Artis, Robert v. Price et al
ORDER that Defendants' motion for summary judgment (dkt. # 28 ) is GRANTED IN PART AND RESERVED IN PART. The motion is granted as to plaintiff's claims against defendants Price and Hibma, and reserved as to plaintiff's claims aga inst defendants Anderson and Giroux. Plaintiff may have until September 29, 2021, to offer additional evidence as to the actual conditions of his confinement during the six-day period from July 27 to August 2, 2018. Should plaintiff proffer supplem ental proof, defendants Anderson and Giroux may have 21 days to respond. If plaintiff fails to submit additional evidence, the court will grant defendants Anderson and Giroux's motion for summary judgment and direct entry of judgment in favor of all defendants. The trial date and all pretrial deadlines are STRUCK. Signed by District Judge William M. Conley on 9/8/2021. (kmd),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION AND ORDER
SEAN PRICE, BRITTANY HIBMA ,
THEODORE ANDERSON and
Plaintiff Robert Artis claims that certain employees at Columbia Correctional
Institution violated his Eighth Amendment rights. Specifically, Artis was granted leave to
proceed pro se on claims that: defendants Sean Price and Brittany Hibma acted with
deliberate indifference to his threats of self-harm; and defendants Theodore Anderson and
Richard Giroux acted with deliberate indifference to his conditions of confinement during
a six-day period in 2018. Before the court is defendants’ motion for summary judgment,
seeking summary judgment with respect to both claims based on a lack of evidence that
plaintiff suffered any cognizable harm or injury with respect to both claims and his failure
to present evidence to support the objective prong of the conditions of confinement claim.
(Dkt. #28.) For the reasons that follow, the court will grant defendants’ motion as to
plaintiff’s claims against defendants Price and Hibma, but will reserve on defendants’
motion as to plaintiff’s claims against defendants Anderson and Giroux, providing one last
opportunity to plaintiff to supplement the evidence as to his conditions of confinement.
The court notes that this defendant’s last name was incorrectly spelled Himba. The court has
corrected the spelling in this opinion and order.
Plaintiff Robert Artis is a state prisoner who was incarcerated at Columbia
Correctional Institution in July and August 2018.
Defendant Brittany Hibma is currently employed by the Department of Corrections
(“DOC”) at Columba as a Correctional Sergeant. In the summer of 2018, Hibma was
employed at Columbia as a Correctional Officer.
Defendant Sean Price is currently
employed with the DOC at Columbia as a Correctional Sergeant, and he has held that
position since May 2018. Defendant Richard Giroux was employed by DOC at Columbia
as a Supervising Officer 1 (Lieutenant) from October 2016 through March 2, 2019.
Finally, defendant Theodore Anderson was employed by DOC at Columbia as a
Supervising Officer 2 (Captain) from February 17, 2019, until August 2020.3
Columbia is a maximum-security correctional facility for adult males located in
Portage, Wisconsin. Inmates are housed in general population or restrictive housing,
formerly known as segregation. There are two forms of restrictive housing: Restrictive
Housing Unit 1 (“RHU1”) located in the main administrative building and Restrictive
Housing Unit 2 (“RHU2”) located in each housing unit. In general, restrictive housing is
where inmates are sent for violating prison rules or because they pose a risk to themselves,
Unless otherwise noted, the court finds the following facts material and undisputed, viewed in the
light most favorable to plaintiff as the nonmoving party.
The court assumes that the start date provided by defendants must be in error given that there
appears to be no dispute that defendant Anderson was working at Columbia during the period
relevant to Artis’s claims.
staff or the institution. In total, there are 40 cells classified as restrictive housing -- 12
double cells and 28 single cells. Cells in restrictive housing are approximately eight feet
wide and 11 feet long, with a window in the door that measures approximately 18 inches
long by four inches wide. Each cell is equipped with a sink, toilet, light, concrete bed frame,
mattress and a pillow.
