Passmore v. O'Leary

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AARON C. PASSMORE and JERRY O. )

GRIFFIN, )

)

Plaintiffs, )

) No. 14-cv-09868

v. )

) Judge Andrea R. Wood

BRAD JOSEPHSON, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Aaron C. Passmore and Jerry O. Griffin are pretrial detainees confined at Will

County Adult Detention Facility (“WCADF”). Plaintiffs claim that they suffered skin irritations

on their genitals from dirty underwear and were denied medical treatment for their symptoms.

Plaintiffs thus have brought this lawsuit pursuant to 42 U.S.C. § 1983, alleging violations of their

rights under the Fourteenth Amendment and naming as Defendants Will County, WCADF

Warden Brad Josephson, in his official capacity, and current and former Will County employees

Michael O’Leary, Brian Fink, Mike Kelley, and Kelly Bargo, in their individual capacities.1

Defendants now move for summary judgment. (Dkt. No. 69.) For the following reasons, their

motion is granted.

1 Plaintiffs have styled their Second Amended Complaint as alleging violations of their rights against

cruel and unusual punishment under the Eighth Amendment. As Defendants point out in their motion for

summary judgment, however, Plaintiffs are pretrial detainees and thus their conditions of confinement

claims arise under the Due Process Clause of the Fourteenth Amendment. See Rice ex rel. Rice v. Corr.

Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012). But there is “little practical difference, if any, between the

standards applicable to pretrial detainees and convicted inmates when it comes to conditions of

confinement claims.” Smith v. Dart, 803 F.3d 304, 309–10 (7th Cir. 2015).

BACKGROUND

Unless otherwise noted, the following facts are undisputed.

I. The Parties

At all times relevant to their complaint, Plaintiffs were pretrial detainees at WCADF.

(Defs.’ R. 56.1 Stmt. of Mat. Facts in Support of Summ. J. (“DSMF”) ¶ 1, Dkt. No. 71.)

Defendant Will County is a unit of local government operating within the State of Illinois. (Id.

¶ 6.) Defendant Kelley serves as Sheriff of Will County. (Id. ¶ 2.) Defendant O’Leary previously

served as Warden of WCADF but later was succeeded in that position by Defendant Josephson.

(Id. ¶ 3.) Defendant Fink served as Deputy Chief of Operations at WCADF, and Defendant

Bargo, an employee of the Will County Sheriff’s Office, served as the laundry assistant there.

(Id. ¶¶ 4, 5.) Bargo has been employed as a laundry assistant since August 2014. (Id. ¶ 54.) Her

duties include supervising “tenders,” detainees who are responsible for doing laundry at

WCADF. (Id.) Bargo reports to the Deputy Chief of Support Services. (Id. ¶ 55.)

II. WCADF’s Laundry Process

WCADF’s laundry process was established before Bargo began working as a laundry

assistant. (Id. ¶ 56.) WCADF uses four washing machines to launder detainees’ underwear,

socks, T-shirts, towels, and sheets. (Id. ¶ 12.) These clothing items for all 800–900 inmates are

mixed together indiscriminately. (Defs.’ Resp. to Pls.’ Supplemental R. 56.1 Stmt. of Disputed

[sic] Mat. Facts (“DRMF”) ¶ 82, Dkt. No. 76.) No one checks the underwear for urine or fecal

stains before placing it into the washing machine. (DSMF ¶ 16.) According to Bargo, soap and

bleach are added to the washing machines automatically. (Id. ¶ 13.) The soap and bleach lines

are checked and filled by the maintenance staff. (Id. ¶¶ 13–14.) And the machine does not give

an alert or warning if it is low on soap or bleach. (Pl.’s R. 56.1 Resp. to Defs.’ Stmt. of Mat.

Facts (“PRMF”) ¶ 13, Dkt. No. 72-1.) Bargo does not know how much soap or bleach goes into

each load. (Id.) She checks whether soap is present by looking for bubbles, and if she does not

see any, she turns off the machine and notifies the maintenance staff. (DSMF ¶ 14.) However,

Bargo cannot visually check in the same way whether bleach is present. (Id. ¶ 15.) Passmore

testified that he could not smell any soap or bleach on the stained underwear. (PRMF ¶ 69.)

Once laundry is washed and dried, it is folded, placed on the laundry cart, and randomly

distributed to the detainees. (DSMF ¶ 17.) Tenders are instructed to look at the underwear as they

fold it and check for damage or stains. (Id. ¶ 18.) Tenders are also instructed that if they would

not wear the underwear themselves, they should not put it on the cart for distribution. (Id. ¶ 19.)

For example, if he sees urine or fecal stains, the tender should dispose of the underwear and log

the disposal by indicating size and color. (Id. ¶¶ 20–21.)

