KRESS et al v. CCA OF TENNESSEE, LLC et al

Filing 132

ORDER - Defendants' Motion for Summary Judgment #122 is GRANTED in its entirety. Judgment shall issue accordingly. Signed by Judge Larry J. McKinney on 4/13/2011. (See order for specific details.) (REO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ALAN KRESS and RANDY CARR,
on behalf of a class of those
similarly situated,
Plaintiffs,
vs.
CCA OF TENNESSEE, LLC d/b/a
CORRECTIONS CORPORATION
OF AMERICA, MARION
COUNTY SHERIFF FRANK
ANDERSON, VIRGINIA LEE,
TIMOTHY LITTLE, JEFF CONWAY,
and NEIL PROBST,
Defendants.

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No. 1:08-cv-00431-LJM-DML

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on defendants’, CCA of Tennessee, LLC
(“CCA”), Virginia Lee (“Lee”), Timothy Little (“Little”), Jeff Conway (“Conway”), and Neil
Probst (“Probst”) (Lee, Little, Conway, and Probst collectively, “Employee Defendants”),
and Marion County Sheriff Frank Anderson (“Sheriff”) (collectively, “Defendants”), Motion
for Summary Judgment [Dkt. No. 122]. The Court has considered the parties’ submissions
and, for the reasons set forth below, GRANTS Defendants’ Motion for Summary Judgment
[Dkt. No. 122].

I. BACKGROUND
CCA is a private corporation specializing in running correctional facilities under
contract with local law enforcement agencies. Dkt. No. 111 at 1. Under contract with the

Marion County Sheriff’s Department (“Marion County”), CCA operates Marion County Jail
#2 (“Jail #2”), located at 730 East Washington Street, Indianapolis, Indiana. Id. at 1–2.
The Employee Defendants all work for CCA at Jail #2. Lee is a unit manager at Jail #2.
Id. at 2. Little is the health services administrator at Jail #2. Id. Probst is a doctor
providing medical services to Jail #2 inmates. Id. Conway is the warden of Jail #2. Id.
Plaintiffs Alan Kress (“Kress”) and Randy Carr (“Carr”) (collectively, “Plaintiffs”) are
inmates who were incarcerated at Jail #2 at the time this suit was filed. In April 2008,
Plaintiffs filed this Section 1983 suit challenging the conditions at Jail #2 on behalf of
themselves and those similarly situated. Dkt. No. 1. Plaintiffs alleged a number of
violations of state and federal law, regarding such issues as inmate mail procedure,
availability and handling of grievances, medical care, privacy of medical information, cruel
and unusual sanitation and overcrowding conditions, and improper financial incentives
being paid to Jail #2 administrators. See generally id.
On December 1, 2010, following briefing from the parties, the Court issued an Order
on Plaintiff’s Motion for Class Certification (“Class Certification”). Dkt. No. 111. The Court
certified a class encompassing “[a]ny and all persons currently, or who will be in the future,
confined to the Jail #2 facility” with Kress and Carr as class representatives seeking
injunctive and declaratory relief.

Id. at 15.

Because neither Kress nor Carr was

incarcerated at Jail #2 at the time the Class Certification was issued, the Court dismissed
all claims brought on their behalf individually as moot. Id. In addition, certain counts of the
Amended Complaint were dismissed as improper for class treatment. Id. at 9–12. The
following counts of the Amended Complaint [Dkt. No. 17] remain:

#

Counts Three, Four, and Fourteen, alleging that Jail #2's conditions violate
2

the Eighth and Fourteenth Amendments of the United States Constitution, as
well as the Indiana Jail Standards. Dkt. No. 17 ¶¶ 86–87, 99.

#

Counts Ten and Eighteen, alleging improper disclosure of inmate health
information in violation of the Health Insurance Privacy Portability Act
(“HIPAA”). Id. ¶¶ 94–95, 103.

#

Counts Twelve and Twenty, alleging the payment of incentives to Jail #2
administrators to encourage constitutional violations. Id. ¶¶ 97, 105.

