Sibley v. Dart

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MOIRSCHE TERRELL SIBLEY (M21315), )

) Case No. 17-cv-6298

Plaintiff, )

) Judge Robert M. Dow, Jr.

v. )

)

THOMAS J. DART, et. al., )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

For the reasons stated below, Defendants’ motion to dismiss Plaintiff’s third amended

complaint for failure to state a claim [51] is granted. Given that Plaintiff now has had four

opportunities to state a claim, the dismissal will be with prejudice and the Court will enter a Rule

58 judgment in favor of Defendants and against Plaintiff. The Court thanks Attorney Bradley

Smith for his exemplary service to the Court and the Trial Bar as recruited counsel for Plaintiff in

this case. Civil case terminated.

I. Background1

Plaintiff Moirsche Terrell Sibley brings this civil rights action under 42 U.S.C. § 1983,

alleging that Defendants violated his constitutional rights by subjecting him to unconstitutional

conditions of confinement and failing to provide medical care for his serious medical condition.

At all relevant times, Plaintiff has been in the custody of the Illinois Department of Corrections

(“IDOC”) and all Defendants (with the exception of Cook County and Sheriff Thomas J. Dart)

were correctional officers at the Cook County Department of Corrections, also known as the Cook

1 For purposes of the motion to dismiss, the Court accepts as true all of Plaintiffs’ well-pleaded factual

allegations and draws all reasonable inferences in Plaintiffs’ favor. Killingsworth v. HSBC Bank Nevada,

N.A., 507 F.3d 614, 618 (7th Cir. 2007).

County Jail. [48 at ¶¶ 5-27.] Although Plaintiff currently resides at the Stateville Correctional

Center [id., at 5], this lawsuit relates to an incident that occurred on February 26, 2017, while

Plaintiff was detained at the Cook County Jail pending trial. [Id. at ¶ 34.]

At approximately 11:20 p.m. on February 26, 2017, a fire in the vents of Division 10 of the

Cook County Jail created a thick chemical smelling smoke in Tier 2A (Plaintiff’s tier) and the

other tiers of Division 10. [Id. at ¶ 35.] There was no watchman present in tier 2A at the time

smoke first was observed, as Defendant Jonetta Jefferson had left her post. [Id. at ¶ 36.] Plaintiff

claims that Jefferson had knowledge of previous fires in Cook County Jail. [Id. at ¶ 37.] Plaintiff

and other detainees began screaming for help as Tier 2A filled with smoke. [Id. at ¶ 38.] Nobody

came for approximately 20 to 30 minutes. During that time, Plaintiff lost consciousness,

experienced severe chest pains, and had difficulty breathing. [Id.]

Jefferson returned to her post approximately 20 minutes after smoke was first observed in

Tier 2A. [Id. at ¶ 36.] After seeing smoke in the tier, Jefferson again left the tier to call her

supervisors. [Id. at ¶ 39.] Approximately 10 to 15 minutes later, officers began to evacuate

detainees from Tier 2A into the chapel area of the jail. [Id. at ¶ 40.] After being evacuated into

the chapel area, Plaintiff approached Defendant E. Velez to inform him that he has asthma and

needed to see a doctor or nurse due to smoke inhalation, which made Plaintiff light-headed and

dizzy. [Id. at ¶ 41.] Velez told Plaintiff that there was no medical staff available and walked away.

[Id.] Plaintiff waited in the chapel for two hours without receiving any medical attention. [Id. at

¶ 42.] Plaintiff alleges that he became lightheaded and dizzy during that time. [Id. at ¶ 43.] He

was vomiting, had chest pains, and even lost consciousness for a period of time. [Id.] Plaintiff

asserts that these symptoms “were within the vision of every Defendant Officer.” [Id.]

Plaintiff alleges that all Defendants forced Plaintiff and other detainees back to Tier 2A,

even though Plaintiff told Defendants that he did not want to return to the smoke-filled tier. [Id.

at ¶¶ 45, 47.] Defendant B. Judge even threatened to spray Plaintiff and the other detainees with

mace if they did not hurry onto the smoke-filled tier. [Id. at ¶ 49.] While the detainees were being

transferred back to Tier 2A, Plaintiff observed Defendant John Brown choking and gasping for

breath from the smoke and then vomiting into a toilet. [Id. at ¶ 45.] When detainees were forced

to return to Tier 2A, multiple Defendant officers refused to return to the tier because there still was

too much smoke. [Id. at ¶ 48.] The smoke (which had a chemical smell) remained in Tier 2A for

at least six hours after Plaintiff was forced to return. [Id. at ¶ 44.] Plaintiff continued to suffer

from “smoke inhalation” after returning to the tier, but he does not allege any long-term physical

injuries suffered because of this incident. [Id. at ¶ 51.]

II. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief

can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such

that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be

sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra

Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A

pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause

of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations

in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S.

at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all

of Plaintiff’s well-pleaded factual allegations and draws all reasonable inferences in Plaintiff’s

favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007).

III. Analysis

Plaintiff brings individual capacity claims against numerous Defendants for alleged

unconstitutional conditions of confinement and for deliberate indifference to Plaintiff’s serious

medical needs. Because Plaintiff had not yet been tried when he was detained at Cook County

Jail, his conditions of confinement claims arise under the Fourteenth Amendment and not the

Eighth Amendment’s Cruel and Unusual Punishment Clause, which applies only to prisoners who

have been convicted and sentenced. Lewis v. Downey, 581 F.3d 467, 474 (7th Cir. 2009) (holding

that the plaintiff’s Eighth Amendment rights “had not yet vested” because he had not been

sentenced). Although the Seventh Circuit had long assessed pretrial detainees’ due process rights

under Eighth Amendment standards, that changed after the Supreme Court’s decision in Kingsley

v. Hendrickson, 135 S. Ct. 2466 (2015), “which held the due process standard for excessive force

claims by pretrial detainees is less demanding than the Eighth Amendment standard for excessive

force claims by convicted inmates.” McWilliams v. Cook Cty., 2018 WL 3970145, at *5 (N.D. Ill.

Aug. 20, 2018) (summarizing Kingsley). Specifically, the Supreme Court held that the applicable

standard is objective reasonableness. Kingsley, 135 S. Ct. at 2473.

In Miranda v. Cty. of Lake, the Seventh Circuit extended Kingsley’s holding to medical-

care claims brought by pretrial detainees. 900 F.3d 335, 352 (7th Cir. 2018) (“We thus conclude

* * * that medical-care claims brought by pretrial detainees under the Fourteenth Amendment are

subject only to the objective unreasonableness inquiry identified in Kingsley.”). Since Miranda,

district courts have applied Kingsley’s holding to conditions of confinement claims brought under

the Fourteenth Amendment. See, e.g., McWilliams, 2018 WL 3970145, at *5. Thus, after

Kingsley, to state a valid claim that his constitutional rights were violated under the Fourteenth

Amendment, a plaintiff must show that: (1) the defendant “acted purposefully, knowingly, or

perhaps even recklessly;” and (2) the defendant’s conduct was objectively unreasonable. Miranda,

900 F.3d at 353-54. Whether the defendant’s conduct was objectively unreasonable “turns on the

facts and circumstances of each particular case.” Kingsley, 135 S. Ct. at 2473 (internal quotation

marks omitted). A pretrial detainee cannot prevail by showing that the defendant was merely

negligent. McCann, 909 F. 3d at 887.

The Supreme Court has also acknowledged the difficulty of managing a correctional

facility and directed courts to take that difficulty into account when assessing whether a

defendant’s actions were objectively reasonable:

“[r]unning a prison is an inordinately difficult undertaking,” and * * * “safety and

order at these institutions requires the expertise of correctional officials, who must

have substantial discretion to devise reasonable solutions to the problems they

face.” Officers facing disturbances “are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving.” For

these reasons, we have stressed that a court must judge the reasonableness of the

force used from the perspective and with the knowledge of the defendant officer.

We have also explained that a court must take account of the legitimate interests in

managing a jail, acknowledging as part of the objective reasonableness analysis that

deference to policies and practices needed to maintain order and institutional

security is appropriate.

Kingsley, 135 S. Ct. at 2474 (citations omitted).

