Davis v. Gomez

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEON DAVIS,

Plaintiff,

Case No. 20-CV-4683

v.

Judge Mary M. Rowland

DAVIS GOMEZ, ET AL.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Deon Davis sues correctional officials at Stateville Correctional

Center, alleging that they subjected him to unconstitutional conditions of

confinement in 2018. Defendants Nicholas Lamb, Sherwin Miles, William Brown, and

Terrell Pork move now for summary judgment. [66]. For the reasons explained below,

this Court denies Defendants’ motion.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). A genuine dispute as to any material fact exists if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts

are material. Id. After a “properly supported motion for summary judgment is made,

the adverse party ‘must set forth specific facts showing that there is a genuine issue

for trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)).

The Court “consider[s] all of the evidence in the record in the light most

favorable to the non-moving party, and [ ] draw[s] all reasonable inferences from that

evidence in favor of the party opposing summary judgment.” Logan v. City of Chicago,

4 F.4th 529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from

making credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast

Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). In ruling

on summary judgment, the Court gives the non-moving party “the benefit of

reasonable inferences from the evidence, but not speculative inferences in [its] favor.”

White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted).

“The controlling question is whether a reasonable trier of fact could find in favor of

the non-moving party on the evidence submitted in support of and opposition to the

motion for summary judgment.” Id.

BACKGROUND

The Court takes the following background facts from Defendants’ statement of

facts (DSOF) [68], Plaintiff’s response to Defendant’s statement of facts (PRSOF) and

statement of additional facts (PSAF) [76], and Defendant’s response to Plaintiff’s

statement of additional facts (DRSAF) [83].

Plaintiff Deon Davis was incarcerated within the Illinois Department of

Corrections (IDOC) during the relevant time—September 13, 2018 to November 11,

2018. DSOF ¶ 1. During the relevant time, Defendants Nicholas Lamb and Sherwin

Miles served as assistant wardens at Stateville Correctional Center, Defendant

Terrell Pork served as a correctional sergeant in X-House at Stateville, and

Defendant William Brown served as a correctional lieutenant at Stateville. Id. ¶¶ 2–

6.

On September 13, 2018, Plaintiff was out on the X-house segregation yard. Id.

¶ 8. At approximately 11:30 a.m., Plaintiff asked an unidentified tower guard to

provide him an escort to the restroom. Id. ¶ 9. After the escort did not arrive for

Plaintiff, he defecated in the segregation yard. Id. ¶ 10. According to Plaintiff’s

declaration, he was placed in the segregation yard for a period of five continuous

hours and could not wait the several hours until the guards released him from the

yard. [76-1] ¶¶ 19–22. Plaintiff says he told Defendant Pork what had happened after

the five-hour recreation period ended. Id. ¶ 23. Plaintiff told Pork that he knew that

other Illinois prisons, like Menard Correctional Center, had toilets available on their

segregation yards and advised that Stateville needed one. Id. According to Plaintiff,

Pork told him that Stateville administration was working on installing a toilet in the

segregation yard and that Plaintiff could avoid the lack of toilet access by staying out

of segregation. Id. ¶ 24. Brown was present for the entire conversation. Id. ¶ 26.

Again, on October 14, 2018, Plaintiff was out on the X-house segregation yard.

DSOF ¶ 11. About an hour into his yard time, Plaintiff asked an unidentified guard

to provide an escort to the restroom. Id. ¶ 13. According to Plaintiff, the guard ignored

his request, so Plaintiff asked again fifteen to twenty minutes later. PRSOF ¶ 13. The

guard then informed Plaintiff that he informed the X-house segregation unit that

Plaintiff needed an escort to his cell. DSOF ¶ 13. Plaintiff could not wait and

defecated on himself in the segregation yard. Id. ¶ 14. Plaintiff remained in his

defecated clothing for another three hours. Id. ¶ 15. Plaintiff attests in his declaration

that he told Brown about this incident immediately upon being returned to his cell.