On January 28, 2011, Defendants filed a Motion for Summary Judgment on the
remaining counts. Dkt. No. 122. In support of summary judgment, Defendants submitted
an affidavit from Conway, as well as discovery responses from Plaintiffs. See generally id.
In opposition, Kress and Carr presented their own statements. See generally dkt. nos. 1241, 124-2. In addition, Plaintiffs presented affidavits from Keith Harkness (“Harkness”) and
Timothy-Patrick Treacy (“Treacy”), two other inmates who were incarcerated in Jail #2.
See generally dkt. nos. 124-3, 124-4.
Kress was incarcerated in Jail #2 in 2007 and 2008 while awaiting trial. Dkt. No.
124-2 ¶¶ 1–2. Upon arrival at Jail #2, he was held in a small pre-intake room with
approximately twenty-five other inmates. Id. ¶ 3–4. The pre-intake room had two small
benches, and most of the inmates had to stand. Id. ¶ 5. Inmates were confined to the preintake room, which had one toilet and no running water, for six to eighteen hours without
food or water. Id. ¶¶ 6–8. After the pre-intake room, Kress was taken to the “big room,”
which housed 100–150 inmates for two to eight days. Id. ¶¶ 11, 13. Inmates in the big
room slept on the floor in “plastic boats,” and there was only one bathroom and one sink
for all the inmates in the room. Id. ¶¶ 12, 14–16. Kress also saw gnats in the bathroom
and several other locations within Jail #2, as well as mold around bathrooms, sinks, and
showers. Id. ¶¶ 21–22. Kress has not been incarcerated at Jail #2 since August 19, 2008.
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Dkt. No. 122-4 ¶ 4.
Beginning on February 28, 2008, Carr was incarcerated at Jail #2. Id. ¶ 3. He was
confined to the pre-intake cell with approximate twenty-eight other inmates for eighteen
hours without food or drinking water. Dkt. No. 124-1 at 3–4. Upon leaving the pre-intake
cell, Carr was moved to the big room where he remained for six to eight days with
approximately 150 other inmates. Id. at 6. He received sack lunches in the big room three
times a day. Id. at 7. Carr was transferred out of Jail #2 on August 5, 2008, and has not
returned since. Dkt. No. 122-4 ¶ 3.
Affiant Harkness was incarcerated at Jail #2 on two occasions, in the spring of 2007
and again from January 31, 2010 until March 5, 2010. Dkt. No. 124-3 ¶ 2. Harkness stated
that the pre-intake room was approximately thirteen feet by thirteen feet square and housed
twenty to thirty inmates. Id. ¶ 3. After the pre-intake room, Harkness was taken to the
“Katrina Room” for three to five days. Id. ¶¶ 8–9, 12. More than 100 inmates were housed
in the Katrina Room, which had one sink, one toilet, and no showers. Id. ¶¶ 10, 13.
Harkness saw gnats in the bathrooms and around trash cans in Jail #2. Id. ¶ 15. He also
saw mold growing in showers, bathroom areas, and vents in the facility and reported that
“[p]eople had respiratory illnesses.” Id. ¶ 16.
Affiant Treacy has been incarcerated at Jail #2 on three occasions: 2007, 2008, and
from February 2011 to the present. Id. ¶ 2. Treacy was not at Jail #2 between September
11, 2009 and February 2011. Id. During his 2007 and 2008 incarcerations, Treacy started
in the pre-intake room, which was approximately thirteen feet by thirteen feet and held thirty
to forty inmates. Id. ¶¶ 4–5. The pre-intake room was “very hot,” and the inmates
remained there “for several hours.” Id. ¶¶ 8–9. Treacy then was moved to the Katrina
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Room, where he spent two or more days waiting for a dorm assignment. Id. ¶¶ 10, 14.
The Katrina Room had one toilet and no working sinks, and inmate sleeping “boats” filled
“almost all the floor space in the room.” Id. ¶¶ 12–13. Treacy also reported gnats in the
toilets and living area, as well as “black mold” in the air vents and showers. Id. ¶¶ 17–18.
However, Treacy acknowledges that “[s]ince returning to Jail #2 this month [February
2011], I witnessed that there have been substantial changes to the running of the facility.”
Id. ¶ 20.
Beginning in May 2008, CCA computerized the intake process, significantly
lessening the time spent in the intake process. Dkt. No. 122-4 ¶ 5. The current pre-intake
room is a recreation room on the first floor of Jail #2 with a toilet, sink, and water fountain,
and inmates are generally held in the pre-intake room for less than six hours. Id. ¶ 6. After
pre-intake, inmates are transferred to a fourth floor dorm area designed to hold and sleep
up to 148 inmates. Id. ¶ 7. This area is regular housing unit with forty-two individual cells,
each with bunks, sinks, and toilets. Id. In addition, the fourth floor dorm area has three
drinking fountains, six toilets, six sinks, and six showers. Id.
CCA follows “regular housekeeping plans and procedures” to keep Jail #2 clean,
including regular inspections. Id. ¶ 10. Mold is reported to the responsible unit manager
for cleaning. Id. In addition, in late 2009, shower and drying areas of Jail #2 were stripped
and refinished with an epoxy system on floors, walls, and ceilings, including an antimicrobial to fight fungi and microbes. Id. Arab Pest Control performs monthly insect
inspections and treatments, and additional insect treatments are performed on an asneeded basis. Id. ¶ 11.
The Court includes additional facts below as necessary.
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II. LEGAL STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers v.
City of Milwaukee, 916 F.2d 1261, 1267–68 (7th Cir. 1990).

