JOHNSON v. COFFEE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MICHAEL JERMAINE JOHNSON, )

)

Plaintiff, )

)

v. ) No. 1:19-cv-03313-SEB-TAB

)

COFFEE, et al. )

)

Defendants. )

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Plaintiff Michael Johnson, an inmate at Pendleton Correctional Facility, brings this lawsuit

alleging defendants Captain Coffee and Lieutenant Girdler were deliberately indifferent to the

conditions of his confinement while he was at Plainfield Correctional Facility in violation of the

Eighth Amendment. Specifically, he alleges that the defendants knew he was in a small, poorly

ventilated cell infested with black mold for several months and did not make reasonable efforts to

abate the substantial risk to his health. As a result, he was injured.

The defendants have moved for summary judgment and dismissal of the action. The

plaintiff failed to file a response in opposition, but the evidence in the record reflects summary

judgment is not appropriate in this case. The record reflects that Mr. Johnson was exposed to black

mold for several months, that the defendants knew about this exposure, and that the defendants

failed to take reasonable steps within their discretion to remove the black mold from his cell.

Construing the evidence in the light most favorable to Mr. Johnson, the Court concludes that a

reasonable jury could find that the defendants were deliberately indifferent to the conditions of

Mr. Johnson's confinement, that this deliberate indifference caused Mr. Johnson to suffer an

objectively serious harm, and that the defendants are not entitled to qualified immunity.

Accordingly, the motion for summary judgment is DENIED.

I.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment asks the Court to find that the movant is entitled to

judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed.

R. Civ. P. 56(a). A party must support any asserted disputed or undisputed fact by citing to specific

portions of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).

A party may also support a fact by showing that the materials cited by an adverse party do not

establish the absence or presence of a genuine dispute or that the adverse party cannot produce

admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations

must be made on personal knowledge, set out facts that would be admissible in evidence, and show

that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly

support a fact in opposition to a movant's factual assertion can result in the movant's fact being

considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the only disputed facts that matter are material

ones—those that might affect the outcome of the suit under the governing law. Williams v. Brooks,

809 F.3d 936, 941-42 (7th Cir. 2016). "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.'" Daugherty

v. Page, 906 F.3d 606, 609−10 (7th Cir. 2018). The Court views the record in the light most

favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba

v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make

credibility determinations on summary judgment because those tasks are left to the factfinder.

Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited

materials and need not "scour the record" for evidence that is potentially relevant to the summary

judgment motion. Grant v. Trust. Of Ind. Univ., 870 F.3d 562, 573−74 (7th Cir. 2017) (quotation

marks omitted); see also Fed. R. Civ. P. 56(c)(3).

II.

BACKGROUND

Mr. Johnson was sentenced to a term of imprisonment at the Indiana Department of

Correction ("IDOC") in August 2015.1 He has spent time in multiple IDOC facilities since that

time. Dkt. 43-1, p. 7, 37; dkt 43-2, para. 6. The allegations described in the complaint occurred

while he was at Plainfield Correctional Facility between May 23, 2019, and August 30, 2019.

Dkt. 1; dkt. 43-1, p. 7.

Prior to the allegations described in the complaint, from August 2017 to January 2018,

Mr. Johnson worked on a dorm detail crew at Putnamville Correctional Facility. Dkt. 43-1, p. 37.

As part of this employment, Mr. Johnson was trained by IDOC officials to identify the presence

of black mold. Id. at 38 He was also trained to remove black mold and was aware of both the

administrative procedures and hands-on work involved in black mold removal. Id. at 38-41. First,

Mr. Johnson or another member of the crew would identify the black mold by sight. Id. at 38.

Then, prison officials would provide the crew with germicide, a white chemical substance, and

scratch pads to scrub the affected area. Id. If that process was unsuccessful, a safety hazard

supervisor would inspect the area and determine that the area should be power washed with bleach.

Id. at 39. Other times, the decision to power wash the area would be left to "staff, sergeants,

lieutenants, or captains." Id. At that point, the crew would be provided with bleach and a power

washer to remove the black mold. Id. at 39-40. After the black mold was removed, the crew would

be given paint to cover up the previously affected area. Id. at 38.

