The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHON MESKAUSKAS, )
#R-44760 )
Plaintiff, )
vs. Case No. 18-cv-1446-DWD
JEANETTE COWAN, et al.
Defendants.
MEMORANDUM AND ORDER
DUGAN, District Judge:
Plaintiff Jonathon Meskauskas, an inmate of the Illinois Department of Corrections
(“IDOC”) currently incarcerated at Pontiac Correctional Center, commenced this action
by filing a Complaint pursuant to 42 U.S.C. § 1983 for the deprivation of his constitutional
rights that occurred while at Menard Correctional Center (“Menard”). (Doc. 1). This
matter is before the Court on a Motion for Summary Judgment filed by the Defendants,
(Doc. 90). For the reasons set forth below, the Motion is GRANTED in part.
Background
Following a review of the Complaint pursuant to 28 U.S.C. § 1915A and
substitution of named individuals for Doe defendants, Plaintiff proceeded on the
following claims:
Count 1: Defendants Cowan, Gardiner, Hutchinson, Knauer, and Baldwin
failed to protect Plaintiff from a substantial risk of serious harm by
denying him protective custody, in violation of the Eighth
Amendment;
Count 2: Defendants Allen, Baker, Bramlet, Campbell, Gardiner, Hood, Lee,
Lindsey, Murphy, Mathis, Roland, Sternberg, Smith, Welborn,
Wehrenberg and Willis, failed to intervene to protect Plaintiff when
he was attacked by Latin Folks gang members on February 28, 2017,
in violation of the Eighth Amendment;
Count 3: Defendants Dudzinski and Brumleve were deliberately indifferent
to Plaintiff’s conditions of confinement from approximately
February 28, 2017 through March 6, 2017; and
Count 4: Defendant Brumleve was deliberately indifferent to Plaintiff’s
serious medical condition from approximately March 1, 2017
through March 18, 2017, in violation of the Eighth Amendment.
(Docs. 6, 37). Defendants have moved for summary judgment on all claims (Doc. 90) and
Plaintiff filed his opposition (Doc. 103).
Material Facts
Plaintiff was housed in Menard between November 18, 2016 and November 2017.
(Deposition of Plaintiff, Doc. 91-1 at 2). Prior to his time in IDOC custody, Plaintiff had
been a member of the Ambrose Street Gang, a security threat group (“STG”) affiliated
with the Latin Folks STG. (Id., p. 8). Upon entering IDOC, Plaintiff attempted to go “off
count”—essentially withdrawing his gang affiliation. (Id.).
On November 20, 2016, Plaintiff submitted a request for Protective Custody (“PC”)
status. (Request Form, Doc. 91-3, p. 1). In it, Plaintiff stated that the Latin Folks have a
policy that “no off count members are allowed in General Population in Menard” which
is “enforced with violence[,]”and that if he remained in General Population he can be
“assaulted by any on count Latin Folks at any time.” (Id.). He was placed in temporary
PC for eight days while his request was investigated. (Id.).
During the investigation of his request, Plaintiff was interviewed separately by
Defendant Cowan (a counselor) and Defendant Gardiner, a member of the “Intelligence
Unit.” Plaintiff testified that he told both Cowan and Gardiner about the Latin Folks’
policy, and that Gardiner evidenced prior knowledge of such a policy. (Doc. 91-1, pp. 7-
9). He also testified that he told Gardiner about specific conversations with on-count
Latin Folks member reminding him of his obligation to remove himself from General
Population. (Id., p. 7).
On November 29, 2016, Plaintiff’s request for PC was denied by an unknown
official signing on behalf of Defendant Warden Hutchinson. (Doc. 91-3, p. 1, Doc. 98).
Defendant Hutchinson never reviewed the request. (Doc. 98).
Plaintiff grieved the denial on December 1, 2016. (Doc. 91-3, p. 1). A hearing was
held before the Administrative Review Board (“ARB”) on February 23, 2017. (Id., p. 5).
He reiterated his concerns regarding his status as off-count, that the Latin Folks would
assault him in General Population, and his conversations with two on-count members
regarding the Latin Folks’ policy. (Id., Doc. 91-1, pp. 9-10). Defendant Knauer was the
only member of the ARB present and recommended denying the request. (Id.). An
unknown IDOC official then signed on behalf of IDOC Director John Baldwin concurring
with the recommendation. (Doc. 91-3, p. 5). Baldwin never reviewed the PC request. As
a result, Plaintiff was placed back in General Population on February 28, 2017.
