Tenner v. Jackson et al

Filing 47

ORDER signed by Judge J P Stadtmueller on 6/11/2019: DISMISSING Defendant Jackeline Velez from this action; GRANTING 21 Defendants' Motion for Summary Judgment; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Rondale D Tenner at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONDALE D. TENNER,
Plaintiff,
v.
BENJAMIN JACKSON, JACKELINE
VELEZ, and MONIQUE STACKERWILLIAMS,

Case No. 18-CV-232-JPS

ORDER

Defendants.
On February 28, 2018, the Court screened Plaintiff’s pro se complaint
and permitted him to proceed on a claim of inadequate conditions of
confinement, in violation of his Eighth Amendment rights. (Docket #8). On
October 1, 2018, Defendants moved for summary judgment. (Docket
#21).That motion is now fully briefed. For the issues explained below, the
Defendants’ motion for summary judgment will be granted, and the case
will be dismissed.
1.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that 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.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The

court construes all facts and reasonable inferences in the light most
favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691
(7th Cir. 2010). The party opposing summary judgment “need not match
the movant witness for witness, nor persuade the court that [his] case is
convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
2.

RELEVANT FACTS1
Plaintiff is an inmate at Green Bay Correctional Institution (“GBCI”)

who was temporarily housed at Milwaukee County Jail (“MCJ”) from
January 18 to January 23, 2018 so that he could attend court proceedings in
Milwaukee. He was assigned to Pod 3A, which is general population intake
housing. Defendant Benjamin Jackson (“Jackson”) was a correctional officer
who worked in Pod 3A on January 21, 2018. Defendant Monique StackerWilliams (“Stacker-Williams”) was a correctional officer who worked in
Pod 3A on Monday, January 22, 2018.2
In light of the Seventh Circuit’s mandate that “pro se submissions are to be
liberally construed,” combined with that requirement that facts on summary
judgment be viewed in the light most favorable to the non-movant (who, in this
case, is pro se), the Court declines Defendants’ request that it disregard Plaintiff’s
response to their proposed findings of facts because it does not comply perfectly
with the strictures of Civil Local Rule 56(b)(2)(B). See Blake v. United States, 841 F.2d
203, 205 (7th Cir. 1988).
1

Plaintiff acknowledges that Jackeline Velez is not a proper party to the
action, (Docket #32 at 1), therefore she will be dismissed. Plaintiff argues that he
was denied the opportunity to amend his complaint to include the correct
defendant because he was not told that Velez was a woman until the discovery
2

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Pod 3A is filled with inmates who are staying short-term at MCJ. The
schedule in Pod 3A runs as follows: the day begins at 7:00 a.m., at which
point inmates are permitted to leave their cells and/or clean their cells. The
day room of the pod is opened shortly thereafter for breakfast and activities.
Inmates may spend most of their time in the day room, but must return to
their cells three times throughout the day for counts and officer shift
changes: from 11:00 a.m. to 12:00 p.m.; 1:50 p.m. to 3:00 p.m., and 5:00 p.m.,
to 6:00 p.m. They are required to return to their cells for the night at 9:45
p.m. Inmates typically eat meals in the day room unless there are safety or
security concerns that require the day room to close. In total, inmates are
permitted to spend roughly half of the day outside of their cells.
On January 21 at around 7:30 a.m., Plaintiff informed Jackson that
his cell’s toilet was running. At 10:14 a.m., Lieutenant David Steel, who was
conducting rounds, re-set the toilet, which seemed to fix the issue. Shortly
thereafter, however, Plaintiff discovered that the toilet would not flush.
Toilets at MCJ can be flushed via motion sensor by the inmate in the cell, or
remotely via computer by the correctional officer in the pod. Plaintiff asked
Jackson to flush the toilet via computer, and Jackson complied. However,
instead of flushing down, the water rose. At some point during the day,
when inmates were returned to their cells, Plaintiff slipped and fell in the
overflowed toilet waste.
Jackson saw Plaintiff several times over the course of the day. The
parties dispute whether Plaintiff told Jackson that his toilet was not

deadline had passed, but this is unpersuasive. Id. at 10. Defense counsel provided
Defendants’ full names on March 20, 2018, a full month before the deadline to
amend pleadings, (Docket #12 and #13), and Plaintiff could have requested further
information about Defendant Velez any time before the close of discovery.

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working. (Docket #33 ¶ 52). In any case, Jackson does not recall this, and
concedes that the pod can be very busy during his shift, and he may have
been distracted and forgotten. (Docket #22 ¶¶ 53, 65). While conducting
rounds, Jackson did not observe Plaintiff’s toilet overflow. He did not
observe excrement on the floor of Plaintiff’s cell, nor was he aware that
Plaintiff had slipped and fallen in it. His shift ended 2:20 p.m., and he
debriefed the second shift officer before leaving for the day.
The next morning, on January 22, Plaintiff informed StackerWilliams that his toilet was not flushing. Stacker-Williams attempted to
flush the toilet via computer, but this did not work. When Stacker-Williams
checked on Plaintiff’s toilet, it was not overflowing. Plaintiff explains that
he had cleaned the soiled floor himself. Stacker-Williams states that if she
had seen the toilet overflow, she would have moved Plaintiff to a different
cell and called for a bio-hazard crew to clean up. At 11:15 a.m., she emailed
correction officers Joel Neumann (“Neumann”), who was assigned to
maintenance matters, and informed him that the toilet in Plaintiff’s cell was
not flushing. At 12:53 p.m., Neumann submitted a work order to the
facilities department to address the issue. At 2:16 p.m., a plumber arrived
to fix the toilet, and the issue was resolved. On January 23, Plaintiff was
transported back to GBCI. Five days later, on January 28, he experienced
flu-like symptoms and submitted a request for health services. No
conclusions were ever drawn regarding whether Plaintiff’s symptoms
resulted from exposure to the clogged toilet. Plaintiff admits that it was only
a “possibility” that his symptoms were from the conditions of the cell at
MCJ. (Docket #33 ¶ 74).

