Brown v. Hein

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

______________________________________________________________________________

PIERRE CARDELL BROWN,

Plaintiff,

v. Case No. 21-cv-21-pp

PAUL HEIN,

and MICHAEL STEVENS,

Defendants.

______________________________________________________________________________

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

(DKT. NO. 37) AND DISMISSING CASE

______________________________________________________________________________

Plaintiff Pierre Cardell Brown, who is confined at the Minnesota

Correctional Facility in Bayport, Minnesota and representing himself, filed this

case alleging violations of his constitutional rights. Dkt. No. 1. The court

allowed the plaintiff to proceed on a constitutional claim against defendants

Paul Hein and Michael Stevens based on allegations that they disregarded the

plaintiff’s complaints that the cell in which he had been placed the at the

Milwaukee County Jail was caked with blood and smelled like urine. Dkt. No.

7. On October 4, 2021, the defendants filed a motion for summary judgment

and supporting brief, arguing that the plaintiff could not show that they

violated his constitutional rights. Dkt. Nos. 37, 38.

On October 5, 2021, the court ordered the plaintiff to file his response to

the defendants’ motion in time for the court to receive it by November 3, 2021.

Dkt. No. 46. The court advised the plaintiff that if he failed to file his response

by the deadline, the court had the authority to treat the defendants’ motion as

unopposed, accept all facts asserted by the defendants as undisputed and

decide the motion based only on the arguments in the defendants’ brief,

without any input from the plaintiff. Id. at 2. The November 3, 2021 deadline

passed, and the court did not receive a response to the defendants’ motion; the

court has received nothing from the plaintiff since September of this year, when

it received a brief in opposition to the defendants’ motion to dismiss (Dkt. No.

38). The court will treat the defendants’ summary judgment motion as

unopposed, accept the defendants’ facts as undisputed and decide the motion

without a response from the plaintiff.

A. Standard of Review

“The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.

2011). “Material facts” are those under the applicable substantive law that

“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A

dispute over “material fact” is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

B. Facts

The plaintiff arrived at the Milwaukee County Jail on August 1, 2020 and

was assigned to Unit 5-B Cell #35. Dkt. No. 39 at ¶1. The biohazard team

cleaned Cell #35 at “2150” that day, to address concerns voiced by the plaintiff

about the cleanliness of the cell. Id. at ¶2. On August 9, 2020, the plaintiff filed

a Request and Grievance which stated that he “been complaining about

someone piss (urine) in the vent of [his] cell since [he] came in there” and

requested that he be moved to another cell. Id. at ¶3. In response, Lieutenant

Hein provided the plaintiff with cleaning supplies but denied the plaintiff’s

request to move to a different cell. Dkt. No. 1 at 3; Dkt. No. 39 at ¶4. The

biohazard team cleaned the plaintiff’s cell again on August 11, 2020 to address

his concerns. Id. at ¶ 4-5.

The plaintiff filed another Request and Grievance on August 14, 2020, in

which he stated that he had “been in this room that still got blood and

someone else’s urine in the vents.” Id. at ¶6. That same day, the biohazard

team again cleaned the plaintiff’s cell. Id. at ¶7. On August 15, 2020, the

plaintiff was transferred from the jail to a Minnesota correctional facility. Id. at

¶8.

In the plaintiff’s responses to Defendants’ First Set of Requests for

Admission, Written Interrogatories, and Requests for Production, he admitted

that he never sought medical or psychological treatment for any alleged injuries

from his time at the jail. Id. at ¶9. The plaintiff also admitted that neither Hein

nor Lieutenant Stevens ignored his requests and concerns about the cell. Id. at

¶10. Other than the plaintiff, no inmate filed any written Request and

Grievance regarding the alleged smell of urine in the cell or the alleged blood in

the cell. Id. at ¶11.

The plaintiff was convicted of two counts of second-degree reckless

homicide on December 16, 2015 and sentenced on March 4, 2016. Id. at 12.

Wisconsin online court records show that he was sentenced to a term of

seventeen years in state prison and ten years extended supervision for each

count. See wcca.wicourts.gov (last visited Nov. 11, 2021).

C. Discussion

When the court screened the complaint, it could not determine whether

the plaintiff was a pretrial detainee or a convicted prisoner during the relevant

period. Dkt. No. 7 at 2. The court explained in the screening order that the

plaintiff had stated claims for relief under both the Fourteenth Amendment

(applicable to pretrial detainees) and the Eighth Amendment (applicable to

convicted prisoners), and that the parties should explain which constitutional

standard they believed applied to the plaintiff’s claims as the case progressed.

