UNDERWOOD v. CONYERS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

CHRISTOPHER UNDERWOOD, )

)

Plaintiff, )

)

v. ) No. 1:21-cv-00685-JMS-TAB

)

MICHAEL CONYERS, et al. )

)

Defendants. )

ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Christopher Underwood alleges in this civil rights suit that the defendants violated

his Eighth Amendment rights when they failed to provide him a mattress, bedding, eating utensils,

and hygiene products including soap, after moving him to segregated housing. Defendants have

filed motions for summary judgment. Dkt. 38; dkt. 44. For the reasons below, Aramark's motion

is granted and the correctional defendants' motion is denied.

I.

Standard of Review

Parties in a civil dispute may move for summary judgment, which is a way of resolving a

case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no

genuine dispute as to any of the material facts, and the moving party is entitled to judgment as a

matter of law. Id.; Pack v. Middlebury Comm. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021). A

"genuine dispute" exists when a reasonable factfinder could return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those that

might affect the outcome of the suit. Id.

When reviewing a motion for summary judgment, the Court views the record and draws

all reasonable inferences from it in the light most favorable to the nonmoving party. Khungar v.

Access Cmty. Health Network, 985 F.3d 565, 572-73 (7th Cir. 2021). 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 is only required to

consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it is not required to "scour

every inch of the record" for evidence that is potentially relevant. Grant v. Tr. of Ind. Univ., 870

F.3d 562, 573-74 (7th Cir. 2017).

"[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'

which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party may be discharged by

'showing'—that is, pointing out to the district court—that there is an absence of evidence to support

the nonmoving party's case." Id. at 325.

II.

Factual Background

Because Defendants have moved for summary judgment under Rule 56(a), the Court views

and recites the evidence "in the light most favorable to the non-moving party and draw[s] all

reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009)

(citation omitted).

On February 26, 2020, Mr. Underwood was moved to disciplinary segregation around

10:00 am. Underwood Deposition, dkt. 39-2 at 15.1 None of his possessions from general

population were moved with him. He had no mattress, sheets, blankets, soap, toothpaste, fork, or

1 The page numbers printed on the deposition transcript differ from the page numbers of the .pdf of the

transcript docketed on the Court's electronic filing system. The Court refers to the .pdf page numbers rather

than the printed page numbers.

cup. Id. at 23, 26. The cell was completely empty except for the clothes Mr. Underwood had on.

He felt like he was freezing with no sheets or blankets. Id. at 40.

Mr. Underwood complained about these conditions to Sergeant Locke and Lieutenant

Martz. Id. at 27-28; 31. He complained to every officer he came in contact with from February 26,

2020, through March 5, 2020. Id. at 31. He complained about being cold, having no bedding, no

soap, and no utensils or cup to eat or drink with. Id. He ate with his hands because he had no

utensils, but he was unable to wash his hands between using the toilet and eating because he had

no soap. Id. at 44. As a result, he vomited more than once. Id. at 43. On March 3, 2020, he

submitted a healthcare request form stating that he would start a hunger strike because of the

unsanitary conditions. Underwood Affidavit, dkt. 51 at 4-5.

Mr. Underwood received a mattress around 2:00 a.m. on February 27, 2020, but nothing

else. Dkt. 39-2 at 34. Spending the first 16 hours without a mattress made his back hurt, so he

requested Tylenol from the medical department. Dkt. 51 at 6-7. On March 3, 2020, defendant

Locke brought him bedding and a spork. Dkt. 39-2 at 37.

Mr. Underwood was told that he would receive hygiene items when he was taken to

shower, but there were none. Id. at 34; dkt 2-1 at 5. He repeatedly asked for hygiene supplies, to

no avail. Sgt. Commander told him he wasn't the only inmate without them. Dkt. 39-2 at 42-43.

Later, when officers came to offer him a shower, he did not go because they told him there was no

soap, shampoo, toothpaste, or razors to use. Id. at 39, 50-51. He finally received hygiene products

on the evening of March 4, 2020, and was able to wash up at the sink in his cell. Id. at 36, 40. He

received his first shower in segregation on March 5, 2020. Id. As a result of his experience,

Mr. Underwood suffers panic attacks. Id. at 47.

In a grievance response, Sgt. Locke stated:

This Offender made complaints to Major Conyers and to Captain Mason but I do

not know the extent of the complaints. This Offender never sent an informal

grievance as he just asked me for my information earlier this week. When I was

made aware of the situation on 03 March 2020, I contacted Officer Meyers that day

and had sheets and blankets delivered. I also got with the kitchen and retrieved a

spork. If I had not done these things, the Offender would STILL be sending out

request forms and waiting for the items.

