Rogers, Jermaine v. Ashworth, John et al
ORDER denying plaintiff's 17 Motion for Summary Judgment; granting in part and denying in part defendants' 35 Motion for Summary Judgment. Signed by Magistrate Judge Stephen L. Crocker on 11/13/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION AND ORDER
JOHN ASHWORTH, et al.,
Pro se plaintiff Jermaine Rogers is proceeding on claims that prison staff at the Columbia
Correctional Institution violated his rights under the constitution and state law by subjecting
him to unsanitary conditions of confinement. Before the court are the parties’ cross motions for
summary judgment. Dkt. 17, 25. Because I conclude that no reasonable jury could conclude
that defendants Neumaier, Bittelman, Ashworth, Kottka, Schneider or Meisner were deliberately
indifferent to plaintiff’s cell conditions, I am granting defendants’ motion with respect to those
defendants. However, because there are genuine disputes of material facts with respect to
plaintiff’s claim against defendant Nathaniel Christensen, I am denying defendants’ motion as
to Christensen. I am denying plaintiff’s motion in full.
From the parties’ proposed findings of fact, responses and evidence in the record, I find
the following facts to be undisputed unless otherwise noted.
A. The Parties
At all times relevant to this case, plaintiff Jermaine Rogers was incarcerated at the
Columbia Correctional Institution (CCI) in Portage, Wisconsin. Defendants were employed at
CCI: Nathaniel Christensen, Brian Neumaier and Travis Bittelman were correctional officers;
Anthony Ashworth was the unit manager of the restrictive housing unit; James Kottka and
Randy Schneider were sergeants; and Michael Meisner was the warden.
B. Cell 34 in the Restrictive Housing Unit
On February 24, 2012, inmate Terrance Grissom occupied cell 34 in the restrictive
Grissom threw feces and urine outside of the cell at an officer, and was
subsequently transferred to Green Bay Correctional Institution. (Although plaintiff proposes
as fact that Grissom “covered” his cell in feces and blood, plaintiff conceded at his deposition
that he has no personal knowledge of or other evidence regarding what happened in cell 34 prior
to his placement in the cell on February 29, 2012. Plt.’s Dep., dkt 52, at 20.)
On February 26, 2012, inmate Leycester Zissler was placed in cell 34. (The record is
silent as to whether cell 34 was power washed or otherwise cleaned before Zissler was placed in
it.) He noticed the smell of feces and fecal matter on the cell door. After he complained to
defendant Sergeant Schneider, Zissler was removed and the cell was cleaned. On February 27,
2012, inmate Isaiah Bell was moved into cell 34. Later that night, Bell smeared feces on his cell
window while he cut his arm. Bell was subsequently moved out of cell 34.
On February 29, 2012, staff ordered two inmate employees, known as “swampers,” to
power wash cell 34. Typically, when an inmate is removed from a cell, the cell is cleaned and
inspected by inmate swampers before another inmate is placed in the cell. Swampers usually
clean cells using disinfectant sprays and scrub brushes, but they may use a pressure washer if
necessary. In particular, cells that contain feces are supposed to be cleaned using a pressure
washer and a wet/dry vacuum.
Defendant Officer Christensen inspected cell 34 after the two inmate swampers told him
they were finished. Generally, when Christensen inspects a cell, he flushes and inspects the
toilet, runs water in the sink, and inspects the window, mirror and trap. (Christensen says that
when he inspected cell 34, he not see or smell any blood or feces. Rogers says there was an
obvious smell of feces and visible feces and blood in the cell.)
C. Rogers is Transferred to Cell 34
At around 3:18 p.m. on February 29, 2012, defendant Christensen brought Rogers to cell
34. (Rogers says that when he was placed in the cell, he smelled feces immediately and noticed
blood on the toilet flusher. Rogers says he complained to Christensen about the cleanliness of
the cell, stating that there was a strong odor of feces and visible fecal matter in the crevices of
the window on the door and on the window sill. Rogers says he asked for cleaning supplies and
also told Christensen to tell defendant Sergeant Schneider that he wished to talk to him about
his cell and that he wanted to be moved to a different cell. Christensen disputes this, stating
that Rogers did not complain about the cleanliness or odor of his cell.)
