sent in sick call
requests but that they went unanswered (Id.).
5
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Frank Eovaldi, James Best, Clint Mayer, Shane Quandt, Nicholas Bebout, Aimee Lang,
and Jay McMillan’s—denying him measures to provide relief from the heat—were not
taken in order to retaliate against him for filing grievances or lawsuits (Doc. 114-1, pp.
10, 12, 13, 15, 16).
As for Defendant Michael Samuels, when Bentz was asked if Samuels retaliated
against him, Bentz replied, “I, I don’t know off the top of my head. I don’t recall. I’ve had
issues with him on other cases . . . he’s been sued by me . . . . So he kind of, I don’t know
if he’s like retaliating or just ignoring me because I’m suing him” (Doc. 114-1, p. 11).
Later when asked if he had any specific evidence that Samuels retaliated against him,
Bentz said, “As far as, I don’t recall off the top of my head. If I did, I would have put it in
my, in my lawsuit. Unless it’s something that happened afterwards I would have
probably wrote him up for it” (Id. at p. 12).
Bentz testified that Defendant Donald Lindenberg retaliated against him by
harassing and threatening him on a daily basis for years (Doc. 114-1, p. 14). Bentz
admitted, however, that he did not think that Lindenberg’s actions were in response to
his complaints about the excessive heat or that Lindenberg somehow subjected him to
the excessive heat (e.g., transferred him to a particularly hot cell house or refused to give
him ice) (Id.). Bentz further testified that he is suing Lindenberg for his pattern of
harassment in another lawsuit, Bentz v. Lindenberg, SDIL Case No. 15-121-NJR-DGW
(Id.).
With respect to Defendant Joshua Berner, Bentz testified that Berner routinely
retaliated against him in various ways, such as taking his clothing, taking his property,
Page 12 of 22
and antagonizing him (Doc. 114-1, p. 15). When asked how Berner retaliated against him
as it pertains to this lawsuit and the excessive heat, Bentz stated, “he, I guess you would
say denied me adequate combative measures” (Id.).
As for Defendant Jared Phillips, Bentz testified that anytime he asked Phillips for
something in relation to the excessive heat, Philips responded by harass[ing Bentz] for
filing lawsuits and stuff like that” (Doc. 114-1, p. 13). When asked to describe the
harassment, Bentz stated “I mean like every time I pass him . . . I’m being, you know,
referred to as a suer. . . . It’s mainly just, you know, harassment, no threats. It’s just, you
know, constant nagging and grief, I guess you would say” (Id.).
Finally, with respect to Defendant Bill Westfall, Bentz testified that, at the time he
filed this lawsuit in September 2014, Westfall had done nothing to retaliate against him
(Doc. 114-1, pp. 10–11). But Bentz went on to say that Westfall retaliated against him
after this suit was filed (Id.). Specifically, in June 2016, Bentz filed an emergency
grievance about the excessive heat in the South Uppers cell house (Id.; see also Doc. 92, p.
14). Several days later, Bentz was moved out of the South Uppers to the North Uppers,
and Westfall told him it was because he complained about the excessive heat (Doc. 114-1,
p. 10). 6
DISCUSSION
A. Count 1—Conditions of Confinement
As indicated above, Bentz claims that the conditions of his confinement became
The grievance Bentz filed after his transfer indicates that “Major Bill Westfall told me that I should not
have filed a grievance about the excessive heat and I would not have been moved. ‘Good luck in
North Uppers there is no ventilation, you might die over there, you should not sue for things like excessive
heat’” (Doc. 92, p. 14).
6
Page 13 of 22
unconstitutional during the summertime months because he was required to endure
heat indexes of 90°F and above with no adequate relief. Bentz further claims that he
informed Defendants, almost all of whom worked the 7:00 a.m. to 3:00 p.m. shift in the
N-2 cellhouse, that the conditions were intolerable, but they did nothing to alleviate the
heat.
