Hoffmann v. Hertz et al

Filing 112

MEMORANDUM AND ORDER, The Court hereby ADOPTS in part and REJECTS in part the Report and Recommendation (Doc. 107 ). Defendant Hertz's Motion [Doc. 76 for Summary Judgment is GRANTED and defendant Hertz is DISMISSED without prejudice. Defendants' Motion [Doc. 82 ) for Summary Judgment is GRANTED in part and DENIED in part. Count IV is DISMISSED and defendants Major, Bassett, and Rushing are DISMISSED without prejudice. Signed by Judge J. Phil Gilbert on 3/20/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID L. HOFFMANN,

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Plaintiff,
vs.
ROBERT HERTZ, et al.,
Defendants.

Case No. 15-cv-00289-JPG-SCW

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) [Doc.
107] of Magistrate Judge Stephen C. Williams recommending that this Court deny defendants’
motions for summary judgment. The defendants filed objections to the R & R [Docs. 108 &
109] in a timely manner.
The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The defendants have
filed objections, so this Court will review de novo those portions of the R & R to which
objections have been filed.
The Plaintiff filed his amended complaint and upon threshold review, was allowed to
proceed on the following claims:
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Count I: a conditions of confinement claim for exposure to raw sewage and
deprivation of fresh water against Defendants Schmidt, Bost, Hertz, Sellers,
Walker, Dover, McNaughton, Reichart, Beckley, and Hallenbeck for incidents
that occurred on an unspecified day in mid-June 2014, August 16, 2014,
September 6, 2014, September 17, 2014, December 27, 2014, and June 14, 2015;
Count II: a conditions of confinement claim regarding mold in the cellblock
against Defendant Reichart;
Count III: a conditions of confinement claim regarding the plumbing issues in
Plaintiff’s individual cell from July 4 to July 14, 2015 against Defendants
Beckley,Hallenbeck, Schmidt, Hill, Bost, and Dover; and
Count IV: a deliberate indifference claim to serious medical needs against
Defendants Marty, Allysia, and Vallery.
[Doc. 62, pgs. 10 & 11].
Defendant Robert Hertz filed a Motion [Doc. 76] to Dismiss or in the alternative, Motion
for Summary Judgment and the remaining defendants also filed a Motion [Doc. 82] to Dismiss or
in the alternative, Motion for Summary Judgment shortly thereafter. Since both motions attach
materials outside of the pleadings, these motions must be treated as motions for summary
judgment pursuant to Federal Rules of Civil Procedure 56.
Summary judgment must be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.

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The initial summary judgment burden of production is on the moving party to show the
Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at
trial, the moving party may satisfy its burden of production in one of two ways. It may present
evidence that affirmatively negates an essential element of the non-moving party’s case, see Fed.
R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element
of the non-moving party’s case without actually submitting any evidence, see Fed. R. Civ. P.
56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving
party fails to meet its strict burden, a court cannot enter summary judgment for the moving party
even if the opposing party fails to present relevant evidence in response to the motion. Cooper v.
Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere
existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented.”
Anderson, 477 U.S. at 252. As the Seventh Circuit Court of Appeals has repeatedly stated,
“summary judgment is the ‘put up or shut up’ moment in the life of a case.” AA Sales & Assocs.
v. Coni-Seal, Inc., 550 F.3d 605, 612 (7th Cir. 2008).
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With regard to the conditions of confinement, the defendants all argue that since they did
not have the authority to obtain funds to repair the sewage system, they cannot be held to be
deliberately indifferent to the conditions. However, the R & R found that summary judgment
was not appropriate since the plaintiff was alleging specific incidents of being exposed to raw
sewage and that the defendants failed to take action to remove him from his cell or to provide
him with fresh water and cleaning supplies.
Defendant Hertz separately objects to the R & R stating that it disregarded the fact that
defendant Hertz had no knowledge of the plaintiff’s complaint. Specifically, defendant Hertz
argues that the R & R “inferred” the conclusion that since defendant Hertz was aware of the
sewage problems and back-ups, he was aware of the plaintiff’s situation.
The Supreme Court has recently made clear that a viable Eighth Amendment
claim must contain both an objective and subjective component. To satisfy the
objective component, “the deprivation alleged must be, objectively, ‘sufficiently
serious.’ ” As the Supreme Court explained in Farmer, to be sufficiently serious
“a prison official's act or omission must result in the denial of the minimal
civilized measure of life's necessities.” Therefore, “extreme deprivations are
required to make out a conditions-of-confinement claim.”
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999)(internal citations omitted).
The subjective component requires the detainee allege that the jail officials knew
of a substantial risk of serious injury to the detainee but nevertheless failed to take
reasonable measures to prevent that harm from occurring. “[A] prison official
cannot be held liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”
Id. at 845.

