Brown v. Watson

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CORTEZ BROWN,

Plaintiff,

v. Case No. 21-cv-138-JPG

RICHARD WATSON, TRINITY SERVICE

GROUP, and DR. DAVID MARCOWITZ,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on three motions for summary judgment, one filed by

each of the three defendants, Trinity Service Group (Doc. 133), David Marcowitz (Doc. 136),

and Richard Watson (Doc. 141). Plaintiff Cortez Brown has responded to the motions (Doc.

149), and Dr. Marcowitz has replied to that response (Doc. 150). The Court will grant all three

motions for summary judgment because Brown has pointed to no evidence from which a

reasonable jury could find the defendants violated Brown’s constitution rights because of his

conditions of confinement. Additionally, Watson is entitled to qualified immunity for his

response to the unprecedented COVID-19 pandemic in a correctional facility.

I. Background

Brown filed this civil rights action pro se pursuant to 42 U.S.C. § 1983 for constitutional

deprivations that he claims occurred during his detention at the St. Clair County Jail (“Jail”). He

alleges that defendants St. Clair County Sheriff Richard Watson and Trinity Service Group were

responsible for unhealthy and unsafe conditions of confinement due to the use of e-cigarettes,

overcrowding, insects, and mold in the Jail during the COVID-19 pandemic (Counts 1 and 2).

He alleges that Dr. Marcowitz, the medical director of the Jail, behaved unreasonably

and/or with deliberate indifference to Brown’s health needs because he did not take sufficient

steps to prevent, diagnose, and contain the COVID-19 coronavirus (Count 3) and because he

failed to provide Brown with adequate medical care when he contracted the disease (Count 4).

He specifically alleges that Dr. Marcowitz refused to test him for COVID-19 on a number of

occasions, to provide personal protective equipment (“PPE”) for Jail inmates, and to test and

separate actually or potentially infected inmates from others. He asserts that these failures

resulted in an outbreak of 300 COVID-positive inmates and 3 inmate deaths by January 2021.

He asserts that in so acting, all the defendants violated either his Fourteenth Amendment

due process rights or his Eighth Amendment right to be free from cruel and unusual punishment,

depending on whether he was a convicted inmate or a pretrial detainee at the time.

II. Standards for Summary Judgment

Summary judgment is appropriate only if the moving party can show “there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material

fact exists when “the evidence is such that a reasonable [factfinder] could [find] for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving

party has the burden of establishing that no material facts are genuinely disputed. Lawrence v.

Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). Any doubt about the existence of a genuine

issue must be resolved in favor of the nonmoving party. Id.

When presented with a motion for summary judgment, the Court does not decide the

truth of the matters presented, and it cannot “choose between competing inferences or balance

the relative weight of conflicting evidence.” McCottrell v. White, 933 F.3d 651, 657 (7th Cir.

2019) (internal quotations omitted); accord Hansen v. Fincantieri Marine Grp., 763 F.3d 832,

836 (7th Cir. 2014).

Once a properly supported motion for summary judgment is filed, the adverse party

“must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S.

at 250 (internal quotations omitted). The Court must then “view all the evidence in the record in

the light most favorable to the non-moving party and resolve all factual disputes in favor of the

non-moving party.” Hansen, 763 F.3d at 836 (internal quotations omitted). If the “evidence is

such that a reasonable jury could return a verdict for the nonmoving party[,]” then a genuine

dispute of material fact exists. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (internal

quotations omitted).

III. Facts

Viewed in Brown’s favor, the relevant evidence establishes the following facts.

A. Brown’s Detention

Brown was detained in the Jail from March 28, 2020, to May 17, 2021. He was first

detained for violation of his terms of supervised release in Case No. 00-cr-30033-NJR, then as of

June 25, 2020, also on pretrial detention in Case No. 20-cr-30064-NJR. Brown was sentenced

on the new charges and the supervised release violation on April 8, 2021, and in May 2021, he

was transferred to a federal correctional facility.

During Brown’s time at the Jail, inmates could buy e-cigarettes from the Jail commissary.