A. Count I

Plaintiff brings an unconstitutional conditions of confinement claim (Count I) against

Defendant Jefferson for leaving her post unattended in the period preceding the fire. Plaintiff

alleges that Jefferson subjected Plaintiff to a smoke-filled tier by leaving her post unattended. [31,

at ¶ 54.] “In cases involving the conditions of confinement in a prison, two elements are required

to establish a violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment: first, an objective showing that the conditions are sufficiently serious—i.e., that they

deny the inmate the minimal civilized measure of life’s necessities creating an excessive risk to

the inmate’s health and safety—and second, a subjective showing of a defendant’s culpable state

of mind.” Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal citations and quotation marks

omitted). The culpable mental state required to state a claim under the Eighth Amendment is “one

of deliberate indifference to inmate health and safety.” Daugherty v. Page, 906 F.3d 606, 611 (7th

Cir. 2018) (quoting Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016)) (internal

quotation marks omitted). To state a conditions of confinement claim under the Fourteenth

Amendment, however, a plaintiff need only allege that “defendant’s conduct was objectively

unreasonable”—in addition to alleging that the conditions of confinement were sufficiently

serious. McWilliams, 2018 WL 3970145, at *5. “Reasonable safety” constitutes a minimal life

necessity protected by the Eighth and Fourteenth Amendments. DeShaney v. Winnebago Cty.

Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).

Defendants first argue that Count I should be dismissed because Plaintiff has not alleged a

sufficiently serious condition. In its previous order, the Court reviewed the second amended

complaint’s allegations regarding thick, chemical-smelling smoke and its effects on Plaintiff and

determined that Plaintiff had “alleged a sufficiently serious condition to warrant constitutional

scrutiny.” [47 at 7.] Defendants point out that the third amended complaint, unlike the previous

version, states that “[t]he start of Sibley’s suffering until his evacuation from the tier took a total

of 40-50 minutes.” [48 at ¶ 61.] Defendants argue that this more-specific allegation—45 minutes

of exposure, with no allegation of long-term effects—is not sufficient to state a claim that

Plaintiff’s exposure to smoke was a serious condition, citing Morissette v. DeTella, 1997 WL

619851, *1 (N.D. Ill. Sept. 29, 1997) (45 minutes of exposure to engine fumes which caused

plaintiff to become dizzy and vomit, and which led to long-term headaches and dizzy spells, were

not actionable because “brief and isolated exposure to engine exhaust does not violate the

Constitution”).

While Defendants have a point, Morissette is distinguishable and Plaintiff has adequately

pled a serious condition (though it is a close call). In Morissette, the plaintiff’s symptoms at the

time of exposure were dizziness and vomiting, and he later suffered headaches. Id. at *3. Here,

Plaintiff has alleged that he has asthma and, when smoke was first filling the tier, he experienced

severe chest pains, had difficulty breathing, and lost consciousness. [48 at ¶ 38-39.] While his

initial exposure to the smoke was about the same amount of time as the Morisette plaintiff’s

exposure to engine fumes, Plaintiff in this case has alleged symptoms that are more severe,

especially the loss of consciousness, see Orlowski v. Milwaukee Cty., 872 F.3d 417, 423 (7th Cir.

2017), and severe enough for the Court to conclude that he sufficiently alleged a serious medical

condition.

Still, in order to state a conditions of confinement claim against Defendant Jefferson,

Plaintiff also must allege that Jefferson’s “conduct was objectively unreasonable.” McWilliams,

2018 WL 3970145, at *5. The Court agrees that Plaintiff has not met that burden. Plaintiff alleges

that Jefferson was on duty late in the evening and returned to the tier approximately 20 to 30

minutes after smoke was observed. [48, at ¶ 36.] After seeing the smoke-filled tier, Jefferson left

to call her supervisors. [Id. at ¶ 39.] In the third amended complaint, Plaintiff added an allegation

that Jefferson had knowledge of previous fires in the jail. [Id. at ¶ 37.] Plaintiff also argues that

Jefferson violated jail policy by leaving her post without being relieved by a backup officer and

leaving a maximum-security tier unsupervised. [Id. at ¶ 55-56.]

First, alleged policy violations are not, ipso facto, civil rights violations. See Seventh

Circuit Pattern Jury Instruction 7.04; Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir.