[76-1] ¶ 33. Brown told Plaintiff that members of Stateville administration were

working on installing a toilet in the segregation yard. Id. ¶ 34.

On November 11, 2018, Plaintiff was out on the X-house segregation yard.

DSOF ¶ 16. While there, Plaintiff requested an unidentified guard to provide him an

escort to the restroom. Id. ¶ 17. Plaintiff did not receive an escort but did not urinate

or defecate on himself or the yard on November 11. Id. ¶¶ 18–19. According to

Plaintiff, during this incident, he felt the urgent need to urinate, which was

exacerbated by his prescription use of hydrochlorothiazide, a diuretic that manages

his high blood pressure. [76-1] ¶ 37.

Plaintiff communicated with a prison counselor five times through mail or

grievances between September 13 and November 13, 2018. DSOF ¶ 21. He did not

mention having defecated on himself in X-house yard to his counselor prior to filing

his grievance on November 23, 2018. Id. ¶ 22. In that grievance, Plaintiff writes,

among other things, that on September 13 and October 14, he “had to defecate” but

that both times “no one came” so he “had to defecate on the yard.” [68-2] at 2. Plaintiff

did not name the tower guards or any of the named Defendants in this grievance.

DSOF ¶ 27; [68-2].

Stateville has a policy that tower officers must call someone to escort a person

in custody to use the bathroom during yard time. DSOF ¶ 28. During the relevant

time, Stateville did not have portable restrooms on the segregation yards. Id. ¶ 29.

Plaintiff asserts that, as a result of these incidents of being refused bathroom

access while out on the segregation yard, he has experienced stomach pain and

complications, including the inability to defecate normally. [76-1] ¶ 43. He also

continues to experience a burning sensation in his kidneys, for which he receives

medical treatment. Id.

In December 2018, Plaintiff saw Lamb accompany representatives of the John

Howard Association on a tour of X House. [76-1] ¶ 12. During that tour, Plaintiff

asked Lamb about the lack of toilets on the segregation yard, and Lamb responded

that the problem was out of his hands. Id.

Each Defendant maintains he has no recollection of any of the three occasions

that Plaintiff claims he was refused a bathroom escort. PSAF ¶ 7.

Plaintiff attests that he remains incarcerated at Stateville, where there is “still

no toilet available for prisoner use in the X-House segregation yard,” and toilet access

has not been otherwise improved nor made more accessible to inmates. [76-1] ¶ 46.

To show that this lack of bathroom access is a systemic problem, Plaintiff also submits

the declarations of other inmates. Stateville inmate Dimitrius Thomas avers that he

submitted a grievance in August 2018 explaining that, on August 5 of that year, he

was denied an escort to the bathroom while out on the segregation yard, and as a

result, defecated on himself. [76-3] ¶ 4. Another inmate, Maurice Brown, submitted

a declaration stating that he filed grievances in 2012, 2018, and 2019 complaining

about the lack of portable toilet in the segregation yard. [76-4] at 2. The May 2012

grievance Brown submitted complained that while he was on the segregation yard for

over five hours, he had to urinate, but his requests to be escorted to the bathroom

went unanswered. Id. at 3. Brown states that none of his grievances were answered.

Id. at 2.

Plaintiff brings his amended complaint under 42 U.S.C. § 1983 alleging that

his conditions of confinement constitute cruel and unusual punishment in

contravention of the Eighth Amendment. [22]. Defendants deny liability and move

for summary judgment. [66].

ANALYSIS

Defendants move for summary judgment, arguing that: (1) Plaintiff has not

raised a genuine issue of material fact on his Eighth Amendment claim; and (2) the

qualified immunity doctrine protects Defendants from liability. [67]; [82]. For the

reasons explained below, neither argument has merit.

I. Eighth Amendment Standard

The Eighth Amendment imposes liability on prison officials who act with

deliberate indifference to a substantial risk of serious harm to inmates. Eagan v.

