Sain, Timothy v. Wood, Raymond

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3919

TIMOTHY SAIN,

Plaintiff-Appellee,

v.

RAYMOND WOOD,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 6394—Suzanne B. Conlon, Judge.

____________

ARGUED SEPTEMBER 27, 2007—DECIDED JANUARY 9, 2008

____________

Before BAUER, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. Timothy Sain has been civilly

committed to the custody of the Illinois Department of

Human Services (“IDHS”) since 2000. Dr. Raymond

Wood, the defendant, is one of several individuals whom

Mr. Sain sued under 42 U.S.C. § 1983, claiming that his

conditions of confinement violate the Fourteenth Amend-

ment. Dr. Wood moved for summary judgment on the

ground of qualified immunity. The district court denied

his summary judgment motion, and Dr. Wood appeals

the denial of qualified immunity. For the reasons set

forth in this opinion, we reverse the judgment of the

2 No. 06-3919

district court and remand the case for proceedings con-

sistent with this opinion.

I

BACKGROUND

A.

Timothy Sain, a repeat sex offender, was civilly com-

mitted to the custody of the IDHS under the Sexually

Violent Persons Commitment Act, 725 ILCS 207/1. From

2000 to 2006, Mr. Sain was held at the Department’s Joliet

Treatment and Detention Facility. Mr. Sain is HIV positive,

and he has a history of sexual interactions with other

inmates.

Dr. Raymond Wood was employed by Liberty Health-

care Corporation, a private organization, as the clinical

director of the Joliet facility. He was the physician in

charge of the treatment program for residents found to

be sexually violent under Illinois law. As the clinical

director, he did not have responsibility for the physical

building or room assignments, although he did serve

occasionally on the rooming committee. Issues regard-

ing the room conditions generally were handled by the

IDHS Facilities Director, Tim Budz.

The Joliet facility is comprised of two units: a new unit,

built in 2001, and an old unit, built in the late 1800s. Mr.

Sain was housed in the old unit. The cells in the old unit

are small and contain two bunks, a sink, a toilet and

a small window. The paint was chipping off the walls of

Mr. Sain’s room, and the outdated plumbing in the unit

No. 06-3919 3

emitted a foul odor.1 The cells in the old unit also are not

air conditioned. Residents cannot control the temperature

of their cells in the heat of summer, and Mr. Sain’s cell

often became very hot. Residents were told to open their

windows for ventilation, but some windows, including

Mr. Sain’s, did not have screens. Opening the window

allowed bees, wasps and spiders to come into his cell.

Even during the winter, Mr. Sain’s cell was infested

with roaches. He claims that he saw roaches crawling

around his cell, coming from under his bed and out of

cracks in the wall and sink. He also states that he was

bitten several times and was treated for bites by the facility

physician.2 An exterminator visited the Joliet facility on

a regular basis, however, and he frequently sprayed

Mr. Sain’s room.

Mr. Sain alleges that he repeatedly requested to be

moved to the air conditioned new unit. Each time his

request was considered, however, it was denied by the

facility’s rooming committee. A variety of reasons were

given for the denials, including Mr. Sain’s HIV-positive

status, his history of sexual interactions with other resi-

dents and his failure to participate in sex-offender treat-

ment. Dr. Wood, as clinical director, was a member of the

rooming committee and attended placement meetings on

1

In both the old and new units, water was supplied by a Joliet

facility well. The water smelled foul and was brown in color.

Mr. Sain’s complaint alleged health violations involving the

water; Dr. Wood was not included in that count, however, and

Mr. Sain maintains that he is not suing Dr. Wood based upon

his problems with the drinking water.

2

His physician testified that he in fact had treated Mr. Sain,

but he could not recall finding any evidence of a bite.

4 No. 06-3919

occasion; it is unknown, however, whether he was present

at the meetings in which Mr. Sain’s requests were dis-

cussed.

Mr. Sain claims that he wrote a letter to Dr. Wood

regarding the conditions in his cell, including the roaches,

flies, bees, wasps, spiders, water odor and falling paint

chips. Additionally, Mr. Sain alleges that he had a face-to-

face discussion with Dr. Wood about his desire to move,

although he admitted that he did not tell Dr. Wood that

the reason he wanted to move to the new unit was re-

lated to the conditions of his room. He also did not men-

tion bugs or water quality in this conversation. Mr. Sain

also sent a number of official requests to speak with

Dr. Wood, but they were each denied, and his com-

plaints presumably were forwarded to his primary case-

worker according to facility policy.