The Jail used Trinity’s banking software to process and track commissary orders, but the Jail

maintained control over what items were offered and sold at the commissary. When a detainee

wanted to purchase e-cigarettes from the Jail’s commissary, he would submit a paper form to a

Jail officer, who would then manually enter the order into Trinity’s banking software to charge

the detainee for the purchase. Jail personnel then distributed the e-cigarettes to the inmates who

had purchased them.

Detainees could seek medical care by submitting a sick call request to a nurse, who

reviewed the request to determine if the detainee needed to see a doctor.

B. COVID-19 Pandemic

Brown’s detention at the Jail in March 2020 coincided with the COVID-19 pandemic.

Because of the pandemic, the Jail provided its staff with masks, but not detainees. Brown was

screened for COVID-19 as part of his Jail intake screening and was then sent to H Block, the part

of the Jail where federal detainees were held. Brown was particularly bothered by detainees’ use

of e-cigarettes because he believed the vapor they emitted could transmit the COVID-19 virus

and because he believed COVID-19 was transmitted through saliva when detainees shared e-

cigarettes.

At some point, a federal detainee in H Block was exposed to a federal court security

officer with COVID-19. As a consequence, Jail medical staff monitored all H Block detainees

by taking their temperatures twice daily for two weeks. On July 2, 2020, Brown was tested for

COVID-19, and the test was negative. He did not contract COVID-19 while housed in H Block.

In August 2020, after getting into an altercation in H Block, Brown was moved to AA

Block, another part of the Jail where detainees charged with state crimes were housed. AA

Block consisted of a large central area—the dayroom—surrounded numerous two-man cells. All

of the cells in AA Block were occupied, and often a third person was placed in the cell or in the

dayroom to sleep on the floor. Unlike in H Block, in AA Block, detainees were brought in from

the street and out quite frequently, so the risk of exposure to COVID-19 was higher than it was

in H Block. Brown characterized it as a “rotating door.”

C. Brown’s COVID-19

Brown remained COVID-19-free until January 2021, when his cellmate tested positive.

After testing positive, Jail officers returned the cellmate to the cell he shared with Brown rather

than isolating him elsewhere. A Jail sergeant gave Brown the option of remaining in the cell

with the infected detainee or moving out and sleeping on the floor elsewhere. Brown refused

because he thought his infected cellmate should be the one forced to move instead of him, and

Brown did not want to sleep on the floor. An hour later, the officer returned and told Brown he

no longer had the option of moving out since he had been exposed to his infected cellmate. They

were locked down in the cell together for fourteen days. The day after being locked down with

his infected cellmate, Brown asked to be tested for COVID-19, although he was experiencing no

symptoms. The test was negative. A few days later Brown was tested again, and this time the

test was positive. At that point, Brown had lost his sense of taste and smell and was nauseous.

Upon learning that Brown had tested positive for COVID-19, Dr. Marcowitz prescribed

Tylenol (for aches and fever) and Guaifenesin (for congestion) for fourteen days. Dr.

Marcowitz’s medication prescription was consistent with guidelines of the Centers for Disease

Control and Prevention (“CDC”) at that time to treat symptoms because there was no cure.

Brown started receiving medication about a week after he tested positive. Although his medical

records show he received it twice a day for fourteen days, he actually only received it for three or

four days, and it did not make him feel any better. He was unable to eat for ten days and lost

twenty pounds. His symptoms subsided over the next few weeks, and on February 11, 2021, he

tested negative for the virus.

D. Post-COVID-19

Brown was given another COVID-19 test, which was negative, right before being

vaccinated against the coronavirus on March 16, 2021. He was also given a mask to wear. The

following day, he had an annual physical in which his chest x-ray was normal. On May 17,

2021, he was moved from the Jail to federal custody. In an examination at a federal facility in

mid-August 2021, he showed no symptoms of COVID-19.

Before he reached the Jail, Brown had preexisting sinus trouble and high blood pressure.

Since having COVID-19, Brown suffers shortness of breath and fatigue when doing strenuous

activities, and has thyroid problems, all of which he attributes to his bout with COVID-19.

E. Other Conditions of Confinement

Also during Brown’s stay at the Jail, AA Block had gnats and bugs everywhere, and there

was mold in the showers. The Jail was treated twice a month for insects and other pests. Ample

cleaning supplies were distributed daily to inmates to clean the showers.

