PERRY v. REAGLE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RODNEY S. PERRY, SR., )

)

Plaintiff, )

)

v. ) No. 1:21-cv-02753-SEB-TAB

)

DENNIS REAGLE Warden, )

DUANE ALSIP Asst. Warden, )

JIM BOLDMAN, )

MICHAEL PLFEEGER, )

DON WILLIAMS, )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Rodney Perry is an Indiana Department of Correction ("IDOC") inmate. In this

action he alleges that he faced unconstitutional conditions of confinement while incarcerated at

Pendleton Correctional Facility ("Pendleton"). Defendants Dennis Reagle, Duane Alsip, Jim

Boldman, Michael Pfleeger, and Don Williams have moved for summary judgment. Dkt. [129].1

For the reasons below, that motion is GRANTED IN PART AND DENIED IN PART.

I.

Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a). 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

1 The clerk is directed to terminate Property Officer D. Davis as a defendant on the docket because the

claims against him were severed into a new civil action. See dkt. 49 and Perry v. Davis, 1:22-cv-692-RLY-

KMB (judgment entered April 21, 2023).

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). A court

only has to consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it need not

"scour the record" for evidence that might be relevant. Grant v. Trs. of Ind. Univ., 870 F.3d 562,

573−74 (7th Cir. 2017) (cleaned up).

A party seeking summary judgment must inform the district court of the basis for its motion

and identify the record evidence it contends demonstrates 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.

Whether a party asserts that a fact is undisputed or genuinely disputed, the party must

support the asserted fact by citing to particular parts of the record, including depositions,

documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). 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).

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 Plaintiff and draws all reasonable

inferences in Plaintiff's favor. Khungar, 985 F.3d at 572–73.

Plaintiff formerly was an inmate at Pendleton at the time of the events in this lawsuit, and

is now housed at Indiana State Prison. Dkt. 130-1, pp. 9-10. During the relevant time period,

Defendant Reagle was Pendleton's Warden, dkt. 144-1, p. 90; Defendant Alsip was Pendleton's

Deputy Warden, id. at 100; Defendant Boldman was a Captain with general oversight of the G cell

house ("G-house") at Pendleton, id. at 111; Defendant Pfleeger was a Lieutenant who also had

oversight responsibilities for G-house, id. at 130; and Defendant Williams was a Sergeant who

worked in G-house, id. at 136.

On August 30, 2021, a guard alleged that a sweep of Plaintiff's cell in general population

at Pendleton uncovered a 4-inch-long screw that could be used as a weapon. Dkt. 130-1, p. 23.

Plaintiff was then immediately taken to G-house, a segregation unit, where he remained until mid-

December 2021. Id. He was not allowed to take any belongings with him to G-house, except for

the t-shirt, shorts, and shower shoes he was wearing. Id. Subsequently, on shower days, Plaintiff

would receive other used, but cleaned, clothing, although Plaintiff thought he was entitled to

receive brand new clothing under IDOC policies. Id. at 36-37.

There initially was no mattress in the single-person cell in G-house where Plaintiff was

taken, and at first he had to sleep on a bare metal frame. Id. at 27. A mattress was brought to him

about 32 hours later. Id. at 30. Plaintiff told the guard that the mattress looked dirty, and he did not

want it in his cell unless it was wiped down with germicide first. Id. at 30-31. The guard then did

wipe it down with germicide before putting it in Plaintiff's cell. Id. Plaintiff also was given used,

but cleaned, bedding, although Plaintiff thought he was entitled to receive all-new bedding under

IDOC policies. Id. at 35.

In his deposition, Plaintiff described the condition of his G-house cell when he arrived as

"nasty," "gross," and "filthy. It had urine dried on the floors, on the walls around the toilet. There

was dry feces around the toilet, on the rims of the toilet, a lot of trash and debris in it." Id. at 28-29.

He also said that food waste accumulated on the floor over several weeks. Id. at 34. And, he

testified that although he asked Defendant Williams to bring him cleaning supplies shortly after he

got to the cell, he received no such supplies for at least 60 days after being sent to G-house.2 Id. at

29, 65.

Plaintiff also stated in his deposition that the showers in G-house "were very nasty" and

"disgusting." Id. at 49. Specifically, he claimed that they smelled like urine, had scum build-up on

the walls, had excess soap and hair on the floor, and were rarely cleaned. Plaintiff also

characterized Defendant Alsip's statement in an interrogatory that the showers were cleaned

"almost every day" as "the biggest lie he ever told." Id. at 51.

