Ellis v. Burris et al

Filing 106

OPINION AND ORDER: The Court GRANTS Defendants' Motion for Summary Judgment 81 and DIRECTS the Clerk to enter judgment in favor of Defendants Sgt. Alonzo Burris, Sgt. Steven Penning, Officer Daniel Nicksich, and Officer Brandon Mahoney. Signed by Magistrate Judge John E Martin on 3/20/2020. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DEMAJIO J. ELLIS,
Plaintiff,

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v.
SGT. BURRIS, et al.,
Defendants.

CAUSE NO.: 3:16-CV-561-JEM

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment [DE 81], filed
on March 6, 2019. For the following reasons, the motion is granted.
I.

Procedural Background
On November 18, 2016, Plaintiff Demajio J. Ellis, a prisoner in Westville Correctional

Facility, filed an Amended Complaint pro se alleging that Defendants Sgt. Alonzo Burris, Sgt.
Steven Penning, Officer Daniel Nicksich, and Officer Brandon Mahoney violated his Eighth
Amendment rights by confining him in unsanitary conditions. On March 6, 2019, Defendants filed
a Motion for Summary Judgment. Plaintiff filed a response on May 22, 2019, and on June 5, 2019,
Defendants filed a reply.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
II.

Summary Judgment Standard
Summary judgment is appropriate “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).
The party seeking summary judgment “bears the initial responsibility of informing the district court

of the basis for its motion and identifying” the evidence that “demonstrate[s] the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Substantive law
determines which facts are material; that is, which facts might affect the outcome of the suit under
the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A party asserting
that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular
parts of materials in the record” or “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1).
In ruling on a motion for summary judgment, the court must view all facts in the light most
favorable to the nonmoving party. Anderson, 477 U.S. at 255. The court will not “make credibility
determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs
for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Summary judgment is not a
substitute for a trial on the merits or a vehicle for resolving factual disputes. Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead, the court’s sole task in ruling on a motion
for summary judgment is “to decide, based on the evidence of record, whether there is any material
dispute of fact that requires a trial.” Payne, 337 F.3d at 770. If a reasonable factfinder could find in
favor of the nonmoving party, summary judgment may not be granted. Id.
III.

Material Facts
The following description is largely adapted from the facts alleged in Defendants’ Statement

of Facts Not in Dispute, which Plaintiff concedes are “correct.” Resp. at 2 [DE 87]. The Court
construes all facts and draws all inferences in the light most favorable to Plaintiff, the non-movant.
Plaintiff was housed in a single-person cell in the restrictive housing unit (B-Pod) at the

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Westville Correctional Facility. On January 12, 2016, around 9:10 p.m., Plaintiff was woken up by
people yelling about the toilets overflowing. Ellis Dep. 9:6-13 [DE 82-2]. He saw that sewage was
overflowing from his toilet.1 The sewage in Plaintiff’s cell was two inches deep and stayed there for
about six hours. Id. at 10:4-9; 11:6-9. Even after the water was shut off, Plaintiff’s toilet kept
overflowing periodically due to other inmates flushing their toilets. Id. at 28:11-23. While his cell
was flooded, Plaintiff sat on his desk, but would walk barefoot to the door of his cell and back to the
desk. Id. at 10:17-25.
When the toilets flooded, Defendant Burris was the supervisor in charge of the shift on BPod. Burris reported about the situation to his superior and maintenance was notified. Burris Resp.
to Interrogs. at 1 [DE 83-3]. Defendant Penning was a Sergeant working in the B-Pod that same
night. Penning directed his staff to contain the overflowing sewage and kept the shift captain
updated. Penning Resp. to Interrogs. at 3-4, 7 [DE 83-3]. The inmates were removed one at a time
from their cells as the prison staff attempted to clean the cells. Around 2:00 or 2:30 a.m., Defendants
Mahoney and Nicksich placed Plaintiff in an empty cell to allow him to use the bathroom while they
mopped and dried his cell. Ellis Dep. at 17:12-24 [DE 83-2]. When they were done, they returned
Plaintiff to his cell, which was still dirty with refuse from the sewage. Mahoney and Nicksich
continued this routine with other affected inmates in the B-Pod. Plaintiff eventually used his own
towel, soap, and shampoo to further clean the cell. Id. at 20:17-18. A total of fourteen restrictive
housing cells, with an offender in each of them, were flooded, as well as some of the showers.
Penning Resp. to Interrogs. at 1. The flooding was not totally stopped until about 5:45 am. Id. at 5.
During the flooding, Plaintiff repeatedly asked Mahoney and Nicksich to take a shower, but

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The flooding was caused by another inmate flushing clothes down the toilet. Ellis Dep. 9:18-25 [DE 82-2].

