Killebrew, Shondell v. Smith, Judy et al

Filing 54

ORDER denying plaintiff's 32 Motion for Summary Judgment; granting defendants' 34 Motion for Summary Judgment. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge James D. Peterson on 3/28/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SHONDELL KILLEBREW,
Plaintiff,
v.

OPINION & ORDER

HANS KUSTER and TIM IKERT,

15-cv-52-jdp

Defendants.
Plaintiff Shondell Killebrew, a Milwaukee resident formerly incarcerated at the
Oshkosh Correctional Institution, brings Eighth Amendment and state-law negligence claims
against defendants Hans Kuster and Tim Ikert for failing to do anything to fix the cold
temperatures Killebrew was forced to endure in his cells. Each side has filed a motion for
summary judgment. Dkt. 32 and 34. After considering the parties’ submissions, I conclude
that Killebrew fails to provide evidence showing that defendants were deliberately indifferent
to a serious risk of harm from the temperature in his cells, and that Killebrew failed to
comply with the notice-of-claim statute for his negligence claims. I will deny his motion for
summary judgment, grant defendants’ motion, and dismiss the case.

FINDINGS OF FACT
I draw the following facts from the parties’ summary judgment submissions.1

I gave the parties extra time to respond to each other’s summary judgment motions after
Killebrew withdrew a motion to voluntarily dismiss the case. But Killebrew did not respond
to defendants’ proposed findings, and he did not file formal proposed findings of fact, so
defendants did not file responsive findings. Construing Killebrew’s pro se filings liberally, I
glean his version of the facts from his brief, which tracks his version of events in his verified
complaint.
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Plaintiff Shondell Killebrew is currently a Milwaukee resident, but at the times
relevant to this lawsuit, he was an inmate at the Oshkosh Correctional Institution (OCI).
Defendant Hans Kuster is a captain at OCI. Defendant Tim Ikert is the building and grounds
superintendent at OCI.
This case concerns the temperature of Killebrew’s cells in the Restrictive Housing Unit
(RHU) at OCI. Defendants explain that the RHU is what was formerly referred to as the
segregation unit. Killebrew was initially moved there on October 10, 2014, because of a
conduct report filed against him. While he was in “temporary lockup status” that day, he
made threats of self-harm, so he was moved to observation status in cell 102, near the
officers’ station on the north side of the building.2 On October 13, he was moved out of
observation to cell 28, which was on the part of the south tier closest to the middle of the
unit, also close to the officers’ station. Killebrew stayed in cell 28 until November 7, 2014,
when he was moved to another building.
All inmates in RHU are provided the same amount of clothing except for inmates in
observation or control statuses. In observation status, clothing and property is determined by
psychological unit staff. Beginning on October 13, 2014, Killebrew was in an RHU
segregation cell and not on observation or control status. Inmates in RHU status are issued
one pair of socks, one pair of undershorts, one t-shirt, one orange shirt, one pair of orange
pants, and one pair of soft-soled shoes. All non-control-status or non-observation-status
inmates in RHU are also provided two blankets along with their bedding. Property for
inmates in observation or control status is determined on a case-by-case basis. Defendants

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Defendants submit a layout of the “S Building” that shows the location of each cell.

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also state that it is RHU practice to provide inmates with an additional heavy “wool-like”
blanket from October to April.
The RHU temperature is controlled by a computerized, automated heating system.
The RHU is divided into heating zones containing four to five rooms. Air handlers supply 65degree air to each zone, and booster coils adjust the temperature according to pre-set
temperature points for each zone. In October and November 2014, the pre-set temperature
for each zone in the segregation building at Oshkosh Correctional Institution was 71 degrees.
If an inmate’s cell is not the proper temperature, the inmate should advise security
staff. Staff will take the temperature in the inmate’s room. If the thermometer reads between
68 to 72 degrees, the room is within the normal temperature rage. If the temperature does
not fall within that range, staff will submit a work order.
Sean McWane (the “HVAC/Refrigeration Specialist-Advanced” at OCI, who is not a
defendant in this case) has a computer in his office showing a layout of each building, the
pre-set temperatures, and the actual temperatures of each zone. McWane receives an
“alarm/notification” if a temperature drops below 68 degrees or above 79 degrees. McWane
does not recall receiving an alarm in October or November 2014.
Killebrew states that he was “subjected to incessant frigid temperatures.” Dkt. 32, at
3. Killebrew says that he told defendant Kuster about the problem on October 10, 2014, by
explaining that the temperature made the pieces of metal lodged in his back cold (he has
bullet fragments in his back from being shot years ago and continues to suffer from numbness
and weakness in his legs and, to a lesser degree, his hands) and “would eventually leave [him]
in pain.” Id. Kuster says that he had a conversation with Killebrew at some point while he
was in observation in cell 102, and that Killebrew said that his feet were cold. Kuster says

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that he responded by telling Killebrew that, because of his observation status, Killebrew
would have to talk to the psychologist about getting a blanket. The parties do not explain if
they are referring to the same conversation.
Killebrew says he brought the issue up again at his October 14 disciplinary hearing
before Kuster and Ikert (by this point, Killebrew was out of observation status and in an
RHU segregation cell), stating that the temperature was starting to cause him pain, but
Kuster told him that it was not the proper time to raise the issue. Killebrew also states that
he filled out an “Interview/Information Request” form addressed to Ikert on October 14,
stating, “I have address[ed] this to you in regard to the inhuman conditions of the cold
showers and temperatures in the cell and is wondering what’s going on?” Dkt. 32-2.
Killebrew says that he never heard back from Ikert.
Killebrew says that he and other inmates “filed complaints and continued to verbalize
the extreme cold that we were wantonly subjected to,” Dkt. 32, at 3. But to whom these
complaints were made, he does not say. On October 31, Correctional Sergeant Jason Mentzel
(who is not a defendant) came to check the temperature. According to Killebrew, Mentzel
said that the temperature was 78 degrees in the hallway. Inmates told Mentzel to measure
the temperature in one of the cells. “Not even 5 minutes later,” Mentzel retrieved the
thermometer and stated that the temperature was 64 degrees. Id. at 4.
Defendants’ version of the events is as follows: On October 31, Mentzel responded to
the complaint an inmate housed on the south tier near Killebrew. Mentzel brought a
thermometer to an empty cell in the area and left it there for 15 minutes. Mentzel does not
recall the precise reading of the thermometer, but he does remember that the temperature
was under 68 degrees. Mentzel contacted maintenance. The heat was adjusted by

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maintenance immediately, by adjusting the dampers to make the cells warmer until the
system could be properly reset. Approximately one hour after the work was completed, the
inmates told Mentzel that their cells were at an acceptable level. Later that evening, an
inmate on the north side of the building said that his cell was cold, so Mentzel wrote a work
order for maintenance staff to check the north side when they were performing repairs to the
south side. That as the only work order in the prison records related to temperature for
October and November 2014. On November 3, 2014, a response to the work order was
issued, stating “Reset tripped pump. Operational Ok.” That pump was in a different location,
involving a different air handler, from where Killebrew was located.
Based on his personal observations, defendant Kuster believes that during October
and November 2014, the temperature in the south tier of the RHU was at or around the set
temperature of 68 to 72 degrees. He does not remember ever feeling uncomfortable, or
wearing anything other than his usual work uniform.3
Killebrew was seen by nursing and psychiatric staff at least ten times in October and
November 2014, but they noted no complaints from Killebrew about his cell being cold or
about physical symptoms from being cold.