Detainees exchange their clothing items, including underwear, twice per week. (Id. ¶ 8.)

Tenders bring carts of laundered clothing into the general housing units and distribute the

laundry under the supervision of Bargo or another laundry assistant. (Id. ¶ 9.) At this point,

detainees exchange their worn clothing items and check their newly-received items for sizing

and damage, such as holes or stains. (Id. ¶¶ 10–11.) According to Bargo, detainees occasionally

wish to exchange their underwear due to damage, but no one has ever complained to her about

stains. (Id. ¶¶ 58, 61.) Plaintiffs dispute this claim, as both testified that they complained to

Bargo about receiving stained underwear but she did not allow them to exchange it. (PRMF

¶¶ 58–59.) Bargo further testified that no detainee has ever complained to her about a genital

rash, but if someone had done so, she would have offered him a “bio bag” for his underwear.

(DSMF ¶ 61.)

III. Passmore’s Claims

Passmore became a pretrial detainee at WCADF on April 7, 2014. (Id. ¶ 24.) From the

start, he received stained underwear, but he did not start experiencing any symptoms until June

2014. (Id.) That month, Passmore asked to exchange his stained underwear, but Bargo denied his

request. (Id. ¶ 25.) Passmore had already left the distribution area and returned to his cell before

seeking the exchange, however. (Id. ¶ 26.) And Bargo testified that she may refuse an exchange

if the detainee fails to check the item before accepting it and leaving. (Id. ¶ 60.) A few days later,

Passmore developed a red, itchy rash on his groin area and on his inner thighs and buttocks,

which lasted a couple of months. (Id. ¶ 27.) The rash started off as “bumps,” then “turned reddish

and started to become raw.” (DRMF ¶ 68.) According to Passmore, the rash affected his ability

to move and walk around and caused a stinging sensation when his thighs rubbed together and

when he defecated. (PRMF ¶ 35.) Passmore had never experienced a genital rash before his

admission to WCADF. (DRMF ¶ 75.)

Then, in October or November 2014, Passmore developed another rash in the same area,

which lasted for about two or three months. (DSMF ¶ 28.) Passmore testified that this time, he

complained of the “dirty, brown stained underwear” to Bargo and asked for an underwear

exchange before leaving the distribution area, but Bargo again denied his request. (DSMF ¶ 29;

Pls.’ Stmt. of Add’l Facts that Raise a Genuine Dispute (“PSAF”) ¶ 77, Dkt. No. 72-1.)

Passmore subsequently developed a third rash in March 2015, after he again received stained

underwear. (DSMF ¶ 30.) At this point, Passmore tried to wash the underwear but ultimately

decided to stop wearing it altogether. (Id. ¶ 31.)

Passmore put in three healthcare requests in October and November 2014 regarding the

rash. (Id. ¶ 32.) He also filed grievances about the dirty underwear in November 2014, March

2015, and April 2015, but the issue was never addressed. (DRMF ¶ 73.) In addition, Passmore

spoke to a nurse about the rash in November 2014, but he did not consult a doctor. (DSMF ¶ 33.)

On October 16 and 21, 2014, Passmore saw a doctor for low back pain and attempted to discuss

his rash, but the doctor advised him to submit a separate request slip. (Id.)

IV. Griffin’s Claims

Griffin became a pretrial detainee at WCADF in May 2014. Upon his arrival, Griffin was

assigned to the medical unit or “M-pod” at WCADF, where he stayed until August 2014. (Id.

¶ 46.) After his arrival at WCADF, Griffin immediately began experiencing issues with dirty

underwear. (Id. ¶ 36.) He developed “bumps” on the right side of his genitals and in between his

thighs for a little over a week. (Id. ¶ 41.) However, even though Griffin told the doctor about his

rash and submitted one or more medical slips about it, he did not receive any medical attention.

(Id.) In August and September 2014, when Griffin was no longer housed in the M-pod, he

requested an underwear exchange, but Bargo would not allow it. (Id. ¶ 39.) When Griffin washed

the underwear on his own, he noticed that his symptoms improved. (Id. ¶ 45.) Like Passmore,

Griffin had never experienced a genital rash before his admission to WCADF. (DRMF ¶ 80.)

Griffin complains of several other incidents of mistreatment in addition to the dirty

underwear issue. As mentioned above, Griffin was assigned to the M-pod upon his arrival at

WCADF in May 2014 until August 2014; this was due to his need for treatment for an orbital

(eye socket) fracture. (DSMF ¶ 46.) Griffin claims that WCADF medical staff mistreated his

fracture and denied him pain medication. (Id.) But Griffin’s orbital fracture was seen by medical

staff every two weeks. (Id.) Griffin was also taken to Loyola Hospital twice during this time

period, where doctors checked his vision. (Id. ¶ 47.) Griffin was offered Tylenol for his eye pain,

but he refused. (Id. ¶ 49.)