“[R]outine discomfort is part of the penalty that criminal offenders pay for their
offenses against society,” and so, “extreme deprivations are required to make out a
conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal
quotations omitted). Indeed, “the Constitution . . . does not mandate comfortable
prisons.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). While “[i]nmates cannot expect the
amenities, conveniences and services of a good hotel . . . the society they once abused is
obliged to provide constitutionally adequate confinement.” Harris v. Fleming, 839 F.2d
1232, 1235–36 (7th Cir. 1988). Thus, prison officials violate the Eighth Amendment when
“they are deliberately indifferent to adverse conditions that deny ‘the minimal civilized
measure of life’s necessities,’ such as adequate food, clothing, shelter, recreation, and
medical care.” Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). To succeed on a claim of deliberate indifference to a
condition of confinement, a prisoner must show: (1) a deprivation that is, from an
objective standpoint, sufficiently serious that it results in the denial of the minimal
civilized measure of life’s necessities, and (2) prison officials were deliberately
indifferent to this state of affairs. Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016)
(quotation marks and citation omitted).
Page 14 of 22
As to the first objective element, courts have found that extreme temperatures
inside prisons can violate the Eighth Amendment. Walker v. Schult, 717 F.3d 119, 126 (2d
Cir. 2013) (“[I]t is well settled that exposing prisoners to extreme temperatures without
adequate ventilation may violate the Eighth Amendment.”); White v. Monohan, 326 F.
App’x 385, 387 (7th Cir. 2009) (holding prisoner sufficiently stated conditions of
confinement claim based on extreme cell temperatures over 100 degrees and the lack of
ventilation); Valigura v. Mendoza, 265 F. App’x 232, 235 (5th Cir. 2008) (“We have held
that temperatures consistently in the nineties without remedial measures, such as fans,
ice water, and showers, sufficiently increase the probability of death and serious illness
so as to violate the Eighth Amendment.” (citing Gates v. Cook, 376 F.3d 323, 339–40 (5th
Cir. 2004)). In determining whether the heat is unconstitutionally excessive, the Court
must look at both the severity of the heat and its duration. Chandler, 379 F.3d at 1295; Cf.
Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997) (“[I]t is not just the severity of the cold,
but the duration of the condition, which determines whether the conditions of
confinement are unconstitutional.”).
Here, as previously mentioned, Defendants did not put forth any evidence
regarding the summertime temperatures or relative humidity outside or inside Menard.
But Rule 56 does not require Defendants to provide any evidence to negate Bentz’s
claim. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (citation omitted).
Defendants can instead discharge their burden under Rule 56 by pointing out that there
is an absence of evidence to support Bentz’s claim, which is precisely the case here. Id.
Page 15 of 22
While the Court has no doubt that the summertime temperatures inside Menard
are uncomfortable, there is simply no evidence sufficient for a jury to find that the heat
was serious enough to deny the “minimal civilized measure of life’s necessities.” The
only evidence regarding the temperature is Bentz’s repeated statements throughout his
deposition that the heat at Menard during the summertime was “excessive” (Doc. 114-1).
At one point, he also testified that during the summer of 2014 he knew that the
temperature or heat index was over 100 degrees because he watched the Weather
Channel and local weather channel for Chester, Illinois, which is the town next to
Menard (Doc. 114-1, pp. 4, 5). Unfortunately, however, this assertion is not supported by
any data, and the Court’s own internet research indicates that the average maximum
temperature during the summer of 2014 was between 81 and 84 degrees, and the
temperature never reached 100 degrees. 7 In fact, according to the National Oceanic and
Atmospheric Administration, the summer of 2014 was one of the ten coolest summers on
record in Illinois. 8 Based on this extremely limited evidence, there is no way to
determine the number of days where the indoor or outdoor temperatures or heat index
This information comes from the Weather Underground’s website. The Court typed “Menard, Illinois”
into the search bar, clicked on the “history” tab, and then input the desired date into the designated boxes.
https://www.wunderground.com. That search provided historical data for Sparta, Illinois, which is a
town located approximately 19 miles north of Menard, according to Google Maps. Another website,
www.usclimatedata.com, provided similar information for Carbondale, Illinois, which is a town
approximately 40 miles southeast of Menard.
7
Chris Geelhart, NAT’L OCEANIC AND ATMOSPHERIC ADMIN., 2014 Year in Review for Central and Southeast
Illinois, available at http://www.weather.gov/media/ilx/Climate/2014%20Annual%20Summary.pdf
(last visited May 10, 2017).
8
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exceeded 90 degrees (or 95 degrees or 100 degrees) or whether any of those occasions
were on consecutive days. 9
Additionally, Bentz has not pointed to any evidence that he was susceptible to
health complications because of excessive heat or that he suffered harm from the heat.