Motions for summary

judgment are governed by Federal Rule of Civil Procedure 56(a), which provides in relevant
part:
The 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.
Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials
showing that a material fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). A genuine
dispute of material fact exists whenever “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating
that such a genuine dispute of material fact exists. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d
992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of
evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the
responsibility of identifying applicable evidence. See Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court should draw all reasonable
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inferences from undisputed facts in favor of the nonmoving party and should view the
disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole
v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by
itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the
outcome of the suit in light of the substantive law will preclude summary judgment. See
Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273
(7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even
when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving
party does not have the ultimate burden of proof on a claim, it is sufficient for the moving
party to direct the court to the lack of evidence as to an element of that claim. See Green
v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994). “If the nonmoving party fails
to establish the existence of an element essential to [her] case, one on which [she] would
bear the burden of proof at trial, summary judgment must be granted to the moving party.”
Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).

III. DISCUSSION1
A. HIPAA
Defendants contend that Plaintiffs’ claims for violations of HIPAA must fail as a
matter of law because HIPAA does not grant a private right of action. Although the
Seventh Circuit has not directly addressed the issue, Plaintiffs concede, in accordance with
1

As an initial matter, Defendants contend that Plaintiffs’ response fails to comply with Local Rule
56.1 by failing to refute specifically each of Defendants’ numbered facts. See S.D. Ind. L.R. 56.1(b).
Instead, Plaintiffs provide a paragraph entitled “Statement of Material Facts by CCA Defendants Which
Are Disputed.” Dkt. No. 124 at 6. The Court concludes that Plaintiffs’ noncompliance is minor and,
therefore, will excuse such noncompliance. Accord S.D. Ind. L.R. 56.1(i) (“The Court may, in the interests
of justice . . . excuse failure to comply strictly with the terms of this rule.”).

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the decisions of numerous courts that have considered the issue, that HIPAA does not
provide a private cause of action. See, e.g., Acara v. Banks, 470 F.3d 569, 571–72 (5th
Cir. 2006) (collecting cases); Doe v. Bd. of Trustees of Univ. of Ill., 429 F. Supp. 2d 930,
944 (N.D. Ill. 2006) (“HIPAA provides civil and criminal penalties for improper disclosures
of medical information, but it does not create a private cause of action, leaving enforcement
to the Department of Health and Human Services alone.”). Because HIPAA does not
confer a private right of action for violations, it is unnecessary to evaluate whether Plaintiffs
would be able to show a HIPAA violation. Defendants’ Motion for Summary Judgment is
GRANTED on Plaintiffs’ HIPAA claims, and these claims must be DISMISSED.

B. EIGHTH AND FOURTEENTH AMENDMENT CLAIMS
Technically, “Eighth Amendment scrutiny is appropriate only after the State has
complied with the constitutional guarantees traditionally associated with criminal
prosecutions”—that is, the Eighth Amendment applies only to post-conviction prisoners.
Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979) (citing United States v. Lovett, 328 U.S. 303,
317–18 (1946)). Pretrial detainees’ rights are evaluated under the Due Process Clause of
the Fourteenth Amendment. Id. However, the analysis applied to alleged violations is the
same under both the Eighth and Fourteenth Amendments. Estate of Perry ex. rel Perry v.
Boone Cnty. Sheriff, No. 05-CV-1153, 2008 WL 694696, at *15 n.4 (S.D. Ind. Mar. 12,
2008) (McKinney, J.) (citing Barrie v. Grand Cnty., 119 F.3d 862, 868 (10th Cir. 1997); Hare
v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996)); see also City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244 (1983) (“the due process rights of a [pretrial detainee under the
Fourteenth Amendment] are at least as great as the Eighth Amendment protections
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available to a convicted prisoner.”). When discussing the Eighth Amendment in this Order,
the Court includes parallel rights under Fourteenth Amendment Due Process.

