PASSMORE v. INDIANA DEPARTMENT OF CORRECTION -- PUTNAMVILLE CORRECTIONAL FACILITY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

MICHAEL D. PASSMORE, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00584-JPH-MJD

)

NAUMAN Lt., )

)

Defendant. )

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Michael Passmore, an Indiana Department of Correction inmate housed at

Putnamville Correctional Facility, filed this lawsuit alleging that Lt. Klayton

Nauman subjected him to unconstitutional conditions of confinement by making

him stay outside for several hours exposed to the sun.

Lt. Nauman has filed a motion for summary judgment. Dkt. [74]. Because

Lt. Nauman is entitled to qualified immunity, that motion is granted.

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 fact-

finder. 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. Trs. 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

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).

In August 2020, there was a COVID-19 outbreak in the dorm where

Mr. Passmore was housed. Dkt. 80 at 3, ¶ 6. On August 7, 2020, the inmates

who had not tested positive for the virus were told that they were being

transferred to the gym, but they needed to go outside to a ballfield in an outdoor

recreation area while the gym and dorms were cleaned by a hazmat crew. Id. at

4, ¶ 9. Lt. Nauman, one of the officers escorting the group, advised the inmates

that they would be outside for up to two hours. Id.

The inmates were taken to the outdoor recreation area because this was

the only space large enough to safely hold an entire housing unit while the

inmates' housing unit was being sanitized. Dkt. 74-1 at 2. The prison

populations from each housing unit cannot be openly mixed together. Id.

Mr. Passmore told Lt. Nauman that he was "[lily] white, a Nordic, and

[going to] burn in the sun." Dkt. 80 at 4, ¶ 11. Lt. Nauman asked Mr. Passmore

if he had a "sun pass," and when Mr. Passmore said he did not, Lt. Nauman

laughed and told Mr. Passmore it would be good for him. Id. at 4, ¶ 12.

Mr. Passmore interpreted Lt. Nauman's response as sarcastic. Id.

It took longer than two hours to clean and sanitize the housing units.

Dkt. 74-1 at 3. Mr. Passmore was outside in the sun from 8:00 a.m. to 3:00 p.m.

and again from 3:30 p.m. to 4:30 p.m. Dkt. 80 at 5, ¶ 13. On that day, the

temperature ranged from 58 degrees Fahrenheit in the morning to 82 degrees

Fahrenheit in the late afternoon, winds blew up to 8 m.p.h., and the humidity

was in the 40% range during the warmer hours. Dkt. 74-2 at 3−4.1

Lt. Nauman states that there were bleachers near the ballfield that could

provide shade to the inmates. Dkt. 74-1 at 3. Mr. Passmore disputes that the

bleachers provided shade. Dkt. 80 at 5, ¶ 13.

Mr. Passmore was severely sunburned from being outside most of the day.

Id. at 7, ¶ 18. He had blisters from the sunburn and was in such pain that he

could not sleep. Dkt. 79-1 at 14. Health care staff recommended he purchase

lotion with aloe and Tylenol to treat the burn. Id.

The Court screened the Complaint, dkt. 1, and permitted Mr. Passmore to

pursue a conditions-of-confinement claim based on allegations that he was

forced to spend eight hours outside in the sun with temperatures more than 90

degrees, resulting in his sunburn. Dkt. 33 at 1−2.

III.

Discussion

Under the Eighth Amendment, "prisoners cannot be confined in inhumane

conditions." Thomas v. Blackard, 2 F.4th 716, 720 (7th Cir. 2021) (citing Farmer

v. Brennan, 511 U.S. 825, 832 (1994)). A conditions-of-confinement claim

1 Mr. Passmore challenges the reliability of the weather history data submitted by Lt.

Nauman, dkt. 80 at 8, but that data is consistent with the Court's own independent

review of historical weather data. See Weather Underground,

https://www.wunderground.com/history/daily/KHUF/date/2020-8-7 (last visited

Aug. 22, 2023). The Court therefore takes judicial notice of that weather data from

August 7, 2020. Owens v. Duncan, 781 F.3d 360, 363 (7th Cir. 2015).

includes both an objective and subjective component. Giles v. Godinez, 914 F.3d

1040, 1051 (7th Cir. 2019). Under the objective component, a prisoner must

show that the conditions were objectively serious, "meaning that they denied the

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

risk to the inmate's health and safety." Thomas, 2 F.4th at 719 (cleaned up).