During Plaintiff's time in G-house, construction renovations were occurring there. Id. at

44-45. At first, the floor above Plaintiff's cell was being renovated, then inmates were moved to

that floor and the floor below was renovated. Id. at 40-41. Plaintiff alleges that the construction

noise was very loud and would commence at about 6 to 6:30 a.m. every morning, and that the work

also generated a lot of fumes and debris. Id. Contrary to assertions by Defendants, Plaintiff claims

inmates were not provided with earplugs for the noise, nor were the construction sites separated

from the rest of the prison by plastic sheeting. Id. Plaintiff had headaches and nosebleeds while he

was in G-house, which he attributes to the construction work. Id. at 46. The medical staff gave him

ibuprofen for his headaches. Id. A nurse examined Plaintiff in connection with the nosebleeds and

although she appeared "concerned," ultimately, she believed there was nothing that could be done

2 Defendants assert that Plaintiff "has not presented competent evidence to refute that staff offered to spray

offenders' cell with germicide on a weekly basis and that he had access to wash cloths or towels to use as

cleaning materials." Dkt. 147, p. 11. But Plaintiff's deposition testimony to the contrary is "competent

evidence." See Koger v. Dart, 950 F.3d 971, 974 (7th Cir. 2020) (noting that a party's "self-serving" sworn

statements need not be corroborated to be considered on summary judgment).

Also, Plaintiff mentioned in his deposition that having access to washcloths and towels clearly refers to

items for personal hygiene, not cleaning one's cell. And, it is unclear that staff "offered to spray offenders'

cell with germicide" as the standard process for cleaning cells. Rather, the evidence indicates that staff

would give a sponge to an offender, staff would spray chemical cleaner on the sponge for the offender to

use to clean surfaces, and staff would apply more cleaner to the sponge if needed. Dkt. 130-3, pp. 5-6.

Plaintiff has unequivocally denied having access to any cleaning supplies for his cell for 60-plus days after

arriving in G-house.

about them. Id. at 47. Any medical records related to these conditions have not been designated to

the Court.

Plaintiff also claims that in October and November 2021, prison staff refused to allow

inmates to have hats and coats to use for outdoor recreation, despite it being very cold outside on

some days. Id. at 38. Plaintiff also saw an officer conceal a bin full of hats and coats when Plaintiff

told other inmates about the bin. Id. Plaintiff assumed that the officers wanted to discourage

inmates from taking outdoor recreation because of the extra work it required of the officers.

Officers began providing hats and coats for outdoor recreation in December 2021. Id. at 39.

Plaintiff also challenges the COVID-19 protocols at Pendleton during the fall of 2021. He

contends that he did not have a mask when sent to G-house, and none were provided to inmates

until mid-November.3 Id. at 43, 59. This is contrary to the interrogatory statement by Defendant

Reagle that inmates were given new masks about every two weeks, and by other defendants that

they were provided at least once a month. Dkt. 144-1, pp. 96, 103. Plaintiff also testified during

his deposition that guards often would seize masks from inmates' cells. Dkt. 130-1, p. 57. Plaintiff

also asserts that he often saw staff not wearing masks or wearing them improperly, contrary to

IDOC policy at the time generally (but not always) requiring mask-wearing by staff. Id. at 44; dkt.

144-1, p. 60. Plaintiff also claims inmates were not given adequate soap and hand sanitizer during

this time frame. Dkt. 130-1, pp. 54-55. Although the Defendants assert that fresh soap and sanitizer

were put into inmates' shower cubbies at least once a week, Plaintiff claims he only regularly

received shaving razors in his cubby. Id. Defendants have designated no evidence related to IDOC

3 Plaintiff also states that having a mask would have helped alleviate the construction fumes and debris

problem.

or Pendleton's COVID policies and procedures during the fall of 2021. Plaintiff has not alleged or

designated any evidence to suggest that he contracted COVID while in G-house.

Plaintiff filed several contemporaneous grievances related to these issues. The Pendleton

grievance specialist "returned," i.e., did not process, all of them for various reasons, so they were

never passed along to Defendants Reagle, Alsip, or Boldman.4 Dkt. 130-4. Within Plaintiff's

designated evidence, he has included a letter dated September 13, 2021, addressed to Defendants

Reagle and Alsip, complaining about the sanitation, construction, and COVID issues in G-house,

among other issues. Dkt. 144-1, p. 22. Defendant also alleges that he personally raised concerns

about his conditions of confinement to Defendant Pfleeger. Dkt. 130-1, p. 73-74. As for Defendant

Boldman, he claims that he once spoke to him about confiscation of legal materials and was

unhappy about Defendant Boldman not wearing a mask, with Defendant Boldman replying that

he did not have to do so because he was a Captain. Id. at 74-75.

Plaintiff also points to a memo Defendant Reagle sent to Pendleton staff in October 2020.