1 See https://www.in.gov/apps/indcorrection/ofs/ofs?offnum=985776&search2.x=58&search2.y=15.

On May 23, 2019, Mr. Johnson was involved in a physical assault with another inmate. Id.

at 19-20. As a sanction, he was placed in disciplinary segregation for 110 days. Id. at 20, 31. During

that time, he spent 23 hours a day in a cell by himself. Id. at 31. The cell had a toilet and a bed.

Id. at 28. A few inches from the bed, there was an exterior window, which was made of metal. Id.

at 28-29, 44. An electronic control for the window was broken, but a small metal grate on the

window could be manually opened from the outside by prison staff. Id. Prison staff would

occasionally open the metal grate at Mr. Johnson's request, but at all other times the grate remained

closed. Id. at 29. There was no other ventilation in Mr. Johnson's cell; the cell had a solid metal

door with a cuff port that was only opened to remove Mr. Johnson from the cell or to provide him

with a meal tray. Id. at 30.

On the first day Mr. Johnson was placed in his cell, he discovered patches of black mold

lining the caulk around the window. Id. at 36. The black mold produced a noxious odor that

Mr. Johnson described as a "stinging, kind of burn your nostrils smell." Id. at 34-35. Within four

or five days, Mr. Johnson became sick. Id. at 34. His symptoms started as "agonizing tension

headaches, and then they began building into throbbing migraines." Id. Mr. Johnson also

experienced shortness of breath, sinus infections, and wheezing. Id. at 35. The medical staff

provided Mr. Johnson with an inhaler, Excedrin, and allergy pills to treat these symptoms. Id.

Mr. Johnson had never experienced a migraine before he was confined to Plainfield Correctional

Facility. Id. at 52.

The severity of Mr. Johnson's symptoms began to improve after his time in disciplinary

segregation ended. Id. at 58-59. He still experiences wheezing and shortness of breath and

occasionally uses an inhaler, but he no longer experiences migraines, and his symptoms are

"nowhere on the scale that they used to be." Id. at 58, 59.

Mr. Johnson notified Captain Coffee and Lieutenant Girdler about the black mold in his

cell and asked to be moved to a different cell. Id. at 41-42. Captain Coffee and Lieutenant Girdler

denied this request because there were no available cells in the restrictive housing unit at that time.

Id. at 41-42. In May 2019, Captain Coffee and Lieutenant Girdler provided Mr. Johnson with

germicide, a white chemical substance, and scratch pads so he could attempt to remove the black

mold from the window. Id. at 42. Mr. Johnson cleaned the affected area in accordance with his

training as a dorm detail employee. Id. Mr. Johnson testified, "[I]t was pertaining to my health, so,

of course, I tried to clean it to the best of my ability." Id. Despite Mr. Johnson's efforts, the

germicide, white chemical substance, and scratch pads were ineffective at removing the patches

of black mold. Id. at 44. Staff members inspected the area, and Captain Coffee and Lieutenant

Girdler were notified that there were still patches of black mold in Mr. Johnson's cell. Id.

Captain Coffee and Lieutenant Girdler did not take the next step of ordering the removal

of the black mold with a power washer and bleach, nor did they arrange for a safety hazard

supervisor to inspect the black mold in Mr. Johnson's cell. Id. at 48-49. Mr. Johnson continued to

be exposed to black mold in a poorly ventilated cell for 23 hours a day, and his physical health

continued to deteriorate. Id.

After Mr. Johnson submitted grievances related to black mold in his cell, in June 2019,

Captain Coffee and Lieutenant Girdler again provided Mr. Johnson with germicide, a white

chemical substance, and scratch pads. Id. at 46. These were the same materials that were previously

ineffective at removing the black mold from Mr. Johnson's cell. Id. at 46-47. Mr. Johnson again

tried to remove the black mold to the best of his ability, but this round of cleaning was also

ineffective. Id. at 47.

Sometime thereafter, Sergeant Ballard provided Mr. Johnson with paint and a paintbrush

to cover the black mold in his cell. Id. at 51. Mr. Johnson painted over the black mold, but his

health problems persisted. Id. at 51, 58-59.

On July 9, 2019, Chet Remley, the safety hazard supervisor at Plainfield Correctional

Facility, inspected Mr. Johnson's cell. Id. at 56. Mr. Remley told Mr. Johnson that he was unaware

of Mr. Johnson's earlier complaints about black mold in his cell. Id. Following the inspection,

Mr. Remley recommended that the caulking around the window be removed and replaced. Id. at

56-57.