All the cells in RHU1 are equipped with a dimmer light and a bright light, both
controlled by officers. Defendants maintain that the dimmer light stays on at all times,
while the bright light is turned off at night. However, plaintiff Artis disputes that this was
his experience when housed in RHU1 and specifically, as described below, not between
July 27 and August 2, 2018. Instead, during this period, he maintains that the bright light
was on at all times. Regardless, there is no dispute that the dimmer light -- a low, 32-watt
fluorescent bulb, behind a frosted light cover -- is kept on 24-hours a day so that staff can
observe inmates for safety and security reasons.
Inmates in restrictive housing are allowed two, scheduled shower days per week, and
each time, they are provided soap, shampoo, a fresh towel, and a fresh smock or other
clothing. Every cell is also equipped with a sink and a water bubbler so inmates have access
to drinking water at all times. Still, Artis maintains that he was not offered a shower, and
the water to his cell was shut off when housed in RHU1 from July 27 through August 2,
2018, also as described in more detail below.
Inmates in restrictive housing eat their meals in their cells, with officers delivering
prepared meals to each inmate’s cell through traps in the cell door at designated times.
Every inmate is to be offered meals three times per day. Officers also deliver medications
to restrictive housing inmates at regularly scheduled times -- morning, noon, 3:00 p.m.,
On March 26, 2018, Artis was first placed in RHU1 for purposes of “administrative
confinement,” which is defined by the DOC’s administrative code as
an involuntary nonpunitive status for the segregated
confinement of an inmate whose continued presence in general
population poses a serious threat to life, property, self, staff, or
other inmates, or to the security or orderly running of the
(Defs.’ PFOFs (dkt. #30) ¶ 25 (quoting Wis. Admin. Code DOC § 308.04(1)).) For
reasons that are not entirely clear, Artis went on a hunger strike on July 20, 2018, and then
wrote to the Psychological Services Unit (“PSU”) and the Health Services Unit (“HSU”)
on July 22, 2018, complaining that his hunger strike was not being documented.5 On July
23, Artis was next found guilty of disruptive conduct and disobeying orders, and given a
sanction of 30 days cell confinement.
B. Events of July 27, 2018
On July 27 at 9:10 a.m., defendants maintain that a nurse walked through RHU1
checking on the inmates as part of the routine HSU rounds on the unit and Artis spoke to
the nurse regarding his hunger strike. While Artis disputes that he had any conversation
with a nurse at that time, at around 10:00 a.m., defendant Brittany Hibma, then a
The “noon” med pass occurs at the same time lunch is delivered, which usually is around 10:00
a.m., rather than noon.
Defendants also set forth facts concerning a threatened self-harm event on July 3 and 4, but this
appears only tangentially related to plaintiff’s claim or defendant’s motion, and so the court has
not included these additional facts. (Defs.’ PFOFs (dkt. #30) ¶¶ 28-36.)
Correctional Officer, walked through RHU1, distributing medications to inmates as part
of the noon med pass. Hibma handed Artis a glass fluticasone nasal spray bottle, which he
was authorized to use. Typically, Artis would return the spray bottle to the correctional
officer after use, but he did not do so that day. Instead, Artis avers that he told Hibma
several times that he intended to use it to harm himself, although defendants dispute this.
Specifically, Hibma avers in her declaration that had Artis threatened harm, she would have
relayed that threat to the Sergeant on duty, defendant Sean Price, so that the threat of
self-harm could be logged and PSU could have been notified. Instead, when questioned by
the institutional complaint examiner (“ICE”) in response to Artis’s administrative
complaint, and as reflected in the ICE report itself, Hibma stated that she informed
Sergeant Price about Artis refusing to return the spray bottle, but not that Artis threatened
to harm himself with it. (Ray Decl., Ex. 1016 (dkt. #37-2) 2.)
At around 1:00 p.m., Sergeant Price next came to Artis’s cell asking for the glass
bottle back. At that time, Artis avers he also told Price that he was planning on using the
glass bottle to harm himself and was feeling suicidal. He contends that Price responded,
“I don’t care[.] I’m [a]bout to go home in a[n] hour and I w[o]n[’]t be back till Tuesday
so go ahead.” (Pl.’s Add’l PFOFs (dkt. #40) ¶ 7.) While defendants do not dispute for
purposes of summary judgment that Price was off work until the following Tuesday, Price
disputes both this account and that he was told Artis intended to harm himself with the
bottle. Similarly, had he been informed of Artis’s threat of self-harm, Price maintains that
he would have notified his superiors and the PSU, as well as documented the incident.