In it, he addressed staff concerns about whether a certain directive, unrelated to any of the issues

Plaintiff raises here, violated IDOC policy, and stated in part, "IDOC is a fluid organization and

often we have to have policies that give a lot of lead [sic] way or have to remember that being

ordered to break policy does not invalidate an order, only violations of law or immoral orders can

be disobeyed." Dkt. 144-1, p. 198.

Plaintiff filed this suit in October 2021.5 Dkt. 2. After screening, this Court allowed

Plaintiff to proceed with Eighth Amendment claims against the Defendants based on the conditions

4 The Defendants have elected not to claim as an affirmative defense that Plaintiff failed to exhaust

administrative remedies through the IDOC grievance process.

5 Plaintiff never filed an amended complaint. Facts relating to events taking place after October 2021 are

taken from the designated evidence.

of confinement he experienced in G-house including: (1) his cell being unclean and not being

provided cleaning supplies; (2) the showers being unclean; (3) not being provided with adequate

clean bedding; (4) not being provided with adequate clothing; (5) not being provided adequate

warm clothing to participate in outdoor recreation; (6) not being adequately protected against

construction fumes and noise at the prison; and (7) not being adequately protected against COVID

exposure. Dkt. 43. The Defendants have now moved for summary judgment on all pending claims.

Dkt. 129.

III.

Discussion

Defendants are seeking summary judgment on several grounds. First, Defendants Reagle,

Alsip, and Boldman contend there is no basis for them to be personally liable for any alleged

wrongdoing. Second, all Defendants argue that they are entitled to qualified immunity regarding

Plaintiff's construction work and COVID-related claims. Third, all Defendants argue that there is

no genuine issue of material fact as to whether they were deliberately indifferent with respect to

any of Plaintiff's claims. They seek judgment as a matter of law in their favor.

A. Conditions of Confinement Generally

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)). Prisons must "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 inmates.'" Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer,

468 U.S. 517 (1984)).

A conditions-of-confinement claim 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 and created "an excessive risk to his health

and safety." Id. (cleaned up). Under the subjective component, a prisoner must establish that the

defendants had a culpable state of mind — that they "were subjectively aware of these conditions

and refused to take steps to correct them, showing deliberate indifference." Thomas, 2 F.4th 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). Neither "negligence

[n]or even gross negligence is enough[.]" Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008).

B. Personal Liability of Defendants Reagle, Alsip, and Boldman

The first issue the Court addresses is whether Defendants Reagle, Alsip, or Boldman can

be held liable in their individual capacities for any of Plaintiff's claims related to his conditions of

confinement because of an alleged lack of personal involvement related to those claims.6

"'To recover damages under § 1983, a plaintiff must establish that a defendant was

personally responsible for the deprivation of a constitutional right.'" Whitfield v. Spiller, 76 F.4th

698, 706 (7th Cir. 2023) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). For this

purpose, each defendant is considered independently. Id. A prison official is personally responsible

for purposes of § 1983 if conduct by others causing a constitutional deprivation occurs at the

official's direction and with the official's knowledge and consent. Vance v. Peters, 97 F.3d 987, 992

(7th Cir. 1996). "That is, [the official] must know about the conduct and facilitate it, approve it,

condone it, or turn a blind eye." Id. (cleaned up). "An inmate's correspondence to a prison

administrator may thus establish a basis for personal liability under § 1983 where that

correspondence provides sufficient knowledge of a constitutional deprivation." Perez v. Fenoglio,

6 Plaintiff has sued all Defendants only in their individual, not official, capacities. Defendants Pfleeger and

Williams do not argue that they were not personally involved in the conditions of which Plaintiff complains.

792 F.3d 768, 781–82 (7th Cir. 2015). "Indeed, once an official is alerted to an excessive risk to

inmate safety or health through a prisoner's correspondence, 'refusal or declination to exercise the

authority of his or her office may reflect deliberate disregard.'" Id. at 782 (quoting Vance, 97 F.3d

at 993).

Defendants Reagle, Alsip, and Bolden note that although Plaintiff did file multiple

grievances related to his conditions of confinement in the fall of 2021, none of those grievances

were processed or passed along to higher-ups, so none of them had actual notice of any of Plaintiff's

complaints through those grievances. Be that as it may, Plaintiff has also designated as evidence a

letter written to Defendants Reagle and Alsip, dated September 13, 2021, complaining of his

conditions of confinement and sent outside of the formal IDOC grievance procedure. Dkt. 144-1,

p. 22-23. Defendants seem to imply that this letter was fabricated to satisfy the legal requirement

that Warden Reagle and Deputy Warden Alsip knew about Plaintiff's complaints about his

conditions of confinement. But Defendants have not attempted to argue that this letter would be

inadmissible at trial and thus should not be considered on summary judgment pursuant to Rule

56(c)(2) of the Federal Rules of Civil Procedure. The Court therefore will consider it for summary

judgment purposes. And after considering the letter, and in light of other evidence that the

conditions of which Plaintiff complained of in the letter continued unabated after it was sent, the

Court concludes there is a material issue of fact as to whether Defendants Reagle and Alsip

deliberately turned a blind eye to Plaintiff's alleged unconstitutional conditions of confinement.