IV. Discussion

A. Legal Standards

To show that conditions of confinement violated the constitution, a plaintiff must prove

two things. First, the conditions of confinement must be objectively serious enough to pose a

substantial risk of serious harm; they must result in the denial of “‘the minimal civilized measure

of life’s necessities.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)); see Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015).

Second, the official must have a sufficiently culpable state of mind. Farmer, 511 U.S. at 834.

For pretrial detainees, the sufficiently culpable state of mind has changed in the past

decade. Historically, the Court applied to convicted prisoners and pretrial detainees the same

Eighth Amendment standard of deliberate indifference to the needs of prisoners. See Miranda v.

County of Lake, 900 F.3d 335, 350-51 (7th Cir. 2018); Burton v. Downey, 805 F.3d 776, 784 (7th

Cir. 2015). A defendant is deliberately indifferent if he “knows of and disregards an excessive

risk to inmate health or safety.” Farmer, 511 U.S. at 837.

However, the Court of Appeals for the Seventh Circuit, relying on the Supreme Court’s

decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), has since held that the objective

reasonableness standard, not the deliberate indifference standard, applies to all conditions-of-

confinement claims brought by pretrial detainees. Hardeman v. Curran, 933 F.3d 816, 823 (7th

Cir. 2019). Miranda held that the controlling inquiry consists of two steps. The first step

focuses on the intentionality of the defendant’s conduct and asks “whether the . . . defendant[]

acted purposefully, knowingly, or perhaps even recklessly when [he] considered the

consequences of [his] handling of [plaintiff’s] case.” See Miranda, 900 F.3d at 353. The second

step asks whether the challenged conduct was objectively reasonable based on the totality of the

circumstance faced by the defendant. Id. at 354. This last inquiry is made without regard for the

defendant’s subjective state of mind. See McGee v. Parsano, 55 F.4th 563, 569 (7th Cir. 2022).

Brown was a pretrial detainee during the most relevant times, including when he was

exposed to and contracted COVID, so the applicable legal standard for his conditions of

confinement claim is the Fourteenth Amendment’s objective reasonableness standard. See

Miranda, 900 at 352.1 The Court now turns to each defendant’s motion to determine if they

were objectively unreasonable in response to conditions of confinement posing objectively

serious harm to Brown.

1 Brown might be considered a convicted criminal because he was also being held for a violation

of his supervised release. And after he was sentenced in federal court on April 8, 2021, he was,

indeed, a convicted prisoner. However, for the purposes of the defendants’ summary judgment

motions. the Court applies the objective reasonableness standard presented by the Fourteenth

Amendment rather than the deliberate indifference standard of the Eighth Amendment.

B. Trinity’s Motion for Summary Judgment (Doc. 133)

Trinity is a non-governmental organization that processed and tracked detainees’ e-

cigarette purchases from the Jail. The Jail sold the e-cigarettes through its commissary to

detainees and used Trinity’s software to process the payments. Trinity asks for summary

judgment on the grounds that it was not involved in deciding what commissary items were

allowed in the Jail; it merely processed and tracked detainees’ purchase requests. Further, it

argues that selling e-cigarettes in the Jail is not unconstitutional and that Brown cannot show he

suffered any harm from that practice. It seeks summary judgment on Count 1, Brown’s

Fourteenth Amendment claim for a policy, custom, or practice of allowing e-cigarettes at the

Jail.

To determine whether a private corporation like Trinity can be liable under § 1983, the

Court applies municipal liability standards. Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 378-79

(7th Cir. 2017). A municipality may only be liable for its own actions as a municipality. Monell

v. Dep’t of Social Servs., 436 U.S. 658, 690-92 (1978). Municipal action occurs where (1) the

municipality had an express policy calling for a constitutional violation, (2) the municipality had

a widespread practice of constitutional violations that was so permanent and well settled as to

constitute a custom or usage with the force of law, or (3) if a person with final policymaking

authority for the municipality caused the constitutional violation. Id. at 694. And the policy,

custom, or decision must be the moving force behind the constitutional violation. Id.