2017) (explaining that § 1983 does not provide a remedy for violations of state statutes or

regulations) (citing Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). Second, Plaintiff’s

allegation about Jefferson’s previous knowledge of fires in the jail is not enough to show deliberate

indifference. The third amended complaint asserts that fires in the vents occur “in the winter

months” and that Jefferson had knowledge of previous fires. [48 at ¶ 67.] Plaintiff does not claim

that Jefferson was aware of the fire at issue in this case when she left her post, or was aware of any

particular risk of fire at that time or on that night. Nor does Plaintiff allege facts indicating that

Jefferson knew that her leaving the prisoners unattended for 20 to 30 minutes would create any

substantial risk of harm to Plaintiff or any other detainees. “Complaints that convey only a

generalized, vague, or stale concern about one’s safety typically will not support an inference that

a prison official had actual knowledge that the prisoner was in danger.” Gevas v. McLaughlin,

798 F.3d 475, 480–81 (7th Cir. 2015). Here, Plaintiff’s allegations about the danger of a fire and

Jefferson’s knowledge of that danger are both generalized and vague, and not enough to

demonstrate that leaving the tier for 20 to 30 minutes was objectively unreasonable.2

Furthermore, Plaintiff alleges that Defendant Jefferson returned to the tier 20 to 30 minutes

after smoke was observed. [48, at ¶ 36.] After seeing the smoke-filled tier, Jefferson immediately

2 Wilson v. Brown, 261 Fed.Appx. 442, 443 (3rd Cir. 2008), is helpful for comparison, though not binding

precedent. In Wilson, the Third Circuit affirmed summary judgment for prison officials and employees

when the plaintiff had “inhaled a lot of smoke” from a fire caused by an “accidental electrical malfunction.”

The Third Circuit reasoned that the plaintiff had not produced evidence that he was housed under conditions

subjecting him to an unreasonable risk of death or injury by fire, even though the unit he was in lacked

sprinklers and two correctional officers were asleep and unprepared to react to the fire when it began. Id.

left to call her supervisors. [Id. at ¶ 39.] Backup arrived 10 or 15 minutes after that, and Jefferson

and other officers began evacuating Tier 2A. [Id. at ¶ 40.] Plaintiff cites no authority, and the

Court is not aware of any, suggesting that a 20- to 30-minute response time to smoke in a

maximum-security tier of a jail was objectively unreasonable. Nor can the Court say that as a

matter of law, calling supervisors to alert them of smoke, or waiting for backup before releasing

and evacuating a tier full of maximum-security detainees, is objectively unreasonable.

Once prison officials know about a serious risk of harm, they are required only to take

reasonable measures to abate it, and “[o]f course, an official’s response may be reasonable even if

it fails to avert the harm.” Dale, 548 F.3d at 569, citing Borellow v. Allison, 446 F.3d 742, 747 (7th

Cir. 2006). According to the third amended complaint, Defendant Jefferson did take measures to

abate the risk of harm posed by smoke filling the tier. She alerted her supervisors, requested

backup, and, when it arrived, evacuated Tier 2A. In context of the “inordinately difficult” task of

running a jail, Kingsley 135 S. Ct. at 2474, and the emergency situation facing Defendant Jefferson,

her actions were not objectively unreasonable. Thus, the third amended complaint does not state

a claim for unconstitutional conditions of confinement against Defendant Jefferson, and Count I

is dismissed with prejudice.

B. Count II

Plaintiff brings an unconstitutional conditions of confinement claim (Count II) against

Defendants Jefferson, Judge, Velez, Willeda, Koedyker, Schous, Brown, Wells, Maddox, Ker,

Satduran, Belletierre, Thomas, Kos, Salerno, Brown, Benitez, Turner, Rodriguez, Schnolis, and

Cooper based on their conduct following the evacuation. Specifically, Plaintiff alleges that these

Defendants required Plaintiff “to return to the smoke-filled tier” in violation of his Fourteenth

The Third Circuit agreed with the district court that even this evidence did not support a conclusion that the

officers were deliberately indifferent to a substantial risk of harm to the inmates. Id.

Amendment rights.3 As discussed above, Plaintiff has alleged a sufficiently serious condition

warranting constitutional scrutiny.

Defendants argue, however, that Count II should be dismissed because Plaintiff fails to

plead that Defendants were objectively unreasonable in returning detainees to their cells. Plaintiff

must allege facts sufficient to establish that each Defendant “acted purposefully, knowingly, or

perhaps even recklessly” and that their “conduct was objectively unreasonable.” McCann v. Ogle

Cty., Illinois, 909 F.3d 881, 886 (7th Cir. 2018).