Defendants Reagle and Alsip are not entitled to summary judgment on this basis.

That said, the September 13 letter was not addressed to Defendant Boldman. And there is

no evidence Plaintiff directly complained to Defendant Boldman about the conditions of

confinement at issue in this case, except for expressing tangential concern about Defendant

Boldman not wearing a mask once when he talked to Plaintiff about his missing legal materials.

There is no designated material evidence on which Defendant Boldman could be found to be

personally responsible for any of the confinement issues. Defendant Boldman, therefore, is entitled

to summary judgment as to all claims.

Before proceeding to the merits of Plaintiff's claims, the Court pauses to address Plaintiff's

repeated argument that Defendant Reagle advised Pendleton employees that they were free to

disregard inmates' constitutional rights when he told them: "IDOC is a fluid organization and often

we have to have policies that give a lot of lead [sic] way or have to remember that being ordered

to break policy does not invalidate an order, only violations of law or immoral orders can be

disobeyed." Dkt. 144-1, p. 198. The Court will attach no relevance to this statement and notes that

Plaintiff is misinterpreting it. Rather than giving guards free rein to ignore inmates' rights, the

statement emphasizes that guards should not obey any order from a superior that is immoral or

would violate an inmate's rights. IDOC policies are not "law" and do not create constitutional

rights. "Section 1983 protects against constitutional violations, not violations of departmental

regulation and practices." Est. of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir. 2017) (cleaned

up). If Defendant Reagle told Pendleton employees that they must obey orders, even if contrary to

an IDOC policy, he was not advising them to violate inmates' constitutional rights—in fact, just

the opposite.

C. Qualified Immunity

"[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)). "To overcome the defendant’s invocation of qualified immunity, [a 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

Cty., Ill., 705 F.3d 706, 713 (7th Cir. 2013). 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)). 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). "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, 583 U.S. at 64 (quoting Anderson, 483 U.S. at 641).

Although "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) (cleaned up). 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 v. Kallas, 936 F.3d 536, 546 (7th Cir. 2017)

(quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quotation marks omitted)). Qualified

immunity thus "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.

1. Construction Work

Defendants first argue that they are entitled to qualified immunity with respect to Plaintiff's

claim that the noise and air particulates from the construction project in G-house during the time

he was incarcerated there amounted to an unconstitutional condition of confinement. For purposes

of summary judgment, the Court accepts Plaintiff's representations that Defendants neither

provided ear plugs to inmates to help alleviate noise concerns nor screened off the construction

areas with plastic sheeting to help prevent air pollution from spreading, although Defendants claim

that both were done. The Court also accepts Plaintiff's representation that he did not have a face

mask to use until mid-November 2021.

With respect to construction activities in a prison, it is true that exposing inmates to a high

level of construction-related air pollution may amount to deliberate indifference. See Maus v.

Murphy, 29 Fed. App'x 365, 369 (7th Cir. 2002) (citing Helling v. McKinney, 509 U.S. 25, 35

(1993)). However, the Eighth Amendment does not require a prison to provide an environment

that is "'completely free from pollution or safety hazards . . . .'" Id. (quoting Carroll v. DeTella, 255

F.3d 470, 472 (7th Cir. 2001)). Moreover, it has been observed that "[r]emodeling and upkeep of

institutions and buildings, in and out of prison, is a fact of life that must be faced by most

individuals." Givens v. Jones, 900 F.2d 1229, 1234 (8th Cir. 1990).

In Givens, the Court held that a prisoner's claim of migraine headaches caused by noise

and fumes from ongoing construction work was insufficient to support an Eighth Amendment

deliberate indifference claim. Id. Even if the renovation work did inflict some pain, the work was

"legitimate," it did not deprive the prisoner of nighttime sleep, and there was a lack of evidence

that prison officials were acting with malicious intent or reckless disregard for the prisoner's well-

being. Id. And in Maus, the Court held, in reviewing a summary judgment ruling, that a prisoner

could not recover § 1983 damages based on allegations that poor air quality related to construction

work had caused his lung to collapse, because he "did not present evidence connecting lung

complications to any risks associated with exposure to lead paint, nor did he present evidence

addressing the causes of a collapsed lung." Maus, 29 Fed. App'x at 369.