In addition, Griffin claims that while he was housed in the M-pod, the lights would stay

on all night, and unidentified staff entering the unit either intentionally slammed the doors or

failed to prevent the doors from slamming shut. (Id. ¶ 52.) These conditions gave Griffin a

headache. (Id.) Griffin also did not have access to the outside while housed in the M-pod, which

he claims deprived him of fresh air. (Id. ¶ 53.)

Finally, Griffin asserts that he was humiliated during several strip searches. On October

10, 14, and 15, 2014, Griffin was subjected to strip searches as part of a unit-wide shakedown.

(Id. ¶ 50.) The strip searches were performed by male corrections officers, but several female

corrections officers were also present at that time. (Id. ¶¶ 50–51.) The female officers were

walking past Griffin’s cell or located 10 to 20 feet away from the area. (Id. ¶ 51.)

DISCUSSION

In their motion for summary judgment, Defendants argue that the undisputed evidence

shows Plaintiffs cannot prove their claims, that Will County is not liable for the alleged

constitutional violations, and that the individual Defendants are protected by qualified immunity.

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Summary judgment will be denied if “a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The evidence of the

nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at

255. However, a nonmoving party “may not rest upon the mere allegations or denials of his

pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at

248 (internal quotation marks omitted). “In a § 1983 case, the plaintiff bears the burden of proof

on the constitutional deprivation that underlies the claim, and thus must come forward with

sufficient evidence to create genuine issues of material fact to avoid summary judgment.”

McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).

I. Defendant Will County

As a preliminary matter, Plaintiffs have sued Josephson in his official capacity as Sheriff

of Will County, “which is effectively the same as having brought suit against the County . . .

itself.” Holloway v. Del. Cty. Sheriff, 700 F.3d 1063, 1071 (7th Cir. 2012).2 Accordingly, the

Court dismisses the claims against Josephson as duplicative of the claims against Will County.

II. Count I – Passmore’s § 1983 Claim

Section 1983 provides that a person may not be deprived of any constitutional right by an

individual acting under color of state law and authorizes plaintiffs to sue persons who have

violated such rights. See Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). “The Constitution

does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v.

Brennan, 511 U.S. 825, 832 (1970) (internal quotation marks omitted). Under the Constitution,

pretrial detainees “are entitled to confinement under humane conditions which provide for their

basic human needs.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012)

(internal quotation marks omitted).

Here, Passmore asserts that Defendants subjected him to cruel and unusual punishment in

violation of his Fourteenth Amendment rights when they issued him dirty underwear and refused

to allow him to exchange it and when they ignored his requests for medical treatment for his

2 In Carver v. Sheriff of LaSalle County, 324 F.3d 947 (7th Cir. 2003), the Seventh Circuit certified as a

question to the Illinois Supreme Court “whether, and if so when, Illinois requires counties to pay

judgments entered against a sheriff’s office in an official capacity.” The Illinois Supreme Court answered

that, “[b]ecause the office of the sheriff is funded by the county, the county is therefore required to pay a

judgment entered against a sheriff’s office in an official capacity.” Carver v. Sheriff of LaSalle Cty., Ill.,

787 N.E.2d 127, 141 (Ill. 2003). Thus, in its own Carver decision, the Seventh Circuit held that

“[b]ecause state law requires the county to pay, federal law deems it an indispensable party to the

litigation.” 324 F.3d at 948.

genital rashes. In other words, Passmore brings a claim for unconstitutional conditions of

confinement based on dirty underwear and a claim for deprivation of medical care based on his

untreated rashes.

A. Conditions of Confinement Claim

To evaluate a claim that the conditions of a plaintiff’s confinement are unconstitutional,

the Court conducts a two-step inquiry: first, the Court considers whether the adverse conditions

of which the plaintiff complains are “sufficiently serious,” such that the acts or omissions of

prison officials giving rise to the conditions deprive the plaintiff of a “minimal civilized measure

of life’s necessities.” Id. at 664–65. If so, the Court then inquires whether the defendants have

been “deliberately indifferent to the adverse conditions.” Id. at 665. This is a “demanding test.”

Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016).

1. Sufficiently Serious

The Seventh Circuit has not expressly addressed whether the issuance of dirty underwear

constitutes a constitutional violation; however, other federal courts faced with this question have

concluded that it does not. See, e.g., Crawford v. Caddo Corr. Ctr., No. 5:14-cv-3198, 2015 WL

3622689, at *3 (W.D. La. June 9, 2015) (finding no Eighth Amendment injury despite plaintiff’s

allegations that he “received boxer shorts with feces stains in the rear and unidentifiable stains in

front” that caused “jock-itch serious enough to cause bleeding”); Sandstrom v. Hoffer, No. 08-

3245-SAC, 2011 WL 4553067, at *4 (D. Kan. Sept. 29, 2011) (holding that plaintiff who was

issued “laundered but stained underwear” failed to state conditions of confinement claim); Tapp

v. Proto, 718 F. Supp. 2d 598, 619 (E.D. Pa. 2010) (holding that inmate forced to wear dirty,

torn, and stained underwear failed to state constitutional injury).

