Blackwell v. Dooley et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Kramer's Motion for Summary Judgment [Doc. # 41 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motions for Summary Judgment related to defendant Kramer [Doc. # 62 and # 70 ] are DENIED. IT IS FURTHER ORDERED that Defendant Duwe's Motion for Summary Judgment [Doc. # 53 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment related to Defendant Duwe [Doc. # 68 ] is DENIED. IT IS FURTHE R ORDERED that Defendant Gunn's Motion for Summary Judgment [Doc. # 56 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion related to Defendant Gunn [Doc. # 77 ] is DENIED. Signed by Magistrate Judge Noelle C. Collins on July 17, 2015. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KEITH LAMAR BLACKWELL,
GERALD KRAMER, et al.,
No. 4:14CV1061 NCC
MEMORANDUM AND ORDER
The parties have consented to the jurisdiction of the jurisdiction of the undersigned United
States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 102). Plaintiff, a pretrial
detainee at all times relevant to the Complaint and Amended Complaint, brings suit against
officials of the St. Louis County Justice Center, as well as medical contractors at the Justice
Center, under 42 U.S.C. ' 1983 for violations of the 8th and 14th Amendments.
alleges that Defendants were deliberately indifferent to his serious medical needs and subjected
him to unlawful conditions of confinement while he was incarcerated at the Justice Center.
Defendants Gerald Kramer, Dolores Gunn and Janet Duwe have moved separately for summary
judgment on Plaintiff’s claims.
Additionally, Plaintiff has moved for summary judgment on all
of the claims contained in his Amended Complaint.
Based on review of the materials before
the court, the court finds that Plaintiff’s motions for summary judgment against Defendants
should be denied.
Furthermore, Defendant Kramer’s, Gunn’s and Duwe’s motions for
summary judgment will be granted.
SUMMARY JUDGMENT STANDARD
The standards applicable to summary judgment motions are well settled.
Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all
of the information before the court shows Athere is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.@ See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The initial burden is placed on the moving party.
See City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the
burden of clearly establishing the non-existence of any genuine issue of fact that is material to a
judgment in its favor). Once this burden is discharged, if the record shows that no genuine
dispute exists, the burden then shifts to the non-moving party who must set forth affirmative
evidence and specific facts showing there is a genuine dispute on a material factual issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in its
pleadings, but by affidavit and other evidence must set forth specific facts showing that a
genuine issue of material fact exists.
Fed. R. Civ. P. 56(e); Herring v. Canada Life Assur. Co.,
207 F.3d 1026, 1029 (8th Cir. 2000); Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir.), cert.
denied, 528 U.S. 1063 (1999).
The non-moving party Amust do more than simply show that
there is some metaphysical doubt as to the material facts.@ Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is Agenuine@
only Aif the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.@ Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A party resisting summary judgment has the burden to designate the specific facts that
create a triable question of fact.
(8th Cir. 2004).
See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114
Self-serving, conclusory statements without support are not sufficient to defeat
Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.
QUALIFIED IMMUNITY STANDARD
The Supreme Court has explained qualified immunity as follows:
An official sued under § 1983 is entitled to qualified immunity unless it is shown
that the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct. And a defendant cannot be
said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it. In other words, existing precedent
must have placed the statutory or constitutional question confronted by the
official beyond debate.
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2013).
A court must not “define clearly established law at a high level of generality, since doing
so avoids the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.” Id.; see also Blazek v. City of Iowa City, 761 F.3d 920,
922-23 (8th Cir. 2014). In considering the question of qualified immunity, a district court must
determine which facts are genuinely disputed and view those facts favorable to the non-movant
“as long as those facts are not so blatantly contradicted by the record that no reasonable jury
could believe them.” Handt v. Lynch, 681 F.3d 939, 945 (8th Cir. 2012) (citation omitted).
“Qualified immunity is an affirmative defense for which the defendant carries the burden of
The plaintiff, however, must demonstrate that the law is clearly established.”
Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 679 (8th Cir. 2012) (citation omitted).