ANALYSIS
To succeed on a motion for summary judgment, the moving party must show that
there is no genuine issue of material fact and that he is entitled to judgment as a matter of
Defendants submit additional proposed findings about Killebrew failing to raise the
temperature concerns in meetings with medical and psychological staff, and about him failing
to raise these concerns in the health service requests he filed about other issues. But those
findings are not complete because the exhibits they cite to support them were not included in
defendants’ evidentiary materials. I cannot consider those unsupported findings.
3

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law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue
of material fact arises only if sufficient evidence favoring the nonmoving party exists to
permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc., 414
F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary
judgment record must be drawn in the nonmoving party’s favor. Baron v. City of Highland
Park, 195 F.3d 333, 338 (7th Cir. 1999). If the nonmoving party fails to establish the
existence of an essential element on which that party will bear the burden of proof at trial,
summary judgment for the moving party is proper. Celotex, 477 U.S. at 322.
A. Eighth Amendment
The Eighth Amendment requires the government to “provide humane conditions of
confinement; prison officials must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of
inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S.
517, 526-27 (1984)). Conditions of confinement that expose a prisoner to a substantial risk
of serious harm are unconstitutional. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
To demonstrate that prison conditions violated the Eighth Amendment, a plaintiff
must allege facts that satisfy a test involving both an objective and subjective component.
Farmer, 511 U.S. at 834. The objective analysis focuses on whether prison conditions were
sufficiently serious so that “a prison official’s act or omission results in the denial of the
minimal civilized measure of life’s necessities,” id., or “exceeded contemporary bounds of
decency of a mature, civilized society.” Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir.
1994). The subjective component requires an allegation that prison officials acted wantonly
and with deliberate indifference to a risk of serious harm to the plaintiff. Id. “Deliberate

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indifference” means that the defendant knew that the plaintiff faced a substantial risk of
serious harm and yet disregarded that risk by failing to take reasonable measures to address
it. Farmer, 511 U.S. at 847. Thus, it is not enough for the plaintiff to prove that a defendant
acted negligently or should have known of the risk. Pierson v. Hartley, 391 F.3d 898 (7th Cir.
2004). He must show that the official received information from which an inference could be
drawn that a substantial risk existed and that the official actually drew the inference. Id. at
902.
Prisoners have a right to “protection from extreme cold.” Dixon v. Godinez, 114 F.3d
640, 642 (7th Cir. 1997). For Eighth Amendment claims based on low cell temperature,
courts examine factors such as “the severity of the cold; its duration; whether the prisoner has
alternative means to protect himself from the cold; the adequacy of such alternatives; as well
as whether he must endure other uncomfortable conditions as well as cold.” Id. at 644.
For Killebrew to defeat defendants’ motion for summary judgment on his Eighth
Amendment claims, he has to set forth facts that could lead a reasonable jury to conclude two
things: (1) he faced a substantial risk of serious harm from the cold; and (2) defendants were
aware of it yet chose not to help him. For him to prevail on his own motion for summary
judgment, the facts need to show that no reasonable jury could conclude anything other than
that he faced the risk of harm and that defendants were deliberately indifferent, meaning that
there does not need to be a trial because no jury could reasonably find for defendants.
The facts here fall far short of conclusively demonstrating that defendants violated the
Eighth Amendment. So I will deny Killebrew’s own motion for summary judgment. The
question whether Killebrew has provided enough evidence of deliberate indifference to get to
trial is a closer call.

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Killebrew adequately places in dispute whether defendants were aware of his
complaints about the temperature of his cells. He says that he spoke with Kuster twice about
the problem and sent an interview request form to Ikert. Neither Kuster nor Ikert took action
on Killebrew’s statements. I also conclude that it is undisputed that the cells were not at 68
to 72 degrees for at least part of the time. Defendants concede that a cell near Killebrew’s
was below 68 degrees on October 31, 2014, and that there was some maintenance work
performed on both the south and north tiers around that time in response to complaints of
cold cells.
But that does not mean that Killebrew actually faced an objective risk of substantial
harm, or that were deliberately indifferent to that risk. To start with, there is the question
about what a reasonable jury could conclude the temperature actually was in Killebrew’s cells.
Killebrew is quite vague about how cold it really got. He calls the temperatures “frigid” and
“inhumane,” but those are subjective terms that have to be taken into context with the other
undisputed facts. The only objective measurement taken of Killebrew’s area during the
month in question was on October 31, 2014, when Mentzel obtained a reading of 64 degrees
Fahrenheit.
In my order screening Killebrew’s complaint, I stated that “[f]rom these allegations it
is difficult to tell whether [Killebrew] is saying the cell temperature was 64 degrees, or that
the thermometer reading would have continued to drop had it been left in the cell.” Dkt. 12,
at 2. Nothing in Killebrew’s summary judgment materials makes his version of the facts
clearer now. In his brief, he states, “Seeing that the temperature had rapidly dropped 14
degrees within a 5 minute period along with the inclement weather outside (being at or near

