Board, Herbert L. v. Farnham, Karl ( 2005 )

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