No letter to Dr. Wood from Mr. Sain ever was produced,

and Dr. Wood denies ever seeing any such letter. He also

does not recall discussing Mr. Sain’s requests at any of the

few rooming committee meetings that he attended. Dr.

Wood claims that he does not remember any conversa-

tions with or letters from Mr. Sain, and that he was not

aware of the problems with Mr. Sain’s living conditions.

Such complaints generally were handled by a patient’s

primary caseworker.

B.

Mr. Sain sued Dr. Wood and a number of other Joliet

officials for violations of his Fourteenth Amendment due

process rights. Dr. Wood moved for summary judg-

ment, contending that Mr. Sain had not produced any

evidence showing that Dr. Wood had known of Mr. Sain’s

No. 06-3919 5

conditions of confinement or that Dr. Wood had been

deliberately indifferent to his plight. Additionally, Dr.

Wood contended that he was entitled to qualified immu-

nity.

The district court concluded that the evidence presented,

viewed in the light most favorable to Mr. Sain, could

support a reasonable inference that: (1) Dr. Wood knew

of Mr. Sain’s conditions of confinement, (2) Dr. Wood

could have addressed his complaints by moving him to

the new facility, and (3) his decision not to do so ex-

hibited deliberate indifference. Therefore, a genuine issue

of material fact existed for trial.

The district court also denied Dr. Wood’s invocation

of qualified immunity. It stated:

The Supreme Court articulated a well-established

constitutional right to humane conditions of confine-

ment . . . . Woods [sic] was clinical director of the Joliet

facility. He supervised the associate clinical director

and indirectly supervised the clinical staff. As the

individual with the highest level of clinical responsibil-

ity, a reasonable person in Woods’ [sic] position

would have known Sain’s purported living condi-

tions were a constitutional deprivation. Wood is not

entitled to qualified immunity under Harlow v. Fitzger-

ald, 457 U.S. 800, 818 (1982).

Sain v. Budz, 2006 WL 2796467 at *7 (N.D. Ill. 2006) (internal

citations omitted). Accordingly, the court denied Dr.

Wood’s request for summary judgment. Dr. Wood now

appeals the district court’s refusal to grant him qualified

immunity.

6 No. 06-3919

II

DISCUSSION

A.

Generally, this court lacks jurisdiction under 28 U.S.C.

§ 1291 to review a district court’s denial of summary

judgment. An exception to the final judgment rule exists,

however, for defendants requesting summary judgment

based on qualified immunity. Via v. LaGrand, 469 F.3d

618, 622 (7th Cir. 2006). Under the “collateral order doc-

trine,” a denial of qualified immunity “is an immediately

appealable ‘final decision’ . . . to the extent that it turns

on legal rather than factual questions.” Id.

Inviting our attention to Johnson v. Jones, 515 U.S. 304

(1995), Mr. Sain contends that we lack jurisdiction over

Dr. Wood’s qualified immunity appeal because it in-

volves a mixed question of fact and law rather than an

“abstract question of law.” See id. at 317. Johnson held

that a party “may not appeal a district court’s summary

judgment order insofar as that order determines whether

or not the pre-trial record sets forth a genuine issue of fact

for trial.” 515 U.S. at 319-20. Dr. Wood allocates a signifi-

cant number of pages in his brief to parsing the facts

regarding his knowledge of the allegedly inhumane

conditions; this approach, Mr. Sain contends, illustrates

that Dr. Wood is asking us to resolve genuine issues of

material fact contrary to the Supreme Court’s holding in

Johnson.

Mr. Sain’s reading of Johnson has been rejected on

numerous occasions, by both the Supreme Court and this

court. See, e.g., Behrens v. Pelletier, 516 U.S. 299, 312-13

(1996); McKinney v. Duplain, 463 F.3d 679, 686-91 (7th Cir.

2006); Via, 469 F.3d at 623. It is well settled that Johnson did

No. 06-3919 7

not prohibit appellate review of a district court’s applica-

tion of law to facts—it merely prohibited an appellate

court from parsing the record to determine whether the

proffered evidence was sufficient to prove a material fact.