Id. In support of their motion for summary judgment, the defendants first

clarify that the plaintiff was a convicted, sentenced prisoner during his

confinement at the jail and that his constitutional claim falls under the Eighth

Amendment. Dkt. No. 38 at 6. The court agrees, and it will apply the Eighth

Amendment standard. See Helling v. McKinney, 509 U.S. 25, 31-32 (1993);

Lewis v. Downey, 581 F.3d 467, 474 (7th Cir. 2009).

The defendants contend that the plaintiff’s conditions of confinement at

the jail did not violate the Eighth Amendment and that they did not act with

deliberate indifference to the cell conditions. Dkt. No. 38 at 7-13. To establish a

constitutional violation with respect to prison living conditions, an inmate must

be able to demonstrate that: (1) the conditions were so adverse that they

deprived him “of the minimal civilized measure of life’s necessities” (the claim’s

objective prong) and (2) the defendants acted with deliberate indifference with

respect to the conditions (the claim’s subjective prong). Townsend v. Fuchs,

522 F.3d 765, 773 (7th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 832,

834 (1994)). The necessities of life include “reasonably adequate ventilation,

sanitation, bedding, hygienic materials, and utilities.” Gray v. Hardy, 826 F.3d

1000, 1005 (7th Cir. 2016) (quoting Lewis v. Lane, 816 F.2d 1165, 1171 (7th

Cir. 1987)). Although “extreme deprivations are required,” Delaney v. DeTella,

256 F.3d 679, 683 (7th Cir. 2001), and “routine discomfort[s]” do not suffice,

Hudson v. McMillian, 503 U.S. 1, 9 (1992), “[s]ome conditions . . . may

establish an Eighth Amendment violation in combination when each alone

would not do so,” and other conditions that may not be sufficiently serious for

a short period of time, “can become an Eighth Amendment violation . . . if

endured over a significant time.” Gray, 826 F.3d at 1005 (citations omitted).

“Deliberate indifference . . . means that the official knew that the inmate faced

a substantial risk of serious harm, and yet disregarded that risk by failing to

take reasonable measures to address it.” Townsend, 522 F.3d at 773.

Establishing that an official acted negligently is not sufficient. “Instead, the

inmate must show that the official received information from which the

inference could be drawn that a substantial risk existed, and that the official

actually drew the inference.” Id.

The plaintiff alleges that his cell smelled like urine and that there was

blood caked on the cell walls. Together, these conditions could support an

Eighth Amendment claim. See Thomas v. Blackard, 2 F.4th 716, 720 (7th Cir.

2021) (citing Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (collecting

cases that clearly establish that holding an inmate in cell smeared with feces

and blood, and lacking running water or a mattress, creates an excessive risk

to health and objectively amounts to the deprivation of humane conditions). As

the defendants point out, however, the biohazard team cleaned the plaintiff’s

cell three times during his fifteen-day stay there and jail staff provided the

plaintiff with cleaning supplies. Based on the biohazard team’s three separate

cleanings of the plaintiff’s cell as well as the plaintiff’s access to cleaning

supplies to clean the cell on his own, the court cannot conclude that the

conditions in his cell were objectively unreasonable. The record lacks evidence

that the defendants acted with deliberate indifference by disregarding the

plaintiff’s complaints about his cell. See Thomas, 2 F.4th at 721 (officers acted

reasonably in response to plaintiff’s concerns about his cell by providing him

with tools to address his complaints).

A reasonable factfinder could not conclude that the defendants violated

the plaintiff’s constitutional rights. The court will grant the defendants’ motion

for summary judgment and dismiss this case.

D. Conclusion

The court GRANTS the defendant’s motion for summary judgment. Dkt.

No. 37.

The court DISMISSES this case. The clerk will enter judgment

accordingly.

This order and the judgment to follow are final. A dissatisfied party may

appeal this court’s decision to the Court of Appeals for the Seventh Circuit by

filing in this court a notice of appeal within thirty days of the entry of

judgment. See Federal Rule of Appellate Procedure 3, 4. This court may extend

this deadline if a party timely requests an extension and shows good cause or

excusable neglect for not being able to meet the thirty-day deadline. See

Federal Rule of Appellate Procedure 4(a)(5)(A).

Under limited circumstances, a party may ask this court to alter or

amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief

from judgment under Federal Rule of Civil Procedure 60(b). Any motion under

Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight days of

the entry of judgment. The court cannot extend this deadline. See Federal Rule

of Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure

60(b) must be filed within a reasonable time, generally no more than one year

after the entry of the judgment. The court cannot extend this deadline. See

Federal Rule of Civil Procedure 6(b)(2).

The court expects parties to closely review all applicable rules and

determine, what, if any, further action is appropriate in a case.

Dated in Milwaukee, Wisconsin this 30th day of November, 2021.

BY THE COURT:

Z PAMELA PEPPER

Chief United States District Judge