The next day, March 1, 2012, Rogers became sick after eating lunch. He believes he
ingested fecal matter that was transferred to his food tray via the slot on his cell’s door. He
suffered severe stomach pains and vomiting. When defendant Officer Bittelman came by to
collect Rogers’ meal tray, Rogers refused to place his meal try in the trap. Rogers did not say
anything to Bittelman at the time about feces or blood in his cell; nor did Bittelman see any feces
or blood in Rogers’ cell at the time. Bittelman notified his supervisor, Sergeant Millonig, who
went to Rogers’ cell and asked him to surrender the meal tray. Rogers refused, telling Millonig,
“Fuck that. I want a white shirt and a nurse, my belly hurts.” (Rogers did not say that his
stomach hurt because he had ingested fecal matter.) When Millonig asked again for the meal
tray, Rogers repeated, “Fuck that I want a white shirt.” Millonig notified a lieutenant about the
situation, and another officer was eventually able to retrieve the meal tray. Later that day,
Rogers received a conduct report and was placed on a “bag meal” restriction as a result of his
refusal to surrender his meal tray.
The next day, March 2, 2012, Rogers mailed a grievance to defendant Ashworth, the unit
manager, complaining about the strong odor and presence of fecal matter in his cell and
requesting to be moved to a different cell. (Rogers says that on March 3, he complained to
defendant Sergeant Kottka about the smell and feces in his cell. Kottka denies that Rogers
complained to him on that day and says that Rogers did not complain to him about the cell until
March 5, 2012.)
On March 4, 2012, defendant Officer Neumaier placed Rogers’ bag lunch in his cell trap.
As Neumaier tried to secure the trap shut, Rogers threw the bag meal at Neumaier. Rogers was
issued a conduct report for attempted battery. (Neumaier says he did not see or smell any feces
or blood in the trap and that if he had, he would not have placed his own hand in the trap to
deliver Rogers’ meal bag. Neumaier also says that Rogers did not say anything to him at the time
about feces or blood in his cell. Rogers disputes this, saying that he complained to Neumaier
about feces in his cell, told him he would not accept the lunch bag because the cell door slot was
contaminated with feces and asked to be moved to a different cell.)
On March 5, Rogers complained to defendant Kottka that there was feces and blood in
his cell. That same day, defendant Ashworth received the interview request from Rogers dated
March 2, in which Rogers complained about his cell conditions. Ashworth talked to unit staff
about Rogers’ complaints. He also spoke with the inmate swampers who had cleaned cell 34
prior to Rogers being placed in the cell. Unit staff and the swampers told Ashworth that the cell
had been properly cleaned and was feces-free.
D. Cell 34 is Cleaned on March 5, 7 and 10
Despite being told the cell had been cleaned and did not contain feces, defendants
Ashworth and Kottka decided to have the cell cleaned again. Kottka ordered the cell to be
cleaned by inmate swamper James Smith. Inmate Smith used disinfectant spray, a putty knife
and a power washer and cleaned the cell door, trap, window, and toilet. Smith testified at his
deposition that he could smell the odor of feces on the outside of the cell. Smith Dep., dkt. 53,
at 25, 29. Once he started cleaning, he found blood on the wall by the door and under the sink
next to the toilet. Id. at 25, 29. He also found feces embedded in the trap and in the window
sill on the door. The feces was hardened and he had to use a putty knife to remove it. Id. at 28,
37. He power washed the speakers in the door in case any feces had been pushed down the
speakers and trapped in the door. Smith testified that there was no feces or blood remaining in
the cell after he finished cleaning it. Id. at 38. After Smith was finished, staff inspected the cell
and ordered Rogers to be placed back into the cell. Rogers subsequently thanked Smith and told
Smith that the cell was now cleaned properly. (After Smith cleaned Rogers’ cell on March 5,
Kottka did not receive any further complaints from Rogers and had no further involvement with
Rogers regarding the conditions of cell 34.)