Behrens, 516 U.S. at 312-13 (“Denial of summary judg-

ment often includes a determination that there are con-

troverted issues of material fact . . . , and Johnson surely

does not mean that every such denial of summary judg-

ment is nonappealable.”). Johnson addresses only those

cases in which the issue on appeal is “nothing more than

whether the evidence could support a finding that par-

ticular conduct occurred.” Id. Johnson does not preclude

appellate review of a district court’s legal application,

even if the court’s decision necessarily involves mixed

questions of fact and law. See, e.g., Sallenger v. Oakes,

473 F.3d 731, 738-39 (7th Cir. 2007) (engaging in a “totality

of the circumstances” inquiry into the reasonableness of

a seizure); Knox v. Smith, 342 F.3d 651, 657 (7th Cir.

2003) (accepting jurisdiction because “probable cause [and

by analogy, reasonable suspicion] is normally a mixed

question of law and fact, but where, as here, one side

concedes the other’s facts as to what happened, it is a

question of law”).

For the purpose of this appeal, Dr. Wood can assume

Mr. Sain’s version of the facts—specifically, that Dr.

Wood had actual knowledge of Mr. Sain’s living condi-

tions and the ability to address them—but he may still

maintain that his subsequent refusal to order relocation

in those circumstances did not amount to legally action-

able deliberate indifference. McKinney, 463 F.3d at 688

(“[T]he real question was whether, taking the facts as

assumed by the district court, [defendant’s] actions vio-

lated the Constitution.”). Whether Dr. Wood knew of

8 No. 06-3919

Mr. Sain’s living conditions is a disputed question of

fact, but for the purpose of this inquiry, we shall accept

the plaintiff’s assertions of actual knowledge. Whether

Dr. Wood’s actions based on that knowledge amounted

to deliberate indifference is a mixed question of fact and

law properly resolved by this court. Therefore, we have

jurisdiction over this appeal.

B.

For the first time on appeal, Mr. Sain contends that

Dr. Wood is not a state actor, and therefore he is not

entitled to invoke qualified immunity. He relies on Richard-

son v. McKnight, 521 U.S. 399, 412 (1997), which held that

privately employed prison guards could not receive

qualified immunity because they were not public officials

for the purposes of the qualified immunity doctrine.

Similarly, Mr. Sain submits, because Dr. Wood is em-

ployed by Liberty Healthcare, a private firm managing

the Joliet detention facility, he is not entitled to invoke

qualified immunity.

Richardson involved private prison guards employed

by a large firm specializing in providing security for

correctional facilities. The guards, although they were

not directly employed by the government, contended

that they should enjoy qualified immunity because they

performed the same functions as state prison guards,

who did receive immunity. The Court rejected this “func-

tional approach.” Id. at 408-09. Instead, it looked at the

two purposes underlying government employee im-

munity to determine whether immunity should be ex-

tended to private employees performing public or quasi-

public functions. These factors were: (1) a “firmly rooted”

No. 06-3919 9

tradition of immunity, and (2) the “special policy con-

cerns involved in suing governmental officials,” 521 U.S.

at 404, namely “protecting the public from unwarranted

timidity on the part of public officials” and ensuring

that “talented candidates were not deterred by the threat

of damages suits from entering public service,” id. at 408.

The Court in Richardson concluded that no firmly rooted

tradition of immunity existed for a private prison guard,

an occupation that had been in existence in a private

capacity (and without immunity) throughout most of our

Nation’s history. Id. at 407. Additionally, it found that the

special policy considerations justifying government

employee immunity were not present in that case: The

threat of competition from other organized private cor-

rections firms would prevent unwarranted timidity

from the guards, and readily available insurance and

private compensation packages ensured that talented

employees would not be deterred by this type of service.

Id. at 409-13.

The Court specifically noted, however, that its deter-

mination in Richardson was limited to the facts of that case,

in which “a private firm, systematically organized to

assume a major lengthy administrative task . . . with

limited direct supervision by the government, undertakes

that task for profit and potentially in competition with

other firms.” Id. at 413. It further clarified: “The case does

not involve a private individual briefly associated with a

government body, serving as an adjunct to government

in an essential governmental activity, or acting under

close official supervision.” Id.

Prior to 1997, we twice granted qualified immunity to

privately employed prison psychologists because they

were performing a government function. Williams v.

10 No. 06-3919

O’Leary, 55 F.3d 320, 324 (7th Cir. 1995); Sherman v. Four

County Counseling Ctr., 987 F.2d 397, 405-06 (7th Cir. 1993).

However, we have no comparable post-Richardson cases,

and Richardson specifically rejected the “public function”

analysis. 521 U.S. at 408-09. The law in this circuit is

therefore far from conclusive on this question.

Other circuits have encountered cases involving

similar circumstances, however, and have determined

that certain private medical personnel working in public

facilities are not entitled to qualified immunity under

Richardson. In Jensen v. Lane County, 222 F.3d 570, 576-79

(9th Cir. 2000), the Ninth Circuit held that a contract

psychiatrist in a county facility was not entitled to im-

munity because: (1) there was no firmly rooted tradition

of immunity for psychiatrists, (2) private market forces

operate to ensure psychiatrists adequately perform their

duties, or fear replacement, (3) the psychiatrist’s role in

that case was a complex administrative task rather than

a discrete public service task, and (4) the threat of dis-

traction by lawsuits was insufficient because private

psychiatrists often deal with such lawsuits. Id. at 577-79. In

Hinson v. Edmond, 192 F.3d 1342 (11th Cir. 1999), the

Eleventh Circuit, following the same Richardson analysis,

held that the privately contracted medical director of a

county jail was not entitled to qualified immunity. Id. at

1346-47. The court emphasized that the physician had a

good degree of autonomy in his medical treatment and

policies, external market forces would ensure adequate

treatment, and private salaries and insurance would

prevent deterrence of qualified candidates. There are

two First Circuit cases reaching an opposite conclusion;

however, both failed to cite Richardson, and their analysis

of the issue was cursory. See Burke v. Town of Walpole,

No. 06-3919 11

405 F.3d 66, 88 (1st Cir. 2005); Camilo-Robles v. Hoyos,

151 F.3d 1, 10 (1st Cir. 1998).

It is extremely difficult to apply the Richardson stand-

ard to the facts of this case. This difficulty stems not only

from the lack of Seventh Circuit guidance on the issue,

but also from the lack of relevant factual development

in the record. The history of sex offender detention pro-

grams in Illinois, the extent of Liberty’s control over the

facility, the details of its interaction with the state, and the

robustness of market competition in Liberty’s field are

not readily ascertainable, either from the district court’s

opinion or from the record. Dr. Wood attempts to ad-

dress these issues in his reply brief, claiming that he had

limited autonomy under the relevant statute, that he

served as an adjunct to IDHS, and that no competitive

market exists for his specific type of “sexually violent

persons” specialty. The sparse record, however, neither

supports nor negates these assertions.

This dearth of information in the record stems directly

from Mr. Sain’s failure to contest Dr. Wood’s assertion of

qualified immunity before the district court. In fact, de-

spite numerous opportunities to do so, there was never

a mention of Dr. Wood’s status as a private contractor

until Mr. Sain’s brief on appeal. The parties and the dis-

trict court apparently assumed that Dr. Wood was an

appropriate party to assert qualified immunity; the briefs to

the district court, as well as the district court’s decision,

discussed only whether Dr. Wood had disqualified himself

from immunity by violating a clearly established constitu-

tional right. Because the issue of Dr. Wood’s status as a

private employee was never raised at the district level, the

record is silent on the facts necessary to determine whether

he nevertheless may invoke qualified immunity under

Richardson.

12 No. 06-3919

Mr. Sain’s failure to raise at the district court level the

issue of Dr. Wood’s ineligibility for qualified immunity

because of his private employment resulted in a for-

feiture of the argument, which we review only for plain

error. See, e.g., United States v. Thigpen, 456 F.3d 766, 769

(7th Cir. 2006). Given the absence of any record addressing

Richardson’s multi-factored test, the district court did not

commit plain error in assuming (albeit implicitly) that

Dr. Wood was entitled to assert qualified immunity.

We therefore decline to address the merits of this argu-

ment and assume, for the purpose of this case only, that

Dr. Wood is entitled to assert qualified immunity. See

Perez v. Oakland County, 466 F.3d 416 (6th Cir. 2006) (adopt-

ing a similar approach).

C.

Governmental and quasi-governmental actors perform-

ing discretionary functions are “shielded from liability

for civil damages insofar as their conduct does not vio-

late clearly established statutory or constitutional rights

of which a reasonable person would have known.”

Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v.

Katz, 533 U.S. 194, 200 (2001), the Supreme Court articu-

lated a two-part test for determining whether an actor

is entitled to qualified immunity: (1) “Taken in the light

most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a con-

stitutional right?” (2) “If a violation could be made out on

a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly

established.” Id. at 201. We review de novo a district

No. 06-3919 13

court’s denial of summary judgment on qualified immunity

grounds. Sallenger, 473 F.3d at 739.

As a civilly committed detainee, Mr. Sain is protected

by the Due Process Clause of the Fourteenth Amend-

ment. Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th

Cir. 1998). His protection against cruel and inhumane

treatment has been defined as at least as extensive as that

afforded to prisoners by the Eighth Amendment. Id.; see

also Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005) (apply-

ing Eighth Amendment analysis to a section 1983 claim

brought by a Joliet facility resident awaiting a civil com-

mitment trial). The Eighth (and Fourteenth) Amendment

requires that Mr. Sain be housed under “humane condi-

tions” and provided with “adequate food, clothing,

shelter, and medical care.” Farmer v. Brennan, 511 U.S.

825, 832 (1994). To show a constitutional violation and

defeat Dr. Wood’s invocation of qualified immunity, Mr.

Sain must prove both (1) that he suffered a sufficiently

serious deprivation and (2) that Dr. Wood acted with

“deliberate indifference” to his conditions of confine-

ment. Id. at 837.

Mr. Sain contends that his conditions of confinement

amounted to a sufficiently serious deprivation. Specifically,

he submits that the peeling paint, foul odor and lack of air-

conditioning in his cell, his inability to open his window

without letting in bugs, and a cockroach infestation in

the unit amounted to inhumane treatment in violation of

the Fourteenth Amendment.

Mr. Sain relies upon Board v. Farnham, 394 F.3d 469 (7th

Cir. 2005), for his assertion that poor ventilation may

amount to a constitutional deprivation. However, this

case involved toxic mold in air ducts and evidence of

severe nosebleeds and respiratory problems, conditions

14 No. 06-3919

far more serious than those alleged by Mr. Sain. Similarly,

his suggestion that the lack of air-conditioning is a

serious deprivation relies on a case involving sub-

stantially different circumstances—there, a failure to

provide working heat for an extended period of time in

extremely cold temperatures. See Henderson v. DeRobertis,

940 F.2d 1055 (7th Cir. 1991). The peeling paint or an

unpleasant odor in a cell described in this record, along

with the absence of any evidence of serious injury, does

not amount to constitutional deprivation.

Mr. Sain also contends that the cockroaches in his cell

were so unsanitary that they established inhumane living

conditions. We have held that a prolonged pest infestation,

specifically a significant infestation of cockroaches and

mice, may be considered a deprivation sufficient to con-

stitute a due process violation. Antonelli v. Sheahan, 81 F.3d

1422, 1431 (7th Cir. 1996). In Antonelli, however, we empha-

sized that “the allegation of sixteen months of infestation

and significant physical harm” distinguished his case from

the typical pest-infestation complaint. Id. Here, Mr. Sain

alleges that, during his approximately six-year confinement

in the old unit, he often saw “several” cockroaches crawl-

ing in his cell. R.113 at 5. He also alleges that he was bitten

by a cockroach twice during his time in detention. Id. He

concedes, however, that an exterminator regularly visited

his cell—every month or month and a half—and also

would come in response to Mr. Sain’s complaints. Id.

The conditions of Mr. Sain’s detention were certainly

unpleasant. The state deserves no praise for permitting

them to persist. However, we cannot say that, whether

considered individually or collectively, they constitute a

constitutional violation. To be considered a constitutional

violation, Mr. Sain’s deprivations must be “objectively

No. 06-3919 15

serious.” We conclude that a reasonable jury could not

conclude that Mr. Sain’s conditions of confinement

were objectively serious enough to establish a constitu-

tional violation.

Even if Mr. Sain were able to show that his conditions

of confinement were sufficiently serious to establish a

constitutional deprivation, he must also show that Dr.

Wood’s failure to transfer him into the new unit was a

result of “deliberate indifference.” The test for deliberate

indifference is a subjective one: The official must “both be

aware of the facts from which the inference could be

drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer, 511 U.S. at 837.

In the context of medical professionals, this standard

also has been described as the “professional judgment”

standard: A medical professional is entitled to deference in

treatment decisions unless “no minimally competent

professional would have so responded under those

circumstances.” Collignon v. Milwaukee County, 163 F.3d

982, 988 (7th Cir. 1998). A medical professional acting in

his professional capacity may be held to have displayed

deliberate indifference only if “the decision by the profes-

sional is such a substantial departure from accepted

professional judgment, practice, or standards, as to demon-

strate that the person responsible actually did not base the

decision on such a judgment.” Collignon, 163 F.3d at 988

(quoting Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982));

see also Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.

2006).

The district court concluded that Mr. Sain’s evidence that

Dr. Wood had knowledge of Mr. Sain’s conditions of

confinement, and that he had the ability to correct the

deprivations, was sufficient to survive summary judgment.

16 No. 06-3919

Even assuming that Dr. Wood knew of the conditions of

confinement and had the authority to remedy them, the

record does not support the conclusion that he acted

with deliberate indifference.

Mr. Sain focuses on Dr. Wood’s failure to transfer him to

the new unit, which was more sanitary and comfortable

than the old unit. The record reflects, however, that

Dr. Wood, in his professional judgment, decided that

transferring Mr. Sain to the new unit would contravene

his treatment objectives. Therefore, he chose to address

Mr. Sain’s pest-infestation complaints by regularly ex-

terminating his cell.

The record is undisputed that the rooms in the old unit

were regularly (in the plaintiff’s words, “frequently”)

exterminated. R.113 at 5. Although we have held that an

occasional extermination (twice in sixteen months) does

not, by itself, negate a showing of deliberate indifference,

Antonelli, 81 F.3d at 1431, the policy of “frequent” extermi-

nations in this case, made monthly and in response to

plaintiff’s requests, certainly cannot support a claim of

deliberate indifference here.

Additionally, substantial and uncontroverted evidence

in the record shows that Mr. Sain’s requests to transfer

to the new unit were denied on the basis of permissible,

professional justifications. Dr. Wood testified that patients’

requests to transfer to the new unit often were denied

because of a facility policy that kept those detainees

who refused to participate in sex-offender treatment in the

old unit. Transfers to the new unit were used as a re-

No. 06-3919 17

ward—an incentive to participate in treatment programs.3

Mr. Sain admits that this policy was the explanation

given to him after each of his requests for removal, and

that he nevertheless refused to participate in treatment.

Moreover, Mr. Sain was HIV positive and had been

sexually aggressive. Most rooms in the new unit were

double-occupancy rooms. It is certainly within the bounds

of reasonable professional judgment to avoid transferring

an HIV-positive patient with a history of impermissible

sexual behavior with other inmates to a room with another

detainee. Mr. Sain offers no evidence to show that this

justification was a sham or otherwise impermissible.

In sum, even assuming that Dr. Wood knew of Mr. Sain’s

complaints about the heat, bugs, paint chips and foul

odor, undisputed evidence in the record shows that

Dr. Wood’s refusal to transfer Mr. Sain was not indicative

of “deliberate indifference.” Instead, the decision to house

Mr. Sain in the old unit (to the extent that Dr. Wood was

involved in this decision) was based on a professional

judgment as clinical director of the Joliet facility that

we cannot say amounted to deliberate indifference. There-

fore, even if his living conditions were sufficiently

serious to constitute a constitutional violation, Dr. Wood

was not deliberately indifferent and therefore cannot be

3

See, e.g., Bd. v. Farnham, 394 F.3d 469, 477 (7th Cir. 2005)

(“[C]onditions of confinement which are reasonably related

to a legitimate and non-punitive government goal are not

unconstitutional, and we caution that this court will give a

high degree of deference to the discretion of prison administra-

tion to adopt policies and practices to maintain the safety and

security of this country’s penitentiaries.”) (internal quotations

omitted).

18 No. 06-3919

held to have violated Mr. Sain’s clearly-established con-

stitutional rights.

Conclusion

The judgment of the district court is reversed, and the

case is remanded for further proceedings consistent

with this opinion.

REVERSED and REMANDED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-9-08