As for claims of excessive noise in prisons generally, "incessant" noise may suffice to

support an Eighth Amendment conditions-of-confinement claim. See Antonelli v. Sheahan, 81 F.3d

1422, 1433 (7th Cir. 1996) (citing Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988)). But, to

succeed on such a claim, an inmate "must show that the risk of injury from the conditions to which

he was exposed was 'so grave that it violates contemporary standards of decency to expose anyone

unwillingly to such a risk.'" Whitney v. Wetzel, 649 Fed. App'x 123, 127 (3rd Cir. 2016) (quoting

Helling v. McKinney, 509 U.S. 25, 36 (1993)). "[S]peculative and unsupported assertions" by a

prisoner that he or she faced unconstitutionally-excessive levels of noise are insufficient. Lucien

v. Gramley, 99 F.3d 1142, 1996 WL 590539, at * 2 (7th Cir. 1996).

The Court concludes that Plaintiff has failed to designate sufficient evidence to show that

the construction work at Pendleton caused or threatened to cause a constitutionally-recognizable

injury to Plaintiff. As for his claim that the construction debris caused headaches and nosebleeds,

these are similar to the types of ailments that courts have frequently described as "not serious

enough to implicate the Eighth Amendment." Bates v. Sullivan, 6 F. App'x 425, 428 (7th Cir. 2001)

(breathing problems and headaches). See also Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.

1999) (breathing problems, chest pains, dizziness, sinus problems, headaches); Willis v. Pfister,

No. 18-CV-333, 2024 WL 216672, at *10 (N.D. Ill. Jan. 19, 2024) (migraine headaches).

It is true that in Board v. Farnham, 394 F.3d 469, 486–87 (7th Cir. 2005), evidence of

nosebleeds and respiratory problems caused by allegedly poor ventilation in a jail was sufficient

to survive summary judgment and proceed with Eighth Amendment deliberate indifference claims

against jail officials. But there also was clear evidence in that case that there was black mold and

fiberglass in the jail's duct system, and an expert had opined that this was a health hazard that

needed to be remediated. Id. Here, by contrast, we have only Plaintiff's conclusory statements

connecting his headaches and nosebleeds with the construction debris. Even if such conditions

might qualify as "serious" in another context, Plaintiff has not designated scientific or medical

evidence connecting them with the construction work, nor any evidence that the air quality in G-

house in fact was rendered unacceptable by the construction work. See Dixon v. Godinez, 114 F.3d

640, 645 (7th Cir. 1997) (holding defendants were entitled to summary judgment on inmate's claim

that poor air quality caused breathing problems where inmate "offered only conclusory allegations,

without backing from medical or scientific sources" in support of claim). Also, Plaintiff's medical

records from Pendleton during this time frame are not before the Court. "A plaintiff must meet a

motion for summary judgment with evidentiary materials that show there is a genuine issue for

trial." Estate of Simpson, 863 F.3d at 745. Plaintiff has failed to do so.

Regarding the construction noise, again Plaintiff has failed to designate evidence as to its

severity, aside from his own conclusory statements. Although he alleged that the construction work

often began at 6 or 6:30 in the morning, there is no evidence that any such work ever took place at

night, or how many hours per day it took place, or that it disturbed Plaintiff's sleep, aside from

possibly forcing him to wake up earlier than he might have wanted. Plaintiff cannot establish that

the construction noise was unconstitutionally loud on the basis of such evidence. See Hoeft v.

Kasten, 393 Fed. App'x 394, 396 (7th Cir. 2010) (holding inmate's "bare-bones affidavit" that noise

was "excessively loud and almost constant" was insufficient to survive summary judgment and

"would not allow a jury to conclude that he was denied the minimal civilized measure of life's

necessities") (cleaned up).

For these reasons, Plaintiff has failed to meet step one of defeating Defendants' qualified

immunity defense as to the construction work: he has not shown a constitutional violation because

of it. He also would fail step two, whether Defendants violated any "clearly established right." For

qualified immunity purposes, the baseline rule is that renovation or construction work in a prison

is a mere annoyance and prisoners can be subjected to accompanying noise and debris associated

with such work, unless the noise and debris rises to such a level that either the air quality or noise

risks serious harm to the inmates. The Court is unaware of, and Plaintiff has not cited, any cases

holding that prison officials must provide ear plugs or masks to inmates who are in proximity to

construction work or that the construction site must be blocked off with plastic sheeting. Rather,

what accommodations must be made to account for construction in a prison is a fact-specific

determination that requires a balancing of multiple factors.

Chief among those factors is the risk presented to inmates' health and safety by the

construction work. "The Eighth Amendment demands that officials ensure 'reasonable safety,' not

that they protect against all risks." Estate of Simpson, 863 F.3d at 746. Plaintiff cannot show that

Defendants violated any "clearly established right" with regard to how they ensured inmates' safety

during the construction work in G-house.