Rogers says that the cell continued to smell and contain fecal matter even after Smith
cleaned the cell. (Defendants dispute this, maintaining that the cell was now clean.) On March
6, 2012, Rogers wrote defendant Warden Meisner about his cell conditions. He complained
again on March 7 and 9. Meisner’s designee, Linda Potenberg, responded to each of Rogers’
requests, instructing Rogers to follow up with his unit manager, defendant Ashworth, and to file
an inmate complaint if he was not satisfied with the condition of his cell. Potenberg directed
Rogers to contact Ashworth because Ashworth was responsible for managing the restrictive
housing unit, whereas Meisner did not supervise the day-to-day operations of individual
employees and did not normally have any involvement with the daily business of the housing
units or the decisions concerning specific individual inmates on a unit. Meisner did not receive
any further requests or correspondences from Rogers.
On March 7, 2012, Rogers wrote defendant Ashworth that his cell had not been cleaned
properly, continued to have a strong smell of feces and fecal matter and that he had been
punished for complaining about it. Ashworth confirmed with staff that Rogers’ cell had been
cleaned and pressure washed. He also personally inspected Rogers’ cell and did not see or smell
any feces or blood. Ashworth believed that, due to the age of Rogers’ door and the fact that the
cell had been cleaned so many times, Rogers believed the rust on the door was feces.
Nonetheless, Ashworth placed a work order asking maintenance if they could “seal” Rogers’ cell
door because he continued to complain of feces being located in the speaker on it. Maintenance
staff responded that they could not seal the door and that, besides power washing and
disinfecting the cell, there was nothing else to be done. Ashworth ordered that the cell be power
washed again on March 7. (It was also cleaned again on March 10, though it is not clear from
the record who ordered that or whether it was power washed.)
The next, and last, time that defendant Ashworth had any contact with Rogers regarding
the conditions of his cell was on March 19, when Ashworth received an interview request from
Rogers dated March 12, complaining about the conditions of his cell. Ashworth did not believe
that there were feces or blood in Rogers’ cell because the inmate swampers and unit staff told
him that they had not seen any feces, his own inspection of the cell showed that there were no
feces and he knew that the cell had been cleaned multiple times with the use of a power washer
and disinfectant. Ashworth responded that the issue had been addressed.
On April 8, 2012, Rogers was moved from cell 34 to cell 46. (Rogers says he was moved
to cell 46 because of the feces in cell 34. Defendants dispute this, stating that Rogers was moved
because he had progressed from disciplinary separation 1—where cell 34 is located—to
disciplinary separation 2, where cell 46 is.)
Neither of the two inmates housed in cell 34 after Rogers made any complaints about the
presence of blood or feces.
Plaintiff claims that defendants violated the Eighth Amendment by depriving him of
“humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). See also
Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). An Eighth Amendment “conditions of
confinement” claim has two parts. First, the inmate must show that the alleged deprivation was
objectively, “sufficiently serious,” such that an official’s act or omission results in the “denial of
the minimal civilized measure of life’s necessities.” Townsend v. Fuchs, 522 F.3d 765, 773 (7th
Cir. 2008) (citing Farmer, 511 U.S. at 834). Second, the inmate must show that the prison
official acted with a subjectively culpable state of mind, known as “deliberate indifference” –
that is, the official knew about the risk of harm, had the ability to prevent the harm, and failed
to do so. Mays v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009).
For purposes of summary judgment, defendants concede that plaintiff’s cell contained
feces and blood as he alleges, at least until it was cleaned by swamper James Smith on March 5,
2012, and that the conditions were objectively serious for purposes of the Eighth Amendment.