1. CURRENT EXISTENCE OF CONDITIONS
As an initial matter, Defendants contend that liability cannot be based on conditions
existing at Jail #2 in 2008, when Kress and Carr were held there, in light of evidence that
the conditions have been changed subsequently. Plaintiffs, in contrast, contend that they
should be able to rely upon conditions at Jail #2 as they existed when this suit was filed in
April 2008. Under Section 1983, declaratory or injunctive relief is only proper if there is a
continuing violation of federal law. Green v. Mansour, 474 U.S. 64, 73 (1985); see also
Woods v. New Albany Police Dep’t, No. 4:10-CV-2, 2010 WL 3398938, at *4 (S.D. Ind. Aug.
25, 2010) (Young, J.) (“If the court were to grant Plaintiff’s request for declaratory or
injunctive relief, it would not be the kind of prospective relief intended under Section 1983,
as it would be relief from a past constitutional violation, rather than relief from future or
continuing violations of federal law.”). Plaintiffs’ remaining causes of action are only for
injunctive and declaratory relief, not damages. See generally dkt. no. 111. Because the
relief in this case would be limited to injunctive or declaratory relief, the Court concludes
that evidence regarding Defendants’ remedying of conditions is relevant and should be
considered in conjunction with Plaintiffs’ evidence regarding previous conditions. Accord.
Green, 474 U.S. at 73.

2. INVOLVEMENT OF INDIVIDUAL DEFENDANTS
Defendants further assert that there is no evidence that the Employee Defendants
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or the Sheriff were personally involved in the alleged Eighth and Fourteenth Amendment
violations. Therefore, Defendants contend, the constitutional claims against the Employee
Defendants and the Sheriff must be dismissed as a matter of law.
Section 1983 does not allow for respondeat superior liability. Perkins v. Lawson,
312 F.3d 872, 875 (7th Cir. 2002). Instead, a state officer may be held liable only if he is
“personally involved” in the constitutional violation at issue. See Knight v. Wiseman, 590
F.3d 458, 462–63 (7th Cir. 2009). In addition, an officer may be liable in his official capacity
if the constitutional violation at issue resulted from an “official policy or custom” over which
the officer has ultimate policymaking authority. Perkins, 312 F.3d at 875 (citing City of St.
Louis v. Praprotnik, 485 U.S. 112, 121–22 (1988); Abbott v. Vill. of Winthrop Harbor, 205
F.3d 976, 981 (7th Cir. 2000)). With these standards in mind, the Court examines the
individual Defendants in this action.
Plaintiffs concede that some of the Employee Defendants no longer belong in this
case. In their response to the Motion for Summary Judgment, Plaintiffs concede that
because the Court previously dismissed Plaintiffs’ claims arising from grievance
procedures, Lee is no longer an appropriate defendant in this action. Dkt. No. 124 at 8.
Plaintiffs further concede that defendants Little and Probst were included in this action due
to their role in alleged HIPAA violations. Id. at 8–9. Because the Court concludes that
Plaintiffs’ HIPAA claims must be dismissed, Little and Probst are no longer appropriate
defendants in this action. Therefore, Defendants’ Motion for Summary Judgment is
GRANTED in its entirety as applied to defendants Lee, Little, and Probst, and all claims
against them are DISMISSED.
However, Conway and the Sheriff require closer attention. Defendants do not
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dispute that both have ultimate policymaking authority over Jail #2. In other cases involving
prison conditions, the Seventh Circuit has recognized that sheriffs and wardens “can be
expected to know of or participate in creating systemic, as opposed to localized, situations.”
Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th Cir. 1996). In this case, the conditions
Plaintiffs challenge as a deprivation of their Eighth Amendment rights include mold, insect
infestations, and overcrowding in intake rooms. As opposed to previously-dismissed claims
in this case such as failure to provide certain medications or mishandling of mail, see
generally dkt. nos. 111 & 121, the present complaints concern facility-wide issues rather
than localized ones. Cf. Antonelli, 81 F.3d at 1429 (dismissing § 1983 claims against
warden and sheriff for refusals of individual prisoner requests). The Court, therefore,
cannot conclude that claims against Conway and the Sheriff are precluded due to lack of
personal involvement as a matter of law.