Plaintiff, Keith Lamar Blackwell, initiated this action pro se on June 6, 2014, against
eight (8) correctional and medical officials connected with the St. Louis County Justice Center.
At that time, he was being held as a pretrial detainee at the Justice Center.1
In his Complaint,
Plaintiff alleged that the conditions in the St. Louis County Justice Center were unsanitary and
that Defendants had taken action against him in violation of his civil rights under the 4th, 8th and
14th Amendments2 of the United States Constitution.
Plaintiff also alleged that Defendants
had been deliberately indifferent to his serious medical needs.
The Complaint sought monetary
and injunctive relief.
Because Plaintiff sought to add additional claims and Defendants to his Complaint, on
August 11, 2014, the court ordered Plaintiff to submit an amended complaint on a court-provided
Plaintiff filed his Amended Complaint on August 18, 2014. In Plaintiff’s verified
Amended Complaint, Plaintiff again asserted claims against eleven (11) named correctional and
medical officials connected with the St. Louis County Justice Center. Plaintiff alleged that the
conditions in the St. Louis County Justice Center were unsanitary and that defendants had taken
action against him in violation of his civil rights under the 1th, 8th and 14th Amendments of the
United States Constitution.
Plaintiff also alleged that the named Defendants had been
deliberately indifferent to his serious medical needs.
The verified Amended Complaint once
again sought monetary and injunctive relief.
Plaintiff is currently being held in the United States Penitentiary in Lompoc, California.
Plaintiff also claimed that his 9th Amendment right to be free from “disparagement” had been
violated. Plaintiff had misconstrued the text of the 9th Amendment. The Amendment states, “The
enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.” The court found that Plaintiff could not bring a cause of action for
“disparagement” against defendants.
On November 10, 2014, the court reviewed Plaintiff’s Amended Complaint pursuant to
28 U.S.C. § 1915 for frivolousness, maliciousness and for failure to state a claim upon which
relief could be granted. The court dismissed several claims and Defendants pursuant to § 1915.
However, the court ordered service of process on Plaintiff’s claims against Defendants Dolores
Gunn, Gerald Kramer, Fred Rottnek, Philip Wenger, Andrew Moore and Janet Duwe.
Rather than file an answer to Plaintiff’s claims, Defendants Gerald Kramer, Dolores
Gunn and Janet Duwe immediately filed separate Motions for Summary Judgment after being
served with process. See Doc. #41, #53 and #56.
Defendants Philip Wenger and Fred Rottnek
filed separate Answers to Plaintiff’s Amended Complaint. See Doc. #27 and #40.
responses to Defendants’ Motions for Summary Judgment, while simultaneously moving for
summary judgment on his claims against all of the named Defendants. See Doc. #62, #67, #68,
#70, #75 and #77.
On May 5, 2015, Plaintiff’s claims against Andrew Moore were dismissed, without
prejudice, due to Plaintiff’s failure to provide the court with an address at which Defendant
Moore could be served.
See Fed.R.Civ.P. 4(m).
Plaintiff’s Amended Complaint asserts that plaintiff suffers from the following medical
conditions: chronic obstructive pulmonary disease (COPD); sleep apnea; bleeding from his
rectum/colon problems; an unspecified heart disorder; unspecified swelling in his breasts;
gastrointestinal reflux disease (GERD); neck and back pain/nerve spasms; “floaters” in his eyes
due to glaucoma; and unspecified swelling in his feet/legs.
Plaintiff states that when he entered the Justice Center in November of 2013, he was
receiving treatment for some of the aforementioned disorders by way of sleeping with a
continuous positive airway pressure (CPAP) machine, sleeping with a “medical wedge” placed
under his mattress, taking the medication Advair and using prescription eye drops.
Plaintiff claims that despite having medical documentation about his need for these
treatments, Defendants Dolores Gunn, Dr. Fred Rottnek and Philip Wenger, Pharm. D, have
been deliberately indifferent to his serious medical needs by failing to provide him with a
“medical wedge,” failing to provide him with prescription eye drops and Advair, and failing to
act quickly when his CPAP machine broke and needed to be fixed/replaced.