Essentially, Brown targets Trinity’s policy of processing and tracking e-cigarette orders for the

Jail.

As discussed in the previous section, to show that a constitutional violation occurred

based on a condition of confinement, a plaintiff must prove that the conditions of confinement

were objectively serious enough to pose a substantial risk of serious harm, Farmer v. Brennan,

511 U.S. 825, 834 (1994), and that the defendant was objectively unreasonable in his conduct,

Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019).

Brown stumbles on the first step. There is no evidence that the use of e-cigarettes in the

Jail posed a substantial risk of serious harm to Brown or effectively denied him the civilized

measure of life’s necessities. This is true even when COVID-19 was prevalent. Brown

speculates that the transmission of the COVID-19 virus was greater and more dangerous in the

vapor emitted from e-cigarettes that it was without the e-cigarette vapor. There is no evidentiary

support for such speculation. While the vapor may have been more visible than ordinary breath,

there is no scientific evidence on file to shows e-cigarettes increased the risk of COVID-19

beyond the risk posed by simply breathing.

Additionally, there is no evidence to support the notion that Brown contracted COVID-19

from e-cigarette vapor or sharing an e-cigarette with another inmate, or even that second-hand e-

cigarette vapor caused or exacerbated any of Brown’s other ailments.

Furthermore, even if e-cigarettes in the Jail created an unconstitutional condition, the

Jail’s decision to allow detainees to purchase e-cigarettes would be the moving force behind

such a constitutional violation. The Jail, not Trinity, controlled what came into the Jail, and

Trinity cannot be liable for that decision.

There is simply no basis for holding Trinity liable under § 1983 merely because it

processed and tracked e-cigarette sales for the Jail.

C. Watson’s Motion for Summary Judgment (Doc. 141)

In Sheriff Watson’s motion for summary judgment, he argues with respect to Count 1, the

count also against Trinity, that Brown cannot show that the sale of e-cigarettes in the Jail was

unconstitutional without scientific evidence that e-cigarette vapor posed a serious risk of harm at

the concentrations found in the Jail. With respect to Count 2, Watson argues that Brown cannot

show that the other conditions of confinement he cites posed a serious risk to Brown’s health.

With respect to all counts, Watson argues that Brown cannot show that the Jail responded

improperly to the risks posed by those conditions. He also asserts qualified immunity.

1. Count 1

Watson is entitled to summary judgment on Count 1 for some of the same reasons Trinity

is. Watson, as the Sheriff in charge of and the policymaker for the Jail, is responsible for the

Jail’s policy of allowing e-cigarettes in the Jail. However, as noted earlier, no evidence suggests

e-cigarette vapor increased the risk of COVID-19 to inmates or that the concentration of second-

hand e-cigarette vapor in the Jail increased the risk of other health problems. In the absence of

any evidence of an increased risk of harm from e-cigarettes, Brown cannot show that Watson’s

decision to allow them in the Jail was objectively unreasonable.

2. Count 2

With respect to Count 2, Brown’s claim about e-cigarette vapor, overcrowding, insects,

and mold, Watson argues that Brown cannot show these conditions, either individually or in

combination, were objectively serious enough or lengthy enough to rise to the level of a

constitutional violation.

As noted above, pretrial detainees are entitled to “the minimal civilized measure of life’s

necessities,” including such things as “reasonably adequate ventilation, sanitation, bedding,

hygienic materials, and utilities.” Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019)

(internal citations and quotations omitted); Smith v. Dart, 803 F.3d 304, 310 (7th Cir. 2015)

(food, clothing, shelter, and medical care). The objective reasonableness of a plaintiff's

conditions of confinement depends on the duration and severity of his exposure to the conditions.

See Hardeman, 933 F.3d at 824. Only after finding objectively serious conditions does the

Court even consider the reasonableness of a defendant’s conduct.

No reasonable jury could find based on the existing evidence that the conditions Brown

faced were objectively serious in that they denied him “the minimal civilized measure of life’s

necessities” or exposed him to conditions “posing a substantial risk of serious harm.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994). The Court considers the conditions individually and in

combination, taking account of their severity and duration.