Yet a few aspects of Passmore’s situation suggest a different result might be warranted

here. First, Passmore has provided evidence that he was exposed to urine and feces, which the

Seventh Circuit has consistently held to be proof of a sufficiently serious deprivation. See Myers

v. Ind. Dep’t of Corr., 655 F. App’x 500, 503–04 (7th Cir. 2016) (affirming dismissal of Eighth

Amendment claim where prisoner alleged he received inadequately washed clothing for four

years but suggesting that such claim could be stated based on exposure to clothing residue that

“might transmit serious diseases,” such as urine and human waste);3 Vinning-El v. Long, 482

F.3d 923, 924 (7th Cir. 2007) (per curiam) (summarizing cases where allegations of exposure to

human waste survived summary judgment). Moreover, Passmore testified that he suffered a

physical reaction in the form of an itchy and painful genital rash. Compare Harris v. Fleming,

839 F.2d 1232, 1235 (7th Cir. 1988) (rejecting plaintiff’s claim where he “experienced

considerable unpleasantness, [but] he suffered no physical harm”) with Martin v. Lane, 766 F.

Supp. 641, 648 (N.D. Ill. 1991) (denying summary judgment where plaintiff showed that denial

of access to shower caused him to develop a body rash because “allegations of resulting physical

harm makes [sic] this claim actionable”).

Nonetheless, even viewing the totality of the record presented and drawing all reasonable

inferences in Passmore’s favor, this Court cannot conclude that the adverse conditions Passmore

faced with respect to the dirty underwear were sufficiently serious to support his constitutional

claim. While Passmore contends that he was prevented from exchanging the dirty underwear, he

admits that he was not forced to wear it and he eventually decided not to do so. Cf. Isby v. Clark,

100 F.3d 5002, 505–06 (7th Cir. 1996) (recognizing potential constitutional violation where

3 Myers is an unpublished Seventh Circuit order issued after January 1, 2007. Although not precedential,

the order’s reasoning is persuasive and provides a useful point of comparison here. See Fed. R. App. P.

32.1(a); 7th Cir. R. 32.1(b). The same reasoning applies to the Court’s subsequent citations to the Seventh

Circuit’s orders in Smith v. Roper, Gevas v. Mitchell, Myrick v. Anglin, Norwood v. Ghosh, Jerricks v.

Schomig, and Vasquez v. Frank.

plaintiff was locked in segregation cell with urine and feces on walls); Johnson v. Pelker, 891

F.2d 136, 139–40 (7th Cir. 1989) (same). In addition, Passmore admits that he had ample

opportunity to wash the underwear, and both he and Griffin testified that they did so. See Gates

v. Cook, 376 F.3d 323, 342 (5th Cir. 2004) (finding no constitutional injury where inmates were

required to wash their own clothes with bar soap); Darris v. Mazzaie, No. 12-cv-01559-REB-

CBS, 2013 WL 5291940, at *10 (D. Colo. Sept. 17, 2013) (finding no constitutional injury

where plaintiff “does not allege that he was unable to bathe or wash his clothes himself”); Myers

v. City of New York, No. 11-Civ-8525(PAE), 2012 WL 3776707, at *8 (S.D.N.Y. Aug. 29, 2012)

(finding no constitutional injury where prisoner had opportunity and means to clean his own

clothes). Furthermore, Passmore’s possession of the dirty underwear was always of a limited

duration, as WCADF circulated newly-laundered sets of underwear twice per week. Gordon v.

Sheahan, No. 96 C 1784, 1997 WL 136699, at *8 (N.D. Ill. Mar. 24, 1997) (“Having to wear the

same clothes for two or three weeks is not a deprivation of constitutional magnitude.”); Martin v.

Lane, 766 F. Supp. 641, 648 (N.D. Ill. 1991) (holding that deprivation of laundry services for

between three and eighteen days is not sufficiently serious injury); see also Goss v. Bd. of Cty.

Comm’rs of Creek Cty., No. 13-CV-0374-CVE-TLW, 2014 WL 4983856, at *14 (N.D. Okla.

Oct. 6, 2014) (holding that plaintiff forced to wear urine-stained pants for three days did not

suffer sufficiently serious injury).