In further support of Artis’s account of his conversations with Hibma and Price,
Artis submitted a declaration by another inmate, Ronelle Booker, who was housed close to
him on July 27, and avers that: (1) he heard Artis tell both Hibma and Price that he was
feeling suicidal and intended to harm himself with a glass bottle; and (2) they both ignored
(Booker Decl. (dkt. #40-6).) Booker also avers that he heard Price say, “it’s my
Friday. I’m going home in a[n] hour.” (Id.) Moreover, at approximately 2:00 p.m. on July
27, not only was there a shift change, but defendants offer no evidence from Hibma or
Prince that Artis had returned a glass bottle despite both ordering him to return it.
Around 3:05 p.m., Officer Jarrett Tierney went to Artis’s cell for the afternoon med
pass and discovered that Artis had harmed himself. Artis claims that he was actively
committing self-harm when Tierney came to his cell, and he had to order Artis to stop, but
their stories otherwise comport after that: Artis showed Tierney three small lacerations on
his arm, each about the size of a pea; Artis said that the first shift officers had not recovered
his nasal spray bottle from the earlier med pass; and he had used it to injure his arm. As
directed by Tierney, Artis agrees that he also stopped harming himself, then indicated his
readiness to be moved to disciplinary segregation.
At that point, Officer Tierney radioed for assistance, and the Captain then on duty,
defendant Theodore Anderson, came to Artis’s cell. Artis also showed Captain Anderson
the small cuts on his arm, along with the broken medication bottle. Tierney next placed
Artis’s wrists in a tether and restraints through an opening in the cell door for transfer,
removed him from his cell, and escorted him to HSU for medical assessment. The nurse
also noted “3 sm[all] skin tears > pea size.” (Defs.’ PFOFs (dkt. #25) ¶ 60 (citing Kinyon
Decl., Ex. 1001, Part 11 (dkt. #35-12) 918-19).) While Artis does not dispute this
description of his injuries, he points out that no one took photos showing the cuts. The
nurse next noted that Artis reported a pain scale of 0 out of 10 and was angry because he
had not been seen by HSU for his hunger strike. In contrast, Artis denies ever speaking to
a nurse, although acknowledges that he was seen by a nurse, and she cleaned his cuts with
saline, antiseptic, and a band-aid. Finally, she told Artis to keep his cuts clean and dry,
and to follow-up with HSU if needed.6
After his treatment by the nurse, Artis was seen by psychologist Daniel Norge. Dr.
Norge’s notes reveal that Artis denied suicidal ideation or thoughts of self-harm. Artis
purports to dispute this discussion as well, but acknowledges that he spoke with Norge for
close to an hour, told him that he was not feeling well that day, but, consistent with Norge’s
note, Norge asked him not to harm himself and that he would see him on Monday, and
Artis agreed to that plan. The parties dispute whether Artis shared with Norge that he
harmed himself to be seen by HSU regarding his food intake. Regardless, there is no
dispute that Norge determined that clinical observation was not needed, clearing him to
be returned to restrictive housing.
C. Limited Property Status
After consulting with Dr. Norge, Captain Anderson avers that he then decided to
place Artis on “limited property status,” as a precautionary measure given Artis’s self-
Artis apparently required no further treatment for this injury. Specifically, he neither requested
treatment, nor was he treated for his arm injury during the time he was kept on limited property
status from July 27 to August 2.
When an inmate is placed on limited property status, all personal
clothing and other property is removed from the cell and the inmate is only allowed to
have a security smock and a mattress. As an inmate’s condition improves, assuming no
misuse of the smock or mattress, he gradually regains access to other property. For his
part, Artis disputes that Dr. Norge played any role in the decision to place him on limited
property status, pointing to Norge’s statement during the administrative complaint
process, in which he denied having “any input into [a] security decision.” (Artis Decl. (dkt.
#41) ¶ 15; Pl.’s PFOFs, Ex. D (dkt. #40-4).)