As a result of Jail overcrowding and the need for isolating inmates sick with or exposed

to COVID-19, there were not enough beds for all the detainees. At least in AA Block, this meant

that some detainees were forced to sleep on the floor either in the dayroom or as the third inmate

in a two-man cell. Brown does not point to any other consequence of alleged overcrowding in

the Jail that might be deemed intolerable in human society. See Rhodes v. Chapman, 452 U.S.

337, 348 (1981). It is true that sleeping on the floor would not have been pleasant. It posed

inherent problems such as discomfort, proximity to insects and substances spilled on the floor,

and being stepped on by others. However, sleeping on the floor was not so bad and so long as to

deprive a detainee of one of life’s necessities. Offering it as an option to remaining in a cell with

a COVID-positive detainee was not offering an unconstitutional choice. And in fact, Brown

never slept on the floor because he refused to comply with the Jail’s decision about how to

isolate Brown’s cellmate.

Brown also complains about unsanitary conditions such as insects and mold in the

showers. The mere presence of insects and mold is not, by itself, evidence of unconstitutional

conditions. No evidence suggests that the level if insect infestation approaches the outrageously

excessive levels found to be objectively serious in other cases. See Antonelli v. Sheahan, 81 F.3d

1422, 1431 (7th Cir. 1996) (“cockroaches that were ‘everywhere,’ ‘crawling on his body’ (along

with mice) and ‘constantly awaken[ing]’ him, and ‘causing the environment to be unsanitary”

and caused significant harm; the jail sprayed for pests only twice in sixteen months); White v.

Monohan, 326 F. App’x 385, 388 (7th Cir. 2009) (over five years, “‘bugs, roaches, spiders,

wasps, [and] bees’ had bitten and stung him so often as to leave multiple scars, wounds, and

sores, causing him internal injuries”). The evidence shows that the Jail was exterminated twice a

month, although it was not 100% effective. Nevertheless, the evidence does not reveal the kind

of intolerable situation that a jury could find an objectively serious condition.

As for mold, it can pose a serious health risk. See, generally, Nat’l Ctr. for Enviro. Hlth.,

Basic facts about mold and dampness (Nov. 14, 2022), available at https://www.cdc.gov/

mold/faqs.htm (visited Mar. 15, 2024). But Brown alleges mold was only in the showers, which

were cleaned daily—or at least adequate cleaning supplies were provided daily to inmates to

clean the shower. Brown’s speculation that his limited exposure to mold caused his health

problems is unsupported by the evidence. No reasonable jury could find that Brown’s exposure

to mold in the showers amounted to an objectively serious condition, especially where there is no

evidence that it caused any illness.

Even in combination, the e-cigarette use, the lack of bed space for every detainee, the

insects, and the mold in the shower do not come close to suggesting the environment was

intolerable in human society. In the context of detention facilities where dozens of people live in

confined quarters, society does not demand pristine living conditions. And when special

circumstances like the COVID-19 pandemic wreak havoc on a jail’s normal operations, the Jail

must be given certain leeway in accommodating detainees’ and staff’s health and safety. The

measures Watson implemented for the Jail were within the bounds of reasonableness, and no

jury could find otherwise.

3. Count 3

In Count 3, Brown claims that Watson unconstitutionally exposed him to the COVID-19

virus and inmates infected with it, failed to provide him with protective gear such as masks, and

failed to adequately test for the virus. Watson argues that his response to the dangers of the

COVID-19 pandemic were appropriate, even if they did not perfectly track the guidelines of the

CDC or prevent all cases of COVID-19.

When determining whether a reasonable jury could find Watson’s response to the

COVID-19 pandemic was objectively unreasonable, the Court looks to the totality of the

circumstances rather than to individual countermeasures or the lack of them. See Mays v. Dart,

974 F.3d 810, 819-20 (7th Cir. 2020). The Court must also respect correctional administrators’

superior expertise in matters involving internal order and discipline as well as institutional

security. Id. at 820 (citing Bell v. Wolfish, 441 U.S. 520, 547 (1979)). Only when correctional

administrators have an exaggerated response to institutional management challenges should a

court not defer to their judgment. Id. at 820 (citing Bell, 441 U.S. at 548).