Finally, while Passmore asserts that he developed an itchy, painful rash on his genitals,

he has not provided evidence showing that his rash was particularly serious. A medical condition

is sufficiently serious if it “has been diagnosed by a physician as mandating treatment or . . . is so

obvious that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea,

631 F.3d 843, 857 (7th Cir. 2011). Passmore has not shown that his rash was diagnosed by a

physician; his only evidence is after-the-fact opinion testimony from a nurse practitioner, Tiffany

Ferguson, that the symptoms Passmore described are consistent with irritant contact dermatitis.

But Ferguson also testified that the dermatitis was not chronic or life-threatening and did not

pose a risk of lingering disability. And Passmore’s own testimony demonstrates that the rash

faded on its own after a few months. Nor has Passmore offered any evidence or testimony that a

lay person would have perceived that his rash obviously required medical attention. See, e.g.,

Ware v. Fairman, 884 F. Supp. 1201, 1206 (N.D. Ill. 1995) (describing plaintiff’s rash as not

“serious” condition); see also Tasby v. Cain, 86 F. App’x 745, 746 (5th Cir. 2004) (“[Plaintiff’s]

assertion that he suffered a rash as a result of the [prison’s] back restraints . . . does not establish

that he suffered serious harm”); Thompson v. Paleka, No. 17-00531 SOM-KJM, 2017 WL

5309608, at *6 (D. Haw. Nov. 13, 2017) (finding that plaintiff failed to allege facts showing that

his rash, which he attributed to prison’s dirty showers, was sufficiently serious); Vance v.

Shearin, No. ELH-14-272, 2014 WL 470075, at *3 (D. Md. Feb. 4, 2014) (holding that

plaintiff’s genital rash does not constitute serious medical need). At most, Passmore presented

testimony from Ferguson that dermatitis is treated by removing the irritant and providing gentle

skin care, such as topical corticosteroids, emollient creams, and oatmeal baths. (PRMF ¶ 67.)

To be clear, the Court does not wish to minimize the fact that Passmore experienced

significant personal discomfort. But ultimately, based on the facts at hand and abundant federal

case law addressing similar situations, the issuance of dirty underwear to Passmore and refusal to

allow him to exchange it was not sufficiently serious to support his conditions of confinement

claim.

2. Deliberate Indifference and Monell

Even if Passmore’s claim regarding the dirty underwear satisfied the first factor of his

constitutional claim, it would still fail because he has not shown deliberate indifference. “An

official is deliberately indifferent when he is subjectively aware of the condition or danger

complained of, but consciously disregards it.” Rice, 675 F.3d at 665; Gray, 826 F.3d at 1008

(“The warden must have known of and disregarded an excessive risk to inmate health or safety.”

(internal quotation marks and alteration brackets omitted)). In addition, Defendants must have

been “both aware of facts from which the inference could be drawn that a substantial risk of

serious harm existed, and he must also have drawn the inference.” Gray, 826 F.3d at 1008.

Plaintiffs have pointed to no such evidence; at most, Passmore complained to Bargo about the

dirty and stained underwear but not about any of the side effects he experienced. No reasonable

jury could infer from these facts that Bargo “acted with the equivalent of criminal recklessness”

regarding Passmore’s safety. Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir. 2008).

As to the other individual Defendants, the record contains no evidence that any of them

had personal knowledge of or were personally responsible for the dirty underwear. See Smith v.

Roper, 12 F. App’x 393, 397 (7th Cir. 2001) (“A prison official cannot incur § 1983 liability

unless that officer is shown to be personally responsible for a deprivation of a constitutional

right.” (internal quotation marks omitted)); see also Tesch v. Cty. of Green Lake, 157 F.3d 465,

476 (7th Cir. 1998) (“Because the officers did not inflict a constitutional injury on [plaintiff], the

County, Chief, and the [supervisors] cannot be liable to [plaintiff].”). While Passmore submitted

health care requests and grievances about his rash, “non-medical personnel not directly involved

in an inmate’s medical care are usually not liable for their review and/or denial of medical

grievances.” Ruiz v. Williams, 144 F. Supp. 3d 1007, 1013 (N.D. Ill. 2015); see also Gevas v.

Mitchell, 492 F. App’x 654, 656 (7th Cir. 2012) (dismissing claim where “[Plaintiff] alleges no

personal involvement by the warden outside of the grievance process”).

Similarly, even if Passmore could show that he suffered a constitutional deprivation, Will

County would still be entitled to summary judgment because Passmore has not presented

evidence that his injury was the result of an existing policy, rather than an isolated incident. In

Monell v. Department of Social Services, 463 U.S. 658 (1978), the Supreme Court held that a

§ 1983 claim may be brought against a local governmental entity for the actions of its employees

only if those actions were taken pursuant to an unconstitutional policy or custom. Id. at 694.