The same day Plaintiff was placed in General Population, Plaintiff was threatened
in the prison yard by another Latin Folks-affiliated inmate known as “C Man,” who told
Plaintiff that he would have Plaintiff stabbed unless Plaintiff went back to PC. (Doc. 91-
1, p. 12). On the orders of another inmate, Plaintiff testified that he shouted at the guard
in a tower (Defendant Willis) that they had threatened to stab him, that he feared for his
life and needed to get off the yard. (Id., p. 13). Defendant Willis states that although he
had the tower window open, Plaintiff did not try to speak to him. (Affidavit of James
Willis, Doc. 91-7 at 2-3). It is undisputed that Willis did not take any steps to remove
Plaintiff from the yard.
Plaintiff stood by the tower for the remainder of the yard period, but was assaulted
by a Latin Folks-affiliated inmate as they were walking toward the yard gate. (Doc. 91-
1, p. 14). According to a witness inmate, an unidentified officer closed the gate when the
fight broke out, and the assault lasted between 90 seconds and two minutes. (Affidavit
of Allen Bloomingburg, Doc. 103-1). Bramlet identified himself as the officer who closed
the gate in order to contain the incident. (Affidavit of Brad Bramlet, Doc. 91-5). Bramlet
and Willis shouted multiple orders to stop and get on the ground, with Bramlet calling
an emergency code over the radio. (Docs. 91-7, 91-8). The inmate witness states that the
gate officer (apparently Bramlet) did not issue any orders. (Doc. 103-1). No warning shot
or chemical irritant spray was used to break up the assault. After the incident, Defendant
Allen ordered Plaintiff and the assailant to present themselves to be handcuffed. (Doc.
91-1, pp. 15-16). Plaintiff was then taken to the Health Care Unit (“HCU”). (Id., pp. 17-
18). He was examined by healthcare staff and given pain medication, after which
photographs were taken by an IA officer of his head injuries. (Id.) After exiting the
HCU, Plaintiff was taken to the North 2 gallery shower area, where Gardiner interviewed
him. (Id., p. 17). He was then placed in segregation in North 2 by Defendant Dudzinski.
(Id, p. 19). Plaintiff asked him for soap, toilet paper and a bedroll, which he refused to
provide. (Id.). Plaintiff then asked Defendant Brumleve for soap and toilet paper on
several occasions, which he also refused to provide. (Id.). It is unclear from his deposition
how long Plaintiff went without each item, though in his Amended Complaint he states
he received toilet paper and bedroll on March 5, 2017 and soap (through a commissary
order) the following day. (Doc. 37, p. 26). Plaintiff was released from segregation on
March 14, 2017. (Doc. 91-2).
Plaintiff also testified that he spoke with Brumleve on several occasions beginning
March 1, 2017 regarding severe hip and back pain and asking for medical attention. (Doc.
91-1, p. 21). Brumleve refused. (Id.). Brumleve testified via affidavit that he does not
recall Plaintiff at all, and does not recall him asking for medical treatment. (Doc. 91-11).
Plaintiff was eventually seen in the HCU on March 18, 2017, whereupon they began
giving him different medications to try to address the pain. (Doc. 91-1, p. 24).
Discussion
Summary judgment is proper only if the moving party can demonstrate that there
is no genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The moving party is entitled to summary judgment where the
non-moving party “has failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. When
deciding a summary judgment motion, the Court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted).
However, if the evidence is merely colorable, or is not sufficiently probative, summary
judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). A
genuine issue of material fact remains “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248.
Count 1
An Eighth Amendment claim for failure to protect requires a plaintiff to
demonstrate that he faced a substantial risk of serious harm, and that the defendants
knew of and disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994);
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). However, a generalized risk of violence
is not enough, for prisons are inherently dangerous places. Brown v. Budz, 398 F.3d 904,
909, 913 (7th Cir. 2005). Rather, there must be a tangible threat to his safety or well-being.
Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir. 2008). Such a threat must reflect that he
is subject to a substantial risk of future harm. Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir.
2001); Henderson v. Sheahan, 196 F.3d 839, 846–847 (7th Cir. 1999). A substantial risk of
serious harm is one in which the risk is “so great” that it is “almost certain to materialize
if nothing is done.” Brown, 398 F.3d at 911. There is no question that the threat of physical
violence “clearly constitutes serious harm.” Id. at 910
Defendants’ first challenge is that Plaintiff’s statements to them on the subjective
prong, alleging that Plaintiff’s statements to Cowan, Gardiner and in his PC application
materials were insufficient to put them on notice of a sufficiently specific risk of future
harm. Based on the evidence presented, this argument fails. “[I]t does not matter
whether the risk comes from a single source or multiple sources, any more than it matters
whether a prisoner faces an excessive risk of attack for reasons personal to him or because
all prisoners in his situation face such a risk.” Sinn v. Lemmon, 911 F.3d 412, 421 (7th Cir.
