Tapanga Hardeman v. David Wathen

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-2672

TAPANGA HARDEMAN, et al.,

Plaintiffs-Appellees,

v.

SHERIFF MARK CURRAN, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 8729 — Sharon Johnson Coleman, Judge.

____________________

ARGUED MARCH 25, 2019 — DECIDED AUGUST 12, 2019

____________________

Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit

Judges.

WOOD, Chief Judge. Water is vital for both health and sani-

tation. Dehydration affects practically every life function, in-

cluding temperature regulation, digestion, brain function,

toxin elimination, and oxygen distribution. See Jon Johnson,

“Effects of having no water,” MEDICAL NEWS TODAY,

https://www.medicalnewstoday.com/articles/325174.php

2 No. 18-2672

(last visited July 19, 2019). After a few days, total deprivation

of water can be fatal. Id. Basic sanitation is also essential.

The plaintiffs in this case, all pretrial detainees at the Lake

County Adult Correctional Facility, allege that they were

forced to learn this lesson the hard way. For approximately

three days in 2017, the jail officials shut off all water in their

jail without any warning. With no running water, the plain-

tiffs had only limited water that the defendants provided for

their personal and sanitation uses. As a result, they became ill

and feces built up and festered in the jails’ toilets, attracting

insects. When plaintiffs asked for more water, they were

locked down in their cells as punishment. The pretrial detain-

ees responded with this putative class action, in which they

alleged that the defendants violated their Fourteenth Amend-

ment due process rights. Defendants moved to dismiss on the

ground of qualified immunity. The district court denied their

motion, and this interlocutory appeal followed. We agree

with the district court’s decision and affirm.

I

Because this case comes to us as a motion to dismiss as-

serting qualified immunity, we accept all well pleaded factual

allegations in the complaint as true and draw all reasonable

inferences in the plaintiffs’ favor. Reed v. Palmer, 906 F.3d 540,

546 (7th Cir. 2018).

Defendants Lake County Sheriff Mark Curran and Chief

of Corrections David Wathen oversee the Lake County Adult

Correctional Facility. (We refer to them, as well as the various

yet-unnamed defendants, collectively as “Wathen.”) At the

time of these events, plaintiffs (all pretrial detainees) were

housed there. On November 7, 2017, Wathen shut off the

No. 18-2672 3

water at the jail. He did not forewarn any of the detainees that

this shutoff was going to happen. The complaint does not re-

veal why Wathen shut off the water, although he avers in his

briefing that he did so in order to replace a water booster

pump.

During the shutoff, the detainees were not totally without

water. Wathen provided them with five bottles (of indetermi-

nate size) of water per day for their personal use. These five

bottles were all that the detainees were given to drink, brush

their teeth, wash their hands and faces, and take medication.

When individual detainees asked for more water, they were

refused. If a person repeatedly asked for more water, he was

put on lockdown.

Wathen also provided a barrel of water (again, of unclear

size) to each communal area, called a pod, within the jail. The

barrel of water in each pod was to be used for bathing, clean-

ing the pod’s cells, and flushing toilets within the cells. But

not all flushing: the detainees were instructed to flush only

when feces were present. They were forbidden to flush at all

during the night.

Unfortunately, these arrangements for flushing were a

failure, in that they often did not clear the toilets. This led to

feces and urine sitting in toilets throughout the jail for pro-

longed periods of time. This was no small issue, as the jail has

a capacity of approximately 740 inmates. There were thus

hundreds of toilets holding feces and urine. Unsurprisingly,

the continuous presence of excrement produced a powerful

and putrid smell. Insects were also attracted to the unflushed

feces.

4 No. 18-2672

The plaintiffs and other detainees say that these conditions

were disgusting and caused them tangible harm. They allege

that they became “sick, sleep deprived, and agitated” because

of the continuous presence of excrement in their cells; that

they were not provided with enough water to take needed

medications; and that the lack of drinking water and unsani-

tary conditions caused numerous ailments, including “dehy-

dration, migraine headaches, sickness, dizziness, constipa-

tion, and general malaise.” Three days later, on November 10,

2017, the water shutoff ended.