Plaintiff also states that he was denied appropriate treatment for bleeding from his
rectum, including suppositories and surgical follow-up, and he asserts that he was not given pain
medication for his neck and back pain.
Plaintiff states that when he complained to Defendant Rottnek about the poor medical
care, he was told that if he sued him he would be “transferred to the Downtown Justice Center”
where Plaintiff would receive “real deliberate indifference.”
Plaintiff next asserts that Janet Duwe, the nurse on duty between the hours of 1:00 am
and 6:00 am on August 1, 2014, was deliberately indifferent to his serious medical needs when
his CPAP machine malfunctioned while he was sleeping and he awoke to serious breathing
problems and a coughing fit.
Plaintiff asserts that when he sought assistance from Defendant
Duwe, she told him that he would be fine until shift change, without assessing his medical
condition. Plaintiff states that he continued to cough and choke through the night as a result of
his broken machine.
Plaintiff claims that Defendant Kramer, the Floor Manager on 7D, was aware of and had
taken his complaints regarding, the unlawful conditions of confinement at the Justice Center.
Plaintiff asserts that Kramer knew that the food is served on “dirty trays,” and that the showers
were not properly cleaned, that they contained mold and mildew, and that the sheets and towels
that contained mold and mildew were not properly cleaned between each use by the inmates.
Plaintiff states that Defendant Kramer is also aware that the showers and toilets had not been
cleaned properly and resulted in foot infections.
Plaintiff asserts that these conditions have
resulted in adverse medical consequences for himself and other inmates at the Justice Center.
Plaintiff became an inmate at the Justice Center on November 21, 2013 and was
transferred from the Justice Center on or about October 20, 2014.
Denial of Medical Care
In the Amended Complaint, Plaintiff alleges that Defendants Gunn, Rottnek and Wenger
were deliberately indifferent to his serious medical needs when they failed to provide him with a
“medical wedge,” failed to provide him with prescription eye drops and Advair, and failed to act
quickly when his CPAP machine broke and needed to be fixed/replaced.
Plaintiff also alleges
that these Defendants were deliberately indifferent to his medical needs when he reported he
needed treatment for bleeding from his rectum, and he asserts that he was not given pain
medication for his neck and back pain.
Plaintiff additionally claims that Defendant Duwe was deliberately indifferent to his need
for medical care on one particular night at the Justice Center (August 1, 2014) when his CPAP
machine broke and he started suffering from respiratory distress.
He states that Duwe was the
nurse on duty on that evening and she failed to examine either him or the machine despite his
report to the correctional officers on duty (and their relay of the message to Duwe over the
phone) that he had a broken machine and he was having difficulty breathing.
As noted above, Defendants Duwe and Gunn have moved for summary judgment on
Plaintiff’s medical claims against them, while Plaintiff has moved for summary judgment on his
claims against all five of the medical Defendants.
The United States Court of Appeals for the Eighth Circuit applies Athe same >deliberate
indifference= standard to pretrial detainees as is applied to Eighth Amendment claims made by
convicted inmates.@ Vaughn v. Greene Cnty, Ark., 438 F.3d 845, 850 (8th Cir. 2006). The
Eighth Circuit further holds:
Under this standard, an official is deliberately indifferent (reckless) if he disregards
a known risk to a prisoner=s health. To establish a constitutional violation, it is not
enough that a reasonable official should have known of the risk. Rather, a plaintiff
must demonstrate the official actually knew of the risk and deliberately disregarded
Id. (citations and quotations omitted).
ADeliberate indifference may include intentionally denying or delaying access to medical
care, or intentionally interfering with treatment or medication that has been prescribed.
Additionally, qualified immunity protects Aall but the plainly incompetent or those who knowingly
violate the law.@ Vaughn, 438 F.3d at 850.
AA serious medical need is one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily recognize the necessity
for a doctor=s attention.@ Cambreros v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995).
medical care that results in Aunnecessary suffering is inconsistent with contemporary standards of
decency@ and violates the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 103 (1976).