The evidence shows that Jail staff were issued masks but inmates were not. It also shows

the Jail took measures to monitor for COVID-19 and prevent its spread. For example, when a

detainee in H Block was exposed on a trip to court, the jail tested inmates in the same cell block

and monitored their temperature twice daily. Where there was more traffic in and out of the AA

Block, the Jail attempted to isolate ill inmates. In fact, it unsuccessfully attempted to remove

Brown from his cell when his cellmate tested positive, but Brown refused to go because he

thought the cellmate should have been removed instead. The two were then locked down to

prevent the infection of others in the AA Block. And the Jail tested Brown for COVID-19 each

time he requested.

While these prevention measures were not perfect, no reasonable jury could find them

unreasonable in light of the unique circumstances presented by the COVID-19 pandemic in a

correctional setting. The masks provided to staff helped reduce the risks that any virus staff

brought in from the outside would be spread to detainees. The monitoring in H Block after a

potential exposure showed that the Jail was making efforts to detect the virus to prevent

transmission when there was reason to think an infection may exist. And the efforts to separate

Brown from his infected cellmate were reasonable even though Brown might have preferred

some other means of separation. Separating infected or exposed inmates from uninfected

inmates in a correctional setting in a pandemic is a monumental task, and no reasonable jury

could find the Jail’s way of trying to accomplish this task was unreasonable, even if it was not

100% effective in preventing infections.

It is true that other means of preventing transmission were not used, like giving inmates

masks. However, the Court defers to Jail administrators on the advisability of giving inmates a

means of concealing their identity or contraband behind a mask, especially when the

administrators were using the other prevention strategies discussed above. That those strategies

did not perfectly match CDC recommendations for non-correctional settings does not mean they

were objectively unreasonable in the circumstances the Jail faced. In sum, considering the

totality of the circumstances and in light of the broad discretion Jail administrators should be

given to address the pandemic, no reasonable jury could find Watson’s decisions for the Jail

objectively unreasonable.

4. Qualified Immunity

Notwithstanding the foregoing findings, Watson claims he is entitled to qualified

immunity for his decisions in managing the Jail while Brown was housed there.

Qualified immunity is an affirmative defense that shields government officials from

liability for civil damages where their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable officer would have known. Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); Pearson v. Callahan, 555 U.S. 223, 231 (2009); Denius v. Dunlap, 209

F.3d 944, 950 (7th Cir. 2000). The qualified immunity test has two prongs: (1) whether the

official violated a constitutional right, and (2) whether the right at issue was clearly established at

the time of the alleged misconduct. District of Columbia v. Wesby, 583 U.S. 48, 62-63 (2018);

Pearson, 555 U.S. at 232; Wilson v. Layne, 526 U.S. 603, 609 (1999). The Supreme Court

encourages, but does not require, examining the second prong before diving into the merits of the

plaintiff’s claim where it is not necessary. Wesby, 583 U.S. at 62 n.7 (quoting Camreta v.

Greene, 563 U.S. 692, 707 (2011)); accord McGee, 55 F.4th at 572.

Under the second prong, the law at the time of the conduct “must have placed the

constitutionality of the officer’s conduct beyond debate” such that “every reasonable official

would understand that what he is doing is unlawful.” Wesby, 583 U.S. at 63 (internal quotations

omitted). It must have been “settled law,” that is, it must have been “dictated by controlling

authority or a robust consensus of cases of persuasive authority.” Id. at 63 (internal quotations

omitted). Generally, this requires a high degree of specificity in the precedent so that every

reasonable officer would have been alerted to the law in the particular circumstances. Id. And it

is incumbent on the plaintiff to show the clear establishment of the law in the particular

circumstances. Denius, 209 F.3d at 950.

With respect to Count 3, it should come as no surprise that there is little, if any, caselaw

regarding how a modern jail must respond to a pandemic on the scale of the COVID-19 event. It

was unprecedented and, for much of the time Brown was in the Jail, misunderstood. At the

outset, there was conflicting authority regarding the manner of transmission and the advisability

of using a mask. COVID-19 tests were not plentiful at that time, and vaccines had not even been

invented. Administrators of jails and other correctional facilities were faced with new and

unprecedented challenges every day without the benefit of judicial precedents to guide them.