He testified that he experienced some swelling, cramping, and faintness, which are
issues common for anyone who spends any length of time in the summer heat. Cf. Mays
v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009) (holding that inmate failed to show that
“he suffered from anything more than the usual discomforts of winter” when he stated
that as a result of cold temperatures in his cell “he suffered from hurt ears and numb
hands, felt frostbite, and caught colds”). But see Graves v. Arpaio, 623 F.3d 1043, 1049 (9th
Cir. 2010) (finding temperatures in excess of 85°F greatly increase the risk of heat-related
illness for pretrial detainees taking psychotropic medications because those medications
affect the body’s ability to regulate heat); Gates v. Cook, 376 F.3d 323, 334 (5th Cir. 2004)
(noting that mental illness and medications that interfere with the body’s ability to
maintain a normal temperature can make inmates more susceptible to heat-related
illness).
Once again, the Court has no doubt that it is unpleasant to be inside a cell at
Menard during the summertime. However, because there is no evidence reflecting the
intensity and duration of the heat and no evidence demonstrating that Bentz faced
anything other than the usual discomforts to be expected during the summer in a
The Court could have obtained this data from the Weather Underground for Sparta, Illinois, but it would
have taken an extensive amount of searching, clicking, compilation, and analysis (beyond what was
already done by the Court). And it is not the Court’s job to locate or create evidence the parties chose not to
obtain and/or submit.
9
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building in Southern Illinois that is not air-conditioned, no reasonable jury could find
that the heat was unconstitutionally excessive. Green v. Walker, 398 F. App’x 166, 168–69
(7th Cir. 2010) (affirming grant of summary judgment on conditions of confinement
claim because the plaintiff did not point to “any evidence reflecting that the heat carried
on at extreme levels for an extended duration or that he suffered any harm from the
heat,” and therefore he could not show the heat was unconstitutionally excessive);
Vasquez v. Frank, 290 F. App’x 927, 929 (7th Cir. 2008) (affirming grant of summary
judgment on conditions of confinement claim because the plaintiff “presented no
evidence regarding the duration of the alleged excessive heat and no evidence that his
medical problems resulted from the conditions of his confinement”). See generally,
Chandler v. Crosby, 379 F.3d 1278, 1297 (11th Cir. 2004) (discussing case law in which
federal courts have considered Eighth Amendment claims regarding heat and
ventilation).
Because Bentz cannot satisfy the objective component of his conditions of
confinement claim, the Court need not consider the subjective component of whether
Defendants were deliberately indifferent, either individually or in conspiracy with one
another. Defendants are entitled to summary judgment on Count 1, which eliminates the
need to address the issue of qualified immunity.
B. Count 3—Retaliation
In Count 3, Bentz claims that Defendants refused to provide him with ways to
beat the heat in the cell house in order to retaliate against him filing lawsuits and
grievances.
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It is well-settled that a prison official who takes action in retaliation for a
prisoner’s exercise of a constitutional right violates the Constitution. DeWalt v. Carter,
224 F.3d 607, 618 (7th Cir. 2000). At the summary judgment stage, a prisoner has the
initial burden to make out a prima facie case of retaliation by showing that: “(1) he
engaged in activity protected by the First Amendment; (2) he suffered a deprivation
likely to deter such activity; and (3) the First Amendment activity was at least a
motivating factor in the decision to impose the deprivation.” Hawkins v. Mitchell,
756 F.3d 983, 996 (7th Cir. 2014) (citing Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir.
2012)).
Here, Bentz indisputably filed grievances and lawsuits, which are activities
protected by the First Amendment. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000);
Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010). Bentz cannot, however, satisfy the
other two elements of a prima facie case for any of the Defendants.
With respect to Defendants Butler, Eovaldi, Best, Mayer, Quandt, Bebout, Lang,
and McMillan, Bentz admitted that none of their actions were taken in retaliation for
filing grievances or lawsuits (Doc. 114-1, pp. 10, 12, 13, 15, 16).
With respect to Defendant Samuels, Bentz could not recall whether or how
Samuels retaliated against him (Doc. 114-1, pp. 11, 12), and Bentz submitted no other
evidence regarding retaliation by Samuels (see Doc. 131).
As for Defendant Lindenberg, Bentz indicated that none of Lindenberg’s
purported retaliatory actions were related to the excessive heat (Doc. 114-1, p. 14), and
therefore Lindenberg’s actions do not fall within the scope of Count 3.