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In this case, there is no indication that defendant Hertz was aware of plaintiff’s specific
exposure to raw sewage. There is also no evidence that defendant Hertz was present and/or
informed of any of the plaintiff’s specific incidents other than being informed of the general
condition of the jail facility. Further, the plaintiff testified that he never informed defendant
Hertz that he was directly exposed to raw sewage or that he was concerned about his welfare.
Plaintiff states that he could, “only assume” that defendant Hertz was aware of the incidents.
The evidence is clear that defendant Hertz was aware of general problem with the sewage and
sewage back-up into the jail. However, there is no evidence that defendant knew of a specific
substantial risk of serious injury to the plaintiff.
With regard to the remaining defendants, the Court agrees with the Magistrate Judge’s
finding that, taking the facts in the light most favorable to the plaintiff, these individuals were
present during the alleged incidents and could have taken measures to remove the plaintiff from
the contaminated area regardless of whether they were in a position to correct the sewage system.
It is also noted that these defendants did not object to this portion of the R & R. Therefore,
defendant Hertz, only, is entitled to summary judgment.
Defendants Major, Bassett, and Rushing did file objections to that portion of the R & R
which recommended denial of summary judgment with regard to Count IV – that they were
deliberately indifferent to plaintiff’s medical needs. The Eighth Amendment’s prohibition on the
unnecessary and wanton infliction of pain forbids deliberate indifference to a prisoner’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Zentmyer v. Kendall Co., 220 F.3d
805, 810 (7th Cir. 2000). To prevail on such an Eighth Amendment claim, a prisoner must show
(1) that he had an objectively serious medical need and (2) that the official knew that the medical
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need was serious but disregarded it. Zentmyer, 220 F.3d at 810.
“An objectively serious injury or medical need is, ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” Id. (citing Gutierrez v. Peters, 11 F.3d 1364,
1373 (7th Cir. 1997). A serious medical condition need not be life-threatening, but it should
constitute “a denial of the minimal civilized measure of life’s necessities.” Johnson v. Snyder,
444 F.3d 579, 585 (7th Cir. 2006)(overruled on other grounds.)
An official is deliberately indifferent if he “knows of and disregards an excessive risk to
inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference
can arise by a failure to provide prompt treatment for serious medical needs or by intentionally
interfering with treatment once prescribed.” Chapman v. Keltner, 241 F.3d 842, 845-46 (7th Cir.
2001)(citing Estelle, 429 U.S. at 104-05). It can also arise where a treatment decision was a
“substantial departure from accepted professional judgment, practice, or standards,” Estate of
Cole by Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996), or was “so far afield of accepted
professional standards as to raise the inference that it was not actually based on a medical
judgment,” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). However, a mere difference
of opinion by medical professionals as to the way a medical problem should be treated, while it
may lead to an inference of negligence, does not give rise to an inference of deliberate
indifference. Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001); Pardue, 94 F.3d at 261.
The prisoner must show that the defendant’s conduct was intentional or criminally reckless;
neither simple nor gross negligence is sufficient to establish deliberate indifference. Salazar v.
City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991).
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In this case, the R & R found a “dispute of fact” as to “whether Defendants were
deliberately indifferent in treating Plaintiff’s stomach issues with ear wax remover and/or failing
to provide him with care for his diarrhea or exposure to raw sewage.” (Doc. 107, pg. 15).
However, there is no indication that the plaintiff had an objectively serious medical need and that
defendants Major, Bassett, and Rushing knew that the medical need was serious but disregarded
it.
Diarrhea and stomach issues can lead to serious issues; however, there is no indication
that plaintiff’s symptoms were at that level. He was being seen by medical and provided
medication. The first time plaintiff was seen he was diagnosed with a cold or flu and given
antibiotics and Mucinex. At the next several sick calls, Plaintiff’s systems were attributed to ear
wax build-up and he was treated for that diagnosis. Plaintiff had an upset stomach, diarrhea, and
headaches. There is no testimony that he lost weight, could not keep food down,1 or had sudden
loss of bowel function.

Plaintiff also testified that he had no lingering effects after he was

transferred. Although the Court acknowledges that exposure to raw sewage is an extreme health
hazard, there is nothing to indicate that plaintiff had a serious medical condition, that the
defendants were aware of that condition, and that they failed to treat that condition.
The Court does acknowledge that, taking all facts in the light most favorable to the
plaintiff, defendants “ridicule” of the plaintiff while he was seeking medical assistance was
extremely unprofessional. However, the conduct does not raise to a violation of plaintiff’s
constitution rights.

1

Affidavit of Martha Major’s indicates that the plaintiff ate breakfast prior to sick call on December 29, 2014 when
he was complaining of an upset stomach and headache.
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The Court has reviewed those portions of R & R to which objections have been filed de
novo and the remaining portions of the R & R for clear error. The Court hereby ADOPTS in
part and REJECTS in part the Report and Recommendation (Doc. 107). Defendant Hertz’s
Motion [Doc. 76] for Summary Judgment is GRANTED and defendant Hertz is DISMISSED
without prejudice.

The Clerk of Court is directed to enter judgment accordingly at the

conclusion of this matter.
Defendants Tom Schmidt, Gary Bost, Blake Sellers, Time Walker, Matthew Dover,
Donald McNaughton, Craig Reichert, Drew Beckley, Robert Hollenbeck, Martha Major, Valerie
Bassett, and Alisia Rushing’s Motion [Doc. 82) for Summary Judgment is GRANTED in part
and DENIED in part. Count IV is DISMISSED and defendants Major, Bassett, and Rushing are
DISMISSED without prejudice. The Clerk of Court is directed to enter judgment accordingly at
the conclusion of this matter.
IT IS SO ORDERED.
DATED: 3/20/2017
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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