Defendant Dolores Gunn asserts that she is entitled to summary judgment on Plaintiff=s
medical mistreatment claims because she did not have any personal interaction with Plaintiff
relating to his medical needs.
Defendant states that she acts as the Director of the Department
of Health and is responsible for overseeing medical staff and for promulgating rules, policies and
procedures. She states that she never had any contact with Plaintiff regarding any of his
grievances, and she did not make any determinations relating to Plaintiff’s medical care.
Defendant Gunn points out that although Plaintiff asserts in a conclusory statement in his
verified Complaint that he included information relating to his medical issues in a grievance to
Defendant Gunn in May or June of 2014, he did not attach any such grievance to his Amended
Complaint, even though he attached other grievances to the pleading. Finally, Defendant Gunn
states in an affidavit attached to her summary judgment motion that she had no knowledge of
Plaintiff’s medical condition, she did not see any of Plaintiff’s complaints or grievances relating
to his medical issues and she did not consult with Plaintiff’s physicians regarding to his care.
Rather than claim in his response brief that he actually complained to Defendant Gunn,
Plaintiff asserts that Defendant Gunn should be held liable for deliberate indifference to his
medical needs because she was “in charge” of approving “care treatments” and “medications”
for inmates at the Justice Center. Plaintiff’s arguments sound in respondeat superior, which is
unavailable under §1983.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
ALiability under ' 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.@ Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under ' 1983
where plaintiff fails to allege defendant was personally involved in or directly responsible for
incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat
superior theory inapplicable in ' 1983 suits).
In the instant action, Plaintiff has not set forth any evidence, other than his own
conclusory statements, indicating that Defendant Gunn was directly involved in or personally
responsible for the alleged violations of his constitutional rights.
He has not produced copies of
any grievances submitted to Defendant Gunn, nor has he submitted factual statements relating to
dates, times or information contained in written or verbal statements given or told to Defendant
Conclusory statements relating to supposed contacts Plaintiff believes he might have
had with Defendant, without more detailed information, are simply not enough to survive
See Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th
Cir. 1993) (self-serving, conclusory statements without support are not sufficient to defeat
As such, Defendant Gunn’s motion for summary judgment will be
granted. See also, Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (noting that general
responsibility for supervising operations of prison is insufficient to establish personal
involvement required to support liability under ' 1983); Woods v. Goord, 1998 WL 740782, at
*6 (S.D.N.Y. October 23, 1998) (receiving letters or complaints does not render prison officials
personally liable under ' 1983). Plaintiff’s competing motion for summary judgment will,
therefore, be denied.
B. Defendant Duwe
Defendant Duwe asserts that she should be entitled to summary judgment on Plaintiff’s
medical claim against her because she never saw Plaintiff in person on the evening of August 1,
2014, and it was her understanding that the only issue he was having on that evening was a
smoking CPAP machine.
In other words, Defendant Duwe states that she was the “on call”
nurse that evening and that she was merely told by the correctional officer who called her on the
telephone that Plaintiff’s CPAP machine was broken and smoking, so she told the officer over
the phone to turn it off.
In her affidavit, Defendant Duwe testifies that she was never told that Plaintiff was
“coughing or choking or having trouble breathing” or in any way suffering from a physical issue.
Defendant Duwe states that had she known Plaintiff was suffering from a physical issue she
would have come to the Justice Center to examine Plaintiff in person.
Although Plaintiff makes much of the fact that Defendant Duwe knew that Plaintiff
suffered from sleep apnea and, thus, should have come to examine him that evening. Defendant
Duwe states that it is her understanding that many persons with sleep apnea are able to sleep
without a CPAP machine and are able to increase air pressure in their lungs by simply elevating
their heads higher in the bed.
She asserts that she had no information to indicate that Plaintiff
could not rest comfortably through the night without his CPAP machine.
Plaintiff has not produced any competing evidence that any negative medical information
relating to Plaintiff was given to Defendant Duwe, such that she should have been placed on
notice that Plaintiff was suffering from a serious medical need on the night of August 1, 2014.
