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

> District Court, S.D. Indiana · September 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10170520

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 14, 2023
- **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/10170520

## How later opinions describe it (automated extraction)

- reversing summary judgment grant because plaintiff did not identify a sufficiently analogous case or explain why defendant's actions were plainly excessive
- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170520. Public record. Not legal advice.