Dempsey, 987 F.3d 667, 693 (7th Cir. 2021). The deliberate indifference standard

encompasses both objective and subjective elements, “each of which must be

satisfied.” Johnson v. Prentice, 29 F.4th 895, 904 (7th Cir. 2022) (quoting Quinn v.

Wexford Health Sources, Inc., 8 F.4th 557, 565 (7th Cir. 2021)). The objective element

requires Plaintiff to establish that he faced “sufficiently serious” conditions, meaning

that Defendants denied him “the minimal civilized measure of life’s necessities,

creating an excessive risk to the inmate’s health and safety.” Giles v. Godinez, 914

F.3d 1040, 1051 (7th Cir. 2019) (internal quotation marks and citation omitted). To

meet the subjective element, Plaintiff must demonstrate that Defendants exhibited

“more than mere or gross negligence, but less than purposeful infliction of

harm.” Quinn, 8 F.4th at 566 (quoting Lisle v. Welborn, 933 F.3d 705, 717 (7th Cir.

2019)).

II. Plaintiff Raises a Triable Issue on the Objective Element

Initially, the parties dispute whether Plaintiff’s lack of bathroom access is

objectively serious can rise to the level of an Eighth Amendment violation. Generally,

“[t]emporary lack of toilet access is not cruel and unusual punishment.” Harris v.

Jones, No. 20-1625, 2021 WL 4950248, at *2 (7th Cir. Oct. 25, 2021); see Thomas v.

McCoy, No. 17 C 6386, 2020 WL 247464, at *6 (N.D. Ill. Jan. 16, 2020) (“The court

acknowledges that the lack of access to toilet facilities for a short period of time may

not be sufficiently serious to state a claim of constitutional dimension, particularly if

access is denied due to valid penological concerns.”); accord Perry v. JPAY, Inc., No.

7:16-CV-00362, 2018 WL 1309743, at *8 (W.D. Va. Mar. 13, 2018) (“Temporary

restrictions on bathroom use, even ones lasting hours, do not constitute the wanton

infliction of pain or exhibit deliberate indifference to a prisoner’s health or safety.”)

(quoting Watson v. Graves, No. 1:15cv1214, 2017 WL 4533103, at *5 (E.D. Va. Oct. 6,

2017)).

Notwithstanding, “‘deprivation of use of a bathroom that creates a risk of

particular discomfort and humiliation’ may rise to the level of cruel and unusual

punishment.” Thomas v. McCoy, No. 17 C 6386, 2020 WL 247464, at *6 (N.D. Ill. Jan.

16, 2020) (quoting Fulford-El v. Wolfe, No. CIV WDQ-10-0151, 2010 WL 4721711, at

*3 (D. Md. Nov. 15, 2010)); see also Young v. Fischer, No. 20-CV-1084-BBC, 2021 WL

510730, at *2 (W.D. Wis. Feb. 11, 2021) (noting that “there may be some situations in

which denying an inmate access to a bathroom could be a constitutional violation,

such as denying bathroom access to an inmate who cannot control his bladder due to

disability, or where denying access to a bathroom could pose a risk of serious harm to

the inmate”) (internal citations omitted).

Here, Plaintiff claims that he experienced humiliation from having to defecate

on himself. He also avers that he has experienced lasting medical issues from those

incidents of having to hold his urine and feces; and that, since those incidents, he has

experienced stomach pain and complications, including the inability to defecate

normally. [76-1] ¶ 43. He also still seeks treatment for experiencing a burning

sensation in his kidneys after these incidents occurred. Id.

Plaintiff’s evidence that he experienced humiliation and lasting health issues

create a triable issue of fact on the objective element of his deliberate indifference

claim. Thomas, 2020 WL 247464, at *6. A reasonable jury could find that Plaintiff’s

conditions of confinement were objectively serious enough to constitute cruel and

unusual punishment under the Eighth Amendment.