As such, Defendant Duwe is entitled to summary judgment on Plaintiff’s claims for deliberate
indifference as he cannot prove that she knew he was suffering from a serious medical condition
on the night of August 1, 2014 and that she deliberately failed to treat it.
Alternatively, Defendant Duwe is entitled to qualified immunity as to Plaintiff’s
deliberate indifference claim.
Qualified immunity protects a public official from damage
actions if her conduct did not violate clearly established rights of which a reasonable person
would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
immunity is an immunity from suit rather than a mere defense to liability, it is effectively lost if a
case is erroneously permitted to go to trial.
Pearson v. Callahan, 555 U.S. 223 (2009).
Accordingly, the Supreme Court has repeatedly stressed resolving immunity questions at the
earliest possible stages in litigation. Id. “[T]he salient question ... is whether the state of the
law” at the time of an incident provided “fair warning” to the defendants “that their alleged
[conduct] was unconstitutional.” Tolan v. Cotton, __ U.S. __ , 134 S. Ct. 1861, 1866 (2104),
quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Analysis of Defendant Duwe’s qualified immunity defense requires the court to conduct a
One step is a determination of whether the actions of the defendant violated a
constitutional or statutory right, and the other is whether on the date of the subject incident, the
law was clearly established that the defendant’s actions violated the constitution. Shekleton v.
Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012).
Courts may conduct the inquiries in any
order, and need not reach a second inquiry if the first is decided in favor of the defendant.
Pearson, 555 U.S. at 241-42.
The court should be mindful of the Supreme Court’s
pronouncement that “[q]ualified immunity gives government officials room to make reasonable
but mistaken judgments and protects all but the plainly incompetent or those who knowingly
violate the law.” Messerschmidt v. Millender, __ U.S.__, 132 S. Ct. 1235, 1244 (2012).
As noted above, the court does not believe that Defendant Duwe violated Plaintiff’s
constitutional rights, as it appears that she had no actual knowledge that he was suffering from a
medical issue on the night Plaintiff’s CPAP machine broke. As a result, Defendant Duwe is
entitled to qualified immunity in this case.
Given the evidence in the record, Defendant Duwe’s Motion for Summary Judgment will
be granted, while Plaintiff’s competing Motion will be denied.
C. Defendants Rottnek and Wenger
Plaintiff’s request for summary judgment on his remaining claims for deliberate
indifference to his serious medical needs, against Defendants Rottnek and Wenger will be
At this time, without the benefit of discovery, Plaintiff has not provided the court with
sufficient evidence, other than his own conclusory statements, showing that Defendants Rottnek
and Wenger intentionally denied or delayed Plaintiff’s access to medical care, or intentionally
interfered with his medical treatment or with any medication that he was prescribed.
plaintiff has the burden to do so, his Motion for Summary Judgment must be denied.
R. Civ. P. 56(a) and (e).
For example, in order to prevail on summary judgment for a deliberate indifference claim
against Defendants Rottnek and Wenger, Plaintiff would first have to show that he actually
suffered from a “diagnosable medical need” requiring treatment, or one that is so obvious that
even a layperson would easily recognize the necessity for a doctor's attention. Camberos, 73
F.3d at 176 (quoting Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991); see also Simmons v.
Cook, 154 F.3d 805, 807–08 (8th Cir. 1997) (quoting Moore v. Jackson, 123 F.3d 1082, 1086
(8th Cir. 1997) (“A medical need is serious if it is obvious to the layperson or supported by
Although it appears that Defendants have not contested that Plaintiff suffered from sleep
apnea, there is a definite dispute in the record as to the other “diseases” or medical needs from
which Plaintiff states he suffered, as well as debate as to what the best treatment for each of the
“diseases” wase, and whether the treatment was actually provided by Defendants or not. See,
e.g., Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006) (“To show deliberate
indifference, [a plaintiff] must prove an objectively serious medical need and that prison officers
knew of the need but deliberately disregarded it.”).