Dkt. 44-5 at 9. Some of the correctional defendants submitted unsworn email correspondence in

support of their motion for summary judgment. Dkt. 44-6.2 Defendant Conyers stated that he does

not recall the incident, but that if he had been aware that Mr. Underwood lacked bedding and

hygiene, "it would have been corrected." Id. at 1. Defendant Mason stated that he had no

recollection of Mr. Underwood's allegations. Id. at 4.

Defendant Martz stated that inmates often lacked bedding and hygiene supplies when they

were moved to segregation. Id. at 2. Hygiene totes were refilled every Monday and staff were

instructed on how to "ensure they lasted the whole week." Id. Defendant Commander stated that

the unit was short staffed, and it was difficult to fulfill his duties as a leader and fill in for staff

shortages. Id. at 3. He further stated that Mr. Underwood's mattress and bedding should have been

moved to segregation from his previous housing unit and that it was difficult to get replacement

linens, in part because inmates sometimes sold their bedding.3 Id.

Mr. Underwood argues that defendant Aramark is responsible for his lack of eating utensils

and cup while in segregation. Brandon Miller, the Food Services Director for Aramark at

2 The Court notes that the correctional defendant gave the exhibits to their summary judgment

motion generic titles, such as "Exhibit 1." Local Rule 5-6(a)(2) provides that exhibits to a main

document must be "given a title which describes its content." Counsel should take care to follow

this Rule in future filings.

3 Nothing in the record suggests that Mr. Underwood sold or destroyed any of his bedding.

Pendleton attests that Aramark cannot deliver replacement cups and sporks directly to inmates in

segregation, that Aramark was not aware that Mr. Underwood lacked a cup and spork in

segregation, and Aramark was required by the Indiana Department of Correction to implement the

use of reusable cups and sporks. Miller Declaration, dkt. 39-1. Mr. Underwood argues that

Mr. Miller is lying about Aramark's lack of awareness of his situation. Dkt. 47 at 7. He bases his

argument on the fact that he sent several request slips about the issue, but he does not know if

Aramark received them. Dkt. 47 at 5-8, annotating deposition transcript, dkt. 39-2 at 56, 61.

III.

Discussion

Mr. Underwood argues that he suffered unconstitutional conditions of confinement in

segregated housing from February 26, 2020, to March 5, 2020. The correctional defendants argue

that the conditions Mr. Underwood suffered are insufficient to support an Eighth Amendment

claim. And Aramark argues that it was not deliberately indifferent to Mr. Underwood's plight

because it was unaware of his lack of access to a cup and spork.

A. Eighth Amendment

The Eighth Amendment's proscription against cruel and unusual punishment protects

prisoners from the "unnecessary and wanton infliction of pain" by the state. Hudson v. McMillian,

503 U.S. 1, 5 (1992) (citation and internal quotations omitted). Pursuant to the Eighth Amendment,

prison officials have the duty to provide humane conditions of confinement: "prison officials must

ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take

reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825,

832 (1994) (internal quotation omitted).

To succeed on a conditions-of-confinement claim under the Eighth Amendment, a plaintiff

must demonstrate that 1) he was incarcerated under conditions that posed a substantial risk of

objectively serious harm, and 2) the defendants were deliberately indifferent to that risk, meaning

they were aware of it but ignored it or failed "to take reasonable measures to abate it." Townsend

v. Cooper, 759 F.3d 678, 687 (7th Cir. 2014); Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014);

Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (citing cases).

The objective showing requires "that the conditions are sufficiently serious—i.e., that they

deny the inmate the minimal civilized measure of life's necessities, creating an excessive risk to

the inmate's health and safety." Giles v. Godinez, 914 F.3d 1040, 1051 (7th Cir. 2019) (internal

quotation omitted). "According to the Supreme Court, … 'extreme deprivations are required to

make out a conditions-of-confinement claim.'" Id. (quoting Hudson, 503 U.S. at 9). "If under

contemporary standards the conditions cannot be said to be cruel and unusual, then they are not

unconstitutional, and [t]o the extent that such conditions are restrictive and even harsh, they are

part of the penalty that criminal offenders pay for their offenses against society." Id. (internal

quotation omitted).

After showing the objective component, a plaintiff must next establish "a subjective

showing of a defendant's culpable state of mind," and "the state of mind necessary to establish

liability is deliberate indifference to the inmate's health or safety." Id. (internal quotation omitted).

In addition, negligence or even gross negligence is not sufficient to support a § 1983 claim. See

Huber v. Anderson, 909 F.3d 201, 208 (7th Cir. 2018).