Dfts.’ Reply Br., dkt. 57, at 2, n.2. This makes sense, in light of numerous cases suggesting that
exposure to human waste can be sufficient to satisfy the objective component of an Eighth
Amendment claim. See, e.g. Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (“unhygienic
conditions, when combined with the jail’s failure to provide detainees with a way to clean for
themselves with running water or other supplies, state a claim for relief”); Vinning-El v. Long, 482
F.3d 923, 924 (7th Cir. 2007) (prisoner held in cell for three to six days with no working sink
or toilet, floor covered with water, and walls smeared with blood and feces); Isby v. Clark, 100
F.3d 502, 505–06 (7th Cir. 1996) (prisoner held in segregation cell that allegedly was “filthy,
with dried blood, feces, urine and food on the walls”); Jackson v. Duckworth, 955 F.2d 21, 22 (7th
Cir. 1992) (prisoner held in cell that allegedly was filthy and smelled of human waste, lacked
adequate heating, contained dirty bedding, and had “rusted out” toilets, no toilet paper, and
black worms in the drinking water); Johnson v. Pelker, 891 F.2d 136, 139–40 (7th Cir. 1989)
(prisoner held for three days in segregation cell allegedly smeared with human feces and having
no running water); DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (concluding that
exposure to human waste, even for 36 hours, would constitute sufficiently serious deprivation
to violate Eighth Amendment).
However, defendants seek judgment in their favor on plaintiff’s claims on the ground that
the record does not support an inference of deliberate indifference. Additionally, defendants
argue that qualified immunity shields them from money damages. I will address plaintiff’s claims
against each defendant below.
A. Nathaniel Christensen
Plaintiff contends that when he was moved into cell 34 on February 29, 2012, he told
defendant Christensen that his cell contained feces and smelled of feces, and that Christensen
acted with deliberate indifference to his cell conditions by refusing to move him to another cell,
report his complaints to a supervisor, or provide plaintiff with cleaning supplies. Defendants
argue that Christensen cannot be liable because he relied on his own observations of the cell to
conclude that there was no feces or blood in the cell. In particular, they argue that Christensen
inspected the cell and did not see or smell any feces or blood. If he had, they argue, he would
have ordered the inmate swampers to re-clean the cell because doing so would have been in his
own best interest—Christensen would not have wanted to smell feces or risk touching feces or
blood as he interacted with plaintiff.
However, plaintiff argues that the stench of feces was so powerful that anyone entering
the cell would have smelled it. The affidavit of inmate Zissler and the deposition of inmate
Smith support plaintiff’s version of events: both state that the smell of feces was obvious outside
the door of cell 34. Zissler Aff., dkt. 22; Smith Dep., dkt. 53, at 29. Additionally, plaintiff says
that when he entered the cell, he could see blood on the toilet handle and feces caked into the
cracks of the window and streaked on the cell door. Rogers Dep., dkt. 52, at 15. Smith testified
similarly at his deposition, stating that when he entered the cell to clean it, he saw “blood on the
wall by the door, blood by the toilet, . . . feces on the trap and feces in the window sill.” Smith
Dep., dkt. 53, at 30. I do not know whether this is true, but for purposes of summary judgment
I must accept plaintiff’s own description of what his cell looked and smelled like. Miller v.
Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014) (“We must . . . construe the record in the light
most favorable to the nonmovant and avoid the temptation to decide which party’s version of
the facts is more likely true.”). I must also accept as true plaintiff’s allegation that he pointed
out the blood and feces to Christensen, but that Christensen refused to do anything about it.
Plt.’s Cpt., dkt. 1, ¶ 7.
Defendants cite Riccardo v. Rausch, 375 F.3d 521 (7th Cir. 2004) for the proposition that
prison guards are not required to believe everything an inmate tells them, suggesting that even
if plaintiff had told Christensen that there was feces in the cell, Christensen was entitled to
disbelieve plaintiff. But Riccardo is distinguishable. That case involved a prisoner who told a
guard that he feared that his new cellmate would harm him. Id. at 525. The guard refused to
move the prisoner, and the prisoner was later sexually assaulted by the cellmate. Id. The court
of appeals dismissed the prisoner’s failure to protect claim, stating the guard was entitled to
disbelieve the prisoner. The court explained that, “The constitutional question is not what [the
prisoner] said, but what [the guard] actually believed.” Id. at 528.