3. EIGHTH AMENDMENT VIOLATIONS
Plaintiffs contend that the conditions of Jail #2 violate their Eighth Amendment rights.
The Eighth Amendment protects against the infliction of “cruel and unusual punishment.”
U.S. CONST. amend. VIII; see also Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001).
Prison conditions “may be harsh and uncomfortable without violating the Eighth
Amendment[].” Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997) (citing Farmer v.
Brennan, 511 U.S. 825, 833–34 (1994)); see also Rhodes v. Chapman, 452 U.S. 337, 349
(1981) (“[T]he Constitution does not mandate comfortable prisons[.]”). However, prisoners
are entitled to “the minimal civilized measure of life’s necessities.” Dixon, 114 F.3d at 642.
A combination of conditions may constitute an Eighth Amendment violation, even when one
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of those conditions in isolation would not, when the combination has “a mutually enforcing
effect that produces the deprivation of a single, identifiable human need such as food,
warmth, or exercise[.]” Wilson v. Seiter, 501 U.S. 294, 304 (1991). Overall, the Eighth
Amendment “must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).
When determining prison official liability under the Eighth Amendment, violations are
addressed under the deliberate indifference standard. Mayoral, 245 F.3d at 938. A prison
official may be liable under the Eighth Amendment when he “knows of and disregards an
excessive risk to inmate health or safety.” Id. This standard includes objective and
subjective prongs: there must be an “objective risk of danger,” and the official in question
must have had actual knowledge of the risk. Id. (citing Henderson v. Sheahan, 196 F.3d
839, 844–45 (7th Cir. 1999)). It is not enough that prison officials acted negligently. Id.
However, a prison official may be found liable without “desir[ing] the harm to befall an
inmate.” Id. at 939. A prison condition suit fails “[i]f the harm is remote rather than
immediate, or the officials don’t know about it or can’t do anything about it[.]” Jackson v.
Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). Plaintiffs point to a number of conditions2 they
allege constitute a deprivation of their Eighth Amendment rights, including gnat infestation,
mold, and the conditions of confinement during intake. The Court addresses these
conditions in turn.

2

In addition to the issues addressed in this Order, Plaintiffs discuss the conditions of the
segregation cells. Dkt. Nos. 124-2 ¶¶ 17–20; 124-3 ¶ 17; 124-4 ¶¶ 15–16. However, Plaintiffs did not
identify any issues with regard to segregation cells in their answers to interrogatories or depositions. See
generally dkt. nos. 122-1, 122-2. The only issue with segregation cells addressed in Plaintiffs’ depositions
involves Carr’s contention that he did not receive proper medication while in segregation. Dkt. No. 122-3
at 3–4. Plaintiffs may not contradict their prior deposition and interrogatory responses with subsequent
affidavits. Lorillard Tobacco Co., Inc. v. A&E Oil, Inc., 503 F.3d 588, 593 (7th Cir. 2007). To the extent
that Plaintiffs seek to do so now, the Court will disregard their presented evidence.

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Plaintiffs have presented affidavits stating that inmates saw gnats in bathrooms,
around trash cans, and in other places in Jail #2 as late as February 2011. Dkt. Nos. 124-2
¶ 21; 124-3 ¶ 15; 124-4 ¶ 17. Defendants present an affidavit from Conway stating that Jail
#2 is inspected and treated for insects monthly. Dkt. No. 122-4 ¶ 11. Additionally,
Defendant present answers to interrogatories in which Kress discusses “gnats in the
bathroom which were eventually cleaned up.” Dkt. No. 122-1 at 2–3. Taken in the light
most favorable to Plaintiffs, accord. Estate of Cole, 94 F.3d at 257, there is sufficient
evidence to create a genuine dispute as to whether gnats are present at Jail #2. However,
there is no evidence that any gnats present at Jail #2 caused injuries of any kind to any
prisoner beyond annoyance.