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As for Defendant Berner, the only evidence of retaliation is Bentz’s vague and
conclusory statement that Berner denied him “adequate combative measures”
(Doc. 114-1, p. 15). Bentz provided no further evidence or details regarding his
purported requests to Berner or Berner’s response (see id.). This “scintilla of evidence” is
insufficient to defeat summary judgment because no reasonable jury could find in his
favor based on this evidence alone. Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir.
2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). See also Szymanski v.
Rite-Way Lawn Maint. Co., 231 F.3d 360, 364 (7th Cir. 2000) (“[A] party will be successful
in opposing summary judgment only when they present definite, competent evidence to
rebut the motion.”); Dale v. Lappin, 376 F.3d 652, 655–56 (7th Cir. 2004) (plaintiff who
offered concrete details in a sworn statement submitted enough to defeat summary
judgment, whereas vague assertions are not sufficient to create a genuine issue of fact).
Similarly, with respect to Defendant Phillips, Bentz provided only a vague
description of Phillips’s purported verbal harassment (Doc. 114-1, p. 13), which is
insufficient to establish that the harassment was serious enough to deter a person of
“ordinary firmness” from filing lawsuits in the future. See Hughes v. Scott, 816 F.3d 955,
956 (7th Cir. 2016) (“DeWalt v. Carter [224 F.3d at 612], suggests that ‘simple verbal
harassment’ of a prisoner does not suffice” to establish a prima facie case of retaliation).
Finally, with respect to Defendant Westfall, Bentz testified that he was moved
from the South Uppers to the North Uppers, and Westfall told him it was because he
filed a grievance about the excessive heat (Doc. 114-1, p. 10). First, the Court does not
understand how this transfer could possibly be construed as a deprivation related to the
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excessive heat when Bentz testified that “every cell house tends to have all the same
problems as related to heat as North 2” (Doc. 114-1, p. 10). In other words, according to
Bentz, the heat in the North Uppers isn’t any worse than the heat in the South Uppers.
Second, even if the move could be construed as a deprivation related to the excessive
heat, there is nothing that indicates Westfall was responsible for that deprivation. For
instance, there is no evidence that Westfall was responsible for cell assignments, that he
had the authority to transfer inmates to another cell, or that he requested or took steps to
initiate Bentz’s transfer. Without some evidence to that effect, Westfall’s comment
cannot be viewed as anything more than him communicating to Bentz the reality of his
situation, which does not amount to retaliation.
For these reasons, Defendants are entitled to summary judgment on Count 3. This
conclusion, once again, means that the Court need not consider the issue of qualified
immunity.
C. Count 2—State Law Negligence
Because Defendants are entitled to judgment as a matter of law as to the federal
claims, the Court declines to exercise jurisdiction over Bentz’s related state law tort
claims. See 28 U.S.C. § 1367(c)(3); Contreras v. Suncast Corp., 237 F.3d 756, 766 (7th Cir.
2001) (“A decision to relinquish pendent jurisdiction before the federal claims have been
tried is, as we have said, the norm, not the exception, and such a decision will be
reversed only in extraordinary circumstances.”) Consequently, the portion of
Defendants’ motion for summary judgment related to Count 2 is denied as moot.
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CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment filed
by Defendants, except C/O Spiller, on January 11, 2017 (Doc. 113) is GRANTED in part
and DENIED in part as moot.
Summary Judgment is GRANTED on Counts 1 and 3 against Bentz and in favor
of Defendants. Summary Judgment is DENIED as moot as to Count 2 against these
Defendants. Count 2 is DISMISSED without prejudice.
Furthermore, to the extent that Counts 1 and 2 state a claim on behalf of unnamed
class members, those claims are DISMISSED.
This matter remains pending on Counts 1, 2, and 3 against Defendant Westley
Spiller only. Pursuant to Federal Rule or Civil Procedure 56(f), the parties are informed
that the Court is inclined to grant judgment on Counts 1 and 3 and to dismiss Count 2 as
to Defendant Spiller for the same reasons as set forth above. The parties shall file briefs,
not to exceed five pages, as to why such a ruling should or should not be made as to
Defendant Spiller on or before June 15, 2017.
IT IS SO ORDERED.
DATED: May 15, 2017
NANCY J. ROSENSTENGEL
United States District Judge
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