In contrast to Riccardo, plaintiff in this case has not alleged simply that he told
Christensen that there was blood and feces in his cell. Rather, plaintiff says that the smell was
so obvious that Christensen would have smelled it.
Moreover, because Christensen was
responsible for inspecting the cell, inevitably he would have seen and smelled the blood and feces
in the cell. In contrast to Riccardo, plaintiff’s claim against Christensen does not depend on a
finding that Christensen “believed” plaintiff. Rather, the question under the Eighth Amendment
in this case is whether Christensen’s failure to do anything despite knowing that plaintiff’s cell
smelled like feces and contained blood and feces from prior inmates constitutes deliberate
indifference. Based on plaintiff’s description of his cell, a reasonable jury could conclude that
Christensen’s failure to move plaintiff to a different cell, failure to order swampers to clean the
cell, failure to provide plaintiff with cleaning supplies or, at the very least, notify a supervisor of
the situation, constitutes deliberate indifference.
Finally, I am not persuaded by defendant Christensen’s argument that he is entitled to
qualified immunity. Qualified immunity protects government employees from liability for civil
damages for actions taken within the scope of their employment unless their conduct violates
“clearly established . . . constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Saucier v. Katz, 533 U.S. 194, 201
(2001); Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“In determining whether a
constitutional right has been clearly established, it is unnecessary for the particular violation in
question to have been previously held unlawful.” Lewis v. McLean, 864 F.3d 556, 566 (7th Cir.
2017) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Instead, the question is whether
the “contours of the right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson, 483 U.S. at 640. It has long been clear that
keeping a prisoner in a cell containing blood and human waste may violate the prisoner’s Eighth
Amendment rights. See, e.g., Budd, 711 F.3d at 842; Vinning-El, 482 F.3d at 924; Isby, 100 F.3d
at 505–06; Jackson, 955 F.2d at 22; Johnson, 891 F.2d at 139–40; DeSpain, 264 F.3d at 974. As
for whether Christensen’s actions ran afoul of that clearly established right, plaintiff’s version
of events suggests Christensen knew about the cell conditions and failed to take any steps to
correct the problem or to help plaintiff. Thus, Christensen is not entitled to qualified immunity.
For all of these reasons, I am denying Christensen’s motion for summary judgment.
B. Brian Neumaier
Plaintiff contends that defendant Neumaier acted with deliberate indifference when he
did nothing in response to plaintiff’s complaints on March 4, 2012 that his cell trap had feces
on it, he would not accept a meal through the trap, and he needed to be moved to a different
cell. Defendants argue that no reasonable jury could conclude that Neumaier was deliberately
indifferent because plaintiff did not dispute Neumaier’s averment that he did not see or smell
feces when he delivered plaintiff’s food bag. Plt.’s Resp. to DPFOF, dkt. 55, ¶ 121. I agree.
Plaintiff has not proposed facts suggesting that the feces would have been visible to
someone placing a meal bag in the trap from the outside the cell, or that the smell would have
alerted someone delivering food that plaintiff’s cell conditions were objectively serious.
Moreover, as defendants point out, Neumaier would not have placed his own hand in the trap
to deliver the bag to plaintiff if he had believed that there was feces inside. There is a question
whether Neumaier’s failure to investigate after plaintiff told him that there was feces in the trap
amounted to deliberate indifference, but in this instance, defendants’ reliance on Riccardo, 375
F.3d 521, is persuasive. Like the guard in Riccardo that dismissed a prisoner’s concern about
being attacked by another inmate, there is no evidence that Neumaier believed or had reason to
believe plaintiff’s claim about feces. See also Olson v. Morgan, 750 F.3d 708, 713 (7th Cir. 2014)
(“[P]rison guards are neither required nor expected to believe everything inmates tell them.”).
Instead, Neumaier’s subsequent action of issuing plaintiff a conduct report for throwing his meal
bag indicate that Neumaier believed plaintiff was simply acting out. Accordingly, I conclude that
there is not enough evidence from which a reasonable jury could conclude that Neumaier’s
failure to investigate amounted to deliberate indifference. Therefore, I will grant Neumaier’s
motion for summary judgment.