Defendants Rottnek and Wenger dispute that they failed to treat Plaintiff’s medical
complaints properly, and they have provided affidavits and certain medical records to bolster
Indeed, Plaintiff’s own medical records, attached to his memoranda before this
court, show that treatment was provided to him at several opportunities while he was housed at
the St. Louis County Justice Center.
“[A] showing of deliberate indifference is greater than
gross negligence and requires more than mere disagreement with treatment decisions.@
Peitrafeso v. Lawrence County, S.D., 452 F.3d 978, 983 (8th Cir. 2006).
indifference is akin to criminal recklessness, which demands more than negligent misconduct.
Olson v. Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003). Rather, the subjective inquiry must
show disregard of “a known risk to the inmate's health.” Gordon, 454 F.3d at 862 (citing
Olson, 339 F.3d at 736).
“Whether a prison's medical staff deliberately disregarded the needs
of an inmate is a fact-intensive inquiry.” Nelson v. Shuffman, 603 F.3d 439, 448 (8th Cir.
“The inmate must clear a substantial evidentiary threshold to show the prison's medical
staff deliberately disregarded the inmate's needs by administering inadequate treatment.”
Nelson, 603 F.3d at 448.
Plaintiff has failed to meet this evidentiary threshold in this instance. His request for
summary judgment against Defendants Rottnek and Wenger on his claims for deliberate
indifference to his medical needs must therefore be denied.
Conditions of Confinement Claim Against Defendant Kramer
In the Amended Complaint, Plaintiff states that Defendant Kramer, the Floor Manager on
7D, is aware of and has taken his complaints regarding the unlawful conditions of confinement at
the Justice Center.3
Plaintiff asserts that Kramer knows that the food is served on “dirty trays,”
and that the showers are not properly cleaned and contain mold and mildew, and that the sheets
and towels contain mold and mildew and are not properly cleaned between each use by the
Plaintiff states that Defendant Kramer is also aware that the showers and toilets are
not cleaned properly and that this results in foot infections. Plaintiff asserts generally that these
conditions have resulted in adverse medical consequences for himself and other inmates at the
In order to establish an unlawful conditions of confinement claim in violation of the 8th
and 14th Amendments, a plaintiff must allege that he has been subjected to “extreme”
deprivations and been denied “minimal civilized measure of life's necessities.” See Hudson v.
McMillian, 112 S. Ct. 995, 999–1000 (1992); Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
The focus in a “conditions of confinement” case often falls on the length of exposure to the
purported unsanitary conditions and the level of alleged filthiness the inmate was supposedly
exposed to. See Owens v. Scott County Jail, 328 F.3d 1026, 1027 (8th Cir. 2003); Whitnack v.
Douglas Cnty., 16 F.3d 954, 957 (8th Cir. 1994) (length of time required for conditions to be
unconstitutional decreases as level of filthiness increases).
Plaintiff attempts to bring forth the claims of other inmates in this action, noting that some of the
inmates on his floor developed infections or other health issues as a result of what he believes to be
poor conditions of confinement and/or laying on the floor. A litigant may bring his own claims to
federal court without counsel, but not the claims of others. See 28 U.S.C. § 1654; see also 7A
Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 1769.1 (“class representatives
cannot appear pro se.”). As there is no evidence that Plaintiff suffered from any health issues
from the alleged poor conditions of confinement, nor is there any evidence that Plaintiff had to lay
in a pod on the floor of a cell, the court will disregard Plaintiff’s statements on these matters.
Furthermore, the court will disregard Plaintiff’s statements relative to the handicap showers, as
Plaintiff has not brought an Americans with Disabilities Act (ADA) claim before this court.
Defendant Kramer, Deputy Superintendent and Unit Manager of the Seventh Floor of the
Justice Center, has moved for summary judgment on Plaintiff’s conditions of confinement claim,
attaching an affidavit to his Motion certifying that, to the best of his knowledge, the showers and
food service trays were properly cleaned between each use.
Specifically, Defendant Kramer states that inmates are assigned to clean the showers at
the Justice Center twice each day, at approximately 12:30 and again sometime between 8:30 and
He claims that the inmates use brushes and a product called Crew, a non-acid
bathroom disinfectant cleaner to clean the showers with. Kramer reports that inmates are
required to clean their own individual toilets in their cells with brushes and cleaning solutions
that are supplied by the Justice Center.