Under the subjective component, a prisoner must establish that the defendant

"acted with deliberate indifference—that [he] knew of and disregarded this

excessive risk of harm to the inmate." Id. at 720. Proving the subjective

component is a "high hurdle" that "requires something approaching a total

unconcern for the prisoner's welfare in the face of serious risks." Donald v.

Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th Cir. 2020) (internal

quotations omitted).

"[Q]ualified immunity shields officials from civil liability so long as their

conduct 'does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.'" Mullenix v. Luna, 577 U.S. 7, 11

(2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). This "clearly

established" standard ensures "that officials can 'reasonably . . . anticipate when

their conduct may give rise to liability for damages.'" Reichle v. Howards, 566

U.S. 658, 664 (2012) (quoting Anderson v. Creighton, 483 U.S. 635, 646 (1987)).

Qualified immunity "balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and the need to

shield officers from harassment, distraction, and liability when they perform

their duties reasonably." Pearson, 555 U.S. at 231.

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

clear foundation in then-existing precedent." District of Columbia v. Wesby, 583

U.S. 48, 63 (2018). 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). While "a case directly on point" is not required, "precedent must have

placed the . . . constitutional question beyond debate." White v. Pauly, 580 U.S.

73, 79 (2017) (quotation marks omitted). Absent an analogous case, a defendant

may not be entitled to qualified immunity if "his alleged conduct is so egregious

that it is an obvious violation of a constitutional right." Leiser, 933 F.3d at 702.

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).

When the affirmative defense of qualified immunity is raised, "the burden

shifts to the plaintiff to defeat it." Leiser, 933 F.3d at 701. To meet that burden

and overcome qualified immunity, the plaintiff must "show both (1) that the facts

make out a constitutional violation, and (2) that the constitutional right was

'clearly established' at the time of the official's alleged misconduct." Abbott v.

Sangamon Cnty., 705 F.3d 706, 713 (7th Cir. 2013). The failure to do so means

a plaintiff "cannot defeat" a "qualified immunity defense." Findlay v. Lendermon,

722 F.3d 895, 900 (7th Cir. 2013) (reversing summary judgment grant because

plaintiff did not identify a sufficiently analogous case or explain why defendant's

actions were plainly excessive). The Court has discretion to address the elements

in either order. Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019). Here, the Court

finds the second element dispositive.

Mr. Passmore cites three Supreme Court cases in opposition to

Lt. Nauman's qualified immunity argument: Helling v. McKinney, 509 U.S. 25

(1993), Rhodes v. Chapman, 452 U.S. 337 (1981), and Hope v. Pelzer, 536 U.S.

730 (2002). Dkt. 79 at 20. In Helling, the Court concluded that a prisoner stated

an Eighth Amendment conditions-of-confinement claim when he was forced to

share a cell with a chain-smoker, thus exposing him to risks of future injury to

his health. 509 U.S. at 35. Helling would not have put Lt. Nauman on notice that

his conduct violated the Eighth Amendment. The plaintiff in Helling was

subjected to second-hand smoke daily, whereas Mr. Passmore was placed

outside for several hours on one day while the facility was cleaned to prevent the

spread of infectious disease.

Rhodes is even less analogous. There, the Supreme Court concluded that

double-celling inmates did not run afoul of the Eighth Amendment because it

"did not lead to deprivations of essential food, medical care, or sanitation. Nor

did it increase violence among inmates or create other conditions intolerable for

prison confinement." 452 U.S. at 348.