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3.

ANALYSIS
The Supreme Court has interpreted the Eighth Amendment as

requiring a minimum standard for the treatment of inmates by prison
officials: prison conditions must not, among other things, involve “the
wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S.
337, 347 (1981). An inmate’s constitutional challenge to the conditions of his
confinement has an objective element and a subjective element. Whitman v.
Nesic, 368 F.3d 931, 934 (7th Cir. 2004).
First, a prisoner must show that the conditions at issue were
“sufficiently serious” so that “a prison official’s act or omission. . .result[s]
in the denial of the minimal civilized measure of life’s necessities.” Farmer
v. Brennan, 511 U.S. 825, 834 (1994) (citations and quotations omitted).
Prison conditions may be “harsh and uncomfortable without violating the
Eighth Amendment’s prohibition against cruel and unusual punishment.”
Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). The Eighth Amendment
“does not require prisons to provide prisoners with more salubrious air,
healthier food, or cleaner water than are enjoyed by substantial numbers of
free Americans.” Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001). Rather,
“extreme deprivations are required to make out a conditions-ofconfinement claim.” Turner v. Miller, 301 F.3d 599, 603 (7th Cir. 2002)
(citations and quotations omitted); Hudson v. McMillian, 503 U.S. 1, 9 (1992).
Second, even if conditions were sufficiently severe, the prisoner
must also demonstrate that prison officials acted with “deliberate
indifference” to the risk created by those conditions. Wilson v. Seiter, 501
U.S. 294, 302 (1991); Whitman, 368 F.3d at 934. “Deliberate indifference”
means that the official knew that the inmate faced a substantial risk of
serious harm from the condition in question, and yet disregarded that risk
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by failing to take reasonable measures to address it. Farmer, 511 U.S. at 847;
Johnson v. Phelan, 69 F.3d 144, 149 (7th Cir. 1995); Grieveson v. Anderson, 538
F.3d 763, 777 (7th Cir. 2008) (deliberate indifference arises when prison
officials “ac[t] with the equivalent of criminal recklessness”) (citations and
quotations omitted). It is not enough for the inmate to show that the official
acted negligently or that he or she should have known about the risk. Pierson
v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004); Haley v. Gross, 86 F.3d 630, 641
(7th Cir. 1996). Instead, the inmate must show that the official received
information from which the inference could be drawn that a substantial risk
existed, and that the official actually drew the inference. Pierson, 391 F.3d at
902. That is, “a plaintiff must establish that the official knew of the risk (or
a high probability of the risk) and did nothing.” Pope v. Shafer, 86 F.3d 90,
92 (7th Cir. 1996). In the end, it is “obduracy and wantonness, not
inadvertence or error in good faith, that characterize the conduct prohibited
by [the Eighth Amendment.]” Whitley v. Albers, 475 U.S. 312, 319 (1986); Cty.
of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“[T]he Constitution does not
guarantee due care on the part of state officials; liability for negligently
inflicted harm is categorically beneath the threshold” of constitutional
protections).
While it is “certainly unpleasant” that a toilet might be clogged for a
day, this alone does not rise to the level of a constitutional violation. Sain v.
Wood, 512 F.3d 886, 894 (7th Cir. 2008) (finding no constitutional violation
for foul smell and cockroach infestation); cf. Johnson v. Pelker, 891 F.2d 136,
139–40 (7th Cir. 1989) (finding a potential constitutional violation where a
prisoner alleged that she was held for three days in a segregation cell that
was smeared with human feces and had no running water). Plaintiff has
not provided evidence that the toilet overflowed, much less than he slipped
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in it and was forced to clean the mess himself.3 Moreover, unlike the
prisoner’s allegations in Johnson, in this case Plaintiff was permitted to leave
his cell, and the issue was resolved in a day. Given the brevity of the
unpleasant condition and the lack of evidence that the toilet in fact
overflowed, a reasonable jury could not find that these conditions of
confinement are unconstitutional.
Moreover, even if Plaintiff had provided evidence that his cell had
excrement all over the floor, there is no evidence that either Jackson or
Stacker-Williams was deliberately indifferent to it because there is no
evidence that either defendant was aware of the problem. Furthermore,
while Jackson concedes that he may have forgotten about Plaintiff’s
complaint due to the busy nature of his shift, mere negligence does not
support a finding of deliberate indifference. Collignon, 163 F.3d at 988.
Additionally, the facts demonstrate that Stacker-Williams responded
reasonably to the risk by notifying facilities management and securing a
plumber to rectify the issue within hours of becoming aware that the toilet
was clogged. In view of these facts, no reasonable jury could find that either
defendant acted with deliberate indifference.
4.

CONCLUSION
In light of the foregoing, Defendants’ motion for summary judgment

must be granted, and the case dismissed with prejudice.

In his opposition, Plaintiff claims that he was denied toilet facilities and
that he was unable to drink water while locked in his cell. (Docket #32 at 9). These
conditions were not alleged in the complaint, and there is no evidence in the record
to support the allegations. Therefore, the Court will not consider them in its
assessment of the conditions of confinement.
3

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Accordingly,
IT IS ORDERED that Defendant Jackeline Velez be and the same is
hereby DISMISSED from this action;
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Docket #21) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 11th day of June, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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