III. Plaintiff Raises a Triable Issue on the Subjective Element

To create a genuine issue of material fact on the subjective element for a

deliberate indifference claim, Plaintiff must adduce evidence that Defendants were

“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.” Passmore v.

Josephson, 376 F. Supp. 3d 874, 883 (N.D. Ill. 2019) (quoting Gray v. Hardy, 826 F.3d

1000, 1008 (7th Cir. 2016)); see also Johnson, 29 F.4th at 904. This standard “requires

something approaching a total unconcern for the prisoner’s welfare in the face of

serious risks.” Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir.

2020).

The record shows that Plaintiff told Pork, Brown, and Lamb about the

incidents in the yard where he was forced to defecate on himself. Plaintiff also urged

those Defendants to look into installing a bathroom on the premises of the segregation

yard. As Defendants point out, there is no evidence that any of those Defendants

personally was responsible for not providing Plaintiff access to the bathroom when

he made those requests. See Gonzalez v. McHenry County, 40 F.4th 824, 827 (7th Cir.

2022) (noting that Section 1983 requires personal involvement in a constitutional

deprivation before liability attaches). Those failures fall on the unnamed tower

guards who are not named in this lawsuit.

Plaintiff does, however, point to evidence from which a reasonable juror could

find that Pork, Brown, and Lamb possessed a sufficiently culpable state of mind in

their responses to Plaintiff’s complaints about the lack of bathroom access in the

segregation yard. Plaintiff’s requests for bathroom access appears to have “fallen on

deaf ears” because there is no evidence that any of those Defendants did anything

once Plaintiff personally complained to them, such as inquiring about providing more

escorts for inmates to their cells for toilet use, or asking more senior administrators

if they could act more expediently in building a bathroom in the segregation yard.

Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997); see Perez v. Fenoglio, 792 F.3d

768, 782 (7th Cir. 2015) (noting that “prisoner requests for relief that fall on deaf ears

may evidence deliberate indifference”) (quotation omitted).

Rather, after Plaintiff complained directly to them that he had been forced to

defecate on himself and remain in his soiled clothes in the segregation yard, Pork and

Brown told Plaintiff that Stateville was working on installing a bathroom in the

segregation yard, and Lamb told Plaintiff that the problem was “out of his hands.”

Pork and Brown submit no evidence corroborating their representation to Plaintiff

that Stateville was actually working on installing a bathroom. In fact, Plaintiff states

in his declaration that there is still no bathroom in the X-house segregation yard. [76-

1] ¶ 46. Viewing the record in Plaintiff’s favor, a reasonable jury could find that Pork

and Brown ignored or misled Plaintiff in their responses to his complaints.

And in Lamb’s case, although he told Plaintiff the matter was “out of his

hands,” like the other Defendants, he submits no evidence that establishes that he,

in fact, was powerless to improve the conditions. See Dixon v. Godinez, 114 F.3d 640,

645 (7th Cir. 1997) (“Because the record as developed does not demonstrate that

defendants were powerless to correct the conditions that Dixon alleged to exist, there

are triable issues concerning both defendants’ actual knowledge of the conditions, and

their ability to correct them.”) (internal citations omitted); Boclair v. Godinez, No. 13

C 08630, 2017 WL 1427069, at *8 (N.D. Ill. Apr. 21, 2017) (“Boclair’s allegation that

Nushardt said he ‘ha[d] no choice’ when he placed him back in the cell is also not an

admission that Nushardt was in fact powerless to alleviate the issue, only that

Nushardt said he was.”). A jury could reasonably find Lamb’s non-actions indicative

of a sufficiently culpable state of mind. Giles, 914 F.3d at 1049.

