Self, Carl v. Bates, Kelsey

FOR THE WESTERN DISTRICT OF WISCONSIN

CARL E. SELF and DAMEN OLDS,

Plaintiffs, OPINION AND ORDER

v.

23-cv-374-wmc

WILLIAM OLSON, KELSEY BATES,

EDWARD KOLBA, BRENDAN INGENTHRON,

and BRANDA MULLER,1

Defendants.

Plaintiffs Carl Self and Damen Olds, who are representing themselves, are proceeding

on Eighth Amendment conditions of confinement claims arising out of the correctional staff at

New Lisbon Correctional Institution allegedly disregarding their exposure to a clogged, flooded

toilet between March 23 and 29, 2023. Currently pending before the court is defendants’

motion for summary judgment on the merits of plaintiffs’ claims, or alternatively, on the

grounds of qualified immunity. (Dkt. #35.) Defendants’ motion will be granted in part and

denied in part.

For the reasons discussed below, the court concludes that no reasonable jury could find

that defendants William Olson, Brendan Ingenthron, and Branda Muller unreasonably

responded to plaintiffs’ conditions of confinement under the Eighth Amendment’s high

standard for such claims, even drawing all reasonable inferences and viewing the evidence in a

light most favorable to plaintiffs. However, for the reasons also discussed below, the court

concludes that disputed issues of fact preclude the entry of summary judgment either on the

merits or qualified immunity grounds in favor of defendants Kelsey Bates and Edward Kolba

1 The court has revised the caption to add defendants’ first names and correct the spelling of their

surnames.

judgment will be granted, while this case will proceed to trial on plaintiffs’ claims against

defendants Bates and Kolba.

UNDISPUTED FACTS2

A. Background

At all times relevant to this lawsuit, plaintiffs Carl Self and Damen Olds were housed

at the New Lisbon Correctional Institution, where defendants all worked. Brendan Ingenthron

was the Corrections Program Supervisor or Unit Manager; William Olson was a Correctional

Sergeant; Edward Kolba was a Correctional Officer; Kelsey Bates was a Sergeant; and Branda

Muller served as an Inmate Complaint Examiner. Further, the parties do not dispute that

Olson was on duty in the C-Unit until 2:00 p.m. on March 23, 2023; Bates worked on the

C-Unit on March 23 and again on March 27, 28, and 31, 2023; and Kolba worked at the

institution on March 25-26 and 29, 2023. (See dkt. #41-1.)

On March 23, 2023, plaintiffs were housed together in Cell 64 on the C-Unit, which

has no community bathrooms. Plaintiffs aver that the toilet in their cell became clogged on

March 23, and even though they asked every correctional officer they saw to help, their toilet

remained clogged for six straight days between March 23 and 29, 2023. However, maintenance

records show that staff did not place a work order for plaintiffs’ toilet in either March or April

2023.

2 Unless otherwise indicated, the following facts are material and undisputed. The court has drawn

these facts from the parties’ proposed findings, as well as the underlying evidentiary record where

appropriate, and viewed them and all reasonable inferences in a light most favorable to plaintiffs.

See Miller v. Gonzalez, 761 F.3d 822, 877 (7th Cir. 2014) (At summary judgment, the court must

“construe the record in the light most favorable to the nonmovant and avoid the temptation to

decide which party’s version of the facts is more likely true.”).

be unclogged by releasing what is known as “the trap.” Plaintiffs aver that they did everything

to try to get staff to release the trap for their cell, but this did not occur until March 29, 2023,

when Officer Uniske (not a defendant) responded to Self’s requests for help with the clogged

toilet.

However, defendant Ingenthron, who is responsible for all activities on the unit, avers

that: the trap is supposed to be released by a plumber; and even though some choose to do so,

releasing a trap to unclog a toilet is not part of the job description for security staff, nor are

they expected to perform this task. Specifically, the parties dispute what options were available

to plaintiffs while their toilet was clogged. Again, according to Unit Manager Ingenthron, an

inmate without a working toilet can be: (1) moved to another cell, if one is available; (2)

approved to use the toilet in another cell; or (3) escorted to another unit to use the bathroom.