After being evacuated, Plaintiff and the other Tier 2A denizens spent two hours in the

Chapel before being transferred back to their cells. [48, at ¶ 42.] Plaintiff alleges generally that

Defendants “forced” Plaintiff and others back onto the smoke-filled tier or watched Plaintiff and

others be “forced” back onto the smoke-filled tier. [Id. at ¶¶ 44-45.] Plaintiff further alleges that

some Defendants refused to return to the tier because of the smoke. [Id. at ¶ 48.] Defendant Judge

even threatened to spray Plaintiff and other detainees with mace if they did not return to their cells.

[Id. at ¶ 49.] Plaintiff states that smoke lingered in the tier for an additional six hours. [Id. at ¶ 44.]

Plaintiff also alleges that Division 10, where his tier was located, houses maximum-

security detainees known for fights, stabbings, and obstructing locking mechanisms on their cell

doors. [48 at ¶ 55.] Tier 2A alone contained 48 inmates. [Id. at ¶ 66.] The fire created smoke not

just on Plaintiff’s tier, but on tiers throughout Division 10. [Id. at ¶ 35.] While the third amended

3 In his third amended complaint, Plaintiff briefly alleges that these Defendants delayed the evacuation of

the tier. [48, at ¶ 66.] Plaintiff also revised the allegation to a 30- to 40-minute delay (up from 10 minutes)

by including in that time Defendant Jefferson’s 20- to 30-minute absence from the tier. However, in his

response brief, Plaintiff does not base any of his arguments on the alleged delay. Even if Jefferson’s absence

should be included in any “delay” in evacuating the tier, Plaintiff has twice opted not to argue that theory

or respond to Defendants’ position on it—once in his response brief on the previous motion to dismiss [37]

and once in his response to the instant motion [52]. As such, any potential argument on those grounds is

forfeited. See Jones v. Connors, 2012 WL 4361500, at *7 (N.D. Ill. Sept. 20, 2012) (“A party’s failure to

respond to arguments the opposing party makes in a motion to dismiss operates as a waiver or forfeiture of

the claim and an abandonment of any argument against dismissing the claim.”) (collecting cases).

complaint does not allege how many inmates were housed on other tiers and exactly how many

tiers were affected by the smoke, it does paint a picture of a large number of inmates from a

dangerous population out of their cells in the wee hours of the morning.

The situation described in the third amended complaint is one of those “inordinately

difficult undertaking[s],” Kingsley 135 S. Ct. at 2474, that this Court must keep in mind while

assessing the reasonableness of Defendants’ actions in a prison setting. On one hand, the third

amended complaint alleges that Defendants forced Plaintiff into an environment that was, by

Defendants’ own admissions and actions, unpleasant and uncomfortable. Plaintiff also alleges that

all 21 Defendant Officers saw him suffering from smoke inhalation before they took him back to

Tier 2A.

On the other hand, Defendants were operating in an emergency situation, and “response to

emergency situations in a prison environment necessarily entails curtailment of rights and

privileges of the inmate population.” La Batt v. Twomey, 513 F.2d 641, 648 (7th Cir. 1975). When

emergencies or accidents cause even severe conditions for detainees, courts tend not to find

constitutional violations. See Wilson v. Seiter, 501 U.S. 294, 300 (1991) (“if a prison boiler

malfunctions accidentally during a cold winter, an inmate would have no basis for an Eighth

Amendment claim, even if he suffers objectively significant harm”); State of La. ex rel. Francis v.

Resweber, 329 U.S. 459, 464 (1947) (when first execution of inmate failed because of a mechanical

problem with the electric chair, scheduling a second execution was not cruel and unusual

punishment because inmate’s additional suffering was accidental, comparable to “a fire in the cell

block”); Del Raine v. Williford, 32 F.3d 1024, 1051 (7th Cir. 1994) (Manion, J., concurring)