The record also precludes summary judgment to Defendant Miles. There is no

evidence that Plaintiff ever complained to Miles, nor that Miles knew that Plaintiff

had experienced harm from the three incidents in the yard. Yet as Plaintiff argues,

Miles was an assistant warden of operations, and thus a jury could find that he must

have known about the conditions in the segregation yard. Knowledge of unsanitary

“systemic conditions” that “exist throughout Stateville” “can be fairly imputed to

high-level Stateville officers.” Smith v. Godinez, No. 14 C 6744, 2023 WL 358792, at

*10 (N.D. Ill. Jan. 23, 2023); see Gray v. Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016)

(“Evidence that the warden ‘must have known’ about the risk of physical or

psychological harm resulting from the unsanitary conditions is sufficient for a jury to

find deliberate indifference.”) (quoting Sanville v. McCaughtry, 266 F.3d 724, 737 (7th

Cir. 2001)). Plaintiff presents sufficient evidence—including through the declarations

of other inmates who have complained about lack of bathroom facilities since 2012—

that the problem has been so systemic that Miles must have known about the serious

risk to inmates. In contrast, Miles puts forth no evidence that he has attempted to

ameliorate the lack of access to bathroom facilities in the segregation yard. Rather,

as discussed, it appears that a usable bathroom remains lacking in the segregation

yard. This Court therefore denies summary judgment to Miles.

IV. Qualified Immunity is Unavailable to Defendants

Defendants argue that the doctrine of qualified immunity entitles them to

judgment. [67] at 10–11. This argument fares no better. The Court declines to find

Defendants protected by qualified immunity at this stage.

Rooted in the idea of fair notice, McGee v. Parsano, 55 F.4th 563, 570 (7th Cir.

2022), the doctrine of qualified immunity “balances dueling interests—allowing

officials to perform their duties reasonably without fear of liability on the one hand

and ‘affording members of the public the ability to vindicate constitutional violations

by government officials who abuse their offices’ on the other,” Lopez v. Sheriff of Cook

Cty., 993 F.3d 981, 987 (7th Cir. 2021) (quoting Weinmann v. McClone, 787 F.3d 444,

447–48 (7th Cir. 2015)). Qualified immunity attaches unless: (1) a government official

violated a federal statutory or constitutional right; and (2) the unlawfulness of this

conduct “was clearly established at the time.” McGee, 55 F.4th at 570 (quoting District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)).

Focusing on the second step of the qualified immunity inquiry, the law was

clearly established during the relevant time that officials act with deliberate

indifference when they react with a lack of concern to an inmate’s complaints about

his complete lack of basic life necessities, including adequate sanitation. See Budd v.

Motley, 711 F.3d 840, 842 (7th Cir. 2013) (“Jail officials violate the Eighth

Amendment if they are deliberately indifferent to adverse conditions that deny the

minimal civilized measure of life’s necessities, including adequate sanitation and

personal hygiene items”) (quotation omitted); Gill v. Litscher, 468 F.3d 488, 495 (7th

Cir. 2006) (denying qualified immunity to prison officials because they “cannot show

that in 2002, when these events occurred, it was not well-established that denial of

shelter, heat, and hygiene items implicated an inmate’s constitutional rights”). And

while Defendants attempt to distinguish cases cited by Plaintiff as more extreme than

the conditions of which Plaintiff complains, see [82] at 4–5, “a case need not be directly

on point for a right to be clearly established,” Steele v. Knight, No.

113CV00982JMSDKL, 2016 WL 7117155, at *11 (S.D. Ind. Dec. 7, 2016) (citing

Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012)). This Court therefore

denies summary judgment on qualified immunity grounds.

CONCLUSION

For the reasons explained above, this Court denies Defendants’ motion for

summary judgment [66]. This Court sets a telephonic status hearing for April 11,

20238, at 9:30 AM. Parties should call 866-434-5269; access code is 3751971. The parties

are directed to meet and confer in advance of the status hearing and should be

prepared to inform this Court whether they believe a settlement conference would be

productive.

ENTER:

/]

Dated: March 20, 2023 Mug Vf bt L/

MARY M. ROWLAND

United States District Judge

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