1. Aramark

The undisputed evidence shows that Aramark was not aware that Mr. Underwood lacked

a cup and spork in segregation, and that its employees could not have delivered those items to

Mr. Underwood in segregation if they had been aware of the issue. Dkt. 39-1. Mr. Underwood

attempts to rebut this by arguing that Mr. Miller is lying about Aramark's lack of awareness of his

situation. Dkt. 47 at 7. He bases his argument on the fact that he sent several request slips about

the issue, but he does not know if Aramark received them. Dkt. 47 at 5-8, annotating deposition

transcript, dkt. 39-2 at 56, 61. Mr. Underwood has presented no evidence other than his own

speculation that Aramark received notice of his request slips. And he has no evidence that Aramark

could have delivered utensils to him in segregation had an employee known about his lack of

utensils. A party opposing summary judgment must "respond to the moving party's properly-

supported motion by identifying specific, admissible evidence showing that there is a genuine

dispute of material fact for trial." Grant v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017).

Inferences supported only by "speculation or conjecture" will not suffice. Skiba v. Ill. Cent. R. R.

Co., 884 F.3d 708, 721 (7th Cir. 2018). Because there is no dispute that Aramark did not know

Mr. Underwood had no utensils and could not have delivered them to him in segregation, it is

entitled to summary judgment. Townsend, 759 F.3d at 687 (to be deliberately indifferent, defendant

must be aware of a risk and fail to "take reasonable measures to abate it.").

2. Correctional Defendants

The record shows that Mr. Underwood was subjected to approximately five nights in a cold

cell with no sheets or blankets in late February and early March. He had no soap or utensils to eat

with. Thus, he was forced to eat with his hands without being able to wash them. The unsworn

statements of the correctional defendants support Mr. Underwood's deposition testimony about the

conditions he experienced, his repeated complaints to correctional defendants, and the timing of

their eventual responses.

When evaluating a temperature claim, a court must examine multiple factors including: the

severity of the cold, its duration, whether the prisoner has alternative means to protect himself

from the cold, and whether there are other uncomfortable conditions in addition to the cold. Dixon

v. Godinez, 114 F.3d 640, 644 (7th Cir. 1997). There is no evidence in the record regarding the

actual temperature in Mr. Underwood's cell. But he testified that he was freezing, and it is

undisputed that he had no extra clothing to put on or blankets to wrap himself in. The conditions

lasted at least 5-6 days, when he received sheets and a blanket. In addition, he suffered from other

uncomfortable conditions at the same time—a lack of access to basic hygiene products and eating

utensils.

The correctional defendants do not dispute that Mr. Underwood was inadequately protected

from the cold. Instead, they argue that the conditions didn't violate his constitutional rights because

he did not seek medical attention for any cold-related illness in the weeks following the incident.

Dkt. 46 at 6-7. But the Seventh Circuit has noted that excessive cold can "amount to an Eighth

Amendment violation, even if the prisoner has not yet come down with the flu." Gray v. Hardy,

826 F.3d 1000, 1006 (7th Cir. 2016).

As for Mr. Underwood's lack of access to hygiene products, the correctional defendants

rely on a 1988 Seventh Circuit case to argue that the denial of toothpaste for more than a week

does not amount to a constitutional violation. Dkt. 46 at 6 (citing Harris v. Fleming, 839 F.2d 1232,

1234 (7th Cir. 1988)). But they fail to acknowledge more recent caselaw holding that "dental care

is a basic human need" and that it would be unconstitutional to deny inmates oral hygiene products.

Board v. Farnham, 394 F.3d 469, 484 (7th Cir. 2005) (denying qualified immunity for lack of

toothpaste for three and a half weeks). The same is true for soap. Gray, 826 F.3d at 1006

("[H]ygienic supplies sufficient to meet basic needs are constitutionally required."). This is

particularly so when the person lacking access to soap also lacks access to eating utensils. Id. at

1005-6 (reversing summary judgment for warden because the combination of the alleged

conditions could violate the Eighth Amendment even if they did not when evaluated individually).

Similarly, although the Seventh Circuit has held that receiving one shower per week is not

a constitutional violation, a jury could consider Mr. Underwood's lack of access to a shower with

soap, a razor, and other hygienic supplies for a week when determining whether his conditions, as

a whole, were unconstitutional. See Myrick v. Anglin, 496 F. App'x 670, 675 (7th Cir. 2012)

(weekly showers do not violate the Constitution); Gray, 826 F.3d at 1005-6 (reversing summary

judgment for warden because the combination of the alleged conditions could violate the Eighth

Amendment even if they did not when evaluated individually).

In conclusion, a reasonable juror could conclude that the combination of conditions

Mr. Underwood experienced for at least five days—a cold cell with no bedding or extra clothes to

keep warm, no soap to wash his hands, and no utensils to eat with—denied him a "minimal

civilized measure of life's necessities" and that the defendants were aware of and ignored this

deprivation. Giles, 914 F.3d at 1051. Therefore, the correctional defendants are not entitled to

summary judgment on this claim.