(conditions of confinement claim regarding temperature of prison cell would be properly denied

at summary judgment if evidence showed that “an accidental mechanical problem caused the

cold”); Gloster v. Tanna, 2017 WL 6523155, at *2 (N.D. Ill. Feb. 21, 2017) (concluding that one

instance of food poisoning, not alleged to have been intentional, is insufficient to state conditions-

of-confinement claim) (citing Franklin v. True, 76 F.3d 381 (7th Cir. 1996) (unpublished

opinion)).4 According to the third amended complaint, at least 48 maximum-security detainees—

who were known for fighting, stabbing, and obstructing the locks on their cell doors—were out of

their cells, congregating in the same room in the middle of the night, and outnumbered the guards

by a margin of at least 2 to 1 (48 detainees and 21 guards). After two hours, the guards transferred

the detainees back to their tier, which still contained smoke. During the emergency requiring the

release and evacuation of at least one full tier, it is regrettable but not surprising that moving and

keeping control of detainees involved discomfort, or even temporary suffering. But both the

allegations in the third amended complaint and common sense establish that prison officials had a

legitimate interest in controlling a group of dangerous detainees, and in the emergency context of

responding to a fire and managing a prison population, Plaintiff cannot show that Defendants’

actions were objectively unreasonable. For these reasons, Count II is dismissed with prejudice.

4 See also Brazelton v. Holt, 462 F. App’x 143, 146 (3d Cir. 2012) (guard catching inmate’s hand in hinge

of closing cell door was “an accident compounded by negligence and carelessness” but not sufficient to

sustain an Eighth Amendment claim); Bacon v. Minner, 229 F. App’x 96, 99 (3d Cir. 2007) (affirming

dismissal and finding that allegations of reduction of recreation time and complete denial of recreation time

during emergency lockdowns did not state a claim for an Eighth Amendment violation); Grabowski v.

Jackson Cnty. Pub. Defenders Office, 47 F.3d 1386, 1395 n. 12 (5th Cir.1995) (“[A]n accident or

inadvertence or mere negligence does not [in itself] trigger the Eighth Amendment.”) (citing Estelle v.

Gamble, 429 U.S. 97, 105–06 (1976)); Matylinsky v. Angelone, 33 F.3d 59 (9th Cir. 1994) (failure of the

air conditioning in the disciplinary segregation unit did not constitute cruel and unusual punishment);

Cookish v. Comm’r, New Hampshire Dep’t of Corr., 980 F.2d 721 (1st Cir. 1992) (“prison officials may be

justified in subjecting prisoners to more rugged conditions of confinement during and after an emergency”);

George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (“a single incident of unintended food poisoning, whether

suffered by one or many prisoners at an institution, does not constitute a violation of the constitutional

rights of the affected prisoners”).

C. Count IV

Plaintiff brings a Fourteenth Amendment claim for deliberate indifference to a serious

medical condition (Count IV) against Defendants Judge, Velez, and Brown.5 The Supreme Court

has made clear that the Eighth Amendment prohibits the deliberate indifference to the serious

medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“[D]eliberate indifference

to a prisoner’s serious illness or injury states a cause of action under § 1983.”). To establish an

Eighth Amendment claim on that basis, Plaintiff must allege that (1) his condition was objectively

serious, and (2) Defendants “were deliberately indifferent to his health or safety.” Orlowski v.

Milwaukee Cty., 872 F.3d 417, 423 (7th Cir. 2017) (citing Pinkston v. Madry, 440 F.3d 879, 891

(7th Cir. 2006)). To state a Fourteenth Amendment medical-care claim, however, Plaintiff need

not allege that Defendants’ acted with deliberate indifference; rather, Plaintiff need only allege

that Defendants’ conduct “was objectively unreasonable.” Miranda, 900 F.3d at 351.

Plaintiff adequately alleges that his condition was objectively serious. “A serious medical

condition is one that ‘has been diagnosed by a physician * * * or one that is so obvious that even

a lay person would perceive the need for a doctor’s attention.’” Orlowski, 872 F.3d at 423 (quoting

Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)). “A medical condition need not be life-

threatening to be serious; rather, it could be a condition that would result in further significant

injury or unnecessary and wanton infliction of pain if not treated.” Gayton v. McCoy, 593 F.3d

610, 620 (7th Cir. 2010). Plaintiff alleges that he lost consciousness, experienced severe chest

pains, and had difficulty breathing while he waited approximately 30 to 45 minutes to be evacuated

to the chapel area. [48, at ¶ 38.] Plaintiff alleges that after he told Velez that he had asthma and

5 For the purposes of appeal only, the third amended complaint includes as defendants in this count

Jefferson, Willeda, Koedyker, Schous, Wells, Maddox, Ker, Satduran, Belletierre, Thomas, Kos, Salerno,

Brown, Benitez, Turner, Rodriguez, Schnolis, and Cooper.

needed medical attention, Velez said that no medical staff was available. [Id. at ¶ 41.] Plaintiff

waited in the chapel area for two hours without receiving any medical attention. [Id. at ¶ 42.]

