The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
REGINALD DUNAHUE
ADC #106911 PLAINTIFF
No. 2:18-cv-103-DPM
WENDY KELLEY, Director, Arkansas
Department of Correction; MARSHALL
D. REED, Chief Deputy, Arkansas Department
of Correction; JEREMY C. ANDREWS, Warden,
EARU, ADC; JAMES DYCUS, Deputy Warden,
EARU, ADC; DAVID KNOTT, Major, EARU,
ADC; and STEPHANIE PALMER, Sergeant,
East Arkansas Maximum Security Unit, ADC DEFENDANTS
ORDER
The case is down to the temperature issue. The parties have filed
cross motions for summary judgment. The Court concludes, however,
that genuine issues of material fact exist. Depending upon their
severity and duration, conditions of confinement, including heat and
the lack of it, can violate the Eighth Amendment. Taylor v. Riojas,
141 S. Ct. 52, 53-54 (2020) (per curiam). As the Seventh Circuit observed
in a similar case, the combination of circumstances involved make this
kind of claim “peculiarly appropriate for resolution by the trier of
facts.” Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997).
According to an affidavit from the Warden of the East Arkansas
Regional Unit, temperatures are checked twice a day. Dunahue was in
the isolation unit between November 2017 and March 2018. The logs
reflect that the temperature there during that four-month period was
usually in the range of 60°-70° Fahrenheit. The logs show one extreme
temperature: 45.7° on one January day. The Warden also says
prisoners have thermal underwear and blankets. Doc. 183-1.
In his brief, which he affirmed under oath, Dunahue says the
winter was “really cold” — outside temperatures were, he says, between
19° and 12° at night. There are twelve large (5’ x 3’) exhaust fans pulling
air into the unit from the outside. He says the fans ran all the time. He
also says the officers “didn’t cut the Punitive Iso. heater on.” Doc.
181 at 1, 3-5. Earlier in the case, he offered two affidavits from other
prisoners confined there at the same time. They described the
conditions as “extreme cold” and “frigid.” Doc. 165 at 12 & 14. Ina
supplemental deposition, Dunahue testified that his thermal
underwear was stolen and the officers refused to replace it. He said he
had one blanket extras were refused. Doc. 183-4 at 7-8. He also said
the cold conditions resulted in his having a sore throat and a runny
nose.
Dunahue’s declaration about the temperatures is generalized,
especially as compared with the prison logs. But the Court cannot
make credibility calls on summary judgment. Nelson v. Correctional
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Medical Services, 583 F.3d 522, 528 (8th Cir. 2009). It’s unclear how the
prison checked the temperatures. The logs often reflect “P.M.” checks
in the afternoon, and where a time is shown, “A.M.” checks are in the
late morning. Dunahue is complaining about the cold during the night.
Plus, taking the disputed facts in his favor at this point, Dunahue had
no thermal underwear and one blanket. And the cold nights lasted for
four months. A jury could reasonably return a verdict for him if it
believed Dunahue and concluded that the logs were not conclusive on
the nighttime temperatures. Of course, Dunahue is not entitled to
summary judgment either because the jury might disbelieve him and
credit the logs and other evidence.
The officers are not entitled to qualified immunity at this point.
The disputed material facts prevent the Court from ruling, as a matter
of law, that the combination of circumstances did not create an
unconstitutional condition. Gregoire v. Class, 236 F.3d 413, 417 (8th Cir.
2000). The applicable law is clearly established. Prisoners are not
entitled to comfortable conditions, but neither must they endure
extreme cold without extra clothes or blankets for an extended
period. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Dixon v. Godinez,
114 F.3d 640, 642-43 (7th Cir. 1997); Henderson v. DeRobertis, 940 F.2d
1055, 1059 (7th Cir. 1991) (collecting cases).
Motions, Doc. 180 & 183, denied. The Court returns the case to the
Magistrate Judge to appoint counsel for trial. The Court encourages
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Dunahue and the defendants to consider consenting to trial before the
Magistrate Judge. One could be provided promptly. This older case
needs resolution. If consents are not received by 28 November 2022, a
Final Scheduling Order for trial before me will issue.
So Ordered.
Prete Fr
D.P. Marshall Jr.
United States District Judge
Octohn 20aAr
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