B. Qualified Immunity

The correctional defendants argue that they are entitled to judgment as a matter of law

based on qualified immunity. "Qualified immunity attaches when an official's conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known." White v. Pauly, 137 S. Ct. 548, 551 (2017) (citation omitted) (internal quotation

marks omitted). "[T]wo central questions must be addressed in the course of determining whether

qualified immunity is available: whether the plaintiff has alleged a deprivation of a constitutional

right at all, and whether the right at issue was clearly established at the time and under the

circumstances presented." Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (citation

omitted).

To make a qualified immunity determination, the Court must "(1) determine whether the

plaintiff has alleged the deprivation of an actual constitutional right and (2) if so, determine

whether that right was clearly established at the time of the alleged violation." Sparing v. Village

of Olympia Fields, 266 F.3d 685, 688 (7th Cir. 2001) (citing Saucier v. Katz, 533 U.S. 194 (2001)

(citations omitted)). Once raised, the plaintiff, not the defendant, carries the burden of overcoming

the affirmative defense. Sparing, 266 F.3d at 688 (citing Spiegel v. Cortese, 196 F. 3d 717 (7th

Cir. 1999). In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Supreme Court "held that courts

may grant qualified immunity on the ground that a purported right was not 'clearly established' by

prior case law, without resolving the often more difficult question whether the purported right

exists at all." Id. at 227 (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)).

This Court's analysis must follow the Supreme Court's rulings. As the Court has explained,

"A clearly established right is one that is sufficiently clear that every reasonable official would

have understood that what he is doing violates that right. . . . Put simply, qualified immunity

protects all but the plainly incompetent or those who knowingly violate the law." Mullenix v. Luna,

577 U.S. 7, 11−12 (2015) (cleaned up). Courts cannot define "clearly established law at a high

level of generality" but rather must assess "whether the violative nature of particular conduct is

clearly established." Id. (cleaned up). The doctrine of qualified immunity "gives government

officials breathing room to make reasonable but mistaken judgments[.]" Carroll v. Carman, 574

U.S. 13, 17 (2014).

The Court has already determined that a reasonable juror could find that Mr. Underwood's

conditions of confinement violated the Eighth Amendment.

So, the Court must determine whether that right was clearly established in February 2020,

when the alleged violation occurred. In 2016, the Seventh Circuit held that "hygienic supplies

sufficient to meet basic needs are constitutionally required." Gray, 826 F.3d at 1006. In that case,

the court also determined that various conditions that might not violate the Eighth Amendment

alone, may do so in combination. Id. at 1005-6 (reversing summary judgment for warden because

the combination of the alleged conditions could violate the Eighth Amendment even if they did

not when evaluated individually).

Mr. Underwood's cell may not have been extremely cold for the entire duration of his stay

in segregation. And a lack of spork may not have violated his Eighth Amendment rights if he had

the means to properly clean his hands before eating. But the denial of soap was clearly a

constitutional violation, and the lack of utensils and means to keep warm in winter further

contributed to his unconstitutional conditions.

Because it was clearly established by 2020 that inmates had a right to soap and that their

conditions should be evaluated as a whole, and because a genuine issue of fact remains as to

whether the correctional defendants took reasonable steps to provide Mr. Underwood

constitutional conditions, summary judgment on the grounds of qualified immunity is not

appropriate. Isby v. Brown, 856 F.3d 508, 530 (7th Cir. 2017). Accordingly, the correctional

defendants are not entitled to judgment as a matter of law based on qualified immunity.

IV.

Conclusion

Aramark's motion for summary judgment, dkt. [38], is granted. The clerk is directed to

terminate Aramark as a defendant on the docket. No partial final judgment shall issue at this time.

The correctional defendants' motion for summary judgment, dkt. [44], is denied.

Because it is the Court's preference that the plaintiff be represented by counsel for trial or any

potential settlement conference, the Court will attempt to recruit counsel to represent the plaintiff. The

plaintiff shall have through March 3, 2023, in which to file a motion for recruitment of counsel or

object to the recruitment of counsel on his behalf. The clerk is directed to include the motion for

counsel form with the plaintiff's copy of this Order. After counsel has been recruited for the plaintiff,

the magistrate judge is asked to hold a settlement conference.

IT IS SO ORDERED.

Date: 2/3/2023 -

Hon. Jane Magnus-Stinson, Judge

‘United States District Court

Southern District of Indiana

Distribution:

CHRISTOPHER UNDERWOOD

863907

PENDLETON - CF

PENDLETON CORRECTIONAL FACILITY

Electronic Service Participant — Court Only

Christopher Douglas Cody

HUME SMITH GEDDES GREEN & SIMMONS

ccody@humesmith.com

Julie Tront

Office of Indiana Attorney General

julie.tront@atg.in.gov

Magistrate Judge Tim A. Baker

12