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they would not let him. Ellis Dep. at 19:19-25 [DE 82-2]. Plaintiff also spoke with Defendant
Penning, who came down about ten minutes after the flooding. Penning told Plaintiff they that were
going to handle the flooding, but “we’re not getting bleach and all that, and you know, we’re not
getting showers.” Id. at 14:15-25; 14:1-16. Plaintiff showered the following afternoon, which was
consistent with his normal schedule of showering once every three days. Id. at 29:3-12, 19-23.
On January 16, Plaintiff submitted a health care request form indicating that his right foot
was swollen due to the toilet overflowing. He saw a nurse and was given Tylenol. Id. at 22:18-23.
His pain lasted “probably about a week, maybe a little over seven days” and then the swelling went
away. Id. at 21:24-22:1; 23:1-4.
IV.

Analysis
The Eighth Amendment prohibits conditions of confinement that deny inmates “the minimal

civilized measure of life’s necessities.” Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008). In
evaluating an Eighth Amendment claim, courts conduct both an objective and a subjective inquiry.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective prong asks whether the alleged
deprivation is “sufficiently serious” that the action or inaction of a prison official leads to “the denial
of the minimal civilized measure of life's necessities.” Id. Although “the Constitution does not
mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), inmates are entitled
to adequate food, clothing, shelter, bedding, hygiene materials, and sanitation. Knight v. Wiseman,
590 F.3d 458, 463 (7th Cir. 2009); Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). On the
subjective prong, the prisoner must show the defendant acted with deliberate indifference to the
inmate’s health or safety. Farmer, 511 U.S. at 834. Deliberate indifference means that the defendant
“acted in an intentional or criminally reckless manner, i.e., the defendant must have known that the

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plaintiff was at serious risk of being harmed and decided not to do anything to prevent that harm
from occurring even though he could have easily done so.” Board v. Farnham, 394 F.3d 469, 478
(7th Cir. 2005). In other words, a plaintiff must show that “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.” Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016) (quotation marks omitted).
It is clear that being held for six hours in a cell filled with two inches of sewage would be
unpleasant. But even if the Court were to assume that Plaintiff’s conditions of confinement rose to
the level of denying him the minimal civilized measure of life’s necessities, summary judgment is
nevertheless warranted because he has not shown that any Defendant acted with deliberate
indifference toward his health and safety. To defeat summary judgment, Plaintiff must point to
evidence that the defendants “acted in an intentional or criminally reckless manner, i.e., [they] must
have known that the plaintiff was at serious risk of being harmed and decided not to do anything to
prevent that harm from occurring even though he could have easily done so.” Board, 394 F.3d at
478. In this case, Defendants actively responded to the flooding in the B-Pod. When the toilets began
to overflow, Burris reported to his superior about the situation and maintenance was notified.
Penning directed staff to contain the overflowing water and kept the shift captain updated. Mahoney
and Nicksich were cleaning the inmates’ cells one by one and got to Plaintiff’s cell around 2 or 2:30
a.m. They put him in an empty cell to use the bathroom while they mopped and dried his cell. They
continued to do the same in each flooded cell, but could not clean the cells totally because the
flooding was not completely contained.
Plaintiff argues that he should have been immediately relocated and allowed to shower, and

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should have been given bleach. Defendants present evidence that it would have been impractical to
try to relocate or give showers to all fourteen affected inmates, and that prisoners are not permitted
to have cleaning chemicals on their own. See Burris Resp. to Interrogs. at 3-5, Penning Resp. to
Interrogs. at 3-5 [DE 83-3]. Plaintiff has not presented evidence to contradict those points, nor
shown that the prison was obligated to take those steps. See Dixon v. Godinez, 114 F.3d 640, 642
(7th Cir. 1997) (“Prison conditions may be harsh and uncomfortable without violating the Eighth
Amendment’s prohibition against cruel and unusual punishment.”) (citing Farmer, 511 U.S. at
833–34). Plaintiff was permitted to shower in the afternoon, 18 hours after the flooding began, and
consistent with his normal schedule of showering once every three days. See Jaros v. Illinois Dep’t
of Corr., 684 F.3d 667, 671 (7th Cir. 2012) (“[L]imiting inmates to weekly showers does not violate
the Eighth Amendment.”) (listing cases). Assuming as true Plaintiff’s allegation that he suffered pain
and swelling in his foot because of the standing water, the injury was minimal and quickly resolved,
and Plaintiff has not presented evidence that any Defendant was aware of the injury or acted with
deliberate indifference to his health and safety.
V.

Conclusion
For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion for Summary

Judgment [DE 81] and DIRECTS the Clerk to enter judgment in favor of Defendants Sgt. Alonzo
Burris, Sgt. Steven Penning, Officer Daniel Nicksich, and Officer Brandon Mahoney.
So ORDERED this 20th day of March, 2020.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record
Plaintiff, pro se
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