In contrast, plaintiffs aver that defendant Kolba and another non-defendant, correctional

officer told Self that he would receive a conduct report if he tried to enter another cell to use

the bathroom, so plaintiffs were forced to sneak into other cells to relieve themselves.

Defendants also appear to concede that it is possible that plaintiffs could receive a conduct

report and risk segregation if they were caught entering another inmate’s cell.

Nonetheless, defendants aver that plaintiffs were free to leave their cell during dayroom

hours3 and had access to a bathroom in the recreation area, as well as in the K Building where

the health services unit (“HSU”), education facility, library, intake, and property office are

located. While plaintiffs admit that they were able to use the bathroom in recreation once each

day, they represent in response to defendants’ proposed findings that: an inmate cannot just

3 Dayroom hours are 7:45 a.m. to 11:00 a.m.; 12:40 p.m. to 4:30 p.m.; 6:10 p.m. to 9:00 p.m.; and

permission to use a bathroom in the K Building because he “is known to retaliate.” (Dkt. #45,

at ¶¶ 61 and 63.)

B. Timing of Defendants’ Alleged Knowledge of Clogged Toilet

1. Defendants Olson and Bates (March 23, 2023)

The parties dispute whether plaintiffs told any of the defendants about their clogged

toilet on the morning of March 23, 2023. Plaintiff Olds avers that he went to the officers’

station on the morning of March 23, at which time he informed defendant Olson that his toilet

was clogged, and Olson responded by giving him a plunger while promising to put in a work

order, which he did not do. Plaintiffs further aver that when the plunger did not resolve the

problem, they both returned to the officers’ station, where defendant Olson informed Olds that

there was no other plunger, and defendant Bates told plaintiff Self that she would follow up

with a work order, which she also did not do. In addition, Olds avers that he returned to the

officers’ station again later that evening to complain to an unidentified staff member about the

clogged toilet and was given a different plunger, which also did not work. For their part, Olson

and Bates4 deny being made aware of any issues with plaintiffs’ toilet on March 23, 2023.

2. Defendant Kolba (March 25, 2023)

On March 25, 2023, Correctional Officer Kolba and another officer were in the officers’

station in C-Unit when plaintiff Self again asked for a plunger.5 While Kolba gave Self a

4 The parties also dispute whether Sergeant Bates unsuccessfully attempted to unclog plaintiffs’

toilet by cleaning the trap on a later date, March 31, 2024, although she wrote a work order at that

time. However, that later incident is not the subject of the claims at issue in this case, which relates

solely to the allegedly consistently clogged toilet between March 23 and 29, 2023.

5 Plaintiffs initially thought this other officer was Sergeant Bates, but Self now admits confusing

that there were no other plungers and there was nothing more he could do if a work order had

already been placed. Here, too, the parties dispute whether any further communications took

place between Self and Kolba. Self says that Kolba and an unidentified officer laughed about

the plunger not working, since it was for sinks. Still, Self also says that he informed both

officers that his toilet had been clogged and full of feces since March 23, 2023. However,

Kolba avers that he was not aware of any urgent situation involving plaintiffs’ toilet, had

contacted other housing units to locate a different plunger, but was unable to find one. Kolba

also says that he notified a “sergeant” of the issue prior to his shift change.6

3. Defendants Ingenthron and Muller

While in the C-Unit yard on or around March 27, 2023, Self also asked his unit

supervisor, defendant Ingenthron, if he could discuss an issue with him, but Ingenthron waived

him off and walked away. Self and Olds then submitted separate inmate complaints about

staff ignoring their clogged toilet since March 23. While plaintiffs’ inmate complaint forms

were dated March 28, 2023, and stamped as received on March 30, 2023, plaintiffs assert that

video footage recently identified by defendants will show that Inmate Complaint Examiner