Although prolonged pest infestation may constitute a

constitutional deprivation, the Court concludes that the gnat presence identified in this case
is not severe enough to constitute such a deprivation. See Johnson v. Pollard, No. 08-CV297, 2009 WL 3063327, at *13–14 (E.D. Wis. Sept. 16, 2009) (gnats in prisoner cell
insufficient to constitute constitutional violation); see also Sain v. Wood, 512 F.3d 886, 894
(7th Cir. 2008) (cockroaches in prisoner cell insufficient to constitute constitutional violation,
even though prisoner was bitten by them at least twice).
Plaintiffs’ evidence indicates that Jail #2 had black mold in air vents and shower
facilities. Dkt. Nos. 124-2 ¶ 22; 124-3 ¶ 16; 124-4 ¶ 18. Affiant Keith Harkness states that
“[p]eople had respiratory illnesses[]” connected to the mold. Dkt. No. 124-3 ¶ 16. However,
none of Plaintiffs’ affiants indicate any basis for their belief that the substance observed
was in fact black mold or caused any respiratory illnesses, see dkt. no. 122-5 at 64 & 66,
and Defendants contend that the affiants are mistaken in believing that the substance was
mold. In addition, Defendants have introduced evidence that Jail #2’s shower facilities
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were refinished in late 2009 and that any mold at Jail #2 is cleaned during routine
housekeeping. Dkt. 122-2 ¶ 10. In his deposition, Plaintiff Kress confirmed that Jail #2
took steps to clean the “mold,” but he did not believe they “got it accomplished.” Dkt. No.
122-5 at 56. Although Plaintiffs have shown a genuine dispute of fact as to the existence
of mold at Jail #2, accord. Estate of Cole, 94 F.3d at 257, without evidence of illnesses
resulting from the so-called mold, the Court concludes that Plaintiffs’ allegations are
insufficient to rise to the level of a constitutional violation. Cf. Board v. Farnham, 394 F.3d
469, 485–86 (7th Cir. 2005) (mold and black fiberglass in air vents resulting in respiratory
problems and nosebleeds sufficient for Eighth Amendment violation); Lapine v. Caruso,
2011 WL 588774, at *5 (W.D. Mich. Feb. 10, 2011) (collecting cases for the proposition that
“mild to moderate symptoms from allergic reactions to common allergens like dust, mold
and mildew do not rise to constitutional dimension”).
In their challenge to conditions during the intake process, Plaintiffs discuss two
areas: the “pre-intake room”3 and the “Katrina Room.” Plaintiffs allege that in the pre-intake
room, which measures approximately fifteen by fifteen feet, twenty to thirty inmates are
confined with only one toilet and no running water. Dkt. Nos. 124-1 at 3–5; 124-2 ¶¶ 4,
6–7; 124-3 ¶¶ 3–4; 124-4 ¶¶ 4–5, 7. Inmates can be held in the pre-intake room for up to
eighteen hours without food or water in “stifling” heat, and there is only enough room for
six inmates to sit down, while the rest must stand. Dkt. Nos. 124-1 at 3; 124-2 ¶¶ 5,
8–9;124-3 ¶¶ 5–6; 124-4 ¶¶ 6, 8. Defendants contend that the intake process has been
revised such that inmates are held in the pre-intake room, which has a toilet, sink, and
water fountain, for less than six hours. Dkt. No. 122-4 ¶¶ 5–6. Once again, Plaintiffs fail
3

This has also been referred to as the “Forever Room.” See Dkt. No. 122-1 at 3.

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to suggest that any physical or mental injury occurred as a result of the conditions of the
pre-intake room, and the Court is unconvinced that Plaintiffs’ allegations amount to a
constitutional violation. Cf. Carston v. Sacks, No. 2:03-CV-1490, 2007 WL 41005786, at
*3–*5 (W.D. Pa. Mar. 30, 2007) (denial of food and water for four days not a constitutional
violation); Jensen v. Lake Cnty., 958 F. Supp. 397, 406 (N.D. Ind. 1997) (overcrowding is
not per se unconstitutional).
Following processing in the pre-intake room, inmates are sent to the “Katrina Room”
while awaiting dorm assignments. Dkt. No. 124-4 ¶ 10. 100 to 150 inmates are housed
in the Katrina Room, where they sleep in plastic boats on the floor for six to eight days.
Dkt. Nos. 124-1 at 6–7; 124-2 ¶¶ 11, 13–16; 124-3 ¶¶ 9–12, 14; 124-4 ¶ 11–12, 14. The
Katrina Room has one toilet and one sink. Dkt. Nos. 124-1 at 6–7; 124-2 ¶ 12; 124-3 ¶ 13;
124-4 ¶ 13. Like the pre-intake room, Defendants have made significant changes to the
“Katrina Room” portion of the intake process. Following processing in the pre-intake room,
inmates are taken to a dorm area designed to hold and sleep up to 148 inmates. Dkt. No.
122-4 ¶ 7. The dorm is a regular housing unit including bunks, cells, three drinking
fountains, six toilets, six sinks, and six showers, as well as sinks and toilets in each of the
forty-two cells. Id. The Court concludes that, however bad conditions may have been in
the “Katrina Room” at one time, the conditions at this stage of the intake process are not
currently constitutionally deficient. Accord. Dixon, 114 F.3d at 642.
Although the Court remains unconvinced that the conditions in Jail #2 are severe
enough to constitute constitutional violations, even assuming that the conditions are severe
enough to constitute a deprivation of Plaintiffs’ Eighth Amendment rights, the evidence

