# JOHNSON v. COFFEE

> District Court, S.D. Indiana · May 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10167809

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** May 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10167809

## How later opinions describe it (automated extraction)

- 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
- holding that prison medical staff are deliberately indifferent when they persist with treatment they know to be ineffective when reasonable alternatives are available

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10167809. Public record. Not legal advice.