Plaintiff became light-headed, dizzy, vomited for an extended period of time, had trouble

breathing, and lost consciousness. [Id. at ¶ 43.] Plaintiff assert that his symptoms “were within

the vision of every Defendant Officer.” [Id.] These allegations, taken together, are sufficient to

establish that Plaintiff had an objectively serious health condition. Orlowski v. Milwaukee Cty.,

872 F.3d 417, 423 (7th Cir. 2017) (“Failure to breathe and failure to regain consciousness are

undoubtedly life-threatening medical conditions that are obvious to a layperson.”).

With respect to Defendant Velez, Plaintiff alleges that he informed Velez that “he has

asthma and [that] he needed to see a doctor or nurse due to his inhalation of smoke for a long

period of time, which made [Plaintiff] light-headed and dizzy.” [48, at ¶ 41.] Plaintiff further

alleges that Velez told Plaintiff that no medical staff was available and walked away. [Id.]

However, Plaintiff does not allege that, at the time he sought medical treatment, Velez was aware

that Plaintiff had lost consciousness as a result of his exposure to smoke. Nor does Plaintiff allege

that Velez was aware that Plaintiff had difficulty breathing as a result of his asthma or of his

exposure to the smoke. Although Plaintiff informed Velez that he had asthma, he only indicated

that the asthma and exposure to smoke caused him to feel light-headed and dizzy. There is still no

indication that Velez knew or had reason to know about the seriousness of Plaintiff’s distress at

the time Plaintiff requested medical attention.

With respect to Defendant Judge, Plaintiff alleges that Judge threatened to spray him and

the other detainees with mace if they did not return to the smoke-filled tier. [48, at ¶ 49.] And

with respect to Defendant Brown, Plaintiff alleges that Brown himself experienced adverse

symptoms from the smoke, including choking, gasping for air, and vomiting. [Id. at ¶ 45.] Though

there are no specific allegations regarding Judge’s and Brown’s knowledge of Plaintiff’s

symptoms, Plaintiff does generally allege that, “within the vision of every Defendant Officer,” he

felt light-headed and dizzy, had chest pains, vomited, and lost consciousness during the two-hour

period that the detainees were in the chapel. [48, at ¶ 43.] Taken in the light most favorable to

Plaintiff, the third amended complaint alleges that all the guards saw him vomit and at least

temporarily lose consciousness while in the chapel,6 which is probably enough at this stage to

establish that Velez, Judge and Browne had knowledge of Plaintiff’s serious medical condition.

That does not, however, establish that Defendants’ conduct was actionable because the

third amended complaint does not allege “objectively unreasonable” conduct. Miranda, 900 F.3d

at 351. Plaintiff claims that Defendants ignored his requests for medical attention, [48, at ¶ 86(c)],

but he fails to allege that Defendants had any other course of action available. To begin, Plaintiff

does not allege that any medical staff actually were available or that any of the Defendant Officers

had any medical training sufficient to treat his condition or render any additional aid, or even that

they should have attempted to render aid. See King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.

2012) (police officers were not responsible for administering medical care to detainee). In fact,

Velez told Plaintiff that no medical staff were available [48, at ¶ 41], which is entirely plausible

for a maximum-security section of a prison at 2:00 a.m. in the middle of an ongoing emergency.

Plaintiff’s response brief suggests that the “Defendant Officers could have easily called medical

staff or EMTs,” [52 at 12] but that allegation appears nowhere in the third amended complaint.7

In short, the third amended complaint does not allege that Defendants could have provided medical

6 The third amended complaint does not explain how guards could have detected Plaintiff’s feelings or chest

pains, but loss of consciousness is the most serious of Plaintiff’s symptoms, so the Court is comfortable

setting Plaintiff’s lightheaded, dizzy, and feelings of pain to the side for this analysis.

7 Nor did Plaintiff include any such allegations in his three prior complaints [1, 20, 31].

care to Plaintiff at the time he requested it, so it fails to assert that Defendants “acted purposefully,

knowingly, or perhaps even recklessly” and that their “conduct was objectively unreasonable.”