2018). Plaintiff told Cowan and Gardiner that all prisoners in his situation (off-count
Latin Folks affiliates in General Population) were subject to assault on that basis, and that
the policy had been specifically reiterated to him by at least one on-count affiliate. This
was then repeated in the PC application materials and before Knauer at the ARB hearing.
A reasonable jury could find on this evidence that Cowan, Gardiner and Knauer had the
requisite knowledge to satisfy the subjective prong of deliberate indifference.
Further, Defendants’ contention that Baldwin and Hutchinson cannot be liable
because they never reviewed Plaintiff’s PC requests holds no water. They are correct that
to recover damages under Section 1983, a plaintiff must establish that a defendant was
personally responsible for the deprivation of a constitutional right, and that there is no
respondeat superior or vicarious liability for a constitutional violation. Gentry v. Duckworth,
65 F.3d 555, 561 (7th Cir. 1995); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
However, this does not insulate supervisory employees entirely. A supervisor may be
liable if they “know about the conduct and facilitate it, approve it, condone it, or turn a
blind eye for fear of what they might see. They must in other words act either knowingly
or with deliberate, reckless indifference.” Backes v. Vill. of Peoria Heights, Ill., 662 F.3d 866,
870 (7th Cir. 2011). The Illinois Administrative Code provisions dealing with applications
for placement in PC put responsibility for making final determinations personally on the
Chief Administrative Officer of the facility, and final determination of any related
grievance on the IDOC Director. 20 IL Admin Code § 501.320(c) and (d). Unlike other
provisions of that regulation, no other individual may routinely perform these duties—
only in periods of that individual’s “temporary absence or in an emergency.” 20 IL
Admin Code § 501.305(b). The record is unclear whether the fact that both mandated
reviewers delegated their responsibility for review to an unidentified designee signing in
his place is an amazing coincidence or evidence of “turning a blind eye” to protective
custody requests that by their very nature implicate inmate safety. Without additional
evidence, there remains a genuine issue of material fact on this aspect of the case.
Accordingly, summary judgment is denied as to Count 1.
Count 2
A failure to intervene claim is essentially the same as a failure to protect claim,
translated from a threat to an active situation. The mere fact that correctional officers are
present during a violent altercation between inmates and do not immediately throw
themselves into the fray does not alone satisfy the standard for deliberate indifference.
See Guzman v. Sheahan, 495 F.3d 852, 858 (7th Cir.2007); Shields v. Dart, 664 F.3d 178, 181
(7th Cir. 2011).
As an initial matter, Plaintiff offers no argument as to why Defendants Baker,
Campbell, Hood, Lee, Lindsey, Murphy, Mathis, Roland, Sternberg, Smith, Welborn, and
Wehrenberg are not entitled to summary judgment. The Court therefore considers the
matter conceded.
Summary judgment is also appropriate in favor of Allen and Bramlet. Plaintiff has
produced no evidence that Allen was present when the fight broke out or had a
reasonable opportunity to intervene to stop the assault. As for Bramlet, even viewing the
evidence in the light most favorable to Plaintiff and crediting the inmate witness
testimony that he did not shout any orders to stop, his actions do not amount to deliberate
indifference. In Guzman v. Sheahan, 495 F.3d 852, 858 (7th Cir. 2007), the Seventh Circuit
found that even if a corrections officer witnessing an assault only made the emergency
call for backup and then left her post for upward of three minutes, it did not amount to
deliberate indifference as a matter of law. The Court can find no basis to distinguish
Bramlet’s conduct in this case from the corrections officer in Guzman. As such, summary
judgment will be granted in Allen and Bramlet’s favor as well.
Defendant Willis is not entitled to summary judgment. Willis states that Plaintiff
did not try to speak with him prior to the incident about the danger he felt. Plaintiff states
that he shouted up at Willis in the tower, telling him that someone had threatened to stab
him and he needed to get off the yard. This is a genuine issue of material fact. Summary
judgment is denied as to Willis.