Passmore contends that the WCADF had an unconstitutional policy of requiring all inmates to

share underwear with each other. However, Passmore offers no legal authority holding that such

a policy constitutes cruel and unusual punishment, and this Court is not convinced. See

Crawford, 2015 WL 3622689, at *2 (rejecting plaintiff’s Eighth Amendment claim based on

prison’s communal laundry system). Moreover, the record contains no evidence that any inmate

other than Passmore and Griffin experienced genital rashes. See Lunsford v. Bennett, 17 F.3d

1574, 1580 (7th Cir. 1994) (“This temporary discomfort affecting only a few prisoners hardly

violates common notions of decency.”).

Passmore also characterizes as unconstitutional Bargo’s reliance on the maintenance staff

to ensure that the laundry machines have adequate soap and bleach and her failure to inspect

every piece of underwear before distribution. But Passmore offers no legal support for his

position, and the Constitution does not require detention facilities to go to such extensive lengths.

See Tesch, 157 F.3d at 476 (rejecting Eighth Amendment claim where plaintiff “was not denied

any of his basic human necessities; he just did not receive the level of comfort that he

demanded”); Miller v. Brown, No. 07-2020(JLL), 2007 WL 1876506, at *4 (D.N.J. June 26,

2007) (“While any person’s desire for spotless cleaning, perfect washing facilities and weekly

laundry service is understandable, lack of such niceties cannot amount to a violation of

constitutional magnitude.”). Indeed, Passmore does not dispute that Will County’s policy

requires the use of soap and bleach in every load of laundry and the disposal of any underwear

stained with urine or feces or that the tender would not himself wear. In addition, if a detainee

receives underwear with damage or stains, he may request an exchange, which will be granted at

the discretion of laundry staff.

Therefore, in sum, the Court finds that summary judgment is warranted as to all

Defendants on Passmore’s conditions of confinement claim.

B. Deprivation of Medical Care Claim

Passmore also claims that Defendants violated his constitutional rights by denying him

medical attention for his genital rashes. To demonstrate a triable issue of fact as to whether

Defendants unconstitutionally deprived him of medical care, Passmore must show an objectively

serious medical condition to which a state official was deliberately indifferent. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 828–29 (7th Cir. 2009).

The record here provides no indication who prevented Passmore from receiving medical

attention.4 In addition, for reasons explained above, Passmore has failed to adduce sufficient

evidence that his genital rash was an objectively serious medical condition. A reasonable jury

could not conclude that the alleged failure to treat Passmore’s medical condition rose to the level

of deliberate indifference to a serious medical need. Cf. Myrick v. Anglin, 496 F. App’x 670, 674

(7th Cir. 2012) (holding that plaintiff suffering from hernia, herpes virus, and excruciatingly

painful MRSA skin infections should have received medical treatment); Gutierrez v. Peters, 111

4 Passmore claims only that he submitted three healthcare request slips regarding the rash but never saw a

doctor about it. (DSMF Ex. A at 43–44.)

F.3d 1364, 1371 n.5 (holding that plaintiff who experienced “excruciating pain, a purulent

draining infection, and fever in excess of 100 degrees” should have received medical treatment).

Therefore, the Court grants summary judgment in Defendants’ favor on Passmore’s

deprivation of medical claim as well.5

III. Count II – Griffin’s § 1983 Claim

The Court turns next to Count II, Griffin’s § 1983 claim. Griffin echoes Passmore’s

allegations regarding Defendants’ issuance of dirty underwear, refusal to allow him to exchange

the underwear, and denial of medical treatment for his rash. For the same reasons as with respect

to Passmore, Griffin’s claims relating to the dirty underwear and resulting rash do not rise to the

level of a constitutional injury. But Griffin also contends that Defendants failed to treat his

orbital fracture adequately, denied him fresh air, and left the lights on and slammed doors at

night while he was trying to sleep in the M-pod.6 Moreover, Griffin asserts that after he was

moved out of the M-pod, Defendants caused him to be strip-searched in front of female

correctional officers on multiple occasions. In addition to considering these additional claims on

their own merits, the Court also must consider whether the totality of Griffin’s claimed

conditions of confinement is enough to survive summary judgment. See Budd v. Motley, 711

F.3d 840, 842 (7th Cir. 2013) (“[C]onditions of confinement, even if not individually serious

enough to work constitutional violations, may violate the Constitution in combination when they

5 Passmore does not present any separate arguments in opposition to summary judgment on his Monell

claim for deprivation of medical care. Therefore, the Court considers any such argument waived. See

Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004); Swanigan v. Trotter, 645 F.

Supp. 2d 656, 681 (N.D. Ill. 2009).

6 The complaint also includes allegations that Defendants ate in Griffin’s cell. However, it is unclear how

such conduct could constitute a constitutional violation. More importantly, Griffin does not address this

alleged misconduct in his response to Defendants’ summary judgment motion, so the Court considers the

claim waived. Kramer, 355 F.3d at 964 n.1.

have ‘a mutually enforcing effect that produces the deprivation of a single, identifiable human

need.’” (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991))).