Following Mr. Remley's inspection, Mr. Johnson remained in the cell for the duration of

his disciplinary sanction. Id. at 58. Mr. Johnson continued to complain to staff, Captain Coffee,

and Lieutenant Girdler about the black mold in his cell. Id. at 67-69. His requests that the black

mold be removed or that he be moved to a different cell were denied. Id.

III.

DISCUSSION

A. Mr. Johnson's Eighth Amendment Claims

To prevail on his Eighth Amendment claims, Mr. Johnson must show that the defendants

imposed conditions which denied him "the minimal civilized measure of life's necessities." Gillis

v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (quoting Rhodes v. Chapman, 452 U.S. 337, 347

(1981)). He must also show that the defendants acted with a culpable state of mind:

[A] prison official may be held liable under the Eighth Amendment for denying

humane conditions of confinement only if he knows that inmates face a substantial

risk of serious harm and disregards that risk by failing to take reasonable measures

to abate it.

Farmer v. Brennan, 511 U.S. 825, 847 (1994).

A reasonable jury could conclude that the evidence in the record satisfies the objective

prong of Mr. Johnson's Eighth Amendment claims against Captain Coffee and Lieutenant Girdler.

Mr. Johnson was exposed to black mold in a poorly ventilated cell 23 hours a day for 110

consecutive days. Dkt. 43-1, pp. 20, 28-31, 36, 44. As a result of this mold exposure, he suffered

agonizing tension headaches and migraines, sinus infections, shortness of breath, and wheezing.

Dkt. 43-1, pp. 34-35. These symptoms were sufficiently serious for the medical staff to provide

him with an inhaler, Excedrin, and allergy medications. Id. at 35. Although the severity of these

symptoms improved after Mr. Johnson was removed from disciplinary segregation, he continues

to suffer long-term damage to his respiratory system and still uses an inhaler to treat these

respiratory symptoms. Id. at 58-59.

In Board v. Farnham, 394 F.3d 469 (7th Cir. 2005), the Seventh Circuit recognized that

poor ventilation and black mold exposure may violate an inmate's Eighth Amendment right to

humane conditions of confinement. The plaintiffs in Brown satisfied the objective prong of their

claims by demonstrating that the poor ventilation and airborne contaminants, such as black mold

and fiberglass dust, caused them to suffer nosebleeds, respiratory distress, and possible long-term

consequences such as worsening asthma. Id. at 486. Mr. Johnson's symptoms were at least as

serious as those suffered by the plaintiffs in Brown. Like those plaintiffs, Mr. Johnson has suffered

long-term damage to his respiratory system. In accordance with this controlling precedent, the

Court concludes that Mr. Johnson was exposed to an objectively serious harm when he was

confined to a small, poorly ventilated cell containing patches of black mold for 110 consecutive

days.

The defendants concede "it is clear that Mr. Johnson was exposed to mold within his cell

during several months in 2019 at Plainfield [Correctional Facility]." Dkt. 44, p. 16. They do not

contest that this exposure was objectively serious, nor do they contest that Mr. Johnson's medical

conditions were caused by this exposure. See generally id. at 16-17. Instead, the defendants argue

that they were not subjectively aware that the black mold in Mr. Johnson's cell posed a substantial

risk to his health and that they made reasonable efforts to abate that risk.

After due consideration of the evidence in the light most favorable to Mr. Johnson, the

Court concludes that a reasonable jury could find that Captain Coffee and Lieutenant Girdler were

subjectively aware of a substantial risk of harm to Mr. Johnson's health and failed to take

reasonable actions to address that harm. The defendants held supervisory positions in the

restrictive housing unit at Plainfield Correctional Facility. They knew that Mr. Johnson was in a

small, poorly ventilated cell for 23 hours a day. They also knew that there was black mold growing

in Mr. Johnson's cell and that he had repeatedly complained about this condition. Under these

circumstances, the evidence could support a reasonable conclusion that the defendants were aware

that the conditions Mr. Johnson was forced to endure—constant, prolonged exposure to black mold

in a small, poorly ventilated cell—posed a substantial risk to his health.