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below zero) constitute inhumane condition,” Dkt. 32, at 4.4 From this statement, I cannot
tell whether this means Killebrew is saying the temperature was actually lower than 64
degrees. But later in his brief he says “ . . . the temperatures were found to be in the mid 60’s
[less than state standards] . . . ,” Dkt. 32, at 6 (brackets in original), and in his November
2014 inmate grievance about the problem, he stated that Mentzel saw “that the
[temperature] in the corridor (78°) was a lot higher than the [temperature] in our cells (64°),”
which seems to show that Killebrew agrees with the 64-degree reading. And nothing in his
materials suggests that the cell temperature on October 31 was different from the rest of the
month. Because it is Killebrew’s burden to establish the objective serious risk of harm to
prove his Eighth Amendment claim, I conclude that he has at best shown that the
temperature was about 64 degrees.
This is insufficient to maintain an Eighth Amendment claim against defendants.
Killebrew states that the temperatures were below “state standards,” which is true:
defendants say that if the temperature drops below 68 degrees, the HVAC system’s alarms go
off and maintenance looks into the problem.5 But violations of this standard do not in
themselves violate the United States Constitution. Thompson v. City of Chicago, 472 F.3d 444,
454 (7th Cir. 2006) (“[Section] 1983 protects plaintiffs from constitutional violations, not

Defendants say that they do not remember the weather being particularly cold that month.
My own research into public weather data suggests that it did not get as cold as Killebrew
says: a search of the weather history at the Oshkosh airport shows a low of 24 degrees during
the month. See https://www.wunderground.com/history/airport/KOSH/. In any event, the
actual temperature outside is irrelevant for purposes of this opinion because any normal lateautumn weather in Oshkosh would likely be cold enough to require the heat to be turned on.
The important question is how cold the cells actually were, not how cold it was outside.
4

The alarm system apparently did not catch the 64-degree temperature in the RHU cell as
measured by Mentzel, however.
5

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violations of state laws or, in this case, departmental regulations and police practices.”
(quotations omitted)).
A temperature in the mid-60s is not as severe as the cold temperatures that courts of
this circuit have previously determined could support an Eighth Amendment claim. See, e.g.,
Dixon, 114 F.3d at 643 (temperature averaged about 40 degrees and ice formed on interior
walls of cell); Henderson v. DeRobertis, 940 F.2d 1055, 1057-58 (7th Cir. 1991) (heating
system failure and broken windows led prison temperatures to fall below freezing; “‘it was
cold enough to see your breath.’”; Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987)
(“Lewis’ affidavit, which accompanied the pro se complaint, claimed that the temperature at
times fell to between 52 and 54 degrees.”); compare with Armstrong v. Brann, No. 04-C-0884,
2006 WL 3422570, at *6 (E.D. Wis. Sept. 25, 2006) (The temperature in the jail was
between 65 and 68 degrees, and never lower than 60. . . . Based on the foregoing, it does not
appear that the cold temperatures in the plaintiff’s cell, in isolation, constitute a sufficiently
serious deprivation.”).
And it is not just the temperature that determines whether the conditions violate the
Eighth Amendment. Many cold-cell cases involve prisoners being placed in cells with no
clothing or bedding. See, Murphy v. Walker, 51 F.3d 714, 721 (7th Cir. 1995) (“Murphy’s
contention that he was confined to a cold cell without clothes and heat in the middle of
November is a sufficient allegation of inadequate heat and shelter.”); Gillis v. Litscher, 468
F.3d 488, 490 (7th Cir. 2006) (prisoner forced to sleep naked in cold cell had to walk around
14 hours a day to keep warm). For all but the first three days of his time in the RHU,
Killebrew received the standard clothing and bedding given to the segregation inmates there,
which included two blankets and a thicker winter blanket. Given the relatively tolerable