Regardless, Artis was transferred to an RHU cell on July 27, which defendants define
as the “more restrictive disciplinary segregation unit,” and provided only a mattress and
smock as directed by Anderson, and he remained in that cell for six days until August 2,
2018. (Defs.’ PFOFs (dkt. #30) ¶ 69.) The parties dispute whether Artis was allowed to
take a shower during this time or even whether he had access to toilet paper, but there is
no dispute that he was offered three meals a day. While he was apparently provided
beverages with his meals, Artis further disputes that he had access to drinking water in his
cell, maintaining that Anderson had ordered staff to shut the water off in his cell.
In opposition, Captain Anderson disputes ordering the water to be turned off, and
defendants further note that there is “no record of any plumbing issues with the toilet or
sink between July 27 and August 2.” (Defs.’ PFOFs (dkt. #30) ¶ 76.) Anderson also avers
that neither Artis, nor anyone else, informed him that there was no running water in his
cell. As for the lights, Artis avers that Anderson ordered the bright light in his cell to be
left on at all times, and when he complained to defendant Lieutenant Giroux, also a
defendant, about the light on July 30, he was told that the light was on all day and night
as a known sleep deprivation tactic. While defendants assert that Artis neither informed
them that he had any concerns about the lighting in his cell nor that he was experiencing
adverse effects from the light.
In support of his account of the conditions of confinement from July 27 to August
2, Artis again directs the court to another declaration by an inmate, Evan Casey, who avers
that: (1) the water in that cell was turned off, and when Artis complained about it, staff
responded that it was “Anderson’s call”; (2) his room lights were on 24/7; and (3) he was
denied toilet paper, clothing and a shower, and when he made requests for them, staff
explained those denials were all due to Anderson as well. (Casey Decl. (dkt. #40-7).)
On July 30, Artis met with Dr. Norge again. Relying on Norge’s notes from that
meeting, defendants maintain that Artis told him he had harmed himself because he was
upset with HSU. Artis purports to dispute this, claiming that he also told Norge that he
was feeling stressed, rather than just upset with HSU. (Pl.’s Resp. to Defs.’ PFOFs (dkt.
#42) ¶ 89.) Artis further told Norge that he wanted his property returned, and Norge
informed Artis that he would discuss his request with the security staff. There is no dispute
that Lieutenant Giroux restored Artis’s personal property, but the parties dispute when
this occurred, with plaintiff maintaining that it did not occur until August 2, but
defendants contend that it was restored on July 30.
Plaintiff asserts claims of deliberate indifference under the Eighth Amendment (1)
to his risk of serious bodily harm against defendants Price and Hibma, and (2) to his
conditions of confinement against defendants Anderson and Giroux.
acknowledge disputes of material fact as to certain aspects of both claims, but contend that
summary judgment is nevertheless warranted in their favor because plaintiff has failed to
put forth evidence to support a finding of a cognizable harm with respect to either claim.
I. Claim Against Defendants Price and Hibma for Failure to Protect
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
To establish a claim for damages, a “prisoner must provide evidence that he presented an
objectively serious medical need that a defendant correctional officer responded to with
deliberate indifference, thereby resulting in some injury.” Lord v. Beahm, 952 F.3d 902,
904 (7th Cir. 2020) (citing Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) (en
As the Seventh Circuit has repeatedly held, “suicide is an objectively serious
medical condition.” Id. As such, “prison officials cannot intentionally disregard a known
risk that an inmate is suicidal.” Id. (citing Lisle v. Welborn, 933 F.3d 705, 716 (7th Cir.
2019) (collecting cases)).
As indicated above, defendants seek summary judgment on the basis that plaintiff
has not identified a cognizable harm.
Plaintiff does not dispute defendants’
characterization of his injury: three, pea-sized skin tears to his forearm, for which he
reported no pain, only required some cleaning and a band-aid, and required no follow-up
care. Thus, in support of their motion, defendants cite a number of cases outside of the
self-harm or threatened suicide context for the proposition that a scratch or small laceration
is not a sufficiently serious medical condition to warrant the need for medical treatment.
See Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996) (pointing out that the Eighth
Amendment does not extend to “a tiny scratch”); Dawes v. Coughlin, 159 F.3d 1346 (2d
Cir. 1998) (affirming summary judgment against plaintiff on claim for denial of medical
care involving a “one-and-a-half-inch laceration on his elbow”); Head-Bey v. Smith, No.
9:04CV191 LEKDRH, 2007 WL 274793, at *6 (N.D.N.Y. Jan. 26, 2007) (finding that
1½ inch laceration to plaintiff’s cheek was “de minimis and thus not sufficiently serious to
constitute an Eighth Amendment violation”).
Since none involve self-harm, however, all of these cases are readily distinguished
from the facts here. Still, defendants also direct the court to a recent Seventh Circuit
decision, Lord v. Beahm, 952 F.3d 902 (7th Cir. 2020), holding that “an insincere threat of
suicide to get attention,” coupled with a superficial physical injury, is not sufficient to
demonstrate a cognizable harm, affirming the grant of summary judgment in the
defendants’ favor. Id. at 903. In so holding, Lord relied heavily on the fact that plaintiff’s
suicidal threat was “insincere,” distinguishing it from other deliberate indifference to selfharm cases where a prisoner raised a genuine issue of material fact warranting a jury trial:
This case is different, as it reflects an inmate’s insincere suicide
threat to get attention. Lord was upset that Officer Stoffel
would not return to his cell, and he reacted by screaming that
he had a blade and was taking his life, only then to inflict minor
scratches. Lord did not focus his § 1983 claim on these
scratches or, for that matter, on any other physical injury. To
the contrary, he focused exclusively on risk—on the danger he
presented to himself by having a razor blade and the officers
then ignoring his unmistakable plea that he intended to kill
Id. at 904–05 (emphasis in original); see also Conery v. Pawlyk, No. 18-CV-1606-JPS, 2020
WL 5572103, at *4 (E.D. Wis. Sept. 17, 2020) (citing Lord and granting summary
judgment in defendant’s favor based on finding that small laceration, coupled with
“insincere threat to get attention or to manipulate others” was not a cognizable injury).
Thankfully, as in Lord and Conery, there is no dispute that Artis suffered only small
skin tears from his self-harm, thus eliminating any claim based on a physical injury. Thus,
the question remains whether plaintiff raised a genuine issue of material fact as to the
sincerity of his original threat of self-harm. Unlike in Lord and Conery, both correctional
officers here knew Artis had a weapon he could use to self-harm in the form of a glass nasal
spray bottle, that he not only had no right to keep in his cell, but had twice been ordered
to return. Also, unlike in Lord and Conery, both of the correctional officer defendants claim
Artis never threatened self-harm or reported being suicidal, while both Artis and another
inmate maintain the opposite. However disturbing those additional facts may be in term
of risk, there is certainly reason to question or doubt plaintiff’s sincerity both in terms of
his having an ulterior motive to get attention and a lack of any meaningful injury. In
support of that argument, defendants also rightly emphasize Dr. Norde’s statements in the
record that Artis committed self-harm (such as it was) because he was upset with HSU for
ignoring his purported hunger strike. Moreover, Artis neither disputes that he made these
statements nor that Norde consequently recorded then in his medical record, but rather
contends that it was not just frustration with HSU’s lack of response to his hunger strike
that prompted him to commit self-harm, but that he was also feeling down and stressed.
However, this averment stops short of establishing that he had a sincere threat of self-harm,
much less that a reasonable jury would so find. Given proof of advance motive to get
attention by threat and Artis’s lack of any real injury, as well as admission of motive, after
the fact, the court agrees with defendants that Lord dictates finding plaintiff failed to raise
a genuine material issue of fact as to the sincerity of his threat of self-harm or suicidal
ideation to support a failure to protect claim. Therefore, the court will grant summary
judgment in defendants Price and Hibma’s favor on this claim.7
II. Claim Against Defendants Anderson and Giroux for the Conditions of his
The Eighth Amendment’s prohibition against cruel and unusual punishment
imposes upon prison officials the duty to provide prisoners “humane conditions of
confinement.” Farmer, 511 U.S. at 832. To constitute cruel and unusual punishment,
conditions of confinement must be extreme. Id. To demonstrate that prison conditions
violate the Eighth Amendment, therefore, a plaintiff must present evidence that satisfy a
test involving both an objective and subjective component. Lunsford v. Bennett, 17 F.3d
1574, 1579 (7th Cir. 1994). 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,” Farmer, 511 U.S. at 834, or “exceeded
contemporary bounds of decency of a mature, civilized society,” Lunsford, 17 F.3d at 1579.