The defendants' argument that they may not have known that black mold exposure carries

health risks is unpersuasive. It is generally known that mold exposure is harmful to humans.

A moldy basement is bad enough, but it is hard to imagine that anyone could learn about a mold

infestation inches away from their nightstand and not be concerned about a substantial risk to their

health. Furthermore, the defendants were supervisors of a restrictive housing unit tasked with

overseeing black mold removal, and a jury could reasonably find that they were aware that constant

mold exposure for 110 days posed a substantial risk to Mr. Johnson's health.

The defendants' argument that they may not have been aware of the amount of black mold

growing in Mr. Johnson's cell because they may have chosen not to investigate the matter is also

unpersuasive. This argument comes dangerously close to conceding "willful blindness," which the

Supreme Court has held is a state of mind more culpable than "deliberate indifference." See

Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769-770 (2011) ("willful blindness"

occurs where a defendant subjectively believes there is a high probably that a fact exists and takes

deliberate actions to avoid knowing that fact). The defendants knew that patches of black mold

were growing in Mr. Johnson's cell, and they were personally involved in decisions about how to

remove it. The possibility that they may have shielded themselves from learning the extent of the

mold infestation in Mr. Johnson's cell is no defense.

The defendants also argue that they took reasonable steps to abate the risk of mold exposure

to Mr. Johnson's health, but this argument ignores evidence of effective reasonable alternatives the

defendants could have pursued when their initial efforts failed. In his deposition, Mr. Johnson

outlined the hands-on steps and administrative procedures for black mold removal at IDOC

facilities. The first step is to scrub the affected area with scratch pads, germicide, and a white

chemical substance. Dkt. 43-1, p. 38. If that step is ineffective, the second step is to power wash

the affected area with bleach. Id. Power washing may be ordered at the discretion of a captain, a

lieutenant, or the facility's safety hazard supervisor. Id. at 39. After the mold is removed by the

power washer and bleach, the previously affected area is painted over. Id. at 38.

Captain Coffee and Lieutenant Girdler initiated the first step in the black mold removal

process. However, when that step proved ineffective, they failed to initiate additional corrective

measures that were within their discretion as supervisors of the restrictive housing unit. They did

not approve an order to power wash the area with bleach, nor did they bring this issue to the

attention of the safety hazard supervisor. Instead, they had Mr. Johnson repeat the process of

scrubbing the area with low-strength cleaning supplies—a process that they already knew was

ineffective at removing the black mold in his cell. After that, they took no additional actions and

left Mr. Johnson to inhale black mold for the next several months.

The fact that Captain Coffee and Lieutenant Girdler took some action to address the black

mold in Mr. Johnson's cell is not dispositive. "[A] prisoner need not show that he was completely

ignored to demonstrate deliberate indifference." Myrick v. Anglin, 496 F. App'x 670, 674

(7th Cir. 2012) (holding that prison medical staff are deliberately indifferent when they persist

with treatment they know to be ineffective when reasonable alternatives are available); Brown,

394 F.3d at 486 (holding that the defendants could not avoid liability for black mold exposure by

ordering the "flimsy, non-productive band-aid procedure of merely vacuuming the grates" when

they knew that procedure would be ineffective).

Captain Coffee and Lieutenant Girdler had the authority to take reasonable measures to

abate the risk of harm to Mr. Johnson's health. Instead, they chose to follow a path that they knew

was ineffective. There is no evidence that power washing the black mold would have been

unreasonable, that removing and replacing the caulk around the window as Mr. Remley

recommended was infeasible, or that such decisions were beyond their authority as supervisors in

the restrictive housing unit at Plainfield Correctional Facility. Accordingly, the Court concludes

that a reasonable jury could find that Captain Coffee and Lieutenant Girdler violated Mr. Johnson's

Eighth Amendment rights by failing to take reasonable steps to abate the substantial risk to his

health from the black mold in his cell.

B. Qualified Immunity

Qualified immunity protects government officials from damages liability "insofar as their

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

person would have known" at the time that the conduct occurred. Campbell v. Kallas, 936 F.3d

536, 545 (7th Cir. 2017) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In considering

a qualified immunity defense, courts evaluate "(1) whether the facts, taken in the light most

favorable to the plaintiff[ ], show that the defendants violated a constitutional right; and (2) whether

that constitutional right was clearly established at the time of the alleged violation." Gonzalez

v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009).