Even if medical staff had been available, Defendants’ actions would not have been

considered objectively unreasonable. Plaintiff’s request to see a doctor or nurse would have

required medical staff to leave their stations and come to him, in the middle of at least 47 other

detainees, or would have required one of the officers overseeing those detainees to leave the chapel

and take Plaintiff to the medical personnel. The Court could not fault Defendants for choosing not

to pursue either course of action at that time, especially viewing the situation “from the perspective

and with the knowledge of” the Defendant Officers, as the Court must. Kingsley, 135 S. Ct. at

2474. With the guards outnumbered 2 to 1 by maximum-security detainees out of their cells and

congregating together in the middle of the night while a fire burns in a vent, it would not have been

objectively unreasonable to deny Plaintiff’s request for immediate medical attention.8 Count IV

is dismissed with prejudice.

D. Count III (Monell Claim)

In its prior order [47], the Court granted Defendants’ motion to dismiss Plaintiff’s Monell

claim (Count III). [47 at 14]. Plaintiff included Count III in the third amended complaint solely

for the purposes of appeal. Count III remains dismissed.

E. Qualified Immunity

Even if any or all of the foregoing analysis finding no liability on the merits were incorrect,

the Defendant Officers would be entitled to qualified immunity. “The qualified immunity defense

is designed to protect government agents ‘from liability for civil damages insofar as their conduct

8 Notably, the third amended complaint covers only a nine-hour period or so, and there is no allegation that

Plaintiff’s symptoms persisted beyond that time, that Plaintiff made later requests to see medical staff, or

that Plaintiff’s subsequent requests were denied.

does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). To determine the availability of qualified immunity in a

particular case, the Court engages in a two-step inquiry. “The initial, threshold question is whether

the facts, taken in the light most favorable to the plaintiff, show that the official’s conduct violated

a constitutional right.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If a constitutional

right is violated, then the Court “must determine if that right was clearly established at the time of

the alleged violation.” Id. (citing Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003)). This

inquiry is flexible, however, and the Court may decide that conduct did not violate a clearly

established constitutional right without deciding if a constitutional right was violated at all.

Pearson v. Callahan, 555 U.S. 223, 242 (2009). Furthermore, “the clearly established law must

be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Plaintiff does not cite, and the Court is not aware of, any authority establishing a pre-trial

detainee’s right to be from exposure to smoke from an accidental fire, or a pretrial detainee’s right

to immediate medical care for smoke inhalation in the middle of an ongoing emergency at the

prison. In fact, all of the most analogous cases (see pp. 11-12 & n.4, supra) find no liability, and

the Supreme Court’s analysis in Kingsley (which postdates most of those cases) points in the same

direction. Because Plaintiff has not shown that either such right was clearly established at the time

of the alleged violation, and Defendant Officers would be entitled to qualified immunity on Counts

I, II, and IV.

Even in normal circumstances, running a prison “is an inordinately difficult undertaking.”

Kingsley, 135 S. Ct. at 2474. Of course, the circumstances present here—a smoky blaze erupting

around midnight in the maximum security tier of a county jail—presented extraordinary challenges

as prison officials and inmates scrambled to maintain personal safety and order. Both the

underlying legal standards articulated in Kingsley and the doctrine of qualified immunity ensure

that officers on the front line in these trying circumstances are given wide latitude to do their best

in making the split-second decisions that they must to protect everyone present from all

conceivable harms. With the benefit of time to reflect in the clear light of day, perhaps one or

more Defendant might have managed to come more quickly or more effectively to Plaintiffs aid,

which might have alleviated the respiratory stress he (and at least one Defendant) were

experiencing. But the unfortunate unwillingness or inability of Defendants to render or locate

immediate medical care for Plaintiff in the chaos of the fire is not actionable under Section 1983.

IV. Conclusion

For the foregoing reasons, Defendants’ motion [51] is granted. Given that Plaintiff now

has had four opportunities to state a claim, the dismissal will be with prejudice and the Court will

enter a Rule 58 judgment in favor of Defendants and against Plaintiff. The Court thanks Attorney

Bradley Smith for his exemplary service to the Court and the Trial Bar for accepting appointment

as recruited counsel in this case. Civil case terminated.

Date: March 18, 2019

Robert M. Dow, Jr.

United States District Judge

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