A. Mistreatment of Orbital Fracture

Griffin claims that he was denied adequate medical care for his orbital fracture. However,

he offers no proof in support of this allegation. The record demonstrates that Griffin was housed

in the M-pod and evaluated by medical staff every two weeks. Twice during his first two months

at WCADF Griffin was also taken to Loyola Hospital, where doctors checked his vision. See,

e.g., Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (granting summary judgment in

favor of defendant-doctor who correctly diagnosed condition, ordered further testing, and

consulted with plaintiff-prisoner about treatment). Finally, Griffin was offered Tylenol for his

eye pain, which he refused. See, e.g., Norwood v. Ghosh, 723 F. App’x 357, 364 (7th Cir. 2018)

(finding no deliberate indifference where defendant-doctor denied plaintiff’s request for Vicodin

and prescribed Tylenol-3 instead); cf. Walker, 293 F.3d at 1039 (denying summary judgment as

to defendant-nurse who refused to administer prescribed plaintiff-prisoner’s pain medication and

accused him of “only want[ing] to get high”). Griffin also has not offered any evidence that he

suffered extreme pain or permanent damage. See Daniel v. Cook Cty., 833 F.3d 728, 731

(reversing district court’s grant of summary judgment where plaintiff-prisoner offered evidence

that treatment caused permanent damage to his hand and wrist); Rodriguez v. Plymouth

Ambulance Serv., 577 F.3d 816, 829 (7th Cir. 2009) (holding that “minor pains cannot give rise

to [an Eighth Amendment] claim”).

Based on these facts, no reasonable juror would find that Griffin was unconstitutionally

deprived of medical care. See, e.g., Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (“What

we have here is not deliberate indifference to a serious medical need, but a deliberate decision by

a doctor to treat a medical need in a particular manner. [Plaintiff] disagrees with the way that

treatment was administered, but a mere disagreement with the course of the inmate’s medical

treatment does not constitute an Eighth Amendment claim of deliberate indifference.” (internal

quotation marks omitted)).

B. Denial of Fresh Air

Griffin also alleges that Defendants denied him fresh air and access to the outside while

he was housed in the M-pod.

The Seventh Circuit has suggested that detainees have a constitutional right to “sunshine

and fresh air.” Jerricks v. Schomig, 65 F. App’x 57, 58 (7th Cir. 2003); see also Board v.

Farnham, 394 F.3d 469, 486 (7th Cir. 2005) (recognizing constitutional right to adequate

ventilation). But Griffin offers no evidence that the lack of fresh air or poor ventilation in M-pod

was sufficiently serious to constitute a constitutional violation. To start, Griffin offers only his

own testimony that “the ventilators is [sic] all clogged up.” (DSMF Ex. B at 113:19–20); see

Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997) (rejecting plaintiff’s “conclusory

allegations, without backing from medical or scientific sources, that the rank air exposed him to

diseases and caused respiratory problems which he would not otherwise have suffered”). While

Defendants do not dispute that inmates housed in the medical unit had no outside access, Griffin

does not claim to have suffered any physical harm or adverse health outcome. See Gray, 826

F.3d at 1006 (holding that a plaintiff must “show that he suffered some cognizable harm from the

overall . . . environment”); see also Davis v. Williams, 216 F. Supp. 3d 900, 909 (N.D. Ill. 2016)

(finding plaintiff raised plausible Eighth Amendment claim where he suffered a “direct physical

manifestation of the harm caused by the poor ventilation”). Furthermore, the Court observes that

Griffin was only temporarily housed in the M-pod while he received treatment for his orbital

fracture—a fact which weighs against his conditions of confinement claim. See Isby v. Brown,

856 F.3d 508, 522 (7th Cir. 2017) (“‘[T]he length of confinement cannot be ignored in deciding

whether the confinement meets constitutional standards.’” (quoting Hutto v. Finney, 437 U.S.

678, 686 (1978))); Gray, 826 F. 3d at 1005 (instructing that an adverse condition’s duration may

affect whether it is an Eighth Amendment violation). And there is no indication that Griffin was

denied outside access after August 2014, when he was no longer housed in the medical unit at

WCADF.

Even if stale air or poor ventilation in M-pod was sufficiently serious to constitute a

constitutional violation, Griffin cannot prove deliberate indifference. Griffin has not established

that any Defendant knew that the lack of outside access posed a substantial risk to his health; he

has not shown that he complained to anyone nor that he unsuccessfully requested to go outside.

Therefore, there is no triable issue as to whether Defendants intentionally subjected Griffin to

pain or suffering by keeping him indoors while he underwent treatment for his orbital fracture.