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temperature in the cells and the items prisoners had in their cells to help them stay warm, I
conclude that a no reasonable jury could conclude that defendants were deliberately
indifferent to a serious risk of harm to Killebrew. Dixon, 114 F.3d at 644 (“It is of course true
that just because low temperature forces a prisoner to bundle up indoors during the winter
does not mean that prison conditions violate the Eighth Amendment.”).
In the argument section of his brief, Killebrew says that he ended up having
“excruciating” pain, in his back, legs, feet, and hands, and that the cold exacerbated his
numbness and weakness from his old injury. But he does not say that he told defendants
about this amount of pain. And given that his symptoms are connected to his medical
problems, the appropriate place to have forwarded concerns about his medical condition
would have been to medical staff, but there is nothing in the record suggesting that Killebrew
raised these concerns to medical personnel, nor is he proceeding on claims against medical
staff. The non-medical prison official defendants in this case were tasked with making sure
the cells were reasonably warm, not treating Killebrew’s medical problems. Accordingly, I will
grant defendants’ motion for summary judgment on this claim.
B. Negligence
Killebrew also brings negligence claims against defendants under Wisconsin law. I will
retain jurisdiction over this claim because it clearly has no merit and it would be inefficient to
leave it open for a later state court action. See Korzen v. Local Union 705, 75 F.3d 285, 288-89
(7th Cir. 1996) (“The normal practice of course is to relinquish jurisdiction over a
supplemental claim when the main claim is dismissed before trial, but if the supplemental
claim is easily shown to have no possible merit, dismissing it on the merits is a time saver for
everybody.”).

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As defendants point out, these state-law claims are doomed because Killebrew did not
comply with Wisconsin’s notice-of-claim statute, Wisconsin Statute § 893.82. Under this
statute, a plaintiff must give notice to the state about the circumstances of his claims before
suing state officials under state-law theories. Killebrew did file a notice of claim about his
cold cell, but he did include the names of defendants in it, identifying only Sgt. Mentzel. See
Dkt. 47-1.
Section 893.82(3) states:
Except as provided in sub. (5m), no civil action or civil
proceeding may be brought against any state officer, employee
or agent for or on account of any act growing out of or
committed in the course of the discharge of the officer’s,
employee’s or agent’s duties . . . unless within 120 days of the
event causing the injury, damage or death giving rise to the civil
action or civil proceeding, the claimant in the action or
proceeding serves upon the attorney general written notice of a
claim stating the time, date, location and the circumstances of
the event giving rise to the claim for the injury, damage or death
and the names of persons involved, including the name of the state officer,
employee or agent involved. . . .
(Emphasis added.)
This is fatal to Killebrew’s negligence claims because a plaintiff must strictly comply
with the notice-of-claim statute to proceed with his claim. Section 893.82(2m) (“No claimant
may bring an action against a state officer, employee or agent unless the claimant complies
strictly with the requirements of this section.”); Kellner v. Christian, 197 Wis. 2d 183, 194-95,
539 N.W.2d 685, 689-90 (1995) (“We read [subsection (2m)] to indicate that a claimant
must adhere to each and every requirement in the statute.”). This includes identifying the
state officials who violated the plaintiff’s rights. Protic v. Castle Co., 132 Wis. 2d 364, 369,
392 N.W.2d 119, 122 (Ct. App. 1986); abrogated on other grounds by Bicknese v. Sutula, 2003

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WI 31, 260 Wis. 2d 713, 660 N.W.2d 289. Because Killebrew has not complied with the
notice-of-claim statutes, I will dismiss his negligence claims.

ORDER
IT IS ORDERED that:
1. Plaintiff Shondell Killebrew’s motion for summary judgment, Dkt. 32, is
DENIED.
2. Defendants Hans Kuster and Tim Ikert’s motion for summary judgment, Dkt. 34,
is GRANTED.
3. The clerk of court is directed to enter judgment for defendants and close this case.
Entered March 27, 2017.
BY THE COURT:
/s/
_______________________________________
JAMES D. PETERSON
District Judge

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