The subjective component requires proof that prison officials acted wantonly and with
As did the Seventh Circuit in Lord, this court emphasizes the narrow nature of its ruling: had
defendants not shown overwhelming evidence of (1) plaintiff’s ulterior motive to gain attention,
confirmed by his actions and words both before and after his self-harm and (2) a complete lack of
anything more than a wholly superficial injury, then this claim of deliberate indifference may well
have survived defendants’ summary judgment motion, especially given Price’s and Hibma’s
inexplicable and undisputed decision to leave an unauthorized glass bottle in the possession of a
plainly disruptive and disgruntled inmate in direct defiance of DOC policy and their own orders to
deliberate indifference to a risk of serious harm to plaintiff. Id. Here, defendants also seek
summary judgment on plaintiff’s conditions-of-confinement claim against defendants
Anderson and Giroux because (1) Artis cannot establish a sufficiently serious deprivation
and (2) again, he sustained no injuries.
As for defendants’ first argument, in his complaint, and in his opposition to
summary judgment, Artis alleges other difficult conditions -- namely, cold temperatures
and constant lights -- but those allegations do not survive summary judgment. As for the
cold temperatures, the challenged limited property placement occurred during the summer
and defendants submit facts, which plaintiff does not dispute, the RHU1 does not have air
conditioning. Plaintiff purports to dispute this in responding to defendants’ proposed
finding of fact by claiming that the building has “central air conditioning,” citing to his
declaration for support, but the cited portion does not challenge defendants’ statement
that RHU1 lacks air conditioning. (Pl.’s Resp. to Defs.’ PFOFs (dkt. #42) ¶ 84.) On this
record, therefore, Artis has failed to raise a genuine issue of material fact as to the
temperature in his cell. As for the lights, Artis again fails to raise a genuine issue of material
fact challenging defendants’ assertion that only the dimmer lights were on 24 hours a day
for security purposes. In particular, while Artis contends that the lights were “bright,” he
failed to offer any evidence from which a reasonable jury could conclude that the bright
light, rather than just the dimmer light, was left on 24 hours a day. (Pl.’s Resp. to Defs.’
PFOFs (dkt. #42) ¶ 15). As for the dimmer light being left on consistently, the Seventh
Circuit has already held that “24–hour lighting involving a single, 9–watt fluorescent bulb
does not objectively constitute an ‘extreme deprivation.’” Vasquez v. Frank, 290 F. App’x
927, 929 (7th Cir. 2008) (quoting Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997)).
Still, crediting plaintiff’s and another inmate’s account that was Artis was deprived
of running water in his cell, toilet paper and access to a shower for at least six days, this
may be sufficient for a reasonable jury to find in his favor on the objective component of
this claim. As this court recently explained in Johnson v. Dunahay, No. 17-cv-941-wmc,
2020 WL 4053972 (W.D. Wis. July 20, 2020), the focus of this type of conditions of
confinement claim is “whether the prisoner had the ability to clean himself or his cell.” Id.
at *5. Specifically, as the Seventh Circuit has explained “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[.]” Budd v. Motley, 71 F.3d
840, 842 (7th Cir. 2013); see also 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 stated an Eight Amendment claim). Viewed
in isolation, perhaps defendants would have a point. See, e.g., Dye v. Lemon, 40 F. App’x
993, 996-97 (7th Cir. 2002) (holding that lack of toilet paper for multiple days does not
amount to a constitutional violation). The Seventh Circuit, however, instructs courts to
consider the combined conditions. See Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006)
(“Some conditions of confinement may establish an Eighth Amendment violation in
combination when each alone would not do so.”).