C. Lights and Slamming Doors

In addition, Griffin claims that while he was housed in the M-pod, the lights stayed on all

night and staff entering the unit would slam the doors, giving him a headache. As to the lights,

the Seventh Circuit has held that 24-hour lighting does not objectively constitute an extreme

deprivation as required for a conditions of confinement claim. Vasquez v. Frank, 290 F. App’x

927, 929 (7th Cir. 2008); see also Allen v. Hardy, No. 11 C 4147, 2012 WL 5363415, at *8 (N.D.

Ill. Oct. 26, 2012) (dismissing plaintiff’s claim based on “cell house lights . . . beaming on high

beams 24 hours a day” where his only injury was minor sleep deprivation). With respect to the

slamming doors, the Seventh Circuit has required plaintiffs to prove that the noise levels are

near-constant and pose serious risk of injury. Compare Lunsford, 17 F.3d at 1577 n.2 & 1580

(“Subjecting a prisoner to a few hours of periodic loud noises that merely annoy, rather than

injure the prisoner does not demonstrate a disregard for the prisoner’s welfare.”) with Antonelli v.

Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996) (recognizing potential due process violation where

plaintiff alleged that noises occurred “every night, often all night”). Griffin’s proffered evidence

fails to meet this standard. And once again, Griffin has not put forward evidence that he

complained about the lights or slamming doors. Nor has he otherwise shown that any Defendant

had subjective knowledge of his pain and suffering. Thus, Griffin cannot prove that Defendants

acted with deliberate indifference regarding the lights and slamming doors.

D. Strip-Searches

Finally, Griffin claims that he was subjected to multiple strip-searches during which

female officers were present or nearby. “A strip-search in jail or prison can be cruel and unusual

punishment . . . [if] motivated by a desire to harass or humiliate rather than by a legitimate

justification, such as the need for order and security in prisons.” King v. McCarty, 781 F.3d 889,

897 (7th Cir. 2015). But here, Griffin has offered no evidence that he was strip-searched for

purposes of humiliation; rather, the record suggests that the strip searches occurred as part of a

unit-wide shakedown. Cf. id. (finding that strip-search may have violated Eighth Amendment

where plaintiff was only inmate targeted, there was no safety justification, and officers mocked

plaintiff’s nakedness). Moreover, the mere presence of female officers while a male plaintiff is

nude does not constitute a constitutional violation. See Calhoun v. DeTella, 319 F.3d 936, 939

(7th Cir. 2003) (“[T]he strip search of a male prisoner in front of female officers, if conducted

for a legitimate penological purpose, would fail to rise to the level of an Eighth Amendment

violation.”); Johnson v. Phelan, 69 F.3d 144, 146–48 (7th Cir. 1995) (dismissing plaintiff’s

complaint that female officers stood guard while he showered and noting, “[h]ow odd it would

be to find in the [E]ighth [A]mendment a right not to be seen by the other sex”). Therefore,

Griffin’s strip-search claim also fails.

E. Totality of Griffin’s Claims

As noted above, the Court must also evaluate Griffin’s claim as a whole to determine

whether his overall conditions of confinement violate his constitutional rights. In cases where the

totality of adverse conditions has been found sufficient, the various allegations suggest the

extreme deprivation of a single basic human need. E.g., Gray, 826 F.3d at 1005 (finding that

plaintiffs’ claims of lack of access to adequate cleaning supplies and pest infestations do not

individually constitute Eighth Amendment violations but, taken together, show deprivation of

“basic human need of rudimentary sanitation”); Davis, 216 F. Supp. 3d at 906–910 (concluding

that plaintiffs’ complaints of contaminated water, pest infestation, inadequate ventilation, and

lack of adequate cleaning supplies together indicate “sufficiently serious hygienic conditions”).

By contrast, here, Griffin’s allegations span a wide spectrum of issues, ranging from unsanitary

conditions to lack of medical care, noise and light disturbances, and humiliation tactics. Griffin

does not identify the deprivation of any specific need, instead asking the Court simply to

conclude that “the conditions of confinement amounted to a constitutional violation.” (Pl.’s

Mem. in Resp. to Defs.’ R. 56 Mot. for Summ. J. at 3, Dkt. No. 72.) Ultimately, even considered

in their totality, Griffin’s various claims do not amount to the denial of “the minimal civilized

measure of life’s necessities.” Farmer, 511 U.S. at 834. Therefore, the Court grants summary

judgment in favor of all Defendants as to Count II as well.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. No. 69) is

granted in its entirety. As the Court finds that Plaintiffs cannot establish their claims on the

merits, the Court need not consider whether any individual Defendant might be entitled to the

affirmative defense of qualified immunity.

ENTERED:

Dated: March 27, 2019 techy

Andrea R. Wood

United States District Judge

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