II

Because this appeal comes to us after a denial of qualified

immunity, we must answer two questions: first, whether the

constitutional right asserted by the plaintiffs was clearly es-

tablished at the time the defendants acted; and second,

whether defendants’ actions violated that clearly established

right. Reed, 906 F.3d at 546. “‘If either inquiry is answered in

the negative, the defendant official’ is protected by qualified

immunity.” Id. (quoting Green v. Newport, 868 F.3d 629, 633

(7th Cir. 2017)). Our review is de novo. Id.

When attempting to defeat an assertion of qualified im-

munity, the burden is on the plaintiffs to show that a particu-

lar right is “clearly established.” To meet that burden, a plain-

tiff’s asserted right must be defined “at the appropriate level

of specificity.” Wilson v. Layne, 526 U.S. 603, 615 (1999). “The

Supreme Court has ‘repeatedly told lower courts … not to de-

fine clearly established law at a high level of generality.’” Reed,

906 F.3d at 548 (quoting Volkman v. Ryker, 736 F.3d 1084, 1090

(7th Cir. 2013) (alteration in original)). An appropriately de-

fined right is clearly established if there is a closely analo-

gous—though not necessarily identical—case identifying that

No. 18-2672 5

right, or if “the defendant’s conduct was ‘so egregious and

unreasonable that … no reasonable [official] could have

thought he was acting lawfully.’” Id. (alteration in original)

(quoting Abbott v. Sangamon Cnty., 705 F.3d 706, 724 (7th Cir.

2013)). “The dispositive question ‘is whether the violative na-

ture of particular conduct is clearly established.’” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011)).

A

Plaintiffs here focus on two conditions that they allege vi-

olated their clearly established rights: the denial of the mini-

mal amount of water needed for necessary activities of life,

and the deprivation of the basic sanitary measure of prevent-

ing the build-up of feces, which forced plaintiffs to be sur-

rounded by their own and others’ excrement. Both of these

claims describe conditions of confinement that courts have

long recognized as potential constitutional violations. It has

been clearly established for decades that prisons must pro-

vide inmates with “the minimal civilized measure of life’s ne-

cessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). We have

interpreted this general statement as a requirement that pris-

ons provide inmates with “reasonably adequate ventilation,

sanitation, bedding, hygienic materials, and utilities.” Gray v.

Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (quoting Lewis v.

Lane, 816 F.2d 1165, 1171 (7th Cir. 1987)); see also Woods v.

Thieret, 903 F.2d 1080, 1082 (7th Cir. 1990) (“Clearly, prison

officials have a responsibility to provide inmates with a min-

ima of food, shelter and basic necessities.”).

Wathen argues that despite the generally well-established

nature of these rights, the circumstances of this case—a non-

total deprivation caused by a three-day planned water

6 No. 18-2672

shutdown—take us into novel territory. But what is so new

about it? All but the most plainly incompetent jail officials

would be aware that it is constitutionally unacceptable to fail

to provide inmates with enough water for consumption and

sanitation over a three-day period. Perhaps an official would

be excused for miscalculating the amount of water needed ex

ante, so long as he worked to fix the problem once it mani-

fested. But that is not the case before us. According to plain-

tiffs’ allegations, Wathen provided a limited amount of water,

he and his staff were quickly made aware that more water was

needed both for consumption and for sanitation, and they

failed to provide any additional water. Indeed, plaintiffs al-

lege that Wathen punished them for continued water re-

quests.

The conditions that plaintiffs depict are very similar to

those we have seen in previous cases, in both duration and

severity. In Woods v. Thieret, we stated that an allegation of

three days without food (more specifically, one full day with-

out food, sandwiched between days without dinner or break-

fast) stated a claim for a violation of the Eighth Amendment.

903 F.2d at 1082. In Johnson v. Pelker, 891 F.2d 136 (7th Cir.

1989), we reversed a grant of summary judgment for the de-

fendants because “placing a prisoner in a cell for three days

without running water and in which feces are smeared on the

walls while ignoring his requests for cleaning supplies” could

violate the Eighth Amendment. Id. at 139. Similarly, a number

of our sister circuits have recognized that days-long depriva-

tions of water and continued exposure to human excrement

can violate the Eighth Amendment. See DeSpain v. Uphoff, 264

F.3d 965, 974–75 (10th Cir. 2001) (stating that “[e]xposure to

human waste, like few other conditions of confinement,

evokes both the health concerns emphasized in Farmer [v.

No. 18-2672 7

Brennan, 511 U.S. 825 (1994),] and the more general standards

of dignity embodied in the Eighth Amendment,” and collect-

ing cases with similar holdings from the Second, Fifth, Sev-

enth, and Eighth Circuits dating back to 1972); Dellis v. Correc-

tions Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001) (holding

that a plaintiff “given only two half pints of milk and one six-

teen and one-half ounce bottle of water” over three days

stated an Eighth Amendment claim); Johnson v. Lewis, 217 F.3d

726, 732 (9th Cir. 2000) (finding allegations of inadequate

drinking water over four days, along with other deprivations,

sufficient to state an Eighth Amendment claim).

We recently reaffirmed in Budd v. Motley that conditions-

of-confinement cases often involve “a mutually enforcing ef-

fect that produces the deprivation of a single, identifiable hu-

man need.” 711 F.3d 840, 843 (7th Cir. 2013) (quoting Wilson

v. Seiter, 501 U.S. 294, 304 (1991)). That is the case here. Draw-

ing reasonable inferences in plaintiffs’ favor, as we must at

this stage, problems caused by limited drinking water may

have been exacerbated by the lack of water for sanitation and

the consequent exposure to feces and insects. The rights that

plaintiffs identify—to have enough water for drinking and

sanitation, and not to be forced to live surrounded by their

own and others’ excrement—are thus clearly established.

B

Wathen argues that his motive for shutting off the water is

important, but that is so only if there is a subjective element

to the plaintiffs’ case. As we now explain, that would be true

if they were convicted prisoners, but it is not for pretrial de-

tainees. Courts more commonly see suits of this nature

brought by prisoners, whose rights are rooted in the Eighth

Amendment’s prohibition on cruel and unusual punishment.

8 No. 18-2672

Pretrial detainees are in a different position, because their de-

tention is unrelated to punishment. Kingsley v. Hendrickson,

135 S. Ct. 2466, 2475 (2015). Pretrial detainees may assert a

conditions-of-confinement claim under the Fourteenth

Amendment’s Due Process Clause. Id. at 2473.

For many years, we analyzed pre-conviction Fourteenth

Amendment and post-conviction Eighth Amendment

conditions-of-confinement claims under the same standard:

that of the Eighth Amendment, which has both a subjective

and an objective component. Farmer, 511 U.S. at 834. On the

subjective side, we asked in both types of cases whether the

defendant was deliberately indifferent “to adverse conditions

that deny ‘the minimal civilized measure of life’s necessities.’”

Budd, 711 F.3d at 842 (quoting Farmer, 511 U.S. at 834); see also

Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010) (also

equating pretrial detainees to convicted prisoners). The

Supreme Court put a halt to that equation, however, when it

indicated that the interests of pretrial detainees and prisoners

derive from separate sources and must be assessed

differently. See Kingsley, 135 S. Ct. at 2473. The Court

elaborated its reasoning as follows:

[T]he appropriate standard for a pretrial detainee’s ex-

cessive force claim is solely an objective one. For one

thing, it is consistent with our precedent. We have said

that “the Due Process Clause protects a pretrial de-

tainee from the use of excessive force that amounts to

punishment.” Graham [v. Connor, 490 U.S. 386,] 395, n.

10 [(1989)]. And in Bell [v. Wolfish], we explained that

such “punishment” can consist of actions taken with

an “expressed intent to punish.” 441 U.S. [520,] 538

[(1979)]. But the Bell Court went on to explain that, in

No. 18-2672 9

the absence of an expressed intent to punish, a pretrial

detainee can nevertheless prevail by showing that the

actions are not “rationally related to a legitimate non-

punitive governmental purpose” or that the actions

“appear excessive in relation to that purpose.” Id., at

561. The Bell Court applied this latter objective stand-

ard to evaluate a variety of prison conditions, includ-

ing a prison’s practice of double-bunking.

Id.

It is true that Kingsley directly addressed only claims of ex-

cessive force, and so some circuits have understood its hold-

ing to be confined to those facts. See Miranda v. Cnty. of Lake,

900 F.3d 335, 352 (7th Cir. 2018) (collecting cases). We, how-

ever, have not taken that approach. Recognizing “that the Su-

preme Court has been signaling that courts must pay careful

attention to the different status of pretrial detainees,” we have

held that a pretrial detainee’s claims of inadequate medical

care “are subject only to the objective unreasonableness in-

quiry identified in Kingsley.” Id.

The plaintiffs in this case suggest that we should extend

Kingsley further from the medical context to the general

conditions-of-confinement problem we have here. We see no

principled reason not to do so. To the contrary, as we

recognized in Miranda, there is “nothing in the logic the

Supreme Court used in Kingsley that would support this kind

of dissection of the different types of claims that arise under

the Fourteenth Amendment’s Due Process Clause.” Id. The

Supreme Court has also said that medical care is simply one

of the many conditions of confinement to which an

imprisoned person is subjected. Wilson, 501 U.S. at 303

(“Indeed, the medical care a prisoner receives is just as much

10 No. 18-2672

a ‘condition’ of his confinement as the food he is fed, the

clothes he is issued, the temperature he is subjected to in his

cell, and the protection he is afforded against other inmates.”).

As we recognized in Miranda, several of our sister circuits

have viewed Kingsley’s holding as establishing that an objec-

tive inquiry applies to a variety of conditions-of-confinement

claims, not just those involving excessive force. Miranda, 900

F.3d at 351–52; see also Gordon v. Cnty. of Orange, 888 F.3d

1118, 1120, 1122–25 (9th Cir. 2018) (medical-need claim); Dar-

nell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017) (conditions of

confinement generally); Castro v. Cnty. of L.A., 833 F.3d 1060,

1070–71 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831

(2017) (failure-to-protect claim). Since Miranda was decided,

the Tenth Circuit has joined those that apply Kingsley’s objec-

tive inquiry to a claim other than excessive use of force. See

Colbruno v. Kessler, –––– F.3d ––––, No. 18-1056, 2019 WL

2751434, at *3–4 (10th Cir. July 2, 2019). Colbruno involved an

allegation that officers unnecessarily walked a pretrial de-

tainee nude through the public halls of a hospital when ac-

quiring clothing would have taken “at most a matter of

minutes,” and then handcuffed him to his hospital bed. Id. at

*1, *5. In applying Kingsley’s objective standard, the Tenth Cir-

cuit made no distinction between excessive force, the forced

unnecessary public nudity, the handcuffing to the hospital

bed, or any other condition or restriction that might violate

the Fourteenth Amendment. See id. at *6 (applying the Kings-

ley objective standard to both the nudity claim and the cuffing

claim).

Like the Second and Tenth Circuits, we see no doctrinal

reason to distinguish among different types of conditions-of-

confinement claims for purposes of applying Kingsley’s

No. 18-2672 11

objective standard. Neither the Supreme Court’s logic nor its

language suggests that such a distinction is proper. See Wil-

son, 501 U.S. at 303; Bell, 441 U.S. at 539 (“[I]f a restriction or

condition is not reasonably related to a legitimate goal—if it

is arbitrary or purposeless—a court permissibly may infer

that the purpose of the governmental action is punishment

that may not constitutionally be inflicted upon detainees qua

detainees.”); see also Miranda, 900 F.3d at 352. We therefore

hold that Kingsley’s objective inquiry applies to all Fourteenth

Amendment conditions-of-confinement claims brought by

pretrial detainees.

C

Though the right to water for drinking and personal sani-

tation, and the right to live in an environment free of accumu-

lated human waste is clearly established, we must still ensure

that plaintiffs have properly invoked that right in their com-

plaint. To survive a challenge under Rule 12(b)(6), a com-

plaint need plead only “enough facts to state a claim for relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). Qualified immunity may be appropriate at the

pleading stage “where the plaintiff asserts the violation of a

broad constitutional right that had not been articulated at the

time the violation is alleged to have occurred.” Jacobs v. City

of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000). But “the plain-

tiff is not required initially to plead factual allegations that an-

ticipate and overcome a defense of qualified immunity.” Id.

“Because a qualified immunity defense so closely depends ‘on

the facts of the case,’ a ‘complaint is generally not dismissed

under Rule 12(b)(6) on qualified immunity grounds.’” Reed,

906 F.3d at 548 (quoting Alvarado v. Litscher, 267 F.3d 648, 651

(7th Cir. 2001)).

12 No. 18-2672

A single clogged toilet does not violate the Constitution,

and prisoners are not entitled to Fiji Water on demand. But on

the other end of the spectrum, a defendant cannot purpose-

fully deny water until a prisoner is on the brink of death or

force a prisoner permanently to live surrounded by her own

excrement and that of others. The latter actions would be so

obviously unconstitutional that qualified immunity could not

protect the perpetrators. See McDonald by McDonald v.

Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (describing how qual-

ified immunity is inappropriate when government action is

“so egregious that no like case is on the books”). Our question

is thus whether the severity and duration of the conditions

Hardeman and the other plaintiffs allegedly experienced

were so significant that, if proved in the end, they violated the

Constitution.

This would be our conclusion even if we took into account

the County’s reason for shutting down the water. For present

purposes, we will assume that Wathen’s stated reason—that

a water booster pump needed to be replaced—is accurate. We

do note that he might not be entitled to this favorable assump-

tion, as the complaint makes no mention of why the water in

the jail was turned off. It is anyone’s guess what discovery will

reveal. Ensuring that repairs are done in a timely manner so

that a jail has clean water is an obviously legitimate govern-

mental objective. But regardless of the legitimacy of that ob-

jective, taking as true the conditions described in the com-

plaint, with the plausible inferences we may draw from them,

we find conditions of confinement that were objectively un-

reasonable and “excessive in relation to” any legitimate non-

punitive purpose. Kingsley, 135 S. Ct. at 2473 (quoting Bell, 441

U.S. at 561). They thus crossed outside of constitutional

bounds.

No. 18-2672 13

Some inconvenience was to be expected when Wathen

shut off the jail’s water. Yet, as we have stressed, the

conditions alleged by the plaintiffs went far beyond

inconvenience. Exposure to hundreds of unflushable toilets is

objectively unreasonable. See DeSpain, 264 F.3d at 974–75;

Johnson, 891 F.2d at 139; LaReau v. MacDougall, 473 F.2d 974,

978 (2d 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.”). This exposure,

and the stench it caused, was compounded as insects became

drawn to the standing feces and urine. Worse yet, inmates had

insufficient water to shower, to drink, to take medicines, to

brush their teeth, and to clean their living areas; complaining

about this lack of water was met with punishment. This

describes objectively unreasonable conditions for pretrial

detainees. See Woods, 903 F.2d at 1082; Dellis, 257 F.3d at 512;

Johnson, 217 F.3d at 732. It is also plausible that the grossly

unsanitary conditions throughout the jail were compounded

by inmates’ dehydration-induced weakness and illness,

thereby transforming what might otherwise have been a mere

inconvenience into a problem of constitutional magnitude.

See Budd, 711 F.3d at 843.

Wathen points to Tesch v. County of Green Lake, 157 F.3d 465

(7th Cir. 1998), to suggest that the conditions suffered by the

plaintiffs were not constitutionally suspect. Tesch was a pre-

trial detainee with muscular dystrophy. Id. at 467. Because of

his limited mobility, he could not obtain access to the sink in

his cell for drinking water. Id. at 469. He was, however, given

a beverage with each of his meals. Id. Tesch’s deprivation

lasted for less than two days. Id. We held that these conditions

were not so problematic as to violate the Constitution. Id. at

476. But Tesch is easily distinguishable. It applied the more

14 No. 18-2672

demanding Eighth Amendment deliberate-indifference

standard, as opposed to the objective inquiry that we apply

here. See id. at 474–75. In addition, Tesch alleged nothing that

exceeded “the general level of discomfort anyone can expect

to experience while in custody.” Id. at 476. By contrast, plain-

tiffs here allege an assortment of physical illnesses brought on

by water deprivation and appallingly unsanitary conditions

in the Lake County jail.

Finally, we note that because the water shutdown was

planned, none of these issues was unforeseeable or incurable.

Even cursory Internet research would have given Wathen a

general idea of how much water the jail would need to allow

the inmates to flush their toilets each day. And if Wathen

could not procure enough water to fix that problem, there was

a still more obvious solution: portable toilets. If, as the com-

plaint alleges, Wathen was able to transport thousands of bot-

tles of water (five per day for several hundred inmates) and

additional tubs of water into the jail, it is not clear why he

could not similarly import portable toilets into the jail. In-

deed, recognizing that a lack of indoor plumbing is a common

problem at campgrounds, county fairs, music festivals, and

other large gatherings, numerous companies have sprung up

to provide this exact service, including to government enti-

ties. See, e.g. Vendor, Contract, and Payment Search, Contract to

Service Sanitation, CITY OF CHICAGO, https://webapps1.chi-

cago.gov/vcsearch/city/contracts/24835 (showing “multiple

awards for rental and maintenance of portable chemical toi-

lets, sinks, waste water barrels, waterless hand sanitizer dis-

pensers and fresh water trailers” between 2011 and 2020).

Had a longer time for the outage been likely, Wathen perhaps

could have transported the affected inmates to another facility

until the Lake County jail’s repairs were completed. At the

No. 18-2672 15

least, Wathen should have known that he needed to procure

more water on the second and third days of the shutdown

than he supplied for the first.

We do not list these alternatives to suggest that Wathen

must have done one or more of these things to satisfy due pro-

cess. The Constitution is not so inflexible. Instead, we merely

note these examples to show that Wathen appears to have had

numerous options that would have allowed the alleged pump

repair without depriving the detainees of adequate water and

sanitation facilities in the interim. Whether the detainees can

prove what they have alleged, and what Wathen and his co-

defendants can show in response, remains to be seen.

III

“[W]hen the State by the affirmative exercise of its power

so restrains an individual’s liberty that it renders him unable

to care for himself, and at the same time fails to provide for

his basic human needs—e.g., food, clothing, shelter, medical

care, and reasonable safety—it transgresses the substantive

limits on state action set by the … Due Process Clause.”

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

200 (1989). The Supreme Court’s words apply with full force

here. Hardeman and the other plaintiffs allege that the Lake

County officials prevented them from caring for themselves

and then deprived them of the most basic of human needs—

water. The resulting alleged unsanitary conditions and phys-

ical harms were objectively unreasonable conditions of con-

finement that (if proven) violated the Fourteenth Amend-

ment’s due-process guarantee.

We thus AFFIRM the district court’s order denying the de-

fendants’ request for qualified immunity.

16 No. 18-2672

SYKES, Circuit Judge, concurring in the judgment. After

Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018), it

makes sense as a doctrinal matter to extend Kingsley’s objec-

tive standard to all conditions-of-confinement claims by

pretrial detainees. As my colleagues explain, when a jail

official harms a pretrial detainee, the constitutional right in

question is the Fourteenth Amendment’s guarantee of due

process, not the Eighth Amendment’s protection against

cruel and unusual punishment. In Kingsley v. Hendrickson,

135 S. Ct. 2466, 2470–71 (2015), the Supreme Court confront-

ed a pretrial detainee’s claim that jail officers used excessive

force against him. The Court explained that the plaintiff’s

due-process claim entailed two state-of-mind questions:

The first concerns the defendant’s state of mind

with respect to his physical acts—i.e., his state

of mind with respect to the bringing about of

certain physical consequences in the world.

The second question concerns the defendant’s

state of mind with respect to whether his use of

force was “excessive.”

Id. at 2472.

As to the first question, the Court reiterated the rule that

negligently inflicted harm is not actionable as a constitution-

al violation; rather, “the defendant must possess a purpose-

ful, a knowing, or possibly a reckless state of mind.” Id. That

point was not disputed; the officers did not deny that they

deliberately used force against the plaintiff. Id. As to the

second question—“the defendant’s state of mind with re-

spect to the proper interpretation of the force … that the

defendant deliberately (not accidentally or negligently)

used”—the Court ruled that the plaintiff need not establish

No. 18-2672 17

that the officers subjectively intended to use excessive force.

Id. Rather, at this step of the decision framework, the Court

held that an objective inquiry applies. Id. at 2472–73. A

pretrial detainee can prevail on an excessive-force claim by

proving that the force deliberately used against him was

objectively unreasonable—namely, by providing “objective

evidence that the challenged governmental action is not

rationally related to a legitimate governmental objective or

that it is excessive in relation to that purpose.” Id. at 2473–74.

In Miranda we extended Kingsley’s “objective unreasona-

bleness” standard to a claim that a pretrial detainee received

constitutionally inadequate medical care. 900 F.3d at 352–54.

We emphasized, however, that Kingsley retained the rule that

mere negligence is not a constitutional violation. Id. at 353–

54. Miranda involved the death of a mentally ill jail inmate

who refused food and water. Her estate sued the jail officials

and medical providers involved in her care. To prevail

against the medical providers, the estate was required to

prove that they “acted purposefully, knowingly, or per-

haps … recklessly when they considered the consequences

of their handling of [her] case.” Id. at 353. The estate’s evi-

dence was sufficient to support an inference that the medical

providers “made the decision to continue observing [the

inmate] in the jail, rather than transporting her to the hospi-

tal, with purposeful, knowing, or reckless disregard of the

consequences.” Id. at 354. Accordingly, we held that “a jury

must decide whether the doctors’ deliberate failure to act

was objectively reasonable.” Id.

Like my colleagues, I see no principled reason to treat

general conditions-of-confinement claims differently than

medical conditions-of-confinement claims. I therefore agree

18 No. 18-2672

that this case is governed by Kingsley’s objective standard—

but importantly, only at the step in the liability framework

that requires an interpretation of the conditions to which the

plaintiffs were subjected during the three-day water shutoff.

As I’ve just explained, under Kingsley the constitutional

claim still carries a subjective component. To prevail, the

plaintiffs must prove that the defendants acted purposefully,

knowingly, or recklessly; negligence is not enough. In addi-

tion, nothing in Kingsley removed the threshold requirement

in every conditions-of-confinement claim: “the inmate must

show that he is incarcerated under conditions posing a

substantial risk of serious harm.” Farmer v. Brennan, 511 U.S.

825, 834 (1994). That’s because only “objectively [and] suffi-

ciently serious” deprivations are actionable as a violation of

the Constitution. Id. (quotation marks omitted). Typically,

this refers to the denial of life’s basic necessities, such as

“adequate food, clothing, shelter, and medical care.” Id. at

832.

So to prevail on a claim alleging unconstitutional condi-

tions of pretrial confinement, the plaintiff must prove three

elements: (1) the conditions in question are or were objec-

tively serious (or if the claim is for inadequate medical care,

his medical condition is or was objectively serious); (2) the

defendant acted purposefully, knowingly, or recklessly with

respect to the consequences of his actions; and (3) the de-

fendant’s actions were objectively unreasonable—that is,

“not rationally related to a legitimate governmental objective

or … excessive in relation to that purpose.” Kingsley, 135 S.

Ct. at 2473–74.

With these understandings, I agree that the qualified-

immunity defense fails at this early stage of the litigation.

No. 18-2672 19

Qualified immunity is normally hard to win on a

Rule 12(b)(6) motion. See, e.g., Reed v. Palmer, 906 F.3d 540,

548–49 (7th Cir. 2018). This case is no exception. The factual

allegations in the complaint describe a three-day water

shutoff in the Lake County Jail in which the plaintiffs and

other inmates were deprived of the minimal amount of

water necessary to stay hydrated, take medication, maintain

basic hygiene, and flush waste from their cell toilets. The

complaint further alleges that as a result of the deteriorating

conditions during the three-day shutdown, the plaintiffs and

other inmates suffered “a variety of ailments, including but

not limited to, dehydration, migraine headaches, sickness,

dizziness, constipation, and general malaise.” Finally, the

complaint alleges that the defendants intentionally and with

deliberate indifference subjected the plaintiffs and other

inmates to these conditions. I agree with my colleagues that

these allegations state a claim for “denial of the minimal

civilized measure of life’s necessities,” Farmer, 511 U.S. at 834

(quotation marks omitted), a clearly established constitu-

tional violation. Majority Op. at pp. 5–6.

The defendants say they had a legitimate purpose for

shutting off the water (to replace a water pump) and the

ensuing conditions in the jail were not excessive in relation

to that purpose. As my colleagues note, the factual basis for

this argument lies outside the complaint. Regardless, we

cannot evaluate the defendants’ response to the water-pump

contingency without a factual record. At this stage we take

the allegations in the complaint as true, and the plaintiffs are

entitled to all reasonable inferences in their favor. The de-

fendants may of course renew their immunity claim as the

facts develop. Reed, 906 F.3d at 548–49 (explaining the differ-

ence in the qualified-immunity analysis at the pleadings

20 No. 18-2672

stage and on summary judgment). For now, the district

judge was right to reject the defense.