Count 3
An Eighth Amendment conditions of confinement claim requires a plaintiff to
show that the conditions deny the inmate “the minimal civilized measure of life’s
necessities,” creating an excessive risk to the inmate’s health or safety, and that the
defendant acted with deliberate indifference to a substantial risk of serious harm to the
inmate from those conditions. Farmer v. Brennan, 511 U.S. 825, 834 and 842 (1994). These
“necessities” include adequate sanitation and access to necessary personal hygiene items.
Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013). A combination of unsanitary conditions
or deprivations which individually may not amount to a constitutional issue may suffice
when viewed in the totality of circumstances. Id.
Here, Dudzinski and Brumleve argue that the alleged deprivations (six days
without toilet paper and bedroll and seven without soap) are inadequate as a matter of
law to satisfy the standard. Although the period in question was relatively short, the
combination of lack of toilet paper and lack of soap poses a troubling situation in
segregation, where prisoners are also generally required to eat in their cells.
Additionally, there is a question of fact regarding Plaintiff’s abrasions from the assault
and whether they posed a risk of infection in such an environment. As such, summary
judgment is denied on Count 3.
Count 4
In order to prevail on an Eighth Amendment claim for deliberate indifference to a
medical condition, a plaintiff must show (1) that his condition was objectively,
sufficiently serious and (2) that the prison officials acted with a sufficiently culpable state
of mind. Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). A serious medical need is one
that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention.
Foulker v. Outagamie County, 394 F.3d 510, 512 (7th Cir. 2005).
Untreated severe pain alone may qualify as a serious medical condition. Cooper v.
Casey, 97 F.3d 914, 917 (7th Cir. 1996). “Pain is a ‘uniquely subjective experience,’ and it
is not appropriate to conclude at summary judgment that nontrivial pain alleged by an
inmate is not deserving of treatment.” Diaz v. Godinez, 693 F. App'x 440, 443–44 (7th Cir.
2017) (quoting Cooper, 97 F.3d at 917). Although there is some discrepancy between
Plaintiff’s testimony and the HCU records as to whether he complained of back pain
between March and August 2017, this is an issue of credibility that cannot be resolved on
summary judgment.
Further, the subjective prong of deliberate indifference presents a question for the
jury. Plaintiff testified that he told Brumleve that he needed medical assistance because
of excruciating pain. Brumleve’s affidavit states that he does not remember Plaintiff or
having any interactions with him. Whether Plaintiff made these statements and whether
they were sufficient to alert Brumleve to the issue are still in contention. As such,
summary judgment is denied on Count 4.
Qualified Immunity
Defendants’ assertion of qualified immunity on the remaining claims is denied.
Officers are entitled to qualified immunity under Section 1983 unless (1) they violated a
federal statutory or constitutional right, and (2) the unlawfulness of their conduct was
“clearly established at the time.” Reichle v. Howards, 566 U.S. 658, 664 (2012). “Clearly
established” means that, at the time of the officer's conduct, the law was “sufficiently
clear that every reasonable official would understand that what he is doing” is unlawful.
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotations omitted).
Each of the constitutional rights at issue here was clearly established at the time in
question, as discussed above. Moreover, Plaintiff’s allegations on the surviving claims
are sufficient (if adequately proven) to establish violations of those constitutional rights.
As such, qualified immunity is inapplicable here.
Conclusion and Disposition
For the reasons stated above, the Court GRANTS in part and DENIES in part
Defendants’ Motion for Summary Judgment (Doc. 90). Count 2 is DISMISSED as to
Defendants Allen, Baker, Bramlet, Campbell, Hood, Lee, Lindsey, Murphy, Mathis,
Roland, Sternberg, Smith, Welborn, and Wehrenberg. The Clerk of Court is DIRECTED
to terminate them as parties in the CM/ECF system, and to enter judgment in their favor
at the conclusion of the case.
The Court wishes to remind the Plaintiff that litigation is often viewed a series of
hurdles that the Plaintiff must clear to get to another hurdle. Summary Judgment is such
a hurdle, but it is a very low one for the Plaintiff to clear. Clearing the Summary Judgment
hurdle does not mean that the Plaintiff has won his case nor does it mean that he is
entitled to damages or other relief. As noted above, clearing the summary judgment
hurdle only requires the existence of a disputed fact material to the Plaintiff's claim. At
trial, he will need to prove that the disputed fact did, in fact, occur as the Plaintiff says it
occurred. Trial is the highest and most difficult of hurdles for any Plaintiff to clear.
IT IS SO ORDERED.
DATED: May 24, 2021 U J
DAVIDW.DUGAN
United States District Judge
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