Kramer asserts that he responds to complaints about cleanliness and regularly walks by
the shower area and has never seen any mold on the floor in the shower area where inmates
would have to step. He acknowledges that he did at one time notice some mold on grout
between tiles in the shower area, but he ordered that these areas be scrubbed by inmates
immediately after seeing the mold in those areas.
Kramer reports in his affidavit that in April of 2014, two supervisory Justice Department
personnel inspected the showers in Areas 7B and C and found some soap scum on the bottom of
the showers, some mold confined to the seams of the showers, especially in the handicap shower,
steel plates supporting the handrail with rust build-up, and a need for paint on the vents.
result of the inspection, a job request was made to have the Department of Public Works remove
the rust and paint the steel plates and vents.
Defendant Kramer states that at that time, the inmates were also provided with a more
potent disinfectant cleaner called Foamy Q and A to remove any soap scum and residual mold.
Kramer states that the structural improvements were made in November of 2014 and that the
shower curtains were well cleaned with disinfectant in June of 2014.
Kramer states that a drain
was fixed in the day room of Unit 7D in June of 2014 as well.
Defendant Kramer states that he did receive a verbal complaint from Plaintiff relating to
the cleanliness of the showers and shower curtains, although neither Plaintiff nor Defendant
Kramer has indicated the date upon which this complaint occurred. Defendant states that he
asked a correctional officer to report back to him on the conditions of the showers after
Defendant states that Plaintiff never filed a written grievance about the
showers, nor did he complain that he was suffering from a medical issue as a result of the
cleanliness of the showers or complain about the odors relating to the showers.
Defendant Kramer further states that towels are regularly laundered with a detergent
provided to the inmates called Campaign, and clean towels are stacked in a closet for use in the
Defendant Kramer states in his affidavit that “inmates are not required to use
unwashed, mildewed towels,” and that all inmates receive “two clean sheets once a week.”
fact, Plaintiff was assigned a third sheet every week because he had an extra mattress that he was
using as a wedge.
Last, Defendant Kramer explains that the food trays are run through a dishwasher after
each use. He states that the Justice Center was last audited in June 2013 by the American
Correctional Association and at that time it met the Association’s standards for cleanliness.
In response to Defendant Kramer’s affidavit testimony, Plaintiff has responded in a
conclusory fashion attempting to refute Defendant Kramer’s testimony with his own unbolstered
and, at times, unsworn statements.
In essence, Plaintiff complains that the disinfectant soap
used to clean the showers and the toilets are ineffective, and he asserts that he does not believe
that the soap used for the dishwasher and the washing machine is “industrial grade.”
words, Plaintiff believes that the cleaning supplies given to the inmates for cleaning are
Plaintiff also complains that the disinfectant he was supposed to use to clean his
own toilet in his cell makes it hard for him to breathe, however, he does not comment on whether
he reported this information to anyone at the Justice Center. The court notes that Plaintiff has
not produced any evidence or competing affidavit testimony showing that the cleaning supplies
or daily cleaning routine is insufficient or somehow substandard, such that he and the other
inmates in Areas 7B and C were subject to extreme deprivations and denied “minimal civilized
measure of life's necessities,” such as a clean shower and good and sustainable food.
Without actual evidence to refute Defendant Kramer’s testimony, Plaintiff cannot defeat
Defendant’s summary judgment motion.
See Reed v. Lear Corp., 556 F.3d 674, 678 (8th Cir.
2009) (“To overcome a motion for summary judgment, a Plaintiff may not merely point to
unsupported self-serving allegations, but must substantiate allegations with sufficient probative
evidence that would permit a finding the Plaintiff’s favor.”).
Defendant Kramer has produced enough evidence, by way of his affidavit, to show that
none of the conditions to which Plaintiff complains of actually arose to constitutional
Kramer’s affidavit shows that the showers were cleaned at least twice per day with
some sort of cleaning solvent, and a more potent bathroom cleaner was used in April of 2014,
with a vigorous cleaning given to the shower curtains in June of 2014.