C. Travis Bittelman
Defendant Bittelman was involved in addressing plaintiff’s cell complaints on two
occasions. Neither incident is sufficient to state a claim under the Eighth Amendment. On
March 5, plaintiff told Bittelman that his cell contained feces and blood. About an hour later,
plaintiff was removed from the cell, swamper Smith cleaned the cell, staff inspected it and
Bittelman returned plaintiff to the cell. Plaintiff says the cell was not cleaned properly, but he
admitted at his deposition that he said nothing to Bittelman about his cell, either at the time he
was returned or later. Plt.’s Dep., dkt. 52, at 49. Neither has plaintiff alleged facts suggesting
that Bittelman believed the cell continued to contain feces.
On March 7, Bittelman learned from other staff that plaintiff still was complaining about
his cell. Later that day, plaintiff’s cell was cleaned again and Bittelman inspected it. Plaintiff
has not disputed Bittelman’s statement that he did not see or smell any feces or blood during
his March 7 inspection. Plt.’s Resp. to DPFOF, dkt. 55, ¶ 90. In particular, plaintiff has not
alleged that he pointed out feces or blood to Bittelman, or that the feces and blood were so
obvious that Bittelman would have seen it. On this record, no reasonable jury could conclude
that Bittelman was deliberate indifferent to plaintiff’s complaints. Bittelman responded to both
complaints in a logical manner, and he cannot be liable for failing to have done even more when
he did not detect any deficiencies in the two cell cleanings he had ordered and no deficiencies
were pointed out to him. See Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010); Brooks
v. Ross, 578 F.3d 574, 580 (7th Cir. 2009). Accordingly, I will grant Bittelman’s motion for
D. James Kottka
Plaintiff contends that defendant Kottka was deliberately indifferent to his cell
conditions on March 3, 2012, when plaintiff told Kottka that his cell had feces and smelled of
feces and Kottka denied his request to be moved. Kottka does not recall plaintiff complaining
about his cell on March 3. Rather, Kottka recalls that plaintiff complained on March 5, after
which Kottka consulted with defendant Ashworth and ordered plaintiff’s cell cleaned that same
day. For purposes of summary judgment, however, I must accept as true that plaintiff first
complained to Kottka on March 3.
Nonetheless, I conclude that plaintiff has not submitted enough evidence from which a
jury could conclude that Kottka was deliberately indifferent to his cell conditions. In particular,
plaintiff provides no context for his discussion with Kottka, such as whether they spoke at
plaintiff’s cell or somewhere else. This matters, because if plaintiff had pointed out the feces to
Kottka or if Kottka had been present and actually smelled feces, then plaintiff might have stated
a viable claim against Kottka. Here, however, plaintiff has not alleged when or where the
discussion occurred, or even what was discussed in detail. Rather, he states only that he told
Kottka there was a smell and feces in his cell. Without more, no reasonable jury could conclude
that Kottka actually knew the extent of plaintiff’s cell conditions and then consciously
disregarded them. Olson, 750 F.3d at 713 (prison guard can be liable for deliberate indifference
only if he believed prisoner’s complaints about a substantial risk of serious harm).
Moreover, Kottka did investigate plaintiff’s complaints about his cell. On March 5, after
consulting with unit staff who told him that plaintiff’s cell had been cleaned properly already,
Kottka and Ashworth ordered that plaintiff’s cell be cleaned again by an inmate swamper.
Although plaintiff argues that Kottka should have ordered this immediately, or moved him to
a different cell upon hearing his March 3 complaints (which I am assuming for summary
judgment purposes actually occurred), plaintiff has not submitted enough evidence from which
a reasonable jury could conclude that Kottka’s delay amounted to deliberate indifference.
Accordingly, I will grant Kottka’s motion for summary judgment.