2. COVID Precautions

Defendants also argue they are entitled to qualified immunity regarding Plaintiff's claim

that Pendleton had inadequate COVID precautions in place during the time he was in G-house, or

that Defendants ignored or violated what precautions should have been in place. Although COVID

was a new infectious disease in 2020, it was less so by late summer 2021. It is clearly established

that prison officials may not "be deliberately indifferent to the exposure of inmates to a serious,

communicable disease" under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33

(1993). The duty to protect inmates from needless exposure to infectious disease "need not be

litigated and then established disease by disease[.]" Estate of Clark v. Walker, 865 F.3d 544, 553

(7th Cir. 2017).

Unlike many COVID-in-prison or jail cases that have been litigated over the past several

years, there is virtually no evidence in the record in this case as to what Pendleton was doing at

the time to ameliorate the spread of COVID, whether such policies comported with the most up-

to-date public health guidelines, whether Pendleton was even complying with its own policies, and

so forth. Cf. Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (protective measures included

screening, quarantining sick inmates, limiting group gatherings, screening inmates and staff,

enhanced cleaning measures, and providing masks to inmates); Valentine v. Collier, 956 F.3d 797,

802 (5th Cir. 2020) (listing similar measures); and Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir.

2020) (listing similar measures). Notably, in Griffin v. Knight, 1:21-cv-00038-TWP-TAB, 2023

WL 1363317 at * 3 (S.D. Ind. Jan. 31, 2023), summary judgment was denied because there was a

material question of fact on whether defendants were deliberately indifferent to the risk of COVID

inmates faced where defendants only relied on plaintiff's complaint, designated no evidence of

their own, and "failed to describe any other affirmative steps they took to protect inmates from

contracting COVID-19".

Here, similar to Griffin, the Defendants provide little evidence of what COVID policies

and procedures were in place at Pendleton from August to December 2021. To the extent there was

a Pendleton policy of providing new masks to inmates at least monthly, Plaintiff denies that this

policy was complied with until at least mid-November 2021. There also is some evidence of IDOC

masking requirements for staff, but Plaintiff asserts this was regularly disregarded. There is no

evidence of testing or screening requirements for inmates or guards, no evidence of vaccinations

(which were available by that time), and no evidence of quarantining of sick inmates, for example.

The Court declines to find that by late summer of 2021, it would have been objectively reasonable

to essentially do nothing to address COVID in prisons. On the other hand, this Court held in Griffin

that the defendants nonetheless were entitled to qualified immunity with respect to their response,

or lack thereof, to COVID. Id. at *4.

Moreover, there was evidence in Griffin that the plaintiff may in fact have contracted

COVID. Id. at *2. The Court concludes that in this case, there is a lack of evidence on the subjective

component of Plaintiff's COVID precaution claims. That is, nothing in the record suggests that

either (1) the COVID infection rate in Pendleton G-house was abnormally high in the late summer

and fall of 2021, as compared to either the rest of Pendleton, or prisons generally (where social

distancing is difficult), or even to the population of Indiana or the United States at large during

that period; or (2) that Plaintiff himself ever contracted COVID. In other words, even if objectively

speaking Pendleton officials could have been doing more with respect to COVID precautions,

subjectively speaking there is nothing to indicate that Pendleton officials were deliberately

indifferent to prisoners' or Plaintiff's health because of, for example, an abnormally-high COVID

infection rate or because Plaintiff himself contracted it.

It is not clear that an inmate must actually contract COVID to state a conditions-of-

confinement claim based on a prison's failure to institute adequate COVID precautions. But, even

if "actual injury isn't a prerequisite for an Eighth Amendment claim, the absence of any cognizable

harm certainly suggests an absence of deliberate indifference." Chapa v. Kenton Cnty. Judge Exec.,

No. CV 21-22-DLB-MAS, 2023 WL 4553602, at *8 (E.D. Ky. July 14, 2023), appeal dismissed.

See also Dykes-Bey v. Washington, 2021 WL 7540173 at *3 (6th Cir. Oct. 14, 2021) (upholding

PLRA dismissal, for lack of sufficient allegation of subjective prong on deliberate indifference

claim, where the complaint did not "allege that the defendants knowingly housed COVID-19

positive inmates alongside any plaintiff, or even that a COVID-19 outbreak occurred"); Pugh v.

Contra Costa Cnty., No. 22-CV-01487-JSW, 2023 WL 8481808 at *3 (N.D. Cal. Dec. 7, 2023)

(noting there was a triable issue of fact of whether plaintiff-inmate was injured by defendants'

alleged deliberate indifference regarding COVID precautions, where defendants argued plaintiff

never tested positive but plaintiff claimed he developed COVID symptoms).