Unlike in each of the above-cited cases, however, Artis stops short of actually
attesting to the conditions of his cell or of his person during the six-day period. For
example, he offers no account that the toilet became filled with unflushed feces and urine,
that other unsanitary conditions were present in his cell, or that he was unable to clean his
body at all during this relatively short time period. Ultimately, the reason why the denial
of running water, toilet paper and a shower during a six-day period may implicate the
Eighth Amendment is because their denial created such squalor that his living conditions
fell below basic, humane conditions. Here, however, Artis fails to present any evidence -namely, a declaration describing the conditions of his cell or his body during this time
period -- from which a reasonable jury could conclude that the conditions of his
confinement were so extreme as to implicate the Eighth Amendment. On this record, the
court would have no choice but to grant summary judgment to defendant. See Beardsall v.
CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020) (“Summary judgment is the
proverbial ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence
it has that would convince a trier of fact to accept its version of events.” (internal citation
and quotation marks omitted)).
Given his pro se status, however, Artis will be given one last opportunity to meet his
burden of proof by supplemental evidence from which a reasonable jury could infer that
the alleged denial of running water, toilet paper and the opportunity to shower for six days
resulted in such inhumane or deplorable conditions to support an Eighth Amendment
claim. As detailed below, if plaintiff wishes to continue with this claim, then he must
submit the necessary proffer on or before September 29, 2021. If he fails to do so, the
court will grant this portion of defendants’ motion and direct entry of judgment in favor
of all defendants.
Finally, defendants seek summary judgment based on the fact that plaintiff
sustained no injuries from the conditions of his confinement. In making this argument,
defendants again rely on the Seventh Circuit’s decision in Lord. However, since claims
arising out of intolerable conditions of confinement present different types of injuries than
self-harm claims, the Lord opinion proves an ill-fit. Specifically, conditions-of-confinement
claims encompass a combination of conditions creating “a risk of particular discomfort and
humiliation.” See Hope v. Pelzer, 536 U.S. 730, 738 (2002); see also Karow v. Est. of Heyde,
No. 14-CV-395-JDP, 2017 WL 1194740, at *9 (W.D. Wis. Mar. 30, 2017) (explaining
that conditions-of-confinement deprivations include “exposing the inmate to substantial
risks of bodily harm without justification, inflicting unnecessary pain, causing unnecessary
humiliation, or offending contemporary standards of human decency”). As such, the court
rejects defendants argument that plaintiff’s claim fails as a matter of law because he lacks
evidence of physical injuries or impaired health. Nonetheless, the lack of evidence of
physical injuries or impaired health likely forecloses any claim for compensatory damages.
See, Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012) (under 42 U.S.C. § 1997e(e), a
prisoner cannot obtain compensatory damages without proving a physical injury).8
Because the court takes up the merits of defendants’ motion on the basis that plaintiff has failed
to proffer sufficient evidence to support a finding on the objective prong of his Eighth Amendment
conditions of confinement claim, the court need not reach defendants Giroux and Anderson’s
qualified immunity defense, other than to note that the defense requires them to accept plaintiff’s
version of the facts in seeking qualified immunity, see Taylor v. Ways, 999 F.3d 478, 482 (7th Cir.
2021), which defendants failed to do here.
IT IS ORDERED that:
1) Defendants’ motion for summary judgment (dkt. #28) is GRANTED IN PART
AND RESERVED IN PART. The motion is granted as to plaintiff’s claims
against defendants Price and Hibma, and reserved as to plaintiff’s claims against
defendants Anderson and Giroux.
2) Plaintiff may have until September 29, 2021, to offer additional evidence as to
the actual conditions of his confinement during the six-day period from July 27
to August 2, 2018.
3) Should plaintiff proffer supplemental proof, defendants Anderson and Giroux
may have 21 days to respond. If plaintiff fails to submit additional evidence,
the court will grant defendants Anderson and Giroux’s motion for summary
judgment and direct entry of judgment in favor of all defendants.
4) The trial date and all pretrial deadlines are STRUCK.
Entered this 8th day of September, 2021.
BY THE COURT:
WILLIAM M. CONLEY
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