E. Anthony Ashworth
Although defendant Ashworth ordered that plaintiff’s cell be cleaned twice after receiving
plaintiff’s complaints about it, plaintiff contends that Ashworth violated the Eighth Amendment
by failing to do more. In particular, he contends that Ashworth should have moved him to a
different cell or done more to insure that all of the blood and feces were removed from the cell.
However, the evidence in the record does not support a conclusion that Ashworth was
Ashworth received plaintiff’s first information/interview request on March 5, 2012. He
investigated plaintiff’s concerns and talked to the inmate swamper and the unit staff, who all
told him the cell had been cleaned properly. Even so, Ashworth and Kottka ordered that the cell
be cleaned again on March 5. When plaintiff complained again, Ashworth conducted another
investigation, confirming that the swamper Smith had power washed the cell. He also inspected
the cell personally and did not see or smell any feces or blood. He believed that the cell was
simply rusted. Nonetheless, he ordered that the cell be cleaned again. Ashworth also asked
maintenance if they could seal the speakers in the door, as plaintiff believed odors were seeping
from the speakers into the cell. At the time Ashworth received plaintiff’s final grievance dated
March 12 and responded that nothing more would be done, Ashworth knew that the cell had
been power washed and disinfected multiple times. He had also inspected the cell personally.
Although plaintiff may believe Ashworth should have done more, no reasonable jury could
conclude that Ashworth’s efforts amounted to deliberate indifference. Therefore, I will grant
Ashworth’s motion for summary judgment.
F. Randy Schneider
Plaintiff claims that on March 8, 2012, he asked defendant Schneider if he could be
moved to a different cell because his current cell contained feces, but Schneider denied his
request. I agree with defendants that no reasonable jury could conclude that Schneider was
deliberately indifferent. As with plaintiff’s claims against defendant Kottka, plaintiff provides
no context or details about his discussion with Schneider, such as where the discussion occurred
or what in particular was said.
Plt.’s Dep., dkt. 52, at 56-57 (describing complaint to
Schneider). Further, at this point, plaintiff’s cell had been cleaned three times in eight days (on
February 29, March 5 and March 7), something Schneider likely would have known in light of
his status as a sergeant on the unit. Without evidence that plaintiff showed Schneider evidence
that his cell contained feces, no reasonable jury could conclude that Schneider believed plaintiff’s
allegation that his cell continued to contain feces despite being cleaned so many times in such
a short time. Accordingly, plaintiff has not submitted evidence sufficient to establish the
subjective component of his deliberate indifference claim against Schneider. Therefore, I will
grant Schneider’s motion for summary judgment.
G. Michael Meisner
Finally, Plaintiff contends that defendant Meisner, the warden, violated his Eighth
Amendment rights by failing to do more in response to the three interview requests plaintiff
submitted to Meisner complaining about his cell conditions. Meisner responded through his
designee and told plaintiff to speak with Ashworth, the unit manager, and to file an inmate
complaint if he was not satisfied with the condition of his cell.
Meisner’s response did not amount to deliberate indifference. As the warden of the
entire prison, Meisner was not involved in addressing the conditions of specific cells–that was
the job of his unit managers. The law is clear that the Eighth Amendment does not prohibit
prison officials from delegating tasks. Burks v. Raemisch, 555 F .3d 592, 595 (7th Cir. 2009).
Further, the record facts show that plaintiff’s unit manager, Ashworth, was addressing plaintiff’s
complaints. Therefore, no reasonable jury could conclude that Meisner violated the Eighth
Amendment. He is entitled to summary judgment.
IT IS ORDERED that:
(1) Plaintiff Jermaine Rogers’ motion for summary judgment, dkt. 17, is DENIED.
(2) Defendants’ motion for summary judgment is GRANTED IN PART and
DENIED IN PART:
(A) The motion is GRANTED with respect to plaintiff’s claims
against defendants Brian Neumaier, Travis Bittelman, Anthony
Ashworth, James Kottka, Randy Schneider and Michael Meisner.
(B) The motion is DENIED with respect to plaintiff’s claim against
defendant Nathaniel Christensen.
Entered this 13th day of November, 2017.
BY THE COURT:
STEPHEN L. CROCKER
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