The facts in Hope v. Pelzer are more like the facts presented in Mr.

Passmore's case, but not so similar as to create a clearly established

constitutional right. In Hope, an inmate was handcuffed to a hitching post as a

punishment for about seven hours, during which time he was given water only

once and no bathroom breaks. 536 U.S. at 735. The guards forced him to remove

his shirt, so he received a sunburn due to the exposure to the sun. Id. at 734−35.

At one point, a guard taunted him by giving water to some dogs, bringing a water

cooler over to Hope, and then intentionally spilling the water on the ground. Id.

at 735.

The Court found that the "obvious cruelty inherent" in the practice of

putting inmates in a hitching post for hours placed the defendants on notice that

their actions violated the Eighth Amendment. Id. at 745. The Court explained:

Hope was treated in a way antithetical to human dignity—he was

hitched to a post for an extended period of time in a position that

was painful, and under circumstances that were both degrading and

dangerous. This wanton treatment was not done of necessity, but as

punishment for prior conduct.

Id.

Here, in contrast, Mr. Passmore does not allege that he was handcuffed in

one position for multiple hours, deprived of water or access to a bathroom, or

that Lt. Nauman forced him to remain outside as a form of punishment. Rather,

there was an uncontested legitimate reason why the inmates had to stay outside

for several hours—the inside of the prison was being disinfected to prevent

exposure to the COVID-19 virus. Additionally, while Lt. Nauman's response to

Mr. Passmore's expression of concern about being in the sun appears to have

been sarcastic, dkt. 80 at 4, ¶¶ 11-12, it does not show that Lt. Nauman made

Mr. Passmore stay outside as a punishment, with malicious intent, or with

deliberate indifference to his well-being. And Mr. Passmore has not designated

other evidence from which such an inference could reasonably be drawn. While

the Supreme Court recognized that "unnecessary exposure to the heat of the

sun" could pose a risk to an inmate's health, id. at 738, Hope does not establish

that Mr. Passmore had a clearly established constitutional right to not be outside

in the sun for several hours on a relatively mild summer day when necessitated

by the need to disinfect the facility for inmate safety.

In sum, Helling, Rhodes, and Hope are meaningfully distinguishable, and

therefore do not aid Mr. Passmore in overcoming qualified immunity. Moreover,

the Court has found no other Supreme Court or Seventh Circuit cases that would

have placed Lt. Nauman on notice that his conduct violated the Eighth

Amendment. Indeed, other courts have found comparable circumstances to not

violate the Eighth Amendment. E.g., Hernandez v. Battaglia, 673 F. Supp. 2d

673, 678 (N.D. Ill. Dec. 14, 2009) (concluding that forcing inmates to remain

handcuffed, with no access to shade or water, outside in 80−85 degree weather

for up to five hours was not a serious condition under the Eighth Amendment);

Banda v. Corzine, 2007 WL 3243917, *9 (D.N.J. Nov. 1, 2007) (concluding that

being placed in the recreation yard for three to five hours on a summer day is

not an adverse condition).

Accordingly, Lt. Nauman is entitled to qualified immunity, and his motion

for summary judgment is granted.

IV.

Conclusion

For the foregoing reasons, Lt. Nauman is entitled to qualified immunity.

Therefore, the motion for summary judgment is granted. Dkt. [74].

Final judgment will issue in a separate entry.

SO ORDERED.

Date: 9/14/2023

Sjamnu Pataick Hanbor

James Patrick Hanlon

Distribution: United States District Judge

Southern District of Indiana

MICHAEL D. PASSMORE

962822

PUTNAMVILLE - CF

PUTNAMVILLE CORRECTIONAL FACILITY

Electronic Service Participant — Court Only

Eric Ryan Shouse

Lewis And Wilkins LLP

shouse@lewisandwilkins.com

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