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before the Court shows that Defendants were not deliberately indifferent4 to the conditions.
There is no evidence that Defendants disregarded inmate health and safety in operating
Jail #2. In fact, all evidence in the record indicates that Defendants have taken steps to
improve conditions at Jail #2. See generally dkt. no. 122-4; see also dkt. no. 124-4 ¶¶ 4,
20 (comparing previous conditions and stating, “Since returning to Jail #2 this month, I
witnessed that there have been substantial changes to the running of the facility.”); dkt. no.
122-1 at 2–3 (gnats “were eventually cleaned up”). In short, there is no evidence that
Defendants continue to “disregard[] an excessive risk to inmate health or safety” such that
injunctive relief is appropriate. Mayoral, 245 F.3d at 938. Because Plaintiffs have not
brought forth evidence demonstrating a genuine dispute of material fact as to the presence
of a continuing constitutional violation, Defendants are entitled to summary judgment.
Accord. Green, 474 U.S. at 73.

C. INDIANA JAIL STANDARDS
Defendants contend that they are entitled to summary judgment on Plaintiffs’
accusations under the Indiana Jail Standards (“Standards”) because, like HIPAA, the
Standards do not provide a private right of action. It is well-established that the Standards
do not provide a private right of action for monetary damages. See, e.g., Malone v. Becher,

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Plaintiffs argue that, in case the pretrial detainees, a lower standard applies because “[t]he Due
Process Clause prohibits any kind of punishment—not merely cruel and unusual punishment—of a pretrial
detainee[,]” and therefore, Defendants must show that any conditions of confinement are not for the
purpose of punishment. Dkt. No. 124 at 11 (quoting Antonelli, 81 F.3d at 1425; Bell, 441 U.S. at 535
n.16); but see Estate of Perry, 2008 WL 694696, at *15 n.4 (applying the same standard under the Eighth
and Fourteenth Amendments). However, Plaintiffs acknowledge that Antonelli still requires application of
the deliberate indifference standard. Antonelli, 81 F.3d at 1425 (citing Salazar v. City of Chi., 940 F.2d
233, 238 (7th Cir. 1991)) (“A prison official violates the constitutional rights of a pretrial detainee only when
he acts with deliberate indifference. Conduct is deliberately indifferent when the defendant acts in an
intentional or criminally reckless manner.”).

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No. NA-01-101, 2003 WL 22080737, at *19–*20 (S.D. Ind. Aug. 29, 2003) (Hamilton, J.).
Plaintiffs contend that Malone and its progeny do not preclude suits for injunctive relief
under the Standards, particularly when the jail in question is run by a private, rather than
governmental, entity.
The Court previously dealt with a similar issue in this litigation when it determined
that, as to Plaintiffs’ claims regarding grievance procedures, neither the Prison Litigation
Reform Act or the Standards provided a private right of action. Dkt. No. 109 at 5–6. In that
Order, the Court stated:
The courts in Malone and Tyson [v. Grant Cnty. Sheriff, No. 07-CV-10, 2007
WL 1395563 (N.D. Ind. May 9, 2007)] analyzed the Standards and the
statute under which the Standards were promulgated and found that
Indiana’s General Assembly provided a remedy for a violation of the
Standards—but not a private right of action for inmates. Malone, 2003 WL
22080737, at *19–*20; Tyson, 2007 WL 1395563, at *8–*11. Specifically, the
remedy provided by Indiana’s General Assembly is that “the sheriff [may]
bring an action in the circuit court . . . for appropriate mandatory or injunctive
relief[,]” after the Department of Corrections investigates and notifies the jail
of the violation. Ind. Code § 11-12-4-2. The Court agrees with the Malone
and Tyson courts that the Indiana General Assembly contemplated a specific
remedy for potential violations of the Standards and did not intend to provide
inmates with a private right of action to enforce the grievance process
requirement in the Standards.
Id. at 5–6. The Court now expands this reasoning to encompass Plaintiffs’ remaining
claims under the Standards.
In doing so, the Court finds the reasoning of our sister court in Tyson to be highly
persuasive.5 In Tyson, Judge Lozano of the Northern District of Indiana examined similar
claims for injunctive and declaratory relief under the prison condition provisions of the
5

Plaintiffs contend that the Court should disregard Tyson as it “hails from the Northern District
[and] is not binding on this court.” Dkt. No. 124 at 15. Plaintiffs go on to argue that “Indiana courts are the
ultimate determiner of Indiana law, not the federal courts.” Id. However, in absence of any Indiana state
cases directly on point, the Court is fully within its discretion to consider well-reasoned opinions by sister
courts.