The Court concludes Defendants are entitled to summary judgment with respect to

Plaintiff's COVID claims, based on an absence of evidence suggesting that Defendants were

subjectively deliberately indifferent to Plaintiff's health. Thus, there is no need to assess whether

Defendants are entitled to qualified immunity because Plaintiff has not shown the existence of a

constitutional violation.

D. Other Claims

1. Lack of Mattress/Bedding

The Court now turns to Plaintiff's claims for which the Defendants do not argue qualified

immunity. The first such claim is that he was subject to an unconstitutional deprivation when

(according to his deposition testimony) he did not receive a mattress in his G-house cell for

approximately 32 hours after being moved to it, and having to sleep on the bare metal frame in the

meantime. He also complains about not receiving a brand-new mattress and bedding when it did

arrive, contending IDOC policy required them to be new. And, he contends that the bedding he did

receive did not get laundered for weeks at a time.

As a matter of law, Plaintiff's claims regarding his mattress and bedding do not amount to

an Eighth Amendment violation. The Constitution "'does not mandate comfortable prisons' . . . ."

Farmer, 511 U.S. at 832 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). Rather, all that

is required is "reasonably adequate ventilation, sanitation, bedding, hygienic materials, and

utilities." Thomas, 2 F.4th at 720 (cleaned up). Thirty-two hours without a mattress is not

unreasonable. Stephens v. Cottey, 145 Fed. App'x 179, 181 (7th Cir. 2005) (no Eighth Amendment

violation where plaintiff alleged being denied a mattress for three days). As for not getting a new

mattress and bedding, even if IDOC policy supposedly required it, the violation of an institutional

policy does not amount to an Eighth Amendment violation. See Estate of Simpson, 863 F.3d at 746.

The mattress was cleaned with germicide upon delivery at Plaintiff's request. Even if the mattress

was not as clean as Plaintiff would have liked, and even if he would have preferred that the bedding

be cleaned more regularly, he has failed to designate evidence that either the mattress or bedding

was unsanitary and unacceptable for human use. Defendants are entitled to summary judgment

with respect to Plaintiff's mattress and bedding claims.

2. Lack of Indoor Clothing

Next, Plaintiff contends he was not supplied with adequate clothing after his move to

G-house. Again, part of his claim is that IDOC policy required him to be provided with brand new

clothing; again, that argument fails to establish an Eighth Amendment violation. See id. A lack of

adequate clothing for a prisoner can, of course, violate the Eighth Amendment. See Gillis v.

Litscher, 458 F.3d 488, 493 (7th Cir. 2006). Plaintiff acknowledged in his deposition that he did in

fact always have clothing, except when showering. He kept the clothing he had on when moved to

G-house and received clean (but used) clothing on each shower day. He has presented no evidence

that he lacked adequate clothing for the temperature and conditions inside G-house. Defendants

are entitled to summary judgment with respect to Plaintiff's indoor clothing claims.

3. Lack of Coats and Hats for Outdoor Recreation

Separate from the indoor clothing issue, Plaintiff contends he and other inmates were

deliberately deprived of coats and hats to use for outdoor recreation during October and November

2021, and alleges that some days in those months were simply too cold to go outside without such

items. Even so, Plaintiff does not allege that he or any other inmate was forced to be outside in the

cold "for long periods of time or that he suffered anything more than the usual discomforts of

winter." Mays v. Springborn, 575 F.3d 643, 648 (7th Cir. 2009) (rejecting Eighth Amendment claim

based on alleged failure to provide warm clothing during winter).

If Plaintiff is suggesting that Pendleton staff wanted to discourage inmates from taking

outdoor recreation, he has not argued or alleged that inmates were deprived of all recreation

altogether, or specified precisely how many times in October and November it was impossible to

enjoy outdoor recreation without coats and hats. This is insufficient to proceed on an Eighth

Amendment claim. See Vasquez v. Braemer, 586 Fed. App'x 224, 228 (7th Cir. 2014) (four hours

per week of outdoor recreation did not violate Eighth Amendment); Harris v. Fleming, 839 F.2d

1232, 1236 (7th Cir. 1988) (indoor recreation only did not violate Eighth Amendment); Bailey v.

Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (one hour per week of outdoor recreation did not

violate Eighth Amendment). Defendants are entitled to summary judgment with respect to

Plaintiff's outdoor clothing claims.