Muller received the complaints directly from plaintiffs on the C-Unit on the morning of March

28, 2023.7

6 There is no evidence identifying who this sergeant may have been.

7 On December 9, 2024, plaintiffs informed the court that they had not yet received access to this

footage (dkt. #54), so the court ordered briefing on the matter, then requested that additional

information be provided to facilitate the court’s ruling on this discovery dispute by March 13, 2025

complaints on March 30, asking for a status report and whether maintenance had received a

work order. As a result, the parties dispute when Ingenthron first learned about plaintiffs’

clogged toilet. Ingenthron avers that Muller’s email was the first he heard of plaintiffs having

a clogged toilet, while Self has submitted a copy of an information request to Ingenthron that

he dated March 28, 2023, although that document is not stamped “received” or otherwise

acknowledged by prison staff, much less by Ingenthron. (See dkt. #44-17.) Further,

Ingenthron avers that he saves all information requests from inmates and did not receive one

from Self or Olds between March 23 and April 1, 2023. Finally, after confirming with staff

that the toilet issue had been resolved, Ingenthron avers that he called one of the plaintiffs into

his office to confirm that the toilet issue was resolved, then informed ICE Muller on March 29

that the toilet had been fixed.

After Muller received Ingenthron’s response, she provided Self and Olds with an ICE

Return Letter stating that she was rejecting the complaints because they had not first attempted

to resolve the issue by filing an information request with Unit Manager Ingenthron or the

Building and Grounds Superintendent. While there is no policy requiring plaintiffs to contact

either the unit manager or maintenance about a clogged toilet, Self followed Muller’s directions

and sent Ingenthron an information request on April 8, 2023, who replied that Ingenthron

told him there was no need to bother maintenance and no further action was needed because

the issue had been resolved. Similarly, Olds submitted an information request about the toilet

to Ingenthron on April 2, 2023, who responded the next day that the issue had been resolved

on March 29, 2023.

Summary judgment is appropriate if the moving party 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). If the moving party meets this burden, then the non-moving party must

provide evidence “on which the jury could reasonably find for the nonmoving party” to survive

summary judgment. Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 406-407 (7th Cir.

2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In deciding whether

to grant summary judgment, the court views all facts and draws all inferences in the light most

favorable to the nonmoving party. Anderson, 477 U.S. at 255.

Generally, a court also construes the filings of unrepresented parties like plaintiffs

generously. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (noting that courts

“construe pro se filings liberally”). However, the Seventh Circuit has repeatedly referred to

summary judgment as the “put up or shut up” moment for parties seeking to take their claims

to trial, even for pro se litigants. Johnson v. Cambridge Indus. Inc., 325 F.3d 892, 901 (7th Cir.

2003) (citation omitted). Specifically, plaintiffs must “do more than simply show that there

is some metaphysical doubt as to the material facts”; they must respond to defendants’ showing

of a lack of material disputes of fact by designating specific facts in affidavits, depositions,

answers to interrogatories or admissions that establish a genuine, triable issue. Anderson, 477

U.S. at 256-57, 261. And because those facts must be admissible at trial, plaintiffs may not

rely on inadmissible hearsay, speculation, or conclusory allegations to defeat summary

judgment. See Prude v. Meli, 76 F.4th 648, 661 (7th Cir. 2023); Gorbitz v. Corvilla, Inc., 196

F.3d 879, 882 (7th Cir. 1999). Finally, a factual dispute can preclude summary judgment only

if the facts “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S.

at 248.

flooding toilet containing human waste for six days. The Eighth Amendment guarantees

prisoners humane conditions of confinement for their health and safety. Rice ex rel. Rice v. Corr.

Med. Serv’s, 675 F.3d 650, 664 (7th Cir. 2012). For example, prisoners must receive adequate

food, clothing, and shelter. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A claim that a

prisoner’s conditions of confinement violate the Eighth Amendment requires the prisoner to

prove two things: (1) the adverse condition is sufficiently serious to result in “the denial of the

minimal civilized measure of life's necessities”; and (2) prison officials have consciously

disregarded that condition. Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (quoting

Farmer, 511 U.S. at 834); Rice, 675 F.3d at 664-65. However, a plaintiff “must do more than

demonstrate a triable issue of fact with respect to the conditions he faces; he must also show

that he suffered some cognizable harm from the overall lack of a sanitary environment, and

that the [prison officials’] deliberate indifference caused that harm.” Gray, 826 F.3d at 1006.

Even if prison officials violate the Constitution, they are entitled to qualified immunity

absent proof of a violation of clearly established law. Tousis v. Billiot, 84 F.4th 692, 698 (7th

Cir. 2023). In other words, if the law was not so clear at the time of the alleged violation that

every reasonable official would understand that their conduct was unconstitutional, the official

is qualifiably immune. Id. Generally, plaintiffs can prove a violation of clearly established law

in one of three ways: (1) point to a closely analogous, binding case that established a right to

be free from the type of action the defendants performed; (2) identify a clear trend in the case

law showing that the recognition of the right by controlling precedent is merely a question of

time; or (3) show that the defendants’ conduct was “so egregious and unreasonable that no

reasonable official could have thought he was acting lawfully.” Stockton v. Milwaukee Cnty., 44

F.4th 605, 620-21 (7th Cir. 2022) (citations omitted). Even then, the Seventh Circuit has

cases where material facts are best understood and decided in the context of a full trial of the

evidence. E.g., Davis v. Allen, 112 F.4th 487, 494 (7th Cir. 2024) (“It is not until those facts

[relevant to an excessive force claim] are resolved by a jury are we are able to address the merits

of the qualified immunity question.”); Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002)

(“If there are genuine issues of fact concerning th[e] elements [of an Eighth Amendment

deliberate indifference claim], a defendant may not avoid trial on the grounds of qualified

immunity.”).

Based on the undisputed facts, defendants seek summary judgment on four grounds:

(1) the conditions of plaintiffs’ confinement were not severe enough to pose a substantial risk

to their health and safety; (2) plaintiffs did not suffer injury because of their conditions of

confinement; (3) defendants were not aware that the clogged toilet in plaintiffs’ cell posed any

danger to them; and (4) defendants are entitled to qualified immunity. Addressing these

arguments below, the court is not persuaded by defendants’ first and second arguments related

to a lack of severity and injury, and finds that the material facts related to the knowledge of

defendants Bates and Kolba are disputed, precluding the entry of summary judgment in favor

of these defendants. However, the court concludes that defendants Olson, Ingenthron, and

Muller are entitled to summary judgment because no reasonable jury could find that they acted

with deliberate indifference to plaintiffs’ ongoing conditions of confinement, even drawing all

reasonable inferences and viewing the evidence -- including the alleged video footage -- in a

light most favorable to plaintiffs.

A. Severity of Conditions

For an adverse condition to be sufficiently serious, it must be “extreme,” Hudson v.

McMillian, 503 U.S. 1, 9 (1992), and it must deprive the prisoner of a “minimal civilized

to live in unsanitary conditions from urine and feces in their cell. While defendants are correct

that “[a] single clogged toilet does not violate the Constitution,” Hardeman, 933 F.3d at 821,

it is undisputed that plaintiffs in this case had to sleep, brush their teeth, and otherwise live

next to a non-working toilet filled with urine and feces for six days. Moreover, “courts have

been especially cautious about condoning conditions that include an inmate’s proximity to

human waste.” Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990); see also DeSpain v. Uphoff,

264 F.3d 965, 974 (10th Cir. 2001) (exposure to human waste, even for 36 hours, could

constitute sufficiently serious deprivation in violation of Eighth Amendment); McCord v. Ruiz,

No. 18-c-1311, 2020 WL 5877684, at *4 (E.D. Wis. Oct. 2, 2020) (“Concerning the toilet,

long-term or extreme exposure to human waste, especially when compounded with other

conditions, clearly is a deprivation contemplated under this standard.”) (collecting cases);

Hollins v. Waller, No. 17-CV-757-JDP, 2019 WL 5864897, at *3 (W.D. Wis. Nov. 8, 2019)

(finding similar conditions serious enough to meet severity element on summary judgment).

Finally, plaintiffs further contend that they did not have regular or easy access to another toilet

during that time. If true, this would exacerbate the severity of their conditions and may allow

a reasonable trier of fact to infer that plaintiffs faced a significant risk of harm to their health

and safety.

B. Cognizable Injury

Although plaintiffs have not proposed any specific, factual findings regarding any

physical injury suffered from their conditions of confinement, they both have submitted

declarations averring that: (1) they “at times” had “really bad cramping pains for holding his

feces for so long” and at other times “would get constipated,” making it more painful to go to

from the stench; and (3) when they urinated in their toilet, small droplets of sewage would get

on the floor and their clothing, putting them “at risk of bodily harm.” (Dkt. ##46 and 48, at

¶¶ 15-16.)

Defendants seek summary judgment based on the fact that plaintiffs sustained only

these “minor” discomforts from the conditions of their confinement. In support of this

argument, they cite Lord v. Beahm, 952 F.3d 902, 905 (7th Cir. 2020), in which the Seventh

Circuit held that “an insincere threat of suicide to get attention,” coupled with a superficial

physical injury, is not sufficient to demonstrate a cognizable harm, and affirmed the grant of

summary judgment in the defendants’ favor. However, as this court has held, “the Lord opinion

proves an ill-fit” for claims arising out of intolerable conditions of confinement, which

“encompass a combination of conditions creating ‘a risk of particular discomfort and

humiliation.’” Artis v. Price, No. 19-cv-303-wmc, 2021 WL 4086208, at *7 (W.D. Wis. Sept.

8, 2021) (quoting Hope v. Pelzer, 536 U.S. 730, 738 (2002)). In particular, courts have found

that “[e]xposure to human waste, like few other conditions of confinement, evokes both the

health concerns emphasized in Farmer, and the more general standards of dignity embodied in

the Eighth Amendment.” DeSpain, 264 F.3d at 974; see also LaReau v. MacDougall, 473 F.2d

974, 978 (2nd Cir. 1972) (“Causing a man to live, eat, and perhaps sleep in close confines with

his own human waste is too debasing and degrading to be permitted.”); Hardeman, 933 F.3d at

821 (citing DeSpain with approval); Karow v. Est. of Heyde, No. 14-cv-395-jdp, 2017 WL

1194740, at *9 (W.D. Wis. Mar. 30, 2017) (explaining that conditions-of-confinement

deprivations include “exposing the inmate to substantial risks of bodily harm without

justification, inflicting unnecessary pain, causing unnecessary humiliation, or offending

contemporary standards of human decency”). Accordingly, the court also rejects defendants’

injuries or impaired health.8

C. Defendants’ Conscious Disregard

To survive summary judgment, plaintiffs must also show that each of the defendants

acted with deliberate indifference to the conditions they faced. Gray, 826 F.3d at 1006. Here,

the extent and timing of defendants’ knowledge is largely in dispute. Considering the evidence

in a light most favorable to plaintiffs, as the court must do at this stage, plaintiffs informed

defendants Bates and Kolba of an ongoing problem with their toilet and their exposure to human

waste at least by March 25, 2023; yet these same defendants took no action to resolve the

issue, even after plaintiffs informed them that the plungers would not unclog the toilet. See

Hollins, 2019 WL 5864897, at *3 (finding disputed issues of material fact as to conscious

disregard where plaintiff said defendants knew the provided supplies did not work to clean

urine and feces from cell). While plaintiffs do not assert that they had further interactions

with these particular defendants after March 25, 2023, they aver telling other staff working on

the unit that their toilet remained clogged. Defendants are correct that they cannot be blamed

for the actions (or lack thereof) of other, unidentified staff members, but a reasonable jury may

infer that any correctional officer working in the vicinity necessarily would have known about

the ongoing condition of plaintiffs’ cell. See Vinning-El v. Long, 482 F.3d 923, 925 (7th Cir.

2007) (citing Hall v. Bennett, 379 F.3d 462, 464 (7th Cir. 2004), for holding that deliberate

indifference can be inferred from circumstantial evidence, including evidence that the risk was

so obvious as to impart actual knowledge on part of defendants).

8 Of course, a jury might find a lack of evidence of compensable, physical injuries or impaired health,

foreclosing an award of compensatory damages beyond $1.00, though punitive damages may

plaintiffs’ unit after March 23, 2023, a reasonable jury would have no basis to impute

knowledge of an ongoing, unfixed problem with plaintiffs’ cell toilet for more than one day.

Thus, plaintiffs evidence fails to support inferring that knowledge to Sergeant Olson. In

contrast, it is undisputed that Bates and Kolba again worked on the unit at some point between

March 25 and March 29, 2023. In light of the above circumstances and factual disputes, a

reasonable jury may infer that defendants Bates and Kolba were aware of the growing,

unresolved problem with plaintiffs’ cell. Thus, the court must deny summary judgment as to

both, including on qualified immunity grounds. See Hardeman v. Curran, 933 F.3d 816, 821

(7th Cir. 2019) (recognizing clearly established right of inmates “not to be forced to live

surrounded by their own and others’ excrement”).

Finally, construing the evidence of record in plaintiffs’ favor and considering the totality

of the circumstances, no reasonable jury could find that defendants Ingenthron and Muller had

sufficient time to take any action to help plaintiffs before the toilet was unclogged on March

29, 2023. In particular, plaintiffs themselves aver that on March 28, 2023, they personally

handed Muller their complaint forms (a fact they maintain will be corroborated by video

footage yet to be released by defendants) and submitted an information and request form to

Ingenthron. As an initial matter, the evidence regarding Unit Manager Ingenthron’s receipt of

the information request is questionable, and it is unclear whether video footage of ICE Muller

in the dayroom on plaintiff’s housing unit will be helpful in establishing her receipt of plaintiffs’

complaint forms on March 28, 2003, as plaintiffs claim. Even considering plaintiffs’ account

of these events to be true, however, a reasonable jury could not find that Ingenthron and Muller

consciously disregarded plaintiffs’ conditions of confinement on March 28, 2023, given that

plaintiffs’ toilet was unclogged the very next day. Instead, the undisputed evidence shows that

took action on March 30, 2023, to make sure plaintiffs were no longer living with these

conditions.

While plaintiffs argue that Ingenthron and Muller should have taken quicker action to

resolve the clogged toilet, these defendants caused no more than a 24-hour delay in plaintiffs

receiving relief from the unsanitary conditions. Under these circumstances, a reasonable jury

could not conclude that defendants’ failure to act immediately upon their alleged receipt of

plaintiffs’ complaint on March 28, 2023, rose to the level of deliberate indifference, as they

would have needed some time to investigate and help put things right. Accordingly, defendants

Ingenthron and Muller are also entitled to summary judgment on plaintiffs’ claim against them.

ORDER

IT IS ORDERED that defendants’ motion for summary judgment (dkt. #35) is

GRANTED IN PART and DENIED IN PART, as follows:

1) Plaintiffs’ claims against defendants Olson, Ingenthron, and Muller are

DISMISSED WITH PREJUDICE.

2) Defendants’ motion is DENIED in all other respects, and this case will proceed

to trial on plaintiffs’ claims against defendants Bates and Kolba.

Entered this 14th day of March, 2025.

BY THE COURT:

/s/

______________________________

WILLIAM M. CONLEY

District Judge