Indeed, Brown has not pointed to any clearly established law regarding how the Jail should have

responded to the challenges of the COVID-19 pandemic. For this reason, the Court finds

Watson is entitled to qualified immunity on Count 3.

With respect to Counts 1 and 2, Brown has failed to point to a specific case analogous to

his situation that clearly established Watson’s decisions regarding Jail policy—allowing e-

cigarettes to be sold to detainees, dealing with overcrowding, and responding to insect infestation

and mold—were unconstitutional. Therefore, Watson is entitled to qualified immunity on

Counts 1 and 2 as well.

For all of the foregoing reasons, the Court will grant Watson’s motion for summary

judgment.

C. Dr. Marcowitz’s Motion for Summary Judgment (Doc. 136)

In his motion for summary judgment, Dr. Marcowitz argues with respect to Count 3, the

allegations that he took insufficient countermeasures to prevent the spread of COVID-19, that he

was not involved in implementing the Jail’s countermeasures. Alternatively, he argues that he

reasonably responded to the risks by monitoring and testing inmates’ COVID-19 status, even if

the response was not perfectly in line with the CDC’s regulations. He notes that Brown was

tested for COVID-19 each time he requested to be tested—and more—and that after a positive

test, Dr. Marcowitz prescribed Tylenol and Guaifenesin for Brown’s symptoms.

1. Count 3

In Count 3, Brown claims that Dr. Marcowitz was responsible for unconstitutionally

exposing him to the COVID-19 virus and inmates infected with it, failing to provide him with

protective gear such as masks, and failing to adequately test him for the virus. These are the

same claims Brown levied against Watson. Dr. Marcowitz notes that he had no control over cell

assignments for the purposes of quarantining detainees. He further denies that was involved in

or responsible for implementing COVID-19 preventative measures such as PPE, sanitation,

social distancing, or quarantining. Alternatively, he argues that his monitoring and testing of

inmates for COVID-19 was a reasonable response to the risk, and that Brown cannot show those

measures conflicted with CDC recommendations. He notes that Brown was tested for COVID-

19 each time he asked to be tested, and there is no medical evidence his later health problems

were caused by COVID-19.

As noted above, the state of mind requirement for Fourteenth Amendment due process

claims for conditions of confinement calls for a two-part inquiry. First, the question is “whether

the medical defendant[] acted purposefully, knowingly, or perhaps even recklessly when [he]

considered the consequences of [his] handling of [plaintiff’s] case.” See Miranda v. County of

Lake, 900 F.3d 335, 353 (7th Cir. 2018). Second, the question is whether the challenged conduct

was objectively reasonable based on the totality of the circumstance faced by the defendant. Id.

at 354. This last inquiry is made without regard for the defendant’s subjective state of mind. See

McGee v. Parsano, 55 F.4th 563, 569 (7th Cir. 2022).

Dr. Marcowitz first challenges Brown’s ability to show he was personally involved in

decisions regarding quarantine and isolation, giving masks or other PPE to detainees, or directing

a plan of COVID-19 testing that actually resulted in Brown’s exposure to the virus.

“[I]ndividual liability under § 1983 . . . requires personal involvement in the alleged

constitutional deprivation. The plaintiff must demonstrate a causal connection between (1) the

sued officials and (2) the alleged misconduct.” Colbert v. City of Chi., 851 F.3d 649, 657 (7th

Cir. 2017) (internal quotations and citations omitted).

There is no evidence in the record that Dr. Marcowitz had any control over, or even input

on, Jail administration decisions such as moving or housing detainees—including implementing

or enforcing social distancing, quarantine, or isolation. Nor is there evidence he was involved in

deciding whether or how to distribute PPE and sanitizers, deciding how often to sanitize areas

inside the Jail, or implementing any overall program of testing detainees.

Brown claims that Dr. Marcowitz must have had some input into the Jail’s COVID-19

prevention measures because the health services department at the Jail works directly with Jail

administrators and because Dr. Marcowitz has an ethical responsibility to address COVID-19

measures with Jail administrators. This is pure speculation. The evidence shows that Dr.