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Standards and found no private right of action. 2007 WL 1395563, at *7–*11. While
Malone specifically addressed damages, not injunctive relief, Tyson expands the reasoning
of Malone to encompass all forms of relief not specifically provided by statute. Id. Like the
Tyson court, this Court concludes that, as a matter of law, the Standards preclude all
private rights of action by prisoners, regardless of the type of relief requested.
Plaintiffs contend that Tyson should not apply when the sheriff has contracted jail
oversight to a private company. Because the sheriff is legally responsible for running
county jails, see Ind. Code § 36-2-13-5(a)(7) (2010), Plaintiffs argue that failure to comply
with the Standards would make the Sheriff a defendant rather than a plaintiff and
“[c]ertainly the Sheriff is not going to sue his alter ego, or the contractor he oversees, for
not complying with jail regulations.” Dkt. No. 124 at 15. However, Plaintiffs have not shown
why this makes jails run under contract with a private company any different than countyrun jails. In both cases, under Plaintiffs’ logic, the county sheriff would have to sue
himself.6 In addition, Plaintiffs’ argument ignores the fact that the Standards allow either
the county sheriff or the commissioner of the department of corrections to file suit to
enforce the Standards. See Ind. Code § 11-12-4-2(b) (2010). As far as the Standards are
concerned, the Court is unconvinced that a privately-run jail is subject to suit by prisoners
to enforce the Standards any more than a county-run jail. Regardless of the party
operating the jail, the Standards preclude private rights of action for prisoners to enforce
them, and Defendants Motion for Summary Judgment is GRANTED as to these claims.
6

Plaintiffs contend that “[t]he only way to render [the sheriff suit] provision with some rationality is
to assume there are occasions when a county sheriff may have to sue the county’s fiscal body (the county
commissioner or county council) to ensure that the Sheriff has the funds to comply with the Indiana Jail
Standards.” Dkt. No. 124 at 15. Contrary to Plaintiffs’ implication, the Court is convinced that a suit by the
sheriff against the county fiscal body is exactly what the General Assembly intended in enacting the
Standards.

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D. FINANCIAL INCENTIVES PAID TO JAIL ADMINISTRATORS
Defendants contend that the undisputed evidence shows no improper incentives
were paid to jail administrators to perform acts violating Plaintiffs’ constitutional rights.7 The
only evidence Plaintiffs have introduced involves how the amount of grievances affects Jail
#2’s rating by the American Correctional Association (“ACA”). See generally dkt. no. 80-1.
However, Plaintiffs admit that they have not provided any evidence that CCA pays financial
incentives to its administrators based either on ACA ratings or any other factor. Dkt. No.
124 at 17 & n.10. Defendants have presented evidence that CCA does not pay incentives
to administrators to act in an unconstitutional manner. Dkt. No. 122-2 ¶ 12. Plaintiffs
suggest that the Court should infer the paying of financial incentives based on findings in
other cases against CCA in other courts. See Bowman v. Corrections Corp. of Am., 350
F.3d 537, 542 (6th Cir. 2003) (jury found that doctor was paid incentives by CCA to reduce
costs of medical treatment). However, the Court must decide summary judgment based
on the evidence present before it, not hypothetical evidence which may or may not exist.
Accord. Fed. R. Civ. P. 56(e). Plaintiffs have provided no evidence that CCA provides
incentives of any kind to its administrators, let alone that those incentives depend on or
encourage constitutionally-suspect policies for inmate treatment. Defendants are entitled
to summary judgment for these claims.

7

Defendants further contend that Plaintiffs have not even stated a cause of action in this regard.
However, because the Court finds that Plaintiffs have not produced sufficient evidence on this claim as a
factual matter, the Court concludes that it is unnecessary to address this contention.

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IV. CONCLUSION
For the reasons set forth herein, Defendants’ Motion for Summary Judgment [Dkt.
No. 122] is GRANTED in its entirety. Judgment shall issue accordingly.
IT IS SO ORDERED this 13th day of April 2011.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution attached.

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Distribution to:
William A. Hahn
BARNES & THORNBURG LLP
[e-mail]
Jennifer Lynn Haley
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
[e-mail]
Adam Lenkowsky
ROBERTS & BISHOP
[e-mail]
Paul K. Ogden
ROBERTS & BISHOP
[e-mail]
Anthony W. Overholt
FROST BROWN TODD LLC
[e-mail]
Kenneth T. Roberts
ROBERTS & BISHOP
[e-mail]
Tasha Rebecca Roberts
ROBERTS AND BISHOP
[e-mail]
Michael Rosiello
BARNES & THORNBURG LLP
[e-mail]
Marc Pe-Caine Sultzer
OFFICE OF CORPORATION COUNSEL
[e-mail]

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