To be "clearly established," a constitutional right "must have a sufficiently clear foundation

in then-existing precedent." District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).

The principle of fair notice pervades the qualified immunity doctrine. Campbell, 936 F.3d at

545. Qualified immunity applies unless the specific contours of the right "were sufficiently

definite that any reasonable official in the defendant's shoes would have understood that he was

violating it." Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014).

Given this emphasis on notice, clearly established law cannot be framed at a "high level of

generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). "A rule is too general if the

unlawfulness of the officer’s conduct 'does not follow immediately from the conclusion that [the

rule] was firmly established.'" Wesby, 138 S. Ct. at 590 (quoting Anderson v. Creighton, 483 U.S.

635, 641, (1987)). Existing caselaw must "dictate the resolution of the parties' dispute," Comsys,

Inc. v. Pacetti, 893 F.3d 468, 472 (7th Cir. 2018). While "a case directly on point" is not required,

"precedent must have placed the . . . constitutional question beyond debate,” White v. Pauly, 137

S. Ct. 548, 551, (2017) (quotation marks omitted). Put slightly differently, a right is clearly

established only if "every reasonable official would have understood that what he is doing violates

that right." Taylor v. Barkes, 575 U.S. 822, 825 (2015).

"The Supreme Court’s message is unmistakable: Frame the constitutional right in terms

granular enough to provide fair notice because qualified immunity 'protects all but the plainly

incompetent or those who knowingly violate the law.'" Campbell, 936 F.3d at 546 (quoting Kisela

v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quotation marks omitted).

In Brown, the Seventh Circuit held the defendants were not entitled to qualified immunity

because "there can be no question that the right to adequate and healthy ventilation was, and has

been for some time, a clearly established constitutional right at the time of the [plaintiffs']

incarceration." 394 F.3d at 487 (citing Shelby County Jail Inmates v. Westlake, 798 F.3d 1085,

1087 (7th Cir. 1986); Benjamin v. Fraser, 343 F.3d 35, 52 (2d Cir. 2003); Chandler v. Baird, 926

F.2d 1057, 1065 (11th Cir. 1991); Carver v. Knox County, 887 F.2d 1287, 1293

(6th Cir.1989); Helling v. McKinney, 509 U.S. 25, 34-36 (1993).

In addition to recognizing a general right to adequate ventilation, Brown specifically held

that the plaintiffs' exposure to black mold for a period of 126 days was an objectively serious harm

and that the defendants could not avoid liability by ordering the "flimsy, non-productive band-aid

procedure of merely vacuuming the grates" when they knew that procedure would be ineffective.

394 F.3d at 486. It was therefore clearly established that prolonged black mold exposure poses a

substantial risk to an inmate's health and that prison officials may not limit their corrective action

to procedures that they know are ineffective when reasonable alternatives are available.

As in Brown, there is evidence that Mr. Johnson was constantly exposed to black mold for

several months, that the defendants were aware of this black mold exposure, and that they engaged

in procedures that they knew were ineffective despite having the authority to order effective and

reasonable alternatives. Given the existing precedent at the time of the defendants' conduct and the

evidence in the record, there is evidence from which a reasonable jury could conclude that the

defendants violated existing clearly established federal law and are not entitled to qualified

immunity. Accordingly, the motion for summary judgment is DENIED.

IV.

CONCLUSION AND FURTHER PROCEEDINGS

The defendants’ motionfor summary judgment, dkt. [43],is DENIED. The Court will issue

a scheduling order to direct the resolution of this action in due course.

The Court previously denied Mr. Johnson's motions for assistance recruiting counsel. See

dkts. 5, 13. Given the complexities of late-stage litigation, such as a jury trial or settlement

conference, the Court sua sponte RECONSIDERS AND GRANTS Mr. Johnson's motions for

assistance recruiting counsel and will attempt to recruit counsel on his behalf.

IT IS SO ORDERED.

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

Distribution:

MICHAEL JERMAINE JOHNSON

985776

PENDLETON - CF

PENDLETON CORRECTIONAL FACILITY

Inmate Mail/Parcels

4490 West Reformatory Road

PENDLETON, IN 46064

Archer Riddick Randall Rose

INDIANA ATTORNEY GENERAL

archer.rose @ atg.in.gov

13