Marcowitz’s authority was limited to direct patient care—i.e., reviewing detainees’ medical

records and examining and treating individual detainees. He bore no responsibility for other

COVID-19 countermeasures involving social distancing/quarantine, PPE, or systematic testing.

Even more relevant, no reasonable jury could find Dr. Marcowitz played any role in the decision

to house Brown with his ill cellmate after Brown refused another housing assignment. Fitting

this into the objective reasonableness framework, there is no evidence that Dr. Marcowitz “acted

purposefully, knowingly, or perhaps even recklessly” with respect to decisions about inmate

movement, PPE, or systematic testing of detainees; he simply did not make or contribute to those

decisions.

Administering COVID-19 tests to individual detainees is a different story. COVID-19

testing is a medical task, and even if Dr. Marcowitz did not perform a test himself, the evidence

shows he had the authority to order them and reviewed the tests that were performed. To the

extent that the decision whether to test a specific inmate fell upon Dr. Marcowitz, a reasonable

jury could find he acted purposefully, knowingly, or recklessly in making a decision to test or not

test a particular detainee. Thus, he could satisfy the first part of the objective unreasonableness

test.

However, Brown cannot show Dr. Marcowitz’s decisions about testing him for COVID-

19 were unreasonable given the totality of the circumstances. Brown was first tested and his

temperature was regularly monitored in H Block to detect whether anyone in that unit had

contracted COVID-19 from exposure in a court proceeding. That was a reasonable response to

the threat, and none of the inmates involved tested positive.

At his request, after being locked down with his ill cellmate, Brown was tested on

January 13, 2021, and was negative. Shortly thereafter, when Brown began experiencing

symptoms, Dr. Marcowitz ordered another test that came back positive.2 Brown also tested

negative before he received the vaccine two months later. No evidence suggests testing on these

occasions was improper, too infrequent, or objectively unreasonable. Furthermore, no

reasonable jury could find additional testing of Brown or his cellmate (or indeed, of anyone else)

would have had any impact on Brown’s contracting COVID-19. Dr. Marcowitz’s conduct, if

any, in testing was not objectively unreasonable considering the totality of the circumstances,

and no evidence suggests his testing decisions caused Brown any harm.

2 Dr. Marcowitz’s response to that positive test is at issue in Count 4.

2. Count 4

In Count 4, Brown complains that Dr. Marcowitz’s response when he tested positive for

COVID-19 in January 2021 was unconstitutional. Dr. Marcowitz maintains that his response in

prescribing Tylenol for fever and aches and Guaifenesin for congestion was reasonable and in

conformity with CDC recommendations at the time to treat symptoms with over-the-counter

medication. No other COVID-19-specific treatment existed at that time. This medical care

claim is governed by the objective reasonableness test discussed earlier in this order. James v.

Hale, 959 F.3d 307, 318 (7th Cir. 2020); see Miranda v. County of Lake, 900 F.3d 335, 352 (7th

Cir. 2018).

It is clear that Dr. Marcowitz’s treatment of Brown with over-the-counter medications

was a purposeful act. However, it was also an objectively reasonable response to Brown’s

condition and in line with CDC recommendations at the time. A jury would be hard-pressed to

say that following CDC recommendations during the pandemic was objectively unreasonable.

Brown has not specified what else he believes Dr. Marcowitz should have done to treat his

COVID-19. And he recovered in a few weeks. The Court need not dive into whether COVID-

19 caused Brown other long-term problems—even scientists are currently debating the

question—because it is enough to say that Dr. Marcowitz’s response at the time was objectively

reasonable when viewed in the totality of the circumstances. No reasonable jury could find

otherwise.

V. Conclusion

For the foregoing reasons, the Court:

• GRANTS Trinity Service Group’s motion for summary judgment (Doc. 133);

• GRANTS Dr. David Marcowitz’s motion for summary judgment (Doc. 136);

• GRANTS Richard Watson’s motion for summary judgment (Doc. 141);

• DISMISSES all remaining claims in this case with prejudice; and

• DIRECTS the Clerk of Court to enter judgment accordingly.

SO ORDERED.

DATED: April 4, 2024

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE