Board, Herbert L. v. Farnham, Karl

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2628

HERBERT L. BOARD, et al.,

Plaintiffs-Appellees,

v.

KARL FARNHAM, JR., et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01-2190—Michael P. McCuskey, Chief Judge.

____________

ARGUED DECEMBER 12, 2003—DECIDED JANUARY 5, 2005

____________

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, Circuit Judge. Brothers Herbert and Jerome

Board (collectively the “Boards”), along with three other

plaintiffs, filed a sixteen-count complaint against fourteen

defendants in their individual and official capacities alleg-

ing various constitutional injuries pursuant to 42 U.S.C.

§ 1983, as well as state law violations dealing with the Board

brothers’ arrest, incarceration, and subsequent acquittal on

murder charges in Edgar County, Illinois. As a result of a

voluntary dismissal and the district court’s unchallenged

grant of summary judgment in favor of the defendants on a

2 No. 03-2628

number of their claims, only three of the Boards’ constitu-

tional claims survive. On interlocutory appeal, defendants-

appellants claim the district court erred by not granting

them summary judgment on the remaining claims because

they are entitled to qualified immunity. Affirmed.

I. BACKGROUND

In September of 1984, two Indiana men failed to return

home at the end of the day. Neither the men nor their

bodies were ever found, and the two men were eventually

declared legally dead. On August 2, 2000, brothers Herbert

“Duke” Board (“Duke”) and Jerome Board (“Jerry”), resi-

dents of nearby Paris, Illinois, were arrested and charged

with the murders of the two men.

While awaiting trial, Duke and Jerry were held at the

Edgar County Illinois Jail (“Jail”) for 126 days. On

December 6, 2000, they were released from custody follow-

ing their acquittal on the murder charges. During the

brothers’ detention at the Jail, defendant Karl Farnham, Jr.

was the Sheriff of Edgar County and defendants Allen

Verchota and Kent Rhoades were jailers. At maximum

capacity, the two-story Jail could house up to 28 inmates

and was staffed by one jailer per shift, per floor. Both men

claim that the alleged inhumane and inadequate conditions

which existed at the Jail during their confinement infringed

upon their constitutional rights.

A. The Jail’s Toothpaste Provision

When the Boards were admitted to the Edgar County Jail,

it was the Jail’s policy to provide inmates, upon induction,

with basic toiletry items—such as soap, toothpaste, and

shampoo—free of charge. In addition, inmates also had the

option of purchasing brand-name items from the Jail

commissary. In the event that the inmate’s supply of a

No. 03-2628 3

given toiletry item ran low, inmates could either request ad-

ditional items, free of charge, from the Jail’s staff or pur-

chase the brand-name items from the commissary. How-

ever, inmates in custody were not allowed to receive such

items from outside sources (e.g., friends, family and other

visitors) for security reasons.

Pursuant to the Jail’s policy, Duke and Jerry each re-

ceived a Jail-issued toothbrush and a supply of toothpaste,

deodorant, one blanket, and an orange jumpsuit when they

were booked into the Jail on August 2, 2000. In spite of this,

however, Jerry claims he did not have toothpaste for 90% of

the time during his stay in Jail. Similarly, Duke claims he

went without toothpaste for three-and-a-half weeks, al-

though he requested that Farnham supply him with addi-

tional toothpaste on approximately 15 different occasions

during that time. Duke claims that this deprivation caused

him to suffer tooth decay resulting in the removal of several

of his teeth while he was confined in the Jail.

B. The Jail’s Ventilation System

While incarcerated, Duke and Jerry also suffered frequent

nosebleeds which they attributed to the Jail’s poor ventila-

tion system. Duke and Jerry claim the Jail’s heating and air

flow system issued a “constant flow of black fiberglass dust

into the cells which caused Jerry, Duke and other inmates to

have countless nosebleeds.” Appellee’s Br. at 20. Indeed,

Duke testified that he suffered from nosebleeds “[e]very

day” he was confined in the Jail, starting about two weeks

after his confinement began. Duke Board Dep. at 130. News

of this prompted the Boards’ father, Herbert Board, to

contact Jacob Payne, an Edgar County Board member, to

discuss the Jail’s ventilation system. As a result of this

conversation Farnham hired a heating contractor, Richard

Walker (“Walker”), to investigate the concerns and address

any issues that may exist. Farnham allegedly told him that

4 No. 03-2628

“some inmates were sick and the ducts were suspected [as

the cause].” Walker Aff. ¶ 4. According to Farnham, Walker’s

investigation found nothing wrong with the ventilation sys-

tem. Nonetheless, Farnham instructed a maintenance crew

to clean the vent covers, and suggested that the Jail

administrators change the air filters every thirty days.

Walker testified via sworn affidavit that he observed the

following upon inspection of the duct work: (a) “a thick layer

of dust and dirt inside the duct work”; (b) “the ducts were

lined with an approximate [sic] one inch thick black fiber-

glass duct liner; this old-fashioned duct liner does not have

the protective coating that newer duct liner has [sic], to

prevent the fiberglass particles from entering the air flow”;

(c) “the liner did not look deteriorated[,] but when I touched

it, a large cloud of black dust rolled off the liner; and (d) “I

saw actual particles of fiberglass throughout the black

dust.” Walker Aff. ¶ 6. In response to these observations

Walker stated that he told Farnham that the Jail may be

suffering from “sick building syndrome,” as a result of the

fiberglass and bacteria present in the ventilation system.

Walker Aff. ¶ 9. In addition, Walker claims he told Farn-

ham that if people were becoming ill, the duct work system

should be replaced because, among other things, “[a]ny

airborne bacteria or diseases [could] be communicated

through the common ductwork to other parts of the build-

ing.” Id. Farnham allegedly told Walker that he wanted a

“quick solution,” however, Walker told Farnham that, at the

very least, the Jail would have to “clean the entire ductwork

system, not simply where the air comes out.” Id. Also,

Walker gave Farnham an estimate for the installation of a

superior filter and black-light system to kill bacteria in the

ducts, but never heard back from Farnham. Id. at ¶ 11.

Walker went on to state that, in his experience, fiberglass

particles in the air circulation system can cause nosebleeds

and respiratory problems, including those described by

Duke and Jerry.

No. 03-2628 5

Apparently Farnham chose not to take Walker’s rec-

ommendation seriously. Duke Board testified that he was

unaware that any inspection had taken place. Duke Dep. at

133. In addition, Duke stated that Farnham told him that

the maintenance crew at the Jail would vacuum the vent

covers and registers, but that the ducts (the source of the

black fiberglass particles) could not be cleaned without

tearing apart the ceilings. Id. at 132. A fellow inmate at the

Jail stated in his affidavit that, during the time period

when the Boards were being held at the Jail, the Jail’s staff

only attempted to vacuum the vents one time. See Weiland

Aff. ¶ 4. Wieland also stated that “the jail was dusty and

dirty all the time [and] even when we swept [the black

fiberglass residue] up it was dirty just hours later with

black dust all over.” Id. at ¶ 5.

C. Duke’s Asthma

In addition to causing nosebleeds, Duke Board claims

the poor ventilation system exacerbated his pre-existing

asthma; a condition which he had previously been able to

control with prescription asthma medication. While incar-

cerated, Duke was granted access to his inhaler, as well as

nebulizer treatments to aid his troubled breathing. However,

on at least two occasions, when Duke’s asthma did not

respond to such treatments, Jail personnel took him to the

emergency room of a nearby hospital for additional treat-

ment. Duke also claims that jailers Verchota and Rhoades

denied his requests for his inhaler on several occasions, thus

contributing to and exacerbating his asthmatic problems.

According to his mother, before being jailed Duke had his

asthma condition under control and “was not using much

medication or having asthma attacks.” Young Aff. ¶ 7. How-

ever, while in Jail, Duke’s condition took a turn for the

worse (a circumstance which he blames, at least in part, on

the poor ventilation system at the Jail). While incarcerated,

6 No. 03-2628

Duke was provided with an “albuterol” inhaler,1 which he

states was prescribed to prevent the obstruction of his

airway associated with asthmatic complications. See Duke

Dep. at 163-65. Duke testified that he was allowed to keep

his inhaler in his cell for approximately five to ten days, but

thereafter he was required to request the device from

jailors. Id. at 164-65. However, Duke claims Verchota and

Rhoades did not always comply with his requests. Duke

stated that there were times when Verchota and Rhoades

would “not give [him] medication when [he] asked for it,”

despite his pounding and kicking the walls to alert the

guards that he was having an attack. Id. at 166. Duke

claimed he would go all night without his medication and in

the morning would “be almost frickin’ de[a]d.” Id.

D. The Plaintiffs’ Complaint

After their acquittal and subsequent release from Jail in

December of 2000, Duke and Jerry returned to Paris,

Illinois. Subsequently, a group of five plaintiffs filed suit in

response to the circumstances surrounding Duke and

Jerry’s arrest, criminal investigation, and incarceration.

Their lengthy complaint, filed pursuant to 42 U.S.C. § 1983,

included 208 paragraphs, eighteen individual counts, and

fourteen named defendants. As a result of voluntary

dismissal and the district court’s unchallenged grant of the

defendants’ motion for summary judgment on a number of

1

Albuterol is the scientific name for the drug used in a number

of brand-name asthma inhalers such as Ventolin HFA. See

Dunplay, et al. Physician’s Desk Reference 1665-67 (58th ed.

2004). Albuterol is a beta2-adrenergic bronchodilator, which

means it “relaxes the smooth muscles of all airways, from the

trachea to the terminal bronchioles.” Id. at 1666. Inhalers con-

taining albuterol are used to control the symptoms brought on by

a asthma attacks. See id.

No. 03-2628 7

the claims, only Duke and Jerry remain as plaintiffs and

only three of their constitutional claims survive. The denial

of summary judgment concerning these three claims form

the basis for this interlocutory appeal.

The following constitutional claims remain: whether (1)

Farnham infringed on the Boards’ constitutional rights by

failing to provide them with toothpaste; (2) Farnham failed

to provide humane conditions of confinement for Duke and

Jerry by failing to remedy the Jail’s ventilation system

which caused serious medical problems in the form of nose-

bleeds, respiratory distress and asthma attacks; and (3)

Verchota and Rhoades were deliberately indifferent to a

serious medical condition when, on a number of occasions,

they failed to provide Duke with his inhaler upon his

request.

Each of these claims alleges a violation of the Eighth

Amendment’s prohibition on cruel and unusual punishment

as applied to pre-trial detainees by way of Due Process

Clause of the Fourteenth Amendment. In the district court’s

40-page Order, Judge Michael P. McCuskey, presiding, held

that these claims should survive summary judgment because

they presented a genuine issue for trial, notwithstanding

the defendants-appellant’s qualified immunity defense.

On June 16, 2003, Farnham, Verchota, and Rhoades filed

a timely notice of interlocutory appeal. As in the district

court, the defendants-appellants claimed that, because they

are government employees, and because the specific con-

stitutional rights asserted by the Boards’ were not clearly

established during the time of their incarceration, they are

entitled to qualified immunity, and as such, summary judg-

ment should have been granted. We Affirm.

II. ANALYSIS

Under 28 U.S.C. § 1291, we have jurisdiction to hear ap-

peals only from “final decisions” of district courts. Coady v.

8 No. 03-2628

Steil, 187 F.3d 727, 730 (7th Cir. 1999); see Whitt v. Smith,

832 F.2d 451, 453 (7th Cir. 1987). Interlocutory appeals are

an exception to this rule. Coady, 187 F.3d at 730. A district

court’s denial of a claim of qualified immunity, notwith-

standing the absence of a final judgment, is immediately

appealable as a final decision to the extent that it turns on

an issue of law. Whitt, 832 F.2d at453.

However,“ ‘a defendant entitled to invoke a qualified-im-

munity defense, may not appeal a district court’s summary

judgment order insofar as that order determines whether or

not the pretrial record set forth a ‘genuine’ issue of material

fact.’ ” Coady, 187 F.3d at 730 (quoting Johnson v. Jones,

515 U.S. 304, 319-20 (1995)). Thus, while it is inappropriate

for us to review a district court’s determination about the

sufficiency of the evidence warranting summary judgment

or whether a genuine issue of material fact is in dispute on

interlocutory appeal, we may review “abstract issues of

law.” See Johnson, 515 U.S. at 317. We have held that our

jurisdiction extends to interlocutory appeals such as this

one challenging a district court’s determination that a set of

facts demonstrate a violation of “clearly established” consti-

tutional law and preclude the defendants from proffering a

qualified immunity defense. Id.; see Coady, 187 F.3d at 730-

31.

When deciding whether a public official is entitled to

qualified immunity, “ ‘we simply assume the disputed facts

in the light most favorable [to the plaintiff], and then de-

cide, under those facts, whether the [defendants] violated

any of [the plaintiff’s] clearly established constitutional

rights.” Id. (quoting Brewster v. Board of Educ. of Lynwood

Unified School Dist., 149 F.3d 971, 977 (9th Cir. 1998)). To

that end, this appeal may properly consider the defendants

Farnham, Verchota, and Rhoades’ arguments that the

district court erred in denying them summary judgment on

the Boards’ claims that deprivation of toothpaste, deprivation

of Duke’s inhaler, and inadequate ventilation violated their

established constitutional rights. See id.

No. 03-2628 9

As referred to above, qualified immunity shields govern-

ment employees from liability for civil damages arising from

actions within the scope of their employment unless their

conduct violated “clearly established . . . constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); accord Thomas

v. Ramos, 130 F.3d 754, 763 (7th Cir. 1997). Qualified

immunity is an “immunity from suit rather than a mere

defense to liability,” see Mitchell v. Forsyth, 472 U.S. 511,

526-27 (1985). Thus, in the interest of judicial economy, this

court reviews qualified immunity questions on interlocutory

appeal rather than forcing the parties to endure trial, which

would be rendered futile if the defendants were found to

have been immune from suit on direct appeal.

We review a trial court’s denial of a defendant’s claim of

qualified immunity de novo, see Finsel v. Cruppenink, 326

F.3d 903, 906 (7th Cir. 2003), and undertake a two-part

analysis, asking: (1) whether the facts alleged, “[t]aken in

the light most favorable to the party asserting the injury, . . .

show the officer’s conduct violated a constitutional right”;

and (2) whether the right was clearly established at the

time of its alleged violation. Saucier v. Katz, 533 U.S. 194,

201 (2001). Stated differently, even if we conclude that the

defendant’s alleged actions were improper to the point of

being unconstitutional, the defendant is still entitled to

qualified immunity unless the unconstitutionality of the

actions was clearly established at the time of their occur-

rence. Id.

In determining whether a constitutional right has been

clearly established, it is not necessary for the particular

violation in question to have been previously held unlawful.

Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also

Mitchell, 472 U.S. at 535 n.12 (holding that a clearly

established right does not require judicial precedent to that

effect). Instead, a clearly established constitutional right

exists in the absence of precedent, where “the contours of

10 No. 03-2628

the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Anderson, 483 U.S. at 640. To that extent, government

officials are considered “on notice” that conduct is violative

of established law if the state of the law at the time gave

them “fair warning” that their conduct would be unconstitu-

tional. Hope v. Pelzer, 536 U.S. 730, 741 (2002); see Finsel,

326 F.3d at 908.

At the outset, we note that the constitutional rights of a

pretrial detainee are derived from the Due Process Clause

of the Fourteenth Amendment and are distinguishable from

an inmate’s right not to be subjected to cruel and unusual

punishment under the Eighth Amendment. Bell v. Wolfish,

441 U.S. 520, 535 n.16 (1979). Pursuant to constitutional

requirements, a pretrial detainee “may not be punished prior

to an adjudication of guilt in accordance with due process of

law.” Bell, 441 U.S. at 535. Therefore, when assessing the

constitutionality of the conditions or restrictions of pretrial

detention, we must determine whether the conditions

allegedly encountered by the detainee amounted to punish-

ment. Id. at 536-37; accord Antonelli v. Sheahan, 81 F.3d

1422, 1427 (7th Cir. 1996). However, as this court has made

clear on a number of occasions, the mere fact that pretrial

detention interferes with a person’s desire to live comfort-

ably and free from restraint does not, without more, make

the conditions of that confinement unconstitutional. See,

e.g., Rapier v. Harris, 172 F.3d 999, 1003 (7th Cir. 1999);

Tesch v. County of Green Lake, 157 F.3d 465, 476 (7th Cir.

1998). Rather, conditions of confinement which are “reason-

ably related to a legitimate and non-punitive government

goal,” are not unconstitutional, Antonelli, 81 F.3d at 1427-

28 (citing Bell, 441 U.S. at 539), and we caution that this

court will give a high degree of deference to the discretion

of prison administration to “adopt polices and practices to

maintain the safety and security of this country’s penitentia-

ries.” United States v. Tokash, 282 F.3d 962, 970 (7th Cir.

2001); see Bell, 441 U.S. at 548.

No. 03-2628 11

Although the Eighth Amendment does not apply to pre-

trial detainees, pretrial detainees are entitled to at least

as much protection as the constitution provides convicted

prisoners. See Cavalieri v. Shepard, 321 F.3d 616, 620 (7th

Cir. 2003). The Eighth Amendment protects an inmate from

a governmental actor’s “deliberate indifference to his basic

needs.” Id. at 620. Under this standard, conduct is “deliber-

ately indifferent” when the official has acted in an inten-

tional or criminally reckless manner, i.e., “the defendant

must have known that the plaintiff ‘was at serious risk of

being harmed [and] decided not to do anything to prevent

that harm from occurring even though he could have easily

done so.’ ” Armstrong v. Squadrito, 152 F.3d 564, 577 (7th

Cir. 1998) (quoting West v. Waymire, 114 F.3d 646, 651 (7th

Cir. 1997)). In Armstrong, we noted that “[u]nder other con-

stitutional provisions [such as the Fourteenth

Amendment] . . . the standard for deliberate indifference

appears closer to tort recklessness.” Id. In recognition of

this, we have articulated the test for deliberate indifference

for Fourteenth Amendment purposes to be “a conscious

disregard of known or obvious dangers.” Armstrong, 152 F.3d

at 577 (quoting West, 114 F.3d at 651). However, consider-

ing “the difficulty of peering into minds [of government

officials or institutions],” this distinction is of little signifi-

cance in practical application. West, 114 F.3d at 651. Thus,

we have found it convenient and entirely appropriate to

apply the same standard to claims arising under the Four-

teenth Amendment (detainees) and Eighth Amendment

(convicted prisoners) “without differentiation.” Henderson

v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999); See

Higgins v. Correctional Med. Servs. of Illinois, Inc., 178 F.3d

508, 511 (7th Cir. 1999); see also Mathis v. Fairman, 120

F.3d 88, 91 (7th Cir. 1997). In either case the plaintiff has

the burden of showing that: (1) the harm to the plaintiff

was objectively serious; and (2) the official was deliberately

indifferent to her health or safety. Cavalieri, 321 F.3d at

620; see also Farmer v. Brennan, 511 U.S. 825, 834-37

(1994).

12 No. 03-2628

Farnham, Verchota, and Rhoades argue that the district

court committed a reversible error in denying them qua-

lified immunity. They argue that even when the facts are

construed in the Boards’ favor, none of their complaints

allege a violation of a constitutional right, and even if such

rights did exist, they were not clearly established at the

time the Boards were incarcerated. Cavalieri, 321 F.3d at

620. Accordingly, our first task is to determine whether the

Boards had a constitutional right to: (a) an adequate supply

of toothpaste; (b) an asthma inhaler where the detainee is

suffering from an established asthmatic condition; and (c)

an adequate ventilation system in the Jail. Then, if we find

that the district court correctly determined that a constitu-

tional right has been violated, we must then determine

whether that right was clearly established at the time of

the Boards’ confinement. Id.

A. Constitutional Right to Toothpaste

Appellants first challenge the district court’s denial of

qualified immunity to Farnham on two counts involving the

denial of oral hygiene supplies. Duke alleges his consti-

tutional rights were violated when he was denied toothpaste

for three to three-and-a-half weeks, despite repeated re-

quests for the same, which caused him pain and suffering

and resulted in the extraction of a number of his teeth.

Also, both Duke and Jerry allege a failure to provide humane

treatment arising solely from Farnham’s depriving them of

toothpaste. The Boards’ deprivation of toothpaste claims

only involve Farnham, because he was the only defendant

with the responsibility of providing toothpaste and other

necessary hygiene products to inmates and detainees.2 The

2

Farnham argues that Duke’s testimony attributed toothaches

to the two doughnuts he ate every morning for breakfast, and not

(continued...)

No. 03-2628 13

district court ruled on both counts, denying summary

judgment and holding that the failure to provide toothpaste

may constitute deliberate indifference “given Plaintiffs’

description of medical problems, including dental troubles.”

Board v. Farnham, No. 01-2190, Slip op. at 28 (C.D. Ill.

2001). However, the deprivation of toothpaste over an

extended period of time (allegedly 3.5 weeks for Duke and

16 weeks for Jerry) leading to serious health problems and

the denial of toothpaste as a hygiene product without

attenuated medical and dental consequences involve

slightly different constitutional analyses.

The Eighth Amendment protects a detainee not only from

deliberate indifference to his or her current serious health

problems, but also from deliberate indifference to conditions

posing an unreasonable risk of serious damage to future

health. Henderson, 196 F.3d at 846-47 (citing Helling v.

McKinney, 509 U.S. 25, 33-35 (1993). Thus, Duke’s assertion

that the deprivation of toothpaste resulted in dental prob-

lems can either be analyzed under the deliberate indiffer-

ence to current or existing medical needs test or under the

deliberate indifference to conditions which pose a risk to

future health. See id. However, Duke and Jerry’s claim that

toothpaste was denied to them as a hygiene product (with-

out attenuated and contemporaneous medical consequences)

may proceed only as a claim of deliberate indifference to a

serious medical condition that might in turn thereafter

threaten future health or cause serious medical problems

threatening future health. See Helling, 509 U.S. at 34-35. The

Boards also claim that the constitutional right to oral hy-

2

(...continued)

to the failure to receive toothpaste. The Boards point out, how-

ever, that it is more reasonable to attribute the toothaches to

eating two doughnuts a day without being able to brush with

toothpaste. We further note that the Jail provided the doughnuts

on a daily basis as the sole breakfast food.

14 No. 03-2628

giene supplies was clearly established at the time of the

alleged violations, which would preclude a holding that the

defendants are entitled to qualified immunity. See Saucier,

533 U.S. at 201. We discuss each in turn.

1. Duke’s Denial of Medical Treatment Claim

Appellants argue that the district court erred in finding

that Duke and Jerry had a constitutional right to tooth-

paste as pre-trial detainees under the Eighth Amendment.

They argue that without evidence of a “significant injury”

(Appellant Br. at 15), there can be no constitutional right to

a supply of toothpaste, and thus they should be entitled to

qualified immunity on this claim. Appellants are correct to

the extent that they assert that the denial of medical

treatment satisfies the deliberate indifference standard only

if significant harm or injury is shown. Jackson v. Illinois

Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002). However,

Duke does allege that he was injured as a result of being

deprived access to an adequate supply of toothpaste. Thus,

Duke’s allegation that his constitutional rights were vio-

lated by the Jail authorities’ denial of toothpaste resulting in

teeth having to be pulled is analyzed under the rubric of an

inmate’s right to receive adequate medical treatment. See

Boyce v. Moore, 314 F.3d 884, 890 (7th Cir. 2002). Again, to

make out a claim under the Eighth Amendment for failure to

provide adequate medical treatment, a pre-trial detainee

must demonstrate that: (1) his condition was “objectively ser-

ious”; and that (2) the defendants were deliberately indiffer-

ent to that condition. Wynn v. Southward, 251 F.3d 588,

593 (7th Cir. 2001).

At the outset, we reiterate our view that “dental care is

one of the most important medical needs of inmates.” See

Wynn, 251 F.3d at 593 (quoting Ramos v. Lamm, 639 F.2d

559, 576 (10th Cir. 1980)). In addition, a number of other

courts have also held that dental pain accompanied by var-

ious degrees of attenuated medical harm may constitute an

No. 03-2628 15

objectively serious medical need. See Fields v. Gander, 734

F.2d 1313, 1314-15 (8th Cir. 1984); see also Penrod v. Zavaras,

94 F.3d 1399, 1406 (10th Cir. 1996) (recession or bleeding of

the gums); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995)

(deterioration of teeth due to lack of treatment); Hunt v.

Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (an interfer-

ence with the ability to eat). For example, in Penrod v.

Zavaras, the United States Court of Appeals for the Tenth

Circuit held that, for summary judgment purposes, the

deprivation of toothpaste resulting in bleeding gums and

tooth decay which had to be attended to by a dentist could

constitute serious harm under the Eighth Amendment.

Penrod, 94 F.3d at 1406.

Duke testified that he suffered from dental pain through-

out his incarceration. In addition, he claimed that teeth

which should have been surgically removed (and were rep-

resented to Duke as having been removed) were merely

broken off below the gumline by Dr. Sunkel, a dentist on

contract to Edgar County for the purpose of rendering med-

ical treatment to prisoners,3 posing further risk of serious,

even life-threatening infection and possibly death.4 Address-

3

Referring to the quality of treatment he received when his

damaged and decaying teeth were finally treated while in Jail,

Duke testified as follows: “When I got out of jail I found that he

didn’t extract my teeth. He broke them off below the gum and left

them. What the hell, I was looking at the death penalty, so he

didn’t think I was ever going to come back on him, so he broke the

sons-of-bitches off and kept me on pain killers the rest of the time

I was in jail. I call that physical abuse. You know, can you

imagine me sitting in a dentist’s chair shackled to it?” (Duke Dep.

at 99-100).

4

The risks posed by tooth loss, the most common cause of which

is periodontal disease (of which the most common form is known

as gingivitis), cannot be underestimated. Such diseases of the

mouth are believed to sometimes contribute to coronary athero-

sclerosis and a myriad of heart problems, as well as bacterial

(continued...)

16 No. 03-2628

ing these facts in the light most favorable to the nonmoving

party, there is sufficient evidence to conclude that the

plaintiffs have alleged an objectively serious harm with re-

gard to this count. Fields, 734 F.2d at 1314-15.5

Having determined that an objectively serious harm (den-

tal problems) has been alleged, we next analyze whether the

defendants-appellants remained deliberately indifferent to

that harm. Wynn, 251 F.3d at 593. As noted above, our

analysis applies only to Farnham on this count. Duke tes-

tified that he was denied adequate supplies of toothpaste

for a cohesive period of three to three-and-a-half weeks of

4

(...continued)

infections such as transient bacteremia or sepsis, all of which are

capable of causing death. See Eugene Buaunwald, et al., HARRI-

SON’S PRINCIPLES OF INTERNAL MEDICINE 194-95, 799-800 (15th ed.

2001).

5

Although, viewing the evidence in the record in the light most

favorable to Duke, we find that he has made a sufficient showing

of objective medical need to resist a grant summary judgment

based on qualified immunity against Farnham, we posit no con-

clusion as to the ultimate success or failure of his claim. Indeed,

the jury may find that Duke’s dental condition was due entirely to

a pre-existing condition and not due to the lack of toothpaste or

adequate medical treatment at the Jail. Duke testified via

deposition that he could not remember the last time that he had

visited the dentist for a cleaning, although he stated that he went

for what he considered “regular” cleanings. Duke Dep. at 161. In

addition, Duke testified that, prior to trial, he was told by a

dentist that some of his teeth would have to be “surgically

removed,” because the roots of his teeth were “bound at the top.”

Id. at 160. However, even if the deprivation of toothpaste at the

jail merely sped up or caused Duke’s dental problems to become

more serious, his claim would still survive summary judgment.

See Wynn, 251 F.3d at 593; see also Chance v. Armstrong, 143 F.3d

698, 702-03 (2d Cir. 1998).

No. 03-2628 17

his eighteen-week confinement in the Jail.6 In addition, Duke

alleges he was forced to complain to Farnham approximately

fifteen times in an effort to secure additional supplies and

was allegedly refused on each occasion. A reasonable trier

of fact might very well conclude that Farnham was both on

notice of Duke’s lack of toothpaste, and was or should have

been aware of the damage that such a deprivation was caus-

ing (or at least contributing to) Duke’s dental condition, and

that Farnham was deliberately indifferent under the cir-

cumstances. Therefore, because “[a]t the summary judgment

stage, [Farnham] cannot prevail if [the Boards] can present

a version of the facts that is supported by the evidence and

under which [Farnham] would not be entitled to qualified

immunity,” Hall v. Ryan, 957 F.2d 402, 404 (7th Cir. 1992),

we hold the district court did not commit error in finding

that Duke had alleged sufficient evidence of Farnham’s

deliberate indifference to his constitutional rights. See id.

at 406.

However, the constitutional right asserted, i.e., Duke’s

right to have his medical needs attended to as discussed

supra, must also have been clearly established at the time

6

Duke’s deposition, in relevant part, reads:

Q. Did you complain to anyone from the Edgar County sheriff

’s

department about not having adequate amounts of shampoo,

soap, or toothpaste?

A. Yes, I did.

Q. Who did you complain to?

A. To the sheriff, Karl Farnham.

Q. And when did you complain to him?

A. I don’t remember the date.

Q. Do you remember how many times you complained to him?

A. To the best of my recollection probably 15 times.

Q. And do you remember what his response to you was?

A. We’ll get it as soon as we can get it.

18 No. 03-2628

the violation occurred. Cavalieri, 321 F.3d at 620. The law

is clear that deliberate indifference to a serious medical con-

dition is a violation of a clearly established constitutional

right. See, e.g., Walker v. Benjamin, 293 F.3d 1030, 1040

(7th Cir. 2002). In addition, because a reasonable officer in

Farnham’s position should or would have understood he

was violating Duke’s constitutional rights to adequate med-

ical treatment by denying him dental hygiene products

which had and were, in all probability, severely impacting

Duke’s health, i.e., requiring him to undergo dental surgery,

we hold Duke had an established constitutional right to

toothpaste under the circumstances. See Saucier, 533 U.S.

at 202. Viewing the facts in the light most favorable to

Duke, Farnham’s conduct violated Duke’s established

constitutional right to receive adequate attention for a ser-

ious medical condition, and, therefore, Farnham is not en-

titled to qualified immunity on this claim. See id.; Walker,

293 F.3d at 1040.

2. Duke and Jerry’s Alleged Deprivation of Toothpaste

Next, Appellants claim that the district court erred in not

granting them qualified immunity on Duke and Jerry’s

claim that the denial of oral hygiene supplies (toothpaste),

without attenuated serious medical injury, was a violation

of the Boards’ established Eighth Amendment rights. We

have already held that Farnham is not entitled to qualified

immunity because Duke has stated a cause of action under

the Eighth Amendment for deprivation of toothpaste for three-

and-a-half weeks that constituted deliberate indifference to

a current or existing serious medical condition. Thus, as a

practical matter, Farnham is not entitled to qualified im-

munity as to Duke’s Eighth Amendment claim even if we

were to find that Jerry and Duke have failed to state a

claim under a deliberate indifference to a serious medical

No. 03-2628 19

need threatening future health rationale. However, for the

sake of simplicity we will consider both brothers’ claims in

concert.

The Boards allege Jail officials violated their constitu-

tional rights when they suffered through the deprivation of

toothpaste for extended periods of time (Duke: 3.5 weeks

and Jerry: 90% of his stay at the Jail or approximately 16

weeks), and that this deprivation constituted a failure to

provide humane treatment. This is a distinct and cognizable

constitutional claim under the Eighth Amendment. See

Helling, 509 U.S. at 34-35 (recognizing claims under the

Eighth Amendment for conditions which “pose a serious un-

reasonable risk of serious damage to [an inmate’s] future

health.”). Therefore, it would be inappropriate for us to

analyze this claim under the rubric of attention to present

medical needs without evidence of an existing objective harm

or injury. Jackson, 300 F.3d at 765. Instead, we analyze

Duke and Jerry’s deprivation of toothpaste claim in the con-

text of the constitutional right of pretrial detainees to receive

necessary and proper personal hygiene items as preventa-

tive of future medical and physical harm. See Henderson,

196 F.3d at 846-47; see also Martin v. Sargent, 780 F.2d

1334, 1338 (8th Cir. 1985).

While we have held that the denial of toothpaste for ten

days is not sufficient to state an Eighth Amendment claim,

see Harris v. Fleming, 839 F.2d 1232, 1234 (7th Cir. 1988),

other circuit courts have included the right to an adequate

supply of toothpaste under a right to hygienic materials.

See, e.g., Penrod, 94 F.3d at 1405-06. In Penrod v. Zavaras,

the Tenth Circuit held that the plaintiff had raised a genuine

issue of material fact as to whether prison officials’ denial

of free toothpaste (the plaintiff while incarcerated spent his

available funds pursuing legal claims), where the deprivation

of toothpaste eventually caused serious harm to his medical

needs—specifically recession of the gums and tooth

decay—violated the Eighth Amendment. Id. at 1406. Also, in

20 No. 03-2628

Green v. Ferrell, 801 F.2d 765 (5th Cir. 1986), the Fifth

Circuit reversed a magistrate’s holding that prison officials

are required to furnish “additional laundry service and

hygienic materials,” including toothpaste, where (as in this

case) the jail had a policy of providing hygienic materials

upon request. Id. at 771.

Indeed, the right to toothpaste as an essential hygienic

product is analogous to the established right to a nutrition-

ally adequate diet. See Antonelli, 81 F.3d at 1432. In

Antonelli v. Sheahan we held that the deprivation of a

nutritional diet could constitute a violation of a prisoner’s

Eighth Amendment rights. See id. This is because requiring

that prisoners and pre-trial detainees receive a nutrition-

ally adequate diet assists one in combating illness and

contributes to the prevention of future health problems. See

id. In the same respect, requiring that officials supply

needed dental and medical care in the form of oral hygiene

products, i.e., toothpaste, also prevents future potentially

serious dental problems such as tooth decay and gum infec-

tions. Unquestionably, the neglect of one’s dental hygiene

can, and frequently does, result in objectively serious dental

and medical problems, which is illustrated by Duke’s need

to have a number of his teeth extracted.7 Therefore, we hold

that the Boards, in claiming that they were deprived of

toothpaste for long periods of time, have sufficiently alleged

the violation of a cognizable constitutional right, which may

very well result in an objectively serious harm to future

health. See Cavalieri, 321 F.3d at 620.

7

As mentioned above, periodontal disease or gingivitis, which is

cause by a lack of dental hygiene, is a serious medical condition

which is manifested by the loss of teeth. See supra note 4. In

addition, complications from this condition have been diagnosed

as contributing to serious health problems including, but not lim-

ited to, heart complications, sepsis and even death.

No. 03-2628 21

However, having recognized that a constitutional right to

toothpaste exists under certain circumstances, and that the

injury caused by such a deprivation may be objectively

serious, we must next determine whether Farnham was de-

liberately indifferent to Duke and Jerry’s needs. See

Armstrong, 152 F.3d at 577. Duke claims he was denied ac-

cess to toothpaste for three-and-a-half weeks. Jerry claims

he was denied toothpaste for 90% of his 126 day stay at the

Jail. In addition, Duke and Jerry both claim they com-

plained to Farnham on a number of occasions about the

conditions at the Jail, and specifically about the lack of

toothpaste and other provisions, to no avail.8 Specifically,

8

Although Jerry never specifically articulated how many times

he requested toothpaste, viewing his testimony (and the facts and

circumstances surrounding that testimony) in the light most fa-

vorable to Jerry as we must, see Coady, 187 F.3d at 730-31, we

hold that Jerry has stated a claim of deliberate indifference to a

serious medical condition. This conclusion is based, at least in

part, on Jerry’s personal testimony, in which he stated:

Q: Were there occasions when you did not have any tooth-

paste?

A: Several. Ninety percent of the time I was there.

Q: Did you ask for toothpaste and was it denied to you?

A: They just didn’t have it.

Q: Did you ask a family member to provide toothpaste for

you?

A: They don’t do that. You can’t bring nothing [sic] in like

that.

Q: Do you know or have personal knowledge as to whether a

family member was provided the ability to provide you with

toothpaste?

A: I just told you. We asked if someone could bring us that

stuff in. They told us no. You buy it from [the Jail commis-

sary], and that’s it.

(continued...)

22 No. 03-2628

Duke claims he requested additional toothpaste approxi-

mately fifteen times. Viewing the testimony in the light

most favorable to Duke and Jerry, as we must, we hold that

they have sufficiently alleged a scenario that supports our

conclusion that Farnham was both deliberately indifferent

to their constitutional rights and was on notice as to their

predicament. See Hall, 957 F.2d at 404.

Finally, this Court is called upon to conclude whether the

constitutional right to oral hygiene products was clearly

established at the time of the alleged violations. A clearly

established right may be found, in the absence of precedent,

when “the contours of the right [are] sufficiently clear that

a reasonable official would understand that what he is

doing violates that right.” Anderson, 483 U.S. at 640. The

Eighth Amendment protects prisoners, and thus detainees,

from “an official’s deliberate indifference to conditions pos-

ing an unreasonable risk of serious damage to the prisoner’s

future health.” Henderson, 196 F.3d at 847 (citing Helling,

509 U.S. at 33-35). We have previously stated that “[d]ental

care is one of the most important medical needs of inmates.”

Wynn, 251 F.3d at 593 (quoting Ramos, 639 F.2d at 576).

Because dental care is a basic human need and the constitu-

tional test requires us to look at “the evolving standards of

decency that mark the progress of a maturing society,”

Rhodes v. Chapman, 452 U.S. 337, 346 (1981), Farnham

8

(...continued)

Jerry Board Dep. at 205. Although this statement is fairly ambi-

guous, viewing the record in the light most favorable to the non-

moving party as we must, it is conceivable that a “rational trier of

fact” could find that Jerry’s testimony established Farnham’s

deliberate indifference. Grube v. Lau Indus., Inc., 257 F.3d 723,

727 (7th Cir. 2001). Said differently, it is conceivable that a jury

could infer that Jerry’s response that “[t]hey just didn’t have it”

meant that he had requested toothpaste and was told that his

request was denied by Jail officials.

No. 03-2628 23

was or should have been “on notice” and had “fair warning”

that it would be unconstitutional for him to deny oral

hygiene products to pretrial detainees under his watch for

long periods of time. Hope, 536 U.S. at 741. We hold that

the district court did not err in denying qualified immunity

to Farnham based on the alleged denial of toothpaste to

Duke and Jerry Board for three-and-a-half weeks and

approximately 113 days respectively.

B. Duke’s Asthma Inhaler

The defendants-appellants also appeal the district court’s

denial of qualified immunity on one count of deliberate in-

difference to a serious medical condition arising out of

Verchota and Rhoades’ alleged failure to provide Duke with

his “albuterol” bronchodilator for the treatment and control

of asthma attacks. We have previously held that asthma can

be, and frequently is, a serious medical condition, de-

pending on the severity of the attacks. See Garvin v.

Armstrong, 236 F.3d 896, 898 (7th Cir. 2001). In Garvin, we

assumed for the purposes of that appeal that Garvin’s

asthmatic condition was sufficiently serious, but his claim

failed to sufficiently allege the second prong of our analysis,

demonstrating deliberate indifference. See id. at 898-99. In

another case, Alvarado v. Litscher, 267 F.3d 648 (7th Cir.

2001), we recognized asthma as a serious health condition

where a prisoner claimed the “environmental tobacco smoke”

aggravated his already “severe asthma.” Id. at 649-53. In

addition, other circuits have also found asthma to be a ser-

ious medical condition. See, e.g., Adams v. Poag, 61 F.3d

1537 (11th Cir. 1995). In Adams v. Poag, the United States

Court of Appeals for the Eleventh Circuit held that an

inmate, Adams, who was a lifelong asthma sufferer and

complained of serious attacks every couple days for nearly

a month until he died of acute respiratory failure, suffered

from a serious medical condition. Id. at 1543.

24 No. 03-2628

While incarcerated at the Edgar County Jail, Duke’s in-

haler use increased from one inhaler a month to one inhaler

every two days. Duke claims the air quality in the Jail and

the denial of his albuterol inhaler9 exacerbated his asthma

causing him to be taken to the emergency room on two

separate occasions for his asthma-related problems. He also

claims that his condition worsened resulting in severe

breathing difficulties that forced him to begin using a breath-

ing machine for the first time in his life. Duke testified that

on a number of occasions he was denied the use of his

inhaler and that the deprivation of the inhaler nearly killed

him. In pertinent part Duke stated:

There was a—there were times that I would have to say,

hey, this [albuterol inhaler] is empty. They would say,

well, we’ll have to get some more. The pharmacy isn’t

open tonight. It will be open tomorrow . . . [I would say]

that isn’t going to work for me, and they would end up

having to take me to an emergency room, and they would

put me on a breathing machine, because I didn’t have

my machine. Eventually it got so bad Allen Verchota

would not give me my medication when I would ask for

it. I would start breathing hard, and I would pound on

this wall . . . . Rick [a fellow prisoner] would know what

it was for, and Wieland [another fellow prisoner] would

start kicking the doors to try to get Allen Verchota to

give me my medicine. He wouldn’t do it. So eventually

the next morning another jailer would come in, and I

would be almost frickin’ [dead].

Duke Dep. at 165-66. Appellants claim this was due to

Duke’s use of tobacco while in prison. However, viewing

Duke’s testimony in the light most favorable to him, we

hold that he has sufficiently shown that his asthma was a

serious medical condition under the circumstances, threat-

ening both his health at the time and his future health.

9

See supra note 1.

No. 03-2628 25

Next Duke must establish that Verchota and Rhoades

were deliberately indifferent to his need for the inhaler. As

illustrated above, Duke testified that Verchota “didn’t give

[the inhaler] to me more times than he did.” Duke Dep. at

169. Also, Rhoades allegedly failed to provide the inhaler on

more than one occasion, using the excuse that he would give

it to Duke “when he got time.” Duke Dep. at 169. These

allegations are sufficient to establish deliberate indifference

for summary judgment purposes. As the we have noted in

the past, “deliberate indifference can be evidenced by

repeated examples of negligent acts which disclose a

pattern of conduct by the prison medical staff.” Wellman v.

Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (quoting Ramos,

639 F.2d at 575). In this case the guards, Verchota and

Rhoades, knew or should have known that Duke was

suffering from asthma, a serious medical condition, and to

refuse the man his inhaler putting Duke at a “serious risk

of being harmed”; both guards made a conscious decision

not to act when they easily could have. See Armstrong, 152

F.3d at 577. Therefore, we hold that, for summary judgment

purposes, Duke has sufficiently established the deliberate

indifference of the Jail staff to his medical need for his

asthma inhaler.

Finally, as discussed above, the right to receive adequate

treatment for serious medical needs is a clearly established

constitutional right. See Walker, 293 F.3d at 1040. There is

no doubt that both Verchota and Rhoades were, or should

have been “on notice” that refusing an asthma patient his

inhaler when he is complaining of severe breathing prob-

lems could constitute a deprivation of a pretrial detainee’s

constitutional rights. See Hope, 536 U.S. at 741. At the very

least Duke has alleged “pain and suffering . . . [which] is

inconsistent with contemporary standards of decency.”

Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, we agree

with the district court and hold that the trial judge did not

err in denying Verchota and Rhoades qualified immunity

26 No. 03-2628

for their alleged violation of Duke’s constitutional right to

adequate medical attention when they deprived him of his

inhaler.

C. Adequate Ventilation

Finally, the defendants-appellants appeal the district

court’s denial of qualified immunity based on the Boards’

contention that Jail officials failed to provide humane health

(breathing) conditions arising out of the allegedly unhealthy

condition of the Jail’s ventilation system. In the past we

have recognized that a constitutional right to adequate

ventilation exists, which, while not assuring the right to be

free from all discomfort, will be violated if inadequate ven-

tilation can be considered as constituting punishment of

pretrial detainees. Shelby County v. Westlake, 798 F.2d 1085,

1087 (7th Cir. 1986); see also Martin v. Tyson, 845 F.2d

1451, 1456 (7th Cir. 1988).

First, we hold that the alleged extremely poor condition

of the inadequate ventilation system at the Edgar County

Jail as alleged by the Boards, viewing their allegations

in the light most favorable to them, was sufficient to con-

stitute an objectively serious harm to both Duke and Jerry,

and thus violated their Eighth Amendment rights. See

Saucier, 533 U.S. at 201. Duke and Jerry allege that the

flow of black fiberglass dust into cells caused numerous

nosebleeds and respiratory problems for both Jerry and

Duke, as well as other inmates. Duke also alleges that the

poor ventilation system exacerbated his serious asthma

condition, which was compounded by the denial of his med-

ication, discussed infra, and resulted in his being hospitalized

and put on a breathing machine. This is harm which may

be both a hazard to the Boards’ current health (nosebleeds)

and which may cause future health problems (worsened

asthma or other serious respiratory harm). There is no

question that exposing prisoners to conditions such as those

described by the Boards “is contrary to current standards of

No. 03-2628 27

decency.” Helling, 509 U.S. at 35. In Helling, the Supreme

Court went as far as to hold that exposure to environmental

tobacco smoke (“ETS”), in certain circumstances, may very

likely pose an objectively serious threat to future health

sufficient to amount to cruel and unusual punishment. Id.

at 32-36. This case does not pose nearly as close or abstract

a question. The Boards have alleged direct physical mani-

festation of the harm caused by the poor ventilation, as well

as the quite likely possibility for future health problems;

therefore, they have satisfied the objective prong of the test

for an Eighth Amendment violation.

The Boards also claim that Jail officials were deliberately

indifferent to their plight. As evidence of this they cite the

affidavit of a heating contractor who visited the Jail and

gave an opinion on the state of the ventilation system and

repairs that needed to be done. In his opinion, the duct

system in the Jail was contaminated with black mold and

fiberglass liner and was a health hazard that needed

replacement.10 However, the Boards contend that Farnham

decided not to properly repair the problem, but instead only

tried to mask the symptoms of the problem by performing

a flimsy, non-productive band-aid procedure of merely

vacuuming the grates. This, in spite of the fact that the

private contractor/inspector, Richard Walker, specifically

testified that he told Farnham that the duct work system

needed to be replaced in order to cut down on the risk of

10

Richard Walker, a heating and air conditioning contractor,

testified in relevant part that he informed Sheriff Farnham that

the Jail might have “sick building syndrome” with the amount of

fiberglass and bacteria in the air system. He further testified as

to the possibility that the ductwork contained black mold. As a

remedy he suggested an ultraviolet light system designed to kill

airborne bacteria in a ductwork system or, at least, a thorough

cleaning of the ductwork system. In Walker’s opinion the entire

ductwork system needed replacement. (Walker Aff., Plaintiff Exh.

11).

28 No. 03-2628

disease and that if the duct system could not be replaced

immediately the Jail, at least, needed to “clean the entire

ductwork system, not simply where the air comes out.”

Walker Aff. ¶ 9.

The Boards have alleged facts, which, taken in the light

most favorable to their case, put Farnham on notice that

the Jail’s ventilation system was not only inadequate, but

also unhealthy. While there is some question as to whether

Farnham could have “avert[ed] the danger easily yet failed

to do so,”11 as is required to find deliberate indifference, the

Boards present a version of the facts that would support a

claim for deliberate indifference to an objectively unhealthy

ventilation system. See Hall, 957 F.2d at 404. Indeed, there

is sufficient evidence to permit a rational trier of fact to find

that even arranging for the ducts to be cleaned (which was

not done), as other areas of the Jail are undoubtedly

cleaned or maintained, could have helped improve the

situation. Thus, we find that sufficient facts have been

alleged, that, if proved true, would support a finding of

deliberate indifference. Id.

Finally, there can be no question that the right to ade-

quate and healthy ventilation was, and has been for some

time, a clearly established constitutional right at the time

of the Boards’ incarceration. For almost two decades this

court, as well as other circuit courts, have continually es-

poused a prisoner’s right to adequate ventilation. See

Shelby, 798 F.2d at 1087; Benjamin v. Fraser, 343 F.3d 35,

52 (2d Cir. 2003); Chandler v. Baird, 926 F.2d 1057, 1065

(11th Cir. 1991); Carver v. Knox County, 887 F.2d 1287,

1293 (6th Cir. 1989). In addition, the Supreme Court has

also routinely held that such a right is squarely rooted in

11

Washington v. Laporte County Sheriff ’s Dept., 306 F.3d 515, 518

(7th Cri. 2002) (quoting Case v. Ahitow, 301 F.3d 605, 607 (7th

Cir. 2002)).

No. 03-2628 29

Eighth Amendment principles. See Helling, 509 U.S. at 34-

36. We therefore, hold that the district court also did not err

in denying the defendants-appellants qualified immunity on

their adequate ventilation claims.

III. CONCLUSION

While the Boards’ claims may ultimately fail, we hold

that they have presented more than sufficient evidence of

alleged constitutional violations to successfully resist a

grant of summary judgment to the defendant-appellants on

qualified immunity grounds; therefore, the district court’s

judgment is

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-5-05