4. Unclean Cell and Showers

The Court now addresses together Plaintiff's claims that Defendants were deliberately

indifferent to unsanitary conditions in his cell and in the G-house showers. It is true that inmates

cannot expect the cleanliness of a prison to match that of a "good hotel." See Harris v. Fleming,

839 F.2d 1232, 1235 (7th Cir. 1988). On the other hand, prisoners are entitled to at least minimally-

sanitary living conditions. See Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989). The cleanliness

(or lack thereof) of a prison's living quarters may be actionable if the conditions are "unusually

dirty or unhealthy . . . ." Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994). When considering

a claim such as Plaintiff's, the degree of alleged filth must be balanced against the time the inmate

was forced to endure it. See McBride v. Deer, 240 F.3d 1287, 1291–92 (10th Cir. 2001). "Not

surprisingly, human waste has been considered particularly offensive so that courts have been

especially cautious about condoning conditions that include an inmate's proximity to it." Id.

(cleaned up).

In his deposition, Plaintiff described the condition of his G-house cell when he arrived as

"nasty," "gross," and "filthy. It had urine dried on the floors, on the walls around the toilet. There

was dry feces around the toilet, on the rims of the toilet, a lot of trash and debris in it." Dkt. 130-

1, p. 28-29. He also said that food waste was allowed to accumulate on the floor over several

weeks. And he testified that although he asked Defendant Williams to bring him cleaning supplies

shortly after he got to the cell, he received no such supplies for at least 60 days after being sent to

G-house.

Plaintiff also stated in his deposition that the showers in G-house "were very nasty" and

"disgusting." Id. at 49. Specifically, he claimed that they smelled like urine, had scum build-up on

the walls, had excess soap and hair on the floor, and were rarely cleaned. Plaintiff also

characterized Defendant Alsip's statement in an interrogatory that the showers were cleaned

"almost every day" as "the biggest lie he ever told." Id. at 51.

The Court concludes that these facts as described by Plaintiff are enough to allow his claims

related to the cleanliness of his cell and the showers to survive summary judgment. They raise

genuine issues of material fact as to whether the Defendants were deliberately indifferent to

constitutionally inadequate sanitation. In McBride, the Court found sufficient allegations of

unsanitary prison conditions where a prisoner was left in a feces-covered cell for three days before

it was cleaned. 240 F.3d at 1291. It is not clear that Plaintiff's cell is claimed to be as dirty as in

McBride, though it comes close. And, Plaintiff has alleged a significant presence of the previous

occupant's urine and feces in his cell and that he was forced to endure it for much longer than the

inmate in McBride.

Plaintiff's allegations as to the showers present a slightly closer call, as the conditions are

not as heinous as what has been alleged as to Plaintiff's cell, and he was not forced to be in them

nearly constantly. Still, the Court concludes there is a question of fact on this issue, particularly

given Plaintiff's allegation as to how infrequently the showers were cleaned, directly contrary to

Deputy Warden Alsip's description. The Court also deems it crucial that given the allegations of

how filthy Plaintiff's cell was, it would have been especially important to have a sanitary shower

area to use. See Coleman v. Dart, No. 17-C-2460, 2019 WL 670248 at ** 3, 9 (N.D. Ill. Feb. 19,

2019) (denying summary judgment on Eighth Amendment claims where jail inmate alleged that

shower was "very nasty, dirty, and unclean," that it had not been "power washed at all," and that

"[t]here is large amounts of dirt[] that comes off of inmates bod[ie]s that is everywhere . . . ."

IV. Conclusion

The Defendants' motion for summary judgment, dkt. [129], is granted in part and denied

in part. No evidence supports any claim against Defendant Boldman going forward, and all claims

against him are dismissed. The clerk is directed to terminate Defendant Boldman as a defendant

on the docket.

As to Defendants Reagle, Alsip, Pfleeger, and Williams, summary judgment is granted as

to all claims except those relating to the cleanliness of Plaintiff's cell and the showers in Pendleton's

G-house during the time Plaintiff was housed there. The cleanliness claims will be resolved by a

settlement or trial.

The Court now sua sponte reconsiders Plaintiff's motion for counsel, dkt. 83, and will

attempt to recruit counsel to represent Plaintiff through final judgment. However, the clerk is

directed to send Plaintiff a form motion for assistance with recruiting counsel. Because this form

contains the terms of accepting counsel, Plaintiff must complete the form and return it no later than

April 1, 2024, if he seeks the Court's assistance. Plaintiff's failure to timely complete and return

the form will be construed as abandonment of his request for counsel. The Magistrate Judge is

requested to set the matter for a telephonic status conference once recruited counsel has appeared

or if Plaintiff abandons his request for counsel.

IT IS SO ORDERED.

Date:

3/5/2024 Poth Gaus Baler

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

23

Distribution:

All ECF-registered counsel of record via email

RODNEY S. PERRY, SR.

974441

INDIANA STATE PRISON

INDIANA STATE PRISON

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