In Whitnack, the court held that even conditions such as a filthy cell may be tolerable for
a few days and yet intolerably cruel for weeks or months.
16 F.3d 954, 957 (8th Cir. 1994); see
also, Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989) (two-year period).
Thus, courts have
considered a combination of factors, including time and conditions, to decide what level of
unclean conditions are unconstitutional. See, e.g., Tokar v. Armontrout, 97 F.3d 1078 (8th Cir.
The court finds that the shower cleaning convention in Plaintiff’s housing unit was more
than adequate under the Constitution.
In Wishon v. Gammon, 878 F.2d 446 (8th Cir. 1992),
inmates given cleaning supplies three times a week were not subject to unconstitutional
conditions. In Beaulieu v. Ludeman, 690 F.3d 1017 (8th Cir. 2012), the court specifically held
that two daily bathroom and shower cleanings met constitutional standards despite the regular
appearance of feces and urine on the floor as a result of some of the detainees’ tendency to soil
the bathroom area.
The court further notes that Plaintiff has not produced any evidence of a specific length
of time that he purportedly suffered from the alleged unsanitary conditions of confinement.
Defendant Kramer has produced evidence that the bathrooms and towels and trays were cleaned
daily (or more), the unsanitary conditions could not have lasted more than 24 hours, too short of
a time to exceed a due process violation. See Smith v. Copeland, 87 F.3d 265, 269 (8th Cir.
Furthermore, Defendant Kramer’s affidavit establishes that he cannot be liable for many
of the “conditions of confinement claims” of which Plaintiff complains.
A prison official cannot be found 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.
Tribble v. Ark. Dept. of Human Servs., 77 F.3d 268, 270 (8th Cir. 1996) (quoting Farmer v.
Brennan, 511 U.S. 825 (1994)).
Defendant Kramer states that he had no knowledge of any medical issues pertaining to
Plaintiff’s feet, and he believed that the food trays and linens were being washed with sufficient
frequency and in a reasonably sanitary manner.
Alternatively, the court finds that Defendant Kramer is entitled to qualified immunity as
to Plaintiff’s conditions of confinement claim.
There is simply no evidence that Defendant
Kramer personally violated Plaintiff’s constitutional rights, and the above-cited authority
establishes that Plaintiff was not subjected to unconstitutional conditions as a matter of law.
Defendant Kramer is entitled to summary judgment on Plaintiff’s conditions of
confinement claim, and Plaintiff’s Motion for Summary Judgment against Defendant Kramer
must be denied.
IT IS HEREBY ORDERED that Defendant Kramer’s Motion for Summary Judgment
[Doc. #41] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motions for Summary Judgment related to
defendant Kramer [Doc. #62 and #70] are DENIED.
IT IS FURTHER ORDERED that Defendant Duwe’s Motion for Summary Judgment
[Doc. #53] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment related to
Defendant Duwe [Doc. #68] is DENIED.
IT IS FURTHER ORDERED that Defendant Gunn’s Motion for Summary Judgment
[Doc. #56] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion related to Defendant Gunn [Doc.
#77] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment related to
Defendant Rottnek [Doc. #75] is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment related to
Defendant Wenger [Doc. #67] is DENIED without prejudice.
IT IS FURTHER ORDERED that Defendant Kramer’s Motion for Extension of Time
to Respond to Plaintiff’s Motion for Summary Judgment [Doc. #81] is GRANTED.
IT IS FURTHER ORDERED that Defendant Kramer’s Motion for Leave to Respond to
Plaintiff’s Motion for Summary Judgment [Doc. #90] is GRANTED.
IT IS FURTHER ORDERED that Defendant Duwe’s Motion for Extension of Time to
Respond to Plaintiff’s Motion for Summary Judgment [Doc. #93] is GRANTED.
A separate Partial Judgment will be entered in accordance with this Memorandum and
Dated this 17th day of July, 2015
/s// Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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